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948a582a-f45e-4efb-8067-7573769734a8 | Chatham v. CSX Transp., Inc. | 613 So. 2d 341 | 1911147 | Alabama | Alabama Supreme Court | 613 So. 2d 341 (1993)
William A. CHATHAM
v.
CSX TRANSPORTATION, INC.
1911147.
Supreme Court of Alabama.
January 22, 1993.
*343 Joel F. Alexander III, Birmingham, for appellant.
James F. Walsh and E. Berton Spence of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
SHORES, Justice.
This Court's opinion of December 11, 1992, is withdrawn and the following opinion is substituted therefor.
William Chatham appeals from a summary judgment entered in favor of CSX Transportation, Inc. Chatham filed a complaint against CSX in 1990 under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60, for damages for a loss of hearing he claimed to have incurred while he was employed by CSX as a carman. CSX moved for a summary judgment on the theory that Chatham's claim was time-barred under the FELA's three-year statute of limitations because he first learned in 1983 that his hearing loss might be work related. Chatham then filed an amended two-count complaint, claiming damages for deterioration of his hearing that had occurred within the three years before he filed this action and based on what he claimed was a negligent assignment by CSX that he says resulted in a subsequent aggravation of his existing hearing problem. The trial court entered a summary judgment in favor of CSX on all of Chatham's claims. Because Chatham did not properly raise any factual issues regarding his amended complaint, we affirm the judgment.
A summary judgment is proper when there exists no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P.; King v. Breen, 560 So. 2d 186 (Ala.1990). In determining whether a summary judgment was properly entered, this Court will view the evidence in a light most favorable to the nonmovant and will resolve all reasonable doubts concerning the existence of a genuine issue of material fact against the moving party. Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So. 2d 256 (Ala.1991). In determining the existence or absence of a genuine issue of material fact, this Court is limited to a consideration of the factors that were before the trial court when it ruled on the summary judgment motion. Broadmoor Realty, Inc. v. First Nationwide Bank, 568 So. 2d 779 (Ala.1990). However, this Court's reasoning is not limited to that applied by the trial court. Hill v. Talladega College, 502 So. 2d 735 (Ala.1987).
Once the moving party makes a prima facie showing that no genuine issue of material fact exists, then the burden shifts to the nonmovant to go forward with 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). Evidence submitted by a nonmovant in opposition to a motion for summary judgment must be in a form admissible in evidence; affidavits must be based on personal knowledge and must contain information *344 that allows more than speculative inferences; documents must be admissible in evidence as either sworn or certified copies. Rule 56(e), Ala.R.Civ.P.; Perry v. Mobile County, 533 So. 2d 602, 604 (Ala.1988). A party must move the trial court to strike any nonadmissible evidence that violates Rule 56(e). Failure to do so waives any objection on appeal and allows this Court to consider the defective evidence. Perry at 604-05.
The record reveals that Chatham and his employer became aware in 1977 that he had virtually no hearing in his left ear; upon learning that, his employer disqualified him from operating any wrecker or crane or working in the train yard. Chatham's employer apparently again in 1982 restricted him from operating a crane, because he was then wearing a hearing aid. Chatham learned from a physician in 1983 that the total hearing loss in his left ear was due to an earlier illness, but that he had sustained an untreatable hearing loss in his right ear due to his work environment at the railroad. (Deposition Exhibit 1, attached to defendant's motion for summary judgment, at R.15.) Chatham contends that, at his employer's request, he received hearing loss tests at various times throughout the course of his employment.
Interpretation of FELA claims and the determination of the degree of negligence necessary to support an FELA claim are questions governed by federal law. See Southern Ry. v. Roberts, 380 So. 2d 774, 776 (Ala.1980), overruled on other grounds, Tidball v. Orkin Exterminating Co., 583 So. 2d 239 (Ala.1991). "The `slight negligence' necessary to support an FELA action is defined as a failure to exercise great care and that burden of proof is much less than the burden required to sustain recovery in ordinary negligence actions." Id. Federal courts have interpreted two Supreme Court cases, Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018, 93 L. Ed. 1282 (1949), and United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979), to mean that an FELA claim accrues, and the statutory period of limitations begins to run, "when the plaintiff possesses sufficient critical facts from which the injury and its cause, including its work-relatedness, should be plainly known." McCoy v. Union Pac. R.R., 102 Or.App. 620, 623-24, 796 P.2d 646, 648 (1990) (citing DuBose v. Kansas City Southern Ry., 729 F.2d 1026, 1030 (5th Cir.), cert. denied, 469 U.S. 854, 105 S. Ct. 179, 83 L. Ed. 2d 113 (1984)). Thus, a cause of action under the FELA arises when a claimant is, or reasonably should be, aware of his or her injury and knows, or in the exercise of reasonable diligence should know, of facts that indicate that the cause of the injury is work related.
Chatham admits that he was aware in 1983 of his hearing loss in his right ear and of its work-relatedness. He contends that the running of the limitations period should be tolled under the "continuous tort" doctrine of Fowkes v. Pennsylvania R.R., 264 F.2d 397 (3d Cir.1959). The continuous tort doctrine applies when an employer repeatedly exposes an employee to an occupational hazard, the deleterious effects of which accumulate over a period of time greater than the applicable period of limitations before the employee becomes aware of any injury.
Although the injury in Fowkes evolved from a series of incidents over a long time, the case is narrowly interpreted by most federal courts because the plaintiff in Fowkes did not discover his injury and its work-related cause until within three years of filing suit.[1]"Fowkes can be fairly read as implying that had identification of the injury and its cause occurred before employment terminated, the discovery of injury (and cause) rather than the cessation of work would have marked the beginning of the limitations period." Kichline v. Consolidated Rail Corp., 800 F.2d 356, 359 (3d Cir.1986). We adhere to this clarification, which brings Fowkes in line with modern application of the continuing tort doctrine to FELA cases.
*345 Chatham further relies on Fletcher v. Union Pac. R.R. for the following proposition:
Fletcher v. Union Pac. R.R., 621 F.2d 902, 908 (8th Cir.1980), cert. denied, 449 U.S. 1110, 101 S. Ct. 918, 66 L. Ed. 2d 839 (1981). (Citations omitted.)
Chatham's reliance on Fletcher is misplaced as far as it applies to any tolling of the limitations period on Chatham's original claim, because the passage quoted from Fletcher concerned the question whether the limitations period had run on Fletcher's negligent assignment claim; that period was distinguishable from the limitations period for the claim for the original injury. Id. at 907. Because Chatham was aware of his injury and its cause in 1983, but did not sue until 1990, the limitations period ran out on his original FELA claim for damages based on injuries suffered before 1987, notwithstanding the continuing tort doctrine. See Kichline, supra, 800 F.2d at 360. For the above reasons, we hold that Chatham's original cause of action was time-barred, and that the trial court properly entered the summary judgment for CSX as to Chatham's claim for damages incurred before 1987.
It does not follow, however, that the running of the original limitations period has eliminated all of Chatham's claims against CSX. Id. at 361. Chatham brought two additional claims alleging negligent assignment and continuous exposure (aggravation), in his amended complaint. These claims represent separate FELA causes of action to which the continuous tort doctrine may apply; if it applies, the running of the limitations period is tolled as long as the employer's negligent conduct continues. Kichline v. Consolidated Rail Corp., 630 F. Supp. 50, 55 (E.D.Pa. 1985), affirmed in part, remanded in part, 800 F.2d 356 (3d Cir.1986); Fletcher, supra, at 907-08 (negligent assignment).[2]
The continuous tort doctrine, when applied in FELA cases, allows a plaintiff to have a cause of action against his or her employer for the worsening of existing injuries even though the limitations period has expired on the original cause of action based on the original injury. The running of the statutory period is tolled on the plaintiff's subsequent claims in order to prevent an employer from acquiring the right to continue tortious conduct merely because the employee is aware of the injury and its cause. Fletcher, supra, at 908. This tolling of the running of the limitations period serves only to protect a claimant's right to file an FELA claim alleging aggravation or negligent assignment; it is not intended to allow a potential claimant knowingly to accumulate further injury and thereby increase his or her damages, because such a policy would be contrary to the goals of the FELA. See Lloyd v. Missouri Pac. R.R., 832 S.W.2d 310, 313 (Mo.App.1992).
The vast majority of courts limits recovery to only those damages for injuries (or worsening of existing conditions) that have accrued within the three years before the *346 filing of the action. Because only the most recent injury can be compensated, this promotes the purpose behind the statute of limitations by preventing a claimant from purposefully accumulating injuries over the years in an attempt to increase potential damages awards before finally bringing an FELA claim. Although we think it unrealistic to assume that a potential FELA claimant would knowingly suffer additional injury for the chance of a higher damages award, some courts have used this argument to prevent claims for aggravation of injuries occurring within three years of filing the action once the original statute of limitations has run. See Lloyd, supra; Frasure v. Union Pac. R.R., 782 F. Supp. 477 (C.D.Cal.1991).
Aggravation and negligent assignment are two distinct causes of action containing separate elements of proof; both require a showing of employer negligence, but a claim of negligent assignment requires additional proof that the employer was aware of the employee's condition. Kichline, supra, 800 F.2d at 361.
Chatham can claim damages for aggravation of his hearing loss if he can show a deterioration in his hearing caused by his work environment during the three years before he filed this action and can establish the railroad's negligence in exposing him to injurious working conditions, even if CSX was unaware of his existing hearing impairment. See id. We note that Chatham's awareness of potential additional work-related hearing loss during that period might not bar his claim for aggravation, but rather would go to the issue of contributory negligence. Id.
A trial court errs in entering a summary judgment if a factual issue exists as to whether any actionable claim remains for hearing loss that accrued within the statutory period before the filing of the action. Billman v. Missouri Pac. R.R., 825 S.W.2d 525, 528 (Tex.Ct.App.1992). Whether CSX was negligent, whether additional hearing loss occurred during the statutory period, and, if so, whether such loss was caused by Chatham's work environment, are genuine issues of material fact that, if properly raised before the trial court and when taken in the light most favorable to the nonmovant, could preclude a summary judgment on Chatham's aggravation claim.
Chatham failed, however, to raise any of these issues in a sworn affidavit based on personal knowledge, or in any other form admissible in evidence, as is required of a nonmovant when opposing a properly supported motion for summary judgment. The documents attached to Chatham's brief in opposition to summary judgment that could have raised a genuine issue of material fact were not properly authenticated, and they were, thus, inadmissible hearsay that cannot be relied on to defeat a motion for summary judgment. Perry v. Mobile County, supra, at 604. CSX moved the trial court to strike the inadmissible evidence; thus, we may not consider it on appeal. Id. at 604-05. Because nothing in the record indicates that Chatham presented any admissible evidence in opposition to CSX's motion for summary judgment, we cannot say that the trial court erred in entering the summary judgment for CSX as to Chatham's aggravation claim. Therefore, we affirm that portion of the summary judgment that relates to the aggravation claim.
Similar reasoning applies to our review of the trial court's summary judgment against Chatham's negligent assignment claim for any alleged hearing loss suffered within three years of filing suit. A claim of negligent assignment requires proof that the employer knew of its employee's injury but nevertheless assigned that employee to unsuitable work, Kichline, supra, 800 F.2d at 361, or failed to provide the employee adequate protection from continuing harm. "Whether the assignment was negligent is a question of fact." Fletcher, supra, at 909 (citations omitted).
Kichline, supra, 630 F. Supp. at 55.
Once a plaintiff in a negligent assignment case proves that injury
Fletcher, supra, at 907-08. The plaintiff must show that the assignment caused his present condition, and causation under the FELA is shown if "the railroad's negligence played any part, however small, in the injury which is the subject of the suit." Id. at 909 (citations omitted). The injury may be due to "the cumulative effect of a series of incidents." Id. Finally, the plaintiff must prove that the repeated assignment was, in fact, negligent; negligence is shown if it is shown that the railroad "knew or should have known that its assignment exposed the employee to an unreasonable risk of harm." Id. (citations omitted). Furthermore, "[t]he employee's knowledge of his physical condition does not absolve the railroad of its duty to protect the employee from further injury." Id. (citations omitted).
CSX denies Chatham's claim that it was aware of Chatham's hearing disability and yet continued to subject him to excessive noise levels. Evidence in the record that could support Chatham's opposition to the motion for summary judgment is not in admissible form. CSX moved to strike the inadmissible evidence. Therefore, as with the aggravation claim, the trial court properly disregarded this evidence and properly entered the summary judgment against Chatham on his negligent assignment claim.
For the reasons above, we affirm the summary judgment in favor of CSX on all of Chatham's claims.
APPLICATION GRANTED; ORIGINAL OPINION WITHDRAWN, OPINION SUBSTITUTED; AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur.
[1] The limitations period in Fowkes did not begin to run until after the employee's last day at work, when he was no longer exposed to an adverse work environment.
[2] Both Fletcher and Kichline indicate that the employer's knowledge of the employee's condition is necessary to toll the running of the limitations period on a negligent assignment claim under the FELA. The lower court decision in Kichline, requiring a plaintiff to inform his employer that his condition was being aggravated by his work environment, 630 F. Supp. at 56, was vacated on appeal to allow the plaintiff "to claim damages for the aggravation of his physical condition that occurred between [the date three years before suit was filed and the date plaintiff's employment ended]." Kichline, 800 F.2d at 361. Thus, although a plaintiff in an aggravation claim need not show the employer knew of the plaintiff's existing condition, the plaintiff must prove the employer's negligence in exposing the plaintiff to hazardous working conditions. Id. | January 22, 1993 |
e01907da-f3ac-4ac0-84f0-f27572822201 | Bell v. Killian | 93 So. 2d 769 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 769 (1957)
A. L. BELL, as Adm'r, etc., et al.
v.
G. W. KILLIAN, as Adm'r, etc., et al.
7 Div. 223.
Supreme Court of Alabama.
March 21, 1957.
*772 Scott, Dawson & Scott, Fort Payne, for appellants.
John B. Isbell, L. L. Crawford, W. M. Beck and W. W. Watson, Fort Payne, for appellees.
GOODWYN, Justice.
This is an appeal by respondents below from a final decree of the circuit court of DeKalb County, in equity, rendered in a suit brought by appellees, residuary legatees under the will of H. H. Killian, deceased, for a construction of said will and incidental relief. In the first appeal of this case, the decree of the trial court overruling demurrer to the bill was sustained. Bell v. Killian, 256 Ala. 24, 53 So. 2d 604.
The provisions of the will, executed in 1909, which are pertinent to a decision of the case are as follows:
On the death of H. H. Killian in 1945 his wife Roxiene Killian was duly appointed as executrix. At that time the estate consisted of several tracts of land valued in excess of $50,000 and about $9,000 in bank deposits.
About two years after Mr. Killian's death, Mrs. Killian married A. L. Bell, one of the respondents below and an appellant here. In January, 1950, she died intestate. Her husband was appointed administrator of her estate.
The ultimate effect of the evidence in the case at bar was to show that at the time of Mrs. Bell's death none of the assets of the Killian estate remained in their original form. The uncontroverted evidence showed that while serving as executrix she sold all of the estate's land and transferred the bank deposits of the estate into her personal account. As concluded by the trial court, there was a general commingling of the funds of the estate with Mrs. Bell's personal funds. The evidence further showed that Mrs. Bell purchased a farm with a part of the proceeds of the Killian estate, with herself and A. L. Bell as joint grantees, that another portion of the funds of the estate was used to purchase government bonds in which Mrs. Bell and other parties were designated as coowners; and that the remainder of the funds of the Killian estate was placed in a joint bank account with Mrs. Bell and A. L. Bell as joint depositors. As a result of Mrs. Bell's actions there were no funds or property left in the Killian estate at the time of her death.
The complainants are Bailey Killian and the heirs of Demoville S. Killian. Their bill alleges that under the will of H. H. Killian the widow's right was limited to the use of so much of the property of the estate as was reasonably necessary for her maintenance, well-being, comfort and support, with a remainder over to the two named residuary legatees or their heirs; that the property of the testator's estate not so used, but fraudulently or improperly converted to the use of the widow and her second husband, Bell, was rightfully owned by the residuary legatees, subject to the continued administration of testator's estate until all matters pertaining thereto had been finally and properly concluded.
The first problem to be resolved is the proper construction of the Killian will. It is apparent that it is ambiguous in its provisions, and that judicial construction is necessary.
At the outset, it should be fixed firmly in mind that the ultimate purpose and duty of the courts in construing any will is to ascertain the intention of the testator and give it effect to the extent which the law will permit. Patterson v. First National Bank of Mobile, 261 Ala. 601, 603, 75 So. 2d 471; Watters v. First National Bank of Mobile, 233 Ala. 227, 234, 171 So. 280. To this end the court will put itself as far as possible in the testator's position by taking into consideration the circumstances surrounding him at the time of the execution of the will. Patterson v. First National Bank of Mobile, supra; Adams v. Jeffcoat, 252 Ala. 501, 503, 41 So. 2d 183; Smith v. Nelson, 249 Ala. 51, 55, 29 So. 2d 335; George v. Widemire, 242 Ala. 579, 7 So. 2d 269. Further, the court will consider the will itself as a whole, giving effect to each of its provisions, if possible, so as to form one consistent scheme effectuating the intention of the testator. Watters v. First National Bank of Mobile, supra; Blackwell v. Burketts, 251 Ala. 233, 235, 36 So. 2d 326.
The trial court construed the will as follows:
Appellants insist that the trial court erred in its construction of the will. Their theory of construction is as follows: Paragraph 3 of the will creates an absolute fee in the wife, and subsequent provisions giving the wife the power to control, manage, and sell the assets of the estate merely affirm the testator's intention to give her a clear title to all of his property. Appellants contend that the attempted residuary legacy in paragraph 8 is so vague and uncertain that it cannot cut down the clear gift of a fee to the wife contained in paragraph 3. It is insisted that the following canon must govern our construction of the will: "An absolute estate created in clear and decisive terms, cannot be taken away or cut down to a lesser estate or interest by subsequent words, which are not as clear and decisive." Schowalter v. Schowalter, 217 Ala. 418, 420, 116 So. 116; Hatcher v. Rice, 213 Ala. 676, 678, 105 So. 881; Ralls v. Johnson, 200 Ala. 178, 180, 75 So. 926; O'Connell v. O'Connell, 196 Ala. 224, 229, 72 So. 81.
While this is a recognized principle in the construction of wills, we do not think it is applicable in construing the will before us for the reason that paragraph 3, does not create an absolute fee in clear and decisive terms. The provision reads:
Under our cases, a general devise of this nature which fails to specifically define the extent of the estate created, does not necessarily import an absolute fee if subsequent provisions of the will indicate that the testator intended a lesser estate. Patterson v. First National Bank of Mobile, supra; Higdon v. Higdon, 243 Ala. 571, 574, 11 So. 2d 140; Schowalter v. Schowalter, supra; Hatcher v. Rice, supra.
The applicable rule is thus stated in Patterson v. First National Bank, supra, 261 Ala. page 607, 75 So.2d at page 475.
The reasoning which supports this rule is sound. As with all canons of construction the purpose of the rule is merely to guide the courts in ascertaining the intention of the testator. In order to determine this intent it is obvious that the will must be considered as a whole. Therefore, when the testator makes a general devise without defining the extent of the estate which he wishes to create, and he subsequently provides for a remainder in the same property, it seems only logical to assume that he intended to qualify or limit the initial gift. There is no repugnancy between such provisions and none should be read into the will by the courts.
The rule which appellants rely on has application only when there is direct repugnancy between two provisions in a will. When there is an unqualified provision in a will creating "an absolute estate in clear and decisive terms" it is obvious that any subsequent clause which attempts to *775 cut down or qualify this estate is repugnant to the first clause. Therefore, the courts have soundly reasoned that the intention of the testator to cut down an initial gift of an absolute estate must also be in clear and decisive terms in order to have effect.
The distinction between the fields of application of the two rules of construction set out above is clearly drawn in Schowalter v. Schowalter, supra [217 Ala. 418, 116 So. 118]:
It is our conclusion that the trial court correctly held that the Killian will did not convey a fee simple estate to the wife, and that her interest was qualified by the provision for a remainder to the testator's brothers or their heirs.
However, it is evident that Mr. Killian intended his wife to have more than a bare life estate. Paragraph 5 of the will gives the wife a limited power of disposition:
This provision should be construed in connection with paragraph 7 which gives the wife an absolute power of sale over all of the testator's property:
Here, a careful distinction should be drawn between the wife's "power of sale" and her "power of disposition." An absolute power of sale is given the wife in paragraph 7 of the will. A naked power of sale, even though absolute, is only the authority to pass a good title to property, and does not confer upon the person exercising the power the right to use the proceeds of the sale for his own benefit. In essence, the power of sale merely gives the wife the authority to change the nature of the corpus of the estate without *776 the right to consume any of it. A limited power of disposition is given the wife in paragraph 5 of the will. A power of disposition confers the right to actually consume or use up the corpus. Here, the wife's power of disposition is limited to her reasonable necessities within her own sound discretion. Winn v. Winn, 242 Ala. 324, 328, 6 So. 2d 401.
Construing these two provisions together it seems clear to us that the testator intended to clothe his wife with the absolute authority to sell any of his property, but to limit her consumption of the corpus of the estate to her reasonable necessities within her own sound discretion. Upon her death the unconsumed portion of the corpus passed to the testator's brothers or their heirs, under the express provisions of paragraph 8. It necessarily follows that if the wife exercises her power of sale during her lifetime and thus changes the nature of the corpus, that the remaindermen are entitled to the unconsumed portion of the corpus in whatever form it may be as long as it can be identified. To hold that the rights of the residuary legatees are extinguished merely by the exercise of the power of sale would defeat the clear design of the testator. Winn v. Winn, supra; Smith v. Cain, 187 Ala. 174, 177, 65 So. 367, 368.
In Smith v. Cain, supra, the language of the will under consideration was different from the Killian will, but the testator's overall scheme was essentially the same. The pertinent portion of the opinion in that case is as follows:
Of similar import is Winn v. Winn, supra. The will under consideration in that case provided for a remainder after a life estate with a limited power of disposition for the purpose of support. There we held that upon the death of the life tenant the unconsumed portion of the proceeds from a sale of real estate under the power of disposition passed to the remaindermen.
Having concluded that a mere change in the nature of the corpus of the estate *777 through an exercise of the wife's power of sale does not of itself extinguish the rights of the remaindermen, we are next faced with the question whether the wife could cut off the remaindermen by giving away the assets of the estate to third parties under her power of disposition.
The trial court found that Roxiene Killian Bell, the testator's wife, attempted to defeat the remainder to the testator's brothers by inter vivos gifts of all the assets of the Killian estate. This finding is sustained by the evidence. We are clear to the conclusion that the wife could not defeat the remaindermen in that manner. Such an exercise of the power would impinge on the rights of the remaindermen and defeat the clear intention of the testator. It is expressly stipulated in the will that the wife could consume the corpus only for the purpose of providing for her reasonable necessities. If the wife were allowed to give away the corpus under her power of disposition the intention of the testator would obviously be violated. Braley v. Spragins, 221 Ala. 150, 158, 128 So. 149; Yockers v. Hackmeyer, 203 Ala. 621, 622, 84 So. 709.
In Braley v. Spragins, supra, it is indicated that a life tenant, even though having an absolute power of disposition, could not defeat a stipulated remainder by giving away the assets of the estate. In that case we said [221 Ala. 150, 128 So. 156]:
"In 27 A.L.R. 1388, it is said:
In Yockers v. Hackmeyer, supra, the testator gave to his wife a life estate with a power of disposition limited to several specific purposes. Upon her death the unconsumed remainder of the corpus was to be divided equally among his children. During her lifetime the wife conveyed certain real property belonging to the estate to one of the children without consideration. There we held that the conveyance must *778 be set aside, because the wife's exercise of the power was limited to the purposes set out in the will, and an inter vivos gift of the assets was a violation of her authority.
In conclusion, we find no error in the trial court's construction of the will that under the will "Mrs. Killian, the widow, became a life tenant with power of disposition of so much of the property of the estate as was reasonably necessary for her maintenance, well-being, comfort and support, with remainder over to the two named residuary legatees or their heirs." Such a construction gives a field of operation to each of the provisions of the will in such a manner as to form a cohesive, consistent scheme which we have found to be in accord with the principles of law laid down in our cases, and which we believe to be in accord with the intention of the testator.
It is evident under this construction of the will that upon the death of the life tenant, Mrs. Bell, the unconsumed corpus of the Killian estate must be distributed among the complainants as the residuary legatees. The problem now arises as to exactly what remained of the corpus at the time of her death.
In its decree the trial court found, in effect, that the following property could be identified as the unconsumed corpus of the estate:
(1) A 20 acre tract known as Berry farm the record title to which is in Mrs. Bell and A. L. Bell as grantees, (2) three lots in Pinellas County, Florida, the record title to which is in A. L. Bell, (3) several U. S. Government bonds registered to Mrs. Bell and various third parties as joint owners, (4) $5,000 paid into court as part of the purchase money for the Killian homestead, (5) bank account in the name of Mrs. H. H. Killian in Chattanooga, (6) bank account in the name of A. L. Bell, as administrator, in the State National Bank of Fort Payne.
The trial court found that all of these properties and accounts were actually portions of the corpus of the Killian estate or had been purchased with funds of the estate. The court also concluded from the evidence that Mrs. Bell had attempted to alienate all of this property from the estate by giving it away or by improperly placing it in her own name. Applying the law to these conclusions of fact the trial court held that the residuary legatees were entitled to this property as the unconsumed corpus of the Killian estate. The decree effectuated this holding by imposing a trust upon the property in favor of the complainants as remaindermen.
It seems clear to us that the trial court's application of the law to its conclusions of fact was correct. As we have said earlier, Mrs. Bell could not dispose of the assets of the Killian estate by inter vivos gift. Braley v. Spragins, supra; Yockers v. Hackmeyer, supra. Nor could she withdraw from the Killian estate any of the corpus thereof by placing it in her own name. Bynum v. Swoope, 201 Ala. 19, 75 So. 170; Smith v. Cain, supra. Therefore, any gifts of the estate property by Mrs. Bell, or attempted conversions to her own individual estate, were properly set aside by the court. Further, it is clear that the trial court could impress the trust upon any property which could be actually identified as a part of the corpus of the Killian estate even though it had been changed in form by investment of the estate funds in other types of property. "[For] so long as trust property can be followed, the property into which it has been converted remains subject to the trust." Evans v. Evans, 200 Ala. 329, 330, 76 So. 95, 96; Kennedy v. Carter, 217 Ala. 573, 574, 117 So. 182; Hanover National Bank of New York v. Thomas, 217 Ala. 494, 496, 117 So. 42; Hutchinson v. National Bank of Commerce, 145 Ala. 196, 201, 41 So. 143, 144.
The appellants do not question the general authority of the court to follow the trust property, but they insist that the court erred in impressing the trust upon the Berry farm and the Government bonds.
*779 First we review the correctness of the decree with respect to the Berry farm. The real problem in this phase of the case lies in actually tracing the estate funds to this property.
The difficulty in following the trust funds arises from the fact that the fiduciary, Mrs. Bell, generally and continually commingled her personal funds with the funds of the estate in a single bank account. The evidence shows that during Mrs. Bell's administration of the estate, funds of the estate in excess of $50,000 came into her hands as executrix. A large part of these funds was placed in her personal account at the State National Bank of Ft. Payne, and comprised the great bulk of the deposits made in the account. The evidence is convincing that the entire purchase price of Berry farm was paid by a check drawn on this commingled account. An examination of the bank account indicates that at the time this check was drawn Mrs. Bell's withdrawals had already exceeded her deposits of individual funds. Upon this evidence the trial court concluded that Berry farm had been purchased entirely with funds of the estate and thus impressed the trust thereon.
We think the trial court's decree was clearly correct in this respect. The guiding rule is stated in Hutchinson v. National Bank of Commerce, supra, as follows:
And thus (with closer applicability to this particular situation) in Bank of Florence v. United States Savings and Loan Company, 104 Ala. 297, 300-301, 16 So. 110, 111:
See, also, Evans v. Evans, supra; and Kennedy v. Carter, supra.
Under the authority of these cases we think that the trial court was clearly justified in impressing the trust on this property.
The last question raised on this appeal concerns the correctness of the trial court's decree with respect to the U. S. Government bonds. The decree affects 21 bonds having a total face value of $18,150. Each of these bonds is registered in the names of Mrs. Bell and one of the respondents as co-owners. The trial court found that Mrs. Bell had purchased all of these bonds with funds of the Killian estate and impressed thereon a constructive trust in favor of the complainants. The decree attempts to divest all interest in the bonds out of the various surviving co-owners and to vest title thereto in the administrator cum testamento annexo of the Killian estate. The applicable portion of the decree reads as follows:
Appellants do not appear to question the trial court's finding that all of the bonds were purchased with funds of the Killian estate, but insist that the sole ownership of the bonds is vested in the surviving co-owners by virtue of Treasury Regulations regardless of the equities involved. Their position is that on authority of Ex parte Little, 259 Ala. 532, 67 So. 2d 818, we should hold that the surviving registered co-owners are the sole owners and entitled to possession regardless of the circumstances, legal or equitable.
The holding in Ex parte Little, supra, was as follows: That a U. S. savings bond is a contract between the Federal government and the purchasers, and the rights of the surviving co-owner of a bond arises solely from that contract; that the effect of the Treasury Regulations relating to savings bonds is that upon the death of one co-owner the survivor takes title thereto as sole owner; and that the Treasury Regulations are incorporated into the contract by reference and are beyond the reach of state law to modify or destroy.
That decision appears to be in accord with the view taken by the overwhelming majority of federal and state courts. Chambless v. Black, 250 Ala. 604, 607, 35 So. 2d 348; 91 C.J.S., United States, § 126, p. 316; Annotation, 37 A.L.R.2d 1221.
It seems clear, therefore, that it was beyond the power of the trial court to divest the title out of the registered surviving co-owners by a direct decree. Hence, the decree must be modified so that it will not impair the contractual obligations between the Federal government and the purchasers of the bonds.
Although it is clear that the trial court could not divest title to the bonds out of the surviving co-owners by direct decree (Ex part Little and Chambless v. Black), there is nothing in the Treasury Regulations to prevent the court from imposing a trust on the proceeds of the bonds. In re Hendricksen's Estate, 156 Neb. 463, 56 N.W.2d 711, 719; District of Columbia v. Wilson, 94 U.S.App.D.C. 399, 216 F.2d 630, 633; Moore v. Brodrick, D.C., 123 F. Supp. 108, 109; Anderson v. Benson, D.C., 117 F.Supp, 765, 780; Katz v. Driscoll, 86 Cal. App. 2d 313, 194 P.2d 822, 828; Union National Bank v. Jessell, 358 Mo. 467, 215 S.W.2d 474, 477; Ibey v. Ibey, 93 N.H. 434, 43 A.2d 157, 159.
As is said in District of Columbia v. Wilson, supra [94 U.S.App.D.C. 399, 216 F.2d 633]:
The possible results flowing from an unqualified adoption of appellant's theory is well stated in another Federal case, viz.:
In Katz v. Driscoll, 86 Cal. App. 2d 313, 194 P.2d 822, 828, supra, it is said:
It is our conclusion that the trial court was correct in holding that the complainants were entitled to the beneficial interest in the bonds, but the decree should have impressed the trust upon the proceeds of the bonds and not upon the bonds themselves. The decree should be modified to require the surviving co-owners to cash the bonds and pay the proceeds into court for transfer to the administrator of the Killian estate.
Modified and affirmed.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | March 21, 1957 |
6dba8f3d-0677-4bfe-882d-4838e04c9e9c | Brown v. City of Fairhope | 93 So. 2d 419 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 419 (1957)
M. L. BROWN et al.
v.
CITY OF FAIRHOPE et al.
1 Div. 693.
Supreme Court of Alabama.
March 7, 1957.
*420 Chason & Stone, Bay Minette, and Johnston, McCall & Johnston, Mobile, for appellants.
Beebe & Swearingen, Bay Minette, for appellees.
MERRILL, Justice.
Appellants filed their complaints, consisting of two counts, against the appellees, the City of Fairhope, a municipal corporation, and The Water Works and Sewer Board of the City of Fairhope, a corporation. The defendants filed separate demurrers to the complaint and these demurrers were sustained. Thereupon, appellants took a nonsuit because of the adverse rulings of the court in sustaining the demurrers to the complaint.
Count One of the complaint is as follows:
Count Two is identical with Count One except that it omits any reference to the servants, agents or employees of said defendants and charges that "* * * the defendants so negligently maintained or operated sewer lines" etc.
The appellee, in brief, argues that the action of the trial court should be upheld *421 for any one of the four objections to the complaint, for which there were apt grounds of demurrer. The first objection is that the complaint alleges two distinct causes of action in the same count and that it "joins two defendants as tort-feasors, which under the law could not be engaged in a joint enterprise and could not be joint feasors and hence could not be joined in the same complaint."
Addressing ourselves first to the italicized portion of the statement, there is nothing in the complaint which shows that the defendants could not be engaged in a joint enterprise under the law. That is a matter of pleading and proof and could only be brought to the court's attention on demurrer by a "speaking demurrer," which is improper. It could be that on proof there may be a variance, but the complaint charges that the "defendants" in one count and "the servants, agents or employees of said defendants" in the other, negligently maintained and operated the sewer lines. See Sloss-Sheffield Steel & Iron Co. v. Wilkes, 231 Ala. 511, 165 So. 764(21) (22), 109 A.L.R. 385.
Code 1940, Tit. 7, § 139, provides:
We have held that where two defendants are sued as joint tort-feasors, the plaintiff can recover against one of them, although his proof may fail as to the other. See F. W. Woolworth Co. v. Erickson, 221 Ala. 5, 127 So. 534(4, 6); Sloss-Sheffield Steel & Iron Co. v. Wilkes, 236 Ala. 173, 181 So. 276(1). The grounds of demurrer raising the first objections were not well taken. The case of City of Columbiana v. J. W. Kelley & Co., 172 Ala. 336, 55 So. 526, cited by appellee, is not an apt authority.
The second objection is that the complaint does not join as party defendant the agent, servant or employee responsible for the tort complained of, or show cause why not joined as required by § 503, Tit. 37 of the Code of 1940. This section does not apply in the instant case. In discussing code sections, which are now §§ 502 and 503 of Tit. 37, this court, in City of Birmingham v. Corr, 229 Ala. 321, 157 So. 56, 57 said:
The third objection is that "the complaint does not allege the facts constituting the negligence complained of." The statement of a few rules will suffice to show that the grounds of demurrer raising this point were not well taken.
In a count charging negligence, it is sufficient to allege only facts and circumstances from which the law imposes a duty to the plaintiff, and then a general charge of negligence in the performance of that duty without a statement of the particular manner in which it was negligently performed. Wagnon v. Patterson, 260 Ala. 297, 70 So. 2d 244; Birmingham Electric Co. v. Carver, 255 Ala. 471, 52 So. 2d 200.
A count which alleges facts from which negligence may be reasonably inferred, *422 followed by averments of negligence whereby the plaintiff assumes the burden to prove negligence in the particular case, is sufficient as an allegation of defendant's negligence. City of Birmingham v. Young, 246 Ala. 650, 22 So. 2d 169; City of Birmingham v. Smith, 231 Ala. 95, 163 So. 611, and cases cited.
Where the complaint shows a causal connection between the injury and the negligence, the acts constituting the negligence, the quo modo, need not be set out. Vulcan Rivet Corp. v. Lawrence, 214 Ala. 378, 108 So. 3, and cases cited. Here the complaint shows the alleged injury to be the overflowing of raw sewage into plaintiffs' home, and that this was caused by the negligent operation and maintenance of the sewer lines by the defendants, all of which proximately resulted in the listed injuries. The two counts meet the rules cited and were not subject to the third objection.
The last objection raised the point that the maintenance and operation of the sewer lines was a governmental function and that prevents the defendants from being sued. The rationale of the argument is that since the cases of City of Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771, and Ivory v. City of Montgomery, 35 Ala.App. 631, 51 So. 2d 559, hold that the collection of garbage by a municipality is a governmental, and not a corporate, function, and the case of Spear v. Ward, 199 Ala. 105, 74 So. 27, holds that the preservation of public health by the installation of sanitary systems of sewers is within the police power of the municipal government, that the maintenance and operation of sanitary sewers is a governmental function. But our cases hold otherwise. In Sisco v. City of Huntsville, 220 Ala. 59, 124 So. 95, this court said:
See also, City of Birmingham v. Greer, 220 Ala. 678, 126 So. 859; City of Birmingham v. Norwood, 23 Ala.App. 443, 126 So. 616.
These four objections cover all the grounds of the demurrers. It follows that the trial court erred in sustaining the demurrers, and the judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | March 7, 1957 |
8930b6d2-f59b-4c54-b83e-da18d5b35068 | Bell v. Birmingham Broadcasting Co. | 96 So. 2d 263 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 263 (1957)
George A. BELL
v.
BIRMINGHAM BROADCASTING CO., Inc.
6 Div. 60.
Supreme Court of Alabama.
May 9, 1957.
Rehearing Denied June 20, 1957.
*264 Hogan & Calloway and Geo. Peach Taylor, Birmingham, for appellant.
Lange, Simpson, Robinson & Somerville, Wm. L. Clark and Chas. R. Robinson, Birmingham, for appellee.
STAKELY, Justice.
This is a suit by George A. Bell against the Birmingham Broadcasting Company, Inc. The suit seeks to recover damages for the alleged invasion of the plaintiff's right of privacy. This is the third appeal in this case. The case was reversed on the first appeal for error in overruling the defendant's demurrer to each count. Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So. 2d 314. Upon remandment, the plaintiff amended his complaint and trial was had upon Count IXA. Verdict and judgment was rendered for the defendant but upon appeal the cause was reversed for error in certain rulings on the evidence. Bell v. Birmingham Broadcasting Co., 263 Ala. 355, 82 So. 2d 345. A third trial was had which resulted in a mistrial.
The plaintiff then amended his complaint by adding Count IXB which was rendered identical to Count IXA by the trial court granting a motion by the defendant to strike a portion of the count. The demurrers interposed to the complaint as amended and separately and severally to each count thereof were overruled. Whereupon the defendant filed pleas one, two, three, four, five, six, seven, eight and A to the complaint as amended and separately and severally to each count thereof. Demurrer to each plea, except one and two which were the general issue, was filed by the plaintiff. The court sustained the demurrers to each plea except pleas Six and A. The plaintiff then filed a replication to these two pleas. The defendant's demurrer to the replication was sustained by the court. The plaintiff subsequently took a nonsuit with leave to appeal because of the adverse rulings on the demurrer to Plea Six and Plea A and the adverse ruling on the demurrer to the replication.
Two questions are presented for decision. (1) Did the trial court err in overruling the plaintiff's demurrer to Plea Six and Plea A? (2) If not, did the trial court err in sustaining the defendant's demurrer to the plaintiff's replication?
The allegations of the complaint may be summarized in substance as follows. In 1951, the defendant, the Birmingham Broadcasting Company, negotiated and secured contracts with various radio stations throughout Alabama for the right of such stations to carry the defendant's broadcasts of the University of Alabama football games for 1951. In negotiations with these various stations, the defendant used the plaintiff's name as the one who would announce said games for the defendant. The defendant also caused to be published in a newspaper an article stating in substance that the defendant would announce all of the University of Alabama football *265 games for the defendant and its network of stations during the 1951 season. Along with the newspaper was printed a picture of the plaintiff. The defendant also used the plaintiff's name as the one who would announce the games in selling advertising time on the broadcasts.
For the aforesaid commercial purposes, the plaintiff claims the defendant used his name and picture without his consent or permission and with full knowledge of the fact that such uses were not authorized by the plaintiff; that there existed no contract of employment between the plaintiff and the defendant for the purposes of announcing the broadcasts of the 1951 football games to be played by the University of Alabama and that there was no contract or agreement for the aforesaid uses of the plaintiff's name and picture by the defendant nor was the plaintiff subsequently employed to call the games.
The plaintiff further states: "* * * the aforesaid unauthorized uses of his name and picture for commercial purposes violated his right to privacy and as a proximate consequence thereof * * * his character and reputation were damaged and injured; he was caused much humiliation and disgrace, he suffered great loss to his professional standing when it appeared to the members of his profession and the general public that he had been discharged when in fact he had never been employed by the defendant."
In attempting to avoid the allegations of the complaint, special pleas were filed by the defendant alleging in substance that the plaintiff agreed to be available to call or broadcast the Alabama football games for 1951 over the facilities of the defendant and thereby waived his right of privacy in respect to the use of his name and picture in publicizing the football broadcasts.
It appears from the pleadings that the plaintiff and the defendant had merely opened negotiations which may have or may not have ultimately resulted in a contract. The right of privacy, like other rights that rest in an individual, may be waived by him. A waiver or relinquishment of this right, or of some aspect thereof, may be implied from the conduct of the parties and surrounding circumstances. While it is to be conceded that the intent necessary to constitute waiver may be implied from the act of the party involved, the inquiry still is what was the intent of the party as manifested by his actions? Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68, 69 L.R.A. 101; Bell v. Birmingham Broadcasting Co., 263 Ala. 355, 82 So. 2d 345. Waiver depends upon what one himself intends to do regardless of the attitude assumed by the other party. "To make out a case of implied waiver of a legal right, there must be a clear, unequivocal, and decisive act of the party showing such a purpose." 56 Amer. Juris., "Waiver", § 17, p. 118; Johnson v. Kaeser, 196 Cal. 686, 239 P. 324.
"A public character does relinquish a part of his right of privacy * * * [b] such a waiver is limited to that which may be legitimately necessary and proper for public information." Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So. 2d 314, 319. His privacy, however, may not be lawfully invaded by the use of his name and picture for commercial purposes without his consent, not incidental to an occurrence of legitimate news value. If the use of his name or picture is incidental to an occurrence of legitimate news value his right of privacy has not been unlawfully invaded. Birmingham Broadcasting Co. v. Bell, supra. While one who is a public figure or is presently newsworthy may be the proper subject of news or informative presentation, the privilege does not extend to commercialization of his personality through a form of treatment distinct from the dissemination of news or information. See Gautier v. Pro-Football, Inc., 304 N.Y. 354, 107 N.E.2d 485. There is "a fundamental difference between the use of a person's [name and] photographic likeness in connection *266 with or as a part of a legitimate news item in a newspaper, and its commercial use in an advertisement [or negotiations] for the pecuniary gain of the user." Pallas v. Crowley, Milner & Co., 322 Mich. 411, 33 N.W.2d 911, 914.
Certainly, it cannot be said that the plaintiff, under the facts presented by the pleadings, manifested an intent to waive his right of privacy by merely assuring or agreeing to be available to call or broadcast the games in question over the facilities of the defendant, there being no contract of employment between the parties. At best, the facts presented by the pleas are ambiguous and equivocal.
The use of the plaintiff's name and picture to secure pecuniary gain for the defendant cannot be classed as incidental to an occurrence of legitimate news value. Can it be said that the purpose of the newspaper article in question was to present news to the public? We think not. The fact that a person is a public character or legitimate subject of news comment does not justify misleading publicity or misrepresentation. See Sinclair v. Postal Telegraph & Cable Co., Sup., 72 N.Y.S.2d 841.
Courts frequently use the language of implied consent to deny recovery to "public characters." The true distinction, however, is not between public and private characters, but between matters of public and private interest. See Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So. 2d 314. The determining factor is the content and character of the publication, not the standing of the individual. Even the most famous have a right to be protected against the unauthorized commercial appropriation of their names and photographs. The waiver concept carelessly applied to persons who are "public figures" can lead to unjust results as readily as the careless application of the right of privacy.
We, therefore, conclude for the reasons given that the defendant's Plea Six and Plea A do not allege sufficient facts to constitute a waiver of the plaintiff's right of privacy. Consequently, the plaintiff's demurrer to these pleas should have been sustained.
In view of the conclusion reached, it is not necessary to consider the trial court's ruling sustaining the defendant's demurrer to the plaintiff's replication.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | May 9, 1957 |
31ee50dc-eea6-4546-a58d-82988c6da63e | American Automobile Insurance Co. v. English | 94 So. 2d 397 | N/A | Alabama | Alabama Supreme Court | 94 So. 2d 397 (1957)
AMERICAN AUTOMOBILE INSURANCE COMPANY
v.
F. M. ENGLISH and Alabama Farm Bureau Mutual Casualty Insurance Co., Inc.
4 Div. 824.
Supreme Court of Alabama.
March 7, 1957.
Rehearing Denied April 25, 1957.
*398 Jack Crenshaw, Montgomery, for appellant.
Thos. F. Parker and J. O. Sentell, Jr., Montgomery, for appellees.
LIVINGSTON, Chief Justice.
F. M. English and Alabama Farm Bureau Mutual Casualty Insurance Co., hereinafter referred to as Farm Bureau, filed a bill in the Circuit Court of Coffee County, Alabama, in Equity, seeking a declaratory judgment against American Automobile Insurance Co., hereinafter referred to as American. Covington Motor Co., hereinafter referred to as Covington, Frances Grantham and Frances Grantham, as administratrix of the estate of Charles L. Grantham, deceased, were joined as party respondents. The bill averred that English owned a 1947 Ford truck, which was covered by a policy of liability insurance issued to English by Farm Bureau.
The bill further averred that on November 3, 1952, English purchased a new 1952 Ford truck from Covington and took possession of it pursuant to a conditional sales contract. By the terms of the purchase, English traded in the aforementioned 1947 Ford truck as a down payment on the new truck; however, by agreement of the parties, English was allowed to retain possession of the 1947 truck until an appropriate body could be affixed to his new 1952 truck. On November 4, 1952, while driving said 1947 truck, English was involved in an automobile accident in Coffee County, Alabama, with a car driven by Charles L. Grantham, deceased, and in which Frances Grantham was riding as a passenger. As a result of this accident, suits were filed against English by Frances Grantham, individually, and as administratrix of the estate of Charles L. Grantham, deceased.
It was also averred by said bill that shortly after the accident, Covington took possession of the 1947 truck, which had been traded in to Covington on November 3rd and which was involved in said accident on November 4th, and has been in possession of said truck since that time. It made no attempt to avoid the sale or to return the wrecked truck to English, and has continued to accept monthly payments from English in accordance with the contract sale.
The bill averred that at the time of said accident, Covington had a general garage liability policy issued by American which protected a user of a vehicle owned by Covington when used with the permission of Covington.
The bill was amended by adding thereto the following:
Farm Bureau and English demanded of American that it undertake the defense *399 of the aforesaid suits and pay any judgments recovered by "reason of said suits. American failed to assume any responsibility for the defense of the suits and expressly denied liability in connection therewith. This bill was brought seeking a declaratory judgment that American was primarily liable to defend any actions and to pay any judgments rendered against English in such actions, and that Farm Bureau was under no obligation to assist in the defense of any litigation arising out of said accident or to pay any judgments which may be recovered as a result thereof until the policy coverage of American had been exhausted.
A final decree was entered to the effect that American is primarily liable under its policy of insurance covering Covington, and that Farm Bureau is only liable under its policy for liability in excess of the coverage provided by American's policy covering Covington. American appealed.
American's plea in abatement to the venue of the Circuit Court of Coffee County, in Equity, was adjudged insufficient as against the bill as amended.
American concedes that if Frances Grantham, as administratrix, was a material party to the action, the Circuit Court of Coffee County had venue. A material party is one who is really interested in the suit; one against whom a decree is sought, so that his interest is in a sense antagonistic to that of the complainant. State Farm Mut. Auto Ins. Co. v. Sharpton, 259 Ala. 386, 66 So. 2d 915; Wilder v. Crook, 250 Ala. 424, 34 So. 2d 832; First Nat. Bank of Birmingham v. Johnson, 227 Ala. 40, 148 So. 745; Ex parte Fairfield-American National Bank, 223 Ala. 252, 135 So. 447; Lewis v. Elrod, 38 Ala. 17. In State Farm Mut. Auto Ins. Co. v. Sharpton, supra, [259 Ala. 386, 66 So. 2d 917] this court held that the parties who had instigated actions against the insured were material parties when the insurer sought a declaratory judgment that it was not liable for any judgment rendered in the actions for damages covered by its policy of insurance. In that case, it was stated:
In 1 Anderson, Actions for Declaratory Judgments, §§ 137, 253, it is stated:
In the present case, Farm Bureau does not seek to be absolved of all liability, but to be held liable only as the excess insurer if the policy coverage of American is exhausted, and to be relieved of the duty of defending. This difference, however, does not distinguish this case from the Sharpton case. If a judgment was rendered in favor of Frances Grantham, as administratrix, she would have the right to enforce it against Farm Bureau under Sections 11 and 12, Title 28, Code of 1940. Therefore, Frances Grantham, as administratrix, was a material party and there was no error in the court holding that American's plea in abatement was insufficient.
*400 An appellant cannot insist upon error in the overruling of a demurrer interposed by his correspondent who is not complaining of the ruling. Watt v. Combs, 244 Ala. 31, 12 So. 2d 189, 145 A.L.R. 667; Middlebrooks v. Moore-Handley Hardware Co., 209 Ala. 526, 96 So. 410; Larkin v. Haralson, 189 Ala. 147, 66 So. 459.
The test of the sufficiency of a bill in a declaratory judgment proceeding is not whether the complaint shows that the complainant will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all. If the bill of complaint states the substance of a bona fide justiciable controversy which should be settled, a cause of action for a declaratory judgment is stated and the demurrers should be overruled. Mobile Battle House, Inc., v. City of Mobile, 262 Ala. 270, 78 So. 2d 642; Waterworks and Sanitary Sewer Board v. Dean, 260 Ala. 221, 69 So. 2d 704; Percoff v. Solomon, 259 Ala. 482, 67 So. 2d 31, 38 A.L.R.2d 1100; Evers v. City of Dadeville, 258 Ala. 53, 61 So. 2d 78; White v. Manassa, 252 Ala. 396, 41 So. 2d 395; City of Bessemer v. Bessemer Theatres, Inc., 252 Ala. 117, 39 So. 2d 658. The bill in the present case states the substance of a bona fide justiciable controversy. The right to a judicial declaration of liability or nonliability upon the happening of an accident has been given full recognition in this state in the following cases: State Farm Mut. Auto Ins. Co. v. Sharpton, supra; Reed v. Fidelity & Casualty Co. of New York, 254 Ala. 473, 48 So. 2d 773; United States Fidelity & Guaranty Co. v. Hearn, 233 Ala. 31, 170 So. 59, as has the right to a judicial declaration of the priorities of liability. Louisville Fire & Marine Ins. Co. v. St. Paul Fire & Marine Ins. Co., 252 Ala. 532, 41 So. 2d 585; Farm Bureau Mut. Automobile Ins. Co. v. Preferred Acc. Ins. Co., D.C., 78 F. Supp. 561; Maryland Casualty Co. v. Hubbard, D.C., 22 F. Supp. 697. There was no error in the trial court overruling American's demurrer.
American contends that on November 3, 1952, English and Covington made an executory contract to sell the 1947 truck which was involved in said accident on November 4, 1952, such contract not becoming executed until said truck was delivered to Covington. Farm Bureau contends that there was a sale of said truck by English to Covington on November 3, 1952. The intention of the parties determines when a contract to sell is executed. Sec. 24, Title 57, Code 1940. The intention of the parties is a question of fact rather than one of law. Hyatt v. Reynolds, 245 Ala. 411, 17 So. 2d 413; Loval v. Wolf, 179 Ala. 505, 60 So. 298; Cook & Laurie Contracting Co. v. Bell, 177 Ala. 618, 59 So. 273; 2 Williston, Sales, § 262 (Rev.Ed.); Benjamin, Sale 346 (6th Ed.). The trial court found that title to the 1947 truck passes to Covington on November 3, 1952. A chancellor's findings of fact on oral testimony given before him are presumed to be correct. Brown v. Oldham, 263 Ala. 76, 81 So. 2d 331; Harrison v. Harrison, 261 Ala. 648, 75 So. 2d 620; Tilley v. Tucker, 261 Ala. 287, 73 So. 2d 923. In the instant case, we are unable to say that the finding of the trial court is palpably wrong or unjust. Authorities, supra.
American argues that the trial court erred in placing the primary liability on American and decreeing that Farm Bureau was liable only in excess of the coverage provided in the policy of insurance issued by American to Covington. Farm Bureau has not appealed and is not here complaining of that holding by the trial court. We are holding that at the time of the accident the 1947 Ford truck was owned by Covington. The policy issued by Farm Bureau to English on said truck contained the following:
The 1952 Ford truck was delivered to English on November 3rd; therefore, unless *401 some subsequent insuring agreement in the Farm Bureau policy affords additional insurance to English, the Farm Bureau policy would not in any way cover the accident on November 4, 1952. Farm Bureau, in effect, admits that Insuring Agreement V does afford additional insurance to English. Insuring Agreement V reads as follows:
In our opinion, and we hold that, the Insuring Agreement V did cover English in the operation of the 1947 Ford truck on November 4th, although the truck itself was not covered and English had purchased in his own name the license tags for said truck before the accident occurred. The purchase by English of the license tags in his own name may be some evidence of ownership, but it is not conclusive, and the trial court found, on sufficient evidence, that he did not own it on November 4th. We are cited to no statute in Alabama, and our search has not revealed one, requiring the registration of automobiles or trucks. Section 706, Title 51, Code 1940, provides, in substance, that when proper motor vehicle license tags shall have been bought for the current tax year for a motor vehicle, and such motor vehicle is sold or transferred, by compliance with Sec. 706, supra, the license tags go with the vehicle for that tax year.
Subdivision (a) of Insuring Agreement V simply means that English is not covered by the Farm Bureau policy here involved while operating other automobiles or trucks owned by him or furnished to him for regular use by someone else. We think it obvious that Subdivision (a) of Insuring Agreement V is designed to prevent an insured, who owns or regularly uses more than one vehicle, from securing one policy of insurance covering a specific vehicle and operating other vehicles under the coverage of that one policy.
Subdivision (b) has no application here.
Subdivision (c) provides that Insuring Agreement V does not apply to any automobile not of a private passenger type, and it is argued that a truck is not of a private passenger type. The argument overlooks that Insuring Agreement V itself applies to "The use of other Private Automobiles or Trucks."
Condition 14 of the policy issued by Farm Bureau to English expressly provides that the insurance under Insuring Agreement V shall be excess insurance over any other valid and collectible insurance available to the insured.
The trial court correctly held that American is primarily liable for any judgment *402 arising out of the two suits at law against English, and that Farm Bureau liability under its policy is to pay the excess after the coverage of American is exhausted.
American, with knowledge of all pertinent facts, denied liability solely on the ground that it was not the primary insurer in the present situation. When an insurer specifically denies liability on one ground, it thereby waives all other grounds of forfeiture. Rhode Island Ins. Co. of Providence, R. I. v. Holley, 226 Ala. 320, 146 So. 817; Travelers Ins. Co. v. Plaster, 210 Ala. 607, 98 So. 909; Fidelity-Phoenix Fire Ins. Co. v. Ray, 196 Ala. 425,72 So. 98; National Life & Accident Ins. Co. v. Singleton, 193 Ala. 84, 69 So. 80; Security Ins. Co. v. Laird, 182 Ala. 121, 62 So. 182; Georgia Home Ins. Co. v. Allen, 128 Ala. 451, 30 So. 537; 16 Appleman, Insurance Law and Practice, § 9260, p. 837; 45 C.J.S., Insurance, § 1005, p. 1230. Thus, when American specifically denied liability on the ground that it was not the primary insurer, it waived forfeiture for lack of sufficient notice and cooperation on the part of insured. Liverpool & London & Globe Ins. Co., Ltd., of England v. McCree, 213 Ala. 534, 105 So. 901; Travelers Ins. Co. v. Plaster, supra; 8 Appleman, Insurance Law and Practice, § 4747, p. 146; Indemnity Ins. Co. of North America v. Forrest, 9 Cir., 44 F.2d 465; Hunter v. Hollingsworth, 165 Va. 583, 183 S.E. 508; 8 Appleman, Insurance Law and Practice, § 4786, p. 185. Moreover, the question of cooperation of English with American is one of fact, and although the trial court made no specific finding as to this fact, the effect of the decree is that it has been determined by the trial court adversely to appellant on testimony taken orally before it.
The decree of the lower court is affirmed.
Affirmed.
LAWSON, STAKELY and MERRILL, JJ., concur. | March 7, 1957 |
02c569c8-3a06-4627-8b93-120405adb34c | Goodyear Tire & Rubber Company v. Downey | 96 So. 2d 278 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 278 (1957)
GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA
v.
M. H. DOWNEY.
7 Div. 218.
Supreme Court of Alabama.
March 21, 1957.
Rehearing Denied June 27, 1957.
*279 Hood, Inzer, Martin & Suttle, Gadsden, for appellant.
Hawkins & Rhea, Gadsden, for appellee.
GOODWYN, Justice.
This proceeding was commenced in the circuit court of Etowah County for the recovery of benefits under the Alabama Workmen's Compensation Law, Code 1940, Tit. 26, § 253 et seq., as amended, by Morton H. Downey, appellee, for disability allegedly resulting from an accident which arose out of and in the course of his employment by Goodyear Tire and Rubber Company of Alabama, defendant below and petitioner here. The trial court awarded compensation to the plaintiff and the case is here on certiorari.
The Company admitted in its answer to the complaint that the relationship of employer and employee existed between it and the plaintiff at the time of the accident and that they were subject to the Workmen's Compensation Law of Alabama then in force; that plaintiff suffered the alleged accident "which arose out of and in the course of his employment, of which accident defendant had notice", and that on the date of said accident "the plaintiff was a married man living with his wife and two dependent children under 18 years of age." As to the accident and the injuries sustained by plaintiff, the answer alleges the following:
Evidence was taken orally before the trial court from which the court found, as a part of its finding of facts, § 304, Tit. 26, Code 1940, that plaintiff had suffered a "permanent partial disability to the extent of 35%". Judgment was thereupon entered awarding compensation at the rate of $21 per week for 300 weeks, it being ordered that accrued payments be paid in a lump sum less the payments already made by defendant to plaintiff. The defendant thereupon, within thirty days after rendition of the judgment, filed a motion to set aside the judgment and grant a new trial. One ground of the motion was that there was "no determination or finding of fact in said judgment of the difference, if any, between the average weekly earnings of plaintiff at the time of the injuries and the average weekly earnings he is able to earn in his partially disabled condition". Thereafter, more than thirty days after the judgment but while the motion for new trial was still pending, Code 1940, Tit. 13, § 119, the finding of facts was amended by adding thereto the following:
After making this amendment the motion for new trial was denied and the company brought certiorari.
There seems to be no question that the compensation to which plaintiff is entitled is controlled by schedule (C)6 of § 279, Tit. 26, Code 1940, as amended by Act No. 36, appvd. June 2, 1949, Acts 1949, pp. 47-52, which provided as follows:
It is insisted by the company that since the evidence shows that plaintiff, after his injury, received the same salary which he received prior thereto, that this excludes the idea that his ability to earn has been decreased as a result of his disability. While this might presumptively indicate that his ability to earn has not been impaired, the mere fact that his employer pays him the same earnings in his disabled condition as it did before he was injured is not the sole determining factor. The statute does not prescribe comparative wages received before and after the injury as the test of the employee's ability to earn. *281 Instead, the test is the difference between the average weekly earnings at the time of the injury and the average weekly earnings the employee "is able to earn in his partially disabled condition". It seems to us that this clearly excludes any notion of limiting the determination of a loss in ability to earn to the one question of wages actually earned after the injury as compared with those earned before. There are other factors which may be considered. In this connection we quote the following from Larson's Workmen's Compensation Law, Vol. 2, § 57.21, pp. 4-6:
See, also, § 57.22 and §§ 57.31 through 57.35, Larson's Workmen's Compensation Law, Vol. 2, pp. 7-17.
From Horovitz on Workmen's Compensation, page 276, is the following:
For discussions as to the right to compensation as affected by the fact that an injured employee earns or is offered as much as or more than before the injury, see 149 A.L.R. 413; 118 A.L.R. 731; 17 A.L.R. 205.
See, also, the discussions in Birmingham Post Co. v. McGinnis, 256 Ala. 473, 477, 55 So. 2d 507; Alabama By-Products Co. v. Landgraff, 248 Ala. 253, 257-258, 27 So. 2d 215; Nashville Bridge Co. v. Honeycutt, 246 Ala. 319, 325, 20 So. 2d 591; and Agricola Furnace Co. v. Smith, 239 Ala. 488, 492, 195 So. 743, 746. We quote the following from the Agricola case:
This brings us to the question whether the trial court's finding of a 35% decrease in earning capacity is supported by competent evidence. In resolving this question we are controlled by the established rule of review in workmen's compensation cases, thus stated in Bass v. Cowikee Mills, 259 Ala. 391, 393, 67 So. 2d 12, 13:
Although all factors which possibly might have influenced the trial court in determining the employee's earning capacity were not brought out in the evidence, we are unable to say that no evidence or reasonable inference from evidence bearing on the question was presented. In this situation the finding and judgment will not be disturbed.
Another finding which the company insists is not supported by legal evidence is as follows:
While the evidence on this point was meager, we do not think, in the light of the stated rule of review, we would be warranted in saying that it was insufficient to support the finding of the trial court.
We here note that subsec. (A) of § 279, as amended by Act No. 36, supra, provided for a maximum compensation of "fifty-five percent of the average weekly earnings received at the time of injury, subject to a maximum compensation of twenty-one dollars per week." It was admitted, and was found by the court, that plaintiff's average weekly earnings for 52 weeks prior to the accident were $99.40 per week. Subsection (H) of § 279, as amended by Act No. 36, supra, provided as follows:
The effect of this, of course, is to raise, in the case of an employee with as many as two dependents, the percentage provided for in subsection (C)6 from fifty-five percent to sixty-five percent of the difference between the average weekly earnings at the time of the injury and the average weekly earnings the employee is able to earn in his partially disabled condition. If plaintiff's ability to earn has been reduced by 35%, as found by the trial court, it is apparent that the plaintiff would be entitled to the maximum weekly payment of $21 authorized under subsection (A) of Section 279, as amended by Act No. 36, supra. The agreed average weekly earnings at the time of the injury being $99.40, the difference between this and the "average weekly earnings he is able to earn in his partially disabled condition" ($99.40 less 35% thereof, or $64.61) is $34.79. Sixty-five percent of $34.79 equals $22.61. Accordingly, plaintiff would be entitled to the maximum of $21 per week if his ability to earn in his partially disabled condition has been decreased by 35% as found by the trial court. We make this observation to show that the award made by the court conformed to the court's findings.
The judgment of the circuit court is affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur.
On Application for Rehearing and Motion to Modify Judgment of Affirmance.
PER CURIAM.
The order granting certiorari provided "that the judgment of the Circuit Court of Etowah County will be superseded upon the *284 defendant, Goodyear Tire & Rubber Company of Alabama, a corporation, entering into a supersedeas bond in the sum of $5,000, with good and sufficient surety or sureties, payable to the plaintiff, M. H. Downey, and conditioned to prosecute the appeal by certiorari to effect, or, if it fails therein, to satisfy such judgment and costs as the Supreme Court may render in the premises. Said bond to approved by the Clerk of the Circuit Court of Etowah County, Alabama."
The prescribed bond was entered into, the condition thereof being as follows:
The judgment of affirmance contains the following provision:
The award of 10% damages was made pursuant to Code 1940, Tit. 7, § 814, as amended, which provides as follows:
Petitioner insists it was error to render said judgment for damages for the reason that § 814, supra, applies only to cases which come here by appeal; that this case is here for review by certiorari, not by appeal; hence § 814 has no application.
It does not appear that this court has rendered a written opinion on this question. However, since the case of DeBardeleben Coal Corp. v. Richards, 1948, 251 Ala. 324, 37 So. 2d 121, straight judgments of affirmance in workmen's compensation cases have consistently included the 10% damages provided for in § 814, supra. It further appears that this court, in the DeBardeleben case, included, for the first time, a provision for giving a supersedeas bond. Prior to that case such bonds were not provided for and judgments of affirmance in workmen's compensation cases did not include the 10% damages. In each subsequent case involving the review of a judgment awarding compensation a bond has been provided for. The practice has been for a justice of this court (§ 18, Tit. 13, Code 1940) to grant the writ of certiorari as a matter of course, at the same time fixing the amount of the bond, to be approved by the clerk of the circuit court. Such bond has generally been fixed in double the amount of the judgment for accrued compensation payments and the estimated number of payments to accrue between the time of the judgment and a decision here. As a rule such estimate has included payments accruing within twelve months after the judgment. The 10% damages have been assessed against the defendant-petitioner and the surety on all payments which have accrued up to the time of affirmance.
Although no opinion was written on the question in the DeBardeleben case, the court there decided it contrary to movant's insistence and the decision has been followed in each subsequent case. We are not persuaded that that decision should be changed.
In Agricola Furnace Co. v. Smith, 239 Ala. 488, 195 So. 743, 744, the plaintiff obtained a judgment against the defendant in a workman's compensation case. The defendant brought the case here for review by certiorari pursuant to § 7571, Code 1923 (§ 297, Tit. 26, Code 1940). Thereafter the defendant moved to dismiss the cause and vacate the writ. The plaintiff objected on the ground that it would be prejudicial to his interest, as he had entered cross-assignments of error which he desired to have considered. The motion to vacate was denied, the court holding that cross-errors may be assigned when a workman's compensation case is here for review on certiorari the same as if it were here on direct appeal. In so holding the court applied the rule that "the dismissal of an appeal by the appellant does not carry the case so far as it is affected by an assignment of cross-errors". The right to assign cross-errors in cases on appeal is given by Code 1940, Tit. 7, § 746, providing as follows:
The holding in Agricola makes it clear that the authorized "appeal by certiorari" in workmen's compensation cases is subject, at least for some purposes, to procedures prescribed for cases coming here by direct appeal. As there said:
"While we recognize that appeal and certiorari are not identical (Ex parte Woodward Iron Co., 211 Ala. 74, 99.So. 97), yet the statute itself by its language indicates a legislative intent that the method of review be considered in the nature of a limited appeal. Section 6091, Code of 1923 [Code 1940, Tit. 7, § 746, supra], was placed in the Code in its present form after the adoption of the Workmen's Compensation Act, Code 1923, § 7534 et seq. [Code 1940, Tit. 26, § 253 et seq.], and cross-assignments of error are permitted thereunder without appellant's consent. Nelson v. Boe, 226 Ala. 582, 148 So. 311.
Code 1940, Tit. 7, § 793, provides as follows:
It seems to us that if § 746, Tit. 7, supra, applies to workmen's compensation cases *287 there is no sound reason why § 793 should not also apply. The statute authorizing a review (§ 297, Tit. 26, subdiv. A, supra) provides that "the decision of the judge hearing the same shall be conclusive and binding between the parties, subject to the right of appeal in this article provided for." [Emphasis supplied.] Subdiv. E of § 297 provides as follows:
The judgment against a defendant in a workman's compensation case, certainly to the extent of the accrued payments, is a judgment for the payment of money which, except for the right of "appeal by certiorari", is then due to be paid the plaintiff, and if not paid within ten days execution must be issued thereon "unless otherwise directed by the court or the judge presiding at the trial of the cause or by the written direction of owners of the judgment or his attorney of record." Code 1940, Tit. 7, § 508; see, also, §§ 510 and 511, Tit. 7, providing when execution may issue before prescribed time. Both §§ 508 and 793, Tit. 7, supra, were in existence when the Workmen's Compensation Act was adopted. From a consideration of that Act, particularly § 297, Tit. 26, and its objectives, and in view of the decision in the Agricola case, we think a holding that § 793, Tit. 7, applies to a judgment in a workman's compensation case is reasonable and in accord with the legislative intent. Accordingly, the giving of a supersedeas bond is essential to a stay of the judgment. This means that the granting of the writ in these cases does not, ipso facto, operate as a stay as does the granting of the common-law writ. Webb & Stagg v. McPherson & Co., 142 Ala. 540, 543-544, 38 So. 1009; John v. State, 1 Ala. 95, 97; Payne v. Martin, 1 Stew. 407, 410; People v. Sturgis, 39 Misc. 448, 80 N.Y.S. 194, 197; 14 C.J.S. Certiorari § 108, p. 245; Ferris, Extraordinary Legal Remedies, Certiorari, § 179, pp. 205, 206. In that respect, the statute has changed the operation of the common-law writ in the review of judgments in workmen's compensation cases. In such cases a stay can be effectuated only by giving the statutory supersedeas bond. If the order granting the writ calls for such bond, the execution of the bond is not a condition to the issuance of the writ. Rather, it is the fixing of the amount of the supersedeas bond. If the petitioner-defendant declines to give the bond, the writ may nevertheless issue; but in that situation there is no stay of the judgment.
We would make it clear that we are not now passing on the question whether this court is without authority, in its discretion, to require, as a condition to the issuance of the writ in compensation cases, the giving by petitioner (appellant) of a bond to indemnify the appellee against loss, in event petitioner declines to give a supersedeas bond. It is to be noted that under the common law it is a proper exercise of discretion to impose, as a condition to the granting of the writ, the giving of a bond for costs and the indemnification of the defendant in certiorari. Webb & Stagg v. McPherson & Co., supra; Payne v. Martin, supra. See Ex parte Pittman Const. Co., 28 Ala.App. 134, 180 So. 725, certiorari denied 236 Ala. 22, 180 So. 728.
We are constrained to hold that the procedure followed since the DeBardeleben case is proper. The application for rehearing and motion for modification of the judgment of affirmance are, therefore, due to be denied.
Application for rehearing and motion to modify denied.
All the Justices concur except STAKELY, J., not sitting. | March 21, 1957 |
81e7ddb8-7198-420f-9522-9d534af527c5 | Sims v. Struthers | 100 So. 2d 23 | N/A | Alabama | Alabama Supreme Court | 100 So. 2d 23 (1957)
Clifford SIMS
v.
James Oscar STRUTHERS and Thomas W. Weaver, Jr., d/b/a Weaver Paper Co.
3 Div. 760.
Supreme Court of Alabama.
April 25, 1957.
Rehearing Denied January 23, 1958.
*24 Rogers, Howard & Redden, Birmingham, for appellant.
Rushton, Stakely & Johnston, Montgomery, for appellee Weaver.
Hill, Hill, Stovall & Carter, Montgomery, for appellee Struthers.
SIMPSON, Justice.
This was an action for personal injuries sustained by the plaintiff when the wagon he was driving was struck by an automobile driven by defendant Struthers, an employee of defendant Weaver. The jury returned a verdict for the defendants, and plaintiff brings this appeal.
The case went to the jury on a simple negligence count. The defendants pleaded the general issue in short by consent and defended on the ground of sudden emergency contending that the accident was caused by the negligence of a third party driving another vehicle rather than negligence of defendant Struthers.
It is argued by appellant that the verdict of the jury was contrary to the great weight of the evidence and that, therefore, the trial court erred in overruling his motion for a new trial. The evidence was in conflict. Appellant did not testify.
*25 Briefly stated, the evidence disclosed that the appellant, a negro convict, was driving a prison wagon along a public highway and a state prison truck approached the wagon from the rear. The automobile driven by appellee Struthers was travelling in the same direction in the rear of the prison truck and wagon. There is a conflict as to which vehicle attempted to pass the wagon first. Appellee Struthers testified that he attempted to pass both the truck and the wagon, but when he was abreast of the truck, the truck suddenly pulled out too attempting to pass the wagon, causing him to cut sharply to his right in order to avoid colliding with the truck. When this occurred, he ran into the wagon on which the appellant was riding thus causing the accident. Appellant, however, relying on his witnesses, contends that the truck had already passed the wagon and that appellee Struthers ran into him from the rear. It is clear that this conflict in the evidence made it a jury question as to who was at fault. There was evidence to support the verdict returned, so we cannot say that the conclusion reached by the jury was manifestly wrong and unjust. Davis v. Radney, 251 Ala. 629, 38 So. 2d 867; Cobb v. Malone, 92 Ala. 630, 9 So. 738; Howell v. Greyhound Corp., 257 Ala. 492, 59 So. 2d 587.
It is next argued that the trial court erred in refusing to propound to the jurors several questions requested by appellant relative to their interest or employment in a liability insurance company. The court did, however, in qualifying the jury, ask them if any of the jurors worked for or owned stock in the company supposed to be holding the coverage on the defendant's automobile. Section 52, Title 30, Code of 1940, confers on the parties the right, under direction of the court, within reasonable bounds, to examine jurors touching matters which might tend to affect their verdict, but it does not empower the party to require the court to put such questions to the jury. Avery Freight Lines, Inc. v. Stewart, 258 Ala. 524, 63 So. 2d 895; Cox v. Roberts, 248 Ala. 372, 27 So. 2d 617.
It, of course, is the right of the plaintiff to ascertain whether insurance is involved in the case when the jurors are being qualified and the duty devolves upon the court to determine that the jury is qualified, but that duty ends after the court has so qualified them. Duke v. Gaines, 224 Ala. 519, 140 So. 600; Avery Freight Lines v. Stewart, supra; Leach v. State, 245 Ala. 539, 18 So. 2d 289; § 6, Title 30, Code of 1940.
It is the rule of our cases that the limit of voir dire examination is left much to the discretion of the trial court, and we do not think that the circumstances here show an abuse of that discretion. Counsel for appellant propounded several questions to the prospective jurors on various subjects, but made no attempt to propound to them questions relative to the insurance which they asked the court to propound after the court had refused to ask the jurors the stated questions. Logan v. State, 251 Ala. 441, 37 So. 2d 753; Leath v. Smith, 240 Ala. 639, 200 So. 623; Louisville & N. R. Co. v. Davis, 236 Ala. 191, 181 So. 695; Rose v. Magro, 220 Ala. 120, 124 So. 296.
The action of the trial court in overruling the defendant's objection to the question asked of one of his witnesses on cross-examination: "You didn't see anything he [Struthers] did reckless when you saw him in the mirror or any other time, did you?" is also argued as reversible error. Under the wide latitude rule of cross-examination, the extent of which rests largely within the discretion of the trial court, we cannot say that the discretion was abused or that prejudicial error intervened by the stated ruling. For supportive cases see Howell v. Greyhound Corp., 257 Ala. 492, 59 So. 2d 587; Bates v. Chilton County, 244 Ala. 297, 13 So. 2d 186; Davis v. Radney, supra.
Appellant next contends that the trial court erred in overruling his objection to a question propounded by appellees' counsel *26 to a highway patrolman testifying for appellant. The question was: "And generally if there are skid marks you note them, don't you?" We likewise view this ruling as without error. Cross-examination as to habits is permissible to test the truth of the testimony of the witness as to his conduct on a specific occasion. Louisville & N. R. Co. v. Bizzell, 131 Ala. 429, 30 So. 777; Pilot Life Ins. Co. of Greensboro, N. C. v. Hawkins, 222 Ala. 218, 131 So. 889; McElroy, The Law of Evidence in Alabama, p. 15, §§ 42 & 43.
Appellant contends that the trial court erred in admitting into evidence a part of an accident report prepared by the highway patrolman who investigated the accident. It appears from the record that the report was prepared by the patrolman from his personal observation and from what the drivers of the vehicles told him. Following is a fair interpretation of the record: James A. Parker, a member of the Alabama Highway Patrol, called as a witness by the plaintiff, testified on direct examination to facts indicating inferentially that he went to the place of the accident in suit within a few minutes after the accident occurred; that he found skid marks of approximately fifty feet in length in the area in which he found the debris of the accidentthe implication of his testimony with respect to such finding being that such skid marks were made by defendant Struthers' automobile.
On Struthers' cross-examination of Patrolman Parker, the latter was asked, "You mentioned tire marks. You did not note them on the Highway Patrol Report did you, skid marks?". Parker answered, "I don't believe I did". Patrolman Parker further testified on cross-examination that a document then and there exhibited to him was a copy (which we assume, in accordance with usual practice was a photostatic copy) of his Highway Patrol Report of the accident in suit; that a diagram of the accident contained in such report, was based both on (a) "physical evidence" (which we understand to mean mechanical traces of the accident observed by Parker after he arrived at the place thereof), and (b) statements made to him by Struthers and the driver of the state prison truck; that if there were skid marks at the place of an accident, he generally made a note of the skid marks in his report of the accident; and that skid marks or tire marks would "throw some light on the way a motor vehicle was travelling."
The diagram, so far as is here material, purported to depict the respective positions of the wagon, the state prison truck and Struthers' automobile at the instant of the collision; the course of Struthers' automobile from the time of its approach to the state prison truck and the wagon to and including the instant of the collision; but it contained no indication of skid marks at the place of the accident.
Struthers offered in evidence that part of the copy of Patrolman Parker's Highway Patrol Report which contained the diagramthe material terms of the offer being "we (i. e., defendant Struthers) introduce in evidence the diagram made by Mr. Parker * * *" "* * * to impeach him." (Tr. p. 55). We interpret "him" as last quoted to mean Patrolman Parker. Plaintiff objected on the grounds that the diagram was hearsay, a conclusion, did not represent any facts that Patrolman Parker found when he arrived at the place of the accident, and "that no proper predicate was laid." The trial court overruled the objection and admitted the diagram. The plaintiff excepted. Plaintiff here complains that the trial court's admission of the diagram was erroneous, and was prejudicial to plaintiff.
We entertain the view that the ruling of the trial court was without error.
First, Patrolman Parker's failure to indicate skid marks on the diagram was materially inconsistent with his testimony that skid marks were in the area in which he found the debris of the accident, which testimony, as noted above, impliedly indicated *27 that such skid marks were made by Struthers' automobile. It should be here noted that Parker had not testified unqualifiedly that he made no note of skid marks on the diagram; he had merely stated that he "didn't believe" he had made such a note. Holland v. State, 25 Ala.App. 147, 142 So. 112, syl. 2-3; Marsh v. State, 16 Ala.App. 597, 80 So. 171, syl. 3, certiorari denied Ex parte Marsh, 203 Ala. 699, 83 So. 927; Schroeder v. State, 17 Ala.App. 246, 84 So. 309, syl. 1; Penney v. McCauley, 3 Ala.App. 497, syl. 5, 57 So. 510, syl. 5; Wefel v. Stillman, 151 Ala. 249, syl. 17, 44 So. 203, syl. 17; Bice v. Steverson, 205 Ala. 576, 88 So. 753, syl. 14; Mobile Light & R. Co. v. Ellis, 209 Ala. 580, 96 So. 773, syl. 11; Gulf, C. & S. F. R. Co. v. Matthews, 100 Tex. 63, 93 S.W. 1068, 1070; 70 C.J. pp. 771, 813-814, 987, 1061 (note 44) 1061 (note 71); 58 Am.Jur. p. 390, § 724; 58 Am.Jur. p. 378, § 698; 82 Am.St.Rep., 42 (note to Lodge v. State, 122 Ala. 97, 26 So. 210).
"The inconsistency may be found expressed, not in words, but in conduct * * *." III Wigmore, Evidence, 3d ed., p. 728, note 9; Worthington v. Given, 119 Ala. 44, 24 So. 739, syl. 9, 43 L.R.A. 382.
"A failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the nonexistence of the fact."III Wigmore, Evidence, 3d ed., p. 733.
Second, irrespective of whether the diagram was proper or not proper to be considered by the jury as tending to show the position of the three vehicles at the instant of the collision, or the course of Struthers' automobile from the time of its approach to the place of the collision until the instant thereof,matters we do not decidethe failure of the diagram to signify skid marks could not have been made perfectly palpable to the jury by any procedure other than that of permitting the jury to see the diagram. The jury could not have seen with their own eyes the absence of any symbols or statements on the diagram with respect to skid marks without looking at the diagram. Therefore, the admission in evidence of the diagram was warranted by the rule that if evidence of a part of a document, utterance, or other event or condition is proper to be considered by the jury, and such part is so interwoven with another part (of such document, utterance, event or condition) that is not proper to be considered by the jury, and that separation of the former part from the latter part is impractical, the whole may be proved: Kennedy v. State, 85 Ala. 326, 5 So. 300, 301 (Murder; McCarron testified for the state; in crossexamining McCarron, accused used McCarron's written testimony given on the preliminary examination of the case before the committing magistrate; held, trial court properly required the whole of such testimony "to go to the jury"; "The paper was entire and not severable, and it was impracticable to admit a part of it to go to the jury. The practice in such cases is to admit the entire paper, and limit its effect as evidence by a proper charge to the jury."); Sims v. State, 253 Ala. 666, 46 So. 2d 564, syl. 4 (implying that the whole of an accused's statement containing a confession of guilt of the crime for which he is being tried is admissible even though he, in such statement, mentioned his commission of another and disconnected crimeif exclusion of his mention of such other crime leaves the remainder of such statement unintelligible.); 2 A.L.R. 1029 (annotation; cites numerous cases holding that in a prosecution for crime the state may prove the whole of accused's statement embodying his confession of guilt of the crime for which he is being tried, even though such statement also contains his admission of his commission of another and separate crime if such admission is inseparably connected with his confession of the crime for which he is being tried.); Smith v. Baggett, 218 Ala. 227, 118 So. 283, 285 (auto accident; opinion indicates that defendant's post-accident statement mentioning his carriage of liability insurance *28 is not inadmissible if it is "so associated with or interwoven" with another part of the statement admitting his being at fault in the accident "as to be inseparable."); Pittman v. Calhoun, 233 Ala. 450, 172 So. 263, 265 (interprets Smith v. Baggett, 218 Ala. 227, 118 So. 283, cited above, as holding that the defendant's statement concerning liability insurance was "an inseparable part of a statement."); Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757, syl. 2 (if defendant's carriage of liability insurance has probative value on issue whether driver of auto was defendant's servant, the policy of insurance cannot be excluded on the ground that it may tend to prejudice the defendant by the jury's learning that defendant has liability insurance.); Hunt v. Ward, 262 Ala. 379, 79 So. 2d 20, syl. 5 (approving: Smith v. Baggett, 218 Ala. 227, 118 So. 283; Pittman v. Calhoun, 233 Ala. 450, 172 So. 263; and Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757, 761, cited above.); Allison v. State, 1 Ala.App. 206, syl. 1, 55 So. 453, syl. 1 (issue, accused's guilt of the crime for which he is being tried; if it reasonably appears that such crime was so intermixed or blended with another crime by accused as to form an indivisible transaction, evidence of accused's guilt of such other crime is admissible.); 22 C.J. 413, notes 29 and 30, 31 C.J.S. Evidence, § 375; VII Wigmore, Evidence, 3d ed., p. 498, § 2100, note 9 (relating to inseparable parts of an accused's confession.); I Wigmore, Evidence, 3d ed., p. 719, § 218 (inseparable crimes).
Therefore, if the diagram was not proper to be considered by the jury as tending to prove the position of the three vehicles at the instant of the collision and the course of Struthers' automobile from the time of its approach to the place of the collision until the instant thereof, the plaintiff's remedy, not invoked by him in the trial of the case, was to have requested the trial court to instruct the jury not to consider the diagram as tending to prove such matters. Wills v. State, 74 Ala. 21 (affidavits admissible only to impeach witness were introduced; "if the defendant apprehended the jury would treat the affidavits as original and general evidence in the case, that was a subject for a charge limiting its operation."). Smith v. Baggett, 218 Ala. 227, 229, 118 So. 283, 285 [7] ("and can only be eradicated or neutralized as bearing upon the defendant's liability by a limitation upon the effect of such evidence."); Ponder v. Cheeves, 104 Ala. 307, syl. 3, 16 So. 145, syl. 2; Smith v. State, 183 Ala. 10, syl. 18, 62 So. 864, syl. 20; Barbour v. State, 262 Ala. 297, 78 So. 2d 328, syl. 5.
The appellant, in his last assignment of error, contends that since the trial court admitted a portion of the accident report into evidence at the offer of the appellee, he, the appellant, was entitled to have the remainder of the report admitted into evidence. The excluded portion of the report is not in the record, therefore, the ruling of the trial court refusing to admit the report is not subject to review. Pearson v. Howe, 11 Ala. 370; National Fire Ins. Co. of Hartford, Conn. v. Kinney, 224 Ala. 586, 141 So. 350; Wesson v. Taylor, 240 Ala. 284, 198 So. 848.
We reach the conclusion that no reversible error is made to appear.
Affirmed.
LIVINGSTON, C. J., GOODWYN and COLEMAN, JJ., concur.
SIMPSON, Justice.
The contention is made by the appellant that we were in error in interpreting the record as meaning that the diagram was offered for the purpose of impeaching appellant's witness, Highway Patrolman Parker. Appellant further contends that the record should be interpreted as meaning that Struthers offered the diagram in evidence for the purpose of impeaching appellant's *29 witness, Daniels; and that the diagram was not admissible for such purpose.
Under the impulsion of the cogent argument in appellant's brief, we have restudied the terms of the offer of the diagram with meticulous care. We still entertain the opinion that the most reasonable interpretation of the record is that the diagram was offered for the purpose of impeaching Highway Patrolman Parker.
However, if the diagram had been offered for the purpose of impeaching Daniels, and if the diagram was not proper to be considered for that purpose, appellant still could not sustain his contention that admitting the diagram was error, because the diagram was correctly admissible for the purpose of impeaching Highway Patrolman Parker, even though not offered for that purpose. This results from the rule that if there is a purpose for which offered evidence is admissible, the trial court's admission in the evidence is not error, even though the evidence was offered for an improper purpose.Houston Biscuit Co. v. Dial, 135 Ala. 168, 185, syl. 6, 33 So. 268, 273; Cook v. Parham, 24 Ala. 21, 34 syl. 3; Goldsmith v. Picard, 27 Ala. 142, 151, syl. 6; Robinson's Adm'r v. Allison, 36 Ala. 525, 531, syl. 2; Hart v. Freeman, 42 Ala. 567, 571; Campbell v. State, 23 Ala. 44, 77.
The remedy is, the party against whom the evidence is admitted is to request the trial court to instruct the jury that such evidence should be considered only for the purpose for which is proper.Cases, supra.
The case of Collins v. Jones, 83 Ala. 365, 3 So. 591, is contrary to the six decisions just cited; but Collins v. Jones ignored five earlier decisions cited above; it relied on cases not in point; it has not been followed in any subsequent case; it was disregarded in the later case of Houston Biscuit Co. v. Dial, 135 Ala. 168, 185, syl. 6, 33 So. 268, cited above; it must be regarded as overborne by the decisions cited above.
It is well to observe that we have lain to one side consideration of whether the diagram was admissible under the Alabama Business Records Act (Code of 1940, Title 7, § 415), and it might also be observed that if the record is susceptible of two interpretations, the court will accept that which is favorable to the appellee.Dutton v. Gibson, 226 Ala. 647, 148 So. 397.
We entertain the view that the application should be overruled.
Opinion extended and application for rehearing overruled.
All the Justices concur except LIVINGSTON, C. J. and STAKELY, J., not sitting. | April 25, 1957 |
f8140b50-e4f3-47be-94c1-7c7518658458 | Parrish v. Davis | 92 So. 2d 897 | N/A | Alabama | Alabama Supreme Court | 92 So. 2d 897 (1957)
Dovie PARRISH et al.
v.
Ida DAVIS.
4 Div. 793.
Supreme Court of Alabama.
February 21, 1957.
*898 J. A. Carnley, Elba, for appellants.
J. C. Fleming, Elba, for appellee.
GOODWYN, Justice.
The appellee brought a statutory ejectment action in the circuit court of Coffee County to recover the following tract of land:
The facts material to an understanding of the questions presented are as follows:
The SE¼ of the SW¼ of Section 15 is split roughly in half by the Pea River. The land involved here is that portion of the forty lying along the east side. The area appears to be entirely swamp and woodland. None of it has been under cultivation.
Plaintiff's evidence tends to show that the disputed area was part of a large tract of land owned by her grandfather, Hosea Holley. For the purpose of showing title in her grandfather, she placed in evidence a deed from one Wiggins to Hosea Holley executed in 1843. Hosea Holley died intestate (the exact time of his death is not shown) and all of the lands which he owned passed to plaintiff's mother as his sole heir. Upon the mother's death intestate (the exact *899 time of her death is not shown), the land descended to her children in equal undivided shares. Mrs. Ida Davis, the plaintiff, is one of the children. For some time after the mother's death the whole tract remained intact and was administered on behalf of all the heirs as the "Holley Estate". In 1923 the bulk of the estate was apportioned among the mother's heirs, but the land now in dispute was not included in the division. Thus, all of the heirs continued as joint owners of the disputed area until 1950 when other heirs (it is not clear whether all) joined in conveying their interest in the property to the plaintiff. The general tenor of the plaintiff's evidence indicates that she and those under whom she claims have maintained possession of the disputed land, and treated it as their own for a period exceeding 50 years. From the testimony of witnesses on both sides, it appears that the common understanding in the community was that the disputed area had always been a part of the Holley lands.
The evidence submitted by defendants tends to show the following: The defendants, M. K. Parrish and Dovie Parrish, are husband and wife. Dovie Parrish and her children are the unquestioned owners of the portion of the SE¼ of the SW¼ of Section 15 which lies across the river from the disputed area. The contention is that they own the entire forty, their title to the disputed area being based on a chain of five duly recorded deeds dating from 1881. The first three deeds in this chain of title definitely purported to convey the entire forty, as contended by defendants, without mention of the Pea River which bisects it. The entire forty, including the disputed area, was included in a deed to J. W. Parrish executed in 1904. In 1913 J. W. Parrish executed a deed to his son, M. K. Parrish, conveying the following described property:
When M. K. Parrish later conveyed the property to his wife, Dovie Parrish, and children in 1932 the deed contained the same description.
Judgment was rendered in favor of plaintiff, from which judgment the defendants prosecute this appeal.
Appellants' insistence here is (1) that error was committed in receiving in evidence the deed from Wiggins to Hosea Holley because it was impossible, due to its disintegrated condition, to read in it any description of the disputed land, and (2) that the judgment was against the weight of the evidence.
The Wiggins deed was sent up with the record for inspection by this court. The purpose of introducing this deed in evidence was to show a conveyance of the disputed land to plaintiff's ancestor in title, her grandfather, who was the grantee in the deed. We agree that parts of it have been completely obliterated and that there is nothing to show that the conveyance actually included the disputed area. However, we do not think the introduction of the deed was error to reverse. Since the deed does not include the disputed area it has no relevancy to the case, but, clearly, the defendants were not prejudiced by its introduction in evidence. Under the facts of this case it was not essential that plaintiff show title in her grandfather, Hosea Holley, in order to recover.
Trial of the case was had before the court without the intervention of a jury. Part of the evidence was heard orally and part of it was in the form of recorded testimony taken at another trial which was introduced in the instant case by stipulation *900 of the parties. In this situation our review is guided by the settled rule that the finding of the trial court, when testimony is taken orally before it, or partly so, has the effect of a jury's verdict and will not be disturbed on appeal unless plainly and palpably wrong. Haden v. Boykin, 259 Ala. 504, 66 So. 2d 708; Gardiner v. Willis, 258 Ala. 647, 64 So. 2d 609; Aiken v. Barnes, 247 Ala. 657, 25 So. 2d 849; Taylor v. Burgett, 207 Ala. 54, 91 So. 786. The question being fairly debatable and neither conclusively proved nor disproved, this court, under our settled rule, will not substitute its own judgment for that of the trier of facts at nisi prius, who is charged with the primary duty and responsibility of determining factual issues. Forest Hill Corporation v. Latter & Blum, 249 Ala. 23, 29, 29 So. 2d 298. We have given careful consideration to the evidence and are convinced that it amply supports the trial court's conclusion.
Plaintiff made out her prima facie case for recovery by introducing the 1950 deed to her from other Holley heirs who were shown to have been in possession. Wetzel v. Toston, 248 Ala. 382, 383, 27 So. 2d 629; Blair v. Blair, 199 Ala. 480, 481, 74 So. 947. The defendants then introduced a chain of five deeds, duly recorded prior to the 1950 deed to plaintiff, to show their title to the disputed land. As already noted, the first three of these deeds definitely purported to convey the disputed tract, while the last two deeds did not include the disputed area in the description of the property conveyed. The effect of defendants' evidence was to show that the record title to the disputed land remained outstanding in J. W. Parrish, not a party to this action. Hence, plaintiff's right to recover depends upon whether she has acquired title by adverse possession.
Code 1940, Tit. 7, § 828, provides that "adverse possession cannot confer or defeat title to land unless the party setting it up shall show that * * * he derives title by descent cast, or devise from a predecessor in the title who was in possession of the land." "Descent cast" under this statute means simply that when one dies in possession of land and possession is continued by his heirs, the possession of the heirs corresponds to the holding of possession under color of title although the ancestor had no color of title. White v. Williams, 260 Ala. 182, 69 So. 2d 847; Jones v. Mitchell, 258 Ala. 651, 64 So. 2d 816; Childs v. Floyd, 194 Ala. 651, 70 So. 121; Childs v. Floyd, 188 Ala. 556, 66 So. 473; Jordan v. Smith, 185 Ala. 591, 64 So. 317; 1 Am.Jur., Adverse Possession, § 195, p. 901; 2 C.J.S., Adverse Possession, § 79 b., p. 623; 2 C.J., Adverse Possession, § 399, p. 198. See Blackstone's Commentaries, Book 3, Chap. 10, pp. 176-178. In Jones v. Mitchell, [258 Ala. 651, 64 So. 2d 820] supra, it was said: "The possession cast by a trespasser to a descendant is no better in him than that of the ancestor, but it may be sufficient to allow a claim of adverse possession for a period of ten years thereafter under the restrictions of that statute." The evidence sufficiently shows, we think, that plaintiff's grandfather, Hosea Holley, at the time of his death was in possession of the disputed land, claiming ownership; that upon his death plaintiff's mother entered into possession claiming ownership as his sole heir until her death, and that upon the mother's death her children, including plaintiff, entered possession claiming ownership as her heirs. Thus the mother and her children both derived title by descent cast which, when coupled with the necessary elements of adverse possession for the prescribed period, would be sufficient under the statute to establish title in them by adverse possession. The question, then, is whether the evidence sufficiently shows their "possession" to have been "adverse" for the statutory period of ten years. Code 1940, Tit. 7, § 20; Rowe v. Bonneau-Jeter Hardware Co., 245 Ala. 326, 332, 16 So. 2d 689, 158 A.L.R. 1266; Van Antwerp v. Van Antwerp, 242 Ala. 92, 101, 102, 5 So. 2d 73.
"`In order for a party to establish a title to land by adverse possession, it must be shown that for a period of ten years *901 he or those under whom he claims held hostile possession under a claim of right; that it was actual, exclusive, open, notorious, and continuous.'" Millican v. Mintz, 255 Ala. 569, 571, 52 So. 2d 207; Alexander City U. W. & S. Co. v. Central of Ga. Railway Co., 182 Ala. 516, 520, 62 So. 745, 747; McCreary v. Jackson Lumber Co., 148 Ala. 247, 251, 41 So. 822.
It would serve no useful purpose to set out in detail the evidence as to each of the elements necessary to ripen title in plaintiff by adverse possession. Suffice it to say that it appears the Holley family, for a period of over fifty years, treated the disputed land as their own, and during that time exercised the usual possessory acts consistent with ownership of land of that nature. They mortgaged it, they sold the timber from it twice, they periodically rode over it and looked after it, they required a neighboring property owner to remove an encroaching fence, and finally other members of the family undertook to give the plaintiff a warranty deed to the disputed land. It also appears clear that the possession of the Holleys was open, notorious and continuous for more than 50 years. And there is ample basis in the evidence for concluding that the Holleys' possession during all this time was exclusive, although the defendant testified to some desultory possessory acts, such as an occasional walk over the disputed land and allowing his hogs to cross the river and pasture there. The undisputed evidence shows that from the time of the death of the plaintiff's grandfather sometime prior to 1891 until parts of the Holley estate were apportioned among the individual heirs in 1923, the disputed area was bounded on three sides by lands of the Holley estate, and that the disputed land was never separated from the adjoining Holley lands by any fence or boundary markings. The testimony of witnesses on both sides indicates that the Holleys have always treated the disputed area as an integral part of their lands, and that it was the common belief in the community that all of the land lying East of the river belonged to the Holley estate.
The defendant M. K. Parrish claims title by virtue of a deed from his father. As already noted, this deed recites that the Pea River forms the East line of the Parrish forty, clearly indicating, it seems to us, that the father had notice of the Holleys' claim to the portion of the forty lying across the river and even acquiesced in it.
Although it is not clear whether all of the Holley heirs joined in the deed to plaintiff, that situation does not bar her from maintaining the instant suit. "A tenant in common is entitled, as against a stranger in possession, to the whole property, and may recover from such stranger the whole in ejectment." Reichert v. Jerome H. Sheip, Inc., 204 Ala. 86, 89, 85 So. 267, 268; Hooper v. Bankhead & Bankhead, 171 Ala. 626, 631, 54 So. 549.
The judgment is affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | February 21, 1957 |
392d63a4-6280-47b0-8201-abbd1696639a | Lee v. State | 93 So. 2d 757 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 757 (1957)
James Seldon LEE
v.
STATE of Alabama.
7 Div. 303.
Supreme Court of Alabama.
March 14, 1957.
*759 Roberts & Orme, Gadsden, for appellant.
John Patterson, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.
LAWSON, Justice.
James Seldon Lee was indicted for the offense of murder in the first degree by a grand jury of Etowah County and upon his trial upon said indictment was convicted of murder in the first degree and his punishment was fixed by the jury at death by electrocution. Judgment and sentence were in accord with the jury's verdict. A motion for new trial filed by counsel for Lee was overruled.
The appeal comes to this court under the provisions of Act No. 249, approved June 24, 1943, General Acts 1943, p. 217, which act provides for an automatic appeal in all cases in which the death sentence is imposed. See 1955 Cum. Pocket Part, Vol. 4, Code 1940, Title 15, § 382(1) et seq.
Lee was represented by counsel of his choice at arraignment and on the trial below. After finding that Lee is an indigent person, without sufficient funds to pay for the services of an attorney to represent him on appeal, the trial court appointed the counsel who represented Lee in the court below to prosecute this appeal and they appear here in his behalf. Act 249, General Acts 1943, supra.
Upon arraignment Lee pleaded not guilty and not guilty by reason of insanity.
The law on insanity as a defense in a criminal case is well recognized. Neither abnormality nor subnormality precludes liability for crime where there exists sufficient mental capacity to entertain the requisite criminal intent. As excuse for the crime, the burden was on the defendant below to clearly prove to the reasonable satisfaction of the jury that he was so afflicted by disease of the brain when the offense was committed as to render him so insane that he did not know right *760 from wrong with respect to the particular offense charged, or by reason of such mental disease he could not resist doing the wrong; the crime must have been the product solely of such diseased mental condition. Smarr v. State, 260 Ala. 30, 68 So. 2d 6; Lakey v. State, 258 Ala. 116, 61 So. 2d 117, and cases cited; Parsons v. State, 81 Ala. 577, 2 So. 854.
The only evidence offered in support of the defendant's plea of not guilty by reason of insanity was the statements made by several witnesses to the effect that in their opinion the defendant was not a normal person. On this issue the evidence for the State tended to show that while the defendant had a high temper and had no formal education and was comparatively ignorant, he was not in any way mentally deranged.
We are clear to the conclusion that the issue of insanity as excuse for the crime was for the determination of the jury. This issue was decided adversely to the defendant and we think the verdict in that respect was well founded.
The defendant testified in his own behalf. He admitted that at about five o'clock on the afternoon of October 22, 1954, he killed James Arthur (Jack) Maddox, Jr., by shooting him with a 410-gauge shotgun while Maddox was sitting in his truck in front of the home in which the defendant and his two brothers resided. The defendant and his brothers were all unmarried. According to the defendant he left his home, situate in rural Etowah County, a short time before the arrival of the Maddox truck, which was driven by Maddox and in which the defendant's two brothers, J. P. and Tracey Lee, were riding. The defendant left the house carrying the shotgun in search of a fox which he said had been disturbing the chickens. As he was returning to the house he witnessed the arrival of the Maddox truck. Maddox operated a store not far distant from the defendant's home where he and his brothers customarily bought their supplies. It was customary for Maddox to deliver the supplies in his truck and for the Lee brothers to ride home as the delivery was made. While his brothers were unloading the supplies, according to the defendant, he approached the truck in which Maddox was sitting. The defendant's gun was cocked. He told Maddox that the latter had ten minutes within which to pay the defendant $10 for work which the defendant had done on posts which Maddox had that day removed from the Lee premises. The defendant stated that Maddox replied that he did not have the money at that time and that as Maddox dropped his right hand from the steering wheel of the truck, the defendant fired the gun one time in the belief that Maddox was reaching for a gun which the defendant said he knew Maddox always carried.
The evidence for the State tends to show that there had been some bad feeling on the part of defendant toward Maddox for several weeks because of defendant's contention that Maddox owed him for work done on the posts. Maddox had understood that he had bought the posts from the defendant's brother, J. P. Lee, and had settled with him for the posts a week or two prior to the date of the shooting. The tendencies of the evidence offered by the State show that Maddox was unarmed and that he was shot by the defendant without provocation.
The foregoing is not a full statement of the evidence as it relates to the circumstances of the shooting, but we think it sufficient for the purpose of this appeal. We are clear to the conclusion that the evidence fully sustains the verdict of murder in the first degree.
Confessions made by the defendant were admitted without error. The predicate as laid by the State was in all respects sufficient to show prima facie that the extra-judicial confessions of the defendant were made voluntarily, there *761 being nothing in the record to indicate that under the circumstances prevailing at the time they were made, when considered with the age, character and situation of appellant, he was deprived of his free choice to admit, to deny or to refuse to answer. Myhand v. State, 259 Ala. 415, 66 So. 2d 544; Arrington v. State, 253 Ala. 178, 43 So. 2d 644; Phillips v. State, 248 Ala. 510, 28 So. 2d 542, and cases cited. The defendant, when examined as a witness, was asked no question tending to elicit from him any statement to the effect that the confessions which he had made to the officers shortly after the killing were not made of his own volition and without coercion of any kind, as the State's evidence tended to show.
The first witness for the State was the wife of the deceased. While she was being questioned as to the last time she saw her husband, the court reporter made the following notation in the record: "Witness sobbing." After that notation was entered, the witness was asked one further question, whereupon without any action on the part of counsel for the defendant, the trial court said: "Just one minute. Ask her if she wants to go outside and compose herself." Counsel for the State directed such a question to the witness and she replied, "I will go on." According to the record at this point the witness was "still crying." Counsel for the defendant at that point made no request of the court but the court of its own motion ordered a five-minute recess. Apparently while the court was in recess counsel for the defendant moved for a mistrial. This motion was not granted. When court was reconvened, the wife of deceased was brought back to the stand for a short interrogation and apparently she had regained her composure. We find no error to reverse in not granting a mistrial. Hanye v. State, 211 Ala. 555, 101 So. 108; Davis v. State, 222 Ala. 285, 131 So. 900. See Ingalls v. Holleman, 244 Ala. 188, 12 So. 2d 751; Alabama Great Southern R. Co. v. McFarlin, 174 Ala. 637, 56 So. 989.
It was not error to permit witnesses to testify that the photographs shown to them truly depicted the scene of the crime at the time of its commission, although such testimony was elicited prior to the time the photographs were admitted in evidence, inasmuch as the photographs were not seen by the jury at that time and were later introduced in evidence after proper preliminary proof. Smarr v. State, 260 Ala. 30, 68 So. 2d 6.
There is no requirement of law that the description of wounds on the body of a deceased person must be given by expert witnesses, hence, the trial court did not err in permitting the coroner to testify as to the appearance and location of the wounds on the deceased prior to the time counsel for the defendant admitted the coroner's qualifications to testify as an expert. Phillips v. State, 248 Ala. 510, 28 So. 2d 542, and cases cited. In view of the admission by counsel for the defendant of the coroner's qualifications, the trial court did not err in permitting the coroner to express his opinion as to the cause of death. Phillips v. State, supra.
During the course of the direct examination of a prosecution witness, J. P. Lee, a brother of the defendant, the following transpired:
"Mr. Roberts. Now we ask for a mistrial.
*762 "The Court. No, I will overrule it.
"Mr. Roberts. We except."
The answer of the witness was not responsive to the question and the trial court acted correctly in admonishing the jury to disregard the answer, but we think the motion for mistrial was properly overruled.
It was not error to admit in evidence the shotgun which the defendant admitted was the one used by him in the slaying. Pilley v. State, 247 Ala. 523, 25 So. 2d 57. Nor was there error in admitting in evidence the empty shell found at the scene of the crime and which was properly identified. Eldridge v. State, 247 Ala. 153, 22 So. 2d 713.
The court did not err in declining to allow a witness for the defendant to testify as to the degree of intelligence possessed by the defendant. Witness was not shown to be qualified to give an opinion upon that question. Green v. State, 168 Ala. 90, 53 So. 286.
The record does not show that any objection was made to the argument of counsel for the State nor is the argument of counsel for the State set out in the record. However, the record does show that after the jury had been considering the case for some time they returned to the court room, where the following occurred:
"Juror: Yes, sir, that answers it.
"The Court: All right."
There is no question but that the argument of the solicitor to the effect that a man sentenced to the penitentiary will at some time become eligible for pardon or parole was improper. But as before indicated, when that argument was made counsel for the defendant interposed no objection and the provisions of the automatic appeal statute, supra, have no application. Jackson v. State, 260 Ala. 641, 71 So. 2d 825; Washington v. State, 259 Ala. 104, 65 So. 2d 704.
The remarks of the solicitor were of the class of improper argument which may be remedied or their evil effect eradicated by instructions of the court. Oliver v. State, 232 Ala. 5, 166 So. 615; Pilley v. State, 247 Ala. 523, 25 So. 2d 57; Wise v. State, 251 Ala. 660, 38 So. 2d 553.
As shown above, the trial court strongly instructed the jury that they should decide the case on the evidence presented to them and should not be concerned with any future action which might be taken by a parole board. Apparently counsel for the defendant was satisfied with the admonition given by the trial court to the jury, for there was no request made for further instructions nor was an effort made to have the case taken from the jury. Under the circumstances which prevail here, we do not feel that we would be justified in reversing the judgment of the trial court because of the improper argument made by the solicitor to which no objection was made.
Refused Charges 3 and 4 each concluded to an acquittal upon an hypothesis that justified that result without a due consideration by the jury of all the evidence. Even if otherwise correct, they were well refused on that ground. Reeder v. State, 210 Ala. 114, 97 So. 73; Coats v. State, 253 Ala. 290, 45 So. 2d 35.
As is our duty, we have carefully examined the entire record to see if there was any error prejudicial to the appellant, even though not called to our attention in brief of counsel. We find no such error.
It is our conclusion that the verdict and judgment of the lower court must be upheld.
Affirmed.
All the Justices concur. | March 14, 1957 |
d17fce94-ccc8-4b29-923d-266c64dba25d | Kessler v. Peck | 98 So. 2d 606 | N/A | Alabama | Alabama Supreme Court | 98 So. 2d 606 (1957)
Phillip W. KESSLER
v.
Antonia K. PECK.
6 Div. 15.
Supreme Court of Alabama.
May 9, 1957.
Rehearing Denied November 21, 1957.
*607 Rogers, Howard & Redden, Birmingham, for appellant.
Albert Boutwell and Wm. H. Ellis, Birmingham, and Geo. M. Winwood III, Spring-field, Ohio, for appellee.
STAKELY, Justice.
On application for rehearing we have concluded that the original opinion should be withdrawn and the present opinion substituted in lieu thereof. While we feel that the opinion should be rewritten, the result under the facts in the case at bar will not be different.
This case comes to this court on an appeal by Phillip W. Kessler (appellant), who was defendant in the court below, from a judgment in favor of Antonia K. Peck (appellee), rendered in the amount of $20,918 for deceit, growing out of a building deal. The case, which was filed February 7, 1951, was tried before the court without the intervention of a jury. After the foregoing judgment was rendered, there was a motion for a new trial made by the appellant, which was overruled and thereafter this appeal followed.
The defendant, Phillip W. Kessler, who was in the construction business and also engaged in his profession as an architect, entered into a written contract with the plaintiff on August 13, 1948, which was comprised of two separate instruments, one of which was for architectural services and the other of which was for the construction of an apartment building in Cincinnati, Ohio. The defendant represented at this time to the plaintiff that he was solvent and able to pay his obligations and was in a sound financial condition. He further suggested to the plaintiff, an elderly lady, that she did not need a lawyer since his lawyer, already retained, could act for both. On this date the initial payment of $13,500 was made to the defendant. The construction of the building began and within the next four or five months additional payments were made by the plaintiff to the defendant, totaling $7,418. While the work was in progress an effort was made to secure a permanent loan on the property and at one of the meetings at the office of the loan company, the defendant was requested to show evidence of payment for materials and labor used in the construction to date. He did not at this time produce such evidence or make any satisfactory explanation for his failure to do so. On all occasions subsequent to the date the original contract was signed, defendant informed plaintiff *608 that he had paid all bills for labor and materials. Following the conference at the loan company office, the defendant was not seen again by the plaintiff or her daughter and the record appears to be silent as to his whereabouts at that time. However, a suit was filed in Hamilton County, Ohio, and in 1950 it was contended by defendant's counsel that the defendant was a nonresident of Ohio and a resident of Alabama.
The plaintiff made an effort to dispose of the property and finally accepted an offer of $10,000, which was the best offer she got. This transaction was completed on December 21, 1949. The $10,000 received was the exact amount that the plaintiff paid for her lot, hence she was still out the sum of $20,918.
During the trial of the instant case the defendant took the stand and was cross examined. The plaintiff had a stroke after her dealings with the appellant, became ill and was "in no shape to testify."
Subsequent to the disappearance of the appellant before completing the building, the appellee filed a suit against the appellant in an Ohio State Court. In this suit he successfully quashed service as a nonresident of Ohio. Thereafter the appellee sued appellant in the Federal Court in Birmingham, Alabama, and in that case Phillip W. Kessler claimed to be a citizen of Ohio and showed that he knew that the Ohio State case had been filed against him. He testified in his own defense in the federal court case and in the instant case made various statements relative to his statements in the federal court case as to his home. The case in the Federal Court in Birmingham was dismissed by the Court on January 12, 1951, on motion of the defendant for failure of proof of diversity of citizenship, which means, in effect, that the court found that appellant was a resident of Ohio.
Phillip W. Kessler testifying in his own behalf, made various admissions relative to letters, etc., received by appellee and in particular that the initial payment of $13,500 was deposited to the credit of the firm of which he was the sole owner. The same admission was made with reference to other payments made to the appellant. He also admitted dictating and even signing the letter addressed, "To Whom it May Concern," to which we shall later refer.
I. It is argued that the court was in error in overruling the demurrer to Count One of the complaint. We see no point in discussing the ruling of the court on the demurrer to Count One since the judgment of the court did not specify on which count the judgment was rendered. The judgment will be referred to the good count if there is evidence to sustain it; furthermore, the judgment will not be reversed because of the trial court's erroneous ruling on the demurrer to the defective count. Trammell v. Robinson, 34 Ala.App. 91, 98, 37 So. 2d 142. It is our belief that Count Three, as amended, states a cause of action and that there is sufficient evidence to permit recovery by the plaintiff on this count.
The grounds of the demurrer for the most part specify and limit their application to Counts One and Two. When Count Three, as amended, was filed, the demurrer, as filed, was simply refiled to the complaint, as amended. It seems to be argued that the demurrer should have been sustained to Count Three, as amended, because the count undertakes to set up three separate and distinct tort actions. We find no apt ground of demurrer raising this question as to Count Three. Campbell v. Jackson, 257 Ala. 618, 60 So. 2d 252.
In addition thereto it is our judgment that Count Three, as amended, does not set up three separate and distinct tort actions. On the contrary, it seeks recovery of payments made under a contract which was fraudulently induced by the defendant. Count Three, as amended, is a count claiming $30,000 as damages in connection with a contract that provided for the construction *609 of a building. It is alleged that the plaintiff has duly performed all of the conditions required by the contract to be performed on her part. It is further alleged that the plaintiff paid to the defendant under said contract the following amounts on the following dates: August 13, 1948, the sum of $13,500; January 17, 1949, the sum of $1,358; on January 17, 1949, the sum of $1,880 and on March 22, 1949, the sum of $4,000. It is further alleged that at or immediately prior to the time said sums were paid by the plaintiff to the defendant, the defendant stated to the plaintiff that he was in sound financial condition, had paid all the laborers and materialmen who had done work or supplied material which went into the construction of the building provided for in the contract. It is further alleged that the plaintiff relied on said representations and paid said sums of money to the defendant in reliance thereon. It is further alleged that such representations were false in that the defendant was not in a solvent financial condition and was actually insolvent at the time said representations were made and that many of the laborers and materialmen had not been paid for their labor and materials which went into the construction of the building being constructed under said contract.
We understand that the Alabama law does not authorize the joining of several independent and distinct torts constituting separate causes of action in one count. But one count may contain several distinct and independent averments each of itself stating a good cause of action, provided it is the same cause of action in all the averments. Sloss-Sheffield Steel & Iron Co. v. Smith, 166 Ala. 437, 52 So. 38; Mazer v. Brown, 259 Ala. 449, 66 So. 2d 561. For example, a single count declaring upon several promissory notes arising out of the same transaction is good. Morrow v. Shuff, 219 Ala. 395, 122 So. 635. Here we have several payments procured by the defendant from the plaintiff "in accordance with a single sustained method pursued in executing one general scheme." It is a single cause of action though it consists of more than a single act. Lehigh Portland Cement Co. v. Donaldson, 231 Ala. 242, 164 So. 97.
There was no reversible error in the ruling of the court as to Count Three as amended.
II. Assignments of error are based on the introduction in evidence of photostatic copies of the checks given by Mrs. Antonia Peck and which have been hereinabove referred to. Photostatic copies constitute secondary evidence and ordinarily are not admissible unless a proper predicate has been laid. Hosey v. Southport Petroleum Co., 244 Ala. 45, 12 So. 2d 93. However, the appellant cannot complain of the admission of these photostatic copies because of his own admission when he took the stand. For example, with reference to the check for $13,500, he admitted that he got the $13,500 personally. It was deposited to the credit of Atlas Construction Company which he owned. With reference to the check for $1,880 he admitted that this was a true picture of his signature and that his wholly owned business, Atlas Construction Company, also got that money. He did not deny receiving the $1,538 check, the subject-matter of various assignments of error and admitted receiving and depositing the $4,000 check, the subject-matter of other assignments of error. He admitted causing the letter, the subject-matter of assignments of error No. 13, to be written (this is the letter written To Whom it May Concern), and with reference to a letter written on the stationery of Phillip W. Kessler, Architect, he stated that he did not sign this letter but it was sent out under his instructions. We cite these matters as evidencing a considerable number of writings introduced in evidence in which no prejudice resulted to the appellant. Supreme Court Rule 45, Code 1940, Tit. 7, Appendix. Further specific reference to these various matters does not appear to be necessary.
*610 III. The plaintiff introduced in evidence claims for liens which were filed in Ohio and it is contended that because of the failure to prove the lien law of Ohio, the instruments could not be received in evidence as liens against the property here involved. The court is of the opinion that it was not necessary to prove under the averments of Court Three, as amended, that the liens were legally valid. In Count Three, as amended, the averment of one alternative is that "many of the laborers or materialmen had not been paid for their labor and materials" and in the alternative that "a large number, namely, viz, nine of said laborers or materialmen filed liens against the property." Accordingly, we consider that the trial court did not commit prejudicial error in the admission of the so-called lien claims.Supreme Court Rule 45.
IV. The cause of action relied on in this case by the plaintiff is for deceit and it is insisted that this cause of action is barred by the statute of limitations of one year. Broadus v. Lindsey, 17 Ala.App. 342, 84 So. 776; § 26, subd. 5, Title 7, Code of 1940. Section 34, Title 7, Code of 1940, provides in substance that when any person is absent from the state during the period in which a suit might have been brought against him, the time of such absence must not be computed as a portion of the time necessary to create the bar of the statute of limitations. However, while it is true that absence from the state and not nonresidence from the state tolls limitations under the statute of limitations, proof of defendant's nonresidence at the time of the accrual of the cause of action is prima facie evidence and raises a rebuttable presumption of defendant's continuous absence. Sims v. Tigrett, 229 Ala. 486, 158 So. 326. Consequently, we do not believe that Phillip W. Kessler has carried the burden of his plea. For example, on cross examination he admitted that he had previously testified in the Federal Court that his home was Cincinnati, Ohio; that he had always considered Cincinnati his home and that at the time of the trial in the Federal Court in Birmingham, namely January 12, 1951, he considered Cincinnati, Ohio, as his home. The court believes that this evidence gave the trial court ample ground on which not to believe the appellant's testimony as to his physical presence within the state.
Besides the actions of the appellant in our judgment amount to an estoppel of his right to plead the Alabama Statute of Limitations of one year. For example, he got the case instituted against him in Ohio thrown out saying in effect, "I am a nonresident of Ohio." Without question that case had been brought within the four years of the Ohio Statute. He then reversed his previous statement and plead in Alabama, when sued in Alabama in the federal court, saying in effect, "I am a citizen of Ohio." And now he pleads the Alabama Statute of Limitations when sued in Alabama in the state court.
The authorities did not approve such tactics. 34 Am.Jur. p. 323 et seq.; 53 C.J.S. Limitations of Actions, § 24, p. 962. While Alabama does not appear to have a case, so far as we can ascertain dealing with the question of estoppel to plead the statute of limitations, there are Alabama cases recognizing the existence of the principle of estoppel because of one's actions in a court. First National Bank v. Burch, 237 Ala. 680, 188 So. 859; Elliott v. Vance, 239 Ala. 180, 194 So. 515.
The result is that not only do we consider that the appellant has failed to prove his presence in Alabama for a time sufficient to create a bar under the statute of limitations where the cause of action arose in another state (Holley v. Coffee, 123 Ala. 406, 26 So. 239), but we also consider that the conduct of appellant has estopped him from pleading the Alabama Statute of Limitations.
Upon a consideration of the entire record, it is our judgment that none of the errors complained of have injuriously affected the *611 substantial rights of the appellant. The cause is, therefore, due to be affirmed and the application for rehearing is overruled.
Affirmed.
LIVINGSTON, C. J., and LAWSON, GOODWYN, and MERRILL, JJ., concur. | May 9, 1957 |
7242ceb6-c366-4268-bd39-31a80fb01a9c | Board of Zoning Adjustment v. Boykin | 92 So. 2d 906 | N/A | Alabama | Alabama Supreme Court | 92 So. 2d 906 (1957)
BOARD OF ZONING ADJUSTMENT FOR THE CITY OF LANETT
v.
Eugene C. BOYKIN, Jr.
5 Div. 650.
Supreme Court of Alabama.
February 21, 1957.
*907 Morrow & Nix and Chas. A. Nix, Lanett, for appellant.
Walker & Walker, Opelika, and R. C. Wallace, La Fayette, for appellee.
SIMPSON, Justice.
Boykin appealed to the circuit court from a decision rendered by the Board of Zoning Adjustment wherein the Board sustained a decision of the Building Inspector of the City of Lanett in refusing to grant to Boykin a building permit. The circuit court, upon a trial de novo as authorized by § 783, Title 37, Code of 1940, reversed the decision of the Board of Adjustment and entered a judgment granting a permit to Boykin. From that judgment, the Board of Adjustment brings this appeal.
The City of Lanett adopted in 1946, a zoning ordinance. The ordinance provided that any structure or use existing at the *908 time of the enactment of the ordinance might continue even though such structure or use was not in conformity with the ordinance. (Art. 10, § 102.1.) The ordinance further provided that a nonconforming use or structure could not be extended unless the extension conformed with the regulations of the ordinance for the district in which it was located. (Art. 10, § 102.2.) Whenever a nonconforming use of any structure had been discontinued for one year, by the provisions of the ordinance, it could not be re-established or changed to any use not in conformity with the ordinance. (Art. 10, § 102.4.) The ordinance also contained a provision that no structure or part thereof could be erected or altered unless in conformity with the regulations for the district in which it is located. (Art. 10, § 101.)
On the effective date of the zoning ordinance and continuously thereafter, appellee has held title to a dwelling located in an area designated as "Residence `A' District". The residences within such district were restricted by the zoning ordinance to that of single family dwellings. (Art. 2, § 21.1.)
In 1949, the appellee applied to one Allen, building inspector for Lanett at that time, for a building permit to refloor 50% of the floor space, re-roof 50% of the dwelling, replace and repair windows, install two additional bathrooms, install separate heating, lighting and water systems, and make three separate entrances. Allen, the building inspector, informed the appellee that it was not necessary to issue him a building permit and gave him oral permission to proceed with the repairs, which appellee endeavored from time to time to do. In July 1955, the appellee was ordered to stop work on the premises by the City of Lanett.
Appellant Board contends that the trial court was in error in finding (1) that the appellee's dwelling on the effective date of the ordinance had an established use as a multi-family dwelling, and in finding (2) that there had been no discontinuance for more than one year of the nonconforming use (if in fact one did ever exist). The appellant also urges that if the nonconforming use were established and had not been abandoned, the repairs and alterations contemplated by appellee constitute such an extension of the nonconforming use as to be prohibited by the ordinance (§§ 101, 102.2) hence a lawful permit could not be granted appellee, and the action of the trial court in holding the appellant estopped to insist on the invalidity of the oral permit granted appellee in 1949 is error.
The testimony was taken orally before the trial judge and his findings on the facts have the effect of a verdict of a jury. The judgment, therefore, will not be disturbed unless plainly erroneous or manifestly wrong. State ex rel. Turner v. Baumhauer, 1937, 234 Ala. 286, 174 So. 514; Nelson v. Donaldson, 1951, 255 Ala. 76, 50 So. 2d 244.
A "use" of a dwelling is defined in the zoning ordinance as "the purpose for which the building is designed, arranged or intended, or for which it is * * * occupied or maintained." (Section 121.13.) The evidence shows that the appellee rented his residence from January 1939August 1940, to Mrs. John Cook. She testified that she lived in the dwelling and rented space therein to two additional families. The Mitchell family lived in the appellee's dwelling from August 1940 until October 1949. Mrs. Mitchell testified that during her family's tenancy they sublet to two other families. A neighbor also testified that three or four families lived in the Boykin residence during the tenancy of the Mitchell family. We conclude that the trial court committed no error in holding that the residence of appellee was, upon the effective date of the ordinance, 1946, being used as a multi-family dwelling.
On the question of the discontinuance of the aforementioned nonconforming use, the evidence shows that the dwelling has been vacant from October 1949, and at frequent intervals during this period appellee *909 has been repairing said dwelling as weather and financial circumstance would permit. Appellee has expended approximately $4,500 on such repairs. The evidence also shows, though not without conflict, that at no time since 1949, when appellee began the repairs, has a twelve months period elapsed when appellee did not make repairs.
The courts have generally held that the word discontinuance, as used in a zoning ordinance, is equivalent to abandonment. A discontinuance results from the concurrence of an intent to abandon and some overt act or failure to act which carries the implication of abandonment. It means something more than a temporary non-occupancy of a dwelling for the purpose of making repairs. See City of Miami Beach v. State ex rel. Parkway Co., Inc., 1937, 128 Fla. 118, 174 So. 443; Pioneer Insulation & Modernizing Corp. v. City of Lynn, 1954, 331 Mass. 560, 120 N.E.2d 913; People ex rel. Delgado v. Morris, 1948, 334 Ill.App. 557, 79 N.E.2d 839; 62 C.J.S., Municipal Corporations, § 226(19) f. The remodelling or repairing of a dwelling shows an intention to continue rather than to abandon the nonconforming use. Brown v. Gerhardt, 1955, 5 Ill. 2d 106, 125 N.E.2d 53; See also 18 A.L.R.2d 751. Hence, the trial court's conclusion on the evidence that the nonconforming use had not been discontinued cannot be said to be manifestly wrong or plainly erroneous.
As heretofore adverted to, § 101 of the Zoning Ordinance provides that no structure shall be altered unless in conformity with the regulations for the district in which it is located; § 102.2 provides that no nonconforming use shall be extended unless in conformity with said regulations. Appellant contends that the action of the building inspector in granting the oral permit violated the express provisions of these sections in that the contemplated repairs constituted structural alteration or an extension of a nonconforming use.
It has been held that the proper test in determining what is a structural alteration to a nonconforming use is whether an existing nonconforming use is extended and the life of the existing nonconforming building prolonged and not whether there is an increase or decrease in the number of square feet utilized by the nonconforming use. Cole v. City of Battle Creek, 1941, 298 Mich. 98, 298 N.W. 466. In Selligman v. Von Allmen Bros., Inc., 1944, 297 Ky. 121, 179 S.W.2d 207 cited by this court in Moore v. Pettus, 1954, 260 Ala. 616, 71 So. 2d 814, 823, the Kentucky Court construed the term "structural alteration" as meaning any structural alteration which will indefinitely prolong the life of the nonconforming building.
This Court stated, in Moore v. Pettus, supra:
See also Goodrich v. Selligman, 298 Ky. 863, 183 S.W.2d 625; Dienelt v. Monterey County, 1952, 113 Cal. App. 2d 128, 247 P.2d 925.
We conclude that reflooring 50% of the floor space, reroofing 50% of the dwelling, making separate entrances and installing separate water, heating and lighting systems, is such an alteration to the dwelling as to prolong indefinitely the life of the nonconforming use; hence the building permit authorizing such repairs was illegally given by the building inspector.
*910 Where a building permit is issued in violation of the zoning ordinance, it is invalid, and the permittee acquires no vested rights thereunder and this although the permittee has incurred expense in connection therewith and in reliance thereon. Moore v. Pettus, supra. And one to whom a building permit has been illegally issued cannot successfully invoke the doctrine of estoppel so as to preclude the municipality from revoking the permit, notwithstanding the fact that the permittee may have acted in good faith and may have expended money or incurred obligation in reliance upon the permit. Marcus v. Village of Mamaroneck, 1940, 283 N.Y. 325, 28 N.E.2d 856; Hyams v. Amchir, Sup.1945, 57 N.Y.S.2d 77; Vogt v. Borough of Port Vue, 1952, 170 Pa.Super. 526, 85 A.2d 688; See also Goodrich v. Selligman, 298 Ky. 863, 183 S.W.2d 625; Alexander Co. v. City of Owatonna, 1946, 222 Minn. 312, 24 N.W.2d 244; Adler v. Department of Parks & Public Property, 1952, 20 N.J.Super. 240, 89 A.2d 704; Giordano v. Mayor and Council of Borough of Dumont, 1948, 137 N.J.L. 740, 61 A.2d 245, 6 A.L.R.2d 956; Yokley, Zoning Law & Practice, §§ 101, 109; See Annotation 6 A. L.R.2d 960-982.
But § 141, Article 14 of the Lanett Zoning Ordinance provides that the powers of the Board of Adjustment shall be governed by § 781, Title 37, Code of 1940, and among the powers conferred by § 781, Title 37, on the Board of Adjustment is the following: "To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done."
In Nelson v. Donaldson, 1951, 255 Ala. 76, 50 So. 2d 244, this Court interpreted §§ 781, 783, Title 37, Code of 1940, to mean that upon appeal to the circuit court from a decision of the Board of Adjustment, the scope of inquiry in the circuit court is the same as that before the Board of Adjustment and the authority of the circuit court on appeal to permit a variance from the terms of the ordinance is the same as that conferred on the Board of Adjustment by § 781, Title 37.
The circuit court, in the case at bar, granted appellee a building permit after it found that the proposed repairs would not be contrary to the public interest and that a literal enforcement of the provisions of the ordinance would result in unnecessary hardship to the appellee.
Section 781, Title 37, Code of 1940, empowers the Board of Adjustment and thus the circuit court, to determine whether in a particular situation the zoning ordinance should be literally applied, and to that end the Board, or if the case has been appealed to the circuit court, the court may make proper adjustment to prevent unnecessary hardship even to the extent of authorizing nonconforming uses. Such variances, however, should be permitted only under peculiar and exceptional circumstances. Nelson v. Donaldson, supra.
Appellee applied for and received a building permit from the official who was authorized to issue permits. In reliance thereon and in good faith he expended approximately $4,500 in repairing the dwelling. Some five to six years after the granting of the permit, when the contemplated repairs were almost completed, he was ordered by the city to desist. Evidence was adduced on behalf of appellee that the repairs improved the appearance of the dwelling and increased the value of the property, that the dwelling was very large and could not be used, as a practical matter, as a single family dwelling, and that there were other multi-family dwellings in the neighborhood. To deny at this time and upon the facts herein presented, a permit, would result, we conclude, in unnecessary hardship to the appellee. His *911 financial loss, if the permit were now denied, is not of a kind common to all the property owners in the same use district. See Moore v. Pettus, supra; Nelson v. Donaldson, supra.
A consideration of the circumstances of this case leads us to conclude that the authorizing of a variance from the terms of the ordinance will not be contrary to the public interest, requiring an affirmance of the judgment below.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | February 21, 1957 |
845c164f-9b0b-4010-8f09-beb71d945979 | Myers v. Redmill | 96 So. 2d 450 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 450 (1957)
Troy Marvin MYERS et al.
v.
Stephen Allen REDMILL, pro aml. Edward A. Redmill.
6 Div. 141.
Supreme Court of Alabama.
June 20, 1957.
*451 T. K. Selman and T. L. Beaird, Jasper, for appellant.
Bankhead & Petree, Jasper, for appellee.
MERRILL, Justice.
Appeal from an interlocutory decree overruling a demurrer to complainant's bill to set aside an alleged fraudulent conveyance.
The bill alleges that complainant, Stephen Allen Redmill, a two year old minor suing by next friend, was injured on December 8, 1956, when the car in which he was riding was struck by an automobile driven by respondent; that two days later, respondent executed and recorded a deed by which all of his property was conveyed to his wife; that on December 19, 1956, complainant, suing by next friend, filed a suit at law against respondent seeking to recover damages for the injuries received in the collision; that the complaint contained counts in simple negligence and wantonness; and that the conveyance was voluntary and made for the purpose of hindering, delaying and defrauding the complainant in the collection of his debt, claim or demand against respondent. The complainant prayed for a decree setting aside the conveyance as fraudulent as to him.
The demurrer raised the points that the bill would not lie because complainant's claim had not been reduced to judgment before the bill was filed, and because the claim sounded in damages merely. That is the question argued here on appeal.
This is the first time this question has been presented squarely to this court. But the principle contended for by appellant is based upon dicta in five different cases.
The first case is that of Dowling v. Garner, 195 Ala. 493, 70 So. 150, 152, where the complainant Dowling was seeking to recover damages for the wrongful death of his intestate in a court of equity, and as an incident thereto, sought to set aside a *452 conveyance as fraudulent. This court properly held that suits under the homicide statute should be brought at law and not in equity, and that should have disposed of the matter, but the court further stated in the last paragraph of the opinion, "* * * and no judgment having been recovered, we are of the opinion that in such a case the complainant is not such a creditor as to come within the meaning and influence of section 3739 of the Code [Tit. 7, § 897, Code 1940] * * *."
Tit. 20, § 7, Code 1940, reads:
That part of the last paragraph of the Dowling case quoted, supra, was described as "a dictum" and "unsound" by Justice Mayfield in Galloway v. Shaddix, 197 Ala. 273, 72 So. 617, but a majority of the court thought "that it was unnecessary to explain or qualify" the Dowling case in order to decide the Shaddix case. The majority were correct as to the reason bcause the complainant in the Shaddix case had recovered a judgment against the respondent before filing the bill in equity to set aside the alleged fraudulent conveyances.
We have considered this question carefully, both individually and in consultation, and we are convinced that the opinion written by Justice Mayfield, and concurred in by Justice Thomas, correctly states the law, and that it is applicable whether or not judgments have been recovered before the bill to set aside the alleged fraudulent conveyance is filed, and irrespective of whether or not the damages sought are compensatory or punitive.
We see no reason for recopying the clear and able opinion of Justice Mayfield in the Shaddix case in this opinion and we feel that our references to it are adequate and show our concurrence in the principles of law stated by him as applicable to the facts in the instant case.
The applicable sections of the Code of 1940, Tit. 20, § 7, and Tit. 7, § 897, quoted, supra, are declaratory of generally recognized equitable principles. Fraud is the basic fact that gives jurisdiction to the equity court. Johnson Dry Goods Co. v. Drake, 219 Ala. 140, 121 So. 402. It appears to us that a fraudulent conveyance as to a plaintiff with a demand sounding in punitive damages is infected with just as much fraud as one against a plaintiff with a demand in compensatory damages. We have expressly held that a complaint in simple negligence alleging damages to an automobile is not a claim "sounding in damages merely." Blackmon v. Gilmer, 221 Ala. 554, 130 So. 192(1), 193. There is no question in any of our cases that such a claim makes one a "creditor" protected by the statute.
But it is urged that the statute gives no protection, prior to a judgment, to a claimant who received personal injuries, or to one who is injured as the result of a wanton act, or whose intestate was killed under such circumstances as to authorize a recovery under the homicide act. There is *453 an old maxim that "what is just and right is the law of laws." Surely, if it is permitted to one whose property has been damaged to set aside a fraudulent conveyance, that same privilege should extend to one who has suffered personal injuries or death as the result of a deliberate or wanton act.
It, therefore, follows that we consider the quoted expressions in the following cases as dicta, which will not be followed in the future:
In Cortner v. Anderson, Clayton & Co., 225 Ala. 575, 144 So. 443(5, 6), 445:
In Hays v. McCarty, 239 Ala. 400, 195 So. 241(7, 10), 244:
In Dobbs Truss Co. v. Sutherland, 256 Ala. 581, 56 So. 2d 638(5, 6), 641:
In Barrett v. Fondren, 262 Ala. 537, 80 So.2d 243(1), 246:
The trial court properly overruled the demurrer to the bill of complaint.
Affirmed.
All the Justices concur. | June 20, 1957 |
dfe4b66d-6ad2-40ac-8f3e-6ec2d697eee4 | Myers v. Mobile Press-Register | 97 So. 2d 819 | N/A | Alabama | Alabama Supreme Court | 97 So. 2d 819 (1957)
George F. MYERS
v.
The MOBILE PRESS-REGISTER, Inc.
1 Div. 648.
Supreme Court of Alabama.
October 31, 1957.
J. Connor Owens, Jr., Bay Minette, for appellant.
*820 Hand, Arendall & Bedsole, Mobile, for appellee.
COLEMAN, Justice.
Appellant sued appellee for libel. The complaint contained two counts. Demurrer was sustained to each count. Appellant suffered a nonsuit and appealed. Errors assigned are the rulings sustaining demurrer to each count.
The alleged libel appeared as an editorial in appellee's newspaper on the 14th of October, 1953, as follows:
It was further averred in the complaint that on October 13th, 1953, prior to the time of the alleged libelous publication, appellee published "a front page story in bold type identifying the plaintiff (appellant) by name as a `tavern operator', who met with the group so referred to in said editorial quoted above."
In McGraw v. Thomason, 265 Ala. 635, 639, 93 So. 2d 741, 744, the following was said:
See, also:
When the language used is not actionable per se, it is incumbent upon the plaintiff to allege special damages. Harrison v. Burger, 212 Ala. 670, 103 So. 842. Appellant alleges no special damage in either count in the instant case; therefore, the publication complained of must be libel per se or the complaint states no cause of action. Trimble v. Anderson, 79 Ala. 514. The appellant in his brief makes the following concession:
*822 Thus, we are presented with the question: Are the words so written libel per se? We answer in the negative.
Appellant argues that the word "saloon keeper" as used in the publication referred to appellant and that the publication is therefore libelous per se because of § 44, Title 29, Code 1940, which provides in part:
This court has stated one definition of "saloon" as follows:
Title 29 does not make unlawful the operation of all places where intoxicating liquors are sold, but does make unlawful the operation of such places in a prohibited manner. In ordinary usage, to say of the plaintiff that he is a saloon keeper is to say that he is the keeper of a place where intoxicating liquors are sold, but unless more is said, such a statement does not on its face say that plaintiff is keeping such a place in an unlawful manner, or that he is otherwise violating the law. We have not been cited to or found any case where to call a person a "saloon keeper" has been held libelous per se. It does not follow that because a person has been falsely called a "saloon keeper" that it is presumed as a matter of law that the reputation of that person has been damaged. Where the publication is libelous per se, damage to reputation is presumed.
In arguing that the publication is libelous per se, appellant points out specifically the following terms used in the publication: "Conspirator," "unholy combination," "Iron Curtain," "rapacious rule," and "dictatorship." In support of this argument, appellant cites Cerveny v. Chicago Daily News Co., 139 Ill. 345, 28 N.E. 692, 13 L.R.A. 864, where on demurrer it was held libelous to falsely publish of a person that he is an "anarchist," since one who advocates anarchy, which is commonly understood as subversive of all government, is liable thereby to be brought into hatred or contempt. The editorial in the instant case certainly does not charge that appellant is opposed to all government.
Appellant cites also Houston Printing Company v. Hunter, Tex.Civ.App.1937, 105 S.W.2d 312, 313, where on appeal it was held that the general demurrer to the petition or complaint, was properly overruled. The publication there complained of stated that plaintiff "`* * * proposes a dictatorship, * * * would not approve the existing form of government, but would remake it after his own pattern. * * *'" and "`* * * is also a visionary and a dreamer who would wreck the very form of government prescribed by the constitution'." Plaintiff further charged that the *823 language used was "* * * `employed * * * in the sense and meaning of one opposed to a Republican form of government, and one who would appropriate unto himself arbitrary, unconstitutional and unlawful and dictatorial powers in violation of the Constitution of the United States of America. * * * That the defendant herein in the use, sense and meaning of the said malicious libels imputed to this plaintiff corrupt, evil, unlawful and reprehensible motives and purposes in seeking to be elected Governor of the State of Texas.'"
In the Hunter case, supra, the opinion does not state that the publication there set out was libelous per se. In pertinent part, the opinion said:
We will observe that the rule with respect to the office of innuendo has been stated differently in Alabama. This court has said:
and also:
See, also, 13 Ala.Dig., Libel & Slander.
In the case at bar, plaintiff charges by innuendo in the second count that the publication shows an intention on part of defendant to create the belief that plaintiff was exerting "corrupting influence upon the City Commission of Mobile" and that plaintiff was a man "who was part of a secret or unlawful combination organized for an unlawful purpose." (Emphasis supplied.) The published words do not support the plaintiff's deduction.
A fair reading of the editorial leads us to conclude that appellant has been charged thereby with planning, in concert with others, to petition or influence the City Commission of Mobile to "unionize" policemen, firemen, and other city employees. The conduct so imputed to plaintiff certainly does not constitute an indictable offense, and we are unable to conclude that the charge of such conduct tends to bring the plaintiff, "into public hatred, contempt, or ridicule, or charges an act odious and disgraceful in society."
Plaintiff and his alleged associates had the right to petition the city governing body and thereby attempt to influence it, and the charge that they met in secret does not alter the nature of the conduct charged. This court has held more distasteful language not to be actionable per se. See Trimble v. Anderson, supra, where it was *824 held not libelous per se to publish of the plaintiff that he had obtained certain notes from one whose mental condition incapacitated him for business dealings, and without paying any consideration for the notes.
In Wabash R. Co. v. Young, 162 Ind. 102, 106, 107, 69 N.E. 1003, 1005, 4 L.R.A.,N.S., 1091, the defendant published of the plaintiff in a letter the following statement:
The Indiana Court said:
In Chicago, R. I. & P. Ry. Co. v. Medley, 55 Okl. 145, 155 P. 211, 212, L.R.A.1916D, 587, in an action of libel, the publication complained of was a letter stating in pertinent part as follows:
With reference to this letter, the Oklahoma Court said:
In support of its holding, the Oklahoma Court cited, among other authorities, two Alabama cases.
One of these cases, Tennessee Coal, Iron & Ry. Co. v. Kelly, 163 Ala. 348, 351, 50 So. 1008, 1009, involved certain counts for libel based on letters written by agents of defendant, acting within the scope of their authority, charging that certain of defendant's employees were union laborers and that they had:
The plaintiff was named as one of the union men causing the disturbance. This court said:
In the second Alabama case cited by the Oklahoma Court, the publication of a notice that a certain contractor had been placed on the "unfair list" of a carpenters' union, together with a statement that the publication of such notice would be continued until he decided to set himself square with organized labor, was held not to be libelous per se. Labor Review Publishing Company v. Galliher, 153 Ala. 364, 45 So. 188.
In the instant case, while some of the words used are harsh and not calculated to endear the newspaper to the subjects of the editorial, the publication complained of is not libelous per se.
The demurrer was properly sustained.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | October 31, 1957 |
8313d38e-9f86-4730-980b-b3df44706e74 | Berry v. Berry | 95 So. 2d 798 | N/A | Alabama | Alabama Supreme Court | 95 So. 2d 798 (1957)
Carrie BERRY
v.
Louis BERRY et al.
4 Div. 899.
Supreme Court of Alabama.
May 9, 1957.
Rehearing Denied June 20, 1957.
C. L. Rowe, Elba, for appellant.
John C. Walters, Troy, for appellees.
LAWSON, Justice.
The question presented is whether the equity court of a county in which is situated some of the land sought to be sold for division of proceeds among joint owners may validly order the sale of a separate and distinct tract of land owned by the same joint owners which is located in another county.
The power of a court of equity in this state to sell jointly owned lands for division of proceeds among the joint owners is statutory. Hall v. Hall, 250 Ala. 702, 35 So. 2d 681; Sandlin v. Anders, 210 Ala. 396, 98 So. 299; Donnor v. Quartermas, 90 Ala. 164, 8 So. 715; Lyon v. Powell, 78 Ala. 351. Section 186, Title 47, Code 1940, provides: "The circuit court shall have original jurisdiction to divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in common; whether the defendant denies the title of complainant or sets up adverse possession or not; and the court in exercising its jurisdiction shall proceed according to its own practices in equity *799 cases." The provisions just quoted are in all material respects the same as the provisions of Act No. 123, approved August 25, 1909, General and Local Acts, Special Session, 1909, p. 124. For a discussion of the history of the legislation leading up to the passage of the 1909 Act, supra, and the changes brought about by that act, see Sandlin v. Anders, supra. It is by virtue of the statute, the provisions of which we have quoted above, that an equity court now has original jurisdiction to sell lands for division. Drake v. Drake, 262 Ala. 609, 80 So. 2d 268. But as indicated above, an equity court has no inherent jurisdiction to order the sale of lands for division. Hoffman v. Jordan, 263 Ala. 23, 81 So. 2d 546.
Neither § 186, Title 47, supra, nor any other statute in this state makes express provision for an equity court of one county to order the sale for division of lands located in another county whether the lands in the two counties are contiguous or constitute separate tracts. However, there is no statute saying that an equity court may not do so.
But we have said "that the power of a court of equity to sell for division is tied in with section 210, Title 47, Code * * *" Hall v. Hall, supra [250 Ala. 702, 35 So. 2d 683]. Section 210, Title 47, Code 1940, reads:
The words which we have italicized above were added to the provisions codified as § 5222, Code 1907, by an act approved September 29, 1923, General Acts 1923, p. 659. The 1923 Act, supra, followed our case of Pollard v. Jackson, 204 Ala. 31, 85 So. 431, decided in 1920, wherein we held that the provisions of § 5222, Code 1907, did not authorize the probate court of a county in which a part of the land was located to direct the sale of a separate tract of land situate in another county.
In the case of Clark v. Smith, 191 Ala. 166, 67 So. 1000, decided in 1915, this court held that the chancery court of Jefferson County was without jurisdiction to entertain a bill for the sale of lands all of which were located in Bibb County. In that case it was pointed out that § 3093 of the Code of 1907, the provisions of which are now codified as § 294 of Title 7, Code 1940, which provisions relate to the county in which a bill in equity must be filed, had no application, saying in part: "* * * the particular jurisdiction under inquiry is governed by the statutory system provided for the sale of lands for division among joint owners or tenants in common."
It is apparent from a reading of the opinion in the case of Clark v. Smith, supra, that the "statutory system" to which reference was there made was that which resulted from a consideration of the statutory *800 provisions which relate not only to the equity court but to the probate court. The opinion discloses that the court entertained the view that the chancery court of Jefferson County could have ordered the sale of lands situated in Bibb County if the Bibb County lands had been adjacent or contiguous to lands situated in Jefferson County, the sale of which was also sought. This conclusion could only have been based on the provisions of § 5222, Code 1907, which authorized the probate court of one county to order the sale for division of proceeds among tenants in common of lands "lying partly in different counties," but not where the lands in the two counties constituted separate tracts.
We are of the opinion that the reasoning in Hall v. Hall, supra, and Clark v. Smith, supra, is applicable to this case and that the provisions of § 210, Title 47, Code 1940, when considered in connection with the statute which confers "original jurisdiction" on equity courts in this state (§ 186, Title 47, supra) requires an affirmative answer to the question which was stated in the opening paragraph of this opinion.
In view of the foregoing, we hold that the circuit court of Coffee County, in equity, acquired jurisdiction to order the sale of the lands situate in Dale County prior to the filing of the appellees' bill in that county. Since the circuit court of Coffee County, in equity, had acquired jurisdiction prior to the time appellees filed their bill in the circuit court of Dale County, in equity, we are of the opinion that the plea in abatement filed in the circuit court of Dale County, in equity, by the appellant, Mrs. Carrie Berry, to the bill filed in that court by the appellees was sufficient and that the trial court erred in holding it insufficient. See Dorrough v. McKee, 264 Ala. 663, 89 So. 2d 77. Such action of the trial court is properly assigned as error on this appeal from a final decree ordering the sale of the Dale County lands for division. Dorrough v. McKee, supra. It follows that the decree of the circuit court of Dale County, in equity, is due to be reversed and the cause remanded for further proceedings consistent with this opinion. It is so ordered.
Reversed and remanded.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | May 9, 1957 |
425b08e8-ab4a-467f-bf1a-290a6f422672 | Dunn v. Fletcher | 96 So. 2d 257 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 257 (1957)
Charles L. DUNN
v.
Richard M. FLETCHER et al.
6 Div. 835.
Supreme Court of Alabama.
June 20, 1957.
Ingram Beasley, Birmingham, for appellant.
Robt. S. Glasgow, Jr., Adamsville, for appellees.
COLEMAN, Justice.
Appellant and appellees are next door neighbors in Pratt City, Alabama, where they have lived side by side since 1935.
On December 22, 1953, appellant filed his bill of complaint alleging that he resides *258 at 309, and that appellees reside at 311, both on Third Street. The lot of each party fronts on Avenue U (Third Street?) about 37 feet and runs back from the street eastwardly about 181 feet to an alley. The lot of appellant lies on the north of appellees' lot on the south. The south line of appellant's lot, which is the north line of appellees' lot, is the line in dispute.
The bill of complaint further alleges that appellees, in 1950, erected, on the east or rear portion of appellees' lot, a one-story concrete block dwelling, and that part of said building extends over approximately two feet onto appellant's lot, and that appellees have refused to remove the building. The bill prays for a mandatory injunction requiring appellees to remove the building off appellant's property and that the court will establish the boundary line, and for general relief.
Appellees' answer denies the encroachment and alleges adverse possession, and also that appellant recognized the boundary as now existing and pointed out the same to appellees before the erection of the concrete block building by appellees.
The evidence was taken ore tenus before the trial judge. The record shows that the trial judge stated the contention of the parties before testimony was taken as follows:
"Mr. Glasgow: Yes, sir.
"Mr. Glasgow: Yes, sir.
"The Court: Yes, sir."
The evidence is in direct and irreconcilable conflict.
Appellees' evidence tended to show that in 1935 the disputed boundary line was marked by hedges and fences. Appellant's evidence contradicts this. Conflicts also appear in the evidence as to the existence and location of a driveway between the houses of the parties.
Appellee, Richard M. Fletcher, and one other witness testified that prior to commencing the erection of appellees' concrete block building which was completed in July 1949, appellee, Richard M. Fletcher, and the witness, Baker, who built the concrete block building, had a conference with the appellant on the ground where the building was to be erected; that on this occasion the appellant pointed out stakes at each end of the disputed line. We quote from the testimony of the carpenter, Baker:
We quote also from the testimony of Richard M. Fletcher:
Appellee, Richard M. Fletcher, further testified that appellant assisted on this occasion in the measuring as follows:
Appellant flatly denied that he had ever shown Fletcher or Baker any stakes, or that he had assisted in measuring the disputed line.
Appellant, when asked whether he had done anything to stop the erection of the concrete block house, testified as follows:
Appellant testified that about 1939 he set out a hedge in the center of the old driveway, and about that time built a low concrete wall on the front or west line of his lot. The wall appears to be about seven inches high. The south end of this wall appears to be located approximately two feet north of the line claimed by appellant.
Some time later, appellees built a low brick wall about ten inches high on the front or west line of their lot. The north end of appellees' brick wall lies about three inches south of appellant's low concrete wall above mentioned.
The decree of the trial court established the boundary line to "Begin at a point equal distant between the abutting ends of the walls in front of the respective properties."
In 1948, appellant built a concrete block wall about 15 to 20 inches high, running east and west, and on top of this concrete block wall erected a wire fence. This wall appears to lie about two feet north of the line claimed by appellant, and extends a distance of perhaps 40 feet along or near *260 the middle of the disputed boundary line. Appellant testified that this wall was built to enclose a rose garden and not to establish a boundary line. The trial court established the boundary line along the south side of this wall.
Appellant also built a retaining wall on the east side of his lot. The south end of this retaining wall also stopped some two feet north of appellant's south boundary line as contended for by the appellant.
The dimensions of these several walls are not stated precisely in the testimony, but pictures thereof appear as exhibits in the record, and the dimensions stated in this opinion are those that appear to the writer to be approximately correct according to the record filed here.
The decree appealed from recited that the boundary line between the property of the parties "had been agreed to by and between the parties" and described the boundary line, appointed a surveyor to establish said line in accordance with the decree, and taxed the costs one-half against each party.
A map or plat made by the appointed surveyor as ordered by the final decree was filed in the court below and appears in the record.
The record shows that appellees' concrete block house occupies a portion of appellant's lot as the south line of that lot is determined by the description in the deeds of the parties. Appellant argues the proposition that in order for appellees to acquire title to that portion of appellant's lot on which appellees' building stands, appellees must prove possession for the full ten-year period. Appellant further says that appellees have failed to carry the burden of proving adverse possession for ten years, and, therefore, appellees cannot succeed in this suit and the decree establishing the disputed line is erroneous.
While the proposition asserted by appellant is correct, we do not think it applies in this case. The trial court did not rest its decree on adverse possession, but instead found that the line had been agreed on by the parties and established the line on the basis of that agreement.
This decision does not rest on adverse possession. We think the doctrine of estoppel in pais applies.
That doctrine has been stated by this court as follows:
See, also:
The following statements of this court on estoppel were collected and set out in Burleson v. Mays, infra:
"`It is a sound and honest rule of equity, supported by principles of justice as well as of public policy, that if one knowingly though passively, suffers another to purchase and spend money on land, under circumstances which induce an erroneous opinion or mistaken belief of title, without making known his claim, he shall not afterwards, in a court of conscience at least, be permitted to successfully assert any right or title against the purchaser. Hatch v. Kimball, 16 Me. 146; Marshall v. Pierce, 12 N.H. [127] 136; Wendell's Ex'rs v. Van Rensselaer, 1 Johns.Ch. [N.Y.] [344] 354; Blake's Lessee v. Davis, 20 Ohio. 231.' Alabama Gt. Southern R. Co. v. South & North Ala. R. Co., 84 Ala. 570, 580, 3 So. 286, 290 [5 Am.St.Rep. 401].
That doctrine has been applied by this court in Hendrix v. Southern Railway Co., *262 130 Ala. 205, 30 So. 596. Headnote 1 in that case recites as follows:
Also, in Thompson v. Page, 255 Ala. 29, 34, 49 So. 2d 910, 914, in 1951, this court said:
While possession for less than ten years may not confer title at law, where an owner of land has affirmatively represented the location of his boundary line to his neighbor and failed to object when the neighbor erected a building in reliance on such representation, the owner of the land encroached on will not, in equity, afterward be heard to say that his representation as to the location of the line is untrue.
In the instant case, appellant by his own admission saw appellees erecting the building, but did nothing. If the testimony of Richard M. Fletcher and Baker is believed, the appellant in this case did not merely stand by in silence, but actively participated in the location of the boundary line on which the appellees rely; wherefore, the appellant will not be permitted in this suit to oust the appellees on the strength of appellant's legal title.
We have carefully considered the entire record and exhibits, and also, the authorities relied on by appellant. The disputed issues were questions of fact. There was ample evidence to support the finding of the trial judge who heard the evidence ore tenus. We cannot say that the decree is unsupported by the evidence or so palpably wrong or manifestly unjust that we can reverse it. Christian v. Reed, 265 Ala. 533, 92 So. 2d 881; Holoway v. Carter, 261 Ala. 51, 72 So. 2d 728; 2 Ala. Dig., Appeal and Error.
Appellant further assigns as error that the decree is vague and indefinite in that the boundary line as described therein is incapable of being located.
We are of opinion that the decree is sufficiently definite to enable a surveyor and the sheriff to locate the line on the ground in accordance with the decree.
The decree appealed from is due to be and is affirmed.
Affirmed.
All the Justices concur except STAKELY, J., not sitting. | June 20, 1957 |
77879bfd-76a8-4fa0-a67f-e4609a65fe67 | Alabama Gas Corporation v. Morrow | 93 So. 2d 515 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 515 (1957)
ALABAMA GAS CORPORATION et al.
v.
Hugh MORROW, Jr.
6 Div. 64.
Supreme Court of Alabama.
March 7, 1957.
*516 White, Bradley, Arant, All & Rose, Birmingham, for appellants.
Dumas, O'Neal & Hayes, Sirote, Parmutt, Friend & Friedman, and Chas. Morgan, Jr., Birmingham, for appellee.
LAWSON, Justice.
Hugh Morrow, Jr., is a stockholder and director of Alabama Gas Corporation, an Alabama corporation, whose common (voting) stock is listed and registered on the American Stock Exchange, which is a national securities exchange within the meaning of the federal Securities Exchange Act of 1934, § 78a et seq., Title 15, U.S.C.A., and is so registered.
On May 8, 1956, and at various times thereafter prior to the commencement of this action, Morrow made demand upon the appropriate officers of Alabama Gas Corporation to give him access to the books and records of the said corporation which show the names and addresses of its stockholders so that he, Morrow, might communicate with other stockholders.
Such demands being consistently refused, Morrow on May 24, 1956, filed his petition against the Alabama Gas Corporation; its President, Richard A. Puryear, Jr.; its Board Chairman, J. N. Greene; its Secretary, P. E. Behr; and against its Treasurer, *517 N. R. Kerredge, wherein he prayed that peremptory writs of mandamus issue to the individual respondents commanding them to grant to him access to and the right of examination and inspection of the books and records of Alabama Gas Corporation showing the names and addresses of its stockholders, and the right to make extracts therefrom at reasonable and proper times.
From a judgment awarding the peremptory writs substantially as prayed, the respondents below have prosecuted this appeal.
The right of a stockholder to inspect and examine the books and records of a private corporation is declared by statute, § 34, Title 10, Code 1940, which reads: "The stockholders of all such corporations have the right of access to, and of inspection and examination, in person or by agent, of the books, records, and papers of the corporation at reasonable and proper times."
This statute, which has continued in force for many years without material change, has been construed and applied by this court in several cases. We will here merely reannounce a few of the settled rulings concerning that statute.
The statute is not merely a reenactment of the common law on the subject. It enlarges the right and removes certain common law restrictions tending to embarrass exercise of the right, rendering it consistent and coextensive with the stockholder's right, as a common owner of the property, books and papers of the corporation and, at the same time, consistent with the duties and obligations of the managing officers, as agents and trustees.
The only limitation expressed in the statute is that such right be exercised "at reasonable and proper times." However, an implied limitation is that it shall not be exercised from idle curiosity or for improper or illegal purposes. See Hutson v. Brown, 248 Ala. 215, 26 So. 2d 907.
Mandamus is the recognized remedy if a demand for access to the records at reasonable and proper times is denied by the officers having custody and control thereof.
The petition for mandamus where the corporation, is an Alabama corporation need only disclose the relation of stockholder, a proper demand and refusal.
The officers refusing the exercise of this right by the stockholder on the ground of mere curiosity, or because of some improper or unlawful purpose of the stockholder, have the burden of establishing such ground of refusal.
See Loveman v. Tutwiler Inv. Co., 240 Ala. 424, 199 So. 854, and the cases there cited.
The appellants, the respondents below, in their answer or return to the alternative writ, set up a defense in substantially the following language. The law of Alabama, § 34, Title 10, Code 1940, in so far as it deals with the right of access to stock lists of corporations whose voting securities are registered on a national securities exchange, has been superseded by federal law, § 78n(a), Title 15, U.S.C.A.; Regulation X-14, Rule X-14A-7, of the federal Securities Exchange Commission, where the purpose of demanding access to the stock lists of such corporations is to secure proxies from other stockholders.
The trial court rejected that defense and as above indicated ordered the issuance of the peremptory writs after finding, among other things, that Morrow's chief motive in demanding access to the stock lists was to solicit proxies from other stockholders to be used in a proxy contest between management on the one hand and Morrow and Lewis J. Odess on the other. However, the trial court further found: "Neither at the time of petitioner's [Morrow's] demand did he intend, nor has he since intended, nor does he now intend to make solicitation without compliance of Regulation X-14 *518 (January 1956) of the Securities and Exchange Commission and other conditions precedent to the making of lawful solicitation."
The appellants contend that the trial court erred in rejecting the defense of federal preemption and in support of that contention cite a number of decisions of the Supreme Court of the United States wherein that court has held invalid or inoperative state statutes dealing with subjects which that court considered had been preempted by federal legislation. It would serve no useful purpose here to engage in a detailed discussion of those cases, as none of them deal with the statutes and regulations of instant concern, or to attempt to set out in this opinion what we understand to be the test prescribed by the United States Supreme Court for determining whether given federal legislation has preempted a field so as to supersede state legislation.
It is our view that the provisions of § 78n(a), Title 15, U.S.C.A., which makes it unlawful to solicit proxies in contravention of the rules and regulations of the Securities and Exchange Commission, and the applicable Regulations and Rules promulgated thereunder, should not be construed as depriving a stockholder of rights given to him by § 34, Title 10, Code 1940, which section does not in any way relate to the manner of soliciting proxies. We do not consider it to be a defense to the instant proceeding, which merely seeks to obtain the names of stockholders that the proxies and accompanying material which may be hereafter sent out to stockholders may have to comply with the rules and regulations of the Securities and Exchange Commission. Application of Joslyn, 191 Misc. 512, 78 N.Y.S.2d 183, affirmed Joslyn v. Universal Laboratories, 273 App.Div. 945, 78 N.Y.S.2d 923; Application of Ditisheim, Sup., 96 N.Y.S.2d 622; Smith v. Republic Pictures Corp., Sup., 144 N.Y.S.2d 142, affirmed 286 App.Div. 1000, 145 N.Y.S.2d 311; Belknap v. Lock Steel Chain Co., (unreported), Superior Court, Fairfield County, Conn. See Howard v. Furst, D.C., 140 F. Supp. 507. As shown above, the trial court found that Morrow would so comply.
We hold that the trial court did not err in rejecting the defense of federal preemption.
Based upon the assumption that state law, § 34, Title 10, Code 1940, governs this case, the respondents below asserted that the peremptory writ should not issue for the reason that in a meeting of the Board of Directors of the defendant corporation Morrow voted in favor of a resolution whereby the corporation was required to mail to its stockholders certain material which Morrow submitted after complying with certain requirements of the federal Securities and Exchange Commission. This action on the part of Morrow, the respondents contended constituted a waiver of his right to proceed under § 34, Title 10, supra.
We cannot agree. The record before us clearly shows that in voting for the resolution referred to above Morrow was pursuing the only course open to him prior to the forthcoming meeting of the Board of Directors. That he did not intend to waive his rights under state law by voting for that resolution is clearly evidenced by the fact that immediately after that resolution was adopted he offered a resolution calling upon the management to permit him to view the stock lists, which resolution failed of passage.
We are not here concerned in any way with the merit or lack thereof of the position taken by management or by Morrow and his associates in what is obviously a fight for control of the Alabama Gas Corporation. We simply hold that from the record before us it appears that the trial court correctly ordered the individual respondents to accord to Morrow the rights given to him by the law of this state, which we do not think has been superseded by *519 federal legislation or regulation and which rights we do not construe the record as showing to have been waived by Morrow.
The judgment is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | March 7, 1957 |
c131d717-21e4-4350-8de6-4d66985cbfbf | The Commercial Bank v. Hall | 94 So. 2d 198 | N/A | Alabama | Alabama Supreme Court | 94 So. 2d 198 (1957)
THE COMMERCIAL BANK
v.
L. F. HALL et al.
4 Div. 886.
Supreme Court of Alabama.
April 4, 1957.
Albrittons & Rankin, Andalusia, for appellant.
A. R. Powell, Jr., and W. H. Baldwin, Andalusia, for appellees.
MERRILL, Justice.
This cause was tried by the circuit court without a jury under Count 5 of the complaint, in which appellees, L. F. and J. V. Hall, partners d/b/a Hall Tie & Timber Agency, sued appellant, The Commercial Bank at Andalusia, for $1,868.04 for paying a check for that amount after the Halls had filed a written stop payment order with the bank. The trial court entered judgment in favor of plaintiffs and the bank appealed.
The cause is here on an agreed stipulation of facts which, in short, are as follows:
The Halls' bank account was styled "Hall Tie and Timber Agency" and either L. F. Hall or J. V. Hall could sign checks. On May 27, 1954, L. F. Hall issued a check on the account for $1,868.04, being payable to W. M. Avery. On May 29, 1954, J. V. Hall gave the bank a written stop payment order on said check. On June 9, 1954, W. M. Avery presented the check for payment and one of the tellers paid it. The *199 bank did not debit the Hall account with the check until July 15, 1954.
When J. V. Hall wanted to stop payment on the check, he went to the bank, stated his business and was presented with a red bordered form furnished by the bank, and a stenographer employed by the bank filled it out for him. The stop payment order filed by Hall contained the following qualification:
The trial court, in sustaining a demurrer to a plea setting up this qualification, or release as we shall subsequently term it, held, in effect, that the release was void as being contrary to public policy.
Practically all the authorities cited infra hold that the drawer of an uncertified check has a legal right to stop payment thereof by giving a seasonable stop payment notice to the bank on which it is drawn, and, if the bank thereafter pays such check, it is liable therefor. That is the bank's common law liability and it grows out of the relationship of the parties, which is that of debtor and creditor. After receipt of a notice to stop payment, the bank pays at its peril. See also, Southern Bank & Trust Co. v. Whited, 25 Ala.App. 309, 145 So. 832; Bank of Moulton v. Rankin, 24 Ala.App. 110, 131 So. 450, certiorari denied 222 Ala. 188, 131 So. 454; Peoples Savings Bank & Trust Co. v. Lacy, 146 Ala. 688, reported in full 40 So. 346.
Appellant aptly states the major question in these words"the primary point for consideration and decision in this case is the validity of that provision of the written stop payment order relieving drawee bank of all liability should payment be made through inadvertence or accident only."
This question is one of first impression in this Court, and has been decided in only eight states. The first case was decided in 1920, in Tremont Trust Co. v. Burack, 235 Mass. 398, 126 N.E. 782, 9 A.L.R. 1067. It was there held that the consideration for the clause relieving the bank from its liability springs from the mercantile relation of the parties and the reciprocal rights and obligations which the law attaches to that relation. It further held that the provision was not void as against public policy, despite the fact that it, in effect, relieved the bank from liability for payment through the negligence of its employees. In 1926, the Court of Appeals of New York followed the Massachusetts case in Gaita v. Windsor Bank, 251 N.Y. 152, 167 N.E. 203. In 1932, the Indiana Appellate Court followed the Massachusetts and New York cases in Hodnick v. Fidelity Trust Co., 96 Ind.App. 342, 183 N.E. 488.
The first case to hold differently was Hiroshima v. Bank of Italy, 78 Cal. App. 362, 248 P. 947, decided in 1926. It was there held that such a provision relieving the bank against liability was void as against public policy. There appears to be some question as to the applicability of some California statutes to the question, but the issue was met squarely by the Ohio Supreme Court in 1948, in the case of Speroff v. First-Central Trust Co., 149 Ohio St. 415, 79 N.E.2d 119, 1 A.L.R.2d 1150. That court considered the cases previously decided on the point and held that the release was void, both on the ground of lack of consideration and as being against public policy. (An annotation on the subject is found in 1 A.L.R.2d 1155).
*200 A year later, 1949, the question was presented to the Supreme Court of Errors of Connecticut. That court reviewed the cases on both sides of the question and held that the release was not supported by a consideration and was unenforceable. Having reached such a conclusion, it did not consider the question of whether it was void as against public policy. Calamita v. Tradesmens Nat. Bank, 135 Conn. 326, 64 A.2d 46.
In 1950, in Michaels v. First National Bank of Scranton, 73 Pa.Dist. & Co.R. 29, the court reached the same conclusion as that reached by the Connecticut court, but apparently without the benefit of that decision as it is not cited.
Then in 1951, the New Jersey Superior Court followed the Connecticut decision after reviewing the authorities in Reinhardt v. Passaic-Clifton Nat. Bank & Trust Co., 16 N.J.Super. 430, 84 A.2d 741, affirmed 9 N.J. 607, 89 A.2d 242.
We have carefully considered the cases on each side of the question and we have concluded that the better reasoning is found in those cases which hold the release void for the lack of consideration. Chief Justice Weygandt, speaking for the Ohio Supreme Court, in Speroff v. First-Central Trust Co., 149 Ohio St. 415, 79 N.E.2d 119, 122, 1 A.L.R.2d 1150, said:
We quote from Calamita v. Tradesmens Nat. Bank, 135 Conn. 326, 64 A.2d 46, 49:
Also pertinent is the following from Reinhardt v. Passaic-Clifton Nat. Bank & Trust Co., 16 N.J.Super. 430, 84 A.2d 741, 744:
We might add as a practical matter, that it does not appear reasonable to hold that a stop payment order seasonably made orally, by telegram or by letter, can impose liability on a bank when disregarded, and yet hold that a regular red bordered stop payment form, furnished by the bank, removes all liability for negligence in failing to heed the stop payment order, merely because a release is printed under the stop payment order.
Having held the release to be void for the lack of consideration, it is not necessary to discuss the question of public policy.
Appellant urges that the stop payment order did not properly describe the check because the check was signed "Hall Tie & Timber Agency by L. F. Hall," while the stop payment order was signed "Hall Tie & Timber Agency by J. V. Hall." The stipulation of facts shows that either L. F. or J. V. Hall were authorized to sign checks against the account of Hall Tie & Timber Agency. We think this sufficient to show the lack of merit in appellant's contention, and we need not go into the question of estoppel raised by the bank's acceptance of the stop payment order and its failure to debit the account of Hall Tie and Timber Agency with the amount of the check until more than thirty days after it had paid same.
It is also argued by appellant that the trial court erred in overruling and denying the bank's motion to transfer the cause to equity.
The denial of a motion to transfer a cause from the law docket to the equity docket, under Tit. 13, § 153, Code 1940, is not reviewable on appeal. Wiggins v. Stewart Bros., 215 Ala. 9, 109 So. 101; Pickens County v. Johnson, 227 Ala. 190, 149 So. 252. Mandamus is the proper remedy. Ex parte Tennessee Valley Bank, 231 Ala. 545, 166 So. 1; Ex parte City of Bessemer, 240 Ala. 52, 197 So. 20; Edge v. Bonner, 257 Ala. 385, 59 So. 2d 683.
The judgment of the circuit court is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | April 4, 1957 |
dc41cf82-ca08-4a42-a050-1d5aaae89fa2 | Champion v. McLean | 95 So. 2d 82 | N/A | Alabama | Alabama Supreme Court | 95 So. 2d 82 (1957)
Louise S. CHAMPION as Tax Assessor of Montgomery County, et al.
v.
James McLEAN et al.
3 Div. 786.
Supreme Court of Alabama.
April 25, 1957.
*84 John Patterson, Atty. Gen., Wm. F. Thetford, Circuit Solicitor, Montgomery, Willard W. Livingston and Arthur Joe Grant, Asst. Attys. Gen., for appellants.
Rushton, Stakely & Johnston and John B. Scott, Montgomery, and Preston C. Clayton, Eufaula, for appellees.
COLEMAN, Justice.
Appellees, taxpayers and owners of cattle in Montgomery County, filed a bill in equity for declaratory judgment and respondents filed demurrer. Demurrer of appellants was overruled and counsel for both parties stipulate that the facts alleged in the bill are true, and that the questions for decision are solely questions of law which may be determined from appellees' bill for declaratory judgment.
The circuit court rendered a decree construing the statutes involved in accordance with appellees' contentions. From that decree, this appeal is taken and the rulings of the circuit court are assigned as error.
The question regarding the existence of a justiciable controversy was raised by the demurrer. In overruling the demurrer, the trial court held that such a controversy did exist. The correctness of this ruling is one assignment of error, but we pretermit consideration thereof because appellants state in brief:
The appellants, as tax officials, contend that all cattle are subject to ad valorem tax by virtue of the provisions of Title 51, § 21(e), Code 1940, except as specifically exempt under Title 51, § 2(j), Code 1940.
Appellees contend that all cattle raised on the farm in the hands of the original producer are "products raised on the farm in the hands of the original producers" within the meaning of Title 51, § 21(d), Code 1940, and that cattle remaining in the hands of the original producer thereof are "agricultural products" within the meaning of Title 51, § 2(h), Code 1940. Appellees further contend that cattle which have been raised or grown in the State of Alabama and which remain in the hands of the producer thereof, or his landlord, or in the hands of a co-operative association for all time, and for a period of one year in the hands of the purchaser of said cattle, are exempt from ad valorem taxation under Title 51, § 2(h), Code 1940
The decree appealed from recites that it is:
The above rulings of the circuit court are assigned as error and argued on this appeal. The sole question for decision by this court is the correctness of the above rulings of the circuit court.
Paragraph 1. of the decree below declared that cattle raised on the farm in the hands of the original producer are products raised on the farm in the hands of the original producer and are therefore tax exempt, within the meaning of Subsection (d) § 21, Title 51 Code 1940.
The pertinent subsections of § 21, Title 51 Code 1940, recite as follows:
The subsections quoted above from the 1940 Code are the same, without any material change, as Subsections (d) and (e) of § 10 of Act No. 194, Acts 1935, page 256, entitled "An Act To Provide For The General Revenue Of The State of Alabama."
Stripped of phrases and clauses not essential to this decision, the pertinent provisions of Subsections (d) and (e) of § 21, Title 51 Code 1940, read as follows:
Subsection (d) which is set out above, as it appears to us, is clearly intended to relate to the assessment of "all stocks of goods, wares and merchandise," kept for sale, etc. The proviso of said Subsection (d) relied on by appellees, appears at the end of a sentence which begins with the words "All stocks of goods, wares and merchandise."
The next and last sentence of the subsection provides that in the event the person "carrying on such business shall fail to make return of the amount of stock of goods, wares and merchandise as provided by law, or if the county tax assessor is not satisfied with the return made, * * *," he may proceed in the manner there indicated to obtain information so as to assess the "amount of such stock of goods, wares or merchandise" upon his best judgment.
It appears to us that this subsection was intended by the legislature to deal with a mercantile business. The subjects of taxation mentioned therein are designated by words commonly used to designate the articles or assets owned by persons engaged in the mercantile business or operating a retail store. The subsection provides "* * * this shall include all goods, wares and merchandise kept on plantations or elsewhere, * * * for sale or to be dealt out to laborers or employees for profit, or on account of their wages, * * *."
*87 It is common knowledge that on plantations in 1935, and long prior thereto, the owners or operators of such plantations, in many cases, operated a "store" for the convenience of tenants or wage hands, as well as others. It is also common knowledge that in some of those plantation stores, meat, corn meal, lard, and other farm raised commodities were kept in the store for sale or issue to tenants or wage hands, or others. It would appear reasonable to conclude that it was the intention of the legislature to exclude from the taxable inventory of these plantation stores, such merchandise carried in stock as may have been produced on the farm which was served by this mercantile establishment.
We think it plainly evident that it was not the intention of the legislature to include "live cattle" in the assessment exemption proviso therein set out. It would appear unreasonable to conclude that live cattle would be a part of the "goods, wares and merchandise" of a mercantile establishment.
Bacon, corn meal, syrup, lard or side meat produced on the farm, might appear in the stock of goods of the plantation store. By the quoted proviso, the legislature intended to exempt from ad valorem tax, such products made from animals and crops produced and processed on a farm, and carried in the stock of goods in the farm store. It does not follow, however, that the legislature intended, by this proviso, to exempt the live animals on such farms from ad valorem tax. Live cattle on the farm would not ordinarily appear in the inventory of a plantation store." * * * all cattle" not specifically exempted would be assessed and taxed under Subsection (e) of § 21.
The record of the origin and history of Subsection (d) of § 21, Title 51, supports and confirms the foregoing conclusion.
Act No. 1, Acts of 1865-66, page 3, in § 2 recites in pertinent part:
The foregoing provision taxing stocks of goods, wares, and merchandise, including merchandise on plantations, has been carried forward in many subsequent legislative acts. See: 1866-67 Acts, page 259; 1868 Acts, page 297, § 6(4); 1874-75 Acts, page 3, § 5(4); 1875-76 Acts, page 43, Chapter III, § 4(4); Act No. 61, 1882-83 Acts, page 67, § 5(4) adds the provision that the tax shall be apportioned according to the date when the business commenced, and in pertinent part recites as follows:
The Supreme Court held Act No. 61, supra, void for reasons not here important, but the provisions quoted from § 5(4), supra, were carried without substantial change into 1884-85 Acts, page 3.
Act No. 559, 1894-95 Acts, page 1162, introduced for the first time, so far as we have found, the proviso here important, which is to the effect that the assessment shall not include products raised on the farms in the hands of original producer, and in pertinent part recites:
Later acts repeated these provisions, without substantial change, but did change the method of valuation with reference to invoice price and capital employed. See: 1898-99 Acts, pages 48, 164; 1903 Acts, page 184; 1915 Acts, page 386; 1919 Acts, page 282; and the language in § 10(d) of 1935 Acts, page 256, is identical, except for spelling, with Subsection (d) of § 21, Title 51, Code of 1940, which is presently the law in point in the instant case.
Paragraph 1. of the decree appealed from, held that cattle in the hands of the producer are exempt from ad valorem tax within the meaning of Subsection (d) of § 21. For the reasons set out, we are of opinion that this was error.
Paragraphs 2. and 3. of the decree appealed from rest on a construction of Subsection (h) of § 2, Title 51, Code 1940, and declare that cattle in the hands of the original producers, and for one year in the hands of the purchaser of said cattle, are argicultural products within the meaning of Subsection (h) of § 2, and are, therefore, exempt from ad valorem taxation.
The correctness of this holding depends on a construction of Subsection (h) of § 2, in its proper relation to the other provisions of the tax laws. In undertaking this construction, we are to be guided by certain principles and rules of statutory construction. We will hereinafter set out those thoughts to be applicable to the instant case.
The fundamental rule of construction of statutes is to ascertain and give effect to the intention of the legislature as expressed in the statute. This rule hardly *89 requires citation of supporting authority, but see Weill v. State, 250 Ala. 328, 333, 34 So. 2d 132, 136, where Livingston, now Chief Justice, speaking for this court, said:
The decree below determined that the term "agricultural products," as used in the statute, included cattle. We have no difficulty in agreeing that the term "agricultural products" may properly be construed to embrace cattle when the intent to include cattle appears from the time, manner, and place in which the term is used. Likewise, horses, mules, hogs, sheep, goats, poultry, and other animals produced on the farm might be included within the meaning of the term "agricultural products," when such an intent appears to be the sense in which the words "agricultural products" are employed. See Dillard v. Webb, 55 Ala. 468.
The question here to be determined, however, is not merely: Does the term "agricultural products" include cattle or livestock, as an abstract proposition, but, as aptly stated by the trial court, the question is:
In seeking the answer to this question, Subsection (j) of § 2 cannot be ignored.
Pertinent subsections of § 2 of Title 51, Code 1940, recite as follows:
*90 Appellees contend that Subsection (h) is intended to exempt from taxation cattle in the hands of a producer, while Subsection (j) is intended further to exempt two cows and two calves, and the other animals there enumerated, produced by any person, and in the hands of any person.
If that were the legislative intent as to the livestock enumerated in Subsection (j), the legislature could have easily so expressed that intent by the insertion of the words, "raised by any person," or words of like effect, in Subsection (j).
The legislature did that in § 2 in two instances, in dealing with items which in dealing with items which would be "agricultural products" within the meaning of that term as contended for by appellees.
Subsection (h) expressly provides that "cotton" raised or grown in Alabama, in the hands of the producer shall be exempt. Subsection (i) lists as an exempt article "All cotton, wherever grown, stored in licensed warehouses in the State of Alabama for a period not exceeding twelve months."
Under appellees' definition of "agricultural products," poultry would be included, and if appellees are correct, poultry in the hands of the producer would be exempt under Subsection (h). Yet the legislature expressly dealt with the exemption of poultry under Subsection (o), which specifies as exempt:
If the legislature did intend to create two classes of exempt livestock, as contended by appellees, we can only conclude that the language of the statute fails to express that intention.
§ 2 of Title 51, however, is not a statute levying taxes, but is a statute granting an exemption from taxes. To statutes of this kind, a different rule of construction applies. This court has said:
This rule has also been expressed in the following language:
See also, Title Guarantee Loan & Trust Co. v. Hamilton, 238 Ala. 602, 604, 193 So. 107, 108, where the court said:
The reason for the rule of strict construction against exemptions was stated by this court speaking through Gardner, C. J., as follows:
Appellees appear to concede that the statutes under construction are ambiguous, at least to the extent of sustaining the right of appellees to have a declaratory judgment in this case. We quote from appellees' brief:
A further principle of construction is due to be applied to Subsections (h) and (j) of § 2.
Speaking through Livingston, J., now C.J., this court has said [250 Ala. 328, 34 So. 2d 137]:
According to this rule of construction, where a statute enumerates certain things on which it is to operate, the statute is to be construed as excluding from its effect all those things not expressly mentioned. 82 C.J.S. Statutes § 333, p. 666.
This rule of construction is not a technical or arbitrary rule. It is applied by people in all walks of life every day in their ordinary affairs. Perhaps the best illustration can be drawn from traffic signals.
At street intersections, motorists frequently encounter a traffic sign which recites: "NO LEFT TURN." Such a sign does not mention "RIGHT TURN," yet, the motorist immediately infers that right turns are permitted at such an intersection because they are not mentioned on the sign, and, therefore, are intended to be excluded from the prohibition expressly stated against left turns. If both right turns and left turns are prohibited, the sign recites "NO TURN."
Another common sign at intersections is "TURN RIGHT ON RED." LEFT TURNS are not mentioned, but the motorist *92 does not infer that he is permitted to turn left on the red light. On the contrary, he infers that left turns, because they are not mentioned, receive opposite treatment, and are not permitted on the red light.
Subsection (e) of § 21, levies ad valorem tax on all cattle and horses, mules, studs, jacks, jennets, hogs, sheep, and goats, "except as specifically exempted."
Subsection (j) of § 2 specifically exempts from ad valorem tax: two mules or two horses, two cows, two calves, ten hogs, twenty sheep, and twenty goats.
By these two subsections, the legislature has clearly expressed an intent that the specified numbers of animals therein named shall be treated as tax exempt. The ordinary and reasonable inference is that all animals of the kinds taxed, in excess of the number expressly exempted, shall receive tax treatment opposite and contrary to the treatment accorded to the specified numbers declared exempt.
As applied to cattle, these Code sections clearly express a legislative intent to exempt from taxation the four head of cattle there specified, that is, two cows and two calves. The reasonable inference, therefore, is that the legislative intent was not to exempt any cattle not expressly exempted, and that all cattle of one owner in excess of two cows and two calves are subject to ad valorem tax.
We are unable to conclude that the statute clearly expresses a legislative intent to exempt from taxation all cattle in the hands of the original producer, or that appellees have supported the burden which they assumed when they undertook to establish their right to the tax exemption which they have claimed.
History of Subsecs. (h) and (j), § 2, Title 51
"The genesis of the statute here involved * * * may be looked to in aid of its construction." Baggett v. Jackson, 244 Ala. 404, 13 So. 2d 572, 573; Acme Freight Lines v. City of Dothan, 242 Ala. 468, 6 So. 2d 595.
The earliest Alabama statute taxing or exempting cattle appears to be an act approved December 27, 1822, Acts of 1822, page 98, which in pertinent part recites:
Later tax statutes followed the same pattern and taxed all cattle owned by any one person in excess of a specified number. See Acts of 1843, page 3; Acts of 1848, page 3; Acts of 1849-50, page 3; Acts of 1862, page 3; and Acts of 1865-66, page 3.
Act No. 260, Acts of 1866-67, page 259, levied a tax "On all cattle on the excess over five head," and contains an exemption proviso as follows:
Act No. 1, 1868 Acts (November Session), page 297, exempted from taxation "To every head of a family personal property to the value of five hundred dollars," and required every person to make a statement *93 to the assessor setting forth "all the real and personal property not by this act exempt," including among other things, the number of cattle, mules, horses, sheep, goats, and hogs over six months old.
Act No. 1, approved March 6, 1876, 1875-6 Acts, page 43, entitled "An Act To establish a Revenue Code for the State of Alabama" set the pattern for revenue acts, which has been followed up to the present time with respect to ad valorem taxation of cattle and other farm animals.
The pertintent provisions of said act are as follows:
These sections of the 1875-6 Act clearly express an intent that all cattle shall be taxed, except "so much thereof is exempt * * * under the provisions of section one of chapter two." 1 yoke of oxen and 2 cows and calves are exempt under section one of chapter two. Therefore, under this act, all cattle except the number of oxen, cows, and calves, expressly mentioned in section one of chapter two were subject to taxation.
Chapter II of said Act No. 1 listing tax exempt property was codified as § 358, Code of 1876.
The provisions of § 4 of Chapter III of said act setting the tax rate at seventy-five cents per one hundred dollars was changed by the legislature before the 1876 Code was completed. By an act approved February 8, 1877, Acts of 1876-7, page 3, the tax rate was set at seven-tenths of one percent, and the latter act was codified as § 368 of the 1876 Code.
*94 In the codification process, the above underscored exception contained in Chapter III of Act No. 1, 1875-6 Acts, page 43, which is to the effect that all cattle, etc. are taxed except "so much thereof is exempt * * * under * * * chapter two" was omitted from the 1876 Code.
§ 362(5) of the 1876 Code requires a listing for taxation of "all cattle, horses, mules, studs, jacks and jennets and race horses; all hogs, sheep and goats," in the exact language of said Act No. 1, 1875-6 Acts, page 43.
With respect to the matters with which we are here concerned, the levying and exempting provisions of the 1876 Code are the same as Act No. 1, 1875-6 Acts, page 43, except for the omitted exception as hereinabove noted.
We are of opinion that the intent and meaning of said Act No. 1 was carried into the 1876 Code in so far as the number of cattle exempted from taxation is concerned. Under that Code, all cattle, except the number specifically exempted, were subject to ad valorem tax.
The provisions of Act No. 1, 1875-6, levying a tax on cattle and other livestock, and exempting two cows and calves, hogs, goats and sheep have been carried into later acts and finally into the Code of 1940, Title 51. See Acts of 1882-83, page 67; Acts of 1884-85, page 3. The provisions levying a tax on "all cattle, horses * * *." etc., of § 4 of Chapter III of Act No. 1, Acts of 1875-6, constitute the origin of that provision of Subsection (e) of § 21 of Title 51, Code 1940, which levies tax on all cattle, etc.
Act No. 328, General Acts 1919, page 282, employs the words: "except as specifically exempted," in the tax levying provisions of that act, in the same manner as said words appear in § 21(e), Title 51, Code 1940. In pertinent part, said Act No. 328 recites as follows:
We are of opinion that the words "except as specifically exempted," which appear in Subsection (e) of § 21, immediately following the word, "goats," have the same meaning and effect as the words "except when so much thereof is exempt from taxation under section one of chapter two of this act," as the latter words appear in said Act of 1875-6.
The term "agriculture products" appears to have been used for the first time in two legislative acts which were approved on the same day, December 11, 1886.
Act No. 4, Acts of 1886-87, page 31, amended certain sections of the revenue act of December 12, 1884, and in particular amended the exemption section (which is the progenitor of Subsection (j) of § 2, Title 51), in the part here pertinent, to read as follows:
The exemption statute has treated "two cows and calves" in a generic class separate from "agricultural products" since the first use of the latter term in the exemption statute.
The Senate Journal, 1886-87, page 318, shows that on consideration of the bill which became Act No. 4 of that session of the General Assembly, the Senate inserted the term "agricultural products" by amendment as follows:
The term "agricultural products" was also used by the 1886-87 General Assembly in another exemption statute, Act No. 333 (H.B. 20), 1886-87 Acts, page 757. We must presume the same term had the same meaning in both Acts No. 4 and No. 333, for a different intent does not appear.
H. B. 20, as first introduced, was entitled "An Act To exempt cotton in the hands of producers from Taxation," and, as first presented, provided exactly for the purpose expressed in its title, and no more.
The House and Senate Journals show that this bill was amended during passage. It appears to have been a controversial bill.
H. B. 20, referred to ways and means committee, at first received an adverse report. H. J., 1886-7, page 1181. On November 29, 1886, the bill was read in the House for a third time and lost, yeas 42, nays 49. H. J., 1886-7, page 255.
On November 30, 1886, the vote was reconsidered, and several amendments offered, all of which were withdrawn or lost in the House, except one, which was later stricken out by the Senate substitute. A motion was made to recommit, and also to refer to a select committee.
After passage by the House, H. B. 20 was sent to the Senate, where a substitute reciting as follows was passed:
The House concurred in the Senate substitute which became the final form of the act approved by the Governor.
The legislature which originated the exemption for "agricultural products" retained the older express exemption of certain animals in specific numbers and amounts, as such specific exemption appeared in previous statutes, and as the same appears in later statutes, even to this day.
Any argument that the legislature of 1886-87 expressed an intent to create two *96 separate classes of exemptions by repeating the same terms in two separate acts is overcome by the fact that later legislatures combined the two original exemptions into one exemption in later acts. See Act No. 328, Acts 1919; Act No. 172, Acts 1923; Extra Session, Acts 1933, page 8; and Acts 1935, page 256, infra. In these later acts exempting "agricultural products," the lawmakers continued to treat "agricultural products" as a separate class from "two cows and calves" as does § 2, Title 51, Code 1940. The meaning which has been retained by the legislature is the meaning which results from such separate treatment which has been retained.
This continued specific exemption of a certain number of named animals, we must conclude, was not inadvertently done.
We are told that it is our duty to ascertain the meaning of the words at the time they were used by the legislature, and to give the words that same meaning now unless the meaning has changed since that time.
This rule has been pronounced by this court as follows:
The provisions of Act No. 333, exempting "cotton" appears in Subsection (8), § 3907, Code of 1896, where exemptions from taxation are listed. Between the 1886 and 1896 Codes, however, pig iron was added as a tax exempt article, and is listed as exempt in § 3907(8), Code of 1896.
See Act No. 659, § 38, Acts of 1896-97, page 1489, approved February 18, 1897.
Act No. 909, page 122, approved February 23, 1899, exempts "cotton and other agricultural products" and pig iron in hands of producer, and adds new exemption for said articles "in the hands of purchaser," purchasing same for prompt shipment.
See also Acts of 1903, page 184, of like import. The quoted exemptions for cotton and pig iron were carried into Code of 1907 as § 2064, separate from the old exemption provision which is Subsection (8) of § 2061, Code of 1907.
Act No. 464, Acts of 1915, page 386, carries forward the older exemption section and also the separate exemption section for cotton, agricultural products, pig iron and manufactured articles.
In Act No. 328, Acts of 1919, page 282, the exemptions for cotton, agricultural products, and cows, calves, etc. were combined in Subsection (g) of § 2 which exempted:
"(g) All cotton or other agricultural products which were raised or grown during the current or preceding calendar year, and which shall remain in the hands of the producer thereof, or his landlord, or in the hands of the purchaser purchasing the same for prompt shipment; provisions and supplies on hand for the current year for the use of the family and the making of the crop; all wearing apparel; farming tools to the value of twenty-five *97 dollars; tools and implements of mechanics to the value of twenty-five dollars; and the following property to be selected by the head of each family and not to exceed in the aggregate one hundred and fifty dollars, namely: cows, calves, hogs, sheep, poultry, household and kitchen furniture, and sewing machines; * * *." (Emphasis supplied.)
Pig iron and manufactured products were removed to Subsection (i) of § 2.
See Act No. 172, Acts of 1923, page 152 (H.294 Tunstall).
1933 Acts, Extra Session, page 8, and 1935 Acts, page 256, §§ 2(i) and 2(j), are substantially the same as § 2(h) and (j) of Title 51, Code 1940.
We are not convinced that the intent and meaning of "agricultural products" has changed since 1886; and are further of the opinion that in 1886, as used in the exemption statutes, agricultural products did not include cattle. The same language appears in Subsection (h) of § 2, Title 51, and it is, therefore, our duty now to give that language the original meaning and intention it bore when first used by the law-making power.
We are, therefore, of the opinion that the term "agricultural products" as used in Subsection (h) of § 2, Code 1940, was not intended by the legislature to embrace cattle within the exemption there declared. On other occasions when the legislature intended to include "livestock" within the definition of "agricultural products," the intention so to do has been clearly expressed in unambiguous terms. Title 2, §§ 85 and 130, Code 1940.
We have given careful consideration to the statutes here in question, and are not convinced that the statutes show in clear and unambiguous terms that appellees are entitled to the exemption claimed.
The decree appealed from is not in accord with the opinions herein expressed and is reversed.
The parties have indicated that the only questions to be decided on this appeal are questions of law. It does not appear that the bill of complaint can be amended so as to arrive at a different result.
Therefore, a decree is here rendered declaring that all cattle owned by appellees are subject to ad valorem tax except as specifically exempted therefrom by Subsection (j) of § 2 of Title 51, Code 1940.
This court has no power to amend the tax statutes or the exemption statutes. The power to make the law has been committed to the legislature by the Constitution. The only power of this court is to declare the law as enacted by the legislative branch of government. Constitution of 1901, §§ 42, 43, 44 and 212.
This court has pronounced the following well established principles:
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | April 25, 1957 |
17446b06-a09f-4390-8ae4-66de1ac2558f | Mickwee v. Boteler | 93 So. 2d 151 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 151 (1957)
Marle MICKWEE
v.
Ulma Lee BOTELER et al.
6 Div. 918.
Supreme Court of Alabama.
February 28, 1957.
Robt. S. Gordon and Chas. Cleveland, Birmingham, for appellant.
John A. Jenkins, Birmingham, for appellee Mary Nell Boteler.
Lange, Simpson, Robinson & Somerville, Birmingham, for appellee Tel. Co.
GOODWYN, Justice.
Marie Mickwee, appellant here, filed a bill in the circuit court of Jefferson County, in equity, alleging that over a period of several years the respondent Ulma Lee Boteler had made incessant telephone calls to the home of complainant for the purpose of harassing complainant and alienating the affections of her husband. It is further alleged that the calls have disrupted her home and "amount to a private malicious nuisance". It appears from the bill that Ulma Lee Boteler is single and lives in an apartment with her sister, Mary Nell Boteler who is also joined as a party-respondent.
The bill has several aspects. One prayer seeks to have Ulma Lee enjoined from making any further calls to complainant's home or to the homes of eight of complainant's friends and relatives listed in the bill. The court is also asked to order the respondent Mary Nell Boteler to refuse to allow her sister to use the phone in their apartment for the purpose of making further nuisance calls. The following relief *152 is sought as to Southern Bell Telephone and Telegraph Company, also made a respondent: That it be required to remove the Boteler telephone or, in the alternative, to monitor and keep records of all calls from the Boteler telephone to the home of complainant and the homes of her eight friends and relatives listed in the bill.
A demurrer to the bill was filed jointly by respondents Ulma Lee and Mary Nell Boteler. The ruling on this demurrer was as follows:
The Telephone Company filed a separate demurrer, which was ruled on as follows:
"Submission upon demurrer by respondent Southern Bell Telephone and Telegraph Company has been accorded the fullest consideration. It is, therefore,
"Ordered, Adjudged and Decreed by the Court, that the said demurrer is well taken and is hereby sustained. Complainant is allowed twenty (20) days from this date in which to amend."
This appeal is by complainant "from the decree * * * sustaining the demurrers of Mary Nell Boteler and the Southern Bell Telephone & Telegraph Company."
The first question, presented by motion of appellee Mary Nell Boteler, is whether the ruling on the Boteler demurrer is such a judgment or decree as will support an appeal or an assignment of error. We must hold that it is not. Our cases are uniform to the effect that only a formal adjudication by the court will support an appeal or assignment of error. Mangham v. Mangham, 263 Ala. 672, 83 So. 2d 721; Herrington v. Hudson, 262 Ala. 510, 80 So. 2d 519; Hiller v. Goodwin, 258 Ala. 700, 65 So. 2d 152; Weems v. Weems, 253 Ala. 205, 43 So. 2d 397; J. R. Watkins Co. v. Goggans, 242 Ala. 222, 5 So. 2d 472; Wilbanks v. Mitchell, 239 Ala. 167, 194 So. 513; Cooper v. Owen, 230 Ala. 316, 161 So. 98; Skidmore v. H. C. Whitmer Co., 221 Ala. 561, 130 So. 194; McDonald v. Alabama Midland Railway Co., 123 Ala. 227, 26 So. 165; Jasper Mercantile Co. v. O'Rear, 112 Ala. 247, 20 So. 583. As stated in the last cited case, 112 Ala. at page 255, 20 So. at page 586:
Complainant, in her bill, seeks an order requiring the Telephone Company to discontinue service to the Botelers or, in the alternative, "to monitor and keep complete records as to date, number and duration of time, of all telephone calls made by respondent, Ulma Lee Boteler, to any of the following persons or to any of the following telephone numbers" (list of eight).
Appellant's theory of the case seems to be this: That the Telephone Company, as a public utility, is under a duty to use all *153 reasonable and proper means to provide effective, prompt and adequate service to its subscribers; that the only way appellant can secure such service is to require the Telephone Company to remove the Boteler telephone, or to supervise its use so that the respondent Ulma Lee Boteler cannot impair appellant's satisfactory use of her telephone by incessant nuisance calls.
In appellant's brief the question presented is said to be as follows:
With respect to this question it is stated as follows:
It is apparent that appellant bases her right to relief against the Telephone Company on the supposed failure of the Company to render her adequate service as required by Code 1940, Tit. 48, § 34. This section is as follows:
The argument, as we understand it, is that Ulma Lee's calls prevent appellant from receiving adequate service, which she is entitled to, and that since the Telephone Company can remedy the situation by discontinuing telephone service to Ulma Lee (It is not clear from the bill which of the Botelers is the subscriber. We are treating it as though Ulma Lee is.), it should be required to do so. We are unable to follow this argument.
There is no question that it is the duty of a telephone company, as a public utility, to use all reasonable means to provide its patrons with adequate and efficient service. Vinson v. Southern Bell Telephone & Telegraph Co., 188 Ala. 292, 301, 66 So. 100, 102, L.R.A.1915C, 450; 86 C.J.S., Tel. & Tel., Radio & Television, § 66, p. 81. But there is nothing here to show that the Telephone Company's service is either inadequate or inefficient. If anything, the alleged circumstances disclose a more than adequate service.
The facts alleged in the bill show a personal controversy which is solely between the complainant and respondent Ulma Lee Boteler. The telephone is a passive, impersonal service. If it is used as an instrumentality for the creation of a private nuisance the responsibility for the nuisance rests with the individual who abuses the service and not with the Telephone Company.
Although in Vinson v. Southern Bell Telephone & Telegraph Co., supra, the action was at law for damages for failure of the company to render service to a patron, *154 due to the company's negligence, what was there said seems appropriate, by analogy, to the instant case, viz.:
We find no error in the ruling on the Telephone Company's demurrer.
Motion of appellee Mary Nell Boteler to dismiss the appeal taken from the ruling on her demurrer to the bill is granted.
The decree sustaining the Telephone Company's demurrer to the bill is affirmed.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | February 28, 1957 |
59d59144-08fb-47e6-9f88-46267d6634d4 | Shirey v. City Board of Education of Fort Payne | 94 So. 2d 758 | N/A | Alabama | Alabama Supreme Court | 94 So. 2d 758 (1957)
J. T. SHIREY et al., Members of County Board of Education of DeKalb County,
v.
CITY BOARD OF EDUCATION OF FORT PAYNE.
7 Div. 325.
Supreme Court of Alabama.
March 14, 1957.
Rehearing Denied May 9, 1957.
*759 W. M. Beck and C. M. T. Sawyer II, Fort Payne, for appellants.
Max J. Howard and J. C. Kellett, Fort Payne, for appellees.
MERRILL, Justice.
This case was commenced by the City Board of Education of Ft. Payne, Alabama, by filing a petition in the DeKalb County Circuit Court for an alternative writ of mandamus directed toward the appellants, individually and as members of the DeKalb County Board of Education, to require the appellants to deliver to the appellee the supervision, management and control of the DeKalb County High School, which is within the city limits of the City of Ft. Payne, Alabama, a city which exceeded 2500 in population according to the 1950 Federal Decennial Census.
The petition was verified and the court entered an order requiring the clerk to issue the alternative writ. Appellants filed a motion to quash the writ, and the motion to quash was stricken on motion of the appellee. Then the appellants filed a plea in abatement challenging the appellee's authority to file the proceedings because it sought the recovery of real property, and asserting that the City of Ft. Payne was the proper authority to maintain said action, and on the further ground that the court was without authority to entertain the proceedings since the writ did not inform the appellants of the facts upon *760 which the writ was based. The court sustained demurrers to the plea in abatement.
The appellants then filed demurrers to the writ and to the petition, setting forth thirty-seven grounds of demurrer, attacking the petition and writ on the grounds that the petition did not state facts which would authorize the issuance of the writ, and that the writ did not set forth facts that would authorize the court to act on it as no legal duty was shown in said writ to be due from the appellants to the appellee. The court overruled the appellants' demurrers.
The appellants then filed their answer or return, setting up twelve grounds of defense. The court sustained demurrers to the defenses numbered 6, 7, 8, 11 and 12, most of which set up laches as a defense; and then heard the cause on appellants' defenses numbered 1, 2, 3, 4, 5, 9 and 10 and the original petition, as amended. The effect of these defenses was that there was no duty or authority for the County Board to transfer control of the school to the City Board of Education. After hearing the evidence, the court granted the writ ordering the appellants to deliver over to the appellee the supervision, management and control of DeKalb County High School and to deliver to appellee a statement in writing of the indebtedness of the school.
This appeal was taken from the granting of the writ, and all the above-mentioned rulings adverse to appellants were assigned as error.
The petition shows that the City Board of Education requested the County Board of Education to deliver the supervision, management and control of the DeKalb County High School to it and that this request was refused by a resolution passed by the County Board in 1954.
Appellants challenged the alternative writ because in one instance it was addressed to them only as individuals. Every pleading shows that the suit was against the defendants individually and as members of the County Board of Education of DeKalb County. This is the correct procedure. As stated in Williams v. Board of Dental Examiners of Alabama, 222 Ala. 411, 133 So. 11, 12:
"It is the rule in this jurisdiction that a writ of mandamus, civil remedy and a personal action, that must be directed against persons in office, and not alone against the office, board, or commission as such, is to compel the performance of a duty resting upon such person to whom it is sent or directed. [Citing cases.]"
It is also insisted that the alternative writ or rule nisi should have set out the facts showing that the appellants had a duty to turn over the control and management of the school to the appellee. It is true that the petition itself has spent its force once the alternative writ or rule nisi is issued, and that the alternative writ or rule nisi then becomes the pleading to be answered by the respondents in their return. See Hughes v. State ex rel. Brewer, 252 Ala. 202, 40 So. 2d 325; Gainer v. Board of Education of Jefferson County, 250 Ala. 256, 33 So. 2d 880. There is no requirement, however, that all the facts be set out in the alternative writ or rule nisi showing the duty of the respondents to perform the act. The two cases cited, supra, also cited by the appellants, do not so hold. Mandamus is commenced by a petition, and the petition constitutes the first pleading in the case. Kendrick v. State ex rel. Shoemaker, 256 Ala. 206, 54 So. 2d 442.
This is not a suit for the recovery or protection of money or property, or for damages, since title to the property involved is in the state, and therefore the City Board of Education has the power to instigate these proceedings without joining the City as a party. See City Board of Education of Athens v. Williams, 231 Ala. 137, 163 So. 802. This cause is, therefore, *761 not within the terms of Tit. 52, § 161, Code of 1940.
Title 52, § 148, as amended, defines a "city," for educational purposes, as a municipality having a population of 2500 or more inhabitants according to certain censuses, including the Federal census. Ft. Payne's population exceeded 2500 in 1930 and, in 1950, was 6,226 inhabitants.
Title 52, § 158, Code 1940, provides:
The appellants contended that the DeKalb County High School is not a "free public school" within the meaning of § 158, supra, because a matriculation or incidental fee of $4 per year is paid by Junior High School students and $6 per year by Senior High School students. These fees were charged pursuant to Tit. 52, § 437, which allows a board of education to collect matriculation and incidental fees from high school students, which fees were held not to be tuition and not to be in conflict with a statutory requirement that the public school system be free to minors over seven years of age. Bryant v. Whisenant, 167 Ala. 325, 52 So. 525; Roberson v. Oliver, 189 Ala. 82, 66 So. 645; Kennedy v. County Board of Education, 214 Ala. 349, 107 So. 907. It is our considered opinion that the Legislature did not intend, by enacting § 437, to permit the various boards of education to take their schools out of the definition of "free public schools" by the charge of a small matriculation or incidental fee. This is all the more certain because the cited section permitting matriculation and incidental fees in high schools was adopted after the decisions in the cases cited, supra, and contemporaneously with a section expressly stating that the schools shall be free to all children over six years of age. Tit. 52, § 93, Code 1940, repealed Act 201, Acts of Alabama 1955, page 492. We, therefore, hold that the DeKalb County High School is a "free public school" within the meaning of Tit. 52, § 158.
It is insisted that the appellee is barred from obtaining the relief it seeks because of the doctrine of laches; in that, Ft. Payne became a "city" within the meaning of the statute in 1930, and the City Board of Education waited twenty-four years to attempt to obtain control of the DeKalb County High School. In support of this contention, appellants cite Faircloth v. Folmar, 252 Ala. 223, 40 So. 2d 697, and Folmar v. Brantley, 238 Ala. 681, 193 So. 122. Both of these cases quote the following statement from Banks v. Mobley, 4 Ala.App. 510, 513, 58 So. 745, 746, concerning the doctrine of laches as it is applied to mandamus proceedings:
We think the delay in this case has not resulted in the obscuring of any facts, and that the court below properly exercised its discretion in determining that the appellee was not barred by the doctrine of laches. At any rate, there is no abuse of that discretion.
We think mandamus was a proper remedy in this case since the act demanded was nothing more than a ministerial duty of the appellants. Where a clear legal duty is enjoined upon an officer *762 to do a ministerial act, which he refuses to do to the hurt of another, and there is no other adequate remedy provided by law, the aggrieved party may, by proper petition and proof, coerce action by the one in default by mandamus. State ex rel. Holcombe v. Stone, 232 Ala. 16, 166 So. 602; Garrett v. Cuninghame, 211 Ala. 430, 100 So. 845.
There was no reversible error in the proceedings in the circuit court. The judgment is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | March 14, 1957 |
742d38b7-d13c-4cd8-aa9a-f094e36b785d | Baugh v. Maddox | 95 So. 2d 268 | N/A | Alabama | Alabama Supreme Court | 95 So. 2d 268 (1957)
Anthony Eugene BAUGH, pro aml., Rosle Baugh,
v.
Daniel T. MADDOX.
8 Div. 902.
Supreme Court of Alabama.
May 9, 1957.
Clark E. Johnson, Jr., Albertville, for appellant.
Scruggs & Scruggs, Guntersville, for appellee.
MERRILL, Justice.
Appeal from a decree sustaining a demurrer to the original bill of complaint, as amended, for lack of equity, and dismissing the bill because it could not be amended so as to contain equity.
The complainant, suing by his mother as next friend, alleges that he is a minor, born out of wedlock, and that the respondent had been judicially adjudged and ascertained to be his father in a bastardy proceeding in the Circuit Court of Marshall County, and that the sum of $100 per year for ten years, commencing January, 1957, which was adjudged against respondent as a result of the bastardy proceedings, will be totally inadequate for complainant's support, maintenance and education. The bill alleges the inability of the mother and the ability of the respondent to support and maintain the complainant.
The question presented iscan an illegitimate minor child, where his father has been convicted and so adjudged in a bastardy proceeding, require support of his father by proceedings in equity? The trial court answered in the negative and we are compelled to affirm such a result.
There is no legal duty on the part of the father to support a bastard child except as expressly provided by statute. Simmons v. Bull, 21 Ala. 501, 56 Am.Dec. 257; Lewis v. Crowell, 210 Ala. 199, 97 So. 691; Law v. State, 238 Ala. 428, 191 So. 803; Davis v. Davis, 255 Ala. 488, 51 So. 2d 876; Upton v. State, 255 Ala. 594, 52 So. 2d 824.
Under the bastardy statutes, it is the duty of such a father, when so adjudged, to pay up to a maximum of $100 per year for ten years, as was done in the case of respondent. Tit. 6, § 12, Code 1940.
*269 The only other statutes applicable are our desertion and non-support statutes, Tit. 34, §§ 89-104. Under those statutes, § 94, exclusive and original jurisdiction is in the probate courts, except in counties having statutory juvenile or domestic relations courts.
There is no statute which gives equity jurisdiction of matters such as are sought to be here enforced. Davis v. Davis, 255 Ala. 488, 51 So. 2d 876; Simmons v. Bull, 21 Ala. 501, 56 Am.Dec. 257. We might wish that the equity court did have jurisdiction of such matters, but this is a sociological problem which addresses itself to the legislature. We note that the appellant, in the case of Simmons v. Bull, supra, urged much the same argument that is presented by appellant in the instant case. The opinion in that case is applicable here. The court said:
It follows that the decree of the lower court should be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | May 9, 1957 |
c77737d6-94bf-4cbf-ad59-512464457a20 | Armi v. Huckabee | 94 So. 2d 380 | N/A | Alabama | Alabama Supreme Court | 94 So. 2d 380 (1957)
Edgar L. ARMI et al.
v.
Dorothy HUCKABEE.
6 Div. 981.
Supreme Court of Alabama.
March 7, 1957.
Rehearing Denied April 25, 1957.
*381 Jos. S. Mead, Birmingham, for appellants.
Rogers, Howard & Redden, Birmingham, for appellee.
STAKELY, Justice.
This is a suit by a tenant (Dorothy Huckabee) of an apartment house in the City of Birmingham against the owners (man and his wife, Edgar L. and Emota Armi) and their rental agent (Frank B. Clark and Company, a corporation) for damages alleged to have been sustained by her as the result of a fire which burned a portion of the apartment house. The fire was alleged to have been the proximate consequence of negligence of the defendants and their agent in operation of the premises and in the heating equipment therein installed and maintained.
The issues were presented in three counts, Counts III, V and IX. In substance, omitting the allegations as to damages, Count III alleges that on the 14th day of November 1952 the defendants owned, operated or controlled an apartment building known as the Cordelle Apartments located on to wit 1415 13th Street South and to wit 1418 13th Place South in the City of Birmingham, Jefferson County, Alabama. *382 It was further alleged that the defendants owned or controlled the heating system in said apartment building for a long time prior to the 14th day of November 1952 and that the defendants owned or operated such heating system for the furnishing of heat and hot water to tenants of said apartment building. It was further alleged that the defendants did on to wit the 14th day of November 1952 negligently operate said heating system and as a proximate consequence of such negligence the apartment building caught fire and burned and plaintiff was greatly injured and damaged in this: * * *.
Count V varies somewhat from Count III in that its allegations show that the defendants had agreed prior to and on said date (the 14th day of November 1952) to furnish heat and hot water to the plaintiff and to operate the apparatus used in the furnishing of heat and hot water to the plaintiff in a reasonably safe manner. It was further alleged that the defendants on said date negligently failed to operate the apparatus used in furnishing heat and hot water in a reasonably safe manner and it was further alleged that as a proximate consequence of said negligence great quantities of smoke and heat entered said building and the apartment of the plaintiff in said building and the plaintiff was greatly injured and damaged in this: * * *.
Count IX varies from Counts III and V in that it alleges that on said date (the 14th day of November 1952), the defendants controlled and maintained an area on a lower level of said building where was located the apparatus for the furnishing of heat and hot water to the tenants of said building, which the defendants had agreed to furnish plaintiff. It was further alleged that on said date, the defendants had negligently allowed said area to become in an unsafe condition in that defendants had negligently allowed great quantities of rubbish and combustible material to accumulate near and about said heating apparatus and as a proximate consequence of said negligence said rubbish and combustible material caught fire and the plaintiff was injured and damaged in this: * * *.
Demurrers which were filed separately and severally to the foregoing counts were overruled and thereupon the defendants filed a plea in short by consent, the general issue with leave to give in evidence any matter which if well pleaded would be admissible in defense of the action to have effect as if well pleaded.
One of the defenses interposed by the defendants to the foregoing counts and under the plea in short by consent was based upon a written lease entered into between the appellants Armi and their agent Frank B. Clark and Company, a corporation, on the one hand and the appellee on the other. We set out the pertinent portions of this lease as follows:
At the conclusion of the evidence the defendants asked written charges, some of which were given and some refused.
The issues were submitted to the jury and there was a verdict and judgment in favor of the plaintiff and against the defendants for $4,500. Motion for a new trial was filed and overruled by the court. Thereupon this appeal followed.
I. At the time this action was commenced and at the time the apartment was leased to appellee, Mr. and Mrs. Armi were residents of California and domiciled there and service was sought to be had on them by service upon the Secretary of State of Alabama under an act appearing in the General Acts of Alabama of 1953, p. 347 and set forth in the Pocket Part of the Code of 1940, Title 7, as § 199(1). Affidavit was made by the attorney for the appellee that the cause arose "from the doing of business" by the Armis in Jefferson County by the ownership and leasing of the apartment to appellee and that the Armis were residents of California. Thereafter service was sought to be had pursuant to the provisions of the aforesaid act. The Armis (appellants) filed separate motions to quash the service based upon the claim that they were not doing business in Jefferson County by owning and leasing the apartment in such sort as to subject them to the service of process attempted to be had under the aforesaid act. Under a stipulation it was agreed that Edgar L. Armi and Emota D. Armi owned an apartment building containing twenty units known as the Cordelle Apartments, also an apartment consisting of twelve units known as the Belle Clair Apartments and also the Warwick Manor Apartments consisting of twelve units, all located in Birmingham, Alabama, and all rented to the public by Frank B. Clark and Company, a corporation, as rental agent.
There is no merit in the motion to quash the service upon the Secretary of State. In construing § 199, Title 7, Code of 1940, this court has held it to be a valid exercise of power by a state because of its right to regulate the use of its highways by nonresidents, to declare that the use of the highway by the nonresident, without procuring a license, may by statute be treated as the equivalent of the appointment by him of the secretary of state as an agent upon whom process in such a case may be served. Ray v. Richardson, 250 Ala. 705, 36 So. 2d 89; Peters v. Tuell Dairy Co., 250 Ala. 600, 35 So. 2d 344. See Wuchter v. Pizzutti, 276 U.S. 13, 48 S. Ct. 259, 72 L. Ed. 466, 57 A.L.R. 1230, 1239. The principle which we have stated as being applicable to § 199, Title 7, Code of 1940, is equally applicable to the aforesaid act which appears as § 199(1), Title 7, Pocket Part of the Code of 1940.
The ownership and operation of apartment buildings for the rents and profits accruing therefrom is a business and we think that when a nonresident undertakes to operate apartment houses with a considerable number of apartment units therein, as in this case, such a business in the State of Alabama, is amenable to the public policy of the state as set forth in the General Acts of Alabama of 1953, p. 437 and set forth in the Pocket Part of the Code of 1940, Title 7, as § 199(1), which provide *384 for substituted service. Miller v. Swann, 176 Misc. 607, 28 N.Y.S.2d 247.
II. By various assignments of error it is seriously insisted by the appellants that they were entitled to the affirmative charge. The basis for this contention has two aspects. In accordance with the brief of counsel we shall first consider the contention that the lease contained a release of liability for the negligent conduct which is made the basis of the action. At the outset we call attention to the fact that this is a suit for alleged personal injuries alleged to be the result of negligent conduct and not a suit for the loss of personal property alleged to be the result of negligent conduct. In this connection two paragraphs of the lease, Sections 10 and 12, which we have heretofore set out, must be carefully analyzed. Paragraph 10 is designated "Services" and paragraph 12 is designated "Storage." We want to make it clear that these words should not be given greater import than as a help in locating the subject-matter in the lease. This court has oftentimes held that the construction of a contract cannot be governed by the name by which it is called. Steele v. State, 159 Ala. 9, 48 So. 673; D. M. Ferry & Co. v. Hall, 188 Ala. 178, 66 So. 104, L.R.A.1917B, 620. However, upon a careful consideration of paragraph 10 as a whole, we think that it deals entirely with the stoppage or failure of certain specified services, defects in the building, appliances and appurtenances or "for damages from wind, rain or other cause whatsoever." It does not seem to us that in this paragraph it is intended to provide that the defendants are exonerated from liability for personal injuries resulting from negligent conduct. Cairnes v. Hillman Drug Co., 214 Ala. 545, 108 So. 362.
Paragraph 12 appears to us to relate entirely to the risk of the lessee in storing or placing personal property in the premises. This paragraph undertakes to exonerate the lessors or their agents from liability for any loss or damage to such property as the result of any act, negligence or conduct of any person. There is no mention in this paragraph of damages for personal injuries.
The appellants insist, however, that the case of Life & Casualty Insurance Co. of Tennessee v. Porterfield, 239 Ala. 148, 194 So. 173, 175, is an authority against the position which we have here taken. We do not agree. The case at bar does not involve a claim for damages for the loss of personal property and this factor was the basis of the decision in the Porterfield case, when it was decided that the words "any person whomsoever" included the landlord and his agent or servants. It is true that in the Porterfield case the complaint listed some items of damage for personal injuries, but this does not appear to us to bear upon the decision of the court in that case and was certainly not the subject of any discussion or comment by the court. From the opinion the court regarded the case in reaching its decision as one seeking a recovery for loss of personal property and found that Count D of the complaint was predicated upon a defective heating system, one of the expressly exempted matters covered in what is paragraph 10 of the lease in the case at bar. The court further found that Count A of the complaint proceeds upon the theory that the cause of the fire was due to the negligent operation of the heating system by the defendant's servants or employees. The court said that these matters were within the provisions of the lease, which appear as paragraph 12, storage, in the case now under consideration. The Porterfield case holds that the contract in that case should be strictly construed in favor of the tenant, which does not mean, however, that its plain words should be rejected. To summarize, we do not consider that the Porterfield case supports the appellants' contention that the general charge should have been given by the court by reason of the exculpatory clauses contained in the lease here under consideration.
*385 Considering now the second aspect relating to the assignments of error under discussion, it is clear in the light of the scintilla rule, coupled with the jury's duty to determine the truth from the evidence given before them, that the issues of fact under each count of the complaint were properly submitted to the jury for determination. For example, tendencies of the evidence show that the basement area was about 30 feet wide and 35 feet long. There may have been some variation in the testimony in this regard. Considering this physical layout, based upon the minimum area, which the jury would be free to find, tendencies of the evidence showed that along one end of this basement area were bins or compartments about six feet in depth and on the opposite end of the basement was the boiler about two feet from the west wall and extending about ten feet in length. This would leave an open area of approximately seventeen feet between the boiler or furnace and the bins on the opposite side. The testimony of the Captain of the Fire Department tended to show that located within this area he found several truck loads of materials which he considered to constitute a fire hazard. Also, according to the testimony of the janitor, Sharp Prater, he, the janitor, piled the ashes or coals along the wall as he cleaned out the furnace in the process of firing. The Captain of the Fire Department gave notice for the hazardous condition to be cleaned up. This inspection to which we have referred was about ten days prior to the fire. There is no testimony that this was done. In fact, the only affirmative testimony was by the janitor to the effect that he did not remove anything from the basement. There was some conflict in the testimony in this regard but, of course, the jury were free to reconcile such conflicts in the evidence.
Tendencies of the evidence negative the possibility of fire originating in the wiring or electrical apparatus or from ignition of any natural gas. We think the evidence shows that the fire was well under way before any electrical failure occurred or before any break in the gas line in the basement. To the contrary, there was testimony that the break in the gas lines occurred after the fire department arrived and there was testimony that the electrical failures occurred after the building had filled substantially with heat and smoke. It seems to us that in this situation the jury was free to make the finding that the materials constituting the fire hazard were still in the basement at the time of the fire and this combined with the shoveling of the hot ashes from the fire box along the wall in this area was a basis for the jury to conclude that these factors combined to produce the fire which without question resulted in the plaintiff's injury and damage.
III. The appellant urges that the court was in error in overruling the motion to set aside the verdict on the ground of excessiveness. We do not agree with this contention. The testimony shows that Mrs. Huckabee was trapped in her apartment by reason of heat and smoke generated by the fire. In fact it was necessary for her to be taken out of her apartment through a window in her apartment on a ladder placed against the wall by a fireman. The testimony tends to show that as a result of exposure to the smoke and heat she has suffered since the time of the fire with acute bronchitis and has become highly nervous. The bronchitis is accompanied with pain and coughing together with itching of the skin. Tendencies of the evidence also show that her bronchitis has become chronic. On one or two occasions while she was testifying she broke down and cried and the court was forced to suspend proceedings until she could regain her composure. There was a motion for mistrial on account of this situation which the court overruled, which, of course, was a matter within the discretion of the court. As stated the court overruled the motion to set aside the verdict as being excessive and this court has held that this court will not disturb a verdict on the ground of excessiveness where the trial court has refused to disturb the verdict, unless it is so excessive as to indicate passion, *386 prejudice, corruption or mistake. Montgomery City Lines, Inc., v. Davis, 261 Ala. 491, 74 So. 2d 923. And this court has further held that the correctness of a jury's verdict is strengthened when the presiding judge refuses to grant a new trial. Simpson v. Birmingham Electric Co., 261 Ala. 599, 75 So. 2d 111; Gulf, Mobile & Ohio R. Co. v. Sims, 260 Ala. 258, 69 So. 2d 449. We do not feel authorized to set the verdict aside, especially in the face of the refusal of the trial court to do so after he heard the evidence and saw the plaintiff before him. Central of Georgia Ry. Co. v. White, 175 Ala. 60, 56 So. 574; Louisville & Nashville R. Co. v. Tucker, 262 Ala. 570, 80 So. 2d 288.
It is our conclusion that there is no error in the record and the judgment of the lower court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | March 7, 1957 |
706c87b4-7163-4a9a-9ced-97451a83ab83 | McGraw v. Thomason | 93 So. 2d 741 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 741 (1957)
Charles R. McGRAW
v.
Bert THOMASON.
7 Div. 338.
Supreme Court of Alabama.
March 14, 1957.
*742 Copeland & Copeland, Gadsden, for appellant.
Starnes & Holladay, Pell City, for appellee.
MERRILL, Justice.
Appellant, Charles McGraw, sued appellee, Thomason, seeking damages for libel. His wife, Hazel McGraw, sued by identical complaint in another case which is here as 7 Div. 339, Ala., 93 So. 2d 745. Demurrers to the complaints were sustained three different times, but were overruled as to Count Four, the result of the last amendment.
The cases were tried together, and when appellants rested, appellee also rested and asked for the general affirmative charge with hypothesis in each case. The court granted the motion and gave the requested written charge. The verdicts were for the defendant in compliance with the charge and each plaintiff appealed.
McGraw and Thomason owned adjoining lots on the same side of U. S. Highway No. 11 in St. Clair County. McGraw had a filling station on his lot. Thomason had a small shop on his lot nearest the McGraw line and his dwelling was a few feet from the shop. On October 11, 1950, Thomason erected a sign parallel to the highway, near the point where the McGraw-Thomason property line intersected the highway right-of-way on which was printed the following:
The sign remained there for several months; it was then taken down and attached to the front side of the shop building on Thomason's lot, just under the windows of the shop and still parallel to the highway. The sign was finally removed in July, 1952.
The tendencies of the evidence were that the sign was clearly visible from the highway and appellant's place of business, that after the erection of the signs, appellant's business took an immediate drop to approximately fifty per cent of the volume done previously, and after the removal of the signs, appellant's business showed an increase. There was evidence that some persons would drive into appellant's parking area, start to leave their car, see this and other signs and leave without entering appellant's place of business.
Two witnesses who lived in the neighborhood and one salesman testified, over objection, that to them the sign meant that Charles or Hazel McGraw had been trespassing on the property of appellee. It was undisputed that the McGraws had not trespassed on the property and they had no employees.
The only assignment of error complains of the trial court's action in giving the general affirmative charge with hypothesis for the defendant.
In actions for libel, the complaint must allege that the words were "falsely and maliciously" published. Harrison v. Burger, 212 Ala. 670, 103 So. 842; Ripps v. Herrington, 241 Ala. 209, 1 So. 2d 899; Tit. 7, § 223, Form 17, Code of 1940. Where the publication is libelous per se, the law presumes it to be false and, therefore, prompted by malice. Ripps v. Herrington, *743 supra. But where the publication is not libelous per se but only per quod, malice is not implied in law but must be shown. 33 Am.Jur., Libel and Slander, § 266. Here, the words on the sign are certainly not libelous per se and there was no proof that the words were "falsely and maliciously" published and no presumption can be indulged in from the use of the words on the sign and the innuendo. "If the language is not actionable per se, and is not capable of the meaning ascribed by the innuendo or of being understood in a defamatory sense, there is not question for the jury." 53 C.J.S., Libel and Slander, § 223, p. 339. "If the judge, taking into account the manner and the occasion of the publication and all other facts which are properly in evidence, is not satisfied that the words are capable of the meaning ascribed to them, then it is not his duty to leave the question raised by the innuendo to the jury." Gatley, Law and Practice of Libel and Slander in a Civil Action, page 128. The trial court was justified in giving the requested charge.
It is our opinion that the trial court should have sustained the demurrer to Count Four on the specified ground that the count did not state a cause of action. The complaint, consisting only of Count Four, reads:
As already stated, the words on the sign are not libelous per se. They do not impute the commission of an indictable offense either past or presently. Our statute requires that a person must have been warned not to trespass within six months preceding the trespass before he can be prosecuted for such trespass. Tit. 14, § 426, Code 1940. The appellee had a right to warn appellant not to trespass on his property irrespective of whether appellant had previously done so.
The appellant evidently realized that the words were not libelous per se and to aid his pleading, he was forced to resort to innuendo. In Meadors v. Haralson, 226 Ala. 413, 147 So. 184, 185, we said:
It was for the court to decide whether the words on the sign were capable of the meaning ascribed to them by the innuendo. The words do not support the pleader's deduction and, therefore, Count Four did not state a cause of action. Penry v. Dozier, 161 Ala. 292, 50 So. 909, and Hendrix v. Mobile Register, 202 Ala. 616, 81 So. 558. For a general discussion of our cases on libel, see Tidmore v. Mills, 33 Ala.App. 243, 32 So. 2d 769; certiorari denied 249 Ala. 648, 32 So. 2d 782, and Albert Miller & Co. v. Corte, 5 Cir., 107 F.2d 432.
The definitions of libel, as found in the cases, vary somewhat in phraseology, and are more or less comprehensive, as may be called for by the particular charge involved in the case. Generally, any false and malicious publication, when expressed in printing or writing, or by signs or pictures, is a libel, which charges an offense punishable by indictment, or which tends to bring an individual into public hatred, contempt, or ridicule, or charges an act odious and disgraceful in society. This general definition may be said to include whatever tends to injure the character of an individual, blacken his reputation, or imputes fraud, dishonesty, or other moral turpitude, or reflects shame, or tends to put him without the pale of social intercourse. White v. Birmingham Post Co., 233 Ala. 547, 172 So. 649; Marion v. Davis, 217 Ala. 16, 114 So. 357, 55 A.L.R. 171, and Iron Age Publishing Co. v. Crudup, 85 Ala. 519, 5 So. 332.
In determining their actionable character, the printed words are to be taken in their natural meaning, and according to the sense in which they appear to have been used and the idea they are adapted to convey to those who read them. A forced construction is not to be put upon them in order to relieve the defendant from liability, nor are they to be subjected to the critical analysis of a trained legal mind, but must be construed and determined by the natural and probable effect on the mind of the average lay reader. White v. Birmingham Post Co., supra.
Applying these principles to the alleged libelous words, we can find nothing in them which tends to bring appellant within the general definition quoted, supra. While the words on the sign are not exactly a neighborly gesture nor calculated to win friends, they are not libelous and the attempted innuendo did not make them so. It follows that the appellant was not entitled to recover.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | March 14, 1957 |
bf765c6c-bb18-4075-97c5-66198f5a0964 | Spradlin v. Birmingham Airport Authority | 613 So. 2d 347 | 1911275 | Alabama | Alabama Supreme Court | 613 So. 2d 347 (1993)
David SPRADLIN
v.
BIRMINGHAM AIRPORT AUTHORITY.
1911275.
Supreme Court of Alabama.
January 29, 1993.
*348 David Spradlin, pro se.
Frank D. McPhillips, David M. Smith and Mark Strength of Maynard, Cooper, Frierson & Gale, P.C., Birmingham, for appellee.
KENNEDY, Justice.
The plaintiff, David Spradlin, appeals from a denial of his application for a preliminary injunction against the Birmingham Airport Authority.
The appellant fails to cite any authority in support of his arguments concerning the injunctive relief. "Where an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court's duty nor its function to perform all the legal research for an appellant. Rule 28(a)(5), Ala.R.App.P.; Henderson v. Alabama A & M Univ., 483 So. 2d 392 (Ala.1986)." Sea Calm Shipping Co., S.A. v. Cooks, 565 So. 2d 212, 216 (Ala.1990).
AFFIRMED.
HORNSBY, C.J., and SHORES and HOUSTON, JJ., concur.
MADDOX, J., concurs in the result. | January 29, 1993 |
8a53d3bd-4a8d-474a-b155-31247a241ff3 | Garrett v. ESCAMBIA CTY. HOSP. BD. | 94 So. 2d 762 | N/A | Alabama | Alabama Supreme Court | 94 So. 2d 762 (1957)
Farris GARRETT
v.
ESCAMBIA COUNTY HOSPITAL BOARD.
3 Div. 788.
Supreme Court of Alabama.
March 14, 1957.
Rehearing Denied May 9, 1957.
Windell C. Owens, Monroeville, for appellant.
Brooks & Garrett, Brewton, for appellee.
LAWSON, Justice.
This suit was brought in the circuit court of Escambia County by Farris Garrett against Escambia County Hospital Board and a physician-surgeon to recover for personal injuries alleged to have been sustained by the plaintiff while a patient in the D. W. McMillan Memorial Hospital operated by the defendant Board in Escambia County. The complaint alleged in substance that the hospital and the physiciansurgeon undertook "for hire and reward" the medical and surgical care of the plaintiff while a patient in the hospital; that the defendants "so negligently, carelessly and unskillfully conducted themselves in that regard that as a proximate consequence thereof plaintiff was greatly injured in her person, etc."
The appeal to this court is by the plaintiff below from a judgment of nonsuit *763 which she requested after the trial court "ordered, adjudged and decreed that the plaintiff's demurrers to the plea of the defendant, Escambia County Hospital Board, be and the same are hereby overruled."
We will treat the appeal, as do the parties thereto, as presenting to this court the single question, Is a public hospital corporation organized and operated under the provisions of Act 46, Acts of 1949, Regular Session, p. 68, which corporation has been designated by the county governing body as the agency of the county to acquire, construct, equip, operate and maintain public hospital facilities as provided by Act 640, Acts 1949, Regular Session, p. 981, immune from suit by a pay patient to recover damages for personal injuries alleged to have been sustained as a proximate result of the negligence of the corporation's agents or servants? The provisions of Act 46, supra, have been designated in the 1955 Pocket Part to Vol. 5 of the 1940 Code as Title 22, §§ 204(18)-204 (30), and the provisions of Act 640, supra, have been designated in the same "Pocket Part" as Title 22, §§ 204(31)-204(41).
The rule is firmly established in this state that where a county, in accordance with express legislative authority, operates a hospital where its needy may receive care and medical attention, it is performing a governmental duty and, hence, as an arm of the state it is immune from suit by indigent or pay patients for the negligence of its officers or employees unless the act authorizing and empowering the county to operate the hospital expressly makes the county subject to suit for the torts of the officers, agents or servants entrusted with the operation and management of the hospital. Moore v. Walker County, 236 Ala. 688, 185 So. 175; Laney v. Jefferson County, 249 Ala. 612, 32 So. 2d 542. The general provision that a county is a body corporate with power to sue and be sued does not deprive a county of the immunity from suit based on negligence so long as it is engaged in governmental functions. Laney v. Jefferson County, supra. See White v. Alabama Insane Hospital, 138 Ala. 479, 35 So. 454; Shaffer v. Monongalia General Hospital, 135 W.Va. 163, 62 S.E.2d 795; 25 A.L.R.2d 224-225.
The foregoing principles apply to a public hospital corporation such as the Escambia County Hospital Board, organized and operated in the manner indicated above. The cases hereafter cited are directly in point if we understand them correctly. Shaffer v. Monongalia General Hospital, supra; Talley v. Northern San Diego County Hospital District, 41 Cal. 2d 33, 257 P.2d 22.
We hold, therefore, that the trial court did not err in overruling the demurrer to the "plea" of the defendant Hospital Board.
Whether the doctrine of sovereign immunity should be modified in this state is a legislative question.
The judgment is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | March 14, 1957 |
56da42a1-844e-4e7f-9bc5-33741a0a2057 | Smith v. Smith | 94 So. 2d 863 | N/A | Alabama | Alabama Supreme Court | 94 So. 2d 863 (1957)
F. H. SMITH et al.
v.
O. B. SMITH et al.
4 Div. 843.
Supreme Court of Alabama.
April 25, 1957.
*864 Sam A. Le Maistre, Eufaula, for appellants.
Crews Johnston, Clayton, for appellees.
LIVINGSTON, Chief Justice.
This appeal is from decrees sustaining the demurrer of Aluminum Company of America and the demurrer of O. B. Smith and Claude Smith to the bill of complaint as amended.
The bill alleges, in substance: That Joseph I. Smith, who died intestate on the 27th day of October, 1950, was the owner of the real estate in controversy, and that the complainants and respondents, with the exception of Aluminum Company of America, are the sole surviving heirs at law of said Joseph I. Smith; that Claude Smith, respondent, was appointed administrator of the estate of Joseph I. Smith by the Probate Court of Barbour County, Alabama; that O. B. Smith, respondent, either alone or in conspiracy with said administrator, effectuated a fraud on the other joint owners, in that he convinced them that the administrator was incompetent and promised to watch over the administration, and further that said realty should be sold at a public sale to pay the debts of the estate; that complainants and respondents agreed that said realty should be sold, but that the mineral rights therein would be reserved to said heirs; that complainants relied on the representations and promises of the respondents, and paid no attention to, and made no appearance at the proceedings instituted in the probate court by the administrator to sell said realty; that the administrator, instead of performing said agreement, offered for sale and sold said property without reserving the mineral rights; and that said O. B. Smith, respondent, purchased said property in his own name and procured a deed without reservation of the mineral rights. It is futher alleged that O. B. Smith, respondent, before and at the time of said sale, was familiar with the lands in question, having lived on and farmed the lands for many years; that at the request of the administrator, who was his brother, O. B. Smith had the timber on said land cruised by one familiar with the value of growing timber and found that the value of merchantable timber was in excess of $3,000, and falsely reported to the administrator, who relied on said report and made no independent investigation, that the value of merchantable timber was about $700; that the debts of the estate of Joseph I. Smith, deceased, amounted to only $783.39, and that the sale. *865 of timber alone would have brought more than enough money to pay the debts of said estate. It is further alleged that O. B. Smith, after purchasing said land, entered into a contract with Aluminum Company of America, a corporation, giving said company the right to remove bauxite from under said lands in consideration for said company paying to him a certain sum of money as royalties for all bauxite removed from said lands. It is further averred that complainants did not discover the fraud or breach of trust until a time when all rights of review from said order of sale had expired.
The complainants pray that a temporary injunction be issued restraining Aluminum Company of America from paying any further royalties to O. B. Smith in consideration for said bauxite until the rights and interests of the parties have been determined; and that upon a final hearing, the conveyance to O. B. Smith be set aside and held for naught, or, in the alternative, that the administrator's deed be reformed so as to give effect to the agreement of the parties. There was also a prayer for general relief and an offer to refund the purchase price.
The Aluminum Company of America demurred "to the Bill of Complaint * * * as amended, and to each and every paragraph thereof, separately and severally." O. B. and Claude Smith demurred to "the bill of complaint as amended, generally, and in each of its several aspects." This court has repeatedly held that such demurrers are demurrers to the bill as a whole. Thompson v. Hanna, 262 Ala. 467, 80 So. 2d 267; First Nat. Bank of Birmingham v. Bonner, 243 Ala. 597, 11 So. 2d 348. And the ruling of the lower court in sustaining the demurrers must be reversed if any aspect is good. Tyler v. Copham, 245 Ala. 151, 16 So. 2d 316.
The bill alleges that the complainants and respondents were the only heirs of Joseph I. Smith, deceased, and that the realty descended to them as joint owners.
Tenants in common are in a confidential relationship to each other by operation of law as to the joint property. Caldwell v. Caldwell, 173 Ala. 216, 55 So. 515; 14 Am.Jur. 78; Annotations, 6 A.L. R. 297; 54 A.L.R. 874; 85 A.L.R. 1535; 19 L.R.A.,N.S., 591. And a cotenant cannot buy an outstanding adversary claim to the common estate and assert it for his exclusive benefit to the injury or prejudice of his co-owners. Randolph v. Vails, 180 Ala. 82, 60 So. 159; Draper v. Sewell, 263 Ala. 250, 82 So. 2d 303, and authorities cited therein. However, this rule does not prevent one heir from purchasing the entire estate at an administrator's sale for the purpose of subjecting the land to the payment of the debts of the decedent. In re Reynold's Estate, 239 Pa. 314, 86 A. 858; Clapper v. Powers, 222 Miss. 878, 77 So. 2d 808; Sewell v. Reed, 189 Ark. 50, 71 S.W.2d 191; 14 Am.Jur. 126. In Aubuchon v. Aubuchon, 133 Mo. 260, 265, 34 S.W. 569, 570, Justice MacFarlane stated:
In Phillips v. Phillips, 224 Ala. 321, 140 So. 434, this court held that at a sale for division a tenant in common had the right to become the purchaser and acquire title to the entire tract. See also Caldwell v. Caldwell, supra.
The jurisdiction of the probate, court to order a sale of a decedent's lands for the payment of debts is statutory, special, and limited. Robertson v. Bradford, 70 Ala. 385; Hall v. Chapman's Adm'rs, 35 Ala. 553. And the right of an administrator to sell lands to pay debts of his intestate is wholly statutory, and he alone can do so on the conditions and in the manner prescribed by the statutes. Austin v. Eyster, 242 Ala. 402, 6 So. 2d 892; Ex parte Stephens, 233 Ala. 167, 170 So. 771; Kirkbride v. Kelly, 167 Ala. 570, 52 So. 660.
Sections 242-276, Title 61, Code of 1940, outline the procedure to be followed in order to perfect a sale of a decedent's realty for payment of debts or division. Section 253, Title 61, Code of 1940, provides:
In construing a similar statute, the Supreme Court of Michigan in Oberstein v. Oswalt, 47 Mich. 254, 10 N.W. 360, 361, stated:
See also Hewitt v. Durant, 78 Mich. 186, 44 N.W. 318; Daley's Appeal, 47 Mich. 443, 11 N.W. 262.
In Pelletreau v. Smith, 30 Barb., N.Y., 494, it was stated:
"* * * This, however, is not a proceeding where the various estates *867 and interests which might be carved out of the entire fee can be recognized and adjusted upon equitable principles. The authority of the surrogate is derived solely from the statute concerning the powers and duties of executors and administrators, in relation to the sale and disposition of the real estate of their testator or intestate, and its directions must be rigorously observed. His authority is limited to making an order or decree to mortgage, lease or sell so much of the real estate of the testator or intestate as shall be necessary to pay his debts. It is the real estate of the deceased which is to be leased, mortgaged or sold, and not any particular estate (such as an estate for years, for life, or in remainder) therein which he may have devised to another, that is to be sold. The act is not susceptible of execution upon any theory short of a mortgage, lease or sale of the entire estate of the testator at the time of his death. * * *"
However, other jurisdictions have construed similar statutes as allowing the judge of probate to sell particular estates or interests, less than the whole, which the deceased had in the property at the time of his death. See City National Bank v. City of Bridgeport, 109 Conn. 529, 147 A. 181.
In construing a statute, every word and each section thereof must be given effect, if possible, and construed with other sections in pari materia. Ex parte Darnell, 262 Ala. 71, 76 So. 2d 770; City of Montgomery v. Smith, 205 Ala. 557, 88 So. 671.
Section 268, Title 61, Code of 1940, provides:
If Section 253, supra, were interpreted as meaning that the probate court could authorize the sale of any interest in the deceased's realty in order to pay the debts of the estate, such interpretation would in effect make Sec. 268 an otiosity. Therefore, it is evident that the legislature intended to empower the judge of probate to sell a part or parcel of the realty of a decedent's estate when the debts owed by the estate were not enough to require the sale of all the realty owned by the deceased at the time of his death, but the judge of probate could only authorize the sale of the entire interest which the decedent had in that part or parcel to be sold.
In 34 C.J.S. Executors and Administrators § 553, p. 502, it is stated:
Boiling v. Jones, 67 Ala. 508; Austin v. Willis, 90 Ala. 421, 8 So. 94; and Johnson. v. Porterfield, 150 Ala. 532, 43 So. 228, *868 cited by appellants, in no way conflict with this construction.
In an administrator's sale of deceased's lands to pay the debts of his intestate, the court is the vendor. Kennedy v. Parks, 217 Ala. 323, 116 So. 161; Denman v. Payne, 152 Ala. 342, 44 So. 635. The probate court was without statutory authority to sell the lands reserving the mineral interest to the heirs.
We have determined that O. B. Smith had the right to purchase said land. The bill alleges the existence of debts of the estate, and for aught appearing there was not sufficient personalty to pay said debts. When there are debts of an estate and the personalty is insufficient to satisfy said debts, it is mandatory that the administrator sell the lands of the estate to pay said debts. Boyte v. Perkins, 211 Ala. 130, 99 So. 652. And, further, for aught that appears in the bill of complaint, the purchase price paid by O. B. Smith for the land in controversy was adequate, and the complainants received shares of the purchase price equal to the value of their entire interests in said lands, less the amount of the debts owed by the estate of the intestate. Hence, there was no averment in the bill which shows that the complainants were or will be injured by the alleged misconduct of respondent, O. B. Smith. In equity, as at law, with the exception of special cases in some jurisdictions, fraud will not be relieved against unless it is shown that injury resulted or will result to the complainants as a consequence of said fraud. Kelly v. McGrath, 70 Ala. 75, 45 Am.Rep. 75; Meeks v. Garner, 93 Ala. 17, 8 So. 378, 11 L.R.A. 196; Van Antwerp v. Van Antwerp, 242 Ala. 92, 5 So. 2d 73; Gray v. Gray, 246 Ala. 627, 22 So. 2d 21; Smith, Fraud, § 287, p. 308; 23 Amjur. 985. And for like reasons, the fact that O. B. Smith falsely reported to the administrator the value of merchantable timber on said lands does not give the bill equity.
The trial court did not err in sustaining the demurrers to the bill of complaint and the cause is due to be, and is, affirmed.
Affirmed.
SIMPSON, GOODWYN and COLEMAN, JJ., concur. | April 25, 1957 |
9a952b7c-3087-43b7-9f1c-de070a348e06 | Chappelle v. State | 99 So. 2d 431 | N/A | Alabama | Alabama Supreme Court | 99 So. 2d 431 (1957)
Mary CHAPPELLE
v.
STATE of Alabama.
6 Div. 135.
Supreme Court of Alabama.
December 19, 1957.
*433 Arthur Parker, Birmingham, for appellant.
John Patterson, Atty. Gen., Edmon L. Rinehart, Asst. Atty. Gen., for the State.
STAKELY, Justice.
This is an appeal from the Circuit Court of the Tenth Judicial Circuit of Alabama. The defendant, Mary Chappelle, was indicted for murder in the first degree. Upon a plea of not guilty, trial was had and the jury returned a verdict of guilty of murder in the second degree, fixing her punishment at 30 years in the penitentiary. The defendant did not file brief in this court, but that is not essential to our consideration of an appeal in a criminal case. Walker v. State, 265 Ala. 233, 90 So. 2d 221; Johnson v. State, 257 Ala. 644, 60 So. 2d 818.
Right of appeal in a criminal case is one of substance and § 389, Title 15, Code of 1940, imposes upon the court a duty to search the record for errors. Walker v. State, supra, citing Wesson v. State, 238 Ala. 399, 191 So. 249; Payne v. State, 261 Ala. 397, 74 So. 2d 630.
From the defendant's motion for a new trial arises the question of the sufficiency of the evidence to sustain the verdict of the jury. The record discloses the following: On the night of October 27, 1956, the defendant, Mary Chappelle, escorted by one Jimmie Dee Shine, also known as Slim, went to a honky tonk in the vicinity of Blue Creek, Jefferson County, Alabama. The exact time of their arrival is uncertain and there is dispute in the testimony as to their course of conduct after their arrival. However, there was testimony that upon reaching the establishment of Oliver Wells and Emma Lee Forney, Slim shook hands with certain men and women present; and upon his shaking the hands of the women, the defendant produced a knife and laid it along Slim's neck, calling him "sneaky." There was also question as to whether the defendant engaged in argument with persons other than Slim. The witnesses agreed that Slim Shine and Mary Chappelle had some argument in Oliver Wells' kitchen; that she produced a long knife; that Oliver Wells stepped between the defendant and Shine, and that thereafter she reached around Wells and stabbed Shine once in the chest. There is no testimony, except that of the defendant herself, that Shine made any threatening moves at the time he was stabbed.
The defendant's nephew testified that he had seen and heard the deceased mistreat and threaten the defendant on the evening of the stabbing. He also testified that the deceased usually carried a knife on his person.
The defendant's version of the stabbing varies somewhat from that of the other witnesses present. She testified that the deceased Shine who lived in a small house behind the house which the defendant occupied, but he occasionally occupied her house for the night, had threatened and physically abused her when she expressed an unwillingness to accompany him to Oliver Wells' establishment. She further testified that when they arrived at Wells' place, she knew none of the people and said she wanted to leave; that Shine attempted to ply her with liquor and for some purpose took her to a private room where there was a couch and a bed. She repulsed his advances, and not liking the other company present, attempted to leave and persuade her companion to do likewise so that he would drive her car. They argued. He threw her on the floor in the front room where the juke box was playing, pulled her into the kitchen and threatened her. She, in fear, seized a knife from the kitchen table and hit him with it, dropped it on the table and left, not knowing that she had killed the deceased.
After careful examination of the evidence, we are of the opinion that it was sufficient to sustain the verdict of the jury. *434 No witness but the defendant testified to menacing gestures, words or actions on the part of the deceased at the time of the stabbing which might support her claim of self defense. All the witnesses to the stabbing, save the defendant, testified that Oliver Wells, the houseman, was standing between the deceased and the defendant at the time of the stabbing and that the deceased was standing still at the time, thus tending to contradict the claim of the defendant that the deceased drew a switch-blade knife and came toward her.
The jury viewed the witnesses and heard their testimony. They were entitled to weigh the testimony and determine the questions of fact surrounding the killing. Sufficient evidence was presented to support the findings of the jury. We are further unable to find that such verdict is indicative of prejudice, bias or other improper motive. Miles v. State, 257 Ala. 450, 59 So. 2d 676; Sims v. State, 31 Ala.App. 247, 14 So. 2d 742.
Nor did the court err in admitting Exhibit No. 3 for the State, a photograph of the body of the deceased showing his wound as well as his face. McKee v. State, 253 Ala. 235, 44 So. 2d 781; Hines v. State, 260 Ala. 668, 72 So. 2d 296.
The court properly allowed Oliver Wells to testify as to whether the deceased or the defendant appeared mad just prior to the fatal stabbing. Long v. Seigel, 177 Ala. 338, 58 So. 380; Daniell v. State, 37 Ala.App. 559, 73 So. 2d 370.
Nor did the court err in refusing to allow impeachment of witness Oliver Wells because of a prior conviction of assault and battery with a weapon. Such offense under § 34, Title 14, Code of 1940, is a misdemeanor. A conviction for assault and battery is not proper subject for impeachment of a witness as it is not considered an offense involving moral turpitude per se. Johnson v. State, 15 Ala.App. 298, 73 So. 210, certiorari denied Ex Parte Johnson, 198 Ala. 692, 73 So. 1000. The crime of assault and battery with a weapon is of the same nature and a conviction for such offense is not proper subject for impeachment, since it does not involve moral turpitude per se.
The court properly sustained the State's objection to testimony by the defendant of details of former threats and difficulties between the deceased and the defendant. The fact of the existence of former recent difficulties and threats between the deceased and the defendant is admissible after some evidence in support of a claim of self defense has been presented. However, the details of such difficulties were properly excluded. Wright v. State, 252 Ala. 46, 39 So. 2d 395; Alabama Digest, Homicide.
The appellant, upon motion for new trial, complains that the separation of juror A. E. Kelso for a portion of time, estimated at from thirty seconds to one and one-half minutes, constituted reversible error or ground for mistrial on motion by the defendant. The record shows by the unrebutted testimony of juror Kelso, in the proceedings on motion for new trial, that no one spoke to Kelso and that he spoke to no one during the brief separation, except for the bailiff who came to fetch him from the rest room. The affidavits of the attorney for the defendant and of Carlie Jones, defendant's sister, merely stated that in the corridor numerous people were milling about, including some state witnesses, and that Kelso passed in close proximity to them on his way back to the court room.
When a separation of the jury occurs, without the consent of the defendant, during the course of a prosecution for murder, upon proper motion by the defense for mistrial or a new trial, the burden is upon the state to show clearly that no injury resulted from the separation. Section 97(1), Title 30, Code of 1940; Nelson v. State, 253 Ala. 246, 43 So. 2d 892; Wright v. State, 38 Ala.App. 64, 79 So. 2d 66, certiorari denied 262 Ala. 420, 79 So. 2d 74. *435 This burden was clearly met in the present case, in that no communication between juror Kelso and persons other than the bailiff transpired. The same situation was presented in Duke v. State, 257 Ala. 339, 58 So. 2d 764, where a juror remained in the lavatory for one minute after the other eleven jurors had returned to the court room. The juror returned in the company of a deputy sheriff who testified that the juror spoke to no one and that no one spoke to him. The court said in this case that such separation, although putting the burden of proof on the state to show clearly that the juror was not subject to contacts or influences, the state clearly met such burden and overcame it and that no new trial was warranted.
The written requested charges which were refused were refused without error.
This court, consistent with its duty, has carefully considered the entire record and finds no error to reverse.
Affirmed.
LIVINGSTON, C. J., and LAWSON, MERRILL and COLEMAN, JJ., concur. | December 19, 1957 |
bb621244-8608-4945-af57-9e4ffd67666a | Kissic v. State | 94 So. 2d 202 | N/A | Alabama | Alabama Supreme Court | 94 So. 2d 202 (1957)
Onnie KISSIC
v.
STATE of Alabama.
7 Div. 315.
Supreme Court of Alabama.
March 7, 1957.
Rehearing Denied April 4, 1957.
*203 Ralph Gaines Jr., Talladega, and Beddow, Gwin & Embry and Roderick Beddow, Jr., Birmingham, for appellant.
John Patterson, Atty. Gen., and Edmon L. Rinehart, Asst. Atty. Gen., for State.
MERRILL, Justice.
Onnie Kissic was indicted and tried for the murder of Nile Collard. He was found guilty of murder in the second degree and sentenced to the penitentiary for thirty years and one day, and he appealed to this Court.
This cause must be remanded for another trial and, for that reason, only such facts will be stated as are required to explain the questions of law to which we address ourselves, and only those questions likely to arise in another trial are treated at length in this opinion.
The deceased, while in his own home, received knife wounds which proved fatal. William Curtis Harper was the person *204 who did the cutting. He was tried a month prior to appellant and convicted. The judgment in his case was affirmed by this Court, Harper v. State, 264 Ala. 510, 88 So. 2d 788. Appellant drove the automobile in which he and Harper were riding to the home of the deceased. It was the State's theory that appellant held the deceased while Harper cut him. Appellant's defense was that he was trying to help deceased by pulling Harper off the deceased.
The first question is concerned with a statement admitted into evidence as a dying declaration. Herman Ragsdale, a neighbor of deceased, drove him to the hospital immediately after the cutting. He testified that during the ride to the hospital he told Collard that he was not dying, but Collard's reply was "Yes, I am cut to death;" and later, as he nearly ran the car off the road at a high speed, the deceased said "Herman, I'm dying but don't wreck this car and kill me." Ragsdale testified that he then asked the deceased who cut him and Collard answered "Curtis Harper cut me and Onnie helped him." They arrived at the hospital between three and four o'clock in the afternoon, and Collard died a few hours later.
The two statements preceding the dying declaration were sufficient predicates. We have held that it is not necessary that deceased should have made a specific statement to the effect that he was conscious of impending death. It is only necessary that the circumstances and the statements made by deceased should warrant the inference that deceased felt that he was fatally wounded and would die. Gurley v. State, 216 Ala. 342, 113 So. 391; Gerald v. State, 128 Ala. 6, 29 So. 614; Shikles v. State, 31 Ala.App. 423, 18 So. 2d 412, certiorari denied, 245 Ala. 641, 18 So. 2d 417.
Appellant argues that the part of the dying declaration "* * * and Onnie helped him" was not a collective fact but an illegal and inadmissible conclusion. We cannot agree. In Smith v. State, 133 Ala. 73, 31 So. 942, 943, this Court held that when deceased, in a dying declaration, said one Batts shot him and also that "Bob Smith, was trying to shoot me at the same time," the statement concerning Smith was a statement of a collective fact and was admissible. See Marshall v. State, 219 Ala. 83, 121 So. 72, 63 A.L.R. 560.
Having held that the dying declaration was admissible, this disposes of appellant's contention that he was entitled to the general affirmative charge with hypothesis. The case was properly submitted to the jury. Crowell v. State, 233 Ala. 201, 171 So. 267; Booth v. State, 247 Ala. 600, 25 So. 2d 427.
The trial court properly excluded the testimony of the purported dying declaration made to Officer Higgins and the questions raised as to the prejudicial effect of this testimony should not arise on another trial.
Prior to the close of the State's case in chief, the Solicitor made the following statement:
Following objections, further statements by attorneys etc., the court made the following statement, to which appellant excepted:
Practically the same procedure was followed when the court called Kenneth Collard, the nine year old son of deceased, as the court's witness. In each instance, the court first questioned the witness, then the state and the defendant cross examined them.
In Hunt v. State, 248 Ala. 217, 27 So. 2d 186, 192, we said:
In Anderson v. State, 35 Ala.App. Ill, 44 So. 2d 266, 272, the Court of Appeals said:
While the Hunt case, supra, dealt with the calling by the court of an expert witness, some of the cases cited as authority cover a wider field. The Horne case, from North Carolina, deals with expert testimony, but the three Florida cases are in point in the instant case because in each instance, the prosecution requested the court to call the witness because it was reliably informed that the witnesses would repudiate former statements or testimony. The law in Florida seems settled, based upon these cases, that: "The presiding judge has a right, in the exercise of a sound discretion, to call a witness either for or against the prisoner, and, when so called and questioned by the court, to permit both sides to cross examine him." The Gomila case, supra [146 F.2d 374], while stating that "in aid of truth and in furtherance of justice, the court may question a witness,in fact, he may call and question a witness not used by either party,but in so doing the court should be careful to preserve an attitude of impartiality and guard against giving the jury any impression that the court was of the opinion that defendant was guilty," actually turned on the conclusion that the trial court took too *206 prominent a part in the examination of witnesses called by the parties. In the Guertler case, supra, the trial judge directed the district attorney to call a certain witness, and this was held not to be error. In Young v. United States, 5 Cir., 107 F.2d 490, the right of the trial court to call and examine a witness known to be hostile to the government was upheld.
The opinion in Anderson v. State, supra, cites, in addition to some cases already discussed, a criminal case from Virginia. The Pendleton case holds that the court's calling of a witness believed to be hostile to the commonwealth and permitting her cross examination was done in the exercise of a sound discretion, and did not constitute error.
In view of the holdings in Hunt v. State, supra, and Anderson v. State, supra, and some of the cases cited therein, we are constrained to hold that the trial court, in the exercise of its sound discretion, did not err in calling the ex-wife and son of the deceased as the court's witnesses and in permitting them to be cross examined by each side. It is unnecessary for us to pass on the questioning of these witnesses but we again caution that the court's action and questions should be such at all times to preserve the judicial attitude of strict impartiality.
The trial court committed reversible error in permitting an audograph record to be played in the presence of the jury. A few hours after Collard was cut, the solicitor questioned Collard's ex-wife in the presence of several witnesses, one of whom was the official court reporter. The questions and answers were recorded on an audograph record. At the trial, Mrs. Collard was called as the court's witness and, in her direct examination by the court, she put the blame for the killing on Harper and put her brother, appellant, in the role of helping her pull Harper off deceased. During her cross examination by the solicitor, she was asked if she remembered being put under oath and making a statement. She answered that she did not remember it. The solicitor asked that the record be played to refresh the witness' recollection. Over strenuous objections and exception of appellant, the court permitted the record to be played in the hearing of the jury.
The answers to the questions contained considerable illegal and irrelevant matter and highly prejudicial hearsay statements insofar as the appellant was concerned. When the record had been played, the court made the following statement to the jury:
This statement did not begin to eradicate the possible harmful effects of playing the record in the presence and hearing of the jury. If the purpose of playing the record was to let the witness hear it, that result could have been achieved out of the hearing and presence of the jury. It is obvious from reading the transcript that the state's purpose in having the record played was to have the jury hear it and to impeach the witness. There was no attempt to follow the procedure suggested by the Court of Appeals in Wright v. State, Ala. App., 79 So. 2d 66. While we did not specifically approve this suggested procedure on petition for writ of certiorari, Wright v. State, 262 Ala. 420, 79 So. 2d 74, neither did we disapprove of it.
It is evident that at least the solicitor and the trial court had transcriptions of the audograph record, and extracts from the transcription were later received in evidence for impeachment purposes. We are not to be understood to hold that this latter admission into evidence was erroneous. *207 The error was in the playing of the record in the presence of the jury when it contained illegal hearsay evidence and prejudicial statements. To permit either the state or the defendant to play records previously made of complete conversations with witnesses under the pretext of refreshing their recollection, would open the door to putting evidence before the jury which could never be admitted under the established rules of evidence, and which, once in evidence, would be extremely prejudicial irrespective of any instructions the trial court might give in excluding it or trying to eradicate its effect.
The trial court also erred in making this statement after both sides had rested and just before the argument to the jury:
This statement, to which appellant took exception, shows on its face that the trial court intended it to be applicable to both sides but such a statement should not, under any circumstances have been made in the presence of the jury. If the trial judge had felt that either side had inadvertently overlooked calling Harper as a witness, he could have called it to their attention or made the same offer which he did make out of the hearing of the jury. It is the settled law in this State that no unfavorable inference can be drawn, and no unfavorable argument to a jury made, by counsel against a party to a cause because of the failure to call a witness to testify, when that witness is accessible to both parties, and can be introduced by and examined by either party. Forman v. State, 190 Ala. 22, 67 So. 583; Jarrell v. State, 251 Ala. 50, 36 So. 2d 336. It would seem that a comment by the trial judge from which such an inference could be drawn would also constitute reversible error.
The judgment of the lower court is reversed and the cause remanded.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.
MERRILL, Justice.
In his brief in support of the application for rehearing the Attorney General states: "A careful reading of the record in the instant case makes it extremely questionable that the defendant was prejudiced either by the playing of the audograph record or the judge's statement concerning the availability of Curtis Harper." The statement concerning the availability of Harper is set out in our opinion and we deem no additional comment to be necessary. But we do think it is proper, in view of petitioner's argument, to show that the record does disclose that the audograph record, which was played in the hearing of the jury, contained prejudicial matter. We quote one question and answer:
It is so obvious that this was hearsay that no comment is needed except to note that this was the only information the jury received from any witness that defendant was "holding" deceased.
The State also insists in brief that our opinion in the instant case is susceptible to a construction that no part of a recording can ever be played to refresh the recollection of a witness. We do not intend to so hold. As already stated in our original opinion, Mrs. Collard testified that she did not remember being put under oath and making a statement to the Solicitor and others. (This was the statement contained on the audograph record.) The recording was offered, played and received in evidence solely for the purpose of refreshing the witness' recollection. If that had been the sole purpose, the preliminary part of the recordthe who, what, when, and wherecould have been played; the witness could have heard her own voice enough to positively identify it, and at the same time no prejudice could possibly have resulted. We illustrate by transcribing the first three questions and answers from the record:
The playing of this much of the record would have been ample to refresh recollection, could not have been prejudicial to the defendant and would have been entirely proper. But the playing of the entire record before the jury, involving the first quoted excerpt, was error which was not *209 eradicated by the court's instruction that the recording was not testimony and should not be considered as evidence.
The application for rehearing is overruled.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | March 7, 1957 |
d0732394-f1ab-445d-bad8-70b098731e17 | Ex Parte Ingalls | 93 So. 2d 753 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 753 (1957)
Ex parte Ellen Gregg INGALLS.
6 Div. 74.
Supreme Court of Alabama.
March 7, 1957.
Rehearing Denied April 4, 1957.
*754 Lange, Simpson, Robinson & Somerville, Jas. A. Simpson and Reid B. Barnes, Birmingham, for petitioner.
Cabaniss & Johnston and W. H. Trueman and Dempsey F. Pennington, guardian ad litem, Birmingham, for respondent.
MERRILL, Justice.
Petitioner, Ellen Gregg Ingalls, filed her petition here for a writ of mandamus or other appropriate writ, to require the Honorable J. Russell McElroy, the Presiding Judge of the Tenth Judicial Circuit, sitting in equity, to vacate two decrees. These decrees sustained a motion to strike the amended answer and cross bill of petitioner, filed in response to a bill of complaint of the First National Bank of Birmingham.
The purpose of the bill of the First National Bank was to state its account as contrustee of "Trust C," have its accounts approved, and to be released and discharged from any further accounting as such trustee.
The original bill of the First National Bank alleges that Ellen Gregg Ingalls, as grantor or settlor, entered into a trust indenture, known as "Trust C," with Robert I. Ingalls, Sr., Robert I. Ingalls, Jr., and C. W. Zander as the original trustees for the benefit of the two children of Robert I. Ingalls, Jr., and his descendants. The only living descendants of Robert I. Ingalls, Jr., are alleged to be Elesabeth Ridgely Ingalls, age twenty, and Barbara Gregg Ingalls, age seventeen.
It is further alleged in the bill that the complainant bank became one of the trustees of "Trust C" upon the death of Robert I. Ingalls, Sr., who died July 12, 1951, and that, since that time, complainant has acted as corporate co-trustee.
According to the bill, the trust indenture provided that any corporate trustee, qualified and acting, might be removed and substituted by an instrument in writing by the acting and surviving individual trustee electing to remove such corporate trustee and designating a successor corporate trustee. The bill alleges that the surviving and acting individual trustee, Robert I. Ingalls, Jr., elected to remove complainant as corporate trustee by instrument executed under date of December 22, 1955, and to substitute Hamilton National Bank, a national banking corporation with its principal place of business in Tennessee, as the corporate trustee of the trust.
*755 It is also averred that complainant's functions have terminated but that if "for any reason, said substitution procedure should not be presently effective, complainant desires to and does hereby tender and release to the said surviving or successor trustee, to-wit, Robert I. Ingalls, Jr., and said Hamilton National Bank, all of the funds, assets and properties of the trust in the possession or under the control of complainant and hereby offers to account for all of complainant's receipts, disbursements and actions as trustee, to the end that it may by decree herein be released and finally discharged from further accountability as such trustee."
The parties respondent to the bill were Elesabeth Ridgely Ingalls and Barbara Gregg Ingalls, minors, (a later pleading shows Elesabeth to have married), Robert I. Ingalls, Jr., as guardian, and Ellen Gregg Ingalls, impleaded as grantor or settlor under the trust indenture; also, Robert I. Ingalls, Jr., and Hamilton National Bank as the current trustees under the indenture, and also Robert I. Ingalls, Jr., as contingent beneficiary.
Ellen Gregg Ingalls then filed her answer and cross bill averring numerous alleged wrongful acts of Robert I. Ingalls, Jr., and of other persons or corporations, not only with respect to "Trust C," but also with respect to trusts designated as "B," "D," "E," "F," and "G;" also with respect to the operation and management of Ingalls Iron Works Company, and also with respect to Mr. Ingalls' actions as guardian for his two daughters, and other matters of controversy and litigation between Mrs. Ingalls and her son. She also alleged that the appointment of Hamilton National Bank, as corporate trustee of "Trust C," was illegal and in bad faith, and that the purported appointment should be invalidated, and by an amendment, she alleges such appointment was void. She prayed, inter alia, for the removal of Robert I. Ingalls, Jr., as a trustee of the several trusts, the removal of Hamilton National Bank, as trustee of certain of the trusts, the removal of M. F. Pixton, as trustee of certain of the trusts, and that the attempted appointment of Hamilton National Bank, as trustee of "Trust C," be declared void.
The complainant bank moved to strike the amended answer and cross bill, and this motion was granted by the court below. All the parties to this suit, including the guardian ad litem for the minor, except, of course, Ellen Gregg Ingalls, join in urging that the motion to strike was properly granted. This petition for a writ of mandamus or other appropriate writ is brought here for the purpose of requiring the respondent to vacate the decrees sustaining the motion to strike. The respondent, Judge McElroy, waived the issuance of a rule nisi and filed his demurrer to the petition.
There are only two questions presented to this court in this proceeding. The first is whether Ellen Gregg Ingalls had a sufficient interest in "Trust C" to maintain the cross bill, and the second is whether the other relief sought is germane to the issues raised by the original bill.
Mrs. Ingalls has no standing, solely in her capacity as settlor of "Trust C," to question the administration of the trust. Culbertson v. Matson, 11 Mo. 493; In re Reynolds' Estate, 131 Neb. 557, 268 N.W. 480; Padelford v. Real Estate-Land Title & Trust Co., 121 Pa.Super. 193, 183 A. 442; Barrette v. Dooly, 21 Utah 81, 59 P. 718; Restatement of Trusts, § 200; II Scott on Trusts, § 200.1 (1956).
Title 58, § 65, Code of 1940, as amended, provides that a settlor may file a petition in the circuit court in equity to remove a trustee for certain causes. We agree with the trial court that this statute presupposes that the person whose removal as trustee is being sought is then a trustee. The theory of the cross bill, however, is that the substitution of the Hamilton National Bank is void, and that it never became a trustee. It seems to us that it would be unreasonable to assume that the *756 legislature intended by this section to allow the settlor to raise the question of removal of a substituted trustee in a final settlement proceeding by the removed trustee who has absolutely no interest in the controversy which the cross-complainant seeks to raise.
Of course, Mrs. Ingalls may still invoke the aid of Tit. 58, § 65, in a separate proceeding for that purpose, once it is established that the corporate trustee sought to be removed is an acting trustee.
The petitioner maintains that if she cannot seek the relief she prays for as settlor of the trust, she may still do so in her capacity as a beneficiary. This contention is made because section (g) of "Trust C" provides, in part:
The petitioner claims that since she could possibly be the person to inherit from her husband, the above quoted provision makes her a contingent remainderman, who, under our decisions in Mudd v. Lanier, 247 Ala. 363, 24 So. 2d 550, and Badham v. Johnston, 239 Ala. 48, 193 So. 420, has a sufficient interest to invoke the aid of a court of equity concerning the administration of a trust.
We cannot agree with this contention. In the first place, we are convinced that Mrs. Ingalls did not intend that she would be such a person to inherit from her husband or that any of the property represented by "Trust C" should revert to her. The intention of the settlor is the law of the trust, and if the nature, subject matter and objects are reasonably ascertainable and the scheme not inconsistent with some established rule of public policy, that intention must control and the courts will sustain and give it effect. Goodman v. McMillan, 258 Ala. 125, 61 So. 2d 55; Stariha v. Hagood, 252 Ala. 158, 40 So. 2d 85; Thurlow v. Berry, 249 Ala. 597, 32 So. 2d 526; Ingalls v. Ingalls, 256 Ala. 321, 54 So. 2d 296.
Section (r) of the instrument creating `Trust C" reads: "The Grantor has considered carefully all of the provisions of the within Trust Indenture with counsel and declares the trust hereby created to be irrevocable."
It is unquestionable that the primary objects of Mrs. Ingalls' bounty were her two granddaughters and any future descendants of herself or her son. Section (f) provided that if there should be no living descendants of Robert I. Ingalls, Jr., then the income should go to Robert I. Ingalls, Jr., and if he should die, it should go to his father and her husband, Robert I. Ingalls, Sr. If she had intended to have any property revert to her she could easily have so stated. But construing Section (g) with the other provisions of the indenture, it seems clear that she meant to remove any possibility of a reversionary distribution from herself or her next of kin, but to assure its vesting in her husband's next of kin. This is made manifest by the fact that a claim of a resulting trust might have arisen had she omitted this provision entirely, because the trust was created from funds provided by her husband.
Also, the law of descents and distributions in effect in 1938, when the trust was created, and now, Title 16, § 10, Code 1940, provided, as to the personal estate of the decedent, that the widow, if there are no children, is entitled to all the personal estate. Under the trust indenture, all the descendants of Mr. and Mrs. Ingalls, Sr., had to be dead before the trust terminated. *757 Thus, under the cited statute, if all the beneficiaries died, she would take all the residue. This was so without including Section (g) in the indenture. It is reasonable to hold that she did intend as we have indicated. Of course, her right to the residue would still be contingent upon two possibilities; first, that the statute of descents and distributions would not be changed before the trust terminated and, second, that her separate estate was not of greater value than the property which might be distributable to her. See Chambless v. Black, 250 Ala. 604, 35 So. 2d 348. A brother and two sisters of her husband, Robert I. Ingalls, Sr., are still living.
At best, we think the settlor has such a remote and speculative expectancy that she cannot maintain this cross-action as a contingent remainderman. In order for her to receive any property from the trust estate, under her own theory and construction of the indenture, she, "a person of advanced age and of limited physical stamina," must outlive her son, her twenty year old married granddaughter, her eighteen year old unmarried granddaughter, and any descendants the son or the granddaughters might have; and the trustees must not have distributed to each beneficiary all of the share of such beneficiary, which action the trustees may take after each beneficiary shall have attained the age of twenty-one years. This gives Mrs. Ingalls only an expectancy and not such a "substantial right in that connection, which the court considers as sufficient to invoke its aid." Mudd v. Lanier, 247 Ala. 363, 24 So. 2d 550, 561 [21].
With reference to trusts other than "Trust C," the cross bill was subject to be stricken on the grounds that the issues raised are not germane to the issues raised by the original bill, as amended. Ex parte Arrington, 259 Ala. 243, 66 So. 2d 96; Cox v. Cox, 260 Ala. 524, 71 So. 2d 275; Graham v. Powell, 250 Ala. 500, 35 So. 2d 175; Propst v. Brown, 250 Ala. 282, 34 So. 2d 497.
A motion to strike was the proper method to raise the question of the sufficiency of Mrs. Ingalls' interest to question the accounts of the First National Bank and to test the germaneness of the amended cross bill to the original bill. Ex parte Arrington, supra; Arnold v. Arnold, 246 Ala. 86, 18 So. 2d 730; Maya Corporation v. Smith, 240 Ala. 371, 199 So. 549. The court below correctly granted the motion to strike the cross bill.
Writ denied.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | March 7, 1957 |
e7d406ca-552a-451e-bc7f-f902cce87d0d | Southern Cotton Oil Company v. Wynn | 96 So. 2d 159 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 159 (1957)
SOUTHERN COTTON OIL COMPANY, Inc.
v.
Henry WYNN.
6 Div. 606.
Supreme Court of Alabama.
April 25, 1957.
Rehearing Denied June 27, 1957.
*160 Jas. S. Mead, Birmingham, for appellant.
Harry B. Cohen, Birmingham, for appellee.
GOODWYN, Justice.
This is a proceeding under the Workmen's Compensation Act (Code 1940, Tit. 26, § 253 et seq. as amended) brought in the circuit court of Jefferson County by Henry Wynn against The Southern Cotton Oil Company to recover benefits for a disability allegedly resulting from an accident which arose out of and in the course of his employment by said Company. The trial court granted compensation. The case is here for review on certiorari which we granted on the Company's petition.
The Company's insistencies here may be summarized as follows:
I. That the suit was not brought within the time allowed by the Workmen's Compensation Act, § 296, Tit. 26, Code 1940.
II. That an amendment to the complaint introduced a completely new cause of action which should not have been allowed over the Company's objection.
III. (a) That the trial court's finding that the employee's disability resulted from a cerebral hemorrhage brought about by the employee's physical exertion is not based on evidence.
(b) That "even if the physical exertion engaged in by the employee contributed to a condition which brought about the hemorrhage, it was not an accident and not compensable within the purview of the Workmen's Compensation Act because the employee was engaged in the ordinary and regular performance of his duties; there was no overexertion and no extra hazardous circumstance which contributed to the injury."
(c) That "if the ordinary and uneventful physical exertion of the employee in the performance of ordinary duties produced the hemorrhage, the employee was already totally and permanently disabled in that he suffered from a pre-existing infirmity and the disability claimed would not have resulted had the earlier infirmity not existed."
IV. That excessive compensation was awarded.
To the extent here applicable, § 296, Tit. 26, Code 1940, supra, provides as follows:
The trial court found that "the stroke left the person and mind of the plaintiff in a weak and impaired condition, and that he from the time of the stroke was physically and mentally incapacitated to perform or to cause to be performed the filing of a verified complaint for workmen's compensation within one year after the accident complained of, and that less than one year has elapsed from the date when such incapacity ceased."
The rule of review in cases of this kind has been stated many times to be as follows:
The foregoing principle applies in reviewing the trial court's finding of fact with respect to the employee's "physical or mental incapacity * * * to perform or cause to be performed" the act of filing a verified complaint (§ 304, Tit. 26) the same as other findings of fact. Taylor v. Tennessee Coal, Iron & R. Co., 219 Ala. 614, 615, 123 So. 78.
There is ample evidence to support the finding that the employee was physically and mentally incapacitated from filing a complaint within the one year provided by § 296, supra, so as to bring the time of filing within the influence of the exemption declared in said section.
Petitioner insists that error was committed in allowing plaintiff to amend his complaint by adding paragraphs 3a and 3b. The original complaint alleged that plaintiff had fallen from the coal pile and struck his head upon a concrete floor causing a brain concussion. The evidence at the hearing tended to show that plaintiff had never actually fallen from the pile, but had suffered a cerebral hemorrhage in the course of his employment and as a direct result of the performance of his duties. The amendment was made to meet this evidence. Petitioner insists that such amendment constituted a complete change of the cause of action and should not have been allowed over defendant's objections.
We see little merit in this argument. As this court has often said, compliance with *162 technical rules of pleading is not required in Workmen's Compensation proceedings. Consolidated Coal Co. v. Dill, 248 Ala. 5, 7, 26 So. 2d 88; Humphrey v. Poss, 245 Ala. 11, 12-13, 15 So. 2d 732. Moreover, it seems to us that the amendment, instead of stating a new cause of action, merely restates the accident set out in the original complaint in such a manner as to conform to the evidence introduced by the defendant. It is apparent from the answer to the original complaint that the defendant was aware of the true nature of plaintiff's injury, as the version of the accident set out in the defendant's answer was substantiated by the evidence and the trial court's findings of fact. The defendant in this type of case should not be heard to question an amendment which, in effect, affirms defendant's own version of the facts in the case. We find no error in allowing the amendment, which related back to the filing of the original complaint. See § 239, Tit. 7, Code 1940, allowing amendments while cause is in progress and providing that amendment "shall relate back to the commencement of the suit."
(a) Petitioner's next insistence is that there is no evidence to support the trial court's finding of a causal relation between plaintiff's employment and his injury.
It is clear that the plaintiff has the burden of reasonably satisfying the trial court by competent evidence that the injury was caused by an accident arising out of and in the course of his employment. Davis Lumber Co. v. Self, 263 Ala. 276, 279, 82 So. 2d 291; Wooten v. Roden, 260 Ala. 606, 610, 71 So. 2d 802; Alabama Pipe Co. v. Wofford, 253 Ala. 610, 613, 46 So. 2d 404, 406. As this court has often said, in order to show that the injury was caused by an accident "arising out of" employment, the plaintiff must establish a logical causal connection between his work and the injury. This requirement has been expressed as follows in several of our cases:
The trial court's findings on this point are as follows:
We further find that the immediate cause of the breaking or rupture of the said vessel was the muscular strain and exertion employed by the plaintiff in the ordinary shoveling of the steam coal from the spout as aforesaid."
The question presented is whether there is any legal evidence to support this finding.
The evidence tended to show that the plaintiff had been shoveling coal for about three hours when he was stricken by a cerebral hemorrhage. The only expert witness, Dr. Magruder, who was called by the defendant, testified to the effect that a cerebral hemorrhage was the rupture of a blood vessel in the head, that such a rupture was the result of high blood pressure, that any exertion would tend to increase the blood pressure, and that the exertion of shoveling coal could have caused the cerebral hemorrhage suffered by the plaintiff.
Petitioner's argument is that the expert medical testimony went only so far as to show that the exertion could have caused the hemorrhage, and that the trial court's *163 finding of a causal relation between the work and the injury was, therefore, a mere guess or conjecture and cannot be sustained.
It is true that testimony as to mere possibilities is generally insufficient to sustain an award under the Workmen's Compensation Law, and that the defendant cannot be guessed into liability. Alabama Pipe Co. v. Wofford, supra. It is equally clear, however, that all of the essential facts in a workman's compensation case, including the question of causal relation, can be proved by circumstantial evidence (Davis Lumber Co. v. Self, supra; Gulf States Creosoting Co. v. Walker, 224 Ala. 104, 106, 139 So. 261), and if there is any reasonable view of the evidence that will support the conclusion reached by the trial court, its finding and judgment will not be disturbed here. Davis Lumber Co. v. Self, supra; DeBardeleben Coal Corp. v. Richards, 251 Ala. 324, 327, 37 So. 2d 121.
In the Davis case we specifically held that positive medical testimony as to probable causal relation is not necessary to support a finding of a causal relation by the trial court when there is other evidence to support the court's conclusion. In the instant case, the circumstances of the plaintiff's injury, considered in conjunction with the medical testimony, support a fair inference that the injury was caused by the exertion of his work. Therefore, the finding of the trial court must be sustained.
(b) A further question raised concerns the trial court's conclusion that plaintiff's injury was caused by an accident arising out of his employment without also finding that he was subjected to unusual strain or overexertion in the performance of his work.
Petitioner contends that even though it appears that plaintiff's injury was proximately caused by the exertion of shoveling coal, the court could not conclude that the injury arose out of his employment unless the plaintiff was subjected to "overexertion, extraordinary strain or extrahazardous condition of employment which contributes to the injury received."
To support this contention petitioner relies on three Alabama cases dealing with injuries resulting from exposure. Pullman-Standard Car Mfg. Co. v. Lively, 239 Ala. 684, 196 So. 870 (heat exhaustion); Pow v. Southern Const. Co., 235 Ala. 580, 180 So. 288 (pneumonia resulting from exposure to cold and dampness); Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565, 569 (heat exhaustion). The rule which can be drawn from these cases is that when an injury to an employee results from exposure the injury cannot be regarded as arising out of his employment unless he is subjected to unusual risk and excessive exposure because of the nature of his work. The rule is thus stated in Gulf States Steel Co. v. Christison, supra,
It seems clear that this court has limited application of the foregoing rule to injuries resulting from exposure. See Massey v. United States Steel Corp., 264 Ala. 227, 232, 86 So. 2d 375. In several recent cases it was held that where the proximate cause of the plaintiff's injury was the strain or exertion of his work (as distinguished from exposure), a finding by the trial court that the plaintiff had been subjected to unusual *164 strain or overexertion was not necessary to support a conclusion that the injury was caused by an accident arising out of his employment. Alabama Textile Products Corporation v. Grantham, 263 Ala. 179, 184, 82 So. 2d 204, 208; Davis Lumber Co. v. Self, supra. The pertinent portion of the opinion in the Grantham case is as follows:
(c) The next insistence is that the trial court erred in awarding benefits for total and permanent disability. The argument is that plaintiff "was already totally and permanently disabled in that he suffered from a pre-existing infirmity and the disability claimed would not have resulted had the earlier infirmity not existed."
It is now well settled that compensation is not limited to those in perfect health. The test is, was the accident a proximate contributing cause acting upon the particular individual to produce disability or death, whether directly or through disease? Massey v. United States Steel Corporation, 264 Ala. 227, 230, 86 So. 2d 375, supra; Gadsden Iron Works v. Beasley, 249 Ala. 115, 119, 30 So. 2d 10; New River Coal Co. v. Files, 215 Ala. 64, 65, 109 So. 360. See Irby v. Republic Creosoting Co., 5 Cir., 228 F.2d 195, 198. The rule is thus stated in Larson's Workmen's Compensation Law, Vol. 1, § 12.20, p. 170:
Petitioner does not question this principle, but argues that it cannot be held liable for permanent and total disability because plaintiff's high blood pressure contributed to some extent to the degree and duration of his *165 disability. In support of this petitioner refers to the following provision in the Workmen's Compensation Law, § 288, Tit. 26 Code 1940, viz.:
To dispose of this insistence we need only to observe, assuming (without deciding) the pertinency of § 288 (see Ingalls Shipbuilding Corporation v. Cahela, 251 Ala. 163, 173, 36 So. 2d 513, which both parties rely on), the defendant offered no proof which would have enabled the court to make a finding under § 288.
The trial court made a finding that plaintiff's average weekly earnings for a period of 52 weeks immediately preceding the accident were $40.78. It was further found that plaintiff "would be entitled to compensation in the sum of $21.00 per week, and that he had a dependent wife, who is entitled to $2.00 per week, making a total of $23.00 per week compensation for a period of four hundred (400) weeks to which this plaintiff is entitled." It was further found that $8,400 was the maximum to be paid to plaintiff under the law then applicable (Act No. 36, approved June 2, 1949, Acts 1949, pp. 47-51, amending § 279, Tit. 26 Code 1940). It is provided in the judgment that said sum of $8,400 "includes $2.00 weekly for the plaintiff's wife, and that in the event of the death of the plaintiff's wife or in the event she should no longer become dependent within the meaning of said compensation laws of Alabama, that the aforestated sum of $23.00 per week be credited with the sum of $2.00."
Petitioner insists that the court erred in providing for weekly payments of $23 instead of a maximum of $21. There is no disagreement with respect to the total authorized allowance being $8,400.
Subsection (E) 3 of § 279, Tit. 26, Code, supra, as amended by Act No. 36, supra, provided as follows:
"3. Other permanent total disabilities.
"For permanent total disability other than as defined in subsection (E) fifty-five percent of the average weekly earnings received at the time of injury subject to a maximum compensation of twenty-one dollars per week, and a minimum compensation of five dollars per week; but if at the time of the injury the employee was receiving earnings of less than five dollars per week, then he shall receive the full amount of his earnings per week. This compensation shall be paid during the period of such permanent disability not exceeding four hundred weeks; payments to be made at the intervals when the earnings were payable as nearly as may be. Such payments with the consent of the circuit judge, may be made monthly or quarterly."
Subsection (H) of said § 279, as amended by Act No. 36, supra, provided as follows:
"(H) Percentage Increase for Wife and Children.
It seems to us that subsec. (H) clearly provides for an increase in the authorized percentage and does not affect the authorized maximum compensation of $21 per week. That subsection provides that the injured employee may be awarded up to 65% of his average earnings if he has dependents, *166 but the award remains subject to the maximum compensation of $21 a week set out in subsec. (E) 3. Section 289 of Tit. 26, Code 1940, as amended by Act No. 36, supra, supports this conclusion. It is there provided:
See Goodyear Tire & Rubber Co. of Alabama v. Downey, Ala., 96 So. 2d 278.
It is apparent that the trial court's judgment is incorrect in fixing the weekly payments at $23. However, it appears that plaintiff is entitled to weekly payments of $21 for a period of 400 weeks or a maximum of $8,400. The judgment will be here modified in that respect.
Judgment modified and, as modified, affirmed.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | April 25, 1957 |
96ecfb5a-775f-4394-a9d1-d862c642c3cd | Scherf v. Renfroe | 93 So. 2d 402 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 402 (1957)
Mary Walters SCHERF
v.
J. W. RENFROE et al.
4 Div. 774.
Supreme Court of Alabama.
February 21, 1957.
Rehearing Denied March 21, 1957.
*403 W. H. Albritton, Andalusia, John C. Walters, Troy, and Albrittons & Rankin, Andalusia, for appellant.
Oliver W. Brantley, Troy, guardian ad litem and for appellees.
*404 GOODWYN, Justice.
This is an appeal from a decree of the circuit court of Pike County, in equity. The case involves the construction of a property settlement agreement made a part of a divorce decree.
Mary Walters Scherf, appellant, and J. W. Renfroe, one of the appellees, were formerly husband and wife. In December, 1948, their marriage was dissolved by a decree of divorce rendered by the Pike County circuit court, in equity, on a bill filed by the wife. A property settlement agreement was incorporated into the divorce decree and approved by the court. The instant case turns upon the construction and effect to be given certain provisions of that agreement. The portions which are germane to the question here are as follows:
The life insurance policies mentioned in paragraph 5 and set out as an exhibit to the agreement are as follows:
At the time the divorce was granted the parties had four minor children, all of whom were placed in custody of the mother. When the present proceeding was instituted the ages of the children were 9, 19, 22 and 24. All of the children were made parties-respondent to the bill.
Both J. W. Renfroe and appellant have remarried and now have children by their second marriages. Mrs. Scherf remarried in 1950.
In her bill Mrs. Scherf alleges that Renfroe breached the property settlement agreement in allowing two of the insurance policies, one for $2,000.00 and one for $10,000.00, to lapse in 1949, prior to appellant's remarriage.
Appellant contends that on lapse of the insurance policies the title to the house vested absolutely in her under the provisions of paragraph 8 of the property settlement agreement.
J. W. Renfroe disclaimed any interest in the property. A guardian ad litem was appointed to represent the minor respondents and he has appeared and filed a brief in their behalf on this appeal.
The question presented concerns the title to the house and lot in Troy which was the home of the parties at the time of the divorce. As we see it the disposition of this property must be based upon the construction and effect given certain clauses of the property settlement agreement, particularly paragraphs 6 and 8.
There appears to be no question that Renfroe breached the contract by failing to pay the premiums on two of the insurance policies, thus allowing them to lapse prior to appellant's remarriage, as alleged in the *406 bill. This brings us to the specific point to be decided: Did absolute title to the real estate vest in appellant on this breach?
Appellees insist that paragraph 8 should not be given effect because (1) it is in conflict with the preceding provisions of the contract, specifically the provisions of paragraph 6, and (2) because it would work an inequitable forfeiture of the rights of the children. These contentions were sustained by the trial court. Having decided that the contract was ambiguous and that paragraph 8 could not be reconciled with the preceding provisions, the court applied the following principles:
We recognize the soundness of these principles, but do not consider them applicable to the contract before us. While the contract is complex, we do not think it it is ambiguous. The provisions of paragraphs 6 and 8, when considered separately and not as part of the agreement as a whole, do appear to be contradictory. But when considered together with the other provisions of the agreement it seems to us that both paragraphs have a definite place in the overall agreement. A contract must be construed as a whole and, whenever possible, effect will be given to all of its parts. The court will look to all of its provisions and the object to be accomplished. Penn Mut. Life Ins. Co. v. Fiquett, 229 Ala. 203, 207, 155 So. 702; Chapman v. Nitrate Agencies Co., 225 Ala. 650, 652, 144 So. 810; 17 C.J.S., Contracts, § 297, p. 707.
The conclusion is inescapable that under the express terms of the contract appellant acquired absolute title to the real estate upon breach of the contract by Renfroe. Although limitations on appellant's title are set forth in paragraph 6 such limitations are subject to the provisions of paragraph 8 which provide, in effect, that these limitations shall terminate in event of Renfroe's failure to perform his agreements.
This brings us to the question whether the provision in paragraph 8 that appellant's title to the real estate should "become absolute notwithstanding anything herein to the contrary" upon a breach by Renfroe operates as a forfeiture which equity will not enforce. The position taken by appellees is that the provisions of paragraph 8 amount to an unconscionable forfeiture of the rights of the children from which equity should grant relief.
The portion of the trial court's opinion which deals with the supposed forfeiture aspect of the contract is as follows:
The power of a court of equity to grant relief from an unconscionable forfeiture is well-established. Humphrey v. Humphrey, 254 Ala. 395, 396, 48 So. 2d 424, 31 A.L.R.2d 315; Dean v. Coosa County Lumber Co., 232 Ala. 177, 182, 167 So. 566; Hunter-Benn & Company v. Bassett Lumber Co., 224 Ala. 215, 218, 139 So. 348; Barton v. W. O. Broyles Stove & Furniture Co., 212 Ala. 658, 659, 103 So. 854; 30 C.J.S., Equity, § 56, p. 393; 19 Am.Jur., Equity, § 88, p. 99. However, we do not think this principle has application to the contract before us.
Appellees recognize that there can be no forfeiture so far as Renfroe is concerned for the obvious reason that he was completely divested of all interest in the property by the very terms of the contract whether he performed the conditions therein imposed on him or not. As already noted, their insistence is that the failure of Renfroe to perform his agreements operated as an inequitable forfeiture of the rights of the children. But the rights of the children are limited by and subject to the conditions of the same contract which gives them whatever interest they might acquire in the property. Before the contract was executed the children had no interest whatever in the property and after its execution they acquired no interest except that given by the terms of the contract. They are not parties to the contract but are conditional beneficiaries thereunder. There is no question that the parties to the contract (the mother and father) could have provided, in the first instance, that title to the property completely vest in the mother immediately upon execution of the contract, for the children, as such, had no title to their parents' property and could not have prevented them from conveying, one to the other, any property either owned. Clearly, then, whatever interest the children might have in the property is by virtue of their *408 parents' separation agreement. And that agreement (paragraph 8) specifically provides that the mother's title shall become absolute, notwithstanding anything in the agreement to the contrary, upon failure of the father to perform any of the agreements therein imposed on him. This provision, it seems to us, is no more than a simple condition subsequent which the parents had the right to include as a part of their separation agreement. We do not think it is a provision for a forfeiture against rights of the children, for their rights are subject to this condition. They could acquire no vested right in the property except on the death or remarriage of their mother during the lifetime of their father (par. 6 (a)); but another condition (failure of the father to pay the insurance premiums) operated to vest absolute title in the mother before her remarriage. And there is no provision for divesting the title out of the mother after the absolute vesting of title in her under paragraph 8.
See, also 17 C.J.S., Contracts, § 319, pp. 741-742.
The decree appealed from is reversed and the cause remanded to the trial court for further proceedings not inconsistent with the views herein expressed.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | February 21, 1957 |
61689397-80fb-44c8-922c-afee9b9410ed | Ingalls Iron Works Co. v. Ingalls Foundation | 98 So. 2d 30 | N/A | Alabama | Alabama Supreme Court | 98 So. 2d 30 (1957)
INGALLS IRON WORKS CO. et al. (Elesabeth Ridgely Ingalls, et al., Intervenors),
v.
INGALLS FOUNDATION et al.
6 Div. 985, 986, 987.
Supreme Court of Alabama.
May 9, 1957.
Rehearing Denied November 21, 1957.
*32 Chas. W. Greer, Birmingham, for respondent-appellants.
Bainbridge & Mims, Birmingham, for intervenors.
Lange, Simpson, Robinson & Somerville, Jas. A. Simpson, Reid B. Barnes and Daniel J. Meador, Birmingham, for appellees.
LIVINGSTON, Chief Justice.
The bill of complaint as amended was brought by Ellen Gregg Ingalls and James A. Simpson, as a majority of the co-executors of the estate of R. I. Ingalls, Sr., deceased, against the Ingalls Iron Works Company, and R. I. Ingalls, Jr., in the Circuit Court, in Equity, of Jefferson County. The First National Bank of Birmingham, the third co-executor of the estate of R. I. Ingalls, Sr., who refused to join as complainant in bringing this bill, was joined as a party respondent. The bill as amended avers that on April 15, 1943, R. I. Ingalls, *33 Sr., entered into a written contract with the Ingalls Iron Works Company whereby he gave the company the option to purchase the 2,287 shares of its capital stock owned by him, upon his retirement or death. That Ingalls died testate on July 12, 1951. That thereafter the board of directors of the company on four separate occasions adopted resolutions releasing all of the company's right under said contract. That on July 18, 1951, the day after the first said resolution was adopted, Ingalls' stock was delivered to Mrs. Ingalls, James A. Simpson, and the First National Bank of Birmingham, who were nominated executors in the last will and testament of Ingalls, accompanied by a letter of transmittal, which stated that the company released all its rights under said option contract to purchase the stock. That since this time, the stock has remained in the hands of these persons, who on August 2, 1951 were named executors of Ingalls' estate. That on December 30, 1952, a reconstituted board of directors rescinded the resolutions of the old board and elected to purchase said stock. The bill seeks to set aside the action taken by the reconstituted board on grounds that as a result of the actions taken by the old board the company relinquished all of its rights to purchase the stock involved and for that reason the acts of the reconstituted board in regard to this contract were inefficacious and void, and further that if the company did not effectively relinquish its right to purchase the stock as a result of the actions taken by the old board, the subsequent action taken by the reconstituted board in regard to this stock was without legal effect for the action was the direct result of the fraudulent conduct of R. I. Ingalls, Jr.
The respondents demurred to the bill as a whole and specifically to each aspect thereof. Said demurrer was sustained as to that aspect charging that the action of the reconstituted board was the result of the fraudulent misconduct of R. I. Ingalls, Jr., and overruled as to all other aspects. From this ruling respondents appeal.
The contract provides as follows:
"This Option, made this 15 day of April, 1943, by R. I. Ingalls and his wife, Ellen G. Ingalls (hereinafter called stockholder and wife, respectively), with and in favor of The Ingalls Iron Works Company, a corporation organized and existing under the laws of the State of Delaware, (hereinafter called the Coorporation).
"Witnesseth:
"Whereas, of the total of 15,000 shares of the issued and outstanding capital stock of the Corporation, Stockholder is the owner and holder of 2,287 shares representing a twenty-two hundred and eighty-seven fifteen thousandths (2,287/15,000) interests in the Corporation as now evidenced by certificates as follows:
"Whereas, the present successful status of the Corporation is entirely attributable to the painstaking efforts and splendid co-operation of the stockholders and it is the desire of the Stockholder that the splendid harmony and the continuity of management be not disturbed in the event of the retirement or death of the Stockholder, by the interest of the Stockholder in the Corporation passing to outside and disinterested persons; and
"Whereas, it is the desire of the Stockholder upon his retirement or death not only to protect the remaining or surviving stockholders of the Corporation by insuring the return of all his stock to the Corporation, at its election, but also to assure the remaining or surviving stockholders that upon his retirement or death his interest in the Corporation, as herein described, may be retired at the price and under the terms as hereinafter provided.
"Now, Therefore, in consideration of the premises and the sum of One Thousand ($1,000.00) Dollars cash in hand paid to Stockholder and his wife by the Corporation, *34 the receipt whereof is hereby acknowledged, and in further consideration of the mutual undertakings and covenants of the parties hereto as hereinafter set forth, it is agreed:
"1. That at any and all times during the life of the Stockholder and for thirteen (13) months after his death, the Corporation shall have a right, exercisable by written notice to the Stockholder prior to his death or by written notice to the executors, administrators or other legal representatives of the Stockholder subsequent to his death, to purchase all or any part of the twenty-two hundred eighty-seven fifteen thousandths (2,287/15,000) interest which the Stockholder now holds in the Corporation, as represented by the 2,283 shares of stock and the 4 shares of stock and evidenced by Certificate No. 31 and Certificate No. 34, respectively, as aforesaid, and any renewals or reissues thereof and said stock's pro rata proportion of any dividends declared on the issued and outstanding stock of the Corporation in the form of additional stock in the Corporation. In the event the Corporation shall elect to purchase all of the interest and stockholdings of the Stockholder in the Corporation, as evidenced by said Certificate No. 31 and No. 34 and any certificates evidencing any renewals or reissues thereof and dividends declared thereon in the form of additional stock in the Corporation, then the Corporation shall pay therefor (a) the aggregate sum of One million eighty thousand and no/100 ($1,080,000.00) Dollars, plus (b) the amount of cash dividends which shall have then been declared thereon but be unpaid. In the event, however, that the Corporation shall elect to purchase only part of the interest of the Stockholder in the Corporation, as hereinabove described, then the Corporation shall pay for the part so purchased (a) an amount which bears the same ratio to the said aggregate sum of $1,080,000.00 as the part so purchased bears to the entire interest of the Stockholder in the Corporation as described and referred to in this paragraph 1, plus (b) the amount of any cash dividends which shall then have been declared on the part so purchased but be unpaid. Any such purchase, if made, shall be upon the terms and conditions herein contained.
"2. That the stock certificates described in paragraph 1 hereof and all certificates evidencing any renewals or reissues thereof and all certificates evidencing any additional stock issued as dividends on the said interest of the stockholder in the Corporation, shall be endorsed as follows:
"This stock certificate is subject to an option to purchase dated April 15, 1943, in favor of the Ingalls Iron Works Company."
That the stockholder agrees to assign and deliver, concurrently with the execution and delivery of this Option said stock certificates No. 31 and No. 34, properly endorsed, to the Corporation, as Trustee only, for the purpose of this Option. Stockholder will and shall likewise assign and deliver to the Corporation, As Trustee only, promptly as and when issued, all stock certificates evidencing any renewals or reissues of said stock certificates No. 31 and No. 34 and all certificates evidencing any additional stock issued by the Corporation as dividends on the said interest of the Stockholder in the Corporation, for the purpose of this Option and endorsed as above prescribed.
"3. That the stock owned by Stockholder and subject to this Option shall be voted by him and he shall receive all dividends declared and paid thereon and other rights accruing thereunder during his natural life, and, after his death, said stock shall be voted by his legal representatives, who shall receive all dividends declared and paid thereon and other rights accruing thereunder until such time as the option granted herein shall have been exercised, if the same be exercised, and the purchase pursuant thereto shall have been completed; provided, however, that all dividends paid in the form of additional stock in the Corporation shall, promptly as and when received, *35 be assigned, endorsed and delivered to the Corporation, as Trustee, for the purposes of this Option as provided in paragraphs 1 and 2 hereof and the full consideration therefor is included within the consideration as provided in said paragraph 1.
"4. That in addition to the Option granted to the corporation as provided in paragraph 1 hereof, the Corporation shall have the right, exercisable by written notice at any time within the time provided in paragraph 1 hereof, to repurchase from the stockholder or his executors, administrators or other legal representatives all or any part of any new stock (but such renewals or reissues of the present stock owned by the Stockholder or any additional stock issued as dividends thereon as are included within the option granted to the Corporation under paragraph 1 hereof, shall not be construed as new stock) which may be hereafter issued by the Corporation and purchased by the Stockholder, whether purchased by him pursuant to any rights accruing to him as a stockholder or record of the Corporation or otherwise; such purchase, if made, to be at and for the same price per share paid therefor by the Stockholder, plus the amount of any cash dividends which shall have then been declared thereon but be unpaid, and such purchase, if made, shall, except as provided in this paragraph 4, be subject to all other terms and provisions of this Option. The certificates evidencing any stock which may be acquired by the Stockholder as provided in this paragraph 4 shall promptly, when and as received by the Stockholder or his executors, administrators, or other legal representatives, be assigned, delivered, endorsed and held as provided in Paragraph 2 hereof and shall, except as provided in this paragraph 4, be subject to all other provisions of this Option.
"5. That in the event the Corporation shall, pursuant to the terms hereof, elect to purchase all or any part of the interest of the Stockholder in the Corporation, as aforesaid, it shall pay over the purchase price therefor, as provided in paragraph 1 hereof or paragraph 4 hereof, as the case may be, to the Stockholder or the executors, administrators or other legal representatives of the Stockholders, as the case may be, and the corporation, as Trustee, shall thereupon transfer and deliver the certificates evidencing the interest of the Stockholder in the Corporation so purchased to the Corporation, free and clear of all liens and claims of any persons whosoever.
"6. That to assure the Stockholder that the Corporation will be able to carry out the terms hereof, should the option herein granted be exercised by the Corporation as herein provided, the Corporation has caused the life of the Stockholder to be insured in the amounts set forth in Schedule `A' attached hereto and made a part hereof, each of which policies has been made payable to the Corporation. The Corporation may obtain further and additional insurance on the life of the Stockholder for the purposes herein expressed and, in such event, the policies shall be added to and made a part of said Schedule `A' with the same force and effect as if originally included therein.
"7. That the Corporation shall pay all the premium deposits on the insurance policies referred to in paragraph 6 hereof promptly as they become due.
"8. That all rights under the said policies, such as, but not limited to, the right to dividends, loans, surrender, and change of beneficiary, shall be reserved to the Corporation.
"9. That upon the death of the Stockholder the Corporation shall immediately make claim for and collect the net proceeds of the policies of insurance, of which it is then the Owner, covering the life of the Stockholder and hold the proceeds in a separate fund as Trustee (except as to an amount of such proceeds as shall be equal in value, as herein fixed or determinable, of any part of said interest of the Stockholder in the Corporation which shall have been theretofore purchased and paid for or released and freed from the terms *36 of this Option, as herein provided) subject to the following conditions:
"(a) In the event the Corporation shall elect to purchase all or any part of said interest of the Stockholder as herein provided, then the Corporation shall apply the net proceeds of said policies, or such amount thereof as shall be required, against the purchase of such of the said interest as the Corporation shall elect to purchase, at the price fixed or determinable as provided in paragraph 1 hereof or paragraph 4 hereof, as the case may be.
"(b) At such time prior to the expiration of the time allowed in paragraph 1 hereof for the purchase of said interest of the Stockholder in the Corporation as the Corporation shall give notice of its decision to release and free from the terms of this Option any of said interest, then such amount of the said insurance proceeds as shall be equal to the value as fixed or determinable, as herein provided, of the interest so released and freed shall become the property, absolutely, of the Corporation free of any trust.
"(c) At the expiration of the time allowed in paragraph 1 hereof for the purchase of said interest of the Stockholder in the Corporation, all the said insurance proceeds, or such amount thereof as shall not have been applied to the purchase of any of said interest within such time, shall become the property, absolutely, of the Corporation free of any trust.
"10. That in the event the Corporation shall, at any time prior to the death of the Stockholder, give written notice to the Stockholder of its decision to release and free from the terms of this Option all or any part of said interest of the Stockholder, then, and in such event, the Stockholder shall have a right, exercisable by written notice to the Corporation, to take over not to exceed an amount of the said insurance policies on his life, as described in Schedule `A' hereto attached and such further and additional insurance policies as may be hereafter added to said Schedule `A', as shall be equal in value, as herein fixed or determinable, to the interest so released and freed from the terms of this option, by and upon paying to the Corporation the full cash value of such policies so taken over as of the date of such payment and the full amount of all unpaid dividends thereon as shall have accrued to such date; provided however, that the right given to the Stockholder as contained in this paragraph 10 shall in any and all events terminate at the death of the Stockholder, irrespective of whether or not the Stockholder shall have, prior to his death, given notice of his election to exercise such right, unless prior to his death he shall have actually and physically paid over to the Corporation the full cash value of such policies and the full amount of all accrued and unpaid dividends thereon, as aforesaid.
"11. That this Option shall terminate upon the bankruptcy, insolvency or dissolution of the Corporation.
"12. That this Option shall be binding and inure to the benefit of the parties hereto, their heirs, executors, administrators, successors and assigns and shall be irrevocable by the Stockholder.
"Any option or options heretofore given by the Stockholder and his wife to the Corporation (other than such repurchase rights as the constitution and by-laws or certificates evidencing the stock herein described or referred to) to purchase any interest of the Stockholder in the Corporation are hereby, by mutual consent, rescinded and withdrawn and shall be of no force and effect whatsoever.
"In Witness Whereof, the said R. I. Ingalls and his wife, Ellen G. Ingalls, have hereunto set their hands and seals and The Ingalls Iron Works Company, a corporation, has caused this instrument to be executed and its corporate seal hereunto affixed, *37 this the day and year first above written.
The terms of the contract are explicit in regard to the matter involved in this cause. The contract was in fact an option contract. The directors had the right to exercise the option, to release it, or to allow it to expire by the passage of time. The bill avers facts which show that it was in the interest of the corporation and, therefore, the stockholders, to release the option. A matter of discretion in management is not for the courts to review. Waldrop v. Martin, 237 Ala. 556, 188 So. 59; Sullivan v. Central Land Co., 173 Ala. 426, 55 So. 612; 13 Fletcher, Cyc.Corp. (Perm. Ed.) § 5821.
The appellants' contention that Ingalls Iron Works Co. v. Ingalls, 256 Ala. 124, 53 So. 2d 847, 848 is determinative of the issues involved in this cause is without merit. In that case, the company brought a bill against R. I. Ingalls, Jr. seeking specific performance of a contract, identical in all material respects to the one involved in the present cause. The company also sought the instruction and advice of the court as to what right the corporation, "as trustee only for the purpose of this option," had to use the stock delivered to it under said contract. The lower court sustained a demurrer to the bill and ruled that from anything appearing on the face of the bill, the bill could not be amended so as to give it equity, and dismissed the cause. This court in affirming the lower court, held that the involuntary removal of R. I. Ingalls, Jr. from the offices that he held in the company at the time the option was executed did not mature the company's right to exercise the option. It is true that in that case Justice Brown determined that Robert I. Ingalls, Sr., Mrs. Ingalls, and R. I. Ingalls, Jr. in executing substantially identical contracts were dealing inter sese and for their mutual benefit, and that their purpose in so dealing was to keep the stock from passing out of the family. And further that the corporation was "stakeholder and depository and a mere bailee," and as such the only right or duty resting on it was "to hold the stock for the purposes and subject to the maturity of the option." This case in no way holds that an absolute duty devolved upon the corporation to purchase the stock upon the happening of an event which would give it the right to purchase the stock.
Appellants further argue that the bill shows that the resolutions adopted by the old board of directors were void or voidable at the instance of the corporation because of the divided fiduciary loyalty and personal pecuniary interest of some of the directors.
The bill avers that R. I. Ingalls, Sr. died testate on July 12, 1951. That Mrs. Ingalls was a beneficiary under the will of R. I. Ingalls, Sr., deceased, and an executrix of his estate. That Mrs. Ingalls and Marvin F. Pixton were trustees of the Ingalls Foundation, a beneficiary under Ingalls' will. That the Ingalls Foundation is a non-profit corporation, organized exclusively for charitable, scientific, literary, and educational purposes, and that no part of its net income can inure to the benefit of any private stockholder or individual. That Mrs. Ingalls and Pixton are trustees of certain living trusts, the corpus of which consists of shares of stock in the Ingalls Iron Works Company. That on July 17, 1951, the board of directors of the Ingalls Iron Works Company, composed of Mrs. Ingalls and Pixton, unanimously adopted a resolution electing not to exercise the corporation's right to purchase the stock held by R. I. Ingalls, Sr. in the company at the time of his death. That on August 7, 1951, W. R. Guest was elected by the directors to the board to fill the vacancy created by the death of R. I. Ingalls, Sr., and a second *38 resolution electing not to exercise the corporation's right to purchase said stock and releasing all rights that the corporation had under said option contract was passed by a majority of the directorsMrs. Ingalls refraining from voting. That on September 21, 1951, the by-laws of the corporation were amended to state that the board of directors should not be less than three nor more than five, and K. H. Gayle, Jr. was elected to the board. That on June 30, 1952, prior to which time Pixton had resigned as trustee of the Ingalls Foundation, the board of directors, composed of Mrs. Ingalls, Gayle, guest and Pixton, unanimously adopted a resolution adopting the action taken by Gayle, as President of the company in making a written agreement with the executors of Ingalls' estate extending the time limit in which the company had the right to exercise the option to nineteen months after the death of Ingalls, in lieu of the thirteen months provided for in the contract, and a resolution electing not to purchase the stock owned by Ingalls at the time of his death and releasing all rights that the company might have under said option contract. On August 5, 1952, the board, composed of the same members, unanimously adopted a resolution adopting the action taken by the board in respect to said option on the three previously mentioned occasions.
Directors of a corporation, though technically not trustees exercise functions of a fiduciary character. O'Conner Min. & Mfg. Co. v. Coosa Furnace Co., 95 Ala. 614, 10 So. 290, 36 Am.St.Rep. 251. And a director cannot act as such in a transaction which will affect his personal pecuniary interest. Holloway v. Osteograf Co., Inc., 240 Ala. 507, 200 So. 197; Holcomb v. Forsyth, 216 Ala. 486, 113 So. 516. Therefore, since Mrs. Ingalls could personally benefit by the action taken by the directors in regard to the stock option in question, the resolutions would have been voidable at the instance of the corporation or stockholders, without regard to the question of actual injury or detriment to the corporation, if Mrs. Ingalls had been necessary in making up a quorum of the board (Holcomb v. Forsyth, supra; 3 Fletcher Cyc.Corp. [Perm. Ed.] § 938, p. 387), or if her vote had been necessary in adopting the resolutions. Holloway v. Osteograf Co., Inc., supra; 3 Fletcher Cyc.Corp. (Perm. Ed.) § 936, p. 381.
The Restatement of the Law of Trusts, § 170(q) provides:
"Q. Duty of trustee under separate trusts. Where the trustee is trustee of two trusts if he enters into a transaction involving dealing between the two trusts, he must justify the transaction as being fair to each trust. If the circumstances are such that the interests of the beneficiaries of the different trusts are so conflicting that the trustee cannot deal fairly with respect to both trusts, he cannot properly act without applying to the court for instructions."
This rule has been adopted by this court. First Nat. Bank of Birmingham v. Basham, 238 Ala. 500, 191 So. 873, 125 A.L.R. 656; Birmingham Trust & Savings Co. v. Strong, 239 Ala. 118, 194 So. 200. In the Basham case, this court held that if a trustee has no personal interest to serve, there is nothing inherent in a transaction, wherein the trustee is trustee for both buyer and seller, inconsistent with full loyalty to both trusts.
See 3 Bogert on Trusts and Trustees, § 543, p. 384; Annotation, 129 A.L.R. 150.
In the instant cause the bill shows that Pixton had no personal interest to serve by the action taken by the directors on the option contract, and that there was no direct dealing between Pixton as director of the corporation and Pixton as a director of the Ingalls Foundation or as trustee of certain of the Ingalls trusts. It is shown by the bill that the Foundation could possibly be affected by the action taken on the option contract, but it is not definitely shown that such would be the case. The bill shows that the Ingalls trusts would be affected by the action taken on the *39 option contract in that if the option was exercised the outstanding stock in the Ingalls Iron Works Company would be reduced from 15,000 to 12,713 shares of common stock, and that the corpus of the trusts consisted of stock in the corporation.
We do not think that Pixton's being a director of the Ingalls Foundation which could only incidentally be affected by the action taken on the option contract by the directors would disqualify him to act as a director in regard to the option contract. But the bill further shows that Pixton resigned as a director of the Ingalls Foundation prior to the adoption of the third and fourth resolutions. Certainly, the mere fact that he had once been a director of a charitable corporation which could incidentally be affected by the action taken on the option contract by the directors would not disqualify him to act as a director in regard to said option contract. Nor would being a trustee of two of the Ingalls trusts disqualify Pixton to act as a director on this transaction. In Ingalls v. Ingalls, 257 Ala. 521, 59 So. 2d 898, this court stated that the very life-blood of the trusts here involved depended upon the continued prosperity of the Ingalls Iron Works Company and its ability to pay dividends. The bill further shows that Pixton thought it in the interest of the corporation and the stockholders not to exercise the option. Therefore the bill does not show that Pixton was not qualified to act as a director in regard to the stock option.
If a director who has a personal pecuniary interest in a transaction is not necessary to constitute a quorum and his vote is not necessary to the transaction, the transaction is valid and cannot be set aside, unless the transaction is unfair to the corporation and the directors have acted in bad faith. Holcomb v. Forsyth, supra; 2 Fletcher Cyc. Corp. (Perm. Ed.) § 426; Annotation, 24 A.L.R.2d 71, 95. There is a presumption that directors of a corporation will do their duty, but this presumption is overcome by the presence of causes sufficient to influence them to do otherwise. Montgomery Traction Co. v. Harmon, 140 Ala. 505, 37 So. 371; Decatur Mineral Land Co. v. Palm, 113 Ala. 531, 21 So. 315, 59 Am.St.Rep. 140. The bill shows that Mrs. Ingalls was the only director individually owning stock in the company at the time the resolutions electing to release the option were adopted, however, this is not sufficient in and of itself to show that the transaction was unfair to the corporation and that the directors acted in bad faith; especially since the bill affirmatively shows that the disinterested directors thought it in the interest of the corporation to release said option.
The lower court did not err in overruling the demurrers to the bill of complaint as amended.
Without waiving its demurrer, the respondents entered an answer to the complaint which it asked to be considered in the nature of a cross-bill. The answer avers that contemporaneously with the execution by R. I. Ingalls, Sr. of the contract set out in the bill of complaint, his wife, Ellen Gregg Ingalls, and his son, R. I. Ingalls, Jr. each executed an instrument substantially identical with the contract executed by R. I. Ingalls, Sr. That at the time said three instruments were executed, these three individuals owned 8,195 shares of the 15,000 shares of capital stock of the Ingalls Iron Works Company then outstanding, and that they constituted a majority of the board of directors of said company. That by reason of the aforesaid facts and relationships the said instruments constituted a single agreement entered into by the controlling stockholders of the company, whereby these stockholders were dealing with themselves and using the company as a baillee or stakeholder for the purpose of keeping the stock owned by these three stockholders in the Ingalls family. That these contracts did not authorize the company to convert said stock to its own use or to the use or benefit of the executors of the estate of R. I. Ingalls, Sr. or to any one else. Respondents further aver that under the aforesaid contracts *40 the company was required to insure the life of each of the three contracting stockholders. That in so doing the company used the assets of the company of which the stockholders were the equitable owners. That the full accomplishment of the aforesaid purpose of the contracting parties would ultimately result in vesting the sole ownership of the company in the surviving stockholders. That the resolutions releasing the stock were adopted without the consent of said stockholders other than Mrs. Ingalls and the trustee-stockholder, M. F. Pixton. That if the respondents are mistaken as to the nature and effect of the three instruments, that the resolutions adopted as alleged in the complaint constitued an abuse of discretion on the part of the directors and amounted to a fraud perpetrated by the directors upon all the stockholders except Ellen Gregg Ingalls, for Ellen Gregg Ingalls was a beneficiary under R. I. Ingalls, Sr.'s will and that the contracts provided that the company could purchase the stock for $470 per share and at the time of Ingalls' death the stock was reasonably worth $1,000 per share. That if the company had exercised the option it would have greatly increased the value of the stock owned by the stockholders and their aliquot ownership of the company. That by not exercising the option, Ellen Gregg Ingalls was enriched at the expense of all of the other stockholders. That the action taken by the directors was properly rescinded by a resolution adopted by the directors on December 30, 1952, and that on that date a resolution was adopted to exercise said option. That since that date the treasurer of the company has tendered the contract price to the executors of the estate of R. I. Ingalls, Sr. and that the company has at all times since said tender been ready, willing and able to deliver said sum to the executors and that the executors have failed or refused to accept the tender and have refused to deliver to the company the certificates of stock. Respondents pray that all the legal owners of the stock in the Ingalls Iron Works Company be made party respondents and that the court will find that the option on the stock owned by R. I. Ingalls, Sr. at the time of his death has been duly exercised and that the certificates evidencing the ownership of said stock are the property of the Ingalls Iron Works Company and that the executors of Ingalls' estate be required to surrender said certificates to the company.
Complainants demurred to the answer and cross-bill, in so far as the same is treated as a cross-bill. The lower court sustained the demurrer and from this ruling respondents appeal. The demurrer was addressed to the cross-bill as a whole "and to each paragraph thereof, separately and severally, and to each phase and aspect thereof, separately and severally." This court has repeatedly held that this is a demurrer to the bill as a whole. Thompson v. Hanna, 262 Ala. 467, 80 So. 2d 267; Smith-Howard Gin Co. v. Ogletree, 251 Ala. 366, 37 So. 2d 507; Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So. 2d 11; First Nat. Bank of Birmingham v. Bonner, 243 Ala. 597, 11 So. 2d 348. And the ruling of the lower court sustaining the demurrer must be reversed if any aspect is good. Tyler v. Copham, 245 Ala. 151, 16 So. 2d 316.
The contracts executed by the aforesaid stockholders were in fact option contracts. The corporation was given the right to exercise or to release the option. The averred legal effect of said contracts is a mere conclusion of the pleader, and inconsistent with the actual effect of the contracts, which were made exhibits to and incorporated in the bill of complaint.
Directors owe a duty of managing the corporate affairs honestly and impartially in behalf of the corporation and all of the stockholders. Sellers v. Head, 261 Ala. 212, 73 So. 2d 747; Van Antwerp Realty Corporation v. Cooke, 230 Ala. 535, 162 So. 97. However, we have determined that the directors had the right to exercise or to release the option involved in the present cause. The answer does not aver *41 any facts which show that it was not in the interest of the corporation to release the option; and the mere fact that the board released its right to the stock thereby indirectly enriching one stockholder, whereas if it had exercised the option it would have thereby increased the value of the stock owned by all of the stockholders and their aliquot ownership of the company, does not as a matter of law amount to fraud or maladministration on the part of the directors which would render the action taken by them voidable.
Equity Rule 26, as amended, Code 1940, Title 7, Appendix, provides in part:
"When the presence of parties other than those to the original bill is required for the granting of complete relief, such outside persons may be made defendants to a cross-bill incorporated in the answer or otherwise."
This rule has been interpreted by this court to mean that the mere bringing in of new parties whose presence is necessary to the granting of complete relief is sufficient justification for a cross-bill seeking affirmative relief. Adam v. Mathieson Alabama Chemical Corp., 262 Ala. 166, 77 So. 2d 667; McAllister v. Catchings, 210 Ala. 392, 98 So. 303.
It has been determined that the corporation had the right to exercise or to release the option involved in this cause, and the question raised in this cause is whether the option has been exercised or released. The mere fact that the action taken on this contract by the board of directors will indirectly and incidentally affect the stockholders, does not make the stockholders necessary or proper parties in this cause.
As appellants argue, the property of a corporation is treated in equity as owned by the stockholders (Riley v. Bradley, 252 Ala. 282, 41 So.2d 641); however, the stockholders are not necessary or proper parties in a cause involving a corporate contract, solely because the assets of the corporation were used in furnishing the consideration for said contract. Riley v. Bradley, supra.
There was no error in sustaining the complainants' demurrer to the cross-bill.
Elesabeth Ridgely Ingalls and Barbara Gregg Ingalls, minors under the age of 21 years, by their guardian, R. I. Ingalls, Jr., sought to intervene in this cause. The complainants demurred to the complaint of intervention. The lower court sustained the demurrer and dismissed the application, and from this ruling the intervenors appeal.
The complaint of intervention shows that Elesabeth Ridgely Ingalls owns 55 shares of common stock in the Ingalls Iron Works Company, and that she and Barbara Gregg Ingalls are cestui que trustents of several trusts, the corpus of which consists of stock in the Ingalls Iron Works Company.
Intervention in equity is regulated by the provisions of Equity Rule 37 and § 247, Title 7, Code of Alabama, and both the rule and the statute provide for intervention by one who has an interest in the matter in litigation. Rollins v. Deason, 263 Ala. 358, 82 So. 2d 546.
Stockholders may intervene in actions against the corporation only when the corporation refuses to defend or fails to defend in good faith. Ex parte Gray, 157 Ala. 358, 47 So. 286, 131 Am.St.Rep. 62; 13 Fletcher, Cyc. Corp. (Perm.Ed.) §§ 5853-5858; 18 C.J.S. Corporations § 560, p. 1276; Annotation, 33 A.L.R.2d 473. The complaint of the applicants does not in any respect show that the directors of the Corporation are not adequately defending this cause.
We have determined that the Corporation had the right to exercise or to release the option involved in this cause. The question involved in this cause is whether or not the option has been released. Such determination will indirectly and incidentally affect the applicants as stockholders. *42 However, this does not make the applicants necessary nor proper parties in the absence of showing that the Corporation is not adequately defending this cause. When the applicant is neither a necessary nor a proper party, intervention is not permissible. Rollins v. Deason, supra.
There was no error in sustaining the demurrer to the bill of intervention and dismissing the cause.
It results that the three decrees appealed from are affirmed.
Affirmed as to all three decrees.
LAWSON, STAKELY, and MERRILL, JJ., concur. | May 9, 1957 |
a7c16d76-6f94-4846-969c-b4201a09dcaf | Estes v. City of Gadsden | 94 So. 2d 744 | N/A | Alabama | Alabama Supreme Court | 94 So. 2d 744 (1957)
Hoyt ESTES et al.
v.
CITY OF GADSDEN et al.
7 Div. 331.
Supreme Court of Alabama.
March 7, 1957.
Rehearing Denied May 9, 1957.
*746 Hawkins & Rhea, Gadsden, and Kerr & Cain, Alabama City, for appellants.
Roberts & Orme and Lusk, Swann & Burns, Gadsden, for appellees.
STAKELY, Justice.
Plaintiffs in this case (appellants) seek a declaratory judgment and injunction against the enforcement of Municipal Ordinance No. 1758 enacted by the Board of Commissioners of Gadsden on June 2, 1956, and the rules and regulations adopted by the city for the enforcement of the ordinance. The case was submitted for final decree on the original complaint as amended, answer as amended of the defendants and on the testimony heard orally before the court, all as noted by the register.
Upon a consideration of the matter Judge Robert M. Hill, who was specially assigned to this case, entered a final decree upholding the validity of the ordinance. In connection with the final decree he filed an able opinion to which we shall not hesitate from time to time to refer.
The ordinance imposes an annual license fee for the privilege of engaging in or following any trade, occupation or profession within the corporate limits of the city and covers all salaried or wage-earning employees. It applies to any clerk, laborer, tradesman, manager or official, or other employee, including nonresidents of the city, where the relationship of employer-employee exists, who are engaged in the doing of any kind of work or the rendering of any kind of personal services or the holding of any kind of position or job within the city, provided the work or services are done within the city. It does not include those businesses, professions or occupations already covered by a prior adopted general license schedule, Ordinance No. 1749. Domestic servants employed in private homes and ministers of religion are exempted.
The ordinance prescribes the measurement of the tax to be: "One percent of the gross receipts of each such person" and gross receipts is defined to "include the total gross amount of all salaries, wages, commissions, bonuses, or other money payment of any kind, or any other consideration having monetary value, which a person receives from, or is entitled to receive from or be given credit for by his employer for any work done or personal service rendered in any trade, occupation or profession, including any kind of deductions before `takehome' pay is received. * * *" Allowances for traveling and other expenses incurred for work done for the employer are not included in gross receipts as to amounts actually so spent.
Provision is made in the ordinance for the allocation of compensation where only a part of it is earned within the city. *747 Other sections provide for withholding of the license fee by employers; the making of returns by employees under certain conditions; the enforcement of the ordinance by the City Director of Revenue or agent who is given authority to examine books, papers and records of employers and licensees; the city commission is given the authority to prescribe and adopt by resolution rules and regulations for enforcement. There are other provisions in the ordinance which need not be here specifically referred to except that the ordinance contains the usual severability clauses and a clause providing that all conflicting ordinances are repealed to the extent of any conflict existing. The effective date of the ordinance is fixed at July 1, 1956, and it is further provided that the ordinance shall be in force and effect from year to year thereafter until repealed.
The rules and regulations for the most part follow rather closely the wording of the authority given in the ordinance itself. They provide questionnaire procedures, establish a test for determining whether relationship of employer-employee exists, define an individual contractor as distinguished from an employer, and reiterate that partners of a firm or an officer of a firm or corporation shall pay the tax if he receives a salary for personal services rendered in business.
It should be clearly understood at the outset that the wisdom, propriety or expediency of the ordinance is not a matter for review by this court. That is the province of the law-making body of the city. The court's duty is to consider the constitutionality and the validity of the ordinance under the constitution and laws of the State of Alabama.
I. We must first determine what we may consider a preliminary contention to the effect that the ordinance was defectively passed in that some of the provisions of § 422, Title 62, Code of 1940, and possibly that some of the provisions of §§ 456, 462, Title 37, Code of 1940, were not observed. However, as shown by the amended minutes introduced in evidence, all statutory requirements were observed in the passage of the ordinance. It is argued that the amendment is of no avail because it is not an effort to make the original minutes speak the truth as to what actually happened, but only reveals that on July 31, 1956, the city went through a formality attempting to do then what it had not done on the date of passage of the ordinance, June 2, 1956. It appears, however, from the amended minutes that the minutes of June 2, 1956, were "amended nunc pro tunc to correct and actually set forth what was said and done at such meeting," referring to the meeting of June 2, 1956. The court found that no intervening rights of third persons arose in the interim and, therefore, the city commission, had the right to amend, if such was necessary, to make the minutes speak the truth. We may add there is nothing before the court to indicate that the minutes do not speak the truth. The fact that the amendment was made after this suit was filed is immaterial. Harris v. Town of East Brewton, 238 Ala. 402, 191 So. 216; City of Guntersville v. Walls, 252 Ala. 66, 39 So. 2d 567.
II. It is earnestly insisted that the ordinance levies a tax not authorized or permitted by the constitution or the general law of Alabama. We observe here that municipalities and counties being political subdivisions of the state have no inherent power of taxation but have only such taxing power as is delegated to them by the legislature. But "upon them, in the absence of special constitutional restriction, the general assembly may confer the taxing power in such measure as it deems expedient,'in other words, with such limitations as it sees fit as to the rate of taxation, the public purposes for which it is authorized and the objects (the persons and *748 property) which shall be subjected to taxation.'" Frazier v. State Tax Commission, 234 Ala. 353, 175 So. 402, 403, 110 A.L.R. 1479.
Under § 733, Title 37, Code of 1940, authority is granted by the legislature to cities to fix and collect licenses for any business, trade and profession in the exercise of its police power. In § 735, Title 37, Code of 1940, the legislature has provided that, "All municipalities shall have the power to license any exhibition, trade, business, vocation, occupation, or profession not prohibited by the constitution or laws of the state, which may be engaged in or carried on in the city or town * * *. The power to license conferred by this article may be used in the exercise of the police power as well as for the purpose of raising revenue * * *." In the instant case the parties agree and the court found that the tax in question is not levied under the police power, § 733, Title 37, Code of 1940, but is a revenue measure.
Section 89 of the Constitution of 1901 prohibits municipalities from passing any laws inconsistent with the general law of the state. In the case of Smalley v. City of Oneonta, 253 Ala. 663, 46 So. 2d 201, 203, in dealing with a privilege license of bricklayers within the city, this court said:
In Van Hook v. City of Selma, 70 Ala. 361, this court also said: "The power of the State to authorize the license of all classes of trades and employments cannot be doubted. And there is just as little doubt of the power to delegate this right to municipalities, either for the purpose of revenue, or that of regulation. Ex parte City Council [of Montgomery], in re Knox, 64 Ala. 463; Cooley on Const.Lim. 581."
It is argued that the tax involved in the instant ordinance is in reality either an income tax or a property tax and not a license or privilege tax and as such is prohibited by § 214 of the Constitution which limits property taxes to 65/100th of one percent on the value of taxable property and is otherwise unauthorized and as such is also prohibited by § 216 of the constitution, which limits the rate of taxation by a municipality including the City of Gadsden. In the case of Eliasberg Bros. Mercantile Co. v. Grimes, 204 Ala. 492, 86 So. 56, 59, 11 A.L.R. 300, this court held that income was property within the meaning of § 214 *749 of the constitution and held invalid a graduated tax of two to four percent on incomes imposed by the Revenue Act of 1919. Under the income tax amendment to the constitution in 1933, Amend. No. 25, an income tax was enacted by the state but this court in the Eliasberg case made the distinction between income and property taxes on the one hand and occupation or privilege taxes on the other. This court in the foregoing authority said:
The ordinance which is now before the court lays the tax upon the privilege of working and rendering services within the city and measures the value of the privilege by the amount of gross receipts of each person. It is true that the character of any tax should be determined by its incidences and not by the name given it or necessarily the language used. In Evers v. City of Dadeville, 258 Ala. 53, 61 So. 2d 78, 82, it is pointed out that "The sale tax is `a privilege or license tax against the person.'"
This court in a case dealing with a privilege tax on hotels said in the case of Mobile Battle House v. City of Mobile, 262 Ala. 270, 78 So. 2d 642, 643, that, "There is no merit in the assertion that the municipalities of this state are without legislative authority to so frame their ordinances as to make gross receipts the basis of the computation of a license." The court then quoted § 735, Title 37, Code of 1940, to the effect that "all municipalities shall have the power to license any exhibition, trade, business, vocation, occupation or profession not prohibited by the constitution or laws of the state, which may be engaged in or carried on in the city or town * * * to require sworn statements as to the amount of capital invested, or value of goods or stock, or amounts of sales or receipts where the amount of the license is made to depend upon the amount of capital invested, or value of goods or stock or amount of sales or receipts * * *."
In the case of Nachman v. State Tax Commission, 233 Ala. 628, 173 So. 25, 31, this court said:
In the case of Town of Guntersville v. Wright, 223 Ala. 349, 135 So. 634, it was held that a fee for the privilege of delivering gasoline in the city by one whose place of business was without the city was valid and the tax was stated to be a license tax.
In the case of Sanford Service Co. v. City of Andalusia, 256 Ala. 507, 55 So. 2d 856, *750 this court approved a tax fixed by city ordinance on the act of delivering gasoline within the city from a point without the city and state by one not otherwise engaged in business in the city. The court found this tax to be an excise tax. Likewise in State v. Pure Oil Co., 256 Ala. 534, 55 So. 2d 843, a tax of one-half of one percent of gross sales of lubricating oil in quantities of twenty-five gallons or more, was sustained as a privilege for so selling oil within the city.
It will be observed that the amount of the instant tax is measured entirely by gross receipts and, therefore, it is argued that this shows that this is an income tax. But this provision is merely a manner of measuring the tax.
To summarize the situation, we think that the tax in question is not a property or income tax but is a privilege tax or license tax within the power of the city to enact. It is insisted that the legislative intent and historical concept regarding licensing by cities does not extend to the licensing of an individual of his right to earn a living or his act of performing duties as an employee. We call attention again to the proposition that the power given cities by the legislature in § 735 is unequivocal in words without any language restricting or qualifying its exercise, except that it must not offend the general law and Constitution of the State. In other words exhibitions, trades, businesses, vocations, occupations and professions appear to this court as to the trial court to be sweeping in coverage.
The right to earn a livelihood is an inalienable right guaranteed by the Bill of Rights but it does not operate to relieve from taxation as against an expressed grant of power. City of Louisville v. Sebree, 308 Ky. 420, 214 S.W.2d 248. It will be recalled that in the Smalley case, supra [253 Ala. 663, 46 So. 2d 203], this court used the following language, "Because the employment is for lawful gain and is a natural and inherent right does not exempt it from being a taxable event."
It is seriously argued that the instant tax is in classification unreasonable, capricious and discriminatory. In the case of Frazier v. State Tax Commission, 234 Ala. 353, 175 So. 402, 406, 110 A.L.R. 1479, this court said:
It has been oftentimes stated that classification under the constitution is necessarily elastic, except that it should be made according to reasonable, just and practical rules. If the selection is neither capricious nor arbitrary and rests upon some reasonable consideration of difference or policy as between the various groups and individuals taxed in the city, the courts have held that the classification is proper and that there is no denial of the equal protection of the law. Equal protection is satisfied when all persons of the same class fairly made are subject to the same amount and terms of such tax laws. Smalley v. City of Oneonta, supra.
In State v. Pure Oil Co., 256 Ala. 534, 55 So. 2d 843, 847, it is said:
In the case of State v. Pure Oil Co., supra, in dealing with the question of classification five tests for legitimate classification under the taxing power are set forth. The appellants insist that the classification in the instant case does not meet these tests and fails in that it does not bring within its influence all who are under the same condition and apply equally to each person or member of the class and that it is not based on substantial distinctions which make one class different from another. However, if a city or state has the power to levy a privilege license on the doing of all work or performing of all type services, we believe it unreasonable to exact of the people's lawmaking body that they provide a distinct and separate classification for the many, many different types of work done and services rendered which people are capable of doing and which they in fact do. For example some plumbers or architects or accountants are self employed and offer their services to the general public. Others do not do this but hire out to a specific employer. Does the fact that there may be some plumbers, architects, accountants, who fall in the first group of self employed persons, and some architects, accountants or plumbers who fall in the second group, mean there is no substantial distinction which makes the one class different from the other? The fact that the employee group is salaried or wage-earning, whereas the other group is not, would provide the substantial distinction which makes the one class different from the others and brings within the influence all who are under those same salary or wage earning conditions and applies equally to all in the class at the rate of one percent. See Cary v. City of Bellingham, 41 Wash. 2d 468, 250 P.2d 114, at page 116. Furthermore, we see no reason why, for example, plumbers, architects or accountants must each be put in a separate class, because of a difference in the nature of their respective work. Each can, of course, be put into a separate classification and if so, why can they not be put in the same class if they are all paid by an employer and draw their pay in the City of Gadsden?
III. As to the amount of one percent levied, this court has just held that the extent of the burden is a matter for the discretion of the lawmakers, unless the act is so arbitrary as not to be an exercise of the taxing power at all, the form of the tax being a cloak for something else. Bessemer Theatres v. City of Bessemer, 261 Ala. 632, 75 So. 2d 651.
IV. It is argued that the ordinance discriminates against independent contractors and others by the prior adopted general license schedule No. 1749 of the city. The law does not require exact equality but only requires uniformity on all those within a class. Here it is put on a percentage basis of one percent. It appears though from Ordinance 1749 that self employed persons and businesses of various kinds are also taxed with a privilege tax, some with definite amounts whether they make any net profits or not, some on graduated scales if gross receipts exceed certain amounts, all of whom, contrary to the case of employees, must pay expense in the operation of their trade or business. Doubtless there may be inequalities but our courts are committed to the proposition, as stated by the Supreme Court of the United States in Lawrence v. State Tax Commission, 286 U.S. 276, 284, 52 S. Ct. 556, 559, 76 L. Ed. 1102, as follows:
V. The clause in the statute authorizing licenses "not exceeding one year" refers merely to the term of the license. The city had authority to prescribe its license schedule to run from year to year. Woco-Pep Co. of Montgomery v. Town of Wetumpka, 221 Ala. 565, 130 So. 72.
VI. It is insisted that discrimination exists in the ordinance since domestic servants in private homes and ministers of recognized religious bodies are exempted. Domestic servants in the Alabama Workmen's Compensation Law and in the Alabama Unemployment Compensation Act are exempted and it does not appear that the classification in those statutes have ever been held to offend the law of equality and uniformity. This court approves the reasoning of the court in the case of City of Louisville v. Sebree, 308 Ky. 420, 214 S.W.2d 248, 256. In that case it was said:
VII. It is claimed that the withholding provision of the ordinance and rules are void and illegal. This contention appears to be answered to the contrary by this court in the case of Beeland Wholesale Co. v. Kaufman, 234 Ala. 549, 174 So. 516, wherein a like provision in the Alabama Unemployment Compensation Law was reviewed and approved.
Just as the trial court held, we, too, believe that the ordinance in question of the City of Gadsden must be upheld.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | March 7, 1957 |
b0b8cb05-4c22-4c51-937b-e1e6051080e4 | Glencoe Paving Company v. Graves | 94 So. 2d 872 | N/A | Alabama | Alabama Supreme Court | 94 So. 2d 872 (1957)
GLENCOE PAVING COMPANY, Inc.
v.
John GRAVES, State Comptroller, et al.
3 Div. 785.
Supreme Court of Alabama.
February 21, 1957.
Rehearing Denied April 25, 1957.
*873 Files Crenshaw and Hill, Hill, Whiting & Harris, Montgomery, for appellant.
John Patterson, Atty. Gen., and J. Noel Baker, Asst. Atty. Gen., for appellee State.
Lange, Simpson, Robinson & Somerville and Wm. H. Cole, Birmingham, amici curiae, in support of appeal.
SIMPSON, Justice.
Glencoe Paving Company, Inc., suffered a judgment of nonsuit because of adverse rulings of the trial court and brings this appeal.
Glencoe filed a petition in the Circuit Court of Montgomery County for a writ of mandamus to require John Graves, as Comptroller of the State of Alabama, to pre-audit and pay or appear and show cause why he should not pay a voucher for the sum of $12,989.41 alleged to be due the appellant from the State of Alabama. The appellant claims said sum, as payment for 1,642.15 tons of asphalt plant mix furnished the State at $6.91 per ton and as payment for spreading the same amount of plant mix on the highways of the State of Alabama at $1 per ton, pursuant to purchase orders from the State.
The Comptroller filed an answer to the petition admitting the correctness of the appellant's claim. For further answer the Comptroller stated that he had been advised by the Attorney General of the State of Alabama not to pay said voucher because the contract, under which the appellant asked payment, allegedly was entered into in violation of the competitive bid law of the State.
The Attorney General intervened in the cause claiming that the stated contract was entered into in violation of Title 50, Code of Alabama 1940, as amended, by Act No. 492, Gen. Acts of Alabama, 1947, which requires competitive bidding for "public improvements."
The Comptroller filed an answer to the Attorney General's complaint of intervention averring, inter alia, that the contract under consideration did not violate Title 50, as amended, because the contract was for the purchase of materials and not for a "public improvement."
The appellant demurred to the answer of the Comptroller to his petition, demurred to the Attorney General's complaint on intervention, and demurred to the answer of the Comptroller to the complaint on intervention. The trial court overruled all of the demurrers and stated in its ruling:
The question posed by this appeal is whether asphalt plant mix, spread on the highways of the State by the vendor as a re-surface of said highways, must be purchased by competitive bidding dictated by the provisions of Title 50 of the Code, as amended, or may the State purchase the labor and materials through the Department of Finance, Division of Purchases and Stores under the provisions of Chapter 4 of Title 55, Alabama Code of 1940.
The Attorney General advances two theories to support his contention that the instant contract should have been awarded by competitive bids. His first argument is that the re-surfacing of an asphalt highway does not constitute a mere repair or maintenance of such highway, but is instead a "public improvement" under our case law. The argument is also advanced that every repair is a "public improvement" under our statutory law and that every contract for repair must, therefore, be made in compliance with Title 50, as amended. We will consider the latter theory first.
Title 50, Code of 1940, both before and after the 1947 amendment, requires contracts for "public improvements" to be awarded by competitive bid. The point of difference is what constitutes a "public improvement."
There is no doubt that repairs to highways were "public improvements" for the purpose of the competitive bid law prior to the passage of Act number 492, General Acts of Alabama, Regular Session, 1947. Act number 492 repealed §§ 1 to 15 of Title 50 and substituted new sections now codified as §§ 15(1) to 15(13) of Title 50, therefor.
Section 14 of Title 50 as it existed prior to the passage of Act number 492, supra, provided:
Hence under the above provision, repairs to roads were "public improvements" for the purpose of the competitive bid law prior to the passage of Act number 492, supra.
Section 15(13) of Title 50, which was substituted by Act number 492, supra, for Section 14 of Title 50 is:
We note that the part of the definition of a "public improvement," which read "roads * * * to be repaired * * * or maintained," was left out of § 15(13), supra, the prevailing law on the subject.
To summarize then, prior to the amendment, § 14 of Title 50 defined a "public improvement," for the purpose of this case, as being "roads * * * to be repaired or constructed or maintained;" and the amendment, which is presently found in § 15(13) of Title 50, defines a "public improvement," for the purpose of this case, as being "roads * * * to be constructed," with no mention of repairs to roads.
*875 But the Attorney General cogently argues that repairs to roads are still "public improvements" under § 15(13), Title 50, supra. To support this conclusion he seeks to apply the rule of statutory construction, "expressio unius est exclusio alterius," (the expression of one thing is the exclusion of another). Under this maxim, if a statute specifies one exception to a general rule, there are no other exceptions to the rule, and the Attorney General argues that since Title 50, § 15(13) excludes "repairs, alterations, and renovations by institutions controlled by boards of trustees of [sic] similar boards," "public improvements" include repairs to roads, such repairs not being expressly excluded from the operation of the statute.
The legal maxim, expressio unius est exclusio alterius, expresses a rule of construction and not one of substantive law; and, its only service is as an aid in discovering the legislative intent when such intent is not otherwise manifest. United States v. Barnes, 222 U.S. 513, 32 S. Ct. 117, 56 L. Ed. 291; Jordan v. City of Mobile, 260 Ala. 393, 71 So. 2d 513; Austin v. State, 36 Ala.App. 690, 63 So. 2d 283.
In fact, all rules for construing statutes must be regarded as subservient to the end of determining the legislative intent; and such intent must be determined from the language of the statute itself if it is unambiguous. State v. Thames, Jackson, Harris Co., 259 Ala. 471, 66 So. 2d 733; Dixie Coaches v. Ramsden, 238 Ala. 285, 190 So. 92.
We have said, when construing a competitive bid law of a county, that the repeal of a provision requiring competitive bids by the deletion of such provisions from a later act or amendment operates as an express repeal of the earlier provisions; and, that statutes requiring competitive bids should be strictly construed. Mitchell v. Walden Motor Co., 235 Ala. 34, 177 So. 151.
It is the view of this court, after much study and deliberation, therefore, that by expressly repealing the Code section which included repairs to roads in the definition of a "public improvement" and substituting therefor a definition of "public improvement" leaving out repairs to roads, the legislature clearly expressed its intention of excluding repairs to roads from the operation of the competitive bid law.
We are further reinforced in our conclusion by the legislative history of Act Number 492, supra, and of course for the purpose of ascertaining the legislative intent, we may look to the legislative history when interpreting a statute. Haralson v. State, 260 Ala. 473, 71 So. 2d 79, 43 A.L.R. 2d 1343; City of Birmingham v. Hendrix, 257 Ala. 300, 58 So. 2d 626; Blair v. Greene, 246 Ala. 28, 18 So. 2d 688. Looking to the legislative history of Act number 492, we find that the definition of a "public improvement" in the act as originally passed by the House of Representatives was substantially the same as the definition of a "public improvement" then appearing in the Code; i.e., it included roads to be constructed or maintained. House Journal, Alabama 1947, p. 1763. The Senate rejected the bill as passed by the House and then passed a substitute bill which defined a "public improvement" as here pertinent, as roads to be constructed. Senate Journal, Alabama 1947, p. 1838. This substituted bill passed the Senate with 28 yeas and no nays. Senate Journal, supra, p. 1839. The Act was then sent back to the House where it passed, without any further changes, by 57 yeas and no nays. House Journal, supra, p. 2313.
It seems clear to us from the above legislative history of said Act number 492, that the legislature intended to exclude repairs and maintenance of roads from the definition of a "public improvement."
*876 Several affidavits, which are a part of the pleadings in the case, indicate that the established administrative interpretation by the State Highway and Finance Departments of Act number 492, ever since its passage in 1947, has been that asphalt plant mix is a material which may be purchased by purchase order; and that it is not a "public improvement" which would invoke the requirements of Title 50, Code of 1940, as amended. The construction placed on a statute by the officers authorized to construe and administer the law is entitled to favorable consideration where such statute is ambiguous or of doubtful meaning, and where such construction has for many years controlled the conduct of public business. Miller v. State, 249 Ala. 14, 29 So. 2d 411, 172 A.L.R. 1356; Dixie Coaches v. Ramsden, supra.
And there is a strong presumption as to its correctness where such a construction has been followed for a long time. Ex parte Darnell, 262 Ala. 71, 76 So. 2d 770.
We reiterate our opinion, therefore, that the statute of Alabama, as it exists today, does not require competitive bids for the purchase and spreading of asphalt plant mix in the re-surfacing of already existing highways.
We have carefully analyzed the cases relied on by Attorney General to sustain his position, but in our view they are not supportive. It is significant to note that each case on this point of law was decided under the provisions of a particular statute of the jurisdiction involved.
In oral argument before the Court, the Attorney General alluded to a Wisconsin case which holds that a paving contract to re-surface certain streets, which did not comply with their competitive bid law, was void and no recovery could be had on the contract. Bechthold v. City of Wauwatosa, 228 Wis. 544, 277 N.W. 657, 280 N.W. 320, 321. But the applicable portion of the statute provided:
The natural effect of the holding there was, of course, that the re-surfacing of a street with asphalt is a "public work" under their statute and that a contract for such re-surfacing must be let by competitive bid. We are constrained to believe that the Supreme Court of Wisconsin would not have arrived at the same result had their statute been similar to the one of instant concern.
A further canvass of the Wisconsin law discloses that the court intimated in the Bechthold case, supra, that the contractor should bring an action for unjust enrichment saying, "In that form of action such rights and equities as the contractor has can be worked out and determined." And a later Wisconsin case holds that the purchase of road oil and asphalt for use in repairing city streets did not constitute "public work" within the above Wisconsin statute requiring the city to let by contract to lowest responsible bidder all "public work", the estimated cost of which shall exceed $500. Standard Oil Co. v. City of Clintonville, 240 Wis. 411, 3 N.W.2d 701.
Another case, cited in brief and strongly relied on by the Attorney General for the proposition contended for is State ex rel. Stateler v. Reis, 38 Minn. 371, 38 N.W. 97, which held that street sprinkling is a local improvement within the meaning of § 1, Article 9, of the Constitution, M.S.A., for which an assessment may be levied upon the property fronting on the street. We do not regard this case as apposite. The court seems to have rested its conclusion on the theory that:
Several cases cited by the State define an "improvement" as it relates to real estate, but do not shed any light upon what constitutes a "public improvement" for the purpose of the highways. The remaining cases cited by the Attorney General, in support of the proposition of law under discussion, relate to statutory construction, void contracts, severability of contracts, or non-recovery on the quantum meruit theory.
The appellant, Glencoe Paving Company, contends that the re-surfacing of a highway with asphalt is a repair or maintenance as opposed to a "public improvement" for the purpose of the competitive bid law. A Nebraska case very similar factually to the instant case is Cheney v. County Board of Sup'rs. of Buffalo County, 123 Neb. 624, 243 N.W. 881, 882. In that case the Supreme Court of Nebraska held that the re-surfacing of a gravel highway with another layer of gravel constituted a repair rather than a "public improvement." The pertinent statute there provided:
The court held that ordinary gravel resurfacing was a repair and that a repair was not a public improvement within the meaning of the competitive bid law of that state. The Court thus rationalized:
Two other cases analogously supportive of the appellant's position hold that the re-surfacing of a street with new asphalt constitutes a repair and not an "improvement" which could be assessed against the abutting property owners. City of New Haven v. Whitney, 36 Conn. 373; City of Covington v. Bullock, 126 Ky. 236, 103 S.W. 276.
The Supreme Court of Arkansas, also for the purpose of a tax assessment, held that re-surfacing a highway with seven, inches of gravel, in addition to regrading and widening the highway was only repair and maintenance work. Higginbotham v. Road Improvement Dist. No. 3 of Lonoke County, 154 Ark. 112, 241 S.W. 866. And a later Arkansas case, Cowan v. Thompson, 178 Ark. 44, 9 S.W.2d 790, held that to re-surface dirt roads with gravel and to put a thin layer of Warrenite on existing silica roads constituted repairs. These cases do not involve a competitive law, and, for that reason are useful to us only to show how courts define and distinguish "repairs" and "improvements" as these terms are applied to streets and highways.
*878 The Supreme Court of Arkansas in the Higginbotham case, thus reasoned:
And it was stated in the Whitney case that the "repair of a highway (and macadamizing is but a mode of repair) is not in any sense a public work or improvement."
In 40 C.J.S. Highways § 208 c(3), p. 95, the following is stated:
Laws requiring contracts to be let by public authorities to the lowest responsible bidder are designed to protect the public against collusive contracts and to prevent favoritism toward contractors by public officials. Such contracts tend to secure fair competition upon equal terms to all bidders, and to close all avenues to favoritism and fraudalthough no fraud is alleged or shown herein its various forms. And it may be that our statutes should require competitive bidding on contracts for repairs and maintenance of our highways, but that cannot be a matter for our concern, but one for the legislature, if so desired.
These final observations seem appropriate.
While we hold that contracts for repairs or maintenance on highways are not required to be let on competitive bids because 1947 Act. No. 492 omits the words "repairs" and "maintenance" from the definition of public improvements, this decision is on pleadings without evidence. Appellant's ultimate right to relief will depend on the facts as finally determined by the pleadings and proof.
We, of course, review the case as the parties have presented it, and even though the pleadings could not be commended as models of perspicuity, we have treated them as argued. It would seem that the answer of the Comptroller to the petition for mandamus was favorable to the appellant; so also his answer to the Attorney General's petition for intervention. Hence the action of the trial court in overruling the appellant's demurrers thereto will not be reviewed. The intervention petition of the Attorney General, however, controverts the petition, but as hereinabove pointed out does not constitute a sufficient answer to it. The demurrer of the appellant, therefore, to the petition of intervention, should have been sustained. The learned trial court held to the contrary resulting that the judgment must be reversed, the order of nonsuit set aside, and the cause restored to the docket for further proceedings not inconsistent herewith.
Reversed and remanded with directions.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | February 21, 1957 |
db8ff60a-e6dd-4df4-a5bf-8da9eb98aef5 | Blankenship v. Blankenship | 94 So. 2d 743 | N/A | Alabama | Alabama Supreme Court | 94 So. 2d 743 (1957)
Gussle Mae BLANKENSHIP
v.
Clarence Don Q. BLANKENSHIP.
7 Div. 336.
Supreme Court of Alabama.
March 14, 1957.
Rehearing Denied May 9, 1957.
Roger F. Rice, Birmingham, for appellant.
Beddow, Gwin & Embry and Roderick Beddow, Jr., Birmingham, for appellee.
LAWSON, Justice.
The wife (appellant here) on October 12, 1955, in an uncontested proceeding, secured a decree of divorce from the husband (appellee) on the ground of crueltyactual violence upon her personand was awarded the custody of the child, a boy then four years of age, with the right of the father to visit the child at reasonable times and for the child to visit him. The husband was ordered to pay the wife the sum of $50 monthly for the care, maintenance and support of the boy. The provisions of the decree relative to custody and payment for support of the child were in accordance with a written agreement signed by the husband and wife on June 1, 1955, wherein it was stated, among other things: "That the Complainant [wife] is a fit and proper person to have the care, custody and control of their minor child," etc.
On February 6, 1956, the divorced husband, Clarence Don Q. Blankenship, married another woman and shortly thereafter on or about July 3, 1956, he filed a petition seeking modification of the provisions of the original decree dealing with the custody of the four-year-old boy and with payments for his care, maintenance and support.
After a hearing where the testimony was taken orally, the trial judge rendered a decree of modification wherein it was provided *744 in part as follows: "The care, custody and control of the minor child, Donald Ray Blankenship, is hereby awarded to the respondent, Clarence Don Que Blankenship, provided, however, that the complainant herein the mother of said minor child shall have the custody of said child between the hours of nine o'clock a. m., and six o'clock p. m., on the second and fourth Sundays of each month, and the respondent herein is hereby ordered to deliver said custody to said complainant and procure said child from the custody of said complainant each such second and fourth Sunday of each month." The original decree was further modified so as to require the father to pay only $10 per month to the mother for the support and maintenance of the boy during the periods of time he is allowed to be with her. From the decree of modification the mother has appealed to this court.
We are not going to set out the testimony in this case, for to do so would serve no useful purpose. Hill v. Gay, 252 Ala. 61, 39 So. 2d 384. However, we have read the record with considerable care and although we are not too impressed with the testimony of the appellee and his hired detective concerning the appellant's conduct since the original decree was entered, such testimony, if true, would in our opinion justify the trial court's conclusion that "it would be to the best interests of the minor child" that his custody be awarded to the father.
As shown above, the testimony was taken orally before the trial court and the credit to be given to the testimony of the witnesses was for his determination. His finding, under the rule that prevails, has the weight of a jury verdict which this court will not disturb unless plainly and palpably wrong and contrary to the great weight of the evidence. Gardiner v. Willis, 258 Ala. 647, 64 So. 2d 609; Johnson v. Johnson, 215 Ala. 487, 111 So. 207; Hill v. Gay, supra; Hale v. Hale, 259 Ala. 666, 68 So. 2d 63. While we have some doubt as to the credit to be given the testimony of appellee and his detective, we cannot say after a careful study of the record that the decree of the trial court is palpably and plainly wrong.
References are made in brief of appellant to rulings of the court on the admission and exclusion of evidence, but such references do not arise to the dignity of argument and, hence, we have not felt inclined to deal with them specifically. However, we are of the opinion that none of the rulings so referred to would warrant a reversal of the decree.
The decree is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | March 14, 1957 |
c618545a-0b52-4f32-b246-aba815137543 | Roberts Construction Co. v. Henry | 93 So. 2d 498 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 498 (1957)
ROBERTS CONSTRUCTION CO.
v.
C. L. HENRY, Jr.
6 Div. 39.
Supreme Court of Alabama.
March 7, 1957.
*500 Lange, Simpson, Robinson & Somerville and Wm. L. Clark, Birmingham, for appellant.
Maurice F. Bishop and Robt. S. Richard, Birmingham, for appellee.
STAKELY, Justice.
C. L. Henry, Jr. (appellee) instituted a suit in the Circuit Court of Jefferson County in which Roberts Construction Company, a corporation (appellant), was named with numerous other parties as defendant. All of the parties defendant with the exception of Roberts Construction Company, a corporation, Birmingham Rock Bit Company, Inc., a corporation, and Chicago Pneumatic Tool Company, a corporation, were eliminated prior to the trial of the case.
The case was submitted to the jury on three counts,Count 1 as amended, Count 2 as amended and Count A. Count 1 as amended charges that on to wit June 30, 1954, plaintiff was driving his automobile upon a public street in the City of Albertville, Alabama, and that on said occasion, an agent, servant or employee of the defendants negligently injured the plaintiff by so negligently operating a motor vehicle and air compressor unit which was attached thereto, that the air compressor unit was caused or allowed to crash into the automobile in which the plaintiff was driving.
Count 2 as amended charges that an agent, servant or employee of the defendants negligently injured the plaintiff by so negligently attaching an air compressor unit to a motor vehicle then and there being driven or operated by said agent, servant or employee of the defendants, that the air compressor unit was caused to become disengaged and crash into plaintiff's automobile.
Count A of the complaint charges that the defendants Roberts Construction Company had in its possession and under its control under a rental or purchase option agreement from the defendant Birmingham Rock Bit Company, a corporation, a certain air compressor unit and attachment which *501 were manufactured by the defendant Chicago Pneumatic Tool Company, a corporation, and alleges that the plaintiff's alleged injuries or damages were sustained as a proximate consequence of the negligence of the defendant Chicago Pneumatic Tool Company in that it manufactured or assembled said air compressor unit with a defective or dangerous tow bar attachment and the negligence of the defendant Birmingham Rock Bit Company in that it sold or leased to the defendant Roberts Construction Company the said air compressor unit and tow bar attachment when it knew or should have known that said tow bar attachment was defective or dangerous and was unsafe to be pulled or towed over the public streets and the negligence of the defendant Roberts Construction Company in negligently permitting or negligently causing the air compressor unit to be operated upon the public streets while said air compressor unit and the attachment thereto was in a defective and dangerous condition.
The pleading of the defendants was in short by consent. The jury returned a verdict in favor of the plaintiff and against the defendant Roberts Construction Company (appellant) and assessed the plaintiff's damages in the sum of $37,950. The court entered a judgment accordingly. Under the verdict rendered the court entered judgment in favor of the defendants Chicago Pneumatic Tool Company and Birmingham Rock Bit Company. The defendant Roberts Construction Company filed a motion for a new trial, which the court overruled. The defendant Roberts Construction Company followed with this appeal.
We may summarize the principal questions presented upon this appeal as follows. (1) Did the trial court err in submitting the case to the jury as to the defendant, Roberts Construction Company, under Counts 1 and 2 of the complaint as amended, as to which the court directed the jury not to return a verdict in favor of the plaintiff and against the other defendants? (2) Did the trial court err in overruling the defendant's objection to certain alleged improper or prejudicial statements made by counsel for the plaintiff during the closing argument of the trial? (3) Did the trial court err in permitting, over the defendant's objection, a certain witness to express the conclusion that it was dangerous and unsafe for an air compressor unit to be towed upon the public streets in a certain manner? (4) Did the trial court err in refusing to give to the jury, at the request of the defendant, certain written instructions duly requested by the defendant? (5) Did the trial court err in overruling the defendant's motion for a new trial?
On the morning of June 30, 1954, at about 6:30 o'clock A. M., C. L. Henry, Jr. (appellee) left his home in Albertville on the way to work. He was driving his Chevrolet automobile along East Main Street in the City of Albertville in what appears to be an admittedly careful manner, well on his side of the street, which was thirty-one feet wide. As he approached 614 East Main Street, an International Truck of the defendant, Roberts Construction Company, driven by its employee, was going slightly down-grade in the opposite direction and pulling or towing a 3,300 pound air compressor. As the truck reached a point almost even with the car of C. L. Henry, Jr. (appellee), the air compressor unit broke or became disengaged from the truck pulling it, crossed over East Main Street on its wrong or left side of the street and ran into the side of the automobile of C. L. Henry, Jr., which was almost if not against the curb on its right side of the street. Pictures introduced in evidence appear to show the tire marks of the Henry car against the curb on his side of the street. C. L. Henry, Jr. (appellee) pulled himself to the ground between the sidewalk and the curb. He was removed to the hospital in Albertville by ambulance where he was treated by Dr. H. L. Rogers, Chief Surgeon of the hospital. He was *502 later examined by Dr. H. Earle Conwell, an eminent orthopedic surgeon of Birmingham. The personal injuries suffered by C. L. Henry, Jr. (appellee) will be described later.
The complete history of the air compressor was developed during the trial. Tendencies of the evidence show that the tow bar had not been broken or welded when in the possession of any person or firm who had possession of it prior to the delivery of it to the Roberts Construction Company on April 3, 1954. On the contrary Roberts Construction Company undertook to show by introducing pictures of a fractured or broken tow bar taken in Pittsburgh that the tow bar had been fractured or broken "at the point of a defective weld," the cause being careless and incompetent welding.
Tendencies of the evidence further show that on the morning of the collision the Superintendent of Roberts Construction Company, one Smith, instructed the driver one Horace Williams to "hook up the air compressor at the air port and take it to the job some miles distant." The truck had two pieces of steel [a hitch with a hole in them]. It was "rigged up" so that the eye of "the tow bar could be placed between these two pieces and a pin made out of a welding rod could be dropped down between the pieces." Tendencies of the evidence show that at the time of the accident the front wheel of the 3,300 pound tow bar air compressor was on the ground and not retracted. The air compressor is manufactured so that the front wheel can be retracted when moving it over the streets and highways by raising the wheel and inserting a pin in a hole to keep it in a raised position when being moved. After the compressor is delivered to location the tongue or tow bar is raised and the front wheel is lowered by removing the pin that held it up during movement.
The testimony of expert witnesses with fifteen to thirty years experience tended to show that in the moving of air compressors from job-site to job-site, it was "unsafe", "irregular" and "not a customary practice" to move an air compressor with the front wheel down. One of these witnesses testified that it is not customary or standard practice to move an air compressor with the front wheel down and that if you do "something will break." Another of these witnesses testified that he considered it "very dangerous and very unsafe" to move an air compressor with the front wheel on the ground. There was other testimony to the same effect.
According to the evidence it appears to be undisputed that the air compressor was being pulled without any safety chains. Tendencies of the evidence show that it was a dangerous and unsafe practice to move an air compressor over the public streets without safety chains. The Superintendent of Warren Brothers Road Construction Company for the past fifteen years testified that it was customary to move air compressors over the streets from job-site to job-site and that it was and is the customary practice to use and require safety chains and that the use of safety chains "was a general safety practice."
There was other expert testimony of a similar nature and one of these witnesses testified that if the tow bar broke you would not lose the compressor if you had safety chains. That is the purpose of safety chains.
There was testimony tending to show that when various witnesses reached the point of collision immediately thereafter, no part of a tow bar eye or connection was in the hitch on the rear of the truck and there were no pieces on the street at the scene of the accident. One of the witnesses for the Roberts Construction Company testified to the contrary.
The testimony appears to be undisputed that the air compressor became disengaged from the towing vehicle, crossed the street and crashed into the automobile of C. L. Henry, Jr. (appellee) with such force that the tow bar pierced the steel side of his *503 automobile at the left front door and entered his car.
I. Appellant's assignment of error number one is based upon the refusal of the court to give to the jury at the request of the appellant, Roberts Construction Company, the following written charge:
It will be recalled that Count 1 of the complaint charges that "an agent, servant or employee of the defendants, while acting within the scope of the duties of his employment, negligently injured the plaintiff and negligently damaged his automobile by so negligently operating," etc. So far as we can ascertain there was no evidence introduced upon the trial of the case which showed that the defendants were operating the truck and air compressor which was being towed on the occasion of the accident. We think it clear that the evidence showed that the appellant, Roberts Construction Company, was the only defendant responsible for the operation of the equipment that was involved in the accident with the plaintiff's automobile. We should keep in mind that the case proceeded to trial against three defendants, namely, Chicago Pneumatic Tool Company, the manufacturer of the air compressor; Birmingham Rock Bit Company, who leased or sold the air compressor to the appellant Roberts Construction Company, and Roberts Construction Company, the sole defendant against which the verdict was returned. The trial court directed a verdict in favor of the Chicago Pneumatic Tool Company as to all counts of the complaint. The trial court also directed the jury not to return a verdict against Birmingham Rock Bit Company under either count one or count two of the complaint. The case was submitted to the jury as to the appellant, Roberts Construction Company, a corporation, under Count 1, Count 2 and Count A.
The appellant insists that a party cannot proceed against two or more defendants jointly under one count of the complaint and against each of them separately in other counts. Therefore, it is strongly contended, that the court was in error in its refusal to direct the jury that it could not return a verdict against the appellant, Roberts Construction Company, a corporation, under Count 1 of the complaint.
The case of McMahen v. Western Union Telegraph Co., 209 Ala. 319, 96 So. 265, is cited by the appellant to support its position or claim. In order to understand the matter under discussion the difference between the foregoing authority and the instant case, should be immediately pointed out. In the McMahen case the plaintiff sued the telegraph company and the Louisville and Nashville Railroad Company for delay in transmitting a telegram. Count One claimed damages against both defendants and set up their joint liabilities. Subsequently the plaintiff added counts charging each of the defendants individually. Obviously that constituted a misjoinder and the attention of the trial court was directed thereto by specific demurrers pointing out that each count did not state a cause of action against all defendants. In the case at bar no such situation exists and each count of the complaint in the present case states a good cause of action against each defendant. The McMahen case involved a proper ruling on demurrers since the complaint was defective but in the instant case counts one and two charge that "an agent, servant or employee of the defendants while acting within the scope of the duties of his employment, negligently injured the plaintiff, etc. * *."
It is claimed by the appellant that an effort is made in the present case to circumvent the rule recognized in the McMahen case by averring in the complaint facts which evidently were known to be untrue and thereby charging a cause of action against the defendants jointly where the *504 causes of action or at least some of them were several and not joint. It is argued that if the attorney for the plaintiff did not know the true facts as substantially set forth in Count A, then he should have elected at the close of the testimony or at least when he became advised that the court would submit the case to the jury against more than one defendant under Count One, whether he would proceed against all of the defendants under Count A of the complaint or against Roberts Construction Company (appellant) under Count One of the complaint.
We are not willing to say that the court was in error in refusing to give Charge 3. There was no motion to strike Count One as sham. See 71 C.J.S., Pleading, § 460 P. 948. By filing various counts of a complaint the pleader is allowed considerable latitude in order to cover any tendency which the evidence might take and which can be regarded as a basis of recovery. Certainly a pleading will not be stricken as sham unless it is set up in bad faith and without color of fact and every reasonable doubt must be resolved in favor of the pleading. 71 C.J.S., Pleading, § 460, p. 948.
There was no improper joinder of Count one as amended under allegations that the plaintiff was injured by the negligence of the defendants. There is no doubt that where several defendants are joined in an action, the plaintiff is entitled to go to the jury as to that defendant against whom he has made out his case, although a directed verdict may be ordered as to the others. § 139, Title 7, Code of 1940.
In Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 735, 11 L.R.A.,N.S., 670, suit was brought against two defendants for assault and battery. This court said:
In F. W. Woolworth Co. v. Erickson, 221 Ala. 5, 127 So. 534, 536, it is said:
There was no error in the refusal of the court to give Charge 3 as requested by the appellant, Roberts Construction Company.
*505 II. The same argument is made by the appellant as to the giving of Charge 4, which is as follows:
It is obvious that the same basic question is presented with reference to Charge 4 as was presented with reference to Charge 3. It is sufficient to say that there was no error in refusing to give Charge 4.
III. In the opening argument to the jury counsel for the plaintiff listed various items of damage that were related by the witnesses and which he claimed were established by the evidence. It seems that counsel for the defendant Roberts Construction Company, Incorporated (appellant) did not respond to the remarks made by counsel for the plaintiff and counsel for the plaintiff in the closing argument made the following statement:
Counsel for Roberts Construction Company objected to the foregoing argument. The court overruled the objection to which exception was reserved. It is insisted that the argument of counsel for the plaintiff was in effect that the defendants, including appellant, admitted that the plaintiff was entitled to recover the sum of $38,256.50.
We do not agree with appellant's position. Counsel for the plaintiff merely invited counsel for the defendants to point out any element or item for which they felt there should be no recovery. No objection was taken to this statement. It does not seem to us that the situation in any way amounted to an admission as to the amount of the damages. It was just a method or way in which counsel for the plaintiff presented the claim of the plaintiff. This court in a number of instances has discussed the propriety of various remarks made to the jury in argument. For example, in Birmingham Electric Company v. Cleveland, 216 Ala. 455, 113 So 403, 408, it was said:
In Smith v. Reed, 252 Ala. 107, 39 So. 2d 653, 657, it is said:
The Alabama Constitution, section 10, secures to the parties the right to have their counsel in addressing the jury "to select and pursue their own line of argument, their own method of dealing with the testimony." Cross v. State, 68 Ala. 476.
In Louisville and Nashville Railroad Company v. Tucker, 262 Ala. 570, 80 So. 2d 288, 295 this court said:
See also Wheeler Motor Co. v. Stringer, 222 Ala. 494, 133 So. 10; Ex parte Messer, 228 Ala. 16, 152 So. 244.
There was certainly nothing inflammatory about the statement and we think the court was clearly not in error in overruling the objection.
IV. During the direct examination of the witness O. R. Johnson, witness for the appellant, counsel for the appellant handed the witness the eye of a tow bar which the appellant contended during the trial was the tow bar on the compressor on the morning of the accident. The tow bar eye handed to the witness was in evidence for the visible inspection of the jury and pictures of it were also in evidence. The witness was asked the following question:
The court sustained the objection to the foregoing question.
The witness to whom the question was addressed was a welder for the defendant, Roberts Construction Company. He had no more authority to state whether the tow bar eye had any marks thereon than the jury because the eye was in evidence and pictures of it were in evidence for the personal examination of the jury. They could examine the piece which was in evidence for themselves. The question at best called for testimony such as was noted in Norwood Clinic v. Spann, 240 Ala. 427, 199 So. 840, 843, that "The evidence may also be said to be in respect to a matter of common knowledge, as to which the court would not be put in error for either admitting or rejecting it."
In Capital Motor Lines v. Gillette, 235 Ala. 157, 177 So. 881, 885, this court said: "Opinion evidence is not admissible touching matters the jury is as competent to judge as the witness." See also Pollard v. Rogers, 234 Ala. 92, 173 So. 881.
Assuming only for the sake of argument that the testimony sought to be elicited from the witness was admissible, the action of the court in sustaining the objection to the question does not in our opinion warrant a reversal. In Bates v. Rentz, 262 Ala. 681, 81 So. 2d 349, 351, this court said:
There was no error in the action of the court in sustaining the objection to the question propounded.
V. The defendant's witness Smith testified on direct examination that when the air compressor was at the air port on the morning in question, "the front or dolly wheel was approximately a foot or eighteen inches off the ground." But upon cross examination he testified that he did not remember whether the front wheel was up or down when the compressor left the air port. Mr. Henry described "the little wheel in front that I saw wobbling along." He was asked the following question *507 to which he gave the following reply: "Q. Was it (the front wheel) on the ground? A. Yes, sir."
The witness William C. Warfel was asked the question, "Can you explain to the jury why it would be very dangerous and very unsafe to move an air compressor with the third wheel on the ground?" to which the witness gave the following answer: "There is always the likelihood that it might hit something. This wheel isn't designed to be towed that way, and that wheel being lower down, there would be the tendency for that to hit there and might hit a raised place in the ground or the road and cause the thing to upset."
We consider that there was no error in permitting an admittedly qualified expert witness to testify that in his opinion it would be unsafe to move an air compressor over the streets with the front wheel on the ground and our view is the same where the witness testified that it is unsafe practice to move an air compressor over the public streets without the safety chains and with the front wheel on the ground and not retracted.
Our attention is called to the recent decision by this court in Alabama Great Southern R. Co. v. Bishop, 89 So. 2d 738, 744, where this court held that it is error to admit expert opinion evidence on "a matter of common knowledge" and that the subject there under examination, "e. g., a crevice in the crossing (any more than a hole in the sidewalk or street) does not require expert opinion that it would be safe or unsafe for pedestrians." We consider that that is a case and a situation different from that here involved. Whether a sidewalk, street or railroad crossing, which juror or pedestrians cross every day, is in a reasonably safe or unsafe condition for such pedestrians, is a matter within the common knowledge of those jurors and one which they personally experience daily. But we do not think this is true where we are dealing with a situation as to towing a 3,300 pound air compressor to be used in a specialized construction undertaking. Rather we think that whether a qualified expert may give his opinion as to the safety or danger of an air compressor being towed without safety chains and with the front wheel down instead of retracted, is governed by the decision of this court in Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604, 607, which was cited with approval in the recent case of Alabama Great Southern R. Co. v. Bishop, supra. In the Burnwell Coal Company case, supra, the plaintiff contended that it was not safe to operate a mine car without a drag or a latch and this court approved expert testimony on that matter, saying: "An expert witness, qualified to that end, may give his opinion as to the safety or danger of a place or an appliance, when that issue is involved on the trial." See also Southern Coal & Coke v. Swinney, 149 Ala. 405, 42 So. 808; Edwards v. Southern Ry. Co., 233 Ala. 65, 169 So. 715, 106 A.L.R. 1133; Atlantic Coast Line R. Co. v. Hardwick, 239 Ala. 58, 193 So. 730.
To summarize we do not consider that the operation and towing of a 3,300 pound air compressor over the street is a matter of common knowledge like the condition of a hole in the street or sidewalk or a crevice in a railroad track. In addition to the foregoing, we refer to a statement contained in The Law of Evidence in Alabama by Judge McElroy, Third Edition, viii, as follows:
We call attention to the provisions of § 437, Title 7, Code of 1940, as follows:
There was no error committed by the court in ruling as it did on the matter here discussed.
VI. We note that no exceptions were taken to the court's oral charge. It is sufficient to say with reference to Charge 24, that it was fully covered by the court's oral charge as well as by other written charges given by the court.
Charge 25 is misleading in that it ignores the negligence of the appellant in failing to provide safety chains and in towing the air compressor with the front wheel on the ground and in ignoring an insecure coupling and defective hitch. It may also be said that eliminating the misleading portions this charge was covered by the oral charge.
Charges 30, 31 and 32 were each covered by the court's oral charge and the written charges given by the court.
VII. It is argued that the court was in error in overruling the motion for new trial on the ground that the verdict was excessive. We do not agree.
The plaintiff was 43 years of age at the time of the collision and was employed as a warehouseman. At that time he had a life expectancy of 26.01 years according to the Commissioner's Standard Ordinary Mortality Table and a life expectancy of 25.27 years according to the American Experience Table of Mortality. We will not undertake to set out in detail the testimony relating to the injuries of the plaintiff. It is sufficient to say that Dr. H. L. Rogers, who had been the family physician of the plaintiff, testified that before the accident the plaintiff appeared to be a normal healthy man but that the collision and resulting injuries had inflicted a nervous disability resulting in a loss of twenty pounds in weight. His testimony showed that plaintiff required medical treatment several times a week and that he knew nothing that "could totally eliminate his pain in his foot and leg. His testimony showed that both ankles had been broken. It appears to be undisputed that for the balance of his life the plaintiff will have to endure pain. His job opportunities appear to be restricted. He will be obliged to walk slew-footed the balance of his life and will have to live with that disfigurement. His nervous condition has been permanently impaired. He is a small man and has lost more than twenty pounds. He cannot sleep at night and will never be able to walk any distance or stand for any length of time without great pain.
Dr. Conwell, who is an eminent orthopedic surgeon, testified, "Yes, sir, he will have pain, no doubt about it." And he added that medical science knew of nothing that could eliminate his pain. Under his advice the left leg was reset and another cast applied. His left leg is permanently injured. It has little lateral or medial movement.
We have authorities which from time to time have stated the law on the issue of adequate compensation to an injured plaintiff. This law was summarized in the recent case of Louisville & Nashville R. Co. v. Tucker, 262 Ala. 570, 80 So. 2d 288, and need not be here again set out. It will be recalled that the court who heard the evidence and saw the plaintiff refused to set aside the verdict and we find nothing that indicates that the verdict was the result of passion, prejudice, corruption or mistake. In short, as we stated at the outset, we find no error in the ruling of the court refusing to set the verdict aside.
It results that the judgment of the lower court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | March 7, 1957 |
ed726546-4dbd-4bf4-8554-eb6731e30d11 | British General Insurance Co. v. Simpson Sales Co. | 93 So. 2d 763 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 763 (1957)
BRITISH GENERAL INSURANCE COMPANY, Ltd.
v.
SIMPSON SALES COMPANY, Inc.
6 Div. 615.
Supreme Court of Alabama.
March 21, 1957.
*765 Marvin Williams, Jr., Davies & Williams, Birmingham, for appellant.
Victor H. Smith, A. W. Jones and Pritchard, McCall & Jones, Birmingham, for appellee.
GOODWYN, Justice.
This is the third time this dispute has been before this court. The first appeal is reported as Simpson Sales Co. v. British General Insurance Co., 252 Ala. 337, 40 So. 2d 409, where we held that counts VII and X, the same counts in the present appeal, were not subject to demurrer interposed thereto, and that there was no error in overruling plaintiff's motion to strike certain allegations of those counts. The cause was reversed and remanded because of the erroneous rulings of the trial court in sustaining the demurrer of the defendant to these counts. The second appeal was of the same style, and reported in 257 Ala. 289, 58 So. 2d 591, in which it was held there was reversible error for the trial court to give the affirmative charge with hypothesis for the defendant. The present appeal is from a judgment for the plaintiff rendered on a jury verdict in a retrial of the case following the second reversal. The facts are set out in the second case, 257 Ala. 289, 58 So. 2d 591, with sufficient scope to indicate the basis of this opinion. Apparently the only additional evidence offered was by the defendant in support of its contention that the continuing of insurance coverage on property moved outside the area covered by the general agent's authority was not the usual course of business of insurance agents. Testimony as to the practices of other firms was excluded by the trial court. However, the procedure and custom of the defendant's agent in this respect, in representing the defendant company, was allowed.
The essential question for our determination on this appeal is whether we will adhere to the principles laid down when the case was here on second appeal, 257 Ala. 289, 58 So. 2d 591. Appellant insurance company insists that what was there said "is contrary to the long settled law of this state with reference to territorial limitations on the authority of an agent", citing in support Insurance Co. of North America v. Thornton, 130 Ala. 222, 30 So. 614, 55 L.R.A. 547, and Sun Insurance Office of London v. Mitchell, 186 Ala. 420, 65 So. 143. In referring to these cases in the second appeal of the instant case this court said [257 Ala. 289, 58 So.2d 592]:
The opinion then continues as follows:
As is required of us we have reviewed the case anew on this appeal without regard to the former decisions in the case. Code 1940, Tit. 13, § 28; Lattimer v. Stratford, 259 Ala. 405, 406, 66 So. 2d 720; Lucas v. Lucas, 258 Ala. 515, 519, 64 So. 2d 70; Wilkey v. State ex rel. Smith, 244 Ala. 568, 579, 14 So. 2d 536, 151 A.L.R. 765; Birmingham News Co. v. Birmingham Printing Co., 213 Ala. 256, 258, 104 So. 506. We do not find that there is any conflict between our present views as to the law of the case and the rulings on the law in the former opinions, supra, 252 Ala. 337, 40 So. 2d 409; 257 Ala. 289, 58 So. 2d 591.
Appellant relies on the Thornton and Mitchell Cases, supra, to support the proposition that "territorial limitations on the authority of a general agent of an insurance company are effective and binding even on uninformed third persons". However, on the second appeal in the instant case this court held that the rule of the Thornton Case, as modified by the Mitchell Case, does not extend to transactions which occur in the territory assigned to an agent, affecting property already validly covered by a policy issued by him, insuring property then within his territory but being moved beyond it, when such transactions are appropriate or usual incidents of such business, and when the insured has no knowledge of such limitations and deals with the agent in good faith in a way which would be prejudicial to give effect to the limitations. Further, that the affirmative charge should not have been given if the circumstances and course of business of the Franklin agency in Birmingham justified an inference by plaintiff as a member of the public that it would be appropriate for a general agent to make such stipulation under the circumstances, or that it was within the usual course of business of such an agency to do so.
Thus there are two tests which may be applied. If either is found to exist, then the plaintiff is entitled to recover. The first is whether it was the usual course of business of such an agency to make such stipulation. The second is whether the circumstances justified an inference by plaintiff as a member of the public that it would be appropriate for a general agent to make such a stipulation. As bearing on the second test, we quote the following from Syndicate Insurance Co. v. Catchings, 104 Ala. 176, 188, 16 So. 46, 50:
Whether or not the circumstances justified an inference by the plaintiff as a member of the public that it was appropriate for the agent to make the stipulation that plaintiff's property would continue to be covered on removal to Tennessee was a question within the province of the jury.
In Johnson v. Shook & Fletcher Supply Co., 245 Ala. 123, 132, 16 So. 2d 406, 415, we find quoted with approval the following from Mechem on Agency, § 290, viz:
In this case the evidence was not in dispute that the general agent of the defendant insurance company had no actual authority to make such a contract. The evidence was in dispute as to whether or not defendant's agent did make the contract, the agent denying any such conversation with the plaintiff whereby he was notified of the move and agreed to extend coverage, whereas the plaintiff's agent testified that he did so inform defendant's agent who agreed that coverage would continue on removal. There was no dispute that the usual custom of this insurance company's agent was not to make such a contract.
Under this state of the facts, in view of the conflicting evidence surrounding the circumstances of the conversations between agents of the plaintiff and defendant, we think it was a question of fact for the jury's determination as to whether the plaintiff, acting with ordinary prudence and reasonable diligence, should have regarded the agreement which plaintiff claims was made, to be "of such an unusual and improbable character" as to put him on notice of the agent's limited authority. And the same can be said with respect to the question as to whether or not the agreement was an appropriate or usual incident of such business, as viewed by the plaintiff as a member of the public.
Appellant says that to approve the rule as here laid down "would lead to most astounding results"; that an agent might even insure property located in China or Ceylon and the company would have no effective control over him. We are not impressed by these arguments. In the first place it is too well-settled to require more than a passing nod that if an agent fails to perform his agreement, whether by exceeding, violating, or neglecting his instructions, he will ordinarily be liable to the principal for the loss sustained thereby, unless the violation has been waived or the wrongful act ratified. Phoenix Insurance *768 Co. v. Seegers, 192 Ala. 103, 108-110, 68 So. 902; Adams v. Robinson, 65 Ala. 586, 591. The company has the power to determine the conditions of the agency. It may protect itself as it sees fit by requiring surety bond. It may terminate its contract at the first sign of infidelity. It has within its power the determination of what persons shall represent it. In short, it has all the advantages of selection and must bear the burdens thereof if it has failed to choose one faithful to the agency agreement. On the other hand, we have the public, dealing with the agent of the company. In the public view, the agent is the company. Where a member of the public deals with the agent without notice of the limitations on the agent's real authority as to territorial jurisdiction the burden should not be placed on the insured of inquiring into the agent's real authority to continue coverage of an insured's property which is moved from a location within the agent's territorial authority to a place outside such authority.
During the closing argument, the defendant duly objected and reserved exceptions to the following portions of the argument of plaintiff's counsel, viz:
We do not think these remarks were so improper and prejudicial as to justify a reversal of the trial court. It is generally held that it is improper to ask the jury to divest themselves of their impartial position and place themselves in the shoes of the plaintiff. Kahn v. Green, Tex.Civ.App., 234 S.W.2d 131; F. W. Woolworth Co. v. Wilson, 5 Cir., 74 F.2d 439, 98 A.L.R. 681; 53 Am.Jur., Trials, § 496, p. 401 (authorities cited by appellant).
*769 However, we have said that we "will not too narrowly criticize arguments of counsel in the matter of inferences drawn for illustration or figures of speech adopted in pressing a point." Louisville & Nashville R. Co. v. Tucker, 262 Ala. 570, 578, 80 So. 2d 288, 295; Jones v. Colvard, 215 Ala. 216, 218, 109 So. 877. Nor should we encroach on the trial court's discretion in the matter of argument of counsel. "Much must be left in such matters to the enlightened judgment of the trial court, with presumptions in favor of the ruling." Smith v. Reed, 252 Ala. 107, 112, 39 So. 2d 653, 657; Birmingham Electric Co. v. Mann, 226 Ala. 379, 381, 147 So. 165, 166.
Regardless of the propriety or impropriety of the remarks of counsel in the case at bar, we do not feel there has been a showing of injury to appellant requiring a reversal. As stated in Birmingham Electric Co. v. Perkins, 249 Ala. 426, 430, 31 So. 2d 640, 642:
From the record as a whole we cannot say it affirmatively appears that the argument objected to was probably prejudicial to appellant.
The judgment is due to be affirmed. So ordered.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | March 21, 1957 |
6d91cc22-6aef-4076-bc92-3218d74fc0e6 | McCary v. McMorris | 92 So. 2d 319 | N/A | Alabama | Alabama Supreme Court | 92 So. 2d 319 (1957)
Nell McCARY
v.
Frank McMORRIS.
6 Div. 5.
Supreme Court of Alabama.
January 17, 1957.
*320 Fred Blanton, Birmingham, for appellant.
Pritchard, McCall & Jones and Victor H. Smith, Birmingham, for appellee.
MERRILL, Justice.
On October 26, 1954, appellant, Nell McCary, filed an ejectment suit against appellee, Frank McMorris, for Lot 12, according to the Nabers Land Company Survey of the 5th Addition to College Park. On March 4, 1955, the suit was removed to equity on application by McMorris where he became complainant and Mrs. McCary respondent.
Appellee's bill alleges that in 1941, Nabers Land Company, a corporation, was in possession of Lot 12; that he entered into an agreement with the Company to buy Lot 12 for $500 payable in weekly installments of $2; that he paid $10 down and the Company put him in possession of the lot and he had continuously remained in possession and had erected permanent and valuable improvements on the lot; that he paid the entire purchase price before the action in ejectment was commenced, but no conveyance had been made to him. In the alternative, he offered to pay any balance determined to be due. In Par. 5, the bill states:
Appellee prayed that the court find that he had paid for the lot, that respondent be required to deliver a deed to him and that the ejectment suit be dismissed. He also offered to do equity and to pay any balance which might be ascertained to be due by him.
Respondent's demurrer to the bill was overruled and she answered claiming that a lease sale contract had been entered into but that complainant had defaulted in the payments, not having made any since 1951, and that she, on January 13, 1954, gave complainant notice that she had elected to terminate the lease sale contract. She denied that the complainant had fully paid the contract and averred that he still owed $380 plus taxes due on the property.
The evidence was taken ore tenus and, upon submission of the cause, the trial court found that appellee had a valid contract with Nabers Land Company for the sale of Lot 12 to him, that he had paid the full consideration to the Company before the commencement of the action of ejectment; that he was entitled to a conveyance from appellant, which she was ordered to execute, and that the suit at law be dismissed. It is from this decree that appellant appeals.
It is urged that the trial court should have sustained the demurrer to the bill on the grounds that the bill showed a lack of necessary parties respondent and for vagueness and indefiniteness. We have held that to be a necessary and indispensable *321 party to a bill in whose absence the court will not proceed to a final decree, one must have a material interest in the issue which will be necessarily affected by the decree before it will be said that the court may not proceed in his absence. Hodge v. Joy, 207 Ala. 198, 92 So. 171.
Assuming, without conceding, that the references in the bill to Nabers Land Company would indicate that it should also have been a party respondent, and that the allegations of paragraph 5, quoted supra, did not show fully that appellant had succeeded to all rights and liabilities of the Company respecting Lot 12, any error in overruling these grounds of demurrer was without injury, because the undisputed evidence was that Nabers Land Company, a corporation, had been dissolved by order of court and that court had ordered the receiver and the officers of the corporation to convey to appellant "the entire right, title, claim and interest of Nabers Land Company, Inc., a corporation, subject to outstanding lease sale contracts heretofore duly executed and delivered" to certain lands including Lot 12, here in controversy. See Downer v. First Nat. Bank in Ft. Payne, 231 Ala. 523, 165 So. 758; Turner v. Turner, 261 Ala. 129, 73 So. 2d 549; Griffin v. Griffin, 206 Ala. 489, 90 So. 907; Boutwell v. Spurlin Mercantile Co., 203 Ala. 482, 83 So. 481; Hunter v. Taylor, 189 Ala. 104, 66 So. 671. We apply Supreme Court Rule 45, Code 1940, Tit. 7 Appendix, to equity cases and "will not reverse a decree unless in the opinion of the court, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected a substantial right." Lightsey v. Stone, 255 Ala. 541, 52 So. 2d 376, 385.
The other assignments of error raise the point that some of the testimony on which appellee had to rely was inadmissible under the "dead man's statute," T. 7, § 433, Code 1940.
Appellee introduced into evidence a passbook showing payments on what he contended was Lot 12 over a period from July, 1941, to January, 1951. Some of the entries were initialed by appellant when she worked for Nabers Land Company prior to 1947, and others were initialed by her former husband who was president of the company until its dissolution. The passbook was admissible as a business entry under T. 7, § 415, Code 1940. Warten v. Black, 195 Ala. 93, 70 So. 758. It is the testimony in connection therewith that is strenuously challenged.
The last five entries on the passbook were:
Appellee testified that he had started on the purchase of Lot 1 in the 5th Addition. At the time of the trial, W. N. McCary, the former husband of appellant and president of Nabers Land Company, was dead. Concerning the "paid in full" entry on the passbook, appellee testified that it was made in the office of the company; that Mr. McCary "pitched it over to his secretary and said mark paid in full," and that she did as he had directed. Appellee argues that this testimony is not admissible under the statute. We do not need to decide whether the statement of itself was admissible, because it did become so in this particular case irrespective of its initial competency.
The provisions of the statute exclude the living from testifying to any transaction between himself and the dead, in all cases where the effect of the evidence is to diminish the rights of the deceased, or those claiming under him, and where the presumption exists that the dead, if living, could explain, qualify or contradict. Hodges v. Denny, 86 Ala. 226, 5 So. 492. But there is an exception included in the statute. It is provided that a witness cannot testify as to any transaction with or statement by the deceased *322 person "unless called to testify thereto by the party to whom such interest is opposed, or unless the testimony of such deceased person in relation to such transaction or statement is introduced in evidence by the party whose interest is opposed to that of the witness, or has been taken and is on file in the cause."
The appellant filed interrogatories to appellee in the instant case and the court required them to be answered. Appellant's note of testimony included "answers to interrogatories to complainant." Interrogatory 10 was as follows:
The answer was:
We said in Brett v. Dean, 239 Ala. 675, 196 So. 881, 883:
Other cases holding the same are Jones v. Jones, 245 Ala. 613, 18 So. 2d 365; Cleckler v. Dawson, 243 Ala. 62, 8 So. 2d 415.
The court having seen and heard the witnesses, the presumption will be indulged in its favor, and its finding and decree will not be disturbed unless palpably wrong. There was ample evidence to support the decree rendered. Parkman v. Ludlum, 260 Ala. 235, 69 So. 2d 434. The decree is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | January 17, 1957 |
4fc8946e-6bce-4922-b8fd-4e4845dbdc35 | Donavan v. Fandrich | 92 So. 2d 1 | N/A | Alabama | Alabama Supreme Court | 92 So. 2d 1 (1957)
E. E. DONAVAN
v.
John S. FANDRICH.
2 Div. 348.
Supreme Court of Alabama.
January 10, 1957.
*2 Thos. Seay, Marion, for appellant.
Judson C. Locke, Marion, for appellee.
LAWSON, Justice.
In 1950 John S. Fandrich was engaged in the business of selling fertilizer and seed. His place of business was in Belvidere, Tennessee. On two occasions in July of that year E. E. Donavan bought large quantities of crimson clover seed from Fandrich. Donavan lived in Perry County, Alabama, where he had extensive farming interests. Donavan paid for the seed which he acquired in July of 1950.
On October 27, 1950, at his place of business in Tennessee, Fandrich delivered fifty-three bags (approximately 7,950 pounds) of crimson clover seed to one Fred Morrow to be hauled in the latter's truck to Donavan in Perry County, Alabama. Morrow delivered the seed to Donavan. Morrow, a colored farmer, lived in the vicinity of one of Donavan's farms and he had hauled to one of those farms some of the seed purchased by Donavan from Fandrich in July.
In August of 1953 Fandrich brought this suit in the circuit court of Perry County, stating his action in two counts. The first count is on an account stated and the second count is for "goods, chattels and merchandise sold by the plaintiff to the defendant on the 27th day of October 1950 etc." Both counts claim the sum of $2,385, but a credit of $200 is admitted.
Plaintiff's demurrers to defendant's pleas One and Four having been sustained, the cause went to the jury on the complaint and on defendant's pleas Two and Three, which the parties seem to have treated as amounting to the averment that the allegations of the complaint are untrue, the correct plea of the general issue in a case of this kind. See Espalla v. Richard, 94 Ala. 159, 10 So. 137.
There was jury verdict in favor of the plaintiff in the amount of $1,427.68, together with costs. Judgment was in accord with the verdict. Defendant's motion for new trial being overruled, he appealed to this court.
The testimony for the defendant below is to the effect that he did not buy the seed from plaintiff and that they were delivered to him in Perry County without any order from him; that after receipt of the seed he did agree to try to sell the seed and to pay plaintiff for those which he sold, but he made no sales; that through inadvertence seed of the value of $200 was planted and the payment made by him in November of 1951 was because of that incident. The defendant's contention was that he owed plaintiff nothing, except perhaps $150 for seed planted later.
We have searched the record with considerable care and we are unable to find any evidence which tends to justify a finding of the amount fixed by the jury and for which judgment was rendered. Where, as here, the jury verdict cannot be justified upon any reasonable hypothesis presented by the evidence, it ought to be set aside upon proper proceedings as being the result of compromise or mistake, for neither the court nor jury have the right to arbitrate or compromise differences between the parties. It is no adequate answer to say that a judgment for a larger amount might have been justified as a legal possibility. In this state of the case appellant's motion for a new trial should have been granted. Holcombe & Bowden v. Reynolds, 200 Ala. 190, 75 So. 938; Donaldson v. Fuqua, 232 Ala. 604, 169 So. 223; Winn Cigar Co. v. Wilson, 35 Ala.App. 466, 48 So. 2d 64; Metropolitan Life Ins. Co. v. Ray, 28 Ala.App. 357, 184 So. 282. Cf. Stremming Veneer Co. v. Jacksonville Blow Pipe Co., 263 Ala. 491, 83 So. 2d 224; Street v. Browning, 205 Ala. 110, 87 So. 527.
We will not consider the other assignments of error, but in view of another trial we point out that the general issue pleaded to the common counts puts in issue *3 every fact necessary to entitle plaintiff to recover. Denson v. Kirkpatrick Drilling Co., 225 Ala. 473, 144 So. 86. And under it defendant may prove any matter showing that plaintiff never had any cause of action or that he ought not to recover. Bryant v. De Kalb Warehouse Co., 260 Ala. 443, 71 So. 2d 51.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | January 10, 1957 |
18f81442-c1c3-41f2-b399-6ceadd7a8ed6 | White Way Pure Milk Co. v. ALABAMA STATE MILK C. BD. | 93 So. 2d 509 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 509 (1957)
WHITE WAY PURE MILK COMPANY
v.
ALABAMA STATE MILK CONTROL BOARD.
3 Div. 774.
Supreme Court of Alabama.
March 14, 1957.
*510 Gilchrist & Murphree, Decatur, for appellant.
No appearance for appellee.
LAWSON, Justice.
White Way Pure Milk Company, a partnership composed of C. E. Winton and Emmette L. Barran, referred to hereafter as White Way, is a distributor-licensee of the Alabama State Milk Control Board, hereafter called the Board.
On July 9, 1954, the Board entered its official order No. 348 requiring White Way to make restitution to producer-licensees of the Board the sum of $3,589.60 and to pay to the Board a fine of $1,000 or lose its license.
Order No. 348 in pertinent parts reads:
White Way sought and obtained a review of Order No. 348 by the circuit court of Montgomery County in the manner prescribed by § 226, Title 22, Code 1940, which section reads:
On July 9, 1956, the circuit court of Montgomery County rendered a judgment sustaining and affirming Order No. 348 in all respects. From that judgment White Way has appealed to this court.
No provision is made in § 226, Title 22, supra, or in any other parts of the laws which specifically relate to the Board, for review by this court of the judgment of the circuit court. However, an appeal from that judgment lies to this court by virtue of the provisions now codified as § 1074, Title 7, Code 1940.Ex parte Bracken, 263 Ala. 402, 82 So. 2d 629; Mayfield v. Court of County Commissioners, 148 Ala. 548, 41 So. 932; Lusk v. Capehart, 129 Ala. 599, 30 So. 31; Fountain v. State ex rel. Hybart, 208 Ala. 480, 94 So. 66. The appeal in this case was taken within the thirty days allowed by § 1074, Title 7, supra.
On this appeal we are governed by the same rules of review as was the circuit court. See Alabama Public Service Commission v. Decatur Transfer & Storage, Inc., 257 Ala. 346, 58 So. 2d 887. In other *512 words, we can "only consider such matters as contained in the petition" for certiorari filed in the trial court and we cannot reverse the judgment of the trial court unless we are convinced that under the issues properly presented by the petition for certiorari the trial court should have held that Order No. 348 of the Board is "unlawful and unreasonable." Of course, we consider only those matters properly before the trial court which have been correctly urged upon us by White Way, the appellant.
There is no merit in the contention of the appellant to the effect that the Board was without authority to order it (White Way) to make restitution to producer-licensees for underpayments or else suffer the loss of its license. In Ex parte Homewood Dairy Products Co., 241 Ala. 470, 475, 3 So. 2d 58, 63, we said: "We have no hesitancy in expressing the view that the board has no right under this act to render a personal judgment against defendant for the payment of money, and if it has done so, the circuit court on trying this case on certiorari will vacate and set it aside. But the board has the right to find that defendant has bought milk from certain producers at a price less than as prescribed, and to find the amount of the difference, and to order that if it is not paid to them each as reasonably required, defendant's license shall be thereby revoked." (Emphasis supplied) There is no statement in the Milk Control Board Law which expressly authorizes the procedure outlined in that part of the above quotation which we have italicized. However, all parts of the Milk Control Board Law, §§ 205-231, Title 22, Code 1940, as amended, should be construed together and when so construed we are clear to the conclusion that the statement which we have quoted from the Homewood Dairy Products Co. case is in accord with the legislative intent.
Section 210, Title 22, Code 1940, provides in part as follows: "The milk control board is hereby vested with the powers, and it shall be its duty * * * to investigate and ascertain the use to which the distributor or processor makes of all fluid milk purchased and to require the distributor or processor to pay for the said milk at the proper price, * * *." Section 217, Title 22, Code 1940, provides in part: "* * * The milk control board may grant or renew a license or may permit a licensee to retain his license conditioned upon the agreement of the applicant or licensee to do the things required by this chapter of him to do, or of any lawful order, rule or regulation of the board, * * *. The milk control board shall have the further power, in the event of such agreement and the subsequent failure of such licensee to comply with such agreement, to revoke such person's license the same as it might have done when said act of omission or commission was originally omitted or committed * * *." (Emphasis supplied) True, there has been no agreement on the part of White Way to make restitution to the producers from whom it obtained milk at a price admittedly less than that fixed by order of the Board. However, the provisions last quoted above clearly indicate the legislature intended for the Board to have the authority to condition its order of revocation of the license upon performance by the licensee of its obligations under the law to producers. This provision when construed in connection with that quoted from § 210, Title 22, evinces to us a clear legislative intent that the Board have the authority to make and enter an order which in effect directs the licensee to make restitution or suffer the consequences of having his license revoked.
However, we are convinced that Order No. 348 is "unlawful and unreasonable" in so far as it conditions the right of White Way to retain its license upon making restitution to producers of the sum of $3,589.60, which sum the order shows to have been based on the amount of milk which the Board found that White Way purchased from producer-licensees of the Board during the months of January and February of 1954. The "complaint" which *513 was served on White Way and which it was called upon to answer contains one "count" (6) which we think sufficient to apprise White Way that it was charged with having paid less than the minimum price fixed by the Board for all of the milk which it purchased from producer-licensees during the month of January, 1954, and the evidence clearly justifies a finding by the Board that during that month White Way purchased 974,052 pounds of milk for twenty cents per hundred weight less than the Board-fixed minimum price.
But there is no evidence as to how much milk was purchased by White Way during February of 1954 and we are at a loss to understand how the Board arrived at the figure of 1,794,800 as the number of pounds of milk so purchased by White Way during January and February of 1954. There is nothing in the record to even so much as indicate that in arriving at that figure the Board used records or reports in its files which were not introduced in evidence. In making this last observation we do not want to be understood as holding that such reports and records could have been properly used by the Board in making its finding unless introduced in evidence. A decision of that question is not necessary here. See 18 A.L.R.2d 552-593; Preston v. Preston, 253 Ala. 186, 43 So. 2d 398.
The review contemplated by the Alabama State Milk Control Board Law, supra, does not justify courts in making determinations as to whether the facts as found by the Board are supported by the evidence where there is some evidence on which to base a finding. But where there is no evidence to support a finding the courts must intervene, for then there has been a denial of due process. Morgan v. United States, 298 U.S. 468, 56 S. Ct. 906, 80 L. Ed. 1288; Alabama Power Co. v. City of Ft. Payne, 237 Ala. 459, 187 So. 632, 123 A.L.R. 1337; Ex parte Homewood Dairy Products Co., supra.
Aside from the fact that there is no evidence in this record to support the finding of the court that White Way purchased 1,794,800 pounds of milk during the months of January and February, 1954, there is no charge in the "complaint" which can be said to even remotely suggest that White Way's February purchases were in any way involved. All of the so-called "counts" which relate to the matter of underpayment assert that such course of action was pursued by White Way during "a period beginning January 1, 1954, and ending January 31, 1954."
It is the law that charges filed before an administrative agency need not be drawn with the same nice refinements and subtleties as pleadings in a court of record. Joyce v. City of Chicago, 216 Ill. 466, 75 N.E. 184; Davis v. Board of Registration, 251 Mass. 283, 146 N.E. 708. However, in a proceeding of this kind we believe that the requirement of due process limits the Board to a consideration only of those charges which it has included within the instrument which it has called upon a licensee to answer, whether that instrument be denominated a complaint, a notice or a rule to show cause. Spears Free Clinic and Hospital for Poor Children v. State Board of Health, 122 Colo. 147, 220 P.2d 872; Schyman v. Department of Registration and Education, 9 Ill.App.2d 504, 133 N.E.2d 551; Napuche v. Liquor Control Commission, 336 Mich. 398, 58 N.W.2d 118; Morgan v. United States, 304 U.S. 1, 58 S. Ct. 773, 999, 82 L. Ed. 1129.
Inasmuch as White Way was not called upon to defend its license because of underpayments made during the month of February, 1954, and because there was no evidence tending to show how much milk was purchased by it during that period of time, we are of the opinion that the Board erred in not limiting the condition upon which White Way might retain its license to the restitution of underpayments for the month of January, 1954, and the $1,000 fine. We feel constrained to this conclusion although a reading of the record made before the Board demonstrates beyond peradventure that White Way intentionally flaunted the *514 minimum price requirements of the Board, not only during January but also during the month of February, 1954, and it otherwise pursued a course of conduct in violation of rules and regulations of the Board which clearly warranted the imposition of the $1,000 fine.
White Way further insists that the Board was without lawful authority to impose a fine in addition to ordering a conditional revocation of its license. In support of this position reliance is had upon the following language found in § 217, Title 22, supra:
Appellant, White Way, asserts that the language just quoted limited the Board to either revoking its license or imposing a fine. It says that the Board could not do both.
But this argument we think overlooks the pertinent provisions of § 216, Title 22, which section (not § 217, Title 22) specifically provides for the revocation of a license because of a failure of a distributor to pay the price prescribed by the Board for milk secured from producer-licensees. We quote: "* * * In the event that any milk dealer, distributor or processor shall fail or refuse to pay for milk purchased from a producer * * * at the price fixed by the board for such milk, without just cause, the milk control board shall have the power to require such person to post a bond with the milk control board and payable to the milk control board with such security as may be approved by the milk control board in a sum equal to twice the amount of the total purchases of milk of such licensee for the past fifteen days, and in addition, such failure or refusal of such person shall constitute grounds for the revocation by the milk control board of his license or for a fine as hereinafter provided, one or both at the discretion of the milk control board." (Emphasis supplied) It is our opinion that the language just quoted clearly authorizes the Board to impose a fine as well as to revoke the license conditionally as was done in the case at bar.
While there is no provision in the Alabama Milk Control Board law which expressly authorizes the Board to order that restitution be made through the executive secretary and financial officer of the Board, we are of the opinion that the broad powers conferred on the Board and the duty imposed on it to see that the distributors pay the producer "the proper price" for his milk justifies this provision of the order of conditional revocation. We are aware of the holding in the case of Hammerberg v. Holloway, 131 Conn. 616, 41 A.2d 791, which seems to be contrary to our views. However, controlling statutory provisions of Connecticut are not identical with those of this state.
White Way not having availed itself of the means and measures supplied by the legislature for a direct attack upon the lawfulness and reasonableness of Order No. 322 of the Board, as amended, which order as amended fixed the minimum prices that White Way should pay for milk procured from producer-licensees, White Way could not present the same grounds collaterally by way of defense to this proceeding which is based, in part, on alleged violations of said Order No. 322, as amended. Commonwealth v. Ziegler Dairy Co., 139 Pa. Super. 224, 11 A.2d 669; Pennsylvania Milk Control Com. v. Royale Dairy Co., 73 Pa. Dist. & Co.R. 431; Commonwealth v. Jackson, 345 Pa. 456, 28 A.2d 894; Royce v. Rosasco, 159 Misc. 236, 287 N.Y.S. 692.
*515 The judgment of the trial court is reversed and the cause is remanded to that court with directions to enter a judgment modifying Order No. 348 of the Board so that the revocation of White Way's license be conditioned on the payment of the $1,000 fine and the sum of $1,948 as restitution to producer-licensees for underpayments during the month of January, 1954. Such payments to be made to the Board official named in Order No. 348 and within thirty days from the date of the entry of the trial court's decree of modification.
Reversed and remanded.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | March 14, 1957 |
3d2aa3b7-e4b5-4f81-ac55-4221d47c35aa | Webb v. Bank of Brewton | 93 So. 2d 154 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 154 (1957)
Sarah Mable WEBB
v.
BANK OF BREWTON.
3 Div. 777.
Supreme Court of Alabama.
January 10, 1957.
Rehearing Denied March 7, 1957.
*156 N. S. Hare, Monroeville, for appellant.
Wm. G. Caffey, Mobile, and Hugh M. Caffey, Jr., Brewton, for appellee.
PER CURIAM.
This is a suit in equity filed by appellant to vacate and annul a mortgage executed by Goldie and C. W. Clayton, Jr., to appellee bank. There was a final decree denying relief on evidence taken ore tenus.
Complainant and her husband had executed a deed conveying a house and lot to Goldie and C. W. Clayton, Jr. The property was owned solely by complainant. Goldie Clayton is the daughter of complainant, and C. W. Clayton, Jr., is the husband of Goldie Clayton. They executed the mortgage to appellee bank. The deed by complainant and her husband was dated January 1, 1952, and contained the following clause:
The bill of complaint invokes two theories on which relief is sought. One is that complainant was mentally incapacitated to execute a valid deed; and the other is that, as shown on its face, a material part of the consideration for the deed was an agreement by the grantees to support her and her husband during their lives. The mortgagee had notice of complainant's right to vacate the deed by its recitals. Polauf v. Etzel, 237 Ala. 663, 188 So. 909. Before this suit was filed complainant had maintained a suit in equity against the Claytons and obtained a decree cancelling the deed in question under her option right provided in section 15, Title 20, Code. Appellee bank was not made a party to that litigation and the decree is not controlling on it.
If complainant was mentally competent to make the deed, the next question is dependent upon that feature of the clause quoted, which is as follows:
The complainant endorsed on the bill of complaint a demand for a trial by jury on the basis of section 1112, Title 7, Code, having *157 application to a statutory bill to quiet title. The court on motion of respondent struck the demand and tried the suit without a jury. Complainant has assigned that ruling as error.
It is apparent that the purpose of the bill is to invoke the right to apply section 15, Title 20, Code, to the mortgage. The bill shows that without any statutory authority a court of equity has jurisdiction to set aside the mortgage as a cloud on complainant's title if it is subject to the option conferred by that statute. The allegations prescribed by section 1110, Title 7, Code (to quiet title) were wholly unnecessary to confer jurisdiction and added nothing to the equity of the bill. When the purpose of the bill is to obtain some recognized equitable relief, in addition to declaring a status as provided in sections 1109 and 1112, Title 7, Code, the right to a jury trial granted by section 1112 does not apply. Ex parte Baird, 240 Ala. 585, 200 So. 601.
Insofar as the mental capacity of complainant is concerned, the evidence is in much conflict. The trial court had the witnesses before him and his decision in that respect will not be reversed unless it is clearly contrary to the great weight of the evidence. Section 17(1), Title 13, Code, is not controlling under those circumstances. Andrews v. Grey, 199 Ala. 152, 74 So. 62; Taylor v. Hoffman, 231 Ala. 39, 163 So. 339. Applying that principle, we will not reverse the finding of the trial court on that state of the evidence.
With respect to the validity of the mortgage, a finding of facts by the court is set out in the decree on the basis of which the court declared "that the complainant by her conduct has waived and is estopped to assert as against the cross complainant any right to cancel or avoid said mortgage". The facts thus found by the court are as follows:
The court then in the usual form decreed foreclosure as sought by the cross bill, to which we have not referred but which is shown by the record. There is no complaint as to the form of that feature of the decree.
The difficult question presented is whether a grantor in a deed by which an option is created under section 15, Title 20, Code, can so agree or conduct herself at the time of executing the deed as to permit her grantee in it to execute a mortgage on the some property which would not be affected by such option. We do not find where the question has been decided or presented. It is not the same as applies to an exercise of the option when only the grantee in the deed is affected. But a study of the applicable principle to that situation is appropriate, we think. In the case of Pace v. Wainwright, 243 Ala. 501, 10 So. 2d 755, 756, we had occasion to discuss that question. In that case appellee succeeded in enforcing the option right in respect to a deed made to the appellant. The appellant contended that there was no such agreement as the statute (section 15, supra) contemplates, but that the deed was made with the intent on the part of the grantor to hinder, delay or defraud her creditor then existing, and that she has no standing in equity to secure the benefit of a fraudulent transaction. The court referred to the "unclean hands" principle of equity; and the limitation of it "that sometimes the courts of equity will enforce a right growing out of a transaction, notwithstanding unclean hands, when to do so would uphold the public policy of the state evidenced by a statute so declaring, where guilt is not equal to the higher right of the public", citing 17 C.J.S., Contracts, § 278, pp. 665, 666, and further observed that "the court will not through this maxim make abortive a statute enacted for the general welfare, and will sometimes grant relief by virtue of such a statute, when complainant is a party to a transaction which the statute was designed to prohibit, but when to deny relief would nullify it". But it was observed that a complainant cannot obtain the benefit of this statute (or any statute) "when the transaction in question was conceived and consummated in fraud having a purpose and tendency to work injury by one seeking to make it available. So that the question of fraud in purpose and tendency is one which controls appellee's standing in this case". The court then found that the grantor had the purpose to defraud her creditors by the execution of the deed and, therefore, could not have the benefit of section 15, supra, (though otherwise she might have done so).
In an earlier case it had been held that relief will be denied a grantor who executed a deed with the intent to defraud creditors. Baird v. Howison, 154 Ala. 359, 45 So. 668. Also when he is guilty of unconscientious conduct connected with the controversy by which he seeks an advantage from his own wrong. Durr Drug Co. v. Acree, 239 Ala. 194, 194 So. 544.
The same principle has been applied to other statutes enacted for the general welfare. The statute of frauds is an illustration. The mere failure or refusal to perform an oral contract required by the statute to be in writing will not deprive a person of equitable relief. But when a person is shown to have induced another to pursue a course of conduct in reliance on the validity of such a promise, when it was intended not to carry out the promise when it was made, but was then intended to work a fraud, such person cannot plead the invalidity of the promise under the statute of frauds. Spencer v. Spencer, 254 Ala. 22 (3 and 4), 47 So. 2d 252, and cases cited.
And so with reference to the statute which prohibits the wife from becoming surety for the husband. Section 74, Title 34, Code. A married woman may come into equity to vacate a mortgage on her land *159 when it contravenes that statute, and is not deprived of that right on the usual principles of waiver or estoppel. Durr Drug Co. v. Acree, supra.
It is said in Russell v. Peavy, 131 Ala. 563, 32 So. 492, that the "wife can not be estopped to deny her want of power or to set up the invalidity of her deed executed by her for such purpose [to secure the husband's debt], unless there has been on her part some positive acts of fraud, or concealment and suppression which, in law, is equivalent thereto". It is said in Richardson v. Stephens, 122 Ala. 301, 25 So. 39, 41, that "being by the law prohibited to so contract, appellee could not, by attempting to do so, estop herself to deny her want of power". This principle is carefully applied in Durr Drug Co. v. Acree, supra.
It has been held that no theory of estoppel against the wife is permitted to weaken or render ineffective the statute prohibiting the wife from alienating or mortgaging her land or any interest therein without the consent and concurrence of the husband. Section 73, Title 34, Code; Edwards v. Tabb, 242 Ala. 209, 5 So. 2d 770; Newman v. Borden, 239 Ala. 387(5), 194 So. 836.
Ordinarily a person may waive the benefit of a rule of law or statute enacted for his benefit when it is exclusively a matter of private right, but not when the public policy or morals are involved. City of Birmingham v. Smyer, 235 Ala. 116, 177 So. 630.
In the case of Standard Chemical Co. v. Barbaree, 239 Ala. 601, 195 So. 892, 893, it is said that "as between the parties to a contract, validity cannot be given to it by estoppel if it is prohibited by law or is against public policy". It is said in Vansandt v. Weir, 109 Ala. 104, 19 So. 424, 32 L.R.A. 201: "In the absence of actual fraud committed by her, the statutory real estate of a married woman cannot be divested by a dedication to public use as the result of conduct operating as an equitable estoppel upon her".
Although the option may arise under the deed as the statute provides, it may be lost by a subsequent contract having that effect. Grady v. Williams, 260 Ala. 285, 70 So. 2d 267.
Without the statute in question (section 15, Title 20) the grantor could not rescind the deed on account of the agreement to support her as the consideration of it except for fraud, actual or imputed, which may be manifested by a complete failure of effort to comply and with no apparent intention to do so. The statute made some important changes. Fraud or its equivalent by the grantee is not now essential to a rescission, nor is a failure to comply with the agreement, and a compliance with the agreement does not defeat the right. McAdory v. Jones, 260 Ala. 547, 71 So. 2d 526.
Another kindred principle is the invalidity of an agreement made by a mortgagor at the time of executing the mortgage to waive or release his equity of redemption, though it may be done by a subsequent agreement properly supported. Stoutz v. Rouse, 84 Ala. 309, 4 So. 170; Robinson Co. v. Anniston Land Co., 217 Ala. 648, 117 So. 29.
We think it is clear that the grantor cannot make a stipulation in a deed which alone would defeat her option granted by the statute. Stoutz v. Rouse, supra. To permit that to be done would defeat the public purpose sought to be accomplished.
The question here is not the status between the grantor and grantees, the Claytons. As to them, the deed has been vacated in equity pursuant to the right granted by section 15, Title 20, supra. But as previously stated, the question here involved is as to the effect of that decree upon the mortgage to the appellee bank. The trial court found that the loan was made in reliance on the authority of the Claytons to secure the same by a mortgage on the property and in reliance on the agreement of *160 complainant that said mortgage would be "unrestricted or unimpeachable" by complainant. This is not a finding of positive, actual fraud by complainant necessary to deprive her of her option under the statute as against her grantees. For that to exist she must have had that intent at the time of executing the deed. The mere breach of a contract would not suffice. Constructive fraud is not the test in such a controversy with the grantees. The circumstances are ample to establish the ordinary status of estoppel in pais. But that is not sufficient to protect the grantees: we are not dealing with the grantees. The clause authorizing the mortgage was inserted in the deed with complainant's full and voluntary approval expecting the bank to make a loan to the Claytons as indicated. It amounted to an assurance by the complainant to the bank that in doing so a mortgage on the property by the Claytons would be good notwithstanding the option granted her by the statute. It was not an agreement with the Claytons not to exercise the option so far as they were concerned. The effect of the transaction was by that method to mortgage complainant's property to the bank to secure a loan to the Claytons by it, as if complainant and her husband had executed such a mortgage. Section 73, Title 34, Code, prohibits complainant from doing so unless her husband joins with her in executing such instrument. But when they both executed the deed to the Claytons with the stipulation for such a mortgage by the Claytons, that statute is complied with. By reason of the assertion of the option, the title to the property was reinvested in complainant, but subject to a mortgage on it which she had made through the Claytons as the instrumentality for so doing.
As stated above, complainant could not mortgage her land without her husband's consent manifested by joining with her, and the statute would serve to annul such a mortgage without being influenced by the ordinary principles of estoppel. It would take positive, actual fraud to prevent complainant from asserting the invalidity of such a mortgage, which does not satisfy section 73, Title 34, supra. And while we do not see in this transaction any such positive, actual fraud intended, both husband and wife united in the deed which authorized the mortgage, thus satisfying the statute. By satisfying that statute and the statute of frauds and other requirements, they could authorize a mortgage to be made on the wife's land which would not be affected by the option right granted by the statute (section 15, Title 20). That right as against the grantees was not here affected, but its exercise should not be visited upon the bank which made a loan and took a mortgage in accordance with legal requirements and according to complainant's written authority voluntarily made to effectuate a purpose which she thought was for her benefit and concurred in by her husband in a proper manner.
For the reasons indicated we think the trial court correctly held that the mortgage is valid. The status of the title is that the land is owned by complainant subject to the mortgage to appellee bank. The decree of the trial court should be affirmed.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Affirmed.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur. | January 10, 1957 |
eb276271-f2cf-4eec-a221-b821e32221e7 | Mitchell v. Austin | 94 So. 2d 391 | N/A | Alabama | Alabama Supreme Court | 94 So. 2d 391 (1957)
Joseph MITCHELL
v.
William G. AUSTIN, Jr., as Trustee, et al.
1 Div. 672.
Supreme Court of Alabama.
February 21, 1957.
Rehearing Denied April 25, 1957.
D. R. Coley, Jr., Mobile, for appellant.
Frank J. Tipler, Jr., Andalusia, for appellees.
*392 SIMPSON, Justice.
Before proceeding to a consideration of the case on the merits, a construction of Supreme Court Rule 37, Code 1940, Tit. 7 Appendix, is necessary to determine whether the transcript should be permitted to be filed. The case is in equity. The appellant, pursuant to Supreme Court Rule 37, applied to the lower court for a thirty-day extension of time within which to file the transcript in this court. The trial court granted the extension which would run until June 20, 1956. On June 27th, seven days after the limit of the extension, the appellant filed the record here along with a petition that he be allowed to so file it. The appellee consented to the belated filing.
The question posed is whether or not the appellant must apply to this court before the time expires for the filing of the transcript or can he wait, as he did here, until his filing time has passed and then request this court for an extension of time.
This situation seems not to be covered by Rule 37, but the court, in general consultation in which all the Justices have concurred, has concluded that the application for the filing of the transcript here need not he made within the time (90 days) allowed in the lower court, but that on good cause shown this court may extend the time for filing the transcript either before or after the said 90 day period allowable in the court below.
In this case it is the view of the court that the consent of opposing counsel to the belated filing of the transcript is sufficient showing of good cause.
The appeal is from a decree of the circuit court in equity holding good a plea of res judicata against the bill and bill as amended, and dismissing the bill.
The bill and bill as amended sought the establishment of an alleged lost deed wherein the grantee therein executed a mortgage to the complainant, Mitchell, on the real estate embraced in the deed, the foreclosure of said mortgage, and other relief.
The strict question of merit presented is whether a former proceeding and decree rendered thereon in the same court (reported in Turner v. Steber, 259 Ala. 509, 66 So. 2d 781, and here affirmed) barred the present suit. The trial court on setting the plea down for a hearing on its sufficiency held to the affirmative, dismissed the bill, and complainant brings this appeal.
The material facts giving rise to the action appear to be as follows: In April, 1944, W. R. Steber (now deceased) and wife, Anna K., allegedly conveyed certain real property to T. W. Cobb; the conveyance was not recorded. Cobb, on May 1, 1944, executed a mortgage on such property to the complainant, Mitchell; the mortgage was not recorded. Cobb, on May 26, 1944, conveyed the real property by warranty deed to one Turner which conveyance was recorded. Thereafter, in 1950, Cobb's whereabouts being unknown, Turner sought to establish the alleged lost deed from Steber and wife to Cobb. This court, sustaining the decree of the trial court, there held that the evidence failed to show any intent to execute and deliver a deed which would convey title from Steber to Cobb. Turner v. Steber, supra.
The question then is whether Mitchell, the complainant here, is barred from the present suit by the former Turner v. Steber case, supra, when he was not a party to that proceeding, and his mortgage was executed prior to the institution of said suit.
It is well settled that a final decree is conclusive as to all facts or issues decided therein and binds not only those who were parties to the litigation but also persons who are in privity with them. Sims v. City of Birmingham, 254 Ala. 598, 49 So. 2d 302.
But the term "privity" "denotes mutual or successive relationship to the same right of property." Bigelow v. Old Dominion Copper Mining & Smelting Co., *393 225 U.S. 111, 32 S. Ct. 641, 643, 56 L. Ed. 1009. And no one is in privy to a judgment whose succession to the rights of property thereby affected, occurred previously to the institution of the suit. Freeman On Judgments (5th Ed.), § 440, p. 966.
The principle is illustrated and defined in the following authorities: Cox v. Brown, 198 Ala. 638, 73 So. 964 (Mortgagee not bound by a subsequent judgment against the mortgagor divesting the latter of title); Gladowski v. Felczak, 346 Pa. 660, 31 A.2d 718, 151 A.L.R. 418 (Grantees' mortgagees not concluded by determination that deed from grantor to grantee was void where they were not parties to the litigation and mortgage executed before the proceedings were instituted); Vasu v. Kohlers, Inc., 145 Ohio St. 321, 61 N.E.2d 707, 166 A.L.R. 855. See also Teisinger v. Hardy, 1929, 86 Mont. 180, 282 P. 1050; Sweeting v. Campbell, 1954, 2 Ill. 2d 491, 119 N.E.2d 237; Twin City Fed. Savings & Loan Ass'n v. Radio Service Laboratories, Inc., 242 Minn. 10, 64 N.W.2d 32, 33; Henschke v. Christian, 1949, 228 Minn. 142, 36 N.W.2d 547; 50 C.J.S., Judgments, §§ 788, 803, 810, pp. 324, 348, 357; 30 Am.Jur., Judgments, § 226, p. 959.
Our case of Coles v. Allen, Preer & Illges, 64 Ala. 98, also gave force to the same principle where it was observed:
Complainant, as observed, was not a party to the proceeding between respondents and Turner, the mortgage having been executed to him before the institution of such proceeding, and was therefore not bound by such proceeding.
It results that the decree sustaining the sufficiency of the plea of res judicata was laid in error.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | February 21, 1957 |
5c514be3-70ab-4657-8001-3f4b33bce223 | Watson v. State | 93 So. 2d 750 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 750 (1957)
B. M. WATSON
v.
STATE of Alabama.
6 Div. 47.
Supreme Court of Alabama.
March 7, 1957.
Rehearing Denied April 4, 1957.
Beddow, Gwin & Embry and Roderick Beddow, Jr., Birmingham, for appellant.
John Patterson, Atty. Gen., Bernard F. Sykes and Jas. W. Webb, Asst. Attys. Gen., for the State.
MERRILL, Justice.
Appellant was indicted, tried and convicted for murder in the first degree and sentenced to imprisonment in the penitentiary *751 for life. His motion for a new trial was overruled and he appeals.
The deceased, Edward Battles, and three friends arrived at a beer joint, First and Last Chance, on old Highway 11 in Jefferson County, not far from the Tuscaloosa County line, around 9:15 p. m., on June 18, 1955. One of his friends, C. L. Thompson, had an unopened can of beer, purchased at another establishment, which he set on the counter at First and Last Chance. The defendant, manager of the beer joint, told Thompson that if he was going to drink beer in his place of business he would have to buy it there. Thompson told defendant that if he didn't appreciate their business they would go, and he and his friends began moving toward the door. At a point near the door, defendant grabbed Thompson by the shoulder but one of the party, not the deceased, pushed Thompson out the front door and pushed Watson toward the interior of the joint and all the members of Battles' party went out across an uncovered platform or porch in front of the door, which extended about five feet toward the highway and was about eight inches above the ground, with Battles being the last out the door. As the party went out the door, defendant went back behind the counter and got a pistol and returned to the porch. Thompson testified that Watson told deceased to run and when he did not run, defendant shot deceased three times and shot at Thompson twice. The owner of the place, Gorman Armstrong, testifying for defendant, said that deceased was attacking defendant with a plank or board. Deceased was shot three times; his friends took him to a hospital and he died some hours later.
There was no evidence that deceased and defendant had any words prior to the time the party was leaving and all the eye-witnesses put deceased off the porch before the defendant returned to the porch with the pistol. Defendant did not testify in his own behalf.
In brief, appellant cites three instances in which he argues reversible error occurred. The first is in the cross-examination of the State's rebuttal witness, Pearl House, the mother of the wife of deceased. In an attempt to show bias, interest or prejudice of this witness, defendant's counsel addressed the following statement to her: "You are aware of the fact, and you know, that your daughter is suing the defendant for a hundred thousand dollars." The State objected and there followed a three-sided colloquy between counsel for both sides and the court. Counsel for defendant argued that since the witness was the mother of the deceased's wife, who was suing the defendant for damages in a civil case, she was interested sufficiently to be biased or prejudiced. The solicitor argued that since the mother was not a party to the suit, the mere fact of the relationship of mother and daughter did not impute interest to the mother. It seems that the court was inclined to agree with the solicitor's argument when defendant excepted and the matter was dropped.
It is settled that it must appear from the record that a ruling of the court was had on a proposition presented by objection or motion, and that action of the court was had thereon. It is the act of the court, not the act of the parties in invoking it, though necessary thereunto, that is reviewable on appeal. Dowling v. State, 151 Ala. 131, 44 So. 403; Anderson v. State, 18 Ala.App. 58, 89 So. 98.
The colloquy previously referred to is copied in briefs of both parties and we have considered it carefully in consultation. We are of the opinion that it is not clear that the trial court ever actually ruled on the objection. In such case, there is nothing presented for us to review. Also, the literal wording of the statement and the punctuation in the record shows that it was a statement to the witness and not a question, and was objectionable for that reason. But irrespective of whether a ruling of the court was had, the defendant had already succeeded in making his point with the jury that the witness' daughter was suing the defendant. The preceding witness for the *752 defendant was the clerk of the circuit court, and the complaint, whereby deceased's wife was suing defendant for $100,000, was offered in evidence. The statements made by counsel then, and in the colloquy during the cross-examination of Pearl House, were more than adequate to apprise the jury of the pending suit.
Appellant next urges that the court erred when defendant objected to the statement in the solicitor's closing argument "when that maniac shot that man like a dog as he stood on the porch over him." The following transpired:
"The Court: Over-ruled.
"Mr. Beddow: We except."
An eyewitness had testified that the defendant had shot deceased as he was lying down in front on the porch, and that the gun was about two feet from deceased's body when the third shot was fired by defendant.
A mistrial will not be granted on motion of defendant where the court has sustained his objections to alleged improper argument and excluded it from the jury's consideration, unless it clearly appears that the defendant's rights have been so prejudiced as to render a fair trial a matter of grave doubt. Bryant v. State, 252 Ala. 153, 39 So. 2d 657; Coats v. State, 253 Ala. 290, 45 So. 2d 35; Burkett v. State, 215 Ala. 453, 111 So. 34; Houlton v. State, 35 Ala.App. 444, 48 So. 2d 11. See also, Pilley v. State, 247 Ala. 523, 25 So. 2d 57.
While we do not sanction name calling or odious comparisons, it is sufficient in most cases for the court to exclude the objectionable part of the statement. The following "inelegant and unparliamentary" statements in argument have been considered by our courts and held not to be grounds for reversal: "`This defendant has lied like a dog running on hot sand,'" Reed v. State, 32 Ala.App. 338, 27 So. 2d 22, 24, certiorari denied 248 Ala. 196, 27 So. 2d 25; defendant was "a smart aleck," Ferguson v. State, 21 Ala.App. 519, 109 So. 764, certiorari denied 215 Ala. 106, 109 So. 764; "`defendant did not care any more for ruining that little girl than he did coming on the witness stand and swearing a lie, like he has done in this case,'" Baughn v. State, 22 Ala.App. 517, 117 So. 608; "`what monumental liars these plaintiffs are!'" Green & Sons v. Lineville Drug Co., 167 Ala. 372, 52 So. 433, 436; "`From the evidence in this case he (the defendant) is a damned thief,'" Jackson v. State, 33 Ala. App. 42, 31 So. 2d 514, 519, certiorari denied 249 Ala. 348, 31 So. 2d 519. We cannot say that the statement in the instant case was so injurious as to deprive defendant of a fair trial.
Appellant also argues that another statement made by the solicitor constituted reversible error. The solicitor said, "If this defendant served a thousand years in hell, from this date, he would not pay for the wrong he did in killing of this deceased." The defendant objected; the court sustained *753 the objection and instructed the jury not to consider the statement "serve a thousand years in hell." The defendant then moved for a mistrial on the ground that the injury was ineradicable. The motion was overruled and defendant excepted. The court again instructed the jury not to let the statement influence them "one iota" in arriving at their verdict.
The law stated in the discussion of the first argument is applicable here. A remark similar to the one before us was made and not excluded in Gilbert v. State, 19 Ala. App. 104, 95 So. 502, 504, where it was said:
As is required of us in criminal cases, we have searched the record for error, whether called to our attention in brief or not, and we find no reversible error. The evidence was ample to support the verdict and the motion for a new trial was properly overruled. The judgment of the Circuit Court is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | March 7, 1957 |
d3893726-2da1-4a52-95b4-18b7d2b6248d | Adkins v. State | 93 So. 2d 522 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 522 (1957)
Forrest ADKINS
v.
STATE of Alabama.
7 Div. 359.
Supreme Court of Alabama.
March 14, 1957.
John Patterson, Atty. Gen., and Robt. G. Kilgore, Jr., Asst. Atty. Gen., for the petition.
Wales W. Wallace, Jr., and Handy Ellis, Columbiana, opposed.
MERRILL, Justice.
The single ground insisted upon in petition for writ of certiorari, filed by the Attorney General, is that the Court of Appeals erred in holding that "the argument *523 to the jury by the Solicitor to the effect that if the State had not made out a case, the Court would have taken it from the jury, was improper since the Solicitor was replying to the argument of defense counsel that the State had failed to make out a case."
We do not think the Court of Appeals meant to cite the quoted statement from 127 A.L.R. 362 as authority to be followed, but merely as a reference where citations for cases supporting part of that very general statement could be found. We think the Court of Appeals, in citing and discussing Loyall v. Commonwealth, 281 Ky. 497, 136 S.W.2d 784, 127 A.L.R. 352, and State v. Nathoo, 152 Iowa 665, 133 N.W. 129, made the point clear that, while the remark of the solicitor was improper and objectionable, had the trial court sustained the defendant's objection instead of overruling it, and possibly admonished the jury as suggested, the matter complained of would not have constituted reversible error. We so understand and construe the holding of the Court of Appeals.
Writ denied.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | March 14, 1957 |
019f3a3c-c00b-471f-a810-a1ae69629356 | King v. State | 95 So. 2d 816 | N/A | Alabama | Alabama Supreme Court | 95 So. 2d 816 (1957)
John Wesley KING
v.
STATE of Alabama.
6 Div. 49.
Supreme Court of Alabama.
March 14, 1957.
Rehearing Denied June 20, 1957.
*817 Rogers, Howard & Redden, Birmingham, for appellant.
John Patterson, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for State.
STAKELY, Justice.
John Wesley King (appellant) was indicted for the offense of murder in the first degree. Trial was had on his plea of not guilty. The jury returned a verdict of guilty and fixed the punishment at imprisonment for life in the penitentiary. A motion for a new trial was overruled. The court sentenced the appellant accordingly and from such judgment and sentence this appeal has come to this court.
John Wesley King and the deceased, Jim King, were brothers. They were both bachelors and lived together in May 1955 and for several years prior thereto near the Hendricks Community about ten miles northeast of Oneonta in Blount County, Alabama. Their home was near the Little Warrior River. They lived alone. The deceased was about seventy-nine years of age.
One Clint Townley, according to his testimony, was an eye witness to the murder. Clint Townley testified that he had spent the night at the King home about a week before Jim King met his death. On the day of his death he went to the King home about one o'clock in the afternoon. Wes King was not there when he arrived but Jim King was. Wes King came in and Wes King and Clint Townley began drinking. Jim came in the room where they were drinking and began to remonstrate with Wes King about the drinking. Jim King then turned and picked up some fishing poles. "We could see him from the window there going down towards the river there, with them fishing poles."
Clint Townley further testified that after Jim King left Wes King said, "`I'm going to have to do something or other. I'm *818 going to put Jim in the asylum or do something or other with him. He is running me crazy the way he is doing.'" After a while Wes King said, "`Let's go out and walk around. Does it suit you? and I told him yes, it suited me, and we'd get out and get a little exercise if it suited him." After a while Wes King said, "`Let's walk down here where Jim went to on the creek and see if he is catching any fish. * * * I know there aint no fish down there. * * He aint catching no fish. Let's just go by where he's at down there.' I told him `OK.' We walked on down there, walked to the creek and Jim was sitting there on the bank of the creek. So Wes asked him, `Well, you catching a lot of these fish?' Jim got up and said, `No, I aint caught no fish. * * * And Wes said, `Well, don't you know if you weren't crazy you wouldn't be down here in this swift water a-trying to catch fish, knowing there aint none down here nohow.'"
"Well, Jim turned around and said, `I just left the house to get away from that drunk mess and you followed me down here." And Jim said, `It's going to be stopped, you staying drunk over here all the time, * * *.' So directly, Jim just turned around and walked back down there where his poles was at. I don't know whether he sat down. He either squatted down or sat down. * * * About the time he got squatted or sat down there, why, Wes just retched over there and got him a pole and hit him right across the head with it, and knocked him over there. And Jim he went to struggling and kicking. I thought he had killed him there. So he just took and run his hands in both of his pockets there and got a billfold out of Jim's pocket and put it in his pocket. Then he just got a-hold of himit was right on the bank of the creek thereand he just rolled him over and pushing him in, in that swift water there."
The coroner testified that deceased had a fractured skull and other head and face injuries which caused his death.
The testimony on behalf of the appellant tended to show that the appellant was not at home at the time of his brother's death and that Clint Townley was seen by people in the community that afternoon. There was testimony that Townley left the community with money in his pocket and that his clothes were wet when he was seen leaving.
There was testimony tending to show the bad character of both the appellant and Clint Townley. A number of witnesses testified that they would not believe Townley on oath and there were other witnesses who testified they would not believe appellant on oath.
A searching party was formed by the people of the community on the night that the deceased failed to come home. His body was found in the stream a few feet from the bank near the spot where Townley testified that he was killed by the appellant. The clothes of Jim King were wet.
I. Before the jury returned its verdict the defendant made a motion to the court to withdraw the case from the jury and grant a mistrial. The ground assigned in support of the motion was that the jury had been separated during the trial of the case and after the testimony had all been taken. The court overruled the motion. The same proposition was raised by the appellant on his motion for a new trial, which the court overruled.
Testimony was taken by the court in connection with the separation of the jury. J. C. Carr testified that he was a Deputy Sheriff in Blount County and that he was acting as bailiff to the jury on the trial of the case and he was so acting the previous night when one of the jurors became sick. He contacted a doctor. The juror had had some medicine sent to him during the course of his service on the jury. The bailiff testified that he talked to the doctor and explained to him that Oris Martin, one of the jurors, was sick with a hemorrhage of the bowels. He further testified *819 that the juror did not appear to be too sick. When he called the doctor the doctor called a doctor in Birmingham who advised that Oris Martin be carried to the hospital. Dr. Wittmeier was the local doctor and Dr. Lewis was the doctor in Birmingham. Sheriff Murray thereupon carried Oris Martin to the hospital. While Oris Martin was away the other jurors were kept together. Nobody talked to the other jurors or to Oris Martin. The hospital is about a mile or three-quarters of a mile from where the jurors were kept. Oris Martin spent the night at the hospital. J. C. Carr remained with the other jurors.
Roy Murray, the Sheriff, testified that he was informed the previous night that one of the jurors, Oris Martin, was sick and a doctor had ordered him carried to the hospital. Accordingly he carried Oris Martin to the Blount Memorial Hospital. At first there was difficulty in getting a bed for the patient. Finally, he spent the night in the emergency room. He, the sheriff, remained with the patient until a few minutes after midnight when he was relieved by Deputy Sheriff Shaviers. Dr. Wittmeier, the local doctor, was there and some nurses were there and the sister of the patient came to the hospital and brought him a clean pair of pajamas. The sheriff testified that during that time nobody talked to Oris Martin nor was the case discussed. While his sister came to the hospital, she did not go into the room.
The Deputy Sheriff J. L. Shaviers testified that he was called to the Blount Memorial Hospital about twelve o'clock the previous night and he saw Sheriff Murray and Oris Martin and Oris Martin was in the emergency room, where he spent the night. That he was present at all times from five minutes after twelve until 7:30 in the morning, that he stayed awake at all times and that no one talked to Oris Martin about the case. In answer to questions by the court Shaviers testified that no one talked to Oris Martin other than the doctor and the nurse and that he was relieved in the hospital the next morning at 7:30 by the Sheriff.
Roy Murray, the Sheriff, further testified that he brought Oris Martin back to the court house, that nobody talked with Oris Martin about the case and that he had no contact with any outsider.
Oris Martin testified that from the time he became ill on the evening of the trial until the morning when he was returned to the court house he had no contact with anyone except the doctor and the nurse and except that he had been in the continuous custody of the sheriff or his deputy and that the case had not been mentioned in his presence or hearing by anyone.
The court read into the record a statement to the effect that it was made known to the court by the county solicitor about 6:30 or 7:00 o'clock of the juror's illness. The court suggested to the county solicitor that he contact one of the attorneys for the defendant and acquaint him with the situation of the juror's illness and obtain his reaction the situation of the juror's illness and obtain his reaction to the juror going to the hospital with an officer. Mr. Jack Martin Bains, one of the attorneys for the defendant, was contacted by the county solicitor and stated that insofar as he was concerned, he would have no objection. Mr. Bains further stated to the county solicitor that he was not speaking for Mr. Kelton, who was the Chief Counsel for the defendant, and suggested that the solicitor contact Mr. Kelton.
There is no doubt that in Alabama a separation of the jury after the trial has been entered upon and before verdict, creates a ground for reversible error in favor of the defendant unless the State affirmatively shows that the defendant was not thereby injuriously affected. In other words, the separation of the jury does not establish an absolute right to have a mistrial declared or a new trial granted but prejudice must result therefrom in order for a new trial to be granted. The right of the defendant in this respect is only *820 prima facie and when a separation is shown, the burden is on the prosecution to establish affirmatively that the separating jury or juror conversed with no one as to the defendant's guilt and that no other influences were brought to bear on the jury or any of its members which might have biased their deliberations. Lynn v. State, 250 Ala. 384, 34 So. 2d 602; Arnett v. State, 225 Ala. 8, 141 So. 699.
Miles v. State, 261 Ala. 670, 75 So. 2d 479, is not a controlling authority in this case. In that case the sheriff, the deputy sheriff and the highway patrol officer were very active in the investigation of the case and as a result of their investigation the defendant was arrested and committed to jail. As a further result of their activity an alleged confession was obtained from the defendant when he was arrested. They caused the defendant to remove all his clothing and there was testimony that the defendant was beaten and otherwise mistreated. In that case the Court held that the case should be reversed since the sheriff, who was an important witness for the State in securing the conviction of the defendant, was in charge of the jury during the noon recess, took the jurors down town to a cafe and ate with them and was in charge of the jury outside the presence of the court. Miles v. State, supra, strongly relies on Oliver v. State, 232 Ala. 5, 166 So. 615, wherein the coroner who had been active in investigating the case, procuring witnesses, causing the defendant's arrest testified to material facts and yet was permitted by the sheriff to have charge of the jury, sleeping and eating with them and remaining with them during much of their deliberation. The court held in that case that the State did not overcome the presumption of injury that entered into the verdict by reason of the presence of such witness.
In the case at bar neither the Deputy Sheriff J. C. Carr nor the Deputy Sheriff J. L. Shaviers testified, except on the motion for a mistrial and neither was shown by the evidence to have been active in the prosecution of the case. Roy Murray, the Sheriff, did testify in the case, but he took no part in the case until he joined in the search for Jim King around midnight of Thursday night, May 26th. He was present when the body of Jim King was discovered. He testified that he went to the place where the body was found with eight or ten men. Some were Hufstutlers, a Mr. Dorsey and some other fellows whose names he did not recall. When he first arrived at the river bank there were found a couple of fishing poles, a man's hat and on the river bank it looked as if something had slid into the water. There were marks and foot prints down the side and into the water. When the body of Jim King was found he was lying on his back on his left side, his head resting on some underbrush. There was no evidence or marks on the ground that water had been poured on his head. He was dressed in a shirt and over-alls. He had on shoes. He had wounds on his head and a wound on his throat and some blood was observed running down on his face from the wound on his head. The body was stiff. He did not touch the body nor did anybody in his presence move the body. When the body was found he left some men there with the body and went to his car and radioed Gadsden and asked them to call Oneonta and send the coroner and an ambulance to the scene. In about forty minutes to an hour Coroner LeCroy arrived. The coroner made an examination of the body. He found some smoking tobacco and a pipe. He didn't recall that he found anything else on the body.
John Wesley King, the defendant, went down to the river bank with the sheriff, where there were several other men. The sheriff testified that when he drove up to the house, John Wesley King said, "I want you to find my brother. He is on the river; been knocked in the head." The sheriff further testified, "I walked with him from the house to the river bank. He said in substance, `I want you to help me find my brother. I believe he is on the river bank *821 knocked in the head * * * I am afraid he is killed.'" The place where the body was found is about 190 yards from the house. The body was as close to the house as it could be and still be on the river bank.
The sheriff further testified that he learned that someone else had been down toward the King house. It was Clint Townley. On Friday morning after the body was found the sheriff testified that he went to check on Clint Townley's movements and to find out all he could about him. His sister, Mrs. Eudora Price, on his request gave him the clothes that Clint Townley had on when he came in the evening before. "I got those clothes around daylight. They were in normal condition just as if they had been pulled off the evening before. I brought those articles of clothing to the jail and later turned them over to Mr. Johnson, the State Toxicologist. The following Sunday night I saw Clint Townley in the Blount County jail. He came to the jail voluntarily."
Berval Hufstutler was the person who first discovered the body. He just called out to the crowd, "He is on the bank of the river." Some of the men had flash lights and some pine torch lights. The sheriff testified that he was there at the time the men went into the river and probed the hole. He did not go into the river. The water there was from knee deep up to chest deep and some of it higher. The body was in a "thickety place" and he did not know how he got there or who carried him in. The men found him while they were still in the water and while they were moving toward the bank.
The witnesses in the case, other than the sheriff, testified as to the search for Jim King and as to matters which occurred before the sheriff reached the place where the body of Jim King was found. Roy Murray, the Sheriff, testified as to what he saw and found when he arrived at the scene of the homicide and as to the foregoing statements which he stated were made to him by Wesley King. He further testified that the reputation of Wes King in the community was bad for drinking and causing trouble.
Oris Martin testified that he had nothing to say to the sheriff or his deputies with reference to the case and that they said nothing to him. The proof shows no undue familiarity between the officers and the juror. In instances of this kind each case stands on its own facts. Bell v. State, 227 Ala. 254, 149 So. 687. The fact that the officer in charge of the jury testifies to important facts, does not always disqualify him from having charge of the jury. Harris v. State, 233 Ala. 196, 172 So. 347.
The court overruled the motion to grant a mistrial which had for its basis the separation of the jury. We think such a finding is justified by the evidence and should be upheld by this Court. Harris v. State, supra; Lynn v. State, 250 Ala. 384, 34 So. 2d 602; Arnett v. State, 225 Ala. 8, 141 So. 699. We, accordingly, say that the court was not in error in refusing the motion for a mistrial and in refusing the motion for a new trial on the ground that Oris Martin had become separated from the jury.
II. It is argued that the coroner who examined the body of the deceased was not properly qualified as an expert to testify concerning the wounds found upon the body of the deceased. This witness stated that he was the Coroner of Blount County; that he did not have a degree; that he was a registered technologist with two years of college and one year under a pathologist; that in the course of his schooling he studied anatomy, hematology, parasitology; that he was a chemist for the blood bank; that he had worked in hospitals for ten years and that he had been present when an autopsy had been performed by employees of the State Department of Toxicology and has seen many dead bodies.
*822 Our cases hold that whether a witness is shown to possess requisite qualifications is a preliminary question largely within the discretion of the trial court. DeSilvey v. State, 245 Ala. 163, 16 So. 2d 183; Gettings v. State, 32 Ala.App. 644, 29 So. 2d 677.
We find no error in the ruling of the court on the point here under discussion.
III. It is insisted that the court was in error in refusing Charges 6, B and C. Charges B and C were substantially covered by the oral charge. Jackson v. State, 264 Ala. 528, 88 So. 2d 206; Helms v. State, 254 Ala. 14, 47 So. 2d 276. Charge 6 was substantially covered by given charge No. 7. Isom v. State, 37 Ala.App. 416, 69 So. 2d 716. There was no error in regard to these matters.
IV. It is further argued that the Court was in error in refusing to give Charges 18, M. and Q. To sustain the action of the court in refusing these charges, it is enough to say that each of these charges is abstract. A study of the record convinces us that there was other evidence in the case tending to connect the defendant with the commission of the crime beside the testimony of Clint Townley. Abercrombie v. State, 33 Ala.App. 581, 36 So. 2d 111, certiorari denied 250 Ala. 701, 36 So. 2d 115; Wilson v. State, 34 Ala.App. 219, 39 So. 2d 250, certiorari denied 251 Ala. 676, 39 So. 2d 254.
We have already detailed the statements made to the Sheriff Roy Murray when the sheriff came to the home of Wes King to aid in the search for Jim King. Berval Hufstutler testified that while they were making a search for Jim King, Wes King said: "`He was talking at the time that we might find him on the bank and that if Townley had been down there no telling what happened to him, that we were likely to find him beaten up on the bank, that there was no telling what if Townley had been there.'"
According to Auburn Hufstutler, who testified for the State, when they were making the search the night of the killing and before the sheriff arrived, Wes King said: "`We might find his body beaten up down there on the river somewhere, needing first aid.' He made statements like that several times."
Tony Hamby testified that a week prior to the death of Jim King he was talking to Wes King. The Kings were in a law suit about the Whitehead Place. He asked Wes King how they come out and he said, "`I come down and silenced Johnson's mouth'" and if he `"could get his sick, crazy brother out of the way, he would get the Whitehead Place and the other, too.'"
Tony Hamby was in the searching party the night when Jim King disappeared. According to the testimony of Tony Hamby, Wes King said quite a few times that his brother was on the creek somewhere beaten and robbed. During this time Wes King got up and walked around a little bit and said: "`I can't stand this. I don't know anybody that would suspicion me and think I had anything to do with it except my best friend Claud (Claud Hufstutler).'" He further testified that after the disappearance and killing of Jim King he had a conversation with Wes with reference to the money that was on Jim King. Wes King said, `"He said he knew just exactly how much money Jim had on him but he never would tell.' Jim King usually carried money on his person. He said, `We would go to Cullman and buy a mule and that he had the money to buy anything he wanted to make a crop on.'"
Mit Patterson testified that maybe a month after the death of Jim King he was talking to Wes King. He testified: "He shook hands with me. I said, `How are you doing, Wes?' I said, `Have they still got that thing in jail that done that?' and he said, `Do you know him?' and I said, `Yes', and he said, `You might help me. I am getting up evidence. Weren't you down *823 that way that day and seen him?' and I said, `No.' He said, `If you were you wouldn't care about getting on the stand and swearing to it?' and I said, `Not a bit in the world.' Then he said, `Wasn't you down that way looking at timber or someting like that and seen him and my brother digging fish bait?' and I said, `No, Wes, I don't know anything about it.'"
Collins (Buddy) Sisson testified that on the Saturday after the death of Jim King and after the funeral Wes King came to him and asked him would he say he was down there that day fishing and seen Clint Townley down there and I just said, "No, I don't want nothing to do with that."
Grover Horton testified that he saw Wes King about the time of the funeral of Jim King and he asked Wes King how he was getting along and he said, "Just fine, all except I owe so much."
Roy Dorsey was on the searching party the night the search was made for Jim King. He heard Wes King say on more than one occasion that his brother was down on the river bank needing help. He said, "`Somebody had made a foul play on his brother; and he was down on the river bank somewhere needing help and that he would like for somebody to get him.'" It was then that the party stopped and came back to get Sheriff Murray to go with the searching party.
Claud Hufstutler was in the searching party. He testified that Wes King came up to him and said his brother Jim was missing and "`he was satisfied that he had went off fishing and probably fell in the creek.'" "He told me that there was no use to walk down the road, that he was on the creek bank somewhere; that he had been robbed and hit in the head."
Monroe Thomas testified that he had a conversation with Wes King after the death of Jim King in about the middle of July. "He asked me once that if he did get capital punishment would I write a book on his life. He asked me in substance, `What if I say you were the third party in on it?' I said that it was impossible because I could prove where I was and he said, `What if I say you were the third party in on it?' and he then said if he did `get capital punishment would I write a book on his life.'"
John Hufstutler testified that he was on the searching party that night Jim King disappeared. Wes King, among other things said, "`He just wondered if anybody might accuse him of having anything to do with it.'"
Later on the witness took a trip to Hartley's He talked with Wes King. He said some of the reports were that Clint would probably go out to California and no one would ever know what happened to cause Jim's death. The witness said, "I have known you and Clint a long time. I just couldn't believe it of Clint." I told him Clint would be caught and in jail before Sunday. He said, "`What if Clint is brought back and says you killed Jim?' I said, `I know Clint will not say it was I. I know Clint will not up and tell a lie that way.' He asked me if Clint would tell he had something to do with it, would the neighbors believe it was a falsehood or a lie. I told him, `No, the neighbors are good and wouldn't believe no falsehood.'"
Afterwards the witness was asked, "After you told him they would get Clint in jail by Sunday night, did Wes King make this statement in substance: `Do you reckon he will tell it?'"
Among other things Wes King testified that he was in debt to his brother and that was what he was talking about when he made the statement to Grover Horton which has been hereinabove referred to. He further testified, "If I needed money I would ask anybody besides my old `pennyful' brother." Wes King further testified that his father and mother are dead; that he has three living sisters; that so far as he knew Jim King never made a will. There is testimony in the case that Jim *824 King had money in the bank and owned the land known as the King Place.
J. E. Herring, a minister, testified that he conducted the funeral of Jim King. Wes King came up to view the remains of Jim King when the casket was opened. As he viewed the body of his brother, Wes King said, "`Pastor Herring, he doesn't look like he is mad at me now.'"
According to the testimony of Wes King himself he was at his own home with his brother during the early afternoon preceding the night when his brother disappeared and the last time he saw his brother was when he left him digging fish bait.
We say again that there was evidence in the record tending to connect Wes King with the killing of his brother outside of the testimony of Clint Townley and the court was not in error in refusing Charges 18, M. and Q.
V. During the cross examination of the State's witness, Paul Robinson, he was asked questions concerning a discussion that he had with Wes King after the commission of the crime here involved. He denied that during the course of this conversation Wes King tried to collect some worthless checks that he had given the deceased. The witness was asked whether he recognized these two checks after the checks were presented to him. Upon ascertaining that these checks were signed by Paul Robinson and made payable to Paul Robinson, the court sustained a motion to exclude the testimony concerning the checks. It is insisted that the court was in error in that the appellant was not allowed to lay a predicate for the impeachment of this witness because of the ruling. So far as we can ascertain, there was no effort made on the part of the appellant to impeach the statement of this witness concerning these checks. The trial court by its ruling merely prevented the appellant from introducing in detail testimony as to the original transaction between the witness and the deceased concerning these checks. This entire matter seems to us to be immaterial to this case and that there was no error in this ruling of the court.
We consider that the record is free of error and the judgment of the lower court is due to be affirmed.
Affirmed.
All the Justices concur. | March 14, 1957 |
7c5daedb-a162-4d83-8916-872caf944e81 | Benson-Jackson-Mathers Post No. 5106 v. Donaldson | 99 So. 2d 688 | N/A | Alabama | Alabama Supreme Court | 99 So. 2d 688 (1957)
BENSON-JACKSON-MATHERS POST NO. 5106, also known as Local Post V. F. W., Thomasville, Alabama
v.
Mrs. J. F. DONALDSON.
1 Div. 718.
Supreme Court of Alabama.
December 19, 1957.
Rehearing Denied January 23, 1958.
Lange, Simpson, Robinson & Somerville, Birmingham, and Adams, Gillmore & Adams, Grove Hill, for appellant.
Paul S. Jones, Grove Hill, for appellee.
MERRILL, Justice.
Appellee filed suit under the Workmen's Compensation Law for the death of her husband as an employee of appellant, allegedly arising out of and in the course of his employment, and the circuit court made an award to appellee.
Appellee moves that the appeal should be dismissed because the record shows there was no citation of appeal served on appellee or her attorney and there is no certificate of appeal in the record.
A review of dates is necessary to understand fully our holding on the motion. Appellee's husband died July 20, 1951; the complaint was filed November 23, 1951; testimony was taken on February 7th and 12th, 1957, and judgment was rendered on February 12, 1957. The appeal was duly taken and the record, minus the citation and certificate of appeal, was subsequently filed in this court. Appellant's brief was filed May 20, 1957, in which oral argument *689 was requested. This request automatically deferred submission of the cause until the call of the First Division in the week of November 11, 1957. Appellee's brief and her motion to dismiss were filed on June 17, 1957. A supplemental transcript was filed here on June 28, 1957, showing belated compliance with the deficiencies pointed out in the motion to dismiss. The cause was argued and submitted on November 12, 1957.
The attitude of this court on such matters is stated in Louisville Fire & Marine Ins. Co. v. St. Paul Fire & Marine Ins. Co., 252 Ala. 532, 41 So. 2d 585, 586, as follows:
Here the citation, although belated (June 20, 1957), was given nearly five months before submission of the cause to this court and no injury or inconvenience is shown. It follows that the motion to dismiss the appeal must be overruled. See also, Mutual Sav. Life Ins. Co. v. Osborne, 242 Ala. 19, 7 So. 2d 319; Faust v. Baker, 31 Ala.App. 596, 20 So. 2d 727, certiorari denied 246 Ala. 378, 20 So. 2d 731.
The pertinent part of the trial court's findings of fact reads:
This court has applied consistently these two principles in workmen's compensation cases, (1) that the act should be given a liberal construction to accomplish its beneficent purposes, and (2) that if there is any reasonable view of the evidence that will support the conclusion reached by the trial court, the finding and judgment will not be disturbed. Baggett Transportation Co. v. Holderfield, 260 Ala. 56, 68 So. 2d 21, and cases therein cited. But we are forced to the conclusion that there is a total lack of evidence to support the finding that the employee died as a result of a heat stroke or heat exhaustion.
*690 The undisputed evidence showed that the deceased, 75 years of age, had been employed by the Benson-Jackson-Mathers VFW Post at Thomasville to supervise the building of a swimming pool. His immediate superior was one Gillespie. The excavation was several feet deep. The weather was very hot and it was hotter in the excavation than it was at ground level. It was also cooler in the excavation in the morning than it was around noon. On July 19, the day before his death, deceased and other workmen went to a chicken dinner at noon. Between two and three o'clock, deceased went down into the excavation, became hot, felt ill, went to the shade, lay down for a few minutes and then resumed his work. He did no manual labor. At four o'clock that afternoon, deceased quit work, attended a watermelon cutting, ate one slice of watermelon, went home, made no mention of feeling ill, got up the next morning, ate breakfast as usual, went to the job where work started at seven A.M. and, while standing in the excavation a few minutes after seven A.M. talking to Gillespie, he collapsed and was dead within three minutes. A Dr. Henry was called and she pronounced deceased dead upon her arrival. Dr. Henry signed the death certificate and gave heart disease as the cause of death, particularizing that deceased suffered a coronary occlusion due to coronary arterio-sclerosis.
Dr. Henry testified by deposition, under a stipulation that objections to any of her testimony could be made at the trial. When her deposition was read at the trial, several of her statements that it was her opinion that deceased died of a heart attack, or from natural causes and not from heat exhaustion, were objected to and the trial court excluded them on the ground that Dr. Henry did not perform an autopsy. However, she gave the following testimony on cross-examination to which there was no objection or motion to exclude:
In Alabama Pipe Co. v. Wofford, 253 Ala. 610, 46 So. 2d 404, 405, this court reversed an award to the widow of an employee on facts similar but stronger in her favor than for the appellee here. In that case, the claim was that the overheating of the employee caused a heart attack which proved fatal. The employee was performing work which "required considerable physical labor under conditions of overheating in the plant" and suddenly collapsed. The coroner, who had also been an undertaker, "thought the defendant died of a heart attack." There was no autopsy or medical testimony. The court said:
In the instant case, the deceased did no manual labor and the only condition conducive to overheating or heat exhaustion was the weather, which is normally hot in Clarke County in July. There was no autopsy, but there was medical testimony by a local doctor. She specifically testified that, in her opinion, deceased died of natural causes and that his clothes were not wet with perspiration when she examined his body.
Appellee urges in brief that "the testimony of this doctor was not conclusive so far as the trial court was concerned." We are in accord with that statement. We have held in a workmen's compensation proceedings that experts' opinions are not conclusive on triers of facts even though uncontroverted. Warrior Stone & Contracting Co. v. De Foor, 241 Ala. 227, 2 So. 2d 430; 9 Ala.Dig., Evidence. But here, the only evidence given by any witness as to the cause of death was the doctor. Eliminating her testimony, we still have evidence only that the deceased dropped dead on the job early in the morning while talking with his boss. We are constrained to hold that there is no evidence that deceased died of a heat stroke. What was said in Williams v. Tennessee Valley Butane Co., 265 Ala. 145, 90 So. 2d 84, 87, quoting from the Wofford case, supra, is applicable here:
It is also our opinion that there is no evidence in the record to support the finding that deceased's average weekly earnings were $40 per week. His widow testified that he made $1 per hour, that if he had worked 48 hours in one week, he would have made $48. But the only evidence of his actual earnings were from the books of the paymaster and those showed payments in the four weeks preceding his death to be $16, $28.50, $45 and $36. These figures show an average of $31.38.
The judgment must be reversed.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur. | December 19, 1957 |
fc3973cd-4f43-4864-873b-5656d5ccadc1 | Drake v. PENNSYLVANIA THRESHER. & F. MUT. CAS. INS. CO. | 92 So. 2d 11 | N/A | Alabama | Alabama Supreme Court | 92 So. 2d 11 (1957)
Amos DRAKE
v.
PENNSYLVANIA THRESHERMEN & FARMERS' MUTUAL CASUALTY INSURANCE COMPANY.
6 Div. 12.
Supreme Court of Alabama.
January 10, 1957.
*13 Lipscomb, Brobston, Jones & Brobston, Bessemer, for appellant.
London & Yancey and Jas. E. Clark, Birmingham, for appellee.
MERRILL, Justice.
The appellant, Amos Drake, was injured on February 5, 1952, while riding as a passenger in a bus being operated by the New Deal Riding Club. He procured a judgment against said Club in the amount of $2,500 and sought to enforce it by a third party action under a liability insurance policy issued to the Club by the appellee, Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance Company.
The complaint was in one count with a copy of the insurance policy attached as an exhibit. The pleadings progressed to defendant's rejoinder, the effect of which was that prior to the date of plaintiff's injury, this court had affirmed a decree of the Circuit Court of Jefferson County, in Equity, holding a permit issued to New Deal Riding Club by the Alabama Public Service Commission to be null and void; and therefore, that on February 5, 1952, the New Deal Riding Club was not operating as a common carrier under any valid permit or certificate issued to it by the Alabama Public Service Commission.
To this rejoinder, plaintiff interposed a demurrer which was overruled and because of the adverse ruling of the court, plaintiff took a nonsuit and appealed to this court.
At the inception of the policy of insurance, the New Deal Riding Club was operating under a certificate of convenience and necessity issued by the Alabama Public Service Commission pursuant to the Alabama Motor Carrier Act of 1939, Code 1940, T. 48, § 301(1) et seq. On October 15, 1951, in The Case of Ala. Public Service Comm. v. Higginbotham, 256 Ala. 621, 56 So. 2d 401, this court affirmed (and on January 31, 1952, denied application for rehearing) the decree of the circuit court referred to in defendant's rejoinder.
The policy of insurance which the appellee issued to the New Deal Riding Club was to insure against liability arising from the operation of two vehicles, one a 1946 Chevrolet bus, and the other a 1942 Ford bus. Any vehicle used by the insured but not owned by it was also covered specifically by the policy while it was being used as a "temporary substitute" for either of the two described buses.
The bus involved in the accident was a 1947 Studebaker bus which was owned and regularly operated by the New Deal Riding Club and, therefore, did not come within the terms of the policy.
As a part of the policy of insurance, there was an attached endorsement to the effect that the policy was "written in pursuance of and is to be construed with an Act of the Legislature of Alabama approved July 9, 1940, known as the `Alabama Motor Carrier Act of 1939.'" A portion of that Act as amended, Code 1940, T. 48, § 301(16), provides:
If the New Deal Riding Club had been operating under a certificate of convenience and necessity, the insurer would have been liable to pay a judgment procured against the insured involving a vehicle other than those specifically described in the policy. Fidelity & Casualty Co. of New York v. Jacks, 231 Ala. 394, 165 So. 242.
The appellee does not contend that the policy of insurance was not in force on February 5, 1952. It concedes that the policy was in effect, but insists that the policy cannot be aided by Alabama Motor Carrier Act because the insured was not operating "under certificate or permit" at the time of the accident. The pivotal inquiry therefore is whether the voiding of the certificate limits the insurer's liability to the terms of the policy. By overruling plaintiff's demurrer to defendant's rejoinder, the court below has held that it does, and we think it was correct in so holding.
As already stated, the insurance policy would not, by its terms, cover the Studebaker bus which was involved when plaintiff was injured. Paraphrasing what this court said in the Jacks case, supra, we are not impressed with the suggestion that this bus should be treated as a "temporary substitute" for either of the other buses described in the policy. We also note that appellant does not now insist that the Studebaker bus was a "temporary substitute." Coverage of the bus can only result from reading into the policy T. 48, § 301(16), as amended, as provided in the Alabama Public Service Commission endorsement. That brings us to a consideration of what the statute actually says. It requires that the policy of insurance be "conditioned to pay * * * any final judgment recovered against such motor carrier for bodily injuries to or the death of any person resulting from the negligent operation * * * of motor vehicles under certificate or permit, or for loss or damage to property of others."
It seems to us that the Legislature made it perfectly clear that the coverage in such policies should be on vehicles "under certificate or permit" and it is conceded by all parties that there was no valid certificate or permit in existence applying to the New Deal Riding Club or any of its vehicles when appellant's injury occurred. Some statutes and ordinances in other jurisdictions provide that the insurance policy shall continue until the insured ceases to do business. Sills v. Schneider, 197 Wash. 659, 86 P.2d 203, or for continuing liability, Cook v. Checker Mut. Auto. Ins. Co., 337 Mich. 667, 60 N.W.2d 194, or contain no terms of limitation, Bentley v. Fayas, 253 Wis. 531, 34 N.W.2d 675; Briggs v. Burk, 172 Kan. 375, 239 P.2d 981.
But we do not have to arrive at the legislative intent by construction because the language of the statute is unambiguous and the intent clearly expressed that the policies shall cover vehicles "under certificate or permit." We have previously held that courts can only learn what the Legislature intended by what it has said, and we have no right to stray into mazes of conjecture or search for an imaginary purpose in construing a statute; and where the language of a statute is unambiguous, the clearly expressed intent must be given effect, and there is no room for construction. State v. Bay Towing & Dredging Co., 264 Ala. 187, 85 So. 2d 890.
*15 We have also said that while there are occasions when courts must correct or ignore or supply obvious inadvertences in order to give a law the effect which was primarily intended by the Legislature, we do not subscribe to the doctrine that the judiciary can or should usurp the legislative function in a republican form of government; and, where the statute is plain, we must leave the amendment of it to the Legislature. Hamilton v. Smith, 264 Ala. 199,86 So. 2d 283.
In Baggett v. Jackson, 244 Ala. 404, 13 So. 2d 572, when passing on the identical words in § 301(16), but on another point, we said the language of the statute was plain and unambiguous. Therefore, irrespective of what we might think it desirable for the statute to say, we are constrained to hold that it does not apply to policies where the vehicles are not "under certificate or permit" of the Public Service Commission.
This specific question has not been before this court prior to this time and we have not found or been cited to a case exactly in point.
There is no question but that the primary purpose of the Motor Carrier Act is to provide protection for the public. See Baggett v. Jackson, 244 Ala. 404, 13 So. 2d 572; Employers Ins. Co. of Alabama v. Johnston, 238 Ala. 26, 189 So. 58. In Commercial Standard Ins. Co. v. Robertson, 6 Cir., 159 F.2d 405, the court was faced with a problem similar to ours which involved the Interstate Commerce Act, 49 U.S.C.A. § 301 et seq. In that case, no certificate of convenience and necessity had ever been issued to the insured. We think the language of that court regarding the purposes of the Federal Act is also applicable to the Alabama Act. At 159 F.2d 409, 410, the court said:
See also, Putts v. Commercial Standard Ins. Co., 10 Cir., 173 F.2d 153; Allen v. American Fidelity & Casualty Co., 5 Cir., 54 F.2d 207; Smith v. Republic Underwriters, 152 Kan. 305, 103 P.2d 858, and Fullmer v. Farm Bureau Mut. Automobile Ins. Co., 350 Pa. 451, 39 A.2d 623. The judgment of the circuit court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | January 10, 1957 |
47470abc-8755-4a5c-b310-123ddc96a3d8 | Byrd v. Sorrells | 93 So. 2d 146 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 146 (1957)
T. B. BYRD et al., Members of Review Committee (of Geneva County), Production and Marketing Administration, United States Department of Agriculture,
v.
Buford G. SORRELLS.
4 Div. 828.
Supreme Court of Alabama.
January 10, 1957.
Rehearing Denied March 7, 1957.
*147 J. Stephen Doyle, Jr., Neil Brooks, Sp. Attys. Gen., Hartwell Davis, U. S. Atty., Ralph M. Daughtry, Asst. U. S. Atty., Montgomery, Linton B. West, Wm. J. Foster, Atlanta, Ga., and Donald A. Campbell, Attys., U. S. Dept. Agriculture, Washington, D. C., for appellants.
E. C. Boswell and Jas. W. Kelly, Geneva, for appellee.
LAWSON, Justice.
This suit was instituted in the circuit court of Geneva County, in equity, pursuant to the provisions of §§ 361-368 of the Agricultural Adjustment Act of 1938, sometimes referred to hereafter as the Act. 52 Stat. 62-64, 7 U.S.C.A. §§ 1361-1368.
Under the Act, supra, quotas in each county are allotted by a County Committee elected by the farmers in the county. For the year 1954 the Geneva County Committee fixed the peanut acreage allotment for the farm of Buford G. Sorrells at 9.3 acres. Sorrells being dissatisfied with the allotment sought and obtained a review by the appropriate Review Committee composed of farmers appointed by the Secretary of Agriculture. In accordance with the regulations of the Secretary of Agriculture, a hearing was held by the Review Committee, which thereafter made its findings of fact and affirmed the action of the County Committee. Sorrells thereupon commenced this action in the circuit court of Geneva County, in equity, against T. B. Byrd, R. R. Donaldson, and M. C. Wilks, Members of the Review Committee, as allowed by the Act, supra. 7 U.S.C.A. § 1365. In accordance with the provisions of the Act, a transcript of the record upon which the determination of the Review Committee was madeincluding its findings of factwas duly certified by the Review Committee to the court in which the bill was filed.
In his bill as amended, Sorrells claimed that the 1954 peanut allotment for his farm should have been 20 acres rather than 9.3 acres as fixed by the County Committee and averred, in substance, that the deficiency resulted (1) because of the failure of the County Committee to take into consideration the tillable acreage of his farm and "other factors as provided by the Agriculture [sic] Adjustment Act of 1938, as amended, * * *" and (2) the refusal of the Review Committee to permit him to introduce evidence going to show the tillable acreage available on the farm and the peanut allotment for the farm for the years 1947 through 1950, which evidence it was averred was material, relevant and essential to a correct determination of the peanut allotment for 1954. The bill as amended prayed in part that the equity court make and enter "such orders, as it determines necessary, requiring said Review Committee to re-determine their findings upon this cause and directing said Review Committee to allow the introduction of and to consider evidence of your complainant relating to the tillable acreage available of said farm and the peanut allotment of said farm for the years, 1947 through 1953."
The amended answer of the respondents to the bill as amended contains a denial of the averments of the amended bill, as well as allegations to the effect that the 1954 acreage allotment established by the County Committee and affirmed by the Review Committee was proper and correct.
The case was heard in the equity court on the pleadings and the transcript of the record as certified to that court by the Review Committee. The equity court decreed that the cause be transferred back to the Review Committee for the purpose of considering "evidence relating to the tillable acreage available and the peanut allotment for said farm for the years 1947 through 1953, as material evidence to be considered in their re-determination of a correct peanut allotment for the year, 1954, for said farm."
On motion of the respondents the trial court set aside and vacated the decree just referred to and granted the respondents a *148 rehearing, with permission to file an amendment to their answer.
Thereafter, on September 7, 1954, the equity court rendered a decree which was entered on September 13, 1954, which decree will sometimes be referred to hereafter as the decree of September 13th, providing that the cause be remanded to the Review Committee "for the purpose of considering additional evidence to be taken in this cause and for a re-determination of their findings in said cause" and in which decree the Review Committee was ordered to "allow the introduction of evidence relating to tillable acreage available and peanut allotment for said farm for the year 1947 through 1953, as material evidence to be considered in their re-determination of a correct allotment for the year 1954, for said farm."
The bond to secure the costs of the appeal to this court by the respondents was approved and filed by the register on February 12, 1955. The certificate of appeal was filed in the office of the clerk of this court on February 22, 1955, and the transcript was filed here on March 4, 1955. The respondents, to whom we will refer hereafter sometimes as the Review Committee and sometimes simply as the appellants, being uncertain as to whether an appeal would lie from the decree entered on September 13, 1954, filed in this court on March 31, 1955, a motion or petition for mandamus in the alternative. The appellee on May 9, 1955, filed here his motion to dismiss the appeal. Submission here on behalf of the appellants was on the appeal and on the petition for mandamus and on behalf of the appellee on his motion to dismiss the appeal.
Grounds of the motion to dismiss the appeal are to the effect that the decree sought to be reviewed is not appealable.
It is settled that this court is without jurisdiction to entertain an appeal from a decree rendered in an equity proceeding unless such decree is either a final decree or is one of the certain interlocutory decrees from which an appeal is authorized by statute. McKleroy v. Gadsden Land & Improvement Co., 126 Ala. 184, 28 So. 660; Ex parte Jonas, 186 Ala. 567, 64 So. 960; Hayes v. Hayes, 192 Ala. 280, 68 So. 351; Graves v. Barganier, 223 Ala. 167, 134 So. 874. The same rule, of course, applies in regard to judgments entered on the law side of the circuit court. See Bentley v. Knox, 258 Ala. 377, 62 So. 2d 921.
It is not insisted, and it could not be successfully done, that the decree presently under consideration is of the kind of interlocutory decree from which an appeal is authorized by statute.
However, the appellants do contend that the decree of September 13th resolved all of the legal issues before the court, ascertained and declared the rights of the parties, settled the equities, and, therefore, for the purpose of appeal, it must be considered as a final decree. If the decree did have that effect there could be no doubt of its finality for the purpose of review by this court, for in several cases we have held, as we did in Ex parte Elyton Land Co., 104 Ala. 88, 15 So. 939, 940, that: "The test of the finality of the decree to support an appeal is not whether the cause remains in fieri, in some respects, in the court of chancery, awaiting further proceedings necessary to entitle the parties to the full measure of the rights it has been declared they have, but whether the decree which has been rendered ascertains and declares these rights. If these are ascertained and adjudged, the decree is final, and will support an appeal." See Kimbrough v. Dickinson, 251 Ala. 677, 39 So. 2d 241, and cases cited. But the decree from which the appellants seek to appeal does not in our opinion settle the basic issue between the parties, the peanut acreage allotment for the farm of Sorrells for the year 1954, nor does it settle any other issue *149 of fact between the parties. The decree simply remands the cause back to the Review Committee, an administrative agency, for a redetermination of its findings based on additional evidence which it is ordered to consider.
As far as we are advised, this court has never been called on to determine whether a decree or judgment of a trial court remanding a cause to an administrative agency for further action is such a final decree as will support an appeal.
We have concluded that the finality of such a decree or order depends upon what remains to be done by the administrative agency after remandment by the trial court. In other words, the character of the acts which remain to be done by the agency is the factor which determines whether the order of remandment is final in the sense that it will support an appeal. If nothing more than purely ministerial action is required of the administrative agency after remandment, then the order is final. Colonial Liquor Distributors v. O'Connell, 295 N.Y. 129, 65 N.E.2d 745. On the other hand, where, as here, the applicable law authorizes the trial court to remand the cause to the administrative agency under certain circumstances, for the purpose of taking additional testimony and of making a redetermination of its findings of fact, a decree remanding the cause for those purposes is not sufficiently final to support an appeal. Colonial Liquor Distributors v. O'Connell, supra; Gazdun v. Bruckman, 280 N.Y. 621, 20 N.E.2d 1007; Begent v. Noyes, 284 N.Y. 229, 30 N.E.2d 485.
The motion to dismiss the appeal must be granted.
As heretofore shown, the controversy concerns the peanut acreage allotment to the Sorrells farm for the year 1954. Although the motion to dismiss the appeal did not raise the point, this court at the time the case was argued and submitted here raised the question of mootness, since the appeal was not taken until February of 1955 and submission here was several months later.
The appellants, since submission, have filed a reply brief which treats the grounds of the motion to dismiss the appeal but which makes no reference to the question of mootness.
It is, of course, apparent that no order of this court can give to Sorrells more or less peanut acreage during the year 1954 than was fixed by the Review Committee.
This court has said that as a general rule it will not decide questions after their decision has become useless. Ex parte McFry, 219 Ala. 492, 493, 122 So. 641, and cases cited. In the McFry case it was observed: "If a case has become a moot case, there is no necessity for a judgment, or no end that the law recognizes sufficient to be accomplished by the judgment sought, the court will decline to consider the merits, and dismiss the case."
Some state courts have adopted an exception to the general rule of mootness by deciding moot cases when questions of great public interest are involved which can be settled by the court's decision. One of the reasons for the mootness ruleeconomy of judicial endeavoris said not to apply where the questions are very important to the whole public.
Assuming arguendo that an authoritative decision on the merits of this case would be sufficiently important to the public as to invoke the public interest exception, we are convinced that our decision would not settle the questions presented, which concern the construction of an Act of Congress as well as the construction and validity of certain rules and regulations promulgated by the Secretary of Agriculture of the United States. Hence, we feel that the public interest exception to the rule of mootness should not be applied here.
*150 Any pronouncement by this court on the merits of this case would be in the nature of an advisory opinion on matters which can only be finally determined in the Federal courts. It has been held that a suit in a state court to review a decision of a Review Committee denying application for increase in marketing quota is a "`suit of a civil nature'" "`arising under a law of the United States'" so as to be removable to federal court. Larking v. Roseberry, D.C., 54 F. Supp. 373, 374.
The appeal is dismissed. Application for mandamus is denied.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | January 10, 1957 |
7f79ab17-1415-4b1a-a38c-cb8af34d8fd7 | Ex Parte Rice | 92 So. 2d 16 | N/A | Alabama | Alabama Supreme Court | 92 So. 2d 16 (1957)
Ex parte Roger F. RICE.
6 Div. 56.
Supreme Court of Alabama.
January 10, 1957.
*17 Roger F. Rice, pro se for petitioner.
White, Bradley, Arant, All & Rose and David J. Vann, Birmingham, for respondent.
MERRILL, Justice.
On December 7, 1955, petitioner sued Soundscriber Sales Corporation, et al. in trespass, trover and detinue. Defendant had notices and subpoenas duces tecum served on petitioner and one witness to take their depositions under the provisions of Act No. 375, Acts of Alabama 1955, Vol. II, page 901. Petitioner moved to strike the subpoenas on various grounds, including objections that the act was unconstitutional. The motion was overruled, but the taking of depositions was stayed pending action by this court on petitioner's application for mandamus, by which he seeks to review the respondent's order overruling his motion.
The two basic issues raised in the instant case are:
(1) Does Act 375 provide for the use of its procedures in the Circuit Court for the Tenth Judicial Circuit in a case commenced on the law side of that Court?
(2) As applied in civil cases commenced on the law side of a Circuit Court of general jurisdiction, is the Act constitutional under the sections 1, 5, 6, 7, 10, 11, 13, 35, 36, 42, 43, 44, 45, 61, 62, 63, 64, 95 and 139 of the Constitution?
Appellant contends that the act is void for uncertainty in that it "has failed to designate in which Court these depositions apply" and the "act is so wide in its scope that it could have application to the Criminal Courts."
Act 375 is principally copied from certain provisions of the Federal Rules of Civil Procedure, Rules 26, 28, 29, 30, 32, 37, 28 U.S.C.A., with some additions and deletions to make it conform to other Alabama statutes and nomenclature. The general rule of construction is that, upon the adoption of a law from another jurisdiction in which the language of the act has received a settled construction, the Legislature is presumed to have adopted it as so construed in that jurisdiction. Galloway Coal Co. v. Stanford, 215 Ala. 79, 109 So. 377; Wooten v. Roden, 260 Ala. 606, 71 So. 2d 802. The Federal Rules of Civil Procedure were designed for, and confined to, use in civil actions in Federal Courts, and, in the absence of a showing of legislative intent to the contrary, it will be presumed that Act 375 was intended for use in civil actions in our state courts.
We agree with petitioner that the act is uncertain as to all courts to which it may be applicable, but we are certain that it was intended that it should apply to a civil action at law in a circuit court having general jurisdiction, as here, and that is all that we are called upon to decide, or do decide, on that point in the instant case.
We come now to the second issue, the alleged unconstitutionality of the act under the cited sections of our Constitution.
It is our duty to uphold a law which has received the sanction of the legislature, unless we are convinced beyond a reasonable doubt of its unconstitutionality. State ex rel. Bozeman v. Hester, 260 Ala. 566, 72 So. 2d 61; Yeilding *18 v. State ex rel. Wilkinson, 232 Ala. 292, 167 So. 580; Falconer v. Robinson, 46 Ala. 340.
Sections 61, 62, 63 and 64 of the Constitution relate to legislative procedure for enactment of statutes, and compliance with these constitutional provisions is to be presumed until the contrary is made to appear. Rogers v. Garlington, 234 Ala. 13, 173 So. 372; State ex rel. Attorney General v. Buckley, 54 Ala. 599, 613. The mere statement or allegation by petitioner that the act violated these four sections of the Constitution is not sufficient to overcome the stated presumption.
Appellant urges that the act violates § 45 of the Constitution in that the title is not sufficiently comprehensive. In State ex rel. Bozeman v. Hester, supra [260 Ala. 566, 72 So. 2d 66], we said in reference to a similar contention:
The title to Act 375 reads:
The title contains only one subject, that being included prior to the first semicolon. The remainder of the title is merely a catalogue or index of powers and duties to be found in the body of the act, all of which are germane to the main subject and purpose of the act. We have held that when the subject is expressed in general terms, as here, the Constitution is satisfied if all that follows is referable and cognate to the subject so expressed. Alabama State Bridge Corp. v. Smith, 217 Ala. 311, 116 So. 695; Ballentyne v. Wickersham, 75 Ala. 533.
The title is defective in that the fifth word preceding the semicolon should have been "or" instead of "of." This mistake is self-correcting, both by the application of common sense and by comparison with the language of the first sentence of § 1 of the Act. We have said that any apparent mistakes in the wording of a statute will be corrected, where the other provisions of the act or the legislative journals furnish means of correcting such apparent mistakes as will fairly carry out the intent of the Legislature. Henry v. McCormack Bros. Motor Car Co., 232 Ala. 196, 167 So. 256; Hooper & Nolen v. Birchfield, 115 Ala. 226, 22 So. 68; Harper v. State, 109 Ala. 28, 19 So. 857.
Petitioner next urges that the act violates §§ 42, 43, 44 and 139 of the Constitution in that the act is an encroachment on judicial powers. This question was decided *19 contrary to this contention in Ex parte Foshee, 246 Ala. 604, 21 So. 2d 827, and Ex parte Leeth National Bank, 251 Ala. 498, 38 So. 2d 1.
It is also urged that the act violates the "personal freedom" sections, 1, 5, 35 and 36. Without discussing the many interpretations and constructions of these sections, we think it suffices to say that the legislature could provide for this method of taking depositions for discovery or for use as evidence, after the commencement of a civil action on the law side of the circuit court, without violating any inalienable or other right of the individual, and without impinging upon the rule against class and unequal legislation. See Sheppard v. Dowling, 127 Ala. 1, 11-12, 28 So. 791, 795; Tranum v. Stringer, 216 Ala. 522, 113 So. 541.
The next grouping of sections of the Constitution which it is claimed are violated by the act are §§ 6, 7, 10, 11, 13 and 95. Sections 6 and 7, by their provisions, refer to criminal or quasi-criminal proceedings and need not here be discussed. Sections 10, 11 and 95 clearly cover areas other than the question before us. There remains only § 13, the "due process" section of our Constitution.
We have held that due process of law means notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing. Frahn v. Greyling Realization Corp., 239 Ala. 580, 195 So. 758; Garrett v. Reid, 244 Ala. 254, 13 So. 2d 97. Sections 7 and 15 of the act provide for reasonable written notice. Section 3 provides for cross-examination by opposing counsel. Section 4 provides that the admissible part of the deposition or evidence can only be used against any party who was present, or represented at, or had due notice of, the taking of the deposition. Sections 5 and 17 provide for a full hearing before a court on all objections to questions asked. Sections 9, 10, 12, 13 and 15 provide safeguards to parties and witnesses, including protection from "annoyance, embarrassment, or oppression." We think every element of due process is present, in, and adequately provided for, in the act.
The Supreme Court of the United States, in discussing the Federal Rules of Civil Procedure in Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 392, 91 L. Ed. 451, said:
Once again, we stress the fact that we have decided only the questions presented to us. The act apparently was hastily drawn and the draftsmanship was not careful or studied. Another illustration than the self-correcting error previously referred to, is the reference in § 10 to "Subdivision *20 (h)." This evidently meant to refer to § 9 of the act, and is evidently a reference to Rule 30, subsection (b), because the language appears to be copied from Rule 30, subsection (b) of the Federal Rules of Civil Procedure. We have included this paragraph in the hope that the Legislature may see fit to define clearly what courts are included within the act and rid the act of errors due to crude draftsmanship.
We would also be understood as not passing upon the specific items listed in the subpoenas duces tecum. Petitioner has an adequate recourse within the act if he deems the requests for documents to be too broad or comprehensive.
The judgment of the lower court was without error and the petition for writ of mandamus is denied.
Writ denied.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | January 10, 1957 |
61074466-7551-4eab-81e4-902e117b38c8 | Taylor v. Johnson | 93 So. 2d 143 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 143 (1957)
Emmett W. TAYLOR
v.
N. J. JOHNSON.
3 Div. 759.
Supreme Court of Alabama.
February 28, 1957.
Miles S. Hall and J. O. Sentell, Jr., Montgomery, for appellant.
Robert Coburn, Jr., Montgomery, for appellee.
SIMPSON, Justice.
This appeal brings under review the constitutionality of § 260, Title 7, Code of 1940, as amended. The amending act is No. 74, General Acts of Alabama, 1953, Vol. I, p. 103.
The amendatory act, hereafter quoted, is in material respects similar to old § 260, *144 prior to the amendment, except with the added proviso, which we will italicize, relative to ascertaining the plaintiff's damages without a jury where the defendant is in default and the plaintiff had originally demanded a jury.
Act No. 74, now codified as § 260 of the Code, 1955 Cum.Pocket Parts, pp. 64-65, provides:
"An Act
"Be It Enacted by the Legislature of Alabama:
As stated, the italicized portion above which was added to old § 260 is the only material change in that section.
In the case at bar, the plaintiff had demanded a jury, but the defendant was in default, and pursuant to the added proviso, supra, plaintiff withdrew his jury demand and the court ascertained his damages without a writ of inquiry to the jury. This appeal seeks to test the constitutionality of the section as amended.
The proposition advanced for a reversal is that Act No. 74, amending old § 260, is unconstitutional as violating that part of § 45 of our Constitution which stipulates that "each law shall contain but one subject, which shall be clearly expressed in its title. * * *" The argument runs that the amendatory matter, rather than having been embodied in § 260, should have been in § 265, Title 7, which provides:
The case has been well argued by able counsel, but we are in disagreement with the contention. No doubt the amendatory matter could well and properly have been placed in § 265, but incorporating it in another section where it is also germane to *145 that section does not make the section bifurcate as to subject matter. As we read old § 260, it related to a subject where the added matter is manifestly immanent therein.
The rule is that the title of an act which purports merely to amend a certain section of the Code, cannot, conformably with § 45, add a new and different subject. Dorsky v. Brown, 1951, 255 Ala. 238, 51 So. 2d 360; Bertolla & Sons v. State, 1945, 247 Ala. 269, 24 So. 2d 23.
But the expression in Kendrick v. Boyd, 1951, 255 Ala. 53, 51 So. 2d 694, 696, is particularly applicable here:
The subject of legislation in a proposed statute amending a Code section, identified in the title by the number of the section, is the subject matter of the section to be amended. The amendment incorporated in the new section may deal with any feature of the section to be amended. The test is that the amendment must be germane to the section being amended. When a bill by its title purports to amend a numbered section of the Code, the attention of the legislator is directed to the statute, thus identified, and he may expect the amendment to deal with any feature of the existing section. State ex rel. Farmer v. Haas, 1940, 240 Ala. 30, 196 So. 873. See also State v. Elliott, 1945, 246 Ala. 439, 21 So. 2d 310; State ex rel. Farmer v. Haas, 1940, 239 Ala. 16, 194 So. 395; State ex rel. Bates v. Baumhauer, 1940, 239 Ala. 476, 195 So. 869.
In Yeilding v. State, 232 Ala. 292, 296, 167 So. 580, 583, it was declared that "A statute has but one subject, no matter how many different matters it relates to, if they are all cognate, and but different branches of the same subject." See also Ballentyne v. Wickersham, 1883, 75 Ala. 533; Norton v. Lusk, 1946, 248 Ala. 110, 26 So. 2d 849.
Finally, the oft repeated rule, that the power of striking down a legislative enactment is a delicate one, one to be used with great caution and only when the court is convinced of its unconstitutionality beyond a reasonable doubt. Kendrick v. Boyd, 1951, 255 Ala. 53, 51 So. 2d 694; Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So. 2d 810; Tucker v. State, 1935, 231 Ala. 350, 165 So. 249; Smith v. Stiles, 1916, 195 Ala. 107, 70 So. 905.
Applying the above well known canons of constitutional construction to the case in hand, we conclude that § 260 of Title 7, as amended, is not violative of § 45, Alabama Constitution. The subject matter of old as well as amended § 260 is the trial and appellate review thereof of civil proceedings at law by the court. The amendatory matter relates to a trial by the court where the defendant defaults. We regard it, therefore, as germane to old § 260, and as aforesaid it does not contravene § 45 of our Constitution.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | February 28, 1957 |
6b2d0125-5d3d-485b-a408-3ce43cb33709 | Doswell v. Hughen | 94 So. 2d 377 | N/A | Alabama | Alabama Supreme Court | 94 So. 2d 377 (1957)
Houston J. DOSWELL
v.
Lillian Doswell HUGHEN et al.
4 Div. 902.
Supreme Court of Alabama.
February 28, 1957.
Rehearing Denied April 25, 1957.
*378 C. R. Paul, Geneva, and A. A. Smith, Hartford, for appellant.
E. C. Boswell and Jas. W. Kelly, Geneva, for appellees.
SIMPSON, Justice.
Complainants, appellees here, seek to have set aside a deed executed by them to respondent Houston J. Doswell. Upon the overruling of the demurrer to the complainants' bill, as amended, the respondent has appealed.
The grounds upon which the deed is sought to be set aside are fraud and undue influence exercised by the grantee, appellant, upon the appellees, grantors.
We will consider only those grounds of demurrer insisted upon in brief. Groover v. Darden, 1953, 259 Ala. 607, 68 So. 2d 28; Cook v. Whitehead, 1951, 255 Ala. 401, 51 So. 2d 886; Howard v. Stewart, 1949, 252 Ala. 581, 42 So. 2d 252.
We will refer to the two governing rules.
Where one seeks to have a deed set aside upon the ground of fraud, the facts relied upon to show the fraud must be averred. Birmingham Trust & Savings Co., v. Shelton, 1935, 231 Ala. 62, 163 So. 593; Strickland v. Strickland, 1921, 206 Ala. 452, 90 So. 345; Richardson v. Curlee, 1934, 229 Ala. 505, 158 So. 189; 4 Ala. Dig., Cancellation of Instruments.
But in averring undue influence as a ground for setting aside the deed, it is not necessary to allege with particularity the quo modo by which the undue influence was exerted. It is sufficient to aver in general terms that the execution of the deed was the result of the undue influence of a named person. Cox v. Parker, 1924, 212 Ala. 35, 101 So. 657; Strickland v. Strickland, supra; Roberts v. Cleveland, 1931, 222 Ala. 256, 132 So. 314; Hughes v. Duke, 251 Ala. 220, 36 So. 2d 300. If the pleader, however, undertakes to give the facts constituting the quo modo by which the undue influence was exerted, the facts must be sufficient to that end. Cox v. Parker, supra; Roberts v. Cleveland, supra.
It appears from the bill that appellant is a brother to the appellees. Appellees, on November 17, 1949, upon a recited consideration of $10 and other valuable consideration, executed a conveyance of their interest in certain real property to appellant. Prior thereto, appellant, appellees, and other members of the family whose interests are material to the case, were joint owners of the property. Appellees aver that the real consideration for the conveyance was the sum of $47.30 per acre which was in fact paid to each of them and certain promises made by the appellant grantee; appellees aver that they relied upon the promises made by appellant, and in reliance thereon were induced by appellant to convey their interests in the lands to him. They also aver that at the time appellant made the promises he had no intention of fulfilling them, that he has failed to fulfill the promises, and now denies that he ever made them. The value of the property at the time the conveyance *379 was executed was $100 an acre, it is averred. The promises made by appellant which appellees aver constitute a part of the consideration are as follows: Appellant would not marry nor would he make a will disposing of the lands; appellant would not sell the lands and at his death title to said lands would go to them, or their heirs, who would then constitute the joint owners thereof; appellant would pay each of the appellees at a specified time each year $100 until such an amount was paid to them as would equal their share in a sale of the lands at $100 an acre; appellant would provide a home for Leroy Doswell, one of the appellees, for so long as he, appellant, lived and would employ Leroy Doswell at $150 per month for so long as he, appellant, lived.
With respect to the allegations of fraud. The mere failure to perform a promise does not authorize a rescission, yet if a material promise, of something to be done in the future, is made by a promisor with no intention at the time of performance and is relied upon by the other party as an inducement, fraud may be predicated thereon where the defrauded party, injured as a result thereof, seeks to set aside the conveyance. Cross v. Maxwell, 1955, 263 Ala. 509, 83 So. 2d 211; Williams v. Williams, 1940, 238 Ala. 637, 193 So. 167; Spencer v. Spencer, 254 Ala. 22(3 & 4), 47 So. 2d 252, Zuckerman v. Cochran, 1934, 229 Ala. 484, 158 So. 324; Schwab v. Carter, 1933, 226 Ala. 173, 145 So. 450; Snell Nat. Bank of Winter Haven v. Janney, 1929, 219 Ala. 396, 122 So. 362; Hyman v. Langston, 1923, 210 Ala. 509, 98 So. 564; Rowland v. Hester, 1921, 206 Ala. 498, 90 So. 910; Clarkson v. Pruett, 1918, 201 Ala. 632, 79 So. 194; Johnson v. Chamblee, 1919, 202 Ala. 525, 81 So. 27; Nelson v. Shelby Mfg. & Imp. Co., 1892, 96 Ala. 515, 11 So. 695; Brock v. Brock, 1889, 90 Ala. 86, 8 So. 11, 9 L.R.A. 287; Manning v. Pippen, 1888, 86 Ala. 357, 5 So. 572; 26 C.J.S., Deeds, § 57.
"The essence of the fraud in such cases is not the breach of a promise, but the fraudulent intent not to perform; and such fraudulent intent must exist at the time of the making of the promise. * * *" 3 Pomeroy, Equity Jurisprudence, 5th Ed., § 877d.
As aforesaid, appellees aver several promises made by appellant as a part of the consideration; they also aver that appellant at the time he made the promises had no intention of performing them. As indicating appellant's said intention, they aver that appellant has failed to perform the promises and that he now denies he ever made them. Appellees base their claim to relief on these several material and distinct promises made by appellant. Where one of several promises constituting the consideration of the deed is fraudulently made, the deed may be set aside notwithstanding the fact that others might not be made the basis of a claim for rescission. Hammac v. Skinner, Ala., 89 So. 2d 70. These promises are pleaded cumulatively and as to some the averments as to fraud are sufficient. Where aspects are framed with cumulative grounds for relief, if either ground is sufficient, its force is not impaired by the fact that it is joined cumulatively with another ground, which of itself, will not maintain the equity of the bill. Shipman v. Furniss, 69 Ala. 555; 12 Ala. Lawyer, Creel, Aspects of A Bill In Equity, 238; See also Cooper v. Agee, 222 Ala. 334, 132 So. 173.
We pretermit any consideration of what effect, if any, some of the promises allegedly made by appellant might influence the transaction. Those questions were neither raised nor argued on this appeal.
It is argued that the statute of frauds is involved because the bill does not aver whether or not the promises made by appellant were in writing. But assuming that the promises were oral, if they were so made, and there was a fraudulent intent in obtaining the deed, without intention of performance, and pursuant to it, the promises were not fulfilled, the statute of frauds becomes immaterial; the *380 fraud will vitiate the transaction and remit the grantors to the rights they had prior to the execution of the conveyance. The consideration of the deed is valuable on its face, so that clause was open to parol proof of any other valuable consideration. Manning v. Pippen, 1888, 86 Ala. 357, 5 So. 572.
The allegations of fraud were not subject to the asserted grounds of demurrer.
With respect to the charge of undue influence. Undue influence is a species of fraud. Shirley v. Ezell, 180 Ala. 352, 60 So. 905. And while the relationship existing between brothers and sisters does not of itself create a confidential relation, it is a circumstance to be considered in determining the question of whether in fact such a relation exists. Abrams v. Abrams, 1932, 225 Ala. 622, 144 So. 828; Bigelow, The Law of Fraud, 262. Appellees aver they were not educated and lacked business experience; the appellant, on the other hand, was a successful business man; appellees looked to appellant for advice in the management and control of the lands; appellees reposed confidence in their brother, the appellant, and relied upon his suggestions and advice. Appellant, after frequent visits to appellees, did persuade them to convey. The appellees also aver that in conveying their interest in the lands to appellant, they were dominated and controlled by the will and desire of the appellant and that the conveyance was not the free and voluntary act of the appellees. The averments are sufficient to show that a confidential relationship did exist and that the conveyance was the result of undue influence. Roberts v. Cleveland, supra; Cox v. Parker, supra; Noble v. Noble, 1912, 255 Ill. 629, 99 N.E. 631; Shipman v. Furniss, supra; Dillard v. Hovater, 1949, 252 Ala. 62, 39 So. 2d 386.
Appellant argues that the failure of appellees to offer to restore that part of the consideration which the bill shows has been paid to them renders the bill demurrable. This is not the law. Appellees offer to do equity and pray that the court determine the sum of money to which appellant would be entitled in order that he be placed in status quo. This is sufficient. Rowland v. Hester, supra; Strickland v. Strickland, supra.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | February 28, 1957 |
eb93f442-0a10-4de0-bbf7-0a89a324ac65 | Christian v. Reed | 92 So. 2d 881 | N/A | Alabama | Alabama Supreme Court | 92 So. 2d 881 (1957)
G. E. CHRISTIAN
v.
Flaudie M. REED.
6 Div. 848.
Supreme Court of Alabama.
February 21, 1957.
R. G. Redden, Vernon, and Bill Fite, Hamilton, for appellant.
Young & Young, Vernon, for appellee.
COLEMAN, Justice.
This is an appeal from a decree of the Circuit Court of Lamar County, In Equity, establishing a boundary line between lands of appellant on the north and lands of appellee on the south.
The appellant, complainant below, filed his bill alleging that appellant and appellee are coterminous landowners; describing appellant's land; also describing appellee's land; and alleging the true boundary line to be as follows:
Appellee, respondent below, filed her answer admitting coterminous ownership; admitting correctness of descriptions in the bill; denying that the true line is as claimed by appellant; and alleging the true line to be as follows:
Appellee also alleged that she and her predecessors in title have had adverse possession of the land on the south side of the line as claimed by her for more than 20 years preceding the filing of the bill of complaint, and that said line has been recognized as correct for more than said 20 year period.
The trial judge established the boundary line as claimed by the respondent-appellee.
The only assignment of error is:
The evidence was taken ore tenus before the trial judge.
The only question before this court is whether or not the finding of the trial court is unsupported by the evidence or is palpably wrong so that we ought to reverse that decree.
"A decree establishing a line between coterminous lands on evidence submitted ore tenus in open court is presumed to be correct. * * * And in such a case the trial court's conclusions will not be disturbed unless palpably erroneous or manifestly unjust. * * *" Holoway v. Carter, 261 Ala. 51, 72 So. 2d 728; 2 Ala. Dig., Appeal and Error.
The lands involved in this suit lie on the east side of Walnut Street, are located in Lots 119 and 121 of the Nesmith Addition to Vernon, Alabama, and include also additional land adjoining and lying east of Nesmith Addition, which additional land lies between the extended north and south boundary lines of the respective lots of the parties.
The lots of the subdivision adjoin each other from south to north in the following order: Lot 125 (the southern most lot), Lot 123, Lot 121, Lot 119, and Lot 114 (the northern most lot).
The 1900 plat gives Lot 121 a width of 220 feet from south to north on Walnut Street, and Lot 119 the same width or frontage, being 440 feet for both lots.
In or prior to 1919, Lots 121 and 119 were owned by J. P. Morton and his wife, Belle, or one of them. On later dates, the Mortons conveyed land in those two lots, in four separate parcels.
For convenience in this discussion, these four parcels are designated from south to north as the Maddox, Reed, Christian, and Redus lots, respectively.
In 1919, the Maddox lot on the south was conveyed; the Reed lot on the north was next conveyed in 1928; the next lot on *883 the north, Christian lot, in 1932; and the next north lot (Redus) in 1935.
1919 description of Maddox lot recites in part:
1928 description of Reed lot recites in part:
1932 description of Christian lot recites in part:
Note that in 1932, G. S. Smith owned the Reed lot.
1935 description of Redus lot recites in part:
Through mesne conveyances, appellant now holds the Christian lot, and appellee the Reed lot.
The lengths of the street frontage of these four lots, according to the deeds, from south to north, are respectively: 145, 105, 90, and 92 feet, a total of 432 feet, contrasted with the total frontage of 440 feet for Lots 119 and 121 shown by the original plat. Here is a difference of 8 feet.
Surveyor Estes testified that there was a difference of 8 feet between his measurement of 2356 feet on the ground and the distance of 2348 feet shown on the "Town Plat." The testimony is not clear, but this measurement appears to have been from a starting point "on the south property line of the street south of the courthouse," and measuring south to a ditch at the south boundary of Lot 125.
Estes stated:
Estes testified that in locating the disputed line, he started at the point south of the courthouse mentioned above, and measured south down east side of Walnut Street to locate the southwest corner of Lot 119.
When asked:
"Did you make measurements as to the property line between Defendant and J. T. Maddox?", Estes stated:
"No sir, not particularly."
Surveyor Franks, also called by appellant, had made a survey in this case and *884 established the disputed line 8 feet north of the line established by Estes. The line established by the decree below is the line of stakes set out by this witness, Franks, on December 1, 1953.
Franks also testified that he made a survey starting at the same place Estes started, and from this point, using courses and distances based on the town plat, he found the dividing line between Christian and Reed "8-feet south of the old fence and ditch line," and "it measured about the same" as Estes had found it. Franks also found a discrepancy of 16 feet from the street to the ditch.
On cross-examination, Franks testified that the north boundary line of the Maddox lot is well defined with a fence, except an extension to the road, and that measuring from the extension on the same bearing to the road, he measured 105 feet to the Reed lot, and that it: "came in line with the old fence out there."
He testified further that coming from this direction (south to north) the hedgerow clearly reflected the ownership, and that he found the measurements from the southwest corner of "Judge Maddox's" (Christian's?) to be 90 feet south of Joe Price Redus.
He found a stake there with a tack in the end and ran a line to the street; that when he ran this line a fence was there just north of the ditch, the fence did not go all the way.
Page 81 of the transcript shows the following question to Franks and his answer:
Anderson owned and occupied the Christian lot ten years, 1932 to 1942. G. S. Smith owned and occupied the Reed lot for 21 years, 1928 to 1949, which included all the time Anderson was his neighbor on the north.
Smith had bought the Maddox lot in 1919 and sold to J. T. and Gaila Maddox in 1923. Smith bought the Reed lot in 1928. Smith testified that the Maddox lot, Reed lot, and Christian lot all start from the southwest corner of the Maddox lot, and that the Maddox lot and Reed lot were measured from the southwest corner of the Maddox lot.
Smith testified that he built a house on the Reed lot; had a garden extending to the north boundary of the lot and cultivated that lot to the north boundary; that the north boundary of that lot was recognized as the north boundary of the Reed lot; that Anderson bought the Christian lot from the Mortons and accepted the north line of Smith's garden fence as the boundary line between them.
The evidence shows that there was a Pyracantha bush, some crape myrtle bushes and a birdbath near the disputed line. Smith and Anderson both testified that these items were located on the Reed lot. The evidence shows that the Estes line would place the Pyracantha bush and birdbath on the Christian lot and would run through the crape myrtle bushes. The Franks' line places these items on the Reed lot.
Anderson testified that when he bought the Christian lot, he established the north line of that lot measuring 90 feet northward from each end of Smith's garden fence and from the front corner so that "I had three stakes there."; and "accepted his garden fence as being the line."
Surveyor Estes testified that there was an 8 foot wide strip between the Christian lot and the Redus lot which had not been deeded to anybody. Anderson testified that *885 he built a garage or car shed near the north line of the Christian lot.
Christian testified that his garage is built within a few inches of the line between himself and Joe Price Redus and that he had drilled a well, "like what I thought was the line between" his lot and Redus as a joint enterprise with Redus.
The testimony shows that the line referred to with reference to the car shed and well is marked with a fence and lies 90 feet north of the line surveyed by Franks and established by the trial court.
On page 72 of the transcript, the following appears:
Appellee's brief contains this statement:
The decree appealed from recites that the cause was submitted to the court "on the pleading and the evidence heard orally before the court on the 11th day of June, 1954, at which time the court took the case under advisement." The decree does not recite whether or not the court inspected the property. This court, therefore, cannot review this case as one where the premises were actually inspected by the trial court.
Argument reciting matters not disclosed by record cannot be considered. 2 Ala.Dig., Appeal and Error. and authorities there cited.
In summary, here are two surveys to establish a disputed line. One survey starts at a northern point and comes south. The other survey starts at a southern point and goes north. The boundary line established by this latter survey was accepted as the true line by the trial court, who heard and saw the witnesses testify.
We have set out some of the evidence supporting the trial court. There is contrary evidence in the record. We have carefully considered all the evidence in the record.
The rule is that when the chancellor sees and hears the witnesses testify, the findings of the trial court which determine questions of fact will not be disturbed on appeal unless palpably wrong. Authorities, supra.
The reason for that rule generally given is that the trial court can better judge the credibility of witnesses by seeing and hearing them testify. Without regard to credibility, an additional sound reason is demonstrated in this case.
This record is full of questions and answers which obviously refer to a point on a plat or map. The point referred to, however, in the great majority of those questions and answers is designated in the record by nothing except the words "here" and "there." Such testimony is meaningless without the pointing finger, or some additional information, to designate the particular spot on the map intended by the witness.
The trial court could see the spot on the exhibit to which the witness pointed. This court cannot.
*886 We do not find that the decree appealed from is unsupported by the evidence, or is contrary to the overwhelming preponderance of the evidence, or so palpably wrong as to require this court to reverse. Therefore, the decree appealed from is affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | February 21, 1957 |
3a82a267-e575-4a19-8ed0-4ed7d94b7d16 | Certain Underwriters of Lloyd's, London, and Certain London Marketing Insurance Companies v. Southern Natural Gas Company | N/A | 1071770, 1080816 | Alabama | Alabama Supreme Court | REL: 12/30/2009
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
____________________
1071770
____________________
Certain Underwriters of Lloyd's, London, and Certain London
Marketing Insurance Companies
v.
Southern Natural Gas Company
____________________
1080816
____________________
Certain Underwriters of Lloyd's, London, and Certain London
Marketing Insurance Companies
v.
Southern Natural Gas Company
Appeals from Jefferson Circuit Court
(CV-01-6388)
PER CURIAM.
Certain Underwriters at Lloyd's, London, and Certain
London Marketing Insurance Companies (collectively "the
1071770, 1080816
As noted in Lloyd's I, "'PCB' is an acronym for
1
polychlorinated biphenyl." 939 So. 2d at 32 n.1.
2
Insurers") appeal from an order of the Jefferson Circuit Court
in favor of the plaintiff, Southern Natural Gas Company
("Sonat"), certified under Rule 54(b), Ala. R. Civ. P., as a
final judgment. We dismiss the appeals.
Facts and Procedural History
This is the second time the underlying action has come
before this Court. See Certain Underwriters at Lloyd's,
London v. Southern Natural Gas Co., 939 So. 2d 21 (Ala. 2006)
("Lloyd's I"). As this Court noted in Lloyd's I:
"Sonat operates approximately 14,000 miles of
pipeline in the southeastern United States for the
purpose of transporting natural gas to markets in a
seven-state area. As Sonat explains in the
complaint it filed to institute the underlying
litigation, its 'integrated pipeline operations'
include, among other operational features, numerous
'compressor stations,' including 11 located in
Alabama, and numerous 'mercury-metering stations,'
including 131 located in Alabama. The Insurers
provide a balanced summary of the circumstances
giving rise to the action in their principal brief
to this Court:
"'From 1957 to 1972, Sonat used a PCB-based
synthetic
lubricant
at
many
of
its
compressor
stations.[ ]
Environmental
1
testing performed by Sonat in 1989 revealed
that 13 of its 38 compressor stations had
PCB contamination. Sonat also allegedly
sustained environmental damage to its
1071770, 1080816
3
property at 14,700 other sites, including
25 additional compressor stations; 650
mercury metering stations; 14,000 liquid
removal points; five manufactured gas
plants; and 20 offshore platforms. Sonat
voluntarily undertook to remediate the
contamination at its sites.
"'In 1991 Sonat put [the Insurers] on
notice that it had discovered contamination
at 13 of its compressor stations and that
it
had
taken
action
to
contain
and
remediate the contamination. In November
1995, counsel for [the Insurers] sent Sonat
a reservation of rights letter with respect
to the claim made by Sonat. In 1996 Sonat
advised [the Insurers] that the cleanup had
been completed and that [the Insurers]
should close their files on the claim.'
"(The Insurers' brief, pp. 6-7.)
"In the action it subsequently filed against the
Insurers, Sonat asserted that the Environmental
Protection Agency, 'other governmental agencies and
departments
and/or
private
parties,'
including
Alabama
residents,
'have
brought
or
asserted
lawsuits, claims, and demands against Sonat alleging
property damage, personal injury, bodily injury, and
other damage[] and causes of action, including,
without limitation, nuisance, trespass, negligence
and strict liability, allegedly as a result of
Sonat's operations and ownership' of the pipeline
system.
Sonat
asserted
that
it
had
'paid
substantial amounts under legal obligation for the
remediation of damage in, at, and around the
vicinity of compressor stations, and for mercury
damage arising from mercury meters.' Sonat went on
to explain that the contamination experienced at the
compressor
stations
involved
principally
the
presence of PCBs and the contamination at the
mercury-metering stations involved principally 'the
1071770, 1080816
4
presence of mercury in the ground water, surface
water, air and general environment in, at, around,
and
in
the
vicinity
of
the
mercury-metering
stations.'
"Sonat stated in its complaint that the Insurers
had issued various policies of liability insurance,
covering successive policy periods commencing on
November 30, 1949, and concluding on December 1,
1987, which entitled Sonat to coverage 'for all
sums, including costs of investigation and defense
and legal liabilities, arising out of environmental
and tort actions ....' In paragraph 32 of the
complaint (captioned 'Environmental and Tort Action
Concerning Reform, Alabama[,] Compressor Station'),
Sonat alleged:
"'Claims, demands and suits have been
asserted against Sonat concerning property
damage and other damages arising out of
Sonat's operation of the Reform, Alabama[,]
compressor station. The claimants in the
environmental actions, allege, inter alia,
damage and other injury based on purported
damage
including
the
presence
of
polychlorinated
biphenyls
and
other
substances of concern in the environment
in, at, around, and in the vicinity of the
Reform,
Alabama[,]
compressor
station.
Claimants seek damages for past and future
response costs for alleged property damage
which
is
continuous
and
progressive,
beginning in or before 1949 and extending
until at least 1986. The monies spent and
to be spent in response to demands of a
governmental agency, or a private party are
"damages" under the Liability Insurance
Policies. Alabama Plating Co. v. United
2
States Fidelity and Guar. Co., 690 So. 2d
331 (Ala. 1996). As such, the Liability
Insurance Policies respond to and are
required to pay for all damage because of
1071770, 1080816
5
property damage, bodily injury or personal
injury (or a combination thereof) which
Sonat is or becomes legally obligated to
pay as respects the Reform, Alabama[,]
compressor station. Sonat has paid, and is
likely to continue to become legally
obligated to pay, damages arising from the
Reform, Alabama[,] compressor station.'
"By means of the next four paragraphs of its
complaint, introduced by identical captions except
for the name of the location of the compressor
station, and making identical averments, Sonat made
precisely
parallel
allegations
concerning
the
compressor stations located at Elmore, Gallion,
McConnells, and Tarrant, Alabama.
"Thereafter, Sonat
undertook
in
its
complaint
to
delineate five separately captioned claims for
relief. The claims respectively asserted that
although the Insurers were obligated to pay in full
Sonat's legal liabilities arising out of or in
connection
with
the
previously
described
'environmental and tort actions,' the Insurers had
'failed, or threatened to fail, to fulfill, or
acknowledge completely their insuring obligations to
pay in full Sonat's legal liabilities'; that there
was an actual and justiciable controversy as to the
Insurers' obligations in that regard (first claim
for relief); that the Insurers had breached their
insuring obligations to Sonat and were obligated to
pay Sonat 'all direct, indirect, consequential,
incidental, special, compensatory and other damages
resulting from' the breaches of contract (second
claim for relief); that the conduct of the Insurers
effected a waiver of their right 'to enforce any
contractual obligation, limitation, exclusion, or
other provisions running in [their] favor' and Sonat
was entitled to a judicial declaration to that
effect (third claim for relief); that the Insurers
had breached their contracts of insurance by
'disclosing confidences of Sonat and confidential
1071770, 1080816
6
settlement communications of Sonat in violation of
their contractual duties to act with good faith and
with reasonable care and prudence with regard to
their
insured,'
thereby waiving the Insurers'
'ability to enforce any contractual obligation,
limitation, exclusion, or other provision running in
[their] favor,' entitling Sonat to a judicial
declaration to that effect (fourth claim for
relief); and that the conduct of the Insurers
represented an anticipatory breach of contract
entitling Sonat to recover damages (fifth claim for
relief). In its concluding 'prayer for relief,'
Sonat demanded judgment by way of a judicial
declaration that the Insurers were 'obligated to pay
or reimburse in full Sonat's cost and expenses for
investigation and defense of the environmental and
tort actions and to pay or reimburse in full Sonat's
legal
liabilities
in
connection
with
said
environmental and tort actions' and to pay an award
for 'compensatory damages in an amount or amounts to
be determined by the trier of fact at trial, and
attorneys' fees and costs.'
"Eventually,
the
trial
court
entered
two
case-management
orders
pertinent
to
the
jurisdictional issue before this Court. The first
order provided:
"'Considering the number of sites at issue
in this litigation and the complexity of
the issues involved, it is necessary that
the trial of this matter be conducted in
phases, as follows:
"'Trial Phase I: Trial Phase I
shall involve the parties' claims
and defenses relative to the
availability
of
insurance
coverage for a subset of those
sites
listed
in
Exhibit
"A"
("Phase I Sites"), as agreed to
by the parties or ordered by the
1071770, 1080816
7
Court in the future.'
"Exhibit
A
listed
dozens
of
'compressor
stations/PCBs' in Alabama, Georgia, Louisiana, and
Mississippi, several hundred 'meter and compressor
stations/mercury'
located
in
Florida,
South
Carolina, Alabama, Georgia, Louisiana, Texas, and
Tennessee, and several dozen 'offshore facilities.'
The second case-management order explained that
'[t]he initial trial [phase] in this action shall
focus on the claims and defenses related to the
Tarrant, Alabama, and Reform, Alabama, locations,'
those
being
two
of
the
Alabama
'compressor
stations/PCBs' identified on Exhibit A to the first
case-management order.
"At the conclusion of the trial relating to
those two sites, the jury responded to a set of 14
special interrogatories, identifying 9 separate
policies as having been in existence and finding 1)
that an 'occurrence' had occurred under both
definitions of that term in the two applicable
insurance policies; 2) that notice to the Insurers
of any occurrence was not late with respect to
either the Tarrant or the Reform compressor station;
3) that Sonat had not waived its claim; 4) that 'a
single occurrence caused the property damage[] at
Tarrant compressor station and Reform compressor
station'; 5) that at both locations there was damage
to property owned by third parties other than Sonat;
6) that the property damage at both stations began
in 1957 and ended in 1988; 7) that the amounts paid
by Sonat with respect to both compressor stations
were paid because Sonat 'was legally obligated to
pay them as damages'; 8) that soil contamination at
the two sites was not 'expected or intended' by
Sonat; 9) that the Insurers had breached the
contracts, doing so on November 13, 1995; and 10)
specifying the total amounts Sonat was entitled to
recover 'as a result of PCB contamination' at each
site. Lastly, the jury declared that three specific
policies were 'excess of $50,000 in underlying
1071770, 1080816
8
insurance.'
"The PCB contamination
at
the
various
compressor
stations resulted from Sonat's use throughout its
system
of
the
synthetic
lubricant
'Pydraul,'
composed partly of PCBs. In moving the trial court
for the entry of a judgment in response to the
jury's answers to the special interrogatories, Sonat
asserted that its 'damages were, in fact, caused by
the systematic use of Pydraul, causing damage[] at
the compressor stations, which constitutes a single
occurrence.' The Insurers opposed the entry of a
final judgment, arguing that the only authority for
such a judgment would be Rule 54(b), Ala. R. Civ.
P., but contending that the court could not certify
its order under that rule because none of Sonat's
claims had been completely resolved. The first
sentence of Rule 54(b) provides:
"'When more than one claim for relief is
presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party
claim,
or
when
multiple
parties
are
involved, the court may direct the entry of
a final judgment as to one or more but
fewer than all of the claims or parties
only upon an express determination that
there is no just reason for delay and upon
an express direction for the entry of
judgment.'
"(Emphasis supplied.)
"Rule 42(b), Ala. R. Civ. P., provides:
"'The court, in furtherance of convenience
or to avoid prejudice, or when separate
trials will be conducive to expedition and
economy, may order a separate trial of any
claim,
cross-claim,
counterclaim,
or
third-party claim, or of any separate issue
or of any number of claims, cross-claims,
1071770, 1080816
9
counterclaims,
third-party
claims,
or
issues, always preserving inviolate the
right of trial by jury as declared by
Article 1, Section 11 of the Alabama
Constitution of 1901.'
"(Emphasis supplied.)
"The Insurers argued to the trial court that
instead of certifying its order under Rule 54(b),
the court should certify appropriate issues for an
interlocutory appeal pursuant to Rule 5, Ala. R.
App. P. The Insurers committed that they could
stipulate with Sonat the issues the court could
certify for an interlocutory appeal taken pursuant
to Rule 5. On June 17, 2005, the trial court
entered its 'judgment' in favor of Sonat against the
Insurers for monetary damages and stating, with
respect to the issue of Rule 54(b) certification,
the following:
"'Defendants contend that a partial
final judgment is not appropriate. ...
"'....
"'In this case the parties agreed to
try the issues on the sites at Tarrant and
Reform. All the issues on these sites were
tried. Therefore, it appears that a final
judgment on these claims is appropriate.
"'....
"'The judgment is certified as final
pursuant to Rule 54(b), there being no
cause for delay and entry of judgment
should be final.'
"_______________
" The 'Liability Insurance Policies' referred to
2
in the complaint are those 'Known Primary, Umbrella
1071770, 1080816
Rule 21, Ala. R. Civ. P., states, in part: "Any claim
2
against a party may be severed and proceeded with separately."
10
and Excess General Liability Insurance Policies
Issued to [Sonat,] by Certain Underwriters at
Lloyd's' listed in Appendix 1 to Sonat's complaint.
..."
939 So. 2d at 23-27.
Although the Insurers appealed that order of the trial
court, they also
"moved this Court for an expedited determination of
appellate jurisdiction, contending that the order
[did] not constitute a final judgment that can
support an appeal. In particular, the Insurers
assert[ed] that the order did not completely dispose
of
any
single
'claim
for
relief'
and
that,
consequently,
the
trial
court's
attempted
certification of the 'judgment' as final pursuant to
Rule 54(b), Ala. R. Civ. P., was unavailing and
should be vacated by this Court and the appeal
dismissed."
939 So. 2d at 23.
In Lloyd's I, we first noted that the Phase I trials
ordered by the trial court were, under Rule 42(b), Ala. R.
Civ. P., separate trials of the issues relating to the Reform
and Tarrant compressor stations and were not separate trials
of independent claims for relief under Rule 21, Ala. R. Civ.
P. 939 So. 2d at 27. Next, we quoted from several
2
authorities discussing the requirements for an order to be
1071770, 1080816
11
properly certified as final under Rule 54(b), Ala. R. Civ. P.
Ultimately, we concluded that the Rule 54(b) certification was
ineffective. We stated:
"As pleaded and presented by Sonat, and as
consistently
argued
by
it
throughout
this
litigation, there exists a single claim, expressly
predicated on an allegedly 'single occurrence,'
followed by a single denial of coverage by the
Insurers,
thereby
entitling
Sonat
to
obtain
declaratory relief and to recover damages for breach
of contract. With respect to the PCB contamination
at
its
'integrated
operations
at
compressor
stations,' Sonat has expressly asserted that there
was one continuous exposure over the course of the
policy periods to the same PCBs emanating from the
same synthetic lubricant. Sonat has emphasized
throughout this litigation that it undertook a
single project to investigate and remediate the
damage it discovered throughout its integrated
system of compressor stations. In short, Sonat has
asserted
the
unitary
nature
of
its
pipeline
operation, including the unitary nature of the type
and location of contamination at all of the
compressor stations and has expressly asserted in
the trial court that its remedial activities at its
compressor stations were likewise unitary.
"Sonat's action seeks to recover globally for a
single
occurrence.
At
the
very
least,
and
independent of the interrelationships among the
course of events and resulting damage at various
other locations along its pipeline system, Sonat's
claims for relief seek to '"vindicate one legal
right and allege[] several elements of damage"' with
respect to claims for declaratory relief and damages
relating to the PCB contamination at the Reform,
Elmore, Gallion, McConnells, and Tarrant, Alabama,
compressor stations. Precision American Corp.[v.
Leasing Serv. Corp.], 505 So. 2d [380] at 381 [(Ala.
1071770, 1080816
The Phase II trial addressed the compressor stations at
3
DeArmanville,
Ellerslie,
Elmore,
Enterprise,
Gallion,
12
1987)] (quoting 10 C. Wright, A. Miller & M. Kane,
Federal Practice and Procedure: Civil 2d, § 2657, at
69-71 (1983)).
"....
"Although disposing of the parties' claims and
defenses relative to the 'availability of insurance
coverage' for the Reform and Tarrant sites, the
order entered by the trial court following the Phase
I trial necessarily 'leaves open the question of
additional damages' with respect to the other three
compressor stations. Accordingly, we need not
decide whether there is simply one claim for relief
asserted
in
Sonat's
complaint,
or
whether
recognition for some separate claims could be
justified, as for example, with respect to mercury
contamination
at
mercury-metering
stations
as
opposed to PCB contamination at compressor stations.
All that is necessary to resolve the jurisdictional
issue at this stage is that we are clear to the fact
that,
at
a
minimum,
the
identically
phrased
assertions relating to the events, and resulting
damage, at the five compressor stations represents
a single claim for relief and that the trial court
has not completely disposed of that claim for
relief."
939 So. 2d at 30.
After this Court dismissed the appeal in Lloyd's I, the
parties proceeded to the Phase II trial, which addressed 11
additional compressor-station sites. The Phase II jury found
in favor of Sonat with respect to 6 of the 11 sites and
awarded damages to Sonat. Sonat then moved the trial court
3
1071770, 1080816
Louisville,
McConnells,
Ocmulgee,
Onward,
Rankin,
and
Thomaston. The jury found in favor of Sonat as to the sites
at Ellerslie, Elmore, Gallion, Louisville, Ocmulgee, and
Onward.
This order is stamped as "filed in open court on April
4
8, 2008." However, the order was not entered in the State
Judicial Information System until April 24, 2008. See Rule
58(c), Ala. R. Civ. P. ("An order or a judgment shall be
deemed 'entered' within the meaning of these Rules and the
Rules of Appellate Procedure as of the actual date of the
input of the order or judgment into the State Judicial
Information System.").
See supra note 1.
5
13
for entry of a judgment on the jury's verdict and a
certification of the judgment as final under Rule 54(b), Ala.
R. Civ. P. The Insurers opposed the motion.
In an order entered on April 24, 2008, the trial court
granted Sonat's motion. In relevant part, the trial court's
4
order states:
"(A) Breach of Contract
"Both the Phase I and the Phase II jury
determined that [the Insurers] had breached their
contract with [Sonat].
"(B) Policy Interpretation Issues
"Pursuant to this Court's prior rulings, and the
Phases I and II jury verdicts, the Court finds that:
"1. The PCB
Remediation Program constituted
[5]
an 'occurrence' as defined in the policies;
1071770, 1080816
14
"2. The attachment points of the policies are
$50,000;
"3. [Sonat] was legally obligated to pay for
the remediation program, and [the costs for
that program] therefore constitute damages
under the policies;
"4. The PCB remediation program consisted of a
single occurrence under the policies at issue.
"(C) Factual Determinations Made by the Finders
of Fact
"1. The policies at issue exist;
"2. [Sonat] did not waive its claim against
[the Insurers] for damages associated with the
PCB remediation program;
"3. [Sonat] provided timely notice to [the
Insurers] of its claim;
"4. [The Insurers] breached their contracts
with [Sonat] on November 13, 1995; and
"5. The covered damages commenced in 1957 and
continued until 1988.
"....
"(E) Prevailing Party
"[Sonat] was determined to be the prevailing
party for Phase I on the issues presented to the
jury. [Sonat] similarly prevailed on the issues
presented to the Phase II jury.
"Therefore, it is ordered as follows:
"1. The [Insurers'] policies exist;
1071770, 1080816
15
"2. The attachment points of policies CU1887,
K11477, and CU10353 are $50,0000;
"3. [Sonat] did not waive its claim;
"4.
The
PCB
Remediation
Program
was
an
'occurrence' under the policies;
"5.
The
PCB
remediation
expenses
are
recoverable as damages under the policies;
"6. [Sonat] provided timely notice;
"7. The PCB Remediation Program was a single
occurrence;
"8. [The Insurers] breached their contracts
with [Sonat] on November 13, 1995;
"9. Judgment is entered in favor of [Sonat]
and against [the Insurers] in the amount of
$2,377,962.45,
which
constitutes
the
full
amount for the Phase I and the Phase II sites;
and
"10. [Sonat] is the prevailing party, as it
prevailed on its cause of action for breach of
contract against [the Insurers].
"11. In combination, the verdicts of the Phase
I and the Phase II juries constitute a full and
complete adjudication of one of [Sonat's]
claims for relief, i.e., [Sonat's] claim for
declaratory relief and breach of contract
relating to the entire PCB remediation project
at
all
of
[Sonat's]
compressor
stations.
Therefore, the judgment is certified as final
pursuant to Rule 54(b), there being no cause
for delay, as the PCB Remediation Program
constitutes a single claim for relief, which
has been completely disposed of, and entry of
judgment should be final."
1071770, 1080816
16
The Insurers filed a timely postjudgment motion under
Rule 50, Ala. R. Civ. P., or, in the alternative, under Rule
59, Ala. R. Civ. P. The trial court denied that motion on
August 14, 2008, and the Insurers timely appealed on September
23, 2008 (appeal no. 1071770).
In their appeal to this Court, the Insurers moved on
October
10,
2008,
for
an
expedited
jurisdictional
determination regarding the propriety of the trial court's
certification of the April 24, 2008, order as a final judgment
under Rule 54(b), Ala. R. Civ. P. Both the Insurers and Sonat
submitted briefs and supporting materials regarding the
Insurers' motion.
On February 20, 2009, this Court entered the following
order, which was directed to the trial court:
"In consideration of the [Insurers'] motion for
expedited jurisdictional determination, it appears
that the trial court's order [entered on April 24],
2008, is not properly certifiable as a final
judgment
without
an
apportionment,
among
the
underwriters, of the damages awarded.
"IT IS, THEREFORE, ORDERED that this cause is
remanded for your consideration of apportioning
damages among the defendant underwriters.
"If you elect to enter a final judgment
including
an
apportionment
of
damages,
a
supplemental record reflecting such action should be
1071770, 1080816
17
prepared
and
forwarded
to
this
Court
within
twenty-one (21) days from the date of this order.
The judgment will be considered to be final as of
the date the new order is entered."
On March 12, 2009, the trial court entered an order
apportioning the total award among 28 subscribers to the
policies at issue. On March 25, 2009, the Insurers filed a
notice
of
appeal
as
to
the
trial
court's
order
of
apportionment of the damages award. This appeal was docketed
as case no. 1080816. By order of this Court, case no. 1080816
was consolidated with case no. 1071770 on April 7, 2009.
Meanwhile, the parties were preparing in the trial court
for the Phase III trial of issues related to Sonat's
remediation
efforts
at
its
mercury-metering
stations.
Although on December 17, 2008, the trial court had stayed the
Phase III trial pending the outcome of appeal no. 1071770, the
trial court, in orders entered on June 10 and June 12, 2009,
denied the Insurers' motions to stay discovery as to the
issues involved in the Phase III trial.
On June 24, 2009, the Insurers filed a motion in these
consolidated appeals, asking this Court to stay discovery in
1071770, 1080816
The Insurers argued that discovery should be stayed
6
"because this Court's decision [in the appeals from the Phase
II trial] may greatly alter the landscape in which Phase III
will be tried ... [and] also inevitably affect the discovery
that must be accomplished in preparation for the Phase III
trial." The Insurers argued that allowing discovery to
proceed created a substantial risk that nearly all the
discovery would need to be revisited after this Court decides
the issues raised in the appeals from the Phase II trials.
Sonat filed an opposition to the Insurers' motion. Sonat
argued that the Phase I and Phase II trials resolved the
entirety of Sonat's polychlorinated-biphenyl-remediation-
project "occurrence" under the subject insurance policies.
Sonat asserted that "nothing this Court decides on the current
appeal [of the Phase II trial] would eliminate [Sonat's] claim
for mercury remediation damages." Sonat argued that the
issues in the Phase III trial would require independent,
fact-specific inquiries. Additionally, Sonat asserted that
although it had objected to a stay of the Phase III trial,
Sonat and the Insurers had compromised and had "agreed to a
scheduling order that would not stay discovery, but would stay
the actual trial, should the appellate decision not be issued
by November 2, 2009." Sonat asserted that the Insurers were
"trying, for a third time, to obstruct resolution of [Sonat's]
claims by requesting a stay of discovery--discovery it had
agreed should go forward six months ago. ... [Sonat] is
entitled to resolution of all its coverage claims under the
[insurance] policies without further obstruction by [the
Insurers."
18
the trial court as to the Phase III trial. In an order dated
6
July 27, 2009, this Court denied that motion.
Discussion
As noted above, this Court in its initial consideration
of the Insurers' motion for an expedited jurisdictional
1071770, 1080816
19
determination remanded the case for the trial court to
apportion damages among the various subscribers to the
policies at issue in the Phase II trial; on remand the trial
court
entered an order apportioning
the
damages.
Nonetheless,
in addition to raising several issues in their briefs to this
Court as to the merits, the Insurers reiterate their
contention that the "judgment" rendered after the Phase II
trial should not have been certified as a final judgment under
Rule 54(b), Ala. R. Civ. P. We agree with the Insurers and
therefore dismiss the appeals.
Rule 54(b), Ala. R. Civ. P., states, in relevant part:
"When more than one claim for relief is presented in
an action, whether as a claim, counterclaim,
cross-claim, or third-party claim, or when multiple
parties are involved, the court may direct the entry
of a final judgment as to one or more but fewer than
all of the claims or parties only upon an express
determination that there is no just reason for delay
and upon an express direction for the entry of
judgment."
In reviewing a judgment entered under Rule 54(b), this
Court reviews de novo "[w]hether the action involves separate
claims and whether there is a final decision as to at least
one of the claims." Scrushy v. Tucker, 955 So. 2d 988, 996
1071770, 1080816
In reviewing the trial court's conclusion as to
7
"[w]hether there was 'no just reason delay,'" we must
determine whether the trial court exceeded its discretion.
Scrushy, 955 So. 2d at 996.
20
(Ala. 2006). In Scrushy, this Court included the following
7
discussion regarding the determination of whether a judgment
under Rule 54(b) involves a separate and distinct claim for
relief that has been fully adjudicated:
"In Precision American Corp. v. Leasing Service
Corp., 505 So. 2d 380, 381 (Ala. 1987), this Court
recognized the difficulty of the question before us.
"'The question before this Court is
whether the partial summary judgment LSC
received completely disposed of a claim so
as to make that judgment final. Rule 54(b)
does not authorize the entry of final
judgment on part of a single claim. Tolson
v. United States, 732 F.2d 998, 999 (D.C.
Cir. 1984). Neither federal nor state
courts have been able to settle on a single
test to determine when claims are separate
or exactly what constitutes a claim. See,
Tolson, 732 F.2d at 1001; Cates v. Bush,
293 Ala. 535, 307 So. 2d 6 (1975).
However, authorities have stated that "when
plaintiff is suing to vindicate one legal
right and alleges several elements of
damage, only one claim is presented and
subdivision (b) [of rule 54] does not
apply." 10 C. Wright, A. Miller, and M.
Kane, Federal Practice and Procedure:
Civil 2d, § 2657, at 69-71 (1983); Landry
v. G.B.A., 762 F.2d 462, 464 (5th Cir.
1985).'
"Federal authorities have also recognized that the
1071770, 1080816
21
'separate claim' question is not easily resolved.
For example, the Fifth Circuit stated in Samaad [v.
City of Dallas, 940 F.2d 925, 930 (5th Cir. 1991)]:
"'Even if we are able to differentiate
nicely between the legal and discretionary
aspects of rule 54(b) judgments, a great
deal of uncertainty nonetheless remains,
for we must consider the unsettled question
of what exactly is a 'claim for relief.'
The most that can be said confidently about
this question is that various courts focus
upon different things but are reluctant to
articulate hard-and-fast tests.
"'Some courts concentrate on the facts
underlying the putatively separate claims.
For instance, in Jack Walters & Sons [v.
Morton Bldg.], 737 F.2d [698] at 702 [(7th
Cir. 1984)], the court sought to define
"claim for relief" in light of what it
deemed to be rule 54(b)'s purpose: "to
spare the court of appeals from having to
keep relearning the facts of a case on
successive appeals." Accordingly, it held
that "if the facts underlying different
claims are different, the claims are
separate for Rule 54(b) purposes." Id.
"'Similarly, in Purdy Mobile Homes [v.
Champion Home Builders Co.], 594 F.2d
[1313] at 1316 [(9th Cir. 1979)], the court
rejected an argument that there was only
one claim because some facts were common to
all the theories of recovery. The fact
that one claim required proof of facts
different from those required to prove
another claim rendered it "separate." Id.
See also Gas-A-Car[, Inc. v. American
Petrofina, Inc.], 484 F.2d [1102] at 1105
[(10th Cir. 1973)]; 6 [James W.] Moore et
al., [Moore's Federal Practice], ¶ 54.33[2]
1071770, 1080816
22
at 54-194 [(2d ed. 1991)].
"'Other courts have rejected this
fact-bound test and have focused upon the
possibility of separate recoveries under
arguably separate claims. They have
developed what one commentator has labeled
a "legal rights test," under which common
underlying facts do not preclude the
existence of similar claims. 6 Moore et
al., supra, ¶ 54.33[2] at 54-196 n. 31
(discussing Tolson [v. United States, 732
F.2d 998 (D.C. Cir. 1984)]).
"'Nonetheless,
certain
points
of
agreement emerge from the cases. For
instance, "[i]t is clear that a claimant
who presents a number of alternative legal
theories, but whose recovery is limited to
only one of them, has only a single claim
of relief for purposes of Rule 54(b)."
Page [v. Preisser], 585 F.2d [336] at 339
[(8th Cir. 1978)] (citing Edney v. Fidelity
& Guar. Life Ins. Co., 348 F.2d 136, 138
(8th
Cir.
1965)).
Although
courts
generally agree on these points, they do
not fully reveal the contours of the phrase
"claim for relief." And we are reluctant,
at least in this case, to rush in where
other courts fear to tread. Like them,
rather than attempting to formulate a
generally applicable definition, we take
note of the foregoing "rules of thumb" and
decide the case at hand.'
"940 F.2d at 930-32 (footnotes omitted). The
Seventh
Circuit
employed similar reasoning in
Stearns [v. Consolidated Management, Inc., 747 F.2d
1125 (7th Cir. 1984)]:
"'Unfortunately, there is no clear test to
determine when claims are separate for
1071770, 1080816
23
purposes
of
the
rule.
Local
P-171
[Amalgamated Meat Cutters v. Thompson Farms
Co.], 642 F.2d [1065] at 1070 [(7th Cir.
1981)]. Nonetheless, we have recognized
certain rules of thumb to identify those
types
of
claims
that
can
never
be
considered separate, and have examined the
remainder on a case-by-case basis. The
first rule is that "claims cannot be
separate
unless
separate
recovery
is
possible
on
each....
Hence,
mere
variations
of
legal
theory
do
not
constitute separate claims." 642 F.2d at
1071. The second is that "claims so
closely related that they would fall afoul
of the rule against splitting claims if
brought separately" may not be considered
as separate. Id.'
"747 F.2d at 1108-09.
"The United States Court of Appeals for the
Second Circuit enunciated the following test in
Rieser v. Baltimore & Ohio R.R., 224 F.2d 198, 199
(2d Cir. 1955), that the commentators in Federal
Practice & Procedure find workable: 'The ultimate
determination of multiplicity of claims must rest in
every case on whether the underlying factual bases
for recovery state a number of different claims
which could have been separately enforced.' The
commentators then state:
"'A single claimant presents multiple
claims
for
relief
under
the
Second
Circuit's formulation when the possible
recoveries are more than one in number and
not mutually exclusive or, stated another
way, when the facts give rise to more than
one legal right or cause of action. ...
However, when a claimant presents a number
of legal theories, but will be permitted to
recover only on one of them, the bases for
1071770, 1080816
24
recovery are mutually exclusive, or simply
presented in the alternative, and plaintiff
has only a single claim for relief for
purposes of Rule 54(b). Similarly, when
plaintiff is suing to vindicate one legal
right and alleges several elements of
damage, only one claim is presented and
subdivision (b) does not apply.'
"10 Charles Alan Wright et al., Federal Practice &
Procedure § 2657 (3d ed. 1998) (footnotes omitted).
"In his complaint, Tucker alleges the following
claims against Scrushy: breach of fiduciary duty by
insider trading; breach of fiduciary duty by false
accounting and omissions in public disclosures;
interested transactions and waste of corporate
assets; misappropriation of corporate assets; unjust
enrichment; breach of contract; civil conspiracy;
willful violation of the law; intentional, reckless,
and innocent misrepresentation and suppression;
breach of duty of loyalty and good faith; and fraud,
misrepresentation, and the breach of the fiduciary
duties of loyalty, care, and disclosure. We
conclude that the various claims in the complaint
are not all variations on a single theme. Scrushy's
alleged breach of duty in accepting bonuses that
HealthSouth was not legally obligated to pay is a
sufficiently separate breach that is not alleged
elsewhere in the complaint. Therefore, the unjust-
enrichment claim is a separate claim that will
support a Rule 54(b) certification.
"No substantial issue appears to be presented
with reference to the extent to which the financial
statements were incorrect. Scrushy does not argue
that any of the revised yearly income gain or loss
totals are incorrect. As we have previously stated,
for purposes of the partial summary judgment
appealed here, the trial court assumed 'that
Defendant Scrushy had no actual knowledge of, played
no part in and had no active participation in any of
1071770, 1080816
25
the criminal activities that resulted in the
falsification and fabrication of the originally
filed financial documents that are at issue.' The
facts presented in support of the unjust-enrichment
claim appear at this juncture in the proceedings to
be straightforward .... The facts underlying the
unjust-enrichment claim are sufficiently discrete
that the claim can be reviewed separately and apart
from the other claims in the complaint. The narrow
issues surrounding the bonuses paid to Scrushy are
not likely to be presented to us again in the event
the remainder of this case is appealed to this
Court. See 10 Charles Alan Wright et al., Federal
Practice & Procedure § 2659: 'It is uneconomical
for an appellate court to review facts on an appeal
following a Rule 54(b) certification that it is
likely to be required to consider again when another
appeal is brought after the district court renders
its decision on the remaining claims or as to the
remaining parties.'"
Scrushy, 955 So. 2d at 996-99 (emphasis added).
As noted above, in Lloyd's I it was not necessary to
"decide whether there is simply one claim for relief asserted
in Sonat's complaint, or whether recognition for some separate
claims could be justified, as for example, with respect to
mercury contamination at mercury-metering stations as opposed
to PCB [polychlorinated-biphenyl] contamination at compressor
stations," 939 So. 2d at 30, because in Lloyd's I it was clear
that, even if there were separate claims for relief, the trial
court had not yet disposed of Sonat's claim for relief as it
pertained to all the compressor stations alleged to have
1071770, 1080816
26
suffered
polychlorinated-biphenyl
("PCB") contamination.
Lloyd's I, 939 So. 2d at 30. However, Sonat contends that the
Phase II trial addressed all the issues surrounding the
alleged PCB contamination and remediation at the remaining
compressor stations not addressed in the Phase I trial, and,
Sonat asserts, the Insurers will face no more liability for
damages related to the "PCB remediation project." Sonat
argues, therefore, that all issues related to the "PCB
remediation project" present a separate "claim for relief"
that is appropriate for Rule 54(b) consideration and distinct
from issues relating to Sonat's remediation of environmental
damages at mercury-metering stations.
More specifically, Sonat contends that its so-called "PCB
remediation project" constitutes a single "occurrence" under
the terms of the various policies at issue and that all
damages related to that
"project" therefore
present
a separate
"claim" of breach of contract and a separate "claim for
relief" for purposes of certification under Rule 54(b). Sonat
argues that "[t]he only additional liability [the Insurers]
face[] in this action is based upon a wholly separate single
occurrence[,] the remediation of mercury contamination along
1071770, 1080816
27
[Sonat's] pipeline, which is a separate breach of contract,
with separate damages." (Sonat's brief, p. 53.)
Certainly there is a practical distinction between
Sonat's efforts to clean up the PCB damage at its sites and
Sonat's efforts to clean up the mercury damage at other sites;
proving causation and damages at the various sites would turn
on the specific facts at each site and might, for example,
require testimony from different experts. However, we need
not decide in these appeals whether, under the specific facts
here, the so-called "PCB-remediation project" and the
"mercury-remediation
project"
are
separate
"occurrences"
under
the policies, nor need we decide whether, if those projects
are separate "occurrences," they also are separate breach-of-
contract "claims." Assuming the PCB- and mercury-remediation
projects could be said to be separate occurrences and/or
claims,
the
Rule
54(b)
certification
nevertheless
was
improper
under the circumstances of this case.
In the present case, it is not clear that Sonat has
alleged or proved
that
the
Insurers
committed separate actions
that in turn separately breached its policies of insurance
with Sonat as to the so-called PCB-remediation project and the
1071770, 1080816
Indeed, in response to special interrogatories submitted
8
in the Phase I and Phase II trials, the juries in those trials
identified a common date--November 13, 1995--as the date that
the Insurers allegedly breached the policies at issue.
According to evidence Sonat submitted, the Insurers on
November 13, 1995, sent a "reservation-of-rights" letter to
Sonat.
T he Insurers state in their principal brief to this
9
Court:
"Sonat's complaint did not assert a separate claim
for breach of contract regarding the compressor
station sites, nor did it attempt to distinguish the
damages relating to the 13 compressor stations from
the damages at the other categories of sites."
(The Insurers' brief, p. 67.) Similarly, in their reply
brief, the Insurers state:
"Sonat fails to explain how, under Rule 54(b),
the judgment fully adjudicated even one of Sonat's
claims. Sonat ignores the fact that the only claim
asserted in its pleadings is that [the Insurers]
breached their obligations to indemnify Sonat for
the costs of its remediation at 14,731 sites.
Because Sonat's complaint did not assert a separate
claim for the Phase I and Phase II compressor
station sites, Sonat was forced to be creative in
its argument that a claim has somehow been resolved
here.
28
mercury-remediation project. That is, it appears that Sonat
8
is seeking to recover multiple damages to their numerous (14,
731) sites based on an act or acts by the Insurers that Sonat
alleges constitute a single denial of coverage for all Sonat's
claims for environmental-remediation costs. See Lloyd's I,
9
1071770, 1080816
"Sonat now argues that the judgment 'fully and
fairly resolved all issues, and provided complete
relief, with respect to the PCB Remediation Project
occurrence.' What, respectfully, is a 'PCB
Remediation Project occurrence'? It is not a claim
in the complaint. The fact that Sonat may have
investigated and remediated the damage at its
compressor station sites as part of a single project
... has nothing to do with an 'occurrence' or a
claim under Rule 54(b).
"The most that can be taken from Sonat's
confusing Rule 54(b) argument is that Sonat now
believes that the trial court's determination that
the damage at the compressor stations amounted to a
single occurrence somehow converts such finding into
a claim for relief."
(The Insurers' reply brief, pp. 31-32.)
29
939 So. 2d at 30 ("As pleaded and presented by Sonat, and as
consistently argued by it throughout this litigation, there
exists a single claim, expressly predicated on an allegedly
'single occurrence,' followed by a single denial of coverage
by the Insurers, thereby entitling Sonat to obtain declaratory
relief and to recover damages for breach of contract."
(emphasis added)).
It appears very likely that, in the event there is an
appeal from a later phase in the underlying action, this Court
will be faced with again reviewing facts that are presently
before us--e.g., the Insurers' action or actions that
1071770, 1080816
30
allegedly breached the insurance policies as to "the PCB-
remediation project"--to determine if those same facts
involve, as to Sonat's mercury-remediation efforts, a breach
of the same policies of insurance at issue here. Additional
factual determinations likely to come before us again in a
future appeal include issues surrounding Sonat's notice of its
claim under the policies and whether Sonat waived its claims
against the Insurers for damages associated with its
environmental-remediation efforts. Thus, these appeals stand
in contrast to the factual scenario in Scrushy, 955 So. 2d at
999, in which it appeared that "[t]he narrow issues
surrounding the bonuses paid to Scrushy are not likely to be
presented to us again in the event the remainder of this case
is appealed to this Court." Under the unique circumstances
here, we think that consideration of an appeal from the
underlying action is not appropriate at this time. See
Scrushy, 955 So. 2d at 999 ("'It is uneconomical for an
appellate court to review facts on an appeal following a Rule
54(b) certification that it is likely to be required to
consider again when another appeal is brought after the
district court renders its decision on the remaining claims or
1071770, 1080816
In dismissing the appeals on a procedural basis, we are
10
cognizant of the substantial effort put forth by the parties
and of the significant costs involved in prosecuting and
defending these appeals. In the event a proper appeal is
taken from a future final judgment in the underlying action,
one or more parties to such an appeal may move this Court to
incorporate the record from these appeals. See, e.g., FabArc
Steel Supply, Inc. v. Composite Constr. Sys., Inc., 914 So. 2d
344, 349 (Ala. 2005) (noting that this Court had, on motion of
a party, incorporated the record from a prior appeal).
31
as to the remaining parties.'" (quoting 10 Charles Alan Wright
et al., Federal Practice & Procedure § 2659)). Accordingly,
we hold that the trial court erred in certifying the judgment
entered after the Phase II trial as final under Rule 54(b),
Ala. R. Civ. P., and the appeals are therefore due to be
dismissed.
10
Conclusion
The appeals are dismissed.
1071770--APPEAL DISMISSED.
1080816--APPEAL DISMISSED.
Cobb, C.J., and Lyons, Woodall, Stuart, Smith, Bolin,
Parker, Murdock, and Shaw, JJ., concur. | December 30, 2009 |
e4c57d4f-4064-408f-97e9-ceac4b97e2e1 | Liberty National Life Ins. Co. v. Stringfellow | 92 So. 2d 927 | N/A | Alabama | Alabama Supreme Court | 92 So. 2d 927 (1957)
LIBERTY NATIONAL LIFE INSURANCE COMPANY
v.
Buford STRINGFELLOW.
6 Div. 99.
Supreme Court of Alabama.
January 10, 1957.
Rehearing Denied March 7, 1957.
*928 Lipscomb, Brobston, Jones & Brobston, Bessemer, for petitioner.
Lange, Simpson, Robinson & Somerville, Birmingham, and Huey, Stone & Patton, Bessemer, opposed.
LAWSON, Justice.
This is a petition for writ of certiorari to the Court of Appeals.
The opinion of the Court of Appeals is set out in the petition. It is followed by these statements: "Your petitioner avers that the Court of Appeals erred in its decision of October 16, 1956, and that the same should be reversed, and the Court of Appeals erred in denying petitioner's application for rehearing.
"All of said grounds hereinabove assigned will be more completely and fully discussed in the brief filed with this petition."
But no errors are specified or assigned anywhere in the petition for the writ of certiorari, although the brief of petitioner challenges several of the holdings of the Court of Appeals.
In Davenport-Harris Funeral Home, Inc. v. Chandler, 264 Ala. 623, 88 So. 2d 878, 879, Mr. Justice Simpson writing for the court, in holding the petition there filed insufficient because it did not point out any error in the opinion of the Court of Appeals, said:
In view of the holding of this court in Davenport-Harris Funeral Home, Inc., v. Chandler, supra, we are constrained to deny the writ without giving consideration to any of the questions treated in the opinion of the Court of Appeals.
Writ denied.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | January 10, 1957 |
d91d0943-3d16-42b6-8e24-c6757fa3af61 | Todd v. Devaney | 92 So. 2d 24 | N/A | Alabama | Alabama Supreme Court | 92 So. 2d 24 (1957)
S. W. H. TODD
v.
Claude DEVANEY et al.
8 Div. 886.
Supreme Court of Alabama.
January 17, 1957.
Harry Strange, Russellville, for appellant.
Guin & Guin and Key & Williams, Russellville, for appellees.
MERRILL, Justice.
Appellees filed a bill seeking a declaratory judgment as to their rights in fifty acres of land in Franklin County. The bill showed that Devaney and Wilson owned the tract in 1933 when they conveyed the surface rights to R. P. Millican, reserving the mining rights. In 1943, Millican conveyed his rights to appellant. In November, 1954, the executors and heirs of Devaney and Wilson, who are parties complainant, leased the mining rights in forty acres of this tract to Tennessee *25 Valley Sand and Gravel Company, also a complainant. The two deeds and the lease are made exhibits to the bill. The Sand and Gravel Company undertook to enter and remove sand and gravel from the tract but appellant denied to them the right of entry. Thereupon, the lessors and the lessee joined as complainants in the bill seeking a declaratory judgment and other incidental relief.
Appellant's demurrer was overruled and he appealed. That appeal was dismissed by this Court, Todd v. Devaney, 264 Ala. 615, 88 So. 2d 696. The case was then tried on the merits and the lower court found in favor of complainants.
The controversy was over the construction of the deed from Devaney and Wilson to Millican. The words of conveyance read "* * * do grant, bargain, sell and convey to the said R. P. Millican the following described right, to wit:
"The surface right, except as hereinafter reserved and limited, in and to the following described lands * * *"
The covenant of warranty reads: "and we do covenant with the said R. P. Millican, his heirs and assigns, that we own the property right hereinabove conveyed * * *." The reservation was as follows:
Appellant insisted that the reservation is void and he was entitled to deny entry to the Sand and Gravel Company. The trial court ruled against this contention and appellant brings this appeal.
The assignments of error are of importance because appellant argues points not covered by the three assignments. Where no assignment of error has been made challenging a part or feature of a decree, the argument in brief on such points can well be disregarded by this court. Halbrooks v. Halbrooks, 252 Ala. 667, 42 So. 2d 352, and cases cited.
The first assignment of error reads:
With the demurrer to his crossbill sustained, the appellant is in no position to complain of the court's failure to grant him, the respondent in the cause, affirmative relief. That can only be sought by a crossbill. But aside from the technicalities, the decree does state what right appellant received. Paragraph 7 of the decree holds that Millican received only the surface right, and paragraph 8 holds that appellant acquired only such rights and interests as were conveyed to Millican, and acquired the same subject to the reservations in the deed to Millican. It is not necessary to discuss the conveyance from Millican to appellant, because appellant received only such right as Millican could convey to him.
The second assignment of error is:
There was no necessity for the decree to define specifically the intention of the parties because, in holding that the deed to Millican conveyed only the surface rights and that the retention of the mineral rights gave the grantors or their assignees the right to enter and mine the property, the court necessarily found that the intention *26 of the parties, as gathered from the four corners of the instrument, was to accomplish that end, The intention of the parties to a written contract is derived from the provisions of the contract, and when the meaning of the conveyance in question was defined, the intention of the parties was necessarily defined.
The third assignment of error reads:
"The Court erred in rendering its decree over-ruling Respondent's (Appellant's) demurrers to the bill of complaint."
Appellant argues two propositions under this assignment; first, that there is no equity in the bill, and second, that there is a misjoinder of parties complainant.
The bill does contain equity. It did present a justiciable controversy between the parties which could be settled by a decree declaring the construction of the conveyance to Millican. Tit. 7, § 157, Code 1940, reads:
The lessee, Tennessee Valley Sand & Gravel Company, is "interested" because it wants to mine the property. The other complainants are "interested" because they claim to own the mineral interest and will receive royalties under the lease as the property is mined each month. We think this disposes of both propositions under the third assignment of error, but as to the contention that there is a misjoinder of parties complainant, there is no ground of demurrer raising that point. Argument as to misjoinder of parties will not be considered where the demurrer failed to challenge the bill of complaint on that ground. Irvin v. Irvin, 207 Ala. 493, 93 So. 517; Campbell v. Jackson, 257 Ala. 618, 60 So. 2d 252; Tit. 7, § 236, Code 1940.
Since none of the assignments of error are well taken, the decree must be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | January 17, 1957 |
d598d876-ac77-4a3f-89e3-47289201d618 | Ollie Underwood et al. v. Alabama State Board of Education et al. | N/A | 1071464 | Alabama | Alabama Supreme Court | REL:12/04/2009
Notice: T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e
Reporter of Decisions,
Alabama
A p p e l l a t e
C o u r t s ,
300 D e x t e r Avenue, Montgomery, Alabama 36104-3741
((334)
2 2 9 - 0 6 4 9 ) , o f
any t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may be made
b e f o r e t h e
o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1071464
O l l i e Underwood e t a l .
v.
Alabama S t a t e Board o f E d u c a t i o n e t a l .
Appeal from Montgomery C i r c u i t Court
(CV-07-811)
SHAW,
J u s t i c e .
1
The
p l a i n t i f f s b e l o w , O l l i e U n d e r w o o d , Peggy M o b l e y , a n d
G a y l e G e a r , a p p e a l
f r o m a j u d g m e n t i n
f a v o r o f
t h e d e f e n d a n t s
b e l o w , t h e
A l a b a m a
S t a t e B o a r d o f E d u c a t i o n
( " t h e B o a r d " ) ;
1 T h i s c a s e was o r i g i n a l l y a s s i g n e d t o a n o t h e r J u s t i c e on
t h i s C o u r t .
I t
was r e a s s i g n e d t o J u s t i c e Shaw.
1071464
G o v e r n o r Bob
R i l e y , i n h i s
o f f i c i a l
c a p a c i t y as p r e s i d e n t
and
member
o f
t h e
B o a r d ;
and
Randy
M c K i n n e y ,
B e t t y
P e t e r s ,
S t e p h a n i e W.
B e l l ,
E t h e l H.
H a l l ,
E l l a
B e l l , D a v i d F.
B y e r s ,
J r . ,
S a n d r a
Ray,
and
M a r y
J a n e
C a y l o r ,
i n
t h e i r
o f f i c i a l
c a p a c i t i e s as members o f t h e B o a r d , b a s e d on a l l e g a t i o n s t h a t
t h e
n o t i c e
t h e
d e f e n d a n t s
p o s t e d
b e f o r e
a
May
10,
2 0 0 7 ,
m e e t i n g
o f
t h e
B o a r d v i o l a t e d A l a b a m a ' s Open M e e t i n g s
A c t .
2
We
h o l d
t h a t
t h e
i s s u e p r e s e n t e d
by
t h i s
a p p e a l
has
become
moot,
and
we
d i s m i s s
t h e
a p p e a l .
3
F a c t s
and
P r o c e d u r a l
H i s t o r y
2 S p e c i f i c a l l y ,
t h e
p l a i n t i f f s
a l l e g e
t h a t
t h e
n o t i c e
v i o l a t e d
§ 3 6 - 2 5 A - 3 ( c ) , A l a . Code 1975,
w h i c h
p r o v i d e s :
" P o s t e d
n o t i c e
p u r s u a n t
t o
t h i s
s e c t i o n
s h a l l
i n c l u d e
t h e
t i m e ,
d a t e ,
and
p l a c e
o f m e e t i n g . I f
a
p r e l i m i n a r y a g e n d a i s c r e a t e d ,
i t s h a l l be p o s t e d
as
s o o n as
p r a c t i c a b l e i n t h e same l o c a t i o n o r manner
as
t h e
n o t i c e
g i v e n
p u r s u a n t
t o
t h i s
s e c t i o n .
A
g o v e r n m e n t a l
b o d y
may
d i s c u s s
a t
a
m e e t i n g
a d d i t i o n a l m a t t e r s
n o t
i n c l u d e d
i n t h e
p r e l i m i n a r y
a g e n d a .
I f
a p r e l i m i n a r y
a g e n d a
i s n o t
a v a i l a b l e ,
t h e
p o s t e d
n o t i c e
s h a l l
i n c l u d e
a
g e n e r a l
d e s c r i p t i o n
o f
t h e
n a t u r e
and
p u r p o s e
o f
t h e
m e e t i n g . "
3 B e c a u s e
o f
o u r
d i s p o s i t i o n o f
t h i s
a p p e a l ,
we
do
n o t
a d d r e s s t h e
a d d i t i o n a l i s s u e s
o r a r g u m e n t s
i d e n t i f i e d by
t h e
p a r t i e s
i n t h e i r
b r i e f s
t o
t h i s
C o u r t .
2
1071464
The
p l a i n t i f f s '
c l a i m s
were
t r i e d
p u r s u a n t
t o
t h e
f o l l o w i n g
s t i p u l a t e d
f a c t s , as a g r e e d t o by t h e
p a r t i e s :
" 1 0 . N o t i c e s u b m i t t e d by d e f e n d a n t B o a r d t o t h e
S e c r e t a r y o f S t a t e ' s o f f i c e a d v i s e d t h e p u b l i c
t h a t
on
M a r c h
2,
2007,
d e f e n d a n t
[ B ] o a r d w o u l d
h o l d
a
s p e c i a l
m e e t i n g
f o r
t h e
f o l l o w i n g
p u r p o s e :
' t o
a c c e p t t h e r e s i g n a t i o n o f t h e i n t e r i m c h a n c e l l o r
and
c o n s i d e r
t h e
a d m i n i s t r a t i o n
o f
t h e
A l a b a m a
D e p a r t m e n t
o f
P o s t s e c o n d a r y
E d u c a t i o n
and
t h e
A l a b a m a C o l l e g e S y s t e m .
The m e e t i n g i s open t o t h e
p u b l i c . '
...
" 1 1 .
A p r e s s
r e l e a s e
s u m m a r i z i n g
t h e
B o a r d ' s
o f f i c i a l
a c t i o n s
i n
a
document
e n t i t l e d
' B o a r d
B r i e f s '
d a t e d
M a r c h
2,
2007,
s t a t e d
' t h e
B o a r d
e x p e c t s t o s e a r c h f o r a p e r m a n e n t C h a n c e l l o r
s o o n . '
"12. As n o t e d by a t t a c h e d E x h i b i t
8, on
A p r i l
3 0 ,
2007, d e f e n d a n t B o a r d
s u b m i t t e d n o t i c e
t o
t h e
S e c r e t a r y
o f
S t a t e
o f
t h e
s c h e d u l i n g
o f
s p e c i a l
c a l l e d w o r k s e s s i o n f o r May
9, 2007 and p r o v i d e d a
g e n e r a l
d e s c r i p t i o n
o f
t h e m e e t i n g
a s :
' S p e c i a l
c a l l e d
w o r k
s e s s i o n
t o
d i s c u s s
t h e
s e a r c h f o r a
p e r m a n e n t
C h a n c e l l o r . '
"13. W i t h t h e e x c e p t i o n o f d e f e n d a n t E l l a
B e l l ,
a l l
i n d i v i d u a l
d e f e n d a n t s ,
i n
t h e i r
o f f i c i a l
c a p a c i t y , were p r e s e n t a t t h e a f t e r n o o n w o r k s e s s i o n
h e l d on May
9, 2007.
f i
"36. No m e e t i n g s u b j e c t t o t h e Open M e e t i n g s A c t
o c c u r r e d ,
i n w h i c h
t h e
n o m i n a t i o n
o f
C h a n c e l l o r
B y r n e
was
d e l i b e r a t e d
o r v o t e d u p o n ,
p r i o r
t o t h e
May
9, 2007, s p e c i a l l y
c a l l e d w o r k
s e s s i o n .
"37.
P l a i n t i f f s
a r e
n o t
s e e k i n g
s t a t u t o r y
p e n a l t i e s
f o r
a l l e g e d
v i o l a t i o n s
o f
t h e
Open
3
1071464
M e e t i n g s
A c t
b u t
a r e
s e e k i n g
a t t o r n e y
f e e s
and
c o s t s .
"38.
P u b l i c n o t i c e w i t h r e s p e c t
t o t h e May
9 t h
s p e c i a l l y
c a l l e d w o r k s e s s i o n was
s u b m i t t e d
t o
t h e
S e c r e t a r y o f S t a t e on A p r i l
30, 2007 a t 4:56:40
PM,
and
p u b l i s h e d more t h a n n i n e d a y s i n a d v a n c e o f
t h e
m e e t i n g .
...
"39.
P u b l i c n o t i c e w i t h r e s p e c t
t o t h e May
9 t h
s p e c i a l l y
c a l l e d w o r k s e s s i o n a c c u r a t e l y s t a t e d
t h e
m e e t i n g d a t e as ' 5 / 9 / 2 0 0 7 ' and
t h e m e e t i n g t i m e
as
'2:00
PM'
and
i d e n t i f i e d
t h e
m e e t i n g - t y p e
as
' s p e c i a l / c a l l e d . '
...
A d d i t i o n a l l y ,
t h e
m e e t i n g
l o c a t i o n was
a c c u r a t e l y l i s t e d , a c o n t a c t number
was
p r o v i d e d ,
and
t h e
A l a b a m a
S t a t e
B o a r d
o f
E d u c a t i o n / P o s t s e c o n d a r y
E d u c a t i o n
was
i d e n t i f i e d
as
t h e p a r t y who
p o s t e d
t h e n o t i c e .
...
"40.
P u b l i c n o t i c e w i t h r e s p e c t
t o t h e May
9 t h
s p e c i a l l y
c a l l e d w o r k
s e s s i o n
c o n t a i n e d
a
g e n e r a l
d e s c r i p t i o n o f t h e n a t u r e
and p u r p o s e o f t h e m e e t i n g
as
a ' [ s ] p e c i a l
c a l l e d w o r k s e s s i o n t o d i s c u s s
t h e
s e a r c h
f o r a p e r m a n e n t c h a n c e l l o r . '
...
"41.
P u b l i c n o t i c e w i t h r e s p e c t
t o t h e May
10,
2007, s p e c i a l m e e t i n g was
s u b m i t t e d
t o t h e
S e c r e t a r y
o f S t a t e on May
9 t h a t 3:27:54 p.m.,
and was
p o s t e d
t w e n t y - f o u r
h o u r s
i n a d v a n c e
o f
t h e
m e e t i n g
t i m e .
"42.
P u b l i c n o t i c e w i t h r e s p e c t
t o t h e May
10,
2007, s p e c i a l m e e t i n g a c c u r a t e l y s t a t e d t h e
m e e t i n g
d a t e as ' 5 / 1 0 / 2 0 0 7 , ' and
t h e m e e t i n g t i m e as
'3:30
PM.'
...
The m e e t i n g l o c a t i o n was
a c c u r a t e l y
l i s t e d ,
a c o n t a c t number was
p r o v i d e d ,
and t h e A l a b a m a
S t a t e
B o a r d
o f
E d u c a t i o n / P o s t s e c o n d a r y
E d u c a t i o n
was
i d e n t i f i e d
as t h e p a r t y who
p o s t e d
t h e n o t i c e .
...
"43.
P u b l i c n o t i c e w i t h r e s p e c t
t o t h e May
10,
2007,
s p e c i a l
m e e t i n g
c o n t a i n e d
a
g e n e r a l
4
1071464
d e s c r i p t i o n o f t h e n a t u r e and p u r p o s e o f t h e m e e t i n g
as f o l l o w s :
"'The
p u r p o s e o f t h i s
s p e c i a l m e e t i n g
w i l l
be t o a c c e p t t h e r e s i g n a t i o n o f t h e i n t e r i m
c h a n c e l l o r and c o n s i d e r t h e a d m i n i s t r a t i o n
o f t h e A l a b a m a D e p a r t m e n t o f
P o s t s e c o n d a r y
E d u c a t i o n
and
The
A l a b a m a C o l l e g e
S y s t e m .
"44.
The A g e n d a w i t h r e s p e c t t o t h e May
10, 2007
s p e c i a l
m e e t i n g
l i s t s
t h e
i t e m s
o f
b u s i n e s s
as
' A c c e p t a n c e
o f
R e s i g n a t i o n
o f
I n t e r i m
C h a n c e l l o r '
and t o ' C o n s i d e r A d m i n i s t r a t i o n o f t h e D e p a r t m e n t o f
P o s t s e c o n d a r y
E d u c a t i o n
and
t h e
A l a b a m a
C o l l e g e
S y s t e m . '
...
"45.
The
g e n e r a l
d e s c r i p t i o n c o n t a i n e d
i n
t h e
p u b l i c
n o t i c e
w i t h
r e s p e c t
t o
t h e
May
10,
2007,
s p e c i a l m e e t i n g c o n t a i n s t h e same d e s c r i p t i o n as
t h e
i t e m s
o f b u s i n e s s
c o n t a i n e d
i n t h e A g e n d a f o r t h a t
m e e t i n g .
... "
A t i t s May
10, 2007, m e e t i n g t h e B o a r d a p p o i n t e d
B r a d l e y
B y r n e as c h a n c e l l o r o f A l a b a m a ' s t w o - y e a r c o l l e g e s y s t e m .
The
p l a i n t i f f s
t h e n
f i l e d
t h e
u n d e r l y i n g
d e c l a r a t o r y - j u d g m e n t
a c t i o n
and
a l s o
s o u g h t
a
t e m p o r a r y
r e s t r a i n i n g
o r d e r ,
p r e v e n t i n g B y r n e f r o m a s s u m i n g t h e p o s i t i o n o f c h a n c e l l o r .
On
May
22,
2007,
t h e
t r i a l
c o u r t
e n t e r e d
an
o r d e r
d e n y i n g
t h e
p l a i n t i f f s '
r e q u e s t
f o r
a
t e m p o r a r y
r e s t r a i n i n g
o r d e r .
T h e r e a f t e r , f o l l o w i n g t h e s u b m i s s i o n
o f t h e above
s t i p u l a t e d
f a c t s
and
an
a c c o m p a n y i n g
b r i e f
by
e a c h
s i d e
t o
t h e
t r i a l
c o u r t , w h i c h h e a r d
t h e c a s e w i t h o u t
a j u r y , on J u n e 17,
2008,
5
1071464
t h e
t r i a l
c o u r t e n t e r e d an o r d e r i n w h i c h i t i d e n t i f i e d t h e
s o l e i s s u e b e f o r e i t
as " w h e t h e r t h e B o a r d ' s
p u b l i c l y
p o s t e d
n o t i c e w i t h r e s p e c t t o a s p e c i a l l y c a l l e d B o a r d M e e t i n g on May
10, 2007 c o m p l i e d w i t h t h e r e q u i r e m e n t s o f t h e Open M e e t i n g s
A c t . "
The t r i a l
c o u r t ' s o r d e r a n s w e r e d
t h a t q u e s t i o n i n t h e
a f f i r m a t i v e ,
c o n c l u d i n g t h a t " t h e B o a r d c o m p l i e d w i t h t h e
Open
M e e t i n g s A c t "
a n d d e n y i n g t h e p l a i n t i f f s '
r e q u e s t e d
r e l i e f .
The
p l a i n t i f f s
a p p e a l e d .
S t a n d a r d o f R e v i e w
"'The
t r i a l
c o u r t i n t h i s c a s e a p p l i e d t h e
l a w
t o
u n d i s p u t e d ,
s t i p u l a t e d
f a c t s .
Our
r e v i e w
t h e r e f o r e i s
de n o v o .
"'"When r e v i e w i n g a c a s e i n
w h i c h t h e t r i a l
c o u r t s a t
w i t h o u t a j u r y a n d h e a r d e v i d e n c e
i n t h e f o r m o f s t i p u l a t i o n s ,
b r i e f s , a n d
t h e
w r i t i n g s
o f t h e p a r t i e s ,
t h i s
C o u r t
s i t s i n j u d g m e n t o f t h e e v i d e n c e ; t h e r e
i s
no p r e s u m p t i o n o f c o r r e c t n e s s . O l d S o u t h e r n
L i f e I n s . Co. v . W i l l i a m s , 544 So. 2d
9 4 1 ,
942
( A l a .
1
98 9 ) ;
C r a i g
C o n s t r .
Co. v .
H e n d r i x , 568 So. 2d 752, 756 ( A l a . 1 9 9 0 ) .
When t h i s C o u r t must d e t e r m i n e i f t h e t r i a l
c o u r t m i s a p p l i e d t h e
l a w t o t h e u n d i s p u t e d
f a c t s , t h e s t a n d a r d o f r e v i e w i s
de n o v o ,
and no p r e s u m p t i o n o f c o r r e c t n e s s i s g i v e n
t h e
d e c i s i o n
o f t h e t r i a l
c o u r t .
S t a t e
Dep't o f Revenue v . G a r n e r , 812 So. 2d
380,
382
( A l a . C i v .
App. 2 0 0 1 ) ;
s e e a l s o Ex
p a r t e Graham, 702 So. 2d 1215 ( A l a . 1 9 9 7 ) .
I n
t h i s
c a s e t h e t r i a l
c o u r t b a s e d i t s
d e c i s i o n
upon t h e s t i p u l a t i o n s ,
b r i e f s ,
w r i t i n g s ,
a n d a r g u m e n t s o f t h e
p a r t i e s '
6
1071464
a t t o r n e y s .
No
t e s t i m o n y
was
p r e s e n t e d .
T h e r e f o r e ,
we must s i t i n j u d g m e n t o f t h e
e v i d e n c e ,
and
t h e
t r i a l
c o u r t
r u l i n g
c a r r i e s no p r e s u m p t i o n o f
c o r r e c t n e s s . " '
" A m e r i c a n R e s . I n s . Co. v . H & H S t e p h e n s
C o n s t r . ,
I n c . , 939
So. 2d 8
68 ,
872-73
( A l a . 2
0
0 6 ) ( q u o t i n g
Bean D r e d g i n g , L.L.C. v . A l a b a m a Dep't o f R e v e n u e ,
855 So. 2d 513, 516-17 ( A l a . 2 0 0 3 ) ) . "
N i x v . M c E l r a t h ,
952 So. 2d 1107, 1110
( A l a . 2 0 0 6 ) .
D i s c u s s i o n
The
p l a i n t i f f s
s o u g h t d e c l a r a t o r y and i n j u n c t i v e
r e l i e f
and
i n c l u d e d a p r a y e r
t h a t t h e t r i a l
c o u r t :
" 1 .
I s s u e a d e c l a r a t o r y j u d g m e n t
d e c l a r i n g :
"A. The
a c t i o n s
o f t h e d e f e n d a n t s i n
f a i l i n g
and
r e f u s i n g
t o
f o l l o w
[ t h e
B o a r d ' s ] own p o l i c i e s as w e l l as s t a t e l a w
r e q u i r e [ ]
e n t r y o f o r d e r
i n v a l i d a t i n g t h e
May 10, 2007 s e l e c t i o n f o r C h a n c e l l o r .
"B. The
a c t i o n s
o f t h e d e f e n d a n t s i n
f a i l i n g
and
r e f u s i n g
t o
f o l l o w
[ t h e
B o a r d ' s ] p o l i c i e s a r e i m p r o p e r .
"C. The
a c t i o n s
o f t h e d e f e n d a n t s i n
f a i l i n g
and
r e f u s i n g
t o
f o l l o w
[ t h e
B o a r d ' s ]
own
p o l i c i e s
a r e
a r b i t r a r y and
c a p r i c i o u s
a c t i o n s
w h i c h
c o n s t i t u t e
a
v i o l a t i o n
o f
b o a r d
p o l i c y
and
t h u s ,
a
v i o l a t i o n o f A l a b a m a l a w .
"2.
E n t e r m a n d a t o r y t e m p o r a r y , p r e l i m i n a r y
and
p e r m a n e n t
i n j u n c t i o n s
r e q u i r i n g
d e f e n d a n t s
t o
w i t h d r a w ,
i n v a l i d a t e
o r
r e s c i n d
i t s a c t i o n
and
r e o p e n
t h e
p r o c e s s
f o r a l l a p p l i c a n t s
[ f o r t h e
7
1071464
p o s i t i o n o f c h a n c e l l o r ] f o r a p e r i o d o f t i m e
g r e a t e r
t h a n 30
d a y s .
"3.
E n t e r
an
O r d e r
r e q u i r i n g
t h a t
a l l
c o s t s
i n c u r r e d
i n
t h i s
c a s e
be
t a x e d
a g a i n s t
t h e
d e f e n d a n t s .
"4. E n t e r an O r d e r e n j o i n i n g t h e d e f e n d a n t s f r o m
t a k i n g
any
f u r t h e r
a c t i o n
o f p l a c e m e n t
o f
B r a d l e y
B y r n e i n t h e
C h a n c e l l o r p o s i t i o n .
"5. T h a t a t t o r n e y ' s
f e e s
and
c o s t s be
a w a r d e d ;
and,
"6.
P l a i n t i f f s
f u r t h e r p r a y t h a t t h e y be a w a r d e d
any
o t h e r
e q u i t a b l e o r f u r t h e r r e l i e f
and
any
o t h e r
and
f u r t h e r o r d e r s
and
j u d g m e n t s be
e n t e r e d
as
t o
w h i c h
t h e y
may
be
e n t i t l e d
u n d e r
t h e
f a c t s
as
a l l e g e d a b o v e . "
The
p l a i n t i f f s
s t i p u l a t e d b e l o w
t h a t
" [ t h e y
a r e ]
n o t
s e e k i n g s t a t u t o r y p e n a l t i e s f o r a l l e g e d v i o l a t i o n s o f t h e Open
M e e t i n g s A c t
b u t
a r e
s e e k i n g
a t t o r n e y
f e e s
and
c o s t s
"
They s t a t e on a p p e a l t h a t t h e y " s e e k d e c l a r a t o r y
r e l i e f ,
n o t
r e m o v a l o f C h a n c e l l o r
B y r n e , "
4 and
t h a t
" t h e
u l t i m a t e remedy
...
w i l l
be
d e c i d e d
by
t h e
C i r c u i t
C o u r t
upon
remand."
( P l a i n t i f f ' s
r e p l y
b r i e f ,
a t
p.
5.)
However,
as
we
h a v e
h i s t o r i c a l l y done, we e x a m i n e t h e l a n g u a g e o f t h e c o m p l a i n t
t o
d e t e r m i n e
t h e
t r u e
n a t u r e
o f
t h e
p l a i n t i f f s '
c l a i m s .
See
R u t l e y v. C o u n t r y S k i l l e t P o u l t r y Co.,
549
So.
2d 82,
84
( A l a .
4As
n o t e d
i n f r a ,
B r a d l e y B y r n e r e s i g n e d
as c h a n c e l l o r
o f
A l a b a m a ' s t w o - y e a r c o l l e g e s y s t e m i n May
2009.
8
1071464
1989)
("A
c o u r t must l o o k t o t h e a l l e g a t i o n s
i n t h e b o d y o f
t h e
c o m p l a i n t
i n
o r d e r
t o
d e t e r m i n e
t h e
n a t u r e
o f
a
p l a i n t i f f ' s
c a u s e o f
a c t i o n . " ) .
"The
s u b s t a n c e
o f
t h e
p l a i n t i f f ' s
a l l e g a t i o n s
c o n t r o l ,
n o t t h e
e f f o r t
g i v e n by
t h e
p l a i n t i f f
t o
s t y l e
t h e c l a i m s t h r o u g h o u t
l i t i g a t i o n .
B a i l e y
v.
F a u l k n e r , 940 So. 2d 247, 253
( A l a . 2006)
( ' F a u l k n e r
p l a c e s g r e a t r e l i a n c e on t h e
f a c t
t h a t he has b e e n
c a r e f u l
t o
s t y l e
h i s
c l a i m s
t h r o u g h o u t
t h i s
l i t i g a t i o n
as
n e g l i g e n c e
and
w a n t o n n e s s
c l a i m s ,
r a t h e r
t h a n
as
an
a l i e n a t i o n - o f - a f f e c t i o n s
c l a i m .
However,
" [ t ] h i s
C o u r t
has
a l w a y s
l o o k e d
t o
s u b s t a n c e o v e r f o r m . "
S o u t h e r n
S a s h
S a l e s & S u p p l y
Co.
v.
W i l e y ,
631
So.
2d
968,
971
( A l a . 1
994 ) . '
( f o o t n o t e
o m i t t e d ) ) . "
E l i z a b e t h Homes, L.L.C. v. C a t o , 968 So. 2d 1, 8 ( A l a . 2 0 0 7 ) .
F u r t h e r , i n d e t e r m i n i n g t h e n a t u r e o f a p l a i n t i f f ' s
c l a i m ,
we
n o t e t h a t "a p l a i n t i f f i s i n c o n t r o l o f h i s o r h e r c o m p l a i n t ,
[and] we
[ t h e r e f o r e ] a c c e p t
[ t h e p l a i n t i f f ' s ]
a l l e g a t i o n s
on
t h e i r f a c e . "
N a t i o n a l A u c t i o n G r o u p , I n c . v. Hammett, 854
So.
2d 65, 70
( A l a . 2 0 0 3 ) .
H e r e ,
b a s e d upon t h e
p l a i n
l a n g u a g e
o f t h e
p l a i n t i f f s '
c o m p l a i n t and t h e f a c t t h a t t h e p l a i n t i f f s
c h a l l e n g e o n l y t h e
n o t i c e d e a l i n g w i t h t h e s p e c i f i c m e e t i n g i n w h i c h C h a n c e l l o r
B y r n e was
a p p o i n t e d , s e e k t o i n v a l i d a t e t h e o r d e r a p p o i n t i n g
h i m , and s e e k an i n j u n c t i o n t o p r e v e n t t h e B o a r d f r o m
p l a c i n g
C h a n c e l l o r
B y r n e
i n
o f f i c e ,
we
c o n c l u d e ,
as
d i d
t h e
9
1071464
d e f e n d a n t s , t h a t " [ p ] r e s u m a b l y ,
[ t h e p l a i n t i f f s ] s e e k t o h a v e
t h e C h a n c e l l o r ' s a p p o i n t m e n t
r e v o k e d . "
5
( D e f e n d a n t s '
b r i e f ,
a t p.
29.)
We
t a k e
j u d i c i a l n o t i c e o f t h e
f a c t t h a t B y r n e r e s i g n e d
f r o m
t h e
p o s i t i o n
o f
c h a n c e l l o r i n May
200 9.
C f . Cook
v.
S t a t e , 269 A l a . 646, 653-54, 115 So. 2d 101, 106
(1959)
("The
c o u r t
t a k e s
j u d i c i a l
k n o w l e d g e o f t h e
s e v e r a l
c o m m i s s i o n e d
o f f i c e r s
o f t h e
s t a t e ,
t h e t e r m
o f
t h e i r
o f f i c e ,
e x t e n t
o f
t h e i r
a u t h o r i t y ,
a n d t h e s i g n a t u r e o f c l e r k s o f t h e
c i r c u i t
c o u r t s . " ) ; A i k e n v. M c M i l l a n , 213 A l a . 494,
501,
106 So.
150,
157
(1925)
("The
c o u r t s
t a k e
j u d i c i a l
k n o w l e d g e
o f
s u c h
o f f i c i a l a c t i o n by t h e G o v e r n o r
i n t h e a p p o i n t m e n t
o f a p e r s o n
as
t r a n s l a t o r
and
o f
h i s
q u a l i f i c a t i o n
i n t h a t
o f f i c e
as
t r a n s l a t o r
. . . . " ) ;
C i t y
o f B i r m i n g h a m v. E d w a r d s ,
201
A l a .
5 S e c t i o n
3 6 - 2 5 A - 9 ( f ) ,
A l a .
Code
1975,
p r o v i d e s ,
i n
p e r t i n e n t
p a r t :
"The
c o u r t
may
i n v a l i d a t e
t h e
a c t i o n
o r
a c t i o n s
t a k e n
d u r i n g a m e e t i n g
h e l d
i n v i o l a t i o n
o f
t h i s
c h a p t e r , p r o v i d e d t h a t t h e c o m p l a i n t i s f i l e d
w i t h i n
21 d a y s o f t h e d a t e when t h e a c t i o n i s made p u b l i c ,
t h e
v i o l a t i o n
was
n o t
t h e
r e s u l t
o f
m i s t a k e ,
i n a d v e r t e n c e , o r e x c u s a b l e n e g l e c t , and
i n v a l i d a t i o n
o f
t h e
g o v e r n m e n t a l
a c t i o n
t a k e n w o u l d n o t
u n d u l y
p r e j u d i c e
t h i r d
p a r t i e s
who
h a v e
c h a n g e d
t h e i r
p o s i t i o n o r t a k e n a c t i o n i n g o o d f a i t h r e l i a n c e upon
t h e c h a l l e n g e d a c t i o n o f t h e g o v e r n m e n t a l b o d y
"
10
1071464
251,
256,
77
So.
841,
846
(1918)
( a c k n o w l e d g i n g
t h a t
t h e
c o u r t s t a k e j u d i c i a l n o t i c e o f t h e a p p o i n t m e n t o f c o m m i s s i o n e d
o f f i c e r s o f t h e s t a t e , i n c l u d i n g n o t a r y p u b l i c s ) ; and C a s e y v.
B r y c e ,
173
A l a .
129,
133-34,
55
So.
810,
811
(1911)
("The
i s s u a n c e o f a c o m m i s s i o n t o a p u b l i c o f f i c e r , by t h e G o v e r n o r
o f
t h e
s t a t e ,
b e i n g
a p u b l i c a c t o f p u b l i c r e c o r d w h i c h i s
p r e s c r i b e d by
l a w , must be
j u d i c i a l l y
n o t i c e d by
c o u r t s . " ) .
See
a l s o C u l l m a n B r o a d .
Co.
v.
B o s l e y ,
373
So.
2d
830 ,
832
( A l a .
1979)
( " C o u r t s may
t a k e
j u d i c i a l
n o t i c e o f m a t t e r s
o f
common k n o w l e d g e w i t h o u t s u g g e s t i o n o f c o u n s e l ... and
w i t h o u t
p r o o f
t h e r e o f . "
( c i t a t i o n
o m i t t e d ) ) .
I n
l i g h t
o f
t h e
f o r e g o i n g
j u d i c i a l l y
n o t i c e d f a c t ,
i . e . , C h a n c e l l o r
B y r n e ' s
r e s i g n a t i o n ,
we must
i n q u i r e ,
as
a t h r e s h o l d m a t t e r
and
ex
mero motu
i n
t h i s
i n s t a n c e , w h e t h e r
t h i s
c a s e
i n v o l v e s
a
j u s t i c i a b l e
c o n t r o v e r s y
o r
w h e t h e r
i t has
b e e n m o o t e d
by
B y r n e ' s i n t e r v e n i n g r e s i g n a t i o n .
" T h i s C o u r t
has
o f t e n s a i d
t h a t , as
a
g e n e r a l
r u l e ,
i t w i l l n o t d e c i d e q u e s t i o n s
a f t e r a d e c i s i o n
has become u s e l e s s o r moot. Ex p a r t e M c F r y , 219 A l a .
492,
122
So.
641
( 1 9 2 9 ) ; B y r d v.
S o r r e l l s ,
265
A l a .
589,
93
So.
2d
146
( 1 9 5 7 ) ;
C h i s o l m
v.
C r o o k ,
272
A l a .
192,
130
So.
2d
191
( 1 9 6 1 ) ;
J a c o b s
B a n k i n g
Company v.
C a m p b e l l ,
40 6 So.
2d
834
( A l a .
1 9 8 1 ) .
A l a b a m a c o u r t s do
n o t
g i v e o p i n i o n s i n w h i c h
t h e r e
i s no l o n g e r a j u s t i c i a b l e c o n t r o v e r s y ; y e t , A l a b a m a
has
r e c o g n i z e d
two
e x c e p t i o n s
t o
t h e
m o o t n e s s
11
1071464
d o c t r i n e :
q u e s t i o n s
o f g r e a t
p u b l i c
i n t e r e s t a n d
q u e s t i o n s
t h a t
a r e l i k e l y
o f
r e p e t i t i o n
o f t h e
s i t u a t i o n .
B y r d v . S o r r e l l s ,
s u p r a ,
S t a t e ex r e l .
E a g e r t o n
v . C o r w i n , 359 So. 2d 767
( A l a .
1 9 7 7 ) .
N e i t h e r o f t h e s e
e x c e p t i o n s
seems a p p l i c a b l e h e r e
A r r i n g t o n v . S t a t e ex r e l . P a r s o n s , 422 So. 2d 7 5 9 ,
760 ( A l a .
1 9 8 2 ) .
"'"A moot c a s e o r q u e s t i o n i s
a c a s e o r q u e s t i o n
i n o r on w h i c h t h e r e i s
no r e a l c o n t r o v e r s y ; a c a s e
w h i c h s e e k s t o d e t e r m i n e an a b s t r a c t q u e s t i o n
w h i c h
d o e s
n o t r e s t on
e x i s t i n g
f a c t s
o r
r i g h t s , o r
i n v o l v e
c o n f l i c t i n g
r i g h t s so f a r
as p l a i n t i f f i s
c o n c e r n e d . " ' Case v . A l a b a m a S t a t e B a r , 939 So. 2d
881,
884
( A l a . 2006)
( q u o t i n g
A m e r i c a n
Fed'n o f
S t a t e , C o u n t y & Mun. E m p l o y e e s v . D a w k i n s , 268 A l a .
13, 18, 104 So. 2d 827, 830-31
( 1 9 5 8 ) ) . 'The t e s t
f o r
m o o t n e s s
i s commonly
s t a t e d as w h e t h e r t h e
c o u r t ' s a c t i o n on t h e
m e r i t s w o u l d a f f e c t t h e r i g h t s
o f t h e p a r t i e s . '
C r a w f o r d v . S t a t e , 153 S.W.3d 497,
501
( T e x .
App. 2004)
( c i t i n g VE C o r p . v . E r n s t &
Y o u n g ,
8
60
S.W.2d 83, 84 ( T e x . 1 9 9 3 ) ) .
'A
c a s e
becomes moot i f
a t a n y s t a g e
t h e r e c e a s e s t o be an
a c t u a l
c o n t r o v e r s y
b e t w e e n
t h e
p a r t i e s . '
I d .
( e m p h a s i s
added)
( c i t i n g
N a t i o n a l
C o l l e g i a t e
A t h l e t i c
A s s ' n v . J o n e s ,
1 S.W.3d 83, 8
6 ( T e x .
1 9 9 9 ) ) .
" ' T h e r e must be a bona f i d e e x i s t i n g
c o n t r o v e r s y
o f a j u s t i c i a b l e c h a r a c t e r t o c o n f e r upon t h e c o u r t
j u r i s d i c t i o n t o g r a n t
d e c l a r a t o r y r e l i e f u n d e r t h e
d e c l a r a t o r y j u d g m e n t s t a t u t e s , a n d i f
t h e r e was no
j u s t i c i a b l e
c o n t r o v e r s y
e x i s t i n g when t h e s u i t was
commenced t h e t r i a l
c o u r t
h a d no
j u r i s d i c t i o n . '
S t a t e ex r e l . B a x l e y v . J o h n s o n , 293 A l a . 69,
73,
300
So. 2d 106, 110
( 1 9 7 4 ) .
' " ' U n l e s s
t h e
t r i a l
c o u r t h a s b e f o r e i t
a j u s t i c i a b l e
c o n t r o v e r s y , i t
l a c k s
s u b j e c t m a t t e r
j u r i s d i c t i o n a n d a n y j u d g m e n t
e n t e r e d
b y i t i s v o i d ab
i n i t i o . ' " '
S u s t a i n a b l e
12
1071464
F o r e s t s ,
L.L.C. v . A l a b a m a Power Co., 805 So. 2d
681,
683
( A l a . 2001) ( q u o t i n g
Hunt
T r a n s i t i o n &
I n a u g u r a l F u n d , I n c . v . G r e n i e r , 782 So. 2d 270, 272
( A l a .
2 0 0 0 ) , q u o t i n g i n t u r n Ex p a r t e S t a t e ex
r e l .
James, 711 So. 2d 952,
960 n. 2 ( A l a . 1 9 9 8 ) ) . 'A moot
c a s e l a c k s j u s t i c i a b i l i t y . '
C r a w f o r d ,
153 S.W.3d a t
5 01.
Thus,
' [ a ] n
a c t i o n t h a t
o r i g i n a l l y was b a s e d
upon a j u s t i c i a b l e
c o n t r o v e r s y c a n n o t be
m a i n t a i n e d
on a p p e a l
i f t h e q u e s t i o n s
r a i s e d i n i t have become
moot b y s u b s e q u e n t a c t s o r e v e n t s . ' C a s e , 939 So.
2d
a t
884
( c i t i n g
E m p l o y e e s
o f M o n t g o m e r y
C o u n t y
S h e r i f f ' s
Dep't v . M a r s h a l l , 893 So. 2d 326, 330
( A l a .
2 0 0 4 ) ) .
"'"The l a c k o f a j u s t i c i a b l e
c o n t r o v e r s y may be
r a i s e d e i t h e r b y a m o t i o n t o d i s m i s s , R u l e 12, [ A l a .
R. C i v .
P . ] ,
o r a m o t i o n f o r
summary
j u d g m e n t . " '
H o r n s b y v .
S e s s i o n s ,
703 So. 2d 932, 937
( A l a .
1 9 9 7 ) ( q u o t i n g
S m i t h
v .
A l a b a m a
D r y
Dock
&
S h i p b u i l d i n g Co.,
293 A l a . 644,
649,
309 So. 2d
424,
427
( 1 9 7 5 ) ) . I n d e e d ,
' [ i ] t i s
w e l l s e t t l e d t h a t l a c k
o f s u b j e c t - m a t t e r
j u r i s d i c t i o n c a n
be r a i s e d a t
a n y
t i m e b y t h e p a r t i e s o r b y t h e c o u r t ex mero motu.'
Ex
p a r t e V.S., 918 So. 2d 908 , 912
( A l a .
2 0 0 5 ) .
' " ' [ I ] f t h e r e i s
an a b s e n c e o f j u r i s d i c t i o n
o v e r ...
t h e s u b j e c t m a t t e r , a c o u r t h a s no power t o a c t , a n d
j u r i s d i c t i o n
o v e r
t h e s u b j e c t
m a t t e r
c a n n o t be
c r e a t e d
b y
w a i v e r
o r
c o n s e n t . ' " '
I d .
( q u o t i n g
F l a n n i g a n
v . J o r d a n ,
871 So. 2d 7
67 ,
7
68 ( A l a .
2 0 0 3 ) , q u o t i n g i n t u r n N o r t o n v . L i d d e l l , 280 A l a .
353,
356, 194 So. 2d 514 , 517
(1
9 6 7 ) ) . A
c o u r t
w i t h o u t
s u b j e c t - m a t t e r
j u r i s d i c t i o n
'"may t a k e no
a c t i o n
o t h e r
t h a n t o e x e r c i s e i t s power t o d i s m i s s
t h e
a c t i o n
Any o t h e r
a c t i o n ... i s n u l l a n d
v o i d . " ' S t a t e v . P r o p e r t y a t
2018 R a i n b o w D r i v e , 740
So.
2d 1 0 2 5 , 1029 ( A l a .
1
999)
( q u o t i n g
B e a c h v .
D i r e c t o r o f R e v e n u e , 934 S.W.2d 315, 318 (Mo.
C t .
App.
19 9
6 ) ) .
An o u t s t a n d i n g
r e q u e s t
f o r a t t o r n e y
f e e s
'does
n o t
r e s u s c i t a t e an
o t h e r w i s e
moot
c o n t r o v e r s y . '
Cammermeyer v . P e r r y , 97 F.3d
1 2 3 5 ,
1238
( 9 t h C i r . 1 9 9 6 ) . See a l s o L e w i s v . C o n t i n e n t a l
13
1071464
Bank C o r p . ,
494
U.S.
472,
480,
110
S.Ct.
1249,
108
L . E d . 2 d 400
( 1 9 9 0 ) . "
Chapman v. Gooden, 974
So.
2d
972,
983-84
( A l a . 2007)
( f i r s t
e m p h a s i s o r i g i n a l ;
o t h e r e m p h a s i s a d d e d ) .
A d e c l a r a t o r y - j u d g m e n t a c t i o n may
be
r e n d e r e d moot.
" D e c l a r a t o r y - j u d g m e n t
a c t i o n s
i n A l a b a m a
a r e
g o v e r n e d by
t h e
D e c l a r a t o r y
Judgment A c t ,
c o d i f i e d
a t
§§
6-6-220 t h r o u g h
-232,
A l a . Code
1
975
('the
A c t ' ) .
The
A c t does n o t
'"empower c o u r t s
t o
d e c i d e
moot
q u e s t i o n s ,
a b s t r a c t
p r o p o s i t i o n s ,
o r
t o
g i v e
a d v i s o r y o p i n i o n s , h o w e v e r c o n v e n i e n t i t m i g h t be
t o
h a v e t h e s e q u e s t i o n s
d e c i d e d
f o r t h e g o v e r n m e n t
o f
f u t u r e
c a s e s . " '
Stamps v.
J e f f e r s o n
C o u n t y
Bd.
o f
E d u c . , 642
So.
2d 941,
944
( A l a . 1994)
( q u o t i n g Town
o f W a r r i o r
v.
B l a y l o c k ,
275
A l a .
113,
114,
152
So.
2d
661,
662
( 1 9 6 3 ) )
( e m p h a s i s
a d d e d
i n
S t a m p s ) .
P u r s u a n t
t o
§ 6-6-226,
d e c l a r a t o r y
r e l i e f
may
be
a f f o r d e d
i n
c a s e s
' i n
w h i c h
a
j u d g m e n t
w i l l
t e r m i n a t e
t h e
c o n t r o v e r s y
o r
remove
t h e
u n c e r t a i n t y , ' b u t § 6-6-229 e m p h a s i z e s t h e
c o r o l l a r y
t h a t
' [ t ] h e c o u r t may
r e f u s e
t o e n t e r
a
d e c l a r a t o r y
j u d g m e n t where s u c h j u d g m e n t , i f e n t e r e d ,
w o u l d
n o t
t e r m i n a t e
t h e u n c e r t a i n t y o r c o n t r o v e r s y
g i v i n g
r i s e
t o t h e
p r o c e e d i n g . ' "
B r u n e r v. Geneva C o u n t y F o r e s t r y D e p ' t , 865
So.
2d 1167,
1175
( A l a .
2 0 0 3 ) .
See
a l s o Hunt T r a n s i t i o n & I n a u g u r a l
F u n d ,
I n c .
v.
G r e n i e r ,
782
So.
2d
270,
272
( A l a . 2000)
("For
a c o u r t
t o
g r a n t d e c l a r a t o r y
r e l i e f ,
i t must have b e f o r e
i t a b o n a
f i d e ,
p r e s e n t l y
e x i s t i n g
j u s t i c i a b l e
c o n t r o v e r s y
t h a t
a f f e c t s
t h e
l e g a l
r i g h t s
o r
o b l i g a t i o n s
o f
t h e
p a r t i e s . " ) ;
V a n L o o c k
v.
C u r r a n ,
48 9
So.
2d
525,
531
( A l a .
1986)
("Indeed,
moot
14
1071464
q u e s t i o n s a r e n o t p r o p e r l y t h e s u b j e c t o f d e c l a r a t o r y j u d g m e n t
a c t i o n s . "
( c i t i n g
C i t y o f M o b i l e
v.
S c o t t , 278
A l a . 388,
178
So.
2d 545
( 1 9 6 5 ) ) ) .
"'"The
d e c l a r a t o r y
j u d g m e n t
s t a t u t e s
do
n o t
empower
c o u r t s
t o
d e c i d e
moot
q u e s t i o n s
[ o r ]
a b s t r a c t p r o p o s i t i o n s o r t o g i v e a d v i s o r y
o p i n i o n s ,
h o w e v e r c o n v e n i e n t
i t m i g h t be t o h a v e t h e
q u e s t i o n s
d e c i d e d
f o r
t h e
g o v e r n m e n t
o f
f u t u r e
c a s e s . " '
W a l l a c e
v.
B u r l e s o n ,
361
So.
2d
554,
555
( A l a .
1 9 7 8 ) , q u o t i n g
S t a t e ex r e l . B a x l e y
v. J o h n s o n ,
293
A l a .
69,
300
So.
2d
106
( 1 9 7 4 ) .
See,
a l s o ,
G r a d d i c k
v.
M c P h i l l i p s ,
448
So.
2d
333,
336
( A l a . 1 9 8 4 ) .
I n
d e c i d i n g
w h e t h e r
a
c a s e
i s moot,
a
c o u r t
must
c o n s i d e r
' w h e t h e r d e c i s i o n o f a once
l i v i n g
d i s p u t e
c o n t i n u e s
t o be
j u s t i f i e d
by
a s u f f i c i e n t
p r o s p e c t
t h a t
t h e
d e c i s i o n
w i l l
have
an
i m p a c t
on
t h e
p a r t i e s . '
13A
C.
W r i g h t ,
A.
M i l l e r ,
& E.
C o o p e r ,
F e d e r a l
P r a c t i c e
and
P r o c e d u r e
§
3533,
a t
212
(1984 ).
'
[ I ] f a
c a s e
has
become moot,
o r
[ i f a]
j u d g m e n t w o u l d n o t
a c c o m p l i s h
an
end
r e c o g n i z e d
as
s u f f i c i e n t
i n
l a w ,
t h e r e
i s no
n e c e s s i t y
f o r
t h e
j u d g m e n t ,
t h e
c o u r t
w i l l
d e c l i n e
t o
c o n s i d e r
t h e
m e r i t s ,
and
[ t h e
c o u r t
w i l l ]
d i s m i s s
t h e
c a s e . '
C h i s o l m
v. C r o o k , 272
A l a . 192,
194,
130
So.
2d
191
(19 6 1 ) . "
H o r n s b y v. S e s s i o n s , 703
So. 2d 932 , 938
( A l a . 1
997)
( e m p h a s i s
a d d e d ) .
I n S t a t e ex r e l . E a g e r t o n v. C o r w i n , 359
So.
2d 767,
769
( A l a .
1 9 7 7 ) , t h e S t a t e a p p e a l e d f r o m a j u d g m e n t u p h o l d i n g
" t h e
r i g h t
o f
a member
o f
t h e
A l a b a m a
R e a l
E s t a t e
C o m m i s s i o n
r e s i d i n g
i n
t h e
same
C o n g r e s s i o n a l
D i s t r i c t
w i t h
a n o t h e r
member t o c o n t i n u e t o h o l d o f f i c e u n t i l h i s t e r m e x p i r e d
l a t e r
15
1071464
i n
t h e y e a r o f t h e j u d g m e n t
(1977 ) . "
359 So. 2d a t 7
67.
B e f o r e t h e c a s e was a r g u e d and s u b m i t t e d t o t h i s C o u r t on t h e
m e r i t s , t h e s u b j e c t member's t e r m e x p i r e d , and t h e G o v e r n o r
a p p o i n t e d a s u c c e s s o r so t h a t two members no l o n g e r r e s i d e d i n
t h e
same
c o n g r e s s i o n a l
d i s t r i c t .
359 So. 2d a t
7 6 8 - 6 9 .
T h e r e a f t e r , a m o t i o n t o d i s m i s s t h e a p p e a l as moot was
f i l e d .
I d .
I n g r a n t i n g t h a t m o t i o n ,
t h i s C o u r t
s t a t e d :
"As t h e c a s e s t a n d s b e f o r e us now, t h e r e i s no
j u s t i c i a b l e c o n t r o v e r s y b e t w e e n E a g e r t o n and C o r w i n
and
K i n g ,
i n v o l v i n g
§
3 1 1 ( 4 ) ,
T i t . 46.
The
c o n t r o v e r s y
c e a s e d t o e x i s t when K i n g ' s t e r m as a
member o f t h e C o m m i s s i o n
e x p i r e d [ ; ] t h e r e f o r e t h e r e
a r e
no
e x i s t i n g
f a c t s
w h i c h
f r u s t r a t e
t h e
l e g i s l a t i v e
i n t e n t
as e x p r e s s e d i n §
3 1 1 ( 4 ) .
No
l o n g e r
i s
more
t h a n
one
member
f r o m
any
C o n g r e s s i o n a l
D i s t r i c t
s e r v i n g a t t h e same t i m e on
t h e
C o m m i s s i o n .
T h i s r e n d e r s
t h i s
c a s e moot.
A
c a s e i s moot when t h e r e i s no r e a l c o n t r o v e r s y and
i t
s e e k s t o d e t e r m i n e an a b s t r a c t
q u e s t i o n w h i c h
d o e s n o t r e s t on e x i s t i n g
f a c t s o r r i g h t s .
P o s t a l
T e l e g r a p h C a b l e Co. v . C i t y o f M o n t g o m e r y, 193 A l a .
234,
69 So. 428
( 1 9 1 5 ) ;
A m e r i c a n
F e d e r a t i o n o f
S t a t e ,
C o u n t y and M u n i c i p a l E m p l o y e e s v .
D a w k i n s ,
268 A l a . 13, 104 So. 2d 827 ( 1 9 5 8 ) .
"We have h e l d t h a t where an e v e n t o c c u r s w h i c h
r e n d e r s a c a s e moot p r i o r t o t h i s c o u r t
c o n s i d e r i n g
t h e
a p p e a l i t w i l l be d i s m i s s e d b e c a u s e a
d e c i s i o n
i s n o t n e c e s s a r y . C h i s o l m v . C r o o k , 272 A l a .
192,
130
So. 2d 191
( 1 9 6 1 ) ;
W e a t h i n g t o n
v .
C i t y
o f
B i r m i n g h a m ,
293 A l a . 652, 309 So. 2d 430 ( 1 9 7 5 ) .
" I n
W e a t h i n g t o n ,
q u o t i n g
f r o m
D a w k i n s ,
t h i s
c o u r t
s a i d :
16
1071464
"'"...
The
f u n c t i o n
o r
d u t y
o f a
j u d i c i a l
t r i b u n a l
i s t o d e t e r m i n e
r e a l
c o n t r o v e r s i e s r e l a t i v e t o t h e l e g a l
r i g h t s
o f p e r s o n s o r p r o p e r t y , w h i c h a r e a c t u a l l y
i n v o l v e d i n t h e p a r t i c u l a r c a s e ...
" ... '
" T h i s c a s e does n o t p r e s e n t a s i t u a t i o n where
t h e r e
i s
l i k e l i h o o d o f r e p e t i t i o n o f t h e s i t u a t i o n g i v i n g
r i s e t o t h i s
l i t i g a t i o n : a p p o i n t m e n t o f two members
o f
t h e
C o m m i s s i o n
f r o m
t h e same
C o n g r e s s i o n a l
D i s t r i c t .
N e i t h e r
does
i t
a p p e a r
t h a t
t h e
r e q u i r e m e n t s
o f §
3 1 1 ( 4 )
w i l l
n o t be
s t r i c t l y
a d h e r e d t o i n t h e f u t u r e . The j u d g m e n t o f t h e
t r i a l
c o u r t i s q u i t e c l e a r on t h i s p o i n t . Thus we do n o t
h a v e t h e f a c t o r s m i l i t a t i n g
a g a i n s t m o o t n e s s
t h a t
were p r e s e n t i n Roe v . Wade, 410 U.S. 113, 93 S . C t .
705,
35
L . E d . 2 d
147
[ ( 1 9 7 3 ) ] ;
and
S u p e r
T i r e
E n g i n e e r i n g Co. v. M c C o r k l e , 416 U.S. 115, ... 94
S.Ct.
1694, 40 L . E d . 2 d 1 [ ( 1 9 7 4 ) ] .
"A d e c i s i o n b y t h i s
c o u r t i n t h i s
c a s e
w o u l d
a c c o m p l i s h
n o t h i n g . "
359 So. 2d a t 769.
S i m i l a r l y ,
i n C i t y o f M o b i l e
v. S c o t t ,
s u p r a ,
when a
c h a l l e n g e d e m p l o y m e n t c o n t r a c t t e r m i n a t e d b e f o r e a d e c i s i o n on
t h e m e r i t s c o u l d be i s s u e d , we h e l d as f o l l o w s :
"Where t h e c h i e f o f p o l i c e s o u g h t r e s t o r a t i o n
t o
t h e
o f f i c e
f r o m
w h i c h
he
a l l e g e d l y
h a d
b e e n
w r o n g f u l l y r e m o v e d , t h i s c o u r t d i s m i s s e d h i s a p p e a l
where he h a d b e e n l e g a l l y r e m o v e d f r o m o f f i c e
a f t e r
t h e
a p p e a l was t a k e n .
S t a t e ex r e l . C a s e v . L y o n s ,
143
A l a . 649, 39 So. 214
[ ( 1 9 0 5 ) ] . The c o u r t
t h e r e
s a i d :
"'... "The c a u s e , i n s h o r t , h a s become
a
moot
c a s e .
T h e r e
i s no
o c c a s i o n
o r
n e c e s s i t y f o r
a j u d g m e n t h e r e , and no e n d
17
1071464
t o be a c c o m p l i s h e d b y any j u d g m e n t we m i g h t
r e n d e r ,
and
we
t h e r e f o r e
d e c l i n e
t o
c o n s i d e r t h e c a s e as now p r e s e n t e d on
i t s
o r i g i n a l
m e r i t s
"
' (143 A l a .
a t
page 652, 9 So. a t page 215)
" W h a t e v e r may h a v e b e e n t h e s i t u a t i o n
when t h e
i n s t a n t
s u i t was commenced o r when t h e d e c r e e
was
r e n d e r e d ,
t h e
c a s e
i s now
moot,
a n d , f o r t h a t
r e a s o n , t h e a p p e a l i s due t o be and i s d i s m i s s e d . "
278
A l a . a t 390, 178 So. 2d a t 547.
I t i s e v i d e n t
t h a t t h e f o c a l
p o i n t o f t h e
p l a i n t i f f s '
c o m p l a i n t
was
t h e
p l a i n t i f f s '
d i s s a t i s f a c t i o n
w i t h
t h e
c i r c u m s t a n c e s
g i v i n g
r i s e t o B r a d l e y B y r n e ' s a p p o i n t m e n t as
c h a n c e l l o r o f A l a b a m a ' s t w o - y e a r c o l l e g e s y s t e m .
Upon B y r n e ' s
r e s i g n a t i o n as c h a n c e l l o r , t h e u l t i m a t e r e l i e f
s o u g h t b y t h e
p l a i n t i f f s
became
a
r e a l i t y ;
t h e r e f o r e ,
t h e r e
i s now
no
j u s t i c i a b l e
c o n t r o v e r s y , and any d e c l a r a t i o n by t h e C o u r t i n
t h i s d e c l a r a t o r y - j u d g m e n t
a c t i o n w o u l d be m e a n i n g l e s s .
" T h i s
c o u r t
w i l l n o t r e n d e r
a p u r e l y a d v i s o r y o p i n i o n n o r
d e c i d e
moot q u e s t i o n s
u n d e r t h e g u i s e o f a d e c l a r a t o r y j u d g m e n t . "
Homan v. B e a r d ,
268 A l a . 22, 23, 104 So. 2d 914, 915 (1958 )
( c i t i n g B i r m i n g h a m T r u s t N a t ' l Bank v. G a r t h , 263 A l a . 1 2 1 , 81
So.
2d 590
( 1 9 5 5 ) ) .
B e c a u s e t h e p l a i n t i f f s '
r e q u e s t s f o r
r e l i e f
became moot once B y r n e
r e s i g n e d as c h a n c e l l o r , t h e
d e c l a r a t o r y - j u d g m e n t
c o u n t
s e e k s ,
i n
e f f e c t ,
an
a d v i s o r y
18
1071464
o p i n i o n d e f i n i n g t h e t e r m " a g e n d a " as t h a t t e r m i s u s e d i n
t h e
Open M e e t i n g s A c t .
T h e r e i s a w e l l
e s t a b l i s h e d
e x c e p t i o n
t o t h e m o o t n e s s
d o c t r i n e
a l l o w i n g
c o u r t s t o r e a c h t h e u l t i m a t e
i s s u e e v e n i f
i t
h a s become
moot
"where
'a
b r o a d
p u b l i c
i n t e r e s t i s
i n v o l v e d . ' "
S l a w s o n v . A l a b a m a F o r e s t r y Comm'n, 631 So. 2d
953, 957 ( A l a . 1994) ( q u o t i n g Payne v . J.T.N., 568 So. 2d 830,
831
( A l a . C i v .
App. 1 9 9 0 ) ) .
See a l s o Chapman v . Gooden, 974
So.
2d a t 989 ( " I t i s t r u e
t h a t an e x c e p t i o n
e x i s t s f o r a
'moot c a s e i n v o l v i n g i s s u e s o f g r e a t p u b l i c i m p o r t a n c e , w h i c h
may
r e c u r i n t h e f u t u r e . ' "
( q u o t i n g
1A C . J . S . A c t i o n s
§ 81
( 2 0 0 5 ) ) ) .
F u r t h e r , i n S l a w s o n , a c a s e s e e k i n g t o r e q u i r e t h e
A l a b a m a F o r e s t r y C o m m i s s i o n t o p r o v i d e
p u b l i c n o t i c e o f any
s p e c i a l l y
h e l d
m e e t i n g ,
t h i s
C o u r t
s p e c i f i c a l l y
c o n c l u d e d :
"We
c o n s i d e r
t h e p u b l i c ' s
i n t e r e s t i n r e c e i v i n g
n o t i c e o f
p u b l i c m e e t i n g s t o be a " ' b r o a d p u b l i c
i n t e r e s t . ' "
I t t h u s
u l t i m a t e l y
a d d r e s s e d t h e n o t i c e
i s s u e .
631 So. 2d a t 957.
D e s p i t e
t h a t
e a r l i e r
h o l d i n g , we now c o n c l u d e , as we d i d
i n
Chapman, s u p r a ,
t h a t t h e f a c t s o f t h e p r e s e n t c a s e a r e c l e a r l y
d i s t i n g u i s h a b l e f r o m t h o s e i n S l a w s o n and do n o t r e q u i r e t h e
19
1071464
a p p l i c a t i o n
o f t h e p u b l i c - i n t e r e s t e x c e p t i o n .
T h i s C o u r t
i n
Chapman d i s t i n g u i s h e d S l a w s o n as
f o l l o w s :
"'The
c r i t e r i a
f o r
a p p l y i n g
t h e
p u b l i c
i n t e r e s t
e x c e p t i o n
t o
t h e
m o o t n e s s
d o c t r i n e
i n c l u d e
t h e
p u b l i c n a t u r e
o f
t h e
q u e s t i o n ,
t h e
d e s i r a b i l i t y
o f
an
a u t h o r i t a t i v e d e t e r m i n a t i o n
f o r
t h e
p u r p o s e
o f
g u i d i n g p u b l i c o f f i c e r s , and
t h e
l i k e l i h o o d t h a t
t h e
q u e s t i o n
w i l l
g e n e r a l l y
r e c u r . '
[1A C . J . S .
A c t i o n s
§
81
( 2 0 0 5 ) ]
( f o o t n o t e
o m i t t e d ) .
However,
t h i s
' e x c e p t i o n
i s
c o n s t r u e d
n a r r o w l y
...
and
a
c l e a r
s h o w i n g
o f
e a c h
c r i t e r i o n
i s
r e q u i r e d
t o
b r i n g
a
c a s e w i t h i n i t s t e r m s . ' I n r e A d o p t i o n o f W a l g r e e n ,
186
I l l . 2 d
362,
365,
238
I l l . Dec.
124,
710
N.E.2d
1226,
1227
( 1 9 9 9 ) .
" A l t h o u g h
t h i s
c a s e d o e s
i n v o l v e
a m a t t e r
o f
p u b l i c
i m p o r t a n c e ,
t h e
s e c o n d and
t h i r d
f a c t o r s
i n
t h e
a n a l y s i s w e i g h
a g a i n s t
t h e
a p p l i c a t i o n o f
t h e
' p u b l i c - i n t e r e s t '
e x c e p t i o n .
As
we
have
a l r e a d y
d i s c u s s e d ,
t h e
c o n d i t i o n s
t h a t
gave
r i s e
t o
t h i s
a c t i o n a r e u n l i k e l y t o r e c u r . I n d e e d , N a n c y W o r l e y ,
who
was
s e c r e t a r y
o f
s t a t e when
t h i s
a c t i o n
was
f i l e d ,
no
l o n g e r
s e r v e s
as
s e c r e t a r y
o f
s t a t e .
...
M o r e o v e r ,
i n
v i e w
o f
t h e
a c t i o n s
t a k e n
by
t h e
a t t o r n e y
g e n e r a l
i n
t h i s
c a s e ,
i n c l u d i n g
t h e
d i s t r i b u t i o n
o f h i s M a r c h 18,
2005, o p i n i o n
t o
t h e
r e g i s t r a r s
t h r o u g h o u t
t h e
S t a t e ,
as
w e l l
as
t h e
a c t i o n
o f
t h e
s e c r e t a r y
o f
s t a t e
h e r s e l f ,
i n
r e v i s i n g
t h e
v o t e r - r e g i s t r a t i o n
f o r m s ,
i t
i s
d i f f i c u l t
t o
see
how
a j u d g m e n t
...
w o u l d
f u r t h e r
e n l i g h t e n
t h e
s e c r e t a r y
o f
s t a t e
o r
t h e
r e g i s t r a r s
i n
t h e p e r f o r m a n c e o f
t h e i r
d u t i e s .
"These
f a c t o r s ,
a l t h o u g h
n o t
e x p r e s s l y
c o n s i d e r e d
i n
S l a w s o n ,
w e i g h e d
i n
f a v o r
o f
t h e
a p p l i c a t i o n
o f
t h e
e x c e p t i o n
i n t h a t
c a s e .
S l a w s o n
i n v o l v e d an
a c t i o n by
B a r t S l a w s o n and Naomi Furman
a g a i n s t
t h e
A l a b a m a
F o r e s t r y
C o m m i s s i o n
('the
C o m m i s s i o n ' )
and
o t h e r s ,
c h a l l e n g i n g
t h e
C o m m i s s i o n ' s
f i n a n c i a l
' s u p p o r t
o f
a
p r i v a t e
20
1071464
n o n p r o f i t
o r g a n i z a t i o n known as S t e w a r d s
o f
F a m i l y
F a r m s , R a n c h e s ,
and
F o r e s t s
( " S t e w a r d s " ) . '
631
So.
2d a t 955. The
a c t i o n s o u g h t a j u d g m e n t
d e c l a r i n g ,
among o t h e r t h i n g s , t h a t t h e C o m m i s s i o n
h a d v i o l a t e d
t h e
A l a b a m a
S u n s h i n e
Law,
A l a .
Code
1975,
§
13A-14-2,
by
f a i l i n g
t o
' p r o v i d e
t h e
p u b l i c
w i t h
n o t i c e o f a m e e t i n g i t h e l d by
s p e c i a l s e s s i o n
...
a t
w h i c h
t h e
C o m m i s s i o n
p a s s e d
a
r e s o l u t i o n
a p p r o v i n g
t h e u s e
o f
C o m m i s s i o n
r e s o u r c e s
...
i n
p r o m o t i n g S t e w a r d s
' 631 So. 2d a t 955. They a l s o
' s o u g h t
t o
e n j o i n
t h e
[ C o m m i s s i o n ]
f r o m , '
among
o t h e r
t h i n g s , ' m e e t i n g i n s e c r e t ,
[and] f r o m m e e t i n g
w i t h o u t
p r i o r
p u b l i c
n o t i c e . '
I d . The
t r i a l
c o u r t
e n t e r e d
a summary j u d g m e n t f o r t h e d e f e n d a n t s .
On
a p p e a l ,
t h e
C o m m i s s i o n
c o n t e n d e d
t h a t
t h e
n o t i c e
i s s u e was moot, b e c a u s e
i t h a d b e g u n g i v i n g
p u b l i c
n o t i c e
o f
i t s m e e t i n g s .
631
So.
2d
a t
957.
T h i s
C o u r t ,
c i t i n g
t h e
p u b l i c - i n t e r e s t e x c e p t i o n , i d . ,
p r o c e e d e d
t o a d d r e s s
t h e
m e r i t s
and
r e v e r s e d
t h e
summary j u d g m e n t .
631 So. 2d a t
959.
" S l a w s o n
i n v o l v e d
two
n o t a b l e
f e a t u r e s
t h a t
d i s t i n g u i s h
i t f r o m
t h i s
c a s e .
F i r s t ,
and
p e r h a p s
most s i g n i f i c a n t l y , t h e C o m m i s s i o n was
s t i l l
a r g u i n g
on a p p e a l t h a t t h e s t a t u t e d i d n o t r e q u i r e
t h a t i t
p r o v i d e
n o t i c e . I n p a r t i c u l a r , i t s o u g h t t o p e r s u a d e
t h i s
C o u r t
t o
' f o l l o w
t h e
G e o r g i a Supreme
C o u r t ,
w h i c h [had] i n d i c a t e d t h a t " [ G e o r g i a ' s ]
S u n s h i n e
Law
d e a l s w i t h t h e o p e n n e s s o f p u b l i c m e e t i n g s , n o t
w i t h
t h e
n o t i c e
o f s u c h m e e t i n g s . " '
631
So.
2d a t
958
( q u o t i n g
Harms
v.
Adams,
238
Ga.
18 6,
187 ,
232
S.E.2d 61, 62
( 1 9 7 7 ) ) .
Thus, u n l i k e
t h i s c a s e , t h e
d i s p o s i t i v e
i s s u e
i n S l a w s o n ,
n a m e l y ,
t h e
c o r r e c t
c o n s t r u c t i o n and a p p l i c a t i o n o f t h e A l a b a m a S u n s h i n e
Law,
r e m a i n e d
c o n t r o v e r t e d ,
e v e n
a t t h e
a p p e l l a t e
s t a g e .
H e r e ,
by
c o n t r a s t ,
t h e
d i s p o s i t i v e
i s s u e ,
n a m e l y ,
t h e c o r r e c t c o n s t r u c t i o n and a p p l i c a t i o n o f
§ 177,
[ A l a . C o n s t . 1901,] has n o t b e e n d i s p u t e d
by
a n y o n e
s i n c e
t h e
i n t e r v e n t i o n
o f
t h e
a t t o r n e y
g e n e r a l
a t t h e o u t s e t
o f t h e c a s e .
21
1071464
" S e c o n d , b e c a u s e o f t h e c o n t i n u i n g
d i s p u t e i n
S l a w s o n o v e r t h e n e c e s s i t y o f n o t i c e ,
t h e r e was a
r e a s o n a b l e p r o b a b i l i t y t h a t t h e c h a l l e n g e d
c o n d u c t
w o u l d r e c u r , a b s e n t a f i n a l
j u d i c i a l
d e t e r m i n a t i o n .
I n f a c t , t h e C o m m i s s i o n h a d r e v e r s e d
i t s p o s i t i o n on
t h e
n o t i c e
i s s u e more t h a n
o n c e . I t h a d
p r o v i d e d
p u b l i c
n o t i c e
o f i t s
m e e t i n g s
i n t h e p a s t ,
'but
[had]
d i s c o n t i n u e d
t h a t p r a c t i c e b e c a u s e t h e p u b l i c
d i d n o t a t t e n d . ' 631 So. 2d a t 957. By t h e t i m e t h e
c a s e
r e a c h e d
t h i s
C o u r t , t h e C o m m i s s i o n was
a g a i n
p r o v i d i n g
p u b l i c
n o t i c e . I d . However, b y
p r e s s i n g
i t s
p o s i t i o n i n t h i s
C o u r t
t h a t
n o t i c e
was n o t
r e q u i r e d , t h e C o m m i s s i o n s i g n a l e d i t s
u n w i l l i n g n e s s
t o
a b a n d o n i t s c l a i m o f t h e r i g h t t o
d i s c o n t i n u e
g i v i n g
n o t i c e a t any t i m e .
By c o n t r a s t , no one i n
t h i s c a s e i s i n s i s t i n g , e x p r e s s l y o r b y i m p l i c a t i o n ,
on
t h e
r i g h t
t o
r e v i v e
t h e
p r i o r
p o l i c y
o f
d i s f r a n c h i s e m e n t
w i t h o u t r e g a r d t o t h e n a t u r e o f t h e
f e l o n y c o n v i c t i o n . F o r t h e s e r e a s o n s , S l a w s o n i s
n o t
c o n t r o l l i n g . "
Chapman, 974 So. 2 d a t 989-90 (some e m p h a s i s
o r i g i n a l ;
some
e m p h a s i s a d d e d ) .
S i m i l a r l y , h e r e , d e s p i t e t h e p l a i n t i f f s ' a t t e m p t t o c o u c h
t h e i r
c l a i m s
on
a p p e a l
as
c o n c e r n i n g
t h e B o a r d ' s
n o t i c e
p r a c t i c e s , i t
i s a p p a r e n t t o t h i s C o u r t t h a t t h e p l a i n t i f f s '
c l a i m s
do
n o t
c o n c e r n
t h e B o a r d ' s
n o t i c e
p r a c t i c e s , i n
g e n e r a l , b u t i n s t e a d p e r t a i n t o a s i n g l e , s p e c i f i c n o t i c e and
a g e n d a , w h i c h ,
t h e y s a y , was v a g u e and o v e r b r o a d and t h u s
i l l e g a l u n d e r t h e Open M e e t i n g s A c t . A l t h o u g h t h e p l a i n t i f f s
do i n c l u d e i n t h e i r b r i e f t o t h i s C o u r t some g e n e r a l
c r i t i c i s m
o f t h e B o a r d ' s n o t i c e s o f p r e v i o u s
m e e t i n g s , i t
i s c l e a r
t h a t
22
1071464
b o t h t h e s t a t e d c l a i m s
and t h e
r e l i e f s o u g h t i n t h e
u n d e r l y i n g
c o m p l a i n t
a r e
s p e c i f i c a l l y
l i m i t e d
t o
t h e
May
10,
2007,
m e e t i n g n o t i c e
and
t h e B o a r d ' s
a c t i o n s
d u r i n g
t h a t
m e e t i n g ,
more
s p e c i f i c a l l y ,
t o
B y r n e ' s
a p p o i n t m e n t
as
c h a n c e l l o r .
B e c a u s e t h e d i s p o s i t i v e i s s u e i n t h e p r e s e n t a p p e a l d e a l s
w i t h
t h e
c o n t e n t s
o f
a
s p e c i f i c
n o t i c e
and
n o t
t h e
o v e r a l l
" n e c e s s i t y
o f
n o t i c e , "
we
c o n c l u d e
t h a t
t h e r e
has
b e e n
no
d e m o n s t r a t i o n
o f
a
l i k e l i h o o d
o f
r e p e t i t i o n o f
t h e
f a c t s
g i v i n g
r i s e
t o
t h e
u n d e r l y i n g
l i t i g a t i o n ,
and
we
d i s c e r n
no
p u b l i c
i n t e r e s t i n a d d r e s s i n g
t h e m e r i t s
o f t h e
i s s u e
r a i s e d
by
t h e
p l a i n t i f f s
on
a p p e a l .
F u r t h e r ,
t h e r e
i s
n o t h i n g
i n d i c a t i n g t h a t t h e s t a t u t o r y n o t i c e r e q u i r e m e n t s
" w i l l n o t
be
s t r i c t l y a d h e r e d t o i n t h e
f u t u r e . "
E a g e r t o n ,
359
So.
2d
a t
769.
T h i s a p p e a r s e s p e c i a l l y p l a u s i b l e b e c a u s e , as n o t e d
by
t h e
p l a i n t i f f s ,
t h i s
i s t h e
f i r s t
l i t i g a t i o n
c h a l l e n g i n g
t h e
s u f f i c i e n c y
o f
t h e
B o a r d ' s
n o t i c e / a g e n d a
p o l i c y
s i n c e
t h e
i n c e p t i o n
o f
t h e
n o t i c e
r e q u i r e m e n t
on
O c t o b e r
1,
2005.
M o r e o v e r , any
f u t u r e d e t e r m i n a t i o n
as t o t h e s u f f i c i e n c y o f a
s p e c i f i c
n o t i c e
a n d / o r
a g e n d a
p o s t e d
by
t h e
B o a r d
w o u l d
r e q u i r e e x a m i n a t i o n o f t h e l a n g u a g e o f t h a t n o t i c e i n l i g h t
o f
t h e p a r t i c u l a r t o p i c s c o v e r e d d u r i n g
t h e m e e t i n g as
t o w h i c h
23
1071464
i t
gave
n o t i c e ; t h e r e f o r e ,
any
i n q u i r y
i n t h e p r e s e n t
c a s e
" w o u l d
r e q u i r e
us
t o s p e c u l a t e on
p r e s e n t l y
u n d e t e r m i n a b l e
c i r c u m s t a n c e s . "
B r u n e r , 865
So. 2d a t 1176.
" M a t t e r s
t h a t
may
o r
may
n o t
o c c u r
i n
t h e
f u t u r e
a r e
n o t
m a t t e r s
i n
c o n t r o v e r s y . "
Case v. A l a b a m a S t a t e B a r , 939 So. 2d 881,
884
( A l a .
2 0 0 6 ) .
H e r e ,
any
a c t i o n
by
t h i s
C o u r t
on
t h e
m e r i t s
w o u l d
u l t i m a t e l y
h a v e
no
e f f e c t
on
t h e
r i g h t s
o f
t h e
p a r t i e s ,
b e c a u s e
t h e
p l a i n t i f f s
h a v e
a l r e a d y ,
and
i n a d v e r t e n t l y ,
o b t a i n e d t h e r e l i e f t o w h i c h t h e y w o u l d have b e e n e n t i t l e d
had
t h e y s u c c e e d e d on t h e i r d e c l a r a t o r y - j u d g m e n t c l a i m s --
B y r n e
i s no l o n g e r c h a n c e l l o r o f A l a b a m a ' s t w o - y e a r
c o l l e g e
s y s t e m .
A c c o r d i n g l y ,
b a s e d
on
t h e
a l l e g a t i o n s
c o n t a i n e d
i n
t h e
p l a i n t i f f s '
c o m p l a i n t , " [ a ] d e c i s i o n by us i n t h i s c a s e
w o u l d
a c c o m p l i s h
n o t h i n g " ; t h e r e f o r e ,
we
c o n c l u d e
t h a t
t h e
c a s e
b e f o r e us i s moot and t h a t t h e a p p e a l i s due t o be d i s m i s s e d .
E a g e r t o n , s u p r a .
APPEAL DISMISSED.
Cobb, C . J . , and W o o d a l l , S m i t h , and P a r k e r , J J . , c o n c u r .
24 | December 4, 2009 |
0baf155c-ee40-40d5-a147-291ef3718e69 | Horton v. Gilmer | 94 So. 2d 393 | N/A | Alabama | Alabama Supreme Court | 94 So. 2d 393 (1957)
June HORTON
v.
Max V. GILMER et ux.
6 Div. 68.
Supreme Court of Alabama.
February 21, 1957.
Rehearing Denied April 25, 1957.
*394 Wilton W. Rabren, Lokey & Rabren, Columbiana, for appellant.
Taylor, Higgins, Windham & Perdue, Birmingham, for appellees. Mary A. Lee, Montgomery, for State Department of Pensions and Security, amicus curiae, in support of appeal.
SIMPSON, Justice.
This appeal involves the custodial status of an infant. The decree denied a petition of the natural mother for a writ of habeas corpus for her illegitimate female child against the appellees who are in loco parentis by virtue of the mother's voluntary agreement to relinquish custody of the child to them. The question presented is whether the decree of the trial court leaving the custody of the infant with its foster parents is correct.
The paramount consideration, of course, in dealing with the custody of an infant is the best interest and welfare of the child. 15 Alabama Digest, Parent & Child.
In passing on the question of whether a parent who has voluntarily relinquished custody of a minor child should be entitled to regain custody, each case must be determined from its own peculiar facts. Jackson v. Farmer, 247 Ala. 298, 24 So. 2d 130.
A short recital of the evidence will suffice to illustrate the soundness of the decree below. The evidence shows without conflict that the mother of the child became pregnant as the result of an adulterous relationship with an officer in the Air Force. The mother stated that her former husband was not the father of the child and that the Air Force officer was the father, but she refused to name him. The appellant's husband testified that the appellant voluntarily left him in September of 1954, and that they had not had marital relations since then, and further that he was not the father of the child in question. The child was born on April 26, 1956. The husband obtained a divorce from the appellant in October of 1955, on the ground of abandonment. The appellant was married to her husband at the *395 age of 16 and was 20 years old when the child was born. The appellant testified that after she left her husband in September of 1954, she went to live in the home of her parents at Calera, Alabama. She then went to Selma, Alabama, and worked in a five and dime store. From Selma, she went to Pensacola, Florida with three girl friends and stayed three weeks. She returned to the home of her parents from Pensacola, and remained there until July, 1955, when she went to Birmingham, Alabama. While in Birmingham, she worked in Johnny Ray's Barbecue as a waitress for three weeks. Around the first of September, 1955, she returned to the home of her parents in Calera, where she stayed until November, 1955. She then went to Columbus, Georgia, and around the 1st of December, 1955, she returned to her parents where she remained until about March 19, 1956. We mention the various peregrinations of the appellant as indicative of her wayward tendencies, her lack of stability and no regular employment.
On March 19, 1956, the appellant, after denying to her parents that she was pregnant, went to Birmingham, Alabama, and called Johnny Ray, her former employer. The appellant revealed her pregnant condition to Mrs. Johnny Ray and said she did not want the baby. The appellant requested that she be put in contact with someone who would adopt the baby and defray her expenses. As a result of the appellant's request, she was put in contact with appellee, Dr. Max V. Gilmer, a dentist. Although the Gilmers were desirous of adopting a child, he was very cautious in his dealings with the appellant. Dr. Gilmer had competent legal advice and furnished the appellant counsel who discussed the matter fully with her. The appellant was advised to go to the Salvation Army Hospital for unwed mothers or the Welfare Department, but she insisted that she would go neither place. It was her desire that she place the child with someone who would furnish the child a good home and defray her expenses. The Gilmers, then, accepted the appellant's offer for them to have custody of her child after it was born, and immediately put her under the care of a competent obstetrician. They have, up to the time of this suit, expended some $1,200 for doctor's bills, hospital bills, food, housing and clothing on appellant's behalf, before, during and after the birth of the child.
The appellant lived up to her agreement for a while. Three days after the birth of the child she signed, in the presence of a Notary Public, a document consenting to the adoption of her child by the Gilmers. Custody of the child was given the Gilmers four days after its birth on May 1, 1956, by the appellant, after her discharge from the hospital. On May 15, 1956, the appellant contacted an attorney with a view of regaining custody of her child. On May 24, the appellant called her attorney and left word for him to drop the proceedings. On June 13, 1956, she contacted her attorney again and instituted the present habeas. corpus proceeding which is before us now. The Gilmers have filed a petition for the adoption of the child, but the court has taken no action thereon.
If the appellant regains custody of her child, she plans to live with her mother and father. Her parents' home is a six-room frame house, with three bedrooms. Four of the appellant's younger brothers live there with the mother and father. This is a good home, and the parents are willing to provide for appellant and her baby to the best of their financial ability, but the father expressed, at one time, a fear that the appellant might bring the child there and then go off and leave it, whichconsidering appellant's prior conductmight well be the case. He first told the appellant that she could not bring the child to his home, but he later changed his mind and gave his consent. The appellant has no income of her own. The appellant's father earns about $300 per month as a combined income from his work as a preacher and as a fender and body repairman. On this income *396 he supports six people, which includes the appellant.
The Gilmers have a three-bedroom brick home in a good neighborhood. The evidence is without dispute that they are fit and proper persons to have the custody of the child, and are able to provide the child with a proper home and care. Max V. Gilmer is a dentist, practicing in the City of Birmingham. Mrs. Gilmer has a Master of Arts Degree in education and taught school from 1947 until shortly before they were given custody of the child. Since they have had' custody of the child, Mrs. Gilmer has not taught school but has concentrated on the raising of the child. Only the Gilmers and this one child are in the home.
The trial judgewho by the way has had much experience in adjudicating such mattersheard the evidence ore tenus and decreed that the best interest of the child was with its foster parents. We are unable to overturn this finding.
True, prima facie, the parent is entitled to the custody of a child and with respect to one born out of wedlock the mother's prima facie right is regarded as paramount; but this prima facie right may be forfeited. Barnett v. Harvel, 257 Ala. 600, 60 So. 2d 435; Jackson v. Farmer, supra.
As of course, an agreement by a parent for the custody of a child cannot bind a court of equity, nor is the question of custody ever res judicata. Barnett v. Harvel, supra; Jackson v. Farmer, supra. Nor is financial ability a matter of controlling influence, though of course to be given some consideration in connection with the ability of the parties to properly care for the child. Edwards v. Sessions, 254 Ala. 522, 48 So. 2d 771; Jackson v. Farmer, supra.
But, we do look to an agreement between the parties to help us arrive at what is the best interest of the child. Barnett v. Harvel, supra.
We have approved the following statement of the rule from Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685, 687, 40 L.R.A. 623:
Barnett v. Harvel, supra; Stifflemire v. Williamson, 250 Ala. 409, 34 So. 2d 685; Greene v. Greene, 249 Ala. 155, 30 So. 2d 444.
Being mindful of our solemn duty in cases where the custody of a minor child is concerned, we have examined all of the evidence in this case with painstaking care and cannot say with any degree of certainty the decree awarding custody of the minor child to its foster parents was against the weight of the evidence or manifestly unjust.
Other tendencies of the evidence might be alluded to as indicating the impropriety of having custody transferred to petitioner, but we think we have said enough to indicate our view of the case.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | February 21, 1957 |
44b98ef6-8e39-4809-ba4d-5cb1b3eea79b | Banyan Corporation v. W. Bruce Leithead III | N/A | 1071078 | Alabama | Alabama Supreme Court | Rel 12/11/09
Notice: T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e
Reporter of Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741
((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may
be
made b e f o r e
t h e o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1071078
Banyan C o r p o r a t i o n
v.
W. Bruce L e i t h e a d
I I I
Appeal from Shelby
C i r c u i t
Court
(CV-04-924)
PER CURIAM.
B a n y a n C o r p o r a t i o n
a p p e a l s
f r o m t h e t r i a l
c o u r t ' s
o r d e r
e n t e r i n g a p a r t i a l
summary j u d g m e n t i n f a v o r o f W.
B r u c e
L e i t h e a d
I I I . We d i s m i s s t h e a p p e a l .
L e i t h e a d
f i l e d
h i s c o m p l a i n t
on
J a n u a r y
9 ,
2 0 0 4 ,
1071078
a s s e r t i n g a g a i n s t B a n y a n and D o u b l e C a s e C o r p o r a t i o n , a w h o l l y
owned s u b s i d i a r y o f B a n y a n , c l a i m s o f n e g l i g e n c e and b r e a c h o f
h i s
employment
c o n t r a c t
w i t h D o u b l e C a s e .
L e i t h e a d
a l l e g e d
t h a t B a n y a n h a d d e n i e d h i m c e r t a i n b e n e f i t s , c o m p e n s a t i o n , and
s t o c k
o p t i o n s
t o w h i c h he
s a y s he was
e n t i t l e d
u n d e r t h e
employment
c o n t r a c t .
On M a r c h 15, 2004,
L e i t h e a d
f i l e d
an
amended c o m p l a i n t , a s s e r t i n g a d d i t i o n a l c l a i m s o f f r a u d u l e n t
m i s r e p r e s e n t a t i o n
and f r a u d u l e n t
s u p p r e s s i o n
a g a i n s t
B a n y a n
and D o u b l e C a s e .
On
O c t o b e r 26,
2007,
L e i t h e a d
f i l e d
a m o t i o n
f o r a
p a r t i a l summary j u d g m e n t on h i s b r e a c h - o f - c o n t r a c t
c l a i m .
I n
h i s
m o t i o n , L e i t h e a d a r g u e d t h a t t h e c o r p o r a t e
v e i l
s h o u l d be
p i e r c e d as t o D o u b l e C a s e and t h a t B a n y a n s h o u l d be h e l d
l i a b l e
f o r
D o u b l e C a s e ' s b r e a c h
o f L e i t h e a d ' s
employment
c o n t r a c t .
L e i t h e a d
a l l e g e d
t h a t
B a n y a n
c o n t r o l l e d D o u b l e C a s e t o t h e
e x t e n t t h a t D o u b l e C a s e became a mere i n s t r u m e n t a l i t y o r
a l t e r
ego o f B a n y a n a n d , a l t e r n a t i v e l y ,
t h a t B a n y a n was a p a r t y t o
and b r e a c h e d L e i t h e a d ' s
employment
c o n t r a c t .
I n i t s o r d e r ,
t h e
t r i a l c o u r t s t a t e d t h a t i t
was g r a n t i n g L e i t h e a d ' s m o t i o n
f o r
a p a r t i a l summary j u d g m e n t on b o t h a l t e r n a t i v e g r o u n d s :
" 1 . W i t h
r e s p e c t
t o t h e e q u i t a b l e
d o c t r i n e o f
' p i e r c i n g
t h e
c o r p o r a t e
v e i l , '
t h e
c o u r t
f i n d s
2
1071078
o v e r w h e l m i n g ,
u n d i s p u t e d
e v i d e n c e
t h a t
t h e r e
was
l i t t l e
o r no e f f o r t on t h e p a r t o f e i t h e r B a n y a n
C o r p o r a t i o n
o r D o u b l e C a s e
C o r p o r a t i o n
t o
m a i n t a i n
s e p a r a t e
c o r p o r a t e
f o r m a l i t i e s . To t h e c o n t r a r y , t h e
e v i d e n c e
i s u n d i s p u t e d
t h a t
D o u b l e C a s e
h a d no
i n d e p e n d e n t ,
f o r m a l
management
o r
f i n a n c i a l
s t r u c t u r e ,
a n d
t h a t
t h e
p r i n c i p a l s
o f
B a n y a n
o p e r a t e d
D o u b l e C a s e o u t o f t h e i r b a c k p o c k e t .
The
e v i d e n t i a r y
r e c o r d
i s r e p l e t e
w i t h
c i r c u m s t a n c e
a f t e r
c i r c u m s t a n c e
i n w h i c h
B a n y a n
c o m p l e t e l y
d i s r e g a r d e d
t h e
e x i s t e n c e
o f
D o u b l e C a s e
as
a
s e p a r a t e
c o r p o r a t e
e n t i t y .
As a
r e s u l t
o f t h e
d o m i n a t i o n
a n d c o n t r o l o f D o u b l e C a s e b y
B a n y a n ,
c o m b i n e d w i t h t h e t o t a l
l a c k o f e f f o r t on t h e p a r t
o f
t h e s e
c o m p a n i e s t o m a i n t a i n
e v e n a modicum o f
c o r p o r a t e
f o r m a l i t y , D o u b l e C a s e
e x i s t e d
i n name
o n l y . When v i e w e d i n t h e l i g h t
most
f a v o r a b l e t o
[ B a n y a n a n d D o u b l e C a s e ] , t h e o v e r w h e l m i n g
e v i d e n c e
i s
t h a t
D o u b l e C a s e was t h e mere
i n s t r u m e n t a l i t y
a n d / o r a l t e r ego o f B a n y a n .
"The
c o u r t
f i n d s
t h a t
t h e r e
e x i s t no g e n u i n e
i s s u e s
o f m a t e r i a l
f a c t ,
a n d t h a t
[ L e i t h e a d ] i s
e n t i t l e d
t o j u d g m e n t
as
m a t t e r
o f l a w on h i s
e q u i t a b l e
c l a i m .
[ L e i t h e a d ' s ]
M o t i o n
f o r P a r t i a l
Summary J u d g m e n t i s due t o b e , a n d i t h e r e b y i s ,
GRANTED. I t i s t h e j u d g m e n t o f t h i s
c o u r t
t h a t no
c o r p o r a t e
s h i e l d
e x i s t s
b e t w e e n D e f e n d a n t s
B a n y a n
C o r p o r a t i o n
a n d
D o u b l e C a s e
C o r p o r a t i o n .
As
D o u b l e C a s e C o r p o r a t i o n i s t h e mere i n s t r u m e n t a l i t y
a n d / o r
a l t e r
ego
o f
B a n y a n
C o r p o r a t i o n ,
a n y
l i a b i l i t y f o r
a b r e a c h o f d u t y o r o b l i g a t i o n on t h e
p a r t o f D o u b l e C a s e
s h a l l be b o r n e b y B a n y a n .
" 2 . W i t h r e s p e c t t o [ L e i t h e a d ' s ] c o n t e n t i o n
t h a t
D e f e n d a n t B a n y a n C o r p o r a t i o n was a d i r e c t
p a r t y t o
t h e
c o n t r a c t made t h e b a s i s o f [ L e i t h e a d ' s ]
s u i t ,
t h e c o u r t f i n d s t h a t b y [ B a n y a n ' s a n d D o u b l e C a s e ' s ]
t e s t i m o n y ,
a n d as
s i g n i f i e d
on t h e f a c e
o f t h e
document i t s e l f , D e f e n d a n t B a n y a n i n t e n t i o n a l l y made
i t s e l f a p a r t y t o t h e c o n t r a c t . B a n y a n a c k n o w l e d g e d
t h e
e x i s t e n c e o f t h e c o n t r a c t a n d i t s o b l i g a t i o n s
3
1071078
t h e r e u n d e r
i n i t s 10-K
f i l i n g s . When v i e w e d i n
t h e
l i g h t most
f a v o r a b l e
t o [ B a n y a n ] ,
t h e
c o u r t
f i n d s
t h a t t h e r e e x i s t no g e n u i n e i s s u e s o f m a t e r i a l
f a c t ,
and
t h a t as a m a t t e r o f l a w , [ L e i t h e a d ' s ] M o t i o n f o r
P a r t i a l Summary J u d g m e n t i s due
t o be,
and
i t h e r e b y
i s , GRANTED. B a n y a n C o r p o r a t i o n
i s a d j u d g e d t o be
a
s i g n a t o r y and
p a r t y t o t h e
c o n t r a c t made t h e
b a s i s
o f
t h i s
s u i t .
As
s u c h , B a n y a n C o r p o r a t i o n
s h a l l
be
l i a b l e
f o r
any
b r e a c h
o f
s a i d c o n t r a c t
as
may
be
d e t e r m i n e d by
t h e
j u r y .
" 3 .
W i t h
r e s p e c t
t o
[ L e i t h e a d ' s ] a l l e g a t i o n s
c o n c e r n i n g
[ B a n y a n ' s
and
D o u b l e C a s e ' s ] b r e a c h
o f
c o n t r a c t
and
t h e damages
r e s u l t i n g
t h e r e f r o m ,
t h e
c o u r t
f i n d s
t h a t
t h e r e
e x i s t
g e n u i n e
i s s u e s
o f
m a t e r i a l
f a c t
w h i c h
r e n d e r
summary
j u d g m e n t
i n a p p r o p r i a t e .
[ L e i t h e a d ' s ]
M o t i o n
f o r
P a r t i a l
Summary
J u d g m e n t
w i t h
r e s p e c t
t o
[ B a n y a n ' s
and
D o u b l e C a s e ' s ] b r e a c h o f c o n t r a c t i s h e r e b y DENIED.
" 4 .
B a s e d upon t h e
f o r e g o i n g ,
t h e
c o u r t
f i n d s
t h a t
t h e
M o t i o n
f o r Summary J u d g m e n t by
D e f e n d a n t
B a n y a n C o r p o r a t i o n
i s due
t o be,
and
i t h e r e b y i s ,
DENIED.
" 5 .
The
C o u r t
e x p r e s s l y d i r e c t s e n t r y
o f
t h i s
j u d g m e n t p u r s u a n t t o A [ l a ] .
R.
C i v . P.
R u l e
5 4 ( b ) ,
as
t h e
C o u r t
has
d e t e r m i n e d
t h a t
t h e r e
i s no
j u s t
r e a s o n f o r d e l a y i n t h e e n t r y o f a f i n a l j u d g m e n t
as
t o
t h e
i s s u e s
a d d r e s s e d
i n p a r a g r a p h s
1.
and
2.
a b o v e . "
The
t r i a l
c o u r t ' s
o r d e r
d o e s n o t
u l t i m a t e l y d i s p o s e
o f
t h e
b r e a c h - o f - c o n t r a c t
c l a i m .
B a n y a n
a p p e a l s .
On a p p e a l , B a n y a n a r g u e s t h a t t h e r e a r e g e n u i n e i s s u e s o f
m a t e r i a l
f a c t c o n c e r n i n g
t h e
t r i a l
c o u r t ' s d e c i s i o n t h a t
t h e
c o r p o r a t e
v e i l
as
t o D o u b l e C a s e be
p i e r c e d ,
t h e r e b y
h o l d i n g
4
1071078
B a n y a n l i a b l e f o r any damages L e i t h e a d s u f f e r e d as a r e s u l t
o f
D o u b l e C a s e ' s
b r e a c h
o f
h i s
e m p l o y m e n t
c o n t r a c t
a n d ,
a l t e r n a t i v e l y ,
t h a t
B a n y a n
was
a
p a r t y
t o
L e i t h e a d ' s
e m p l o y m e n t c o n t r a c t and t h u s i s l i a b l e f o r any b r e a c h o f t h a t
c o n t r a c t .
B e f o r e we c a n a d d r e s s B a n y a n ' s a r g u m e n t s , h o w e v e r ,
i t
i s
n e c e s s a r y
t o
d e t e r m i n e
w h e t h e r
t h i s
C o u r t
has
j u r i s d i c t i o n
t o h e a r B a n y a n ' s a p p e a l .
I n o u r r e c e n t c a s e o f N o r t h A l a b a m a E l e c t r i c
C o o p e r a t i v e
v. New Hope T e l e p h o n e
C o o p e r a t i v e , 7 So. 3d 342, 344-45 ( A l a .
2 0 0 8 ) ,
t h i s
C o u r t
s t a t e d :
" I t
i s i n c u m b e n t upon
t h i s
C o u r t t o e n s u r e
t h a t i t
has
j u r i s d i c t i o n
t o h e a r t h e a p p e a l .
"'"As
t h i s
c o u r t has
s a i d many
t i m e s
p r e v i o u s l y ,
a
f i n a l
j u d g m e n t i s n e c e s s a r y
t o
g i v e
j u r i s d i c t i o n
t o
t h i s
c o u r t on
an
a p p e a l ,
and
i t c a n n o t
be
w a i v e d
by
t h e
p a r t i e s .
... "
"'When i t i s d e t e r m i n e d
t h a t an o r d e r
a p p e a l e d f r o m i s n o t a
f i n a l
j u d g m e n t , i t
i s
t h e
d u t y
o f t h e
C o u r t
t o d i s m i s s
t h e
a p p e a l ex mero motu.'
" P o w e l l v.
R e p u b l i c N a t ' l
L i f e
I n s . Co.,
293
A l a .
101 ,
102,
300
So.
2d
359,
360
(1
974)
( q u o t i n g
McGowin I n v e s t m e n t
Co.
v. J o h n s t o n e ,
291 A l a .
714,
715,
287
So. 2d 835,
836
( 1 9 7 3 ) ) .
" ' O r d i n a r i l y , an a p p e a l c a n be
b r o u g h t
5
1071078
o n l y f r o m a f i n a l j u d g m e n t . A l a .
Code 1975,
§
1 2 - 2 2 - 2 .
I f a
c a s e
i n v o l v e s m u l t i p l e
c l a i m s
o r m u l t i p l e p a r t i e s ,
an
o r d e r i s
g e n e r a l l y n o t f i n a l
u n l e s s i t d i s p o s e s o f
a l l
c l a i m s as t o a l l p a r t i e s .
R u l e
5 4 ( b ) ,
A l a .
R.
C i v . P. However, when an
a c t i o n
c o n t a i n s more t h a n
one
c l a i m f o r
r e l i e f ,
R u l e 5 4 ( b ) a l l o w s t h e c o u r t t o d i r e c t t h e
e n t r y o f a f i n a l j u d g m e n t as t o one o r more
o f
t h e
c l a i m s ,
i f i t makes
t h e
e x p r e s s
d e t e r m i n a t i o n t h a t t h e r e i s no j u s t
r e a s o n
f o r
d e l a y . '
" G r a n t h a m v. V a n d e r z y l ,
802
So. 2d 1077,
1079-80
( A l a .
2 0 0 1 ) . "
F u r t h e r , i n Haynes v . A l f a
F i n a n c i a l
C o r p . , 730 So. 2d 178,
181 ( A l a . 1 9 9 9 ) ,
t h i s C o u r t
h e l d :
" P u r s u a n t
t o R u l e
5 4 ( b ) , [ A l a .
R. C i v . P.,] a
t r i a l
c o u r t
may
d i r e c t
' t h e
e n t r y
o f
a
f i n a l
j u d g m e n t as t o one o r more b u t f e w e r t h a n a l l
o f t h e
c l a i m s o r p a r t i e s . '
B u t R u l e
5 4 ( b ) makes an
o r d e r
f i n a l -- and t h e r e f o r e a p p e a l a b l e -- ' o n l y where t h e
t r i a l
c o u r t
"has
c o m p l e t e l y
d i s p o s e d
o f one o f a
number
o f
c l a i m s ,
o r one
o f
m u l t i p l e
p a r t i e s . " '
T a n n e r v. A l a b a m a
Power
Co.,
617
So. 2d 656,
656
( A l a . 1993)
( q u o t i n g C o m m i t t e e Comments on t h e 1973
a d o p t i o n o f R u l e 5 4 ( b ) )
( e m p h a s i s a d d e d i n T a n n e r ) .
I n
o t h e r w o r d s , f o r a R u l e
5 4 ( b )
c e r t i f i c a t i o n
o f
f i n a l i t y t o be e f f e c t i v e , i t must
f u l l y
a d j u d i c a t e
a t l e a s t one c l a i m o r f u l l y d i s p o s e o f t h e c l a i m s as
t h e y r e l a t e t o a t l e a s t one p a r t y . "
I n t h e p r e s e n t c a s e , i t
i s u n d i s p u t e d t h a t t h e o r d e r
f r o m
w h i c h
t h i s a p p e a l was t a k e n d i d n o t c o m p l e t e l y d i s p o s e o f any
o f
t h e s u b s t a n t i v e c l a i m s i n t h i s
c a s e ,
n o r d i d t h e
o r d e r
f u l l y
d i s p o s e o f t h e c l a i m s as t h e y
r e l a t e t o a t l e a s t
one
6
1071078
p a r t y .
The
t r i a l
c o u r t d e t e r m i n e d
o n l y t h a t D o u b l e C a s e
was
B a n y a n ' s mere
i n s t r u m e n t a l i t y
o r
a l t e r
ego
and
t h a t ,
as
a
r e s u l t , any
l i a b i l i t y a t t r i b u t a b l e t o D o u b l e C a s e w o u l d a l s o be
b o r n e
by B a n y a n
and
t h a t B a n y a n was
a p a r t y t o L e i t h e a d ' s
e m p l o y m e n t
c o n t r a c t w i t h
D o u b l e C a s e .
The
t r i a l
c o u r t ' s
d e c i s i o n , h o w e v e r , does n o t d e t e r m i n e
w h e t h e r D o u b l e C a s e
o r
B a n y a n i s l i a b l e f o r t h e a l l e g e d b r e a c h o f
c o n t r a c t .
A c c o r d i n g l y ,
t h e
t r i a l
c o u r t
e r r e d
i n
c e r t i f y i n g
i t s
p a r t i a l summary j u d g m e n t on t h e b r e a c h - o f - c o n t r a c t c l a i m
as
f i n a l
p u r s u a n t
t o R u l e
5 4 ( b ) , A l a . R.
C i v . P.
"When i t i s
d e t e r m i n e d
t h a t
an
o r d e r
a p p e a l e d
f r o m
i s
n o t
a
f i n a l
j u d g m e n t , i t i s t h e d u t y o f t h e C o u r t t o d i s m i s s t h e a p p e a l ex
mero motu."
P o w e l l v. R e p u b l i c N a t ' l
L i f e I n s . Co.,
293 A l a .
101,
102,
300
So. 2d 359,
360
( 1 9 7 4 ) .
APPEAL DISMISSED.
Cobb, C . J . , and W o o d a l l ,
S m i t h , P a r k e r , and Shaw, J J . ,
c o n c u r .
7 | December 11, 2009 |
ea6aa111-0db3-40ad-ab59-d744878b0341 | Joe Hudson Collision Center, Joe Hudson and Traweek Dickson v. Blake Dymond | N/A | 1060809 | Alabama | Alabama Supreme Court | Rel: 12/30/2009
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649)), of any typographical or other errors, in
order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
____________________
1060809
____________________
Joe Hudson Collision Center, Joe Hudson, and Traweek Dickson
v.
Blake Dymond
____________________
1060856
____________________
Kenneth Stringfellow
v.
Blake Dymond
Appeals from Montgomery Circuit Court
(CV-06-2109)
1060809, 1060856
2
PARKER, Justice.
These two appeals are from the denial of two motions to
compel the arbitration of claims asserted in a single
complaint in the Montgomery Circuit Court. The appeals have
been consolidated for the purpose of writing one opinion.
Background
Blake Dymond was hired by Joe Hudson Collision Center
("JHCC") as a painter's helper, and within days he was moved
to the position of painter. He participated with two other
painters in a plan under which each painter would receive one-
third pay for all hours worked by the three painters, but when
Dymond returned from a two-day leave, the compensation method
had been modified so that each painter was paid a commission
for each job he completed. Dymond allegedly spoke to Kenneth
Stringfellow, his immediate supervisor, to complain that the
new payment method was unfair to him and that he was not being
assigned jobs. Stringfellow responded that Dymond worked more
slowly than the others and that the earlier compensation
method unfairly penalized the other two painters. Dymond
alleges that on or about August 6, 2004, Stringfellow
assaulted him when he attempted to bring the matter to the
1060809, 1060856
In the complaint and in places in the record Dickson is
1
referred to as "Dixon."
The document bears a date of "5/24/05," but Dickson has
2
provided his sworn affidavit stating that it was executed on
the day Dymond began work at JHCC, May 24, 2004.
3
attention of Stringfellow's supervisor.
On August 4, 2006, Dymond filed an action in the
Montgomery Circuit Court, naming as defendants Stringfellow,
in his individual capacity; JHCC; Joe Hudson, as an owner and
operator of JHCC; Traweek Dickson, as an owner and operator
1
of JHCC; and fictitiously named defendants. He claimed that
Stringfellow committed an assault and battery against him;
that JHCC, Hudson, and Dickson ("the JHCC appellants") were
vicariously liable under the theory of respondeat superior and
were negligent and/or wanton in their hiring, training, and
supervision of Stringfellow; and that all defendants were
guilty of the tort of outrage.
Stringfellow and the JHCC appellants each filed a motion
to compel arbitration under an agreement that was part of an
"employment-dispute-resolution program," which Dymond and
Dickson signed on May 24, 2004 ("the agreement"). In their
2
motion, the JHCC appellants averred that "[b]y executing the
[agreement], ... Dymond agreed to participate in a dispute-
1060809, 1060856
4
resolution program which compels that all disputes involving
matters directly or indirectly related to his employment ...
be resolved through binding arbitration pursuant to the
American Arbitration Association 'National Rules for the
Resolution of Employment Disputes.'" The agreement reads, in
pertinent part, as follows:
"A. INTRODUCTION
"Please
take
time
to
read
the
following
material. IT APPLIES TO YOU. It will govern all
future legal disputes between you and [JHCC]. ...
"Effective July 15, 2003, all employee disputes
will be referred for resolution through the JHCC
Dispute Resolution Program (the 'Program'). ...
"This Program is binding on all employees. ...
Except as expressly provided below, this Program
precludes an employee and JHCC from going to court
to have disputes heard by a judge or a jury.
"....
"B. SCOPE OF PROGRAM
"This [Program] covers all matters directly or
indirectly related to your ... employment including,
but not limited to, claims involving discrimination,
harassment, or retaliation, whether brought under
federal, state, of local laws. Except as provided in
the following paragraph neither the employee nor
JHCC may initiate or prosecute any lawsuit or action
in any way related to any dispute covered by this
Program.
"Excluded ... are employees claims for workers'
1060809, 1060856
5
compensation
benefits
(except
that
retaliation
claims
must
be
arbitrated)
or
unemployment
compensation. Also excluded ... are claims by JHCC
for injunctions or other types of injunctive relief
for unfair competition [and for the protection of
trade
secrets,
confidential
information,
and
restrictive covenants]. Moreover, nothing contained
[herein shall be construed as] prohibiting an
employee or JHCC from filing an administrative
charge of discrimination or an unfair labor practice
charge, or from reporting alleged violations of the
law to the Equal Employment Opportunity Commission,
the National Labor Relations Board, or any other
governmental agency acting pursuant to federal or
state law.
"Arbitration under this Program may be used to
resolve only those disputes that would constitute a
legal cause of action in a court of law. This
Program is intended to substitute final and binding
arbitration for going to court. ... Arbitration must
be initiated within the applicable statute of
limitation.
"....
"D. THE ARBITRATION PROCEDURE
"Unless otherwise agreed by the parties, any
arbitration
under
this
Program
shall
be
in
accordance
with
the
[American
Arbitration
Association's] National Rules for the Resolution of
Employment Disputes .... The Arbitrator, and not any
federal, state, or local court or agency, shall have
exclusive authority to resolve any dispute relating
to
the
interpretation,
applicability,
enforceability, formation, or scope of this Program,
including but not limited to any claim that all or
any part of this Program is void or voidable.
"....
1060809, 1060856
6
"F. JUDICIAL REVIEW
"Either party may bring an action in any proper
court to require arbitration ... and to enforce an
arbitration award. A party opposing enforcement of
an award may not do so in an enforcement proceeding
but must bring a separate action in any court of
competent jurisdiction to set aside the award where
the scope of review will be that established by the
Federal Arbitration Act.
"G. GENERAL
"1.
Interstate Commerce. By ... becoming or
remaining employed with JHCC, you agree that JHCC
engages
in
transactions
involving
interstate
commerce and that your employment involves such
commerce.
"2.
Requirements
for
Modification
or
Revocation.
This
Program
shall
survive
the
termination of employment and shall apply to all
disputes whether they arise or are asserted before,
during, or after termination of employment with
JHCC.
"3.
Severability. If any portion or provision
of
this
Program
is
found
to
be
invalid
or
unenforceable in any respect, the remainder of the
Program will remain in full force and effect."
(Capitalization in original.)
In their brief on appeal the JHCC appellants present
Dickson's affidavit, in which he stated, in support of the
motion to compel arbitration, that the business of JHCC both
involves, and has a significant nexus with, interstate
commerce. Also, as quoted above, section G of the agreement
1060809, 1060856
7
states that Dymond's employment involves interstate commerce.
Stringfellow quoted in his motion to compel arbitration that
part of the agreement that says that the agreement "'covers
all matters directly or indirectly related to [the employee's]
recruitment, employment, terms and conditions of employment,
including,
but
not
limited
to,
claims
involving
...
harassment.'"
Dymond filed an objection on October 19, 2006, to the
JHCC appellants' motion to compel arbitration, arguing that
his employment at JHCC did not involve interstate commerce,
that he was rushed when he signed the agreement and did not
understand the implications of the agreement, which were not
explained to him, and that he was told that he would not be
paid until he signed the agreement.
In his motion to compel arbitration, Stringfellow adopted
the motion of the JHCC appellants. He also asserted in the
motion, as he does in his brief on appeal, that although he
was not a signatory to the agreement, he is a third-party
beneficiary of the agreement. Stringfellow also asserts in his
motion and appellate brief that, because the claims against
him are so closely related to the claims against the JHCC
1060809, 1060856
The trial court also heard argument on a motion by Alfa
3
Mutual Insurance Company to intervene in the case. Alfa sought
a judgment declaring its liability to cover Stringfellow under
his homeowner's liability policy for the claims asserted
against him by Dymond. Alfa's action, however, has no bearing
on the issue before this Court, i.e., whether the motions to
compel arbitration should have been granted.
8
appellants, Dymond is equitably estopped from denying the
arbitrability of the claims against him. Because we find, as
discussed below, that Stringfellow may compel arbitration of
the claims against him, we do not reach these assertions.
The trial court held a hearing on January 23, 2007, at
which
the
arguments
regarding
the
motions
to
compel
arbitration were presented. The trial court determined that
3
the agreement did not require arbitration of the dispute. The
order of the trial court denying both motions to compel
arbitration reads:
"This matter came before the Court on January
23, 2007 for a hearing on Motions to Stay/Compel
Arbitration filed by Defendants Joe Hudson Collision
Center, Joe Hudson, [Traweek Dickson], and Kenneth
Stringfellow. Upon consideration of these motions,
this Court is of the opinion that said motions are
due to be DENIED.
"Therefore, it is hereby ORDERED that the
Motions to Stay/Compel Arbitration filed by all
defendants are DENIED, which order is a FINAL order
of this Court on the issue.
"DONE and ORDERED this 26th day of Jan, 2007."
1060809, 1060856
9
(Capitalization
in
original.) The JHCC appellants
and
Stringfellow appeal. Dymond did not file an appellee's brief.
Issues Presented on Appeal
The JHCC appellants present three issues for resolution
by this Court. The JHCC appellants allege that the trial court
erred when it denied their motion to compel arbitration on the
basis that the agreement did not encompass the disputes here.
The JHCC appellants next contend that Dymond offered
insufficient evidence that the agreement is invalid or
inapplicable, because, they say, Dymond failed of meet his
burden under Polaris Sales, Inc. v. Heritage Imports, Inc.,
879 So. 2d 1129 (Ala. 2003), requiring the party opposing
arbitration
to
present
evidence
indicating
that
the
arbitration agreement was either invalid or inapplicable to
the dispute in question. Finally, they also argued that, by
incorporating
the
rules
of
the
American
Arbitration
Association ("the AAA") into the agreement, the JHCC
appellants and Dymond agreed that the issue of arbitrability
of disputes would be decided by an arbitrator.
Stringfellow presents one issue on appeal:
"Whether the trial court committed reversible error
in
denying
Stringfellow's
Motion
to
Compel
1060809, 1060856
10
Arbitration where the arbitration agreement at issue
encompasses 'all matters directly or indirectly
related' to [Dymond's] employment, and [Dymond's]
claims arose out of a dispute with his former
manager regarding compensation."
Stringfellow's brief, at 4.
Standard of Review
"[T]he review applied to a trial court's ruling on
a motion to compel arbitration at the instance of
either party is a de novo determination of whether
the trial judge erred on a factual or legal issue to
the substantial prejudice of the party seeking
review. Ex parte Roberson, 749 So. 2d 441 (Ala.
1999)."
Brown v. Dewitt, Inc., 808 So. 2d 11, 13 (Ala. 2001).
"Initially, the party seeking to compel arbitration
has the burden of proving the existence of a
contract calling for arbitration and proving that
that contract evidences a transaction involving
interstate commerce. Polaris Sales, Inc. v. Heritage
Imports, Inc., 879 So. 2d 1129, 1132 (Ala. 2003).
The moving party 'must "'produce some evidence which
tends to establish its claim.'"' Wolff Motor Co. v.
White, 869 So. 2d 1129, 1131 (Ala. 2003)(quoting Jim
Burke Auto., Inc. v. Beavers, 674 So. 2d 1260, 1265
(Ala. 1995), quoting in turn In re American Freight
Sys., Inc., 164 B.R. 341, 345 (D. Kan. 1994)). Once
the moving party has properly supported his or her
motion to compel arbitration, the burden then shifts
to the nonmovant to present evidence tending to show
that the arbitration agreement is invalid or
inapplicable to the case. Polaris Sales, 879 So. 2d
at 1132."
Edwards v. Costner, 979 So. 2d 757, 761 (Ala. 2007).
Furthermore,
"[t]he
[Federal]
Arbitration
Act
establishes
1060809, 1060856
11
that, as a matter of federal law, any doubts concerning the
scope of arbitrable issues should be resolved in favor of
arbitration ...." Moses H. Cone Mem'l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24-25 (1983).
Analysis
Case No. 1060809 -- The JHCC Appellants
The JHCC appellants contend that the trial court erred
when it denied their motion to compel arbitration on the basis
that the agreement did not encompass this dispute. The JHCC
appellants argue that by incorporating the AAA rules into the
agreement, the parties agreed that the issue of arbitrability
of any dispute would be decided by an arbitrator. We agree.
Section D of the agreement incorporates the AAA National
Rules for the Resolution of Employment Disputes. Rule 8(a) of
the AAA National Rules provides that the arbitrator "shall
have the power to rule on his or her own jurisdiction,
including any objections, with respect to the existence,
scope, or validity of the arbitration agreement." JHCC
appellants' brief, at 27. "[A]n arbitration provision that
incorporates rules that provide for the arbitrator to decide
issues of arbitrability clearly and unmistakably evidences the
1060809, 1060856
12
parties' intent to arbitrate the scope of the arbitration
provision. CitiFinancial Corp., L.L.C. v. Peoples, [973 So. 2d
332, 340, (Ala. 2007)]." JHCC appellants' brief, at 27.
Moreover, there are two provisions in the agreement,
which Dymond signed, that defined the authority of the
arbitrator and the scope of the agreement. The agreement, in
section D, specifically states that the "Arbitrator, and not
any federal, state, or local court or agency, shall have
exclusive authority to resolve any dispute relating to the ...
applicability, or scope of this Program ...." In section B,
the parties agreed that the agreement "covers all matters
directly of indirectly related to [the] ... employment,
including ... claims involving discrimination, harassment, or
retaliation."
In response to Dymond's claim that his employment at JHCC
did not involve interstate commerce, the JHCC appellants cite
Wolff Motor Co. v. White, 869 So. 2d 1129 (Ala. 2003), for the
proposition that "'[t]he automobile, if anything, is the
paradigm of modern interstate commercial activity ... [and
that] "cars themselves are instrumentalities of commerce,"'"
such that JHCC's operation of "numerous businesses within
1060809, 1060856
13
Alabama and an additional location in the state of Florida,"
all of which receive parts and equipment in interstate
commerce, indicates, "without question that the business of
[JHCC] and the plaintiff's employment at one of the locations
...
affected
interstate commerce" and "the employment
relationship and all legal disputes arising therefrom" are
governed by the agreement. JHCC appellants' brief, at 21-22.
In addition, Dickson, as president of JHCC, submitted his
affidavit to the trial court stating that the "business of
[JHCC] involves and affects interstate commerce and has a
significant nexus with interstate commerce in its day-to-day
operations." We agree that JHCC is engaged in interstate
commerce, that Dymond's employment there involves interstate
commerce, and that the agreement applies to Dymond.
The JHCC appellants respond to Dymond's claim that the
agreement was never explained to him, stating that although
Dymond's allegation is totally unsupported by any evidence,
"[t]he law is well settled that:
"'A party to a contract is responsible for
reading the contract. See Ex parte Perry,
744 So. 2d 859, 863 (Ala. 1999) (opinion of
three Justices). "[W]hen a competent adult,
having the ability to read and understand
an instrument, signs a contract, he will be
1060809, 1060856
14
held to be on notice of all the provisions
contained in that contract, including an
arbitration provision, and will be bound
thereby." First Family Fin. Servs., Inc. v.
Rogers, 736 So. 2d 553, 558 (Ala. 1999).'
"Advance Tank and Construction Company, Inc. v. Gulf
Coast Asphalt Company, L.L.C., [968 So. 2d 520, 528
(Ala. 2006).]"
JHCC appellants' brief, at 22. Thus, it is immaterial whether
the agreement was explained to Dymond. As a competent and
literate adult, he is responsible for the contracts that he
makes. Advance Tank & Constr. Co. v. Gulf Coast Asphalt Co.,
968 So. 2d 520 (Ala. 2006).
This Court recently reiterated its recognition of the
strong federal policy favoring arbitration.
"The United States Supreme Court recognizes a
strong federal policy favoring arbitration:
"'The
[Federal]
Arbitration
Act
establishes
that, as a matter of federal law, any
doubts concerning the scope of arbitrable
issues should be resolved in favor of
arbitration, whether the problem at hand is
the construction of the contract language
itself or an allegation of waiver, delay,
or a like defense to arbitrability.'
"Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765
(1983) (footnote omitted)."
Ex parte Johnson, 993 So. 2d 875, 885 (Ala. 2008). Because
1060809, 1060856
15
the agreement, which was mutually executed, unambiguously
stated that the arbitrator, and not any court or agency, would
have exclusive authority to resolve any dispute concerning the
applicability and scope of the agreement, the trial court
erred when it denied the JHCC appellants' motion to compel
arbitration. Accordingly, the judgment of the trial court
denying the JHCC appellants' motion to compel arbitration is
reversed.
Case No. 1060856 -- Stringfellow
Stringfellow, a nonsignatory to the agreement he seeks to
enforce, argues that the claims against him are so closely
related with those asserted against the JHCC appellants that
Dymond is equitably estopped from denying the arbitrability of
the claims against him. Moreover, Stringfellow argues that he
is a third-party beneficiary of the agreement and that he is
entitled to the benefit of the agreement. We need not reach
Stringfellow's assertions, however, because he is entitled to
compel Dymond to arbitrate his claims against Stringfellow.
In count 5 of his complaint, Dymond stated that "at the
time of the incident ... Stringfellow was acting in the line
and scope of his employment. He was acting in the capacity of
1060809, 1060856
16
assistant manager [in the service] of the 'Center,' Hudson and
[Dickson]." The claims filed against the other defendants are
intimately founded in the same incident. In his objection to
the motions to compel arbitration, Dymond did not challenge
Stringfellow's standing to seek arbitration.
As this Court has previously stated: "[An] employee[] of
a signatory to the contract[] ha[s] standing to enforce the
arbitration provision." Ex parte Rush, 730 So. 2d 1175, 1177
n.2 (Ala. 1998). Because Stringfellow has standing to compel
arbitration,
the
order
of
the
trial
court
denying
Stringfellow's motion to compel arbitration is in error and
must be reversed.
Conclusion
Case No. 1060809 -- The JHCC Appellants
The determination of the arbitrability of this dispute is
a question reserved for an arbitrator under the agreement.
Thus, the ruling of the trial court was in error. Therefore,
we reverse the judgment of the trial court, and we remand the
case with directions to grant the motion of the JHCC
appellants to stay the proceedings in the trial court and to
compel arbitration.
1060809, 1060856
17
Case No. 1060856 -- Stringfellow
As an employee of JHCC, Stringfellow is entitled to
compel
Dymond
to
arbitrate
the
claims
against
him.
Accordingly, we reverse the judgment of the trial court, and
we remand the case with directions to grant the motion to stay
the proceedings in the trial court and to compel arbitration.
1060809 –- REVERSED AND REMANDED WITH DIRECTIONS.
1060856 –- REVERSED AND REMANDED WITH DIRECTIONS.
Stuart, Smith, Bolin, and Shaw, JJ., concur.
Cobb, C.J., and Lyons and Woodall, JJ., concur specially.
1060809, 1060856
18
WOODALL, Justice (concurring specially).
I concur in the main opinion, but I write to clarify that
Kenneth Stringfellow, in both the trial court and this Court,
has adequately argued that Ex parte Rush, 730 So. 2d 1175
(Ala. 1998), supports his claim that his status as an employee
of Joe Hudson Collision Center allows him to enforce the
arbitration agreement. As noted in the main opinion, Dymond's
objections to the motions to compel arbitration did not
include any challenge to Stringfellow's standing to enforce
the arbitration agreement, and Dymond has filed no brief in
this Court. Therefore, I question whether it is necessary for
this Court to address the issue of Stringfellow's standing to
enforce that agreement. However, I certainly agree that,
under the facts of this case, he had standing to do so.
Cobb, C.J., and Lyons, J., concur. | December 30, 2009 |
a1db0812-3aa3-4bfc-9219-b1644fc6f8db | Battle v. Morris | 93 So. 2d 428 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 428 (1957)
Enoch BATTLE
v.
Radford MORRIS.
5 Div. 639.
Supreme Court of Alabama.
January 10, 1957.
Rehearing Denied March 7, 1957.
*430 Rushton, Stakely & Johnston, Montgomery, and Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
Walker & Walker, Opelika, and W. C. Hare, Tuskegee, for appellee.
STAKELY, Justice.
Radford Morris (appellee) filed a bill in the Circuit Court of Macon County, in Equity, to set aside a consent judgment for $3,000, which had been rendered in his favor against Enoch Battle (appellant) on the law side of the Circuit Court of Macon County.
The bill alleges in substance that Radford Morris suffered injury and damages as a proximate consequence of the negligence of Enoch Battle and one Lewis Thomas, who was not made a party to the cause; that Radford Morris filed suit against Enoch Battle in the Circuit Court of Macon County on December 21, 1953; that through his attorney he negotiated a settlement with Enoch Battle for $3,000 and executed a release therefor and that later on April 2, 1954, a consent judgment was rendered in his favor for $3,000 by the Circuit Court of Macon County against Enoch Battle, which was marked satisfied on the same day by his attorney.
The bill further alleges that on March 5, 1954, he filed another suit through another attorney against Lewis Thomas in which he claimed damages for the same injury which had been the basis of his claim and suit against Enoch Battle and that Lewis Thomas planned to plead the consent judgment to which we have referred as defense to the suit for damages which he had filed against Lewis Thomas.
Radford Morris prayed that the court review and vacate the consent judgment rendered in his favor against Enoch Battle and that a judgment be ordered in conformity with the agreement of the parties in that suit and fully protecting Radford Morris in his right to proceed with his claim and suit against Lewis Thomas, so that the consent judgment would not be a bar or a defense thereto.
In the case at bar the Circuit Court of Macon County, in Equity, entered a decree on September 23, 1955, setting aside and vacating the personal judgment to which we have referred. The present appeal is from this decree.
On July 26, 1955, Radford Morris (appellee) filed an affidavit in the instant case in which he alleged that Enoch Battle was a nonresident of the State of Alabama and that his present place of residence and post office address were unknown and could not be ascertained after diligent inquiry and that service on Enoch Battle by publication was necessary. The result was that on September 20, 1955, a decree pro confesso was entered. The testimony of Radford Morris and his attorney were *431 taken and thereupon the final decree of September 23, 1955, to which we have referred, was rendered by the court.
A brief statement of the salient allegations of the bill is necessary for an understanding of the case. It is alleged in the bill and claimed by Radford Morris that when the settlement of $3,000 with Enoch Battle was negotiated he and his attorney understood that this was only a partial settlement for the damages sustained by him and that all rights to claim damages against Lewis Thomas were expressly retained. Pursuant to this agreement Radford Morris executed the release to which we have referred, which expressly provided that the release from Enoch Battle was for all claims and damages "that I may have against Enoch Battle." The release further contained the following provision: "This release applies only to Enoch Battle and to no one else." It was further shown that the facts and circumstances relating to the two pending suits were explained to the trial judge who entered the following bench note: "4-2-54. Judgment by consent for plaintiff and against the defendant, Enoch Battle, only for $3,000.00."
The allegations of the bill further showed that the clerk of the court in entering the judgment mistakenly entered in the minutes of the court a judgment against Enoch Battle for $3,000 without restriction for reservation and that such judgment was entered without the consent of Radford Morris and without reference to the agreement of settlement between the parties.
The appellee makes a number of contentions in support of the present decree of the circuit court, in equity. Reference is made to Equity Rule 63, Code 1940, Tit. 7, Appendix. It is sufficient to say that Equity Rule 63 provides for correction of clerical mistakes in equity decrees which obviously does not apply to the present situation because if there was any mistake it was a mistake in a judgment of law and not a mistake in an equity decree.
Reference is also made to § 567, Title 7, Code of 1940, where the circuit court as a law court is authorized to "amend any clerical error * * * or other mistake of the clerk or register." The origin, object and the purpose of this statute is referred to in Ingram v. Alabama Power Co., 201 Ala. 13, 75 So. 304. Again, it is sufficient to say that § 567 authorizes a law court to amend any clerical error or mistake of the clerk or register in the entry of the judgment. We are not interested, however, in the case at bar in the power to amend the original consent judgment. The court has undertaken to set aside and vacate this consent decree and § 567 is clearly not applicable to such a situation.
As stated the service of the bill in the instant case was had on Enoch Battle only by publication, Accordingly, it is earnestly contended that since an action to set aside a personal judgment in a court of equity is an in personam proceeding, the court has no jurisdiction to enter its decree vacating and annulling the judgment in the absence of personal service on Enoch Battle.
We do not agree that the rule here referred to has application in the present instance. The proceeding here instituted in the equity court is in the nature of a proceeding in rem against the consent judgment, which is sought to be annulled, and while Enoch Battle against whom the consent judgment is rendered, is not within the reach of personal service of process, the consent judgment was rendered by an Alabama Court, the Circuit Court of Macon County. The record of the judgment is the res before the court in the present suit and since the court has jurisdiction of the res, notice of the suit may be given the nonresident defendant by publication, personal service not being required.Britton v. Bryson, 216 Cal. 362, 14 P.2d 502; Everett v. Everett, 22 App.Div. 473, 47 N.Y.S. 994; Reybine v. Kruse, 128 Fla. 278, 174 So. 720; Parker v. Board of Com'rs of Okmulgee, *432 187 Okl. 308, 102 P.2d 880; 72 C.J.S., Process, § 57, p. 1075.
Accordingly, we may summarize the situation to the present point as showing that the bill filed by Radford Morris to annul and vacate the judgment against Enoch Battle is a proper procedure, but of course the bill in its allegations must contain equity. It will be recalled that the allegations of the bill were taken as confessed in a decree pro confesso and a final decree entered on the basis of the decree pro confesso. To sustain a decree pro confesso, no essential fact may be supplied by intendment and where in a bill which is taken as confessed and to which no defense is made in the equity court, the averments of the bill must be sufficient on which to authorize the relief prayed for, and if the bill is not so sufficient, the decree will be reversed on appeal. National Building & Loan Ass'n v. Ballard, 126 Ala. 155, 27 So. 971.
We therefore, have come to the point where we must analyze the allegations of the bill to see if it will sustain the decree of the court setting aside the consent decree.
A court of equity has undoubted jurisdiction to set aside and enjoin the enforcement of a judgment at law procured through fraud, accident or mistake when the claiming party has a meritorious defense to the action and was without negligence himself in permitting the rendition of the judgment. Hanover Fire Ins. Co. v. Street, 228 Ala. 677, 154 So. 816. It is difficult for us at the outset to see where any mistake was made in the writing of the judgment by the clerk of the court. It is true that it was explained to the trial judge that the rights of the plaintiff to proceed further against Lewis Thomas were to be retained and an effort is made to show that the trial judge intended to carry out such an understanding because of the bench note to which we have referred. All we can say is that an unqualified judgment was entered on the minutes of the court without any statement that the judgment represented a pro tanto settlement and that rights against Lewis Thomas were expressly retained. The statement that the judgment was entered "only" against Enoch Battle, adds nothing to the situation, since Enoch Battle was the only defendant in the case and the judgment could be only against Enoch Battle.
In fact in the absence of a statute providing otherwise, damages against jointtortfeasors are not apportioned. Joint tortfeasors are jointly and severally liable for the entire damage sustained. 49 C.J.S., Judgments, § 36, p. 88; 86 C.J.S., Torts, § 34, p. 949; Bell v. Riley Bus Lines, 257 Ala. 120, 57 So. 2d 612; City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276; City of Birmingham v. Hawkins, 196 Ala. 127, 72 So. 25. In other words we do not see how the court could have entered a judgment for a proportionate part of the damages against Enoch Battle with a retention of rights against Lewis Thomas. The recovery of a judgment against one and its satisfaction is a satisfaction of the entire claim, and the judgment cannot be so expressed as to have a different meaning. McCoy v. Louisville & N. R. Co., 146 Ala. 333, 40 So. 106; Steenhuis v. Holland, 217 Ala. 105, 115 So. 2. What we have said must not be confused with the right of Radford Morris to give a pro tanto release to Enoch Battle with a retention of the right to sue and hold Lewis Thomas liable for a proportionate part of the total amount of the damages sustained without a judgment against him. Steenhuis v. Holland, supra; Home Telephone Co. v. Fields, 150 Ala. 306, 43 So. 711. By statute all releases must be given effect according to the intention of the parties. Steenhuis v. Holland, supra; § 381, Title 7, Code of 1940. The effect given by statute to a release has nothing to do with the apportionment of damages by judgment, when there are joint tortfeasors.
We think it well to quote the allegations from the bill which are evidently intended to show fraud or misrepresentation in the procurement of the judgment. These allegations are as follows:
Upon a careful consideration we do not consider that the allegations show a fraud on the court or that complainant was free from negligence in that respect, nor why he did not apply to the court which rendered the judgment within thirty days thereafter. Hendley v. Chabert, 189 Ala. 258, 65 So. 993; Craft v. Hirsh, 227 Ala. 257, 149 So. 683; § 119, Title 13, Code of 1940. The bill does not allege that complainant's counsel or the trial judge was ignorant of the law as represented and that defendant's representative knew of such ignorance and mislead them by making an intentional false statement of the law. Davis v. Betz, 66 Ala. 206; Lehman, Durr & Co. v. Shackleford, 50 Ala. 437; Corley v. Vizard, 203 Ala. 564, 84 So. 299; Bank of Loretto v. Bobo, 37 Ala.App. 139, 67 So. 2d 77, certiorari denied 259 Ala. 374, 67 So. 2d 90. Another fatal insufficiency is that the bill does not allege that the person undertaking to represent defendant was acting in the line and scope of his authority. At the most the bill shows that there was a misstatement to the court that a judgment could be entered for a pro tanto recovery with the reservation to recover the balance, if any, from Lewis Thomas. But this is no more than a mistake against which equity will not relieve for the mistake, if any, was a mistake of law. Best v. Best, 247 Ala. 627, 25 So. 2d 723; Lehman, Durr & Co. v. Shackleford, 50 Ala. 437; Hemphill v. Moody, 64 Ala. 468.
There is no equity in the bill and the trial court without equity in the bill should not set the judgment aside.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.
On application for rehearing the appellee calls our attention to the fact that in writing the opinion on the original hearing we entirely overlooked what he regards as the strongest allegation in the bill and which we set out as follows:
In other words, we treated the alternative allegations in the bill of mistake and fraud but did not deal with the allegation showing absence of consent on the part of Enoch Battle for a judgment to be entered in his behalf. Attention is called to the fact, however, that in describing the allegations of the bill in the original opinion we stated:
*434 We say now, however, that the allegation of nonconsent makes no change in the result of the case. It is our understanding that the judgment was rendered on April 2, 1954. By its very terms it shows that it was a judgment by consent in favor of the plaintiff for $3,000. The bill in this case to set aside the consent judgment, as we understand the record, was filed on the 26th day of July, 1955.
It will be observed that the bill was not filed within the thirty days from the date of the judgment when the court rendering the judgment had jurisdiction over the judgment but was filed about eighteen months after the date of the judgment. It further affirmatively appears from the allegations of the bill that appellee cannot say that he did not have notice or knowledge because the allegations of the bill show that the attorney for Enoch Battle marked the judgment satisfied on the day it was rendered.
We quite understand that a consent judgment may be set aside in the equity court where there is actual absence of consent just as well as it can be set aside for mistake or for fraud, but the principles upon which the equity court can set the judgment aside in any of these instances are the same. Adler v. Van Kirk Land & Const. Co., 114 Ala. 551, 21 So. 490. In Hendley v. Chabert, 189 Ala. 258, 65 So. 993, cited in the original opinion, it is shown that a proper and due regard for the peace and interests of society requires strictness and caution in exercising the power to disturb the decrees and judgments of other courts of competent or concurrent jurisdiction and in reopening controversies which it is the policy of the law to quiet. It is shown that in order to invoke successfully the interposition, in this case of a court of equity, it is not sufficient that wrong has been done, but it must be manifest that the wrong occurred without fault or negligence on the part of the party complaining. A concurrence of injustice committed and freedom from fault and negligence, is an indispensable condition to the exercise of this jurisdiction. And it is expressly held that an exercise of due diligence required that application be made to the law court for relief during the term at which the judgment was rendered (now for a period of thirty days from the date the judgment was rendered) or if not, that the bill disclose a valid reason for the omission.
There is nothing in the present bill which shows that the complainant could not have asked the court which rendered the judgment to set aside the judgment within thirty days from the time it was rendered, nor is there any allegation in the bill to excuse a failure to do so. This is a fatal defect in the bill and is just as much a defect as though the ground upon which the judgment is sought to be set aside is either mistake or fraud. Lucy v. Hall, 264 Ala. 273, 87 So. 2d 32.
In the original opinion it was shown that joint tort-feasors are jointly and severally liable for the entire damage sustained. And in the absence of statute providing otherwise, damages against joint tort-feasors may not be apportioned. Bell v. Riley Bus Lines, 257 Ala. 120, 57 So. 2d 612; Layman v. Hendrix, 1 Ala. 212; Slade v. Street, 77 Ala. 576; 49 C.J.S., Judgments, § 36, p. 88; 86 C.J.S., Torts, § 34, p. 949. But the question may be asked as to why the damages in the instant case may not be apportioned in a judgment by consent. We call attention to the authorities collected in 135 A.L.R. p. 1498 et seq. So far as the case before us is concerned, it is sufficient to say that Lewis Thomas is not a party and there is nothing to show that Lewis Thomas, who is a joint tort-feasor, has consented to an apportionment of the damages.
The application for rehearing must be overruled.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | January 10, 1957 |
b3b7ec05-c631-4569-9102-2c6635abbcb1 | Ex parte Gary Cowley. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Gary Cowley v. City of Trussville) | N/A | 1071709 | Alabama | Alabama Supreme Court | REL:11/25/2009
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
_________________________
1071709
_________________________
Ex parte Gary Cowley
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Gary Cowley
v.
City of Trussville)
(Trussville Municipal Court, TR-06-2937;
Court of Criminal Appeals, CR-07-0099)
COBB, Chief Justice.
1071709
2
On February 20, 2009, this Court granted Gary Cowley's
petition for a writ of certiorari to review the Court of
Criminal Appeals' dismissal of his appeal. Cowley was
convicted,
pursuant
to
Trussville
municipal
ordinance
no.
236,
on September 4, 2007, in the Trussville Municipal Court of
driving under the influence, a violation of Ala. Code 1975, §
32-5A-191(a)(3). He was sentenced to 30 days in jail and
fined. On September 18, 2007, pursuant to Rule 20.3, Ala. R.
Crim. P., Cowley filed a postjudgment motion seeking to vacate
his conviction, which the municipal court denied that same
day. On October 5, 2007, Cowley filed a notice of appeal to
the Court of Criminal Appeals.
The Court of Criminal Appeals dismissed Cowley's appeal
with an order. Cowley v. City of Trussville (No. CR-07-0099,
August 12, 2008), ___ So. 3d ___ (Ala. Crim. App.
2008)(table). In pertinent part, that order states:
"We have reviewed the record and find that
Cowley failed to comply with Rule 30.2, Ala. R.
Crim. P., in appealing to this Court. That rule
provides:
"'An appeal from the district or
municipal court shall go directly to the
appropriate appellate court:
1071709
3
"'(1)
If
an
adequate
record
or
stipulation of fact is available and the
right to a jury trial is waived by all
parties entitled to trial by jury, or
"'(2) If the parties stipulate that
only questions of law are involved and the
district court or the municipal court
certifies the question.'
"Cowley's appeal in this case is pursuant to
subsection (1) of Rule 30.2, and there is an
adequate record for review; a transcript of the
municipal court trial is contained in the record on
appeal. However, the record does not contain a
waiver of Cowley's right to a jury trial. It is well
settled that 'the waiver of the right to a jury
trial must "'be made a part of the record on
appeal.'"' Christ v. State, 771 So. 2d 507, 508
(Ala. Crim. App. 2000), quoting Ex parte Lord, 667
So. 2d 164, 166 (Ala. Crim. App. 1995), quoting in
turn, B.T.D. v. T.L.C.H., 585 So. 2d 96, 97 (Ala.
Civ. App. 1991). Because Cowley failed to comply
with Rule 30.2(1) in appealing to this Court, we
have no choice but to dismiss this appeal. We note
that this Court cannot transfer this case to the
circuit court for a trial de novo because Cowley's
notice of appeal was filed 17 days after his
postjudgment motion was denied, and Rule 30.1(a) and
Rule 30.3(a), Ala. R. Crim. P., require that a
notice of appeal from a district or municipal court
to the circuit court for a trial de novo be filed
within 14 days of the pronouncement of sentence or
the denial of a postjudgment motion, whichever is
later.
"Accordingly, the Court of Criminal Appeals
ORDERS that this appeal is due to be, and is hereby,
DISMISSED."
(Capitalization in original.)
1071709
Rule 30.1(a) provides:
1
"A defendant convicted of an offense in a municipal
4
We granted Cowley's petition to consider whether his
action in permitting the period for seeking a trial de novo in
the circuit court to expire was a sufficient waiver of his
right to a jury trial to perfect his appeal directly to the
Court of Criminal Appeals. Because the decision of the Court
of Criminal Appeals to dismiss Cowley's appeal presents a
question of law, we review it de novo. Ex parte Key, 890 So.
2d 1056 (Ala. 2003); State v. Hill, 690 So. 2d 1201 (Ala.
1996); and State v. Otwell, 733 So. 2d 950 (Ala. Crim. App.
1999). As noted in the above order, Cowley's appeal is
pursuant to Rule 30.2(1), Ala. R. Crim. P., which states:
"An appeal from the district or municipal court
shall go directly to the appropriate appellate
court:
"(1) If an adequate record or stipulation of
fact is available and the right to a jury trial is
waived by all parties entitled to trial by jury
...."
Cowley's right to seek a jury trial in the circuit court
lapsed 14 days after his postjudgment motion was denied. See
Rules 30.1(a) and 30.3(a), Ala. R. Crim. P. Rule 18.1(b)(2),
1
2
1071709
court or a district court shall have the right to
appeal the judgment, within fourteen (14) days of
the date of the judgment or the denial of a timely
filed post-judgment motion, to the circuit court for
a trial de novo."
Rule 30.3(a) provides:
2
"A defendant may appeal from a final judgment in a
criminal case entered by a municipal or a district
court for trial de novo in the circuit court by
filing with the clerk of the municipal or the
district court a written notice of appeal within
fourteen (14) days from the date of pronouncement of
sentence or the date of denial of a timely filed
posttrial motion, whichever is later."
5
Ala. R. Crim. P., states, in pertinent part: "Failure of a
defendant to make a timely demand for trial by jury shall be
deemed to be a waiver by the defendant of his or her right to
trial by jury."
Therefore, Cowley's failure to timely demand a jury trial
in the circuit court constitutes an effective waiver of his
right to trial by jury. Alabama precedent establishes that
many significant rights may be waived by failing to either
timely or properly assert them. See, e.g., Martin v. Drummond
Co.,
663
So.
2d
937
(Ala.
1995)(failure
to
assert
constitutional rights constitutes a waiver of those rights);
Upshaw v. State, 992 So. 2d 57 (Ala. Crim. App. 2007) (the
right to self-representation is waived by failing to assert it
1071709
6
in a timely manner). Accordingly, we consider whether the fact
that the record shows that Cowley did not seek a jury trial
within the 14-day period provided by Rule 18.1(b)(2)
establishes his waiver of that right on the record for
purposes of Rule 30.2(1). Cowley argues that his action in
not asserting his right to a jury trial pursuant to Rule
30.2(1) is properly viewed as an intentional and affirmative
waiver of that right.
"'Waiver is defined as the voluntary surrender
o
r
relinquishment of some known right, benefit, or
advantage. City of Montgomery v. Weldon, 280 Ala.
463, 195 So. 2d 110 (1967). However, it is well
established that a party's intention to waive a
right is to be ascertained from the external acts
manifesting the waiver. Givens v. General Motors
Acceptance Corp., 56 Ala. App. 561, 324 So. 2d 277
(1975). This intention to waive a right may be found
where one's course of conduct indicates the same or
is inconsistent with any other intention.'"
Stewart v. Bradley, 15 So. 3d 533, 543 (Ala. Civ. App.
2008)(quoting Waters v. Taylor, 527 So. 2d 139, 141 (Ala. Civ.
App. 1988)). In this case, Cowley argues that his conduct in
not seeking a trial de novo in the circuit court shows that he
sought to have his case reviewed directly on appeal by the
Court of Criminal Appeals without seeking a jury trial in the
circuit court.
1071709
7
A determination that the record affirmatively reflects
Cowley's waiver of a jury trial finds strong support in the
proper construction of the applicable rules. Rules 30.1 and
30.2, Ala. R. Crim. P., clearly give a criminal defendant the
option of taking his case either to the circuit court or to
the appropriate court of appeals. We conclude that it is not
appropriate to construe Rule 30.2 so as to require a
particular "type" of waiver, otherwise unspecified in the
rule, with the result of depriving Cowley of his right to
appeal. It is long settled that rules of procedure are
properly construed so as to allow the court to reach the
merits of the issues. See, e.g., Roberson v. Roberson, 232
Ala. 647, 648, 169 So. 292, 294 (1936)("While we cannot
disregard fixed rules for court procedure, they should be so
administered as to promote, rather than hinder, trials on
their merits where this may be done without doing violence to
them.").
More recently, this policy is exemplified in Rule 1.2,
Ala. R. Crim. P., which provides, in pertinent part:
"These rules are intended to provide for the
just and speedy determination of every criminal
proceeding. They shall be construed to secure
simplicity in procedure, fairness in administration,
1071709
8
and the elimination of unnecessary delay and
expense, and to protect the rights of the individual
while preserving the public welfare."
(Emphasis added.)
The respondent, the City of Trussville (hereinafter "the
City"), argues that because Cowley failed to present some
further indicia of his waiver of his right to a jury trial,
other than simply allowing the 14-day period in Rule
18.1(b)(2) for taking an appeal to the circuit court to lapse,
Cowley's appeal was correctly dismissed. In this assertion,
the City relies on four cases, Christ v. State, 771 So. 2d 507
(Ala. Crim. App. 2000), Lucas v. City of Tuscaloosa, 680 So.
2d 1027 (Ala. Crim. App. 1999), Stinson v. State, 741 So. 2d
1111 (Ala. Crim. App. 1999), and B.T.D. v. T.L.C.H., 585 So.
2d 96 (Ala. Civ. App. 1991). In each of these cases, the
litigants filed appeals directly to the court of appeals
within the 14-day period required by Rule 30.1(a) but failed
to accompany those appeals with any indication of a waiver of
a jury trial. That is, in each of these cases, the litigant
attempted to appeal to the court of appeals without making any
affirmative showing that he had waived his right to a jury
trial. This is not Cowley's situation. In this case, the
1071709
Rule 30.2(2) provides: "An appeal from district or
3
municipal court shall go directly to the appropriate appellate
court: ...(2) If the parties stipulate that only questions of
law are involved and the district court or the municipal court
certifies the question."
9
record affirmatively shows that Cowley waived his right to a
jury trial, pursuant to Rule 18.1(b)(2), and by permitting the
lapse of the 14-day period prescribed in Rule 30.1(a) in which
to appeal for a trial de novo in the circuit court, before
seeking his appeal to the Court of Criminal Appeals.
The City also cites five other cases in an attempt to
support its argument that Cowley's failure to comply with Rule
30.2(1) strips the Court of Criminal Appeals of jurisdiction
over the matter. Strickland v. State, 829 So. 2d 786 (Ala.
Crim. App. 2002), Hill v. State, 710 So. 2d 519 (Ala. Crim.
App. 1997), Brooks v. State, 668 So. 2d 897 (Ala. Crim. App.
1995), Speer v. State, 651 So. 2d 1157 ( Ala. Crim. App.
1994), and Parker v. City of Tuscaloosa, 698 So. 2d 1171 (Ala.
Crim. App. 1997). Hill, Brooks, and Speer deal with litigants
whose appeals posed questions of facts and therefore did not
come within Rule 30.2(2). In Strickland and Parker, the
3
defendants did not have court reporters transcribe the
proceedings
and
therefore
failed to satisfy
the requirement of
1071709
10
Rule 30.2(1) that an adequate record be available. None of
these cases has application to this case, where Cowley's
direct appeal to the Court of Criminal Appeals was made after
his waiver of a jury trial pursuant to Rule 18.1(b)(2).
Accordingly, we conclude that Cowley's action in
permitting the 14-day period in Rule 18.1(b)(2) to lapse and
therefore waiving his right to a jury trial was a sufficient
indication on the record to satisfy the waiver requirement of
Rule 30.2(1). The judgment of the Court of Criminal Appeals
is therefore reversed and the cause is remanded for that court
to consider Cowley's appeal.
REVERSED AND REMANDED.
Lyons, Woodall, Smith, Parker, and Murdock, JJ., concur.
Stuart and Bolin, JJ., dissent.
Shaw, J., recuses himself.*
*Justice Shaw was a member of the Court of Criminal
Appeals when that court considered this case. | November 25, 2009 |
e85e6238-af49-4825-9319-701988b1a5a3 | Ex parte Bank of America, N.A., et al. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Charles E. Wilson v. JPMorgan Chase & Company et al.) | N/A | 1080982 | Alabama | Alabama Supreme Court | REL:12/04/2009
Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance
s h e e t s o f Southern Reporter.
R e a d e r s a r e
r e q u e s t e d t o n o t i f y t h e
Reporter of
Decisions,
Alabama
A p p e l l a t e
C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741
((334)
2 2 9 - 0 6 4 9 ) , o f any t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may be made
b e f o r e t h e o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1080982
Ex p a r t e Bank of America, N.A., e t a l .
PETITION FOR WRIT OF MANDAMUS
( I n r e :
C h a r l e s E. Wilson
v.
JPMorgan Chase & Company e t
a l . )
( J e f f e r s o n C i r c u i t Court, CV-08-901907)
SHAW,
J u s t i c e .
Bank
o f A m e r i c a ,
N.A.;
Banc
o f A m e r i c a
I n v e s t m e n t
S e r v i c e s ,
L L C ; J P M o r g a n
C h a s e
&
Company;
J . P . M o r g a n
S e c u r i t i e s ;
B e a r
S t e a r n s
F u n d i n g ,
I n c . ;
RBC Bank
( U S A ) ;
1080982
G a r d n e r - M i c h a e l C a p i t a l ,
I n c . ;
The
Bank o f
New
Y o r k
M e l l o n ;
a n d
P e c k ,
S h a f f e r
& W i l l i a m s ,
LLP
( h e r e i n a f t e r
r e f e r r e d
t o
c o l l e c t i v e l y
as
" t h e
p e t i t i o n e r s " ) ,
a l l d e f e n d a n t s
i n
a
p u t a t i v e
c l a s s
a c t i o n
p e n d i n g
i n
t h e
t r i a l
c o u r t ,
p e t i t i o n
t h i s C o u r t f o r a w r i t
o f mandamus d i r e c t i n g t h e
t r i a l
j u d g e ,
t h e
H o n o r a b l e
A l b e r t
L.
J o h n s o n ,
t o
r e c u s e
h i m s e l f
f r o m
p r e s i d i n g
o v e r t h i s a c t i o n .
We d e n y t h e p e t i t i o n .
The
r e p r e s e n t a t i v e
p l a i n t i f f b e l o w , C h a r l e s E. W i l s o n , i s
a r e s i d e n t
o f J e f f e r s o n C o u n t y .
On J u n e 17, 2008, he
f i l e d
a
c l a s s - a c t i o n c o m p l a i n t i n t h e J e f f e r s o n C i r c u i t C o u r t a l l e g i n g
w r o n g d o i n g
by
v a r i o u s
f i n a n c i a l
i n s t i t u t i o n s ,
g o v e r n m e n t
o f f i c i a l s ,
a n d
o t h e r
p a r t i e s
c o n c e r n i n g
t h e
i s s u a n c e
and
h a n d l i n g
o f
d e b t
r e l a t e d
t o
t h e
s e w e r
s y s t e m
i n
J e f f e r s o n
C o u n t y
( " t h e
s e w e r
s y s t e m " ) .
The
c o m p l a i n t
s o u g h t
c e r t i f i c a t i o n
o f
a
c l a s s
c o n s i s t i n g
o f
a l l
u s e r s
and
r a t e p a y e r s
o f
t h e
s e w e r
s y s t e m .
The
c o m p l a i n t
f u r t h e r
a l l e g e d :
"The
g e n e s i s
o f
t h i s
c i v i l
a c t i o n
c a n
...
be
t r a c e d
t o t h e
s e r i e s o f e v e n t s o v e r t h e
l a s t
e l e v e n
t o
f i f t e e n
y e a r s
where
t h e
J e f f e r s o n
C o u n t y
C o m m i s s i o n e r s ,
v a r i o u s
i n v e s t m e n t
b a n k s ,
i n s u r e r s
and
a d v i s o r s
h a v e c o n t i n u o u s l y
f a i l e d
t o a c t
i n
t h e
b e s t i n t e r e s t s o f t h e
c i t i z e n s o f J e f f e r s o n
C o u n t y .
T h r o u g h
a
l o n g
s e r i e s
o f
i l l - c o n c e i v e d f i n a n c i a l
t r a n s a c t i o n s ,
t h e
s e w e r
r a t e p a y e r s
o f
J e f f e r s o n
2
1080982
C o u n t y
have b e e n
s a d d l e d
w i t h
a
d e b t
o f
r o u g h l y
$ 1 1 , 4 9 1 p e r
r e s i d e n t i a l s e w e r c u s t o m e r , w h i c h i s t h e
h i g h e s t
i n t h e
n a t i o n .
A l s o ,
t h e
s e w e r
r a t e p a y e r s
h a v e s e e n e x p o n e n t i a l g r o w t h ,
an
i n c r e a s e
o f
3 2 9 % ,
i n
t h e i r
s e w e r
r a t e s
i n
t h e
l a s t
e l e v e n
y e a r s - ¬
C h a r l e s
W i l s o n ,
on b e h a l f
o f h i m s e l f
and
a l l o t h e r
s e w e r
r a t e p a y e r s ,
c i t i z e n s
and
r e s i d e n t s
o f
J e f f e r s o n
C o u n t y ,
b r i n g s
t h i s
s u i t
i n
o r d e r
t o
c h a l l e n g e t h e m i s a p p r o p r i a t i o n a n d / o r m i s a p p l i c a t i o n
o f
p u b l i c
f u n d s
b a s e d
upon
h i s
and
h i s
f e l l o w
c i t i z e n s
and
r e s i d e n t s
r e s p e c t i v e
e q u i t a b l e
o w n e r s h i p
i n
s u c h
f u n d s ,
and
t h e i r
l i a b i l i t y
t o
r e p l e n i s h
t h e
p u b l i c
t r e a s u r y
f o r any
d e f i c i e n c y .
F u r t h e r ,
as
t h e
P l a i n t i f f
and
t h e members o f
t h i s
p u r p o r t e d
c l a s s
a l s o
h a v e
a
p e c u n i a r y
i n t e r e s t ,
P l a i n t i f f s
b r i n g
s u i t
t o
r e c o v e r
m o n e t a r y damages
f o r
t h e
l o s s e s
t h e y
have
s u s t a i n e d
due
t o
D e f e n d a n t s '
w r o n g f u l
c o n d u c t
and
d e r e l i c t i o n
o f
d u t i e s , w h i c h has
d i r e c t l y c a u s e d o r c o n t r i b u t e d
t o
t h e
w r o n g f u l
i n c r e a s e s
i n
t h e i r
s e w e r
r a t e s .
F i n a l l y , and i m p o r t a n t l y ,
P l a i n t i f f s w i s h t o
r e c t i f y
t h e d a u n t i n g
and p r e c a r i o u s
f i n a n c i a l p o s i t i o n t h a t
has b e e n t h r u s t upon them by
t h e D e f e n d a n t s i n
t h i s
c a s e and
t o e n s u r e t h a t s e w e r f u n d s do n o t
c o n t i n u e
t o
be
d i v e r t e d f r o m
t h e i r
p u r p o s e
o f
m a i n t a i n i n g ,
s u p p o r t i n g
a n d / o r
e x p a n d i n g
t h e
a v a i l a b l e
s e w e r
s e r v i c e . "
The
c o m p l a i n t
s e e k s , among o t h e r t h i n g s , t h e f o l l o w i n g r e l i e f :
"A.
T h a t
t h i s
H o n o r a b l e
C o u r t
d e t e r m i n e
t h a t
t h i s
a c t i o n
may
be
m a i n t a i n e d
as
a
c l a s s
a c t i o n
u n d e r
R u l e
23
o f
t h e
A l a b a m a
R u l e s
o f
C i v i l
P r o c e d u r e ;
"B. T h a t j u d g m e n t be e n t e r e d
f o r P l a i n t i f f s
and
members o f t h e C l a s s a g a i n s t D e f e n d a n t s f o r m o n e t a r y
damages s u s t a i n e d by
P l a i n t i f f s
as
a r e s u l t
o f
t h e
h e r e i n
d e s c r i b e d
w r o n g f u l
c o n d u c t
and
a c t i o n s
b e t w e e n 1993
and
2008;
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"C.
T h a t j u d g m e n t be e n t e r e d f o r P l a i n t i f f s and
members
o f t h e C l a s s
a g a i n s t
D e f e n d a n t s
f o r t h e
d i s g o r g e m e n t
o f
f e e s ,
k i c k b a c k s
and
p r e m i u m s
r e c e i v e d b y D e f e n d a n t s as a r e s u l t o f t h e
h e r e i n
d e s c r i b e d w r o n g f u l c o n d u c t and a c t i o n s b e t w e e n 1993
and
2008;
"D.
T h a t
t h e C o u r t
a w a r d
i n j u n c t i v e
r e l i e f
a g a i n s t D e f e n d a n t s a n d p r e v e n t f u t u r e e x c e s s i v e
f e e s
f r o m b e i n g
p a i d and t h a t
t h i s
C o u r t
s e t - a s i d e t h e
t r a n s a c t i o n s t h a t a r e made t h e b a s i s o f t h i s c a s e as
a l l
were e n t e r e d
i n t o i n c o n t r a v e n t i o n
o f A l a b a m a
l a w ;
"E.
T h a t t h e C o u r t a w a r d
i n j u n c t i v e
r e l i e f i n
t h e f o r m o f t h e d i s g o r g e m e n t o f f e e s , k i c k b a c k s and
p r e m i u m s r e c e i v e d b y D e f e n d a n t s as a r e s u l t o f t h e
h e r e i n
d e s c r i b e d
w r o n g f u l
c o n d u c t
and
a c t i o n s
b e t w e e n 1993 and 2008;
"F. T h a t t h e P l a i n t i f f s and t h e C l a s s be a w a r d e d
i n t e r e s t a t t h e h i g h e s t
l e g a l
r a t e
a v a i l a b l e
u n d e r
l a w
r e l a t e d t o e x c e s s i v e
f e e s and
k i c k b a c k s ;
"G.
T h a t
a t t o r n e y
f o r P l a i n t i f f s
be
a w a r d e d
a t t o r n e y ' s
f e e s ; and
"H. T h a t t h e P l a i n t i f f s and members o f t h e C l a s s
h a v e s u c h o t h e r ,
f u r t h e r o r d i f f e r e n t
r e l i e f as t h e
c a s e may
r e q u i r e and t h e C o u r t may deem
j u s t and
p r o p e r u n d e r t h e
c i r c u m s t a n c e s . "
A l l
t h e c i r c u i t
j u d g e s
i n t h e T e n t h
J u d i c i a l
C i r c u i t
r e c u s e d t h e m s e l v e s i n
t h e c a s e .
The H o n o r a b l e W i l l i a m G o r d o n ,
a r e t i r e d c i r c u i t j u d g e i n
t h e F i f t e e n t h J u d i c i a l C i r c u i t , was
a p p o i n t e d
t o h e a r
t h e c a s e ,
b u t he
s u b s e q u e n t l y
r e c u s e d
h i m s e l f .
The H o n o r a b l e A l b e r t L. J o h n s o n o f t h e T w e n t y - S i x t h
4
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J u d i c i a l
C i r c u i t was t h u s a p p o i n t e d t o h e a r t h e c a s e .
A t a
s t a t u s c o n f e r e n c e ,
J u d g e J o h n s o n d i s c l o s e d t h e f a c t t h a t h i s
a d u l t d a u g h t e r was a r e s i d e n t o f J e f f e r s o n C o u n t y and r a i s e d
t h e
i s s u e w h e t h e r h i s r e c u s a l was
r e q u i r e d .
J u d g e
J o h n s o n
s t a t e d a t t h e c o n f e r e n c e :
" I have a d a u g h t e r who
l i v e s i n J e f f e r s o n
C o u n t y ,
b u t
s h e ' s n o t on t h e J e f f e r s o n C o u n t y Sewer S y s t e m .
Now, t o be d i s q u a l i f i e d , i f I'm r e a d i n g t h e [ C a n o n s ]
o f J u d i c i a l E t h i c s c o r r e c t l y , t h e r e w o u l d have t o be
a s u b s t a n t i a l i n t e r e s t , and t h i s i s s o m e t h i n g I want
e v e r y b o d y t o g i v e me a
l i t t l e
f e e d b a c k o n . B e i n g
t h a t
my
d a u g h t e r
i s n o t
a
r a t e p a y e r
f o r t h e
J e f f e r s o n C o u n t y Sewer S y s t e m , and I c a n u n d e r s t a n d
t h a t
p e r h a p s
b a s e d
on
t h e
c o m p l a i n t
i f
t h a t
a l l e g a t i o n
i s p r o v e n t o be
t r u e , t h a t
t h e r e ' s an
11,000 p l u s
d o l l a r , y o u m i g h t s a y , d e b t , t h a t
e a c h
r a t e p a y e r
h a s ,
I
w o u l d
d e t e r m i n e
t h a t
as
s u b s t a n t i a l .
B u t as o f
t h i s
d a t e , t h e
J e f f e r s o n
C o u n t y
T a x p a y e r s
have
n o t b e e n
a s s e s s e d
a n y t h i n g
t h a t
I c a n
f i n d .
I d o n ' t know i f t h e y
s h a l l
be
a s s e s s e d
a n y t h i n g .
I
d o n ' t know what
t h e
f u t u r e
h o l d s i n t h o s e r e g a r d s . So t h e n , does my d a u g h t e r
have a s u b s t a n t i a l i n t e r e s t ? Now, i f she d o e s , I'm
d i s q u a l i f i e d . I f she d o e s n ' t , I'm n o t . "
J u d g e
J o h n s o n
f u r t h e r
i n d i c a t e d
t h a t
h i s d a u g h t e r was
a
c u s t o m e r o f t h e " B e s s e m e r
W a t e r
S y s t e m . "
On F e b r u a r y 1 0 , 2 0 0 9 , s e v e r a l d e f e n d a n t s f i l e d a m o t i o n
r e q u e s t i n g
t h a t J u d g e J o h n s o n r e c u s e h i m s e l f .
S p e c i f i c a l l y ,
t h e m o t i o n
a s s e r t e d :
"2.
A f t e r
t h e r e c e s s
o f t h a t
i n i t i a l
s t a t u s
c o n f e r e n c e ,
i n q u i r i e s
b y
c o u n s e l
f o r one o f t h e
5
1080982
d e f e n d a n t s i n d i c a t e d t h a t c u s t o m e r s o f t h e B e s s e m e r
W a t e r
S y s t e m
w e r e ,
i n
f a c t ,
c o n n e c t e d
t o t h e
J e f f e r s o n C o u n t y Sewer S y s t e m a n d were c h a r g e d
r a t e s
f o r
t h a t sewer
s e r v i c e by J e f f e r s o n C o u n t y b u t were
i n v o i c e d i n t h e name o f t h e B e s s e m e r W a t e r
S y s t e m .
C o u n s e l
was
u n c e r t a i n
w h e t h e r
[ J u d g e
J o h n s o n ' s ]
d a u g h t e r
a n d
h e r
s p o u s e
a r e
u n k n o w i n g
sewer
c u s t o m e r s
o f J e f f e r s o n
C o u n t y
o r w h e t h e r
i n s t e a d
t h e i r
h o m e s i t e
m i g h t
be
s e r v e d b y a n o t h e r
sewer
s y s t e m o r e v e n
a
s e p t i c
s y s t e m .
C o u n s e l d i d
n o t
i n i t i a l l y
know
t h e name
o f
[ J u d g e
J o h n s o n ' s ]
d a u g h t e r
a n d h e r s p o u s e
b u t
r e a l i z e d
t h a t t h e
C o u r t ' s
S t a t e m e n t
o f
E c o n o m i c
I n t e r e s t s
w o u l d
c o n t a i n
t h a t p u b l i c d i s c l o s u r e .
"3.
H a v i n g
b e e n
a l e r t e d
by
t h i s
C o u r t ' s
p r o a c t i v e
d i s c l o s u r e s t o t h e p o t e n t i a l p r o b l e m , t h e
M o v a n t s
were
r e a d i l y
a b l e
t o
e s t a b l i s h
t h r o u g h
r o u t i n e
p u b l i c
s o u r c e s
t h a t
[ J u d g e
J o h n s o n ' s ]
d a u g h t e r a n d h e r s p o u s e a r e u s e r s a n d r a t e p a y e r s o f
t h e J e f f e r s o n C o u n t y Sewer
S y s t e m . "
The
m o t i o n
f u r t h e r
a l l e g e d
t h a t
t h e
t r i a l
j u d g e ' s
d a u g h t e r was a member o f t h e p u t a t i v e
c l a s s :
"6. A c c o r d i n g l y , t h e
d a u g h t e r o f J u d g e A l b e r t L.
J o h n s o n t o whom t h i s c a s e h a s b e e n a s s i g n e d , a n d
h e r
s p o u s e a r e members o f t h e R a t e p a y e r C l a s s .
S h o u l d
t h e
R a t e p a y e r
C l a s s
be
c e r t i f i e d
a n d
damages
r e c o v e r e d , [ J u d g e J o h n s o n ' s ] d a u g h t e r a n d h e r s p o u s e
w o u l d
be t h e r e c i p i e n t s o f a damages
r e c o v e r y .
S h o u l d t h e r e q u e s t e d i n j u n c t i v e
r e l i e f
p r e c l u d i n g
i n c r e a s e s i n r a t e c h a r g e s be g r a n t e d , r e g a r d l e s s o f
w h e t h e r
i t i s o b t a i n e d b y a c l a s s o r i n d i v i d u a l
P l a i n t i f f s ,
[ J u d g e
J o h n s o n ' s ]
d a u g h t e r
a n d h e r
s p o u s e
w i l l be t h e b e n e f i c i a r i e s o f any r e s u l t i n g
l i m i t a t i o n
on
f u t u r e
i n c r e a s e s
i n m o n t h l y
sewer
c h a r g e s .
"7.
[ J u d g e J o h n s o n ' s ]
d a u g h t e r a n d h e r s p o u s e
c a n n o t
e l i m i n a t e
t h e i r
i n t e r e s t s i n t h e outcome o f
6
1080982
t h e s e
p r o c e e d i n g s
b y o p t i n g o u t o f a c l a s s
s h o u l d
one be
c e r t i f i e d .
A l l i n j u n c t i v e
r e l i e f
s o u g h t b y
P l a i n t i f f s w o u l d i n u r e t o t h e i r b e n e f i t r e g a r d l e s s
o f any o p t o u t on t h e i r p a r t . "
The
m o t i o n
t h u s
s o u g h t t o have
J u d g e
J o h n s o n
r e c u s e
h i m s e l f
f r o m t h e c a s e on t h e b a s i s o f C a n o n 3.C., A l a b a m a
C a n o n s o f J u d i c i a l
E t h i c s .
On A p r i l 6, 2009, J u d g e J o h n s o n
e n t e r e d an o r d e r d e n y i n g t h e d e f e n d a n t s '
m o t i o n t o r e c u s e b u t
o r d e r e d t h e c a s e
s t a y e d p e n d i n g
r e v i e w o f h i s d e c i s i o n . The
p e t i t i o n e r s t h e n s o u g h t mandamus
r e v i e w .
The
i s s u e o f r e c u s a l may p r o p e r l y be r a i s e d i n
a p e t i t i o n
f o r a w r i t o f mandamus.
Ex p a r t e C r a w f o r d ,
686 So. 2d 196,
198
( A l a . 1 9 9 6 ) .
"The w r i t o f mandamus i s an e x t r a o r d i n a r y
remedy w h i c h s h o u l d be g r a n t e d o n l y when i t
i s c l e a r t h a t t h e
t r i a l c o u r t a b u s e d i t s d i s c r e t i o n . "
Ex p a r t e R o l l i n s , 495 So.
2d 636, 638 ( A l a . 1 9 8 6 ) .
F u r t h e r , " ' [ t ] h e b u r d e n o f p r o o f i s
on t h e p a r t y
s e e k i n g
r e c u s a l . ' "
Ex p a r t e
C i t y o f D o t h a n
P e r s o n n e l B d . , 831 So. 2d 1, 9 ( A l a . 2002)
( q u o t i n g Ex p a r t e
C o t t o n , 638 So. 2d 870, 872 ( A l a . 1 9 9 4 ) ) .
"The
s t a n d a r d f o r
r e c u s a l i s an o b j e c t i v e o n e :
w h e t h e r a r e a s o n a b l e
p e r s o n k n o w i n g e v e r y t h i n g t h a t
t h e j u d g e knows w o u l d h a v e a ' r e a s o n a b l e
b a s i s f o r
q u e s t i o n i n g
t h e j u d g e ' s
i m p a r t i a l i t y . '
[Ex p a r t e
C o t t o n , 638 So. 2d 870, 872 ( A l a . 1 9 9 4 ) ] . The f o c u s
o f
o u r
i n q u i r y ,
t h e r e f o r e ,
i s n o t
w h e t h e r
a
p a r t i c u l a r
j u d g e i s o r i s n o t b i a s e d
t o w a r d t h e
7
1080982
p e t i t i o n e r ;
t h e
f o c u s
i s
i n s t e a d
on
w h e t h e r
a
r e a s o n a b l e
p e r s o n w o u l d p e r c e i v e
p o t e n t i a l b i a s
o r
a l a c k o f
i m p a r t i a l i t y
on
t h e p a r t
o f t h e j u d g e
i n
q u e s t i o n . "
Ex p a r t e B r y a n t ,
682
So.
2d 39,
41
( A l a . 1 9 9 6 ) .
The
p e t i t i o n e r s m a i n t a i n t h a t J u d g e J o h n s o n s h o u l d
r e c u s e
h i m s e l f b a s e d
on C a n o n
3 . C ( 1 ) ( d ) .
T h a t Canon p r o v i d e s ,
i n
p e r t i n e n t
p a r t :
"C.
D i s q u a l i f i c a t i o n :
" ( 1 )
A
j u d g e
s h o u l d
d i s q u a l i f y
h i m s e l f
i n
a
p r o c e e d i n g
i n w h i c h h i s d i s q u a l i f i c a t i o n i s r e q u i r e d
by
l a w
o r
h i s
i m p a r t i a l i t y
m i g h t
r e a s o n a b l y
be
q u e s t i o n e d ,
i n c l u d i n g b u t
n o t
l i m i t e d
t o
i n s t a n c e s
w h e r e :
f i
"(d)
He
o r h i s s p o u s e , o r a p e r s o n w i t h i n
t h e
f o u r t h d e g r e e o f r e l a t i o n s h i p t o e i t h e r o f
them, o r t h e s p o u s e o f s u c h a
p e r s o n :
" ( i )
I s
named
a
p a r t y
t o
t h e
p r o c e e d i n g ,
o r
an
o f f i c e r ,
d i r e c t o r ,
o r
t r u s t e e o f a p a r t y ;
" ( i i )
I s known by t h e j u d g e t o h a v e
an
i n t e r e s t
t h a t
c o u l d
be
s u b s t a n t i a l l y
a f f e c t e d by
t h e outcome o f t h e
p r o c e e d i n g
The
p e t i t i o n e r s n o t e t h a t t h e c o m p l a i n t
a l l e g e s t h a t
t h e
s e w e r
s y s t e m
owes
a
d e b t
t h a t ,
when
p r o r a t e d
among
i t s
r a t e p a y e r s , amounts t o $11,491 f o r e a c h r e s i d e n t i a l
c u s t o m e r
8
1080982
and
t h a t
t h e
c o m p l a i n t
s e e k s
m o n e t a r y
damages
and
" d i s g o r g e m e n t "
o f
f u n d s
r e c e i v e d
as
a
r e s u l t
o f
t h e
d e f e n d a n t s ' a l l e g e d m i s c o n d u c t .
The p e t i t i o n e r s t h u s c o n t e n d
t h a t
t h e
a c t i o n
s e e k s
a
"lump
sum
r e i m b u r s e m e n t "
o r
a
"lump-sum m o n e t a r y
damages
c l a i m "
and
t h a t J u d g e
J o h n s o n ' s
d a u g h t e r may
t h u s be
e n t i t l e d
t o
r e c e i v e
up
t o $11,491 i n
damages, w h i c h
t h e
p e t i t i o n e r s
a r g u e
c l e a r l y
r e p r e s e n t s an
" i n t e r e s t " i n t h i s
c a s e .
H o w e v e r , i t i s u n c l e a r w h e t h e r J u d g e J o h n s o n ' s
d a u g h t e r
w o u l d be
e n t i t l e d t o s u c h a damages a w a r d
i n t h i s c a s e .
The
p e t i t i o n e r s
s t a t e
t h a t
t h e d a u g h t e r h a d moved t o
J e f f e r s o n
C o u n t y
and h a d b e e n a r a t e p a y e r f o r o n l y 10 m o n t h s .
I t i s
t h u s u n c l e a r on what
l e g a l
b a s i s
t h e d a u g h t e r ,
as
a
c l a s s
member, w o u l d
be
e n t i t l e d
t o a "lump sum
r e i m b u r s e m e n t "
o f
a l l e g e d l y e x c e s s i v e f e e s p a i d by o t h e r r e s i d e n t i a l
c u s t o m e r s
s i n c e 1 9 9 3 .
1
I f t h i s
a c t i o n were s u c c e s s f u l , i t seems
c l e a r
t h a t , as a r a t e p a y e r , t h e d a u g h t e r w o u l d be
l i k e l y t o r e c e i v e
some s o r t
o f m o n e t a r y
r e l i e f .
T h a t
s a i d ,
t h e p a r t i e s
h a v e
1 A t t h e h e a r i n g on t h e m o t i o n t o r e c u s e , c o u n s e l f o r t h e
p l a i n t i f f s
i n d i c a t e d t h a t " t h e p l a i n t i f f s h a v e n e v e r c l a i m e d
and a r e n o t c l a i m i n g i n t h i s c a s e t h a t e a c h p l a i n t i f f o r
r a t e ¬
p a y e r r e c e i v e a c h e c k f o r $ 1 1 , 5 0 0 . A g a i n , J u d g e ,
t h a t ' s
d e b t
l o a d , b a s e d on t h e d e b t t h a t ' s
a c c u m u l a t e d . "
9
1080982
o f f e r e d
no means by w h i c h
t o
c a l c u l a t e
t h e amount o f
s u c h
p o s s i b l e
a w a r d .
I n
any
e v e n t ,
t h e
p e t i t i o n e r s
a r g u e ,
J u d g e
J o h n s o n ' s
d a u g h t e r w o u l d
s t i l l b e n e f i t f r o m t h e i n j u n c t i v e r e l i e f
s o u g h t
i n
t h i s c a s e , e v e n i f she were t o o p t o u t o f t h e c l a s s .
The
p e t i t i o n e r s
s t a t e
t h a t " [ e ] v e n i f t h e $11,491 i n sewer
d e b t
p e r
r a t e p a y e r was
n o t
i n
i s s u e ,
t h e
i n j u n c t i o n
s o u g h t
by
P l a i n t i f f s
p r o h i b i t i n g
r a t e i n c r e a s e s
w i l l
c e r t a i n l y
p r o v i d e
a s u b s t a n t i a l m o n e t a r y
b e n e f i t " t o J u d g e J o h n s o n ' s
d a u g h t e r .
I n
s u p p o r t o f t h i s , t h e p e t i t i o n e r s
a r g u e :
" A c c o r d i n g t o t h e w e b s i t e f o r t h e J e f f e r s o n
C o u n t y
O f f i c e o f Sewer S e r v i c e , t h e c u r r e n t s e w e r
r a t e i s
$9.89 p e r 1,000
g a l l o n s o f w a t e r u s e d ; t h u s t h e r a t e
b e f o r e
t h e
3 2 9 %
i n c r e a s e
w o u l d
h a v e b e e n
$3
p e r
1,000
g a l l o n s
o f
w a t e r
u s e d .
A s s u m i n g
t h a t
t h e
a v e r a g e
h o u s e h o l d
i n
J e f f e r s o n
C o u n t y
has
2.4
p e r s o n s , and t h a t t h e a v e r a g e p e r s o n u s e s 80
g a l l o n s
o f w a t e r p e r day, t h e a v e r a g e h o u s e h o l d u s e s
a r o u n d
5,800 g a l l o n s o f w a t e r p e r month. T h i s t r a n s l a t e s t o
a
d i f f e r e n c e
o f
a l m o s t
$40
p e r
m o n t h - - f r o m
a p p r o x i m a t e l y $17 p e r month a t t h e p r e - i n c r e a s e
r a t e
e l e v e n
y e a r s ago
as c o m p a r e d t o t h e a p p r o x i m a t e l y
$57
p e r month
r a t e
i n 2008.
A l t e r n a t i v e l y ,
t h i s
t r a n s l a t e s i n t o an a v e r a g e i n c r e a s e o f a p p r o x i m a t e l y
1 1 % p e r
y e a r
o v e r
t h e p a s t e l e v e n y e a r s .
I f t h e
r e q u e s t e d
i n j u n c t i o n p r e v e n t e d f u t u r e
i n c r e a s e s
o f
1 1 %
p e r
y e a r ,
o v e r
t h e
c o u r s e
o f
one
y e a r
t h e
a v e r a g e
f a m i l y w o u l d
s a v e a r o u n d $6/month, o r
$72
f o r
t h e y e a r . The
s a v i n g s f o r t h e
f o l l o w i n g
y e a r
w o u l d be a r o u n d $12/month, w h i c h t r a n s l a t e s t o
$216
f o r
t h e two y e a r s c o m b i n e d .
I n t h e t h i r d y e a r , t h e
10
1080982
s a v i n g s
w o u l d be a r o u n d $20/month,
t r a n s l a t i n g t o
o v e r $450 o v e r j u s t
t h r e e
y e a r s . "
( C i t a t i o n s t o I n t e r n e t Web
s i t e s
o m i t t e d . )
S e v e r a l a d v i s o r y o p i n i o n s
i s s u e d by t h e A l a b a m a
J u d i c i a l
I n q u i r y C o m m i s s i o n ("JIC") d i s c u s s a n a l o g o u s s i t u a t i o n s .
2
I n
A d v i s o r y O p i n i o n No. 91-434, J I C
was a s k e d w h e t h e r , i n
a
c l a s s
a c t i o n b y c u s t o m e r s o f a u t i l i t y , a j u d g e who w o u l d be a
c l a s s
member was d i s q u a l i f i e d
f r o m p r e s i d i n g o v e r t h e c a s e .
J I C
s t a t e d t h a t t h e j u d g e s h o u l d be d i s q u a l i f i e d i f
" t h e
outcome
o f
t h e
c i v i l
p r o c e e d i n g
c o u l d
s u b s t a n t i a l l y
a f f e c t
[ h i s ] i n t e r e s t as a c u s t o m e r o f
t h e
u t i l i t y .
" ' A l t h o u g h
b e i n g
a
r a t e
p a y e r
d o e s n o t
i n v o l v e
' o w n e r s h i p o f a l e g a l o r e q u i t a b l e
i n t e r e s t '
i n t h e p a r t y t o whom t h e j u d g e
made s u c h p a y m e n t s , t h e
c o m m i t t e e
c o n c l u d e d
t h a t
a t some
p o i n t
a
r e l a t i o n s h i p
t o a
p a r t y
as a
u t i l i t y
c u s t o m e r
...
s h o u l d
d i s q u a l i f y
a j u d g e .
The
t e s t
i s t h a t a
j u d g e
s h o u l d
d i s q u a l i f y
h i m s e l f
i f t h e
outcome
o f
t h e
p r o c e e d i n g
c o u l d
s u b s t a n t i a l l y
a f f e c t
h i s i n t e r e s t
as a
c u s t o m e r o f t h e u t i l i t y
'
" I n r e V i r g i n i a
[ E l e c t r i c Power Co., 539 F.2d [357,]
368
[ ( 4 t h C i r . 1 9 7 6 ) ] ,
q u o t i n g E. Thode,
R e p o r t e r ' s
N o t e s t o Code o f J u d i c i a l C o n d u c t a t 66-67
( 1 9 7 3 ) .
I n
I n
r e
New
M e x i c o
[ N a t u r a l
Gas
A n t i t r u s t
L i t i g a t i o n ] , 620 F.2d [794,] 796 [ ( 1 0 t h C i r . 1 9 8 0 ) ] ,
2 T h i s C o u r t w i l l c o n s i d e r an a d v i s o r y o p i n i o n o f J I C , b u t
t h o s e
o p i n i o n s
a r e n o t b i n d i n g
on
t h i s
C o u r t .
C i t y
o f
B e s s e m e r v. M c C l a i n , 957 So. 2d 1 0 6 1 , 1088 ( A l a . 2 0 0 6 ) .
11
1080982
t h e
j u d g e ' s gas
b i l l
w o u l d be
l o w e r e d b y $31 p e r
y e a r
i f t h e p l a i n t i f f s
were
s u c c e s s f u l .
I n I n r e
V i r g i n i a ,
539 F.2d a t 368, t h e p o t e n t i a l
e x i s t e d
t h a t t h e j u d g e m i g h t s a v e up t o $100 o v e r t h e n e x t
40
y e a r s .
" I n
d e t e r m i n i n g
w h e t h e r
[a j u d g e h a s ] an i n t e r e s t
t h a t
c o u l d
be
' s u b s t a n t i a l l y
a f f e c t e d '
b y
t h e
outcome o f t h e
c i v i l
a c t i o n ,
[he] s h o u l d
c o n s i d e r
any
b e n e f i t [he] w i l l
r e c e i v e i f t h e p l a i n t i f f s a r e
s u c c e s s f u l ,
w h e t h e r
t h a t
b e n e f i t
i s s u c h
t h a t
a
r e a s o n a b l e p e r s o n may
q u e s t i o n
[ h i s ] i m p a r t i a l i t y ,
and t h e r e m o t e n e s s o f t h e i n t e r e s t and i t s e x t e n t o r
d e g r e e .
L.
A b r a m s o n ,
J u d i c i a l
D i s q u a l i f i c a t i o n
U n d e r Canon 3C o f t h e Code o f J u d i c i a l
C o n d u c t a t
64-65
( A m e r i c a n J u d i c a t u r e
S o c i e t y ,
1 9 8 6 ) . "
3
See a l s o J I C A d v i s o r y O p i n i o n No. 98-697
( s t a t i n g t h a t a j u d g e
was n o t r e q u i r e d t o r e c u s e h i m s e l f i n a c a s e t h a t c o u l d r e s u l t
i n
t h e j u d g e ' s
b e i n g
r e f u n d e d
a
s m a l l
f e e a s s e s s e d
b y a
g o v e r n m e n t a l e n t i t y and t h a t " t h e j u d g e i s n o t d i s q u a l i f i e d t o
h e a r
t h e
a c t i o n
i n
q u e s t i o n
u n l e s s
t h e
outcome
o f t h e
p r o c e e d i n g
c o u l d
s u b s t a n t i a l l y
a f f e c t
h i s
i n t e r e s t
as
a
p r o p e r t y o w n e r " ) .
F u r t h e r , we n o t e t h a t t h e f a c t t h a t a j u d g e
may h a v e an i n t e r e s t i n a p r o c e e d i n g as a r e s i d e n t " i n
common
w i t h
o t h e r
r e s i d e n t s i s n o t an i n t e r e s t c o n t e m p l a t e d by t h e
d i s q u a l i f i c a t i o n
p r o v i s i o n s
i n Canon
3C."
J I C
A d v i s o r y
O p i n i o n No. 95-585.
See a l s o J I C A d v i s o r y
O p i n i o n No. 92-445
3No
i n f o r m a t i o n was p r o v i d e d
t o J I C c o n c e r n i n g t h e s i z e
o f any b e n e f i t t h e j u d g e t o whom A d v i s o r y
O p i n i o n No.
91-434
was d i r e c t e d c o u l d
r e c e i v e .
12
1080982
( s t a t i n g
t h a t , b e c a u s e an i n t e r e s t a j u d g e h o l d s i n common
w i t h t h e p u b l i c a t l a r g e i s
n o t i t s e l f d i s q u a l i f y i n g , t h e f a c t
t h a t a j u d g e may be s u b j e c t t o an e l e c t r i c - m e t e r - u s e r f e e
and
a
l i c e n s e - p l a t e - r e n e w a l
f e e
was
n o t
a
b a s i s
f o r
d i s q u a l i f i c a t i o n
i n a
c a s e
c h a l l e n g i n g
t h e
p a s s a g e
o f
o r d i n a n c e s a u t h o r i z i n g s u c h
f e e s ) .
No e v i d e n t i a r y e x h i b i t s a r e a t t a c h e d t o t h e p e t i t i o n f o r
t h e w r i t o f mandamus i n t h i s c a s e ; i n s t e a d , c o p i e s o f v a r i o u s
h e a r i n g
t r a n s c r i p t s , p l e a d i n g s ,
and a u t h o r i t i e s h a v e
b e e n
f i l e d .
4
A l t h o u g h i t
a p p e a r s u n d i s p u t e d t h a t J u d g e J o h n s o n ' s
d a u g h t e r
l i v e s i n J e f f e r s o n C o u n t y and i s a c u s t o m e r o f t h e
B e s s e m e r Sewer S y s t e m
( w h i c h i s a l l e g e d t o be p a r t o f t h e
s e w e r s y s t e m ) , t h e a s s e r t i o n s f o u n d i n
t h e p l e a d i n g s
b e f o r e us
a r e n o t e v i d e n c e .
F o u n t a i n
F i n . , I n c .
v . H i n e s , 788 So. 2d
155, 159 ( A l a . 2000) ( " ' [ m ] o t i o n s and a r g u m e n t s o f c o u n s e l a r e
n o t e v i d e n c e . ' W i l l i a m s v . A k z o N o b e l Chems., I n c . , 999 S.W.2d
836,
845 ( T e x .
App. 1 9 9 9 ) .
' [ S ] t a t e m e n t s i n m o t i o n s a r e n o t
e v i d e n c e
and a r e
t h e r e f o r e
n o t
e n t i t l e d
t o
e v i d e n t i a r y
4 A l t h o u g h t h e p e t i t i o n e r s i n d i c a t e d i n t h e t r i a l
c o u r t
t h a t
t h e y
i n t e n d e d
t o f i l e
some e x h i b i t s u n d e r
s e a l ,
t h o s e
e x h i b i t s h a v e n o t b e e n i n c l u d e d
w i t h
t h e i r
p e t i t i o n t o t h i s
C o u r t .
13
1080982
w e i g h t . ' S i n g h v. I m m i g r a t i o n & N a t u r a l i z a t i o n S e r v . , 213 F.3d
1050,
1054 n.8 ( 9 t h C i r . 2 0 0 0 ) . " ) .
As
n o t e d a b o v e , i t i s u n c l e a r t o t h i s
C o u r t t h e e x a c t
amount o f damages t h e d a u g h t e r
c o u l d r e c o v e r i n t h i s
c a s e .
J u d g e J o h n s o n
b e l i e v e d t h a t h i s d a u g h t e r moved t o h e r c u r r e n t
r e s i d e n c e
s o m e t i m e i n 2 0 0 8 - - t h e
y e a r t h e c l a s s
a c t i o n
was
f i l e d - - b u t no e v i d e n c e
e s t a b l i s h e s t h e e x a c t d a t e .
C o u n s e l
f o r t h e p l a i n t i f f s
e x p r e s s e d c o n c e r n a t t h e h e a r i n g on t h e
m o t i o n t o r e c u s e t h a t t h e d a u g h t e r may n o t e v e n
f a l l
w i t h i n
t h e c l a s s p e r i o d - - t h e a c t i o n was
f i l e d i n J u n e 2008 and s e e k s
damages o n l y f o r a c t i o n s up t o t h a t p o i n t .
B e c a u s e t h i s
C o u r t
i s n o t p r o v i d e d t h e d a t e on w h i c h
J u d g e J o h n s o n ' s
d a u g h t e r
moved t o J e f f e r s o n
C o u n t y ,
we c a n n o t
d e t e r m i n e
i f she i s a
r a t e p a y e r
i n
t h i s
a c t i o n .
F i n a l l y ,
t h e
b a s i s
f o r t h e
p e t i t i o n e r s '
c o n c l u s i o n t h a t
i n j u n c t i v e
r e l i e f i n t h i s
c a s e
w o u l d b e n e f i t t h e d a u g h t e r by $450 o v e r a t h r e e - y e a r p e r i o d i s
n o t s u p p o r t e d b y e v i d e n c e s u b m i t t e d t o t h e t r i a l
c o u r t .
5
"The n e c e s s i t y f o r r e c u s a l i s e v a l u a t e d b y t h e
' t o t a l i t y
o f t h e f a c t s ' a n d c i r c u m s t a n c e s i n e a c h
c a s e .
D o t h a n P e r s .
Bd.,
831 So. 2d a t 2. The t e s t i s w h e t h e r
' " f a c t s a r e shown
5 T h e
a u t h o r i t y f o r t h e p e t i t i o n e r s '
f i g u r e
c o n s i s t s o f
c i t a t i o n s t o two I n t e r n e t Web
s i t e s .
14
1080982
w h i c h make i t r e a s o n a b l e
f o r members o f t h e p u b l i c o r a p a r t y ,
o r
c o u n s e l
o p p o s e d
t o
q u e s t i o n
t h e
i m p a r t i a l i t y
o f
t h e
j u d g e . " ' "
Ex
p a r t e G e o r g e ,
962
So.
2d
789,
791
( A l a . 2006)
( q u o t i n g I n r e S h e f f i e l d ,
465
So.
2d 350,
355-56
( A l a . 1 9 8 4 ) ,
q u o t i n g
i n t u r n A c r o m a g - V i k i n g v. B l a l o c k , 420
So.
2d
60,
61
( A l a . 1982)
( e m p h a s i s a d d e d ) ) .
" R e c u s a l
i s n o t r e q u i r e d where
t h e r e
i s n o t
s u b s t a n t i a l e v i d e n c e t o s u p p o r t an a c c u s a t i o n
o f
b i a s . "
F o r d
v.
F o r d ,
412
So.
2d
789,
791
( A l a . C i v .
App.
1982)
( e m p h a s i s a d d e d ) .
" ' [ T ] h e
l a w
w i l l
n o t
s u p p o s e
a
p o s s i b i l i t y
o f
b i a s
o r
f a v o r i n a j u d g e who
i s a l r e a d y s w o r n t o a d m i n i s t e r
i m p a r t i a l
j u s t i c e
and
whose
a u t h o r i t y
g r e a t l y
d e p e n d s
upon
t h a t
p r e s u m p t i o n and
i d e a . ' "
Ex p a r t e B a l o g u n , 516
So.
2d 606,
609
( A l a .
1987)
( q u o t i n g
F u l t o n v. L o n g s h o r e , 156
A l a . 611,
613,
46
So.
989,
990
( 1 9 0 8 ) ) .
A s s u m i n g
t h e
u l t i m a t e
s u c c e s s
o f
t h i s
c l a s s a c t i o n , no e v i d e n c e has b e e n s u b m i t t e d
i n s u p p o r t
o f
t h i s
p e t i t i o n
e s t a b l i s h i n g :
(1)
t h a t
J u d g e
J o h n s o n ' s
d a u g h t e r was
a r a t e p a y e r
o f t h e s e w e r s y s t e m d u r i n g t h e
p e r i o d
c o v e r e d by
t h i s
a c t i o n ,
(2) t h a t t h e r e
e x i s t s any
r e a s o n a b l e
b a s i s
f o r
q u a n t i f y i n g
t h e
amount
o f
damages
she
w o u l d
be
e n t i t l e d
t o
r e c e i v e
as
a
c l a s s member,
o r
(3)
t h a t
t h e r e
15
1080982
e x i s t s
any
r e a s o n a b l e
b a s i s
f o r q u a n t i f y i n g
t h e m o n e t a r y
b e n e f i t t o h e r as a r e s u l t o f t h e r e q u e s t e d i n j u n c t i v e
r e l i e f .
As p r e v i o u s l y
n o t e d , mandamus
w i l l
l i e t o c o m p e l a
j u d g e ' s
r e c u s a l o n l y when t h e r e i s s u f f i c i e n t
e v i d e n c e t o c a l l
i n t o
q u e s t i o n t h e i m p a r t i a l i t y o f t h e j u d g e .
A t some p o i n t i n
t h e
f u t u r e
l i t i g a t i o n
o f t h i s
c a s e t h e t r i a l
j u d g e may become
a p p r i s e d o f f a c t s
r e q u i r i n g h i s r e c u s a l u n d e r Canon 3;
s u c h
f a c t s , h o w e v e r , have n o t b e e n d e m o n s t r a t e d
t o t h i s C o u r t on
mandamus r e v i e w .
T h e r e f o r e , t h e p e t i t i o n i s d e n i e d .
P E T I T I O N DENIED.
Cobb, C . J . , and L y o n s ,
S t u a r t , and P a r k e r , J J . , c o n c u r .
W o o d a l l ,
S m i t h ,
B o l i n ,
and
M u r d o c k ,
J J . , r e c u s e
t h e m s e l v e s .
16 | December 4, 2009 |
5e019110-070c-4ba5-82d9-6968261d1e1b | Shelvia Graves v. Brookwood Health Services, Inc., d/b/a Brookwood Medical Center | N/A | 1071224 | Alabama | Alabama Supreme Court | REL: 12/18/2009
Notice: T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e
Reporter of Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741
((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may
be
made b e f o r e
t h e o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1071224
S h e l v i a Graves
v.
Brookwood H e a l t h S e r v i c e s , Inc.,
d/b/a
Brookwood M e d i c a l
Center
Appeal from J e f f e r s o n C i r c u i t
Court
(CV-02-4480)
MURDOCK,
J u s t i c e .
S h e l v i a
G r a v e s
a p p e a l s
f r o m a j u d g m e n t i n f a v o r o f
B r o o k w o o d
H e a l t h
S e r v i c e s ,
I n c . ,
d/b/a B r o o k w o o d
M e d i c a l
C e n t e r
( " B r o o k w o o d " ) , on G r a v e s ' s
c l a i m
a l l e g i n g
m e d i c a l
1071224
n e g l i g e n c e
a g a i n s t
n u r s e s
a t B r o o k w o o d .
We
r e v e r s e
and
remand.
I .
F a c t s and P r o c e d u r a l H i s t o r y
On A u g u s t 7, 2000, G r a v e s was
a d m i t t e d t o B r o o k w o o d ' s
D i g e s t i v e
D i s e a s e
C e n t e r
t o u n d e r g o
an
u p p e r
and
l o w e r
g a s t r o i n t e s t i n a l exam ("GI exam") as t h e r e s u l t o f p r o b l e m s
she
h a d
b e e n
h a v i n g
r e l a t e d
t o
u l c e r a t i v e
c o l i t i s ,
an
i n f l a m m a t o r y d i s e a s e o f t h e s m a l l i n t e s t i n e a n d c o l o n .
G r a v e s
had h a d s e v e r a l m e d i c a l p r o b l e m s b e f o r e t h e GI exam, i n c l u d i n g
two p r i o r c o l o n s u r g e r i e s , s i n u s p r o b l e m s ,
m i g r a i n e h e a d a c h e s ,
and
i r o n - d e f i c i e n c y a n e m i a - - t h e l a s t o f w h i c h
r e q u i r e d h e r
t o r e c e i v e f r e q u e n t v i t a m i n B-12 s h o t s and o c c a s i o n a l b l o o d
t r a n s f u s i o n s .
As a c o n s e q u e n c e , b y G r a v e s ' s own a d m i s s i o n i n
h e r d e p o s i t i o n t e s t i m o n y , she h a d r e c e i v e d s e v e r a l s h o t s and
b e e n a d m i n i s t e r e d s e v e r a l I V s i n t h e y e a r s b e f o r e t h e GI exam.
G r a v e s ' s
l a t e s t
I V was
a d m i n i s t e r e d
a p p r o x i m a t e l y
a week
b e f o r e t h e GI exam.
The n u r s i n g - a d m i s s i o n summary
p r e p a r e d
b e f o r e
t h e GI exam
i n d i c a t e d
t h a t
G r a v e s
h a d edema, o r
s w e l l i n g , i n h e r h a n d s and f i n g e r s , a s m a l l c u t on one f i n g e r
o f h e r r i g h t h a n d , and b r u i s e s on h e r u p p e r a r m s .
G r a v e s
r e l a t e d t h a t she t o l d t h e n u r s e s who a d m i t t e d h e r f o r t h e GI
2
1071224
exam t h a t
t h e b r u i s e s were f r o m p r e v i o u s
I V s ,
b u t
she
s t a t e d
t h a t
h e r
h a n d s
and
f i n g e r s were
n o t
s w o l l e n
b e f o r e
t h e
GI
exam.
G r a v e s t e s t i f i e d t h a t t h e n u r s e s a t t h e D i g e s t i v e
D i s e a s e
C e n t e r a t t e m p t e d
t o
s t a r t
an
IV
i n h e r
l e f t
arm,
1
w h i c h
was
u n s u c c e s s f u l ,
and
t h e n t h e y i n s e r t e d t h e
IV i n h e r
l e f t h a n d ,
w h i c h r e s u l t e d i n an
i n f i l t r a t i o n .
2
A c c o r d i n g
t o G r a v e s ,
t h e
n u r s e s t h e n w i t h d r e w t h e IV f r o m h e r
l e f t h a n d and
i n s e r t e d i t
i n t o
t h e
b a c k
o f
h e r
r i g h t h a n d .
3
G r a v e s
a l l e g e s
t h a t
an
i n f i l t r a t i o n
o c c u r r e d
i n
h e r
r i g h t
h a n d
and
t h a t
she
i m m e d i a t e l y b e g a n e x p e r i e n c i n g
s e v e r e p a i n i n h e r
r i g h t h a n d ,
w h i c h c a u s e d h e r t o s t a r t c r y i n g .
G r a v e s s t a t e d t h a t she
t o l d
t h e
n u r s e s
t h a t
t h e
IV was
i n s e r t e d i n c o r r e c t l y and
t h a t i t
was
c a u s i n g
h e r p a i n , b u t t h e y d i d n o t remove t h e IV.
A t
t h a t
p o i n t , Dr. G r e g o r y Champion e n t e r e d
t h e room and
a d m i n i s t e r e d
1The
p u r p o s e o f t h e IV was
t o i n j e c t a s u c c e s s i o n
o f d r u g s
t h a t w o u l d i n d u c e c o n s c i o u s
s e d a t i o n
o f
t h e
p a t i e n t
f o r
t h e
d u r a t i o n
o f t h e
GI exam.
2An
i n f i l t r a t i o n
o c c u r s
when
an
IV
i s
n o t
p r o p e r l y
i n s e r t e d
i n t o t h e
v e i n
and
t h e
f l u i d
i n t h e
IV
i s
i n j e c t e d
i n t o t i s s u e s u r r o u n d i n g
t h e
s i t e
o f t h e
IV.
3 T h e
p r o c e d u r e
r e c o r d
f o r
G r a v e s ' s
GI
exam
d o e s
n o t
i n d i c a t e t h a t t h e n u r s e s had
any p r o b l e m s s t a r t i n g t h e
I V ; i n
a d d i t i o n ,
i t s t a t e s t h a t t h e
IV was
i n s e r t e d i n G r a v e s ' s
l e f t
h a n d and
t h a t
i t r e m a i n e d t h e r e
t h r o u g h o u t t h e
GI exam.
3
1071224
t h e
i n j e c t i o n
o f
t h r e e
s u c c e s s i v e
d r u g s
t h r o u g h
t h e
IV
f i r s t
V e r s e d ,
t h e n D e m e r o l ,
and
f i n a l l y
P h e n e r g a n .
G r a v e s
a l l e g e s t h a t she
t o l d D r . C h a m p i o n t h a t t h e IV was
c a u s i n g
h e r
p a i n b u t
t h a t he
r e p l i e d t h a t t h e y were a l r e a d y b e h i n d i n
t h e
p r o c e d u r e and
t h a t she w o u l d j u s t h a v e t o e n d u r e i t .
G r a v e s c l a i m s t h a t D r . C h a m p i o n t h e n b e g a n t h e GI exam by
p l a c i n g
a t u b e w i t h
a t i n y c a m e r a down h e r
t h r o a t w h i l e
she
r e m a i n e d
c o m p l e t e l y
c o n s c i o u s .
4
G r a v e s
r e l a t e d
t h a t
she
c o n t i n u e d
t o c r y b e c a u s e o f t h e p a i n i n h e r h a n d c a u s e d by
t h e
IV and c h o k e d as t h e c a m e r a was
f o r c e d down h e r
t h r o a t .
Once
t h e
c a m e r a
was
i n
p l a c e ,
D r .
C h a m p i o n
p e r f o r m e d
t h e
e x a m i n a t i o n and
o b t a i n e d
b i o p s i e s o f G r a v e s ' s b o w e l .
The
GI
exam t o o k 10
t o 20
m i n u t e s .
5
G r a v e s
t e s t i f i e d
t h a t upon c o m p l e t i o n
o f
t h e
p r o c e d u r e
she
l o o k e d
down a t
h e r
r i g h t
h a n d
and
n o t i c e d
t h a t
i t
was
s w o l l e n
" l i k e a b o x i n g
g l o v e . "
G r a v e s was
t r a n s p o r t e d
t o
t h e
r e c o v e r y room a f t e r D r . C h a m p i o n o r d e r e d
t h a t a warm c o m p r e s s
4 T h e p r o c e d u r e
r e c o r d
i n d i c a t e s t h a t
G r a v e s
was
s e d a t e
f o l l o w i n g t h e a d m i n i s t r a t i o n o f t h e
l a s t d r u g d o s a g e and
t h a t
she
r e m a i n e d so
u n t i l
she awoke i n t h e
r e c o v e r y
room.
5 D r .
C h a m p i o n ' s n o t e s
on
t h e
p r o c e d u r e
do
n o t
i n d i c a t e
t h a t
t h e r e were any
p r o b l e m s
s e d a t i n g
G r a v e s o r
t h a t
G r a v e s
e x p r e s s e d any
f e e l i n g o f d i s c o m f o r t
d u r i n g
t h e
GI exam.
4
1071224
be p l a c e d on t h e
i n f i l t r a t i o n
s i t e .
6
G r a v e s
t e s t i f i e d
t h a t
n e i t h e r t h e s w e l l i n g n o r t h e p a i n i n h e r r i g h t h a n d s u b s i d e d
w h i l e
she was
i n t h e r e c o v e r y room.
G r a v e s
was d i s c h a r g e d
f r o m B r o o k w o o d w i t h o u t r e c e i v i n g
f u r t h e r
t r e a t m e n t f o r h e r
h a n d .
G r a v e s
s t a t e d t h a t D r . C h a m p i o n t o l d h e r h u s b a n d
t h a t
t h e
s w e l l i n g i n h e r h a n d w o u l d s u b s i d e w i t h i n 10
d a y s .
G r a v e s
s t a t e d
t h a t
she
v i s i t e d
an
e m e r g e n c y
room
a p p r o x i m a t e l y two weeks l a t e r when t h e p a i n i n h e r r i g h t h a n d
s t i l l
h a d
n o t
s u b s i d e d .
G r a v e s
s u b s e q u e n t l y b e g a n
s e e i n g
o t h e r
d o c t o r s when
t h e e m e r g e n c y - r o o m
t r e a t m e n t
f a i l e d
t o
r e d u c e
t h e
p a i n
i n
h e r
r i g h t
h a n d
and
she
e x p e r i e n c e d
p r o g r e s s i v e
l o s s
o f
r a n g e
o f
m o t i o n
i n
t h a t
h a n d .
She
r e c e i v e d n e r v e b l o c k s i n h e r
r i g h t h a n d f r o m one
p h y s i c i a n ,
w h i c h
d i d n o t
r e s u l t
i n s i g n i f i c a n t
i m p r o v e m e n t .
She
was
r e f e r r e d
t o o r t h o p e d i c s u r g e o n D r .
W i l l i a m
S t a n d e f f e r ,
who
p e r f o r m e d
a s u r g e r y on
G r a v e s ' s
r i g h t
h a n d
on November
8,
2000.
The s u r g e r y was
n o t s u c c e s s f u l , and G r a v e s
t h e r e a f t e r
r e c e i v e d e x t e n s i v e t r e a t m e n t i n r e p e a t e d v i s i t s
--
i n c l u d i n g
a n o t h e r
s u r g e r y
t o
h e r
h a n d
--
f r o m
o r t h o p e d i c
s u r g e o n
6The
p r o c e d u r e
r e c o r d
n o t e d
t h a t
an
i n f i l t r a t i o n
h a d
o c c u r r e d i n G r a v e s ' s
l e f t h a n d and
t h a t a warm c o m p r e s s
was
p l a c e d on t h e
i n f i l t r a t i o n
s i t e .
5
1071224
D r . J o h n B u c k l e y .
G r a v e s
has
n o t r e g a i n e d
f u l l
u s e o f
h e r
r i g h t h a n d , and she has b e e n d i a g n o s e d w i t h p e r m a n e n t
n e r v e
damage t o t h e h a n d .
On
J u l y 29, 2002, G r a v e s
and h e r t h e n h u s b a n d
M i c h a e l
7
s u e d B r o o k w o o d ,
a l l e g i n g
t h a t
t h e
n u r s e s
i n t h e
D i g e s t i v e
D i s e a s e C e n t e r h a d
n e g l i g e n t l y
i n s e r t e d
t h e IV i n G r a v e s ' s
r i g h t
h a n d on A u g u s t
7,
2000, w h i c h
r e s u l t e d
i n p e r m a n e n t
n e r v e damage t o t h a t h a n d .
On November 14, 2003, B r o o k w o o d
f i l e d
i t s i n i t i a l
m o t i o n
f o r a summary j u d g m e n t ,
w h i c h i t
s u p p o r t e d
w i t h
G r a v e s ' s
m e d i c a l r e c o r d s f r o m B r o o k w o o d ,
an
a f f i d a v i t f r o m n u r s e G i n g e r A z b i k ( t h e n u r s e who
i n s e r t e d t h e
IV
i n t o G r a v e s ' s h a n d ) s t a t i n g t h a t she h a d n o t b r e a c h e d t h e
s t a n d a r d
o f
c a r e
i n
i n s e r t i n g
t h e
I V ,
and
a
n a r r a t i v e
o f
u n d i s p u t e d
f a c t s .
G r a v e s
o p p o s e d
t h e
m o t i o n
t h r o u g h
an
a f f i d a v i t
f r o m R e b e c c a
L a n g e r , a n u r s e a t t h e U n i v e r s i t y
o f
A l a b a m a
a t
B i r m i n g h a m ,
who
s t a t e d
t h a t
i n
h e r
o p i n i o n
B r o o k w o o d ' s
n u r s e s
h a d
b r e a c h e d
t h e
s t a n d a r d o f
c a r e ,
and
e x c e r p t s f r o m G r a v e s ' s d e p o s i t i o n t e s t i m o n y .
B a s e d on t h e s e
7 M i c h a e l G r a v e s s u b s e q u e n t l y f i l e d a m o t i o n t o d i s m i s s h i s
l o s s - o f - c o n s o r t i u m c l a i m b e c a u s e he was
no l o n g e r m a r r i e d t o
S h e l v i a G r a v e s
and no l o n g e r " w i s h e d t o p a r t i c i p a t e
i n
t h i s
l a w s u i t . "
The
t r i a l
c o u r t g r a n t e d t h e m o t i o n , l e a v i n g
G r a v e s
as t h e s o l e
p l a i n t i f f .
6
1071224
s u b m i s s i o n s , t h e
t r i a l
c o u r t d e n i e d B r o o k w o o d ' s m o t i o n f o r a
summary j u d g m e n t .
F o l l o w i n g
t h e
d e n i a l
o f
t h e
summary-judgment
m o t i o n ,
d i s c o v e r y
c o n t i n u e d ,
d u r i n g
w h i c h
s e v e r a l
d e p o s i t i o n s
w e r e
t a k e n ,
i n c l u d i n g
t h e
d e p o s i t i o n s
o f
N u r s e
L a n g e r ,
D r .
S t a n d e f f e r ,
and
D r .
B u c k l e y .
D r .
B u c k l e y was
i n i t i a l l y
d e p o s e d
on
November
11,
2004.
I n
F e b r u a r y
2008,
a
v i d e o
d e p o s i t i o n
o f D r .
B u c k l e y was
t a k e n .
The
day
a f t e r
t h e
t r a n s c r i p t
o f
D r .
B u c k l e y ' s
v i d e o
d e p o s i t i o n was
c o m p l e t e d , B r o o k w o o d f i l e d a r e n e w e d m o t i o n f o r
a summary j u d g m e n t , w h i c h i t s u p p o r t e d w i t h e x c e r p t s
f r o m
t h e
d e p o s i t i o n
o f
D r .
S t a n d e f f e r
and
D r .
B u c k l e y ' s
v i d e o
t e s t i m o n y .
The
m o t i o n
n o t e d
t h a t
G r a v e s
p r e v i o u s l y
had
i d e n t i f i e d o r t h o p e d i c
s u r g e o n s D r . S t a n d e f f e r
and D r .
B u c k l e y
as
t h e
p h y s i c i a n s
q u a l i f i e d
t o
s p e a k
t o
t h e
i s s u e
o f
c a u s a t i o n .
B r o o k w o o d
n o t e d
t h a t
D r .
S t a n d e f f e r
i n
h i s
d e p o s i t i o n
t e s t i m o n y
t e s t i f i e d
t h a t
he
d i d n o t
t h i n k
i t
was
" p l a u s i b l e " o r " r e a s o n a b l e "
t h a t
t h e
IV
i n f i l t r a t i o n
c a u s e d
G r a v e s ' s
i n j u r y .
I t
a l s o
h i g h l i g h t e d
t h e
f a c t
t h a t
D r .
B u c k l e y
i n h i s v i d e o
t e s t i m o n y
s t a t e d
t h a t
i t was
p o s s i b l e ,
b u t
n o t
p r o b a b l e ,
t h a t
t h e
IV
i n f i l t r a t i o n
had
c a u s e d
t h e
7
1071224
n e r v e damage i n G r a v e s ' s r i g h t h a n d .
B a s e d on t h i s e v i d e n c e ,
B r o o k w o o d
c o n t e n d e d
t h a t
G r a v e s
h a d
f a i l e d
t o
e s t a b l i s h
a
p r i m a
f a c i e c a s e o f m e d i c a l n e g l i g e n c e .
G r a v e s r e s p o n d e d t o t h e m o t i o n by
c i t i n g N u r s e
L a n g e r ' s
a f f i d a v i t
and
e x c e r p t s f r o m D r .
B u c k l e y ' s 2004
d e p o s i t i o n .
She
n o t e d
t h a t D r .
B u c k l e y h a d
s t a t e d
i n 2004
t h a t
i t was
p r o b a b l e
t h a t
t h e
IV
i n f i l t r a t i o n
h a d
c a u s e d
h e r
i n j u r y .
B r o o k w o o d ' s m o t i o n was
s e t f o r a h e a r i n g on M a r c h
7, 2008.
B r o o k w o o d
f i l e d
a
m o t i o n
t o
s t r i k e
N u r s e
L a n g e r ' s
a f f i d a v i t
-- t o t h e e x t e n t t h a t G r a v e s
s o u g h t
t o u s e
i t t o
e s t a b l i s h c a u s a t i o n -- on t h e g r o u n d
t h a t a r e g i s t e r e d
n u r s e
was n o t q u a l i f i e d t o t e s t i f y as an e x p e r t on m e d i c a l c a u s a t i o n
i n
a m e d i c a l - m a l p r a c t i c e a c t i o n .
B r o o k w o o d
a l s o moved
t o
s t r i k e D r . B u c k l e y ' s 2004 d e p o s i t i o n on t h e g r o u n d t h a t i t was
s u p p l a n t e d by t h e 2008 v i d e o
d e p o s i t i o n .
D u r i n g a h e a r i n g on M a r c h
7, 2008, t h e
t r i a l
c o u r t d i d
n o t r u l e on B r o o k w o o d ' s r e n e w e d m o t i o n f o r a summary
j u d g m e n t .
I n s t e a d , t h e
t r i a l
c o u r t
i n d i c a t e d
t h a t i t w a n t e d t o r e v i e w
t h e
t e s t i m o n y f r o m b o t h o f D r . B u c k l e y ' s d e p o s i t i o n s b e f o r e
r u l i n g on t h e m o t i o n .
On M a r c h 10, t h e d a t e t h a t h a d b e e n s e t
f o r
t r i a l , t h e t r i a l c o u r t i n d i c a t e d t h a t i t w a n t e d t o p r o c e e d
8
1071224
t o
t r i a l
p r o v i d e d
t h a t
G r a v e s w o u l d be p r e s e n t i n g
f u r t h e r
e v i d e n c e o f c a u s a t i o n .
A l s o a t t h i s
t i m e ,
G r a v e s
c o n c e d e d
t h a t N u r s e L a n g e r ' s t e s t i m o n y
c o u l d n o t be u s e d t o e s t a b l i s h
c a u s a t i o n , and she w i t h d r e w D r . S t a n d e f f e r as a w i t n e s s f o r
p u r p o s e s o f c a u s a t i o n .
T h u s ,
o n l y D r . B u c k l e y ' s
t e s t i m o n y
r e m a i n e d as e v i d e n c e t o e s t a b l i s h c a u s a t i o n .
The p a r t i e s t h e n
p r o c e e d e d t o j u r y
s e l e c t i o n .
On
M a r c h
11, 2008,
t h e
t r i a l
c o u r t
h e a r d
e x t e n s i v e
a r g u m e n t s c o n c e r n i n g
t h e p a r t i e s ' m o t i o n s i n l i m i n e .
D u r i n g
t h i s
h e a r i n g ,
t h e
t r i a l
c o u r t
r u l e d
t h a t
G r a v e s
c o u l d n o t
i n t r o d u c e c e r t a i n m e d i c a l
l i t e r a t u r e c o n c e r n i n g t h e e f f e c t o f
t h e d r u g P h e n e r g a n ,
8 w h i c h G r a v e s a p p a r e n t l y
i n t e n d e d t o u s e
as
e v i d e n c e
r e g a r d i n g
c a u s a t i o n .
B r o o k w o o d t h e n u r g e d t h e
t r i a l c o u r t t o r e c o n s i d e r i t s a l l e g a t i o n i n i t s r e n e w e d m o t i o n
f o r
a summary j u d g m e n t
t h a t t h e e v i d e n c e o f c a u s a t i o n
was
i n s u f f i c i e n t
b e c a u s e
G r a v e s h a d c o n c e d e d
t h a t
she h a d no
c a u s a t i o n
e v i d e n c e
o t h e r
t h a n
t h e d e p o s i t i o n
t e s t i m o n y
o f
Dr.
B u c k l e y .
F o l l o w i n g an i n c a m e r a m e e t i n g among t h e
t r i a l
8 T h e
t r i a l
c o u r t c o n c l u d e d
t h a t G r a v e s was a t t e m p t i n g t o
add a new c l a i m t o h e r c o m p l a i n t
i n v o l v i n g t h e d r u g P h e n e r g a n
t h o u g h she n e v e r amended h e r c o m p l a i n t t o i n c l u d e a l l e g a t i o n s
c o n c e r n i n g
t h e u s e o f a s p e c i f i c d r u g b y B r o o k w o o d .
9
1071224
c o u r t
and
t h e
p a r t i e s '
a t t o r n e y s ,
t h e
t r i a l
c o u r t
s t a t e d
t h e
f o l l o w i n g
i n open
c o u r t :
"The
C o u r t
h a v i n g
c o n s i d e r e d
t h e
d e p o s i t i o n
t e s t i m o n y
o f
Dr.
S t a n d e f f e r ,
Dr.
B u c k l e y ,
b o t h
d e p o s i t i o n s
o f Dr. B u c k l e y , r u l e s t h a t [ B r o o k w o o d ' s ]
r e q u e s t
f o r j u d g m e n t
as
a m a t t e r
o f
l a w
s h o u l d
be
g r a n t e d .
I t h i n k [ G r a v e s ] and [ B r o o k w o o d ] have b o t h
s t i p u l a t e d as t o t h o s e d e p o s i t i o n s .
The
C o u r t , upon
r e v i e w o f t h o s e ,
f i n d s [ B r o o k w o o d ' s ] m o t i o n i s g o i n g
t o be
g r a n t e d . "
F o l l o w i n g
t h i s p r o n o u n c e m e n t ,
t h e
t r i a l
c o u r t
d i s m i s s e d
t h e
j u r y .
On
A p r i l
22,
2008,
t h e
t r i a l
c o u r t
e n t e r e d
a
w r i t t e n
o r d e r ,
w h i c h p r o v i d e d ,
i n p e r t i n e n t
p a r t :
" [ G r a v e s ]
f a i l e d
t o
meet
t h e
s t a n d a r d
o f
s u b s t a n t i a l
e v i d e n c e
r e q u i r e d
by
A l a b a m a
Law,
i n d i c a t i n g
t h a t
t h e
a l l e g e d
n e g l i g e n c e
p r o b a b l y
c a u s e d
t h e
i n j u r y
c l a i m e d
by
t h e
p l a i n t i f f .
Dr. J o h n B u c k l e y and
Dr. W i l l i a m S t a n d e f f e r were
two
o r t h o p e d i c
s u r g e o n s
who
t r e a t e d
[ G r a v e s ] .
Dr.
B u c k l e y ,
by
way
o f
h i s
t r i a l
t e s t i m o n y ,
and
Dr.
S t a n d e f f e r ,
by way
o f h i s d e p o s i t i o n ,
t e s t i f i e d
t h a t t h e y c a n n o t s t a t e t h e
i n f i l t r a t i o n
a t i s s u e
i n
t h i s c a u s e was
t h e p r o b a b l e c a u s e o f [ G r a v e s ' s ] h a n d
i n j u r y ,
o n l y
t h a t
i t i s a p o s s i b l e c a u s e .
( B u c k l e y
d e p o s i t i o n
I I I ,
p.
4 2 ;
S t a n d e f f e r
d e p o s i t i o n ,
p.
1 0 0 ) .
" A b s e n t s u b s t a n t i a l e v i d e n c e d e m o n s t r a t i n g
t h a t
t h e
a l l e g e d n e g l i g e n c e
i s t h e p r o b a b l e c a u s e o f
t h e
c l a i m e d
i n j u r y , a j u d g m e n t as a m a t t e r o f l a w
i s
due
t o be
e n t e r e d
i n f a v o r
o f B r o o k w o o d H o s p i t a l . "
G r a v e s a p p e a l s f r o m t h i s j u d g m e n t o f t h e
t r i a l
c o u r t .
10
1071224
I I .
S t a n d a r d o f R e v i e w
T h o u g h t h e t r i a l
c o u r t s t y l e d i t s o r d e r as r e l i e f
b a s e d
on B r o o k w o o d ' s " r e n e w e d m o t i o n f o r
j u d g m e n t as a m a t t e r o f l a w
p u r s u a n t t o R u l e 50 o f t h e A l a b a m a R u l e s o f C i v i l
P r o c e d u r e , "
t h e m o t i o n
b e f o r e t h e t r i a l
c o u r t was, i n f a c t ,
B r o o k w o o d ' s
"Renewed M o t i o n f o r Summary J u d g m e n t . "
M o r e o v e r ,
t h e
t r i a l
c o u r t
e n t e r e d i t s o r a l
o r d e r
b e f o r e
G r a v e s
p r e s e n t e d any
p o r t i o n o f h e r c a s e t o t h e e m p a n e l e d
j u r y .
T h e r e f o r e , t h e
t r i a l
c o u r t a c t u a l l y e n t e r e d a summary j u d g m e n t i n f a v o r o f
B r o o k w o o d as o p p o s e d t o a j u d g m e n t as a m a t t e r o f l a w .
See
R u l e 5 0 ( a ) , A l a .
R. C i v .
P. ( p r o v i d i n g f o r a " j u d g m e n t as a
m a t t e r o f l a w " o n l y a f t e r "a p a r t y h a s b e e n f u l l y h e a r d on an
i s s u e " ) .
T h i s d i s t i n c t i o n makes no d i f f e r e n c e i n t e r m s o f o u r
s t a n d a r d o f r e v i e w b e c a u s e " [ t ] h e s t a n d a r d by w h i c h we r e v i e w
a r u l i n g on a m o t i o n f o r a [ j u d g m e n t
as a m a t t e r o f l a w ] i s
' " m a t e r i a l l y
i n d i s t i n g u i s h a b l e f r o m t h e s t a n d a r d by w h i c h we
r e v i e w a summary j u d g m e n t . " ' "
B a i l e y v . F a u l k n e r , 940 So. 2d
247, 249 ( A l a . 2006) ( q u o t i n g F l i n t C o n s t r . Co. v . H a l l , 904
So. 2d 236, 246 ( A l a . 2 0 0 4 ) , q u o t i n g i n t u r n H a t h c o c k v . Wood,
815 So. 2d 502, 506 ( A l a . 2 0 0 1 ) ) .
"'We
a p p l y t h e same s t a n d a r d o f r e v i e w [ i n
r e v i e w i n g
t h e
g r a n t
o r
d e n i a l
o f
a
11
1071224
summary-judgment m o t i o n ] as t h e t r i a l c o u r t
a p p l i e d .
S p e c i f i c a l l y ,
we must
d e t e r m i n e
w h e t h e r
t h e movant has made a p r i m a
f a c i e
s h o w i n g
t h a t no g e n u i n e
i s s u e o f m a t e r i a l
f a c t
e x i s t s and t h a t t h e movant i s e n t i t l e d
t o
a j u d g m e n t as a m a t t e r o f l a w .
R u l e
5 6 ( c ) ,
A l a . R. C i v . P.; B l u e C r o s s & B l u e
S h i e l d o f A l a b a m a v. H o d u r s k i , 899 So. 2d
949, 952-53 ( A l a .
2 0 0 4 ) .
I n m a k i n g s u c h a
d e t e r m i n a t i o n , we must r e v i e w t h e e v i d e n c e
i n
t h e
l i g h t
most
f a v o r a b l e
t o
t h e
n o n m o v a n t .
W i l s o n v . B r o w n , 496 So. 2d
756,
758
( A l a . 1
98
6) .
Once
t h e movant
makes a p r i m a
f a c i e
s h o w i n g
t h a t t h e r e i s
no
g e n u i n e
i s s u e
o f
m a t e r i a l
f a c t ,
t h e
b u r d e n
t h e n
s h i f t s
t o t h e nonmovant
t o
p r o d u c e
" s u b s t a n t i a l
e v i d e n c e " as t o t h e
e x i s t e n c e o f a g e n u i n e
i s s u e o f
m a t e r i a l
f a c t .
B a s s v. S o u t h T r u s t Bank o f B a l d w i n
C o u n t y , 538 So. 2d 794, 797-98 ( A l a . 1 9 8 9 ) ;
A l a
.Code 1975, § 1 2 - 2 1 - 1 2 . ' "
M u t u a l A s s u r a n c e , I n c . v. S c h u l t e , 970 So. 2d 292, 295 ( A l a .
2007)
( q u o t i n g Dow v. A l a b a m a D e m o c r a t i c
P a r t y ,
8
97 So. 2d
1035, 1038-39 ( A l a .
2 0 0 4 ) ) .
I I I .
A n a l y s i s
"To
h a v e
a
v a l i d
c l a i m
u n d e r
t h e
A l a b a m a
M e d i c a l
L i a b i l i t y
A c t ,
t h e
[ p l a i n t i f f ]
must
p r o v i d e
e v i d e n c e
i n d i c a t i n g
t h a t t h e n e g l i g e n c e a l l e g e d i s t h e p r o x i m a t e and
p r o b a b l e c a u s e o f [ t h e p l a i n t i f f ' s ] i n j u r y ; a mere
p o s s i b i l i t y
o r one p o s s i b i l i t y among o t h e r s i s i n s u f f i c i e n t
t o meet t h e
b u r d e n o f p r o o f . "
L y o n s v. V a u g h a n R e g ' l Med. C t r . , L L C , [Ms.
12
1071224
1 0 7 1 5 0 2 ,
A p r i l
24,
2009]
___
So.
3d
___ , ___
( A l a . 2009)
( c i t i n g
S o r r e l l
v.
K i n g ,
946
So.
2d
854,
862
( A l a .
2 0 0 6 ) ) .
G r a v e s
c o n t e n d s
t h a t
t e s t i m o n y
f r o m
Dr.
B u c k l e y ' s
2004
d e p o s i t i o n
c o n s t i t u t e s
s u b s t a n t i a l
e v i d e n c e
t h a t
t h e
IV
i n f i l t r a t i o n p r o b a b l y
c a u s e d h e r
i n j u r y .
B r o o k w o o d
c o u n t e r s
t h a t ,
i n c o n t e x t ,
Dr.
B u c k l e y ' s 2004
d e p o s i t i o n
t e s t i m o n y ,
when
c o n s i d e r e d
w i t h
h i s
2008
v i d e o
t e s t i m o n y ,
d o e s
n o t
e s t a b l i s h
s u b s t a n t i a l e v i d e n c e o f
c a u s a t i o n .
The
p e r t i n e n t p o r t i o n s
o f Dr.
B u c k l e y ' s 2004
d e p o s i t i o n
p r o v i d e
as
f o l l o w s :
"Q.
When d i d y ' a l l
f i r s t
see
[ G r a v e s ] ?
"A.
W e l l ,
t h e
f i r s t
t i m e
I
saw
h e r
was
on
December 5,
2000.
"Q.
A l l r i g h t s i r . And
d i d you
o b t a i n a h i s t o r y a t
t h a t
t i m e ?
"A.
Y e s .
F o r
r e a s o n s
w h i c h
had
t o
do
w i t h
t h e
n a t u r e
o f t h e c o n d i t i o n , I d i d n ' t
s h a l l we
s a y ,
e x p l o r e
t o o
d e e p l y
t h e
c i r c u m s t a n c e s
s u r r o u n d i n g
t h e
o r i g i n a l
i n j u r y
b e c a u s e
t h a t
had h a p p e n e d a b o u t f i v e months p r e v i o u s l y .
And
s h e ' d
a l s o
a l r e a d y
b e e n
o p e r a t e d
on.
So
I
d i d n ' t
t h i n k
t h a t
b e l a b o r i n g
t h o s e p o i n t s
was
g o i n g
t o be
p a r t i c u l a r l y
h e l p f u l .
"But
my
u n d e r s t a n d i n g
was
she had
an I.V.
w h i c h
i n f i l t r a t e d
and
w h i c h
r e s u l t e d i n some
d o r s a l
f i b r o s i s and
t h a t she had u n d e r g o n e an
e x t e n s o r
t e n d o n
t e n d o l y s i s
and
r e l e a s e
o f some o f
t h e
13
1071224
m e t a c a r p o p h a l a n g e a l
j o i n t
c a p s u l e s ,
and
a l s o
had
an
i n t r i n s i c
r e l e a s e o f t h e
r i g h t h a n d .
f i
"Q.
The
h i s t o r y
o f
t h e
I.V.
i n f i l t r a t i o n
was
t h a t
r e f e r r i n g
b a c k
t o
A u g u s t
2000
a t
B r o o k w o o d
H o s p i t a l ?
"A.
T h a t was
my
u n d e r s t a n d i n g ,
y e s .
"Q.
Dr.
B u c k l e y ,
do
you
h a v e
an
o p i n i o n
as
t o
w h e t h e r t h e
I.V.
i n f i l t r a t i o n
i n A u g u s t o f 2000
p r o b a b l y
c a u s e d t h e
i n j u r y and damage t h a t
you
saw
w i t h r e g a r d
t o h e r
r i g h t u p p e r
e x t r e m i t y ?
f i
"A.
W e l l ,
as you
a r e a w a r e , I have o n l y
h i s t o r y
t o
go
by.
"Q.
Y e s , s i r .
"A.
And
s i n c e
I h a d
s e e n h e r
a f t e r
s e v e r a l
t h i n g s
had
t a k e n p l a c e ,
I'm
somewhat r e m o v e d f r o m
t h e
o r i g i n a l e v e n t .
B u t
t h a t was
t h e
o n l y
h i s t o r y
t h [ a t ]
I e v e r a c h i e v e d ,
I e v e r o b t a i n e d ,
and
I
d i d n ' t
e v e r
r e c e i v e
any
i n f o r m a t i o n
t o
t h e
c o n t r a r y .
So
I have
t o assume
t h a t
t h a t
was
t h e
s i g n a l
e v e n t .
"Q.
And
when
you
s a y
' s i g n a l
e v e n t , ' what
do
you
mean by
t h a t ?
"A.
T h a t
was
t h e
p o i n t
a t
w h i c h
h e r
d i s c o m f o r t
b e g a n .
14
1071224
"Q.
[ G r a v e s ' s c o u n s e l ]
a s k e d you a b o u t w h e t h e r you
had made a d e t e r m i n a t i o n as t o w h e t h e r t h e I.V.
i n f i l t r a t i o n s
a t i s s u e i n t h i s
c a s e
p r o b a b l y
c a u s e d t h e i n j u r y t h a t y o u , D r . S t a n d e f f e r , and
Dr.
S p r u i l l
[
9
] a l l t r e a t e d .
And f i r s t o f f
I want
t o
a s k you a
l i t t l e
b i t a b o u t
t h a t
l i n e o f
q u e s t i o n i n g .
" E a r l y
on you i n d i c a t e d t o us
t h a t t h e
i n f o r m a t i o n
c o n t a i n e d
i n y o u r
c h a r t
a b o u t t h e
p a t i e n t ' s
p r o b l e m
w i t h
w h i c h
she
p r e s e n t e d
b e i n g
r e l a t e d t o an i n f i l t r a t i o n was by way o f
t h e p a t i e n t ' s own h i s t o r y ; i s t h a t
c o r r e c t ?
"A.
C o r r e c t .
"Q.
Y o u r
i n t e r e s t i s n o t i n m a k i n g some
f o r e n s i c
d e t e r m i n a t i o n
a b o u t what
c a u s e d t h e
u l t i m a t e
i n j u r y ?
"A.
C o r r e c t .
I n s o f a r
as
t h e
l a c k
o f
s u c h
i n f o r m a t i o n d o e s n ' t i m p i n g e upon t h e t r e a t m e n t
I'm d e l i v e r i n g .
And b e c a u s e I was s e e i n g h e r
a t
a
t i m e
s e v e r a l
months
f r o m
t h e
i n c i t i n g
e v e n t ,
and
s i n c e
t h e
c h a n g e s
t h a t
h a d
e s t a b l i s h e d
--
h a d
b e e n
e s t a b l i s h e d
was
c h r o n i c , i t
d i d n ' t
r e a l l y make a g r e a t
d e a l o f
d i f f e r e n c e what t h e o r i g i n a l
c i r c u m s t a n c e
was.
What
I
was
c o n f r o n t e d
w i t h
was
a
r a t h e r
a g g r e s s i v e
d o r s a l
f i b r o s i s
t h a t
was, as i t
t u r n s o u t , l a r g e l y n o t a m e n a b l e t o
t r e a t m e n t .
"Q.
Yes
s i r .
A n d
f r o m
y o u r
p e r s p e c t i v e ,
y o u r
c o n c e r n was t r e a t i n g a c o n d i t i o n t h a t showed up
on
y o u r
d o o r s t e p ,
so
t o
s p e a k ,
and n o t
d e t e r m i n i n g
u l t i m a t e l y what c a u s e d i t ?
"A.
C o r r e c t .
9 T h i s
i s a
r e f e r e n c e
t o D r . W e s l e y
S p r u i l l ,
a
p a i n -
management
s p e c i a l i s t .
15
1071224
"Q.
And
you
a r e
n o t
c o m i n g i n h e r e t o d a y t o
o f f e r
any
t e s t i m o n y
t o
t h e
e f f e c t
t h a t
you
now
b e l i e v e
t h a t
what
o c c u r r e d
a t
B r o o k w o o d
H o s p i t a l
i n A u g u s t 2000 c a u s e d t h e
i n j u r y
t h a t
you
t r e a t e d ; i s t h a t
c o r r e c t ?
"A.
C o r r e c t .
As
I s a i d
e a r l i e r ,
t h a t
was
what
I
was
t o l d ,
and
t h a t
was
r e a s o n a b l e
and
c o n s i s t e n t
w i t h
t h e
c i r c u m s t a n c e s
as
t h e y
p r e s e n t e d
t h e m s e l v e s
t o
me.
And
so
I
d i d n ' t
f e e l
i t n e c e s s a r y t o e x p l o r e
t h a t f u r t h e r .
"Q.
S u r e .
And
l e t me
a s k
you
t h i s ,
Dr.
B u c k l e y .
D i d M r s .
G r a v e s g i v e t h a t h i s t o r y t o you
a t
t h e
t i m e
she
f i r s t
p r e s e n t e d
a b o u t
t h e
I.V.
i n f i l t r a t i o n ,
o r
was
i t by
t h e
way
o f
some
o t h e r
d o c u m e n t a t i o n ?
"A.
No.
I
b e l i e v e ,
j u d g i n g
f r o m
t h e
d i c t a t i o n
w h i c h
I p r e p a r e d
a t
t h e
t i m e
o f
t h e
o r i g i n a l
v i s i t ,
t h a t
i n f o r m a t i o n
came
t o
l i g h t
d u r i n g
o u r
i n i t i a l
c o n t a c t .
"Q.
And
any
i n d i c a t i o n i n t h e
c h a r t
t h a t t h e r e
may
be
some
p o t e n t i a l
r e l a t i o n s h i p b e t w e e n
t h e
i n j u r y
t h a t
you
were
t r e a t i n g
and
t h e
i n f i l t r a t i o n
t h a t
o c c u r r e d
i s
n o t
meant
t o
r e f l e c t
a d e t e r m i n a t i o n
by
you
t h a t t h e r e
i s a
c a u s a l r e l a t i o n s h i p , b u t
i n s t e a d i s i n t e n d e d
t o
r e f l e c t p a t i e n t - h i s t o r y
i n f o r m a t i o n ?
"A.
I t h i n k I a g r e e w i t h t h a t
s t a t e m e n t .
"Q.
I
know
t h a t
was
somewhat
o f
a
c o n v o l u t e d
q u e s t i o n .
And
t h e r e a s o n I'm
a s k i n g
i t i s
-¬
"A.
May
I
s a y
t h a t
I
do
n o t
h a v e
an
o p i n i o n
i n d e p e n d e n t o f t h e
i n f o r m a t i o n
I r e c e i v e d
f r o m
M r s .
G r a v e s a b o u t t h e c a u s e o f h e r
p r o b l e m .
16
1071224
"Q.
I s e e . So you w o u l d n o t s i t h e r e t o d a y and s a y
t h a t
t h e
i n f i l t r a t i o n
p r o b a b l y
c a u s e d
t h e
i n j u r y w h i c h you
t r e a t e d ?
"A.
W e l l , I g u e s s t h a t ' s a c t u a l l y what I w o u l d s a y .
B u t I w o u l d s a y i t b e c a u s e o f t h e
i n f o r m a t i o n
t h a t
I
o b t a i n e d
f r o m my
o n g o i n g
d i s c u s s i o n s
w i t h
S h e l v i a G r a v e s .
"Q.
Okay.
So b a s e d on p a t i e n t h i s t o r y and -¬
"A. Y e s .
"Q.
--
b a s e d
on
t h e
i d e a
t h a t
you
h a v e n ' t
i n d e p e n d e n t l y i n v e s t i g a t e d -¬
"A.
C o r r e c t .
"Q.
-- a n d have no o t h e r
i n f o r m a t i o n
w i t h w h i c h t o
c o m p a r e ?
"A.
T h a t i s c o r r e c t .
"Q.
What i n y o u r
o p i n i o n
w o u l d
c a u s e t h e t y p e o f
s c a r
t i s s u e and
f i b r o s i s
t h a t Dr.
S t a n d e f f e r
d e s c r i b e d
t h a t he e n c o u n t e r e d ?
"A.
W e l l ,
I
t h i n k
I
c o u l d
a n s w e r
t h a t
more
a c c u r a t e l y b y s a y i n g
t h a t t h e i n f i l t r a t i o n o f
some
i r r i t a t i n g s u b s t a n c e c o u l d .
I d o n ' t know
t h a t i t n e c e s s a r i l y w o u l d , and c e r t a i n l y
t h e r e
a r e o t h e r p o t e n t i a l c a u s e s as w e l l .
So I d o n ' t
t h i n k
t h e r e ' s
a n y t h i n g
t h a t
i s
s u f f i c i e n t l y
s p e c i f i c
a b o u t
h i s o p e r a t i v e
f i n d i n g s
t h a t
w o u l d a l l o w one t o s a y w i t h
c e r t a i n t y t h a t t h e
c o n d i t i o n
c o u l d
h a v e b e e n c a u s e d
o n l y b y t h e
e v e n t i n q u e s t i o n .
B u t I t h i n k t o e s t a b l i s h
s u c h a r e l a t i o n s h i p i s p r o b a b l y
r e a s o n a b l e .
17
1071224
"Q.
A l l r i g h t s i r .
The
h i s t o r y t h a t S h e l v i a G r a v e s
gave you a b o u t t h e
i n f i l t r a t i o n
o f t h e
I.V.,
o r
t h e
e x t r a v a s a t i o n ,
was
c o n s i s t e n t
w i t h
t h e
i n j u r y Dr.
S t a n d e f f e r
d e s c r i b e d
and
t h e
i n j u r y
you
a l s o
f o u n d when
you
went
i n
t o
do
y o u r
s u r g e r y ?
"A.
W e l l ,
i t i s c e r t a i n l y c o n s i s t e n t
w i t h what
Dr.
S t a n d e f f e r
d e s c r i b e d .
As
you
p o i n t e d
o u t ,
o r
as
was
p o i n t e d
o u t
e a r l i e r ,
by
t h e
t i m e
I
saw
h e r
I
d o n ' t
t h i n k
i t w o u l d
be
p o s s i b l e
t o
d i s t i n g u i s h b e t w e e n
p o s t o p e r a t i v e
c h a n g e s
and
t h e
o r i g i n a l i n j u r y .
"Q.
A l l r i g h t ,
s i r .
And
i f we
assume
t h a t
t h e r e
was
no
o t h e r
h i s t o r y
o f
i n j u r y , damage,
o r
t r a u m a t o h e r
r i g h t h a n d o t h e r
t h a n
t h i s
I.V.
t h a t
e x t r a v a s a t e d ,
a s s u m i n g
t h a t
t o
be
t r u e ,
I ' l l
a s k
you w h e t h e r o r n o t
i t i s p r o b a b l e
t h a t
t h e
I.V.
i n f i l t r a t i o n
c a u s e d t h e
i n j u r y ?
"A.
A g a i n m a k i n g a l l o f t h e a s s u m p t i o n s t h a t we're
aware
o f ,
I
t h i n k
t h a t
i s
a
r e a s o n a b l e
s t a t e m e n t .
"Q.
J u s t
b r i e f l y ,
Dr.
B u c k l e y .
Assume t h a t
t h e r e
was
no
p r i o r i n j u r y , damage, o r t r a u m a
t o
t h e
r i g h t h a n d ; assume t h a t when [ G r a v e s ] went i n t o
t h e B r o o k w o o d H o s p i t a l , she
had
n o t
e x p e r i e n c e d
any
p a i n o r d i s c o m f o r t
w i t h r e g a r d
t o h e r
r i g h t
h a n d ;
assume
t h a t
t h e
I.V.
was
i n s e r t e d
and
t h a t
she
s t a r t e d
e x p e r i e n c i n g
s e v e r e
b u r n i n g
p a i n
i n h e r
r i g h t h a n d s u b s e q u e n t
t o
t h e
I.V.
i n s e r t i o n ,
and
t h a t
t h e r e
was
s w e l l i n g o f
t h e
r i g h t
h a n d
t h a t
was
g r o s s l y
a p p a r e n t ;
and
assume
t h a t
h e r
symptoms
w i t h
r e g a r d
t o
h e r
r i g h t h a n d p e r s i s t e d f r o m t h a t p o i n t
f o r w a r d .
18
1071224
" I f
we make t h o s e
a s s u m p t i o n s
as
b e i n g
t r u e ,
I ' l l
a s k
you
w h e t h e r
o r
n o t
t h e
I.V.
i s
p r o b a b l y
t h e
s o u r c e
o r
e t i o l o g y
o f h e r
i n j u r y
and damage i n h e r
r i g h t hand?
f i
"A.
Y e s . "
( E m p h a s i s added.)
The
p e r t i n e n t
p o r t i o n s
o f
Dr.
B u c k l e y ' s
2008
v i d e o
t e s t i m o n y p r o v i d e as
f o l l o w s :
"Q.
Dr.
B u c k l e y ,
g i v e n t h e p a t i e n t h i s t o r y i n
t h i s
c a s e
as
w e l l
as
y o u r
own
k n o w l e d g e
and
e x p e r t i s e
i n h a n d
i n j u r i e s
and
t h e
c l i n i c a l
f e a t u r e s
t h a t
you
e n c o u n t e r e d
d u r i n g
y o u r
s u r g e r y on
[ G r a v e s ] , do you h a v e an o p i n i o n
as
t o
w h e t h e r
t h e
I V
i n f i l t r a t i o n
i n A u g u s t
o f
2000
most
p r o b a b l y
i s
t h e
s o u r c e
o r
s i g n a l
e v e n t
o f t h i s
i n j u r y ?
f i
"A.
The
h i s t o r y
t h a t
I
was
p r o v i d e d
c e r t a i n l y
s u g g e s t s
a
r e l a t i o n s h i p
i n
t e r m s
o f
t i m e
b e t w e e n t h e o n s e t o f t h e p r o c e s s w h i c h
r e s u l t e d
i n
my
s e e i n g
h e r
and
o p e r a t i n g upon
h e r
and
s u b s e q u e n t l y
t r e a t i n g
h e r
and
an
e v e n t
i n v o l v i n g an IV i n f i l t r a t e .
To t h e e x t e n t t h a t
t e m p o r a l
c o n n e c t i o n
i s
a c c u r a t e
and
t o
t h e
e x t e n t
t h a t
n o t h i n g
e l s e
h a p p e n e d
w h i c h
r e p r e s e n t s
a
p l a u s i b l e
e x p l a n a t i o n
f o r
t h e
p r o c e s s ,
i t w o u l d seem r e a s o n a b l e
t o i m p l i c a t e
t h e
i n f i l t r a t i o n .
As
I s a i d
e a r l i e r ,
I d o n ' t
t h i n k
t h e r e ' s
a n y t h i n g
a b o u t
t h e
s i t u a t i o n
I
e n c o u n t e r e d
t h a t
was
c h a r a c t e r i s t i c
o f
an
I V
i n f i l t r a t i o n .
19
1071224
"Q.
G i v e n
e v e r y t h i n g
t h a t
you know
s i t t i n g
h e r e
t o d a y ,
I
t a k e
i t t h a t
i t i s r e a s o n a b l e t o
c o n c l u d e
t h a t t h e s o u r c e o f h e r i n j u r y i s
t h e
I V
i n f i l t r a t i o n ?
"A. The -- I d o n ' t
t h i n k
t h a t I c a n s a y a n y t h i n g
more t h a n I j u s t s a i d .
I t h i n k
t h a t i t
i s -¬
t h e
r e l a t i o n s h i p
c e r t a i n l y i s p o s s i b l e , b u t
w h e t h e r
o r n o t i t i s p r o b a b l e
i s
a n o t h e r
m a t t e r ,
and
I
d o n ' t
t h i n k
I
c a n make
a
s u p p o r t a b l e s t a t e m e n t i n t h a t
r e g a r d .
"Q.
D o c t o r , l e t
me
j u s t -- I w a n t e d t o r e f e r
b a c k
t o t h e d e p o s i t i o n
t h a t you gave i n t h i s
c a s e
some t i m e ago and s e e i f I c a n r e f r e s h
y o u r
r e c o l l e c t i o n t o some
e x t e n t .
"On page 32, t h e d e f e n s e l a w y e r was
a s k i n g
you q u e s t i o n s ,
and n e a r t h e b o t t o m o f page 32,
he s t a t e d o r he q u e s t i o n e d y o u : 'So, you w o u l d
n o t
s i t h e r e
t o d a y
and
s a y
t h a t
t h e
i n f i l t r a t i o n
p r o b a b l y c a u s e d t h e i n j u r y w h i c h
you t r e a t e d ? '
And y o u r a n s w e r ,
' W e l l , I g u e s s
t h a t ' s
a c t u a l l y what I w o u l d s a y , b u t I w o u l d
s a y
i t b e c a u s e
o f t h e
i n f o r m a t i o n
t h a t
I
o b t a i n e d
f r o m
my
o n g o i n g
d i s c u s s i o n s
w i t h
S h e l v i a G r a v e s . '
I s t h a t
s t i l l
y o u r t e s t i m o n y
t o d a y ?
"A. Y e s .
I n o t h e r w o r d s , t h e r e l a t i o n s h i p upon
w h i c h
t h i s
s t a t e m e n t
i s b a s e d
i s
l a r g e l y
h i s t o r i c a l , n o t b a s e d upon any s o r t o f f o r e n s i c
a s s e s s m e n t
o f
t h e
s u r g i c a l
f i n d i n g s
o r
h i s t o l o g i c f i n d i n g s , j u s t t h a t she s a i d t h i s i s
what h a p p e n e d , and I assumed t h a t was c o r r e c t .
"Q.
I u n d e r s t a n d .
"And
you
d i d n ' t
u n d e r t a k e
any
f o r e n s i c
e x a m i n a t i o n
t o d e t e r m i n e
t h e c a u s e
b e c a u s e ,
20
1071224
q u i t e
f r a n k l y , you were
more
i n t e r e s t e d i n
c a r i n g f o r
h e r and t r e a t i n g h e r and s e e i n g what
you
c o u l d do t o make h e r l i f e
b e t t e r ; i s t h a t
f a i r ?
"A.
C o r r e c t . "
( E m p h a s i s added.)
I t i s a p p a r e n t
f r o m t h e d e p o s i t i o n
t e s t i m o n y
t h a t D r .
B u c k l e y
t e s t i f i e d
i n 2004 t h a t t h e I V i n f i l t r a t i o n
p r o b a b l y
c a u s e d t h e i n j u r y t o G r a v e s ' s r i g h t h a n d .
D r . B u c k l e y
s t a t e d
t h a t
he
d i d " n o t have
an
o p i n i o n
i n d e p e n d e n t
o f t h e
i n f o r m a t i o n I r e c e i v e d f r o m M r s . G r a v e s a b o u t t h e c a u s e o f
h e r
p r o b l e m , " b u t t h i s i s n o t s u r p r i s i n g g i v e n
t h a t D r .
B u c k l e y
was
n o t t h e f i r s t
p h y s i c i a n t o s e e G r a v e s
f o l l o w i n g t h e I V
i n f i l t r a t i o n .
"'The
e x p e r t
o p i n i o n
t e s t i m o n y
o f a
p h y s i c i a n - w i t n e s s
as t o t h e
c o n d i t i o n ,
d i a g n o s i s ,
p r o g n o s i s
o r o t h e r w i s e
o f
h i s
p a t i e n t , whom he h a s p e r s o n a l l y
e x a m i n e d ,
may be b a s e d i n p a r t on t h e h i s t o r y o f
t h e
c a s e ,
i n c l u d i n g b o t h h i s p r e s e n t
and p a s t
c o n d i t i o n and symptoms as r e l a t e d b y t h e
p a t i e n t
t o
t h e
p h y s i c i a n - w i t n e s s
i n
c o n n e c t i o n
w i t h ,
and as
p a r t
o f , t h e
e x a m i n a t i o n . ' "
Drummond Co. v. B o s h e l l , 641 So. 2d 1240 , 1243 ( A l a . 1994
)
( q u o t i n g
C h a r l e s
W.
Gamble,
M c E l r o y ' s
A l a b a m a
E v i d e n c e
§ 1 1 0 . 0 1 ( 1 ) ( 4 t h
e d .
1 9 9 1 ) ) .
21
1071224
Among o t h e r t h i n g s , B r o o k w o o d c o n t e n d s t h a t D r . B u c k l e y ' s
2004
d e p o s i t i o n
t e s t i m o n y
d o e s n o t c o n s t i t u t e
s u b s t a n t i a l
e v i d e n c e o f c a u s a t i o n b e c a u s e , i t
a r g u e s , D r . B u c k l e y made
i t
c l e a r i n
b o t h t h e 2004 d e p o s i t i o n and t h e 2008 d e p o s i t i o n t h a t
h i s c o n c l u s i o n was b a s e d on p a t i e n t h i s t o r y and was n o t meant
t o be a f o r e n s i c
a s s e s s m e n t o f c a u s a t i o n .
M e d i c a l - e x p e r t
t e s t i m o n y i s
n o t r e n d e r e d
i n v a l i d , h o w e v e r , s i m p l y b e c a u s e
i t
i s b a s e d upon a p a t i e n t ' s h i s t o r y .
"'The
l a w r e c o g n i z e s t h a t , i n t h e p r a c t i c e
o f m e d i c i n e , a d i a g n o s i s o f t h e a i l m e n t may
i n c l u d e
a
p e r s o n a l
e x a m i n a t i o n
o f t h e
p a t i e n t
by
a l l t h e methods
known
t o
s c i e n c e , and a l s o t h e h i s t o r y o f t h e c a s e ,
as g i v e n by t h e p a t i e n t o r o t h e r
e x a m i n i n g
p h y s i c i a n .
" ' T h i s h i s t o r y may i n c l u d e a
s t a t e m e n t
o f
p r e s e n t
a n d
p a s t
symptoms
A
p r o f e s s i o n a l
o p i n i o n
as t o t h e
n a t u r e ,
c a u s e ,
and e x t e n t o f t h e a i l m e n t ,
b a s e d
upon a l l t h e s e m a t t e r s i n c o n n e c t i o n
w i t h
and as p a r t o f t h e p e r s o n a l e x a m i n a t i o n o f
t h e p a t i e n t , i s c o m p e t e n t
e v i d e n c e . ' "
T i d b a l l v . O r k i n E x t e r m i n a t i n g Co., 583 So. 2d 239, 241 ( A l a .
1991)
( q u o t i n g S t a t e R e a l t y Co. v . L i g o n , 218 A l a . 5 4 1 , 543¬
44, 119 So. 672, 674
( 1 9 2 9 ) ) .
I t i s t r u e t h a t t h e f a c t s u n d e r l y i n g a p a t i e n t ' s m e d i c a l
h i s t o r y may be -- and i n t h i s c a s e a r e -- i n d i s p u t e , b u t
t h e
22
1071224
v e r a c i t y o f t h e h i s t o r y r e c o u n t e d b y a p a t i e n t i s a m a t t e r f o r
t h e
j u r y ' s
d e t e r m i n a t i o n .
Dr. B u c k l e y ,
l i k e
any p h y s i c i a n
b a s i n g
an
o p i n i o n on
p a t i e n t
h i s t o r y ,
was
b e i n g
a s k e d
t o
assume t h a t G r a v e s h a d a c c u r a t e l y r e l a t e d h e r m e d i c a l
h i s t o r y
and,
b a s e d
on
t h a t
a s s u m p t i o n ,
t o g i v e h i s o p i n i o n as t o
w h e t h e r t h e I V i n f i l t r a t i o n p r o b a b l y c a u s e d G r a v e s ' s
i n j u r y .
On t h i s b a s i s ,
Dr. B u c k l e y c o n c l u d e d i n h i s 2004 d e p o s i t i o n
t h a t i t
was t h e p r o b a b l e
c a u s e .
Dr.
B u c k l e y ' s
t e s t i m o n y i n t h i s
r e g a r d i s no
d i f f e r e n t
t h a n
i f he
was
t o
o f f e r
h i s
o p i n i o n
i n
r e s p o n s e
t o
h y p o t h e t i c a l q u e s t i o n s b a s e d upon e v i d e n c e i n t h e r e c o r d .
An
e x p e r t w i t n e s s "may
g i v e an o p i n i o n b a s e d upon
h y p o t h e t i c a l
q u e s t i o n i n g as t o f a c t s a l r e a d y i n e v i d e n c e , o r e v i d e n c e t o be
s u b s e q u e n t l y a d m i t t e d . "
C r a w f o r d v . H a l l , 531 So. 2d 874, 875
( A l a .
1 9 8 8 ) .
I n l i k e manner, Dr. B u c k l e y a c c e p t e d t h e h i s t o r y
G r a v e s p r o v i d e d h i m and f o r m e d an o p i n i o n -- b a s e d upon t h a t
i n f o r m a t i o n , h e r c o n d i t i o n , and h i s m e d i c a l k n o w l e d g e -- t h a t
t h e I V i n f i l t r a t i o n p r o b a b l y c a u s e d G r a v e s ' s
i n j u r y .
I n
f a c t ,
Dr.
B u c k l e y
o f f e r e d
t h e same
c o n c l u s i o n i n
r e s p o n s e t o h y p o t h e t i c a l q u e s t i o n s a s k e d b y G r a v e s ' s
c o u n s e l .
B r o o k w o o d c o n t e n d s
t h a t Dr. B u c k l e y ' s
o p i n i o n e l i c i t e d
as a
23
1071224
r e s u l t o f t h e h y p o t h e t i c a l q u e s t i o n s i s n o t
r e l i a b l e
b e c a u s e
" t h e e x p e r t may
n o t g i v e h i s o p i n i o n u n l e s s t h o s e
f a c t s h a v e
b e e n
p r o p e r l y
h y p o t h e s i z e d
b e f o r e
t h e
e x p e r t
w i t n e s s . "
B o s h e l l ,
641
So.
2d
a t
1243.
B r o o k w o o d
a r g u e s
t h a t
t h e
h y p o t h e t i c a l q u e s t i o n s p o s e d t o Dr. B u c k l e y d i d n o t p r o p e r l y
h y p o t h e s i z e
t h e
f a c t s b e c a u s e ,
i t s a y s ,
t h e q u e s t i o n s
a s k e d
h i m
t o assume
t h a t
" t h e r e was
no
p r i o r
i n j u r y ,
damage,
o r
t r a u m a
t o
t h e
r i g h t
h a n d . "
B r o o k w o o d
n o t e s
t h a t t h e r e
i s
e v i d e n c e
i n t h e
r e c o r d
i n d i c a t i n g
t h a t G r a v e s ' s
h a n d s were
s w o l l e n b e f o r e t h e IV was
i n s e r t e d .
B r o o k w o o d ' s
a r g u m e n t
a g a i n
m i s t a k e n l y
assumes
t h a t
m e d i c a l - e x p e r t
t e s t i m o n y
does
n o t
e s t a b l i s h
s u b s t a n t i a l
e v i d e n c e o f c a u s a t i o n when i t i s b a s e d upon f a c t s t h a t a r e i n
d i s p u t e .
A " p r o p e r l y h y p o t h e s i z e d " q u e s t i o n n e e d n o t be b a s e d
upon u n d i s p u t e d f a c t s ; i t i s enough t h a t i t i s b a s e d on
" f a c t s
a l r e a d y i n e v i d e n c e , o r e v i d e n c e t o be s u b s e q u e n t l y
a d m i t t e d . "
C r a w f o r d ,
531
So.
2d
a t
875.
The
q u e s t i o n s
p o s e d
t o
Dr.
B u c k l e y a c c u r a t e l y r e f l e c t e d e v i d e n c e i n t h e r e c o r d s u b m i t t e d
by G r a v e s .
The
f a c t t h a t t h e r e i s a l s o e v i d e n c e i n t h e r e c o r d
t h a t
c o n f l i c t s
w i t h G r a v e s ' s
t e s t i m o n y
s i m p l y
r e f l e c t s
t h e
d i s p u t e t h a t must be r e s o l v e d by a j u r y .
The manner i n w h i c h
24
1071224
t h e
j u r y
r e s o l v e s
t h e
c o n f l i c t
w i l l
a f f e c t
t h e
u l t i m a t e
v i a b i l i t y
o f
Dr.
B u c k l e y ' s
o p i n i o n ,
b u t
t h e
f a c t u a l
d i s p u t e
d o e s
n o t
a f f e c t w h e t h e r
a
c o n c l u s i o n
drawn
by
Dr.
B u c k l e y
b a s e d
upon
G r a v e s ' s
v e r s i o n
o f
t h e
f a c t s
c o n s t i t u t e s
s u b s t a n t i a l
e v i d e n c e
f o r p u r p o s e s
o f
t h e
summary
j u d g m e n t
e n t e r e d
h e r e .
B r o o k w o o d
f u r t h e r
c o n t e n d s
t h a t
r e g a r d l e s s
o f
how
Dr.
B u c k l e y ' s 2004 d e p o s i t i o n
t e s t i m o n y
i s c o n s i d e r e d ,
h i s
2008 v i d e o
d e p o s i t i o n s e t t l e s t h e m a t t e r b e c a u s e he
t e s t i f i e d
i n t h e
l a t t e r
d e p o s i t i o n m e r e l y t h a t i t was
" p o s s i b l e , " r a t h e r
t h a n
" p r o b a b l e , "
t h a t
t h e
I V
i n f i l t r a t i o n
c a u s e d
G r a v e s ' s
i n j u r y .
Our
c a s e s make i t a b u n d a n t l y c l e a r , h o w e v e r , t h a t
a
p o r t i o n o f t h e
t e s t i m o n y
o f t h e
p l a i n t i f f ' s
e x p e r t
c a n n o t
be
v i e w e d
" a b s t r a c t l y , i n d e p e n d e n t l y ,
and
s e p a r a t e l y
f r o m
t h e
b a l a n c e
o f h i s t e s t i m o n y . "
H i n e s v. A r m b r e s t e r ,
477
So.
2d
302,
304
( A l a . 1 9 8 5 ) .
See,
e.g.,
Downey v. M o b i l e
I n f i r m a r y
Med.
C t r . ,
662
So.
2d
1152,
1154
( A l a .
1
995)
( n o t i n g
t h a t
" [ t ] h i s
C o u r t has
c o n s i s t e n t l y h e l d t h a t t h e
t e s t i m o n y
o f
an
e x p e r t w i t n e s s
i n a m e d i c a l
m a l p r a c t i c e c a s e must be v i e w e d
as
a
w h o l e ,
and
t h a t
a
p o r t i o n
o f
i t
s h o u l d
n o t
be
v i e w e d
a b s t r a c t l y ,
i n d e p e n d e n t l y ,
o r s e p a r a t e l y f r o m t h e b a l a n c e
o f
25
1071224
t h e e x p e r t ' s
t e s t i m o n y " ) .
I n o t h e r w o r d s , Dr. B u c k l e y ' s 2008
v i d e o
d e p o s i t i o n t e s t i m o n y must be v i e w e d i n i t s e n t i r e t y , as
w e l l as i n c o n t e x t
w i t h t h e t e s t i m o n y he p r o v i d e d
i n h i s 2004
d e p o s i t i o n .
I t
i s t r u e
t h a t
Dr. B u c k l e y
s t a t e d
i n h i s 2008
v i d e o
d e p o s i t i o n t h a t " t h e r e l a t i o n s h i p [ b e t w e e n t h e I V i n f i l t r a t i o n
and G r a v e s ' s i n j u r y ] c e r t a i n l y i s p o s s i b l e , b u t w h e t h e r o r n o t
i t i s p r o b a b l e i s a n o t h e r m a t t e r , and I d o n ' t t h i n k I c a n make
a s u p p o r t a b l e
s t a t e m e n t i n t h a t r e g a r d . "
When c o n f r o n t e d
w i t h
h i s
s t a t e m e n t
o f
p r o b a b i l i t y
f r o m
h i s 2004
d e p o s i t i o n ,
h o w e v e r , Dr. B u c k l e y d e f e n d e d h i s 2004 t e s t i m o n y ,
e x p l a i n i n g
t h a t " t h e r e l a t i o n s h i p upon w h i c h t h i s s t a t e m e n t
[ t h a t t h e I V
i n f i l t r a t i o n p r o b a b l y c a u s e d t h e i n j u r y ] i s b a s e d i s l a r g e l y
h i s t o r i c a l , n o t b a s e d upon any s o r t o f f o r e n s i c a s s e s s m e n t o f
t h e
s u r g i c a l f i n d i n g s o r h i s t o l o g i c f i n d i n g s , j u s t t h a t she
s a i d
t h i s i s what h a p p e n e d , and I assumed t h a t was
c o r r e c t . "
Thus, Dr. B u c k l e y s t a t e d i n 2008 -- as he d i d i n 2004 --
t h a t
a s s u m i n g
G r a v e s ' s
p a t i e n t
h i s t o r y was
a c c u r a t e ,
he
s t i l l
b e l i e v e d t h a t t h e I V i n f i l t r a t i o n p r o b a b l y c a u s e d h e r i n j u r y .
I n o t h e r w o r d s , Dr. B u c k l e y ' s 2008 v i d e o
d e p o s i t i o n
t e s t i m o n y
26
1071224
d o e s n o t
c o n t r a d i c t t h e
d e p o s i t i o n t e s t i m o n y
he
p r o v i d e d
i n
2004.
"'We
a r e t o v i e w t h e
[ e x p e r t ] t e s t i m o n y
as a w h o l e ,
and,
so
v i e w i n g
i t , d e t e r m i n e
i f t h e
t e s t i m o n y
i s
s u f f i c i e n t
t o
c r e a t e a r e a s o n a b l e
i n f e r e n c e o f t h e
f a c t t h e p l a i n t i f f
s e e k s
t o
p r o v e . ' "
G i l e s v. B r o o k w o o d H e a l t h S e r v s . ,
I n c . , 5 So.
3d
533,
550
( A l a . 2008)
( q u o t i n g H i n e s ,
477
So.
2d
a t
3 0 4 - 0 5 ) .
V i e w i n g
Dr.
B u c k l e y ' s
t e s t i m o n y
as
a w h o l e
and
v i e w i n g
t h e
e v i d e n c e
i n t h e
l i g h t most f a v o r a b l e
t o G r a v e s , we
c o n c l u d e
t h a t G r a v e s d e m o n s t r a t e d t h e e x i s t e n c e
o f a g e n u i n e i s s u e
as
t o
m e d i c a l
c a u s a t i o n
and
t h a t
t h e
t r i a l
c o u r t ' s
summary
j u d g m e n t a g a i n s t h e r
on
t h i s b a s i s t h e r e f o r e was
i n e r r o r .
I V .
C o n c l u s i o n
We
r e v e r s e t h e j u d g m e n t o f t h e
t r i a l c o u r t , and we remand
t h e c a u s e f o r f u r t h e r
p r o c e e d i n g s .
We
a l s o n o t e
t h a t G r a v e s
has
f i l e d
a m o t i o n
t o
s t r i k e
what she
c a l l s B r o o k w o o d ' s " S u r - R e p l y B r i e f . "
G r a v e s r e f e r s
t o
a l e t t e r B r o o k w o o d s e n t t o t h e
o f f i c e o f t h e c l e r k o f
t h i s
C o u r t a f t e r b r i e f i n g
c l o s e d i n t h i s c a s e i n w h i c h i t a l e r t e d
t h e C o u r t t o a c a s e t h e C o u r t r e l e a s e d a f t e r b r i e f i n g
c l o s e d ,
w h i c h B r o o k w o o d c l a i m e d
" d e a l [ t ] d i r e c t l y
w i t h
t h e
i s s u e
o f
27
1071224
s u f f i c i e n c y o f c a u s a t i o n t e s t i m o n y i n a m e d i c a l m a l p r a c t i c e
a c t i o n a n d i s d i r e c t l y on p o i n t w i t h B r o o k w o o d ' s p o s i t i o n i n
t h i s a p p e a l . "
1 0
G r a v e s ' s p r i m a r y o b j e c t i o n t o t h e s u b m i s s i o n
by
B r o o k w o o d
a p p e a r s
t o be t h e i n c l u s i o n
o f r e s p o n s e s t o
a r g u m e n t s a n d s t a t e m e n t s G r a v e s made i n
h e r r e p l y b r i e f .
We
f i n d G r a v e s ' s m o t i o n t o s t r i k e
w e l l t a k e n , a n d we
t h e r e f o r e
g r a n t i t .
MOTION TO STRIKE GRANTED; REVERSED AND REMANDED.
Cobb, C . J . ,
a n d L y o n s ,
S t u a r t , a n d B o l i n , J J . , c o n c u r .
1 0The c a s e
n o t e d by B r o o k w o o d i s Thompson v . P a t t o n , 6
So. 3d 1129 ( A l a .
2 0 0 8 ) , a n d a l t h o u g h i t
a d d r e s s e s t h e i s s u e
o f
c a u s a t i o n t e s t i m o n y , i t p r o v i d e s no more
a s s i s t a n c e i n
d e c i d i n g
t h i s c a s e t h a n s e v e r a l o t h e r c a s e s t h a t h a d a l r e a d y
b e e n c i t e d by t h e p a r t i e s i n t h e i r
b r i e f s .
28 | December 18, 2009 |
addecae2-9d8c-4817-93b8-4a3e33eaf5dd | Ex parte Synovus Trust Company, N.A., et al. PETITION FOR PERMISSION TO APPEAL, OR, IN THE ALTERNATIVE, PETITION FOR WRIT OF MANDAMUS (In re: Robert F. Raines et al. v. Synovus Trust Company, N.A., etal.) | N/A | 1080100 | Alabama | Alabama Supreme Court | Rel: 12/30/2009
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
____________________
1080100
____________________
Ex parte Synovus Trust Company, N.A., et al.
PETITION FOR WRIT OF MANDAMUS
(In re: Robert F. Raines et al.
v.
Synovus Trust Company, N.A., et al.)
(Walker Circuit Court, CV-07-301)
COBB, Chief Justice.
Synovus Trust Company, N.A. ("Synovus Trust"), Synovus
Investment Advisors, Inc., Richard E. Neumann, Carolyn G.
1080100
2
Dunkle, and Dan Davidson petition this Court for a writ of
mandamus directing the trial court to dismiss the claims
against them filed by Robert W. Raines, Ronald E. Raines, and
James E. Raines alleging breach of a fiduciary duty. We grant
the petition and issue the writ.
Facts and Procedural History
On August 9, 2007, Robert F. Raines ("Mr. Raines"), his
wife, Helen H. Raines ("Mrs. Raines"), and their three
children -- Robert W. Raines, Ronald E. Raines, and James E.
Raines ("the Raines children") -- filed this action against
Synovus Trust, Synovus Trust Corporation, Synovus Investment
Advisors, Inc., Richard E. Neumann, Carolyn G. Dunkle, and Dan
Davidson ("the defendants"). According to the allegations of
the Raineses' complaint, Mr. and Mrs. Raines, with the help of
the Raines children, operated the Jasper Bowling Center in
Jasper for over 20 years with substantial financial success.
The Raineses allege that Mr. and Mrs. Raines amassed an
investment portfolio containing a large amount of stock in
Wal-Mart Stores, Inc. ("Wal-Mart"), a corporation that
operates a chain of discount retail stores.
1080100
3
The Raineses allege that, on March 2, 2000, Neumann,
Dunkle, and Davidson, as agents of Synovus Trust Corporation,
approached Mr. and Mrs. Raines to solicit their banking and
investment business. The Raineses further contend that
Neumann, Dunkle, and Davidson represented to Mr. and Mrs.
Raines that, if they allowed Synovus Trust Corporation to
manage their money, Synovus Trust Corporation would generate
a five to eight percent return on their money, and that
Neumann, Dunkle, and Davidson could get such returns on the
Raineses' money "blindfolded" and "in their sleep." According
to the Raineses, Neumann, Dunkle, and Davidson further
represented that, most likely, they would generate 15 to 20
percent returns on Mr. and Mrs. Raines's investment. The
Raineses allege that Neumann, Dunkle, and Davidson presented
Mr. and Mrs. Raines with marketing material from Synovus Trust
Corporation showing that they could expect a 20 percent return
on their investment if they allowed Synovus Trust Corporation
to manage their money.
The Raineses further contend that Neumann, Dunkle, and
Davidson told Mr. and Mrs. Raines that they were invested "way
too heav[il]y" in Wal-Mart stock, i.e., that they had too much
1080100
4
Wal-Mart stock in their portfolios. According to the
Raineses, Neumann, Dunkle, and Davidson represented that, if
Mr. and Mrs. Raines would transfer their Wal-Mart stock and
other securities into a trust to be managed by Synovus Trust
Corporation, Synovus Trust Corporation would diversify Mr. and
Mrs. Raines's assets. The Raineses allege that Neumann,
Dunkle, and Davidson told Mr. and Mrs. Raines that, if they
allowed Synovus Trust Corporation to manage their investments,
none of the Raineses would have to work again because of the
money Synovus Trust Corporation would make for them. Neumann,
Dunkle, and Davidson allegedly told Mr. and Mrs. Raines that
Synovus Trust Corporation would "make a lot of money" for the
Raines family.
According to the Raineses' complaint, on March 31, 2000,
the Robert F. Raines Management Trust was created in reliance
on the representations of Neumann, Dunkle, Davidson, and other
agents of Synovus Trust Corporation. Mr. Raines contributed
approximately $1 million in securities and other assets to
this trust. Mr. Raines was the sole settlor of this trust,
which was revocable at any time. Mr. Raines and Synovus Trust
Corporation were named as trustees of the management trust.
1080100
It does not appear that the nonsettlor beneficiaries of
1
the Robert F. Raines Management Trust held powers of
withdrawal while the trust was revocable. See Ala. Code 1975,
§ 19-3B-603(b).
It does not appear that the nonsettlor beneficiaries of
2
the Helen H. Raines Management Trust held powers of withdrawal
while the trust was revocable. See Ala. Code 1975, §
19-3B-603(b).
5
Mr. and Mrs. Raines and the Raines children were named as
beneficiaries of this trust.1
The Raineses further allege in their complaint that, also
on March 31, 2000, Mrs. Raines created the Helen H. Raines
Management Trust in reliance on the representations of
Neumann, Dunkle, Davidson, and other agents of Synovus Trust
Corporation. Mrs. Raines contributed approximately $1 million
in securities and other assets to this management trust. Mrs.
Raines was the sole settlor of the trust, which, like the
Robert F. Raines Management Trust, was revocable at any time.
Mrs. Raines and Synovus Trust Corporation were named as
trustees of the Helen H. Raines Management Trust. Mr. and
Mrs.
Raines
and
the
Raines
children
were
named
as
beneficiaries of this trust.2
The Raineses allege that, in connection with the creation
of the Robert F. Raines Management Trust and the Helen H.
1080100
6
Raines Management Trust ("the trusts"), Mr. and Mrs. Raines
each entered into an investment agreement with Synovus Trust
Corporation. These investment agreements allegedly gave
Synovus Trust Corporation the sole discretion to manage,
invest, and have custody of the property in the trusts, taking
into account the Raineses' express investment objective to
maximize growth of the assets. According to the Raineses,
these investment agreements conferred on Synovus Trust
Corporation the sole discretion and ability to purchase, sell,
or invest the trust properties as Synovus Trust Corporation
deemed advisable.
According to the Raineses' complaint, Synovus Trust
Corporation, Synovus Trust, and their agents failed to
properly administer the trusts, did not diversify the trust
assets, and did nothing at all to manage the trust assets, to
generate income, to maximize the growth of the trust assets,
or otherwise to carry out Synovus Trust Corporation's
obligations as cotrustee of the trusts. However, the Raineses
allege, Synovus Trust Corporation, Synovus Trust, and their
agents did charge management, advisory, and other service fees
in excess of $130,000.
1080100
7
On November 14, 2005, Synovus Trust, Synovus Trust
Corporation, and their agents provided notice to the Raineses
of their resignation as trustees of both trusts, effective 90
days from the date of the notice. The Raineses contend that,
at that time, they discovered that the defendants had not
managed the assets in the trusts as allegedly promised.
On June 30, 2008, the Raineses amended their complaint in
this action. In the amended complaint, they sought to recover
damages on the following causes of action: breach of fiduciary
duty, fraud by misrepresentation or suppression of material
facts, promissory fraud, and breach of contract.
On July 15, 2008, the defendants moved to dismiss the
Raines children's breach-of-fiduciary-duty claims based on
lack of standing. On September 24, 2008, the trial court
denied the motion. On October 24, 2008, the defendants moved
the trial court to certify for permissive appeal the following
question, pursuant to Rule 5, Ala. R. App. P.: Whether the
beneficiaries of a revocable trust, other than the settlor of
the trust, have standing to assert claims alleging breach of
fiduciary duty against a trustee when the trust is revocable
1080100
8
at any time by the settlor. On October 10, 2008, the trial
court granted the motion and certified the question.
On October 23, 2008, the defendants filed in this Court
a petition for permission to appeal and, alternatively, a
petition for writ of mandamus. On November 21, 2008, this
Court entered an order stating that the defendants' filing
would be treated as a petition for writ of mandamus and also
ordered answers and briefs.
Standard of Review
The standard of review applicable to a petition for a
writ of mandamus is well settled:
"'Mandamus is an extraordinary remedy and
requires a showing that there is: "(1) a clear legal
right in the petitioner to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) properly invoked
jurisdiction of the court." Ex parte Edgar, 543 So.
2d 682, 684 (Ala. 1989); Ex parte Alfab, Inc., 586
So. 2d 889, 891 (Ala. 1991); Ex parte Johnson, 638
So. 2d 772, 773 (Ala. 1994).' Ex parte Gates, 675
So. 2d 371, 374 (Ala. 1996). See also Ex parte
Waites, 736 So. 2d 550, 553 (Ala. 1999)."
Ex parte Inverness Constr. Co., 775 So. 2d 153, 156 (Ala.
2000).
Analysis
1080100
9
The lack of subject-matter jurisdiction may not be waived
by the parties, and subject-matter jurisdiction may not be
conferred by consent. Ex parte Alabama Dep't of Human Res.,
999 So. 2d 891, 894 (Ala. 2008) (citing Ex parte Davis, 930
So. 2d 497, 499-500 (Ala. 2005)). Thus, "[o]n questions of
subject-matter jurisdiction, this Court is not limited by the
parties' arguments or by the legal conclusions of the trial
... court[] regarding the existence of jurisdiction." Ex
parte Alabama Dep't of Human Res., 999 So. 2d at 894-95
(citing Ex parte Smith, 438 So. 2d 766, 768 (Ala. 1983)). "A
court is obligated to vigilantly protect against deciding
cases over which it has no jurisdiction because '[i]t would
amount to usurpation and oppression for a court to interfere
in a matter over which it has no jurisdiction, and its
pronouncements in respect thereto would be without force, and
its decrees and judgments would be wholly void. This is a
universal principle, as old as the law itself.'" Crutcher v.
Williams, 12 So. 3d 631, 635 (Ala. 2008) (quoting Wilkinson v.
Henry, 221 Ala. 254, 256, 128 So. 362, 364 (1930)).
"'Standing is a necessary component of subject matter
jurisdiction.'" State v. Property at 2018 Rainbow Drive, 740
1080100
10
So. 2d 1025, 1028 (Ala. 1999) (quoting Barshop v. Medina
County Underground Water Conservation Dist., 925 S.W.2d 618,
626 (Tex. 1996)). "Standing ... turns on 'whether the party
has been injured in fact and whether the injury is to a
legally protected right.'" 2018 Rainbow Drive, 740 So. 2d at
1027 (quoting Romer v. Board of County Comm'rs of the County
of Pueblo, 956 P.2d 566, 581 (Colo. 1998) (Kourlis, J.,
dissenting) (emphasis added in Rainbow Drive)).
Alabama Code 1975, § 19-3B-101 et seq., also known as the
"Alabama Uniform Trust Code," became effective January 1,
2007. The Alabama Uniform Trust Code "applies to all trusts
created before, on, or after January 1, 2007," and "to all
judicial proceedings concerning trusts commenced on or after
January 1, 2007." Ala. Code 1975, § 19-3B-1204(a)(1) and (2).
"[A]ny rule of construction or presumption provided in [the
Alabama Uniform Trust Code] applies to trust instruments
executed before January 1, 2007, unless there is a clear
indication of a contrary intent in the terms of the trust."
Ala. Code 1975, § 19-3B-1204(a)(4).
Alabama Code 1975, § 19-3B-603(a), provides: "While a
trust is revocable, rights of the beneficiaries are subject to
1080100
11
the control of, and the duties of the trustee are owed
exclusively to, the settlor." (Emphasis added.) Therefore,
regardless of whether the Raines children have suffered injury
to their rights as beneficiaries of the trusts as a result of
the defendants' conduct, those rights were subject to the
control of Mr. and Mrs. Raines while the trusts were
revocable, and the fiduciary duties owed by the defendants
were owed "exclusively" to Mr. and Mrs. Raines during that
time. See Ala. Code 1975, § 19-3B-603(a). Thus, the Raines
children's causes of action for breach of fiduciary duty do
not seek redress for legally protected rights, and the Raines
children have no standing to assert those claims. See, e.g.,
2018 Rainbow Drive, 740 So. 2d at 1027 (noting that, to have
standing to sue, a party must have suffered an injury to a
legally protected right).
Therefore, the defendants have demonstrated a clear legal
right to a writ of mandamus directing the trial court to
dismiss the breach-of-fiduciary-duty claims of the Raines
children against them. In addition, we find that the
defendants have carried their burden as petitioners to
demonstrate an imperative duty upon the trial court to dismiss
1080100
12
those claims and its refusal to do so, the lack of another
adequate remedy, and the proper jurisdiction of this Court.
See Ex parte Inverness Constr. Co., 775 So. 2d at 156 (setting
forth the requirements for the issuance of a writ of
mandamus). Therefore, the defendants are entitled to the writ
of mandamus.
Conclusion
The trial court is hereby directed to dismiss the
breach-of-fiduciary-duty
claims
of
the
Raines
children
against
all the defendants.
PETITION GRANTED; WRIT ISSUED.
Lyons, Woodall, Stuart, Smith, Bolin, Parker, and Shaw,
JJ., concur.
Murdock, J., concurs in the result. | December 30, 2009 |
ac153f68-7fe2-4e19-8982-ac2b5588773b | Ex parte Jason Michael Sharp. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Jason Michael Sharp v. State of Alabama) | N/A | 1080959 | Alabama | Alabama Supreme Court | REL: 12/04/2009
Notice: T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e
advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e
r e q u e s t e d t o n o t i f y t h e
Reporter of
Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741 ((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may
be
made b e f o r e
t h e o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1080959
Ex p a r t e Jason M i c h a e l Sharp
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
( I n r e :
Jason M i c h a e l Sharp
v.
S t a t e o f Alabama)
(Madison C i r c u i t Court, CC-99-2473;
Court o f C r i m i n a l Appeals, CR-05-2371)
STUART,
J u s t i c e .
J a s o n M i c h a e l S h a r p was c o n v i c t e d o f
m u r d e r made
c a p i t a l
b e c a u s e i t
was c o m m i t t e d d u r i n g t h e c o u r s e o f a r a p e o r
an
1080959
a t t e m p t e d r a p e , see § 1 3 A - 5 - 4 0 ( a ) ( 3 ) , A l a . Code 1975.
A f t e r
a s e n t e n c i n g h e a r i n g , t h e j u r y recommended, b y a v o t e o f
11-1,
t h a t
S h a r p be
s e n t e n c e d
t o d e a t h .
The
t r i a l
c o u r t t o o k
t h e
j u r y ' s
r e c o m m e n d a t i o n
and
s e n t e n c e d
S h a r p
t o d e a t h .
The
C o u r t
o f
C r i m i n a l
A p p e a l s
a f f i r m e d
S h a r p ' s
c o n v i c t i o n
and
s e n t e n c e .
S h a r p v. S t a t e ,
[Ms. CR-05-2371, Aug. 29, 2008]
So. 3 d ___
( A l a . C r i m . App.
2 0 0 8 ) .
T h i s
C o u r t
g r a n t e d
S h a r p ' s
p e t i t i o n
f o r
a
w r i t
o f
c e r t i o r a r i t o r e v i e w two i s s u e s : w h e t h e r p l a i n e r r o r o c c u r r e d
i n t h e a d m i s s i o n o f t h e t e s t i m o n y o f t h e e m e r g e n c y - r o o m n u r s e
who
e x a m i n e d t h e v i c t i m and w h e t h e r p l a i n e r r o r o c c u r r e d i n
2
1080959
t h e
S t a t e ' s
e x e r c i s e
o f
i t s p e r e m p t o r y
c h a l l e n g e s .
1
We
r e v e r s e and remand.
The
f a c t s o f t h e o f f e n s e a r e a d e q u a t e l y s t a t e d i n
d e t a i l
i n
t h e
C o u r t
o f
C r i m i n a l
A p p e a l s ' o p i n i o n and
w i l l
n o t
be
r e p e a t e d h e r e .
See S h a r p v. S t a t e ,
So. 3d a t
.
" P l a i n
e r r o r i s
" ' e r r o r t h a t i s so o b v i o u s t h a t t h e
f a i l u r e
t o
n o t i c e
i t w o u l d
s e r i o u s l y
a f f e c t
t h e
1 N e i t h e r o f t h e s e c l a i m s was p r e s e n t e d t o t h e
t r i a l
c o u r t
o r
t o t h e C o u r t o f C r i m i n a l A p p e a l s ; h o w e v e r , R u l e 3 9 ( a ) ( 2 ) ,
A l a .
R. App.
P.,
p r o v i d e s :
" ( 2 )
D e a t h - p e n a l t y
c a s e s .
When t h e
C o u r t
o f
C r i m i n a l
A p p e a l s
has
a f f i r m e d
a s e n t e n c e
i m p o s i n g
t h e
d e a t h
p e n a l t y ,
c o u n s e l
who
r e p r e s e n t e d
t h e
a p p e l l a n t on a p p e a l t o t h e C o u r t o f C r i m i n a l
A p p e a l s
o r
s u c c e s s o r c o u n s e l
s h a l l p r e p a r e and
f i l e
i n t h e
Supreme C o u r t
a p e t i t i o n
f o r a w r i t
o f
c e r t i o r a r i
f o r
r e v i e w o f t h e d e c i s i o n o f t h e C o u r t o f
C r i m i n a l
A p p e a l s .
T h a t
p e t i t i o n
s h a l l
be
g o v e r n e d
by
t h i s
r u l e , e x c e p t
t h a t :
"(A)
I n
a d d i t i o n
t o
t h e
b a s e s
f o r
c o n s i d e r a t i o n o f p e t i t i o n s f o r t h e w r i t o f
c e r t i o r a r i
l i s t e d
i n s u b s e c t i o n ( a ) ( 1 ) o f
t h i s
r u l e ,
a
p e t i t i o n
f o r
a
w r i t
o f
c e r t i o r a r i
w i l l
a l s o be c o n s i d e r e d f r o m
a
d e c i s i o n
f a i l i n g
t o
r e c o g n i z e
p r e j u d i c i a l
any
p l a i n
e r r o r
o r d e f e c t
t h e p r o c e e d i n g u n d e r r e v i e w w h e t h e r o r n o t
t h e e r r o r was
b r o u g h t
t o t h e a t t e n t i o n
o f
t h e
t r i a l
c o u r t o r t h e C o u r t
o f
C r i m i n a l
A p p e a l s . "
as
i n
3
1080959
f a i r n e s s
o r
i n t e g r i t y
o f
t h e
j u d i c i a l
p r o c e e d i n g s .
Ex p a r t e
T a y l o r , 666 So. 2d
73
( A l a . 1 9 9 5 ) . The p l a i n
e r r o r
s t a n d a r d
a p p l i e s o n l y where a p a r t i c u l a r l y
e g r e g i o u s
e r r o r o c c u r r e d a t t r i a l and t h a t e r r o r h a s
o r
p r o b a b l y
h a s
s u b s t a n t i a l l y
p r e j u d i c e d
t h e d e f e n d a n t .
T a y l o r . '
"Ex
p a r t e
T r a w i c k ,
698 So. 2d
[162,]
167
[ ( A l a .
19 9
7 ) ] . "
Ex p a r t e W a l k e r , 972 So. 2d 737, 742 ( A l a . 2 0 0 7 ) .
F i r s t ,
S h a r p c o n t e n d s t h a t p l a i n e r r o r o c c u r r e d when t h e
t r i a l
c o u r t a d m i t t e d
o p i n i o n t e s t i m o n y o f a l a y
w i t n e s s .
He
f u r t h e r
a r g u e s
t h a t
p l a i n
e r r o r
o c c u r r e d
when
t h e
S t a t e
r e f e r e n c e d
t h a t
t e s t i m o n y
i n i t s o p e n i n g
and
c l o s i n g
a r g u m e n t s .
The
r e c o r d e s t a b l i s h e s t h a t d u r i n g
i t s o p e n i n g a r g u m e n t
t h e
S t a t e
a r g u e d :
" I n
t h e
m e a n t i m e
[ t h e
v i c t i m ]
i s
b e i n g
t r a n s p o r t e d t o H u n t s v i l l e H o s p i t a l .
When she g e t s
t o t h e ER [ e m e r g e n c y r o o m ] , she i s a d m i n i s t e r e d b y
a t r a u m a n u r s e a t t h e ER b y t h e name o f K i m H e l l u m s .
And K i m H e l l u m s d e s c r i b e s -- when [ t h e
v i c t i m ] came
i n
she
a s s e s s e d
h e r
s i t u a t i o n
a n d b a s e d
on h e r
e x p e r i e n c e
as
an
ER
n u r s e
she
s u r m i s e d ,
she
d e t e r m i n e d t h a t she was d e a l i n g w i t h t h e v i c t i m o f
a s e x u a l a s s a u l t .
She b e g a n h e r j o b t h e r e i n t h e ER
t o
t r y t o
s a v e
[ t h e v i c t i m ' s ]
l i f e .
P o l i c e
o f f i c e r s
h a d a r r i v e d on t h e s c e n e as w e l l .
And
d u r i n g
h e r work
w i t h
[ t h e v i c t i m ] i n t h e ER she
b e g a n
t o
r e a l i z e
t h a t
she knows
[ t h e
v i c t i m ] .
T h e y ' r e b o t h n u r s e s ,
t h e y ' v e w o r k e d t o g e t h e r ,
t h e y
know e a c h o t h e r , t h e y ' r e a c q u a i n t e d
w i t h e a c h
o t h e r ,
4
1080959
b u t
she
s a y s
t h a t
she
d i d n ' t
e v e n
r e c o g n i z e
[ t h e
v i c t i m ] b e c a u s e o f
a l l t h e
b l o o d
and
t h e
c o n d i t i o n
o f h e r
f a c e , t h e
s w e l l i n g .
"She
s e e s what she d e s c r i b e s as a semen smear on
t h e
i n n e r
t h i g h
o f
[ t h e
v i c t i m ]
as
she
i s i n
t h e
h o s p i t a l .
She
p o i n t s
i t o u t
t o
t h e
i n v e s t i g a t o r .
She
t a k e s
a
s t e r i l e
g a u z e
and
she
c o l l e c t s
t h a t
semen smear t h a t i s p r e s e r v e d ,
h a n d e d t o t h e
p o l i c e
o f f i c e r
t h a t ' s
i n
t h e
room,
and
t h a t
p i e c e
o f
e v i d e n c e c o n t i n u e s
on w i t h us
t o d a y . "
D u r i n g
t h e
t r i a l ,
t h e
S t a t e
c a l l e d
K i m
H e l l u m s ,
t h e
e m e r g e n c y - r o o m n u r s e ,
t o
t e s t i f y
as
t o what h a p p e n e d i n
t h e
e m e r g e n c y room when t h e v i c t i m was
b r o u g h t
i n .
H e l l u m s
was
one
o f t h e
f i r s t w i t n e s s e s
t o t e s t i f y .
The
f o l l o w i n g
o c c u r r e d
d u r i n g
t h e
S t a t e ' s
d i r e c t e x a m i n a t i o n o f
H e l l u m s :
" [ S t a t e ] :
L e t
me
a s k
y o u
t h i s ,
Ms.
H e l l u m s .
Were you
w o r k i n g on
o r a b o u t J a n u a r y 2,
1999,
when
[ t h e v i c t i m ] was
t r a n s p o r t e d
t o t h e e m e r g e n c y room?
" [ H e l l u m s ] :
Y e s .
" [ S t a t e ] : And were you w o r k i n g as a n u r s e i n t h e
e m e r g e n c y room when she
was
t r a n s p o r t e d ?
" [ H e l l u m s ] :
Y e s .
" [ S t a t e ] :
I f you
w o u l d
t e l l
t h e
f o l k s on
t h i s
j u r y
what
you
r e c a l l
a b o u t
y o u r
s h i f t
and
s p e c i f i c a l l y when
[ t h e
v i c t i m ]
was
t r a n s p o r t e d
t o
t h e h o s p i t a l .
" [ H e l l u m s ] :
I remember t h e y i n f o r m e d us t h a t
we
had
a t r a u m a c o m i n g i n , i t was
a s t a b b i n g .
And when
she
a r r i v e d t h e y p l a c e d
h e r
o v e r on
t h e
bed
and
we
s t a r t e d an a s s e s s m e n t , w h i c h i s p r o t o c o l f o r
u s .
5
1080959
" [ S t a t e ] : I f
y o u w o u l d j u s t d e s c r i b e t o us what
an a s s e s s m e n t i s .
" [ H e l l u m s ] : When I s a y r a p i d a s s e s s m e n t , i t ' s
a
r a p i d
h e a d t o t o e a s s e s s m e n t
o f t h e p a t i e n t a n d
t h e y ' r e
a s s e s s i n g
t h e i r
i n j u r i e s ,
t h e i r
l e v e l o f
c o n s c i o u s n e s s ,
t h e i r wounds, t h e i r
v i t a l
s i g n s .
So
i n t h e f i r s t t h r e e m i n u t e s I have t o go h e a d t o
t o e
on a p a t i e n t , a s s e s s
t h e i r a i r w a y s , s e e i f
t h e y a r e
b r e a t h i n g , s e e i f
we n e e d t o s e t
u p t o b r e a t h e f o r
them, p u t a t u b e down, have two I V ' s p l a c e d i n
t h e
p a t i e n t , a n d
I a s s e s s p e r i n e a l a r e a a n d
go a h e a d a n d
i n s e r t a F o l e y c a t h e t e r t o o b t a i n a u r i n e
s p e c i m e n
a l s o , a n d I o b t a i n l a b s , b a s i c a l l y g e t them s e t
u p
f o r
s u r g e r y i f
t h e y n e e d t o go t o s u r g e r y .
"When t h i s p a t i e n t was b r o u g h t i n
she
was p l a c e d
o v e r on t h e
b e d . T h e y p l a c e d h e r
on t h e
b e d a n d
she
s t i l l h a d f o r e i g n o b j e c t s a t t a c h e d t o h e r a n d t h o s e
were
l e f t i n p l a c e
i n i t i a l l y j u s t t o l o o k a t h e r
h e a d .
She h a d so much s w e l l i n g a b o u t h e r f a c e
t h a t
she was u n r e c o g n i z a b l e t o me, a l o t
o f s w e l l i n g t o
h e r o r b i t s , ones t h a t y o u t y p i c a l l y s e e on a s s a u l t s .
" [ S t a t e ] : What a r e
y o u t a l k i n g a b o u t t h e o r b i t s ?
" [ H e l l u m s ] :
Her e y e s
were
s w o l l e n
a n d y o u
u s u a l l y
s e e - -
we
s e e
t h e s e
i n j u r i e s
a f t e r
somebody's been
r e p e a t e d l y
p o u n d e d .
You w o u l d n ' t
g e t t h e s w e l l i n g f r o m one b l o w .
T h e r e was a l o t o f
s o f t t i s s u e i n j u r y a b o u t t h e
f a c e , s i n u s a r e a ,
e y e s .
I d o n ' t r e c a l l w h e t h e r h e r p u p i l s were e q u a l a t t h i s
p o i n t b e c a u s e t h e r e was so much s w e l l i n g I c o u l d n ' t
g e t h e r e y e s
open.
C h e c k i n g
h e r a i r w a y s ,
s e e
i f
t h e r e was b l o o d i n i t . She h a d a l o t
o f d r i e d b l o o d
on h e r .
L i k e I s a i d I d i d n ' t r e c o g n i z e h e r .
" G o i n g down h e r body
I n o t i c e d
t h a t s h e h a d
s i l v e r
d u c t
t a p e ,
s i l v e r
t a p e
w h i c h I w o u l d
c a l l
d u c t t a p e ,
s t i l l
a t t a c h e d t o h e r r i g h t h a n d .
A n d on
t h e
l e f t
t h e r e was p i e c e s o f i t .
6
1080959
" A s s e s s i n g h e r c h e s t t h e y were s a y i n g t h a t t h e y
t h o u g h t
she h a d b e e n - -
t h e y
knew she h a d b e e n
s t a b b e d
w i t h
s o m e t h i n g
and I was
l o o k i n g a t t h e
e n t r a n c e wounds and d e s c r i b i n g them t o t h e p e r s o n
[who] was
w r i t i n g .
"As I moved down I l i s t e n e d t o h e r b r e a t h s o u n d s
and as I moved down t o a b d o m i n a l a r e a , I was n o t i n g
w h e t h e r she h a d any s w e l l i n g , any b r u i s i n g
t h e r e .
"And when I g o t t o h e r p e r i n e a l a r e a I s t o p p e d .
" [ S t a t e ] : I'm s o r r y , I d o n ' t mean t o i n t e r r u p t
y o u , Ms. H e l l u m s .
B u t what a r e you s a y i n g what a r e a
t h e
p e r i - -
"The
p e r i n e a l
a r e a ,
t h e a r e a
o f t h e
g r o i n ,
b e n e a t h t h e p u b i c b o n e , t h e i n s i d e o f t h e t h i g h s .
" [ S t a t e ] : Okay.
Go a h e a d .
" [ H e l l u m s ] :
When I g o t t o t h i s
p o i n t i n my
a s s e s s m e n t -- t h e r e w e r e , o f c o u r s e , a p h y s i c i a n a t
t h e h e a d o f t h e b e d , a t r a u m a p h y s i c i a n a t t h e b e d
s i d e .
T h e y were a s s e s s i n g t h e a i r w a y , g e t t i n g
r e a d y
t o
go
a h e a d
and p u t a
t u b e
down h e r t h r o a t t o
b r e a t h e f o r
h e r and someone e l s e was c h e c k i n g
b l o o d
as I'm d o i n g my p h y s i c a l a s s e s s m e n t .
And my r o l e i n
t h a t was d o i n g t h e p h y s i c a l a s s e s s m e n t and
y e l l i n g
o u t t o t h e p e r s o n
t h a t was w r i t i n g .
When I g o t t o
t h e w a i s t a r e a I b a s i c a l l y
s t o p p e d
w i t h what I saw
and h a d e v e r y o n e t h a t was b e s i d e me t o b a c k up. And
b a s i c a l l y s a i d d o n ' t a n y b o d y g e t n e a r
t h i s a r e a , I'm
g o i n g t o do an a s s e s s m e n t and I a s k e d f o r c e r t a i n
i t e m s
t h a t I t h o u g h t
I w o u l d n e e d b e c a u s e a t
t h i s
p o i n t I saw s i g n s o f b r u i s i n g , some t r a c e b l o o d , and
a
d r i e d
w h i t e
s u b s t a n c e
i n s i d e
h e r t h i g h
t h a t I
t h o u g h t w o u l d be e v i d e n c e .
"So I h a d a n u r s e h a n d me a s t e r i l e p a c k o f
t w o -
b y - t w o ' s , I p u t s t e r i l e
s a l i n e , a dab o f s a l i n e on
7
1080959
t h e t w o - b y - t w o , w i p e d t h e w h i t e
s u b s t a n c e
t h a t was
i n s i d e h e r t h i g h on -¬
" [ S t a t e ] : And d i d y o u s u s p e c t
t h a t as
b e i n g
semen, d r i e d semen?
" [ H e l l u m s ] :
Y e s .
" [ S t a t e ] : Okay.
" [ H e l l u m s ] :
She h a d l o t o f b r u i s i n g a r o u n d t h e
p e r i n e a l
a r e a ,
a r o u n d t h e v a g i n a l a r e a , a n d i n s i d e
t h e t h i g h , i t
l o o k e d
t r a u m a t i c .
" [ S t a t e ] : Okay.
" [ H e l l u m s ] :
Had some s w e l l i n g w i t h
i t . And
t h e r e were one o r two a r e a s t h a t
r i g h t a r o u n d
t h a t
t h e r e was t h e d r i e d w h i t e
s u b s t a n c e .
The s u b s t a n c e
t h a t I w i p e d o f f , I t o o k t h e t w o - b y - t w o , l e t i t a i r
d r y ,
s t i l l
d i d n ' t l e t
a n y b o d y n e a r me o r my
a r e a
u n t i l I h a d c o l l e c t e d a n d d i d
what I n e e d e d t o do,
and
t h e n h a d a p h y s i c i a n t o l o o k a t t h e a r e a a n d
g i v e me t h e o k a y t o p u t a F o l e y
c a t h e t e r
i n .
We
were
t r y i n g t o g e t h e r t o s u r g e r y ,
she was a
-¬
what we w o u l d
c a l l
a
l e v e l one t r a u m a .
She was
g o i n g t o d i e
on t h a t t a b l e r i g h t t h e n i f we
d i d n ' t
h u r r y up a n d g e t h e r t o s u r g e r y .
" A f t e r I c o l l e c t e d
my s p e c i m e n a n d
made s u r e t h e
p h y s i c i a n saw t h e a r e a t h a t I h a d n o t e d t o have t h e
b r u i s i n g
a n d t h e s w e l l i n g a n d t h e t r a u m a
t o , I
c o l l e c t e d my s p e c i m e n a n d made
s u r e
t h a t I h a d a
p o l i c e m a n
t o h a n d
o f f t o
c o n t i n u e
my
c h a i n
o f
c u s t o d y .
A n d i t was p l a c e d i n a p a p e r e n v e l o p e a n d
l e t d r y . I t
was d o c u m e n t e d where i t was t a k e n
f r o m
and
t h a t t i m e a n d b y who.
" [ S t a t e ] : And h a d y o u , Ms. H e l l u m s , i n
y o u r w o r k
i n ER, work
w i t h
t h i s
w h o l e
p r o t o c o l as f a r as
a s s e s s m e n t s g o e s , t h a t ' s s o m e t h i n g y o u h a d r e g u l a r l y
done i n y o u r
c a r e e r ?
8
1080959
" [ H e l l u m s ] :
E v e r y p a t i e n t t h a t comes i n t o
t h i s
e m e r g e n c y room
g e t s
an
a s s e s s m e n t .
E v e r y
t r a u m a
p a t i e n t
g e t s
a p r i m a r y
and
a s e c o n d a r y
a s s e s s m e n t
done on them."
D u r i n g
S h a r p ' s
c r o s s - e x a m i n a t i o n
o f
H e l l u m s ,
he
q u e s t i o n e d
h e r
a b o u t
t h e
m e d i c a l
r e p o r t
t h a t
d e t a i l e d
H e l l u m s ' s
" r a p i d a s s e s s m e n t " o f
t h e
v i c t i m .
The
f o l l o w i n g
o c c u r r e d :
[ S h a r p ' s
c o u n s e l ] :
Okay.
And
t h i s
c o n d i t i o n
d e s c r i b e d h e r e , i s t h a t what y o u ' v e d e s c r i b e d as
t h e
wounds t o t h e v a g i n a l a r e a h e r e , d o n ' t l e t me
--
" [ H e l l u m s ] :
I t ' s h a r d
-¬
" [ S h a r p ' s
c o u n s e l ] :
--
t r y
t o
d e c i p h e r
any
m e d i c a l
t e r m s .
" [ H e l l u m s ] :
V a g i n a l
o r i f i c e
e c c h y m o t i c
and
e d e m a t o u s ,
d r i e d
c l e a r
w h i t e
m a t e r i a l
n o t e d
t o
v a g i n a ,
i n n e r
t h i g h s ,
c u l t u r e
f o r p o s s i b l e
s e x u a l
a s s a u l t . Y e s ,
t h a t w o u l d be
-¬
" [ S h a r p ' s
c o u n s e l ] : What
i s t h e
l a y t e r m
f o r
t h i s d e s c r i p t i o n h e r e ?
Does t h a t d e s c r i b e some k i n d
o f
s p e c i f i c
c o n d i t i o n
o r t r a u m a
o r what does
t h a t
mean?
" [ H e l l u m s ] : E c c h y m o t i c i s a b r u i s i n g . E d e m a t o u s
i s
t h e
s w e l l i n g .
" [ S h a r p ' s c o u n s e l ] : Okay. Now
y o u ' v e
d e s c r i b e d
b r u i s i n g
and
s w e l l i n g i n t h a t
a r e a .
And
a m i n u t e
ago
you
s a i d t h a t
i t was
i n t h e
i n n e r
t h i g h .
Was
t h e r e
b r u i s i n g on
t h e
l e g p o r t i o n s
o f
[ t h e
v i c t i m ]
o r
was
t h e
b r u i s i n g
you
d e s c r i b e d
i n
t h e
-¬
s p e c i f i c a l l y
i n t h e v a g i n a
a r e a ?
9
1080959
" [ H e l l u m s ] :
No.
I t h i n k
I s a i d
t h a t
she
had
b r u i s i n g
i n t h e
p e r i n e a l
a r e a w h i c h
w o u l d
be
t h e
l a b i a ,
t h e
a r e a b e t w e e n
t h e
l a b i a
and
t h e
u p p e r
t h i g h s .
I
t h i n k
t h e r e
was
b r u i s i n g
--
I
d o n ' t
r e c a l l how
f a r down t h e b r u i s i n g w e n t , b u t
b a s i c a l l y
what
she
had
on
t h e
t h i g h s
was
t h e
l i t t l e
b i t o f
d r i e d b l o o d and t h e w h i t i s h
s u b s t a n c e .
" [ S h a r p ' s
c o u n s e l ] : So t h e i n s i d e s o f t h e
l e g s
o t h e r
t h a n
a r o u n d
t h a t
i m m e d i a t e
a r e a
were
n o t
b r u i s e d ; i s t h a t
c o r r e c t ?
" [ H e l l u m s ] :
You k n o w , I d o n ' t
r e c a l l .
I w o u l d
h e s i t a t e
t o
s a y
t h a t
she
d i d n ' t
h a v e
b r u i s i n g
b e c a u s e she may h a v e had up u n d e r n e a t h
t h a t I d o n ' t
r e c a l l .
A l l I
c a n
t e l l
y o u
i s what
I remember
s e e i n g .
" [ S h a r p ' s
c o u n s e l ] :
Okay.
Had
y o u
e v e r
s e e n
t h a t
c o n d i t i o n b e f o r e on a n y b o d y y o u had
t r e a t e d ?
" [ H e l l u m s ] :
Y e s , s i r , s i x , s e v e n , e i g h t , n i n e
t i m e s o f a r e a l l y t r a u m a t i c
r a p e I ' v e s e e n
t h a t .
" [ S h a r p ' s c o u n s e l ] : Okay.
And i f someone -- i s
i t p o s s i b l e t h a t someone c o u l d have t h a t t h r o u g h
a n y
means e x c e p t r a p e o r do y o u know?
" [ H e l l u m s ] :
No.
I'm
s u r e
y o u
c o u l d
h a v e
b r u i s i n g and edema f r o m a n y number o f
t r a u m a s .
" [ S h a r p ' s
c o u n s e l ] :
Okay.
And
i t ' s p o s s i b l e
t h a t p e o p l e c o u l d g e t t h a t
k i n d o f b r u i s i n g and
y o u
w o u l d n e v e r see them b e c a u s e t h e y d i d n ' t come i n t o
be
--
t h e y w o u l d n ' t
h a v e
t o be
t r e a t e d
w i t h
t h a t
p a r t i c u l a r k i n d o f b r u i s i n g , w o u l d t h e y ?
T h a t ' s
n o t
l i f e
t h r e a t e n i n g , i s i t ?
" [ H e l l u m s ] :
W i t h
t h a t
t y p e
o f
b r u i s i n g
and
amount o f s w e l l i n g y o u w o u l d have a l o t o f
p a i n .
" [ S h a r p ' s
c o u n s e l ] : Okay.
10
1080959
" [ H e l l u m s ] : Now w h e t h e r y o u c h o s e t o s t i c k i t
o u t a t home and n o t come t o t h e
ER [ e m e r g e n c y r o o m ] ,
I d o n ' t k n o w , I c a n ' t a n s w e r t h a t .
B u t I c a n
t e l l
you
t h a t f r o m my e x p e r i e n c e
I have o n l y s e e n
t h a t
amount o f b r u i s i n g and s w e l l i n g i n t h e l a b i a f r o m a
s e x u a l a s s a u l t .
" [ S h a r p ' s
c o u n s e l ] : Now
t e l l us what
t r a i n i n g ,
i f
a n y , you h a v e
i n s p e c i f i c
d e t e r m i n a t i o n s
o f
s e x u a l
a s s a u l t o r s e x u a l
c r i m e s ?
Do you h a v e any
s p e c i f i c
t r a i n i n g o t h e r
t h a n
y o u r n u r s i n g
t r a i n i n g
t h a t q u a l i f i e s you t o t e l l us t h a t
t h i s p e r s o n was
s e x u a l l y a s s a u l t e d and t h i s p e r s o n d o e s n ' t l o o k
l i k e
t h e y w e r e ?
T e l l us how you
" [ H e l l u m s ] : Okay.
I ' l l g i v e you a
l i s t o f my
c e r t i f i c a t i o n s , w h i c h
a l l - - a l o t o f t h e t r a u m a
c l a s s e s
encompass
t h e w h o l e
a r e a
as
f a r as a
p h y s i c a l
a s s e s s m e n t and h i s t o r y .
I h a v e a B C L S ,
w h i c h i s B a s i c L i f e S u p p o r t .
I have a A C L S , w h i c h
i s
A d v a n c e d
L i f e
S u p p o r t .
I have CATN w h i c h i s
C o u r s e o f A d v a n c e d Trauma N u r s i n g .
I have t a k e n and
I t e a c h Trauma N u r s i n g C o r e C u r r i c u l u m . I h a v e
t a k e n
and I t e a c h E m e r g e n c y N u r s e P e d i a t r i c s A d v a n c e d
L i f e
S u p p o r t
c o r e
c u r r i c u l u m .
Any
number
o f
o t h e r
c e r t i f i c a t i o n s
f o r c o n t i n u i n g e d u c a t i o n
c r e d i t s I
h a v e t a k e n , t h o s e a r e t o o numerous t o c o u n t .
B u t I
h a v e
b e e n
t o
i n - s e r v i c e i n r a p e
and
s p e c i m e n
c o l l e c t i o n s .
When [ a t ]
t h e SANE p r o j e c t , i t ' s b e e n
p r o b a b l y n i n e y e a r s a g o ,
I g o t c e r t i f i e d i n
a s e x u a l
a s s a u l t e x a m i n a t i o n
w i t h a c a m e r a .
" [ S h a r p ' s
c o u n s e l ] : A r e t h e r e any o t h e r f a c t o r s
o t h e r
t h a n
y o u r v i s u a l
o b s e r v a t i o n s
t h a t you w o u l d
use
i n m a k i n g y o u r
d e t e r m i n a t i o n
t h a t
t h i s was a
s e x u a l a s s a u l t o r r a p e ?
What o t h e r f a c t o r s on y o u r
e x t e n s i v e t r a i n i n g t h e r e t h a t y o u ' v e d e s c r i b e d w o u l d
you
c o n s i d e r o r deem r e l e v a n t ?
" [ H e l l u m s ] : W o u l d you r e p e a t t h e q u e s t i o n ?
11
1080959
" [ S h a r p ' s c o u n s e l ] : What o t h e r f a c t o r s w o u l d you
l o o k f o r o t h e r
t h a n j u s t t h e v i s i b l e
s i g n s
y o u ' v e
j u s t
d e s c r i b e d ?
A r e t h e r e
any f a c t o r s
t h a t you
w o u l d c o n s i d e r i n m a k i n g t h a t
d e t e r m i n a t i o n ?
" [ H e l l u m s ] :
I f I u n d e r s t a n d what y o u ' r e
a s k i n g
me
a f t e r I h a d done a c o m p l e t e
a s s e s s m e n t
on a
p a t i e n t
and
n o t e d
t h e
e x t e n s i v e
s w e l l i n g
and
b r u i s i n g and a s u b s t a n c e
t h a t
l o o k e d
l i k e semen on
t h e r e
and d u c t
t a p e
s t i l l
b o u n d t o t h e h a n d s and
j u s t - - I g u e s s t h e w h o l e p i c t u r e comes down f o r me
p e r s o n a l l y I w o u l d t h i n k
t h a t .
B u t I w a s n ' t - - a t
t h i s p o i n t when I was d o i n g my a s s e s s m e n t as a r o l e ,
I was t a k i n g c a r e o f t h e p a t i e n t t o t h e b e s t o f my
a b i l i t y
and
a s s e s s i n g
and
o b t a i n i n g
s p e c i m e n
c o l l e c t i o n .
I t w a s n ' t - - i t
w a s n ' t i n my i n t e n t a t
t h a t p o i n t t o s a y s h e ' s b e e n r a p e d , y e s n o , I saw -¬
" [ S h a r p ' s
c o u n s e l ] :
B u t t h a t ' s
y o u r
o p i n i o n ,
i s n ' t
i t ?
" [ H e l l u m s ] : I f
I c o u l d have an o p i n i o n , y e s , she
was b r u t a l l y r a p e d . "
The
S t a t e a r g u e d d u r i n g
i t s c l o s i n g a r g u m e n t :
" A g a i n when [ t h e v i c t i m ]
g e t s t o t h e h o s p i t a l
K i m
H e l l u m s
i s t h e r e
and she
t e s t i f i e d
t h a t she
r e c o g n i z e d
o r b e l i e v e d
t h a t when [ t h e
v i c t i m ]
f i r s t
came i n she was d e a l i n g
w i t h a v i c t i m o f a
s e x u a l
a s s a u l t , b a s e d on y e a r s o f e x p e r i e n c e
i n d e a l i n g
w i t h
t h i s
t y p e o f s i t u a t i o n .
She o b s e r v e d a semen
smear on t h e i n t e r i o r
t h i g h o f [ t h e v i c t i m ] .
She
o b s e r v e d s w e l l i n g and b r u i s i n g o f t h e v a g i n a l
a r e a .
She
d e s c r i b e d
t h a t c o n d i t i o n as b e i n g
v e r y p a i n f u l .
And
she a l s o
s a y s - - she u s e d
t h a t w o r d ' b r u t a l '
a g a i n .
She
s a i d , ' I t a p p e a r e d
t o me
t h a t [ t h e
v i c t i m ] h a s b e e n b r u t a l l y r a p e d . '
"Was
[ t h e v i c t i m ] r a p e d t h a t d a y ? Y e s ,
she was.
The
e v i d e n c e i s t h e r e . "
12
1080959
F i r s t , S h a r p a r g u e s
t h a t p l a i n
e r r o r
o c c u r r e d when t h e
t r i a l
c o u r t a l l o w e d H e l l u m s t o t e s t i f y on d i r e c t
e x a m i n a t i o n
b y t h e S t a t e as an e x p e r t w i t n e s s w i t h o u t r e q u i r i n g t h e S t a t e
t o
e s t a b l i s h
t h a t she p o s s e s s e d
t h e r e q u i s i t e
" k n o w l e d g e ,
s k i l l ,
e x p e r i e n c e , t r a i n i n g o r e d u c a t i o n " t o make
c e r t a i n
a s s e s s m e n t s .
See R u l e 702
, A l a .
R. E v i d .
A r e v i e w o f t h e
S t a t e ' s
d i r e c t
e x a m i n a t i o n o f H e l l u m s ,
h o w e v e r ,
e s t a b l i s h e s
t h a t t h e S t a t e d i d
n o t p r o f f e r H e l l u m s as an e x p e r t w i t n e s s .
The
S t a t e
e l i c i t e d
t e s t i m o n y
f r o m H e l l u m s
as t h e n u r s e
who
a s s e s s e d t h e v i c t i m when t h e v i c t i m
a r r i v e d a t t h e e m e r g e n c y
room.
H e l l u m s ' s
t e s t i m o n y on d i r e c t e x a m i n a t i o n p r o v i d e d t h e
j u r y w i t h i n s i g h t
i n t o t h e i n j u r i e s H e l l u m s
o b s e r v e d on t h e
v i c t i m
and t h e
l e v e l
o f t r a u m a
t h e v i c t i m
h a d
s u f f e r e d .
H e l l u m s ' s
s t a t e m e n t
t h a t
"we
s e e
t h e s e
i n j u r i e s
a f t e r
somebody's
b e e n
r e p e a t e d l y
p o u n d e d "
d i d n o t
i n v a d e
t h e
p r o v i n c e
o f t h e
j u r y ,
as
S h a r p
a r g u e s ,
b u t
c o n s t i t u t e d
t e s t i m o n y
f r o m
a
l a y w i t n e s s
r a t i o n a l l y
b a s e d
on h e r
p e r c e p t i o n a n d was h e l p f u l t o a c l e a r
u n d e r s t a n d i n g o f h e r
t e s t i m o n y .
I t p r o v i d e d t h e j u r y
w i t h
a m e a s u r e
o f t h e
s e v e r i t y o f t h e v i c t i m ' s
i n j u r i e s .
See R u l e 7 0 1 , A l a . R.
E v i d . ( " I f t h e w i t n e s s i s n o t t e s t i f y i n g as an e x p e r t , t h e
13
1080959
w i t n e s s ' s t e s t i m o n y i n t h e f o r m o f o p i n i o n s o r i n f e r e n c e s i s
l i m i t e d
t o
t h o s e
o p i n i o n s
o r
i n f e r e n c e s
w h i c h
a r e ( a )
r a t i o n a l l y
b a s e d on t h e p e r c e p t i o n o f t h e w i t n e s s and ( b )
h e l p f u l t o a c l e a r u n d e r s t a n d i n g o f t h e w i t n e s s ' s t e s t i m o n y o r
t h e
d e t e r m i n a t i o n o f a
f a c t
i n i s s u e . " ) .
2
C f .
B u r k e v .
T i d w e l l ,
211 A l a . 673, 101 So. 599
(1
924)
( l a y w i t n e s s
p e r m i t t e d t o t e s t i f y t h a t a p e r s o n was " d r u n k " ) .
P l a i n
e r r o r
d o e s n o t e x i s t i n t h i s
r e g a r d .
N e x t ,
S h a r p
a r g u e s
t h a t H e l l u m s ' s
t e s t i m o n y
on c r o s s -
e x a m i n a t i o n
t h a t
" [ i ] f I c o u l d have an o p i n i o n , y e s , she was
b r u t a l l y r a p e d " a l s o i n v a d e d t h e p r o v i n c e o f t h e j u r y and t h a t
p l a i n
e r r o r
o c c u r r e d
when
t h e
t r i a l
c o u r t
a d m i t t e d
t h e
t e s t i m o n y
i n t o
e v i d e n c e .
A c c o r d i n g
t o
S h a r p ,
H e l l u m s ' s
o p i n i o n
t h a t t h e v i c t i m h a d b e e n b r u t a l l y
r a p e d
i n v a d e d t h e
2The
A d v i s o r y
C o m m i t t e e ' s
N o t e s t o R u l e
7 0 1 , A l a . R.
E v i d . ,
s t a t e :
"Alabama h a s l o n g r e c o g n i z e d ... t h a t a l a y w i t n e s s
may g i v e an o p i n i o n when t h e w i t n e s s i s u n a b l e t o
r e l a t e t h e f a c t s t o t h e j u r o r s w e l l enough t o p l a c e
t h e j u r o r s i n as g o o d a p o s i t i o n as t h e w i t n e s s was
i n t o r e a c h an o p i n i o n o r t o draw a c o n c l u s i o n . Some
w o u l d c a l l t h i s t h e ' c o l l e c t i v e f a c t s ' e x c e p t i o n t h e
o p i n i o n e v i d e n c e
r u l e . "
14
1080959
p r o v i n c e
o f
t h e
j u r y
and
a l l o w i n g
h e r
t o
so
t e s t i f y
c o n s t i t u t e d p l a i n e r r o r .
The
r e c o r d
e s t a b l i s h e s
t h a t
t h e
a l l e g e d
e r r o r
i n
t h e
a d m i s s i o n o f H e l l u m s ' s o p i n i o n t e s t i m o n y d i d n o t o c c u r b e c a u s e
S h a r p m e r e l y r e m a i n e d s i l e n t and p e r m i t t e d
t h e e r r o r , i f
any,
t o
o c c u r .
The
r e c o r d
u n e q u i v o c a l l y
e s t a b l i s h e s
t h a t
S h a r p ,
h i m s e l f , c r e a t e d t h e a l l e g e d e r r o r by
e l i c i t i n g t h e
t e s t i m o n y .
"'"'"'A p a r t y
c a n n o t assume
i n c o n s i s t e n t
p o s i t i o n s
i n
t h e
t r i a l
and
a p p e l l a t e
c o u r t s
and,
as
a
g e n e r a l
r u l e ,
w i l l
n o t
be
p e r m i t t e d
t o
a l l e g e
an
e r r o r
i n
t h e
t r i a l c o u r t p r o c e e d i n g s w h i c h
was
i n v i t e d
by
h i m
o r
was
a
n a t u r a l
c o n s e q u e n c e
o f
h i s
own
a c t i o n s . ' " '
S l a t o n v. S t a t e ,
680
So.
2d
879,
900
( A l a . C r i m .
App.
1 9 9 5 ) ,
a f f ' d ,
680
So.
2d
909
( A l a .
1 9 9 6 ) ,
c e r t .
d e n i e d ,
519
U.S.
1079,
117
S.Ct.
742,
136
L . E d . 2 d
680
( 1 9 9 7 ) ,
q u o t i n g
C a m p b e l l
v.
S t a t e ,
570
So.
2d
1276,
1282
( A l a .
C r i m .
App.
1 9 9 0 ) .
As
we
h a v e
s a i d
i n
a p p l y i n g
t h e
i n v i t e d - e r r o r
d o c t r i n e ,
' " I t w o u l d
be
a
s a d
c o m m e n t a r y upon
t h e
v i t a l i t y
o f
t h e
j u d i c i a l
p r o c e s s
i f
an
a c c u s e d c o u l d
r e n d e r
i t i m p o t e n t
by
h i s own
c h o i c e . " '
M u r r e l l
v.
S t a t e ,
377
So.
2d
1102,
1105
( A l a . C r i m . A p p . ) , c e r t .
d e n i e d ,
377
So.
2d
1108
( A l a .
1 9 7 9 ) ,
q u o t i n g
A l d r i d g e
v.
S t a t e ,
278
A l a .
470,
474,
179
So.
2d
51,
54
15
1080959
( 1 9 6 5 ) .
'The
i n v i t e d
e r r o r
r u l e
has
b e e n
a p p l i e d
e q u a l l y
i n
c a p i t a l
c a s e s
and
n o n c a p i t a l
c a s e s . '
R o g e r s v . S t a t e , 630 So.
2d 78, 84 ( A l a . C r i m . App.
1 9 9 1 ) ,
r e v ' d on o t h e r g r o u n d s ,
630 So.
2d
88
( A l a . 1 9 9 2 ) ,
a f f ' d
on
remand,
sub
nom.
M u s g r o v e
v .
S t a t e ,
638
So.
2d
1347 ( A l a .
C r i m . App. 1 9 9 2 ) ,
a f f ' d ,
638 So.
2d
1360
( A l a .
1 9 9 3 ) ,
c e r t .
d e n i e d ,
513 U.S.
845, 115 S . C t .
136, 130 L . E d . 2 d 78
( 1 9 9 4 ) . "
" ' P e r k i n s v. S t a t e , 808 So. 2d 1041 ( A l a .
C r i m . App.
1 9 9 9 ) ,
a f f ' d ,
80
8 So. 2d 1143
( A l a . 2 0 0 1 ) .
"'An i n v i t e d e r r o r i s w a i v e d ,
u n l e s s
i t r i s e s
t o t h e
l e v e l
o f
p l a i n
e r r o r . ' "
W i l l i a m s v .
S t a t e ,
710
So.
2d
1276,
1316 ( A l a .
C r i m . App. 1 9 9 6 ) ,
a f f ' d ,
710 So. 2d 1350 ( A l a .
1 9 9 7 ) ,
c e r t .
d e n i e d ,
524 U.S.
929, 118 S . C t . 2325, 141 L . E d . 2 d
699 ( 1 9 9 8 ) , q u o t i n g Ex p a r t e B a n k h e a d , 585
So. 2d 112, 126 ( A l a .
1 9 9 1 ) .
"To
r i s e t o
t h e l e v e l o f p l a i n e r r o r , t h e c l a i m e d
e r r o r
must
n o t
o n l y
s e r i o u s l y
a f f e c t
a
d e f e n d a n t ' s
' s u b s t a n t i a l
r i g h t s , '
b u t i t
must a l s o h a v e an u n f a i r
p r e j u d i c i a l
i m p a c t
on
t h e
j u r y ' s
d e l i b e r a t i o n s . "
Hyde
v .
S t a t e , 778 So. 2d 199, 209 ( A l a . C r i m . App.
1 9 9 8 ) ,
a f f ' d , 778 So. 2d 237
( A l a . 2 0 0 0 ) ,
c e r t . d e n i e d , 532 U.S. 907, 121 S . C t . 1233,
149 L . E d . 2 d 142
( 2 0 0 1 ) . '
"McNabb v . S t a t e , 887 So. 2d 929, 892-93 ( A l a . C r i m .
App. 2
0
0 1 ) . "
C l a r k v . S t a t e , 896 So. 2d 584, 640-41 ( A l a . C r i m . App. 2000)
( o p i n i o n
on
r e t u r n
t o
remand
and
on
a p p l i c a t i o n
f o r
r e h e a r i n g ) .
16
1080959
"The
U n i t e d S t a t e s Supreme C o u r t has
s t a t e d
t h a t
t h e
p l a i n
e r r o r
d o c t r i n e
s h o u l d
be
u s e d
i n
t h o s e
s i t u a t i o n s
t h a t
' " s e r i o u s l y
a f f e c t
t h e
f a i r n e s s ,
i n t e g r i t y
o r
p u b l i c
r e p u t a t i o n
o f
j u d i c i a l
p r o c e e d i n g s . . . . " '
U n i t e d
S t a t e s
v. Y o u n g , 470
U.S.
1,
15,
105
S.Ct.
1038,
1046,
84
L . E d . 2 d
1
( 1 9 8 5 ) ,
q u o t i n g
U n i t e d
S t a t e s
v.
A t k i n s o n ,
297
U.S.
157,
160,
56
S.Ct.
391,
392,
80
L.Ed.
555
( 1 9 3 6 ) . "
K n i g h t v.
S t a t e ,
675
So.
2d
487,
496
( A l a . C r i m . App.
1 9 9 5 ) .
The
C o u r t o f C r i m i n a l A p p e a l s i n L e w i s v. S t a t e ,
[Ms.
CR-
0 3 - 0 4 8 0 , November 2,
2 0 0 7 ] ___
So.
3d
___
( A l a . C r i m .
App.
2 0 0 6 ) ( o p i n i o n
on
r e t u r n
t o r e m a n d ) , a d d r e s s e d
t h e
u l t i m a t e -
i s s u e r u l e i n a p l a i n - e r r o r c o n t e x t ,
s t a t i n g :
" L e w i s
a l s o a r g u e s
t h a t
'the
S t a t e
i m p r o p e r l y
e x a m i n e d
[ e y e w i t n e s s
A p r i l ]
H a r g e d o n . '
S p e c i f i c a l l y ,
L e w i s c o n t e n d s
t h a t
t h e
S t a t e
s h o u l d
n o t
h a v e a s k e d H a r g e d o n what F r e e
and
L e w i s
'were
g o i n g
t o
do
w i t h
Kaye
[ t h e
v i c t i m ] , ' b e c a u s e
t h e
q u e s t i o n
c a l l e d f o r ' s p e c u l a t i o n , s t a t e o f m i n d ,
and
v i o l a t e d
R u l e
7 0 4 [ ,
A l a .
R.
E v i d . , ]
i n
t h a t
i t
v i o l a t e s
t h e
u l t i m a t e
i s s u e
r u l e . '
( L e w i s ' s
b r i e f ,
p.
35.)
B e c a u s e t h i s c l a i m was
n o t
r a i s e d b e l o w ,
we
r e v i e w i t f o r p l a i n e r r o r .
"'The
q u e s t i o n
o f
a d m i s s i b i l i t y o f e v i d e n c e
i s
g e n e r a l l y
l e f t t o t h e d i s c r e t i o n o f t h e
t r i a l
c o u r t ,
and
t h e
t r i a l c o u r t ' s d e t e r m i n a t i o n
on t h a t
q u e s t i o n
w i l l
n o t
be
r e v e r s e d
e x c e p t upon a c l e a r s h o w i n g
o f
a b u s e o f d i s c r e t i o n . '
Ex p a r t e
L o g g i n s , 771
So.
2d
1093,
1103
( A l a . 2000 ).
R u l e
704,
A l a .
R.
E v i d . ,
p r o v i d e s
t h a t
' t e s t i m o n y
i n t h e
f o r m o f
an
o p i n i o n
o r i n f e r e n c e
o t h e r w i s e a d m i s s i b l e
i s t o be
e x c l u d e d
i f
i t e m b r a c e s
an
u l t i m a t e
i s s u e
t o be
d e c i d e d
by
t h e
t r i e r
o f
f a c t . '
'An
u l t i m a t e
i s s u e
has
b e e n
d e f i n e d as t h e
l a s t q u e s t i o n
t h a t must be
d e t e r m i n e d
by
t h e
j u r y .
See
B l a c k ' s
Law
D i c t i o n a r y
[1522
( 6 t h
17
1080959
e d .
1 9 9 0 ) ] . '
Tims v. S t a t e , 711 So. 2d 1118, 1125
( A l a . C r i m . App.
1 9 9 7 ) .
"As t h e S t a t e c o r r e c t l y p o i n t s o u t ,
t h e u l t i m a t e
i s s u e i n t h i s c a s e was w h e t h e r L e w i s p a r t i c i p a t e d i n
t h e
i n t e n t i o n a l
k i l l i n g
o f Tim K a y e , a n d , i f
s o ,
w h e t h e r t h e m u r d e r o c c u r r e d d u r i n g t h e c o u r s e o f a
f i r s t - d e g r e e
k i d n a p p i n g .
As
s e t o u t
i n o u r
r e c i t a t i o n o f f a c t s ,
H a r g e d o n
t e s t i f i e d a t l e n g t h
r e g a r d i n g t h e c i r c u m s t a n c e s
s u r r o u n d i n g
L e w i s
and
F r e e ' s b e a t i n g o f t h e v i c t i m , T i m K a y e .
D u r i n g h e r
t e s t i m o n y , H a r g e d o n
t o l d how L e w i s came o u t o f
h i s
m o b i l e home c a r r y i n g a s h o t g u n .
H a r g e d o n
r e c o u n t e d
h e r
f e a r and t h e n e e d t o ' g e t o u t o f t h e r e
...
[ b ] e c a u s e
t h e y were
f i g h t i n g and t h e r e were g u n s . '
(R. 239.) H a r g e d o n was a s k e d : 'What were [ L e w i s and
F r e e ]
g o i n g
t o do
t o Tim K a y e ? '
t o w h i c h
she
r e s p o n d e d :
' I g u e s s
f i n i s h
i t .
I d o n ' t know.' (R.
239.)
"We
do n o t c o n s i d e r
H a r g e d o n ' s
t e s t i m o n y t o
c o n s t i t u t e a comment on t h e u l t i m a t e i s s u e o f f a c t .
H a r g e d o n ' s
t e s t i m o n y was
n o t h i n g more
t h a n
a l a y
o p i n i o n
b a s e d
on
h e r
p e r s o n a l
k n o w l e d g e
and
o b s e r v a t i o n s o f what h a p p e n e d t h a t n i g h t .
R u l e 7 0 1 ,
A l a . R. E v i d . , p r o v i d e s :
" ' I f t h e w i t n e s s i s n o t t e s t i f y i n g as
an e x p e r t , t h e w i t n e s s ' s
t e s t i m o n y i n
t h e
f o r m o f an o p i n i o n o r i n f e r e n c e i s l i m i t e d
t o t h o s e
o p i n i o n s o r i n f e r e n c e s w h i c h a r e
(a)
r a t i o n a l l y b a s e d on t h e p e r c e p t i o n o f
t h e
w i t n e s s
and (b) h e l p f u l
t o a
c l e a r
u n d e r s t a n d i n g o f t h e w i t n e s s ' s t e s t i m o n y o r
t h e d e t e r m i n a t i o n o f a f a c t i n i s s u e . '
" H a r g e d o n ' s
o p i n i o n was
r a t i o n a l l y
b a s e d
on h e r
p e r c e p t i o n o f t h e e v e n t s
t h a t o c c u r r e d
t h a t
n i g h t
and h e r k n o w l e d g e o f t h e c i r c u m s t a n c e s
s u r r o u n d i n g
K a y e ' s m u r d e r . As s u c h , i t
was h e l p f u l t o a
c l e a r
u n d e r s t a n d i n g o f h e r t e s t i m o n y . See, e . g . , G a v i n v .
S t a t e ,
891 So. 2d 907
, 969-70
( A l a .
C r i m .
App.
18
1080959
2 0 0 3 ) ,
c e r t . d e n i e d , 891 So. 2d 998
( A l a . 2 0 0 4 ) .
We
do n o t
c o n s i d e r
H a r g e d o n ' s t e s t i m o n y an
o p i n i o n
as
t o
L e w i s ' s
g u i l t
o r
as
t o how
h i s c a s e
s h o u l d
be
r e s o l v e d .
M o r e o v e r , we
f i n d i t u n l i k e l y t h a t any
o f
t h e j u r o r s w o u l d h a v e s u b s t i t u t e d H a r g e d o n ' s
o p i n i o n
f o r
t h e i r own
j u d g m e n t .
Thus, H a r g e d o n ' s
t e s t i m o n y
d i d n o t v i o l a t e t h e u l t i m a t e - i s s u e
r u l e . "
So.
3d a t
.
We
c o n c l u d e
t h a t
t h e
a d m i s s i o n
o f
H e l l u m s ' s
t e s t i m o n y
t h a t
t h e
v i c t i m had b e e n b r u t a l l y r a p e d
d i d n o t
c o n s t i t u t e
p l a i n e r r o r .
L i k e t h e w i t n e s s ' s t e s t i m o n y i n L e w i s , w h i c h d i d
n o t comment on an u l t i m a t e
i s s u e o f f a c t , H e l l u m s ' s
t e s t i m o n y
d i d n o t embrace an u l t i m a t e i s s u e o f f a c t .
H e r e , t h e
u l t i m a t e
i s s u e f o r t h e j u r y t o d e t e r m i n e was w h e t h e r S h a r p m u r d e r e d t h e
v i c t i m
a n d ,
i f s o , w h e t h e r
t h e m u r d e r
o c c u r r e d
d u r i n g
t h e
c o u r s e
o f t h e
r a p e .
H e l l u m s ' s
t e s t i m o n y
d i d n o t
i m p l i c a t e
S h a r p , n o r d i d i t o f f e r an o p i n i o n on w h e t h e r he was
g u i l t y o r
how
t h e c a s e
s h o u l d be
r e s o l v e d .
Thus, H e l l u m s ' s
t e s t i m o n y
d i d n o t v i o l a t e t h e u l t i m a t e - i s s u e r u l e , and e r r o r , i f any, i n
i t s a d m i s s i o n d i d n o t
r i s e t o t h e
l e v e l o f p l a i n e r r o r .
B a s e d
on
o u r
r e v i e w
o f
t h e
e n t i r e
r e c o r d ,
we
f u r t h e r
c o n c l u d e
t h a t
e r r o r ,
i f any,
i n
t h e
S t a t e ' s
o p e n i n g
and
c l o s i n g a r g u m e n t s d i d n o t
r i s e t o t h e
l e v e l o f p l a i n e r r o r .
" ' I n B e r g e r v. U n i t e d S t a t e s , 2
95
U.S.
78, 55 S.Ct.
629, 79 L.Ed.
1314
( 1 9 3 5 ) , t h e
19
1080959
U n i t e d
S t a t e s
Supreme
C o u r t
s t a t e d
t h e
f o l l o w i n g
c o n c e r n i n g
a
p r o s e c u t o r ' s
r e s p o n s i b i l i t y :
"'"The
U n i t e d
S t a t e s
A t t o r n e y
i s t h e
r e p r e s e n t a t i v e
n o t
o f an
o r d i n a r y
p a r t y
t o a
c o n t r o v e r s y , b u t o f a s o v e r e i g n t y
whose
o b l i g a t i o n
t o
g o v e r n
i m p a r t i a l l y
i s as c o m p e l l i n g
as
i t s
o b l i g a t i o n t o g o v e r n a t a l l ;
and whose i n t e r e s t , t h e r e f o r e , i n
a
c r i m i n a l
p r o s e c u t i o n
i s n o t
t h a t
i t s h a l l
w i n a
c a s e ,
b u t
t h a t
j u s t i c e
s h a l l be d o n e .
As
s u c h ,
he
i s i n a
p e c u l i a r and
v e r y
d e f i n i t e
s e n s e t h e
s e r v a n t
o f t h e l a w , t h e t w o f o l d
a i m o f
w h i c h
i s t h a t
g u i l t
s h a l l
n o t
e s c a p e o r i n n o c e n c e
s u f f e r .
He
may
p r o s e c u t e
w i t h
e a r n e s t n e s s
and
v i g o r - - i n d e e d ,
he
s h o u l d
do
s o .
B u t , w h i l e
he may
s t r i k e
h a r d b l o w s , he i s n o t a t
l i b e r t y
t o
s t r i k e
f o u l
o n e s .
I t i s as
much
h i s d u t y
t o
r e f r a i n
f r o m
i m p r o p e r
methods
c a l c u l a t e d t o
p r o d u c e a w r o n g f u l
c o n v i c t i o n as
i t
i s t o u s e
e v e r y
l e g i t i m a t e
means t o b r i n g a b o u t a j u s t one.
" ' " I t
i s
f a i r
t o s a y
t h a t
t h e a v e r a g e j u r y , i n a g r e a t e r o r
l e s s d e g r e e , has c o n f i d e n c e
t h a t
t h e s e
o b l i g a t i o n s ,
w h i c h
so
p l a i n l y r e s t upon t h e p r o s e c u t i n g
a t t o r n e y ,
w i l l
be
f a i t h f u l l y
o b s e r v e d .
C o n s e q u e n t l y , i m p r o p e r
s u g g e s t i o n s ,
i n s i n u a t i o n s
a n d ,
e s p e c i a l l y ,
a s s e r t i o n s
o f
p e r s o n a l
k n o w l e d g e
a r e a p t t o
c a r r y
much
w e i g h t
a g a i n s t
t h e
20
1080959
a c c u s e d when t h e y s h o u l d p r o p e r l y
c a r r y n o n e . "
"'295
U.S.
a t
88 ,
55
S.Ct.
62 9.
"'A
p r o s e c u t o r ' s
s t a t e m e n t
must be
v i e w e d
i n
t h e
c o n t e x t
o f
a l l
o f
t h e
e v i d e n c e
p r e s e n t e d
and
i n
t h e
c o n t e x t
o f
t h e
c o m p l e t e
c l o s i n g a r g u m e n t s t o t h e
j u r y . ' "
R e e v e s v. S t a t e , 807 So. 2d 18, 44-45 ( A l a .
C r i m .
App.
2000 ),
c e r t .
d e n i e d ,
534
U.S.
1026,
122
S.Ct.
558,
151
L . E d . 2 d
433
( 2 0 0 1 ) ,
q u o t i n g R o b e r t s
v.
S t a t e , 735
So.
2d 1244,
1253
( A l a . C r i m . App.
1 9 9 7 ) .
The
s t a n d a r d f o r e v a l u a t i n g t h e p r o p r i e t y o f a
p r o s e c u t o r ' s
a r g u m e n t
i s
w h e t h e r
t h e
a r g u m e n t
"so
i n f e c t e d
t h e
t r i a l
w i t h
u n f a i r n e s s
as
t o
make
t h e
r e s u l t i n g
c o n v i c t i o n
a
d e n i a l
o f
due
p r o c e s s . "
D a r d e n
v.
W a i n w r i g h t ,
477
U.S.
168,
106
S.Ct.
2464, 91 L . E d . 2 d 144
( 1 9 8 6 ) .
"'"'A
p r o s e c u t o r
may
a r g u e
i n
c l o s i n g
any
e v i d e n c e
t h a t
was
p r e s e n t e d
a t
t r i a l .
He
may
a l s o
" ' p r e s e n t
h i s
i m p r e s s i o n s
f r o m
t h e e v i d e n c e .
He may
a r g u e
e v e r y
m a t t e r
o f
l e g i t i m a t e
i n f e r e n c e
and
may
e x a m i n e ,
c o l l a t e ,
s i f t ,
and
t r e a t t h e e v i d e n c e
i n h i s
own
way.'"
W i l l i a m s
v.
S t a t e ,
601
So.
2d 1062,
1073
( A l a . C r .
App.
1 9 9 1 ) , a f f ' d w i t h o u t o p i n i o n ,
662
So.
2d
929
( A l a . 1 9 9 2 ) ,
q u o t i n g
Donahoo
v.
S t a t e ,
505
So.
2d
1067,
1 0 7 3 . ' "
" ' B r o a d n a x v.
S t a t e ,
825
So.
2d
134,
208
( A l a .
C r i m . App.
2 0 0 0 ) , q u o t i n g W i l l i a m s v.
S t a t e ,
627
So.
2d
994
( A l a . C r i m .
App.
1 9 9 2 ) , a f f ' d ,
627
So.
2d 999
( A l a . 1 9 9 3 ) . '
21
1080959
" T u r n e r v. S t a t e , 924 So. 2d 737, 766-67 ( A l a . C r i m .
App.
2
0
0 2 ) . "
Ex p a r t e W a l k e r ,
972 So. 2d 737, 744-45
( A l a . 2 0 0 7 ) .
The
S t a t e ' s
s t a t e m e n t s
w i t h
r e g a r d t o H e l l u m s and h e r
t e s t i m o n y
d u r i n g
i t s o p e n i n g
and
c l o s i n g
a r g u m e n t s ,
when
v i e w e d i n c o n t e x t , do n o t r i s e t o t h e l e v e l o f p l a i n
e r r o r
t h a t so i n f e c t e d t h e t r i a l w i t h u n f a i r n e s s as t o make
S h a r p ' s
c o n v i c t i o n a d e n i a l o f due p r o c e s s .
I n d e e d , as i l l u s t r a t e d b y
t h e f o l l o w i n g s t a t e m e n t s o f S h a r p ' s c o u n s e l d u r i n g h i s c l o s i n g
a r g u m e n t ,
S h a r p
r e c o g n i z e d H e l l u m s ' s
t e s t i m o n y f o r what i t
was:
"Then we
h e a r d
f r o m
N u r s e
H e l l u m s .
Now i n
t h i r t e e n
y e a r s o f
t r y i n g
c r i m i n a l
c a s e s
I
d o n ' t
t h i n k
I ' v e e v e r
h e a r d
what
i s s u p p o s e d
t o be
u n b i a s e d m e d i c a l o b j e c t i v e t e s t i m o n y b r o u g h t t o you
q u i t e
l i k e N u r s e H e l l u m s d i d . And t h e r e a s o n i s
she
knew
[ t h e v i c t i m ] .
She t o l d you t h a t .
And t h e
j u d g e i s g o i n g t o i n s t r u c t you on when you w e i g h t h e
c r e d i b i l i t y
o f w i t n e s s e s and
t h e i r
t e s t i m o n y and
w h a t e v e r
w e i g h t
y o u ' r e
g o i n g t o g i v e t o them
t h a t
you c a n c o n s i d e r what
k i n d o f b i a s a w i t n e s s may
h a v e .
You c a n c o n s i d e r t h a t
l e g a l l y i n y o u r w e i g h t
o f
t h e i r t e s t i m o n y .
You c a n c o n s i d e r i f t h e r e ' s a
d e g r e e o f k i n s h i p o r f r i e n d s h i p o r w h a t e v e r
i n t e r e s t
i n t h e outcome one may have i n t h e c a s e .
"Now K i m H e l l u m s t e s t i f i e d as a S t a t e ' s w i t n e s s .
And she s o u n d e d v e r y much
l i k e a S t a t e ' s w i t n e s s .
She e v e n u s e d a t e r m t y p i c a l l y r e s e r v e d f o r p o l i c e ,
' I was g o i n g t o p r e s e r v e t h e c h a i n o f c u s t o d y o f
t h i s
s a m p l e . '
And t h e n she t e s t i f i e d t o s o m e t h i n g
a
l i t t l e u n u s u a l .
She's on t h e s t a n d t a l k i n g
a b o u t
22
1080959
h e r o b j e c t i v e o b s e r v a t i o n s
and
she s a i d [ t h e
v i c t i m ]
had
a b e a u t i f u l h e a d o f
h a i r .
What d o e s t h a t h a v e
t o do w i t h h e r o b s e r v a t i o n
m e d i c a l l y o f t h a t l a d y
a t
t h e h o s p i t a l t h a t d a y ?
O t h e r t h a n t o show s h e ' s
so
e m o t i o n a l l y w r a p p e d up
i n t h i s
t h a t s h e ' s g o i n g
t o
s a y w h a t e v e r she n e e d s t o s a y .
And
I g u e s s t h e most
t r o u b l i n g
p a r t
o f Ms.
H e l l u m s ' s
t e s t i m o n y ,
b e c a u s e
she g o t a l i t t l e
h o s t i l e when p r e s s e d a b o u t
a n y t h i n g
t h a t r a n
c o n t r a r y
t o what she
had
t o s a y .
I n
f a c t ,
I a s k e d h e r a b o u t h e r
q u a l i f i c a t i o n s and
she
r a t t l e d
o f f
h e r
resume o f
a l l o f
h e r
t r a i n i n g
t o make
t h e
d e t e r m i n a t i o n
t h a t
t h i s was
a s e x u a l
a s s a u l t .
" W e l l , h e r w o r d s were ' [ I ] t was
one
o f t h e most
t r a u m a t i c
t h i n g s
I've
e v e r s e e n . '
[The
S t a t e ]
j u s t
s a i d she u s e d t h e w o r d
' b r u t a l . '
And
t h e n t h e
o n l y
q u a l i f i e d m e d i c a l
d o c t o r
[Dr. S t e p h e n P a s t l i n i k ]
i s
p u t
on
t h e
s t a n d
and
he
t e l l s
you
t h e
c o m p l e t e
o p p o s i t e .
Dr.
P a s t l i n i k has p e r f o r m e d a l m o s t
t h r e e
t h o u s a n d
a u t o p s i e s
and
he
g e t s
on
t h a t
s t a n d
as
a
h i g h l y q u a l i f i e d p h y s i c i a n , m e d i c a l e x a m i n e r , a p r o ,
and
he
does
a
t h o r o u g h ,
o b j e c t i v e ,
p h y s i c a l
e x a m i n a t i o n .
And
h i s
e x a c t
w o r d s
w r i t t e n
i n
h i s
r e p o r t a r e
t h a t t h e v a g i n a l a r e a
and
t h e
l a b i a
a r e a
were f r e e o f t r a u m a .
F r e e o f t r a u m a .
T h a t d o e s n ' t
e v e n r e m o t e l y
f i t what Kim
H e l l u m s
s a i d .
And
t h e
S t a t e
t r i e d t o c l e a n t h a t up,
w e l l t h e r e may
be some
m e d i c a l
r e a s o n f o r i t n o t
-- t h a t r u n s a f o u l o f e v e n
what Dr.
P a s t l i n i k
s a i d when I a s k e d h i m
a b o u t
how
b r u i s i n g
t a k e s
p l a c e
and
how
i t can
be
m a i n t a i n e d
a f t e r
someone's
d e a t h .
And
p r o b a b l y
t h e
most
t e l l i n g q u e s t i o n
i n t h i s w h o l e t r i a l was
I a s k e d
Dr.
P a s t l i n i k i f someone t e s t i f i e d
j u s t b e f o r e
you
h e r e
t h a t
t h a t
was
t h e
most
t r a u m a t i c
s e x u a l
a s s a u l t
e v i d e n c e t h e y ' d e v e r s e e n , w o u l d t h a t be
c o n s i s t e n t
w i t h y o u r f i n d i n g s ?
And
he s a i d , ' [ H ] e c k no.'
Heck
no.
Who
a r e
you
g o i n g
t o b e l i e v e ?
[
3
] "
3 T h e
r e c o r d
i n d i c a t e s
t h a t
on
c r o s s - e x a m i n a t i o n
Dr.
P a s t l i n i k
t e s t i f i e d
t h a t
t h e
v i c t i m ' s
l a b i a
m a j o r a ,
l a b i a
m i n o r a ,
c l i t o r i s ,
and
v a g i n a l
e n t r u m were
f r e e
o f
t r a u m a .
23
1080959
When t h e s t a t e m e n t s o f t h e S t a t e a r e r e v i e w e d i n
t h e
c o n t e x t o f t h e r e c o r d i n
i t s
e n t i r e t y , e s p e c i a l l y t h e o p e n i n g
and
c l o s i n g a r g u m e n t s o f b o t h t h e S t a t e
a n d S h a r p , i t i s
a p p a r e n t
t h a t
any e r r o r
i n t h e S t a t e ' s
a r g u m e n t d i d
n o t
s e r i o u s l y a f f e c t t h e f a i r n e s s o r i n t e g r i t y o f S h a r p ' s t r i a l o r
s u b s t a n t i a l l y p r e j u d i c e
S h a r p .
P l a i n e r r o r d i d
n o t o c c u r .
S h a r p f u r t h e r c o n t e n d s t h a t h i s
d u e - p r o c e s s r i g h t s were
v i o l a t e d when t h e S t a t e
u s e d i t s
p e r e m p t o r y
c h a l l e n g e s
t o
remove A f r i c a n - A m e r i c a n s f r o m t h e j u r y v e n i r e , t h u s
v i o l a t i n g
B a t s o n v . K e n t u c k y , 476 U.S. 79
( 1 9 8 6 ) .
S p e c i f i c a l l y , he
a r g u e s
t h a t
p l a i n e r r o r
o c c u r r e d
d u r i n g t h e j u r y
s e l e c t i o n
when, he s a y s , t h e S t a t e
f a i l e d t o s t r i k e
p r o s p e c t i v e
w h i t e
When a s k e d by S h a r p ' s c o u n s e l i f
t h e i n j u r i e s t o t h e v i c t i m ' s
g e n i t a l i a were t r a u m a t i c , he
s t a t e d t h a t t h e v i c t i m h a d two
l a c e r a t i o n s t o t h e b o t t o m o f h e r v a g i n a b u t t h a t he w o u l d n o t
" c a l l t h a t t r a u m a t i c . "
On r e d i r e c t e x a m i n a t i o n , D r . P a s t l i n i k
s t a t e d t h a t t h e i n j u r i e s t o t h e v i c t i m ' s b o d y were
c o n s i s t e n t
w i t h
i n j u r i e s s u f f e r e d b y o t h e r
v i c t i m s o f s e x u a l
a s s a u l t a n d
t h a t when he e x a m i n e d t h e v i c t i m ' s b o d y
l i v i d i t y may h a v e
o b s c u r e d
some o f t h e b r u i s i n g
H e l l u m s h a d o b s e r v e d .
He
f u r t h e r
s t a t e d
t h a t t h e l a c e r a t i o n s t o t h e v i c t i m ' s
r e c t u m
were
an
i n d i c a t i o n o f
p e n e t r a t i v e
t r a u m a
t o t h e r e c t u m
s u f f e r e d
a t o r n e a r
t h e t i m e
o f d e a t h .
On
r e - c r o s s -
e x a m i n a t i o n ,
D r .
P a s t l i n i k
t e s t i f i e d
t h a t
he
c o u l d
n o t
d e t e r m i n e w h e t h e r t h e i n j u r i e s were t h e r e s u l t o f c o n s e n s u a l
o r n o n c o n s e n s u a l
i n t e r c o u r s e .
24
1080959
j u r o r s
f o r
t h e same r e a s o n s
i t s t r u c k
p r o s p e c t i v e
A f r i c a n -
A m e r i c a n j u r o r s .
" ' " ' F o r p l a i n e r r o r t o e x i s t i n t h e
B a t s o n
c o n t e x t , t h e r e c o r d must r a i s e an
i n f e r e n c e
t h a t
t h e
s t a t e
[ o r t h e d e f e n d a n t ]
e n g a g e d
i n
" p u r p o s e f u l
d i s c r i m i n a t i o n "
i n
t h e
e x e r c i s e o f i t s p e r e m p t o r y c h a l l e n g e s .
See
Ex
p a r t e W a t k i n s ,
509
So.
2d
1074
( A l a . ) ,
c e r t . d e n i e d ,
484
U.S.
918,
108
S. C t . 2 69,
98 L . E d . 2 d 226
( 1 9 8 7 ) . ' " '
" S m i t h
v.
S t a t e ,
756
So.
2d
8
92 , 915
( A l a .
C r i m .
App.
1
9 9 8 ) ,
a f f ' d ,
756
So.
2d
957
( A l a .
2 0 0 0 ) ( q u o t i n g
R i e b e r
v.
S t a t e ,
663
So.
2d
985,
991
( A l a .
C r i m .
App.
1 9 9 4 ) ,
q u o t i n g
i n
t u r n
o t h e r
c a s e s ) . "
Ex p a r t e W a l k e r ,
972
So.
2d a t
742.
F o l l o w i n g
t h e
s t r i k e s
f o r
c a u s e ,
14
A f r i c a n - A m e r i c a n s
r e m a i n e d on
t h e v e n i r e .
The
S t a t e had
30 p e r e m p t o r y
s t r i k e s
t o
e x e r c i s e ;
S h a r p
had
29.
The
S t a t e
u s e d
i t s p e r e m p t o r y
s t r i k e s t o remove 11 o f t h e 14 A f r i c a n - A m e r i c a n
v e n i r e m e m b e r s .
S h a r p s t r u c k two A f r i c a n - A m e r i c a n
v e n i r e m e m b e r s .
One A f r i c a n -
A m e r i c a n v e n i r e m e m b e r s e r v e d
on S h a r p ' s j u r y .
The
S t a t e
m a i n t a i n s
t h a t
no
i n f e r e n c e
can
be made f r o m
t h e
r e c o r d
t h a t
i t e n g a g e d
i n
p u r p o s e f u l
d i s c r i m i n a t i o n
b e c a u s e , i t s a y s , t h e r e c o r d c o n t a i n s r a c e - n e u t r a l r e a s o n s f o r
s t r i k i n g
t h e
11
A f r i c a n - A m e r i c a n
v e n i r e m e m b e r s .
We
h a v e
r e v i e w e d
t h e
v o i r
d i r e
and
t h e
j u r y
q u e s t i o n n a i r e s
o f
t h e
25
1080959
v e n i r e m e m b e r s .
4
Some o f t h e v e n i r e m e m b e r s a n s w e r e d
q u e s t i o n s
d u r i n g
v o i r
d i r e ;
o t h e r s
d i d
n o t .
The
r e c o r d
s u p p o r t s
S h a r p ' s c o n t e n t i o n t h a t t h e S t a t e s t r u c k some
A f r i c a n - A m e r i c a n
j u r o r s whose r e s p o n s e s
t o
t h e
q u e s t i o n s
p o s e d
i n t h e
j u r y
q u e s t i o n n a i r e s were s i m i l a r t o t h e r e s p o n s e s o f w h i t e
j u r o r s ,
a l t h o u g h
i t d i d n o t
s t r i k e
t h e w h i t e
j u r o r s .
T h e r e f o r e ,
t h e
r e c o r d c r e a t e s
an i n f e r e n c e o f d i s c r i m i n a t i o n on t h e p a r t
o f
t h e S t a t e .
A l t h o u g h
t h e S t a t e may
have r a c e - n e u t r a l and
non-
d i s c r i m i n a t o r y r e a s o n s f o r i t s a c t i o n s , i t was
n e v e r r e q u i r e d
t o
a r t i c u l a t e them on t h e r e c o r d , and
t h e r e c o r d on
i t s f a c e
i s n o t a d e q u a t e f o r us t o d e t e r m i n e w h e t h e r a B a t s o n
v i o l a t i o n
o c c u r r e d .
T h e r e f o r e ,
a l t h o u g h
we
r e a l i z e
t h a t t h e
C o u r t
o f
C r i m i n a l A p p e a l s d i d n o t have b e f o r e
i t and
was
n o t
r e q u i r e d
t o
r e v i e w
t h e
j u r o r
q u e s t i o n n a i r e s ,
we
c o n c l u d e
t h a t
i t i s
n e c e s s a r y
t o r e v e r s e i t s j u d g m e n t and remand t h i s c a s e t o
t h e
C o u r t o f C r i m i n a l A p p e a l s f o r i t t o o r d e r f u r t h e r
p r o c e e d i n g s
c o n s i s t e n t w i t h t h i s o p i n i o n .
See
F l o y d v. S t a t e ,
[Ms. CR-05-
0 935,
S e p t e m b e r
28,
2007]
So.
3d
( A l a . C r i m .
App.
4 T h e q u e s t i o n n a i r e s w e r e n o t
i n c l u d e d
i n t h e
r e c o r d
on
a p p e a l .
See R u l e 1 0 ( a ) ( 6 ) , A l a . R. App.
P.
However, p u r s u a n t
t o
R u l e
1 8 . 2 ( b ) ,
A l a .
R.
C r i m .
P.,
we
r e q u e s t e d
t h a t
t h e
c i r c u i t
c o u r t
c l e r k
f o r w a r d
t o
t h i s
C o u r t
t h e
j u r o r
q u e s t i o n n a i r e s
t o
f a c i l i t a t e
o u r
p l a i n - e r r o r
r e v i e w .
26
1080959
2 0 0 7 ) ;
L e w i s v . S t a t e , s u p r a .
I f t h e S t a t e c a n n o t
p r o v i d e
r a c i a l l y
n e u t r a l
r e a s o n s
f o r t h e u s e o f i t s p e r e m p t o r y
c h a l l e n g e s a g a i n s t A f r i c a n - A m e r i c a n v e n i r e m e m b e r s , S h a r p must
r e c e i v e a new
t r i a l .
Ex p a r t e B a n k h e a d , 585 So. 2d 112
( A l a .
1 9 9 1 ) ; Ex p a r t e J a c k s o n , 516 So. 2d 768 ( A l a . 1 9 8 6 ) .
REVERSED AND REMANDED.
Cobb, C . J . , and W o o d a l l ,
S m i t h ,
B o l i n , and P a r k e r ,
J J . ,
c o n c u r .
L y o n s and M u r d o c k , J J . , c o n c u r i n t h e r e s u l t .
Shaw, J . , r e c u s e s
h i m s e l f . *
* J u d g e Shaw was a member o f t h e C o u r t o f C r i m i n a l A p p e a l s
when t h a t c o u r t c o n s i d e r e d
t h i s
c a s e .
27 | December 4, 2009 |
fc416716-b0d1-4060-a5b4-ca29883bf6de | Ex parte State of Alabama. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: James Shouldis v. State of Alabama) | N/A | 1080186 | Alabama | Alabama Supreme Court | REL:ll/13/2009
Notice: T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e
advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e
r e q u e s t e d t o n o t i f y t h e
Reporter of
Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741 ((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may
be
made b e f o r e
t h e o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1080186
Ex p a r t e S t a t e o f
Alabama
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In r e : James S h o u l d i s
v.
S t a t e o f Alabama)
(Baldwin C i r c u i t Court, CC-02-260.60;
Court o f C r i m i n a l Appeals, CR-06-1425)
BOLIN,
J u s t i c e .
The w r i t o f c e r t i o r a r i i s q u a s h e d .
1080186
I n q u a s h i n g t h e w r i t o f c e r t i o r a r i ,
t h i s C o u r t d o e s n o t
w i s h t o be u n d e r s t o o d as a p p r o v i n g a l l
t h e l a n g u a g e ,
r e a s o n s ,
o r
s t a t e m e n t s
o f l a w i n t h e C o u r t
o f C r i m i n a l
A p p e a l s '
o p i n i o n .
H o r s l e y v . H o r s l e y , 291 A l a . 782, 280 So. 2d 155
( 1 9 7 3 ) .
WRIT QUASHED.
L y o n s , W o o d a l l ,
S t u a r t , a n d M u r d o c k , J J . , c o n c u r .
Cobb, C . J . ,
r e c u s e s h e r s e l f .
2 | November 13, 2009 |
2adbdfe5-5984-4185-bfdc-ae85722015e3 | Ex parte Nancy Worley, individually, and Beth Chapman, individually and in her official capacity as Secetary of State. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Anita Tatum v. Nancy Worley, in her individual capacity and Beth Chapman, in her official capacity as Alabama Secretary of State and in her individual capacity) | N/A | 1070543 | Alabama | Alabama Supreme Court | Rel. 12/30/2009
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
____________________
1070543
____________________
Ex parte Nancy Worley, individually, and Beth Chapman,
individually and in her official capacity as Secretary of
State
PETITION FOR WRIT OF MANDAMUS
(In re: Anita Tatum
v.
Nancy Worley, in her individual capacity, and Beth Chapman,
in her official capacity as Secretary of State and in her
individual capacity)
(Montgomery Circuit Court, CV-07-879)
PARKER, Justice.
1070543
2
Nancy Worley, Alabama's former secretary of state, and
her successor, Beth Chapman, the current secretary of state,
petition this Court seeking a writ of mandamus directing the
Montgomery Circuit Court to vacate its order of December 13,
2007, denying their motion for a judgment on the pleadings
seeking the dismissal of the claims of Worley's former
subordinate, Anita Tatum, based on lack of subject-matter
jurisdiction. For the reasons presented below, we issue the
writ.
Background and Procedural Posture
On October 19, 2004, Tatum resigned her position in the
Office of the Secretary of State as supervisor of voter
registration. On October 29, 2004, she filed a notice of
appeal to the State Personnel Board, alleging that her
resignation was coerced and that it was, in actuality, not a
resignation but an involuntary "constructive" termination.
According to the complaint Tatum filed in the Montgomery
Circuit Court, Worley called Tatum to Worley's office at about
3:30 p.m. on October 19, 2004, and demanded an explanation for
a discrepancy between the number of registered voters on the
Secretary of State’s Web site and the number of registered
1070543
3
voters on the Alabama Voter Information Network ("ALVIN"), the
statewide voter-registration system. Worley directed Tatum to
provide an explanation for the discrepancy by 5:00 p.m. that
day.
Tatum alleged that because of her lack of technical
expertise with ALVIN, completing the task would require the
assistance of an experienced technician. According to Tatum,
Worley denied her request for the assistance of the computer
technician responsible for maintaining ALVIN. Tatum further
alleges that Worley did not provide her with information
identifying the specific counties in which the discrepancies
existed.
When she was unsuccessful in identifying the reason for
the discrepancies within the required time, Tatum drafted and
presented a memorandum to Worley stating that she needed more
time to complete the task. Tatum contends that Worley
responded in a "hostile and demeaning tone," stating that a
reporter was asking questions about the discrepancies and that
Tatum could either resign or be fired. Tatum alleged that
later that day Worley delivered to her a prepared letter of
resignation and demanded that Tatum make an immediate decision
1070543
4
regarding her alternatives. Tatum requested time to consider
her options and to consult with legal counsel, but Worley
denied the request. Instead, Tatum alleges, Worley summoned
the personnel director for the Secretary of State's Office,
who gave Tatum what she describes as "tentative, incomplete,
and inaccurate advice concerning her two options." Allegedly
fearing that termination would cause a forfeiture of the
retirement benefits she had accrued during 21 years of state
employment, Tatum signed the letter of resignation.
Worley's and Chapman's version of these facts, as
presented in their joint brief to this Court, is slightly
different, although the differences are not substantial.
Their brief states that Worley gave Tatum the choice either of
resigning or of being suspended pending an investigation.
Also, according to the version of the facts in their brief,
the tone of the exchanges between Worley and Tatum was matter-
of-fact, rather than hostile.
After consulting with legal counsel, Tatum decided to
appeal her resignation, which she considered to be a
"constructive termination," and 10 days later, on October 29,
2004, Tatum filed a notice of appeal with the State Personnel
1070543
5
Board. The content of the notice of appeal is unavailable to
us, but in a letter dated November 5, 2004, to Tatum's legal
counsel, the Personnel Board advised Tatum as follows:
"Our records ... indicate that [Tatum] resigned her
position .... Our rules do not allow an appeal of a
resignation,
nor
do
we
have
jurisdiction
to
determine whether a constructive discharge occurred
under our termination appeal statute.
"Based on your letter, however, it appears that
you are alleging that retaliation or discrimination
by
the
appointing
authority
prompted
the
resignation. ... If this is the basis of your
complaint, an appeal right exists pursuant to Rule
670-X-4-.03 of the Rules of the State personnel
Board which states in part:
"'Any applicant or employee who has reason
to believe that he has been discriminated
against because or religious or political
opinions or affiliations or race, sex,
national origin, age or handicap in any
personnel action may appeal to the State
Personnel Board.'
"Should the Board determine that discrimination
has occurred, it has the authority to reinstate
[Tatum] or take other appropriate corrective action.
Please advise how you wish to proceed."
Tatum's brief, Exh. H.
Tatum apparently indicated to the Personnel Board that
her appeal included a claim under Rule 670-X-4-.03, Ala.
Admin. Code (Alabama State Personnel Board), because, after a
three-day hearing on November 14-16, 2005, the administrative
1070543
The parties do not explain the significance of the phrase
1
"facts which prove to be false or inaccurate," nor do they
provide the Court a copy of the administrative ruling, which
Worley and Chapman refer to as a 56-page opinion.
6
law judge hearing the appeal concluded both that Tatum had
resigned her position, obviating the Board's jurisdiction over
the appeal, and that Worley’s actions did not constitute an
unlawful form of nonmerit-factor discrimination sufficient to
trigger
jurisdiction
under
Rule
670-X-4-.03.
The
administrative law judge therefore determined that the State
Personnel Board did not have jurisdiction over the appeal, but
she recommended to the Board that the nonmerit factors under
which the Board may exercise jurisdiction be extended to
include actions based upon "facts which prove to be false or
inaccurate." Tatum then appealed the decision of the
1
administrative law judge to the full State Personnel Board.
On April 18, 2007, that Board issued the following decision:
"This matter came before the Board upon the
authority of Ala. Admin. Code § 670-X-4-.03. [Tatum]
resigned her position with the Secretary of State's
Office and thereafter filed this appeal. This matter
was assigned to Julia J. Weller as Administrative
Law
Judge
who
recommended
the
extension
of
jurisdiction of a non-merit factor to include
actions based upon 'facts which prove to be false or
inaccurate.'
"The Board finds that there was a resignation
1070543
7
and the Board declines to extend jurisdiction under
Ala. Admin. Code § 670-X-4-.03 to include as a non-
merit factor 'facts which prove to be false or
inaccurate.'
"....
"It is therefore the Order of this Board that
this APPEAL is DISMISSED WITH PREJUDICE."
Petition, Exh. F (capitalization in original).
On May 18, 2007, Tatum filed a notice of appeal to the
Montgomery Circuit Court, as required by § 41-22-20, Ala. Code
1975, a part of the Alabama Administrative Procedure Act, §
41-22-1 et seq., Ala. Code 1975 ("the AAPA"). Section 41-22-20
provides the procedure for soliciting judicial review of final
decisions of administrative agencies within the State. The
section provides, in pertinent part:
"(a)
A
person
who
has
exhausted
all
administrative remedies available within the agency,
other than rehearing, and who is aggrieved by a
final decision in a contested case is entitled to
judicial review under this chapter. ...
"(b)
All
proceedings
for
review
may
be
instituted by filing of notice of appeal or review
and a cost bond with the agency to cover the
reasonable costs of preparing the transcript of the
proceeding under review, unless waived by the agency
or the court on a showing of substantial hardship.
A petition shall be filed either in the Circuit
Court of Montgomery County or in the circuit court
of the county in which the agency maintains its
headquarters,
or
unless
otherwise
specifically
1070543
8
provided by statute, in the circuit court of the
county where a party other than an intervenor,
resides or if a party, other than an intervenor, is
a corporation, domestic or foreign, having a
registered office or business office in this state,
then in the county of the registered office or
principal place of business within this state.
"....
"(d) The notice of appeal or review shall be
filed within 30 days after the receipt of the notice
of or other service of the final decision of the
agency upon the petitioner .... The petition for
judicial review in the circuit court shall be filed
within 30 days after the filing of the notice of
appeal or review. ... Failure to file such petition
within the time stated shall operate as a waiver of
the right of such person to review under this
chapter .... This section shall apply to judicial
review from the final order or action of all
agencies ....
"....
"h) The petition for review shall name the
agency as respondent and shall contain a concise
statement of:
"(1) The nature of the agency action
which is the subject of the petition;
"(2) The particular agency action
appealed from;
"(3) The facts and law on which
jurisdiction and venue are based;
"(4) The grounds on which relief is
sought; and
"(5) The relief sought."
1070543
9
(Emphasis added.)
On May 30, 2007, Tatum, departing from the procedures
outlined in the AAPA, filed a complaint in the Montgomery
Circuit Court, naming former Secretary of State Worley in her
individual capacity and Secretary of State Chapman in her
official capacity and in her individual capacity. She invoked
the jurisdiction of the trial court, relying on Fields v.
State, 534 So. 2d 615 (Ala. Civ. App. 1993), and arguing that
when a statute provides no right of appeal or statutory
certiorari review, the common-law writ of certiorari is the
only available means of review and original jurisdiction is
proper in the circuit court. In her complaint, Tatum sought a
common-law writ of certiorari to review her allegedly unlawful
dismissal, reinstatement to her position, damages for the
deprivation of her property interest in continued employment,
compensatory and punitive damages for Worley's alleged
intentional infliction of emotional distress, and attorney
fees. In addition, Tatum requested a judgment declaring that
her resignation was involuntary, that Worley had violated her
constitutional
rights
without
due
process,
that
her
resignation was actually a constructive termination, that
1070543
10
Worley
arbitrarily
dismissed
Tatum,
and
that
Tatum's
resignation
was
obtained
by
coercion,
duress,
and
misrepresentation.
In the petition for a writ of mandamus, Chapman claims
that Tatum's claims against her for money damages and attorney
fees are barred by the doctrine of sovereign immunity. Tatum
responds by citing Phillips v. Thomas, 555 So. 2d 81, 83
(1989), for the premise that a "state employee is not
protected by § 14[, Ala. Const. 1901,] when [the employee]
acts 'wilfully, maliciously, illegally, fraudulently, in bad
faith,
beyond
his
authority,
or
under
a
mistaken
interpretation of the law.'" Tatum's brief, at 52.
In response to Tatum's complaint, Worley and Chapman
moved the trial court for a judgment on the pleadings pursuant
to Rule 12(c), Ala. R. Civ. P., arguing 1) that Tatum may not
maintain an independent action after availing herself of the
appellate process of the State Personnel Board; 2) that any
claim against Chapman in her official capacity is barred by
the doctrine of sovereign immunity; 3) that the claims against
Worley and Chapman in their individual capacities are barred
by the doctrine of State-agent immunity; 4) that the claims
1070543
11
are barred by the statute of limitations; and 5) that Tatum's
claim asserting intentional infliction of emotional distress
fails as a matter of law. The trial court issued an order
denying their motion, and Worley and Chapman seek a writ of
mandamus directing the trial court to vacate that order and to
enter a judgment on the pleadings.
Standard of Review
"[M]andamus is a drastic and extraordinary writ to
be issued only where there is (1) a clear legal
right in the petitioner to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) properly invoked
jurisdiction of the court."
Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991).
Mandamus is a proper remedy for a trial court’s refusal
to dismiss a case for failure to comply with the necessary
procedures for appeal set out in the AAPA. See, e.g., Ex parte
Crestwood Hosp. & Nursing Home, Inc., 670 So. 2d 45 (Ala.
1995). Further, "[a] petition for a writ of mandamus 'is an
appropriate means for seeking review of an order denying a
claim of immunity.' Ex parte Butts, 775 So. 2d 173, 176 (Ala.
2000)." Ex parte Haralson, 853 So. 2d 928, 931 (Ala. 2003).
"In reviewing the denial of a motion to dismiss
by means of a mandamus petition, we do not change
1070543
12
our standard of review. ... Under Rule 12(b)(6),
Ala. R. Civ. P., a motion to dismiss is proper when
it is clear that the plaintiff cannot prove any set
of circumstances upon which relief can be granted.
Cook v. Lloyd Noland Found., Inc., 825 So. 2d 83, 89
(Ala. 2001). '"In making this determination, this
Court does not consider whether the plaintiff will
ultimately prevail, but only whether [she] may
possibly prevail."' Id. (quoting Nance v. Matthews,
622 So. 2d 297, 299 (Ala. 1993)). We construe all
doubts regarding the sufficiency of the complaint in
favor of the plaintiff. [Ex parte] Butts, 775 So. 2d
[173] at 177 [(Ala. 2000)]."
Analysis
Alabama provides statutory procedures in the AAPA for
reviewing the actions of administrative agencies. It is a
mainstay of administrative procedure that a party must exhaust
all applicable administrative remedies before seeking relief
in the courts. § 41-22-20(a), Ala. Code 1975. The purpose of
these administrative procedures is "[t]o simplify the process
of judicial review of agency action as well as increase its
ease and availability. In accomplishing its objectives, the
intention of this chapter is to strike a fair balance between
these purposes and the need for efficient, economical and
effective government administration." § 41-22-2(b)(7), Ala.
Code 1975. To allow a plaintiff to raise issues in court that
have been addressed by an administrative agency, without
1070543
13
having exhausted that administrative process, would frustrate
the orderly administration of justice. See Ex parte Gadsden
Country Club, 14 So. 3d 830, 832 (Ala. 2009).
Although a party seeking review of a ruling by an
administrative agency may petition the court for a common-law
writ of certiorari, this means of review is allowable only
when no statutory right of appeal or statutory certiorari
review is available. Collins v. Alabama Dep't of Corr., 982
So. 2d 1078, 1080 (Ala. 2007). Section 41-22-20, Ala. Code
1975, however, explicitly provides both a statutory vehicle
for obtaining judicial review and a definition of the required
process. This statutory process, by its existence, forecloses
review by way of a petition for a common-law writ of
certiorari.
Tatum contends that her claims were not constrained by
the AAPA because, she says, her appeal to the Personnel Board
was not a "contested case" within the meaning of § 41-22-20,
Ala. Code 1975, which states in subsection (a) that "[a]
person ... who is aggrieved by a final decision in a contested
case is entitled to judicial review ...." A "contested case"
is defined in § 41-22-3(3), Ala. Code 1975, as "[a] proceeding
1070543
14
... in which the legal rights, duties or privileges of a party
are required by law to be determined by an agency after an
opportunity for hearing." Tatum argues that, because the
Personnel Board declined jurisdiction and did not adjudicate
her appeal "on the merits," she is not aggrieved by a final
decision in a contested case and, thus, that the AAPA does not
govern her claim.
Tatum
also cites in support of this
contention Rule 41(b), Ala. R. Civ. P., which states that an
involuntary dismissal for lack of jurisdiction is not an
adjudication on the merits. However, Rule 81(b), Ala. R. Civ.
P., states that "[t]hese rules are not applicable to any
proceeding in which the adjudication of the controversy is by
... an administrative agency or official body of any kind,
other than the courts enumerated in Rule 1." Therefore, Rule
41(b), Ala. R. Civ. P., does not apply to the decisions of an
administrative agency, and it does not provide support for
Tatum's position.
As support for her claim that the AAPA applies only to
adjudications on the merits, Tatum cites Jones v. Alabama
State Board of Pharmacy, 624 So. 2d 613, 614 (Ala. Civ. App.
1993). The portion of Jones Tatum cites states:
1070543
15
"Appellate review of administrative actions is
limited to a determination of 'whether the agency
acted within its powers conferred upon it by law and
the constitution, whether its decision is supported
by substantial evidence, and whether the agency’s
decision is reasonable and not arbitrary.'"
It is unclear why Tatum offered this case as support; it
concerns how a court will review an agency decision, not
whether judicial review of an agency decision is available or
required.
Despite Tatum’s contention, the AAPA does not use the
phrase "on the merits." Rather, it states that a party
aggrieved by a "final decision" is entitled to judicial
review. A "final decision" is one that garners the support of
"a majority of the officials who are to render the final
order." § 41-22-15, Ala. Code 1975. The Personnel Board
determined as a matter of fact that Tatum had resigned, and
because Tatum's resignation was not the result of nonmerit
discrimination, as defined by Rule 670-X-4-.03, Ala. Admin.
Code (Alabama State Personnel Board), the Board declined to
follow the administrative law judge's recommendation and
extend its jurisdiction under Rule 670-X-4-.03 in order to
reach Tatum's claims. Because Tatum had resigned, leaving
nothing to adjudicate, the Personnel Board dismissed her
1070543
16
appeal with prejudice. The order was signed by a majority of
the officials empowered to render the order and was,
therefore, a final decision.
Tatum also curiously alleges that "the question whether
Tatum resigned was never at issue before the Personnel Board.
Instead, the gravamen of Tatum’s claim to the Personnel Board
was that her resignation was involuntary." Tatum's brief, at
39. Only by a twist of logic could one assert that the State
Personnel Board never considered whether Tatum resigned, when,
in fact, the Personnel Board determined that it lacked
jurisdiction over Tatum's appeal only after it found that
Tatum had resigned.
This conclusion was reached after a hearing held before
an administrative law judge over the course of three days and
a subsequent hearing before the Board. Despite Tatum’s
assertion that the Board never adjudicated the claim on the
merits, the Board had to consider Tatum’s claim to determine
whether it would extend jurisdiction to reach the claim. The
nature of Tatum’s separation from her employment in the
Secretary of State's Office was a threshold factual question
the Board had to determine.
1070543
17
The AAPA requires that one unhappy with the agency's
determination petition the circuit court for review. The
petition for review in the circuit court must "name the agency
as respondent and shall contain a concise statement of: (1)
The nature of the agency action which is the subject of the
petition; (2) The particular agency action appealed from; (3)
The facts and law on which jurisdiction and venue are based;
(4) The grounds on which relief is sought; and (5) The relief
sought." § 41-22-20(h), Ala. Code 1975. Instead of a petition
naming the State Personnel Board as respondent as required
under (1) above, Tatum filed in the circuit court a complaint
naming Worley and Chapman, individually and in her capacity as
secretary of state, as defendants. Tatum's complaint did not
state that in filing the complaint she was appealing a
decision by the Personnel Board as required by § 41-22-
20(h)(2) above. The relief sought in the circuit court was 12
actions and declarations that began with a prayer for "[a]
Common Law Writ of Certiorari to review Defendants' unlawful
removal of Plaintiff from her position as Supervisor of Voter
Registration." (Emphasis in original.) The complaint did not
mention or invoke the right to judicial review under the AAPA.
1070543
18
Instead, Tatum disregarded the requirements of the AAPA and
proceeded as if there were no statute that provided for
judicial review. Her complaint was not a petition for review
of an agency action; it was, in fact, a new civil action
against Worley and Chapman.
Ex parte Smith, 683 So. 2d 431 (Ala. 1996), cited by
Worley and Chapman, is factually similar to the present case.
In Smith, a professor at a state college appealed his
termination to the administrative-review panel. The panel
found that Smith had been terminated for good cause, and the
panel affirmed Smith's termination. Smith did not appeal the
panel’s decision; instead, he filed an original civil action
against the college, which resulted in a summary judgment in
favor of the college. This Court affirmed the summary
judgment, noting that the decision of the review panel, as
determined by statute, was "final and binding."
"[B]ecause the decision of the review panel is
considered final and binding, the only remedy
available to Smith was to appeal the panel's
decision to the appropriate circuit court. A
reviewing court 'may reverse or modify the decision
[of an administrative review panel] or grant other
appropriate relief' if it finds that 'substantial
rights of the petitioner have been prejudiced
because the agency action is ... [i]n violation of
constitutional or statutory provisions.' § 41-22-
1070543
19
20(k), Ala. Code 1975. Smith did not appeal the
decision of the review panel to the circuit court;
rather, he brought this action in order to recover
damages for wrongful termination. Therefore, he
waived his right to appeal the decision of the
review panel."
683 So. 2d at 435. See also Island Bay Utils. v. Alabama Dep’t
of Envtl. Mgmt., 587 So. 2d 1210 (Ala. 1991)(holding that
plaintiff’s failure to follow the procedure necessary to
institute an appeal from a decision by the Alabama Department
of Environmental Management was fatal to claim); Smith v.
Civil Serv. Bd. of Florence, 52 Ala. App. 44, 289 So. 2d 614
(Civ. App. 1974) (stating that when a special statutory
procedure has been provided as an exclusive method of review
for a particular type of case, no other statutory review is
available); and Hallman v. City of Northport, 386 So. 2d 756
(Ala. Civ. App. 1980) (ruling that when the right to appeal is
purely statutory, an appeal taken without statutory authority
must be dismissed for want of jurisdiction).
Under this authority, Tatum’s failure to follow the
statutory process for taking an appeal acts as a waiver of her
right to a review of the decision of the State Personnel
Board. The process for appealing a termination is defined by
statute, as described supra. That process states that
1070543
20
decisions of the State Personnel Board are final and binding.
Rule 670-X-4-.03, on which Tatum relies, states: "If the Board
finds after hearing that there was discrimination on any of
the above nonmerit factors, it shall order appropriate
corrective action and its decision shall be final." Also,
Rule
670-X-18-.02,
entitled
"Dismissals,"
states
in
subsection
(3): "The decision of the Board based upon its records and the
testimony shall be final." The statutory process directs
parties who are aggrieved by a final decision to appeal that
decision to the circuit court. Failure to follow this
procedure acts as a waiver of the right to appeal the
decision. Although Tatum conveyed jurisdiction to the trial
court by filing her notice of appeal, she waived her right to
review when she subsequently failed to file the required
petition and instead filed a new civil action naming Worley
and Chapman as defendants.
Tatum
clearly
did
not
comply
with
the
statutory
requirements for filing an appeal of the Personnel Board’s
decision. Although Tatum substantially complied with the
requirements of § 41-22-20 by exhausting her administrative
remedies within the agency and by filing a notice of appeal,
she failed to file a petition in the circuit court as required
1070543
21
by § 41-22-20(d), and she failed to strictly comply with the
requirements of § 41-22-20(h), Ala. Code 1975. In Ex parte
Carlisle, 894 So. 2d 721, 728-29 (Ala. Civ. App. 2004), the
Court of Civil Appeals held that strict compliance with
statutory procedure was necessary for a party to obtain review
by the circuit court of the action of the State Department of
Revenue. Here, Tatum failed to follow the statutorily defined
procedure for appealing final decisions of the State Personnel
Board, and in doing so she waived her right to judicial
review. Because we are issuing the writ based on Tatum's
waiver of her right to judicial review, we pretermit
discussion of the other issues raised by the parties.
Tatum's complaint, however, asserted new claims for
damages that were not raised before the Personnel Board.
Worley and Chapman correctly argue that the claims against
them are barred by the doctrine of State immunity.
Section 14, Alabama Constitution of 1901, which states
that "[t]he State of Alabama shall never be made a defendant
in any court of law or equity," bars actions against the State
and, more particularly, bars actions against constitutional
officers, when the claims arise from the performance of the
constitutional officer's duties. Boschell v. Walker County
1070543
22
Sheriff, 598 So. 2d 843, 844 (Ala. 2002). Article V, § 112,
Alabama Constitution of 1901, defines the executive department
as consisting of a "governor, lieutenant governor, attorney-
general, state auditor, secretary of state, state treasurer,
superintendent of education, commissioner of agriculture and
industries, and a sheriff for each county." The persons
occupying the named offices are constitutional officers, and
"this Court has consistently held that a claim for monetary
damages made against a constitutional officer in the officer's
individual capacity is barred by State immunity whenever the
acts that are the basis of the alleged liability were
performed within the course and scope of the officer's
employment." Ex parte Davis, 930 So. 2d 497, 500-01 (Ala.
2005). Chapman was sued in her official capacity as secretary
of state, and Worley was acting in her official capacity as
secretary of state when the incident that forms the basis for
these claims occurred. Ex parte Shelley, [Ms. 1080588,
September 18, 2009] ___ So. 3d ___, ___ (Ala. 2009) ("Suits
against [constitutional] officers for actions taken in the
line and scope of their employment inherently constitute
actions against the State, and such actions are prohibited by
§ 14. See [Ex parte] Haralson, 853 So. 2d [928,] 932 [(Ala.
1070543
23
2003)]."). Thus, Tatum's claims against both Worley and
Chapman in the Montgomery Circuit Court that were not asserted
in Tatum's appeal to the State Personnel Board are barred by
the doctrine of State immunity.
Conclusion
Tatum waived her right to judicial review of the decision
of the Personnel Board because she failed to follow the
statutory procedure for obtaining that judicial review. A
common-law writ of certiorari was unavailable to her because
statutory procedures for such an appeal existed. Further,
Tatum's claims against Worley and Chapman asserted for the
first time in the action in the Montgomery Circuit Court are
barred by the doctrine of State immunity under § 14, Ala.
Const. 1901. Accordingly, the writ of mandamus will issue and
the trial court is directed to vacate its order denying Worley
and Chapman's motion and to enter a judgment on the pleadings
in Worley's and Chapman's favor.
PETITION GRANTED; WRIT ISSUED.
Lyons, Stuart, and Smith, JJ., concur.
Cobb, C.J., and Woodall and Shaw, JJ., concur in the
result.
1070543
24
WOODALL, Justice (concurring in the result).
I concur in the result. All of Tatum's claims are
clearly barred by the immunity afforded Worley and Chapman by
§ 14, Ala. Const. 1901.
Cobb, C.J., concurs. | December 30, 2009 |
a033b51c-90c1-4a93-9ad0-af7722c0d628 | Certain Underwriters of Lloyd's, London, and Certain London Marketing Insurance Companies v. Southern Natural Gas Company | N/A | 1071770, 1080816 | Alabama | Alabama Supreme Court | REL: 12/30/2009
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
____________________
1071770
____________________
Certain Underwriters of Lloyd's, London, and Certain London
Marketing Insurance Companies
v.
Southern Natural Gas Company
____________________
1080816
____________________
Certain Underwriters of Lloyd's, London, and Certain London
Marketing Insurance Companies
v.
Southern Natural Gas Company
Appeals from Jefferson Circuit Court
(CV-01-6388)
PER CURIAM.
Certain Underwriters at Lloyd's, London, and Certain
London Marketing Insurance Companies (collectively "the
1071770, 1080816
As noted in Lloyd's I, "'PCB' is an acronym for
1
polychlorinated biphenyl." 939 So. 2d at 32 n.1.
2
Insurers") appeal from an order of the Jefferson Circuit Court
in favor of the plaintiff, Southern Natural Gas Company
("Sonat"), certified under Rule 54(b), Ala. R. Civ. P., as a
final judgment. We dismiss the appeals.
Facts and Procedural History
This is the second time the underlying action has come
before this Court. See Certain Underwriters at Lloyd's,
London v. Southern Natural Gas Co., 939 So. 2d 21 (Ala. 2006)
("Lloyd's I"). As this Court noted in Lloyd's I:
"Sonat operates approximately 14,000 miles of
pipeline in the southeastern United States for the
purpose of transporting natural gas to markets in a
seven-state area. As Sonat explains in the
complaint it filed to institute the underlying
litigation, its 'integrated pipeline operations'
include, among other operational features, numerous
'compressor stations,' including 11 located in
Alabama, and numerous 'mercury-metering stations,'
including 131 located in Alabama. The Insurers
provide a balanced summary of the circumstances
giving rise to the action in their principal brief
to this Court:
"'From 1957 to 1972, Sonat used a PCB-based
synthetic
lubricant
at
many
of
its
compressor
stations.[ ]
Environmental
1
testing performed by Sonat in 1989 revealed
that 13 of its 38 compressor stations had
PCB contamination. Sonat also allegedly
sustained environmental damage to its
1071770, 1080816
3
property at 14,700 other sites, including
25 additional compressor stations; 650
mercury metering stations; 14,000 liquid
removal points; five manufactured gas
plants; and 20 offshore platforms. Sonat
voluntarily undertook to remediate the
contamination at its sites.
"'In 1991 Sonat put [the Insurers] on
notice that it had discovered contamination
at 13 of its compressor stations and that
it
had
taken
action
to
contain
and
remediate the contamination. In November
1995, counsel for [the Insurers] sent Sonat
a reservation of rights letter with respect
to the claim made by Sonat. In 1996 Sonat
advised [the Insurers] that the cleanup had
been completed and that [the Insurers]
should close their files on the claim.'
"(The Insurers' brief, pp. 6-7.)
"In the action it subsequently filed against the
Insurers, Sonat asserted that the Environmental
Protection Agency, 'other governmental agencies and
departments
and/or
private
parties,'
including
Alabama
residents,
'have
brought
or
asserted
lawsuits, claims, and demands against Sonat alleging
property damage, personal injury, bodily injury, and
other damage[] and causes of action, including,
without limitation, nuisance, trespass, negligence
and strict liability, allegedly as a result of
Sonat's operations and ownership' of the pipeline
system.
Sonat
asserted
that
it
had
'paid
substantial amounts under legal obligation for the
remediation of damage in, at, and around the
vicinity of compressor stations, and for mercury
damage arising from mercury meters.' Sonat went on
to explain that the contamination experienced at the
compressor
stations
involved
principally
the
presence of PCBs and the contamination at the
mercury-metering stations involved principally 'the
1071770, 1080816
4
presence of mercury in the ground water, surface
water, air and general environment in, at, around,
and
in
the
vicinity
of
the
mercury-metering
stations.'
"Sonat stated in its complaint that the Insurers
had issued various policies of liability insurance,
covering successive policy periods commencing on
November 30, 1949, and concluding on December 1,
1987, which entitled Sonat to coverage 'for all
sums, including costs of investigation and defense
and legal liabilities, arising out of environmental
and tort actions ....' In paragraph 32 of the
complaint (captioned 'Environmental and Tort Action
Concerning Reform, Alabama[,] Compressor Station'),
Sonat alleged:
"'Claims, demands and suits have been
asserted against Sonat concerning property
damage and other damages arising out of
Sonat's operation of the Reform, Alabama[,]
compressor station. The claimants in the
environmental actions, allege, inter alia,
damage and other injury based on purported
damage
including
the
presence
of
polychlorinated
biphenyls
and
other
substances of concern in the environment
in, at, around, and in the vicinity of the
Reform,
Alabama[,]
compressor
station.
Claimants seek damages for past and future
response costs for alleged property damage
which
is
continuous
and
progressive,
beginning in or before 1949 and extending
until at least 1986. The monies spent and
to be spent in response to demands of a
governmental agency, or a private party are
"damages" under the Liability Insurance
Policies. Alabama Plating Co. v. United
2
States Fidelity and Guar. Co., 690 So. 2d
331 (Ala. 1996). As such, the Liability
Insurance Policies respond to and are
required to pay for all damage because of
1071770, 1080816
5
property damage, bodily injury or personal
injury (or a combination thereof) which
Sonat is or becomes legally obligated to
pay as respects the Reform, Alabama[,]
compressor station. Sonat has paid, and is
likely to continue to become legally
obligated to pay, damages arising from the
Reform, Alabama[,] compressor station.'
"By means of the next four paragraphs of its
complaint, introduced by identical captions except
for the name of the location of the compressor
station, and making identical averments, Sonat made
precisely
parallel
allegations
concerning
the
compressor stations located at Elmore, Gallion,
McConnells, and Tarrant, Alabama.
"Thereafter, Sonat
undertook
in
its
complaint
to
delineate five separately captioned claims for
relief. The claims respectively asserted that
although the Insurers were obligated to pay in full
Sonat's legal liabilities arising out of or in
connection
with
the
previously
described
'environmental and tort actions,' the Insurers had
'failed, or threatened to fail, to fulfill, or
acknowledge completely their insuring obligations to
pay in full Sonat's legal liabilities'; that there
was an actual and justiciable controversy as to the
Insurers' obligations in that regard (first claim
for relief); that the Insurers had breached their
insuring obligations to Sonat and were obligated to
pay Sonat 'all direct, indirect, consequential,
incidental, special, compensatory and other damages
resulting from' the breaches of contract (second
claim for relief); that the conduct of the Insurers
effected a waiver of their right 'to enforce any
contractual obligation, limitation, exclusion, or
other provisions running in [their] favor' and Sonat
was entitled to a judicial declaration to that
effect (third claim for relief); that the Insurers
had breached their contracts of insurance by
'disclosing confidences of Sonat and confidential
1071770, 1080816
6
settlement communications of Sonat in violation of
their contractual duties to act with good faith and
with reasonable care and prudence with regard to
their
insured,'
thereby waiving the Insurers'
'ability to enforce any contractual obligation,
limitation, exclusion, or other provision running in
[their] favor,' entitling Sonat to a judicial
declaration to that effect (fourth claim for
relief); and that the conduct of the Insurers
represented an anticipatory breach of contract
entitling Sonat to recover damages (fifth claim for
relief). In its concluding 'prayer for relief,'
Sonat demanded judgment by way of a judicial
declaration that the Insurers were 'obligated to pay
or reimburse in full Sonat's cost and expenses for
investigation and defense of the environmental and
tort actions and to pay or reimburse in full Sonat's
legal
liabilities
in
connection
with
said
environmental and tort actions' and to pay an award
for 'compensatory damages in an amount or amounts to
be determined by the trier of fact at trial, and
attorneys' fees and costs.'
"Eventually,
the
trial
court
entered
two
case-management
orders
pertinent
to
the
jurisdictional issue before this Court. The first
order provided:
"'Considering the number of sites at issue
in this litigation and the complexity of
the issues involved, it is necessary that
the trial of this matter be conducted in
phases, as follows:
"'Trial Phase I: Trial Phase I
shall involve the parties' claims
and defenses relative to the
availability
of
insurance
coverage for a subset of those
sites
listed
in
Exhibit
"A"
("Phase I Sites"), as agreed to
by the parties or ordered by the
1071770, 1080816
7
Court in the future.'
"Exhibit
A
listed
dozens
of
'compressor
stations/PCBs' in Alabama, Georgia, Louisiana, and
Mississippi, several hundred 'meter and compressor
stations/mercury'
located
in
Florida,
South
Carolina, Alabama, Georgia, Louisiana, Texas, and
Tennessee, and several dozen 'offshore facilities.'
The second case-management order explained that
'[t]he initial trial [phase] in this action shall
focus on the claims and defenses related to the
Tarrant, Alabama, and Reform, Alabama, locations,'
those
being
two
of
the
Alabama
'compressor
stations/PCBs' identified on Exhibit A to the first
case-management order.
"At the conclusion of the trial relating to
those two sites, the jury responded to a set of 14
special interrogatories, identifying 9 separate
policies as having been in existence and finding 1)
that an 'occurrence' had occurred under both
definitions of that term in the two applicable
insurance policies; 2) that notice to the Insurers
of any occurrence was not late with respect to
either the Tarrant or the Reform compressor station;
3) that Sonat had not waived its claim; 4) that 'a
single occurrence caused the property damage[] at
Tarrant compressor station and Reform compressor
station'; 5) that at both locations there was damage
to property owned by third parties other than Sonat;
6) that the property damage at both stations began
in 1957 and ended in 1988; 7) that the amounts paid
by Sonat with respect to both compressor stations
were paid because Sonat 'was legally obligated to
pay them as damages'; 8) that soil contamination at
the two sites was not 'expected or intended' by
Sonat; 9) that the Insurers had breached the
contracts, doing so on November 13, 1995; and 10)
specifying the total amounts Sonat was entitled to
recover 'as a result of PCB contamination' at each
site. Lastly, the jury declared that three specific
policies were 'excess of $50,000 in underlying
1071770, 1080816
8
insurance.'
"The PCB contamination
at
the
various
compressor
stations resulted from Sonat's use throughout its
system
of
the
synthetic
lubricant
'Pydraul,'
composed partly of PCBs. In moving the trial court
for the entry of a judgment in response to the
jury's answers to the special interrogatories, Sonat
asserted that its 'damages were, in fact, caused by
the systematic use of Pydraul, causing damage[] at
the compressor stations, which constitutes a single
occurrence.' The Insurers opposed the entry of a
final judgment, arguing that the only authority for
such a judgment would be Rule 54(b), Ala. R. Civ.
P., but contending that the court could not certify
its order under that rule because none of Sonat's
claims had been completely resolved. The first
sentence of Rule 54(b) provides:
"'When more than one claim for relief is
presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party
claim,
or
when
multiple
parties
are
involved, the court may direct the entry of
a final judgment as to one or more but
fewer than all of the claims or parties
only upon an express determination that
there is no just reason for delay and upon
an express direction for the entry of
judgment.'
"(Emphasis supplied.)
"Rule 42(b), Ala. R. Civ. P., provides:
"'The court, in furtherance of convenience
or to avoid prejudice, or when separate
trials will be conducive to expedition and
economy, may order a separate trial of any
claim,
cross-claim,
counterclaim,
or
third-party claim, or of any separate issue
or of any number of claims, cross-claims,
1071770, 1080816
9
counterclaims,
third-party
claims,
or
issues, always preserving inviolate the
right of trial by jury as declared by
Article 1, Section 11 of the Alabama
Constitution of 1901.'
"(Emphasis supplied.)
"The Insurers argued to the trial court that
instead of certifying its order under Rule 54(b),
the court should certify appropriate issues for an
interlocutory appeal pursuant to Rule 5, Ala. R.
App. P. The Insurers committed that they could
stipulate with Sonat the issues the court could
certify for an interlocutory appeal taken pursuant
to Rule 5. On June 17, 2005, the trial court
entered its 'judgment' in favor of Sonat against the
Insurers for monetary damages and stating, with
respect to the issue of Rule 54(b) certification,
the following:
"'Defendants contend that a partial
final judgment is not appropriate. ...
"'....
"'In this case the parties agreed to
try the issues on the sites at Tarrant and
Reform. All the issues on these sites were
tried. Therefore, it appears that a final
judgment on these claims is appropriate.
"'....
"'The judgment is certified as final
pursuant to Rule 54(b), there being no
cause for delay and entry of judgment
should be final.'
"_______________
" The 'Liability Insurance Policies' referred to
2
in the complaint are those 'Known Primary, Umbrella
1071770, 1080816
Rule 21, Ala. R. Civ. P., states, in part: "Any claim
2
against a party may be severed and proceeded with separately."
10
and Excess General Liability Insurance Policies
Issued to [Sonat,] by Certain Underwriters at
Lloyd's' listed in Appendix 1 to Sonat's complaint.
..."
939 So. 2d at 23-27.
Although the Insurers appealed that order of the trial
court, they also
"moved this Court for an expedited determination of
appellate jurisdiction, contending that the order
[did] not constitute a final judgment that can
support an appeal. In particular, the Insurers
assert[ed] that the order did not completely dispose
of
any
single
'claim
for
relief'
and
that,
consequently,
the
trial
court's
attempted
certification of the 'judgment' as final pursuant to
Rule 54(b), Ala. R. Civ. P., was unavailing and
should be vacated by this Court and the appeal
dismissed."
939 So. 2d at 23.
In Lloyd's I, we first noted that the Phase I trials
ordered by the trial court were, under Rule 42(b), Ala. R.
Civ. P., separate trials of the issues relating to the Reform
and Tarrant compressor stations and were not separate trials
of independent claims for relief under Rule 21, Ala. R. Civ.
P. 939 So. 2d at 27. Next, we quoted from several
2
authorities discussing the requirements for an order to be
1071770, 1080816
11
properly certified as final under Rule 54(b), Ala. R. Civ. P.
Ultimately, we concluded that the Rule 54(b) certification was
ineffective. We stated:
"As pleaded and presented by Sonat, and as
consistently
argued
by
it
throughout
this
litigation, there exists a single claim, expressly
predicated on an allegedly 'single occurrence,'
followed by a single denial of coverage by the
Insurers,
thereby
entitling
Sonat
to
obtain
declaratory relief and to recover damages for breach
of contract. With respect to the PCB contamination
at
its
'integrated
operations
at
compressor
stations,' Sonat has expressly asserted that there
was one continuous exposure over the course of the
policy periods to the same PCBs emanating from the
same synthetic lubricant. Sonat has emphasized
throughout this litigation that it undertook a
single project to investigate and remediate the
damage it discovered throughout its integrated
system of compressor stations. In short, Sonat has
asserted
the
unitary
nature
of
its
pipeline
operation, including the unitary nature of the type
and location of contamination at all of the
compressor stations and has expressly asserted in
the trial court that its remedial activities at its
compressor stations were likewise unitary.
"Sonat's action seeks to recover globally for a
single
occurrence.
At
the
very
least,
and
independent of the interrelationships among the
course of events and resulting damage at various
other locations along its pipeline system, Sonat's
claims for relief seek to '"vindicate one legal
right and allege[] several elements of damage"' with
respect to claims for declaratory relief and damages
relating to the PCB contamination at the Reform,
Elmore, Gallion, McConnells, and Tarrant, Alabama,
compressor stations. Precision American Corp.[v.
Leasing Serv. Corp.], 505 So. 2d [380] at 381 [(Ala.
1071770, 1080816
The Phase II trial addressed the compressor stations at
3
DeArmanville,
Ellerslie,
Elmore,
Enterprise,
Gallion,
12
1987)] (quoting 10 C. Wright, A. Miller & M. Kane,
Federal Practice and Procedure: Civil 2d, § 2657, at
69-71 (1983)).
"....
"Although disposing of the parties' claims and
defenses relative to the 'availability of insurance
coverage' for the Reform and Tarrant sites, the
order entered by the trial court following the Phase
I trial necessarily 'leaves open the question of
additional damages' with respect to the other three
compressor stations. Accordingly, we need not
decide whether there is simply one claim for relief
asserted
in
Sonat's
complaint,
or
whether
recognition for some separate claims could be
justified, as for example, with respect to mercury
contamination
at
mercury-metering
stations
as
opposed to PCB contamination at compressor stations.
All that is necessary to resolve the jurisdictional
issue at this stage is that we are clear to the fact
that,
at
a
minimum,
the
identically
phrased
assertions relating to the events, and resulting
damage, at the five compressor stations represents
a single claim for relief and that the trial court
has not completely disposed of that claim for
relief."
939 So. 2d at 30.
After this Court dismissed the appeal in Lloyd's I, the
parties proceeded to the Phase II trial, which addressed 11
additional compressor-station sites. The Phase II jury found
in favor of Sonat with respect to 6 of the 11 sites and
awarded damages to Sonat. Sonat then moved the trial court
3
1071770, 1080816
Louisville,
McConnells,
Ocmulgee,
Onward,
Rankin,
and
Thomaston. The jury found in favor of Sonat as to the sites
at Ellerslie, Elmore, Gallion, Louisville, Ocmulgee, and
Onward.
This order is stamped as "filed in open court on April
4
8, 2008." However, the order was not entered in the State
Judicial Information System until April 24, 2008. See Rule
58(c), Ala. R. Civ. P. ("An order or a judgment shall be
deemed 'entered' within the meaning of these Rules and the
Rules of Appellate Procedure as of the actual date of the
input of the order or judgment into the State Judicial
Information System.").
See supra note 1.
5
13
for entry of a judgment on the jury's verdict and a
certification of the judgment as final under Rule 54(b), Ala.
R. Civ. P. The Insurers opposed the motion.
In an order entered on April 24, 2008, the trial court
granted Sonat's motion. In relevant part, the trial court's
4
order states:
"(A) Breach of Contract
"Both the Phase I and the Phase II jury
determined that [the Insurers] had breached their
contract with [Sonat].
"(B) Policy Interpretation Issues
"Pursuant to this Court's prior rulings, and the
Phases I and II jury verdicts, the Court finds that:
"1. The PCB
Remediation Program constituted
[5]
an 'occurrence' as defined in the policies;
1071770, 1080816
14
"2. The attachment points of the policies are
$50,000;
"3. [Sonat] was legally obligated to pay for
the remediation program, and [the costs for
that program] therefore constitute damages
under the policies;
"4. The PCB remediation program consisted of a
single occurrence under the policies at issue.
"(C) Factual Determinations Made by the Finders
of Fact
"1. The policies at issue exist;
"2. [Sonat] did not waive its claim against
[the Insurers] for damages associated with the
PCB remediation program;
"3. [Sonat] provided timely notice to [the
Insurers] of its claim;
"4. [The Insurers] breached their contracts
with [Sonat] on November 13, 1995; and
"5. The covered damages commenced in 1957 and
continued until 1988.
"....
"(E) Prevailing Party
"[Sonat] was determined to be the prevailing
party for Phase I on the issues presented to the
jury. [Sonat] similarly prevailed on the issues
presented to the Phase II jury.
"Therefore, it is ordered as follows:
"1. The [Insurers'] policies exist;
1071770, 1080816
15
"2. The attachment points of policies CU1887,
K11477, and CU10353 are $50,0000;
"3. [Sonat] did not waive its claim;
"4.
The
PCB
Remediation
Program
was
an
'occurrence' under the policies;
"5.
The
PCB
remediation
expenses
are
recoverable as damages under the policies;
"6. [Sonat] provided timely notice;
"7. The PCB Remediation Program was a single
occurrence;
"8. [The Insurers] breached their contracts
with [Sonat] on November 13, 1995;
"9. Judgment is entered in favor of [Sonat]
and against [the Insurers] in the amount of
$2,377,962.45,
which
constitutes
the
full
amount for the Phase I and the Phase II sites;
and
"10. [Sonat] is the prevailing party, as it
prevailed on its cause of action for breach of
contract against [the Insurers].
"11. In combination, the verdicts of the Phase
I and the Phase II juries constitute a full and
complete adjudication of one of [Sonat's]
claims for relief, i.e., [Sonat's] claim for
declaratory relief and breach of contract
relating to the entire PCB remediation project
at
all
of
[Sonat's]
compressor
stations.
Therefore, the judgment is certified as final
pursuant to Rule 54(b), there being no cause
for delay, as the PCB Remediation Program
constitutes a single claim for relief, which
has been completely disposed of, and entry of
judgment should be final."
1071770, 1080816
16
The Insurers filed a timely postjudgment motion under
Rule 50, Ala. R. Civ. P., or, in the alternative, under Rule
59, Ala. R. Civ. P. The trial court denied that motion on
August 14, 2008, and the Insurers timely appealed on September
23, 2008 (appeal no. 1071770).
In their appeal to this Court, the Insurers moved on
October
10,
2008,
for
an
expedited
jurisdictional
determination regarding the propriety of the trial court's
certification of the April 24, 2008, order as a final judgment
under Rule 54(b), Ala. R. Civ. P. Both the Insurers and Sonat
submitted briefs and supporting materials regarding the
Insurers' motion.
On February 20, 2009, this Court entered the following
order, which was directed to the trial court:
"In consideration of the [Insurers'] motion for
expedited jurisdictional determination, it appears
that the trial court's order [entered on April 24],
2008, is not properly certifiable as a final
judgment
without
an
apportionment,
among
the
underwriters, of the damages awarded.
"IT IS, THEREFORE, ORDERED that this cause is
remanded for your consideration of apportioning
damages among the defendant underwriters.
"If you elect to enter a final judgment
including
an
apportionment
of
damages,
a
supplemental record reflecting such action should be
1071770, 1080816
17
prepared
and
forwarded
to
this
Court
within
twenty-one (21) days from the date of this order.
The judgment will be considered to be final as of
the date the new order is entered."
On March 12, 2009, the trial court entered an order
apportioning the total award among 28 subscribers to the
policies at issue. On March 25, 2009, the Insurers filed a
notice
of
appeal
as
to
the
trial
court's
order
of
apportionment of the damages award. This appeal was docketed
as case no. 1080816. By order of this Court, case no. 1080816
was consolidated with case no. 1071770 on April 7, 2009.
Meanwhile, the parties were preparing in the trial court
for the Phase III trial of issues related to Sonat's
remediation
efforts
at
its
mercury-metering
stations.
Although on December 17, 2008, the trial court had stayed the
Phase III trial pending the outcome of appeal no. 1071770, the
trial court, in orders entered on June 10 and June 12, 2009,
denied the Insurers' motions to stay discovery as to the
issues involved in the Phase III trial.
On June 24, 2009, the Insurers filed a motion in these
consolidated appeals, asking this Court to stay discovery in
1071770, 1080816
The Insurers argued that discovery should be stayed
6
"because this Court's decision [in the appeals from the Phase
II trial] may greatly alter the landscape in which Phase III
will be tried ... [and] also inevitably affect the discovery
that must be accomplished in preparation for the Phase III
trial." The Insurers argued that allowing discovery to
proceed created a substantial risk that nearly all the
discovery would need to be revisited after this Court decides
the issues raised in the appeals from the Phase II trials.
Sonat filed an opposition to the Insurers' motion. Sonat
argued that the Phase I and Phase II trials resolved the
entirety of Sonat's polychlorinated-biphenyl-remediation-
project "occurrence" under the subject insurance policies.
Sonat asserted that "nothing this Court decides on the current
appeal [of the Phase II trial] would eliminate [Sonat's] claim
for mercury remediation damages." Sonat argued that the
issues in the Phase III trial would require independent,
fact-specific inquiries. Additionally, Sonat asserted that
although it had objected to a stay of the Phase III trial,
Sonat and the Insurers had compromised and had "agreed to a
scheduling order that would not stay discovery, but would stay
the actual trial, should the appellate decision not be issued
by November 2, 2009." Sonat asserted that the Insurers were
"trying, for a third time, to obstruct resolution of [Sonat's]
claims by requesting a stay of discovery--discovery it had
agreed should go forward six months ago. ... [Sonat] is
entitled to resolution of all its coverage claims under the
[insurance] policies without further obstruction by [the
Insurers."
18
the trial court as to the Phase III trial. In an order dated
6
July 27, 2009, this Court denied that motion.
Discussion
As noted above, this Court in its initial consideration
of the Insurers' motion for an expedited jurisdictional
1071770, 1080816
19
determination remanded the case for the trial court to
apportion damages among the various subscribers to the
policies at issue in the Phase II trial; on remand the trial
court
entered an order apportioning
the
damages.
Nonetheless,
in addition to raising several issues in their briefs to this
Court as to the merits, the Insurers reiterate their
contention that the "judgment" rendered after the Phase II
trial should not have been certified as a final judgment under
Rule 54(b), Ala. R. Civ. P. We agree with the Insurers and
therefore dismiss the appeals.
Rule 54(b), Ala. R. Civ. P., states, in relevant part:
"When more than one claim for relief is presented in
an action, whether as a claim, counterclaim,
cross-claim, or third-party claim, or when multiple
parties are involved, the court may direct the entry
of a final judgment as to one or more but fewer than
all of the claims or parties only upon an express
determination that there is no just reason for delay
and upon an express direction for the entry of
judgment."
In reviewing a judgment entered under Rule 54(b), this
Court reviews de novo "[w]hether the action involves separate
claims and whether there is a final decision as to at least
one of the claims." Scrushy v. Tucker, 955 So. 2d 988, 996
1071770, 1080816
In reviewing the trial court's conclusion as to
7
"[w]hether there was 'no just reason delay,'" we must
determine whether the trial court exceeded its discretion.
Scrushy, 955 So. 2d at 996.
20
(Ala. 2006). In Scrushy, this Court included the following
7
discussion regarding the determination of whether a judgment
under Rule 54(b) involves a separate and distinct claim for
relief that has been fully adjudicated:
"In Precision American Corp. v. Leasing Service
Corp., 505 So. 2d 380, 381 (Ala. 1987), this Court
recognized the difficulty of the question before us.
"'The question before this Court is
whether the partial summary judgment LSC
received completely disposed of a claim so
as to make that judgment final. Rule 54(b)
does not authorize the entry of final
judgment on part of a single claim. Tolson
v. United States, 732 F.2d 998, 999 (D.C.
Cir. 1984). Neither federal nor state
courts have been able to settle on a single
test to determine when claims are separate
or exactly what constitutes a claim. See,
Tolson, 732 F.2d at 1001; Cates v. Bush,
293 Ala. 535, 307 So. 2d 6 (1975).
However, authorities have stated that "when
plaintiff is suing to vindicate one legal
right and alleges several elements of
damage, only one claim is presented and
subdivision (b) [of rule 54] does not
apply." 10 C. Wright, A. Miller, and M.
Kane, Federal Practice and Procedure:
Civil 2d, § 2657, at 69-71 (1983); Landry
v. G.B.A., 762 F.2d 462, 464 (5th Cir.
1985).'
"Federal authorities have also recognized that the
1071770, 1080816
21
'separate claim' question is not easily resolved.
For example, the Fifth Circuit stated in Samaad [v.
City of Dallas, 940 F.2d 925, 930 (5th Cir. 1991)]:
"'Even if we are able to differentiate
nicely between the legal and discretionary
aspects of rule 54(b) judgments, a great
deal of uncertainty nonetheless remains,
for we must consider the unsettled question
of what exactly is a 'claim for relief.'
The most that can be said confidently about
this question is that various courts focus
upon different things but are reluctant to
articulate hard-and-fast tests.
"'Some courts concentrate on the facts
underlying the putatively separate claims.
For instance, in Jack Walters & Sons [v.
Morton Bldg.], 737 F.2d [698] at 702 [(7th
Cir. 1984)], the court sought to define
"claim for relief" in light of what it
deemed to be rule 54(b)'s purpose: "to
spare the court of appeals from having to
keep relearning the facts of a case on
successive appeals." Accordingly, it held
that "if the facts underlying different
claims are different, the claims are
separate for Rule 54(b) purposes." Id.
"'Similarly, in Purdy Mobile Homes [v.
Champion Home Builders Co.], 594 F.2d
[1313] at 1316 [(9th Cir. 1979)], the court
rejected an argument that there was only
one claim because some facts were common to
all the theories of recovery. The fact
that one claim required proof of facts
different from those required to prove
another claim rendered it "separate." Id.
See also Gas-A-Car[, Inc. v. American
Petrofina, Inc.], 484 F.2d [1102] at 1105
[(10th Cir. 1973)]; 6 [James W.] Moore et
al., [Moore's Federal Practice], ¶ 54.33[2]
1071770, 1080816
22
at 54-194 [(2d ed. 1991)].
"'Other courts have rejected this
fact-bound test and have focused upon the
possibility of separate recoveries under
arguably separate claims. They have
developed what one commentator has labeled
a "legal rights test," under which common
underlying facts do not preclude the
existence of similar claims. 6 Moore et
al., supra, ¶ 54.33[2] at 54-196 n. 31
(discussing Tolson [v. United States, 732
F.2d 998 (D.C. Cir. 1984)]).
"'Nonetheless,
certain
points
of
agreement emerge from the cases. For
instance, "[i]t is clear that a claimant
who presents a number of alternative legal
theories, but whose recovery is limited to
only one of them, has only a single claim
of relief for purposes of Rule 54(b)."
Page [v. Preisser], 585 F.2d [336] at 339
[(8th Cir. 1978)] (citing Edney v. Fidelity
& Guar. Life Ins. Co., 348 F.2d 136, 138
(8th
Cir.
1965)).
Although
courts
generally agree on these points, they do
not fully reveal the contours of the phrase
"claim for relief." And we are reluctant,
at least in this case, to rush in where
other courts fear to tread. Like them,
rather than attempting to formulate a
generally applicable definition, we take
note of the foregoing "rules of thumb" and
decide the case at hand.'
"940 F.2d at 930-32 (footnotes omitted). The
Seventh
Circuit
employed similar reasoning in
Stearns [v. Consolidated Management, Inc., 747 F.2d
1125 (7th Cir. 1984)]:
"'Unfortunately, there is no clear test to
determine when claims are separate for
1071770, 1080816
23
purposes
of
the
rule.
Local
P-171
[Amalgamated Meat Cutters v. Thompson Farms
Co.], 642 F.2d [1065] at 1070 [(7th Cir.
1981)]. Nonetheless, we have recognized
certain rules of thumb to identify those
types
of
claims
that
can
never
be
considered separate, and have examined the
remainder on a case-by-case basis. The
first rule is that "claims cannot be
separate
unless
separate
recovery
is
possible
on
each....
Hence,
mere
variations
of
legal
theory
do
not
constitute separate claims." 642 F.2d at
1071. The second is that "claims so
closely related that they would fall afoul
of the rule against splitting claims if
brought separately" may not be considered
as separate. Id.'
"747 F.2d at 1108-09.
"The United States Court of Appeals for the
Second Circuit enunciated the following test in
Rieser v. Baltimore & Ohio R.R., 224 F.2d 198, 199
(2d Cir. 1955), that the commentators in Federal
Practice & Procedure find workable: 'The ultimate
determination of multiplicity of claims must rest in
every case on whether the underlying factual bases
for recovery state a number of different claims
which could have been separately enforced.' The
commentators then state:
"'A single claimant presents multiple
claims
for
relief
under
the
Second
Circuit's formulation when the possible
recoveries are more than one in number and
not mutually exclusive or, stated another
way, when the facts give rise to more than
one legal right or cause of action. ...
However, when a claimant presents a number
of legal theories, but will be permitted to
recover only on one of them, the bases for
1071770, 1080816
24
recovery are mutually exclusive, or simply
presented in the alternative, and plaintiff
has only a single claim for relief for
purposes of Rule 54(b). Similarly, when
plaintiff is suing to vindicate one legal
right and alleges several elements of
damage, only one claim is presented and
subdivision (b) does not apply.'
"10 Charles Alan Wright et al., Federal Practice &
Procedure § 2657 (3d ed. 1998) (footnotes omitted).
"In his complaint, Tucker alleges the following
claims against Scrushy: breach of fiduciary duty by
insider trading; breach of fiduciary duty by false
accounting and omissions in public disclosures;
interested transactions and waste of corporate
assets; misappropriation of corporate assets; unjust
enrichment; breach of contract; civil conspiracy;
willful violation of the law; intentional, reckless,
and innocent misrepresentation and suppression;
breach of duty of loyalty and good faith; and fraud,
misrepresentation, and the breach of the fiduciary
duties of loyalty, care, and disclosure. We
conclude that the various claims in the complaint
are not all variations on a single theme. Scrushy's
alleged breach of duty in accepting bonuses that
HealthSouth was not legally obligated to pay is a
sufficiently separate breach that is not alleged
elsewhere in the complaint. Therefore, the unjust-
enrichment claim is a separate claim that will
support a Rule 54(b) certification.
"No substantial issue appears to be presented
with reference to the extent to which the financial
statements were incorrect. Scrushy does not argue
that any of the revised yearly income gain or loss
totals are incorrect. As we have previously stated,
for purposes of the partial summary judgment
appealed here, the trial court assumed 'that
Defendant Scrushy had no actual knowledge of, played
no part in and had no active participation in any of
1071770, 1080816
25
the criminal activities that resulted in the
falsification and fabrication of the originally
filed financial documents that are at issue.' The
facts presented in support of the unjust-enrichment
claim appear at this juncture in the proceedings to
be straightforward .... The facts underlying the
unjust-enrichment claim are sufficiently discrete
that the claim can be reviewed separately and apart
from the other claims in the complaint. The narrow
issues surrounding the bonuses paid to Scrushy are
not likely to be presented to us again in the event
the remainder of this case is appealed to this
Court. See 10 Charles Alan Wright et al., Federal
Practice & Procedure § 2659: 'It is uneconomical
for an appellate court to review facts on an appeal
following a Rule 54(b) certification that it is
likely to be required to consider again when another
appeal is brought after the district court renders
its decision on the remaining claims or as to the
remaining parties.'"
Scrushy, 955 So. 2d at 996-99 (emphasis added).
As noted above, in Lloyd's I it was not necessary to
"decide whether there is simply one claim for relief asserted
in Sonat's complaint, or whether recognition for some separate
claims could be justified, as for example, with respect to
mercury contamination at mercury-metering stations as opposed
to PCB [polychlorinated-biphenyl] contamination at compressor
stations," 939 So. 2d at 30, because in Lloyd's I it was clear
that, even if there were separate claims for relief, the trial
court had not yet disposed of Sonat's claim for relief as it
pertained to all the compressor stations alleged to have
1071770, 1080816
26
suffered
polychlorinated-biphenyl
("PCB") contamination.
Lloyd's I, 939 So. 2d at 30. However, Sonat contends that the
Phase II trial addressed all the issues surrounding the
alleged PCB contamination and remediation at the remaining
compressor stations not addressed in the Phase I trial, and,
Sonat asserts, the Insurers will face no more liability for
damages related to the "PCB remediation project." Sonat
argues, therefore, that all issues related to the "PCB
remediation project" present a separate "claim for relief"
that is appropriate for Rule 54(b) consideration and distinct
from issues relating to Sonat's remediation of environmental
damages at mercury-metering stations.
More specifically, Sonat contends that its so-called "PCB
remediation project" constitutes a single "occurrence" under
the terms of the various policies at issue and that all
damages related to that
"project" therefore
present
a separate
"claim" of breach of contract and a separate "claim for
relief" for purposes of certification under Rule 54(b). Sonat
argues that "[t]he only additional liability [the Insurers]
face[] in this action is based upon a wholly separate single
occurrence[,] the remediation of mercury contamination along
1071770, 1080816
27
[Sonat's] pipeline, which is a separate breach of contract,
with separate damages." (Sonat's brief, p. 53.)
Certainly there is a practical distinction between
Sonat's efforts to clean up the PCB damage at its sites and
Sonat's efforts to clean up the mercury damage at other sites;
proving causation and damages at the various sites would turn
on the specific facts at each site and might, for example,
require testimony from different experts. However, we need
not decide in these appeals whether, under the specific facts
here, the so-called "PCB-remediation project" and the
"mercury-remediation
project"
are
separate
"occurrences"
under
the policies, nor need we decide whether, if those projects
are separate "occurrences," they also are separate breach-of-
contract "claims." Assuming the PCB- and mercury-remediation
projects could be said to be separate occurrences and/or
claims,
the
Rule
54(b)
certification
nevertheless
was
improper
under the circumstances of this case.
In the present case, it is not clear that Sonat has
alleged or proved
that
the
Insurers
committed separate actions
that in turn separately breached its policies of insurance
with Sonat as to the so-called PCB-remediation project and the
1071770, 1080816
Indeed, in response to special interrogatories submitted
8
in the Phase I and Phase II trials, the juries in those trials
identified a common date--November 13, 1995--as the date that
the Insurers allegedly breached the policies at issue.
According to evidence Sonat submitted, the Insurers on
November 13, 1995, sent a "reservation-of-rights" letter to
Sonat.
T he Insurers state in their principal brief to this
9
Court:
"Sonat's complaint did not assert a separate claim
for breach of contract regarding the compressor
station sites, nor did it attempt to distinguish the
damages relating to the 13 compressor stations from
the damages at the other categories of sites."
(The Insurers' brief, p. 67.) Similarly, in their reply
brief, the Insurers state:
"Sonat fails to explain how, under Rule 54(b),
the judgment fully adjudicated even one of Sonat's
claims. Sonat ignores the fact that the only claim
asserted in its pleadings is that [the Insurers]
breached their obligations to indemnify Sonat for
the costs of its remediation at 14,731 sites.
Because Sonat's complaint did not assert a separate
claim for the Phase I and Phase II compressor
station sites, Sonat was forced to be creative in
its argument that a claim has somehow been resolved
here.
28
mercury-remediation project. That is, it appears that Sonat
8
is seeking to recover multiple damages to their numerous (14,
731) sites based on an act or acts by the Insurers that Sonat
alleges constitute a single denial of coverage for all Sonat's
claims for environmental-remediation costs. See Lloyd's I,
9
1071770, 1080816
"Sonat now argues that the judgment 'fully and
fairly resolved all issues, and provided complete
relief, with respect to the PCB Remediation Project
occurrence.' What, respectfully, is a 'PCB
Remediation Project occurrence'? It is not a claim
in the complaint. The fact that Sonat may have
investigated and remediated the damage at its
compressor station sites as part of a single project
... has nothing to do with an 'occurrence' or a
claim under Rule 54(b).
"The most that can be taken from Sonat's
confusing Rule 54(b) argument is that Sonat now
believes that the trial court's determination that
the damage at the compressor stations amounted to a
single occurrence somehow converts such finding into
a claim for relief."
(The Insurers' reply brief, pp. 31-32.)
29
939 So. 2d at 30 ("As pleaded and presented by Sonat, and as
consistently argued by it throughout this litigation, there
exists a single claim, expressly predicated on an allegedly
'single occurrence,' followed by a single denial of coverage
by the Insurers, thereby entitling Sonat to obtain declaratory
relief and to recover damages for breach of contract."
(emphasis added)).
It appears very likely that, in the event there is an
appeal from a later phase in the underlying action, this Court
will be faced with again reviewing facts that are presently
before us--e.g., the Insurers' action or actions that
1071770, 1080816
30
allegedly breached the insurance policies as to "the PCB-
remediation project"--to determine if those same facts
involve, as to Sonat's mercury-remediation efforts, a breach
of the same policies of insurance at issue here. Additional
factual determinations likely to come before us again in a
future appeal include issues surrounding Sonat's notice of its
claim under the policies and whether Sonat waived its claims
against the Insurers for damages associated with its
environmental-remediation efforts. Thus, these appeals stand
in contrast to the factual scenario in Scrushy, 955 So. 2d at
999, in which it appeared that "[t]he narrow issues
surrounding the bonuses paid to Scrushy are not likely to be
presented to us again in the event the remainder of this case
is appealed to this Court." Under the unique circumstances
here, we think that consideration of an appeal from the
underlying action is not appropriate at this time. See
Scrushy, 955 So. 2d at 999 ("'It is uneconomical for an
appellate court to review facts on an appeal following a Rule
54(b) certification that it is likely to be required to
consider again when another appeal is brought after the
district court renders its decision on the remaining claims or
1071770, 1080816
In dismissing the appeals on a procedural basis, we are
10
cognizant of the substantial effort put forth by the parties
and of the significant costs involved in prosecuting and
defending these appeals. In the event a proper appeal is
taken from a future final judgment in the underlying action,
one or more parties to such an appeal may move this Court to
incorporate the record from these appeals. See, e.g., FabArc
Steel Supply, Inc. v. Composite Constr. Sys., Inc., 914 So. 2d
344, 349 (Ala. 2005) (noting that this Court had, on motion of
a party, incorporated the record from a prior appeal).
31
as to the remaining parties.'" (quoting 10 Charles Alan Wright
et al., Federal Practice & Procedure § 2659)). Accordingly,
we hold that the trial court erred in certifying the judgment
entered after the Phase II trial as final under Rule 54(b),
Ala. R. Civ. P., and the appeals are therefore due to be
dismissed.
10
Conclusion
The appeals are dismissed.
1071770--APPEAL DISMISSED.
1080816--APPEAL DISMISSED.
Cobb, C.J., and Lyons, Woodall, Stuart, Smith, Bolin,
Parker, Murdock, and Shaw, JJ., concur. | December 30, 2009 |
a0609d3b-0e76-4782-900e-ba7b50ccd978 | Ex parte Jacksonville State University, William Meehan and Frank Romano. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: R. David Whetstone v. William A. Meehan et al.) | N/A | 1081413 | Alabama | Alabama Supreme Court | REL: 12/04/09
N o t i c e :
T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e
advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e
r e q u e s t e d t o n o t i f y t h e
Reporter of
Decisions,
Alabama
A p p e l l a t e
C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741
((334)
2 2 9 - 0 6 4 9 ) , o f
any t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may be made
b e f o r e t h e
o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1081413
Ex p a r t e J a c k s o n v i l l e S t a t e U n i v e r s i t y , W i l l i a m Meehan, and
Frank Romano
PETITION FOR WRIT OF MANDAMUS
( I n r e : R. David Whetstone
v.
W i l l i a m A . Meehan e t a l . )
(Calhoun C i r c u i t Court, CV-03-169)
WOODALL,
J u s t i c e .
W i l l i a m
Meehan,
Ph.D.,
F r a n k
Romano,
Ph.D., a n d
J a c k s o n v i l l e
S t a t e U n i v e r s i t y ("the
U n i v e r s i t y " ) , d e f e n d a n t s
i n an a c t i o n f i l e d b y
R. D a v i d W h e t s t o n e , Ph.D., p e t i t i o n
t h i s
1081413
C o u r t
f o r a w r i t
o f mandamus,
s e e k i n g a p r o t e c t i v e
o r d e r
r e l a t e d t o c e r t a i n
d i s c o v e r y , an o r d e r
p r o h i b i t i n g
c e r t a i n
e x t r a j u d i c i a l s t a t e m e n t s b y W h e t s t o n e and h i s c o u n s e l , and an
o r d e r
s e a l i n g p a r t o f t h e t r i a l
c o u r t ' s r e c o r d .
We
d i s m i s s
t h e U n i v e r s i t y as a d e f e n d a n t ,
and we g r a n t t h e p e t i t i o n i n
p a r t , d e n y i t
i n p a r t , and i s s u e t h e w r i t .
A r t i c l e I , § 14, A l a b a m a C o n s t i t u t i o n o f 1 9 0 1 , p r o v i d e s
" [ t ] h a t t h e S t a t e o f A l a b a m a
s h a l l n e v e r be made a d e f e n d a n t
i n any c o u r t o f l a w o r e q u i t y . "
" T h i s C o u r t h a s e x t e n d e d t h e
r e s t r i c t i o n on s u i t s a g a i n s t t h e S t a t e f o u n d i n
§ 14 ' t o
t h e
s t a t e ' s
i n s t i t u t i o n s o f h i g h e r
l e a r n i n g ' and h a s h e l d
t h o s e
i n s t i t u t i o n s
a b s o l u t e l y immune f r o m
s u i t as a g e n c i e s
o f t h e
S t a t e . "
Ex p a r t e T r o y U n i v . , 961 So. 2d 105, 109 ( A l a . 200
6 ) .
T h u s , t h e U n i v e r s i t y " i s
an i n s t r u m e n t a l i t y o f t h e S t a t e o f
A l a b a m a , and i s t h e r e f o r e immune
f r o m
s u i t . "
E l l i s o n
v .
A b b o t t , 337 So. 2d 756, 757 ( A l a .
1 9 7 6 ) .
F o r t h e s e
r e a s o n s ,
we d i s m i s s t h e U n i v e r s i t y as a d e f e n d a n t .
See A l a b a m a A g r i c .
& Mech. U n i v . v . J o n e s . 895 So. 2d 867, 873 ( A l a . 2 0 0 4 ) .
F a c t s and P r o c e d u r a l
H i s t o r y
W h e t s t o n e ,
a
t e n u r e d
p r o f e s s o r
o f
b i o l o g y
a t t h e
U n i v e r s i t y , a l l e g e s t h a t , d u r i n g t h e c o u r s e o f h i s e m p l o y m e n t ,
2
1081413
he h a s p l a c e d h i s p r i v a t e
c o l l e c t i o n o f p l a n t
s p e c i m e n s i n
t h e U n i v e r s i t y ' s h e r b a r i u m f o r
h i s s t u d e n t s t o s t u d y .
D u r i n g
h i s e m p l o y m e n t , W h e t s t o n e h a s a l s o
p l a c e d i n t h e h e r b a r i u m
s p e c i m e n s
o t h e r t h a n t h o s e i n h i s p r i v a t e
c o l l e c t i o n , i . e . ,
s p e c i m e n s
t h a t
he
c o l l e c t e d
u n d e r
a
c o n t r a c t
w i t h t h e
U n i v e r s i t y .
Meehan i s
t h e p r e s i d e n t o f t h e U n i v e r s i t y , and Romano i s
t h e h e a d o f t h e b i o l o g y d e p a r t m e n t .
T h i s d i s p u t e a r o s e
a f t e r
W h e t s t o n e i n f o r m e d Meehan and Romano o r h i s
p r e d e c e s s o r
t h a t
W h e t s t o n e p l a n n e d t o move h i s p e r s o n a l c o l l e c t i o n o f p l a n t
s p e c i m e n s
and h i s s p e c i m e n
c a s e s
f r o m
t h e
U n i v e r s i t y ' s
h e r b a r i u m t o a n o t h e r
l o c a t i o n .
I t a p p e a r s
u n d i s p u t e d
t h a t
Meehan t h e n i n s t r u c t e d Romano o r h i s
p r e d e c e s s o r t o i n v e n t o r y
a l l
t h e s p e c i m e n s
i n t h e h e r b a r i u m .
A l s o ,
a c c o r d i n g t o
W h e t s t o n e , he was t h e n d e n i e d a c c e s s t o h i s
s p e c i m e n s ,
c a s e s ,
and o t h e r i t e m s o f p e r s o n a l p r o p e r t y , when t h e l o c k s t o t h e
h e r b a r i u m
were
c h a n g e d a t
Meehan's
d i r e c t i o n .
However,
Meehan
d e n i e s
t e l l i n g
anyone t o c h a n g e t h e l o c k s
t o t h e
h e r b a r i u m .
I n F e b r u a r y 2003, W h e t s t o n e s u e d t h e U n i v e r s i t y , Meehan,
and Romano. H i s c o m p l a i n t s o u g h t a j u d g m e n t d e c l a r i n g h i m
t h e
3
1081413
owner o f t h e p l a n t
s p e c i m e n s
a n d
o t h e r
p e r s o n a l
p r o p e r t y
l o c a t e d i n t h e h e r b a r i u m .
A l s o , i t i n c l u d e d a c l a i m t h a t t h e
d e f e n d a n t s
h a d
c o n v e r t e d
W h e t s t o n e ' s
p r o p e r t y .
F o r
t h i s
a l l e g e d c o n v e r s i o n , W h e t s t o n e s o u g h t c o m p e n s a t o r y damages o f
a t l e a s t $600,000 and p u n i t i v e damages.
On A p r i l 17, 2009, W h e t s t o n e
f i l e d a m o t i o n i n l i m i n e ,
a s k i n g t h e t r i a l c o u r t t o d e t e r m i n e w h e t h e r he c o u l d
i n t r o d u c e
a t
t r i a l
e v i d e n c e
p r o f f e r e d
w i t h
t h e m o t i o n
r e l a t e d t o
a l l e g a t i o n s
t h a t
Meehan
h a d
p l a g i a r i z e d p o r t i o n s
o f h i s
d o c t o r a l
d i s s e r t a t i o n .
The d e f e n d a n t s moved t h e t r i a l
c o u r t
t o
s t r i k e
t h a t e v i d e n c e o r , i n t h e a l t e r n a t i v e , t o s e a l t h e
m o t i o n i n l i m i n e , t h e m a t e r i a l s s u b m i t t e d
w i t h i t ,
and
t h e i r
r e s p o n s e t o i t . The d e f e n d a n t s a l s o moved f o r a p r o t e c t i v e
o r d e r
p r o h i b i t i n g W h e t s t o n e and h i s c o u n s e l
f r o m m a k i n g any
e x t r a j u d i c i a l comments c o n c e r n i n g
t h e a l l e g e d p l a g i a r i s m o r
i n c l u d i n g any f u r t h e r m e n t i o n o f t h e s u b j e c t i n any
u n s e a l e d
c o u r t
f i l i n g .
The
t r i a l
c o u r t d e n i e d t h e d e f e n d a n t s '
m o t i o n
and h a s n o t r u l e d on W h e t s t o n e ' s m o t i o n i n l i m i n e .
Meehan
r e c e i v e d
h i s d o c t o r a t e
f r o m t h e U n i v e r s i t y o f
A l a b a m a . On A p r i l 28, 2009, W h e t s t o n e n o t i c e d t h e d e p o s i t i o n s
o f J u d y B o n n e r , Ph.D., e x e c u t i v e
v i c e p r e s i d e n t and
p r o v o s t
4
1081413
f o r
a c a d e m i c a f f a i r s a t t h e U n i v e r s i t y o f A l a b a m a , and James
M c L e a n ,
Ph.D., dean
o f t h e D e p a r t m e n t
o f E d u c a t i o n
a t t h e
U n i v e r s i t y o f A l a b a m a .
W h e t s t o n e a l s o n o t i c e d t h e d e p o s i t i o n
o f
P a m e l a
S t i n s o n ,
Meehan's
e x e c u t i v e
s e c r e t a r y .
W h e t s t o n e
a t t a c h e d
t o
e a c h
d e p o s i t i o n
n o t i c e
a
r e q u e s t
f o r
t h e
p r o d u c t i o n
o f , among
o t h e r
t h i n g s ,
d o c u m e n t s
r e l a t e d
t o
Meehan's d i s s e r t a t i o n and any c h a r g e s o f p l a g i a r i s m
r e g a r d i n g
t h e d i s s e r t a t i o n . The d e f e n d a n t s a g a i n moved t h e t r i a l
c o u r t
f o r
a p r o t e c t i v e o r d e r
and t o q u a s h t h e d e p o s i t i o n
s u b p o e n a s
o f B o n n e r , M c L e a n ,
and
S t i n s o n .
The
t r i a l
c o u r t
d e n i e d t h e
d e f e n d a n t s ' m o t i o n s w i t h o u t any e x p l a n a t i o n .
The
d e f e n d a n t s
moved
t h e
t r i a l
c o u r t
t o
r e c o n s i d e r
i t s d e n i a l
o f
t h e i r
m o t i o n s .
The
t r i a l
c o u r t d e n i e d t h a t m o t i o n as w e l l .
On
J u l y 27, 2009, t h e d e f e n d a n t s
p e t i t i o n e d
t h i s
C o u r t
f o r
a w r i t o f mandamus, a s k i n g us t o d i r e c t t h e
t r i a l
c o u r t
" t o
g r a n t
a
p r o t e c t i v e
o r d e r
i n
f a v o r
o f
d e f e n d a n t s
...
p r o h i b i t i n g
d i s c o v e r y
o f any m a t t e r
r e l a t e d t o Dr.
W i l l i a m
Meehan's d o c t o r a l d i s s e r t a t i o n o r p l a g i a r i s m and q u a s h i n g t h e
d e p o s i t i o n
n o t i c e s
o f
Dr.
M c L e a n ,
Dr.
B o n n e r
and
P a m e l a
S t i n s o n . "
P e t i t i o n ,
a t 11.
The d e f e n d a n t s
f u r t h e r
r e q u e s t
t h a t
we
d i r e c t
t h e
t r i a l
c o u r t
t o
i s s u e
an
o r d e r
5
1081413
" p r o h i b i t [ i n g ]
[ W h e t s t o n e ] ,
[ W h e t s t o n e ' s ]
c o u n s e l ,
a n d / o r
t h e i r
r e p r e s e n t a t i v e s f r o m m a k i n g
e x t r a j u d i c i a l comments o r
d i s c l o s u r e s
r e g a r d i n g
D r .
W i l l i a m
Meehan's
d o c t o r a l
d i s s e r t a t i o n and [ d i r e c t i n g ] t h a t t h e c o u r t r e c o r d be s e a l e d . "
P e t i t i o n , a t 11.
I s s u e s
I n
o r d e r
t o r e s o l v e
t h i s
m a t t e r ,
we must
a d d r e s s two
i s s u e s : (1) w h e t h e r t h e t r i a l c o u r t e x c e e d e d i t s d i s c r e t i o n i n
a l l o w i n g t h e d i s c o v e r y o f i n f o r m a t i o n r e l a t e d t o a l l e g a t i o n s
t h a t Meehan p l a g i a r i z e d p o r t i o n s o f h i s d i s s e r t a t i o n ; and (2)
w h e t h e r t h e t r i a l
c o u r t e x c e e d e d i t s d i s c r e t i o n i n f a i l i n g t o
g r a n t
t h e
d e f e n d a n t s '
m o t i o n
t o
p r o h i b i t
e x t r a j u d i c i a l
s t a t e m e n t s
r e g a r d i n g Meehan's d i s s e r t a t i o n and t h e p l a g i a r i s m
a l l e g a t i o n s .
S t a n d a r d o f R e v i e w
"'Mandamus i s an e x t r a o r d i n a r y remedy and
w i l l
be g r a n t e d
o n l y where t h e r e i s " ( 1 ) a c l e a r
l e g a l
r i g h t i n t h e p e t i t i o n e r t o t h e o r d e r s o u g h t ; (2) an
i m p e r a t i v e
d u t y
upon
t h e r e s p o n d e n t
t o
p e r f o r m ,
a c c o m p a n i e d by a r e f u s a l t o do s o ; (3) t h e l a c k o f
a n o t h e r
a d e q u a t e remedy; and (4) p r o p e r l y
i n v o k e d
j u r i s d i c t i o n o f t h e c o u r t . "
Ex p a r t e A l f a b ,
I n c . ,
586 So. 2d 889, 891 ( A l a . 1 9 9 1 ) .
T h i s
C o u r t
w i l l
n o t
i s s u e t h e w r i t o f mandamus where t h e p e t i t i o n e r
has
" ' f u l l and a d e q u a t e
r e l i e f ' "
by a p p e a l .
S t a t e
v.
Cobb, 288 A l a . 675, 678
, 264 So. 2d 5 2 3 , 526
6
1081413
(1972)
( q u o t i n g S t a t e v. W i l l i a m s , 69 A l a . 3 1 1 , 316
(18 8 1 ) ) . ' "
Ex p a r t e
C a r l i s l e ,
[Ms. 1
08
0038 , J u n e 30, 2009]
So. 3d
,
( A l a .
2009)
( q u o t i n g Ex p a r t e Ocwen F e d . Bank, FSB,
872 So. 2d 810, 813 ( A l a . 2 0 0 3 ) ) .
" D i s c o v e r y m a t t e r s a r e w i t h i n t h e t r i a l
c o u r t ' s
s o u n d d i s c r e t i o n , a n d t h i s C o u r t
w i l l
n o t r e v e r s e a
t r i a l c o u r t ' s r u l i n g on a d i s c o v e r y i s s u e u n l e s s t h e
t r i a l
c o u r t
has
c l e a r l y
e x c e e d e d i t s d i s c r e t i o n .
Home I n s . Co. v . R i c e ,
585 So. 2d 859, 862 ( A l a .
1 9 9 1 ) .
A c c o r d i n g l y , mandamus w i l l
i s s u e t o r e v e r s e
a t r i a l c o u r t ' s r u l i n g on a d i s c o v e r y i s s u e o n l y (1)
where
t h e r e
i s a
s h o w i n g
t h a t
t h e
t r i a l
c o u r t
c l e a r l y e x c e e d e d i t s d i s c r e t i o n , and (2) where t h e
a g g r i e v e d
p a r t y does n o t h a v e an a d e q u a t e remedy b y
o r d i n a r y a p p e a l .
...
"
Ocwen, 872 So. 2d a t 813.
A n a l y s i s
Meehan and Romano, t h e r e m a i n i n g
d e f e n d a n t s
a f t e r
o u r
d i s m i s s a l o f t h e U n i v e r s i t y as a d e f e n d a n t ,
f i r s t
a r g u e
t h a t
t h i s
C o u r t
s h o u l d
i s s u e a
w r i t o f mandamus
d i r e c t i n g
t h e
t r i a l
c o u r t
t o
i s s u e
a
p r o t e c t i v e
o r d e r
p r o h i b i t i n g t h e
d i s c o v e r y o f i n f o r m a t i o n r e l a t e d t o Meehan's
d i s s e r t a t i o n and
t o
q u a s h t h e d e p o s i t i o n n o t i c e s o f B o n n e r and S t i n s o n .
1
As
1Meehan and Romano a l s o p e t i t i o n e d t h i s C o u r t t o
d i r e c t
t h e
t r i a l
c o u r t t o q u a s h t h e n o t i c e o f M c L e a n ' s
d e p o s i t i o n .
However,
W h e t s t o n e
d e p o s e d
McLean
on
J u l y
28,
2009.
T h e r e f o r e ,
Meehan and Romano's
r e q u e s t
t h a t
t h e n o t i c e o f
M c L e a n ' s d e p o s i t i o n be q u a s h e d has b e e n r e n d e r e d
moot.
7
1081413
n o t e d p r e v i o u s l y , "'[m]andamus i s an e x t r a o r d i n a r y remedy.'"
C a r l i s l e ,
So.
3d
a t
( q u o t i n g Ocwen,
872
So.
2d
a t
8 1 3 ) .
T h i s
c a s e
f a l l s
s q u a r e l y
w i t h i n
t h i s
C o u r t ' s
j u r i s d i c t i o n .
T h e r e f o r e ,
i n
o r d e r
t o
p r e v a i l ,
Meehan
and
Romano must d e m o n s t r a t e
(1) t h a t t h e y h a v e a c l e a r l e g a l
r i g h t
t o t h e p r o t e c t i v e o r d e r ;
(2) t h a t t h e
t r i a l
c o u r t
r e f u s e d
t o
i s s u e
t h e
o r d e r ;
and
(3)
t h a t
t h e y do
n o t h a v e an
a d e q u a t e
remedy by
a p p e a l .
See Ocwen,
s u p r a .
As
t o w h e t h e r mandamus i s t h e a p p r o p r i a t e
p r o c e e d i n g
f o r
r e l i e f
i n t h i s c a s e ,
t h i s C o u r t has
s t a t e d :
" G e n e r a l l y , an a p p e a l o f a d i s c o v e r y o r d e r i s an
a d e q u a t e remedy
I n c e r t a i n e x c e p t i o n a l
c a s e s ,
h o w e v e r , r e v i e w
by
a p p e a l o f
a d i s c o v e r y
o r d e r
may
be
i n a d e q u a t e ,
f o r e x a m p l e ,
...
when
a
d i s c o v e r y
o r d e r c o m p e l s t h e p r o d u c t i o n
o f p a t e n t l y
i r r e l e v a n t
o r
d u p l i c a t i v e
d o c u m e n t s ,
s u c h
as
t o
c l e a r l y
c o n s t i t u t e
h a r a s s m e n t
o r
i m p o s e
a
b u r d e n
on
t h e
p r o d u c i n g
p a r t y f a r o u t o f p r o p o r t i o n t o any
b e n e f i t
t h a t may
o b t a i n t o t h e
r e q u e s t i n g
p a r t y
"
Ocwen, 872
So.
2d a t 813
( f o o t n o t e o m i t t e d ) . H e r e , Meehan
and
Romano a r g u e
t h a t
" t h e
d i s c o v e r y
s o u g h t
...
i s an
i m p r o p e r
a t t e m p t
t o
o b t a i n
p a t e n t l y
i r r e l e v a n t
and
i m m a t e r i a l
i n f o r m a t i o n
i n o r d e r
t o h a r a s s ,
u n d u l y b u r d e n and
e m b a r r a s s
t h e
d e f e n d a n t s . "
P e t i t i o n ,
a t 11-12.
T h e r e f o r e ,
t h e
t r i a l
c o u r t ' s
d e c i s i o n
r e g a r d i n g
t h e
d e f e n d a n t s '
m o t i o n
f o r
a
8
1081413
p r o t e c t i v e o r d e r a l l e g e d l y f a l l s w i t h i n one
o f t h e
e x c e p t i o n s
s e t f o r t h i n Ocwen, and mandamus i s an a p p r o p r i a t e a v e n u e f o r
r e v i e w
o f t h a t d e c i s i o n .
We
n e x t
a d d r e s s
w h e t h e r
Meehan
and
Romano
h a v e
d e m o n s t r a t e d a c l e a r l e g a l
r i g h t t o t h e p r o t e c t i v e o r d e r
t h e
t r i a l
c o u r t r e f u s e d t o i s s u e .
" ' I n Ex p a r t e AMI West A l a b a m a G e n e r a l H o s p i t a l ,
582
So.
2d 484,
485-86
( A l a . 1 9 9 1 ) , we
e x p l a i n e d :
" ' " T h i s
r u l e
[ A l a .
R.
C i v .
P.
2 6 ( b ) ( 1 ) ]
c o n t e m p l a t e s
a
b r o a d
r i g h t
o f
d i s c o v e r y .
D i s c o v e r y
s h o u l d
be
p e r m i t t e d
i f
t h e r e
i s
any
l i k e l i h o o d
t h a t
t h e
i n f o r m a t i o n
s o u g h t
w i l l
a i d
t h e
p a r t y
s e e k i n g
d i s c o v e r y
i n
t h e
p u r s u i t
o f
h i s
c l a i m o r d e f e n s e . D i s c o v e r y
i s n o t
l i m i t e d
t o
m a t t e r s
t h a t
w o u l d
be
a d m i s s i b l e
as
e v i d e n c e i n t h e
t r i a l
o f t h e
l a w s u i t .
Ex
p a r t e D o r s e y T r a i l e r s ,
I n c . , 397
So.
2d
98
( A l a .
1 9 8 1 ) . "
"'"A
t r i a l
j u d g e , who
has
b r o a d
d i s c r e t i o n
i n
t h i s
a r e a ,
s h o u l d
n e v e r t h e l e s s
i n c l i n e t o w a r d p e r m i t t i n g
t h e b r o a d e s t
d i s c o v e r y and
u t i l i z e h i s d i s c r e t i o n
t o
i s s u e p r o t e c t i v e o r d e r s
t o p r o t e c t t h e i n t e r e s t s o f
p a r t i e s o p p o s i n g d i s c o v e r y . "
582
So.
2d a t
486.
" ' I n
o r d e r
f o r t h e m a t t e r
t o be
d i s c o v e r a b l e ,
t h e
i n f o r m a t i o n
s o u g h t
must
a l s o
be
r e l e v a n t .
" ' R e l e v a n c y , ' as u s e d i n o u r d i s c o v e r y
r u l e s , means
r e l e v a n t
t o
t h e
s u b j e c t
m a t t e r
o f
t h e
a c t i o n ;
e v i d e n c e
i s
r e l e v a n t
i f i t a f f o r d s
a
r e a s o n a b l e
p o s s i b i l i t y t h a t t h e i n f o r m a t i o n s o u g h t w i l l l e a d t o
o t h e r e v i d e n c e t h a t
w i l l be
a d m i s s i b l e . ..."'"
9
1081413
Ex p a r t e CIT Commc'n F i n . C o r p . , 897
So. 2d 296, 299-300 ( A l a .
2004)
( q u o t i n g
Zaden v.
E l k u s ,
881
So.
2d
993,
1005
( A l a .
2003) ).
" R e c o g n i z i n g
t h a t t h e r i g h t t o d i s c o v e r y i s n o t
u n l i m i t e d
and
t h e
t r i a l
c o u r t
has
b r o a d p o w e r s
t o
c o n t r o l
d i s c o v e r y
t o
p r e v e n t
a b u s e ,
n e v e r t h e l e s s ,
t h e
p a r t y
who
s e e k s
a
p r o t e c t i v e
o r d e r
has
t h e
b u r d e n
o f s h o w i n g g o o d c a u s e why
d i s c o v e r y
s h o u l d
n o t be
had.
" ' T h u s ,
t o
be
e n t i t l e d
t o
a
p r o t e c t i v e
o r d e r , a movant must e i t h e r show g o o d c a u s e
why
t h e
o b j e c t e d - t o
d e p o s i t i o n
o r
p r o d u c t i o n
o f
d o c u m e n t s
w o u l d
be
u n d u l y
b u r d e n s o m e
o r
e x p e n s i v e ,
o p p r e s s i v e ,
e m b a r r a s s i n g
o r
a n n o y i n g ,
o r
t h a t
t h e
s u b j e c t m a t t e r s o u g h t t o be
d i s c o v e r e d
i s
p r i v i l e g e d .
...'"
Ex
p a r t e
S c o t t ,
414
So.
2d
939,
941
( A l a .
1
982)
( q u o t i n g
A s s u r e d
I n v e s t o r s
L i f e
I n s .
Co.
v.
N a t i o n a l U n i o n
A s s o c s . ,
I n c . ,
362
So.
2d
228,
231
( A l a . 1
9 7 8 ) ,
o v e r r u l e d
on
o t h e r
g r o u n d s by Ex p a r t e N o r f o l k S o u t h e r n Ry.,
897
So. 2d 290
( A l a .
2004) ).
H e r e , Meehan and Romano a r g u e t h a t t h e d i s c o v e r y
s o u g h t
i s
i r r e l e v a n t
and
t h a t
" t h e r e
can
be
no
a l l e g a t i o n
t h a t
i s
more
p r o f e s s i o n a l l y
and
p e r s o n a l l y
h a r a s s i n g [ , ]
i n t i m i d a t i n g [ , ] and e m b a r r a s s i n g t o a w e l l - r e s p e c t e d
and
d e d i c a t e d
u n i v e r s i t y p r e s i d e n t
...
t h a n t h a t
o f
p a t e n t l y i r r e l e v a n t
a l l e g a t i o n s o f p l a g i a r i s m .
Dr.
10
1081413
Meehan's i n t e g r i t y and p r o f e s s i o n a l r e p u t a t i o n [ a r e ]
v a l u a b l e
a s s e t [ s ] t o h i m and [ t h e ] U n i v e r s i t y . "
P e t i t i o n , a t 25. We a g r e e t h a t t h e d i s c o v e r y s o u g h t c o n c e r n s
i r r e l e v a n t
m a t t e r s .
A l s o ,
t h e i n f o r m a t i o n
s o u g h t
does n o t
" a p p e a r [ ]
r e a s o n a b l y
c a l c u l a t e d t o l e a d t o t h e d i s c o v e r y o f
a d m i s s i b l e
e v i d e n c e . "
R u l e
2 6 ( b ) ( 1 ) ,
A l a . R.
C i v . P.
F u r t h e r ,
d i s c o v e r y c o n c e r n i n g a l l e g a t i o n s o f p l a g i a r i s m
c o u l d
o n l y p r o v e " e m b a r r a s s i n g and a n n o y i n g " t o Meehan. See
S c o t t ,
s u p r a .
W h e t s t o n e
h a s
a l l e g e d
t h a t
Meehan
and
Romano
m a l i c i o u s l y ,
w i l l f u l l y , and w r o n g f u l l y
c o n v e r t e d h i s p e r s o n a l
p r o p e r t y t o t h e i r own u s e . A l s o , he h a s a s k e d t h e t r i a l
c o u r t
t o d e t e r m i n e t h e o w n e r s h i p o f p e r s o n a l p r o p e r t y
l o c a t e d i n t h e
U n i v e r s i t y ' s h e r b a r i u m .
Meehan's d o c t o r a l
d i s s e r t a t i o n and
t h e p l a g i a r i s m a l l e g a t i o n s a r e c o m p l e t e l y
i r r e l e v a n t t o t h e s e
c l a i m s .
S i m p l y
s t a t e d ,
e v i d e n c e
c o n c e r n i n g
t h e
a l l e g e d
p l a g i a r i s m h a s no " t e n d e n c y t o make t h e e x i s t e n c e o f any f a c t
t h a t i s
o f c o n s e q u e n c e t o t h e d e t e r m i n a t i o n
o f t h e a c t i o n more
p r o b a b l e
o r
l e s s
p r o b a b l e
t h a n
i t w o u l d
be
w i t h o u t t h e
e v i d e n c e . "
R u l e 4 0 1 , A l a .
R. E v i d .
M o r e o v e r ,
t h e r e i s no
i n d i c a t i o n
t h a t
d i s c o v e r y
r e l a t e d t o s u c h
a l l e g a t i o n s i s
11
1081413
l i k e l y
t o
l e a d
t o
t h e
d i s c o v e r y
o f
a d m i s s i b l e
e v i d e n c e
r e g a r d i n g W h e t s t o n e ' s
c l a i m s .
W h e t s t o n e
a r g u e s
t h a t
"Meehan's
p l a g i a r i s m
o f
h i s
d o c t o r a l
d i s s e r t a t i o n
i l l u s t r a t e s
a c o m p l e t e d i s r e s p e c t
f o r
t h e
i n t e l l e c t u a l
p r o p e r t y
o f
o t h e r s
and,
t h e r e f o r e ,
s i g n i f i c a n t l y
p a r a l l e l s
h i s
i n t e n t i n
t h i s
c a s e
t o
t o t a l l y
d i s r e g a r d
[my]
i n t e l l e c t u a l
p r o p e r t y
r i g h t s . "
W h e t s t o n e ' s
b r i e f ,
a t
16.
However, t h e
c l a i m s
i n W h e t s t o n e ' s
c o m p l a i n t
r e l a t e
t o
t h e
a l l e g e d
c o n v e r s i o n
and
t h e
o w n e r s h i p
o f
p e r s o n a l ,
n o t
i n t e l l e c t u a l ,
p r o p e r t y .
W h e t s t o n e a l s o
a r g u e s
t h a t
" [ e ] v i d e n c e
t h a t
Meehan
p l a g i a r i z e d someone
e l s e ' s
c o p y r i g h t e d
d i s s e r t a t i o n c o u l d l e a d t o d i s c o v e r a b l e
e v i d e n c e
t h a t i s p r o b a t i v e
o f h i s i n t e n t r e l a t e d t o h i s c o n v e r s i o n
o f
[ W h e t s t o n e ' s p l a n t ] s p e c i m e n s . "
W h e t s t o n e ' s b r i e f , a t 17.
I t
i s
t r u e
t h a t
R u l e
4 0 4 ( b ) ,
A l a .
R.
E v i d . ,
p r o v i d e s
t h a t
e v i d e n c e o f o t h e r w r o n g s may
be a d m i s s i b l e f o r t h e p u r p o s e
o f
p r o v i n g i n t e n t .
However, when i n t e n t o f a p a r t y i s an
i s s u e ,
" t h a t p a r t y ' s p r i o r c o n d u c t and
a c t s on o t h e r o c c a s i o n s
w h i c h
h a v e a b e a r i n g upon t h a t p a r t y ' s i n t e n t i n a s u b s e q u e n t a c t i o n
a r e c o m p e t e n t e v i d e n c e . "
R o b e r s o n v. Ammons, 477
So.
2d
957,
962
( A l a .
1 9 8 5 ) .
I n
o r d e r
t o
q u a l i f y
as
s u c h
c o m p e t e n t
12
1081413
e v i d e n c e ,
t h e r e
must
be
" e v i d e n c e
o f
p r i o r
s i m i l a r
m i s c o n d u c t . "
Ex p a r t e
H o r t o n , 711 So. 2d 979, 983
( A l a .
1 9 9 8 ) ( e m p h a s i s a d d e d ) .
We a g r e e w i t h Meehan and Romano
t h a t
" t h e r e i s
no l o g i c a l r e l e v a n c y
[ b e t w e e n t h e a l l e g e d p l a g i a r i s m
and W h e t s t o n e ' s
c l a i m s ]
b e c a u s e
t h e p r i o r
a l l e g e d
a c a d e m i c
m i s c o n d u c t
and t h e p r e s e n t
a l l e g e d
c o n v e r s i o n
a r e
w h o l l y
d i s s i m i l a r . "
P e t i t i o n e r s ' r e p l y b r i e f , a t 6.
I n summary, we
a g r e e
w i t h Meehan and Romano
t h a t t h e
d i s c o v e r y r e l a t e d t o Meehan's d i s s e r t a t i o n and t h e p l a g i a r i s m
a l l e g a t i o n s s e e k s p a t e n t l y i r r e l e v a n t i n f o r m a t i o n ,
t h a t
s u c h
d i s c o v e r y w o u l d s e r v e o n l y t o e m b a r r a s s and annoy Meehan, and
t h a t ,
t h e r e f o r e , t h e t r i a l
c o u r t
e x c e e d e d
i t s d i s c r e t i o n i n
r e f u s i n g t o p r o h i b i t s u c h d i s c o v e r y .
Thus, Meehan and Romano
h a v e d e m o n s t r a t e d a c l e a r l e g a l
r i g h t t o a p r o t e c t i v e
o r d e r
p r o h i b i t i n g t h e d i s c o v e r y o r u s e o f i n f o r m a t i o n
r e l a t e d t o
Meehan's d i s s e r t a t i o n and t h e p l a g i a r i s m a l l e g a t i o n s , and we
d i r e c t t h e t r i a l
c o u r t t o e n t e r
s u c h an o r d e r .
F u r t h e r ,
we
i n s t r u c t
t h e
t r i a l
c o u r t
t o
q u a s h
t h e
n o t i c e s
o f t h e
d e p o s i t i o n s
o f B o n n e r
a n d S t i n s o n
and t o
s t r i k e
M c L e a n ' s
d e p o s i t i o n t e s t i m o n y f r o m t h e r e c o r d .
13
1081413
Meehan
and
Romano
a l s o
a r g u e
t h a t
t h e
C o u r t
s h o u l d
i n s t r u c t
t h e
t r i a l
c o u r t
t o
i s s u e
a "gag"
o r d e r p r o h i b i t i n g
W h e t s t o n e
and
h i s
c o u n s e l
f r o m
m a k i n g
any
e x t r a j u d i c i a l
s t a t e m e n t
r e g a r d i n g
t h e
p l a g i a r i s m a l l e g a t i o n s and
Meehan's
d i s s e r t a t i o n .
However,
h a v i n g
d e t e r m i n e d
t h a t
i n f o r m a t i o n
r e g a r d i n g
t h e d i s s e r t a t i o n i s n o t d i s c o v e r a b l e , we
t r u s t
t h a t
i t
i s
n o t
n e c e s s a r y
f o r
t h i s
C o u r t
t o
r e m i n d
W h e t s t o n e ' s
c o u n s e l o f t h e l i m i t a t i o n s i m p o s e d on e x t r a j u d i c i a l s t a t e m e n t s
by R u l e s 3.6(a) and
( b ) ( 5 ) , A l a . R.
P r o f . C o n d u c t .
Meehan
and
Romano h a v e
n o t
c i t e d
any
r e l e v a n t
a u t h o r i t y i n s u p p o r t
o f
t h e i r
r e q u e s t
f o r a
"gag"
o r d e r .
T h e r e f o r e ,
we
deny
t h e i r
p e t i t i o n
f o r mandamus r e l i e f
as t o
t h i s
i s s u e .
See
Ex
p a r t e
S h o w e r s ,
812
So.
2d
277 ,
281
( A l a .
2001 )
( n o t i n g
t h a t
a
p e t i t i o n e r ' s
" f a i l u r e
t o
c i t e
a u t h o r i t y
s u p p o r t i n g
h e r
a r g u m e n t s , as r e q u i r e d by R u l e 21,
[ A l a . R. App.
P.,]
p r o v i d e s
t h i s C o u r t w i t h an ample b a s i s f o r r e f u s i n g t o c o n s i d e r
t h o s e
a r g u m e n t s " ) .
Our
d e c i s i o n
t o
i s s u e
t h e
w r i t
o f mandamus
r e g a r d i n g
Meehan and Romano's r e q u e s t
f o r a p r o t e c t i v e o r d e r ,
i n c l u d i n g
o u r d i r e c t i o n t h a t t h e
t r i a l
c o u r t
s t r i k e M c L e a n ' s
d e p o s i t i o n
f r o m t h e r e c o r d , r e n d e r s moot Meehan and Romano's r e q u e s t
t h a t
14
1081413
any
d e p o s i t i o n s
t a k e n
t h a t c o n c e r n Meehan's
d i s s e r t a t i o n be
s e a l e d .
T h e r e f o r e ,
we
deny t h e p e t i t i o n
f o r t h e w r i t o f
mandamus as t o t h a t i s s u e as
w e l l .
C o n c l u s i o n
The U n i v e r s i t y i s d i s m i s s e d
as a d e f e n d a n t .
Meehan and
Romano, t h e r e m a i n i n g
d e f e n d a n t s , h a v e d e m o n s t r a t e d a c l e a r
l e g a l r i g h t t o a p r o t e c t i v e o r d e r i n t h i s c a s e .
T h e r e f o r e ,
we
g r a n t
t h e i r p e t i t i o n i n p a r t and i s s u e t h e w r i t o f mandamus,
i n s t r u c t i n g
t h e
t r i a l
c o u r t
t o
e n t e r
a
p r o t e c t i v e
o r d e r
p r o h i b i t i n g
t h e d i s c o v e r y
o r u s e o f
i n f o r m a t i o n
r e g a r d i n g
Meehan's d i s s e r t a t i o n
and t h e p l a g i a r i s m a l l e g a t i o n s , t o q u a s h
t h e n o t i c e s o f t h e
d e p o s i t i o n s o f B o n n e r a n d S t i n s o n , and t o
s t r i k e M c L e a n ' s d e p o s i t i o n t e s t i m o n y
f r o m t h e r e c o r d .
I n a l l
o t h e r
r e s p e c t s , t h e p e t i t i o n i s d e n i e d .
UNIVERSITY DISMISSED AS A DEFENDANT; P E T I T I O N GRANTED IN
PART AND DENIED IN PART; WRIT ISSUED.
Cobb, C . J . , and S t u a r t , P a r k e r , and Shaw, J J . , c o n c u r .
15 | December 4, 2009 |
49d342ad-a43f-42f0-80b6-cd17814f24d7 | Elaine Johnson v. Brunswick Riverview Club, Inc., and Leiserv, Inc., d/b/a Brunswick Riverview Lanes | N/A | 1071128 | Alabama | Alabama Supreme Court | Rel 12/04/09
Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e
Reporter of Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741 ((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l o r
o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s
may
be
made b e f o r e
t h e o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1071128
E l a i n e Johnson
v.
Brunswick R i v e r v i e w Club, Inc.,
and L e i s e r v , Inc.,
d/b/a
Brunswick R i v e r v i e w Lanes
Appeal from Shelby C i r c u i t Court
(CV-07-138)
PER CURIAM.
E l a i n e J o h n s o n a p p e a l s f r o m a summary j u d g m e n t e n t e r e d
i n
f a v o r o f B r u n s w i c k
R i v e r v i e w
C l u b ,
I n c . , a n d L e i s e r v , I n c . ,
d/b/a
B r u n s w i c k
R i v e r v i e w
L a n e s
( h e r e i n a f t e r r e f e r r e d t o
c o l l e c t i v e l y as " B r u n s w i c k " ) .
We
a f f i r m .
F a c t s a n d P r o c e d u r a l H i s t o r y
1071128
The
e v i d e n c e ,
v i e w e d
i n
t h e
l i g h t
most
f a v o r a b l e
t o
J o h n s o n ,
t h e
nonmovant,
W i l m a
C o r p .
v.
F l e m i n g
Foods
o f
A l a b a m a ,
I n c . ,
613
So.
2d
359
( A l a .
1 9 9 3 ) ,
s u g g e s t s
t h e
f o l l o w i n g
f a c t s .
On
November
14,
2005,
a t
a p p r o x i m a t e l y
3:30
p.m.,
J o h n s o n ' s
s o n ,
K e i t h
Oden,
a r r i v e d
a l o n e
a t
B r u n s w i c k
R i v e r v i e w
L a n e s ,
a
b o w l i n g
a l l e y
owned
by
L e i s e r v ,
I n c .
B r u n s w i c k
R i v e r v i e w
C l u b ,
I n c . ,
owns
t h e
l i c e n s e
f o r
t h e
o p e r a t i o n
o f
a c l u b
on
t h e
p r e m i s e s
o f B r u n s w i c k
R i v e r v i e w
L a n e s .
B e t w e e n 5:00
p.m.
and 5:30
p.m.,
Oden t e l e p h o n e d Shawn
S c r i p p s
and
a s k e d S c r i p p s
t o
j o i n
h i m
a t t h e
b o w l i n g
a l l e y .
A c c o r d i n g
t o
S c r i p p s ,
he
c o u l d
t e l l
f r o m
t h e
t e l e p h o n e
c o n v e r s a t i o n
t h a t Oden was
i n t o x i c a t e d . A t a p p r o x i m a t e l y
6:00
p.m.,
S c r i p p s
a r r i v e d a t t h e b o w l i n g
a l l e y and b e g a n t o b o w l
and
t o d r i n k b e e r w i t h Oden.
A c c o r d i n g
t o S c r i p p s , Oden
was
" l o u d
and
b o i s t e r o u s " w h i l e
t h e y were a t t h e
b o w l i n g
a l l e y ,
and
an e m p l o y e e o f t h e b o w l i n g
a l l e y " h a d
t o
c a l l K e i t h down
b e c a u s e he was
u s i n g i n a p p r o p r i a t e l a n g u a g e i n t h e v i c i n i t y
o f
a f a m i l y who
was
a l s o b o w l i n g . "
A c r e d i t - c a r d r e c e i p t shows
t h a t b e t w e e n
3:37
p.m.
and
7:54
p.m.
t h e
e m p l o y e e s
o f
t h e
b o w l i n g
a l l e y
s o l d
f o u r
60-ounce p i t c h e r s
o f b e e r
t o Oden.
2
1071128
A r o u n d 8:00 p.m.,
Oden
d r o v e h i s v e h i c l e f r o m t h e
b o w l i n g
a l l e y ; nobody e l s e was i n t h e v e h i c l e .
S h o r t l y a f t e r
l e a v i n g
t h e b o w l i n g
a l l e y , Oden was i n v o l v e d i n a o n e - v e h i c l e
a c c i d e n t
i n w h i c h he was
k i l l e d .
Oden's b l o o d - a l c o h o l
l e v e l a t t h e
t i m e o f t h e a c c i d e n t was 0.39, a l m o s t
f i v e
t i m e s
t h e
l e g a l
l i m i t
f o r o p e r a t i n g
a v e h i c l e . See § 3 2 - 5 A - 1 9 1 , A l a . Code
1975.
The
i n t e r n a l
a l c o h o l i c - b e v e r a g e - s e r v i c e
p o l i c y
a t
B r u n s w i c k R i v e r v i e w L a n e s p r o h i b i t e d s e l l i n g a p i t c h e r o f b e e r
f o r
c o n s u m p t i o n b y a
s i n g l e
i n d i v i d u a l .
The
p o l i c y
a l s o
s t a t e d t h a t any c u s t o m e r s h o w i n g v i s i b l e s i g n s o f i n t o x i c a t i o n
s h o u l d be u r g e d b y t h e s e r v e r o r manager t o u s e a l t e r n a t i v e
t r a n s p o r t a t i o n a n d , i f
t h e c u s t o m e r r e f u s e s t o u s e a l t e r n a t i v e
t r a n s p o r t a t i o n , t h e e m p l o y e e s h o u l d
i n f o r m t h e c u s t o m e r
t h a t
t h e a p p r o p r i a t e l a w - e n f o r c e m e n t o f f i c i a l s
w i l l be n o t i f i e d i f
t h e c u s t o m e r a t t e m p t s t o d r i v e a v e h i c l e away f r o m t h e b o w l i n g
a l l e y .
A t t h e t i m e o f h i s d e a t h , Oden was 31 y e a r s o l d ,
and he
owned and o p e r a t e d a l a n d s c a p i n g b u s i n e s s .
J o h n s o n
t e s t i f i e d
t h a t Oden d i d
n o t l i v e w i t h h e r and t h a t he was n o t p r o v i d i n g
h e r any f i n a n c i a l
s u p p o r t
a t t h e t i m e o f h i s d e a t h .
J o h n s o n
3
1071128
a l s o
t e s t i f i e d
t h a t
she
d i d n o t
have
any
e x p e c t a t i o n
o f
r e c e i v i n g
any
f i n a n c i a l
s u p p o r t f r o m Oden
i n t h e
f u t u r e .
J o h n s o n p a i d $3,000 f o r Oden's f u n e r a l e x p e n s e s p u r s u a n t t o a
c o n t r a c t she e n t e r e d i n t o w i t h a f u n e r a l home on November 16,
2005.
On May 5, 2006, J o h n s o n , i n h e r i n d i v i d u a l c a p a c i t y ,
s u e d
B r u n s w i c k , a s s e r t i n g a c l a i m u n d e r A l a b a m a ' s Dram Shop A c t , §
6-5-71, A l a . Code
1975,
and
a
c l a i m
o f
n e g l i g e n t
h i r i n g ,
t r a i n i n g ,
a n d / o r
s u p e r v i s i o n
o f e m p l o y e e s .
B r u n s w i c k moved
f o r
a summary j u d g m e n t ,
a r g u i n g
t h a t
J o h n s o n
d i d n o t
have
s t a n d i n g
t o b r i n g a c l a i m u n d e r t h e Dram Shop A c t b e c a u s e , i t
a r g u e d , she was n o t " i n j u r e d i n p e r s o n , p r o p e r t y ,
o r means o f
s u p p o r t , " as r e q u i r e d by t h e A c t .
B r u n s w i c k a l s o a r g u e d
t h a t
t h e
c l a i m o f n e g l i g e n t
h i r i n g ,
t r a i n i n g ,
a n d / o r
s u p e r v i s i o n
f a i l s
b e c a u s e ,
i t a l l e g e d ,
A l a b a m a
does
n o t
r e c o g n i z e
a
common-law c a u s e o f a c t i o n
f o r t h e n e g l i g e n t
d i s p e n s i n g
o f
a l c o h o l ; t h e Dram Shop A c t p r o v i d e s t h e e x c l u s i v e remedy f o r
t h e
u n l a w f u l
d i s p e n s i n g
o f
a l c o h o l
t o an
a d u l t .
J o h n s o n
r e s p o n d e d
t h a t
she h a d
s t a n d i n g
t o b r i n g a c l a i m u n d e r
t h e
Dram
Shop
A c t
b e c a u s e ,
she
s a i d ,
h e r
m e n t a l
a n g u i s h
c o n s t i t u t e d an i n j u r y t o h e r p e r s o n and h e r payment o f Oden's
4
1071128
f u n e r a l
e x p e n s e s
c o n s t i t u t e d
an
i n j u r y
t o h e r
p r o p e r t y .
J o h n s o n
a l s o
a r g u e d
t h a t
B r u n s w i c k
was
a t t e m p t i n g
t o
m i s r e p r e s e n t
h e r
n e g l i g e n t
h i r i n g ,
t r a i n i n g ,
a n d / o r
s u p e r v i s i o n c l a i m .
J o h n s o n a l l e g e d t h a t
t h i s c l a i m d o e s n o t
a s s e r t
t h a t
B r u n s w i c k
i s l i a b l e
f o r n e g l i g e n t l y
s e r v i n g
a l c o h o l .
J o h n s o n
a r g u e d
t h a t
" [ t ] h e
c o n d u c t
w h i c h [ s h e ]
a l l e g e s c o n s t i t u t e s n e g l i g e n c e
on t h e p a r t o f [ B r u n s w i c k ] i s
t h e c o n d u c t o f h i r i n g ,
t r a i n i n g , a n d / o r s u p e r v i s i n g e m p l o y e e s
i n
c a r r y i n g o u t d u t i e s w h i c h a r e r e q u i r e d b y s t a t u t e . "
On
A p r i l
8, 2008, t h e
t r i a l
c o u r t
e n t e r e d
a summary
j u d g m e n t i n f a v o r o f B r u n s w i c k ,
h o l d i n g :
on
on
" T h i s
m a t t e r
came
b e f o r e
t h e
c o u r t
[ B r u n s w i c k ' s ] m o t i o n f o r summary j u d g m e n t
f i l e d
o r a b o u t November 15, 2007.
The c o u r t
h e a r d
o r a l
a r g u m e n t s on F e b r u a r y 25, 2008.
B o t h
[ J o h n s o n ] and
[ B r u n s w i c k ]
f i l e d
s u p p l e m e n t a l memorandum on M a r c h
10,
2008.
A f t e r
c o n s i d e r a t i o n
o f t h e
m o t i o n s ,
p l e a d i n g s and a r g u m e n t s , t h e c o u r t i s
o f t h e o p i n i o n
t h a t
[ B r u n s w i c k ' s ]
m o t i o n f o r summary j u d g m e n t i s
due t o be g r a n t e d .
The c o u r t
f i n d s t h a t
p l a i n t i f f ,
E l a i n e J o h n s o n , m o t h e r o f t h e d e c e d e n t , b r o u g h t
t h i s
l a w s u i t
i n h e r
i n d i v i d u a l
c a p a c i t y
p u r s u a n t
t o
A l a b a m a ' s
Dram
S h o p
A c t . A l a b a m a
Code
S e c t i o n
6-5-71.
The
c o u r t
f i n d s
t h a t
[ J o h n s o n ] was n o t
i n j u r e d i n ' p e r s o n , p r o p e r t y o r means o f s u p p o r t ' as
c o n t e m p l a t e d i n t h e A c t .
F o r t h e s e
r e a s o n s , and
o t h e r s as s e t o u t i n [ B r u n s w i c k ' s ] b r i e f , t h e c o u r t
h e r e b y
g r a n t s
[ B r u n s w i c k ' s ]
m o t i o n
f o r summary
j u d g m e n t
and
d i s m i s s e s
a l l c l a i m s
by
[ J o h n s o n ]
a g a i n s t
[ B r u n s w i c k ] . "
5
1071128
J o h n s o n
a p p e a l e d .
S t a n d a r d o f R e v i e w
I n P i t t m a n v. U n i t e d T o l l
S y s t e m s ,
L L C , 882 So. 2d 842
( A l a .
2 0 0 3 ) ,
t h i s
C o u r t
s e t f o r t h t h e s t a n d a r d o f r e v i e w
a p p l i c a b l e t o a summary j u d g m e n t :
" T h i s C o u r t ' s r e v i e w o f a summary j u d g m e n t i s
de
n o v o .
" ' I n
r e v i e w i n g t h e d i s p o s i t i o n
o f a
m o t i o n
f o r summary j u d g m e n t , "we
u t i l i z e
t h e same
s t a n d a r d as t h e t r i a l
c o u r t i n
d e t e r m i n i n g
w h e t h e r
t h e e v i d e n c e
b e f o r e
[ i t ] made o u t a g e n u i n e
i s s u e o f m a t e r i a l
f a c t , " B u s s e y v . J o h n D e e r e Co., 531 So. 2d
860,
862
( A l a .
1 9 8 8 ) ,
a n d w h e t h e r t h e
movant was
" e n t i t l e d t o a j u d g m e n t as a
m a t t e r o f l a w . "
W r i g h t v. W r i g h t , 654 So.
2d 542
( A l a . 1
9 9 5 ) ;
R u l e
5 6 ( c ) , A l a .
R.
C i v . P. When t h e
movant makes a p r i m a
f a c i e
s h o w i n g
t h a t t h e r e i s no g e n u i n e
i s s u e o f
m a t e r i a l
f a c t ,
t h e b u r d e n
s h i f t s
t o t h e
nonmovant t o p r e s e n t
s u b s t a n t i a l
e v i d e n c e
c r e a t i n g s u c h an i s s u e . B a s s v . S o u t h T r u s t
Bank o f B a l d w i n
C o u n t y ,
538 So. 2d 7
94
,
797-98
( A l a .
1 9 8 9 ) .
E v i d e n c e
i s
" s u b s t a n t i a l " i f
i t
i s
o f " s u c h w e i g h t a n d
q u a l i t y
t h a t
f a i r - m i n d e d p e r s o n s
i n t h e
e x e r c i s e
o f
i m p a r t i a l
j u d g m e n t
c a n
r e a s o n a b l y i n f e r t h e e x i s t e n c e o f t h e f a c t
s o u g h t t o
be p r o v e d . " W r i g h t , 654 So. 2d
a t
543
( q u o t i n g
West
v .
F o u n d e r s
L i f e
A s s u r a n c e Co. o f F l o r i d a , 547 So. 2d 870,
871
( A l a . 1 9 8 9 ) ) . Our r e v i e w i s f u r t h e r
s u b j e c t t o t h e c a v e a t t h a t t h i s C o u r t must
r e v i e w t h e r e c o r d i n
a l i g h t most f a v o r a b l e
t o
t h e nonmovant
a n d must
r e s o l v e a l l
r e a s o n a b l e d o u b t s a g a i n s t t h e
m o v a n t . W i l m a
6
1071128
C o r p .
v.
F l e m i n g Foods
o f A l a b a m a ,
I n c . ,
613
So.
2d
359
( A l a .
1993)
[ o v e r r u l e d
on
o t h e r g r o u n d s , B r u c e v. C o l e ,
854
So.
2d
47
( A l a .
2 0 0 3 ) ] ; H a n n e r s v.
B a l f o u r
G u t h r i e ,
I n c . ,
564
So.
2d
412,
413
( A l a . 1 9 9 0 ) . ' "
882
So.
2d
a t 844
( q u o t i n g Hobson v. A m e r i c a n C a s t I r o n
P i p e
Co.,
690
So.
2d
341,
344
( A l a . 1 9 9 7 ) ) .
D i s c u s s i o n
F i r s t ,
J o h n s o n
a l l e g e s
t h a t
t h e
t r i a l
c o u r t
e r r e d
i n
e n t e r i n g a summary j u d g m e n t i n f a v o r o f B r u n s w i c k on h e r Dram
Shop A c t
c l a i m b e c a u s e , she
s a y s ,
she
d e m o n s t r a t e d an
i n j u r y
t o h e r
p r o p e r t y
and
an
i n j u r y t o h e r
p e r s o n ,
as
r e q u i r e d
by
t h e
A c t .
S p e c i f i c a l l y ,
J o h n s o n a l l e g e s
t h a t
t h e payment
o f
Oden's f u n e r a l e x p e n s e s c o n s t i t u t e d an i n j u r y t o h e r
p r o p e r t y
and
t h a t
h e r
m e n t a l
a n g u i s h
f r o m
t h e
l o s s
o f
h e r
son
c o n s t i t u t e d an i n j u r y t o h e r p e r s o n w i t h i n t h e m e a n i n g o f
t h e
Dram Shop
A c t .
S e c t i o n 6-5-71, A l a . Code 1975,
A l a b a m a ' s Dram Shop
A c t ,
p r o v i d e s ,
i n p e r t i n e n t p a r t ,
as
f o l l o w s :
" E v e r y
w i f e ,
c h i l d ,
p a r e n t ,
o r
o t h e r
p e r s o n
who
s h a l l
be
i n j u r e d
i n p e r s o n ,
p r o p e r t y ,
o r means
o f
s u p p o r t by
any
i n t o x i c a t e d p e r s o n o r i n c o n s e q u e n c e
o f t h e i n t o x i c a t i o n o f any p e r s o n s h a l l h a v e a r i g h t
o f a c t i o n a g a i n s t
any p e r s o n who
s h a l l ,
by
s e l l i n g ,
g i v i n g ,
o r
o t h e r w i s e
d i s p o s i n g
o f
t o
a n o t h e r ,
c o n t r a r y
t o
t h e
p r o v i s i o n s
o f
l a w ,
any
l i q u o r s
o r
b e v e r a g e s , c a u s e t h e i n t o x i c a t i o n o f s u c h p e r s o n f o r
7
1071128
a l l damages a c t u a l l y s u s t a i n e d , as w e l l as e x e m p l a r y
damages."
T h i s C o u r t has c o n c l u d e d t h a t "§ 6-5-71 i s p e n a l i n n a t u r e and
t h a t
i t s p u r p o s e
i s t o p u n i s h t h e
o w n e r s
o f
t a v e r n s
who
c o n t i n u e
t o
s e r v e
c u s t o m e r s
a f t e r
t h e y
have
become
i n t o x i c a t e d . " M c I s a a c v. Monte C a r l o C l u b , I n c . , 587
So.
2d
320, 324
( A l a . 1 9 9 1 ) .
B o t h s i d e s a c k n o w l e d g e
t h a t , i n o r d e r f o r J o h n s o n t o be
a b l e t o r e c o v e r u n d e r t h e Dram Shop A c t , she must be a " p e r s o n
who
[was] i n j u r e d i n p e r s o n , p r o p e r t y , o r means o f s u p p o r t " by
Oden's
i n t o x i c a t i o n .
However,
t h e
p a r t i e s
d i s a g r e e
as
t o
w h e t h e r t h e payment o f Oden's f u n e r a l e x p e n s e s c o n s t i t u t e d an
i n j u r y
t o
J o h n s o n ' s
p r o p e r t y
and
w h e t h e r
J o h n s o n ' s
m e n t a l
a n g u i s h c a u s e d by h e r s o n ' s d e a t h c o n s t i t u t e d an i n j u r y t o h e r
p e r s o n f o r p u r p o s e s o f t h e Dram Shop A c t .
These i s s u e s a p p e a r
t o
i n v o l v e q u e s t i o n s o f
f i r s t
i m p r e s s i o n f o r t h i s C o u r t .
I n
M c I s a a c ,
a
p a s s e n g e r
was
s e v e r e l y
i n j u r e d
i n
an
a u t o m o b i l e
a c c i d e n t ,
and
h i s m o t h e r
s u e d
a b a r
and
o t h e r s
u n d e r t h e Dram Shop A c t , a l l e g i n g t h a t t h e d e f e n d a n t s s o l d t h e
d r i v e r
o f t h e a u t o m o b i l e i n w h i c h h e r
s o n was
a
p a s s e n g e r
i n t o x i c a t i n g l i q u o r w h i l e he was a l r e a d y v i s i b l y
i n t o x i c a t e d .
The p a s s e n g e r , a 2 1 - y e a r - o l d a d u l t ,
t e s t i f i e d
t h a t he h a d n o t
8
1071128
l i v e d a t home f o r
some t i m e .
F u r t h e r m o r e , he s t a t e d t h a t he
was n o t a d e p e n d e n t b e c a u s e he h a d a j o b w i t h a
t e l e p h o n e
company a t t h e t i m e o f t h e a c c i d e n t .
T h i s C o u r t e x a m i n e d t h e
m o t h e r ' s c l a i m , as f o l l o w s :
"[The m o t h e r ] a l l e g e d i n t h e c o m p l a i n t t h a t she
e x p e n d e d v a r i o u s sums o f money on [ t h e
p a s s e n g e r ] as
a r e s u l t o f t h e d e f e n d a n t s ' a l l e g e d v i o l a t i o n o f
t h e
Dram Shop A c t ; h o w e v e r , t h e r e was no e v i d e n c e b e f o r e
t h e
t r i a l
c o u r t t o s u p p o r t
h e r a l l e g a t i o n .
Upon
f i l i n g
t h e i r
m o t i o n
f o r summary
j u d g m e n t ,
t h e
d e f e n d a n t s
p r o d u c e d
e v i d e n c e ,
t h r o u g h
d e p o s i t i o n
e x c e r p t s ,
t h a t
t h e r e
e x i s t e d no g e n u i n e
i s s u e o f
m a t e r i a l
f a c t
as
t o
[ t h e
m o t h e r ' s ]
c l a i m s .
S u b s e q u e n t l y , t h e b u r d e n
s h i f t e d t o [ t h e
m o t h e r ] t o
show, b y a d m i s s i b l e e v i d e n c e , a g e n u i n e
i s s u e o f
m a t e r i a l
f a c t .
B r i d g e w a y
C o m m u n i c a t i o n s ,
I n c . v .
T r i o B r o a d c a s t i n g , I n c . , 562 So. 2d 222 ( A l a . 1 9 9 0 ) .
"[The m o t h e r ] f a i l e d t o meet t h i s b u r d e n i n
t h e
t r i a l
c o u r t , and i t
i s
now t o o l a t e f o r
h e r t o p r o v e
h e r
a l l e g a t i o n s
b e f o r e
t h i s
C o u r t .
T h i s
C o u r t
c o n c l u d e s t h a t [ t h e m o t h e r ] p r e s e n t e d no s u b s t a n t i a l
e v i d e n c e
t h a t
she h a d b e e n
i n j u r e d
i n
' p e r s o n ,
p r o p e r t y , o r means o f s u p p o r t , ' as r e q u i r e d b y t h e
A c t . We a f f i r m t h e summary j u d g m e n t [ i n f a v o r o f
t h e
d e f e n d a n t s ] as t o [ t h e m o t h e r ] . "
587 So. 2d a t 325. The o p i n i o n does n o t e x p l a i n t h e s p e c i f i c
c i r c u m s t a n c e s s u r r o u n d i n g t h e
m o t h e r ' s a l l e g a t i o n t h a t she
h a d
e x p e n d e d v a r i o u s sums o f money on h e r s o n , and t h e r e i s no
i n d i c a t i o n
t h a t
t h i s
C o u r t was p r e s e n t e d w i t h o r c o n s i d e r e d
t h e s p e c i f i c
i s s u e w h e t h e r a m o t h e r ' s e x p e n d i n g money on h e r
a d u l t
s o n as a
r e s u l t
o f an
a l c o h o l - r e l a t e d
a c c i d e n t c a n
9
1071128
c o n s t i t u t e an i n j u r y t o p r o p e r t y u n d e r t h e
Dram Shop A c t a n d
t h u s g i v e t h e
m o t h e r a d i r e c t c a u s e o f a c t i o n u n d e r t h e
A c t .
T h i s C o u r t s i m p l y h e l d t h a t " t h e r e was no e v i d e n c e b e f o r e t h e
t r i a l c o u r t t o s u p p o r t
[ t h e m o t h e r ' s ] a l l e g a t i o n . " 587 So.
2d
a t 3 2 5 . T h e r e f o r e , M c I s a a c i s
n o t c o n t r o l l i n g i n
t h e p r e s e n t
c a s e .
C o u r t s i n o t h e r
j u r i s d i c t i o n s h a v e h e l d t h a t a p a r e n t ' s
payment o f f u n e r a l e x p e n s e s f o r a m i n o r c h i l d i s
an i n j u r y t o
t h e p a r e n t ' s p r o p e r t y u n d e r t h e
d r a m - s h o p a c t s i n
t h e i r s t a t e s
b e c a u s e t h e
p a r e n t was o b l i g a t e d t o
p a y
t h e f u n e r a l e x p e n s e s ,
and t h e
payment o f t h o s e e x p e n s e s i m p a i r e d t h e
p a r e n t ' s
t o t a l
a s s e t s . G l a e s e m a n n v . V i l l a g e o f
New B r i g h t o n , 268 M i n n . 4 3 2 ,
434-35, 130 N.W.2d 43, 44-45 (1964)
( c i t i n g H e r b e s v . V i l l a g e
o f H o l d i n g f o r d , 267 M i n n . 75, 85, 125 N.W.2d 426,
433 ( 1 9 6 3 ) ,
c i t i n g i n t u r n
I s z l e r v . J o r d a , 80 N.W.2d 665, 669 (N.D.
1 9 5 7 ) ) .
A l s o , i n
Ragan v . P r o t k o , 66
I l l . App. 3d 2 5 7 ,
383
N.E.2d 745, 22 I l l . Dec.
937 ( 1 9 7 8 ) , p a r e n t s o f a 2 1 - y e a r - o l d
son
k i l l e d i n a m o t o r - v e h i c l e
a c c i d e n t b r o u g h t a d r a m - s h o p
a c t i o n
a g a i n s t a t a v e r n
o p e r a t o r t o r e c o v e r f o r i n j u r y t o
t h e i r " p r o p e r t y " r e s u l t i n g f r o m t h e i r s o n ' s i n t o x i c a t i o n .
I n
h o l d i n g
t h a t t h e p a r e n t s
c o u l d n o t be
i n j u r e d
i n
t h e i r
10
1071128
" p r o p e r t y " w i t h i n t h e m e a n i n g o f t h e
I l l i n o i s Dram Shop A c t
by
v o l u n t a r i l y
p a y i n g
o r
a s s u m i n g
l i a b i l i t y
f o r
m e d i c a l
o r
f u n e r a l e x p e n s e s c a u s e d by t h e i n t o x i c a t i o n o f t h e i r s o n ,
t h e
A p p e l l a t e C o u r t o f I l l i n o i s
e x p l i c i t l y h e l d t h a t " i n o r d e r
f o r
a
p a r e n t
t o
r e c o v e r
f o r
h i s
c h i l d ' s
m e d i c a l
and
f u n e r a l
e x p e n s e s , he must be
l e g a l l y
l i a b l e
f o r t h e c h a r g e s , and
t h e
b a s i s
f o r s u c h
l i a b i l i t y must e x i s t
p r i o r
t o t h e
c r e a t i o n
o f
t h e
c h a r g e s
and
n o t
a r i s e due
t o
a v o l u n t a r y
a s s u m p t i o n
o f
f i n a n c i a l
r e s p o n s i b i l i t y
a f t e r t h e
f a c t . "
66
I l l . App.
3d
a t
261,
383 N.E.2d a t 748,
22
I l l . Dec.
a t
940.
S i m i l a r l y , t h e A p p e l l a t e D i v i s i o n o f t h e New
Y o r k Supreme
C o u r t has
h e l d
t h a t
" t h e
'Dram
Shop'
s t a t u t e s
do
n o t
a u t h o r i z e
any
r e c o v e r y by a b e n e f a c t o r
who makes w h o l l y
g r a t u i t o u s
p a y m e n t s
t o
t h e
h e a l t h
c a r e
p r o v i d e r s
who
f u r n i s h
m e d i c a l
s e r v i c e s t o a p e r s o n
i n j u r e d as
t h e
r e s u l t
o f
i n t o x i c a t i o n .
A
p e r s o n
m a k i n g
s u c h
g r a t u i t o u s
p a y m e n t s ,
as
o p p o s e d
t o ,
f o r e x a m p l e ,
l e n d i n g
t h e
money t o t h e
i n j u r e d p e r s o n ,
i n f l i c t s e c o n o m i c harm
upon h i m s e l f o r h e r s e l f , and c a n n o t be c o n s i d e r e d
as
h a v i n g b e e n i n j u r e d i n h i s o r h e r
' p e r s o n ,
p r o p e r t y ,
o r means o f
s u p p o r t . ' "
Dunphy v.
J & I S p o r t s
E n t e r s . ,
I n c . ,
297 A.D.2d 23,
2 5 - 2 6 ,
748
N.Y.S.2d
595,
598
(N.Y.
App.
D i v .
2 0 0 2 ) .
The
c o u r t
f u r t h e r
h e l d :
11
1071128
" T h e r e
i s no common-law
r i g h t o f
r e c o v e r y
i n
f a v o r
o f a p a r e n t who
p a y s t h e m e d i c a l e x p e n s e s
o f
an
a d u l t
c h i l d ,
e v e n when t h e
c h i l d
l i v e s
i n
t h e
p a r e n t ' s home.
I n
New
Y o r k ,
a
p a r e n t ' s
r i g h t
t o
r e c o v e r f o r m e d i c a l e x p e n s e s i n c u r r e d by a c h i l d i s
g r o u n d e d upon t h e p a r e n t ' s
o b l i g a t i o n t o s u p p o r t
a
m i n o r
c h i l d . "
Dunphy,
2
97 A.D.2d
a t
2
6,
748
N.Y.S.2d
a t
598
( c i t a t i o n s
o m i t t e d )
( d i s t i n g u i s h i n g Ray
v. G a l l o w a y ' s
C a f e ,
221 A.D.2d
612,
634
N.Y.S.2d
495
(N.Y.
App.
D i v .
1 9 9 5 ) ,
i n w h i c h
t h e
c o u r t
h e l d
t h a t
p a r e n t s
may
be
e n t i t l e d
t o
r e c o v e r
a c t u a l
damages f o r m e d i c a l e x p e n s e s u n d e r New
Y o r k ' s Dram Shop A c t ,
on t h e g r o u n d
t h a t t h e p a r e n t s o f t h e i n j u r e d c h i l d i n Ray
had
a l e g a l o b l i g a t i o n t o p a y
f o r h i s m e d i c a l
c a r e ) .
To
s u p p o r t
h e r
p o s i t i o n
t h a t
f u n e r a l
e x p e n s e s
f o r
an
a d u l t
c h i l d
s h o u l d
c o n s t i t u t e
an
i n j u r y
t o
t h e
p a r e n t ' s
p r o p e r t y u n d e r t h e Dram Shop A c t , J o h n s o n r e l i e s on
a p p a r e n t
d i c t a i n C l y m e r v. W e b s t e r , 156 V t . 614,
596 A.2d
905
( 1 9 9 1 ) ,
w h i c h
s t a t e d
t h a t
" [ a ] s i d e
f r o m
o u t - o f - p o c k e t
m e d i c a l
and
f u n e r a l
e x p e n s e s ,
[ t h e d e c e a s e d
a d u l t
c h i l d ' s ] p a r e n t s h a v e
n o t t h e m s e l v e s b e e n i n j u r e d ' i n p e r s o n , p r o p e r t y o r means o f
s u p p o r t ' w i t h i n t h e m e a n i n g o f t h e [Dram Shop A c t ] . " 156
V t .
a t 620,
596 A.2d
a t 909.
However, i n C l y m e r ,
i t a p p e a r s
t h a t
t h e t r i a l c o u r t ' s
r u l i n g " t h a t l i m i t e d t h e damages r e c o v e r a b l e
12
1071128
by
p l a i n t i f f s
' t o
m e d i c a l
and
f u n e r a l
e x p e n s e s
and
l o s t
s e r v i c e s and g u i d a n c e , ' "
s i m p l y was
n o t c h a l l e n g e d on
a p p e a l .
C l y m e r ,
156
V t .
a t
618 ,
596
A.2d
a t
90 8.
See
Thompson
v.
Dewey's S o u t h R o y a l t o n , I n c . , 169 V t . 274,
279,
733 A.2d
65,
69
(1999)
( s t a t i n g t h a t " [ a ] more a c c u r a t e r e a d i n g o f C l y m e r
r e v e a l s t h a t we s i m p l y d i d n o t a d d r e s s w h e t h e r t h e p a r e n t s
had
a d i r e c t c a u s e o f a c t i o n u n d e r t h e [Dram Shop A c t ] . G i v e n
t h e
f o c u s o f o u r o p i n i o n , t h e n , t h e more r e a s o n a b l e
i n f e r e n c e t o
be drawn f r o m C l y m e r i s t h a t t h e p a r e n t s were n o t i n j u r e d ' i n
p e r s o n ,
p r o p e r t y o r means o f s u p p o r t '
as
a
r e s u l t
o f
t h e i r
[ a d u l t
c h i l d ' s ]
d e a t h . " ) .
I n any
e v e n t ,
t o t h e e x t e n t
t h a t
C l y m e r
may
have
h e l d
t h a t
a p a r e n t ' s
payment
o f
an
a d u l t
c h i l d ' s
f u n e r a l
e x p e n s e s
i s
an
i n j u r y
t o
t h a t
p a r e n t ' s
p r o p e r t y u n d e r V e r m o n t ' s Dram Shop A c t , we
d e c l i n e t o
f o l l o w
t h a t h o l d i n g .
T h i s C o u r t now
a d o p t s
t h e r u l e t h a t a p a r e n t ' s v o l u n t a r y
payment
o f
an
a d u l t
c h i l d ' s
f u n e r a l
e x p e n s e s
d o e s
n o t
c o n s t i t u t e an
i n j u r y t o t h e p a r e n t ' s p r o p e r t y i n t h e
c o n t e x t
o f
t h e Dram Shop A c t .
I n t h e p r e s e n t
c a s e , J o h n s o n was
n o t
l e g a l l y
o b l i g a t e d t o p a y
Oden's
f u n e r a l
e x p e n s e s
u n t i l
she
v o l u n t a r i l y assumed t h a t
f i n a n c i a l
r e s p o n s i b i l i t y
a f t e r
h i s
13
1071128
d e a t h .
J o h n s o n ' s
a s s e t s were n o t i n v o l u n t a r y i m p a i r e d b y
Oden's i n t o x i c a t i o n .
T h e r e f o r e , she d i d
n o t s u f f e r an i n j u r y
t o h e r p r o p e r t y u n d e r t h e Dram Shop A c t .
A c c o r d i n g l y , t h e
t r i a l
c o u r t p r o p e r l y e n t e r e d a summary j u d g m e n t i n f a v o r o f
B r u n s w i c k as t o t h i s
c l a i m .
N e x t , as a q u e s t i o n o f f i r s t
i m p r e s s i o n f o r t h i s
C o u r t ,
J o h n s o n
a r g u e s
t h a t t h e m e n t a l
a n g u i s h
s h e s u f f e r e d as a
r e s u l t o f t h e l o s s o f h e r s o n c o n s t i t u t e d an i n j u r y t o
h e r
p e r s o n i n t h e c o n t e x t o f t h e Dram Shop A c t .
We
d i s a g r e e .
A l a b a m a ' s Dram Shop A c t c r e a t e d a new c a u s e o f a c t i o n
t h a t d i d
n o t e x i s t a t common l a w r e l a t i n g t o t h e c o n s e q u e n c e s
o f d i s p e n s i n g
i n t o x i c a t i n g
l i q u o r .
J o n e s v . BP O i l Co., 632
So. 2d 4 3 5 , 438 ( A l a . 1 9 9 3 ) .
As n o t e d
e a r l i e r ,
t h i s C o u r t h a s
h e l d t h a t A l a b a m a ' s Dram Shop A c t
i s
p e n a l i n
n a t u r e . M c I s a a c ,
587 So. 2d a t 324. We h a v e a l s o h e l d t h a t " [ i ] t i s a x i o m a t i c
t h a t p e n a l
s t a t u t e s a r e t o be s t r i c t l y
c o n s t r u e d i n f a v o r o f
t h e p e r s o n s s o u g h t t o be s u b j e c t e d t o t h e i r o p e r a t i o n . "
S t a t e
ex r e l . G r a d d i c k v . J e b s e n S. (U.K.) L t d . , 377 So. 2d 940,
942
( A l a .
1 9 7 9 ) .
F u r t h e r m o r e ,
" s t a t u t o r y r e m e d i e s f o r r i g h t s
unknown t o t h e common l a w a r e t o be
s t r i c t l y
c o n s t r u e d . "
14
1071128
W e s t e n h a v e r v. D u n n a v a n t , 225 A l a . 400,
401,
143
So.
823,
823
( 1 9 3 2 ) .
I n t h e
v a s t
m a j o r i t y o f
o t h e r
j u r i s d i c t i o n s , where
t h e
l e g i s l a t u r e
has
l i m i t e d
r e c o v e r y
u n d e r
a
s t a t e ' s d r a m - s h o p
a c t , by i t s t e r m s , t o i n j u r y " i n p e r s o n , p r o p e r t y , o r means o f
s u p p o r t , "
as
i s t h e
c a s e
i n A l a b a m a ,
t h e
r u l e
i s t h a t
no
r e c o v e r y
f o r m e n t a l a n g u i s h
i s a l l o w e d .
1
F o r e x a m p l e ,
c i t i n g
a u t h o r i t y
f r o m
o t h e r
j u r i s d i c t i o n s ,
t h e
U t a h Supreme
C o u r t
r e c o g n i z e d
t h a t m e n t a l a n g u i s h
s u f f e r e d by
t h e p a r e n t s
o f
a
c h i l d who
was
k i l l e d by a d r u n k d r i v e r was
n o t
an
" i n j u r y
i n
p e r s o n "
c o m p e n s a b l e u n d e r U t a h ' s Dram Shop A c t :
"The
r u l e t h a t
' i n j u r i e s i n p e r s o n ' means ' p h y s i c a l
b o d i l y
i n j u r i e s '
and
n o t
m e n t a l
o r
e m o t i o n a l
i n j u r i e s
i s w i d e l y r e c o g n i z e d .
See
K n i e r i m v.
I z z o ,
22
I l l .
2d
73,
174 N.E.2d 157,
161
(1961)
( h o l d i n g
t h a t
m e n t a l
s u f f e r i n g
r e s u l t i n g
i n
no
p h y s i c a l
i n j u r y i s n o t an
i n j u r y i n p e r s o n and
t h e r e f o r e
n o t
r e c o v e r a b l e u n d e r Dramshop A c t i n a c t i o n b r o u g h t
by
w i f e
f o l l o w i n g
d e a t h
o f
h u s b a n d ) ;
R o b e r t s o n
v.
W h i t e ,
11
I l l .
App.
2d
177 , 136
N.E.2d
550,
554
(1956)
( h o l d i n g t h a t
e m o t i o n a l
p a i n
and
s u f f e r i n g
a r e
n o t
c o m p e n s a b l e
i n j u r i e s
u n d e r Dramshop A c t ) ;
S t a t e Farm Mut.
A u t o .
I n s .
Co.
v.
I s l e ,
265
M i n n .
360 , 122
N.W.2d
36,
41
(1963)
( s t a t i n g
w i f e
n o t
1On
t h e o t h e r h a n d , i n j u r i s d i c t i o n s where t h e d r a m - s h o p
a c t
i s w o r d e d
so
as
t o
a l l o w
r e c o v e r y
f o r
an
i n j u r y
" i n
p e r s o n , p r o p e r t y , means o f s u p p o r t , o r o t h e r w i s e , " damages f o r
m e n t a l a n g u i s h
may
be
r e c o v e r e d .
See,
e.g.,
W i n j e v.
C a v a l r y
V e t e r a n s
o f S y r a c u s e ,
I n c . , 130 M i s c . 2d 580,
497 N.Y.S.2d
291
(N.Y.
Sup.
C t .
1 9 8 5 ) .
15
1071128
e n t i t l e d
t o
damages
f o r
i n j u r y
t o
p e r s o n
u n d e r
Dramshop A c t b a s e d on h e r m e n t a l s u f f e r i n g where she
d i d
n o t s u s t a i n a c c o m p a n y i n g
p h y s i c a l i n j u r y ) ;
L y o n s
v.
T i e d e m a n n ,
135
A.D.2d
509,
522
N.Y.S.2d
159,
160-61 (1987)
( s t a t i n g
p l a i n t i f f s
c o u l d n o t r e c o v e r
f o r
c o n s c i o u s p a i n and
s u f f e r i n g and w r o n g f u l d e a t h
u n d e r Dramshop A c t ) . See g e n e r a l l y G e o r g e A.
L o c k e ,
A n n o t a t i o n , R e c o v e r y U n d e r C i v i l Damage (Dram-Shop)
A c t
f o r
I n t a n g i b l e s
s u c h
as
M e n t a l
A n g u i s h ,
E m b a r r a s s m e n t , L o s s o f A f f e c t i o n
o r
C o m p a n i o n s h i p ,
o r
t h e
L i k e ,
78 A . L . R . 3 d
1199
( 1 9 7 7 ) ; A n n o t a t i o n ,
What
C o n s t i t u t e s
' I n j u r y
i n
P e r s o n
o r
P r o p e r t y '
W i t h i n
C i v i l Damage o r Dramshop A c t , 6 A . L . R . 2 d
798
(19
4
9 ) . "
A d k i n s v. U n c l e B a r t ' s , I n c . , 1 P.3d
528,
534
( U t a h
2 0 0 0 ) .
I n
t h e p r e s e n t c a s e ,
t h i s
C o u r t must
s t r i c t l y
c o n s t r u e
t h e
l a n g u a g e
o f A l a b a m a ' s Dram Shop A c t and n o t e n l a r g e i t s
l e g i s l a t i v e l y
c r e a t e d r e m e d i e s b e y o n d t h o s e t h e
l e g i s l a t u r e
has
a l l o w e d .
A c c o r d i n g l y ,
we
a d o p t
t h e
w i d e l y
a c c e p t e d
g e n e r a l
r u l e
t h a t
m e n t a l
a n g u i s h
d o e s
n o t
c o n s t i t u t e
an
" i n j u r y i n p e r s o n " i n t h e c o n t e x t o f t h e Dram Shop A c t .
To
h o l d o t h e r w i s e w o u l d u s u r p t h e f u n c t i o n o f t h e l e g i s l a t u r e
and
i g n o r e t h e w e l l e s t a b l i s h e d p r i n c i p l e o f
s t r i c t l y
c o n s t r u i n g
s t a t u t e s t h a t a r e p e n a l i n c h a r a c t e r i n f a v o r o f t h e
p e r s o n s
s o u g h t t o be s u b j e c t e d t o t h e i r o p e r a t i o n .
F u r t h e r m o r e , we
do
n o t n e e d t o d e c i d e a t t h i s t i m e w h e t h e r
an e x c e p t i o n t o
t h i s
g e n e r a l r u l e e x i s t s when t h e p a r t y s e e k i n g damages f o r m e n t a l
a n g u i s h a l s o s u f f e r s a p h y s i c a l b o d i l y i n j u r y b e c a u s e
J o h n s o n
16
1071128
has
n o t
a l l e g e d
a n y
s u c h
i n j u r y
i n t h e
p r e s e n t
c a s e .
T h e r e f o r e ,
t h e m e n t a l a n g u i s h J o h n s o n
a l l e g e s
r e s u l t e d
f r o m
t h e
l o s s o f h e r s o n d o e s n o t c o n s t i t u t e an
i n j u r y
t o h e r
p e r s o n i n t h e c o n t e x t
o f t h e Dram Shop A c t ; t h u s , t h e
t r i a l
c o u r t
p r o p e r l y
e n t e r e d
a
summary
j u d g m e n t
i n
f a v o r
o f
B r u n s w i c k on t h i s
c l a i m .
F i n a l l y ,
J o h n s o n
a l l e g e s
t h a t t h e t r i a l
c o u r t
e r r e d i n
e n t e r i n g a summary j u d g m e n t i n f a v o r o f B r u n s w i c k on h e r c l a i m
a l l e g i n g t h e n e g l i g e n t h i r i n g , t r a i n i n g , a n d / o r s u p e r v i s i o n o f
e m p l o y e e s .
B r u n s w i c k r e s p o n d s t h a t t h e summary j u d g m e n t was
a p p r o p r i a t e
b e c a u s e , i t
s a y s , J o h n s o n ' s c l a i m i s i n r e a l i t y a
c l a i m
a l l e g i n g t h e n e g l i g e n t
d i s p e n s i n g
o f a l c o h o l , a
c l a i m
A l a b a m a does n o t r e c o g n i z e .
J o h n s o n r e p l i e s t h a t h e r c l a i m i s
n o t
a c l a i m
b a s e d on t h e n e g l i g e n t
d i s p e n s i n g
o f a l c o h o l .
I n s t e a d ,
J o h n s o n a l l e g e s t h a t
" [ t ] h e n e g l i g e n t
c o n d u c t w h i c h
[she]
a l l e g e s
i s [ B r u n s w i c k ' s ]
c o n d u c t
i n
h i r i n g / t r a i n i n g
a n d / o r s u p e r v i s i n g i t s e m p l o y e e s i n c a r r y i n g o u t d u t i e s w h i c h
a r e
r e q u i r e d
b y
s t a t u t e
and i m p o s e d by t h e many
w r i t t e n
p o l i c i e s w h i c h [ B r u n s w i c k ' s ] e m p l o y e e s i g n o r e d i n t h e p r e s e n t
c a s e . " J o h n s o n ' s b r i e f , a t 24.
17
1071128
I t i s w e l l e s t a b l i s h e d t h a t "Alabama does n o t r e c o g n i z e
a common l a w c a u s e o f a c t i o n f o r
n e g l i g e n c e i n
t h e dram
shop
c o n t e x t . " J a c k s o n v . A z a l e a C i t y R a c i n g C l u b , I n c . , 553 So.
2d
112, 113 ( A l a . 1 9 8 9 ) .
" [ T ] h i s j u r i s d i c t i o n ,
l i k e t h e m a j o r i t y
o f
j u r i s d i c t i o n s i n o u r n a t i o n , does n o t r e c o g n i z e a common
l a w
c a u s e
o f a c t i o n
f o r n e g l i g e n c e i n t h e d i s p e n s i n g o f
a l c o h o l . " Ward v . R h o d e s , Hammonds & B e c k ,
I n c . , 511 So. 2d
159,
164-65
( A l a . 1 9 8 7 ) .
The Dram Shop A c t p r o v i d e s t h e
e x c l u s i v e remedy f o r t h e u n l a w f u l d i s p e n s i n g o f a l c o h o l t o
an
a d u l t . W i l l i a m s v . R e a s o n e r , 668 So. 2d 5 4 1 ,
542 ( A l a . 1 9 9 5 ) .
T h i s
l o n g - s t a n d i n g
r e f u s a l t o r e c o g n i z e an a c t i o n b a s e d on
n e g l i g e n c e i n
t h e d i s t r i b u t i o n o f a l c o h o l a p p e a r s t o
be b a s e d ,
a t
l e a s t i n
p a r t , on t h e p r i n c i p l e t h a t
" i t i s
t h e c o n s u m p t i o n
o f
a l c o h o l -- n o t t h e p u r c h a s e o f i t -- t h a t i s
t h e p r o x i m a t e
c a u s e
o f
i n j u r i e s
r e s u l t i n g
f r o m
t h e
p u r c h a s e r ' s
i n t o x i c a t i o n . " J o n e s , 632 So. 2d a t 438. Of c o u r s e , as w i t h
o t h e r n e g l i g e n c e - b a s e d c l a i m s , a p l a i n t i f f p u r s u i n g a c l a i m o f
n e g l i g e n t
h i r i n g ,
t r a i n i n g ,
a n d / o r
s u p e r v i s i o n o f e m p l o y e e s
must
e s t a b l i s h
t h a t
t h e e m p l o y e e s '
i n c o m p e t e n c y
was t h e
p r o x i m a t e
c a u s e
o f t h e a l l e g e d
i n j u r y .
See H a t h c o c k
v .
M i t c h e l l ,
277 A l a .
58
6,
5 9 5 , 173 So. 2d 57
6,
584
(1965)
18
1071128
( h o l d i n g
t h a t
" t h e m a s t e r i s n o t
l i a b l e
f o r h a v i n g
e m p l o y e d
i n c o m p e t e n t
s e r v a n t s
u n l e s s
t h e i r
i n c o m p e t e n c y
was
t h e
p r o x i m a t e c a u s e o f t h e
i n j u r y " ) .
I n t h e
p r e s e n t
c a s e , J o h n s o n r e c o g n i z e s
t h a t
she
c a n n o t
p u r s u e a c l a i m o f n e g l i g e n t d i s p e n s i n g
o f a l c o h o l o u t s i d e
t h e
Dram
Shop
A c t .
I n s t e a d ,
she
a l l e g e s
t h a t
h e r
c l a i m
i s
" c l e a r l y "
n o t
a c l a i m
a l l e g i n g t h e
n e g l i g e n t
d i s p e n s i n g
o f
a l c o h o l . J o h n s o n ' s b r i e f ,
a t 23.
However, t h e m e r i t
o f
s u c h
an a l l e g a t i o n i s u n t e n a b l e .
C o n c e r n i n g t h i s c l a i m , J o h n s o n ' s
c o m p l a i n t
a l l e g e s t h a t B r u n s w i c k n e g l i g e n t l y h i r e d , t r a i n e d ,
a n d / o r
s u p e r v i s e d
i t s e m p l o y e e s
" r e g a r d i n g
s e r v i n g
v i s i b l y
i n t o x i c a t e d
p a t r o n s
w i t h
a l c o h o l i c b e v e r a g e s . "
Such
an
a l l e g a t i o n
s e e k s
a remedy
d i r e c t l y
r e l a t e d
t o
t h e
a l l e g e d
u n l a w f u l
d i s p e n s i n g
o f
a l c o h o l ,
and
i t a t t e m p t s
t o
do
so
o u t s i d e t h e Dram Shop A c t , w h i c h t h i s C o u r t ' s p r i o r
d e c i s i o n s
do
n o t
a l l o w .
F u r t h e r m o r e ,
J o h n s o n
has
f a i l e d
t o
p r e s e n t
s u b s t a n t i a l
e v i d e n c e
i n d i c a t i n g t h a t
t h e p r o x i m a t e c a u s e
o f
h e r
a l l e g e d i n j u r y was
an a c t c o m m i t t e d by B r u n s w i c k t h a t i s
o u t s i d e t h e s c o p e o f t h e Dram Shop A c t ,
r a t h e r t h a n h e r
s o n ' s
a c t s
o f c o n s u m i n g
a l c o h o l
and
s u b s e q u e n t l y
d r i v i n g a m o t o r
v e h i c l e .
T h e r e f o r e ,
t h e
t r i a l
c o u r t
p r o p e r l y
e n t e r e d
a
19
1071128
summary j u d g m e n t i n f a v o r
o f B r u n s w i c k
on J o h n s o n ' s
c l a i m
a l l e g i n g t h e n e g l i g e n t
h i r i n g , t r a i n i n g , a n d / o r s u p e r v i s i o n o f
e m p l o y e e s .
C o n c l u s i o n
B a s e d on t h e f o r e g o i n g ,
t h i s
C o u r t
a f f i r m s t h e summary
j u d g m e n t i n f a v o r o f B r u n s w i c k .
AFFIRMED.
Cobb, C . J . , and L y o n s ,
W o o d a l l ,
S t u a r t ,
S m i t h ,
B o l i n ,
P a r k e r , M u r d o c k , and Shaw, J J . , c o n c u r .
20 | December 4, 2009 |
51a6d106-a8ea-45a3-b0a8-25627fef47bb | Perdido Place Condominium Owners Association, Inc. v. Bella Luna Condominium Owners Association, Inc. | N/A | 1080226 | Alabama | Alabama Supreme Court | REL: 12/04/2009
Notice: T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e
advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e
Reporter of
Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741 ((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may
be
made b e f o r e
t h e o p i n i o n i s
p r i n t e d i n
Southern
Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1080226
Perdido P l a c e Condominium Owners A s s o c i a t i o n ,
Inc.
v.
B e l l a Luna Condominium Owners A s s o c i a t i o n ,
Inc.
Appeal from Baldwin
C i r c u i t
Court
(CV-07-900663)
STUART,
J u s t i c e .
The B e l l a L u n a C o n d o m i n i u m Owners A s s o c i a t i o n , I n c . ("the
BLCOA"),
f i l e d an a c t i o n i n
t h e B a l d w i n
C i r c u i t C o u r t
s e e k i n g
a j u d g m e n t d e c l a r i n g a b e a c h - a c c e s s e a s e m e n t t o
be v a l i d a n d
e n f o r c e a b l e a n d
e n j o i n i n g t h e
P e r d i d o P l a c e C o n d o m i n i u m Owners
1080226
A s s o c i a t i o n ,
I n c . ("the PPCOA"),
f r o m
o b s t r u c t i n g
t h a t
e a s e m e n t .
The PPCOA f i l e d a c o u n t e r c l a i m s e e k i n g a j u d g m e n t
d e c l a r i n g t h e e a s e m e n t
v o i d .
F o l l o w i n g a b e n c h
t r i a l , t h e
t r i a l c o u r t e n t e r e d a j u d g m e n t i n f a v o r o f t h e
BLCOA a n d h e l d
t h e e a s e m e n t
v a l i d ,
t h o u g h s u b j e c t t o c e r t a i n
r e s t r i c t i o n s .
The PPCOA a p p e a l s .
We
a f f i r m .
I .
I n M a r c h 1999,
D a v i d Cummans a n d James L. Brown c o n v e y e d
c e r t a i n g u l f - f r o n t p r o p e r t y t h a t t h e y owned i n
Orange B e a c h t o
P e r d i d o
P l a c e , L L C , a l i m i t e d - l i a b i l i t y
company o p e r a t e d b y
Cummans.
P e r d i d o
P l a c e ,
L L C , t h e r e a f t e r
d e v e l o p e d
t h e
p r o p e r t y i n t o t h e
4 4 - u n i t c o n d o m i n i u m c o m p l e x known as P e r d i d o
P l a c e , w h i c h
o f f i c i a l l y became a c o n d o m i n i u m on O c t o b e r 19,
2000, p u r s u a n t t o t h e A l a b a m a U n i f o r m
C o n d o m i n i u m A c t , § 35-
8A-101 e t s e q . , A l a . Code 1 9 7 5 . The u n i t s a t P e r d i d o
P l a c e
a r e
r e s t r i c t e d t o u s e b y t h e o w n e r s ; t h e y c a n n o t be r e n t e d .
P e r d i d o
P l a c e i s
managed b y t h e PPCOA.
A t t h e t i m e P e r d i d o P l a c e was b e i n g p l a n n e d , Cummans a l s o
owned a o n e - a c r e l o t
i m m e d i a t e l y
n o r t h o f t h e P e r d i d o
P l a c e
p r o p e r t y on t h e o p p o s i t e
s i d e o f H i g h w a y 182.
On A p r i l 2,
1999,
Cummans
c o n v e y e d
t h a t
l o t t o P&C
P r o p e r t i e s , LLC
2
1080226
("P&C").
T h a t same d a y ,
P&C a l s o p u r c h a s e d f r o m F u d p u c k e r s o f
Orange B e a c h , I n c . , 2.5 a c r e s o f p r o p e r t y i m m e d i a t e l y a d j a c e n t
t o t h e 1 - a c r e l o t p u r c h a s e d f r o m Cummans.
A l s o t h a t same d a y ,
P e r d i d o P l a c e , L L C , c o n v e y e d t o P&C a p e d e s t r i a n b e a c h - a c c e s s
e a s e m e n t
f i v e
f e e t w i d e
a c r o s s t h e e a s t e r n b o u n d a r y o f t h e
P e r d i d o
P l a c e
p r o p e r t y .
The d e e d
c o n v e y i n g
t h a t
e a s e m e n t
s t a t e d
t h a t
i t was
a p p u r t e n a n t
t o t h e o n e - a c r e
l o t P&C
p u r c h a s e d f r o m Cummans t h a t same d a y .
I n A p r i l 2002, P&C c r e a t e d a t w o - l o t s u b d i v i s i o n known as
L e g a c y S u r f on t h e p r o p e r t y i t h a d p u r c h a s e d f r o m Cummans a n d
F u d p u c k e r s i n A p r i l 1999.
B e c a u s e o f t h e way t h e l o t s
were
d i v i d e d , e a c h l o t i n c l u d e d p o r t i o n s o f t h e p r o p e r t y p u r c h a s e d
f r o m Cummans.
P&C t h e r e a f t e r c o n v e y e d one o f t h e l o t s t o
L e g a c y Towers P a r t n e r s h i p a n d c o n v e y e d t h e o t h e r l o t
t o G u l f
C o a s t
S u r f , I n c .
L e g a c y
Towers a n d G u l f
C o a s t
S u r f
e a c h
s u b s e q u e n t l y c o n v e y e d
t h e i r
l o t s t o TMG, L L C , w h i c h , on A p r i l
28, 2004, c o n v e y e d b o t h
l o t s t o B e l l a
L u n a , L L C . The d e e d s
r e c o r d i n g e a c h o f t h e above t r a n s a c t i o n s p u r p o r t e d t o c o n v e y
n o t o n l y t h e p r o p e r t y , b u t a l s o t h e e a s e m e n t o v e r t h e P e r d i d o
P l a c e p r o p e r t y .
H o w e v e r , B e l l a L u n a , L L C ,
was n o t i f i e d b y an
a t t o r n e y b e f o r e i t
o b t a i n e d t h e l o t s f r o m TMG, L L C , t h a t t h e r e
3
1080226
was a p o t e n t i a l p r o b l e m w i t h t h e e a s e m e n t .
S p e c i f i c a l l y , t h e
a t t o r n e y
a d v i s e d
B e l l a L u n a , L L C , i n a l e t t e r t o amend t h e
o f f e r i n g
s t a t e m e n t
i t p r o p o s e d
t o
g i v e
p u r c h a s e r s
o f
c o n d o m i n i u m s i n t h e d e v e l o p m e n t i t p l a n n e d f o r
t h e p r o p e r t y t o
a c k n o w l e d g e t h a t p o t e n t i a l p r o b l e m :
"As we h a d d i s c u s s e d i n o u r c o n f e r e n c e
w i t h G u l f
S h o r e s
T i t l e ,
t h e p e d e s t r i a n
e a s e m e n t f o r i n g r e s s
and e g r e s s as d e s c r i b e d i n t h e d e e d s c o n v e y i n g
t i t l e
t o TMG, LLC
( p r e d e c e s s o r
t o B e l l a L u n a , LLC) [ w a s ]
a p p u r t e n a n t t o o n l y 100 f e e t o f y o u r 3 5 0 - f o o t p a r c e l
o f p r o p e r t y .
T h i s c r e a t e s a p o t e n t i a l p r o b l e m
w i t h
r e g a r d
t o t h e
a v a i l a b i l i t y
o f
a c c e s s
o v e r
t h e
d e s c r i b e d
5 - f o o t
p a r c e l .
"The i s s u e w h i c h may be r a i s e d i s one o f ' o v e r ¬
b u r d e n i n g
o f u s e . '
E a c h
owner o f t h e
p r o p o s e d
c o n d o m i n i u m u n i t s w i l l h a v e an u n d i v i d e d
i n t e r e s t i n
t h e p r o p e r t y
a p p u r t e n a n t t o t h e e a s e m e n t .
You and
y o u r
s u c c e s s o r s
h o w e v e r ,
may
n o t
i n c r e a s e
t h e
s e r v i t u d e
i m p o s e d on t h e p r o p e r t y
o v e r
w h i c h t h e
e a s e m e n t may r u n . The q u e s t i o n a r i s e s as t o w h e t h e r
o r n o t t h e i n c r e a s e i n t h e number o f p e r s o n s
u s i n g
an
u n l i m i t e d
r i g h t o f way e a s e m e n t i s an
u n l a w f u l
a d d i t i o n a l
b u r d e n
on
t h e
s e r v i e n t
e s t a t e .
The
a n s w e r
t o
t h i s
q u e s t i o n
w o u l d
n e e d
t o
be
[ a d d r e s s e d ] ,
i f
t h e q u e s t i o n
e v e r
a r o s e , b y l o o k i n g
a t
t h e
f a c t o r s
w h i c h
w o u l d
come
i n t o
p l a y
t o
d e t e r m i n e
w h e t h e r
t h e u s e w o u l d be deemed
t o be
r e a s o n a b l e
and p r o p e r u s e , w i t h c i r c u m s t a n c e s
t o be
c o n s i d e r e d
i n c l u d i n g : l o c a l
s i t u a t i o n s , t h e
n a t u r e
and
c o n d i t i o n o f t h e p r e m i s e s o v e r w h i c h t h e way i s
g r a n t e d ; t h e manner i n w h i c h i t i s u s e d ; and t h e
p u r p o s e w h i c h t h e p a r t i e s h a d i n due [ s i c ] a t t h e
t i m e t h e e a s e m e n t was
c r e a t e d .
" I am n o t s t a t i n g i n t h i s
l e t t e r
t h a t t h e r e i s
no
e a s e m e n t ,
I
am
j u s t
b r i n g i n g
t h i s
t o
y o u r
4
1080226
a t t e n t i o n and w o u l d recommend t h a t a l l
o f t h i s be
b r o u g h t t o t h e a t t e n t i o n o f e a c h o f y o u r
p o t e n t i a l
p u r c h a s e r s .
They
c a n e a c h
t h e n
g e t
t h e i r
own
i n d e p e n d e n t
o p i n i o n
f r o m
t h e i r
a t t o r n e y ,
i f t h e y
h a v e any s p e c i f i c
c o n c e r n s . "
On J u l y 2 1 , 2006, B e l l a L u n a , L L C , f i l e d a d e c l a r a t i o n o f
c o n d o m i n i u m f o r
t h e p r o p e r t y , a n d , i n
M a r c h 2007, i t
c o m p l e t e d
c o n s t r u c t i o n o f a 1 2 8 - u n i t d e v e l o p m e n t known as B e l l a
L u n a .
The
t o w e r
i t s e l f
i s p a r t i a l l y
l o c a t e d on t h e l o t f o r m e r l y
owned by Cummans, as a r e c e r t a i n common a r e a s o f t h e c o m p l e x .
E a c h p u r c h a s e r o f a c o n d o m i n i u m i n B e l l a Luna was r e q u i r e d t o
a c k n o w l e d g e i n w r i t i n g
t h a t t h e l e g a l
s t a t u s o f t h e e a s e m e n t
a c r o s s P e r d i d o P l a c e was unknown.
B e l l a Luna i s managed b y
t h e
BLCOA, a n d a p p r o x i m a t e l y 30 o f t h e u n i t s a r e p a r t o f a
r e n t a l
p r o g r a m .
I n 2006, w h i l e
B e l l a Luna was
s t i l l u n d e r
c o n s t r u c t i o n ,
t h e
PPCOA
i n s t a l l e d
a
f e n c e
a l o n g
t h e p e r i m e t e r
o f t h e
P e r d i d o
P l a c e p r o p e r t y ,
e f f e c t i v e l y
b l o c k i n g any u s e o f t h e
e a s e m e n t i n q u e s t i o n .
S h o r t l y a f t e r
B e l l a Luna was c o m p l e t e d
i n M a r c h 2007, t h e members o f t h e BLCOA b o a r d r e a l i z e d
t h a t
t h e
e a s e m e n t h a d b e e n p e r m a n e n t l y b l o c k e d .
The BLCOA
t h e n
c o n t a c t e d
t h e PPCOA i n an a t t e m p t t o open
a c c e s s
t o t h e
e a s e m e n t ; h o w e v e r , a f t e r e x p r e s s i n g c o n c e r n a b o u t r e n t e r s f r o m
5
1080226
B e l l a
Luna
u s i n g
t h e
e a s e m e n t
and
t h e
p o s s i b i l i t y
o f
o v e r b u r d e n i n g
t h e b e a c h i n f r o n t o f P e r d i d o
P l a c e , t h e PPCOA
d e c l i n e d
t o
remove
t h e
f e n c e .
A c c o r d i n g l y ,
t h e BLCOA
i n s t i t u t e d
t h i s a c t i o n i n t h e B a l d w i n
C i r c u i t C o u r t on A u g u s t
28,
2 0 0 7 .
1
A t w o - d a y b e n c h t r i a l was h e l d i n J u n e 2 0 0 8 .
On A u g u s t
14, 2008, t h e t r i a l
c o u r t
e n t e r e d t h e f o l l o w i n g j u d g m e n t i n
f a v o r o f t h e BLCOA:
"The
c o u r t
h a v i n g
t r i e d
t h i s c a s e J u n e 26 and
J u n e
30,
2008,
and
h a v i n g
c o n s i d e r e d
t h e
o r a l
t e s t i m o n y
and o t h e r
e v i d e n c e
p r e s e n t e d
a s w e l l a s
t h e p a r t i e s ' a r g u m e n t s , t h e c o u r t f i n d s i n f a v o r o f
[ t h e
B L C O A ] and a g a i n s t
[ t h e P P C O A ] .
The
c o u r t
f i n d s
t h a t
no
o v e r b u r d e n i n g
o f t h e e a s e m e n t
h a s
o c c u r r e d , a s t h e r e h a s b e e n no s i g n i f i c a n t c h a n g e i n
use
o f t h e e a s e m e n t
f r o m t h a t
c o n t e m p l a t e d b y t h e
p a r t i e s ( i n c l u d i n g t h e owner o f t h e s e r v i e n t
e s t a t e )
a t t h e t i m e t h e e a s e m e n t was c r e a t e d .
The p a r t i e s
a t
t h a t
t i m e
c o n t e m p l a t e d
t h a t t h e e a s e m e n t w o u l d
b e n e f i t
a c o n d o m i n i u m
c o n s t r u c t e d
on b o t h o f t h e
p a r c e l s o f p r o p e r t y on w h i c h B e l l a Luna C o n d o m i n i u m
i s now l o c a t e d .
I n a d d i t i o n , t h e c o u r t h a s b a l a n c e d
t h e
e q u i t i e s and
a p p l i e d
t h e
c o m p a r a t i v e - i n j u r y
d o c t r i n e and f i n d s t h a t e v e n i f
some
o v e r b u r d e n i n g
1 I n
o r d e r t o s e c u r e
b e a c h a c c e s s
w h i l e
t h i s a c t i o n was
p e n d i n g , t h e BLCOA e n t e r e d
i n t o an a g r e e m e n t w i t h t h e G r a n d
K e y R i v e r s i d e , a b e a c h f r o n t
d e v e l o p m e n t on t h e s o u t h
s i d e o f
H i g h w a y
182 a p p r o x i m a t e l y
50-75
y a r d s
e a s t
o f B e l l a
L u n a .
P u r s u a n t t o t h a t a g r e e m e n t , t h e BLCOA a g r e e d t o p a y G r a n d K e y
R i v e r s i d e a p p r o x i m a t e l y $2,000 a month and t o a l l o w G r a n d K e y
R i v e r s i d e o w n e r s t o u s e t h e a m e n i t i e s a t B e l l a Luna i n r e t u r n
f o r
p e r m i s s i o n
t o t r a v e r s e G r a n d K e y R i v e r s i d e p r o p e r t y t o
a c c e s s t h e b e a c h .
6
1080226
had
o c c u r r e d
( w h i c h ,
a g a i n , t h e c o u r t
f i n d s i t
h a s
n o t ) ,
t h e c o u r t s h o u l d n o n e t h e l e s s
a l l o w [ t h e B L C O A ]
t o
u s e t h e e a s e m e n t .
The
c o u r t
f u r t h e r
f i n d s ,
h o w e v e r , t h a t c e r t a i n
r e s t r i c t i o n s on [ t h e
B L C O A ' s ]
use
o f t h e e a s e m e n t
a r e a p p r o p r i a t e
and
w i l l
be
i m p o s e d .
" A c c o r d i n g l y , t h e c o u r t h e r e b y e n t e r s j u d g m e n t
i n
f a v o r o f [ t h e B L C O A ] and a g a i n s t [ t h e P P C O A ] .
The
c o u r t ORDERS, ADJUDGES, and DECREES
t h a t t h e
[ B L C O A ]
b e a c h - a c c e s s
e a s e m e n t
i s
v a l i d
and
e n f o r c e a b l e ; t h a t [ t h e
B L C O A ] i s e n t i t l e d t o u s e o f
t h e
e a s e m e n t ;
t h a t [ t h e P P C O A ] i s e n j o i n e d
f r o m
o b s t r u c t i n g
t h e
e a s e m e n t
and
i s
o r d e r e d
t o
i m m e d i a t e l y
remove
i t s o b s t r u c t i o n s ;
t h a t [ t h e
B L C O A ' s ] u s e o f t h e e a s e m e n t
s h a l l be
l i m i t e d t o
owners
( a s
o p p o s e d
t o
r e n t e r s )
o f
B e l l a
Luna
c o n d o m i n i u m
u n i t s and g u e s t s
o f
B e l l a
Luna
u n i t
o w n e r s ; and t h a t [ t h e B L C O A ] s h a l l be
r e s p o n s i b l e
f o r
m a i n t e n a n c e
o f
t h e
e a s e m e n t ,
s p e c i f i c a l l y ,
k e e p i n g
t h e e a s e m e n t
c l e a r o f w a s t e o r d e b r i s and
m a i n t a i n i n g any e x i s t i n g o r f u t u r e p a t h , w a l k w a y , o r
b o a r d w a l k l o c a t e d on t h e e a s e m e n t . "
The PPCOA s u b s e q u e n t l y moved t h e t r i a l
c o u r t t o a l t e r , amend,
o r v a c a t e
i t s
j u d g m e n t o r , i n t h e a l t e r n a t i v e , t o g r a n t i t
a
new
t r i a l ; h o w e v e r , t h e t r i a l
c o u r t
d e n i e d
t h a t m o t i o n on
O c t o b e r 2 1 , 2008.
On November 10, 2008, t h e PPCOA
f i l e d i t s
n o t i c e o f a p p e a l t o t h i s
C o u r t .
2
I I .
T h i s c a s e was d e c i d e d b y t h e t r i a l
c o u r t w i t h o u t a j u r y .
2 T h e BLCOA h a s n o t f i l e d a c r o s s - a p p e a l , and i t
does n o t
o t h e r w i s e
c h a l l e n g e t h e r e s t r i c t i o n s t h e t r i a l
c o u r t
p l a c e d
upon i t s
u s e o f t h e e a s e m e n t .
7
1080226
"'Where e v i d e n c e i s p r e s e n t e d
t o t h e
t r i a l c o u r t
o r e
t e n u s ,
a p r e s u m p t i o n o f c o r r e c t n e s s e x i s t s as t o
t h e
c o u r t ' s
c o n c l u s i o n s
on
i s s u e s
o f
f a c t ;
i t s
d e t e r m i n a t i o n
w i l l
n o t
be
d i s t u r b e d
u n l e s s
i t i s
c l e a r l y
e r r o n e o u s ,
w i t h o u t
s u p p o r t i n g
e v i d e n c e ,
m a n i f e s t l y
u n j u s t ,
o r
a g a i n s t
t h e
g r e a t
w e i g h t
o f
t h e
e v i d e n c e . ' "
P o l l a r d
v. Unus P r o p s . ,
LLC,
902
So.
2d
18,
23
( A l a . 2004
)
( q u o t i n g A m e r i c a n P e t r o l e u m E q u i p .
& C o n s t r . ,
I n c . v. F a n c h e r ,
708
So. 2d 129,
132
( A l a . 1 9 9 7 ) ) .
H o w e v e r , " [ t ] h e p r e s u m p t i o n
o f c o r r e c t n e s s a c c o r d e d a
t r i a l
c o u r t ' s j u d g m e n t f o l l o w i n g
a
b e n c h
t r i a l
where e v i d e n c e
i s p r e s e n t e d
o r e
t e n u s d o e s
n o t
e x t e n d t o i t s d e c i s i o n s on q u e s t i o n s
o f l a w . "
Bon
A v e n t u r e ,
L.L.C. v. C r a i g Dyas L.L.C., 3 So.
3d 859,
862
( A l a . 2 0 0 8 ) .
I I I .
The PPCOA's a r g u m e n t on
a p p e a l
i s b a s e d a l m o s t
e n t i r e l y
on
a
s t a t e m e n t
t h i s
C o u r t
made
i n Weeks
v.
W o l f
C r e e k
I n d u s t r i e s ,
I n c . ,
941
So.
2d 263
( A l a . 2 0 0 6 ) .
I n Weeks,
t h e
W a l k e r f a m i l y had
c o n v e y e d a l l t h e p r o p e r t y
i t owned on
t h e
w e s t s i d e o f a c r e e k known as S p r i n g B r a n c h i n B a l d w i n
C o u n t y
t o
one p a r t y , w h i l e r e s e r v i n g an e a s e m e n t a c r o s s t h a t
p r o p e r t y
f o r
t h e
b e n e f i t
o f
l a n d
t h e y
s t i l l
owned
e a s t
o f
S p r i n g
B r a n c h .
The
W a l k e r s
s u b s e q u e n t l y
s u b d i v i d e d
t h a t
p r o p e r t y
e a s t
o f
S p r i n g
B r a n c h
m u l t i p l e
t i m e s ,
and
i t was
s o l d
and
8
1080226
r e s o l d
numerous
t i m e s
o v e r
t h e
c o u r s e
o f
a p p r o x i m a t e l y
60
y e a r s .
E v e n t u a l l y t h e l a n d w e s t o f S p r i n g B r a n c h came t o
be
owned by
t h e Weeks f a m i l y , and
a s i g n i f i c a n t
p o r t i o n o f
t h e
p r o p e r t y
e a s t
o f
S p r i n g B r a n c h was
p u r c h a s e d by W o l f
C r e e k
I n d u s t r i e s ,
I n c . , a d e v e l o p e r ,
who
c o m b i n e d t h e p r o p e r t y
f o r
t h e d e v e l o p m e n t o f a m i x e d - u s e c o n d o m i n i u m d e v e l o p m e n t known
as
"The
Commons,"
c o n s i s t i n g o f
46
s i n g l e - f a m i l y u n i t s ,
2
d u p l e x
u n i t s , and 4 c o m m e r c i a l u n i t s .
The Weekses o b j e c t e d t o
t h e
use
o f
t h e
e a s e m e n t
by
t h i s
new
d e v e l o p m e n t
and
s u b s e q u e n t l y
s o u g h t a d e c l a r a t i o n by t h e B a l d w i n
C i r c u i t
C o u r t
t h a t
n e i t h e r W o l f C r e e k
n o r
o w n e r s
i n The
Commons had
t h e
r i g h t t o use t h e e a s e m e n t .
T h i s C o u r t u l t i m a t e l y a f f i r m e d t h e
j u d g m e n t o f t h e
t r i a l
c o u r t t h a t W o l f C r e e k and t h e owners i n
The Commons were e n t i t l e d
t o use
t h e e a s e m e n t , h o l d i n g
t h a t
e v e n t h o u g h t h e e a s e m e n t was
n o t
s p e c i f i c a l l y
r e f e r e n c e d
i n
t h e
c h a i n
o f
t i t l e
t o most
o f
t h e
p r o p e r t y
m a k i n g
up
The
Commons, when
t h e
e a s e m e n t
was
c r e a t e d
i t was
i n t e n d e d
t o
b e n e f i t
a l l t h e
l a n d owned
by
t h e
W a l k e r s
e a s t
o f
S p r i n g
B r a n c h
and
" [ e ] a c h
s u b s e q u e n t
s u b d i v i s i o n o f
t h e
d o m i n a n t
t e n e m e n t was
b e n e f i t e d , as a m a t t e r
o f l a w , by t h e e a s e m e n t . "
Weeks, 941
So.
2d a t
271.
9
1080226
A f t e r
d e c i d i n g
t h a t
i s s u e , t h e C o u r t f u r t h e r c o n s i d e r e d
t h e W e e k s e s ' a r g u m e n t t h a t u s e o f t h e e a s e m e n t by The Commons
w o u l d
o v e r b u r d e n
t h e Weekses' p r o p e r t y .
A f t e r
l i s t i n g
t h e
f a c t o r s
r e l e v a n t
t o
w h e t h e r
a
s e r v i e n t
e s t a t e
has
b e e n
o v e r b u r d e n e d , t h e C o u r t t h e n made t h e f o l l o w i n g s t a t e m e n t upon
w h i c h t h e PPCOA b a s e s i t s a p p e a l :
" M o r e o v e r ,
t h e
u s e
o f
t h e e a s e m e n t
by
o w n e r s
o f
p r o p e r t y
o t h e r t h a n a s u b d i v i s i o n
o f t h e
d o m i n a n t
t e n e m e n t
--
e v e n
p r o p e r t y
a c q u i r e d
by
t h e
d o m i n a n t - t e n e m e n t
owner
a f t e r
c r e a t i o n
o f
t h e
s e r v i t u d e
--
o v e r b u r d e n s
t h e
s e r v i e n t
e s t a t e
as
a
m a t t e r o f l a w .
I l G i a r d i n o , LLC v. B e l l e Haven L a n d
Co., 254 Conn. 502, 516, 757 A.2d 1103, 1113
( 2 0 0 0 ) ;
[ J o h n W.]
B r u c e & [James W.]
E l y [ , J r . , The
Law
o f
E a s e m e n t s and L i c e n s e s i n L a n d ] , 5 8.03[2]
[ ( 1 9 9 5 ) ] ;
see
a l s o Watson v. L a z y S i x C o r p . ,
60 8 So.
2d
389
( A l a .
1 9 9 2 ) ; Loveman v. L a y , 271 A l a . 385,
124
So.
2d
93
( 1 9 6 0 ) ;
and
M c L a u g h l i n
v.
S e l e c t m e n
o f
A m h e r s t ,
422 M a s s . 359,
664 N.E.2d 786
( 1 9 9 6 ) . "
941 So. 2d a t 272.
The PPCOA a r g u e s t h a t more t h a n t w o - t h i r d s
o f t h e p r o p e r t y c o n s t i t u t i n g
t h e
B e l l a
Luna d e v e l o p m e n t
i s
" p r o p e r t y
a c q u i r e d
by
t h e
d o m i n a n t - t e n e m e n t
owner
a f t e r
c r e a t i o n
o f t h e
s e r v i t u d e "
and
t h a t ,
p u r s u a n t t o t h e
a b o v e
s t a t e m e n t
f r o m
Weeks,
P e r d i d o
P l a c e
w o u l d
t h e r e f o r e
be
o v e r b u r d e n e d as a m a t t e r o f l a w i f t h e BLCOA i s a l l o w e d t o u s e
t h e
b e a c h - a c c e s s
e a s e m e n t
t h a t
i s a p p u r t e n a n t
o n l y
t o
t h e
10
1080226
w e s t e r n m o s t a c r e o f t h e a p p r o x i m a t e l y
3.5 a c r e s m a k i n g up
t h e
B e l l a Luna
p r o p e r t y .
The
BLCOA, h o w e v e r , a r g u e s
t h a t t h e s t a t e m e n t i n Weeks
upon w h i c h t h e
PPCOA r e l i e s i s
d i c t a b e c a u s e , i t a r g u e s , Weeks
d i d n o t a c t u a l l y i n v o l v e t h e u s e o f an e a s e m e n t t o b e n e f i t
p r o p e r t y
o u t s i d e t h e o r i g i n a l l y
d e f i n e d
d o m i n a n t
t e n e m e n t .
M o r e o v e r , t h e BLCOA a r g u e s ,
B e l l a Luna u n i t owners n o t o n l y
own some p r o p e r t y
t h a t
i s , a d m i t t e d l y ,
o u t s i d e t h e o r i g i n a l
d o m i n a n t t e n e m e n t -- t h a t i s , t h e l a n d a c q u i r e d
f r o m Cummans
-- b u t e a c h u n i t owner a l s o owns an u n d i v i d e d
i n t e r e s t i n t h e
l a n d
a c q u i r e d
f r o m
Cummans
t o
w h i c h
t h e e a s e m e n t i s
a p p u r t e n a n t .
We
a g r e e
t h a t
t h a t
f a c t
i s an
i m p o r t a n t
d i s t i n c t i o n .
The
s t a t e m e n t i n
Weeks upon w h i c h t h e
PPCOA r e l i e s may be
d i c t a ;
n e v e r t h e l e s s , i t
i s
an a c c u r a t e
s t a t e m e n t o f t h e l a w .
I t h a s ample s u p p o r t i n o t h e r
c a s e l a w ,
i n c l u d i n g Loveman v .
L a y ,
271 A l a .
385, 392, 124 So. 2d 93, 99 ( 1 9 6 0 ) ,
w h i c h i s
c i t e d i n
Weeks.
T h i s C o u r t h a s p r e v i o u s l y s u m m a r i z e d Loveman
as
f o l l o w s :
" I n Loveman v . L a y , s u p r a ,
a d o m i n a n t
e s t a t e
owner h a d an e a s e m e n t
o v e r t h e p r o p e r t i e s o f two
s e r v i e n t
e s t a t e o w n e r s .
The d o m i n a n t e s t a t e
owner
a l s o owned a p i e c e o f l a n d
a d j o i n i n g a n d a b u t t i n g
11
1080226
h i s
d o m i n a n t
e s t a t e ,
b u t n o t
a d j a c e n t
t o t h e
e a s e m e n t .
The d o m i n a n t
e s t a t e
owner
a l l o w e d t h e
e a s e m e n t
t o be
u s e d
t o
b e n e f i t
h i s
p r o p e r t y
a d j o i n i n g
a n d
a b u t t i n g
t h e d o m i n a n t
e s t a t e
b y
a l l o w i n g
c o a l t o be b r o u g h t i n o v e r t h e e a s e m e n t t o
h e a t
t h e
b u i l d i n g s
on t h e
l a n d
a d j o i n i n g
a n d
a b u t t i n g t h e d o m i n a n t
e s t a t e .
The s e r v i e n t
e s t a t e
o w n e r s
s o u g h t
i n j u n c t i v e
r e l i e f ,
a n d
t h i s
C o u r t
d e t e r m i n e d
t h a t
' t h e h a u l i n g
o f
c o a l
o v e r t h e
[ e a s e m e n t ] f o r
t h e p u r p o s e o f h e a t i n g t h e b u i l d i n g
o r b u i l d i n g s w e s t o f t h e [ d o m i n a n t e s t a t e ]
s h o u l d be
e n j o i n e d , '
271 A l a . a t 3 9 3 , 124 So. 2d a t 99,
b e c a u s e ,
' [ i ] f
t h e [ e a s e m e n t ] i s
f o r
t h e b e n e f i t o f
some
p a r t i c u l a r
l a n d [ , ]
i t c a n n o t be
u s e d t o
accommodate some o t h e r
t r a c t o f l a n d
a d j o i n i n g o r
l y i n g b e y o n d . '
271 A l a . a t 392, 124 So.2d a t
99."
P h i l l i p s v . W a t e r Works & Sewer Bd. o f A r i t o n , [Ms. 1060350,
J u l y 17, 2009]
So. 3d
,
( A l a . 2 0 0 9 ) .
However, t h e
i n s t a n t c a s e d i f f e r s f r o m Loveman i n a s m u c h as i t
i s i m p o s s i b l e
t o
s t a t e
t h a t any u s e o f t h e b e a c h - a c c e s s e a s e m e n t by B e l l a
Luna owners w o u l d n o t be f o r
t h e b e n e f i t o f p r o p e r t y
w i t h i n
t h e
d o m i n a n t
t e n e m e n t .
As
a l r e a d y
n o t e d , t h e B e l l a
Luna
o w n e r s a l l
have an u n d i v i d e d
o w n e r s h i p
i n t e r e s t i n
t h e B e l l a
Luna common a r e a s , a n d i t
i s u n d i s p u t e d t h a t some o f t h o s e
common a r e a s a r e l o c a t e d
on t h e t r a c t o f l a n d
o r i g i n a l l y
c o n v e y e d
b y Cummans t o P&C a n d t o w h i c h t h e e a s e m e n t i s
a p p u r t e n a n t .
M o r e o v e r ,
i t i s r e a d i l y
a p p a r e n t
f r o m t h e
p i c t o r i a l e v i d e n c e s u b m i t t e d t h a t t h e a c t u a l c o n d o m i n i u m t o w e r
t r a v e r s e s b o t h t h e l a n d f o r m e r l y owned by Cummans a n d t h e l a n d
12
1080226
f o r m e r l y
owned by F u d p u c k e r s , so e v e n some
i n d i v i d u a l
u n i t s
l i k e l y
o v e r l a p
b o t h p r o p e r t i e s .
Thus, w h i l e i t
was
p o s s i b l e
i n Loveman t o s t a t e c o n c l u s i v e l y t h a t t h e d i s p u t e d u s e o f t h e
e a s e m e n t was p r o h i b i t e d b e c a u s e t h a t u s e c l e a r l y was f o r
t h e
s o l e
b e n e f i t o f p r o p e r t y
o u t s i d e
t h e d o m i n a n t t e n e m e n t , we
c a n n o t do t h e same i n t h i s
c a s e
b e c a u s e
e a c h u s e o f t h e
d i s p u t e d
b e a c h - a c c e s s
e a s e m e n t by a B e l l a
Luna
u n i t owner
w o u l d c l e a r l y n o t be f o r
t h e s o l e b e n e f i t o f p r o p e r t y
o u t s i d e
t h e
d o m i n a n t
t e n e m e n t .
R a t h e r
e a c h
o w n e r ' s
u s e
w o u l d
n e c e s s a r i l y
be f o r t h e b e n e f i t
o f t h a t
o w n e r ' s
p a r c e l o f
p r o p e r t y
-- w h i c h
p a r c e l
i s made up o f b o t h
t h e o w n e r ' s
i n d i v i d u a l u n i t as w e l l as t h a t o w n e r ' s i n t e r e s t i n
t h e common
a r e a s ,
some
o f w h i c h
a r e
w i t h i n
t h e d o m i n a n t
t e n e m e n t .
A c c o r d i n g l y ,
we c a n n o t s a y t h a t t h e u s e o f t h e b e a c h - a c c e s s
e a s e m e n t by t h e BLCOA o v e r b u r d e n s t h e s e r v i e n t
e s t a t e ,
i . e . ,
P e r d i d o P l a c e , as a m a t t e r o f l a w .
Of
c o u r s e , a l t h o u g h we a r e h o l d i n g
t h a t t h e BLCOA's u s e
o f t h e b e a c h - a c c e s s e a s e m e n t does n o t c o n s t i t u t e o v e r b u r d e n i n g
as a m a t t e r o f l a w , t h e PPCOA may
s t i l l
a s s e r t , as a
f a c t u a l
m a t t e r , t h a t
t h e r e h a s b e e n o v e r b u r d e n i n g .
I n t h a t c a s e , i t
w o u l d be t h e PPCOA's d u t y t o p r o v e o v e r b u r d e n i n g .
See Weeks,
13
1080226
941
So. 2d a t 271-72
( " ' [ T ] h e owner o f t h e s e r v i e n t
e s t a t e
[ o r d i n a r i l y ] h a s t h e b u r d e n o f p r o v i n g
o v e r b u r d e n i n g b e c a u s e
t h e
s e r v i e n t owner h a s a s s e r t e d
o v e r b u r d e n i n g as a c a u s e o f
a c t i o n o r as a r e p l y t o a s p e c i a l d e f e n s e o f an e a s e m e n t when
t h e
p u r p o s e o f t h e e a s e m e n t i s n o t i n d i s p u t e . ' "
( q u o t i n g
Zhang v. O m n i p o i n t Commc'ns E n t e r s . , I n c . ,
272 Conn. 627, 640
n.8,
866 A.2d 588, 596 n.8
( 2 0 0 5 ) ) ) .
F a c t o r s
r e l e v a n t t o
m a k i n g a s h o w i n g o f o v e r b u r d e n i n g i n c l u d e : (1) e v i d e n c e o f an
a b r u p t c h a n g e i n t h e d e v e l o p m e n t o f t h e d o m i n a n t e s t a t e and
i t s u s e o f t h e e a s e m e n t ; (2) a d e c r e a s e i n t h e p r o p e r t y
v a l u e
o f t h e s e r v i e n t e s t a t e as a r e s u l t o f t h e u s e o f t h e e a s e m e n t ;
(3) an i n c r e a s e i n n o i s e and t r a f f i c a l o n g t h e e a s e m e n t so as
t o i n t e r f e r e w i t h t h e s e r v i e n t o w n e r ' s p e a c e and e n j o y m e n t o f
t h e
l a n d ; and (4) p h y s i c a l damage t o t h e s e r v i e n t
e s t a t e .
Weeks, 941 So. 2d a t 2 7 2 .
H o w e v e r , t h e t r i a l
c o u r t i n t h i s
c a s e
s p e c i f i c a l l y
r e j e c t e d
t h e
PPCOA's
a s s e r t i o n
o f
o v e r b u r d e n i n g , s t a t i n g : "The c o u r t f i n d s t h a t no o v e r b u r d e n i n g
o f t h e e a s e m e n t h a s o c c u r r e d , as t h e r e h a s b e e n no
s i g n i f i c a n t
c h a n g e i n u s e o f t h e e a s e m e n t f r o m t h a t c o n t e m p l a t e d b y t h e
p a r t i e s
( i n c l u d i n g t h e owner o f t h e s e r v i e n t e s t a t e ) a t t h e
t i m e t h e e a s e m e n t was c r e a t e d . "
T h i s f i n d i n g i s s u p p o r t e d by
14
1080226
t h e
e v i d e n c e
i n t h e r e c o r d ,
i n c l u d i n g
t e s t i m o n y
f r o m
a
d e v e l o p e r who was i n b u s i n e s s
w i t h P&C -- w h i c h
o r i g i n a l l y
o b t a i n e d t h e o n e - a c r e
p a r c e l f r o m Cummans a n d t h e e a s e m e n t
f r o m P e r d i d o
P l a c e , LLC -- who s t a t e d t h a t he h a d d i s c u s s e d
h i s
d e v e l o p m e n t
p l a n s
w i t h
Cummans
a n d
s p e c i f i c a l l y
h a d
d i s c u s s e d b e a c h a c c e s s f o r
t h e F u d p u c k e r s p r o p e r t y by way o f
t h e e a s e m e n t a c r o s s
P e r d i d o
P l a c e .
T h e r e was a l s o
t e s t i m o n y
f r o m
m u l t i p l e r e a l - e s t a t e p r o f e s s i o n a l s s t a t i n g
t h a t
t h e r e
w o u l d be no n e g a t i v e
i m p a c t on P e r d i d o
P l a c e i f
t h e e a s e m e n t
was o p e n e d up f o r
u s e by t h e BLCOA.
I n l i g h t o f t h i s o r e
t e n u s e v i d e n c e , we c a n n o t s a y t h a t t h e t r i a l
c o u r t ' s
f i n d i n g
t h a t
t h e r e h a s b e e n no o v e r b u r d e n i n g
i s c l e a r l y
e r r o n e o u s ,
w i t h o u t s u p p o r t i n g e v i d e n c e , m a n i f e s t l y u n j u s t , o r a g a i n s t t h e
g r e a t w e i g h t o f t h e e v i d e n c e .
See P o l l a r d , 902 So. 2d a t
2 3 .
I V .
The
BLCOA
f i l e d
a d e c l a r a t o r y - j u d g m e n t
a c t i o n i n
t h e
B a l d w i n
C i r c u i t
C o u r t
a s k i n g
t h a t c o u r t t o e n t e r a j u d g m e n t
d e c l a r i n g a b e a c h - a c c e s s e a s e m e n t
v a l i d a n d e n f o r c e a b l e a n d
e n j o i n i n g t h e
PPCOA f r o m o b s t r u c t i n g t h a t e a s e m e n t . The PPCOA
f i l e d
a c o u n t e r c l a i m
a r g u i n g
t h a t t h e e a s e m e n t
s h o u l d be
d e c l a r e d v o i d b e c a u s e t h e BLCOA's u s e o f i t
w o u l d , t h e PPCOA
15
1080226
a l l e g e d , o v e r b u r d e n
P e r d i d o P l a c e .
However, t h e t r i a l
c o u r t
r e j e c t e d
t h e PPCOA's
a r g u m e n t ,
f o u n d
t h a t
t h e r e
was
no
o v e r b u r d e n i n g , and e n t e r e d a j u d g m e n t d e c l a r i n g t h e d i s p u t e d
b e a c h - a c c e s s
e a s e m e n t
v a l i d and e n f o r c e a b l e .
B e c a u s e
t h a t
j u d g m e n t i s s u p p o r t e d b y b o t h t h e l a w a n d t h e f a c t s i n t h e
r e c o r d , i t
i s h e r e b y
a f f i r m e d .
AFFIRMED.
Cobb, C . J . , and W o o d a l l , S m i t h , B o l i n , P a r k e r , and Shaw,
J J . ,
c o n c u r .
L y o n s , J . , c o n c u r s
s p e c i a l l y .
M u r d o c k , J . , d i s s e n t s .
16
1080226
LYONS, J u s t i c e ( c o n c u r r i n g
s p e c i a l l y ) .
I c o n c u r f u l l y i n
t h e
m a i n o p i n i o n .
I w r i t e s p e c i a l l y t o
n o t e t h e a b s e n c e o f an o b j e c t i o n t o t e s t i m o n y
c e n t r a l t o
t h e
i s s u e o f i n t e n t i o n o f t h e
p a r t i e s a t t h e t i m e t h e
e a s e m e n t was
c r e a t e d a n d a l s o t o comment on t h e s t a t e m e n t i n Weeks v . W o l f
C r e e k I n d u s t r i e s , I n c . ,
941 So. 2d 263 ( A l a .
2 0 0 6 ) , t h a t i s
r e l i e d upon b y t h e PPCOA.
The m a i n o p i n i o n s t a t e s :
" T h i s
f i n d i n g [ o f
no o v e r b u r d e n i n g
o f t h e e a s e m e n t
b e c a u s e t h e r e h a s b e e n no s i g n i f i c a n t c h a n g e i n
u s e
o f
t h e e a s e m e n t
f r o m
t h a t
c o n t e m p l a t e d
by t h e
p a r t i e s
( i n c l u d i n g t h e
owner o f t h e s e r v i e n t e s t a t e )
a t t h e t i m e t h e e a s e m e n t was c r e a t e d ] i s s u p p o r t e d
by t h e e v i d e n c e i n t h e r e c o r d ,
i n c l u d i n g
t e s t i m o n y
f r o m a d e v e l o p e r
who was i n b u s i n e s s
w i t h P&C -¬
w h i c h
o r i g i n a l l y
o b t a i n e d t h e o n e - a c r e p a r c e l
f r o m
Cummans a n d t h e e a s e m e n t f r o m P e r d i d o
P l a c e , LLC -¬
who
s t a t e d
t h a t he h a d d i s c u s s e d h i s d e v e l o p m e n t
p l a n s
w i t h Cummans a n d s p e c i f i c a l l y h a d
d i s c u s s e d
b e a c h a c c e s s f o r
t h e F u d p u c k e r s p r o p e r t y by way o f
t h e e a s e m e n t a c r o s s
P e r d i d o
P l a c e . "
So. 3d a t
. The PPCOA c o n t e n d s t h a t no e v i d e n c e was
p r e s e n t e d
f r o m Cummans as t o t h e i s s u e o f what t h e p a r t i e s
c o n t e m p l a t e d when t h e e a s e m e n t was c r e a t e d .
The
t e s t i m o n y
r e f e r r e d t o i n
t h e
m a i n o p i n i o n d e a l s w i t h what D a v i d Cummans
was t o l d ;
t h e r e f o r e , t h e t r i a l
c o u r t h a d s u f f i c i e n t b a s i s t o
make i t s
o b s e r v a t i o n as t o t h e c o n t e m p l a t i o n
o f t h e p a r t i e s .
17
1080226
T h i s e v i d e n c e was r e c e i v e d w i t h o u t o b j e c t i o n f r o m t h e PPCOA on
t h e
g r o u n d
t h a t
e v i d e n c e o f t h e i n t e n t o f t h e p a r t i e s was
i n a d m i s s i b l e b a s e d on t h e l a c k o f a m b i g u i t y i n t h e i n s t r u m e n t
c r e a t i n g t h e e a s e m e n t .
I n Weeks, t h i s C o u r t s t a t e d :
" M o r e o v e r , t h e u s e o f t h e
e a s e m e n t b y o w n e r s o f p r o p e r t y
o t h e r t h a n a s u b d i v i s i o n o f
t h e
d o m i n a n t
t e n e m e n t - - e v e n
p r o p e r t y
a c q u i r e d
b y
t h e
d o m i n a n t - t e n e m e n t
owner
a f t e r
c r e a t i o n
o f
t h e
s e r v i t u d e - - o v e r b u r d e n s
t h e s e r v i e n t
e s t a t e
as a m a t t e r o f
l a w . "
941 So. 2d a t 272
( e m p h a s i s
a d d e d ) .
I r e a d t h e
f o r e g o i n g
s t a t e m e n t
as
s t a t i n g a
r u l e
t h a t
t h e owner o f
p r o p e r t y
a c q u i r e d
f r o m an e n t i t y
t h a t
a l s o h a p p e n e d t o own a
d o m i n a n t e s t a t e i n
an e a s e m e n t d e r i v e s no r i g h t s w h a t s o e v e r i n
s u c h e a s e m e n t
s i m p l y
b y t h e f o r t u i t y o f i t s
p r e d e c e s s o r i n
t i t l e
a l s o h a p p e n i n g t o own s e p a r a t e p r o p e r t y
t h a t h a s r i g h t s
i n s u c h e a s e m e n t .
I do n o t r e a d t h e f o r e g o i n g
s t a t e m e n t f r o m
Weeks as l i m i t i n g t h e n a t u r e o f t h e o w n e r s h i p i n t h e d o m i n a n t
e s t a t e t o t h e o w n e r s h i p o f f e e - s i m p l e
t i t l e t o a
s u b d i v i d e d
t r a c t
s i t u a t e d w i t h i n t h e b o u n d a r y o f t h e o r i g i n a l
d o m i n a n t
e s t a t e .
I c o n s t r u e
" s u b d i v i s i o n "
as u s e d
i n Weeks i n a
b r o a d e r
s e n s e
t h a t
e m b r a c e s t h e r e c o g n i t i o n
o f r i g h t s o f
18
1080226
o w n e r s h i p i n a common a r e a s i t u a t e d w i t h i n t h e b o u n d a r y o f t h e
o r i g i n a l
d o m i n a n t
e s t a t e .
C o n s e q u e n t l y ,
Weeks
does
n o t
r e q u i r e
t h e r e v e r s a l
o f t h e j u d g m e n t
o f t h e
t r i a l
c o u r t i n
t h i s
c a s e .
19
1080226
MURDOCK, J u s t i c e
( d i s s e n t i n g ) .
By t h e e x p r e s s t e r m s o f t h e d e e d by w h i c h P e r d i d o P l a c e ,
LLC, c r e a t e d and c o n v e y e d t h e e a s e m e n t a t i s s u e , t h e e a s e m e n t
was
c r e a t e d
t o
be
a p p u r t e n a n t
o n l y
t o
t h e
o n e - a c r e
l o t
p u r c h a s e d by P&C
P r o p e r t i e s ,
LLC,
f r o m D a v i d Cummans.
T h a t
e a s e m e n t i s now
t o be u s e d , h o w e v e r , by i n d i v i d u a l s who
w i l l
n o t be
o c c u p a n t s o f a c o n d o m i n i u m u n i t
l o c a t e d
i n w h o l e
o r
e v e n i n s u b s t a n t i a l p a r t on t h i s o n e - a c r e l o t .
As t h e m a i n o p i n i o n p o i n t s o u t , t h e f o l l o w i n g
p r i n c i p l e ,
as
s t a t e d by
t h i s
C o u r t i n Weeks v. W o l f
C r e e k
I n d u s t r i e s ,
I n c . ,
941
So.
2d
263
( A l a . 200 6 ) ,
i s i n d e e d
an
a c c u r a t e
s t a t e m e n t o f t h e l a w :
" ' [ T ] h e u s e o f
[an] e a s e m e n t by o w n e r s o f p r o p e r t y
o t h e r t h a n a s u b d i v i s i o n o f t h e d o m i n a n t t e n e m e n t -¬
e v e n
p r o p e r t y
a c q u i r e d
by
t h e
d o m i n a n t - t e n e m e n t
owner a f t e r c r e a t i o n o f t h e s e r v i t u d e --
o v e r b u r d e n s
t h e
s e r v i e n t
e s t a t e
as
a
m a t t e r
o f
l a w .
I l
G i a r d i n o ,
LLC
v.
B e l l e
Haven L a n d
Co.,
254
Conn.
502,
516,
757
A.2d
1103,
1113
( 2 0 0 0 ) ;
[ J o h n
W.]
B r u c e & [James W.]
E l y [ , J r . , The
Law
o f E a s e m e n t s
and L i c e n s e s i n L a n d ] , 5 8.03[2]
[ ( 1 9 9 5 ) ] ; see
a l s o
W a t s o n
v.
L a z y
S i x C o r p . ,
608
So.
2d
38 9 ( A l a .
1 9 9 2 ) ; Loveman v. L a y , 271 A l a . 385,
124
So. 2d
93
( 1 9 6 0 ) ; and M c L a u g h l i n v. S e l e c t m e n o f A m h e r s t ,
422
M a s s . 359,
664 N.E.2d 786
( 1 9 9 6 ) . ' "
So. 3d a t
( q u o t i n g Weeks, 941 So. 2d a t 272
( e m p h a s i s
a d d e d ) ) .
A l t h o u g h
t h i s
p r i n c i p l e ,
a t
l e a s t
as
s t a t e d
i n
20
1080226
Weeks, u s e s t h e t e r m " o v e r b u r d e n s " -- a t e r m t h a t s u g g e s t s a
q u a n t i t a t i v e
c o n c e r n --
t h e
i s s u e
i s i n f a c t a q u a l i t a t i v e
one.
T h a t
i s , i t i s a q u e s t i o n
o f p r o p e r t y
r i g h t s --
o f
w h e t h e r
a
p a r t y
has
any
r i g h t w h a t s o e v e r
t o
u s e
a
g i v e n
e a s e m e n t .
The m a i n
o p i n i o n
r e a s o n s
t h a t
t h e p r e s e n t c a s e
d i f f e r s
f r o m Loveman v.
L a y ,
271
A l a . 385,
124
So.
2d
93
(1
9 6 0 ) ,
" i n a s m u c h
as i t i s i m p o s s i b l e
t o s t a t e
t h a t
any u s e o f
t h e
b e a c h - a c c e s s e a s e m e n t by B e l l a Luna owners w o u l d n o t be f o r
t h e
b e n e f i t o f p r o p e r t y
w i t h i n t h e d o m i n a n t
t e n e m e n t . "
So.
3d
a t
.
The
m a i n
o p i n i o n
i s a b l e
t o s a y
t h i s
n o t
b e c a u s e e v e r y u s e o f t h e e a s e m e n t w i l l be by someone o c c u p y i n g
a c o n d o m i n i u m u n i t l o c a t e d i n w h o l e o r i n p a r t on t h e o n e - a c r e
t r a c t ,
b u t
b e c a u s e
e v e n
o w n e r s
and
r e s i d e n t s
o f
u n i t s
n o t
p h y s i c a l l y l o c a t e d on t h e o n e - a c r e t r a c t w i l l b e n e f i t f r o m t h e
a r r a n g e m e n t
by w h i c h t h e owner o f e a c h c o n d o m i n i u m i s t o be
d e e d e d
an
u n d i v i d e d
o w n e r s h i p
i n t e r e s t i n some p o r t i o n
o r
p o r t i o n s
o f t h e o n e - a c r e
t r a c t t o be
d e s i g n a t e d
as "common
a r e a s . "
I t i s by way o f s u c h an a r r a n g e m e n t
t h a t t h e
o w n e r s ,
and
i n
t u r n
t h e
t e n a n t s ,
o f
u n i t s
n o t
l o c a t e d
i n
any
m e a n i n g f u l way on t h e p r o p e r t y
i n t e n d e d
t o be b e n e f i t e d by t h e
21
1080226
e a s e m e n t p u r p o r t
t o
a c q u i r e
a
l e g a l
r i g h t
t o
t h a t
e a s e m e n t .
The
o p e r a t i v e
p r i n c i p l e , as s t a t e d i n Loveman i t s e l f
( t h e same
f u n d a m e n t a l p r i n c i p l e
as q u o t e d above f r o m W e e k s ) , i s a t odds
w i t h
t h i s
r e s u l t :
" I f
t h e
g r a n t
i s
f o r
t h e
b e n e f i t
o f
some
p a r t i c u l a r
l a n d
i t can
n o t
be
u s e d
t o
accommodate
some o t h e r
t r a c t
o f l a n d a d j o i n i n g o r
l y i n g b e y o n d .
'"One
h a v i n g
a r i g h t
o f way
a p p u r t e n a n t
t o
c e r t a i n
l a n d can
n o t
use
i t f o r t h e b e n e f i t o f o t h e r
l a n d . "
...
" I f a man
h a v e
a p r i v a t e
way
t o
a c l o s e ,
he
must
n o t
e n l a r g e
i t
t o
o t h e r
p u r p o s e s . "
...
" P r i v a t e
ways
a r e
c o n f i n e d
i n
t h e i r
use
t o
t h e
p u r p o s e s
f o r w h i c h t h e y a r e
g r a n t e d ,
and
c a n n o t
be
e x t e n d e d
by
t h e
g r a n t e e s .
When
i n t e n d e d
t o
g i v e
a c c e s s
o n l y
t o
p a r t i c u l a r
p r e m i s e s ,
t h e y c a n n o t
be
u s e d
t h e r e b y
t o
r e a c h
o t h e r
l a n d s . " '
West
v.
L o u i s v i l l e
& N a s h v i l l e R a i l r o a d
Co.,
137
A l a .
568,
34
So.
852,
853
[ ( 1 9 0 3 ) ] ;
28 C . J . S . E a s e m e n t s §
92,
p.
772;
17A Amer. J u r . ,
§ 115,
p.
723."
271
A l a .
a t
3 9 2 - 9 3 ,
124
So.
2d
a t
99
( e m p h a s i s
a d d e d ) .
A d h e r e n c e
t o
t h i s
s t r a i g h t f o r w a r d
p r i n c i p l e ,
I
s u b m i t ,
r e q u i r e s an a c k n o w l e d g m e n t t h a t t o t h e e x t e n t
t h e e a s e m e n t i n
q u e s t i o n
w i l l , as a r e s u l t
o f o u r
d e c i s i o n t o d a y , be u s e d f o r
t h e
b e n e f i t
o f
p r o p e r t y
o t h e r
t h a n
t h a t
t o w h i c h
t h e
d e e d
c r e a t i n g
i t makes
i t a p p u r t e n a n t ,
i t s use
w i l l
e x c e e d
t h e
r i g h t c o n v e y e d by
t h a t
d e e d .
The
m a i n o p i n i o n
s p e c i f i c a l l y s e e k s t o
d i s t i n g u i s h
t h i s
c a s e f r o m Loveman by
r e l y i n g
on t h e
f a c t
t h a t
" t h e
B e l l a L u n a
22
1080226
o w n e r s a l l
have an u n d i v i d e d o w n e r s h i p i n t e r e s t i n t h e B e l l a
Luna common a r e a s , a n d i t
i s u n d i s p u t e d t h a t some o f t h o s e
common
a r e a s a r e l o c a t e d on t h e t r a c t
o f l a n d
o r i g i n a l l y
c o n v e y e d by Cummans t o P&C a n d t o w h i c h t h e e a s e m e n t i s
a p p u r t e n a n t . "
So. 3d a t
.
T h e r e b e i n g no a m b i g u i t y
i n
t h e d e e d b y w h i c h t h e e a s e m e n t was c r e a t e d i n t h i s c a s e ,
t h i s
C o u r t
must be
g o v e r n e d
by t h e i n t e n t
o f t h e g r a n t o r as
o b j e c t i v e l y m a n i f e s t e d i n
t h e l a n g u a g e o f t h e d e e d .
3
I s e e
no
b a s i s i n
t h e l a n g u a g e o f t h a t d e e d f r o m w h i c h t o c o n c l u d e t h a t
"The l a w
i n
A l a b a m a i s
w e l l s e t t l e d :
' [ T ] h e
C o u r t must l o o k t o t h e w r i t t e n i n s t r u m e n t
t o d e t e r m i n e t h e s c o p e o f t h e g r a n t . '
C i t y
o f M o n t g o m e r y v. M a u l l , 344 So. 2d 492,
495
( A l a .
1 9 7 7 ) .
I n c o n s t r u i n g
t h e g r a n t i n g
i n s t r u m e n t t o a s c e r t a i n t h e i n t e n t i o n o f
t h e
p a r t i e s , t h e p l a i n ,
c l e a r
m e a n i n g o f
i t s
t e r m s must be g i v e n
e f f e c t , a n d
' t h e
p a r t i e s must be l e g a l l y p r e s u m e d t o h a v e
i n t e n d e d what i s p l a i n l y a n d c l e a r l y s e t
o u t . ' Camp v. M i l a m , 291 A l a . 12, 16, 277
So. 2d 95, 98
( 1 9 7 3 ) . A c c o r d ,
F i n a n c i a l
I n v e s t m e n t
C o r p .
v.
T u k a b a t c h e e
A r e a
C o u n c i l ,
I n c . , Boy S c o u t s o f A m e r i c a , 35
3
So. 2d 1389 ( A l a . 1 9 7 7 ) . The c o u r t
c a n n o t
l o o k b e y o n d t h e ' f o u r c o r n e r s o f t h e g r a n t
t o
c o n s t r u e i t s
t e r m s
u n l e s s
t h e c o u r t
d e t e r m i n e s t h a t t h e l a n g u a g e o r i t s m e a n i n g
i s a m b i g u o u s . ' Camp, s u p r a . "
3
K e r r i g a n v. S h e r r e r , 535 So. 2d 74, 75 ( A l a . 1 9 8 8 ) .
23
1080226
t h e g r a n t o r
i n t e n d e d f o r i t s p r o p e r t y t o be b u r d e n e d and t h e
e a s e m e n t i n q u e s t i o n t o be u s e d b y i n d i v i d u a l s who h a v e no
s u b s t a n t i a l o c c u p a n c y r i g h t i n
t h e o n e - a c r e t r a c t ,
i t s e l f , b u t
who s i m p l y have some u n d i v i d e d i n t e r e s t i n
some p o r t i o n o f
t h e
o n e - a c r e t r a c t t h a t h a s b e e n c a r v e d o u t f o r
u s e as a "common
a r e a " f o r t h e b e n e f i t o f t h e owners and r e s i d e n t s o f o t h e r
p r o p e r t y ,
as w e l l as owners and r e s i d e n t s o f t h e o n e - a c r e
t r a c t
i t s e l f .
U n d e r
t h i s
d e r i v a t i v e - b e n e f i t a p p r o a c h
s a n c t i o n e d b y t h e C o u r t
t o d a y ,
a d e v e l o p e r
c o u l d
o b t a i n an
e a s e m e n t t o b e n e f i t a o n e - a c r e t r a c t o f l a n d , as o c c u r r e d i n
t h i s c a s e , and t h e n p r o c e e d t o o b t a i n n o t m e r e l y an a d d i t i o n a l
2.5 a c r e s , b u t p e r h a p s d o z e n s o f a c r e s o r more o f
a d j a c e n t
l a n d , w h i c h i t
w o u l d
s e l l o r l e a s e t o an unknown number o f
a d d i t i o n a l owners o r t e n a n t s .
To e a c h s u c h owner o r t e n a n t ,
t h e d e v e l o p e r
c o u l d c o n v e y an u n d i v i d e d o w n e r s h i p i n t e r e s t i n
some s m a l l p o r t i o n o f t h e o n e - a c r e t r a c t , and t h e r e b y
p a r l a y
t h e u s e o f t h e e a s e m e n t and t h e b u r d e n on t h e s e r v i e n t e s t a t e
w e l l b e y o n d
t h a t
c o n t e m p l a t e d
b y t h e t e r m s o f t h e
o r i g i n a l
c o n v e y i n g
i n s t r u m e n t . A t some p o i n t , p r e s u m a b l y d e p e n d i n g upon
t h e
d e n s i t y o f d e v e l o p m e n t o f t h e a d j a c e n t
p r o p e r t y and t h e
f r e q u e n c y o f u s e o f t h e e a s e m e n t by i t s o w n e r s and r e s i d e n t s ,
24
1080226
t h e owner o f t h e
s e r v i e n t t e n e m e n t may
be
a b l e
t o a r g u e
t h a t
i t s
p r o p e r t y
i s b e i n g
o v e r b u r d e n e d
" i n f a c t . "
The
C o u r t ' s
d e c i s i o n
t o d a y , h o w e v e r , d e p r i v e s
t h e owner o f
i t s
r i g h t f u l
c l a i m
t o o v e r b u r d e n i n g
"as
a m a t t e r o f
l a w . "
I s u b m i t
t h a t
t h i s i s a c h a n g e t h a t n o t o n l y d e p r i v e s
t h a t l a n d o w n e r o f w e l l
e s t a b l i s h e d
r e a l - p r o p e r t y
r i g h t s ,
b u t
a l s o ,
on
a
p r a c t i c a l
l e v e l , y i e l d s l e s s p r o t e c t i o n , more u n c e r t a i n t y , and a
g r e a t e r
c h a n c e o f
l i t i g a t i o n
as
a r e s u l t o f t h a t
u n c e r t a i n t y .
A g a i n ,
t h e
o r i g i n a l c o n v e y i n g i n s t r u m e n t
i n t h e
p r e s e n t
c a s e
c o n t e m p l a t e d
a b u r d e n
on
t h e
s e r v i e n t
e s t a t e
f o r
t h e
p u r p o s e o f b e n e f i t t i n g a 1 - a c r e t r a c t o f l a n d , n o t
a 3 . 5 - a c r e
t r a c t o f l a n d .
I n a l l o w i n g t h e b u r d e n t o be i n c r e a s e d
s e v e r a l
t i m e s
o v e r ,
t h i s
C o u r t
has
i m p o s e d
on
t h e
owner
o f
t h e
s e r v i e n t e s t a t e
a b u r d e n t h a t
i t n e v e r assumed.
The m a i n o p i n i o n c o n c l u d e s t h a t " w h i l e
i t was
p o s s i b l e i n
Loveman
t o
s t a t e
c o n c l u s i v e l y
t h a t
t h e
d i s p u t e d
use
o f
t h e
e a s e m e n t was
p r o h i b i t e d b e c a u s e t h a t use
c l e a r l y was
f o r
t h e
s o l e
b e n e f i t
o f
p r o p e r t y
o u t s i d e
t h e
d o m i n a n t t e n e m e n t ,
we
c a n n o t do
t h e same i n t h i s c a s e
So.
3d
a t
.
Any
a t t e m p t t o d i s t i n g u i s h Loveman on t h e g r o u n d t h a t t h e e a s e m e n t
a t i s s u e t h e r e
s o l e l y b e n e f i t e d p r o p e r t y
o u t s i d e
t h e d o m i n a n t
25
1080226
t e n e m e n t m i s s e s t h e mark.
The
o p e r a t i v e p r i n c i p l e i n Loveman
was
t h a t t h e e a s e m e n t c o u l d n o t b u r d e n t h e s e r v i e n t t e n e m e n t
f o r
t h e
b e n e f i t o f p r o p e r t y
o u t s i d e
t h e
d o m i n a n t
t e n e m e n t .
Y e t ,
t h a t
i s what t h e
d e c i s i o n by
t h i s
C o u r t
t o d a y
c l e a r l y
a l l o w s .
L i k e w i s e , t h e m a i n o p i n i o n c o n c l u d e s
t h a t "we
c a n n o t
s a y
t h a t
t h e
use
o f
t h e
b e a c h - a c c e s s
e a s e m e n t
by
t h e
BLCOA
o v e r b u r d e n s t h e
s e r v i e n t e s t a t e
...
as
a m a t t e r
o f l a w . "
So.
3d a t
.
I b e l i e v e we
c a n .
F i n a l l y ,
I s p e c i f i c a l l y
d i s a g r e e w i t h t h e a f f i r m a n c e
o f
t h e
t r i a l c o u r t ' s use o f what i t r e f e r s t o as t h e
" c o m p a r a t i v e
i n j u r y d o c t r i n e " and
t h e b a l a n c i n g o f e q u i t i e s .
The
outcome
i n t h i s c o n t e s t o v e r p r o p e r t y r i g h t s i s and s h o u l d be g o v e r n e d
by t h e l a n g u a g e o f t h e d e e d i n q u e s t i o n .
" [ T ] h e
r i g h t t o c o n t r o l one's p r o p e r t y i s a s a c r e d
r i g h t
w h i c h s h o u l d n o t be t a k e n away w i t h o u t u r g e n t
r e a s o n . "
S m i t h
v. S m i t h ,
254 A l a . 404,
409,
48 So. 2d 546,
549
( 1 9 5 0 ) .
I t i s
f o r
t h e p r o t e c t i o n o f
t h i s
r i g h t
t h a t t h e
S t a t u t e o f
F r a u d s
r e q u i r e s ,
f o r
t h e
c o n v e y a n c e
o f
r e a l
p r o p e r t y ,
a
w r i t t e n
i n s t r u m e n t
by
w h i c h
t h e
g r a n t o r
o b j e c t i v e l y
m a n i f e s t s
h i s
i n t e n t t o g i v e up an i n t e r e s t i n o r t o p l a c e a b u r d e n upon h i s
26
1080226
p r o p e r t y .
B e c a u s e I do n o t b e l i e v e
P e r d i d o
B e a c h , L L C ,
has
done
t h i s
t o t h e e x t e n t
d e c l a r e d
by t h e
t r i a l
c o u r t ,
whose
j u d g m e n t
i s a f f i r m e d
t o d a y
by
t h i s
C o u r t ,
I
r e s p e c t f u l l y
d i s s e n t .
27 | December 4, 2009 |
5ecb6a52-b4a3-452e-b2ea-90e768ca54e7 | Ex parte Robert F. Dailey. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Lisa R. Mills v. Robert F. Dailey) | N/A | 1071413 | Alabama | Alabama Supreme Court | REL:ll/20/2009
Notice: T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e
advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e
r e q u e s t e d t o n o t i f y t h e
Reporter of
Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741 ((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may
be
made b e f o r e
t h e o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1071413
Ex p a r t e Robert F. D a i l e y
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In r e : L i s a R. M i l l s
v.
Robert F. D a i l e y )
(Baldwin C i r c u i t Court, DR-05-1062;
Court o f C i v i l Appeals, 2060807)
BOLIN,
J u s t i c e .
The w r i t o f c e r t i o r a r i i s q u a s h e d .
1071413
I n q u a s h i n g t h e w r i t o f c e r t i o r a r i ,
t h i s C o u r t d o e s n o t
w i s h t o be u n d e r s t o o d as a p p r o v i n g a l l
t h e l a n g u a g e ,
r e a s o n s ,
o r
s t a t e m e n t s o f l a w i n
t h e C o u r t o f C i v i l A p p e a l s '
o p i n i o n .
H o r s l e y v . H o r s l e y , 291 A l a . 782, 280 So. 2d 155 ( 1 9 7 3 ) .
WRIT QUASHED.
Cobb, C . J . , a n d W o o d a l l , S t u a r t , S m i t h , P a r k e r , M u r d o c k ,
and Shaw, J J . , c o n c u r .
2 | November 20, 2009 |
71a594ab-2c8c-4903-ba6f-8ad17273236b | Ex parte Directory Assistants, Inc. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Directory Assistants, Inc. v. Cooke, Cameron, Travis and Company, P.C.) | N/A | 1080852 | Alabama | Alabama Supreme Court | REL: 11/25/2009
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
____________________
1080852
____________________
Ex parte Directory Assistants, Inc.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Directory Assistants, Inc.
v.
Cooke, Cameron, Travis and Company, P.C.)
(Jefferson Circuit Court, CV-07-902773;
Court of Civil Appeals, 2080256)
STUART, Justice.
Cooke, Cameron, Travis and Company, P.C. ("CCT"), sued
Directory Assistants, Inc., a Connecticut corporation, in the
1080852
2
Jefferson Circuit Court seeking a judgment declaring void a
contract between CCT and Directory Assistants because, CCT
alleged,
Directory Assistants
was
not
qualified to do business
in Alabama at the time the contract was executed. Directory
Assistants filed a limited appearance in the trial court for
the sole purpose of moving the trial court to dismiss the
action based on a provision in the disputed contract providing
that disputes between it and CCT would be resolved through
arbitration. After the trial court denied Directory
Assistants' motion to dismiss and ordered it to file an answer
to CCT's complaint, Directory Assistants appealed to this
Court.
On November 21, 2008, this Court issued a show cause
order, stating:
"A copy of the record on appeal having been
submitted and considered by this Court, and it
appearing that the appeal may be from an order that
is not appealable, the appellant is directed to
provide this Court, in writing, within 10 days, its
reasons why this appeal should not be dismissed.
[Directory Assistants] is specifically directed to
address whether the trial court's order dated April
3, 2008 (record at page 60), incorrectly showing
Erik L. Kuselias as the defendant, is a denial of
its motion to compel arbitration and is an
appealable order pursuant to Rule 4(d), Alabama
Rules of Appellate Procedure. The appellee, Cooke,
Cameron, Travis and Company, P.C., may file a
1080852
Pursuant to § 12-2-7(6), Ala. Code 1975, this Court may
1
transfer to the Court of Civil Appeals certain civil cases for
determination by that court.
3
response within seven days after the filing of
[Directory Assistants'] arguments."
Consistent with this order, Directory Assistants filed an
answer on December 1, 2008, and CCT filed its response on
December 8, 2009. On December 17, 2008, this Court
transferred the appeal to the Court of Civil Appeals.
1
On March 25, 2009, the Court of Civil Appeals dismissed
Directory Assistants' appeal with an order, Directory
Assistants, Inc. v. Cooke, Cameron, Travis & Co., P.C. (No.
2080256, March 25, 2009), ___ So. 3d ___ (Ala. Civ. App. 2009)
(table), stating:
"It appearing to the court that the appeal is
taken from an order of the trial court denying a
motion to dismiss, rather than an order granting or
denying a motion to compel arbitration, and that
the order is, therefore, an interlocutory order
rather than a final judgment or order that will
support appellate review under Ala. Code 1975, § 12-
22-2, or Rule 4(d), Ala. R. App. P., see Ex parte
Troutman Sanders, LLP, 866 So. 2d 547, 549 (Ala.
2003), and Ex parte Walker Regional Med. Ctr., Inc.,
825 So. 2d 741, 744 n.1 (Ala. 2001)(holding that
Rule 4(d), Ala. R. App. P., 'would not encompass' an
order deferring a ruling on a motion to compel
arbitration until after discovery could take place);
1080852
In fact, Directory Assistants asserts that the issues
2
raised by CCT in its complaint have already been the subject
of
an
arbitration
proceeding
that
was
conducted
in
Connecticut.
Directory
Assistants
asserts
that
CCT
participated
in
that
arbitration;
CCT
denies
participation
and
states that its involvement in that arbitration consisted of
only
one
letter
it
wrote
to
the
alternative-dispute-resolution
agency. Ultimately, that arbitration produced a judgment in
favor of Directory Assistants and against CCT in the amount of
$33,421.32.
4
"It is therefore ORDERED that the appeal be
dismissed."
Pursuant to Rule 39(a)(1)(D), Ala. R. App. P., Directory
Assistants then petitioned this Court for a writ of
certiorari, arguing that the order of the Court of Civil
Appeals dismissing its appeal was in conflict with previous
decisions of this Court. On June 9, 2009, we granted
Directory Assistants' petition. We now reverse and remand.
Directory Assistants argues that the trial court's denial
of its motion to dismiss is tantamount to a denial of a motion
to compel arbitration because, it says, the ground for the
motion, which the trial court clearly understood, was that the
issues raised in CCT's complaint were subject to mandatory
arbitration pursuant to the unambiguous terms of the contract
between the parties. Because Rule 4(d), Ala. R. App. P.,
2
specifically provides that an order denying a motion to compel
1080852
5
arbitration is appealable as a matter of right, Directory
Assistants argues that the Court of Civil Appeals erred by
dismissing its appeal. We agree.
On the first page of the motion to dismiss Directory
Assistants filed with the trial court, Directory Assistants
stated that the purpose of the motion was to prevent the
litigation of the issues raised by CCT "because they are
subject to mandatory arbitration." Moreover, the heading of
Directory
Assistants'
first
argument
in
that
motion
was
"CCT's
claims, if viable at all, are subject to arbitration and
therefore must be dismissed by this court." Directory
Assistants then argued that "the 'arising out of or relating
to' language of the [Directory Assistants]/CCT contract is
broad enough to encompass and require arbitration of CCT's
claims brought in this lawsuit ...." Directory Assistants
concluded its motion by stating that "[CCT's] claims as
brought herein, if viable, are subject to arbitration."
The purpose of Directory Assistants' motion was not lost
on the trial court; its order denying that motion acknowledged
that "[CCT] contends (1) [Directory Assistants'] claims are
subject to arbitration ...." Accordingly, the trial court's
1080852
6
order denying Directory Assistants' motion to dismiss CCT's
case was a rejection of Directory Assistants' argument that
CCT's
claims
were
subject
to
mandatory
arbitration.
Importantly, the trial court's order did not merely defer a
decision on whether arbitration was appropriate; rather, it
effectively denied
Directory
Assistants its
right
to
arbitration and ordered it to file an answer and to litigate
the case. Thus, the circumstances in this case are different
from those in Ex parte Walker Regional Medical Center, Inc.,
825 So. 2d 741, 744 n.1 (Ala. 2001), in which this Court
stated:
"The provisions of Rule 4(d)[, Ala. R. App. P.,]
would not encompass the order entered by the trial
judge in this case ... because the trial court had
not ruled on the motion to compel arbitration. If
a party desires appellate review of a trial court's
order continuing a motion to compel arbitration in
order to permit discovery, whether the order was
entered before or after the effective date of Rule
4(d), a petition for a writ or mandamus would be the
appropriate vehicle in such a case."
Accordingly,
because
the
trial
court's
order
denying
Directory
Assistants' motion to dismiss was effectively a denial of a
motion to compel arbitration and because such an order is
appealable as a matter of right pursuant to Rule 4(d), Ala. R.
App. P., the Court of Civil Appeals erred by dismissing the
1080852
7
appeal
filed
by
Directory
Assistants.
Therefore,
its
judgment
is reversed and this cause is remanded for further proceedings
consistent with this opinion.
REVERSED AND REMANDED.
Cobb, C.J., and Lyons, Woodall, Smith, Bolin, Parker,
Murdock, and Shaw, JJ., concur. | November 25, 2009 |
69d106ed-5405-414b-a246-b10e616505d3 | Wilson Lamar Frazier v. Core Industries, Inc. | N/A | 1060016 | Alabama | Alabama Supreme Court | REL: 12/04/2009
Notice: T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e
advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e
Reporter of
Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741 ((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may
be
made b e f o r e
t h e o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1060016
Wilson Lamar F r a z i e r
v.
Core I n d u s t r i e s , Inc.
Appeal from Mobile C i r c u i t
Court
(CV-05-2151)
MURDOCK,
J u s t i c e .
T h i s c a s e i n v o l v e s c l a i m s b y W i l s o n Lamar F r a z i e r a g a i n s t
C o r e I n d u s t r i e s , I n c .
( " C o r e " ) , u n d e r t h e
J o n e s A c t , 46
U.S.C.
1060016
§ 6 8 8 ,
1
a n d a l s o
e n t a i l s
c o n s i d e r a t i o n o f t h e L o n g s h o r e a n d
H a r b o r W o r k e r s ' C o m p e n s a t i o n A c t ("LHWCA"), 3 3 U.S.C. § 901
e t
s e q .
2
F r a z i e r a p p e a l s f r o m a summary j u d g m e n t
e n t e r e d b y
t h e
M o b i l e
C i r c u i t C o u r t i n f a v o r o f C o r e .
We
a f f i r m .
I .
F a c t s a n d P r o c e d u r a l
H i s t o r y
The
t r i a l
c o u r t made t h e f o l l o w i n g
f a c t u a l
f i n d i n g s ,
w h i c h F r a z i e r does n o t d i s p u t e :
" 1 .
C o r e i s
i n
t h e b u s i n e s s o f o f f l o a d i n g o r
u n l o a d i n g
m a t e r i a l s a n d e q u i p m e n t
f r o m b a r g e s a n d
s h i p s t o l a n d .
[ F r a z i e r ] b e g a n w o r k i n g f o r
C o r e i n
l a t e - 2 0 0 3 , e a r l y - 2 0 0 4 . [ F r a z i e r ]
t e s t i f i e d
t h a t he
was
h i r e d
d i r e c t l y b y Morgan M y l e s a n d J o h n W a t s o n ,
e m p l o y e e s o f C o r e .
[ F r a z i e r ]
a l s o
c l a i m s
t h a t he
was
an e m p l o y e e
o f P i n n a c l e
Management
S e r v i c e s
( ' P i n n a c l e ' ) .
The r e c o r d s on
f i l e
i n d i c a t e
t h a t
C o r e l e a s e d t h e s e r v i c e s o f [ F r a z i e r ] f r o m
P i n n a c l e
and
t h a t
[ F r a z i e r ]
r e c e i v e d
h i s p a y c h e c k
f r o m
P i n n a c l e .
C o r e h i r e d
[ F r a z i e r ] t o w o r k as a w e l d e r
and
p a i d
h i m
s k i l l e d
w e l d e r ' s
p a y , w h i c h
was
c o n s i d e r a b l y
h i g h e r
t h a n what C o r e
p a i d t h e c r e w s
t h a t r e g u l a r l y w o r k e d i n i t s o f f l o a d i n g
o p e r a t i o n .
"2.
[ F r a z i e r ' s ]
f i r s t
j o b f o r C o r e
was
' [ p ] u t t i n g
a
t a i l
on a
b a r g e ' b y w e l d i n g two
s e c t i o n s
o f a b a r g e
t o g e t h e r .
The b a r g e
t h a t
1 I n 2 0 0 6 , t h e J o n e s A c t
was amended a n d r e n u m b e r e d as 46
U.S.C. § 3 0 1 0 4 .
2 " T h e
J o n e s A c t p r o v i d e s
t o r t
r e m e d i e s
t o
s e a - b a s e d
m a r i t i m e
w o r k e r s ,
w h i l e
t h e LHWCA
p r o v i d e s
w o r k e r s '
c o m p e n s a t i o n t o l a n d - b a s e d m a r i t i m e e m p l o y e e s . "
S t e w a r t v .
D u t r a C o n s t r . Co., 543 U.S. 4 8 1 ,
488 ( 2 0 0 5 ) .
"The LHWCA a n d
t h e
J o n e s A c t
a r e ' m u t u a l l y e x c l u s i v e ' " c o m p e n s a t i o n s c h e m e s .
H a r b o r Tug & B a r g e Co. v . P a p a i , 520 U.S. 5 4 8 ,
553 ( 1 9 9 7 ) .
2
1060016
[ F r a z i e r ] was w o r k i n g on was ' d o c k e d up t o t h e s i d e
o f t h e d o c k ' i n t h e T h e o d o r e
I n d u s t r i a l C a n a l .
The
b a r g e was a n c h o r e d so i t
w o u l d n o t s h i f t o r move i n
t h e w a t e r .
[ F r a z i e r ] w o r k e d on t h i s p r o j e c t f o r s i x
t o e i g h t w e e k s .
"3.
D u r i n g t h e b a r g e
c o n s t r u c t i o n
p r o j e c t ,
[ F r a z i e r ] w o u l d go home e v e r y n i g h t
a f t e r w o r k and
w o u l d come b a c k i n t h e m o r n i n g .
[ F r a z i e r ] d i d
n o t
e a t o r s l e e p on t h e b a r g e .
The b a r g e d i d
n o t h a v e
a b a t h r o o m o r l i v i n g q u a r t e r s , i t
was ' j u s t a p l a i n
b a r g e . '
[ F r a z i e r ] c o u l d g e t on and o f f t h e b a r g e
s i m p l y by u s i n g a w a l k w a y t h a t c o n n e c t e d t h e b a r g e
t o t h e d o c k .
The b a r g e d i d n o t h a v e an e n g i n e ,
n a v i g a t i o n a l e q u i p m e n t , o r any means o f p r o p u l s i o n .
"4.
[ F r a z i e r ] c l a i m s
t h a t w h i l e he was w o r k i n g
on t h i s b a r g e , he s l i p p e d w h i l e
c a r r y i n g a p i e c e o f
s t e e l
o n t o t h e b a r g e .
[ F r a z i e r ]
a l l e g e s
t h a t he
h u r t h i s
b a c k when he s l i p p e d and f e l l on t h e b a r g e .
[ F r a z i e r ] d i d n o t s e e k m e d i c a l t r e a t m e n t f o l l o w i n g
t h e
a c c i d e n t and c o n t i n u e d
t o w o r k f o r C o r e .
"5.
A f t e r
t h e b a r g e
c o n s t r u c t i o n
p r o j e c t ,
[ F r a z i e r ' s ]
n e x t p r o j e c t f o r C o r e was t o r e p a i r a
c r a n e
t h a t h a d ' r u s t e d o u t . ' T h i s
r e p a i r j o b was
done
on
l a n d .
D u r i n g
t h i s
same
t i m e
f r a m e ,
[ F r a z i e r ]
a l s o
h e l p e d
C o r e
i n s t a l l
c e r t a i n
e q u i p m e n t ,
i n c l u d i n g a c o n v e y o r , on t h e b a r g e
t h a t
he h a d h e l p e d b u i l d .
When he was
i n s t a l l i n g t h e
c o n v e y o r , t h e b a r g e was ' s p u d d e d down and t i e d [ t o
t h e
d o c k ] . '
[ 3 ]
D u r i n g
t h i s
t i m e ,
[ F r a z i e r ]
was
s t i l l
w o r k i n g d u r i n g
t h e d a y and r e t u r n i n g t o
h i s
h o u s e e v e r y
n i g h t .
3 S p u d s a r e v e r t i c a l s t e e l s h a f t s t h a t c a n be l o w e r e d f r o m
a b a r g e t o h o l d i t
i n p l a c e .
3
1060016
"6.
[ F r a z i e r ' s ] n e x t j o b f o r
C o r e was b u i l d i n g
a h o p p e r .
[ 4 ]
[ F r a z i e r ]
h e l p e d b u i l d t h e h o p p e r on
C o r e ' s d o c k i n T h e o d o r e ,
w h i c h i s ' o n l a n d . '
T h i s
p r o j e c t
t o o k
a p p r o x i m a t e l y a month
a n d a
h a l f .
[ F r a z i e r ]
t h e n
b u i l t
a new s e t o f s p u d s
f o r t h e
b a r g e
t h a t he h a d w o r k e d on when he
f i r s t
s t a r t e d
w i t h C o r e .
T h i s p r o j e c t was a l s o done on l a n d .
I t
t o o k [ F r a z i e r ] a p p r o x i m a t e l y t h r e e weeks t o c o m p l e t e
t h e
s p u d s .
"7.
[ F r a z i e r ' s ] n e x t j o b f o r
C o r e was w e l d i n g
new l e g s on a h o p p e r , w h i c h was a l s o done on l a n d .
[ F r a z i e r ] c l a i m s t h a t he s u f f e r e d a s e c o n d
a c c i d e n t
w h i l e
he
was
w e l d i n g
t h e
l e g s
on
t h e
h o p p e r .
[ F r a z i e r ] c l a i m s t h a t he h a d f i n i s h e d w i t h h i s w e l d
and
was
l o o k i n g
f o r a
c h i p p i n g
hammer
when
he
a c c i d e n t a l l y s t e p p e d o f f
t h e e n d o f a s c a f f o l d b o a r d
and
f e l l t o t h e g r o u n d .
[ F r a z i e r ] c o n t i n u e d w o r k i n g
t h a t d a y and d i d n o t s e e k m e d i c a l a t t e n t i o n as a
r e s u l t o f t h e a c c i d e n t .
[ F r a z i e r ]
c l a i m s t h a t he
i n j u r e d h i s b a c k and l e g
i n t h i s
a c c i d e n t .
"8.
[ F r a z i e r ' s ] n e x t j o b f o r
C o r e was c h a n g i n g
p i p e s ,
h o s e s , a n d h y d r a u l i c
l i n e s on a c r a n e
t h a t
was on a b a r g e .
The b a r g e was a n c h o r e d a t C o r e ' s
S a r a l a n d
f a c i l i t y .
T h i s j o b t o o k f o u r o r f i v e d a y s .
"9.
A f t e r w o r k i n g on t h e c r a n e , [ F r a z i e r ] n e x t
b u i l t ramps t h a t w o u l d a l l o w dump t r u c k s t o p u l l up
t o t h e b a r g e s f o r
e a s e o f l o a d i n g .
[ F r a z i e r ]
b u i l t
t h e
ramps
i n C o r e ' s
m e c h a n i c
shop
i n
S a r a l a n d .
[ F r a z i e r ] s p e n t t h r e e weeks b u i l d i n g t h e ramps.
"10.
[ F r a z i e r ]
c l a i m s
t h a t
w h i l e
he
was
b u i l d i n g t h e ramps, he h a d t o h e l p
s h i f t one b a r g e
down
t h e b a n k
a t
C o r e ' s
f a c i l i t y
i n
S a r a l a n d .
[ F r a z i e r ]
t e s t i f i e d t h a t C o r e e m p l o y e e s u s e d a c r a n e
t o
move t h e b a r g e and he h e l p e d s e c u r e t h e b a r g e
4 A c c o r d i n g t o t h e t r i a l
c o u r t ' s
o r d e r ,
" [ a ] h o p p e r i s
r e p o r t e d
t o be a f u n n e l - s h a p e d r e c e p t a c l e
f o r d e l i v e r i n g
m a t e r i a l s u c h a s g r a i n o r c o a l . "
4
1060016
when i t was moved t o t h e p r o p e r p o s i t i o n .
The b a r g e
t h a t was moved d i d
n o t have an e n g i n e o r any f o r m o f
p r o p u l s i o n , d i d n o t h a v e r u d d e r s o r k e e l s , and
d i d
n o t h a v e n a v i g a t i o n a l
l i g h t s .
" 1 1 .
[ F r a z i e r ] o r d i n a r i l y w o r k e d f r o m 6:30 a.m.
t o
3:30 p.m.
f o r C o r e ,
w i t h
an h o u r
f o r l u n c h .
[ F r a z i e r ]
d i d n o t o r d i n a r i l y
t a k e h i s m e a l s
on a
b o a t and w o u l d r e t u r n t o h i s
home e v e r y n i g h t
a f t e r
w o r k .
"12.
W h i l e
[ F r a z i e r ]
s p e n t some t i m e on b a r g e s
f o r C o r e d o i n g w e l d i n g t a s k s s u c h as r e p a i r i n g ramps
o r
f i x i n g
h o p p e r s , he was n e v e r on a b a r g e when i t
was
b e i n g
p u s h e d
b y
a
t o w b o a t
and
was
o n l y
o c c a s i o n a l l y on b a r g e s when t h e y were moved
w i t h
c r a n e s .
The
f a r t h e s t
d i s t a n c e
[ F r a z i e r ]
e v e r
t r a v e l e d when a b a r g e was b e i n g moved b y a c r a n e was
a r o u n d 500 y a r d s , w h i c h t o o k a p p r o x i m a t e l y an h o u r
t o move.
[ 5 ]
"13. W h i l e
[ F r a z i e r ]
t e s t i f i e d
t h a t he d i d
some
' d e c k h a n d ' w o r k f o r C o r e , he d e f i n e d a d e c k h a n d as
a ' l a b o r e r . '
As a l a b o r e r ,
[ F r a z i e r ]
s a i d he w o u l d
' r u n
a s h o v e l , ' g r e a s e a c r a n e , o r ' w h a t e v e r
n e e d s
t o
be d o n e . '
E v e n when
[ F r a z i e r ] was p e r f o r m i n g
' d e c k h a n d '
d u t i e s
(as he d e s c r i b e d
t h e m ) ,
he was
a r r i v i n g
a t
t h e j o b
s i t e
i n t h e
m o r n i n g
and
r e t u r n i n g t o h i s home a t n i g h t .
[ F r a z i e r ]
n e v e r
r o d e on a b a r g e o u t o f town and t e s t i f i e d
t h a t t h e
b a r g e s
he
w o r k e d
on
were
n o t
d e s i g n e d
f o r
n a v i g a t i o n , t h e y were w o r k p l a t f o r m s .
"14.
On one o c c a s i o n ,
[ F r a z i e r ] h a d t o r e p a i r
t h e
c o n v e y o r on a b a r g e
t h a t was i n D e s t i n .
To do
t h i s ,
he l o a d e d h i s own
t r u c k
w i t h
e q u i p m e n t
and
d r o v e t o D e s t i n .
He d i d
n o t s p e n d t h e n i g h t on t h e
5 F r a z i e r made a p p r o x i m a t e l y 40 " t r i p s " on C o r e b a r g e s t h a t
were
p u l l i n g
t h e m s e l v e s
a l o n g t h e s h o r e l i n e
u s i n g a
c r a n e
d u r i n g h i s a p p r o x i m a t e l y 18 months o f e m p l o y m e n t w i t h
C o r e .
These
" t r i p s "
l a s t e d b e t w e e n 30 m i n u t e s and an h o u r
e a c h .
5
1060016
b a r g e .
When [ F r a z i e r ] was w o r k i n g on e q u i p m e n t on
a b a r g e
t h a t was i n an o f f l o a d i n g
o p e r a t i o n , t h e
b a r g e
w o u l d
o r d i n a r i l y be a n c h o r e d down
w i t h t h e
s p u d s i n t h e down p o s i t i o n , and t h e b a r g e w o u l d
a l s o
be moored o r t i e d t o t h e d o c k .
" 1 5 .
[ F r a z i e r ]
d o e s
n o t h o l d
a n y m a r i t i m e
l i c e n s e s .
[ F r a z i e r ] h a s n e v e r w o r k e d as a c a p t a i n
o r a p i l o t , and h a s n e v e r w o r k e d as a d e c k h a n d on a
b o a t i n n a v i g a t i o n .
[ F r a z i e r ] h a s n e v e r
r e c e i v e d
a n y n a v i g a t i o n a l t r a i n i n g o r m a n - o v e r b o a r d
t r a i n i n g .
[ F r a z i e r ] h a s n e v e r w o r k e d on b a r g e
t h a t h a s b e e n
o p e r a t e d b y some k i n d o f p r o p u l s i o n , o t h e r t h a n a
c r a n e m o v i n g a b a r g e down t h e s h o r e l i n e .
O t h e r t h a n
t h e
b a r g e
t h a t
he
b u i l t
when
he
f i r s t
s t a r t e d
w o r k i n g f o r
C o r e , [ F r a z i e r ] was n o t a s s i g n e d t o a n y
one b a r g e .
" 1 6 .
[ F r a z i e r ] w o u l d n o r m a l l y r e p o r t t o w o r k a t
C o r e ' s m e c h a n i c shop i n
S a r a l a n d .
[ F r a z i e r ] c a r r i e d
some o f h i s own e q u i p m e n t when he w o r k e d f o r C o r e ,
w h i c h i n c l u d e d hand
t o o l s , h a m m e r s , c h i s e l s ,
s a f e t y
g l a s s e s , a w e l d i n g h o o d , b u r n i n g
g o g g l e s , g l o v e s ,
w r e n c h e s ,
and
p l y e r s
[ s i c ] .
C o r e
f u r n i s h e d
[ F r a z i e r ] w i t h a w e l d i n g m a c h i n e , w e l d i n g r o d s , and
a t o r c h and g a s .
"17.
[ F r a z i e r ]
c l a i m s
t h a t
he h a d a
t h i r d
a c c i d e n t w h i l e w o r k i n g f o r
C o r e when he was i n G u l f
S h o r e s h e l p i n g a c o - w o r k e r c h a n g e o u t a b u c k e t on a
c r a n e .
B e f o r e c h a n g i n g o u t t h e b u c k e t ,
[ F r a z i e r ]
was
h e l p i n g t h e c o - w o r k e r , who was
o p e r a t i n g t h e
c r a n e , p u t t h e s p u d s
on t h e b a r g e
i n t o
t h e down
p o s i t i o n .
[ F r a z i e r ]
s a i d
t h a t when he was
p u l l i n g
on a r o p e t o g e t t h e b a r g e i n t o p o s i t i o n t o d r o p t h e
s p u d s , he s l i p p e d and h u r t h i s b a c k .
[ 6 ]
A f t e r t h e
s p u d s
were
p u t
i n t o
p l a c e ,
[ F r a z i e r ]
and t h e
6 F r a z i e r a n d t h e c o w o r k e r w e r e
a t t e m p t i n g t o p u l l t h e
b a r g e up a g a i n s t a d o c k a n d w e r e a f e w f e e t f r o m t h e d o c k when
F r a z i e r
s l i p p e d .
6
1060016
c o - w o r k e r c h a n g e d o u t
t h e
b u c k e t s on l a n d .
[ F r a z i e r ]
s a i d he was on t h e
b a r g e f o r a b o u t 35 m i n u t e s .
"18.
[ F r a z i e r ' s ] w o r k c o n s i s t e d
p r i m a r i l y o f
b a r g e
r e p a i r a n d c o n s t r u c t i o n a n d r e l a t e d
w e l d i n g
s e r v i c e s .
[ F r a z i e r ]
t e s t i f i e d
t h a t i n a d d i t i o n t o
b a r g e c o n s t r u c t i o n a n d r e p a i r , t h e r e were
o c c a s i o n s
where he h a d t o m a n e u v e r a n d moor b a r g e s .
[ F r a z i e r ]
a l s o
t e s t i f i e d
t h a t
i n h i s e s t i m a t i o n , he
s p e n t
a p p r o x i m a t e l y s i x t y - f i v e p e r c e n t o f h i s t i m e w o r k i n g
on
b a r g e s .
"19.
[ F r a z i e r ]
c l a i m s
t h a t he s u f f e r e d
t h r e e
s u c c e s s i v e
i n j u r i e s
w h i l e
w o r k i n g f o r
C o r e , two
o f
w h i c h
o c c u r r e d
w h i l e he was w o r k i n g on o r a r o u n d
b a r g e s .
[ F r a z i e r ]
f i l e d
a L o n g s h o r e
a n d H a r b o r
W o r k e r s '
C o m p e n s a t i o n A c t ( h e r e i n a f t e r 'LHWCA' o r
' l o n g s h o r e ' )
c l a i m
a g a i n s t
P i n n a c l e
Management
S e r v i c e s
r e l a t i n g t o t h e same t h r e e
a c c i d e n t s
t h a t
a r e
a t
i s s u e
i n t h i s
c a s e .
[ F r a z i e r ]
r e c e n t l y
s e t t l e d h i s l o n g s h o r e c l a i m a g a i n s t
P i n n a c l e a n d i s
now
r e c e i v i n g l o n g s h o r e b e n e f i t s f r o m
P i n n a c l e . "
7
7 T h e r e c o r d on a p p e a l c o n t a i n s a l e t t e r f r o m an a t t o r n e y
f o r
P i n n a c l e Management S e r v i c e s
c o n c e r n i n g F r a z i e r ' s LHWCA
c l a i m
a g a i n s t
P i n n a c l e .
I n t h e l e t t e r , P i n n a c l e
c o n f i r m e d
t h a t i t
was i n i t i a t i n g t h e p a y m e n t o f b e n e f i t s t o F r a z i e r
u n d e r t h e
LHWCA a n d t h a t i t was a g r e e i n g
f o r t h e
m a t t e r t o
be
" r e m a n d e d
f r o m t h e A d m i n i s t r a t i v e
Law J u d g e
b a c k t o t h e
[ U n i t e d S t a t e s ] D e p a r t m e n t o f
L a b o r . " I n h i s a p p e l l a t e
b r i e f ,
F r a z i e r
r e f e r s
t o t h i s
l e t t e r
a s t h e a g r e e m e n t
w h e r e b y
P i n n a c l e a c c e p t e d h i s LHWCA c l a i m .
F r a z i e r s t a t e s t h a t " [ t ] h e
a g r e e m e n t was l a t e r m e m o r i a l i z e d i n
a C o u r t o r d e r b y J u d g e L e e
Romero, o f
t h e
O f f i c e o f A d m i n i s t r a t i v e Law J u d g e s , a f t e r
t h e
n o t i c e o f a p p e a l [ i n t h e p r e s e n t c a s e ] was f i l e d . "
( F r a z i e r ' s
b r i e f , a t 14.) I n a n o t h e r p a r t o f h i s b r i e f ,
F r a z i e r
s t a t e s
t h a t LHWCA " [ b ] e n e f i t s w e r e a w a r d e d a n d [ h e ]
i s c u r r e n t l y
r e c e i v i n g t h e
same."
( F r a z i e r ' s b r i e f , a t
11.)
The p a y m e n t o f b e n e f i t s u n d e r t h e
LHWCA d o e s n o t p r e c l u d e
a p e r s o n f r o m
f i l i n g a c l a i m u n d e r t h e J o n e s
A c t .
7
1060016
" I t
i s b y now
' u n i v e r s a l l y
a c c e p t e d '
t h a t
an
e m p l o y e e who r e c e i v e s v o l u n t a r y p a y m e n t s u n d e r t h e
LHWCA w i t h o u t a f o r m a l
a w a r d i s n o t b a r r e d
f r o m
s u b s e q u e n t l y
s e e k i n g
r e l i e f
u n d e r t h e J o n e s A c t .
T h i s i s
s o , q u i t e o b v i o u s l y , b e c a u s e t h e
q u e s t i o n o f
c o v e r a g e h a s n e v e r
a c t u a l l y b e e n
l i t i g a t e d .
The
LHWCA c l e a r l y d o e s n o t c o m p r e h e n d s u c h a p r e c l u s i v e
e f f e c t , as i t s p e c i f i c a l l y p r o v i d e s t h a t a n y amounts
p a i d t o
an e m p l o y e e
f o r t h e
same i n j u r y ,
d i s a b i l i t y ,
o r d e a t h p u r s u a n t t o
t h e
J o n e s A c t s h a l l be c r e d i t e d
a g a i n s t a n y l i a b i l i t y i m p o s e d b y t h e
LHWCA."
S o u t h w e s t
M a r i n e ,
I n c . v .
G i z o n i ,
502 U.S. 8 1 , 91-92
( 1 9 9 1 ) ( c i t a t i o n s o m i t t e d ; e m p h a s i s a d d e d ) ; s e e a l s o 33 U.S.C.
§ 9 1 4 ( a )
( p r o v i d i n g f o r t h e
p a y m e n t o f c o m p e n s a t i o n u n d e r t h e
LHWCA
" w i t h o u t an a w a r d ,
e x c e p t
w h e r e
l i a b i l i t y
t o p a y
c o m p e n s a t i o n i s c o n t r o v e r t e d b y t h e e m p l o y e r " ) ; 33 U.S.C. §
9 3 3 ( b ) ( " [ T ] h e
t e r m ' a w a r d '
w i t h
r e s p e c t t o a
c o m p e n s a t i o n
o r d e r means a f o r m a l o r d e r i s s u e d b y t h e
d e p u t y c o m m i s s i o n e r ,
an
a d m i n i s t r a t i v e
l a w j u d g e ,
o r [ t h e B e n e f i t s
R e v i e w ]
B o a r d . " ) ; a n d 33 U.S.C. § 9 1 9 ( e ) ( n o t i n g t h a t a " c o m p e n s a t i o n
o r d e r " i s " [ t ] h e
o r d e r
r e j e c t i n g t h e c l a i m o r m a k i n g t h e
a w a r d " ) .
T h e r e i s
d i s a g r e e m e n t among t h e f e d e r a l
c i r c u i t s
w h e t h e r
a p a r t y may p u r s u e a J o n e s A c t
c l a i m a f t e r a " f o r m a l " a w a r d o f
b e n e f i t s
u n d e r
t h e LHWCA.
Compare
F i g u e r o a v .
C a m p b e l l
I n d u s . , 45 F . 3 d
311, 315 ( 9 t h C i r .
1 9 9 5 ) ( n o t i n g t h a t , a l t h o u g h
t h e
LHWCA a n d t h e J o n e s A c t " a r e ' m u t u a l l y e x c l u s i v e , ' some
m a r i t i m e w o r k e r s may be J o n e s A c t
seamen who a r e
i n j u r e d w h i l e
a l s o p e r f o r m i n g a j o b s p e c i f i c a l l y e n u m e r a t e d u n d e r t h e
LHWCA,
and, t h e r e f o r e , a r e
e n t i t l e d t o r e c o v e r y u n d e r b o t h
s t a t u t e s ,
a l t h o u g h d o u b l e r e c o v e r y o f
a n y
damage e l e m e n t i s p r e c l u d e d " ) ,
w i t h S h a r p v . J o h n s o n B r o s . C o r p . , 973 F . 2 d
4 2 3 , 426-27
( 5 t h
C i r .
1 9 9 2 ) ( " T h e LHWCA was n o t
d e s i g n e d t o c r e a t e a mere s a f e t y
n e t ,
g u a r a n t e e i n g w o r k e r s a minimum a w a r d as t h e y s e e k g r e a t e r
r e w a r d s i n
c o u r t .
R a t h e r , i t
h a s
a b e n e f i t t o e m p l o y e r s ,
t o o ,
g i v i n g them l i m i t e d a n d p r e d i c t a b l e
l i a b i l i t y i n
e x c h a n g e f o r
t h e i r
g i v i n g
up
t h e i r
a b i l i t y
t o d e f e n d
t o r t
a c t i o n s .
P e r m i t t i n g a J o n e s A c t
p r o c e e d i n g a f t e r a f o r m a l c o m p e n s a t i o n
8
1060016
The
t h i r d " a c c i d e n t " r e f e r r e d t o i n
t h e t r i a l c o u r t ' s
f a c t u a l
f i n d i n g s o c c u r r e d i n
M a r c h 2005.
I n
J u n e
2 0 0 5 ,
F r a z i e r
f i l e d
a
f o u r - c o u n t
c o m p l a i n t
a g a i n s t
C o r e .
I n c o u n t
o n e , s t y l e d
" N e g l i g e n c e , "
F r a z i e r
a l l e g e d t h a t he was "an a b l e b o d i e d seaman" a n d t h a t he
h a d
b e e n
" i n j u r e d
on o r a b o u t
M a r c h
1 1 , 2005,
when he
a t t e m p t e d
t o s e c u r e a n d d o c k b y h a n d a b a r g e t o
w h i c h he h a d b e e n a s s i g n e d .
W h i l e p u l l i n g on a d o c k
r o p e ,
[ F r a z i e r ]
s l i p p e d a n d f e l l .
As a r e s u l t o f
a w a r d h e r e w o u l d d e f e a t t h e
p u r p o s e o f t h e
LHWCA, a s w e l l a s
w o r k
u n f a i r n e s s , b e c a u s e ,
a s h e r e ,
e m p l o y e r s
o f t e n
h a v e
d i f f e r e n t i n s u r a n c e c a r r i e r s f o r w o r k e r s ' c o m p e n s a t i o n c l a i m s
a n d t o r t c l a i m s , s o t h e
c o m p e n s a t i o n i n s u r e r , b y g u a r a n t e e i n g
a minimum a w a r d , n e c e s s a r i l y w o u l d r e d u c e t h e a b i l i t y o f t h e
t o r t
i n s u r e r t o e f f e c t a s e t t l e m e n t . "
( c i t a t i o n s o m i t t e d ) ) .
A l t h o u g h
F r a z i e r ' s
b r i e f
r e f e r s t o an o r d e r
f r o m t h e
a d m i n i s t r a t i v e l a w j u d g e
" m e m o r i a l i z i n g " h i s
a g r e e m e n t w i t h
P i n n a c l e
a n d a l t h o u g h he s t a t e s
t h a t
b e n e f i t s h a v e
b e e n
" a w a r d e d " t o h i m ,
t h e r e c o r d on a p p e a l d o e s n o t c o n t a i n t h e
o r d e r o r o r d e r s r e f l e c t i n g t h e s e e v e n t s , w h i c h o c c u r r e d
a f t e r
F r a z i e r
f i l e d h i s n o t i c e o f a p p e a l i n
t h e
p r e s e n t c a s e .
Thus,
we a r e
n o t
p r i v y t o
t h e
t e r m s o f t h e
o r d e r o r o r d e r s , a n d , i n
p a r t i c u l a r , we h a v e no i n f o r m a t i o n c o n c e r n i n g
w h e t h e r t h e
" a w a r d " was c o n d i t i o n a l o r o t h e r w i s e made r e f e r e n c e t o
t h e
p r e s e n t c a s e .
F u r t h e r , C o r e h a s n o t a r g u e d i n i t s a p p e l l a t e
b r i e f
t h a t t h e " a w a r d " o f b e n e f i t s t o F r a z i e r
r e n d e r s h i s
c l a i m s moot.
B e c a u s e we c a n n o t c o n c l u d e b a s e d on t h e
s t a t e o f
t h e
r e c o r d a n d t h e a r g u m e n t s
b e f o r e u s t h a t
F r a z i e r h a s
r e c e i v e d a f o r m a l a w a r d o f LHWCA b e n e f i t s , we n e e d n o t , a n d
i n d e e d c a n n o t ,
a d d r e s s w h e t h e r s u c h an a w a r d w o u l d moot
h i s
c l a i m s a g a i n s t
C o r e .
9
1060016
t h e n e g l i g e n c e o f [ C o r e ] a n d / o r t h e u n s e a w o r t h i n e s s
o f t h e v e s s e l i n q u e s t i o n ,
[ F r a z i e r ] was c a u s e d t o
s u f f e r
i n j u r i e s and damage[] t o h i s b a c k . "
F r a z i e r
a l l e g e d
t h a t he s u f f e r e d damage i n e x c e s s o f $50,000
as
a
r e s u l t o f t h e
s l i p
and
f a l l ,
i n c l u d i n g
l o s t
wages,
m e d i c a l e x p e n s e s , p a i n and s u f f e r i n g , and m e n t a l
a n g u i s h .
I n
c o u n t
two,
F r a z i e r
a l l e g e d
t h a t
t h e
f o r e g o i n g
a l l e g a t i o n s
e n t i t l e d
h i m t o r e c o v e r
u n d e r t h e " s a v i n g s t o
s u i t o r s c l a u s e " o f t h e J o n e s A c t , 46 U.S.C. § 6 8 8 ( a ) , w h i c h a t
a l l
r e l e v a n t
t i m e s
s t a t e d :
"Any seaman who
s h a l l
s u f f e r p e r s o n a l
i n j u r y i n t h e
c o u r s e
o f h i s e m p l o y m e n t
may,
a t h i s e l e c t i o n ,
m a i n t a i n
an
a c t i o n
f o r damages
a t l a w , w i t h
t h e
r i g h t
o f
t r i a l
b y
j u r y ,
and
i n s u c h
a c t i o n a l l
s t a t u t e s o f t h e U n i t e d
S t a t e s m o d i f y i n g o r e x t e n d i n g
t h e common-law r i g h t o r remedy i n c a s e s o f
p e r s o n a l
i n j u r y t o r a i l w a y e m p l o y e e s
s h a l l
a p p l y . "
I n c o u n t t h r e e ,
s t y l e d " S e a w o r t h i n e s s , "
F r a z i e r
a l l e g e d
t h a t
" [ t ] h e
v e s s e l
upon
w h i c h
[he]
was
i n j u r e d
was
u n s e a w o r t h y i n t h a t t h e owner o f s a i d v e s s e l
f a i l e d
t o
i n s u r e
t h a t
p r o p e r
a p p u r t e n a n c e s and
e q u i p m e n t
were a t t a c h e d
t o s a i d v e s s e l i n o r d e r t o s a f e l y d o c k
t h e same.
I n a d e q u a t e o r i m p r o p e r l y
t r a i n e d
s e r v a n t s
were
a b o a r d
s a i d
v e s s e l
a n d made
t h e
v e s s e l
i n
q u e s t i o n
u n s e a w o r t h y .
S e r v a n t s o f t h e v e s s e l
were
p r o v i d e d
i n a p p r o p r i a t e
o r i m p r o p e r p r o c e d u r e a n d / o r
p o l i c y f o r s a f e l y d o c k i n g t h e v e s s e l i n q u e s t i o n
and
as
a
r e s u l t
c a u s e d
[ F r a z i e r ' s ]
i n j u r i e s
and
d a m a g e [ ] . "
10
1060016
We n o t e t h a t " [ t ] h e ' u n s e a w o r t h i n e s s ' d o c t r i n e i s ' b a s e d upon
t h e s h i p o w n e r ' s a b s o l u t e a n d n o n d e l e g a b l e d u t y t o " f u r n i s h a
v e s s e l
a n d
a p p u r t e n a n c e s
r e a s o n a b l y f i t f o r t h e i r
i n t e n d e d
u s e . " ' "
Ex p a r t e CSX T r a n s p . , I n c . , 735 So. 2d 476, 480
n.3
( A l a .
1 9 9 9 ) ( q u o t i n g S z y m a n s k i
v.
C o l u m b i a
T r a n s p .
Co.,
154
F.3d 5 9 1 , 601 ( 6 t h C i r . 1998)
(Moore, J . , d i s s e n t i n g ) , q u o t i n g
i n
t u r n
M i t c h e l l v. T r a w l e r R a c e r ,
I n c . , 362
U.S.
539,
550
( 1 9 6 0 ) ) .
The d u t y t o p r o v i d e a s e a w o r t h y s h i p i s a d u t y owed
seamen, b u t n o t e m p l o y e e s
who
a r e c o v e r e d u n d e r
t h e LHWCA.
See Yamaha M o t o r C o r p . , U.S.A. v. C a l h o u n , 516 U.S.
199,
208
n.6
( 1 9 9 6 ) .
I n c o u n t f o u r ,
F r a z i e r a d o p t e d t h e a l l e g a t i o n s c o n t a i n e d
i n
t h e
f i r s t
t h r e e c o u n t s o f h i s c o m p l a i n t , and he
a l l e g e d
t h a t
" [ t ] h e a c t a n d / o r
a c t i o n o f
[ C o r e ] a n d / o r
[ t h e ]
v e s s e l
owner were w a n t o n a n d / o r
r e c k l e s s . "
F r a z i e r a l l e g e d
t h a t
he
was
e n t i t l e d
t o
p u n i t i v e
damages.
We
n o t e
t h a t
i t i s
u n d i s p u t e d t h a t C o r e owned t h e v e s s e l s on w h i c h F r a z i e r w o r k e d
and on w h i c h he was
a l l e g e d l y
i n j u r e d .
C o r e
f i l e d
a m o t i o n
f o r a summary j u d g m e n t
as
t o a l l
F r a z i e r ' s
c l a i m s .
C o r e
a r g u e d
t h a t
F r a z i e r ,
"a w e l d e r
by
t r a d e ,
i s n o t a J o n e s A c t seaman and h i s w o r k - r e l a t e d t o r t
11
1060016
c l a i m s a r e
b a r r e d b y t h e
e x c l u s i v i t y p r o v i s i o n s o f
t h e [LHWCA]
o r t h e
A l a b a m a W o r k e r s ' C o m p e n s a t i o n A c t . "
8
F r a z i e r f i l e d a
b r i e f o p p o s i n g C o r e ' s m o t i o n .
E a c h p a r t y
s u b m i t t e d
e x c e r p t s
f r o m F r a z i e r ' s d e p o s i t i o n i n s u p p o r t o f h i s
o r i t s p o s i t i o n ;
F r a z i e r a l s o s u b m i t t e d
c e r t a i n d o c u m e n t a r y
e v i d e n c e .
A f t e r
c o n d u c t i n g
a h e a r i n g on C o r e ' s m o t i o n , t h e t r i a l
c o u r t e n t e r e d a j u d g m e n t i n f a v o r o f C o r e a n d a g a i n s t
F r a z i e r
as t o a l l F r a z i e r ' s c l a i m s .
The j u d g m e n t
s t a t e d :
" C o r e
i s e n t i t l e d
t o summary
j u d g m e n t
f o r
t h e
f o l l o w i n g
r e a s o n s : (1) [ F r a z i e r ] d o e s n o t meet t h e
t e s t f o r
seaman s t a t u s u n d e r t h e J o n e s A c t a n d
t h e
c l a i m s i n
h i s
c o m p l a i n t
d e p e n d upon p r o o f
t h a t he
i s
a seaman e n t i t l e d t o p r o t e c t i o n u n d e r t h e
J o n e s
A c t ;
(2)
[ F r a z i e r ' s ]
c l a i m s
a r e
b a r r e d
b y
t h e
e x c l u s i v e - r e m e d y p r o v i s i o n s i n
t h e
LHWCA;
[ 9 ] (3) a n d ,
[ F r a z i e r ] i s
b a r r e d
f r o m r e c o v e r i n g u n d e r 3 3 U.S.C.
§ 9 0 5 ( b ) o f t h e LHWCA, a s s u m i n g
t h a t
s u c h a c l a i m
had
i n f a c t
b e e n
p l e d ,
b e c a u s e
[he] r e g u l a r l y
p e r f o r m e d
s h i p - b u i l d i n g a n d s h i p - r e p a i r w o r k
w h i l e
w o r k i n g f o r C o r e . "
8 S e e A l a . Code 1 9 7 5 , § 25-5-1 e t s e q .
9 T h e
t r i a l
c o u r t
c o n c l u d e d
t h a t
C o r e
was
F r a z i e r ' s
" b o r r o w i n g e m p l o y e r " f o r
p u r p o s e s o f t h e
LHWCA, s e e C o o k s v .
B e n d e r S h i p b u i l d i n g & R e p a i r Co., 833 So. 2 d 631 ( A l a . C i v .
App.
2 0 0 1 ) , a n d t h a t
F r a z i e r was an LHWCA e m p l o y e e , n o t a
J o n e s A c t
seaman.
T h u s , F r a z i e r ' s c l a i m s w e r e s u b j e c t t o t h e
e x c l u s i v e - r e m e d y p r o v i s i o n s s e t
f o r t h i n
33 U.S.C. §
9 0 5 ( a ) .
12
1060016
The LHWCA p r o v i d e s
t h a t
" [ t ] h e
l i a b i l i t y o f an e m p l o y e r
p r e s c r i b e d i n
s e c t i o n 904
o f t h i s
t i t l e
s h a l l be e x c l u s i v e a n d
i n
p l a c e
o f a l l o t h e r
l i a b i l i t y
o f s u c h
e m p l o y e r t o
t h e
e m p l o y e e . "
33 U.S.C. §
9 0 5 ( a ) .
The LHWCA
d e f i n e s
an
" e m p l o y e e " a s " a n y p e r s o n
e n g a g e d i n m a r i t i m e
e m p l o y m e n t ,
i n c l u d i n g
a n y l o n g s h o r e m a n
o r
o t h e r
p e r s o n
e n g a g e d i n
l o n g s h o r i n g
o p e r a t i o n s , a n d
a n y
h a r b o r - w o r k e r i n c l u d i n g a s h i p
r e p a i r m a n , s h i p b u i l d e r , a n d s h i p - b r e a k e r , b u t s u c h t e r m d o e s
n o t
i n c l u d e
... (G) a m a s t e r o r member o f a c r e w o f a n y
v e s s e l , "
i . e . , a seaman u n d e r t h e J o n e s A c t . 33 U.S.C. §
902 (3) ( e m p h a s i s added) . See S t e w a r t v . D u t r a C o n s t r . Co.,
543
U.S. 4 8 1 ,
488 ( 2 0 0 5 ) ; s e e a l s o W i l s o n v . Z a p a t a O f f - S h o r e Co.,
939 F . 2 d
260, 266 n.10 ( 5 t h C i r . 1 9 9 1 ) ( " T h e t e s t t o d e t e r m i n e
'member o f a c r e w '
s t a t u s u n d e r t h e [ e x c e p t i o n t o t h e t e r m
' e m p l o y e e '
u n d e r t h e ]
LHWCA i s t h e same as t h e t e s t f o r
'seaman' s t a t u s u n d e r t h e J o n e s A c t . " ) .
S e c t i o n 905(b) o f t h e
LHWCA d i s c u s s e s
c l a i m s b a s e d on an
i n j u r y " c a u s e d b y t h e
n e g l i g e n c e o f
a v e s s e l , " a n d i t p r o v i d e s
t h a t t h e i n j u r e d
p a r t y
"may b r i n g an a c t i o n a g a i n s t
s u c h v e s s e l as a t h i r d
p a r t y i n a c c o r d a n c e w i t h t h e p r o v i s i o n s o f s e c t i o n
933 o f t h i s
t i t l e , a n d t h e e m p l o y e r
s h a l l n o t be
l i a b l e t o t h e v e s s e l f o r
s u c h damages
d i r e c t l y o r
13
1060016
i n d i r e c t l y and any a g r e e m e n t s
o r w a r r a n t i e s t o t h e
c o n t r a r y
s h a l l
be
v o i d .
...
I f s u c h
p e r s o n
was
e m p l o y e d
t o
p r o v i d e
s h i p b u i l d i n g ,
r e p a i r i n g ,
o r
b r e a k i n g s e r v i c e s and s u c h p e r s o n ' s e m p l o y e r was t h e
owner,
owner
p r o h a c
v i c e ,
a g e n t ,
o p e r a t o r ,
o r
c h a r t e r e r
o f t h e v e s s e l ,
no s u c h
a c t i o n
s h a l l
be
p e r m i t t e d ,
i n w h o l e
o r
i n p a r t
o r
d i r e c t l y
o r
i n d i r e c t l y ,
a g a i n s t
t h e i n j u r e d
p e r s o n ' s
e m p l o y e r
( i n any c a p a c i t y ,
i n c l u d i n g as t h e v e s s e l ' s owner,
owner p r o h a c v i c e ,
a g e n t , o p e r a t o r , o r
c h a r t e r e r )
o r
a g a i n s t
t h e e m p l o y e e s
o f t h e e m p l o y e r .
The
l i a b i l i t y o f t h e v e s s e l u n d e r
t h i s s u b s e c t i o n
s h a l l
n o t be b a s e d upon t h e w a r r a n t y o f s e a w o r t h i n e s s o r
a b r e a c h t h e r e o f a t t h e t i m e t h e i n j u r y
o c c u r r e d .
The
remedy
p r o v i d e d
i n t h i s
s u b s e c t i o n
s h a l l
be
e x c l u s i v e o f a l l
o t h e r r e m e d i e s
a g a i n s t t h e v e s s e l
e x c e p t r e m e d i e s a v a i l a b l e u n d e r
t h i s c h a p t e r . "
( E m p h a s i s added.)
F r a z i e r
a p p e a l s .
He
a r g u e s
(1) t h a t
b a s e d
upon t h e
h o l d i n g i n C h a n d r i s , I n c . v . L a t s i s , 515 U.S. 347
( 1 9 9 5 ) , he
i s
a "seaman" f o r p u r p o s e s o f t h e J o n e s A c t , and
(2)
t h a t
b a s e d upon t h e h o l d i n g i n S t e w a r t , s u p r a , he i s " e n t i t l e d t o
t h e
b e n e f i t s
p r o v i d e d
u n d e r
t h e J o n e s A c t p u r s u a n t t o 33
U.S.C. § 905(b) o f t h e "
LHWCA, s p e c i f i c a l l y t h a t he c a n p u r s u e
a n e g l i g e n c e c l a i m a g a i n s t C o r e , as t h e v e s s e l owner, w h e t h e r
he i s deemed a l o n g s h o r e m a n o r a s e a m a n .
1 0
1 0 C o r e a r g u e s i n i t s
a p p e l l a t e b r i e f t h a t F r a z i e r
c o n c e d e d
a t t h e h e a r i n g on i t s
s u m m a r y - j u d g m e n t m o t i o n t h a t he "was a
l o n g s h o r e m a n , n o t a J o n e s A c t seaman."
( C o r e ' s b r i e f , a t 14.)
As C o r e n o t e s , h o w e v e r , t h e r e i s no t r a n s c r i p t o f t h e h e a r i n g .
F r a z i e r c o n t e n d s i n h i s r e p l y b r i e f on a p p e a l t h a t he c l a i m e d
t h a t he was a seaman, b u t he a l s o a r g u e d t h a t e v e n i f
he was
14
1060016
I I .
S t a n d a r d o f R e v i e w
The
s t a n d a r d
by w h i c h we r e v i e w a summary j u d g m e n t i s
w e l l s e t t l e d :
" T h i s C o u r t r e v i e w s a summary j u d g m e n t de n o v o .
T u r n e r v. W e s t h a m p t o n C o u r t , L.L.C., 903 So. 2d 82,
87
( A l a . 2 0 0 4 ) .
We s e e k t o d e t e r m i n e w h e t h e r t h e
movant h a s made a p r i m a
f a c i e s h o w i n g
t h a t
t h e r e
e x i s t s no g e n u i n e
i s s u e o f m a t e r i a l
f a c t and h a s
d e m o n s t r a t e d
t h a t
t h e movant
i s e n t i t l e d
t o a
j u d g m e n t as a m a t t e r o f l a w . T u r n e r ,
s u p r a . "
M u l l e r v . S e e d s , 919 So. 2d 1174, 1176 ( A l a . 2 0 0 5 ) .
See R u l e
5 6 ( c ) ( 3 ) , A l a . R. C i v . P.
As f o r d e t e r m i n i n g
w h e t h e r a
g e n u i n e i s s u e o f m a t e r i a l
f a c t e x i s t s ,
t h i s
C o u r t
"must r e v i e w t h e r e c o r d i n t h e l i g h t most
f a v o r a b l e
t o t h e n o n m o v i n g p a r t y and r e s o l v e
a l l r e a s o n a b l e
d o u b t s i n f a v o r o f t h e n o n m o v a n t .
The m o v i n g
p a r t y
has t h e b u r d e n o f m a k i n g a p r i m a f a c i e s h o w i n g
t h a t
he o r she i s e n t i t l e d t o a summary j u d g m e n t .
I f
t h e
a
l o n g s h o r e m a n he c o u l d
s t i l l
p u r s u e a c l a i m
a g a i n s t
C o r e
u n d e r 33 U.S.C. § 9 0 5 ( b ) .
C o r e a r g u e s t h a t t h e t r i a l c o u r t ' s j u d g m e n t
" s p e c i f i c a l l y
a c k n o w l e d g e s
a n d
m e m o r i a l i z e s
[ F r a z i e r ' s ]
c o n c e s s i o n . "
( C o r e ' s b r i e f , a t 14.)
A l t h o u g h t h e t r i a l
c o u r t n o t e d i n i t s
j u d g m e n t t h a t F r a z i e r c o n c e d e d t h a t he was a l o n g s h o r e m a n who
was
r e c e i v i n g LHWCA b e n e f i t s , t h i s s t a t e m e n t a p p e a r s a f t e r i t s
d e t a i l e d
f i n d i n g s o f f a c t a n d a n a l y s i s o f t h e i s s u e
w h e t h e r
F r a z i e r
q u a l i f i e d f o r
seaman s t a t u s .
The j u d g m e n t d o e s n o t
s u p p o r t t h e c o n c l u s i o n
t h a t
F r a z i e r c o n c e d e d he was o n l y a
l o n g s h o r e m a n a n d t h a t he c o u l d n o t q u a l i f y f o r
seaman s t a t u s ;
s u c h a c o n c e s s i o n
w o u l d h a v e r e n d e r e d u n n e c e s s a r y most o f
t h e
t r i a l c o u r t ' s e x t e n s i v e
f i n d i n g s o f f a c t a n d i t s d i s c u s s i o n o f
why F r a z i e r was n o t a seaman.
15
1060016
movant
s a t i s f i e s
t h i s
b u r d e n
o f p r o d u c t i o n ,
t h e
nonmovant
t h e n
b e a r s
t h e
b u r d e n
o f
p r o d u c i n g
s u b s t a n t i a l
e v i d e n c e
c r e a t i n g a g e n u i n e
i s s u e o f
m a t e r i a l
f a c t . "
R e n t z v . G r a n t ,
934 So. 2d 368, 372 ( A l a .
200
6)
( c i t i n g
A m e r i c a n Gen. L i f e & A c c . I n s .
Co. v . U n d e r w o o d , 886 So. 2d
807,
811 ( A l a . 2004)
( c i t a t i o n s
o m i t t e d ) ) . "
I I I .
A n a l y s i s
A.
Seaman s t a t u s
As t h e Supreme C o u r t n o t e d i n C h a n d r i s :
"The
f e d e r a l c o u r t s h a v e s t r u g g l e d o v e r t h e y e a r s t o
a r t i c u l a t e
g e n e r a l l y
a p p l i c a b l e
c r i t e r i a
t o
d i s t i n g u i s h
among t h e many
v a r i e t i e s o f m a r i t i m e
w o r k e r s ,
o f t e n
d e v e l o p i n g
d e t a i l e d
m u l t i p r o n g e d
t e s t s f o r seaman
s t a t u s .
S i n c e
t h e 1 9 5 0 ' s ,
t h i s
C o u r t l a r g e l y h a s l e f t d e f i n i t i o n o f t h e J o n e s
A c t ' s
s c o p e t o t h e l o w e r
c o u r t s .
U n f o r t u n a t e l y ,
as a
r e s u l t ,
' [ t ] h e
p e r i l s
o f t h e s e a , w h i c h
m a r i n e r s
s u f f e r a n d s h i p o w n e r s i n s u r e a g a i n s t , h a v e met t h e i r
m a t c h i n
t h e p e r i l s o f j u d i c i a l r e v i e w . '
O r , as one
c o u r t p a r a p h r a s e d D i d e r o t i n r e f e r e n c e t o t h i s b o d y
o f l a w : '"We h a v e made a l a b y r i n t h a n d g o t l o s t i n
i t .
We must f i n d o u r way o u t . " ' "
515
U.S. a t 356
( c i t a t i o n s
o m i t t e d ) ;
s e e a l s o
P u g e t
Sound
F r e i g h t L i n e s v . M a r s h a l l , 125 F.2d 876, 878 ( 9 t h C i r . 1 9 4 2 ) ( a
p r e - C h a n d r i s c a s e n o t i n g t h a t " [ t ] h e d e f i n i t i o n s o f 'member o f
a
c r e w ' [ u n d e r t h e LHWCA] a n d t h e t e s t s t o be a p p l i e d i n
d e t e r m i n i n g
t h e s t a t u s o f a w o r k e r , as s e t f o r t h i n d i f f e r e n t
o p i n i o n s ,
a r e so many
a n d
v a r i e d
t h a t
any
a t t e m p t
a t
16
1060016
r e c o n c i l i a t i o n
w o u l d
be
f u t i l e " ) .
T a k i n g
i n t o
a c c o u n t
t h e
s t a t u t o r y and c a s e l a w h i s t o r y t h a t gave r i s e t o t h e
l a b y r i n t h ,
h o w e v e r ,
and
more
r e c e n t
Supreme
C o u r t
p r e c e d e n t s ,
t h e
r e s o l u t i o n
o f
t h e
i s s u e w h e t h e r
F r a z i e r
m i g h t
be
a seaman
u n d e r t h e J o n e s A c t i s c l e a r .
He i s n o t .
I n M c D e r m o t t
I n t e r n a t i o n a l ,
I n c . v. W i l a n d e r ,
498
U.S.
337
( 1 9 9 1 ) , t h e Supreme C o u r t
s t a t e d :
"As
had
t h e
l o w e r
f e d e r a l
c o u r t s b e f o r e
t h e
J o n e s A c t , t h i s C o u r t c o n t i n u e d t o c o n s t r u e 'seaman'
b r o a d l y
a f t e r
t h e
J o n e s
A c t .
I n
I n t e r n a t i o n a l
S t e v e d o r i n g Co. v. H a v e r t y , 272 U.S.
50
( 1 9 2 6 ) , t h e
C o u r t h e l d t h a t a s t e v e d o r e
[ 1 1 ] i s a 'seaman' c o v e r e d
u n d e r t h e A c t when e n g a g e d i n m a r i t i m e
e m p l o y m e n t .
H a v e r t y was a l o n g s h o r e w o r k e r
i n j u r e d w h i l e s t o w i n g
f r e i g h t
i n t h e h o l d o f a d o c k e d
v e s s e l .
The
C o u r t
r e c o g n i z e d
t h a t
'as
t h e
w o r d
i s commonly
u s e d ,
s t e v e d o r e s
a r e
n o t
"seamen."'
I d . , a t
52.
'But
w o r d s
a r e
f l e x i b l e
We
c a n n o t
b e l i e v e
t h a t
C o n g r e s s
w i l l i n g l y w o u l d h a v e a l l o w e d t h e p r o t e c t i o n
t o men e n g a g e d upon t h e same m a r i t i m e d u t i e s t o v a r y
w i t h
t h e
a c c i d e n t
o f
t h e i r
b e i n g
e m p l o y e d
by
a
s t e v e d o r e r a t h e r t h a n by t h e s h i p . '
I b i d .
" C o n g r e s s
w o u l d ,
and d i d , h o w e v e r .
W i t h i n s i x
months o f t h e d e c i s i o n
i n H a v e r t y , C o n g r e s s
p a s s e d
t h e L o n g s h o r e
and
H a r b o r
W o r k e r s '
C o m p e n s a t i o n
A c t
(LHWCA),
44
S t a t .
( p a r t
2)
1424,
as
amended,
33
U.S.C. §§
9 0 1 - 9 5 0 .
The
A c t p r o v i d e s r e c o v e r y f o r
i n j u r y
t o
a
b r o a d
r a n g e
o f
l a n d - b a s e d
m a r i t i m e
w o r k e r s ,
b u t
e x p l i c i t l y
e x c l u d e s f r o m i t s c o v e r a g e
'a m a s t e r
o r member o f a c r e w o f any
v e s s e l . '
33
U.S.C.
§
9 0 2 ( 3 ) ( G ) .
T h i s
C o u r t
r e c o g n i z e d
t h e
1 1A s t e v e d o r e i s one e m p l o y e d i n t h e l o a d i n g a n d u n l o a d i n g
o f
s h i p s .
17
1060016
d i s t i n c t i o n ,
a l b e i t
b e l a t e d l y , i n Swanson v . M a r r a
B r o t h e r s ,
I n c . , 328 U.S. 1 ( 1 9 4 6 ) , c o n c l u d i n g t h a t
t h e J o n e s A c t
a n d t h e
LHWCA a r e
m u t u a l l y
e x c l u s i v e .
The LHWCA p r o v i d e s
r e l i e f f o r l a n d - b a s e d
m a r i t i m e
w o r k e r s ,
a n d t h e J o n e s
A c t i s r e s t r i c t e d
t o 'a
m a s t e r o r
member o f a c r e w o f a n y v e s s e l ' :
'We must
t a k e i t
t h a t t h e e f f e c t o f t h e s e p r o v i s i o n s o f
t h e
[LHWCA] i s
t o c o n f i n e t h e b e n e f i t s o f t h e J o n e s A c t
t o t h e members o f t h e c r e w o f a v e s s e l
p l y i n g i n
n a v i g a b l e w a t e r s a n d t o s u b s t i t u t e f o r t h e r i g h t o f
r e c o v e r y
r e c o g n i z e d b y t h e H a v e r t y
c a s e
o n l y
s u c h
r i g h t s t o c o m p e n s a t i o n as a r e
g i v e n b y t h e [LHWCA].'
I d . , a t 7.
' [ M ] a s t e r o r member o f a c r e w '
i s a
r e f i n e m e n t o f
t h e
t e r m 'seaman' i n
t h e
J o n e s A c t ;
i t
e x c l u d e s f r o m LHWCA c o v e r a g e
t h o s e p r o p e r l y c o v e r e d
u n d e r t h e J o n e s A c t .
Thus, i t i s
odd
b u t t r u e
t h a t
t h e
k e y r e q u i r e m e n t
f o r J o n e s
A c t c o v e r a g e
now
a p p e a r s i n a n o t h e r
s t a t u t e .
" W i t h
t h e p a s s a g e
o f t h e LHWCA,
C o n g r e s s
e s t a b l i s h e d a c l e a r
d i s t i n c t i o n b e t w e e n
l a n d - b a s e d
and s e a - b a s e d m a r i t i m e w o r k e r s .
The l a t t e r , who owe
t h e i r
a l l e g i a n c e t o a v e s s e l a n d n o t s o l e l y t o a
l a n d - b a s e d e m p l o y e r , a r e
seamen.
I r o n i c a l l y , on t h e
same d a y t h a t t h e C o u r t
d e c i d e d Swanson i t h a n d e d
down
Seas
S h i p p i n g Co. v . S i e r a c k i ,
328 U.S. 85
( 1 9 4 6 ) .
W i t h r e a s o n i n g r e m a r k a b l y
s i m i l a r t o t h a t
i n
H a v e r t y , t h e C o u r t
e x t e n d e d t o a s t e v e d o r e t h e
t r a d i t i o n a l
seamen's remedy o f u n s e a w o r t h i n e s s i n
t h o s e c a s e s where t h e
s t e v e d o r e ' i s d o i n g a seaman's
w o r k a n d i n c u r r i n g a seaman's h a z a r d s . '
328 U.S.,
a t 99. I t t o o k C o n g r e s s a b i t l o n g e r t o r e a c t
t h i s
t i m e .
I n 1 9 7 2 , C o n g r e s s
amended t h e LHWCA t o
b a r
l o n g s h o r e
a n d h a r b o r
w o r k e r s
f r o m
r e c o v e r y f o r
b r e a c h o f t h e d u t y o f s e a w o r t h i n e s s .
See 86 S t a t .
1263,
33 U.S.C. §
9 0 5 ( b ) ;
M i l e s v . Apex
M a r i n e
C o r p . , 498 U.S. 19, 28 ( 1 9 9 0 ) .
W h e t h e r u n d e r t h e
J o n e s A c t o r g e n e r a l m a r i t i m e l a w , seamen do n o t
i n c l u d e l a n d - b a s e d
w o r k e r s . "
498 U.S. a t 346-48.
The C o u r t c o n t i n u e d :
18
1060016
"We now r e c o g n i z e
t h a t t h e LHWCA i s one o f a
p a i r o f m u t u a l l y
e x c l u s i v e
r e m e d i a l
s t a t u t e s
t h a t
d i s t i n g u i s h
b e t w e e n
l a n d - b a s e d
a n d
s e a - b a s e d
m a r i t i m e
e m p l o y e e s .
The LHWCA
r e s t r i c t e d t h e
d e f i n i t i o n o f 'seaman' i n
t h e J o n e s A c t o n l y t o t h e
e x t e n t
t h a t
'seaman' h a d b e e n
t a k e n
t o
i n c l u d e
l a n d - b a s e d e m p l o y e e s .
T h e r e i s
no i n d i c a t i o n i n t h e
J o n e s A c t , t h e LHWCA, o r e l s e w h e r e ,
t h a t
C o n g r e s s
has
e x c l u d e d
f r o m
J o n e s
A c t
r e m e d i e s
t h o s e
t r a d i t i o n a l seamen who owe a l l e g i a n c e t o
a v e s s e l a t
s e a
"
498 U.S. a t 3 5 3 - 5 4 ; s e e a l s o C h a n d r i s ,
515 U.S. a t 355
("In
W a r n e r [ v . G o l t r a , 293 U.S. 155 ( 1 9 3 4 ) ] , we s t a t e d
t h a t 'a
seaman i s
a m a r i n e r o f
a n y d e g r e e , one
who l i v e s h i s
l i f e upon
t h e
s e a . '
I d . , a t 157.
S i m i l a r l y , i n
N o r t o n v . W a r n e r Co.,
321 U.S. 565, 572 ( 1 9 4 4 ) , we s u g g e s t e d
t h a t
' " e v e r y one
i s
e n t i t l e d t o
t h e
p r i v i l e g e o f
a seaman who, l i k e seamen, a t a l l
t i m e s
c o n t r i b u t e s
t o t h e l a b o r s
a b o u t t h e o p e r a t i o n a n d
w e l f a r e o f
t h e
s h i p when she
i s
upon a v o y a g e . " '
( q u o t i n g The
Buena
V e n t u r a ,
243 F. 7 9 7 , 799 (SDNY
1 9 1 6 ) ) . "
( e m p h a s i s
a d d e d ) ) .
I n
C h a n d r i s ,
w h i c h t h e t r i a l
c o u r t
r e l i e d upon i n i t s
j u d g m e n t i n
t h e p r e s e n t
c a s e , t h e Supreme C o u r t was a s k e d t o
f u r t h e r
c l a r i f y
what
r e l a t i o n s h i p a w o r k e r must have t o a
v e s s e l i n n a v i g a t i o n i n o r d e r t o q u a l i f y f o r "seaman"
s t a t u s
19
1060016
u n d e r t h e J o n e s A c t .
515 U.S. a t 3 5 0 . As t o t h a t i s s u e t h e
C h a n d r i s C o u r t
n o t e d :
" C o n g r e s s
p r o v i d e d some c o n t e n t f o r
t h e J o n e s
A c t
r e q u i r e m e n t
i n 1927 when
i t e n a c t e d t h e
L o n g s h o r e
a n d H a r b o r
W o r k e r s '
C o m p e n s a t i o n A c t
(LHWCA), w h i c h p r o v i d e s s c h e d u l e d c o m p e n s a t i o n ( a n d
t h e e x c l u s i v e remedy) f o r
i n j u r y t o
a b r o a d r a n g e o f
l a n d - b a s e d
m a r i t i m e
w o r k e r s
b u t
w h i c h
a l s o
e x p l i c i t l y
e x c l u d e s f r o m i t s c o v e r a g e 'a m a s t e r o r
member o f a c r e w o f a n y v e s s e l . '
44 S t a t .
( p a r t 2)
1424, as amended, 33 U.S.C. § 9 0 2 ( 3 ) ( G ) . "
515 U.S. a t 3 5 5 . As n o t e d a b o v e , t h e " l a n d - b a s e d "
m a r i t i m e
e m p l o y e e s t o whom C o n g r e s s
d i r e c t e d c o v e r a g e u n d e r t h e
LHWCA
i n c l u d e
"any
l o n g s h o r e m a n
o r
o t h e r
p e r s o n
e n g a g e d i n
l o n g s h o r i n g o p e r a t i o n s , a n d
a n y
h a r b o r - w o r k e r i n c l u d i n g a s h i p
r e p a i r m a n ,
s h i p b u i l d e r , a n d s h i p - b r e a k e r
33 U.S.C. §
9 0 2 ( 3 )
( e m p h a s i s
a d d e d ) .
The
C h a n d r i s C o u r t t h e n
" u n d e r t [ o o k ] t h e ...
d i f f i c u l t
t a s k o f d e v e l o p i n g a s t a t u s - b a s e d s t a n d a r d t h a t , a l t h o u g h
i t
d e t e r m i n e s J o n e s A c t c o v e r a g e
w i t h o u t r e g a r d t o t h e p r e c i s e
a c t i v i t y i n w h i c h t h e w o r k e r i s e n g a g e d a t t h e t i m e o f
t h e
i n j u r y ,
n e v e r t h e l e s s b e s t
f u r t h e r s t h e J o n e s
A c t ' s r e m e d i a l
g o a l s . "
515 U.S. a t 3 5 8 .
The C o u r t
n o t e d
" s e v e r a l
b a s i c
p r i n c i p l e s
r e g a r d i n g t h e d e f i n i t i o n o f a seaman.
F i r s t ,
' [ w ] h e t h e r u n d e r t h e
J o n e s A c t
o r g e n e r a l m a r i t i m e l a w , seamen
20
1060016
do n o t
i n c l u d e l a n d - b a s e d w o r k e r s . ' [ M c D e r m o t t I n t ' l , I n c .
v . ]
W i l a n d e r , [498
U.S. 337] a t 348 [ ( 1 9 9 1 ) ] . " 515 U.S. a t
358
( e m p h a s i s
a d d e d ) .
The C h a n d r i s C o u r t f u r t h e r
n o t e d :
" I n
a d d i t i o n
t o
r e c o g n i z i n g
a
f u n d a m e n t a l
d i s t i n c t i o n
b e t w e e n
l a n d - b a s e d
a n d
s e a - b a s e d
m a r i t i m e
e m p l o y e e s ,
o u r c a s e s
a l s o e m p h a s i z e
t h a t
J o n e s
A c t c o v e r a g e ,
l i k e
t h e
j u r i s d i c t i o n
o f
a d m i r a l t y o v e r c a u s e s o f a c t i o n f o r
m a i n t e n a n c e a n d
c u r e
f o r i n j u r i e s
r e c e i v e d i n t h e c o u r s e
o f a
seaman's e m p l o y m e n t , d e p e n d s ' n o t
on t h e
p l a c e w h e r e
t h e i n j u r y i s i n f l i c t e d ... b u t
on t h e
n a t u r e o f t h e
seaman's
s e r v i c e , h i s s t a t u s as a member o f
t h e
v e s s e l , a n d h i s r e l a t i o n s h i p as s u c h t o t h e v e s s e l
a n d i t s o p e r a t i o n i n
n a v i g a b l e w a t e r s . '
Swanson
[ v .
M a r r a
B r o s . , I n c . ,
328 U.S. 1, 4 ( 1 9 4 6 ) ] .
T h u s ,
m a r i t i m e
w o r k e r s who o b t a i n seaman
s t a t u s do n o t
l o s e t h a t p r o t e c t i o n a u t o m a t i c a l l y when on s h o r e a n d
may r e c o v e r u n d e r t h e J o n e s A c t w h e n e v e r t h e y a r e
i n j u r e d i n t h e s e r v i c e o f a v e s s e l ,
r e g a r d l e s s o f
w h e t h e r t h e i n j u r y o c c u r s on o r o f f
t h e s h i p . "
515 U.S. a t 3 5 9 - 6 0 .
The C h a n d r i s C o u r t c o n t i n u e d :
"Our LHWCA c a s e s
a l s o
r e c o g n i z e t h e c o n v e r s e :
L a n d - b a s e d
m a r i t i m e
w o r k e r s
i n j u r e d
w h i l e on a
v e s s e l i n n a v i g a t i o n r e m a i n
c o v e r e d b y t h e LHWCA,
w h i c h
e x p r e s s l y p r o v i d e s c o m p e n s a t i o n
f o r i n j u r i e s
t o
c e r t a i n w o r k e r s e n g a g e d i n ' m a r i t i m e e m p l o y m e n t '
t h a t a r e i n c u r r e d 'upon t h e
n a v i g a b l e w a t e r s o f t h e
U n i t e d
S t a t e s , '
33 U.S.C. §
9 0 3 ( a ) .
T h u s , i n
D i r e c t o r ,
O f f i c e o f W o r k e r s '
C o m p e n s a t i o n
P r o g r a m s
v.
P e r i n i
N o r t h
R i v e r
A s s o c i a t e s , 459 U.S. 297
( 1 9 8 3 ) , we h e l d t h a t a w o r k e r
i n j u r e d w h i l e
' w o r k i n g
on a b a r g e i n
a c t u a l n a v i g a b l e w a t e r s ' o f
t h e
Hudson
R i v e r , i d . ,
a t
3 0 0 , n. 4, c o u l d be c o m p e n s a t e d u n d e r
t h e LHWCA, i d . , a t 324. See a l s o
P a r k e r v .
M o t o r
B o a t
S a l e s ,
I n c . ,
314 U.S. 244, 244-245
(1941)
21
1060016
( u p h o l d i n g
LHWCA
c o v e r a g e
f o r
a
w o r k e r
t e s t i n g
o u t b o a r d m o t o r s who
'was
d r o w n e d when a m o t o r
b o a t
i n w h i c h he was
r i d i n g c a p s i z e d ' ) . T h e s e
d e c i s i o n s ,
w h i c h
r e f l e c t o u r l o n g s t a n d i n g v i e w o f t h e LHWCA's
s c o p e ,
i n d i c a t e
t h a t
a
m a r i t i m e w o r k e r
d o e s
n o t
become a 'member o f a c r e w '
as
s o o n
as
a
v e s s e l
l e a v e s t h e d o c k .
" I t i s t h e r e f o r e w e l l
s e t t l e d a f t e r d e c a d e s
o f
j u d i c i a l
i n t e r p r e t a t i o n
t h a t t h e J o n e s A c t
i n q u i r y
i s f u n d a m e n t a l l y s t a t u s b a s e d :
L a n d - b a s e d m a r i t i m e
w o r k e r s do n o t become seamen b e c a u s e t h e y h a p p e n t o
be w o r k i n g on b o a r d a v e s s e l when t h e y a r e
i n j u r e d ,
a n d seamen do n o t l o s e J o n e s A c t p r o t e c t i o n when t h e
c o u r s e
o f
t h e i r
s e r v i c e
t o
a
v e s s e l
t a k e s
them
a s h o r e .
I n s p i t e o f t h i s b a c k g r o u n d , r e s p o n d e n t a n d
J u s t i c e STEVENS s u g g e s t t h a t any m a r i t i m e w o r k e r
who
i s a s s i g n e d t o a v e s s e l f o r t h e d u r a t i o n o f a v o y a g e
--
a n d
whose
d u t i e s
c o n t r i b u t e
t o
t h e
v e s s e l ' s
m i s s i o n
--
s h o u l d be
c l a s s i f i e d
as
a seaman f o r
p u r p o s e s
o f
i n j u r i e s
i n c u r r e d
d u r i n g
t h a t
v o y a g e .
See B r i e f f o r R e s p o n d e n t
14; p o s t , a t 2194
( o p i n i o n
c o n c u r r i n g
i n
j u d g m e n t ) .
U n d e r
s u c h
a
'voyage
t e s t , '
w h i c h
r e l i e s
p r i n c i p a l l y u p o n
t h i s
C o u r t ' s
s t a t e m e n t s
t h a t
t h e
J o n e s
A c t
was
d e s i g n e d
t o
p r o t e c t
m a r i t i m e w o r k e r s
who
a r e
e x p o s e d
t o
t h e
' s p e c i a l
h a z a r d s '
a n d
' p a r t i c u l a r
p e r i l s '
c h a r a c t e r i s t i c o f w o r k on v e s s e l s a t s e a , s e e , e.g.,
[ M c D e r m o t t
I n t ' l ,
I n c . v.] W i l a n d e r , [498 U.S.
337]
a t 354
[ ( 1 9 9 1 ) ] , t h e w o r k e r ' s a c t i v i t i e s a t t h e t i m e
o f t h e i n j u r y w o u l d be
c o n t r o l l i n g .
"The
d i f f i c u l t y w i t h r e s p o n d e n t ' s a r g u m e n t ,
as
t h e
f o r e g o i n g
d i s c u s s i o n makes
c l e a r ,
i s t h a t
t h e
LHWCA r e p u d i a t e d t h e
[ I n t e r n a t i o n a l S t e v e d o r i n g Co.
v.] H a v e r t y [ , 272 U.S.
50 ( 1 9 2 6 ) , ] l i n e o f c a s e s a n d
e s t a b l i s h e d t h a t a w o r k e r i s no l o n g e r c o n s i d e r e d t o
be a seaman s i m p l y b e c a u s e he i s d o i n g a seaman's
w o r k a t t h e t i m e o f t h e i n j u r y .
Seaman s t a t u s i s
n o t c o e x t e n s i v e w i t h seamen's
r i s k s .
22
1060016
"...
I n
e v a l u a t i n g
t h e
e m p l o y m e n t - r e l a t e d
c o n n e c t i o n
o f a m a r i t i m e
w o r k e r
t o a
v e s s e l i n
n a v i g a t i o n ,
c o u r t s
s h o u l d n o t e m p l o y
'a " s n a p s h o t "
t e s t
f o r seaman
s t a t u s ,
i n s p e c t i n g
o n l y
t h e
s i t u a t i o n as i t
e x i s t s a t t h e i n s t a n t o f i n j u r y ; a
more e n d u r i n g r e l a t i o n s h i p i s c o n t e m p l a t e d i n
t h e
j u r i s p r u d e n c e . '
E a s l e y
[ v . S o u t h e r n
S h i p b u i l d i n g
C o r p . , 965 F . 2 d 1, 5 ( 5 t h
C i r . 1 9 9 2 ) ] .
T h u s , a
w o r k e r may n o t o s c i l l a t e
b a c k a n d f o r t h
b e t w e e n
J o n e s A c t c o v e r a g e a n d o t h e r r e m e d i e s d e p e n d i n g on
t h e
a c t i v i t y i n w h i c h t h e w o r k e r was e n g a g e d
w h i l e
i n j u r e d .
R e e v e s v . M o b i l e D r e d g i n g & P u m p i n g Co.,
26 F . 3 d 1 2 4 7 , 1256 (CA3 1 9 9 4 ) .
U n l i k e
J u s t i c e
STEVENS, s e e p o s t , a t 2 1 9 4 ,
we do n o t b e l i e v e
t h a t
any m a r i t i m e w o r k e r on a s h i p a t s e a
a s p a r t o f h i s
e m p l o y m e n t i s
a u t o m a t i c a l l y a member o f t h e c r e w o f
t h e
v e s s e l
w i t h i n
t h e m e a n i n g
o f t h e s t a t u t o r y
t e r m s .
Our r e j e c t i o n o f t h e v o y a g e
t e s t i s a l s o
c o n s i s t e n t
w i t h
t h e i n t e r e s t s o f e m p l o y e r s a n d
m a r i t i m e w o r k e r s a l i k e i n
b e i n g a b l e t o p r e d i c t who
w i l l be c o v e r e d b y t h e J o n e s A c t ( a n d ,
p e r h a p s more
i m p o r t a n t l y f o r p u r p o s e s o f t h e
e m p l o y e r s ' w o r k e r s '
c o m p e n s a t i o n o b l i g a t i o n s , who w i l l be c o v e r e d b y
t h e
LHWCA) b e f o r e a p a r t i c u l a r w o r k d a y b e g i n s .
"To
s a y t h a t
o u r c a s e s
h a v e
r e c o g n i z e d
a
d i s t i n c t i o n
b e t w e e n
l a n d - b a s e d
a n d
s e a - b a s e d
m a r i t i m e
w o r k e r s
t h a t
p r e c l u d e s a p p l i c a t i o n o f a
v o y a g e
t e s t f o r
seaman s t a t u s , h o w e v e r ,
i s
n o t
t o
s a y t h a t a m a r i t i m e e m p l o y e e must w o r k o n l y on b o a r d
a v e s s e l t o q u a l i f y a s a seaman u n d e r t h e
J o n e s
A c t .
I n
S o u t h w e s t
M a r i n e , I n c .
v . G i z o n i , 502 U.S. 81
( 1 9 9 1 ) , d e c i d e d o n l y a f e w
months a f t e r W i l a n d e r , we
c o n c l u d e d
t h a t
a
w o r k e r ' s
s t a t u s
as
a
s h i p
r e p a i r m a n ,
one
o f
t h e
e n u m e r a t e d
o c c u p a t i o n s
e n c o m p a s s e d
w i t h i n t h e t e r m
' e m p l o y e e '
u n d e r t h e
LHWCA, 33 U.S.C. §
9 0 2 ( 3 ) , d i d n o t n e c e s s a r i l y
r e s t r i c t t h e
w o r k e r t o a remedy u n d e r t h a t
s t a t u t e .
We
e x p l a i n e d
t h a t ,
' [ w ] h i l e i n some c a s e s a
s h i p
r e p a i r m a n may l a c k t h e r e q u i s i t e c o n n e c t i o n t o a
v e s s e l i n n a v i g a t i o n t o q u a l i f y f o r
seaman
s t a t u s ,
n o t
a l l
s h i p
r e p a i r m e n
l a c k
t h e r e q u i s i t e
23
1060016
c o n n e c t i o n as a m a t t e r
o f l a w . T h i s i s so
b e c a u s e
" [ i ] t
i s n o t t h e e m p l o y e e ' s p a r t i c u l a r
j o b t h a t i s
d e t e r m i n a t i v e ,
b u t
t h e e m p l o y e e ' s
c o n n e c t i o n t o
a
v e s s e l . " '
G i z o n i ,
s u p r a , a t 89
( q u o t i n g W i l a n d e r ,
498
U.S.,
a t
354)
( f o o t n o t e o m i t t e d ) .
T h u s ,
we
c o n c l u d e d , t h e J o n e s A c t remedy may
be a v a i l a b l e
t o
m a r i t i m e w o r k e r s who
a r e e m p l o y e d b y a s h i p y a r d and
who
s p e n d a p o r t i o n o f t h e i r t i m e w o r k i n g on
s h o r e
b u t s p e n d t h e r e s t o f t h e i r t i m e a t s e a . "
515 U.S.
a t 360-64
( e m p h a s i s
a d d e d ) .
W i t h
t h e
f o r e g o i n g b a s i c
p r i n c i p l e s
e s t a b l i s h e d ,
t h e
C h a n d r i s C o u r t t h e n
a r t i c u l a t e d t h e
f o l l o w i n g t w o - p a r t
t e s t
f o r d e t e r m i n i n g w h e t h e r a p a r t i c u l a r e m p l o y e e i s a seaman:
" [ T ] h e e s s e n t i a l r e q u i r e m e n t s f o r seaman s t a t u s
a r e
t w o f o l d .
F i r s t ,
as
we
e m p h a s i z e d
i n
[McDermott
I n t ' l , I n c . v.] W i l a n d e r ,
[498 U.S.
337
( 1 9 9 1 ) , ]
'an
e m p l o y e e ' s d u t i e s must " c o n t r i b u t [ e ] t o t h e
f u n c t i o n
o f
t h e
v e s s e l
o r
t o
t h e
a c c o m p l i s h m e n t
o f i t s
m i s s i o n . " '
498 U.S.,
a t 355
( q u o t i n g [ O f f s h o r e Co.
v.] R o b i s o n , 266 F.2d
[ 7 6 9 ] , 779
[ ( 5 t h C i r . 1 9 5 9 ) ] ) .
The
J o n e s
A c t ' s
p r o t e c t i o n s ,
l i k e
t h e
o t h e r
a d m i r a l t y
p r o t e c t i o n s
f o r seamen,
o n l y
e x t e n d
t o
t h o s e
m a r i t i m e
e m p l o y e e s
who
do
t h e
s h i p ' s w o r k .
B u t
t h i s
t h r e s h o l d r e q u i r e m e n t
i s v e r y b r o a d : ' A l l
who
work
a t
s e a
i n
t h e
s e r v i c e
o f
a
s h i p '
a r e
e l i g i b l e
f o r seaman s t a t u s .
498 U.S.,
a t
354.
" S e c o n d ,
and most
i m p o r t a n t
f o r o u r
p u r p o s e s
h e r e , a seaman must h a v e a c o n n e c t i o n t o a v e s s e l i n
n a v i g a t i o n
( o r
t o
an
i d e n t i f i a b l e
g r o u p
o f
s u c h
v e s s e l s )
t h a t
i s s u b s t a n t i a l
i n t e r m s
o f b o t h i t s
d u r a t i o n and i t s n a t u r e .
The f u n d a m e n t a l p u r p o s e
o f
t h i s
s u b s t a n t i a l
c o n n e c t i o n r e q u i r e m e n t
i s t o g i v e
f u l l
e f f e c t
t o
t h e
r e m e d i a l
scheme
c r e a t e d
by
C o n g r e s s
and
t o
s e p a r a t e
t h e
s e a - b a s e d
m a r i t i m e
e m p l o y e e s who
a r e
e n t i t l e d
t o J o n e s A c t
p r o t e c t i o n
f r o m
t h o s e
l a n d - b a s e d
w o r k e r s
who
have
o n l y
a
24
1060016
t r a n s i t o r y
o r
s p o r a d i c
c o n n e c t i o n
t o
a
v e s s e l
i n
n a v i g a t i o n ,
and
t h e r e f o r e whose employment does
n o t
r e g u l a r l y e x p o s e them t o t h e
p e r i l s
o f t h e
s e a . "
515
U.S.
a t 368
( e m p h a s i s a d d e d ) .
1 2
F u r t h e r ,
c o m m e n t i n g on
t h e
" t e m p o r a l " a s p e c t
( d u r a t i o n )
o f a m a r i t i m e e m p l o y e e ' s c o n n e c t i o n
t o a v e s s e l i n n a v i g a t i o n ,
t h e C h a n d r i s C o u r t
s t a t e d :
" G e n e r a l l y ,
t h e
F i f t h
C i r c u i t
seems
t o
h a v e
i d e n t i f i e d
an
a p p r o p r i a t e
r u l e
o f
thumb
f o r
t h e
o r d i n a r y c a s e :
A w o r k e r who
s p e n d s l e s s t h a n a b o u t
30 p e r c e n t o f h i s t i m e i n t h e s e r v i c e o f a v e s s e l
i n
n a v i g a t i o n
s h o u l d
n o t
q u a l i f y as a seaman u n d e r
t h e
J o n e s A c t .
T h i s
f i g u r e o f c o u r s e s e r v e s as no more
t h a n a g u i d e l i n e e s t a b l i s h e d by y e a r s o f
e x p e r i e n c e ,
and d e p a r t u r e f r o m i t w i l l
c e r t a i n l y be
j u s t i f i e d
i n
a p p r o p r i a t e
c a s e s .
As
we have s a i d ,
' [ t ] h e
i n q u i r y
i n t o seaman s t a t u s i s o f n e c e s s i t y f a c t s p e c i f i c ; i t
1 2 I n
h i s
r e p l y
b r i e f ,
F r a z i e r
r e l i e s
on
a
q u o t e
f r o m
C h a n d r i s t h a t i s q u o t i n g
a s i m i l a r t w o - p a r t t e s t a r t i c u l a t e d
b y t h e U n i t e d S t a t e s C o u r t o f A p p e a l s f o r t h e
F i f t h C i r c u i t i n
O f f s h o r e
Co.
v. R o b i s o n ,
266
F.2d
769,
779
( 5 t h C i r . 1 9 5 9 ) .
515
U.S.
a t
366.
F r a z i e r d o e s
n o t
a t t r i b u t e t h e
q u o t e
t o
R o b i s o n , h o w e v e r , and
he
a p p a r e n t l y
d o e s n o t
a p p r e h e n d
t h a t
e l e m e n t one
o f t h e R o b i s o n t e s t i s s i m i l a r t o e l e m e n t two
o f
t h e C h a n d r i s t e s t a n d
t h a t e l e m e n t two
o f t h e R o b i s o n t e s t i s
s i m i l a r
t o
e l e m e n t
one
o f
t h e
C h a n d r i s
t e s t .
T h i s
i s
i m p o r t a n t b e c a u s e
F r a z i e r ' s a r g u m e n t f r o m
t h e
R o b i s o n
t e s t
e m p h a s i z e s what i s e s s e n t i a l l y t h e
f i r s t
e l e m e n t o f t h e
t e s t
a n n o u n c e d i n C h a n d r i s .
As
d i s c u s s e d
i n f r a
i n t h i s
o p i n i o n ,
h o w e v e r , t h e
t r i a l
c o u r t
s p e c i f i c a l l y f o u n d t h a t an
i s s u e
o f
m a t e r i a l f a c t e x i s t e d as t o w h e t h e r e l e m e n t one
f r o m C h a n d r i s
was
s a t i s f i e d ;
a
f i n d i n g C o r e d o e s n o t
d i s p u t e .
The
i s s u e
t h a t we must d e c i d e i s w h e t h e r t h e
t r i a l
c o u r t
e r r e d when i t
c o n c l u d e d t h a t t h e r e was
no g e n u i n e i s s u e r e g a r d i n g
F r a z i e r ' s
f a i l u r e t o
s a t i s f y e l e m e n t two
o f t h e C h a n d r i s
t e s t .
25
1060016
w i l l
d e p e n d
on
t h e
n a t u r e
o f
t h e
v e s s e l
and
t h e
e m p l o y e e ' s
p r e c i s e
r e l a t i o n
t o
i t . ' [ M c D e r m o t t
I n t ' l ,
I n c .
v.]
W i l a n d e r ,
4 98
U.S.
[ 3 3 7 ] ,
a t
356
[ ( 1 9 9 1 ) ] . "
515
U.S.
a t 371.
The
C o u r t c o n c l u d e d :
" [ T ] h e J o n e s A c t
was
i n t e n d e d
t o p r o t e c t s e a - b a s e d m a r i t i m e w o r k e r s , who
owe
t h e i r
a l l e g i a n c e
t o a v e s s e l , and
n o t
l a n d - b a s e d e m p l o y e e s , who
do
n o t . "
I d . a t
376.
I n
t h e
p r e s e n t
c a s e ,
t h e
t r i a l
c o u r t
c o n c l u d e d
t h a t
a
g e n u i n e i s s u e o f m a t e r i a l
f a c t e x i s t e d as
t o w h e t h e r
F r a z i e r
s a t i s f i e d t h e
f i r s t
e l e m e n t o f t h e C h a n d r i s t e s t .
1
3
As
t o
t h e
s e c o n d
e l e m e n t ,
h o w e v e r ,
t h e
t r i a l
c o u r t
d e t e r m i n e d
t h a t
F r a z i e r
1 3 T h e
t r i a l
c o u r t
s t a t e d ,
t h a t
t h e
" ' c o n t r i b u t e
t o
t h e
f u n c t i o n
o f
t h e
v e s s e l '
p r o n g
has
b e e n
g i v e n
b r o a d
c o n s t r u c t i o n by
t h e
c o u r t s
and
t h e C o u r t b e l i e v e s
t h a t
t h e r e
i s
a t
l e a s t an
i s s u e
o f
f a c t as
t o w h e t h e r
[ F r a z i e r ' s ] w o r k
c o n t r i b u t e d
t o t h e
f u n c t i o n
o f C o r e ' s b a r g e s and
o f f l o a d i n g
o p e r a t i o n . "
C o r e
d o e s
n o t
d i s p u t e
t h e
t r i a l
c o u r t ' s
c o n c l u s i o n
t h a t an
i s s u e o f m a t e r i a l
f a c t s e x i s t s c o n c e r n i n g
w h e t h e r F r a z i e r " c o n t r i b u t e d t o t h e
f u n c t i o n o f a v e s s e l " f o r
p u r p o s e s o f t h e J o n e s A c t .
See,
e.g.,
Cook v. B e l d e n C o n c r e t e
P r o d s . ,
I n c . ,
472
F.2d
999,
1001-02
( 5 t h
C i r .
1 9 7 3 ) ( " C o n v e n t i o n a l
s h i p s
and
b a r g e s
.. . w h i c h a r e
d e s i g n e d
f o r
n a v i g a t i o n
a n d
commerce
a r e
v e s s e l s
w i t h i n
g e n e r a l
m a r i t i m e
a n d
J o n e s A c t
j u r i s d i c t i o n
and
r e t a i n s u c h
s t a t u s
e v e n w h i l e m o o r e d , d r y - d o c k e d ,
o r o t h e r w i s e
i m m o b i l i z e d
and
s e c u r e d
t o
l a n d . " ) ;
s e e
a l s o
S t e w a r t ,
543
U.S.
a t
4 8 8 - 9 5 ;
Holmes v. A t l a n t i c S o u n d i n g Co.,
437
F.3d
441,
448
( 5 t h
C i r .
2 0 0 6 ) ; and A l l e n v. M o b i l e I n t e r s t a t e P i l e d r i v e r s ,
475
So.
2d
530
( A l a . 1985) .
26
1060016
" p e r f o r m e d t h e b u l k o f h i s work e i t h e r on l a n d o r
on
s p u d b a r g e s t h a t were a l m o s t a l w a y s s p u d d e d down
and
t i e d
o f f .
[ F r a z i e r ' s ]
c o n n e c t i o n
t o
a
v e s s e l
i n
n a v i g a t i o n , i f any,
was
s p o r a d i c and e x t r e m e l y
s h o r t
i n d u r a t i o n , n o t
s u b s t a n t i a l i n d u r a t i o n o r
n a t u r e .
[ F r a z i e r ] was
n o t
' e x p o s e d t o t h e p e r i l s
o f t h e
s e a '
as r e q u i r e d by
C h a n d r i s .
f i
" H e r e ,
[ F r a z i e r ] was
n o t
a s e a - b a s e d
m a r i t i m e
e m p l o y e e whose
d u t i e s
r e g u l a r l y t o o k
h i m
t o
s e a .
I n s t e a d ,
[ F r a z i e r ]
a r r i v e d
a t
w o r k
e v e r y
day
by
v e h i c l e
and
went home e v e r y
n i g h t
t o
s l e e p
i n
h i s
own
b e d .
[ F r a z i e r ] d i d
n o t
t a k e
h i s m e a l s
on
t h e
b o a t
and
d i d n o t
s l e e p
on
t h e
b o a t .
[ F r a z i e r ]
was
n o t
a member o f t h e c r e w s t h a t
r e g u l a r l y o f f l o a d e d
t h e b a r g e s and was
n o t p a i d
l i k e them.
He r e g u l a r l y
d i d
w e l d i n g
w o r k
on
i t e m s
t h a t
were
on
t h e
l a n d
w h i l e
he
was
on
l a n d .
H i s b a s e o f o p e r a t i o n
was
a
m e c h a n i c shop on
l a n d .
The w o r k t h a t
[ F r a z i e r ] d i d
on
a b a r g e was
a l m o s t a l w a y s done w h i l e
t h e
b a r g e
was
moored,
s p u d d e d
down,
o r
c o m p l e t e l y
o u t
o f
o p e r a t i o n .
He
was
n e v e r on
a v e s s e l
i n
n a v i g a t i o n
w h i l e w o r k i n g f o r C o r e , and
t h e
o n l y t i m e he was
on
a b a r g e t h a t was m o v i n g was when t h e b a r g e was
b e i n g
moved
s h o r t
d i s t a n c e s
a l o n g
t h e
s h o r e l i n e
by
a
c r a n e .
These
' t r i p s ' were i n f r e q u e n t
and
g e n e r a l l y
t o o k b e t w e e n
t h i r t y m i n u t e s and
an h o u r .
The
w o r k
t h a t he
a c t u a l l y
d i d w h i l e
he
was
on
a b a r g e ,
w i t h
t h e
e x c e p t i o n
o f
o c c a s i o n a l l y h a n d l i n g
l i n e s ,
was
done
t h e r e
o n l y
b e c a u s e
t h e
i t e m
t h a t
he
was
r e p a i r i n g was
l o c a t e d on
t h e
v e s s e l . "
B a s e d on
i t s j u d g m e n t ,
t h e
t r i a l
c o u r t
a p p e a r s
t o h a v e
c o n c l u d e d
(1)
t h a t
F r a z i e r d i d n o t w o r k on b a r g e s t h a t were
" i n
n a v i g a t i o n "
and
(2)
t h a t
F r a z i e r ' s c o n n e c t i o n
t o
b a r g e s
" i n n a v i g a t i o n " was
n o t
" s u b s t a n t i a l i n d u r a t i o n
and
n a t u r e "
27
1060016
f o r p u r p o s e s o f t h e J o n e s A c t .
As t o t h e i s s u e o f when a
v e s s e l
i s c o n s i d e r e d
" i n n a v i g a t i o n , "
t h e C h a n d r i s
C o u r t
s t a t e d :
"Under o u r p r e c e d e n t and t h e l a w p r e v a i l i n g i n
t h e
C i r c u i t s ,
i t i s g e n e r a l l y
a c c e p t e d
t h a t
'a
v e s s e l d o e s n o t c e a s e t o be a v e s s e l when she i s
n o t
v o y a g i n g ,
b u t
i s a t
a n c h o r ,
b e r t h e d ,
o r
a t
d o c k s i d e , '
D i G i o v a n n i
v. T r a y l o r B r o s . , I n c . ,
959
F.2d
1119, 1121 (CA1) (en b a n c ) ,
c e r t .
d e n i e d , 506
U.S. 827 ( 1 9 9 2 ) , e v e n when t h e v e s s e l i s u n d e r g o i n g
r e p a i r s .
See ... [2 M.
N o r r i s , Law o f Seamen §
30.13,] a t 364
[ ( 4 t h e d . 1 9 8 5 ) ] ( ' [ A ]
v e s s e l i s
i n
n a v i g a t i o n ... when i t
r e t u r n s
f r o m a v o y a g e and
i s
t a k e n t o a d r y d o c k o r s h i p y a r d t o u n d e r g o r e p a i r s i n
p r e p a r a t i o n
t o m a k i n g a n o t h e r
t r i p , and l i k e w i s e a
v e s s e l i s i n n a v i g a t i o n ,
a l t h o u g h moored t o a d o c k ,
i f
i t r e m a i n s
i n r e a d i n e s s
f o r a n o t h e r
v o y a g e '
( f o o t n o t e s
o m i t t e d ) ) .
A t
some
p o i n t ,
h o w e v e r ,
r e p a i r s
become
s u f f i c i e n t l y
s i g n i f i c a n t
t h a t t h e
v e s s e l c a n no l o n g e r
be c o n s i d e r e d
i n n a v i g a t i o n .
I n West v . U n i t e d
S t a t e s , 361 U.S. 118
( 1 9 5 9 ) , we
h e l d
t h a t a s h o r e s i d e
w o r k e r was n o t e n t i t l e d t o
r e c o v e r
f o r u n s e a w o r t h i n e s s b e c a u s e t h e v e s s e l on
w h i c h he was i n j u r e d was u n d e r g o i n g an o v e r h a u l f o r
t h e
p u r p o s e o f m a k i n g h e r s e a w o r t h y and
t h e r e f o r e
had
b e e n w i t h d r a w n
f r o m
n a v i g a t i o n .
We
e x p l a i n e d
t h a t , i n s u c h c a s e s , ' t h e f o c u s
s h o u l d be upon t h e
s t a t u s o f t h e s h i p , t h e p a t t e r n o f t h e r e p a i r s , and
t h e
e x t e n s i v e
n a t u r e o f t h e work
c o n t r a c t e d
t o be
d o n e . '
I d . , a t 122. ...
The g e n e r a l
r u l e among t h e
C o u r t s o f A p p e a l s i s t h a t v e s s e l s u n d e r g o i n g r e p a i r s
o r
s p e n d i n g a
r e l a t i v e l y
s h o r t
p e r i o d
o f t i m e i n
d r y d o c k a r e s t i l l
c o n s i d e r e d
t o be ' i n n a v i g a t i o n '
w h e r e a s
s h i p s
b e i n g
t r a n s f o r m e d
t h r o u g h
' m a j o r '
o v e r h a u l s o r r e n o v a t i o n s
a r e n o t . "
515 U.S. a t 373-74.
28
1060016
I n
l i g h t
o f t h e f o r e g o i n g
l a n g u a g e
f r o m
C h a n d r i s , t h e
b a r g e on w h i c h F r a z i e r was i n j u r e d i n M a r c h 2005 a r g u a b l y h a d
n o t
b e e n
t a k e n
o u t o f s e r v i c e a n d was " i n n a v i g a t i o n " f o r
p u r p o s e s o f t h e J o n e s A c t . The same a r g u m e n t c a n be made as
t o
most
o f F r a z i e r ' s o t h e r
w o r k
on C o r e ' s
b a r g e s ,
w h i c h
i n v o l v e d b a r g e s t h a t m i g h t be c o n s i d e r e d " i n
n a v i g a t i o n " f o r
p u r p o s e s
o f t h e J o n e s
A c t .
We
p r e t e r m i t
c o n s i d e r a t i o n ,
h o w e v e r , o f w h e t h e r t h e t r i a l
c o u r t e r r e d when i t c o n c l u d e d
t h a t
F r a z i e r
"was
n e v e r
on a v e s s e l
i n n a v i g a t i o n
w h i l e
w o r k i n g f o r
C o r e . "
As h e r e i n a f t e r d i s c u s s e d , F r a z i e r ' s J o n e s
A c t
c l a i m s
f a i l b e c a u s e t h e t r i a l
c o u r t was c o r r e c t i n i t s
d e t e r m i n a t i o n
t h a t no g e n u i n e
i s s u e
e x i s t s
as t o w h e t h e r
F r a z i e r ' s
r e l a t i o n s h i p
t o
v e s s e l s
i n
n a v i g a t i o n
was
s u b s t a n t i a l i n n a t u r e f o r
p u r p o s e s o f t h e J o n e s A c t .
As t h e C h a n d r i s
C o u r t
n o t e d :
" [ T ] h e
q u e s t i o n o f who i s a 'member o f a c r e w , ' a n d
t h e r e f o r e who i s a 'seaman,' i s a m i x e d q u e s t i o n o f
l a w a n d f a c t .
B e c a u s e s t a t u t o r y t e r m s a r e a t i s s u e ,
t h e i r
i n t e r p r e t a t i o n i s a q u e s t i o n o f l a w a n d i t i s
t h e c o u r t ' s d u t y t o d e f i n e t h e a p p r o p r i a t e
s t a n d a r d .
[ M c D e r m o t t
I n t ' l , I n c .
v.] W i l a n d e r ,
498 U.S. [337]
a t
356
[ ( 1 9 9 1 ) ] .
On
t h e
o t h e r
h a n d ,
' [ i ] f
r e a s o n a b l e
p e r s o n s ,
a p p l y i n g
t h e
p r o p e r
l e g a l
s t a n d a r d ,
c o u l d
d i f f e r as t o w h e t h e r t h e e m p l o y e e
was a "member o f a c r e w , " i t
i s a q u e s t i o n f o r
t h e
j u r y . '
I b i d .
...
The
j u r y
s h o u l d be
p e r m i t t e d ,
when d e t e r m i n i n g w h e t h e r a m a r i t i m e e m p l o y e e h a s t h e
29
1060016
r e q u i s i t e e m p l o y m e n t - r e l a t e d c o n n e c t i o n t o a v e s s e l
i n n a v i g a t i o n t o q u a l i f y as a member o f t h e v e s s e l ' s
c r e w , t o c o n s i d e r a l l
r e l e v a n t c i r c u m s t a n c e s b e a r i n g
on t h e two e l e m e n t s
o u t l i n e d
a b o v e . "
515 U.S. a t 369. The C o u r t c o n t i n u e d :
" I n
o u r
v i e w ,
' t h e
t o t a l
c i r c u m s t a n c e s
o f an
i n d i v i d u a l ' s employment must be w e i g h e d t o d e t e r m i n e
w h e t h e r
he
h a d
a
s u f f i c i e n t
r e l a t i o n
t o t h e
n a v i g a t i o n
o f
v e s s e l s
a n d t h e
p e r i l s
a t t e n d a n t
t h e r e o n . '
W a l l a c e v. O c e a n e e r i n g
I n t ' l ,
727 F.2d
427,
432 (CA5 1
9 8 4 ) .
The d u r a t i o n o f a
w o r k e r ' s
c o n n e c t i o n
t o a
v e s s e l
a n d t h e n a t u r e
o f t h e
w o r k e r ' s
a c t i v i t i e s ,
t a k e n
t o g e t h e r ,
d e t e r m i n e
w h e t h e r a m a r i t i m e e m p l o y e e i s
a seaman b e c a u s e t h e
u l t i m a t e
i n q u i r y i s w h e t h e r t h e w o r k e r i n q u e s t i o n
i s
a member
o f t h e v e s s e l ' s
c r e w
o r
s i m p l y a
l a n d - b a s e d e m p l o y e e who h a p p e n s t o be w o r k i n g on
t h e
v e s s e l a t a g i v e n t i m e . "
515 U.S. a t 370 ( e m p h a s i s
a d d e d ) .
A l t h o u g h
F r a z i e r ' s
a r g u m e n t
p a r r o t s
t h e l a n g u a g e
o f
C h a n d r i s so t h a t
s u p e r f i c i a l l y
t h e r e a p p e a r s t o be m e r i t i n
h i s c o n t e n t i o n t h a t he h a d a c o n n e c t i o n t o C o r e ' s b a r g e s
t h a t
was
s u b s t a n t i a l i n n a t u r e f o r
p u r p o s e s o f t h e J o n e s A c t ,
h i s
a r g u m e n t
i s a t odds
w i t h
t h e f u n d a m e n t a l
p u r p o s e
o f t h e
" s u b s t a n t i a l c o n n e c t i o n " r e q u i r e m e n t .
As t h e C h a n d r i s C o u r t
s t a t e d :
"The
f u n d a m e n t a l
p u r p o s e
o f
t h i s
s u b s t a n t i a l
c o n n e c t i o n
r e q u i r e m e n t
i s ...
t o
s e p a r a t e t h e
s e a - b a s e d
m a r i t i m e
e m p l o y e e s
who a r e e n t i t l e d t o
J o n e s A c t p r o t e c t i o n
f r o m t h o s e l a n d - b a s e d
w o r k e r s
30
1060016
... whose e m p l o y m e n t does n o t r e g u l a r l y e x p o s e them
t o
t h e p e r i l s o f t h e
s e a . "
515 U.S.
a t 368
( e m p h a s i s
a d d e d ) .
P e r h a p s more i m p o r t a n t l y , s u b s e q u e n t
t o i t s d e c i s i o n i n
C h a n d r i s , t h e Supreme C o u r t
s t a t e d :
" F o r t h e s u b s t a n t i a l c o n n e c t i o n r e q u i r e m e n t t o s e r v e
i t s
p u r p o s e ,
t h e
i n q u i r y
i n t o
t h e
n a t u r e
o f
t h e
e m p l o y e e ' s c o n n e c t i o n t o t h e v e s s e l must c o n c e n t r a t e
on w h e t h e r
t h e e m p l o y e e ' s d u t i e s t a k e h i m
t o
s e a .
T h i s
w i l l
g i v e s u b s t a n c e
t o t h e
i n q u i r y b o t h as
t o
t h e d u r a t i o n and n a t u r e o f t h e e m p l o y e e ' s c o n n e c t i o n
t o
t h e
v e s s e l
and
be
h e l p f u l
i n
d i s t i n g u i s h i n g
l a n d - b a s e d
f r o m s e a - b a s e d
e m p l o y e e s . "
H a r b o r
Tug
& B a r g e Co. v. P a p a i , 520
U.S.
548,
555
( 1 9 9 7 ) .
I n P a p a i , t h e C o u r t h e l d t h a t P a p a i d i d n o t meet t h e
t e s t
f o r
seaman s t a t u s , n o t i n g :
" P a p a i was
q u a l i f i e d u n d e r t h e IBU
[ I n l a n d Boatman's
U n i o n ] D e c k h a n d s A g r e e m e n t t o p e r f o r m
n o n - s e a g o i n g
w o r k i n a d d i t i o n
t o t h e
s e a g o i n g
d u t i e s d e s c r i b e d
a b o v e .
H i s a c t u a l d u t y on t h e P t . B a r r o w
t h r o u g h o u t
t h e
e m p l o y m e n t
i n
q u e s t i o n
d i d
n o t
i n c l u d e
any
s e a g o i n g
a c t i v i t y ; he was
h i r e d f o r one day t o p a i n t
t h e v e s s e l a t d o c k s i d e and he was
n o t g o i n g t o
s a i l
w i t h t h e v e s s e l a f t e r he f i n i s h e d p a i n t i n g
i t .
T h i s
i s
n o t
a
c a s e
where
t h e
e m p l o y e e
was
h i r e d
t o
p e r f o r m
s e a g o i n g
w o r k
d u r i n g
t h e
e m p l o y m e n t
i n
q u e s t i o n , h o w e v e r
b r i e f ,
and
we
n e e d n o t
c o n s i d e r
h e r e
t h e c o n s e q u e n c e s
o f s u c h
an e m p l o y m e n t .
The
IBU
D e c k h a n d s A g r e e m e n t g i v e s no
r e a s o n
t o assume
t h a t any p a r t i c u l a r p e r c e n t a g e o f P a p a i ' s w o r k w o u l d
be
o f
a
s e a g o i n g
n a t u r e ,
s u b j e c t i n g
h i m
t o
t h e
p e r i l s
o f
t h e
s e a .
I n
t h e s e
c i r c u m s t a n c e s ,
t h e
u n i o n a g r e e m e n t d o e s n o t a d v a n c e t h e a c c u r a c y o f t h e
s e a m a n - s t a t u s
i n q u i r y .
31
1060016
" P a p a i
a r g u e s
he
q u a l i f i e s
as
a seaman
i f we
c o n s i d e r
h i s 12
p r i o r
e m p l o y m e n t s w i t h H a r b o r
Tug
o v e r
t h e
2^
months
b e f o r e
h i s
i n j u r y .
P a p a i
t e s t i f i e d
a t h i s d e p o s i t i o n t h a t he w o r k e d
a b o a r d
t h e P t . B a r r o w on t h r e e o r f o u r o c c a s i o n s b e f o r e t h e
day
he
was
i n j u r e d ,
t h e most
r e c e n t
o f w h i c h
was
more t h a n a week e a r l i e r .
E a c h o f t h e s e e n g a g e m e n t s
i n v o l v e d
o n l y m a i n t e n a n c e work
w h i l e
t h e
t u g
was
d o c k e d .
The n a t u r e o f P a p a i ' s c o n n e c t i o n t o t h e P t .
B a r r o w
was
no
more
s u b s t a n t i a l
f o r
s e a m a n - s t a t u s
p u r p o s e s by v i r t u e o f t h e s e e n g a g e m e n t s t h a n t h e
one
d u r i n g
w h i c h
he
was
i n j u r e d .
P a p a i
does
n o t
i d e n t i f y w i t h s p e c i f i c i t y what he d i d f o r H a r b o r
Tug
t h e
o t h e r
e i g h t
o r
n i n e
t i m e s
he
w o r k e d
f o r
t h e
company
i n t h e
2^ months b e f o r e
h i s
i n j u r y .
The
c l o s e s t he comes i s h i s d e p o s i t i o n t e s t i m o n y t h a t 70
p e r c e n t o f h i s w o r k o v e r t h e 2 1/4
y e a r s b e f o r e h i s
i n j u r y
was
d e c k h a n d w o r k .
C o u p l e d
w i t h
t h e
f a c t
t h a t none o f P a p a i ' s w o r k a b o a r d t h e P t . B a r r o w
was
o f a s e a g o i n g n a t u r e , i t w o u l d n o t be r e a s o n a b l e
t o
i n f e r
f r o m
P a p a i ' s
t e s t i m o n y
t h a t
h i s
r e c e n t
e n g a g e m e n t s
w i t h
H a r b o r
Tug
i n v o l v e d work
o f
a
s e a g o i n g
n a t u r e .
I n
any
e v e n t ,
t h e s e
d i s c r e t e
e n g a g e m e n t s were s e p a r a t e f r o m t h e one
i n q u e s t i o n ,
w h i c h
was
t h e
s o r t
o f
' t r a n s i t o r y
o r
s p o r a d i c '
c o n n e c t i o n t o a v e s s e l o r g r o u p o f v e s s e l s t h a t ,
as
we
e x p l a i n e d i n C h a n d r i s , d o e s n o t
q u a l i f y
one
f o r
seaman s t a t u s .
515 U.S.,
a t
368."
520
U.S.
a t 559-60
( r e f e r e n c e s t o r e c o r d o m i t t e d ;
e m p h a s i s
a d d e d ) .
B a s e d on t h e r a t i o n a l e b e h i n d t h e " s u b s t a n t i a l i n n a t u r e "
r e q u i r e m e n t
a n n o u n c e d i n C h a n d r i s
and
on t h e
i n t e r p r e t a t i o n
and a p p l i c a t i o n o f t h a t l a n g u a g e
i n P a p a i , we a r e c l e a r t o t h e
c o n c l u s i o n t h a t t h e
t r i a l c o u r t d i d n o t e r r when i t d e t e r m i n e d
32
1060016
t h a t no g e n u i n e i s s u e o f m a t e r i a l f a c t e x i s t e d as t o w h e t h e r
F r a z i e r ' s
c o n n e c t i o n
t o
C o r e ' s
b a r g e s
was
s u b s t a n t i a l
i n
n a t u r e .
F r a z i e r was
a l a n d - b a s e d e m p l o y e e whose w o r k was
n o t
o f
a s e a g o i n g
n a t u r e ;
he
was
n o t
" r e g u l a r l y e x p o s e d
t o
t h e
p e r i l s
o f
t h e
s e a "
w h i l e
p e r f o r m i n g
h i s
w o r k
f o r
C o r e .
Compare, e.g.,
R i c h a r d
v. M i k e H o o k s , I n c . ,
799
So.
2d
462,
466-67 ( L a . 2
0
0 1 ) ( " R i c h a r d ' s
t i m e s p e n t a b o a r d H o o k s ' s v e s s e l s
and
t h e
p e r i l s
he
f a c e d must be
c o n s i d e r e d
a l o n g
w i t h
o t h e r
i m p o r t a n t
f a c t s t o d e t e r m i n e w h e t h e r h i s c o n n e c t i o n [ s ]
w i t h
d e f e n d a n t ' s v e s s e l s a r e s u b s t a n t i a l i n n a t u r e and d u r a t i o n . I n
t h i s
p a r t i c u l a r
i n s t a n c e ,
we
c o n s i d e r
an
a n a l y s i s
o f
t h e
f o l l o w i n g :
a l l o f t h e v e s s e l s on w h i c h p l a i n t i f f w o r k e d were
d o c k s i d e ;
he was
n e v e r more t h a n a g a n g p l a n k ' s d i s t a n c e
f r o m
s h o r e when w o r k i n g on
t h e v e s s e l s ; some o f t h e v e s s e l s were
p a r t i a l l y on l a n d w h i l e b e i n g
r e p a i r e d ; he n e v e r s l e p t on
t h e
v e s s e l s ; he d i d n o t e a t on t h e v e s s e l s ; he d i d n o t keep w a t c h
on v e s s e l s
o v e r n i g h t ;
he
was
n o t
a member o f H o o k s ' s d r e d g e
c r e w t h a t p e r f o r m e d w e l d i n g
on d r e d g e s i n o p e r a t i o n ; he
n e v e r
w o r k e d
on
a
v e s s e l
w h i l e
i t was
p e r f o r m i n g
i t s
p r i m a r y
m i s s i o n ; he t o o k h i s o r d e r s f r o m a l a n d - b a s e d f o r e m a n ; he
was
o n l y a b o a r d s m a l l m o v i n g v e s s e l s once e v e r y month, f o r
s h o r t
33
1060016
d u r a t i o n s , where he
a s s i s t e d i n m o v i n g d r e d g e p i p e
a l o n g
a
c a n a l a d j a c e n t
t o H o o k s ' s y a r d ;
and h i s r e p a i r d u t i e s d i d
n o t
t a k e
h i m
t o s e a .
W h i l e none o f t h e s e
i n d i v i d u a l
f a c t s a l o n e
p r o h i b i t
an
e m p l o y e e
f r o m
a t t a i n i n g
seaman
s t a t u s ,
a
c o n s i d e r a t i o n
o f
them
t o g e t h e r
shows
t h a t
R i c h a r d
was
a
l a n d - b a s e d e m p l o y e e , n o t
a seaman."
( f o o t n o t e
o m i t t e d ) ) .
F u r t h e r , t h e LHWCA s p e c i f i c a l l y d e f i n e s an " e m p l o y e e " f o r
p u r p o s e s
o f
t h a t
a c t
as
"any
p e r s o n
e n g a g e d
i n
m a r i t i m e
e m p l o y m e n t , i n c l u d i n g any l o n g s h o r e m a n o r o t h e r p e r s o n e n g a g e d
i n l o n g s h o r i n g
o p e r a t i o n s ,
and
any h a r b o r - w o r k e r i n c l u d i n g a
s h i p r e p a i r m a n , s h i p b u i l d e r , and
s h i p - b r e a k e r . "
33 U.S.C. §
9 0 2 ( 3 ) ( e m p h a s i s a d d e d ) .
The
t r i a l
c o u r t
f o u n d t h a t
F r a z i e r
was
a s h i p r e p a i r m a n and, t h o u g h he
t e s t i f i e d t h a t he a c t e d
as
a " d e c k h a n d " on o c c a s i o n , t h e o n l y s p e c i f i c t e s t i m o n y
he
g i v e s
c o n c e r n i n g
what
he
d i d
as
a
" d e c k h a n d "
r e l a t e d
t o
h i s
o c c a s i o n a l l y a s s i s t i n g w i t h m a t t e r s r e l a t e d t o t h e l o a d i n g
and
u n l o a d i n g
o f
t h e
b a r g e s
a t
d o c k s i d e .
I n
f a c t ,
F r a z i e r
c o n c e d e d
t h a t
so
f a r as
h i s w o r k was
c o n c e r n e d ,
t h e
b a r g e s
e s s e n t i a l l y
s e r v e d
as work p l a t f o r m s .
T h e r e i s no
e v i d e n c e
i n d i c a t i n g t h a t he p e r f o r m e d t h e
d u t i e s o f a " d e c k h a n d " away
f r o m t h e d o c k on open w a t e r , i . e . , " d u t i e s t h a t
[ t o o k ]
h i m
t o
34
1060016
s e a "
where
t h e
b a r g e s
were
b e i n g
p u s h e d
by
t u g b o a t
t o
t r a n s p o r t
c a r g o .
See
P a p a i , 520
U.S.
a t 555.
U n d e r
t h e s e
c i r c u m s t a n c e s ,
i f F r a z i e r
i s a seaman
f o r p u r p o s e s
o f
t h e
J o n e s A c t , t h e n v i r t u a l l y a l l
l o n g s h o r e m e n , who
t y p i c a l l y w o r k
on
s h i p
d u r i n g
t h e
l o a d i n g
and
u n l o a d i n g
p r o c e s s ,
see
N o r t h e a s t M a r i n e T e r m i n a l Co. v. C a p u t o , 432 U.S.
249, 254
n.4
( 1 9 7 7 ) ,
c o u l d be
c l a s s i f i e d
as
a seamen as
w e l l .
S u c h
an
e x p a n s i v e v i e w o f seaman s t a t u s w o u l d
v i r t u a l l y e l i m i n a t e t h e
d i s t i n c t i o n
C o n g r e s s
has drawn b e t w e e n t h e t y p e s o f e m p l o y e e s
who
a r e " e n g a g e [ d ] i n m a r i t i m e e m p l o y m e n t , " as i l l u s t r a t e d i n
§ 9 0 2 ( 3 ) , and t h o s e e m p l o y e e s who
a r e "member[s] o f a c r e w o f
any
v e s s e l . "
See,
e.g.,
R o b e r t s
v.
I n g r a m B a r g e Co.,
[No.
5:06-CV-00210-R, A p r i l 16, 2009]
F. Supp.
2d
,
(W.D.
Ky. 2
0
0
9 ) ( s t a t i n g i n r e g a r d t o a w e l d e r who
" s p e n t a l l o f h i s
w o r k d a y
e i t h e r
i n t h e
f l e e t s
o r p e r f o r m i n g
r e p a i r w o r k
on
b a r g e s
t h a t were moored
a l o n g s i d e t h e
d o c k " :
"The
h a z a r d s
R o b e r t s
s t a t e s
he
f a c e d
do
n o t
r i s e
t o
t h e
l e v e l
o f
t h e
s p e c i a l h a z a r d s
and
d i s a d v a n t a g e s
f a c e d by seaman; t h e y
a r e
h a z a r d s
t h a t
l o n g s h o r e m e n
commonly
e n c o u n t e r .
T h e r e f o r e ,
R o b e r t s was
an i n t e n d e d b e n e f i c i a r y o f t h e LHWCA.").
P e r h a p s
more
i m p o r t a n t l y , s u c h
an
e x p a n s i v e
v i e w
o f seaman
s t a t u s
35
1060016
w o u l d remove t h e s a f e h a r b o r o f t h e
LHWCA's n o - f a u l t m a r i t i m e -
w o r k e r s ' - c o m p e n s a t i o n
scheme f o r many p e r s o n s who a r e " e n g a g e d
i n m a r i t i m e e m p l o y m e n t , " l e a v i n g them t o n a v i g a t e t h r o u g h t h e
t o r t - b a s e d schemes t h e LHWCA was i n t e n d e d t o d i s p l a c e .
1
4
C o n s i d e r i n g t h e t o t a l i t y
o f t h e e v i d e n t i a r y m a t e r i a l s
p r e s e n t e d
t o t h e
t r i a l
c o u r t ,
we
c a n n o t
c o n c l u d e
t h a t
r e a s o n a b l e
j u r o r s
c o u l d
d i f f e r
as
t o w h e t h e r
F r a z i e r ' s
1
4 F r a z i e r
r e l i e s
upon
S t e w a r t ,
w h i c h
i n v o l v e d
c o n s i d e r a t i o n o f t h e m e a n i n g o f t h e § 9 0 2 ( 3 ) ( G ) e x c e p t i o n ("a
m a s t e r o r member o f a c r e w o f a n y v e s s e l " ) .
S t e w a r t , h o w e v e r ,
d o e s n o t a d d r e s s t h e i s s u e o f what c o n n e c t i o n t o a v e s s e l i n
n a v i g a t i o n i s n e c e s s a r y f o r
t h e c o n n e c t i o n t o be c o n s i d e r e d
" s u b s t a n t i a l i n d u r a t i o n a n d n a t u r e . "
See 543 U.S. a t 488
("We b e g a n c l a r i f y i n g t h e d e f i n i t i o n o f ' s e a m a n ' i n
a p a i r o f
c a s e s , M c D e r m o t t I n t ' l I n c . v. W i l a n d e r , s u p r a , a n d C h a n d r i s ,
s u p r a , t h a t a d d r e s s e d t h e r e l a t i o n s h i p a w o r k e r must h a v e t o
a v e s s e l i n o r d e r t o be a ' m a s t e r o f member' o f i t s c r e w .
We
now t u r n t o t h e o t h e r h a l f o f t h e LHWCA's e q u a t i o n :
how t o
d e t e r m i n e w h e t h e r a w a t e r c r a f t i s
a ' v e s s e l . ' " ) .
I n f a c t , on
remand f r o m S t e w a r t , when t h e e m p l o y e r a t t e m p t e d t o r a i s e t h e
s u b s t a n t i a l - d u r a t i o n - a n d - n a t u r e i s s u e , t h e
U n i t e d S t a t e s C o u r t
o f
A p p e a l s
f o r t h e F i r s t
C i r c u i t
n o t e d
t h a t t h e e m p l o y e r
a l r e a d y h a d c o n c e d e d t h e i s s u e i n p r i o r p r o c e e d i n g s a n d t h a t
i t was t h e r e f o r e p r e c l u d e d f r o m r a i s i n g
i t .
S t e w a r t , 418 F . 3 d
a t 3 5 - 3 6 .
I n a n y e v e n t , t h e e m p l o y e e i n S t e w a r t was "a m a r i n e
e n g i n e e r " who was h i r e d t o m a i n t a i n t h e m e c h a n i c a l
s y s t e m s on
a l a r g e d r e d g e and who s p e n t 99% o f h i s
t i m e o n b o a r d w h i l e t h e
d r e d g e
was
p e r f o r m i n g
i t s d r e d g i n g
o p e r a t i o n s
i n
B o s t o n
H a r b o r .
B y c o n t r a s t , F r a z i e r o f f e r e d no e v i d e n c e
i n d i c a t i n g
t h a t he w o r k e d on C o r e ' s b a r g e s away f r o m t h e s h o r e l i n e w h i l e
t h e y
w e r e
a c t u a l l y
p e r f o r m i n g
t h e i r
w o r k o f t r a n s p o r t i n g
c a r g o , w h e r e he m i g h t h a v e b e e n
" r e g u l a r l y
e x p o s e d t o t h e
p e r i l s o f t h e s e a . "
36
1060016
c o n n e c t i o n t o
a v e s s e l i n
n a v i g a t i o n was s u b s t a n t i a l i n n a t u r e
f o r
p u r p o s e s
o f t h e J o n e s A c t .
A c c o r d i n g l y ,
F r a z i e r ' s
n e g l i g e n c e
c l a i m
( c o u n t 1 ) , w h i c h he b a s e d on h i s s t a t u s as
an
" a b l e - b o d i e d
seaman,"
f a i l s .
L i k e w i s e , h i s
J o n e s A c t c l a i m
( c o u n t 2) a n d h i s
u n s e a w o r t h i n e s s
c l a i m
( c o u n t 3) f a i l .
As
f o r
F r a z i e r ' s
c l a i m s
b a s e d
on C o r e ' s
a l l e g e d
w a n t o n o r
r e c k l e s s a c t i o n
( c o u n t 4 ) , F r a z i e r makes no s p e c i f i c a r g u m e n t
a d d r e s s i n g
t h e d e n i a l
o f
t h i s
" c l a i m , "
a n d he
c i t e s
no
a u t h o r i t y
t h a t w o u l d s u p p o r t a r u l i n g
t h a t t h e t r i a l
c o u r t
e r r e d b y d e n y i n g t h i s " c l a i m . "
Thus, a n y a r g u m e n t r e l a t i n g t o
t h a t c o u n t i s
w a i v e d .
Chunn v . W h i s e n a n t , 877 So.
2d 595, 601
( A l a .
2 0 0 3 ) .
B.
S e c t i o n
905(b)
F r a z i e r ' s
r e m a i n i n g a r g u m e n t i s t h a t
e v e n i f
he i s
an
e m p l o y e e u n d e r t h e
LHWCA i n s t e a d o f a seaman f o r p u r p o s e s o f
h i s J o n e s A c t c l a i m s , he i s
e n t i t l e d t o m a i n t a i n a
n e g l i g e n c e
a c t i o n a g a i n s t C o r e u n d e r t h e
§ 9 0 5 ( b ) e x c e p t i o n t o e x c l u s i v e
l i a b i l i t y
f o u n d i n § 9 0 5 ( a ) o f t h e LHWCA.
S e c t i o n
9 0 5 ( b )
s t a t e s :
" I n t h e e v e n t o f i n j u r y
t o a p e r s o n
c o v e r e d
u n d e r
t h i s
c h a p t e r
c a u s e d b y t h e n e g l i g e n c e
o f a
v e s s e l ,
t h e n
s u c h
p e r s o n ,
o r anyone
o t h e r w i s e
e n t i t l e d t o r e c o v e r
damages b y r e a s o n
t h e r e o f , may
37
1060016
b r i n g an a c t i o n a g a i n s t s u c h v e s s e l as a t h i r d
p a r t y
i n a c c o r d a n c e w i t h t h e p r o v i s i o n s o f s e c t i o n 933 o f
t h i s
t i t l e , and t h e e m p l o y e r
s h a l l n o t be l i a b l e t o
t h e
v e s s e l f o r s u c h damages d i r e c t l y o r
i n d i r e c t l y
and
any a g r e e m e n t s o r w a r r a n t i e s
t o t h e
c o n t r a r y
s h a l l be v o i d . ...
I f s u c h p e r s o n was e m p l o y e d t o
p r o v i d e
s h i p b u i l d i n g ,
r e p a i r i n g ,
o r
b r e a k i n g
s e r v i c e s and s u c h p e r s o n ' s e m p l o y e r was t h e owner,
owner p r o h a c v i c e , a g e n t , o p e r a t o r , o r c h a r t e r e r o f
t h e
v e s s e l , no s u c h
a c t i o n
s h a l l be p e r m i t t e d , i n
w h o l e o r i n p a r t o r d i r e c t l y o r i n d i r e c t l y ,
a g a i n s t
t h e
i n j u r e d
p e r s o n ' s
e m p l o y e r
( i n any
c a p a c i t y ,
i n c l u d i n g as t h e v e s s e l ' s owner, owner p r o h a c v i c e ,
a g e n t ,
o p e r a t o r ,
o r
c h a r t e r e r )
o r
a g a i n s t
t h e
e m p l o y e e s o f t h e e m p l o y e r .
The
l i a b i l i t y
o f t h e
v e s s e l u n d e r t h i s s u b s e c t i o n
s h a l l n o t be b a s e d upon
t h e w a r r a n t y o f s e a w o r t h i n e s s o r a b r e a c h t h e r e o f a t
t h e
t i m e t h e i n j u r y
o c c u r r e d .
The remedy
p r o v i d e d
i n
t h i s
s u b s e c t i o n
s h a l l be e x c l u s i v e o f a l l o t h e r
r e m e d i e s
a g a i n s t
t h e
v e s s e l
e x c e p t
r e m e d i e s
a v a i l a b l e u n d e r t h i s
c h a p t e r . "
33 U.S.C. § 9 0 5 ( b ) ( e m p h a s i s
a d d e d ) .
The
t r i a l
c o u r t n o t e d i n i t s j u d g m e n t
t h a t
" [ F r a z i e r ' s ]
c o u n s e l
a r g u e d i n
h i s o p p o s i t i o n
b r i e f
and a t t h e h e a r i n g
t h a t
[ F r a z i e r ] h a s a v a l i d
c l a i m
u n d e r 33 U.S.C. § 9 0 5 ( b ) o f t h e LHWCA.
T h i s
c l a i m
was
n o t p l e d i n [ F r a z i e r ' s ] C o m p l a i n t and i s n o t
p r o p e r l y b e f o r e t h e C o u r t . "
F r a z i e r does n o t a r g u e o r p r o v i d e
a u t h o r i t y t o s u p p o r t an
a r g u m e n t t h a t t h e t r i a l
c o u r t e r r e d when i t
c o n c l u d e d t h a t he
had n o t p l e a d e d a c l a i m u n d e r § 9 0 5 ( b ) and t h a t s u c h a c l a i m
was
n o t p r o p e r l y
b e f o r e t h e c o u r t .
Thus, he h a s w a i v e d any
38
1060016
s u c h a r g u m e n t and we n e e d n o t c o n s i d e r
i t f u r t h e r .
See Chunn,
s u p r a .
1 5
IV.
C o n c l u s i o n
B a s e d on t h e f o r e g o i n g ,
we
a f f i r m t h e summary j u d g m e n t .
AFFIRMED.
Cobb, C . J . , and L y o n s , S t u a r t , and B o l i n , J J . ,
c o n c u r .
1
5 F r a z i e r
d i d n o t
r e f e r
t o §
905(b)
i n h i s
c o m p l a i n t
a g a i n s t
C o r e ; he d i d n o t name t h e v e s s e l
as a p a r t y
t o h i s
a c t i o n ; and he d i d n o t c l a i m t h a t he was
f i l i n g h i s c l a i m s i n
t h e a l t e r n a t i v e
( i . e . , as a seaman a n d / o r as an e m p l o y e e u n d e r
t h e LHWCA).
F r a z i e r does n o t a r g u e t h a t t h e
f i r s t
c l a i m i n
h i s
c o m p l a i n t m i g h t be c o n s t r u e d as a s s e r t i n g a c l a i m u n d e r §
9 0 5 ( b ) .
N e v e r t h e l e s s ,
t h e t r i a l c o u r t w e n t on t o s t a t e
t h a t ,
e v e n i f F r a z i e r ' s c o m p l a i n t c a n be r e a d as a l l e g i n g a
c l a i m
u n d e r
§
9 0 5 ( b ) ,
" C o r e
w o u l d
s t i l l
be
e n t i t l e d
t o summary
j u d g m e n t b e c a u s e
[ F r a z i e r ] r e g u l a r l y p e r f o r m e d s h i p - b u i l d i n g
and
s h i p - r e p a i r work
f o r C o r e and i s t h e r e f o r e
b a r r e d
f r o m
r e c o v e r i n g
u n d e r § 905(b) p u r s u a n t t o t h e e x p r e s s
p r o v i s i o n s
o f t h a t
s e c t i o n . "
39 | December 4, 2009 |
89fc6725-3404-44ed-a9c5-362a6bed81dc | Ex parte Betty Jane Winstead, as personal representative of the estate of Robert Earl Winstead, Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Noble Winstead Yeager v. Betty Jane Winstead, as personal representative of the estate of Robert Earl Winstead, Jr.) | N/A | 1071601 | Alabama | Alabama Supreme Court | REL: 12/04/2009
Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e
r e q u e s t e d t o n o t i f y t h e
Reporter of Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741
((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s
may
be
made b e f o r e
t h e o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1071601
Ex p a r t e B e t t y Jane Winstead, as p e r s o n a l r e p r e s e n t a t i v e o f
the e s t a t e o f Robert E a r l Winstead,
J r .
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
( I n r e :
Noble Winstead Yeager
v.
B e t t y Jane Winstead, as p e r s o n a l r e p r e s e n t a t i v e o f
the
e s t a t e o f Robert E a r l Winstead,
J r . )
(Tuscaloosa C i r c u i t Court, CV-05-1372;
Court o f C i v i l Appeals, 2060583)
STUART,
J u s t i c e .
1071601
We
g r a n t e d
c e r t i o r a r i
r e v i e w
t o
d e t e r m i n e w h e t h e r
t h e
d e c i s i o n
o f
t h e
C o u r t
o f
C i v i l
A p p e a l s
h o l d i n g
t h a t
N o b l e
W i n s t e a d Y e a g e r , t h e f o r m e r w i f e o f R o b e r t E a r l W i n s t e a d , J r . ,
who
i s now
d e c e a s e d , was
e n t i t l e d t o p o s t j u d g m e n t i n t e r e s t
on
t h e
o r d e r e d
a l i m o n y i n g r o s s
and
t h e
a t t o r n e y
f e e s
a w a r d e d
h e r
i n
t h e i r
f i n a l j u d g m e n t
o f
d i v o r c e
c o n f l i c t s
w i t h
t h a t
c o u r t ' s d e c i s i o n i n
B i r m i n g h a m P a i n C e n t e r v. C o s g r o v e ,
896
So.
2d 538
( A l a . C i v . App.
2 0 0 4 ) .
We
r e v e r s e
and
remand.
F a c t s
and
P r o c e d u r a l
H i s t o r y
On
A p r i l
24,
2001,
t h e
T u s c a l o o s a
C i r c u i t C o u r t
e n t e r e d
a f i n a l j u d g m e n t o f d i v o r c e d i s s o l v i n g t h e b o n d s o f m a t r i m o n y
b e t w e e n Y e a g e r and
W i n s t e a d .
The
o r d e r
d i v i d e d t h e
a s s e t s
b e t w e e n them and a w a r d e d Y e a g e r t h e sum
o f $31,000 as
a l i m o n y
i n g r o s s .
The j u d g m e n t s t a t e s , i n p e r t i n e n t
p a r t :
" ( 1 5 )
As
a d d i t i o n a l
p r o p e r t y
s e t t l e m e n t
( a l i m o n y
i n g r o s s ) ,
t h e
H u s b a n d
s h a l l
pay
t o
t h e
W i f e
t h e
sum
o f
T h i r t y
One
T h o u s a n d
D o l l a r s
( $ 3 1 , 0 0 0 . 0 0 ) ,
p a y a b l e ,
t o g e t h e r
w i t h
a c c r u e d
i n t e r e s t
a t t h e
s t a t u t o r y r a t e o f
12%,
as
f o l l o w s :
(a) $ 6 , 0 0 0 . 0 0 w i t h i n s i x t y
(60) d a y s f r o m t h e
e n t r y
o f t h i s j u d g m e n t ; (b) $ 1 2 , 5 0 0 . 0 0 on o r b e f o r e May
1,
2 0 0 2 ; and
(c)
t h e
b a l a n c e
o f $ 1 2 , 5 0 0 . 0 0
p l u s a l l
i n t e r e s t
a c c r u e d
s i n c e
t h e
e n t r y
o f
t h i s
j u d g m e n t
s h a l l be p a i d on o r b e f o r e May
1, 2003.
The
H u s b a n d
s h a l l h a v e t h e
r i g h t
t o p r e p a y
s a i d amount a t
any
t i m e w i t h o u t
p e n a l t y . "
( E m p h a s i s added.)
2
1071601
Y e a g e r moved t o
a l t e r , amend, o r v a c a t e
t h e j u d g m e n t .
The
c i r c u i t
c o u r t amended t h e j u d g m e n t on J u l y 3, 2001,
a w a r d i n g
Y e a g e r
a d d i t i o n a l sums o f $4,500
f o r a l i m o n y
i n g r o s s
and
$2,500
f o r r e a s o n a b l e
a t t o r n e y
f e e s .
T h a t
o r d e r
s t a t e s
i n
p e r t i n e n t
p a r t :
" ( 3 )
I t
i s h e r e b y
o r d e r e d
t h a t
t h e
f i n a l d e c r e e o f d i v o r c e p r e v i o u s l y e n t e r e d
by t h e C o u r t
be m o d i f i e d as f o l l o w s :
"(A)
P a r a g r a p h
15
( A l i m o n y
i n G r o s s )
i s m o d i f i e d t o add t h e f o l l o w i n g p r o v i s i o n :
' A d d i t i o n a l l y ,
as
c o m p e n s a t i o n
f o r
t h e
r e a s o n a b l e
r e n t a l
v a l u e
o f
t h e
r i v e r
p r o p e r t y
o c c u p i e d
by
H u s b a n d
d u r i n g
t h e
p e n d e n c y o f t h e s e p r o c e e d i n g s ,
t h e H u s b a n d
s h a l l p a y t o t h e W i f e t h e sum
o f $ 4 , 5 0 0 . 0 0 ,
w h i c h amount
s h a l l be
p a i d i n
f u l l
w i t h i n
n i n e t y
(90)
d a y s
f r o m
t h e
e n t r y
o f
t h i s
o r d e r . '
"(B)
P a r a g r a p h
17
( A t t o r n e y F e e s )
i s
m o d i f i e d
t o r e a d
as
f o l l o w s : 'The
H u s b a n d
s h a l l
p a y
t o
t h e
W i f e
t h e
sum
o f
Two
T h o u s a n d F i v e H u n d r e d D o l l a r s
($2,500.00)
as
a
r e a s o n a b l e
p o r t i o n
o f
h e r
a t t o r n e y
f e e s i n c u r r e d i n t h i s m a t t e r .
S a i d amount
s h a l l
be
p a i d
i n
f u l l
w i t h i n n i n e t y
(90)
d a y s f r o m t h e e n t r y o f t h i s
o r d e r . ' "
( E m p h a s i s added.)
Y e a g e r
a p p e a l e d
t h e
j u d g m e n t ; W i n s t e a d
d i d
n o t
c r o s s -
a p p e a l ,
i . e . , W i n s t e a d d i d n o t c h a l l e n g e t h e f a c t t h a t he
was
o b l i g a t e d t o p a y Y e a g e r a t l e a s t t h e amount s p e c i f i e d i n t h e
3
1071601
j u d g m e n t .
On A u g u s t 29, 2 0 0 1 , W i n s t e a d t e n d e r e d t h r e e c h e c k s
t o Y e a g e r and h e r a t t o r n e y , L a u r i e B r a n t l e y , i n t h e amounts o f
$ 3 1 , 0 0 0 , $4,500, and $2,500.
I n a
l e t t e r
a c c o m p a n y i n g
t h e
c h e c k s , W i n s t e a d ' s
c o u n s e l s t a t e d :
"These
c h e c k s
a r e b e i n g
t e n d e r e d
as payment
i n
f u l l
o f
t h e
p r e s e n t l y
o u t s t a n d i n g
o b l i g a t i o n s
u n d e r
t h e
d i v o r c e
d e c r e e
as
l a s t
m o d i f i e d . "
Y e a g e r ' s c o u n s e l a s k e d W i n s t e a d ' s c o u n s e l t o " c o n f i r m ... i n
w r i t i n g t h a t
[ t h e n e g o t i a t i o n o f t h e c h e c k s ] w o u l d i n no
way
c o m p r o m i s e o r p r e j u d i c e
any
r i g h t s
[ Y e a g e r ] has
on a p p e a l ,
s p e c i f i c a l l y
an
a p p e a l o f any
o f t h o s e
s p e c i f i e d
a w a r d s . "
W i n s t e a d ' s
c o u n s e l r e s p o n d e d
i n a
l e t t e r
d a t e d A u g u s t
31,
2 0 0 1 , as
f o l l o w s :
"As you know, we t e n d e r e d t h e p a y m e n t s
r e q u i r e d
by
J u d g e
L i s e n b y ' s o r d e r .
You
may
n e g o t i a t e
t h e
c h e c k s o r n o t as you
p l e a s e .
The
l e g a l
e f f e c t
o f
t h e
n e g o t i a t i o n i s an i s s u e w h i c h you and
[ Y e a g e r ]
w i l l
h a v e t o d e c i d e f o r y o u r s e l v e s .
However,
t h e
c h e c k s a r e b e i n g t e n d e r e d as payment i n f u l l
o f t h e
o b l i g a t i o n s owed and as r e q u i r e d u n d e r t h e
c o u r t ' s
o r d e r . "
( E m p h a s i s added.) B e c a u s e W i n s t e a d ' s c o u n s e l w o u l d n o t c o n f i r m
i n
w r i t i n g
t h a t
t h e
n e g o t i a t i o n
o f
t h e
c h e c k s
w o u l d
n o t
p r e j u d i c e Y e a g e r ' s r i g h t s on a p p e a l , Y e a g e r ' s c o u n s e l r e t u r n e d
t h e
c h e c k s t o W i n s t e a d ' s c o u n s e l .
I n t h e l e t t e r
a c c o m p a n y i n g
t h e
r e t u r n e d c h e c k s , Y e a g e r ' s c o u n s e l s t a t e d :
4
1071601
" E n c l o s e d p l e a s e f i n d [ W i n s t e a d ' s ]
t h r e e c h e c k s
w h i c h w e r e p r e v i o u s l y s e n t t o me.
I am r e t u r n i n g
them
i n
l i g h t
o f
y o u r
A u g u s t
3 1 , 2001
l e t t e r ,
w h e r e i n you d e c l i n e t o c o n f i r m t o me i n w r i t i n g
t h a t
t h e
a c c e p t a n c e
o f
t h e s e
c h e c k s
w o u l d
i n no way
c o m p r o m i s e
[ Y e a g e r ' s ]
a p p e a l .
I t g o e s
w i t h o u t
s a y i n g t h a t i t
i s i m p o s s i b i l i t y
[ s i c ] f o r
me a n d / o r
my
c l i e n t t o n e g o t i a t e
t h e s e
c h e c k s
w i t h o u t
t h a t
a s s u r a n c e .
" P l e a s e
a d v i s e
[ W i n s t e a d ]
t h a t
p o s t j u d g m e n t
i n t e r e s t a t a r a t e o f t w e l v e
p e r c e n t
(12%) w i l l be
e x p e c t e d
a t t h e c o n c l u s i o n o f
t h i s
a p p e a l .
I f
[ W i n s t e a d ]
w o u l d
l i k e
t o a v o i d t h e same, he c a n
s i m p l y
w a i v e any c h a l l e n g e o f t h e p e n d i n g
a p p e a l
b a s e d on an
' a c c e p t a n c e
o f b e n e f i t s '
a r g u m e n t , o r
t h e
l i k e . "
W i n s t e a d ' s c o u n s e l
r e s e n t t h e c h e c k s t o Y e a g e r and h e r
c o u n s e l w i t h a l e t t e r s t a t i n g i n p e r t i n e n t p a r t t h a t
" t h e
t e n d e r o f t h i s money i s s u f f i c i e n t t o b a r any
c l a i m f o r i n t e r e s t
p o s t j u d g m e n t a t t h e e x o r b i t a n t
t w e l v e
p e r c e n t
r a t e .
T h e r e f o r e ,
I am
t e n d e r i n g
t h e s e
c h e c k s t o you a g a i n .
W h e t h e r you a c c e p t t h e
money
o r d o n ' t
a c c e p t
t h e money
i s up t o y o u ;
h o w e v e r ,
t h e t e n d e r
i s t h e a c t w h i c h
t o l l s
t h e
i n t e r e s t a c c r u a l . The o r i g i n a l t e n d e r was made w i t h
o u r
l e t t e r o f [ 2 9 ] , A u g u s t 2 0 0 1 . "
Y e a g e r and h e r c o u n s e l n e v e r n e g o t i a t e d t h e c h e c k s , and t h e
moneys were n o t i n t e r p l e a d e d .
I n 2002, t h e C o u r t o f
C i v i l
A p p e a l s
a f f i r m e d t h e c i r c u i t c o u r t ' s f i n a l j u d g m e n t o f d i v o r c e
w i t h o u t an o p i n i o n .
W i n s t e a d v. W i n s t e a d ,
863 So. 2d 1164
( A l a . C i v .
App. 2 0 0 2 ) ( t a b l e ) .
5
1071601
W i n s t e a d
d i e d
i n
J u l y
2004.
Y e a g e r ,
who
had
n o t
n e g o t i a t e d
t h e c h e c k s ,
f i l e d
a v e r i f i e d
c l a i m i n t h e
p r o b a t e
c o u r t
a g a i n s t W i n s t e a d ' s e s t a t e
f o r t h e amounts o f
$ 3 1 , 0 0 0 ,
$4,500,
and
$2,500, p l u s
a c c r u e d
i n t e r e s t
a t
t h e
s t a t u t o r y
r a t e
o f
12
p e r c e n t .
She
a l s o
f i l e d
a
d e c l a r a t o r y - j u d g m e n t
a c t i o n i n t h e
c i r c u i t c o u r t s e e k i n g t h e same r e l i e f she
s o u g h t
a g a i n s t W i n s t e a d ' s e s t a t e u n d e r h e r
v e r i f i e d c l a i m f i l e d
w i t h
t h e p r o b a t e
c o u r t .
The
c l a i m a g a i n s t W i n s t e a d ' s e s t a t e
i n
t h e
p r o b a t e
c o u r t
was
c o n s o l i d a t e d
w i t h
t h e
d e c l a r a t o r y -
j u d g m e n t a c t i o n i n t h e
c i r c u i t
c o u r t .
I n F e b r u a r y 2007,
t h e
c i r c u i t
c o u r t
e n t e r e d
a j u d g m e n t
s t a t i n g :
" A f t e r
t h o r o u g h l y
c o n s i d e r i n g
t h e
f a c t s
and
b r i e f s
f i l e d ,
t h e
amount
o f
t h e
c l a i m
i s
h e r e b y
f i x e d
and
e s t a b l i s h e d
a t
$38,000
w i t h o u t
a c c r u e d
i n t e r e s t .
A l t h o u g h
t h e
u n c e r t a i n t y
a b o u t
t h e
a c c e p t a n c e o f t h e
t e n d e r
o f t h e f u n d s on A u g u s t
29,
2001
i s u n d e r s t a n d a b l e and
[ Y e a g e r ' s ] a r g u m e n t s
a r e
made i n g o o d f a i t h ,
i t was
[ Y e a g e r ] who
a p p e a l e d
t h e
j u d g m e n t o f t h e
[ c i r c u i t ] c o u r t c a s t i n g d o u b t on
t h e
c e r t a i n t y
o r
f i n a l i t y
o f
t h e
j u d g m e n t .
The
f u n d s
were n o t
t e n d e r e d on
t h e
c o n d i t i o n t h a t
t h e
a p p e a l
be
d i s m i s s e d
o r w i t h d r a w n . A l t h o u g h
t h e
a p p e a l
was
a v a l i d e x e r c i s e o f
[ Y e a g e r ] ' s
r i g h t t o c h a l l e n g e
a
p o r t i o n o f t h e j u d g m e n t , t h e
t e n d e r
o f t h e f u n d s
on
t h e
p o r t i o n
n o t
u n d e r
r e v i e w
was
s u f f i c i e n t
t o
p r e c l u d e
t h e
i m p o s i t i o n
o f
i n t e r e s t
t h a t
o t h e r w i s e
w o u l d
a t t a c h
i f
t h e
j u d g m e n t
had
n o t
b e e n
c h a l l e n g e d . "
6
1071601
Y e a g e r
a p p e a l e d
t o
t h i s
C o u r t ;
h o w e v e r ,
a f t e r
i n i t i a l
r e v i e w we d e t e r m i n e d t h a t
j u r i s d i c t i o n r e s t e d i n t h e C o u r t
o f
C i v i l A p p e a l s and
t r a n s f e r r e d t h e c a s e t o t h a t
c o u r t .
The
C o u r t o f
C i v i l A p p e a l s r e v e r s e d
t h e j u d g m e n t o f
t h e
c i r c u i t
c o u r t ,
s t a t i n g :
"On
a p p e a l ,
Y e a g e r
a r g u e s
t h a t
t h e
c i r c u i t
c o u r t
e r r e d by
f a i l i n g
t o a w a r d h e r p o s t j u d g m e n t i n t e r e s t
f o r
t h e amounts due
h e r
f r o m W i n s t e a d .
I n
W i l h i t e
v.
R y a n ,
66
A l a .
10 6
(1
88 0
) ,
t h e
A l a b a m a
Supreme
C o u r t
s t a t e d
t h a t
' e v e r y
t e n d e r
o f
money,
by
a
d e b t o r
t o
a
c r e d i t o r , must
be
a b s o l u t e ,
and
n o t
c o u p l e d w i t h
c o n d i t i o n s . '
66 A l a .
a t
109.
Y e a g e r
a r g u e s
t h a t
W i n s t e a d ' s
s t a t e m e n t
i n
t h e
l e t t e r
a c c o m p a n y i n g t h e
t h r e e
c h e c k s t h a t
t h e
c h e c k s were
b e i n g
t e n d e r e d
'as payment
i n
f u l l '
c o n s t i t u t e d
a
c o n d i t i o n .
We
a g r e e .
The
c h e c k s
were
s e n t
t o
Y e a g e r p u r s u a n t t o a j u d g m e n t as t o w h i c h an
a p p e a l
was
p e n d i n g ; had
t h i s
c o u r t
d e t e r m i n e d t h a t
a p p e a l
i n
Y e a g e r ' s
f a v o r ,
i t m i g h t
have
r e s u l t e d
i n
an
a l t e r a t i o n o f t h e amount due
h e r f r o m W i n s t e a d u n d e r
t h e
d i v o r c e
j u d g m e n t .
Thus,
t h a t j u d g m e n t was
i n
d i s p u t e
a t
t h e
t i m e
t h e
c h e c k s
were
i s s u e d
t o
Y e a g e r .
"'As
a
g e n e r a l
r u l e when a c h e c k
i s
t e n d e r e d
upon
t h e
c o n d i t i o n
t h a t
t h e
c r e d i t o r
a c c e p t
i t i n
f u l l
payment
o f
a
d i s p u t e d
c l a i m ,
t h e r e
a r e
two
o p t i o n s
a v a i l a b l e
t o t h e
c r e d i t o r .
He
may
r e j e c t
t h e
t e n d e r
o r
a c c e p t
t h e
t e n d e r
w i t h
t h e
c o n d i t i o n
a t t a c h e d .
E n d o r s i n g
and
d e p o s i t i n g
t h e
c h e c k
i s
t a n t a m o u n t
t o
a c c e p t i n g
t h e
t e n d e r
w i t h
t h e
c o n d i t i o n
a t t a c h e d .
Such
a c t s
f u l f i l l
t h e
r e q u i r e m e n t s
f o r
an
a c c o r d
and
s a t i s f a c t i o n . '
7
1071601
" B i v i n s v. W h i t e D a i r y , 378 So. 2d 1122, 1124 ( A l a .
C i v .
App.
1
97 9 ) .
See
a l s o
P u b l i c
N a t ' l
L i f e
I n s .
Co. v. H i g h s m i t h , 47 A l a . App.
488, 256 So. 2d
912
( 1 9 7 1 ) ; and W a l l a c e v. W a l l a c e , 909 So. 2d 827 ( A l a .
C i v .
App.
2 0 0 5 ) ( w i f e ' s a c c e p t a n c e
o f
c h e c k
t h a t
s p e c i f i e d
'payment i n
f u l l '
and was
a c c o m p a n i e d
by
a l e t t e r
s t a t i n g t h a t t h e c h e c k was f o r t h e ' b a l a n c e
of
t h e p r o p e r t y s e t t l e m e n t ' i n t h e p a r t i e s '
d i v o r c e
j u d g m e n t
a m o u n t e d t o an a c c o r d and
s a t i s f a c t i o n
o f
t h e
p r o p e r t y
s e t t l e m e n t ) .
" B e c a u s e
t h e l a n g u a g e u s e d by W i n s t e a d i n h i s
l e t t e r ,
t h a t t h e c h e c k s were b e i n g s e n t as 'payment
i n
f u l l , '
c o u l d
h a v e
a f f e c t e d
Y e a g e r ' s
r i g h t s
t o
r e c o v e r
f r o m W i n s t e a d i f h e r a p p e a l r e s u l t e d
i n a
r e v e r s a l
and
a
p o t e n t i a l
i n c r e a s e
o f
t h e
a l i m o n y
p r o v i s i o n i n t h e d i v o r c e j u d g m e n t , we c o n c l u d e t h a t
t h a t l a n g u a g e a m o u n t e d t o a c o n d i t i o n
a c c o m p a n y i n g
t h e
t e n d e r o f t h e c h e c k s .
As a r e s u l t , Y e a g e r ,
by
p r o t e c t i n g
h e r own
i n t e r e s t s
and
o p t i n g
t o
r e j e c t
W i n s t e a d ' s
t e n d e r ,
l o s t
h e r
o p p o r t u n i t y
t o
i n v e s t
t h e
money a w a r d e d
t o h e r
i n t h e
d i v o r c e
j u d g m e n t
and, t h e r e f o r e , i s e n t i t l e d t o p o s t j u d g m e n t
i n t e r e s t
on t h e same."
Y e a g e r v. W i n s t e a d ,
[Ms. 2 0 6 0 5 8 3 , A u g u s t 8, 2008]
So.
3d
,
( A l a . C i v . App.
2 0 0 8 ) .
Judge
B r y a n ,
j o i n e d by Judge M o o r e , d i s s e n t e d
f r o m t h e
m a i n
o p i n i o n ,
s t a t i n g :
" I
r e s p e c t f u l l y
d i s s e n t .
On
A u g u s t
29,
2 0 0 1 ,
R o b e r t E a r l W i n s t e a d , J r . , t e n d e r e d t h r e e c h e c k s t o
N o b l e W i n s t e a d Y e a g e r . The
c h e c k s were
a c c o m p a n i e d
by
a
l e t t e r
s t a t i n g
t h a t
t h e
c h e c k s were
' b e i n g
t e n d e r e d
as
payment
i n
f u l l
o f
t h e
p r e s e n t l y
o u t s t a n d i n g o b l i g a t i o n s u n d e r t h e d i v o r c e d e c r e e as
l a s t m o d i f i e d . '
( E m p h a s i s added.)
The m a i n
o p i n i o n
s t a t e s
t h a t
t h e p a r t i e s '
d i v o r c e
'judgment
was
i n
d i s p u t e
a t
t h e
t i m e
t h e
c h e c k s
were
i s s u e d
t o
8
1071601
Y e a g e r . '
So. 3d a t
. However, Y e a g e r d i d n o t
and does
n o t d i s p u t e
t h a t t h e
t o t a l amount o f t h e
t h r e e
c h e c k s t e n d e r e d t o h e r r e p r e s e n t e d , a t
t h a t
t i m e ,
t h e
f u l l amount t h a t she was
owed u n d e r
t h e
d i v o r c e
j u d g m e n t .
By
o f f e r i n g
Y e a g e r
t h e
c h e c k s ,
W i n s t e a d
s i m p l y
s o u g h t
t o
f u l f i l l
h i s
o b l i g a t i o n
p u r s u a n t t o t h e j u d g m e n t ; W i n s t e a d d i d n o t o f f e r t h e
c h e c k s as a c o n d i t i o n a l payment o f any s o r t . When a
j u d g m e n t d e b t o r makes moneys a v a i l a b l e t o a j u d g m e n t
c r e d i t o r
w i t h o u t any
r e s t r i c t i o n
o r
c o n d i t i o n
n o t
f o u n d
i n
t h e
j u d g m e n t
i t s e l f ,
t h e
j u d g m e n t
i s
s a t i s f i e d and p o s t j u d g m e n t
i n t e r e s t u n d e r § 8-8-10,
A l a .
Code
1975,
s t o p s
a c c r u i n g .
B i r m i n g h a m
P a i n
C t r . ,
I n c . v. C o s g r o v e ,
8
96 So.
2d 538,
545 ( A l a .
C i v .
App.
2 0 0 4 ) .
T h e r e f o r e ,
i n
t h i s
c a s e ,
W i n s t e a d ' s
u n c o n d i t i o n a l
t e n d e r
o f
t h e
c h e c k s
s t o p p e d t h e a c c r u a l o f p o s t j u d g m e n t
i n t e r e s t .
"The
m a i n
o p i n i o n
c i t e s
c a s e s
c o n c e r n i n g t h e
d o c t r i n e
o f a c c o r d and
s a t i s f a c t i o n .
However,
h a d
Y e a g e r
a c c e p t e d
t h e
c h e c k s ,
an
a c c o r d
and
s a t i s f a c t i o n
w o u l d
n o t
h a v e
o c c u r r e d ;
r a t h e r ,
Y e a g e r ' s
a c c e p t a n c e
o f
t h e
c h e c k s
w o u l d
have
c o m p l e t e d a payment o f t h e j u d g m e n t amount owed h e r .
'Payment i s a d i s c h a r g e o f a d e b t by a c o m p l i a n c e
w i t h t h e t e r m s o f t h e o b l i g a t i o n , w h e r e a s a c c o r d and
s a t i s f a c t i o n
i s
an
a g r e e m e n t ,
f o l l o w e d
by
an
e x e c u t i o n , t o d i s c h a r g e a demand by t h e g i v i n g
and
a c c e p t a n c e o f s o m e t h i n g d i f f e r e n t f r o m t h a t t o w h i c h
t h e c r e d i t o r i s e n t i t l e d . '
1 Am.
J u r . 2d A c c o r d and
S a t i s f a c t i o n
§
3
(2005)
( f o o t n o t e s
o m i t t e d ) .
M o r e o v e r ,
i n s o f a r
as
Y e a g e r ' s
2001
a p p e a l o f
t h e
d i v o r c e j u d g m e n t
was
b a s e d on an a r g u m e n t t h a t
t h e
d i v i s i o n
o f t h e m a r i t a l
e s t a t e was
i n e q u i t a b l e ,
I
n o t e
t h a t
' [ w ] h e r e
a j u d g m e n t
i s a p p e a l e d on
t h e
g r o u n d
t h a t
t h e
damages
a w a r d e d
a r e
i n a d e q u a t e ,
a c c e p t a n c e o f payment o f t h e amount o f t h e
j u d g m e n t ,
s t a n d i n g
a l o n e , does
n o t amount
t o an
a c c o r d
and
s a t i s f a c t i o n
o f t h e
e n t i r e
c l a i m . '
1 Am.
J u r . 2d
A c c o r d
and
S a t i s f a c t i o n
§
32
(2005)
( f o o t n o t e
o m i t t e d ) .
9
1071601
"The
c i r c u i t
c o u r t
c o r r e c t l y c o n c l u d e d
t h a t
W i n s t e a d ' s
u n c o n d i t i o n a l
t e n d e r
o f
t h e
c h e c k s
s t o p p e d
t h e
a c c r u a l
o f p o s t j u d g m e n t
i n t e r e s t .
See
C o s g r o v e ,
s u p r a .
A c c o r d i n g l y ,
I w o u l d
a f f i r m
t h e
c i r c u i t
c o u r t ' s
j u d g m e n t . "
So.
3d a t
.
W i n s t e a d ' s
e s t a t e
p e t i t i o n e d
t h i s
C o u r t
f o r
a w r i t
o f
c e r t i o r a r i
t o
a d d r e s s w h e t h e r
t h e
C o u r t
o f
C i v i l
A p p e a l s '
d e c i s i o n
t h a t Y e a g e r
was
e n t i t l e d
t o p o s t j u d g m e n t
i n t e r e s t
c o n f l i c t s
w i t h
t h a t
c o u r t ' s
d e c i s i o n
i n
B i r m i n g h a m
P a i n
C e n t e r .
S t a n d a r d o f R e v i e w
"The
s t a n d a r d
o f r e v i e w
on a p e t i t i o n f o r a w r i t
o f
c e r t i o r a r i
i s
s e t t l e d .
" ' I n r e v i e w i n g a d e c i s i o n o f t h e
C o u r t
o f
C i v i l A p p e a l s on
a p e t i t i o n
f o r a w r i t
o f
c e r t i o r a r i ,
t h i s
C o u r t
" a c c o r d s
no
p r e s u m p t i o n
o f
c o r r e c t n e s s
t o
t h e
l e g a l
c o n c l u s i o n s
o f
t h e
i n t e r m e d i a t e
a p p e l l a t e
c o u r t .
T h e r e f o r e ,
we
must
a p p l y
de
novo
t h e
s t a n d a r d
o f r e v i e w
t h a t was
a p p l i c a b l e
i n
t h e C o u r t o f
C i v i l
A p p e a l s . "
Ex
p a r t e
T o y o t a
M o t o r
C o r p . ,
684
So.
2d
132,
135
( A l a .
1 9 9 6 ) . ' "
Ex p a r t e F o l s o m ,
[Ms. 1071705, M a r c h 20,
200 9]
So.
3d
,
( A l a .
2 0 0 9 ) ( q u o t i n g
Ex p a r t e E x x o n M o b i l C o r p . , 926
So.
2d
303,
308
( A l a . 2 0 0 5 ) ) .
See
a l s o R a l e y v. M a i n ,
987
So.
2d
569,
575
( A l a .
2 0 0 7 ) ( s t a t i n g
t h a t
when
a
t r i a l
c o u r t ' s
10
1071601
j u d g m e n t
i s b a s e d
on
u n d i s p u t e d
f a c t s
and
d o c u m e n t a r y
e v i d e n c e ,
t h i s
C o u r t
w i l l
a p p l y
a de novo
s t a n d a r d o f
r e v i e w ) ;
A l f a Mut. I n s . Co. v . S m a l l , 82
9 So. 2d 743, 745
( A l a .
2 0 0 2 ) ( " O u r r e v i e w o f a d e c l a r a t o r y j u d g m e n t i s g e n e r a l l y
g o v e r n e d b y t h e o r e t e n u s
s t a n d a r d o f r e v i e w . However, i n
c a s e s
s u c h as
t h i s ,
where
t h e r e a r e no d i s p u t e d f a c t s and
where
t h e
j u d g m e n t
i s b a s e d
e n t i r e l y
upon
d o c u m e n t a r y
e v i d e n c e ,
no
s u c h
p r e s u m p t i o n
o f c o r r e c t n e s s a p p l i e s ; o u r
r e v i e w i s de n o v o . " ) .
A n a l y s i s
W i n s t e a d ' s
e s t a t e
c o n t e n d s
t h a t
t h e C o u r t
o f
C i v i l
A p p e a l s e r r e d i n h o l d i n g t h a t W i n s t e a d ' s t e n d e r o f payment o f
t h e
amounts
o r d e r e d i n t h e f i n a l
j u d g m e n t o f d i v o r c e
was
c o n d i t i o n a l a n d , c o n s e q u e n t l y , d i d n o t s t o p t h e a c c r u a l o f
p o s t j u d g m e n t
i n t e r e s t .
S e c t i o n 8-8-10, A l a .
Code 1975, p r o v i d e s , i n p e r t i n e n t
p a r t :
" J u d g m e n t s f o r
t h e payment o f money, o t h e r t h a n
c o s t s ,
i f b a s e d
upon
a
c o n t r a c t
a c t i o n ,
b e a r
i n t e r e s t ... a t t h e same r a t e o f i n t e r e s t as s t a t e d
i n
s a i d
c o n t r a c t ;
a l l o t h e r
j u d g m e n t s
s h a l l
b e a r
i n t e r e s t a t t h e r a t e o f 12 p e r c e n t p e r annum
"
11
1071601
T h e r e f o r e ,
f r o m t h e t i m e a j u d g m e n t i s e n t e r e d a g a i n s t a p a r t y
f o r
t h e
payment
o f money
u n t i l
t h e
t i m e
t h e
j u d g m e n t
i s
s a t i s f i e d ,
t h e j u d g m e n t
s h a l l b e a r
i n t e r e s t .
I n B i r m i n g h a m
P a i n
C e n t e r ,
t h e
C o u r t
o f
C i v i l
A p p e a l s
c o n s i d e r e d
how
a p a r t y
can
s a t i s f y
a j u d g m e n t
t o
s t o p
t h e
a c c r u a l
o f
i n t e r e s t .
C o s g r o v e
s u e d B i r m i n g h a m
P a i n
C e n t e r
("BPC"), and
a j u d g m e n t i n t h e amount o f $150,000 was
e n t e r e d
a g a i n s t BPC.
BPC
d e p o s i t e d
i n t o t h e
t r i a l c o u r t t h e amount o f
t h e
j u d g m e n t
p l u s
c o u r t
c o s t s .
I n
r u l i n g
t h a t
BPC
had
s a t i s f i e d
t h e j u d g m e n t so as t o s t o p t h e a c c r u a l o f
i n t e r e s t ,
t h e C o u r t o f
C i v i l A p p e a l s
s t a t e d :
"The
d i s p o s i t i v e
i s s u e
as
t o
w h e t h e r
BPC
s a t i s f i e d
o r
p a r t i a l l y
s a t i s f i e d
t h e
j u d g m e n t
a g a i n s t i t a t any t i m e i s ... w h e t h e r moneys owed by
BPC
t o
C o s g r o v e
u n d e r
t h e
j u d g m e n t
were
made
a v a i l a b l e
t o
C o s g r o v e
w i t h o u t
any
r e s t r i c t i o n
o r
c o n d i t i o n n o t f o u n d i n t h e j u d g m e n t
i t s e l f .
To
t h e
e x t e n t
s u c h moneys were made a v a i l a b l e
t o
C o s g r o v e
w i t h o u t
r e s t r i c t i o n ,
t h e
' l o s s
o f
u s e '
o f
t h o s e
moneys by C o s g r o v e came t o an end,
i n t e r e s t u n d e r §
8-8-10 t h e r e f o r e s t o p p e d a c c r u i n g , and
t h e j u d g m e n t
was
s a t i s f i e d . "
896
So.
2d a t 545.
The
c o u r t h e l d t h a t BPC
had
s a t i s f i e d
t h e
j u d g m e n t and
t h a t i n t e r e s t s t o p p e d a c c r u i n g when BPC
p a i d
t h e
amount
o f
t h e
j u d g m e n t
i n t o
t h e
t r i a l
c o u r t
w i t h o u t
any
c o n d i t i o n s b e c a u s e s u c h a c t i o n by BPC
p r o v i d e d C o s g r o v e
w i t h
12
1071601
t h e
o p p o r t u n i t y t o u s e a n d / o r
i n v e s t t h e moneys a w a r d e d a t
t r i a l .
W i n s t e a d ' s e s t a t e a r g u e s t h a t W i n s t e a d ' s t e n d e r i n g o f t h e
moneys a w a r d e d Y e a g e r i n
t h e d i v o r c e j u d g m e n t "as payment i n
f u l l
o f t h e p r e s e n t l y
o u t s t a n d i n g
o b l i g a t i o n s
u n d e r t h e
d i v o r c e
d e c r e e as
l a s t
m o d i f i e d "
p r o v i d e d
Y e a g e r
w i t h t h e
o p p o r t u n i t y t o i n v e s t t h e moneys a w a r d e d t o h e r a n d s t o p p e d
t h e
a c c r u a l o f i n t e r e s t .
Thus, i t
m a i n t a i n s
t h a t
W i n s t e a d
s a t i s f i e d
t h e r e q u i r e m e n t s o f B i r m i n g h a m
P a i n
C e n t e r .
We
a g r e e .
When
W i n s t e a d
t e n d e r e d
t h e moneys t o Y e a g e r , he was
v o l u n t a r i l y
p a y i n g
a j u d g m e n t he d i d n o t d i s p u t e .
By n o t
f i l i n g a c r o s s - a p p e a l a n d c h a l l e n g i n g t h e j u d g m e n t , W i n s t e a d
i n d i c a t e d
t h a t a t a minimum he was o b l i g a t e d t o p a y Y e a g e r
$ 3 8 , 0 0 0 . The s t a t e m e n t i n
t h e l e t t e r a c c o m p a n y i n g t h e c h e c k s
t h a t
" [ t ] h e s e c h e c k s a r e t e n d e r e d as payment i n f u l l o f
t h e
p r e s e n t l y o u t s t a n d i n g
o b l i g a t i o n s u n d e r t h e d i v o r c e d e c r e e as
l a s t m o d i f i e d "
d i d n o t c o n s t i t u t e a c o n d i t i o n t h a t c o u l d h a v e
a f f e c t e d
Y e a g e r ' s
r i g h t s
t o r e c o v e r
f r o m
W i n s t e a d i f
h e r
a p p e a l r e s u l t e d i n
a r e v e r s a l . When t h e
p h r a s e "as
payment i n
f u l l "
i s r e a d i n c o n t e x t ,
i t
i s n o t a c o n d i t i o n
w a r r a n t i n g
13
1071601
a p p l i c a t i o n o f t h e p r i n c i p l e s o f " a c c o r d
and
s a t i s f a c t i o n "
b u t
a
p h r a s e
i n d i c a t i n g
c o m p l i a n c e
w i t h
t h e
t e r m s
o f
t h e
" p r e s e n t l y o u t s t a n d i n g
o b l i g a t i o n s u n d e r t h e d i v o r c e d e c r e e as
l a s t m o d i f i e d . "
See
U n i t e d
S t a t e s
v. Hougham, 364
U.S.
310,
312
( 1 9 6 0 ) ( " I t
i s a g e n e r a l l y a c c e p t e d r u l e o f l a w
t h a t where
a j u d g m e n t i s a p p e a l e d on t h e g r o u n d t h a t t h e damages a w a r d e d
a r e
i n a d e q u a t e ,
a c c e p t a n c e
o f payment
o f
t h e amount
o f
t h e
u n s a t i s f a c t o r y j u d g m e n t d o e s n o t , s t a n d i n g
a l o n e , amount t o
an
a c c o r d
and
s a t i s f a c t i o n
o f
t h e
e n t i r e
c l a i m . ) .
I n d e e d ,
by
s t a t i n g
t h a t
t h e t e n d e r o f t h e c h e c k s was
payment u n d e r
t h e
" p r e s e n t l y o u t s t a n d i n g
o b l i g a t i o n s , " W i n s t e a d r e c o g n i z e d
t h a t
s a i d o b l i g a t i o n may
c h a n g e .
B e c a u s e we c o n c l u d e t h a t W i n s t e a d
d i d
n o t
p l a c e
a c o n d i t i o n
on
t h e moneys b u t
m e r e l y
t e n d e r e d
payment as
o r d e r e d
i n t h e
f i n a l j u d g m e n t , Y e a g e r had
use
o f
t h e moneys, i . e . , any
" l o s s o f u s e "
o f
t h e moneys by
Y e a g e r
was
e l i m i n a t e d , and
t h e d e c i s i o n o f t h e C o u r t o f C i v i l A p p e a l s
t h a t Y e a g e r was
e n t i t l e d
t o p o s t j u d g m e n t
i n t e r e s t
c o n f l i c t s
w i t h B i r m i n g h a m P a i n
C e n t e r .
Y e a g e r m a i n t a i n s
t h a t
t h e
r e l i a n c e by W i n s t e a d ' s
e s t a t e
on B i r m i n g h a m P a i n C e n t e r i s m i s p l a c e d b e c a u s e , she
s a y s ,
t h e
f a c t s a r e d i s t i n g u i s h a b l e . Y e a g e r r e c o g n i z e s
t h a t t h e p i v o t a l
14
1071601
q u e s t i o n i n d e t e r m i n i n g w h e t h e r p o s t j u d g m e n t i n t e r e s t
a c c r u e s
i s w h e t h e r t h e j u d g m e n t c r e d i t o r h a s t h e o p p o r t u n i t y t o u s e
t h e moneys w h i l e an a p p e a l
i s p e n d i n g .
She m a i n t a i n s
t h a t ,
u n l i k e i n B i r m i n g h a m P a i n C e n t e r where BPC's a p p e l l a t e
r i g h t s
were p r o t e c t e d when t h e moneys were i n t e r p l e a d e d i n t h e
t r i a l
c o u r t a n d C o s g r o v e h a d t h e o p p o r t u n i t y f o r t h e moneys t o be
p l a c e d i n an i n t e r e s t - b e a r i n g a c c o u n t , h e r a p p e l l a t e
r i g h t s
w e r e n o t p r o t e c t e d w i t h t h e t e n d e r o f t h e moneys t o h e r and
h e r
c o u n s e l .
Y e a g e r
s t a t e s
t h a t b e c a u s e W i n s t e a d d i d n o t
i n t e r p l e a d t h e moneys i n t h e c i r c u i t c o u r t and r e f u s e d t o s i g n
a r e l e a s e s t a t i n g t h a t n e g o t i a t i o n o f t h e c h e c k s d i d
n o t w a i v e
any
r e l i e f a w a r d e d Y e a g e r on t h e a p p e a l , she was d e n i e d "use
o f t h e money," a n d , t h e r e f o r e , p o s t j u d g m e n t i n t e r e s t
a c c r u e d .
I n e s s e n c e , she a r g u e s t h a t i f
she h a d " a c c e p t e d t h e b e n e f i t "
o f
t h e moneys,
h e r
a p p e a l
w o u l d
have
b e e n
j e o p a r d i z e d ;
t h e r e f o r e , she d i d
n o t have "use o f t h e money" u n t i l a f t e r h e r
a p p e a l was
f i n a l .
The
f a c t t h a t t h e moneys were t e n d e r e d t o Y e a g e r and h e r
c o u n s e l
and n o t i n t e r p l e a d e d i n t h e c i r c u i t
c o u r t d i d n o t
d e p r i v e
Y e a g e r o f t h e "use o f t h e money"
and w a r r a n t t h e
a c c r u a l o f p o s t j u d g m e n t i n t e r e s t .
I n B e n t l e y S y s t e m s , I n c .
v .
15
1071601
I n t e r g r a p h
C o r p . ,
922
So.
2d
61
( A l a . 2 0 0 5 ) ,
t h i s
C o u r t
s t a t e d :
" B e n t l e y
has
moved
t o
d i s m i s s
I n t e r g r a p h ' s
c r o s s - a p p e a l b e c a u s e I n t e r g r a p h d e p o s i t e d
B e n t l e y ' s
c h e c k
i n payment
o f
t h e
j u d g m e n t .
B e n t l e y
a r g u e s
t h a t
I n t e r g r a p h
has
a c c e p t e d
t h e
b e n e f i t
o f
t h e
j u d g m e n t ,
and,
t h e r e f o r e ,
t h a t
i t s
c r o s s - a p p e a l
s h o u l d be d i s m i s s e d .
See
R i c e v. S t a t e Farm F i r e
&
C a s .
Co.,
578
So.
2d
10 64
( A l a . 1 9 9 1 ) ;
and
M o b i l e
I n s . ,
I n c . v. S m i t h ,
441
So. 2d 894
( A l a . 1 9 8 3 ) , f o r
t h e g e n e r a l r u l e t h a t when an a p p e l l a n t a c c e p t s
t h e
b e n e f i t o f a j u d g m e n t , t h e a p p e a l
( o r
c r o s s - a p p e a l )
f r o m t h e j u d g m e n t
w i l l be
d i s m i s s e d .
" T h e r e a r e , h o w e v e r , e x c e p t i o n s t o t h i s
g e n e r a l
r u l e ,
as
I n t e r g r a p h
C o r p o r a t i o n
p o i n t s o u t
i n i t s
o p p o s i t i o n
t o B e n t l e y ' s m o t i o n t o d i s m i s s .
F i r s t ,
t h e
a c c e p t a n c e - o f - b e n e f i t s d o c t r i n e d o e s n o t
a p p l y
when t h e p a r t y v o l u n t a r i l y p a y s t h e j u d g m e n t .
See,
e.g.,
G a r n e r v. P r e w i t t , 32 A l a . 13
( 1 8 5 8 ) .
S e c o n d ,
a
p a r t y
c a n
m a i n t a i n
an
a p p e a l
o r
a
c r o s s - a p p e a l
w i t h o u t r e f u n d i n g j u d g m e n t p r o c e e d s i f t h e
o p p o s i n g
p a r t y w i l l
s u f f e r no
i n j u r y , e s p e c i a l l y i n a c a s e i n
w h i c h
t h e
p a r t y m a k i n g
t h e payment c a n n o t
r e c o v e r
l e s s
t h a n
t h e amount
o f
t h e
j u d g m e n t
p a i d
i n
t h e
e v e n t
a
new
t r i a l
i s
o r d e r e d .
See
A l c o
L a n d
&
T i m b e r
Co.
v.
B a e r ,
28 9 A l a .
567 ,
269
So.
2d
99
(19 7
2 ) . "
922
So.
2d a t 69-70.
Y e a g e r ' s
n e g o t i a t i o n
o f
t h e
moneys
w o u l d
n o t
h a v e
i m p a c t e d
h e r r i g h t s on a p p e a l .
W i n s t e a d v o l u n t a r i l y p a i d t h e
j u d g m e n t o r d e r e d by t h e c o u r t .
A d d i t i o n a l l y , Y e a g e r w o u l d n o t
h a v e s u f f e r e d any
i n j u r y on a p p e a l by a c c e p t i n g t h e b e n e f i t o f
t h e moneys.
W i n s t e a d d i d n o t
f i l e a c r o s s - a p p e a l c h a l l e n g i n g
16
1071601
t h e amount o f t h e j u d g m e n t a w a r d e d Y e a g e r ; c o n s e q u e n t l y ,
t h e
minimum amount o f t h e a w a r d ($38,000) was
n o t
i n d i s p u t e ,
and
Y e a g e r c o u l d
n o t
r e c o v e r
l e s s t h a n t h a t amount.
T h e r e f o r e ,
t h e
a c c e p t a n c e - o f - b e n e f i t s
d o c t r i n e
i s
i n a p p l i c a b l e
and
p r o v i d e s
no
r e a s o n a b l e
b a s i s
t o
s u p p o r t
an
a r g u m e n t
t h a t
Y e a g e r was
d e n i e d
t h e use
o f t h e moneys b e c a u s e t h e f u n d s were
n o t
i n t e r p l e a d e d .
Y e a g e r ' s
d i s t i n c t i o n
b e t w e e n
B i r m i n g h a m
P a i n C e n t e r and
t h i s c a s e i s n o t
p e r s u a s i v e .
C o n c l u s i o n
B e c a u s e W i n s t e a d ' s t e n d e r
o f t h e moneys was
i n a c c o r d a n c e
w i t h t h e
c i r c u i t
c o u r t ' s j u d g m e n t and W i n s t e a d d i d n o t
p l a c e
any
c o n d i t i o n on t h e moneys t h a t was
n o t f o u n d i n t h e
c i r c u i t
c o u r t ' s j u d g m e n t , t h e r e was
no "nonpayment" o f t h e moneys t h a t
w o u l d a l l o w i n t e r e s t t o a c c r u e .
The j u d g m e n t o f t h e C o u r t
o f
C i v i l
A p p e a l s
i s r e v e r s e d ,
and
t h i s
c a u s e
i s remanded
f o r
p r o c e e d i n g s c o n s i s t e n t w i t h
t h i s
o p i n i o n .
REVERSED AND
REMANDED.
Cobb,
C . J . ,
and
L y o n s ,
W o o d a l l ,
S m i t h ,
B o l i n ,
P a r k e r ,
M u r d o c k , and Shaw, J J . , c o n c u r .
17 | December 4, 2009 |
5d84574f-ca2b-4d45-acdc-e67456eea820 | Ex parte Laci Watson et al. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Yolanda Givan, as personal representative of the estate of Dominic Ware v. Laci Watson et al.) | N/A | 1080368 | Alabama | Alabama Supreme Court | REL: 10/30/2009
Notice: T h i s o p i n i o n i s
s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n
t h e advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e
r e q u e s t e d t o n o t i f y t h e
Reporter of Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741
((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l
o r
o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may
be
made b e f o r e
t h e o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1080368
Ex p a r t e L a c i Watson e t a l .
PETITION FOR WRIT OF MANDAMUS
( I n r e :
Yolanda Givan, as p e r s o n a l r e p r e s e n t a t i v e o f
the
e s t a t e o f Dominic Ware
v.
L a c i Watson e t a l . )
( J e f f e r s o n C i r c u i t Court, CV-07-900878)
SMITH,
J u s t i c e .
L a c i
W a t s o n ,
E r i c a
J a c k s o n ,
T o n i
D o l l a r ,
a n d T r a c e y
E u b a n k s
( h e r e i n a f t e r
r e f e r r e d
t o
c o l l e c t i v e l y
as " t h e
1
1080368
d e f e n d a n t s " )
p e t i t i o n
t h i s
C o u r t f o r a
w r i t
o f mandamus
d i r e c t i n g t h e J e f f e r s o n
C i r c u i t
C o u r t t o e n t e r a summary
j u d g m e n t i n t h e i r
f a v o r on t h e b a s i s o f S t a t e - a g e n t i m m u n i t y
i n a w r o n g f u l - d e a t h a c t i o n b r o u g h t
a g a i n s t them b y Y o l a n d a
G i v a n , as p e r s o n a l
r e p r e s e n t a t i v e o f t h e e s t a t e o f D o m i n i c
Ware. We deny t h e p e t i t i o n as t o W a t s o n a n d J a c k s o n a n d g r a n t
t h e p e t i t i o n as t o D o l l a r a n d E u b a n k s .
F a c t s a n d P r o c e d u r a l
H i s t o r y
On
J u l y
27, 2005,
D o m i n i c
was
t a k e n
t o
C h i l d r e n ' s
H o s p i t a l
i n B i r m i n g h a m
a f t e r
h i s m o t h e r ,
S a n d r a
Ware,
d i s c o v e r e d
b r u i s i n g a n d s w e l l i n g a r o u n d D o m i n i c ' s e y e s a n d
h e a d .
S a n d r a a n d h e r b o y f r i e n d , J o r g e C a r t e r , who were t h e
o n l y ones a t
home w i t h D o m i n i c i m m e d i a t e l y b e f o r e he was t a k e n
t o t h e h o s p i t a l ,
r e p o r t e d
t h a t D o m i n i c may have
c a u g h t h i s
h e a d u n d e r t h e
h e a d b o a r d o f S a n d r a ' s b e d .
A s o c i a l w o r k e r a t
C h i l d r e n ' s H o s p i t a l made a r e p o r t o f s u s p e c t e d c h i l d a b u s e t o
t h e
J e f f e r s o n C o u n t y D e p a r t m e n t o f Human R e s o u r c e s
("DHR").
DHR
a s s i g n e d
W a t s o n ,
a
c h i l d - a b u s e - a n d - n e g l e c t
("CA/N")
i n v e s t i g a t o r , t o i n v e s t i g a t e t h e a l l e g a t i o n o f c h i l d
a b u s e .
Upon
a r r i v i n g a t t h e h o s p i t a l ,
W a t s o n saw t h a t one o f
D o m i n i c ' s e y e s was s w o l l e n ,
t h a t he h a d a b r u i s e u n d e r t h e
2
1080368
o t h e r
e y e ,
and
t h a t
he
had
b r u i s e s
on
b o t h
o f
h i s
e a r s .
W a t s o n
d i d
n o t
f i n d
p l a u s i b l e S a n d r a ' s
e x p l a n a t i o n
o f
t h e
c a u s e o f D o m i n i c ' s
i n j u r i e s .
Watson c o n c l u d e d
t h a t
D o m i n i c
had b e e n a b u s e d , b u t she was
u n a b l e t o make a d e t e r m i n a t i o n
as
t o t h e
i d e n t i t y o f t h e
a b u s e r .
On
J u l y 28, 2005, W a t s o n c o n d u c t e d a " P l a c e m e n t
D e c i s i o n
I n d i v i d u a l i z e d
S e r v i c e
P l a n "
("PDISP") m e e t i n g ; C a r t e r
and
S a n d r a a t t e n d e d
t h e PDISP m e e t i n g .
U n d e r t h a t p l a n ,
C a r t e r
and
S a n d r a were
l i m i t e d
t o s u p e r v i s e d
c o n t a c t
w i t h
n o t
o n l y
D o m i n i c , b u t
a l s o S a n d r a ' s t h r e e
o t h e r c h i l d r e n .
On J u l y 29, 2005, a s h e l t e r - c a r e h e a r i n g was
c o n d u c t e d i n
t h e J e f f e r s o n C o u n t y J u v e n i l e C o u r t ; t h a t c o u r t f o u n d D o m i n i c
t o be
d e p e n d e n t ,
o r d e r e d
c u s t o d y
o f
h i m
be
p l a c e d
w i t h
h i s
m a t e r n a l g r e a t - g r a n d m o t h e r , M a t t i e Ware, and p e r m i t t e d
S a n d r a
o n l y
s u p e r v i s e d
v i s i t a t i o n .
C u s t o d y
o f
t h e
o t h e r
t h r e e
c h i l d r e n , h o w e v e r , r e m a i n e d w i t h S a n d r a .
A d d i t i o n a l l y , t h e
j u v e n i l e c o u r t o r d e r e d
S a n d r a t o s u b m i t t o a d r u g s c r e e n
t h a t
day
a t
t h e
A d o l e s c e n t
S u b s t a n c e A b u s e P r o g r a m
( " A S A P " ) ; t o
s u b m i t
t o
a p s y c h o l o g i c a l e v a l u a t i o n
and
a
s u b s t a n c e - a b u s e
a s s e s s m e n t ;
and
t o
c o m p l y
w i t h
t h e
r e c o m m e n d a t i o n s
f o r
t r e a t m e n t
as
d i r e c t e d by
t h e
t h e r a p i s t .
DHR
was
o r d e r e d
t o
3
1080368
" c l o s e l y s u p e r v i s e " t h e p a r t i e s ' c o m p l i a n c e w i t h t h e t e r m s o f
t h e
j u v e n i l e c o u r t ' s
o r d e r
and
t o p r e p a r e
a r e p o r t
f o r
t h e
c o u r t a d d r e s s i n g D o m i n i c ' s w e l f a r e and t h e p a r t i e s ' c o m p l i a n c e
w i t h
t h e
t e r m s
o f
t h e
c o u r t ' s
o r d e r
and
t h e
i n d i v i d u a l i z e d
s e r v i c e p l a n s
( " I S P s " ) .
An
a d d i t i o n a l h e a r i n g was
s c h e d u l e d
f o r
F e b r u a r y 7,
2006.
I n a c c o r d a n c e w i t h t h e c o u r t ' s o r d e r , S a n d r a u n d e r w e n t a
d r u g t e s t a t t h e J e f f e r s o n C o u n t y c o u r t h o u s e on J u l y 29, 2005.
The
t e s t
was
a d m i n i s t e r e d
by
t h e
U n i v e r s i t y o f A l a b a m a
a t
B i r m i n g h a m ' s
T r e a t m e n t
A l t e r n a t i v e
f o r
S a f e r
C o m m u n i t i e s
("TASC") p r o g r a m .
A c c o r d i n g
t o M e r e d i t h
C u r r i e , a p r o g r a m
manager f o r t h e TASC, W a t s o n a c c o m p a n i e d S a n d r a t o t h e
d r u g
t e s t .
The
d r u g - t e s t
r e s u l t s , w h i c h were c o m p l e t e d a few
d a y s
l a t e r ,
r e v e a l e d
t h a t S a n d r a had
u s e d c o c a i n e .
However,
t h e
d e f e n d a n t s a s s e r t t h a t t h e r e s u l t s o f S a n d r a ' s d r u g t e s t were
n o t
f o r w a r d e d
t o
any
o f
them,
and
t h e
d e f e n d a n t s
d i d
n o t
r e q u e s t
t h e
r e s u l t s .
1
1 A c c o r d i n g
t o h e r
a f f i d a v i t , A n i t a T u r n e r , t h e
s u b s t a n c e -
a b u s e - c o u n s e l o r
l i a i s o n
f o r
t h e
J e f f e r s o n - B l o u n t - S t .
C l a i r
M e n t a l
H e a l t h / M e n t a l
R e t a r d a t i o n
A u t h o r i t y , p i c k e d
up
d r u g -
t e s t
r e s u l t s
f o r J e f f e r s o n C o u n t y
as
a p a r t
o f
h e r
d u t i e s .
T u r n e r
t e s t i f i e d
she
w o u l d p i c k up
t h e
r e s u l t s
and
f o r w a r d
o n l y
p o s i t i v e
r e s u l t s
t o
t h e
w o r k e r
o r
s u p e r v i s o r
who
r e q u e s t e d
d r u g t e s t i n g .
N o t a b l y ,
t h e d o c u m e n t a t i o n f r o m
t h e
d r u g - t e s t
r e s u l t s r e c e i v e d on J u l y 29, 2005, show r e s u l t s
f o r
4
1080368
A c c o r d i n g
t o W a t s o n ,
t h e r e
were
no
S t a t e
p o l i c i e s
d i r e c t i n g how
d r u g - t e s t
r e s u l t s were t o be
r e c e i v e d b y a
c o u n t y D e p a r t m e n t o f Human R e s o u r c e s
o f f i c e .
The d e f e n d a n t s
a s s e r t t h a t t h e r e was an " u n w r i t t e n
p o l i c y " a t DHR t h a t
o n l y
p o s i t i v e
r e s u l t s
were
f o r w a r d e d
t o DHR
i n v e s t i g a t o r s .
2
However, t h a t e v i d e n c e i s c o n t r a d i c t e d b y e v i d e n c e i n d i c a t i n g
t h a t DHR, i n c l u d i n g Watson a n d J a c k s o n , w o u l d have
r e c e i v e d
a l l
d r u g - t e s t
r e s u l t s , n o t j u s t t h e p o s i t i v e o n e s .
W a t s o n
t e s t i f i e d
t h a t she was a u t h o r i z e d t o o b t a i n t h e
a " S h a r o n Ware" b u t no r e s u l t s f o r
a " S a n d r a Ware."
T u r n e r
a s s e r t e d
t h a t she was n o t p r o v i d e d any d r u g - t e s t
r e s u l t s
f o r
S a n d r a
Ware on
J u l y
2 9,
2005.
C u r r i e
c o n f i r m e d
i n h e r
d e p o s i t i o n t e s t i m o n y
t h a t t h e d o c u m e n t a t i o n f o r t h e d r u g - t e s t
r e s u l t s
r e c e i v e d on J u l y 29, 2005,
i d e n t i f i e d
" S h a r o n Ware"
b u t n o t " S a n d r a Ware."
C u r r i e f u r t h e r t e s t i f i e d t h a t she was
n o t
aware o f any w r i t t e n p o l i c y a t DHR r e g a r d i n g
d r u g - t e s t
r e s u l t s a n d t h a t she d i d n o t know any o f t h e p r o t o c o l s DHR h a d
w i t h T u r n e r as t h e l i a i s o n .
C u r r i e
t e s t i f i e d , h o w e v e r ,
t h a t
t h e p o l i c y o f TASC was t o f o r w a r d
a l l r e s u l t s , b o t h p o s i t i v e
and
n e g a t i v e , t o DHR.
2 I n c l u d e d
i n t h e m a t e r i a l s
s u b m i t t e d
t o t h i s
C o u r t a r e
a f f i d a v i t s f r o m DHR e m p l o y e e s C l a r e n c e Rowe, E u b a n k s , T u r n e r ,
D o l l a r , W a t s o n , a n d J a c k s o n
t h a t
i n c l u d e t h e f o l l o w i n g
( o r
s u b s t a n t i a l l y
s i m i l a r ) l a n g u a g e :
"The
p r a c t i c e i n
t h e
West R e g i o n o f J e f f e r s o n C o u n t y
D e p a r t m e n t o f Human R e s o u r c e s was t h a t i f
you
d i d
n o t
r e c e i v e t h e r e s u l t s , t h e r e s u l t s were p r e s u m e d
t o be n e g a t i v e .
T h e r e i s no A l a b a m a D e p a r t m e n t o f
Human R e s o u r c e s p o l i c y t h a t
d i r e c t s how d r u g t e s t s
r e s u l t s a r e t o be r e c e i v e d b y a c o u n t y
o f f i c e
l i k e
J e f f e r s o n C o u n t y D e p a r t m e n t o f Human R e s o u r c e s . "
5
1080368
d r u g - t e s t
r e s u l t s b u t t h a t i t was n o t h e r r e s p o n s i b i l i t y t o do
s o .
Watson
s t a t e d
t h a t
h e r
r e s p o n s i b i l i t i e s
i n v o l v e d
c o m p l e t i n g t h e CA/N i n v e s t i g a t i o n and t u r n i n g o v e r t h e f i l e t o
h e r s u p e r v i s o r , E u b a n k s .
A c c o r d i n g t o W a t s o n , E u b a n k s i n t u r n
w o u l d f o r w a r d t h e f i l e t o D o l l a r , who s u p e r v i s e d
J a c k s o n , t h e
" o n g o i n g s e r v i c e w o r k e r . "
3
A f t e r t h e h e a r i n g on F e b r u a r y 7, 2006, t h e j u v e n i l e c o u r t
r e t u r n e d
D o m i n i c t o h i s m o t h e r .
The j u v e n i l e c o u r t was n o t
a p p r i s e d
o f t h e f a c t
t h a t , among
o t h e r
t h i n g s ,
S a n d r a h a d
3 W a t s o n
t e s t i f i e d :
"Q. [ B y G i v a n ' s a t t o r n e y : ]
And what d o e s
t h a t
mean when y o u p r e p a r e t h e c a s e t o be t r a n s f e r r e d t o
t h e o n g o i n g w o r k e r ?
"A.
I t j u s t means t h a t I made
s u r e
t h a t t h e
o r d e r was i n t h e f i l e ,
t h e o t h e r
p a p e r w o r k was i n
t h e r e ,
c o p i e s o f t h e ... [ t ] r a n s f e r n a r r a t i v e , t h e
c o u r t
o r d e r ,
... t h e p i c k - u p
o r d e r s ,
... any home
e v a l u a t i o n s
t h a t were done and ... t h e PDISP and ...
i f t h e c h i l d r e n were p l a c e d
i n p r o t e c t i v e
c u s t o d y
t h e r e ' s
a l s o some o t h e r f o r m s and I d o n ' t r e c a l l t h e
names o f t h e f o r m s .
f i
"Q.
And t h e n
t h i s i s p r o v i d e d
t o t h e o n g o i n g
w o r k e r ?
"A.
I p r o v i d e
i t
t o my s u p e r v i s o r
[ E u b a n k s ] .
... [ T h e n ] [ s ] h e s e n d s i t
t o t h e o n g o i n g
s u p e r v i s o r
[ D o l l a r ] . "
6
1080368
t e s t e d p o s i t i v e f o r c o c a i n e
on
J u l y 29,
2005.
On M a r c h 11, 2006, D o m i n i c , who
was
t h e n 16 months o l d ,
was
a g a i n
a d m i t t e d
t o C h i l d r e n ' s
H o s p i t a l i n B i r m i n g h a m
w i t h
i n j u r i e s
t o h i s h e a d , b a c k , and
e x t r e m i t i e s , i n c l u d i n g b r a i n
i n j u r y
c a u s e d
by
b l u n t - f o r c e
t r a u m a .
D o m i n i c
d i e d
t h e
f o l l o w i n g d a y .
H i s
i n j u r i e s had b e e n
i n f l i c t e d by
C a r t e r .
4
D o m i n i c ' s
m a t e r n a l
g r a n d m o t h e r ,
Y o l a n d a
G i v a n ,
as
p e r s o n a l r e p r e s e n t a t i v e o f D o m i n i c ' s e s t a t e , f i l e d a
c o m p l a i n t
a l l e g i n g a w r o n g f u l - d e a t h c l a i m a g a i n s t t h e f o l l o w i n g p e r s o n s
i n t h e i r i n d i v i d u a l c a p a c i t i e s : W a t s o n ; W a t s o n ' s
s u p e r v i s o r ,
E u b a n k s ; J a c k s o n ,
t h e
o n g o i n g
s e r v i c e
w o r k e r
a t
DHR;
and
J a c k s o n ' s s u p e r v i s o r , D o l l a r .
5
G i v a n ' s c o m p l a i n t
s p e c i f i c a l l y
a l l e g e d
t h a t
" [ t h e
d e f e n d a n t s ]
a l l o w e d
D o m i n i c
Ware
t o
be
r e t u r n e d
t o t h e c u s t o d y o f h i s m o t h e r , S a n d r a Ware,
i n F e b r u a r y 2006 w i t h o u t
f i r s t o b t a i n i n g t h e r e s u l t s
o f
S a n d r a Ware's
c o u r t
o r d e r e d
d r u g
t e s t ,
and
by
d o i n g
s o ,
a f f i r m a t i v e l y p l a c e d
D o m i n i c Ware
i n
a
p o s i t i o n o f d a n g e r t h a t he w o u l d n o t h a v e
o t h e r w i s e
4 C a r t e r
u l t i m a t e l y was
c o n v i c t e d
o f
c a p i t a l m u r d e r
f o r
k i l l i n g D o m i n i c ; he
was
s e n t e n c e d
t o
l i f e
i n p r i s o n
w i t h o u t
t h e
p o s s i b i l i t y
o f p a r o l e .
See
§ 1 3 A - 5 - 4 0 ( a ) ( 1 5 ) , A l a . Code
1 975.
5 G i v a n ' s
c o m p l a i n t
a l s o
named
as
d e f e n d a n t s
A n g e l a
T a n d e e r ,
t h e
C h i l d W e l f a r e
D i r e c t o r
f o r
DHR,
and
D o l l a r ' s
s u p e r v i s o r ,
C l a r e n c e
Rowe; h o w e v e r , t h e
c l a i m s
a g a i n s t
them
were u l t i m a t e l y
d i s m i s s e d .
7
1080368
f a c e d . "
I n
a d d i t i o n
t o t h e
s p e c i f i c
a l l e g a t i o n
r e g a r d i n g t h e
d r u g - t e s t
r e s u l t s ,
G i v a n ' s
c o m p l a i n t a l s o
a l l e g e d
g e n e r a l l y
t h a t
t h e
d e f e n d a n t s
" c o m m i t t e d
a c t s
o r
o m i s s i o n s
w h i c h
v i o l a t e d
s p e c i f i c
l a w s ,
r u l e s , o r r e g u l a t i o n s o f t h i s
S t a t e
e n a c t e d
o r p r o m u l g a t e d
f o r t h e p u r p o s e
o f
r e g u l a t i n g t h e
a c t i v i t i e s
o f DHR,
p r o x i m a t e l y c a u s i n g [ D o m i n i c ' s ] d e a t h . "
F i n a l l y ,
t h e c o m p l a i n t
a l l e g e d
t h a t
t h e d e f e n d a n t s
" a c t e d
w i l f u l l y ,
m a l i c i o u s l y ,
f r a u d u l e n t l y ,
i n b a d
f a i t h ,
b e y o n d
[ t h e i r ] a u t h o r i t y o r u n d e r a m i s t a k e n
i n t e r p r e t a t i o n o f t h e
l a w , p r o x i m a t e l y c a u s i n g [ D o m i n i c ' s ] d e a t h . "
A f t e r d i s c o v e r y was c o n d u c t e d , t h e d e f e n d a n t s moved f o r
a summary j u d g m e n t on t h e b a s i s
t h a t ,
t h e y a s s e r t e d ,
G i v a n
c o u l d n o t " p r o v i d e any e v i d e n c e t h a t t h e d e f e n d a n t s
f a i l e d t o
f o l l o w
a p p l i c a b l e
l a w o r d e p a r t m e n t a l
r u l e s ,
p r a c t i c e s o r
p r o c e d u r e s
o r t h a t
t h e y
a c t e d
o u t s i d e
t h e i r
a u t h o r i t y
as
e m p l o y e e s
o f t h e A l a b a m a
D e p a r t m e n t
o f Human
R e s o u r c e s . "
F u r t h e r m o r e , t h e summary-judgment m o t i o n
a s s e r t e d t h a t
G i v a n
c o u l d n o t p r o v i d e any e v i d e n c e t h a t t h e d e f e n d a n t s h a d " a c t e d
w i l f u l l y ,
m a l i c i o u s l y ,
f r a u d u l e n t l y ,
i n b a d
f a i t h ,
b e y o n d
t h e i r
a u t h o r i t y , o r u n d e r a m i s t a k e n
i n t e r p r e t a t i o n o f l a w . "
8
1080368
F i n a l l y , t h e d e f e n d a n t s ' summary-judgment m o t i o n a s s e r t e d t h a t
" [ t ] h e most i m p o r t a n t p o i n t o f l a w i n t h i s
c a s e i s
t h a t [ G i v a n ] has n o t s t a t e d a c a u s e o f a c t i o n i n any
o f
t h e c o m p l a i n t s .
The S t a t e h a d no l e g a l d u t y t o
p r o t e c t t h e c h i l d a t t h e t i m e o f h i s d e a t h
b e c a u s e
t h e
c h i l d
was
n o t
i n t h e
S t a t e ' s
c u s t o d y ,
b u t
r a t h e r , was i n t h e c u s t o d y o f h i s m o t h e r . "
G i v a n
f i l e d
b r i e f s
and
e v i d e n t i a r y
m a t e r i a l s
i n
o p p o s i t i o n t o t h e d e f e n d a n t s '
summary-judgment
m o t i o n .
I n
a d d i t i o n t o h e r s p e c i f i c a l l e g a t i o n t h a t t h e d e f e n d a n t s
f a i l e d
t o
r e t r i e v e and t o r e p o r t t h e r e s u l t s o f S a n d r a ' s d r u g
t e s t ,
G i v a n ' s m a t e r i a l s and e v i d e n c e o p p o s i n g t h e summary-judgment
m o t i o n
a l l e g e d a number o f s p e c i f i c a c t s o r o m i s s i o n s b y t h e
d e f e n d a n t s
t h a t ,
G i v a n
a r g u e d ,
d e f e a t e d
t h e
d e f e n d a n t s '
a s s e r t i o n o f S t a t e - a g e n t
i m m u n i t y .
I n
r e s p o n s e , t h e d e f e n d a n t s
f i l e d a m o t i o n t o s t r i k e what
t h e y
s a i d were "new
a l l e g a t i o n s "
i n t h e m a t e r i a l s f i l e d i n
o p p o s i t i o n t o t h e summary-judgment m o t i o n , i . e . , t h e s p e c i f i c
a l l e g a t i o n s
o t h e r
t h a n t h e a l l e g a t i o n s
t h a t t h e
d e f e n d a n t s
f a i l e d t o r e t r i e v e and t o r e p o r t t h e d r u g - t e s t r e s u l t s .
The
d e f e n d a n t s ' m o t i o n t o s t r i k e a r g u e d t h a t t h e "new
a l l e g a t i o n s "
were an u n t i m e l y a t t e m p t t o amend G i v a n ' s
c o m p l a i n t .
A f t e r a h e a r i n g , t h e t r i a l
c o u r t , w i t h o u t e x p l a n a t i o n ,
d e n i e d
t h e d e f e n d a n t s '
summary-judgment
m o t i o n
a n d
d e n i e d
9
1080368
t h e i r m o t i o n t o s t r i k e .
On December 11, 2008, t h e
t r i a l
c o u r t
c e r t i f i e d f o r p e r m i s s i v e a p p e a l u n d e r R u l e 5, A l a . R. App.
P.,
t h e
f o l l o w i n g
c o n t r o l l i n g
q u e s t i o n
o f
l a w :
"Whether
t h e
d e f e n d a n t s a r e e n t i t l e d t o summary j u d g m e n t b a s e d upon s t a t e -
a g e n t
i m m u n i t y
as
t o
t h e
f a c t s
i n
t h e
c a s e . "
T h i s
C o u r t
o r d e r e d t h a t t h e d e f e n d a n t s '
p e t i t i o n f o r p e r m i s s i o n t o
a p p e a l
be
t r e a t e d as
a p e t i t i o n
f o r a w r i t o f mandamus, l i m i t e d
t o
t h e S t a t e - a g e n t - i m m u n i t y i s s u e s .
S t a n d a r d o f R e v i e w
" T h i s C o u r t has
s t a t e d :
" ' " W h i l e t h e g e n e r a l
r u l e i s t h a t
t h e
d e n i a l o f a m o t i o n f o r summary j u d g m e n t i s
n o t
r e v i e w a b l e ,
t h e
e x c e p t i o n
i s t h a t
t h e
d e n i a l
o f a m o t i o n g r o u n d e d on
a c l a i m
o f
i m m u n i t y i s r e v i e w a b l e by p e t i t i o n f o r w r i t
o f mandamus.
Ex p a r t e
P u r v i s , 689
So.
2d
794
( A l a . 1996)
....
"'"Summary
j u d g m e n t
i s
a p p r o p r i a t e
o n l y when ' t h e r e i s no g e n u i n e i s s u e as
t o
any m a t e r i a l f a c t and
...
t h e m o v i n g
p a r t y
i s
e n t i t l e d
t o
a j u d g m e n t
as
a m a t t e r
o f
l a w . '
R u l e
5 6 ( c ) ( 3 ) ,
A l a .
R.
C i v .
P.,
Young v.
La Q u i n t a
I n n s ,
I n c . ,
682
So.
2d
402
( A l a . 1 9 9 6 ) .
A
c o u r t
c o n s i d e r i n g
a
m o t i o n f o r summary j u d g m e n t
w i l l
v i e w
t h e
r e c o r d
i n t h e
l i g h t most f a v o r a b l e
t o
t h e
n o n m o v i n g
p a r t y ,
H u r s t
v.
A l a b a m a
Power
Co.,
675
So.
2d
397
( A l a . 1 9 9 6 ) , Fuqua
v.
I n g e r s o l l - R a n d
Co.,
591
So.
2d
486
( A l a .
1 9 9 1 ) ; w i l l
a c c o r d
t h e n o n m o v i n g p a r t y a l l
r e a s o n a b l e
f a v o r a b l e
i n f e r e n c e s
f r o m
t h e
10
1080368
e v i d e n c e ,
F u q u a , s u p r a , A l d r i d g e v. V a l l e y
S t e e l C o n s t r . , I n c . ,
603 So. 2d 981
( A l a .
1 9 9 2 ) ; and
w i l l
r e s o l v e
a l l r e a s o n a b l e
d o u b t s
a g a i n s t
t h e m o v i n g
p a r t y ,
H u r s t ,
s u p r a ,
Ex p a r t e
B r i s l i n ,
719 So. 2d 185
( A l a .
1 9 9 8 ) .
"'"An
a p p e l l a t e
c o u r t
r e v i e w i n g
a
r u l i n g
on a m o t i o n
f o r summary
j u d g m e n t
w i l l , de n o v o , a p p l y
t h e s e same
s t a n d a r d s
a p p l i c a b l e
i n t h e
t r i a l
c o u r t .
F u q u a ,
s u p r a ,
B r i s l i n ,
s u p r a .
L i k e w i s e ,
t h e
a p p e l l a t e
c o u r t
w i l l
c o n s i d e r
o n l y
t h a t
f a c t u a l m a t e r i a l a v a i l a b l e o f r e c o r d t o
t h e
t r i a l
c o u r t
f o r i t s c o n s i d e r a t i o n
i n
d e c i d i n g
t h e m o t i o n .
D y n a s t y
C o r p .
v .
A l p h a
R e s i n s
C o r p . , 577 So. 2d 1278
( A l a .
1 9 9 1 ) ,
B o l a n d
v . F o r t R u c k e r N a t ' l B a n k,
599 So. 2d 595 ( A l a . 1992
), Rowe v .
I s b e l l ,
599
So.2d 35 ( A l a . 1 9 9 2 ) . " '
"Ex
p a r t e
T u r n e r ,
840 So. 2d 132, 135
( A l a . 2002)
( q u o t i n g Ex p a r t e R i z k , 791 So. 2d 911, 912-13
( A l a .
2 0 0 0 ) ) .
A
w r i t
o f mandamus
i s an
e x t r a o r d i n a r y
remedy
a v a i l a b l e
o n l y
when
t h e
p e t i t i o n e r
c a n
d e m o n s t r a t e : ' " ( 1 ) a c l e a r
l e g a l
r i g h t t o t h e o r d e r
s o u g h t ; (2) an i m p e r a t i v e
d u t y upon t h e r e s p o n d e n t
t o p e r f o r m ,
a c c o m p a n i e d by a r e f u s a l t o do s o ; (3)
t h e
l a c k o f a n o t h e r
a d e q u a t e r e m e d y ; and (4) t h e
p r o p e r l y
i n v o k e d
j u r i s d i c t i o n o f t h e c o u r t . " '
Ex
p a r t e N a l l , 879 So. 2d 5 4 1 , 543 ( A l a . 2003)
( q u o t i n g
Ex
p a r t e
BOC
G r o u p , I n c . , 823 So. 2d 1270
, 1272
( A l a .
2 0 0 1 ) ) . "
Ex p a r t e Y a n c e y , 8 So. 3d 299, 303-04
( A l a . 2 0 0 8 ) .
D i s c u s s i o n
" I n Ex
p a r t e
Cranman,
7
92 So. 2d 392 ( A l a .
2 0 0 0 ) , a p l u r a l i t y o f t h i s
C o u r t
r e s t a t e d t h e t e s t
f o r d e t e r m i n i n g when a S t a t e e m p l o y e e i s e n t i t l e d t o
S t a t e - a g e n t
i m m u n i t y :
11
1080368
"'A S t a t e
a g e n t
s h a l l be immune
f r o m
c i v i l
l i a b i l i t y
i n h i s o r h e r
p e r s o n a l
c a p a c i t y when t h e c o n d u c t made t h e b a s i s o f
t h e
c l a i m
a g a i n s t t h e a g e n t i s b a s e d upon
t h e
a g e n t ' s
" ' ( 1 )
f o r m u l a t i n g
p l a n s ,
p o l i c i e s , o r
d e s i g n s ; o r
" ' ( 2 )
e x e r c i s i n g h i s o r h e r
j u d g m e n t
i n t h e a d m i n i s t r a t i o n o f a d e p a r t m e n t o r
a g e n c y o f g o v e r n m e n t ,
i n c l u d i n g , b u t n o t
l i m i t e d t o , e x a m p l e s
s u c h a s :
" ' ( a )
m a k i n g
a d m i n i s t r a t i v e
a d j u d i c a t i o n s ;
" ' ( b ) a l l o c a t i n g
r e s o u r c e s ;
" ' ( c ) n e g o t i a t i n g
c o n t r a c t s ;
" ' ( d )
h i r i n g ,
f i r i n g ,
t r a n s f e r r i n g ,
a s s i g n i n g ,
o r
s u p e r v i s i n g p e r s o n n e l ; o r
" ' ( 3 )
d i s c h a r g i n g
d u t i e s i m p o s e d on a
d e p a r t m e n t o r a g e n c y b y s t a t u t e ,
r u l e , o r
r e g u l a t i o n ,
i n s o f a r as t h e s t a t u t e ,
r u l e ,
o r
r e g u l a t i o n
p r e s c r i b e s
t h e manner f o r
p e r f o r m i n g t h e d u t i e s and t h e S t a t e
a g e n t
p e r f o r m s t h e d u t i e s i n t h a t m a n n e r ; o r
" ' ( 4 )
e x e r c i s i n g
j u d g m e n t
i n t h e
e n f o r c e m e n t
o f t h e c r i m i n a l
l a w s o f t h e
S t a t e ,
i n c l u d i n g ,
b u t n o t
l i m i t e d
t o ,
l a w - e n f o r c e m e n t
o f f i c e r s '
a r r e s t i n g
o r
a t t e m p t i n g t o a r r e s t p e r s o n s ; o r
" ' ( 5 )
e x e r c i s i n g
j u d g m e n t
i n t h e
d i s c h a r g e
o f d u t i e s
i m p o s e d
b y
s t a t u t e ,
r u l e , o r r e g u l a t i o n i n r e l e a s i n g p r i s o n e r s ,
c o u n s e l i n g o r r e l e a s i n g p e r s o n s o f u n s o u n d
12
1080368
m i n d , o r e d u c a t i n g s t u d e n t s .
" ' N o t w i t h s t a n d i n g
a n y t h i n g
t o
t h e
c o n t r a r y i n t h e f o r e g o i n g s t a t e m e n t o f t h e
r u l e ,
a S t a t e
a g e n t
s h a l l
n o t be immune
f r o m c i v i l
l i a b i l i t y i n
h i s
o r h e r p e r s o n a l
c a p a c i t y
" ' ( 1 ) when t h e C o n s t i t u t i o n o r l a w s o f
t h e U n i t e d S t a t e s , o r t h e C o n s t i t u t i o n o f
t h i s S t a t e , o r l a w s , r u l e s , o r r e g u l a t i o n s
o f
t h i s
S t a t e
e n a c t e d o r p r o m u l g a t e d f o r
t h e p u r p o s e o f r e g u l a t i n g t h e a c t i v i t i e s o f
a g o v e r n m e n t a l a g e n c y r e q u i r e o t h e r w i s e ; o r
" ' ( 2 )
when
t h e
S t a t e
a g e n t
a c t s
w i l l f u l l y ,
m a l i c i o u s l y ,
f r a u d u l e n t l y , i n
b a d
f a i t h , b e y o n d h i s
o r h e r a u t h o r i t y , o r
u n d e r
a
m i s t a k e n
i n t e r p r e t a t i o n
o f t h e
l a w . '
"792
So. 2d a t 405.
A l t h o u g h
Cranman
was
a
p l u r a l i t y
d e c i s i o n ,
t h e r e s t a t e m e n t o f l a w as i t
p e r t a i n s
t o
S t a t e - a g e n t
i m m u n i t y
s e t
f o r t h
i n
Cranman was s u b s e q u e n t l y a d o p t e d by t h i s C o u r t i n
Ex
p a r t e R i z k , 791 So. 2d 911 ( A l a . 2 0 0 0 ) , and Ex p a r t e
B u t t s , 775 So. 2d 173 ( A l a . 2 0 0 0 ) .
" A d d i t i o n a l l y ,
t h i s C o u r t h a s s t a t e d :
" ' T h i s
C o u r t
h a s
e s t a b l i s h e d
a
" b u r d e n - s h i f t i n g "
p r o c e s s
when
a
p a r t y
r a i s e s t h e d e f e n s e o f S t a t e - a g e n t i m m u n i t y .
G i a m b r o n e v. D o u g l a s , 874 So. 2d 1046, 1052
( A l a . 2 0 0 3 ) .
I n o r d e r t o c l a i m S t a t e - a g e n t
i m m u n i t y , a S t a t e a g e n t b e a r s t h e b u r d e n o f
d e m o n s t r a t i n g
t h a t t h e p l a i n t i f f ' s
c l a i m s
a r i s e
f r o m a f u n c t i o n
t h a t w o u l d
e n t i t l e
t h e
S t a t e
a g e n t t o i m m u n i t y .
G i a m b r o n e ,
874 So. 2d a t 1052; Ex p a r t e Wood, 852 So.
2d 705, 709 ( A l a .
2002 ) .
I f t h e
S t a t e
a g e n t makes s u c h a s h o w i n g , t h e b u r d e n t h e n
13
1080368
s h i f t s
t o t h e
p l a i n t i f f
t o show t h a t
t h e
S t a t e
a g e n t
a c t e d
w i l l f u l l y ,
m a l i c i o u s l y ,
f r a u d u l e n t l y ,
i n b a d
f a i t h ,
o r b e y o n d
h i s
o r h e r a u t h o r i t y .
G i a m b r o n e ,
874 So. 2d a t
10 52 ; Wood, 852
So.
2d
a t 709;
Ex
p a r t e
D a v i s , 721 So. 2d 685, 689
( A l a . 1 9 9 8 ) .
"A
S t a t e
a g e n t
a c t s b e y o n d
a u t h o r i t y and i s
t h e r e f o r e
n o t
immune
when
he
o r
she
' f a i l [ s ] t o d i s c h a r g e
d u t i e s p u r s u a n t
t o
d e t a i l e d
r u l e s
o r
r e g u l a t i o n s ,
s u c h
as
t h o s e s t a t e d on a c h e c k l i s t . ' "
G i a m b r o n e ,
874 So. 2d a t 1052
( q u o t i n g Ex p a r t e
B u t t s ,
775 So. 2d 173, 178
( A l a . 2 0 0 0 ) ) . '
"Ex
p a r t e
E s t a t e
o f R e y n o l d s ,
946
So.
2d 450 , 452
( A l a .
2 0 0 6 ) . "
Ex p a r t e Y a n c e y ,
8 So. 3d a t 3 0 4 - 0 5 .
G i v a n
does
n o t
d i s p u t e
t h a t
t h e
d e f e n d a n t s
a r e
S t a t e
a g e n t s o r t h a t t h e d e f e n d a n t s made a
s u f f i c i e n t
s h o w i n g
i n
t h e i r summary-judgment m o t i o n t o
s h i f t
t h e b u r d e n
t o h e r t o
d e m o n s t r a t e
t h a t
t h e d e f e n d a n t s a r e n o t
e n t i t l e d
t o
S t a t e -
a g e n t i m m u n i t y .
She c o n t e n d s , h o w e v e r , t h a t she o f f e r e d , i n
o p p o s i t i o n t o t h e d e f e n d a n t s ' summary-judgment m o t i o n
g r o u n d e d
on S t a t e - a g e n t i m m u n i t y , s u b s t a n t i a l e v i d e n c e i n d i c a t i n g
t h a t
t h e
" d e f e n d a n t s a c t e d b e y o n d
t h e i r
a u t h o r i t y i n
t w e n t y - f i v e
d i f f e r e n t w a y s . "
( G i v a n ' s b r i e f , p. 1.)
She
a s s e r t s :
" [ I ] f t h e d e f e n d a n t s h a d c o m p l i e d w i t h t h e
m a n d a t o r y
S t a t e [ D e p a r t m e n t
o f Human R e s o u r c e s ] r e g u l a t i o n s ,
p o l i c i e s ,
and
c o u r t
o r d e r s
t h a t
g o v e r n e d
t h e i r
c o n d u c t [ , ] ... [ t h e j u v e n i l e c o u r t j u d g e ] w o u l d h a v e
known
(among o t h e r
t h i n g s ) : (1) t h a t
C a r t e r
h a d
a
14
1080368
c r i m i n a l b a c k g r o u n d
t h a t
i n c l u d e d
b u r g l a r y ,
t h e f t ,
d r u g t r a f f i c k i n g , and gang v i o l e n c e ;
(2) t h a t
C a r t e r
l i v e d
i n t h e home w i t h
S a n d r a b e f o r e ,
d u r i n g ,
and
a f t e r
t h e
J u l y 27,
2005, b e a t i n g ;
(3)
t h a t
C a r t e r
was
t h e c h i e f d i s c i p l i n a r i a n o f D o m i n i c and
S a n d r a ' s
o t h e r
c h i l d r e n ;
(4)
t h a t
C a r t e r
c a l l e d
S a n d r a
h i s
w i f e
and
D o m i n i c h i s
s o n ;
and
(5)
t h a t
C a r t e r
and
S a n d r a consumed c o c a i n e
and
o t h e r
d r u g s on
a
d a i l y
b a s i s b e f o r e ,
d u r i n g ,
and
a f t e r
t h e
J u l y 27,
2005,
b e a t i n g .
B e c a u s e [ t h e j u v e n i l e c o u r t j u d g e ] was
n o t
a p p r i s e d
o f
t h e s e
f a c t s ,
[ t h e
j u d g e ]
u n w i t t i n g l y
r e t u r n e d D o m i n i c b a c k t o S a n d r a ' s c a r e [ i n F e b r u a r y
2 0 0 6 ] .
A p p r o x i m a t e l y
one
month
l a t e r ,
S a n d r a
f o r e s e e a b l y
l e f t
D o m i n i c
i n
C a r t e r ' s
c a r e ,
and
C a r t e r
f o r e s e e a b l y b e a t h i m
t o
d e a t h . "
( G i v a n ' s
b r i e f ,
pp.
1-2.)
I .
We
f i r s t
a d d r e s s t h e d e f e n d a n t s ' a r g u m e n t r e g a r d i n g
t h e
t r i a l
c o u r t ' s
d e n i a l
o f
t h e i r
m o t i o n
t o
s t r i k e
what
t h e
d e f e n d a n t s c o n t e n d were new
" c l a i m s " p r e s e n t e d
by G i v a n i n h e r
m a t e r i a l s i n o p p o s i t i o n t o t h e i r summary-judgment m o t i o n .
We
c o n s i d e r
t h e d e f e n d a n t s ' a r g u m e n t r e g a r d i n g
t h e
t r i a l
c o u r t ' s
d e n i a l
o f
t h e i r m o t i o n
t o
s t r i k e b e c a u s e
i t i s
i n t e r t w i n e d
w i t h
t h e i r a r g u m e n t r e g a r d i n g
t h e
d e n i a l o f
t h e i r m o t i o n
f o r
a summary j u d g m e n t g r o u n d e d on
S t a t e - a g e n t
i m m u n i t y .
The
d e f e n d a n t s
i m p l i c i t l y
r e c o g n i z e
t h a t
G i v a n ' s
c o m p l a i n t
i n c l u d e s
a g e n e r a l
a l l e g a t i o n
t h a t
t h e
d e f e n d a n t s
" c o m m i t t e d
a c t s
o r
o m i s s i o n s
w h i c h
v i o l a t e d
s p e c i f i c
l a w s ,
15
1080368
r u l e s , o r r e g u l a t i o n s o f t h i s S t a t e e n a c t e d o r p r o m u l g a t e d f o r
t h e p u r p o s e
o f r e g u l a t i n g t h e
a c t i v i t i e s o f DHR,
p r o x i m a t e l y
c a u s i n g [ D o m i n i c ' s ] d e a t h . "
E v e n s o , t h e d e f e n d a n t s
a r g u e :
" [ G i v a n ' s ] c o m p l a i n t c l e a r l y s e t s o u t a s p e c i f i c
a c t o r o m i s s i o n as t o e a c h D e f e n d a n t r e g a r d i n g t h e
d r u g - t e s t
r e t r i e v a l
i s s u e .
L i k e
f r a u d
c a s e s
o r
m e d i c a l - m a l p r a c t i c e
s u i t s ,
a p l a i n t i f f
s h o u l d h a v e
t o
p l e a d
some
s p e c i f i c i t y
as
t o
e a c h
a c t
o r
o m i s s i o n .
I t i s t h e
a l l e g e d
a c t o r o m i s s i o n i n a
S t a t e - i m m u n i t y
c a s e
t h a t
p u t s
t h e
S t a t e - a g e n t
on
n o t i c e
o f
t h e
a c t u a l
c l a i m .
F o r
i n s t a n c e i n
a
m e d i c a l - m a l p r a c t i c e
c a s e ,
a d e t a i l e d
s p e c i f i c a t i o n
and f a c t u a l d e s c r i p t i o n o f e a c h a c t o r o m i s s i o n must
be
a l l e g e d
by
t h e
p l a i n t i f f
t o
r e n d e r
t h e
h e a l t h
c a r e p r o v i d e r l i a b l e .
L o n g v. Wade, 980 So. 2d
378,
386
( A l a . 2 0 0 7 ) . O t h e r w i s e , as i n t h i s c a s e , on
t h e
eve
o f
t r i a l
a
d e f e n d a n t
a s s e r t i n g
S t a t e - a g e n t
i m m u n i t y w i l l n o t know what a l l
t h e c l a i m s a r e
"
( D e f e n d a n t s '
r e p l y b r i e f , pp.
19-20.)
T h u s ,
t h e
d e f e n d a n t s
a r g u e
(1)
t h a t
a
p l a i n t i f f
must
p l e a d w i t h s p e c i f i c i t y t h e c l a i m s i n h e r c o m p l a i n t i n o r d e r t o
d e f e a t a d e f e n d a n t ' s p o s s i b l e c l a i m o f S t a t e - a g e n t i m m u n i t y o r
(2) t h a t ,
a f t e r a d e f e n d a n t
has moved f o r a summary j u d g m e n t
on t h e b a s i s o f S t a t e - a g e n t i m m u n i t y ,
a p l a i n t i f f must amend
h e r c o m p l a i n t t o add
s p e c i f i c
a l l e g a t i o n s i n a d d i t i o n t o h e r
g e n e r a l
a l l e g a t i o n .
As
n o t e d ,
t h e
d e f e n d a n t s
c i t e ,
i n
s u p p o r t
o f
t h e i r
p o s i t i o n ,
t h e h e i g h t e n e d - p l e a d i n g r e q u i r e m e n t s
t h a t a p p l y t o
16
1080368
a
p l a i n t i f f
a l l e g i n g f r a u d
o r
m e d i c a l
m a l p r a c t i c e .
T h o s e
r e q u i r e m e n t s , h o w e v e r ,
a r e
i m p o s e d e i t h e r by
a r u l e o f
t h i s
C o u r t o r by s t a t u t e .
See R u l e 9 ( b ) , A l a . R.
C i v . P.
( f r a u d ) ;
6
§
6-5-551,
A l a . Code
1975
( m e d i c a l
m a l p r a c t i c e ) .
7
I n
t h e
a b s e n c e
o f
any
s i m i l a r a u t h o r i t y
i n t h e
c o n t e x t
o f
a
c l a i m
6 R u l e
9 ( b ) ,
A l a . R.
C i v .
P.,
s t a t e s :
" I n
a l l a v e r m e n t s
o f f r a u d
o r m i s t a k e , t h e c i r c u m s t a n c e s c o n s t i t u t i n g f r a u d
o r
m i s t a k e
s h a l l be
s t a t e d w i t h
p a r t i c u l a r i t y .
M a l i c e ,
i n t e n t ,
k n o w l e d g e ,
and
o t h e r
c o n d i t i o n
o f m i n d
o f
a p e r s o n
may
be
a v e r r e d
g e n e r a l l y . "
7 S e c t i o n 6-5-551, A l a . Code 1975,
p r o v i d e s :
" I n any
a c t i o n f o r i n j u r y , damages, o r w r o n g f u l
d e a t h
...
a g a i n s t
a h e a l t h
c a r e
p r o v i d e r
f o r b r e a c h
o f
t h e
s t a n d a r d
o f
c a r e
...
t h e
A l a b a m a
M e d i c a l
L i a b i l i t y
A c t
s h a l l
g o v e r n
t h e
p a r a m e t e r s
o f
d i s c o v e r y
and
a l l
a s p e c t s
o f
t h e
a c t i o n .
The
p l a i n t i f f
s h a l l
i n c l u d e
i n t h e
c o m p l a i n t
f i l e d
i n
t h e
a c t i o n
a
d e t a i l e d
s p e c i f i c a t i o n and
f a c t u a l
d e s c r i p t i o n
o f
e a c h
a c t
and
o m i s s i o n
a l l e g e d
by
p l a i n t i f f
t o r e n d e r t h e h e a l t h c a r e
p r o v i d e r
l i a b l e
t o
p l a i n t i f f
and
s h a l l
i n c l u d e when
f e a s i b l e
and
a s c e r t a i n a b l e
t h e
d a t e ,
t i m e ,
and
p l a c e
o f
t h e
a c t
o r
a c t s .
The
p l a i n t i f f
s h a l l
amend
h i s
c o m p l a i n t
t i m e l y upon a s c e r t a i n m e n t
o f
new
o r
d i f f e r e n t
a c t s
o r
o m i s s i o n s
upon
w h i c h
h i s
c l a i m
i s
b a s e d ;
p r o v i d e d ,
h o w e v e r , t h a t
any
s u c h amendment must
be
made a t
l e a s t
90
d a y s b e f o r e
t r i a l .
Any
c o m p l a i n t
w h i c h
f a i l s
t o
i n c l u d e
s u c h d e t a i l e d s p e c i f i c a t i o n
and
f a c t u a l
d e s c r i p t i o n
o f
e a c h
a c t
and
o m i s s i o n
s h a l l
be
s u b j e c t
t o d i s m i s s a l
f o r
f a i l u r e
t o
s t a t e
a c l a i m upon w h i c h
r e l i e f
may
be g r a n t e d . Any
p a r t y
s h a l l
be
p r o h i b i t e d f r o m c o n d u c t i n g
d i s c o v e r y
w i t h
r e g a r d
t o
any
o t h e r
a c t
o r
o m i s s i o n
o r
f r o m
i n t r o d u c i n g
a t
t r i a l
e v i d e n c e
o f
any
o t h e r
a c t
o r
o m i s s i o n . "
17
1080368
a g a i n s t
a
S t a t e
a g e n t ,
t h e d e f e n d a n t s
i n t h e i r
mandamus
p e t i t i o n
h a v e n o t d e m o n s t r a t e d " a c l e a r
l e g a l
r i g h t " t o a
h o l d i n g t h a t G i v a n ' s g e n e r a l a l l e g a t i o n i n
h e r c o m p l a i n t was
i n s u f f i c i e n t o r t h a t a h e i g h t e n e d - p l e a d i n g r e q u i r e m e n t s h o u l d
a p p l y t o G i v a n i n t h i s c a s e .
See Ex p a r t e Y a n c e y , 8 So. 3d
a t
304.
I I .
G i v a n a r g u e s
t h a t W a t s o n , t h e CA/N i n v e s t i g a t o r ,
a c t e d
b e y o n d h e r a u t h o r i t y a n d i s t h e r e f o r e n o t e n t i t l e d t o S t a t e -
a g e n t
i m m u n i t y .
S p e c i f i c a l l y ,
G i v a n
c o n t e n d s , among
o t h e r
t h i n g s ,
t h a t W a t s o n
f a i l e d t o c o m p l y
w i t h A l a . A d m i n . Code
( D e p a r t m e n t
o f
Human
R e s o u r c e s )
R e g u l a t i o n
6 6 0 - 5 - 3 4 - . 0 5 ( 1 ) ( b ) .
8
R e g u l a t i o n
6
6
0 - 5 - 3 4 . 0 5 ( 1 )
p r o v i d e s
" s t a n d a r d s
f o r
c o n d u c t i n g
CA/N
a s s e s s m e n t s
on
c h i l d
a b u s e / n e g l e c t
r e p o r t s " t h a t "must be f o l l o w e d . "
S u b s e c t i o n
(b)
s t a t e s :
" ( b )
A s s e s s i n g R e p o r t s
w i t h
P a r e n t s .
C o n t a c t
must be i n i t i a t e d
w i t h a c u s t o d i a l p a r e n t
p r o m p t l y
upon r e c e i p t o f a r e p o r t e x c e p t i n i n s t a n c e s where
s u c h
a c t i o n
c o u l d
p o s e
d a n g e r
f o r t h e
c h i l d
8 G i v a n a l s o a l l e g e s t h a t W a t s o n v i o l a t e d A l a . A d m i n . Code
( D e p a r t m e n t o f
Human R e s o u r c e s ) R e g u l a t i o n 6 6 0 - 5 - 5 0 - . 0 7 , w h i c h
r e q u i r e s p e r i o d i c home v i s i t s .
H o w e v e r , t h a t
s e c t i o n ,
w h i c h
a p p l i e s
t o f o s t e r - c a r e
s i t u a t i o n s ,
d i d n o t a p p l y i n t h e
p r e s e n t
c a s e .
18
1080368
i n v o l v e d .
The c o n t a c t
s h o u l d
e s t a b l i s h t h e n e e d
f o r
p r o t e c t i v e
s e r v i c e s o r a g e n c y n o n - i n t e r v e n t i o n .
A
home
v i s i t
i s r e q u i r e d
a n d may be made
w i t h o r
w i t h o u t
p r i o r
n o t i f i c a t i o n . "
G i v a n c o n t e n d s
t h a t W a t s o n v i o l a t e d
s u b s e c t i o n
(b) b e c a u s e ,
she
s a y s , W a t s o n d i d
n o t c o n d u c t a home v i s i t o f S a n d r a a n d
C a r t e r ' s
home
b e f o r e
D o m i n i c
was
r e l e a s e d
t o
S a n d r a ' s
c u s t o d y .
9
W a t s o n d o e s n o t d i s p u t e
t h a t she n e v e r c o n d u c t e d a
9 W a t s o n d i d n o t
make a home v i s i t , b u t
t h e
o n g o i n g s e r v i c e
w o r k e r ,
J a c k s o n ,
t e s t i f i e d
t h a t s h e made u n a n n o u n c e d home
v i s i t s as a p a r t o f h e r w o r k .
H o w e v e r , S a n d r a t e s t i f i e d
t h a t
J a c k s o n ' s
v i s i t s were n o t u n a n n o u n c e d ; S a n d r a a s s e r t e d
t h a t
J a c k s o n a l w a y s t e l e p h o n e d b e f o r e she made a home
v i s i t , a n d
S a n d r a
s t a t e d
t h a t s h e w o u l d
t e l l
C a r t e r
t o l e a v e
b e f o r e
J a c k s o n
a r r i v e d .
J a c k s o n
t e s t i f i e d
t h a t
she d i d n o t f o c u s
on
C a r t e r
b e c a u s e
C a r t e r was n o t l i s t e d
i n t h e CA/N m a t e r i a l s
as a
p o t e n t i a l p e r p e t r a t o r .
J a c k s o n
t e s t i f i e d :
"Q.
[ B y
G i v a n ' s
a t t o r n e y : ]
I s
t h e r e
any
d o c u m e n t a t i o n a n y w h e r e i n y o u r
n a r r a t i v e f r o m t h e
t i m e
t h a t
t h i s
f i l e was o p e n e d w i t h y o u i n A u g u s t
[2005] u n t i l A p r i l 2006 o f any c o n v e r s a t i o n
t h a t you
had
w i t h any o f t h e t h r e e
o t h e r
c h i l d r e n
c o n c e r n i n g
J o r g e
C a r t e r ?
"A. I f t h e r e was i t was a f t e r t h e c h i l d ' s d e a t h .
E v e n t h o u g h he was q u e s t i o n e d he was n o t f o c u s e d on
I t was c l e a r
t h a t he was n o t i n t h e home a n d
t h a t was t h e p a r t o f p o l i c y t o know who l i v e s i n t h e
home.
"Q.
So y o u ' r e s a y i n g t h a t b e t w e e n t h e t i m e t h a t
you
o p e n e d
t h i s
f i l e
... i n A u g u s t
[2005] a n d up
u n t i l t h e t i m e o f t h e c h i l d ' s d e a t h i n
M a r c h
[2006]
t h a t you h a d no i d e a
t h a t J o r g e
C a r t e r was i n
t h e
19
1080368
home v i s i t o f S a n d r a a n d C a r t e r ' s home.
1 0
The
d e f e n d a n t s
a r g u e
t h a t W a t s o n s u b m i t t e d s u b s t a n t i a l
e v i d e n c e i n d i c a t i n g t h a t she v i s i t e d
G i v a n ' s h o u s e a n d M a t t i e
Ware's h o u s e .
H o w e v e r , t h e d e f e n d a n t s do n o t
s p e c i f i c a l l y
c o n t e n d t h a t e i t h e r G i v a n o r M a t t i e q u a l i f i e d as a " c u s t o d i a l
p a r e n t " u n d e r R e g u l a t i o n
6
6
0 - 5 - 3 4 - . 0 5 ( 1 ) ( b ) .
C o n s e q u e n t l y ,
b e c a u s e
G i v a n
o f f e r e d
s u b s t a n t i a l e v i d e n c e
i n d i c a t i n g t h a t
W a t s o n
v i o l a t e d
R e g u l a t i o n
6 6 0 - 5 - 3 4 - . 0 5 ( 1 ) ( b )
a n d b e c a u s e
W a t s o n h a s n o t s u b m i t t e d s u b s t a n t i a l e v i d e n c e i n d i c a t i n g t h a t
home, i s t h a t y o u r
t e s t i m o n y ?
"A.
My t e s t i m o n y i s t h a t i t was r e p o r t e d t o me
t h a t he d i d
n o t l i v e i n [ S a n d r a ' s ] home f r o m more
t h a n one s o u r c e . "
J a c k s o n
a d m i t t e d
t h a t
she h a d r e c e i v e d
a
c o p y
o f a
p s y c h o l o g i c a l e v a l u a t i o n o f S a n d r a i n d i c a t i n g t h a t C a r t e r was
l i v i n g i n
t h e
home w i t h S a n d r a a n d h e r f o u r c h i l d r e n , b u t
she
t e s t i f i e d
t h a t by t h e t i m e she r e c e i v e d t h e r e p o r t C a r t e r was
i n
j a i l .
1 0 S a n d r a
t e s t i f i e d
t h a t
she " r e m e m b e r [ e d ]
[ W a t s o n ' s ]
c o m i n g up t o t h e h o u s e a n d t a l k i n g
w i t h me a n d [ C a r t e r ] . "
H o w e v e r , W a t s o n u n e q u i v o c a l l y
t e s t i f i e d t h a t she d i d n o t
go
t o
S a n d r a ' s h o u s e a t any p o i n t d u r i n g h e r i n v e s t i g a t i o n . W a t s o n
t e s t i f i e d as f o l l o w s :
"Q.
[By G i v a n ' s
a t t o r n e y : ]
A t any p o i n t , d i d
you
e v e r go t o t h e home o f S a n d r a Ware d u r i n g t h e
c o u r s e o f y o u r i n v e s t i g a t i o n ?
"A.
No."
20
1080368
she c o m p l i e d w i t h s u b s e c t i o n ( b ) , W a t s o n h a s n o t d e m o n s t r a t e d
t h a t she i s e n t i t l e d t o S t a t e - a g e n t
i m m u n i t y .
As
s e t f o r t h
a b o v e ,
t h e d e f e n d a n t s
s o u g h t
a
summary
j u d g m e n t
on
a l l c l a i m s
a s s e r t e d
a g a i n s t
t h e m
b y
G i v a n ,
a s s e r t i n g i n t h e i r summary-judgment m o t i o n
t h a t G i v a n
c o u l d
n o t " p r o v i d e any e v i d e n c e t h a t t h e d e f e n d a n t s f a i l e d t o f o l l o w
a p p l i c a b l e l a w o r d e p a r t m e n t a l r u l e s , p r a c t i c e s o r p r o c e d u r e s
o r t h a t t h e y a c t e d o u t s i d e t h e i r a u t h o r i t y as e m p l o y e e s o f t h e
A l a b a m a D e p a r t m e n t o f Human R e s o u r c e s " o r any e v i d e n c e
t h a t
t h e d e f e n d a n t s " a c t e d w i l f u l l y , m a l i c i o u s l y , f r a u d u l e n t l y , i n
b a d
f a i t h ,
b e y o n d
t h e i r
a u t h o r i t y ,
o r
u n d e r
a
m i s t a k e n
i n t e r p r e t a t i o n o f l a w . "
The d e f e n d a n t s h a v e n o t , h o w e v e r ,
d e m o n s t r a t e d i n t h e i r
m a t e r i a l s t o t h i s
C o u r t
t h a t t h e y a r e
e n t i t l e d t o a summary j u d g m e n t as t o a l l
t h e c l a i m s a g a i n s t
W a t s o n .
A c c o r d i n g l y , t h e d e f e n d a n t s ' p e t i t i o n as t o W a t s o n i s
due t o be d e n i e d .
I I I .
Among
o t h e r
t h i n g s ,
G i v a n
c o n t e n d s
t h a t
J a c k s o n , t h e
o n g o i n g
s e r v i c e
w o r k e r ,
f a i l e d
t o c o m p l y
w i t h
what
G i v a n
c h a r a c t e r i z e s as a " m a n d a t o r y c h e c k l i s t " g i v e n t o J a c k s o n i n
a memorandum f r o m h e r s u p e r v i s o r , D o l l a r .
S p e c i f i c a l l y , G i v a n
21
1080368
c o n t e n d s t h a t J a c k s o n
f a i l e d t o c o m p l y w i t h t h e i n s t r u c t i o n s
i n t h e memorandum t o " [ g ] a t h e r more i n f o r m a t i o n on ... J o r g e
C a r t e r ( b a c k g r o u n d c h e c k , e m p l o y m e n t , r e s i d e n c e ,
e t c . ) " a n d
t o
" [ g ] e t r e c o r d s f r o m C h i l d r e n ' s H o s p i t a l c o n c e r n i n g
[ D o m i n i c ' s ]
i n j u r i e s . "
J a c k s o n does n o t d i s p u t e t h a t she f a i l e d t o c o m p l y
w i t h D o l l a r ' s i n s t r u c t i o n s i n t h e memorandum.
I n s t e a d , she
t e s t i f i e d
t h a t she d i d n o t g a t h e r
any i n f o r m a t i o n on
C a r t e r
b e c a u s e she d i d
n o t b e l i e v e t h a t C a r t e r was l i v i n g w i t h S a n d r a
b a s e d upon what t h e f a m i l y and S a n d r a h a d t o l d
h e r .
1 1
The
d e f e n d a n t s a s s e r t t h a t J a c k s o n "may h a v e b e e n n a i v e , b u t t h i s
o n l y a t b e s t
w o u l d amount t o n e g l i g e n c e . "
The
d e f e n d a n t s
f u r t h e r
a s s e r t
t h a t t h e memorandum " i s
n o t DHR
p o l i c y and
s h o u l d n o t d e f e a t
i m m u n i t y . "
N o t a b l y , h o w e v e r , J a c k s o n d o e s n o t a r g u e t h a t she h a d
t h e
d i s c r e t i o n
t o
d i s r e g a r d
D o l l a r ' s
i n s t r u c t i o n s
i n t h e
memorandum; f o r a l l t h a t a p p e a r s i n t h e m a t e r i a l s b e f o r e u s ,
t h e memorandum f r o m D o l l a r t o J a c k s o n was b i n d i n g on J a c k s o n
and r e m o v e d any d i s c r e t i o n J a c k s o n m i g h t have h a d i n d e c i d i n g
w h e t h e r t o p e r f o r m t h e s p e c i f i c
t a s k s
D o l l a r
l i s t e d i n t h e
memorandum.
T h e r e i s
no d i s p u t e t h a t D o l l a r h a d t h e a u t h o r i t y
1 1 S e e
s u p r a n o t e 9.
22
1080368
t o
i m p o s e
m a n d a t o r y
d u t i e s
upon
J a c k s o n i n t h e f o r m o f a
memorandum
l i k e
t h e one
r e l i e d
upon
b y
G i v a n ,
and t h e
memorandum f r o m
D o l l a r t o J a c k s o n was
s u f f i c i e n t l y
c l e a r i n
i t s
i n s t r u c t i o n s and was b i n d i n g on J a c k s o n .
I n t h i s r e g a r d ,
t h e
memorandum
f r o m
D o l l a r t o J a c k s o n i s a n a l o g o u s t o t h e
i n s t r u c t i o n s i n G i a m b r o n e v. D o u g l a s , 874 So. 2d 1046 ( A l a .
2 0 0 3 ) ,
i n w h i c h
a h i g h - s c h o o l w r e s t l i n g
c o a c h ' s
c l a i m o f
S t a t e - a g e n t
i m m u n i t y was d e n i e d b e c a u s e
t h e c o a c h h a d n o t
c o m p l i e d
w i t h
t h e
i n s t r u c t i o n s
o f h i s s u p e r v i s o r ,
t h e
a t h l e t i c s
d i r e c t o r ,
t o , among
o t h e r
t h i n g s ,
f o l l o w
t h e
g u i d e l i n e s o f t h e A l a b a m a H i g h S c h o o l A t h l e t i c
A s s o c i a t i o n .
874 So. 2d a t 1 0 5 3 - 5 5 .
Thus, J a c k s o n ' s f a i l u r e t o c o m p l y
w i t h
t h e
a b o v e - s t a t e d m a n d a t o r y
r e q u i r e m e n t s i n
t h e " c h e c k l i s t " i n
D o l l a r ' s memorandum d e f e a t s h e r c l a i m o f S t a t e - a g e n t i m m u n i t y .
As n o t e d a b o v e ,
" ' " [ a ] S t a t e a g e n t a c t s b e y o n d
a u t h o r i t y and
i s
t h e r e f o r e n o t immune when he o r she ' f a i l [ s ] t o d i s c h a r g e
d u t i e s
p u r s u a n t t o d e t a i l e d
r u l e s o r r e g u l a t i o n s ,
s u c h as
t h o s e s t a t e d on a c h e c k l i s t . ' " ' " Ex p a r t e Y a n c e y , 8 So. 3d a t
305
( q u o t i n g Ex p a r t e E s t a t e o f R e y n o l d s , 946 So. 2d a t 452,
q u o t i n g i n t u r n G i a m b r o n e , 874 So. 2d a t 1052, w h i c h q u o t e d Ex
p a r t e
B u t t s ,
775 So. 2d 173, 178
( A l a .
2000 )
( e m p h a s i s
23
1080368
a d d e d ) ) .
The
d e f e n d a n t s s o u g h t
a summary j u d g m e n t
on
a l l c l a i m s
a g a i n s t them.
However, i n t h e i r m a t e r i a l s t o t h i s C o u r t ,
t h e
d e f e n d a n t s h a v e n o t shown t h a t t h e y a r e
e n t i t l e d t o a summary
j u d g m e n t
as
t o
a l l t h e
c l a i m s
a s s e r t e d
a g a i n s t
J a c k s o n .
A c c o r d i n g l y ,
t h e d e f e n d a n t s ' p e t i t i o n
as t o J a c k s o n i s due
t o
be
d e n i e d .
I V .
G i v a n c o n t e n d s t h a t b o t h E u b a n k s and
D o l l a r " a c t e d b e y o n d
[ t h e i r ]
a u t h o r i t y
i n
f o u r
w a y s . "
As
t o
E u b a n k s ,
G i v a n
c o n t e n d s
(1) t h a t she
" f a i l e d t o r e v i e w ,
s i g n , and a p p r o v e
t h e
J u l y
28 , 2005,
i n i t i a l
[ P D ] I S P " ;
(2)
t h a t
"she
f a i l e d
t o
e n s u r e t h a t t h e
i n i t i a l a s s e s s m e n t be c o m p l e t e d i n n i n e t y d a y s
( i . e . ,
b e f o r e
O c t o b e r
26,
2 0 0 5 ) " ;
(3)
t h a t
she
f a i l e d
t o
" r e v i e w
a l l
i n i t i a l
a s s e s s m e n t s
t o
d e t e r m i n e
t h a t
c h i l d
w e l f a r e
s t a f f h a v e c o m p l i e d w i t h t h e g e n e r a l r e q u i r e m e n t s
and
i n f o r m a t i o n
c o l l e c t i o n
p r o t o c o l
[and]
any
d e v i a t i o n s
h a v e
r e c e i v e d
s u p e r v i s o r y
c o n c u r r e n c e
and
b e e n
a d e q u a t e l y
d o c u m e n t e d " ;
and
(4)
t h a t
"she
a l l o w e d
W a t s o n
t o
g i v e
t h e
d i s p o s i t i o n o f
' i n d i c a t e d ' when she
s h o u l d have g i v e n
' u n a b l e
t o c o m p l e t e . ' "
As
t o
D o l l a r ,
G i v a n c o n t e n d s
(1)
t h a t
"she
24
1080368
f a i l e d
t o e n s u r e
t h a t
t h e
i n i t i a l
r e v i e w o f t h e
[PDISP]
o c c u r r e d
w i t h i n
t h i r t y d a y s " ; (2) t h a t "she f a i l e d t o e n s u r e
t h a t an I S P r e v i e w o c c u r r e d
w i t h i n s i x m o n t h s " ; (3) t h a t " s h e
f a i l e d t o t a k e any a c t i o n t o a d d r e s s o r r e v i s i t t h e r u l e
t h a t
C a r t e r
o n l y h a v e s u p e r v i s e d
v i s i t a t i o n o f t h e c h i l d r e n " ; a n d
(4)
t h a t
"she
f a i l e d
t o
s i g n
J a c k s o n ' s
d e f i c i e n t
c o u r t
r e p o r t . "
I n
s u p p o r t
o f t h e summary-judgment
m o t i o n ,
E u b a n k s
s u b m i t t e d an a f f i d a v i t
s e t t i n g f o r t h t h e f o l l o w i n g :
"As
a S e r v i c e
S u p e r v i s o r
f o r
t h e J e f f e r s o n
C o u n t y
D e p a r t m e n t o f Human R e s o u r c e s , I p e r f o r m e d a l l o f my
d u t i e s
w i t h i n t h e l i n e a n d s c o p e o f my e m p l o y m e n t .
I
s u p e r v i s e d
t h e
c h i l d
a b u s e
a n d
n e g l e c t
i n v e s t i g a t i v e w o r k e r , L a c i W a t s o n , who was
a s s i g n e d
t o
i n v e s t i g a t e
a l l e g a t i o n s
o f
p h y s i c a l ,
a b u s e
c o n c e r n i n g
D o m i n i c
Ware. My
d u t i e s
as a
S e r v i c e
S u p e r v i s o r
i n c l u d e d t h e f o l l o w i n g :
" 1 . S u p e r v i s e s a n d m o n i t o r s t h e
C h i l d P r o t e c t i v e
S e r v i c e s
I n v e s t i g a t i o n
P r o g r a m
so
t h a t
i n v e s t i g a t i o n s
a r e
i n i t i a t e d ,
c o n d u c t e d ,
a n d
c o m p l e t e d
[ i n ] a c c o r d a n c e t o p o l i c y .
"2. C o r r e c t l y c o m p i l e s a n d t i m e l y s u b m i t s
[ S t a t e
D e p a r t m e n t o f Human R e s o u r c e s ] a n d l o c a l l y
r e q u i r e d
m o n t h l y ,
q u a r t e r l y , a n d a n n u a l p r o g r a m
r e p o r t s so
t h a t few e r r o r s a r e n o t e d .
"4.
P l a n s ,
o r g a n i z e s ,
a s s i g n s ,
m o n i t o r s ,
e v a l u a t e s
a n d
c o o r d i n a t e s
u n i t
work
i n c l u d i n g
c o r r e c t i v e a c t i o n p l a n s , as n e e d e d , so t h a t
r e q u i r e d
25
1080368
w o r k i s c o m p l e t e .
"5.
S u p e r v i s e s , s u p p o r t s ,
i n s t r u c t s
e m p l o y e e s
t h r o u g h
t r a i n i n g ,
c o n s u l t a t i o n ,
e v a l u a t i o n
and
l e a d e r s h i p so t h a t s t a f f i s p r o f i c i e n t i n j o b t a s k s .
"7.
S u p e r v i s e s / E v a l u a t e s t h e p e r f o r m a n c e
o f
s t a f f
i n o r d e r
t o
d e t e r m i n e
t h e
l e v e l
o f
w o r k
p e r f o r m a n c e ,
i d e n t i f y
t r a i n i n g
n e e d s ,
and
c o m p l i a n c e .
f i
"9. M a i n t a i n s s u p e r v i s e e ' s f i l e s w h i c h
i n c l u d e
a t
a
minimum
c o p i e s
o f
p r e a p p r a i s a l s ,
r e s p o n s i b i l i t i e s
s t a t e m e n t s ,
f o r m
40, n o t e s
f r o m
c o n f e r e n c e s . ...
"10.
F a c i l i t a t e
and
a t t e n d
I S P ' s / p l a c e m e n t
d e c i s i o n I S P ' s when n e c e s s a r y . ...
"
D o l l a r
s u b m i t t e d a s u b s t a n t i a l l y
s i m i l a r
a f f i d a v i t
s e t t i n g
f o r t h h e r s u p e r v i s o r y r e s p o n s i b i l i t i e s and a s s e r t i n g t h a t she
" p e r f o r m e d
a l l o f [ h e r ] d u t i e s w i t h i n t h e l i n e and s c o p e o f
[ h e r ] e m p l o y m e n t , " i n c l u d i n g t h e s u p e r v i s i o n o f J a c k s o n .
I n Gowens v . T y s . S., 948 So. 2d 513 ( A l a . 2 0 0 6 ) ,
t h i s
C o u r t
a d d r e s s e d
s i m i l a r
c l a i m s b r o u g h t
a g a i n s t a s u p e r v i s o r
( C h a r i t y Rose) a t t h e J e f f e r s o n
C o u n t y
D e p a r t m e n t o f Human
R e s o u r c e s .
R e g a r d i n g t h o s e c l a i m s , t h e Gowens C o u r t
s t a t e d :
"The
p l a i n t i f f s
c o n t e n d
t h a t t h e t r i a l
c o u r t
e r r e d i n e n t e r i n g a summary j u d g m e n t f o r
Rose on t h e
g r o u n d o f S t a t e - a g e n t i m m u n i t y .
S p e c i f i c a l l y , t h e
26
1080368
t r i a l
c o u r t
s t a t e d :
" ' D e f e n d a n t C h a r i t y Rose ... was i n
a
s u p e r v i s o r y
p o s i t i o n .
The a c t i o n s
w h i c h
she
t o o k
w i t h
r e g a r d
t o
t h i s
c a s e i n
a s s i g n i n g
D e f e n d a n t
Gowens
a n d
t h e n
f o l l o w i n g
up
on
t h e
r e p o r t s
t h a t
he
g e n e r a t e d d i d c a l l upon D e f e n d a n t Rose t o
e x e r c i s e
j u d g m e n t a n d d i s c r e t i o n i n ways
t h a t
[ t h e p l a i n t i f f s h a v e ] n o t shown t o
t h e
c o u r t were d i r e c t e d a n d g u i d e d b y c l e a r a n d
d e f i n i t e r u l e s , r e g u l a t i o n s a n d g u i d e l i n e s .
T h e r e f o r e ,
t h e c o u r t
f i n d s , as a m a t t e r o f
l a w t h a t s t a t e - a g e n t
i m m u n i t y does a p p l y t o
t h e a l l e g a t i o n s made a g a i n s t D e f e n d a n t Rose
and
s e r v e
as a c o m p l e t e
d e f e n s e t o t h e
c h a r g e s
made
a g a i n s t
h e r
i n
[ t h e
p l a i n t i f f s ' ]
c o m p l a i n t . '
"We a g r e e w i t h t h e t r i a l
c o u r t .
The c o m p l a i n t
a l l e g e d
t h a t
Rose
was
' r e s p o n s i b l e
f o r t h e
s u p e r v i s i o n
a n d m o n i t o r i n g
o f ... Gowens a n d
f o r
r e v i e w i n g
f i n d i n g s
o f
s u s p e c t e d
n e g l e c t
o r
i n a d e q u a t e
s u p e r v i s i o n
a n d
f o r
e n s u r i n g
t h a t
a p p r o p r i a t e
a c t i o n
[be] t a k e n i n r e s p o n s e t o s u c h
f i n d i n g s . '
( E m p h a s i s added.)
I t a l s o a l l e g e d
t h a t
Rose h a d a
' d u t y t o p r o p e r l y
a c t upon
D e f e n d a n t
Gowens's
r e p o r t s
o f
s u s p e c t e d
c h i l d
n e g l e c t
b y
T y m i s h a
[ S . ] . '
"Rose c o n t e n d s
t h a t she i s e n t i t l e d t o S t a t e -
a g e n t i m m u n i t y , b e c a u s e , she i n s i s t s , she i s b e i n g
s u e d
f o r
' h e r
s u p e r v i s i o n
o f
Gowens's
CAN
i n v e s t i g a t i o n , ' w h i c h , she i n s i s t s , r e q u i r e d h e r
' t o
e x e r c i s e h e r d i s c r e t i o n a n d p r o f e s s i o n a l j u d g m e n t i n
t h e p e r f o r m a n c e o f d i s c r e t i o n a r y d u t i e s
s p e c i f i c a l l y
e n u m e r a t e d i n t h e Cranman t e s t . '
R o s e ' s b r i e f , a t
26
( e m p h a s i s
a d d e d ) .
T h e r e was ample
t e s t i m o n y
i n d i c a t i n g
t h a t Rose was o p e r a t i n g
w i t h i n t h e l i n e
and
s c o p e
o f h e r employment
b y t h e
[ J e f f e r s o n
C o u n t y ] DHR as a
' s e n i o r
s o c i a l work
s u p e r v i s o r . '
A c c o r d i n g
t o i t s o f f i c i a l
d e s c r i p t i o n ,
h e r j o b
27
1080368
' i n v o l v [ e d ]
p l a n n i n g ,
p r i o r i t i z i n g ,
and
r e v i e w i n g
[ t h e ]
w o r k o f s t a f f
i n v o l v e d i n a s s i g n e d
a r e a ( s ) ;
...
r e c o m m e n d i n g
and
p a r t i c i p a t i n g
i n
t h e
i m p l e m e n t a t i o n o f g o a l s and o b j e c t i v e s ; i m p l e m e n t i n g
p o l i c i e s
and
p r o c e d u r e s
o f
a s s i g n e d
p r o g r a m
a c t i v i t i e s ; p a r t i c i p a t i n g
i n
t h e s e l e c t i o n o f s t a f f ;
and
p r o v i d i n g o r c o o r d i n a t i n g
s t a f f
t r a i n i n g . '
The
e v i d e n c e was s u f f i c i e n t t o s h i f t t h e b u r d e n t o t h e
p l a i n t i f f s
t o show
t h a t
Rose
' a c t e d
w i l l f u l l y ,
m a l i c i o u s l y ,
f r a u d u l e n t l y , i n
b a d f a i t h , '
G i a m b r o n e
[ v .
D o u g l a s ] ,
874 So. 2d
[1046,] a t 1052
[ ( A l a .
2 0 0 3 ) ] , o r t h a t she 'was n o t e x e r c i s i n g [ h e r ] ...
j u d g m e n t i n t h e manner s e t f o r t h i n t h e e x a m p l e s i n
Cranman.'
Ex p a r t e
Hudson , 866 So. 2d [1115,] a t
1118
[ ( A l a . 2 0 0 3 ) ] .
"The
p l a i n t i f f s do n o t c o n t e n d t h a t Rose
' a c t e d
w i l l f u l l y ,
m a l i c i o u s l y ,
f r a u d u l e n t l y ,
[ o r ] i n b a d
f a i t h . '
I n s t e a d ,
t h e y
i n s i s t
t h a t
'Rose, as t h e
s u p e r v i s o r ,
i s r e q u i r e d t o ... r e v i e w a n d a p p r o v e
e a c h CAN i n v e s t i g a t i o n ' w i t h i n 60 d a y s , and t h a t she
d i d
n o t
a c t u a l l y
s i g n
t h e S e p t e m b e r
CAN
r e p o r t
w i t h i n t h a t t i m e p e r i o d .
P l a i n t i f f s '
b r i e f , a t 2 1 ¬
22.
They
c i t e
t h e f o l l o w i n g
p r o v i s i o n s
o f t h e
[ D e p a r t m e n t
o f
Human
R e s o u r c e s ]
M a n u a l
and
i n s t r u c t i o n s f o r
c o m p l e t i n g c e r t a i n f o r m s :
" ' [ 1 ] A f t e r a s s e s s i n g t h e s t r e n g t h and r i s k
i n t h e
home, t h e
w o r k e r and s u p e r v i s o r
w i l l
d e t e r m i n e t h e l e v e l o f r i s k o f harm t o
t h e
c h i l d .
The s i g n a t u r e s
o f t h e w o r k e r and
s u p e r v i s o r
a r e r e q u i r e d on Form
DHR-DFC-
1924B t o document t h a t t h e y have e x a m i n e d
t h e
r i s k f a c t o r s and c o n c u r on t h e l e v e l o f
r i s k
and
t h e
e x p l a n a t i o n
f o r
t h e i r
d e t e r m i n a t i o n .
I f a d e t e r m i n a t i o n
o f h i g h
r i s k
i s made,
a
s a f e t y
p l a n
s h a l l
be
d e v e l o p e d
t o d e t e r m i n e
i m m e d i a t e
a c t i o n
r e q u i r e d t o p r o t e c t t h e c h i l d ( r e n ) .
28
1080368
" ' [ 2 ]
I f
t h e
w o r k e r
and
s u p e r v i s o r
d e t e r m i n e t h a t t h e c h i l d v i c t i m i s
a t r i s k ,
a c t i o n s
t o
p r o t e c t
t h e
c h i l d
must
be
i m p l e m e n t e d
i m m e d i a t e l y .
A
s a f e t y
p l a n
must be d e v e l o p e d w h i c h a d d r e s s e s t h e r i s k
f a c t o r s / c o m b i n a t i o n o f r i s k f a c t o r s and
t h e
i n t e r v e n t i o n s t o e f f e c t i v e l y
manage
t h e s e
r i s k s . The w o r k e r / s u p e r v i s o r i n c o n j u n c t i o n
w i t h t h e p a r e n t / c a r e t a k e r , t h e c h i l d i f age
a p p r o p r i a t e ,
and a p p r o p r i a t e
p e r s o n s
who
a r e
i n v o l v e d i n c a s e
p l a n n i n g
a c t i v i t i e s
w i t h
t h e f a m i l y
w i l l
d e v i s e
a
p l a n
t o
p r o t e c t t h e c h i l d .
The s a f e t y p l a n i s
t o
be d o c u m e n t e d on Form DHR-DFC-1924C, H i g h
R i s k
P r o t o c o l
( S a f e t y
P l a n ) .
The w o r k e r
and
s u p e r v i s o r a r e t o s i g n and d a t e t h e
s a f e t y p l a n t o i n d i c a t e t h e i r
c o n c u r r e n c e
and
a p p r o v a l .
N o t e : The s a f e t y p l a n f o r
l o w
and
m o d e r a t e
r i s k
may
a l s o
be
d o c u m e n t e d on t h e DHR-DFC-1924C o r may be
r e c o r d e d i n t h e c a s e n a r r a t i v e .
f l
I
" ' [ 3 ] I n S e c t i o n V [ o f
Form DHR-DFC-192 4C,
H i g h R i s k P r o t o c o l P a r t C ] , t h e w o r k e r and
s u p e r v i s o r who d e v e l o p t h e s a f e t y p l a n must
s i g n and d a t e t h e f o r m as w e l l as any o t h e r
p a r t i c i p a n t s s u c h as p a r e n t s o r
r e l a t i v e s .
These
s i g n a t u r e s
show
c o n c u r r e n c e
and
a p p r o v a l
o f
t h e
s a f e t y
p l a n .
I t i s
i m p o r t a n t
t o
o b t a i n
t h e
s i g n a t u r e
o f
i n d i v i d u a l s
i d e n t i f i e d as t h e " r e s p o n s i b l e
and
r e l i a b l e
p e r s o n "
a n d / o r " c a r e t a k e r " t o
document t h e i r a c c e p t a n c e o f
r e s p o n s i b i l i t y
t o p r o t e c t t h e c h i l d . '
" ( E m p h a s i s
o m i t t e d . )
P a r a g r a p h s one a n d two a r e
c o n t a i n e d
i n t h e [ D e p a r t m e n t o f Human
R e s o u r c e s ]
M a n u a l ,
w h i l e
p a r a g r a p h
t h r e e i s c o n t a i n e d
i n t h e
' I n s t r u c t i o n s f o r
C o m p l e t i n g t h e H i g h R i s k
P r o t o c o l
P a r t s A, B, and C.'
The
p l a i n t i f f s '
r e l i a n c e on
29
1080368
t h e s e
p r o v i s i o n s i s u n p e r s u a s i v e .
"The
p l a i n t i f f s '
t h e o r y o f t h e c a s e i s t h a t t h e
[ J e f f e r s o n
C o u n t y ]
DHR
c o n d u c t e d
a
n e g l i g e n t
i n v e s t i g a t i o n o f t h e S e p t e m b e r CAN r e p o r t , a n d t h e i r
t h e o r y a g a i n s t R o s e , s p e c i f i c a l l y ,
i s
t h a t she a c t e d
n e g l i g e n t l y i n s u p e r v i s i n g Gowens's i n v e s t i g a t i o n .
On i t s f a c e ,
t h e i r t h e o r y
a g a i n s t Rose i s ' c o n t r a r y
t o
w e l l - e s t a b l i s h e d i m m u n i t y p r i n c i p l e s . '
V i c k v .
S a w y e r , 936 So. 2d [517,] a t 527 [ ( A l a . 2 0 0 6 ) ] .
See
a l s o L o v e v . D a v i s , 14 F. Supp. 2d 1 2 7 3 , 1278 (M.D.
A l a .
1998)
( ' [ B ] e c a u s e
s u p e r v i s o r y
a n d
t r a i n i n g
f u n c t i o n s
r e q u i r e
c o n s t a n t
d e c i s i o n - m a k i n g ,
t h e y
a r e , f o r
t h e most p a r t , d i s c r e t i o n a r y . ' ) .
"The
p l a i n t i f f s
p o i n t t o no r u l e o r r e g u l a t i o n
r e q u i r i n g
Rose
t o
c o n d u c t
an
i n v e s t i g a t i o n
i n d e p e n d e n t
o f Gowens's
i n v e s t i g a t i o n .
I n s t e a d ,
a c c o r d i n g
t o t h e p o r t i o n s
o f t h e [ D e p a r t m e n t o f
Human
R e s o u r c e s ]
M a n u a l
on w h i c h
t h e
p l a i n t i f f s
r e l y ,
R o s e ' s
p o s i t i o n
r e q u i r e d h e r t o
' a s s e s s , '
' d e t e r m i n e , '
' e x a m i n e , '
' c o n c u r , ' a n d ' d e v i s e ' a n d
' d e v e l o p '
p l a n s .
These
a c t i v i t i e s
a l l i n v o l v e
j u d g m e n t a n d d i s c r e t i o n .
By d e f i n i t i o n , as w e l l as
i n
o p e r a t i o n ,
t h e y a r e n o t ' c h e c k l i s t '
a c t i v i t i e s ,
l i k e t h e one r e q u i r i n g Gowens t o v e r i f y t h e number
o f c h i l d r e n i n
t h e
home by u s i n g an o u t s i d e
s o u r c e .
W i t h o u t an i n d e p e n d e n t d u t y t o i n v e s t i g a t e , t h e f a c t
t h a t Rose d i d
n o t a c t u a l l y
s i g n t h e S e p t e m b e r CAN
r e p o r t w i t h i n 60 d a y s i s i m m a t e r i a l . "
948 So. 2d a t 5 3 1 - 3 2 .
The
d e f e n d a n t s i n t h e p r e s e n t
c a s e p o i n t o u t t h a t ,
l i k e
t h e
c l a i m s
a g a i n s t
t h e s u p e r v i s o r
i n Gowens,
a l l G i v a n ' s
a l l e g a t i o n s a g a i n s t E u b a n k s a n d D o l l a r a r e
a d d r e s s e d s o l e l y t o
s u p e r v i s i o n - - i . e . , E u b a n k s ' s r e v i e w o f t h e CA/N a n d W a t s o n ' s
w o r k , a n d D o l l a r ' s r e v i e w o f J a c k s o n ' s w o r k .
G i v a n d o e s n o t
30
1080368
r e f e r t o any r u l e o r r e g u l a t i o n r e q u i r i n g E u b a n k s o r D o l l a r t o
a c t
i n d e p e n d e n t l y
o f t h e w o r k e r s
t h e y
were
s u p e r v i s i n g .
C o n s e q u e n t l y ,
E u b a n k s a n d D o l l a r
h a v e shown t h a t
t h e y a r e
e n t i t l e d t o S t a t e - a g e n t i m m u n i t y f o r
G i v a n ' s
c l a i m s a g a i n s t
them.
C o n c l u s i o n
The
p e t i t i o n
i s d e n i e d
as t o W a t s o n ' s
a n d
J a c k s o n ' s
c l a i m s o f S t a t e - a g e n t i m m u n i t y ; t h e p e t i t i o n i s
g r a n t e d as
t o
D o l l a r ' s a n d E u b a n k s ' s c l a i m s o f S t a t e - a g e n t
i m m u n i t y .
P E T I T I O N GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.
Cobb, C . J . ,
a n d L y o n s ,
W o o d a l l ,
S t u a r t ,
B o l i n ,
P a r k e r ,
and Shaw, J J . , c o n c u r .
M u r d o c k , J . ,
c o n c u r s i n p a r t a n d d i s s e n t s i n p a r t .
31
1080368
MURDOCK, J u s t i c e ( c o n c u r r i n g i n p a r t and
d i s s e n t i n g i n p a r t ) .
A d o p t i n g t h e
a n a l y s i s p r o v i d e d
by
Ex
p a r t e Cranman, 7 92
So.
2d 392
( A l a . 2 0 0 0 ) , t h i s C o u r t i n Ex p a r t e
B u t t s ,
775
So.
2d 173
( A l a . 2 0 0 0 ) , h e l d t h a t a S t a t e e m p l o y e e s u e d i n h i s
o r
h e r
i n d i v i d u a l c a p a c i t y f o r t o r t i o u s w r o n g d o i n g e n j o y s
S t a t e -
a g e n t i m m u n i t y f r o m
l i a b i l i t y
i f t h e w r o n g d o i n g o c c u r s
w h i l e
t h e
e m p l o y e e
i s
p e r f o r m i n g
c e r t a i n
t y p e s
o f
a c t i v i t i e s
p r e v i o u s l y
c a t e g o r i z e d
as
" d i s c r e t i o n a r y
f u n c t i o n s . "
I n
a d d i t i o n ,
c o n s i s t e n t
w i t h
t h e
p r e - C r a n m a n
r e c o g n i t i o n
o f
i m m u n i t y f o r s o - c a l l e d " m i n i s t e r i a l d u t i e s , " Cranman and
B u t t s
r e c o g n i z e d
t h e
a v a i l a b i l i t y
o f
S t a t e - a g e n t
i m m u n i t y
f o r
t o r t i o u s c o n d u c t c o m m i t t e d b y an e m p l o y e e w h i l e
" ' d i s c h a r g i n g
d u t i e s i m p o s e d on a d e p a r t m e n t o r a g e n c y b y
s t a t u t e , r u l e ,
o r
r e g u l a t i o n ,
i n s o f a r
as
t h e
s t a t u t e ,
r u l e ,
o r
r e g u l a t i o n
p r e s c r i b e s t h e manner f o r p e r f o r m i n g t h e d u t i e s a n d
t h e
S t a t e
a g e n t p e r f o r m s t h e d u t i e s i n t h a t manner.'" B u t t s ,
775
So.
2d
a t 178
( q u o t i n g Cranman, 792
So.
2d a t 4 0 5 ) .
I do
n o t
t h i n k
t h a t t h e c o n v e r s e o f t h e
l a t t e r
r u l e i s p a r t o f o u r
i m m u n i t y
l a w .
T h a t
i s , when
an
e m p l o y e e d o e s
n o t
do
e v e r y t h i n g
i n
c o m p l e t e a c c o r d a n c e
w i t h
an
a p p l i c a b l e
r e g u l a t i o n
o r
o t h e r
d i r e c t i v e ,
I do
n o t
b e l i e v e t h e " b e y o n d a u t h o r i t y "
e x c e p t i o n
32
1080368
r e c o g n i z e d
i n B u t t s
n e c e s s a r i l y
s t r i p s t h e e m p l o y e e o f a n y
S t a t e - a g e n t i m m u n i t y he o r s h e w o u l d o t h e r w i s e h a v e .
S p e c i f i c a l l y ,
f r o m t h e p e r s p e c t i v e
o f t h e how t h e l a w
v i e w s t h e e m p l o y e e ' s r e l a t i o n s h i p t o t h e i n j u r e d p a r t y , I do
n o t
b e l i e v e
t h a t t h e f a i l u r e o f an e m p l o y e e t o f o l l o w
e v e r y
a p p l i c a b l e
r e g u l a t i o n
o r e v e r y
i n s t r u c t i o n
g i v e n
t o t h e
e m p l o y e e b y a s u p e r v i s o r
n e c e s s a r i l y means t h a t t h e e m p l o y e e ,
f o r p u r p o s e s o f a S t a t e - a g e n t - i m m u n i t y
a n a l y s i s , h a s
a c t e d
b e y o n d t h e a u t h o r i t y o t h e r w i s e g i v e n t o h i m o r h e r b y l a w . I n
a g i v e n
c a s e , i t
may be t h a t t h e e m p l o y e e h a s a c t e d i n b a d
f a i t h
i n n o t f o l l o w i n g an
a p p l i c a b l e
d i r e c t i v e
( a n d a s a
r e s u l t
f a l l s
w i t h i n t h e b a d - f a i t h
e x c e p t i o n
t o S t a t e - a g e n t
i m m u n i t y ) o r p e r h a p s h a s a c t e d
w a n t o n l y
( t h o u g h A l a b a m a h a s
n o t r e c o g n i z e d an e x c e p t i o n t o S t a t e - a g e n t i m m u n i t y f o r w a n t o n
c o n d u c t ) .
I am c o n c e r n e d , h o w e v e r , t h a t we a r e m o v i n g t o a
p l a c e
i n o u r l a w i n w h i c h we
c o n s i d e r
a n y v i o l a t i o n o f a n y
r e g u l a t i o n a n d a n y v i o l a t i o n o f a memorandum o f i n s t r u c t i o n
( o r
f o r t h a t
m a t t e r
e v e n
an
o r a l
i n s t r u c t i o n )
f r o m
a
s u p e r v i s o r
t o d e p r i v e
an e m p l o y e e o f o t h e r w i s e
a p p l i c a b l e
S t a t e - a g e n t i m m u n i t y on t h e g r o u n d t h a t he o r s h e i s a c t i n g
" b e y o n d h i s
o r h e r a u t h o r i t y . "
33
1080368
O b v i o u s l y ,
i n
one
s e n s e ,
no
S t a t e
e m p l o y e e
i s
" a u t h o r i z e d " t o v i o l a t e any a p p l i c a b l e r e g u l a t i o n , f e d e r a l o r
s t a t e ,
o r
t o
d i s r e g a r d
a p p r o p r i a t e
i n s t r u c t i o n s
f r o m
a
s u p e r v i s o r .
M u s t
we
n o t
be
c i r c u m s p e c t ,
h o w e v e r ,
i n
c o n c l u d i n g
t h a t m e r e l y b e c a u s e an e m p l o y e e
f a i l s t o f o l l o w a
r e q u i r e m e n t o f a r e g u l a t i o n o r a l l
t h e i n s t r u c t i o n s g i v e n
t o
h i m o r h e r i n a memorandum f r o m a s u p e r v i s o r ,
t h e
e m p l o y e e ,
i n s o f a r as a t h i r d p a r t y i s c o n c e r n e d , h a s a c t e d b e y o n d h i s o r
h e r
a u t h o r i t y as
an
o f f i c i a l
o r e m p l o y e e o f t h e a g e n c y
o r
d e p a r t m e n t
i n v o l v e d ?
I f t h a t i s t h e s e n s e i n w h i c h we a r e t o
a d d r e s s t h e m a t t e r , t h e n w o u l d we n o t be o b l i g e d t o s a y
t h a t
an e m p l o y e e
t o l d b y h i s o r h e r s u p e r v i s o r a l w a y s t o
r e f r a i n
f r o m
any
t o r t i o u s c o n d u c t
v i s - a - v i s t h i r d
p a r t i e s
w i l l
be
a c t i n g b e y o n d t h e e m p l o y e e ' s
a u t h o r i t y w h e n e v e r he o r she d o e s
o t h e r w i s e ?
I n d e e d ,
a
d i r e c t i v e
f r o m a
s u p e r v i s o r
t o
t h i s
e f f e c t w o u l d n o t e v e n be n e c e s s a r y b e c a u s e , i n t h i s s e n s e , an
e m p l o y e e
n e v e r
h a s
t h e
a u t h o r i t y t o a c t
t o r t i o u s l y
t o w a r d
o t h e r s .
My p o i n t i s t h i s :
I f e a r t h a t t h e manner i n w h i c h
t h i s
C o u r t h a s b e g u n t o a p p l y t h e " b e y o n d
a u t h o r i t y " e x c e p t i o n
t o
S t a t e - a g e n t
i m m u n i t y
d o e s
n o t
a l l o w
f o r t h e
d r a w i n g
on
a
34
1080368
p r i n c i p l e d b a s i s o f a l i n e t h a t p r e v e n t s t h i s e x c e p t i o n
( w h i c h
i n c r e a s i n g l y i s
t h e s u b j e c t o f o u r S t a t e - a g e n t - i m m u n i t y c a s e s )
f r o m b e c o m i n g an e x c e p t i o n
t h a t s w a l l o w s t h e r u l e .
T h i s
C o u r t
h a s
i n t h e
p a s t
o f t e n
l o o k e d
t o t h e
R e s t a t e m e n t
(Second) o f T o r t s § 895D (1979) f o r g u i d a n c e i n
t h i s
a r e a .
See B e l l v . C h i s o m , 421 So. 2d 1239, 1240
( A l a .
1 9 8 2 ) .
The R e s t a t e m e n t , a s i t
now r e a d s a n d a s i t
h a s r e a d
f o r o v e r 30 y e a r s ,
p r o v i d e s t h e f o l l o w i n g i n s i g h t a s t o w h a t
i s meant when we s p e a k o f an e m p l o y e e a c t i n g b e y o n d h i s
o r h e r
a u t h o r i t y :
"An i m m u n i t y p r o t e c t s an o f f i c e r
o n l y t o t h e e x t e n t
t h a t
he
i s a c t i n g
i n t h e
g e n e r a l
s c o p e
o f h i s
o f f i c i a l a u t h o r i t y .
When he goes e n t i r e l y b e y o n d i t
and does an a c t t h a t i s n o t p e r m i t t e d
a t a l l b y t h a t
d u t y , he i s n o t a c t i n g i n h i s c a p a c i t y as a p u b l i c
o f f i c e r o r e m p l o y e e and he h a s no more i m m u n i t y t h a n
a p r i v a t e
c i t i z e n .
I t i s as i f
a p o l i c e o f f i c e r o f
one
s t a t e makes an a r r e s t i n a n o t h e r s t a t e where he
has no
a u t h o r i t y . "
R e s t a t e m e n t (Second) o f T o r t s § 895D cmt. g ( e m p h a s i s a d d e d ) .
I n o t h e r w o r d s , t h e c o n c e p t o f a S t a t e e m p l o y e e a c t i n g b e y o n d
h i s
o r h e r
a u t h o r i t y
c o r r e s p o n d s
w i t h
t h e c o n c e p t
o f an
e m p l o y e e
a c t i n g
o u t s i d e
t h e l i n e
and s c o p e o f h i s o r h e r
35
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e m p l o y m e n t .
1 2
I t has n e v e r b e e n a c o n c e p t i n t e n d e d t o a d d r e s s
e v e r y s i t u a t i o n i n w h i c h a S t a t e e m p l o y e e ,
w h i l e a c t i n g
w i t h i n
t h e
g e n e r a l
l i n e
and
s c o p e
o f
h i s
o r
h e r
e m p l o y m e n t ,
n o n e t h e l e s s
v i o l a t e s
some
f e d e r a l
o r
s t a t e
r e g u l a t i o n ,
i n s t r u c t i o n s
f r o m h i s o r h e r
s u p e r v i s o r ,
o r , t a k e n t o i t s
l o g i c a l c o n c l u s i o n , A l a b a m a l a w p r o h i b i t i n g n e g l i g e n t c o n d u c t .
I n Cranman a n d B u t t s
t h i s C o u r t r e c o g n i z e d a n d
e n d o r s e d
t h e
d e c i s i o n i n D e S t a f n e y v. U n i v e r s i t y o f A l a b a m a , 413 So. 2d
391
( A l a . 1 9 8 1 ) , t o no l o n g e r h a v e an "open d o o r t o
l a w s u i t s
a g a i n s t S t a t e e m p l o y e e s , " " e v e n when [ t h e ] c o n d u c t [ c o m p l a i n e d
o f ]
i s c o m m i t t e d
i n t h e
l i n e
a n d s c o p e
o f
... e m p l o y m e n t . "
Cranman,
792
So.
2d
a t
402
( e m p h a s i s
a d d e d ) .
As
Cranman
1 2 T h e
" b e y o n d
a u t h o r i t y "
c o n c e p t
a p p e a r s
t o h a v e
b e e n
b o r r o w e d
f r o m t h e l a w o f r e s p o n d e a t s u p e r i o r , and i t s i m p o r t
and
f i e l d
o f o p e r a t i o n f o r p u r p o s e s o f i m m u n i t y l a w a r g u a b l y
a r e
g u i d e d a c c o r d i n g l y .
As e x p l a i n e d i n Cranman and
c o u n t l e s s
o t h e r i m m u n i t y c a s e s d e c i d e d by
t h i s C o u r t , t h e w h o l e
o b j e c t
o f
o u r a t t e m p t t o a r t i c u l a t e s t a n d a r d s and e x c e p t i o n s i n t h i s
a r e a
i s
t o
e x p l a i n
u n d e r
what
c i r c u m s t a n c e s
j u d i c i a l
i n t e r f e r e n c e
w i t h
o r
s a n c t i o n
o f an
e m p l o y e e ' s
c o n d u c t
i s
t a n t a m o u n t t o i n t e r f e r e n c e w i t h o r s a n c t i o n o f c o n d u c t o f t h e
S t a t e
i t s e l f .
J u s t
as
t h e
c o n c e p t
o f
l i n e
and
s c o p e
o f
e m p l o y m e n t d e s c r i b e s t h e c i r c u m s t a n c e i n w h i c h an
e m p l o y e e ' s
c o n d u c t i s t r e a t e d as t h e c o n d u c t o f t h e e m p l o y e r f o r p u r p o s e s
o f
t o r t l a w g e n e r a l l y , i t h e l p s d e s c r i b e t h o s e s i t u a t i o n s i n
w h i c h a S t a t e e m p l o y e e c a n n o t be c o n s i d e r e d as a c t i n g
" b e y o n d
h i s
o r h e r a u t h o r i t y " f o r p u r p o s e s o f t h i s e x c e p t i o n t o S t a t e -
a g e n t
i m m u n i t y .
36
1080368
r e c o g n i z e d ,
i t was
t o t h i s
e n d
t h a t t h e C o u r t i n D e S t a f n e y
" a d o p t e d a r u l e o f q u a l i f i e d i m m u n i t y d e r i v e d f r o m ... § 895D"
a n d t h e r e b y " p a r t i a l l y c l o s e d t h e d o o r t h a t h a d b e e n o p e n e d i n
E l m o r e
[ v . F i e l d s ,
153 A l a . 345, 351, 45 So. 66, 67
( 1 9 0 7 ) ] "
t o l a w s u i t s u n d e r s u c h c i r c u m s t a n c e s . Cranman, 792 So. 2d a t
402.
I n Cranman a n d B u t t s , t h i s C o u r t r e a f f i r m e d t h e d e c i s i o n
t o
k e e p
t h a t
d o o r
p a r t i a l l y
c l o s e d ,
e v e n
as
t h o s e
c a s e s
" r e s t a t e d " t h e r u l e g o v e r n i n g S t a t e - a g e n t i m m u n i t y .
Cranman,
792
So.
2d a t 405.
I n s o d o i n g ,
t h i s
C o u r t
r e j e c t e d
t h e
r a t i o n a l e f r o m t h e 1907 c a s e o f E l m o r e t h a t " b e c a u s e t h e S t a t e
c a n do no w r o n g , i t s a g e n t s , when c o m m i t t i n g a t o r t , a r e n o t
a c t i n g w i t h i n t h e i r a u t h o r i t y a n d , t h e r e f o r e , t h e y do n o t a c t
on b e h a l f o f t h e S t a t e . "
Cranman, 792 So. 2d a t 400
( c i t i n g
E l m o r e , 153 A l a . a t 3 5 1 , 45 So. a t 6 7 ) .
I am c o n c e r n e d
t h a t
t h e manner i n w h i c h
r e c e n t c a s e s h a v e
a p p l i e d
t h e
" b e y o n d
a u t h o r i t y " e x c e p t i o n t o S t a t e - a g e n t i m m u n i t y r e p r e s e n t s s t e p s
b a c k t o w a r d E l m o r e .
We
a r e n o t a s k e d i n t h i s
c a s e t o d e c i d e i n t o w h i c h , i f
a n y ,
o f
t h e
s o - c a l l e d
Cranman
c a t e g o r i e s
o f
i m m u n i t y
t h e
i n v e s t i g a t o r y d u t i e s o f L a c i Watson and E r i c a J a c k s o n f e l l
n o r
w h e t h e r
any
o t h e r
e x c e p t i o n
t o
S t a t e - a g e n t
i m m u n i t y
i s
37
1080368
a p p l i c a b l e .
The o n l y q u e s t i o n p r e s e n t e d
h e r e i s w h e t h e r t h e
" b e y o n d
a u t h o r i t y " e x c e p t i o n
i s a p p l i c a b l e .
A c c o r d i n g l y , I
r e s p e c t f u l l y d i s s e n t w i t h r e s p e c t t o t h e m a i n o p i n i o n ' s d e n i a l
o f t h e p e t i t i o n
f o r t h e w r i t
o f mandamus as i t r e l a t e s
t o
Watson and J a c k s o n ;
o t h e r w i s e
I c o n c u r .
38 | October 30, 2009 |
aea5e440-adc1-41ba-b20a-aa125d474eaa | David Barber, Emory Folmar, and Christopher Murphy v. Cornerstone Community Outreach, Inc., and Freedom Trail Ventures, Ltd. | N/A | 1080805 | Alabama | Alabama Supreme Court | REL: 11/13/09
Notice: T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e
advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e
r e q u e s t e d t o n o t i f y t h e
Reporter of
Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741 ((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may
be
made b e f o r e
t h e o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1080805
David Barber, Emory Folmar, and C h r i s t o p h e r Murphy
v.
Cornerstone Community Outreach, Inc.,
and Freedom T r a i l
Ventures,
L t d .
1080806
Governor Bob R i l e y
v.
Cornerstone Community Outreach, Inc.,
and Freedom T r a i l
Ventures,
L t d .
Appeals from Lowndes C i r c u i t Court
(CV-09-900019)
MURDOCK,
J u s t i c e .
On December 30, 2008, G o v e r n o r Bob R i l e y i s s u e d E x e c u t i v e
O r d e r No. 44 c r e a t i n g t h e G o v e r n o r ' s
T a s k
F o r c e on
I l l e g a l
G a m b l i n g
("the T a s k
F o r c e " ) .
The o r d e r
s t a t e d
t h a t t h e
p u r p o s e
o f t h e T a s k
F o r c e was
" p r o m o t i n g a n d s u p p o r t i n g
u n i f o r m s t a t e w i d e e n f o r c e m e n t o f
A l a b a m a ' s a n t i - g a m b l i n g l a w s
a n d t o c a r r y o u t t h e A l a b a m a
C o n s t i t u t i o n ' s
s t r o n g
p u b l i c
p o l i c y
a g a i n s t
l o t t e r y schemes a n d i l l e g a l
g a m b l i n g . "
The
o r d e r c r e a t e d a s p e c i a l p r o s e c u t o r t o s e r v e a s t h e commander
o f
t h e T a s k
F o r c e , who, i n t h a t
c a p a c i t y , i s empowered t o
"have
s t a t e w i d e
j u r i s d i c t i o n "
t o " c o n d u c t
i n v e s t i g a t i o n s ,
a t t e n d
a n y r e g u l a r ,
a d j o u r n e d o r s p e c i a l
s e s s i o n
o f a n y
c i r c u i t c o u r t ... f o r t h e i n v e s t i g a t i o n o f
o r t h e p r o s e c u t i o n
o f a n y c r i m i n a l c a s e o r
t h e
p r o s e c u t i o n o r d e f e n s e o f
a n y c a s e
r e l a t e d
t o g a m b l i n g
a c t i v i t y
i n t h e S t a t e
o f A l a b a m a . "
G o v e r n o r
R i l e y
a p p o i n t e d f o r m e r
J e f f e r s o n
C o u n t y
D i s t r i c t
A t t o r n e y D a v i d B a r b e r a s T a s k F o r c e commander.
C o r n e r s t o n e
C o m m u n i t y
O u t r e a c h ,
I n c . ( " C o r n e r s t o n e " ) ,
o b t a i n e d a l i c e n s e f r o m t h e Town o f W h i t e
H a l l i n L o w n d e s
C o u n t y t o o p e r a t e a b i n g o - g a m i n g
f a c i l i t y ,
w h i c h i s
known a s
2
1080805 a n d 1080806
t h e W h i t e H a l l E n t e r t a i n m e n t C e n t e r
("the E C " ) .
An LCD
s c r e e n
o u t s i d e t h e EC a d v e r t i s e s t h a t t h e EC o f f e r s "HOT
SLOTS!" f o r
i t s
c u s t o m e r s .
The
EC
c o n t a i n s s e v e r a l h u n d r e d
e l e c t r o n i c
g a m i n g m a c h i n e s t h a t a r e p l a y e d b y h u n d r e d s o f c u s t o m e r s
e v e r y
d a y .
C o r n e r s t o n e p u r p o r t e d l y o b t a i n e d i t s l i c e n s e so t h a t i t
c o u l d o p e r a t e c h a r i t y b i n g o games i n a c c o r d a n c e w i t h Amendment
No.
674, A l a . C o n s t .
1901
( L o c a l Amendments, Lowndes
C o u n t y ,
§ 3, A l a . C o n s t .
1901
( O f f . R e c o m p . ) ) .
P u r s u a n t
t o i t s m a n d a t e ,
t h e T a s k
F o r c e
on M a r c h
19,
2009,
e x e c u t e d
a s e a r c h w a r r a n t
on
t h e
EC
a n d
c o n f i s c a t e d
a p p r o x i m a t e l y 105 e l e c t r o n i c g a m i n g m a c h i n e s ,
1
t h e s e r v e r s t o
w h i c h t h o s e m a c h i n e s w e r e a t t a c h e d , o v e r $ 5 0 0 , 0 0 0 i n p r o c e e d s
f r o m t h e games p l a y e d a t t h e EC,
a n d v a r i o u s r e c o r d s k e p t
b y
C o r n e r s t o n e .
I n
t h e
e a r l y
a f t e r n o o n
on
M a r c h
19,
2009,
C o r n e r s t o n e
f i l e d
an
a c t i o n
i n t h e Lowndes
C i r c u i t
C o u r t
a g a i n s t G o v e r n o r
R i l e y , i n h i s o f f i c i a l
c a p a c i t y , B a r b e r , i n
h i s
o f f i c i a l c a p a c i t y as t h e T a s k F o r c e commander, and
c e r t a i n
o t h e r members o f t h e T a s k F o r c e i n t h e i r
o f f i c i a l
c a p a c i t i e s
1 A p p r o x i m a t e l y 850 e l e c t r o n i c g a m i n g m a c h i n e s r e m a i n e d a t
t h e EC f o l l o w i n g t h e e x e c u t i o n o f t h e s e a r c h w a r r a n t .
3
1080805 and
1080806
( c o l l e c t i v e l y
" t h e
R i l e y d e f e n d a n t s " ) .
2
C o r n e r s t o n e
s o u g h t ,
among o t h e r t h i n g s , a d e c l a r a t o r y j u d g m e n t a n d p r e l i m i n a r y
and
p e r m a n e n t
i n j u n c t i v e
r e l i e f
r e g a r d i n g
t h e
s e i z u r e
o f
t h e
e l e c t r o n i c g a m i n g m a c h i n e s by
t h e T a s k F o r c e .
S p e c i f i c a l l y ,
C o r n e r s t o n e
r e q u e s t e d
a j u d g m e n t
d e c l a r i n g
t h a t
i t s b i n g o
o p e r a t i o n
a t t h e EC i s p e r m i t t e d u n d e r Amendment No.
674,
A l a .
C o n s t .
1 9 0 1 ,
3
and
w h e t h e r
t h e
e l e c t r o n i c g a m i n g
m a c h i n e s
s e i z e d by
t h e T a s k F o r c e
c o n s t i t u t e
i l l e g a l
" s l o t
m a c h i n e s "
u n d e r § 1 3 A - 1 2 - 2 7 , A l a . Code 1975.
C o r n e r s t o n e r e q u e s t e d
a
p r e l i m i n a r y
i n j u n c t i o n r e s t r a i n i n g t h e
T a s k F o r c e
f r o m
any
f u r t h e r i n t e r f e r e n c e w i t h
i t s o p e r a t i o n
a t t h e EC
d u r i n g
t h e
p e n d e n c y o f t h i s a c t i o n and d i r e c t i n g t h e T a s k F o r c e t o
r e t u r n
a l l
t h e
s e i z e d m a c h i n e s ,
s e r v e r s ,
and
r e c o r d s
b a s e d
on
i t s
b e l i e f t h a t t h e m a c h i n e s a r e
l e g a l u n d e r A l a b a m a
l a w .
F r e e d o m T r a i l V e n t u r e s , L t d .
("FTV"), s u b s e q u e n t l y
f i l e d
a m o t i o n t o i n t e r v e n e
i n t h e a c t i o n , a l l e g i n g t h a t i t owned a t
2 T h e o t h e r d e f e n d a n t s a r e Emory F o l m a r , as
a d m i n i s t r a t o r
o f t h e A l a b a m a B e v e r a g e C o n t r o l B o a r d , and C o l o n e l
C h r i s t o p h e r
M u r p h y , as d i r e c t o r o f t h e D e p a r t m e n t o f P u b l i c
S a f e t y .
3Amendment No.
674
p r o v i d e s ,
i n p e r t i n e n t
p a r t :
"The
o p e r a t i o n
o f
b i n g o games
f o r
p r i z e s
o r money by
n o n p r o f i t
o r g a n i z a t i o n s
f o r
c h a r i t a b l e ,
e d u c a t i o n a l
o r
o t h e r
l a w f u l
p u r p o s e s s h a l l be
l e g a l i n t h e Town o f W h i t e H a l l
"
4
1080805 a n d 1080806
l e a s t some o f t h e m a c h i n e s s e i z e d b y t h e T a s k F o r c e a n d t h a t
i t h a d l e a s e d t h o s e m a c h i n e s t o C o r n e r s t o n e .
The t r i a l
c o u r t
g r a n t e d FTV's m o t i o n f o r
t h e l i m i t e d p u r p o s e o f a l l o w i n g i t
t o
p a r t i c i p a t e
i n t h e
p r e l i m i n a r y - i n j u n c t i o n
p h a s e
o f t h e
p r o c e e d i n g .
S h o r t l y
a f t e r t h e s e i z u r e o f p r o p e r t y a t t h e EC, t h e
t r i a l c o u r t h e l d a c o n f e r e n c e c a l l w i t h t h e p a r t i e s ' a t t o r n e y s
t o
s c h e d u l e
a
h e a r i n g
on t h e m o t i o n
f o r a
p r e l i m i n a r y
i n j u n c t i o n .
B e c a u s e
t h e
T a s k
F o r c e ' s
a c t i o n
c a u s e d
C o r n e r s t o n e t o s h u t down i t s o p e r a t i o n a t t h e EC, C o r n e r s t o n e
r e q u e s t e d t h a t t h e h e a r i n g be h e l d i m m e d i a t e l y .
On b e h a l f o f
t h e T a s k F o r c e a n d G o v e r n o r
R i l e y , B a r b e r r e q u e s t e d t h a t t h e
d e f e n d a n t s
be
g i v e n
a week t o p r e p a r e
f o r t h e h e a r i n g .
C o r n e r s t o n e s t a t e d t h a t i t
w o u l d a g r e e t o B a r b e r ' s t i m e t a b l e
i f ,
i n t h e m e a n t i m e , i t
w o u l d be p e r m i t t e d t o c o n t i n u e
i t s
o p e r a t i o n s a t t h e
EC w i t h o u t t h e t h r e a t o f a n o t h e r r a i d b y t h e
T a s k F o r c e d u r i n g t h e p e n d e n c y o f t h i s a c t i o n .
The T a s k F o r c e
r e f u s e d t o a g r e e t h a t i t w o u l d r e f r a i n f r o m r e - r a i d i n g t h e EC,
a n d t h u s t h e t r i a l
c o u r t s e t t h e h e a r i n g f o r
two d a y s
a f t e r
t h e c o n f e r e n c e
c a l l .
5
1080805 a n d 1080806
D u r i n g
a
t w o - d a y
p r e l i m i n a r y - i n j u n c t i o n
h e a r i n g , t h e
t r i a l c o u r t h e a r d t e s t i m o n y f r o m t h e
members o f t h e T a s k F o r c e
who h a d e x e c u t e d t h e s e a r c h w a r r a n t ,
f r o m t h e T a s k
F o r c e ' s
s l o t - m a c h i n e
e x p e r t ,
D a r y l
R o b e r t
S e r t e l l ,
a n d
f r o m
C o r n e r s t o n e
a n d F T V ' s
g a m b l i n g
e x p e r t ,
J o s e p h
V a l a n d r a .
F o l l o w i n g
t h e h e a r i n g , t h e
t r i a l
c o u r t
e n t e r e d an
o r d e r
g r a n t i n g
C o r n e r s t o n e
a n d F T V ' s
r e q u e s t
f o r a
p r e l i m i n a r y
i n j u n c t i o n ,
o r d e r i n g t h e R i l e y
d e f e n d a n t s
t o
r e t u r n a l l
p r o p e r t y s e i z e d d u r i n g t h e M a r c h 19, 2009, r a i d , a n d o r d e r i n g
them t o r e f r a i n f r o m i n t e r f e r i n g w i t h C o r n e r s t o n e ' s o p e r a t i o n
a t t h e EC d u r i n g t h e p e n d e n c y o f t h i s
a c t i o n .
On M a r c h 30, 2009, G o v e r n o r R i l e y
( c a s e no. 1080806) a n d
t h e members o f t h e T a s k F o r c e
( c a s e no. 1080805) a p p e a l e d t h e
t r i a l
c o u r t ' s i s s u a n c e o f t h e p r e l i m i n a r y
i n j u n c t i o n .
I n
a d d i t i o n ,
t h e y r e q u e s t e d , a n d on A p r i l 17, 2009,
t h i s
C o u r t
g r a n t e d , a s t a y o f t h e p r e l i m i n a r y
i n j u n c t i o n p e n d i n g
t h i s
C o u r t ' s d e t e r m i n a t i o n o f t h e s e a p p e a l s .
On
A p r i l 2 1 , 2009, t h e T a s k F o r c e
i n s t i t u t e d a
c i v i l -
f o r f e i t u r e
p r o c e e d i n g i n t h e L o w n d e s
C i r c u i t
C o u r t
s e e k i n g
f o r f e i t u r e o f a l l
i t e m s s e i z e d d u r i n g t h e M a r c h 19, 2009,
r a i d
on t h e EC.
6
1080805 a n d 1080806
On
May
26,
2009,
t h e
R i l e y
d e f e n d a n t s
f i l e d
t h e i r
a p p e l l a n t s ' b r i e f on t h e m e r i t s o f t h e i r a p p e a l s o f t h e
t r i a l
c o u r t ' s p r e l i m i n a r y i n j u n c t i o n .
On May
29, 2009,
C o r n e r s t o n e
a n d FTV
f i l e d
i n b o t h a p p e a l s
a m o t i o n
a s k i n g t h i s C o u r t
t o
d i s s o l v e
t h e
p r e l i m i n a r y
i n j u n c t i o n
a n d
t o
d i s m i s s
t h e
a p p e a l s .
4
I n
t h e
m o t i o n s
t o
d i s m i s s , C o r n e r s t o n e
a n d
FTV
4 T h e
m o t i o n s
t o
d i s m i s s
r e f e r r e d
t o
i n
t h e
t e x t
a r e
a c t u a l l y t h e s e c o n d s u c h m o t i o n s f i l e d by C o r n e r s t o n e a n d
FTV.
C o r n e r s t o n e
a n d FTV a l s o f i l e d m o t i o n s t o d i s m i s s t h e
a p p e a l s
on
t h e
g r o u n d
t h a t
t h e
R i l e y
d e f e n d a n t s
do
n o t
h a v e
t h e
a u t h o r i t y t o a p p e a r b e f o r e
t h i s C o u r t i n an a p p e a l on
b e h a l f
o f
t h e
S t a t e .
C o r n e r s t o n e
a n d
FTV
a r g u e
t h a t
o n l y
t h e
a t t o r n e y g e n e r a l
i s a u t h o r i z e d t o a p p e a l
t h e
t r i a l
c o u r t ' s
r u l i n g .
I n a d d i t i o n , A t t o r n e y G e n e r a l
T r o y K i n g
r e q u e s t e d ,
a n d was
g r a n t e d p e r m i s s i o n , t o
f i l e an a m i c u s b r i e f .
I n h i s
b r i e f ,
A t t o r n e y G e n e r a l K i n g " t a k e s no
i s s u e w i t h " G o v e r n o r
R i l e y ' s
h i r i n g
h i s
own
l e g a l
c o u n s e l
o r
a p p e a r i n g
i n
l i t i g a t i o n
i n v o l v i n g
t h e S t a t e , b u t
he
u r g e s
t h i s
C o u r t
t o
" r e j e c t
t h e G o v e r n o r ' s a r g u m e n t t h a t he
i s v e s t e d w i t h
t h e
a u t h o r i t y t o a p p o i n t a t t o r n e y s who
may name and a d v a n c e
t h e
S t a t e ' s
l e g a l
p o s i t i o n
o u t s i d e t h e
d i r e c t i o n a n d
c o n t r o l
o f
t h e A t t o r n e y G e n e r a l . "
See A l a . Code 1975,
§ 36-15-21 ( " A l l
l i t i g a t i o n
c o n c e r n i n g
t h e
i n t e r e s t
o f
t h e
s t a t e ,
o r
any
d e p a r t m e n t
o f
t h e
s t a t e ,
s h a l l
be
u n d e r
t h e
d i r e c t i o n
a n d
c o n t r o l o f t h e A t t o r n e y G e n e r a l . " ) .
We
n o t e t h a t a q u e s t i o n a l s o e x i s t s as t o
C o r n e r s t o n e ' s
a n d FTV's s t a n d i n g t o s e e k a d i s m i s s a l o f t h e a p p e a l s b a s e d on
t h e i r
c o n t e n t i o n as
t o t h e
r e l a t i v e
f i e l d s
o f
a u t h o r i t y
o f
A t t o r n e y G e n e r a l
K i n g a n d
t h e
R i l e y
d e f e n d a n t s .
I t i s
n o t
n e c e s s a r y
f o r u s t o r e s o l v e t h i s i s s u e o f s t a n d i n g , h o w e v e r ,
n o r t h e q u e s t i o n s r a i s e d by A t t o r n e y G e n e r a l K i n g , i n l i g h t o f
t h e
f a c t
t h a t G o v e r n o r
R i l e y
i s a p a r t y t o
t h i s
c a s e ,
s e e
Ex
p a r t e
Weaver,
570
So.
2d
675,
684
( A l a .
1990)
("We
g n i z e t h a t t h e r e may
be t i m e s when t h e G o v e r n o r d i s a g r e e s
Ex
r e c o g n i z e
7
1080805 a n d
1080806
a l l e g e d t h a t t h e T a s k F o r c e ' s
f i l i n g
o f t h e
c i v i l - f o r f e i t u r e
a c t i o n ,
a l o n g
w i t h
t h e
f a c t
t h a t
t h e
T a s k
F o r c e
h a d
n o t
f u r t h e r
i n t e r f e r e d w i t h
C o r n e r s t o n e ' s
o p e r a t i o n
a t
t h e
EC,
r e n d e r e d
t h e
p r e l i m i n a r y
i n j u n c t i o n u n n e c e s s a r y
a n d
t h e
a p p e a l s
moot.
The
R i l e y d e f e n d a n t s
f i l e d
a
r e s p o n s e
i n
o p p o s i t i o n t o t h e m o t i o n s t o d i s m i s s t h e a p p e a l s ,
c o n t e n d i n g
t h a t
t h e
c i v i l - f o r f e i t u r e
a c t i o n d o e s n o t moot t h e
i n s t a n t
a p p e a l s
a n d u r g i n g t h e C o u r t t o d e c i d e t h e i s s u e s p r e s e n t e d
by
t h e
t r i a l
c o u r t ' s
i s s u a n c e
o f
t h e
p r e l i m i n a r y i n j u n c t i o n .
S i n c e
t h e s e
f i l i n g s ,
C o r n e r s t o n e
a n d
FTV
h a v e
f i l e d
t h e i r
w i t h
t h e
a t t o r n e y
g e n e r a l
a b o u t
m a t t e r s
i n
l i t i g a t i o n .
A l t h o u g h
we d e t e r m i n e t h a t t h e a t t o r n e y g e n e r a l i s a u t h o r i z e d
t o d i r e c t t h e c o u r s e o f a l l l i t i g a t i o n i n v o l v i n g t h e S t a t e
a n d
i t s
a g e n c i e s ,
t h e
G o v e r n o r ,
as
' c h i e f m a g i s t r a t e '
o f
t h e
S t a t e ,
may
i n t e r v e n e
i n
any
s u c h
l i t i g a t i o n .
...
As
an
i n t e r v e n o r ,
t h e
G o v e r n o r
may
e x p r e s s
h i s
v i e w s
a n d
t a k e
p o s i t i o n s c o n t r a r y t o t h o s e
a r g u e d by t h e a t t o r n e y
g e n e r a l . "
( f o o t n o t e o m i t t e d ) ) , t h a t a j u d g m e n t h a d b e e n e n t e r e d
a g a i n s t
h i m ,
a n d t h a t he has d u l y
f i l e d an a p p e a l
f r o m t h a t j u d g m e n t .
We
a l s o n o t e
t h a t
t h e
r e c o r d
and
b r i e f s
do
n o t
c o n t a i n
o r
r e f l e c t
an
e f f o r t
by
A t t o r n e y
G e n e r a l
K i n g
t o
i n s t r u c t
t h e
R i l e y d e f e n d a n t s n o t t o a p p e a l f r o m t h e
t r i a l c o u r t ' s j u d g m e n t
a g a i n s t them, a n d he
s p e c i f i c a l l y d o e s n o t " s e e k t o
i n t e r v e n e
as a p a r t y " i n t h i s c a s e a n d d o e s n o t
" t a k e a p o s i t i o n on
t h e
m e r i t s
o f t h i s
a p p e a l . "
G i v e n G o v e r n o r
R i l e y ' s a p p e a l
o f
t h e j u d g m e n t
e n t e r e d
a g a i n s t h i m ,
a n d
i n l i g h t
o f t h e
n a t u r e
o f A t t o r n e y
G e n e r a l
K i n g ' s p o s i t i o n , we n e e d n o t a d d r e s s f u r t h e r t h e i s s u e s r a i s e d
by C o r n e r s t o n e a n d
FTV
i n t h e i r
f i r s t m o t i o n s t o
d i s m i s s .
8
1080805 a n d 1080806
a p p e l l e e s ' b r i e f r e g a r d i n g t h e
m e r i t s o f t h e
a p p e a l s f r o m t h e
p r e l i m i n a r y
i n j u n c t i o n , a n d t h e R i l e y d e f e n d a n t s h a v e
f i l e d
t h e i r r e p l y
b r i e f .
M o o t n e s s
We
f i r s t
c o n s i d e r w h e t h e r t h e m a t t e r b e f o r e us i s moot.
I t
h a s b e e n
h e l d
t h a t
" ' a c a s e
i s moot when t h e i s s u e s
p r e s e n t e d a r e
no l o n g e r
" l i v e " o r t h e p a r t i e s l a c k a
l e g a l l y
c o g n i z a b l e
i n t e r e s t i n
t h e o u t c o m e . ' "
C o u n t y o f L o s A n g e l e s
v.
D a v i s ,
440 U.S.
625, 631
(19
7
9 ) ( q u o t i n g
P o w e l l
v .
McCormack, 395 U.S. 48 6,
4
96
( 1 9 6 9 ) ) .
E x p a n d i n g
on
t h i s
d e f i n i t i o n ,
t h i s C o u r t h a s s a i d
t h a t
" ' [ t ] h e
t e s t
f o r m o o t n e s s i s commonly
s t a t e d as
w h e t h e r
t h e c o u r t ' s
a c t i o n on t h e m e r i t s
w o u l d
a f f e c t t h e r i g h t s o f t h e p a r t i e s . '
C r a w f o r d v .
S t a t e , 153 S.W.3d 497,
501 (Tex. App. 2004)
( c i t i n g
VE C o r p . v . E r n s t & Young, 860 S.W.2d 83, 84
( T e x .
1 9 9 3 ) ) .
'A c a s e becomes moot i f
a t a n y s t a g e
t h e r e
c e a s e s
t o be an
a c t u a l
c o n t r o v e r s y
b e t w e e n t h e
p a r t i e s . '
I d . ...
( c i t i n g
N a t i o n a l
C o l l e g i a t e
A t h l e t i c
A s s ' n
v . J o n e s ,
1 S.W.3d 83, 86 ( T e x .
19 9
9 ) ) . "
Chapman v . Gooden, 974 So. 2d 972, 983 ( A l a . 2007)
( e m p h a s i s
o m i t t e d ; e m p h a s i s
a d d e d ) .
5
"The
c e n t r a l
i s s u e
i n
a n y
m o o t n e s s
c h a l l e n g e
i s
w h e t h e r
c h a n g e s
i n t h e
c i r c u m s t a n c e s
e x i s t i n g when t h e a c t i o n was
f i l e d
have
f o r e s t a l l e d
a n y
m e a n i n g f u l
r e l i e f :
' ( T ) h e q u e s t i o n i s
n o t w h e t h e r t h e
9
1080805 a n d
1080806
When
one
p a r t y
s u e s
a n o t h e r
i n
an
e f f o r t
t o
o b t a i n
d e c l a r a t o r y
o r
i n j u n c t i v e
r e l i e f
c o n t e n d i n g
t h a t
t h e
o t h e r
p a r t y ' s
c o n d u c t
i s
w r o n g f u l ,
a
s h o w i n g
o f
" v o l u n t a r y
c e s s a t i o n "
o f
t h e
c h a l l e n g e d
c o n d u c t
c a n
moot
t h e
a c t i o n .
D e m o n s t r a t i n g t h a t t h e
a c t i o n s h o u l d be deemed moot on
t h i s
b a s i s , h o w e v e r , i s n o t
an e a s y b u r d e n .
" V o l u n t a r y
c e s s a t i o n o f c h a l l e n g e d c o n d u c t moots
a
c a s e
.
..
o n l y
i f i t i s ' a b s o l u t e l y c l e a r
t h a t
t h e
a l l e g e d l y w r o n g f u l
b e h a v i o r
c o u l d n o t r e a s o n a b l y
be
e x p e c t e d
t o r e c u r . '
U n i t e d S t a t e s v.
C o n c e n t r a t e d
P h o s p h a t e
E x p o r t
A s s n . ,
I n c . ,
393
U.S.
199,
203
(1968) ( e m p h a s i s a d d e d ) .
And
t h e
'"heavy b u r d e n
o f
p e r s u a [ d i n g ] " t h e c o u r t t h a t t h e c h a l l e n g e d
c o n d u c t
c a n n o t r e a s o n a b l y be e x p e c t e d
t o s t a r t up a g a i n
l i e s
w i t h
t h e
p a r t y
a s s e r t i n g m o o t n e s s . '
F r i e n d s
o f
E a r t h ,
[ I n c . v. L a i d l a w E n v t l .
S e r v s .
(TOC),
I n c . , ]
528
U.S.
167,
189
(2000)
( e m p h a s i s a d d e d ) . "
A d a r a n d
C o n s t r u c t o r s ,
I n c .
v.
S l a t e r ,
528
U.S.
216,
222
( 2 0 0 0 ) .
As t h e U n i t e d S t a t e s Supreme C o u r t
s t a t e d e a r l i e r i n
U n i t e d S t a t e s v. W.T.
G r a n t Co.,
345
U.S.
629,
633
( 1 9 5 3 ) ,
a
p r e c i s e
r e l i e f
s o u g h t
a t
t h e
t i m e
t h e
a p p l i c a t i o n f o r an i n j u n c t i o n was
f i l e d i s
s t i l l
a v a i l a b l e .
The
q u e s t i o n
i s w h e t h e r
t h e r e c a n be any
e f f e c t i v e
r e l i e f . '
[West
v. S e c r e t a r y o f D e p t . o f T r a n s p .
( 9 t h C i r .
2000) 206
F.
3d
920,
925
( e m p h a s i s a d d e d ;
i n t e r n a l q u o t e s o m i t t e d ) ] . "
W i l l i a m
S c h w a r z e r ,
A.
W a l l a c e
T a s h i m a ,
James
W a g s t a f f e ,
P r a c t i c e
G u i d e :
F e d e r a l
C i v i l
P r o c e d u r e
B e f o r e
T r i a l ,
N a t i o n a l E d i t i o n ,
" M o o t n e s s " L i m i t a t i o n ,
CH.
2E-3.
10
1080805 a n d
1080806
" c a s e
may
n e v e r t h e l e s s
be
moot
i f
t h e
d e f e n d a n t
can
d e m o n s t r a t e t h a t ' t h e r e i s no r e a s o n a b l e
e x p e c t a t i o n t h a t
t h e
w r o n g
w i l l
be
r e p e a t e d . ' "
( e m p h a s i s a d d e d ;
q u o t i n g
U n i t e d
S t a t e s v. A l u m i n u m Co.
o f A m e r i c a , 148
F.2d
416,
448
(2d C i r .
1 9 4 5 ) ) .
The
f a c t s
o f
t h i s
c a s e
a r e
n o t
t h o s e
o f
t h e
o r d i n a r y
v o l u n t a r y - c e s s a t i o n
s i t u a t i o n
b e c a u s e
h e r e
t h e
p a r t y
v o l u n t e e r i n g
t o c e a s e some
a c t i v i t y
i s n o t
t h e
p a r t y whose
a c t i v i t y
i s c h a l l e n g e d
i n t h e
u n d e r l y i n g
a c t i o n .
I n
o t h e r
w o r d s ,
i n t h e
o r d i n a r y v o l u n t a r y - c e s s a t i o n
s i t u a t i o n ,
i t i s
t h e
a c t i v i t y
c h a l l e n g e d
i n t h e u n d e r l y i n g a c t i o n t h a t a p a r t y
v o l u n t e e r s
t o c e a s e , t h e r e b y m a k i n g t h e c a s e moot.
H e r e ,
t h e
a c t i v i t y
c h a l l e n g e d
i n t h e
u n d e r l y i n g
a c t i o n i s t h e
s e i z u r e
and
r e t e n t i o n o f
t h e
e l e c t r o n i c g a m i n g m a c h i n e s and
r e l a t e d
p r o p e r t y by t h e T a s k F o r c e , as w e l l as t h e p r o s p e c t
o f f u r t h e r
i n t e r f e r e n c e by
t h e T a s k F o r c e w i t h t h e o p e r a t i o n
o f t h e
EC.
C o r n e r s t o n e
and
FTV
a s k e d
f o r
and
o b t a i n e d
a
p r e l i m i n a r y
i n j u n c t i o n
a g a i n s t
t h i s
a c t i v i t y .
The
T a s k
F o r c e
i s
n o t
a g r e e i n g
t o c e a s e any
a c t i v i t y .
The
q u e s t i o n
t h e n
becomes
w h e t h e r
C o r n e r s t o n e ' s
w i l l i n g n e s s t o c e a s e c e r t a i n o f i t s a c t i v i t i e s makes a p p e l l a t e
11
1080805 a n d 1080806
r e v i e w
o f
t h e
p r e l i m i n a r y
i n j u n c t i o n
e n t e r e d by
t h e
t r i a l
c o u r t moot.
I n one
s e n s e ,
C o r n e r s t o n e
and
FTV
h a v e
a g r e e d
v o l u n t a r i l y
t o
c e a s e
any
e f f o r t
t o
p o s s e s s
and
u s e
t h e
p a r t i c u l a r m a c h i n e s s e i z e d by t h e T a s k F o r c e p e n d i n g a
t r i a l
on t h e
m e r i t s .
E v e n a s s u m i n g
f o r p r e s e n t p u r p o s e s
t h a t C o r n e r s t o n e
and
FTV's
e x p r e s s e d
w i l l i n g n e s s
t o
v o l u n t a r i l y
r e l i n q u i s h
t h e
p o s s e s s i o n and c e a s e t h e u s e o f t h e m a c h i n e s i n q u e s t i o n w o u l d
o t h e r w i s e
p r o v i d e
s u p p o r t
f o r a
f i n d i n g
o f m o o t n e s s ,
s u c h
w i l l i n g n e s s
i s n o t a d e q u a t e
f o r t h a t p u r p o s e
i n t h e
p r e s e n t
c a s e .
As
n o t e d ,
v o l u n t a r y c e s s a t i o n
o f c h a l l e n g e d
c o n d u c t
moots
a
c a s e
o n l y
i f i t i s
" ' a b s o l u t e l y
c l e a r
t h a t
t h e
a l l e g e d l y w r o n g f u l b e h a v i o r c o u l d n o t r e a s o n a b l y be
e x p e c t e d
t o
r e c u r . ' "
A d a r a n d
C o n s t r u c t o r s , 528
U.S.
a t 222
( q u o t i n g
U n i t e d S t a t e s v. C o n c e n t r a t e d P h o s p h a t e E x p o r t A s s ' n , 393
U.S.
199,
203
( 1 9 6 8 ) ) .
As
t h e
U n i t e d
S t a t e s
Supreme
C o u r t
e x p l a i n e d
i n W.T.
G r a n t
Co. , 345
U.S.
a t 633,
t h e m o v a n t ' s
b u r d e n
o f p e r s u a d i n g t h e c o u r t t h a t
t h i s s t a n d a r d i s met " i s
a h e a v y one."
See
a l s o C o n c e n t r a t e d P h o s p h a t e
E x p o r t
A s s ' n ,
393
U.S.
a t
203
( s t a t i n g
t h a t
" [ t ] h e
t e s t
f o r m o o t n e s s
i n
c a s e s s u c h as t h i s i s a s t r i n g e n t
o n e " ) .
12
1080805 a n d 1080806
We
c a n n o t
c o n c l u d e
t h a t
C o r n e r s t o n e
and
FTV
h a v e
met
t h e i r " h e a v y b u r d e n "
o f s h o w i n g
t h a t i t i s " a b s o l u t e l y
c l e a r
t h a t
t h e
a l l e g e d
w r o n g f u l b e h a v i o r c o u l d n o t
r e a s o n a b l y
be
e x p e c t e d
t o r e c u r . "
F i r s t ,
o n l y a s m a l l p e r c e n t a g e
o f
t h e
m a c h i n e s
a t
t h e
EC
were
s e i z e d ;
e x c e p t
f o r
a
b r i e f
i n t e r r u p t i o n
a f t e r
t h e
r a i d
o f
t h e
EC,
C o r n e r s t o n e
n e v e r
c e a s e d o p e r a t i o n o f t h e EC -- and c o n t i n u e s t o o p e r a t e t h e
EC
--
u s i n g
t h e
r e m a i n d e r
o f
i t s m a c h i n e s .
F u r t h e r m o r e ,
C o r n e r s t o n e
i t s e l f has a d v i s e d t h i s C o u r t t h a t i t has a l r e a d y
o b t a i n e d m a c h i n e s t o r e p l a c e t h o s e t h a t were s e i z e d and
s i n c e
J u n e has
e n g a g e d i n t h e a c t s o f p o s s e s s i n g and
u s i n g
t h o s e
m a c h i n e s
i n t h e
same manner
i n w h i c h
i t u s e d
t h e
s e i z e d
m a c h i n e s .
A
l i m i t a t i o n
o f t h e
i n q u i r y t o o n l y t h e m a c h i n e s
s e i z e d by t h e T a s k F o r c e , t o t h e e x c l u s i o n o f m a c h i n e s
t h a t
r e m a i n
i n t h e p o s s e s s i o n and u s e o f C o r n e r s t o n e and,
i n d e e d ,
a d d i t i o n a l m a c h i n e s t h a t h a v e b e e n
s p e c i f i c a l l y p r o c u r e d
by
C o r n e r s t o n e f o r t h e p u r p o s e o f r e p l a c i n g t h e s e i z e d
m a c h i n e s ,
w o u l d
be
t o
r e a d
t h e
a b o v e - q u o t e d
p r i n c i p l e
f r o m
A d a r a n d
C o n s t r u c t o r s more n a r r o w l y t h a n i s a p p r o p r i a t e f o r p u r p o s e s
o f
i n f o r m i n g a d e c i s i o n as t o m o o t n e s s and, i n t u r n , t h i s C o u r t ' s
j u r i s d i c t i o n t o d e c i d e an a p p e a l .
13
1080805 a n d 1080806
We
a l s o c o n s i d e r
w h e t h e r t h e a p p e a l s o f t h e p r e l i m i n a r y
i n j u n c t i o n a r e o r c o u l d be made moot i f t h i s
C o u r t were t o
remand t h e c a s e i n o r d e r
t o a l l o w
f o r a r e s c i s s i o n by t h e
t r i a l
c o u r t o f t h e p r e l i m i n a r y
i n j u n c t i o n .
A t b o t t o m , what
w o u l d
t h e n
be
a t
i s s u e
w o u l d
n o t
be
an
a g r e e m e n t
b y
C o r n e r s t o n e and FTV t o r e l i n q u i s h t h e i r r i g h t t o engage i n any
p a r t i c u l a r c o n d u c t , b u t r a t h e r an a c q u i e s c e n c e by C o r n e r s t o n e
and
FTV i n h a v i n g t h e t r i a l
c o u r t
r e s c i n d an o r d e r
f a v o r i n g
them.
We a r e aware o f no c a s e s i n w h i c h a w i l l i n g n e s s by a
p r e v a i l i n g p a r t y i n t h e t r i a l
c o u r t t o h a v e t h e c a s e
r e t u r n e d
t o t h e t r i a l c o u r t f o r p u r p o s e s o f t h e r e s c i s s i o n o f t h e o r d e r
f a v o r i n g
i t moots t h e p r o c e e d i n g
i n t h e a p p e l l a t e
c o u r t .
A l t h o u g h
t h e
p r e s e n t
c a s e
c o n c e r n s
a
p r e l i m i n a r y
i n j u n c t i o n ,
i t s p o s t u r e i s s i m i l a r i n m a t e r i a l
r e s p e c t s
t o
t h a t o f C i t y o f E r i e v. Pap's A.M.,
529 U.S. 277 ( 2 0 0 0 ) .
E r i e
c o n c e r n e d t h e owner o f a n u d e - d a n c i n g e s t a b l i s h m e n t
i n E r i e ,
P e n n s y l v a n i a .
The
c i t y
p a s s e d
an
o r d i n a n c e
m a k i n g i t an
o f f e n s e
t o k n o w i n g l y o r i n t e n t i o n a l l y a p p e a r i n p u b l i c i n a
" s t a t e o f n u d i t y . "
Pap's A.M.
o p e r a t e d " K a n d y l a n d , " an E r i e
e s t a b l i s h m e n t
t h a t v i o l a t e d t h i s o r d i n a n c e .
I t s u e d E r i e and
t h e c i t y o f f i c i a l s , s e e k i n g
d e c l a r a t o r y r e l i e f and a p e r m a n e n t
14
1080805 a n d 1080806
i n j u n c t i o n a g a i n s t t h e e n f o r c e m e n t o f t h e o r d i n a n c e .
The
c a s e
e v e n t u a l l y
was
a p p e a l e d
t o
t h e
P e n n s y l v a n i a Supreme
C o u r t ,
w h i c h
s t r u c k down t h e o r d i n a n c e
as
v i o l a t i n g Pap's
r i g h t
t o
f r e e d o m o f e x p r e s s i o n as p r o t e c t e d by t h e F i r s t and
F o u r t e e n t h
Amendments
t o
t h e
U n i t e d
S t a t e s
C o n s t i t u t i o n .
The
U n i t e d
S t a t e s Supreme C o u r t
g r a n t e d
c e r t i o r a r i
r e v i e w .
Pap's
t h e n
f i l e d
a m o t i o n
t o d i s m i s s t h e c a s e ,
a l o n g w i t h an
a f f i d a v i t
s t a t i n g
t h a t
i t had
" c e a s e d
t o
o p e r a t e
a
nude
d a n c i n g
e s t a b l i s h m e n t
i n
E r i e . "
Pap's
a r g u e d
t h a t
t h e
c a s e
was
t h e r e f o r e moot b e c a u s e " [ t ] h e outcome o f t h i s c a s e
w i l l
h a v e
no
e f f e c t upon
[ P a p ' s ] . "
The
U n i t e d S t a t e s Supreme C o u r t c o n c l u d e d t h a t " t h e
c a s e
i s n o t moot" and p r o c e e d e d
t o t h e m e r i t s .
529
U.S.
a t
289.
On
t h e q u e s t i o n o f m o o t n e s s , t h e C o u r t r e a s o n e d
as
f o l l o w s :
" S i m p l y
c l o s i n g
K a n d y l a n d
i s
n o t
s u f f i c i e n t
t o
r e n d e r
t h i s
c a s e
moot,
h o w e v e r .
Pap's
i s
s t i l l
i n c o r p o r a t e d u n d e r
P e n n s y l v a n i a
l a w ,
and
i t c o u l d
a g a i n d e c i d e t o o p e r a t e a nude d a n c i n g
e s t a b l i s h m e n t
i n
E r i e .
...
M o r e o v e r ,
o u r
a p p r a i s a l
o f
Pap's
a f f i d a v i t
i s i n f l u e n c e d by
Pap's
f a i l u r e ,
d e s p i t e
i t s o b l i g a t i o n t o t h e C o u r t , t o m e n t i o n a w o r d a b o u t
t h e
p o t e n t i a l
m o o t n e s s
i s s u e
i n
i t s
b r i e f
i n
o p p o s i t i o n t o t h e
p e t i t i o n
f o r w r i t
o f
c e r t i o r a r i ,
w h i c h
was
f i l e d
i n
A p r i l
1999,
e v e n
t h o u g h ,
as
J u s t i c e
S c a l i a p o i n t s o u t , K a n d y l a n d
was
c l o s e d
and
t h a t p r o p e r t y s o l d i n 1998.
P a p ' s o n l y r a i s e d
t h e
i s s u e
a f t e r
t h i s C o u r t g r a n t e d
c e r t i o r a r i .
15
1080805 a n d
1080806
" I n
any
e v e n t ,
t h i s
i s n o t
a r u n
o f
t h e
m i l l
v o l u n t a r y c e s s a t i o n c a s e .
Here i t i s t h e
p l a i n t i f f
who,
h a v i n g
p r e v a i l e d b e l o w , now
s e e k s t o h a v e
t h e
c a s e d e c l a r e d moot.
And
i t i s t h e c i t y o f E r i e
t h a t
s e e k s t o i n v o k e t h e f e d e r a l j u d i c i a l power t o o b t a i n
t h i s
C o u r t ' s
r e v i e w
o f
t h e
P e n n s y l v a n i a
Supreme
C o u r t
d e c i s i o n .
The
c i t y
has
an
o n g o i n g
i n j u r y
b e c a u s e
i t
i s
b a r r e d
f r o m
e n f o r c i n g
t h e
p u b l i c
n u d i t y
p r o v i s i o n s
o f
i t s
o r d i n a n c e .
I f
t h e
c h a l l e n g e d
o r d i n a n c e
i s f o u n d
c o n s t i t u t i o n a l ,
t h e n
E r i e
c a n
e n f o r c e
i t , and
t h e
a v a i l a b i l i t y
o f
s u c h
r e l i e f
i s s u f f i c i e n t t o p r e v e n t
t h e c a s e f r o m
b e i n g
moot.
And
Pap's
s t i l l
has
a c o n c r e t e
s t a k e
i n t h e
outcome o f
t h i s
c a s e
b e c a u s e ,
t o t h e
e x t e n t
Pap's
has
an
i n t e r e s t
i n r e s u m i n g
o p e r a t i o n s ,
i t has
an
i n t e r e s t
i n
p r e s e r v i n g
t h e
j u d g m e n t
o f
t h e
P e n n s y l v a n i a
Supreme
C o u r t .
Our
i n t e r e s t
i n
p r e v e n t i n g
l i t i g a n t s
f r o m a t t e m p t i n g
t o
m a n i p u l a t e
t h e
C o u r t ' s
j u r i s d i c t i o n
t o
i n s u l a t e
a
f a v o r a b l e
d e c i s i o n
f r o m
r e v i e w
f u r t h e r
c o u n s e l s
a g a i n s t
a
f i n d i n g o f m o o t n e s s
h e r e . "
529
U.S.
a t 288-89
( c i t a t i o n s
o m i t t e d ) .
U n l i k e t h e
s i t u a t i o n i n E r i e , i f C o r n e r s t o n e
and FTV
a r e
s u c c e s s f u l i n h a v i n g
t h e p r e l i m i n a r y i n j u n c t i o n r e s c i n d e d
by
t h e
t r i a l c o u r t , t h e r e w i l l be no
t r i a l c o u r t o r d e r t h a t w o u l d
c o n t i n u e
t o
r e s t r i c t
t h e
a c t i o n s
o f
t h e
T a s k
F o r c e .
N o n e t h e l e s s ,
t h e
R i l e y
d e f e n d a n t s
a r g u e
t h a t
t h e
o r d e r ,
a l t h o u g h
i t
w i l l
h a v e
b e e n
r e s c i n d e d ,
w i l l
be
c i t e d
as
p e r s u a s i v e a u t h o r i t y t o o t h e r
t r i a l c o u r t s a r o u n d t h e S t a t e as
t h e
i s s u e
o f
t h e
l e g a l i t y
o f
s i m i l a r
e l e c t r o n i c
g a m i n g
m a c h i n e s i s l i t i g a t e d i n o t h e r l o c a l e s .
A l t h o u g h t h e r e may
be
16
1080805 a n d 1080806
some m e r i t t o t h e R i l e y d e f e n d a n t s '
p o s i t i o n i n t h i s
r e g a r d ,
on b a l a n c e we f i n d i t u n p e r s u a s i v e .
The
o t h e r
f a c t o r s
r e l i e d
upon
i n E r i e ,
h o w e v e r , do
s u p p o r t a c o n c l u s i o n t h a t t h i s C o u r t
s h o u l d n o t c o n s i d e r t h e
p r e s e n t p r o c e e d i n g moot.
C l e a r l y , as t o t h e q u e s t i o n s o f
l a w
t h a t we must c o n s i d e r i n
a d d r e s s i n g t h e i s s u e o f C o r n e r s t o n e ' s
and FTV's l i k e l i h o o d o f s u c c e s s on t h e m e r i t s , b o t h t h e R i l e y
d e f e n d a n t s
a n d C o r n e r s t o n e
a n d FTV
" c o n t i n u e
t o h a v e "
a
" c o n c r e t e s t a k e i n
t h e outcome o f t h e c a s e . "
529 U.S. a t
288.
F u r t h e r , i n E r i e , t h e Supreme C o u r t f o u n d i t
t o
be enough t h a t
t h e
p l a i n t i f f
" i s s t i l l
i n c o r p o r a t e d ... a n d i t
c o u l d
a g a i n
d e c i d e t o o p e r a t e " i n t h e c h a l l e n g e d manner.
I d . H e r e , n o t
o n l y i s C o r n e r s t o n e
" s t i l l
i n c o r p o r a t e d , " b u t i t a l s o h a s
n e v e r s t o p p e d , a n d makes no o f f e r t o s t o p , o p e r a t i n g i n
t h e
c h a l l e n g e d manner.
F u r t h e r
s t i l l , t h e R i l e y d e f e n d a n t s
h a v e
made no commitment t o r e f r a i n
f r o m any f u r t h e r
s e i z u r e o f
m a c h i n e s f r o m t h e EC, a n d C o r n e r s t o n e
a n d FTV h a v e made no
commitment t o n o t s e e k a p r e l i m i n a r y i n j u n c t i o n a g a i n s t
s u c h
a s e i z u r e .
P e r h a p s most i m p o r t a n t l y , l i k e t h e U n i t e d S t a t e s
Supreme C o u r t i n
E r i e , " [ o ] u r i n t e r e s t i n
p r e v e n t i n g
l i t i g a n t s
f r o m
a t t e m p t i n g t o m a n i p u l a t e
t h e C o u r t ' s
j u r i s d i c t i o n t o
17
1080805 a n d 1080806
i n s u l a t e
a f a v o r a b l e d e c i s i o n
f r o m
r e v i e w
f u r t h e r
c o u n s e l s
a g a i n s t a f i n d i n g o f m o o t n e s s h e r e . "
529 U.S.
a t
288.
We
d e c l i n e
t o h o l d t h a t
t h e
a p p a r e n t
w i l l i n g n e s s
o f
a
p r e v a i l i n g
l i t i g a n t
i n t h e c o u r t b e l o w t o have an a p p e a l
t o
t h i s C o u r t d i s m i s s e d and t h e c a s e remanded f o r t h e p u r p o s e o f
a l l o w i n g t h e l o w e r c o u r t t o r e s c i n d t h e j u d g m e n t i n i t s f a v o r
d e p r i v e s
t h i s
C o u r t
o f any
d i s c r e t i o n
t o d e c i d e t h e
m a t t e r
p e n d i n g
b e f o r e u s .
H e r e ,
one
o f t h e m o v a n t s ,
C o r n e r s t o n e ,
i n i t i a t e d
t h e p r e s e n t
a c t i o n
by
f i l i n g
a c o m p l a i n t a g a i n s t
v a r i o u s S t a t e o f f i c i a l s i n t h e Lowndes C i r c u i t C o u r t .
I t and
FTV
t h e n s o u g h t a p r e l i m i n a r y
i n j u n c t i o n a g a i n s t t h o s e S t a t e
o f f i c i a l s .
A t
t h e i r
r e q u e s t ,
t h e
t r i a l
c o u r t c o n v e n e d
a
h e a r i n g i n w h i c h b o t h s i d e s p a r t i c i p a t e d , p r e s e n t i n g w i t n e s s e s
and
l e g a l
a r g u m e n t s .
C o r n e r s t o n e
and
FTV
s u c c e e d e d
i n
o b t a i n i n g t h e r e l i e f t h e y had r e q u e s t e d .
The R i l e y
d e f e n d a n t s
t h e n
s o u g h t ,
as
was
t h e i r
r i g h t ,
a p p e l l a t e
r e v i e w by
t h i s
C o u r t o f t h e
t r i a l
c o u r t ' s o r d e r f o r i n j u n c t i v e
r e l i e f
t h a t
had
b e e n
o b t a i n e d
by
C o r n e r s t o n e
and
FTV.
See
R u l e
4 ( a ) ( 1 ) ( A ) , A l a . R. App.
P.
On A p r i l 17, 2009, a p p r o x i m a t e l y
two and o n e - h a l f weeks a f t e r t h e
f i l i n g o f t h e a p p e a l s ,
t h i s
C o u r t g r a n t e d t h e R i l e y d e f e n d a n t s ' m o t i o n
t o s t a y t h e
t r i a l
18
1080805 a n d 1080806
c o u r t ' s p r e l i m i n a r y
i n j u n c t i o n .
On May
26, 2009, t h e
R i l e y
d e f e n d a n t s
f i l e d
t h e i r
b r i e f
on
t h e m e r i t s o f
t h e
a p p e a l .
T h r e e d a y s
l a t e r ,
on May
29, 2009, C o r n e r s t o n e
and FTV
t h e n
f i l e d t h e i r m o t i o n s s e e k i n g t h e d i s s o l u t i o n o f t h e p r e l i m i n a r y
i n j u n c t i o n and t h e d i s m i s s a l o f t h e a p p e a l s .
S i n c e t h a t t i m e ,
C o r n e r s t o n e and FTV a l s o have f i l e d
t h e i r b r i e f on t h e m e r i t s ,
and
t h e
R i l e y
d e f e n d a n t s
h a v e ,
i n t u r n ,
f i l e d
t h e i r
r e p l y
b r i e f .
These a p p e a l s t h e r e f o r e a r e
f u l l y
b r i e f e d and
r e a d y
f o r
d e c i s i o n .
G i v e n t h e c o n t i n u i n g l i v e
c o n t r o v e r s y b e t w e e n
t h e
p a r t i e s
as
t o
t h e
l e g a l i t y
o f
t h e
e l e c t r o n i c
g a m i n g
m a c h i n e s i n q u e s t i o n , t h e o n g o i n g
a c t i v i t y o f C o r n e r s t o n e i n
u s i n g m a c h i n e s n o t s e i z e d by t h e R i l e y d e f e n d a n t s , as w e l l
as
m a c h i n e s p r o c u r e d by
C o r n e r s t o n e
i n s u b s t i t u t i o n
f o r
t h o s e
w h i c h
were
s e i z e d ,
t h e
c o n c r e t e
i n t e r e s t
t h a t
b o t h
s i d e s
c l e a r l y c o n t i n u e t o h a v e i n t h e l e g a l q u e s t i o n s p r e s e n t e d i n
t h e s e a p p e a l s , i n c l u d i n g p a r t i c u l a r l y t h o s e
l e g a l
p r i n c i p l e s
t h a t
w o u l d
be
a d d r e s s e d
i n
t h e
c o u r s e
o f
c o n s i d e r i n g
C o r n e r s t o n e
and FTV's
l i k e l i h o o d
o f s u c c e s s on t h e
m e r i t s ,
and
t h e a d v e r s e n e s s
o f t h e
p a r t i e s
r e l a t i n g
t o t h e s e
l e g a l
q u e s t i o n s ,
we
c a n n o t
c o n c l u d e
t h a t
t h i s
C o u r t
has
no
d i s c r e t i o n t o p r o c e e d t o c o n s i d e r t h e s e a p p e a l s .
19
1080805 a n d
1080806
The
o b s e r v a t i o n
o f
t h e
U n i t e d
S t a t e s Supreme
C o u r t
i n
W.T.
G r a n t Co.,
345
U.S.
a t 6 3 2 ,
6 i s n o t e w o r t h y :
6The
C o u r t
s u m m a r i z e d
t h e
f a c t s
i n W.T.
G r a n t
Co.
as
f o l l o w s :
" F o r t h e
f i r s t
t i m e
s i n c e t h e e n a c t m e n t o f
t h e
C l a y t o n
A c t
i n
1914
t h e
C o u r t
i s
c a l l e d
u p o n
t o
c o n s i d e r
§
8's
p r o h i b i t i o n s a g a i n s t
i n t e r l o c k i n g
c o r p o r a t e d i r e c t o r a t e s . The G o v e r n m e n t a p p e a l s
f r o m
j u d g m e n t s d i s m i s s i n g
c i v i l
a c t i o n s b r o u g h t
a g a i n s t
[ J o h n
M.]
H a n c o c k a n d
t h r e e
p a i r s o f
c o r p o r a t i o n s
w h i c h he
s e r v e d
as
a d i r e c t o r ,
W.T.
G r a n t Co.
and
S.H.
K r e s s
&
Co.,
S e a r s
R o e b u c k
&
Co.
a n d
B o n d
S t o r e s , I n c . , a n d K r o g e r Co.
a n d J e w e l Tea Co.,
I n c .
A l l e g i n g t h a t t h e
s i z e a n d
c o m p e t i t i v e
r e l a t i o n s h i p
o f
e a c h
s e t
o f
c o m p a n i e s
b r o u g h t
t h e
i n t e r l o c k s
w i t h i n
t h e
r e a c h
o f
§ 8,
t h e
c o m p l a i n t s
a s k e d
t h e
c o u r t t o o r d e r t h e p a r t i c u l a r
i n t e r l o c k s
t e r m i n a t e d
a n d
t o
e n j o i n
f u t u r e
v i o l a t i o n s
o f
§
8
by
t h e
i n d i v i d u a l a n d c o r p o r a t e d e f e n d a n t s .
Soon a f t e r
t h e
c o m p l a i n t s
w e r e
f i l e d ,
H a n c o c k
r e s i g n e d
f r o m
t h e
b o a r d s
o f K r e s s ,
K r o g e r
a n d Bond.
D i s c l o s i n g t h e
r e s i g n a t i o n s
by
a f f i d a v i t ,
a l l o f
t h e
d e f e n d a n t s
t h e n moved t o d i s m i s s t h e a c t i o n s as moot.
T r e a t e d
as m o t i o n s f o r summary j u d g m e n t , t h e y w e r e
g r a n t e d
by
t h e
D i s t r i c t J u d g e .
He
c o n c l u d e d
t h a t t h e r e
i s
n o t
' t h e
s l i g h t e s t
t h r e a t t h a t t h e d e f e n d a n t s
w i l l
a t t e m p t any
f u t u r e a c t i v i t y i n v i o l a t i o n o f § 8 ( i f
t h e y h a v e v i o l a t e d i t a l r e a d y ) . ' "
345
U.S.
a t 630-31
( f o o t n o t e s o m i t t e d ) .
The
C o u r t h e l d t h a t
t h e g o v e r n m e n t f a i l e d t o c a r r y i t s b u r d e n o f s h o w i n g on
a p p e a l
t h a t t h e
t r i a l
c o u r t h a d a b u s e d i t s d i s c r e t i o n i n
c o n c l u d i n g
t h a t t h e r e was
no
p o s s i b i l i t y t h a t H a n c o c k a n d
t h e
c o m p a n i e s
w o u l d
a t t e m p t
t o
i n t e r l o c k
a g a i n ,
t h o u g h
i t o b s e r v e d
t h a t
" [ w ] e r e
we
s i t t i n g
as
a
t r i a l
c o u r t ,
[ t h e
g o v e r n m e n t ' s ]
s h o w i n g m i g h t be p e r s u a s i v e . "
I d . a t
634.
20
1080805 and
1080806
" B o t h
s i d e s
a g r e e
t o
t h e
a b s t r a c t
p r o p o s i t i o n
t h a t
v o l u n t a r y
c e s s a t i o n
o f
a l l e g e d l y
i l l e g a l
c o n d u c t d o e s
n o t
d e p r i v e
t h e
t r i b u n a l o f power
t o
h e a r and d e t e r m i n e t h e c a s e , i . e . , does n o t make
t h e
c a s e moot.
A c o n t r o v e r s y
may
r e m a i n t o be
s e t t l e d
i n s u c h c i r c u m s t a n c e s ,
...
e.g.,
a d i s p u t e
o v e r
t h e
l e g a l i t y o f t h e c h a l l e n g e d
p r a c t i c e s .
The
d e f e n d a n t
i s
f r e e t o r e t u r n
t o h i s o l d ways.
T h i s ,
t o g e t h e r
w i t h a p u b l i c i n t e r e s t i n h a v i n g t h e
l e g a l i t y o f
t h e
p r a c t i c e s
s e t t l e d ,
m i l i t a t e s
a g a i n s t
a
m o o t n e s s
c o n c l u s i o n .
F o r
t o
s a y
t h a t
t h e
c a s e
has
become
moot means
t h a t
t h e
d e f e n d a n t
i s
e n t i t l e d
t o
a
d i s m i s s a l
as
a m a t t e r
o f
r i g h t .
The
c o u r t s
h a v e
r i g h t l y r e f u s e d
t o g r a n t d e f e n d a n t s s u c h a p o w e r f u l
weapon a g a i n s t
p u b l i c l a w
e n f o r c e m e n t . "
( E m p h a s i s a d d e d ; c i t a t i o n s and
f o o t n o t e s
o m i t t e d . )
E v e n i f t h e c a s e b e f o r e
us p r o p e r l y
c o u l d be deemed moot
and
t h e r e f o r e b e y o n d t h e power o f t h i s C o u r t t o d e c i d e a t
t h i s
j u n c t u r e ,
i t w o u l d
f a l l
w i t h i n a r e c o g n i z e d
e x c e p t i o n
t o
t h e
d o c t r i n e
o f
m o o t n e s s .
We
a l r e a d y
h a v e
d i s c u s s e d
t h e
r e l u c t a n c e
o f
f e d e r a l
c o u r t s
t o
t r e a t
as moot a
p r o c e e d i n g
i n v o l v i n g
c h a l l e n g e d
c o n d u c t
t h a t
i s c a p a b l e
o f
r e c u r r i n g ,
e s p e c i a l l y where t h e p u b l i c i n t e r e s t i s i n h a v i n g t h e
l e g a l i t y
o f
t h e
c h a l l e n g e d
c o n d u c t
s e t t l e d .
A
s i m i l a r
r e l u c t a n c e
i n f o r m s t h e e x c e p t i o n
t o m o o t n e s s t h a t has b e e n r e c o g n i z e d
i n
A l a b a m a f o r i s s u e s i n w h i c h t h e r e i s g r e a t p u b l i c i n t e r e s t
and
t h a t
a r e
l i k e l y
t o
r e c u r .
S p e c i f i c a l l y ,
t h e
R i l e y d e f e n d a n t s a r g u e
t h a t
21
1080805 a n d
1080806
" e v e n
i f t h i s
C o u r t
c o n c l u d e s
t h a t
[ t h e i r ]
a p p e a l
has
become moot,
i t s h o u l d
n o n e t h e l e s s
deny
t h e
m o t i o n
[by
C o r n e r s t o n e
and
FTV
t o
d i s s o l v e
t h e
p r e l i m i n a r y
i n j u n c t i o n and
t o d i s m i s s
t h e
a p p e a l s ]
u n d e r
t h i s
C o u r t ' s
' e x c e p t i o n
t o
t h e
g e n e r a l
m o o t n e s s
r u l e
f o r
c a s e s
i n v o l v i n g a b r o a d
p u b l i c
i n t e r e s t . '
Chapman v. Gooden, 974
So.
2d
972,
989
( A l a .
2007)
( i n t e r n a l
q u o t a t i o n s
and
c i t a t i o n s
o m i t t e d ) .
T h a t
' e x c e p t i o n
e x i s t s
f o r a "moot c a s e
i n v o l v i n g
i s s u e s
o f g r e a t
p u b l i c i m p o r t a n c e ,
w h i c h
may
r e c u r
i n t h e
f u t u r e . " ' I d .
( q u o t i n g
1A
C . J . S .
A c t i o n s
§ 81
( 2 0 0 5 ) ) . "
As
t h e
R i l e y d e f e n d a n t s
f u r t h e r
n o t e ,
t h i s
C o u r t
has
e x p l a i n e d
" ' t h e
c r i t e r i a
f o r
a p p l y i n g
t h e
p u b l i c
i n t e r e s t
e x c e p t i o n
t o
t h e m o o t n e s s
d o c t r i n e ' " as
i n c l u d i n g
(1)
" t h e
p u b l i c
n a t u r e
o f t h e
q u e s t i o n , "
(2)
" t h e
d e s i r a b i l i t y
o f
an
a u t h o r i t a t i v e d e t e r m i n a t i o n
f o r t h e p u r p o s e o f g u i d i n g p u b l i c
o f f i c e r s , "
and
(3)
" t h e
l i k e l i h o o d
t h a t
t h e
q u e s t i o n
w i l l
g e n e r a l l y
r e c u r . "
R i l e y
d e f e n d a n t s '
o p p o s i t i o n ,
a t
10
( q u o t i n g Chapman v. Gooden, 974
So.
2d
972,
989
( A l a . 2007)
( q u o t i n g i n t u r n 1A C . J . S . A c t i o n s § 81
( 2 0 0 5 ) ) , a n d Graham v.
A l a b a m a S t a t e E m p l o y e e s ' A s s ' n , 991 So. 2d 710,
716
( A l a . C i v .
App.
2007)
( a p p l y i n g
t h e
p u b l i c - i n t e r e s t e x c e p t i o n
t o
t h e
m o o t n e s s
d o c t r i n e ) .
The
R i l e y d e f e n d a n t s
a r g u e
t h a t
t h e
p r e s e n t c a s e " f a l l s s q u a r e l y w i t h i n t h e e x c e p t i o n " f o r m a t t e r s
o f g r e a t p u b l i c i n t e r e s t .
S p e c i f i c a l l y , t h e R i l e y d e f e n d a n t s
22
1080805 a n d
1080806
a r g u e w i t h r e g a r d t o t h e
f i r s t c r i t e r i o n , t h e p u b l i c n a t u r e
o f
t h e q u e s t i o n , as
f o l l o w s :
" F i r s t ,
t h e r e
i s
no
q u e s t i o n
t h a t
t h i s
c a s e
' i n v o l v e [ s ]
a
m a t t e r
o f
p u b l i c
i m p o r t a n c e . '
Chapman, 974
So. 2d a t 989.
A c u r s o r y r e v i e w o f
t h e
n e w s p a p e r s
o f
t h i s
S t a t e
d e m o n s t r a t e s
t h a t
t h e
l e g a l i t y
o f
s o - c a l l e d
e l e c t r o n i c
b i n g o
t h a t
i s
p l a y e d on s l o t m a c h i n e s i s a p r e s s i n g i s s u e o f g r e a t
p u b l i c c o n c e r n
s p r e a d i n g a l l a c r o s s A l a b a m a .
"The
i s s u e i s b e f o r e t h i s C o u r t b e c a u s e G o v e r n o r
R i l e y a n d t h e T a s k F o r c e h a v e shown t h a t t h e r e i s no
r e a s o n a b l e
c h a n c e t h a t t h e m a c h i n e s a t i s s u e c o u l d
be
f o u n d
t o be
a n y t h i n g
o t h e r
t h a n
s l o t
m a c h i n e s ,
a n d
no
r e a s o n a b l e
c h a n c e t h a t t h e c o m p u t e r p r o g r a m
u s e d
t o
r u n
them
q u a l i f i e s
as
t h e game
commonly
known as b i n g o w i t h i n t h e m e a n i n g o f Amendment
674.
A
r u l i n g b y
t h i s
C o u r t
t o t h a t e f f e c t w o u l d s u r e l y
p u t
a
p r a c t i c a l
e n d
t o
t h i s
l a t e s t
e f f o r t
by
g a m b l i n g
i n t e r e s t s
a r o u n d
t h e
S t a t e
t o
make
a
m o c k e r y
o f
t h i s
S t a t e ' s
g a m b l i n g
l a w s ,
a n d
[ C o r n e r s t o n e
a n d
FTV]
c l e a r l y know i t .
I t i s f o r
t h a t r e a s o n
a n d t h a t r e a s o n
a l o n e t h a t t h e y s e e k t o
a v o i d
t h i s
C o u r t ' s
r u l i n g
on
t h a t
i s s u e .
They
p r e f e r t o d e l a y , c o n t i n u e t o r a k e i n m i l l i o n s
d u r i n g
t h e
d e l a y w i t h p r o c e d u r a l m a n e u v e r s
s u c h
as
t h o s e
t h e y
h a v e
e n g a g e d
i n h e r e
a n d
i n
o t h e r
a p p e a l s
b e f o r e t h i s C o u r t , and u l t i m a t e l y p i n t h e i r h o p e s on
t h e
p o s s i b i l i t y
o f
p o l i t i c a l
c h a n g e s
w h i c h
t h e y
b e l i e v e may
come w i t h
d e l a y . "
R i l e y d e f e n d a n t s '
o p p o s i t i o n , a t 1 1 - 1 2 .
S i m i l a r l y ,
as t o t h e s e c o n d c r i t e r i o n , t h e
d e s i r a b i l i t y
o f an a u t h o r i t a t i v e d e t e r m i n a t i o n , t h e R i l e y d e f e n d a n t s
a r g u e
as
f o l l o w s :
23
1080805 a n d 1080806
" T h e r e
i s
a
c l e a r
n e e d
f o r
'an
a u t h o r i t a t i v e
d e t e r m i n a t i o n ' o f t h i s t r o u b l e d a r e a o f A l a b a m a
l a w
' f o r
t h e
p u r p o s e
o f
g u i d i n g
p u b l i c
o f f i c e r s . '
[Chapman, 974
So. 2d a t 989.]
D e s p i t e t h i s
C o u r t ' s
c l e a r ,
e m p h a t i c ,
a n d
r e p e a t e d d i s a p p r o v a l o f
e v e r y
a r t f u l a t t e m p t t o c i r c u m v e n t A l a b a m a ' s a n t i - g a m b l i n g
l a w ,
s e e ,
e . g . ,
B a r b e r
v.
J e f f e r s o n C o u n t y
R a c i n g
A s s o c . , 960
So.
2d
599,
614
( A l a . 2 0 0 6 ) ,
g a m b l i n g
i n t e r e s t s , as d e m o n s t r a t e d
b y t h i s c a s e , c o n t i n u e t o
f l o u t t h o s e
l a w s . "
R i l e y d e f e n d a n t s '
o p p o s i t i o n , a t
12.
We n e e d n o t a d d r e s s a l l
a s p e c t s o f t h e R i l e y
d e f e n d a n t s '
a r g u m e n t w i t h r e s p e c t t o t h e f i r s t two
c r i t e r i a .
I t i s e n o u g h
t h a t we
a g r e e w i t h t h e R i l e y d e f e n d a n t s '
c o n t e n t i o n t h a t t h e
q u e s t i o n b e f o r e us i n v o l v e s a m a t t e r o f g r e a t p u b l i c
i n t e r e s t
a n d
i m p o r t a n c e
a n d t h a t t h e r e i s a c l e a r a n d p r e s s i n g
n e e d
f o r an a u t h o r i t a t i v e d e t e r m i n a t i o n as t o t h a t q u e s t i o n .
The
p a r t i e s
d i s a g r e e as
t o w h e t h e r t h e
f a c t
t h a t
t h i s
c a s e
comes
b e f o r e
us
i n
t h e
f o r m
o f
an
a p p e a l
f r o m
a
p r e l i m i n a r y
i n j u n c t i o n
s h o u l d c o u n s e l a g a i n s t a d e c i s i o n
b y
t h i s
C o u r t
t o
d e c i d e
t h e
i s s u e s p r e s e n t e d .
T h i s
c a s e
i s
b e f o r e
us
on
an
a p p e a l
o f
a
r u l i n g
on
a
r e q u e s t
f o r
a
p r e l i m i n a r y
i n j u n c t i o n ,
as i s p e r m i t t e d by R u l e
4 ( a ) ( 1 ) ( A ) ,
24
1080805 a n d 1080806
A l a . R. App.
P.
T h i s C o u r t h a s an o b l i g a t i o n t o d e c i d e
t h e s e
a p p e a l s ,
j u s t as i t d o e s any a p p e a l p r o p e r l y b e f o r e i t .
7
F i n a l l y ,
t h e
R i l e y
d e f e n d a n t s
a r g u e
as
f o l l o w s
w i t h
r e g a r d
t o
t h e
t h i r d
c r i t e r i o n
o f
t h e
p u b l i c - i n t e r e s t
e x c e p t i o n :
" T h i r d ,
a n d
p e r h a p s
m o s t i m p o r t a n t , t h e r e i s a
c e r t a i n t y
t h a t t h e
q u e s t i o n s
p r e s e n t
h e r e
' w i l l
g e n e r a l l y
r e c u r . '
Chapman,
974
So.
2d
a t
989."
R i l e y
d e f e n d a n t s '
o p p o s i t i o n , a t 13.
The
R i l e y d e f e n d a n t s
a r g u e
t h a t
g a m b l i n g
i n t e r e s t s ,
s u c h
as
C o r n e r s t o n e ,
w i l l
c o n t i n u e
t o
o p e r a t e
e l e c t r o n i c g a m i n g m a c h i n e s o f t h e n a t u r e a t i s s u e h e r e ,
t h a t
t h e y a r e d o i n g so i n more a n d more v e n u e s a r o u n d
t h e
S t a t e
" w i t h e a c h p a s s i n g d a y , "
a n d t h a t i t i s " i n e v i t a b l e t h a t t h e
i s s u e s p r e s e n t e d h e r e
[ w i l l ] r e t u r n t o t h i s C o u r t a n d d e l a y i n g
t h e i r
r e s o l u t i o n
w i l l
n o t
s e r v e
t h e
i n t e r e s t s
o f
j u s t i c e . "
R i l e y d e f e n d a n t s '
o p p o s i t i o n , a t
13.
We
a g r e e
t h a t
t h e
l e g a l
q u e s t i o n s
p r e s e n t e d
h e r e ,
a l t h o u g h p r e s e n t e d i n t h e c o n t e x t o f an a p p e a l f r o m an
o r d e r
i s s u i n g a p r e l i m i n a r y i n j u n c t i o n , a r e l e g a l q u e s t i o n s o f g r e a t
7We
f u r t h e r n o t e t h a t , i f t h e
t r i a l c o u r t knows t h e
l e g a l
c h a r a c t e r i s t i c s o f a b i n g o game, t h e n any f u r t h e r
p r o c e e d i n g s
c a n
f o c u s on w h e t h e r C o r n e r s t o n e
and
FTV
h a v e
d e m o n s t r a t e d
t h a t t h e e l e c t r o n i c g a m i n g m a c h i n e s a t i s s u e q u a l i f y u n d e r t h e
l e g a l d e f i n i t i o n o f t h e
t e r m .
25
1080805 a n d 1080806
p u b l i c
i n t e r e s t a n d i m p o r t a n c e
t h a t a r e
l i k e l y t o r e c u r
a n d
i n d e e d
a l r e a d y h a v e
r e c u r r e d
i n
o t h e r
l o c a l e s .
8
I t
i s
a p p a r e n t
t h a t
u n t i l
s u c h
t i m e
as
t h i s
C o u r t
a d d r e s s e s
t h e
m a t t e r , u n c e r t a i n t y a n d
c o n f l i c t i n g o u t c o m e s w i l l c o n t i n u e .
We
t h e r e f o r e p r o c e e d t o d e c i d e t h e p r e s e n t a p p e a l s .
9
i n
8 B a s e d
on
t h i s C o u r t ' s r e c o r d s a n d t h e b r i e f s
s u b m i t t e d
t h i s
c a s e ,
we
a r e
aware
o f
l i t i g a t i o n
c o n c e r n i n g
t h e
l e g a l i t y
o f
s o - c a l l e d
" e l e c t r o n i c
b i n g o "
m a c h i n e s
a l r e a d y
p e n d i n g
i n , o r on a p p e a l t o t h i s C o u r t f r o m ,
f i v e c o u n t i e s ,
n a m e l y :
J e f f e r s o n , W a l k e r , Lowndes
( t h i s c a s e ) , E t o w a h ,
a n d
S t . C l a i r C o u n t i e s , as w e l l as a d e c i s i o n b y t h e U n i t e d S t a t e s
D i s t r i c t C o u r t f o r t h e N o r t h e r n D i s t r i c t o f A l a b a m a p e r t a i n i n g
t o M a d i s o n C o u n t y .
D e c i s i o n s r e n d e r e d b y t h e
t r i a l c o u r t s i n
t h r e e o f t h e s e c a s e s f a v o r t h e p r o p o n e n t s
o f s u c h
m a c h i n e s ,
w h i l e t h r e e o f them h o l d t h a t t h e m a c h i n e s a r e i l l e g a l .
None
o f t h e s i x d e c i s i o n s e m p l o y s e x a c t l y t h e same l e g a l
a n a l y s i s ,
a l t h o u g h t h e d e c i s i o n s f r o m J e f f e r s o n a n d W a l k e r C o u n t i e s
r e l y
upon
s e v e r a l
o f t h e same a u t h o r i t i e s
c i t e d
i n t h e
" m e r i t s "
d i s c u s s i o n
b e l o w .
9 A s n o t e d , one o f t h e e l e m e n t s
t h a t must be shown i n o r d e r
t o
o b t a i n a
p r e l i m i n a r y
i n j u n c t i o n
i s " t h e
l i k e l i h o o d
o f
s u c c e s s on t h e m e r i t s . "
I n o r d e r t o a d d r e s s
t h i s e l e m e n t
i n
t h e p r e s e n t c a s e , we must
f i r s t
a s c r i b e m e a n i n g t o t h e
t e r m
" b i n g o , " t h e t e r m t h a t i s u s e d i n t h e c o n s t i t u t i o n a l amendment
a t
i s s u e
h e r e
and
s i m i l a r
amendments
a p p l i c a b l e
t o
o t h e r
l o c a l e s .
I t i s o n l y a g a i n s t t h i s m e a n i n g
t h a t we
t h e n
c a n
m e a s u r e t h e f a c t s shown by C o r n e r s t o n e and FTV a t t h e h e a r i n g
on t h e p r e l i m i n a r y i n j u n c t i o n t o d e t e r m i n e i f C o r n e r s t o n e
and
FTV
met
t h e i r
f a c t u a l
b u r d e n
o f d e m o n s t r a t i n g
a
r e a s o n a b l e
l i k e l i h o o d
o f s u c c e s s
on
t h e m e r i t s
( i . e . ,
d e m o n s t r a t i n g
a
r e a s o n a b l e
l i k e l i h o o d
t h a t
t h e
m a c h i n e s
h a v e
t h e
c h a r a c t e r i s t i c s o f a " b i n g o game").
We
r e j e c t J u s t i c e W o o d a l l ' s
a s s e r t i o n i n h i s
d i s s e n t i n g
o p i n i o n t h a t o u r h o l d i n g t o d a y i s somehow n o t " a u t h o r i t a t i v e . "
U n d e r o u r r u l e s , p r e l i m i n a r y i n j u n c t i o n s a r e a p r o p e r s u b j e c t
26
1080805 a n d 1080806
S t a n d a r d o f R e v i e w
"The
d e c i s i o n
t o
g r a n t
o r
t o
d e n y
a
p r e l i m i n a r y
i n j u n c t i o n i s w i t h i n t h e
t r i a l
c o u r t ' s s o u n d d i s c r e t i o n .
I n
r e v i e w i n g
an
o r d e r
g r a n t i n g a
p r e l i m i n a r y
i n j u n c t i o n ,
t h e
C o u r t
d e t e r m i n e s
w h e t h e r
t h e
t r i a l
c o u r t
e x c e e d e d
t h a t
d i s c r e t i o n . "
S o u t h T r u s t B a n k o f A l a b a m a , N.A.
v.
W e b b - S t i l e s
Co. , 931
So.
2d
706,
709
( A l a . 2 0 0 5 ) .
As
t o q u e s t i o n s
o f
f a c t ,
t h e
o r e
t e n u s
r u l e
i s
a p p l i c a b l e
i n
p r e l i m i n a r y -
i n j u n c t i o n
p r o c e e d i n g s .
See
W a t e r Works
& Sewer
Bd.
o f
B i r m i n g h a m v. I n l a n d L a k e I n v s . , LLC,
[Ms. 1070030, Aug.
28,
2009]
So.
3d
,
( A l a . 2 0 0 9 ) .
As
t h i s C o u r t
r e c e n t l y
n o t e d i n H o l i d a y I s l e ,
LLC
v. A d k i n s , 12
So.
3d 1173,
1176
( A l a .
2 0 0 8 ) ,
h o w e v e r ,
i s s u a n c e
i n
" [ t ] o
t h e e x t e n t t h a t t h e t r i a l c o u r t ' s i
o f
a
p r e l i m i n a r y
i n j u n c t i o n
i s g r o u n d e d
o n l y
q u e s t i o n s
o f
l a w
b a s e d
on
u n d i s p u t e d
f a c t s ,
o u r
l o n g s t a n d i n g
r u l e
t h a t
we
r e v i e w
an
i n j u n c t i o n
s o l e l y t o d e t e r m i n e w h e t h e r t h e t r i a l c o u r t
e x c e e d e d
i t s
d i s c r e t i o n s h o u l d n o t a p p l y .
We
f i n d t h e
r u l e
a p p l i e d b y t h e U n i t e d S t a t e Supreme C o u r t i n s i m i l a r
o f
a p p e a l s
t o
t h i s
C o u r t ,
and
t h i s
C o u r t
i s o b l i g a t e d
t o
d e c i d e s u c h a p p e a l s , no
l e s s t h a n we
a r e o b l i g a t e d t o d e c i d e
a p p e a l s
o f p e r m a n e n t
i n j u n c t i o n s .
I f , i n d e c i d i n g s u c h
an
a p p e a l ,
t h i s
C o u r t
f i n d s
i t n e c e s s a r y
t o d e c i d e some
l e g a l
q u e s t i o n ,
o u r d e c i s i o n as t o t h a t
l e g a l q u e s t i o n i s no
l e s s
a u t h o r i t a t i v e t h a n i f t h a t l e g a l q u e s t i o n was p r e s e n t e d t o us
i n
an a p p e a l f r o m a p e r m a n e n t
i n j u n c t i o n .
27
1080805 a n d 1080806
s i t u a t i o n s t o be p e r s u a s i v e : 'We r e v i e w t h e D i s t r i c t
C o u r t ' s
l e g a l
r u l i n g s
de
novo
a n d i t s u l t i m a t e
d e c i s i o n
t o i s s u e
t h e p r e l i m i n a r y
i n j u n c t i o n f o r
a b u s e o f d i s c r e t i o n . '
G o n z a l e s v. O C e n t r o
E s p i r i t a
B e n e f i c e n t e U n i a o do V e g e t a l , 546 U.S. 418, 428, 126
S. C t . 1 2 1 1 , 163 L. E d . 2 d 1017 (2006)
"
( E m p h a s i s
o m i t t e d . )
The
p l a i n t i f f
b e a r s
t h e b u r d e n
o f p r o d u c i n g
e v i d e n c e
s u f f i c i e n t
t o
s u p p o r t
t h e
i s s u a n c e
o f
a
p r e l i m i n a r y
i n j u n c t i o n .
Ormco Co. v. J o h n s , 869 So. 2d 1109, 1113 ( A l a .
2 0 0 3 ) .
The r e q u i r e m e n t s f o r
a p r e l i m i n a r y i n j u n c t i o n a r e w e l l
known:
" ' B e f o r e
e n t e r i n g
a
p r e l i m i n a r y
i n j u n c t i o n ,
t h e
t r i a l c o u r t must be s a t i s f i e d :
(1) t h a t w i t h o u t t h e
i n j u n c t i o n t h e p l a i n t i f f
w i l l
s u f f e r i m m e d i a t e a n d
i r r e p a r a b l e
i n j u r y ;
(2) t h a t t h e p l a i n t i f f h a s no
a d e q u a t e
remedy a t l a w ; (3) t h a t t h e p l a i n t i f f i s
l i k e l y t o s u c c e e d on t h e m e r i t s o f t h e c a s e ; a n d (4)
t h a t t h e h a r d s h i p i m p o s e d upon t h e d e f e n d a n t b y t h e
i n j u n c t i o n
w o u l d
n o t
u n r e a s o n a b l y
o u t w e i g h
t h e
b e n e f i t t o t h e p l a i n t i f f . ' "
B l o u n t R e c y c l i n g , L L C v. C i t y o f C u l l m a n , 884 So. 2d 850, 853
( A l a .
2003)
( q u o t i n g B l a y l o c k v . C a r y , 709 So. 2d 1128, 1130
( A l a .
1 9 9 7 ) ) .
M e r i t s
The
R i l e y
d e f e n d a n t s
a r g u e
t h a t
t h e t e r m
" b i n g o " i n
Amendment No. 674 s h o u l d be n a r r o w l y c o n s t r u e d b e c a u s e ,
t h e y
a r g u e , t h e b i n g o amendment i s
an e x c e p t i o n t o t h e p r o h i b i t i o n
28
1080805 a n d 1080806
on
l o t t e r i e s
f o u n d
i n A r t . I , § 65, A l a . C o n s t .
1 9 0 1 .
C o r n e r s t o n e
and FTV
r e s p o n d
b y
c o n t e n d i n g
t h a t ,
u n d e r
a
" p l a i n - m e a n i n g " r e a d i n g , Amendment No. 674 d o e s n o t s t a t e t h a t
i t i s an e x c e p t i o n t o t h e l o t t e r y
p r o h i b i t i o n , and t h u s i t
s h o u l d n o t be v i e w e d as s u c h .
The f a c t i s , h o w e v e r , t h a t
t h i s
C o u r t h a s e x p l i c i t l y s t a t e d t h a t " ' " b i n g o " i s
a l o t t e r y ' " and
t h a t
"'Amendment No. 508 t o t h e C o n s t i t u t i o n o f A l a b a m a
[ C a l h o u n
C o u n t y ' s
b i n g o
amendment] d i d n o t r e p e a l
A r t i c l e I V , § 65, o f t h e C o n s t i t u t i o n o f A l a b a m a .
Amendment No. 508 s i m p l y amended t h e C o n s t i t u t i o n o f
A l a b a m a b y a l l o w i n g t h e l o t t e r y o f " b i n g o " t o be
o p e r a t e d
l e g a l l y
i n C a l h o u n
C o u n t y f o r p r i z e s o r
money
b y
c e r t a i n
n o n p r o f i t
o r g a n i z a t i o n s f o r
c h a r i t a b l e ,
e d u c a t i o n a l , o r o t h e r
l a w f u l
p u r p o s e s .
The
o n l y
l o t t e r y
l e g a l i z e d
by
t h e p a s s a g e
and
r a t i f i c a t i o n
o f Amendment No. 508 was and i s t h e
l o t t e r y o f " b i n g o . " ' "
C i t y
o f
P i e d m o n t
v.
E v a n s ,
642
So. 2d
435, 436 ( A l a .
1 9 9 4 ) ( q u o t i n g and a d o p t i n g
t r i a l
c o u r t ' s o r d e r ) .
The s t a t e m e n t i n
E v a n s c o n f i r m e d what t h e C o u r t e x p l a i n e d
i n O p i n i o n o f t h e J u s t i c e s No. 373, 795 So. 2d 630, 634 ( A l a .
2 0 0 1 ) : " S i n c e 1980,
A l a b a m a h a s a d o p t e d v a r i o u s c o n s t i t u t i o n a l
amendments c r e a t i n g e x c e p t i o n s t o § 65, s p e c i f i c a l l y a l l o w i n g
t h e game o f b i n g o
u n d e r
c e r t a i n
c i r c u m s t a n c e s .
See
A l a .
C o n s t . , Amendments 386, 387, 4 1 3 , 440, 506, 508, 542, 549,
29
1080805 a n d 1080806
550,
565,
569,
599,
and
6 1 2 . "
( E m p h a s i s added.)
Thus,
t h e
b i n g o amendments a r e e x c e p t i o n s t o t h e
l o t t e r y
p r o h i b i t i o n ,
and
t h e
e x c e p t i o n
s h o u l d
be
n a r r o w l y
c o n s t r u e d .
See
a l s o
B a r r e t t v. S t a t e , 705
So.
2d 529,
531
( A l a . C r i m . App.
1996)
( d i s c u s s e d
i n f r a ) .
1
0
F u r t h e r ,
e x c e p t w h e r e t h e l a n g u a g e o f a
c o n s t i t u t i o n a l
p r o v i s i o n
r e q u i r e s
o t h e r w i s e ,
we
l o o k
t o
t h e
p l a i n
and
commonly
u n d e r s t o o d
m e a n i n g
o f
t h e
t e r m s
u s e d
i n
t h a t
p r o v i s i o n
t o d i s c e r n i t s m e a n i n g .
As
t h i s
C o u r t
s t a t e d i n
S t a t e v. S a y r e ,
118
A l a . 1, 28,
24
So.
89,
92
( 1 8 9 7 ) :
"The
o b j e c t o f a l l c o n s t r u c t i o n i s t o a s c e r t a i n a n d e f f e c t u a t e t h e
i n t e n t i o n o f t h e p e o p l e
i n t h e a d o p t i o n o f t h e
c o n s t i t u t i o n .
The
i n t e n t i o n i s c o l l e c t e d f r o m t h e w o r d s o f t h e
i n s t r u m e n t ,
r e a d a n d
i n t e r p r e t e d i n t h e
l i g h t o f i t s h i s t o r y . "
As
t h i s
C o u r t n o t e d
i n H o u s t o n C o u n t y v. M a r t i n , 232
A l a . 511,
514,
169
So.
13,
16
( 1 9 3 6 ) :
" I t
i s a w e l l - s e t t l e d
r u l e
o f
i n t e r p r e t a t i o n ,
a p p l i c a b l e
t o
c o n s t i t u t i o n s
as
w e l l
as
s t a t u t e s ,
t h a t i t i s p e r m i s s i b l e i n a s c e r t a i n i n g t h e i r p u r p o s e
a n d
i n t e n t t o l o o k t o t h e h i s t o r y o f t h e t i m e s ,
t h e
e x i s t i n g o r d e r o f t h i n g s , t h e s t a t e o f t h e l a w when
10We
n o t e
t h a t
one
o f
t h e
a t t o r n e y s
f o r
C o r n e r s t o n e
a d m i t t e d d u r i n g q u e s t i o n i n g o f t h e T a s k F o r c e ' s
e x p e r t
t h a t
" b i n g o , e v e n t r a d i t i o n a l b i n g o , i s a t y p e o f
l o t t e r y . "
30
1080805 and
1080806
t h e
i n s t r u m e n t
was
a d o p t e d ,
and
t h e
c o n d i t i o n s
n e c e s s i t a t i n g s u c h
a d o p t i o n . "
I n D i s t r i c t o f C o l u m b i a v. H e l l e r ,
U.S.
, 128
S. C t . 2783
( 2 0 0 8 ) , t h e
U n i t e d
S t a t e s Supreme C o u r t e x p l a i n e d
t h a t
" ' [ t ] h e C o n s t i t u t i o n was
w r i t t e n t o be u n d e r s t o o d
b y
t h e v o t e r s ;
i t s w o r d s and p h r a s e s w e r e u s e d i n t h e i r
n o r m a l and
o r d i n a r y
as d i s t i n g u i s h e d f r o m t e c h n i c a l
m e a n i n g . '
U n i t e d
S t a t e s
v.
S p r a g u e ,
282
U.S.
716,
731
( 1 9 3 1 ) ; see
a l s o G i b b o n s v. Ogden, 9 Wheat.
1,
188
( 1 8 2 4 ) .
N o r m a l m e a n i n g may
o f c o u r s e i n c l u d e
an
i d i o m a t i c
m e a n i n g ,
b u t
i t
e x c l u d e s
s e c r e t
o r
t e c h n i c a l m e a n i n g s t h a t w o u l d n o t h a v e b e e n known t o
o r d i n a r y
c i t i z e n s i n t h e
f o u n d i n g
g e n e r a t i o n . "
U.S.
a t
, 128
S.
C t .
a t 2788 ( e m p h a s i s a d d e d ) .
I n
a d d i t i o n
t o
t h e
f o r e g o i n g
p r i n c i p l e s , i n J a n s e n
v.
S t a t e
ex
r e l . D o w n i n g , 273
A l a .
166,
169,
137
So.
2d
47,
49
( 1 9 6 2 ) ,
t h i s C o u r t s t a t e d
t h a t
" [ a ] l t h o u g h
a l e g i s l a t i v e
a c t
c a n n o t c h a n g e t h e m e a n i n g o f a c o n s t i t u t i o n a l p r o v i s i o n , s u c h
a c t may
t h r o w l i g h t on i t s c o n s t r u c t i o n
and,
as a
l e g i s l a t i v e
i n t e r p r e t a t i o n
o f
a p a r t i c u l a r p r o v i s i o n ,
i t i s e n t i t l e d
t o
much w e i g h t . "
The
A l a b a m a L e g i s l a t u r e
i t s e l f
e x p l a i n e d
what
i s meant by " t h e game commonly known as b i n g o " when i t e n a c t e d
A l a .
Code
1975,
§
4 5 - 8 - 1 5 0 ( 1 ) .
I n
t h a t
s t a t u t e ,
t h e
l e g i s l a t u r e
d e f i n e d
t h e
t e r m " b i n g o "
f o r p u r p o s e s
o f
A l a .
C o n s t .
1901,
Amendment
No.
508
( L o c a l Amendments,
C a l h o u n
31
1080805 a n d 1080806
C o u n t y , § 1, A l a . C o n s t . 1901 ( O f f . R e c o m p . ) ) , w h i c h
l e g a l i z e d
" b i n g o games" i n C a l h o u n
C o u n t y :
" ( 1 ) B i n g o .
The game commonly known as b i n g o ,
w h i c h i s a game o f c h a n c e p l a y e d w i t h c a r d s
p r i n t e d
w i t h
f i v e rows o f f i v e
s q u a r e s e a c h .
P a r t i c i p a n t s
p l a c e m a r k e r s
o v e r r a n d o m l y
c a l l e d numbers on t h e
c a r d s i n an a t t e m p t t o f o r m a p r e s e l e c t e d
p a t t e r n
s u c h as a h o r i z o n t a l , v e r t i c a l , o r d i a g o n a l l i n e , o r
a l l
f o u r c o r n e r s .
The f i r s t p a r t i c i p a n t t o f o r m t h e
p r e s e l e c t e d p a t t e r n w i n s t h e game.
The t e r m ' b i n g o '
means any game o f b i n g o o f t h e t y p e d e s c r i b e d above
i n w h i c h w a g e r s a r e p l a c e d , w i n n e r s a r e d e t e r m i n e d ,
and p r i z e s o r o t h e r p r o p e r t y i s d i s t r i b u t e d i n t h e
p r e s e n c e o f a l l p e r s o n s p l a c i n g w a g e r s i n t h a t game.
The
t e r m
' b i n g o ' does n o t
r e f e r
t o any game o f
c h a n c e o t h e r t h a n t h e t y p e o f game d e s c r i b e d i n t h i s
s u b d i v i s i o n . "
A l a . Code 1975, § 4 5 - 8 - 1 5 0 ( 1 ) .
I n c o n t r a s t t o t h e u s e o f m e r e l y t h e t e r m " b i n g o games"
i n
Amendment
No.
508 -- t h e same
t e r m i n o l o g y p r e s e n t i n
Amendment No. 674 a t i s s u e h e r e -- A l a . C o n s t . 1 9 0 1 , Amendment
No. 743
( L o c a l Amendments, G r e e n e C o u n t y ,
§ 1, A l a . C o n s t .
1901
( O f f .
R e c o m p . ) ) ,
l e g a l i z e s i n G r e e n e C o u n t y a f o r m o f
b i n g o
t h a t w o u l d
i n c l u d e an " e l e c t r o n i c m a r k i n g m a c h i n e " i n
l i e u o f a p a p e r c a r d .
E v e n t h a t amendment, w h i c h i s t h e o n l y
amendment i n A l a b a m a we h a v e l o c a t e d t h a t makes any r e f e r e n c e
t o t h e u s e o f e l e c t r o n i c e q u i p m e n t
o f any f o r m ,
c o n t e m p l a t e s
a game i n a l l
m a t e r i a l r e s p e c t s
s i m i l a r t o t h e game o f b i n g o
32
1080805 a n d 1080806
d e s c r i b e d i n § 4 5 - 8 - 1 5 0 ( 1 ) , a n d s o m e t h i n g
t h a t i s m a t e r i a l l y
d i f f e r e n t
f r o m t h e t y p e s o f e l e c t r o n i c
g a m i n g m a c h i n e s a t
i s s u e h e r e .
Amendment No. 743 b e g i n s b y s a y i n g t h a t " b i n g o "
i s
" [ t ] h a t
s p e c i f i c
k i n d o f game commonly known as b i n g o . "
The
d e f i n i t i o n
t h e n e x p l a i n s
t h a t b i n g o i s a game " i n w h i c h
p r i z e s
a r e a w a r d e d on t h e b a s i s
o f d e s i g n a t e d numbers o r
s y m b o l s on a c a r d o r e l e c t r o n i c m a r k i n g m a c h i n e c o n f o r m i n g t o
numbers
o r
s y m b o l s
s e l e c t e d
a t random."
M o r e o v e r ,
t h e
e q u i p m e n t c o n t e m p l a t e d by Amendment No. 743 f o r u s e i n
a b i n g o
game i s e n t i r e l y
d i f f e r e n t t h a n t h e e q u i p m e n t a t i s s u e h e r e .
S p e c i f i c a l l y , Amendment No. 743 d e f i n e s " e q u i p m e n t "
f o r t h e
game o f b i n g o as f o l l o w s :
"The
r e c e p t a c l e a n d numbered o b j e c t s drawn f r o m
i t ,
t h e m a s t e r b o a r d upon w h i c h s u c h o b j e c t s a r e p l a c e d
as d r a w n , t h e c a r d s o r s h e e t s b e a r i n g numbers o r
o t h e r
d e s i g n a t i o n s t o be c o v e r e d a n d t h e o b j e c t s
u s e d
t o
c o v e r
them
o r
e l e c t r o n i c
c a r d
m a r k i n g
m a c h i n e s , a n d t h e b o a r d o r s i g n s , h o w e v e r o p e r a t e d ,
u s e d
t o
a n n o u n c e
o r
d i s p l a y
t h e
numbers
o r
d e s i g n a t i o n s as t h e y a r e d r a w n . "
F o r p u r p o s e s o f t h e
p r e s e n t c a s e , t h e R i l e y d e f e n d a n t s do
n o t c o n t e n d t h a t a " b i n g o game" must be p l a y e d o n l y on p a p e r
c a r d s , a n d we, t h e r e f o r e , do n o t a d d r e s s t h a t i s s u e .
What
t h e
R i l e y d e f e n d a n t s do a r g u e , h o w e v e r , i s t h a t t h e
game a t i s s u e
h e r e d o e s n o t c o n t a i n o t h e r t e l l t a l e e l e m e n t s o f b i n g o s u c h as
33
1080805 a n d
1080806
p l a y e r s m a n u a l l y m a r k i n g a c a r d o f some s o r t , t h e
p o s s i b i l i t y
o f
" s l e e p i n g a b i n g o "
e i t h e r by
f a i l i n g
t o mark a s q u a r e
o r
f a i l i n g
t o
c a l l
o u t
" b i n g o ! "
once
a
p l a y e r
has
a
w i n n i n g
b o a r d ,
p l a y e r s
s e e i n g
and
h e a r i n g
t h a t someone has
won
t h e
game,
and
a game
t h a t
l a s t s
l o n g e r
t h a n
s i x s e c o n d s .
I n
s h o r t , as t h e R i l e y d e f e n d a n t s p u t
i t , t h e m a c h i n e s a t
i s s u e
"have none o f t h e e l e m e n t s o f human s k i l l and
i n t e r a c t i o n
t h a t
a r e
f u n d a m e n t a l
t o
t h e game o f
b i n g o . "
R i l e y
d e f e n d a n t s '
r e p l y b r i e f ,
a t pp.
6-7.
S e v e r a l a u t h o r i t i e s c i t e d by t h e R i l e y d e f e n d a n t s d i s c u s s
what c o n s t i t u t e s t h e game commonly known as b i n g o .
I n E v a n s ,
s u p r a ,
t h i s C o u r t a d o p t e d and
s e t o u t
a
t r i a l
c o u r t ' s
r u l i n g
t h a t h e l d t h a t " ' " I n s t a n t b i n g o "
does n o t
c o n s t i t u t e
" b i n g o "
as
a l l o w e d
by
Amendment
No.
508
o f
t h e
C o n s t i t u t i o n
o f
A l a b a m a . ' " 642
So.
2d a t 436.
Amendment No.
508
( r a t i f i e d
i n
1990)
c o n t a i n s t h e same r e l e v a n t l a n g u a g e as Amendment No.
674
i n
l e g a l i z i n g " [ t ] h e o p e r a t i o n o f b i n g o games."
P i e d m o n t
had
a m u n i c i p a l o r d i n a n c e , h o w e v e r , t h a t d e f i n e d b o t h
t r a d i t i o n a l
b i n g o
and
a game
c a l l e d
" i n s t a n t
b i n g o . "
I n s t a n t
b i n g o
i n v o l v e d
" ' " [ a ]
s i n g l e b a n d e d
t i c k e t
o r
c a r d e a c h w i t h i t s
f a c e
c o v e r e d
t o
c o n c e a l
one
o r
more
numbers
o r
34
1080805 a n d 1080806
s y m b o l s where one o r more c a r d s o r t i c k e t s
i n e a c h
s e t
has
b e e n
d e s i g n a t e d i n a d v a n c e
as
a
w i n n e r .
P a r t i c i p a n t s
a t
a
d e s i g n a t e d
t i m e
o f
p l a y
a r e
r e q u i r e d t o remove t h e f r o n t c o v e r o f t h e B i n g o
c a r d
t o d e t e r m i n e
i f t h a t
c a r d h o l d e r has
t h e
r e q u i r e d
d e s i g n a t e d
numbers
o r
s y m b o l s
t o
be
d e c l a r e d
a
w i n n e r . " ' "
642 So. 2d a t 436.
The
t r i a l c o u r t , and t h i s C o u r t , c o n c l u d e d
i n
E v a n s
t h a t
i n s t a n t
b i n g o
was
n o t
t h e
k i n d
o f
b i n g o
p e r m i t t e d by Amendment No.
508 b e c a u s e
i t was
"'a s e p a r a t e and
d i s t i n c t
t y p e o f l o t t e r y f r o m t h e
l o t t e r y
o f " b i n g o . "
I t does n o t e v e n
f a l l
w i t h i n
t h e d e f i n i t i o n o f b i n g o f o u n d i n M u n i c i p a l O r d i n a n c e
No.
413, w h i c h d e f i n e s b i n g o a s :
" ' " T h a t
s p e c i f i c
k i n d
o f
game,
o r
e n t e r p r i s e , commonly known as
' b i n g o , ' i n
w h i c h
p r i z e s
a r e a w a r d e d on t h e b a s i s
o f
d e s i g n a t e d n u m b e r s , o r s y m b o l s , w h i c h
a r e
d r a w n , a t random, by t h e o p e r a t o r o f
s a i d
game and w h i c h
a r e p l a c e d by
t h e
p e r s o n s
p l a y i n g , o r p a r t i c i p a t i n g i n s a i d game, on
c a r d s , o r s h e e t s o f p a p e r , w h i c h
c o n t a i n ,
o r
s e t o u t , numbered
s p a c e s , upon
w h i c h
s a i d d e s i g n a t e d numbers o r s y m b o l s , may
be
p l a c e d
by
t h e
p e r s o n s
p l a y i n g
o r
p a r t i c i p a t i n g i n s a i d game."'"
642 So. 2d a t 436-37.
I n
B a r r e t t
v.
S t a t e ,
705
So.
2d
529
( A l a . C r i m .
App.
1 9 9 6 ) ,
t h e C o u r t o f C r i m i n a l A p p e a l s
c o n c l u d e d t h a t
a game
c a l l e d " U - P i c k - E m "
1 1 was
" c l e a r l y n o t t h e game 'commonly known
1 1 " U - P i c k - E m " was p l a y e d i n t h e f o l l o w i n g m a n n e r :
35
1080805 a n d
1080806
as b i n g o . '
On
t h e
c o n t r a r y ,
[ t h a t c o u r t ]
a g r e e [ d ] w i t h
t h e
s t a t e m e n t s
by
an
e m p l o y e e
o f
t h e
P a l a c e
and
a l s o
by
t h e
a p p e l l a n t h i m s e l f , when a s k e d by
an
i n v e s t i g a t o r how
t o
p l a y
" E a c h p l a y e r p a y s one
d o l l a r f o r e a c h c h a n c e t o
w i n .
I n e x c h a n g e
t h e
p l a y e r
i s g i v e n
a c a r d
c o n t a i n i n g
t h e numbers 1 t h r o u g h 75.
F o r
two
d o l l a r s a
p l a y e r
g e t s two
c a r d s ; t h r e e d o l l a r s , t h r e e c a r d s , e t c .
The
p l a y e r t h e n c h o o s e s e i g h t numbers on e a c h c a r d
a n d
g i v e s
t h e
c a r d s
o v e r
t o
a
c o m p u t e r
o p e r a t o r
who
f e e d s
t h e
numbers
i n t o
a
c o m p u t e r .
I n
t h e
a l t e r n a t i v e ,
t h e
p l a y e r
c a n
e l e c t
t o
l e t
t h e
c o m p u t e r a u t o m a t i c a l l y c h o o s e t h e e i g h t numbers
p e r
c a r d .
R e g a r d l e s s o f w h i c h m e t h o d i s s e l e c t e d ,
t h e
c o m p u t e r p r i n t s a s l i p o f p a p e r c o n t a i n i n g t h e
e i g h t
numbers a n d
t h a t p a p e r i s g i v e n
t o t h e p l a y e r .
The
s l i p
o f
p a p e r
c o n t a i n s
rows
o f
numbers
w h i c h
c o r r e s p o n d t o t h e numbers s e l e c t e d .
I f t h e
p l a y e r
p a i d one
d o l l a r t h e p a p e r c o n t a i n s
one
row
o f
e i g h t
n u m b e r s ;
two
d o l l a r s r e s u l t s i n two
rows o f
e i g h t
n u m b e r s ; e t c .
D e p e n d i n g on t h e number b e t w e e n 1
a n d
75
c h o s e n ,
t h e
numbers h a v e
a
l e t t e r
a t t a c h e d
t o
them.
The
l e t t e r
i s a
'B,'
' I , ' 'N,'
'G,'
o r
'O,'
d e p e n d i n g on w h e r e t h e number w o u l d
f a l l on a common
b i n g o c a r d . A f t e r e a c h p l a y e r has
t h e
s l i p o f p a p e r ,
t h e
a c t u a l p l a y i n g commences.
An
a n n o u n c e r
c a l l s
o u t 20 n u m b e r s ; i f any
p l a y e r m a t c h e s e a c h o f
e i g h t
numbers i n any g i v e n row,
t h a t p l a y e r w i n s t h e
g r a n d
p r i z e .
I f no
one m a t c h e s a l l e i g h t numbers
d u r i n g
t h e
f i r s t 20
c a l l s , t h e a n n o u n c e r c o n t i n u e s
t o
c a l l
numbers
u n t i l
t h e
f i r s t
p e r s o n
t o
m a t c h
e i g h t
numbers i n one
row
c a l l s b i n g o .
I f t h e w i n n e r d o e s
n o t m a t c h w i t h i n t h e
f i r s t 20 n u m b e r s , t h e p r i z e i s
c a l l e d
a c o n s o l a t i o n p r i z e a n d
i s v e r y
s m a l l when
c o m p a r e d t o
t h e
g r a n d p r i z e .
A d d i t i o n a l l y , i f
no
one
w i n s
t h e
g r a n d p r i z e , t h a t
p r i z e i s
i n c r e a s e d
a n d
c a r r i e d f o r w a r d
t o a n o t h e r
n i g h t . "
705
So.
2 d
a t
531.
36
1080805 a n d 1080806
t h e
game,
t h a t
t h e game
[was] p l a y e d
' l i k e
t h e
F l o r i d a
l o t t e r y . ' "
705 So. 2d a t 532.
I n so r u l i n g ,
t h e C o u r t o f
C r i m i n a l A p p e a l s
f i r s t
n o t e d t h a t "Amendment No. 508 a l l o w s
o n l y a n a r r o w
e x c e p t i o n t o t h e s t a t e ' s
c l e a r
p u b l i c
p o l i c y
a g a i n s t
l o t t e r i e s and t h e A l a b a m a c o n s t i t u t i o n ' s
p r o h i b i t i o n
o f l o t t e r i e s . "
705 So. 2d a t 531. I t t h e n r e a s o n e d t h a t "no
e x p r e s s i o n i n [ t h e C i t y o f P i e d m o n t ' s ]
o r d i n a n c e [on b i n g o
1 2 ]
c a n be c o n s t r u e d t o i n c l u d e a n y t h i n g o t h e r t h a n t h e o r d i n a r y
game o f b i n g o . "
705 So. 2d a t 532.
I n so r u l i n g , t h e C o u r t
o f C r i m i n a l A p p e a l s
i m p l i c i t l y
r u l e d
t h a t t h e t y p e o f b i n g o
p e r m i t t e d b y Amendment No. 508, a n d , t h e r e f o r e , p r e s u m a b l y b y
t h e o t h e r amendments w i t h t h e same w o r d i n g and e f f e c t , was i n
f a c t t h e t r a d i t i o n a l game o f b i n g o .
O t h e r
j u r i s d i c t i o n s
a l s o
d i s c u s s what c o n s t i t u t e s t h e
game commonly known as b i n g o .
I n C i t a t i o n
B i n g o , L t d . v .
O t t e n ,
121 N.M.
2 0 5 , 910 P.2d 281
( 1 9 9 5 ) , t h e New
M e x i c o
Supreme C o u r t o b s e r v e d t h a t New M e x i c o ' s B i n g o and R a f f l e A c t
p e r m i t t e d
l i c e n s e d o r g a n i z a t i o n s t o " c o n d u c t games o f c h a n c e
commonly
known
as
' b i n g o '
o r
' r a f f l e s '
f o r e d u c a t i o n a l ,
c h a r i t a b l e ,
p a t r i o t i c ,
r e l i g i o u s ,
o r
p u b l i c - s p i r i t e d
1 2 T h e
r e f e r e n c e d o r d i n a n c e i s t h e same a s t h a t
q u o t e d
a b o v e f r o m
E v a n s .
37
1080805 a n d 1080806
p u r p o s e s . "
121 N.M. a t 207, 910 P.2d a t 2 8 3 .
T h a t
C o u r t
c o n c l u d e d t h a t a game c a l l e d "Power B i n g o , " w h i c h i n v o l v e d t h e
use o f e l e c t r o n i c d e v i c e s t o p l a y t h e
game, d i d n o t c o n s t i t u t e
t h e game "commonly known as ' b i n g o . ' "
I n so r u l i n g , t h e O t t e n
C o u r t
n o t e d :
"Power B i n g o does n o t c h a n g e t h e r u l e s o f t h e game,
b u t
i t does c h a n g e t h e m e t h o d o f p l a y .
When a
l e t t e r
a n d number
a r e c a l l e d ,
Power
B i n g o
u s e r s
s i m p l y e n t e r t h e t w o - d i g i t number
i n t o
t h e i r
d e v i c e
u s i n g
t h e k e y p a d .
F o r e x a m p l e , i f t h e
c a l l e r
a n n o u n c e s
'B-6,'
Power
B i n g o
u s e r s
s i m p l y
p r e s s
'06.'
The u n i t
t h e n c o m p a r e s t h e number
e n t e r e d
w i t h e a c h o f i t s c u r r e n t l y
s t o r e d numbers,
p l a c i n g
t h e
e n t e r e d number i n memory i f t h e r e i s a m a t c h .
The
u n i t
a l s o
c o m p a r e s a n y p a t t e r n
f o r m e d b y
a l l
numbers
so
s t o r e d
a g a i n s t
t h e
p r e - e s t a b l i s h e d
w i n n i n g p a t t e r n t o s e e i f
t h e r e i s
a m a t c h . I f t h e r e
i s , t h e u n i t
i m m e d i a t e l y
n o t i f i e s t h e u s e r .
Thus
Power B i n g o
d i f f e r s
f r o m
t r a d i t i o n a l b i n g o i n t h a t
p l a y e r s o f Power B i n g o
c a n n o t s e e t h e c a r d s
t h e y
h a v e p u r c h a s e d , n e e d n o t l o c a t e a n d mark numbers on
t h e i r
c a r d s ,
a n d n e e d n o t v i s u a l l y
i d e n t i f y
any
w i n n i n g
p a t t e r n . "
121 N.M. a t 2 0 6 - 0 7 , 910 P.2d a t 2 8 2 - 8 3 .
The C o u r t
f u r t h e r
c o n t r a s t e d "Power B i n g o " w i t h
t r a d i t i o n a l b i n g o , as f o l l o w s :
" B e f o r e t h e a d v e n t o f t h e Power B i n g o u n i t , t h e game
o f
b i n g o was p l a y e d
u s i n g
o n l y p a p e r o r h a r d b o a r d
c a r d s . E a c h p a p e r
c a r d
c o n s i s t s o f a
f i v e - b y - f i v e
m a t r i x c o n t a i n i n g t w e n t y - f o u r numbered s p a c e s a n d a
c e n t e r s p a c e m a r k e d
' f r e e . ' Numbers b e t w e e n one a n d
f i f t e e n
i n c l u s i v e
a p p e a r
i n t h e
f i r s t
c o l u m n ,
numbers
b e t w e e n
s i x t e e n a n d t h i r t y a p p e a r i n t h e
s e c o n d
c o l u m n ,
numbers
b e t w e e n
t h i r t y - o n e
a n d
f o r t y - f i v e
a p p e a r i n t h e
t h i r d
c o l u m n ,
numbers
38
1080805 a n d
1080806
b e t w e e n
f o r t y - s i x
and
s i x t y
a p p e a r
i n
t h e
f o u r t h
c o l u m n ,
and
f i n a l l y ,
numbers b e t w e e n s i x t y - o n e
and
s e v e n t y - f i v e a p p e a r i n t h e
f i f t h c o l u m n . E a c h c o l u m n
i s
d e s i g n a t e d
by
a
l e t t e r
o f t h e w o r d
' b i n g o , '
t h e
f i r s t c o l u m n d e s i g n a t e d
as
'B'
and
t h e
f i f t h
c o l u m n
as
'O.'
D u r i n g t h e game, t h e
c a l l e r draws f r o m a b i n
one
p i n g pong b a l l e v e r y t w e l v e
t o f o u r t e e n
s e c o n d s
and
a n n o u n c e s
t o
t h e
h a l l
t h e
l e t t e r
and
number
a p p e a r i n g
on t h a t b a l l .
The
l e t t e r i s a n n o u n c e d
o n l y
t o a i d p l a y e r s
i n f i n d i n g t h e
c o r r e c t c o l u m n . A f t e r
t h e
l e t t e r
and
number
a r e
a n n o u n c e d ,
e a c h
p l a y e r
must c h e c k a l l c a r d s
he
o r she
i s p l a y i n g t o see i f
t h e r e
a r e
any
m a t c h e s .
I f
t h e r e
a r e ,
t h e
p l a y e r
marks e a c h m a t c h u s i n g
an
i n k d a u b e r . As
e a c h mark
i s
made,
t h e
p l a y e r
must
d e t e r m i n e
w h e t h e r
i t
c o m p l e t e s
a p a t t e r n
t h a t m a t c h e s a
p r e - e s t a b l i s h e d
w i n n i n g
p a t t e r n .
I f i t d o e s ,
t h e
p l a y e r must
c a l l
o u t
' b i n g o '
b e f o r e
t h e
n e x t
l e t t e r
and
number
a r e
a n n o u n c e d . "
121 N.M.
a t 206,
910
P.2d
a t 282.
See
a l s o , e.g.,
B i n g o Bank,
I n c . v. S t r o m , 268
S.C.
498,
501,
234
S.E.2d 881,
883
(1977)
( e x p l a i n i n g t h a t " [ t ] h e game o f b i n g o i s p l a y e d by t h e use
o f
a
' C a l l e r '
who
a n n o u n c e s ,
one
a t
a
t i m e ,
numbers drawn
a t
random f r o m a c o n t a i n e r
i n t o w h i c h has
b e e n p l a c e d
numbered
b a l l s
o r
o b j e c t s
f o r
t h a t
p u r p o s e " ) ;
F l a .
S t a t .
Ann.
§
8 4 9 . 0 9 3 1 ( 1 ) ( a )
("'Bingo
game'
means
and
r e f e r s
t o
t h e
a c t i v i t y , commonly known as ' b i n g o , '
i n w h i c h p a r t i c i p a n t s pay
a sum
o f money f o r t h e
use
o f one
o r more b i n g o c a r d s . When
t h e game commences, numbers a r e drawn by c h a n c e , one
by
one,
and a n n o u n c e d . The
p l a y e r s c o v e r o r mark t h o s e numbers on
t h e
39
1080805 and
1080806
b i n g o c a r d s w h i c h t h e y have p u r c h a s e d u n t i l a p l a y e r
r e c e i v e s
a
g i v e n
o r d e r
o f
numbers
i n
s e q u e n c e
t h a t
has
b e e n
p r e a n n o u n c e d f o r t h a t p a r t i c u l a r game. T h i s
p l a y e r
c a l l s
o u t
' b i n g o '
and
i s
d e c l a r e d
t h e
w i n n e r
o f
a
p r e d e t e r m i n e d
p r i z e . " ) .
I n
S t a t e
ex
r e l . S t e p h a n v.
P a r r i s h , 256
Kan.
746,
887
P.2d
127
( 1 9 9 4 ) ,
t h e
K a n s a s Supreme C o u r t
was
c h a r g e d
w i t h
d e c i d i n g w h e t h e r " i n s t a n t b i n g o " as p e r m i t t e d
by an a c t o f
t h e
K a n s a s L e g i s l a t u r e c o n s t i t u t e d t h e
k i n d o f b i n g o p e r m i t t e d
by
A r t .
15,
§ 3a,
o f t h e K a n s a s C o n s t i t u t i o n .
A r t i c l e
15,
§
3,
p r o v i d e s
t h a t " [ l ] o t t e r i e s and t h e s a l e o f l o t t e r y t i c k e t s a r e
f o r e v e r
p r o h i b i t e d . "
A t
t h e
t i m e P a r r i s h was
d e c i d e d ,
A r t .
15,
§ 3a,
p r o v i d e d :
" N o t w i t h s t a n d i n g
t h e p r o v i s i o n s o f s e c t i o n 3 o f
a r t i c l e
15
o f
t h e
c o n s t i t u t i o n
o f
t h e
s t a t e
o f
K a n s a s t h e l e g i s l a t u r e may
r e g u l a t e , l i c e n s e and
t a x
t h e
o p e r a t i o n
o r
c o n d u c t
o f games
o f
' b i n g o , '
as
d e f i n e d
by
l a w ,
by
bona
f i d e n o n p r o f i t
r e l i g i o u s ,
c h a r i t a b l e ,
f r a t e r n a l ,
e d u c a t i o n a l
and
v e t e r a n s
o r g a n i z a t i o n s . "
1
3
The
K a n s a s
L e g i s l a t u r e
d e f i n e d
" b i n g o "
as
f o l l o w s
i n
K.S.A.
7 9 - 4 7 0 1 ( a ) ,
o r i g i n a l l y
e n a c t e d
i n
1975
as
e n a b l i n g
l e g i s l a t i o n
f o r A r t .
15,
§
3a:
1
3 A r t i c l e
15,
§
3 a ,
has
s i n c e
b e e n amended
t o
i n c l u d e
" i n s t a n t
b i n g o . "
40
1080805 a n d 1080806
" ' B i n g o ' means a game i n
w h i c h e a c h p a r t i c i p a n t must
p a y a c h a r g e a n d a p r i z e o r p r i z e s a r e a w a r d e d t o
t h e
w i n n e r
o r w i n n e r s
i n w h i c h
e a c h
p a r t i c i p a n t
r e c e i v e s one o r more c a r d s o r i n w h i c h a c a r d o r
c a r d s a r e i n c l u d e d i n a p a p e r game p r o g r a m b o o k l e t
e a c h o f w h i c h i s
m a r k e d o f f
i n t o 25 s q u a r e s a r r a n g e d
i n
f i v e
h o r i z o n t a l
rows o f f i v e
s q u a r e s
e a c h a n d
f i v e
v e r t i c a l rows o f f i v e
s q u a r e s e a c h , w i t h
e a c h
s q u a r e
b e i n g
d e s i g n a t e d
by
number,
l e t t e r
o r
c o m b i n a t i o n o f numbers a n d l e t t e r s ,
a n d o n l y t h e
c e n t e r s q u a r e d e s i g n a t e d w i t h t h e w o r d
' f r e e '
w i t h
no
two
c a r d s
b e i n g
i d e n t i c a l ,
w i t h
t h e
p l a y e r s
c o v e r i n g
s q u a r e s
as t h e o p e r a t o r o f
s u c h
game
a n n o u n c e s a number, l e t t e r o r c o m b i n a t i o n o f numbers
and
l e t t e r s
a p p e a r i n g on an
o b j e c t
s e l e c t e d
by
c h a n c e ,
e i t h e r
m a n u a l l y
o r m e c h a n i c a l l y f r o m
a
r e c e p t a c l e i n
w h i c h h a v e b e e n p l a c e d o b j e c t s b e a r i n g
n u m b e r s ,
l e t t e r s
o r c o m b i n a t i o n s o f numbers a n d
l e t t e r s
c o r r e s p o n d i n g
t o
t h e
s y s t e m
u s e d f o r
d e s i g n a t i n g t h e s q u a r e s ,
w i t h t h e w i n n e r o f e a c h
game
b e i n g t h e p l a y e r
o r p l a y e r s
f i r s t
p r o p e r l y
c o v e r i n g a p r e d e t e r m i n e d a n d a n n o u n c e d
p a t t e r n o f
s q u a r e s upon t h e c a r d o r a c a r d w h i c h i s i n c l u d e d i n
a
p a p e r
game p r o g r a m
b o o k l e t b e i n g u s e d by
s u c h
p l a y e r o r p l a y e r s . "
I n 1993,
t h e
K a n s a s L e g i s l a t u r e amended K.S.A. 79-4701 t o
i n c l u d e
w i t h i n
t h e d e f i n i t i o n
o f " b i n g o " what
i t c a l l e d
" i n s t a n t b i n g o . "
S p e c i f i c a l l y ,
" i n s t a n t b i n g o " was d e f i n e d as
"a game: (1) I n w h i c h e a c h
p a r t i c i p a n t must p a y a
c h a r g e ; (2) i n w h i c h a p r i z e o r p r i z e s a r e a w a r d e d
t o
t h e w i n n e r
o r
w i n n e r s ;
(3) i n w h i c h
e a c h
p a r t i c i p a n t r e c e i v e s one o r more d i s p o s a b l e
t i c k e t s
w h i c h
a c c o r d a p a r t i c i p a n t
an o p p o r t u n i t y t o w i n
s o m e t h i n g
o f
v a l u e
by
o p e n i n g ,
d e t a c h i n g
o r
o t h e r w i s e r e m o v i n g a c o v e r f r o m t h e t i c k e t t o r e v e a l
a
s e t
o f
numbers,
l e t t e r s ,
s y m b o l s
o r
c o n f i g u r a t i o n s ,
o r any c o m b i n a t i o n
t h e r e o f ;
(4)
w h i c h i s
c o n d u c t e d b y a l i c e n s e e u n d e r
t h i s a c t ; (5)
41
1080805 a n d 1080806
t h e c o n d u c t o f w h i c h must be i n t h e p r e s e n c e o f t h e
p a r t i c i p a n t s ;
and (6) w h i c h
d o e s n o t u t i l i z e
any
d i c e , n o r m a l p l a y i n g c a r d s o r s l o t
m a c h i n e s . "
K.S.A.
7 9 - 4 7 0 1 ( c ) .
The
a t t o r n e y
g e n e r a l
o f
K a n s a s
c h a l l e n g e d
t h e
c o n s t i t u t i o n a l i t y o f K.S.A. 7 9 - 4 7 0 1 , as amended, a r g u i n g t h a t
" t h e p h r a s e 'games o f b i n g o , ' as u s e d i n A r t . 15, §
3a, c a n n o t be d e f i n e d b y t h e l e g i s l a t u r e t o i n c l u d e
i n s t a n t
b i n g o .
[The S t a t e ] a r g u e s
t h a t
a b s e n t an
amendment
t o t h e
c o n s t i t u t i o n ,
i n s t a n t
b i n g o i s
u n c o n s t i t u t i o n a l .
I n e s s e n c e , t h e S t a t e ' s a r g u m e n t
i s
t h a t
i n s t a n t b i n g o i s n o t a 'game o f b i n g o ' as
v o t e r s t h o u g h t o r i n t e n d e d when a d o p t i n g A r t . 15, §
3a, b u t i n s t e a d i s a n o t h e r f o r m o f l o t t e r y ,
t a g g e d
as
a
'game
o f
b i n g o '
b y
t h e
l e g i s l a t u r e ,
b u t
p r o h i b i t e d u n d e r A r t . 15, § 3 o f t h e c o n s t i t u t i o n . "
P a r r i s h , 256 K a n . a t 7 5 1 - 5 2 , 887 P.2d a t 131.
The s e c r e t a r y o f t h e K a n s a s D e p a r t m e n t o f Revenue was t h e
d e f e n d a n t i n t h e a c t i o n and c o n t e n d e d
t h a t
" t h e
s p e c i f i c
l a n g u a g e
o f
t h e
c o n s t i t u t i o n a l
amendment
... p r o v i d e s f o r 'games o f " b i n g o , " as
d e f i n e d
by
l a w . '
She
a s s e r t s
t h a t
t h e
p l a i n
l a n g u a g e o f A r t . 15, § 3a s p e c i f i c a l l y d e l e g a t e s t h e
power t o d e f i n e 'games o f b i n g o ' t o t h e l e g i s l a t u r e .
F u r t h e r m o r e ,
she
m a i n t a i n s
t h a t
t h e
l a n g u a g e
r e c o g n i z e s
t h a t more t h a n one t y p e o f b i n g o game
e x i s t s by i t s u s e o f t h e p l u r a l 'games o f b i n g o . ' "
256 K a n . a t 752, 887 P.2d a t 131.
The
l a t t e r
a r g u m e n t i s
s i m i l a r t o one o f t h e a r g u m e n t s made b y C o r n e r s t o n e and FTV i n
t h i s
c a s e .
42
1080805 a n d 1080806
The
P a r r i s h C o u r t b e g a n i t s d i s c u s s i o n by o b s e r v i n g t h a t
i t was u n d i s p u t e d t h a t when t h e p e o p l e a d o p t e d A r t . 15, § 3 a ,
t h e y were n o t v o t i n g f o r " i n s t a n t b i n g o , " b u t r a t h e r
" b i n g o , "
much a t i t was
d e f i n e d
i n K.S.A. 7
9 - 4 7 0 1 ( a ) .
The
P a r r i s h
C o u r t t h e n
n o t e d :
" A l l p a r t i e s t o t h i s a p p e a l r e a d i l y c o n c e d e (1) t h a t
i n s t a n t b i n g o i s a l o t t e r y u n d e r A r t . 15, § 3; (2)
t h a t e x c e p t as p r o v i d e d i n A r t . 15, §§ 3 a , 3b, and
3 c ,
a l l
l o t t e r i e s
a r e p r o h i b i t e d ;
and (3) t o be
c o n s t i t u t i o n a l ,
i n s t a n t b i n g o must
f a l l
w i t h i n t h e
t e r m 'games o f ' b i n g o , ' as d e f i n e d by l a w ' c o n t a i n e d
i n A r t . 15, § 3 a . "
1 4
256 K a n . a t 754, 887 P.2d a t 133. The P a r r i s h C o u r t
o b s e r v e d
t h a t t h e s o - c a l l e d
" i n s t a n t b i n g o " was n o t h i n g more t h a n a
p u l l - t a b game.
T h e r e f o r e , i t
c o n s i d e r e d t h e i s s u e
p r e s e n t e d
by t h e c a s e t o b e : " [ W ] h e t h e r
t h e game o f p u l l
t a b s ,
now
c a l l e d
i n s t a n t
b i n g o
b y t h e
l e g i s l a t u r e ,
h a s
s u f f i c i e n t
s i m i l a r c h a r a c t e r i s t i c s t o t r a d i t i o n a l b i n g o , now c a l l e d
c a l l
b i n g o , t o be c o n s i d e r e d a game o f b i n g o w i t h i n A r t . 15, § 3 a . "
256 K a n . a t 755, 887 P.2d a t 133.
1 4 T h i s
p r i n c i p l e i s q u i t e
s i m i l a r t o t h e p r i n c i p l e t h a t
as u n d e r s t o o d b y t h a t amendment i n o r d e r t o be
l e g a l .
b i n g o i n t h i s s t a t e i s
a l o
Town o f W h i t e H a l l b y
v i r t
e l e c t r o n i c g a m i n g m a c h i n e s
43
1080805 a n d 1080806
A t t h e o u t s e t , t h e P a r r i s h C o u r t a n a l y z e d t h e i s s u e b y
e m p h a s i z i n g
t h a t " t h e o v e r r i d i n g
p r o h i b i t i o n o f t h e K a n s a s
C o n s t i t u t i o n i s t h a t
' [ l ] o t t e r i e s
a n d t h e s a l e o f
l o t t e r y
t i c k e t s a r e f o r e v e r
p r o h i b i t e d . '
A r t .
15, § 3."
256 K a n .
755, 887 P.2d a t 1 3 3 .
The K a n s a s Supreme C o u r t q u o t e d
f r o m
one o f i t s p r e v i o u s c a s e s , i n w h i c h i t
h a d o b s e r v e d :
" ' A l t h o u g h
t h i s
c o n s t i t u t i o n a l
p r o v i s i o n
was
u n d o u b t e d l y
b o r r o w e d
f r o m
s t a t e s p r e v i o u s l y a d m i t t e d t o s t a t e h o o d , i t
i s
a p p a r e n t
t h a t
t h e
f r a m e r s
o f t h e
c o n s t i t u t i o n o f t h i s s t a t e
c o n s c i e n t i o u s l y
d e t e r m i n e d
t h a t
p r o h i b i t i n g
l o t t e r i e s
f o r e v e r was a method o f p r o m o t i n g a
s o u n d
b a s i s f o r
t h e w e l f a r e a n d g r o w t h o f
t h i s
s t a t e .
S i n c e i t s a d o p t i o n , many
e f f o r t s
h a v e b e e n made b y p e r s o n s a n d o r g a n i z a t i o n s
t o
c i r c u m v e n t
t h i s
c o n s t i t u t i o n a l
p r o v i s i o n . S u c h e f f o r t s have g e n e r a l l y b e e n
made f o r p r o f i t ,
s e e k i n g t o e l i c i t money
f r o m
t h o s e who
c a n n o t
r e f r a i n
f r o m t h e
i n s t i n c t i v e w e a k n e s s o f h u m a n i t y t o g a m b l e .
" ' T h i s
c o u r t h a s s t e a d f a s t l y
a d h e r e d
t o t h e c o n s t i t u t i o n a l p r o v i s i o n b y s t r i k i n g
down s u c h e f f o r t s
'"
256 K a n . a t 755, 887 P.2d a t 133 ( q u o t i n g S t a t e v . N e l s o n , 210
Kan. 439, 444, 502 P.2d 8 4 1 , 845 ( 1 9 7 2 ) ) .
The P a r r i s h C o u r t n o t e d t h a t t h e r e a r e s e v e r a l
v a r i a t i o n s
o f t h e
game o f b i n g o a n d s t a t e d t h a t t h e d e f e n d a n t s
a t t e m p t e d
44
1080805 a n d 1080806
t o u s e t h a t
f a c t as e v i d e n c e
t h a t
A r t . 15, § 3 a , was n o t
m e r e l y
r e f e r r i n g t o t r a d i t i o n a l b i n g o .
The C o u r t
r e s p o n d e d :
"We
a g r e e
w i t h
t h e
S e c r e t a r y
a n d
t h e
I n t e r v e n o r ,
[ 1 5 ]
a n d t h e S t a t e
d o e s
n o t
s e r i o u s l y
c o n t e n d o t h e r w i s e , t h a t t h e t e r m s
'games o f b i n g o '
i n A r t . 15, § 3a may l o g i c a l l y be c o n s t r u e d t o mean
more t h a n t h e t r a d i t i o n a l game o f b i n g o
f a m i l i a r t o
n e a r l y
e v e r y o n e
a n d as o r i g i n a l l y d e f i n e d i n
t h e
B i n g o
A c t . However, we
t h i n k
i t i s b e y o n d
f a i r
d i s p u t e
t h a t games o f b i n g o w h i c h
d e p a r t f r o m t h e
g e n e r a l u n d e r s t a n d i n g o f t r a d i t i o n a l b i n g o must
f a l l
w i t h i n t h e same g e n e r a l c a t e g o r y o f games a n d h a v e
t h e b a s i c c h a r a c t e r i s t i c s common t o a l l
s u c h games."
256 K a n . a t 756-57, 887 P.2d a t 134 ( e m p h a s i s
a d d e d ) .
The
P a r r i s h
C o u r t r e a s o n e d
t h a t
" [ a ] s we have no
c l e a r
p r e c e d e n t t o g u i d e u s , we a r e l i m i t e d t o d e t e r m i n i n g w h e t h e r
i n s t a n t
b i n g o
c o n t a i n s enough
o f t h e b a s i c
e l e m e n t s
o r
c h a r a c t e r i s t i c s o f b i n g o t o be l a w f u l l y d e f i n e d as a game o f
b i n g o . "
256 K a n . a t 7 6 1 , 887 P.2d a t 136.
I t p r o c e e d e d t o
r e j e c t t h e
common c h a r a c t e r i s t i c s o f t h e
game p u t f o r t h by
t h e
1 5 T h e i n t e r v e n o r / d e f e n d a n t
was L o d g e No. 5 5 5 , L o y a l O r d e r
o f Moose, p r e s u m a b l y b e c a u s e " i n s t a n t b i n g o " was p l a y e d a t t h e
l o d g e .
45
1080805 a n d 1080806
i n t e r v e n o r ,
1
6 f i n d i n g "none o f them t o be a t r u e
c h a r a c t e r i s t i c
i n h e r e n t i n b i n g o o r s i m i l a r games."
I d .
The P a r r i s h
C o u r t t h e n e x p l a i n e d what i t b e l i e v e d t o be
t h e m a j o r
c h a r a c t e r i s t i c s o f t r a d i t i o n a l b i n g o and
c o n t r a s t e d
them w i t h t h e game o f " i n s t a n t b i n g o " a t i s s u e :
" I n r e v i e w i n g t h e numerous d e f i n i t i o n s o f b i n g o
and
b i n g o - t y p e
games
s u b m i t t e d
by
i n d u s t r i o u s
c o u n s e l ,
t h e r e a r e d e f i n i t e
c h a r a c t e r i s t i c s
common
t o
and
i n h e r e n t
i n
b i n g o - t y p e
games.
A l l
d e f i n i t i o n s
i n c l u d e
t h e r e q u i r e m e n t
o f a c a r d
o r
p a p e r
u t i l i z i n g
numerous numbers
w h i c h
a r e t o be
c o v e r e d o r m a r k e d i f and when one o f t h e numbers i s
drawn by l o t and a n n o u n c e d b y a c a l l e r o r s e l e c t e d
t h r o u g h some o t h e r s i m i l a r m e t h o d .
B i n g o - t y p e games
c o n t e m p l a t e
a g r o u p
a c t i v i t y ,
o f t e n
s o c i a l ,
w i t h
s e v e r a l p a r t i c i p a n t s .
The o b j e c t o f t h e game i s t o
be t h e f i r s t t o c o m p l e t e t h e p a t t e r n p r e s c r i b e d f o r
t h a t
p a r t i c u l a r
b i n g o - t y p e game
f r o m
t h e numbers
c a l l e d .
I n s t a n t
b i n g o
u t i l i z e s
a s m a l l
p u l l t a b
c a r d
where
t h e
a c t i v i t y may
be
o n l y
one
on
one
b e t w e e n t h e p l a y e r and t h e s e l l e r o f t h e c a r d .
As
s u c h ,
i t does
n o t h a v e
t h e
g r o u p
p a r t i c i p a t i o n
r e q u i r e d o f b i n g o - t y p e
games.
" I n b i n g o , e a c h game l a s t s s e v e r a l m i n u t e s
w i t h
t h e p a r t i c i p a n t s h o p i n g t o be t h e f i r s t t o c o m p l e t e
a w i n n i n g l i n e on t h e i r c a r d s .
I n i n s t a n t b i n g o t h e
r e s u l t i s i n s t a n t a n e o u s w i t h t h e p u l l i n g open o f t h e
t a b o r t a b s w h i c h
w i l l
r e v e a l w h e t h e r t h e p l a y e r has
won o r l o s t .
The b a s i c e l e m e n t s o r
c h a r a c t e r i s t i c s
o f games o f b i n g o , as g e n e r a l l y u n d e r s t o o d and as
1 6 T h e
i n t e r v e n o r ' s
l i s t
o f
c h a r a c t e r i s t i c s
i n c l u d e d :
" [ B ] o t h games i n v o l v e c a r d s , t h e amount t h a t may be w a g e r e d i s
r e g u l a t e d , t h e t y p e s o f o r g a n i z a t i o n s t h a t c a n p a r t i c i p a t e a r e
s i m i l a r , t h e p r o c e e d s go t o a n o n p r o f i t e n t i t y , a n d b o t h a r e
s u b j e c t t o t a x a t i o n . "
256 K a n . a t 761, 887 P . 2 d a t 136.
46
1080805 a n d 1080806
d e f i n e d
by
k n o w l e d g e a b l e
a u t h o r i t i e s ,
a r e
t o t a l l y
l a c k i n g
i n i n s t a n t
b i n g o .
I n
f a c t ,
i n s t a n t
b i n g o
has
c h a r a c t e r i s t i c s
f a r
more
s i m i l a r
t o
s l o t
m a c h i n e s ,
p u n c h b o a r d s ,
and
o t h e r
f o r m s
o f
g a m i n g
r a t h e r t h a n t o b i n g o - t y p e games."
256
Kan.
a t
7
61
,
887
P.2d
a t
136-37
( e m p h a s i s
a d d e d ) .
A c c o r d i n g l y , t h e K a n s a s Supreme C o u r t
c o n c l u d e d :
" W h i l e
we
r e c o g n i z e
t h e
b r o a d
power
o f
t h e
l e g i s l a t u r e
u n d e r
A r t .
15,
§
3a,
we
a r e
o f
t h e
o p i n i o n
t h a t
i n
d e f i n i n g
games
o f
b i n g o
s u c h
d e f i n i t i o n must b e a r
a r e a s o n a b l e and r e c o g n i z a b l e
s i m i l a r i t y
t o
t h e many
d e f i n i t i o n s
o f
b i n g o
and
o t h e r b i n g o - t y p e games f u r n i s h e d by c o u n s e l and
t o
t h e common u n d e r s t a n d i n g o f t h e t e r m by t h e
p e o p l e
o f K a n s a s .
We
c o n c l u d e
t h a t t h e a t t e m p t
t o d e f i n e
p u l l t a b games as games o f b i n g o
f a i l s t h e n e c e s s a r y
t e s t
and
t h a t
t h e
l e g i s l a t u r e
has
o v e r s t e p p e d i t s
b o u n d s
w i t h
t h e
e n a c t m e n t
o f
t h e
i n s t a n t
b i n g o
amendments.
The
d e f i n i t i o n
o f
i n s t a n t
b i n g o
i n
K.S.A.
1993
Supp.
7 9 - 4 7 0 1 ( c )
e x c e e d s
t h e
power
g r a n t e d t h e l e g i s l a t u r e t o d e f i n e games o f b i n g o i n
A r t .
15, § 3a and i s u n c o n s t i t u t i o n a l . "
256 Kan.
a t 762,
887
P.2d
a t 137
( e m p h a s i s
a d d e d ) .
See
a l s o
D e p a r t m e n t o f T e x a s V e t e r a n s
o f F o r e i g n Wars o f t h e
U n i t e d
S t a t e s v. D o r n i n g ,
(CV #07-S-2144-NE, S e p t .
28, 2009)
(N.D.
A l a .
2
0
0
9 ) ( u n r e p o r t e d d e c i s i o n ) ( c i t i n g
B a r b e r
v.
J e f f e r s o n
C o u n t y
R a c i n g A s s ' n ,
I n c . , 960
So.
2d 599
( A l a . 2 0 0 7 ) ,
a n d
a g r e e i n g i n d i c t u m t h a t " t h e e l e c t r o n i c m a c h i n e s a t i s s u e i n
t h i s
c a s e a r e s a i d t o p r o v i d e o n l y an e n t e r t a i n i n g means o f
47
1080805 a n d 1080806
r e v e a l i n g t h e r e s u l t s o f an e l e c t r o n i c b i n g o game c o n d u c t e d i n
t h e i n n e r w o r k i n g s o f a c o m p u t e r
s e r v e r " ) .
B a s e d on t h e f o r e g o i n g , we must c o n c l u d e
t h a t t h e t e r m
" b i n g o " as u s e d i n
Amendment No. 674 was i n t e n d e d t o r e f e r e n c e
t h e
game commonly o r
t r a d i t i o n a l l y
known as b i n g o .
The
c h a r a c t e r i s t i c s o f t h a t game i n c l u d e t h e f o l l o w i n g :
1.
E a c h
p l a y e r
u s e s one o r more
c a r d s
w i t h
s p a c e s a r r a n g e d i n f i v e c o l u m n s a n d f i v e r o w s ,
w i t h
an
a l p h a n u m e r i c o r s i m i l a r
d e s i g n a t i o n
a s s i g n e d t o
e a c h s p a c e .
2.
A l p h a n u m e r i c o r s i m i l a r
d e s i g n a t i o n s a r e
r a n d o m l y drawn a n d a n n o u n c e d one by o n e .
3.
I n o r d e r
t o p l a y ,
e a c h
p l a y e r
must p a y
a t t e n t i o n t o t h e v a l u e s
a n n o u n c e d ; i f one o f t h e
v a l u e s
m a t c h e s
a
v a l u e
on one o r more
o f t h e
p l a y e r ' s
c a r d s , t h e p l a y e r must
p h y s i c a l l y a c t b y
m a r k i n g h i s
o r h e r c a r d
a c c o r d i n g l y .
4. A p l a y e r c a n f a i l t o
p a y p r o p e r a t t e n t i o n o r
t o p r o p e r l y mark h i s
o r h e r c a r d , a n d t h e r e b y
m i s s
an o p p o r t u n i t y t o be d e c l a r e d a w i n n e r .
5.
A p l a y e r must r e c o g n i z e t h a t h i s o r h e r c a r d
has
a
" b i n g o , "
i . e . , a p r e d e t e r m i n e d
p a t t e r n o f
m a t c h i n g v a l u e s , a n d i n t u r n a n n o u n c e t o t h e o t h e r
p l a y e r s
a n d t h e a n n o u n c e r
t h a t
t h i s
i s t h e c a s e
b e f o r e any o t h e r p l a y e r d o e s s o .
6.
The game o f b i n g o
c o n t e m p l a t e s a
g r o u p
a c t i v i t y i n w h i c h m u l t i p l e p l a y e r s compete
a g a i n s t
e a c h o t h e r t o be t h e f i r s t t o p r o p e r l y mark a c a r d
w i t h t h e p r e d e t e r m i n e d w i n n i n g
p a t t e r n a n d a n n o u n c e
t h a t
f a c t .
48
1080805 a n d 1080806
Our r e v i e w o f t h e r e c o r d i n
t h e p r e s e n t c a s e r e v e a l s
t h a t
C o r n e r s t o n e and FTV f a i l e d t o i n t r o d u c e s u b s t a n t i a l
e v i d e n c e
f r o m w h i c h t h e t r i a l
c o u r t r e a s o n a b l y c o u l d h a v e
c o n c l u d e d
t h a t
C o r n e r s t o n e
a n d FTV h a d a
" r e a s o n a b l e
l i k e l i h o o d o f
s u c c e s s " i n
p r o v i n g t h a t t h e e l e c t r o n i c g a m i n g m a c h i n e s s e i z e d
f r o m t h e EC
c o n s t i t u t e d
t h e game o f b i n g o .
Most o f t h e
i n f o r m a t i o n r e g a r d i n g t h e
manner i n
w h i c h t h e
m a c h i n e s o p e r a t e
was i n t r o d u c e d by t h e T a s k F o r c e .
The p o l i c e
o f f i c e r who
l e d
t h e
r a i d on t h e EC
a c t u a l l y
p l a y e d some o f t h e e l e c t r o n i c
g a m i n g m a c h i n e s b e f o r e t h e r a i d .
( C o r n e r s t o n e a n d FTV d i d
n o t
p r e s e n t a w i t n e s s who h a d p l a y e d t h e m a c h i n e s . )
F r o m t h e
o f f i c e r ' s
t e s t i m o n y , i t seems t h e m a c h i n e s
o p e r a t e
a l m o s t
e x a c t l y
l i k e
s l o t m a c h i n e s .
I n f a c t , an e n t i r e " b i n g o game"
t a k e s a p p r o x i m a t e l y s i x
s e c o n d s ,
i n v o l v e s no n u m b e r e d c a r d s ,
a n d
r e q u i r e s no p l a y e r i n t e r a c t i o n a t
a l l ,
o t h e r t h a n t h e
p l a y e r i n i t i a l l y i n s e r t i n g c a s h o r a " p l a y e r ' s c a r d " w i t h c a s h
c r e d i t s i n t o t h e
m a c h i n e a n d t h e n p r e s s i n g a b u t t o n o r p u l l i n g
a h a n d l e t o f i n d o u t t h e o u t c o m e .
A p l a y e r l e a r n s t h e outcome
t h r o u g h a l a r g e
d i s p l a y
t h a t
s p e c i f i c a l l y
t e l l s t h e p l a y e r
w h e t h e r he o r s h e h a s won a n d a s m a l l e r d i s p l a y t h a t shows a
b i n g o
b o a r d a n d t h e b a l l s
t h a t
c o u l d h a v e b e e n d r a w n .
A
49
1080805 a n d 1080806
l o s i n g
p l a y e r
i s n o t
t o l d
who,
i f a n y o n e , won
t h e
" b i n g o
game."
The
R i l e y d e f e n d a n t s
c o n t e n d
t h a t
C o r n e r s t o n e
a n d
FTV
f a i l e d t o o f f e r any e v i d e n c e
i n d i c a t i n g t h a t t h e p l a y e r s
o f
t h e
e l e c t r o n i c g a m i n g m a c h i n e s know who
t h e y
a r e
p l a y i n g
a g a i n s t
o r
t h a t
t h e y
a r e
p l a y i n g
a g a i n s t
a n y o n e
a t
a l l .
C o r n e r s t o n e a n d FTV c o u n t e r t h a t " t h e u n d i s p u t e d e v i d e n c e was
t h a t
t h e m a c h i n e s were
l i n k e d
t o g e t h e r ,
t h u s
a l l o w i n g f o r
c o m p e t i t i o n b e t w e e n m u l t i p l e p l a y e r s . "
C o r n e r s t o n e a n d FTV's
b r i e f , a t p. 38 n.20.
I t i s t r u e
t h a t C o r n e r s t o n e ' s
e x p e r t
t e s t i f i e d ,
a n d t h e R i l e y d e f e n d a n t s
d i d n o t d i s p u t e ,
t h a t
m u l t i p l e e l e c t r o n i c g a m i n g m a c h i n e s were
l i n k e d t o t h e same
s e r v e r .
The mere f a c t t h a t t h e m a c h i n e s may be " l i n k e d " i n
t h i s manner, h o w e v e r , d o e s n o t d e m o n s t r a t e t h a t p l a y e r s a r e
p l a y i n g
a g a i n s t
one
a n o t h e r ; a t m o s t ,
i t l e a v e s
open
t h e
p o s s i b i l i t y t h a t i t
i s t e c h n o l o g i c a l l y p o s s i b l e f o r them t o do
s o .
C o r n e r s t o n e a n d FTV
r e l y on t h e f a c t t h a t t h e m a c h i n e s
a r e
l i n k e d t o t h e same s e r v e r .
The e v i d e n c e
i n d i c a t e s
t h a t
t h e
s e r v e r
i n t u r n i s l i n k e d t o o r u s e s a c o m p u t e r p r o g r a m
t h a t t e l l s t h e m a c h i n e b e i n g p l a y e d w h e t h e r t h e p l a y e r o f t h a t
50
1080805 a n d 1080806
m a c h i n e i s
a w i n n e r o r l o s e r on t h a t o c c a s i o n .
The outcome
i s
p r e d e t e r m i n e d b y t h e
c o m p u t e r p r o g r a m c o n n e c t e d t o
t h e s e r v e r .
T h e r e
i s no
e v i d e n c e
i n d i c a t i n g
t h a t
t h i s
" l i n k a g e " o f
i n d i v i d u a l m a c h i n e s t o t h e s e r v e r means t h a t t h e p l a y e r s o f
t h e
d i f f e r e n t e l e c t r o n i c m a c h i n e s a r e p l a y i n g
a g a i n s t one
a n o t h e r .
On t h e b a s i s o f t h e f o r e g o i n g , we c a n n o t
c o n c l u d e
t h a t
C o r n e r s t o n e a n d
F T V i n t r o d u c e d
s u f f i c i e n t e v i d e n c e f r o m
w h i c h
t h e t r i a l c o u r t c o u l d h a v e d e t e r m i n e d t h a t C o r n e r s t o n e a n d
FTV
had a r e a s o n a b l e
l i k e l i h o o d o f s u c c e s s on t h e m e r i t s .
The
t r i a l c o u r t ' s o r d e r i s s u i n g a p r e l i m i n a r y i n j u n c t i o n t h e r e f o r e
i s r e v e r s e d , a n d
t h e c a u s e i s
remanded f o r
f u r t h e r p r o c e e d i n g s
c o n s i s t e n t w i t h
t h i s
o p i n i o n .
1080805 -- REVERSED AND REMANDED.
1080806 -- REVERSED AND REMANDED.
S t u a r t , S m i t h , B o l i n , P a r k e r , a n d Shaw, J J . , c o n c u r .
Cobb, C . J . ,
a n d L y o n s a n d W o o d a l l , J J . , d i s s e n t .
51
1080805 a n d 1080806
LYONS, J u s t i c e
( d i s s e n t i n g ) .
I j o i n
J u s t i c e W o o d a l l ' s d i s s e n t .
I n o t e
f u r t h e r
t h a t
C o r n e r s t o n e a n d FTV s t a t e t h a t
" [ e ] v e n t s
o c c u r r i n g
a f t e r t h e
e n t r y o f t h e p r e l i m i n a r y
i n j u n c t i o n h a v e g r e a t l y r e d u c e d t h e
t h r e a t o f f u r t h e r i r r e p a r a b l e harm t o C o r n e r s t o n e a n d FTV a n d
p r o v i d e
them
w i t h
an a d e q u a t e remedy a t l a w t h a t was n o t
a v a i l a b l e a t t h e t i m e t h e i n j u n c t i o n was s o u g h t a n d
e n t e r e d . "
P a r a g r a p h
6,
C o r n e r s t o n e
a n d
FTV's
m o t i o n
t o
d i s s o l v e
p r e l i m i n a r y
i n j u n c t i o n a n d d i s m i s s
a p p e a l s .
C o r n e r s t o n e a n d
FTV
a l s o p o i n t t o t h e i n c o m p l e t e s t a t u s o f t h e f a c t u a l
r e c o r d
by
r e a s o n o f t h e b r e v i t y a n d s h o r t
n o t i c e o f t h e h e a r i n g i n
t h e
t r i a l
c o u r t .
The
R i l e y d e f e n d a n t s o p p o s e d t h e m o t i o n , s t a t i n g :
" T h i s c a s e i s n o t moot b e c a u s e t h e i s s u e s i n i t a r e
h i g h l y l i k e l y t o r e c u r , w h i c h a l m o s t c e r t a i n l y w o u l d
p u t
t h e s e same
i s s u e s
o f g r e a t
p u b l i c
i m p o r t a n c e
i n v o l v i n g t h e same p a r t i e s
r i g h t b a c k b e f o r e
t h i s
C o u r t .
The o n l y
i n t e r e s t t h a t w o u l d be s e r v e d
b y
g r a n t i n g
[ C o r n e r s t o n e a n d FTV's] m o t i o n i s d e l a y .
The n e e d f o r
a d e c i s i o n on t h e s e i m p o r t a n t
q u e s t i o n s
c o m p e l s t h e d e n i a l o f t h e m o t i o n . "
R i l e y d e f e n d a n t s ' o p p o s i t i o n t o a p p e l l e e s ' m o t i o n t o d i s s o l v e
p r e l i m i n a r y i n j u n c t i o n a n d d i s m i s s a p p e a l s , a t p. 1.
However,
a
f u l l
h e a r i n g h a s b e e n h e l d on t h e i s s u e
a d d r e s s e d on t h e
m e r i t s i n t h e m a i n o p i n i o n i n C h a r l e s
B a k e r e t a l . v. W a l k e r
52
1080805 a n d 1080806
C o u n t y B i n g o
e t a l . , C a s e No.
2 0 0 7 - 0 4 0 0 ,
a n d an o r d e r
was
e n t e r e d on O c t o b e r 26, 2009, c o n c l u d i n g t h a t e l e c t r o n i c b i n g o
c o n s t i t u t e d an i l l e g a l
l o t t e r y a n d e n j o i n i n g s u c h o p e r a t i o n s .
I assume
t h a t t h e p a r t i e s
a g a i n s t whom t h e
i n j u n c t i o n
was
i s s u e d w i l l a p p e a l t h a t o r d e r t o t h i s C o u r t i n t h e e v e n t
t h e y
c o n s i d e r s u c h c o u r s e o f a c t i o n t o be i n t h e i r b e s t
i n t e r e s t .
I f
t h a t o c c u r s , we
w i l l h a v e t h e i s s u e b e f o r e us on a
f u l l
r e c o r d .
M o r e o v e r ,
t h i s C o u r t h a s r e c e n t l y g r a n t e d e x p e d i t e d
r e v i e w i n S h e r i f f
T e r r y S u r l e s & D i s t r i c t
A t t o r n e y R i c h a r d
M i n o r v . C i t y o f A s h v i l l e e t a l . , C a s e No. 1 0 8 0 8 2 6 , a n d S t a t e
o f A l a b a m a v. C i t y o f A s h v i l l e e t a l . , C a s e No. 1 0 8 1 0 1 5 ,
a l s o
d e a l i n g w i t h e l e c t r o n i c
b i n g o .
I n
sum,
I
f i n d
no
m e r i t
i n t h e
R i l e y
d e f e n d a n t s '
o p p o s i t i o n t o t h e m o t i o n t o d i s m i s s .
T h i s
C o u r t
h a s
r e c o g n i z e d m o o t n e s s
i n
a p p e a l s
f r o m
i n j u n c t i o n s
when
s u b s e q u e n t
p r o c e e d i n g s
e l i m i n a t e
t h e
n e c e s s i t y o f i n j u n c t i v e
r e l i e f .
See M o r r i s o n v. M u l l i n s ,
275
A l a .
258, 259, 154 So. 2d 16, 18
(1963)
(an a p p e a l
w i l l
be
d i s m i s s e d as moot " i f an e v e n t
h a p p e n i n g
a f t e r
h e a r i n g a n d
d e c r e e
i n
c i r c u i t
c o u r t ,
b u t
b e f o r e
a p p e a l
i s t a k e n ,
o r
p e n d i n g a p p e a l , makes d e t e r m i n a t i o n o f t h e a p p e a l
u n n e c e s s a r y
53
1080805 a n d 1080806
o r r e n d e r s i t c l e a r l y
i m p o s s i b l e f o r
t h e a p p e l l a t e c o u r t t o
g r a n t
e f f e c t u a l
r e l i e f
. . . . " ) .
U n d e r
t h e
f a c t s
h e r e
p r e s e n t e d ,
d e t e r m i n a t i o n o f t h e a p p e a l i n t h i s p r o c e e d i n g i s
u n n e c e s s a r y ,
a n d
t h i s
a p p e a l
s h o u l d
be
d i s m i s s e d
w i t h
i n s t r u c t i o n s t o t h e t r i a l
c o u r t t o v a c a t e
t h e p r e l i m i n a r y
i n j u n c t i o n , w h i c h h a s h e r e t o f o r e b e e n s t a y e d b y o r d e r o f t h i s
C o u r t p e n d i n g
a p p e a l .
The m a i n o p i n i o n
r e l i e s on C i t y o f E r i e v . P a p ' s A.M.,
529
U.S.
277
( 2 0 0 0 ) ,
i n w h i c h
t h e
f o u n d a t i o n
f o r t h e
c o n t e n t i o n o f m o o t n e s s was t h e
p r e v a i l i n g p a r t y ' s c e s s a t i o n o f
b u s i n e s s .
The m a i n o p i n i o n s t a t e s :
" H e r e , n o t o n l y i s
C o r n e r s t o n e
' s t i l l
i n c o r p o r a t e d , '
b u t i t a l s o h a s n e v e r s t o p p e d , a n d makes no o f f e r t o
s t o p ,
o p e r a t i n g i n t h e c h a l l e n g e d manner.
F u r t h e r
s t i l l , t h e R i l e y d e f e n d a n t s h a v e made no commitment
t o
r e f r a i n f r o m a n y f u r t h e r s e i z u r e o f m a c h i n e s f r o m
t h e
[ C o r n e r s t o n e
f a c i l i t y ] , a n d C o r n e r s t o n e a n d FTV
h a v e made no commitment t o n o t s e e k a p r e l i m i n a r y
i n j u n c t i o n
a g a i n s t
s u c h a s e i z u r e .
P e r h a p s
most
i m p o r t a n t l y ,
l i k e t h e U n i t e d
S t a t e s
Supreme
C o u r t
i n
E r i e ,
' [ o ] u r
i n t e r e s t
i n p r e v e n t i n g
l i t i g a n t s
f r o m
a t t e m p t i n g
t o
m a n i p u l a t e
t h e
C o u r t ' s
j u r i s d i c t i o n t o i n s u l a t e a f a v o r a b l e d e c i s i o n f r o m
r e v i e w
f u r t h e r
c o u n s e l s
a g a i n s t
a
f i n d i n g
o f
m o o t n e s s
h e r e . ' "
So. 3 d a t
.
U n l i k e E r i e , w h e r e t h e a l l e g e d b a s i s f o r
m o o t n e s s
was
t h e p r e v a i l i n g
p a r t y ' s
s i m p l y
c l o s i n g
i t s
e s t a b l i s h m e n t ,
h e r e C o r n e r s t o n e a n d FTV h a v e
c o n f e s s e d t h e
54
1080805 and
1080806
a v a i l a b i l i t y
o f
an
a d e q u a t e remedy a t
l a w
t h a t g o e s t o
t h e
b a s i s f o r t h e
t r i a l c o u r t ' s e n t r y o f a p r e l i m i n a r y i n j u n c t i o n .
Had
t h e
a s s e r t i o n
o f
m o o t n e s s
p r e v a i l e d
i n
E r i e ,
t h e
e s t a b l i s h m e n t
w o u l d h a v e
s t i l l
h a d
t h e
f a v o r a b l e
r u l i n g
f r o m
t h e
t r i a l c o u r t i n p l a c e .
H e r e , t h e c o n c e s s i o n
by
C o r n e r s t o n e
and
FTV
s h o u l d
l e a d t o v a c a t u r
o f t h e i n j u n c t i o n , u n d o i n g
t h e
f a v o r a b l e
r u l i n g
o f
t h e
t r i a l
c o u r t .
On
t h e
o t h e r
h a n d ,
a c c e p t a n c e o f t h e c e s s a t i o n o f b u s i n e s s as
s u f f i c i e n t t o moot
t h e
p r o c e e d i n g s
i n
E r i e
w o u l d h a v e
l e f t
t h e
m u n i c i p a l i t y
s a d d l e d
w i t h
an
a d v e r s e d e c i s i o n on
t h e
m e r i t s
i n t h e
t r i a l
c o u r t .
As
t o
t h e
a b s e n c e
o f
a commitment
f r o m
t h e
R i l e y
d e f e n d a n t s t h a t t h e y w i l l n o t r e f r a i n f r o m f u r t h e r s e i z u r e s i n
t h e
f u t u r e , we
s h o u l d
d e a l w i t h t h a t a c t i v i t y and
any
e n s u i n g
l i t i g a t i o n when i t p r o p e r l y comes b e f o r e
u s .
M a n i p u l a t i o n
o f
t h e C o u r t ' s
j u r i s d i c t i o n by
c e s s a t i o n
o f b u s i n e s s i n E r i e i s
s i m p l y
n o t
c o m p a r a b l e
t o
t h e
c i r c u m s t a n c e s
s u r r o u n d i n g
t h e
i n s t a n t
p r o c e e d i n g .
55
1080805 a n d 1080806
WOODALL, J u s t i c e
( d i s s e n t i n g ) .
I n
my
o p i n i o n ,
t h e s e
a p p e a l s
f r o m
a
p r e l i m i n a r y
i n j u n c t i o n
s h o u l d
be
d i s m i s s e d
as
moot.
T h e r e f o r e ,
I
r e s p e c t f u l l y d i s s e n t .
I n g r a n t i n g a p r e l i m i n a r y i n j u n c t i o n , a t r i a l
c o u r t d o e s
n o t
r e a c h t h e m e r i t s o f a c a s e .
B e n e t t o n
S.p.A. v. B e n e d o t ,
I n c . ,
642 So. 2d 394, 401 ( A l a . 1 9 9 4 ) .
T h e r e f o r e ,
" [ i ] t i s
w e l l
e s t a b l i s h e d t h a t when t h i s
C o u r t
r e v i e w s a p r e l i m i n a r y
i n j u n c t i o n ,
'we a r e n o t r e v i e w i n g
a
f i n a l
j u d g m e n t
on a
h e a r i n g
o f t h e c a s e on i t s
m e r i t s . ' " EB
I n v s . ,
L.L.C. v .
A t l a n t i s Dev., I n c . ,
930 So. 2d 502, 510 ( A l a . 2
0
0 5 ) ( q u o t i n g
H o w e l l
P i p e l i n e Co. v . T e r r a R e s . , I n c . , 454 So. 2d 1353, 1358
( A l a .
1 9 8 4 ) ) .
C o n s e q u e n t l y ,
a p r o p e r
r e v i e w
o f t h e
t r i a l
c o u r t ' s o r d e r i n t h i s c a s e w o u l d be l i m i t e d t o a d e t e r m i n a t i o n
o f w h e t h e r t h e t r i a l c o u r t e x c e e d e d i t s d i s c r e t i o n i n g r a n t i n g
t h e p r e l i m i n a r y r e l i e f .
H o w e v e r , t h e r e i s no n e e d f o r t h i s
C o u r t t o c o n d u c t s u c h a
r e v i e w .
By
w r i t t e n m o t i o n , C o r n e r s t o n e
and FTV have moved
" t h i s
C o u r t t o d i s s o l v e t h e i n j u n c t i o n and d i s m i s s t h e c o n s o l i d a t e d
a p p e a l s so t h a t t h e p a r t i e s may p r o c e e d i n an o r d e r l y f a s h i o n
i n t h e t r i a l
c o u r t t o w a r d s a d e t e r m i n a t i o n , b a s e d upon a
f u l l
56
1080805 a n d 1080806
e v i d e n t i a r y
r e c o r d , o f t h e i m p o r t a n t
i s s u e o f
s e r v e r - b a s e d
b i n g o u n d e r A l a b a m a l a w . " I n o t h e r w o r d s , C o r n e r s t o n e
and FTV
want
t h e
p r e l i m i n a r y
i n j u n c t i o n
f r o m
w h i c h
t h e
R i l e y
d e f e n d a n t s have a p p e a l e d t o be d i s s o l v e d , l e a v i n g t h e p a r t i e s
i n t h e same p o s i t i o n s t h e y o c c u p i e d
b e f o r e t h e i n j u n c t i o n was
e n t e r e d .
S t a t e d s i m p l y ,
C o r n e r s t o n e
and FTV no l o n g e r
i n s i s t
t h a t t h e y h a v e t h e r i g h t t o p o s s e s s and t o u s e t h e e l e c t r o n i c
g a m i n g m a c h i n e s i n q u e s t i o n p e n d i n g a f i n a l
j u d g m e n t .
The
R i l e y
d e f e n d a n t s ,
who s e e k a r e v e r s a l o f t h e t r i a l
c o u r t ' s
o r d e r ,
s h o u l d n o t be h e a r d t o c o m p l a i n
o f t h e d i s s o l u t i o n o f
t h e
i n j u n c t i o n o r t h e d i s m i s s a l o f t h e i r u n n e c e s s a r y
a p p e a l s .
T h e r e f o r e ,
t h i s
C o u r t
s h o u l d
d i s s o l v e
t h e
p r e l i m i n a r y
i n j u n c t i o n -- o r remand t h e c a s e f o r
t h e t r i a l
c o u r t t o do so
-- and d i s m i s s t h e a p p e a l s as moot.
" T h e r e i s
no d o u b t o f
t h e
g e n e r a l
r u l e t h a t i f
p e n d i n g an a p p e a l
' a p p e l l e e ... d o e s , o r
r e l i n q u i s h e s t h e r i g h t t o do some a c t i n r e s p e c t t o w h i c h t h e
a p p e a l was t a k e n , ' t h e a p p e a l
s h o u l d be d i s m i s s e d . "
W i l l i s v.
Buchman, 240 A l a . 386, 388, 199 So. 892, 894 (194 0 ) ( o p i n i o n on
r e h e a r i n g ) ( q u o t i n g
C a l d w e l l v. L o v e l e s s ,
17 A l a .
App. 3 8 1 ,
382,
85 So. 307, 307 ( 1 9 2 0 ) ) .
T h e r e i s no r e a s o n t o d e v i a t e
f r o m
t h i s
g e n e r a l
r u l e
i n t h i s
c a s e .
The p a r t i e s '
r i g h t s
57
1080805 a n d 1080806
r e m a i n t o be d e t e r m i n e d on t h e m e r i t s i n t h e t r i a l c o u r t , and,
as
I
w i l l
e x p l a i n ,
t h e
p u b l i c - i n t e r e s t e x c e p t i o n
t o t h e
m o o t n e s s d o c t r i n e d o e s n o t
a p p l y .
" I t i s t r u e t h a t an e x c e p t i o n
[ t o t h e m o o t n e s s
d o c t r i n e ]
e x i s t s
f o r a
'moot
c a s e
i n v o l v i n g
i s s u e s
o f
g r e a t
p u b l i c
i m p o r t a n c e ,
w h i c h
may
r e c u r
i n t h e
f u t u r e . ' "
Chapman
v.
Gooden,
974 So. 2d 972, 989
( A l a . 2007)
( q u o t i n g
1A C . J . S .
A c t i o n s
§
81
( 2 0 0 5 ) ) .
One
c r i t e r i o n
f o r a p p l y i n g
t h i s
e x c e p t i o n
i s
" ' t h e
d e s i r a b i l i t y
o f
an
a u t h o r i t a t i v e
d e t e r m i n a t i o n
f o r t h e p u r p o s e o f g u i d i n g
p u b l i c
o f f i c e r s . ' "
Chapman, 974 So. 2d a t 989
( e m p h a s i s a d d e d ) .
"However, [ t h e
p u b l i c - i n t e r e s t ]
' e x c e p t i o n
i s c o n s t r u e d
n a r r o w l y
... and a
c l e a r
s h o w i n g o f e a c h
c r i t e r i o n
i s r e q u i r e d t o b r i n g a c a s e
w i t h i n i t s
t e r m s . ' " I d . ( q u o t i n g I n r e A d o p t i o n o f W a l g r e e n ,
186
I l l .
2d 362, 365, 710 N.E.2d 1226, 1227, 238
I l l . Dec.
124,
125 ( 1 9 9 9 ) ) ( e m p h a s i s a d d e d ) . The d e c i s i o n r e n d e r e d by t h e
m a j o r i t y i s n o t a u t h o r i t a t i v e ; t h e r e f o r e , t h e p u b l i c - i n t e r e s t
e x c e p t i o n
t o t h e m o o t n e s s d o c t r i n e i s n o t a p p l i c a b l e .
The m a j o r i t y
s t a t e s
" t h a t
t h e r e i s a c l e a r and
p r e s s i n g
n e e d
f o r an
a u t h o r i t a t i v e
d e t e r m i n a t i o n
as
t o
[ w h e t h e r
e l e c t r o n i c b i n g o i s l e g a l ] . "
So. 3d a t
.
However, t h e
58
1080805 a n d 1080806
m a i n o p i n i o n i s i n no way " a u t h o r i t a t i v e . "
I n d e e d ,
o n l y t h e
u n n e c e s s a r y r e v e r s a l o f t h e p r e l i m i n a r y i n j u n c t i o n i s b i n d i n g
on t h e t r i a l
c o u r t .
T h i s i s so b e c a u s e t h e f a c t u a l r e c o r d f o r
t h i s c a s e i s l i k e l y t o be q u i t e d i f f e r e n t i f
and when a
f i n a l
t r i a l i s c o n d u c t e d .
A c c o r d i n g
t o t h e m a j o r i t y ,
t h i s
c a s e
i n v o l v e s
" l e g a l
q u e s t i o n s o f g r e a t p u b l i c i n t e r e s t and i m p o r t a n c e . "
So.
3d a t
.
I f t h a t be t h e c a s e ,
s u c h
q u e s t i o n s
s h o u l d
be
r e s o l v e d o n l y when t h i s C o u r t r e c e i v e s an a p p e a l f r o m a
f i n a l
j u d g m e n t on t h e m e r i t s a c c o m p a n i e d by a f u l l
f a c t u a l
r e c o r d .
O t h e r w i s e ,
t h i s
C o u r t
w i l l
h a v e
i g n o r e d
i t s
own
a d m o n i t i o n
t h a t i t s h o u l d
" ' n o t a l l o w t h e j u d i c i a r y o f t h i s
s t a t e t o
become a p o l i t i c a l
f o i l ,
o r a s o u n d i n g b o a r d f o r t o p i c s o f
c o n t e m p o r a r y
i n t e r e s t . ' "
S i e g e l m a n v . A l a b a m a A s s ' n o f S c h .
B d s . , 819 So. 2d 568, 576 ( A l a . 2001) ( q u o t i n g Ex p a r t e
S t a t e
ex r e l . James, 711 So. 2d 952, 962 ( A l a . 1 9 9 8 ) ) .
Cobb, C . J . , and L y o n s , J . , c o n c u r .
59 | November 13, 2009 |
1e27b12d-0f6e-4e70-bc5a-3cb8184c4f23 | Ex parte State of Alabama. PETITION FOR WRIT OF MANDAMUS: CRIMINAL (In re: State of Alabama v. Jason Murphy) | N/A | 1071528 | Alabama | Alabama Supreme Court | R e l :
11/20/2009
Notice: T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e
r e q u e s t e d t o n o t i f y t h e
Reporter of Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741
((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l o r
o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may
be
made b e f o r e
t h e o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1071528
Ex p a r t e S t a t e o f
Alabama
PETITION FOR WRIT OF MANDAMUS
(In r e : S t a t e o f Alabama v. Jason Murphy)
(Elmore C i r c u i t Court, CC-03-444;
Court o f C r i m i n a l Appeals,
CR-07-1265)
On A p p l i c a t i o n f o r R e h e a r i n g
PARKER,
J u s t i c e .
T h i s C o u r t ' s
o p i n i o n o f S e p t e m b e r 4, 2009, i s w i t h d r a w n ,
a n d t h e f o l l o w i n g i s
s u b s t i t u t e d t h e r e f o r .
1071528
The S t a t e o f A l a b a m a p e t i t i o n s
t h i s C o u r t f o r
a w r i t o f
mandamus d i r e c t i n g t h e E l m o r e C i r c u i t
C o u r t t o v a c a t e a
p r e -
t r i a l
o r d e r
s u p p r e s s i n g
c e r t a i n p r o s e c u t o r i a l e v i d e n c e .
We
d e n y t h e p e t i t i o n .
On
J u l y 29, 2003,
R o n n i e Holman
was
s h o t
and
k i l l e d
o u t s i d e h i s
h o u s e i n T i t u s , a l l e g e d l y d u r i n g a r o b b e r y . He was
l u r e d o u t s i d e t h e h o u s e a n d was t h e n s h o t . The n e x t d a y , J a s o n
M u r p h y was a r r e s t e d f o r s n a t c h i n g
p u r s e s ,
and on A u g u s t 11,
2 0 0 3 ,
M u r p h y
and h i s b r o t h e r
were
a r r e s t e d
f o r Holman's
m u r d e r . M u r p h y was
t r i e d
t w i c e , and e a c h
t r i a l
e n d e d i n a
m i s t r i a l .
1
T h i s
p r e t r i a l
a p p e a l
b y t h e S t a t e
c o n c e r n s
an
e v i d e n t i a r y i s s u e i n M u r p h y ' s
t h i r d
t r i a l .
I n t h e two e a r l i e r
t r i a l s ,
t h e S t a t e was p e r m i t t e d t o
i n t r o d u c e
e v i d e n c e o f M u r p h y ' s
c o n v i c t i o n f o r a s s a u l t
t h a t
stemmed
f r o m
M u r p h y ' s
s h o o t i n g
o f
C a r l o s
K i n g .
I n
t h a t
i n c i d e n t , M u r p h y and some f r i e n d s t h r e w r o c k s and d e b r i s a t
K i n g ' s home, b r e a k i n g a window, i n
an e f f o r t t o e n c o u r a g e K i n g
t o come o u t s i d e . K i n g emerged f r o m t h e h o u s e w i t h a f i r e a r m ,
w h i c h he a l l e g e d l y f i r e d , and he was t h e n s h o t b y M u r p h y , who
1 T h e
f i r s t
t r i a l
e n d e d i n a m i s t r i a l
on S e p t e m b e r 15,
2 0 0 6 ; t h e s e c o n d
t r i a l
e n d e d i n a m i s t r i a l on S e p t e m b e r 28,
2007.
2
1071528
u s e d a . 2 2 - c a l i b e r r e v o l v e r . K i n g
s u r v i v e d t h e g u n s h o t wound.
M u r p h y e n t e r e d
a p l e a o f g u i l t y t o an a s s a u l t c h a r g e and was
c o n v i c t e d . I n t h e p r o c e e d i n g s l e a d i n g up t o t h e t h i r d
t r i a l ,
t h e d e f e n s e , as i t
h a d i n t h e e a r l i e r m u r d e r t r i a l s ,
f i l e d a
m o t i o n i n l i m i n e s e e k i n g t o h a v e t h e e v i d e n c e o f t h e
a s s a u l t
c o n v i c t i o n r u l e d i n a d m i s s i b l e as e v i d e n c e o f a p r i o r b a d a c t .
A t
a
h e a r i n g
on M u r p h y ' s
m o t i o n
i n l i m i n e
and a l l o t h e r
p r e t r i a l m o t i o n s on A p r i l 9, 2008, t h e S t a t e h a d a v a i l a b l e t o
t e s t i f y an i n m a t e who h a d p r e v i o u s l y t e s t i f i e d t h a t M u r p h y h a d
t o l d h i m t h a t M u r p h y a n d o t h e r s h a d t h r o w n r o c k s and d e b r i s a t
H o l m a n ' s h o u s e t o l u r e h i m o u t s i d e ,
j u s t as t h e y h a d done i n
t h e
e a r l i e r
i n c i d e n t when M u r p h y s h o t K i n g ; t h e S t a t e
a r g u e d
t h a t t e s t i m o n y c o n c e r n i n g t h a t e a r l i e r i n c i d e n t i s a d m i s s i b l e
u n d e r
an
e x c e p t i o n
i n R u l e
4 0 4 ( b ) , A l a . R.
E v i d . ,
t o t h e
g e n e r a l
r u l e t h a t e v i d e n c e o f o t h e r c r i m e s i s n o t
a d m i s s i b l e ,
i . e . ,
e v i d e n c e
o f o t h e r
c r i m e s
i s a d m i s s i b l e
as p r o o f o f ,
among o t h e r
t h i n g s ,
p r e p a r a t i o n ,
p l a n , and
i d e n t i t y .
M u r p h y
c h a l l e n g e s
t h e v e r a c i t y o f t h e i n m a t e ' s t e s t i m o n y and a r g u e s
t h a t t h e i n m a t e was b i a s e d . M o r e o v e r , M u r p h y a r g u e s t h a t
t h e r e
i s
no
e v i d e n c e
i n d i c a t i n g
t h a t
a n y
r o c k s
were
t h r o w n
a t
H o l m a n ' s h o u s e . K a t h y H o l m a n , t h e v i c t i m ' s s p o u s e ,
t e s t i f i e d
3
1071528
t h a t she and Holman were w a t c h i n g t e l e v i s i o n when t h e y
h e a r d
t h e i r dogs b a r k i n g . She s a i d t h a t she and Holman went
o u t s i d e
t o s e e what t h e dogs were b a r k i n g a t . She t e s t i f i e d t h a t when
t h e y went o u t s i d e Holman was
s h o t .
On
A p r i l
10, 2008, t h e
t r i a l
c o u r t
i s s u e d i t s o r d e r ;
t h a t o r d e r
s t a t e s , i n p a r t :
"Upon a r g u m e n t b e i n g
r e c e i v e d ,
t h i s C o u r t
m o d i f i e s
t h e p r e v i o u s l y made r u l i n g c o n c e r n i n g
t h e r e f e r e n c e
t o
t h e C a r l o s
K i n g
i n c i d e n t as
r e f e r e n c e d
i n t h e
M o t i o n [ i n l i m i n e ] . T h i s C o u r t h e r e b y r u l e s t h a t t h e
r e f e r e n c e
t o [ M u r p h y ' s ] p r e v i o u s
i n c i d e n t
w h e r e i n
C a r l o s K i n g was summon[ed] o u t o f h i s r e s i d e n c e and
t h e r e a f t e r
s h o t i s n o t s u b s t a n t i a l l y
s i m i l a r so as
t o
a l l o w
t e s t i m o n y
o f
t h a t
i n c i d e n t
i n
t h e
p r o s e c u t i o n i n t h i s C a p i t a l M u r d e r c a s e .
T h i s
C o u r t
f i n d s
t h a t
t h e
o n l y
s i m i l a r
f a c t s
a r e t h e
dog
b a r k i n g
and
someone
b e i n g
s h o t
o u t s i d e
t h e i r
r e s i d e n c e . "
On A p r i l 23, 2008, t h e S t a t e
f i l e d a p e t i t i o n f o r a w r i t o f
mandamus w i t h t h e C o u r t o f C r i m i n a l A p p e a l s ,
w h i c h
d e n i e d t h e
p e t i t i o n on J u l y 24, 2008, w i t h o u t an o p i n i o n . S t a t e v . M u r p h y
(No. CR-07-1265, J u l y 24, 2 0 0 8 ) ,
So. 3d
( A l a . C r i m .
App. 2 0 0 8 ) ( t a b l e ) .
T h i s
p e t i t i o n
f o l l o w e d . I n i t s p e t i t i o n ,
t h e
S t a t e
e x p l a i n s
t h a t i t p r o c e e d e d w i t h a p e t i t i o n f o r a
w r i t o f mandamus b e c a u s e i t c o u l d n o t a p p e a l u n d e r R u l e 15.7,
A l a .
R. C r i m P., w h i c h r e q u i r e s t h a t t h e S t a t e
c e r t i f y
t h a t
t h e c h a l l e n g e d o r d e r , i f
i t
r e m a i n s i n f o r c e , w i l l be f a t a l t o
4
1071528
i t s c a s e , a n d t h e S t a t e c o u l d n o t
make s u c h a c e r t i f i c a t i o n i n
t h i s c a s e .
2 "The S t a t e c a n a n d w i l l p r o c e e d t o t r i a l , e v e n
i f
i t
i s u n a b l e
t o
i n t r o d u c e [ t h e d e s i r e d ] e v i d e n c e
"
P e t i t i o n , a t 15.
A f t e r t h e S t a t e f i l e d i t s p e t i t i o n ,
t h i s C o u r t i s s u e d i t s
d e c i s i o n i n
Ex p a r t e K i n g , [Ms. 1071540, J a n u a r y 9, 2009]
So. 3d ___ ( A l a .
2 0 0 9 ) . I n s u p p l e m e n t a l
b r i e f s , b o t h
p a r t i e s
a d d r e s s e d t h e a p p l i c a b i l i t y o f Ex p a r t e K i n g , a c a s e
t h a t
p r e s e n t s i s s u e s
s i m i l a r t o t h o s e p r e s e n t e d i n t h i s c a s e . The
p r o c e d u r a l h i s t o r y o f Ex p a r t e K i n g i s as f o l l o w s : The C o u r t
o f C r i m i n a l A p p e a l s h a d i s s u e d a w r i t o f mandamus o r d e r i n g
t h e
t r i a l c o u r t t o v a c a t e i t s
o r d e r d e n y i n g t h e S t a t e ' s m o t i o n i n
l i m i n e
s e e k i n g t o s u p p r e s s
c e r t a i n e v i d e n c e . S t a t e v . K i n g ,
[Ms. CR-07-0693,
J u l y 25, 2008] ___ So. 3d ___ ( A l a . C r i m .
App.
2 0 0 8 ) .
K i n g t h e n
p e t i t i o n e d
t h i s
C o u r t f o r a w r i t o f
mandamus s e e k i n g t o h a v e t h e o r d e r o f t h e C o u r t o f C r i m i n a l
A p p e a l s
v a c a t e d . She a r g u e d
t h a t b y i s s u i n g t h e w r i t , t h e
2 R u l e
1 5 . 7 ( a ) , A l a . R. C r i m . P., p r o v i d e s : " I n a n y c a s e
i n v o l v i n g a f e l o n y , a m i s d e m e a n o r , o r a v i o l a t i o n , an a p p e a l
may be t a k e n b y t h e s t a t e t o t h e C o u r t o f C r i m i n a l
A p p e a l s
f r o m a p r e - t r i a l o r d e r o f t h e c i r c u i t c o u r t (1) s u p p r e s s i n g a
c o n f e s s i o n o r a d m i s s i o n o r o t h e r e v i d e n c e
S u c h an a p p e a l
may be t a k e n o n l y i f
t h e p r o s e c u t o r c e r t i f i e s t o t h e C o u r t o f
C r i m i n a l
A p p e a l s
t h a t
... t h e o r d e r , i f n o t r e v e r s e d on
a p p e a l ,
w i l l be f a t a l t o t h e p r o s e c u t i o n o f t h e c h a r g e . "
5
1071528
C o u r t o f C r i m i n a l A p p e a l s h a d e n a b l e d
t h e S t a t e t o f i l e an
i n t e r l o c u t o r y
a p p e a l
u n d e r t h e g u i s e o f a p e t i t i o n
s e e k i n g
mandamus r e l i e f . The S t a t e a r g u e d t h a t t h e C o u r t o f C r i m i n a l
A p p e a l s h a d e x e r c i s e d
i t s s u p e r v i s o r y
a u t h o r i t y t o a v o i d a
" g r o s s
d i s r u p t i o n i n t h e a d m i n i s t r a t i o n o f t h e c r i m i n a l
j u s t i c e s y s t e m , " w h i c h , i t
a r g u e s , w o u l d r e s u l t i f
i t s m o t i o n
i n
l i m i n e was d e n i e d .
R e l y i n g on Ex p a r t e N i c e , 407 So. 2d 874
( A l a .
1 9 8 1 ) ,
3 t h i s C o u r t a g r e e d w i t h K i n g a n d i s s u e d t h e w r i t
3 " ' T h e C o u r t o f C r i m i n a l A p p e a l s h a s a u t h o r i t y t o
i s s u e
s u c h
r e m e d i a l
a n d
o r i g i n a l
w r i t s
as a r e
n e c e s s a r y
t o g i v e i t
a g e n e r a l
s u p e r i n t e n d e n c e
a n d
c o n t r o l o f t h e c i r c u i t
c o u r t s i n c r i m i n a l
m a t t e r s ,
o v e r w h i c h i t h a s e x c l u s i v e a p p e l l a t e
j u r i s d i c t i o n . '
Ex
p a r t e
N i c e ,
407 So. 2d 874
, 876
( A l a .
1 9 8 1 ) .
H o w e v e r , '[m]andamus c a n n o t be u s e d as a s u b s t i t u t e
f o r
a p p e a l , when no a p p e a l i s a u t h o r i z e d by l a w o r
c o u r t
r u l e
N i c e , 407 So. 2d a t 879 ( e m p h a s i s
o m i t t e d ) .
I n s t e a d ,
mandamus
' i s a p p r o p r i a t e
i n
e x c e p t i o n a l
c i r c u m s t a n c e s
w h i c h amount t o j u d i c i a l
u s u r p a t i o n
o f p o w e r . '
N i c e ,
407 So. 2d a t 878
( e m p h a s i s o m i t t e d ) . M o r e o v e r , 'mandamus c a n be u s e d
t o
p r e v e n t a g r o s s
d i s r u p t i o n i n t h e a d m i n i s t r a t i o n
o f
c r i m i n a l
j u s t i c e . '
N i c e ,
407 So. 2d a t 879
( e m p h a s i s o m i t t e d ) . Thus, when t h e t r i a l
c o u r t h a s
a c t e d
w i t h o u t
l a w f u l a u t h o r i t y , t h e S t a t e h a s b e e n
a f f o r d e d mandamus r e l i e f . S e e , e . g . , S t a t e v . B l a n e ,
985 So. 2d 384 ( A l a . 2007)
( d i r e c t i n g
c i r c u i t
c o u r t
t o
v a c a t e
o r d e r
e x p u n g i n g c r i m i n a l r e c o r d ) ; D.B.Y.
v.
S t a t e ,
910 So. 2d 820
( A l a . C r i m . App. 2005)
( d i r e c t i n g
t r i a l
c o u r t
t o
r e i n s t a t e
j u v e n i l e ' s
p r o b a t i o n
a n d
d i r e c t
t h a t
j u v e n i l e
u n d e r g o
s e x u a l - o f f e n d e r
r i s k
a s s e s s m e n t
b e f o r e
b e i n g
r e l e a s e d f r o m p r o b a t i o n ) . "
6
1071528
d i r e c t i n g t h e C o u r t
o f C r i m i n a l A p p e a l s t o v a c a t e
i t s o r d e r
i s s u i n g
t h e
w r i t
t o t h e
t r i a l
c o u r t .
I n
r e g a r d
t o t h e
a l l e g a t i o n
o f
an
i m p e n d i n g
" g r o s s
d i s r u p t i o n
i n
t h e
a d m i n i s t r a t i o n o f t h e c r i m i n a l
j u s t i c e s y s t e m , " we s t a t e d :
" I f t h e t r i a l
c o u r t a l l o w s t h e j u r y t o c o n s i d e r t h e
e v i d e n c e
t h e S t a t e
s e e k s t o keep o u t , i t w i l l
be
a c t i n g
w i t h i n i t s l a w f u l a u t h o r i t y , and t h e S t a t e
w i l l
have no
r i g h t
o f a p p e l l a t e
r e v i e w .
Such
an
outcome
w o u l d
r e f l e c t
t h e
o r d i n a r y
and
p r o p e r
a d m i n i s t r a t i o n o f c r i m i n a l j u s t i c e , n o t a d i s r u p t i o n
t h e r e o f . "
Ex p a r t e K i n g ,
So. 3d a t
.
U n l e s s t h e t r i a l c o u r t a c t s w i t h o u t l a w f u l a u t h o r i t y a n d ,
i n so d o i n g ,
j u s t i f i e s t h e i s s u a n c e o f a w r i t o f mandamus ( s e e
s u p r a
n o t e 3 ) , t h e s o l e a v e n u e f o r t h e a p p e a l
o f a
p r e t r i a l
o r d e r b y t h e S t a t e
l i e s i n R u l e 15.7, A l a .
R. C r i m . P. B e c a u s e
t h e S t a t e c o u l d n o t p r o v i d e t h e r e q u i r e d c e r t i f i c a t i o n
u n d e r
R u l e 15.7, i t d i d n o t q u a l i f y f o r an a p p e a l
u n d e r t h a t
r u l e
and,
t h u s , h a d no r i g h t o f a p p e a l . B e c a u s e "'[m]andamus c a n n o t
be
u s e d
as
a
s u b s t i t u t e f o r a p p e a l
when
no
a p p e a l
i s
a u t h o r i z e d b y l a w o r c o u r t r u l e
Ex p a r t e K i n g ,
So.
3d a t
( q u o t i n g N i c e ,
407 So. 2d a t 8 7 9 ) , t h e C o u r t
o f
C r i m i n a l A p p e a l s c o r r e c t l y d e n i e d t h e S t a t e ' s p e t i t i o n f o r a
Ex p a r t e K i n g ,
So. 3d a t
7
1071528
w r i t o f mandamus s e e k i n g t o v a c a t e t h e d e c i s i o n o f t h e t r i a l
c o u r t
g r a n t i n g
M u r p h y ' s
m o t i o n
i n l i m i n e
and s u p p r e s s i n g
e v i d e n c e o f M u r p h y ' s a s s a u l t
c o n v i c t i o n .
The p e t i t i o n f o r
a w r i t o f mandamus i s d e n i e d .
A P P L I C A T I O N
GRANTED;
OPINION
OF
SEPTEMBER
4,
2009,
WITHDRAWN; OPINION SUBSTITUTED;
P E T I T I O N DENIED.
Cobb, C . J . ,
a n d W o o d a l l a n d S m i t h , J J . , c o n c u r .
Shaw, J . ,
c o n c u r s i n t h e r e s u l t .
8 | November 20, 2009 |
29003f9a-ca44-49e1-a23d-668abc577ed5 | Christopher S. Chiepalich and Elizabeth W. Chiepalich v. Harwell E. Coale, Jr. | N/A | 1061725 | Alabama | Alabama Supreme Court | Rel 10/16/2009
Notice: T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e
Reporter of Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741
((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l o r
o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may
be
made b e f o r e
t h e o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009 - 2010
1061725
C h r i s t o p h e r S. C h i e p a l i c h and E l i z a b e t h W. C h i e p a l i c h
v.
Harwell E. Coale, J r .
Appeal from Mobile C i r c u i t
Court
(CV-06-3617)
PER CURIAM.
C h r i s t o p h e r S. C h i e p a l i c h a n d E l i z a b e t h W.
C h i e p a l i c h
a p p e a l f r o m t h e d i s m i s s a l b y t h e M o b i l e
C i r c u i t C o u r t o f t h e i r
c l a i m s
a g a i n s t H a r w e l l E. C o a l e , J r . We r e v e r s e a n d remand.
F a c t s a n d P r o c e d u r a l
H i s t o r y
On O c t o b e r 2 5 , 2004, t h e C h i e p a l i c h s
f i l e d a
" b i l l
f o r
d e c l a r a t o r y j u d g m e n t a n d
p e r m a n e n t i n j u n c t i o n " a g a i n s t
C o a l e
1061725
i n t h e C l a r k e C i r c u i t C o u r t , s e e k i n g a d e t e r m i n a t i o n t h a t t h e y
p o s s e s s e d
an e a s e m e n t
t h a t
a l l o w e d
them
t o a c c e s s
t h e i r
p r o p e r t y
u s i n g a c e r t a i n
r o a d w a y ( s o m e t i m e s
r e f e r r e d t o as
" t h e o l d s e t t l e m e n t r o a d " )
t h a t c r o s s e s C o a l e ' s p r o p e r t y and
s e e k i n g t o e n j o i n
C o a l e
f r o m
e r e c t i n g
b a r r i e r s
t h a t
w o u l d
p r e v e n t them f r o m u s i n g t h e r o a d w a y .
1
The C h i e p a l i c h s a l s o
a p p a r e n t l y
s o u g h t
a p r e l i m i n a r y i n j u n c t i o n ,
w h i c h ,
a f t e r a
h e a r i n g , t h e t r i a l c o u r t d e n i e d .
O t h e r w i s e , a c c o r d i n g t o t h e
C h i e p a l i c h s ,
t h a t
a c t i o n was
s t i l l
p e n d i n g
i n t h e C l a r k e
C i r c u i t C o u r t when t h e y
f i l e d
t h e i r
b r i e f w i t h t h i s C o u r t i n
t h e p r e s e n t c a s e . C h i e p a l i c h s '
b r i e f , a t 7.
On
O c t o b e r
23, 2006,
F i r s t
A m e r i c a n
T i t l e
I n s u r a n c e
Company ( " F i r s t A m e r i c a n " ) f i l e d a d e c l a r a t o r y - j u d g m e n t
a c t i o n
i n
t h e M o b i l e
C i r c u i t
C o u r t ,
n a m i n g
t h e C h i e p a l i c h s as
d e f e n d a n t s .
F i r s t
A m e r i c a n
h a d
i s s u e d a
t i t l e - i n s u r a n c e
p o l i c y t o t h e C h i e p a l i c h s ,
i n s u r i n g t h e l e g a l
t i t l e
t o t h e
r e a l p r o p e r t y owned b y them t h a t a d j o i n e d C o a l e ' s p r o p e r t y and
t h a t t h e y d e s i r e d t o a c c e s s by way o f t h e o l d
s e t t l e m e n t r o a d .
The
d e c l a r a t o r y - j u d g m e n t
a c t i o n
s o u g h t a d e t e r m i n a t i o n t h a t
1 A l l e g i n g
t h a t an e a s e m e n t
e x i s t e d i n t h e i r
f a v o r , t h e
t h r e e
t h e o r i e s t h e C h i e p a l i c h s a d v a n c e d i n s u p p o r t
o f t h e
e a s e m e n t
i n t h e C l a r k e
C i r c u i t
C o u r t
w e r e
p r e s c r i p t i o n ,
i m p l i c a t i o n , and n e c e s s i t y .
2
1061725
t h e c o v e r a g e p r o v i d e d u n d e r t h e p o l i c y d i d n o t
i n s u r e
a g a i n s t
l o s s o r damage s u s t a i n e d by t h e C h i e p a l i c h s ' l a c k o f a c c e s s t o
t h e i r
p r o p e r t y .
On
December
27,
2006,
t h e
C h i e p a l i c h s
f i l e d
a
c o u n t e r c l a i m
a g a i n s t
F i r s t
A m e r i c a n
and
a
" t h i r d - p a r t y
c o m p l a i n t "
a g a i n s t C o a l e i n t h e
a c t i o n p e n d i n g i n t h e
M o b i l e
C i r c u i t C o u r t .
The
t h i r d - p a r t y c o m p l a i n t
a l l e g e d
n e g l i g e n c e ,
w a n t o n n e s s , i n t e n t i o n a l i n t e r f e r e n c e w i t h b u s i n e s s
r e l a t i o n s ,
t r e s p a s s , c o n v e r s i o n ,
and n u i s a n c e .
A l l o f t h o s e c l a i m s w e r e
b a s e d on t h e C h i e p a l i c h s ' a l l e g a t i o n t h a t C o a l e h a d r e f u s e d
t o
a l l o w them t o use
t h e o l d s e t t l e m e n t
r o a d t o remove f r o m
t h e i r
p r o p e r t y
t i m b e r
t h a t
a l l e g e d l y
had
f a l l e n
as
a
r e s u l t
o f
H u r r i c a n e
I v a n
and
H u r r i c a n e
K a t r i n a
i n S e p t e m b e r 2004
and
A u g u s t 2005,
r e s p e c t i v e l y .
The
c o m p l a i n t
a l l e g e d
t h a t ,
i n
December
2005,
t h e
C h i e p a l i c h s
n o t i f i e d
C o a l e
t h a t
t h e y
i n t e n d e d
t o use
t h e o l d s e t t l e m e n t
r o a d
t o remove t h e
t i m b e r ,
b u t C o a l e r e f u s e d t o u n l o c k g a t e s t h a t w e r e b l o c k i n g a c c e s s t o
t h e
o l d
s e t t l e m e n t
r o a d
e v e n
t h o u g h
he
knew
an
e a s e m e n t
e x i s t e d
i n
f a v o r
o f
t h e
C h i e p a l i c h s .
A c c o r d i n g
t o
t h e
c o m p l a i n t ,
t h e
C h i e p a l i c h s had
n e g o t i a t e d
w i t h a n o t h e r
p a r t y
t o remove and
s e l l
t h e
t i m b e r
b u t
t h e p r o p o s e d c o n t r a c t
w i t h
3
1061725
t h a t p a r t y was
n o t consummated b e c a u s e t h a t p a r t y was
u n a b l e
t o g a i n a c c e s s t o t h e C h i e p a l i c h s ' l a n d v i a t h e o l d
s e t t l e m e n t
r o a d .
The
c o m p l a i n t
f u r t h e r a l l e g e d t h a t C o a l e ' s r e f u s a l
t o
a l l o w t h e
C h i e p a l i c h s
t o use
t h e
o l d s e t t l e m e n t
r o a d
c a u s e d
them t o s u f f e r a t o t a l
l o s s o f t h e v a l u e
o f t h e
t i m b e r .
On J a n u a r y 26, 2007, C o a l e moved t h e M o b i l e
C i r c u i t C o u r t
t o d i s m i s s
t h e t h i r d - p a r t y c o m p l a i n t
b a s e d on § 6-5-440, A l a .
Code 1975,
w h i c h p r o h i b i t s a p l a i n t i f f f r o m " p r o s e c u t [ i n g ]
two
a c t i o n s
i n t h e
c o u r t s
o f
t h i s
s t a t e a t t h e same t i m e f o r
t h e
same c a u s e and a g a i n s t t h e same p a r t y . "
C o a l e a r g u e d t h a t
t h e
t h i r d - p a r t y c o m p l a i n t
a g a i n s t h i m
i n t h e M o b i l e
C i r c u i t
C o u r t
was
b a r r e d
b e c a u s e , he
s a i d ,
an
a c t i o n
" f o r t h e same c a u s e "
was
p e n d i n g a g a i n s t h i m
i n t h e C l a r k e C i r c u i t C o u r t .
On M a r c h
28,
2007,
t h e
M o b i l e
C i r c u i t
C o u r t
d i s m i s s e d
t h e
c l a i m s
a g a i n s t C o a l e ,
s t a t i n g : "By
o r d e r
o f c o u r t , m o t i o n t o
d i s m i s s
t h i r d p a r t y ,
g r a n t e d . "
On
A p r i l
20,
2 0 0 7 ,
t h e
C h i e p a l i c h s
moved
t h e
M o b i l e
C i r c u i t
C o u r t
t o
v a c a t e
i t s o r d e r
d i s m i s s i n g
t h e i r
c l a i m s
a g a i n s t
C o a l e .
I n t h a t m o t i o n , t h e
C h i e p a l i c h s
a r g u e d :
"The
o n l y way
t h e C l a r k e C o u n t y a c t i o n c o u l d
be
c o n c l u s i v e
as
a g a i n s t
t h e
c l a i m s
a s s e r t e d
i n
t h e
T h i r d - P a r t y C o m p l a i n t i s i f t h e C l a r k e C o u n t y
c o u r t
f i n d s
t h a t
an e a s e m e n t does n o t
e x i s t . E v e n t h o u g h
4
1061725
C o a l e i s a p a r t y i n b o t h s u i t s , i f
t h e C l a r k e C o u n t y
c o u r t
r u l e s
i n f a v o r
o f
C h i e p a l i c h ,
t h e n
t h a t
f i n d i n g
w i l l
n o t h a v e a c o n c l u s i v e
e f f e c t
on t h e
c l a i m s a s s e r t e d i n t h e T h i r d - P a r t y a c t i o n . Once t h e
e x i s t e n c e
o f
t h e
e a s e m e n t
h a s
b e e n
j u d i c i a l l y
d e c l a r e d , i t w i l l be n e c e s s a r y
t h e n f o r t h i s
c o u r t
t o
d e t e r m i n e
C o a l e ' s
l i a b i l i t y
f o r
w r o n g f u l l y
i n t e r f e r i n g w i t h C h i e p a l i c h ' s e f f o r t s t o remove t h e
t i m b e r
f r o m
h i s p r o p e r t y .
The
e v i d e n c e
t o
be
p r e s e n t e d
i n t h i s
r e g a r d
w i l l
d i f f e r
s u b s t a n t i a l l y
f r o m
t h e e v i d e n c e
t o be
p r e s e n t e d
i n t h e
C l a r k e
C o u n t y
m a t t e r . "
The
t r i a l c o u r t
f a i l e d t o d i s p o s e o f t h e C h i e p a l i c h s ' m o t i o n
t o
v a c a t e
w i t h i n 90 d a y s ;
t h u s ,
t h e m o t i o n was
d e n i e d
b y
o p e r a t i o n o f l a w . S e e R u l e 5 9 . 1 , A l a .
R. C i v .
P.
On A u g u s t
20,
2007, t h e t r i a l
c o u r t
c e r t i f i e d t h e o r d e r o f M a r c h 28,
2007, as a f i n a l j u d g m e n t u n d e r R u l e 5 4 ( b ) , A l a .
R. C i v . P.
The
C h i e p a l i c h s
a p p e a l e d .
S t a n d a r d o f R e v i e w
When t h e f a c t s u n d e r l y i n g a m o t i o n t o d i s m i s s b a s e d on §
6-5-440 a r e u n d i s p u t e d ,
r e v i e w o f t h e a p p l i c a t i o n o f t h e l a w
t o
t h o s e
f a c t s i s de n o v o . Ex p a r t e M e t r o p o l i t a n P r o p . & C a s .
I n s .
Co., 974 So. 2d 967, 969 ( A l a . 2 0 0 7 ) .
D i s c u s s i o n
On a p p e a l , t h e C h i e p a l i c h s a r g u e t h a t t h e M o b i l e
C i r c u i t
C o u r t
s h o u l d n o t have
d i s m i s s e d
t h e i r
c l a i m s
a g a i n s t
C o a l e
b a s e d on § 6-5-440 b e c a u s e , t h e y s a y , t h e a c t i o n i n t h e M o b i l e
5
1061725
C i r c u i t C o u r t i s
n o t b a s e d on t h e same c a u s e o f a c t i o n as t h e
a c t i o n p e n d i n g i n t h e C l a r k e C i r c u i t C o u r t .
We
a g r e e .
S e c t i o n 6-5-440, A l a .
Code 1975, p r o v i d e s :
"No
p l a i n t i f f
i s e n t i t l e d
t o p r o s e c u t e
two
a c t i o n s i n t h e c o u r t s o f t h i s s t a t e a t t h e same t i m e
f o r t h e same c a u s e and a g a i n s t t h e same p a r t y . I n
s u c h a c a s e , t h e d e f e n d a n t may r e q u i r e t h e p l a i n t i f f
t o
e l e c t
w h i c h
he
w i l l
p r o s e c u t e ,
i f commenced
s i m u l t a n e o u s l y , and t h e p e n d e n c y o f t h e f o r m e r i s a
g o o d d e f e n s e t o t h e l a t t e r i f
commenced a t d i f f e r e n t
t i m e s . "
"The
p u r p o s e
o f § 6-5-440 and i t s
p r e d e c e s s o r s i s t o
p r e v e n t
u n n e c e s s a r y and v e x a t i o u s
l i t i g a t i o n . "
S h e p h e r d
v .
M a r i t i m e O v e r s e a s
C o r p . , 614 So. 2d 1048, 1050 ( A l a . 1 9 9 3 ) .
T h i s C o u r t h a s a l s o s t a t e d t h a t " t h e p u r p o s e o f § 6-5-440 i s
t o p r e v e n t a p a r t y f r o m h a v i n g t o d e f e n d a g a i n s t two s u i t s i n
d i f f e r e n t
c o u r t s a t t h e same
t i m e
b r o u g h t
by
t h e same
p l a i n t i f f on t h e same c a u s e o f a c t i o n . " L.A. D r a p e r & Son,
I n c . v. W h e e l a b r a t o r - F r y e , I n c . ,
454 So. 2d 506, 508
( A l a .
1 9 8 4 ) .
T h i s C o u r t h a s h e l d t h a t t h e a p p l i c a t i o n o f § 6-5-440 i s
g u i d e d
b y
" w h e t h e r
a j u d g m e n t
i n one
s u i t
w o u l d
be r e s
j u d i c a t a o f t h e o t h e r . " S e s s i o n s v . J a c k C o l e Co., 276
A l a .
10, 12, 158 So. 2d 652, 654-55
( 1 9 6 3 ) .
"Where t h e r e i s no
q u e s t i o n as t o t h e j u r i s d i c t i o n o f t h e c o u r t o r as t o t h e
6
1061725
i d e n t i t y
o f t h e p a r t i e s ,
t h e
t e s t
f o r d e t e r m i n i n g
[ t h e
a p p l i c a b i l i t y o f t h e d o c t r i n e o f r e s j u d i c a t a ] i s
w h e t h e r t h e
i s s u e s i n t h e two s u i t s a r e t h e same and w h e t h e r t h e same
e v i d e n c e w o u l d s u p p o r t a r e c o v e r y
i n b o t h
s u i t s . "
S e s s i o n s ,
276
A l a . a t 13, 158 So. 2d a t 655; s e e a l s o E q u i t y R e s . Mgmt.,
I n c . v. V i n s o n , 723 So. 2d 634, 637 ( A l a . 1998) ( h o l d i n g
t h a t
f o r r e s j u d i c a t a p u r p o s e s t h e c a u s e o f a c t i o n i s
t h e same when
" s u b s t a n t i a l l y t h e same e v i d e n c e w o u l d s u p p o r t a r e c o v e r y i n
b o t h
a c t i o n s " ) .
"The d o c t r i n e o f r e s j u d i c a t a a p p l i e s n o t
o n l y
t o t h e e x a c t
l e g a l
t h e o r i e s
p r e s e n t e d
i n t h e p r i o r
a c t i o n , b u t t o ' a l l l e g a l t h e o r i e s and c l a i m s
a r i s i n g o u t o f
t h e same n u c l e u s o f o p e r a t i v e
f a c t s . ' " Ex p a r t e LCS I n c . , 12
So.
3d 55, 58
( A l a . 2008)
( q u o t i n g O l d R e p u b l i c
I n s . Co. v .
L a n i e r , 790 So. 2d 922, 928
( A l a . 2 0 0 0 ) ) .
"A d i f f e r e n c e i n
t h e e l e m e n t o f damages i s n o t g r o u n d s f o r d i s t i n g u i s h i n g two
c a u s e s
o f a c t i o n
f o r r e s j u d i c a t a
p u r p o s e s . "
R o b i n s o n v .
H o l l e y , 549 So. 2d 1, 2 ( A l a . 1 9 8 9 ) .
I n t h e p r e s e n t c a s e , t h e i s s u e s o f f a c t and l a w i n t h e
t o r t
c l a i m s
i n t h e M o b i l e
C i r c u i t
C o u r t a r e s u b s t a n t i a l l y
d i f f e r e n t f r o m t h e i s s u e s o f f a c t and l a w i n t h e d e c l a r a t o r y -
j u d g m e n t a c t i o n i n t h e C l a r k e
C i r c u i t C o u r t , and t h e e v i d e n c e
7
1061725
n e c e s s a r y
t o s u p p o r t
o r r e f u t e c l a i m s t h a t C o a l e
w r o n g f u l l y
i n t e r f e r e d w i t h t h e C h i e p a l i c h s ' e f f o r t s
t o remove and
s e l l
t i m b e r f r o m t h e i r p r o p e r t y i s s u b s t a n t i a l l y d i f f e r e n t f r o m t h e
e v i d e n c e
n e c e s s a r y
t o
s u p p o r t
o r
r e f u t e
a
c l a i m
t h a t
an
e a s e m e n t a c r o s s C o a l e ' s p r o p e r t y e x i s t s .
I n t h e
" t h i r d - p a r t y
c o m p l a i n t "
f i l e d
i n t h e M o b i l e
C i r c u i t C o u r t ,
i n a d d i t i o n t o
a l l e g i n g t h a t an e a s e m e n t e x i s t s t h a t a l l o w s t h e C h i e p a l i c h s
t o
a c c e s s
t h e i r p r o p e r t y u s i n g t h e o l d s e t t l e m e n t
r o a d ,
t h e
C h i e p a l i c h s make t h e f o l l o w i n g f a c t u a l a l l e g a t i o n s :
(1) B e f o r e
t h e e v e n t s
u n d e r l y i n g t h i s
a c t i o n , C o a l e
had a c k n o w l e d g e d i n
w r i t i n g
t h a t
t h e
C h i e p a l i c h s
had
a
r i g h t
t o
use
t h e
o l d
s e t t l e m e n t
r o a d ;
(2) i n t h e m i d - 1 9 8 0 s , C o a l e
s o u g h t a
l e g a l
o p i n i o n as t o w h e t h e r he had
t h e
r i g h t t o i n t e r f e r e w i t h
t h e
C h i e p a l i c h s '
use
o f t h e o l d s e t t l e m e n t
r o a d
and
was
a d v i s e d
t h a t he c o u l d n o t i n t e r f e r e w i t h t h e i r use o f t h e r o a d ;
(3) i n
S e p t e m b e r 2004 and a g a i n i n A u g u s t 2005, two h u r r i c a n e s
f e l l e d
a
s u b s t a n t i a l
amount
o f
t i m b e r
on
t h e i r
p r o p e r t y ;
(4)
i n
December 2005, t h e y
n o t i f i e d C o a l e
t h a t t h e y i n t e n d e d t o
use
t h e o l d s e t t l e m e n t r o a d t o remove t h e
f a l l e n t i m b e r f r o m
t h e
p r o p e r t y ;
(5) C o a l e
r e f u s e d t o a l l o w a c c e s s
t o t h e
p r o p e r t y
v i a
t h e
o l d
s e t t l e m e n t
r o a d
e v e n
t h o u g h
he
knew
t h a t
t h e
8
1061725
e a s e m e n t e x i s t e d ;
(6) a l t h o u g h t h e C h i e p a l i c h s had n e g o t i a t e d
w i t h a t h i r d p a r t y t o remove and
s e l l
t h e
f a l l e n t i m b e r ,
t h e
c o n t r a c t f o r t h e s a l e o f t h e t i m b e r was n o t consummated
s o l e l y
b e c a u s e o f t h e
i n a b i l i t y o f t h e t h i r d p a r t y t o g a i n a c c e s s
t o
t h e
t i m b e r
by
way
o f
t h e
o l d s e t t l e m e n t
r o a d ;
and
(7)
t h e
C h i e p a l i c h s s u f f e r e d a t o t a l
l o s s o f t h e v a l u e o f t h e
t i m b e r
as
a
r e s u l t
o f
C o a l e ' s
r e f u s a l
t o
a l l o w
a c c e s s
t o
t h e
C h i e p a l i c h s ' p r o p e r t y v i a t h e o l d s e t t l e m e n t
r o a d .
These
a d d i t i o n a l
a l l e g a t i o n s
i n t h e
c o m p l a i n t
f i l e d
i n
M o b i l e C i r c u i t C o u r t i n v o l v e m o s t l y e v e n t s t h a t o c c u r r e d
a f t e r
t h e
c o m p l a i n t
was
f i l e d
i n t h e
C l a r k e
C i r c u i t
C o u r t ;
t h e y
p o t e n t i a l l y g i v e r i s e t o new
c a u s e s o f a c t i o n ; and t h e y do
n o t
r e l a t e
s o l e l y
t o
t h e
c o m p u t a t i o n
o f damages.
U n d e r
R u l e
1 5 ( d ) , A l a . R. C i v . P.,
t h e
f i l i n g o f a s u p p l e m e n t a l
p l e a d i n g
s e t t i n g f o r t h e v e n t s t h a t h a v e o c c u r r e d s i n c e t h e d a t e o f t h e
c o m p l a i n t
i s
o p t i o n a l .
T h e r e f o r e ,
c l a i m s
b a s e d
on
t h o s e
e v e n t s
a r e
n o t
c l a i m s
t h a t
s h o u l d have b e e n b r o u g h t
i n
an
e a r l i e r c a s e u n d e r t h e d o c t r i n e o f r e s j u d i c a t a .
See
M a n n i n g
v.
C i t y
o f
A u b u r n ,
953
F.2d
1355,
1360
( 1 1 t h
C i r . 1992 )
( a p p l y i n g t h e f e d e r a l c o u n t e r p a r t t o R u l e 1 5 ( d ) , A l a . R.
C i v .
P.,
and h o l d i n g t h a t , f o r r e s j u d i c a t a p u r p o s e s ,
c l a i m s t h a t
9
1061725
" c o u l d have b e e n b r o u g h t "
i n an e a r l i e r
a c t i o n a r e c l a i m s i n
e x i s t e n c e
a t t h e t i m e
t h e
o r i g i n a l
c o m p l a i n t
was
f i l e d
o r
c l a i m s t h a t were a c t u a l l y a s s e r t e d i n t h e e a r l i e r a c t i o n , n o t
c l a i m s t h a t a r i s e
a f t e r t h e o r i g i n a l
c o m p l a i n t was
f i l e d i n
t h e
e a r l i e r
a c t i o n ) .
A l t h o u g h
t h e
C h i e p a l i c h s '
t o r t
c l a i m s
i n t h e
M o b i l e
C i r c u i t C o u r t may be b a r r e d i f t h e C l a r k e C i r c u i t C o u r t
h o l d s
t h a t
an e a s e m e n t
does n o t
e x i s t ,
a
f i n d i n g
by t h e
C l a r k e
C i r c u i t
C o u r t
t h a t
an
e a s e m e n t
does
e x i s t
w o u l d
n o t
be
c o n c l u s i v e o f and o p e r a t e as a b a r t o t h e t o r t c l a i m s i n t h e
M o b i l e
C i r c u i t
C o u r t .
The
e v i d e n c e
n e c e s s a r y
t o s u p p o r t
a
r e c o v e r y i n e a c h a c t i o n i s s u b s t a n t i a l l y d i f f e r e n t .
The
t o r t
c l a i m s
r e q u i r e p r o o f
o f
a d d i t i o n a l
e l e m e n t s
t h a t
a r e n o t
m a t e r i a l t o d e c i d i n g w h e t h e r an e a s e m e n t e x i s t s .
2
A j u d g m e n t
i n
t h e
a c t i o n
i n
t h e
C l a r k e
C i r c u i t
C o u r t
w o u l d
n o t
2Compare W a l l s v. S t a t e Farm Mut. A u t o I n s . Co., 984 So.
2d
412,
414
( A l a . 2007)
( s e t t i n g
f o r t h
t h e
e l e m e n t s
o f
i n t e n t i o n a l i n t e r f e r e n c e w i t h b u s i n e s s r e l a t i o n s ) ,
S o u t h T r u s t
Bank v. D o n e l y , 925 So. 2d 934, 939 ( A l a . 2005)
( s e t t i n g
f o r t h
t h e e l e m e n t s
o f c o n v e r s i o n ) , A r m s t r o n g
B u s . S e r v s . , I n c . v .
AmSouth Bank,
817
So. 2d 665, 679-80
( A l a . 2001)
( s e t t i n g
f o r t h t h e e l e m e n t s
o f n e g l i g e n c e and w a n t o n n e s s ) ,
and B o r l a n d
v.
S a n d e r s
L e a d
Co.,
369
So.
2d
523,
529-30
( A l a . 1979)
( s e t t i n g
f o r t h t h e e l e m e n t s
o f t r e s p a s s and n u i s a n c e ) ,
w i t h
H e r e f o r d v . G i n g o - M o r g a n P a r k , 551 So. 2d 918, 921 ( A l a . 1989)
( s e t t i n g
f o r t h
t h e
e l e m e n t s
o f e a s e m e n t
by
p r e s c r i p t i o n ,
e a s e m e n t by i m p l i c a t i o n , and e a s e m e n t b y
n e c e s s i t y ) .
10
1061725
n e c e s s a r i l y be r e s j u d i c a t a as t o t h e a c t i o n i n t h e M o b i l e
C i r c u i t C o u r t ; t h u s , t h e M o b i l e
C i r c u i t C o u r t ' s d i s m i s s a l o f
t h e C h i e p a l i c h s ' c l a i m s a g a i n s t C o a l e b a s e d on § 6-5-440,
A l a .
Code 1975, was
i m p r o p e r .
C o n c l u s i o n
B a s e d on t h e f o r e g o i n g , we
r e v e r s e t h e M o b i l e
C i r c u i t
C o u r t ' s
j u d g m e n t
and
remand
t h i s
c a s e
f o r
p r o c e e d i n g s
c o n s i s t e n t w i t h t h i s o p i n i o n .
REVERSED AND REMANDED.
Cobb, C . J . , and W o o d a l l ,
S m i t h ,
P a r k e r , and Shaw,
J J . ,
c o n c u r .
11 | October 16, 2009 |
814225c1-ed41-45b0-8b69-ad9945d0a3a2 | Macon County Greyhound Park, Inc., d/b/a Victoryland v. Sherry Knowles | N/A | 1080466 | Alabama | Alabama Supreme Court | REL 11/20/09
Notice: T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e
advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e
r e q u e s t e d t o
n o t i f y t h e
Reporter of
Decisions,
Alabama
A p p e l l a t e
C o u r t s ,
300 D e x t e r Avenue, Montgomery, Alabama 36104-3741
((334)
2 2 9 - 0 6 4 9 ) , o f
any t y p o g r a p h i c a l o r o t h e r
e r r o r s , i n
o r d e r
t h a t c o r r e c t i o n s may be made
b e f o r e t h e
o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1080466
Macon County Greyhound Park, Inc.,
d/b/a V i c t o r y l a n d
v.
Sherry Knowles
Appeal from Macon C i r c u i t
Court
(CV-06-99)
WOODALL, J u s t i c e .
Macon
C o u n t y
G r e y h o u n d P a r k ,
I n c . ,
d/b/a V i c t o r y l a n d
( " V i c t o r y l a n d " ) ,
a p p e a l s f r o m a summary j u d g m e n t f o r S h e r r y
K n o w l e s i n t h e amount o f $10,000,000 i n K n o w l e s ' s
a c t i o n
a l l e g i n g
t h a t
V i c t o r y l a n d b r e a c h e d a c o n t r a c t t o p a y h e r
a
$41,800,000 b i n g o
" j a c k p o t . "
We r e v e r s e a n d remand.
1080466
I . F a c t u a l and P r o c e d u r a l
B a c k g r o u n d
T h i s c a s e a r i s e s o u t o f A l a . C o n s t . 1 9 0 1 , Amend. No. 744
( L o c a l Amendments, Macon C o u n t y , § 1, A l a .
C o n s t . 1901 ( O f f .
R e c o m p . ) ) ,
w h i c h a u t h o r i z e s
" [ t ] h e o p e r a t i o n o f b i n g o games
f o r p r i z e s o r money b y n o n p r o f i t o r g a n i z a t i o n s f o r
c h a r i t a b l e ,
e d u c a t i o n a l ,
o r o t h e r
l a w f u l p u r p o s e s
... i n Macon
C o u n t y . "
Amendment
No. 744
f u r t h e r
a u t h o r i z e s
t h e s h e r i f f
o f Macon
C o u n t y t o " p r o m u l g a t e r u l e s a n d r e g u l a t i o n s f o r
t h e l i c e n s i n g
a n d o p e r a t i o n o f b i n g o games w i t h i n t h e c o u n t y . " I n f o r c e a t
a l l t i m e s r e l e v a n t t o t h i s a c t i o n w e r e t h e " S e c o n d Amended and
R e s t a t e d
B i n g o R e g u l a t i o n s
f o r
t h e L i c e n s i n g and O p e r a t i o n o f
B i n g o Games i n Macon C o u n t y "
("the s h e r i f f ' s
r e g u l a t i o n s " ) ,
p r o m u l g a t e d b y t h e Macon C o u n t y
s h e r i f f p u r s u a n t t o Amendment
No. 744.
The
s t a t e d
p u r p o s e
o f t h e s h e r i f f ' s
r e g u l a t i o n s
i s t o
" a d o p t
t h e p o l i c y o f t h e A t t o r n e y
G e n e r a l i n l i m i t i n g t h e
c o n d u c t
o f
C l a s s
B b i n g o
g a m i n g
i n Macon
C o u n t y
t h e r e b y
a l l o w i n g t h e S h e r i f f t o more e f f e c t i v e l y r e g u l a t e and
e n f o r c e
t h e p r o p e r c o n d u c t o f b i n g o games."
The s h e r i f f ' s
r e g u l a t i o n s
c o m p r i s e
12
p a g e s
o f
t e x t ,
w h i c h
a r e
d i v i d e d
i n t o
t h e
f o l l o w i n g 18 s e c t i o n s : (1) " D e f i n i t i o n s " ; (2) " O p e r a t i o n o f
2
1080466
B i n g o Games i n Macon C o u n t y " ; (3) " B i n g o L i c e n s e
R e q u i r e d " ;
(4) " A p p l i c a t i o n f o r
L i c e n s e ; S u b m i s s i o n ; Form; C o n t e n t s " ; (5)
" I s s u a n c e
o f
L i c e n s e " ;
(6)
"Amendments;
A p p l i c a t i o n s ;
L i c e n s e s " ;
(7) " C o n t e n t s a n d D i s p l a y o f L i c e n s e s " ;
(8) "Fee
P r o c e e d s " ;
(9) " G e n e r a l
R e g u l a t i o n s ;
P r i z e s " ;
(10) " R e c o r d s
and
A c c o u n t i n g " ;
(11) " E n f o r c e m e n t a n d S u p e r v i s i o n ;
R u l e s ;
B o n d s " ; (12) " R e v o c a t i o n o f L i c e n s e s ; A p p e a l " ;
(13) " E f f e c t o f
R e v o c a t i o n " ;
(14)
" A p p e a l
o f
D e n i a l
o f
L i c e n s e " ;
(15)
" C o m p l i a n c e
w i t h
F e d e r a l
Law";
(16) " S e v e r a b i l i t y " ;
(17)
"Amendments"; a n d (18) " E f f e c t i v e
D a t e . "
" B i n g o " i s d e f i n e d i n
§ 1 as
"any
game o f c h a n c e known as b i n g o ,
i n c l u d i n g any
b i n g o game p e r m i t t e d by f e d e r a l l a w , ( w h e t h e r o r
n o t
e l e c t r o n i c , c o m p u t e r , o r o t h e r t e c h n o l o g i c a i d s a r e
u s e d i n c o n n e c t i o n
t h e r e w i t h )
w h i c h i s p l a y e d f o r
p r i z e s ,
w i t h
c a r d s
b e a r i n g
numbers
o r
o t h e r
d e s i g n a t i o n s , a n d [ i n ] w h i c h t h e h o l d e r o f t h e c a r d
c o v e r s
s u c h numbers o r d e s i g n a t i o n s when
o b j e c t s ,
s i m i l a r l y
n u m b e r e d
o r
d e s i g n a t e d ,
a r e drawn o r
e l e c t r o n i c a l l y d e t e r m i n e d , a n d i n w h i c h t h e game i s
won
b y t h e
f i r s t
p e r s o n
c o v e r i n g
a
p r e v i o u s l y
d e s i g n a t e d a r r a n g e m e n t o f numbers o r d e s i g n a t i o n s on
s u c h
c a r d s .
The b i n g o game must
i n c o r p o r a t e t h e
t y p i c a l
f e a t u r e s o f t r a d i t i o n a l
b i n g o ,
i n c l u d i n g ,
b u t n o t l i m i t e d t o , a g r i d o f f i v e
h o r i z o n t a l a n d
f i v e
v e r t i c a l
s q u a r e s ,
numbers
r a n d o m l y
s e l e c t e d ,
and
a
p r e o r d a i n e d
w i n n i n g
p a t t e r n .
A l t e r n a t i v e
e n t e r t a i n i n g
d i s p l a y s
s u c h as s p i n n i n g
r e e l s a n d
o t h e r v i d e o o r m e c h a n i c a l g r a p h i c s a r e p e r m i t t e d b u t
must n o t a f f e c t game p l a y .
J u s t as i n t r a d i t i o n a l
b i n g o
h a l l s ,
p l a y e r s on e l e c t r o n i c b i n g o
m a c h i n e s
3
1080466
must compete a g a i n s t one a n o t h e r .
C o n s e q u e n t l y , t h e
e l e c t r o n i c m a c h i n e s must be l i n k e d so t h a t
p l a y e r s
a r e c o m p e t i n g a g a i n s t e a c h o t h e r .
N o t h i n g h e r e i n i s
i n t e n d e d
t o
p r o h i b i t
t h e
a w a r d
o f
i n t e r i m
o r
c o n s o l a t i o n p r i z e s .
E l e c t r o n i c , c o m p u t e r o r
o t h e r
t e c h n o l o g i c
a i d s i n c l u d e any m a c h i n e o r d e v i c e
t h a t
a s s i s t s
a p l a y e r
o r t h e p l a y i n g o f a b i n g o game;
b r o a d e n s t h e p a r t i c i p a t i o n
l e v e l s i n a common game;
f a c i l i t a t e s
c o m m u n i c a t i o n b e t w e e n and among
b i n g o
l o c a t i o n s ; o r a l l o w s p l a y e r s t o p l a y a game w i t h o r
a g a i n s t
o t h e r p l a y e r s
r a t h e r t h a n w i t h o r a g a i n s t a
m a c h i n e .
E x a m p l e s o f e l e c t r o n i c , c o m p u t e r o r
o t h e r
t e c h n o l o g i c
a i d s
i n c l u d e , b u t a r e n o t l i m i t e d t o ,
d i s p e n s e r s ,
r e a d e r s ,
e l e c t r o n i c
p l a y e r
s t a t i o n s ,
e l e c t r o n i c
c a r d s
f o r p a r t i c i p a n t s i n b i n g o
games,
p l a y e r t e r m i n a l s , c e n t r a l s e r v e r s
c o n t a i n i n g random
number
g e n e r a t o r s
f o r r e m o t e
p l a y e r
t e r m i n a l s
and
v i d e o
d i s p l a y s p r o v i d i n g game r e s u l t s i n d i f f e r e n t
d i s p l a y modes."
S e c t i o n 9, " G e n e r a l R e g u l a t i o n s ;
P r i z e s , " s t a t e s :
" ( a ) No p e r s o n u n d e r t h e age o f 19 y e a r s
s h a l l
be p e r m i t t e d t o p l a y any game o r games o f b i n g o , n o r
s h a l l
any
p e r s o n
u n d e r
t h e age
o f 19
y e a r s
be
p e r m i t t e d
t o c o n d u c t o r a s s i s t i n t h e o p e r a t i o n o f
any game o f
b i n g o .
" ( b )
No b i n g o
l i c e n s e
s h a l l be
i s s u e d t o any
n o n p r o f i t o r g a n i z a t i o n u n l e s s t h e o r g a n i z a t i o n
s h a l l
h a v e b e e n i n e x i s t e n c e f o r a t l e a s t t h r e e
(3) y e a r s
i n t h e c o u n t y i m m e d i a t e l y p r i o r t o t h e i s s u a n c e
o f
t h e p e r m i t o r l i c e n s e .
" ( c ) B i n g o games may be o p e r a t e d on t h e p r e m i s e s
owned
o r
l e a s e d
by
t h e
n o n p r o f i t
o r g a n i z a t i o n
o p e r a t i n g t h e b i n g o games.
"(d) A n o n p r o f i t o r g a n i z a t i o n may e n t e r
i n t o a
c o n t r a c t
w i t h any i n d i v i d u a l ,
f i r m , a s s o c i a t i o n o r
c o r p o r a t i o n t o have t h e i n d i v i d u a l o r e n t i t y
o p e r a t e
b i n g o
games
o r
c o n c e s s i o n s
on
b e h a l f
o f
t h e
4
1080466
n o n p r o f i t
o r g a n i z a t i o n .
A n o n p r o f i t
o r g a n i z a t i o n
may p a y c o n s u l t i n g f e e s t o any i n d i v i d u a l o r e n t i t y
f o r
any
s e r v i c e s
p e r f o r m e d
i n
r e l a t i o n
t o t h e
o p e r a t i o n o r c o n d u c t o f a b i n g o game.
" ( e ) A n o n p r o f i t o r g a n i z a t i o n may l e n d i t s
name
o r
a l l o w i t s i d e n t i t y t o be u s e d b y a n o t h e r
p e r s o n
o r e n t i t y i n
t h e o p e r a t i n g o r a d v e r t i s i n g o f a b i n g o
game i n w h i c h
t h e n o n p r o f i t
o r g a n i z a t i o n
i s n o t
d i r e c t l y a n d s o l e l y o p e r a t i n g t h e b i n g o game.
" ( f )
P r i z e s g i v e n b y any n o n p r o f i t
o r g a n i z a t i o n
f o r
t h e p l a y i n g o f b i n g o games s h a l l n o t e x c e e d t h e
c a s h
amount o r g i f t s
o f e q u i v a l e n t
v a l u e
s e t by
t h e s e R u l e s a n d R e g u l a t i o n s
f o r
any b i n g o
s e s s i o n .
F o r t h e p u r p o s e s o f t h e s e R u l e s a n d R e g u l a t i o n s ,
no
s i n g l e p r i z e g i v e n b y any n o n p r o f i t o r g a n i z a t i o n , o r
on i t s
b e h a l f , f o r
t h e p l a y i n g o f b i n g o games
s h a l l
e x c e e d
$20,000,000
i n c a s h
o r
e q u i v a l e n t
v a l u e
d u r i n g any b i n g o
s e s s i o n .
" ( g ) No p e r s o n who h a s b e e n
c o n v i c t e d
o f a
f e l o n y o f f e n s e , a n d whose c i v i l
r i g h t s have n o t b e e n
r e s t o r e d
b y l a w ,
s h a l l
c o n d u c t
o r i n any way
p a r t i c i p a t e
i n t h e o p e r a t i o n
o f a n y b i n g o
game
p e r m i t t e d
h e r e u n d e r , n o r s h a l l any p e r s o n who h a s
b e e n c o n v i c t e d o f a n y g a m b l i n g o f f e n s e be
p e r m i t t e d
t o
c o n d u c t
o r i n any way
p a r t i c i p a t e
i n t h e
o p e r a t i o n
o f any b i n g o
game
p e r m i t t e d
h e r e u n d e r
w i t h i n 12 months o f t h e c o n v i c t i o n . "
S e c t i o n
11, " E n f o r c e m e n t
a n d
S u p e r v i s i o n ;
R u l e s ;
B o n d s , "
s t a t e s :
" ( a ) The S h e r i f f s h a l l be c h a r g e d w i t h t h e d u t y
t o
a n d
s h a l l
e n f o r c e
a n d
s u p e r v i s e
t h e
a d m i n i s t r a t i o n a n d e n f o r c e m e n t o f a l l
o f t h e r u l e s ,
r e g u l a t i o n s a n d r e p o r t i n g
r e q u i r e d
h e r e u n d e r .
I n
a d d i t i o n
t o t h e s e
r e g u l a t i o n s ,
t h e S h e r i f f
s h a l l
e n f o r c e
a l l a p p l i c a b l e
c r i m i n a l a n d c i v i l
l a w s o f
5
1080466
t h e
S t a t e
o f A l a b a m a t o p r e v e n t
and
d i s c o u r a g e
any
i l l e g a l
a c t i v i t y .
"(b)
The
S h e r i f f
may
r e q u i r e
s u c h
a c c e p t a b l e
s u r e t i e s a n d / o r b o n d s w h i c h he deems r e a s o n a b l e
o r
n e c e s s a r y
t o
i n s u r e
[ s i c ] p r o p e r
c o m p l i a n c e
w i t h
t h e s e
R u l e s
and
R e g u l a t i o n s
and
t h e
s u b m i s s i o n
o f
s u c h
a c c e p t a b l e
s u r e t i e s
o r
b o n d s
s h a l l
be
a
c o n d i t i o n p r e c e d e n t t o t h e
i s s u a n c e
o f any
l i c e n s e
h e r e u n d e r .
The
o p e r a t o r
and
s u r e t y
o r
s u r e t i e s
s h a l l
be
j o i n t l y
and
s e v e r a l l y
r e s p o n s i b l e
f o r
payment o f p r i z e s t o w i n n e r s ,
s a i d payment t o
o c c u r
no
l a t e r t h a n t h e end
o f t h e s e s s i o n d u r i n g w i t h
t h e
p r i z e was
won."
P u r s u a n t
t o
a u t h o r i z a t i o n by
t h e Macon C o u n t y
s h e r i f f ,
V i c t o r y l a n d c o n d u c t s b i n g o games i n Macon C o u n t y on b e h a l f
o f
60 n o n p r o f i t o r g a n i z a t i o n s i n Macon C o u n t y .
K n o w l e s d e s c r i b e s
t h e game i n v o l v e d i n t h i s
a p p e a l
as
" b i n g o [ t h a t ] i s
p l a y e d
e l e c t r o n i c a l l y
w i t h
s l o t m a c h i n e
d e v i c e s
w h e r e b y
t h e
b i n g o
c a r d
a p p e a r s
on
a v i d e o
s c r e e n
d i s p l a y e d
on
t h e e l e c t r o n i c
s l o t m a c h i n e . "
F o r p u r p o s e s o f
t h i s
a p p e a l
o n l y , we
a c c e p t
t h i s
g e n e r a l
d e s c r i p t i o n ,
as
w e l l
as
t h e
f o l l o w i n g
d e s c r i p t i o n s o f t h e o p e r a t i o n
o f t h e e l e c t r o n i c m a c h i n e s .
K n o w l e s
s u e d
V i c t o r y l a n d
and
M u l t i m e d i a
Games,
I n c .
( " M u l t i m e d i a " ) ,
a l l e g i n g t h a t , on May
2, 2006, w h i l e
she
was
p l a y i n g
b i n g o
a t
V i c t o r y l a n d on
a m a c h i n e
m a n u f a c t u r e d
by
M u l t i m e d i a ,
she
" h i t
a
j a c k p o t
o f
$ 4 1 , 8 0 0 , 0 0 0 , "
w h i c h
V i c t o r y l a n d
and
M u l t i m e d i a
r e f u s e d
t o
p a y .
She
s o u g h t
6
1080466
$41,800,000 i n c o m p e n s a t o r y damages f o r b r e a c h o f a
" c o n t r a c t
t o pay
j a c k p o t
w i n n i n g s . "
The
m a c h i n e on w h i c h K n o w l e s
was
p l a y i n g when
she
won
t h e
a l l e g e d
" j a c k p o t "
w o r k e d
i n
t h e
f o l l o w i n g manner.
A.
The
M a c h i n e
A p r o s p e c t i v e
p l a y e r may
b e g i n
p l a y by b e c o m i n g a member
o f
t h e
Q u i n c y ' s
T r i p l e
7
P l a y e r s
C l u b
("Q-Club")
and
p u r c h a s i n g
an
e l e c t r o n i c - b i n g o
c r e d i t c a r d
("the
Q - c a r d " ) .
The Q - c a r d c o n t a i n s
c r e d i t s t h a t can be a c q u i r e d by i n s e r t i n g
i t and money i n t o an e l e c t r o n i c - b i n g o m a c h i n e .
A p l a y e r j o i n s
a game by
i n s e r t i n g t h e Q - c a r d and
p l a y i n g t h e
s i m u l a t e d ,
5-
l i n e b i n g o c a r d t h a t a p p e a r s on
t h e v i d e o
s c r e e n .
On
t h e b o t t o m l e f t o f t h e v i d e o
s c r e e n
i s an i c o n l a b e l e d
"HELP PAYTABLE."
T h i s
i c o n
p r o v i d e s
a c c e s s
t o
two
" h e l p "
s c r e e n s c o n t a i n i n g
i n s t r u c t i o n s f o r p l a y i n g t h e game.
Those
i n s t r u c t i o n s
a r e
as
f o l l o w s :
"• ADD
CREDITS TO PLAY
" I n s e r t p l a y e r
c a r d
t o
s t a r t
s e s s i o n
(see
c a s h i e r f o r p l a y e r
c a r d ) .
"•PRESS 'DISPLAY' FOR
LARGE BINGO CARD
"•TOUCH SMALL BINGO CARD TO CHANGE CARD NUMBERS
"•SELECT NUMBER OF CREDITS TO WAGER
"See
f o l l o w i n g p a g e s f o r
d e t a i l s .
7
1080466
PRESS 'PLAY' TO START
"'PLAY'
j o i n s
a
m u l t i p l a y e r
b i n g o
game.
'PLAY'
w i l l
a l s o
r e b e t
and
j o i n
game.
I n s u f f i c i e n t number o f p l a y e r s r e f u n d s b e t .
PRESS 'CLAIM' TO DAUB CARD AND
CLAIM PRIZE
" P r i z e s a r e a w a r d e d f o r b a l l s drawn t o
t h e
g a m e - e n d i n g
TRIANGLE
p a t t e r n
o r
f o r
t h e
f i r s t
30
b a l l s
( w h i c h e v e r i s
f e w e r ) .
REMOVE PLAYER CARD TO
END
SESSION
" R e m a i n i n g
c r e d i t s
( o r
p a r t i a l
c r e d i t s )
w i l l
be
a p p l i e d t o p l a y e r
c a r d
a c c o u n t .
SELECT THE NUMBER OF CREDITS TO WAGER
" P l a y
1 c r e d i t on e a c h o f
1 t o 5
p a y l i n e s
a t a t i m e .
P r e s s
'BET
ONE'
t o a c t i v a t e t h e
1 s t
p a y l i n e .
P r e s s
'BET
ONE'
a g a i n
t o
i n c r e a s e
w a g e r
by
1
c r e d i t
&
p a y l i n e .
P r e s s
'MAX
BET'
t o a c t i v a t e a l l 5 p a y l i n e s
and
s t a r t game.
WIN
JACKPOT OF 10,000 CREDITS
" C o v e r i n g
t h e LETTER K b i n g o p a t t e r n
w i t h
max
c r e d i t s b e t
r e s u l t s
i n
t h r e e
D o u b l e
J a c k p o t
s y m b o l s
on
t h e
f i f t h
p a y l i n e
and
w i n s t h e
j a c k p o t .
SELECT GAME DENOMINATION
" I f
m u l t i - d e n o m i s e n a b l e d , c h a n g e c r e d i t
v a l u e
b e t w e e n
p l a y s
by
t o u c h i n g
d e n o m i n a t i o n
"•PRESS 'DAUB GENIUS' TO TURN ON
THE AUTOMATIC DAUB
& CLAIM FEATURE
" T u r n i n g
on
t h e
Daub
G e n i u s
[ f e a t u r e ]
a u t o m a t i c a l l y
daubs
and
c l a i m s
u n t i l
d e a c t i v a t e d
o r s e s s i o n e n d s .
T u r n o f f
t h e
Daub G e n i u s
by
p r e s s i n g
[ t h e Daub
G e n i u s
i c o n ]
a g a i n . "
8
1080466
( E m p h a s i s
added.)
The
f i r s t
h e l p
s c r e e n
c o n t a i n s
t h r e e
m e t e r s :
(1) a " p a i d " m e t e r , (2) a " c r e d i t s " m e t e r , and (3) a
" b e t i n " m e t e r .
T h e s e t h r e e m e t e r s a l s o a p p e a r on t h e f a c e o f
t h e v i d e o
s c r e e n
d u r i n g
p l a y .
A t
t h e b o t t o m
r i g h t
o f t h e s e c o n d
" h e l p "
s c r e e n
i s a
"PAYTABLE"
i c o n .
P r e s s i n g
t h e PAYTABLE
i c o n
a c c e s s e s
15
s c r e e n s
c o n t a i n i n g 259 p o s s i b l e b i n g o - c a r d
p a t t e r n s .
E a c h
p a t t e r n
i s a s s o c i a t e d
w i t h
a
s p e c i f i c
c r e d i t
v a l u e .
The
c r e d i t s r a n g e f r o m a h i g h o f 10,020 c r e d i t s f o r t h e "LETTER K
b i n g o
p a t t e r n , " t o a l o w o f 2 c r e d i t s f o r c e r t a i n
p a t t e r n s ,
i n c l u d i n g a " s n a k e - e y e s " c o n f i g u r a t i o n .
As
t h e
" h e l p "
s c r e e n s
i n d i c a t e ,
b e t t i n g
i n v o l v e s t h e
i n t e r p l a y o f money and c r e d i t s , and p r i z e s a r e won i n c r e d i t s .
B e t s a r e made a t a r a t e o f 2 5 ^ , 50^, o r $1 p e r l i n e on t h e
s i m u l a t e d
b i n g o
c a r d .
The
c r e d i t s
won
a r e
s u b s e q u e n t l y
c o n v e r t e d
i n t o money a t a r a t e o f 25^ p e r c r e d i t ,
50^ p e r
c r e d i t , o r $1 p e r c r e d i t ,
d e p e n d i n g on t h e d e n o m i n a t i o n t h e
p l a y e r has c h o s e n t o b e t . F o r e x a m p l e , t h e m o n e t a r y v a l u e o f
t h e 10,020 c r e d i t j a c k p o t r a n g e s f r o m $10,020 ( f o r
a $1 b e t )
t o $2,505 ( f o r
a 25^
b e t ) .
9
1080466
F i v e w i n n i n g "LETTER K b i n g o p a t t e r n s " a r e p o s s i b l e , e a c h
h a v i n g
i t s
own p a y o f f
v a l u e .
S u c h a p a t t e r n on t h e f i r s t
two
c r e d i t s / p a y l i n e s p a y s 2,000 c r e d i t s .
T h a t same p a t t e r n on t h e
s e c o n d two c r e d i t s / p a y l i n e s p a y s 2,002 c r e d i t s .
The "LETTER
K"
p a t t e r n
on t h e
f i f t h
c r e d i t / p a y l i n e , t h a t i s , w i t h
t h e
"maximum c r e d i t s b e t , " p a y s 10,020
c r e d i t s .
These p a y o u t s a r e e s s e n t i a l l y r e p r e s e n t e d
on t h e "awards
g l a s s "
o r
" u p p e r
c a b i n e t "
s i t u a t e d
on
t h e
f a c e
o f
t h e
e l e c t r o n i c - b i n g o
m a c h i n e
above
t h e
v i d e o
s c r e e n .
I n t h e
c e n t e r
o f t h e awards
g l a s s
a p p e a r t h e w o r d s : "PAYS ON
L I T
L I N E S . "
Above
t h e s e w o r d s i s a d i a g r a m i n d i c a t i n g t h a t t h e
p a y o u t f o r t h e "1ST CREDIT" i s "2000"; p a y o u t f o r t h e
"2ND
CREDIT" i s " 2 0 0 0 " ;
p a y o u t f o r t h e "3RD
CREDIT" i s "2000";
p a y o u t f o r t h e "4TH CREDIT" i s "2000"; and p a y o u t f o r t h e "5TH
CREDIT"
i s "10,000."
When a
p l a y e r
w i n s
a
j a c k p o t ,
t h e
f o l l o w i n g
message
a p p e a r s on
t h e
v i d e o
s c r e e n :
"YOU'RE
A
WINNER [$
] PLEASE WAIT FOR AN ATTENDANT."
O n l y t h e j a c k p o t
p a t t e r n
ends
t h e game.
However, a l l
m a c h i n e s a t V i c t o r y l a n d a r e programmed t o " l o c k up" when t h e
p l a y e r w i n s any p r i z e o f $1,200 o r more.
When s u c h a
l o c k u p
o c c u r s ,
t h e p l a y e r i s e s c o r t e d t o t h e " c a s h c a g e , " where t h e
10
1080466
p l a y e r i s r e q u i r e d t o c o m p l e t e t h e t a x d o c u m e n t s r e q u i r e d by
t h e
I n t e r n a l Revenue
S e r v i c e f o r w i n n i n g s o f $1,200 o r more.
No
f u r t h e r
t r a n s a c t i o n s
a r e p o s s i b l e
on
t h a t
b i n g o
m a c h i n e
u n t i l
one
o f V i c t o r y l a n d ' s
"gaming
d i r e c t o r s " u n l o c k s
t h e
m a c h i n e by i n s e r t i n g h i s o r h e r own c a r d .
The r u l e s
o u t l i n e d
i n
t h i s
P a r t
I.A.
s h a l l be r e f e r r e d t o as t h e " r u l e s o f t h e
w a g e r . "
B. The I n c i d e n t
I n v o l v i n g K n o w l e s
I n
2006,
K n o w l e s was
e m p l o y e d
as a
s e c r e t a r y
i n t h e
V i c t o r y l a n d p o l i c e d e p a r t m e n t . She and h e r h u s b a n d
f r e q u e n t l y
p l a y e d
e l e c t r o n i c - b i n g o
and
s l o t
m a c h i n e s
t h r o u g h o u t
t h e
S o u t h e a s t .
As e a r l y as 2003, she was w i n n i n g p r i z e s on t h e
e l e c t r o n i c - b i n g o m a c h i n e s a t V i c t o r y l a n d .
On
May
2,
2 0 0 6 ,
she
was
p l a y i n g
b i n g o
on
one
s u c h
m a c h i n e .
I n an a f f i d a v i t , she
s t a t e d :
"On
t h e
n i g h t
i n q u e s t i o n ,
I p l a y e d
s e v e r a l
d i f f e r e n t b i n g o games on d i f f e r e n t b i n g o m a c h i n e s .
However,
I
u l t i m a t e l y
b e g a n
p l a y i n g
on
m a c h i n e
number Y2H01-11462.
A f t e r p l a y i n g on t h a t
m a c h i n e
f o r a p e r i o d o f t i m e , I p l a c e d a one d o l l a r
($1.00)
b e t p e r l i n e and h i t t h e p l a y b u t t o n .
T h e r e a f t e r ,
t h e b i n g o
l i g h t s
t h a t a r e d i s p l a y e d on t h e m a c h i n e
l i t
up t o i n d i c a t e a w i n n i n g
p l a y .
A d d i t i o n a l l y ,
t h e
c r e d i t s
i n
t h e
c r e d i t
[ m e t e r ]
b e g a n
t o
a c c u m u l a t e . "
11
1080466
( E m p h a s i s added.)
I n o t h e r
w o r d s , K n o w l e s
a v e r s
t h a t
she
p l a c e d
a wager
and won
a p r i z e .
F o r t h e p u r p o s e s o f
t h i s
o p i n i o n , we
w i l l assume,
w i t h o u t
d e c i d i n g ,
t h a t she p l a c e d a
w a g e r .
As one o r more o f V i c t o r y l a n d ' s e m p l o y e e s w a t c h e d , t h e
number o f c r e d i t s i n t h e c r e d i t m e t e r c l i m b e d
t o
40,000,000
c r e d i t s and b e y o n d .
One e m p l o y e e was James Graham, a "gaming
manager" f o r V i c t o r y l a n d .
Graham n o t i c e d n o t o n l y t h e number
on t h e c r e d i t m e t e r , b u t a l s o t h e p a t t e r n
d i s p l a y e d on t h e
b i n g o c a r d K n o w l e s was p l a y i n g .
The p a t t e r n was " s n a k e e y e s . "
A c c o r d i n g t o K n o w l e s , one o f t h e e m p l o y e e s " a n n o u n c e d t h a t t h e
p l a y was n o t a v a l i d w i n , " r e m o v e d K n o w l e s ' s Q - c a r d , i n s e r t e d
h i s own
c a r d , and " c l e a r e d t h e b o a r d i n s u c h a f a s h i o n
t h a t
a l l
c r e d i t s were
d e l e t e d f r o m t h e m e t e r . "
She a l l e g e s
t h a t
t h e
l a s t
t i m e
anyone
l o o k e d
a t t h e
c r e d i t m e t e r ,
i t r e a d
41,800,000
c r e d i t s and was
s t i l l
c l i m b i n g .
K n o w l e s
c o n t i n u e d
t o p l a y
t h a t same m a c h i n e f o r some t i m e a f t e r t h e i n c i d e n t .
I n d e e d , a few m i n u t e s l a t e r , she won a $2,505
j a c k p o t on t h e
m a c h i n e f o r w h i c h she was
d u l y
p a i d .
S u b s e q u e n t l y ,
h o w e v e r ,
she
s u e d
V i c t o r y l a n d
and
M u l t i m e d i a .
On
A u g u s t
10,
2 0 0 7 ,
K n o w l e s
v o l u n t a r i l y
12
1080466
d i s m i s s e d
M u l t i m e d i a
f r o m
t h e
c a s e .
L a t e r ,
she
f i l e d
a
m o t i o n
f o r
a
p a r t i a l summary j u d g m e n t
on
h e r
c l a i m
a g a i n s t
V i c t o r y l a n d .
On
J u n e
16,
2008,
t h e
t r i a l
c o u r t
e n t e r e d
a
p a r t i a l summary j u d g m e n t i n f a v o r
o f K n o w l e s on
t h e
i s s u e
o f
l i a b i l i t y .
I n
so
d o i n g ,
i t c o n c l u d e d
(1)
t h a t
t h e r e
was
a
c o n t r a c t b e t w e e n K n o w l e s and
V i c t o r y l a n d , t h e t e r m s o f w h i c h
c o n s i s t e d
s o l e l y o f
t h e
s h e r i f f ' s
r e g u l a t i o n s ,
and
(2)
t h a t
she
had
won
a j a c k p o t
o f
a t
l e a s t 40,000,000 c r e d i t s .
The
t r i a l
c o u r t c o n c l u d e d t h a t
t r i a b l e f a c t u a l i s s u e s r e m a i n e d
as
t o
damages,
i n c l u d i n g
d i s p u t e s
as
t o
t h e
amount
o f
money
K n o w l e s had b e t p e r c r e d i t and
t h e
" t o t a l amount she
[had]
won
i n
e x c e s s o f 40,000,000 c r e d i t s . "
A f t e r
a
j u r y
was
e m p a n e l e d
t o
t r y
t h e
c a s e ,
K n o w l e s
o r a l l y moved t h e
t r i a l
c o u r t
f o r
a summary j u d g m e n t
on
t h e
i s s u e
o f damages.
I n
so
d o i n g ,
she
l i m i t e d h e r
c l a i m
t o
4 0 , 00 0 , 00 0 c r e d i t s a t
a
r a t e
o f
25^
p e r
c r e d i t .
She
a l s o
moved t o amend h e r c o m p l a i n t t o s e e k no more t h a n $ 1 0 , 0 0 0 , 0 0 0 .
I n an amended o r d e r ,
t h e
t r i a l c o u r t g r a n t e d t h e s e m o t i o n s
and
e n t e r e d
a
summary
j u d g m e n t
f o r
K n o w l e s ,
a w a r d i n g
h e r
$ 1 0 , 0 0 0 , 0 0 0 .
13
1080466
The
t r i a l
c o u r t s u b s e q u e n t l y d e n i e d V i c t o r y l a n d ' s
m o t i o n
t o
a l t e r ,
amend,
o r
v a c a t e
t h e
j u d g m e n t ,
and
V i c t o r y l a n d
a p p e a l e d .
On
a p p e a l ,
V i c t o r y l a n d
c o n t e n d s ,
among
o t h e r
t h i n g s ,
(1)
t h a t
t h e
t r i a l
c o u r t
m i s a p p l i e d
o r d i n a r y
p r i n c i p l e s
o f g a m b l i n g - c o n t r a c t l a w
and
(2)
t h a t K n o w l e s
has
n o t
met
h e r
b u r d e n
o f
p r o d u c t i o n
t o
show
t h a t
a
c o n t r a c t
e x i s t e d
f o r t h e payment o f $ 1 0 , 0 0 0 , 0 0 0 .
I I .
D i s c u s s i o n
T h i s
c a s e
p r e s e n t s
two
d i s p o s i t i v e
i s s u e s .
The
f i r s t
i s s u e
i s
a
l e g a l
one,
n a m e l y ,
w h e t h e r
c o n t r a c t s
b e t w e e n
V i c t o r y l a n d
and
i t s
p a t r o n s
i n v o l v i n g
t h e
o p e r a t i o n
o f
e l e c t r o n i c - b i n g o m a c h i n e s c o n s i s t s o l e l y o f t h e p r o v i s i o n s
s e t
f o r t h i n t h e s h e r i f f ' s r e g u l a t i o n s .
The
i s s u e m i g h t o t h e r w i s e
be
s t a t e d
as w h e t h e r
t h e
t e r m s
o f
t h e
g a m b l i n g
c o n t r a c t
a t
i s s u e i n t h i s c a s e n e c e s s a r i l y i n c l u d e t h e r u l e s o f t h e w a g e r .
The
s e c o n d
i s s u e
i s a f a c t u a l
one
i n v o l v i n g w h e t h e r K n o w l e s
has
met
h e r b u r d e n o f p r o d u c t i o n
t o show t h a t she
i s
e n t i t l e d
t o a summary j u d g m e n t on h e r
c l a i m t h a t
she
won,
a t t h e
v e r y
l e a s t ,
a $10,000,000
p r i z e .
A.
R u l e s o f t h e Wager
The
t r i a l
c o u r t
s t a t e d :
14
1080466
" [ V i c t o r y l a n d ] h a s a r g u e d t h a t t h e c o n t r a c t , i f a n y ,
b e t w e e n i t and
[ K n o w l e s ] , i s a 'gaming
c o n t r a c t '
t h a t i s c o m p r i s e d o f t e r m s and c o n d i t i o n s
c o n t a i n e d
on t h e b i n g o m a c h i n e , w i t h i n t h e b i n g o m a c h i n e and
p o s t e d a t i t s b i n g o
f a c i l i t y .
W h i l e t h e c o u r t
f i n d s
l e g a l a u t h o r i t y t o s u p p o r t K n o w l e s ' s c o n t e n t i o n
t h a t
t h e
[ t h e
s h e r i f f ' s
r e g u l a t i o n s ]
s u p p o r t
t h e
f o r m a t i o n
and e x i s t e n c e
o f a c o n t r a c t
b e t w e e n h e r
and
[ V i c t o r y l a n d ] ,
t h e
c o u r t
f i n d s
no
l e g a l
a u t h o r i t y
f r o m
A l a b a m a
f o r
[ V i c t o r y l a n d ' s ]
p r o p o s i t i o n
t h a t a 'gaming
c o n t r a c t '
i s f o r m e d b y
t h e
m a c h i n e ,
w i t h
t h e m a c h i n e o r a t t h e m a c h i n e
b e t w e e n t h e p l a y e r and t h e b i n g o
o p e r a t o r . "
( E m p h a s i s added.)
We a g r e e w i t h t h e s e o b s e r v a t i o n s
i n one r e s p e c t :
A l a b a m a
c o u r t s h a v e h a d few o p p o r t u n i t i e s t o a d d r e s s an i s s u e s u c h as
t h e
one
h e r e
p r e s e n t e d .
T h i s
i s s o ,
b e c a u s e
o f t h e
c o n s t i t u t i o n a l
and s t a t u t o r y i m p e d i m e n t s i n A l a b a m a t o t h e
e n f o r c e m e n t o f g a m b l i n g c o n t r a c t s .
See A l a . C o n s t . 1 9 0 1 , § 65
( p r o h i b i t i n g t h e l e g i s l a t u r e f r o m " a u t h o r i z [ i n g ]
l o t t e r i e s o r
g i f t
e n t e r p r i s e s f o r any p u r p o s e s " ) ; A l a .
Code 1975, § 8-1-
1 5 0 ( a )
( " A l l
c o n t r a c t s
f o u n d e d
i n w h o l e
o r i n p a r t
on a
g a m b l i n g c o n s i d e r a t i o n a r e v o i d . " ) .
B e c a u s e t h e p a r t i e s a g r e e
t h a t
Amendment
No.
744
removes
i m p e d i m e n t s
t o
t h e
e n f o r c e a b i l i t y
o f t h i s
c o n t r a c t ,
1 we a r e p r e s e n t e d
w i t h t h e
1We
e x p r e s s no o p i n i o n as t o w h e t h e r Amendment No. 744
a c t u a l l y does a u t h o r i z e t h e t y p e o f a c t i v i t y h e r e
i n v o l v e d .
T h a t i s s u e i s n o t p r e s e n t e d i n t h i s
c a s e .
15
1080466
o p p o r t u n i t y t o j o i n
o t h e r
s t a t e s i n a d d r e s s i n g
t h e r o l e o f
r u l e s o f t h e wager i n t h e f o r m a t i o n o f a g a m b l i n g
c o n t r a c t .
A g a m b l i n g c o n t r a c t h a s b e e n d e f i n e d a s :
"A c o n t r a c t b y w h i c h two o r more p a r t i e s a g r e e
t h a t
a c e r t a i n sum o f money o r o t h e r
t h i n g s h a l l be p a i d
o r d e l i v e r e d t o one o f them o r t h a t t h e y
s h a l l
g a i n
o r l o s e on t h e h a p p e n i n g o f an u n c e r t a i n e v e n t
where
t h e p a r t i e s have no
i n t e r e s t
i n t h e e v e n t
e x c e p t
t h a t
a r i s i n g
f r o m t h e p o s s i b i l i t y
o f s u c h
g a i n o r l o s s . "
B l a c k ' s Law D i c t i o n a r y 1579 ( 6 t h
e d . 1990) ( e m p h a s i s
added)
( h e r e i n a f t e r
" B l a c k ' s " ) .
I t i s w i d e l y r e c o g n i z e d
t h a t t h e f o r m a t i o n o f a g a m b l i n g
c o n t r a c t
r e q u i r e s a l l
t h e f o r m a l i t i e s o f c o n t r a c t
f o r m a t i o n
g e n e r a l l y ,
i n c l u d i n g
"'"an
o f f e r
and
an
a c c e p t a n c e ,
c o n s i d e r a t i o n , and m u t u a l
a s s e n t
t o t e r m s
e s s e n t i a l t o t h e
f o r m a t i o n
o f a c o n t r a c t .
"
' "
A v i s R e n t A C a r S y s . , I n c .
v .
H e i l m a n , 876 So. 2d 1 1 1 1 , 1118 ( A l a .
2003)
( q u o t i n g Ex p a r t e
G r a n t ,
711 So. 2d 4
64
, 465
( A l a .
1
997
) ,
q u o t i n g
i n t u r n
S t r e n g t h v. A l a b a m a Dep't o f F i n . , D i v .
o f R i s k Mgmt., 622 So.
2d 1283, 1289 ( A l a .
1 9 9 3 ) ( e m p h a s i s a d d e d ) ) .
See A n t h o n y C a b o t
& R o b e r t Hannum, A d v a n t a g e
P l a y and C o m m e r c i a l
C a s i n o s ,
74
M i s s . L . J . 681, 722 ( 2 0 0 5 ) ( h e r e i n a f t e r "Gaming Law") ("Because
g a m b l i n g i s a c o n t r a c t , t h e g e n e r a l
e l e m e n t s o f a
c o n t r a c t
16
1080466
must
e x i s t
b e f o r e
t h e r e
i s
a
b i n d i n g
a g r e e m e n t . " ) ;
G r i g g s
S m i t h & J a s o n N a b o r s , B e a t i n g t h e House, 40
T r i a l 42,
42
(June
2004)
( " J a c k p o t
d i s p u t e s
i n v o l v e
c o n t r a c t
l a w .
G a m b l i n g
n e c e s s a r i l y i n v o l v e s a c o n t r a c t u a l a g r e e m e n t , w h i c h
i n c l u d e s
o f f e r , a c c e p t a n c e , and
c o n s i d e r a t i o n . " ) .
To
be
s u r e ,
t h e
l a w
i n A l a b a m a
and
e l s e w h e r e
i s
t h a t
" ' t h e
l a w
e n t e r s
i n t o
and
d e f i n e s
t h e
o b l i g a t i o n o f
e v e r y
c o n t r a c t '
and
t h a t
' [ a ] l l
men
a r e
c h a r g e d
as
[a] m a t t e r
o f
p u b l i c p o l i c y w i t h a k n o w l e d g e o f t h e l a w p e r t a i n i n g t o
t h e i r
t r a n s a c t i o n s . ' "
B a r b e r P u r e M i l k Co.
o f M o n t g o m e r y , I n c .
v.
A l a b a m a S t a t e M i l k C o n t r o l Bd.,
275
A l a . 489,
494,
156
So.
2d
351,
355
(1963)
( q u o t i n g B i r m i n g h a m B a r A s s ' n v.
P h i l l i p s
&
M a r s h , 239 A l a . 650,
656,
196
So.
725,
731
( 1 9 4 0 ) ) .
O t h e r w i s e
s t a t e d ,
" ' e v e r y c o n t r a c t
i s made w i t h
r e f e r e n c e
t o
e x i s t i n g
l a w
and
e v e r y
l a w
a f f e c t i n g t h e
c o n t r a c t
i s r e a d
i n t o
and
becomes a p a r t o f t h e c o n t r a c t when made.'"
I d .
( q u o t i n g B u s h
v. G r e e r , 235 A l a . 56,
58,
177
So.
341,
341,
( 1 9 3 7 ) ) .
I n d e e d ,
" t h e
l a w
can
d i c t a t e m a n d a t o r y t e r m s o f a c o n t r a c t b e t w e e n a
c a s i n o
and
a p a t r o n ,
s u c h as
r e q u i r i n g t h a t
t h e
c a s i n o
must
pay
o u t
a minimum a v e r a g e
r e t u r n
on w a g e r s
...
o r a c t u a l l y
d i c t a t i n g
t h e
e x a c t
t e r m s
o f
t h e
c o n t r a c t
by
s t a t u t o r i l y
17
1080466
s e t t i n g t h e r u l e s on how t h e games must be p l a y e d . "
Gaming
Law,
74 M i s s . L . J .
a t 726 ( e m p h a s i s a d d e d ) .
However, any c o n t r a c t must e x p r e s s a l l t e r m s e s s e n t i a l t o
t h e t r a n s a c t i o n w i t h d e f i n i t e n e s s s u f f i c i e n t t o e n a b l e a c o u r t
t o e n f o r c e t h e p a r t i e s ' a g r e e m e n t .
W h i t e Sands G r o u p , L.L.C.
v. PRS I I ,
L L C , 998 So. 2d 1042
, 1051
( A l a . 2008 ).
" ' [ A ]
c o n t r a c t
t h a t
" ' l e a v [ e s ]
m a t e r i a l
p o r t i o n s
open f o r f u t u r e
a g r e e m e n t i s n u g a t o r y and v o i d f o r i n d e f i n i t e n e s s . ' " ' " I d .
( q u o t i n g M i l l e r v . R o s e , 138 N.C. App. 582, 587-88, 532 S.E.2d
228, 232 ( 2 0 0 0 ) ,
q u o t i n g i n t u r n MCB L t d . v. McGowan, 86 N.C.
App.
607, 609, 359 S.E.2d 50, 51
( 1 9 8 7 ) ) .
"'Even t h o u g h a
m a n i f e s t a t i o n o f i n t e n t i o n i s i n t e n d e d t o be u n d e r s t o o d as an
o f f e r , i t
c a n n o t be a c c e p t e d so as t o f o r m a c o n t r a c t
u n l e s s
t h e
t e r m s o f t h e c o n t r a c t
a r e r e a s o n a b l y
c e r t a i n . ' "
I d .
( q u o t i n g
17A
Am.
J u r . 2d
C o n t r a c t s
§
183
(2004
) ) .
I n d e f i n i t e n e s s
may
" r e n d e r [ ]
a
c o n t r a c t
v o i d
f o r l a c k o f
m u t u a l i t y " o f o b l i g a t i o n . B e r a h a v . B a x t e r H e a l t h C a r e C o r p . ,
956 F.2d 1436, 1440 ( 7 t h
C i r . 1 9 9 2 ) .
I t i s
V i c t o r y l a n d ' s p o s i t i o n t h a t , i f ,
as t h e t r i a l
c o u r t
h e l d ,
t h e s h e r i f f ' s
r e g u l a t i o n s
" c o n s t i t u t e t h e e x c l u s i v e
t e r m s o f [ K n o w l e s ' s a l l e g e d ]
c o n t r a c t , " t h e n t h e r e w o u l d be
18
1080466
"no
c o n t r a c t
t o be b r e a c h e d . "
V i c t o r y l a n d ' s r e p l y b r i e f ,
a t
11.
T h i s
i s s o ,
a c c o r d i n g
t o
V i c t o r y l a n d , b e c a u s e
s u c h
a
" c o n t r a c t "
w o u l d
l a c k
e s s e n t i a l t e r m s ,
s u c h
as
" t h e
b e t
amount, a w i n n i n g p a t t e r n d e s c r i p t i o n , o r a p r i z e amount (even
t h e
c r e d i t m e t e r
[on] w h i c h
[ K n o w l e s ]
r e l i e s
i s f o u n d on
t h e
m a c h i n e ' s v i d e o
s c r e e n s ) . "
V i c t o r y l a n d ' s
b r i e f ,
a t
34.
I n
o t h e r
w o r d s ,
i t a r g u e s ,
t h e
r u l e s
o f
t h e wager p r o v i d e
t h e
t e r m s
n e c e s s a r y
t o
f o r m
an
e n f o r c e a b l e
c o n t r a c t
b e t w e e n
V i c t o r y l a n d and
i t s p a t r o n s .
We
a g r e e w i t h
t h i s p o s i t i o n .
The
s h e r i f f ' s r e g u l a t i o n s a r e f a r t o o g e n e r i c
t o
p r o v i d e
t h e b a s i s f o r any
e n f o r c e a b l e
c o n t r a c t u a l r e l a t i o n s h i p . E v e n
a c u r s o r y
r e a d i n g
o f t h e
e x c e r p t s
s e t
o u t
i n P a r t
I o f
t h i s
o p i n i o n r e v e a l s t h a t t h e
s h e r i f f ' s r e g u l a t i o n s d e a l p r i m a r i l y
w i t h
s u c h
g e n e r a l
t o p i c s
as
d e f i n i t i o n s ,
l i c e n s i n g
and
a p p l i c a t i o n p r o c e d u r e s , a c c o u n t i n g p r a c t i c e s , and e n f o r c e m e n t .
To
t h e
e x t e n t
t h e y
a r e
more
s p e c i f i c a l l y
t a i l o r e d
t o
i n d i v i d u a l
t r a n s a c t i o n s , t h e y e x p r e s s l y c o n t e m p l a t e t h a t
t h e
p l a y e r s ' c o n t r a c t s
w i l l
i n c o r p o r a t e t h e c a s i n o ' s
r u l e s o f
t h e
w a g e r .
F o r
e x a m p l e ,
§
1
o f
t h e
s h e r i f f ' s
r e g u l a t i o n s ,
w h i c h
d e f i n e s
c e r t a i n f e a t u r e s
t h a t must be
i n c o r p o r a t e d
i n t o
t h e
19
1080466
b i n g o game, s t a t e s t h a t games must be "won by t h e f i r s t
p e r s o n
c o v e r i n g
a p r e v i o u s l y
d e s i g n a t e d
a r r a n g e m e n t o f numbers o r
d e s i g n a t i o n s
on
s u c h
[ b i n g o ]
c a r d s . "
One
s e a r c h e s
t h e
s h e r i f f ' s
r e g u l a t i o n s
i n
v a i n
f o r
s u c h
" d e s i g n a t e d
a r r a n g e m e n t [ s ] o f n u m b e r s . "
Thus, t h o s e a r r a n g e m e n t s must be
ones
d e s i g n a t e d
b y t h e c a s i n o
as p a r t o f t h e r u l e s o f t h e
w a g e r .
S i m i l a r l y , § 1 r e q u i r e s p r i z e s t o be a w a r d e d
a c c o r d i n g
t o a " p r e o r d a i n e d
w i n n i n g
p a t t e r n . "
B e c a u s e t h e
s h e r i f f ' s
r e g u l a t i o n s
do
n o t
p r o v i d e
any
w i n n i n g
p a t t e r n s ,
t h e y
n e c e s s a r i l y
c o n t e m p l a t e
t h a t
s u c h
p a t t e r n s
must
a l s o
be
p r o v i d e d b y t h e c a s i n o as a p a r t o f t h e r u l e s o f t h e w a g e r .
S e c t i o n 1 f u r t h e r p r o v i d e s
t h a t t h e c a s i n o may, b u t n e e d n o t ,
p r o v i d e
f o r " i n t e r i m o r c o n s o l a t i o n
p r i z e s " i n a d d i t i o n t o
j a c k p o t
p r i z e s .
A c c o r d i n g
t o K n o w l e s ' s
t h e o r y
o f t h e c a s e , w h e n e v e r a
p a t r o n
" i n s e r t [ s ] t h e Q - c a r d ; a c c e p t [ s ] o r s e l e c t [ s ] a b i n g o
c a r d ;
p l a c e [ s ] a b e t o f a p a r t i c u l a r d e n o m i n a t i o n ; and t h e n
h i t [ s ] t h e p l a y b u t t o n [ ; ]
' B i n g o ! , ' t h e c o n t r a c t i s f o r m e d . "
K n o w l e s ' s b r i e f , a t 39.
P a r a d o x i c a l l y , K n o w l e s c o n c e d e s
t h a t
she
t o o k
t h e s e
s t e p s
by
f o l l o w i n g
t h e
" s t r a i g h t - f o r w a r d
i n s t r u c t i o n s on t h e [ v i d e o
s c r e e n ] , " and t h a t
V i c t o r y l a n d ' s
20
1080466
" ' o f f e r '
...
was
c o m p r i s e d
o f
t h e
r u l e s p r o m u l g a t e d
by
t h e
s h e r i f f
o f Macon C o u n t y and
t h e
r u l e s V i c t o r y l a n d p o s t e d
on
t h e
f a c e
o f
t h e
...
m a c h i n e . "
K n o w l e s ' s
b r i e f ,
a t
38-39
( e m p h a s i s a d d e d ) .
These i n s t r u c t i o n s , o f c o u r s e ,
a r e
n o t
i n
t h e
s h e r i f f ' s
r e g u l a t i o n s .
Thus, K n o w l e s
a d m i t s
t h a t
h e r
c o n t r a c t was
b a s e d -- a t l e a s t i n p a r t -- on t h e r u l e s o f
t h e
w a g e r .
I n d e e d , t h e
t r i a l
c o u r t ' s j u d g m e n t i s b a s e d on
t h e
f a c t
t h a t
t h e a p p e a r a n c e on K n o w l e s ' s v i d e o
s c r e e n
o f
one
o f
t h e
" w i n n i n g p a t t e r n s " c o i n c i d e d w i t h t h e a d v a n c i n g c r e d i t s on
t h e
c r e d i t m e t e r .
S p e c i f i c a l l y ,
t h e
p a r t i a l summary j u d g m e n t
as
t o
l i a b i l i t y
s t a t e d , i n p e r t i n e n t
p a r t :
" K n o w l e s c o n t e n d s
she
p l a c e d
a
[25^]
b e t
p e r
l i n e
and
h i t t h e p l a y b u t t o n .
...
A f t e r h i t t i n g
t h e
p l a y
b u t t o n ,
t h e b i n g o m a c h i n e d i s p l a y e d a b i n g o c a r d
on
a v i d e o
s c r e e n ,
t h a t
i s b u i l t
i n t o t h e
e l e c t r o n i c
d e v i c e .
A c c o r d i n g
t o
K n o w l e s ,
t h e
b i n g o
c a r d
e x h i b i t e d a ' w i n n i n g p l a y . '
K n o w l e s ' s a f f i d a v i t
i s
s u p p o r t e d by t h e t e s t i m o n y
o f James Graham, a g a m i n g
manager f o r [ V i c t o r y l a n d ] . ... Graham a r r i v e d a t
t h e
e l e c t r o n i c m a c h i n e p l a y e d
by
K n o w l e s
and
v i e w e d
a
b i n g o
c a r d
t h a t
e x h i b i t e d a
'snake e y e s '
p a t t e r n .
When q u e s t i o n e d
by c o u n s e l
f o r K n o w l e s as t o w h e t h e r
t h i s
p a t t e r n
was
a
w i n n i n g
p a t t e r n
o r
n o t ,
he
s t a t e d :
"Q.
'Was
i t a w i n n i n g
p a t t e r n ? '
"A.
'Snakes e y e s i s a w i n n i n g
p a t t e r n . '
21
1080466
"(Graham Depo. V o l .
I I , p.
217.)
Graham
o b s e r v e d
t h a t
t h e
c r e d i t
m e t e r
on
t h e
m a c h i n e
p l a y e d
by
K n o w l e s was
a t '...
r o u g h l y 40,000,000 c r e d i t s ' when
he
l a s t
saw
i t .
(Graham Depo. V o l .
I I , p.
217.)
A c c o r d i n g
t o
K n o w l e s ,
t h e
c r e d i t
m e t e r
was
a t
a p p r o x i m a t e l y 41,800,000 when she
l a s t o b s e r v e d i t .
"...
The
u n d i s p u t e d
e v i d e n c e
e s t a b l i s h e s
t h a t
K n o w l e s had
i n s e r t e d money i n t o t h e m a c h i n e p r i o r
t o
t h e e v e n t she
[and]
Graham ...
o b s e r v e d .
A
w i n n i n g
b i n g o c a r d t h e n a p p e a r e d on
t h e m a c h i n e .
T h i s
c a r d
d i s p l a y e d
a 'snake e y e s
p a t t e r n . '
" K n o w l e s has made a p r i m a f a c i e s h o w i n g t h a t
she
i s
e n t i t l e d
t o
r e l i e f
on
h e r
c o n t r a c t
c l a i m .
[ V i c t o r y l a n d ]
has
f a i l e d
t o
p r o d u c e
s u b s t a n t i a l
e v i d e n c e t h a t d i s p u t e s
h e r
c o n t r a c t
c l a i m , w i t h
t h e
e x c e p t i o n
o f
t h e amount t o w h i c h
she
i s
e n t i t l e d .
...
T h e r e i s no g e n u i n e i s s u e o f m a t e r i a l
f a c t
t h a t
she
has
s u f f e r e d damages when she
was
n o t
p a i d
h e r
j a c k p o t
on May
2, 2006.
T h e r e i s d i s p u t e d
e v i d e n c e
as
t o
e x a c t l y
how
much
she
won
w h i c h
p r e c l u d e s
g r a n t i n g summary j u d g m e n t i n a s p e c i f i c amount."
( E m p h a s i s added.)
I n t h i s r e a s o n i n g ,
t h e
t r i a l
c o u r t
c l e a r l y e r r e d .
T h e r e
i s
n o t h i n g
i n t h e
s h e r i f f ' s
r e g u l a t i o n s
a b o u t
" s n a k e - e y e s . "
T h a t t e r m ,
l i k e
o t h e r
n e c e s s a r y t e r m s
o f
t h e
c o n t r a c t ,
a r e
s u p p l i e d ,
n o t
by
t h e
s h e r i f f ' s
r e g u l a t i o n s , b u t
by
t h e
r u l e s
o f
t h e w a g e r .
The
v e r y
e s s e n c e o f
t h e g a m b l i n g c o n t r a c t
i n
t h i s
c a s e must
be
a
m u t u a l
u n d e r s t a n d i n g
as
t o
(1)
what
22
1080466
" c e r t a i n sum o f money" w i l l "be p a i d " t o one o f t h e p a r t i e s ,
and
(2) what " u n c e r t a i n e v e n t " t r i g g e r s t h e p a y o f f .
B l a c k ' s ,
a t 1579. S i m p l y s t a t e d , w i t h o u t t h e r u l e s o f t h e
w a g e r ,
t h e r e
w o u l d be no c o n t r a c t a n d , t h e r e f o r e , no b a s i s f o r t h e j u d g m e n t
a w a r d e d i n t h i s
c a s e .
Not
s u r p r i s i n g l y , t h e g e n e r a l
r u l e i s t h a t
" [ c ] a s i n o -
s t y l e w a g e r i n g i s
e s s e n t i a l l y an a d h e s i o n c o n t r a c t b e t w e e n t h e
c a s i n o
a n d i t s p a t r o n s , "
t h a t
i s , " t h e c a s i n o
d e f i n e s t h e
t e r m s o f t h e c o n t r a c t
( t h e r u l e s o f t h e wager) and
a l l o w s
p a t r o n s
t o p l a y
t h e game
a s - i s ,
w i t h
no
p o s s i b i l i t y
o f
c h a n g i n g
t h e r u l e s . "
Gaming Law, 74
M i s s .
L . J . a t 722
( e m p h a s i s
a d d e d ) .
See, e . g . , E a s h v.
I m p e r i a l
P a l a c e o f
M i s s i s s i p p i , L L C , 4 So. 3d 1042, 1048 ( M i s s . 2009)
( r u l e s o f
t h e
wager p o s t e d on a
s l o t
m a c h i n e were t h e t e r m s o f t h e
c o n t r a c t , w h i c h r e s t r i c t e d a p a t r o n ' s p r i z e t o t h e
p o s t e d game
l i m i t o f $8,000,
" d e s p i t e
[a] r e g r e t t a b l e p r o g r a m m i n g
e r r o r
t h a t l e d [ p a t r o n ]
t o b e l i e v e
t h a t she h a d won $ 1 , 0 0 0 , 0 0 0 " ) ;
S e n g e l v . IGT, 116 Nev. 5 6 5 , 5 7 1 - 7 2 , 2 P.3d 258, 262 (2000)
( p a t t e r n o f s y m b o l s on t h e "pay t a b l e [ o f
a s l o t m a c h i n e ] was
an e x p r e s s t e r m o f t h e w a g e r i n g c o n t r a c t e n t e r e d
i n t o b e t w e e n
t h e
p a r t i e s " ) .
23
1080466
"The
n a t u r e
o f g a m i n g
n e c e s s i t a t e s
s u c h
a d h e s i o n
c o n t r a c t s .
C a s i n o s a r e i n t h e b u s i n e s s
o f m a k i n g
money.
T h e r e f o r e ,
t h e c a s i n o
t y p i c a l l y o n l y
e n t e r s
i n t o
c o n t r a c t s
t h a t
h a v e a
s t a t i s t i c a l
a d v a n t a g e
f a v o r i n g t h e c a s i n o .
A l t e r i n g t h e t e r m s o f
t h i s
c o n t r a c t
c o u l d
c h a n g e t h e s t a t i s t i c a l
a d v a n t a g e ,
s u c h , as by c h a n g i n g t h e p r o b a b i l i t y o f w i n n i n g o r
l o s i n g t h e w a g e r . "
Gaming Law, 74 M i s s . L . J .
a t
722.
To a l l o w c a s i n o p a t r o n s t o i g n o r e t h e r u l e s o f t h e w a g e r ,
as K n o w l e s p r o p o s e s we do, w o u l d e f f e c t i v e l y a l l o w t h e p a t r o n s
t o p l a y t h e c a s i n o ' s
m a c h i n e s a c c o r d i n g t o t h e i r own a d h o c
r u l e s .
S u c h a r e s u l t w o u l d d e f y common s e n s e a n d w o u l d
t u r n
t h e
r e l a t i o n s h i p b e t w e e n t h e c a s i n o
a n d t h e p a t r o n
on i t s
h e a d .
Thus, we h o l d
t h a t t h e t e r m s t h a t were n e c e s s a r y a n d
i n d i s p e n s a b l e
t o t h e f o r m a t i o n
o f an e n f o r c e a b l e
c o n t r a c t
b e t w e e n V i c t o r y l a n d a n d K n o w l e s were t h e r u l e s o f t h e wager
i n c o r p o r a t e d
i n t o t h e h e l p
s c r e e n s a n d p a y t a b l e s o f m a c h i n e
no.
Y2H01-11462.
P u z z l i n g l y ,
K n o w l e s ,
an
e x p e r i e n c e d
g a m b l e r ,
f u r t h e r
o b j e c t s t o t h e a p p l i c a t i o n o f t h e r u l e s o f t h e wager on t h e
g r o u n d t h a t t h e y were unknown t o h e r , a n d t h a t t h e y c o u l d be
a c c e s s e d o n l y b y p r e s s i n g t h e "HELP PAYTABLE" i c o n .
I n t h i s
c o n n e c t i o n ,
she
s a y s
t h a t
t h e " w a g e r i n g
c o n t r a c t
o f f e r
[ V i c t o r y l a n d ] made t o Ms. K n o w l e s was t h a t
a p p e a r i n g
on t h e
24
1080466
f a c e o f t h e m a c h i n e , "
t h a t i s ,
t o t h e e x c l u s i o n o f e v e r y t h i n g
i n c l u d e d i n t h e " h e l p "
s c r e e n s a n d t h e " p a y t a b l e "
s c r e e n s .
K n o w l e s ' s
b r i e f ,
a t
11
( e m p h a s i s
a d d e d ) .
F o r
t h a t
p r o p o s i t i o n ,
she r e l i e s on S o u t h e r n
E n e r g y Homes, I n c .
v .
H e n n i s , 776 So. 2d 105 ( A l a .
2 0 0 0 ) .
H e n n i s ,
h o w e v e r , i s
i n a p p o s i t e .
The
d i s p u t e
i n H e n n i s
b e g a n
when
W i l l i a m
D.
H e n n i s
p u r c h a s e d a m a n u f a c t u r e d
home
f r o m
J a c k L e e M o b i l e Homes
("Jack L e e " ) .
776 So. 2d a t 106. The home was m a n u f a c t u r e d
by S o u t h e r n E n e r g y Homes, I n c . ( " S o u t h e r n E n e r g y " ) .
H e n n i s ' s
o n l y c o n t a c t s w i t h S o u t h e r n E n e r g y were t h e home
i t s e l f a n d
h i s
r e c e i p t
a t t h e t i m e o f p u r c h a s e o f a "'[Homeowner's]
M a n u a l f r o m S o u t h e r n [ E n e r g y ] . ' " I d . The m a n u a l c o n t a i n e d an
a r b i t r a t i o n
c l a u s e a n d an e x p r e s s w a r r a n t y .
F o l l o w i n g t h e
p u r c h a s e , H e n n i s "'became d i s s a t i s f i e d w i t h t h e
home a n d f i l e d
s u i t
[ a g a i n s t S o u t h e r n E n e r g y ] f o r , among o t h e r t h i n g s , b r e a c h
o f
w a r r a n t y
c o n t a i n i n g
t h e a r b i t r a t i o n
a g r e e m e n t . ' "
I d .
( q u o t i n g S o u t h e r n E n e r g y ' s
b r i e f , a t x i i i ) .
H e n n i s d i d n o t
s i g n
t h e p a g e s
o f t h e homeowner's
m a n u a l
c o n t a i n i n g t h e
a r b i t r a t i o n c l a u s e , a n d t h e r e was no e v i d e n c e i n d i c a t i n g
t h a t
H e n n i s h a d e v e r
s o u g h t
r e p a i r s
u n d e r t h e w a r r a n t y .
Thus,
25
1080466
a s i d e f r o m t h e b r e a c h - o f - w a r r a n t y c l a i m
i t s e l f ,
t h e r e was no
e v i d e n c e
i n d i c a t i n g
t h a t
H e n n i s
h a d e v e r
" a s s e n t e d t o t h e
t e r m s i n t h e Homeowner's M a n u a l ,
i n c l u d i n g t h e w a r r a n t y and
t h e a r b i t r a t i o n
p r o v i s i o n s . "
776 So. 2d a t 109.
T h i s
C o u r t
a f f i r m e d
t h e
t r i a l
c o u r t ' s
o r d e r
d e n y i n g
S o u t h e r n E n e r g y ' s m o t i o n t o c o m p e l a r b i t r a t i o n .
I t h e l d t h a t
" t h e m a n u f a c t u r e r ' s
u n i l a t e r a l
e n c l o s u r e o f an
a r b i t r a t i o n
p r o v i s i o n
i n a homeowner's
m a n u a l
i s --
w i t h o u t
more
-¬
i n s u f f i c i e n t
as a
m a t t e r
o f l a w t o show
t h a t
t h e
b u y e r
a s s e n t e d t o a l l
t h e c o n t e n t s t h e r e i n . "
776 So. 2d a t 108-09.
A c t u a l l y ,
K n o w l e s s h o u l d
f i n d
l i t t l e
s o l a c e i n H e n n i s .
A l t h o u g h
we
r e f u s e d t o
o v e r t u r n t h e
t r i a l
c o u r t ' s
o r d e r
d e n y i n g a r b i t r a t i o n , we r e g a r d e d t h e " p r o v i s i o n s c o n t a i n e d i n
s u c h
a homeowner's m a n u a l
[ a s ] i m m a t e r i a l , ' e x c e p t
i n t h e
u t t e r l y
c o l l a t e r a l
s e n s e
t h a t
i f t h e p l a i n t i f f s
h a d
n e v e r
p u r c h a s e d
t h e i r
m o b i l e
homes,'
...
t h e y
w o u l d
n o t
h a v e
r e c e i v e d t h e homeowner's m a n u a l . "
776 So. 2d a t 109 ( q u o t i n g
Ex
p a r t e
I s b e l l ,
708 So. 2d 5 7 1 , 578
( A l a . 1 9 9 7 ) ( e m p h a s i s
a d d e d ) ) .
T h e r e
i s a d i s t i n c t
d i f f e r e n c e b e t w e e n
p r o v i s i o n s
c o l l a t e r a l t o a c o n s u m e r c o n t r a c t f o r
t h e p u r c h a s e o f a m o b i l e
home, as i n H e n n i s , and t h e g a m b l i n g c o n t r a c t i n v o l v e d i n t h i s
26
1080466
c a s e .
I n H e n n i s , t h e e s s e n t i a l t e r m s o f t h e p u r c h a s e c o n t r a c t
-- a b o u t w h i c h t h e r e was no d i s p u t e -- were t h e s u b j e c t m a t t e r
( t h e m a n u f a c t u r e d home), t h e p r i c e , t h e t i m e o f d e l i v e r y , t h e
p l a c e o f d e l i v e r y , e t c .
I n t h i s c a s e , t h e e s s e n t i a l t e r m s
-¬
w h i c h K n o w l e s w o u l d
have
t h i s
C o u r t
r e j e c t
--
i n c l u d e
t h e
amount a t s t a k e and t h e c i r c u m s t a n c e s o f t h e p a y o f f .
P a t r o n s
a t V i c t o r y l a n d b e t on t h e a p p e a r a n c e o f s p e c i f i c p a t t e r n s a n d
t h e
a t t e n d a n t c r e d i t s .
Those
t e r m s
a r e n o t
i n any
s e n s e
" c o l l a t e r a l "
t o K n o w l e s ' s
g a m b l i n g c o n t r a c t -- t h e y a r e t h e
c o n t r a c t .
A l s o , H e n n i s i s u n a v a i l i n g t o K n o w l e s , b e c a u s e i n H e n n i s
we
s a i d :
"We
h a s t e n
t o
p o i n t
o u t
t h a t ,
u n d e r
t h e
r e c e n t
p r e c e d e n t o f t h i s C o u r t , H e n n i s may n o t p u r s u e h i s b r e a c h - o f -
e x p r e s s - w a r r a n t y
c l a i m
a g a i n s t S o u t h e r n E n e r g y .
T h i s i s so
b e c a u s e he c a n n o t r e l y on t h e e x p r e s s w r i t t e n w a r r a n t y and, a t
t h e same t i m e , d i s a v o w
t h e
a r b i t r a t i o n
p r o v i s i o n
c o n t a i n e d
t h e r e i n . "
776 So. 2d a t 109.
I t
i s e l e m e n t a r y t h a t one
c a n n o t a t once r e p u d i a t e
and
e n f o r c e a c o n t r a c t .
D e z s o f i v. J a c o b y , 178 M i s c . 851, 853, 36
N.Y.S.2d 672,
674
(N.Y.
Sup.
1 9 4 2 ) ; O.K.
T r a n s f e r & S t o r a g e
Co. v. N e i l l ,
59 O k l a . 2 9 1 , 159 P. 272, 274
( 1 9 1 6 ) .
See
a l s o
27
1080466
C r e d i t
S a l e s ,
I n c . v. Crimm, 815
So.
2d
540,
546
( A l a .
2001)
( n o t i n g
t h a t
a p a r t y
" c a n n o t p i c k
and
c h o o s e w h i c h
c o n t r a c t
p r o v i s i o n s she w i s h e s t o have b e n e f i t h e r and r e j e c t t h o s e
she
d o e s n o t
w i s h t o h a v e b i n d
h e r ;
i n s t e a d ,
she must a c c e p t
o r
r e j e c t t h e e n t i r e c o n t r a c t " ) .
U l t i m a t e l y , K n o w l e s must c h o o s e
w h e t h e r t o p r o c e e d on h e r
c l a i m w i t h
a c o n t r a c t b a s e d on
t h e
r u l e s o f t h e wager o r t o a b a n d o n h e r b r e a c h - o f - c o n t r a c t
c l a i m
a l t o g e t h e r .
H e n n i s , 776
So.
2d a t 109.
She
c a n n o t
r e p u d i a t e
t h e
v e r y
c o n t r a c t
she
s e e k s
t o
e n f o r c e .
Thus,
t h e
o n l y
r e m a i n i n g q u e s t i o n
i s w h e t h e r she
has
met
h e r b u r d e n t o show
t h a t
t h e
r u l e s
o f
t h e
wager
e n t i t l e
h e r
t o
a
$1 0 ,
00 0 ,
00 0
p r i z e .
B. K n o w l e s ' s B u r d e n o f
P r o d u c t i o n
" ' " ' [ T ] h e manner
i n w h i c h
the
[summary-judgment]
movant's burden of p r o d u c t i o n
i s met
depends upon
w h i c h p a r t y has
the burden of p r o o f ...
a t
t r i a l . ' "
Ex p a r t e G e n e r a l Motors Corp., 769
So.
2d 903,
909
( A l a .
1999)
( q u o t i n g B e r n e r v. C a l d w e l l , 543
So.
2d
686,
691
( A l a .
1989)
(Houston,
J . ,
c o n c u r r i n g
s p e c i a l l y ) ) .
I f ...
"'the movant has
the burden of
p r o o f a t
t r i a l ,
the movant must s u p p o r t h i s motion
w i t h
c r e d i b l e e v i d e n c e , u s i n g
any
of the
m a t e r i a l
s p e c i f i e d
i n
R u l e
5 6 ( c ) ,
[ A l a . ]
R.
C i v .
P.
( " p l e a d i n g s ,
d e p o s i t i o n s ,
a n s w e r s
t o
i n t e r r o g a t o r i e s ,
and
a d m i s s i o n s
on
f i l e ,
t o g e t h e r
w i t h the a f f i d a v i t s " ) . ' "
769
So. 2d a t 909.
"'The
movant's
p r o o f
must
be
such
t h a t
he
would
be
e n t i t l e d t o a d i r e c t e d v e r d i c t [now
r e f e r r e d t o
as
a judgment as a m a t t e r of law,
see R u l e 50, A l a .
R.
28
1080466
C i v .
P.] i f t h i s e v i d e n c e was not c o n t r o v e r t e d a t
t r i a l . ' "
I d . In o t h e r words, "when the movant has
the
burden [of p r o o f a t t r i a l ] ,
i t s
own s u b m i s s i o n s
i n s u p p o r t of the motion must e n t i t l e i t t o judgment
as a m a t t e r o f law."
A l b e e Tomato, I n c . v.
A.B.
Shalom Produce Corp.,
155 F.3d
612,
618
(2d C i r .
1998)
(emphasis added).
See a l s o E q u a l Employment
O p p o r t u n i t y Comm'n v.
Union
I n d e p e n d i e n t e de
l a
A u t o r i d a d de Acueductos y A l c a n t a r i l l a d o s de P u e r t o
R i c o , 279 F.3d 49 ( 1 s t C i r . 2002); R u s h i n g v. Kansas
C i t y Southern Ry. , 185 F.3d
496
(5th C i r . 1999);
F o n t e n o t v. Upjohn
Co.,
780
F.2d
1190
(5th C i r .
1986); C a l d e r o n e v. U n i t e d S t a t e s , 799 F.2d 254 (6th
C i r .
1986).'
"
J o n e s - L o w e
Co.
v.
S o u t h e r n
L a n d
&
E x p l o r a t i o n
Co.,
[Ms.
1 0 7 1 5 7 5 ,
M a r c h
6,
200 9]
So.
3d
,
( A l a . 2009)
( q u o t i n g Denmark v. M e r c a n t i l e
S t o r e s Co.,
844
So. 2d
1189,
1195
( A l a . 2 0 0 2 ) ) .
As
d i s c u s s e d i n t h e p r e v i o u s p a r t o f
t h i s
o p i n i o n ,
t h e
t r i a l
c o u r t b a s e d i t s a w a r d
o f $10,000,000 on t h e f a c t
t h a t
t h e
r o l l - u p o f t h e c r e d i t m e t e r c o i n c i d e d w i t h t h e
a p p e a r a n c e
o f
a
" s n a k e - e y e s "
p a t t e r n
on
t h e
v i d e o
s c r e e n
o f
t h e
e l e c t r o n i c - b i n g o
m a c h i n e K n o w l e s
was
p l a y i n g .
A c c o r d i n g t o
V i c t o r y l a n d ,
h o w e v e r , t h e r e i s a g e n u i n e
i s s u e
o f
m a t e r i a l
f a c t as t o t h e s i g n i f i c a n c e , i f any, o f s u c h a c o i n c i d e n c e .
We
a g r e e .
In
i t s " a n s w e r s
t o
[ K n o w l e s ' s ]
s e c o n d
c o n s o l i d a t e d
i n t e r r o g a t o r i e s , "
M u l t i m e d i a
s t a t e d
t h a t
i t was
t h e
p a i d
29
1080466
m e t e r ,
n o t
t h e
c r e d i t
m e t e r ,
t h a t
d i s p l a y e d
a
p a t r o n ' s
w i n n i n g s .
2
James Graham, a "gaming manager" f o r V i c t o r y l a n d ,
t e s t i f i e d
by
d e p o s i t i o n
t h a t
no
p a t t e r n
on
t h e m a c h i n e
p a i d
40,000,000 c r e d i t s , t h e amount t h a t a l l e g e d l y a p p e a r e d on
t h e
c r e d i t m e t e r o f K n o w l e s ' s m a c h i n e on May
2, 2006.
S i m i l a r l y ,
S t a n l e y
H u b b a r d ,
a
"gaming
d i r e c t o r "
f o r
V i c t o r y l a n d ,
t e s t i f i e d
by
a f f i d a v i t
t h a t
t h e
c r e d i t m e t e r
on
K n o w l e s ' s
m a c h i n e
"was
r o l l i n g
up
f a r i n e x c e s s
o f
t h e
c r e d i t s w h i c h
[ c o u l d ] be won
on t h a t m a c h i n e . "
The
h i g h e s t w i n n i n g
p a t t e r n
i n t h e p a y t a b l e
y i e l d e d no more t h a n 10,020 c r e d i t s .
I n
f a c t ,
t h e
h i g h e s t
number o f
c r e d i t s a p p e a r i n g
on
t h e
f a c e
o f
t h e
m a c h i n e was
10,000.
C h r i s
F o g a r t y ,
a
" f l o o r
s u p e r v i s o r "
f o r
V i c t o r y l a n d ,
t e s t i f i e d
by
a f f i d a v i t
t h a t
t h e b i n g o
c a r d
a p p e a r i n g
on
t h e
v i d e o
s c r e e n
o f K n o w l e s ' s m a c h i n e d i d n o t
d i s p l a y a
" j a c k p o t
p a t t e r n . "
I n d e e d , i t i s u n d i s p u t e d
t h a t t h e p a t t e r n
d i s p l a y e d
was
" s n a k e - e y e s . "
I n t h a t
c o n n e c t i o n ,
Graham s t a t e d
i n h i s
d e p o s i t i o n t h a t t h e p a y o u t f o r a " s n a k e - e y e s " p a t t e r n was
o n l y
two
c r e d i t s .
T h i s t e s t i m o n y
was
s u p p o r t e d by t h e p a t t e r n s
i n
2 T h e s e
a n s w e r s
t o
i n t e r r o g a t o r i e s were
i n t r o d u c e d
by
K n o w l e s ,
h e r s e l f ,
i n
s u p p o r t
o f
h e r
m o t i o n
f o r
a
p a r t i a l
summary j u d g m e n t and a g a i n i n h e r r e n e w e d m o t i o n f o r a
p a r t i a l
summary j u d g m e n t .
30
1080466
t h e p a y t a b l e , w h i c h a t t r i b u t e d o n l y two
c r e d i t s t o
a " s n a k e -
e y e s " p a t t e r n .
T h e r e
was,
i n
o t h e r
w o r d s ,
s u b s t a n t i a l
e v i d e n c e
i n d i c a t i n g
t h a t K n o w l e s ' s p r i z e was
w o r t h o n l y
two
c r e d i t s ,
r e g a r d l e s s o f what t h e c r e d i t m e t e r r e g i s t e r e d . As V i c t o r y l a n d
c o r r e c t l y
s t a t e d :
" T h i s
e v i d e n c e
c r e a t e d
a g e n u i n e
i s s u e
o f
m a t e r i a l f a c t as t o what p r i z e K n o w l e s was
e n t i t l e d t o w i n
-¬
two
c r e d i t s o r 40
m i l l i o n
c r e d i t s . "
V i c t o r y l a n d ' s b r i e f ,
a t
53.
The
b u r d e n
was
upon
K n o w l e s ,
as
t h e
p a r t y
s e e k i n g
a
summary j u d g m e n t on
t h e
c l a i m a s s e r t e d
i n h e r
c o m p l a i n t ,
t o
p r e s e n t
e v i d e n c e
t h a t w o u l d
e n t i t l e
h e r
t o
a j u d g m e n t
as
a
m a t t e r
o f
l a w
" i f t h i s
e v i d e n c e
was
n o t
c o n t r o v e r t e d
a t
t r i a l . "
Denmark, 844
So.
2d a t 1195.
T h i s
she
d i d n o t
do.
I I I .
C o n c l u s i o n
F o r
t h e
r e a s o n s
s t a t e d a b o v e ,
t h e
t r i a l
c o u r t
e r r e d
i n
e n t e r i n g a summary j u d g m e n t f o r K n o w l e s .
C o n s e q u e n t l y ,
t h a t
j u d g m e n t i s r e v e r s e d ,
and
t h e c a u s e i s remanded f o r f u r t h e r
p r o c e e d i n g s .
REVERSED AND
REMANDED.
S t u a r t , S m i t h , P a r k e r ,
and Shaw, J J . , c o n c u r .
31 | November 20, 2009 |
567a2fbd-09e0-4492-9502-412ff34f28c5 | Ex Parte Phillips | 95 So. 2d 77 | N/A | Alabama | Alabama Supreme Court | 95 So. 2d 77 (1957)
Ex parte Patsy Ruth PHILLIPS.
4 Div. 905.
Supreme Court of Alabama.
May 9, 1957.
*78 Robt. E. Coburn, Jr., Montgomery, for Petitioner.
Jackson W. Stokes, Elba, for respondent.
MERRILL, Justice.
Petition for mandamus to review a ruling of the Honorable Eris F. Paul, as Judge of the Circuit Court of Coffee County, in Equity, dated November 21, 1956, which awarded the custody of two minor children to their father, and ordered the sheriff of Montgomery County to take the children into his custody and deliver them to the sheriff of Coffee County or to their father. We issued the rule nisi and the cause is here on the petition, exhibits thereto, the writ, and the answer of the respondent.
We state the necessary facts from the answer of respondent, because the rule is that where the circuit judge's answer to the writ is not controverted, and is well pleaded, it will be taken as true and conclusive. Ex parte Mullins, 258 Ala. 665, 64 So. 2d 829, 14 Ala.Dig., Mandamus.
On September 10, 1955, George Calvin Phillips filed a suit for divorce in the Circuit Court of Coffee County, in Equity, against his wife, Patsy Ruth Phillips, on the ground of cruelty, and asked for the custody of their two small sons. The divorce and custody, as prayed, were granted on October 12, 1955. Shortly thereafter, Phillips moved his family to Haines City, Florida, and took a job. Patsy Ruth Phillips soon arrived there and on December 10, 1955, they remarried.
In January, 1956, the family moved to Montgomery, Alabama, and the parents separated again on July 22, 1956. Phillips moved from Montgomery to Elba and filed a bill for divorce. Patsy Ruth filed a plea in abatement, which was sustained, and the bill of complaint was dismissed.
On November 12, 1956, Phillips petitioned the Circuit Court of Coffee County, in Equity, to award the custody of their two minor sons to him, they being at that time with their mother in Montgomery. A plea in abatement was filed to this petition. The court held the plea insufficient and granted the prayer of the petition on the authority of the following statement in Exparte Ingalls, 256 Ala. 305, 54 So. 2d 288, 290:
It is the theory of respondent that since the custody of the children was decided in the original divorce decree of October 12, 1955, jurisdiction over the minors was retained. Petitioner's theory is that remarriage of the parents with each other annuls the divorce and nullifies the provisions of the decree as to the custody of the children.
This question has not been previously presented to an appellate court in this state. It has arisen in other jurisdictions and there seems to be a unanimity among the appellate *79 courts of other states supporting the position taken here by petitioner. We quote, with approval, from Lockard v. Lockard, Ohio Com.Pl., 102 N.E.2d 747: (The words "remarry" and "remarriage," as used, mean the remarriage of divorced parents to each other.)
Other cases than the Georgia and Texas cases cited in the Lockard case reaching the same result are: Jenkins v. Followell, Okl., 262 P.2d 880; Oliphant v. Oliphant, 177 Ark. 613, 7 S.W.2d 783; Dunlap v. Dunlap, 88 Okl. 200, 212 P. 608; Cain v. Garner, 169 Ky. 633, 185 S.W. 122, L.R.A.1916E, 682, Ann.Cas.1918B, 824; Lowe v. Lowe, 53 Wash. 50,101 P. 704.
There is a clear distinction between these cases and the sentence quoted from Ex parte Ingalls, supra, on which the trial court relied. Other courts hold in accord with the expression in Ex parte Ingalls. The summary in 27 C.J.S. Divorce § 314, p. 1180, reads in part:
The jurisdiction referred to in Ex parte Ingalls relates to a situation where the parents are divorced, and does not, and was never intended to apply to instances where the divorced parents remarried each other.
In brief filed here on behalf of respondent, the following paragraph appears:
The posed question is answered in Miller v. Powell, Tex.Civ.App., 212 S.W.2d 876, and Ex parte Heilman, 176 Kan. 5, 269 P.2d 459, 461. In the latter case it was said:
It follows that the respondent should have dismissed the petition of the father for custody of the minor children, because the Circuit Court of Coffee County in Equity, lacked jurisdiction. Unless that court vacates the order of November 21, 1956, upon being advised of this ruling, the peremptory writ of mandamus will be issued.
Writ awarded conditionally.
LIVINGSTON, C. J., and LAWSON, SIMPSON and STAKELY, JJ., concur. | May 9, 1957 |
bb491b1f-0af2-4b7d-88f8-c16966647ea0 | Ex parte Albert Wilding. PETITION FOR WRIT OF MANDAMUS: CRIMINAL (In re: Ex parte State (In re: State of Alabama v. Albert Wilding)) | N/A | 1080339 | Alabama | Alabama Supreme Court | Rel: 12/30/2009
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
____________________
1080339
____________________
Ex parte Albert Wilding
PETITION FOR WRIT OF MANDAMUS
(In re: Ex parte State
(In re: State of Alabama
v.
Albert Wilding))
(Montgomery Circuit Court, CC-08-1115;
Court of Criminal Appeals, CR-08-0024)
On Application for Rehearing
PARKER, Justice.
This Court's opinion of September 25, 2009, is withdrawn,
1080339
2
and the following is substituted therefor.
The issue before this Court is whether the Court of
Criminal Appeals erred when it ordered the Montgomery Circuit
Court to set aside an order setting bail for a defendant who
was being held under indictment for a capital crime. The Court
of Criminal Appeals issued a writ of mandamus directing the
Montgomery Circuit Court to vacate its order setting bail for
Albert Wilding, who is under indictment for the murder of his
wife, and Wilding has petitioned this Court for a writ of
mandamus directing the Court of Criminal Appeals to vacate its
writ. We deny the petition.
Background and Procedural Posture
In August 2008, Wilding was indicted for murdering his
wife, Judie Wilding, for pecuniary gain, defined by §
13A-5-40(a)(7), Ala. Code 1975, as a capital offense. Judie
disappeared on April 1, 2000. Her body has never been found,
although her credit cards, driver's license, and other
personal effects were found under a mattress in the home she
shared with Wilding. Her automobile was found a few days after
her disappearance; inside the vehicle were a loaded pistol and
about $2,000 cash. At the time of her disappearance, Wilding
1080339
3
was the beneficiary of an insurance policy on Judie's life in
excess of $800,000.
At Wilding's initial appearance, Judge Eugene Reese
denied bail, but in September 2008 Wilding filed a motion to
set bail under Rule 7, Ala. R. Crim. P. Judge Charles Price
held a hearing on September 26, 2008, at which evidence was
presented ore tenus, and, on October 7, 2008, he set bail at
$100,000. The State then petitioned the Court of Criminal
Appeals for a writ of mandamus, requesting that Judge Price be
directed to set aside his order setting bail because, it
argued, Judge Price had applied the incorrect legal standard
when ruling on the validity of Wilding's bail request. On
December 10, 2008, the Court of Criminal Appeals issued an
order granting the State's petition, and it directed Judge
Price to set aside his October 7, 2008, order. State v.
Wilding (No. CR-08-0024, December 10, 2008), ___ So. 3d ___
(Ala. Crim. App. 2008)(table). The Court of Criminal Appeals'
order stated, in part, that "'"[w]here one is imprisoned by
virtue of an indictment he is presumed to be guilty in the
highest degree, and to be entitled to bail as a right, must
overcome this presumption by proof."' Ex parte Landers, 690
1080339
4
So. 537, 538 (Ala. Crim. App. 1997), quoting Livingston v.
State, 40 Ala. App. 376, 377, 116 So. 2d 396, 397 (1959). See
Ex parte Patel, 879 So. 2d 532 (Ala. 2003)."
On December 16, 2008, Wilding filed a petition for a writ
of mandamus in this Court requesting that this Court direct
the Court of Criminal Appeals to vacate its order granting the
State's mandamus petition. Wilding argued that he is entitled
to bail unless the three prerequisites for the denial of bail
in a capital case, set forth by this Court in Ex parte Patel,
879 So. 2d 532, 533-34 (Ala. 2003), are met:
"'The evidence must be clear and strong, that it
would lead a well-guarded and dispassionate judgment
to the conclusion that (1) the offense has been
committed; (2) the accused is the guilty agent; and
(3) he would probably be punished capitally if the
law is administered.' Trammell v. State, 284 Ala.
31, 32, 221 So. 2d 390, 390 (1969). The State has
the burden of proving that the crime was committed
and showing 'facts that would convince the judge
that upon final trial the judge would sustain a
verdict
pronouncing
the
defendant
guilty
and
imposing the death penalty.' Roan v. State, 24 Ala.
App. 517, 517, 137 So. 320, 321 (1931). A safe rule
for a trial court to follow 'is to deny bail if the
court could sustain a capital conviction by a jury
based on the same evidence taken at the hearing
seeking bail; and to allow bail if the evidence is
not so efficacious.' Webb v. State, 35 Ala. App.
575, 576, 50 So. 2d 451, 452 (1951); Roddam v.
State, 33 Ala. App. 356, 33 So. 2d 384 (1948)."
(Emphasis added.) Thus, Wilding argued that, in order for him
1080339
5
to be denied bail, the State must convince the judge at his
bail hearing that Wilding committed the crime, that he would
be convicted of the crime, and that he would probably be
sentenced to death.
The State argued that the trial court exceeded its
discretion in setting bail in this case because, it says, the
trial court appears to have shifted the evidentiary burden by
requiring the State to present evidence to support its
opposition to setting bail for Wilding. The State referred the
trial court to this Court's decision in Ex parte Hall, 844 So.
2d 571 (Ala. 2002), to support its position that the burden at
the bail hearing was on Wilding, a capital defendant, to offer
proof to overcome the presumption of guilt created by the
indictment. In Ex parte Hall this Court stated:
"'In Burks v. State, 600 So. 2d 374 (Ala. Cr.
App.), on return to remand, 600 So. 2d 387 (Ala. Cr.
App. 1991), this court addressed the issue whether
a person accused of a capital offense is entitled to
bail when he alleges that the proof was not evident.
This court in Burks stated:
"'"The appellant argues that he was
entitled to reasonable bond because the
proof was not evident nor the presumption
great that he was guilty of the capital
offense. See Ex parte Bynum, 294 Ala. 78,
82, 312 So. 2d 52, 55 (1975). However,
'"[w]here one is imprisoned [for a capital
1080339
6
offense] by virtue of an indictment he is
presumed to be guilty in the highest
degree, and to be entitled to bail as of
right, must overcome this presumption by
proof."' Livingston v. State, 40 Ala. App.
376, 377, 116 So. 2d 396, 397 (1959)."
"'600 So. 2d at 381.'"
844 So. 2d at 573 (quoting Ex parte Landers, 690 So. 2d at
538)(emphasis added). Thus, the State argued, unlike the
defendant
in
Patel,
Wilding
is
being
held
under
an
indictment. Because he is being held under an indictment, he
is presumed guilty in the highest degree and he has the burden
to overcome the presumption of guilt if he is to have bail set
in his case.
The trial court stated in its order that the testimony of
Wilding's witnesses is "uncontroverted by the state, and the
state further elected not to offer any testimony on the
quality or strength of its case."
Standard of Review
This Court recently restated the standard by which it
reviews a petition for a writ of mandamus:
"'"Mandamus is an extraordinary remedy ... requiring
a showing that there is: '1) a clear legal right in
the
petitioner
to
the
order
sought;
(2)
an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
1080339
7
another adequate remedy; and (4) properly invoked
jurisdiction of the court.' Ex parte Jackson, 737
So. 2d 452, 453 (Ala. 1999) (quoting Ex parte Alfab,
Inc., 586 So. 2d 889, 891 (Ala. 1991)). Because
mandamus is an extraordinary remedy, the standard of
review on a petition for a writ of mandamus is
whether there is a clear showing of error on the
part of the trial court. Ex parte Finance America
Corp., 507 So. 2d 458, 460 (Ala. 1987)." Ex parte
Atlantis Dev. Co., 897 So. 2d 1022, 1024 (Ala.
2004).'"
Ex parte Sellers, [Ms. 1071716, August 21, 2009] ___ So. 3d
___, ____ (Ala. 2009)(quoting Ex parte Atlantis Dev. Co., 897
So. 2d 1022, 1024 (Ala. 2004)).
Also, "[u]nder the ore tenus standard of review, we must
assume the trial court's factual finding ... was correct, and
thus we must uphold the order based on that finding unless the
court had before it no credible evidence to support that
finding." W.D. Williams, Inc. v. Ivey, 777 So. 2d 94, 98 (Ala.
2000).
Analysis
The question before this Court is whether there is a
clear showing of error on the part of the trial court that
would justify the issuance of the writ by the Court of
Criminal Appeals directing the trial court to vacate its
order.
1080339
8
At the bail hearing, the trial court received and
considered testimony from Wilding. The State presented no
testimony, and the trial court attempted to clarify the
State's position, asking: "The burden is on the Defendant to
prove the State doesn't have a case against them?" The State
responded, "Yes, Judge. He has to overcome the burden of proof
when he's charged by an indictment." Wilding responded,
stating that "the law [is that], even in [Ex parte] Patel[,
879 So. 2d 532 (Ala. 2003)], the State has the burden of
proving that the crime was committed, showing facts that would
convince a Judge that, upon trial, it's likely he would be
found guilty and likely would get the death penalty."
In the trial court, the State relied on the portion of Ex
parte Hall quoted above, holding that where one is imprisoned
for a capital offense by virtue of an indictment he is
presumed to be guilty in the highest degree and, to be
entitled to bail as of right, must overcome this presumption
by proof. The State argued that Wilding's indictment places
the burden on Wilding to overcome that presumption if bail is
to be set in his case.
The order of the trial court, however, did not address
1080339
9
Wilding's burden of overcoming the presumption of guilt. It
states, in pertinent part:
"The Court heard testimony from the registered
nurse who works for Quality Correctional Healthcare,
and serves as health service administrator at the
Montgomery County jail. The essence of her testimony
is that the defendant suffers from serious health
problems, including, in her opinion, the beginning
stages of dementia. The court also heard testimony
from three male friends and his former attorney, who
vouch for his steadfastness and commitment to the
community of Montgomery County.
"The stated testimony was uncontroverted by the
state, and the state further elected not to offer
any testimony on the quality or strength of its
case."
Thus, Wilding's proof was not directed to "overcoming the
presumption" of guilt that is inherent in the indictment
against him. Because there was no proof addressing the
presumption, the Court of Criminal Appeals did not err when it
relied on precedent that requires such proof to find a clear
showing of error on the part of the trial court.
Conclusion
Because the Court of Criminal Appeals had a sufficient
legal basis to issue the writ of mandamus ordering the trial
court to set aside its order setting bail for Wilding, we deny
Wilding's petition for a writ of mandamus.
1080339
10
APPLICATION GRANTED; OPINION OF SEPTEMBER 25, 2009,
WITHDRAWN; OPINION SUBSTITUTED; PETITION DENIED.
Cobb, C.J., and Lyons, Woodall, Stuart, Smith, Bolin, and
Murdock, JJ., concur.
Shaw, J., recuses himself.*
*Justice Shaw was a member of the Court of Criminal
Appeals when that court considered this case. | December 30, 2009 |
3697a7a5-588e-42f1-8e5f-594466b333d0 | Ex parte State of Alabama. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Beryl R. Hiler v. State of Alabama) | N/A | 1081296 | Alabama | Alabama Supreme Court | REL: 12/04/2009
N o t i c e :
T h i s o p i n i o n i s
s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n
t h e
advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e
r e q u e s t e d t o n o t i f y t h e
Reporter of
Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741 ((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l
o r
o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may
be
made b e f o r e
t h e o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1081296
Ex p a r t e S t a t e o f
Alabama
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In r e : B e r y l R. H i l e r
v.
S t a t e o f Alabama)
( F r a n k l i n C i r c u i t Court, CC-06-290;
Court o f C r i m i n a l Appeals, CR-07-0361)
SMITH,
J u s t i c e .
The S t a t e o f
A l a b a m a p e t i t i o n e d
t h i s C o u r t f o r
a w r i t o f
c e r t i o r a r i t o r e v i e w t h e
C o u r t o f C r i m i n a l A p p e a l s '
d e c i s i o n
r e v e r s i n g B e r y l R. H i l e r ' s c o n v i c t i o n f o r f a l s e l y r e p o r t i n g an
i n c i d e n t , a v i o l a t i o n o f
§ 1 3 A - 1 1 - 1 1 , A l a . Code 1 9 7 5 .
H i l e r
v. S t a t e , [Ms.
CR-07-0361, May 1, 2009]
So.
3d
( A l a .
C r i m . A p p . 2 0 0 9 ) .
We g r a n t e d
c e r t i o r a r i r e v i e w t o c o n s i d e r ,
1081296
as a m a t e r i a l q u e s t i o n o f
f i r s t i m p r e s s i o n , w h e t h e r t h e
p l a i n
l a n g u a g e
o f
§ 13A-11-11
p r o h i b i t s
H i l e r ' s
p r o s e c u t i o n
f o r
f a l s e l y
r e p o r t i n g an
i n c i d e n t .
F o r
t h e
r e a s o n s
d i s c u s s e d
b e l o w ,
we
r e v e r s e
t h e
j u d g m e n t
o f
t h e
C o u r t
o f
C r i m i n a l
A p p e a l s .
F a c t s and
P r o c e d u r a l
H i s t o r y
The
e v i d e n c e
p r e s e n t e d
a t
t r i a l
t e n d s
t o
show
t h e
f o l l o w i n g .
On
May
25,
2006, l a w - e n f o r c e m e n t
o f f i c e r s
were
c a l l e d
t o
t h e
r e s i d e n c e
o f G r e g N o b l e
and
M i c h e l l e
N o b l e .
H i l e r
had
p r e v i o u s l y b e e n m a r r i e d
t o M i c h e l l e , and
she
was
a l l o w i n g H i l e r t o s t a y a t t h e N o b l e s '
r e s i d e n c e so t h a t
H i l e r
c o u l d
v i s i t
h i s son more f r e q u e n t l y .
E a r l i e r on t h e m o r n i n g
o f May
25,
200 6,
H i l e r
had
a r r i v e d
t o w o r k
l a t e ,
had
b e e n
f i r e d ,
and
h a d
r e t u r n e d
t o
t h e
N o b l e s '
r e s i d e n c e
u n d e r
t h e
i n f l u e n c e o f a l c o h o l .
M i c h e l l e i n f o r m e d
H i l e r
t h a t he
w o u l d
h a v e t o move o u t o f t h e r e s i d e n c e ; H i l e r t o l d M i c h e l l e t h a t
he
w a n t e d t o " d i e by c o p . "
H i l e r
l a t e r t e l e p h o n e d e m e r g e n c y
911
t o r e p o r t a d o m e s t i c d i s p u t e .
M i c h e l l e , who
was u n a w a r e t h a t
H i l e r had
t e l e p h o n e d
911,
r e c e i v e d a t e l e p h o n e
c a l l
f r o m
t h e
911 o p e r a t o r .
M i c h e l l e i n f o r m e d t h e 911 o p e r a t o r t h a t she
and
H i l e r had b e e n a r g u i n g b u t t h a t t h e r e was
no d o m e s t i c
d i s p u t e
2
1081296
i n p r o g r e s s .
M i c h e l l e t h e n t e l e p h o n e d
F r a n k l i n C o u n t y
S h e r i f f
L a r r y P l o t t t o r e q u e s t
t h a t H i l e r be r e m o v e d f r o m t h e N o b l e s '
r e s i d e n c e so t h a t "he c o u l d s l e e p i t
o f f " a t a
m o t e l .
When
l a w - e n f o r c e m e n t
o f f i c e r s
a r r i v e d a t t h e N o b l e s '
r e s i d e n c e ,
H i l e r
w a l k e d
i n t o
an
o u t b u i l d i n g
l o c a t e d
a p p r o x i m a t e l y
100
m e t e r s
f r o m
t h e N o b l e s '
r e s i d e n c e
and
r e t u r n e d w i t h an o b j e c t t h a t t h e o f f i c e r s
b e l i e v e d , b a s e d on
t h e i r
o b s e r v a t i o n s
and t r a i n i n g ,
t o be an e x p l o s i v e
d e v i c e .
H i l e r
t o l d
o f f i c e r s a t t h e s c e n e t h a t t h e o b j e c t was a bomb;
t h a t " h i s w i f e was t r y i n g t o t a k e h i s
c h i l d r e n away"; and t h a t
he
" d i d n ' t c a r e t o d i e . "
H i l e r w a l k e d up t h e h i l l t o w a r d t h e
N o b l e s ' r e s i d e n c e w i t h t h e d e v i c e i n
h i s
h a n d ; h o w e v e r ,
H i l e r
r e t u r n e d t o t h e o u t b u i l d i n g when an o f f i c e r drew h i s weapon,
p o i n t e d i t
a t H i l e r , a n d o r d e r e d
H i l e r t o s t o p .
L a t e r ,
H i l e r
came o u t o f t h e o u t b u i l d i n g w i t h t h e d e v i c e
s t r a p p e d
a r o u n d
h i s w a i s t a n d t o l d t h e o f f i c e r s
t h a t t h e d e v i c e h a d a m e r c u r y
s w i t c h .
G r e g and M i c h e l l e t o l d
o f f i c e r s
t h a t t h e i t e m
H i l e r
had i n h i s
p o s s e s s i o n was n o t a bomb b u t was a " t i m e
c a p s u l e "
H i l e r h a d b e e n m a k i n g w i t h h i s s o n ; n o n e t h e l e s s ,
a
s p e c i a l -
r e s p o n s e l a w - e n f o r c e m e n t team was n o t i f i e d a n d , a t some p o i n t
d u r i n g t h e i n c i d e n t , G r e g and M i c h e l l e were e v a c u a t e d f r o m t h e
3
1081296
r e s i d e n c e .
I n v e s t i g a t o r
J a s o n
Holcomb
o f
t h e
F r a n k l i n
C o u n t y
S h e r i f f ' s
D e p a r t m e n t
n e g o t i a t e d
w i t h
H i l e r ,
and
H i l e r
e v e n t u a l l y
a g r e e d t o p u t t h e d e v i c e
down i f Holcomb
w o u l d
l e a v e h i s gun i n h i s v e h i c l e .
Holcomb p u t h i s gun i n
h i s
v e h i c l e and o b t a i n e d a s t u n gun i n s t e a d .
A f t e r H i l e r
l a i d t h e
d e v i c e down and w a l k e d a s h o r t
d i s t a n c e , Holcomb
a t t e m p t e d
u n s u c c e s s f u l l y t o u s e t h e s t u n gun on H i l e r .
H i l e r t h e n r a n
i n t h e d i r e c t i o n o f t h e d e v i c e ; o f f i c e r s o r d e r e d
H i l e r t o s t o p
and, when he d i d
n o t do s o , t h e o f f i c e r s
s t a r t e d s h o o t i n g a t
H i l e r .
H i l e r s t o p p e d , p u t h i s h a n d s up, and s a i d ,
" I t ' s n o t
r e a l . "
A bomb t e c h n i c i a n w i t h t h e F l o r e n c e
P o l i c e D e p a r t m e n t
and
an
e x p l o s i v e
t e c h n i c i a n
w i t h
t h e A l a b a m a
B u r e a u
o f
I n v e s t i g a t i o n
v e r i f i e d
t h a t t h e "bomb" was a c t u a l l y a p i p e .
H i l e r was c o n v i c t e d o f f a l s e l y
r e p o r t i n g an i n c i d e n t , a
v i o l a t i o n
o f § 1 3 A - 1 1 - 1 1 , A l a . Code 1 9 7 5 ; t h e t r i a l
c o u r t
s e n t e n c e d
H i l e r t o s i x y e a r s '
i m p r i s o n m e n t .
1
H i l e r
a p p e a l e d
1 H i l e r was a l s o
c o n v i c t e d o f m e n a c i n g ; t h e t r i a l
c o u r t
s e n t e n c e d
h i m
t o
s i x months
i n
j a i l
on
t h e
m e n a c i n g
c o n v i c t i o n , t h e s e n t e n c e t o r u n c o n c u r r e n t l y w i t h t h e s i x - y e a r
s e n t e n c e f o r f a l s e l y
r e p o r t i n g an i n c i d e n t .
The C o u r t o f
C r i m i n a l A p p e a l s a f f i r m e d H i l e r ' s c o n v i c t i o n f o r m e n a c i n g , and
t h i s C o u r t d e n i e d
H i l e r ' s p e t i t i o n f o r
a w r i t o f c e r t i o r a r i as
t o
t h a t c o n v i c t i o n .
4
1081296
t o t h e C o u r t o f C r i m i n a l A p p e a l s , a r g u i n g
t h a t h i s c o n d u c t d i d
n o t
f a l l
w i t h i n t h e p u r v i e w o f
§ 1 3 A - 1 1 - 1 1 , A l a . Code
1975,
b e c a u s e ,
he
c l a i m e d ,
t h e
e v i d e n c e
was
u n d i s p u t e d
t h a t
t h e
o f f i c e r s were e n g a g e d i n a p o l i c e a c t i v i t y when H i l e r made t h e
a l l e g e d l y
f a l s e
r e p o r t ,
t h u s e x e m p t i n g
h i s
r e p o r t
f r o m
t h e
o p e r a t i o n
o f § 1 3 A - 1 1 - 1 1 .
A t
a l l r e l e v a n t
t i m e s ,
§ 1 3 A - 1 1 - 1 1 ( a ) ,
A l a . Code
1 9 7 5 ,
2
p r o v i d e d :
"A p e r s o n c o m m i t s t h e c r i m e o f
f a l s e l y r e p o r t i n g
an
i n c i d e n t
i f w i t h
k n o w l e d g e
t h a t
t h e
i n f o r m a t i o n
r e p o r t e d ,
c o n v e y e d ,
o r
c i r c u l a t e d i s
f a l s e ,
he
o r
she
i n i t i a t e s
o r
c i r c u l a t e s
a
f a l s e
r e p o r t
o r
w a r n i n g
o f
an
a l l e g e d
o c c u r r e n c e
o r
i m p e n d i n g
o c c u r r e n c e
o f
a
f i r e ,
bomb,
e x p l o s i o n ,
c r i m e ,
c a t a s t r o p h e ,
o r
e m e r g e n c y
u n d e r
c i r c u m s t a n c e s
i n
w h i c h
i t
i s
l i k e l y
t o
c a u s e
e v a c u a t i o n
o f
a
b u i l d i n g ,
p l a c e
o f
a s s e m b l y ,
o r
t r a n s p o r t a t i o n
f a c i l i t y ,
o r
t o
c a u s e
p u b l i c
i n c o n v e n i e n c e
o r
a l a r m . "
The
Commentary t o § 1 3 A - 1 1 - 1 1 , A l a . Code 1975,
p r o v i d e s ,
i n
p e r t i n e n t
p a r t :
" A l t h o u g h t h e C r i m i n a l Code d o e s n o t make i n t e n t
an
e l e m e n t
o f
t h e
o f f e n s e ,
k n o w l e d g e
t h a t
t h e
i n f o r m a t i o n
r e p o r t e d ,
c o n v e y e d
o r
c i r c u l a t e d
was
f a l s e
i s r e q u i r e d .
I t
i s
a l s o
n e c e s s a r y
t h a t
t h e
2 The A l a b a m a L e g i s l a t u r e amended § 1 3 A - 1 1 - 1 1 , A l a . Code
1975,
e f f e c t i v e A u g u s t
1,
2009.
Those amendments
a r e
n o t
a p p l i c a b l e
h e r e .
5
1081296
f a l s e
i n f o r m a t i o n be i n i t i a t e d o r c i r c u l a t e d u n d e r
c i r c u m s t a n c e s
i n w h i c h
i t i s
l i k e l y
t o
c a u s e
e v a c u a t i o n
o f a b u i l d i n g ,
p l a c e
o f a s s e m b l y , o r
t r a n s p o r t a t i o n
f a c i l i t y ,
o r
t o
c a u s e
p u b l i c
i n c o n v e n i e n c e o r a l a r m .
"The C r i m i n a l Code s e e k s t o c o v e r i n s t a n c e s i n
w h i c h a f a l s e r e p o r t i s
made t o p u b l i c o f f i c i a l s n o t
e n g a g e d i n p o l i c e o r f i r e
c o n t r o l
a c t i v i t i e s , f o r
i n s t a n c e s , s c h o o l a d m i n i s t r a t o r s ,
a i r l i n e
o f f i c i a l s ,
o r
m a n a g e r s
o f
p u b l i c
b u i l d i n g s .
The
p r i m a r y
p u r p o s e o f § 13A-11-11
i s t o p r o t e c t
t h e p u b l i c
a g a i n s t
i n c o n v e n i e n c e o r a l a r m , a n d n o t t o p r o t e c t
a g a i n s t
i n t e r f e r e n c e
w i t h
g o v e r n m e n t a l
o p e r a t i o n s ;
t h i s i s
t h e p u r p o s e o f §§ 13A-10-8 a n d 13A-10-9."
( E m p h a s i s added.)
The C o u r t o f C r i m i n a l A p p e a l s r e v e r s e d t h e t r i a l
c o u r t ' s
j u d g m e n t a n d r e n d e r e d a j u d g m e n t i n f a v o r o f H i l e r as t o
t h e
c o n v i c t i o n f o r f a l s e l y
r e p o r t i n g an i n c i d e n t .
The C o u r t o f
C r i m i n a l A p p e a l s c o n c l u d e d t h a t t h e
Commentary t o § 1 3 A - 1 1 - 1 1 ,
A l a .
Code 1975, s p e c i f i c a l l y
s t a t e d t h a t t h e s t a t u t e d i d n o t
a p p l y t o f a l s e
r e p o r t s made t o p u b l i c
o f f i c i a l s e n g a g e d i n
p o l i c e
a c t i v i t i e s .
I n i t s
o p i n i o n ,
t h e C o u r t o f
C r i m i n a l
A p p e a l s
s t a t e d :
"The
Commentary
t o § 1 3 A - 1 1 - 1 1 , A l a . Code 1975,
s p e c i f i c a l l y
e x p l a i n s
t h a t t h e s t a t u t e was
i n t e n d e d
t o
a p p l y t o f a l s e
r e p o r t s made t o p u b l i c
o f f i c i a l s
who were n o t e n g a g e d i n p o l i c e
a c t i v i t y .
I t a l s o
e x p l a i n s
t h a t t h e p r i m a r y p u r p o s e o f t h e s t a t u t e i s
t o
p r o t e c t t h e p u b l i c
f r o m
i n c o n v e n i e n c e o r a l a r m
and
t h a t t h e p u r p o s e o f §§ 13A-10-8 a n d 13A-10-9,
A l a .
Code 1975, i s t o p r o t e c t
a g a i n s t
i n t e r f e r e n c e
6
1081296
w i t h g o v e r n m e n t a l o p e r a t i o n s .
The e v i d e n c e i n t h i s
c a s e
c l e a r l y
e s t a b l i s h e d
t h a t
any
f a l s e
r e p r e s e n t a t i o n
H i l e r made a b o u t h a v i n g a bomb was
d i r e c t e d
t o l a w e n f o r c e m e n t
o f f i c e r s
who
were
e n g a g e d i n l a w e n f o r c e m e n t
a c t i v i t i e s .
T h e r e f o r e ,
b a s e d on t h e p l a i n
l a n g u a g e o f t h e Commentary t o
§ 1 3 A - 1 1 - 1 1 , A l a .
Code 1 9 7 5 , we c o n c l u d e
t h a t t h e
s t a t u t e was n o t i n t e n d e d t o a p p l y t o f a c t s
s u c h as
t h o s e i n t h i s
c a s e . "
H i l e r ,
So. 3d a t
.
The
S t a t e p e t i t i o n e d
t h i s
C o u r t f o r c e r t i o r a r i
r e v i e w ,
and we g r a n t e d t h e w r i t t o c o n s i d e r , as a m a t e r i a l q u e s t i o n o f
f i r s t
i m p r e s s i o n , w h e t h e r t h e p l a i n
l a n g u a g e o f § 13A-11-11
p r e c l u d e s
H i l e r ' s
c o n v i c t i o n
f o r
f a l s e l y
r e p o r t i n g
an
i n c i d e n t .
S t a n d a r d o f R e v i e w
" ' " T h i s C o u r t
r e v i e w s p u r e q u e s t i o n s o f l a w i n c r i m i n a l
c a s e s de n o v o . " ' "
Ex p a r t e B r o w n , 11 So. 3d 933, 935 ( A l a .
2008)
( q u o t i n g Ex p a r t e Morrow, 915 So. 2d 539, 541
( A l a .
2 0 0 4 ) , q u o t i n g i n t u r n Ex p a r t e K e y , 890 So. 2d 1 0 5 6 , 1059
( A l a .
2 0 0 3 ) ) .
A n a l y s i s
The
S t a t e
c o n t e n d s
t h a t t h e C o u r t o f C r i m i n a l
A p p e a l s
e r r e d i n r e l y i n g on t h e p l a i n l a n g u a g e o f t h e Commentary t o §
1 3 A - 1 1 - 1 1 , A l a . Code 1 9 7 5 , r a t h e r t h a n t h e p l a i n l a n g u a g e o f
7
1081296
t h e
s t a t u t e
i n
r e v e r s i n g
t h e
t r i a l
c o u r t ' s
j u d g m e n t
and
r e n d e r i n g
a j u d g m e n t i n H i l e r ' s f a v o r as t o t h e c o n v i c t i o n f o r
f a l s e l y r e p o r t i n g an i n c i d e n t .
The
S t a t e
a s s e r t s t h a t §
13A-
1 1 - 1 1 ,
e n a c t e d
i n
1977,
p r o h i b i t e d
t h e
f a l s e
r e p o r t i n g
o f
c e r t a i n
e m e r g e n c i e s - - s u c h
as
an
e x p l o s i o n
o r
a
f i r e - - m a d e
u n d e r c i r c u m s t a n c e s
t h a t
a r e
l i k e l y
t o c a u s e an
e v a c u a t i o n ,
p u b l i c
i n c o n v e n i e n c e ,
o r a l a r m ; s u c h c o n d u c t was
d e s i g n a t e d
a m i s d e m e a n o r .
I n 2000, t h e
l e g i s l a t u r e , i n A c t No.
2 0 0 0 - 1 1 3 ,
A l a .
A c t s
2000,
§
1,
amended
§ 13A-11-11
t o , among
o t h e r
t h i n g s ,
d e s i g n a t e
t h e
f a l s e r e p o r t
o f a bomb o r an
e x p l o s i v e
as
a C l a s s
C
f e l o n y .
As
n o t e d ,
t h e
Commentary
t o
§
13A-11-11
s t a t e s
t h a t
" [ t ] h e C r i m i n a l Code s e e k s t o c o v e r i n s t a n c e s
i n w h i c h a f a l s e
r e p o r t
i s made t o p u b l i c
o f f i c i a l s
n o t e n g a g e d i n p o l i c e
o r
f i r e c o n t r o l a c t i v i t i e s , f o r i n s t a n c e s , s c h o o l
a d m i n i s t r a t o r s ,
a i r l i n e
o f f i c i a l s , o r
m a n a g e r s o f p u b l i c b u i l d i n g s " and
t h a t
" [ t ] h e p r i m a r y p u r p o s e o f § 13A-11-11 i s t o p r o t e c t t h e
p u b l i c
a g a i n s t
i n c o n v e n i e n c e
o r
a l a r m ,
and
n o t
t o
p r o t e c t
a g a i n s t
i n t e r f e r e n c e w i t h g o v e r n m e n t a l o p e r a t i o n s ;
t h i s i s t h e p u r p o s e
o f
§§ 13A-10-8 and
13A-10-9."
The
S t a t e
c o n t e n d s , h o w e v e r ,
t h a t
no
a d d i t i o n a l c o m m e n t a r y was
a d d e d t o
§ 13A-11-11 when
8
1081296
t h a t
s t a t u t e was amended i n 2000 t o add t h e f e l o n y
p r o v i s i o n
f o r t h e f a l s e r e p o r t i n g o f a bomb.
A d d i t i o n a l l y ,
t h e
S t a t e
a s s e r t s
t h a t
§ 13A-10-8,
w h i c h
a d d r e s s e s
r e n d e r i n g
a
f a l s e
a l a r m ,
and
§
13A-10-9,
w h i c h
a d d r e s s e s f a l s e r e p o r t i n g t o l a w - e n f o r c e m e n t
a u t h o r i t i e s , h a v e
n o t b e e n amended t o i n c l u d e a d d i t i o n a l l a n g u a g e p e r t a i n i n g t o
t h e
f a l s e r e p o r t i n g o f a bomb and
t h a t
o n l y
§ 1 3 A - 1 1 - 1 1 ,
as
amended i n 2000,
s p e c i f i c a l l y
a d d r e s s e s
t h e
o f f e n s e
o f
t h e
f a l s e r e p o r t i n g o f a bomb. F i n a l l y , t h e S t a t e a r g u e s t h a t
t h e
p l a i n
l a n g u a g e
o f § 13A-11-11 does n o t
s p e c i f i c a l l y
e x c l u d e
any p e r s o n o r e n t i t y f r o m p r o s e c u t i o n
i f t h e r e p o r t o f a bomb
was made t o l a w e n f o r c e m e n t
e n g a g e d i n p o l i c e
a c t i v i t y .
T h i s C o u r t has n e v e r r e v i e w e d § 13A-11-11 i n e i t h e r i t s
p r e -
o r p o s t - 2 0 0 0
amendment f o r m , and t h e C o u r t o f
C r i m i n a l
A p p e a l s has
r e v i e w e d o n l y
t h e p r e - 2 0 0 0 amendment v e r s i o n
o f
t h e s t a t u t e .
See A v a n r e n r e n v. C i t y o f H u n t s v i l l e , 597 So. 2d
239
( A l a . C r i m . App.
1 9 9 2 ) .
I n A v a n r e n r e n , t h e d e f e n d a n t , a c u s t o d i a n
a t J o h n s o n
H i g h
S c h o o l i n H u n t s v i l l e , t e l e p h o n e d a p r i v a t e
s e c u r i t y company
t h a t had b e e n h i r e d by t h e H u n t s v i l l e C i t y S c h o o l S y s t e m
and
r e p o r t e d t h a t s e v e r a l men armed w i t h k n i v e s were d e a l i n g
d r u g s
9
1081296
i n
f r o n t o f J o h n s o n
H i g h S c h o o l .
When t h e
s e c u r i t y - c o m p a n y
p e r s o n n e l
a r r i v e d
a t t h e
s c h o o l ,
t h e y
f o u n d
no
one
on
t h e
p r e m i s e s b u t t h e d e f e n d a n t .
The d e f e n d a n t
t o l d t h e
s e c u r i t y -
company p e r s o n n e l t h a t
he
had
t e l e p h o n e d them b u t
t h a t
he
a c t u a l l y w a n t e d t o r e p o r t
a s t o l e n vacuum c l e a n e r ;
t h a t
he
"knew how
t o g e t r e s u l t s " ; and t h a t he was
" t i r e d o f
w a i t i n g
two o r t h r e e h o u r s f o r t h e s e c u r i t y company p e r s o n n e l t o g e t
t o
t h e
s c h o o l . "
597
So.
2d
a t 240.
The
d e f e n d a n t
l a t e r
t e s t i f i e d
t h a t
h i s r e p o r t
t h a t
men
armed w i t h
k n i v e s were
d e a l i n g
d r u g s
i n f r o n t
o f t h e s c h o o l was
t r u e b u t
t h a t
t h e
armed men
had
l e f t
t h e p r e m i s e s b e f o r e t h e
s e c u r i t y - c o m p a n y
p e r s o n n e l a r r i v e d .
The d e f e n d a n t was
c o n v i c t e d o f i s s u i n g a
f a l s e r e p o r t u n d e r § 1 3 A - 1 1 - 1 1 ; t h e
t r i a l c o u r t s e n t e n c e d t h e
d e f e n d a n t t o 90 d a y s i n j a i l ;
t h e s e n t e n c e was
s u s p e n d e d ,
and
he was
o r d e r e d t o s e r v e 12 months on p r o b a t i o n .
The d e f e n d a n t a p p e a l e d t o t h e C o u r t o f C r i m i n a l A p p e a l s ,
a r g u i n g t h a t h i s c o n d u c t d i d n o t
f a l l u n d e r t h e p u r v i e w o f §
1 3 A - 1 1 - 1 1 .
The C o u r t o f C r i m i n a l A p p e a l s r e v e r s e d t h e
t r i a l
c o u r t ' s j u d g m e n t and r e n d e r e d a j u d g m e n t i n t h e
d e f e n d a n t ' s
f a v o r ,
s t a t i n g ,
i n p e r t i n e n t
p a r t :
" [ S e c t i o n
1 3 A - 1 1 - 1 1 , A l a . Code 1975,]
c l e a r l y
s t a t e s ,
'under
c i r c u m s t a n c e s i n w h i c h i t i s
l i k e l y
10
1081296
t o
c a u s e
... p u b l i c
i n c o n v e n i e n c e
o r a l a r m . ' The
c o m m e n t a r y
t o t h e above
s t a t u t e s
l e n d s
f u r t h e r
s u p p o r t
f o r a p p e l l a n t ' s
p o s i t i o n .
T h i s
s e c t i o n
' s e e k s t o c o v e r i n s t a n c e s i n
w h i c h a f a l s e r e p o r t i s
made t o p u b l i c
o f f i c i a l s
n o t e n g a g e d i n p o l i c e o r
f i r e
c o n t r o l
a c t i v i t i e s ,
f o r i n s t a n c e s ,
s c h o o l
a d m i n i s t r a t o r s ,
a i r l i n e
o f f i c i a l s ,
o r m a n a g e r s o f
p u b l i c b u i l d i n g s . The p r i m a r y p u r p o s e o f § 13A-11-11
i s t o p r o t e c t t h e p u b l i c
a g a i n s t
i n c o n v e n i e n c e
o r
a l a r m
Commentary t o § 1 3 A - 1 1 - 1 1 .
( E m p h a s i s
a d d e d ) .
B e c a u s e u n d e r t h e f a c t s o f t h i s c a s e
t h e r e
has
b e e n no v i o l a t i o n o f t h e s t a t u t e , we
w i l l n o t
a d d r e s s
t h e
i s s u e
o f
w h e t h e r
t h e
s t a t u t e
i s
u n c o n s t i t u t i o n a l b e c a u s e o f v a g u e n e s s .
" I n
t h e i n s t a n t
c a s e ,
i t i s t r u e
t h a t t h e
s e c u r i t y company p r o c e e d e d i m m e d i a t e l y t o t h e s c h o o l
t o
a p p r e h e n d
r e p o r t e d
d r u g
d e a l e r s .
However, any
r e p o r t
t o them
m i g h t
r e s u l t i n t h e i r
p r o c e e d i n g
i m m e d i a t e l y t o a l o c a t i o n r e q u i r i n g t h e i r
s e r v i c e s .
The
q u e s t i o n
h e r e i s w h e t h e r t h e p u b l i c h a s b e e n
i n c o n v e n i e n c e d .
The c a l l
t h a t t h e a p p e l l a n t made t o
t h e
s e c u r i t y company d i d
n o t l e a d t o t h e e v a c u a t i o n
o f a v e h i c l e o r a b u i l d i n g . T h i s
s t a t u t e
a d d r e s s e s
s i t u a t i o n s
s u c h
as where
someone
i n a
c r o w d e d
t h e a t e r
y e l l s
' f i r e , '
o r where someone
p u l l s t h e
f i r e
a l a r m
i n an
o f f i c e
b u i l d i n g .
Those
a r e
s i t u a t i o n s
where
t h e p u b l i c
a t
l a r g e
h a s
b e e n
i n c o n v e n i e n c e d .
From t h e f a c t s o f
t h i s
c a s e ,
we
c a n n o t s a y t h a t t h e p u b l i c was i n c o n v e n i e n c e d
as a
r e s u l t
o f t h e
a p p e l l a n t ' s
c o n d u c t .
We
do n o t
c o n s i d e r
t h a t
t h i s
s t a t u t e was i n t e n d e d t o a p p l y t o
f a c t s s u c h as t h o s e i n t h i s
c a s e . "
A v a n r e n r e n , 597 So. 2d a t 240-41
( f o o t n o t e
o m i t t e d ) .
I n t h e p r e s e n t
c a s e , t h e e s s e n c e o f t h e S t a t e ' s
a r g u m e n t
i s
t h a t t h e C o u r t o f C r i m i n a l A p p e a l s e r r e d by a p p l y i n g t h e
p l a i n l a n g u a g e o f t h e Commentary t o § 1 3 A - 1 1 - 1 1 , r a t h e r
t h a n
11
1081296
t h e
p l a i n l a n g u a g e
o f t h a t
s t a t u t e ,
i n r e v e r s i n g
t h e
t r i a l
c o u r t ' s
j u d g m e n t
as
t o
H i l e r ' s
c o n v i c t i o n
f o r
f a l s e l y
r e p o r t i n g
an i n c i d e n t .
We
a g r e e .
"The f u n d a m e n t a l r u l e o f s t a t u t o r y
c o n s t r u c t i o n
i s t o a s c e r t a i n and g i v e
e f f e c t t o t h e i n t e n t o f t h e
l e g i s l a t u r e
i n e n a c t i n g
t h e s t a t u t e . Words u s e d i n
a
s t a t u t e
must
be
g i v e n
t h e i r
n a t u r a l ,
p l a i n ,
o r d i n a r y ,
and commonly u n d e r s t o o d m e a n i n g , and where
p l a i n l a n g u a g e i s u s e d a c o u r t i s b o u n d t o i n t e r p r e t
t h a t
l a n g u a g e t o mean e x a c t l y what i t s a y s . I f t h e
l a n g u a g e o f t h e s t a t u t e
i s u n a m b i g u o u s ,
t h e n
t h e r e
i s no room f o r j u d i c i a l c o n s t r u c t i o n
and t h e c l e a r l y
e x p r e s s e d
i n t e n t
o f t h e
l e g i s l a t u r e must be
g i v e n
e f f e c t . "
IMED C o r p . v. S y s t e m s Eng'g A s s o c s . C o r p . , 602 So. 2d 344,
346
( A l a .
1992)
( c i t i n g
T u s c a l o o s a
C o u n t y
Comm'n
v.
D e p u t y
S h e r i f f s '
A s s ' n
o f T u s c a l o o s a C o u n t y ,
589
So.
2d 687 ( A l a .
1991)
( e m p h a s i s a d d e d ) ) .
S i m p l y
p u t ,
t h e
p l a i n
l a n g u a g e
o f
§
13A-11-11
i s
u n a m b i g u o u s ;
i t p r o v i d e s no e x c e p t i o n f o r p e r s o n s who
f a l s e l y
r e p o r t
an
i n c i d e n t
t o p u b l i c
o f f i c i a l s
who
a r e e n g a g e d
i n
p o l i c e o r f i r e - c o n t r o l a c t i v i t i e s .
A l t h o u g h t h e Commentary t o
§ 13A-11-11 p u r p o r t s t o c r e a t e s u c h an e x c e p t i o n ,
t h e l a n g u a g e
o f t h e Commentary does n o t o v e r r i d e
t h e p l a i n l a n g u a g e o f t h e
s t a t u t e .
See
S h e f f i e l d v.
S t a t e ,
7
08
So.
2d 8
99,
900
n.2
( A l a . C r i m . App. 1997)
("The c o m m e n t a r y does n o t o v e r r i d e
t h e
12
1081296
f o r m and m e a n i n g o f t h e s t a t u t o r y l a n g u a g e , when v i e w e d i n
l i g h t o f e s t a b l i s h e d
p r i n c i p l e s o f s t a t u t o r y
c o n s t r u c t i o n . "
( q u o t i n g
H a w k i n s v. S t a t e , 54
9 So. 2d 552, 560 ( A l a . C r i m .
App. 1989) (Bowen, J . ,
c o n c u r r i n g ) ,
c i t i n g i n t u r n
S u t h e r l a n d
S t a t u t o r y
C o n s t r u c t i o n § 4
5 . 0 7 ) ) ; s e e a l s o Ex p a r t e E d w a r d s ,
816 So. 2d 98, 102 n.3 ( A l a .
2001) ("Our c o n s i d e r a t i o n o f t h e
c o m m e n t a r y ... i s t e m p e r e d
b y § 1 - 1 - 1 4 ( b ) , A l a .
Code 1975,
w h i c h
s t a t e s
t h a t
' [ a ] l l
h i s t o r i c a l
c i t a t i o n s and n o t e s s e t
o u t i n t h i s
Code a r e g i v e n
f o r t h e p u r p o s e
o f c o n v e n i e n t
r e f e r e n c e , and do n o t c o n s t i t u t e p a r t o f t h e l a w . ' " ) ;
C o l e m a n
v. S t a t e , 565 So. 2d 685, 687 ( A l a . 1
990) ("'[A] commentary t o
a s t a t u t e , w h i l e o f some p e r s u a s i v e
v a l u e , i s
n o t b i n d i n g upon
t h e c o u r t s . ' "
( q u o t i n g H e r n d o n v. S t a t e , 563 So. 2d 1065, 1068
( A l a .
1 9 9 0 ) ) ) .
F u r t h e r m o r e , as n o t e d by t h e S t a t e , h a d t h e l e g i s l a t u r e
i n t e n d e d t o e x c l u d e f r o m t h e p u r v i e w o f § 13A-11-11
i n s t a n c e s
i n w h i c h a f a l s e r e p o r t i s made t o p u b l i c
o f f i c i a l s who a r e
e n g a g e d i n p o l i c e o r f i r e - c o n t r o l
a c t i v i t i e s , i t c o u l d
h a v e
i n c l u d e d e x p r e s s l a n g u a g e t o t h a t e f f e c t i n t h e s t a t u t e .
The
l e g i s l a t u r e , h o w e v e r , d i d n o t do s o , and t h i s C o u r t may n o t
r e a d
i n t o
t h e
s t a t u t e
l a n g u a g e
t h e
l e g i s l a t u r e d i d n o t
13
1081296
i n c l u d e .
See
C i t y o f P i n s o n v.
U t i l i t i e s Bd.
o f O n e o n t a ,
986
So.
2d 367,
373
( A l a . 2007)
( " ' I t i s n o t p r o p e r f o r a c o u r t
t o
r e a d i n t o t h e
s t a t u t e s o m e t h i n g w h i c h t h e
l e g i s l a t u r e d i d
n o t
i n c l u d e
a l t h o u g h
i t c o u l d
h a v e
e a s i l y done
s o . ' "
( q u o t i n g
Noonan v. E a s t - W e s t B e l t l i n e ,
I n c . ,
487
So.
2d 237,
239
( A l a .
1 98 6 ) ) ) ; Ware v.
Timmons,
954
So.
2d
545,
556
( A l a .
200 6)
("[W]e p r e s u m e
' t h a t t h e
l e g i s l a t u r e does n o t
i n t e n d
t o make
any
a l t e r a t i o n
i n
t h e
l a w
b e y o n d
what
i t
e x p l i c i t l y
d e c l a r e s . ' "
( q u o t i n g Duncan v. R u d u l p h , 245
A l a . 175,
176,
16
So.
2d
313,
314
( 1 9 4 4 ) ) ) .
I t
i s e v i d e n t
f r o m a r e a d i n g
o f t h e e x c e r p t
q u o t e d above
f r o m A v a n r e n r e n t h a t t h e C o u r t o f C r i m i n a l A p p e a l s
c o n s i d e r e d
b o t h
t h e
s t a t u t e ,
§ 1 3 A - 1 1 - 1 1 ,
and
t h e
Commentary
t o
t h a t
s t a t u t e i n r e v e r s i n g t h e
t r i a l
c o u r t ' s j u d g m e n t i n t h a t
c a s e .
I n t h e p r e s e n t c a s e , h o w e v e r , t h e C o u r t o f C r i m i n a l
A p p e a l s ,
f o r
a l l t h a t a p p e a r s f r o m i t s o p i n i o n ,
r e l i e d
s o l e l y on
t h e
Commentary
t o
§
13A-11-11
i n
r e v e r s i n g
t h e
t r i a l
c o u r t ' s
j u d g m e n t
as
t o
H i l e r ' s c o n v i c t i o n
f o r
f a l s e l y
r e p o r t i n g
an
i n c i d e n t .
See
H i l e r ,
So.
3d a t
( " T h e r e f o r e , b a s e d
on
t h e p l a i n l a n g u a g e o f t h e Commentary t o § 1 3 A - 1 1 - 1 1 , A l a . Code
1975,
we
c o n c l u d e t h a t
t h e
s t a t u t e was
n o t
i n t e n d e d
t o
a p p l y
14
1081296
t o f a c t s s u c h as t h o s e i n t h i s c a s e . " ) .
B e c a u s e t h e C o u r t o f
C r i m i n a l A p p e a l s a p p l i e d t h e p l a i n l a n g u a g e o f t h e Commentary
t o § 13A-11-11 r a t h e r t h a n t h e p l a i n l a n g u a g e o f t h e s t a t u t e
i t s e l f i n
r e a c h i n g i t s d e c i s i o n , we c o n c l u d e t h a t t h e C o u r t o f
C r i m i n a l A p p e a l s e r r e d i n
r e v e r s i n g t h e t r i a l c o u r t ' s j u d g m e n t
and
r e n d e r i n g a
j u d g m e n t
i n f a v o r
o f
H i l e r
as t o t h e
c o n v i c t i o n f o r
f a l s e l y r e p o r t i n g an i n c i d e n t .
See S h e f f i e l d ,
s u p r a .
C o n c l u s i o n
F o r t h e a b o v e - s t a t e d
r e a s o n s ,
i n s o f a r
as i t r e v e r s e s
H i l e r ' s
c o n v i c t i o n
f o r f a l s e l y
r e p o r t i n g
an
i n c i d e n t a n d
r e n d e r s a j u d g m e n t f o r H i l e r , t h e j u d g m e n t o f t h e C o u r t o f
C r i m i n a l A p p e a l s i s r e v e r s e d , a n d t h e c a s e i s remanded f o r
t h a t c o u r t t o a d d r e s s t h e a r g u m e n t s i t d i d n o t a d d r e s s when
i t
h e l d t h a t , b a s e d on t h e p l a i n l a n g u a g e o f t h e Commentary t o §
1 3 A - 1 1 - 1 1 , A l a .
Code 1 9 7 5 , t h e s t a t u t e was n o t i n t e n d e d t o
a p p l y t o f a c t s s u c h as t h o s e i n t h i s c a s e .
So. 3d a t
n.2.
REVERSED AND REMANDED WITH DIRECTIONS.
Cobb, C . J . ,
a n d L y o n s ,
W o o d a l l ,
S t u a r t ,
B o l i n ,
P a r k e r ,
M u r d o c k , a n d Shaw, J J . , c o n c u r .
15 | December 4, 2009 |
2f0760dd-1a96-4ab2-8880-5ae6d45fc579 | Ex parte Alabama Peace Officers' Standards and Training Commission and R. Alan Benefield, individually and in his capacity as executive secretary of the Alabama Peace Officers' Standards and Training Commission. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Doby Vines and Joey Vines v. R. Alan Benefield et al.) | N/A | 1051667 | Alabama | Alabama Supreme Court | R e l : 09/30/2009
Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e p u b l i c a t i o n i n
t h e
advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e
Reporter of
Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741 ((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may
be
made b e f o r e
t h e o p i n i o n i s p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2009
1051667
Ex p a r t e Alabama Peace O f f i c e r s ' Standards and T r a i n i n g
Commission and R. A l a n B e n e f i e l d , i n d i v i d u a l l y and i n h i s
c a p a c i t y as e x e c u t i v e s e c r e t a r y o f the
Alabama Peace
O f f i c e r s ' Standards and T r a i n i n g Commission
PETITION FOR WRIT OF MANDAMUS
( I n r e :
Doby Vines and Joey Vines
v.
R. A l a n B e n e f i e l d e t
a l . )
(Montgomery C i r c u i t Court, CV-05-23)
PARKER,
J u s t i c e .
The
A l a b a m a
P e a c e
O f f i c e r s '
S t a n d a r d s
a n d
T r a i n i n g
C o m m i s s i o n ("APOSTC") a n d i t s
e x e c u t i v e
s e c r e t a r y ,
C h i e f R.
A l a n
B e n e f i e l d ,
a r e d e f e n d a n t s
i n an
a c t i o n
b r o u g h t b y
1051667
b r o t h e r s Doby V i n e s and J o e y V i n e s , f o r m e r p a r t - t i m e e m p l o y e e s
a t
S o u t h w e s t
A l a b a m a
P o l i c e Academy ("SWAPA"). I n t h e
t r i a l
c o u r t , APOSTC and B e n e f i e l d
f i l e d
a m o t i o n
f o r a summary
j u d g m e n t , a s s e r t i n g t h a t t h e y were immune f r o m
l i a b i l i t y . The
t r i a l
c o u r t
d e n i e d
t h e m o t i o n .
APOSTC
and B e n e f i e l d
now
p e t i t i o n
t h i s
C o u r t f o r a w r i t
o f mandamus
d i r e c t i n g t h e
M o n t g o m e r y
C i r c u i t
C o u r t t o d i s m i s s w i t h
p r e j u d i c e
a l l
t h e
c l a i m s a g a i n s t them. We g r a n t t h e p e t i t i o n .
I . B a c k g r o u n d and P r o c e d u r a l P o s t u r e
T h i s
c a s e
a r i s e s
f r o m t h e t e r m i n a t i o n on J a n u a r y 2 4 ,
2 0 0 3 , o f t h e V i n e s e s ' p a r t - t i m e e m p l o y m e n t w i t h SWAPA, w h i c h
r e s u l t e d f r o m an APOSTC d i r e c t i v e a u t h o r i z i n g t h e d i s m i s s a l o f
a l l SWAPA p a r t - t i m e e m p l o y e e s .
The V i n e s e s
f i l e d a c o m p l a i n t
i n t h e M o n t g o m e r y C i r c u i t C o u r t on J a n u a r y 5, 2 0 0 5 , n a m i n g as
d e f e n d a n t s
B e n e f i e l d and G a r y B r a n c h , p r e s i d e n t o f F a u l k n e r
S t a t e Community
C o l l e g e ,
1 i n t h e i r
i n d i v i d u a l and
o f f i c i a l
c a p a c i t i e s ,
and APOSTC. The V i n e s e s
s o u g h t
r e s t o r a t i o n o f
t h e i r e m p l o y m e n t , wages, and b e n e f i t s , and b o t h
c o m p e n s a t o r y
1 B r a n c h was s u e d i n
h i s
c a p a c i t y as p r e s i d e n t o f F a u l k n e r
S t a t e
Community
C o l l e g e ,
w h i c h
p r o v i d e d
c l a s s r o o m
s p a c e ,
f a c i l i t i e s - r e l a t e d s e r v i c e s , a n d p a y r o l l s e r v i c e s t o SWAPA. I n
r e s p o n s e t o B r a n c h ' s
p e t i t i o n ,
t h i s
C o u r t
i s s u e d a w r i t o f
mandamus d i r e c t i n g t h e d i s m i s s a l o f a l l
c l a i m s a g a i n s t B r a n c h .
See Ex p a r t e B r a n c h , 980 So. 2d 981 ( A l a . 2 0 0 7 ) .
2
1051667
and
p u n i t i v e
damages
f r o m
B e n e f i e l d
i n h i s
i n d i v i d u a l
c a p a c i t y ,
a l l e g i n g
t h a t he and B r a n c h h a d c o n s p i r e d
among
t h e m s e l v e s t o d e n y t h e V i n e s e s t h e i r e m p l o y m e n t , wages, and
b e n e f i t s .
They
a l s o
c l a i m
t h a t
APOSTC
d i d n o t have t h e
a u t h o r i t y t o o r d e r t h e i r d i s m i s s a l . The c l a i m s a g a i n s t B r a n c h
were s u b s e q u e n t l y d i s m i s s e d . See s u p r a n o t e 1.
On June 9, 2006, APOSTC and B e n e f i e l d
f i l e d a m o t i o n f o r
a summary j u d g m e n t ,
a s s e r t i n g t h e d e f e n s e o f i m m u n i t y .
The
t r i a l
c o u r t d i d n o t a d d r e s s t h e i s s u e o f i m m u n i t y when i t
e n t e r e d i t s A u g u s t 8, 2006, j u d g m e n t d e n y i n g
t h e i r
summary-
j u d g m e n t m o t i o n . APOSTC and B e n e f i e l d now s e e k r e v i e w o f t h e
d e n i a l o f t h e m o t i o n f o r a summary
j u d g m e n t .
I I .
S t a n d a r d o f R e v i e w
" ' W h i l e t h e g e n e r a l r u l e i s t h a t t h e d e n i a l o f
a m o t i o n f o r
summary j u d g m e n t i s n o t r e v i e w a b l e ,
t h e
e x c e p t i o n i s t h a t t h e d e n i a l o f a m o t i o n f o r summary
j u d g m e n t
g r o u n d e d
on
a
c l a i m
o f
i m m u n i t y
i s
r e v i e w a b l e by
p e t i t i o n
f o r w r i t
o f mandamus.'
Ex
p a r t e R i z k , 791 So. 2d 911, 912 ( A l a . 2 0 0 0 ) . A w r i t
o f mandamus i s an
e x t r a o r d i n a r y
remedy
a v a i l a b l e
o n l y when t h e r e i s :
'(1) a c l e a r
l e g a l
r i g h t t o t h e
o r d e r
s o u g h t ;
(2) an
i m p e r a t i v e d u t y
upon
t h e
r e s p o n d e n t t o p e r f o r m , a c c o m p a n i e d b y a r e f u s a l t o
do s o ; (3) t h e l a c k o f a n o t h e r a d e q u a t e r e m e d y ; and
(4) t h e p r o p e r l y i n v o k e d j u r i s d i c t i o n o f t h e c o u r t . '
Ex
p a r t e BOC
G r o u p ,
I n c . , 823 So. 2d 1270
, 1272
( A l a .
2 0 0 1 ) . "
Ex p a r t e N a l l , 879 So. 2d 5 4 1 , 543 ( A l a . 2 0 0 3 ) .
3
1051667
" T h i s
c a s e
i s b e f o r e
us
on
a p e t i t i o n
f o r
t h e
w r i t o f mandamus. The
p e t i t i o n
c i t e s Ex p a r t e
R i z k ,
791
So.
2d 911,
912
( A l a . 2 0 0 0 ) , f o r t h e
p r o p o s i t i o n
t h a t
' [ w ] h i l e t h e g e n e r a l
r u l e i s t h a t t h e d e n i a l o f
a m o t i o n f o r summary j u d g m e n t i s n o t r e v i e w a b l e ,
t h e
e x c e p t i o n
i s t h a t t h e d e n i a l o f a m o t i o n f o r summary
j u d g m e n t
g r o u n d e d
on
a
c l a i m
o f
i m m u n i t y
i s
r e v i e w a b l e
by
p e t i t i o n
f o r
w r i t
o f mandamus.'
We
c o n f i n e
o u r
i n t e r l o c u t o r y r e v i e w
t o m a t t e r s germane
t o
t h e
i s s u e
o f i m m u n i t y . M a t t e r s
r e l e v a n t
t o
t h e
m e r i t s
o f t h e u n d e r l y i n g
t o r t c l a i m , s u c h as
i s s u e s
o f
d u t y
o r
c a u s a t i o n ,
a r e
b e s t
l e f t
t o
t h e
t r i a l
c o u r t
....
See
Ryan
v.
H a y e s ,
831
So.
2d
21,
32
( A l a .
2002)
( r e c o g n i z i n g
t h a t
t h e
d e f e n s e
o f
i m m u n i t y s h o u l d ,
as a g e n e r a l
r u l e , be d e t e r m i n e d
as
a t h r e s h o l d i s s u e , t h e r e b y
a v o i d i n g
' d e v e l o p m e n t
o f
u n n e c e s s a r i l y
r e s t r i c t e d
p r i n c i p l e s
o f
t o r t
l a w
d r i v e n
by
t h e
n e e d
t o
accommodate
p r i n c i p l e s
o f
S t a t e - a g e n t
i m m u n i t y ' ) . "
Ex p a r t e Hudson , 866
So.
2d
1115,
1120
( A l a . 2 0 0 3 ) .
I I I .
A n a l y s i s
APOSTC and
B e n e f i e l d ' s i m m u n i t y d e f e n s e was
p r e s e n t e d
i n
t h e
b r i e f
i n s u p p o r t
o f
t h e m o t i o n
f o r a summary j u d g m e n t .
The
o r d e r e n t e r e d by t h e
t r i a l c o u r t d e n y i n g t h e m o t i o n
f a i l e d
t o
a d d r e s s
t h e
i m m u n i t y
i s s u e .
The
p e t i t i o n
f o r
w r i t
o f
mandamus a s k s
t h i s
C o u r t
t o
r e v i e w
w h e t h e r
t h e
t r i a l
c o u r t
e r r e d i n d e n y i n g APOSTC and
B e n e f i e l d ' s m o t i o n f o r a summary
j u d g m e n t i n w h i c h t h e y a s s e r t e d i m m u n i t y as a d e f e n s e .
A.
S t a t e
I m m u n i t y
S e c t i o n 14, A l a . C o n s t . 1901,
s t a t e s " [ t ] h a t t h e S t a t e
o f
4
1051667
A l a b a m a s h a l l n e v e r be made a d e f e n d a n t i n any c o u r t o f l a w o r
e q u i t y . " T h i s C o u r t has r u l e d t h a t " [ a ] s u i t
a g a i n s t a
S t a t e
a g e n c y , o r a g a i n s t S t a t e a g e n t s i n t h e i r
o f f i c i a l
c a p a c i t i e s ,
i s a s u i t a g a i n s t t h e S t a t e .
...
S t a t e a g e n t s e n j o y
a b s o l u t e
i m m u n i t y f r o m s u i t i n t h e i r
o f f i c i a l
c a p a c i t i e s . " B u r g o o n
v.
A l a b a m a S t a t e Dep't o f Human R e s . ,
835 So. 2d 131, 133 ( A l a .
2 0 0 2 ) .
1. APOSTC
S e c t i o n
3 6 - 2 1 - 4 1 , A l a . Code
1975,
c r e a t e s
t h e
A l a b a m a
P e a c e
O f f i c e r s '
S t a n d a r d s
and
T r a i n i n g
C o m m i s s i o n .
I t i s
u n d i s p u t e d
t h a t
t h e
s t a t u t o r i l y
c r e a t e d
c o m m i s s i o n
i s
an
a g e n c y
o f t h e S t a t e o f A l a b a m a . A c c o r d i n g l y ,
a s u i t
a g a i n s t
APOSTC i s p r o h i b i t e d as a s u i t
a g a i n s t t h e S t a t e . The
t r i a l
c o u r t ,
t h e r e f o r e , e r r e d i n d e n y i n g t h e m o t i o n f o r a summary
j u d g m e n t i n f a v o r o f APOSTC. B u r g o o n ,
835
So. 2d a t 133
("A
t r i a l
c o u r t must d i s m i s s an a c t i o n a g a i n s t a S t a t e a g e n c y
o r
a g a i n s t a S t a t e a g e n t
a c t i n g i n an
o f f i c i a l
c a p a c i t y a t t h e
e a r l i e s t
o p p o r t u n i t y . " ) .
2. B e n e f i e l d i n h i s o f f i c i a l
c a p a c i t y
The
V i n e s e s '
demands
f o r
p r o s p e c t i v e
r e s t o r a t i o n
o f
e m p l o y m e n t , wages, and b e n e f i t s d e p e n d upon t h e o f f i c i a l
s c o p e
5
1051667
o f B e n e f i e l d ' s a u t h o r i t y .
I n t h e i r o p p o s i t i o n t o B e n e f i e l d ' s
m o t i o n
f o r a
summary
j u d g m e n t ,
t h e
V i n e s e s
a t t a c h e d
B e n e f i e l d ' s
a f f i d a v i t , i n w h i c h he s t a t e s : "The o n l y
a c t i o n
I t o o k w i t h r e s p e c t t o t h e t e r m i n a t i o n o f J o e y and Doby V i n e s
was t o c o m m u n i c a t e t o F a u l k n e r
S t a t e
U n i v e r s i t y
[
2
] APOSTC's
d e c i s i o n t o t e r m i n a t e
them, a n d t h i s
a c t i o n was t a k e n i n my
o f f i c i a l
c a p a c i t y as E x e c u t i v e S e c r e t a r y o f APOSTC." The
t r i a l
c o u r t
e r r e d i n n o t e n t e r i n g a summary j u d g m e n t on t h e c l a i m s
a g a i n s t
B e n e f i e l d i n h i s o f f i c i a l
c a p a c i t y b a s e d upon
S t a t e
i m m u n i t y .
See B u r g o o n ,
s u p r a .
B. S t a t e - A g e n t I m m u n i t y
A S t a t e a g e n t does n o t e n j o y a b s o l u t e i m m u n i t y when a c t i n g
i n
h i s
i n d i v i d u a l
c a p a c i t y .
T h i s
C o u r t
h a s
r e c o g n i z e d
l i m i t a t i o n s on S t a t e - a g e n t
i m m u n i t y . I n Ex p a r t e Cranman, 792
So. 2d 392, 405 ( A l a . 2 0 0 0 ) , a p l u r a l i t y o f t h e C o u r t r e s t a t e d
t h e l a w o f S t a t e - a g e n t
i m m u n i t y :
"A
S t a t e
a g e n t
s h a l l
be
immune
f r o m
c i v i l
l i a b i l i t y
i n h i s o r h e r p e r s o n a l
c a p a c i t y when t h e
c o n d u c t made t h e b a s i s o f t h e c l a i m a g a i n s t t h e a g e n t
i s b a s e d upon t h e a g e n t ' s
2 " U n d e r
a
' j o i n t - u s e
a g r e e m e n t '
...
F a u l k n e r
S t a t e
[Community C o l l e g e ]
a l l o w e d SWAPA t o o p e r a t e on i t s p r o p e r t y ,
p r o v i d e d c l a s s r o o m
s p a c e and f a c i l i t i e s - r e l a t e d s e r v i c e s , and
p r o v i d e d
p a y r o l l s e r v i c e s t o SWAPA." Ex p a r t e B r a n c h , 980 So.
2d a t 983.
6
1051667
" ( 2 )
e x e r c i s i n g h i s o r h e r j u d g m e n t
i n t h e
a d m i n i s t r a t i o n
o f
a
d e p a r t m e n t
o r
a g e n c y
o f
g o v e r n m e n t , i n c l u d i n g , b u t n o t l i m i t e d t o , e x a m p l e s
s u c h a s :
"
;
"(b)
a l l o c a t i n g
r e s o u r c e s ;
"
;
"(d)
h i r i n g ,
f i r i n g ,
t r a n s f e r r i n g , a s s i g n i n g , o r
s u p e r v i s i n g p e r s o n n e l ; o r
" N o t w i t h s t a n d i n g
a n y t h i n g
t o t h e c o n t r a r y
i n t h e
f o r e g o i n g s t a t e m e n t o f t h e r u l e , a S t a t e a g e n t
s h a l l
n o t be immune
f r o m
c i v i l
l i a b i l i t y
i n h i s o r h e r
p e r s o n a l
c a p a c i t y
" ( 2 )
when
t h e
S t a t e
a g e n t
a c t s
w i l l f u l l y ,
m a l i c i o u s l y ,
f r a u d u l e n t l y , i n b a d f a i t h ,
b e y o n d h i s
o r h e r a u t h o r i t y , o r u n d e r a m i s t a k e n i n t e r p r e t a t i o n
o f t h e
l a w . "
I n Ex p a r t e
B u t t s , 775 So. 2d 173 ( A l a . 2 0 0 0 ) , a m a j o r i t y o f
t h i s
C o u r t
a d o p t e d
t h e Cranman
r e s t a t e m e n t
o f t h e
r u l e
g o v e r n i n g
S t a t e - a g e n t
i m m u n i t y .
Thus,
S t a t e - a g e n t
i m m u n i t y
"'does
n o t
p r o t e c t
S t a t e
o f f i c e r s
a n d
e m p l o y e e s
u n d e r
c i r c u m s t a n c e s
where
a
p l a i n t i f f
a l l e g e s
t h a t
t h e y
a c t e d
" w i l l f u l l y ,
m a l i c i o u s l y ,
i l l e g a l l y ,
f r a u d u l e n t l y ,
i n b a d
7
1051667
f a i t h ,
b e y o n d
[ t h e i r ]
a u t h o r i t y ,
o r
u n d e r
a
m i s t a k e n
i n t e r p r e t a t i o n o f t h e l a w . " P h i l l i p s
[ v . Thomas, 555 So. 2d
81, 83 ( A l a . 1 9 8 9 ) ] . ' " Ex p a r t e Town o f L o w n d e s b o r o ,
950 So.
2d 1203, 1209 ( A l a . 2
0
0
6 ) ( q u o t i n g Ex p a r t e A l a b a m a Dep't o f
T r a n s p . , 764 So. 2d 1263, 1268 ( A l a . 2 0 0 0 ) ) .
More t h a n mere a l l e g a t i o n i s r e q u i r e d , h o w e v e r , and t h i s
C o u r t
has
p r e s c r i b e d
t h e
p r o c e d u r e s
t o
d e t e r m i n e
t h e
a p p l i c a b i l i t y
o f t h e l i m i t a t i o n s on S t a t e - a g e n t i m m u n i t y u n d e r
a g i v e n s e t o f f a c t s when s u c h m i s c o n d u c t i s a l l e g e d :
" T h i s C o u r t h a s e s t a b l i s h e d a
' b u r d e n - s h i f t i n g '
p r o c e s s when a p a r t y
r a i s e s t h e d e f e n s e o f
S t a t e -
a g e n t
i m m u n i t y .
G i a m b r o n e v . D o u g l a s ,
874 So. 2d
1046, 1052 ( A l a . 2 0 0 3 ) . I n o r d e r t o c l a i m S t a t e - a g e n t
i m m u n i t y ,
a
S t a t e
a g e n t
b e a r s
t h e
b u r d e n
o f
d e m o n s t r a t i n g t h a t t h e p l a i n t i f f ' s
c l a i m s a r i s e f r o m
a
f u n c t i o n
t h a t
w o u l d
e n t i t l e
t h e S t a t e
a g e n t t o
i m m u n i t y .
G i a m b r o n e ,
874 So. 2d a t 1052
; Ex
p a r t e
Wood, 852 So. 2d 705, 709 ( A l a . 2 0 0 2 ) . I f t h e S t a t e
a g e n t makes s u c h a s h o w i n g , t h e b u r d e n t h e n s h i f t s t o
t h e
p l a i n t i f f
t o show
t h a t
t h e S t a t e
a g e n t
a c t e d
w i l l f u l l y ,
m a l i c i o u s l y ,
f r a u d u l e n t l y , i n b a d
f a i t h ,
o r b e y o n d h i s
o r h e r a u t h o r i t y . G i a m b r o n e , 874 So. 2d
a t 1052; Wood, 852 So. 2d a t 709; Ex p a r t e D a v i s , 721
So. 2d 685, 689 ( A l a .
1
9 9 8 ) .
'A S t a t e
a g e n t
a c t s
b e y o n d
a u t h o r i t y and i s t h e r e f o r e n o t immune when he
o r
she
" f a i l [ s ]
t o d i s c h a r g e d u t i e s
p u r s u a n t t o
d e t a i l e d
r u l e s o r r e g u l a t i o n s ,
s u c h as t h o s e
s t a t e d
on
a
c h e c k l i s t . " '
G i a m b r o n e ,
874 So. 2d a t 1052
( q u o t i n g Ex p a r t e
B u t t s , 775 So. 2d 173, 178
( A l a .
2
0
0 0 ) ) . "
Ex
p a r t e
E s t a t e
o f R e y n o l d s ,
94
6 So. 2d 450 ,
452 ( A l a .
8
1051667
2 0 0 6 ) ( e m p h a s i s a d d e d ) .
I n t h e i r r e s p o n s e i n o p p o s i t i o n t o APOSTC and
B e n e f i e l d ' s
m o t i o n f o r a summary j u d g m e n t , t h e V i n e s e s a r g u e d t h a t
t h e r e
e x i s t e d " g e n u i n e i s s u e s o f m a t e r i a l f a c t s u c h t h a t j u d g m e n t i n
f a v o r
o f
[APOSTC
and
B e n e f i e l d ]
i s n o t
a p p r o p r i a t e
a t
t h i s
t i m e . "
As
d i s c u s s e d
a b o v e ,
t h e
d e f e n s e
o f
i m m u n i t y
may
be
r e b u t t e d by a s h o w i n g t h a t t h e S t a t e a g e n t ' s c o n d u c t meets
t h e
e x c e p t i o n s
t o S t a t e - a g e n t
i m m u n i t y as p r o v i d e d by Cranman.
The
V i n e s e s
a d d r e s s e d
t h e
i m m u n i t y
i s s u e
by
a s s e r t i n g
t h a t
" B e n e f i e l d
...
i n
[ h i s ]
i n d i v i d u a l
c a p a c i t [ y
has]
a c t e d
w i l l f u l l y ,
i n
b a d
f a i t h ,
b e y o n d
[ h i s ]
s c o p e
o f
a u t h o r i t y
a n d / o r u n d e r a m i s t a k e n i n t e r p r e t a t i o n o f
l a w . "
The
demands
f o r
c o m p e n s a t o r y
and
p u n i t i v e damages
f o r
c e r t a i n
o f
B e n e f i e l d ' s
c o n d u c t
i n
h i s
i n d i v i d u a l
c a p a c i t y
r e q u i r e more t h a n
t h e mere c o n c l u s o r y
s t a t e m e n t s
o f f e r e d
by
t h e
V i n e s e s .
" I n
o u r
r e v i e w
o f
[ t h e
p l a i n t i f f ' s ]
a f f i d a v i t ,
we
a r e m i n d f u l
t h a t we
s h o u l d v i e w a l l f a c t s
s t a t e d
i n h e r
a f f i d a v i t most f a v o r a b l y t o t h e p l a i n t i f f ,
b u t
we
a r e
a l s o m i n d f u l
t h a t '[s]ummary j u d g m e n t i s
n o t
p r e v e n t e d
by
" c o n c l u s o r y
a l l e g a t i o n s "
o r
" s p e c u l a t i o n " t h a t a f a c t i s s u e e x i s t s . B a r e a r g u m e n t
o r c o n j e c t u r e
w i l l n o t
s a t i s f y a [ n o n m o v a n t ' s ] b u r d e n
t o o f f e r f a c t s t o d e f e a t
t h e m o t i o n . ' R i g g s v.
B e l l ,
564
So.
2d 882,
885
( A l a . 1990)
( c i t a t i o n s
o m i t t e d ) .
T h i s C o u r t has
r e i t e r a t e d t h i s
p r i n c i p l e
f r e q u e n t l y
9
1051667
s i n c e
R i g g s ,
c i t i n g
t h a t c a s e : M c G a r r y v.
F l o u r n o y ,
624
So.
2d 1359,
1361
( A l a . 1 9 9 3 ) ; Crowne I n v s . ,
I n c .
v. B r y a n t ,
638
So.
2d
873,
878
( A l a . 1994)
( ' [ M ] e r e
c o n c l u s o r y
a l l e g a t i o n s
o r
s p e c u l a t i o n
t h a t
f a c t
i s s u e s
e x i s t
w i l l
n o t
d e f e a t
a p r o p e r l y
s u p p o r t e d
summary
j u d g m e n t
m o t i o n ,
and
b a r e
a r g u m e n t
o r
c o n j e c t u r e
d o e s
n o t
s a t i s f y
t h e
n o n m o v i n g
p a r t y ' s
b u r d e n
t o
o f f e r
f a c t s
o r
t o
d e f e a t
t h e
m o t i o n . ' ) ;
B l a c k b u r n v.
S t a t e
Farm A u t o .
I n s .
Co.,
652
So.
2d
1140,
1142
( A l a . 1 9 9 4 ) ; H u f f v.
U n i t e d
I n s .
Co.
o f
A m e r i c a ,
674
So.
2d
21,
24
( A l a . 1 9 9 5 ) ; and
R e i d
v.
J e f f e r s o n C o u n t y ,
672
So.
2d
1285,
1290
( A l a .
1995)
( ' [ t h e n o n m o v a n t ' s ] s t a t e m e n t s a r e c o n c l u s o r y .
Thus,
t h o s e
s t a t e m e n t s
do
n o t
c o n s t i t u t e
s u b s t a n t i a l
e v i d e n c e
and,
t h e r e f o r e ,
do
n o t
w a r r a n t
s u b m i t t i n g
[ h i s ]
c l a i m t o t h e
j u r y ' ) . T h i s C o u r t has
s t a t e d :
'[A
p a r t y
o p p o s i n g
a
summary-judgment
m o t i o n ]
must
p r e s e n t
f a c t s ,
n o t
m e r e l y
i n f e r e n c e s
b a s e d
upon
b e l i e f ,
t h a t c o u n t e r f a c t s o f f e r e d i n s u p p o r t o f
t h e
m o t i o n . ' D a v i s v.
F o r d M o t o r C r e d i t Co.,
599
So.
2d
1123,
1125
( A l a . 1 9 9 2 ) . "
Brown ex
r e l . Brown v.
S t .
V i n c e n t ' s
Hosp.,
899
So.
2d
227,
238-39
( A l a . 2 0 0 4 ) . The
V i n e s e s had
t h e b u r d e n o f
p r e s e n t i n g
e v i d e n c e
i n d i c a t i n g
t h a t
B e n e f i e l d
a c t e d
w i l l f u l l y ,
m a l i c i o u s l y ,
f r a u d u l e n t l y ,
i n
b a d
f a i t h ,
o r
b e y o n d
h i s
a u t h o r i t y
when
he
p e r f o r m e d
t h e
d u t i e s
a s s o c i a t e d
w i t h
" h i r i n g ,
f i r i n g ,
t r a n s f e r r i n g ,
a s s i g n i n g ,
o r
s u p e r v i s i n g
p e r s o n n e l . "
Cranman,
792
So.
2d
a t
405.
The
V i n e s e s ,
w i t h
t h e i r
c o n c l u s o r y
a l l e g a t i o n s ,
f a i l e d
t o meet
t h e i r
b u r d e n .
T h e r e f o r e ,
t h e
t r i a l
c o u r t
s h o u l d have g r a n t e d t h e m o t i o n
f o r
a summary j u d g m e n t as t o B e n e f i e l d i n h i s i n d i v i d u a l c a p a c i t y
10
1051667
b a s e d upon
t h e
p r i m a
f a c i e s h o w i n g
he made
o f
S t a t e - a g e n t
i m m u n i t y .
M o r e o v e r ,
as
s t a t e d
p r e v i o u s l y ,
t h e
V i n e s e s
o f f e r e d
no
e v i d e n c e i n d i c a t i n g t h a t B e n e f i e l d was more t h a n a mere a g e n t
f o r
APOSTC, t h e
e n t i t y t h a t
d i r e c t e d
t h e
t e r m i n a t i o n
o f
t h e
V i n e s e s '
e m p l o y m e n t .
C o n s e q u e n t l y ,
t h e
V i n e s e s
h a v e
n o t
o f f e r e d
s u b s t a n t i a l e v i d e n c e
i n d i c a t i n g t h a t
B e n e f i e l d
a c t e d
w i l l f u l l y ,
i n
b a d
f a i t h ,
b e y o n d
h i s
a u t h o r i t y ,
o r
u n d e r
a
m i s t a k e n
i n t e r p r e t a t i o n o f
l a w when he
r e p o r t e d
t h e
d e c i s i o n
o f APOSTC t o t e r m i n a t e
t h e employment o f
a l l SWAPA
p a r t - t i m e
e m p l o y e e s , i n c l u d i n g t h e
V i n e s e s .
IV.
C o n c l u s i o n
C o n s e q u e n t l y ,
t h e
p e t i t i o n
f o r
t h e
w r i t
o f mandamus
i s
g r a n t e d
and
t h e
w r i t
i s s u e d ;
t h e
t r i a l
c o u r t
i s d i r e c t e d
t o
d i s m i s s
t h e c l a i m s
a g a i n s t APOSTC and
a g a i n s t B e n e f i e l d i n h i s
o f f i c i a l c a p a c i t y , b e c a u s e , b a s e d on S t a t e i m m u n i t y , t h e
t r i a l
c o u r t
a c q u i r e d
no
s u b j e c t - m a t t e r
j u r i s d i c t i o n
o v e r them,
and
t o e n t e r
a summary j u d g m e n t as t o t h e c l a i m s
a g a i n s t
B e n e f i e l d
i n
h i s i n d i v i d u a l c a p a c i t y .
P E T I T I O N GRANTED; WRIT ISSUED.
Cobb,
C . J . ,
and
L y o n s ,
S t u a r t ,
S m i t h ,
B o l i n , and
Shaw,
J J . ,
c o n c u r .
W o o d a l l and M u r d o c k , J J . , c o n c u r i n t h e
r e s u l t .
11
1051667
MURDOCK, J u s t i c e
( c o n c u r r i n g i n t h e
r e s u l t ) .
I c o n c u r i n t h e r e s u l t .
See Ex p a r t e S a w y e r , 984 So. 2d
1100 ( A l a .
2007)
( M u r d o c k , J . , c o n c u r r i n g i n t h e
r e s u l t ) .
12 | September 30, 2009 |
b527a31c-bac8-46c7-9b3c-e2131e0066ca | Andrew Miller et al. v. Bob Riley et al. | N/A | 1080032 | Alabama | Alabama Supreme Court | REL: 10/30/2009
Notice: T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e
advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e
r e q u e s t e d t o n o t i f y t h e
Reporter of
Decisions,
Alabama
A p p e l l a t e
C o u r t s ,
300 D e x t e r Avenue, Montgomery, Alabama 36104-3741
((334)
2 2 9 - 0 6 4 9 ) , o f
any t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may be made
b e f o r e t h e
o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1080032
Andrew M i l l e r e t a l .
v.
Governor Bob R i l e y e t a l .
Appeal from Montgomery C i r c u i t
Court
(CV-08-1416)
SMITH,
J u s t i c e .
Andrew
M i l l e r a n d h i s s i b l i n g s ,
J o a n n e B r o w n ,
C u r t i s
M i l l e r ,
D a r y l
M i l l e r ,
E a r l
M i l l e r ,
L a r r y
M i l l e r ,
J a n i c e
W i l l i a m s , a n d M i c h a e l Y o u n g b l o o d ( h e r e i n a f t e r M i l l e r a n d h i s
s i b l i n g s
a r e s o m e t i m e s
r e f e r r e d t o c o l l e c t i v e l y
as " t h e
1080032
p l a i n t i f f s " ) ,
a p p e a l f r o m an
o r d e r
o f t h e M o n t g o m e r y
C i r c u i t
C o u r t d e n y i n g t h e i r m o t i o n s f o r a t e m p o r a r y r e s t r a i n i n g
o r d e r
and a p r e l i m i n a r y i n j u n c t i o n . We
a f f i r m t h e o r d e r i n p a r t
and
d i s m i s s
t h e a p p e a l
i n p a r t .
F a c t s
and
P r o c e d u r a l
H i s t o r y
On
S e p t e m b e r
4,
1986,
Andrew
M i l l e r
was
a r r e s t e d
i n
c o n n e c t i o n
w i t h a b u r g l a r y and
a r a p e t h a t o c c u r r e d
on A u g u s t
4,
1986;
M i l l e r was
15 y e a r s
o l d a t t h e t i m e o f t h e
o f f e n s e s .
T h a t same day
M i l l e r ' s
c a s e was
b r o u g h t b e f o r e
t h e j u v e n i l e
d i v i s i o n
o f
t h e
M o n t g o m e r y
C i r c u i t
C o u r t
( " t h e
j u v e n i l e
c o u r t " )
f o r
p r o s e c u t i o n .
The
M o n t g o m e r y
C o u n t y
D i s t r i c t
A t t o r n e y moved t h e j u v e n i l e c o u r t t o t r a n s f e r M i l l e r ' s c a s e t o
t h e
c r i m i n a l d i v i s i o n
o f t h e M o n t g o m e r y
C i r c u i t
C o u r t
( " t h e
t r i a l c o u r t " ) f o r p r o s e c u t i o n ; t h e j u v e n i l e c o u r t g r a n t e d
t h a t
m o t i o n i n an o r d e r d a t e d S e p t e m b e r 4, 1986.
S u b s e q u e n t l y ,
t h e
d i s t r i c t
a t t o r n e y moved t h e
t r i a l
c o u r t t o t r a n s f e r
M i l l e r ' s
c a s e b a c k t o t h e j u v e n i l e c o u r t ; t h e
t r i a l
c o u r t g r a n t e d
t h a t
m o t i o n .
However,
on
J a n u a r y
23,
1987,
t h e
j u v e n i l e
c o u r t
e n t e r e d
an o r d e r
s t a t i n g t h a t , i n m o v i n g t o t r a n s f e r M i l l e r ' s
c a s e b a c k t o
t h e
j u v e n i l e c o u r t ,
t h e
d i s t r i c t
a t t o r n e y
h a d
r e l i e d
on
an
i n a p p l i c a b l e s t a t u t e ;
t h a t
"no
p a r t y
t o
t h e
2
1080032
S e p t e m b e r
4, 1986, p r o c e e d i n g s
d i d o r h a s r e q u e s t e d [ t h e
j u v e n i l e c o u r t ] t o r e c o n s i d e r i t s r u l i n g s " ; and t h a t , b e c a u s e
t h e j u v e n i l e
c o u r t h a d g r a n t e d t h e p r i o r m o t i o n t o t r a n s f e r
M i l l e r ' s
c a s e t o t h e t r i a l c o u r t , t h e j u v e n i l e c o u r t no l o n g e r
had
j u r i s d i c t i o n
o v e r t h e c h a r g e s
a g a i n s t M i l l e r .
1
M i l l e r ' s
c a s e r e m a i n e d i n t h e t r i a l
c o u r t .
On M a r c h 17, 1987, M i l l e r
was
c o n v i c t e d i n t h e
t r i a l
c o u r t
o f
f i r s t - d e g r e e
r o b b e r y ,
f i r s t - d e g r e e
b u r g l a r y ,
f i r s t - d e g r e e
sodomy, a n d f i r s t - d e g r e e
r a p e .
On
A p r i l
17,
1987, t h e t r i a l c o u r t s e n t e n c e d M i l l e r t o c o n c u r r e n t t e r m s o f
20
y e a r s i n p r i s o n on e a c h
c o n v i c t i o n .
M i l l e r
s e r v e d h i s
e n t i r e
s e n t e n c e ; he was
r e l e a s e d f r o m
p r i s o n
i n S e p t e m b e r
2006.
On
J u l y 18, 2008, t h e M o n t g o m e r y C o u n t y
P r o b a t e
C o u r t
e n t e r e d
an
o r d e r
i n v o l u n t a r i l y
c o m m i t t i n g
M i l l e r
t o t h e
c u s t o d y o f t h e A l a b a m a D e p a r t m e n t o f M e n t a l H e a l t h and M e n t a l
R e t a r d a t i o n
("DMHMR"),
f i n d i n g ,
among
o t h e r
t h i n g s ,
t h a t
M i l l e r " i s m e n t a l l y i
l
l
a n d p o s e s a r e a l and p r e s e n t t h r e a t o f
s u b s t a n t i a l harm t o h i m s e l f . "
On t h e same d a y , M i l l e r
was
a d m i t t e d t o t h e C r i s i s R e s i d e n t i a l
F a c i l i t y , a m e n t a l - h e a l t h -
1 M i l l e r d i d
n o t a p p e a l f r o m t h e j u v e n i l e c o u r t ' s J a n u a r y
23, 1987, o r d e r .
3
1080032
t r e a t m e n t
f a c i l i t y
l o c a t e d
i n M o n t g o m e r y .
D u r i n g h i s
commitment
p e r i o d a t t h e C r i s i s R e s i d e n t i a l
F a c i l i t y ,
M i l l e r
was
d i a g n o s e d
w i t h " s c h i z o a f f e c t i v e
d i s o r d e r , b i p o l a r
t y p e "
and
w i t h
h y p e r t e n s i o n ,
d i a b e t e s ,
a n d edema,
a n d he was
p r e s c r i b e d
numerous
m e d i c a t i o n s
f o r b o t h
h i s m e n t a l a n d
p h y s i c a l i l l n e s s e s .
M i l l e r ' s m e n t a l c o n d i t i o n was e v e n t u a l l y
s t a b i l i z e d , a n d
on A u g u s t 12,
2008, he
was d i s c h a r g e d f r o m
t h e
C r i s i s
R e s i d e n t i a l
F a c i l i t y
t o " D i x o n
R e s t o r e
Home," a
h o m e l e s s
s h e l t e r
l o c a t e d i n M o n t g o m e r y .
However,
M i l l e r ' s
m e n t a l h e a l t h d e t e r i o r a t e d w h i l e he r e s i d e d a t t h e h o m e l e s s
s h e l t e r , a n d
on December 3, 2008, t h e
p r o b a t e
c o u r t e n t e r e d a
s e c o n d
o r d e r
i n v o l u n t a r i l y
c o m m i t t i n g
M i l l e r
t o DMHMR's
c u s t o d y .
M i l l e r r e t u r n e d t o
t h e
h o m e l e s s s h e l t e r when he
was
r e l e a s e d
f r o m DMHMR's c u s t o d y , a n d h i s
m e n t a l
h e a l t h
a g a i n
d e t e r i o r a t e d ; t h u s , t h e p r o b a t e c o u r t e n t e r e d a t h i r d o r d e r on
A p r i l 29, 2009,
i n v o l u n t a r i l y
c o m m i t t i n g
M i l l e r t o DMHMR's
c u s t o d y .
On S e p t e m b e r 17, 2008, t h e p l a i n t i f f s
f i l e d a c o m p l a i n t
i n t h e t r i a l
c o u r t p u r s u a n t t o 42 U.S.C. § 1983, n a m i n g as
d e f e n d a n t s
G o v e r n o r Bob R i l e y ;
A t t o r n e y
G e n e r a l
T r o y
K i n g ;
C o l o n e l
J . C h r i s t o p h e r
Murphy,
d i r e c t o r
o f t h e A l a b a m a
4
1080032
D e p a r t m e n t
o f
P u b l i c
S a f e t y ;
M o n t g o m e r y C o u n t y
S h e r i f f
D.T.
M a r s h a l l ;
C i t y
o f
M o n t g o m e r y
P o l i c e
C h i e f
A.D.
B a y l o r ;
M o n t g o m e r y C o u n t y D i s t r i c t A t t o r n e y
E l l e n B r o o k s ; M o n t g o m e r y
C o u n t y ;
P r i s o n
H e a l t h
S e r v i c e s ,
I n c . ;
C o r r e c t i o n a l
M e d i c a l
S e r v i c e s ,
I n c . ;
2
and
R i c h a r d
F.
A l l e n , c o m m i s s i o n e r
o f
t h e
A l a b a m a D e p a r t m e n t
o f
C o r r e c t i o n s
( h e r e i n a f t e r
r e f e r r e d
t o
c o l l e c t i v e l y as " t h e d e f e n d a n t s " ) .
The
c o m p l a i n t a l l e g e d
t h a t
M i l l e r
has
b e e n i m p r o p e r l y
c l a s s i f i e d
as
an
" a d u l t
c r i m i n a l
s e x
o f f e n d e r "
f o r
p u r p o s e s
o f
t h e
A l a b a m a
C o m m u n i t y
N o t i f i c a t i o n
A c t ,
§ 15-20-20
e t
s e q . ,
A l a . Code
1
975
("the
CNA");
t h a t
t h e
r e s i d e n c y
r e s t r i c t i o n s
o f
t h e
CNA,
as
s e t
f o r t h
i n
§
1 5 - 2 0 - 2 6 ,
A l a .
Code
1 9 7 5 ,
3
u n c o n s t i t u t i o n a l l y
2On
m o t i o n o f t h e
p l a i n t i f f s , t h e
t r i a l
c o u r t
e n t e r e d
an
o r d e r
on
O c t o b e r
10,
2008,
d i s m i s s i n g
C o r r e c t i o n a l
M e d i c a l
S e r v i c e s ,
I n c . ,
as
a
d e f e n d a n t
and
s u b s t i t u t i n g N a p h C a r e ,
I n c . ,
as
a d e f e n d a n t i n t h e
c a s e .
3 S e c t i o n 1 5 - 2 0 - 2 6 , A l a . Code 1975,
p r o v i d e s ,
i n p e r t i n e n t
p a r t :
" ( a ) U n l e s s o t h e r w i s e e x e m p t e d by
l a w ,
no
a d u l t
c r i m i n a l s e x o f f e n d e r
s h a l l e s t a b l i s h a r e s i d e n c e
o r
any
o t h e r
l i v i n g a c c o m m o d a t i o n o r a c c e p t e m p l o y m e n t
w i t h i n
2,000
f e e t
o f
t h e
p r o p e r t y
on
w h i c h
any
s c h o o l , i n c l u d i n g , b u t n o t l i m i t e d t o , an e l e m e n t a r y
o r s e c o n d a r y s c h o o l
and
a c o l l e g e o r u n i v e r s i t y , o r
c h i l d
c a r e
f a c i l i t y
i s
l o c a t e d .
5
1080032
i n f r i n g e upon s e v e r a l o f M i l l e r ' s c o n s t i t u t i o n a l r i g h t s ; t h a t
t h e
r e s i d e n c y
r e s t r i c t i o n s
o f
t h e
CNA
u n c o n s t i t u t i o n a l l y
i n f r i n g e upon t h e
p l a i n t i f f s ' " f u n d a m e n t a l r i g h t t o
f a m i l i a l
a s s o c i a t i o n " ; and
t h a t p r i s o n
o f f i c i a l s d i s p l a y e d
" d e l i b e r a t e
i n d i f f e r e n c e "
t o M i l l e r ' s m e d i c a l n e e d s , i n v i o l a t i o n
o f
t h e
E i g h t h Amendment t o t h e U n i t e d S t a t e s C o n s t i t u t i o n and A l a b a m a
l a w .
The
p l a i n t i f f s
a l s o
f i l e d c o n t e m p o r a n e o u s m o t i o n s f o r
a
t e m p o r a r y
r e s t r a i n i n g
o r d e r
("TRO")
and
a
p r e l i m i n a r y
i n j u n c t i o n , s e e k i n g
t o p r e v e n t t h e d e f e n d a n t s f r o m a p p l y i n g
t o
M i l l e r
t h e
r e s i d e n c y
r e s t r i c t i o n s
o f
t h e
CNA
a p p l i c a b l e
t o
a d u l t
c r i m i n a l
s e x
o f f e n d e r s .
A f t e r
a
h e a r i n g ,
t h e
t r i a l
c o u r t
e n t e r e d
an
o r d e r
d e n y i n g t h e
p l a i n t i f f s ' m o t i o n s f o r a
TRO
and
a p r e l i m i n a r y
i n j u n c t i o n , c o n c l u d i n g
t h a t
r e q u i r i n g
M i l l e r
t o c o n t i n u e
c o m p l y i n g w i t h
t h e
r e s i d e n c y
r e s t r i c t i o n s
o f t h e
CNA
a p p l i c a b l e t o a d u l t
c r i m i n a l s e x
o f f e n d e r s
" w o u l d
n o t c a u s e i r r e p a r a b l e i n j u r y t o any
o f t h e [ p ] l a i n t i f f s . "
The
p l a i n t i f f s
a p p e a l e d .
See
R u l e
4 ( a ) ( 1 ) ( A ) ,
A l a .
R.
App.
P.
( p r o v i d i n g
t h a t
a p a r t y
may
a p p e a l
f r o m
"any
i n t e r l o c u t o r y
" ( c )
No
a d u l t
c r i m i n a l
s e x
o f f e n d e r
s h a l l
e s t a b l i s h
a
r e s i d e n c e
o r
any
o t h e r
l i v i n g
a c c o m m o d a t i o n where a m i n o r
r e s i d e s . "
6
1080032
o r d e r g r a n t i n g , c o n t i n u i n g , m o d i f y i n g ,
r e f u s i n g , o r d i s s o l v i n g
an
i n j u n c t i o n , o r
r e f u s i n g
t o
d i s s o l v e
o r t o m o d i f y
an
i n j u n c t i o n " ) .
T h i s
C o u r t h e a r d
o r a l a r g u m e n t on O c t o b e r 8,
2009.
S t a n d a r d o f R e v i e w
"We have o f t e n s t a t e d : 'The d e c i s i o n t o g r a n t o r
t o deny a p r e l i m i n a r y i n j u n c t i o n i s w i t h i n t h e
t r i a l
c o u r t ' s
s o u n d
d i s c r e t i o n . I n
r e v i e w i n g
an
o r d e r
g r a n t i n g [ o r d e n y i n g ] a p r e l i m i n a r y
i n j u n c t i o n , t h e
C o u r t
d e t e r m i n e s w h e t h e r t h e t r i a l
c o u r t
e x c e e d e d
t h a t
d i s c r e t i o n . ' S o u t h T r u s t Bank o f A l a b a m a ,
N.A.
v. W e b b - S t i l e s Co., 931 So. 2d 706, 709 ( A l a . 2 0 0 5 ) .
"A p r e l i m i n a r y i n j u n c t i o n s h o u l d be i s s u e d
o n l y
when t h e p a r t y
s e e k i n g an i n j u n c t i o n d e m o n s t r a t e s :
" ' " ( 1 )
t h a t
w i t h o u t
t h e
i n j u n c t i o n
t h e
[ p a r t y ]
w o u l d
s u f f e r
i r r e p a r a b l e
i n j u r y ;
(2)
t h a t t h e [ p a r t y ] h a s no a d e q u a t e
remedy
a t
l a w ;
(3)
t h a t
t h e
[ p a r t y ] h a s a t l e a s t a r e a s o n a b l e
c h a n c e o f s u c c e s s on t h e u l t i m a t e
m e r i t s o f h i s c a s e ; and (4) t h a t
t h e
h a r d s h i p
i m p o s e d
on
t h e
[ p a r t y
o p p o s i n g t h e
p r e l i m i n a r y
i n j u n c t i o n ]
by
t h e
i n j u n c t i o n
w o u l d n o t u n r e a s o n a b l y
o u t w e i g h
t h e
b e n e f i t
a c c r u i n g
t o
t h e
[ p a r t y s e e k i n g t h e
i n j u n c t i o n ] . " '
"Ormco C o r p . v. J o h n s , 869 So. 2d 1109, 1113
( A l a .
2003)
( q u o t i n g
P e r l e y v . T a p s c a n , I n c . ,
646 So. 2d
585,
587
( A l a . 1 9 9 4 ) ) .
"To t h e e x t e n t
t h a t t h e t r i a l
c o u r t ' s
[ d e n i a l ]
o f
a
p r e l i m i n a r y
i n j u n c t i o n i s g r o u n d e d
o n l y i n
7
1080032
q u e s t i o n s
o f
l a w
b a s e d
on
u n d i s p u t e d
f a c t s ,
o u r
l o n g s t a n d i n g
r u l e
t h a t
we
r e v i e w
[ t h e
r e f u s a l
t o
i s s u e ] an i n j u n c t i o n s o l e l y t o d e t e r m i n e w h e t h e r
t h e
t r i a l
c o u r t
e x c e e d e d
i t s
d i s c r e t i o n
s h o u l d
n o t
a p p l y . We
f i n d t h e r u l e a p p l i e d by t h e U n i t e d
S t a t e s
Supreme
C o u r t
i n
s i m i l a r
s i t u a t i o n s
t o
be
p e r s u a s i v e :
'We
r e v i e w
t h e
[ t r i a l
c o u r t ' s ]
l e g a l
r u l i n g s
de novo and
i t s u l t i m a t e
d e c i s i o n t o
i s s u e
[ o r
n o t
t o
i s s u e ] t h e
p r e l i m i n a r y
i n j u n c t i o n
f o r
a b u s e o f d i s c r e t i o n . ' G o n z a l e s v. O C e n t r o
E s p i r i t a
B e n e f i c e n t e
U n i a o do V e g e t a l ,
546
U.S.
418,
428,
126
S.Ct.
1211,
163 L . E d . 2 d 1017
( 2 0 0 6 ) . "
H o l i d a y
I s l e ,
LLC
v.
A d k i n s ,
12
So.
3d
1173,
1175-76
( A l a .
2 0 0 8 ) .
D i s c u s s i o n
^ A l t h o u g h t h e
p l a i n t i f f s
r a i s e numerous i s s u e s on
a p p e a l ,
we
f i n d t h a t t h e d i s p o s i t i v e i s s u e i s w h e t h e r t h e
t r i a l
c o u r t
e r r e d i n f i n d i n g t h a t r e q u i r i n g M i l l e r
t o c o n t i n u e
c o m p l y i n g
w i t h t h e r e s i d e n c y
r e s t r i c t i o n s o f t h e CNA
a p p l i c a b l e t o a d u l t
c r i m i n a l
s e x
o f f e n d e r s
w o u l d n o t c a u s e any
o f t h e
p l a i n t i f f s
t o s u f f e r i r r e p a r a b l e i n j u r y .
However, b e f o r e c o n s i d e r i n g
t h e
s u b s t a n t i v e
i s s u e
p r e s e n t e d
by
t h e
a p p e a l ,
we
must
f i r s t
a d d r e s s t h e
i s s u e w h e t h e r M i l l e r ' s
s i b l i n g s h a v e s t a n d i n g
t o
m a i n t a i n
a c l a i m i n t h i s
a c t i o n .
" ' S t a n d i n g
r e p r e s e n t s
a
j u r i s d i c t i o n a l
r e q u i r e m e n t
w h i c h
r e m a i n s
open
t o
r e v i e w
a t
a l l
s t a g e s
o f t h e
l i t i g a t i o n . '
N a t i o n a l O r g .
f o r Women,
I n c . v. S c h e i d l e r , 510
U.S.
249,
255,
114
S.Ct.
798,
127
L . E d . 2 d 99
( 1 9 9 4 ) .
' " [ L ] a c k
o f
s t a n d i n g
[ i s ] a
8
1080032
j u r i s d i c t i o n a l
d e f e c t . " ' S t a t e v.
P r o p e r t y
a t
2018
R a i n b o w
D r i v e ,
740
So.
2d
1025,
1028
( A l a . 1 999)
( q u o t i n g
T y l e r
House
A p a r t m e n t s ,
L t d .
v.
U n i t e d
S t a t e s ,
38
F e d .
C l .
1,
7
( F e d .
C l .
1997 ) ) .
' [ J ] u r i s d i c t i o n a l m a t t e r s
a r e o f s u c h m a g n i t u d e t h a t
we
t a k e n o t i c e o f them a t any t i m e and do so e v e n
ex
mero motu.' Nunn v. B a k e r , 518
So. 2d 711,
712
( A l a .
19 8
7 ) . "
Ex
p a r t e
F o r t James O p e r a t i n g
Co.,
871
So.
2d
51,
54
( A l a .
2 0 0 3 ) .
"'When
a
p a r t y
w i t h o u t
s t a n d i n g
p u r p o r t s
t o
commence
an
a c t i o n ,
t h e
t r i a l
c o u r t
a c q u i r e s
no
s u b j e c t - m a t t e r
j u r i s d i c t i o n . '
S t a t e v.
P r o p e r t y
a t
2018
R a i n b o w
D r i v e ,
740
So.
2d
1025,
1028
( A l a .
1 9 9 9 ) .
A c t i o n
t a k e n
by
a
t r i a l
c o u r t
l a c k i n g
s u b j e c t - m a t t e r
j u r i s d i c t i o n
i s v o i d . 740
So.
2d
a t
1029.
Of c o u r s e ,
'a v o i d o r d e r o r j u d g m e n t w i l l
n o t
s u p p o r t
an
a p p e a l . '
G a l l a g h e r
B a s s e t t
S e r v s . ,
I n c .
v.
P h i l l i p s ,
991
So.
2d
697,
701
( A l a . 2 0 0 8 ) . "
R i l e y v. P a t e ,
3 So.
3d 835,
838
( A l a . 2 0 0 8 ) .
The
d e f e n d a n t s
a r g u e
on
a p p e a l
t h a t
M i l l e r ' s
s i b l i n g s
l a c k
s t a n d i n g
t o m a i n t a i n
a c l a i m u n d e r
42 U.S.C. §
1 9 8 3 .
4
S p e c i f i c a l l y , t h e d e f e n d a n t s c o n t e n d t h a t , " [ u ] n l e s s
[ M i l l e r ' s
s i b l i n g s ]
c a n show t h a t t h e A l a b a m a
l e g i s l a t u r e
i n t e n d e d
t o
4The
d e f e n d a n t s '
a r g u m e n t s
a r e
s e t
f o r t h
i n t h e
b r i e f
f i l e d
by
t h e
S t a t e
d e f e n d a n t s
--
G o v e r n o r
R i l e y ,
A t t o r n e y
G e n e r a l K i n g , C o l . M u r p h y , and
D i s t r i c t A t t o r n e y B r o o k s ;
t h o s e
a r g u m e n t s were a d o p t e d and
i n c o r p o r a t e d
i n t o
t h e
r e s p e c t i v e
b r i e f s
f i l e d by t h e c o u n t y d e f e n d a n t s -- C h i e f B a y l o r ,
S h e r i f f
M a r s h a l l ,
and
M o n t g o m e r y
C o u n t y .
C o m m i s s i o n e r
A l l e n ,
N a p h C a r e , I n c . , and P r i s o n H e a l t h S e r v i c e s , I n c . , d i d n o t
f i l e
b r i e f s w i t h
t h i s
C o u r t .
9
1080032
d i r e c t t h e CNA d i r e c t l y a t them, t h e y h a v e no s t a n d i n g u n d e r
§ 1983."
( D e f e n d a n t s '
b r i e f , a t p. 12 n.5.)
I n s u p p o r t o f
t h e i r
a r g u m e n t ,
t h e d e f e n d a n t s
c i t e
T r u j i l l o v. B o a r d o f
C o u n t y
C o m m i s s i o n e r s
o f S a n t a
Fe
C o u n t y ,
768 F.2d 1186,
1189-90
( 1 0 t h C i r .
1 9 8 5 ) , and A p o d a c a v . R i o A r r i b a
C o u n t y
S h e r i f f ' s
D e p a r t m e n t , 905 F.2d 1445 ( 1 0 t h
C i r . 1 9 9 0 ) , f o r t h e
p r o p o s i t i o n t h a t " p a r e n t s and s i b l i n g s
h a [ v e ] t o show
i n t e n t
t o i n t e r f e r e
w i t h a p r o t e c t e d r e l a t i o n s h i p
i n o r d e r t o r e c o v e r
f o r
d e p r i v a t i o n
o f
F i r s t
Amendment
r i g h t
t o f r e e d o m
o f
a s s o c i a t i o n . "
( D e f e n d a n t s ' b r i e f , a t p. 12 n.5.)
The
p l a i n t i f f s p r e s e n t no a r g u m e n t on a p p e a l
r e g a r d i n g
w h e t h e r
M i l l e r ' s
s i b l i n g s
h a v e
s t a n d i n g
i n
t h i s
a c t i o n .
However,
t h e
p l a i n t i f f s
a r g u e d
i n t h e
t r i a l
c o u r t
t h a t
M i l l e r ' s
s i b l i n g s h a v e s t a n d i n g b e c a u s e , t h e y
s a i d ,
M i l l e r ' s
s i b l i n g s "have c o n s t i t u t i o n a l l y
r e c o g n i z e d r i g h t s t o f a m i l i a l
a s s o c i a t i o n and a s s e r t
t h e i r own r i g h t s . "
S p e c i f i c a l l y , t h e
p l a i n t i f f s ,
c i t i n g numerous c a s e s , a r g u e d i n t h e t r i a l
c o u r t
t h a t t h e r i g h t t o f a m i l i a l a s s o c i a t i o n
" i s p r o t e c t e d by t h e
r i g h t t o i n t i m a t e a s s o c i a t i o n i n t h e F i r s t Amendment and t h e
s u b s t a n t i v e
component
o f t h e Due
P r o c e s s
C l a u s e
o f t h e
F o u r t e e n t h Amendment t o t h e U n i t e d
S t a t e s
C o n s t i t u t i o n a n d
10
1080032
A l a b a m a l a w " ;
t h a t t h e r i g h t t o f a m i l i a l a s s o c i a t i o n
" i n c l u d e s
t h e
r i g h t
t o
l i v e t o g e t h e r
as
a
f a m i l y " ;
t h a t
t h e
r i g h t
t o
f a m i l i a l a s s o c i a t i o n " i s so f u n d a m e n t a l t h a t i t i s
r e c o g n i z e d
f o r
s e v e r a l
r e l a t i v e s ,
i n c l u d i n g
s i b l i n g s " ;
t h a t
M i l l e r ' s
s i b l i n g s '
" r i g h t s
t o
f a m i l i a l
a s s o c i a t i o n
a r e
p a r t i c u l a r l y
s a l i e n t b e c a u s e t h e y , l i k e a p a r e n t , p r o v i d e
p r i m a r y c a r e
f o r
Mr.
M i l l e r " ;
and
" t h a t
s i b l i n g s
may
e n f o r c e
t h e i r
r i g h t
t o
f a m i l i a l
a s s o c i a t i o n
t h r o u g h
'the
remedy e s t a b l i s h e d
by
[42
U.S.C. §] 1 9 8 3 . ' "
( Q u o t i n g
T r u j i l l o ,
768
F.2d
a t
1 1 8 9 . )
5
A s s u m i n g ,
w i t h o u t
d e c i d i n g ,
t h a t
e a c h
o f
M i l l e r ' s
s i b l i n g s has
a c o n s t i t u t i o n a l l y p r o t e c t e d
r i g h t t o r e s i d e
w i t h
M i l l e r ,
we
n o n e t h e l e s s c o n c l u d e
t h a t
M i l l e r ' s
s i b l i n g s
l a c k
s t a n d i n g
t o
m a i n t a i n
a
c l a i m
i n
t h i s
a c t i o n
u n d e r
§
1983.
" [ O ] n l y
t h e p e r s o n t o w a r d whom t h e
s t a t e a c t i o n was
d i r e c t e d ,
and
n o t
t h o s e
i n c i d e n t a l l y
a f f e c t e d ,
may
m a i n t a i n
a
§
1983
c l a i m
[ f o r a v i o l a t i o n
o f
t h e
f a m i l i a l a s s o c i a t i o n
r i g h t ] . "
M a n a r i t e v.
C i t y
o f
S p r i n g f i e l d ,
957
F.2d
953,
960
( 1 s t C i r .
1 992)
( q u o t i n g
P i t t s l e y v.
W a r i s h ,
927
F.2d
3,
8
( 1 s t
C i r .
1991)
( e m p h a s i s o m i t t e d ) ) .
The
p l a i n t i f f s p r e s e n t no e v i d e n c e
5The p l a i n t i f f s r a i s e d t h e s e a r g u m e n t s i n t h e i r
f i l i n g
i n
t h e
t r i a l
c o u r t
e n t i t l e d
" p l a i n t i f f s '
o p p o s i t i o n
t o
d e f e n d a n t s ' m o t i o n t o
d i s m i s s . "
11
1080032
s h o w i n g
t h a t
t h e
s t a t e
a c t i o n
t h e y
a l l e g e
v i o l a t e s
t h e i r
r e s p e c t i v e
r i g h t s
t o
f a m i l i a l
a s s o c i a t i o n ,
n a m e l y ,
t h e
e n f o r c e m e n t
a g a i n s t
M i l l e r
o f t h e r e s i d e n c y
r e s t r i c t i o n s o f
t h e
CNA
a p p l i c a b l e
t o
a d u l t
c r i m i n a l
s e x
o f f e n d e r s ,
i s
d i r e c t e d a t t h e i r f a m i l i a l
r e l a t i o n s h i p .
F u r t h e r m o r e , as s t a t e d by t h e d e f e n d a n t s ,
" [ t ] h e r e i s no
e v i d e n c e
t h a t
t h e
l e g i s l a t u r e ...
i n t e n d e d
[ t o d i r e c t t h e
r e s i d e n c y
r e s t r i c t i o n s o f t h e CNA t o w a r d t h e p l a i n t i f f s ]
and
i t
i s c o n t r a r y
t o t h e
l e g i s l a t i v e
i n t e n t
as
s t a t e d
i n t h e
s t a t u t e . "
( D e f e n d a n t s ' b r i e f , a t p. 12 n.5.)
The l e g i s l a t u r e
h a s
c l e a r l y
s t a t e d
i t s
i n t e n t
i n
i m p o s i n g
r e s i d e n c y
r e s t r i c t i o n s
upon
c r i m i n a l
s e x
o f f e n d e r s
s u c h
as
M i l l e r ,
d e c l a r i n g , among o t h e r t h i n g s ,
t h a t
" r e s i d e n c y
and employment
r e s t r i c t i o n s
f o r c r i m i n a l
s e x o f f e n d e r s
p r o v i d e
a d d i t i o n a l
p r o t e c t i o n s
t o
v u l n e r a b l e
s e g m e n t s
o f t h e
p u b l i c
s u c h
as
s c h o o l s and c h i l d c a r e
f a c i l i t i e s . "
§ 1 5 - 2 0 - 2 0 . 1 , A l a . Code
1975.
The p l a i n t i f f s h a v e f a i l e d t o show t h a t t h e s t a t e
a c t i o n
i n
r e q u i r i n g
M i l l e r t o c o n t i n u e c o m p l y i n g w i t h t h e
r e s i d e n c y
r e s t r i c t i o n s
o f t h e CNA
a p p l i c a b l e
t o
a d u l t
c r i m i n a l
s e x
o f f e n d e r s i s d i r e c t e d a t t h e i r r i g h t t o f a m i l i a l
a s s o c i a t i o n ;
12
1080032
t h u s ,
any
r e s u l t i n g
d e p r i v a t i o n
o f
t h a t
r i g h t
i s m e r e l y
i n c i d e n t a l
t o t h e s t a t e
a c t i o n .
T h e r e f o r e ,
we
h o l d
t h a t
M i l l e r ' s
s i b l i n g s l a c k
s t a n d i n g
t o m a i n t a i n
a c l a i m i n t h i s
a c t i o n
u n d e r
42
U.S.C.
§
1983.
See
M a n a r i t e ,
s u p r a ;
P e r e z - S a n c h e z v. P u b l i c B l d g . A u t h . , 557 F. Supp. 2d 227, 239
(D.P.R. 2007)
( " ' F a m i l y members do n o t have an
i n d e p e n d e n t
c l a i m
u n d e r
§ 1983
u n l e s s
t h e c o n s t i t u t i o n a l l y d e f e c t i v e
c o n d u c t o r o m i s s i o n was d i r e c t e d a t t h e f a m i l y r e l a t i o n s h i p . ' "
( q u o t i n g
T o r r e s v . U n i t e d
S t a t e s ,
24 F. Supp. 2d 1 8 1 , 183
(D.P.R.
1 9 9 8 ) ) ) ;
D i v e r g i l i o v . S k i b a ,
919 F.Supp. 2
65,
2
69
(E.D.
M i c h . 1
996)
("To r e c o v e r u n d e r § 1
983 f o r
d e p r i v a t i o n o f
a
p r o t e c t e d
r e l a t i o n s h i p , a
p l a i n t i f f
must p r o v e
t h a t t h e
g o v e r n m e n t a l a c t i o n was d i r e c t e d t o w a r d a p r o t e c t e d a s p e c t o f
t h a t
r e l a t i o n s h i p
and
t h a t
any
i n j u r y
was
n o t
m e r e l y
i n c i d e n t a l
t o t h e a c t i o n
t a k e n .
... A b s e n t
a s h o w i n g o f
d i r e c t e d s t a t e a c t i o n , t h e r e i s
no c o n s t i t u t i o n a l c l a i m
"
( c i t i n g
P i t t s l e y ,
927 F.2d a t 8 ) ) ; s e e
a l s o
D a n i e l s
v .
W i l l i a m s ,
474 U.S.
327, 331
(1986)
( " H i s t o r i c a l l y ,
t h i s
g u a r a n t e e o f due p r o c e s s [ u n d e r t h e F o u r t e e n t h Amendment] h a s
b e e n a p p l i e d t o d e l i b e r a t e d e c i s i o n s o f g o v e r n m e n t
o f f i c i a l s
t o d e p r i v e
a p e r s o n o f l i f e ,
l i b e r t y , o r p r o p e r t y . "
( c i t i n g
13
1080032
numerous c a s e s ) ) .
A c c o r d i n g l y ,
i n s o f a r as t h e a p p e a l c o n c e r n s
M i l l e r ' s
s i b l i n g s ,
t h e a p p e a l
i s d i s m i s s e d .
See
R i l e y v .
P a t e ,
s u p r a .
We n e x t a d d r e s s t h e s u b s t a n t i v e
i s s u e : W h e t h e r t h e
t r i a l
c o u r t
e r r e d
i n
f i n d i n g
t h a t
M i l l e r
w o u l d
n o t
s u f f e r
i r r e p a r a b l e
i n j u r y
i f he
c o n t i n u e d
c o m p l y i n g
w i t h
t h e
r e s i d e n c y
r e s t r i c t i o n s o f t h e CNA a p p l i c a b l e t o a d u l t c r i m i n a l
s e x
o f f e n d e r s .
" ' " I r r e p a r a b l e
i n j u r y " i s an i n j u r y t h a t i s n o t
r e d r e s s a b l e
i n a c o u r t
o f l a w t h r o u g h an a w a r d o f
money damages.'
[ P e r l e y v. T a p s c a n ,
I n c . , ] 646 So.
2d
[585,] 587
[ ( A l a . 1 9 9 4 ) ]
( c i t i n g T r i p l e J C a t t l e ,
I n c .
v.
Chambers,
551
So.
2d
280
( A l a . 1
98 9 ) ) .
However,
' c o u r t s
w i l l
n o t u s e
t h e
e x t r a o r d i n a r y
power
o f
i n j u n c t i v e
r e l i e f
m e r e l y
t o
a l l a y
an
a p p r e h e n s i o n o f a p o s s i b l e
i n j u r y ; t h e i n j u r y must
be
i m m i n e n t
and
i r r e p a r a b l e
i n a
c o u r t
a t l a w . '
M a r t i n v . C i t y o f L i n d e n ,
667 So. 2d 732, 736 ( A l a .
1 9 9 5 ) ; s e e a l s o B o r e y v. N a t i o n a l
U n i o n
F i r e I n s .
Co. o f P i t t s b u r g h ,
934 F.2d 30, 34
(2d C i r . 1991)
( s t a t i n g
t h a t
'a mere
p o s s i b i l i t y
o f
i r r e p a r a b l e
harm i s i n s u f f i c i e n t t o j u s t i f y t h e d r a s t i c remedy
o f a p r e l i m i n a r y i n j u n c t i o n ' ) . "
Ormco C o r p . v . J o h n s , 869 So. 2d 1109, 1113-14
( A l a . 2 0 0 3 ) .
On a p p e a l ,
M i l l e r c o n t e n d s t h a t he i s s e v e r e l y
m e n t a l l y
i l l ,
t h a t he i s i n c a p a b l e o f i n d e p e n d e n t l i v i n g , and t h a t , f o r
h i s h e a l t h and h i s s a f e t y , he must r e s i d e e i t h e r w i t h one o f
h i s
s i b l i n g s o r
i n a
g r o u p
home
f o r t h e
m e n t a l l y
i l l .
14
1080032
However, M i l l e r a r g u e s , t h e r e s i d e n c y
r e s t r i c t i o n s o f t h e CNA
a p p l i c a b l e t o a d u l t
c r i m i n a l s e x o f f e n d e r s -- e . g . , an a d u l t
c r i m i n a l s e x o f f e n d e r may n o t r e s i d e w i t h i n 2,000 f e e t o f a
s c h o o l o r c h i l d - c a r e
f a c i l i t y o r i n any l i v i n g
a c c o m m o d a t i o n
w i t h a m i n o r -- p r e v e n t h i m f r o m
r e s i d i n g w i t h any o f
h i s
s i b l i n g s
o r i n most
o f
r e s i d e n t i a l
M o n t g o m e r y
C o u n t y ,
i n c l u d i n g
e v e r y g r o u p home f o r
t h e m e n t a l l y
i
l
l
l o c a t e d i n
M o n t g o m e r y C o u n t y .
M i l l e r
f u r t h e r c l a i m s
t h a t , as a r e s u l t o f t h e r e s i d e n c y
r e s t r i c t i o n s
o f t h e CNA, t h e o n l y p l a c e m e n t DMHMR h a s b e e n
a b l e t o p r o v i d e
f o r
h i m , so l o n g as he i s c l a s s i f i e d as an
a d u l t
c r i m i n a l s e x o f f e n d e r ,
when he i s n o t i n DMHMR's
c u s t o d y ,
h a s b e e n i n t h e D i x o n
R e s t o r e
Home, a
h o m e l e s s
s h e l t e r ;
h o w e v e r ,
M i l l e r
c l a i m s
t h a t
h i s r e s i d i n g i n t h e
h o m e l e s s
s h e l t e r
p u t s
h i m a t
r i s k
o f
s u f f e r i n g
a n o t h e r
p s y c h i a t r i c
r e l a p s e .
S p e c i f i c a l l y ,
M i l l e r
s t a t e s
t h a t
e a c h
t i m e he h a s b e e n r e l e a s e d
f r o m an i n v o l u n t a r y commitment a n d
p l a c e d i n
t h e h o m e l e s s s h e l t e r , "he h a s q u i c k l y d e c o m p e n s a t e d
and
i n t h e m a t t e r
o f o n l y
a few months
s u f f e r e d
a n o t h e r
p s y c h i a t r i c
e m e r g e n c y
r e q u i r i n g
i n v o l u n t a r y
c o m m i t m e n t . "
( M i l l e r ' s
b r i e f , a t p. 16.)
Thus, M i l l e r
a r g u e s , t h e
t r i a l
15
1080032
c o u r t e r r e d i n d e n y i n g t h e m o t i o n s f o r
a TRO and a p r e l i m i n a r y
i n j u n c t i o n
b e c a u s e , he
s a y s ,
e n f o r c e m e n t
o f t h e CNA i n a
manner
t h a t
d e p r i v e s
h i m o f t h e a s s i s t a n c e
he
n e e d s t o
m a i n t a i n p h y s i c a l and m e n t a l s t a b i l i t y c o n s t i t u t e s i r r e p a r a b l e
i n j u r y .
The
d e f e n d a n t s p r e s e n t
s e v e r a l
a r g u m e n t s i n c o n t e n d i n g
t h a t t h e t r i a l c o u r t p r o p e r l y d e n i e d t h e m o t i o n s f o r
a TRO and
a p r e l i m i n a r y
i n j u n c t i o n .
The d e f e n d a n t s a r g u e , among
o t h e r
t h i n g s ,
t h a t ,
e v e n
i f t h e
t r i a l
c o u r t
h a d
e n j o i n e d
t h e
d e f e n d a n t s f r o m a p p l y i n g t o M i l l e r t h e r e s i d e n c y
r e s t r i c t i o n s
o f t h e CNA a p p l i c a b l e t o a d u l t
c r i m i n a l s e x o f f e n d e r s ,
t h e r e
i s
no
g u a r a n t e e
t h a t
t h e t h r e a t s
t o M i l l e r ' s
m e n t a l and
p h y s i c a l
h e a l t h w o u l d h a v e b e e n
a l l e v i a t e d .
The d e f e n d a n t s
a l s o a r g u e
t h a t
M i l l e r h a s o t h e r
o p t i o n s
f o r o b t a i n i n g t h e
c a r e he n e e d s t h a t w o u l d n o t r e q u i r e t h e d r a s t i c remedy o f a
p r e l i m i n a r y i n j u n c t i o n .
S p e c i f i c a l l y , t h e d e f e n d a n t s c o n t e n d ,
among o t h e r
t h i n g s , t h a t M i l l e r ' s
s i b l i n g s " a r e f r e e t o v i s i t
h i m ,
f e e d h i m , m o n i t o r h i s m e d i c a t i o n ,
and t o t a k e any
o t h e r
a c t i o n t h a t t h e y deem n e c e s s a r y o r a p p r o p r i a t e t o c o n t i n u e h i s
h e a l t h
and
w e l f a r e . "
( D e f e n d a n t s '
b r i e f ,
a t p.
15.)
A c c o r d i n g l y ,
t h e d e f e n d a n t s a r g u e , t h e c o n t i n u e d
a p p l i c a t i o n
16
1080032
t o M i l l e r o f t h e r e s i d e n c y
r e s t r i c t i o n s o f t h e CNA
a p p l i c a b l e
t o
a d u l t
c r i m i n a l
s e x
o f f e n d e r s
does
n o t
s u b j e c t
h i m
t o
i m m i n e n t
and
i r r e p a r a b l e
i n j u r y
t h a t
w o u l d
j u s t i f y
t h e
i s s u a n c e
o f a TRO
and
a p r e l i m i n a r y i n j u n c t i o n .
A f t e r
c a r e f u l l y r e v i e w i n g
t h e
r e c o r d
and
b r i e f s
and
h e a r i n g
o r a l a r g u m e n t s o f
t h e
p a r t i e s , we
c o n c l u d e
t h a t
t h e
c u r r e n t
s t a t e
o f
t h e
e v i d e n c e does n o t
s u p p o r t
a
c o n c l u s i o n
t h a t c o n t i n u e d
a p p l i c a t i o n o f t h e
a d u l t - c r i m i n a l - s e x - o f f e n d e r
r e s i d e n c y
r e s t r i c t i o n s
o f t h e CNA
t o M i l l e r
w i l l c a u s e h i m
t o
s u f f e r i r r e p a r a b l e i n j u r y . Thus, we h o l d t h a t t h e
t r i a l
c o u r t
d i d
n o t e r r i n d e n y i n g t h e m o t i o n s f o r a TRO
and
a p r e l i m i n a r y
i n j u n c t i o n .
A c c o r d i n g l y ,
we
a f f i r m t h e
t r i a l c o u r t ' s j u d g m e n t
i n s o f a r
as
i t
d e n i e d
M i l l e r ' s
r e q u e s t
f o r
a
TRO
and
a
p r e l i m i n a r y i n j u n c t i o n .
B e c a u s e M i l l e r
f a i l s
t o d e m o n s t r a t e t h a t he w o u l d s u f f e r
i r r e p a r a b l e i n j u r y w i t h o u t t h e r e q u e s t e d i n j u n c t i v e r e l i e f ,
we
p r e t e r m i t
as u n n e c e s s a r y any
d i s c u s s i o n o f M i l l e r ' s a r g u m e n t s
t h a t
he
s a t i s f i e d
t h e
o t h e r
f a c t o r s
f o r
i s s u a n c e
o f
a
p r e l i m i n a r y
i n j u n c t i o n , see
H o l i d a y
I s l e ,
s u p r a ,
and
o f
t h e
v a r i o u s
o t h e r c o n s t i t u t i o n a l v i o l a t i o n s M i l l e r a l l e g e s w i t h i n
t h o s e a r g u m e n t s .
17
1080032
C o n c l u s i o n
B e c a u s e
M i l l e r ' s
s i b l i n g s
l a c k
s t a n d i n g t o m a i n t a i n a
c l a i m i n t h e u n d e r l y i n g a c t i o n , we d i s m i s s t h e a p p e a l
i n s o f a r
as i t
c o n c e r n s M i l l e r ' s s i b l i n g s .
We a f f i r m t h e t r i a l c o u r t ' s
j u d g m e n t
i n s o f a r as i t d e n i e d M i l l e r ' s r e q u e s t f o r a TRO and
a p r e l i m i n a r y i n j u n c t i o n .
AFFIRMED IN PART AND APPEAL DISMISSED IN PART.
L y o n s ,
W o o d a l l ,
S t u a r t , P a r k e r , and Shaw, J J . , c o n c u r .
Cobb, C . J . , c o n c u r s
s p e c i a l l y .
M u r d o c k , J . , c o n c u r s i n t h e r e s u l t .
B o l i n , J . , n o t
s i t t i n g .
6
6 J u s t i c e B o l i n was u n a b l e t o a t t e n d t h e o r a l a r g u m e n t i n
t h i s
a p p e a l , w h i c h was h e l d a t C u m b e r l a n d
S c h o o l o f Law a t
S a m f o r d
U n i v e r s i t y .
T h e r e was a m a l f u n c t i o n i n t h e
a u d i o
r e c o r d i n g o f t h e a r g u m e n t s and t h e r e i s no r e c o r d , a u d i o o r
o t h e r w i s e , o f t h o s e o r a l a r g u m e n t s a v a i l a b l e f o r r e v i e w .
F o r
t h i s r e a s o n ,
J u s t i c e B o l i n i s n o t
s i t t i n g .
18
1080032
COBB, C h i e f
J u s t i c e
( c o n c u r r i n g
s p e c i a l l y ) .
A l t h o u g h
I c o n c u r
i n t h e m a j o r i t y ' s
a n a l y s i s
i n
t h i s
c a s e , I w r i t e s p e c i a l l y t o n o t e t h a t I c o n t i n u e
t o s t a n d b y my
d i s s e n t i n H o l i d a y
I s l e , LLC v. A d k i n s , 12 So. 3d 1173, 1181
( A l a . 2 0 0 8 ) , w i t h r e g a r d t o t h e s t a n d a r d
o f r e v i e w
a p p l i c a b l e
t o t h e i s s u a n c e
o f a p r e l i m i n a r y i n j u n c t i o n .
I a l s o w r i t e
s p e c i a l l y t o n o t e
a d d i t i o n a l r e a s o n s
why
t h e
r e c o r d
s u p p o r t s
t h e
f i n d i n g
t h a t
c o m p l y i n g
w i t h
t h e
r e s i d e n c y
r e q u i r e m e n t s o f t h e Community N o t i f i c a t i o n A c t , §
15-20-20 e t s e q . , A l a . Code 1975 ("the CNA"), a p p l i c a b l e t o
a d u l t
c r i m i n a l
s e x
o f f e n d e r s
w o u l d
n o t
c a u s e
M i l l e r
i r r e p a r a b l e harm.
The
r e l i e f
M i l l e r
r e q u e s t e d b y way o f a
p r e l i m i n a r y
i n j u n c t i o n was
e x c e e d i n g l y
b r o a d i n r e l a t i o n t o
h i s
s p e c i f i c
and
u n i q u e
d i f f i c u l t i e s
w i t h
t h e
r e s i d e n c y
r e s t r i c t i o n s o f t h e CNA.
He r e q u e s t e d a t e m p o r a r y r e s t r a i n i n g
o r d e r ("TRO") and a p r e l i m i n a r y i n j u n c t i o n t h a t w o u l d r e l i e v e
h i m o f a l l t h e r e s i d e n c y
r e s t r i c t i o n s o f t h e CNA a p p l i c a b l e t o
a d u l t c r i m i n a l s e x o f f e n d e r s .
7
Such b r o a d
r e l i e f w o u l d
a l l o w
M i l l e r t o l i v e a n y w h e r e , n o t j u s t w i t h h i s s i b l i n g s o r i n a
7 S p e c i f i c a l l y ,
M i l l e r
r e q u e s t e d a TRO and a
p r e l i m i n a r y
i n j u n c t i o n
" p r e v e n t i n g
t h e
[ d ] e f e n d a n t s
f r o m
a p p l y i n g
t h e
r e s i d e n c y
r e s t r i c t i o n s o f t h e Community N o t i f i c a t i o n A c t t o
Mr.
M i l l e r . "
19
1080032
f a c i l i t y
i n w h i c h he
c o u l d
r e c e i v e
a p p r o p r i a t e
m o n i t o r i n g ,
m e d i c a t i o n ,
and
s u p e r v i s i o n
f o r h i s p r o t e c t i o n
and
t h e
p r o t e c t i o n o f o t h e r s .
O b v i o u s l y ,
M i l l e r ' s
o n l y
r e s i d e n t i a l
o p t i o n - -
a h o m e l e s s
s h e l t e r - - i s n o t an a p p r o p r i a t e p l a c e m e n t o p t i o n f o r h i m .
H i s
r e s i d e n c e a t t h e s h e l t e r p o s e s s e r i o u s h a z a r d s n o t o n l y t o
h i s
own h e a l t h and s a f e t y , b u t a l s o t o t h e s a f e t y o f t h e g e n e r a l
p u b l i c .
However, b a s e d on
t h i s
r e c o r d ,
w h i c h
d e m o n s t r a t e s
t h a t M i l l e r i s p r o n e t o w a n d e r i n g t h e s t r e e t s and e n d a n g e r i n g
o t h e r s
when
he
r e l a p s e s
i n t o
s e l f - d e s t r u c t i v e ,
v i o l e n t ,
d e l u s i o n a l
s t a t e s , i t w o u l d be u n r e a s o n a b l e t o r e v e r s e
t h e
t r i a l
c o u r t ' s
o r d e r
f o r r e f u s i n g t o g r a n t
t h e b r o a d
r e l i e f
M i l l e r
has
r e q u e s t e d .
The
r e c o r d
c o n t a i n s
no
r e a s o n a b l e
g u a r a n t e e
t h a t ,
i f he
i s
r e l i e v e d
o f
a l l
r e s i d e n c y
r e s t r i c t i o n s
o f
t h e CNA,
M i l l e r
w o u l d
v o l u n t a r i l y
l i m i t
h i m s e l f t o a r e s i d e n c e
t h a t w o u l d p r o v i d e t h e n e c e s s a r y
c a r e
and
s u p e r v i s i o n he n e e d s .
F u r t h e r ,
e v e n i f M i l l e r were t o
l i v e
w i t h
a
s i b l i n g ,
t h e
r e c o r d
c o n t a i n s
no
e v i d e n c e
i n d i c a t i n g t h a t h i s s i b l i n g s w o u l d be a b l e t o p r e v e n t h i m f r o m
e n d a n g e r i n g h i m s e l f o r o t h e r s .
20
1080032
T h e r e f o r e , t h e
t r i a l
c o u r t
c o r r e c t l y c o n c l u d e d
t h a t ,
on
b a l a n c e ,
M i l l e r
f a i l e d
t o
d e m o n s t r a t e
t h a t
t h e
b r o a d
i n j u n c t i v e
r e l i e f
he
s o u g h t
was
n e c e s s a r y
t o
p r e v e n t
o r
a l l e v i a t e
i r r e p a r a b l e
i n j u r y .
See,
e.g.,
Ormco
C o r p .
v.
J o h n s ,
869 So. 2d 1109,
1113
( A l a . 2 0 0 3 ) ( " A
p l a i n t i f f
s e e k i n g
a p r e l i m i n a r y
i n j u n c t i o n has t h e b u r d e n o f d e m o n s t r a t i n g
...
t h a t w i t h o u t t h e
i n j u n c t i o n t h e
p l a i n t i f f w o u l d
s u f f e r
i m m e d i a t e
and
i r r e p a r a b l e
i n j u r y
( q u o t i n g
P e r l e y
v.
T a p s c a n ,
I n c . ,
646
So.
2d
585,
587
( A l a .
1 9 9 4 ) ( e m p h a s i s
a d d e d ) ) ) .
F o r t h e s e r e a s o n s , and f o r t h e r e a s o n s e x p r e s s e d by
t h e
m a j o r i t y ,
I am
f i r m l y c o n v i n c e d
t h a t
t h e
t r i a l
c o u r t ' s
o r d e r
d e n y i n g
M i l l e r
t h e
r e l i e f
he
s e e k s
i s
due
t o
be
a f f i r m e d .
21 | October 30, 2009 |
231ce4aa-4ce6-454c-be89-1a8412d3772a | Ex parte Stacey McKenzie. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Tracey Booker v. Stacey McKenzie et al.) | N/A | 1080835 | Alabama | Alabama Supreme Court | REL:10/30/2009
Notice: T h i s o p i n i o n i s
s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n
t h e
advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e
Reporter of
Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741 ((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l
o r
o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may
be
made b e f o r e
t h e o p i n i o n i s p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1080835
Ex p a r t e Stacey McKenzie
PETITION FOR WRIT OF MANDAMUS
(In r e : Tracey Booker
v.
Stacey McKenzie e t
a l . )
(Wilcox C i r c u i t Court, CV-08-44)
BOLIN,
J u s t i c e .
S t a c e y
M c K e n z i e
p e t i t i o n s
t h i s
C o u r t
f o r
a
w r i t o f
mandamus
d i r e c t i n g t h e W i l c o x
C i r c u i t
C o u r t t o v a c a t e i t s
o r d e r d e n y i n g h e r m o t i o n t o t r a n s f e r t o t h e
Monroe
C i r c u i t
1080835
C o u r t an a c t i o n
f i l e d a g a i n s t h e r by T r a c e y B o o k e r .
We
g r a n t
t h e
p e t i t i o n
and
i s s u e t h e
w r i t .
F a c t s
and
P r o c e d u r a l
B a c k g r o u n d
The
u n d e r l y i n g
a c t i o n
a r i s e s
o u t
o f
a
m o t o r - v e h i c l e
a c c i d e n t
t h a t o c c u r r e d
on J u l y 16, 2006, b e t w e e n an a u t o m o b i l e
b e i n g
d r i v e n
by
B o o k e r
and
an
a u t o m o b i l e
b e i n g
d r i v e n
by
M c K e n z i e .
The
a c c i d e n t
o c c u r r e d
on A l a b a m a H i g h w a y 47.
S t a t e
T r o o p e r P e d r o D a c o s t a i n v e s t i g a t e d t h e
a c c i d e n t .
On
J u l y
14,
2008, B o o k e r
s u e d M c K e n z i e
i n
t h e
W i l c o x
C i r c u i t C o u r t , a l l e g i n g t h a t
t h e
a c c i d e n t
o c c u r r e d
i n W i l c o x
C o u n t y .
I n h e r
c o m p l a i n t ,
B o o k e r s t a t e d t h a t
she
r e s i d e d
i n
C o n e c u h C o u n t y .
I n h e r
i n i t i a l r e s p o n s i v e
p l e a d i n g ,
M c K e n z i e ,
a r e s i d e n t o f Monroe C o u n t y , a s s e r t e d , among o t h e r t h i n g s ,
t h e
d e f e n s e o f i m p r o p e r v e n u e .
On
November
20,
2008,
M c K e n z i e
f i l e d
a m o t i o n
f o r
a
c h a n g e o f v e n u e on t h e g r o u n d s t h a t v e n u e i n W i l c o x C o u n t y
was
i m p r o p e r and
t h a t
t h e
a c t i o n s h o u l d
be
t r a n s f e r r e d t o Monroe
C o u n t y
w h e r e ,
she
s a i d ,
t h e
a c c i d e n t
o c c u r r e d
and
where
M c K e n z i e r e s i d e s and,
i n t h e a l t e r n a t i v e , t h a t t h e a c t i o n
was
due
t o be t r a n s f e r r e d t o Monroe C o u n t y on t h e g r o u n d s o f f o r u m
non
c o n v e n i e n s .
I n s u p p o r t o f h e r m o t i o n , M c K e n z i e
a t t a c h e d
2
1080835
t h e
c o m p l a i n t ,
w h i c h
s t a t e d
t h a t
B o o k e r
r e s i d e d
i n C o n e c u h
C o u n t y
and
t h a t
M c K e n z i e
r e s i d e d
i n
Monroe
C o u n t y ;
an
a f f i d a v i t
f r o m
O f f i c e r D a c o s t a ,
who
s t a t e d
t h a t
he
was
t h e
o f f i c e r
who
i n v e s t i g a t e d t h e
a c c i d e n t
and
t h a t
t h e
a c c i d e n t
o c c u r r e d
i n
Monroe
C o u n t y ;
t h e
r e p o r t
O f f i c e r
D a c o s t a
c o m p l e t e d
f o l l o w i n g
t h e
a c c i d e n t ,
w h i c h
i n d i c a t e s
t h a t
t h e
a c c i d e n t
o c c u r r e d
i n Monroe C o u n t y ; and
a p o r t i o n o f B o o k e r ' s
d e p o s i t i o n
t e s t i m o n y i n w h i c h she
s t a t e d t h a t
she
r e s i d e d
i n
E v e r g r e e n , A l a b a m a , w h i c h
i s l o c a t e d
i n C o n e c u h C o u n t y .
On
November 25, 2009, t h e
t r i a l c o u r t s e t t h e m o t i o n f o r a c h a n g e
o f v e n u e f o r a h e a r i n g
on J a n u a r y 26,
2009.
On
J a n u a r y
26,
2009,
B o o k e r
f i l e d
a
r e s p o n s e
i n
o p p o s i t i o n t o t h e m o t i o n t o t r a n s f e r .
She a r g u e d t h a t
O f f i c e r
D a c o s t a ' s
a f f i d a v i t
was
n o t
b a s e d
on
p e r s o n a l
k n o w l e d g e
b e c a u s e
he
" d i d
n o t
p e r s o n a l l y
w i t n e s s
any
a s p e c t s
o f
t h e
a c c i d e n t , " and she a l s o a r g u e d t h a t O f f i c e r D a c o s t a ' s
a c c i d e n t
r e p o r t
s h o u l d
be
s t r i c k e n
as
i n a d m i s s i b l e
e v i d e n c e .
I n
s u p p o r t o f h e r r e s p o n s e , B o o k e r a t t a c h e d
an a f f i d a v i t i n w h i c h
she
s t a t e d
t h a t
she
had
r e c e n t l y
v i s i t e d
t h e
s c e n e
o f
t h e
a c c i d e n t
and
t h a t
she
" b e l i e v e s "
t h e
a c c i d e n t
o c c u r r e d
i n
3
1080835
W i l c o x C o u n t y .
B o o k e r ' s
a f f i d a v i t
a l s o s t a t e d t h a t she i s
a
r e s i d e n t o f Monroe
C o u n t y .
On F e b r u a r y 24, 2009, t h e t r i a l
c o u r t d e n i e d
M c K e n z i e ' s
m o t i o n f o r a c h a n g e o f v e n u e .
On A p r i l 7, 2009,
M c K e n z i e
f i l e d h e r p e t i t i o n f o r
t h e w r i t o f mandamus w i t h
t h i s C o u r t .
On June 24, 2009, M c K e n z i e
f i l e d i n t h e t r i a l
c o u r t a m o t i o n
t o
s t a y t h e
p r o c e e d i n g s a n d t o c o n t i n u e t h e d a t e s e t
f o r t r i a l
p e n d i n g t h i s C o u r t ' s r u l i n g on h e r p e t i t i o n .
The t r i a l
c o u r t
g r a n t e d t h e m o t i o n t o s t a y .
S t a n d a r d o f R e v i e w
I n Ex p a r t e Kane, 98
9 So. 2d 509, 511 ( A l a . 2008 ),
we
s t a t e d t h e s t a n d a r d o f r e v i e w f o r
t h e d e n i a l o f a m o t i o n f o r
a c h a n g e o f v e n u e as f o l l o w s :
"'The
p r o p e r method f o r o b t a i n i n g r e v i e w o f a
d e n i a l o f a m o t i o n f o r
a c h a n g e o f v e n u e i n a
c i v i l
a c t i o n i s
t o p e t i t i o n f o r
t h e w r i t o f mandamus.' Ex
p a r t e
N a t i o n a l S e c . I n s .
Co., 727 So. 2d 7
88
, 78
9
( A l a .
1 9 9 8 ) .
A w r i t o f mandamus i s a p p r o p r i a t e when
t h e
p e t i t i o n e r c a n d e m o n s t r a t e
'(1) a c l e a r
l e g a l
r i g h t t o t h e o r d e r s o u g h t ; (2) an i m p e r a t i v e d u t y
upon t h e r e s p o n d e n t t o p e r f o r m ,
a c c o m p a n i e d
by a
r e f u s a l t o do s o ; (3) t h e l a c k o f a n o t h e r
a d e q u a t e
r e m e d y ; a n d (4) t h e p r o p e r l y i n v o k e d j u r i s d i c t i o n o f
t h e
c o u r t . '
Ex p a r t e BOC G r o u p ,
I n c . ,
823 So. 2d
1270,
1272 ( A l a . 2001 ) .
A d d i t i o n a l l y ,
t h i s
C o u r t
r e v i e w s mandamus p e t i t i o n s
c h a l l e n g i n g a r u l i n g on
v e n u e on t h e b a s i s o f f o r u m non c o n v e n i e n s b y a s k i n g
w h e t h e r t h e t r i a l c o u r t e x c e e d e d i t s d i s c r e t i o n .
Ex
p a r t e
F u l l e r , 955 So. 2d 414 ( A l a . 2 0 0 6 ) ; Ex p a r t e
4
1080835
V e r b e n a
U n i t e d
M e t h o d i s t
C h u r c h ,
953
So.
2d
395
( A l a .
2 0 0 6 ) .
Our
r e v i e w
i s l i m i t e d
t o
o n l y
t h o s e
f a c t s
t h a t were b e f o r e
t h e
t r i a l
c o u r t .
Ex
p a r t e
P i k e F a b r i c a t i o n , I n c . ,
859
So.
2d 1089,
1091
( A l a .
2 0
0 2 ) . "
"'The
b u r d e n
o f p r o v i n g
i m p r o p e r v e n u e i s on
t h e
p a r t y
r a i s i n g
t h e
i s s u e and
on
r e v i e w
o f an
o r d e r
t r a n s f e r r i n g o r
r e f u s i n g t o t r a n s f e r , a w r i t o f mandamus w i l l
n o t be
g r a n t e d
u n l e s s
t h e r e
i s a c l e a r s h o w i n g o f e r r o r on
t h e p a r t
o f
t h e
t r i a l
j u d g e . ' "
Ex
p a r t e
P i k e
F a b r i c a t i o n , I n c . ,
859
So.
2d
1089,
1091
( A l a . 2
0
0
2 ) ( q u o t i n g Ex p a r t e F i n a n c e A m e r i c a C o r p . ,
507
So.
2d 458,
460
( A l a .
1 9 8 7 ) ) .
A n a l y s i s
Venue o f a c t i o n s a g a i n s t i n d i v i d u a l s i s g o v e r n e d by §
6¬
3-2,
A l a . Code 1975.
M c K e n z i e a r g u e s
t h a t
t h e
t r i a l
c o u r t
e r r e d i n d e n y i n g h e r m o t i o n f o r a c h a n g e o f v e n u e when i t was
u n d i s p u t e d
t h a t M c K e n z i e i s n o t
a r e s i d e n t o f W i l c o x
C o u n t y ,
when t h e
e v i d e n c e shows t h a t
t h e
a c c i d e n t
d i d n o t
o c c u r
i n
W i l c o x C o u n t y , and when t h e o n l y c o n n e c t i o n
t h e a c t i o n has
t o
W i l c o x
C o u n t y i s b a s e d on
t h e a v e r m e n t i n t h e
c o m p l a i n t
and
t h e
u n s u b s t a n t i a t e d
a f f i d a v i t
o f
B o o k e r
s t a t i n g
t h a t
she
" b e l i e v e s " t h a t t h e a c c i d e n t o c c u r r e d
i n W i l c o x C o u n t y .
1
See
1 M c K e n z i e c o m p l a i n s t h a t B o o k e r ' s a f f i d a v i t was
u n t i m e l y
u n d e r
R u l e
6 ( d ) ,
A l a .
R.
C i v .
P.,
w h i c h
p r o v i d e s
t h a t
5
1080835
§ 6 - 3 - 2 ( a ) ( 3 ) ,
A l a . Code 1975.
M c K e n z i e f u r t h e r a r g u e s
t h a t
t h e
t r i a l
c o u r t e r r o n e o u s l y d e n i e d t h e m o t i o n f o r a c h a n g e o f
v e n u e on t h e a l t e r n a t i v e g r o u n d o f f o r u m non
c o n v e n i e n s ,
§
6¬
3-21.1, A l a . Code 1975, b e c a u s e , she s a y s , t h e
t r i a l c o u r t
was
r e q u i r e d t o t r a n s f e r t h e a c t i o n t o Monroe C o u n t y b a s e d on
t h e
c o n v e n i e n c e o f t h e p a r t i e s and
i n t h e
i n t e r e s t o f
j u s t i c e .
S e c t i o n 6 - 3 - 2 ( a ) ( 3 ) p r o v i d e s t h a t v e n u e i n c i v i l
a c t i o n s
o f a l e g a l n a t u r e
(as o p p o s e d t o an e q u i t a b l e n a t u r e )
a g a i n s t
i n d i v i d u a l s i s p r o p e r e i t h e r i n t h e c o u n t y where t h e d e f e n d a n t
r e s i d e s o r t h e c o u n t y where t h e a c t o r o m i s s i o n c o m p l a i n e d
o f
o c c u r r e d .
I t i s u n d i s p u t e d
t h a t M c K e n z i e r e s i d e s i n Monroe
" o p p o s i n g
a f f i d a v i t s
may
be
s e r v e d
n o t
l a t e r
t h a n
one
day
b e f o r e t h e h e a r i n g , u n l e s s t h e c o u r t p e r m i t s them t o be
s e r v e d
a t some o t h e r t i m e . "
I t i s u n c l e a r f r o m M c K e n z i e ' s
p e t i t i o n
and
a t t a c h m e n t s w h e t h e r
t h e
t r i a l
c o u r t
h e l d
t h e
s c h e d u l e d
h e a r i n g ,
w h e t h e r
M c K e n z i e
o b j e c t e d
t o
t h e
f i l i n g
o f
t h e
a f f i d a v i t , o r w h e t h e r t h e
t r i a l c o u r t a l l o w e d t h e a f f i d a v i t
o r
c o n s i d e r e d t h e
a f f i d a v i t .
" W i t h r e s p e c t t o t h e t i m e l i n e s s o f
t h e p l a i n t i f f s '
f i l i n g s , we n o t e t h a t R u l e
6 ( d ) , A l a . R.
C i v .
P.,
v e s t s
d i s c r e t i o n
i n
t h e
t r i a l
c o u r t
c o n c e r n i n g
t h e
a c c e p t a n c e o f t h e
f i l i n g s ,
and
t h i s d i s c r e t i o n has
o f t e n b e e n
r e c o g n i z e d
i n c a s e a u t h o r i t y . "
V e s t a
F i r e
I n s . Co.
v.
M i l a m
&
Co.
C o n s t r . ,
901
So.
2d
84,
10 6
( A l a . 2004 ).
We
w i l l
p r e s u m e
t h a t
t h e
t r i a l
c o u r t
c o n s i d e r e d
B o o k e r ' s
a f f i d a v i t
b e c a u s e n o t h i n g i n t h e p e t i t i o n o r a t t a c h m e n t s i n d i c a t e s t h a t
t h e
t r i a l
c o u r t
e x c l u d e d
t h e
a f f i d a v i t .
See
S i n g l e t o n
v.
A l a b a m a Dep't o f C o r r . , 819
So.
2d 596,
598
n. 1 ( A l a . 2 0 0 1 ) .
6
1080835
C o u n t y .
The
f a c t u a l i s s u e r a i s e d by M c K e n z i e ' s m o t i o n f o r a
c h a n g e o f v e n u e i s where t h e a c c i d e n t
o c c u r r e d .
B o o k e r
f i l e d h e r c o m p l a i n t i n W i l c o x C o u n t y .
I n r e s p o n s e
t o t h e c o m p l a i n t , M c K e n z i e r a i s e d t h e i s s u e o f i m p r o p e r v e n u e .
I n
s u p p o r t o f h e r m o t i o n
f o r a change
o f v e n u e ,
M c K e n z i e
a t t a c h e d O f f i c e r D a c o s t a ' s a c c i d e n t r e p o r t , e s t a b l i s h i n g
t h a t
t h e
a c c i d e n t
o c c u r r e d
i n Monroe
C o u n t y .
M c K e n z i e
a l s o
a t t a c h e d an a f f i d a v i t f r o m O f f i c e r D a c o s t a , w h i c h p r o v i d e d as
f o l l o w s :
"On
J u l y
16, 2006,
I was
e m p l o y e d
as a
s t a t e
t r o o p e r by t h e A l a b a m a
D e p a r t m e n t
o f P u b l i c
S a f e t y .
On
s a i d
d a t e I i n v e s t i g a t e d
t h e s c e n e
o f a
m o t o r
v e h i c l e
a c c i d e n t
on
H i g h w a y
47
o u t s i d e
o f
M o n r o e v i l l e .
I have r e v i e w e d t h e a c c i d e n t
r e p o r t ,
w h i c h I p r e p a r e d r e g a r d i n g t h e a c c i d e n t .
I
r e c a l l
i d e n t i f y i n g t h e d r i v e r s o f t h e two v e h i c l e s
i n v o l v e d
as
M r s .
S t a c e y M c K e n z i e
and
M r s .
T r a c e y
B o o k e r .
B a s e d on my
r e c o l l e c t i o n
o f t h e a c c i d e n t
s c e n e
on
s a i d
d a t e , t h e a c c i d e n t
i n v o l v i n g M r s . B o o k e r
and
M r s .
M c K e n z i e
o c c u r r e d
i n Monroe C o u n t y ,
A l a b a m a .
The
a c c i d e n t
d i d
n o t
o c c u r
i n
W i l c o x
C o u n t y ,
A l a b a m a . "
I n r e s p o n s e t o t h e m o t i o n f o r a c h a n g e o f v e n u e ,
B o o k e r
a r g u e d
t h a t
O f f i c e r
D a c o s t a ' s
a f f i d a v i t
was
n o t
b a s e d
on
p e r s o n a l k n o w l e d g e b e c a u s e , she s a i d , "he d i d n o t
p e r s o n a l l y
w i t n e s s any a s p e c t s o f t h e a c c i d e n t . "
T h e r e i s no n e e d f o r
O f f i c e r D a c o s t a t o have w i t n e s s e d t h e a c c i d e n t t o be a b l e t o
7
1080835
t e s t i f y as t o t h e l o c a t i o n o f t h e a c c i d e n t f o r p u r p o s e s o f t h e
m o t i o n f o r a c h a n g e o f v e n u e .
A l a b a m a c o u r t s h a v e l o n g
h e l d
t h a t
an
o f f i c e r
i n v e s t i g a t i n g
an
a u t o m o b i l e
a c c i d e n t
may
t e s t i f y
t o
f a c t s
d e r i v e d
f r o m
t h e
o f f i c e r ' s
p e r s o n a l
o b s e r v a t i o n o f t h e s c e n e o f t h e a c c i d e n t , e v e n i f t h e
o f f i c e r
d i d n o t p e r s o n a l l y w i t n e s s t h e a c c i d e n t .
See, e.g., Brown v.
AAA Wood P r o d s . , I n c . , 380
So.
2d 784
( A l a . 1
98 0
) ( a l l o w i n g
f i r s t
o f f i c e r
a r r i v i n g on t h e s c e n e t o t e s t i f y r e g a r d i n g t h e
l o c a t i o n o f t h e p o i n t o f i m p a c t o f t h e c a r c o l l i s i o n ) ;
S h a r p
v.
A r g o - C o l l i e r T r u c k
L i n e s
C o r p . ,
356
So.
2d
147
( A l a .
1 9 7 8 ) ( a l l o w i n g p a t r o l o f f i c e r t o t e s t i f y as t o p o i n t o f i m p a c t
where o f f i c e r o b s e r v e d t h e l o c a t i o n s o f t i r e t r a c k s and gouge
marks
i n t h e
pavement
o f
h i g h w a y ,
t h e
c o n d i t i o n
o f
b o t h
v e h i c l e s , and t h e l o c a t i o n o f d i e s e l
f u e l and
u n d e r - c a r r i a g e
o f b o t h v e h i c l e s ) ;
G r i f f i n v. G r e g o r y , 355
So. 2d 691 ( A l a .
1 9 7 8 ) ( a l l o w i n g p a t r o l o f f i c e r t o t e s t i f y as t o p o i n t o f i m p a c t
b a s e d on h i s p e r s o n a l o b s e r v a t i o n s ) ; and B e l e w v. N e l s o n ,
932
So. 2d 110
( A l a . C i v . App.
2 0 0 5 ) ( a l l o w i n g
p a t r o l
o f f i c e r
t o
t e s t i f y
as t o h i s c o n c l u s i o n r e g a r d i n g what h a p p e n e d i n t h e
a u t o m o b i l e
a c c i d e n t
b a s e d
on
t h e
s k i d
and
yaw
marks
e a c h
8
1080835
v e h i c l e
l e f t on t h e p a v e m e n t , t h e damage t o t h e v e h i c l e s , and
t h e
f i n a l
r e s t i n g p l a c e o f t h e v e h i c l e s ) .
I n r e s p o n s e t o t h e m o t i o n f o r
a c h a n g e o f v e n u e ,
B o o k e r
a l s o
a r g u e d
t h a t
O f f i c e r
D a c o s t a ' s
a c c i d e n t
r e p o r t
was
i n a d m i s s i b l e .
I t i s c o r r e c t
t h a t
a
r e p o r t
by
a l a w -
e n f o r c e m e n t
o f f i c e r
c o n c e r n i n g
an
a u t o m o b i l e
a c c i d e n t
i n v e s t i g a t e d by t h e o f f i c e r i s i n a d m i s s i b l e e v i d e n c e u n d e r §
3 2 - 1 0 - 1 1 , A l a . Code 1975, and t h a t
t h i s
i s so b e c a u s e t h e
r e p o r t
c o n t a i n s
h e a r s a y .
R e e v e s v . K i n g , 534 So. 2d 1107
( A l a . 1 9 8 8 ) ; V e s t v. Gay, 275 A l a . 286, 154 So. 2d 297 ( 1 9 6 3 ) .
I n Worsham v.
F l e t c h e r ,
454 So. 2d 946
( A l a . 1
9 8 4 ) , t h e
p l a i n t i f f a r g u e d t h a t t h e p o l i c e o f f i c e r ' s a c c i d e n t r e p o r t was
a d m i s s i b l e u n d e r an e x c e p t i o n t o t h e h e a r s a y r u l e .
T h i s C o u r t
e x p l a i n e d :
" I n t h e c a s e a t b a r , t h e o f f i c e r
t e s t i f i e d
t h a t
a t t h e t i m e t h e w r i t i n g was made he knew t h a t t h e
c o n t e n t s o f t h e w r i t i n g were
t r u e and c o r r e c t and
t h a t he h a d no r e c o l l e c t i o n a t t h e t i m e o f t r i a l o f
t h e
e v e n t s
r e l a t e d i n t h e r e p o r t . The r e a s o n t h e
r e p o r t was
i n a d m i s s i b l e i n t h i s
c a s e was t h a t t h e
o f f i c e r d i d
n o t p e r s o n a l l y o b s e r v e a l l
o f t h e e v e n t s
d e s c r i b e d
i n t h e r e p o r t .
T h a t
i n f o r m a t i o n
i n t h e
r e p o r t
w h i c h
was
b a s e d
on
t h e
o f f i c e r ' s
own
o b s e r v a t i o n s
was
a d m i s s i b l e .
The
d a t e
o f t h e
r e p o r t , t h e d r a w i n g
d e p i c t i n g t h e p o s i t i o n s o f t h e
v e h i c l e s a t t h e t i m e t h e o f f i c e r o b s e r v e d them, t h e
d e s c r i p t i o n o f t h e i n t e r s e c t i o n , and t h e d e s c r i p t i o n
o f t h e w e a t h e r
c o n d i t i o n s were a l l t h i n g s w h i c h t h e
9
1080835
o f f i c e r saw. Those p o r t i o n s o f t h e r e p o r t c o u l d h a v e
b e e n a d m i t t e d .
I n f a c t , t h e o f f i c e r was a l l o w e d t o
t e s t i f y
w i t h o u t
o b j e c t i o n
t o t h o s e
f a c t s .
The
o b j e c t i o n s were made t o t h o s e p o r t i o n s o f t h e r e p o r t
w h i c h
were
b a s e d ,
i n p a r t ,
on t h e e v e n t s
w h i c h
t r a n s p i r e d b e f o r e t h e o f f i c e r
a r r i v e d on t h e s c e n e .
The
d e f e n d a n t
p r o p e r l y
o b j e c t e d
t o t h e p o r t i o n o f
t h e
r e p o r t
d e s c r i b i n g
t h e
a c c i d e n t .
T h a t
d e s c r i p t i o n was b a s e d on what o t h e r p e o p l e t o l d t h e
o f f i c e r , n o t on what he saw.
The r e p o r t d i d
n o t
i n d i c a t e
t h a t t h e s t a t e m e n t s made t o t h e
o f f i c e r
were
a t t r i b u t a b l e t o t h e d e f e n d a n t . The d e f e n d a n t
a l s o o b j e c t e d t o q u e s t i o n i n g as t o t h e ' c o n t r i b u t i n g
c i r c u m s t a n c e s '
e n t r y on t h e r e p o r t .
I t i n d i c a t e d
t h a t
t h e r e
was
no
i m p r o p e r
d r i v i n g
on
t h e
p l a i n t i f f ' s
p a r t
a n d
t h a t
t h e
d e f e n d a n t
was
i n a t t e n t i v e a n d f o l l o w i n g t o o c l o s e l y .
A g a i n ,
t h o s e
were
n o t o b s e r v a t i o n s
made by t h e o f f i c e r .
The
p l a i n t i f f
n e v e r
a r g u e d
t h a t
t h e o f f i c e r
was an
e x p e r t who c o u l d
t e s t i f y t o s u c h o p i n i o n s
b a s e d on
what he s a w . "
454
So. 2d a t 948 ( e m p h a s i s a d d e d ) .
I n t h e p r e s e n t
c a s e ,
O f f i c e r D a c o s t a ' s r e p o r t c o n t a i n e d
h i s o b s e r v a t i o n s
r e g a r d i n g
t h e
l o c a t i o n o f t h e a c c i d e n t , a n d t h e r e p o r t was
s u b m i t t e d
s o l e l y f o r t h e
p u r p o s e o f p r o v i n g where t h e a c c i d e n t
o c c u r r e d .
A c c o r d i n g l y , t h e r e p o r t c a n be u s e d t o s u p p o r t t h e m o t i o n
f o r
a c h a n g e o f v e n u e .
As t h e m o v a n t , M c K e n z i e h a d t h e b u r d e n o f p r o v i n g
t h a t
v e n u e i n W i l c o x
C o u n t y was i m p r o p e r .
Once M c K e n z i e made a
p r i m a f a c i e s h o w i n g t h a t v e n u e i n W i l c o x C o u n t y was i m p r o p e r ,
t h e
b u r d e n t h e n
s h i f t e d t o B o o k e r t o r e b u t t h e p r i m a
f a c i e
10
1080835
s h o w i n g .
See
Ex p a r t e
P i k e F a b r i c a t i o n , 859
So.
2d a t
1092.
A c c o r d i n g l y , once M c K e n z i e made a p r i m a f a c i e s h o w i n g t h a t
she
r e s i d e d
i n Monroe C o u n t y
and
t h a t
t h e
a c c i d e n t
o c c u r r e d
i n
Monroe C o u n t y , t h e b u r d e n t h e n s h i f t e d t o B o o k e r t o p r o v e t h a t
t h e a c c i d e n t
o c c u r r e d
i n W i l c o x C o u n t y .
She
f a i l e d t o do
so
b e c a u s e
h e r
a f f i d a v i t ,
e v e n
a s s u m i n g
t h a t
i t was
p r o p e r l y
c o n s i d e r e d
by
t h e
t r i a l
c o u r t ,
o f f e r e d
o n l y
a
c o n c l u s o r y
s t a t e m e n t
t h a t
she
" b e l i e v e d " t h a t
t h e
a c c i d e n t
o c c u r r e d
i n
W i l c o x
C o u n t y .
She
o f f e r e d
no
e v i d e n c e
t o
s u p p o r t
t h a t
s t a t e m e n t .
C o n c l u s i o n
I f
v e n u e
f o r
an
a c t i o n
i s shown
t o
be
i m p r o p e r ,
t h e
a c t i o n must be
t r a n s f e r r e d .
Ex p a r t e O v e r s t r e e t ,
748
So.
2d
194
( A l a . 1 9 9 9 ) .
We
h o l d t h a t , b a s e d on t h e e v i d e n c e
b e f o r e
t h e
t r i a l
c o u r t
a t t h e t i m e o f i t s r u l i n g ,
t h e
c o u r t
s h o u l d
h a v e g r a n t e d M c K e n z i e ' s m o t i o n f o r a c h a n g e o f v e n u e , and
we
d i r e c t t h e
t r i a l
c o u r t t o v a c a t e
i t s o r d e r d e n y i n g t h e m o t i o n
and
t o t r a n s f e r t h e a c t i o n t o Monroe C o u n t y .
B e c a u s e u n d e r
§
6-3-2, A l a . Code 1975, v e n u e was
i m p r o p e r i n W i l c o x C o u n t y ,
we
p r e t e r m i t d i s c u s s i o n o f M c K e n z i e ' s a l t e r n a t i v e a r g u m e n t
t h a t
11
1080835
t h e c a s e s h o u l d be t r a n s f e r r e d b a s e d on § 6-3-21.1, A l a . Code
1975, t h e f o r u m non c o n v e n i e n s
s t a t u t e .
P E T I T I O N GRANTED; WRIT
ISSUED.
L y o n s , W o o d a l l , S t u a r t , S m i t h , P a r k e r , M u r d o c k , a n d Shaw,
J J . ,
c o n c u r .
Cobb, C . J . ,
r e c u s e s
h e r s e l f .
12 | October 30, 2009 |
0e75a457-1541-42c8-8ae2-871fd3fa1f51 | Kappa Sigma Fraternity, Kappa Nu Chapter v. Ryan Price-Williams | N/A | 1080662 | Alabama | Alabama Supreme Court | REL: 12/18/2009
Notice:
T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e
Reporter of Decisions,
Alabama
A p p e l l a t e
C o u r t s , 300 D e x t e r Avenue,
Montgomery,
Alabama
36104-3741
((334)
2 2 9 - 0 6 4 9 ) , o f
any t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may be made
b e f o r e t h e
o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1080662
Kappa Sigma F r a t e r n i t y , Kappa Nu Chapter
v.
Ryan P r i c e - W i l l i a m s
1081134
Kappa Sigma F r a t e r n i t y , Kappa Nu Chapter
v.
Ryan P r i c e - W i l l i a m s
Appeals from Mobile
C i r c u i t
Court
(CV-05-4221)
LYONS,
J u s t i c e .
I n a p p e a l no. 1080662, Kappa Sigma F r a t e r n i t y , Kappa Nu
C h a p t e r ("the c h a p t e r " ) ,
a p p e a l s f r o m a M a r c h 6, 2009,
o r d e r
o f t h e
M o b i l e C i r c u i t C o u r t t h a t e n f o r c e d an a g r e e m e n t b e t w e e n
t h e c h a p t e r a n d Ryan P r i c e - W i l l i a m s
s e t t l i n g
P r i c e - W i l l i a m s ' s
a c t i o n
a g a i n s t
t h e c h a p t e r .
P r i c e - W i l l i a m s
h a s moved t o
d i s m i s s
t h a t
a p p e a l
on t h e b a s i s
t h a t
t h i s
C o u r t
l a c k s
s u b j e c t - m a t t e r
j u r i s d i c t i o n
o f t h e a p p e a l .
I n a p p e a l no.
1081134, t h e c h a p t e r a p p e a l s f r o m an A p r i l 16, 2009, o r d e r o f
t h e
M o b i l e
C i r c u i t
C o u r t
t h a t
e n f o r c e d
i t s M a r c h 6, 2009,
o r d e r .
We d e n y P r i c e - W i l l i a m s ' s m o t i o n t o d i s m i s s
a p p e a l no.
1080662, a n d we
a f f i r m t h e t r i a l
c o u r t ' s
d e c i s i o n s i n b o t h
a p p e a l s .
F a c t u a l B a c k g r o u n d a n d P r o c e d u r a l
H i s t o r y
P r i c e - W i l l i a m s
was n o t a member o f t h e c h a p t e r b u t
v i s i t e d a p a r t y
h o s t e d b y t h e c h a p t e r on J a n u a r y 3 1 , 2004.
W h i l e a t t h e p a r t y ,
P r i c e - W i l l i a m s was a s s a u l t e d .
The r e c o r d
d o e s n o t d i s c l o s e t h e p r e c i s e
n a t u r e
o f
P r i c e - W i l l i a m s ' s
i n j u r i e s , b u t i t
i s
u n d i s p u t e d t h a t he s u s t a i n e d
s i g n i f i c a n t ,
p e r m a n e n t
i n j u r i e s as a r e s u l t o f t h e a s s a u l t .
2
1 0 8 0 6 6 2 ; 1 0 8 1 1 3 4
On November
28, 2 0 0 5 , P r i c e - W i l l i a m s s u e d K a p p a Sigma
N a t i o n a l F r a t e r n i t y ("the n a t i o n a l f r a t e r n i t y " ) , t h e c h a p t e r ,
and
G a b r i e l K e v i n Dean,
C h a r l e s B r a n d o n B a b e r , and
M i c h a e l
T a y l o r Howard, two o f whom w e r e members o f t h e c h a p t e r .
1
The
c o m p l a i n t a l l e g e d t h a t Dean, B a b e r , and Howard h a d p e r p e t r a t e d
t h e
a s s a u l t and
t h a t
t h e y
h a d done
so as
a g e n t s
o f t h e
n a t i o n a l
f r a t e r n i t y and o f t h e c h a p t e r .
The
f i r s t
c o u n t o f
t h e c o m p l a i n t s o u g h t r e c o v e r y f r o m t h e i n d i v i d u a l
d e f e n d a n t s
b a s e d on t h e a s s a u l t and f r o m t h e n a t i o n a l
f r a t e r n i t y and t h e
c h a p t e r b a s e d on a t h e o r y o f v i c a r i o u s
l i a b i l i t y
a r i s i n g
f r o m
t h e
a s s a u l t .
The
s e c o n d
c o u n t
o f t h e
c o m p l a i n t
s o u g h t
r e c o v e r y
f r o m
a l l
t h e d e f e n d a n t s ,
a l l e g i n g
t h a t
t h e y
h a d
n e g l i g e n t l y a n d / o r w a n t o n l y h o s t e d t h e p a r t y . The t h i r d
c o u n t
o f t h e c o m p l a i n t s o u g h t r e c o v e r y f r o m t h e n a t i o n a l
f r a t e r n i t y
and
f r o m
t h e c h a p t e r ,
a l l e g i n g
t h a t
t h e y
h a d
n e g l i g e n t l y
a n d / o r w a n t o n l y
f a i l e d t o c r e a t e , i m p l e m e n t , and f o l l o w
r u l e s
and r e g u l a t i o n s t h a t w o u l d have p r e v e n t e d t h e a s s a u l t .
The n a t i o n a l
f r a t e r n i t y and t h e c h a p t e r were r e p r e s e n t e d
by t h e same c o u n s e l .
A l t h o u g h t h e r e c o r d does n o t show when,
t h e
p a r t i e s
a g r e e
t h a t t h e
t r i a l
c o u r t
e n t e r e d
a
summary
1 D e a n and B a b e r w e r e members and o f f i c e r s o f t h e c h a p t e r ;
Howard was n o t a member.
3
10806 62; 1081134
j u d g m e n t i n f a v o r o f t h e n a t i o n a l f r a t e r n i t y on a l l c o u n t s .
The
i n d i v i d u a l
d e f e n d a n t s
n e v e r
a n s w e r e d t h e c o m p l a i n t
o r
o t h e r w i s e a p p e a r e d i n t h e a c t i o n .
C o u n s e l f o r
t h e c h a p t e r d i d
n o t
r e p r e s e n t
t h e i n d i v i d u a l
d e f e n d a n t s .
The
t r i a l
c o u r t
e n t e r e d a d e f a u l t j u d g m e n t a g a i n s t t h e i n d i v i d u a l
d e f e n d a n t s
on
May
10, 2007 , b u t i t d i d n o t d e t e r m i n e
t h e amount o f
damages t o be a w a r d e d .
As t o l i a b i l i t y ,
t h e c h a p t e r was t h e
s o l e r e m a i n i n g
d e f e n d a n t .
The a c t i o n was t r i e d t o a j u r y b e g i n n i n g on November 17,
2008.
A f t e r
c l o s i n g
a r g u m e n t s on November
20, 2008, b u t
b e f o r e t h e j u r y was c h a r g e d ,
P r i c e - W i l l i a m s and t h e c h a p t e r
e n t e r e d
i n t o
a
c o n f i d e n t i a l
s e t t l e m e n t
a g r e e m e n t .
The
a g r e e m e n t was n o t r e d u c e d t o a w r i t i n g b u t was s t a t e d b e f o r e
t h e
t r i a l c o u r t b y c o u n s e l f o r P r i c e - W i l l i a m s and c o u n s e l f o r
t h e c h a p t e r .
The r e c o r d i n c l u d e s t h e f o l l o w i n g t r a n s c r i p t o f
t h e i r
s t a t e m e n t s :
" [ P r i c e - W i l l i a m s ' s
c o u n s e l ] :
J u d g e ,
t h e
p a r t i e s ,
o r
a t
l e a s t
[ P r i c e - W i l l i a m s ] and
t h e
[ c h a p t e r ] ,
have
r e a c h e d
a
s e t t l e m e n t .
I t ' s
c o n f i d e n t i a l .
Of
c o u r s e
w e ' l l
a d v i s e
t h e c o u r t .
The [ c h a p t e r ] h a s a g r e e d t o p a y ... t o s e t t l e
t h e i r
[ s i c ]
l i a b i l i t y ,
w i t h
t h e r e m a i n i n g
l i a b i l i t y
an
amount t o be d e t e r m i n e d
b y t h e c o u r t .
"[The
t r i a l
c o u r t ] : Okay.
And you w i l l
s u b m i t
t o
me
a
p r o p o s e d
o r d e r
w i t h
t h e
a p p r o p r i a t e
f i n d i n g s ?
4
1080662;
1081134
"[The
c h a p t e r ' s
c o u n s e l ] :
W e ' l l
do
a
j o i n t
s t i p u l a t i o n and a p r o p o s e d
o r d e r .
"[The
t r i a l
c o u r t ] :
And
as
f a r
as
I
am
c o n c e r n e d ,
y ' a l l
a r e
f r e e
t o go,
and
I
w i l l
j u s t
t e l l
t h e
j u r y
t h a t
you
s h o o k
hands
and
l e f t
and
t h e r e ' s
n o t h i n g
e l s e f o r them t o d o .
" [ P r i c e - W i l l i a m s ' s
c o u n s e l ] :
U h - h u h .
T h a t
we
r e s o l v e d
o u r d i f f e r e n c e s
and w i t h o u t them i t w o u l d
have n e v e r g o t t e n
r e s o l v e d .
" [ P r i c e - W i l l i a m s ' s c o u n s e l ] :
And, J u d g e , as t h e
C o u r t i s a w a r e , we h a d c o n c e d e d
t h a t t h e
[ n a t i o n a l
f r a t e r n i t y ]
was
n o t
l i a b l e
a t
summary
j u d g m e n t
s t a g e .
B e c a u s e t h e r e i s s t i l l h a n g i n g o u t t h e r e
t h e
i n d i v i d u a l s
f o r
a
s h o r t
p e r i o d
o f
t i m e ,
[ t h e
c h a p t e r ' s
c o u n s e l ]
needs
a
--
I w o u l d
assume
a
[ R u l e ]
5 4 ( b ) [ , A l a . R. C i v . P.,]
o r d e r o r --
"[The c h a p t e r ' s c o u n s e l ] :
T h a t , o r -- t h a t , o r
p e r h a p s we c o u l d
s i m p l y
i n c l u d e i t i n t h e r e l e a s e
--
" [ P r i c e - W i l l i a m s ' s
c o u n s e l ] :
T h a t
w i l l be
-¬
"[The
c h a p t e r ' s
c o u n s e l ] :
--
t h e
n a t i o n a l
f r a t e r n i t y
--
" [ P r i c e - W i l l i a m s ' s
c o u n s e l ] : T h a t w i l l be
f i n e .
"[The c h a p t e r ' s c o u n s e l ] : A l l
I am i n t e r e s t e d i n
i s
--
" [ P r i c e - W i l l i a m s ' s
c o u n s e l ] :
F i n a l i t y .
"[The c h a p t e r ' s c o u n s e l ] :
-- b e t w e e n
y o u , y o u r
c l i e n t and
--
5
1 0 8 0 6 6 2 ; 1081134
" [ P r i c e - W i l l i a m s ' s c o u n s e l ] : The
f r a t e r n i t y .
"[The
c h a p t e r ' s
c o u n s e l ] : -- my
c l i e n t s .
" [ P r i c e - W i l l i a m s ' s
c o u n s e l ] :
T h a t ' s
r i g h t .
F r a t e r n i t i e s .
T h a t ' s
r i g h t .
"[The
c h a p t e r ' s
c o u n s e l ] : So t h a t we're --
" [ P r i c e - W i l l i a m s ' s c o u n s e l ] : W e ' l l i n c l u d e
t h a t
i n t o t h e r e l e a s e .
"[The
t r i a l
c o u r t ] : Okay.
"[The
c h a p t e r ' s
c o u n s e l ] : And t h a t o u g h t t o -¬
t h a t o u g h t t o -- and t h e n I may come t o t h e c o u r t
w i t h
r e g a r d
t o
some
s o r t
o f
a
[ R u l e ]
5 4 ( b )
a r r a n g e m e n t .
"[The
t r i a l
c o u r t ] : T h a t ' s
f i n e . "
The
t r i a l
c o u r t t h e n d i s m i s s e d t h e j u r y .
S u b s e q u e n t l y , a d i s a g r e e m e n t a r o s e b e t w e e n P r i c e - W i l l i a m s
and t h e c h a p t e r
r e g a r d i n g t h e t e r m s o f t h e s e t t l e m e n t .
P r i c e -
W i l l i a m s a r g u e d t h a t he i n t e n d e d t o r e l e a s e o n l y t h e n a t i o n a l
f r a t e r n i t y and t h e c h a p t e r ,
n o t t h e i n d i v i d u a l
d e f e n d a n t s - ¬
e i t h e r
as
i n d i v i d u a l s o r as a g e n t s
o f t h e c h a p t e r .
The
c h a p t e r
a r g u e d
t h a t
t h e
s e t t l e m e n t
a g r e e m e n t
i n c l u d e d
a
r e l e a s e
o f t h e n a t i o n a l
f r a t e r n i t y ,
t h e c h a p t e r ,
a n d t h e
i n d i v i d u a l
d e f e n d a n t s i n t h e i r
c a p a c i t i e s as a g e n t s o f t h e
c h a p t e r .
The c h a p t e r
c o n t e n d e d t h a t t h e o n l y
c l a i m s
P r i c e -
W i l l i a m s
h a d
r e s e r v e d
were
c l a i m s
a g a i n s t
t h e
i n d i v i d u a l
6
1 0 8 0 6 6 2 ; 1081134
d e f e n d a n t s i n t h e i r
i n d i v i d u a l
c a p a c i t i e s .
On December 2 3 ,
2008, P r i c e - W i l l i a m s a n d t h e c h a p t e r
e a c h
f i l e d a m o t i o n t o
e n f o r c e t h e s e t t l e m e n t a g r e e m e n t a c c o r d i n g t o t h o s e r e s p e c t i v e
i n t e r p r e t a t i o n s .
On J a n u a r y 5, 2009, b e f o r e t h e t r i a l
c o u r t
r u l e d on t h e
p a r t i e s '
m o t i o n s
t o e n f o r c e
t h e s e t t l e m e n t
a g r e e m e n t , i t
e n t e r e d
an o r d e r
a s s e s s i n g
damages
a g a i n s t
t h e
i n d i v i d u a l
d e f e n d a n t s .
The t r i a l
c o u r t made d e t a i l e d
f i n d i n g s o f f a c t
r e g a r d i n g t h e e v e n t s u n d e r l y i n g
P r i c e - W i l l i a m s ' s
c l a i m s a n d
t h e
l i a b i l i t y
o f t h e i n d i v i d u a l
d e f e n d a n t s .
R e g a r d i n g t h e
f i r s t
c o u n t o f t h e c o m p l a i n t ,
i t
c o n c l u d e d t h a t e a c h o f
t h e
i n d i v i d u a l d e f e n d a n t s h a d a c t e d n e g l i g e n t l y a n d w a n t o n l y
w i t h
r e s p e c t
t o t h e a s s a u l t .
The
t r i a l
c o u r t
d e t e r m i n e d
t h a t
Howard was n o t a member o f t h e c h a p t e r b u t t h a t Dean a n d B a b e r
were members a n d o f f i c e r s o f t h e c h a p t e r a n d t h a t t h e y "were
r e s p o n s i b l e
f o r m a i n t a i n i n g
o r d e r
a t t h e f r a t e r n i t y
h o u s e
t h r o u g h t h e i m p l e m e n t a t i o n a n d e n f o r c e m e n t o f an
a p p r o p r i a t e
r i s k management p r o g r a m " f o r t h e c h a p t e r .
Dean a n d B a b e r h e l d
t h o s e d u t i e s on t h e n i g h t o f t h e p a r t y a t w h i c h P r i c e - W i l l i a m s
was
a s s a u l t e d .
R e g a r d i n g t h e s e c o n d a n d t h i r d c o u n t s o f
t h e
c o m p l a i n t ,
t h e
t r i a l
c o u r t
h e l d
t h a t
Dean a n d B a b e r , i n
h o s t i n g t h e
p a r t y a n d f a i l i n g t o c r e a t e , i m p l e m e n t , a n d f o l l o w
7
10806 62;
1081134
r u l e s and
r e g u l a t i o n s
t h a t w o u l d have p r e v e n t e d t h e
a s s a u l t ,
a c t e d
n e g l i g e n t l y
and
w a n t o n l y
and
were
l i a b l e
t o
P r i c e -
W i l l i a m s .
B a s e d
on
i t s f i n d i n g s ,
t h e
t r i a l
c o u r t
a w a r d e d
P r i c e - W i l l i a m s $500,000 i n c o m p e n s a t o r y damages and
$750,000
i n
p u n i t i v e damages a g a i n s t
t h e
i n d i v i d u a l d e f e n d a n t s .
The
t r i a l
c o u r t
n o t e d :
"The
t o t a l
amount
o f
t h e
v e r d i c t
i s
t h e r e f o r e
$ 1 , 2 5 0 , 0 0 0 .
I t i s t h e
i n t e n t i o n o f
t h i s c o u r t
t h a t
t h e
v e r d i c t
r e p r e s e n t s
t h e
t o t a l
damages
t o
be
a w a r d e d
[ P r i c e - W i l l i a m s ]
f o r a l l damage[]
s u f f e r e d
by
h i m
as
a
r e s u l t o f
[ t h e
a s s a u l t ]
and
t h a t
t h e
i n d i v i d u a l
d e f e n d a n t s
a r e
e n t i t l e d
t o
a
s e t o f f
o f
t h e amount p a i d t o
[ P r i c e - W i l l i a m s ] by
[ t h e c h a p t e r ]
as
a
r e s u l t
o f
t h e
c o n f i d e n t i a l
p r o
t a n t o
s e t t l e m e n t . "
On
J a n u a r y
14,
2009,
t h e
c h a p t e r
r e s p o n d e d
t o
P r i c e -
W i l l i a m s ' s
m o t i o n
t o
e n f o r c e
t h e
s e t t l e m e n t
a g r e e m e n t
and
s u p p l e m e n t e d i t s own m o t i o n .
P r i c e - W i l l i a m s t h e n r e s p o n d e d t o
t h e
c h a p t e r ' s s u p p l e m e n t .
On
J a n u a r y
30,
2009, t h e
c h a p t e r
moved, u n d e r R u l e 5 9 ( e ) ,
A l a . R.
C i v . P.,
t o a l t e r , amend, o r
v a c a t e t h e
t r i a l
c o u r t ' s
J a n u a r y 5, 2009, j u d g m e n t
a s s e s s i n g
damages a g a i n s t
t h e
i n d i v i d u a l d e f e n d a n t s .
I n
i t s R u l e
59
m o t i o n ,
t h e
c h a p t e r
a r g u e d
t h a t
i n
t h e
J a n u a r y 5, 2009, j u d g m e n t t h e
t r i a l
c o u r t
had
a u t h o r i t y
o n l y
t o d e t e r m i n e t h e amount o f damages and
t h a t i t had
i m p r o p e r l y
made
d e t e r m i n a t i o n s
r e g a r d i n g
l i a b i l i t y ;
had
i m p r o p e r l y
8
1 0 8 0 6 6 2 ; 1081134
e n t e r e d
j u d g m e n t s
a g a i n s t
t h e
i n d i v i d u a l
d e f e n d a n t s
w i t h
r e s p e c t t o t h e t h i r d c o u n t o f t h e c o m p l a i n t , w h i c h h a d b e e n
s t a t e d o n l y a g a i n s t t h e n a t i o n a l f r a t e r n i t y and t h e c h a p t e r ;
and h a d i m p r o p e r l y made d e t e r m i n a t i o n s r e g a r d i n g t h e e x i s t e n c e
o f
an a g e n c y
r e l a t i o n s h i p
b e t w e e n Dean and B a b e r and t h e
c h a p t e r .
P r i c e - W i l l i a m s moved t o s t r i k e t h e c h a p t e r ' s R u l e 59
m o t i o n ,
a r g u i n g t h a t t h e c h a p t e r
l a c k e d s t a n d i n g b e c a u s e t h e
j u d g m e n t
was
a g a i n s t
o n l y
t h e
i n d i v i d u a l
d e f e n d a n t s
and
c o u n s e l
f o r t h e c h a p t e r
d i d n o t r e p r e s e n t
t h e
i n d i v i d u a l
d e f e n d a n t s .
A t a F e b r u a r y 6, 2009, h e a r i n g on t h e m o t i o n s t o e n f o r c e
t h e s e t t l e m e n t a g r e e m e n t , t h e t r i a l c o u r t d e n i e d t h e c h a p t e r ' s
m o t i o n
t o
a l t e r ,
amend,
o r v a c a t e
t h e j u d g m e n t
a s s e s s i n g
damages a g a i n s t t h e i n d i v i d u a l d e f e n d a n t s .
I n d i s c u s s i n g t h e
t e r m s o f t h e s e t t l e m e n t
a g r e e m e n t
w i t h
c o u n s e l ,
t h e
t r i a l
c o u r t
n o t e d
t h a t i f t h e c h a p t e r
was
c o n c e r n e d
w i t h
f u l l y
p r o t e c t i n g
i t s e l f ,
t h e
r e l e a s e
c o u l d
i n c l u d e
l a n g u a g e
r e l e a s i n g
t h e
c h a p t e r
and
i t s a g e n t s .
P r i c e - W i l l i a m s ' s
c o u n s e l e x p l a i n e d h i s p o s i t i o n t h a t t h e c h a p t e r ' s c o n c e r n was
w i t h
v i c a r i o u s
l i a b i l i t y
a n d t h a t a b r o a d e r
r e l e a s e o f t h e
c h a p t e r ' s
" a g e n t s " w o u l d
a f f e c t
P r i c e - W i l l i a m s ' s a b i l i t y t o
r e c o v e r f r o m a l i a b i l i t y - i n s u r a n c e
c a r r i e r b a s e d on c o v e r a g e
9
1 0 8 0 6 6 2 ; 1081134
o f two
o f t h e i n d i v i d u a l d e f e n d a n t s a r i s i n g f r o m t h e i r a c t s
as
a g e n t s
o f
t h e
n a t i o n a l
f r a t e r n i t y
o r
o f
t h e
c h a p t e r .
S u b s e q u e n t l y , t h e
t r i a l c o u r t c o n c l u d e d
t h a t t h e r e l e a s e w o u l d
s a t i s f y
t h e
s e t t l e m e n t
a g r e e m e n t
i f i t s t a t e d
t h a t
P r i c e -
W i l l i a m s
r e l e a s e d
a l l c l a i m s
a g a i n s t
t h e
c h a p t e r
b a s e d
on
v i c a r i o u s
l i a b i l i t y .
The
c h a p t e r ' s
c o u n s e l r e q u e s t e d
t h a t
t h e
t r i a l
c o u r t
o r d e r
t h a t t h e w o r d " a g e n t s "
be
i n c l u d e d i n
t h e
r e l e a s e
b e c a u s e ,
he
a r g u e d ,
a n y t h i n g
l e s s w o u l d
n o t
f u l l y
p r o t e c t t h e c h a p t e r .
The
t r i a l c o u r t d e c l i n e d , r e a s o n i n g
t h a t
t h e
c h a p t e r
w o u l d
be
f u l l y
p r o t e c t e d
by
a
r e l e a s e
o f a l l
v i c a r i o u s
l i a b i l i t y
and
t h a t
c o u n s e l
f o r t h e
c h a p t e r
had
no
b a s i s
f o r
a s k i n g
f o r
r e l i e f
f o r
t h e
i n d i v i d u a l
d e f e n d a n t s
b e c a u s e
t h e y
were
n o t
h i s
c l i e n t s .
The
t r i a l
c o u r t
t h e n
o r d e r e d
t h a t t h e p a r t i e s e x c h a n g e a r e l e a s e and t h e
s e t t l e m e n t
f u n d s w i t h i n 30
d a y s .
On
M a r c h
6,
2009,
t h e
t r i a l
c o u r t
e n t e r e d
a
w r i t t e n
o r d e r ,
f i n d i n g as f o l l o w s :
" [ T ] h e s e t t l e m e n t
o f r e c o r d as s t a t e d i n open
c o u r t
on November 20, 2008, r e l i e v e d t h e . . .
c h a p t e r ,
f r o m
a l l
l i a b i l i t y ,
i n c l u d i n g any
l i a b i l i t y
t h a t may
be
a s s e r t e d
a g a i n s t
i t
b a s e d
upon
any
v i c a r i o u s
l i a b i l i t y
t h e o r i e s , r e l a t i n g
t o [ P r i c e - W i l l i a m s ' s ]
c l a i m s
a g a i n s t
i t
i n
t h i s
l a w s u i t .
T h i s
c o u r t
f u r t h e r f i n d s t h a t [ P r i c e - W i l l i a m s ' s ]
c l a i m s
a g a i n s t
t h e
i n d i v i d u a l s
as
a l l e g e d
i n
t h e
C o m p l a i n t ,
10
1080662; 1081134
i n c l u d i n g
t h e
c a p a c i t i e s
a s s e r t e d
t h e r e i n ,
w e r e
r e s e r v e d and e x c l u d e d f r o m t h e s e t t l e m e n t . "
The
t r i a l c o u r t g r a n t e d P r i c e - W i l l i a m s ' s
m o t i o n t o e n f o r c e t h e
s e t t l e m e n t a g r e e m e n t
and d e n i e d
t h e c h a p t e r ' s
m o t i o n .
The
t r i a l
c o u r t
o r d e r e d
P r i c e - W i l l i a m s t o
e x e c u t e
a
r e l e a s e
c o m p l i a n t w i t h t h e c o u r t ' s f i n d i n g s and o r d e r e d t h e c h a p t e r t o
" t e n d e r t h e s e t t l e m e n t p r o c e e d s
t o [ P r i c e - W i l l i a m s ' s ] c o u n s e l
on o r b e f o r e M a r c h 9, 2009."
The
t r i a l c o u r t f u r t h e r s t a t e d :
"Upon t h e c o n s u m m a t i o n o f t h e s e t t l e m e n t ... t h i s m a t t e r
w i l l
be deemed d i s m i s s e d w i t h p r e j u d i c e , e a c h p a r t y t o b e a r i t s own
c o s t . "
On M a r c h 9, 2009, t h e c h a p t e r
f i l e d a n o t i c e o f a p p e a l t o
t h i s C o u r t .
T h a t a p p e a l was d o c k e t e d as a p p e a l no.
1 0 8 0 6 6 2 .
2
The
c h a p t e r
d i d n o t p a y t h e s e t t l e m e n t
p r o c e e d s
t o
P r i c e -
W i l l i a m s as o r d e r e d by t h e M a r c h 6, 2009, o r d e r .
N o r d i d t h e
c h a p t e r a t t h a t t i m e move t o a l t e r , amend, o r v a c a t e t h e M a r c h
6, 2009, o r d e r u n d e r R u l e 59, A l a . R. C i v . P., o r r e q u e s t a
s t a y o f t h e o r d e r u n d e r R u l e 62, A l a . R. C i v . P.
On M a r c h 10, 2009, P r i c e - W i l l i a m s moved t h e t r i a l
c o u r t
t o
f i n d t h e c h a p t e r i n c i v i l c o n t e m p t u n d e r R u l e 70A, A l a . R.
2On M a r c h 5, 2009, t h e c h a p t e r
f i l e d a p e t i t i o n f o r a w r i t
o f mandamus, w h i c h
t h i s C o u r t
d e n i e d on A p r i l 7, 2009 ( c a s e
no. 1 0 8 0 6 4 9 ) .
11
10806
62; 1081134
C i v .
P.,
and t o i m p o s e s a n c t i o n s f o r i t s f a i l u r e
t o p a y t h e
s e t t l e m e n t p r o c e e d s
as r e q u i r e d b y t h e M a r c h 6, 2009,
o r d e r .
On M a r c h 11, 2009, t h e c h a p t e r r e s p o n d e d t o P r i c e - W i l l i a m s ' s
m o t i o n
and moved t o s t a y t h e p r o c e e d i n g s
i n t h e
t r i a l
c o u r t
p e n d i n g a r e s o l u t i o n o f a p p e a l no.
1080662.
A t
a
h e a r i n g
on
P r i c e - W i l l i a m s ' s and
t h e
c h a p t e r ' s
m o t i o n s
on
A p r i l
16,
2009,
t h e
t r i a l
c o u r t
d e n i e d
t h e
c h a p t e r ' s m o t i o n t o s t a y .
The
t r i a l c o u r t o r d e r e d t h e c h a p t e r
t o
c o m p l y
w i t h
t h e M a r c h
6,
2009,
o r d e r
and
t o p a y
t h e
s e t t l e m e n t p r o c e e d s
t o P r i c e - W i l l i a m s w i t h i n 24 h o u r s .
A t a
h e a r i n g
on t h e
f o l l o w i n g
d a y ,
A p r i l
17, 2009,
t h e
c h a p t e r
o r a l l y r e n e w e d i t s
m o t i o n t o s t a y t h e p r o c e e d i n g s .
The
t r i a l
c o u r t
a g a i n
d e n i e d
t h e m o t i o n
and
o r d e r e d
t h e
c h a p t e r
t o
c o m p l y w i t h t h e A p r i l
16, 2009, o r d e r o r t o f a c e s a n c t i o n s .
The
t r a n s c r i p t
o f t h a t h e a r i n g shows
t h a t
c o u n s e l
f o r t h e
c h a p t e r c o m p l i e d ,
s t a t i n g :
" I w i s h and i n t e n d t o m a i n t a i n
...
my
c l i e n t ' s
r i g h t s t o p u r s u e t h e i s s u e s t h a t h a v e b e e n
r a i s e d
on a p p e a l , and d o n ' t i n t e n d t o w a i v e t h o s e
r i g h t s o r a g r e e t o
s a t i s f a c t i o n
o f t h e o r d e r ... o f t h i s C o u r t t h a t t h i s payment
i s b e i n g t e n d e r e d . "
The c h a p t e r
f i l e d a n o t i c e o f a p p e a l o f
t h e
A p r i l
16, 2009, o r d e r on May 27, 2 0 0 9 .
T h a t a p p e a l
was
d o c k e t e d as a p p e a l no.
1081134.
12
1 0 8 0 6 6 2 ; 1081134
A n a l y s i s
I .
P r i c e - W i l l i a m s ' s M o t i o n t o D i s m i s s A p p e a l No.
1080662
I n P r i c e - W i l l i a m s ' s m o t i o n t o d i s m i s s a p p e a l no.
1 0 8 0 6 6 2 ,
he
a r g u e s
t h a t
t h i s
C o u r t
l a c k s
s u b j e c t - m a t t e r
j u r i s d i c t i o n
b e c a u s e ,
he
s a y s ,
t h e
a p p e a l
i s n o t
f r o m
a
f i n a l
j u d g m e n t .
P r i c e - W i l l i a m s c o n t e n d s t h a t t h e
t r i a l
c o u r t ,
i n i t s M a r c h
6,
2009,
o r d e r ,
e x p r e s s l y
r e t a i n e d
j u r i s d i c t i o n
u n t i l
t h e
s e t t l e m e n t
a g r e e m e n t
was
consummated.
B e c a u s e
t h e
c h a p t e r
f a i l e d
t o
pay
t h e
s e t t l e m e n t
p r o c e e d s
b e f o r e
i t
f i l e d
i t s
n o t i c e
o f
a p p e a l ,
P r i c e - W i l l i a m s
c o n t e n d s
t h a t
t h e M a r c h
6,
2009, o r d e r n e v e r became f i n a l and
t h a t t h e
t r i a l
c o u r t
n e v e r
l o s t
j u r i s d i c t i o n .
The
c h a p t e r
r e s p o n d s ,
a r g u i n g
t h a t ,
b e c a u s e t h e M a r c h 6, 2009, o r d e r
r e s o l v e d
a l l i s s u e s b e t w e e n
t h e r e m a i n i n g p a r t i e s ,
i t was
a
f i n a l , a p p e a l a b l e j u d g m e n t .
T h i s
C o u r t
has
j u r i s d i c t i o n
t o
c o n s i d e r
a p p e a l
no.
1080662 e v e n
i f t h e
M a r c h
6,
2 0 0 9 ,
o r d e r
was
n o t
a
f i n a l
j u d g m e n t .
R u l e
4 ( a ) ( 1 ) ( A ) ,
A l a .
R.
App.
P.,
e x p r e s s l y
c o n t e m p l a t e s
a p p e a l s
f r o m
o r d e r s
" g r a n t i n g ,
c o n t i n u i n g ,
m o d i f y i n g ,
r e f u s i n g , o r d i s s o l v i n g an i n j u n c t i o n , o r
r e f u s i n g
t o d i s s o l v e o r
t o m o d i f y an
i n j u n c t i o n . "
"An
i n j u n c t i o n
i s
d e f i n e d
as
' [ a ]
c o u r t
o r d e r
commanding
o r
p r e v e n t i n g
an
a c t i o n . ' B l a c k ' s
Law
D i c t i o n a r y 788
( 7 t h ed.
1 9 9 9 ) . "
D a w k i n s
13
1 0 8 0 6 6 2 ; 1081134
v. W a l k e r , 794 So. 2d 333, 335 ( A l a . 2 0 0 1 ) .
The t r i a l
c o u r t ' s
M a r c h 6, 2009, o r d e r commanded t h e c h a p t e r t o t a k e
s p e c i f i c
a c t i o n - - t o p a y t h e s e t t l e m e n t
p r o c e e d s t o P r i c e - W i l l i a m s b y
M a r c h 9, 2009.
B e c a u s e t h e M a r c h 6, 2009, o r d e r commands t h e
c h a p t e r t o t a k e a c t i o n , we c o n c l u d e t h a t i t
i s i n j u n c t i v e i n
n a t u r e .
See D a w k i n s , 794 So. 2d a t 335.
"An a p p e a l may be
t a k e n
f r o m
'any i n t e r l o c u t o r y o r d e r
g r a n t i n g ,
c o n t i n u i n g ,
m o d i f y i n g ,
r e f u s i n g , o r d i s s o l v i n g an i n j u n c t i o n , o r r e f u s i n g
t o
d i s s o l v e o r t o m o d i f y an i n j u n c t i o n . '
R u l e
4 ( a ) ( 1 ) ( A ) ,
A l a .
R. App. P."
Watson v. W a t s o n , 910 So. 2d 765, 768 ( A l a .
2 0 0 5 ) .
3
J u s t i c e M u r d o c k ' s o p i n i o n
c o n c u r r i n g i n t h e r a t i o n a l e i n
p a r t a n d c o n c u r r i n g i n
t h e r e s u l t r e l i e s on t h e s e v e r a l c a s e s
f o r
t h e p r o p o s i t i o n
t h a t
a l l r u l i n g s e n f o r c i n g a
s e t t l e m e n t
a r e
a p p e a l a b l e a s f i n a l j u d g m e n t s .
I n C i n c i n n a t i
I n s u r a n c e
3We n o t e t h a t a p r o c e e d i n g t o e n f o r c e a s e t t l e m e n t
i s
i n
t h e n a t u r e o f an a c t i o n on a c o n t r a c t
t h a t l e a d s t o t h e e n t r y
o f a money j u d g m e n t .
I n t h i s a c t i o n , t h e t r i a l
c o u r t
i n s t e a d
e n f o r c e d
t h e p a r t i e s '
s e t t l e m e n t
a g r e e m e n t
b y way o f an
i n j u n c t i o n .
H o w e v e r , t h e c h a p t e r h a s n o t a r g u e d on a p p e a l t h e
i m p r o p r i e t y
o f i n j u n c t i v e r e l i e f b a s e d on t h e a d e q u a c y o f a
remedy a t l a w . U n i t e d
S e r v s . A u t o . A s s ' n v. A l l e n , 519 So. 2d
506,
508
( A l a . 1 9 8 8 ) ( " A n i n j u n c t i o n i s t o be i s s u e d
o n l y t o
p r e v e n t s u b s t a n t i a l i n j u r y where no a d e q u a t e remedy a t l a w
i s
a v a i l a b l e
" ) . A c c o r d i n g l y ,
f o r
p u r p o s e s o f t h i s
a p p e a l ,
we
assume,
w i t h o u t
d e c i d i n g ,
t h e p r o p r i e t y
o f
i n j u n c t i v e
r e l i e f u n d e r t h e c i r c u m s t a n c e s h e r e
p r e s e n t e d .
14
1 0 8 0 6 6 2 ; 1081134
Cos.
v.
B a r b e r
I n s u l a t i o n , I n c . ,
946
So.
2d
441 ,
449
( A l a .
2 0 0 6 ) , h o w e v e r , t h e r e
i s no
i n d i c a t i o n
t h a t t h e
t r i a l
c o u r t
e n t e r e d
an o r d e r ,
as i n t h i s c a s e ,
c o m p e l l i n g c o m p l i a n c e
and
d e c l i n i n g
t o
d i s m i s s
t h e
a c t i o n .
The
same c a n
be
s a i d
o f
J o n e s v. Stedman, 595
So. 2d 1355
( A l a . 1 9 9 2 ) , and
P h i l l i p s
v.
K n i g h t , 559 So. 2d 564
( A l a . 1 9 9 0 ) .
C o n t r a c t o r S u c c e s s G r o u p ,
I n c .
v.
S e r v i c e
T h r u s t
O r g a n i z a t i o n ,
I n c . ,
681
So.
2d
212
( A l a .
C i v . App.
1 9 9 6 ) , a n o t h e r
c a s e c i t e d by J u s t i c e M u r d o c k ,
i s more a n a l o g o u s t o t h i s c a s e ;
t h e
t r i a l
c o u r t t h e r e
e n t e r e d
an
o r d e r
h o l d i n g
a
s e t t l e m e n t
a g r e e m e n t
t o
be
v a l i d
and
e n f o r c e a b l e and o r d e r i n g t h e p a r t i e s t o e x e c u t e
t h e a g r e e m e n t
and t o c o m p l y w i t h
i t .
H o w e v e r , t h e i s s u e o f a p p e a l a b i l i t y i s
n o t d i s c u s s e d .
Mays v.
J u l i a n L e C r a w & Co.,
807
So.
2d
551,
554
( A l a . C i v . App.
2 0 0 2 ) , i n v o l v e d an
a p p e a l
f r o m an
o r d e r
e n t e r i n g
a
summary
j u d g m e n t
and
r e f u s i n g
t o
e n f o r c e
a
s e t t l e m e n t a g r e e m e n t .
N e r o v. C h a s t a n g , 358
So.
2d 740,
743
( A l a .
C i v .
App.
1 9 7 8 ) ,
i n v o l v e d
an
a p p e a l
f r o m
an
o r d e r
g r a n t i n g
a m o t i o n t o d i s m i s s b a s e d on
an
a l l e g e d
s e t t l e m e n t
a g r e e m e n t .
J u s t i c e M u r d o c k ' s o p i n i o n a l s o r e l i e s u p o n t h i s
C o u r t ' s
r u l i n g i n t h e
i n i t i a l
a p p e a l by I n g r a m i n I n g r a m v. P o l l o c k ,
15
1 0 8 0 6 6 2 ; 1081134
557
So.
2d 1199,
1199
( A l a . 1 9 8 9 ) ,
i n w h i c h
t h e
t r i a l
c o u r t
h a d u p h e l d a s e t t l e m e n t a n d h a d
s t a t e d
t h a t , upon n o t i c e
o f
c o n s u m m a t i o n o f t h e s e t t l e m e n t , t h e
t r i a l c o u r t w o u l d d i s m i s s
t h e
a c t i o n
w i t h o u t
p r e j u d i c e .
Of
c o u r s e ,
a
d i f f e r e n t
s i t u a t i o n i s p r e s e n t e d h e r e i n t h a t t h e
t r i a l
c o u r t o r d e r e d
t h e c h a p t e r t o make p a y m e n t b y a d a t e
c e r t a i n as o p p o s e d t o
m e r e l y
w i t h h o l d i n g e n t r y o f an
o r d e r d i s m i s s i n g
t h e
a c t i o n
u n t i l
n o t i c e
t h a t c o n s u m m a t i o n o f t h e s e t t l e m e n t h a d
t a k e n
p l a c e .
I n I n g r a m t h i s C o u r t n o t e d t h a t i n t h e f o r m e r
a p p e a l
i t h a d
i n i t i a l l y
r e m a n d e d t h e c a u s e f o r t h e e n t r y o f a
f i n a l
a p p e a l a b l e o r d e r b u t
t h a t , b e f o r e t h e
t r i a l
c o u r t c o u l d a c t
upon t h e remand o r d e r , " t h i s C o u r t r e c o n s i d e r e d i t s r u l i n g
a n d
h e l d t h a t t h e o r d e r a p p e a l e d f r o m was
f i n a l a n d t h a t t h e t i m e
f o r
f i l i n g a p o s t j u d g m e n t
m o t i o n o r an a p p e a l " h a d r u n .
557
So.
2d a t 1199.
T h i s C o u r t
f u r t h e r n o t e d t h a t t h e o r d e r o f
d i s m i s s a l was w i t h o u t p r e j u d i c e t o t h e
f i l i n g o f a m o t i o n f o r
r e l i e f f r o m t h e j u d g m e n t p u r s u a n t t o R u l e 6 0 , A l a . R. C i v . P.,
o r any o t h e r a p p r o p r i a t e p o s t j u d g m e n t
m o t i o n .
I n I n g r a m
t h i s
C o u r t d i d n o t
o f f e r any
a n a l y s i s t o
j u s t i f y
i t s r u l i n g
t h a t
t h e
t r i a l
c o u r t ' s o r d e r was
a f i n a l
j u d g m e n t .
16
1 0 8 0 6 6 2 ; 1081134
A f t e r t h e d i s m i s s a l o f h i s
i n i t i a l
a p p e a l , I n g r a m
f i l e d
a R u l e 60 m o t i o n , w h i c h t h e
t r i a l
c o u r t d e n i e d .
When I n g r a m
f i l e d
an a p p e a l
f r o m
t h e d e n i a l
o f t h e R u l e 60
m o t i o n ,
t h e
p r o b l e m
o f
p e r m i t t i n g a
R u l e
60
m o t i o n
t o
s e r v e
as
a
s u b s t i t u t e
f o r an a p p e a l was
d i s p o s e d o f w i t h t h e
s t a t e m e n t
t h a t u n d e r " u n d e r t h e p e c u l i a r c i r c u m s t a n c e s o f t h i s c a s e , t h e
R u l e 6 0 ( b )
g r o u n d s p r o v i d e a v a l i d b a s i s f o r r e v i e w o f
t h e
s u b s t a n t i v e g r o u n d s f o r r e l i e f
as r e q u e s t e d . "
557
So. 2d a t
1200.
The
p e c u l i a r
c i r c u m s t a n c e s
c o n s i s t e d
o f
two
c o n t i n u a n c e s
o f
t h e
h e a r i n g on
t h e
m o t i o n
c h a l l e n g i n g t h e
o r d e r e n f o r c i n g t h e s e t t l e m e n t , one
o c c a s i o n e d b y
i l l n e s s o f
t h e
t r i a l
j u d g e
a n d
a n o t h e r
b y
a
s c h e d u l i n g
c o n f l i c t
o f
m o v a n t ' s c o u n s e l .
No
a u t h o r i t y i s c i t e d
t h a t w o u l d
p r e v e n t
t h e
a p p l i c a b i l i t y o f R u l e 5 9 . 1 ,
A l a . R.
C i v . P.,
u n d e r
s u c h
c i r c u m s t a n c e s
i f t h e
o r d e r
i n I n g r a m w e r e
i n d e e d
a
f i n a l
j u d g m e n t .
Of
c o u r s e ,
h a d
t h e
C o u r t
s t o o d b y
i t s
i n i t i a l
r u l i n g
i n t h e f o r m e r
a p p e a l , t h e m o v a n t w o u l d n o t h a v e b e e n
r e l e g a t e d t o r e l i a n c e upon R u l e 6 0 , a n d t h e d u b i o u s p r o c e d u r a l
r u l i n g i n I n g r a m w o u l d n o t h a v e b e e n n e c e s s a r y .
C o n s e q u e n t l y ,
a t m o s t , t h e r u l i n g i n t h e f o r m e r a p p e a l r e f e r r e d t o i n I n g r a m
c o n s t i t u t e s
no more t h a n
p h y s i c a l
p r e c e d e n t
a n d
i s n o t
an
17
10806 62;
1081134
a d j u d i c a t i o n o f t h e s t a t u s o f t h e o r d e r a t i s s u e i n I n g r a m
as
a
f i n a l
j u d g m e n t .
M o r e o v e r ,
e v e n
i t d o e s
c o n s t i t u t e
an
a d j u d i c a t i o n
on
t h e
m e r i t s
o f
t h e
i s s u e
o f
f i n a l i t y
o f
t h e
t r i a l
c o u r t ' s
o r d e r
e n f o r c i n g
t h e
s e t t l e m e n t ,
t h e
f a c t s
o f
I n g r a m - - w h e r e
t h e
t r i a l
c o u r t
m e r e l y
i m p o s e d
a
n e g a t i v e
r e s t r a i n t
as o p p o s e d t o a m a n d a t o r y i n j u n c t i o n - - a r e
c l e a r l y
d i s t i n g u i s h a b l e f r o m t h e
t r i a l
c o u r t ' s a c t i o n i n t h e
i n s t a n t
c a s e .
B e c a u s e
we
c o n c l u d e
t h a t
t h e
t r i a l
c o u r t ' s
M a r c h
6,
2009, o r d e r was
i n j u n c t i v e i n n a t u r e
and,
t h e r e f o r e , t h a t
an
a p p e a l
may
be
t a k e n
f r o m
i t on
t h a t
b a s i s , we
d e n y
P r i c e -
W i l l i a m s ' s m o t i o n t o d i s m i s s
a p p e a l
no.
1 0 8 0 6 6 2 .
I I .
A p p e a l No.
1081134
On
A p r i l 16, 2009, t h e
t r i a l c o u r t o r d e r e d
t h e c h a p t e r
t o
c o m p l y w i t h
t h e
c o u r t ' s M a r c h
6,
2009,
o r d e r
by
p a y i n g
t h e
s e t t l e m e n t
p r o c e e d s
t o P r i c e - W i l l i a m s w i t h i n 24
h o u r s .
The
c h a p t e r
d i d so b u t
t h e n a p p e a l e d t h e
t r i a l
c o u r t ' s
A p r i l
16,
2009, o r d e r .
I n a p p e a l
no.
1081134, t h e c h a p t e r
a r g u e s
t h a t
t h e
t r i a l
c o u r t
l a c k e d
j u r i s d i c t i o n
t o
e n t e r
t h e
A p r i l
16,
2009, o r d e r and a s k s t h i s C o u r t t o i n s t r u c t P r i c e - W i l l i a m s t o
r e t u r n t h e
s e t t l e m e n t
p r o c e e d s p e n d i n g t h e outcome o f
a p p e a l
18
1 0 8 0 6 6 2 ; 1081134
no. 1080662.
S p e c i f i c a l l y ,
t h e c h a p t e r a r g u e s
t h a t t h e
t r i a l
c o u r t
l o s t
j u r i s d i c t i o n o v e r m a t t e r s
p e r t a i n i n g t o t h e M a r c h
6, 2009, o r d e r once t h e c h a p t e r had
f i l e d a n o t i c e o f
a p p e a l
o f
t h a t o r d e r .
P r i c e - W i l l i a m s c o n t e n d s
t h a t t h e
t r i a l
c o u r t
r e t a i n e d
j u r i s d i c t i o n
t o
e n t e r
t h e
A p r i l
16,
2009,
o r d e r ,
b e c a u s e , he a r g u e s ,
t h a t o r d e r was
c o l l a t e r a l t o t h e M a r c h
6,
2009, o r d e r .
B e c a u s e
t h e
M a r c h
6,
2009,
o r d e r
was
an
i n j u n c t i o n
r e q u i r i n g p e r f o r m a n c e o f a s p e c i f i c a c t , we n e e d n o t
d e t e r m i n e
w h e t h e r t h e A p r i l 16, 2009, o r d e r was
c o l l a t e r a l t o a p p e a l
no.
1 0 8 0 6 6 2 .
An
a p p e a l
o f an o r d e r i m p o s i n g
an
i n j u n c t i o n
d o e s
n o t
d i v e s t
t h e
t r i a l
c o u r t
o f
j u r i s d i c t i o n
t o
e n f o r c e i t s
o r d e r i f t h a t o r d e r i s n o t s t a y e d p e n d i n g
a p p e a l .
See,
e.g.,
R u l e 6 2 ( a ) , A l a . R. C i v . P. ( " U n l e s s o t h e r w i s e o r d e r e d by
t h e
c o u r t , an
i n t e r l o c u t o r y o r d e r o r
f i n a l j u d g m e n t i n an
a c t i o n
f o r
an
i n j u n c t i o n
...
s h a l l
n o t be
s t a y e d d u r i n g t h e p e r i o d
a f t e r
i t s e n t r y and
u n t i l
an
a p p e a l
i s t a k e n
o r d u r i n g
t h e
p e n d e n c y
o f
an
a p p e a l . " ) .
See
a l s o
U n i o n
O i l
Co.
o f
C a l i f o r n i a v. L e a v e l l , 220 F.3d
562, 565-66 ( 7 t h C i r . 2 0 0 0 ) ( " A
n o t i c e
o f
a p p e a l
does
n o t
s t a y
e n f o r c e m e n t
o f
a
d i s t r i c t
c o u r t ' s
o r d e r .
...
A
j u d g e
may--and s h o u l d - - e n f o r c e
an
un-
s t a y e d i n j u n c t i o n w h i l e an a p p e a l p r o c e e d s .
...
C h a r l e s
A l a n
19
1 0 8 0 6 6 2 ; 1081134
W r i g h t ,
A r t h u r
R.
M i l l e r
& E d w a r d
H.
C o o p e r ,
16
F e d e r a l
P r a c t i c e and P r o c e d u r e § 3921.2 (2d e d . 1 9 9 6 ) .
O t h e r w i s e ,
t h e
j u d g e d e p r i v e s
t h e p r e v a i l i n g p a r t i e s o f t h e b e n e f i t o f
t h e i r
j u d g m e n t and
r e w a r d s d e f i a n c e .
A n o t i c e o f a p p e a l
' d i v e s t s
t h e
d i s t r i c t
c o u r t
o f i t s c o n t r o l o v e r t h o s e
a s p e c t s
o f
t h e
c a s e i n v o l v e d i n t h e
a p p e a l . '
G r i g g s
v.
P r o v i d e n t
Consumer
D i s c o u n t
Co.,
459
U.S.
56,
58,
103
S.
C t .
400,
74
L.
Ed.
2d
225
( 1 9 8 2 ) ( e m p h a s i s a d d e d ) , b u t
w h e t h e r t h e
a d d r e s s e e o f
an
i n j u n c t i o n
has
c o m p l i e d
i s n o t
a
s u b j e c t
' i n v o l v e d
i n
t h e
a p p e a l . ' " ) .
A c c o r d i n g l y ,
t h e p e n d e n c y o f a p p e a l
no.
1080662
d i d
n o t d i v e s t t h e
t r i a l
c o u r t o f j u r i s d i c t i o n t o e n f o r c e i t s
M a r c h 6, 2009,
o r d e r .
The
c h a p t e r
a r g u e s
t h a t
t h e
t r i a l
c o u r t ' s
r e q u i r e m e n t
t h a t i t c o m p l y w i t h t h e M a r c h 6, 2009, o r d e r w i t h i n 24
h o u r s
o f t h e e n t r y o f i t s A p r i l
16, 2009, o r d e r
l e f t i t w i t h o u t
t h e
a b i l i t y
t o o b t a i n a s t a y .
However, t h e c h a p t e r
n e v e r s o u g h t
a s t a y f r o m t h e
t r i a l
c o u r t w i t h i n t h e 2 4 - h o u r p e r i o d
a f t e r
e n t r y o f i t s o r d e r
o f A p r i l
16, 2009. Had
i t done so and
had
t h e
o r d e r b e e n d e n i e d ,
t h e
c h a p t e r
c o u l d have t h e n s o u g h t
a
s t a y
o f v e r y
l i m i t e d
d u r a t i o n
f r o m
t h e
t r i a l
c o u r t
p e n d i n g
e m e r g e n c y
a p p e l l a t e p r o c e d u r e s .
See,
e.g.,
R u l e
2 1 ( c )
and
( e ) ( 4 ) ,
A l a .
R.
App.
P.
( a l l o w i n g a p a r t y
t o
a p p l y
f o r
an
20
1080662; 1081134
e x t r a o r d i n a r y
w r i t
where
t h e
" p a r t y
s e e k s
e m e r g e n c y
and
i m m e d i a t e
a p p e l l a t e
r e v i e w " ) ;
R u l e
27,
A l a . R.
App.
P
( a l l o w i n g a p a r t y t o f i l e a m o t i o n w i t h t h e a p p e l l a t e c o u r t ) .
A c c o r d i n g l y , we c a n n o t a g r e e t h a t t h e c h a p t e r
l a c k e d t h e means
t o
o b t a i n a s t a y o f t h e t r i a l
c o u r t ' s M a r c h 6, 2009,
o r d e r .
I I I .
A p p e a l No.
1080662
The c h a p t e r
a l s o c o n t e n d s t h a t t h e t r i a l
c o u r t e r r e d i n
d e n y i n g
i t s m o t i o n
t o
a l t e r ,
amend,
o r
v a c a t e
t h e
t r i a l
c o u r t ' s
J a n u a r y 5, 2009, j u d g m e n t
a s s e s s i n g damages
a g a i n s t
t h e
i n d i v i d u a l
d e f e n d a n t s .
A.
The M a r c h 6, 2009, O r d e r R e g a r d i n g t h e
S e t t l e m e n t
A g r e e m e n t
I n
a p p e a l
no.
1080662,
t h e
c h a p t e r
r a i s e s
s e v e r a l
a r g u m e n t s r e l a t i v e t o t h e t r i a l
c o u r t ' s i n t e r p r e t a t i o n
o f t h e
s e t t l e m e n t
a g r e e m e n t and i t s
M a r c h 6, 2009,
o r d e r
r e q u i r i n g
t h e
c h a p t e r
t o c o m p l y
w i t h
t h a t
i n t e r p r e t a t i o n .
We
h a v e
a l r e a d y
d e t e r m i n e d
t h a t
t h e
M a r c h
6,
2009,
o r d e r
was
i n j u n c t i v e i n n a t u r e .
" [ A ] p e r m a n e n t
i n j u n c t i o n i s
r e v i e w e d
de n o v o . "
TFT, I n c . v. W a r n i n g S y s . , I n c . , 751 So. 2d 1238,
1241-42
( A l a . 1 9 9 9 ) ,
o v e r r u l e d on
o t h e r
g r o u n d s by
H o l i d a y
I s l e ,
LLC
v.
A d k i n s ,
12
So.
3d
1173,
1176
( A l a . 2 0 0 8 ) .
" N e v e r t h e l e s s ,
t h i s
C o u r t
has
n o t e d
t h a t
a
t r i a l
c o u r t ' s
21
1 0 8 0 6 6 2 ; 1081134
c o n s i d e r a t i o n
o f o r e
t e n u s t e s t i m o n y
has
a b e a r i n g upon
t h e
s t a n d a r d
o f
r e v i e w
we
a p p l y
t o
t h e
e n t r y
o f
a
p e r m a n e n t
i n j u n c t i o n . "
C l a s s r o o m d i r e c t . c o m ,
LLC
v.
D r a p h i x ,
LLC,
992
So.
2d
692,
701
( A l a . 2 0 0 8 ) .
"'Where e v i d e n c e
i s p r e s e n t e d
t o
t h e
t r i a l
c o u r t
o r e
t e n u s ,
a
p r e s u m p t i o n o f c o r r e c t n e s s
e x i s t s
as
t o t h e
c o u r t ' s
c o n c l u s i o n s
on
i s s u e s o f f a c t ; i t s d e t e r m i n a t i o n
w i l l
n o t
be
d i s t u r b e d
u n l e s s
i t
i s
c l e a r l y
e r r o n e o u s ,
w i t h o u t
s u p p o r t i n g
e v i d e n c e ,
m a n i f e s t l y
u n j u s t ,
o r
a g a i n s t
t h e
g r e a t
w e i g h t o f t h e
e v i d e n c e .
However,
when
t h e
t r i a l
c o u r t
i m p r o p e r l y
a p p l i e s
t h e
l a w
t o t h e
f a c t s ,
no
p r e s u m p t i o n o f c o r r e c t n e s s
e x i s t s
as t o t h e c o u r t ' s
j u d g m e n t . '
" A m e r i c a n
P e t r o l e u m
E q u i p .
&
C o n s t r . ,
I n c .
v.
F a n c h e r , 708
So.
2d 129,
132
( A l a . 1997)
( c i t a t i o n s
o m i t t e d ) . "
C o l l i n s
v.
R o d g e r s ,
938
So.
2d
379,
384
( A l a . 2 0 0 6 ) .
The
t r i a l
c o u r t
b a s e d
i t s
d e c i s i o n
r e g a r d i n g
t h e
s e t t l e m e n t
a g r e e m e n t
on
t h e
r e p r e s e n t a t i o n s
o f
c o u n s e l
r e g a r d i n g
t h e
a g r e e m e n t a t t h e November 20,
2008, h e a r i n g .
" ' [ A ] t t o r n e y s
a r e
o f f i c e r s
o f t h e
c o u r t
and "'when t h e y
a d d r e s s t h e
j u d g e
s o l e m n l y
upon a m a t t e r b e f o r e
t h e
c o u r t ,
t h e i r
d e c l a r a t i o n s
a r e
v i r t u a l l y made u n d e r o a t h . ' " ' "
M o l t o n v.
S t a t e ,
651
So.
2d
663,
670
n.6
( A l a . C r i m . App.
1994)
( q u o t i n g H o l l o w a y
v.
22
10806 62;
1081134
A r k a n s a s , 435 U.S. 475, 486 ( 1 9 7 8 ) ) ; s e e a l s o Ex p a r t e Owen,
860 So. 2d 877, 880 ( A l a .
2 0 0 3 ) ( c i t i n g M o l t o n ) .
A c c o r d i n g l y ,
we
w i l l
r e v i e w
w i t h
a
p r e s u m p t i o n
o f
c o r r e c t n e s s
t h o s e
p o r t i o n s
o f
t h e
t r i a l
c o u r t ' s
d e c i s i o n
b a s e d
on t h e
r e p r e s e n t a t i o n s
o f c o u n s e l
made a t t h e November 20, 2008,
h e a r i n g .
The
g r a v a m e n
o f t h e c h a p t e r ' s
a r g u m e n t s
i s t h a t t h e
s e t t l e m e n t
a g r e e m e n t
e n c o m p a s s e d
a l l
c l a i m s
a g a i n s t
t h e
c h a p t e r
a n d t h a t a c l a i m a g a i n s t any o f t h e i n d i v i d u a l s as
a g e n t s o f t h e c h a p t e r
i s , i n e s s e n c e , a c l a i m
a g a i n s t t h e
c h a p t e r ,
t h u s
d e f e a t i n g
t h e p u r p o s e
o f t h e
s e t t l e m e n t
a g r e e m e n t .
P r i c e - W i l l i a m s a r g u e s t h a t t h e c h a p t e r i s f u l l y
p r o t e c t e d b y P r i c e - W i l l i a m s ' s r e l e a s e o f a l l c l a i m s a g a i n s t
i t
b a s e d on t h e o r i e s o f v i c a r i o u s l i a b i l i t y a n d , t h u s ,
t h a t t h e
s e t t l e m e n t a g r e e m e n t i s s a t i s f i e d .
P r i c e - W i l l i a m s a l s o a r g u e s
t h a t he e x p r e s s l y r e s e r v e d h i s r i g h t s a g a i n s t t h e i n d i v i d u a l
d e f e n d a n t s i n t h e i r c a p a c i t i e s as i n d i v i d u a l s a n d as a g e n t s o f
t h e
c h a p t e r .
The
t r a n s c r i p t
o f t h e November 20, 2008,
h e a r i n g i s
l i m i t e d a t b e s t .
I t i s a p p a r e n t t h a t P r i c e - W i l l i a m s a n d
t h e
c h a p t e r
a g r e e d t o s e t t l e t h e c l a i m s
b e t w e e n them.
P r i c e -
W i l l i a m s ' s c o u n s e l
s t a t e d t h a t t h e i n d i v i d u a l d e f e n d a n t s were
23
1 0 8 0 6 6 2 ; 1081134
" s t i l l
h a n g i n g
o u t
t h e r e "
and
t h a t
t h e
amount
o f
t h e
" r e m a i n i n g l i a b i l i t y " a f t e r t h e s e t t l e m e n t w o u l d be d e t e r m i n e d
by
t h e
t r i a l
c o u r t .
However, n e i t h e r
P r i c e - W i l l i a m s
n o r
t h e
c h a p t e r
s t a t e d
t h a t
t h e
s e t t l e m e n t
w o u l d
i n c l u d e
P r i c e -
W i l l i a m s ' s
c l a i m s
a g a i n s t
any
o f t h e i n d i v i d u a l d e f e n d a n t s
as
a g e n t s o f t h e c h a p t e r .
M o r e o v e r , d u r i n g t h e c o l l o q u y ,
c o u n s e l
f o r
t h e
c h a p t e r
e x p r e s s e d
h i s
i n t e r e s t i n i n c l u d i n g
i n
t h e
r e l e a s e
t h e
n a t i o n a l
f r a t e r n i t y , w h i c h had
a l r e a d y
p r e v a i l e d
on
summary
j u d g m e n t ,
and
i n
o b t a i n i n g
f i n a l i t y
f o r
h i s
" c l i e n t s . "
C o u n s e l f o r P r i c e - W i l l i a m s i m m e d i a t e l y r e s p o n d e d ,
" T h a t ' s r i g h t .
F r a t e r n i t i e s .
T h a t ' s r i g h t . "
C o u n s e l f o r
t h e
c h a p t e r made no s u b s e q u e n t s t a t e m e n t t o c o n t r a d i c t o r e x p a n d
t h e
s c o p e o f
t h e
c o n t e m p l a t e d
r e l e a s e
as
i n c l u d i n g o n l y
t h e
n a t i o n a l
f r a t e r n i t y
and
t h e
c h a p t e r .
A t
i t s h e a r i n g
on
t h e
p a r t i e s ' m o t i o n s
t o
e n f o r c e
t h e
s e t t l e m e n t
a g r e e m e n t h e l d on F e b r u a r y 6, 2009, t h e
t r i a l
c o u r t
c o r r e c t l y n o t e d t h a t c o u n s e l
f o r t h e c h a p t e r d i d n o t
r e p r e s e n t
t h e
i n d i v i d u a l d e f e n d a n t s
and
t h a t
c o u n s e l
t h e r e f o r e
had
no
b a s i s
on
w h i c h
t o
a r g u e
on
b e h a l f
o f
t h e
i n d i v i d u a l
d e f e n d a n t s .
The
t r i a l
c o u r t
a l s o c o r r e c t l y c o n c l u d e d t h a t
a
r e l e a s e
by
P r i c e - W i l l i a m s
o f a l l c l a i m s
a g a i n s t
t h e
c h a p t e r ,
i n c l u d i n g a l l c l a i m s b a s e d on t h e o r i e s o f v i c a r i o u s
l i a b i l i t y ,
24
1 0 8 0 6 6 2 ; 1081134
w o u l d f u l l y p r o t e c t t h e c h a p t e r f r o m l i a b i l i t y - - e v e n
l i a b i l i t y
a r i s i n g
f r o m
a c t i o n s
o f
t h e
i n d i v i d u a l
d e f e n d a n t s
t o
t h e
e x t e n t
t h e y
a r e
a g e n t s
o f
t h e
c h a p t e r .
I n
l i g h t
o f
t h e
c o l l o q u y
t h a t
t o o k p l a c e
on November 20,
2008, we
c o n c l u d e
t h a t
t h e
t r i a l
c o u r t ' s
i n t e r p r e t a t i o n
o f
t h e
s e t t l e m e n t
a g r e e m e n t
was
n o t
c l e a r l y
e r r o n e o u s ,
w i t h o u t
s u p p o r t i n g
e v i d e n c e ,
m a n i f e s t l y u n j u s t ,
o r a g a i n s t
t h e
g r e a t w e i g h t
o f
t h e
e v i d e n c e .
4
B.
The
T r i a l C o u r t ' s
D e n i a l o f t h e R u l e 5 9 ( e )
M o t i o n
I n a p p e a l no. 1 0 8 0 6 6 2 , t h e c h a p t e r
a l s o c o n t e n d s t h a t
t h e
t r i a l
c o u r t e r r e d i n d e n y i n g i t s R u l e 5 9 ( e )
m o t i o n t o
a l t e r ,
amend, o r v a c a t e
t h e
t r i a l
c o u r t ' s J a n u a r y 5, 2009, j u d g m e n t
a g a i n s t t h e
i n d i v i d u a l d e f e n d a n t s .
"Whether t o g r a n t
r e l i e f
u n d e r R u l e 5 9 ( e ) , A l a . R. C i v . P.,
i s w i t h i n t h e
t r i a l
c o u r t ' s
d i s c r e t i o n . "
B r a d l e y v. Town o f A r g o , 2 So.
3d 819,
823
( A l a .
2 0 0 8 ) . However, when t h e f a c t s a r e u n d i s p u t e d
and t h e
" ' r u l i n g
[ i s ]
a r e c o n s i d e r a t i o n o f a q u e s t i o n o f l a w ,
...
t h e
s t a n d a r d
4 T h e c h a p t e r
a r g u e s t h a t , i n r e a c h i n g
i t s c o n c l u s i o n
as
t o
t h e
i m p o r t
o f
t h e
s e t t l e m e n t
a g r e e m e n t ,
t h e
t r i a l
c o u r t
i m p e r m i s s i b l y
c o n s i d e r e d
p a r o l
e v i d e n c e
r e g a r d i n g
P r i c e -
W i l l i a m s ' s
p l a n s
t o
r e c o v e r
a g a i n s t
a
l i a b i l i t y - i n s u r a n c e
c a r r i e r .
The
r e m a r k s made
d u r i n g
t h e
c o l l o q u y
c o n s t i t u t e
a d e q u a t e and i n d e p e n d e n t g r o u n d s t o s u p p o r t
t h e e n f o r c e m e n t o f
t h e
s e t t l e m e n t
a g r e e m e n t .
25
1 0 8 0 6 6 2 ; 1081134
o f
r e v i e w
i s de novo . '
" 2 So. 3d a t 824
( q u o t i n g
P i o n e e r
N a t u r a l R e s .
USA, I n c . v. P a p e r , A l l i e d I n d u s . , Chem. & E n e r g y
W o r k e r s
I n t ' l U n i o n L o c a l 4-487, 328 F.3d 818, 820 ( 5 t h C i r .
2 0 0 3 ) , a p p l y i n g t h e a n a l o g o u s R u l e 5 9 ( e ) , F e d . R. C i v . P . ) .
The
c h a p t e r a r g u e s t h a t i n
t h e J a n u a r y 5, 2009, j u d g m e n t ,
t h e
t r i a l
c o u r t
i m p r o p e r l y made f i n d i n g s r e g a r d i n g
l i a b i l i t y
when i t
n e e d e d o n l y t o a s s e s s t h e amount o f damages.
P r i c e -
W i l l i a m s
c o r r e c t l y a r g u e s t h a t b e c a u s e t h e J a n u a r y 5, 2009,
j u d g m e n t was e n t e r e d
a g a i n s t o n l y t h e i n d i v i d u a l
d e f e n d a n t s ,
t h e c h a p t e r h a s no s t a n d i n g t o c h a l l e n g e t h e j u d g m e n t .
T h i s
C o u r t h a s s t a t e d : " O n l y a p a r t y p r e j u d i c e d o r a g g r i e v e d b y a
j u d g m e n t c a n a p p e a l . ... 'A p a r t y c a n n o t c l a i m e r r o r where no
a d v e r s e r u l i n g i s
made a g a i n s t h i m . ' "
A l c a z a r S h r i n e
Temple
v. M o n t g o m e r y C o u n t y
S h e r i f f ' s D e p ' t , 868 So. 2d 1 0 9 3 , 1094
( A l a .
2 0 0 3 ) ( q u o t i n g
H o l l o w a y v . R o b e r t s o n , 500 So. 2d 1056,
1059
( A l a .
1 9 9 7 ) ) .
The
t r i a l
c o u r t ' s
J a n u a r y
5,
2009,
j u d g m e n t was e n t e r e d
a g a i n s t
o n l y t h e i n d i v i d u a l
d e f e n d a n t s
and was n o t e x p r e s s l y a d v e r s e t o t h e i n t e r e s t s o f t h e c h a p t e r .
However, t h e c h a p t e r
a r g u e s
t h a t t h e J a n u a r y 5, 2009,
j u d g m e n t a d v e r s e l y
a f f e c t e d i t s i n t e r e s t s b e c a u s e t h e
t r i a l
c o u r t
d e t e r m i n e d
t h a t , as a g e n t s o f t h e c h a p t e r ,
Dean a n d
B a b e r
h a d
n e g l i g e n t l y
a n d
w a n t o n l y
f a i l e d
t o
c r e a t e ,
26
10806 62;
1081134
i m p l e m e n t , and f o l l o w r u l e s and r e g u l a t i o n s t h a t w o u l d have
p r e v e n t e d
t h e a s s a u l t .
The c h a p t e r
c o r r e c t l y n o t e s t h a t t h e
t h i r d
c o u n t o f t h e c o m p l a i n t
was
a s s e r t e d
o n l y
a g a i n s t
t h e
n a t i o n a l
f r a t e r n i t y and t h e c h a p t e r .
A s s u m i n g t h a t
a d v e r s e
c o l l a t e r a l e f f e c t s o f an o r d e r a g a i n s t a n o t h e r p a r t y g i v e s t h e
c h a p t e r
s t a n d i n g
t o r e v i e w
t h a t
o r d e r ,
and t h e c h a p t e r
has
g i v e n us no a u t h o r i t y f o r s u c h p r o p o s i t i o n , t h e i n s u l a t i o n o f
t h e c h a p t e r u n d e r t h e s e t t l e m e n t a g r e e m e n t f r o m
l i a b i l i t y f o r
t h e
a c t s o f t h e a g e n t s makes any
e r r o r h a r m l e s s as t o t h e
c h a p t e r .
C o n c l u s i o n
B a s e d on t h e f o r e g o i n g , we d e n y P r i c e - W i l l i a m s ' s m o t i o n
t o d i s m i s s a p p e a l no. 1080662, and we a f f i r m t h e t r i a l
c o u r t ' s
M a r c h 6, 2009, o r d e r .
As t o a p p e a l no. 1081134, we a f f i r m t h e
t r i a l
c o u r t ' s
A p r i l 16, 2009,
o r d e r .
1080662 -- MOTION TO DISMISS DENIED; AFFIRMED.
Cobb, C . J . , and W o o d a l l ,
S t u a r t , S m i t h ,
B o l i n ,
P a r k e r ,
and Shaw, J J . , c o n c u r .
M u r d o c k , J . , c o n c u r s i n t h e r a t i o n a l e i n p a r t and c o n c u r s
i n t h e
r e s u l t .
27
1 0 8 0 6 6 2 ; 1081134
1081134 -- AFFIRMED.
Cobb, C . J . , and W o o d a l l ,
S t u a r t ,
S m i t h ,
B o l i n ,
P a r k e r ,
and Shaw, J J . , c o n c u r .
M u r d o c k , J . , c o n c u r s i n t h e r a t i o n a l e i n p a r t and c o n c u r s
i n t h e r e s u l t .
28
1 0 8 0 6 6 2 ; 1081134
MURDOCK,
J u s t i c e
( c o n c u r r i n g i n t h e
r a t i o n a l e
i n p a r t
and
c o n c u r r i n g i n t h e
r e s u l t ) .
I c o n c u r
i n t h e r e s u l t , b u t I r e s p e c t f u l l y d i s a g r e e
w i t h
two
a s p e c t s
o f t h e m a j o r i t y ' s
a n a l y s i s .
F i r s t ,
i n H o l i d a y
I s l e ,
LLC
v. A d k i n s ,
12
So.
3d
1173,
1176
( A l a . 2 0 0 8 ) ,
t h i s C o u r t
s t a t e d :
"We
f i n d
t h e
r u l e
a p p l i e d
by
t h e
U n i t e d
S t a t e s
Supreme
C o u r t
i n
s i m i l a r
s i t u a t i o n s
t o
be
p e r s u a s i v e :
'We
r e v i e w
t h e
D i s t r i c t
C o u r t ' s
l e g a l
r u l i n g s
d e novo and
i t s u l t i m a t e d e c i s i o n t o
i s s u e
t h e p r e l i m i n a r y i n j u n c t i o n f o r a b u s e o f
d i s c r e t i o n . '
G o n z a l e s
v.
O C e n t r o
E s p i r i t a
B e n e f i c e n t e U n i a o
do
V e g e t a l ,
54 6
U.S.
418,
428 , 12 6
S.Ct.
1211,
163
L . E d . 2 d
1017
( 2 0 0 6 ) ;
see
a l s o
J u s t i c e
M u r d o c k ' s
s p e c i a l
w r i t i n g
w h i l e
s i t t i n g
as
a
j u d g e
on
t h e
C o u r t
o f
C i v i l
A p p e a l s
i n
C i t y
o f
D o t h a n
v.
E i g h t y - F o u r West, I n c . , 871 So. 2d 54,
60
( A l a . C i v .
App.
2003)
( M u r d o c k ,
J . ,
c o n c u r r i n g
s p e c i a l l y
on
a p p l i c a t i o n
f o r r e h e a r i n g )
( c i t e d w i t h a p p r o v a l
i n
M c G l a t h e r y
v. R i c h a r d s o n ,
944
So.
2d 968,
970
( A l a .
C i v . App.
2 0 0 6 ) ) .
To t h e e x t e n t t h e y
c o n f l i c t
w i t h
o u r h o l d i n g t o d a y ,
p r e v i o u s e x p r e s s i o n s s u c h as
t h e
one
f o u n d i n TFT,
I n c . v. W a r n i n g S y s t e m s , I n c . ,
751
So.
2d
1238,
1241-42
( A l a . 1999)
('The
a p p l i c a b l e
s t a n d a r d o f r e v i e w
[ o f i n j u n c t i v e r e l i e f ] d e p e n d s on
w h e t h e r
t h e
t r i a l
c o u r t
e n t e r e d
a
p r e l i m i n a r y
i n j u n c t i o n o r a p e r m a n e n t i n j u n c t i o n .
A p r e l i m i n a r y
i n j u n c t i o n i s r e v i e w e d u n d e r an a b u s e - o f - d i s c r e t i o n
s t a n d a r d , w h e r e a s a p e r m a n e n t i n j u n c t i o n i s r e v i e w e d
de novo.') a r e h e r e b y o v e r r u l e d . "
B a s e d on t h e r a t i o n a l e r e f l e c t e d and t h e a u t h o r i t i e s c i t e d i n
t h i s d i s c u s s i o n i n H o l i d a y I s l e and i n t h e l e g a l a n a l y s i s t h a t
f o l l o w s
t h e
c i t a t i o n
t o TFT,
I n c . v. W a r n i n g S y s t e m s ,
I n c . ,
29
1080662;
1081134
751 So. 2d 1238
( A l a . 1 9 9 9 ) , i n t h e m a i n o p i n i o n h e r e ,
I see
no
r e a s o n
t o
c o n t i n u e
r e p e a t i n g ,
and
I b e l i e v e we
s h o u l d
d i s a v o w ,
t h e
o n e - s i z e - f i t s - a l l
r u l e
f r o m
TFT
t h a t
"'a
p e r m a n e n t
i n j u n c t i o n i s r e v i e w e d
de n o v o . ' "
So. 3d a t
I a l s o r e s p e c t f u l l y d i s a g r e e w i t h t h e n o t i o n e x p r e s s e d i n
t h e m a i n o p i n i o n t h a t t h e t r i a l
c o u r t ' s M a r c h 6, 2009,
o r d e r
g r a n t i n g
Ryan
P r i c e - W i l l i a m s ' s
m o t i o n
t o
e n f o r c e
t h e
s e t t l e m e n t i s an i n j u n c t i o n . The m a j o r i t y a p p e a r s t o f i n d i t
n e c e s s a r y t o make t h i s d e t e r m i n a t i o n b e c a u s e i t
i s h e s i t a n t t o
c o n c l u d e t h a t t h e a p p e a l by Kappa Sigma F r a t e r n i t y , Kappa Nu
C h a p t e r
("the c h a p t e r " ) ,
o f t h e M a r c h 6, 2009,
o r d e r
i s an
a p p e a l
f r o m a f i n a l j u d g m e n t .
I c o n c l u d e t h a t t h i s
h e s i t a n c y
i s u n f o u n d e d and t h a t t h e M a r c h 6, 2009, o r d e r o f t h e
t r i a l
c o u r t i s n o t p r o p e r l y v i e w e d as an i n j u n c t i o n .
F i r s t , p r e v i o u s
c a s e s b e f o r e
t h i s C o u r t and t h e C o u r t o f
C i v i l A p p e a l s p r o v i d e
s u b s t a n t i a l p h y s i c a l p r e c e d e n t f o r t h e
p r i n c i p l e
t h a t
r u l i n g s on m o t i o n s
t o e n f o r c e
a
s e t t l e m e n t
a g r e e m e n t a r e a p p e a l a b l e .
See g e n e r a l l y C i n c i n n a t i I n s . C o s .
v. B a r b e r
I n s u l a t i o n , I n c . , 946 So. 2d 4 4 1 , 449
( A l a . 2006)
( a d d r e s s i n g on i t s
m e r i t s t h e a p p e a l
o f an o r d e r
e n f o r c i n g a
s e t t l e m e n t a g r e e m e n t ) ; J o n e s v. Stedman, 595 So. 2d 1355 ( A l a .
30
1 0 8 0 6 6 2 ; 1081134
1992)
( a f f i r m i n g a
t r i a l
c o u r t ' s e n f o r c e m e n t o f a
s e t t l e m e n t
o f a w i l l
c o n t e s t ) ; P h i l l i p s v. K n i g h t ,
559
So.
2d 564
( A l a .
1990)
( a d d r e s s i n g
on
i t s m e r i t s
t h e
a p p e a l
o f
an
o r d e r
e n f o r c i n g a s e t t l e m e n t
a g r e e m e n t ) ; C o n t r a c t o r
S u c c e s s G r o u p ,
I n c . v.
S e r v i c e T h r u s t
O r g . ,
I n c . ,
681
So.
2d 212,
214
( A l a .
C i v .
App.
1996)
( c o n s i d e r i n g on
i t s m e r i t s
t h e
a p p e a l
o f
a
t r i a l
c o u r t ' s
" o r d e r
h o l d i n g
t h e
s e t t l e m e n t
a g r e e m e n t t o
be
v a l i d
and
e n f o r c e a b l e
and
o r d e r i n g
t h a t
t h e
p a r t i e s
e x e c u t e
t h e a g r e e m e n t and c o m p l y w i t h i t " ( e m p h a s i s
a d d e d ) ) .
None o f t h e c a s e s i n v o l v i n g an a p p e a l
o f a t r i a l
c o u r t ' s
r u l i n g e n f o r c i n g a s e t t l e m e n t a g r e e m e n t i n d i c a t e s t h a t s u c h a
r u l i n g
i m p l i c a t e s a
t r i a l
c o u r t ' s
i n j u n c t i v e power
o r
t h a t
s u c h
a
r u l i n g
i s
i n t e r l o c u t o r y
i n n a t u r e .
I n s t e a d ,
t h e s e
c a s e s a r e c o n s i s t e n t w i t h t h e p r i n c i p l e t h a t " ' [ a ]
s e t t l e m e n t
a g r e e m e n t once
e n t e r e d
i n t o
c a n n o t
be
r e p u d i a t e d
by
e i t h e r
p a r t y and
w i l l be s u m m a r i l y e n f o r c e d . ' " Mays v.
J u l i a n L e C r a w
& Co.,
807
So.
2d 551,
554
( A l a . C i v . App.
2001)
( q u o t i n g N e r o
v. C h a s t a n g , 358
So.
2d 740,
743
( A l a . C i v . App.
1 9 7 8 ) ) .
I n
s u m m a r i l y e n f o r c i n g s u c h a s e t t l e m e n t a g r e e m e n t , a t r i a l
c o u r t
e x e r c i s e s i n h e r e n t power t o do
so b a s e d on t h e
f a c t t h a t
t h e
31
1 0 8 0 6 6 2 ; 1081134
a g r e e m e n t h a s b e e n made
b e f o r e
t h e c o u r t .
See g e n e r a l l y
§ 3 4 - 3 - 2 1 , A l a . Code 1 9 7 5 ;
5 R u l e 47, A l a . R. App. P.
6
I f
t h i s
were n o t t h e c a s e ,
b u t i n s t e a d , as t h e m a i n
o p i n i o n
s u g g e s t s ,
s u c h an o r d e r
i s p r o p e r l y
v i e w e d as an
i n j u n c t i o n , t h e o r d e r c o u l d be p r o c u r e d
o n l y upon p r o o f o f
t h e
f o u r
e l e m e n t s
n e c e s s a r y
f o r
s u c h
e q u i t a b l e
r e l i e f .
S p e c i f i c a l l y ,
" [ t ] o b e e n t i t l e d t o a p e r m a n e n t i n j u n c t i o n , a
p l a i n t i f f
m u s t
d e m o n s t r a t e
[ 1 ] s u c c e s s
on t h e
m e r i t s ,
[ 2 ] a
s u b s t a n t i a l t h r e a t o f i r r e p a r a b l e
i n j u r y i f
t h e i n j u n c t i o n i s n o t g r a n t e d , [ 3 ] t h a t
t h e t h r e a t e n e d
i n j u r y t o t h e p l a i n t i f f o u t w e i g h s t h e
harm t h e i n j u n c t i o n may c a u s e t h e d e f e n d a n t , a n d
[ 4 ]
t h a t g r a n t i n g t h e i n j u n c t i o n w i l l n o t d i s s e r v e t h e
p u b l i c
i n t e r e s t . "
TFT,
751 So. 2 d a t 1242
( c i t a t i o n s
o m i t t e d ) ,
o v e r r u l e d on
o t h e r
g r o u n d s ,
H o l i d a y
I s l e ,
12 So. 3 d a t 1176.
I c a n n o t
5 S e c t i o n 3 4 - 3 - 2 1 , A l a . Code 1975, p r o v i d e s : "An a t t o r n e y
has a u t h o r i t y t o b i n d h i s c l i e n t , i n
any a c t i o n o r p r o c e e d i n g ,
by any a g r e e m e n t i n r e l a t i o n t o s u c h c a s e , made i n w r i t i n g , o r
by an e n t r y t o be made on t h e m i n u t e s o f t h e c o u r t . "
6 R u l e 47, A l a . R. App. P., p r o v i d e s :
"No p r i v a t e a g r e e m e n t o r c o n s e n t b e t w e e n t h e
p a r t i e s
o r
t h e i r
a t t o r n e y s ,
r e l a t i n g
t o t h e
p r o c e e d i n g s
i n any
c a u s e ,
s h a l l
be
a l l e g e d o r
s u g g e s t e d b y e i t h e r a g a i n s t t h e o t h e r ,
u n l e s s t h e
same be i n w r i t i n g , a n d s i g n e d by t h e p a r t y t o be
b o u n d t h e r e b y ; p r o v i d e d , h o w e v e r , a g r e e m e n t s made
i n
open c o u r t o r a t p r e t r i a l
c o n f e r e n c e s
a r e b i n d i n g ,
w h e t h e r s u c h a g r e e m e n t s a r e o r a l o r w r i t t e n . "
32
1 0 8 0 6 6 2 ; 1081134
c o n c l u d e
t h a t
t h i s
i s t h e
l a w .
I n
s h o r t ,
a
t r i a l
c o u r t ' s
o r d e r s u m m a r i l y e n f o r c i n g a s e t t l e m e n t a g r e e m e n t r e a c h e d i n a
c a s e p e n d i n g b e f o r e
i t i s n o t
an " i n j u n c t i o n . "
7
A c c o r d i n g l y ,
I a l s o s u b m i t t h a t t h e m a j o r i t y i s i n c o r r e c t
i n n o t e 3 o f i t s o p i n i o n
t o f a u l t t h e
c h a p t e r
f o r f a i l i n g
t o
a r g u e on a p p e a l " t h e i m p r o p r i e t y o f i n j u n c t i v e r e l i e f b a s e d on
t h e a d e q u a c y o f a remedy a t l a w . "
So.
3d a t
.
B e f o r e
t h i s
C o u r t ' s
d e c i s i o n t o d a y ,
t h e
c h a p t e r
was
n o t
f a i r l y
on
n o t i c e
t h a t
t h e
t r i a l
c o u r t ' s
o r d e r
c o n s t i t u t e d
an
" i n j u n c t i o n " ; t h e
t r i a l
c o u r t d i d n o t d i s c u s s t h e e l e m e n t s
o f
an
i n j u n c t i o n
i n
i t s
o r d e r ,
a n d
n e i t h e r
p a r t y
made
any
a r g u m e n t s
c o n c e r n i n g
s u c h e l e m e n t s b e f o r e
t h e
t r i a l
c o u r t .
C o n s e q u e n t l y , i t comes as no s u r p r i s e t h a t t h e c h a p t e r
d i d
n o t
7 S e e a l s o Cupps v. C u p p s , 675
So.
2d
889
( A l a . C i v .
App.
1 9 9 6 ) .
I n C u p p s ,
t h e
C o u r t
o f
C i v i l A p p e a l s
h e l d
t h a t
t h e
t r i a l
c o u r t
was
n o t
r e q u i r e d
t o c o m p l y w i t h
R u l e
6 5 ( d ) ( 2 ) ,
A l a .
R.
C i v .
P.,
w h i c h
r e q u i r e s
t h a t
an
o r d e r
g r a n t i n g
an
i n j u n c t i o n s e t f o r t h t h e r e a s o n s f o r i t s i s s u a n c e .
The
c o u r t
r e a s o n e d t h a t t h e w i f e was
s e e k i n g
a remedy f o r h e r h u s b a n d ' s
f a i l u r e
t o
c o m p l y
w i t h
a
f i n a l
d i v o r c e
j u d g m e n t ,
w h i c h
i n c o r p o r a t e d
a
s e t t l e m e n t
a g r e e m e n t
g i v i n g
t h e
w i f e
an
e q u i t a b l e
l i e n and r e q u i r i n g t h e h u s b a n d t o pay a l l a l i m o n y i n
g r o s s
by
a
s p e c i f i e d d a t e .
The
C o u r t
o f
C i v i l
A p p e a l s
r e a s o n e d t h a t " t h e
t r i a l c o u r t i n i s s u i n g i t s o r d e r
[ r e q u i r i n g
t h e
use
o f
c e r t a i n f u n d s
t o
s a t i s f y
t h e
l i e n ]
a c t e d
w i t h i n
R u l e 70,
A l a . R.
C i v . P.,
w h i c h r e c o g n i z e s
t h e
t r i a l
c o u r t ' s
a u t h o r i t y
t o use
i t s i n h e r e n t power t o e n f o r c e
a
s e t t l e m e n t
a g r e e m e n t a p p r o v e d by
t h a t c o u r t . "
675
So.
2d a t
891.
33
1 0 8 0 6 6 2 ; 1081134
a r g u e on a p p e a l
t h a t t h e
t r i a l
c o u r t s h o u l d n o t h a v e
e n t e r e d
i n j u n c t i v e
r e l i e f ,
p e r
s e .
The
t r i a l c o u r t ' s o r d e r r e q u i r i n g t h e c h a p t e r t o
e x e c u t e
t h e
s e t t l e m e n t a g r e e m e n t and
t o p a y
t h e
s e t t l e m e n t
p r o c e e d s
was
s i m p l y
p a r t
o f
i t s
e n f o r c e m e n t
o f
t h e
s e t t l e m e n t
a g r e e m e n t .
The
f a c t
t h a t t h e
t r i a l
c o u r t o r d e r e d
t h a t
t h e
p r o c e e d s
be
p a i d b y
M a r c h
9,
2 0 0 9 --
t h r e e
d a y s
a f t e r
i t
e n t e r e d
i t s o r d e r
e n f o r c i n g t h e
s e t t l e m e n t --
a n d
t h a t
t h e
o r d e r s t a t e d t h a t " [ u ] p o n
t h e c o n s u m m a t i o n o f t h e
s e t t l e m e n t
...
t h i s m a t t e r
w i l l be deemed d i s m i s s e d w i t h p r e j u d i c e " d i d
n o t
t r a n s f o r m
i t s e n f o r c e m e n t o r d e r
i n t o
an
i n j u n c t i o n .
A
s i m i l a r d i s p o s i t i o n o c c u r r e d i n I n g r a m v. P o l l a c k , 557
So.
2d
1199
( A l a . 1 9 8 9 ) ,
y e t
t h e
C o u r t
t h e r e
d i d n o t
q u e s t i o n
t h e
f i n a l i t y
o f o r d e r a p p e a l e d
o r i n d i c a t e t h a t t h e o r d e r was
i n
t h e n a t u r e
o f an
i n j u n c t i o n .
I n
I n g r a m ,
t h e
t r i a l
c o u r t
had
e n t e r e d
an
o r d e r
t o
e n f o r c e
a s e t t l e m e n t
a g r e e m e n t
and
had
s t a t e d , i n
l a n g u a g e
s i m i l a r
t o t h e
o r d e r
i n t h e p r e s e n t
c a s e ,
t h a t upon n o t i c e
t h a t
" ' t h e
s e t t l e m e n t
has
b e e n consummated,
...
t h e
c o u r t
[ w o u l d ] t h e n d i s m i s s t h e c a s e w i t h p r e j u d i c e . ' "
557
So. 2d a t
1200
( e m p h a s i s a d d e d ) .
The
p l a i n t i f f
f i l e d a R u l e 5 9 ( e ) , A l a .
34
10806
62; 1081134
R. C i v . P.,
m o t i o n , w h i c h was
n o t r u l e d upon w i t h i n 90
d a y s .
I n
c o n c l u d i n g
t h a t
t h e
a t t e m p t
t o
a p p e a l
f o l l o w i n g
t h e
e x p i r a t i o n o f t h e 90 d a y s was u n t i m e l y , t h i s C o u r t " h e l d t h a t
t h e o r d e r a p p e a l e d f r o m was
f i n a l a n d t h a t t h e t i m e f o r
f i l i n g
a p o s t j u d g m e n t
m o t i o n
o r an a p p e a l " h a d r u n .
557
So.
2d
a t
1199.
"A
f i n a l
j u d g m e n t
i s
an
o r d e r
' t h a t
c o n c l u s i v e l y
d e t e r m i n e s
t h e
i s s u e s
b e f o r e
t h e
c o u r t and
a s c e r t a i n s
and
d e c l a r e s t h e r i g h t s o f t h e p a r t i e s i n v o l v e d . '
Bean v.
C r a i g ,
557
So. 2d 1249,
1253
( A l a . 1 9 9 0 ) . "
L u n c e f o r d v. M o n u m e n t a l
L i f e
I n s .
Co.,
641
So.
2d
244,
246
( A l a .
1 9 9 4 ) .
The
d e t e r m i n a t i o n w h e t h e r a j u d g m e n t i s f i n a l d o e s n o t d e p e n d on
t h e
t i t l e
o f t h e
o r d e r ; " r a t h e r ,
t h e
t e s t
o f a
j u d g m e n t ' s
f i n a l i t y
i s w h e t h e r i t s u f f i c i e n t l y
a s c e r t a i n s a n d d e c l a r e s
t h e r i g h t s o f t h e p a r t i e s . "
Ex p a r t e DCH R e g ' l Med.
C t r . , 571
So.
2d
1162,
1164
( A l a . C i v . App.
l 9 9 0 )
( e m p h a s i s
added)
( c i t i n g M c C u l l o c h v. R o b e r t s , 290
A l a . 303,
276
So.
2d
425
( 1 9 7 3 ) ) .
I n M c C u l l o c h , t h e C o u r t e x p l a i n e d as
f o l l o w s :
" I n
Ex p a r t e E l y t o n L a n d Co.,
104 A l a . 88,
91,
15 So.
939
( 1 8 9 3 ) , t h i s c o u r t h e l d t h a t :
"'...
The
t e s t o f t h e
f i n a l i t y
o f a
d e c r e e t o s u p p o r t an a p p e a l i s n o t w h e t h e r
t h e
c a u s e
r e m a i n s
i n
f i e r i ,
i n
some
35
1 0 8 0 6 6 2 ; 1081134
r e s p e c t s ,
i n
t h e
c o u r t
o f
c h a n c e r y ,
a w a i t i n g
f u r t h e r p r o c e e d i n g s n e c e s s a r y
t o
e n t i t l e t h e p a r t i e s t o t h e
f u l l m e a s u r e
o f
t h e
r i g h t s i t has b e e n d e c l a r e d t h e y h a v e ;
b u t
w h e t h e r
t h e
d e c r e e
w h i c h
h a s
b e e n
r e n d e r e d ,
a s c e r t a i n s
and
d e c l a r e s
t h e s e
r i g h t s
--
i f t h e s e
a r e
a s c e r t a i n e d
a n d
a d j u d g e d ,
t h e
d e c r e e
i s
f i n a l ,
and
w i l l
s u p p o r t an
a p p e a l .
... '
" L i k e w i s e ,
i n C a r t e r v. M i t c h e l l ,
225
A l a .
287,
293,
142
So.
5 1 4 [ ,
519]
( 1 9 3 2 ) , t h e
r u l e was
s t a t e d
as
f o l l o w s :
"'The
t e s t o f t h e
f i n a l i t y
o f a d e c r e e
s u f f i c i e n t t o s u p p o r t an a p p e a l i s t h a t i t
a s c e r t a i n s
a n d
d e c l a r e s
t h e
r i g h t s o f
t h e
p a r t i e s
and
s e t t l e s t h e
e q u i t i e s , and
i s
n o t
c o n t r o l l e d by
t h e
f a c t t h a t
t h e
c a u s e
r e m a i n s
i n
f i e r i
i n
r e s p e c t
t o
o t h e r
m a t t e r s .
[ C i t a t i o n o m i t t e d ] '
" I n Adams v. S a y r e , 76 A l a . 509,
518
( 1 8 8 4 ) , i t
was
h e l d
t h a t :
"'No
g e n e r a l
r u l e
c a n
p r o b a b l y
be
s t a t e d , w h i c h w o u l d d e f i n e a c c u r a t e l y ,
f o r
a l l p o s s i b l e e m e r g e n c i e s , w h a t c o n s t i t u t e s
t h e e q u i t i e s o f e v e r y c a s e . T h e s e e q u i t i e s
e m b r a c e
t h e
s u b s t a n t i a l
m e r i t s
o f
t h e
c o n t r o v e r s y
--
t h e m a t e r i a l i s s u e s o f
f a c t
and
l a w
l i t i g a t e d
o r n e c e s s a r i l y
i n v o l v e d
i n
t h e
c a u s e ,
w h i c h
d e t e r m i n e
t h e
l e g a l
r i g h t s
o f t h e
p a r t i e s , and
t h e p r i n c i p l e s
b y w h i c h s u c h r i g h t s a r e
t o be w o r k e d
o u t .
" I n
S e x t o n
v.
S e x t o n ,
280
A l a .
479,
482,
195
So.
2d
531,
533
( 1 9 6 7 ) , t h e
r u l e was
s t a t e d
t h a t :
36
1 0 8 0 6 6 2 ; 1081134
" ' E q u i t y d e c r e e s may
be
p a r t l y
f i n a l
a n d p a r t l y
i n t e r l o c u t o r y .
A d e c r e e
w h i c h
a s c e r t a i n s a n d d e c l a r e s t h e r i g h t s o f t h e
p a r t i e s a n d s e t t l e s t h e e q u i t i e s i s a
f i n a l
d e c r e e ,
a l t h o u g h i t p r o v i d e s f o r
f u r t h e r
p r o c e e d i n g s
u n d e r
t h e
d i r e c t i o n
o f
t h e
c o u r t
i n o r d e r
t o make t h e
f i n a l
d e c r e e
e f f e c t i v e , s u c h d e c r e e i s i n t e r l o c u t o r y and
r e m a i n s
w i t h i n
t h e
c o n t r o l
o f
t h e
c o u r t
b e c a u s e
as
t o
s u c h
d e c r e e
a n d
f u r t h e r
p r o c e e d i n g s t h e r e u n d e r t h e c a u s e r e m a i n s i n
f i e r i .
[ C i t a t i o n s
o m i t t e d ] '
"See
a l s o Newton v. Ware, 271 A l a . 444,
12
664
( 1 9 6 0 ) , a n d Ex p a r t e S p a r k s , 254 A l a .
So. 2d 296
(1950)
"
124
So.
2d
S p a r k s ,
254
A l a . 595,
49
290 A l a . a t 305-06, 276 So. 2d a t 426-27
( e m p h a s i s
a d d e d ) .
The
t r i a l c o u r t ' s M a r c h 6, 2009, o r d e r s e t t l e d t h e i s s u e s
b e t w e e n t h e p a r t i e s a n d was
a f i n a l j u d g m e n t .
The
f a c t
t h a t
t h e
c h a p t e r h a d
n o t p a i d
t h e s e t t l e m e n t p r o c e e d s
t o
P r i c e -
W i l l i a m s d o e s n o t c h a n g e t h a t t h e r e was
" ' n o t h i n g f o r f u r t h e r
a d j u d i c a t i o n ' "
b e f o r e t h e m a t t e r
c o u l d be
h e a r d on
a p p e a l .
James v. Rane, 8 So. 3d 286, 287
( A l a . 2008) ( q u o t i n g C a t e s v.
B u s h ,
293
A l a . 535,
537,
307
So.
2d
6,
8
(1
9 7 5 ) ) .
I t i s
b e c a u s e
t h e
c h a p t e r
a p p e a l e d
f r o m
an
a p p e a l a b l e ,
f i n a l
j u d g m e n t
t h a t
I
c o n c l u d e
t h a t
P r i c e - W i l l i a m s ' s
m o t i o n
t o
d i s m i s s i s w i t h o u t m e r i t .
37 | December 18, 2009 |
763c713d-3dc7-4840-bbd4-6beb32112b2e | Henry Collins, as administrator of the estate of April Collins, deceased v. Scenic Homes, Inc. et al. (Appeal from Madison Circuit Court: CV-04-2677). Application Overruled. No Opinion. | N/A | 1070875 | Alabama | Alabama Supreme Court | REL: 11/25/2009
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
____________________
1070875
____________________
Henry Collins, as administrator of the estate of April
Collins, deceased
v.
Scenic Homes, Inc., et al.
____________________
1070975
____________________
Kevin Kilgore
v.
Scenic Homes, Inc., et al.
2
____________________
1070976
____________________
Michael Hopkins et al.
v.
Scenic Homes, Inc., et al.
Appeals from Madison Circuit Court
(CV-04-2677; CV-04-2678; and CV-05-718)
On Applications for Rehearing
STUART, Justice.
APPLICATIONS OVERRULED; NO OPINION.
Cobb, C.J., and Lyons, Woodall, Smith, Bolin, and Parker,
JJ., concur.
Murdock and Shaw, JJ., dissent.
1070875, 1070975, 1070976
3
SHAW, Justice (dissenting).
On original submission, I concurred in Justice Murdock's
special writing concurring in part and dissenting in part.
Collins v. Scenic Homes, Inc., [Ms. 1070875, June 30, 2009]
So. 3d , (Ala. 2009) (Murdock, J., concurring in
part and dissenting in part). By doing so, I specifically
disagreed with the analysis in the main opinion as to issue II
in the "Issues and Analysis" portion of that opinion, which
addressed the application of the 20-year common-law rule of
repose. It remains difficult for me to reconcile the
conflicted and confusing language in many of our cases dealing
with the rule of repose. However, I am clear to the
conclusion that there is a fundamental difference recognized
in
American
jurisprudence
between a statute
of
limitations
and
a statute or rule of repose. Therefore, I once again assert
my agreement with the concerns expressed in Justice Murdock's
special
writing.
Accordingly,
I respectfully
dissent
from
the
overruling of the applications for rehearing. | November 25, 2009 |
b552ec87-6fe6-42f8-82f6-49f1f7b08c67 | Wilkinson v. Rowe | 98 So. 2d 435 | N/A | Alabama | Alabama Supreme Court | 98 So. 2d 435 (1957)
George C. WILKINSON et al.
v.
F. W. ROWE, d/b/a Rowe Surveying Company.
1 Div. 704.
Supreme Court of Alabama.
August 22, 1957.
Rehearing Denied November 21, 1957.
Edmund R. Cannon, Jr., Hand, Arendall & Bedsole, Mobile, for appellants.
Rae M. Crowe, Gaillard & Gaillard, Mobile, for appellee.
COLEMAN, Justice.
Appellee filed his bill in equity against appellants to enforce an alleged mechanic's lien claimed by appellee against certain lands owned by appellants. Demurrer *436 to the bill of complaint as amended was overruled, and respondents appeal to this court to review the ruling on demurrer.
Appellee states the question in the case as follows:
The bill of complaint describes the services for which appellee claims a lien as follows:
Appellants and appellee both agree that the precise question in this case has not been heretofore answered in Alabama.
The right to a mechanic's lien as claimed here did not exist at common law. Appellee's right, if any, to such a lien must be conferred on him by statute.
Section 37, Title 33, Code 1940, provides that every person "* * * who shall do or perform any work, or labor upon, or furnish any material, fixture, engine, boiler, or machinery for any building or improvement on land, or for repairing, altering, or beautifying the same, * * * shall have a lien therefor on such building or improvements and on the land on which the same is situated, * * *" etc. (Emphasis supplied.)
By its language, the statute gives the lien first on the building or improvement, then on the land. Unless the improvement on which the lien can be fastened exists, the lien never attaches to the land. The statute gives a lien for work on an improvement on *437 land, but does not give a lien for work on land in the absence of an improvement or building thereon.
This court has construed the word "improvement," as used in the statute, to embrace more than the word "building," and, in holding "that a well designed and made for a permanent supply of water" constitutes an improvement under our mechanic's lien statute, this court said:
The question here before us is: Does the thing on or for which the surveyor furnished labor, as averred in the bill, constitute an improvement within the meaning of § 37 of Title 33?
In considering mechanic's liens, Somerville, J., writing for this court, had the following to say:
Can it be said from the averments of the bill in this case that anything has attached to and become a part of the realty, as a result of the surveyor's work?
We recognize that in construing a similar lien statute, this court has said:
In Montandon & Co. v. Deas, supra, however, it appears that the improvement was a "brick house," which is unquestionably an improvement of the character for which the lien was provided.
In Floyd v. Rambo, 250 Ala. 101, 106, 33 So. 2d 360, 364, the court said:
In the last cited case, however, the lien was sought for labor done and material furnished in installing a heating system in a dwelling house. The heating system was a visible, tangible thing.
Appellee argues that he is entitled to a lien in this case by analogy to our holding that an architect is entitled to a lien for his services in preparing plans for a building. This court has held that an architect who prepares the drawings, plans, and specifications for a building, and superintends the erection thereof, is entitled to a lien under our statutes. Hughes v. Torgerson, 96 Ala. 346, 11 So. 209, 16 L.R.A. 600. Beyond that holding, so far as we are advised, this court has not extended the coverage of the mechanic's lien statute with respect to architects.
While it does not appear to have been controlling, the opinion in Hughes v. Torgerson, supra, noted that, "By the judgment a lien was declared only on the building, and not on the lot." For a collection of authorities dealing with the right of architects to a lien, see 60 A.L.R. 1252.
The rationale for allowing a lien for preparing plans which are actually used appears to be that when the plans are used they become a part of the building and the labor expended in preparing the plans is performed on the building in the same sense as the labor of the carpenter or brickmason.
We have not been cited to nor have we found any case in this jurisdiction where a lien has been granted when there was no tangible improvement constructed on the land on which the lien was claimed.
In the instant case, from the averments of the bill, we do not understand that anything tangible or visible has been added to the land as a result of appellee's services, except perhaps stakes or markers placed on the land by the surveyor. We do not think it will be seriously contended that such stakes or markers constitute an "improvement" within the meaning of that word as it is employed in the statute.
We do not think that a surveyor who stakes out a subdivision and draws maps thereof is in the same position as an architect who prepares plans for a building or other tangible improvement.
The architect's plans which are actually used become a part of the building. The most that can be said of the surveyor's plat and stakes is that they designate the boundaries of the area within which some building or improvement may or may not be later constructed. We are of opinion that the work of pointing out the place where an improvement may afterwards be constructed is not and does not become a part of the improvement under the statute as it presently appears in the Code.
While we recognize that the right to a lien in any case depends on the particular *439 statute involved, for authorities from other jurisdictions supportive of the foregoing views, see the following cases:
In Armitage v. Bernheim, 32 Idaho 594, 600, 187 P. 938, 939, it was said:
Syllabus 4, by the court, in Buckingham v. Flummerfelt, 15 N.D. 112, 106 N.W. 403, recites:
In Daugherty v. Gunther, 88 Wash. 378, 153 P. 336, the court said:
We have not found any case where a mechanic's lien has been allowed for surveying services.
Here, we are concerned with a remedy given by statute for work done on an improvement on land. If the "improvement" contemplated by the statute does not exist, the remedy given by the statute does not apply.
The legislature has power to extend the right to a lien to cover surveyors' services, but this court does not.
Grounds 4, 5, 7, 8, 9, and 11 of the demurrer are to the effect that the bill fails to aver that appellee has performed services which entitle him to the lien claimed. These grounds are well taken and the decree overruling the demurrer is in error.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, SIMPSON and MERRILL, JJ., concur.
GOODWYN, J., concurs specially.
GOODWYN, Justice (specially concurring).
I agree with the opinion to the extent that it holds the demurrer to the bill should have been sustained.
*440 As I read the bill, there is no allegation that the land was actually subdivided and that the services rendered by appellee were actually used in establishing the subdivision. In this situation there is no question presented as to whether the actual use of such services would give to the surveyor a lien. However, as I read the opinion it contains statements which might be construed as excluding the right to a lien even though the plans prepared by the surveyor are actually used in subdividing the land into lots, including the construction of such things as streets, sidewalks, and sanitary and storm drainage lines.
On Rehearing
COLEMAN, Justice.
Appellee requests clarification "for the purpose of clearing up some ambiguity which may arise" from the opinion and for guidance in other cases where surveyors and "engineers" claim a lien.
We have not found the word "engineer" in the transcript in this case. The word "engineer" appears in the opinion in a direct quotation from a cited case. In any event, the right to a lien depends, not on the title or classification of the person who furnishes the labor, but on the nature of the services rendered.
The decision in this case, as in all cases, is based on the record of the proceedings in the court below as set out in the transcript filed in this court. We cannot anticipate what circumstances may appear hereafter in other cases.
If we were to express an opinion based on facts not shown by the record in this case, that opinion would be dicta and would not be binding in subsequent cases. This court has quoted with approval the following statement of this rule:
When another case involving different facts comes before us, it will be our duty to decide that case according to the law applicable to the facts then presented.
We answered in the negative the question in this case as that question was stated in brief by the appellee. The question so stated is set out in the original opinion.
The allegations of the bill of complaint are that the services rendered by appellee included:
From these allegations, we understand that the boundaries of the lots of the subdivision were actually staked out and marked on the ground, and that the center line of Road No. 1 was actually staked out and marked on the ground, all according to the plan or map prepared by appellee.
Our holding is that preparing such maps and placing stakes on the ground to mark the boundary lines of lots and streets according *441 to such maps is not labor on an improvement within the meaning of the mechanics' lien statute.
Opinion modified and extended. Application overruled.
LIVINGSTON, C. J., and LAWSON, SIMPSON, GOODWYN and MERRILL, JJ., concur.
GOODWYN, Justice (concurring).
In view of the modification of the original opinion I now concur in the original opinion as modified, and also in the foregoing opinion overruling the application for rehearing. | August 22, 1957 |
d9cc9c80-1e74-4aad-b6a5-b809c8388b05 | John O. Swanstrom, individually and as personal representative of the estate of John E. Swanstrom, Jr., et al. v. Teledyne Continental Motors, Inc., et al. | N/A | 1080269 | Alabama | Alabama Supreme Court | REL: 11/20/2009
Notice: T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e
Reporter of Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741
((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may
be
made b e f o r e
t h e o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1080269
John O. Swanstrom, i n d i v i d u a l l y and as p e r s o n a l
r e p r e s e n t a t i v e o f the e s t a t e o f John E. Swanstrom, J r . , e t
a l .
v.
Teledyne C o n t i n e n t a l Motors, I n c . ,
e t a l .
Appeal from M o b i l e C i r c u i t
Court
(CV-04-730)
SMITH,
J u s t i c e .
T h i s w r o n g f u l - d e a t h
a c t i o n a r i s e s o u t
o f
a s i n g l e - e n g i n e
a i r c r a f t c r a s h i n
w h i c h J o h n E. S w a n s t r o m , J r . ( " S w a n s t r o m " ) ,
was
f a t a l l y
i n j u r e d .
S w a n s t r o m ' s s o n ,
J o h n O.
S w a n s t r o m ,
1080269
i n d i v i d u a l l y
and as p e r s o n a l
r e p r e s e n t a t i v e
o f
S w a n s t r o m ' s
e s t a t e ,
f i l e d
t h i s a c t i o n i n t h e M o b i l e
C i r c u i t C o u r t
a g a i n s t
t h e m a n u f a c t u r e r s o f t h e a i r c r a f t , C i r r u s I n d u s t r i e s , I n c . ,
and C i r r u s D e s i g n C o r p o r a t i o n
( c o l l e c t i v e l y " C i r r u s " ) , and t h e
m a n u f a c t u r e r s o f t h e e n g i n e and t h e f u e l pump o f t h e a i r c r a f t ,
T e l e d y n e C o n t i n e n t a l M o t o r s , I n c . ,
and T e l e d y n e
T e c h n o l o g i e s ,
I n c .
( c o l l e c t i v e l y
" T e l e d y n e " ) .
The
c o m p l a i n t
was
l a t e r
amended t o i n c l u d e as p l a i n t i f f s S w a n s t r o m ' s w i f e , P a t r i c i a M.
S w a n s t r o m , and h i s d a u g h t e r s ,
S a l l y A. S w a n s t r o m and J e n n i f e r
J .
S w a n s t r o m .
J o h n
O.
S w a n s t r o m ,
P a t r i c i a
M.
S w a n s t r o m ,
S a l l y
A.
S w a n s t r o m ,
and
J e n n i f e r
J .
S w a n s t r o m
( c o l l e c t i v e l y
" t h e
p l a i n t i f f s " )
a p p e a l f r o m a summary j u d g m e n t e n t e r e d i n f a v o r
o f
T e l e d y n e and C i r r u s .
We
a f f i r m i n p a r t and r e v e r s e i n
p a r t .
F a c t s and P r o c e d u r a l
H i s t o r y
S w a n s t r o m was
k i l l e d when t h e a i r c r a f t he was
p i l o t i n g
c r a s h e d
i n A n g e l
F i r e , New M e x i c o , on May 28, 2002.
A t t h e
t i m e o f t h e c r a s h , S w a n s t r o m was t h e p i l o t and s o l e
o c c u p a n t
o f a s i n g l e - e n g i n e
C i r r u s SR-20
a i r c r a f t
("the a i r c r a f t " ) .
The a i r c r a f t i s d e s c r i b e d i n t h e r e c o r d as a l i g h t w e i g h t , t w o -
2
1080269
p a s s e n g e r , p r o p e l l e r - d r i v e n c o m p o s i t e a i r p l a n e w i t h a T e l e d y n e
IO-360-ES p i s t o n - d r i v e n
e n g i n e and a T e l e d y n e e n g i n e - d r i v e n
f u e l pump.
S w a n s t r o m was
a v e t e r a n M i n n e s o t a A i r N a t i o n a l
G u a r d
p i l o t who,
w i t h
f o u r o t h e r i n d i v i d u a l s , h a d
p u r c h a s e d
t h e
a i r c r a f t f r o m C i r r u s on M a r c h 29, 2 0 0 1 .
On t h e day o f t h e c r a s h , May 28, 2002, S w a n s t r o m was en
r o u t e
f r o m
P h o e n i x ,
A r i z o n a ,
t o D u l u t h , M i n n e s o t a .
A f t e r
d e p a r t i n g
f r o m
P h o e n i x ,
S w a n s t r o m
l a n d e d a t t h e a i r p o r t i n
A n g e l
F i r e ,
New
M e x i c o ,
t o h a v e
l u n c h and
t o
r e f u e l
t h e
a i r c r a f t .
A n g e l
F i r e
i s a
v i l l a g e
l o c a t e d
i n t h e M o r r e n o
V a l l e y , a p p r o x i m a t e l y 150 m i l e s n o r t h e a s t o f A l b u q u e r q u e ,
New
M e x i c o .
The A n g e l F i r e a i r p o r t i s l o c a t e d a t an e l e v a t i o n o f
8,320
f e e t
above
s e a
l e v e l ,
and
i t i s
s u r r o u n d e d
by
m o u n t a i n o u s t e r r a i n t o t h e e a s t and w e s t and
f l a t
t e r r a i n t o
t h e
n o r t h .
A f t e r S w a n s t r o m h a d r e f u e l e d h i s a i r c r a f t , he t a x i e d o n t o
t h e runway and r a d i o e d f o r t h e c u r r e n t t e m p e r a t u r e .
S w a n s t r o m
t h e n
l i f t e d
o f f w i t h o u t any a p p a r e n t
d i f f i c u l t y
and h e a d e d
n o r t h f r o m t h e A n g e l F i r e a i r p o r t .
A p p r o x i m a t e l y f o u r t o f i v e
m i n u t e s i n t o t h e f l i g h t , S w a n s t r o m c r a s h e d i n a h e a v i l y wooded
a r e a .
S w a n s t r o m ' s
a i r c r a f t was
f u l l y
f u e l e d a t t h e t i m e o f
3
1080269
t h e
c r a s h , and an e x p l o s i o n and g r o u n d
f i r e
f o l l o w e d t h e
i m p a c t .
J i m B a r r o n w i t n e s s e d a l m o s t t h e e n t i r e t y o f S w a n s t r o m ' s
f l i g h t
f r o m t h e A n g e l
F i r e
a i r p o r t .
B a r r o n d i e d b e f o r e h i s
d e p o s i t i o n c o u l d be t a k e n i n c o n n e c t i o n w i t h t h i s
c a s e , b u t
t h e N a t i o n a l T r a n s p o r t a t i o n S a f e t y B o a r d ("NTSB") i n v e s t i g a t e d
t h e c r a s h ,
1 and B a r r o n p r o v i d e d t h e NTSB w i t h t h e f o l l o w i n g
s t a t e m e n t :
" I n o t i c e d a s m a l l w h i t e p l a n e d o i n g i t s r u n - u p
i n
p r e p a r a t i o n f o r t a k e - o f f
f r o m t h e s o u t h e n d o f
t h e r u n w a y .
I p r o c e e d e d
n o r t h on Hwy 4 3 4 t o Hwy 64
t h e n n o r t h e a s t .
As I a p p r o a c h e d
DAV M e m o r i a l t h e
w h i t e
p l a n e
f l e w
o v e r me so l o w t h a t
i t g o t my
a t t e n t i o n .
I w a t c h e d t h e p l a n e as I t r a v e l e d n o r t h ,
and t h e n e a s t on C o u n t y Rd B-36.
The p l a n e seemed
t o be h a v i n g
t r o u b l e
g a i n i n g
a l t i t u d e .
I was a
s h o r t d i s t a n c e f r o m my home when t h e p l a n e f l e w b y
my h o u s e and w i t h i n
s e c o n d s
I saw b l a c k
b i l l o w i n g
smoke."
C r a i g C a r p e n t e r a l s o w i t n e s s e d S w a n s t r o m ' s f l i g h t .
C a r p e n t e r
d i e d
b e f o r e t h e p l a i n t i f f s
commenced
t h i s
a c t i o n ,
b u t he
p r o v i d e d t h e NTSB w i t h t h e f o l l o w i n g
s t a t e m e n t :
" I was w o r k i n g i n my shop w i t h t h e b a c k
d o o r
o p e n , when I h e a r d an a i r p l a n e
f l y i n g o v e r h e a d .
A t
1 S e e 49 U.S.C §§ 1131 and 1132 ( p r o v i d i n g
t h a t t h e NTSB
has t h e e x c l u s i v e a u t h o r i t y t o i n v e s t i g a t e a l l c i v i l - a v i a t i o n
a c c i d e n t s ) .
The NTSB i n v e s t i g a t e d t h e c r a s h w i t h
t e c h n i c a l
a s s i s t a n c e o f an e m p l o y e e f r o m
T e l e d y n e ,
J o h n
K e n t , and an
e m p l o y e e f r o m C i r r u s , M i k e
B u s c h .
4
1080269
f i r s t
I t h o u g h t
i t was Gene H u n t ' s
u l t r a
l i g h t
b u t
i t s o u n d e d f u n n y , so I s t e p p e d o u t t h e b a c k d o o r
and
l o o k e d
up
a t
t h e
p l a n e ,
i t was
a
s m a l l
w h i t i s h
p l a n e .
I t
seemed
t o
be
m i s s i n g
o r
r u n n i n g
e r a d i c a l l y
[ s i c ] , maybe
l i k e
s p u d d e r i n g
[ s i c ] , i t
was h e a d e d s o u t h .
I went b a c k t o w o r k t h i n k i n g
t h e
p l a n e n e e d e d a t u n e - u p
o r
s o m e t h i n g . "
M a t t h e w
B r o o k s
a l s o
o b s e r v e d
S w a n s t r o m ' s
f l i g h t .
I n
a
d e p o s i t i o n , B r o o k s
t e s t i f i e d as
f o l l o w s :
" I t
was
a b o u t
4:30
p.m.
when
t h e
p l a n e
was
f l y i n g
r e a l l y
l o w
a t a
r e l a t i v e l y
s l o w
s p e e d .
I
t u r n e d a r o u n d t o w a t c h as i t f l e w o v e r my h e a d .
As
i t was
t r y i n g t o c l i m b t h e m o u n t a i n - - o r
as i t f l e w
o v e r
my
h e a d ,
as
i t was
t r y i n g
t o
c l i m b
t h e
m o u n t a i n .
As
i t was
f l y i n g
p a r a l l e l
t h e
p l a n e
seemed t o s o u n d
l i k e any o t h e r p l a n e w o u l d ,
b u t
as
i t came c l o s e r t o t h e m o u n t a i n s
and
t r e e s i t t r i e d
t o e l e v a t e h i g h e r t h a n what i t was when i t f l e w o v e r
me.
A t t h a t p o i n t , t h e p l a n e g o t l o u d e r w i t h e v e r y
s e c o n d ,
t h e n s t a r t e d t o s p u t t e r as i t was
t r y i n g
t o
e l e v a t e h i g h e r .
As I was
w a t c h i n g
i t , i t seemed as
i f
t h e p l a n e was
n o t g a i n i n g any
e l e v a t i o n and
was
f l y i n g
a b o u t
t h e same h e i g h t as i t when--as i t was
when i t p a s s e d me.
When I was
s t i l l w a t c h i n g
i t , i t
m a d e - - i t made i t o v e r t h e
h i l l
i n f r o n t
o f me
and
n o t a s e c o n d
l a t e r , went q u i e t .
A f t e r t h e p l a n e
had
h i t t h e m o u n t a i n ,
t h e r e was
a moment o f s i l e n c e ,
I ' d
s a y one,
two
s e c o n d p a u s e b e f o r e t h e
e x p l o s i o n . "
The
day
a f t e r t h e c r a s h , May
29, 2002, S w a n s t r o m ' s b o d y
was
r e t r i e v e d f r o m t h e c r a s h s i t e and t a k e n t o t h e O f f i c e
o f
t h e M e d i c a l I n v e s t i g a t o r
f o r t h e
S t a t e o f New
M e x i c o .
D r .
R e b e c c a
I r v i n e p e r f o r m e d
an a u t o p s y
on S w a n s t r o m on May
30,
2002, and c o n c l u d e d t h a t S w a n s t r o m had d i e d o f m u l t i p l e
b l u n t -
5
1080269
f o r c e
i n j u r i e s .
D r .
I r v i n e
r e p o r t e d
t h a t
t h e
" a u t o p s y
r e v e a l e d m a s s i v e l y c h a r r e d r e m a i n s w i t h m u l t i p l e f r a c t u r e s o f
t h e
s k u l l , e x t r e m i t i e s and r i b s . ...
T h e r e was no
a p p r e c i a b l e
s o o t
w i t h i n t h e a i r w a y s ,
where
i n t a c t ,
i n d i c a t i n g
t h a t t h e
p i l o t
was
most
l i k e l y
d e a d
a t
t h e
t i m e
o f
t h e
t h e r m a l
i n j u r i e s . "
D r . I r v i n e a l s o r e p o r t e d t h a t t h e c a r b o n - m o n o x i d e
l e v e l i n S w a n s t r o m ' s b l o o d
c o u l d n o t be o b t a i n e d b e c a u s e o f
t h e
v i s c o s i t y o f h i s b l o o d .
As p a r t o f t h e NTSB's i n v e s t i g a t i o n o f t h e c r a s h , t h e New
M e x i c o
O f f i c e o f t h e M e d i c a l
I n v e s t i g a t o r p l a c e d
b l o o d
and
t i s s u e
s a m p l e s
t a k e n
f r o m
S w a n s t r o m ' s
b o d y
i n a
F e d e r a l
A v i a t i o n A d m i n i s t r a t i o n ("FAA") t o x i c o l o g y k i t
and m a i l e d t h e
k i t
t o a FAA
l a b o r a t o r y
i n O k l a h o m a
C i t y ,
O k l a h o m a .
D r .
I r v i n e
t e s t i f i e d t h a t " [ t ] h e k i t
comes w i t h i n s t r u c t i o n s , and
we
do
o u r b e s t
t o
f u l f i l l
t h o s e
i n s t r u c t i o n s .
We
a l w a y s
c o l l e c t o u r own m a t e r i a l s
f i r s t f o r t o x i c o l o g y , h o w e v e r .
And
t h e n we t r y t o g i v e [ t h e F A A ] e v e r y t h i n g
t h a t t h e y a s k f o r ,
a c c o r d i n g
t o
t h e i r
d i r e c t i o n s . "
The
FAA
r e c e i v e d
t h e
t o x i c o l o g y
k i t on J u n e 7, 2002 , a n d , on
J u l y 30, 2002 , i t
p u b l i s h e d
t h e
r e s u l t s
o f
i t s t e s t s
i n a
" F i n a l
F o r e n s i c
T o x i c o l o g y
F a t a l A c c i d e n t R e p o r t "
("the t o x i c o l o g y r e p o r t " ) .
6
1080269
The FAA r e p o r t e d
e l e v a t e d
l e v e l s o f c a r b o n m o n o x i d e and
c y a n i d e i n t h e b l o o d
s a m p l e t a k e n f r o m S w a n s t r o m .
The FAA
d o e s n o t r e p o r t t h e p r e s e n c e o f c a r b o n m o n o x i d e when
l e v e l s
a r e 10 p e r c e n t o r l e s s , and t h e FAA r e p o r t e d
t h a t t h e c a r b o n -
m o n o x i d e
l e v e l i n S w a n s t r o m ' s
b l o o d
s a m p l e was 12
p e r c e n t .
The t o x i c o l o g y r e p o r t a l s o s t a t e d t h a t " [ n ] o r m a l
b l o o d
c y a n i d e
c o n c e n t r a t i o n s
a r e
l e s s
t h a n
.15
u g / m l ,
w h i l e
l e t h a l
c o n c e n t r a t i o n s
a r e g r e a t e r t h a n 3 u g / m l , " and t h a t t h e l e v e l
o f c y a n i d e i n S w a n s t r o m ' s b l o o d was .98 u g / m l .
The NTSB c o m p l e t e d i t s
i n v e s t i g a t i o n o f t h e c r a s h and
i s s u e d a " F a c t u a l R e p o r t " s t a t i n g t h a t i t s
e x a m i n a t i o n o f
t h e
w r e c k a g e o f t h e a i r c r a f t a t t h e c r a s h
s i t e , as w e l l as t h e
e x a m i n a t i o n
o f t h e e n g i n e
o f t h e a i r c r a f t
a t a
T e l e d y n e
f a c i l i t y ,
r e v e a l e d no m e c h a n i c a l o r s t r u c t u r a l a n o m a l i e s
t h a t
had
c o n t r i b u t e d t o t h e c r a s h .
The r e p o r t a l s o s t a t e s t h a t t h e
NTSB " I n v e s t i g a t o r - I n - C h a r g e "
c a l c u l a t e d t h e d e n s i t y
a l t i t u d e
a t t h e s i t e o f t h e c r a s h t o be 11,807 f e e t mean s e a
l e v e l .
The r e p o r t s t a t e s t h a t C i r r u s r e p o r t e d
t h a t a t s u c h a d e n s i t y
a l t i t u d e t h e t a k e o f f r a t e o f c l i m b o f t h e a i r c r a f t w o u l d h a v e
b e e n r e d u c e d f r o m i t s s t a n d a r d 920 f e e t p e r m i n u t e t o 406 f e e t
p e r
m i n u t e .
C i r r u s
s t a t e s
t h a t
t h e c l i m b
r a t e
d e c r e a s e s
7
1080269
b e c a u s e
t h e l o w v o l u m e
o f a i r a t h i g h - d e n s i t y
a l t i t u d e s
p r o v i d e s l e s s o x y g e n f o r t h e c o m b u s t i o n - p o w e r e d p i s t o n - d r i v e n
e n g i n e s
l i k e t h e one i n t h e a i r c r a f t .
On M a r c h 8, 2004 , J o h n O. S w a n s t r o m s u e d T e l e d y n e a n d
C i r r u s i n t h e M o b i l e
C i r c u i t
C o u r t
a l l e g i n g t h a t S w a n s t r o m ' s
a c c i d e n t h a d r e s u l t e d
f r o m
e n g i n e
f a i l u r e .
2
The
c o m p l a i n t
a l l e g e d
t h a t T e l e d y n e ' s a n d C i r r u s ' s n e g l i g e n c e
r e s u l t e d i n
" e n g i n e
a n d / o r o t h e r
a i r c r a f t
s y s t e m m a l f u n c t i o n o r f a i l u r e "
t h a t c a u s e d t h e c r a s h . The c o m p l a i n t a s s e r t e d t h a t T e l e d y n e ' s
n e g l i g e n c e
i n c l u d e d , b u t was n o t l i m i t e d
t o , i t s " n e g l i g e n t
f a i l u r e
t o p r o p e r l y "
d e s i g n ,
m a n u f a c t u r e ,
t e s t ,
i n s p e c t ,
b u i l d ,
c o n s t r u c t , a s s e m b l e , a n d i n s t a l l t h e " e n g i n e a n d i t s
component p a r t s , s p e c i f i c a l l y i n c l u d i n g t h e
e n g i n e - d r i v e n
f u e l
pump," a n d i t s n e g l i g e n t
f a i l u r e
t o "warn o f p r e v i o u s i n ¬
f l i g h t
p r o b l e m s
w i t h t h e e n g i n e - d r i v e n
f u e l pump."
As t o
2 T h e
t r i a l
c o u r t h a d p e r s o n a l j u r i s d i c t i o n
o v e r
T e l e d y n e
b e c a u s e T e l e d y n e m a i n t a i n s i t s p r i n c i p a l
p l a c e o f b u s i n e s s i n
M o b i l e a n d t h e e n g i n e i n
S w a n s t r o m ' s a i r c r a f t was d e s i g n e d a n d
m a n u f a c t u r e d a t a T e l e d y n e
f a c i l i t y i n t h e S t a t e o f A l a b a m a .
The
t r i a l
c o u r t h a d p e r s o n a l
j u r i s d i c t i o n
o v e r
C i r r u s ,
a
M i n n e s o t a
c o r p o r a t i o n , b e c a u s e C i r r u s c o n d u c t s
c o n t i n u o u s a n d
s y s t e m a t i c
b u s i n e s s
w i t h i n
t h e
S t a t e
o f A l a b a m a .
See
H e l i c o p t e r o s N a c i o n a l e s de C o l o m b i a ,
S.A. v . H a l l , 466 U.S.
408,
414-16
(1984)
( h o l d i n g t h a t " c o n t i n u o u s
a n d s y s t e m a t i c
c o n t a c t s "
w i t h
a
s t a t e
c a n
f o r m
a
b a s i s
f o r p e r s o n a l
j u r i s d i c t i o n ) .
8
1080269
C i r r u s , t h e c o m p l a i n t
a l l e g e d
t h a t i t s
n e g l i g e n c e
i n c l u d e d ,
b u t was n o t l i m i t e d t o , i t s
" n e g l i g e n t
f a i l u r e t o
p r o p e r l y "
d e s i g n ,
m a n u f a c t u r e ,
b u i l d ,
c o n s t r u c t ,
a s s e m b l e ,
i n s t a l l ,
t e s t , and i n s p e c t t h e a i r c r a f t .
The c o m p l a i n t
f u r t h e r
a l l e g e d
t h a t
C i r r u s h a d b r e a c h e d
e x p r e s s
and
i m p l i e d
w a r r a n t i e s
t o
S w a n s t r o m
and
o t h e r
f o r e s e e a b l e
p u r c h a s e r s
o f
t h e
a i r c r a f t .
Those
a l l e g e d
w a r r a n t i e s
i n c l u d e d a w a r r a n t y t h a t t h e a i r c r a f t was f r e e o f
d e f e c t s ,
s a f e , a i r w o r t h y , and r e a s o n a b l y f i t f o r i t s
i n t e n d e d
and
f o r e s e e a b l e
u s e and p u r p o s e .
The c o m p l a i n t a l l e g e d
t h a t
C i r r u s b r e a c h e d t h o s e e x p r e s s and i m p l i e d w a r r a n t i e s
when i t
d e s i g n e d , m a n u f a c t u r e d ,
t e s t e d ,
i n s p e c t e d ,
a s s e m b l e d ,
s o l d ,
and
r e l e a s e d
i n t o t h e s t r e a m o f commerce an a i r c r a f t i t knew
o r r e a s o n a b l y
s h o u l d
h a v e known was " ( a ) n o t a i r w o r t h y ; (b)
d e f e c t i v e ;
(c) d a n g e r o u s
and n o t
o t h e r w i s e
f i t
f o r
i t s
i n t e n d e d
u s e and p u r p o s e ; (d) n o t o f m e r c h a n t a b l e
q u a l i t y ;
[and]
(e) an u n r e a s o n a b l e
r i s k o f harm t o c o n s u m e r s . "
L a s t l y , t h e c o m p l a i n t
a l l e g e d
t h a t
T e l e d y n e and
C i r r u s
were s t r i c t l y
l i a b l e f o r
S w a n s t r o m ' s d e a t h b e c a u s e t h e e n g i n e ,
t h e
f u e l
pump,
and
t h e
a i r c r a f t
were
d e f e c t i v e
and
u n r e a s o n a b l y d a n g e r o u s .
9
1080269
The
p l a i n t i f f s
r e t a i n e d D o n a l d Sommer as an
a v i a t i o n -
a c c i d e n t - r e c o n s t r u c t i o n e x p e r t a n d p r o f e s s i o n a l e n g i n e e r , a n d
R i c h a r d M c S w a i n , Ph.D, as a m e t a l l u r g y e x p e r t a n d p r o f e s s i o n a l
e n g i n e e r , t o i n v e s t i g a t e t h e c a u s e o f t h e c r a s h .
As p a r t o f
t h e i r i n v e s t i g a t i o n ,
Sommer a n d M c S w a i n e x a m i n e d t h e w r e c k a g e
o f t h e a i r c r a f t a n d d i s a s s e m b l e d
t h e f u e l pump a f t e r t h e NTSB
had c o m p l e t e d i t s i n v e s t i g a t i o n . I n F e b r u a r y 2006, Sommer
a n d
M c S w a i n e a c h s u b m i t t e d a r e p o r t s t a t i n g t h a t t h e f u e l pump h a d
f a i l e d
d u r i n g
S w a n s t r o m ' s
f l i g h t .
M c S w a i n , i n h i s r e p o r t ,
d e s c r i b e d t h e f u e l pump as f o l l o w s :
"The
f u e l
pump i s a s s e m b l e d
w i t h
f i v e
s e g m e n t s
c o n n e c t e d b y t h r u - b o l t s . The s e g m e n t s a r e t h e f u e l
pump a d a p t e r , t h e i n s u l a t o r , t h e b o d y a s s e m b l y , t h e
v a p o r a s s e m b l y a n d t h e r e l i e f
v a l v e
c o v e r
a s s e m b l y
The
t h r u - b o l t s p a s s
f r o m t h e r e l i e f
v a l v e
c o v e r
a s s e m b l y
a n d
t h r e a d
i n t o
t h e
f u e l
pump
a d a p t e r .
The t h r u - b o l t s a r e i n s t a l l e d w i t h
b a c k - t o -
b a c k B e l l e v i l l e w a s h e r s u n d e r t h e h e a d s t o m a i n t a i n
c l a m p - u p o f t h e
pump s e g m e n t s . "
M c S w a i n r e p o r t e d t h a t t h e f u e l pump "was f o u n d w i t h l o o s e pump
s e g m e n t s s u b s e q u e n t t o t h e a c c i d e n t " a n d t h a t i t h a d " e v i d e n c e
o f
f u e l l e a k a g e a t t h e
pump b o d y - t o - v a p o r s e p a r a t o r
a s s e m b l y
i n t e r f a c e . "
M c S w a i n c o n c l u d e d
t h a t l e a k a g e f r o m t h e f u e l pump
was
t h e " r e s u l t o f [ t h e ]
c o m p r e s s i o n s e t o f t h e p o l y m e r i c
m a t e r i a l s b e t w e e n t h e pump s e g m e n t s , a n d r e s u l t i n g
l o s s o f
10
1080269
c l a m p - u p ,
a n d
e i t h e r
i n a d e q u a t e
a s s e m b l y
t o r q u e
o r t h e
i n a b i l i t y o f t h e pump t h r u - b o l t s a n d B e l l e v i l l e
w a s h e r s t o
t a k e
up t h e l o s s
o f c l a m p - u p
f o r c e . "
M c S w a i n
f u r t h e r
c o n c l u d e d t h a t t h e f u e l pump was
" d e f e c t i v e
a s - a s s e m b l e d i n t h a t t h e t h r u - b l o t a n d
B e l l e v i l l e
w a s h e r a s s e m b l y was i n c a p a b l e
o f t a k i n g
up t h e l o s s o f c l a m p - u p
f o r c e s
t h a t
r e s u l t e d
f r o m
t h e
c o m p r e s s i o n
s e t o f t h e p o l y m e r i c
m a t e r i a l s
l o c a t e d b e t w e e n t h e pump s e g m e n t s a n d t h e l a c k o f
any
[ T e l e d y n e ]
p r o c e d u r e
i n
p l a c e
t o
r e q u i r e
p e r i o d i c r e t o r q u e i n g
[ s i c ] o f t h e s u b j e c t
t y p e pump
t h r u - b o l t s t o m a i n t a i n pump a s s e m b l y c l a m p - u p . "
Sommer,
i n h i s r e p o r t ,
a l s o
c o n c l u d e d
t h a t
" [ t ] h e
c o m p o n e n t s o f t h e e n g i n e d r i v e n
f u e l pump l o o s e n e d
a l l o w i n g
l e a k a g e o f f u e l
f r o m t h e pump i n t o t h e e n g i n e
c o m p a r t m e n t .
T h i s
f u e l
l e a k a g e r e s u l t e d i n
an i n - f l i g h t
e n g i n e
f i r e .
The
i n - f l i g h t
f i r e
c o m b i n e d
w i t h
t h e
l o s s
o f
e n g i n e
power
d i s t r a c t e d t h e p i l o t ,
c a u s i n g
t h e c r a s h . "
Sommer
f u r t h e r
c o n c l u d e d t h a t t h e f a i l u r e o f t h e f u e l pump " o c c u r r e d due t o
i m p r o p e r a s s e m b l y a t t h e [ T e l e d y n e ]
f a c t o r y o r l o o s e n i n g o f
a s s e m b l y c o m p o n e n t s s u b s e q u e n t t o l e a v i n g
[ T e l e d y n e ] . "
I n A p r i l 2006, M c S w a i n s u p p l e m e n t e d h i s
i n i t i a l r e p o r t t o
add
h i s o b s e r v a t i o n s
a n d
c o n c l u s i o n s
f r o m
a
"component
i n s p e c t i o n " he h a d a t t e n d e d a t a company known as " M a t e r i a l s
A n a l y s i s ,
I n c . , " on A p r i l
17-18
,
200 6, as w e l l as h i s own
11
1080269
e x e m p l a r
t e s t i n g on t h e e n g i n e a n d t h e f u e l pump.
M c S w a i n
r e p o r t e d
t h a t a d d i t i o n a l a n a l y s i s o f t h e e n g i n e a n d t h e f u e l
pump i n d i c a t e d t h a t t h e " r i g h t e x t e r n a l s i d e o f t h e o i l
sump
e x h i b i t e d h e a t damage a n d e v i d e n c e o f f o r w a r d t o r e a r h o t
g a s
f l o w a n d s u r f a c e
d e p o s i t
b u r n i n g
i n an a r e a
j u s t
a f t
t h e
e n g i n e - d r i v e n
f u e l pump, c o n s i s t e n t w i t h an i n - f l i g h t
f u e l
f i r e . "
M c S w a i n
f u r t h e r
r e p o r t e d
t h a t t h e " i n d u c t i o n
t u b e
m e l t i n g showed f l o w p a t t e r n s a n d t h i n n i n g o f t h e t u b e s
t h a t
r e s u l t e d
f r o m
f r o n t t o r e a r a i r
f l o w
i n d i c a t i v e o f an
i n ¬
f l i g h t
f i r e . "
M c S w a i n c o n c l u d e d h i s s u p p l e m e n t a l r e p o r t b y
s t a t i n g
t h a t t h e " e n g i n e
r i g h t
s i d e h e a t damage a n d r e s i d u e
b u r n i n g a n d i n d u c t i o n t u b e m e l t i n g was t h e r e s u l t o f an i n ¬
f l i g h t
f i r e c a u s e d b y t h e l e a k i n g f u e l pump."
I n J u l y 2006, Sommer a l s o s u p p l e m e n t e d h i s i n i t i a l
r e p o r t
a f t e r a t t e n d i n g t h e i n s p e c t i o n o f t h e e n g i n e a n d f u e l pump a t
M a t e r i a l s
A n a l y s i s ,
I n c .
Sommer
a d d e d
t h e
f o l l o w i n g
o b s e r v a t i o n s a n d c o n c l u s i o n s :
" T h e r e were
s i g n a t u r e s on t h e i n t a k e
m a n i f o l d
t h a t were i n d i c a t i v e o f an i n - f l i g h t
f i r e
e m a n a t i n g
f r o m t h e f o r w a r d r i g h t h a n d s i d e o f t h e e n g i n e .
" T h e r e were s o o t p a t t e r n s on t h e o i l
sump, r i g h t
h a n d c y l i n d e r b a s e s , a n d r i g h t h a n d e n g i n e c a s e h a l f
t h a t were c o n s i s t e n t w i t h an i n - f l i g h t
f i r e on t h e
r i g h t h a n d f o r w a r d s i d e o f t h e e n g i n e .
12
1080269
" M a r k i n g s were d i s c o v e r e d
on
t h e
i n s i d e o f
t h e
o i l
pan
t h a t were c o n s i s t e n t w i t h
t h e e n g i n e
b e i n g
i n
a more o r l e s s u p t i g h t p o s i t i o n d u r i n g
t h e
p o s t
i m p a c t
f i r e .
"The
c a b i n h e a t m i x i n g v a l v e was
i n a c o n d i t i o n
t h a t w o u l d have
a l l o w e d
p r o d u c t s
o f c o m b u s t i o n
t o
p a s s
f r o m
t h e
e n g i n e c o m p a r t m e n t
t o
t h e
p a s s e n g e r
c o m p a r t m e n t o f t h e
a i r c r a f t . "
O v e r t h e n e x t two
y e a r s
t h e p a r t i e s c o n d u c t e d
e x t e n s i v e
d i s c o v e r y .
P e r t i n e n t t o t h i s a p p e a l ,
t h e
p l a i n t i f f s
d e p o s e d
T e l e d y n e e m p l o y e e Howard Thompson d u r i n g J u n e 2006.
D u r i n g
t h e
d e p o s i t i o n ,
c o u n s e l
f o r T e l e d y n e
i n s t r u c t e d Thompson,
p u r s u a n t t o R u l e 2 6 ( b ) ( 4 ) ( B ) , A l a . R.
C i v . P.,
n o t
t o a n s w e r
many
o f
t h e
q u e s t i o n s
b e c a u s e Thompson
was
e m p l o y e d
as
a
" s e n i o r t e c h n i c a l a d v i s o r " i n T e l e d y n e ' s l e g a l d e p a r t m e n t
and
was
a s s i g n e d
t o
a s s i s t
i n
t h e
d e f e n s e
o f
t h i s
c a s e .
3
I n
r e s p o n s e , t h e p l a i n t i f f s moved t o c o m p e l d e p o s i t i o n r e s p o n s e s
3 R u l e 2 6 ( b ) ( 4 ) ( B )
p r o v i d e s
as f o l l o w s :
"A p a r t y may
d i s c o v e r
f a c t s known o r o p i n i o n s
h e l d
by
an
e x p e r t
who
has
b e e n
r e t a i n e d ,
s p e c i a l l y
e m p l o y e d
o r
a s s i g n e d
by
a n o t h e r
p a r t y
i n
a n t i c i p a t i o n o f
l i t i g a t i o n
o r p r e p a r a t i o n f o r
t r i a l
and who
i s n o t e x p e c t e d t o be
c a l l e d as a w i t n e s s
a t
t r i a l ,
o n l y
as
p r o v i d e d
i n R u l e
35(b)
o r
upon
a
s h o w i n g o f e x c e p t i o n a l c i r c u m s t a n c e s
u n d e r w h i c h i t
i s i m p r a c t i c a b l e f o r t h e p a r t y s e e k i n g
d i s c o v e r y
t o
o b t a i n
f a c t s
o r
o p i n i o n s
on
t h e
same
s u b j e c t
by
o t h e r means."
13
1080269
f r o m Thompson p u r s u a n t t o R u l e 37, A l a .
R. C i v .
P.
The
t r i a l
c o u r t d e n i e d t h e m o t i o n w i t h o u t a w r i t t e n o r d e r .
D u r i n g
J u n e
2006,
t h e
p l a i n t i f f s
a l s o
n o t i c e d
t h e
d e p o s i t i o n o f C i r r u s e m p l o y e e
B i l l
K i n g .
P u r s u a n t
t o
R u l e
3 0 ( b ) ( 5 ) , A l a .
R. C i v . P., t h e n o t i c e a s k e d
K i n g t o p r o d u c e
c e r t a i n d o c u m e n t s a t t h e d e p o s i t i o n .
A f t e r
K i n g
f a i l e d t o
p r o d u c e
s e v e r a l o f t h e r e q u e s t e d
d o c u m e n t s , t h e
p l a i n t i f f s
moved t o c o m p e l p r o d u c t i o n o f t h e d o c u m e n t s p u r s u a n t
t o R u l e
37, A l a .
R. C i v .
P. The t r i a l c o u r t d e n i e d t h e m o t i o n
w i t h o u t
a w r i t t e n o r d e r .
The
l a s t
s c h e d u l i n g o r d e r e n t e r e d b y t h e t r i a l
c o u r t c u t
o f f
d i s c o v e r y on A u g u s t 15, 2008, and s e t t h e c a s e f o r t r i a l
on O c t o b e r 20, 2008.
On A u g u s t 29, 2008, t h e p l a i n t i f f s moved
t o amend t h e i r
c o m p l a i n t , p u r s u a n t t o R u l e 1 5 ( b ) , A l a . R.
C i v .
P., t o c o n f o r m t o t h e e v i d e n c e .
The p l a i n t i f f s s o u g h t t o
f i l e
a f o u r t h amended c o m p l a i n t t o add new c l a i m s a l l e g i n g t h a t t h e
d e s i g n o f t h e h e a t e r - v a l v e a s s e m b l y and n o n m e t a l l i c d u c t w o r k
o f t h e a i r c r a f t
were
d e f e c t i v e , t h a t t h e h a n d b o o k f o r t h e
a i r c r a f t
f a i l e d
t o i n c l u d e a d e q u a t e
i n f o r m a t i o n a b o u t t h e
p e r f o r m a n c e
o f t h e
a i r c r a f t
a t h i g h
a l t i t u d e s ,
and
t h a t
T e l e d y n e
and
C i r r u s
h a d
e a c h
made
f r a u d u l e n t
14
1080269
m i s r e p r e s e n t a t i o n s o f f a c t "when [ t h e y ] h e l d [ t h e m s e l v e s ] o u t
t o be ... n e u t r a l p a r t [ i e s ] t o t h e NTSB
i n v e s t i g a t i o n
team"
i n v e s t i g a t i n g S w a n s t r o m ' s
c r a s h , as a r e s u l t o f w h i c h , t h e
p l a i n t i f f s
c l a i m e d ,
t h e y
were
" f o r c e d
t o
h i r e
t h e i r
own
a c c i d e n t
r e c o n s t r u c t i o n i s t s
and e n d u r e y e a r s o f u n n e c e s s a r y
d i s c o v e r y r e g a r d i n g t h e f a i l u r e mode o f t h e s u b j e c t
a i r c r a f t ' s
e n g i n e and e n g i n e - d r i v e n
f u e l pump."
The
t r i a l
c o u r t
d e n i e d
t h e m o t i o n w i t h o u t a w r i t t e n o r d e r .
On
S e p t e m b e r
3,
2008,
T e l e d y n e
moved
f o r a
summary
j u d g m e n t as t o a l l t h e p l a i n t i f f s ' c l a i m s
a g a i n s t
i t .
T h a t
same d a y , T e l e d y n e
a l s o moved t o e x c l u d e
t h e
p u r p o r t e d l y
e x p e r t
o p i n i o n s o f M c S w a i n .
Two d a y s l a t e r , on S e p t e m b e r 5,
2008, T e l e d y n e moved t o s t r i k e t h e p u r p o r t e d l y e x p e r t
o p i n i o n s
o f Sommer.
T h e r e a f t e r , C i r r u s moved f o r
a summary j u d g m e n t as
t o
a l l
t h e
p l a i n t i f f s '
c l a i m s
a g a i n s t
i t , and i t j o i n e d
T e l e d y n e ' s summary-judgment m o t i o n and m o t i o n t o e x c l u d e t h e
o p i n i o n s
o f M c S w a i n .
I n
t h e i r
summary-judgment
m o t i o n s ,
T e l e d y n e and C i r r u s a r g u e d t h a t t h e e v i d e n c e
r e l i e d upon b y
M c S w a i n and Sommer was e q u a l l y p r o b a t i v e o f a c r a s h c a u s e d b y
p i l o t
e r r o r r e s u l t i n g i n a s e v e r e g r o u n d
f i r e .
T e l e d y n e and
C i r r u s
s u p p o r t e d
t h e i r
t h e o r y o f p i l o t
e r r o r b y n o t i n g
t h a t
15
1080269
t h e c l i m b r a t e o f an a i r c r a f t d e c r e a s e s w i t h i n c r e a s e d
d e n s i t y
a l t i t u d e a n d t h a t S w a n s t r o m
l a c k e d
e x p e r i e n c e i n " m o u n t a i n
f l y i n g . "
T e l e d y n e a n d C i r r u s s u p p o r t e d t h e i r summary-judgment
m o t i o n s
w i t h
v a r i o u s
e v i d e n c e ,
i n c l u d i n g t h e NTSB
r e p o r t
s t a t i n g t h a t i t
f o u n d no a n o m a l i e s w i t h t h e
e n g i n e o r t h e f u e l
pump f o l l o w i n g t h e c r a s h , a n d t e s t i m o n y f r o m G a r r Thomas, who
had p e r f o r m e d an a n n u a l
i n s p e c t i o n on t h e a i r c r a f t i n A p r i l
2002 a n d f o u n d no e v i d e n c e
d u r i n g
t h a t
i n s p e c t i o n
t h a t t h e
f u e l pump was l e a k i n g .
T e l e d y n e a n d C i r r u s
a l s o
f i l e d more
t h a n
30
m o t i o n s
i n l i m i n e
t o e x c l u d e
v a r i o u s
e v i d e n c e ,
i n c l u d i n g t h e s t a t e m e n t o f e y e w i t n e s s
C r a i g
C a r p e n t e r , t h e
t o x i c o l o g y r e p o r t a n d a l l t e s t i m o n y b a s e d upon t h e r e p o r t , a n d
a l l
t e s t i m o n y r e g a r d i n g any a l l e g e d
e f f e c t o f " t o x i c g a s e s "
and " p r o d u c t s o f c o m b u s t i o n " on S w a n s t r o m .
I n r e s p o n s e t o t h e summary-judgment m o t i o n s o f T e l e d y n e
and
C i r r u s ,
t h e
p l a i n t i f f s
p r o d u c e d
v a r i o u s
e v i d e n c e ,
i n c l u d i n g an a f f i d a v i t o f Sommer.
I n t h e a f f i d a v i t , Sommer
s t a t e s , i n p e r t i n e n t
p a r t :
"As p r e v i o u s l y
s t a t e d t h e d e s i g n d e f e c t ,
w h i c h
i s common t o a l l
t h e s e e n g i n e s , i s
t h e f a c t t h a t t h e
f u e l pump i s
s a n d w i c h e d b e t w e e n s e v e r a l
a c c r u t e m e n t s
[ s i c ]
s t a c k e d up l i k e a 'Dagwood
s a n d w i c h . '
T h i s
s t a c k up o f p a r t s w h i c h
[ T e l e d y n e ] r e f e r s t o as ' t h e
f u e l pump a s s e m b l y ' i s s u b j e c t t o s e v e r a l
p r o b l e m s
16
1080269
w h i c h
i n c l u d e , b o l t s t r e t c h , g a s k e t p r e s e t , m a t i n g
s u r f a c e
t o l e r a n c e s , v i b r a t o r y
i s s u e s , e t c .
The
r e s u l t
i s
f u e l
l e a k a g e
b e t w e e n
m a t i n g
s u r f a c e s
a n d / o r s e a l s .
T h e r e i s no r e q u i r e m e n t t o
e n g i n e e r
an
a l t e r n a t i v e d e s i g n
f o r t h e r e a s o n s
t h a t
w i t h i n
t h e
g e n e r a l
a v i a t i o n i n d u s t r y
t h e r e
a l r e a d y
e x i s t
many a l t e r n a t i v e s .
I t i s a s i m p l e m a t t e r o f h a v i n g
t h e
pump
s t a n d
a l o n e ,
r a t h e r
t h a n
be
s q u e e z e d
b e t w e e n a l i n e o f a c r u d i m e n t s
[ s i c ] s u c h as
a d a p t e r
v a p o r s e p a r a t o r , a n e r o i d , and f u e l m i x t u r e
d e v i c e s . "
On O c t o b e r 13, 2008, t h e t r i a l
c o u r t
h e l d a h e a r i n g on
a l l p e n d i n g m o t i o n s .
Two d a y s l a t e r on O c t o b e r 15, 2008, t h e
t r i a l
c o u r t
i s s u e d
a
w i d e - r a n g i n g
o r d e r
e x c l u d i n g
t h e
t o x i c o l o g y
r e p o r t , a l l
o p i n i o n s
b a s e d upon t h e t o x i c o l o g y
r e p o r t , Sommer's o p i n i o n t h a t a f u e l l e a k c a u s e d an
i n - f l i g h t
f i r e , Sommer's o p i n i o n t h a t " p r o d u c t s
o f c o m b u s t i o n "
e n t e r e d
t h e
c o c k p i t
o f t h e
a i r c r a f t ,
and Sommer's
o p i n i o n
t h a t
S w a n s t r o m
was
" e s s e n t i a l l y
p o i s o n e d
by
t h e
p r o d u c t s
o f
c o m b u s t i o n . "
The
n e x t d a y , O c t o b e r 16, 2 0 0 8 , t h e t r i a l
c o u r t
e n t e r e d
a summary j u d g m e n t i n f a v o r o f C i r r u s as t o t h e p l a i n t i f f s '
c l a i m s a l l e g i n g b r e a c h o f e x p r e s s and i m p l i e d w a r r a n t i e s .
I n
a
s e p a r a t e
o r d e r
i s s u e d
l a t e r
t h a t
d a y , t h e
t r i a l
c o u r t
e n t e r e d a summary j u d g m e n t i n f a v o r o f C i r r u s and T e l e d y n e as
t o
t h e p l a i n t i f f s '
n e g l i g e n c e
and
s t r i c t - l i a b i l i t y
c l a i m s .
T h a t o r d e r
s t a t e d , as f o l l o w s :
17
1080269
" I t a p p e a r i n g t o t h e C o u r t
t h a t , b a s e d upon t h e
r e c o r d as i t a p p e a r s a t t h i s
t i m e ,
P l a i n t i f f s
h a v e
f a i l e d
t o a d d u c e
s u b s t a n t i a l e v i d e n c e
t h a t
any
a l l e g e d
d e f e c t
i n t h e
e n g i n e
d r i v e n
f u e l
pump
p r o x i m a t e l y
c a u s e d an
i n - f l i g h t
f i r e
r e s u l t i n g i n
t h e
c r a s h
a n d
d e a t h
o f
[ S w a n s t r o m ] .
L a c k i n g
s u f f i c i e n t
e v i d e n c e
on
a t
l e a s t
t h i s
c r i t i c a l
e l e m e n t , P l a i n t i f f s ' c l a i m s o f n e g l i g e n c e and
s t r i c t
l i a b i l i t y a r e due t o be
d i s m i s s e d . "
N o t a b l y ,
t h e
t r i a l
c o u r t
n e v e r
r u l e d on t h e m o t i o n s
o f
T e l e d y n e a n d C i r r u s t o e x c l u d e t h e p u r p o r t e d l y e x p e r t
o p i n i o n s
o f M c S w a i n and t h e s t a t e m e n t o f e y e w i t n e s s
C r a i g
C a r p e n t e r .
The
p l a i n t i f f s
now
a p p e a l .
T h e i r
a p p e a l
p r e s e n t s
numerous l e g a l i s s u e s , i n c l u d i n g : ( 1 )
w h e t h e r t h e t r i a l
c o u r t
e r r e d
i n e x c l u d i n g t h e t o x i c o l o g y r e p o r t ; ( 2 ) w h e t h e r t h e
t r i a l
c o u r t e r r e d e x c l u d i n g a l l e x p e r t
t e s t i m o n y
b a s e d upon
t h e
e x c l u d e d
t o x i c o l o g y r e p o r t ; ( 3 ) w h e t h e r t h e t r i a l
c o u r t
e r r e d i n e x c l u d i n g t h e p u r p o r t e d l y e x p e r t o p i n i o n s o f Sommer;
(4)
w h e t h e r
t h e
t r i a l
c o u r t
e r r e d
i n e n t e r i n g a
summary
j u d g m e n t
i n
f a v o r
o f
C i r r u s
and
T e l e d y n e
on
a l l t h e
p l a i n t i f f s '
c l a i m s ; (5) w h e t h e r
t h e
t r i a l
c o u r t
e r r e d i n
d e n y i n g
t h e p l a i n t i f f s '
m o t i o n
t o amend t h e c o m p l a i n t
t o
c o n f o r m w i t h t h e e v i d e n c e ; and (6) w h e t h e r t h e t r i a l
c o u r t
e r r e d
i n d e n y i n g
t h e
p l a i n t i f f s '
m o t i o n s
t o c o m p e l t h e
18
1080269
p r o d u c t i o n o f d o c u m e n t s and i n f o r m a t i o n
h e l d by e m p l o y e e s o f
T e l e d y n e and C i r r u s .
S t a n d a r d o f R e v i e w
I n r e v i e w i n g a r u l i n g on t h e a d m i s s i b i l i t y o f
e v i d e n c e ,
i n c l u d i n g e x p e r t
t e s t i m o n y ,
t h e s t a n d a r d i s
w h e t h e r t h e
t r i a l
c o u r t e x c e e d e d i t s d i s c r e t i o n i n e x c l u d i n g t h e e v i d e n c e .
I n
Bowers
v. W a l - M a r t
S t o r e s ,
I n c . , 827 So. 2d 63, 71 ( A l a .
2 0 0 1 ) ,
t h i s C o u r t
s t a t e d :
"When e v i d e n t i a r y r u l i n g s o f t h e
t r i a l
c o u r t
a r e
r e v i e w e d
on
a p p e a l ,
' r u l i n g s
on
t h e
a d m i s s i b i l i t y o f e v i d e n c e a r e w i t h i n t h e s o u n d d i s c r e t i o n o f
t h e
t r i a l j u d g e and w i l l n o t be d i s t u r b e d on a p p e a l a b s e n t an
a b u s e o f t h a t d i s c r e t i o n . ' " ( Q u o t i n g Bama's B e s t P a r t y
S a l e s ,
I n c .
v . T u p p e r w a r e ,
U.S.,
I n c . , 723 So. 2d 29, 32 ( A l a .
1 9 9 8 ) . )
As t o t h e s t a n d a r d
o f r e v i e w
when t h e i s s u e i s
w h e t h e r a w i t n e s s
s h o u l d be a l l o w e d t o t e s t i f y as an
e x p e r t ,
" [ t ] h e m a t t e r i s ' l a r g e l y d i s c r e t i o n a r y w i t h t h e t r i a l
c o u r t ,
and
t h a t
c o u r t ' s
j u d g m e n t
w i l l
n o t be
d i s t u r b e d
a b s e n t an
a b u s e o f d i s c r e t i o n . ' " K y s e r v . H a r r i s o n , 908 So. 2d 914, 918
( A l a .
2005) ( q u o t i n g Hannah v . G r e g g , B l a n d & B e r r y , I n c . , 840
So. 2d 839, 850 ( A l a .
2 0 0 2 ) ) .
L i k e w i s e ,
" ' t h i s C o u r t h a s h e l d
c o n s i s t e n t l y t h a t " t h e g r a n t o r d e n i a l o f l e a v e t o amend i s
a
19
1080269
m a t t e r t h a t i s w i t h i n t h e d i s c r e t i o n o f t h e t r i a l c o u r t and i s
s u b j e c t
t o
r e v e r s a l
on
a p p e a l
o n l y
f o r
an
a b u s e
o f
d i s c r e t i o n . " ' "
R e c t o r v. B e t t e r H o u s e s , I n c . , 820 So. 2d
75,
78
( A l a . 2001)
( q u o t i n g B o r o s v. B a x l e y , 621 So. 2d 240,
245
( A l a .
1 9 9 3 ) ) .
" T h i s C o u r t ' s r e v i e w o f a summary j u d g m e n t i s de
n o v o .
W i l l i a m s v. S t a t e Farm Mut.
A u t o .
I n s .
Co.,
8
8
6 So.
2d
72 , 74
( A l a . 2 0 0 3 ) .
We
a p p l y t h e same
s t a n d a r d
o f
r e v i e w
as
t h e
t r i a l
c o u r t
a p p l i e d .
S p e c i f i c a l l y ,
we must d e t e r m i n e w h e t h e r t h e movant
has made a p r i m a f a c i e s h o w i n g
t h a t no g e n u i n e
i s s u e
o f
m a t e r i a l
f a c t
e x i s t s
and
t h a t
t h e
movant
i s
e n t i t l e d
t o a j u d g m e n t
as
a m a t t e r
o f l a w .
R u l e
5 6 ( c ) ,
A l a . R. C i v . P.;
B l u e C r o s s & B l u e S h i e l d
o f
A l a b a m a v.
H o d u r s k i , 899
So.
2d
949,
952-53 ( A l a .
2 0 0 4 ) .
I n m a k i n g
s u c h
a
d e t e r m i n a t i o n , we
must
r e v i e w t h e e v i d e n c e i n t h e
l i g h t most f a v o r a b l e t o
t h e n o n m o v a n t .
W i l s o n v. Brown, 496 So. 2d 756,
758
( A l a .
1 9 8 6 ) .
Once t h e movant makes a p r i m a
f a c i e
s h o w i n g
t h a t t h e r e i s no g e n u i n e
i s s u e o f
m a t e r i a l
f a c t ,
t h e
b u r d e n
t h e n
s h i f t s
t o
t h e nonmovant
t o
p r o d u c e
' s u b s t a n t i a l
e v i d e n c e ' as t o t h e e x i s t e n c e
o f
a
g e n u i n e
i s s u e
o f
m a t e r i a l
f a c t .
B a s s
v.
S o u t h T r u s t Bank o f B a l d w i n C o u n t y ,
538
So.
2d
794,
797-98
( A l a . 1 9 8 9 ) ; A l a . Code 1975,
§ 1 2 - 2 1 - 1 2 . "
Dow
v. A l a b a m a
D e m o c r a t i c
P a r t y , 897
So.
2d
1035,
1038-39
( A l a .
2 0 0 4 ) .
D i s c u s s i o n
We
b e g i n
o u r
a n a l y s i s
by
r e v i e w i n g t h e
t r i a l
c o u r t ' s
r u l i n g s
e x c l u d i n g e v i d e n c e
p r o d u c e d
by
t h e
p l a i n t i f f s
i n
r e s p o n s e t o T e l e d y n e ' s and C i r r u s ' s summary-judgment m o t i o n s .
20
1080269
We
t h e n t u r n
t o t h e
t r i a l
c o u r t ' s
d e n i a l o f
t h e
p l a i n t i f f s '
m o t i o n
t o amend
t h e
c o m p l a i n t
t o
c o n f o r m
t o
t h e
e v i d e n c e .
F i n a l l y ,
we
r e v i e w
t h e summary j u d g m e n t i n f a v o r o f
T e l e d y n e
and
C i r r u s on
a l l t h e
p l a i n t i f f s '
c l a i m s .
A.
T o x i c o l o g y
R e p o r t
The
p l a i n t i f f s
a r g u e
t h a t
t h e
t r i a l
c o u r t
e r r e d
i n
h o l d i n g
t h a t
t h e
t o x i c o l o g y r e p o r t
i s i n a d m i s s i b l e
b e c a u s e ,
t h e y
s a y ,
t h e r e
i s
no
e v i d e n c e
i n d i c a t i n g
t h a t
t h e
b l o o d
s a m p l e s
upon
w h i c h
t h e
t o x i c o l o g y
r e p o r t
was
b a s e d
were
c o m p r o m i s e d .
The
o r d e r
o f
t h e
t r i a l
c o u r t
e x c l u d i n g
t h e
t o x i c o l o g y
r e p o r t
s t a t e s :
" [ T e l e d y n e
and
C i r r u s ] a r g u e
t h a t
p l a i n t i f f s
h a v e
f a i l e d
t o
e s t a b l i s h
t h e
r e q u i r e d
c h a i n
o f
c u s t o d y f o r S w a n s t r o m ' s b l o o d s a m p l e s w h i c h a r e
t h e
s u b j e c t
o f
t h e
r e p o r t .
P l a i n t i f f s
p o i n t
t o
t h e
p r o c e d u r e s
w h i c h
s h o u l d
be
f o l l o w e d
f o r
t h e
c o l l e c t i n g
and
h a n d l i n g
o f
s p e c i m e n s
a n a l y z e d
by
CAMI
[ t h e
C i v i l
A e r o s p a c e
M e d i c a l
I n s t i t u t e ] .
[
4
]
However, t h e r e
i s a
s i g n i f i c a n t
d e a r t h
o f
e v i d e n c e
t h a t
t h e p r o c e d u r e s w e r e , i n f a c t ,
f o l l o w e d .
T h i s
C o u r t c a n n o t assume t h a t t h e y w e r e .
T h i s
i s s u e
i s
q u i t e
s i m i l a r
t o
one
a d d r e s s e d
i n B i r g e
v.
S t a t e ,
973
So.
2d
1085
( A l a . C r i m . App.
2 0 0 7 ) .
T h e r e
t h e
C o u r t n o t e d
t h a t :
4 T h e C i v i l A e r o s p a c e M e d i c a l
I n s t i t u t e
i s l o c a t e d a t
t h e
FAA's M o n r o n e y A e r o n a u t i c a l C e n t e r i n O k l a h o m a C i t y , O k l a h o m a .
21
1080269
"'We
can
i n f e r f r o m t h e
r e c o r d
t h a t
a
c o u r i e r
t r a n s p o r t e d
t h e
s a m p l e s
We
w o u l d e x p e c t t h a t someone a t t h e
l a b o r a t o r y
r e c e i v e d
t h e
s a m p l e s
and
c a t a l o g u e d
them
i n t o a t r a c k i n g s y s t e m ; t h a t t h e p e r s o n
who
r e c e i v e d t h e s a m p l e s w o u l d h a v e p l a c e d them
i n
a
s e c u r e ,
t e m p e r a t u r e - c o n t r o l l e d
l o c a t i o n
u n t i l
t h e
a n a l y s t
o r
a n a l y s t s
r e t r i e v e d t h e s a m p l e s f o r t e s t i n g ; t h a t
t h e
a n a l y s t
o r
a n a l y s t s w o u l d h a v e
p i c k e d
up
t h e
s a m p l e s f r o m
t h e
s e c u r e
l o c a t i o n
and
w o u l d
h a v e
s a f e g u a r d e d
them
d u r i n g
t h e
t e s t i n g p r o c e s s t o e n s u r e t h a t t h e
s a m p l e s
were
n o t
c o n t a m i n a t e d
o r
t h a t
t h e
r e l i a b i l i t y
o f
t h e
t e s t
r e s u l t s was
n o t
o t h e r w i s e c o m p r o m i s e d .
However, a l l o f
t h e
f o r e g o i n g
a r e m a t t e r s
o f p u r e
s p e c u l a t i o n
b e c a u s e t h e
S t a t e
f a i l e d
t o e s t a b l i s h t h e
c h a i n o f c u s t o d y f o r t h e s a m p l e s a f t e r
Dr.
P l e s s ' s
a s s i s t a n t
p l a c e d
them
i n
t h e
r e f r i g e r a t o r . '
" P e r h a p s
t h e
p r o c e d u r e
o u t l i n e d
by
CAMI
was
f o l l o w e d
i n t h i s
c a s e , b u t b a s e d upon t h e
e v i d e n c e
o f
r e c o r d ,
t h i s
C o u r t c a n n o t assume
s o .
See
a l s o
G r e e n v. A l a b a m a Power Co.,
597
So.
2d
1325
( A l a .
1 992)
and
Ex
p a r t e
H o l t o n ,
590
So.
2d
918
( A l a .
1 9 9 1 ) .
" P l a i n t i f f s
a r g u e
t h a t
t h e
c h a i n
o f
c u s t o d y
i s s u e i s o v e r c o m e by
t h e
f a c t t h a t t h e
t e s t r e s u l t s
a r e
i n c l u d e d i n a p u b l i c r e c o r d and
t h u s
a d m i s s i b l e
p u r s u a n t t o R u l e 8 0 3 ( 8 ) ,
A l a . R.
E v i d .
U n d e r
[ R u l e ]
8 0 3 ( 8 ) ( c ) ,
p u b l i c d o c u m e n t s may
be
e x c l u d e d
i f
' t h e
s o u r c e s
o f
i n f o r m a t i o n
o r
o t h e r
c i r c u m s t a n c e s
i n d i c a t e
l a c k
o f
t r u s t w o r t h i n e s s . '
The
r e c o r d
i n
t h e
c a s e
i s d e v o i d
o f
e v i d e n c e
i n d i c a t i n g how
t h e
b l o o d
s a m p l e s
were
h a n d l e d ,
m a i n t a i n e d ,
t e s t e d ,
s a f e g u a r d e d
o r
how
much
t i m e
e l a p s e d
b e t w e e n
t h e
c o l l e c t i o n
o f
t h e
s a m p l e s and
t h e
FAA
l a b o r a t o r y ' s
a n a l y s i s
o f
them.
A b s e n t
t h i s
e v i d e n c e
o f
22
1080269
t r u s t w o r t h i n e s s ,
t h e
C o u r t
f i n d s
t h a t
t h e
FAA
t o x i c o l o g y r e p o r t i s i n a d m i s s i b l e . "
U n d e r
A l a b a m a
l a w ,
a
p a r t y
o f f e r i n g
l a b o r a t o r y
t e s t
r e s u l t s
i n t o e v i d e n c e
has t h e b u r d e n o f e s t a b l i s h i n g "a c h a i n
o f
c u s t o d y
w i t h o u t
b r e a k s
i n
o r d e r
t o
l a y
a
s u f f i c i e n t
p r e d i c a t e f o r a d m i s s i o n
o f [ t h e ] e v i d e n c e . "
Ex p a r t e
H o l t o n ,
590 So. 2d 918,
919
( A l a . 1991)
( c i t i n g Ex p a r t e W i l l i a m s ,
548
So.
2d 518,
520
( A l a . 1 9 8 9 ) ) .
To
g u i d e
t h e d e t e r m i n a t i o n
o f
w h e t h e r a p r o p e r
c h a i n o f c u s t o d y
as b e e n e s t a b l i s h e d , t h i s
C o u r t has
s e t o u t t h e
f o l l o w i n g
t e s t :
" [ T ] h e
r e c o r d
must
show
e a c h
l i n k
and
a l s o
t h e
f o l l o w i n g w i t h r e g a r d
t o e a c h
l i n k ' s p o s s e s s i o n
o f
t h e i t e m :
'(1)
[ t h e ] r e c e i p t o f t h e i t e m ; (2)
[ t h e ]
u l t i m a t e
d i s p o s i t i o n
o f
t h e
i t e m ,
i . e . ,
t r a n s f e r ,
d e s t r u c t i o n ,
o r
r e t e n t i o n ;
and
(3)
[ t h e ]
s a f e g u a r d i n g
and
h a n d l i n g
o f
t h e
i t e m
b e t w e e n
r e c e i p t
and
d i s p o s i t i o n . '
I m w i n k l e r e i d ,
The
I d e n t i f i c a t i o n
o f
O r i g i n a l ,
R e a l E v i d e n c e ,
61 M i l .
L. Rev.
145,
159
( 1 9 7 3 ) .
" I f
t h e
S t a t e ,
o r
any
o t h e r
p r o p o n e n t
o f
d e m o n s t r a t i v e
e v i d e n c e ,
f a i l s
t o i d e n t i f y a l i n k
o r
f a i l s
t o show f o r t h e
r e c o r d any
one
o f t h e
t h r e e
c r i t e r i a as t o e a c h
l i n k ,
t h e
r e s u l t i s a
' m i s s i n g '
l i n k ,
and
t h e i t e m i s i n a d m i s s i b l e . "
Ex p a r t e H o l t o n , 590
So.
2d a t 920;
see a l s o B i r g e v.
S t a t e ,
973
So. 2d 1085,
1093
( A l a . C r i m . App.
2007)
( n o t i n g t h a t t h e
C o u r t
o f C r i m i n a l A p p e a l s
and
t h i s
C o u r t h a v e
" c o n s i s t e n t l y
c i t e d and
r e l i e d on Ex p a r t e H o l t o n
f o r i t s s t a t e m e n t
o f
t h e
23
1080269
p r i n c i p l e s
e s t a b l i s h i n g t h e l e g a l r e q u i r e m e n t s f o r
p r o v i n g a
p r o p e r c h a i n o f c u s t o d y " ) .
The
p l a i n t i f f s
c o n t e n d
t h a t
t h e
c h a i n - o f - c u s t o d y
r e q u i r e m e n t s
i n a
c i v i l
a c t i o n
s h o u l d be
l e s s
t h a n t h e
r e q u i r e m e n t s i n a c r i m i n a l p r o c e e d i n g .
We
f i n d no m e r i t t o
t h e a r g u m e n t , and t h e p l a i n t i f f s h a v e n o t c i t e d a n y a u t h o r i t y
i n s u p p o r t o f t h e a r g u m e n t .
I n d e e d , R u l e 101, A l a . R. E v i d . ,
s t a t e s
t h a t
t h e A l a b a m a
R u l e s
o f E v i d e n c e
a p p l y t o
" a l l
p r o c e e d i n g s i n t h e c o u r t s o f t h e S t a t e o f A l a b a m a , " and t h i s
C o u r t h a s e q u a l l y
a p p l i e d
c h a i n - o f - c u s t o d y r e q u i r e m e n t s i n
c i v i l and c r i m i n a l c a s e s .
Compare G r e e n v . A l a b a m a Power Co.,
597 So. 2d 1325 ( A l a . 1 9 9 2 ) , w i t h Ex p a r t e H o l t o n , 590 So. 2d
a t 920.
I n G r e e n , a w r o n g f u l - d e a t h a c t i o n ,
t h i s C o u r t r e c o g n i z e d
t h a t c h a i n - o f - c u s t o d y r e q u i r e m e n t s a r e
p a r t i c u l a r l y a p p l i c a b l e
t o e v i d e n c e
i n v o l v i n g human s p e c i m e n s s u c h as b l o o d .
T h e r e ,
t h i s C o u r t
h e l d :
" I n c h a i n - o f - c u s t o d y c a s e s i n v o l v i n g
' s p e c i m e n s
t a k e n
f r o m t h e human b o d y , ' t h e p r o p o n e n t
o f t h e
e v i d e n c e must d e m o n s t r a t e
'"where and by whom t h e
s p e c i m e n
was
k e p t
and
t h r o u g h
whose
h a n d s i t
p a s s e d . " J . R i c h a r d s o n , Modern S c i e n t i f i c
E v i d e n c e ,
S e c t i o n 13.14a (2d e d . 1 9 7 4 ) . G o t h a r d v. S t a t e , 452
So. 2d 889, 890 ( A l a . C r . A p p . ) ,
c e r t .
s t r i c k e n , 450
So. 2d 479 ( A l a . 1 9 8 4 ) . '
S u t t l e v . S t a t e , 565 So. 2d
24
1080269
1197,
1199
( A l a .
C r i m .
App.
1990)
( r e v e r s i n g
v e h i c u l a r
h o m i c i d e
c o n v i c t i o n
f o r
f a i l u r e
o f
p r o s e c u t i o n
t o
a c c o u n t
f o r
b l o o d
s a m p l e
d u r i n g
f o u r - d a y
i n t e r v a l
b e t w e e n
d e l i v e r y
o f
u n s e a l e d
s a m p l e
t o
p o l i c e
o f f i c e r
and
r e c e p t i o n
a t
l a b o r a t o r y ) .
I f ' " t h e s u b s t a n c e a n a l y z e d
has
p a s s e d
t h r o u g h s e v e r a l h a n d s t h e e v i d e n c e must n o t l e a v e i t
t o
c o n j e c t u r e
as
t o
who
had
i t and
what was
done
w i t h
i t b e t w e e n
t h e
t a k i n g
and
t h e
a n a l y s i s . "
R o d g e r s v. Commonwealth, 197 Va.
527,
90 S.E.2d
257,
260
(1955) ( e m p h a s i s a d d e d ) . ' S u t t l e , 565
So.
2d
a t
119
9."
G r e e n , 597
So.
2d a t
1332.
I n t h e p r e s e n t
c a s e , we c o n c l u d e t h a t t h e
t r i a l c o u r t
d i d
n o t e x c e e d i t s d i s c r e t i o n i n e x c l u d i n g
t h e
t o x i c o l o g y
r e p o r t
b e c a u s e t h e
c h a i n
o f c u s t o d y o f t h e
t o x i c o l o g y k i t and
b l o o d
s a m p l e s
i n
t h a t
k i t
i s
r i d d l e d w i t h
m i s s i n g
l i n k s .
The
e v i d e n c e
p r e s e n t e d
by
t h e
p l a i n t i f f s
i n d i c a t e s
t h a t
b l o o d
s a m p l e s
t a k e n
f r o m
S w a n s t r o m ' s
b o d y
were
u n a c c o u n t e d
f o r
d u r i n g t h e e i g h t d a y s b e t w e e n t h e t i m e t h e y were c o l l e c t e d i n
New
M e x i c o and
t h e
t i m e t h e y a r r i v e d i n Oklahoma C i t y .
The
t o x i c o l o g y r e p o r t n o t e s o n l y t h e d a t e o f r e c e i p t o f t h e k i t i n
Oklahoma
C i t y and
t h e name o f
t h e
p e r s o n
who
a n a l y z e d
t h e
s a m p l e s .
Thus, t h e
t o x i c o l o g y r e p o r t
l a c k s
any
i n f o r m a t i o n
r e g a r d i n g
t h e
c o n d i t i o n
o f
t h e
b l o o d
s a m p l e s upon
r e c e i p t ,
w h e t h e r t h e
t o x i c o l o g y k i t and
t h e
s a m p l e s were s e a l e d when
t h e y were r e c e i v e d , who
r e c e i v e d t h e b l o o d s a m p l e s a t t h e
FAA,
25
1080269
how
t h e s a m p l e s were
s t o r e d
p r i o r
t o
t e s t i n g ,
t h e
d a t e
o f
t e s t i n g ,
o r t h e method o f
t e s t i n g .
A l t h o u g h t h e
p l a i n t i f f s
d i d
p r o d u c e
t h e FAA
g u i d e l i n e s
f o r h a n d l i n g b l o o d
s a m p l e s ,
t h e y
f a i l e d
t o
p r o d u c e
e v i d e n c e
i n d i c a t i n g
t h a t
t h e s e
g u i d e l i n e s were
f o l l o w e d .
5
N o t w i t h s t a n d i n g t h e m i s s i n g l i n k s i n t h e c h a i n o f c u s t o d y
o f t h e b l o o d s a m p l e s , t h e p l a i n t i f f s a r g u e t h a t t h e t o x i c o l o g y
r e p o r t
i s a d m i s s i b l e as a p u b l i c
r e c o r d u n d e r R u l e
8 0 3 ( 8 ) ,
A l a .
R.
E v i d .
R u l e
8 0 3 ( 8 )
p r o v i d e s
an
e x c e p t i o n
t o
t h e
g e n e r a l
h e a r s a y
r u l e
f o r c e r t a i n
p u b l i c
r e c o r d s ,
i n c l u d i n g
i n v e s t i g a t i v e
f i n d i n g s f r o m p u b l i c a g e n c i e s s u c h as t h e
FAA.
A
p u b l i c
r e c o r d , h o w e v e r ,
i s n o t
g u a r a n t e e d
a d m i s s i b i l i t y
u n d e r R u l e 8 0 3 ( 8 ) m e r e l y b e c a u s e i t i s a p u b l i c r e c o r d .
See
C h a r l e s Gamble, M c E l r o y ' s A l a b a m a E v i d e n c e
§ 2 6 6 . 0 1 ( 1 )
( 5 t h
e d .
1 9 9 6 ) .
F i r s t ,
t h e
r e c o r d must
f a l l
i n t o
one
o f
t h r e e
c a t e g o r i e s
s e t
o u t
i n R u l e
8 0 3 ( 8 ) - - a c t i v i t i e s
o f
a
p u b l i c
o f f i c e
o r a g e n c y , m a t t e r s
o b s e r v e d
by
p u b l i c
o f f i c i a l s ,
o r
f a c t u a l
f i n d i n g s
r e s u l t i n g
f r o m
an
i n v e s t i g a t i o n .
S e c o n d ,
R u l e 8 0 3 ( 8 ) g r a n t s
t r i a l
c o u r t s t h e d i s c r e t i o n t o e x c l u d e
an
5 O n l y
a f t e r
t h e
t r i a l
c o u r t
r u l e d
t o
e x c l u d e
t h e
t o x i c o l o g y r e p o r t d i d t h e p l a i n t i f f s
n o t i c e t h e d e p o s i t i o n o f
an FAA
o f f i c i a l .
26
1080269
o t h e r w i s e
q u a l i f i e d
p u b l i c
r e c o r d
f r o m
e v i d e n c e
i f
" t h e
s o u r c e s o f i n f o r m a t i o n
o r o t h e r c i r c u m s t a n c e s i n d i c a t e a l a c k
o f
t r u s t w o r t h i n e s s . "
H e r e , we c o n c l u d e t h a t t h e
t r i a l
c o u r t d i d n o t e x c e e d i t s
d i s c r e t i o n
i n
f i n d i n g
t h a t
t h e
t o x i c o l o g y
r e p o r t
l a c k e d
t r u s t w o r t h i n e s s .
The
l a c k
o f
i n f o r m a t i o n
a b o u t t h e
d a t e
on
w h i c h t h e FAA
t e s t e d S w a n s t r o m ' s b l o o d s a m p l e s c a u s e s c o n c e r n
b e c a u s e c a r b o n m o n o x i d e and
c y a n i d e a r e
n a t u r a l l y p r e s e n t
i n
p o s t m o r t e m
b l o o d
s a m p l e s ,
and
t h e
p l a i n t i f f s '
p r o f f e r e d
p a t h o l o g y
and
t o x i c o l o g y
e x p e r t s
b o t h
t e s t i f i e d
t h a t
t h e
l e v e l s
o f
c a r b o n
m o n o x i d e
and
c y a n i d e
i n
b l o o d
may
be
d i s t o r t e d
by
d e l a y e d
t e s t i n g and
i m p r o p e r
h a n d l i n g .
B a s e d
upon t h e e v i d e n c e p r e s e n t e d t o t h e
t r i a l
c o u r t , more t h a n
two
months may
have p a s s e d b e t w e e n t h e d a t e o f S w a n s t r o m ' s d e a t h
and
t h e d a t e on w h i c h t h e FAA
t e s t e d t h e b l o o d
s a m p l e s .
The
t o x i c o l o g y
r e p o r t
s t a t e s
t h a t
t h e
FAA
r e c e i v e d
S w a n s t r o m ' s
b l o o d
s a m p l e s
on
J u n e
7,
2002,
y e t
t h e
FAA
i s s u e d
t h e
t o x i c o l o g y r e p o r t on J u l y 30, 2 0 0 2 , w i t h no
i n d i c a t i o n o f
t h e
d a t e on w h i c h i t t e s t e d t h e b l o o d
s a m p l e s .
I n a d d i t i o n ,
t h e
p l a i n t i f f s
h a v e
n o t
p r o d u c e d
any
e v i d e n c e
i n d i c a t i n g
how
S w a n s t r o m ' s
b l o o d
s a m p l e s
were
t r a n s p o r t e d ,
s t o r e d ,
and
27
1080269
s a f e g u a r d e d .
B a s e d upon m i s s i n g
l i n k s i n
t h e c h a i n o f c u s t o d y
o f
t h e b l o o d
s a m p l e s ,
we
c o n c l u d e
t h a t
t h e
t r i a l
c o u r t
r e a s o n a b l y
f o u n d
t h a t
t h e
t o x i c o l o g y
r e p o r t
l a c k e d
t r u s t w o r t h i n e s s and c o r r e c t l y h e l d t h a t i s was i n a d m i s s i b l e .
B. T e s t i m o n y B a s e d upon t h e T o x i c o l o g y
R e p o r t
The p l a i n t i f f s
n e x t a r g u e t h a t , e v e n i f
we c o n c l u d e
t h a t
t h e
t r i a l c o u r t d i d
n o t e r r
i n d e t e r m i n i n g
t h a t t h e t o x i c o l o g y
r e p o r t i s i n a d m i s s i b l e , t h e t r i a l
c o u r t
e r r e d i n p r e c l u d i n g
t e s t i m o n y
b a s e d upon t h e t o x i c o l o g y
r e p o r t .
The
o r d e r
o f t h e
t r i a l
c o u r t
e x c l u d i n g
a l l t e s t i m o n y
p r o v i d i n g o p i n i o n s b a s e d on t h e t o x i c o l o g y r e p o r t
s t a t e s :
" [ T e l e d y n e and C i r r u s ] move t o e x c l u d e t h e o p i n i o n s
p r o f f e r e d b y
p l a i n t i f f s '
e x p e r t s
w h i c h a r e b a s e d
upon t h e s e now e x c l u d e d
t e s t r e s u l t s .
The m o t i o n i s
w e l l t a k e n .
C o u n s e l f o r
p l a i n t i f f s a r g u e s t h a t R u l e
703 o f t h e A l a b a m a R u l e s o f E v i d e n c e
s t i l l
p e r m i t s
an e x p e r t t o r e l y upon f a c t s o r d a t a n o t a d m i s s i b l e
i n t o
e v i d e n c e .
T h i s
c l e a r l y i s n o t t h e c a s e .
As
P r o f e s s o r Gamble
w r i t e s ,
"'An e x p e r t , f o r
e x a m p l e , may n o t b a s e h i s
o p i n i o n upon t h e s t a t e m e n t o f o t h e r s
u n l e s s
t h o s e
s t a t e m e n t s have b e e n
a d m i t t e d
i n t o
e v i d e n c e .
T h i s i s p a r t i c u l a r l y so when t h e
s t a t e m e n t s
r e l i e d upon a r e t h e m s e l v e s t h e
o p i n i o n s o f o t h e r s .
The a d o p t i o n
o f R u l e
703 i s a
r e j e c t i o n o f t h e f e d e r a l
r u l e
u n d e r w h i c h an e x p e r t may b a s e an
o p i n i o n
upon
e v i d e n c e
t h a t
[ i n ]
i t s e l f
i s
i n a d m i s s i b l e
so
l o n g
as
i t i s a
t y p e
28
1080269
r e a s o n a b l y
r e l i e d upon by
e x p e r t s
i n
t h e
f i e l d . '
"Gamble, A l a b a m a R u l e s o f E v i d e n c e
(2d e d . ) , p.
306.
See
a l s o F r a n k l i n v. E t h e r i d g e , 4 So.
3d 532
( A l a .
C i v .
App.
2 0 0 8 ) ;
G o l d e n v.
S t e i n ,
670
So.
2d
904 ,
907
( A l a . 1995)
( n o t i n g t h a t
an
e x p e r t ' s
o p i n i o n
c a n n o t
be b a s e d upon f a c t s n o t i n e v i d e n c e ) .
" F o r
t h e
f o r e g o i n g
r e a s o n s ,
p l a i n t i f f s
a r e
h e r e b y
p r e c l u d e d f r o m i n t r o d u c i n g i n t o e v i d e n c e
t h e
r e s u l t s
o f any
t e s t p e r f o r m e d
on
t h e b l o o d
s a m p l e s
t a k e n
f r o m
t h e
d e c e d e n t ,
m a k i n g
any
r e f e r e n c e ,
r e m a r k s
o r
a r g u m e n t
i n
t h e
p r e s e n c e
o f
t h e
j u r y
c o n c e r n i n g
t h i s e v i d e n c e .
A d d i t i o n a l l y ,
p l a i n t i f f s
may
n o t
e l i c i t
t e s t i m o n y
f r o m
any
e x p e r t
w i t n e s s ,
s p e c i f i c a l l y ,
b u t
n o t
l i m i t e d
t o ,
D r .
S o r r e l l
S c h w a r t z
[ 6 ]
and D r . D o n a l d Sommer r e g a r d i n g o p i n i o n s
b a s e d upon t h e s e
t e s t
r e s u l t s . "
The
p l a i n t i f f s
a r g u e
t h a t
t h e
t r i a l
c o u r t
e r r e d
i n
e x c l u d i n g t e s t i m o n y b a s e d upon t h e t o x i c o l o g y r e p o r t b e c a u s e ,
t h e y s a y , t h i s C o u r t has p r e v i o u s l y p e r m i t t e d e x p e r t
t e s t i m o n y
t h a t i s b a s e d upon i n a d m i s s i b l e e v i d e n c e .
I n s u p p o r t o f
t h i s
a r g u m e n t , t h e p l a i n t i f f s n o t e t h a t t h e
t r i a l c o u r t q u o t e d
f r o m
t h e s e c o n d
e d i t i o n o f M c E l r o y ' s A l a b a m a E v i d e n c e
and t h a t t h e
f i f t h
e d i t i o n o f t h a t t r e a t i s e r e c o g n i z e s t h a t
" A l a b a m a ' s
r u l e
p r e c l u d i n g e x p e r t
t e s t i m o n y
b a s e d
upon i n a d m i s s i b l e f a c t s
o r d a t a , h o w e v e r , has
b e e n
j u d i c i a l l y b r e a c h e d
on numerous o c c a s i o n s .
E x p e r t s
a r e
a l l o w e d ,
f o r e x a m p l e ,
t o
g i v e
o p i n i o n s
as
t o
v a l u e
b a s e d
i n
p a r t
on
h e a r s a y
e v i d e n c e .
6 D r .
S c h w a r t z
was
a t h i r d e x p e r t w i t n e s s r e t a i n e d by
t h e
p l a i n t i f f s .
29
1080269
A d d i t i o n a l l y , t h e j u d i c i a r y has a p p r o v e d t h e u s e
o f
a
t o x i c o l o g i s t ' s
a u t o p s y
r e p o r t as
a b a s i s
f o r a
d e p u t y c o r o n e r ' s e x p e r t t e s t i m o n y . "
Gamble, M c E l r o y ' s A l a b a m a E v i d e n c e § 1 2 7 . 0 2 ( 5 )
( 5 t h e d .
1996)
( c i t i n g Owens v. Rado, 659 So. 2d 87
( A l a . 1 9 9 5 ) ;
V o l k s w a g e n
o f A m e r i c a , I n c . v. M a r i n e l l i ,
628 So. 2d 378
( A l a . 1 9 9 3 ) ;
Ex
p a r t e W e s l e y , 575 So. 2d 127,
129
( A l a . 1 9 9 0 ) ; and J a c k s o n v.
S t a t e , 412
So. 2d 302
( A l a . C r i m . App.
1 9 8 2 ) ) .
A l a b a m a
l a w
i s
c l e a r
t h a t
i n f o r m a t i o n upon
w h i c h
an
e x p e r t
r e l i e s
must
g e n e r a l l y
be
i n t r o d u c e d i n t o
e v i d e n c e .
" R u l e
703,
A l a . R.
E v i d . ,
r e q u i r e s
t h a t
t h e
f a c t s
o r
d a t a
r e l i e d upon by t h e e x p e r t i n t e s t i f y i n g
and p r o c u r e d by
t h e
e x p e r t
o t h e r t h a n by
f i r s t h a n d
k n o w l e d g e
g e n e r a l l y must
be
a d m i t t e d
i n t o e v i d e n c e . "
Ex p a r t e D e a r d o r f f , 6 So. 3d
1235,
1242
( A l a .
2008)
( c i t i n g
M c E l r o y ' s
A l a b a m a
E v i d e n c e
§
1 2 7 . 0 2 ( 5 ) ) .
T h i s C o u r t has
f o u n d e x c e p t i o n t o t h i s
g e n e r a l
r u l e i n h o l d i n g t h a t h e a r s a y t h a t i s " ' c u s t o m a r i l y r e l i e d
on
by e x p e r t s and
l i k e l y t o be t r u s t w o r t h y i s a p r o p e r b a s i s f o r
an e x p e r t o p i n i o n . ' "
7
V o l k s w a g e n o f A m e r i c a ,
628
So.
2d
a t
7 N o t a b l y , " R u l e 703 i s t a k e n v e r b a t i m f r o m F e d . R.
E v i d .
703, b u t i t o m i t s t h a t p o r t i o n o f t h e f e d e r a l
r u l e
p r o v i d i n g
t h a t an e x p e r t may b a s e an o p i n i o n upon i n a d m i s s i b l e
e v i d e n c e
i f
i t i s o f a t y p e r e a s o n a b l y r e l i e d upon by e x p e r t s i n t h e
p a r t i c u l a r
f i e l d
i n f o r m i n g
o p i n i o n s . "
R u l e
703,
A l a .
R.
E v i d . , A d v i s o r y C o m m i t t e e ' s
N o t e s .
30
1080269
387
( q u o t i n g Brown Mech. C o n t r a c t o r s , I n c .
v. C e n t e n n i a l I n s .
Co., 431 So. 2d 932, 944 n.6 ( A l a .
1983) ( e m p h a s i s
a d d e d ) ) .
I n N a s h v . C o s b y , 574 So. 2d 700 ( A l a .
1 9 9 0 ) , t h i s C o u r t
a l s o
m o d i f i e d t h e g e n e r a l
r u l e b y a l l o w i n g a m e d i c a l
e x p e r t t o g i v e
o p i n i o n t e s t i m o n y b a s e d i n p a r t on t h e o p i n i o n s o f o t h e r s when
t h o s e o p i n i o n s a r e f o u n d i n t h e m e d i c a l
r e c o r d s
a d m i t t e d
i n t o
e v i d e n c e .
I n Ex p a r t e W e s l e y , t h i s C o u r t n o t e d t h a t N a s h d i d
n o t c h a n g e " t h e t r a d i t i o n a l r u l e f o l l o w e d i n
A l a b a m a t h a t t h e
i n f o r m a t i o n upon w h i c h t h e e x p e r t
r e l i e d must be i n e v i d e n c e . "
575 So. 2d a t 129 ( f o o t n o t e
o m i t t e d ) .
As we h a v e
a l r e a d y
d i s c u s s e d ,
t h e t r i a l
c o u r t d i d
n o t
e x c e e d i t s d i s c r e t i o n i n f i n d i n g
t h a t t h e t o x i c o l o g y
r e p o r t
was u n t r u s t w o r t h y a n d , t h e r e f o r e , i n a d m i s s i b l e .
C o n s e q u e n t l y ,
i t
f o l l o w s t h a t t h e t r i a l
c o u r t d i d
n o t e x c e e d i t s d i s c r e t i o n
i n
p r e c l u d i n g t h e p l a i n t i f f s
f r o m
i n t r o d u c i n g any
t e s t i m o n y
b a s e d
upon
i n a d m i s s i b l e
e v i d e n c e
s u c h
as t h e
t o x i c o l o g y
r e p o r t .
C. P u r p o r t e d l y
E x p e r t
O p i n i o n s o f Sommer
The p l a i n t i f f s
n e x t a r g u e t h a t t h e t r i a l
c o u r t
e r r e d i n
e x c l u d i n g
t h e p u r p o r t e d l y
e x p e r t
o p i n i o n s
o f Sommer.
The
t r i a l
c o u r t ' s o r d e r e x c l u d i n g Sommer's o p i n i o n s
r e g a r d i n g t h e
31
1080269
e x i s t e n c e o f an i n - f l i g h t
f u e l
f i r e a n d t h e e f f e c t s o f an i n -
f l i g h t
f u e l
f i r e on S w a n s t r o m s t a t e s :
" A f t e r
c o n s i d e r i n g t h e e v i d e n c e o f r e c o r d a n d
t h e
l e n g t h y
a r g u m e n t s
o f c o u n s e l ,
t h e C o u r t
f i n d s
t h a t t h e p l a i n t i f f h a s f a i l e d t o d e m o n s t r a t e
t h a t
Sommer i s q u a l i f i e d t o o f f e r an o p i n i o n as t o t h e
e x i s t e n c e o f an i n - f l i g h t
f i r e .
W h i l e Sommer h a s
e x p e r i e n c e as an a c c i d e n t
i n v e s t i g a t o r , he h a s no
b a c k g r o u n d i n f i r e s a f e t y , f i r e i n v e s t i g a t i o n a n d he
a d m i t s o f no f a m i l i a r i t y w i t h t h e s t a n d a r d s as t h e y
r e l a t e
t o
a n a l y s i s
o f
f i r e
p a t t e r n s .
F u r t h e r ,
p l a i n t i f f s
o f f e r
n o t h i n g
t o s u g g e s t
t h a t
he h a s
a c h i e v e d a
l e v e l o f e x p e r t i s e t o d i s t i n g u i s h t h e
s i g n a t u r e o f a p r e - i m p a c t
f i r e
f r o m t h e a s h e s o f a
p o s t - i m p a c t
c o n f l a g r a t i o n .
B e y o n d
'even an
i d i o t
knows
an
e x h a u s t
s y s t e m
w i l l
i g n i t e
g a s o l i n e , '
Sommer a r t i c u l a t e s few e v i d e n t i a r y u n d e r p i n n i n g s f o r
h i s
c o n c l u s i o n
a b o u t
an
i n - f l i g h t
f i r e .
He
e x p r e s s e s no o p i n i o n as t o how much g a s o l i n e was
l e a k i n g f r o m t h e f u e l pump, a t what t e m p e r a t u r e t h e
f u e l
w o u l d
i g n i t e ,
what
t e m p e r a t u r e
t h e e x h a u s t
s y s t e m r e a c h e d u n d e r t h e s u b j e c t
f l i g h t
c o n d i t i o n s
a n d / o r what o t h e r c o m p o n e n t s o f t h e e n g i n e were ' h o t
e n o u g h ' t o i g n i t e t h e u n d e t e r m i n e d
amount o f
f u e l
w h i c h was a l l e g e d l y l e a k i n g f r o m t h e e n g i n e
d r i v e n
f u e l pump.
"The
f a c t
t h a t an e x h a u s t
s y s t e m may
i g n i t e
l e a k i n g f u e l does n o t w a r r a n t t h e c o n c l u s i o n t h a t
i t
d i d so on t h i s
o c c a s i o n .
Sommer's c o n c l u s i o n
t h a t
'even
an
i d i o t
knows'
a n d
p l a i n t i f f s '
c o u n s e l s '
a r g u m e n t t h a t
t h e r e were
' p l e n t y o f t h i n g s ' i n
t h e
e n g i n e
c o m p a r t m e n t
t o
i g n i t e
t h e
f u e l ,
do n o t
p r o v i d e
a
s u f f i c i e n t
e v i d e n t i a r y
p r e d i c a t e f o r
Sommer's o p i n i o n
r e g a r d i n g an i n - f l i g h t
f i r e .
2
"
2The C o u r t a c k n o w l e d g e s
t h a t i t s c o n c l u s i o n i n
t h i s
r e g a r d
s u b j e c t s
i t t o t h e o b v i o u s
c r i t i c i s m
32
1080269
t h a t
i t s r e a s o n i n g
a b i l i t i e s
f a l l
s h o r t
o f o u r
h y p o t h e t i c a l
i d i o t . "
The a d m i s s i b i l i t y o f e x p e r t t e s t i m o n y i s g o v e r n e d b y R u l e
702, A l a .
R. E v i d . , w h i c h p r o v i d e s :
" I f
s c i e n t i f i c ,
t e c h n i c a l , o r o t h e r
s p e c i a l i z e d
k n o w l e d g e
w i l l
a s s i s t
t h e
t r i e r
o f
f a c t
t o
u n d e r s t a n d
t h e e v i d e n c e
o r t o d e t e r m i n e
a f a c t i n
i s s u e ,
a
w i t n e s s
q u a l i f i e d
as
an
e x p e r t
by
k n o w l e d g e ,
s k i l l ,
e x p e r i e n c e ,
t r a i n i n g ,
o r
e d u c a t i o n ,
may
t e s t i f y
t h e r e t o i n t h e f o r m o f an
o p i n i o n o r o t h e r w i s e . "
A d e t e r m i n a t i o n o f w h e t h e r a w i t n e s s i s q u a l i f i e d t o g i v e an
e x p e r t o p i n i o n f a l l s w i t h i n t h e b r o a d
d i s c r e t i o n o f t h e
t r i a l
c o u r t . See Townsend v . G e n e r a l M o t o r s C o r p . , 642 So. 2d 4 1 1 ,
423 ( A l a . 1994) ("whether a p a r t i c u l a r w i t n e s s w i l l be a l l o w e d
t o
t e s t i f y as an e x p e r t i s l e f t t o t h e s o u n d d i s c r e t i o n o f t h e
t r i a l
c o u r t " ) ; B u r r o u g h s C o r p . v. H a l l
A f f i l i a t e s ,
I n c . , 423
So. 2d 1348, 1353 ( A l a .
1982) ("Whether o r n o t a
p a r t i c u l a r
w i t n e s s
w i l l be a l l o w e d t o
t e s t i f y
as an e x p e r t
i s i n t h e
s o u n d d i s c r e t i o n o f t h e t r i a l
c o u r t , whose d e c i s i o n w i l l n o t
be d i s t u r b e d on a p p e a l
e x c e p t f o r p a l p a b l e
a b u s e . " ) .
E v e n i f a w i t n e s s i s q u a l i f i e d t o g i v e e x p e r t
t e s t i m o n y
on
a p a r t i c u l a r
s u b j e c t , t h e t e s t i m o n y
c a n n o t be b a s e d on
"mere s p e c u l a t i o n and c o n j e c t u r e . "
Townsend, 642 So. 2d a t
422.
To d a t e
t h i s C o u r t has a p p l i e d t h e " g e n e r a l
a c c e p t a n c e
33
1080269
t e s t "
s e t o u t i n F r y e v . U n i t e d
S t a t e s , 293 F. 1 0 1 3 , 1014
(D.C.
C i r . 1 9 2 3 ) ,
as t h e s t a n d a r d
f o r a d m i t t i n g
e x p e r t
t e s t i m o n y .
U n d e r t h i s
t e s t , "a p e r s o n who o f f e r s an o p i n i o n
as a s c i e n t i f i c e x p e r t must p r o v e t h a t he r e l i e d on s c i e n t i f i c
p r i n c i p l e s ,
m e t h o d s , o r p r o c e d u r e s
t h a t h a v e g a i n e d
g e n e r a l
a c c e p t a n c e
i n t h e f i e l d i n w h i c h t h e e x p e r t i s t e s t i f y i n g . "
S l a y v. K e l l e r
I n d u s . ,
I n c . , 823 So. 2d 623, 626 ( A l a . 2001)
( c i t i n g
F r y e , 293 F. a t 1 0 1 4 ) .
"Mere a s s e r t i o n s o f b e l i e f ,
w i t h o u t
any s u p p o r t i n g
r e s e a r c h ,
t e s t i n g ,
o r
e x p e r i m e n t s ,
c a n n o t
q u a l i f y
as p r o p e r
e x p e r t
s c i e n t i f i c t e s t i m o n y
u n d e r
e i t h e r t h e ' g e n e r a l - a c c e p t a n c e ' s t a n d a r d e n u n c i a t e d i n
F r y e o r
t h e
' s c i e n t i f i c a l l y r e l i a b l e ' s t a n d a r d o f D a u b e r t [ v . M e r r e l l
Dow P h a r m a c e u t i c a l s ,
I n c . ] , 509 U.S. 579 ( 1 9 9 3 ) . "
S l a y , 82
3
So. 2d a t 626.
Our
r e v i e w
o f t h e r e c o r d i n t h i s
c a s e
s u p p o r t s t h e
c o n c l u s i o n t h a t t h e t r i a l c o u r t d i d
n o t e x c e e d i t s d i s c r e t i o n
i n
f i n d i n g
t h a t Sommer was n o t p r o p e r l y q u a l i f i e d t o g i v e an
e x p e r t o p i n i o n t h a t a l e a k y f u e l pump c a u s e d an i n - f l i g h t
f i r e
t h a t
r e s u l t e d
i n t h e c r a s h a n d i n f i n d i n g
t h a t Sommer
f a i l e d
t o
e s t a b l i s h "a s u f f i c i e n t e v i d e n t i a r y p r e d i c a t e " f o r
s u c h an
o p i n i o n .
The p l a i n t i f f s have n o t p r o d u c e d e v i d e n c e
i n d i c a t i n g
34
1080269
t h a t Sommer h a d any e d u c a t i o n a n d t r a i n i n g i n
t h e a r e a o f f i r e
c a u s a t i o n
o r
f i r e - o r i g i n
a n a l y s i s
o t h e r
t h a n h i s g e n e r a l
e x p e r i e n c e
i n v e s t i g a t i n g a v i a t i o n
a c c i d e n t s
t h a t
i n v o l v e d
f i r e s .
T h i s
l a c k o f e d u c a t i o n a n d t r a i n i n g i n t h e f i e l d o f
f i r e c a u s a t i o n a n d o r i g i n i s p a r t i c u l a r l y p r o b l e m a t i c i n t h i s
c a s e b e c a u s e Sommer was c h a r g e d w i t h t h e t a s k o f e x a m i n i n g t h e
c h a r r e d w r e c k a g e o f t h e a i r c r a f t a n d d e t e r m i n i n g
w h e t h e r any
d e f e c t o r damage was c a u s e d b y a p r e - c r a s h
f i r e o r t h e p o s t -
c r a s h
f i r e .
8
I n d e e d , i n a d e p o s i t i o n , Sommer t e s t i f i e d
t h a t
t h e p o s t - c r a s h
f i r e was "a f a i r l y
s e v e r e
f i r e "
t h a t made
i t
d i f f i c u l t t o d i s t i n g u i s h
p r e - c r a s h f r o m p o s t - c r a s h b u r n damage
8 D u r i n g a d e p o s i t i o n , Sommer c o u l d n o t r e c a l l t h e b a s i c
t e n e t s
o f f i r e - c a u s e a n d
f i r e - o r i g i n
i n v e s t i g a t i o n i n an
a v i a t i o n a c c i d e n t , as n o t e d b y t h e f o l l o w i n g e x c h a n g e :
"Q:
W i l l
you d e s c r i b e
f o r me t h e s t a n d a r d s
t h a t
r e l a t e t o t h e a n a l y s i s o f f i r e
p a t t e r n s ?
"A:
No.
"Q: Can you
d e s c r i b e
f o r me
t h e t y p e
o f
f i r e
p a t t e r n s , t h e common t y p e s o f f i r e
p a t t e r n s ?
"A:
N o t w i t h o u t
r e v i e w i n g t h e m a t e r i a l s .
"Q:
Okay.
W e l l ,
j u s t
g i v e
me
t h e b a s i c
f i r e
p a t t e r n s
t h a t e x i s t f r o m
f i r e s .
"A:
N o t w i t h o u t
r e v i e w i n g t h e m a t e r i a l s . "
35
1080269
and
t h a t i t was " p o s s i b l e " t h a t t h e s o o t p a t t e r n s on t h e f u e l
pump c o u l d have r e s u l t e d f r o m t h e p o s t - c r a s h
f i r e .
M o r e o v e r ,
Sommer
d o e s
n o t
p r o v i d e
a n y
s c i e n t i f i c
m e t h o d o l o g y f o r
d e t e r m i n i n g
w h e t h e r
l e a k i n g
f u e l
c o u l d
have
i g n i t e d
d u r i n g
S w a n s t r o m ' s f o u r - o r f i v e - m i n u t e
f l i g h t .
I n Sommer's w o r d s ,
i f
" e v e n an
i d i o t
knows how an e x h a u s t
s y s t e m
w i l l
i g n i t e
g a s o l i n e , " h i s e x p e r t
t e s t i m o n y
w i l l n o t a s s i s t a j u r y i n
u n d e r s t a n d i n g w h e t h e r a f u e l
l e a k
c a u s e d an i n - f l i g h t
f u e l
f i r e a b o a r d t h e a i r c r a f t .
We f u r t h e r c o n c l u d e t h a t t h e t r i a l
c o u r t d i d
n o t e x c e e d
i t s
d i s c r e t i o n i n f i n d i n g t h a t Sommer was n o t q u a l i f i e d t o
g i v e an e x p e r t
o p i n i o n t h a t t o x i c g a s e s f r o m an i n - f l i g h t
f i r e
e n t e r e d
t h e c o c k p i t o f t h e a i r c r a f t a n d c a u s e d S w a n s t r o m t o
become c o n f u s e d .
The o r d e r o f t h e t r i a l
c o u r t
s t a t e s :
" P l a i n t i f f s
f u r t h e r
p r o f f e r
t h e
o p i n i o n
o f
D o n a l d Sommer t h a t ' p r o d u c t s o f c o m b u s t i o n ' f r o m t h e
e n g i n e
f i r e
e n t e r e d
t h e c o c k p i t .
H i s o p i n i o n s i n
t h i s
r e g a r d
a p p e a r t o be b a s e d upon t h e r e s u l t s o f
t h e
t o x i c o l o g y
r e p o r t [ , ]
w h i c h h a s b e e n
e x c l u d e d ,
and
t h e o p i n i o n s
o f D r . S o r r e l l
S c h w a r t z .
To t h e
e x t e n t
t h a t
t h i s
p r o f e s s e d
o p i n i o n
i s b a s e d
upon
i n a d m i s s i b l e
e v i d e n c e a n d t h e o p i n i o n
o f
o t h e r s ,
i . e . ,
D r . S c h w a r t z , i t
i s i n a d m i s s i b l e .
K i m b e r l y
C l a r k
C o r p . v . S a w y e r , 901 So. 2d 738
( A l a . C i v .
App.
2
0
0 4 ) . ...
36
1080269
" I n an a p p a r e n t
e f f o r t t o e x p l a i n some o f t h e
p i l o t ' s
a c t i o n s a f t e r t a k e o f f , Sommer e x p r e s s e d t h e
o p i n i o n
t h a t
[Swanstrom] was
' w e l l
u n d e r way o f
b e i n g
e s s e n t i a l l y
p o i s o n e d
by
t h e p r o d u c t s
o f
c o m b u s t i o n . '
P l a i n t i f f s
p r o f f e r e d
no
r e l e v a n t
e d u c a t i o n a l
t r a i n i n g o r e x p e r i e n c e t o q u a l i f y Sommer
t o
e x p r e s s
t h i s
o p i n i o n .
F u r t h e r ,
t o t h e
e x t e n t
t h a t
i t i s b a s e d
on t h e i n a d m i s s i b l e
t o x i c o l o g y
r e p o r t o r t h e o p i n i o n o f D r . S c h w a r t z i t i s a l s o
i n a d m i s s i b l e .
A c c o r d i n g l y ,
d e f e n d a n t s '
M o t i o n i n
L i m i n e i s g r a n t e d ,
a n d Sommer i s h e r e b y
p r e c l u d e d
f r o m e x p r e s s i n g
t h i s
o p i n i o n t o t h e j u r y . "
The
t r i a l
c o u r t c o r r e c t l y f o u n d t h a t t h e p l a i n t i f f s
h a v e
n o t
p r o d u c e d any e v i d e n c e
i n d i c a t i n g t h a t
Sommer h a s a n y
e d u c a t i o n ,
t r a i n i n g , o r e x p e r i e n c e
r e l a t e d t o t h e e m i s s i o n o f
t o x i c g a s e s f r o m f i r e s c a u s e d b y a v i a t i o n f u e l o r t h e e f f e c t s
o f s u c h g a s e s on i n d i v i d u a l s .
Sommer
f a i l e d t o q u a l i f y
h i s
o p i n i o n
t h a t S w a n s t r o m was i n c a p a c i t a t e d b y t h e t o x i c g a s e s
w i t h
any
s c i e n t i f i c
m e t h o d o l o g y
t h a t
c o r r e l a t e s
l e v e l s o f
c a r b o n
m o n o x i d e
a n d / o r
c y a n i d e
w i t h
a
s t a t e
o f
m e n t a l
i n c a p a c i t a t i o n .
A c c o r d i n g l y , we c o n c l u d e t h a t t h e t r i a l
c o u r t
d i d n o t e x c e e d i t s d i s c r e t i o n i n e x c l u d i n g Sommer's
t e s t i m o n y
r e g a r d i n g
t h e e m i s s i o n
o f t o x i c g a s e s f r o m t h e a l l e g e d
i n ¬
f l i g h t
f u e l
f i r e .
D. Amendment o f t h e C o m p l a i n t
The
p l a i n t i f f s
f u r t h e r a r g u e t h a t t h e t r i a l
c o u r t
e r r e d
i n d e n y i n g t h e i r m o t i o n e n t i t l e d
" P l a i n t i f f s ' M o t i o n t o Amend
37
1080269
t o
C o n f o r m
w i t h
t h e E v i d e n c e , " w h i c h
s o u g h t
t o amend t h e
c o m p l a i n t t o add new c l a i m s a g a i n s t T e l e d y n e and C i r r u s .
I n
t h e
m o t i o n , t h e p l a i n t i f f s
a s s e r t e d t h a t t h e y s o u g h t t o amend
t h e
c o m p l a i n t p u r s u a n t t o R u l e 1 5 ( b ) , A l a . R. C i v .
P., b e c a u s e
" [ d ] u r i n g t h e l a s t
s e v e r a l y e a r s ... new e v i d e n c e h a s come t o
l i g h t . "
The t r i a l
c o u r t d e n i e d t h e m o t i o n w i t h o u t a w r i t t e n
o r d e r .
The p l a i n t i f f s now a r g u e t h a t t h e t r i a l c o u r t e r r e d i n
d e n y i n g t h e m o t i o n b e c a u s e ,
t h e y s a y , n e i t h e r
T e l e d y n e n o r
C i r r u s w o u l d be p r e j u d i c e d by t h e p r o p o s e d amendment.
R e g a r d l e s s
o f
w h e t h e r
T e l e d y n e
and
C i r r u s
w o u l d
be
p r e j u d i c e d by t h e p r o p o s e d amendment, t h e p l a i n t i f f s '
m o t i o n
i s
i l l - f o u n d e d b e c a u s e R u l e 1 5 ( b ) p r o v i d e s f o r amendments t o
t h e
c o m p l a i n t i n o r d e r t o c o n f o r m t o e v i d e n c e p r e s e n t e d d u r i n g
a t r i a l , and t h e r e h a s b e e n no t r i a l i n t h i s c a s e .
R u l e 1 5 ( b )
s t a t e s , i n p e r t i n e n t
p a r t :
"When i s s u e s n o t r a i s e d by t h e
p l e a d i n g s
a r e t r i e d
by e x p r e s s o r i m p l i e d
c o n s e n t o f t h e
p a r t i e s , t h e y s h a l l be t r e a t e d i n a l l
r e s p e c t s as i f
t h e y h a d
b e e n r a i s e d i n t h e p l e a d i n g s . "
( E m p h a s i s added.)
I n s h o r t ,
b e c a u s e
R u l e 1 5 ( b ) i s i n a p p l i c a b l e ,
we
c a n n o t
r e v e r s e t h e
t r i a l
c o u r t ' s o r d e r d e n y i n g t h e p l a i n t i f f s '
m o t i o n .
M o r e o v e r , e v e n i f
t h e p l a i n t i f f s ' m o t i o n i s t r e a t e d as a
38
1080269
m o t i o n t o amend t h e c o m p l a i n t p u r s u a n t t o R u l e 1 5 ( a ) , A l a . R.
C i v .
P. (an a r g u m e n t t h e p l a i n t i f f s do n o t m a k e ) , we c o n c l u d e
t h a t t h e t r i a l c o u r t d i d
n o t e x c e e d i t s d i s c r e t i o n i n d e n y i n g
t h e
m o t i o n .
The l i b e r a l
p o l i c y o f a l l o w i n g amendments u n d e r
R u l e 15 " ' i s
n o t c a r t e b l a n c h e a u t h o r i t y t o amend ... a t any
t i m e . ' "
B u r k e t t v. A m e r i c a n Gen. F i n . , I n c . ,
607 So. 2d 138,
141
( A l a . 1992) ( q u o t i n g S t a l l i n g s v . A n g e l i c a U n i f o r m Co.,
388 So. 2d 942, 947 ( A l a . 1 9 8 0 ) ) .
A t r i a l
c o u r t i s a f f o r d e d
d i s c r e t i o n t o d e n y an amendment f o r
g o o d c a u s e , and t h i s C o u r t
has r e c o g n i z e d undue d e l a y i n i t s p r o c e e d i n g s as good
c a u s e .
See Ex p a r t e GRE I n s .
G r o u p , 822 So. 2d 388, 390 ( A l a . 2 0 0 1 ) ;
H o r t o n v. S h e l b y Med. C t r . , 562 So. 2d 127, 130 ( A l a . 1 9 8 9 ) .
When t h e p l a i n t i f f s
f i l e d t h e m o t i o n t o amend t h e i r c o m p l a i n t ,
t h e
d i s c o v e r y p e r i o d h a d e n d e d and a l l o w i n g f u r t h e r amendment
t o t h e c o m p l a i n t w o u l d have r e q u i r e d a d d i t i o n a l d i s c o v e r y and
w o u l d have
f u r t h e r d e l a y e d t h e t r i a l
s e t t i n g .
S i m p l y , " t h e
t r i a l
c o u r t h a s d i s c r e t i o n , i n t h e i n t e r e s t s o f j u s t i c e , t o
d e n y an amendment f o r r e a s o n s o f p r e j u d i c e o r undue d e l a y . "
B l a c k m o n v . N e x i t y F i n . C o r p . ,
953 So. 2d 1
18
0
, 11
90
( A l a .
2 0 0 6 ) .
9
9We
p r e t e r m i t c o n s i d e r a t i o n o f t h e p l a i n t i f f s '
a r g u m e n t s
t h a t t h e t r i a l c o u r t e r r e d i n d e n y i n g t h e i r m o t i o n s t o c o m p e l
39
1080269
The
p l a i n t i f f s
f i l e d
t h e
m o t i o n
on A u g u s t
29,
2008,
2
weeks a f t e r
t h e
t r i a l
c o u r t ' s
l a s t amended s c h e d u l i n g
o r d e r
s t a t e d t h a t a l l d i s c o v e r y s h o u l d be c o m p l e t e d and l e s s t h a n
60
d a y s b e f o r e
t h e d a t e s e t
f o r
t r i a l .
The
t r i a l
c o u r t
d e n i e d
t h e m o t i o n t o amend w i t h o u t
p r o v i d i n g any
r e a s o n i n g ;
i t d i d
n o t
e r r i n d o i n g
s o .
E. Summary Judgment
R e g a r d l e s s
o f
w h e t h e r
t h e
t r i a l
c o u r t
e x c e e d e d
i t s
d i s c r e t i o n
i n
e x c l u d i n g
t h e
t o x i c o l o g y
r e p o r t
and
t h e
t e s t i m o n y
r e l a t e d t o
t h e
t o x i c o l o g y
r e p o r t
and
t h e
e x p e r t
o p i n i o n s o f Sommer, t h e p l a i n t i f f s a r g u e t h a t t h e
t r i a l
c o u r t
e r r e d i n e n t e r i n g a summary j u d g m e n t i n f a v o r o f T e l e d y n e
and
C i r r u s on a l l o f
t h e i r c l a i m s .
S p e c i f i c a l l y ,
t h e
p l a i n t i f f s
a r g u e
t h a t
t h e
t r i a l
c o u r t
f a i l e d
t o v i e w
t h e
e v i d e n c e
i n
t h e i r
f a v o r
as
t h e n o n m o v i n g p a r t y ,
p r e m a t u r e l y
s h i f t e d
t h e
b u r d e n o f p r o o f
t o them, and
o v e r l o o k e d
s u b s t a n t i a l e v i d e n c e
p r o d u c t i o n
o f c e r t a i n d e p o s i t i o n r e s p o n s e s and d o c u m e n t s f r o m
T e l e d y n e e m p l o y e e Howard Thompson
and
C i r r u s e m p l o y e e
B i l l
K i n g b e c a u s e
t h e
p l a i n t i f f s
d i d n o t
s u b m i t
any
R u l e
5 6 ( f ) ,
A l a .
R.
C i v . P.,
a f f i d a v i t s i n t h e
t r i a l
c o u r t t o a s s e r t
t h a t
t h e
r e q u e s t e d
d i s c o v e r y
was
e s s e n t i a l t o
t h e i r
c a s e .
The
p l a i n t i f f s , i n t h e i r r e p l y b r i e f , a c k n o w l e d g e t h a t " R u l e
5 6 ( f )
i s i n a p p l i c a b l e t o
[ t h e i r ] a p p e a l , " and " [ t h e y ] do n o t
c o n t e n d
t h a t
t h e
t r i a l
c o u r t ' s summary j u d g m e n t d e c i s i o n w o u l d h a v e
d i f f e r e d
i f
t h e
c o u r t
had
c o m p e l l e d
d i s c o v e r y
f r o m
Mr.
Thompson and
Mr.
K i n g . "
P l a i n t i f f s '
r e p l y b r i e f ,
p.
35
n.7.
40
1080269
i n d i c a t i n g
t h a t a l e a k y
f u e l pump h a d c a u s e d t h e c r a s h i n
w h i c h S w a n s t r o m was
k i l l e d .
1. N e g l i g e n c e
a n d S t r i c t - L i a b i l i t y
C l a i m s
As
n o t e d
a b o v e , t h e
t r i a l
c o u r t
e n t e r e d
a
summary
j u d g m e n t i n f a v o r o f T e l e d y n e a n d C i r r u s w i t h o u t
r u l i n g upon
t h e
m o t i o n s
t o e x c l u d e
t h e e x p e r t
t e s t i m o n y
o f M c S w a i n .
B e c a u s e t h e r e i s
no i n d i c a t i o n i n t h e r e c o r d
t h a t t h e
t r i a l
c o u r t e x c l u d e d M c S w a i n ' s e x p e r t
o p i n i o n s ,
t h i s C o u r t assumes
t h a t t h e t r i a l c o u r t c o n s i d e r e d M c S w a i n ' s r e p o r t when i t r u l e d
on
T e l e d y n e ' s a n d C i r r u s ' s summary-judgment
m o t i o n s .
See
Hannah, 840 So. 2d a t 850 ( h o l d i n g t h a t when t h e r e c o r d d o e s
n o t
i n d i c a t e
t h a t t h e t r i a l
c o u r t
r u l e d
upon a m o t i o n t o
s t r i k e e x p e r t
t e s t i m o n y , an a p p e l l a t e c o u r t must assume
t h a t
t h e
t r i a l
c o u r t
c o n s i d e r e d t h e e x p e r t
t e s t i m o n y ) ;
T r a v i s v .
Z i t e r , 681 So. 2d 1348, 1351 ( A l a .
1996) ("Because t h e r e was
no i n d i c a t i o n ... t h a t t h e c o u r t h a d e x c l u d e d t h e a f f i d a v i t s ,
we must assume t h a t t h e c i r c u i t c o u r t c o n s i d e r e d them when
i t
r u l e d
on t h e m o t i o n s . " ) .
T h e r e f o r e ,
e v e n
w i t h
M c S w a i n ' s
e x p e r t
o p i n i o n s b e f o r e t h e t r i a l
c o u r t , t h a t c o u r t f o u n d t h a t
t h e
" p l a i n t i f f s
f a i l e d t o p r o d u c e
s u b s t a n t i a l e v i d e n c e
t h a t
any
a l l e g e d d e f e c t i n
t h e e n g i n e - d r i v e n
f u e l pump
p r o x i m a t e l y
41
1080269
c a u s e d an
i n - f l i g h t
f i r e
r e s u l t i n g i n t h e c r a s h and d e a t h o f
S w a n s t r o m . "
U n d e r
New
M e x i c o
l a w ,
1 0
t h e
p l a i n t i f f s
must
p r o d u c e
e v i d e n c e
i n d i c a t i n g
t h a t
a d e f e c t
i n t h e e n g i n e a n d / o r
t h e
f u e l pump c a u s e d t h e c r a s h r e s u l t i n g i n S w a n s t r o m ' s d e a t h t o
e s t a b l i s h a p r i m a f a c i e c a s e f o r t h e i r n e g l i g e n c e and
s t r i c t -
l i a b i l i t y
c l a i m s .
" I t i s w e l l - e s t a b l i s h e d
i n New
M e x i c o
n e g l i g e n c e l a w t h a t m a n u f a c t u r e r s and d i s t r i b u t o r s o f p r o d u c t s
h a v e a d u t y t o u s e o r d i n a r y c a r e i n p r o d u c i n g p r o d u c t s so as
t o a v o i d a f o r e s e e a b l e
r i s k o f i n j u r y c a u s e d by a c o n d i t i o n o f
t h e
p r o d u c t o r manner i n w h i c h i t i s u s e d . "
S m i t h v.
B r y c o
Arms, 131 N.M.
87, 94, 33 P.3d
638, 645
(N.M.
C t . App.
2 0 0 1 ) .
I t
i s " t h e p l a i n t i f f ' s
b u r d e n i n a n e g l i g e n c e c a s e t o p r o v e
t h e
e l e m e n t o f p r o x i m a t e c a u s a t i o n . "
L e w i s ex r e l . L e w i s v.
Samson, 131 N.M.
317,
331, 35 P.3d
972,
986
( 2 0 0 1 ) .
"Under
t h e
s t r i c t p r o d u c t s
l i a b i l i t y
t h e o r y , a s u p p l i e r o f p r o d u c t s
i s
l i a b l e
f o r harm p r o x i m a t e l y c a u s e d by an u n r e a s o n a b l e
r i s k
o f
i n j u r y
r e s u l t i n g f r o m a c o n d i t i o n o f t h e p r o d u c t o r f r o m a
manner o f i t s u s e . "
S m i t h , 131 N.M.
a t 93, 33 P.3d
a t
644.
To s u c c e e d on a t h e o r y o f s t r i c t
l i a b i l i t y ,
a p l a i n t i f f
must
1
0 I t
i s u n d i s p u t e d t h a t
New
M e x i c o
l a w
a p p l i e s
t o
t h e
p l a i n t i f f s '
n e g l i g e n c e and
s t r i c t - l i a b i l i t y c l a i m s .
42
1080269
p r o v e "a d e f e c t
i n t h e p r o d u c t when i t l e a v e s
t h e m a k e r ' s
c o n t r o l a n d t h e c a u s a l
c o n n e c t i o n
b e t w e e n t h e d e f e c t a n d an
i n j u r y . "
S t a t e Farm F i r e & C a s . Co. v . M i l l e r M e t a l Co., 83
N.M. 516, 518, 494 P.2d 178, 180 (N.M. C t .
App. 1 9 7 1 ) .
The
i s s u e h e r e becomes w h e t h e r t h e e v i d e n c e p r o d u c e d b y
t h e p l a i n t i f f s , s u b t r a c t i n g t h e
e v i d e n c e e x c l u d e d by t h e t r i a l
c o u r t , was s u b s t a n t i a l e v i d e n c e
t h a t a d e f e c t i n t h e e n g i n e
a n d / o r
t h e f u e l
pump
c a u s e d
t h e c r a s h
t h a t
r e s u l t e d i n
S w a n s t r o m ' s d e a t h .
The p l a i n t i f f s c o n t e n d t h a t t h e f o l l o w i n g
e v i d e n c e w o u l d s u p p o r t a j u r y v e r d i c t on i t s n e g l i g e n c e a n d
s t r i c t - l i a b i l i t y
c l a i m s :
(1) B r o o k s ' s
t e s t i m o n y
t h a t t h e
a i r c r a f t
" s t a r t e d t o s p u t t e r
as i t
was
t r y i n g t o
e l e v a t e
h i g h e r " ;
(2) M c S w a i n ' s
e x p e r t
o p i n i o n
t h a t
m i c r o s c o p i c
e v i d e n c e o f l e a d a n d b r o m i n e on t h e f u e l pump
d e m o n s t r a t e s
t h a t
t h e f u e l pump
l e a k e d
d u r i n g
S w a n s t r o m ' s
f l i g h t ;
(3)
M c S w a i n ' s e x p e r t
o p i n i o n
t h a t t h e b u r n p a t t e r n s on t h e r i g h t
s i d e
o f t h e e n g i n e
i n d i c a t e an
i n - f l i g h t
f u e l
f i r e ;
(4)
M c S w a i n ' s e x p e r t o p i n i o n t h a t " m e t a l l u r g i c e v i d e n c e " i n d i c a t e s
t h a t t h e e n g i n e was n o t p r o d u c i n g power a t t h e t i m e o f
t h e
a c c i d e n t ;
(5) " t h e c l e a r , s u n n y a n d c o o l w e a t h e r
c o n d i t i o n s
e x p e r i e n c e d by p i l o t
S w a n s t r o m on t a k e o f f
f r o m A n g e l
F i r e " ;
43
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(6) S w a n s t r o m ' s p i l o t i n g
e x p e r i e n c e ;
a n d (7) " t h e f a c t
t h a t
p i l o t S w a n s t r o m ' s u l t i m a t e f l i g h t t o
t h e s o u t h i s
i n c o n s i s t e n t
w i t h a t r i p b a c k t o D u l u t h ,
M i n n e s o t a . "
P l a i n t i f f s ' b r i e f ,
pp. 39,
4 1 .
V i e w i n g
t h i s e v i d e n c e i n
t h e l i g h t most f a v o r a b l e t o
t h e
p l a i n t i f f s , we c o n c l u d e
t h a t
t h e y have p r o d u c e d s u b s t a n t i a l
e v i d e n c e
t o e s t a b l i s h a g e n u i n e
i s s u e o f m a t e r i a l as t o
w h e t h e r t h e c r a s h o f t h e a i r c r a f t a n d t h e r e s u l t i n g d e a t h o f
S w a n s t r o m was p r o x i m a t e l y
c a u s e d by T e l e d y n e ' s n e g l i g e n c e i n
d e s i g n i n g
a n d m a n u f a c t u r i n g
t h e f u e l pump a n d / o r
C i r r u s ' s
n e g l i g e n c e
i n i n s t a l l i n g t h e f u e l pump i n t h e a i r c r a f t .
A
r e v i e w
o f M c S w a i n ' s
r e p o r t s
shows
t h a t t h e f u e l pump "was
f o u n d w i t h
l o o s e pump s e g m e n t s s u b s e q u e n t t o t h e a c c i d e n t , "
and he c o n c l u d e d
t h a t t h e f u e l pump h a d l e a k e d b e c a u s e i t
was
" d e f e c t i v e
as a s s e m b l e d "
w i t h
" e i t h e r i n a d e q u a t e
a s s e m b l y
t o r q u e o r t h e i n a b i l i t y o f t h e
pump t h r u - b o l t s a n d B e l l e v i l l e
w a s h e r s t o t a k e up t h e l o s s o f c l a m p - u p
f o r c e . "
M c S w a i n
f u r t h e r c o n c l u d e d
t h a t t h e
b u r n p a t t e r n s
a n d r e s i d u e
d e p o s i t s
on t h e e n g i n e a n d t h e f u e l pump i n d i c a t e d an i n - f l i g h t
f u e l
f i r e .
I n a d d i t i o n , a l t h o u g h t h e t r i a l
c o u r t e x c l u d e d much o f
Sommer's e x p e r t t e s t i m o n y , t h e t r i a l c o u r t d i d
n o t e x c l u d e t h e
p u r p o r t e d l y e x p e r t o p i n i o n s o f Sommer t h a t a d e s i g n d e f e c t i n
44
1080269
t h e
f u e l pump r e s u l t e d i n f u e l
l e a k a g e .
B a s e d
upon
M c S w a i n ' s
r e p o r t ,
Sommer's
a f f i d a v i t , a n d
e y e w i t n e s s t e s t i m o n y
t h a t s p u t t e r i n g n o i s e s were c o m i n g f r o m
t h e a i r c r a f t s h o r t l y b e f o r e i t
c r a s h e d , we c o n c l u d e t h a t
t h e r e
i s
s u b s t a n t i a l e v i d e n c e f r o m w h i c h t h e j u r y c o u l d
f i n d
t h a t
t h e
f u e l pump was d e f e c t i v e as d e s i g n e d a n d a s s e m b l e d b y
T e l e d y n e a n d / o r t h a t t h e a i r c r a f t was d e f e c t i v e as a s s e m b l e d
by C i r r u s , a n d t h a t t h e s e d e f e c t s p r o b a b l y
c a u s e d an i n - f l i g h t
f u e l
f i r e .
From
t h i s
e v i d e n c e ,
a
r e a s o n a b l e
j u r y
c o u l d
f u r t h e r
i n f e r t h a t an i n - f l i g h t f u e l
f i r e c a u s e d t h e a i r c r a f t
t o
c r a s h .
" ' [ I ] t i s w e l l e s t a b l i s h e d
t h a t t h e q u e s t i o n o f
p r o x i m a t e
c a u s e i s a l m o s t
a l w a y s a q u e s t i o n
o f f a c t t o be
d e t e r m i n e d by t h e j u r y , a n d t h a t t h e q u e s t i o n must go t o
t h e
j u r y i f
r e a s o n a b l e
i n f e r e n c e s
f r o m t h e e v i d e n c e s u p p o r t t h e
p l a i n t i f f ' s e v i d e n c e . ' "
N o r r i s v . C i t y o f M o n t g o m e r y , 821
So.
2d 149, 155 n.8 ( A l a .
2001) ( q u o t i n g Lemond C o n s t r .
Co. v .
W h e e l e r , 669 So. 2d 855, 862 ( A l a . 1 9 9 5 ) ) .
I n sum, d r a w i n g
r e a s o n a b l e
i n f e r e n c e s
i n a
l i g h t
most
f a v o r a b l e
t o t h e
p l a i n t i f f s ,
we
c o n c l u d e
t h a t
a
j u r y
c o u l d
f i n d
t h a t t h e
n e g l i g e n c e
o f T e l e d y n e a n d C i r r u s c a u s e d t h e c r a s h a n d t h a t
t h e
a i r c r a f t a n d t h e f u e l pump were u n r e a s o n a b l y
d a n g e r o u s .
T h e r e f o r e , we c o n c l u d e t h a t t h e t r i a l c o u r t e r r e d i n e n t e r i n g
45
1080269
a summary j u d g m e n t i n f a v o r o f T e l e d y n e and C i r r u s as t o t h e
p l a i n t i f f s '
n e g l i g e n c e
and s t r i c t - l i a b i l i t y
c l a i m s .
2. B r e a c h - o f - W a r r a n t y - C l a i m s
The
p l a i n t i f f s
a l s o a r g u e t h a t t h e t r i a l
c o u r t
e r r e d i n
d i s m i s s i n g
t h e i r
c l a i m s
o f b r e a c h
o f i m p l i e d
w a r r a n t y
and
b r e a c h o f e x p r e s s w a r r a n t y a g a i n s t
C i r r u s .
a.
I m p l i e d
W a r r a n t i e s
The
t r i a l
c o u r t g r a n t e d C i r r u s ' s summary-judgment
m o t i o n
as
t o
t h e
p l a i n t i f f s '
b r e a c h - o f - i m p l i e d - w a r r a n t y
c l a i m s
f i n d i n g
t h a t u n d e r M i n n e s o t a l a w s u c h c l a i m s merge
i n t o t h e
p l a i n t i f f s '
s t r i c t - l i a b i l i t y
c l a i m s .
1
1
The
p l a i n t i f f s
a r g u e
t h a t M i n n e s o t a c o u r t s have n o t c o n c l u s i v e l y merged b r e a c h - o f -
i m p l i e d - w a r r a n t y
c l a i m s
i n t o
s t r i c t - l i a b i l i t y c l a i m s and t h a t
" e v e n i f
M i n n e s o t a h a d merged s t r i c t
l i a b i l i t y and t h e i m p l i e d
w a r r a n t y o f m e r c h a n t a b i l i t y
... C i r r u s w o u l d
s t i l l be
l i a b l e
u n d e r b o t h s t r i c t
l i a b i l i t y and i m p l i e d w a r r a n t y o f
f i t n e s s . "
P l a i n t i f f s '
b r i e f , p. 75.
M i n n e s o t a l a w r e c o g n i z e s two t y p e s o f i m p l i e d
w a r r a n t i e s :
m e r c h a n t a b i l i t y
and
f i t n e s s .
An
i m p l i e d
w a r r a n t y
o f
m e r c h a n t a b i l i t y
r e q u i r e s
t h a t
t h e goods
be
" f i t f o r t h e
1
1 I t i s u n d i s p u t e d on a p p e a l t h a t M i n n e s o t a l a w a p p l i e s t o
t h e
p l a i n t i f f s '
b r e a c h - o f - w a r r a n t y
c l a i m s .
46
1080269
o r d i n a r y
p u r p o s e s
f o r w h i c h goods o f t h a t
t y p e
a r e u s e d . "
M i n n .
S t a t .
§ 336.2A-212.
An
i m p l i e d
w a r r a n t y
o f
f i t n e s s
r e q u i r e s
t h a t t h e goods "be f i t f o r t h [ e ] p u r p o s e "
t h a t t h e
s e l l e r
s p e c i f i e s .
M i n n .
S t a t . § 3 3 6 . 2 A - 2 1 3 ; see a l s o
M i n n .
S t a t .
§ 3 3 6 . 2 - 3 1 5 ,
M i n n e s o t a
Code Cmt.
( d e s c r i b i n g
" [ t ] h e
i m p l i e d w a r r a n t y o f f i t n e s s f o r a t r u l y p a r t i c u l a r p u r p o s e , as
d i s t i n g u i s h e d
f r o m t h e o r d i n a r y
p u r p o s e f o r w h i c h goods a r e
u s e d " ) .
I n t h i s c a s e , t h e c o m p l a i n t d o e s n o t s p e c i f y w h e t h e r t h e
p l a i n t i f f s a r e a l l e g i n g c l a i m s b a s e d on i m p l i e d w a r r a n t i e s
o f
m e r c h a n t a b i l i t y
o r f i t n e s s .
However, t h e c o m p l a i n t d o e s n o t
a l l e g e t h a t C i r r u s , a t t h e t i m e o f c o n t r a c t i n g , h a d r e a s o n t o
know any p a r t i c u l a r p u r p o s e f o r w h i c h t h e a i r c r a f t was t o be
u s e d o r t h a t
S w a n s t r o m was
r e l y i n g on C i r r u s ' s j u d g m e n t t o
s e l e c t an a i r c r a f t a p p r o p r i a t e
f o r a p a r t i c u l a r p u r p o s e .
See
M i n n . S t a t . § 336.2-315
( d e f i n i n g t h e t e r m " i m p l i e d
w a r r a n t y ;
f i t n e s s
f o r a p a r t i c u l a r p u r p o s e " ) .
R a t h e r , t h e
c o m p l a i n t
c o n t a i n s
g e n e r a l
a l l e g a t i o n s
t h a t
C i r r u s w a r r a n t e d
t h a t t h e
a i r c r a f t was " r e a s o n a b l y f i t f o r i t s
i n t e n d e d and
f o r e s e e a b l e
use
and p u r p o s e ,
f r e e o f d e f e c t s ,
and s a f e and i n
a i r w o r t h y
c o n d i t i o n . "
A c c o r d i n g l y ,
we
c o n c l u d e
t h a t
t h e
c o m p l a i n t
a l l e g e s
t h e more
g e n e r a l
c l a i m
o f
b r e a c h
o f
an
i m p l i e d
47
1080269
w a r r a n t y o f m e r c h a n t a b i l i t y .
The
p l a i n t i f f s
a r g u e
t h a t
t h e t r i a l
c o u r t
e r r e d i n
f i n d i n g
t h a t
t h e i r
b r e a c h - o f - i m p l i e d - w a r r a n t y
c l a i m s
m e r g e d
i n t o
t h e i r
s t r i c t - l i a b i l i t y
c l a i m s u n d e r M i n n e s o t a l a w . I n
s u p p o r t
o f
t h i s
a r g u m e n t ,
t h e
p l a i n t i f f s
r e l y
on an
u n p u b l i s h e d
o p i n i o n o f t h e C o u r t o f A p p e a l s o f M i n n e s o t a
s t a t i n g t h a t " M i n n e s o t a l a w d o e s n o t a p p e a r t o have
r e s o l v e d
c o n c l u s i v e l y w h e t h e r s u b m i t t i n g
[ s t r i c t - l i a b i l i t y a n d b r e a c h -
o f - i m p l i e d - w a r r a n t y - o f - m e r c h a n t a b i l i t y ]
t h e o r i e s t o
a j u r y
i s
a p p r o p r i a t e . "
S t a t e Farm F i r e C a s .
Co. v . B u r n s , No. C9-94-
735
( M i n n . C t .
App.,
Nov. 15, 1994) ( n o t r e p o r t e d i n
N.W.2d).
Our
r e v i e w
o f M i n n e s o t a l a w d e m o n s t r a t e s
t h a t
b r e a c h - o f -
i m p l i e d - w a r r a n t y - o f - m e r c h a n t a b i l i t y
c l a i m s
a r e merged
i n t o
s t r i c t - l i a b i l i t y
c l a i m s f o r d e s i g n a n d m a n u f a c t u r i n g
d e f e c t s
when s t r i c t
l i a b i l i t y i s
t h e
b r o a d e r t h e o r y o f r e c o v e r y . See
B i l o t t a v . K e l l e y Co., 346 N.W.2d 616, 623 ( M i n n . 1984) ("a
t r i a l c o u r t c o u l d p r o p e r l y s u b m i t a d e s i g n - d e f e c t o r f a i l u r e -
t o - w a r n
c a s e
t o a
j u r y on a
s i n g l e
t h e o r y
o f
p r o d u c t s
l i a b i l i t y " ) ;
G o b l i r s c h v . W. L a n d R o l l e r Co., 310 M i n n . 4 7 1 ,
476,
246 N.W.2d 687, 690 (1976)
( f i n d i n g no p r e j u d i c e i n
f a i l u r e t o i n s t r u c t t h e j u r y on b o t h
e x p r e s s - a n d i m p l i e d -
w a r r a n t y
t h e o r i e s b e c a u s e a " s t r o n g e r a n d b r o a d e r "
s t r i c t -
48
1080269
l i a b i l i t y
i n s t r u c t i o n
was
g i v e n ) ;
I n
r e
S h i g e l l o s i s
L i t i g a t i o n ,
647 N.W.2d 1, 11 ( M i n n . C t .
App. 2002)
( s t a t i n g
t h a t "when an i n s t r u c t i o n on s t r i c t
l i a b i l i t y i s
s t r o n g e r
a n d
b r o a d e r
u n d e r t h e c a s e
f a c t s ,
i t w o u l d
be r e d u n d a n t a n d
c o n f u s i n g t o i n s t r u c t on b r e a c h o f i m p l i e d w a r r a n t y " ) ; G r o s s
ex r e l . G r o s s v . R u n n i n g , 403 N.W.2d 2 4 3 , 245 ( M i n n . C t . App.
1987)
( h o l d i n g
t h a t i n B i l o t t a " t h e
M i n n e s o t a Supreme
C o u r t
m e r g e d
s t r i c t
l i a b i l i t y ,
n e g l i g e n c e , a n d i m p l i e d
w a r r a n t y
r e m e d i e s
i n t o a s i n g l e
t h e o r y o f p r o d u c t s
l i a b i l i t y " ) ; a n d
C o n t i n e n t a l I n s . Co. v . L o c t i t e
C o r p . , 352 N.W.2d 4
60
, 463
( M i n n . C t .
App. 1984) ( s t a t i n g , i n a d d r e s s i n g p r o p r i e t y o f
j u r y
i n s t r u c t i o n s ,
t h a t i n c a s e s where
" s t r i c t
l i a b i l i t y i s
t h e
b r o a d e r t h e o r y o f r e c o v e r y ... [ i m p l i e d w a r r a n t i e s
a r e ]
p r e - e m p t e d " ) .
The U n i t e d S t a t e s C o u r t o f A p p e a l s f o r t h e
E i g h t h
C i r c u i t ,
a p p l y i n g
M i n n e s o t a l a w ,
h a s e x p l a i n e d t h a t
M i n n e s o t a c o u r t s have m e r g e d t h e
t h e o r y o f i m p l i e d w a r r a n t y o f
m e r c h a n t a b i l i t y
i n t o t h e t h e o r y o f s t r i c t p r o d u c t s
l i a b i l i t y
b e c a u s e an i m p l i e d w a r r a n t y o f m e r c h a n t a b i l i t y i s " a n a l o g o u s
t o t h e t h e o r y o f s t r i c t
l i a b i l i t y f o r
d e s i g n d e f e c t ,
w h i c h
r e f e r s
t o harm
t h a t
r e s u l t s when a p r o d u c t
' i s
p u t t o i t s
i n t e n d e d u s e . ' "
P i o t r o w s k i v . S o u t h w o r t h
P r o d s . C o r p . , 15
F.3d 748,
751 ( 8 t h
C i r . 1994) ( q u o t i n g 4 M i n n e s o t a
P r a c t i c e ,
49
1080269
CIV.
J I G 101 & 117 (3d e d .
1 9 8 6 ) ) .
I n t h e p r e s e n t
c a s e ,
we
c o n c l u d e
t h a t t h e t r i a l
c o u r t
c o r r e c t l y
f o u n d
t h a t
u n d e r
M i n n e s o t a
l a w t h e
p l a i n t i f f s '
c l a i m s o f i m p l i e d w a r r a n t y o f m e r c h a n t a b i l i t y merged i n t o t h e
p l a i n t i f f s '
s t r i c t - l i a b i l i t y
c l a i m s b e c a u s e t h e
p l a i n t i f f s '
s t r i c t - l i a b i l i t y
c l a i m s
t h a t
" C i r r u s
...
d e s i g n e d ,
m a n u f a c t u r e d , b u i l t ,
c o n s t r u c t e d , a n d / o r a s s e m b l e d t h e s u b j e c t
i n c i d e n t
a i r c r a f t
i n s u c h a way
t h a t
i t was
u n r e a s o n a b l y
d a n g e r o u s f o r o p e r a t i o n b y t h e r e a s o n a b l e
and p r u d e n t
p i l o t "
a r e
s t r o n g e r
and b r o a d e r
t h a n
t h e
p l a i n t i f f s '
b r e a c h - o f -
i m p l i e d - w a r r a n t y - o f - m e r c h a n t a b i l i t y
c l a i m s .
A c c o r d i n g l y , we
c o n c l u d e t h e p l a i n t i f f s '
c l a i m s o f b r e a c h o f i m p l i e d w a r r a n t y
o f
m e r c h a n t a b i l i t y do n o t s u r v i v e a n d , t h e r e f o r e ,
t h a t t h e
t r i a l
c o u r t p r o p e r l y e n t e r e d a summary j u d g m e n t i n f a v o r o f
C i r r u s on t h e b r e a c h - o f - i m p l i e d - w a r r a n t y
c l a i m s .
b. E x p r e s s
W a r r a n t i e s
The
p l a i n t i f f s
a l s o a r g u e t h a t t h e t r i a l c o u r t
i m p r o p e r l y
e n t e r e d
a summary j u d g m e n t i n f a v o r o f C i r r u s as t o
t h e i r
b r e a c h - o f - e x p r e s s - w a r r a n t y
c l a i m s b e c a u s e , t h e y s a y , g e n u i n e
i s s u e s
o f m a t e r i a l
f a c t
e x i s t
r e g a r d i n g
C i r r u s ' s
a l l e g e d
b r e a c h o f any e x p r e s s
w a r r a n t i e s .
The
t r i a l
c o u r t
d i s m i s s e d
t h e p l a i n t i f f s '
c l a i m s o f b r e a c h o f e x p r e s s
w a r r a n t y ,
f i n d i n g
50
1080269
t h a t t h e p l a i n t i f f s h a d f a i l e d t o
p r o d u c e
s u b s t a n t i a l e v i d e n c e
o f t h e
e x i s t e n c e o f
an e x p r e s s w a r r a n t y .
U n d e r M i n n e s o t a l a w ,
" [ t ] o
p r e v a i l on a w a r r a n t y c l a i m t h e
p l a i n t i f f must p r o v e t h e
e x i s t e n c e o f a w a r r a n t y , a b r e a c h , a n d a c a u s a l
l i n k b e t w e e n
t h e b r e a c h a n d
t h e a l l e g e d harm."
S c h w e i c h v . Z i e g l e r , I n c . ,
463 N.W.2d 722, 730 ( M i n n . 1 9 9 0 ) .
The M i n n e s o t a Supreme C o u r t
has
h e l d
t h a t
" [ n ] o p a r t i c u l a r
w o r d s
a r e r e q u i r e d
t o
c o n s t i t u t e an e x p r e s s w a r r a n t y , " McCormack v . H a n k s c r a f t Co.,
278
M i n n .
3 2 2 , 336, 154 N.W.2d 488, 498
( 1 9 6 7 ) ;
h o w e v e r ,
M i n n e s o t a
s t a t u t e § 3 3 6 . 2 - 3 1 3 ( 1 )
p r o v i d e s
t h a t an e x p r e s s
w a r r a n t y may be c r e a t e d as f o l l o w s :
" ( a ) Any a f f i r m a t i o n o f f a c t o r p r o m i s e made b y
t h e
s e l l e r t o t h e b u y e r w h i c h
r e l a t e s t o t h e goods
and becomes p a r t o f t h e
b a s i s o f t h e
b a r g a i n
c r e a t e s
an e x p r e s s w a r r a n t y t h a t t h e
goods s h a l l c o n f o r m t o
t h e a f f i r m a t i o n o r p r o m i s e .
" ( b ) Any d e s c r i p t i o n o f t h e
goods w h i c h i s
made
p a r t o f t h e b a s i s o f t h e b a r g a i n
c r e a t e s an e x p r e s s
w a r r a n t y
t h a t
t h e goods
s h a l l
c o n f o r m
t o t h e
d e s c r i p t i o n .
" ( c ) Any s a m p l e o r m o d e l w h i c h i s
made p a r t o f
t h e b a s i s o f
t h e
b a r g a i n
c r e a t e s an e x p r e s s w a r r a n t y
t h a t t h e w h o l e o f t h e goods
s h a l l
c o n f o r m t o
t h e
s a m p l e o r m o d e l . "
( E m p h a s i s
added.)
H e r e , t h e p l a i n t i f f s a r g u e
t h a t a s t a t e m e n t i n
a
l e t t e r
f r o m t h e v i c e p r e s i d e n t o f s a l e s a n d m a r k e t i n g f o r
C i r r u s ,
51
1080269
Thomas S h e a , t o S w a n s t r o m , s t a t i n g t h a t " o u r
commitment i s
t o
p r o d u c e f o r
you t h e h i g h e s t
q u a l i t y s a f e s t a i r c r a f t a v a i l a b l e
i n t h e w o r l d
t o d a y "
c r e a t e d
an e x p r e s s
w a r r a n t y
t h a t t h e
a i r c r a f t was s a f e a n d a i r w o r t h y .
E v e n t h o u g h C i r r u s
m a i l e d
t h e l e t t e r a f t e r S w a n s t r o m h a d e x e c u t e d t h e
p u r c h a s e a g r e e m e n t
f o r
t h e a i r c r a f t ,
t h e p l a i n t i f f s
c o n t e n d
t h a t t h e
l e t t e r
m o d i f i e d t h e p u r c h a s e a g r e e m e n t .
We f i n d t h i s a r g u m e n t t o be
w i t h o u t
m e r i t b e c a u s e t h e p u r c h a s e a g r e e m e n t , by i t s t e r m s ,
o p e r a t e s
as t h e s o l e a g r e e m e n t b e t w e e n C i r r u s a n d S w a n s t r o m
f o r t h e s a l e o f t h e a i r c r a f t .
S e c t i o n 12.01 o f t h e p u r c h a s e
a g r e e m e n t s t a t e s :
" T h i s
a g r e e m e n t i s t h e o n l y A g r e e m e n t
c o n t r o l l i n g
t h e
p u r c h a s e a n d t h e S a l e
o f t h e a i r c r a f t .
The
P u r c h a s e r
e x p r e s s l y a c k n o w l e d g e s t h a t P u r c h a s e r h a s
n o t
r e l i e d on any o r a l o r w r i t t e n r e p r e s e n t a t i o n s o f
t h e
S e l l e r
e x c e p t as
s p e c i f i c a l l y
s t a t e d i n t h i s
a g r e e m e n t .
F u r t h e r
t h e
S e l l e r
h a s
made
no
r e p r e s e n t a t i o n s o f t h e s u i t a b i l i t y o f t h e A i r c r a f t
f o r any p a r t i c u l a r p u r p o s e o f t h e P u r c h a s e r .
The
a i r c r a f t
i s a
g e n e r a l
a v i a t i o n
a i r c r a f t
a n d i s
s p e c i f i c a l l y
l i m i t e d i n
u s e f o r
g e n e r a l
a v i a t i o n . "
The
p l a i n t i f f s
a l s o c o n t e n d t h a t
a d v e r t i s e m e n t s
f r o m C i r r u s
c r e a t e d
e x p r e s s
w a r r a n t i e s
t h a t t h e a i r c r a f t was
s a f e a n d
a i r w o r t h y .
Y e t t h i s v a g u e c o n t e n t i o n i s n o t s u p p o r t e d
b y a
d e s c r i p t i o n
o f any
a f f i r m a t i o n s
made
b y
C i r r u s
i n an
a d v e r t i s e m e n t
o r any e v i d e n c e
i n d i c a t i n g
t h a t
S w a n s t r o m ' s
52
1080269
d e c i s i o n t o p u r c h a s e t h e a i r c r a f t
was
a f f e c t e d by a
C i r r u s
a d v e r t i s e m e n t .
We
c o n c l u d e
t h a t
t h e
p l a i n t i f f s
have
n o t
p r o d u c e d
s u b s t a n t i a l e v i d e n c e o f t h e e x i s t e n c e o f an e x p r e s s
w a r r a n t y
b e c a u s e n e i t h e r t h e l e t t e r n o r t h e a d v e r t i s e m e n t s
m o d i f i e d t h e
p u r c h a s e a g r e e m e n t t o c o n s t i t u t e t h e " b a s i s o f t h e b a r g a i n "
f o r t h e
a i r c r a f t .
C o n c l u s i o n
F o r
t h e f o r e g o i n g
r e a s o n s ,
we
c o n c l u d e
t h a t t h e
t r i a l
c o u r t d i d
n o t e r r
i n e x c l u d i n g c e r t a i n e v i d e n c e , and we
a f f i r m
t h e
t r i a l
c o u r t ' s
summary
j u d g m e n t
w i t h
r e s p e c t
t o t h e
p l a i n t i f f s '
b r e a c h - o f - w a r r a n t y
c l a i m s
a g a i n s t
C i r r u s .
We
r e v e r s e t h e t r i a l c o u r t ' s summary j u d g m e n t w i t h r e s p e c t t o
t h e
p l a i n t i f f s '
n e g l i g e n c e
and
s t r i c t - l i a b i l i t y
c l a i m s
a g a i n s t
T e l e d y n e and C i r r u s , and we remand t h e c a s e t o t h e t r i a l
c o u r t
f o r
a d d i t i o n a l
p r o c e e d i n g s .
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Cobb, C . J . , and W o o d a l l , P a r k e r , and Shaw, J J . , c o n c u r .
53 | November 20, 2009 |
390ca4a1-331d-4140-9f3f-36e54ae03767 | Ex parte Birmingham Board of Education. PETITION FOR WRIT OF OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Francine Boone et al v. Birmingham Board of Education) | N/A | 1071539 | Alabama | Alabama Supreme Court | R e l : 11/06/2009
Notice: T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e
advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e
r e q u e s t e d t o n o t i f y t h e
Reporter of
Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741 ((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l o r
o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may
be
made b e f o r e
t h e o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1071539
Ex p a r t e Birmingham Board o f E d u c a t i o n
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
( I n r e :
F r a n c i n e Boone e t a l .
v.
Birmingham Board o f E d u c a t i o n )
( J e f f e r s o n C i r c u i t Court, CV-06-2877;
Court o f C i v i l Appeals, 2061147)
PARKER,
J u s t i c e .
The p e t i t i o n e r , t h e
B i r m i n g h a m B o a r d o f E d u c a t i o n ("the
1071539
BOE"), a s k s us t o r e v i e w t h e d e c i s i o n o f t h e A l a b a m a C o u r t o f
C i v i l
A p p e a l s
h o l d i n g
t h a t
a p p o i n t m e n t s
t o
n o n t e a c h i n g
s u p p l e m e n t a l
p o s i t i o n s made b y
t h e
BOE
a r e
s u b j e c t t o
t h e
n o t i f i c a t i o n r e q u i r e m e n t s o f t h e T e a c h e r T e n u r e A c t , § 16-24-1
e t
s e q . , A l a . Code 1975
("the T T A " ) , f o r n o n r e n e w a l when t h e
a p p o i n t e e i s a " t e a c h e r " as t h a t t e r m i s d e f i n e d i n t h e
TTA.
The BOE
a r g u e s
t h a t t h e C o u r t o f C i v i l A p p e a l s has i m p r o p e r l y
e x t e n d e d
t h e r e a c h o f t h e TTA
and
t h a t
t h a t c o u r t ' s o p i n i o n
c o n f l i c t s w i t h e x i s t i n g p r e c e d e n t . We
a g r e e ,
and we
r e v e r s e
t h e C o u r t o f C i v i l A p p e a l s ' d e c i s i o n and remand t h e
c a s e .
B a c k g r o u n d
F r a n c i n e
Boone, Demarcus G a t e s ,
D o r e t t a H a r r i s ,
A l v i n
M o o r e , James D r a k e , K e n n e t h J o h n s o n , and Howard R o s s , J r . , t h e
p l a i n t i f f s / r e s p o n d e n t s
("the
p l a i n t i f f s " ) ,
were
c e r t i f i e d
t e a c h e r s e m p l o y e d b y
t h e BOE
a t a l l t i m e s
r e l e v a n t
t o
t h i s
c a s e . I n
a d d i t i o n
t o
t h e i r
t e a c h i n g d u t i e s ,
t h e
p l a i n t i f f s
were e m p l o y e d b y s e p a r a t e a p p o i n t m e n t
t o p r o v i d e
a d d i t i o n a l
s e r v i c e s
i n e x t r a c u r r i c u l a r
a c t i v i t i e s ,
s e r v i n g
as
c o a c h e s ,
f o o t b a l l
w o r k e r s ,
and
s u p p o r t - a c t i v i t y
s p o n s o r s .
The
q u a l i f i c a t i o n s f o r t h e s e p o s i t i o n s do n o t i n c l u d e a t e a c h i n g
c e r t i f i c a t e ,
and t h e p o s i t i o n s a r e n o t r e s e r v e d f o r t e a c h e r s .
2
1071539
When
t e a c h e r s
a r e
e m p l o y e d
t o
f i l l
t h e s e
p o s i t i o n s ,
t h e
a d d i t i o n a l
d u t i e s a r e
n o t
i n c o r p o r a t e d i n t o
t h e i r
t e a c h i n g
c o n t r a c t s ;
r a t h e r ,
t h e
t e a c h e r s
e n t e r
i n t o
s u p p l e m e n t a l
c o n t r a c t s
when
t h e y
a r e
a p p o i n t e d
t o
t h o s e
s u p p l e m e n t a l
p o s i t i o n s . These a p p o i n t m e n t s
a r e d o c u m e n t e d u s i n g a s e p a r a t e
n o t i f i c a t i o n
f o r m b y w h i c h
t h e BOE
u n i l a t e r a l l y n o t i f i e s
t h e
t e a c h e r t h a t he o r she has b e e n a p p o i n t e d t o
f i l l
a
s p e c i f i e d
p o s i t i o n
f o r a
s p e c i f i e d
t i m e
a t
a
s p e c i f i e d
s a l a r y .
The
s a l a r y f o r t h e a p p o i n t e d p o s i t i o n i s e x p r e s s e d
as a lump
sum
and
i s
b a s e d
on
a
d i f f e r e n t
s a l a r y
s c h e d u l e
and
p a i d
s e p a r a t e l y
f r o m
t h e
t e a c h e r ' s
s a l a r y
f o r
c l a s s r o o m
i n s t r u c t i o n .
T r a d i t i o n a l l y ,
t h e BOE
n o t i f i e d
t e a c h e r s who
had
s e r v e d
i n
t h e
s u p p l e m e n t a l
p o s i t i o n s
b e f o r e
t h e
end
o f t h e
s c h o o l
t e r m
t h a t
t h e y w o u l d
n o t
be
a p p o i n t e d
t o
t h e
s u p p l e m e n t a l
p o s i t i o n s f o r t h e f o l l o w i n g s c h o o l y e a r . I n t h e s c h o o l y e a r s
2004,
2 0 0 5 ,
and
200 6,
h o w e v e r ,
t h e
BOE
d e p a r t e d
f r o m
i t s
e a r l i e r p r a c t i c e and d i d n o t n o t i f y t h e t e a c h e r s a p p o i n t e d
t o
t h e
s u p p l e m e n t a l
p o s i t i o n s
u n t i l
a f t e r
t h e
s c h o o l y e a r
had
e n d e d t h a t t h e y w o u l d n o t
be
r e a p p o i n t e d .
On
May
12,
2006,
f o u r o f t h e
p l a i n t i f f s s u e d t h e BOE
i n t h e J e f f e r s o n C i r c u i t
3
1071539
C o u r t ;
1
t h e
o t h e r
t h r e e
p l a i n t i f f s
were
p e r m i t t e d
t o
l a t e r
j o i n
t h e
a c t i o n . I n
t h e i r
c o m p l a i n t ,
t h e
p l a i n t i f f s
a l l e g e d ,
i n p e r t i n e n t p a r t , t h a t t h e BOE
had v i o l a t e d s t a t u t o r y l a w
and
c a s e l a w and
had b r e a c h e d i t s s u p p l e m e n t a l c o n t r a c t
w i t h
e a c h
p l a i n t i f f .
The
c o m p l a i n t
a l l e g e d :
" [ E ] a c h
p l a i n t i f f
has
had
a s u p p l e m e n t a l
c o n t r a c t
f o r
c o a c h i n g
o r
o t h e r
s p o r t
r e l a t e d
p o s i t i o n
c a n c e l l e d b y
t h e
[ B O E ]
w i t h i n
t h e
p a s t
t h r e e
y e a r s
s i n c e
t h e
f i l i n g
o f
t h i s
c o m p l a i n t .
E a c h
c a n c e l l a t i o n
o f
s a i d
P l a i n t i f f s '
s u p p l e m e n t a l
c o n t r a c t
was
c o n t r a
t o
A l a b a m a
l a w
a n d / o r
[ B O E ]
p o l i c y
i n
t h a t
[ B O E ]
a c t i o n
r e g a r d i n g
t h e
t e r m i n a t i o n
o f
s a i d c o n t r a c t s
d i d n o t
o c c u r
i n
t h e
t i m e a l l o w e d
b y
s t a t u t e
and
c a s e
l a w
a n d / o r
p r o p e r
n o t i c e o f s a i d c a n c e l l a t i o n was
n o t
r e c e i v e d b y
t h e
P l a i n t i f f s
as
r e q u i r e d
b y
s t a t u t e
and
c a s e
l a w
t o
w i t :
D a v i s v.
R u s s e l l
8 5 [ 2 ]
So.
2d
774
( A l a .
C i v .
App.
2 0 0 2 ) ( w h e n a f f e c t i n g s u b s e q u e n t y e a r ' s
s a l a r y ,
c a n c e l l a t i o n
o f
s u p p l e m e n t a l
c o n t r a c t
r e q u i r e s
w r i t t e n n o t i c e be
g i v e n
t o s c h o o l e m p l o y e e p r i o r t o
end
o f p r e s e n t
s c h o o l ) . "
On M a r c h 26,
2007, t h e
BOE
f i l e d a m o t i o n f o r a summary
j u d g m e n t . The
BOE
a r g u e d i n i t s m o t i o n t h a t t h e p l a i n t i f f s
had
p r e s e n t e d
no
d i s p u t e d
i s s u e
o f
m a t e r i a l
f a c t
b u t
t h a t
t h e
p l a i n t i f f s '
c a s e
was
" f o u n d e d
on
a m i s a p p r e h e n s i o n
o f
t h e
n a t u r e o f t h e i r e m p l o y m e n t and a c o n c o m i t a n t m i s a p p l i c a t i o n
o f
1The
c o m p l a i n t
does
n o t
p r o v i d e
s p e c i f i c
i n f o r m a t i o n
r e g a r d i n g
t h e d a t e s on w h i c h t h e p l a i n t i f f s were n o t i f i e d
t h a t
t h e y w o u l d n o t
be
r e a p p o i n t e d
t o t h e
s u p p l e m e n t a l p o s i t i o n s ,
n o r d o e s t h e c o m p l a i n t s p e c i f y t h e
s c h o o l y e a r s i n w h i c h
t h e
p l a i n t i f f s
a l l e g e t h e y were n o t
p r o p e r l y
n o t i f i e d .
4
1071539
c o n t r o l l i n g
l e g a l
p r i n c i p l e s . "
The
BOE
a r g u e d
t h a t
t h e
p l a i n t i f f s '
a t t e m p t
t o s u p e r i m p o s e
a s t a t u t o r y - n o t i c e - o f -
n o n r e t e n t i o n
r e q u i r e m e n t on s u p p l e m e n t a l
p o s i t i o n s h e l d b y
t e a c h e r s
t h a t a r e n o t t e a c h i n g p o s i t i o n s and t h a t e x i s t
o n l y
f o r a d e f i n i t e d u r a t i o n w i t h a b u i l t - i n
n o t i c e o f e x p i r a t i o n
i s
m i s p l a c e d
a n d s h o u l d be r e j e c t e d as a m a t t e r o f l a w . The
BOE f u r t h e r a r g u e d t h a t t h e p l a i n t i f f s ' r e l i a n c e on § 1 6 - 2 4 ¬
12, A l a .
Code 1975, e n t i t l e d
" T e a c h e r deemed r e e m p l o y e d f o r
s u c c e e d i n g
s c h o o l
y e a r
u n l e s s
n o t i f i e d , "
i s
l i k e w i s e
m i s p l a c e d .
T h a t
s t a t u t e , t h e BOE
a r g u e d ,
a p p l i e s
o n l y t o
t e a c h e r s , and t h e s u p p l e m e n t a l p o s i t i o n s , w h i c h may be
f i l l e d
b y p e r s o n s o t h e r t h a n t e a c h e r s , i . e . , b y p e r s o n s n o t
c e r t i f i e d
b y
t h e
S t a t e
D e p a r t m e n t
o f
E d u c a t i o n ,
a r e n o t
t e a c h i n g
p o s i t i o n s ;
t h e r e f o r e , t h e BOE
a r g u e d ,
e m p l o y e e s ,
i n c l u d i n g
t e a c h e r s ,
f i l l i n g t h o s e n o n t e a c h i n g
s u p p l e m e n t a l p o s i t i o n s a r e
n o t
c o v e r e d b y § 1 6 - 2 4 - 1 2 .
The
t r i a l
c o u r t
e n t e r e d
a summary j u d g m e n t i n f a v o r o f
t h e
BOE.
I n i t s o r d e r ,
t h e
t r i a l
c o u r t
f o u n d
t h a t
t h e
a p p o i n t m e n t s f o r
t h e s u p p l e m e n t a l p o s i t i o n s " a r e a p p r o v e d o n l y
f o r
s e a s o n a l
a s s i g n m e n t s
t h a t a r e n o t c o e x t e n s i v e
w i t h t h e
s c h o o l t e r m . " The t r i a l c o u r t a l s o n o t e d as an u n d i s p u t e d
f a c t
5
1071539
t h a t " [ s ] u p p l e m e n t a l employment i s n e i t h e r i n c l u d e d w i t h i n n o r
c o v e r e d b y ... t e a c h i n g c o n t r a c t s , and i s a p p r o v e d s e p a r a t e l y
f r o m c o n t r a c t s r e l a t i n g t o t e a c h i n g s e r v i c e . " The
p l a i n t i f f s
a p p e a l e d .
On a p p e a l , t h e C o u r t o f C i v i l A p p e a l s f o u n d t h a t t h e BOE
h a d
v i o l a t e d
§
1 6 - 2 4 - 1 2 ,
A l a Code
1975.
I t r e v e r s e d
t h e
d e c i s i o n o f t h e t r i a l c o u r t and remanded t h e c a s e f o r f u r t h e r
p r o c e e d i n g s . Boone v. B i r m i n g h a m Bd. o f E d u c . ,
[Ms.
2 0 6 1 1 4 7 ,
J u l y 25, 2008] ___ So. 3d ___
( A l a .
C r i m . App. 2 0 0 8 ) . The
BOE
p e t i t i o n e d t h i s C o u r t f o r a w r i t o f c e r t i o r a r i a s k i n g t h a t we
r e v i e w as a m a t t e r
o f
f i r s t
i m p r e s s i o n t h e d e c i s i o n
o f t h e
C o u r t
o f
C i v i l
A p p e a l s
t h a t
e x t e n d s
§ 1 6 - 2 4 - 1 2 ,
A l a . Code
1975, t o n o n t e a c h i n g p o s i t i o n s i f t h e p e r s o n a p p o i n t e d t o t h a t
p o s i t i o n i s a t e a c h e r .
S t a n d a r d o f R e v i e w
Our
s t a n d a r d o f r e v i e w i s de n o v o : " B e c a u s e t h e
i s s u e s
p r e s e n t e d
b y
[ t h i s
a p p e a l ]
c o n c e r n
o n l y q u e s t i o n s
o f
l a w
i n v o l v i n g s t a t u t o r y c o n s t r u c t i o n , t h e s t a n d a r d o f r e v i e w i s de
n o v o .
See
T a y l o r
v.
Cox,
710
So.
2d
40 6
( A l a . 1998 ) . "
W h i t e h u r s t v. B a k e r , 959 So. 2d 69, 70 ( A l a .
2 0 0 6 ) . T h i s C o u r t
has a l s o
s a i d :
6
1071539
" [ I ] t
i s t h i s
C o u r t ' s
r e s p o n s i b i l i t y
i n a
c a s e
i n v o l v i n g
s t a t u t o r y
c o n s t r u c t i o n t o g i v e
e f f e c t t o
t h e l e g i s l a t u r e ' s
i n t e n t i n e n a c t i n g a s t a t u t e when
t h a t
i n t e n t
i s m a n i f e s t e d i n t h e w o r d i n g
o f t h e
s t a t u t e .
Bean
D r e d g i n g [ , LLC v . A l a b a m a
Dep't o f
R e v e n u e ] , 855 So. 2d [513] a t 517 [ ( A l a . 2 0 0 3 ) ] . ...
' " ' " I f t h e l a n g u a g e o f t h e s t a t u t e i s u n a m b i g u o u s ,
t h e n t h e r e i s no room f o r j u d i c i a l
c o n s t r u c t i o n and
t h e c l e a r l y e x p r e s s e d i n t e n t o f t h e l e g i s l a t u r e must
be g i v e n e f f e c t . " ' " '
P i t t s v . G a n g i , 896 So. 2d 433,
436
( A l a . 2004) ( q u o t i n g D e K a l b C o u n t y LP Gas Co. v .
S u b u r b a n Gas, I n c . ,
729 So. 2d 270, 275 ( A l a . 1 9 9 8 ) ,
q u o t i n g i n t u r n
e a r l i e r
c a s e s ) . I n d e t e r m i n i n g t h e
i n t e n t
o f t h e
l e g i s l a t u r e ,
we
must
e x a m i n e t h e
s t a t u t e as a w h o l e a n d , i f
p o s s i b l e , g i v e e f f e c t t o
e a c h s e c t i o n . E m p l o y e e s '
R e t i r e m e n t S y s . o f A l a b a m a
v. Head, 369 So. 2d 1227, 1228 ( A l a . 1 9 7 9 ) . "
Ex p a r t e E x x o n M o b i l C o r p . , 926 So. 2d 303, 309 ( A l a . 2 0 0 5 ) .
F u r t h e r ,
"when
d e t e r m i n i n g
l e g i s l a t i v e
i n t e n t
f r o m
t h e
l a n g u a g e u s e d i n a s t a t u t e , a c o u r t may e x p l a i n t h e
l a n g u a g e , b u t i t
may n o t d e t r a c t f r o m o r add t o t h e
s t a t u t e .
S i e g e l m a n v. Chase M a n h a t t a n
Bank
(USA),
N a t ' l A s s ' n , 575 So. 2d 1 0 4 1 , 1045 ( A l a . 1 9 9 1 ) . When
t h e l a n g u a g e i s c l e a r , t h e r e i s
no room f o r j u d i c i a l
c o n s t r u c t i o n .
E m p l o y e e s '
R e t i r e m e n t
S y s t e m
[ v .
H e a d ] , 369 So. 2d [1227,] 1228
[ ( A l a . 2 0 0 2 ) ] . "
W a t e r Works & Sewer Bd. o f S e l m a , 833 So. 2d 604, 607
( A l a .
2 0 0 2 ) .
A n a l y s i s
T h i s c a s e t u r n s on t h e c o n s t r u c t i o n o f two s t a t u t e s , §§
16-24-1 a n d 1 6 - 2 4 - 1 2 , A l a .
Code 1975, b o t h c o n t a i n e d i n t h e
TTA. B o t h s t a t u t e s have p r e v i o u s l y b e e n i n t e r p r e t e d i n c a s e s
7
1071539
s i m i l a r ,
b u t n o t
i d e n t i c a l ,
t o t h i s
c a s e .
The
BOE
a r g u e s
t h a t
" i n o r d e r
t o meet
t h e
s t a t u t o r y
d e f i n i t i o n
[ o f t e a c h e r ] , t h e e m p l o y e e must p o s s e s s
a t e a c h i n g
c e r t i f i c a t e i s s u e d by t h e S t a t e D e p a r t m e n t o f E d u c a t i o n and
be
e m p l o y e d
as
an
i n s t r u c t o r ,
p r i n c i p a l ,
o r
s u p e r v i s o r
i n
a
p u b l i c s c h o o l . See
g e n e r a l l y A l a . Code [1975,] § 1 6 - 2 3 - 1 ,
e t
s e q . "
BOE's
b r i e f ,
a t
16.
T h i s
p o s i t i o n
r e l i e s
on
t h e
d e f i n i t i o n
o f " t e a c h e r " f o u n d
i n § 1 6 - 2 4 - 1 , A l a . Code
1975.
S e c t i o n 1 6 - 2 4 - 1 , A l a . Code 1975,
d e f i n e s
" t e a c h e r "
f o r
t h e p u r p o s e s o f t h e TTA,
as
f o l l o w s :
"The
t e r m
' t e a c h e r , '
as
e m p l o y e d
i n
t h i s
c h a p t e r ,
i s deemed t o mean and
i n c l u d e a l l p e r s o n s
r e g u l a r l y
c e r t i f i e d
by
t h e
t e a c h e r
c e r t i f i c a t i n g
a u t h o r i t y
o f
t h e
S t a t e
o f
A l a b a m a
who
may
be
e m p l o y e d as
i n s t r u c t o r s ,
p r i n c i p a l s
o r
s u p e r v i s o r s
i n
t h e
p u b l i c e l e m e n t a r y
and
h i g h
s c h o o l s
o f
t h e
S t a t e o f A l a b a m a
"
S e c t i o n
1 6 - 2 4 - 1 2 ,
A l a .
Code
1975,
p r o v i d e s
f o r
t h e
c o n t i n u a t i o n
o f a t e a c h e r ' s employment u n l e s s
and
u n t i l
t h e
t e a c h e r
i s n o t i f i e d
o t h e r w i s e .
I t p r o v i d e s :
"Any
t e a c h e r
i n t h e p u b l i c s c h o o l s , w h e t h e r i n
c o n t i n u i n g
s e r v i c e s t a t u s o r
n o t ,
s h a l l
be
deemed
o f f e r e d r e e m p l o y m e n t f o r t h e s u c c e e d i n g
s c h o o l
y e a r
a t
t h e same
s a l a r y
u n l e s s
t h e
e m p l o y i n g
b o a r d
o f
e d u c a t i o n
s h a l l c a u s e n o t i c e i n w r i t i n g t o be
g i v e n
s a i d t e a c h e r
on
o r b e f o r e
t h e
l a s t
day
o f t h e
t e r m
o f t h e s c h o o l i n w h i c h t h e t e a c h e r i s e m p l o y e d ;
and
s u c h t e a c h e r
s h a l l be p r e s u m e d t o h a v e a c c e p t e d
s u c h
8
1071539
e m p l o y m e n t
u n l e s s
he
o r
she
s h a l l
n o t i f y
t h e
e m p l o y i n g
b o a r d
o f
e d u c a t i o n
i n w r i t i n g t o t h e
c o n t r a r y on o r b e f o r e t h e f i f t e e n t h d a y o f J u n e . The
e m p l o y i n g b o a r d o f e d u c a t i o n
s h a l l n o t c a n c e l t h e
c o n t r a c t
o f
any
t e a c h e r
i n
c o n t i n u i n g
s e r v i c e
s t a t u s ,
n o r c a u s e
n o t i c e
o f n o n e m p l o y m e n t
t o be
g i v e n t o any t e a c h e r
w h e t h e r i n c o n t i n u i n g
s e r v i c e
s t a t u s o r n o t e x c e p t by a v o t e o f a m a j o r i t y o f i t s
members
e v i d e n c e d b y t h e m i n u t e
e n t r i e s o f
s a i d
b o a r d made
p r i o r
t o o r a t t h e t i m e
o f any
s u c h
a c t i o n . "
The
C o u r t o f C i v i l A p p e a l s r u l e d as f o l l o w s :
" I n
t h i s
c a s e ,
i t i s u n d i s p u t e d
t h a t
t h e
[ p l a i n t i f f s ]
f a l l w i t h i n t h e d e f i n i t i o n o f
' t e a c h e r '
as
d e f i n e d by § 1 6 - 2 4 - 1 ,
t h a t
t h e i r
s a l a r i e s were
r e d u c e d b y t h e [BOE's] d e c i s i o n n o t t o renew
t h e i r
s u p p l e m e n t a l e m p l o y m e n t c o n t r a c t s , a n d t h a t t h e y d i d
n o t
r e c e i v e t h e n o t i c e
r e q u i r e d b y § 1 6 - 2 4 - 1 2 . We
c o n c l u d e ,
t h e r e f o r e ,
t h a t t h e t r i a l
c o u r t
e r r e d i n
g r a n t i n g t h e [BOE's] summary-judgment m o t i o n . B a s e d
upon
t h e
f o r e g o i n g ,
we
must
r e v e r s e
t h e
t r i a l
c o u r t ' s summary j u d g m e n t i n f a v o r o f t h e [BOE]
and
remand
t h e c a s e
t o t h e
t r i a l
c o u r t
f o r f u r t h e r
p r o c e e d i n g s c o n s i s t e n t w i t h
t h i s
o p i n i o n . "
Boone,
So. 3d a t
.
The
p a r t i e s
h a v e
p r e s e n t e d
no
a r g u m e n t
t h a t
t h e
p l a i n t i f f s a r e n o t " t e a c h e r s " as d e f i n e d by § 1 6 - 2 4 - 1 , b u t
t h e
BOE
a r g u e s
t h a t
t h e C o u r t o f
C i v i l
A p p e a l s
e r r e d when i t
d e c i d e d
t h a t
m e r e l y
b e c a u s e
t e a c h e r s
were
a p p o i n t e d
t o
s u p p l e m e n t a l p o s i t i o n s , t h e TTA a p p l i e d t o t h e i r a p p o i n t m e n t s
t o t h o s e p o s i t i o n s . The C o u r t o f C i v i l A p p e a l s w r o t e :
"We
r e j e c t
t h e
[BOE's]
c o n t e n t i o n
t h a t
§
9
1071539
16-24-12
o n l y
r e q u i r e s n o t i c e when t h e
t e a c h e r ' s
b a s e
c o m p e n s a t i o n
as a
c l a s s r o o m
i n s t r u c t o r
i s
r e d u c e d .
The p l a i n l a n g u a g e o f § 16-24-12 d o e s n o t
l i m i t
i t s a p p l i c a t i o n
s o l e l y
t o
c o m p e n s a t i o n
d e s i g n a t e d as s a l a r y f o r c l a s s r o o m
i n s t r u c t i o n . The
[BOE]
w o u l d h a v e us r e a d
i n t o t h e s t a t u t e an a d d e d
c o n d i t i o n so t h a t i t w o u l d a p p l y t o ' s a l a r y r e c e i v e d
f o r
c l a s s r o o m
i n s t r u c t i o n
o n l y . ' "
Boone,
So. 3d a t
. The C o u r t o f C i v i l
A p p e a l s
t h e n
c l a r i f i e d i t s h o l d i n g t h a t t h e TTA a p p l i e d t o t h e a p p o i n t m e n t s
t o
s u p p l e m e n t a l
p o s i t i o n s o n l y when t h e i n d i v i d u a l s
a p p o i n t e d
t o
t h o s e p o s i t i o n s were t e a c h e r s , i . e . , p e r s o n s
c e r t i f i e d b y
t h e S t a t e D e p a r t m e n t o f E d u c a t i o n :
"We
c l a r i f y t h a t o u r h o l d i n g i n t h i s c a s e
d o e s
n o t g r a n t t h e p r o t e c t i o n s o f § 16-24-12 t o c o a c h e s
and o t h e r e m p l o y e e s who h o l d s u p p l e m e n t a l
p o s i t i o n s
b u t a r e n o t a l s o t e a c h e r s
w i t h i n t h e m e a n i n g o f §
1 6 - 2 4 - 1 ; n o r does i t
g r a n t t o t e a c h e r s t h e r i g h t t o
t e n u r e as t o s u p p l e m e n t a l
e m p l o y m e n t . We h o l d
o n l y
t h a t when a b o a r d o f e d u c a t i o n e m p l o y s a t e a c h e r i n
a
s u p p l e m e n t a l
p o s i t i o n
f o r a
d e s i g n a t e d
s c h o o l
y e a r , t h e b o a r d must n o t i f y t h e t e a c h e r b e f o r e t h e
end
o f
t h a t
s c h o o l
t e r m
t h a t
t h e
s u p p l e m e n t a l
e m p l o y m e n t
c o n t r a c t
w i l l
n o t be
r e n e w e d
f o r t h e
s u c c e e d i n g
s c h o o l
y e a r
i f t h e t e a c h e r
w i l l
l o s e
s u p p l e m e n t a l
s a l a r y . "
So. 3d a t
.
I n
i t s
a n a l y s i s , t h e C o u r t o f C i v i l
A p p e a l s
r e l i e d on
C a m p b e l l v. T a l l a d e g a C i t y B o a r d o f E d u c a t i o n , 628 So. 2d 842
( A l a .
C i v .
App. 1 9 9 3 ) , t o h o l d t h a t , e v e n t h o u g h i n C a m p b e l l
t h a t c o u r t h e l d t h a t a t e a c h e r w o r k i n g i n an
e x t r a c u r r i c u l a r
10
1071539
c o a c h i n g
p o s i t i o n was
n o t
c o v e r e d
by
t h e
TTA,
t h e
f a c t
t h a t
t h e two t e a c h e r s
i n C a m p b e l l had b e e n p r o p e r l y n o t i f i e d
b e f o r e
t h e
l a s t
day
o f
t h e
s c h o o l
y e a r
i n f e r r e d
an
e n t i t l e m e n t
t o
s u c h n o t i f i c a t i o n -- and,
t h e r e f o r e , t o t h e p r o t e c t i o n o f
t h e
TTA
--
f o r
t e a c h e r s
w o r k i n g
i n
e x t r a c u r r i c u l a r
c o a c h i n g
p o s i t i o n s .
The
C o u r t o f
C i v i l A p p e a l s
s t a t e d :
" [ T ] h i s c o u r t has
i n d i c a t e d t h a t § 16-24-12 a p p l i e s
when
a
t e a c h e r
l o s e s
s u p p l e m e n t a l
s a l a r y .
I n
C a m p b e l l v.
T a l l a d e g a
C i t y B o a r d o f E d u c a t i o n ,
62 8
So.
2d
842
( A l a .
C i v .
App.
1
9 9 3 ) ,
two
t e a c h e r s ,
C a m p b e l l and M o r g a n , s u f f e r e d a r e d u c t i o n i n s a l a r y
a f t e r t h e i r s u p p l e m e n t a l c o a c h i n g
c o n t r a c t s were
n o t
r e n e w e d ;
t h e y
b r o u g h t
s u i t
a g a i n s t
t h e
T a l l a d e g a
B o a r d o f E d u c a t i o n ,
r e q u e s t i n g
t h e
c o u r t
t o
d i r e c t
t h e
T a l l a d e g a
B o a r d
o f
E d u c a t i o n
t o
h o n o r
t h e i r
c o a c h i n g
c o n t r a c t s o r t o g r a n t them a h e a r i n g .
628
So.
2d
a t
843.
The
t r i a l
c o u r t
c o n c l u d e d
t h a t
t h e
t e a c h e r s '
' s u p p l e m e n t a l c o a c h i n g
p o s i t i o n s were
n o t
p r o t e c t e d
by
t h e
A l a b a m a
T e a c h e r
T e n u r e
A c t '
and
t h a t
' n o t i c e was
p r o p e r l y g i v e n and t h a t t h e
e n s u i n g
r e d u c t i o n
i n s a l a r i e s
was
a p p r o p r i a t e . '
628
So.
2d
a t
843.
I n
a f f i r m i n g t h e
t r i a l
c o u r t ' s
j u d g m e n t ,
t h i s
c o u r t
s t a t e d :
"'A
t e a c h e r ' s
e x t r a - c u r r i c u l a r
p o s i t i o n as a c o a c h i s n o t
e n t i t l e d t o
t h e
p r o t e c t i o n
o f
t h e A l a b a m a T e a c h e r
T e n u r e
A c t .
B r y a n
v.
A l a b a m a
S t a t e
T e n u r e
C o m m i s s i o n ,
472
So.
2d
1052
( A l a .
1 9 8 5 ) .
C a m p b e l l and Morgan were p r o p e r l y
n o t i f i e d
b e f o r e
t h e
l a s t
day
o f t h e 1991-92
s c h o o l
y e a r t h a t t h e i r c o a c h i n g p o s i t i o n s w o u l d be
n o n - r e n e w e d
f o r
t h e
f o l l o w i n g y e a r .
Code
1975,
§ 1 6 - 2 4 - 1 2 . They were n o t e n t i t l e d
t o
a h e a r i n g . B r y a n . We
f i n d no e r r o r . '
11
1071539
" I d .
( e m p h a s i s a d d e d [ i n B o o n e ] ) . "
Boone,
So. 3d a t
.
The p a s s a g e f r o m C a m p b e l l
q u o t e d by t h e C o u r t o f
C i v i l
A p p e a l s i s p r o b l e m a t i c i n t h a t i t j u x t a p o s e s t h e
c o n c l u s i o n
t h a t t h e e x t r a c u r r i c u l a r c o a c h i n g p o s i t i o n s were n o t s u b j e c t
t o
t h e p r o t e c t i o n o f t h e TTA w i t h a s t a t e m e n t -- i m m e d i a t e l y
f o l l o w i n g -- t h a t t h e b o a r d
" p r o p e r l y
n o t i f i e d " t h e
c o a c h e s
t h a t
t h e i r p o s i t i o n s w o u l d be o f n o n r e n e w e d , c i t i n g § 16-24¬
12, a s t a t u t e c o n t a i n e d i n t h e TTA. The s t a t e m e n t i n C a m p b e l l
a b o u t t h e p r o p r i e t y o f t h e n o t i f i c a t i o n o f n o n r e n e w a l ,
c i t i n g
A l a .
Code 1975, § 1 6 - 2 4 - 1 2 , i s a non s e q u i t u r , a p p e a r i n g o n l y
i n
d i c t a .
A c c o r d i n g l y ,
t h e
o p i n i o n
o f t h e C o u r t
o f
C i v i l
A p p e a l s i n t h i s c a s e i s i n e r r o r t o t h e e x t e n t i t r e l i e s
on
e r r o n e o u s
d i c t a i n C a m p b e l l .
The C o u r t o f C i v i l A p p e a l s
a l s o
c i t e d D a v i s v.
R u s s e l l ,
852 So. 2d 774
( A l a .
C i v . App. 2 0 0 2 ) , i n w h i c h t h e C o u r t o f
C i v i l
A p p e a l s
r e l i e d
on an o p i n i o n o f t h e a t t o r n e y g e n e r a l
(Op. A t t ' y Gen. No. 2000-176) i n t e r p r e t i n g C a m p b e l l , s u p r a , as
r e q u i r i n g
" ' n o t i c e b y t h e l a s t day o f t h e s c h o o l y e a r i f t h e
n o n r e n e w a l o r m o d i f i c a t i o n o f c o a c h i n g d u t i e s
w i l l
r e s u l t i n
a s a l a r y r e d u c t i o n . ' " Boone,
So. 3d a t
( q u o t i n g D a v i s ,
12
1071539
852
So. 2d a t 7 7 7 ) . We
f i n d t h e h o l d i n g i n D a v i s t o be
f l a w e d
by i t s r e l i a n c e on an o p i n i o n o f t h e a t t o r n e y g e n e r a l t h a t
was
i t s e l f b a s e d on e r r o n e o u s
d i c t a i n
C a m p b e l l .
B e c a u s e t h e c a s e s
r e l i e d on by t h e C o u r t o f C i v i l
A p p e a l s
do n o t
s u p p o r t
i t s h o l d i n g i n t h i s
c a s e ,
i t i s n e c e s s a r y
t o
b e g i n w i t h a c o n s t r u c t i o n o f t h e a p p l i c a b l e s t a t u t e .
I n i t s
o p i n i o n , t h e C o u r t o f C i v i l A p p e a l s c o n s t r u e d § 1 6 - 2 4 - 1 2 , A l a .
Code
1975,
and
f o c u s e d
on
t h e
r e d u c t i o n
i n
s a l a r y
t h a t
r e s u l t e d
f r o m
t h e
p l a i n t i f f s '
n o t
b e i n g
r e a p p o i n t e d
t o
t h e
s u p p l e m e n t a l
p o s i t i o n s :
" S e c t i o n
16-24-12
p l a i n l y
s t a t e s
t h a t
' t e a c h e r s , '
as
t h a t t e r m
i s d e f i n e d by
§
1 6 - 2 4 - 1 ,
s h a l l
be
deemed
o f f e r e d
r e e m p l o y m e n t
f o r
t h e
s u c c e e d i n g
s c h o o l y e a r
a t t h e 'same s a l a r y '
u n l e s s
n o t i f i e d
o t h e r w i s e
by
t h e
e m p l o y i n g
b o a r d
o f
e d u c a t i o n
b e f o r e
t h e
end
o f
t h e
s c h o o l
t e r m
f o r
w h i c h
t h e y a r e e m p l o y e d . I t i s u n d i s p u t e d
t h a t
t h e
a p p e l l a n t s a r e a l l t e a c h e r s w i t h i n t h e m e a n i n g o f §
1 6 - 2 4 - 1 .
' S a l a r y , '
o f
c o u r s e ,
r e f e r s
t o
' c o m p e n s a t i o n p a i d r e g u l a r l y f o r s e r v i c e s '
r e n d e r e d .
M e r r i a m - W e b s t e r ' s
C o l l e g i a t e
D i c t i o n a r y 1097
( 1 1 t h
e d . 2 0 0 3 ) . Thus, by t h e p l a i n l a n g u a g e o f § 16-24-12
a
t e a c h e r
e m p l o y e d
by
a
s c h o o l
b o a r d
f o r
a
p a r t i c u l a r
s c h o o l y e a r
i s deemed o f f e r e d w o r k
f o r
t h e
n e x t
s c h o o l
y e a r
f o r
t h e
same
amount
o f
c o m p e n s a t i o n u n l e s s t h e b o a r d
n o t i f i e s
t h e
t e a c h e r
o t h e r w i s e b e f o r e t h e end o f t h e s c h o o l t e r m
c o v e r e d
by
t h e
i n i t i a l
c o n t r a c t u a l p e r i o d . T h i s r e a d i n g i s
c o n s i s t e n t w i t h t h e c o u r t ' s s t a t e m e n t s
i n C a m p b e l l
[v.
T a l l a d e g a
C i t y
B o a r d
o f E d u c a t i o n ,
682
So.
2d
842
( A l a . C i v . App.
1
9 9 3 ) , ] and
D a v i s
[ v .
R u s s e l l ,
852
So.
2d 774
( A l a . C i v . App.
2 0 0 2 ) ] .
13
1071539
"We
r e j e c t
t h e
[BOE's]
c o n t e n t i o n
t h a t
§
16-24-12
o n l y
r e q u i r e s
n o t i c e when
t h e
t e a c h e r ' s
b a s e
c o m p e n s a t i o n
as
a
c l a s s r o o m
i n s t r u c t o r
i s
r e d u c e d .
The
p l a i n l a n g u a g e o f
§ 16-24-12 d o e s
n o t
l i m i t
i t s
a p p l i c a t i o n
s o l e l y
t o
c o m p e n s a t i o n
d e s i g n a t e d
as s a l a r y f o r c l a s s r o o m
i n s t r u c t i o n .
The
[BOE]
w o u l d have us
r e a d
i n t o t h e
s t a t u t e an
a d d e d
c o n d i t i o n so t h a t i t w o u l d a p p l y t o ' s a l a r y r e c e i v e d
f o r c l a s s r o o m
i n s t r u c t i o n o n l y . ' However,
" ' [ o ] u r
supreme
c o u r t
has
e x p l a i n e d
t h a t
t h e r o l e o f t h e a p p e l l a t e c o u r t s " i s n o t
t o
d i s p l a c e
t h e
l e g i s l a t u r e
by
a m e n d i n g
s t a t u t e s t o make them e x p r e s s what we
t h i n k
t h e l e g i s l a t u r e s h o u l d have done. Nor
i s i t
[ t h e a p p e l l a t e c o u r t ' s ]
r o l e t o assume
t h e
l e g i s l a t i v e
p r e r o g a t i v e
t o
c o r r e c t
d e f e c t i v e
l e g i s l a t i o n
o r amend s t a t u t e s . "
S i e g e l m a n
v.
Chase M a n h a t t a n Bank
(USA),
N a t ' l A s s ' n ,
575
So.
2d
1041,
1051
( A l a .
1 9 9 1 ) . "When d e t e r m i n i n g
l e g i s l a t i v e i n t e n t
f r o m
t h e
l a n g u a g e
u s e d
i n
a
s t a t u t e ,
a
c o u r t
may
e x p l a i n t h e l a n g u a g e b u t
i t
may
n o t
d e t r a c t f r o m o r add
t o t h e
s t a t u t e
C o u r t s may
n o t
i m p r o v e a s t a t u t e , b u t
may
o n l y e x p o u n d
i t . "
S i e g e l m a n , 575
So.
2d
a t
1045.'
"Saad's H e a l t h c a r e
S e r v i c e s , I n c . v. M e i n h a r d t ,
[Ms.
2 0 6 0 3 0 2 , S e p t .
28,
2007]
So.
3d
,
( A l a .
C i v . App.
2 0 0 7 ) .
"We
c l a r i f y
t h a t o u r
h o l d i n g
i n t h i s c a s e d o e s
n o t
g r a n t
t h e
p r o t e c t i o n s
o f
§ 16-24-12 t o
c o a c h e s
and
o t h e r e m p l o y e e s who
h o l d s u p p l e m e n t a l p o s i t i o n s
b u t
a r e
n o t
a l s o
t e a c h e r s
w i t h i n
t h e m e a n i n g
o f
§
1 6 - 2 4 - 1 ; n o r does i t g r a n t
t o t e a c h e r s
t h e
r i g h t
t o
t e n u r e
as
t o s u p p l e m e n t a l e m p l o y m e n t . We
h o l d
o n l y
t h a t when a b o a r d o f e d u c a t i o n
e m p l o y s a t e a c h e r
i n
a
s u p p l e m e n t a l
p o s i t i o n
f o r
a
d e s i g n a t e d
s c h o o l
y e a r ,
t h e b o a r d must n o t i f y
t h e
t e a c h e r
b e f o r e
t h e
end
o f
t h a t
s c h o o l
t e r m
t h a t
t h e
s u p p l e m e n t a l
14
1071539
e m p l o y m e n t
c o n t r a c t
w i l l
n o t be
r e n e w e d
f o r t h e
s u c c e e d i n g
s c h o o l
y e a r
i f t h e
t e a c h e r
w i l l
l o s e
s u p p l e m e n t a l s a l a r y . "
Boone,
So. 3d a t
.
We d i s a g r e e .
" S a l a r y , " a t e r m u s e d i n § 1 6 - 2 4 - 1 2 , i s n o t
d e f i n e d
by t h e TTA.
" T e a c h e r , "
as u s e d i n § 1 6 - 2 4 - 1 2 , i s
d e f i n e d i n § 16-24-1 as " p e r s o n s r e g u l a r l y c e r t i f i e d by t h e
t e a c h e r
c e r t i f i c a t i n g
a u t h o r i t y o f t h e S t a t e o f A l a b a m a
who
may be e m p l o y e d as i n s t r u c t o r s , p r i n c i p a l s o r s u p e r v i s o r s i n
t h e p u b l i c e l e m e n t a r y s c h o o l s and h i g h s c h o o l s o f t h e S t a t e o f
A l a b a m a
" When we s u b s t i t u t e t h i s
d e f i n i t i o n f o r t h e w o r d
" t e a c h e r "
i n § 1 6 - 2 4 - 1 2 , t h e s t a t u t e w o u l d t h e n
r e a d :
"Any
[ p e r s o n
r e g u l a r l y
c e r t i f i e d
by
t h e
t e a c h e r
c e r t i f i c a t i n g
a u t h o r i t y o f t h e S t a t e o f A l a b a m a
who
may
be
e m p l o y e d
as
an
i n s t r u c t o r ,
p r i n c i p a l
o r
s u p e r v i s o r ]
i n
t h e
p u b l i c
s c h o o l s ,
w h e t h e r
i n
c o n t i n u i n g
s e r v i c e
s t a t u s o r n o t , s h a l l
be deemed
o f f e r e d r e e m p l o y m e n t f o r t h e s u c c e e d i n g s c h o o l
y e a r
a t t h e same s a l a r y
"
B e c a u s e
a c o a c h ,
a
f o o t b a l l
w o r k e r ,
o r a s u p p o r t - a c t i v i t y
s p o n s o r i s n o t c e r t i f i e d by t h e c e r t i f i c a t i n g
a u t h o r i t y o f t h e
S t a t e
o f A l a b a m a t o p e r f o r m t h e d u t i e s o f an i n s t r u c t o r , a
p r i n c i p a l ,
o r
a
s u p e r v i s o r ,
we
c a n n o t
a f f o r d
a
t e a c h e r
p e r f o r m i n g
s u p p l e m e n t a l
d u t i e s
i n d e p e n d e n t
o f h i s o r h e r
t e a c h i n g
f u n c t i o n
t h e
p r o t e c t i o n s
o f
§
16-24-12
w i t h o u t
15
1071539
r e w r i t i n g t h e d e f i n i t i o n o f " t e a c h e r . "
C o n c l u s i o n
The
d e c i s i o n
o f t h e C o u r t
o f
C i v i l
A p p e a l s
t h a t t h e
n o t i f i c a t i o n r e q u i r e m e n t s o f § 1 6 - 2 4 - 1 2 , A l a .
Code 1975, a p p l y
t o
a
t e a c h e r
p e r f o r m i n g
d u t i e s
i n d e p e n d e n t
o f
t e a c h i n g
f u n c t i o n s u n d e r a s u p p l e m e n t a l c o n t r a c t i m p e r m i s s i b l y e x p a n d s
t h e r e a c h o f t h e TTA. A c c o r d i n g l y , t h a t c o u r t ' s j u d g m e n t i s
r e v e r s e d and t h e c a s e remanded t o t h a t c o u r t f o r p r o c e e d i n g s
c o n s i s t e n t w i t h t h i s
o p i n i o n .
REVERSED AND REMANDED.
Cobb, C . J . , and L y o n s , W o o d a l l ,
S t u a r t , S m i t h , M u r d o c k ,
and Shaw, J J . , c o n c u r .
B o l i n , J . , c o n c u r s i n t h e r e s u l t .
16 | November 6, 2009 |
80e82cf7-8eff-4dca-8725-85eb2ff4d977 | LPP Mortgage, Ltd. v. Emmitt H. Boutwell, Sr., et al. | N/A | 1080265 | Alabama | Alabama Supreme Court | Rel 10/23/2009
Notice: T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e
advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e Reporter of
Decisions,
Alabama
A p p e l l a t e
C o u r t s ,
300 D e x t e r Avenue, Montgomery, Alabama 36104-3741
((334)
2 2 9 - 0 6 4 9 ) , o f
any t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may be made
b e f o r e t h e
o p i n i o n i s p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1080265
LPP Mortgage,
L t d .
v.
Emmitt H. B o u t w e l l , S r . ,
e t
a l .
Appeal from Pike C i r c u i t
Court
(CV-05-232)
COBB, C h i e f
J u s t i c e .
The
f a c t s
u n d e r l y i n g
t h i s
a p p e a l
a r e as
f o l l o w s .
B o u t w e l l Lumber Company, I n c . , e x e c u t e d a n o t e i n
t h e amount
o f $750,000 t o
I T T
S m a l l B u s i n e s s
F i n a n c e
C o r p o r a t i o n
("ITT")
on
A p r i l 15, 1 9 9 1 ; t h e
n o t e was s e c u r e d b y a m o r t g a g e . The
1080265
t r a n s a c t i o n
was
e x e c u t e d t h r o u g h
t h e
o f f i c e s
o f
t h e
U n i t e d
S t a t e s
S m a l l
B u s i n e s s
A d m i n i s t r a t i o n
("SBA").
1
E m m i t t
H.
B o u t w e l l ,
S r . , a n d
h i s w i f e J a m i e P.
B o u t w e l l ,
a n d E m m i t t
H.
B o u t w e l l ,
J r . , a n d
h i s w i f e
C i n d y
S.
B o u t w e l l
( h e r e i n a f t e r
r e f e r r e d
t o
c o l l e c t i v e l y
as
" t h e
d e f e n d a n t s " )
e x e c u t e d
g u a r a n t y a g r e e m e n t s f u n d e d b y
t h e
SBA
t o ITT
p r o v i d i n g
t h a t
t h e y w o u l d p a y t h e
l i a b i l i t i e s
a r i s i n g f r o m any d e f a u l t on
t h e
n o t e by B o u t w e l l Lumber Company.
ITT
l a t e r a s s i g n e d
t h e
two
g u a r a n t i e s
t o F a r m e r s E x c h a n g e Bank, w h i c h , on J u n e 14,
1994,
a s s i g n e d them t o t h e
SBA.
I n
1995,
B o u t w e l l
Lumber
d e f a u l t e d
on
t h e
n o t e
a n d
d e c l a r e d b a n k r u p t c y .
A p o r t i o n o f t h e o u t s t a n d i n g
p r i n c i p a l
o f
t h e
n o t e
was
p a i d
b y
t h e
s a l e
o f
t h e
f a c i l i t i e s
a n d
e q u i p m e n t o f B o u t w e l l Lumber,
b u t d e b t i n e x c e s s o f $680,000
r e m a i n e d .
I n
1996,
t h e
SBA
b e g a n
c o m m u n i c a t i o n s
and
c o r r e s p o n d e n c e w i t h t h e d e f e n d a n t s t o s e t t l e
t h e
o u t s t a n d i n g
d e b t ,
a n d
t h e
SBA
a g r e e d
t o
f o r b e a r
t h e
p u r s u i t
o f
i t s
r e m e d i e s on t h e n o t e d u r i n g t h e s e t t l e m e n t
n e g o t i a t i o n s .
By
O c t o b e r
1998,
t h e
SBA
h a d
o f f e r e d t o
r e l e a s e
f r o m
p e r s o n a l
1The
n o t e
and
g u a r a n t i e s
d i s p l a y "U.S.
S m a l l
B u s i n e s s
A d m i n i s t r a t i o n " i n t h e i r h e a d i n g s w i t h a t e x t b o x s h o w i n g
"SBA
L o a n number
[ o m i t t e d ] . "
2
1080265
l i a b i l i t y
Mr.
a n d M r s .
B o u t w e l l ,
S r . , f o r $ 6 0 , 0 0 0 , a n d t o
r e l e a s e f r o m p e r s o n a l
l i a b i l i t y Mr. a n d M r s . B o u t w e l l , J r . ,
f o r $ 1 5 , 0 0 0 .
On F e b r u a r y 19, 1999, t h e SBA s e n t Mr. a n d M r s .
B o u t w e l l , J r . ,
a l e t t e r t h a t s t a t e d , i n p e r t i n e n t p a r t :
" A n o t h e r
f i v e
(5) months h a v e p a s s e d a n d we
s t i l l
h a v e
n o t
r e c e i v e d
a n y
i n f o r m a t i o n
f r o m
y o u
c o n c e r n i n g a p a y m e n t p l a n t o h a v e y o u r r e s i d e n c e a n d
g u a r a n t y / l i a b i l i t y
r e l e a s e d f r o m S B A ' s m o r t g a g e a n d
N o t e .
"Our
l a s t
l e t t e r a d d r e s s e d t o y o u d a t e d
O c t o b e r 1,
1998, d i d n o t p r o d u c e any
p l a n
o r
c o r r e s p o n d e n c e
f r o m y o u .
" I t h a s become m a n d a t o r y t h a t we
t a k e some k i n d o f
a c t i o n t o r e c o v e r
t h i s
d e b t .
" I f
we
h a v e
n o t
r e c e i v e d
a
w r i t t e n
p l a n
f o r
r e p a y m e n t
o f
t h e
recommended
s e t t l e m e n t
o f
$15,000.00
b y M a r c h 1, 1999, we must
e x e r c i s e o u r
o p t i o n s t o l i q u i d a t e
t h e r e m a i n i n g
c o l l a t e r a l . "
On
t h a t same d a t e
t h e SBA
s e n t
a
l e t t e r
t o Mr.
a n d M r s .
B o u t w e l l , S r . , t h a t was
i d e n t i c a l i n a l l r e s p e c t s e x c e p t t h a t
t h e s e t t l e m e n t amount r e f l e c t e d
was $ 6 0 , 0 0 0 .
B e f o r e
t h e e n d
o f F e b r u a r y 1999, t h e d e f e n d a n t s o f f e r e d p a y m e n t p l a n s f o r t h e
s e t t l e m e n t o f t h e d e b t ; t h e s e n i o r B o u t w e l l s p r o p o s e d t o p a y
$200 m o n t h l y a n d t h e j u n i o r
B o u t w e l l s
p r o p o s e d t o p a y
$250
m o n t h l y .
The r e c o r d d o e s n o t r e f l e c t
t h a t t h e SBA t o o k a n y
f u r t h e r
a c t i o n a g a i n s t t h e d e f e n d a n t s .
I n A u g u s t 2 0 0 0 , t h e
3
1080265
SBA
s o l d t h e l o a n i n s t r u m e n t s
t o L P P M o r t g a g e , L t d .
( " L P P " ) ,
a n d
L P P
s u b s e q u e n t l y
c o n t a c t e d
t h e
d e f e n d a n t s
i n May
2001
c o n c e r n i n g
t h e i r
o b l i g a t i o n s .
The
r e c o r d shows
t h a t
t h e
d e f e n d a n t s
made some p a y m e n t s
on
t h e i r
r e s p e c t i v e p a y m e n t
p l a n s i n 2001
a n d e a r l y 2 0 0 2 , b u t no p a y m e n t e x c e e d e d $15
a n d
m o s t
p a y m e n t s
w e r e
i n
t h e
amount
o f
$1.
T h e r e
i s
no
i n d i c a t i o n t h a t t h e p r o p o s e d s e t t l e m e n t amounts w e r e e v e r p a i d
i n
f u l l .
On
A p r i l
2 9 ,
2 0 0 5 ,
LPP
s e n t
l e t t e r s
t o
t h e
d e f e n d a n t s
d e m a n d i n g p a y m e n t , p u r s u a n t
t o t h e i r
o r i g i n a l g u a r a n t i e s ,
o f
t h e
o u t s t a n d i n g
d e b t
a n d
i n t e r e s t
i n
an
amount
o f
o v e r
$ 1 , 0 0 0 , 0 0 0 .
On
A u g u s t
5,
2 0 0 5 ,
LPP
s u e d
t h e
d e f e n d a n t s
s e e k i n g e n f o r c e m e n t o f t h e g u a r a n t i e s .
The
m a t t e r
was
t r i e d
b e f o r e
t h e
t r i a l
c o u r t w i t h o u t
a j u r y
on May
2 9 , 2 0 0 8 ,
a n d
e v i d e n c e was
p r e s e n t e d o r e t e n u s .
The
t r i a l c o u r t i s s u e d i t s
j u d g m e n t on J u n e 12, 2 0 0 8 .
I n p e r t i n e n t p a r t , t h a t j u d g m e n t
s t a t e s :
" B o t h C o u n t One
a n d C o u n t Two
o f t h e
C o m p l a i n t
s e e k t o e n f o r c e
t h e G u a r a n t y A g r e e m e n t s . No
i s s u e ,
o t h e r t h a n t h a t i n v o l v i n g t h e G u a r a n t i e s ,
i s b e f o r e
t h e
C o u r t .
"The
C o u r t
f u r t h e r f i n d s
t h a t t h e g u a r a n t y
b y
t h e D e f e n d a n t s was
s p e c i f i c
t o
ITT
S m a l l
B u s i n e s s
F i n a n c e
C o r p o r a t i o n ,
i t s s u c c e s s o r s
a n d
a s s i g n s .
4
1080265
S u c h g u a r a n t y ,
as
r e f l e c t e d
i n
[ L P P ' s ]
E x h i b i t s
6
a n d
7,
was
i n d e e d
a s s i g n e d b y
ITT
S m a l l
B u s i n e s s
C o r p o r a t i o n
t o
F a r m e r s
E x c h a n g e
Bank.
The
G u a r a n t i e s ,
as
r e f l e c t e d
on
t h e
f a c e
o f
s a i d
E x h i b i t s 4 a n d
5, w e r e a g a i n a s s i g n e d . The
s e c o n d
a s s i g n m e n t
was
a c c o m p l i s h e d
b y
way
o f
an
e n d o r s e m e n t ,
on
t h e
f a c e o f t h e
i n s t r u m e n t s ,
f r o m
F a r m e r s
E x c h a n g e
B a n k
t o
S m a l l
B u s i n e s s
A d m i n i s t r a t i o n .
H o w e v e r ,
no
f u r t h e r
a s s i g n m e n t ,
t r a n s f e r
o r
e n d o r s e m e n t
o f
t h e
G u a r a n t i e s
was
o f f e r e d i n t o
e v i d e n c e .
" T h e r e f o r e ,
on
i t s f a c e , i t a p p e a r s
t h a t
t h e
named
P l a i n t i f f ,
LPP M o r t g a g e , L t d . , l a c k s
p r i v i t y
t o t h e G u a r a n t i e s as t o t h e named
D e f e n d a n t s .
"The C o u r t f u r t h e r f i n d s t h a t a t l e a s t as
e a r l y
as
F e b r u a r y
19,
1999,
i f n o t
e a r l i e r ,
t h e
S m a l l
B u s i n e s s
A d m i n i s t r a t i o n , who
t h e n
h e l d
t h e
n o t e ,
c o m m u n i c a t e d
t o
t h e
D e f e n d a n t s
r e g a r d i n g
t h e i r
o b l i g a t i o n p u r s u a n t t o t h e G u a r a n t i e s .
" [ L P P ' s ]
E x h i b i t s 30
a n d 31
e v i d e n c e
t h a t t h e
S m a l l
B u s i n e s s
A d m i n i s t r a t i o n
d e l i v e r e d
t o
D e f e n d a n t s
a demand a n d
u l t i m a t u m
t o p e r f o r m
t h e
o b l i g a t i o n s
o f
t h e G u a r a n t i e s .
The
S m a l l
B u s i n e s s
A d m i n i s t r a t i o n ' s u s e o f t h e t e r m s ' m a n d a t o r y t h a t we
t a k e some k i n d o f a c t i o n ' a n d
'we must e x e r c i s e o u r
o p t i o n s ' make i t c l e a r t h a t s u c h c o m m u n i c a t i o n
c o u l d
h a v e b e e n f o r no o t h e r l o g i c a l p u r p o s e
t h a n t o
c a l l
u p o n
d e f e n d a n t s
f o r p e r f o r m a n c e
o f
t h e
G u a r a n t y
o b l i g a t i o n s .
"The G u a r a n t i e s a r e s i m p l e c o n t r a c t s , n o t u n d e r
s e a l ,
a n d a r e t h e r e f o r e g o v e r n e d
b y § 6-2-34, Code
o f A l a b a m a , 1975,
as t o t h e s t a t u t e o f
l i m i t a t i o n s .
S u c h s t a t u t e
l i m i t s
a c t i o n s t o commence w i t h i n s i x
y e a r s o f
a c c r u a l .
" D e f e n d a n t s '
o b l i g a t i o n s t o p e r f o r m a r o s e when
t h e n o t e w e n t i n t o d e f a u l t .
H o w e v e r , t h e a c t i o n
on
s u c h o b l i g a t i o n w o u l d n o t h a v e a c c r u e d , f o r p u r p o s e s
5
1080265
o f t h e s t a t u t e o f l i m i t a t i o n s ,
u n t i l
s u c h
t i m e as
t h e L e n d e r , o b l i g e e o f t h e G u a r a n t i e s , made w r i t t e n
demand. S u c h demand was made a t l e a s t as e a r l y a s
F e b r u a r y
19, 1999 as r e f l e c t e d i n [ L P P ' s ]
E x h i b i t s
30 a n d 3 1 . ( S u c h
demand, a n d a c t i o n a c c r u a l , may
h a v e commenced e v e n
e a r l i e r when r e v i e w i n g
[ L P P ' s ]
E x h i b i t s 2 4 , 2 5 , 2 6 , 2 7 , 2 8 a n d 2 9 . )
Thus, t h e
L e n d e r became t i m e - b a r r e d t o commence an a c t i o n on
t h e G u a r a n t y s u b s e q u e n t t o F e b r u a r y
19, 2 0 0 5 .
T h i s
a c t i o n was
f i l e d
a l m o s t s i x
m o n t h s l a t e r on A u g u s t
5, 2 0 0 5 .
A c c o r d i n g l y , e v e n i f [LPP] i s c o n s t r u e d t o
h a v e s t a n d i n g t o b r i n g t h e a c t i o n , t h e a c t i o n was
t i m e - b a r r e d .
" T h e r e f o r e ,
on i t s f a c e , i t a p p e a r s
t h a t t h e
named
P l a i n t i f f , LPP M o r t g a g e , L t d . ,
l a c k s
p r i v i t y
a n d s t a n d i n g t o b r i n g t h e a c t i o n . F u r t h e r m o r e ,
e v e n
i f
[LPP] i s c o n s t r u e d t o h a v e s t a n d i n g t o b r i n g t h e
a c t i o n , t h e same was t i m e - b a r r e d . The C o u r t
r e a c h i n g
t h e s e
c o n c l u s i o n s
d o e s n o t
f i n d
i t n e c e s s a r y
t o
a d d r e s s t h e o t h e r i s s u e s a n d d e f e n s e s
r a i s e d i n t h i s
m a t t e r . "
LPP
a p p e a l e d ,
a r g u i n g t h a t t h e t r i a l
c o u r t e r r e d ( 1 )
i n
d e t e r m i n i n g
t h a t t h e g u a r a n t i e s h a d n o t b e e n a s s i g n e d t o
i t
a n d ( 2 ) i n f i n d i n g
t h a t L P P ' s a c t i o n on t h e g u a r a n t i e s was
b a r r e d b y t h e s t a t u t e o f
l i m i t a t i o n s .
Our
s t a n d a r d o f r e v i e w i s w e l l
s e t t l e d :
" ' I n
r e v i e w i n g a t r i a l c o u r t ' s f i n d i n g s o f f a c t
b a s e d on o r e t e n u s
e v i d e n c e ,
t h i s
C o u r t
p r e s u m e s
t h o s e f i n d i n g s t o be c o r r e c t . ' H e n s l e y v. P o o l e , 910
So.
2d 96, 100
( A l a . 2 0 0 5 ) .
' N e v e r t h e l e s s ,
t h i s
p r i n c i p l e
i s n o t a p p l i c a b l e where t h e e v i d e n c e i s
u n d i s p u t e d ,
o r
where
t h e
m a t e r i a l
f a c t s
a r e
e s t a b l i s h e d b y t h e u n d i s p u t e d
e v i d e n c e . '
S a l t e r v .
H a m i t e r ,
887 So. 2d 230, 234
( A l a . 2 0 0 4 ) ; s e e a l s o
K e r s h a w v. K e r s h a w , 848 So. 2d 942, 949 ( A l a . 2 0 0 2 ) .
6
1080265
F u r t h e r m o r e ,
'on a p p e a l , t h e r u l i n g on a q u e s t i o n o f
l a w c a r r i e s no p r e s u m p t i o n
o f c o r r e c t n e s s , and
t h i s
C o u r t ' s r e v i e w i s de n o v o . ' Ex p a r t e Graham, 702
So.
2d 1215,
1221
( A l a .
1 9 9 7 ) . "
L u c k y
J a c k s
E n t m ' t
C t r . , LLC
v.
J o p a t
B l d g .
C o r p . ,
[Ms.
1071648, J u l y 10, 2009]
So.
3d
,
( A l a . 2 0 0 9 ) .
I n i t i a l l y ,
we
c o n s i d e r
w h e t h e r
t h e
t r i a l
c o u r t ' s
d e t e r m i n a t i o n
t h a t no a s s i g n m e n t o f t h e g u a r a n t i e s was made
f r o m
t h e
SBA
t o LPP
so
t h a t LPP
has
no
c o n t r a c t u a l p r i v i t y
w i t h t h e d e f e n d a n t s upon w h i c h t o b a s e i t s c l a i m s .
The
r e c o r d
shows
t h a t
t h e
g u a r a n t i e s
were
a s s i g n e d
by
s e p a r a t e
i n s t r u m e n t s
f r o m
ITT
t o F a r m e r s E x c h a n g e Bank and
t h a t
t h e
s e c o n d
a s s i g n m e n t f r o m F a r m e r s E x c h a n g e Bank t o t h e SBA
was
e f f e c t u a t e d
by
an
e n d o r s e m e n t
a p p e a r i n g
on
t h e
o r i g i n a l
g u a r a n t i e s .
However, when i t d e l i v e r e d t h e l o a n
i n s t r u m e n t s
t o
LPP,
t h e
SBA
d i d n o t make a s e p a r a t e
a s s i g n m e n t
o f
t h e
g u a r a n t i e s t o LPP.
The
SBA d i d , h o w e v e r , s p e c i f i c a l l y a s s i g n
t h e
n o t e
and
t h e
m o r t g a g e
s e c u r i n g
t h e
n o t e ,
and
i t d i d
d e l i v e r t h e g u a r a n t i e s t o LPP. The m o r t g a g e a s s i g n m e n t
s t a t e s ,
i n p e r t i n e n t p a r t :
T o g e t h e r
w i t h
s u c h
o t h e r
d o c u m e n t s ,
a g r e e m e n t s ,
i n s t r u m e n t s
a n d
o t h e r
c o l l a t e r a l
t h a t
e v i d e n c e ,
s e c u r e
o r
o t h e r w i s e
r e l a t e
t o
A s s i g n o r ' s
r i g h t ,
t i t l e
o r i n t e r e s t i n a n d t o t h e M o r t g a g e a n d / o r
t h e
N o t e ,
i n c l u d i n g
w i t h o u t
l i m i t a t i o n
t h e
t i t l e
7
1080265
i n s u r a n c e
p o l i c i e s
a n d h a z a r d
i n s u r a n c e
p o l i c i e s
t h a t m i g h t p r e s e n t l y be i n e f f e c t . "
The d e f e n d a n t s c o n t e n d , w i t h o u t c i t a t i o n t o l e g a l
a u t h o r i t y ,
t h a t t h e t r i a l c o u r t c o r r e c t l y d e t e r m i n e d t h a t t h e a b s e n c e o f
an
e x p l i c i t
a s s i g n m e n t
o f
t h e i r
g u a r a n t i e s means
t h a t
LPP
c a n n o t a s s e r t any c l a i m s w i t h r e s p e c t t o t h e g u a r a n t i e s .
LPP
a r g u e s
t h a t
t h e
a b o v e - q u o t e d
l a n g u a g e
f r o m
t h e
m o r t g a g e a s s i g n m e n t i s s u f f i c i e n t t o e f f e c t t h e a s s i g n m e n t o f
t h e
g u a r a n t i e s
u n d e r
t h e
g e n e r a l
l a w
o f
a s s i g n m e n t s
r e c o g n i z e d i n A l a b a m a .
" T h e r e a r e no f o r m a l r e q u i r e m e n t s f o r
an a s s i g n m e n t ,
a n d
'an
a s s i g n m e n t
may
be
w r i t t e n ,
p a r o l ,
o r
o t h e r w i s e . '
B a k e r v. E u f a u l a C o n c r e t e Co., 557 So.
2d 1 2 2 8 , 1230
( A l a .
1 9 9 0 ) . The c o u r t must l o o k t o
t h e
s u b s t a n c e o f t h e a s s i g n m e n t
r a t h e r t h a n t o
i t s
f o r m
t o
d e t e r m i n e
w h e t h e r
t h e r e
h a s
b e e n
an
a s s i g n m e n t . See i d . T h e r e h a s b e e n an a s s i g n m e n t (1)
i f
t h e
a s s i g n o r
i n t e n d e d t o
t r a n s f e r
a
p r e s e n t
i n t e r e s t i n t h e s u b j e c t m a t t e r o f t h e c o n t r a c t , i d . ,
a n d
(2) i f t h e a s s i g n o r a n d t h e a s s i g n e e m u t u a l l y
a s s e n t e d
t o
t h e
a s s i g n m e n t .
See
6A
C . J . S .
A s s i g n m e n t s § 73 ( 2 0 0 4 ) . An a s s i g n m e n t i s c o n s t r u e d
i n
a c c o r d a n c e
w i t h t h e l a w o f c o n t r a c t s .
D i l l
v .
B l a k e n e y , 568 So. 2 d 774, 778 ( A l a . 1 9 9 0 ) . "
DeVenney v. H i l l , 918 So. 2 d 106, 113 ( A l a .
2 0 0 5 ) .
LPP
a l s o
s u p p l i e d
t h e a f f i d a v i t
t e s t i m o n y o f W i l l i a m
S c o t t ,
a
l o a n
o f f i c e r f o r
B e a l S e r v i c e C o r p o r a t i o n
who p a r t i c i p a t e d i n L P P ' s
a c q u i s i t i o n
o f t h e l o a n
i n s t r u m e n t s f r o m
t h e SBA and
who
8
1080265
t e s t i f i e d
t h a t
t h e
n o t e
and
g u a r a n t y
a g r e e m e n t s
were
" t r a n s f e r r e d
and
a s s i g n e d "
t o LPP.
We
r e c o g n i z e
t h a t
u n d e r
DeVenney, s u p r a , and B a k e r v. E u f a u l a C o n c r e t e Co.,
557
So.
2d
1228
( A l a . 1 9 9 0 ) , w h e t h e r
an
a s s i g n m e n t
has
o c c u r r e d
i s
a
q u e s t i o n
o f
f a c t
as
t o w h i c h
t h e
t r i a l
c o u r t ' s
f i n d i n g
i s
p r e s u m e d c o r r e c t .
U n d e r t h e f a c t s o f t h i s c a s e , h o w e v e r ,
t h e
l a c k o f a s e p a r a t e w r i t t e n a s s i g n m e n t o f t h e g u a r a n t i e s by
t h e
SBA
t o LPP
i s n o t e v i d e n c e o f a l a c k o f i n t e n t t o a s s i g n
t h o s e
g u a r a n t i e s ,
p a r t i c u l a r l y
i n l i g h t
o f
t h e
a c t u a l d e l i v e r y o f
t h e
g u a r a n t i e s ,
a c c o m p a n i e d by
t h e
g e n e r a l
l a n g u a g e
o f
t h e
m o r t g a g e a s s i g n m e n t
t h a t
i t " i n c l u d e d
s u c h
o t h e r
d o c u m e n t s
t h a t s e c u r e t h e a s s i g n o r ' s i n t e r e s t i n t h e m o r t g a g e and
n o t e . "
M o r e o v e r , we
a r e aware o f t h e g e n e r a l r u l e t h a t an a s s i g n m e n t
o f a d e b t p a s s e s t o t h e a s s i g n e e
any
s e c u r i t y f o r t h e payment
t h e r e o f , and
a g u a r a n t y p a s s e s w i t h t h e a s s i g n m e n t o f a
n o t e .
See,
e.g.,
38 Am
J u r 2d G u a r a n t y § 33
( 2 0 0 9 ) .
A c c o r d i n g l y ,
we
c o n c l u d e
t h a t
t h e
SBA's
d e l i v e r y o f
t h e
g u a r a n t i e s
t o
LPP
a l o n g w i t h t h e o t h e r l o a n i n s t r u m e n t s
and t h e g e n e r a l
l a n g u a g e
o f a s s i g n m e n t were s u f f i c i e n t t o c o n s t i t u t e an a s s i g n m e n t
and
o p e r a t e
t o v e s t
LPP
w i t h a l l t h e SBA's r i g h t s
t o r e c o v e r
on
t h o s e
l o a n i n s t r u m e n t s .
Thus, t h e
t r i a l
c o u r t ' s h o l d i n g
t h a t
9
1080265
LPP
l a c k e d
p r i v i t y t o t h e g u a r a n t i e s
on w h i c h t o b r i n g
t h i s
a c t i o n was i n c o r r e c t .
The
t r i a l c o u r t a l s o h e l d , h o w e v e r , t h a t L P P ' s a c t i o n was
b a r r e d by t h e s i x - y e a r
l i m i t a t i o n s p e r i o d o f A l a . Code 1975,
§ 6-2-34. LPP a r g u e s t h a t t h e t r i a l c o u r t e r r e d i n so h o l d i n g
b e c a u s e , i t s a y s ,
i t s
a s s i g n m e n t came f r o m t h e SBA and i s
t h e r e f o r e
s u b j e c t
t o t h e f e d e r a l
l i m i t a t i o n s
p e r i o d
o f 28
U.S.C. § 2 4 1 5 ( a ) .
I n s u p p o r t o f i t s a r g u m e n t , LPP a s s e r t s t h e
r a t i o n a l e s e t o u t i n UMLIC VP LLC v. M a t t h i a s , 364 F . 3 d 125
(3d C i r . 2 0 0 4 ) .
I n t h a t c a s e , t h e p l a i n t i f f UMLIC VP LLC was
t h e
a s s i g n e e
o f a l o a n a n d m o r t g a g e
c r e a t e d i n t h e V i r g i n
I s l a n d s a n d o r i g i n a l l y s e c u r e d b y t h e SBA. When UMLIC VP LLC
s o u g h t
t o
f o r e c l o s e
t h e m o r t g a g e ,
t h e d e f e n d a n t
d e b t o r s
i n t e r p o s e d v a r i o u s d e f e n s e s , i n c l u d i n g t h e l i m i t a t i o n s
p e r i o d
e n a c t e d b y t h e T e r r i t o r y o f t h e V i r g i n I s l a n d s .
The
c o u r t
s t a t e d :
" H a v i n g s e t t l e d t h a t m o r t g a g e f o r e c l o s u r e i s
an
i n d e p e n d e n t a c t i o n u n d e r V i r g i n I s l a n d s l a w ,
we m u s t
d e t e r m i n e t h e s t a t u t e o f l i m i t a t i o n s
a p p l i c a b l e t o
s u c h an a c t i o n when i t
i s b r o u g h t b y an a s s i g n e e o f
t h e
U n i t e d
S t a t e s . UMLIC
c l a i m s
t h a t an
a s s i g n e e
s t a n d s i n t h e s h o e s o f t h e a s s i g n o r - - h e r e
t h e U n i t e d
S t a t e s - - a n d
t h u s
t h a t
t h e
f e d e r a l
l i m i t a t i o n s
p e r i o d s
a p p l y
t o i t a s t h e y w o u l d i f t h e
U n i t e d
S t a t e s
i t s e l f
b r o u g h t
a
f o r e c l o s u r e
a c t i o n .
We
a g r e e ,
a n d
j o i n
e v e r y
o t h e r
a p p e l l a t e
c o u r t
t o
10
1080265
c o n s i d e r
t h e
i s s u e .
T h r e e
c a s e s
i n
p a r t i c u l a r
command
o u r a t t e n t i o n :
T i v o l i
V e n t u r e s ,
I n c . v .
Bumann, 870 P.2d 1244 ( C o l o . 1 9 9 4 ) ; U n i t e d S t a t e s v .
T h o r n b u r g , 82 F . 3 d 886 ( 9 t h
C i r . 1 9 9 6 ) ; a n d FDIC v .
B l e d s o e , 989 F . 2 d 805 ( 5 t h C i r . 1 9 9 3 ) . We
b r i e f l y
d i s c u s s e a c h o f them.
" I n
T i v o l i V e n t u r e s , t h e q u e s t i o n
a r o s e i n
t h e
c o n t e x t
o f w h e t h e r an
a s s i g n e e
c o u l d
s u e on t h e
U n i t e d
S t a t e s '
( u n e x p i r e d )
c a u s e o f a c t i o n , o r was
l i m i t e d t o an a n t e c e d e n t ( a n d n o w - e x p i r e d ) c a u s e o f
a c t i o n . T h e r e , t h e FDIC as r e c e i v e r o f a f a i l e d b a n k
h a d
a s s i g n e d t o a p r i v a t e p a r t y a n o t e h e l d b y t h e
b a n k . The p a r t i e s d i d n o t d i s p u t e
t h a t t h e F D I C ' s
c a u s e
o f a c t i o n
a c c r u e d
o n l y
when t h e b a n k
was
p l a c e d i n r e c e i v e r s h i p , n o t when t h e n o t e
f i r s t came
o v e r d u e , h e n c e t h e F D I C ' s c l a i m e x p i r e d
l a t e r .
The
p r i v a t e p a r t y s u e d t o c o l l e c t on t h e n o t e , a n d was
met
w i t h t h e a r g u m e n t t h a t t h e a c t i o n was b a r r e d b y
C o l o r a d o ' s
s i x - y e a r
l i m i t a t i o n s
p e r i o d ,
w h i c h
s t a r t e d t o r u n f r o m t h e d a t e t h e n o t e was o v e r d u e .
The
p r i v a t e
p a r t y
p l a i n t i f f
a r g u e d
t h a t
a s t h e
a s s i g n e e
o f t h e F D I C ,
i t was
e n t i t l e d
t o t h e
s i x - y e a r l i m i t a t i o n s p e r i o d i n
28 U.S.C. § 2415 t h a t
s t a r t e d t o r u n f r o m t h e t i m e t h e b a n k was p u t i n t o
r e c e i v e r s h i p .
The
C o l o r a d o
Supreme
C o u r t
a g r e e d ,
h o l d i n g t h a t t h e p r i v a t e - p a r t y a s s i g n e e o f t h e FDIC
s t o o d i n t h e s h o e s o f t h e U n i t e d
S t a t e s .
" L i k e t h e c a s e b e f o r e u s , T h o r n b u r g i n v o l v e d t h e
g u a r a n t o r - m o r t g a g o r ' s
l i a b i l i t y when a
c o r p o r a t i o n
d e f a u l t e d on an S B A - b a c k e d l o a n . The g u a r a n t e e a n d
m o r t g a g e w e r e f i r s t a s s i g n e d t o a p r i v a t e p a r t y , a n d
t h e n
a s s i g n e d
b a c k t o t h e SBA w h i c h
b r o u g h t t h e
c a s e . The m o r t g a g o r a r g u e d t h a t t h e s t a t e s t a t u t e o f
l i m i t a t i o n s r a n o u t on t h e n o t e w h i l e
i t was i n
t h e
h a n d s o f t h e p r i v a t e p a r t y , a n d t h u s t h a t t h e a c t i o n
b y
t h e SBA was
t i m e
b a r r e d
a s
w e l l
b e c a u s e
a
t r a n s f e r
( b a c k ) t o t h e U n i t e d
S t a t e s
c a n n o t
r e v i v e
a t i m e - b a r r e d
c a u s e o f a c t i o n . See FDIC v. H i n k s o n ,
848
F . 2 d 432, 434
(3d C i r . 1988) ( ' I f t h e s t a t e
s t a t u t e
o f
l i m i t a t i o n s
h a s
e x p i r e d
b e f o r e
t h e
11
1080265
g o v e r n m e n t a c q u i r e s
a c l a i m , i t i s n o t r e v i v e d b y
t r a n s f e r
t o a
f e d e r a l
a g e n c y . ' ) .
The
C o u r t
o f
A p p e a l s f o r
t h e N i n t h
C i r c u i t h e l d t h a t t h e f e d e r a l
s t a t u t e
a p p l i e d .
A f t e r
d i s c u s s i n g
( a n d a p p r o v i n g )
c a s e s
t h a t
h o l d
t h a t
an
a s s i g n e e
o f t h e
U n i t e d
S t a t e s s t a n d s i n t h e s h o e s o f t h e U n i t e d S t a t e s , t h e
T h o r n b u r g C o u r t u l t i m a t e l y r e s t e d i t s h o l d i n g on t h e
f a c t
t h a t t h e a s s i g n m e n t t o t h e p r i v a t e p a r t y
was
o n l y f o r c o l l e c t i o n p u r p o s e s
( r e f e r r e d t o b y some
c o u r t s as a ' c o n s i g n m e n t ' ) , a n d t h e U n i t e d
S t a t e s
n e v e r d i v e s t e d
i t s e l f o f t h e n o t e . See T h o r n b u r g , 82
F.3d
a t 8 9 1 - 9 2 .
T h i s
may make
T h o r n b u r g
a
more
c o m p e l l i n g
c a s e
f o r
a p p l i c a t i o n
o f
f e d e r a l
l i m i t a t i o n s l a w t h a n t h i s c a s e , b e c a u s e i n t h e c a s e
b e f o r e u s now,
t i t l e t o t h e m o r t g a g e h a s p a s s e d t o
UMLIC.
" B l e d s o e ' s f a c t s a r e b e t w e e n T i v o l i V e n t u r e s a n d
T h o r n b u r g . L i k e
T i v o l i V e n t u r e s , B l e d s o e i n v o l v e d a
n o t e
t h a t
f i r s t
came
t o t h e
U n i t e d
S t a t e s
a s
r e c e i v e r
( t h e F S L I C ) i n an S & L i n s o l v e n c y .
The
n o t e
was
a s s i g n e d
t o
a
p r i v a t e
p a r t y
( u n l i k e
T h o r n b u r g , t h i s seems t o h a v e b e e n a t r u e s a l e , a n d
n o t a c o n s i g n m e n t ) a n d t h e n
( v i a a n o t h e r
i n s o l v e n c y )
b a c k
t o
t h e
U n i t e d
S t a t e s
as
r e c e i v e r .
L i k e
T h o r n b u r g , t h e d e f e n d a n t a s s e r t e d t h a t t h e f o u r - y e a r
s t a t e
s t a t u t e o f l i m i t a t i o n s r a n on t h e n o t e
w h i l e
i t was i n p r i v a t e h a n d s , a n d c o u l d n o t t h e r e a f t e r be
r e s u s c i t a t e d b y t r a n s f e r t o t h e U n i t e d
S t a t e s . The
C o u r t o f A p p e a l s f o r
t h e F i f t h C i r c u i t h e l d t h a t t h e
s i x - y e a r
f e d e r a l s t a t u t e a p p l i e d t o t h e n o t e
w h i l e
i t was i n t h e h a n d s o f t h e a s s i g n e e
o f t h e
U n i t e d
S t a t e s , a n d t h u s c o n c l u d e d t h a t t h e c a u s e o f a c t i o n
h a d n o t e x p i r e d .
S t a t e s , a n d t h u s c o n c l u d e d t h a t t h e c a u s e o f a c t i o n
„ ^ J
" T h o r n b u r g
l i s t s
as
a d h e r i n g
t o t h i s
r u l e a
number o f s t a t e c o u r t s a n d f e d e r a l d i s t r i c t
c o u r t s ,
i n
a d d i t i o n t o t h e C o u r t s o f A p p e a l f o r t h e
F i f t h
a n d
N i n t h
C i r c u i t s ;
i t n o t e s
o n l y
one
c o n t r a r y
d e c i s i o n ,
Wamco,
I I I , L t d . v.
F i r s t
P i e d m o n t
M o r t g a g e C o r p . , 856 F. Supp. 1076 (E.D. V a . 1 9 9 4 ) .
See
T h o r n b u r g 82 F. 3d a t 8 9 0 - 9 1 . S i n c e 1996, when
12
1080265
T h o r n b u r g was d e c i d e d , t h e C o u r t o f A p p e a l s f o r t h e
T e n t h C i r c u i t h a s j o i n e d t h i s g r o u p . See U M L I C - N i n e
C o r p . v . L i p a n
S p r i n g s Dev. C o r p . , 168 F . 3 d 1173
( 1 0 t h C i r . 1 9 9 9 ) . We t o o now j o i n t h e m a j o r i t y v i e w .
" I n
v i e w o f t h e t h o r o u g h
d i s c u s s i o n s i n T i v o l i
V e n t u r e s ,
B l e d s o e ,
a n d
T h o r n b u r g ,
we
s i m p l y
s u m m a r i z e w h a t we r e g a r d as t h e b e s t
d o c t r i n a l a n d
p u b l i c p o l i c y r e a s o n s f o r
t h e r u l e t h a t t h e a s s i g n e e
o f t h e U n i t e d
S t a t e s
s t a n d s
i n t h e s h o e s o f t h e
U n i t e d
S t a t e s
a n d i s e n t i t l e d
t o
r e l y
on t h e
l i m i t a t i o n s
p e r i o d s
p r e s c r i b e d
b y
f e d e r a l
l a w .
D o c t r i n a l l y , an a s s i g n e e
s t o o d i n t h e s h o e s o f t h e
a s s i g n o r a t common l a w , a n d t h e U n i f o r m
C o m m e r c i a l
Code p r o v i d e s t h a t
' [ t ] r a n s f e r o f an i n s t r u m e n t ...
v e s t s i n t h e t r a n s f e r e e a n y r i g h t o f t h e t r a n s f e r o r
t o
e n f o r c e
t h e
i n s t r u m e n t . '
UCC
§
3 - 2 0 3 ( b ) .
M o r e o v e r , t h e R e s t a t e m e n t
(Second) o f C o n t r a c t s §
336 cmt. b, e x . 3 e x p l a i n s t h a t 'A l e n d s money t o B
a n d
a s s i g n s h i s r i g h t t o C. C's r i g h t i s b a r r e d b y
t h e S t a t u t e o f L i m i t a t i o n s
when A's r i g h t w o u l d h a v e
b e e n . ' We s e e no r e a s o n
t h a t t h e i n v e r s e s h o u l d n o t
h o l d
a s
w e l l .
I n p u b l i c
p o l i c y
t e r m s ,
a f f o r d i n g
a s s i g n e e s o f t h e U n i t e d
S t a t e s t h e same
r i g h t s a s
t h e U n i t e d S t a t e s i s d e s i r a b l e b e c a u s e i t i m p r o v e s
t h e m a r k e t a b i l i t y o f i n s t r u m e n t s h e l d b y t h e U n i t e d
S t a t e s ,
t h e r e b y
g i v i n g
t h e U n i t e d
S t a t e s
g r e a t e r
f l e x i b i l i t y i n m o n e t i z i n g
i t s c l a i m s . "
364 F . 3 d a t 131-33
( f o o t n o t e o m i t t e d ; e m p h a s i s a d d e d ) .
I n
t h i s
c a s e
i t i s u n c o n t r o v e r t e d
t h a t
t h i s
l o a n
t r a n s a c t i o n o r i g i n a t e d
u n d e r t h e a u s p i c e s o f t h e SBA; t h a t t h e
g u a r a n t i e s a r e SBA d o c u m e n t s ; a n d t h a t t h e g u a r a n t i e s
w e r e
s p e c i f i c a l l y
a s s i g n e d
t o t h e SBA.
"Where t h e g o v e r n m e n t
a c q u i r e s
a
d e r i v a t i v e
c l a i m ,
w h e t h e r
b y
a s s i g n m e n t ,
s u b r o g a t i o n , o r b y o t h e r means, a n d t h a t c l a i m i s n o t t h e n
13
1080265
b a r r e d
b y
t h e
s t a t e s t a t u t e o f l i m i t a t i o n s ,
t h e
s t a t e
s t a t u t e
c e a s e s
t o
r u n
a g a i n s t
t h e
g o v e r n m e n t
a t
t h e
t i m e
o f
s u c h
a c q u i s i t i o n . "
U n i t e d
S t a t e s
v.
S e l l e r s ,
487
F.2d
1268,
1269
( 5 t h C i r . 1 9 7 3 ) .
A l a b a m a l a w i s l o n g s e t t l e d t h a t an
a s s i g n e e
s t a n d s i n t h e
s h o e s o f
t h e
a s s i g n o r .
Ocwen L o a n
S e r v i c i n g ,
LLC
v. W a s h i n g t o n ,
939
So.
2d
6
( A l a . 2 0 0 6 ) ; G r e e n T r e e F i n .
C o r p .
v.
C h a n n e l l ,
825
So.
2d
90
( A l a .
2 0 0 2 ) ;
and
May
v.
M a t h e r s ,
233
A l a .
654,
172
So.
907
( 1 9 3 7 ) .
A c c o r d i n g l y ,
i n
l i g h t o f t h a t a u t h o r i t y and
t h e
r a t i o n a l e o f UMLIC VP
LLC,
we
c o n c l u d e
t h a t
LPP,
t h e
a s s i g n e e
o f
t h e
SBA,
s t a n d s
i n
t h e
s h o e s o f
t h e
SBA
f o r t h e p u r p o s e s o f
a s s e r t i n g
i t s c l a i m
on
t h e
g u a r a n t i e s
and
t h a t
t h o s e
c l a i m s
a r e
s u b j e c t
t o
t h e
l i m i t a t i o n s
p e r i o d
i n
t h e
f e d e r a l
s t a t u t e ,
28
U.S.C.
§
2 4 1 5 ( a ) .
S e c t i o n 2 4 1 5 ( a ) s t a t e s , i n p e r t i n e n t
p a r t :
" [ E ] v e r y
a c t i o n
f o r money damages b r o u g h t
by
t h e
U n i t e d
S t a t e s
o r an
o f f i c e r o r a g e n c y t h e r e o f
w h i c h
i s f o u n d e d upon any
c o n t r a c t
e x p r e s s o r
i m p l i e d
i n
l a w o r f a c t ,
s h a l l be b a r r e d
u n l e s s
t h e c o m p l a i n t i s
f i l e d
w i t h i n
s i x y e a r s
a f t e r
t h e
r i g h t
o f
a c t i o n
a c c r u e s
o r
w i t h i n
one
y e a r
a f t e r
f i n a l
d e c i s i o n s
h a v e
b e e n
r e n d e r e d
i n
a p p l i c a b l e
a d m i n i s t r a t i v e
p r o c e e d i n g s
r e q u i r e d
by
c o n t r a c t
o r
by
l a w ,
w h i c h e v e r i s l a t e r :
P r o v i d e d ,
t h a t
i n t h e
e v e n t
o f
l a t e r
p a r t i a l p a y m e n t o r w r i t t e n a c k n o w l e d g m e n t
o f
d e b t , t h e
r i g h t o f a c t i o n
s h a l l be deemed t o
a c c r u e
14
1080265
a g a i n
a t
t h e
t i m e
o f
e a c h
s u c h
p a y m e n t
o r
a c k n o w l e d g m e n t
The
d e f e n d a n t s
a r g u e
t h a t
e v e n
u n d e r
t h i s
s t a t u t e ,
L P P ' s
a c t i o n i s t i m e - b a r r e d b e c a u s e , t h e y s a y , t h e c l a i m s
on
t h e i r
g u a r a n t i e s a c c r u e d a t t h e t i m e t h e y d e f a u l t e d on t h e n o t e , i n
1995.
I n
t h i s
a s s e r t i o n ,
h o w e v e r ,
t h e
d e f e n d a n t s
a r e
i n c o r r e c t .
The g u a r a n t i e s s t a t e :
" I n
c a s e t h e D e b t o r s h a l l
f a i l t o p a y
a l l o r any
p a r t
o f
t h e
L i a b i l i t i e s
when
due,
w h e t h e r
b y
a c c e l e r a t i o n o r o t h e r w i s e , a c c o r d i n g t o t h e t e r m s o f
s a i d
n o t e ,
t h e
U n d e r s i g n e d ,
i m m e d i a t e l y u p o n
t h e
w r i t t e n demand o f L e n d e r ,
w i l l
p a y
t o L e n d e r
t h e
amount due a n d u n p a i d b y t h e D e b t o r as a f o r e s a i d , i n
l i k e manner as i f s u c h amount c o n s t i t u t e d t h e
d i r e c t
a n d p r i m a r y o b l i g a t i o n o f t h e U n d e r s i g n e d . "
As t h e
t r i a l c o u r t c o r r e c t l y d e t e r m i n e d , a n d i n l i g h t o f t h e
p l a i n l a n g u a g e o f t h e g u a r a n t i e s , t h e c a u s e o f a c t i o n on
t h e
g u a r a n t i e s
d i d n o t a c c r u e
u n t i l
a w r i t t e n demand was
made.
E v e n i f t h e t r i a l c o u r t i s c o r r e c t i n d e t e r m i n i n g t h a t t h e
SBA
made w r i t t e n demand on t h e g u a r a n t i e s i n F e b r u a r y 1999 when i t
was a t t e m p t i n g t o s e t t l e w i t h t h e d e f e n d a n t s c o n c e r n i n g t h e i r
o b l i g a t i o n s u n d e r
t h e n o t e a n d g u a r a n t i e s , L P P ' s c l a i m s a r e
n o t t i m e - b a r r e d u n d e r 28 U.S.C. § 2 4 1 5 ( a ) .
The
r e c o r d shows
t h a t t h e d e f e n d a n t s made p a y m e n t s on t h e d e b t s e c u r e d b y
t h e
g u a r a n t i e s
i n v a r i o u s months b e t w e e n M a r c h 2001
a n d
J a n u a r y
15
1080265
2002.
T h u s , u n d e r 28 U.S.C. § 2 4 1 5 ( a ) , L P P ' s c a u s e o f a c t i o n
a c c r u e d as l a t e a s t h o s e m o n t h s , a n d t h e i n s t a n t a c t i o n was
f i l e d i n
A u g u s t 2005, w i t h i n t h e s i x - y e a r
l i m i t a t i o n s
p e r i o d .
The j u d g m e n t o f t h e t r i a l
c o u r t i s t h e r e f o r e
r e v e r s e d ,
a n d t h e c a u s e i s remanded f o r f u r t h e r p r o c e e d i n g s
c o n s i s t e n t
w i t h
t h i s
o p i n i o n .
REVERSED AND REMANDED.
W o o d a l l , S m i t h ,
P a r k e r ,
a n d Shaw, J J . , c o n c u r .
16 | October 23, 2009 |
ce6d3cbb-c3a1-4ee8-9d82-74aa5bddac4e | Ex parte State of Alabama. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: State of Alabama v. William D. Cornelius III and Billy W. Thompson, Colbert County Revenue Commisioner.) | N/A | 1080927 | Alabama | Alabama Supreme Court | REL:10/23/2009
N o t i c e :
T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e
Reporter of Decisions,
Alabama
A p p e l l a t e
C o u r t s , 300 D e x t e r Avenue, Montgomery,
Alabama
36104-3741
((334)
2 2 9 - 0 6 4 9 ) , o f
any t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may be made
b e f o r e t h e
o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1080927
Ex p a r t e S t a t e o f Alabama
PETITION FOR WRIT OF MANDAMUS
( I n r e : S t a t e o f Alabama
v.
W i l l i a m D. C o r n e l i u s I I I
and B i l l y W. Thompson, C o l b e r t
County Revenue Commissioner)
( C o l b e r t C i r c u i t Court, CV-08-137)
BOLIN,
J u s t i c e .
The S t a t e o f A l a b a m a p e t i t i o n s
t h i s C o u r t f o r
a w r i t o f
mandamus
d i r e c t i n g t h e C o l b e r t
C i r c u i t
C o u r t t o e n t e r an
1080927
o r d e r
d i s m i s s i n g ,
on t h e b a s i s
o f s o v e r e i g n
i m m u n i t y , t h e
c o u n t e r c l a i m
f o r i n v e r s e
c o n d e m n a t i o n
f i l e d
b y W i l l i a m
D.
C o r n e l i u s I I I .
I .
B a c k g r o u n d
On J a n u a r y 25, 2008, t h e S t a t e , a c t i n g b y and t h r o u g h t h e
A l a b a m a D e p a r t m e n t o f T r a n s p o r t a t i o n ,
f i l e d
i n t h e
C o l b e r t
P r o b a t e
C o u r t a p e t i t i o n
f o r c o n d e m n a t i o n o f a p o r t i o n o f
p r o p e r t y
owned by
C o r n e l i u s
and on w h i c h
C o l b e r t
C o u n t y
c l a i m e d
a
l i e n
f o r ad v a l o r e m
t a x e s .
1
C o r n e l i u s
f i l e d
an
a n s w e r .
U l t i m a t e l y , t h e C o l b e r t
P r o b a t e
C o u r t
e n t e r e d
a
j u d g m e n t c o n d e m n i n g t h e p r o p e r t y .
C o r n e l i u s a p p e a l e d t o t h e
C o l b e r t
C i r c u i t
C o u r t .
On F e b r u a r y 23, 2009,
C o r n e l i u s
f i l e d
a m o t i o n i n t h e
C o l b e r t C i r c u i t C o u r t t o amend h i s
a n s w e r f i l e d i n
t h e p r o b a t e
c o u r t
t o a s s e r t a c o u n t e r c l a i m
a g a i n s t
t h e S t a t e
a l l e g i n g
i n v e r s e c o n d e m n a t i o n .
The S t a t e moved t o d i s m i s s t h e i n v e r s e -
c o n d e m n a t i o n c l a i m b a s e d on t h e c o n s t i t u t i o n a l i m m u n i t y o f
t h e
S t a t e . See A l a . C o n s t . 1 9 0 1 , § 14 ( " t h e S t a t e
s h a l l n e v e r be
made a d e f e n d a n t i n any c o u r t o f l a w o r e q u i t y " ) .
W i t h o u t
c o n d u c t i n g
a h e a r i n g ,
t h e C o l b e r t
C i r c u i t
C o u r t
d e n i e d t h e
1 C o l b e r t C o u n t y ' s R e v e n u e C o m m i s s i o n e r , B i l l y W. Thompson,
was named as a d e f e n d a n t .
2
1080927
S t a t e ' s
m o t i o n t o d i s m i s s
C o r n e l i u s ' s
i n v e r s e - c o n d e m n a t i o n
c l a i m , a l l o w i n g t h e c l a i m t o s t a n d .
The S t a t e t h e n f i l e d
t h i s
p e t i t i o n f o r
a w r i t o f mandamus r e q u e s t i n g
t h i s C o u r t t o e n t e r
an
o r d e r ,
d i r e c t i n g t h e C o l b e r t
C i r c u i t
C o u r t
t o
d i s m i s s
C o r n e l i u s ' s
i n v e r s e - c o n d e m n a t i o n
c l a i m .
T h i s
C o u r t
o r d e r e d
t h e p a r t i e s t o l i m i t t h e i r a r g u m e n t s t o t h e i s s u e o f s o v e r e i g n
i m m u n i t y .
We g r a n t t h e p e t i t i o n and i s s u e
w r i t .
I I .
S t a n d a r d o f R e v i e w
"A w r i t o f mandamus i s an e x t r a o r d i n a r y remedy,
and
i t ' w i l l be
i s s u e d
o n l y when
t h e r e
i s : 1) a
c l e a r
l e g a l
r i g h t
i n t h e p e t i t i o n e r t o t h e
o r d e r
s o u g h t ; 2) an i m p e r a t i v e d u t y upon t h e r e s p o n d e n t t o
p e r f o r m , a c c o m p a n i e d by a r e f u s a l t o do s o ;
3) t h e
l a c k o f a n o t h e r
a d e q u a t e r e m e d y ; and 4)
p r o p e r l y
i n v o k e d
j u r i s d i c t i o n o f t h e c o u r t . ' Ex p a r t e
U n i t e d
S e r v .
S t a t i o n s ,
I n c . , 628 So. 2d 501
, 503 ( A l a .
19 9 3 ) . "
Ex p a r t e
B u t t s , 775 So. 2d 173, 176 ( A l a . 2 0 0 0 ) .
T h i s
C o u r t
has
h e l d
t h a t
"a
p e t i t i o n
f o r a
w r i t
o f mandamus
i s an
a p p r o p r i a t e
means f o r s e e k i n g
r e v i e w
o f an o r d e r
d e n y i n g a
c l a i m o f i m m u n i t y . "
775 So. 2d a t 176.
I I I .
D i s c u s s i o n
I n i t s b r i e f t o t h i s C o u r t , t h e S t a t e ,
r e l y i n g p r i m a r i l y
on Ex p a r t e A l a b a m a D e p a r t m e n t o f T r a n s p o r t a t i o n , 978 So. 2d
17 ( A l a . 2007) ("Good H o p e " ) , a r g u e s t h a t t h e C o l b e r t
C i r c u i t
3
1080927
C o u r t
had
no
a l t e r n a t i v e
b u t
t o
d i s m i s s
t h e
i n v e r s e -
c o n d e m n a t i o n c l a i m b e c a u s e t h e
c l a i m was
s o l e l y
a g a i n s t
t h e
S t a t e .
See
Ex
p a r t e
C a r t e r ,
395
So.
2d
65,
68
( A l a .
1 9 8 0 ) ( a c t i o n s
f o r
i n v e r s e
c o n d e m n a t i o n
a r e
t o
be
" b r o u g h t
a g a i n s t
S t a t e
o f f i c i a l s
i n t h e i r
r e p r e s e n t a t i v e c a p a c i t y " ) .
I n
r e g a r d
t o
s u i n g
a
S t a t e
a g e n c y ,
t h i s
C o u r t
i n Good
Hope s t a t e d :
" T h i s
C o u r t has
l o n g
h e l d
t h a t
' " ' t h e
c i r c u i t
c o u r t
i s w i t h o u t
j u r i s d i c t i o n
t o
e n t e r t a i n a
s u i t
a g a i n s t
t h e
S t a t e
b e c a u s e
o f
Sec.
14
o f
t h e
C o n s t i t u t i o n . ' " '
L a r k i n s
v.
D e p a r t m e n t
o f
M e n t a l
H e a l t h
& M e n t a l
R e t a r d a t i o n ,
80 6
So.
2d
358 ,
364
( A l a . 2 0 0 1 ) ( q u o t i n g A l a b a m a S t a t e Docks T e r m i n a l
Ry.
v.
L y l e s , 797
So.
2d
432,
435
( A l a . 2 0 0 1 ) ,
q u o t i n g
i n t u r n A l a n d
v. Graham, 287
A l a . 226,
229,
250
So.
2d
677,
678
( 1 9 7 1 ) ) .
' [ A ] n
a c t i o n c o n t r a r y
t o
t h e
S t a t e ' s i m m u n i t y i s an a c t i o n o v e r w h i c h t h e
c o u r t s
o f
t h i s
S t a t e l a c k s u b j e c t - m a t t e r
j u r i s d i c t i o n . '
" T h i s C o u r t has
r e p e a t e d l y h e l d t h a t § 14,
A l a .
C o n s t . 1901,
' a f f o r d s t h e S t a t e and
i t s a g e n c i e s
an
" a b s o l u t e " i m m u n i t y f r o m s u i t
i n any
c o u r t . '
H a l e y
v. B a r b o u r C o u n t y , 885
So.
2d 783,
788
( A l a . 2 0 0 4 ) ;
see a l s o Ex p a r t e M o b i l e C o u n t y Dep't o f Human
R e s . ,
815
So.
2d
527,
530
( A l a . 2
0
0 1 ) ( ' P u r s u a n t
t o §
14,
A l a .
C o n s t .
o f
1901,
t h e
S t a t e
o f A l a b a m a
and
i t s
a g e n c i e s
h a v e
a b s o l u t e
i m m u n i t y
f r o m
s u i t
i n
any
c o u r t . ' ) ;
Ex
p a r t e
T u s c a l o o s a
C o u n t y ,
796
So.
2d
1100,
1103
( A l a . 2 0 0 0 ) ( ' U n d e r A l a . C o n s t .
o f
1901,
§
14,
t h e
S t a t e
o f A l a b a m a
has
a b s o l u t e
i m m u n i t y
f r o m
l a w s u i t s .
T h i s
a b s o l u t e
i m m u n i t y e x t e n d s
t o
arms o r a g e n c i e s
o f t h e s t a t e
' ) .
T h i s
a b s o l u t e
i m m u n i t y f r o m s u i t a l s o b a r s
s u i t s
f o r r e l i e f by
way
4
1080927
o f mandamus o r i n j u n c t i o n . Ex p a r t e T r o y U n i v . , 961
So. 2d 105, 110 ( A l a . 2 0 0 6 ) . "
Good Hope, 978 So. 2d a t 2 1 - 2 2 .
T h i s C o u r t h a s r e c o g n i z e d
s e v e r a l
c a t e g o r i e s o f a c t i o n s
t h a t a r e n o t b a r r e d b y § 14:
" T h e r e a r e f o u r
g e n e r a l
c a t e g o r i e s
o f
a c t i o n s
w h i c h
...
we
s t a t e d
do
n o t
come
w i t h i n
t h e
p r o h i b i t i o n o f § 14: (1) a c t i o n s b r o u g h t t o c o m p e l
S t a t e
o f f i c i a l s t o p e r f o r m
t h e i r
l e g a l
d u t i e s ; (2)
a c t i o n s
b r o u g h t
t o
e n j o i n
S t a t e
o f f i c i a l s
f r o m
e n f o r c i n g
an u n c o n s t i t u t i o n a l l a w ; (3) a c t i o n s t o
c o m p e l
S t a t e
o f f i c i a l s t o p e r f o r m m i n i s t e r i a l
a c t s ;
and
(4)
a c t i o n s
b r o u g h t
u n d e r
t h e
D e c l a r a t o r y
J u d g m e n t s A c t , T i t .
7, § 156, e t s e q . , s e e k i n g
c o n s t r u c t i o n o f a s t a t u t e and i t s a p p l i c a t i o n i n a
g i v e n
s i t u a t i o n .
...
O t h e r
a c t i o n s
w h i c h a r e n o t
p r o h i b i t e d
by
§
14
a r e :
(5)
v a l i d
i n v e r s e
c o n d e m n a t i o n
a c t i o n s b r o u g h t a g a i n s t S t a t e
o f f i c i a l s
i n
t h e i r
r e p r e s e n t a t i v e
c a p a c i t y ; and (6) a c t i o n s
f o r
i n j u n c t i o n o r damages
b r o u g h t
a g a i n s t
S t a t e
o f f i c i a l s
i n
t h e i r
r e p r e s e n t a t i v e
c a p a c i t y
and
i n d i v i d u a l l y
where
i t was
a l l e g e d
t h a t
t h e y h a d
a c t e d
f r a u d u l e n t l y ,
i n b a d
f a i t h ,
b e y o n d
t h e i r
a u t h o r i t y o r i n a m i s t a k e n i n t e r p r e t a t i o n o f
l a w . "
Drummond Co. v. A l a b a m a Dep't o f T r a n s p . , 937 So. 2d 56, 58
( A l a .
2 0 0 6 ) .
I n o t h e r w o r d s , an i n v e r s e - c o n d e m n a t i o n a c t i o n must be
b r o u g h t
a g a i n s t
a
S t a t e
o f f i c i a l
i n h i s o r h e r
o f f i c i a l
c a p a c i t y .
Ex p a r t e
C a r t e r , s u p r a .
See a l s o A l a b a m a Dep't o f
C o r r . v . M o n t g o m e r y C o u n t y Comm'n, 11 So. 3d 189, 194 ( A l a .
2008) ( t h e
c a t e g o r y o f a c t i o n s t h a t a r e n o t b a r r e d b y § 14 a r e
5
1080927
" r e l e v a n t
o n l y
as
t h e y
r e l a t e
t o
c l a i m s
a g a i n s t
S t a t e
o f f i c i a l s
i n t h e i r
o f f i c i a l c a p a c i t i e s , n o t as t h e y
r e l a t e
t o
t h e
S t a t e a g e n c y o r t h e
S t a t e
i t s e l f " ) .
I n
A l a b a m a
D e p a r t m e n t
o f
T r a n s p o r t a t i o n
v.
H a r b e r t
I n t e r n a t i o n a l ,
I n c . ,
990
So.
2d
831 , 840
( A l a . 2008 ),
t h i s
C o u r t c l a r i f i e d t h a t t h o s e
c a t e g o r i e s o f a c t i o n s t h a t a r e
n o t
b a r r e d
by
§
14,
e.g.,
i n v e r s e - c o n d e m n a t i o n
a c t i o n s ,
a r e
s o m e t i m e s r e f e r r e d t o as
" e x c e p t i o n s "
t o §
14:
"These
a c t i o n s
a r e
s o m e t i m e s
r e f e r r e d
t o
as
' e x c e p t i o n s '
t o
§
14;
h o w e v e r ,
i n
a c t u a l i t y
t h e s e
a c t i o n s
a r e
s i m p l y
n o t
c o n s i d e r e d
t o
be
a c t i o n s
' " a g a i n s t t h e S t a t e " f o r § 14 p u r p o s e s . '
P a t t e r s o n
v. G l a d w i n C o r p . ,
835
So.
2d
137,
142
( A l a . 2 0 0 2 ) .
T h i s C o u r t has
q u a l i f i e d t h o s e
' e x c e p t i o n s , '
n o t i n g
t h a t
' " [ a ] n a c t i o n i s one
a g a i n s t
t h e
[ S ] t a t e when
a f a v o r a b l e
r e s u l t f o r t h e
p l a i n t i f f w o u l d
d i r e c t l y
a f f e c t a c o n t r a c t o r p r o p e r t y
r i g h t o f t h e S t a t e ,
o r
w o u l d
r e s u l t
i n t h e
p l a i n t i f f ' s
r e c o v e r y
o f money
f r o m t h e
[ S ] t a t e . " ' A l a b a m a A g r i c . & Mech. U n i v .
v.
J o n e s ,
895
So.
2d
867,
873
( A l a .
2
0
0 4 ) ( q u o t i n g
S h o a l s
Cmty.
C o l l .
v.
C o l a g r o s s ,
674
So.
2d
1311,
1314
( A l a . C i v . App.
19 9 5 ) ) ( e m p h a s i s i n
J o n e s ) . "
I V .
C o n c l u s i o n
We
a g r e e
w i t h
t h e
S t a t e
t h a t
b e c a u s e
C o r n e l i u s ' s
c o u n t e r c l a i m
a l l e g i n g
i n v e r s e c o n d e m n a t i o n named s o l e l y
t h e
S t a t e
as
a
d e f e n d a n t ,
t h e
C o l b e r t
C i r c u i t
C o u r t
l a c k e d
s u b j e c t - m a t e r
j u r i s d i c t i o n
t o e n t e r t a i n t h e c o u n t e r c l a i m
and
had
no
a l t e r n a t i v e b u t
t o d i s m i s s
i t .
"[A]
c o m p l a i n t
f i l e d
6
1080927
s o l e l y a g a i n s t t h e S t a t e o r one o f i t s a g e n c i e s i s
a
n u l l i t y
and i s
v o i d ab i n i t i o . ... Any a c t i o n t a k e n by a c o u r t w i t h o u t
s u b j e c t - m a t t e r
j u r i s d i c t i o n - - o t h e r
t h a n
d i s m i s s i n g
t h e
a c t i o n - - i s v o i d . "
M o n t g o m e r y C o u n t y C o m m i s s i o n , 11 So. 3d a t
a t 192.
B a s e d on t h e f o r e g o i n g , we h o l d t h a t t h e C o l b e r t
C i r c u i t
C o u r t
does
n o t
have
j u r i s d i c t i o n
o v e r
t h e
a s s e r t e d
c o u n t e r c l a i m a n d t h a t i t
must be
d i s m i s s e d .
P E T I T I O N GRANTED; WRIT ISSUED.
Cobb, C . J . ,
a n d L y o n s ,
W o o d a l l ,
S t u a r t , S m i t h ,
P a r k e r ,
and Shaw, J J . , c o n c u r .
M u r d o c k , J . ,
c o n c u r s i n t h e r e s u l t .
7 | October 23, 2009 |
c3f6fd7a-03c4-448b-9443-76750c5855f9 | Ex parte Carthell Garner. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Carthell Garner, alias v. State of Alabama) (Mobile Circuit Court: CC08-747; CC08-748; Criminal Appeals : CR-08-0187). Writ Denied. No Opinion. | N/A | 1081702 | Alabama | Alabama Supreme Court | REL: 11/06/2009
Notice: T h i s o p i n i o n i s
s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n
t h e
advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e
r e q u e s t e d t o n o t i f y t h e
Reporter of
Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741
((334)
229-0649), o f
any t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may be made
b e f o r e t h e
o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1081702
Ex p a r t e C a r t h e l l
Garner
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
( I n r e : C a r t h e l l
Garner
v.
S t a t e o f
Alabama)
(Mobile C i r c u i t Court, CC-08-747 and CC-08-748;
Court o f C r i m i n a l Appeals, CR-08-0187)
PER CURIAM.
The p e t i t i o n f o r
t h e
w r i t o f c e r t i o r a r i i s d e n i e d .
WRIT DENIED.
S t u a r t , S m i t h ,
B o l i n ,
P a r k e r , a n d Shaw, J J . , c o n c u r .
L y o n s , J . ,
c o n c u r s
s p e c i a l l y .
1081702
Cobb, C . J . , and M u r d o c k , J . , c o n c u r i n p a r t a n d
d i s s e n t
i n
p a r t .
W o o d a l l , J . , d i s s e n t s .
2
1081702
LYONS, J u s t i c e ( c o n c u r r i n g s p e c i a l l y ) .
C h i e f J u s t i c e Cobb's s p e c i a l w r i t i n g , c o n c u r r i n g i n p a r t
and
d i s s e n t i n g
i n p a r t ,
c o n c l u d e s
t h a t
C a r t h e l l
G a r n e r
a d e q u a t e l y
s t a t e d a c o n f l i c t b e t w e e n t h e C o u r t o f C r i m i n a l
A p p e a l s ' u n p u b l i s h e d memorandum i n h i s c a s e , G a r n e r v . S t a t e
( N o . CR-08-0187, J u l y 3 1 , 2 0 0 9 ) , __ So. 3 d __ ( A l a . C r i m . App.
200 9)
( t a b l e ) , and G r i m s l e y v . S t a t e , 632 So. 2d 547
( A l a .
C r i m . App. 2 0 0 3 ) .
G a r n e r ' s
p e t i t i o n
i n c l u d e s a
f r a g m e n t a r y
q u o t e
f r o m
t h e
C o u r t
o f
C r i m i n a l
A p p e a l s '
u n p u b l i s h e d
memorandum and a t t e m p t s t o t a k e t h e q u o t e b e y o n d i t s c o n t e x t .
G a r n e r
p o i n t s s o l e l y t o t h e f o l l o w i n g s t a t e m e n t i n
t h e
C o u r t
o f
C r i m i n a l
A p p e a l s '
u n p u b l i s h e d memorandum: "What
[ S t a t e ' s w i t n e s s H o w a r d ] Pompey may h a v e p e r s o n a l l y
b e l i e v e d
o r h o p e d f o r w o u l d
have b e e n a m a t t e r
l e f t
t o t h e j u r y ' s
d e t e r m i n a t i o n i n w e i g h i n g t h e t e s t i m o n y p u r s u a n t t o t h e t r i a l
c o u r t ' s c h a r g e as t o b i a s . "
( P e t i t i o n , a t p. 5.)
G a r n e r
t h e n
c o n t e n d s
t h a t , b e c a u s e he was n o t a l l o w e d t o q u e s t i o n Howard
Pompey r e g a r d i n g h i s b e l i e f s o r h o p e s as t o t h e d i s p o s i t i o n o f
p e n d i n g c h a r g e s a g a i n s t Pompey i f
he t e s t i f i e d a g a i n s t G a r n e r ,
t h e r e was n o t h i n g f o r
t h e j u r y t o w e i g h t o d e t e r m i n e
w h e t h e r
Pompey was b i a s e d i n f a v o r o f t h e S t a t e .
G a r n e r ' s
a t t e m p t
i l l u s t r a t e s t h e p r o b l e m o f u s i n g o n l y
f r a g m e n t a r y q u o t e s
f r o m an u n p u b l i s h e d memorandum o r o p i n i o n
3
1081702
t o
a l l e g e
c o n f l i c t .
G a r n e r
o m i t s
t h e p r e c e d i n g s e n t e n c e ,
w h i c h
s t a t e s : " N o r
was
he p r e v e n t e d f r o m q u e s t i o n i n g Pompey
c o n c e r n i n g h i s r o l e
i n t h e p r e s e n t o f f e n s e i n f r o n t
o f
t h e
j u r y . "
( E m p h a s i s
added.)
When t h e two
s e n t e n c e s a r e r e a d
t o g e t h e r , as t h e y s h o u l d be, i t i s a p p a r e n t t h a t t h e s t a t e m e n t
o f t h e C o u r t o f C r i m i n a l A p p e a l s a t t a c k e d by G a r n e r r e l a t e s t o
t h e
j u r o r s '
w e i g h i n g
o f
any
b i a s
b a s e d
on Pompey's
h o p e s
r e g a r d i n g w h e t h e r he w o u l d be p r o s e c u t e d " c o n c e r n i n g h i s r o l e
i n
t h e p r e s e n t
o f f e n s e . "
B e c a u s e
o f G a r n e r ' s
i n e f f e c t i v e
a t t e m p t
t o
e s t a b l i s h
c o n f l i c t ,
I c o n c u r
t o deny
G a r n e r ' s
p e t i t i o n f o r t h e w r i t o f
c e r t i o r a r i .
4
1081702
COBB, C h i e f
J u s t i c e
( c o n c u r r i n g
i n p a r t
and d i s s e n t i n g i n
p a r t ) .
C a r t h e l l
G a r n e r ' s
p e t i t i o n
f o r t h e w r i t
o f
c e r t i o r a r i
a d e q u a t e l y
d e m o n s t r a t e s
a
s u f f i c i e n t
l i k e l i h o o d
t h a t
t h e
d e c i s i o n
o f t h e
C o u r t
o f
C r i m i n a l
A p p e a l s
i n h i s
c a s e
c o n f l i c t s w i t h G r i m s l e y v . S t a t e , 632 So. 2d 547 ( A l a . C r i m .
App. 2 0 0 3 ) , t o w a r r a n t t h i s C o u r t ' s r e v i e w .
I w o u l d g r a n t t h e
p e t i t i o n t o r e v i e w t h a t
i s s u e .
A c c o r d i n g l y , I
r e s p e c t f u l l y
d i s s e n t f r o m t h e C o u r t ' s d e c i s i o n t o d e n y r e v i e w as t o t h a t
g r o u n d .
As t o t h e o t h e r g r o u n d s
a s s e r t e d i n t h e p e t i t i o n , I
c o n c u r t o d e n y r e v i e w .
F a c t s and P r o c e d u r a l H i s t o r y
G a r n e r was t r i e d f o r
t h e J u n e 9, 2007, m u r d e r s o f E r n e s t
L e w i s and D a n i e l l e C h e s t a n g .
The m u r d e r s were a l l e g e d t o h a v e
r e s u l t e d
f r o m a d i s p u t e d u r i n g an
i l l e g a l
d r u g
t r a n s a c t i o n .
On
c r o s s - e x a m i n a t i o n , G a r n e r ' s
c o u n s e l
q u e s t i o n e d
Howard
Pompey, a p r o s e c u t i o n w i t n e s s , as t o w h e t h e r he f a c e d c r i m i n a l
c h a r g e s b a s e d on h i s r o l e i n t h e t r a n s a c t i o n t h a t r e s u l t e d i n
t h e c h a r g e s a g a i n s t G a r n e r . Pompey r e s p o n d e d
t h a t he h a d n o t
b e e n
c h a r g e d ;
h o w e v e r , he
s a i d ,
t h e p o l i c e
h a d
o r i g i n a l l y
q u e s t i o n e d h i m as t o w h e t h e r he h a d s u p p l i e d t h e v i c t i m s
w i t h
m a r i j u a n a .
G a r n e r ' s c o u n s e l t h e n a s k e d Pompey: "As a m a t t e r
5
1081702
o f
f a c t ,
y o u ' v e g o t s e v e r a l
c a s e s p e n d i n g
o u t s i d e o f y o u r
s i t u a t i o n i n t h i s c a s e , d o n ' t y o u ? "
The p r o s e c u t o r t h e n made
a m o t i o n i n l i m i n e o u t s i d e t h e p r e s e n c e o f t h e j u r y , a r g u i n g
t h a t
G a r n e r
s h o u l d be
a l l o w e d t o a s k Pompey
a b o u t
p r i o r
c o n v i c t i o n s o r c h a r g e s o n l y i f t h o s e c o n v i c t i o n s o r c h a r g e s
i n v o l v e d d i s h o n e s t y o r f a l s e
s t a t e m e n t .
The
t r i a l
c o u r t i n f o r m e d G a r n e r ' s c o u n s e l t h a t ,
b e c a u s e
t h e
p e n d i n g c h a r g e s
a g a i n s t Pompey were
f i l e d
a f t e r he h a d
g i v e n h i s s t a t e m e n t t o t h e p o l i c e i n t h e c a s e a g a i n s t G a r n e r ,
c o u n s e l
w o u l d
n o t be
a l l o w e d t o q u e s t i o n h i m a b o u t
t h o s e
c h a r g e s .
G a r n e r ' s
c o u n s e l a r g u e d
t h a t t h e j u r y m i g h t
f i n d
t h a t Pompey b e l i e v e d
t h a t
g i v i n g t e s t i m o n y f a v o r a b l e t o t h e
p r o s e c u t i o n w o u l d h e l p w i t h t h e c h a r g e s p e n d i n g a g a i n s t h i m ,
and t h e t r i a l
c o u r t
s t a t e d
t h a t i t w o u l d
g i v e
t h e j u r y a
c h a r g e as t o b i a s .
T h e r e a f t e r ,
o u t s i d e t h e p r e s e n c e o f t h e j u r y ,
G a r n e r ' s
c o u n s e l a s k e d Pompey when he was a r r e s t e d on t h e two p e n d i n g
c h a r g e s .
Pompey r e s p o n d e d
t h a t i t was "two t o t h r e e d a y s
ago." G a r n e r ' s c o u n s e l was n o t a l l o w e d t o a s k any q u e s t i o n s t o
d e t e r m i n e
w h e t h e r Pompey was h o p i n g
t h a t h i s t e s t i m o n y i n
G a r n e r ' s c a s e m i g h t h e l p h i m r e c e i v e
f a v o r a b l e t r e a t m e n t on
t h e
c h a r g e s p e n d i n g a g a i n s t h i m . Pompey t e s t i f i e d t h a t he h a d
n o t h a d any d i s c u s s i o n s w i t h t h e S t a t e as t o t h o s e c h a r g e s .
6
1081702
When G a r n e r ' s c o u n s e l b e g a n t o q u e s t i o n Pompey c o n c e r n i n g h i s
i n v o l v e m e n t
i n t h e d r u g
t r a n s a c t i o n i n G a r n e r ' s
c a s e , t h e
t r i a l c o u r t i n f o r m e d h i m t h a t he c o u l d q u e s t i o n Pompey on t h a t
m a t t e r
i n f r o n t
o f t h e
j u r y ;
o n l y
t e s t i m o n y
as t o t h e
u n r e l a t e d p e n d i n g c h a r g e s was b e i n g
e l i c i t e d on v o i r
d i r e o f
t h e w i t n e s s Pompey.
B e c a u s e t h e v o i r e d i r e o f t h e w i t n e s s d i d
n o t
r e v e a l any e v i d e n c e
i n d i c a t i n g t h a t Pompey and t h e S t a t e
had
d i s c u s s e d t h e p o s s i b i l i t y o f f a v o r a b l e t r e a t m e n t
on t h e
p e n d i n g c h a r g e s ,
t h e t r i a l
c o u r t
r u l e d t h a t d e f e n s e
c o u n s e l
w o u l d n o t be a l l o w e d t o q u e s t i o n Pompey as t o t h o s e
p e n d i n g
c h a r g e s i n f r o n t o f t h e j u r y .
G a r n e r was c o n v i c t e d o f m u r d e r i n g L e w i s and C h e s t a n g , and
he
a p p e a l e d .
On
a p p e a l ,
he
a r g u e d
t h a t
t h e
t r i a l
c o u r t
i m p r o p e r l y p r o h i b i t e d h i m f r o m p r o v i n g t h a t Pompey's
t e s t i m o n y
was
b i a s e d
i n f a v o r
o f t h e
S t a t e
b y t h e hope
t h a t h i s
t e s t i m o n y
i n G a r n e r ' s
c a s e w o u l d
b e n e f i t h i m i n t h e
o t h e r
c a s e s
p e n d i n g
a g a i n s t h i m . G a r n e r c o n t e n d e d
t h a t t h e
t r i a l
c o u r t
i m p r o p e r l y
l i m i t e d h i s c r o s s - e x a m i n a t i o n
o f Pompey b y
r u l i n g t h a t , u n l e s s
Pompey h a d b e e n i n v o l v e d i n c o n v e r s a t i o n s
w i t h
t h e
S t a t e
r e g a r d i n g
f a v o r a b l e
t r e a t m e n t
on
p e n d i n g
c h a r g e s
i n r e t u r n f o r h i s t e s t i m o n y ,
G a r n e r
w o u l d n o t be
a l l o w e d t o q u e s t i o n Pompey c o n c e r n i n g t h e p e n d i n g c h a r g e s .
On
J u l y 3 1 , 2009, t h e C o u r t
o f C r i m i n a l A p p e a l s
a f f i r m e d t h e
7
1081702
t r i a l
c o u r t ' s j u d g m e n t i n an u n p u b l i s h e d memorandum.
G a r n e r
v.
S t a t e
(No. CR-08-0187,
J u l y 3 1 , 2 0 0 9 ) ,
So. 3d
( A l a .
C r i m . App. 2009)
( t a b l e ) .
S u b s e q u e n t l y , G a r n e r
f i l e d a
p e t i t i o n f o r
a w r i t o f c e r t i o r a r i i n t h i s
C o u r t .
A n a l y s i s
G a r n e r a r g u e s t h a t t h e d e c i s i o n o f t h e C o u r t o f C r i m i n a l
A p p e a l s
c o n f l i c t s
w i t h
G r i m s l e y ,
s u p r a .
I n G r i m s l e y , t h e
C o u r t o f C r i m i n a l A p p e a l s h e l d t h a t a t r i a l
c o u r t v i o l a t e d a
c r i m i n a l d e f e n d a n t ' s r i g h t s u n d e r t h e S i x t h Amendment t o t h e
U n i t e d
S t a t e s
C o n s t i t u t i o n when i t
p r o h i b i t e d t h e d e f e n d a n t
f r o m c r o s s - e x a m i n i n g
a p r o s e c u t i o n
w i t n e s s t o show t h a t t h e
w i t n e s s
"was on p r o b a t i o n ;
t h a t she was
s e l l i n g
a l c o h o l i c
b e v e r a g e s ,
o p e r a t i n g a b a r , and h a d c o m m i t t e d o t h e r
a c t s i n
c o n n e c t i o n
w i t h
t h e
o p e r a t i o n
o f t h e b a r
t h a t
were i n
v i o l a t i o n o f t h e t e r m s o f h e r p r o b a t i o n ; ... t h a t she h a d n o t
b e e n a r r e s t e d f o r
t h e v i o l a t i o n o f h e r p r o b a t i o n " ; and t h a t
" t h e w i t n e s s h a d some t y p e o f d e a l o r ' e x p e c t e d '
d e a l w i t h t h e
S t a t e p u r s u a n t t o w h i c h she w o u l d n o t be p r o s e c u t e d
f o r
h e r
p r o b a t i o n
v i o l a t i o n i n e x c h a n g e f o r
h e r t e s t i m o n y . "
632 So.
2d a t 552. The C o u r t o f C r i m i n a l A p p e a l s a l s o h e l d
t h a t t h e
t r i a l c o u r t v i o l a t e d t h e d e f e n d a n t ' s S i x t h Amendment r i g h t s b y
p r o h i b i t i n g
c r o s s - e x a m i n a t i o n
o f
a n o t h e r
w i t n e s s
"as t o
w h e t h e r
t h e r e
were
o u t s t a n d i n g
w a r r a n t s
f o r h e r h u s b a n d ' s
8
1081702
a r r e s t and w h e t h e r she was t e s t i f y i n g i n an e f f o r t t o h e l p h e r
h u s b a n d . "
632 So. 2d a t 555.
I n h i s p e t i t i o n , G a r n e r q u o t e s t h e f o l l o w i n g r e a s o n i n g o f
t h e C o u r t o f C r i m i n a l A p p e a l s i n G r i m s l e y :
" ' " [ W ] h e n e v e r a p r o s e c u t i o n w i t n e s s may be
b i a s e d i n f a v o r o f t h e p r o s e c u t i o n
b e c a u s e
o f o u t s t a n d i n g c r i m i n a l c h a r g e s o r b e c a u s e
o f any n o n - f i n a l
d i s p o s i t i o n
a g a i n s t
h i m
w i t h i n t h e same j u r i s d i c t i o n , t h a t p o s s i b l e
b i a s ,
i n f a i r n e s s , must be made known t o
t h e
j u r y . . . . [ T ] h e w i t n e s s
may
hope f o r
f a v o r a b l e t r e a t m e n t
f r o m t h e p r o s e c u t o r i f
t h e
w i t n e s s
p r e s e n t l y
t e s t i f i e s
i n a way
t h a t i s h e l p f u l t o t h e p r o s e c u t i o n . And i f
t h a t
p o s s i b i l i t y
e x i s t s ,
t h e j u r y
s h o u l d
know a b o u t
i t . " '
" ' " ' I t
i s
g e n e r a l l y
h e l d ,
e v e n i n j u r i s d i c t i o n s where
s u c h
e v i d e n c e
i s
n o t
o r d i n a r i l y
a d m i s s i b l e ,
t h a t t h e f a c t
t h a t a
w i t n e s s
h a s
b e e n
a r r e s t e d
o r
c h a r g e d
w i t h
c r i m e may be
shown
o r
i n q u i r e d
i n t o where i t w o u l d
r e a s o n a b l y
t e n d t o show t h a t h i s
t e s t i m o n y
m i g h t be i n f l u e n c e d b y
i n t e r e s t ,
b i a s ,
o r a m o t i v e
t o
t e s t i f y
f a l s e l y .
T h i s
p r i n c i p l e
has b e e n h e l d a p p l i c a b l e i n c a s e s
where
c r i m i n a l
c h a r g e s
a r e
p e n d i n g i n t h e same c o u r t
a g a i n s t
a w i t n e s s
f o r t h e p r o s e c u t i o n i n
a
c r i m i n a l c a s e
a t t h e t i m e
he
t e s t i f i e s ,
as
a
c i r c u m s t a n c e
t e n d i n g
t o
show
t h a t
h i s
t e s t i m o n y i s o r may be i n f l u e n c e d
by t h e e x p e c t a t i o n o r hope
t h a t ,
by
a i d i n g i n t h e c o n v i c t i o n o f
t h e
d e f e n d a n t ,
he
w o u l d
be
g r a n t e d
i m m u n i t y o r r e w a r d e d b y
9
1081702
l e n i e n c y
i n t h e d i s p o s i t i o n
o f
h i s
own
c a s e . B u t i t h a s b e e n
h e l d t h a t t h e p e n d e n c y o f c h a r g e s
a g a i n s t
t h e w i t n e s s i n a n o t h e r
c o u n t y o r j u r i s d i c t i o n c a n n o t be
shown
u n d e r
t h i s
t h e o r y
o f
a d m i s s i b i l i t y . ' " ' "
G r i m s l e y , 632 So. 2d a t 553 ( e m p h a s i s
a d d e d ) .
1
G a r n e r
a r g u e s
t h a t
u n d e r
G r i m s l e y he was
e n t i t l e d t o
q u e s t i o n Pompey t o d e t e r m i n e i f
Pompey was h o p i n g
t h a t h i s
t e s t i m o n y f o r t h e S t a t e i n G a r n e r ' s
c a s e m i g h t
h e l p h i m i n
o t h e r c a s e s p e n d i n g a g a i n s t h i m , r e g a r d l e s s o f w h e t h e r Pompey
and t h e S t a t e h a d s p e c i f i c a l l y d i s c u s s e d t h a t
p o s s i b i l i t y .
G a r n e r
a l l e g e s i n h i s p e t i t i o n
t h a t , i n a f f i r m i n g t h e
t r i a l
c o u r t ' s r u l i n g e x c l u d i n g any t e s t i m o n y by Pompey r e g a r d i n g
t h e
c r i m i n a l
c h a r g e s
p e n d i n g
a g a i n s t h i m u n r e l a t e d t o G a r n e r ' s
c a s e , t h e C o u r t o f C r i m i n a l A p p e a l s ' dec i s i o n
c o n f l i c t s
w i t h
G r i m s l e y .
I n
p a r t i c u l a r ,
G a r n e r
a l l e g e s
t h a t
G r i m s l e y
c o n f l i c t s
w i t h t h e f o l l o w i n g
s t a t e m e n t
i n t h e u n p u b l i s h e d
memorandum o f t h e C o u r t o f C r i m i n a l
A p p e a l s
i n t h i s
c a s e :
"What Pompey may have p e r s o n a l l y b e l i e v e d o r h o p e d f o r w o u l d
h a v e
b e e n
a
m a t t e r
l e f t
t o t h e
j u r y ' s
d e t e r m i n a t i o n i n
1 I n h i s
p e t i t i o n , G a r n e r i n d i c a t e d t h a t t h e f i r s t o f t h e s e
q u o t e d p a r a g r a p h s was an e x c e r p t f r o m G r i m s l e y , b u t he f a i l e d
t o
i n d i c a t e t h a t t h e s e c o n d p a r a g r a p h , w h i c h he a l s o
i n c l u d e d
i n h i s p e t i t i o n , was l i k e w i s e e x c e r p t e d f r o m G r i m s l e y .
10
1081702
w e i g h i n g t h e t e s t i m o n y p u r s u a n t t o t h e t r i a l c o u r t ' s c h a r g e as
t o
b i a s . "
G a r n e r h a s d e m o n s t r a t e d a c o n f l i c t w i t h G r i m s l e y .
U n d e r
G r i m s l e y , he h a s a r i g h t t o d e m o n s t r a t e t o t h e j u r y
w h e t h e r
Pompey h o p e d t o g a i n
f a v o r a b l e
t r e a t m e n t
on c h a r g e s
p e n d i n g
a g a i n s t h i m i n t h e same j u r i s d i c t i o n b y t e s t i f y i n g i n a way
t h a t was h e l p f u l t o t h e p r o s e c u t i o n .
G r i m s l e y , 632 So. 2d a t
553.
I n a f f i r m i n g t h e t r i a l
c o u r t ' s r u l i n g r e g a r d i n g
G a r n e r ' s
q u e s t i o n i n g o f Pompey, t h e C o u r t o f C r i m i n a l A p p e a l s r e l i e d i n
p a r t on R e e v e s v . S t a t e , 807 So. 2d 18 ( A l a . C r i m . App. 2 0 0 0 ) .
I n R e e v e s , t h e C o u r t o f C r i m i n a l A p p e a l s h e l d t h a t a c r i m i n a l
d e f e n d a n t d i d n o t have t h e r i g h t t o q u e s t i o n
a w i t n e s s t o
e s t a b l i s h t h a t t h e w i t n e s s was b i a s e d b y t h e hope o f f a v o r a b l e
t r e a t m e n t
on
c h a r g e s
p e n d i n g
a g a i n s t
t h e
w i t n e s s
i n a
d i f f e r e n t
j u r i s d i c t i o n ,
u n l e s s
t h e r e c o r d
c o n t a i n e d
some
i n d e p e n d e n t i n d i c a t i o n t h a t s u c h a b i a s m i g h t e x i s t
( s u c h as
a
f a c t u a l
r e l a t i o n
b e t w e e n t h e o f f e n s e s
o r e v i d e n c e o f an
a g r e e m e n t
b e t w e e n
t h e S t a t e
and t h e w i t n e s s
w h e r e b y t h e
w i t n e s s w o u l d t e s t i f y i n e x c h a n g e f o r
l e n i e n c y ) .
R e e v e s , 807
So. 2d a t 38-39.
F u r t h e r , i n R e e v e s , t h e C o u r t o f C r i m i n a l
A p p e a l s
n o t e d
t h a t
t h e
r e c o r d
c o n t a i n e d
some
e v i d e n c e
i n d i c a t i n g
t h a t
t h e w i t n e s s
was
n o t
b i a s e d
b e c a u s e h i s
11
1081702
t e s t i m o n y was s u b s t a n t i a l l y t h e same as a s t a t e m e n t he gave
p o l i c e b e f o r e he was c h a r g e d w i t h t h e u n r e l a t e d o f f e n s e s . 807
So. 2d a t 39.
G a r n e r
does n o t d i s t i n g u i s h
R e e v e s o r a r g u e t h a t R e e v e s
s h o u l d be o v e r r u l e d .
H o w e v e r , he h a s d e m o n s t r a t e d
a c o n f l i c t
w i t h G r i m s l e y and a l i k e l i h o o d o f s u c c e s s on t h e m e r i t s u n d e r
G r i m s l e y .
The f a c t s o f t h i s c a s e p r e s e n t an o p p o r t u n i t y t o
c l a r i f y
t h e s c o p e o f G r i m s l e y
a n d R e e v e s
and t o
c l e a r l y
e s t a b l i s h
t h e p r o p e r
b a l a n c e
b e t w e e n
a
d e f e n d a n t ' s
S i x t h
Amendment r i g h t t o c r o s s - e x a m i n a t i o n and t h e n e e d t o p r e c l u d e
i r r e l e v a n t p r e j u d i c i a l e v i d e n c e o f a w i t n e s s ' s p r i o r b a d a c t s .
F o r t h e s e r e a s o n s , I r e s p e c t f u l l y d i s s e n t f r o m t h e d e n i a l
o f t h e p e t i t i o n t o r e v i e w t h e c o n f l i c t b e t w e e n t h e d e c i s i o n o f
t h e C o u r t o f C r i m i n a l A p p e a l s i n G a r n e r ' s
c a s e and G r i m s l e y .
As t o a l l
o t h e r g r o u n d s a s s e r t e d i n
t h e p e t i t i o n , I a g r e e
t h a t
r e v i e w i s n o t w a r r a n t e d .
M u r d o c k , J . , c o n c u r s .
12 | November 6, 2009 |
0c28d120-83c2-4d75-8d30-952c2ca8f8f4 | Helen Kathryn Wheeler et al. v. Randall L. George et al. | N/A | 1070484 | Alabama | Alabama Supreme Court | REL: 12/04/2009
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Decisions,
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A p p e l l a t e
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b e f o r e t h e
o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1070484
Helen Kathryn Wheeler e t a l .
v.
R a n d a l l L. George e t a l .
1070487
Southdale, LLC
v.
R a n d a l l L. George e t a l .
1070514
Todd Strange
v.
Helen Kathryn Wheeler e t a l .
Appeals from Montgomery C i r c u i t
Court
(CV-04-1434)
On A p p l i c a t i o n s f o r R e h e a r i n g
LYONS, J u s t i c e .
The
o p i n i o n
o f J u l y 17, 2009, i s w i t h d r a w n , a n d t h e
f o l l o w i n g i s s u b s t i t u t e d
t h e r e f o r .
H e l e n
K a t h r y n W h e e l e r a n d W i l l i a m Newton
P h i l l i p s ,
as
t r u s t e e u n d e r t h e D o r i s R.H. P h i l l i p s
R e v o c a b l e L i v i n g
T r u s t
A g r e e m e n t d a t e d F e b r u a r y 2 1 , 2001 ( " W h e e l e r / P h i l l i p s " ) , a n d
S o u t h d a l e , L L C ,
t h e p l a i n t i f f s i n
t h e t r i a l c o u r t , a p p e a l f r o m
summary j u d g m e n t s e n t e r e d
i n f a v o r o f a l l
t h e a p p e l l e e s i n
c a s e no. 1070484 a n d c a s e no. 1 0 7 0 4 8 7 , t h e d e f e n d a n t s i n t h e
t r i a l
c o u r t .
Those a p p e l l e e s a r e t h e I n d u s t r i a l D e v e l o p m e n t
B o a r d
o f t h e C i t y o f M o n t g o m e r y
("the I D B " ) ;
Reuben
F.
T h o r n t o n , J r . , i n d i v i d u a l l y a n d as c h a i r m a n o f t h e IDB;
t h e
C i t y o f M o n t g o m e r y ("the
C i t y " ) ; Bobby N. B r i g h t ,
i n d i v i d u a l l y
and as mayor o f t h e C i t y ;
1 M o n t g o m e r y C o u n t y ("the C o u n t y " ) ;
1 B o b b y N. B r i g h t i s no l o n g e r
t h e mayor o f t h e C i t y .
P u r s u a n t t o R u l e 2 5 ( d ) , A l a .
R. C i v . P., h i s s u c c e s s o r ,
Todd
S t r a n g e ,
i s a u t o m a t i c a l l y
s u b s t i t u t e d
as a
p a r t y
i n
h i s
2
1070484;
1070487;
1070514
t h e
M o n t g o m e r y C o u n t y C o m m i s s i o n
("the C o u n t y
C o m m i s s i o n " ) ;
W i l l i a m F. J o s e p h , J r . , i n d i v i d u a l l y
and as c h a i r m a n o f t h e
C o u n t y C o m m i s s i o n ;
t h e A l a b a m a
I n c e n t i v e s F i n a n c e
A u t h o r i t y
("the
A I F A " ) ;
Don
S i e g e l m a n ,
i n d i v i d u a l l y
and
as
f o r m e r
p r e s i d e n t o f t h e A I F A ;
2 H e n r y C. M a b r y
I I I , i n d i v i d u a l l y
and
as f o r m e r s e c r e t a r y o f t h e A I F A ;
3 CSX
T r a n s p o r t a t i o n , I n c . ,
and CSX
R e a l
P r o p e r t y ,
I n c . ("CSX"); D a v i d W.
H e m p h i l l ,
an
a s s i s t a n t
v i c e
p r e s i d e n t
o f CSX
T r a n s p o r t a t i o n ;
J .
R a n d a l l
E v a n s , a v i c e p r e s i d e n t o f CSX T r a n s p o r t a t i o n ; H y u n d a i
M o t o r
M a n u f a c t u r i n g
A l a b a m a ,
LLC,
and
H y u n d a i
M o t o r
A m e r i c a
( " H y u n d a i " ) ;
4
and
Todd
S t r a n g e ,
i n d i v i d u a l l y
and
i n h i s
o f f i c i a l
c a p a c i t y
as
mayor.
S t r a n g e
was
a l s o
s u e d
i n d i v i d u a l l y .
2 I n
h i s
p o s i t i o n
as
g o v e r n o r ,
S i e g e l m a n
s e r v e d
as
p r e s i d e n t
o f t h e A I F A .
See § 41-10-540 e t s e q . , A l a . Code
1975.
3 I n h i s p o s i t i o n as f i n a n c e d i r e c t o r d u r i n g t h e n G o v e r n o r
S i e g e l m a n ' s t e r m , M a b r y s e r v e d as s e c r e t a r y o f t h e A I F A .
See
§ 41-10-540 e t s e q . , A l a . Code
1975.
4 H y u n d a i M o t o r A m e r i c a i s a w h o l l y owned
s u b s i d i a r y
o f
H y u n d a i
M o t o r
Company
and
o p e r a t e s as
i t s U n i t e d
S t a t e s
d i v i s i o n .
H y u n d a i M o t o r M a n u f a c t u r i n g A l a b a m a ,
L L C , i s a l s o
a w h o l l y owned
s u b s i d i a r y
o f H y u n d a i M o t o r Company and
was
d e s i g n a t e d
t o
own
and
o p e r a t e
t h e
A l a b a m a
a u t o m o b i l e -
m a n u f a c t u r i n g
p l a n t .
3
1070484; 1070487; 1070514
o f f i c i a l
c a p a c i t y
as
t h e
c u r r e n t
mayor
o f t h e
C i t y .
5
The
a p p e l l e e s
w i l l
h e r e i n a f t e r
s o m e t i m e s
be
r e f e r r e d
t o
c o l l e c t i v e l y
as
" t h e p r o j e c t
p a r t i c i p a n t s . "
S o u t h d a l e
and
W h e e l e r / P h i l l i p s
a l s o
s u e d
t h e M o n t g o m e r y A r e a
Chamber
o f
Commerce ("the MACOC"); R a n d a l l L. G e o r g e ,
i n d i v i d u a l l y and as
p r e s i d e n t o f t h e MACOC; and D a v i d E c h o l s , a f o r m e r e m p l o y e e o f
t h e
A l a b a m a D e v e l o p m e n t
O f f i c e
("the ADO"), b u t
t h e y
were
d i s m i s s e d by s t i p u l a t i o n and a r e n o t a p p e l l e e s .
I n c a s e
no.
1070514, S t r a n g e
c r o s s - a p p e a l s
f r o m t h e
t r i a l
c o u r t ' s
o r d e r
d e n y i n g h i s m o t i o n t o d i s m i s s .
I n c a s e no. 1070484 and
c a s e
no. 1070487, we
a f f i r m i n p a r t , r e v e r s e
i n p a r t , and remand;
i n c a s e no. 1070514, we
a f f i r m .
I .
F a c t u a l B a c k g r o u n d
and P r o c e d u r a l
H i s t o r y
I n
J u n e
2 0 0 1 ,
a
r e p r e s e n t a t i v e
o f
H y u n d a i ,
a
K o r e a n
a u t o m o b i l e m a n u f a c t u r e r ,
c o n t a c t e d
E c h o l s ,
who
a t t h a t
t i m e
w o r k e d f o r t h e ADO,
e x p r e s s i n g H y u n d a i ' s
i n t e r e s t i n l o c a t i n g
an
a u t o m o b i l e - a s s e m b l y
p l a n t
i n
t h e
U n i t e d
S t a t e s
and
r e q u e s t i n g
i n f o r m a t i o n
r e g a r d i n g
i n c e n t i v e s
and
a v a i l a b l e
l o c a t i o n s
i n
A l a b a m a
t h a t
c o u l d
accommodate
a
l a r g e
a u t o m o b i l e - m a n u f a c t u r i n g f a c i l i t y .
H y u n d a i was c o n s i d e r i n g a t
5 S e e n o t e
1.
4
1070484;
1070487;
1070514
l e a s t two s i t e s i n A l a b a m a - - M o n t g o m e r y and O p e l i k a - - a s w e l l as
s i t e s i n s e v e r a l o t h e r s t a t e s , i n c l u d i n g K e n t u c k y .
H y u n d a i ' s
i d e n t i t y was k e p t s e c r e t
d u r i n g t h e i n i t i a l
n e g o t i a t i o n s .
I n
S e p t e m b e r 2 0 0 1 ,
o f f i c i a l s f r o m t h e C i t y , t h e IDB, t h e C o u n t y
C o m m i s s i o n , and t h e MACOC b e g a n m a k i n g p r e p a r a t i o n s
t o s e c u r e
o p t i o n s
t o p u r c h a s e p r o p e r t y
i n t h e M o n t g o m e r y
a r e a
i n an
e f f o r t
t o
c r e a t e
an
i n c e n t i v e
p a c k a g e
t h e y
h o p e d
w o u l d
p e r s u a d e
H y u n d a i
t o
l o c a t e
i t s p l a n t
n e a r M o n t g o m e r y .
A
s i g n i f i c a n t p a r c e l o f l a n d was an e s s e n t i a l component o f any
i n c e n t i v e p a c k a g e .
B.M.
Ahn,
t h e H y u n d a i
r e p r e s e n t a t i v e
i n
c h a r g e
o f t h e
s i t e
s e l e c t i o n f o r t h e U n i t e d
S t a t e s
p l a n t ,
t e s t i f i e d d u r i n g h i s d e p o s i t i o n
t h a t a c r i t i c a l e l e m e n t o f an
i n c e n t i v e p a c k a g e
o f f e r e d t o an a u t o m o b i l e m a n u f a c t u r e r was
" f r e e
l a n d "
on w h i c h t o l o c a t e
i t s p l a n t .
Ahn
a l s o
s t a t e d
t h a t H y u n d a i h a d no r o l e i n a c q u i r i n g t h e l a n d and t h a t
l a n d
a c q u i s i t i o n f o r an i n c e n t i v e p a c k a g e was t h e r e s p o n s i b i l i t y
o f
t h e
c i t y o r t h e s t a t e p u t t i n g t h e p a c k a g e t o g e t h e r .
O f f i c i a l s
o f
t h e
C i t y ,
t h e C o u n t y
C o m m i s s i o n ,
and
t h e IDB
s i g n e d
a
l e t t e r o f i n t e n t s t a t i n g t h a t t h e y , " i n p a r t n e r s h i p
w i t h
t h e
S t a t e , " w o u l d commit t o p r o v i d e
an i n d u s t r i a l
s i t e a t no
c o s t
t o H y u n d a i .
J o s e p h , as c h a i r m a n o f t h e C o u n t y C o m m i s s i o n ,
was
5
1070484; 1070487; 1070514
r e s p o n s i b l e f o r c o o r d i n a t i n g w i t h C i t y and C o u n t y o f f i c i a l s
t o
d e v e l o p t h e
i n c e n t i v e p a c k a g e o f f e r e d t o H y u n d a i .
The
C i t y
was
t o p r o v i d e
62.5%
o f
t h e
f u n d s t o
p u r c h a s e
t h e p r o p e r t y ;
t h e C o u n t y was
t o p r o v i d e
37.5%
o f t h o s e
f u n d s .
However, t h e o p t i o n a g r e e m e n t s on t h e p a r c e l s o f p r o p e r t y
t h a t
w o u l d
be
i n c l u d e d
i n
t h e
p r o p o s e d H y u n d a i
p l a n t
s i t e
were
a c q u i r e d
by
t h e
IDB.
T h o r n t o n
t e s t i f i e d
t h a t
t h e
IDB's
p r i m a r y r o l e i n i n d u s t r i a l p r o j e c t s i s t o " s e r v e
as t h e
e n t i t y
t h r o u g h w h i c h m o n i e s
f l o w
f o r t h e
p u r c h a s e
o f
l a n d
f o r
t h e
u l t i m a t e use
i n i n d u s t r y . "
He
f u r t h e r s t a t e d t h a t t h e
IDB
i s
i n v o l v e d i n s u c h a p r o c e s s
" t o c o m p l y w i t h
s t a t e and
f e d e r a l
t a x
l a w s
f o r
t h e
t a x
b r e a k s
and
o t h e r
i n c e n t i v e s
t o
t h e
i n d u s t r y . "
O v e r
t h e
c o u r s e
o f
s e v e r a l
m o n t h s ,
t h e
IDB
s e c u r e d
o p t i o n s
on
s i x p a r c e l s
o f p r o p e r t y
f o r t h e
i n d u s t r i a l
s i t e .
A t
t h a t t i m e ,
t h e
IDB
d i d n o t
d i s c l o s e H y u n d a i ' s
i d e n t i t y
t o
t h e
l a n d o w n e r s .
N e i t h e r
W h e e l e r
n o r
P h i l l i p s
r e s i d e d
i n
A l a b a m a ;
t h e y
r e t a i n e d
J e s s e
W i l l i a m s ,
a
l a w y e r
w i t h
t h e
M o n t g o m e r y l a w
f i r m o f R u s h t o n , S t a k e l y , J o h n s t o n &
G a r r e t t ,
P.A.,
t o
r e p r e s e n t
t h e i r
i n t e r e s t s .
I n
S e p t e m b e r
2 0 0 1 ,
T h o r n t o n ,
i n h i s
c a p a c i t y
as
c h a i r m a n
o f
t h e
IDB,
e x e c u t e d
o p t i o n a g r e e m e n t s
on
b e h a l f
o f
t h e
IDB
f o r f o u r
o f
t h e
s i x
6
1070484; 1070487; 1070514
p a r c e l s .
The
IDB
a g r e e d t o p u r c h a s e
a p p r o x i m a t e l y 320
a c r e s
f r o m S o u t h d a l e ; a p p r o x i m a t e l y 807 a c r e s f r o m W h e e l e r / P h i l l i p s ;
a p p r o x i m a t e l y 328
a c r e s f r o m G e o r g e E. R u s s e l l and Thomas E.
R u s s e l l ,
as
c o e x e c u t o r s
and
c o t r u s t e e s
o f
t h e
w i l l
and
t e s t a m e n t a r y
t r u s t o f E a r n e s t W.
R u s s e l l ,
and M y r t i s R u s s e l l
( " t h e
R u s s e l l s " ) ;
and
a p p r o x i m a t e l y
40
a c r e s
f r o m
J o h n
C.
P a r k e r
and
E u g e n i a
M.
P a r k e r
( " t h e
P a r k e r s " ) .
These
a g r e e m e n t s p r o v i d e d f o r an o p t i o n p e r i o d o f 120 d a y s , and
e a c h
s t a t e d :
"3. I f P u r c h a s e r e l e c t s t o e x e r c i s e t h i s
O p t i o n
t h e
p u r c h a s e
p r i c e
f o r
t h e
P r o p e r t y
s h a l l
be
d e t e r m i n e d
as
f o l l o w s :
" S e l l e r
and
P u r c h a s e r
s h a l l
e a c h ,
a t
i t s
own
c o s t and e x p e n s e , s e c u r e a c u r r e n t a p p r a i s a l o f t h e
P r o p e r t y .
The
p u r c h a s e
p r i c e
s h a l l
be
t h e
a v e r a g e
o f t h e two a p p r a i s a l s p r o v i d e d , h o w e v e r , i n no
e v e n t
s h a l l
t h e
p u r c h a s e
p r i c e
be
l e s s
t h a n $4,500
p e r
a c r e
and
f u r t h e r
p r o v i d e d t h a t t h e p u r c h a s e
p r i c e
s h a l l
i n no
e v e n t
be
l e s s
t h a n
t h e
p r i c e p e r
a c r e
p a i d t o any o t h e r l a n d o w n e r i n c l u d e d i n t h e
p r o j e c t
p l a n n e d
f o r
t h i s
P r o p e r t y .
The
a c r e a g e
s h a l l
be
d e t e r m i n e d by a g o o d and a c c u r a t e s u r v e y p r o v i d e d by
P u r c h a s e r .
f i
"16.
T h i s
O p t i o n
c o n s t i t u t e s
t h e
e n t i r e
and
c o m p l e t e
a g r e e m e n t b e t w e e n
t h e
p a r t i e s
h e r e t o
and
s u p e r s e d e s
any
p r i o r
o r a l
o r
w r i t t e n
a g r e e m e n t s
b e t w e e n
t h e
p a r t i e s
w i t h r e s p e c t t o t h e
P r o p e r t y .
I t
i s e x p r e s s l y a g r e e d
t h a t
t h e r e
a r e
no
v e r b a l
u n d e r s t a n d i n g s o r a g r e e m e n t s w h i c h i n any way
c h a n g e
t h e
t e r m s ,
c o v e n a n t s ,
and
c o n d i t i o n s h e r e i n
s e t
7
1070484; 1070487; 1070514
f o r t h , and t h a t no m o d i f i c a t i o n o f t h i s O p t i o n and
no w a i v e r o f any o f i t s t e r m s and c o n d i t i o n s
s h a l l
be
e f f e c t i v e
u n l e s s
made
i n
w r i t i n g
and
d u l y
e x e c u t e d by t h e p a r t i e s
h e r e t o . "
( E m p h a s i s a d d e d . )
The p a r t i e s r e f e r t o t h e p r o v i s i o n i n
t h e
o p t i o n a g r e e m e n t s t h a t " t h e p u r c h a s e p r i c e s h a l l i n no e v e n t
be
l e s s t h a n t h e p r i c e p e r a c r e
p a i d t o a n y o t h e r
l a n d o w n e r
i n c l u d e d i n t h e p r o j e c t p l a n n e d f o r
t h e P r o p e r t y " as a "most-
f a v o r e d - n a t i o n
c l a u s e . "
The
p u r p o s e
o f t h e
c l a u s e ,
as
e x p l a i n e d b y W h e e l e r / P h i l l i p s and S o u t h d a l e , was t o e n s u r e
t h a t
a l l l a n d o w n e r s
c o n v e y i n g
p r o p e r t y
t o be u s e d f o r
t h e
p r o j e c t w o u l d r e c e i v e t h e same p r i c e so t h a t no one p a r c e l o f
l a n d w o u l d be w o r t h more t h a n any o t h e r
p a r c e l .
The m o s t -
f a v o r e d - n a t i o n
c l a u s e
a l l o w e d
A l a b a m a
o f f i c i a l s
t o
o b t a i n
c o n t r o l o f t h e n e e d e d
l a n d
q u i c k l y , b e c a u s e l a n d o w n e r s who
e x e c u t e d
o p t i o n
a g r e e m e n t s
e a r l y i n t h e a c q u i s i t i o n p e r i o d
were a s s u r e d
t h a t t h e y w o u l d n o t r e c e i v e l e s s t h a n a l a n d o w n e r
who m i g h t
h o l d o u t u n t i l
t h e d e a d l i n e
i n o r d e r
t o s e e k a
h i g h e r
p r i c e .
O f f i c i a l s i n K e n t u c k y were h a v i n g
d i f f i c u l t y
s e c u r i n g t h e l a n d n e e d e d f o r t h e p r o p o s e d
s i t e i n K e n t u c k y
b e c a u s e some l a n d o w n e r s were n e g o t i a t i n g f o r a h i g h e r
s a l e s
p r i c e b y r e f u s i n g t o e x e c u t e
o p t i o n
a g r e e m e n t s
b e f o r e t h e
d e a d l i n e f o r s u b m i t t i n g t h e i n c e n t i v e p a c k a g e .
A t t h e t i m e
8
1070484; 1070487; 1070514
t h e
o p t i o n a g r e e m e n t s were b e i n g
e n t e r e d
i n t o
i n A l a b a m a ,
l a w s u i t s
had
a l r e a d y b e e n
f i l e d
i n K e n t u c k y
c o n c e r n i n g
t h e
l a n d a c q u i s i t i o n f o r t h e p r o p o s e d
s i t e t h e r e .
I n e a r l y 2 0 0 2 , S o u t h d a l e , W h e e l e r / P h i l l i p s , t h e R u s s e l l s ,
and t h e P a r k e r s amended t h e i r o p t i o n a g r e e m e n t s t o e x t e n d t h e
o p t i o n p e r i o d t o May
3 1 , 2 0 0 2 .
E a c h amended o p t i o n a g r e e m e n t
s t a t e d :
" 1 . I t i s h e r e b y a g r e e d t h a t t h e p u r c h a s e
p r i c e
f o r t h e P r o p e r t y i s F o u r T h o u s a n d F i v e H u n d r e d
and
No/100
D o l l a r s
( $ 4 , 5 0 0 . 0 0 ) p e r
a c r e .
The
e x a c t
number
o f
a c r e s
t o
be
d e t e r m i n e d
by
t h e
s u r v e y
p r o v i d e d by
P u r c h a s e r .
"2. The
o p t i o n p e r i o d i s h e r e b y e x t e n d e d
f o r a
p e r i o d
o f 120
d a y s f r o m
t h e
E f f e c t i v e
Date o f
t h e
O p t i o n , w h i c h
E f f e c t i v e
D a t e
i s O c t o b e r
3 ,
2 0 0 1 .
The
e x p i r a t i o n d a t e o f t h e O p t i o n , as e x t e n d e d , i s
now
May
3 1 , 2002.
"3. E x c e p t as amended h e r e b y , t h e O p t i o n i s i n
a l l
o t h e r r e s p e c t s r a t i f i e d and
c o n f i r m e d . "
The
amended
o p t i o n s
were
e x e c u t e d
by
S o u t h d a l e
and
W h e e l e r / P h i l l i p s
on
J a n u a r y
3 1 ,
2002;
by
t h e
P a r k e r s
on
F e b r u a r y 1 , 2002; and by t h e R u s s e l l s on F e b r u a r y 4, 2002.
On F e b r u a r y 22 and M a r c h 8, 2 0 0 2 , r e s p e c t i v e l y ,
T h o r n t o n
e x e c u t e d two a d d i t i o n a l o p t i o n a g r e e m e n t s on b e h a l f o f t h e
IDB
t o p u r c h a s e
a p p r o x i m a t e l y 54 a c r e s f r o m P r i c e M c L e m o r e , M a r y
H. McLemore, J o h n M c I n n i s , J r . , T i m o t h y N. M c I n n i s , C h a r l e s R.
9
1070484; 1070487; 1070514
M c I n n i s ,
W i l l i a m s S. N e w e l l , a n d t h e P e o p l e s
Bank a n d T r u s t
Company, as t r u s t e e f o r t h e
A d a l i n e H o o p e r T r u s t A a n d
B
("the
McLemore
g r o u p " ) ,
a n d a p p r o x i m a t e l y
83 a c r e s
f r o m
P e l z e r
Homes, I n c . The t e r m s o f t h e o p t i o n a g r e e m e n t s , e x e c u t e d i n
e a r l y
2 0 0 2 ,
a r e
i d e n t i c a l
t o t h e t e r m s
o f t h e
o p t i o n
a g r e e m e n t s e x e c u t e d i n
S e p t e m b e r 2 0 0 1 . The IDB l a t e r
a s s i g n e d
i t s r i g h t s u n d e r a l l
t h e
o p t i o n a g r e e m e n t s t o
t h e C i t y a n d t h e
C o u n t y .
D u r i n g
t h e t i m e
i n w h i c h t h e IDB was
a c q u i r i n g t h e
o p t i o n s
f r o m
t h e
s i x
a b o v e - r e f e r e n c e d
l a n d o w n e r s ,
r e p r e s e n t a t i v e s
o f t h e MACOC
a p p r o a c h e d
J o y S h e l t o n ,
a
n e i g h b o r i n g
l a n d o w n e r ,
a b o u t
an
o p t i o n
t o p u r c h a s e h e r
p r o p e r t y ; h o w e v e r , S h e l t o n
d e c l i n e d t o e n t e r
i n t o an o p t i o n
a g r e e m e n t .
Sometime d u r i n g F e b r u a r y 2002, H y u n d a i i n q u i r e d
o f
C i t y a n d C o u n t y
o f f i c i a l s
w h e t h e r i t
w o u l d be p o s s i b l e t o
" s q u a r e o f f "
t h e p r o p e r t y made a v a i l a b l e f o r
t h e p o t e n t i a l
p l a n t
s i t e .
E l l e n M c N a i r , an e m p l o y e e o f t h e
MACOC, met w i t h
S h e l t o n t o a s k w h e t h e r h e r p r o p e r t y was f o r
s a l e a n d w h e t h e r
she w o u l d a c c e p t a p u r c h a s e p r i c e o f $4,500 p e r a c r e .
M c N a i r
s a i d t h a t S h e l t o n was i n t e r e s t e d i n s e l l i n g b u t t h a t she w o u l d
n o t
s e l l f o r
t h a t
p r i c e .
M c N a i r made a d d i t i o n a l
t e l e p h o n e
c a l l s t o S h e l t o n , b u t S h e l t o n c o n t i n u e d t o r e f u s e t o s e l l h e r
10
1070484;
1070487;
1070514
p r o p e r t y .
By m i d M a r c h 2002, t h e IDB d e c i d e d t h a t t h e
S h e l t o n
p r o p e r t y
was
n o t n e c e s s a r y f o r t h e
i n c e n t i v e p a c k a g e .
I n
a d d i t i o n ,
o f f i c i a l s
f o r t h e
C i t y
and
t h e
C o u n t y ,
a l r e a d y
c o m m i t t e d
t o
s p e n d i n g
$16
m i l l i o n
and
$9
m i l l i o n ,
r e s p e c t i v e l y ,
d e c i d e d
t h a t
t h e y
w o u l d
n o t
d e s i g n a t e
any
a d d i t i o n a l
f u n d s f o r t h e p u r c h a s e o f l a n d
f o r t h e p r o p o s e d
s i t e .
The
C i t y and t h e C o u n t y C o m m i s s i o n
t h e n p r e s e n t e d an
i n c e n t i v e
p a c k a g e ,
i n c l u d i n g
t h e p r o p o s e d
p l a n t
s i t e
n e a r
M o n t g o m e r y
c o n s i s t i n g o f t h e a c r e a g e
s u b j e c t
t o t h e
o p t i o n
a g r e e m e n t s ,
t o H y u n d a i
f o r c o n s i d e r a t i o n .
The
S t a t e
a l s o
d r a f t e d
and
a s s e m b l e d
an
i n c e n t i v e
p a c k a g e
t h a t
w o u l d
be
o f f e r e d t o H y u n d a i i f i t c h o s e t o b u i l d i t s
p l a n t i n A l a b a m a ,
e i t h e r i n M o n t g o m e r y o r i n O p e l i k a .
On t h e e v e n i n g o f M a r c h 28, 2002, Ahn t e l e p h o n e d S t r a n g e ,
who
was
a t
t h a t
t i m e t h e
d i r e c t o r o f t h e ADO.
Ahn
t o l d
S t r a n g e t h a t H y u n d a i was i n t h e p r o c e s s o f d e c i d i n g w h e t h e r t o
l o c a t e
i t s U n i t e d
S t a t e s
p l a n t
i n A l a b a m a
o r K e n t u c k y ,
a
d e c i s i o n i t w o u l d a n n o u n c e
on A p r i l
1.
He i n f o r m e d S t r a n g e
t h a t H y u n d a i w o u l d n e e d
a d d i t i o n a l p r o p e r t y
f o r t h e
r a i l w a y
a c c e s s H y u n d a i d e s i r e d i f M o n t g o m e r y were t o be s e l e c t e d f o r
t h e p r o j e c t
s i t e and t h a t i f t h e a d d i t i o n a l l a n d c o u l d n o t be
a c q u i r e d ,
"you m i g h t l o s e t h e d e a l . "
The a d d i t i o n a l
p r o p e r t y
11
1070484; 1070487; 1070514
H y u n d a i was
r e q u e s t i n g
was
t h e
l a n d owned by
S h e l t o n .
Ahn
i n f o r m e d
S t r a n g e t h a t he w o u l d n e e d t o know by noon t h e
n e x t
day w h e t h e r t h e
a d d i t i o n a l p r o p e r t y
c o u l d be
a c q u i r e d .
S t r a n g e
met
d u r i n g
t h e
l a t e
e v e n i n g
h o u r s
o f M a r c h
28
w i t h G e o r g e , M c N a i r , E c h o l s , S t e v e Cawood (an e n g i n e e r
w o r k i n g
on t h e p r o j e c t ) , and Buddy M o r g a n ( c h a i r m a n o f t h e W a t e r Works
and S a n i t a r y Sewer B o a r d o f t h e C i t y o f M o n t g o m e r y ) t o d i s c u s s
H y u n d a i ' s r e q u e s t .
The g r o u p a l s o c o n s u l t e d by t e l e p h o n e
w i t h
S c o t t A b n e y , a l a w y e r w i t h t h e B i r m i n g h a m l a w f i r m o f M a y n a r d ,
C o o p e r
&
G a l e ,
P.C.,
who
had
b e e n
h i r e d
t o
a d v i s e
t h e n
G o v e r n o r S i e g e l m a n and t h e n F i n a n c e
D i r e c t o r M a b r y .
The
g r o u p
m e e t i n g w i t h S t r a n g e r e c o g n i z e d
t h a t t h e
C i t y and
t h e
C o u n t y
w o u l d n o t make any a d d i t i o n a l f u n d s a v a i l a b l e f o r t h e p u r c h a s e
o f
l a n d and
t h a t
t h e
s i x o p t i o n a g r e e m e n t s a l r e a d y
a c q u i r e d
c o n t a i n e d m o s t - f a v o r e d - n a t i o n
c l a u s e s .
G e o r g e t e s t i f i e d
t h a t
t h e m o s t - f a v o r e d - n a t i o n
c l a u s e was
d i s c u s s e d .
"But
t h a t
e v e n i n g
on
t h e
2 8 t h ,
i t
w a s - - i t
was
m e n t i o n e d i n t h e c o n t e x t t h a t i f we
as l o c a l s b o u g h t
i t ,
i t c o u l d b e - - i t
c o u l d be
a p r o b l e m . "
S t r a n g e
t e s t i f i e d
t h a t he
l e a r n e d o f t h e
m o s t - f a v o r e d - n a t i o n
c l a u s e
d u r i n g
t h a t
m e e t i n g .
The
g r o u p
d i s c u s s e d
w h e t h e r
h a v i n g
CSX
p u r c h a s e t h e
l a n d w o u l d t r i g g e r t h e
m o s t - f a v o r e d -
12
1070484; 1070487; 1070514
n a t i o n c l a u s e , o r w h e t h e r a p u r c h a s e b y CSX w o u l d be
s e p a r a t e
f r o m t h e o t h e r o p t i o n s .
S t r a n g e
t e s t i f i e d :
" I t was o u r u n d e r s t a n d i n g t h a t i f CSX w o u l d
p u r c h a s e
t h e p r o p e r t y , t h a t t h e y w o u l d n o t be a p a r t y t o t h e
o r i g i n a l p u r c h a s e
and t h e r e f o r e i t w o u l d be o u t s i d e
t h a t a g r e e m e n t . "
S t r a n g e
l e f t t h e m e e t i n g and t e l e p h o n e d a r e p r e s e n t a t i v e
o f CSX t o d i s c u s s w h e t h e r CSX w o u l d be w i l l i n g t o p u r c h a s e
t h e
a d d i t i o n a l p r o p e r t y b e c a u s e Ahn
had
s t a t e d t h a t t h e p r o p e r t y
w o u l d be n e c e s s a r y f o r r a i l w a y s e r v i c e .
CSX's r e p r e s e n t a t i v e
i n
B i r m i n g h a m ,
J o h n
S a n f o r d ,
a d v i s e d
S t r a n g e
t o
c o n t a c t
H e m p h i l l , an a s s i s t a n t v i c e p r e s i d e n t i n CSX's I n d u s t r i a l
and
E c o n o m i c D e v e l o p m e n t D e p a r t m e n t .
B e c a u s e
H e m p h i l l was
n o t
a v a i l a b l e when S t r a n g e p l a c e d h i s t e l e p h o n e c a l l , S t r a n g e
l e f t
a message and t h e n t e l e p h o n e d H e m p h i l l ' s s u p e r i o r , E v a n s ,
t h e
v i c e p r e s i d e n t f o r CSX i n c h a r g e o f r e a l - e s t a t e and
i n d u s t r i a l
d e v e l o p m e n t .
A c c o r d i n g
t o
E v a n s ,
S t r a n g e
t o l d
h i m
t h a t
H y u n d a i
had
made
a
l a s t - m i n u t e
c h a n g e
i n
t h e
r a i l
c o n f i g u r a t i o n
and
a s k e d
h i m w h e t h e r
CSX
c o u l d p u r c h a s e
t h e
a d d i t i o n a l p r o p e r t y r e q u i r e d i f t h e S t a t e r e i m b u r s e d CSX
f o r
t h e amount o f t h e p u r c h a s e .
E v a n s t e s t i f i e d t h a t he d i d n o t
q u e s t i o n why
S t r a n g e w a n t e d CSX
t o p u r c h a s e
t h e p r o p e r t y i f
CSX were g o i n g t o be r e i m b u r s e d by t h e S t a t e f o r t h e
p u r c h a s e
13
1070484; 1070487; 1070514
and
t h a t h i s o n l y c o n c e r n
a t t h e t i m e was
e n s u r i n g t h a t
CSX
w o u l d
be
r e i m b u r s e d
i f i t p a r t i c i p a t e d
i n
t h e
p u r c h a s e .
G e o r g e t e s t i f i e d t h a t S t r a n g e t h e n r e t u r n e d t o t h e m e e t i n g
and
a n n o u n c e d
t o
t h o s e
p r e s e n t ,
" i t ' s h a n d l e d "
and
"CSX
w o u l d
accommodate o u r n e e d . "
S t r a n g e
t h e n t e l e p h o n e d Ahn
i n K o r e a
and
t o l d h i m t h a t o b t a i n i n g t h e a d d i t i o n a l l a n d n e c e s s a r y
t o
accommodate
H y u n d a i
" a p p e a r e d
t h a t
i t w o u l d
be
a
d o a b l e
s i t u a t i o n . "
L a t e r i n t h e e v e n i n g , a f t e r s p e a k i n g w i t h S a n f o r d
and
E v a n s ,
H e m p h i l l
r e t u r n e d
S t r a n g e ' s
t e l e p h o n e
c a l l ,
and
t h e y had a f u r t h e r d i s c u s s i o n r e g a r d i n g CSX's p u r c h a s e
o f t h e
a d d i t i o n a l
l a n d .
On M a r c h 29, 2002, H e m p h i l l s e n t t h e f o l l o w i n g e - m a i l
t o
E c h o l s :
" R e g a r d i n g
t h e [ S h e l t o n p r o p e r t y ] t h a t w i l l n e e d t o
be p u r c h a s e d ,
you
a s k e d
i f CSX
w o u l d be
w i l l i n g
t o
buy
t h i s
p r o p e r t y
f o r t h e
S t a t e and M o n t g o m e r y
a t
a p p r o x i m a t e l y
$8,000.00
an
a c r e .
T h e r e
i s
no
c o n t r a c t o r o p t i o n on t h e p r o p e r t y c u r r e n t l y and
you
e s t i m a t e
i t w i l l
c o s t us
a p p r o x i m a t e l y
$750,000.00
w h i c h
you
a r e
w i l l i n g
t o
r e f u n d
t o
us
i n
some
f a s h i o n d u r i n g t h e t r a c k c o n s t r u c t i o n p h a s e .
Randy
E v a n s ,
i n p r i n c i p l e
a g r e e d
t o
t h i s
and
I a s k
t h a t
you f a x us a l e t t e r
o u t l i n i n g e x a c t l y what you h a v e
i n m i n d .
The
p u r p o s e
o f d o i n g
i t t h i s
way
r a t h e r
t h a n what you
d i d i n g e t t i n g
c o n t r o l
o f t h e
o t h e r
1600
a c r e s i s t o a v o i d p a y i n g
t h e o t h e r
l a n d o w n e r s
$8,000.00 an a c r e w h i c h w o u l d h a v e a n e g a t i v e
i m p a c t
o f
$10,000,000.00 on
t h e
s i t e
c o s t .
The
r a i l r o a d
d o e s n o t
g e t g o o d l a n d v a l u e s
i n a
s i t u a t i o n
l i k e
t h i s and so I t h i n k t h e r e w i l l be u p w a r d p r e s s u r e
on
14
1070484; 1070487; 1070514
t h a t $8,000 number.
M o r e o v e r , t h e o t h e r
l a n d o w n e r s
w i l l g e t w i n d o f t h i s p l o y a n d may c r e a t e
n e g a t i v e
c o m m u n i t y p u b l i c i t y .
...
I n y o u r
l e t t e r t o us we
w o u l d a s k t h a t you i n d i c a t e
e x a c t l y how you i n t e n d
t o p a y us d u r i n g t h e t r a c k w o r k c o n s t r u c t i o n . "
The
H e m p h i l l
e - m a i l
shows a c o p y t o S t r a n g e ,
b u t
S t r a n g e
t e s t i f i e d
t h a t he d i d n o t s e e t h e e - m a i l
u n t i l
a f t e r t h e
a c t i o n h a d b e e n
f i l e d i n t h i s
c a s e .
However, E c h o l s
s t a t e d
t h a t he a s k e d
S t r a n g e t o r e s p o n d t o H e m p h i l l ' s
e - m a i l w i t h a
l e t t e r ,
w h i c h S t r a n g e
d r a f t e d a n d s e n t .
When a s k e d why CSX
went
a l o n g
w i t h t h e p l a n
f o r i t t o p u r c h a s e
t h e
S h e l t o n
p r o p e r t y ,
H e m p h i l l
t e s t i f i e d t h a t i t
d i d so b e c a u s e CSX was
c o n c e r n e d
t h a t
i f i t d i d n o t go
a l o n g
w i t h
t h e
p l a n ,
M o n t g o m e r y c o u l d l o s e t h e p r o j e c t , and CSX w o u l d t h e r e b y
l o s e
t h e p o t e n t i a l f o r
e x t e n s i v e r a i l w a y b u s i n e s s w i t h H y u n d a i .
On M a r c h 29, 2002, S t r a n g e
f a x e d H e m p h i l l t h e f o l l o w i n g
l e t t e r :
" L a s t
e v e n i n g ,
T h u r s d a y ,
M a r c h 28, 2002, a t 6:05
p.m.
C e n t r a l S t a n d a r d
Time, I r e c e i v e d a c a l l
f r o m
Mr. B.M. Ahn, P r e s i d e n t H y u n d a i M o t o r Company, U.S.
f r o m
S e o u l ,
K o r e a .
He
t o l d me
t h e y
were i n t h e
f i n a l
s t a g e s
o f t h e d e c i s i o n a n d n e e d e d t o make
m o d i f i c a t i o n s
t o
t h e i r
M o n t g o m e r y
s i t e
l a y o u t
b e c a u s e t h e CSX R a i l r o a d y a r d e s t i m a t e h a d come i n
e x t r e m e l y
h i g h .
I n t h e i r ( H y u n d a i ' s )
r e d e s i g n , he
w a n t e d t o do p a r a l l e l t r a c k s r u n n i n g n o r t h and s o u t h
on t h e e a s t e r n s i d e o f t h e p r o p e r t y b o u n d a r y .
H i s
e n g i n e e r s
t o l d h i m he w o u l d n o t h a v e enough
room
u n l e s s
[ a d d i t i o n a l
p r o p e r t y w a s ] o b t a i n e d
i n t h e
s o u t h e a s t c o r n e r o f t h e q u a d r a n t .
T h i s p r o p e r t y h a d
15
1070484; 1070487; 1070514
b e e n
d i s c u s s e d
a
c o u p l e
o f months
ago
b u t
we
had
b e e n t o l d as r e c e n t l y as two weeks ago
t h a t i t w o u l d
n o t be n e c e s s a r y .
So a c c o r d i n g l y , we d i d n o t p u r s u e
any
o p t i o n s .
...
"As
I
i n d i c a t e d
t o
you
l a s t
n i g h t ,
o u r
o p t i o n
a g r e e m e n t s h a v e a 'most f a v o r e d n a t i o n ' c l a u s e where
we a g r e e d t o p a y
no more f o r any
one
p a r c e l t h a n
any
o f
t h e
o t h e r
p a r c e l s .
A c c o r d i n g l y ,
I a s s e m b l e d
a
w o r k i n g
g r o u p
o f
t h e
l o c a l
Chamber
o f
Commerce
e x e c u t i v e s ,
e n g i n e e r i n g
e x p e r t i s e , Dave E c h o l s
and
m y s e l f .
We
d e c i d e d
t h e most a p p r o p r i a t e
c o u r s e
t o
f o l l o w w o u l d be
t o
a s k
CSX
t o
o b t a i n
a p a r c e l
f o r
r a i l
a c c e s s
t o
k e e p
i t
o u t s i d e
t h e
p r o j e c t
a g r e e m e n t .
As you know CSX's a g r e e m e n t w i t h H y u n d a i
i s
s e p a r a t e
and
t h i s
p r o p e r t y
i n t h e i r
v i e w i s f o r
r a i l
a c c e s s
o n l y .
...
f i
"Dave,
as
you
can
a p p r e c i a t e
t h e r e
a r e
a
l o t
o f
d e t a i l s
t o be w o r k e d o u t , b u t t h e
s p i r i t and
c o n c e p t
i s
f o r CSX
t o
o b t a i n
t h e
n e e d e d
p a r c e l
f o r
r a i l
a c c e s s
and w h a t e v e r t h e p u r c h a s e p r i c e , CSX w o u l d
be
made w h o l e i n a manner we
m u t u a l l y
a g r e e d u p o n . "
S t r a n g e ' s
l e t t e r
i n d i c a t e d
t h a t
c o p i e s
were
s e n t
t o
t h e n
G o v e r n o r S i e g e l m a n , t h e n F i n a n c e
D i r e c t o r M a b r y , A b n e y ,
and
G e o r g e .
On
t h e
m o r n i n g
o f
M a r c h
29,
G e o r g e
a s k e d
t h e n
Mayor
B r i g h t
t o meet w i t h
S h e l t o n
and
h e r
f a m i l y i n an
e f f o r t
t o
o b t a i n an o p t i o n on t h e p r o p e r t y H y u n d a i had
r e q u e s t e d
on
t h e
p r e v i o u s
e v e n i n g .
S h e l t o n ' s
p a r e n t s
knew and
l i k e d
B r i g h t ,
and
he was
s e e n as t h e p e r s o n who
c o u l d most
l i k e l y
p e r s u a d e
S h e l t o n
t o
s e l l h e r
l a n d .
B e f o r e
B r i g h t a g r e e d t o meet
w i t h
16
1070484; 1070487; 1070514
S h e l t o n , he r e i t e r a t e d t o S t r a n g e and o t h e r s t h a t t h e C i t y
and
C o u n t y s t o o d
f i r m i n r e f u s i n g t o pay
a d d i t i o n a l money t o w a r d
t h e p r o j e c t ; B r i g h t was
a s s u r e d
t h a t t h e C i t y and C o u n t y w o u l d
n o t be e x p e c t e d t o c o n t r i b u t e any f u n d s t o w a r d t h e p u r c h a s e o f
t h e S h e l t o n p r o p e r t y and
t h a t t h e o p t i o n w o u l d be a s s i g n e d
t o
e i t h e r CSX
o r t h e
S t a t e .
B r i g h t
t e s t i f i e d
t h a t he a g r e e d
t o
o b t a i n t h e o p t i o n b e c a u s e i t was
" i m p o r t a n t
t o me
t o l e n d
my
c r e d i b i l i t y
t o t h e t r a n s a c t i o n . "
B r i g h t , M c N a i r , and
G e o r g e
met
w i t h
S h e l t o n
and
p r e s e n t e d
h e r
w i t h
an
o p t i o n
a g r e e m e n t
c o n t a i n i n g a b l a n k
l i n e
i n d i c a t i n g t h e p u r c h a s e p r i c e o f
t h e
p r o p e r t y .
S h e l t o n
f i l l e d i n t h e b l a n k w i t h t h e amount $12,000
p e r
a c r e ; B r i g h t e x e c u t e d t h e a s s i g n a b l e
o p t i o n on b e h a l f
o f
t h e C i t y .
S t r a n g e came t o t h e MACOC o f f i c e s t o g e t t h e
o p t i o n
a g r e e m e n t , w h i c h he t h e n f a x e d t o H y u n d a i .
He
d i d n o t
i n f o r m
Ahn
t h a t CSX
was
t o be t h e e n t i t y t h a t a c t u a l l y p u r c h a s e d
t h e
S h e l t o n
p r o p e r t y .
M c N a i r
t e s t i f i e d
t h a t
a f t e r
r e t u r n i n g f r o m m e e t i n g
w i t h
S h e l t o n ,
she
became c o n c e r n e d
t h a t
t h e
m o s t - f a v o r e d - n a t i o n
c l a u s e m i g h t be i m p l i c a t e d as a r e s u l t o f t h e o p t i o n
o b t a i n e d
f r o m
S h e l t o n .
She
i n f o r m e d
Thomas
H.
G a l l i o n
I I I ,
t h e
a t t o r n e y
f o r t h e
IDB,
and
F r a n k M c P h i l l i p s , a n o t h e r
l a w y e r
17
1070484; 1070487; 1070514
w i t h M a y n a r d , C o o p e r & G a l e , P.C.,
a b o u t t h e
S h e l t o n
o p t i o n .
D u r i n g h e r
d e p o s i t i o n , M c N a i r
s t a t e d :
"On
F r i d a y when
...
I came b a c k f r o m v i s i t i n g
w i t h
M r s .
S h e l t o n ,
I c o n t a c t e d
b o t h Mr.
G a l l i o n
and
Mr.
M c P h i l l i p s
[ o n e
o f
t h e
a t t o r n e y s
f o r
t h e
S t a t e
i n v o l v e d
i n t h e
H y u n d a i
p r o j e c t ] .
My
c o n c e r n
was
...
j u s t
t o
l e t them know what
had
h a p p e n e d ,
you
know,
w i t h
T h u r s d a y
n i g h t
b e c a u s e
i t h a p p e n e d
so
f a s t .
T h e y were
n o t
aware
o f
i t u n t i l
a f t e r
t h e
f a c t ,
so I w a n t e d t o
t e l l
them what had
h a p p e n e d .
"But
a l s o I was
j u s t
a
l i t t l e
c o n c e r n e d w i t h [ M a y o r
B r i g h t ]
t a k i n g
o u t
t h e
o p t i o n - - b e c a u s e
he
was
a
l o c a l p e r s o n , and
h i s a c t i o n o f j u s t
t a k i n g o u t
t h e
o p t i o n w h i c h w o u l d be
a s s i g n e d
t o CSX
o r somebody,
t h a t j u s t made me
a
l i t t l e
n e r v o u s .
"So
I
j u s t
s a i d - - y o u
know, I
was,
you
know,
j u s t
c a l l i n g
them
j u s t
t o
be
s u r e
t h a t
t h a t
w o u l d n ' t
t r i g g e r
a n y - - y o u know, we
j u s t
d i d n ' t know w h e t h e r
o r n o t
t h a t w o u l d , and
so I j u s t w a n t e d t o be
s u r e .
So I c o n t a c t e d
b o t h o f them."
On
t h e
m o r n i n g
o f
M a r c h
29,
S t r a n g e
t e l e p h o n e d
t h e n
F i n a n c e D i r e c t o r M a b r y r e g a r d i n g H y u n d a i ' s n e e d f o r
a d d i t i o n a l
l a n d .
M a b r y s a i d
t h a t S t r a n g e t o l d h i m
t h a t CSX
was
w i l l i n g
t o a s s i s t i n t h e p u r c h a s e o f t h e p r o p e r t y
b u t
t h a t i t m i g h t
be
n e c e s s a r y
f o r
t h e
S t a t e
t o
p r o v i d e
f u n d s
t o
p u r c h a s e
t h e
p r o p e r t y .
M a b r y c o n s u l t e d
w i t h t h e n G o v e r n o r S i e g e l m a n ,
who
a p p r o v e d
t h e
use
o f
S t a t e
f u n d s
f o r
t h e
p u r c h a s e ,
i f
n e c e s s a r y .
N e i t h e r
M a b r y
n o r
t h e n
G o v e r n o r
S i e g e l m a n
was
a d v i s e d
a t t h a t t i m e t h a t S t r a n g e and CSX
had
e n t e r e d
i n t o
an
18
1070484; 1070487; 1070514
a g r e e m e n t t o h a v e CSX
r e i m b u r s e d f o r any f u n d s i t p r o v i d e d
t o
o b t a i n t h e S h e l t o n p r o p e r t y .
A l s o on t h e m o r n i n g o f M a r c h
29,
A b n e y and M c P h i l l i p s were i n f o r m e d
t h a t B r i g h t had e x e c u t e d
an
o p t i o n
a g r e e m e n t
w i t h
S h e l t o n
t o p u r c h a s e
h e r
p r o p e r t y
a t
$12,000
p e r
a c r e .
A b n e y
and
M c P h i l l i p s
r e v i e w e d
a l l t h e
o p t i o n
a g r e e m e n t s
and
d e t e r m i n e d
t h a t
n o t h i n g
i n
them
p r e v e n t e d
t h e
S t a t e
f r o m
a s s i s t i n g
i n t h e
p u r c h a s e
o f
t h e
S h e l t o n p r o p e r t y .
T h e y a d v i s e d M a b r y t h a t b e c a u s e t h e
S t a t e
was
n o t
a p a r t y t o t h e o p t i o n a g r e e m e n t s t h e p u r c h a s e o f
t h e
S h e l t o n
p r o p e r t y
by
t h e
S t a t e
w o u l d
n o t
t r i g g e r
t h e
m o s t -
f a v o r e d - n a t i o n
c l a u s e
c o n t a i n e d
i n
t h e
o t h e r
o p t i o n
a g r e e m e n t s .
A b n e y
and
M c P h i l l i p s
t h e n
i n c o r p o r a t e d
t h e
p u r c h a s e o f t h e
S h e l t o n p r o p e r t y
i n t o t h e
d r a f t o f a p r o j e c t
a g r e e m e n t w i t h H y u n d a i d e t a i l i n g t h e l o c a t i o n and
d e v e l o p m e n t
o f t h e p l a n t
("the
p r o j e c t a g r e e m e n t " ) .
On
A p r i l
1, 2002, H y u n d a i a n n o u n c e d t h a t i t had
s e l e c t e d
M o n t g o m e r y as t h e
s i t e on w h i c h i t w o u l d b u i l d i t s
a u t o m o b i l e -
m a n u f a c t u r i n g
f a c i l i t y .
On
A p r i l
8,
G e o r g e met
w i t h
J u d g e
R e e s e M c K i n n e y , a s h a r e h o l d e r
i n S o u t h d a l e ,
and W i l l i a m s ,
t h e
a t t o r n e y r e p r e s e n t i n g W h e e l e r / P h i l l i p s , t o i n f o r m them o f
t h e
r e c e n t l y
o b t a i n e d
o p t i o n
on
t h e
S h e l t o n
p r o p e r t y .
G e o r g e
t e s t i f i e d
t h a t he
t o l d M c K i n n e y and
W i l l i a m s
t h a t B r i g h t
had
19
1070484; 1070487; 1070514
e x e c u t e d an a s s i g n a b l e
o p t i o n , t h a t he gave them a c o p y o f
t h e
S h e l t o n
o p t i o n a g r e e m e n t , and
t h a t "CSX
had a g r e e d t o h e l p
us
r e s o l v e
t h e
p r o b l e m
by
what
I
u n d e r s t o o d
t o
be
was
t h e
a c q u i s i t i o n
o f
t h i s p r o p e r t y
a f t e r t h e y had done, o f
c o u r s e ,
due
d i l i g e n c e f o r t h a t . "
M c K i n n e y t e s t i f i e d
t h a t G e o r g e
t o l d
h i m
t h a t
CSX
n e e d e d t h e
p r o p e r t y
and
s a t i s f i e d
h i s
c o n c e r n s
b e c a u s e ,
he
s a i d ,
G e o r g e
e x p l a i n e d
t h a t
" t h e
r a i l
y a r d
p u r c h a s e d
by
CSX
d i d
n o t
r e l a t e
t o
o u r
[ S o u t h d a l e ' s ]
a g r e e m e n t . "
W i l l i a m s
a l s o
t e s t i f i e d
t h a t G e o r g e
e x p l a i n e d
t h a t
t h e
S h e l t o n
o p t i o n w o u l d be
a s s i g n e d
t o CSX
b e c a u s e
o f
t h e
l o c a t i o n o f t h e
r a i l
y a r d .
A l t h o u g h G e o r g e was
aware
o f
H y u n d a i ' s
r e q u e s t
i n
F e b r u a r y
2002
t o
" s q u a r e
o f f
t h e
p r o p e r t y "
and
o f M c N a i r ' s a t t e m p t t o o b t a i n S h e l t o n ' s
l a n d
a t
t h a t
t i m e ,
he
d i d n o t
t e l l M c K i n n e y and
W i l l i a m s
a b o u t
t h a t
r e q u e s t ;
i n s t e a d , he
t e s t i f i e d t h a t he i n f o r m e d them " t h a t
CSX
was
g o i n g t o buy
t h e p r o p e r t y . "
G e o r g e t e s t i f i e d t h a t when he
l e f t
t h e m e e t i n g a t MACOC's o f f i c e s
on
t h e
e v e n i n g o f M a r c h
28,
i t was
h i s u n d e r s t a n d i n g
t h a t
CSX
was
g o i n g
t o
p u r c h a s e
t h e
S h e l t o n
p r o p e r t y
and
t h a t
i f he
had known t h e
S t a t e
was
g o i n g
t o r e i m b u r s e CSX
f o r t h e p u r c h a s e p r i c e ,
he w o u l d h a v e
c o n v e y e d t h a t i n f o r m a t i o n
t o M c K i n n e y and
W i l l i a m s .
20
1070484; 1070487; 1070514
E v a n s t e s t i f i e d t h a t he f i r s t l e a r n e d o f S t r a n g e ' s M a r c h
29
l e t t e r and H e m p h i l l ' s M a r c h 29 e - m a i l when he r e a d them on
h i s
way t o a m e e t i n g w i t h
S t r a n g e i n A p r i l 2002.
He
s t a t e d
t h a t he became c o n c e r n e d a n d a s k e d S t r a n g e a b o u t t h e m o s t -
f a v o r e d - n a t i o n
c l a u s e i n t h e o p t i o n
a g r e e m e n t s , b u t he
s a i d
t h a t
S t r a n g e
t o l d h i m t h e p u r c h a s e o f t h e S h e l t o n
p r o p e r t y
w o u l d be a s e p a r a t e
t r a n s a c t i o n and t h a t G e o r g e h a d
a l r e a d y
e x p l a i n e d
t o t h e o t h e r
l a n d o w n e r s
t h a t t h e p u r c h a s e o f t h e
S h e l t o n
p r o p e r t y
was t o be "a
r a i l r o a d
p r o j e c t . "
E v a n s
t e s t i f i e d
t h a t h i s c o n c e r n s were s a t i s f i e d when S t r a n g e
t o l d
h i m
t h a t G e o r g e h a d i n f o r m e d t h e o t h e r o p t i o n h o l d e r s
t h a t CSX
"had
c o m m i t t e d t o make t h a t
p u r c h a s e . "
On
A p r i l
15,
2002,
t h e
S t a t e ,
a c t i n g
t h r o u g h
t h e n
G o v e r n o r S i e g e l m a n i n
h i s o f f i c i a l c a p a c i t y ; t h e C i t y ,
a c t i n g
t h r o u g h t h e n Mayor B r i g h t i n
h i s o f f i c i a l c a p a c i t y ; t h e C o u n t y
C o m m i s s i o n ,
a c t i n g t h r o u g h J o s e p h i n h i s o f f i c i a l
c a p a c i t y ;
and t h e
I D B , a c t i n g t h r o u g h T h o r n t o n i n
h i s o f f i c i a l
c a p a c i t y ,
e n t e r e d
i n t o t h e p r o j e c t a g r e e m e n t .
6
S e c t i o n 3.1 o f A r t i c l e
3 o f t h e p r o j e c t
a g r e e m e n t
s t a t e d
t h a t " t h e M o n t g o m e r y I D B
6The W a t e r Works and S a n i t a r y Sewer B o a r d o f t h e C i t y o f
M o n t g o m e r y , a c t i n g t h r o u g h i t s c h a i r m a n R i c h a r d E. Hanan, a l s o
e x e c u t e d t h e p r o j e c t
a g r e e m e n t , b u t n e i t h e r
t h e B o a r d n o r
Hanan i s a p a r t y i n t h i s
c a s e .
21
1070484; 1070487; 1070514
p r e s e n t l y
h o l d s
p u r c h a s e
o p t i o n s
n e c e s s a r y
t o
a c q u i r e
f e e
s i m p l e
t i t l e
t o
e a c h
p a r c e l
o f
r e a l
e s t a t e
c o m p r i s i n g
t h e
P r o j e c t
S i t e . "
S e c t i o n 3.4
o f t h e p r o j e c t a g r e e m e n t f u r t h e r
p r o v i d e d
t h a t
t h e
I D B
was
t o
e x e r c i s e e a c h
o p t i o n ;
s e c t i o n
3.6(a) p r o v i d e d t h a t t h e I D B was
t h e n t o t r a n s f e r t i t l e o f
t h e
p r o p e r t y
a c q u i r e d by
t h e e x e r c i s e o f t h e o p t i o n s
t o H y u n d a i .
S e c t i o n
3.20
o f
t h e
p r o j e c t
a g r e e m e n t ,
e n t i t l e d
"CSX
A g r e e m e n t , "
p r o v i d e d
f o r
t h e
a c q u i s i t i o n
o f
t h e
S h e l t o n
p r o p e r t y :
"The
S t a t e
and
L o c a l
G o v e r n m e n t s
s h a l l
use
t h e i r
b e s t
e f f o r t s
t o c a u s e
CSX
T r a n s p o r t a t i o n
t o
e n t e r
i n t o
an
a g r e e m e n t
w i t h
[ H y u n d a i ]
i n
f o r m
s a t i s f a c t o r y
t o
[ H y u n d a i ] ,
w h i c h
w i l l
p r o v i d e
f o r
r a i l
s e r v i c e f o r [ H y u n d a i ] on t e r m s and
c o n d i t i o n s
as f a v o r a b l e t o [ H y u n d a i ] as t h o s e
o f f e r e d t o
o t h e r
a u t o m o b i l e
m a n u f a c t u r e r s .
I n
a d d i t i o n , t h e
S t a t e
and
C i t y
s h a l l use
t h e i r
b e s t
e f f o r t s
t o c a u s e
CSX
T r a n s p o r t a t i o n
t o p r o v i d e
t h e
i n c e n t i v e s s e t
f o r t h
i n t h e
l e t t e r f r o m CSX
T r a n s p o r t a t i o n d a t e d December
17,
2001.
The
S t a t e
r e p r e s e n t s
and
w a r r a n t s
t h a t
[ H y u n d a i ]
w i l l
a c q u i r e
f e e
s i m p l e
t i t l e
t o
[ t h e
S h e l t o n
p r o p e r t y ]
f o r
use
i n
c o n n e c t i o n
w i t h
c o n s t r u c t i o n
o f
a
r a i l
s w i t c h
y a r d
by
o r
b e f o r e
S e p t e m b e r 30, 2002.
I f and
t o t h e e x t e n t
[ H y u n d a i ]
makes
any
payment
f o r
t h e
c o s t
o f
a c q u i r i n g
s u c h
a c r e a g e ,
t h e
S t a t e
s h a l l
r e i m b u r s e
[ H y u n d a i ]
f o r
s u c h c o s t s by i n c r e a s i n g by an e q u i v a l e n t amount t h e
m o n i e s made
a v a i l a b l e f r o m
t h e
S t a t e
i n
T r a i n i n g
E q u i p m e n t Fund p u r s u a n t
t o
A r t i c l e
4 by
no
l a t e r
t h a n
t h e
l a s t
q u a r t e r
o f
t h e
c a l e n d a r
y e a r
2003.
The
C i t y
a g r e e s
t h a t
i t w i l l
z o n e s u c h a d d i t i o n a l
a c r e a g e
t h e same as
t h e
P r o j e c t
S i t e .
The
L o c a l
G o v e r n m e n t s a g r e e t o a b a t e t a x e s t h a t a r e a p p l i c a b l e
t o
s u c h a d d i t i o n a l a c r e a g e i n t h e same manner and
t o
22
1070484; 1070487; 1070514
t h e same e x t e n t
as
...
a b a t e m e n t
o f
t a x e s
o f
t h e
P r o j e c t
S i t e . "
The
I D B
a s s i g n e d
t h e
o p t i o n s
i t h e l d
on
t h e
p r o p e r t y
owned
by
S o u t h d a l e ,
W h e e l e r / P h i l l i p s ,
t h e
R u s s e l l s ,
t h e
P a r k e r s , t h e McLemore g r o u p , and P e l z e r Homes t o t h e C i t y
and
t h e
C o u n t y .
I n
m i d
May
2 0 0 2 ,
t h e
C i t y
and
t h e
C o u n t y
p u r c h a s e d t h e p r o p e r t y f o r $4,500 p e r a c r e .
The
C i t y and
t h e
C o u n t y
t h e n
d e e d e d
t h e
p r o p e r t y
t o
t h e
IDB,
w h i c h
i n
t u r n
d e e d e d t h e p r o p e r t y t o H y u n d a i .
The
C i t y n e v e r e x e r c i s e d t h e
o p t i o n i t h e l d on t h e S h e l t o n
p r o p e r t y .
D e s p i t e
t h e
d i s c u s s i o n i n t h e
l a t e
e v e n i n g
o f M a r c h
28
a b o u t CSX's
p u r c h a s i n g
t h e
S h e l t o n
p r o p e r t y ,
t h e n
F i n a n c e
D i r e c t o r M a b r y was
r e l u c t a n t t o h a v e t h e S t a t e r e i m b u r s e
CSX
d i r e c t l y
b e c a u s e
CSX
w o u l d
be
e x p e c t e d
t o
p r o f i t
f r o m i t s
r e l a t i o n s h i p w i t h H y u n d a i . When H y u n d a i l e a r n e d t h a t CSX,
n o t
t h e
S t a t e ,
w o u l d
be
p u r c h a s i n g
t h e
p r o p e r t y
f o r t h e
r a i l
i n s t a l l a t i o n and t h a t H y u n d a i w o u l d be e x p e c t e d
t o e n t e r
i n t o
a l o n g - t e r m
c o n t r a c t w i t h CSX,
H y u n d a i d e c i d e d t o i n s t a l l
t h e
r a i l
u s i n g
i t s own
f u n d s .
On
May
22,
2002, M a b r y ,
i n h i s
c a p a c i t y
as
t h e
d i r e c t o r
o f
f i n a n c e ,
s e n t
Ahn
a
l e t t e r
c o n f i r m i n g t h a t t h e S t a t e w o u l d be f u n d i n g t h e p u r c h a s e o f t h e
S h e l t o n p r o p e r t y .
M a b r y ' s
l e t t e r
s t a t e d :
23
1070484; 1070487; 1070514
" T h i s
i s t o c o n f i r m t h a t t h e
S t a t e o f A l a b a m a
w i l l
p r o v i d e t h e f u n d i n g f o r t h e p u r c h a s e o f t h e 93
a c r e s
s e t
a s i d e
f o r H y u n d a i ' s
r a i l
y a r d
on
t h e
d a t e
o f
c l o s i n g .
T h i s
w i l l
o b v i a t e any n e e d f o r H y u n d a i t o
b o r r o w
t o p a y
f o r
t h i s
a c q u i s i t i o n .
I n a d d i t i o n ,
t h e
S t a t e
w i l l
p a y
t h e
r e a s o n a b l e
due
d i l i g e n c e
c o s t s
i n c u r r e d
i n
c o n n e c t i o n
w i t h
H y u n d a i ' s
a c q u i s i t i o n
o f
t h i s
p r o p e r t y .
T h i s
l e t t e r
o f
a s s u r a n c e
i s
b e i n g
p r o v i d e d
t o
y o u
p u r s u a n t
t o
S e c t i o n 3.20
o f t h e P r o j e c t A g r e e m e n t . "
The
o p t i o n on t h e S h e l t o n p r o p e r t y was
n e v e r e x e r c i s e d b y
t h e
C i t y , and
i t e x p i r e d on May
3 1 , 2 0 0 2 .
A l s o on May
3 1 ,
CSX
e x e c u t e d
a r e a l - e s t a t e s a l e s c o n t r a c t f o r t h e p u r c h a s e o f
t h e
S h e l t o n
p r o p e r t y
a t
$12,000
p e r
a c r e .
As
a
r e s u l t
o f
H y u n d a i ' s
d e c i s i o n
n o t
t o
i n v o l v e
CSX
i n
t h e
r a i l
i n s t a l l a t i o n , CSX a s s i g n e d t h e r e a l - e s t a t e c o n t r a c t t o H y u n d a i
on May
2 8 , 2 0 0 2 , t h r e e d a y s b e f o r e
t h e
r e a l - e s t a t e c o n t r a c t
b e t w e e n CSX
and
S h e l t o n was
e x e c u t e d .
On
J u n e
1 4 ,
2 0 0 2 , M a b r y
and
t h e n
G o v e r n o r
S i e g e l m a n
c o n v e n e d a m e e t i n g o f t h e A I F A , a t w h i c h t h e A I F A v o t e d t o
p a y
$1.3
m i l l i o n " f o r t h e a c q u i s i t i o n o f r a i l s w i t c h y a r d
p r o p e r t y
f o r
H y u n d a i . "
B e c a u s e
t h e
f u n d s
f o r
t h e
p u r c h a s e
o f
t h e
S h e l t o n
p r o p e r t y
were
r e l a t e d
t o
a commitment made
t o
an
i n d u s t r y l o c a t i n g i n A l a b a m a , b o n d p r o c e e d s h e l d b y t h e A I F A
were u s e d t o f u n d t h e p u r c h a s e o f t h e p r o p e r t y .
On J u l y
1 2 ,
2 0 0 2 , f u n d s f r o m
t h e A I F A were t r a n s f e r r e d t o H y u n d a i ,
and
24
1070484; 1070487; 1070514
H y u n d a i u s e d
t h o s e
f u n d s
t o p u r c h a s e
t h e
S h e l t o n
p r o p e r t y .
The
c l o s i n g on t h e S h e l t o n p r o p e r t y o c c u r r e d
i n A u g u s t 2002.
A f t e r
a l l t h e
l a n d
had
b e e n
a c q u i r e d
and
d e e d e d
t o
H y u n d a i ,
H y u n d a i
l e a s e d
a l l t h e
p r o p e r t y ,
i n c l u d i n g
t h e
S h e l t o n p r o p e r t y , t o t h e I D B so t h a t t h e A l a b a m a D e p a r t m e n t o f
T r a n s p o r t a t i o n ("ALDOT") c o u l d p e r f o r m
s i t e p r e p a r a t i o n on
t h e
p r o p e r t y .
A d d i t i o n a l l y , t h e
I D B
e n t e r e d
i n t o
an
a g r e e m e n t
w i t h H y u n d a i p r o v i d i n g t h a t H y u n d a i ' s p r o p e r t y was
t o r e c e i v e
t h e p r e v i o u s l y a g r e e d upon a b a t e m e n t f r o m ad v a l o r e m
t a x a t i o n
and
o t h e r t a x i n c e n t i v e s p r o v i d e d
as a p a r t o f t h e i n c e n t i v e
p a c k a g e .
The
S h e l t o n
p r o p e r t y
was
i n c l u d e d
i n
t h e
t a x - a b a t e m e n t a g r e e m e n t .
On May
2 8 , 2 0 0 4 , S o u t h d a l e
and W h e e l e r / P h i l l i p s f i l e d
an
a c t i o n
i n
t h e
M o n t g o m e r y
C i r c u i t
C o u r t
a g a i n s t
t h e
I D B ,
T h o r n t o n , t h e C i t y , B r i g h t , t h e C o u n t y , J o s e p h , t h e A I F A , t h e n
G o v e r n o r
S i e g e l m a n ,
t h e n
F i n a n c e
D i r e c t o r
M a b r y ,
CSX
T r a n s p o r t a t i o n , I n c . , H y u n d a i , t h e MACOC, and G e o r g e , a l l e g i n g
f r a u d ,
s u p p r e s s i o n ,
b r e a c h
o f
c o n t r a c t ,
r e s c i s s i o n ,
and
c o n s p i r a c y
a r i s i n g
o u t
o f
t h e
s a l e
o f
t h e i r
l a n d .
S p e c i f i c a l l y , t h e y a l l e g e d t h a t t h e d e f e n d a n t s had
c o n s p i r e d
t o p u r c h a s e t h e
S h e l t o n p r o p e r t y
a t a h i g h e r p r i c e t h a n
was
p a i d
f o r
t h e i r
p r o p e r t y
and
t h a t
t h e
d e f e n d a n t s
d i d
so
t o
25
1070484; 1070487; 1070514
a v o i d c o m p l y i n g w i t h t h e m o s t - f a v o r e d - n a t i o n c l a u s e c o n t a i n e d
i n a l l
t h e o p t i o n a g r e e m e n t s .
S o u t h d a l e and W h e e l e r / P h i l l i p s
f i l e d an amended c o m p l a i n t on A u g u s t 2 0 , 2 0 0 4 , n a m i n g t h e same
d e f e n d a n t s ,
s t a t i n g
t h e same c l a i m s , and m a k i n g
o n l y m i n o r
r e v i s i o n s
t o t h e c o m p l a i n t .
S o u t h d a l e
and W h e e l e r / P h i l l i p s
f i l e d
a
s e c o n d
amended
c o m p l a i n t
on
F e b r u a r y
2 2 ,
2 0 0 5 ,
s u b s t i t u t i n g
CSX
R e a l
P r o p e r t y ,
I n c . ,
H e m p h i l l ,
E v a n s ,
S t r a n g e , and
E c h o l s
f o r t h e
f i c t i t i o u s l y
named
d e f e n d a n t s
i d e n t i f i e d i n t h e e a r l i e r c o m p l a i n t s and a d d i n g an
a d d i t i o n a l
c l a i m o f i n t e n t i o n a l f r a u d and s u p p r e s s i o n .
On November
2 1 ,
2 0 0 5 , t h e
t r i a l c o u r t d i s m i s s e d G e o r g e and t h e MACOC p u r s u a n t
t o
a s t i p u l a t i o n b e t w e e n t h e p a r t i e s .
On F e b r u a r y 22,
2006,
t h e
t r i a l c o u r t e n t e r e d a summary j u d g m e n t i n f a v o r o f B r i g h t
on
t h e
b a s i s
o f
S t a t e - a g e n t
i m m u n i t y ,
d i s m i s s e d
E c h o l s
p u r s u a n t t o a s t i p u l a t i o n o f t h e p a r t i e s , and d e n i e d
S t r a n g e ' s
m o t i o n
t o d i s m i s s t h e
c l a i m s a g a i n s t h i m
on
t h e
g r o u n d
o f
i m m u n i t y .
L e s s
t h a n a week b e f o r e
t h i s
c a s e was
t o be
t r i e d ,
t h e
p r o j e c t
p a r t i c i p a n t s
r e m a i n i n g
i n t h e c a s e
a f t e r B r i g h t
was
r e m o v e d ( " t h e
r e m a i n i n g p r o j e c t p a r t i c i p a n t s " ) f i l e d a m o t i o n
t o
d i s q u a l i f y
t h e
l a w
f i r m
r e p r e s e n t i n g S o u t h d a l e
i n
t h i s
l i t i g a t i o n ,
t h e M o n t g o m e r y l a w
f i r m o f J e m i s o n , M e n d e l s o h n
&
26
1070484; 1070487; 1070514
J a m e s , P.C., on t h e b a s i s t h a t a member o f t h a t l a w f i r m , L e e
M i l l e r ,
a p p e a r e d
t o have
p r o v i d e d
l e g a l
a d v i c e
r e g a r d i n g
p u r c h a s e o f t h e S h e l t o n
p r o p e r t y
d u r i n g h i s e m p l o y m e n t
w i t h
t h e
l e g a l
d i v i s i o n o f t h e S t a t e F i n a n c e
D e p a r t m e n t b e f o r e he
j o i n e d t h e l a w f i r m .
The r e m a i n i n g
p r o j e c t p a r t i c i p a n t s a l s o
moved
t o
d i s q u a l i f y
t h e
l a w
f i r m
r e p r e s e n t i n g
W h e e l e r / P h i l l i p s ,
t h e B i r m i n g h a m
f i r m
o f S p a i n
&
G i l l o n ,
L . L . C . , on t h e b a s i s
t h a t
M i l l e r h a d p r o v i d e d
d o c u m e n t s t o
them.
The t r i a l
c o u r t g r a n t e d t h e m o t i o n s t o d i s q u a l i f y b o t h
l a w f i r m s .
W h e e l e r / P h i l l i p s p e t i t i o n e d t h i s C o u r t f o r
a w r i t
o f mandamus
d i r e c t i n g t h e t r i a l
c o u r t t o v a c a t e
i t s o r d e r
d i s q u a l i f y i n g
t h e i r
c o u n s e l i n t h i s
l i t i g a t i o n .
T h i s
C o u r t
g r a n t e d W h e e l e r / P h i l l i p s ' s p e t i t i o n a n d i s s u e d t h e w r i t .
See
Ex
p a r t e
W h e e l e r ,
978 So. 2d 1 ( A l a .
2 0 0 7 ) .
S o u t h d a l e
o b t a i n e d new c o u n s e l , a n d t h e c a s e p r o c e e d e d .
On November 2, 2007, t h e t r i a l
c o u r t
e n t e r e d a summary
j u d g m e n t i n f a v o r o f t h e r e m a i n i n g
p r o j e c t p a r t i c i p a n t s on
S o u t h d a l e a n d W h e e l e r / P h i l l i p s ' s t o r t c l a i m s on t h e b a s i s t h a t
t h o s e
t o r t
c l a i m s were b a r r e d b y t h e a p p l i c a b l e s t a t u t e o f
l i m i t a t i o n s .
On November 20, 2007, t h e t r i a l
c o u r t e n t e r e d a
summary
j u d g m e n t
i n
f a v o r
o f
t h e
r e m a i n i n g
p r o j e c t
p a r t i c i p a n t s
on
a l l r e m a i n i n g
c l a i m s .
S o u t h d a l e
a n d
27
1070484; 1070487; 1070514
W h e e l e r / P h i l l i p s a p p e a l f r o m t h e summary j u d g m e n t s .
S o u t h d a l e
a l s o a p p e a l s
f r o m an o r d e r o f t h e
t r i a l
c o u r t r e q u i r i n g i t t o
p a y
t h e
s p e c i a l - m a s t e r
f e e
i n c o n n e c t i o n
w i t h t h e m o t i o n
t o
d i s q u a l i f y i t s c o u n s e l .
W h e e l e r / P h i l l i p s a l s o a p p e a l f r o m an
o r d e r
o f
t h e
t r i a l
c o u r t
r e q u i r i n g them
t o
p r o d u c e
i n
d i s c o v e r y
m a t e r i a l s
t h e y
c o n s i d e r
t o
be
s u b j e c t
t o
t h e
a t t o r n e y - c l i e n t
p r i v i l e g e .
S t r a n g e
c r o s s - a p p e a l s
f r o m
t h e
o r d e r
d e n y i n g
h i s m o t i o n
t o
d i s m i s s
g r o u n d e d
on
S t a t e
and
S t a t e - a g e n t
i m m u n i t y .
The
R u s s e l l s
and
t h e McLemore
g r o u p
a l s o
f i l e d
l e g a l
a c t i o n s as a r e s u l t o f t h e s e t r a n s a c t i o n s . They e a c h s u e d t h e
I D B
and
H y u n d a i ,
a l l e g i n g
b r e a c h
o f
c o n t r a c t ,
s p e c i f i c a l l y
s t a t i n g
t h a t
t h e
I D B
and
H y u n d a i
had
b r e a c h e d
t h e
m o s t - f a v o r e d - n a t i o n
c l a u s e i n t h e i r o p t i o n a g r e e m e n t s by
n o t
p a y i n g
them $12,000 p e r
a c r e
f o r
t h e i r
p r o p e r t y ,
t h e
p r i c e
S h e l t o n was
p a i d .
The
t r i a l
c o u r t e n t e r e d summary j u d g m e n t s
i n
f a v o r
o f
t h e
I D B
and
H y u n d a i ,
and
t h e
R u s s e l l s and
t h e
McLemore
g r o u p
a p p e a l e d .
T h i s
C o u r t
a f f i r m e d
t h e
t r i a l
c o u r t ' s
j u d g m e n t
i n
p a r t
and
r e v e r s e d
i t i n
p a r t .
See
McLemore v.
H y u n d a i M o t o r
M f g .
A l a b a m a ,
LLC,
7 So.
3d
318
( A l a .
2 0 0 8 ) .
Our
d e c i s i o n i n t h a t c a s e c o n t r o l s some o f
t h e
i s s u e s r a i s e d i n t h i s
c a s e .
28
1070484; 1070487; 1070514
I I .
S t a n d a r d o f R e v i e w
A. Summary Judgment
The s t a n d a r d by w h i c h t h i s C o u r t w i l l r e v i e w a m o t i o n f o r
summary j u d g m e n t i s w e l l
e s t a b l i s h e d :
"'The
p r i n c i p l e s o f l a w a p p l i c a b l e t o a m o t i o n
f o r
summary j u d g m e n t
a r e
w e l l
s e t t l e d .
To
g r a n t
s u c h a m o t i o n , t h e
t r i a l
c o u r t must d e t e r m i n e
t h a t
t h e
e v i d e n c e
does
n o t
c r e a t e a
g e n u i n e
i s s u e
o f
m a t e r i a l
f a c t and
t h a t t h e movant i s e n t i t l e d t o a
j u d g m e n t as a m a t t e r o f l a w .
R u l e 5 6 ( c ) ( 3 ) , A l a . R.
C i v .
P.
When t h e movant makes a p r i m a f a c i e
s h o w i n g
t h a t t h o s e two
c o n d i t i o n s a r e s a t i s f i e d ,
t h e
b u r d e n
s h i f t s
t o
t h e
nonmovant
t o
p r e s e n t
" s u b s t a n t i a l
e v i d e n c e " c r e a t i n g a g e n u i n e i s s u e o f m a t e r i a l
f a c t .
B a s s v. S o u t h T r u s t Bank o f B a l d w i n C o u n t y ,
538
So.
2d
794,
797-98
( A l a . 1 9 8 9 ) ;
§ 1 2 - 2 1 - 1 2 ( d ) [ , ]
A l a .
Code 1975.
E v i d e n c e
i s " s u b s t a n t i a l " i f i t i s o f
" s u c h w e i g h t and q u a l i t y t h a t f a i r - m i n d e d p e r s o n s i n
t h e
e x e r c i s e
o f
i m p a r t i a l
j u d g m e n t
c a n
r e a s o n a b l y
i n f e r
t h e
e x i s t e n c e
o f
t h e
f a c t
s o u g h t
t o
be
p r o v e d . "
West
v.
F o u n d e r s
L i f e
A s s u r .
Co.
o f
F l o r i d a ,
547
So. 2d 870,
871
( A l a . 1 9 8 9 ) .
" ' I n
o u r r e v i e w o f a summary j u d g m e n t , we
a p p l y
t h e
same
s t a n d a r d as
t h e
t r i a l
c o u r t .
Ex
p a r t e
L u m p k i n ,
702
So.
2d
4
62 ,
465
( A l a . 1997 ) .
Our
r e v i e w i s s u b j e c t t o t h e c a v e a t t h a t we must r e v i e w
t h e
r e c o r d
i n
a
l i g h t
most
f a v o r a b l e
t o
t h e
nonmovant
and
must
r e s o l v e
a l l r e a s o n a b l e
d o u b t s
a g a i n s t
t h e m o v a n t .
H a n n e r s
v.
B a l f o u r
G u t h r i e ,
I n c . ,
564
So. 2d 412
( A l a . 1 9 9 0 ) . ' "
P a y t o n v. M o n s a n t o Co.,
801
So.
2d
829,
832-33
( A l a . 2001 )
( q u o t i n g Ex p a r t e A l f a Mut. Gen.
I n s . Co., 742 So. 2d 182,
184
( A l a .
1 9 9 9 ) ) .
B. D i s c o v e r y O r d e r
29
1070484; 1070487; 1070514
Our
s t a n d a r d
o f r e v i e w
i n m a t t e r s i n v o l v i n g d i s c o v e r y i s
l i m i t e d
t o d e t e r m i n i n g
w h e t h e r t h e
t r i a l
c o u r t e x c e e d e d i t s
d i s c r e t i o n i n m a k i n g i t s d i s c o v e r y d e c i s i o n .
R a n k i n v.
F i r s t
N a t ' l
Bank
o f
A l a b a m a ,
437
So.
2d
503
( A l a .
1
9 8 3 ) .
An
a p p e l l a t e
c o u r t
w i l l
n o t
r e v e r s e
t h e
t r i a l
c o u r t ' s
d e c i s i o n
r e g a r d i n g
a d i s c o v e r y m a t t e r u n l e s s
t h e r e
i s a c l e a r s h o w i n g
t h a t
t h e
t r i a l
c o u r t
e x c e e d e d
i t s d i s c r e t i o n .
Ex
p a r t e
M c T i e r ,
414
So.
2d 460
( A l a . 1 9 8 2 ) .
C.
S p e c i a l - M a s t e r
Fee
The
d e c i s i o n w h e t h e r t o a w a r d a s p e c i a l - m a s t e r
f e e as
an
e l e m e n t o f c o s t s i s w i t h i n t h e s o u n d d i s c r e t i o n o f t h e
t r i a l
c o u r t .
An
a p p e l l a t e
c o u r t
w i l l
r e v e r s e
t h e
t r i a l
c o u r t ' s
r u l i n g on t h a t q u e s t i o n o n l y upon a s h o w i n g t h a t t h e t a x a t i o n
o f c o s t s was
u n j u s t and u n f a i r .
C i t y o f B i r m i n g h a m v. C i t y
o f
F a i r f i e l d ,
396
So.
2d
692,
697
( A l a . 1 9 8 1 ) .
I I I . Summary Judgment as t o B r e a c h - o f - C o n t r a c t
C l a i m s
I n McLemore v. H y u n d a i M o t o r M a n u f a c t u r i n g ,
LLC,
s u p r a ,
we
d e a l t
w i t h
o p t i o n
a g r e e m e n t s
i d e n t i c a l
t o
t h e
o p t i o n
a g r e e m e n t s e x e c u t e d i n t h e u n d e r l y i n g c a s e .
The
IDB a r g u e d i n
McLemore, as do
t h e p r o j e c t p a r t i c i p a n t s h e r e ,
t h a t t h e 2002
amendment
t o
t h e
o p t i o n
a g r e e m e n t
w a i v e d
t h e
m o s t - f a v o r e d - n a t i o n
c l a u s e
i n t h e
o r i g i n a l
o p t i o n a g r e e m e n t .
30
1070484; 1070487; 1070514
S o u t h d a l e
and
W h e e l e r / P h i l l i p s
a r g u e ,
as
d i d t h e
R u s s e l l s ,
t h a t t h e amendment o f t h e o p t i o n a g r e e m e n t s d i d n o t w a i v e
t h e
m o s t - f a v o r e d - n a t i o n
c l a u s e .
S o u t h d a l e
and
W h e e l e r / P h i l l i p s
c o n t e n d
t h a t
t h e
s o l e
p u r p o s e
o f t h e amendment t o t h e o p t i o n a g r e e m e n t was t o e x t e n d
t h e
d a t e
o f
t h e
o p t i o n
120
d a y s
p a s t
t h e
F e b r u a r y
2002
e x p i r a t i o n d a t e o f t h e o r i g i n a l o p t i o n a g r e e m e n t .
B e c a u s e t h e
amendment t o t h e o p t i o n a g r e e m e n t d i d n o t s p e c i f i c a l l y
d e l e t e
o r
w a i v e
t h e
m o s t - f a v o r e d - n a t i o n
c l a u s e ,
t h e y
a r g u e ,
t h e
c l a u s e
r e m a i n e d
i n e f f e c t .
S o u t h d a l e
and
W h e e l e r / P h i l l i p s
r e l y
on
l a n g u a g e
i n t h e amended
o p t i o n
a g r e e m e n t
p r o v i d i n g
t h a t ,
" [ e ] x c e p t
as amended h e r e b y ,
t h e O p t i o n i s i n a l l o t h e r
r e s p e c t s
r a t i f i e d and c o n f i r m e d , " and l a n g u a g e i n t h e
o r i g i n a l
o p t i o n
a g r e e m e n t p r o v i d i n g
t h a t
"no
w a i v e r
o f any
o f
[ t h e ]
t e r m s
and
c o n d i t i o n s
[ o f
t h e
o p t i o n
a g r e e m e n t ]
s h a l l
be
e f f e c t i v e
u n l e s s made i n w r i t i n g
and
d u l y
e x e c u t e d
by
t h e
p a r t i e s "
t o t h e
o p t i o n a g r e e m e n t .
They
i n s i s t
t h a t
b e c a u s e
t h e amendment t o t h e
o p t i o n
a g r e e m e n t d i d n o t
s p e c i f i c a l l y
d e l e t e
o r w a i v e
t h e m o s t - f a v o r e d - n a t i o n
c l a u s e ,
t h a t
c l a u s e
r e m a i n s
e n f o r c e a b l e .
The
p r o j e c t
p a r t i c i p a n t s
c o n t e n d
t h a t
b e c a u s e t h e l a n g u a g e
i n t h e amendment t o t h e o p t i o n a g r e e m e n t
as
t o
t h e
p u r c h a s e
p r i c e
i s u n a m b i g u o u s
and
e s t a b l i s h e s
a
31
1070484; 1070487; 1070514
d e f i n i t e
p u r c h a s e
p r i c e
o f
$4,500
p e r
a c r e ,
t h e
m o s t - f a v o r e d - n a t i o n
c l a u s e
was
e l i m i n a t e d
f r o m
t h e
o p t i o n
a g r e e m e n t s b e t w e e n t h e
IDB
and
S o u t h d a l e and b e t w e e n t h e
IDB
and
W h e e l e r / P h i l l i p s .
We
r e v e r s e d
t h e summary j u d g m e n t f o r t h e
IDB
as
t o
t h e
R u s s e l l s ' b r e a c h - o f - c o n t r a c t
c l a i m i n McLemore,
s t a t i n g :
"We
h o l d t h a t t h e t e r m s o f t h e amendment t o
t h e
o p t i o n a g r e e m e n t a r e
n o t
' d e f i n i t e
and
c e r t a i n '
as
t o w a i v e r
o f
t h e m o s t - f a v o r e d - n a t i o n
c l a u s e
i n
t h e
o r i g i n a l
o p t i o n
a g r e e m e n t .
The
l a n g u a g e
o f
t h e
o r i g i n a l o p t i o n a g r e e m e n t s p e c i f i c a l l y p r o v i d e d
t h a t
f o r
a
w a i v e r
o f
a
t e r m
o f
t h e
a g r e e m e n t
t o
be
e f f e c t i v e ,
t h e
w a i v e r
must
be
i n
w r i t i n g
and
e x e c u t e d by b o t h p a r t i e s .
A l t h o u g h t h e l a n g u a g e i n
t h e amendment t o t h e o p t i o n a g r e e m e n t s e t s f o r t h
t h e
p r i c e
p e r
a c r e
a t $4,500, we
c a n n o t c o n c l u d e
t h a t
t h e
l a n g u a g e
i n t h e amended o p t i o n
as
a m a t t e r
o f
l a w
m o d i f i e d
o r
w a i v e d
t h e
m o s t - f a v o r e d - n a t i o n
c l a u s e
i n t h e
R u s s e l l s '
o r i g i n a l
o p t i o n
a g r e e m e n t .
T h e r e f o r e ,
a
q u e s t i o n
f o r
t h e
j u r y
e x i s t s
as
t o
w h e t h e r
t h e
amended
o p t i o n
a g r e e m e n t
m o d i f i e d
o r
w a i v e d
t h e
m o s t - f a v o r e d - n a t i o n
c l a u s e
i n
t h e
R u s s e l l s '
o r i g i n a l
o p t i o n a g r e e m e n t ,
and
a summary
j u d g m e n t
f o r
t h e
IDB
and
a g a i n s t
t h e
R u s s e l l s
on
t h i s g r o u n d i s n o t
p r o p e r . "
7
So.
3d
a t
334.
B a s e d
on
o u r
h o l d i n g
i n McLemore,
we
l i k e w i s e h o l d
i n t h i s c a s e t h a t w h e t h e r t h e amendment t o
t h e
o p t i o n a g r e e m e n t s m o d i f i e d
o r w a i v e d t h e
m o s t - f a v o r e d - n a t i o n
c l a u s e
i n S o u t h d a l e ' s and
W h e e l e r / P h i l l i p s ' s
o r i g i n a l
o p t i o n
a g r e e m e n t s
i s
a
q u e s t i o n
t o
r e s o l v e d
by
t h e
j u r y ,
and
a
summary j u d g m e n t on
t h i s g r o u n d was
e r r o r .
32
1070484; 1070487; 1070514
We
a l s o
a d d r e s s e d
i n McLemore
a r g u m e n t s made
by
t h e
R u s s e l l s and
t h e McLemore g r o u p t h a t t h e
t r i a l
c o u r t e r r e d
i n
e n t e r i n g a summary j u d g m e n t on t h e i r b r e a c h - o f - c o n t r a c t
c l a i m
b e c a u s e , t h e y s a i d , a g e n u i n e i s s u e o f m a t e r i a l f a c t e x i s t s as
t o
t h e
m e a n i n g
and
a p p l i c a t i o n
o f
t h e
m o s t - f a v o r e d - n a t i o n
c l a u s e
i n t h e o p t i o n a g r e e m e n t s .
I n McLemore, t h e
IDB
a r g u e d
t h a t u n d e r t h e d o c t r i n e o f m e r g e r t h e o p t i o n a g r e e m e n t s had
no
e f f e c t once t h e d e e d s were e x e c u t e d and
d e l i v e r e d .
We
s t a t e d
i n McLemore:
"Thus,
t h e mere
e x e c u t i o n
and
d e l i v e r y
o f
a
d e e d
does
n o t
merge
t h e
c o n s i d e r a t i o n
i n
t h e
c o n t r a c t
o f
s a l e
i n t o
t h e
d e e d .
As
we
s t a t e d
i n
L i p s c o m b v.
T u c k e r ,
294
A l a .
246,
256,
314
So.
2d
840,
848
( 1 9 7 5 ) :
" ' I f
t h e
r e c e i p t
o f
v a l u a b l e
c o n s i d e r a t i o n
i s
r e c i t e d
i n
a d e e d ,
t h e
r e c i t a l
i s m e r e l y p r i m a
f a c i e e v i d e n c e
o f
t h e
f u l l
a g r e e d
c o n s i d e r a t i o n
and
p a r o l
e v i d e n c e
i s a d m i s s i b l e
t o show t h a t
o t h e r
and
a d d i t i o n a l v a l u a b l e
c o n s i d e r a t i o n
was
t o
be
r e c e i v e d
by
t h e
g r a n t o r
s u c h
as
a d d i t i o n a l
money
o r
c r e d i t
on
a
p r e - e x i s t i n g d e b t o r m o r t g a g e . '
" H e r e ,
t h e d e e d s
i n q u e s t i o n
p r o v i d e
t h a t
t h e
c o n s i d e r a t i o n
i s
'$10.00
and
o t h e r
v a l u a b l e
c o n s i d e r a t i o n . '
T h i s
r e c i t a t i o n
o f
c o n s i d e r a t i o n
p e r m i t s i n q u i r y i n t o l i k e c o n s i d e r a t i o n f o r t h e
s a l e
o f
t h e
p r o p e r t i e s ,
and
t h e
R u s s e l l s '
and
t h e
McLemore g r o u p ' s b r e a c h - o f - c o n t r a c t
c l a i m s
a r e
n o t
b a r r e d
by
t h e
d o c t r i n e
o f m e r g e r . "
33
1070484; 1070487; 1070514
7
So.
3d
a t
336.
B a s e d
on
o u r
h o l d i n g
i n McLemore,
we
l i k e w i s e
h o l d
i n
t h i s
c a s e
t h a t
S o u t h d a l e ' s
and
W h e e l e r / P h i l l i p s ' s b r e a c h - o f - c o n t r a c t
c l a i m s a r e n o t b a r r e d
by
t h e d o c t r i n e o f m e r g e r , and
a summary j u d g m e n t on
t h i s g r o u n d
was
e r r o r .
F i n a l l y ,
we
e x a m i n e d
t h e
l a n g u a g e
o f
t h e
o p t i o n
a g r e e m e n t s i n McLemore t o d e t e r m i n e w h e t h e r t h e y a r e a m b i g u o u s
and w h e t h e r "a g e n u i n e i s s u e o f m a t e r i a l f a c t e x i s t s f o r
t h e
j u r y
as
t o
w h e t h e r
t h e
S h e l t o n
p r o p e r t y
was
p a r t
o f
' t h e
p r o j e c t
p l a n n e d
f o r
t h i s
P r o p e r t y '
and,
i f
t h e
S h e l t o n
p r o p e r t y
i s p a r t
o f
t h e
p r o j e c t , w h e t h e r ,
l i k e
S h e l t o n ,
t h e
R u s s e l l s and
t h e McLemore g r o u p s h o u l d have b e e n p a i d $12,000
p e r
a c r e . "
7 So.
3d
a t
337.
A f t e r r e v i e w i n g
t h e
e v i d e n c e
p r e s e n t e d ,
t h e
v a s t
m a j o r i t y
o f w h i c h
i s
i d e n t i c a l
i n
t h i s
c a s e , we
c o n c l u d e d i n McLemore:
"We
a g r e e
w i t h
t h e
R u s s e l l s
and
t h e
McLemore
g r o u p t h a t t h e l a n g u a g e i n t h e
o p t i o n a g r e e m e n t s i s
a m b i g u o u s ,
t h a t
i t c a n n o t be
r e s o l v e d
by
r u l e s
o f
c o n t r a c t
c o n s t r u c t i o n ,
and
t h a t
t h e y
p r e s e n t e d
s u b s t a n t i a l
e v i d e n c e
c r e a t i n g
a
g e n u i n e
i s s u e
o f
m a t e r i a l
f a c t
f o r
t h e
j u r y
as
t o
t h e
m e a n i n g
and
a p p l i c a t i o n o f t h e m o s t - f a v o r e d - n a t i o n c l a u s e i n t h e
o p t i o n
a g r e e m e n t s .
S p e c i f i c a l l y ,
t h e
p r o v i s i o n s ,
' [ i ] f
P u r c h a s e r e l e c t s t o e x e r c i s e
t h i s
O p t i o n
t h e
p u r c h a s e p r i c e f o r t h e
P r o p e r t y
s h a l l be
d e t e r m i n e d
as
f o l l o w s '
and
' t h e
p u r c h a s e
p r i c e
s h a l l
i n
no
e v e n t be
l e s s t h a n
t h e
p r i c e p e r
a c r e
p a i d
t o
any
o t h e r l a n d o w n e r i n c l u d e d i n t h e p r o j e c t p l a n n e d
f o r
34
1070484; 1070487; 1070514
t h e
P r o p e r t y '
a r e
a m b i g u o u s
b e c a u s e
r e a s o n a b l e
p e r s o n s c o u l d
d i f f e r
on w h e t h e r
' t h e p r i c e p e r
a c r e
p a i d t o any
o t h e r l a n d o w n e r i n c l u d e d i n t h e p r o j e c t '
r e f e r s
t o a p u r c h a s e p r i c e p a i d
o n l y by
t h e
IDB
o r
t o
a
p u r c h a s e
p r i c e
p a i d
by
any
p u r c h a s e r
f o r
p r o p e r t y
i n c l u d e d
i n
t h e
p r o j e c t .
I f
t h e
i m p l i c a t i o n i s t h a t t h e l a n g u a g e r e f e r s t o p a y m e n t s
o n l y by t h e IDB,
t h e n t h e m o s t - f a v o r e d - n a t i o n
c l a u s e
i s
t r i g g e r e d o n l y
i f t h e
IDB
p a i d
o t h e r
l a n d o w n e r s
more t h a n i t p a i d t h e
s e l l e r s - - t h e R u s s e l l s and
t h e
McLemore
g r o u p .
I f
t h e
l a n g u a g e
r e f e r s
t o
a
p u r c h a s e p r i c e p a i d by any p u r c h a s e r on p r o p e r t y
f o r
t h e p r o j e c t , t h e n t h e m o s t - f a v o r e d - n a t i o n c l a u s e
i s
t r i g g e r e d
r e g a r d l e s s
o f w h e t h e r t h e p u r c h a s e
p r i c e
was
p a i d by
t h e
IDB
o r a n o t h e r
e n t i t y .
R e a s o n a b l e
p e r s o n s
c o u l d
d i f f e r
o v e r w h e t h e r t h e
r e f e r e n c e
t o
' p r i c e
p e r
a c r e
p a i d
t o
any
o t h e r
l a n d o w n e r '
i n c l u d e s
by
i m p l i c a t i o n t h e
i n t e r l i n e a t i o n
o f
t h e
p h r a s e
'by
t h e
IDB'
so t h a t t h e
c o n t r a c t means
t h a t
t h e
m o s t - f a v o r e d - n a t i o n
c l a u s e
i s
t r i g g e r e d
o n l y
when t h e p u r c h a s e p r i c e p a i d by t h e IDB
t o any
o t h e r
l a n d o w n e r
e x c e e d s
t h e
p r i c e
p a i d
t o
t h e
s e l l e r .
Thus, a j u r y q u e s t i o n
i s p r e s e n t e d .
A d d i t i o n a l l y ,
d e p e n d i n g on r e s o l u t i o n o f t h e above a m b i g u i t y ,
t h e
e v i d e n c e i s i n c o n f l i c t
as t o w h e t h e r S h e l t o n
was
a
' l a n d o w n e r
i n c l u d e d
i n
t h e
p r o j e c t . '
B e c a u s e
r e a s o n a b l e
p e r s o n s can
d i f f e r
on t h e m e a n i n g o f
t h e
c l a u s e ,
i . e . , w h e t h e r t h e
l a n g u a g e
' p r i c e p e r
a c r e
p a i d t o any
o t h e r l a n d o w n e r i n c l u d e d i n t h e p r o j e c t '
o b l i g a t e d
t h e
IDB
t o
pay
t h e
R u s s e l l s
and
t h e
McLemore
g r o u p
$12,000
p e r
a c r e
and
w h e t h e r
t h e
S h e l t o n p r o p e r t y was
i n c l u d e d as p a r t o f t h e
p r o j e c t
s i t e ,
t h e
e v i d e n c e p r e s e n t s
q u e s t i o n s
f o r t h e
j u r y
t o r e s o l v e , and
t h e summary j u d g m e n t f o r t h e
IDB
i s
r e v e r s e d . "
7
So.
3d
a t 3 3 8 - 3 9 .
B a s e d
on
o u r
h o l d i n g
i n McLemore,
we
l i k e w i s e
h o l d
i n
t h i s
c a s e
t h a t
t h e
l a n g u a g e
i n t h e
o p t i o n
a g r e e m e n t s
i s
a m b i g u o u s
and
t h a t
t h e
e v i d e n c e
p r e s e n t s
q u e s t i o n s
f o r
a
j u r y
t o
r e s o l v e .
T h e r e f o r e ,
t h e
summary
35
1070484; 1070487; 1070514
j u d g m e n t i n f a v o r o f t h e r e m a i n i n g
p r o j e c t p a r t i c i p a n t s as
t o
S o u t h d a l e ' s and
W h e e l e r / P h i l l i p s ' s b r e a c h - o f - c o n t r a c t
c l a i m s
must be
r e v e r s e d .
I V . Summary Judgment as t o F r a u d
C l a i m s
S e c t i o n
6 - 2 - 3 8 ( l ) ,
A l a . Code
1975,
p r o v i d e s
t h a t
f r a u d
c l a i m s
a r e
s u b j e c t
t o a t w o - y e a r s t a t u t e o f
l i m i t a t i o n s .
" T h a t
s t a t u t e
o f
l i m i t a t i o n s
i s
s u b j e c t
t o
t h e
' s a v i n g
c l a u s e '
p r o v i d e d
by
§
6 - 2 - 3 [ ,
A l a
Code
1 9 7 5 ] :
" ' I n
a c t i o n s
s e e k i n g
r e l i e f
on
t h e
g r o u n d
o f
f r a u d
where
t h e
s t a t u t e
has
c r e a t e d
a
b a r ,
t h e
c l a i m
must
n o t
be
c o n s i d e r e d
as
h a v i n g
a c c r u e d
u n t i l
t h e
d i s c o v e r y
by
t h e
a g g r i e v e d
p a r t y
o f
t h e
f a c t c o n s t i t u t i n g t h e f r a u d , a f t e r w h i c h
he
must
h a v e
two
y e a r s
w i t h i n
w h i c h
t o
p r o s e c u t e
h i s a c t i o n . ' "
Ex
p a r t e
S e a b o l ,
782
So.
2d
212,
216
( A l a . 2000 ).
S e c t i o n
6-2-3, A l a . Code 1975,
s u p p l i e s an o b j e c t i v e t e s t ,
t o l l i n g
t h e
s t a t u t e
o f
l i m i t a t i o n s
on
a f r a u d
c l a i m
u n t i l
t h e
a g g r i e v e d
p a r t y d i s c o v e r s o r , i n t h e e x e r c i s e o f r e a s o n a b l e
c a r e ,
s h o u l d
h a v e d i s c o v e r e d ,
t h e
f a c t s c o n s t i t u t i n g t h e
f r a u d .
S e a b o l ,
782
So.
2d
a t
216;
F o r e m o s t
I n s .
Co.
v. Parham,
6
93
So.
2d
409,
421
( A l a .
1 9 9 7 ) .
T h e r e f o r e ,
t h e
l i m i t a t i o n s
p e r i o d
commences when t h e p l a i n t i f f d i s c o v e r s t h e f r a u d o r when f a c t s
a r e known " ' w h i c h w o u l d p u t
a r e a s o n a b l e
m i n d on n o t i c e
t h a t
36
1070484; 1070487; 1070514
f a c t s
t o
s u p p o r t
a c l a i m
o f
f r a u d m i g h t be
d i s c o v e r e d
upon
i n q u i r y . ' "
A u t o - O w n e r s I n s .
Co.
v. A b s t o n ,
822
So.
2d
1187,
1195
( A l a . 2001)
( q u o t i n g J e f f e r s o n C o u n t y T r u c k G r o w e r s A s s ' n
v. T a n n e r , 341
So.
2d
485,
488
( A l a . 1 9 7 7 ) ) .
S o u t h d a l e
and
W h e e l e r / P h i l l i p s
a r g u e
t h a t
t h e y
d i d
n o t
g a i n k n o w l e d g e o f f a c t s t h a t w o u l d h a v e p u t
a r e a s o n a b l e m i n d
on
n o t i c e
t h a t
t h e y
s h o u l d
i n q u i r e
f u r t h e r
i n t o
t h e
c i r c u m s t a n c e s
o f
t h e
s a l e
o f
t h e
S h e l t o n
p r o p e r t y
u n t i l
a t
l e a s t
O c t o b e r 2002.
T h e r e f o r e ,
t h e y a r g u e ,
t h e
s t a t u t e
o f
l i m i t a t i o n s d i d n o t b e g i n t o r u n
u n t i l O c t o b e r 2002, and
t h e y
f i l e d
t h e i r
i n i t i a l
c o m p l a i n t
i n May
2004, w e l l
w i t h i n
t h e
t w o - y e a r
s t a t u t e
o f
l i m i t a t i o n s .
The
p r o j e c t
p a r t i c i p a n t s
a r g u e t h a t S o u t h d a l e and
W h e e l e r / P h i l l i p s were p u t
on
n o t i c e
as
t o
p o t e n t i a l
f r a u d
c l a i m s
i n
A p r i l
2002 when
G e o r g e
n o t i f i e d t h e i r r e p r e s e n t a t i v e s
t h a t CSX
was
g o i n g t o p u r c h a s e
t h e
S h e l t o n
p r o p e r t y .
T h e r e f o r e ,
t h e
p r o j e c t
p a r t i c i p a n t s
a r g u e , t h e
s t a t u t e o f
l i m i t a t i o n s
on
t h e
f r a u d
c l a i m s
r a n
i n
A p r i l 2004, and
t h e
c o m p l a i n t
f i l e d
t h e
f o l l o w i n g month
was
u n t i m e l y .
The
t r i a l
c o u r t
c o n c l u d e d
t h a t
t h e
s t a t u t e
o f
l i m i t a t i o n s b a r r e d
t h e
t o r t
c l a i m s .
A l t h o u g h
M c K i n n e y ,
a
s h a r e h o l d e r
i n
S o u t h d a l e ,
and
W i l l i a m s , c o u n s e l
f o r W h e e l e r / P h i l l i p s , were i n f o r m e d i n A p r i l
37
1070484; 1070487; 1070514
2002 t h a t an o p t i o n had b e e n o b t a i n e d
on t h e S h e l t o n
p r o p e r t y ,
G e o r g e
s h a r e d
w i t h
them
h i s
u n d e r s t a n d i n g
t h a t
CSX
was
t o
p u r c h a s e
t h a t
p r o p e r t y
as
a
t r a n s a c t i o n
s e p a r a t e
f r o m
t h e
H y u n d a i p r o j e c t .
W i l l i a m s
t e s t i f i e d t h a t he c o n t i n u e d
t o s e e k
i n f o r m a t i o n f r o m G e o r g e and M c N a i r f r o m A p r i l t h r o u g h O c t o b e r
2002 i n an
e f f o r t
t o d i s c o v e r w h e t h e r t h e
S h e l t o n
o p t i o n
had
a c t u a l l y b e e n e x e r c i s e d a t more t h a n $4,500 p e r a c r e b u t
t h a t
he was
met
w i t h a "maze" o f c o n f u s i o n
u n t i l O c t o b e r 2002, when
M c N a i r
r e f e r r e d
h i m
t o
S c o t t
A b n e y ,
one
o f
t h e
l a w y e r s
r e p r e s e n t i n g t h e S t a t e i n t h e H y u n d a i p r o j e c t . A b n e y
r e v e a l e d
t o W i l l i a m s
t h a t
t h e
S t a t e ,
n o t
CSX
as
had
b e e n
p r e v i o u s l y
r e p r e s e n t e d ,
had p u r c h a s e d t h e S h e l t o n p r o p e r t y i n A u g u s t 2002
f o r $12,000 p e r a c r e .
W i l l i a m s t h e n s h a r e d h i s k n o w l e d g e w i t h
M c K i n n e y .
The p r o j e c t p a r t i c i p a n t s a r g u e t h a t M c K i n n e y and
W i l l i a m s
were p l a c e d
on n o t i c e on A p r i l
8, 2002, when G e o r g e gave them
a c o p y o f t h e S h e l t o n
o p t i o n a g r e e m e n t and
i n f o r m e d them t h a t
CSX
w o u l d be e x e r c i s i n g t h e o p t i o n i n s t e a d o f t h e
C i t y .
They
a l s o a r g u e t h a t M c K i n n e y and
W i l l i a m s
c o u l d have o b t a i n e d
a
c o p y o f t h e p r o j e c t a g r e e m e n t and
r e a d
t h e p r o v i s i o n i n
t h a t
document c o n c e r n i n g
t h e
S h e l t o n
p r o p e r t y .
A p u b l i c
h e a r i n g
was
c o n d u c t e d t o a p p r o v e t h e
p r o j e c t a g r e e m e n t ,
t h e
p r o j e c t
38
1070484; 1070487; 1070514
p a r t i c i p a n t s s a y , and W i l l i a m s , as an a t t o r n e y , and M c K i n n e y ,
as t h e p r o b a t e j u d g e f o r
M o n t g o m e r y C o u n t y , were i n p o s i t i o n s
i n w h i c h t h e y c o u l d h a v e l e a r n e d o f t h e m e e t i n g .
S o u t h d a l e
and
W h e e l e r / P h i l l i p s
a r g u e
i n r e s p o n s e
t h a t
t h e
p r o j e c t
p a r t i c i p a n t s e n g a g e d i n an a c k n o w l e d g e d " p l o y " t o u s e CSX as
a s t r a w p u r c h a s e r i n o r d e r t o a v o i d t h e e f f e c t o f t h e m o s t -
f a v o r e d - n a t i o n
c l a u s e
and
t h a t
t h i s
" p l o y "
was
c a r e f u l l y
h i d d e n f r o m them u n t i l
s e v e r a l months a f t e r
t h e y
s o l d
t h e i r
p r o p e r t y f o r
$4,500 p e r a c r e , r a t h e r t h a n t h e $12,000 p e r a c r e
p a i d t o
S h e l t o n .
I n L i b e r t y N a t i o n a l L i f e I n s u r a n c e Co. v. P a r k e r , 703 So.
2d
307
, 308
( A l a . 1
9 9 7 ) ,
t h i s
C o u r t
s t a t e d
t h a t
" [ t ] h e
q u e s t i o n
o f
when
t h e
p a r t y
d i s c o v e r e d
o r
s h o u l d
h a v e
d i s c o v e r e d
t h e f r a u d i s g e n e r a l l y one f o r t h e j u r y . "
The
P a r k e r
C o u r t
c o n t i n u e d ,
q u o t i n g
K e l l y v . C o n n e c t i c u t
M u t u a l
L i f e I n s u r a n c e Co., 628 So. 2d 454, 458 ( A l a . 1 9 9 3 ) :
" ' " [ F ] r a u d
i s d i s c o v e r a b l e
as a m a t t e r o f
l a w
f o r p u r p o s e s
o f
t h e
s t a t u t e
o f
l i m i t a t i o n s
when
one
r e c e i v e s
d o c u m e n t s
t h a t w o u l d p u t one on s u c h n o t i c e t h a t t h e
f r a u d r e a s o n a b l y s h o u l d be d i s c o v e r e d . "
...
H o w e v e r , ... d o c u m e n t s
t h a t a r e v a g u e o r
t h a t
do n o t r e a s o n a b l y
i n d i c a t e
t h a t
a
f r a u d
h a s
o c c u r r e d ,
b a s e d
on
t h e
c i r c u m s t a n c e s
o f
e a c h
c a s e ,
w i l l
n o t
" w a r r a n t a f i n d i n g t h a t t h e f r a u d c l a i m i s
b a r r e d as a m a t t e r o f l a w . " '
39
1070484; 1070487; 1070514
"628
So. 2d a t 458 ( e m p h a s i s a d d e d ; o t h e r
e m p h a s i s
o m i t t e d )
( q u o t i n g H i c k o x v. S t o v e r , 551 So. 2d 259,
262
( A l a .
1 9 8 9 ) ) . "
( F o o t n o t e
o m i t t e d . )
We
r e c e n t l y
a f f i r m e d
t h e c o n c e p t
t h a t
when
a
p a r t y
d i s c o v e r e d
o r s h o u l d
have
d i s c o v e r e d
f r a u d
i s n o r m a l l y
a
q u e s t i o n f o r
t h e j u r y .
I n J o n e s v. A l f a M u t u a l I n s u r a n c e Co.,
1 So. 3d 23, 31 ( A l a . 2 0 0 8 ) , we s t a t e d :
" A l f a n o t e s t h a t t h i s C o u r t h a s p r e v i o u s l y h e l d
t h a t
' " f r a u d i s d i s c o v e r a b l e as a m a t t e r o f l a w
f o r
p u r p o s e s
o f t h e s t a t u t e o f
l i m i t a t i o n s
when one
r e c e i v e s d o c u m e n t s t h a t w o u l d p u t one on s u c h n o t i c e
t h a t t h e f r a u d
r e a s o n a b l y
s h o u l d be
d i s c o v e r e d . " '
K e l l y v . C o n n e c t i c u t Mut. L i f e I n s .
Co., 628 So. 2d
454,
458 ( A l a . 1993) ( q u o t i n g H i c k o x v . S t o v e r , 551
So.
2d 259, 262
( A l a . 1
98
9 ) ,
o v e r r u l e d
on
o t h e r
g r o u n d s , F o r e m o s t I n s .
Co. v . Parham, 693 So. 2d 409
( A l a .
1 9 9 7 ) ) .
The s e n t e n c e
i m m e d i a t e l y
p r e c e d i n g
t h e
a b o v e - q u o t e d
s e n t e n c e
f r o m
K e l l y ,
h o w e v e r ,
s t a t e s :
'"The q u e s t i o n o f when a p l a i n t i f f
s h o u l d
h a v e d i s c o v e r e d
f r a u d s h o u l d be t a k e n away f r o m t h e
j u r y a n d d e c i d e d
as a m a t t e r o f l a w o n l y i n c a s e s
where
t h e p l a i n t i f f
a c t u a l l y
knew o f
f a c t s
t h a t
w o u l d
h a v e p u t a
r e a s o n a b l e
p e r s o n
on
n o t i c e o f
f r a u d . " '
628 So. 2d a t 458 ( q u o t i n g H i c k s v. G l o b e
L i f e
& A c c . I n s . Co., 584 So. 2d 458 , 463 ( A l a .
1 9 9 1 ) ,
o v e r r u l e d
on
o t h e r
g r o u n d s ,
F o r e m o s t I n s .
Co.,
s u p r a ) ; s e e a l s o G i l m o r e v. M & B R e a l t y Co.,
895 So. 2d 200, 210
( A l a . 2004)
( ' " ' [ t ] h e
q u e s t i o n
o f when a p a r t y d i s c o v e r e d o r s h o u l d have
d i s c o v e r e d
t h e f r a u d i s g e n e r a l l y one f o r
t h e j u r y ' " '
( q u o t i n g
Ex
p a r t e
S e a b o l ,
782 So. 2d 2 1 2 , 216
( A l a . 2 0 0 0 ) ,
q u o t i n g
i n t u r n
L i b e r t y
N a t ' l
L i f e
I n s . Co. v .
P a r k e r , 703 So. 2d 307, 308 ( A l a .
1 9 9 7 ) ) ) . "
40
1070484; 1070487; 1070514
U n d e r t h e c i r c u m s t a n c e s
o f t h i s c a s e , we c a n n o t s a y
t h a t
S o u t h d a l e
and
W h e e l e r / P h i l l i p s
a c t u a l l y knew o f
f a c t s
t h a t
w o u l d have p u t
a r e a s o n a b l e
p e r s o n on n o t i c e o f f r a u d .
I t i s
u n d i s p u t e d
t h a t t h e y r e c e i v e d f r o m G e o r g e i n A p r i l 2002 a c o p y
o f t h e
S h e l t o n
o p t i o n a g r e e m e n t , a document r u n n i n g
i n
f a v o r
o f t h e C i t y and a s s i g n a b l e by t h e C i t y .
However, t h e
q u e s t i o n
i s w h e t h e r t h a t document s h o u l d have a l e r t e d them t h a t a f r a u d
had
o c c u r r e d ,
e s p e c i a l l y
when
i t was
a c c o m p a n i e d
by
t h e
e x p l a n a t i o n
G e o r g e t h o u g h t t o be
t r u e b u t
was
n o t - - t h a t
CSX
was
g o i n g t o buy
t h e p r o p e r t y .
We c a n n o t s a y t h a t t h e
S h e l t o n
o p t i o n a g r e e m e n t i s a document i n and o f i t s e l f t h a t w o u l d
p u t
one
on
n o t i c e
o f
t h e
f r a u d
h e r e
a l l e g e d .
M o r e o v e r ,
t h e
a c c o m p a n y i n g e x p l a n a t i o n , w h i c h M c K i n n e y and
W i l l i a m s
had
no
r e a s o n a t t h e t i m e t o d o u b t , w o u l d l e a d a r e a s o n a b l e
p e r s o n t o
c o n c l u d e
t h a t
t h e
m o s t - f a v o r e d - n a t i o n
c l a u s e
was
n o t
i m p l i c a t e d b e c a u s e , upon t h e p u r c h a s e o f t h e
S h e l t o n
l a n d
by
CSX,
S h e l t o n
w o u l d
n o t
be
a
" l a n d o w n e r
i n c l u d e d
i n
t h e
p r o j e c t . "
T h a t
o t h e r
d o c u m e n t s
e x i s t e d o r w o u l d come
i n t o
e x i s t e n c e
l a t e r t h a t w o u l d have a f f o r d e d s u c h n o t i c e does
n o t
a l t e r t h e s t a t u s o f t h e document t h e y s a w - - t h e S h e l t o n
o p t i o n
a g r e e m e n t - - a s
a document
i n s u f f i c i e n t
t o
p u t
them
on
s u c h
n o t i c e t h a t t h e f r a u d r e a s o n a b l y
s h o u l d have b e e n
d i s c o v e r e d .
41
1070484; 1070487; 1070514
The
f a c t s p r e s e n t e d
a t t h e t i m e t h e
e x i s t e n c e
o f t h e
S h e l t o n
o p t i o n a g r e e m e n t was
d i s c l o s e d t o M c K i n n e y and
W i l l i a m s ,
as
r e p r e s e n t a t i v e s
o f
S o u t h d a l e
and
W h e e l e r / P h i l l i p s ,
r e s p e c t i v e l y ,
a r e
n o t
c o n s i s t e n t
w i t h
t h e
u l t i m a t e
f a c t s :
t h a t CSX
e n t e r e d
i n t o a c o n t r a c t w i t h S h e l t o n
f o r t h e s a l e
o f
t h e p r o p e r t y , w h i c h was
t h e n a s s i g n e d
t o H y u n d a i and
e x e r c i s e d
by
i t , u s i n g
f u n d s
p r o v i d e d
by
t h e
S t a t e .
M c K i n n e y
and
W i l l i a m s were t h e r e f o r e n o t ,
a t t h a t t i m e ,
on n o t i c e o f
f a c t s
t h a t w o u l d have c a u s e d a l a r m when t h e y
i n i t i a l l y
l e a r n e d
o f
t h e
S h e l t o n
o p t i o n .
U n d e r t h e s e
c i r c u m s t a n c e s ,
we
c o n c l u d e
t h a t
t h e
q u e s t i o n
o f
when
t h e
f r a u d
c l a i m s
a l l e g e d
by
S o u t h d a l e and W h e e l e r / P h i l l i p s a c c r u e d i s a q u e s t i o n t h a t must
be
p r e s e n t e d
t o a j u r y .
T h e r e f o r e ,
t h e
t r i a l
c o u r t
e r r e d
i n
e n t e r i n g
t h e summary j u d g m e n t as
t o t h e
f r a u d
c l a i m s
on
t h e
b a s i s t h a t t h e y were b a r r e d
by
t h e
s t a t u t e o f
l i m i t a t i o n s .
V. Summary Judgment as t o E a c h P r o j e c t
P a r t i c i p a n t
E v e n t h o u g h we
have c o n c l u d e d
t h a t w h e t h e r
a b r e a c h
o f
c o n t r a c t
o c c u r r e d
and
w h e t h e r t h e
s t a t u t e o f
l i m i t a t i o n s
on
t h e
f r a u d
c l a i m s
was
t o l l e d
a r e
j u r y
q u e s t i o n s
and
t h a t
t h e r e f o r e
t h e
t r i a l
c o u r t
e r r e d
i n
e n t e r i n g
t h e
summary
j u d g m e n t s
on
t h o s e
g r o u n d s ,
we
may
n e v e r t h e l e s s
d e t e r m i n e
w h e t h e r
a summary
j u d g m e n t
i s
a p p r o p r i a t e .
T h i s
C o u r t ' s
42
1070484; 1070487; 1070514
r e v i e w
i s n o t
l i m i t e d t o t h e
t r i a l c o u r t ' s r e a s o n i n g ,
and
we
can
a f f i r m
a
summary
j u d g m e n t
on
any
v a l i d
l e g a l
g r o u n d
p r e s e n t e d
by
t h e
r e c o r d , w h e t h e r t h a t g r o u n d was
c o n s i d e r e d
by,
o r e v e n
i f i t was
r e j e c t e d by,
t h e
t r i a l
c o u r t ,
u n l e s s
d u e - p r o c e s s c o n s t r a i n t s r e q u i r e o t h e r w i s e .
L i b e r t y N a t ' l L i f e
I n s .
Co.
v. U n i v e r s i t y o f A l a b a m a H e a l t h S e r v s . F o u n d . ,
P.C.,
881
So.
2d
1013,
1020
( A l a . 2 0 0 3 ) .
A.
The
C i t y
The
C i t y
f i r s t
a r g u e s t h a t
t h e
C i t y was
n o t
a p a r t y
t o
t h e
o p t i o n a g r e e m e n t s e x e c u t e d by
t h e
IDB
and
t h e r e f o r e
was
n o t
l i a b l e f o r b r e a c h o f c o n t r a c t b e c a u s e , i t a r g u e s , t h e
IDB
was
n o t a c t i n g as t h e C i t y ' s a g e n t .
U n d e r s u c h
c i r c u m s t a n c e s ,
t h e
C i t y s a y s ,
i t i s n o t
l i a b l e u n d e r any
b r e a c h - o f - c o n t r a c t
t h e o r y .
We
d i s a g r e e .
P u r s u a n t t o R e s o l u t i o n No.
1 1 1 - 2 0 0 2 ,
a d o p t e d
by
t h e
C i t y
i n J u n e 2002
i n
c o n j u n c t i o n
w i t h
t h e
H y u n d a i p r o j e c t , " t h e
IDB
d i d e x e r c i s e t h e p u r c h a s e
o p t i o n s ,
b u t a s s i g n e d
i t s r i g h t s t o p u r c h a s e t h e r e u n d e r t o t h e C i t y
and
M o n t g o m e r y C o u n t y ( t h e ' C o u n t y ' ) ,
and t h e C i t y and C o u n t y e a c h
have
i s s u e d
d e b t
t o
p r o v i d e
t h e
n e c e s s a r y
f u n d s
and
h a v e
a c q u i r e d
t h e
P a r c e l s . "
As
t h e
IDB's
a s s i g n e e ,
t h e
C i t y
assumed
t h e
o b l i g a t i o n s
and
l i a b i l i t i e s
o f
t h e
a s s i g n e d
43
1070484; 1070487;
1070514
c o n t r a c t s .
M e i g h a n v . W a t t s C o n s t r . Co., 475 So. 2d 829, 834¬
35 ( A l a . 1 9 8 5 ) .
The
C i t y
a l s o a r g u e s
t h a t § 1 1 - 4 7 - 2 3 , A l a . Code
1975,
b a r s
a l l c l a i m s a g a i n s t i t . S e c t i o n 11-47-23
p r o v i d e s :
" A l l
c l a i m s
a g a i n s t
t h e m u n i c i p a l i t y
( e x c e p t
b o n d s and i n t e r e s t c o u p o n s and c l a i m s f o r damages)
s h a l l be p r e s e n t e d
t o t h e c l e r k f o r payment
w i t h i n
two y e a r s f r o m t h e a c c r u a l o f s a i d c l a i m o r s h a l l be
b a r r e d .
C l a i m s
f o r damages g r o w i n g
o u t o f
t o r t s
s h a l l
be
p r e s e n t e d
w i t h i n
s i x months
f r o m
t h e
a c c r u a l t h e r e o f o r s h a l l be
b a r r e d . "
As
t o t h e b r e a c h - o f - c o n t r a c t
c l a i m s ,
t h e
C i t y
a r g u e s
t h a t
t h e
b r e a c h
o c c u r r e d
more
t h a n
two
y e a r s
b e f o r e
W h e e l e r / P h i l l i p s and S o u t h d a l e
f i l e d
t h e i r a c t i o n ; t h e r e f o r e ,
t h e C i t y a r g u e s ,
t h o s e
c l a i m s a r e b a r r e d .
I n so a r g u i n g , t h e
C i t y assumes t h a t t h e c a u s e o f a c t i o n f o r b r e a c h
o f c o n t r a c t
a c c r u e d
e i t h e r
on M a r c h 29, 2002, when t h e S h e l t o n
o p t i o n
a g r e e m e n t was e x e c u t e d ,
o r on A p r i l 8, 2002, when t h e c o p y o f
t h e
S h e l t o n
o p t i o n
a g r e e m e n t
was
g i v e n
t o
W i l l i a m s
and
M c K i n n e y , o r on A p r i l 15, 2002, when t h e p r o j e c t a g r e e m e n t was
s i g n e d ,
o r
on
May
15,
2002,
when
W h e e l e r / P h i l l i p s
and
S o u t h d a l e
c l o s e d t h e s a l e o f t h e i r
l a n d .
We
c a n n o t
a c c e p t
any
o f
t h e
a c c r u a l
d a t e s
t h e
C i t y
a s s u m e s .
I n C i t y o f M o b i l e v . C o o k s , 915 So. 2d 29, 33 ( A l a .
2 0 0 5 ) , we
s t a t e d :
44
1070484; 1070487; 1070514
"A c a u s e o f a c t i o n a c c r u e s u n d e r § 11-47-23 when
an
a c t i o n
c a n be
m a i n t a i n e d .
C o u c h v .
C i t y o f
S h e f f i e l d , 708 So. 2d 144
( A l a . 1 9 9 8 ) ;
H i l l v. C i t y
o f
H u n t s v i l l e , 590 So. 2d 876 ( A l a .
1 9 9 1 ) .
T h i s
C o u r t h a s s t a t e d t h e f o l l o w i n g w i t h
r e g a r d t o when
a c a u s e o f a c t i o n
a c c r u e s :
"'"The
v e r y
b a s i c
and
l o n g
s e t t l e d
r u l e o f c o n s t r u c t i o n o f o u r c o u r t s i s t h a t
a s t a t u t e o f l i m i t a t i o n s b e g i n s t o r u n i n
f a v o r o f t h e p a r t y
l i a b l e f r o m t h e t i m e t h e
c a u s e o f a c t i o n
' a c c r u e s . '
The c a u s e o f
a c t i o n
' a c c r u e s '
as s o o n as t h e p a r t y i n
whose
f a v o r
i t a r i s e s
i s
e n t i t l e d
t o
m a i n t a i n
an a c t i o n
t h e r e o n . " ' "
( Q u o t i n g Ex p a r t e
F l o y d ,
7
96 So. 2d 303, 308 ( A l a .
2 0 0 1 ) ,
q u o t i n g i n t u r n G a r r e t t v . R a y t h e o n Co., 368 So. 2d 516, 518¬
19
( A l a . 1 9 7 9 ) . )
I t i s w e l l
s e t t l e d t h a t a c a u s e o f a c t i o n
f o r
b r e a c h o f c o n t r a c t a c c r u e s when t h e c o n t r a c t i s b r e a c h e d .
S t e p h e n s v . C r e e l , 429 So. 2d 278, 280 ( A l a . 1 9 8 3 ) .
H e r e , i f
a
j u r y
d e t e r m i n e s
t h a t
t h e W h e e l e r / P h i l l i p s
and
S o u t h d a l e
c o n t r a c t s
were i n f a c t b r e a c h e d ,
t h e n t h e e a r l i e s t
s u c h a
b r e a c h c o u l d have o c c u r r e d
w o u l d have b e e n A u g u s t 2002, when
S h e l t o n
c l o s e d on t h e s a l e o f h e r p r o p e r t y and was p a i d more
t h a n W h e e l e r / P h i l l i p s and S o u t h d a l e h a d b e e n p a i d f o r t h e i r
p r o p e r t y .
W h e e l e r / P h i l l i p s
and
S o u t h d a l e
f i l e d
t h e i r
c o m p l a i n t i n May 2004, w e l l w i t h i n two y e a r s o f t h e d a t e on
w h i c h
t h e i r c a u s e o f a c t i o n f o r b r e a c h o f c o n t r a c t
a c c r u e d .
T h i s
C o u r t h a s h e l d
t h a t t h e f i l i n g
o f an a c t i o n w i t h i n t h e
45
1070484; 1070487; 1070514
s i x - m o n t h
p e r i o d
i n w h i c h
a
t o r t
c l a i m
must be
f i l e d
was
s u f f i c i e n t p r e s e n t m e n t o f t h e c l a i m t o c o m p l y w i t h §
1 1 - 4 7 - 2 3 .
D i e m e r t
v.
C i t y
o f
M o b i l e ,
474
So.
2d
663
( A l a . 1
9 8 5 ) .
L i k e w i s e ,
t h e
f i l i n g
o f t h e
a c t i o n by
W h e e l e r / P h i l l i p s
and
S o u t h d a l e
w i t h i n
t h e t w o - y e a r
p e r i o d
i n w h i c h a b r e a c h - o f -
c o n t r a c t
c l a i m must be
f i l e d was
s u f f i c i e n t p r e s e n t m e n t o f t h e
c l a i m
t o
c o m p l y
w i t h
§
1 1 - 4 7 - 2 3 .
The
b r e a c h - o f - c o n t r a c t
c l a i m s
a g a i n s t
t h e C i t y a r e n o t b a r r e d
by §
1 1 - 4 7 - 2 3 .
We
t u r n now
t o t h e t o r t
c l a i m s .
T h i s C o u r t has
h e l d :
"Some
p r e s e n t a t i o n
o f
t h e
c l a i m
w i t h i n
s i x
months o f i t s a c c r u a l i s m a n d a t o r y .
F r a z i e r v. C i t y
o f M o b i l e ,
577 So. 2d 439
( A l a . 1 9 9 1 ) .
A c a u s e o f
a c t i o n a c c r u e s as s o o n as t h e p a r t y
i n whose
f a v o r
i t a r i s e s i s e n t i t l e d t o m a i n t a i n an a c t i o n t h e r e o n .
B u c k v.
C i t y o f R a i n s v i l l e , 572
So.
2d
419 ( A l a .
1 9 9 0 ) .
I n D i e m e r t v. C i t y o f M o b i l e ,
474 So. 2d
663
( A l a .
1 9 8 5 ) , we
h e l d
t h a t
t h e
f i l i n g
o f an
a c t i o n
w i t h i n
t h e
s i x - m o n t h
p e r i o d
was
s u f f i c i e n t
p r e s e n t m e n t o f t h e c l a i m t o c o m p l y w i t h §§ 11-47-23
and -192, D i e m e r t , a t
666."
H i l l v. C i t y o f H u n t s v i l l e , 590 So. 2d 876, 876
( A l a . 1 9 9 1 ) .
I n I v o r y v. F i t z p a t r i c k , 445 So. 2d 262, 264
( A l a . 1 9 8 4 ) ,
we
n o t e d t h a t t h e n o t i c e - o f - c l a i m s t a t u t e i s n o t m e r e l y a s t a t u t e
o f
l i m i t a t i o n s , b u t i s "a s t a t u t e o f n o n c l a i m s i m i l a r t o t h e
p r o b a t e n o n c l a i m s t a t u t e . "
F u r t h e r m o r e , a m u n i c i p a l i t y c a n n o t
be
h e l d
l i a b l e
f o r t h e
i n t e n t i o n a l t o r t s o f i t s e m p l o y e e s .
46
1070484; 1070487; 1070514
See
§
1 1 - 4 7 - 1 9 0 ,
A l a .
Code
1975;
Cremeens
v.
C i t y
o f
M o n t g o m e r y, 779
So.
2d
1190
( A l a . 2 0 0 0 ) .
I t
i s
u n d i s p u t e d
t h a t
n e i t h e r
S o u t h d a l e
n o r
W h e e l e r / P h i l l i p s
p r e s e n t e d
a
c l a i m
t o
t h e
C i t y
u n t i l
t h e y
f i l e d
t h e i r
c o m p l a i n t .
T h i s
f a i l u r e
t o
f i l e
t h e
s t a t u t o r i l y
m a n d a t e d c l a i m w i t h i n s i x months a c t s
as
a p r o c e d u r a l
b a r
t o
a l l
t o r t
c l a i m s
a g a i n s t
t h e
C i t y .
The
summary
j u d g m e n t
e n t e r e d
i n i t s f a v o r
as
t o S o u t h d a l e
and
W h e e l e r / P h i l l i p s ' s
t o r t c l a i m s
i s due
t o be
a f f i r m e d on
t h i s a l t e r n a t i v e g r o u n d ;
h o w e v e r , t h e summary j u d g m e n t e n t e r e d
i n i t s f a v o r
as
t o
t h e
b r e a c h - o f - c o n t r a c t
c l a i m i s r e v e r s e d
f o r t h e r e a s o n s s t a t e d i n
P a r t
I I I o f
t h i s
o p i n i o n .
7
B.
B r i g h t
S o u t h d a l e and W h e e l e r / P h i l l i p s a r g u e t h a t t h e
t r i a l
c o u r t
e r r e d i n e n t e r i n g a summary j u d g m e n t i n B r i g h t ' s f a v o r on
t h e
b a s i s
o f h i s S t a t e - a g e n t i m m u n i t y .
B r i g h t c o n t e n d s t h a t
t h e
t r i a l
c o u r t
c o r r e c t l y
c o n c l u d e d
t h a t
he
i s
e n t i t l e d
t o
i m m u n i t y i n h i s
i n d i v i d u a l
c a p a c i t y .
7On
r e h e a r i n g ,
t h e C i t y a r g u e s t h a t i t i s e n t i t l e d t o same
i m m u n i t y t h a t i s a c c o r d e d t h e
IDB.
B e c a u s e t h i s a r g u m e n t
was
r a i s e d f o r t h e
f i r s t
t i m e on r e h e a r i n g ,
we c a n n o t c o n s i d e r i t .
D e n n i s v. N o r t h c u t t ,
923
So.
2d
275
( A l a . 2 0 0 5 ) .
47
1070484; 1070487; 1070514
S o u t h d a l e and W h e e l e r / P h i l l i p s
r e l y on Ex p a r t e Cranman,
792 So. 2d 392 ( A l a . 2 0 0 0 ) , i n w h i c h t h i s C o u r t r e s t a t e d t h e
r u l e g o v e r n i n g S t a t e - a g e n t i m m u n i t y .
8
The C o u r t a l s o
s t a t e d
i n Cranman e x c e p t i o n s
t o t h a t
r u l e ,
i . e . , when a S t a t e
a g e n t
i s n o t e n t i t l e d t o i m m u n i t y :
" N o t w i t h s t a n d i n g
a n y t h i n g t o t h e c o n t r a r y i n t h e
f o r e g o i n g s t a t e m e n t o f t h e r u l e , a S t a t e a g e n t
s h a l l
n o t be immune f r o m
c i v i l
l i a b i l i t y
i n h i s o r h e r
p e r s o n a l
c a p a c i t y
f i
" ( 2 )
when
t h e
S t a t e
a g e n t
a c t s
w i l l f u l l y ,
m a l i c i o u s l y ,
f r a u d u l e n t l y , i n b a d f a i t h , b e y o n d h i s
o r h e r a u t h o r i t y , o r u n d e r a m i s t a k e n i n t e r p r e t a t i o n
o f t h e
l a w . "
792
So. 2d a t 405.
S o u t h d a l e and W h e e l e r / P h i l l i p s
c o n t e n d
t h a t B r i g h t , i n o b t a i n i n g t h e o p t i o n on t h e S h e l t o n
p r o p e r t y ,
i s
n o t e n t i t l e d
t o i m m u n i t y
b e c a u s e ,
t h e y
s a y , he
a c t e d
w i l l f u l l y , m a l i c i o u s l y , f r a u d u l e n t l y , i n
b a d f a i t h , and b e y o n d
h i s
a u t h o r i t y .
B r i g h t
t e s t i f i e d as f o l l o w s i n h i s d e p o s i t i o n
c o n c e r n i n g
h i s a u t h o r i t y t o o b t a i n t h e o p t i o n f r o m S h e l t o n on b e h a l f o f
t h e
C i t y :
8Ex p a r t e Cranman, 792 So. 2d 392 ( A l a . 2 0 0 0 ) , was d e c i d e d
by a p l u r a l i t y o f t h i s C o u r t .
I n Ex p a r t e
B u t t s , 775 So. 2d
173
( A l a . 2 0 0 0 ) , t h e C o u r t a d o p t e d t h e t e s t f o r S t a t e - a g e n t
i m m u n i t y a n n o u n c e d i n Cranman.
48
1070484; 1070487; 1070514
"Q.
B e f o r e
you went o u t and met w i t h - - a n d
s i g n e d
t h e
S h e l t o n
o p t i o n
c o n t r a c t ,
d i d you
g e t
c o u n c i l
a p p r o v a l
t o b u y
t h a t
p r o p e r t y
b e f o r e
you went o u t
t h e r e ?
f i
"A.
T h a t
m o r n i n g ,
no.
S p e c i f i c a l l y
t o do
t h a t
t r a n s a c t i o n , n o t - -
"Q.
Okay.
"A.
- - t h a t I
r e c a l l .
"Q.
And I d i d t h e math, and I'm
r o u n d i n g up
h e r e .
B u t 93 a c r e s a t $12,000 an a c r e was a b o u t a 1.1
m i l l i o n - d o l l a r
commitment.
Does
t h a t
s o u n d
a b o u t r i g h t ?
"A.
I f y o u r numbers a r e r i g h t ,
y e a h .
"Q.
I n o r d e r
t o s p e n d
1.1
m i l l i o n
o f t h e C i t y ' s
money
t o
buy
l a n d ,
w o u l d
you
h a v e
n e e d e d
a u t h o r i z a t i o n f r o m t h e c i t y
c o u n c i l ?
f i
"A.
Y e a h ,
w o u l d
I - -
I
c o u l d
h a v e
g o t t e n
i t
a f t e r w a r d s .
f i
"Q.
B u t i f I'm
f o l l o w i n g y o u r t e s t i m o n y ,
when you
went o u t t h e r e t h a t day ... t o g e t t h a t
o p t i o n ,
you
w e r e n ' t
r e a l l y
c o n c e r n e d a b o u t
t h e money
b e c a u s e
you knew somebody
e l s e was
g o i n g
t o
a c t u a l l y p a y f o r i t ?
"A.
R i g h t .
I f e l t t h e y w o u l d .
"Q.
So w o u l d
i t be
f a i r
t o s a y , t h e n ,
you were
g e t t i n g t h i s o p t i o n e i t h e r f o r t h e S t a t e o r f o r
CSX?
49
1070484; 1070487; 1070514
"A.
I was
g e t t i n g
an
o p t i o n .
I d i d n ' t know who
I
was
g e t t i n g
i t
f o r .
And
I
was
s i g n i n g
on
b e h a l f
o f t h e mayor.
"Q.
B u t
you
knew
you
w e r e n ' t
g e t t i n g
i t f o r
t h e
C i t y ?
"A.
I knew I was
c o m m i t t i n g t h e
C i t y ,
t o o ,
b e c a u s e
I was
p u t t i n g my name as mayor on
t h e r e .
"Q.
You
d i d n ' t
have
t h e
a u t h o r i t y
t o
do
t h a t
f o r
t h e
C i t y ,
d i d you?
"A.
To
my
k n o w l e d g e ,
i t had
n o t
gone
b e f o r e
t h e
c i t y c o u n c i l s p e c i f i c a l l y f o r t h i s
t r a n s a c t i o n .
Now,
t h e r e
may
be
a r e s o l u t i o n o u t
t h e r e
g i v i n g
me
g e n e r a l
a u t h o r i t y t o n e g o t i a t e
c o n t r a c t s ,
o r
a s t a t u t e ,
as p a r t
o f my
j o b
as
t h e mayor.
So
t h a t
may
be
o u t
t h e r e
t h a t
I'm
n o t
e v e n aware
a b o u t
a t
t h i s
p o i n t .
I
n e e d
t o
do
some
r e s e a r c h
t o d e t e r m i n e
t h a t .
"Q.
The
day
you
went
o u t
t h e r e
t o
do
t h a t ,
i t
s o u n d s t o me
l i k e you knew you w e r e n ' t s p e n d i n g
t h e
C i t y ' s money when you
g o t
t h a t
o p t i o n .
"A.
You
d o n ' t know t h a t .
I d i d n ' t know t h a t .
A l l
I know, t h i s
was
c r i t i c a l
and
i m p o r t a n t
t o
me
as mayor
t o
d e l i v e r
on
b e h a l f
o f
t h e
C i t y
an
o p t i o n
t o
t i e t h i s
p r o p e r t y
down
t o make
t h e
d e a l . "
B r i g h t
t e s t i f i e d
t h a t
he
had
n e v e r s e e n t h e
e - m a i l
f r o m
H e m p h i l l ; he
t h e n
t e s t i f i e d :
"Q.
...
[ I ] f you
had
b e e n g i v e n
t h i s
e - m a i l
[ f r o m
H e m p h i l l ] ,
w o u l d
you
have c h a n g e d
t h e
way
you
h a n d l e d
t h i s ?
f l
50
1070484; 1070487; 1070514
"A. L e t me a n s w e r .
No.
T h i s was i m p o r t a n t
f o r
us
t o make t h i s f o r
o u r S t a t e , and I t h o u g h t i t - ¬
t h i s
was
n o t h i n g
s i g n i f i c a n t
t h a t
h a d any
i m p r e s s i o n on m e - - i m p a c t on me w h a t s o e v e r .
We
had
p a i d - - o r
t h e IDB h a d p a i d t h e l a n d o w n e r s
d o u b l e what i t
was w o r t h a l r e a d y , and t h i s was
an
1 1 t h - h o u r
t r a n s a c t i o n
t o make
t h e
d e a l
h a p p e n .
E v e r y b o d y h a s g o t t o keep t h a t i n
t h e
f o c u s . "
The
f o r e g o i n g
t e s t i m o n y
s e r v e s as s u b s t a n t i a l e v i d e n c e
t h a t
B r i g h t was a c t i n g b e y o n d h i s a u t h o r i t y .
A l t h o u g h B r i g h t d e n i e d
t h a t he was aware t h a t t h e o p t i o n
a g r e e m e n t s on t h e p a r c e l s
o t h e r
t h a n t h e S h e l t o n
p r o p e r t y
c o n t a i n e d a m o s t - f a v o r e d - n a t i o n c l a u s e ,
t h e r e i s s u b s t a n t i a l
e v i d e n c e
i n d i c a t i n g
t h a t he was aware o f t h e c l a u s e i n
t h e
o t h e r o p t i o n a g r e e m e n t s , o f t h e c o n s e q u e n c e s o f t r i g g e r i n g i t ,
and o f h i s
p a r t i c i p a t i o n i n
t h e e f f o r t t o c i r c u m v e n t i t . U n d e r
t h e c i r c u m s t a n c e s ,
he i s
n o t e n t i t l e d t o i m m u n i t y as a m a t t e r
o f
l a w .
The
t r i a l
c o u r t
e r r e d
i n e n t e r i n g
t h e summary
j u d g m e n t as t o t h e c l a i m s
a g a i n s t
B r i g h t i n h i s
i n d i v i d u a l
c a p a c i t y , and t h a t j u d g m e n t i s due t o be
r e v e r s e d .
9
9On r e h e a r i n g ,
B r i g h t a r g u e s t h a t b e c a u s e a l l a c t i o n s he
t o o k i n c o n n e c t i o n
w i t h o b t a i n i n g t h e o p t i o n were t a k e n i n h i s
c a p a c i t y as mayor, no c l a i m s a c c r u e d a g a i n s t h i m i n d i v i d u a l l y ;
t h a t any t o r t
c l a i m s
a g a i n s t h i m a r e b a r r e d by § 11-47-23
b e c a u s e he was a t a l l t i m e s a c t i n g i n h i s c a p a c i t y as mayor;
and t h a t he i s
n o t a m e n a b l e t o s u i t i n
h i s i n d i v i d u a l
c a p a c i t y
f o r
t h e same
r e a s o n s
as J o s e p h
i s n o t .
B e c a u s e
t h e s e
a r g u m e n t s were
r a i s e d f o r t h e f i r s t
t i m e on r e h e a r i n g ,
we
51
1070484; 1070487; 1070514
B e c a u s e B r i g h t i s no l o n g e r t h e mayor o f t h e C i t y , t h e
c l a i m s
a g a i n s t h i m i n
h i s o f f i c i a l c a p a c i t y a r e moot.
C. S t r a n g e
The May 2004 c o m p l a i n t
a l l e g e d t h a t t h e d e f e n d a n t s named
i n t h a t c o m p l a i n t
c o n s p i r e d t o p u r c h a s e t h e S h e l t o n
p r o p e r t y
a t a h i g h e r
p r i c e
t h a n
t h a t
p a i d t o W h e e l e r / P h i l l i p s a n d
S o u t h d a l e i n o r d e r t o a v o i d c o m p l y i n g w i t h t h e m o s t - f a v o r e d -
n a t i o n c l a u s e i n
t h e o p t i o n a g r e e m e n t s f o r
t h e o t h e r
p a r c e l s .
S t r a n g e was n o t named as a d e f e n d a n t i n t h a t c o m p l a i n t .
The
c o m p l a i n t
d o e s name a f i c t i t i o u s d e f e n d a n t "A," d e s c r i b e d as
" t h o s e
i n d i v i d u a l s [ w h e t h e r
s i n g u l a r o r p l u r a l ] who made
m i s r e p r e s e n t a t i o n s
o r
p a r t i c i p a t e d
i n
m a k i n g
m i s r e p r e s e n t a t i o n s
t o t h e p l a i n t i f f s
r e l a t i n g t o t h e s a l e o r
p u r c h a s e o f t h e p r o p e r t y
a t i s s u e i n t h i s
c a s e . "
I n t h e
s e c o n d
amended
c o m p l a i n t ,
W h e e l e r / P h i l l i p s
a n d
S o u t h d a l e
s u b s t i t u t e d
S t r a n g e a n d o t h e r s
f o r f i c t i t i o u s
d e f e n d a n t A.
S t r a n g e a r g u e s t h a t he was named as a d e f e n d a n t more t h a n two
y e a r s
a f t e r t h e s t a t u t e o f l i m i t a t i o n s h a d e x p i r e d i n t h i s
c a s e a n d t h a t as t o h i m t h e amendment d o e s n o t r e l a t e b a c k t o
t h e
o r i g i n a l d a t e o f t h e p l e a d i n g .
The t r i a l
c o u r t ' s summary
c a n n o t
c o n s i d e r
them.
D e n n i s v. N o r t h c u t t ,
923 So. 2d 275
( A l a .
2 0 0 5 ) .
52
1070484; 1070487; 1070514
j u d g m e n t i n f a v o r o f t h e p r o j e c t p a r t i c i p a n t s was g r o u n d e d on
t h e e x p i r a t i o n o f t h e s t a t u t e o f
l i m i t a t i o n s .
I n t h e i r p r i n c i p a l b r i e f s , W h e e l e r / P h i l l i p s and
S o u t h d a l e
a r g u e t h a t when t h e s t a t u t e o f l i m i t a t i o n s
as t o f r a u d b e g a n
t o r u n s h o u l d be a q u e s t i o n
f o r t h e j u r y .
We
have so
h e l d .
H o w e v e r ,
W h e e l e r / P h i l l i p s
and
S o u t h d a l e
d i d
n o t
a d d r e s s
S t r a n g e ' s
r e l a t i o n - b a c k
a r g u m e n t i n t h e i r
p r i n c i p a l
b r i e f s .
I n s t e a d ,
t h e y a r g u e f o r t h e
f i r s t
t i m e i n t h e i r
r e p l y
b r i e f s
t h a t t h e i r s u b s t i t u t i o n o f S t r a n g e as a d e f e n d a n t i n F e b r u a r y
2005 was
p r o p e r .
U n l e s s
we
c a n
c o n c l u d e
t h a t
t h e
t r i a l
c o u r t ' s
o r d e r
e n t e r i n g a summary j u d g m e n t on t h e b a s i s o f t h e e x p i r a t i o n o f
t h e s t a t u t e o f l i m i t a t i o n s does n o t i n v o l v e i t s r e j e c t i o n
o f
t h e
a v a i l a b i l i t y
o f
t h e
d o c t r i n e
o f
r e l a t i o n
b a c k
o f
t h e
s e c o n d
amended c o m p l a i n t , we
c a n n o t
r e a c h an
i s s u e
o m i t t e d
f r o m
W h e e l e r / P h i l l i p s ' s
and
S o u t h d a l e ' s
p r i n c i p a l
b r i e f s .
T h i s
C o u r t , i n L l o y d N o l a n d
F o u n d a t i o n ,
I n c . v.
H e a l t h S o u t h
C o r p . , 979 So. 2d 784,
797 n.3
( A l a . 2 0 0 7 ) ,
s t a t e d :
"The
F o u n d a t i o n ' s
o r i g i n a l b r i e f
t o t h i s
C o u r t
a d d r e s s e s
o n l y
t h e
i s s u e s
o f
r e s
j u d i c a t a
and
c o l l a t e r a l e s t o p p e l .
H e a l t h S o u t h ' s
b r i e f
a d d r e s s e s
t h o s e
i s s u e s , as w e l l as t h e f o u r g r o u n d s
a s s e r t e d
i n i t s m o t i o n
t o d i s m i s s .
I n i t s r e p l y b r i e f ,
t h e
F o u n d a t i o n
a d d r e s s e s
t h e
a d d i t i o n a l g r o u n d s
a r g u e d
by
H e a l t h S o u t h .
T h i s
c o m p o r t s
w i t h
t h i s
C o u r t ' s
53
1070484; 1070487; 1070514
i n t e r p r e t a t i o n
o f
t h e
r u l e s
o f
a p p e l l a t e
r e v i e w .
See
P a v i l i o n
Dev.,
LLC
v.
J B J P ' s h i p ,
979
So.
2d
24
( A l a . 2007) (where t h e
t r i a l
c o u r t
s p e c i f i e s
a b a s i s
f o r
i t s
r u l i n g ,
t h e
a p p e l l a n t
d o e s
n o t
w a i v e
a d d i t i o n a l
a r g u m e n t s n o t a d d r e s s e d i n i t s p r i n c i p a l
b r i e f ) . "
( E m p h a s i s added.)
B e c a u s e W h e e l e r / P h i l l i p s
and
S o u t h d a l e
d i d
n o t
a d d r e s s
t h e
d o c t r i n e
o f
r e l a t i o n b a c k i n t h e i r
p r i n c i p a l
b r i e f s ,
and
b e c a u s e we
c a n n o t c o n c l u d e t h a t
t h e
a v a i l a b i l i t y
o f
r e l a t i o n
b a c k
i s an
a d d i t i o n a l
a r g u m e n t
s e p a r a t e
f r o m
t h e
s p e c i f i e d
b a s i s f o r t h e
t r i a l c o u r t ' s
r u l i n g , we must a f f i r m t h e summary
j u d g m e n t as t o S t r a n g e i n h i s i n d i v i d u a l c a p a c i t y on t h e
b a s i s
t h a t
h i s
s u b s t i t u t i o n
as
a d e f e n d a n t
i n t h e
s e c o n d amended
c o m p l a i n t d i d n o t
r e l a t e b a c k t o t h e
o r i g i n a l c o m p l a i n t ,
and,
t h e r e f o r e ,
as
t o
h i m ,
t h e
s t a t u t e
o f
l i m i t a t i o n s
had
r u n .
B e c a u s e we
a f f i r m
t h e summary j u d g m e n t as
t o S t r a n g e on
t h i s
b a s i s , we n e e d n o t a d d r e s s t h e r e m a i n i n g a r g u m e n t s as t o
h i m .
As t o t h e c l a i m s a g a i n s t S t r a n g e i n h i s o f f i c i a l
c a p a c i t y
as t h e mayor o f t h e C i t y ,
t h e c l a i m s s o u n d i n g i n t o r t a r e moot
f o r
t h e
r e a s o n s
s t a t e d
i n P a r t
V.A.
The
b r e a c h - o f - c o n t r a c t
c l a i m s
a r e
n o t moot, and
t h e y r e m a i n p e n d i n g .
To
t h e
e x t e n t
S t r a n g e
i s
a
n e c e s s a r y
p a r t y
i n
h i s
o f f i c i a l
c a p a c i t y
t o
54
1070484; 1070487; 1070514
e f f e c t u a t e
any
j u d g m e n t
i n
f a v o r
o f
S o u t h d a l e
and
W h e e l e r / P h i l l i p s
a g a i n s t
t h e
C i t y ,
he r e m a i n s
i n v o l v e d .
D.
The
C o u n t y and
t h e C o u n t y C o m m i s s i o n
S e c t i o n 1 1 - 1 - 2 , A l a . Code 1975,
p r o v i d e s :
" E v e r y c o u n t y
i s a b o d y c o r p o r a t e ,
w i t h power t o sue
o r be s u e d i n any
c o u r t
o f
r e c o r d . "
A
c o u n t y
i s n o t
immune f r o m
s u i t ,
t h e r e f o r e ,
b e c a u s e
i t i s
a g o v e r n m e n t a l
e n t i t y .
However,
a l l
c l a i m s
a g a i n s t
a c o u n t y , w h e t h e r i n t o r t o r i n c o n t r a c t , must c o m p l y
w i t h t h e r e q u i r e m e n t o f a p r e s e n t m e n t o f an i t e m i z e d ,
v e r i f i e d
c l a i m t o t h e c o u n t y c o m m i s s i o n .
As
t h i s C o u r t s t a t e d i n Cook
v.
S t .
C l a i r C o u n t y , 384
So.
2d
1,
5
( A l a . 1 9 8 0 ) :
" T h e r e
i s no
r e s t r i c t i o n
t o
t h e
t y p e
o f
s u i t
t h a t
may
be
b r o u g h t
a g a i n s t
t h e
c o u n t y - - t o r t
o r
c o n t r a c t .
The
o n l y
r e q u i r e m e n t s
t h a t must be
met
r e g a r d i n g
a s u i t
a g a i n s t
a c o u n t y a r e
s e t o u t
i n
§§
6 - 5 - 2 0 ( a ) , 1 1 - 1 2 - 5 , 1 1 - 1 2 - 6 , and
11-12-8, Code
1975
r e q u i r i n g
p r e s e n t m e n t
o f
an
i t e m i z e d ,
v e r i f i e d
c l a i m , t o t h e c o u n t y c o m m i s s i o n w i t h i n t w e l v e months
o f a c c r u a l , and
a c t e d on w i t h i n n i n e t y d a y s p r i o r
t o
commencement o f t h e
s u i t . "
I t
i s
u n d i s p u t e d
t h a t
n e i t h e r
S o u t h d a l e
n o r
W h e e l e r / P h i l l i p s p r e s e n t e d a c l a i m t o t h e C o u n t y C o m m i s s i o n a t
any
t i m e .
T h i s
f a i l u r e t o
f i l e t h e
s t a t u t o r i l y m a n d a t e d c l a i m
a c t s as a p r o c e d u r a l
b a r
t o a l l c l a i m s
a g a i n s t
t h e C o u n t y
and
t h e C o u n t y C o m m i s s i o n .
The summary j u d g m e n t e n t e r e d
i n
t h e i r
f a v o r
i s due
t o be
a f f i r m e d
on
t h i s
a l t e r n a t i v e
g r o u n d .
55
1 0 7 0 4 8 4 ; 1 0 7 0 4 8 7 ; 1070514
E.
J o s e p h
A l a b a m a l a w i s c l e a r
t h a t a c o u n t y c o m m i s s i o n e r c a n n o t
be
s u e d
i n h i s o r h e r
i n d i v i d u a l
c a p a c i t y .
I n S m i t h e r m a n
v.
M a r s h a l l C o u n t y C o m m i s s i o n ,
746 So. 2d 1001, 1004
( A l a . 1 9 9 9 ) ,
t h e C o u r t
s t a t e d :
"We
f i r s t
c o n s i d e r t h e t r i a l c o u r t ' s r u l i n g
t h a t
t h e c o u n t y c o m m i s s i o n e r s and t h e c o u n t y e n g i n e e r a r e
n o t a m e n a b l e t o s u i t i n t h e i r
i n d i v i d u a l
c a p a c i t i e s .
The
t r i a l
c o u r t
r e l i e d on Cook v. S t . C l a i r
C o u n t y ,
384
So. 2d 1 ( A l a . 1 9 8 0 ) , i n w h i c h
t h i s C o u r t
h e l d :
" ' C o u n t i e s
a r e
a m e n a b l e
t o
s u i t
i n
t o r t
u n d e r
Code
o f
A l a b a m a ,
1975,
§
1 1 - 1 - 2 .
B e c a u s e
c o u n t i e s , as b o d i e s c o r p o r a t e ,
a c t
t h r o u g h t h e i r g o v e r n i n g b o d i e s ,
t h e c o u n t y
[ c o m m i s s i o n s ,
t h e ] c o m m i s s i o n e r s
l i k e w i s e
a r e
s u b j e c t
t o s u i t
i n t o r t , n o t i n
t h e i r
i n d i v i d u a l
c a p a c i t i e s
b u t
o n l y
i n
t h e i r
o f f i c i a l
c a p a c i t i e s . '
"384
So.
2d
a t
7
( o p i n i o n
on
a p p l i c a t i o n
f o r
r e h e a r i n g ) .
I t i s t h e r e f o r e
c l e a r
t h a t t h e summary
j u d g m e n t was
p r o p e r l y e n t e r e d
f o r t h e
c o m m i s s i o n e r s
as t o t h e
c l a i m s
a g a i n s t
them i n t h e i r
i n d i v i d u a l
c a p a c i t i e s . "
( F o o t n o t e
o m i t t e d . )
We
have
n o t
b e e n
a s k e d
t o
o v e r r u l e
S m i t h e r m a n .
B e c a u s e J o s e p h , as a c o u n t y c o m m i s s i o n e r ,
c a n n o t ,
as a m a t t e r o f l a w , be s u e d i n h i s i n d i v i d u a l
c a p a c i t y ,
t h e
summary j u d g m e n t i n h i s f a v o r
i s due
t o be
a f f i r m e d on
t h i s
a l t e r n a t i v e
g r o u n d .
56
1 0 7 0 4 8 4 ; 1 0 7 0 4 8 7 ; 1070514
B e c a u s e we have c o n c l u d e d t h a t t h e C o u n t y and t h e
C o u n t y
C o m m i s s i o n have no
l i a b i l i t y , t h e c l a i m s a g a i n s t J o s e p h i n h i s
o f f i c i a l
c a p a c i t y a r e moot.
F.
T h o r n t o n
The
V o l u n t e e r
S e r v i c e
A c t , § 6-5-336, A l a . Code
1975,
p r o v i d e s ,
i n p e r t i n e n t
p a r t :
o r
o r
" ( d ) Any
v o l u n t e e r
s h a l l be immune f r o m
c i v i l
l i a b i l i t y
i n any
a c t i o n on t h e b a s i s o f any a c t
o m i s s i o n
o f
a
v o l u n t e e r
r e s u l t i n g
i n damage
i n j u r y i f :
" ( 1 ) The v o l u n t e e r
was
a c t i n g i n g o o d
f a i t h
and
w i t h i n
t h e
s c o p e
o f
s u c h
v o l u n t e e r ' s
o f f i c i a l
f u n c t i o n s
and
d u t i e s
f o r
a n o n p r o f i t
o r g a n i z a t i o n ,
a
n o n p r o f i t
c o r p o r a t i o n ,
h o s p i t a l ,
o r
a
g o v e r n m e n t a l
e n t i t y ; and
" ( 2 )
The
damage
o r
i n j u r y
was
n o t
c a u s e d by
w i l l f u l
o r w a n t o n m i s c o n d u c t
by
s u c h
v o l u n t e e r . "
When t h e
l e g i s l a t u r e
p a s s e d
t h e
V o l u n t e e r
S e r v i c e
A c t , i t
d e c l a r e d
i n §
6 - 5 - 3 3 6 ( b ) :
" ( 1 )
The
w i l l i n g n e s s
o f
v o l u n t e e r s
t o
o f f e r
t h e i r
s e r v i c e s has b e e n i n c r e a s i n g l y d e t e r r e d
by a
p e r c e p t i o n
t h a t t h e y p u t p e r s o n a l
a s s e t s
a t r i s k i n
t h e
e v e n t
o f
t o r t
a c t i o n s
s e e k i n g
damages
a r i s i n g
f r o m t h e i r
a c t i v i t i e s as
v o l u n t e e r s ;
" ( 2 ) The c o n t r i b u t i o n s o f p r o g r a m s ,
a c t i v i t i e s ,
and
s e r v i c e s
t o
c o m m u n i t i e s
i s
d i m i n i s h e d
and
w o r t h w h i l e
p r o g r a m s ,
a c t i v i t i e s ,
and
s e r v i c e s
a r e
d e t e r r e d by t h e u n w i l l i n g n e s s o f v o l u n t e e r s
t o s e r v e
e i t h e r as v o l u n t e e r s
o r as
o f f i c e r s ,
d i r e c t o r s ,
o r
57
1070484; 1070487; 1070514
t r u s t e e s
o f
n o n p r o f i t
p u b l i c
and
p r i v a t e
o r g a n i z a t i o n s ;
" ( 3 )
The p r o v i s i o n s o f t h i s s e c t i o n a r e
i n t e n d e d
t o e n c o u r a g e v o l u n t e e r s
t o c o n t r i b u t e t h e i r
s e r v i c e s
f o r
t h e g o o d
o f
t h e i r
c o m m u n i t i e s
and
a t
t h e
same
t i m e
p r o v i d e
a
r e a s o n a b l e
b a s i s
f o r
r e d r e s s
o f
c l a i m s w h i c h may
a r i s e r e l a t i n g t o t h o s e
s e r v i c e s . "
I t
i s
u n d i s p u t e d
t h a t
T h o r n t o n
s e r v e d
as
an
u n p a i d
v o l u n t e e r member o f t h e IDB.
He was
e m p l o y e d f u l l - t i m e i n h i s
own
i n s u r a n c e
b u s i n e s s ,
and
he
s e r v e d
as
t h e c h a i r m a n o f
t h e
IDB
on
a
v o l u n t a r y
p a r t - t i m e
b a s i s .
The
IDB
i s
a
" g o v e r n m e n t a l e n t i t y " as d e f i n e d i n t h e V o l u n t e e r
S e r v i c e
A c t ,
§ 6 - 5 - 3 3 6 ( c ) ( 1 ) .
See
a l s o H a r r i s v. E t h i c s Comm'n, 585
So.
2d
93,
95
( A l a . C i v .
App.
1 9 9 1 ) ,
i n w h i c h
t h e
C o u r t
o f
C i v i l
A p p e a l s q u o t e d w i t h a p p r o v a l
a s t a t e m e n t f r o m a t r i a l
c o u r t ' s
o r d e r
s t a t i n g t h a t
i n d u s t r i a l
d e v e l o p m e n t
b o a r d s
" c l e a r l y
r e f l e c t
a t t r i b u t e s
and
c h a r a c t e r i s t i c s o f
a
g o v e r n m e n t a l
e n t i t y . "
A c c o r d i n g l y ,
T h o r n t o n
i s
a
v o l u n t e e r
u n d e r
t h e
V o l u n t e e r
S e r v i c e
A c t
and
i s e n t i t l e d
t o i m m u n i t y so
l o n g
as
h i s
a c t i o n s
o r i n a c t i o n s were n o t w a n t o n o r
w i l l f u l .
T h o r n t o n
and
t h e
IDB
had
a
l i m i t e d r o l e
i n
a c q u i r i n g
p r o p e r t y
f o r H y u n d a i ' s p l a n t
s i t e .
E v e n t h o u g h T h o r n t o n
was
t h e p e r s o n who
e x e c u t e d on
b e h a l f
o f
t h e
IDB
t h e
o p t i o n s
t o
p u r c h a s e t h e p r o p e r t y owned by S o u t h d a l e and
W h e e l e r / P h i l l i p s ,
58
1070484; 1070487; 1070514
he
n e v e r met
w i t h t h e l a n d o w n e r s n o r was
he
i n v o l v e d i n
t h e
d e c i s i o n s c o n c e r n i n g what p r o p e r t y
s h o u l d be
a c q u i r e d o r
t h e
p r i c e t h a t s h o u l d be p a i d f o r t h e p r o p e r t y .
T h o r n t o n had
no
k n o w l e d g e o f and
was
n o t p r e s e n t
a t t h e m e e t i n g h e l d on
t h e
e v e n i n g
o f M a r c h
28.
He
h a d
no
k n o w l e d g e
o f
and
was
n o t
p r e s e n t
a t t h e m e e t i n g b e t w e e n t h e n Mayor B r i g h t and
S h e l t o n
when
B r i g h t
e x e c u t e d
on
b e h a l f
o f
t h e
C i t y
t h e
o p t i o n
t o
p u r c h a s e S h e l t o n ' s p r o p e r t y .
The
IDB n e v e r h e l d an o p t i o n
on
o r
t i t l e
t o S h e l t o n ' s p r o p e r t y .
T h o r n t o n was
n o t i n v o l v e d i n
t h e a c t u a l p u r c h a s e o f t h e p r o p e r t y .
T h o r n t o n d i d n o t
l e a r n
o f
S h e l t o n ' s
i d e n t i t y ,
t h e
p r i c e p a i d
f o r h e r
p r o p e r t y ,
o r
t h a t
H y u n d a i
had
a c q u i r e d
t h e
S h e l t o n
p r o p e r t y
u n t i l
many
months
a f t e r
t h e
f a c t ,
l o n g
a f t e r
S o u t h d a l e
and
W h e e l e r / P h i l l i p s
had
s o l d t h e i r
p r o p e r t y .
We
c o n c l u d e
t h a t
S o u t h d a l e
and W h e e l e r / P h i l l i p s have n o t p r e s e n t e d any
e v i d e n c e
i n d i c a t i n g
t h a t
any
a c t i o n s
t a k e n
by
T h o r n t o n ,
e i t h e r
i n d i v i d u a l l y
o r i n h i s c a p a c i t y as
t h e c h a i r m a n o f t h e
IDB,
were w a n t o n o r
w i l l f u l .
T h e r e f o r e ,
T h o r n t o n i s e n t i t l e d
t o
i m m u n i t y
p u r s u a n t
t o
t h e
V o l u n t e e r
S e r v i c e
A c t ,
and
t h e
summary j u d g m e n t i n h i s f a v o r i s due
t o be
a f f i r m e d on
t h i s
a l t e r n a t i v e
g r o u n d .
G.
The
IDB
59
1070484; 1070487; 1070514
B e c a u s e we have d e t e r m i n e d t h a t T h o r n t o n i s e n t i t l e d t o
i m m u n i t y
u n d e r
t h e V o l u n t e e r
S e r v i c e
A c t , t h e IDB
i s
a l s o
e n t i t l e d t o i m m u n i t y .
I n H o l l i s v. C i t y o f B r i g h t o n ,
885
So.
2d 135, 141-42
( A l a . 2 0 0 4 ) , t h e p l a i n t i f f s
s u e d t h e C i t y o f
B r i g h t o n ,
a l l e g i n g t h a t t h e
c i t y h a d
f a i l e d
t o e x t i n g u i s h a
f i r e
a t
t h e i r
h o u s e
and
h a d
p r e v e n t e d t h e
p l a i n t i f f s
f r o m
t r y i n g t o e x t i n g u i s h i t . T h i s C o u r t
h e l d :
"The
v i c a r i o u s
l i a b i l i t y
o f a p u t a t i v e
m a s t e r
u n d e r t h e r u l e o f r e s p o n d e a t s u p e r i o r d e p e n d s upon
t h e
l i a b i l i t y
o f t h e p u t a t i v e
s e r v a n t .
See
L a r r y
T e r r y
C o n t r a c t o r s ,
I n c . v.
B o g l e ,
404
So.
2d
613,
614
( A l a . 1981)
('"[W]hen
[a]
p r i n c i p a l
and
h i s
a g e n t
a r e
s u e d
i n
[a]
j o i n t
a c t i o n
i n
t o r t
f o r
m i s f e a s a n c e o r m a l f e a s a n c e o f t h e s e r v a n t ,
and h i s
l i a b i l i t y
f o r t h e c o n d u c t o f s a i d s e r v a n t
i s u n d e r
t h e
r u l e o f r e s p o n d e a t s u p e r i o r , a v e r d i c t i n f a v o r
o f
t h e
s e r v a n t
e n t i t l e s
t h e
m a s t e r
t o
h a v e
t h e
v e r d i c t
a g a i n s t
h i m
s e t
a s i d e . " ' )
( q u o t i n g
L o u i s v i l l e
& N.R.R. v. Maddox, 236 A l a . 594,
600 ,
183
So.
849,
853
(1
938 ) ) ,
and
Gore
v.
C i t y
o f
H o o v e r ,
559 So. 2d 163, 165
( A l a . 1 9 9 0 ) ,
o v e r r u l e d
on
o t h e r
g r o u n d s ,
F r a n k l i n v.
C i t y o f H u n t s v i l l e ,
670
So.
2d
84 8
( A l a . 1995)
( h o l d i n g
t h a t
a
c i t y
c o u l d n o t be h e l d v i c a r i o u s l y l i a b l e f o r t h e a c t o f
a m a g i s t r a t e
who was immune f r o m
l i a b i l i t y ) .
Thus,
i f a p u t a t i v e s e r v a n t
i s n o t
l i a b l e ,
e i t h e r b e c a u s e
he i s i n n o c e n t
o r b e c a u s e he i s immune, no
l i a b i l i t y
e x i s t s t o be v i s i t e d upon t h e p u t a t i v e m a s t e r
u n d e r
t h e
r u l e o f r e s p o n d e a t s u p e r i o r . I d .
f l
"As
d i s c u s s e d
a b o v e ,
t h e
f i r e f i g h t e r s ,
t h e
p u t a t i v e
s e r v a n t s
i n t h e c a s e now
b e f o r e
u s , were
v o l u n t e e r s
who
d i d n o t
r e c e i v e
c o m p e n s a t i o n
f o r
t h e i r
s e r v i c e
as
v o l u n t e e r
f i r e f i g h t e r s .
60
1070484; 1070487; 1070514
C o n s e q u e n t l y ,
t h e y were immune f r o m
l i a b i l i t y
f o r
n e g l i g e n c e
u n d e r t h e V o l u n t e e r
S e r v i c e A c t .
B e c a u s e
t h e
f i r e f i g h t e r s
were
immune
f r o m
l i a b i l i t y
f o r
n e g l i g e n c e
u n d e r
t h e
V o l u n t e e r
S e r v i c e
A c t ,
no
l i a b i l i t y
f o r
n e g l i g e n c e
c o u l d
b e f a l l
them
t o
be
v i s i t e d upon
t h e
C i t y
[ o f B r i g h t o n ] ,
t h e
p u t a t i v e
m a s t e r i n t h e c a s e now
b e f o r e
u s . "
The
IDB c a n n o t be h e l d v i c a r i o u s l y l i a b l e f o r t h e a c t s o f i t s
c h a i r m a n b e c a u s e T h o r n t o n was immune f r o m
l i a b i l i t y u n d e r
t h e
V o l u n t e e r
S e r v i c e A c t .
The summary j u d g m e n t e n t e r e d
i n f a v o r
o f t h e
IDB
i s due
t o be
a f f i r m e d on
t h i s
a l t e r n a t i v e g r o u n d .
H.
The
A I F A
The
A I F A
i s
a
p u b l i c
c o r p o r a t i o n
and
p u b l i c
i n s t r u m e n t a l i t y
o f
t h e
S t a t e .
See
§ 41-10-540 ,
A l a .
Code
1975.
I t was
c r e a t e d
by
t h e
l e g i s l a t u r e
t o f u n d
i n c e n t i v e s
and c o m m i t m e n t s t o i n d u s t r i e s t h a t a g r e e t o l o c a t e i n A l a b a m a .
By
l a w ,
t h e
g o v e r n o r a c t s
as
t h e
p r e s i d e n t
o f t h e A I F A ,
t h e
s t a t e
t r e a s u r e r
as
i t s
v i c e
p r e s i d e n t ,
and
t h e
f i n a n c e
d i r e c t o r as i t s s e c r e t a r y .
§ 4 1 - 1 0 - 5 4 5 , A l a . Code 1975.
The
A I F A a r g u e s t h a t i t i s e n t i t l e d t o t h e i m m u n i t y p r o t e c t i o n s
o f
A r t i c l e I , § 14, A l a b a m a C o n s t i t u t i o n o f 1901, when i t a c t s
as
an
arm
o f
t h e
S t a t e .
S o u t h d a l e
and
W h e e l e r / P h i l l i p s
a r g u e
t h a t
t h e
A I F A
i s
n o t
e n t i t l e d
t o
i m m u n i t y
b e c a u s e
t h e
l e g i s l a t u r e
has
g i v e n
i t t h e
a u t h o r i t y
t o
" i n s t i t u t e
and
d e f e n d
l e g a l p r o c e e d i n g s . "
§ 4 1 - 1 0 - 5 4 6 ( 2 ) .
61
1 0 7 0 4 8 4 ; 1 0 7 0 4 8 7 ; 1070514
N e v e r t h e l e s s ,
i f an a c t i o n
a g a i n s t
a b o d y
s u c h as t h e
A I F A i s i n a c t u a l i t y an a c t i o n a g a i n s t t h e S t a t e w i t h i n § 14
o f t h e A l a b a m a C o n s t i t u t i o n , t h e n t h e A I F A may be e n t i t l e d t o
i m m u n i t y .
I n A r m o r y C o m m i s s i o n o f A l a b a m a v. S t a u d t , 388 So.
2d
991
( A l a . 1 9 8 0 ) ,
t h i s
C o u r t
h e l d
t h a t
" [ w ] h e t h e r
a
g o v e r n m e n t a l b o d y i s immune f r o m s u i t c a n n o t t u r n on l a b e l s
p l a c e d
on
t h e
b o d y
by
t h e
l e g i s l a t u r e "
and
t h a t
t h e
" l e g i s l a t u r e
may
n o t d e n y
i m m u n i t y
f r o m
s u i t
when
t h a t
i m m u n i t y i s c o n s t i t u t i o n a l l y g r a n t e d . "
388 So. 2d a t 992.
The C o u r t f u r t h e r
s t a t e d :
"Whether
a
l a w s u i t
a g a i n s t
a
b o d y
c r e a t e d
by
l e g i s l a t i v e
e n a c t m e n t i s a s u i t
a g a i n s t
t h e s t a t e
d e p e n d s on t h e c h a r a c t e r o f power
d e l e g a t e d
t o t h e
b o d y , t h e r e l a t i o n o f t h e b o d y t o t h e s t a t e , and t h e
n a t u r e o f t h e f u n c t i o n p e r f o r m e d by t h e b o d y . A l l
f a c t o r s
i n t h e r e l a t i o n s h i p must be e x a m i n e d t o
d e t e r m i n e w h e t h e r t h e s u i t i s a g a i n s t an arm o f t h e
s t a t e o r m e r e l y
a g a i n s t
a f r a n c h i s e e
l i c e n s e d f o r
some b e n e f i c i a l p u r p o s e .
S t a t e Docks C o m m i s s i o n v .
B a r n e s ,
225 A l a . 403, 406-07,
143 So. 581
, 584
( 1 9 3 2 ) . "
388 So. 2d a t 993.
The A I F A a r g u e s t h a t i t
meets t h e t h r e e
S t a u d t
f a c t o r s t o e n t i t l e i t t o i m m u n i t y as an arm o f t h e
S t a t e .
As t o t h e f i r s t
f a c t o r , t h e A I F A c o n t e n d s t h a t i t i s
g r a n t e d t h e a u t h o r i t y t o f i n a n c e t h e S t a t e ' s
o b l i g a t i o n s t o
c o m p a n i e s t h a t
b r i n g n e e d e d i n d u s t r y t o A l a b a m a .
As t o t h e
s e c o n d
f a c t o r ,
t h e A I F A
c o n t e n d s
t h a t
i t i s so
c l o s e l y
62
1 0 7 0 4 8 4 ; 1 0 7 0 4 8 7 ; 1070514
i n t e r t w i n e d
w i t h
t h e S t a t e
t h a t
i t i s e n t i t l e d
t o t h e
i m m u n i t i e s a f f o r d e d a g e n c i e s and arms o f t h e S t a t e .
As t o
t h e
t h i r d
f a c t o r , t h e A I F A s t a t e s
t h a t i t
d o e s n o t n e g o t i a t e o r
make c o m m i t m e n t s on b e h a l f o f t h e S t a t e , b u t i t
i s a u t h o r i z e d
t o
f u n d
e x i s t i n g
c o m m i t m e n t s
t h r o u g h
t h e u s e
o f
A I F A
o b l i g a t i o n s ,
p r i m a r i l y b o n d s .
I n S t a l l i n g s & S o n s , I n c .
v. A l a b a m a B u i l d i n g
R e n o v a t i o n
F i n a n c e A u t h o r i t y , 689 So. 2d 790, 792 ( A l a .
1 9 9 6 ) , t h e C o u r t
s t a t e d
t h a t
t h e
S t a u d t
t e s t
" e x a m i n e s
t h e
c o m p l e t e
r e l a t i o n s h i p b e t w e e n t h e s t a t e and t h e e n t i t y s e e k i n g i m m u n i t y
f r o m
s u i t
"
The C o u r t e x a m i n e d t h e p o w e r s d e l e g a t e d t o
t h e
A l a b a m a
B u i l d i n g
R e n o v a t i o n
F i n a n c e
A u t h o r i t y
by t h e
l e g i s l a t u r e , t h e r e l a t i o n s h i p b e t w e e n t h e A u t h o r i t y and t h e
S t a t e ,
a n d t h e n a t u r e
o f t h e f u n c t i o n
p e r f o r m e d
by t h e
A u t h o r i t y .
A f t e r e x a m i n i n g t h e t h r e e f a c t o r s , t h e C o u r t i n
S t a l l i n g s
c o n c l u d e d
t h a t t h e A u t h o r i t y was n o t immune
f r o m
s u i t ,
d i s t i n g u i s h i n g t h e f a c t s i n t h a t c a s e f r o m t h o s e
f o u n d
i n S t a t e Docks C o m m i s s i o n v . B a r n e s , 225 A l a . 4 0 3 , 143 So. 581
( 1 9 3 2 ) , a c a s e
r e l i e d on by t h e C o u r t i n S t a u d t .
"The
f a c t s
i n
t h i s
c a s e
a r e
c l e a r l y
d i s t i n g u i s h a b l e
f r o m
t h o s e
f o u n d
i n S t a t e
Docks
C o m m i s s i o n v . B a r n e s , a c a s e r e l i e d on by t h i s
C o u r t
i n S t a u d t , i n w h i c h
t h i s C o u r t h e l d t h a t t h e S t a t e
Docks C o m m i s s i o n was an arm o f t h e s t a t e and t h u s
63
1 0 7 0 4 8 4 ; 1 0 7 0 4 8 7 ; 1070514
immune
f r o m
s u i t
f o r
t h e
f o l l o w i n g
r e a s o n s :
t h e
s t a t e owned t h e
d o c k s
f a c i l i t i e s
i n i t s own
name;
t h e C o m m i s s i o n o p e r a t e d t h e d o c k s
f a c i l i t i e s
as
an
a g e n t o f t h e s t a t e and
n o t as a s e p a r a t e
e n t i t y ;
t h e
f u n d s
g e n e r a t e d
by
t h e
s t a t e
d o c k s
f a c i l i t i e s
b e l o n g e d t o t h e
s t a t e , and
i n t h e
l a w s u i t a t
i s s u e
i n
t h a t c a s e , t h o s e f u n d s w o u l d have b e e n
s u b j e c t e d
t o
l i a b i l i t y , b e c a u s e ' a
l a w s u i t d i r e c t l y a f f e c t i n g
a s t a t e c o n t r a c t o r p r o p e r t y
r i g h t
i s t a n t a m o u n t
t o
a
s u i t
a g a i n s t
t h e
s t a t e . '
S t a u d t ,
388
So.
2d
a t
993."
S t a l l i n g s ,
689
So.
2d a t
793.
A r t i c l e
I , § 14,
o f t h e
C o n s t i t u t i o n o f
1901,
p r o v i d e s :
" [ T ] h e S t a t e o f A l a b a m a s h a l l n e v e r be made a d e f e n d a n t i n
any
c o u r t
o f l a w
o r e q u i t y . "
T h i s C o u r t has
h e l d t h a t
" ' t h e
use
o f t h e w o r d " S t a t e " i n S e c t i o n 14 was
i n t e n d e d
t o p r o t e c t f r o m
s u i t o n l y i m m e d i a t e and
s t r i c t l y g o v e r n m e n t a l a g e n c i e s o f
t h e
S t a t e . ' "
T a l l a s e e h a t c h i e C r e e k W a t e r s h e d C o n s e r v a n c y D i s t . v.
A l l r e d ,
620
So.
2d
628,
631
( A l a . 1993)
( q u o t i n g Thomas
v.
A l a b a m a Mun.
E l e c . A u t h . ,
432
So.
2d
470,
480
( A l a .
1 9 8 3 ) ) .
A f t e r
r e v i e w i n g
t h e
c h a r a c t e r
o f
t h e power d e l e g a t e d
t o
t h e
A I F A , t h e A I F A ' s r e l a t i o n s h i p t o t h e S t a t e , and
t h e n a t u r e
o f
t h e
f u n c t i o n
i t p e r f o r m s ,
we
c o n c l u d e
t h a t
i t i s
a
S t a t e
a g e n c y f o r p u r p o s e s o f S t a t e i m m u n i t y .
T h e r e f o r e ,
t h e summary
j u d g m e n t e n t e r e d
i n f a v o r o f t h e A I F A i s due
t o be a f f i r m e d
on
t h i s
a l t e r n a t i v e g r o u n d .
I . Then G o v e r n o r
S i e g e l m a n
64
1070484; 1070487; 1070514
A r t i c l e V, § 112, A l a b a m a C o n s t i t u t i o n o f 1 9 0 1 , l i s t s t h e
o f f i c e r s e m b r a c e d w i t h i n t h e e x e c u t i v e
d e p a r t m e n t :
"The
e x e c u t i v e
d e p a r t m e n t
s h a l l
c o n s i s t o f a
g o v e r n o r ,
l i e u t e n a n t
g o v e r n o r ,
a t t o r n e y - g e n e r a l ,
s t a t e a u d i t o r , s e c r e t a r y o f s t a t e ,
s t a t e t r e a s u r e r ,
s u p e r i n t e n d e n t
o f
e d u c a t i o n ,
c o m m i s s i o n e r
o f
a g r i c u l t u r e and i n d u s t r i e s ,
and a s h e r i f f f o r e a c h
c o u n t y . "
T h i s C o u r t r e c e n t l y a d d r e s s e d t h e i n d i v i d u a l
l i a b i l i t y o f
a s h e r i f f i n Ex p a r t e D a v i s , 9 So. 3d 480, 483 ( A l a . 2 0 0 8 ) :
" A r t i c l e I , § 14, A l a b a m a C o n s t i t u t i o n o f 1 9 0 1 ,
s t a t e s s i m p l y :
' [ T ] h e
S t a t e o f A l a b a m a s h a l l
n e v e r
be made a d e f e n d a n t i n any c o u r t o f l a w o r e q u i t y . '
A l t h o u g h
c o u n t i e s
do n o t n e c e s s a r i l y p o s s e s s t h e
same
s o v e r e i g n
i m m u n i t y
as do
s t a t e s
and
s t a t e
a g e n c i e s ,
c o u n t y s h e r i f f s a r e e x e c u t i v e
o f f i c e r s o f
t h e
S t a t e o f A l a b a m a and a r e t h e r e f o r e immune
f r o m
l i a b i l i t y f o r a c t i o n s t a k e n i n e x e c u t i n g t h e d u t i e s
o f t h e i r
o f f i c e s .
B o s h e l l v. W a l k e r C o u n t y
S h e r i f f ,
598
So. 2d 843, 844 ( A l a .
1
9 9 2 ) .
T h i s
C o u r t h a s
a l s o
r e c o g n i z e d
t h a t a ' d e p u t y
s h e r i f f i s a f f o r d e d
t h e same i m m u n i t y f r o m
s u i t as a s h e r i f f i n r e g a r d
t o
c l a i m s
f o r m o n e t a r y
damages
s t e m m i n g
f r o m
a c t i v i t i e s p e r f o r m e d w h i l e w o r k i n g
i n t h e l i n e and
s c o p e o f h i s o r h e r e m p l o y m e n t . '
Ex p a r t e
P u r v i s ,
689 So. 2d 794, 796 ( A l a . 1 9 9 6 ) . "
( E m p h a s i s added.)
I f a
s h e r i f f , b y r e a s o n
o f h i s o r h e r
s t a t u s
as a
c o n s t i t u t i o n a l
o f f i c e r ,
e n j o y s
i m m u n i t y
f r o m
l i a b i l i t y
f o r m o n e t a r y
damages
s t e m m i n g
f r o m
a c t i v i t i e s
p e r f o r m e d w h i l e e x e c u t i n g t h e d u t i e s o f t h e o f f i c e ,
t h e n ,
a
f o r t i o r a r i , a g o v e r n o r i s e n t i t l e d t o t h e same i m m u n i t y .
The
m a t t e r s made t h e b a s i s o f t h e c l a i m s
a g a i n s t
t h e n
G o v e r n o r
65
1070484; 1070487; 1070514
S i e g e l m a n , i n h i s c a p a c i t y as t h e ex
o f f i c i o p r e s i d e n t o f
t h e
A I F A
and
i n c a u s i n g
t h e
S t a t e
t o
f u n d
t h e
p u r c h a s e
o f
t h e
S h e l t o n p r o p e r t y f o r H y u n d a i , s t e m f r o m a c t i o n s t a k e n w h i l e
he
was
e x e c u t i n g
t h e d u t i e s o f h i s o f f i c e .
A l a b a m a c o u r t s h a v e
" c o n s i s t e n t l y
h e l d
t h a t
a
c l a i m
f o r m o n e t a r y damages made
a g a i n s t a c o n s t i t u t i o n a l
o f f i c e r
i n t h e
o f f i c e r ' s
i n d i v i d u a l
c a p a c i t y
i s b a r r e d
by
S t a t e i m m u n i t y w h e n e v e r t h e
a c t s
t h a t
a r e t h e b a s i s o f t h e a l l e g e d
l i a b i l i t y were p e r f o r m e d w i t h i n
t h e c o u r s e
and
s c o p e o f t h e
o f f i c e r ' s e m p l o y m e n t . "
Ex
p a r t e
D a v i s ,
930
So. 2d 497, 500-01 ( A l a . 2 0 0 5 ) .
C o n s e q u e n t l y , t h e n
G o v e r n o r S i e g e l m a n i s e n t i t l e d ,
on t h e
f a c t s h e r e
p r e s e n t e d ,
t o
S t a t e
i m m u n i t y
i n
h i s
i n d i v i d u a l
c a p a c i t y
and
i n
h i s
c a p a c i t y
as
t h e
f o r m e r p r e s i d e n t
o f
t h e A I F A .
The
summary
j u d g m e n t
i n
h i s
f a v o r
i s
due
t o
be
a f f i r m e d
on
t h i s
a l t e r n a t i v e
g r o u n d .
J . Then F i n a n c e
D i r e c t o r M a b r y
Then
F i n a n c e
D i r e c t o r M a b r y
f i r s t
a r g u e s
t h a t
he
i s
e n t i t l e d t o S t a t e i m m u n i t y b e c a u s e , he s a y s , he was
a c t i n g as
t h e g o v e r n o r ' s a l t e r ego
o r d e p u t y i n r e v i e w i n g and
p r e p a r i n g
t h e
i n c e n t i v e p a c k a g e p r o v i d e d
t o H y u n d a i .
T h e r e f o r e ,
M a b r y
a r g u e s , he s h o u l d be g r a n t e d t h e same i m m u n i t y t h e g o v e r n o r o r
a
s h e r i f f
w o u l d
e n j o y
u n d e r
s i m i l a r
c i r c u m s t a n c e s .
We
66
1070484; 1070487; 1070514
d i s a g r e e .
A d e p u t y s h e r i f f e n j o y s
t h e i m m u n i t y o f t h e
s h e r i f f
b e c a u s e o f l o n g - s t a n d i n g
p r e c e d e n t t r e a t i n g t h e d e p u t y as
an
a l t e r ego
o f t h e
s h e r i f f .
"We
must r e a c h
t h e same c o n c l u s i o n w i t h
r e g a r d
t o
D e p u t i e s
B r a n d o n
and
F i n l e y .
I n
M o s e l y
v.
K e n n e d y ,
245
A l a .
448 ,
450,
17
So.
2d
536,
537
( 1 9 4 4 ) ,
t h i s C o u r t s t a t e d ,
' I n g e n e r a l ,
t h e a c t s
o f
t h e d e p u t y s h e r i f f a r e t h e a c t s o f t h e
s h e r i f f .
The
d e p u t y
s h e r i f f
i s t h e
a l t e r
ego
o f
t h e
s h e r i f f . '
( C i t a t i o n s o m i t t e d . )
I n d e a l i n g w i t h t h e same i s s u e
t h a t i s p r e s e n t
h e r e ,
t h e f e d e r a l a p p e l l a t e c o u r t i n
C a r r
v.
C i t y
o f
F l o r e n c e ,
A l a b a m a ,
916
F.2d
1521,
1526
( 1 1 t h
C i r . 1 9 9 0 ) ,
a f f i r m e d summary
j u d g m e n t s
f o r t h e L a u d e r d a l e
C o u n t y s h e r i f f
and
h i s
d e p u t i e s ,
s t a t i n g :
" ' [ U n d e r A l a b a m a l a w ,
a] d e p u t y i s
l e g a l l y
an
e x t e n s i o n
o f
t h e
s h e r i f f .
I f
t h e
d e p u t y ' s a c t s a r e g e n e r a l l y c o n s i d e r e d
t h e
a c t s
o f
t h e
s h e r i f f ,
i t i s
l o g i c a l
t h a t
t h o s e
a c t s
s h o u l d
a l s o e n j o y
t h e
i m m u n i t y
c o v e r i n g
t h e
s h e r i f f ' s
own
a c t s . ' "
H e r e f o r d v. J e f f e r s o n C o u n t y , 586
So. 2d 209,
210
( A l a . 1 9 9 1 ) .
The
n o t i o n
t h a t
S t a t e
o f f i c i a l s
s e r v i n g
i n
t h e
e x e c u t i v e
b r a n c h
a r e
" d e p u t y
g o v e r n o r s "
has
no
s u c h
p r e c e d e n t i a l
f o o t i n g ,
and
we
d e c l i n e
t o
c r e a t e
i t i n
t h i s
p r o c e e d i n g .
C a b i n e t
o f f i c i a l s
a r e
n o t
c o n s t i t u t i o n a l
o f f i c e r s ,
and,
t h e r e f o r e ,
t h e y
a r e
n o t
e n t i t l e d
t o t h e
S t a t e i m m u n i t y o f
a
c o n s t i t u t i o n a l
o f f i c e r .
See
t h e d i s c u s s i o n o f t h e n G o v e r n o r
S i e g e l m a n ' s i m m u n i t y i n P a r t V . I .
h e r e i n .
67
1070484; 1070487; 1070514
M a b r y
a l s o
a r g u e s
t h a t
he
i s
e n t i t l e d
t o
S t a t e - a g e n t
i m m u n i t y b e c a u s e , he
s a y s ,
he n e v e r e x c e e d e d t h e s c o p e o f
h i s
d u t i e s .
M a b r y t e s t i f i e d
t h a t S t r a n g e d i d n o t s p e a k w i t h
h i m
o r
w i t h
t h e n G o v e r n o r S i e g e l m a n
on
t h e
e v e n i n g
o f M a r c h
28
a b o u t H y u n d a i ' s r e q u e s t ,
t h e m e e t i n g S t r a n g e c o n v e n e d , o r
h i s
t a l k s w i t h
CSX
r e p r e s e n t a t i v e s .
Then G o v e r n o r S i e g e l m a n
and
M a b r y were
a p p r i s e d
o f
t h e
c o n v e r s a t i o n s
b e t w e e n
S t r a n g e ,
H y u n d a i ,
and
CSX
on
t h e
f o l l o w i n g day,
M a r c h 29,
a f t e r
t h e n
Mayor B r i g h t had
o b t a i n e d
t h e o p t i o n
on t h e S h e l t o n
p r o p e r t y .
M a b r y
and
S i e g e l m a n
s t a t e
t h a t
t h e y
d i d
n o t
see
e i t h e r
t h e
l e t t e r f r o m S t r a n g e t o H e m p h i l l o r t h e e - m a i l f r o m H e m p h i l l t o
G e o r g e .
M a b r y ' s i n v o l v e m e n t t h e r e a f t e r was
l i m i t e d t o m a k i n g
t h e
a p p r o p r i a t e
f u n d s
a v a i l a b l e
t o
p u r c h a s e
t h e
S h e l t o n
p r o p e r t y
on b e h a l f
o f t h e
S t a t e .
S o u t h d a l e
and
W h e e l e r / P h i l l i p s
p r e s e n t e d
no
e v i d e n c e
i n d i c a t i n g t h a t M a b r y a c t e d o u t s i d e h i s a u t h o r i t y as
s e c r e t a r y
o f t h e A I F A ; t h e r e f o r e , he i s e n t i t l e d t o S t a t e - a g e n t i m m u n i t y
i n h i s i n d i v i d u a l c a p a c i t y .
The summary j u d g m e n t i n h i s
f a v o r
i s due
t o be
a f f i r m e d
on
t h i s
a l t e r n a t i v e g r o u n d .
B e c a u s e we have c o n c l u d e d t h a t t h e A I F A has
no
l i a b i l i t y ,
t h e
c l a i m s
a g a i n s t
M a b r y
i n
h i s
c a p a c i t y
as
t h e
f o r m e r
s e c r e t a r y
o f t h e A I F A a r e moot.
68
1070484; 1070487; 1070514
K.
CSX
CSX,
a r g u i n g
c o l l e c t i v e l y f o r t h e two
c o r p o r a t e
a p p e l l e e s
and two
i n d i v i d u a l a p p e l l e e s , a r g u e s t h a t t h e summary j u d g m e n t
i n i t s f a v o r was p r o p e r b e c a u s e , i t s a y s , t h e amendment t o
t h e
o p t i o n
a g r e e m e n t s
f i x e d
t h e
p r i c e
S o u t h d a l e
and
W h e e l e r / P h i l l i p s were t o be p a i d f o r t h e i r
l a n d and
b e c a u s e ,
i t
s a y s ,
t h e i r
f r a u d
c l a i m s
a r e
b a r r e d
by
t h e
s t a t u t e
o f
l i m i t a t i o n s , a r g u m e n t s we h a v e r e j e c t e d .
CSX makes two
b r i e f
a r g u m e n t s
s e t t i n g
f o r t h
a l t e r n a t i v e b a s e s
upon
w h i c h
t h e
summary j u d g m e n t i n i t s f a v o r c o u l d be p r o p e r .
I t a r g u e s t h a t
t h e
summary j u d g m e n t
s h o u l d
be
a f f i r m e d
b e c a u s e ,
i t
s a y s ,
t h e r e were no u n i q u e t o r t damages p r e s e n t e d
h e r e and
b e c a u s e ,
i t s a y s , CSX
had no d u t y t o S o u t h d a l e and W h e e l e r / P h i l l i p s
and
made no r e p r e s e n t a t i o n s
t o them.
The
two
CSX
v i c e
p r e s i d e n t s
w i t h whom S t r a n g e s p o k e t o t r y t o a r r a n g e t h e p u r c h a s e o f
t h e
S h e l t o n
p r o p e r t y
were
c l o s e l y
i n v o l v e d
i n
t h e
e f f o r t
t o
p u r c h a s e t h a t p r o p e r t y
i n a manner t h a t w o u l d n o t
t r i g g e r t h e
m o s t - f a v o r e d - n a t i o n
c l a u s e
i n
t h e
o t h e r
o p t i o n
a g r e e m e n t s .
H e m p h i l l
e s p e c i a l l y was
a c u t e l y
aware
o f
t h e
r e a s o n s
f o r
h a v i n g
CSX
p u r c h a s e t h e
S h e l t o n
p r o p e r t y .
He
was
t h e
a u t h o r
o f t h e e - m a i l
d e s c r i b i n g t h e p r o p o s e d CSX p u r c h a s e as a " p l o y "
t o
a v o i d
t h e
e f f e c t o f
t h e
m o s t - f a v o r e d - n a t i o n
c l a u s e .
He
69
1070484; 1070487; 1070514
knew t h a t
CSX
w o u l d
be
r e i m b u r s e d
i n some
f a s h i o n
f o r
t h e
p u r c h a s e p r i c e
o f
t h e
p r o p e r t y .
H e m p h i l l
t e s t i f i e d
t h a t
he
went a l o n g w i t h t h e p l a n p r o p o s e d by S t r a n g e b e c a u s e he w a n t e d
CSX
t o h a v e
t h e
r a i l w a y
b u s i n e s s
w i t h
H y u n d a i .
U n d e r
t h e
f a c t s p r e s e n t e d ,
we c a n n o t c o n c l u d e t h a t t h e summary j u d g m e n t
as t o CSX
T r a n s p o r t a t i o n ,
I n c . ,
can
be
a f f i r m e d on
t h e
b a s i s
t h a t
t h e
e v i d e n c e
o f CSX's i n v o l v e m e n t
was
i n s u f f i c i e n t
t o
c r e a t e a g e n u i n e i s s u e o f m a t e r i a l f a c t o r on any
a l t e r n a t i v e
g r o u n d .
As
t o
CSX
R e a l
P r o p e r t y ,
I n c . ,
E v a n s ,
and
H e m p h i l l ,
h o w e v e r ,
CSX
a d o p t e d
i n
i t s a p p e l l e e ' s
b r i e f
t h e
a r g u m e n t s
made by S t r a n g e i n h i s a p p e l l e e ' s
b r i e f , w h i c h w o u l d
i n c l u d e
t h e
a r g u m e n t
t h a t
W h e e l e r / P h i l l i p s
and
S o u t h d a l e ' s
s u b s t i t u t i o n
o f
CSX
R e a l
P r o p e r t y ,
E v a n s ,
and
H e m p h i l l
f o r
f i c t i t i o u s d e f e n d a n t A i n t h e i r s e c o n d amended c o m p l a i n t
d i d
n o t
r e l a t e b a c k t o t h e
c l a i m s
i n t h e
o r i g i n a l
c o m p l a i n t
and
t h e r e f o r e came t o o
l a t e .
F o r t h e r e a s o n s s t a t e d i n P a r t
V.C.,
we
h o l d t h a t t h e
d o c t r i n e o f
r e l a t i o n b a c k b a r r e d
t h e
c l a i m s
a g a i n s t CSX
R e a l P r o p e r t y , E v a n s , and H e m p h i l l ;
t h e r e f o r e ,
t h e
summary j u d g m e n t as t o them i s due
t o be
a f f i r m e d .
L.
H y u n d a i
70
1070484;
1070487;
1070514
I n McLemore, t h e R u s s e l l s a n d t h e McLemore g r o u p a r g u e d
t h a t
t h e summary
j u d g m e n t
e n t e r e d
i n H y u n d a i ' s
f a v o r
was
i m p r o p e r b e c a u s e , t h e y a r g u e d , t h e IDB, t h e C i t y , t h e C o u n t y ,
and t h e S t a t e
were
a c t i n g as H y u n d a i ' s
a g e n t s a n d b e c a u s e
H y u n d a i was e n g a g e d i n a j o i n t v e n t u r e w i t h t h o s e
e n t i t i e s .
T h i s C o u r t r e j e c t e d b o t h o f t h o s e a r g u m e n t s a n d a f f i r m e d t h e
summary j u d g m e n t i n f a v o r o f H y u n d a i .
B e c a u s e t h o s e a r g u m e n t s
a r e n o t
made by S o u t h d a l e a n d W h e e l e r / P h i l l i p s , McLemore does
n o t
p r o v i d e
a u t h o r i t y u p o n w h i c h we c a n a f f i r m t h e summary
j u d g m e n t i n f a v o r o f H y u n d a i i n t h i s c a s e .
However, McLemore
does
n o t e
t h e p a u c i t y
o f
e v i d e n c e
p r e s e n t e d c o n c e r n i n g
H y u n d a i ' s i n v o l v e m e n t i n t h e m a t t e r s made t h e b a s i s o f t h i s
a c t i o n .
I n r e j e c t i n g t h e a g e n c y a r g u m e n t , we s t a t e d :
" N o t h i n g b e f o r e us c r e a t e s an i n f e r e n c e t h a t H y u n d a i
p a r t i c i p a t e d
i n i d e n t i f y i n g
t h e l o c a t i o n o f t h e
p r o p e r t y p r o p o s e d f o r
t h e p r o j e c t
s i t e ,
t h a t i t was
i n v o l v e d i n d r a f t i n g t h e o p t i o n a g r e e m e n t s ,
t h a t i t
met w i t h t h e p r o p e r t y o w n e r s , o r t h a t i t
was a p a r t y
t o
t h e
o p t i o n
a g r e e m e n t s .
...
The
e v i d e n c e
i n d i c a t e s
t h a t
H y u n d a i
was
n e v e r
i n v o l v e d
i n
s e l e c t i n g t h e p r o p e r t i e s f o r a c q u i s i t i o n , t h a t i t
d i d n o t p a r t i c i p a t e i n any o f t h e n e g o t i a t i o n s f o r
t h e
o p t i o n
a g r e e m e n t s ,
a n d
t h a t
no
H y u n d a i
r e p r e s e n t a t i v e was e v e r p r e s e n t o r c o m m u n i c a t e d
w i t h
any
p r o p e r t y
owner.
...
Thus,
t h e e v i d e n c e
i n d i c a t e s
t h a t t h e IDB, t h e C i t y , t h e C o u n t y , a n d
t h e
S t a t e were n o t a c t i n g t o a c q u i r e t h e p r o p e r t i e s
as an a g e n t o r u n d e r t h e d i r e c t i o n o f H y u n d a i , b u t
a t
t h e i r own d i r e c t i o n a n d on t h e i r own
i n i t i a t i v e
71
1070484;
1070487;
1070514
t o
e n t i c e H y u n d a i t o b u i l d
an a u t o m o b i l e p l a n t i n
M o n t g o m e r y C o u n t y . "
7 So. 3d a t 329.
I n r e j e c t i n g t h e j o i n t - v e n t u r e a r g u m e n t ,
we
s t a t e d :
" H y u n d a i n e v e r h a d a j o i n t o w n e r s h i p i n t e r e s t
w i t h
any o f t h e a l l e g e d j o i n t
v e n t u r e r s
i n t h e
p r o p e r t y
o f
t h e
R u s s e l l s
o r
t h e McLemore
g r o u p
upon
t h e
c l o s i n g s on t h e p r o p e r t y .
A d d i t i o n a l l y , H y u n d a i d i d
n o t
p r o v i d e
f i n a n c i n g
f o r
t h e
p u r c h a s e
o f
t h e
p r o p e r t y , and i t h a d no r i s k o r e x p e n s e s w i t h
r e g a r d
t o t h e p u r c h a s e .
...
" M o r e o v e r , t h e r e c o r d i n d i c a t e s t h a t H y u n d a i d i d
n o t have a r i g h t o f c o n t r o l w i t h r e g a r d t o how
t h e
p r o p e r t y
was
o b t a i n e d .
N o t h i n g
i n d i c a t e s
t h a t
H y u n d a i
c o n t r o l l e d t h e a c t i o n s o f t h e IDB o r
o t h e r
g o v e r n m e n t a l
e n t i t i e s
w i t h
r e g a r d
t o t h e s e l e c t i o n
o f
t h e
p r o p e r t y
f o r
t h e
p r o j e c t
s i t e ,
t h e
n e g o t i a t i o n
o f
t h e
o p t i o n
a g r e e m e n t s
on
t h e
p r o p e r t y ,
o r t h e d r a f t i n g o f t h e o p t i o n
a g r e e m e n t s .
Thus,
s u b s t a n t i a l e v i d e n c e o f
r i g h t
o f c o n t r o l by
H y u n d a i i s n o t p r e s e n t e d
i n t h e
r e c o r d .
" A l t h o u g h
t h e e v i d e n c e does
t e n d
t o e s t a b l i s h
t h a t
a
j o i n t
v e n t u r e
may
have
e x i s t e d b e t w e e n
t h e
IDB,
t h e
C i t y ,
t h e C o u n t y ,
and
t h e
S t a t e
f o r t h e
p u r p o s e
o f
e n t i c i n g
H y u n d a i
t o
l o c a t e
an
a u t o m o b i l e - m a n u f a c t u r i n g
p l a n t i n M o n t g o m e r y C o u n t y ,
s u b s t a n t i a l e v i d e n c e does n o t e x i s t t o c r e a t e a j u r y
q u e s t i o n as t o w h e t h e r H y u n d a i was a p a r t i c i p a n t i n
t h e
j o i n t
v e n t u r e .
The
e v i d e n c e
i n d i c a t e s
t h a t
H y u n d a i
m e r e l y
e v a l u a t e d
M o n t g o m e r y ' s
i n c e n t i v e
p a c k a g e ,
c o m p a r e d
i t t o
t h e
i n c e n t i v e
p a c k a g e s
o f f e r e d
by
o t h e r
c o m m u n i t i e s , and d e t e r m i n e d
t h a t
M o n t g o m e r y
p r o v i d e d
t h e
b e s t
p l a c e
t o
b u i l d i t s
p l a n t . "
7 So. 2d a t
331-32.
72
1070484;
1070487;
1070514
The l a c k o f e v i d e n c e c o n c e r n i n g
H y u n d a i ' s i n v o l v e m e n t
i n
t h e
e v e n t s made t h e b a s i s o f t h i s
a c t i o n i s j u s t as c l e a r .
H y u n d a i
r e p r e s e n t a t i v e s
were n o t i n v o l v e d
i n any o f t h e
n e g o t i a t i o n s w i t h S o u t h d a l e o r W h e e l e r / P h i l l i p s .
H y u n d a i was
n o t a p a r t y t o any o f t h e o p t i o n a g r e e m e n t s o r amendments t o
t h e
o p t i o n
a g r e e m e n t s
a n d h a d no
r o l e i n d r a f t i n g
them.
H y u n d a i was n o t a p a r t y t o t h e s a l e
t r a n s a c t i o n s , was n o t
d e e d e d a n y p r o p e r t y b y S o u t h d a l e o r W h e e l e r / P h i l l i p s , a n d d i d
n o t
p r o v i d e
any o f t h e f u n d s
u s e d
t o
a c q u i r e
t h e
l a n d
n e c e s s a r y f o r
t h e p r o j e c t .
H y u n d a i d i d
n o t e v e n p a r t i c i p a t e
i n i d e n t i f y i n g t h e
p r o p e r t y u l t i m a t e l y u s e d as t h e p l a n t
s i t e .
Ahn
t e s t i f i e d
t h a t
H y u n d a i was n o t c o n c e r n e d w i t h t h e
i n d i v i d u a l p a r c e l s t h a t made up t h e l a n d p r o v i d e d t o i t . " B u t
a c t u a l l a n d a r e a , we d o n ' t l o o k a t , b e c a u s e t o us j u s t
p r o v i d e
t h e
l a n d , w h i c h we n e e d .
T h a t ' s
i t . " He made i t
c l e a r
t h a t
e n g a g i n g i n any d i s c u s s i o n s as t o how p r o p e r t y
f o r
a p l a n t
s i t e
w o u l d be o b t a i n e d
w o u l d weaken
H y u n d a i ' s
n e g o t i a t i n g
p o s i t i o n .
Ahn t e s t i f i e d
t h a t he w o u l d n e v e r have e n g a g e d i n
any
d i s c u s s i o n s as t o o b t a i n i n g t h e p r o p e r t y
w i t h
S t a t e o r
l o c a l
o f f i c i a l s b e c a u s e , " a t t h a t
s t a g e ,
A l a b a m a
i s one o f
[ t h e ]
c o n t e n d e r s .
E i t h e r t h e y w i l l w i n o r l o s e .
I d i d n o t
a l l o w any p r i v a t e d i s c u s s i o n s .
C a n n o t h a p p e n l i k e t h a t . " Ahn
73
1070484; 1070487; 1070514
e l a b o r a t e d
on
why
he
w o u l d
n o t
have b e e n
i n v o l v e d
i n
any
d i s c u s s i o n
c o n c e r n i n g
t h e
m e t h o d s
u s e d
t o
o b t a i n
l a n d :
" [ P ] u r c h a s i n g
l a n d , do
t h i s
do
t h a t , i t ' s n o t
my
j o b .
I t ' s
t h e i r
j o b .
They
w i l l
buy
o r w h a t e v e r
and
t h e n
t r a n s f e r
t o
u s . "
H y u n d a i
n e v e r
d i s c u s s e d
w i t h
any
o t h e r
p r o j e c t
p a r t i c i p a n t
t h e e x i s t e n c e
o f a m o s t - f a v o r e d - n a t i o n
c l a u s e
i n
t h e o p t i o n a g r e e m e n t s o r how
t h a t c l a u s e m i g h t be
i m p l i c a t e d
i n
t h e
p u r c h a s e
o f
t h e
S h e l t o n
p r o p e r t y .
H y u n d a i
m e r e l y
n o t i f i e d
S t r a n g e t h a t
i t w a n t e d
a d d i t i o n a l
l a n d
i n o r d e r
t o
c l o s e
t h e
d e a l .
I t s r e p r e s e n t a t i v e s had
no
k n o w l e d g e
a b o u t
t h e p l a n d e v i s e d
t o o b t a i n t h e o p t i o n f r o m S h e l t o n ,
and
t h e y
r e f u s e d t o go a l o n g w i t h t h e m e c h a n i s m f o r t h e p u r c h a s e o f
t h e
r a i l
p r o p e r t y
by CSX
p r o p o s e d by
S t r a n g e .
H y u n d a i a r g u e s t h a t t h e
f r a u d c l a i m s
a g a i n s t
i t h a v e
no
m e r i t b e c a u s e no H y u n d a i r e p r e s e n t a t i v e e v e r knew t h e
d e t a i l s
a b o u t
how
t h e
o p t i o n s
were
o b t a i n e d
o r
c o m m u n i c a t e d
w i t h
S o u t h d a l e o r W h e e l e r / P h i l l i p s .
The b r e a c h - o f - c o n t r a c t
c l a i m s
h a v e no m e r i t ,
i t a r g u e s , b e c a u s e H y u n d a i was
n o t
a p a r t y
t o
any
c o n t r a c t
w i t h
S o u t h d a l e
o r
W h e e l e r / P h i l l i p s .
H y u n d a i
f u r t h e r
a r g u e s
t h a t
i t c o u l d
n o t
have f o r m e d
t h e
n e c e s s a r y
i n t e n t
t o
i n t e r f e r e
w i t h
S o u t h d a l e
and
W h e e l e r / P h i l l i p s ' s
74
1070484; 1070487; 1070514
c o n t r a c t u a l
r e l a t i o n s .
F i n a l l y ,
H y u n d a i
a r g u e s ,
t h e
c o n s p i r a c y
c l a i m s
h a v e
no
m e r i t
b e c a u s e ,
i t s a y s ,
H y u n d a i
n e v e r e n g a g e d i n any
c o n c e r t e d
c o u r s e
o f c o n d u c t w i t h any
o f
t h e
o t h e r
p r o j e c t p a r t i c i p a n t s b u t ,
i n s t e a d , was
e n g a g e d
i n
arm's l e n g t h n e g o t i a t i o n s w i t h them.
We
c o n c l u d e
t h a t
t h e r e
i s no
g e n u i n e
i s s u e o f
m a t e r i a l
f a c t
as
t o any
o f S o u t h d a l e ' s
and
W h e e l e r / P h i l l i p s ' s
c l a i m s
a g a i n s t H y u n d a i .
The summary j u d g m e n t e n t e r e d i n i t s f a v o r i s
due
t o be
a f f i r m e d on
t h i s
a l t e r n a t i v e g r o u n d .
V I .
S t a n d i n g
o f
S o u t h d a l e
I n
h i s
c r o s s - a p p e a l ,
S t r a n g e
u r g e s
us
t o
a f f i r m
t h e
summary j u d g m e n t a g a i n s t S o u t h d a l e b a s e d on l a c k o f
s t a n d i n g .
1 0
T h i s
a c t i o n was
i n i t i a l l y
commenced by
S o u t h d a l e ,
LLC,
and
o t h e r s
on
May
28,
2004.
An
amended c o m p l a i n t
was
f i l e d
on
A u g u s t 20, 2004.
The
c a p t i o n o f t h e amended c o m p l a i n t
a g a i n
r e f e r r e d
t o
S o u t h d a l e ,
LLC,
as
a
p l a i n t i f f
b u t
a d d e d
t h e
p h r a s e , " f / k / a S o u t h d a l e ,
I n c . "
A t p a r a g r a p h 3 o f t h e amended
c o m p l a i n t ,
t h e
f o l l o w i n g a p p e a r s :
"3.
The
p l a i n t i f f
S o u t h d a l e ,
LLC
f / k / a
S o u t h d a l e ,
I n c .
( ' S o u t h d a l e ' ) i s an A l a b a m a
l i m i t e d
1 0 T h e
o t h e r
p r o j e c t p a r t i c i p a n t s j o i n e d i n t h e
a r g u m e n t
t h a t S o u t h d a l e ,
LLC,
does n o t h a v e
s t a n d i n g .
75
1070484; 1070487; 1070514
l i a b i l i t y
c o r p o r a t i o n
w i t h
i t s p r i n c i p a l
p l a c e
o f
b u s i n e s s
i n M o n t g o m e r y , A l a b a m a .
1
"
1On
J u n e 24, 2002 S o u t h d a l e , I n c . was
d i s s o l v e d
and
on J u n e 12, 2002 S o u t h d a l e ,
LLC
was
f o r m e d
and
assumed a l l r i g h t s
t o p u r s u e
t h i s
a c t i o n on
b e h a l f
o f
S o u t h d a l e
I n c .
as
p r o v i d e d
f o r by
A l a . Code
§
1 0 - 2 B - 1 4 . 0 5 ( 6 )
( 1 9 7 5 ) . "
T h e r e
i s no
§ 1 0 - 2 B - 1 4 . 0 5 ( 6 )
i n t h e A l a b a m a Code
1975.
P r e s u m a b l y ,
t h e
r e f e r e n c e
i s t o
§ 1 0 - 2 B - 1 4 . 0 5 ( b ) ( 6 ) ,
w h i c h
p r o v i d e s
t h a t
t h e
d i s s o l u t i o n
o f
a
c o r p o r a t i o n
d o e s
n o t
" [ p ] r e v e n t
commencement
o f
a
p r o c e e d i n g
by
o r
a g a i n s t
t h e
c o r p o r a t i o n
i n
i t s c o r p o r a t e
name."
However,
b e c a u s e
t h e
a c t i o n was
n e v e r commenced i n t h e name o f S o u t h d a l e , I n c . ,
t h e
d i s s o l v e d
e n t i t y ,
t h i s Code s e c t i o n d o e s n o t
a p p l y .
S t r a n g e
moved
t o
d i s m i s s
t h e
amended
c o m p l a i n t
and
a l l e g e d :
" [ S o u t h d a l e ]
l a c k [ s ]
s t a n d i n g
t o
a s s e r t
c l a i m s
a g a i n s t S t r a n g e .
[ S o u t h d a l e
has]
n o t a l l e g e d ; o r shown, t h a t
any
o f
S t r a n g e ' s
c o n d u c t
c a u s e d
them
any
i n j u r y . "
A
s u b s e q u e n t memorandum i n s u p p o r t o f t h e m o t i o n t o d i s m i s s d o e s
n o t a d d r e s s t h e i s s u e o f s t a n d i n g .
On
J u l y 11, 2006, S t r a n g e
f i l e d
a
m o t i o n
f o r
a
summary
j u d g m e n t ,
c h a l l e n g i n g
t h e
s t a n d i n g
o f S o u t h d a l e , LLC,
t o a s s e r t t h e c l a i m s
c o n t a i n e d
i n
t h e c o m p l a i n t .
I n t h e m o t i o n S t r a n g e a l l e g e s t h a t a t t h e
t i m e
76
1070484; 1070487; 1070514
o f t h e commencement o f t h e
a c t i o n , S o u t h d a l e ,
I n c . ,
had
b e e n
d i s s o l v e d
and
t h a t
S o u t h d a l e ,
LLC,
n e v e r owned t h e
p r o p e r t y
t h a t S o u t h d a l e ,
I n c . ,
t h e
d i s s o l v e d
c o r p o r a t i o n ,
t r a n s f e r r e d
t o t h e
C i t y and
t h e C o u n t y p u r s u a n t t o t h e
o p t i o n
a g r e e m e n t .
On
O c t o b e r 2, 2007, a f t e r a h e a r i n g
on
S t r a n g e ' s m o t i o n
on S e p t e m b e r 21, 2007, S o u t h d a l e , LLC,
s u p p l e m e n t e d t h e
r e c o r d
by
f i l i n g
a
document
d a t e d
S e p t e m b e r
28,
2007,
i n
w h i c h
S o u t h d a l e ,
I n c . ,
t r a n s f e r r e d
t o S o u t h d a l e ,
LLC,
i t s
a s s e t s ,
i n c l u d i n g
any
and
a l l p e r s o n a l
a s s e t s
and
c h o s e s
i n
a c t i o n
a r i s i n g
o u t
o f
any
c o n t r a c t
t o
s e l l
a n d / o r
t h e
s a l e
o f
any
r e a l p r o p e r t y
by S o u t h d a l e , I n c .
A t t h e same t i m e , S o u t h d a l e ,
LLC,
f i l e d an a f f i d a v i t o f R e e s e H. M c K i n n e y , J r . , i n w h i c h
he
d e s c r i b e d
h i m s e l f
as p r e s i d e n t
o f S o u t h d a l e , I n c . , a t t h e
t i m e
o f i t s d i s s o l u t i o n i n 2002 and
f u r t h e r s t a t e d t h a t
i t was
t h e
p u r p o s e and
i n t e n t o f S o u t h d a l e , I n c . , t o c o n v e y t o S o u t h d a l e ,
LLC,
a l l o f
i t s u n d i s t r i b u t e d
a s s e t s - - " r e a l ,
p e r s o n a l ,
and
m i x e d " - - r e t a i n i n g
n o t h i n g
i n t h e
c o r p o r a t i o n .
S o u t h d a l e
d i d
n o t
s e e k
p e r m i s s i o n
f r o m
t h e
t r i a l
c o u r t
t o
f i l e
t h e s e
e v i d e n t i a r y
s u b m i s s i o n s
a f t e r
t h e
h e a r i n g
on
t h e
summary-
j u d g m e n t m o t i o n .
S t r a n g e
and
CSX
f i l e d
m o t i o n s
t o
s t r i k e
t h e s e a d d i t i o n a l e v i d e n t i a r y m a t e r i a l s ,
c i t i n g as g r o u n d s
f o r
s t r i k i n g u n t i m e l i n e s s ,
i n c o n s i s t e n c i e s b e t w e e n t h e
a f f i d a v i t
77
1070484; 1070487; 1070514
and
t h e
p r e v i o u s
d e p o s i t i o n
t e s t i m o n y
o f
M c K i n n e y ,
and
h e a r s a y .
1 1
S t r a n g e p o i n t s o u t
t h a t t h e d o c u m e n t s e x e c u t e d
a t
t h e t i m e o f t h e
d i s s o l u t i o n o f S o u t h d a l e ,
I n c . ,
do
n o t
r e f e r
t o
a s s i g n m e n t s
o f
a s s e t s
o f
S o u t h d a l e ,
I n c . ,
o t h e r
t h a n
c e r t a i n
r e a l p r o p e r t y
n o t
i n v o l v e d i n t h e t r a n s a c t i o n t h a t i s
t h e
b a s i s
o f
t h i s
a c t i o n .
S t r a n g e
c o n t e n d s
t h a t
a c t i o n s
a l l e g i n g
m i s r e p r e s e n t a t i o n
and
d e c e i t
a r e
p e r s o n a l
a c t i o n s
t h a t
r u n
w i t h
t h e
o w n e r s h i p
o f
t h e
p r o p e r t y
and
a r e
n o t
a s s i g n a b l e .
S t r a n g e
a r g u e s
t h a t
S o u t h d a l e ,
I n c . ,
as
a
d i s s o l v e d c o r p o r a t i o n , h a d
s t a n d i n g
t o commence t h e a c t i o n i n
i t s
own name and
f a i l e d t o do s o .
The
t r i a l c o u r t n e v e r r u l e d
on t h e m o t i o n s t o s t r i k e ;
i n s t e a d , one month l a t e r ,
t h e
t r i a l
c o u r t
e n t e r e d
a
f i n a l j u d g m e n t on
o t h e r
g r o u n d s .
The
t r i a l
c o u r t
s t a t e d :
" B e c a u s e
t h e
C o u r t
f i n d s
t h a t
t h e r e
has
b e e n
no
b r e a c h
o f
c o n t r a c t
as
t o
[ S o u t h d a l e ] ,
and
b e c a u s e
a l l
t o r t c l a i m s
a r e d i s m i s s e d
by
a p p l i c a t i o n o f
t h e
S t a t u t e
o f
L i m i t a t i o n s ,
i t
i s
n o t
n e c e s s a r y
t o
a d d r e s s
[ S o u t h d a l e ' s ]
s t a n d i n g
t o
b r i n g
t h i s
a c t i o n . "
On a p p e a l ,
S o u t h d a l e , LLC,
r e l i e s upon t h e t r a n s f e r - o f - a s s e t s
document e x e c u t e d a f t e r t h e i s s u e had b e e n r a i s e d i n S t r a n g e ' s
1 1The
IDB
and
T h o r n t o n j o i n e d i n t h e m o t i o n s t o
s t r i k e .
78
1070484; 1070487; 1070514
m o t i o n
f i l e d i n J u l y 2006 and a f t e r t h e a r g u m e n t on t h e m o t i o n
i n S e p t e m b e r 2007.
S t r a n g e ' s m o t i o n f o r a summary j u d g m e n t was
s u p p o r t e d by
ample e v i d e n c e
o f t h e
l a c k
o f any
i n t e r e s t
on
t h e p a r t
o f
S o u t h d a l e , LLC,
i n t h e t r a n s a c t i o n t h a t i s t h e b a s i s o f
t h i s
a c t i o n ,
t h e r e b y
s h i f t i n g
t h e
b u r d e n
t o
S o u t h d a l e ,
LLC,
t o
a d d u c e s u b s t a n t i a l e v i d e n c e i n o p p o s i t i o n .
B a s s v. S o u t h T r u s t
Bank
o f B a l d w i n
C o u n t y ,
538
So.
2d
794
( A l a . 1 9 8 9 ) .
The
m o t i o n
r e m a i n e d
p e n d i n g
f o r o v e r a y e a r .
B e f o r e t h e h e a r i n g
on
S e p t e m b e r
21,
2007,
S o u t h d a l e ,
LLC,
o f f e r e d
no
w r i t t e n
r e s p o n s e
o r e v i d e n c e .
As
p r e v i o u s l y n o t e d ,
S o u t h d a l e ,
LLC,
f i l e d
a d d i t i o n a l e v i d e n c e
a f t e r t h e h e a r i n g , and S t r a n g e
and
CSX moved t o s t r i k e
t h a t e v i d e n c e , n o t i n g t h e a b s e n c e o f
any
e v i d e n c e i n o p p o s i t i o n b e f o r e t h e h e a r i n g and t h e u n t i m e l i n e s s
o f t h e e v i d e n c e o f f e r e d a f t e r t h e h e a r i n g .
I n i t s r e p l y
b r i e f
b e f o r e t h i s C o u r t , S o u t h d a l e , LLC, o f f e r s as j u s t i f i c a t i o n f o r
t h e
b e l a t e d
s u b m i s s i o n
t h e
a r g u m e n t
o f
t h e
p r o j e c t
p a r t i c i p a n t s a t t h e h e a r i n g t h a t S o u t h d a l e , I n c . , c o u l d h a v e
made s u c h an
a s s i g n m e n t .
We do n o t r e a c h t h e i s s u e w h e t h e r t h e summary j u d g m e n t i s
due t o be a f f i r m e d on t h e b a s i s o f S o u t h d a l e ' s a l l e g e d l a c k o f
s t a n d i n g ,
i n v i e w
o f
t h e
t r i a l
c o u r t ' s h a v i n g
deemed i t
79
1070484; 1070487; 1070514
u n n e c e s s a r y
t o r e a c h
t h i s
i s s u e
and t h e p e n d e n c y o f t h e
m o t i o n s t o s t r i k e t h e e v i d e n c e b e l a t e d l y o f f e r e d i n o p p o s i t i o n
t o
t h e m o t i o n .
I t s f a i l u r e
t o r e a c h t h e i s s u e o f
s t a n d i n g
e x p l a i n s t h e t r i a l
c o u r t ' s
f a i l u r e t o r u l e on t h e s e m o t i o n s .
The
t r i a l
c o u r t has
d i s c r e t i o n
i n d e c i d i n g
w h e t h e r
t o
p e r m i t
a p a r t y
t o r e o p e n
a c a s e
and t o
o f f e r
a d d i t i o n a l
e v i d e n c e .
G r e e n T r e e A c c e p t a n c e , I n c . v. S t a n d r i d g e , 565 So.
2d
38,
46
( A l a . 1 9 9 0 ) .
W i t h o u t
t h e
e x e r c i s e
o f
t h a t
d i s c r e t i o n i n f a v o r o f t h e n o n m o v a n t , t h e f a i l u r e t o s u b m i t
e v i d e n c e i n o p p o s i t i o n t o t h e summary-judgment m o t i o n
u n t i l
a f t e r a h e a r i n g on t h e m o t i o n
c o n s t i t u t e s a f a i l u r e
on t h e
n o n m o v a n t ' s p a r t t o s u s t a i n i t s
b u r d e n .
H a r r i s v . H e a l t h C a r e
A u t h . o f H u n t s v i l l e , 6 So. 3d 468, 477-78 ( A l a . 2 0 0 8 ) .
S u c h
d i s c r e t i o n
t o a l l o w
a t a r d y
r e s p o n s e
b e f o r e t h e
e n t r y o f a j u d g m e n t on t h e m o t i o n must o r d i n a r i l y be i n v o k e d
by a m o t i o n
f i l e d u n d e r R u l e 6 ( b ) ,
A l a . R. C i v . P. ("When b y
t h e s e r u l e s ... an a c t i s r e q u i r e d o r a l l o w e d t o be done a t o r
w i t h i n a s p e c i f i e d t i m e , t h e c o u r t f o r c a u s e shown may a t any
t i m e i n i t s
d i s c r e t i o n
(2)
upon m o t i o n made a f t e r t h e
e x p i r a t i o n o f t h e s p e c i f i e d p e r i o d p e r m i t t h e a c t t o be done
where t h e f a i l u r e t o a c t was t h e r e s u l t o f e x c u s a b l e n e g l e c t
" ) .
However, a r e s p o n s e t o a m o t i o n t o s t r i k e
c a n be
80
1070484; 1070487; 1070514
t r e a t e d as a m o t i o n u n d e r R u l e
6 ( b ) ( 2 )
and
s h o u l d be
d i s p o s e d
o f p u r s u a n t
t o t h e s t a n d a r d e s t a b l i s h e d t h e r e i n .
See
H a r d w i c k
v. S u n b e l t R e n t a l s , I n c . ,
(No. 09-CV-1106) (C.D.
I l l . May
13,
2009)
( n o t
r e p o r t e d
i n
F.
Supp.
2 d ) ,
d e a l i n g
w i t h
t h e
a n a l o g o u s
f e d e r a l r u l e
("Moving on
t o
P l a i n t i f f ' s
m o t i o n
t o
s t r i k e
U n i o n ' s
A n s w e r ,
P l a i n t i f f
p o i n t s
o u t
t h a t ,
b e f o r e
f i l i n g i t s A n s w e r l a t e , U n i o n f a i l e d
t o r e q u e s t l e a v e o f
C o u r t
t o
do
so
u n d e r
Fed.
R.
C i v .
P.
6 ( b ) ( 1 ) ( B ) .
A l t h o u g h
P l a i n t i f f ' s o b s e r v a t i o n a p p e a r s t o be c o r r e c t , f o r p u r p o s e s o f
e f f i c i e n c y ,
t h e
C o u r t
w i l l
c o n s t r u e
U n i o n ' s
r e s p o n s e
t o
P l a i n t i f f ' s
m o t i o n f o r d e f a u l t j u d g m e n t as a R u l e
6 ( b ) ( 1 ) ( B )
m o t i o n f o r l e a v e t o
f i l e
an u n t i m e l y
a n s w e r . " ) .
On
remand, b e f o r e
r e a c h i n g
t h e
m e r i t s
o f
t h e
i s s u e
o f
S o u t h d a l e ' s
s t a n d i n g , t h e
t r i a l c o u r t must r u l e on t h e m o t i o n s
t o
s t r i k e .
I n v i e w o f t h e u n s e t t l e d s t a t u s o f t h e
e v i d e n c e
p r o p e r l y
t o be
c o n s i d e r e d ,
an
i s s u e n o t
y e t
r e s o l v e d by
t h e
t r i a l
c o u r t ,
we
d e c l i n e
t o
r e a c h
t h e
q u e s t i o n
w h e t h e r
t h e
i s s u e o f s t a n d i n g i s an a p p r o p r i a t e a l t e r n a t i v e b a s i s on w h i c h
t o
a f f i r m t h e
t r i a l
c o u r t ' s j u d g m e n t as t o
S o u t h d a l e .
V I I .
S p e c i a l - M a s t e r
Fee
A f t e r
t h e
t r i a l
c o u r t g r a n t e d
t h e p r o j e c t
p a r t i c i p a n t s '
m o t i o n t o
d i s q u a l i f y
S o u t h d a l e ' s
i n i t i a l
c o u n s e l ,
t h e
t r i a l
81
1070484; 1070487; 1070514
c o u r t
a p p o i n t e d
a s p e c i a l m a s t e r t o o v e r s e e t h e
t r a n s f e r
o f
f i l e s
and
o t h e r
m a t e r i a l s
f r o m t h e
d i s q u a l i f i e d
l a w
f i r m
t o
t h e
r e p l a c e m e n t
l a w
f i r m
and
t o
r e v i e w
t h e
f i l e s
o f
t h e
d i s q u a l i f i e d
f i r m
t o
d e t e r m i n e
w h e t h e r
t h e r e
were
any
m a t e r i a l s
o r
i n f o r m a t i o n
a c q u i r e d
b e c a u s e
o f
Lee
M i l l e r ' s
a f f i l i a t i o n
w i t h
t h e
f i r m f o l l o w i n g h i s employment w i t h
t h e
D e p a r t m e n t
o f
F i n a n c e
i n
o r d e r
t h a t
no
s u c h
m a t e r i a l s
o r
i n f o r m a t i o n were f o r w a r d e d t o r e p l a c e m e n t c o u n s e l .
A l t h o u g h
t h e
s p e c i a l
m a s t e r
r e p o r t e d
t h a t
no
s u c h
m a t e r i a l s
o r
i n f o r m a t i o n was
a c q u i r e d ,
t h e o v e r s i g h t and
r e v i e w were
t i m e -
c o n s u m i n g , r e s u l t i n g i n a s p e c i a l - m a s t e r
f e e o f o v e r $ 2 8 , 0 0 0 .
The
t r i a l
c o u r t
o r d e r e d
S o u t h d a l e
t o pay
t h e
s p e c i a l - m a s t e r
f e e
i n i t s e n t i r e t y .
S o u t h d a l e a r g u e s
t h a t b e c a u s e
t h e m o t i o n
t o
d i s q u a l i f y
and
t h e
s u b s e q u e n t
e f f o r t s
by
t h e
s p e c i a l
m a s t e r
were
i n i t i a t e d by t h e r e m a i n i n g
p r o j e c t p a r t i c i p a n t s , t h e
s p e c i a l -
m a s t e r
f e e
s h o u l d
h a v e b e e n b o r n e
e i t h e r
e n t i r e l y
by
t h e
p r o j e c t p a r t i c i p a n t s o r
s p l i t b e t w e e n them and
S o u t h d a l e
and
t h a t
i t
i s
u n f a i r
t o
r e q u i r e
S o u t h d a l e
t o
pay
f o r
an
i n v e s t i g a t i o n
t h a t showed, i t a r g u e s ,
t h a t
d i s q u a l i f i c a t i o n
was
n o t w a r r a n t e d .
S o u t h d a l e c i t e s no a u t h o r i t y i n i t s b r i e f ,
82
1070484; 1070487; 1070514
h o w e v e r , t o s u p p o r t i t s a r g u m e n t , as r e q u i r e d by R u l e 28,
A l a .
R.
App.
P.
The
i n c l u s i o n o f
a s p e c i a l - m a s t e r
f e e
as
an e l e m e n t
o f
c o s t s t a x e d a g a i n s t a p a r t y i s " e n t i r e l y d i s c r e t i o n a r y , and
we
w i l l
n o t
r e v e r s e
u n l e s s
i t a p p e a r s
f r o m
t h e
r e c o r d ,
a f t e r
i n d u l g i n g
a l l f a i r
i n t e n d m e n t s
i n f a v o r
o f
t h e
r u l i n g ,
t h a t
t h e
t a x a t i o n
o f
c o s t s
was
u n j u s t
and
u n f a i r .
W a l d e n
v.
W a l d e n ,
277
A l a .
459,
171
So.
2d
851
( 1 9 6 5 ) . "
C i t y
o f
B i r m i n g h a m v. C i t y o f F a i r f i e l d ,
396
So.
2d a t 697.
I n W a l d e n
v. W a l d e n ,
277
A l a .
459,
171
So.
2d
851
( 1 9 6 5 ) ,
t h i s
C o u r t
s t a t e d :
"The
t h r e e c a s e s c i t e d by a p p e l l e e s h o l d t h a t i n
e q u i t y
t h e
m a t t e r
o f
c o s t s
r e s t s
l a r g e l y i n
t h e
d i s c r e t i o n
o f
t h e
c h a n c e l l o r
and
t h a t
t h e
t a x a t i o n
o f
c o s t s
may
be
v a r i e d
as
t h e
j u s t i c e
o f
t h e
c a s e
may
r e q u i r e .
Thompson v.
B r y a n t ,
251
A l a .
566,
38
So.
2d
590
[ ( 1 9 4 9 ) ] ;
P l a t e a u Community
A s s o c i a t i o n
v. G r e e n , 243
A l a . 531,
10
So.
2d
860
[ ( 1 9 4 2 ) ] ;
and
K e n n e d y
v.
S o r s b y ,
209
A l a .
188,
95
So.
891
[ ( 1 9 2 3 ) ] .
E q u i t y
u s u a l l y f o l l o w s t h e
g e n e r a l
r u l e
a t
l a w
t h a t
c o s t s
a r e
a w a r d e d
i n f a v o r
o f
and
n o t
a g a i n s t
t h e
s u c c e s s f u l p a r t y i n t h e
s u i t .
L u c a s
v.
L u c a s ,
258
A l a .
515,
64
So.
2d
70
[ ( 1 9 5 3 ) ] ;
D o z i e r
v. P a y n e , 244
A l a . 476,
14
So.
2d 376
[ ( 1 9 4 3 ) ] .
An
i m p r o p e r
e x e r c i s e
o f
d i s c r e t i o n a p p e a r s when
t h e
r e c o r d ,
a f t e r
i n d u l g i n g
a l l
f a i r
i n t e n d m e n t s
i n
f a v o r o f t h e
r u l i n g , d i s c l o s e s t h e t a x a t i o n o f
c o s t s
was
u n j u s t
and
u n f a i r ; o t h e r w i s e ,
t h e
a c t i o n o f
t h e
t r i a l
c o u r t
s h o u l d
n o t
be
d i s t u r b e d .
D o z i e r
v.
P a y n e , 244
A l a . 476,
14
So.
2d
376."
83
1070484; 1070487; 1070514
277
A l a . a t 462, 171 So. 2d a t 854 ( e m p h a s i s a d d e d ) .
I n v i e w
o f t h e t r i a l
c o u r t ' s o r d e r a d v e r s e t o S o u t h d a l e on t h e i s s u e
o f d i s q u a l i f i c a t i o n , we do n o t f i n d t h e a w a r d o f t h e s p e c i a l -
m a s t e r f e e as c o s t s i n f a v o r o f t h e p r o j e c t p a r t i c i p a n t s t o be
u n j u s t
o r
u n f a i r .
The
t r i a l
c o u r t
d i d n o t e x c e e d i t s
d i s c r e t i o n
i n o r d e r i n g
S o u t h d a l e t o p a y t h e
s p e c i a l - m a s t e r
f e e .
V I I I .
A t t o r n e y - C l i e n t P r i v i l e g e and Work
P r o d u c t
W h e e l e r / P h i l l i p s
r e t a i n e d
W i l l i a m s
t o r e p r e s e n t
t h e i r
i n t e r e s t s
and t o n e g o t i a t e
w i t h
t h e IDB and
o t h e r s
w i t h
r e s p e c t t o t h e s a l e o f t h e i r p r o p e r t y .
I n A u g u s t 2007, CSX
moved t o c o m p e l t h e p r o d u c t i o n
o f W i l l i a m s ' s
e n t i r e
l e g a l
f i l e ,
i n c l u d i n g h i s c o r r e s p o n d e n c e and c o m m u n i c a t i o n s
w i t h
W h e e l e r / P h i l l i p s .
W h e e l e r / P h i l l i p s o b j e c t e d t o p r o d u c i n g t h e
f i l e on t h e g r o u n d o f a t t o r n e y - c l i e n t p r i v i l e g e ;
W i l l i a m s ' s
l a w
f i r m o b j e c t e d on t h e g r o u n d t h a t t h e f i l e was
a t t o r n e y
w o r k p r o d u c t .
The t r i a l c o u r t f o u n d t h a t W h e e l e r / P h i l l i p s h a d
w a i v e d
t h e
a t t o r n e y - c l i e n t
p r i v i l e g e
b e c a u s e
t h e y
h a d
s u b m i t t e d
W i l l i a m s ' s
a f f i d a v i t i n o p p o s i t i o n t o m o t i o n s f o r
a
summary j u d g m e n t f i l e d b y t h e p r o j e c t p a r t i c i p a n t s and b e c a u s e
W h e e l e r h a d s u b m i t t e d h e r own a f f i d a v i t .
The t r i a l c o u r t a l s o
f o u n d
t h a t
W h e e l e r / P h i l l i p s h a d w a i v e d t h e a t t o r n e y - c l i e n t
p r i v i l e g e b e c a u s e t h e y h a d p r o d u c e d a l e t t e r W i l l i a m s w r o t e t o
84
1070484;
1070487;
1070514
M c K i n n e y , who was n e v e r one o f W i l l i a m s ' s
c l i e n t s .
The
c o u r t
r e a s o n e d t h a t b e c a u s e W i l l i a m s h a d n e g o t i a t e d w i t h t h e p r o j e c t
p a r t i c i p a n t s
and
h a d
p a r t i c i p a t e d i n
d r a f t i n g t h e
o p t i o n
a g r e e m e n t s
and
amended
o p t i o n
a g r e e m e n t s ,
" i t i s
b e y o n d
d i s p u t e
t h a t a t t o r n e y - c l i e n t c o m m u n i c a t i o n s b e t w e e n
W i l l i a m s
and W h e e l e r / P h i l l i p s a r e r e q u i r e d f o r t h e t r u t h f u l r e s o l u t i o n
o f
t h i s
c a s e . "
R e l y i n g on R u l e 510, A l a . R.
E v i d . , and
Ex
p a r t e G r e a t A m e r i c a n S u r p l u s L i n e s I n s u r a n c e Co., 540 So. 2d
1357
( A l a . 1 9 8 9 ) , t h e
t r i a l
c o u r t h e l d t h a t W h e e l e r / P h i l l i p s
h a d u s e d p r i v i l e g e d c o m m u n i c a t i o n s "as b o t h s w o r d and
s h i e l d , "
and i t o r d e r e d W h e e l e r / P h i l l i p s t o d i s c l o s e W i l l i a m s ' s
f i l e .
R u l e
510
s t a t e s
t h a t
t h e w a i v e r o f a p r i v i l e g e
o c c u r s
o n l y where t h e h o l d e r o f t h e p r i v i l e g e
" v o l u n t a r i l y d i s c l o s e s
o r c o n s e n t s t o t h e d i s c l o s u r e o f any
s i g n i f i c a n t p a r t o f t h e
p r i v i l e g e d m a t t e r . "
W h e e l e r / P h i l l i p s a r g u e t h a t t h e y n e v e r
d i s c l o s e d
o r c o n s e n t e d t o t h e d i s c l o s u r e o f any
p r i v i l e g e d
i n f o r m a t i o n .
They a r g u e
t h a t
t h e
l e t t e r
f r o m W i l l i a m s
t o
M c K i n n e y
m e r e l y
s e t s
o u t
i n f o r m a t i o n
W i l l i a m s
h a d
l e a r n e d
a b o u t t h e c i r c u m s t a n c e s u n d e r w h i c h t h e o p t i o n t o t h e
S h e l t o n
p r o p e r t y was o b t a i n e d and t h e p u r c h a s e o f t h a t p r o p e r t y by t h e
S t a t e and t h a t i t
made no d i s c l o s u r e t o M c K i n n e y o f what c o u l d
be c o n s i d e r e d
p r i v i l e g e d c o m m u n i c a t i o n s b e t w e e n
W i l l i a m s
and
W h e e l e r / P h i l l i p s .
A l t h o u g h t h e l e t t e r t o M c K i n n e y i n c l u d e d a
85
1070484; 1070487; 1070514
s m a l l
e x c e r p t
f r o m a p o r t i o n o f a l e t t e r
W i l l i a m s
w r o t e t o
W h e e l e r / P h i l l i p s , t h e e x c e r p t c o n t a i n e d
o n l y a d e s c r i p t i o n o f
what G e o r g e h a d t o l d W i l l i a m s a n d M c K i n n e y i n
a p r i o r m e e t i n g
and,
t h e y a r g u e , d o e s n o t c o n s t i t u t e a s i g n i f i c a n t p a r t o f
t h e
p r i v i l e g e d c o m m u n i c a t i o n .
See R u l e 510, A d v i s o r y
C o m m i t t e e
N o t e s
( " D i s c l o s u r e o f an i n s i g n i f i c a n t p a r t o f t h e p r i v i l e g e d
m a t t e r does n o t w a i v e t h e p r i v i l e g e . " ) .
M o r e o v e r ,
W h e e l e r / P h i l l i p s
a r g u e ,
any
w a i v e r
o f t h e
a t t o r n e y - c l i e n t
p r i v i l e g e
must be made by t h e c l i e n t a n d
c a n n o t be made by t h e l a w y e r
r e p r e s e n t i n g t h e c l i e n t
w i t h o u t
t h e
c l i e n t ' s
c o n s e n t .
S w a i n v . T e r r y , 454 So. 2d 948 ( A l a .
1 9 8 4 ) .
W h e e l e r / P h i l l i p s m a i n t a i n
t h a t
t h e r e i s no e v i d e n c e
i n d i c a t i n g t h a t t h e y c o n s e n t e d t o W i l l i a m s ' s w a i v i n g a n y p a r t
o f
t h e a t t o r n e y - c l i e n t p r i v i l e g e
a n d
t h a t
he
c a n n o t
be
c o m p e l l e d t o t e s t i f y a g a i n s t them as t o a d v i c e he gave them o r
o t h e r c o m m u n i c a t i o n s t h a t m i g h t p r e j u d i c e them i n t h i s
c a s e .
R i c h a r d s v. L e n n o x I n d u s . , I n c . , 574 So. 2d 736 ( A l a . 1 9 9 0 ) .
F i n a l l y , W h e e l e r / P h i l l i p s a r g u e , W i l l i a m s ' s a f f i d a v i t was
o f f e r e d i n o p p o s i t i o n t o t h e p r o j e c t p a r t i c i p a n t s ' m o t i o n
f o r
a summary j u d g m e n t .
I t d i d
n o t d i s c l o s e any c o m m u n i c a t i o n s
b e t w e e n W i l l i a m s a n d W h e e l e r / P h i l l i p s , t h e y s a y ,
a n d d i d n o t
i n j e c t
p r i v i l e g e d
m a t t e r
i n t o
t h e s e
p r o c e e d i n g s .
The
a f f i d a v i t
m e r e l y
a d d r e s s e d
d i s c l o s u r e s made t o W i l l i a m s b y
86
1070484; 1070487; 1070514
c e r t a i n
p r o j e c t p a r t i c i p a n t s o r t h e i r
r e p r e s e n t a t i v e s
a b o u t
w h i c h t h e p r o j e c t p a r t i c i p a n t s h a d a l r e a d y d e p o s e d h i m . As t o
W h e e l e r ' s a f f i d a v i t , she d i d
n o t r e v e a l any c o m m u n i c a t i o n she
had h a d w i t h W i l l i a m s
e x c e p t t o s a y t h a t he i n f o r m e d h e r i n
November 2002 t h a t a h i g h e r
p r i c e p e r a c r e h a d b e e n p a i d t o
a n o t h e r
l a n d o w n e r .
E s s e n t i a l l y ,
t h e p r o j e c t
p a r t i c i p a n t s s e e k
i n f o r m a t i o n
c o n c e r n i n g
what W i l l i a m s and h i s c l i e n t s knew a b o u t
m a t t e r s
p e r t i n e n t t o t h e t o l l i n g o f t h e s t a t u t e o f l i m i t a t i o n s on t h e
f r a u d c l a i m s and when t h e y knew i t .
T h a t i s s u e i s c r i t i c a l t o
t h e
v i a b i l i t y
o f t h e f r a u d
c l a i m s .
W i l l i a m s
h a s g i v e n
an
a f f i d a v i t s u b m i t t e d as e v i d e n c e i n t h i s c a s e c o n c e r n i n g
f a c t s
s u c h
as when
he
r e c e i v e d
a
c o p y
o f t h e
S h e l t o n
o p t i o n
a g r e e m e n t and t h e s t e p s
he t o o k t o d e t e r m i n e
w h e t h e r t h e
o p t i o n
h a d b e e n
e x e r c i s e d .
W h e e l e r
h a s
a l s o
g i v e n
an
a f f i d a v i t c o n c e r n i n g what W i l l i a m s
t o l d h e r a b o u t t h e S h e l t o n
o p t i o n
a g r e e m e n t .
The
t r i a l
c o u r t h a s g r a n t e d t h e m o t i o n t o c o m p e l
W i l l i a m s
t o p r o d u c e h i s e n t i r e l e g a l
f i l e .
P r o d u c t i o n
o f t h e e n t i r e
f i l e
sweeps t o o b r o a d l y ;
d o c u m e n t s
r e l a t i n g t o
i n f o r m a t i o n
l e a r n e d
b y
W i l l i a m s
f r o m
t h i r d
p a r t i e s
d u r i n g
h i s
i n v e s t i g a t i o n
d e a l i n g
w i t h
t h e t i m i n g o f h i s k n o w l e d g e o f
a l l e g e d
f r a u d ,
m a t t e r s
h i g h l y
r e l e v a n t t o t h e i s s u e o f t h e
87
1070484; 1070487; 1070514
t o l l i n g
o f t h e s t a t u t e o f l i m i t a t i o n s on t h e f r a u d
c l a i m s ,
c o n s t i t u t e h i s work p r o d u c t
i f p r e p a r e d
i n a n t i c i p a t i o n o f
l i t i g a t i o n o r f o r t r i a l .
See R u l e 2 6 ( b ) ( 3 ) , A l a .
R. C i v .
P.
Of c o u r s e , some o f t h o s e d o c u m e n t s m i g h t p r e d a t e t h e t i m e when
t h i s l i t i g a t i o n was i m m i n e n t .
However, t h a t c i r c u m s t a n c e
d o e s
n o t p r e c l u d e t h e s t a t u s o f t h e d o c u m e n t s as w o r k p r o d u c t .
See
U n i t e d
S t a t e s v . E l P a s o Co., 682 F.2d 530, 542-43 ( 5 t h
C i r .
1982)
( " ' [ L ] i t i g a t i o n n e e d n o t [ n e c e s s a r i l y ] be i m m i n e n t ...
as l o n g as t h e p r i m a r y
m o t i v a t i n g p u r p o s e b e h i n d t h e c r e a t i o n
o f t h e document was t o a i d i n p o s s i b l e f u t u r e
l i t i g a t i o n . ' "
( q u o t i n g U n i t e d S t a t e s v . D a v i s , 636 F.2d 1028, 1040 ( 5 t h C i r .
1 9 8 1 ) ) ) .
O n l y t o t h e e x t e n t t h a t t h e p r o j e c t p a r t i c i p a n t s
a r e
u n a b l e
t o
o b t a i n
w i t h o u t
undue
h a r d s h i p
t h e s u b s t a n t i a l
e q u i v a l e n t
o f
i n f o r m a t i o n
l e a r n e d
by
W i l l i a m s
f r o m
t h i r d
p a r t i e s
d u r i n g h i s i n v e s t i g a t i o n a r e t h e y
e n t i t l e d
t o s e e
i n f o r m a t i o n
i n
W i l l i a m s ' s
f i l e s
r e l a t i n g
t o
s u c h
i n v e s t i g a t i o n .
Ex p a r t e A l a b a m a Dep't o f Y o u t h S e r v s . ,
927
So.
2d 805, 80
9 ( A l a .
2005) .
B e c a u s e i t i s a
p r a c t i c a l
i m p o s s i b i l i t y f o r
t h e p r o j e c t p a r t i c i p a n t s t o s p e c u l a t e as t o
a l l
p o s s i b l e
s o u r c e s
o f i n f o r m a t i o n and t o make
i n q u i r y o f
s u c h
s o u r c e s
as t o c o n t a c t
w i t h
W i l l i a m s , t h e o r d e r o f t h e
t r i a l
c o u r t i s
due t o be a f f i r m e d t o t h e e x t e n t
t h a t
W i l l i a m s
i s r e q u i r e d t o p r o d u c e work p r o d u c t
d e a l i n g w i t h
i n f o r m a t i o n
88
1070484; 1070487; 1070514
d e v e l o p e d
f r o m
t h i r d
p a r t i e s
w i t h
r e s p e c t
t o
t h e
a f o r e m e n t i o n e d
i n v e s t i g a t i o n .
As
t o c o m m u n i c a t i o n s b e t w e e n
W i l l i a m s
and
h i s
c l i e n t s ,
t o
t h e
e x t e n t
t h e r e
has
b e e n
any
d i s c l o s u r e
by
W i l l i a m s ,
t h e r e
i s
no
e v i d e n c e
o f
W h e e l e r / P h i l l i p s ' s
c o n s e n t
t o
any
s u c h
d i s c l o s u r e .
To
t h e
e x t e n t
t h a t
t h e
t r i a l
c o u r t ' s
o r d e r
r e q u i r e s
d i s c l o s u r e
o f
o t h e r
i n f o r m a t i o n t h a n t h a t
a l l o w e d
h e r e i n ,
t h e
t r i a l
c o u r t
e x c e e d e d i t s d i s c r e t i o n i n g r a n t i n g t h e m o t i o n t o c o m p e l as t o
t h a t i n f o r m a t i o n , and
t h e
t r i a l
c o u r t ' s o r d e r
i s r e v e r s e d
as
t o
t h a t
i n f o r m a t i o n .
I X .
C o n c l u s i o n
I n c a s e no. 1070484 and c a s e no. 1070487, we
r e v e r s e
t h e
summary j u d g m e n t
e n t e r e d
on
F e b r u a r y
22,
2006,
i n f a v o r
o f
B r i g h t ; we
a f f i r m t h e summary j u d g m e n t e n t e r e d on November
20,
2007,
i n f a v o r
o f
t h e
C i t y
as
t o
t h e
t o r t
c l a i m s
a s s e r t e d
a g a i n s t
i t , and i n f a v o r o f t h e C o u n t y , t h e C o u n t y C o m m i s s i o n ,
J o s e p h , T h o r n t o n , t h e IDB,
t h e A I F A , t h e n G o v e r n o r S i e g e l m a n ,
t h e n F i n a n c e
D i r e c t o r M a b r y , CSX
R e a l
P r o p e r t y ,
I n c . ,
E v a n s ,
H e m p h i l l ,
and H y u n d a i ; i n a l l o t h e r r e s p e c t s , we
r e v e r s e
t h a t
summary j u d g m e n t .
I n c a s e no. 1070484, we
a f f i r m i n p a r t
and
r e v e r s e i n p a r t t h e
t r i a l c o u r t ' s o r d e r g r a n t i n g t h e m o t i o n t o
c o m p e l t h e p r o d u c t i o n
o f W i l l i a m s ' s
l e g a l
f i l e ,
and we remand
t h e c a s e f o r f u r t h e r p r o c e e d i n g s
c o n s i s t e n t w i t h t h i s o p i n i o n .
89
1070484; 1 0 7 0 4 8 7 ; 1070514
I n c a s e no. 1 0 7 0 4 8 7 , we a f f i r m t h e o r d e r r e q u i r i n g
S o u t h d a l e
t o p a y t h e s p e c i a l - m a s t e r f e e . We
a l s o remand t h e c a s e f o r
f u r t h e r p r o c e e d i n g s c o n s i s t e n t w i t h t h i s o p i n i o n .
I n c a s e no.
1070514, we a f f i r m t h e summary j u d g m e n t e n t e r e d on November
20, 2007, i n f a v o r o f S t r a n g e i n h i s i n d i v i d u a l c a p a c i t y .
1 0 7 0 4 8 4 - - A P P L I C A T I O N GRANTED; OPINION OF JULY 17, 2009,
WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN
PART; AND REMANDED.
W o o d a l l ,
S t u a r t , S m i t h , B o l i n , and Shaw, J J . , c o n c u r .
M u r d o c k , J . , c o n c u r s i n p a r t ,
c o n c u r s i n t h e r e s u l t i n
p a r t , and d i s s e n t s i n p a r t .
Cobb, C . J . , r e c u s e s h e r s e l f .
1 0 7 0 4 8 7 - - A P P L I C A T I O N GRANTED; OPINION OF JULY 17, 2009,
WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN
PART; AND REMANDED.
W o o d a l l ,
S t u a r t , S m i t h , and Shaw, J J . , c o n c u r .
B o l i n , J . , c o n c u r s i n p a r t and d i s s e n t s i n p a r t .
M u r d o c k , J . , c o n c u r s i n p a r t ,
c o n c u r s i n t h e r e s u l t i n
p a r t , and d i s s e n t s i n p a r t .
Cobb, C . J . , r e c u s e s h e r s e l f .
1 0 7 0 5 1 4 - - A P P L I C A T I O N GRANTED; OPINION OF JULY 17, 2009,
WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
W o o d a l l ,
S t u a r t , S m i t h , B o l i n , and Shaw, J J . , c o n c u r .
M u r d o c k , J . , c o n c u r s i n t h e r e s u l t .
Cobb, C . J . , r e c u s e s h e r s e l f .
90
1070484; 1070487; 1070514
BOLIN, J u s t i c e
( c o n c u r r i n g
i n p a r t
and
d i s s e n t i n g i n p a r t
i n
c a s e no.
1 0 7 0 4 8 7 ) .
I c o n c u r
i n a l l a s p e c t s
o f
t h e
m a j o r i t y
o p i n i o n
e x c e p t
P a r t V I I
c o n c e r n i n g
t h e payment o f t h e
s p e c i a l - m a s t e r
f e e .
A.
Lee
M i l l e r
I I I s e r v e d
as
c h i e f o f t h e
l e g a l
d i v i s i o n
o f
t h e D e p a r t m e n t o f F i n a n c e f r o m J a n u a r y
1987
t o
S e p t e m b e r
2003.
A f t e r r e s i g n i n g f r o m t h e D e p a r t m e n t o f F i n a n c e i n 2003,
M i l l e r became " o f c o u n s e l " t o t h e l a w f i r m J e m i s o n , M e n d e l s o h n
&
James,
P.C.
("the
J e m i s o n
f i r m " ) ,
w h i c h
r e p r e s e n t e d
S o u t h d a l e , LLC,
i n t h i s
l i t i g a t i o n .
S h o r t l y
b e f o r e
t h e
t r i a l
i n
t h i s
c a s e ,
t h e
p r o j e c t
p a r t i c i p a n t s
( o t h e r
t h a n
Bobby
N.
B r i g h t ,
who
had
had
a
summary j u d g m e n t e n t e r e d
i n h i s f a v o r on
t h e b a s i s o f
S t a t e -
a g e n t
i m m u n i t y )
f i l e d
a
j o i n t
m o t i o n
t o
d i s q u a l i f y
t h e
J e m i s o n
f i r m f r o m
r e p r e s e n t i n g
S o u t h d a l e ,
a l l e g i n g t h a t
an
i m p e r m i s s i b l e
c o n f l i c t o f i n t e r e s t e x i s t e d b e c a u s e i t a p p e a r e d
t h a t M i l l e r had
p r o v i d e d
l e g a l a d v i c e
r e g a r d i n g
t h e
p u r c h a s e
o f
J o y
S h e l t o n ' s
p r o p e r t y
d u r i n g
h i s
e m p l o y m e n t
w i t h
t h e
D e p a r t m e n t o f F i n a n c e .
The
p r o j e c t p a r t i c i p a n t s a l s o
s o u g h t
t o
d i s q u a l i f y
t h e
l a w
f i r m
o f
S p a i n
&
G i l l o n ,
LLC,
f r o m
r e p r e s e n t i n g
W h e e l e r / P h i l l i p s b e c a u s e
t h e
a t t o r n e y s
i n
t h a t
f i r m
had
a l l e g e d l y w o r k e d
c l o s e l y w i t h
M i l l e r
and
b e c a u s e
M i l l e r
had
f u r n i s h e d d o c u m e n t s
t o them w h i l e
he
was
a t
t h e
J e m i s o n
f i r m .
The
p r o j e c t p a r t i c i p a n t s a l s o a s k e d t h a t
t h e
91
1070484; 1070487; 1070514
p l a i n t i f f s '
c l a i m s a g a i n s t them be d i s m i s s e d as a s a n c t i o n
f o r
t h e v i o l a t i o n o f t h e
A l a b a m a R u l e s o f P r o f e s s i o n a l C o n d u c t i n
r e l a t i o n t o M i l l e r ' s p a r t i c i p a t i o n i n
t h e l i t i g a t i o n .
I n
t h e
a l t e r n a t i v e , t h e p r o j e c t p a r t i c i p a n t s a s k e d
t h a t any a n d
a l l
r e c o r d s o r f i l e s o f t h e p l a i n t i f f s '
a t t o r n e y s be
s e q u e s t e r e d
and r e v i e w e d by a s p e c i a l m a s t e r b e f o r e t h e y c o u l d be r e v i e w e d
by any new c o u n s e l h i r e d by t h e p l a i n t i f f s .
F o l l o w i n g
two h e a r i n g s ,
t h e
t r i a l
c o u r t
g r a n t e d t h e
m o t i o n t o d i s q u a l i f y b o t h S o u t h d a l e ' s a n d W h e e l e r / P h i l l i p s ' s
c o u n s e l
a n d
a p p o i n t e d
a
s p e c i a l
m a s t e r
" t o o v e r s e e
t h e
t r a n s f e r
o f
f i l e s
a n d
o t h e r
m a t e r i a l s
f r o m
d i s q u a l i f i e d
c o u n s e l t o r e p l a c e m e n t
c o u n s e l f o r t h e P l a i n t i f f s
i n t h i s
c a s e . "
W h e e l e r / P h i l l i p s f i l e d
a
p e t i t i o n
f o r a
w r i t o f
mandamus w i t h
t h i s
C o u r t ,
r e q u e s t i n g an o r d e r
d i r e c t i n g t h e
t r i a l c o u r t t o v a c a t e i t s o r d e r d i s q u a l i f y i n g S p a i n & G i l l o n .
On
May
18,
2007,
t h i s
C o u r t
g r a n t e d W h e e l e r / P h i l l i p s ' s
p e t i t i o n a n d i s s u e d t h e w r i t .
Ex p a r t e W h e e l e r , 978 So. 2d 1
( A l a .
2 0 0 7 ) .
S o u t h d a l e d i d
n o t s e e k mandamus r e v i e w , a n d i t
o b t a i n e d
new
c o u n s e l .
The
c a s e
t h e n
p r o c e e d e d .
I t i s
u n d i s p u t e d t h a t i n
r e v i e w i n g t h e
d o c u m e n t s , t h e s p e c i a l m a s t e r
f o u n d
t h a t no m a t e r i a l s o r i n f o r m a t i o n h a d b e e n a c q u i r e d b y
t h e J e m i s o n
f i r m b e c a u s e o f M i l l e r ' s
e m p l o y m e n t .
92
1070484; 1070487; 1070514
On
November
2,
2007,
t h e
t r i a l
c o u r t
e n t e r e d
an
o r d e r
r e q u i r i n g ,
among
o t h e r
t h i n g s ,
t h a t
S o u t h d a l e
and
W h e e l e r / P h i l l i p s
pay
t h e
s p e c i a l
m a s t e r
$ 2 8 , 1 9 8 . 7 4 .
On
November 13, 2007, W h e e l e r / P h i l l i p s
f i l e d
a m o t i o n t o
a l t e r ,
amend, o r v a c a t e
t h e November
2,
2007,
o r d e r
r e g a r d i n g
t h e
s p e c i a l - m a s t e r
f e e on t h e g r o u n d t h a t t h e
t r i a l
c o u r t ' s
o r d e r
a p p o i n t i n g
a s p e c i a l m a s t e r was
f o r t h e " p u r p o s e o f
o v e r s e e i n g
' t h e
o r d e r l y
t r a n s f e r o f
d i s c o v e r y
and
o t h e r
m a t e r i a l s
f r o m
d i s q u a l i f i e d
c o u n s e l ,
h e r e i n a f t e r
" f o r m e r
c o u n s e l , "
t o
r e p l a c e m e n t
c o u n s e l
f o r
t h e
P l a i n t i f f s
i n
t h i s
c a s e . ' "
W h e e l e r / P h i l l i p s a r g u e d t h a t b e c a u s e t h e o r d e r
a p p o i n t i n g
t h e
s p e c i a l m a s t e r e x i s t e d o n l y t o f a c i l i t a t e
t h e
d i s q u a l i f i c a t i o n
o r d e r ,
and
b e c a u s e
t h i s
C o u r t
g r a n t e d
W h e e l e r / P h i l l i p s ' s
p e t i t i o n
and
i s s u e d
t h e
w r i t
v a c a t i n g
t h e
t r i a l
c o u r t ' s
d i s q u a l i f i c a t i o n o r d e r
as t o i t s l a w
f i r m , t h e
s p e c i a l m a s t e r
r e v i e w e d no d o c u m e n t s f r o m W h e e l e r / P h i l l i p s ' s
c o u n s e l .
On
November
20,
2007,
t h e
t r i a l
c o u r t
amended
i t s
o r d e r
t o
r e q u i r e S o u t h d a l e t o pay
a l l t h e
s p e c i a l - m a s t e r
f e e .
I b e l i e v e t h a t t h e
t r i a l
c o u r t ' s
o r d e r
i s u n j u s t l y h a r s h
and
t h a t
i n
e n t e r i n g
i t
t h e
t r i a l
c o u r t
e x c e e d e d
i t s
d i s c r e t i o n ,
g i v e n
t h a t
t h e
p r o j e c t
p a r t i c i p a n t s '
m o t i o n
t o
d i s q u a l i f y
and
t o a p p o i n t
a s p e c i a l m a s t e r was
f i l e d
on
t h e
eve
o f
t r i a l when t h e c a s e had b e e n p e n d i n g f o r two
y e a r s
and
93
1070484; 1070487; 1070514
s u b s t a n t i a l d i s c o v e r y h a d a l r e a d y o c c u r r e d . A l s o , t h e J e m i s o n
f i r m a r g u e d a t t h e h e a r i n g on t h e m o t i o n t o d i s q u a l i f y t h a t no
d o c u m e n t s
h a d
b e e n
a c q u i r e d
b e c a u s e
o f
M i l l e r ' s
p r e v i o u s
e m p l o y m e n t w i t h t h e D e p a r t m e n t
o f F i n a n c e , and,
i n d e e d , t h e
s p e c i a l
m a s t e r
f o u n d
t h a t
no
s u c h
d o c u m e n t s
were
f o u n d .
A d d i t i o n a l l y ,
c o u n s e l
f o r
a t
l e a s t
one
o f
t h e
p r o j e c t
p a r t i c i p a n t s
knew
o f
M i l l e r ' s
p r e v i o u s employment
a
y e a r
b e f o r e
t h e
j o i n t
m o t i o n
was
f i l e d .
I
r e c o g n i z e t h a t
t h e
d e f e r e n c e
t o w h i c h
a
t r i a l
j u d g e ' s
d e c i s i o n
i s e n t i t l e d i n
a w a r d i n g
s p e c i a l - m a s t e r
f e e s
i m p o s e s
a
h e a v y
b u r d e n
t o
o v e r c o m e .
However, I b e l i e v e t h e
t r i a l
c o u r t h e r e
e x c e e d e d
i t s
d i s c r e t i o n
i n r e q u i r i n g
S o u t h d a l e
t o p a y
t h e
s p e c i a l -
m a s t e r f e e i n i t s e n t i r e t y .
94
1070484; 1070487; 1070514
MURDOCK, J u s t i c e ( c o n c u r r i n g i n p a r t , c o n c u r r i n g i n
t h e r e s u l t
i n
p a r t , and d i s s e n t i n g i n p a r t i n c a s e no. 1070484 and c a s e
no.
1 0 7 0 4 8 7 ,
and
c o n c u r r i n g
i n t h e
r e s u l t
i n c a s e
no.
1 0 7 0 5 1 4 ) .
I n
s p e c i a l w r i t i n g s i n P a v i l i o n
D e v e l o p m e n t ,
L.L.C. v.
J B J P a r t n e r s h i p , 979 So. 2d 24, 37-45 ( S e e , J . ,
and M u r d o c k ,
J . ,
c o n c u r r i n g
s p e c i a l l y ) ,
J u s t i c e See and I e x p r e s s e d o u r
d i s a g r e e m e n t w i t h t h e p o s i t i o n t a k e n by J u s t i c e L y o n s i n h i s
d i s s e n t i n g
o p i n i o n i n t h a t c a s e , 979 So. 2d a t 45-47,
t h a t
t h i s C o u r t s h o u l d h o l d an a r g u m e n t w a i v e d when an a p p e l l a n t ' s
p r i n c i p a l
b r i e f
f a i l s t o a d d r e s s an a r g u m e n t u r g e d upon t h e
t r i a l
c o u r t b y t h e a p p e l l e e b u t n o t r e l i e d upon b y t h e
t r i a l
c o u r t i n r u l i n g i n f a v o r o f t h e a p p e l l e e .
P a v i l i o n was a c a s e
i n
w h i c h
t h e
b a s i s
o f
t h e
t r i a l
c o u r t ' s
j u d g m e n t
was
d i s c e r n i b l e
f r o m t h e r e c o r d .
I n t h a t
c o n t e x t ,
I r e a s o n e d
t h a t , a l t h o u g h an a p p e l l a t e c o u r t may a f f i r m a t r i a l
c o u r t ' s
j u d g m e n t
on
"any
v a l i d
l e g a l
g r o u n d , "
we
" s h o u l d [ n o t ]
t r a n s f o r m
a r u l e
d e s i g n e d t o a l l o w
an a p p e l l a t e
c o u r t t o
a f f i r m a l o w e r c o u r t ' s j u d g m e n t on any g r o u n d d e t e r m i n e d t o be
v a l i d
i n t o a r u l e t h a t r e q u i r e s an a p p e l l a t e c o u r t t o a f f i r m
a l o w e r c o u r t ' s j u d g m e n t on any g r o u n d , w i t h o u t r e g a r d f o r t h e
v a l i d i t y o f t h e g r o u n d ,
m e r e l y so l o n g as t h a t
g r o u n d
was
r a i s e d i n t h e t r i a l
c o u r t by t h e p r e v a i l i n g p a r t y and was n o t
a d d r e s s e d by t h e a p p e l l a n t on a p p e a l . "
979 So. 2d a t 42 (some
e m p h a s i s
o m i t t e d ) .
I a l s o s u g g e s t e d t h a t t h e same c o n c e r n s
95
1070484; 1070487; 1070514
s h o u l d a p p l y e v e n when t h e g r o u n d f o r
t h e t r i a l c o u r t ' s r u l i n g
i s
n o t
d i s c e r n i b l e
f r o m
t h e
t r i a l
c o u r t ' s
j u d g m e n t
o r
o t h e r w i s e
f r o m
t h e r e c o r d .
I d .
( d i s c u s s i n g ,
among
o t h e r
t h i n g s , t h e n e e d t o l i m i t
t h i s C o u r t ' s h o l d i n g i n F o g a r t y v .
S o u t h w o r t h ,
953 So. 2d 1225 ( A l a . 2 0 0 6 ) ) .
I n t h e p r e s e n t c a s e , e v e n a c c e p t i n g t h e v i e w t a k e n i n
t h e
m a i n o p i n i o n t h a t i t i s n o t d i s c e r n i b l e
f r o m t h e r e c o r d and
f r o m t h e t r i a l
c o u r t ' s j u d g m e n t t h a t t h e t r i a l
c o u r t d i d
n o t
b a s e i t s
summary j u d g m e n t i n f a v o r o f S t r a n g e on a
f i n d i n g
t h a t t h e F e b r u a r y 22, 2 0 0 5 ,
s u b s t i t u t i o n
o f S t r a n g e f o r a
p r e v i o u s l y d e s c r i b e d f i c t i t i o u s l y named p a r t y d i d n o t r e l a t e
b a c k u n d e r R u l e s 9 and 15, A l a .
R. C i v .
P., t o t h e f i l i n g o f
t h e
o r i g i n a l
c o m p l a i n t , I w r i t e t o e x p r e s s my
d i s a g r e e m e n t
w i t h t h e u s e o f a w a i v e r r u l e e m p l o y e d by t h e m a i n
o p i n i o n .
My
d i s a g r e e m e n t
b e g i n s
w i t h
t h e
r e c o g n i t i o n
o f t h e
p r i n c i p l e t h a t "an a p p e l l a t e c o u r t w i l l n o t p r e s u m e e r r o r and
w i l l
a f f i r m t h e j u d g m e n t a p p e a l e d
f r o m i f s u p p o r t e d on any
v a l i d l e g a l g r o u n d . "
T u c k e r v. N i c h o l s , 431 So. 2d 1263, 1265
( A l a .
1 9 8 3 ) .
A c o r o l l a r y t o t h i s
r u l e i s t h a t we do p r e s u m e
t h a t t h e t r i a l c o u r t made t h o s e f i n d i n g s n e c e s s a r y t o s u p p o r t
i t s j u d g m e n t .
See, e . g . , Ex p a r t e B r y o w s k y , 676 So. 2d 1322,
1324
( A l a . 1 9 9 6 ) .
96
1070484; 1070487; 1070514
These two r u l e s , i n t u r n , p r o v i d e
c o n t e x t
f o r a p p l i c a t i o n
o f
t h e
" l o n g - s t a n d i n g ,
w e l l - e s t a b l i s h e d
r u l e
t h a t
t h e
a p p e l l a n t
has
an
a f f i r m a t i v e d u t y o f s h o w i n g
e r r o r upon t h e
r e c o r d . "
T u c k e r , 431 So. 2d a t 1264.
Where i t i s d i s c e r n i b l e
f r o m t h e j u d g m e n t
and
t h e r e m a i n d e r o f t h e
r e c o r d
t h a t
t h e
t r i a l
c o u r t may
w e l l h a v e b a s e d i t s j u d g m e n t
on a
p a r t i c u l a r
g r o u n d
and
t h a t
g r o u n d
i s n o t
c o n t e s t e d
i n t h e
a p p e l l a n t ' s
b r i e f ,
t h e n I c a n a c c e p t t h e n o t i o n
t h a t
t h e
a p p e l l a n t
has
f a i l e d
t o meet
i t s b u r d e n
o f s h o w i n g
t h a t
t h e
t r i a l
c o u r t
e r r e d .
F o r
t h i s
f a i l u r e
t o
o c c u r
c o n s i s t e n t
w i t h
t h e
p r i n c i p l e s q u o t e d a b o v e , h o w e v e r ,
t h e g r o u n d must be one
t h a t ,
f o r
a l l
t h a t a p p e a r s f r o m t h e r e c o r d , t h e t r i a l
c o u r t may
h a v e
a c t u a l l y and p r o p e r l y
r e l i e d u p o n .
T h i s means n o t o n l y
t h a t
t h e g r o u n d a t i s s u e was p r e s e n t e d t o t h e
t r i a l
c o u r t and
t h a t
i t
i s n o t
d i s c e r n i b l e f r o m t h e
r e c o r d
t h a t
t h e
t r i a l
c o u r t
b a s e d
i t s j u d g m e n t
on some o t h e r
g r o u n d ,
b u t
a l s o
t h a t
t h e
g r o u n d
i s v a l i d
l e g a l l y
and,
t o
t h e
e x t e n t
t h e
g r o u n d
i s
d e p e n d e n t on f a c t u a l f i n d i n g s , t h e f a c t u a l r e c o r d i s s u c h t h a t
t h e
t r i a l
c o u r t
c o u l d
h a v e made t h o s e
f i n d i n g s .
I f t h e s e
a t t r i b u t e s a r e n o t p r e s e n t ,
t h e n t h e a b o v e - q u o t e d p r i n c i p l e s
do n o t a l l o w us t o i m p u t e s u c h a g r o u n d t o t h e
t r i a l
c o u r t ,
and,
t h e r e f o r e ,
a
f a i l u r e
by
an
a p p e l l a n t
t o
a d d r e s s
t h e
97
1070484; 1070487; 1070514
g r o u n d d o e s n o t
l o g i c a l l y c o n s t i t u t e a f a i l u r e t o d e m o n s t r a t e
an e r r o r by
t h e
t r i a l
c o u r t .
1
2
N o t w i t h s t a n d i n g
t h e
a b o v e - d e s c r i b e d
o b j e c t i o n
t o
t h e
w a i v e r
r u l e e m p l o y e d by
t h e m a i n o p i n i o n
as
t o
S t r a n g e ,
f o r
t h e r e a s o n s e x p l a i n e d b e l o w I c o n c u r i n t h e
r e s u l t r e a c h e d
by
t h e m a i n o p i n i o n as t o t h e a f f i r m a n c e
o f t h e summary j u d g m e n t
i n
h i s f a v o r .
F o r t h e same r e a s o n s ,
I d i s s e n t as t o t h e m a i n
o p i n i o n ' s
r e v e r s a l i n some r e s p e c t s
o f t h e summary j u d g m e n t s
e n t e r e d
i n f a v o r o f c e r t a i n o t h e r
d e f e n d a n t s .
I n McLemore v. H y u n d a i M o t o r M a n u f a c t u r i n g
A l a b a m a ,
LLC,
7 So.
3d 318,
339
( A l a . 2008) ( M u r d o c k , J . , c o n c u r r i n g i n p a r t
and
d i s s e n t i n g i n p a r t ) ,
I r e a c h e d
t h e
c o n c l u s i o n
t h a t
t h e
2002
amendment
t o
t h e
o p t i o n
a g r e e m e n t
b e t w e e n
t h e
g o v e r n m e n t a l e n t i t i e s and
t h e R u s s e l l s s e t t h e p u r c h a s e p r i c e
f o r
t h e
R u s s e l l s ' l a n d a t a f i x e d amount o f $4,500 p e r
a c r e .
I n
t h e
p r e s e n t
c a s e ,
t h e
2002
amendments
t o
t h e
o p t i o n
a g r e e m e n t s
b e t w e e n
t h e
g o v e r n m e n t a l
e n t i t i e s
and
t h e
1 2 I n a d d i t i o n , as
I s u g g e s t e d i n P a v i l i o n ,
a w a i v e r
r u l e
o f t h e n a t u r e e m p l o y e d by t h e m a i n o p i n i o n t o d a y g i v e s a p a r t y
some i n c e n t i v e t o " s p r e a d " upon t h e r e c o r d o f t h e
t r i a l
c o u r t
a
m u l t i t u d e
o f
v a r i o u s
a r g u m e n t s ,
e v e n
t h o s e
known
t o
be
w i t h o u t
m e r i t ,
i n t h e hope
t h a t ,
i f t h e
p a r t y
p r e v a i l s
a t
t r i a l ,
an
a p p e l l a n t
w i l l
f a i l
t o a d d r e s s a l l o f them i n i t s
i n i t i a l
a p p e l l a t e
b r i e f .
C o n c o m i t a n t l y ,
i t
f o r c e s
a l l
a p p e l l a n t s
t o
s p e n d
t i m e
and
money
a d d r e s s i n g
i n
t h e i r
p r i n c i p a l a p p e l l a t e b r i e f a r g u m e n t s t h a t c o u l d n o t have
s e r v e d
as t h e b a s i s f o r t h e
r u l i n g a g a i n s t them i n t h e c o u r t b e l o w .
98
1070484; 1070487;
1070514
l a n d o w n e r s c o n t a i n e d
t h e same a m e n d a t o r y l a n g u a g e as d i d t h e
2002
amendment
t o
t h e
a g r e e m e n t
b e t w e e n
t h e g o v e r n m e n t a l
e n t i t i e s
and
t h e
R u s s e l l s
i n McLemore.
A c c o r d i n g l y ,
I
r e s p e c t f u l l y d i s s e n t t o t h e e x t e n t t h e m a i n o p i n i o n
r e v e r s e s
t h e
summary j u d g m e n t
e n t e r e d
by t h e
t r i a l
c o u r t
as t o t h e
b r e a c h - o f - c o n t r a c t
c l a i m s and, by e x t e n s i o n ,
any t o r t
c l a i m s
d e p e n d e n t
f o r
t h e i r
v i a b i l i t y
on
t h e
n o t i o n
t h a t
t h e
l a n d o w n e r s were
c o n t r a c t u a l l y e n t i t l e d
t o r e c e i v e more
t h a n
$4,500 p e r a c r e f o r t h e i r
l a n d .
I c o n c u r i n P a r t s V I I and V I I I o f t h e m a i n
o p i n i o n .
99 | December 4, 2009 |
2c90fba9-2181-4959-9cbe-93aa432ea49f | CNH America, LLC v. Tammy Roebuck | N/A | 1080261 | Alabama | Alabama Supreme Court | REL: 10/23/2009
Notice:
T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e
Reporter of Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741
((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may
be
made b e f o r e
t h e o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1080261
CNH America, LLC
v.
Tammy Roebuck
Appeal from M a r s h a l l C i r c u i t
Court
(CV-05-200273)
STUART,
J u s t i c e .
Tammy R o e b u c k
s u e d CNH A m e r i c a , LLC ("CNH"), i n t h e
M a r s h a l l C i r c u i t C o u r t s e e k i n g damages f o r
t h e w r o n g f u l
d e a t h
o f h e r
h u s b a n d , C h r i s R o e b u c k , who was k i l l e d i n
an a c c i d e n t
i n v o l v i n g a b a c k h o e m a n u f a c t u r e d b y
CNH. A t
t h e c o n c l u s i o n o f
1080261
a j u r y
t r i a l , t h e j u r y r e t u r n e d a v e r d i c t i n f a v o r o f CNH;
h o w e v e r , on R o e b u c k ' s m o t i o n , t h e t r i a l
c o u r t
s u b s e q u e n t l y
o r d e r e d a new
t r i a l on t h e g r o u n d o f j u r o r m i s c o n d u c t .
CNH
a p p e a l s ,
a r g u i n g t h a t t h e t r i a l
c o u r t e x c e e d e d i t s d i s c r e t i o n
i n o r d e r i n g a new t r i a l o r ,
i n
t h e a l t e r n a t i v e , t h a t t h e t r i a l
c o u r t e r r e d b y d e n y i n g i t s m o t i o n f o r
a j u d g m e n t as a m a t t e r
o f l a w .
B e c a u s e we c o n c l u d e
t h a t t h e t r i a l
c o u r t
e r r e d i n
d e n y i n g CNH's j u d g m e n t as a m a t t e r o f l a w , we
r e v e r s e a n d
remand.
I .
On A p r i l 9, 2005, C h r i s R o e b u c k a n d h i s b r o t h e r ,
Shane
R o e b u c k , were h e l p i n g t h e i r f a t h e r , C a r l R o e b u c k , u s e a 580SK
l o a d e r b a c k h o e m a n u f a c t u r e d b y C a s e C o r p o r a t i o n , a
p r e d e c e s s o r
t o CNH, t o move a l a r g e f e e d b i n on C a r l ' s f a r m i n M a r s h a l l
C o u n t y .
1
B e c a u s e
t h e y were h a v i n g
d i f f i c u l t y
a t t a c h i n g t h e
f e e d b i n
t o t h e b u c k e t o f t h e b a c k h o e , C h r i s
l e f t t o p r o c u r e
a
l a r g e r c h a i n t o u s e i n t h e e f f o r t .
W h i l e he was gone,
h o w e v e r ,
C a r l a n d Shane u s e d a d i f f e r e n t
c h a i n t o d r a g t h e
1The
580SK i s
a m u l t i - u s e p i e c e o f c o n s t r u c t i o n e q u i p m e n t
w i t h a l o a d e r on t h e f r o n t e n d a n d a b a c k h o e on t h e r e a r e n d .
The
o p e r a t o r ' s
s e a t
s w i v e l s 180 d e g r e e s so t h a t t h e o p e r a t o r
can
f a c e e i t h e r t h e l o a d e r o r t h e b a c k h o e , d e p e n d i n g on w h i c h
i s b e i n g
u s e d .
2
1080261
f e e d b i n
t o t h e d e s i r e d l o c a t i o n .
They t h e n r e t u r n e d w i t h t h e
b a c k h o e t o t h e o r i g i n a l w o r k
s i t e .
When
C h r i s
r e t u r n e d
w i t h
t h e l a r g e r
c h a i n ,
C a r l was
s i t t i n g i n
t h e o p e r a t o r ' s
s e a t o f t h e i d l i n g 580SK f a c i n g t h e
f r o n t l o a d e r e n d . C h r i s a p p r o a c h e d t h e
580SK f r o m t h e b a c k h o e
end a n d p r o c e e d e d t o t o s s an a p p r o x i m a t e l y
12-pound c h a i n
i n t o
t h e
o p e r a t o r ' s
c a b . When t h e c h a i n
l a n d e d
i n t h e c a b , i t
l a n d e d on t o p
o f one o f t h e f o o t - s w i n g p e d a l s f o r
t h e b a c k h o e ,
c a u s i n g t h e
boom on t h e
b a c k h o e t o s w i n g t o t h e s i d e , p i n n i n g
C h r i s b e t w e e n t h e boom a n d a s t a b i l i z e r
p o s t on t h e s i d e o f
t h e 580SK.
Shane q u i c k l y c l i m b e d a b o a r d t h e
580SK a n d p r e s s e d
t h e o t h e r
f o o t - s w i n g
p e d a l t o f r e e C h r i s ; h o w e v e r , C h r i s h a d
a l r e a d y s u f f e r e d s e v e r e
i n t e r n a l i n j u r i e s , a n d
he d i e d s e v e r a l
h o u r s
l a t e r
a t t h e
U n i v e r s i t y
o f A l a b a m a
H o s p i t a l i n
B i r m i n g h a m , where he h a d b e e n t r a n s p o r t e d v i a
a i r a m b u l a n c e
a f t e r
i n i t i a l l y
b e i n g
t r e a t e d a t M a r s h a l l M e d i c a l
C e n t e r i n
B o a z .
On December 20, 2005, Tammy
R o e b u c k
s u e d CNH i n
t h e
M a r s h a l l
C i r c u i t
C o u r t ,
a s s e r t i n g
c l a i m s
o f
b r e a c h
o f
w a r r a n t y ,
d e f e c t i v e
d e s i g n
u n d e r
t h e A l a b a m a
E x t e n d e d
M a n u f a c t u r e r ' s
L i a b i l i t y
D o c t r i n e
("AEMLD"), a n d
g e n e r a l
3
1080261
n e g l i g e n c e ,
i n c l u d i n g f a i l u r e t o w a r n and p o s t - s a l e
n e g l i g e n c e
f o r
f a i l i n g
t o
w a r n ,
r e c a l l ,
o r
r e t r o f i t
t h e
580SK
i n
q u e s t i o n .
The
c a s e p r o c e e d e d t o
t r i a l
on J u n e 9, 2008.
CNH
moved
f o r
a j u d g m e n t
as
a m a t t e r
o f
l a w
a f t e r R o e b u c k
had
s u b m i t t e d
h e r
e v i d e n c e
and
a g a i n
a t
t h e
c l o s e
o f
a l l
t h e
e v i d e n c e , a r g u i n g , among o t h e r
t h i n g s , t h a t R o e b u c k ' s b r e a c h -
o f - w a r r a n t y
c l a i m
was
b a r r e d
by
t h e
a p p l i c a b l e
s t a t u t e
o f
l i m i t a t i o n s
and
t h a t h e r
v a r i o u s
t o r t
c l a i m s
f a i l e d
b e c a u s e ,
CNH
a r g u e d , R o e b u c k had
f a i l e d
t o
e s t a b l i s h t h a t
t h e
580SK
C a r l owned was
i n s u b s t a n t i a l l y t h e same c o n d i t i o n when C h r i s
was
k i l l e d
as
i t was when i t was
m a n u f a c t u r e d .
I n f a c t ,
CNH
a r g u e d ,
t h e
e v i d e n c e
e s t a b l i s h e d
t h a t
t h e
580SK
had
b e e n
s u b s t a n t i a l l y m o d i f i e d
a f t e r l e a v i n g CNH's c o n t r o l -- t h e h a n d
c o n t r o l s
on
t h e
b a c k h o e
had
b e e n c h a n g e d
t o
f o o t
c o n t r o l s ,
and,
CNH
a r g u e d , t h a t m o d i f i c a t i o n was
t h e p r o x i m a t e c a u s e
o f
C h r i s ' s
i n j u r i e s and d e a t h , n o t
any
n e g l i g e n c e
o r e r r o r s
t h a t
m i g h t be
a t t r i b u t a b l e t o CNH.
The
t r i a l
c o u r t d e n i e d b o t h
o f
CNH's m o t i o n s r e q u e s t i n g
a j u d g m e n t as
a m a t t e r o f
l a w .
On J u n e 20, 2008, t h e j u r y r e t u r n e d
a v e r d i c t i n f a v o r
o f
CNH.
On J u l y 21, 2008, R o e b u c k moved f o r a new
t r i a l ,
a r g u i n g
t h a t
two
j u r o r s
had
f a i l e d
t o
d i s c l o s e
on
t h e i r
j u r y
4
1080261
q u e s t i o n n a i r e s
t h a t
t h e y h a d
p r e v i o u s l y b e e n d e f e n d a n t s
i n
l a w s u i t s
s e e k i n g money damages
and
t h a t ,
h a d
t h o s e
j u r o r s
a n s w e r e d
t h e q u e s t i o n n a i r e
t r u t h f u l l y ,
she w o u l d have
s t r u c k
them f r o m t h e j u r y p a n e l .
R o e b u c k s u b s e q u e n t l y amended h e r
m o t i o n
t o
a l l e g e
t h a t ,
d u r i n g
j u r y
d e l i b e r a t i o n s ,
a
t h i r d
j u r o r
h a d
r e c e i v e d
a t e l e p h o n e
c a l l
f r o m
an unknown
p a r t y
c o n v e y i n g
i n f o r m a t i o n
a b o u t
t h e
c a s e
t h a t
h a d
n o t
b e e n
i n t r o d u c e d d u r i n g t h e
t r i a l .
On O c t o b e r 15, 2008, t h e
t r i a l
c o u r t g r a n t e d R o e b u c k ' s m o t i o n and o r d e r e d a new
t r i a l
b a s e d
on t h e e v i d e n c e o f
j u r o r m i s c o n d u c t .
CNH
t h e n r e n e w e d i t s
m o t i o n f o r a j u d g m e n t as a m a t t e r o f l a w ; h o w e v e r , t h e
t r i a l
c o u r t d e n i e d t h a t m o t i o n on November 20, 2008.
CNH
a p p e a l e d .
I I .
On a p p e a l , CNH
a r g u e s t h a t t h e
t r i a l
c o u r t e x c e e d e d i t s
d i s c r e t i o n
i n o r d e r i n g
a new
t r i a l
o r , i n t h e
a l t e r n a t i v e ,
t h a t
t h e
t r i a l
c o u r t
e r r e d
b y
d e n y i n g
i t s m o t i o n
f o r
a
j u d g m e n t as a m a t t e r o f l a w .
T h i s C o u r t o u t l i n e d t h e s t a n d a r d
o f
r e v i e w a p p l i c a b l e as t o e a c h o f t h e s e a r g u m e n t s
i n A l a b a m a
D e p a r t m e n t
o f T r a n s p o r t a t i o n v. L a n d E n e r g y , L t d . , 886 So. 2d
787, 791-92 ( A l a . 2 0 0 4 ) :
"'When r e v i e w i n g a r u l i n g on a m o t i o n
f o r
a [ j u d g m e n t
as a m a t t e r o f l a w ] ,
t h i s
5
1080261
C o u r t
u s e s
t h e
same
s t a n d a r d
t h e
t r i a l
c o u r t u s e d
i n i t i a l l y i n g r a n t i n g o r d e n y i n g
t h e
m o t i o n .
P a l m
H a r b o r
Homes,
I n c .
v.
C r a w f o r d ,
689
So.
2d
3
( A l a .
1 9 9 7 ) .
R e g a r d i n g
q u e s t i o n s o f
f a c t ,
t h e
u l t i m a t e
i s s u e
i s
w h e t h e r
t h e
nonmovant
has
p r e s e n t e d s u f f i c i e n t e v i d e n c e t o a l l o w t h e
c a s e o r i s s u e t o be s u b m i t t e d t o t h e
j u r y
f o r
a
f a c t u a l
r e s o l u t i o n .
C a r t e r
v.
H e n d e r s o n , 598 So. 2d 1350
( A l a . 1 9 9 2 ) .
I n
an
a c t i o n
f i l e d
a f t e r
J u n e
11,
1987,
t h e
nonmovant must p r e s e n t s u b s t a n t i a l e v i d e n c e
t o
w i t h s t a n d a
[ j u d g m e n t
as
a m a t t e r
o f
l a w ] .
See § 1 2 - 2 1 - 1 2 , A l a . Code 1975; West
v. F o u n d e r s
L i f e A s s u r a n c e Co. o f
F l o r i d a ,
547
So.
2d
870,
871
( A l a .
1 9 8 9 ) .
A
r e v i e w i n g c o u r t must d e t e r m i n e w h e t h e r t h e
p a r t y
who
b e a r s
t h e
b u r d e n
o f p r o o f
has
p r o d u c e d
s u b s t a n t i a l
e v i d e n c e
c r e a t i n g
a
f a c t u a l d i s p u t e r e q u i r i n g r e s o l u t i o n by t h e
j u r y .
C a r t e r ,
598
So.
2d
a t
1353.
I n
r e v i e w i n g
a
r u l i n g
on
a
m o t i o n
f o r
a
[ j u d g m e n t
as a m a t t e r o f l a w ] , t h i s
C o u r t
v i e w s
t h e
e v i d e n c e
i n
t h e
l i g h t
most
f a v o r a b l e t o t h e nonmovant and
e n t e r t a i n s
s u c h
r e a s o n a b l e
i n f e r e n c e s as
t h e
j u r y
w o u l d have b e e n f r e e t o draw.
I d .
I f t h e
q u e s t i o n i s one o f l a w , t h i s C o u r t i n d u l g e s
no
p r e s u m p t i o n
o f
c o r r e c t n e s s as
t o
t h e
t r i a l c o u r t ' s r u l i n g .
R i c w i l , I n c . v.
S.L.
P a p p a s & Co.,
599 So. 2d 1126
( A l a . 1 9 9 2 ) . '
"Ex p a r t e A l f a Mut.
F i r e I n s . Co.,
742
So. 2d
1237,
1240
( A l a . 1 9 9 9 ) .
" ' [ T ] h e r u l i n g on a m o t i o n f o r new
t r i a l i s
w i t h i n t h e d i s c r e t i o n o f t h e t r i a l
c o u r t [ , ]
and
... t h e
t r i a l c o u r t ' s d e c i s i o n
c a r r i e s
a s t r o n g p r e s u m p t i o n o f c o r r e c t n e s s .
G o l d
K i s t , I n c . v. T e d d e r ,
580 So. 2d 1321,
1322
( A l a .
1991) .
The
d e c i s i o n
o f
t h e
t r i a l
c o u r t
s h o u l d
n o t
be
d i s t u r b e d
on
a p p e a l
6
1080261
u n l e s s
t h e
r e c o r d
p l a i n l y
and
p a l p a b l y
shows t h a t t h e t r i a l
c o u r t
e r r e d and t h a t
some l e g a l
r i g h t h a s b e e n a b u s e d . '
" M c B r i d e v. S h e p p a r d , 624 So. 2d 1069, 1070-71
( A l a .
19 9 3 ) . "
I I I .
We
f i r s t
c o n s i d e r CNH's a r g u m e n t t h a t i t
was e n t i t l e d t o
a j u d g m e n t as a m a t t e r o f l a w on a l l t h e c l a i m s
a s s e r t e d b y
R o e b u c k .
W i t h r e g a r d t o R o e b u c k ' s b r e a c h - o f - w a r r a n t y
c l a i m ,
CNH a r g u e s
t h a t
t h a t
c l a i m i s b a r r e d b y § 7 - 2 - 7 2 5 ( 1 ) , A l a .
Code 1975, w h i c h p r o v i d e s
t h a t " [ a ] n a c t i o n f o r
b r e a c h o f a n y
c o n t r a c t f o r s a l e must be commenced w i t h i n
f o u r
y e a r s
a f t e r
t h e c a u s e o f a c t i o n h a s a c c r u e d . "
S e c t i o n 7 - 2 - 7 2 5 ( 2 )
f u r t h e r
p r o v i d e s
t h a t " [ a ] c a u s e o f a c t i o n
a c c r u e s when t h e b r e a c h
o c c u r s "
and " [ a ] b r e a c h o f w a r r a n t y
o c c u r s when t e n d e r o f
d e l i v e r y i s made
"
B e c a u s e
C a r l
t o o k
d e l i v e r y o f h i s
580SK on J u l y 26, 1993, CNH a r g u e s t h a t a n y b r e a c h o f w a r r a n t y
t h a t o c c u r r e d w o u l d have o c c u r r e d on t h a t d a t e , a n d a n y c l a i m
b a s e d upon
t h a t
b r e a c h
s h o u l d
h a v e b e e n b r o u g h t
w i t h i n t h e
n e x t
f o u r
y e a r s ,
o r b y J u l y 26, 1997.
R o e b u c k ' s
c l a i m i s
c l e a r l y
o u t s i d e
t h a t
p e r i o d ;
t h e r e f o r e ,
CNH
a r g u e s , i t
i s
t i m e - b a r r e d .
7
1080261
However, R o e b u c k a r g u e s t h a t h e r
a c t i o n
f a l l s
w i t h i n
an
e x c e p t i o n
i n § 7 - 2 - 7 2 5 ( 2 ) f o r c o n s u m e r g o o d s .
T h a t
e x c e p t i o n
p r o v i d e s
t h a t "a c a u s e o f a c t i o n f o r damages f o r i n j u r y t o
t h e
p e r s o n
i n t h e
c a s e
o f c o n s u m e r goods
s h a l l
a c c r u e when
t h e
i n j u r y o c c u r s , "
and, R o e b u c k a r g u e s , b e c a u s e C h r i s was
i n j u r e d
on
A p r i l
9,
2 0 0 5 , and
b e c a u s e she
f i l e d
h e r
c l a i m
l e s s
t h a n
n i n e months
l a t e r
on December 20,
2005, h e r
c l a i m was
f i l e d
w i t h i n t h e f o u r - y e a r
p e r i o d a l l o w e d
by l a w .
The
t i m e l i n e s s
o f
R o e b u c k ' s c l a i m t h e r e f o r e h i n g e s on w h e t h e r t h e 580SK by w h i c h
C h r i s was
i n j u r e d was
a "consumer g o o d . "
"Consumer g o o d s " a r e
d e f i n e d
i n § 7 - 9 A - 1 0 2 ( a ) ( 2 3 ) ,
A l a .
Code 1975,
o f A l a b a m a ' s U n i f o r m C o m m e r c i a l Code as "goods t h a t
a r e u s e d o r b o u g h t f o r use
p r i m a r i l y f o r p e r s o n a l ,
f a m i l y ,
o r
h o u s e h o l d p u r p o s e s , " so we must a c c o r d i n g l y d e t e r m i n e w h e t h e r
t h e 580SK C a r l p u r c h a s e d was
" u s e d o r b o u g h t f o r use
p r i m a r i l y
f o r
p e r s o n a l ,
f a m i l y , o r h o u s e h o l d p u r p o s e s . "
A t
t r i a l ,
t h e
u n d i s p u t e d e v i d e n c e i n d i c a t e d t h a t C a r l o r i g i n a l l y
p u r c h a s e d
t h e 580SK t o use
i n h i s
c o n s t r u c t i o n
b u s i n e s s .
I t was
a l s o
e s t a b l i s h e d
t h a t
C a r l
l e f t
t h e
c o n s t r u c t i o n
b u s i n e s s
i n
a p p r o x i m a t e l y 2004 and
t h a t a f t e r t h a t t i m e he u s e d t h e 580SK
p r i m a r i l y a r o u n d h i s a p p r o x i m a t e l y 7 0 - a c r e f a r m i n
M a r s h a l l
8
1080261
C o u n t y .
R o e b u c k t h e r e f o r e a r g u e s t h a t e v e n t h o u g h t h e 580SK
m i g h t h a v e once b e e n c o n s i d e r e d b u s i n e s s e q u i p m e n t , i t
became
a c o n s u m e r good when C a r l f o u n d a p e r s o n a l u s e f o r
i t o u t s i d e
t h e c o n s t r u c t i o n b u s i n e s s .
I n s u p p o r t o f h e r a r g u m e n t
t h a t
t h e l e g a l
c l a s s i f i c a t i o n o f a g o o d c a n c h a n g e when t h a t g o o d
i s p u t t o a d i f f e r e n t u s e , R o e b u c k
c i t e s Ex p a r t e
G e n e r a l
M o t o r s A c c e p t a n c e C o r p . , 425 So. 2d 464 ( A l a .
1 9 8 3 ) , i n w h i c h
t h i s C o u r t c o n c l u d e d t h a t an a u t o m o b i l e was a c o n s u m e r g o o d a t
t h e
t i m e
i t was
p u r c h a s e d
b y
t h e owner
o f a
u s e d - c a r
d e a l e r s h i p f o r
h i s p e r s o n a l u s e b u t t h a t t h e a u t o m o b i l e was
c o n v e r t e d t o b u s i n e s s
i n v e n t o r y when t h e owner
s u b s e q u e n t l y
p l a c e d
i t f o r s a l e
a t h i s d e a l e r s h i p .
I n r e j e c t i n g t h e
a r g u m e n t
t h a t
a c a r t h a t
was
once
a c o n s u m e r
g o o d
must
t h e r e a f t e r r e m a i n a c o n s u m e r g o o d , t h i s C o u r t
s t a t e d :
" [ T h e
p e t i t i o n e r ]
a r g u e s t h a t
t h e c a r was a
c o n s u m e r good when i t
was s o l d t o [ t h e r e s p o n d e n t ]
and t h a t i t
r e m a i n e d a c o n s u m e r g o o d r e g a r d l e s s o f
t h e a c t i o n s t a k e n b y [ t h e r e s p o n d e n t ] .
T h i s i s
n o t
t h e c a s e .
W h i t e and Summers d e a l d i r e c t l y w i t h
t h i s
k i n d o f s i t u a t i o n :
" ' N o t e w e l l t h a t [§] 9-109 [ o f
t h e U n i f o r m
C o m m e r c i a l Code] does n o t c l a s s i f y
goods
a c c o r d i n g t o d e s i g n o r i n t r i n s i c n a t u r e b u t
a c c o r d i n g t o t h e u s e t o w h i c h t h e i r
owner
p u t s them.
I t f o l l o w s t h a t as u s e c h a n g e s ,
e i t h e r
b e c a u s e t h e owner
f i n d s
some new
t a s k
f o r t h e goods
o r b e c a u s e an owner
9
1080261
s e l l s t h e goods t o a n o t h e r who u s e s i t
f o r
a n o t h e r p u r p o s e , t h e c l a s s i f i c a t i o n o f t h e
goods
w i l l
a l s o c h a n g e . '
" J .
W h i t e & R. Summers, U n i f o r m C o m m e r c i a l Code §
23-7
(2d e d . 1 9 8 0 ) .
( E m p h a s i s a d d e d . ) "
Ex p a r t e G e n e r a l M o t o r s A c c e p t a n c e C o r p . , 425 So. 2d a t 466.
However,
a l t h o u g h we a g r e e t h a t t h e c l a s s i f i c a t i o n
o f a
p a r t i c u l a r good may c h a n g e w i t h t h e u s e o f t h e g o o d , and t h a t
C a r l ' s
u s e
o f h i s 580SK
may
h a v e
c h a n g e d
o v e r
t i m e ,
t h e
e v i d e n c e i n t h e r e c o r d n e v e r t h e l e s s i n d i c a t e s t h a t C a r l ' s u s e
o f
t h i s 580SK n e v e r c h a n g e d i n a manner t h a t w o u l d c o n v e r t i t
f r o m b u s i n e s s e q u i p m e n t t o a c o n s u m e r g o o d .
I n o t h e r w o r d s ,
t h e r e i s no s u b s t a n t i a l e v i d e n c e i n d i c a t i n g t h a t t h e 580SK was
e v e r
u s e d
as
a
c o n s u m e r
g o o d ,
t h a t
i s , " p r i m a r i l y
f o r
p e r s o n a l , f a m i l y , o r h o u s e h o l d p u r p o s e s . "
§ 7 - 9 A - 1 0 2 ( a ) ( 2 3 ) .
When R o e b u c k ' s a t t o r n e y q u e s t i o n e d C a r l a t t r i a l a b o u t h i s u s e
o f t h e 580SK,
C a r l
t e s t i f i e d as
f o l l o w s :
"Q:
The
f i r s t
s e v e r a l
y e a r s ,
o r when you g o t t h e
b a c k h o e ,
Mr.
R o e b u c k ,
were
you
s t i l l
i n t h e
c o n s t r u c t i o n
b u s i n e s s ?
"A:
Y e s .
"Q:
D i d you h a v e a f a r m ,
a l s o ?
"A:
Uh-huh.
10
1080261
"Q:
What k i n d o f work i n t h e c o n s t r u c t i o n
b u s i n e s s
d i d you do?
"A:
W e l l ,
we
p u t
i n
s e p t i c
t a n s
and
g e n e r a l
c o n s t r u c t i o n w o r k , d i g f o o t i n g s ,
t h a t
t y p e o f
t h i n g .
"Q:
And you u s e d
t h a t
-- t h e [580SK] b a c k h o e i n
t h i s
c a s e f o r t h a t
p u r p o s e ?
"A:
T h a t ' s
c o r r e c t .
"Q:
A f t e r s e v e r a l y e a r s p a s s e d and i n t h e few y e a r s
l e a d i n g
b e f o r e
C h r i s ' s
d e a t h , h a d you
g o t t e n
o u t o f d o i n g work f o r
t h e p u b l i c ?
"A: Y e s .
"Q:
What d i d you u s e t h e b a c k h o e f o r
m o s t l y
d u r i n g
t h o s e -¬
"A: We w o r k e d on t h e f a r m w i t h i t
most o f t h e t i m e ,
b u r y i n g cows and w h a t e v e r . "
On c r o s s - e x a m i n a t i o n ,
C a r l was a g a i n a s k e d a b o u t t h i s
s u b j e c t
and gave t h e f o l l o w i n g
t e s t i m o n y :
"Q:
Now,
l e t ' s
g e t b a c k t o y o u r
b u s i n e s s
f o r a
s e c o n d .
Shane
t e s t i f i e d t h e o t h e r d a y , and I
t h i n k
y o u ' v e
t e s t i f i e d
h e r e
t o d a y ,
t h a t
you
o b v i o u s l y b o u g h t
t h i s b a c k h o e we're h e r e a b o u t
f o r
y o u r b u s i n e s s ,
r i g h t ?
"A: Y e s .
"Q:
From 1993 u n t i l s o m e t i m e i n t h e e a r l y 2000s -¬
2003, 2004 -- t h a t ' s what you u s e d y o u r b a c k h o e
f o r ?
"A:
T h a t ' s
c o r r e c t .
11
1080261
"Q:
Y o u r c o n s t r u c t i o n and e x c a v a t i o n
b u s i n e s s ?
"A: Y e s .
"Q:
A n d
t h e n
I g u e s s
a r o u n d
t h a t
t i m e when y o u
s t o p p e d
d o i n g
t h a t
w o r k , you t o o k i t o u t t o
y o u r f a r m ?
"A:
W e l l , t h e f a r m ' s c o n n e c t e d t o t h e b u s i n e s s .
"Q:
I ' v e g o t y o u .
Okay.
"A:
Y e a h .
"Q:
And I t h i n k you t o l d us i n y o u r d e p o s i t i o n
t h a t
you were t r y i n g t o r a i s e -- g e t up y o u r h e r d o f
c a t t l e on t h e f a r m ,
r i g h t , a b o u t t h a t
t i m e ?
"A: Y e s .
"Q:
And
t r y t o
t u r n
i t i n t o
a
s m a l l
l i t t l e
moneymaker f o r you?
"A:
I f p o s s i b l e .
"Q:
B u t you were t r y i n g , r i g h t ?
"A: Y e s . "
E v e n when we v i e w t h i s t e s t i m o n y i n t h e l i g h t most
f a v o r a b l e
t o R o e b u c k , as we must, s e e L a n d E n e r g y , L t d . , 886 So. 2d a t
7 9 1 - 9 2 , i t
does n o t i n d i c a t e t h a t C a r l ' s u s e o f t h e 580SK e v e r
s h i f t e d t o a p r i m a r i l y p e r s o n a l ,
f a m i l y , o r h o u s e h o l d p u r p o s e ;
r a t h e r , i t i n d i c a t e s o n l y
t h a t i t s h i f t e d f r o m one b u s i n e s s
use -- c o n s t r u c t i o n and e x c a v a t i n g -- t o a n o t h e r b u s i n e s s u s e
-- f a r m i n g and r a n c h i n g .
A l t h o u g h h i s r e s i d e n c e was
l o c a t e d
12
1080261
on t h e f a r m p r o p e r t y , C a r l a c k n o w l e d g e d
t h a t he was
t r y i n g t o
o p e r a t e
t h e f a r m
f o r a p r o f i t
and
t h a t
t h e 580SK was
u s e d
p r i m a r i l y f o r f a r m w o r k .
When a s k e d d i r e c t l y how he u s e d t h e
580SK, C a r l
r e p l i e d ,
" w o r k [ i n g ] on t h e f a r m ... b u r y i n g cows
and w h a t e v e r , "
a u s e
c l e a r l y c o n n e c t e d t o h i s e f f o r t t o
r a i s e
c a t t l e
f o r p r o f i t .
A l t h o u g h t h e 580SK m i g h t have b e e n
u s e d
o c c a s i o n a l l y ,
and
e v e n
on t h e o c c a s i o n o f t h e
a c c i d e n t ,
b y
C a r l
and
o t h e r
f a m i l y
members
f o r p u r p o s e s
n o t
d i r e c t l y
r e l a t e d t o t h e b u s i n e s s o f t h e f a r m , w h e t h e r
t h e 580SK was
a
c o n s u m e r good u n d e r § 7 - 9 A - 1 0 2 ( a ) ( 2 3 )
d e p e n d s on i t s p r i m a r y
u s e .
The e v i d e n c e does n o t s u p p o r t R o e b u c k ' s a s s e r t i o n
t h a t
t h e
580SK
was
u s e d
p r i m a r i l y
f o r
p e r s o n a l ,
f a m i l y ,
o r
h o u s e h o l d p u r p o s e s ;
t h e r e f o r e , we must c o n c l u d e
t h a t i t was
n o t a c o n s u m e r g o o d .
A b r e a c h - o f - w a r r a n t y c l a i m a g a i n s t
CNH
i s
t h e r e f o r e n o t s u b j e c t t o t h e c o n s u m e r - g o o d s e x c e p t i o n t o
t h e s t a t u t e o f l i m i t a t i o n s i n § 7-2-725.
R o e b u c k ' s b r e a c h - o f -
w a r r a n t y
c l a i m
i s
a c c o r d i n g l y
t i m e - b a r r e d b e c a u s e
i t
was
b r o u g h t more t h a n f o u r y e a r s a f t e r t h e d a t e t h e c l a i m a c c r u e d
i n
J u l y
1993.
I V .
13
1080261
CNH
n e x t a r g u e s
t h a t
i t i s e n t i t l e d
t o
a j u d g m e n t as
a
m a t t e r o f l a w on R o e b u c k ' s v a r i o u s
o t h e r c l a i m s , w h i c h a r e a l l
t o r t - b a s e d , b e c a u s e , i t s a y s , R o e b u c k f a i l e d t o e s t a b l i s h t h a t
C h r i s ' s
i n j u r i e s
and
d e a t h were
p r o x i m a t e l y
c a u s e d
by
any
m i s c o n d u c t
o r
n e g l i g e n c e
a t t r i b u t a b l e t o
CNH.
R a t h e r ,
CNH
a r g u e s ,
t h e
e v i d e n c e
e s t a b l i s h e d
t h a t
t h e
580SK
had
b e e n
s u b s t a n t i a l l y
m o d i f i e d
a f t e r l e a v i n g CNH's c o n t r o l and
t h a t
t h a t m o d i f i c a t i o n was
t h e p r o x i m a t e c a u s e o f C h r i s ' s
i n j u r i e s
and
d e a t h ,
n o t
any
n e g l i g e n c e
o r
e r r o r s
t h a t
m i g h t
be
a t t r i b u t a b l e
t o CNH.
S p e c i f i c a l l y ,
CNH
a r g u e s t h a t when
t h e
580SK
l e f t
i t s f a c t o r y , i t was
e q u i p p e d w i t h
d u a l - l e v e r
h a n d
c o n t r o l s
t h a t
o p e r a t e d
t h e
b a c k h o e ,
n o t
f o o t - s w i n g
p e d a l s .
CNH
f u r t h e r
a r g u e s
t h a t
a
r e v i e w
o f
t h e
580SK
a f t e r
t h e
a c c i d e n t
r e v e a l e d
t h a t
w h o e v e r
had
c o n v e r t e d
i t f r o m
h a n d
c o n t r o l s t o f o o t p e d a l s f a i l e d t o c h a n g e t h e c e n t e r i n g
s p r i n g
f r o m
t h e
p u r p l e
s p r i n g u s e d w i t h h a n d
c o n t r o l s
t o
t h e
more
r i g i d
b l a c k
s p r i n g u s e d w i t h
f o o t
p e d a l s
2
and
t h a t ,
had
t h e
c e n t e r i n g
s p r i n g b e e n s w i t c h e d ,
t h e
a c c i d e n t
w o u l d n o t
h a v e
2CNH
s o l d
a
k i t t h a t
c o u l d
be
u s e d
t o
c o n v e r t
a 580SK
b a c k h o e f r o m h a n d c o n t r o l s t o f o o t - p e d a l
c o n t r o l s .
T h a t k i t
i n c l u d e d a b l a c k c e n t e r i n g s p r i n g , and t h e u s e r was
i n s t r u c t e d
t o r e p l a c e
t h e
e x i s t i n g p u r p l e
c e n t e r i n g
s p r i n g w i t h t h a t
new
b l a c k
s p r i n g .
14
1080261
o c c u r r e d b e c a u s e , CNH s a y s , t h e 12-pound c h a i n t h r o w n i n t o t h e
o p e r a t o r ' s
cab by
C h r i s
w o u l d n o t have
a p p l i e d
s u f f i c i e n t
f o r c e t o t h e f o o t - s w i n g
p e d a l t o c o m p r e s s t h e more r i g i d
b l a c k
c e n t e r i n g
s p r i n g and a c t i v a t e t h e b a c k h o e .
I n
s u p p o r t
o f
i t s a r g u m e n t
t h a t
t h e
580SK
was
s u b s t a n t i a l l y
m o d i f i e d
a f t e r
l e a v i n g
t h e
f a c t o r y ,
CNH
s u b m i t t e d f a c t o r y r e c o r d s
i n d i c a t i n g t h a t t h e 580SK p u r c h a s e d
b y C a r l was b u i l t w i t h d u a l - l e v e r h a n d c o n t r o l s , and n o t f o o t -
s w i n g
p e d a l s .
Those
f a c t o r y
r e c o r d s
a l s o
i n d i c a t e d
t h a t ,
a f t e r i t s
m a n u f a c t u r e was c o m p l e t e , t h e 580SK was s e n t t o an
i n d e p e n d e n t d e a l e r i n J a c k s o n , M i s s i s s i p p i -- Tubb E q u i p m e n t
and
R e n t a l Company -- f o r s a l e t o t h e p u b l i c , and t h e
r e c o r d s
o f Tubb E q u i p m e n t and R e n t a l
l i k e w i s e i n d i c a t e t h a t t h e 580SK
was e q u i p p e d w i t h
d u a l - l e v e r h a n d c o n t r o l s .
I m p o r t a n t l y ,
R o e b u c k d o e s n o t d i s p u t e
t h a t t h e
a c c i d e n t
t h a t
k i l l e d
C h r i s
w o u l d n o t have
o c c u r r e d
i f t h e
c o r r e c t
c e n t e r i n g
s p r i n g h a d b e e n i n p l a c e .
However, R o e b u c k a r g u e s
t h a t CNH
i s s t i l l
n o t e n t i t l e d t o a j u d g m e n t as a m a t t e r o f
l a w
b e c a u s e , she s a y s :
(1) a q u e s t i o n
o f f a c t e x i s t s as t o
w h e t h e r t h e 580SK
C a r l p u r c h a s e d was m a n u f a c t u r e d w i t h
h a n d
c o n t r o l s o r f o o t
c o n t r o l s , and (2) CNH
s h o u l d
h a v e
f o r e s e e n
15
1080261
t h a t t h e p u r p l e
c e n t e r i n g s p r i n g m i g h t be u s e d i n a 580SK e v e n
a f t e r i t was
c o n v e r t e d t o f o o t
c o n t r o l s .
I n s u p p o r t o f h e r
f i r s t
a r g u m e n t , R o e b u c k
h i g h l i g h t s e v i d e n c e
i n d i c a t i n g t h a t
a p p r o x i m a t e l y
7 5 %
o f t h e 580SKs
CNH
b u i l t
h a d
f o o t - s w i n g
p e d a l s as o p p o s e d t o h a n d c o n t r o l s ; t h a t t h e r e c o r d s
o f Tubb
E q u i p m e n t
and
R e n t a l
i n d i c a t e
t h a t
i t d i d n o t
c o n v e r t
t h e
b a c k h o e
c o n t r o l s on t h e 580SK b e f o r e
t r a n s f e r r i n g i t t o t h e
d e a l e r t h a t u l t i m a t e l y s o l d i t
t o C a r l , M i d - S o u t h e r n E q u i p m e n t
i n H u n t s v i l l e ; t h a t t h e r e i s no e v i d e n c e i n d i c a t i n g t h a t M i d -
S o u t h e r n E q u i p m e n t c o n v e r t e d t h e b a c k h o e c o n t r o l s f r o m h a n d t o
f o o t
o p e r a t i o n ;
and
t h a t when C a r l
r e c e i v e d
t h e 580SK
f r o m
M i d - S o u t h e r n E q u i p m e n t on J u l y 26, 1993, i t
h a d f o o t c o n t r o l s .
Thus,
R o e b u c k
a r g u e s ,
t h e
e v i d e n c e
s u p p o r t s
two
c o n t r a r y
i n f e r e n c e s , e i t h e r o f w h i c h a j u r y c o u l d r e a s o n a b l y b e l i e v e -¬
t h a t t h e 580SK was
c o n v e r t e d t o f o o t
c o n t r o l s
a f t e r i t l e f t
t h e CNH
f a c t o r y o r t h a t t h e 580SK h a d f o o t
c o n t r o l s when i t
l e f t t h e f a c t o r y .
A c c o r d i n g l y ,
she a r g u e s , a j u d g m e n t as a
m a t t e r o f l a w i s i n a p p r o p r i a t e .
However,
we
d i s a g r e e
t h a t R o e b u c k
s u b m i t t e d
s u f f i c i e n t
e v i d e n c e t o c r e a t e a q u e s t i o n
o f f a c t on t h i s p o i n t .
As t h e
c l a i m a n t , R o e b u c k b o r e t h e b u r d e n o f e s t a b l i s h i n g t h a t
C a r l ' s
16
1080261
580SK h a d n o t b e e n s u b s t a n t i a l l y m o d i f i e d a t t h e t i m e o f t h e
a c c i d e n t
f r o m
t h e
c o n d i t i o n
i n w h i c h
i t l e f t
t h e
f a c t o r y .
S e a r s , R o e b u c k & Co. v. H a r r i s , 630 So. 2d 1018, 1026-27 ( A l a .
1
9 9 3 ) .
A t
t r i a l ,
b u s i n e s s r e c o r d s f r o m b o t h CNH
and
Tubb
E q u i p m e n t and R e n t a l were s u b m i t t e d t h a t
i n d i c a t e d
t h a t
t h e
580SK
C a r l
p u r c h a s e d
h a d
h a n d
c o n t r o l s
when
i t
was
m a n u f a c t u r e d
and
d e l i v e r e d
t o Tubb
E q u i p m e n t
and
R e n t a l .
R o e b u c k has s u b m i t t e d n o t h i n g t h a t w o u l d r e b u t t h a t e v i d e n c e ;
i n s t e a d ,
she s p e c u l a t e s t h a t , b e c a u s e 75% o f t h e 580SKs
CNH
m a n u f a c t u r e d h a d f o o t c o n t r o l s , p e r h a p s t h o s e r e c o r d s a r e i n
e r r o r and t h e 580SK C a r l p u r c h a s e d was
a l s o
b u i l t
w i t h
f o o t
c o n t r o l s .
However, " e v i d e n c e w h i c h a f f o r d s n o t h i n g more t h a n
mere s p e c u l a t i o n , c o n j e c t u r e , o r g u e s s i s w h o l l y i n s u f f i c i e n t
t o w a r r a n t s u b m i s s i o n o f t h e c a s e t o t h e j u r y . "
R o b e r t s v.
C a r r o l l ,
377 So. 2d 944,
946
( A l a . 1979)
( c i t i n g H e a d r i c k v.
U n i t e d
I n s . Co.
o f A m e r i c a ,
27 9 A l a . 82,
181
So.
2d
896
( 1 9 6 6 ) ) .
M o r e o v e r , a l t h o u g h R o e b u c k a l s o e m p h a s i z e s
t h a t t h e r e i s
no e v i d e n c e i n d i c a t i n g t h a t M i d - S o u t h e r n E q u i p m e n t c o n v e r t e d
t h e
580SK t o f o o t
c o n t r o l s ,
t h a t
f a c t
i s m i s l e a d i n g b e c a u s e
M i d - S o u t h e r n E q u i p m e n t i s no l o n g e r i n b u s i n e s s and t h e r e i s
17
1080261
no e v i d e n c e w h a t s o e v e r r e g a r d i n g i t s h a n d l i n g and
m a i n t e n a n c e
o f t h e 580SK C a r l p u r c h a s e d .
What u n d i s p u t e d
e v i d e n c e i s i n
t h e
r e c o r d , h o w e v e r ,
i n d i c a t e s , i n c h r o n o l o g i c a l o r d e r :
1)
t h a t t h e 580SK C a r l p u r c h a s e d was
m a n u f a c t u r e d
w i t h
b a c k h o e
h a n d c o n t r o l s ; 2)
t h a t t h e 580SK C a r l p u r c h a s e d h a d
b a c k h o e
h a n d c o n t r o l s a t a l l t i m e s w h i l e
i n t h e p o s s e s s i o n
o f Tubb
E q u i p m e n t
and R e n t a l ; 3) t h a t C a r l o r d e r e d
a 580SK w i t h
f o o t -
s w i n g
p e d a l s
f r o m
M i d - S o u t h e r n
E q u i p m e n t ;
4)
t h a t
Tubb
E q u i p m e n t
and R e n t a l t r a n s f e r r e d t h e 580SK t h a t was u l t i m a t e l y
s o l d t o C a r l t o M i d - S o u t h e r n E q u i p m e n t
on J u l y 23, 1993;
and
5)
t h a t when M i d - S o u t h e r n E q u i p m e n t
d e l i v e r e d t h a t 580SK t o
C a r l
t h r e e
d a y s
l a t e r ,
on
J u l y 26,
1993,
i t h a d
f o o t - s w i n g
p e d a l s , n o t h a n d c o n t r o l s . When c o n s i d e r i n g t h i s e v i d e n c e ,
we
c a n n o t
a g r e e
w i t h R o e b u c k
t h a t
" f a i r - m i n d e d
p e r s o n s
i n t h e
e x e r c i s e
o f
i m p a r t i a l
j u d g m e n t "
c o u l d
r e a s o n a b l y
i n f e r ,
c o n t r a r y t o a l l
t h e r e c o r d s
t h a t have b e e n p r o d u c e d , t h a t
CNH
m a n u f a c t u r e d
t h e
580SK
p u r c h a s e d
b y
C a r l
w i t h
f o o t - s w i n g
p e d a l s .
West v. F o u n d e r s
L i f e A s s u r a n c e Co. o f F l o r i d a ,
547
So.
2d
870,
871
( A l a . 1 9 8 9 ) .
I f a n y t h i n g ,
t h e
r e a s o n a b l e
i n f e r e n c e
t o be made i s t h a t
t h e 580SK
C a r l p u r c h a s e d
was
m o d i f i e d b y M i d - S o u t h e r n E q u i p m e n t
t o meet t h e r e q u e s t
o f t h e
18
1080261
c u s t o m e r who
o r d e r e d
i t .
I t i s u n f o r t u n a t e
t h a t t h e
r e c o r d s
f r o m
M i d - S o u t h e r n
E q u i p m e n t
a r e
u n a v a i l a b l e ; h o w e v e r ,
t o
c o n c l u d e
t h a t
t h e r e
i s
a
q u e s t i o n
o f
f a c t
r e g a r d i n g
t h e
b a c k h o e c o n t r o l s o f t h e 580SK C a r l p u r c h a s e d
b a s e d upon t h a t
u n a v a i l a b i l i t y
w o u l d
e s s e n t i a l l y
s h i f t
t h e b u r d e n
o f
p r o o f
f r o m R o e b u c k t o CNH.
S u c h a b u r d e n s h i f t i n g i s i m p e r m i s s i b l e
u n d e r o u r
l a w .
R o e b u c k
a l s o
a r g u e s
t h a t
CNH
i s
n o t
e n t i t l e d
t o
a
j u d g m e n t as
a m a t t e r
o f l a w b e c a u s e ,
she
s a y s , e v e n i f t h e
580SK had b e e n s u b s t a n t i a l l y m o d i f i e d b e f o r e t h e a c c i d e n t ,
CNH
s h o u l d
have
r e a s o n a b l y
f o r e s e e n
t h a t
m o d i f i c a t i o n .
See
H a r r i s ,
630
So. 2d a t 1027
("A m a n u f a c t u r e r
o r s e l l e r
r e m a i n s
l i a b l e
...
i f t h e
a l t e r a t i o n
o r m o d i f i c a t i o n was
r e a s o n a b l y
f o r e s e e a b l e t o t h e m a n u f a c t u r e r
o r s e l l e r . " ) .
R o e b u c k a r g u e s
t h a t CNH
s h o u l d h a v e f o r e s e e n t h a t t h e w r o n g c e n t e r i n g s p r i n g
c o u l d be
l e f t
i n a 580SK when t h e b a c k h o e was
c o n v e r t e d
f r o m
h a n d c o n t r o l s t o f o o t c o n t r o l s b e c a u s e ,
f i r s t ,
CNH
knew
s u c h
c o n v e r s i o n s o c c u r r e d and,
i n f a c t , p r o d u c e d and
s o l d a k i t t o
a c c o m p l i s h t h o s e c o n v e r s i o n s , and, s e c o n d , CNH
had l e a r n e d , i n
1998
o r 1999,
o f an a c c i d e n t t h a t o c c u r r e d i n A l a s k a
i n v o l v i n g
19
1080261
a f o o t - o p e r a t e d
580SK b a c k h o e
i n w h i c h t h e c o r r e c t
c e n t e r i n g
s p r i n g h a d n o t b e e n
i n s t a l l e d .
CNH
a r g u e s , h o w e v e r ,
t h a t t h e A l a s k a
a c c i d e n t i t l e a r n e d
o f i n 1998
o r 1999
has no b e a r i n g
on w h e t h e r
i t c o u l d
h a v e
f o r e s e e n ,
a t t h e t i m e t h e 580SK h e r e was
m a n u f a c t u r e d
and
d e l i v e r e d t o C a r l ,
t h a t t h e w r o n g c e n t e r i n g
s p r i n g m i g h t
be
u s e d i n a h a n d - c o n t r o l - t o - f o o t - c o n t r o l c o n v e r s i o n b e c a u s e t h e
k n o w l e d g e
o f
t h e
A l a s k a
a c c i d e n t
was
n o t
a c q u i r e d
u n t i l
a p p r o x i m a t e l y
f i v e
y e a r s
a f t e r
C a r l
p u r c h a s e d
h i s 580SK.
3
M o r e o v e r ,
a l t h o u g h CNH
a c k n o w l e d g e s
t h a t i t was
f o r e s e e a b l e
t h a t hand c o n t r o l s on a 580SK w o u l d s o m e t i m e s be c o n v e r t e d t o
f o o t
c o n t r o l s
and
t h a t
i t p r o d u c e d
a
k i t so
t h a t
s u c h
a
c o n v e r s i o n
c o u l d
be
p e r f o r m e d ,
i t a r g u e s
t h a t
i t was
n o t
f o r e s e e a b l e t h a t t h e c o n v e r s i o n w o u l d be p e r f o r m e d
i n c o r r e c t l y
and
t h a t
t h e w r o n g
c e n t e r i n g
s p r i n g
w o u l d
be
l e f t
i n t h e
b a c k h o e i n l i g h t o f t h e f a c t t h a t t h e c o n v e r s i o n
k i t i n c l u d e d
t h e
c o r r e c t
c e n t e r i n g
s p r i n g
and
t h e
i n c l u d e d
i n s t r u c t i o n s
s p e c i f i c a l l y
i n s t r u c t e d t h e p e r s o n p e r f o r m i n g t h e
c o n v e r s i o n
as t o how
t o s w i t c h t h e s p r i n g s .
We
a g r e e .
3 A t
t r i a l , a CNH
r e p r e s e n t a t i v e a l s o t e s t i f i e d t h a t , e v e n
t h o u g h t h e 580SK i n v o l v e d i n t h e A l a s k a a c c i d e n t h a d t h e w r o n g
c e n t e r i n g s p r i n g i n t h e c o n t r o l m e c h a n i s m o f t h e b a c k h o e ,
t h e
c e n t e r i n g
s p r i n g was n o t t h e c a u s e o f t h e
a c c i d e n t .
20
1080261
I t i s i n s t r u c t i v e t o compare t h e f a c t s o f t h e p r e s e n t
c a s e w i t h t h e f a c t s i n H a r r i s , i n w h i c h
t h i s C o u r t c o n c l u d e d
t h a t a m o d i f i c a t i o n t o a p r o d u c t t h a t s u b s e q u e n t l y c a u s e d an
i n j u r y was f o r e s e e a b l e and t h a t t h e m a n u f a c t u r e r was t h e r e f o r e
s u b j e c t t o l i a b i l i t y n o t w i t h s t a n d i n g
t h e m o d i f i c a t i o n t o t h e
p r o d u c t .
630 So. 2d a t 1027. We s u m m a r i z e d
H a r r i s as f o l l o w s
i n H o r n v. F a d a l M a c h i n i n g C e n t e r s , L L C , 972 So. 2d 63, 72-73
( A l a .
2 0 0 7 ) :
" H a r r i s
i n v o l v e d , among o t h e r t h i n g s , an AEMLD
a c t i o n a g a i n s t a m a n u f a c t u r e r and a r e t a i l e r
a r i s i n g
o u t o f t h e i m p r o p e r
i n s t a l l a t i o n o f a w a t e r h e a t e r ,
r e s u l t i n g i n
t h e s e v e r e c a r b o n - m o n o x i d e
p o i s o n i n g o f
t h e
o c c u p a n t s o f a m o b i l e home.
The h e a t e r was
i m p r o p e r l y
i n s t a l l e d
' w i t h o u t a p i p e t o v e n t c a r b o n
m o n o x i d e and o t h e r e x h a u s t g a s e s o u t s i d e t h e m o b i l e
home.'
630
So. 2d a t 1023.
The
h e a t e r
was
p r e v i o u s l y owned, and no
' d r a f t h o o d '
a c c o m p a n i e d
t h e
h e a t e r when i t l e f t
t h e o r i g i n a l
p u r c h a s e r ' s
p o s s e s s i o n .
" ' A t
t r i a l ,
[ t h e i n s t a l l e r f o r t h e o c c u p a n t s ]
t e s t i f i e d t h a t when he i n s t a l l e d t h e w a t e r h e a t e r he
d i d
n o t
know
t h a t
gas
w a t e r
h e a t e r s
r e q u i r e d
v e n t i n g . '
630 So. 2d a t 1023.
A f t e r
a
j u r y
r e t u r n e d
a
v e r d i c t
a g a i n s t
t h e m a n u f a c t u r e r
and
s e l l e r ,
t h e m a n u f a c t u r e r
and
s e l l e r
moved f o r a
j u d g m e n t n o t w i t h s t a n d i n g t h e v e r d i c t
[now c a l l e d a
j u d g m e n t as a m a t t e r o f l a w ] , a r g u i n g , among o t h e r
t h i n g s ,
t h a t t h e p l a i n t i f f s
h a d
f a i l e d
t o
' c a r r y
t h e i r b u r d e n o f e s t a b l i s h i n g
t h a t t h e w a t e r h e a t e r
h a d
n o t b e e n
s u b s t a n t i a l l y
a l t e r e d
b e t w e e n i t s
[ s a l e ] and t h e t i m e o f t h e a c c i d e n t . '
630 So. 2d a t
1027.
I n d e e d ,
t h e ' u n d i s p u t e d e v i d e n c e was
t h a t
when t h e w a t e r h e a t e r was
i n s t a l l e d i n t h e m o b i l e
21
1080261
home i t s d r a f t h o o d a n d v e n t p i p e a n d t h e p l a s t i c
p o u c h
c o n t a i n i n g
t h e
i n s t r u c t i o n
m a n u a l
were
m i s s i n g . ' 630 So. 2d a t 1 0 2 3 .
However, t h e
t r i a l
c o u r t
d e n i e d
t h e i r
m o t i o n ,
a n d t h e y
r a i s e d
t h a t
i s s u e on a p p e a l .
The p l a i n t i f f s
a r g u e d
t h a t ' [ i ] t
was
f o r e s e e a b l e ... t h a t t h e p o u c h
c o n t a i n i n g t h e
i n s t r u c t i o n m a n u a l , as w e l l as t h e d r a f t h o o d a n d
v e n t p i p e ,
w o u l d be r e m o v e d f r o m t h e w a t e r
h e a t e r . '
630 So. 2d a t
1027.
" T h i s C o u r t a g r e e d w i t h t h e p l a i n t i f f s a n d h e l d
t h a t
' t h e t r i a l
c o u r t d i d n o t e r r i n d e n y i n g t h e
m o t i o n s f o r a [ j u d g m e n t n o t w i t h s t a n d i n g t h e v e r d i c t ]
on
t h e b a s i s
o f a
s u b s t a n t i a l
a l t e r a t i o n o f t h e
p r o d u c t . '
630 So. 2d a t 1028. The C o u r t
s t a t e d :
"'[W]e h o l d
t h a t t h e c h a n g e s i n t h e w a t e r
h e a t e r
e i t h e r
were
n o t
s u b s t a n t i a l
a l t e r a t i o n s o r , i f t h e y were
s u b s t a n t i a l
a l t e r a t i o n s , were f o r e s e e a b l e .
F i r s t , t h e
e v i d e n c e shows t h a t t h e v e n t p i p e was n o t
s o l d
w i t h
t h e
w a t e r
h e a t e r .
The
i n s t r u c t i o n m a n u a l s t a t e s t h a t t h e c u s t o m e r
must p r o v i d e h i s own v e n t p i p e .
T h e r e f o r e ,
t h e
a b s e n c e o f a v e n t
p i p e
c a n n o t be a
s u b s t a n t i a l
a l t e r a t i o n
o f t h e
p r o d u c t .
S e c o n d , s u b s t a n t i a l e v i d e n c e shows t h a t t h e
i n s t r u c t i o n m a n u a l [and]
t h e d r a f t h o o d ...
were d e t a c h a b l e a n d e a s i l y r e m o v e d .
When
t h e
w a t e r h e a t e r was o r i g i n a l l y
s o l d , t h e
i n s t r u c t i o n
m a n u a l
was
c o n t a i n e d
i n a
p l a s t i c p o u c h a f f i x e d t o t h e w a t e r
h e a t e r
by
a d h e s i v e
t a p e .
The
d r a f t
h o o d was
a t t a c h e d b y s l i p p i n g t a b s
l o c a t e d
on t h e
l e g s o f t h e d r a f t h o o d i n t o h o l e s p l a c e d i n
t h e
j a c k e t
t o p c o v e r i n g
t h e t o p o f t h e
w a t e r h e a t e r .... Thus, t h e r e m o v a l o f
t h e
m a n u a l
[and] t h e d r a f t
h o o d
... was a
f o r e s e e a b l e
a l t e r a t i o n
o f
t h e
w a t e r
h e a t e r . '
"630
So. 2d a t 1028 ( e m p h a s i s a d d e d ) . "
22
1080261
( F o o t n o t e
o m i t t e d . )
Thus, i n H a r r i s , t h e o c c u p a n t s
o f a
m o b i l e home were
i n j u r e d when a w a t e r h e a t e r was
i m p r o p e r l y
i n s t a l l e d w i t h o u t a d r a f t h o o d o r v e n t p i p i n g , c a u s i n g
c a r b o n
m o n o x i d e t o b u i l d up i n s i d e t h e home.
We c o n c l u d e d t h a t t h e
m a n u f a c t u r e r
a n d / o r
r e t a i l e r
s h o u l d
h a v e
f o r e s e e n
t h a t
p o s s i b i l i t y
b e c a u s e v e n t
p i p i n g was n o t i n c l u d e d
w i t h t h e
w a t e r h e a t e r and t h e i n s t r u c t i o n m a n u a l and d r a f t h o o d were
e a s i l y
s e p a r a b l e
f r o m t h e w a t e r
h e a t e r .
I n t h i s c a s e , h o w e v e r , a l t h o u g h t h e c i r c u m s t a n c e s o f t h e
c o n v e r s i o n
o f C a r l ' s 580SK a r e n o t known, t h e r e i s e v i d e n c e
i n d i c a t i n g t h a t t h e c o n v e r s i o n
k i t
d i s t r i b u t e d by CNH
i n c l u d e d
t h e
c o r r e c t c e n t e r i n g
s p r i n g t h a t
s h o u l d be i n s t a l l e d
d u r i n g
t h e
c o n v e r s i o n
f r o m h a n d c o n t r o l s t o f o o t c o n t r o l s -- u n l i k e
t h e
w a t e r
h e a t e r
i n H a r r i s ,
w h i c h
d i d n o t
i n c l u d e
t h e
n e c e s s a r y
v e n t
p i p i n g
-- and t h a t
t h e i n s t r u c t i o n m a n u a l
i n c l u d e d i n t h e k i t d e t a i l e d t h e p r o c e s s n e c e s s a r y t o s w i t c h
o u t
t h e c e n t e r i n g
s p r i n g s .
CNH
c o u l d
n o t h a v e
r e a s o n a b l y
f o r e s e e n
t h a t t h e p e r s o n c o n v e r t i n g t h e 580SK t o f o o t
c o n t r o l s
w o u l d
h a v e
b o t h :
(1)
f a i l e d
t o
f o l l o w
t h e i n s t r u c t i o n s
i n c l u d e d i n t h e k i t
f o r a c c o m p l i s h i n g
t h a t c o n v e r s i o n and (2)
f a i l e d t o i n s t a l l a n e c e s s a r y p a r t
t h a t was i n c l u d e d i n
t h e
23
1080261
c o n v e r s i o n
k i t .
See M o r g u s o n v.
3M
Co.,
857
So.
2d
796,
801
( A l a .
2003)
( h o l d i n g
t h a t
t h e
s u b s t a n t i a l m o d i f i c a t i o n
o f
m e d i c a l e q u i p m e n t
was
n o t
f o r e s e e a b l e
t o
t h e
m a n u f a c t u r e r
w h e r e , among o t h e r
t h i n g s , t h e e q u i p m e n t had b e e n i n c o r r e c t l y
a s s e m b l e d
and
t h e
a s s e m b l e r
f a i l e d
t o
f o l l o w
h o s p i t a l
i n s t r u c t i o n s f o r v e r i f y i n g e q u i p m e n t was
c o r r e c t l y a s s e m b l e d ) .
See
a l s o Mendez v. Honda M o t o r Co.,
738 F.Supp. 481,
484
(S.D.
F l a .
1990)
( h o l d i n g
t h a t
t h e r e
was
no
d e s i g n
d e f e c t
where
" [ p ] l a i n t i f f
c l e a r l y m i s u s e d t h e m o t o r c y c l e by
i n s t a l l i n g
t h e
s h o c k a b s o r b e r s , w i t h o u t
r e f e r r i n g t o
t h e o w n e r ' s m a n u a l
o r
any
o t h e r
s o u r c e o f i n f o r m a t i o n ,
u p s i d e down").
To
s u c c e e d on
any
o f h e r
t o r t - b a s e d
c l a i m s , R o e b u c k
was
r e q u i r e d
t o
e s t a b l i s h
t h a t
C h r i s ' s
d e a t h
was
p r o x i m a t e l y
c a u s e d by some a c t o f CNH's.
However, e v e n i f she was
a b l e
t o
e s t a b l i s h t h a t CNH
was
g u i l t y o f some n e g l i g e n c e
o r w a n t o n n e s s
r e l a t e d t o C a r l ' s 580SK, t h e u n d i s p u t e d e v i d e n c e
n e v e r t h e l e s s
i n d i c a t e s t h a t t h e p r o x i m a t e c a u s e o f t h e a c c i d e n t
t h a t l e d t o
C h r i s ' s d e a t h was
n o t
t h a t n e g l i g e n c e
o r w a n t o n n e s s , b u t
t h e
i m p r o p e r m o d i f i c a t i o n o f t h e 580SK when i t was
c o n v e r t e d f r o m
h a n d
c o n t r o l s
t o
f o o t
c o n t r o l s .
B e c a u s e R o e b u c k
f a i l e d
t o
i n t r o d u c e s u b s t a n t i a l e v i d e n c e i n d i c a t i n g t h a t CNH
p r o x i m a t e l y
24
1080261
c a u s e d t h e a c c i d e n t l e a d i n g t o C h r i s ' s d e a t h , CNH i s e n t i t l e d
t o
a j u d g m e n t as a m a t t e r o f l a w on a l l
t h e t o r t
c l a i m s
a s s e r t e d by R o e b u c k .
See K i n g v. N a t i o n a l Spa & P o o l
I n s t . ,
I n c . , 607 So. 2d 1 2 4 1 , 1247 ( A l a . 1992) ("[W]e n o t e t h a t t h e
s e t t l e d
p o l i c y
o f o u r s y s t e m o f t o r t
l a w i s t o p l a c e t h e
r e s p o n s i b i l i t y
f o r c o m p e n s a t i o n f o r an
i n j u r y
on t h e p a r t y
t h a t p r o x i m a t e l y
c a u s e s t h e i n j u r y . " ) .
V.
R o e b u c k
s u e d CNH
a f t e r
h e r h u s b a n d was
k i l l e d
i n an
a c c i d e n t
i n v o l v i n g
a b a c k h o e m a n u f a c t u r e d b y CNH.
A
j u r y
r e t u r n e d
a
v e r d i c t
i n f a v o r
o f CNH,
b u t t h e
t r i a l
c o u r t
s u b s e q u e n t l y
o r d e r e d
a
new
t r i a l
as
a
r e s u l t
o f
j u r o r
m i s c o n d u c t .
On
a p p e a l ,
CNH
a r g u e s
t h a t
t h e
t r i a l
c o u r t
e x c e e d e d i t s
d i s c r e t i o n
i n o r d e r i n g a new
t r i a l
o r , i n t h e
a l t e r n a t i v e ,
t h a t CNH was e n t i t l e d t o a j u d g m e n t as a m a t t e r
o f l a w .
We a g r e e t h a t t h e t r i a l
c o u r t
e r r e d i n f a i l i n g t o
e n t e r a j u d g m e n t as a m a t t e r o f l a w i n f a v o r o f CNH b e c a u s e
R o e b u c k ' s
b r e a c h - o f - w a r r a n t y
c l a i m
was
b a r r e d
b y
t h e
a p p l i c a b l e s t a t u t e o f l i m i t a t i o n s , a n d , i n r e g a r d t o h e r t o r t
c l a i m s ,
she
f a i l e d
t o
p r e s e n t
s u b s t a n t i a l
e v i d e n c e
o f
p r o x i m a t e
c a u s a t i o n .
Our r e s o l u t i o n
o f t h i s
i s s u e makes i t
25
1080261
u n n e c e s s a r y f o r
us t o c o n s i d e r
w h e t h e r
t h e t r i a l
c o u r t
a l s o
e x c e e d e d i t s d i s c r e t i o n i n g r a n t i n g R o e b u c k ' s m o t i o n f o r
a new
t r i a l .
The
j u d g m e n t
o f t h e
t r i a l
c o u r t
i s
a c c o r d i n g l y
r e v e r s e d
and t h e c a u s e
remanded f o r p r o c e e d i n g s
c o n s i s t e n t
w i t h
t h i s
o p i n i o n .
REVERSED AND REMANDED.
Cobb, C . J . , and L y o n s ,
W o o d a l l ,
S m i t h ,
B o l i n ,
P a r k e r ,
M u r d o c k , and Shaw, J J . , c o n c u r .
26 | October 23, 2009 |
c340994c-3880-4e36-997e-7ec67929a67a | William D. Smallwood, Sr., et al. v. Holiday Development, LLC and Seaside Title, LLC | N/A | 1081144 | Alabama | Alabama Supreme Court | REL: 11/13/2009
Notice: T h i s
o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e
advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e
Reporter of
Decisions,
Alabama A p p e l l a t e C o u r t s , 300 D e x t e r Avenue, Montgomery, Alabama 36104-3741 ((334) 229¬
0 6 4 9 ) , o f
any
t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may
be
made b e f o r e
t h e o p i n i o n i s p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1081144
W i l l i a m D. Smallwood, S r . ,
e t a l .
v.
H o l i d a y Development, LLC,
and Seaside T i t l e , LLC
1081146
W i l l i a m D. Smallwood, S r . ,
e t a l .
v.
H o l i d a y Development, LLC,
and Seaside T i t l e , LLC
Appeals from Baldwin C i r c u i t
Court
(CV-06-1271 and CV-06-1299)
1081144, 1081146
STUART,
J u s t i c e .
W i l l i a m D. S m a l l w o o d , S r . , and v a r i o u s o t h e r
i n d i v i d u a l s
and
b u s i n e s s
e n t i t i e s
t h a t
c o n t r a c t e d
w i t h
H o l i d a y
D e v e l o p m e n t , L L C ,
t o p u r c h a s e u n i t s i n i t s p l a n n e d
San
C a r l o s
c o n d o m i n i u m d e v e l o p m e n t i n G u l f S h o r e s ( t h e s e i n d i v i d u a l s
and
b u s i n e s s
e n t i t i e s
a r e
h e r e i n a f t e r
r e f e r r e d
t o
as
" t h e
p u r c h a s e r s " )
u n i t e d
t o
sue
H o l i d a y
D e v e l o p m e n t
and
S e a s i d e
T i t l e ,
L L C ,
t h e e s c r o w a g e n t h o l d i n g t h e i r d e p o s i t s , i n
t h e
B a l d w i n
C i r c u i t C o u r t ,
a l l e g i n g b r e a c h
o f c o n t r a c t and
f r a u d ,
and s e e k i n g a r e s t r a i n i n g o r d e r p r o h i b i t i n g S e a s i d e
T i t l e f r o m
r e l e a s i n g t h e i r e s c r o w f u n d s t o H o l i d a y D e v e l o p m e n t b e c a u s e ,
t h e p u r c h a s e r s
a l l e g e d , t h e c o n s t r u c t i o n o f San C a r l o s was
n o t
o f t h e p r o m i s e d
q u a l i t y .
On
t h e
m o t i o n
o f
H o l i d a y
D e v e l o p m e n t ,
t h e
t r i a l
c o u r t
c o m p e l l e d
a r b i t r a t i o n p u r s u a n t
t o
a r b i t r a t i o n p r o v i s i o n s i n
t h e
c o n t r a c t s
s i g n e d
by
e a c h
o f
t h e
p u r c h a s e r s .
However,
a p p r o x i m a t e l y
two
y e a r s
a f t e r
t h e c a s e had b e e n r e f e r r e d t o
a r b i t r a t i o n ,
t h e
a r b i t r a t o r
d i s m i s s e d
t h e
a r b i t r a t i o n
p r o c e e d i n g s
b e c a u s e H o l i d a y D e v e l o p m e n t had
f a i l e d t o p a y i t s
s h a r e o f t h e a r b i t r a t i o n f e e s and had s t a t e d t h a t i t w o u l d
n o t
p a y t h o s e f e e s b e c a u s e i t was
f i n a n c i a l l y u n a b l e t o do s o .
A t
2
1081144,
1081146
some p o i n t
d u r i n g t h e t w o - y e a r p e r i o d t h e p a r t i e s
were i n
a r b i t r a t i o n ,
S e a s i d e
T i t l e
r e l e a s e d t h e p u r c h a s e r s '
e s c r o w
f u n d s
e i t h e r
t o H o l i d a y D e v e l o p m e n t
o r d i r e c t l y
t o
H o l i d a y
D e v e l o p m e n t ' s
c r e d i t o r s .
A f t e r
t h e
a r b i t r a t o r
d i s m i s s e d
t h e
a r b i t r a t i o n
p r o c e e d i n g s ,
t h e p u r c h a s e r s
f i l e d an amended c o m p l a i n t and a
m o t i o n f o r a d e f a u l t j u d g m e n t i n t h e
t r i a l
c o u r t .
H o l i d a y
D e v e l o p m e n t
o p p o s e d t h e m o t i o n f o r a d e f a u l t j u d g m e n t
and
a r g u e d t o t h e t r i a l
c o u r t t h a t t h e c o u r t was r e q u i r e d by t h e
F e d e r a l A r b i t r a t i o n A c t , 9 U.S.C. § 1 e t s e q . ( " t h e F A A " ) , t o
e n f o r c e t h e o r d e r e n t e r e d by t h e a r b i t r a t o r and t o e n t e r
an
o r d e r
o f d i s m i s s a l e x a c t l y as t h e a r b i t r a t o r h a d done.
On
A p r i l 24, 2009, t h e t r i a l c o u r t g r a n t e d H o l i d a y D e v e l o p m e n t ' s
r e q u e s t and d i s m i s s e d t h e c a s e .
I t s u b s e q u e n t l y
m o d i f i e d i t s
o r d e r t o c l a r i f y t h a t t h e c l a i m s t h e p u r c h a s e r s
h a d a s s e r t e d
a g a i n s t
S e a s i d e
T i t l e
were
a l s o d i s m i s s e d .
The
p u r c h a s e r s
a p p e a l ; we r e v e r s e and
remand.
F r o m
t h e r e c o r d
b e f o r e
u s , i t a p p e a r s t h a t
t h e
t r i a l
c o u r t
d i s m i s s e d
t h e
p u r c h a s e r s '
c l a i m s
a g a i n s t
H o l i d a y
D e v e l o p m e n t and S e a s i d e
T i t l e b e c a u s e i t u n d e r s t o o d
t h a t t h a t
was what i t was r e q u i r e d t o do so p u r s u a n t
t o t h e FAA.
S u c h
3
1081144, 1081146
an u n d e r s t a n d i n g was l i k e l y b a s e d on s t a t e m e n t s made by t h i s
C o u r t
i n d i c a t i n g t h a t
c o u r t s
must
e n f o r c e
a w a r d s made i n
a r b i t r a t i o n
u n l e s s
t h e a g g r i e v e d
p a r t y
p r o p e r l y
e s t a b l i s h e s
t h a t
t h e a w a r d
s h o u l d
be v a c a t e d
b a s e d
upon one o f t h e
f o l l o w i n g g r o u n d s e n u m e r a t e d i n
§ 1 0 ( a ) o f t h e
F A A :
" 1 )
where t h e a w a r d was p r o c u r e d by
c o r r u p t i o n ,
f r a u d , o r undue m e a n s ;
"2)
where
t h e r e
was
e v i d e n t
p a r t i a l i t y
o r
c o r r u p t i o n
i n t h e a r b i t r a t o r s , o r e i t h e r o f
t h e m ;
"3)
where t h e a r b i t r a t o r s were g u i l t y o f m i s c o n d u c t
i n
r e f u s i n g
t o p o s t p o n e
t h e h e a r i n g ,
upon
s u f f i c i e n t c a u s e shown, o r i n r e f u s i n g t o h e a r
e v i d e n c e
p e r t i n e n t
a n d
m a t e r i a l
t o
t h e
c o n t r o v e r s y ;
o r o f any o t h e r
m i s b e h a v i o r b y
w h i c h
t h e
r i g h t s
o f any
p a r t y
have
b e e n
p r e j u d i c e d ; o r
"4)
where t h e a r b i t r a t o r s e x c e e d e d t h e i r p o w e r s , o r
so
i m p e r f e c t l y
e x e c u t e d
them
t h a t
a
m u t u a l ,
f i n a l ,
a n d
d e f i n i t e a w a r d
upon
t h e
s u b j e c t
m a t t e r s u b m i t t e d was n o t made."
See
H e r e f o r d
v. D.R. H o r t o n , I n c . ,
13 So. 3d 375, 381 ( A l a .
200 9)
( " [ B ] e c a u s e
[ t h e a p p e l l a n t ]
h a s n o t a r g u e d
t h a t
t h i s
C o u r t s h o u l d
v a c a t e t h e d e c i s i o n o f t h e a r b i t r a t o r on any o f
t h e
g r o u n d s
s p e c i f i e d i n § 1 0 ( a ) o f t h e [ F A A ] , she h a s n o t
d e m o n s t r a t e d
t h a t she i s e n t i t l e d t o r e l i e f
f r o m t h e
t r i a l
c o u r t ' s
d e c i s i o n
c o n f i r m i n g
t h e a r b i t r a t o r ' s d e c i s i o n . " ) ;
4
1081144, 1081146
H o r t o n Homes, I n c . v. S h a n e r , 999
So.
2d
462,
467
n.
2
( A l a .
2008)
("We
r e i t e r a t e
t h a t a p a r t y d e s i r i n g
j u d i c i a l r e v i e w
o f
an
a r b i t r a t i o n a w a r d i n a p r o c e e d i n g
s u b j e c t
t o t h e
[FAA]
i s
l i m i t e d
t o a r g u m e n t s b a s e d on
t h o s e g r o u n d s e n u m e r a t e d i n 9
U.S.C. § 10, w h i c h e n c o m p a s s e s t h e g r o u n d s o f r e v i e w
l i s t e d i n
§ 6-6-14, A l a . Code 1 9 7 5 . " ) ; and
H a l l
S t r e e t A s s o c s . , L.L.C.
v.
M a t t e l ,
I n c . ,
552
U.S.
57 6,
, 128
S.
C t .
1396,
1402
(2008) ("Under t h e t e r m s o f § 9 [ o f t h e F A A ] ,
a c o u r t ' m u s t '
c o n f i r m an a r b i t r a t i o n a w a r d ' u n l e s s ' i t i s v a c a t e d ,
m o d i f i e d ,
o r
c o r r e c t e d
' a s
p r e s c r i b e d ' i n §§
10
and
11.
S e c t i o n
10
l i s t s
g r o u n d s f o r v a c a t i n g
an a w a r d , w h i l e
§ 11 names t h o s e
f o r m o d i f y i n g
o r
c o r r e c t i n g
o n e . " ) .
See
a l s o R u l e 71B,
A l a .
R.
C i v . P.
( o u t l i n i n g
t h e p r o c e d u r e f o r s e e k i n g
t h e r e v i e w
o f
an
a r b i t r a t i o n
a w a r d ) .
C o l l e c t i v e l y ,
t h e
above
a u t h o r i t y
s t a n d s
f o r
t h e
p r i n c i p l e
t h a t c o u r t s a r e r e q u i r e d t o c o n f i r m and
g i v e
e f f e c t
t o
an
a r b i t r a t o r ' s
d e c i s i o n
u n l e s s
one
o f
t h e
g r o u n d s
e n u m e r a t e d i n § 10
o f
t h e
FAA
has
b e e n e s t a b l i s h e d .
I n
t h e
p r e s e n t
c a s e , t h e
a r b i t r a t o r
e n t e r e d
two
o r d e r s
a r t i c u l a t i n g
i t s d e c i s i o n and
t h e
r a t i o n a l e
u n d e r l y i n g
i t . On J a n u a r y
28,
5
1081144,
1081146
2009, t h e
a r b i t r a t o r
e n t e r e d an o r d e r m a k i n g t h e
f o l l o w i n g
f i n d i n g s and
o r d e r :
" 1 .
H o l i d a y D e v e l o p m e n t , LLC, i s i n b r e a c h
o f t h e
a r b i t r a t i o n
a g r e e m e n t s
b e t w e e n
H o l i d a y
and
t h e
[ p u r c h a s e r s ] .
I t i s u n d i s p u t e d
t h a t
H o l i d a y
has
f a i l e d
t o
p a y
t h e
d e p o s i t
f o r
a r b i t r a t o r
c o m p e n s a t i o n
( ' D e p o s i t ' )
r e q u i r e d by t h e A m e r i c a n
A r b i t r a t i o n
A s s o c i a t i o n p u r s u a n t t o t h e C o n s t r u c t i o n
I n d u s t r y
D i s p u t e
R e s o l u t i o n P r o c e d u r e s .
T h r o u g h
c o u n s e l ,
H o l i d a y has
i n d i c a t e d
t h a t i t c a n n o t
p a y
t h e D e p o s i t .
F a i l u r e
t o p a y i s a m a t e r i a l b r e a c h o f
t h e
a r b i t r a t i o n
a g r e e m e n t s b e t w e e n t h e
[ p u r c h a s e r s ]
and H o l i d a y .
"2.
A t
t h e
h e a r i n g ,
c o u n s e l
f o r S e a s i d e
[ T i t l e ,
LLC,]
i n d i c a t e d
t h a t h i s c l i e n t may
be
w i l l i n g t o
p o s t
t h e D e p o s i t
owed by
H o l i d a y .
I t i s o r d e r e d
t h a t S e a s i d e
s h a l l have u n t i l F e b r u a r y 11, 2009, t o
p a y
t h i s
D e p o s i t
on
b e h a l f
o f
H o l i d a y .
I f t h e
D e p o s i t i s p a i d , t h e n
t h i s m a t t e r
w i l l be
s c h e d u l e d
f o r a h e a r i n g as s o o n as
p o s s i b l e .
"3. I n t h e e v e n t S e a s i d e does n o t p a y t h e D e p o s i t on
o r
b e f o r e
F e b r u a r y
11,
2009,
t h i s
c a s e
s h a l l
a u t o m a t i c a l l y
be
remanded
t o
t h e
B a l d w i n
C o u n t y
C i r c u i t
C o u r t
o f t h e S t a t e o f A l a b a m a
f o r f u r t h e r
p r o c e e d i n g s .
"4. [The p u r c h a s e r s ' ] r e q u e s t f o r a d e f a u l t j u d g m e n t
i s
d e n i e d .
The
A r b i t r a t o r
does n o t h a v e t h e
l e g a l
a u t h o r i t y t o e n t e r a d e f a u l t i n t h i s m a t t e r due t o
t h e
f a i l u r e o f H o l i d a y t o p a y t h e D e p o s i t .
"5. I n t h e e v e n t o f t h e remand n o t e d i n P a r a g r a p h
3,
t h e n
t h i s
a r b i t r a t i o n
w i l l
be
c l o s e d .
The
A r b i t r a t o r ' s
f e e s and e x p e n s e s i n t h i s m a t t e r
t o t a l
$ 1 , 9 0 0 . 0 0 .
F i f t y p e r c e n t
(50%) o f t h e s e
f e e s
and
e x p e n s e s o r $950.00
s h a l l be p a i d f r o m t h e d e p o s i t
made by
t h e
[ p u r c h a s e r s ]
w i t h
t h e AAA
[ A m e r i c a n
A r b i t r a t i o n
A s s o c i a t i o n ] and
f i f t y p e r c e n t
(50%) o r
6
1081144,
1081146
$
950.00
s h a l l
be
p a i d
f r o m
t h e d e p o s i t s made
by
S e a s i d e
T i t l e [ ,
L L C , ]
w i t h
t h e
AAA.
The
[ p u r c h a s e r s ] and
S e a s i d e
s h a l l
h a v e
t h e
r i g h t
t o
r e c o v e r
a l l o f
t h e s e
f u n d s
f r o m
H o l i d a y
i n t h e
c i r c u i t
c o u r t
a c t i o n .
H o l i d a y i s l i a b l e
f o r s u c h
c o s t s .
The
u n u s e d
b a l a n c e
o f
t h e
a r b i t r a t o r
c o m p e n s a t i o n
d e p o s i t s p a i d by t h e [ p u r c h a s e r s ] and
S e a s i d e
s h a l l be r e f u n d e d t o them."
On M a r c h 27, 2009, t h e
a r b i t r a t o r
e n t e r e d
a
" f i n a l
o r d e r "
s t a t i n g :
"On J a n u a r y 28, 2009, I o r d e r e d t h a t t h i s
m a t t e r
s h a l l be remanded
t o [ t h e ] B a l d w i n
C o u n t y
C i r c u i t
C o u r t
o f
t h e
S t a t e
o f
A l a b a m a
f o r
f u r t h e r
p r o c e e d i n g s
i n t h e e v e n t
S e a s i d e
T i t l e [ ,
L L C , ] d i d
n o t p o s t t h e p o r t i o n o f t h e D e p o s i t owed by H o l i d a y
D e v e l o p m e n t , LLC, i n t h i s m a t t e r .
A c c o r d i n g t o t h e
r e c o r d s o f t h e A m e r i c a n
A r b i t r a t i o n
A s s o c i a t i o n , no
payment
has
b e e n
r e c e i v e d .
T h e r e f o r e ,
t h i s
a r b i t r a t i o n
p r o c e e d i n g
i s
d i s m i s s e d
w i t h o u t
p r e j u d i c e and t h i s
c a s e i s remanded t o t h e B a l d w i n
C o u n t y
C i r c u i t
C o u r t
f o r t h e S t a t e o f A l a b a m a f o r
f u r t h e r
p r o c e e d i n g s . "
I t
i s e v i d e n t
f r o m
t h e s e
two
o r d e r s
t h a t t h e
a r b i t r a t o r ' s
i n t e n t
was t o t e r m i n a t e t h e a r b i t r a t i o n
p r o c e e d i n g s b a s e d
on
H o l i d a y
D e v e l o p m e n t ' s
f a i l u r e
t o
p a y
i t s s h a r e
o f
t h e
a r b i t r a t i o n
f e e s
and t o "remand"
t h e c a s e
t o t h e
B a l d w i n
C i r c u i t
C o u r t
f o r t h e p u r c h a s e r s
t o p r o s e c u t e
t h e i r
c l a i m s
t h e r e .
The
t r i a l c o u r t was r e q u i r e d by t h e FAA t o g i v e e f f e c t t o
t h e
a r b i t r a t o r ' s
d e c i s i o n .
I t a p p e a r s
t h a t t h e
t r i a l
c o u r t
7
1081144, 1081146
was
c o g n i z a n t
o f
t h a t
f a c t ,
and
i t a t t e m p t e d
t o
do
so
by
e n t e r i n g
an
o r d e r
g r a n t i n g H o l i d a y D e v e l o p m e n t ' s " m o t i o n
t o
e n f o r c e
t h e
f i n a l
o r d e r
o f
t h e
a r b i t r a t o r "
and
s e e k i n g
d i s m i s s a l o f t h e c a s e .
H o w e v e r , a l t h o u g h
t h e
t r i a l
c o u r t
was
c o r r e c t
t h a t
t h e
a r b i t r a t o r ' s
o r d e r
s h o u l d
be
e n f o r c e d ,
i t
e r r e d
i n c o n c l u d i n g
t h a t i t c o u l d do
so by
s i m p l y
r e p e a t i n g
t h e
a c t i o n t a k e n
by
t h e
a r b i t r a t o r
and
d i s m i s s i n g t h e
c a s e .
The
p r o p e r way
f o r t h e
t r i a l c o u r t t o g i v e e f f e c t t o t h e
o r d e r
o f
t h e
a r b i t r a t o r w o u l d h a v e b e e n t o
s c h e d u l e
t h e
" f u r t h e r
p r o c e e d i n g s "
n e c e s s a r y
f o r
t h e
p u r c h a s e r s
t o
p u r s u e
t h e i r
c l a i m s
a g a i n s t
H o l i d a y
D e v e l o p m e n t
and
S e a s i d e
T i t l e .
A c c o r d i n g l y ,
t h e
t r i a l
c o u r t ' s
o r d e r
d i s m i s s i n g
t h e
p u r c h a s e r s ' c l a i m s i s r e v e r s e d and
t h e c a u s e i s remanded f o r
f u r t h e r p r o c e e d i n g s
t o g i v e t h e p u r c h a s e r s
an o p p o r t u n i t y
t o
p r o v e
t h e i r
c l a i m s
a g a i n s t
H o l i d a y D e v e l o p m e n t
and
S e a s i d e
T i t l e .
1
1 T h i s
h o l d i n g i s c o n s i s t e n t w i t h o u r
c a s e l a w
i n d i c a t i n g
t h a t , e v e n t h o u g h two p a r t i e s may h a v e c o n t r a c t u a l l y a g r e e d t o
a r b i t r a t e any d i s p u t e s t h a t a r i s e b e t w e e n them, s u c h d i s p u t e s
may
n e v e r t h e l e s s
be
r e s o l v e d
i n t h e
c o u r t
s y s t e m
i f
e i t h e r
p a r t y w a i v e s i t s r i g h t
t o c o m p e l t h e
o t h e r
t o
a r b i t r a t e i t s
c l a i m s .
As
we
e x p l a i n e d i n C o m p a n i o n
L i f e
I n s u r a n c e
Co.
v.
W h i t e s e l l
M a n u f a c t u r i n g ,
I n c . ,
670
So.
2d
8
97 ,
899
( A l a .
1 9 9 5 ) :
" I t
i s w e l l
s e t t l e d
u n d e r A l a b a m a
l a w
t h a t
a
8
1081144, 1081146
1081144 -- REVERSED AND REMANDED.
1081146 -- REVERSED AND REMANDED.
Cobb, C . J . ,
a n d L y o n s ,
B o l i n , a n d M u r d o c k , J J . , c o n c u r .
p a r t y may w a i v e
i t s r i g h t t o a r b i t r a t e a d i s p u t e
i f
i t
s u b s t a n t i a l l y
i n v o k e s t h e l i t i g a t i o n p r o c e s s a n d
t h e r e b y s u b s t a n t i a l l y p r e j u d i c e s t h e p a r t y
o p p o s i n g
a r b i t r a t i o n .
W h e t h e r a p a r t y ' s p a r t i c i p a t i o n i n
an
a c t i o n amounts t o an e n f o r c e a b l e w a i v e r o f i t s r i g h t
t o
a r b i t r a t e
d e p e n d s on w h e t h e r t h e p a r t i c i p a t i o n
b e s p e a k s o f an i n t e n t i o n
t o abandon t h e r i g h t i n
f a v o r o f t h e j u d i c i a l
p r o c e s s a n d , i f
s o , w h e t h e r
t h e
o p p o s i n g
p a r t y
w o u l d
be
p r e j u d i c e d
by
a
s u b s e q u e n t
o r d e r
r e q u i r i n g
i t t o
s u b m i t
t o
a r b i t r a t i o n .
No r i g i d
r u l e
e x i s t s f o r d e t e r m i n i n g
what c o n s t i t u t e s a w a i v e r o f t h e r i g h t t o a r b i t r a t e ;
t h e
d e t e r m i n a t i o n as t o w h e t h e r
t h e r e h a s b e e n a
w a i v e r
must,
i n s t e a d , be b a s e d
on t h e p a r t i c u l a r
f a c t s o f e a c h
c a s e . "
I n t h e p r e s e n t c a s e , H o l i d a y D e v e l o p m e n t was e x p r e s s l y t o l d
t h a t i f
i t
d i d
n o t p a y i t s s h a r e o f t h e a r b i t r a t i o n f e e s
i t s
c a s e
w o u l d be "remanded" t o t h e B a l d w i n
C i r c u i t
C o u r t f o r
f u r t h e r p r o c e e d i n g s .
W i t h t h a t k n o w l e d g e , H o l i d a y D e v e l o p m e n t
e l e c t e d n o t t o p a y t h o s e
f e e s .
I t i s h a r d t o i m a g i n e more
c l e a r
e v i d e n c e
o f an
i n t e n t
t o a b a n d o n
t h e
a r b i t r a t i o n
p r o c e s s .
9 | November 13, 2009 |
3b7aadda-1e2b-423a-8e95-144ce6f4761a | CIT Communication Finance Corporation v. McFadden, Lyon & Rouse, L.L.C. | N/A | 1060771 | Alabama | Alabama Supreme Court | REL: 10/30/09
Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l
r e v i s i o n b e f o r e
p u b l i c a t i o n i n
t h e
advance
s h e e t s o f
Southern Reporter.
R e a d e r s a r e
r e q u e s t e d t o n o t i f y t h e
Reporter of
Decisions,
Alabama
A p p e l l a t e
C o u r t s , 300 D e x t e r
Avenue, Montgomery, Alabama 36104-3741
((334)
2 2 9 - 0 6 4 9 ) , o f
any t y p o g r a p h i c a l o r o t h e r e r r o r s , i n
o r d e r t h a t c o r r e c t i o n s may be made
b e f o r e t h e
o p i n i o n i s
p r i n t e d i n
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
1060771
CIT Communication Finance C o r p o r a t i o n
v.
McFadden, Lyon & Rouse, L.L.C.
Appeal from M o b i l e C i r c u i t Court
(CV-03-2072)
PER CURIAM.
T h i s i s
t h e t h i r d
t i m e
t h e s e
p a r t i e s have b e e n
b e f o r e
t h i s C o u r t .
See
Ex p a r t e CIT
Commc'n F i n . C o r p . (No.
1 0 4 0 5 2 9 ,
J u n e 24, 2 0 0 5 ) , 926 So. 2d 381 ( A l a .
2005)
( t a b l e ) , a n d
Ex
p a r t e CIT
Commc'n F i n . C o r p . , 897
So.
2d
296 ( A l a . 2 0 0 4 ) . CIT
C o m m u n i c a t i o n
F i n a n c e
C o r p o r a t i o n
("CIT") now a p p e a l s t h e
1060771
M o b i l e
C i r c u i t
C o u r t ' s
o r d e r
c e r t i f y i n g ,
p u r s u a n t
t o
R u l e
2 3 ( b ) ( 3 ) , A l a . R. C i v . P., a n a t i o n w i d e
c l a s s o f p e r s o n s
and
e n t i t i e s who e n t e r e d i n t o a g r e e m e n t s w i t h CIT f o r t h e l e a s e o f
o f f i c e e q u i p m e n t and who
i n c u r r e d , p u r s u a n t
t o s u c h
l e a s e s ,
i n s u r a n c e
c h a r g e s
w i t h i n s i x y e a r s
p r i o r t o
J u n e 11, 2003,
t h e d a t e t h e c o m p l a i n t i n t h i s c a s e was
f i l e d .
We
a f f i r m t h e
t r i a l
c o u r t ' s c e r t i f i c a t i o n
o r d e r .
F a c t s and P r o c e d u r a l H i s t o r y
CIT
l e a s e s
o f f i c e
e q u i p m e n t
and
r e l a t e d
p r o d u c t s
t o
v a r i o u s e n t i t i e s a c r o s s t h e c o u n t r y .
I n A u g u s t 1998, t h e l a w
f i r m o f McFadden, L y o n & R o u s e , L . L . C .
("McFadden"),
e n t e r e d
i n t o a s t a n d a r d
l e a s e a g r e e m e n t w i t h C I T , p u r s u a n t
t o w h i c h
McFadden
l e a s e d t e l e p h o n e e q u i p m e n t f o r 60 months a t t h e r a t e
o f $272.22 p e r month.
The l e a s e a g r e e m e n t r e q u i r e d McFadden
t o
m a i n t a i n
i n s u r a n c e
on t h e t e l e p h o n e
e q u i p m e n t b u t
a l s o
p r o v i d e d
t h a t ,
i f McFadden
f a i l e d
t o
p r o v i d e
p r o o f
o f
i n s u r a n c e t o C I T , CIT c o u l d c h o o s e t o o b t a i n i n s u r a n c e on t h e
e q u i p m e n t . More s p e c i f i c a l l y , t h e l e a s e a g r e e m e n t
p r o v i d e d :
"You
a r e
r e q u i r e d
t o
p r o v i d e
and
m a i n t a i n
i n s u r a n c e
r e l a t e d t o t h e E q u i p m e n t
2
1060771
"6.
INSURANCE.
You w i l l
p r o v i d e and m a i n t a i n
a t
y o u r e x p e n s e (a) p r o p e r t y
i n s u r a n c e
a g a i n s t t h e
l o s s ,
t h e f t , o r d e s t r u c t i o n o f , o r damage t o , t h e
E q u i p m e n t f o r i t s f u l l
r e p l a c e m e n t
v a l u e , n a m i n g us
as
l o s s p a y e e , and (b) p u b l i c
l i a b i l i t y and
t h i r d
p a r t y p r o p e r t y i n s u r a n c e , n a m i n g us as an a d d i t i o n a l
i n s u r e d .
You
w i l l
g i v e us
c e r t i f i c a t e s
o r
o t h e r
e v i d e n c e
o f s u c h
i n s u r a n c e when
r e q u e s t e d .
S u c h
i n s u r a n c e
w i l l
be
i n a
f o r m ,
amount
and
w i t h
c o m p a n i e s a c c e p t a b l e t o u s , and w i l l p r o v i d e t h a t we
w i l l
be
g i v e n
30
d a y s
a d v a n c e
n o t i c e
o f
any
c a n c e l l a t i o n o r m a t e r i a l c h a n g e o f s u c h
i n s u r a n c e .
I f
you
do
n o t
g i v e
us
e v i d e n c e
o f
i n s u r a n c e
a c c e p t a b l e
t o u s , we have t h e r i g h t , b u t n o t t h e
o b l i g a t i o n ,
t o
o b t a i n
i n s u r a n c e
c o v e r i n g
o u r
i n t e r e s t
i n t h e E q u i p m e n t
f o r t h e t e r m
o f
t h i s
L e a s e ,
i n c l u d i n g any r e n e w a l s o r e x t e n s i o n s , f r o m an
i n s u r e r o f o u r c h o i c e , i n c l u d i n g an i n s u r e r t h a t i s
o u r
a f f i l i a t e .
We may a d d t h e c o s t s o f a c q u i r i n g
and m a i n t a i n i n g s u c h
i n s u r a n c e and o u r f e e s f o r
o u r
s e r v i c e s i n p l a c i n g and m a i n t a i n i n g s u c h
i n s u r a n c e
( c o l l e c t i v e l y ,
' I n s u r a n c e
C h a r g e ' ) t o t h e amounts
due
f r o m you u n d e r
t h i s
L e a s e .
You
w i l l
p a y t h e
I n s u r a n c e C h a r g e i n e q u a l i n s t a l l m e n t s a l l o c a t e d t o
t h e
r e m a i n i n g
L e a s e
P a y m e n t s .
I f we
p u r c h a s e
i n s u r a n c e ,
you
w i l l
c o o p e r a t e
w i t h o u r
i n s u r a n c e
a g e n t w i t h r e s p e c t t o t h e p l a c e m e n t o f i n s u r a n c e and
t h e
p r o c e s s i n g o f c l a i m s .
N o t h i n g
i n t h i s
L e a s e
w i l l
c r e a t e an i n s u r a n c e
r e l a t i o n s h i p o f any
t y p e
b e t w e e n us and any o t h e r
p e r s o n .
You a c k n o w l e d g e
t h a t we a r e n o t r e q u i r e d t o s e c u r e o r m a i n t a i n any
i n s u r a n c e , a n d we
w i l l n o t be
l i a b l e t o you i f we
t e r m i n a t e any i n s u r a n c e
c o v e r a g e
t h a t we
a r r a n g e .
I f we r e p l a c e o r renew any i n s u r a n c e
c o v e r a g e ,
we
a r e n o t o b l i g a t e d t o p r o v i d e r e p l a c e m e n t
o r
r e n e w a l
c o v e r a g e
u n d e r t h e same
t e r m s ,
c o s t s ,
l i m i t s ,
o r
c o n d i t i o n s as t h e p r e v i o u s
c o v e r a g e . "
3
1060771
( E m p h a s i s added.) The l e a s e a g r e e m e n t a l s o c o n t a i n e d a c h o i c e -
o f - l a w c l a u s e p r o v i d i n g t h a t t h e a g r e e m e n t was t o be g o v e r n e d
by t h e l a w s o f t h e S t a t e o f New
J e r s e y .
S h o r t l y a f t e r e n t e r i n g i n t o t h e l e a s e a g r e e m e n t w i t h C I T ,
McFadden
r e c e i v e d a l e t t e r
f r o m CIT d a t e d A u g u s t 13, 1 9 9 8 ,
w h i c h s t a t e d , i n p e r t i n e n t
p a r t :
" I n s i d e t h e
e n c l o s e d
' I n f o p a c k ' you w i l l
f i n d an
i n f o r m a t i o n c a r d t i t l e d
' I n s u r i n g L e a s e d
E q u i p m e n t , '
w h i c h e x p l a i n s AT&T C r e d i t C o r p o r a t i o n ' s
[ 1 ]
P r o p e r t y
I n s u r a n c e P r o g r a m .
U n d e r t h i s p r o g r a m , t h e c o s t o f
i n s u r i n g
t h e l e a s e d
e q u i p m e n t
i s i n c l u d e d as an
a d d i t i o n a l
c h a r g e
i n e a c h
o f y o u r
m o n t h l y
l e a s e
i n v o i c e s .
However, a c c o r d i n g t o t h e p r o v i s i o n s o f
y o u r
l e a s e
a g r e e m e n t ,
y o u may
o b t a i n a n d
p r o v i d e
p r o o f t o us o f y o u r own p r o p e r t y i n s u r a n c e
c o v e r a g e ,
n a m i n g AT&T C r e d i t C o r p o r a t i o n as l o s s p a y e e
d u r i n g
t h e t e r m o f y o u r l e a s e
"
The
" I n f o p a c k " c o n t a i n e d t h e f o l l o w i n g p r o v i s i o n s :
" P o i n t s
To
Remember
A b o u t
Y o u r
AT&T
L e a s i n g
C o n t r a c t :
" I n s u r a n c e : The c u s t o m e r
( l e s s e e )
i s r e q u i r e d t o
p r o v i d e a n d m a i n t a i n
i n s u r a n c e
c o v e r a g e a g a i n s t t h e
l o s s ,
t h e f t ,
damage
o r
d e s t r u c t i o n
o f
l e a s e d
e q u i p m e n t
f o r i t s f u l l
r e p l a c e m e n t
v a l u e ,
n a m i n g
AT&T C r e d i t C o r p o r a t i o n
( l e s s o r ) as l o s s p a y e e .
The
c u s t o m e r i s a l s o r e q u i r e d t o h a v e g e n e r a l
l i a b i l i t y
i n s u r a n c e .
1 C I T was f o r m e r l y known as AT&T C r e d i t
C o r p o r a t i o n .
4
1060771
" I n s u r i n g L e a s e d E q u i p m e n t [ : ]
"One
o f t h e t e r m s o f t h e AT&T C r e d i t
C o r p o r a t i o n
L e a s e
A g r e e m e n t
r e q u i r e s
t h a t
you
p r o v i d e
a n d
m a i n t a i n i n s u r a n c e a g a i n s t t h e l o s s ,
t h e f t , damage,
and
d e s t r u c t i o n o f t h e l e a s e d
e q u i p m e n t .
S u c h
c o v e r a g e must be f o r
t h e f u l l
r e p l a c e m e n t
v a l u e a n d
name AT&T C r e d i t C o r p o r a t i o n as a l o s s p a y e e .
"We h a v e a c q u i r e d o u r own p r o p e r t y i n s u r a n c e
p o l i c y
t h r o u g h
o u r l e a s e d
e q u i p m e n t
i n s u r a n c e
manager,
L e a s e
I n s u r a n c e
A g e n c y
S e r v i c e s
C o r p o r a t i o n , t o
p r o t e c t t h e l e a s e d e q u i p m e n t . Our p r o p e r t y c o v e r a g e
w i l l
be
u s e d
t o
s a t i s f y
t h e
l e a s e
c o v e r a g e
r e q u i r e m e n t
i f
you do n o t p r o v i d e p r o o f o f y o u r own
p r o p e r t y i n s u r a n c e w i t h i n t h e t i m e r e q u i r e d . "
The
" I n f o p a c k "
a l s o
c o n t a i n e d
i n f o r m a t i o n
r e l a t i n g
t o t h e
t y p e s o f l o s s e s c o v e r e d by t h e
C I T - p r o v i d e d
i n s u r a n c e , as w e l l
as c o v e r a g e f e a t u r e s a n d t h e
m o n t h l y c h a r g e s
f o r t h e c o v e r a g e .
M c F a d d e n l a t e r r e c e i v e d a l e t t e r f r o m CIT d a t e d S e p t e m b e r
4, 1998, w h i c h s t a t e d , i n p e r t i n e n t p a r t :
"As
you know,
one o f t h e t e r m s
o f o u r
L e a s e
A g r e e m e n t
r e q u i r e s
t h a t
you
m a i n t a i n
i n s u r a n c e
a g a i n s t l o s s , damage, d e s t r u c t i o n , a n d t h e f t f o r t h e
r e p l a c e m e n t
v a l u e o f t h e l e a s e d e q u i p m e n t ,
n a m i n g
AT&T C r e d i t C o r p o r a t i o n as ' l o s s p a y e e . '
You c a n
s a t i s f y
t h i s
r e q u i r e m e n t
by
o b t a i n i n g
y o u r
own
i n s u r a n c e o r by t a k i n g a d v a n t a g e o f t h e c o v e r a g e
w h i c h AT&T
C r e d i t h a s a r r a n g e d
f o r t h e e q u i p m e n t
u n d e r
i t s own i n s u r a n c e
p o l i c y .
You c a n e x e r c i s e
e i t h e r o f t h e o p t i o n s d e s c r i b e d b e l o w .
" 1 .
I n s u r e
E q u i p m e n t
U n d e r
AT&T
C r e d i t ' s P r o p e r t y I n s u r a n c e
P o l i c y .
S i n c e
many c u s t o m e r s p r e f e r n o t t o o b t a i n
t h e i r
own
c o v e r a g e on t h e l e a s e d e q u i p m e n t , AT&T
5
1060771
C r e d i t h a s p r o c u r e d
i t s own c o v e r a g e w h i c h
s a t i s f i e s
t h e
p r o p e r t y
i n s u r a n c e
r e q u i r e m e n t
c o n t a i n e d
i n y o u r
l e a s e
U n l e s s
you
d e c i d e
t o
o b t a i n
y o u r
own
p o l i c y ,
t h e e q u i p m e n t
i s a u t o m a t i c a l l y
c o v e r e d
u n d e r AT&T C r e d i t ' s p o l i c y as o f
t h e
d a t e you a c c e p t t h e e q u i p m e n t . . . . I f
you e l e c t t h i s o p t i o n by n o t a c q u i r i n g y o u r
own
i n s u r a n c e
p o l i c y ,
w e ' l l
a d d $ 1 5 . 1 5 ,
w h i c h
i n c l u d e s t h e i n s u r a n c e p r e m i u m a n d
o t h e r
r e l a t e d
c h a r g e s ,
t o e a c h o f
y o u r
m o n t h l y l e a s e
i n v o i c e s .
"2. Use Y o u r Own
I n s u r a n c e
C a r r i e r .
I f
you w i s h
t o u s e
y o u r
own
p r o p e r t y
i n s u r a n c e on t h e l e a s e d e q u i p m e n t ,
s i m p l y
h a v e y o u r a g e n t o r b r o k e r
c a l l o u r l e a s e d
e q u i p m e n t
i n s u r a n c e
manager,
L e a s e
I n s u r a n c e
A g e n c y S e r v i c e s C o r p o r a t i o n
I f
y o u r
a g e n t o r b r o k e r
d o e s n o t c o n f i r m
y o u r
p r o p e r t y
i n s u r a n c e
c o v e r a g e on t h e
e q u i p m e n t
w i t h i n 30 d a y s o f t h e d a t e o f
t h i s
l e t t e r , t h e e q u i p m e n t w i l l be i n s u r e d
u n d e r
AT&T
C r e d i t ' s
p r o p e r t y
i n s u r a n c e
p o l i c y . "
M c F a d d e n
n e v e r
p r o v i d e d
CIT w i t h
p r o o f
t h a t
i t
h a d
a c q u i r e d
i t s
own
i n s u r a n c e
a n d , t h e r e f o r e , was
b i l l e d a
m o n t h l y
c h a r g e
o f $ 1 5 . 1 5
f o r t h e C I T - p l a c e d
i n s u r a n c e .
M c F a d d e n p a i d t h e m o n t h l y c h a r g e w i t h o u t
o b j e c t i o n f o r t h e
t e r m o f t h e l e a s e .
The
C I T - p l a c e d
i n s u r a n c e ,
a c c o r d i n g
t o
M c F a d d e n ,
c o n s i s t e d o f two i n s u r a n c e p r o g r a m s : (1) t h e P r e m i e r
p r o g r a m
and (2) t h e A m e r i c a n B a n k e r s p r o g r a m .
I n November 1988,
CIT
6
1060771
had
e n t e r e d
i n t o
an
a g r e e m e n t
w i t h P r e m i e r
L e a s e
and
L o a n
S e r v i c e s
( " P r e m i e r " )
2 w h e r e b y P r e m i e r became t h e manager
o f
t h e C I T - p l a c e d i n s u r a n c e p r o g r a m . As manager, P r e m i e r had
t h e
a u t h o r i t y t o p l a c e and t o c a n c e l P r e m i e r c o v e r a g e
f o r l e a s e d
CIT e q u i p m e n t , t o
b i l l
and t o c o l l e c t i n s u r a n c e c h a r g e s
f r o m
CIT c u s t o m e r s ,
and t o a d m i n i s t e r r e p o r t s o f l o s s o r damage t o
t h e CIT e q u i p m e n t .
M c F a d d e n s t a t e s t h a t P r e m i e r c h a r g e d
CIT
a f e e f o r t h e s e s e r v i c e s t h a t was p a s s e d on t o CIT
c u s t o m e r s .
A l s o ,
p u r s u a n t
t o
t h e
a g r e e m e n t
b e t w e e n
P r e m i e r
and
C I T ,
P r e m i e r a p p o i n t e d CIT as i t s s u b c o n t r a c t o r t o p e r f o r m
c e r t a i n
s e r v i c e s ,
s u c h
as
c o l l e c t i n g
and
t r a n s m i t t i n g
o f
c u s t o m e r
i n f o r m a t i o n t o P r e m i e r and
b i l l i n g ,
c o l l e c t i n g , and
r e m i t t i n g
o f t h e i n s u r a n c e c h a r g e s .
M c F a d d e n s t a t e s
t h a t , i n a d d i t i o n t o t h e m o n t h l y
c h a r g e
f o r t h e l e a s e d e q u i p m e n t , t h e CIT c u s t o m e r
was
b i l l e d
f o r an
i n s u r a n c e p r e m i u m , a f i n a n c e c h a r g e by a t h i r d - p a r t y l e n d e r ,
and an a d m i n i s t r a t i o n f e e c h a r g e d by P r e m i e r f o r s e r v i c e s i t
p e r f o r m e d
as
manager
o f
t h e
i n s u r a n c e p r o g r a m .
M c F a d d e n
s t a t e s
t h a t
P r e m i e r , p u r s u a n t
t o t h e s u b c o n t r a c t w i t h
C I T ,
r e t u r n e d
t h e m a j o r i t y o f t h e
a d m i n i s t r a t i o n
f e e t o C I T ,
so
2 P r e m i e r was
f o r m e r l y known as L e a s e
I n s u r a n c e S e r v i c e s
C o r p o r a t i o n .
7
1060771
t h a t
CIT
r e c e i v e d
$4.00
p e r
month
p e r
l e a s e
o f
t h e
a d m i n i s t r a t i o n f e e as a " s u b c o n t r a c t f e e " and P r e m i e r r e t a i n e d
o n l y 12.5
c e n t s o f t h e a d m i n i s t r a t i o n f e e .
M c F a d d e n a l l e g e s
t h a t t h e $4.00 s u b c o n t r a c t
f e e c h a r g e d
b y
CIT
had
no
d i r e c t
c o r r e l a t i o n
t o C I T ' s
a c t u a l c o s t s
o f p e r f o r m i n g
i t s d u t i e s
u n d e r i t s s u b c o n t r a c t w i t h
P r e m i e r .
M c F a d d e n
c o n t e n d s
t h a t
CIT
p r o f i t e d
f r o m
t h e
P r e m i e r
p r o g r a m .
The
i n s u r a n c e
p r o v i d e d
t o
c u s t o m e r s
u n d e r
t h a t
p r o g r a m
was
u n d e r w r i t t e n
by
N a t i o n a l U n i o n
F i r e
I n s u r a n c e
Company ( " N a t i o n a l " ) .
N a t i o n a l e n t e r e d
i n t o
a
r e i n s u r a n c e
a g r e e m e n t w i t h E q u i p m e n t I n s u r a n c e Company ( " E I C " ) ,
a w h o l l y
owned s u b s i d i a r y o f CIT,
a l l e g e d l y p a s s i n g t h e e n t i r e r i s k
o f
l o s s
t o
E I C .
H o w e v e r ,
a c c o r d i n g
t o
M c F a d d e n ,
E I C
t h e n
r e t u r n e d
t o
N a t i o n a l
t h e
m a j o r i t y
o f
t h e
r i s k
u n d e r
t h e
P r e m i e r
p r o g r a m .
I n
November
1998,
CIT
e n t e r e d
i n t o
an
a g r e e m e n t
w i t h
A m e r i c a n
B a n k e r s
I n s u r a n c e
Company
o f
F l o r i d a
( " A m e r i c a n
B a n k e r s " ) ,
b y
w h i c h
A m e r i c a n
B a n k e r s
a g r e e d
t o
p r o v i d e
i n s u r a n c e c o v e r a g e f o r C I T ' s l e a s e d e q u i p m e n t .
3 When A m e r i c a n
B a n k e r s t o o k o v e r C I T ' s i n s u r a n c e p r o g r a m , t h e r e was no c h a n g e
3 A s
an
e x i s t i n g c u s t o m e r , M c F a d d e n was
b r o u g h t
i n t o
t h e
A m e r i c a n B a n k e r s p r o g r a m .
8
1060771
i n
t h e amount
c u s t o m e r s
were
c h a r g e d
f o r t h e
i n s u r a n c e .
I n i t i a l l y , t h e a d m i n i s t r a t i o n
f e e and t h e i n s u r a n c e
p r e m i u m
w e r e
c o m b i n e d
i n t o
one
c h a r g e
d e s i g n a t e d
on a
c u s t o m e r ' s
i n v o i c e as t h e " I n s u r a n c e C h a r g e . "
McFadden a l l e g e s t h a t CIT
l a t e r
d i r e c t e d
A m e r i c a n
B a n k e r s
t o
" b r e a k
o u t
t h e
f e e
s e p a r a t e l y
f r o m t h e p r e m i u m "
and t o r e m i t
t o CIT a
$6.00
a d m i n i s t r a t i o n f e e w h i l e r e d u c i n g t h e i n s u r a n c e p r e m i u m b y t h e
same amount. A c c o r d i n g
t o M c F a d d e n , t h e $6.00
a d m i n i s t r a t i o n
f e e h a d no d i r e c t c o r r e l a t i o n t o C I T ' s c o s t s o f p e r f o r m i n g
i t s
d u t i e s u n d e r t h e A m e r i c a n B a n k e r s p r o g r a m .
F u r t h e r ,
a c c o r d i n g
t o M c F a d d e n , CIT has
a c k n o w l e d g e d t h a t t h e a d m i n i s t r a t i o n f e e
w o u l d be i m p o s s i b l e
t o
j u s t i f y .
McFadden
c o n t e n d s
t h a t ,
u n d e r
t h e
A m e r i c a n
B a n k e r s
p r o g r a m , A m e r i c a n B a n k e r s t r a n s f e r r e d t h e r i s k t h a t i t i n s u r e d
t o H i g h l a n d s I n s u r a n c e Company ( " H i g h l a n d s " ) , a w h o l l y
owned
s u b s i d i a r y o f C I T .
T h e n , a c c o r d i n g
t o M c F a d d e n , H i g h l a n d s
r e t u r n e d
t h e m a j o r i t y
o f t h e r i s k t o A m e r i c a n B a n k e r s , b u t
r e t a i n e d most o f t h e p r e m i u m p a i d u n d e r t h e p o l i c y .
M c F a d d e n ,
i n
i t s i n d i v i d u a l
c a p a c i t y
a n d
as
t h e
r e p r e s e n t a t i v e
o f a p u t a t i v e
c l a s s , s u e d C I T , a l l e g i n g
t h a t
CIT h a d i m p o s e d on i t
and t h e p u t a t i v e c l a s s i n s u r a n c e
c h a r g e s
9
1060771
t h a t e x c e e d e d t h e c u s t o m a r y c o s t s o f
i n s u r a n c e
and
t h e
c o s t s
a s s o c i a t e d
w i t h
p r o c u r i n g
and
a d m i n i s t e r i n g
t h e
i n s u r a n c e .
McFadden
a l l e g e d
t h a t
t h e
c h a r g e s
f o r
t h e
i n s u r a n c e
w e r e
u n r e a s o n a b l e , u n n e c e s s a r y , and
e x c e s s i v e ;
t h a t C I T ' s p r a c t i c e
o f c h a r g i n g
e x c e s s i v e
and u n r e a s o n a b l e f e e s
f o r t h e p l a c e m e n t
o f i n s u r a n c e
was
i n t e n d e d
t o g e n e r a t e i n c r e a s e d
p r o f i t s ;
and
t h a t t h e p r a c t i c e o f c h a r g i n g
e x c e s s i v e
f e e s was
n o t
d i s c l o s e d
i n o r a u t h o r i z e d
by
t h e t e r m s o f t h e l e a s e . McFadden
a s s e r t e d
t h a t C I T ' s a c t i o n s c o n s t i t u t e d a b r e a c h o f t h e l e a s e a g r e e m e n t
and
v i o l a t e d t h e
i m p l i e d c o v e n a n t
o f g o o d
f a i t h .
4
McFadden
e x p l a i n e d
t h e
l a t t e r
c l a i m i n more
d e t a i l :
"As
a
p a r t y
g r a n t e d
t h e
c o n t r a c t u a l
r i g h t
t o
p u r c h a s e i n s u r a n c e
on t h e l e a s e d p r o p e r t y ,
t h e
r i g h t
c a r r i e d
w i t h
i t t h e
o b l i g a t i o n
o f
g o o d
f a i t h
and
f a i r
d e a l i n g ,
and
b e c a u s e
[ C I T ]
made
c e r t a i n
a f f i r m a t i v e
s t a t e m e n t s
p r o m o t i n g
t h e
s a l e
o f
t h e
i n s u r a n c e ,
[ C I T ] was
o b l i g a t e d t o s t a t e a l l m a t e r i a l
f a c t s , i n c l u d i n g t h e f a c t s r e l a t e d t o t h e p r i c i n g
o f
i n s u r a n c e
and
t h e
h i d d e n
p r o f i t s
t a k e n
by
[ C I T ]
t h r o u g h i t s v a r i o u s r e i n s u r a n c e
a g r e e m e n t s and
o t h e r
c o n t r a c t u a l
a g r e e m e n t s . "
CIT
a n s w e r e d
t h e
c o m p l a i n t ,
g e n e r a l l y
d e n y i n g
t h e
m a t e r i a l a v e r m e n t s and a s s e r t i n g c e r t a i n a f f i r m a t i v e d e f e n s e s ,
i n c l u d i n g w a i v e r ,
e s t o p p e l ,
r a t i f i c a t i o n ,
a c q u i e s c e n c e ,
and
4 M c F a d d e n
i n i t i a l l y
a s s e r t e d
a
c l a i m
o f
f r a u d u l e n t
s u p p r e s s i o n
b u t
e v e n t u a l l y a b a n d o n e d i t s e f f o r t s t o c e r t i f y
a
c l a s s as
t o t h a t
c l a i m .
10
1060771
v o l u n t a r y p a y m e n t .
CIT
a l s o moved t h e
t r i a l
c o u r t t o
d i s m i s s
M c F a d d e n ' s
c l a s s
c l a i m s
b e c a u s e ,
i t a r g u e d ,
McFadden
had
f a i l e d
t o s t a t e a c l a i m upon w h i c h
r e l i e f c o u l d be
g r a n t e d .
The
t r i a l
c o u r t
d e n i e d
C I T ' s
m o t i o n
t o
d i s m i s s
t h e
c l a s s
c l a i m s . CIT
t h e n amended i t s a n s w e r t o r e s p o n d t o M c F a d d e n ' s
c l a s s
a l l e g a t i o n s .
McFadden moved t h e
t r i a l
c o u r t
t o
c e r t i f y ,
p u r s u a n t
t o
R u l e 2 3 ( b ) ( 3 ) , A l a . R. C i v . P.,
a n a t i o n w i d e
c l a s s o f " p e r s o n s
and
e n t i t i e s
who
h a v e o r h a v e had
a l e a s e a g r e e m e n t s e r v i c e d
by
[ C I T ] ,
and
who
i n c u r r e d i n s u r a n c e
c h a r g e s [ f o r t h e
C I T -
p l a c e d
i n s u r a n c e ]
w i t h i n
s i x y e a r s
o f
t h e
f i l i n g
o f
t h i s
c o m p l a i n t . "
McFadden
a l s o
s o u g h t
c e r t i f i c a t i o n
o f
two
s u b c l a s s e s : (1) t h o s e c u s t o m e r s w i t h i n s u r a n c e p l a c e d
t h r o u g h
t h e
P r e m i e r
p r o g r a m ,
and
(2)
t h o s e
w i t h
i n s u r a n c e
p l a c e d
t h r o u g h
t h e A m e r i c a n B a n k e r s p r o g r a m .
CIT
f i l e d
a m o t i o n
f o r
a summary j u d g m e n t .
M c F a d d e n
moved t h e
t r i a l
c o u r t t o c o n t i n u e any h e a r i n g on C I T ' s m o t i o n
u n t i l
a f t e r t h e r e s o l u t i o n o f t h e
c l a s s - c e r t i f i c a t i o n
i s s u e .
The
t r i a l
c o u r t g r a n t e d M c F a d d e n ' s m o t i o n .
CIT
f i l e d
a
b r i e f
and
e v i d e n t i a r y
s u b m i s s i o n
i n
o p p o s i t i o n
t o c l a s s c e r t i f i c a t i o n .
A l s o , p u r s u a n t
t o §
6-5-
11
1060771
6 4 1 ( d ) , A l a . Code 1975,
i t r e q u e s t e d
an e v i d e n t i a r y
h e a r i n g .
A f t e r an e v i d e n t i a r y h e a r i n g ,
t h e
t r i a l c o u r t e n t e r e d
an
o r d e r
f i n d i n g t h a t McFadden had
s a t i s f i e d t h e t h r e s h o l d r e q u i r e m e n t s
f o r
c l a s s c e r t i f i c a t i o n
p u r s u a n t t o R u l e 2 3 ( a ) ,
A l a . R.
C i v .
P.,
and
t h a t c l a s s c e r t i f i c a t i o n
as r e q u e s t e d
by McFadden
was
p r o p e r u n d e r R u l e 2 3 ( b ) ( 3 ) ,
A l a . R.
C i v . P.
The
t r i a l
c o u r t
c e r t i f i e d
t h e
f o l l o w i n g c l a i m s
f o r c l a s s t r e a t m e n t :
(1)
t h e
c l a i m t h a t CIT b r e a c h e d t h e l e a s e a g r e e m e n t d u r i n g t h e P r e m i e r
p r o g r a m
by
r e t a i n i n g
f e e s
n o t
a u t h o r i z e d
by
t h e
l e a s e
a g r e e m e n t ; (2) t h e c l a i m t h a t CIT b r e a c h e d t h e l e a s e a g r e e m e n t
d u r i n g
t h e
A m e r i c a n
B a n k e r s
p r o g r a m
by
c h a r g i n g
an
u n r e a s o n a b l e f e e i n v i o l a t i o n
o f New
J e r s e y
l a w ;
and
(3)
t h e
c l a i m t h a t CIT b r e a c h e d t h e i m p l i e d c o v e n a n t o f good f a i t h
i n
t h e
manner
i n
w h i c h
i t
e s t a b l i s h e d
and
a d m i n i s t e r e d
t h e
i n s u r a n c e
p r o g r a m s . CIT
a p p e a l s t h a t
c e r t i f i c a t i o n .
S t a n d a r d o f R e v i e w
" ' T h i s C o u r t a p p l i e s an a b u s e - o f - d i s c r e t i o n
[
5
] s t a n d a r d
o f
r e v i e w
t o
a
t r i a l
c o u r t ' s
c l a s s - c e r t i f i c a t i o n
o r d e r ,
b u t
we
5 T h i s C o u r t now
p h r a s e s t h e q u e s t i o n
i n t e r m s o f w h e t h e r
a
t r i a l
c o u r t " e x c e e d e d " i t s d i s c r e t i o n ,
r a t h e r t h a n w h e t h e r
t h e
t r i a l
c o u r t
" a b u s e d "
i t s d i s c r e t i o n .
The
s t a n d a r d
o f
r e v i e w
r e m a i n s
t h e
same.
See
C l a s s r o o m d i r e c t . c o m ,
LLC
v.
D r a p h i x , LLC,
992
So.
2d
692,
701
n.1
( A l a . 2 0 0 8 ) ; K y s e r
v.
H a r r i s o n ,
90 8 So.
2d
914
( A l a . 2 0 0 5 ) ;
and
Ex
p a r t e
F a m i l y
D o l l a r
S t o r e s
o f A l a b a m a ,
I n c . ,
906
So.
2d
8
92 ,
8
99
( A l a .
2 0 0 5 ) .
12
1060771
w i l l
r e v i e w
de
novo
t h e
q u e s t i o n
w h e t h e r
t h e
t r i a l
c o u r t
a p p l i e d t h e c o r r e c t l e g a l
s t a n d a r d
i n r e a c h i n g
i t s d e c i s i o n t o
c e r t i f y a c l a s s . ' "
A l f a
L i f e I n s . C o r p . v. Hughes, 861
So.
2d
1088,
1094
( A l a . 2003)
( q u o t i n g Smart
P r o f ' l P h o t o c o p y C o r p .
v.
C h i l d e r s - S i m s ,
850
So.
2d
1245,
1248
( A l a . 2 0 0 2 ) ) .
The
p a r t y s e e k i n g
c e r t i f i c a t i o n has
t h e b u r d e n o f p r o v i n g
t h a t i t
i s
e n t i t l e d
t o c l a s s c e r t i f i c a t i o n .
§ 6 - 5 - 6 4 1 ( e ) , A l a . Code
1975.
" [ A ] n
a b u s e
o f
d i s c r e t i o n
i n
c e r t i f y i n g
a
c l a s s
a c t i o n may
be p r e d i c a t e d upon a s h o w i n g by t h e
p a r t y
s e e k i n g
t o h a v e
t h e
c l a s s - c e r t i f i c a t i o n
o r d e r
s e t
a s i d e
t h a t
' t h e
p a r t y
s e e k i n g
c l a s s
a c t i o n
c e r t i f i c a t i o n
f a i l e d t o c a r r y t h e b u r d e n o f
p r o d u c i n g
s u f f i c i e n t
e v i d e n c e
t o
s a t i s f y
t h e
r e q u i r e m e n t s
o f
R u l e
2 3 . ' "
Compass Bank v. Snow, 823
So.
2d 667,
672
( A l a . 2001)
( q u o t i n g
Ex
p a r t e
G r e e n T r e e F i n . C o r p . ,
684
So.
2d
1302,
1307
( A l a .
1 9 9 6 ) ) .
I s s u e s
CIT
r a i s e s
t h r e e
m a i n
i s s u e s
i n
i t s a p p e l l a t e
b r i e f .
F i r s t ,
CIT
a r g u e s
t h a t
t h e
t r i a l
c o u r t
d i d n o t
p e r f o r m
t h e
r e q u i r e d
r i g o r o u s
a n a l y s i s
b e f o r e
c e r t i f y i n g
t h e
c l a s s .
S e c o n d , CIT
a r g u e s t h a t
t h e
t r i a l
c o u r t
e r r e d by
f a i l i n g
t o
a d d r e s s M c F a d d e n ' s
s t a n d i n g
as
a
t h r e s h o l d
i s s u e
t o
c l a s s
13
1060771
c e r t i f i c a t i o n .
T h i r d , CIT
a r g u e s t h a t t h e
t r i a l
c o u r t
e r r e d
i n f i n d i n g t h a t McFadden had
s a t i s f i e d
t h e R u l e 2 3 ( a )
and
R u l e
2 3 ( b ) ( 3 ) ,
A l a .
R.
C i v .
P.,
r e q u i r e m e n t s
f o r
c l a s s
c e r t i f i c a t i o n .
A n a l y s i s
I .
CIT
f i r s t
a r g u e s
t h a t
t h e
t r i a l
c o u r t ' s
c e r t i f i c a t i o n
o r d e r
i s due
t o be
r e v e r s e d
b e c a u s e ,
a c c o r d i n g
t o
CIT,
t h e
t r i a l
c o u r t
f a i l e d
t o c o n d u c t t h e
r i g o r o u s
a n a l y s i s
r e q u i r e d
b e f o r e
a c l a s s may
be
c e r t i f i e d .
See § 6 - 5 - 6 4 1 ( e ) , A l a . Code
1975
("When
d e c i d i n g
w h e t h e r
a
r e q u e s t e d
c l a s s
i s
t o
be
c e r t i f i e d ,
t h e c o u r t
s h a l l d e t e r m i n e , by e m p l o y i n g a
r i g o r o u s
a n a l y s i s ,
i f t h e
p a r t y
...
r e q u e s t i n g
c l a s s
c e r t i f i c a t i o n
[ h a s ] p r o v e d i t s ...
e n t i t l e m e n t
t o c l a s s c e r t i f i c a t i o n
u n d e r
A l a .
R.
C i v . P.
2 3 . " ) .
T h i s C o u r t has
s t a t e d :
" ' [ C ] l a s s
a c t i o n s
may
n o t
be
a p p r o v e d
l i g h t l y
and
...
t h e
d e t e r m i n a t i o n
o f w h e t h e r t h e
p r e r e q u i s i t e s
o f R u l e 23 h a v e b e e n s a t i s f i e d
r e q u i r e s a
" r i g o r o u s
a n a l y s i s . " '
Ex
p a r t e
C i t i c o r p
A c c e p t a n c e
Co.,
715
So.
2d
199,
203
( A l a .
1
9 9 7 ) ;
see
a l s o
§
6-5-641,
A l a . Code 1975.
The
p l a i n t i f f must o f f e r
s u f f i c i e n t
e v i d e n c e o f t h e R u l e 23
c r i t e r i a ;
t h i s e v i d e n c e must
be
r e f e r e n c e d
i n
t h e
t r i a l
c o u r t ' s
o r d e r
b e f o r e
c l a s s
c e r t i f i c a t i o n
i s
p r o p e r . "
14
1060771
B i l l
H e a r d C h e v r o l e t
Co.
v. Thomas, 819
So.
2d
34,
40
( A l a .
2 0 0 1 ) .
I n B i l l H e a r d , we
d i r e c t e d t h e
t r i a l
c o u r t t o v a c a t e i t s
c l a s s - c e r t i f i c a t i o n
o r d e r ,
h o l d i n g
t h a t
t h e
t r i a l
c o u r t
had
n o t c o n d u c t e d t h e r e q u i r e d r i g o r o u s a n a l y s i s .
As p a r t o f t h a t
d e c i s i o n , we
n o t e d
t h a t
" t h e
n i n e - p a g e
o r d e r
c o n d i t i o n a l l y g r a n t i n g
c l a s s
c e r t i f i c a t i o n
was
d r a f t e d ,
n o t
by
t h e
t r i a l
j u d g e ,
b u t by c o u n s e l
f o r t h e p l a i n t i f f s . W h i l e t h i s
f a c t ,
s t a n d i n g
a l o n e , does n o t c o m p e l t h e c o n c l u s i o n
t h a t
t h e
t r i a l
c o u r t d i d n o t c o n d u c t a r i g o r o u s
a n a l y s i s
o f
t h e
e v i d e n c e
p r e s e n t e d
i n
s u p p o r t
o f
c l a s s
c e r t i f i c a t i o n ,
we
s t r o n g l y d i s c o u r a g e
t h i s
p r a c t i c e
i n
t h e
c o n t e x t
o f
c l a s s - c e r t i f i c a t i o n
o r d e r s .
We
n o t e t h a t
§ 6 - 5 - 6 4 1 ( e ) [ , A l a . Code 1975,] and
R u l e
23, A l a . R.
C i v . P.,
i m p o s e upon t h e
t r i a l j u d g e
t h e
d u t y
t o
c o n d u c t
a
r i g o r o u s
a n a l y s i s ,
and
we
h o l d
t h a t
t h i s d u t y i s n o n d e l e g a b l e , e v e n i n t h e c a s e
o f
a c o n d i t i o n a l c e r t i f i c a t i o n . "
B i l l H e a r d , 819
So.
2d a t
41.
CIT
a r g u e s t h a t ,
l i k e t h e o r d e r
i n B i l l H e a r d , t h e
t r i a l
c o u r t ' s
c l a s s - c e r t i f i c a t i o n
o r d e r
i n
t h i s
c a s e
d o e s
n o t
r e p r e s e n t
a r i g o r o u s
a n a l y s i s o f
t h e
r e q u i r e m e n t s
f o r
c l a s s
c e r t i f i c a t i o n , b e c a u s e
i t was
d r a f t e d by M c F a d d e n ' s
c o u n s e l
and
a d o p t e d v e r b a t i m
by
t h e
t r i a l
c o u r t .
However,
as
t h i s
C o u r t
s t a t e d
i n
B i l l
H e a r d ,
t h e
f a c t
t h a t
t h e
o r d e r
was
d r a f t e d by
p l a i n t i f f ' s c o u n s e l
i s n o t e n o u g h , by
i t s e l f ,
t o
15
1060771
d e m o n s t r a t e t h a t t h e
t r i a l
c o u r t
f a i l e d t o c o n d u c t a r i g o r o u s
a n a l y s i s .
A l t h o u g h
we
n o t e d i n B i l l H e a r d t h e
t r i a l
c o u r t ' s
f a i l u r e t o d r a f t i t s own
o r d e r ,
o u r h o l d i n g i n t h a t c a s e
was
b a s e d on o t h e r f a c t o r s . More s p e c i f i c a l l y , we e m p h a s i z e d
" t h e
l a c k o f any
o p p o r t u n i t y f o r [ t h e d e f e n d a n t s ] t o p r e s e n t
t h e i r
e v i d e n c e
i n o p p o s i t i o n t o t h e
a s s e r t i o n s c o n t a i n e d
i n
[ t h e ]
p r o p o s e d o r d e r . "
819
So.
2d
a t 41.
We
a l s o n o t e d t h a t
t h e
o r d e r
" f a i l [ e d ]
t o
i d e n t i f y
t h e e l e m e n t s o f t h e
f o u r
c l a i m s
b e i n g
c e r t i f i e d f o r c l a s s t r e a t m e n t
and
f a i l [ e d ] t o d i s c u s s i n
a c o g e n t manner how
t h o s e e l e m e n t s b e a r upon t h e
c r i t e r i a
s e t
f o r t h i n R u l e 2 3 . "
819
So.
2d a t
41.
I n
t h i s
c a s e ,
h o w e v e r ,
t h e
t r i a l
c o u r t
c o n d u c t e d
an
e v i d e n t i a r y
h e a r i n g ,
and
CIT
was
g i v e n
t h e
o p p o r t u n i t y
t o
p r e s e n t , b o t h i n w r i t i n g and a t t h e h e a r i n g , i t s a r g u m e n t s
and
e v i d e n c e
i n o p p o s i t i o n t o c l a s s
c e r t i f i c a t i o n .
F u r t h e r ,
t h e
o r d e r
e n t e r e d
by
t h e
t r i a l
c o u r t
c o n t a i n s
a
d e t a i l e d
d i s c u s s i o n
o f e a c h o f t h e R u l e 23
r e q u i r e m e n t s .
T h e r e f o r e ,
o u r
d e c i s i o n i n
B i l l
H e a r d
i s d i s t i n g u i s h a b l e . A l t h o u g h
we
r e i t e r a t e
t h a t
t h e
p r a c t i c e o f
h a v i n g
c o u n s e l
f o r
a
p a r t y
d r a f t
t h e
c l a s s - c e r t i f i c a t i o n
o r d e r
i s
" s t r o n g l y
d i s c o u r a g e [ d ] , "
819
So.
2d
a t
41,
we
d e c l i n e
t o
o r d e r
t h e
16
1060771
v a c a t i o n o f t h e t r i a l
c o u r t ' s
c l a s s - c e r t i f i c a t i o n
o r d e r
on
t h i s
g r o u n d .
I I .
CIT
n e x t
a r g u e s
t h a t
t h e
t r i a l
c o u r t ' s
c l a s s -
c e r t i f i c a t i o n
o r d e r i s
due t o be r e v e r s e d b e c a u s e ,
a c c o r d i n g
t o C I T , McFadden does n o t h a v e s t a n d i n g t o b r i n g t h e c l a i m s i t
a s s e r t s .
More s p e c i f i c a l l y , CIT a r g u e s t h a t McFadden does n o t
h a v e
s t a n d i n g
b e c a u s e ,
CIT
c o n t e n d s ,
McFadden
c a n n o t
d e m o n s t r a t e any b r e a c h o f i t s l e a s e a g r e e m e n t
w i t h CIT o r any
b r e a c h o f t h e d u t y o f good
f a i t h .
T h i s C o u r t r e c e n t l y s t a t e d :
"'When a p a r t y
w i t h o u t
s t a n d i n g
p u r p o r t s
t o
commence
an
a c t i o n , t h e
t r i a l
c o u r t
a c q u i r e s
no
s u b j e c t - m a t t e r
j u r i s d i c t i o n . '
S t a t e v. P r o p e r t y a t
2018
R a i n b o w
D r i v e ,
740 So. 2d 1025, 1028 ( A l a .
1 9 9 9 ) . ...
" ' [ S ] t a n d i n g
t u r n s
on w h e t h e r
t h e p a r t y h a s
s u f f e r e d an a c t u a l i n j u r y and w h e t h e r t h e i n j u r y i s
t o a l e g a l l y p r o t e c t e d r i g h t . '
C a r e y v. Howard, 950
So. 2d 1 1 3 1 , 1135 ( A l a . 2 0 0 6 ) . ... [ A ] n ' a c t u a l o r
i m m i n e n t ,
p a r t i c u l a r i z e d ,
c o n c r e t e ,
and
p a l p a b l e
i n j u r y ... i s r e q u i r e d f o r a s h o w i n g o f s t a n d i n g . '
Town o f C e d a r B l u f f v . C i t i z e n s C a r i n g f o r
C h i l d r e n ,
904
So.
2d
1 2 5 3 ,
1261
( A l a . 2004)
( S e e , J . ,
c o n c u r r i n g
s p e c i a l l y ) . "
R i l e y v . P a t e , 3 So. 3d 835, 838 ( A l a . 2 0 0 8 ) . F u r t h e r ,
" ' [ i ] f
a named p l a i n t i f f h a s n o t b e e n i n j u r e d by t h e w r o n g a l l e g e d i n
17
1060771
t h e
c o m p l a i n t ,
t h e n no c a s e o r c o n t r o v e r s y i s p r e s e n t e d
and
t h e p l a i n t i f f has no s t a n d i n g t o sue e i t h e r on h i s own
b e h a l f
o r on b e h a l f o f a c l a s s . ' " K i d ' s C a r e , I n c . v . A l a b a m a Dep't
o f Human R e s . , 843 So. 2d 1
64 , 167
( A l a .
2002
) ( q u o t i n g Ex
p a r t e
P r u d e n t i a l I n s . Co. o f A m e r i c a , 721 So. 2d 1135, 1137
( A l a .
1 9 9 8 ) ) .
McFadden has a l l e g e d t h a t C I T ' s methods o f a s s e s s i n g t h e
f e e s c h a r g e d f o r C I T - p l a c e d
i n s u r a n c e u n d e r t h e two p r o g r a m s
r e s u l t e d i n i t s
payment o f u n r e a s o n a b l e and e x c e s s i v e
f e e s
t h a t w e r e n o t p e r m i t t e d b y i t s l e a s e a g r e e m e n t . I t a l s o a r g u e s
t h a t C I T ' s b e h a v i o r i n c h a r g i n g t h e f e e s v i o l a t e d t h e d u t y o f
g o o d f a i t h i m p l i e d i n t h e l e a s e a g r e e m e n t .
M c F a d d e n ' s a l l e g e d
i n j u r i e s , w h i c h i t c l a i m s w e r e c a u s e d b y w r o n g s c o m m i t t e d b y
C I T , a r e n o t s p e c u l a t i v e o r h y p o t h e t i c a l , b u t a p p e a r , i n s t e a d ,
t o be " ' a c t u a l , ... p a r t i c u l a r i z e d , c o n c r e t e , and p a l p a b l e . ' "
R i l e y , 3 So. 3d a t 838.
M o r e o v e r , i t a p p e a r s t h a t M c F a d d e n ' s
i n j u r i e s w o u l d be r e d r e s s e d b y a d e c i s i o n i n McFadden's f a v o r .
T h e r e f o r e ,
we
h o l d
t h a t McFadden has s t a n d i n g t o b r i n g i t s
c l a i m s , and we
d e c l i n e t o r e v e r s e t h e
t r i a l
c o u r t ' s
c l a s s -
c e r t i f i c a t i o n
o r d e r on t h i s
g r o u n d .
6
6Much o f C I T ' s a r g u m e n t r e g a r d i n g McFadden's a l l e g e d l a c k
o f
s t a n d i n g
r e l a t e s
t o t h e u n d e r l y i n g m e r i t s
o f M c F a d d e n ' s
18
1060771
I I I .
CIT
n e x t
a r g u e s
t h a t ,
i f t h i s
C o u r t
d e t e r m i n e s
t h a t
McFadden has s t a n d i n g
t o b r i n g i t s
c l a i m s , t h e t r i a l
c o u r t ' s
o r d e r i s due t o be r e v e r s e d
b e c a u s e , CIT a r g u e s , McFadden has
n o t
s a t i s f i e d t h e R u l e 2 3 ( a ) and ( b ) ( 3 ) r e q u i r e m e n t s f o r c l a s s
c e r t i f i c a t i o n .
A. R u l e 2 3 ( a ) P r e r e q u i s i t e s
R u l e 2 3 ( a ) , A l a . R. C i v . P.,
p r o v i d e s :
" ( a )
P r e r e q u i s i t e s t o a C l a s s
A c t i o n .
One o r
more
members
o f a
c l a s s
may
sue o r be
s u e d
as
r e p r e s e n t a t i v e
p a r t i e s on b e h a l f o f a l l o n l y i f (1)
t h e c l a s s i s so numerous t h a t j o i n d e r o f a l l members
i s
i m p r a c t i c a b l e ,
(2) t h e r e a r e q u e s t i o n s o f l a w o r
f a c t common t o t h e c l a s s , (3) t h e c l a i m s o r d e f e n s e s
o f
t h e r e p r e s e n t a t i v e
p a r t i e s
a r e t y p i c a l
o f t h e
c l a i m s
o r
d e f e n s e s
o f
t h e
c l a s s ,
and
(4)
t h e
r e p r e s e n t a t i v e
p a r t i e s
w i l l
f a i r l y
and
a d e q u a t e l y
p r o t e c t t h e i n t e r e s t s o f t h e c l a s s . "
The
f o u r
R u l e 2 3 ( a ) r e q u i r e m e n t s
" a r e commonly
r e f e r r e d t o
r e s p e c t i v e l y
as
(1)
' n u m e r o s i t y , '
(2)
' c o m m o n a l i t y , '
(3)
' t y p i c a l i t y , ' and (4) ' a d e q u a c y . '
' N u m e r o s i t y and c o m m o n a l i t y
c o n c e r n
t h e
e n t i r e
c l a s s ,
w h i l e
t y p i c a l i t y
and
a d e q u a c y
c o n c e r n t h e n e x u s o f t h e named c l a s s r e p r e s e n t a t i v e s
w i t h t h e
c l a i m s .
McFadden a r g u e s t h a t a c o n s i d e r a t i o n o f t h e m e r i t s a t
t h i s s t a g e o f t h e c a s e i s i n a p p r o p r i a t e .
B e c a u s e we c o n c l u d e
t h a t McFadden has
s t a n d i n g
t o b r i n g
i t s c l a i m s ,
we do n o t
a d d r e s s w h e t h e r , o r t o what e x t e n t ,
a m e r i t s - r e l a t e d
i n q u i r y
i s
a l l o w e d
d u r i n g t h e c l a s s - c e r t i f i c a t i o n
p r o c e s s .
19
1060771
c l a s s
i t s e l f . ' "
A t l a n t a C a s . Co. v. R u s s e l l , 798 So. 2d 664,
666
( A l a . 2001) ( q u o t i n g W a r e h o u s e Home F u r n i s h i n g
D i s t r i b s . ,
I n c .
v. W h i t s o n , 709 So. 2d 1144, 1148 ( A l a . 1 9 9 7 ) ) .
CIT
d o e s n o t d i s p u t e t h e
t r i a l
c o u r t ' s
f i n d i n g
t h a t
McFadden
s a t i s f i e d t h e n u m e r o s i t y and a d e q u a c y r e q u i r e m e n t s .
T h e r e f o r e ,
we
l i m i t
o u r d i s c u s s i o n
o f R u l e
2 3 ( a ) t o t h e
e l e m e n t s o f c o m m o n a l i t y and
t y p i c a l i t y .
i .
C o m m o n a l i t y
" I n
e x a m i n i n g
t h e
s e v e r a l
p r e r e q u i s i t e s
f o r
c l a s s
c e r t i f i c a t i o n
c o n t a i n e d i n R u l e 23, we must k e e p i n m i n d
t h a t
' R u l e 23 o f t h e A l a b a m a R u l e s o f C i v i l
P r o c e d u r e
r e a d s t h e
same as R u l e 23 o f t h e F e d e r a l R u l e s , and we c o n s i d e r f e d e r a l
c a s e l a w on c l a s s a c t i o n s t o be p e r s u a s i v e a u t h o r i t y f o r t h e
i n t e r p r e t a t i o n o f o u r own R u l e 2 3 . ' " Ryan v . P a t t e r s o n , [Ms.
1060438, F e b r u a r y 27, 2 0 0 9 ] ___ So. 3d ___ , ___ ( A l a . 2009)
( q u o t i n g Adams v . R o b e r t s o n ,
676 So. 2d 12
65,
12
68
( A l a .
1 9 9 5 ) ) .
The U n i t e d S t a t e s C o u r t o f A p p e a l s
f o r t h e
F i f t h
C i r c u i t h a s s a i d :
"The
t h r e s h o l d o f ' c o m m o n a l i t y '
i s n o t h i g h .
A i m e d i n p a r t a t ' d e t e r m i n i n g w h e t h e r
t h e r e i s a
n e e d f o r c o m b i n e d
t r e a t m e n t
and a b e n e f i t
t o be
d e r i v e d
t h e r e f r o m , '
I n r e A g e n t
Orange
P r o d u c t
L i a b i l i t y
L i t i g a t i o n ,
506
F.
Supp.
762,
787
(E.D.N.Y.
1 9 8 0 ) ,
m o d i f i e d , 100 F.R.D. 718
( 1 9 8 3 ) ,
20
1060771
mandamus
d e n i e d
sub nom. I n r e Diamond
Shamrock
C h e m i c a l s Co., 725 F.2d 858 (2d C i r . ) ,
c e r t .
d e n i e d ,
4
65 U.S. 10
67
, 104 S. C t . 1417, 79 L. E d . 2d 743
( 1 9 8 4 ) ,
t h e r u l e r e q u i r e s
o n l y
t h a t
r e s o l u t i o n o f
t h e common
q u e s t i o n s
a f f e c t
a l l o r a s u b s t a n t i a l
number o f t h e c l a s s members,
S t e w a r t v . W i n t e r , 669
F.2d
328, 335 ( 5 t h
C i r . 1 9 8 2 ) . "
J e n k i n s v . Raymark I n d u s . , I n c . , 782 F.2d 468, 472 ( 5 t h C i r .
1 9 8 6 ) .
As
p r e v i o u s l y n o t e d i n t h i s
o p i n i o n , t h e t r i a l
c o u r t
c e r t i f i e d t h e f o l l o w i n g c l a i m s f o r c l a s s t r e a t m e n t :
(1)
t h e
c l a i m t h a t CIT b r e a c h e d t h e l e a s e a g r e e m e n t d u r i n g t h e P r e m i e r
p r o g r a m
b y
r e t a i n i n g
f e e s
n o t
a u t h o r i z e d
by
t h e
l e a s e
a g r e e m e n t ; (2)
t h e c l a i m t h a t CIT b r e a c h e d t h e l e a s e a g r e e m e n t
d u r i n g
t h e
A m e r i c a n
B a n k e r s
p r o g r a m
b y
c h a r g i n g
an
u n r e a s o n a b l e f e e i n v i o l a t i o n o f New J e r s e y l a w ;
a n d (3)
t h e
c l a i m t h a t CIT b r e a c h e d t h e i m p l i e d c o v e n a n t o f g o o d f a i t h i n
t h e
manner
i n w h i c h
i t e s t a b l i s h e d a n d a d m i n i s t e r e d
t h e
i n s u r a n c e p r o g r a m s .
We a g r e e w i t h McFadden t h a t t h e s e
c l a i m s
a r e
b a s e d on C I T ' s methods o f a d m i n i s t e r i n g i t s i n s u r a n c e
p r o g r a m s a n d a s s e s s i n g f e e s u n d e r t h o s e p r o g r a m s .
T h e r e f o r e ,
t h e c l a i m s c a n be t r e a t e d on a c l a s s - w i d e
b a s i s .
CIT
a r g u e s
t h a t , i n o r d e r
f o r M c F a d d e n t o p r e v a i l on
t h e s e c l a i m s , t h e t r i a l c o u r t w o u l d h a v e t o t r e a t t h e l a n g u a g e
21
1060771
o f t h e l e a s e
a g r e e m e n t
as a m b i g u o u s .
I f t h e l a n g u a g e i s
a m b i g u o u s , C I T a r g u e s , t h e t r i a l
c o u r t
w i l l have t o l o o k a t
t h e
s u b j e c t i v e i n t e n t o f e a c h p a r t y t o d e t e r m i n e t h e m e a n i n g
o f t h e l e a s e a g r e e m e n t , m a k i n g c l a s s t r e a t m e n t i n a p p r o p r i a t e .
We
d i s a g r e e .
The
l a n g u a g e
o f t h e
l e a s e
a g r e e m e n t
i s
u n a m b i g u o u s , a n d McFadden does n o t a r g u e o t h e r w i s e .
M o r e o v e r ,
C I T u s e d t h e same s t a n d a r d
l e a s e
a g r e e m e n t
w i t h
e a c h
c l a s s
member a n d c h a r g e d e a c h
c l a s s member a m o n t h l y amount f o r
i n s u r a n c e
p l a c e d by C I T .
T h u s ,
t h e r e
w i l l be no n e e d f o r
i n d i v i d u a l i z e d
e v i d e n c e t o a d d r e s s M c F a d d e n ' s
c l a i m s
t h a t
C I T ' s methods
v i o l a t e d t h e l e a s e
a g r e e m e n t
a n d t h e d u t y o f
good
f a i t h .
C o n s e q u e n t l y ,
we h o l d
t h a t McFadden
p r e s e n t e d
"common i s s u e s o f l a w a n d f a c t , " R u l e 2 3 ( a ) , a n d , t h e r e f o r e ,
s a t i s f i e d
t h e
c o m m o n a l i t y
p r e r e q u i s i t e
f o r
c l a s s
c e r t i f i c a t i o n .
7
7 C I T
a l s o a r g u e s
t h a t t h e t r i a l
c o u r t
e r r e d i n f i n d i n g
t h a t t h e c o m m o n a l i t y r e q u i r e m e n t h a d been
s a t i s f i e d ,
b e c a u s e
t h e
c o u r t
f a i l e d t o a c c o u n t f o r
t h o s e c l a s s members who h a v e
b e n e f i t e d
f r o m t h e C I T - p l a c e d i n s u r a n c e .
C I T c i t e s , as an
e x a m p l e , a c l a s s member t h a t
i n c u r r e d a l o s s ,
f i l e d a c l a i m
u n d e r
t h e
e x i s t i n g
i n s u r a n c e
p r o g r a m ,
a n d
r e c e i v e d
new
e q u i p m e n t .
C I T a r g u e s t h a t t h e c u s t o m e r b e n e f i t e d
f r o m t h e
i n s u r a n c e
p r o g r a m , b e c a u s e i t l a t e r
e x e r c i s e d i t s o p t i o n t o
p u r c h a s e t h e e q u i p m e n t f o r
a n o m i n a l f e e a t t h e e n d o f t h e
l e a s e .
However, C I T ' s a r g u m e n t a g a i n o v e r l o o k s t h e e s s e n c e o f
M c F a d d e n ' s
c l a i m s ,
w h i c h
i s
t h a t
C I T ' s
methods
o f
a d m i n i s t e r i n g t h e i n s u r a n c e p r o g r a m s a n d o f a s s e s s i n g t h e f e e s
22
1060771
i i .
T y p i c a l i t y
To
e s t a b l i s h
t y p i c a l i t y ,
t h e
p a r t y
s e e k i n g
c l a s s
c e r t i f i c a t i o n must d e m o n s t r a t e t h a t " t h e c l a i m s o r d e f e n s e s o f
t h e
r e p r e s e n t a t i v e
p a r t i e s a r e t y p i c a l
o f t h e c l a i m s
o r
d e f e n s e s o f t h e c l a s s . "
R u l e
2 3 ( a ) , A l a .
R. C i v . P.
"The
' t y p i c a l i t y '
r e q u i r e m e n t
f o c u s e s
l e s s
on
t h e
r e l a t i v e
s t r e n g t h s o f t h e named and unnamed p l a i n t i f f s '
c a s e s t h a n on
t h e s i m i l a r i t y o f t h e l e g a l and r e m e d i a l
t h e o r i e s b e h i n d
t h e i r
c l a i m s . "
J e n k i n s ,
782
F.2d a t 472.
CIT
a r g u e s
t h a t
M c F a d d e n ' s
c l a i m s
a r e n o t t y p i c a l
o f t h o s e o f t h e c l a s s ,
b e c a u s e , i t a r g u e s ,
t h e r e
c o u l d be m y r i a d r e a s o n s why
c l a s s
members c h o s e t o a l l o w CIT t o o b t a i n
i n s u r a n c e
c o v e r a g e f o r
them and b e c a u s e
t h e r e
i s no
p r o o f
t h a t
t h e o t h e r
c l a s s
members f e e l , as McFadden d o e s , t h a t t h e f e e s w e r e o u t s i d e t h e
b o u n d s o f t h e l e a s e
a g r e e m e n t .
A g a i n ,
h o w e v e r , t h e i s s u e s t o be a d d r e s s e d i n t h i s
c a s e
i n v o l v e C I T ' s m e t h o d s o f a d m i n i s t e r i n g t h e i n s u r a n c e
p r o g r a m s
and
a s s e s s i n g
f e e s .
CIT
u s e d
t h e same
s t a n d a r d
l e a s e
a g r e e m e n t w i t h e a c h c l a s s member, c h a r g e d e a c h c l a s s member a
r e s u l t e d i n e x c e s s i v e o r u n r e a s o n a b l e c h a r g e s t o t h e members
o f t h e c l a s s . W h e t h e r any member o f t h e c l a s s b e n e f i t e d
f r o m
b e i n g
r e i m b u r s e d f o r a l o s s u n d e r an i n s u r a n c e
p r o g r a m i s
i r r e l e v a n t t o t h e r e s o l u t i o n o f M c F a d d e n ' s
c l a i m s .
23
1060771
m o n t h l y f e e ,
a n d o t h e r w i s e a d m i n i s t e r e d i t s i n s u r a n c e p r o g r a m s
w i t h o u t
r e g a r d
t o t h e i n d i v i d u a l
c i r c u m s t a n c e s
o f a c l a s s
member. U n d e r t h e s e
c i r c u m s t a n c e s ,
t h e " l e g a l a n d
r e m e d i a l
t h e o r i e s " u n d e r l y i n g M c F a d d e n ' s c l a i m s a n d t h o s e o f t h e c l a s s
members w o u l d be t h e same. See J e n k i n s , s u p r a .
T h e r e f o r e , we
h o l d
t h a t McFadden
s a t i s f i e d t h e t y p i c a l i t y
r e q u i r e m e n t o f
R u l e 2 3 ( a ) .
We now t u r n t o t h e r e q u i r e m e n t s o f R u l e
2 3 ( b ) ( 3 ) .
B.
R u l e 2 3 ( b ) ( 3 )
R e q u i r e m e n t s
CIT
a r g u e s t h a t McFadden
f a i l e d t o meet t h e r e q u i r e m e n t s
o f R u l e 2 3 ( b ) ( 3 ) , A l a . R. C i v .
P., f o r c l a s s
c e r t i f i c a t i o n .
R u l e 2 3 ( b ) p r o v i d e s , i n p e r t i n e n t
p a r t :
"(b)
C l a s s A c t i o n s M a i n t a i n a b l e .
An a c t i o n may
be m a i n t a i n e d as a c l a s s a c t i o n i f
t h e
p r e r e q u i s i t e s
o f s u b d i v i s i o n (a) a r e s a t i s f i e d , a n d i n a d d i t i o n :
" ( 3 ) t h e c o u r t
f i n d s t h a t t h e q u e s t i o n s o f
l a w
o r
f a c t
common
t o t h e members
o f t h e
c l a s s
p r e d o m i n a t e
o v e r
any
q u e s t i o n s
a f f e c t i n g
o n l y
i n d i v i d u a l
members,
a n d t h a t
a
c l a s s
a c t i o n i s
s u p e r i o r t o o t h e r a v a i l a b l e methods f o r t h e f a i r a n d
e f f i c i e n t
a d j u d i c a t i o n o f t h e c o n t r o v e r s y .
...
"
The t r i a l c o u r t f o u n d t h a t McFadden h a d met i t s b u r d e n t o
show t h a t common i s s u e s o f l a w a n d f a c t p r e d o m i n a t e d i n
t h e
c a s e
a n d t h a t
a
c l a s s
a c t i o n was t h e s u p e r i o r
means o f
r e s o l v i n g t h e d i s p u t e .
CIT h a s n o t a r g u e d t o t h i s C o u r t
t h a t
24
1060771
t h e
t r i a l
c o u r t
e x c e e d e d
i t s d i s c r e t i o n
i n f i n d i n g
t h a t
McFadden
h a d
s a t i s f i e d
t h e
s u p e r i o r i t y
r e q u i r e m e n t .
T h e r e f o r e ,
we
l i m i t
o u r d i s c u s s i o n
t o t h e R u l e
2 3 ( b ) ( 3 )
r e q u i r e m e n t
" t h a t t h e q u e s t i o n s o f l a w o r f a c t common t o
t h e
members o f t h e c l a s s p r e d o m i n a t e
o v e r any q u e s t i o n s
a f f e c t i n g
o n l y
i n d i v i d u a l members."
CIT a r g u e s h e r e , as i t
d i d
r e g a r d i n g t h e r e q u i r e m e n t s o f
R u l e 2 3 ( a ) , t h a t , i n o r d e r t o a d d r e s s M c F a d d e n ' s c l a i m s , t h e
t r i a l
c o u r t
w i l l
h a v e t o c o n s i d e r t h e i n d i v i d u a l
i n t e n t o f
e a c h
c l a s s member t o d e t e r m i n e
(1) w h e t h e r t h e c l a s s member
t h o u g h t
t h a t t h e l e a s e a g r e e m e n t
l i m i t e d t h e f e e s CIT c o u l d
c h a r g e , a n d (2) why t h e c l a s s member a l l o w e d CIT t o p r o v i d e
i n s u r a n c e .
C I T ' s
a r g u m e n t
r e l i e s
h e a v i l y on t h i s
C o u r t ' s
d e c i s i o n i n R e y n o l d s M e t a l s Co. v . H i l l , 825 So. 2d 100 ( A l a .
2 0 0 2 ) .
I n
R e y n o l d s
M e t a l s , f o r m e r e m p l o y e e s o f R e y n o l d s
M e t a l s
c l a i m e d
t h a t t h e y h a d b e e n p r o m i s e d
t h a t s e v e r a n c e
b e n e f i t s
w o u l d be p a i d t o them when R e y n o l d s M e t a l s s o l d t h e
f a c i l i t y
t o
a n o t h e r
company.
The p r o m i s e
h a d a l l e g e d l y
b e e n made
o r a l l y b y a v i c e p r e s i d e n t o f R e y n o l d s
M e t a l s d u r i n g
town
h a l l - t y p e
m e e t i n g s .
We
v a c a t e d
t h e
t r i a l
c o u r t ' s
o r d e r
25
1060771
c e r t i f y i n g t h e p l a i n t i f f
e m p l o y e e s
as a c l a s s , s t a t i n g t h a t
" R e y n o l d s h a s d e m o n s t r a t e d
t h a t i n d i v i d u a l i z e d e v i d e n c e f r o m
e a c h c l a s s member i s n e c e s s a r y t o d e t e r m i n e what c o n t r a c t , i f
any,
e x i s t s b e t w e e n i t
a n d t h e c l a s s member."
825 So. 2d a t
107.
F u r t h e r , we f o u n d t h a t
" i n d i v i d u a l e v i d e n c e f r o m
e a c h
c l a s s member w o u l d be n e c e s s a r y t o d e t e r m i n e w h e t h e r h i s
o r
h e r c o n d u c t i n f a c t c o n s t i t u t e d an a c c e p t a n c e " o f t h e a l l e g e d
p r o m i s e o f s e v e r a n c e b e n e f i t s .
825 So. 2d a t 107.
Thus, we
c o n c l u d e d t h a t
" i n d i v i d u a l
i s s u e s o f p r o o f p r e d o m i n a t e [ d ] i n
[ t h e
p l a i n t i f f s ' ]
c l a i m s " a n d t h a t " t h e p l a i n t i f f
e m p l o y e e s
f a i l e d t o s a t i s f y R u l e 2 3 ( b ) ( 3 ) ' s
p r e d o m i n a n c e
r e q u i r e m e n t as
t o ... t h e i r
[ b r e a c h - o f - c o n t r a c t ]
c l a i m s . "
R e y n o l d s
M e t a l s ,
825 So. 2d a t 108.
R e y n o l d s M e t a l s i s
d i s t i n g u i s h a b l e f r o m t h i s c a s e .
H e r e ,
t h e
s t a n d a r d
l e a s e a g r e e m e n t s i g n e d by e a c h
c l a s s member i s
w r i t t e n , n o t o r a l . B o t h p a r t i e s h a v e a r g u e d t h a t t h e t e r m s o f
t h e
l e a s e
a g r e e m e n t a r e u n a m b i g u o u s .
T h e r e f o r e ,
t h e
t r i a l
c o u r t i n t h i s c a s e
w i l l n o t be r e q u i r e d t o d e t e r m i n e
w h e t h e r
a c o n t r a c t
e x i s t e d b e t w e e n CIT a n d any c l a s s member o r what
t h e t e r m s o f t h a t c o n t r a c t m i g h t b e .
M o r e o v e r , as
d i s c u s s e d
p r e v i o u s l y , no i n d i v i d u a l i z e d e v i d e n c e
w i l l be r e q u i r e d t o
26
1060771
e s t a b l i s h
M c F a d d e n ' s
c l a i m s
r e g a r d i n g
C I T ' s
c o n d u c t
i n
a d m i n i s t e r i n g t h e i n s u r a n c e p r o g r a m s a n d i n a s s e s s i n g
f e e s f o r
t h e
i n s u r a n c e
i t
p l a c e d .
T h e r e f o r e ,
u n l i k e R e y n o l d s
M e t a l s ,
i n d i v i d u a l
i s s u e s o f p r o o f do n o t p r e d o m i n a t e i n t h i s
c a s e .
We
h a v e
s t a t e d
t h a t
" [ i ] n
d e t e r m i n i n g
w h e t h e r
t h e
q u e s t i o n s
o f
l a w o r
f a c t
common
t o t h e
c l a s s
members
p r e d o m i n a t e o v e r t h o s e q u e s t i o n s
t h a t
a f f e c t o n l y
i n d i v i d u a l
c l a s s
members,
t h e
c o u r t
must
i n i t i a l l y
i d e n t i f y
t h e
s u b s t a n t i v e l a w a p p l i c a b l e t o t h e c a s e and i d e n t i f y t h e p r o o f
t h a t
w i l l be n e c e s s a r y t o e s t a b l i s h t h e c l a i m . "
Ex
p a r t e
G r e e n
T r e e F i n . C o r p . , 723 So. 2d 6, 9 ( A l a .
1998
).
The
s t a n d a r d
l e a s e a g r e e m e n t u s e d i n t h i s c a s e p r o v i d e s :
" [ T ] h i s
l e a s e
w i l l
be
g o v e r n e d b y t h e l a w s
o f t h e S t a t e
o f New
J e r s e y . "
8
T h e r e f o r e ,
t h e same s u b s t a n t i v e l a w w i l l
a p p l y t o
8 C I T a r g u e s t h a t t h e d u t y o f good f a i t h i s
an i m p l i e d d u t y
a r i s i n g
o u t s i d e
t h e t e r m s
o f t h e
l e a s e
a g r e e m e n t
a n d ,
t h e r e f o r e , t h e c l a i m
a l l e g i n g i t v i o l a t e d t h a t
d u t y i s n o t
g o v e r n e d
by
t h e
c h o i c e - o f - l a w
p r o v i s i o n
i n t h e
l e a s e
a g r e e m e n t . C o n s e q u e n t l y , a c c o r d i n g t o C I T , b e c a u s e t h e c l a s s
i n c l u d e s members f r o m
a c r o s s
t h e n a t i o n , t h e r e s o l u t i o n o f
t h i s c l a i m w o u l d r e q u i r e t h e t r i a l c o u r t t o c o n s t r u e t h e l a w s
o f many
s t a t e s .
M c F a d d e n a r g u e s
t h a t CIT h a s r a i s e d
t h i s
i s s u e f o r t h e f i r s t
t i m e on a p p e a l .
A l t h o u g h CIT m e n t i o n e d
t h i s a r g u m e n t g e n e r a l l y i n i t s i n i t i a l m o t i o n t o d i s m i s s f o r
f a i l u r e t o s t a t e a c l a i m upon w h i c h r e l i e f c a n be g r a n t e d , t h e
i s s u e
was n o t a r g u e d
--
e i t h e r
i n i t s b r i e f
o r a t t h e
e v i d e n t i a r y h e a r i n g
-- i n r e s p o n s e t o M c F a d d e n ' s m o t i o n f o r
c l a s s
c e r t i f i c a t i o n .
T h e r e f o r e ,
we d e c l i n e t o a d d r e s s
t h i s
27
1060771
a l l
t h e
c l a i m s .
M o r e o v e r , M c F a d d e n ' s
c l a i m s
--
t h a t
C I T ' s
a c t i o n s u n d e r t h e P r e m i e r p r o g r a m l e d t o t h e i m p o s i t i o n on i t s
c u s t o m e r s o f c h a r g e s t h a t were o u t s i d e
t h e s c o p e o f t h e
l e a s e
a g r e e m e n t ;
t h a t
C I T ' s
a c t i o n s
u n d e r
t h e
A m e r i c a n
B a n k e r s
p r o g r a m r e s u l t e d i n i t s c u s t o m e r s b e i n g
c h a r g e d u n r e a s o n a b l e
f e e s ; and
t h a t C I T ' s a d m i n i s t r a t i o n o f t h e i n s u r a n c e
p r o g r a m s
v i o l a t e d
t h e
d u t y
o f
good
f a i t h
--
can
be
e s t a b l i s h e d
by
r e v i e w i n g
t h e
t e r m s o f
t h e
l e a s e a g r e e m e n t and
t h e
e v i d e n c e
r e l a t e d t o C I T ' s methods o f p r o v i d i n g
i n s u r a n c e .
As
we
h a v e
p r e v i o u s l y
d i s c u s s e d ,
we
do
n o t
f i n d
any
a m b i g u i t y
i n
t h e
t e r m s o f
t h e
s t a n d a r d
l e a s e a g r e e m e n t ,
and
C I T ' s methods
o f
a d m i n i s t e r i n g
t h e
i n s u r a n c e
p r o g r a m s and
a s s e s s i n g
f e e s w e r e
t h e same f o r e a c h c l a s s member.
T h e r e f o r e ,
t h e r e
w i l l
be
no
n e e d f o r i n d i v i d u a l i z e d p r o o f as
t o e i t h e r o f t h o s e
m a t t e r s .
CIT
a l s o
a r g u e s
t h a t
McFadden
c a n n o t
d e m o n s t r a t e
a
p r e d o m i n a n c e
o f common i s s u e s
o f
l a w
and
f a c t , b e c a u s e
t h e
c a l c u l a t i o n
o f damages w i l l
r e q u i r e
i n d i v i d u a l i z e d e v i d e n c e ,
a r g u m e n t .
See
R i l e y
v.
J o i n t
F i s c a l
Comm.
o f
A l a b a m a
L e g i s l a t u r e ,
[Ms.
1080468, J u n e 19, 2009]
So.
3d
,
( A l a .
2009)
( t h i s
C o u r t ' s
" ' r e v i e w
i s
r e s t r i c t e d
t o
t h e
e v i d e n c e
and
a r g u m e n t s
c o n s i d e r e d
by
t h e
t r i a l
c o u r t ' "
( q u o t i n g A n d r e w s v. M e r r i t t O i l Co.,
612
So.
2d 409,
410
( A l a .
1 9 9 2 ) ) ) .
See
a l s o B a r n e t t
v.
E s t a t e
o f A n d e r s o n ,
966
So.
2d
915,
920
( A l a . 2007)
("We
d e c l i n e t o r e v i e w an i s s u e
...
t h a t
was
n o t
c o n s i d e r e d
by
t h e
t r i a l
c o u r t . " ) .
28
1060771
and McFadden h a s n o t p r e s e n t e d t h e t r i a l c o u r t w i t h a c l a s s -
w i d e m e t h o d o f d e t e r m i n i n g damages.
However, as t h e U n i t e d
S t a t e s C o u r t o f A p p e a l s f o r
t h e F i r s t
C i r c u i t n o t e d i n S m i l o w
v. S o u t h w e s t e r n B e l l M o b i l e S y s t e m s , 323 F.3d 32, 40 ( 1 s t
C i r .
2 0 0 3 ) ,
" [ t ] h e
i n d i v i d u a t i o n
o f damages i n c o n s u m e r
c l a s s
a c t i o n s i s r a r e l y d e t e r m i n a t i v e u n d e r
R u l e 2 3 ( b ) ( 3 ) .
Where
... common q u e s t i o n s p r e d o m i n a t e
r e g a r d i n g
l i a b i l i t y ,
t h e n
c o u r t s
g e n e r a l l y
f i n d
t h e p r e d o m i n a n c e
r e q u i r e m e n t
t o be
s a t i s f i e d even i f i n d i v i d u a l damages i s s u e s r e m a i n . "
I n t h i s
c a s e ,
as i n S m i l o w ,
common
q u e s t i o n s
o f l a w a n d
f a c t
p r e d o m i n a t e r e g a r d i n g C I T ' s
l i a b i l i t y ,
t h e r e b y s a t i s f y i n g t h e
p r e d o m i n a n c e
r e q u i r e m e n t ,
d e s p i t e
t h e
f a c t
t h a t
e a c h
c u s t o m e r ' s damages w o u l d h a v e t o be c a l c u l a t e d .
CIT h a s
n o t
c o n v i n c e d
t h i s
C o u r t
t h a t
t h e r e i s a l i k e l y
" p o t e n t i a l f o r
h i g h l y i n d i v i d u a l i z e d damages c o m p u t a t i o n s . "
Compass Bank v .
Snow, 823 So. 2d a t 676 ( e m p h a s i s
a d d e d ) .
9
9 C I T a r g u e s i n i t s r e p l y
b r i e f
t h a t M c F a d d e n ' s damages
c l a i m s a r e " b a s e d on a t h e o r y t h a t CIT was u n j u s t l y e n r i c h e d . "
C I T ' s
r e p l y
b r i e f , a t 3 1 .
CIT a r g u e s
t h a t McFadden a v o i d s
u s i n g t h e p h r a s e " u n j u s t e n r i c h m e n t " t o d e s c r i b e i t s c l a i m s ,
b e c a u s e , i t
a r g u e s , McFadden knows t h a t
" ' u n j u s t e n r i c h m e n t
c l a i m s ... a r e
u n s u i t a b l e f o r c l a s s - a c t i o n t r e a t m e n t . ' "
C I T ' s
r e p l y b r i e f , a t 31-32 ( q u o t i n g A v i s R e n t - a - C a r
S y s . , I n c . v .
H e i l m a n , 876 So. 2d 1 1 1 1 , 1123 ( A l a . 2 0 0 3 ) ) .
However,
t h i s
a r g u m e n t
a p p e a r s
f o r t h e f i r s t
t i m e i n C I T ' s
r e p l y
b r i e f .
" ' [ T ] h i s C o u r t does n o t a d d r e s s
i s s u e s
r a i s e d f o r
t h e
f i r s t
29
1060771
F i n a l l y , CIT a r g u e s
t h a t McFadden c a n n o t meet t h e R u l e
2 3 ( b ) ( 3 )
p r e d o m i n a n c e
r e q u i r e m e n t b e c a u s e , CIT a r g u e s , i t s
a f f i r m a t i v e
d e f e n s e s o f w a i v e r ,
m i t i g a t i o n o f damages, a n d
v o l u n t a r y
payment
w i l l
r e q u i r e
i n d i v i d u a l i z e d p r o o f .
1 0
Any
i s s u e s o f l a w o r f a c t u n d e r l y i n g C I T ' s w a i v e r and m i t i g a t i o n -
o f - d a m a g e s d e f e n s e s w o u l d a p p e a r t o be common t o a l l c l a s s
members. CIT a r g u e s ,
c i t i n g
no
a u t h o r i t y ,
t h a t
w a i v e r i s
e s t a b l i s h e d
b y
M c F a d d e n ' s
c o n s i s t e n t
payment
o f
m o n t h l y
i n v o i c e s f o r i t s l e a s e d e q u i p m e n t t h a t
i n c l u d e d an
i n s u r a n c e
c h a r g e a n d , a g a i n
c i t i n g no a u t h o r i t y ,
t h a t McFadden
c o u l d
h a v e
m i t i g a t e d
i t s
damages by p r o v i d i n g
p r o o f o f i t s
own
i n s u r a n c e
c o v e r a g e . However, t h e c l a s s c e r t i f i e d by t h e t r i a l
t i m e i n
a r e p l y b r i e f . ' "
Cobb v. F i s h e r , [Ms. 1 0 7 1 5 0 1 ,
A p r i l
3, 200
9]
So. 3d
,
( A l a . 2009)
( q u o t i n g
B y r d v .
Lamar, 846 So. 2d 334, 341 ( A l a . 2 0 0 2 ) ) .
1 0 C I T
a l s o
s t a t e s i n a c o n c l u s o r y
f a s h i o n
t h a t
" [ o ] t h e r
a f f i r m a t i v e d e f e n s e s p l e a d [ e d ] by [ C I T ] ,
i n c l u d i n g
e s t o p p e l ,
r a t i f i c a t i o n ,
a c q u i e s c e n c e ,
and
l a c h e s
l i k e w i s e
r a i s e
i n d i v i d u a l
i s s u e s . "
C I T ' s b r i e f , a t 58.
However, w i t h t h e
e x c e p t i o n
o f a s u p r a
c i t e
t o Compass Bank, CIT
c i t e s
no
a u t h o r i t y and p r o v i d e s
no a r g u m e n t as t o how t h e s e
d e f e n s e s
w i l l r e q u i r e i n d i v i d u a l i z e d p r o o f .
" ' " [ I ] t i s
n o t t h e f u n c t i o n
o f
t h i s
C o u r t t o do a p a r t y ' s
l e g a l
r e s e a r c h
o r t o make o r
a d d r e s s
l e g a l
a r g u m e n t s f o r a p a r t y
b a s e d on
u n d e l i n e a t e d
g e n e r a l
p r o p o s i t i o n s n o t s u p p o r t e d b y s u f f i c i e n t a u t h o r i t y o r
a r g u m e n t . " ' "
L a t h e m v. D e p a r t m e n t o f C o r r . , 927 So. 2d 815,
820 n. 11 ( A l a . 2005)
( q u o t i n g B u t l e r v. Town o f A r g o , 871 So.
2d 1, 20 ( A l a . 2 0 0 3 ) , q u o t i n g i n t u r n Dykes v. Lane
T r u c k i n g ,
I n c . , 652 So. 2d 248, 251 ( A l a . 1 9 9 4 ) ) .
30
1060771
c o u r t
i n c l u d e s
o n l y
t h o s e
c u s t o m e r s
who
e n t e r e d
i n t o
a
s t a n d a r d
l e a s e a g r e e m e n t w i t h CIT and who, a f t e r t h e y
f a i l e d
t o p r o v i d e p r o o f o f i n s u r a n c e , p a i d i n s u r a n c e c h a r g e s i n c u r r e d
u n d e r t h e l e a s e a g r e e m e n t .
I t w o u l d a p p e a r , t h e r e f o r e ,
t h a t
C I T ' s w a i v e r and m i t i g a t i o n - o f - d a m a g e s a r g u m e n t s w o u l d
a p p l y
i n
s u b s t a n t i a l l y t h e
same
way
t o
a l l c l a s s
members.
T h e r e f o r e ,
CIT h a s n o t d e m o n s t r a t e d
t h a t any i n d i v i d u a l i z e d
p r o o f w o u l d be r e q u i r e d r e g a r d i n g
e i t h e r o f t h e s e
d e f e n s e s .
F i n a l l y , we c o n s i d e r C I T ' s a r g u m e n t t h a t
i t s v o l u n t a r y -
payment d e f e n s e
r a i s e s
i n d i v i d u a l i z e d i s s u e s
t h a t
d e f e a t
a
f i n d i n g o f p r e d o m i n a n c e .
" T h i s C o u r t h a s l o n g r e c o g n i z e d t h e
d e f e n s e o f v o l u n t a r y p a y m e n t . "
U - H a u l Co. o f A l a b a m a , I n c .
v .
J o h n s o n , 893 So. 2d 307, 311 ( A l a . 2 0 0 4 ) .
New J e r s e y h a s a l s o
r e c o g n i z e d
t h e d e f e n s e .
" I n b o t h A l a b a m a and New J e r s e y , a
p a r t y who v o l u n t a r i l y p a y s sums w i t h o u t
o b j e c t i o n
[ w i t h
f u l l
k n o w l e d g e o f a l l
t h e f a c t s ] c a n n o t s u b s e q u e n t l y m a i n t a i n a ...
c l a i m t o r e c o v e r
t h e f u n d s p a i d
a b s e n t
f r a u d ,
d u r e s s , [ o r ]
e x t o r t i o n . "
C I T ' s
b r i e f , a t 30
( c i t a t i o n s
o m i t t e d ) .
See,
e.g.,
U - H a u l , 893 So. 2d a t 311 ( q u o t i n g Mt. A i r y I n s .
Co. v .
Doe Law F i r m , 668 So. 2d 534, 537 ( A l a .
1 9 9 5 ) ) .
31
1060771
As CIT a c k n o w l e d g e s , A l a b a m a l a w r e c o g n i z e s a
" ' m i s t a k e '
e x c e p t i o n t o t h e v o l u n t a r y payment
[ d e f e n s e ] . "
C I T ' s
b r i e f ,
a t 55.
I n t h a t
r e g a r d ,
" [ i ] t i s w e l l
s e t t l e d
t h a t money
v o l u n t a r i l y
p a i d u n d e r a m i s t a k e o f f a c t may be
r e c o v e r e d ,
e v e n where t h e p a r t y p a y i n g h a d means o f a s c e r t a i n i n g t h e r e a l
f a c t s . "
S h e r r i l l v . F r a n k M o r r i s P o n t i a c - B u i c k - G M C , I n c . ,
366
So.
2d 2 5 1 , 257
( A l a .
1978)
( T o r b e r t ,
C . J . ,
c o n c u r r i n g
s p e c i a l l y )
( c i t a t i o n s o m i t t e d ) .
I n s o f a r as t h i s e x c e p t i o n i s
c o n c e r n e d , a c c o r d i n g t o C I T , " t h e r e i s no d i f f e r e n c e b e t w e e n
New J e r s e y l a w and
... A l a b a m a l a w . " C I T ' s b r i e f , a t 55.
The f o u n d a t i o n f o r
C I T ' s a r g u m e n t t h a t M c F a d d e n ' s
c l a i m s
a r e b a r r e d by t h e
v o l u n t a r y - p a y m e n t d o c t r i n e i s
t h e u n d i s p u t e d
e v i d e n c e t h a t McFadden " p a i d i n v o i c e s w i t h a l i n e i t e m s h o w i n g
' I n s u r a n c e
C h a r g e s '
o f $15.15
f o r 58 months
w i t h o u t
any
i n q u i r y o r o b j e c t i o n . "
C I T ' s b r i e f , a t 2 9 - 3 0 .
However, as
t h e
t r i a l c o u r t n o t e d i n t h e c l a s s - c e r t i f i c a t i o n o r d e r , " [ i ] f
p a y i n g t h e c h a r g e a f t e r b e i n g
b i l l e d f o r
i t
i s enough t o g i v e
r i s e t o t h e d e f e n s e o f ... v o l u n t a r y p a y m e n t , t h e n t h e c o u r t
may a p p l y t h a t d e f e n s e a c r o s s t h e b o a r d t o e a c h c l a s s member."
( E m p h a s i s added.)
F u r t h e r m o r e , CIT p o i n t s t o no
e v i d e n c e
i n d i c a t i n g
t h a t McFadden o r any o t h e r member o f t h e c l a s s
32
1060771
r e c e i v e d
any
i n f o r m a t i o n ,
much
l e s s
f u l l
i n f o r m a t i o n ,
r e g a r d i n g t h e r e a s o n a b l e n e s s o f t h e i n s u r a n c e c h a r g e s o r t h e
manner i n
w h i c h CIT s e t i t s i n s u r a n c e c h a r g e s , a l l o c a t e d t h o s e
c h a r g e s
b e t w e e n
i t and
o t h e r
c o m p a n i e s ,
o r
o t h e r w i s e
a d m i n i s t e r e d
i t s i n s u r a n c e
p r o g r a m s .
Thus,
we
a r e n o t
c o n v i n c e d b y C I T ' s a r g u m e n t t h a t i t s
v o l u n t a r y - p a y m e n t
d e f e n s e
r a i s e s
i n d i v i d u a l i z e d
i s s u e s
t h a t
d e f e a t
a
f i n d i n g
o f
p r e d o m i n a n c e .
C o n c l u s i o n
F o r t h e f o r e g o i n g r e a s o n s , we c o n c l u d e
t h a t t h e
t r i a l
c o u r t d i d
n o t e x c e e d i t s d i s c r e t i o n i n c e r t i f y i n g t h i s c a s e as
a
c l a s s
a c t i o n .
T h e r e f o r e ,
t h e
t r i a l
c o u r t ' s
c l a s s -
c e r t i f i c a t i o n o r d e r i s a f f i r m e d .
AFFIRMED.
W o o d a l l and P a r k e r , J J . , c o n c u r .
L y o n s ,
S m i t h ,
M u r d o c k ,
and Shaw, J J . ,
c o n c u r
i n t h e
r a t i o n a l e i n p a r t and c o n c u r i n t h e r e s u l t .
S t u a r t and B o l i n , J J . , c o n c u r i n t h e r e s u l t .
Cobb, C . J . , r e c u s e s
h e r s e l f .
33
1060771
LYONS,
J u s t i c e
( c o n c u r r i n g
i n t h e r a t i o n a l e
i n p a r t
and
c o n c u r r i n g i n t h e r e s u l t ) .
I c o n c u r i n a l l
a s p e c t s o f t h e m a i n o p i n i o n
e x c e p t f o r
P a r t I I ,
as t o w h i c h I c o n c u r i n t h e r e s u l t .
S m i t h , M u r d o c k , and Shaw, J J . , c o n c u r .
34 | October 30, 2009 |
c69cfd20-7711-4819-b6bc-4d46917247d3 | Bradley Byrne et al. v. Blaine Galliher et al. | N/A | 1080247 | Alabama | Alabama Supreme Court | REL: 11/25/2009
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2009-2010
____________________
1080247
____________________
Bradley Byrne et al.
v.
Blaine Galliher et al.
Appeal from Montgomery Circuit Court
(CV-07-900586)
On Application for Rehearing
SMITH, Justice.
This Court's opinion of May 29, 2009, is withdrawn, and
the following is substituted therefor.
1080247
The two-year-college system was previously known as the
1
"Alabama College System"; it has been renamed the "Alabama
Community College System."
Policy 611.01, adopted in 1994, requires an employee
2
seeking unpaid leave to obtain the consent of the president of
the college at which the employee is employed and the consent
of the chancellor of the Department of Postsecondary
Education.
2
This appeal involves challenges to two policies the State
Board of Education ("the Board") adopted regarding the two-
year-college system. The Montgomery Circuit Court entered a
summary judgment declaring the policies invalid and issued an
injunction preventing the implementation of those policies.
We reverse and remand.
Facts and Procedural History
On August 23, 2007, the Board adopted the two policies at
issue in this case: Policy 609.04 and Policy 220.01. Policy
609.04, entitled "Flexible Work Schedule," provides:
"All Alabama College System
employees engaged in
[1]
outside employment or activities during their normal
work hours must request personal, annual, or unpaid
leave in accordance with State Board policy. Unpaid
leave may be granted only in accordance with and for
the reasons outlined in Policy 611.01: Leaves
Without Pay."2
Policy 220.01 prohibits the two-year-college system from
employing elected State officials or entering into certain
1080247
Policy 220.01 defines an "elected state official" as "[a]
3
person elected to a statewide office by a vote of the people
and any member of the State Legislature. The term also
includes any person appointed to any of these offices to fill
a vacancy."
3
contracts with elected State officials. Specifically, Policy
3
220.01 provides:
"Employing authorities may not employ any elected
state official. However, an elected state official
who was actively employed as of the effective date
of this policy may be continued in the same position
of employment until the expiration of his or her
term of office then in effect. In such case, the
elected state official shall not be eligible for
promotion, advancement, or any non-statutory pay
raise or bonus during his or her term of office.
"....
"Employing authorities may not enter into any
personal or professional services contract under
which services are to be performed by an elected
state official.
"Employing authorities may not enter into any other
type of contract or business relationship with any
corporation, partnership, company, joint venture, or
other business entity in which any elected state
official holds a financial interest of five percent
(5%) or more.
"Notwithstanding the foregoing, any contract of the
kind described above which is in existence as of the
effective
date
of
this
policy
need
not
be
immediately terminated but shall be terminated on
the earliest date for which the contract may be
terminated without penalty, and no such contract may
be renewed, extended, or amended to expand the term
or alter the termination procedure or penalties.
1080247
The plaintiffs are Representative Blaine Galliher;
4
Representative Thomas Jackson; Representative Terry Spicer;
Thomas D. Dermody; Freddie Williams, Jr.; Senator Linda
Coleman; Representative Merika Coleman; and James P. Wrye.
Former Representative Laura Hall was, but no longer is, a
plaintiff.
Byrne resigned as chancellor of the Department of
5
Postsecondary Education effective May 28, 2009. Rule 43(b),
Ala. R. App. P., states:
4
"....
"An employee who is elected or re-elected to an
elected state office after the effective date of
this policy must submit his or her resignation
effective on or before taking office. Nothing in
this policy shall be construed to restrict or limit
an employee's right to campaign for elected state
office, provided that campaign-related activities
are conducted while on approved leave or on personal
time
before
or
after
work
and
on
holidays,
consistent with state law."
The plaintiffs filed the present action on August 24,
2007, the day after the Board adopted the policies. Most of
the plaintiffs are members of the Alabama Legislature who were
also employed in or who desired to become employed in the two-
year-college system. The plaintiffs sought (1) a judgment
4
declaring Policy 609.04 and Policy 220.01 void under Alabama
law and (2) injunctive relief prohibiting the defendants--the
Department of Postsecondary Education and its chancellor,
Bradley
Byrne,
and
the
Board
and
its
members--from
5
1080247
"When a public officer is a party to an appeal or
other proceeding in the appellate court in that
officer's official capacity, and during its pendency
dies, resigns, or otherwise ceases to hold office,
the action shall not abate and the public officer's
successor is automatically substituted as a party."
Rule 43(c), Ala. R. App. P., states: "An order of
substitution may be entered at any time, but the omission to
enter such order shall not affect the substitution."
The members of the Board at the time the action was filed
6
were Governor Bob Riley; Randy McKinney; Betty Peters;
Stephanie W. Bell; Dr. Ethel H. Hall; Ella B. Bell; David F.
Byers, Jr.; Sandra Ray; and Dr. Mary Jane Caylor.
5
implementing Policy 609.04 and Policy 220.01 (all the
defendants are hereinafter collectively referred to as "the
Board defendants"). The plaintiffs challenged the policies
6
as, among other things, conflicting with provisions of the
Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala.
Code 1975 ("the AAPA"), the Fair Dismissal Act, § 36-26-100 et
seq., Ala. Code 1975, and § 17-1-4, Ala. Code 1975. The
plaintiffs
also
contended
that
the
policies
were
unconstitutional.
After the Board defendants filed an answer to the
complaint, the plaintiffs moved for a summary judgment on the
ground that Policy 609.04 and Policy 220.01 had been adopted
in violation of the AAPA. The Board defendants filed a
1080247
The Board defendants appealed to this Court challenging
7
the preliminary injunction; that appeal was docketed in this
Court as case no. 1070979. Upon the record being certified
as complete in that appeal, however, the parties jointly moved
this Court to remand the case for the trial court to enter a
final judgment on the merits. On August 8, 2008, this Court
remanded the case to the trial court, and the appeal in case
no. 1070979 was stayed. This Court received notice on
December 22, 2008, of the entry of a final judgment by the
trial court, and on December 28, 2008, the appeal in case no.
6
counterclaim seeking a judgment declaring that Policy 609.04
and Policy 220.01 were valid and that the policies did not
conflict with the AAPA or with any of the other provisions of
Alabama law cited by the plaintiffs.
Along with a brief and evidentiary submissions, the Board
defendants filed a cross-motion for a summary judgment as to
each
of
the
plaintiffs'
statutory
and
constitutional
challenges to the policies. The plaintiffs filed a reply
brief along with evidentiary submissions arguing that the
policies indeed were in conflict with each of the statutory
and
constitutional
provisions
addressed
by
the
Board
defendants in their cross-motion for a summary judgment.
On March 31, 2008, the trial court heard oral argument on
the cross-motions for a summary judgment. The trial court
entered an order the next day preliminarily enjoining the
Board defendants from implementing the policies.
7
1080247
1070979 was dismissed as moot.
7
On November 14, 2008, the trial court entered an order
granting the plaintiffs' summary-judgment motion. The trial
court held that Policy 609.04 and Policy 220.01 were "null and
void" because, it concluded, they had been adopted in
violation of the AAPA. The trial court also permanently
enjoined the Board defendants from "further implementing and
enforcing State Board of Education Policies 609.04 and 220.01
unless and until said policies are promulgated pursuant to the
Alabama Administrative Procedure Act" and from interfering
"with the flexible schedule arrangements previously approved
and permitted for legislators by Postsecondary Education
Department institutions and programs." The Board defendants
appeal.
Standard of Review
This Court reviews a summary judgment de novo. Maciasz
v. Fireman's Fund Ins. Co., 988 So. 2d 991, 994-95 (Ala.
2008). This appeal presents no genuine issues of material
fact, but only questions of law, which this Court also reviews
de novo, giving no presumption of correctness to the trial
court's rulings on such questions. See, e.g., Pittsburg &
1080247
Citing Classroomdirect.com, LLC v. Draphix, LLC, 992 So.
8
2d 692 (Ala. 2008), the plaintiffs contend that this Court
should determine only whether the trial court exceeded its
discretion
in
issuing
the
permanent
injunction.
In
Classroomdirect.com, this Court recognized the general rule
that "'"[a] preliminary injunction is reviewed under an
abuse-of-discretion standard, whereas a permanent injunction
is reviewed de novo."'" 992 So. 2d at 700 (quoting Weeks v.
Wolf Creek Indus., Inc., 941 So. 2d 263, 271 (Ala. 2006)).
However,
the
permanent
injunction
at
issue
in
Classroomdirect.com, which we reviewed to determine whether
the trial court had exceeded its discretion, was based on at
least two facts not present in this case. First, the trial
court "considered ore tenus testimony at the hearing on the
postjudgment motions filed by Classroom Direct." 992 So. 2d
at 701. Second, the permanent injunction issued in
Classroomdirect.com addressed claims alleging violations of
the Lanham Trademark Act, 15 U.S.C. § 1051 et seq. ("the
Lanham Act"). As this Court noted, "the federal courts apply
an abuse-of-discretion standard of review, which this Court
now refers to as whether the trial court has exceeded its
discretion, to the entry of a permanent injunction in a case
brought pursuant to the Lanham Act." 992 So. 2d at 701
(footnote omitted; citation omitted). Consequently, this
Court
reviewed
the
permanent
injunction
at
issue
in
Classroomdirect.com to determine whether the trial court had
exceeded its discretion.
8
Midway Coal Mining Co. v. Tuscaloosa County, 994 So. 2d 250,
254 (Ala. 2008). Additionally, under the circumstances of
this case, our review of the issuance of the permanent
injunction is de novo. Drummond Co. v. Walter Indus., Inc.,
962 So. 2d 753, 773 (Ala. 2006).8
Discussion
I.
1080247
Section 41-22-5, Ala. Code 1975, provides, in part:
9
"(a) Prior to the adoption, amendment, or repeal
of any rule, the agency shall:
"(1) Give at least 35 days' notice of
its intended action. Date of publication in
the Alabama Administrative Monthly shall
constitute the date of notice. The notice
shall include a statement of either the
terms or substance of the intended action
or a description of the subjects and issues
involved, shall specify a notice period
ending not less than 35 days or more than
90 days from the date of the notice, during
which period interested persons may present
their views thereon, and shall specify the
place where, and the manner in which[,]
interested persons may present their views
thereon. The notice shall be given to the
chairman of the legislative committee, as
provided in Section 41-22-23, and mailed to
all persons who pay the cost of such
mailing and who have made timely request of
the agency for advance notice of its
rulemaking
proceedings
and
shall
be
published, prior to any action thereon, in
the Alabama Administrative Monthly. A
complete copy of the proposed rule shall be
filed with the secretary of the agency and
9
A.
The trial court held that, in adopting the policies, the
Board failed to comply with the requirements of the AAPA
codified at § 41-22-5 and § 41-22-23, Ala. Code 1975. Section
41-22-5 sets forth certain requirements that notice be given
before an administrative agency adopts a rule.9
1080247
the Legislative Reference Service.
"(2) Afford all interested persons
reasonable opportunity to submit data,
views, or arguments, orally or in writing.
The agency shall consider fully all written
and
oral
submissions
respecting
the
proposed rule. Upon adoption of a rule, the
agency, if conflicting views are submitted
on the proposed rule, shall issue a concise
statement of the principal reasons for and
against
its
adoption,
incorporating
therein
its
reasons
for
overruling
any
considerations urged against its adoption.
"(b) Notwithstanding
any
other
provision
of
this
chapter to the contrary, if an agency finds that an
immediate danger to the public health, safety, or
welfare requires adoption of a rule upon fewer than
35 days' notice or that action is required by or to
comply with a federal statute or regulation which
requires adoption of a rule upon fewer than 35 days'
notice and states in writing its reasons for that
finding, it may proceed without prior notice or
hearing or upon any abbreviated notice and hearing
that it finds practicable, to adopt an emergency
rule. The rule shall become effective immediately,
unless otherwise stated therein, upon the filing of
the rule and a copy of the written statement of the
reasons therefor with the Legislative Reference
Service and the secretary of the agency. The rule
may be effective for a period of not longer than 120
days and shall not be renewable. ...
"(c) It is the intent of this section to
establish basic minimum procedural requirements for
the adoption, amendment, or repeal of administrative
rules. Except for emergency rules which are provided
for
in
subsection
(b)
of
this
section,
the
provisions of this section are applicable to the
exercise of any rulemaking authority conferred by
10
1080247
any statute, but nothing in this section repeals or
diminishes additional requirements imposed by law or
diminishes or repeals any summary power granted by
law to the state or any agency thereof.
"(d) ... A proceeding to contest any rule on the
ground
of
noncompliance
with
the
procedural
requirements of this section must be commenced
within two years from the effective date of the
rule; provided, however, that a proceeding to
contest a rule based on failure to provide notice as
herein required may be commenced at any time."
In the trial court, the Board defendants contended that
10
the Board had "substantially complied" with the AAPA in
adopting the policies. However, the Board defendants have
abandoned that argument on appeal.
11
Section 41-22-23, Ala. Code 1975, requires that the
agency provide copies of a proposed rule to the chair of the
Alabama Legislature's Joint Committee on Administrative
Regulation Review and authorizes that committee, among other
things, (1) to hold public hearings on the proposed rule; (2)
to propose an amendment to the proposed rule; and (3) to
approve or disapprove the proposed rule. In the present case,
it is undisputed that the Board adopted Policy 609.04 and
Policy 220.01 without complying with the requirements set
forth in § 41-22-5 and § 41-22-23.
10
Section 41-22-3(1) of the AAPA defines an "agency" as:
"Every
board,
bureau,
commission,
department,
officer, or other administrative office or unit of
1080247
12
the state, including the Alabama Department of
Environmental Management, other than the Legislature
and its agencies, the Alabama State Port Authority,
the courts, the Alabama Public Service Commission,
or
the
State
Banking
Department,
whose
administrative procedures are governed by Sections
5-2A-8 and 5-2A-9. The term shall not include
boards of trustees of postsecondary institutions,
counties, municipalities, or any agencies of local
governmental units, unless they are expressly made
subject to this chapter by general or special law."
(Emphasis added.)
The Board defendants contend that in its governance of
the two-year colleges, the Board satisfies the exception,
emphasized in the above definition, for "boards of trustees of
postsecondary
institutions."
Alternatively,
the
Board
defendants contend that, even if the Board is not exempted
from the definition of "agency" under § 41-22-3(1), the
requirements of the AAPA nonetheless do not apply to Policy
609.04 and Policy 220.01 because, they argue, those policies
are exempted from the definition of "rule" in § 41-22-3(9) of
the AAPA. We agree with the Board defendants' latter
contention and therefore need not decide whether the Board is
exempted from the definition of "agency" under § 41-22-3(1) of
the AAPA.
"Rule" is defined in § 41-22-3(9) as follows:
1080247
13
"Each agency regulation, standard, or statement of
general applicability that implements, interprets,
or prescribes law or policy, or that describes the
organization, procedure, or practice requirements of
any agency and includes any form which imposes any
requirement
or
solicits
any
information
not
specifically required by statute or by an existing
rule or by federal statute or by federal rule or
regulation .... The term includes the amendment or
repeal of all existing rules, but does not include
any of the following:
"a. Statements concerning only the
internal management of an agency and not
affecting private rights or procedures
available to the public.
"....
"c. Intergovernmental, interagency,
and intra-agency memoranda, directives,
manuals, or other communications which do
not substantially affect the legal rights
of, or procedures available to, the public
or any segment thereof.
"...."
The Board defendants contend that one or both of the
exceptions quoted above apply to the policies at issue in this
case. They argue that Policy 609.04 and Policy 220.01 are
personnel and employment policies that by their terms govern
only the internal management of the two-year-college system.
The parties agree that Policy 609.04 did away with the
existing practice of individual two-year-college presidents
1080247
14
permitting employees to work flexible schedules on a case-by-
case basis. The Board defendants assert that the Board
adopted Policy 609.04 and Policy 220.01 in response to
Advisory Opinion No. 2002-28, issued by the Alabama Ethics
Commission, which stated that a public employee who is also an
elected official must take annual leave, personal leave, or
unpaid leave to attend to his or her duties as an elected
official. The advisory opinion stated that a "flexible
schedule" should be permitted only after leave has been
exhausted and only if the public employer has adopted a
flexible-schedule policy equally applicable to all employees.
The Board defendants argue that Policy 609.04 and Policy
220.01 command or direct the activities of only the employees
of the two-year colleges. For example, Policy 609.04
expressly applies to "[a]ll Alabama College System employees
engaged in outside employment or activities during their
normal work hours." Policy 609.04 provides a uniform
"Flexible Work Schedule" policy for employees of two-year
colleges. It supplements, and operates by reference to,
existing leave policies such as Policy 611.01, "Leaves without
Pay," and Policy 610.01, "Leaves with Pay."
1080247
The Board defendants assert that Wood is the only
11
reported decision concerning whether personnel or employment
policies are "rules" subject to the AAPA. The plaintiffs do
not dispute that assertion.
15
Similarly, the Board defendants contend regarding Policy
220.01:
"Policy 220.01 is merely a personnel policy that by
its terms governs only the two-year colleges.
Policy 220.01 does not attempt to command or direct
the public, or the legislature, to do anything or
refrain from doing anything. Policy 220.01 'Elected
State
Officials:
Employment
Prohibited'
simply
designates a group of State employees as ineligible
for dual-employment by, or certain contracts with,
the two-year colleges. ... Certainly nothing in
either of the Policies would prevent those who are
interested in public education from running for, or
holding, any elected office, or from discharging the
duties associated with any such office."
(Board defendants' reply brief, pp. 17-18.) Thus, the Board
defendants contend that the policies, as personnel or
employment policies, govern only the internal management of
the two-year-college system and are therefore not "rules," as
that term is defined in the AAPA. To support their position,
the Board defendants rely primarily on Wood v. State Personnel
Board, 705 So. 2d 413 (Ala. Civ. App. 1997).11
Wood involved a challenge by an employee of the
Department of Corrections ("DOC") to the DOC's drug-testing
policy. The Court of Civil Appeals, relying on the same
1080247
16
exceptions in § 41-22-3(9) at issue here, held that the drug-
testing policy was "not subject to the formal rulemaking
requirements of the AAPA." 705 So. 2d at 416. The court
reasoned:
"One of the primary purposes of the AAPA is '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.'
Ala. Code 1975, § 41-22-2(a) (emphasis added).
Promulgation
of
the DOC regulation concerning
employee drug testing was not an 'action affecting
the rights and duties of the public.' Instead, the
regulation is an internal policy and procedure
statement relating strictly to DOC personnel.
"The AAPA excludes from the requirement of
administrative rulemaking:
"'a. Statements concerning only the
internal management of an agency and not
directly
and
substantially
affecting
private rights or procedures available to
the public.
"'....
"'c.
[I]ntra-agency
memoranda,
directives,
manuals
or
other
communications
which do not substantially affect the legal
rights of, or procedures available to, the
public or any segment thereof.'
"Ala. Code 1975, § 41-22-3(9)(a) and (c).
"The Court of Appeals of Hawaii dealt with an
exclusion
similar
to
that
appearing
in
§
41-22-3(9)(a) in In the Interest of Doe, 9 Haw. App.
406, 844 P.2d 679 (1992). In that case, the court
1080247
17
held that a police department's field sobriety
testing
procedures
were
not
subject
to
administrative rulemaking because they came within
a statutory exclusion for matters 'concerning the
internal management of an agency ... not affecting
private rights.' See also Rossie v. State/Dep't of
Revenue, 133 Wis. 2d 341, 395 N.W.2d 801 (1986),
review denied, 134 Wis. 2d 457, 401 N.W.2d 10 (1987)
(departmental directive that prohibited smoking in
certain areas of building and authorized discipline
for infractions concerned internal management of
agency and was not subject to statutory rulemaking
procedures).
"'An
agency
need
not
use
rulemaking
procedures for its rules which affect only
the
internal
personnel
practices
or
internal management of the agency.... The
mere fact that a rule relates to agency
personnel is not always sufficient to
remove it from rulemaking procedures....
The agency carries the burden of justifying
its avoidance of [rulemaking] notice and
comment procedures by showing that the
effect of the rule is within the personnel
or
management
classes
and
is
solely
internal, with no effect on the public.'
"J. O'Reilly, Administrative Rulemaking § 3.06 at
47-48 (1983).
"The Commentary to § 41-22-3(9) states that in
determining what agency actions are subject to
administrative rulemaking it is important to
"'distinguish the regulatory activity that
resembles legislation, applicable to all
persons or a relatively large segment of
the population outside the context of any
specific controversy, from administrative
activity that has a more judicial character
and which, therefore, ought to be subject
1080247
18
to judicial review. See generally K.
Davis, Administrative Law Text § 5.06, at
137-38 (3d ed. 1972).'
"Regulation 227 is not analogous to 'legislation
applicable to all persons or a relatively large
segment of the population outside the context of any
specific controversy.' Instead, it is more like
'administrative
activity
that
has
a
judicial
character' because it arises out of a specific
controversy
(an
employee's
alleged
use
of
a
controlled substance) and addresses personal rights
within the context of a personnel action. Because
Regulation 227 relates strictly to the internal
personnel
practices
of
the
DOC
and
has
no
appreciable effect on the public, it was not subject
to the rulemaking requirements of §§ 41-22-5 and
-6."
705 So. 2d at 416-17.
The plaintiffs contend that the policies at issue in the
present case are not solely internal-management policies.
They argue that the policies are not analogous to the drug-
testing policy at issue in Wood because, they contend, Policy
609.04 and Policy 220.01 have a "direct impact on the public."
(Plaintiffs' brief, p. 41.) Specifically, the plaintiffs
contend that those policies will "directly affect[]" the
number of legislators employed in the two-year-college system
and that the composition of the legislature "will be forever
altered as individuals have to quit their postsecondary jobs
because they have, or will, run out of leave necessary to
1080247
19
continue their service in the legislature." (Plaintiffs'
brief, pp. 42-43.) According to the plaintiffs, Policy 609.04
and Policy 220.01 will affect individual legislators who
collectively represent between 500,000 and 600,000 people;
thus, the plaintiffs argue, the policies will affect a large
segment of the public. The plaintiffs also assert that the
policies will affect a number of various alleged "private
rights."
The plaintiffs rely primarily on two cases in support of
their argument that Policy 609.04 and Policy 220.01 "directly
affect" the public and private rights: Stiff v. Alabama
Alcoholic Beverage Control Board, 878 So. 2d 1138 (Ala. 2003),
and Jefferson County v. Alabama Criminal Justice Information
Center Commission, 620 So. 2d 651 (Ala. 1993). Neither of
those cases, however, involved personnel or employment
policies like those at issue in the present case. Stiff
involved an internal pricing procedure of the Alcoholic
Beverage Control Board pursuant to which the price of table
wine was set. 878 So. 2d at 1145. Based on authority from
other jurisdictions establishing that a pricing policy is an
administrative "rule," this Court held that the challenged
1080247
20
procedure was a rule subject to the provisions of the AAPA.
878 So. 2d at 1145 & n.12. The plaintiffs here have not
provided any authority suggesting that an employment policy
like the policies at issue in the present case--which may or
may not affect the public--is a "rule" subject to the AAPA.
Therefore, Stiff does not support the plaintiffs' position.
Likewise, Alabama Criminal Justice Information Center
Commission ("ACJIC"), supra, does not support the plaintiffs'
position. ACJIC involved a challenge to the authority of the
Alabama Criminal Justice Information Center Commission ("the
ACJIC") to assess charges from law-enforcement agencies for
computer time. 620 So. 2d at 652. This Court held that the
legislation creating the ACJIC did not authorize the ACJIC to
charge user agencies for access to its computer system. 620
So. 2d at 658. Although this Court also held that the ACJIC
was an administrative agency subject to the AAPA, 620 So. 2d
at 659, this Court did not address whether the ACJIC's policy
of charging for the use of its computer system was a "rule"
under the AAPA. Indeed, in light of the holding that the
ACJIC was not authorized to assess such charges, there was no
opportunity for the Court to consider whether the policy
1080247
21
authorizing the charges was a "rule" under the AAPA.
Ultimately, the plaintiffs' arguments that Policy 609.04
and Policy 220.01 have an effect on the public or on a legal
or private right depend on the fact that legislators are
elected
officials
who
represent
some
segment
of
the
population. However, simply because the policies may affect
the ability of two-year-college employees to hold outside
employment as legislators or to discharge the duties of a
second job in addition to their two-year-college employment,
it does not follow that the policies affect the public or
private rights in the manner contemplated by § 41-22-3(9)a. or
§ 41-22-3-(9)c. of the AAPA. Like the policy at issue in
Wood, Policy 609.04 and Policy 220.01 are "not analogous to
'legislation applicable to all persons or a relatively large
segment of the population outside the context of any specific
controversy.' Instead, [they are] more like 'administrative
activity that has a judicial character' because [they] arise[]
out of a specific controversy"--i.e., the pursuit of outside
employment by an employee of the two-year-college system or,
for example, the decision to forgo employment in the two-year-
college system upon becoming an elected official--"and
1080247
22
address[] personal rights within the context of a personnel
action." See Wood, 705 So. 2d at 417. Ultimately, the
plaintiffs cite no authority holding that whether an agency's
employment and personnel policies have an effect on the public
is determined by whether the employee is an elected official.
Accordingly, we hold that Policy 609.04 and Policy 220.01
are internal-management policies and as such are exempt from
the definition of "rule" in the AAPA. Thus, the trial court
erred in holding that the Board was required to follow the
AAPA in adopting the policies.
B.
The only issue presented in the plaintiffs' summary-
judgment motion, as noted above, is whether the policies were
adopted in violation of the AAPA. The plaintiffs' complaint
included additional, non-AAPA challenges to the policies, and,
as noted, the Board defendants moved for a summary judgment on
their claim seeking a declaration that Policy 609.04 and
Policy 220.01 were valid, both as to the plaintiffs'
challenges under the AAPA and otherwise. The plaintiffs filed
opposing materials to the Board defendants' cross-motion for
a summary judgment, but, significantly, the plaintiffs did not
1080247
23
move for a summary judgment as to their non-AAPA challenges.
In their initial brief to this Court on appeal, the Board
defendants address each of the non-AAPA challenges on which
they moved for a summary judgment. Their stated reason for
addressing the non-AAPA challenges is because, they contend,
this Court could consider those challenges as alternative
grounds upon which to affirm the summary judgment in favor of
the plaintiffs. In addition to arguing against an affirmance
on those grounds, however, the Board defendants also ask us to
reverse the summary judgment on those non-AAPA claims.
The trial court's order granting the plaintiffs' summary-
judgment motion also denied the defendants' cross-motion for
a summary judgment as to the non-AAPA challenges. In
particular, the trial court's order stated that because it had
determined that the policies violated the AAPA, "the court
need not reach the other issues raised by the plaintiffs in
this case." Thus, the trial court expressly declined to rule
on the plaintiffs' non-AAPA challenges to the policies.
In their brief to this Court, the plaintiffs assert that,
because the plaintiffs did not move for a summary judgment on
the non-AAPA grounds, we may not affirm or reverse the
1080247
24
judgment in their favor on any of the alternative grounds
addressed by the Board defendants. More specifically, the
plaintiffs argue that reviewing the non-AAPA challenges would
be improper at this stage because, rather than affirming on an
alternative basis raised in the plaintiffs' summary-judgment
motion granted by the trial court, we would be reviewing
grounds raised in the cross-motion for a summary judgment
filed by the Board defendants, which the trial court denied.
Because the trial court expressly refused to address the
non-AAPA challenges and because the plaintiffs, as the
appellees, ask us not to address alternative bases upon which
to affirm the summary judgment entered in their favor, citing
the necessity for additional materials in support of their
position, we decline to address the non-AAPA challenges under
the circumstances of this case. See, e.g., Purcell v. Alfa
Mut. Ins. Co., 824 So. 2d 763, 766 n.1 (Ala. Civ. App. 2001)
(Murdock, J., concurring in the result):
"In cases where the appellate court cannot
determine from the trial court's judgment whether
the trial court based a summary judgment on a
particular
ground,
as
a
matter
of
judicial
efficiency as much as anything, and because we
review summary judgments on a de novo basis, we have
proceeded to address that particular ground, rather
than returning the case to the trial court for
1080247
25
additional proceedings and, possibly, a second
appeal. However, in cases where it affirmatively
appears from the trial court's judgment or otherwise
that the trial court has not reached a particular
ground for summary judgment and the appellee has not
presented and argued that ground to the appellate
court, Alabama's appellate courts have declined to
consider such ground as a basis for affirming the
trial court's summary judgment. Compare Hughes v.
Allenstein, 514 So. 2d 858 (Ala. 1987) (trial court
did not state ground upon which it entered summary
judgment, but appellate court affirmed where, on
appeal,
appellee
presented
valid
basis
for
affirmance) with Blair v. Fullmer, 583 So. 2d 1307
(Ala. 1991) (declining to affirm summary judgment on
ground not ruled upon by the trial court and not
raised on appeal by appellee), and Alabama Real
Estate Appraisers Bd. v. Walker, 739 So. 2d 8 (Ala.
Civ. App. 1997), rev'd on other grounds, 739 So. 2d
14 (Ala. 1999) (ground for judgment disavowed by
trial court and not argued on appeal will not be
reached by appellate court)."
II.
In addition to granting the plaintiffs' summary-judgment
motion, the trial court provided that the Board defendants
"are permanently enjoined from further implementing
and enforcing State Board of Education Policies
609.04 and 220.01 unless and until said policies are
promulgated pursuant to the Alabama Administrative
Procedure Act, and are further permanently enjoined
to refrain from interference with the flexible
schedule
arrangements
previously
approved
and
permitted for legislators by Postsecondary Education
Department institutions and programs."
The Board defendants contend that the second part of the
trial court's injunction--which permanently enjoins the Board
1080247
26
from interfering "with the flexible schedule arrangements
previously
approved
and
permitted
for
legislators
by
Postsecondary Education Department institutions and programs"
--is "facially overboard and fatally vague." Specifically,
the Board defendants contend that "[a]s written, the trial
court's
injunction
would
prohibit
any
change
to
or
modification of those 'arrangements' even if such changes or
modifications were made in compliance with the AAPA." They
argue further:
"[I]t is not at all clear what the Board is being
forced to allow under the permanent injunction,
given that the old regime's unwritten flex-time
'arrangements' for legislators were amorphous at
best and totally 'hands off' at worst. ... Alabama
law is clear, however, that injunctions must be
clear on what they demand of the parties. See Rule
65(d)(2), Ala. R. Civ. P. (a[n] injunction must be
'specific in [its] terms' and must describe the acts
being
compelled
or
proscribed
'in
reasonable
detail'); see also, e.g., International Bhd. of
Elec. Workers v. Morton, 365 So. 2d 662, 664 (Ala.
1978) ('Since an injunctive order prohibits [or
compels]
conduct
under
threat
of
judicial
punishment, basic fairness requires that those
enjoined receive explicit notice of precisely what
conduct
is
outlawed
[or
being
compelled].')
(internal quotations omitted)."
(Board defendants' brief, p. 69.)
The
plaintiffs
respond
by
asserting
that
"[t]he
injunction, read most naturally, forbids non-compliance with
1080247
The plaintiffs also note that the Board defendants "can
12
ask the trial court for specific guidance" regarding
compliance with the injunction.
27
the AAPA; if [the Board defendants] ever do comply with AAPA,
then and only then will it be time to consider other
challenges to whatever leave policies or rules [the Board
defendants] adopt under the AAPA."
12
The sole ground on which the plaintiffs moved for a
summary judgment and on which the trial court based its
judgment is that the Board was required to, and did not,
comply with the AAPA in adopting Policy 609.04 and Policy
220.01. Thus, the only ground on which the trial court could
have relied in issuing its permanent injunction was its
erroneous conclusion that the Board was required to comply
with the AAPA in adopting the policies. Consequently, there
is no valid basis upon which to affirm the trial court's order
permanently enjoining the Board defendants from enforcing or
implementing the policies or from interfering "with the
flexible
schedule
arrangements
previously
approved
and
permitted
for
legislators
by
Postsecondary
Education
Department institutions and programs."
1080247
28
Conclusion
The judgment of the trial court is reversed, and the
cause is remanded.
APPLICATION GRANTED IN PART AND DENIED IN PART; OPINION
OF MAY 29, 2009, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND
REMANDED.
Lyons, Woodall, Stuart, Bolin, Parker, Murdock, and Shaw,
JJ., concur.
Cobb, C.J., recuses herself. | November 25, 2009 |
60a1965a-d1f9-4c9a-a3d7-6f3977b2d367 | Shirley Shepard Chalkley v. Tuscaloosa County Commission | N/A | 1070767 | Alabama | Alabama Supreme Court | REL: 09/30/2009
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s h e e t s o f
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((334) 229¬
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2009
1070767
S h i r l e y Shepard C h a l k l e y
v.
T u s c a l o o s a County Commission
Appeal from T u s c a l o o s a
C i r c u i t
Court
(CV-06-1371)
MURDOCK,
J u s t i c e .
S h i r l e y S h e p a r d C h a l k l e y a p p e a l s
f r o m a summary j u d g m e n t
e n t e r e d i n f a v o r o f t h e T u s c a l o o s a
C o u n t y C o m m i s s i o n ("the
C o m m i s s i o n " ) on
h e r
c o m p l a i n t
s e e k i n g a d e c l a r a t o r y j u d g m e n t ,
i n j u n c t i v e
r e l i e f , a n d
damages r e l a t e d t o T u s c a l o o s a
C o u n t y ' s
1070767
r e f u s a l
t o m a i n t a i n a s t o r m s e w e r
t h a t
r u n s u n d e r n e a t h
h e r
p r o p e r t y .
We
a f f i r m t h e j u d g m e n t o f t h e
t r i a l
c o u r t .
I .
F a c t s and P r o c e d u r a l H i s t o r y
The p a r t i e s a g r e e t h a t , f o r t h e p u r p o s e s o f t h i s a p p e a l ,
t h e
f a c t s
a r e
u n d i s p u t e d .
C h a l k l e y i s t h e
owner
o f
an
i n t e r e s t
i n l o t 98
o f t h e
M a l l a r d
C r e e k
s u b d i v i s i o n
("the
s u b d i v i s i o n " ) , l o c a t e d i n an u n i n c o r p o r a t e d a r e a o f T u s c a l o o s a
C o u n t y
("the
C o u n t y " ) .
The
p l a t
o f
t h e
s u b d i v i s i o n
was
a p p r o v e d by t h e C o u n t y e n g i n e e r on S e p t e m b e r 2 8 , 1987, and
was
f i l e d
f o r r e c o r d
on November 2,
1987.
A n o t e
on
t h e
p l a t
p r o v i d e d :
" A l l
e a s e m e n t s
on
t h i s
p l a t
a r e
f o r
p u b l i c
u t i l i t i e s ,
s a n i t a r y s e w e r s , s t o r m s e w e r s , and
s t o r m
d i t c h e s , and may
be u s e d f o r s u c h p u r p o s e s t o s e r v e
p r o p e r t y b o t h w i t h i n
and w i t h o u t
t h i s
s u b d i v i s i o n .
No p e r m a n e n t s t r u c t u r e o r o t h e r o b s t r u c t i o n
s h a l l be
l o c a t e d w i t h i n t h e l i m i t s o f a d e s i g n a t e d e a s e m e n t . "
A 2 0 - f o o t - w i d e d r a i n a g e e a s e m e n t d e s i g n a t e d i n t h e
p l a t
e x t e n d s a c r o s s l o t 98 and
a l s o a c r o s s l o t s
97,
99,
100,
and
101.
A c o n c r e t e s t o r m s e w e r was
i n s t a l l e d
i n t h e
d r a i n a g e
e a s e m e n t by t h e d e v e l o p e r o f t h e s u b d i v i s i o n .
The s t o r m s e w e r
r u n s t h r o u g h a p a r t o f l o t 98.
On F e b r u a r y 24, 1993, t h e C o m m i s s i o n a d o p t e d a r e s o l u t i o n
t h a t p r o v i d e d , i n p e r t i n e n t
p a r t :
2
1070767
" 1 .
T h a t t h e C o u n t y
a c c e p t t h e s t r e e t s ,
t o g e t h e r
w i t h
d r a i n a g e
s t r u c t u r e s i n ,
and w h i c h a r e a
p a r t
o f ,
s a i d
s t r e e t s w h i c h
a r e l o c a t e d
i n
d e d i c a t e d
s t r e e t
r i g h t s - o f - w a y ,
f o r
m a i n t e n a n c e
b y
t h e
T u s c a l o o s a
C o u n t y
C o m m i s s i o n .
The
d r a i n a g e
s t r u c t u r e s
d e s c r i b e d
h e r e i n
a r e t h o s e
s t r u c t u r e s
w h i c h a r e a p a r t o f o r a r e l o c a t e d i n t h e s t r e e t s
( c u r b s and g u t t e r ,
c a t c h
b a s i n s ,
f l u m e s and
p i p e s )
and
does
n o t
i n c l u d e
any
n a t u r a l
w a t e r w a y
w h i c h
d r a i n s
s u r f a c e w a t e r i n t h e a r e a . "
The
p a r t i e s
a g r e e
t h a t
on t h e f a c e
o f t h e r e s o l u t i o n t h e
C o m m i s s i o n a c c e p t e d f o r m a i n t e n a n c e
o n l y t h o s e p a r t s o f t h e
s t o r m - d r a i n a g e
s y s t e m
t h a t
a r e l o c a t e d
w i t h i n
t h e
s t r e e t
r i g h t s - o f - w a y
i n t h e s u b d i v i s i o n .
A l a r g e s i n k h o l e d e v e l o p e d i n C h a l k l e y ' s
p r o p e r t y ,
w h i c h
C h a l k l e y
a l l e g e s was c a s e d by t h e f a i l u r e o f t h e s t o r m
d r a i n
r u n n i n g u n d e r n e a t h t h e p r o p e r t y .
C h a l k l e y n o t i f i e d t h e C o u n t y
o f t h e p r o b l e m , b u t i t d e c l i n e d t o i n v e s t i g a t e o r t o r e p a i r
t h e damaged s t o r m d r a i n on t h e b a s i s t h a t t h e C o u n t y d i d
n o t
a c c e p t t h e r e s p o n s i b i l i t y f o r m a i n t a i n i n g
t h e p a r t s o f t h e
s t o r m d r a i n l o c a t e d on p r i v a t e
p r o p e r t y .
C h a l k l e y s u b s e q u e n t l y s u e d t h e C o m m i s s i o n , a l l e g i n g
t h a t
t h e
f a i l u r e o f t h e s t o r m d r a i n c r e a t e d a d a n g e r o u s
c o n d i t i o n
on h e r p r o p e r t y and a s k i n g
t h a t t h e t r i a l
c o u r t
d e c l a r e
t h a t
t h e C o u n t y was r e s p o n s i b l e f o r r e p a i r i n g t h e s t o r m d r a i n and
f o r damage t o h e r p r o p e r t y .
The C o m m i s s i o n f i l e d a m o t i o n f o r
3
1070767
a summary j u d g m e n t
on
t h e
b a s i s
o f
t h e
F e b r u a r y
24,
1993,
r e s o l u t i o n ; C h a l k l e y o p p o s e d t h e
m o t i o n .
On
F e b r u a r y 25, 2008, t h e
t r i a l
c o u r t
e n t e r e d
a summary
j u d g m e n t
i n
f a v o r
o f
t h e
C o m m i s s i o n
and
a g a i n s t
C h a l k l e y ,
c o n c l u d i n g
t h a t C h a l k l e y ' s
r e q u e s t
t h a t t h e
t r i a l
c o u r t
f i n d
"as
a m a t t e r
o f ' p u b l i c p o l i c y ' " t h a t
t h e
C o u n t y
s h o u l d
be
r e s p o n s i b l e
f o r
m a i n t e n a n c e
o f
t h e
e n t i r e
s t o r m - d r a i n a g e
s y s t e m
was
a
d e c i s i o n
t h a t
" r e q u i r e s
f a c t - f i n d i n g and
an
a n a l y s i s
o f
t h e
c o s t s / b e n e f i t s
t o
t h e
p u b l i c
t h a t
i s
a p p r o p r i a t e l y
made,
u n d e r
o u r
s y s t e m ,
by
t h e
l e g i s l a t i v e
b r a n c h . "
The
t r i a l
c o u r t r e a s o n e d
t h a t
" [ a ] d o p t i n g
Ms.
C h a l k l e y ' s
a r g u m e n t
i n
t h i s
c a s e
w o u l d mean
t h a t
a
c o u r t ,
b a s e d
on
i t s own
p o l i c y
c o n s i d e r a t i o n s
o f what
i s i n t h e
b e s t
i n t e r e s t
o f
t h e
p u b l i c , w o u l d
r e q u i r e
a
l e g i s l a t i v e
e n t i t y
t o
a c q u i r e
r e s p o n s i b i l i t y and
l i a b i l i t y
f o r s t r u c t u r e s
u n d e r p r i v a t e l a n d .
I t may
w e l l be w i s e ,
e x p e d i e n t ,
and
a p p r o p r i a t e
t o
r e q u i r e
e n t i r e
s u b d i v i s i o n
d r a i n a g e
s y s t e m s
t o
be
u n d e r
t h e
c o n t r o l
o f
t h e
a p p r o v i n g
g o v e r n m e n t a l
e n t i t y ,
b u t
t h a t
i s
a
d e c i s i o n
t o
be
made
by
t h e
C o u n t y ,
n o t
t h e
j u d i c i a r y .
T h e r e f o r e ,
j u d g m e n t i s e n t e r e d
i n
f a v o r
o f [ t h e
C o m m i s s i o n ] . "
I I .
S t a n d a r d o f R e v i e w
"An
o r d e r g r a n t i n g o r d e n y i n g a summary j u d g m e n t
i s
r e v i e w e d de n o v o , a p p l y i n g
t h e same s t a n d a r d
as
t h e
t r i a l
c o u r t
a p p l i e d .
A m e r i c a n
Gen.
L i f e
&
A c c i d e n t
I n s . Co.
v. Underwood, 886
So.
2d
807,
811
( A l a .
2 0 0 4 ) .
...
Where, as h e r e ,
t h e
f a c t s o f
a
4
1070767
c a s e
a r e
e s s e n t i a l l y u n d i s p u t e d ,
t h i s
C o u r t
must
d e t e r m i n e w h e t h e r t h e t r i a l c o u r t m i s a p p l i e d
t h e l a w
t o t h e u n d i s p u t e d f a c t s , a p p l y i n g a de novo s t a n d a r d
o f r e v i e w .
C a r t e r v. C i t y o f H a l e y v i l l e , 669 So.
2d
812,
815
( A l a . 1 9 9 5 ) . "
C o n t i n e n t a l N a t ' l Indem. Co. v. F i e l d s , 926 So. 2d 1033, 1034¬
35
( A l a . 2 0 0 5 ) .
I I I .
A n a l y s i s
C h a l k l e y
c o n t e n d s
t h a t
t h e
s t o r m - d r a i n a g e
s y s t e m
was
i n s t a l l e d when t h e s u b d i v i s i o n was
b u i l t and t h a t i t s h o u l d be
v i e w e d as a s i n g l e , c o n t i n u o u s s t r u c t u r e f o r p u b l i c b e n e f i t .
She
a r g u e s
t h a t
b e c a u s e
t h e
s t o r m - d r a i n a g e
s y s t e m
i s
one
s t r u c t u r e ,
t h e
C o m m i s s i o n ,
as
a m a t t e r
o f
p u b l i c
p o l i c y ,
s h o u l d n o t be a l l o w e d t o a c c e p t
r e s p o n s i b i l i t y
f o r p a r t s
o f
t h e
s y s t e m
r a t h e r
t h a n
t h e
s y s t e m
as
a w h o l e .
C h a l k l e y
c o n t e n d s
t h a t
t h e
l a w
and
e x i s t i n g p r e c e d e n t
r e q u i r e
t h i s
r e s u l t .
S p e c i f i c a l l y ,
C h a l k l e y
f i r s t
a r g u e s
t h a t
t h e C o u n t y
i s
t h e
p r o p r i e t o r
o f a " d o m i n a n t t e n e m e n t "
i n r e l a t i o n
t o
t h e
e a s e m e n t t h a t r u n s t h r o u g h h e r p r o p e r t y and t h a t ,
t h e r e f o r e ,
t h e C o u n t y has t h e d u t y t o m a i n t a i n and t o r e p a i r t h e d r a i n a g e
s y s t e m b u i l t on t h e e a s e m e n t .
I n s u p p o r t o f t h i s p r o p o s i t i o n ,
C h a l k l e y
c i t e s M o u n t a i n
B r o o k
E s t a t e s ,
I n c . v. S o l o m o n ,
247
5
1070767
A l a .
162,
23 So. 2d 1 ( 1 9 4 5 ) , and,
s p e c i f i c a l l y ,
a p o r t i o n
o f
t h a t o p i n i o n i n w h i c h
t h e C o u r t
s t a t e d :
"The
d u t y t o m a i n t a i n and
r e p a i r ,
i f i t e x i s t s
a t
a l l , a r i s e s o u t o f p r o p r i e t o r s h i p o f t h e d o m i n a n t
e s t a t e ,
and
i t s
a p p u r t e n a n c e s ,
and
where
t h e
e a s e m e n t
e x i s t s
f o r
t h e
s o l e
b e n e f i t ,
use
and
e n j o y m e n t by t h e p r o p r i e t o r o f t h e d o m i n a n t
e s t a t e ,
t h e p r o p r i e t o r
o f s u c h e s t a t e o r d i n a r i l y
i s
l i a b l e
f o r
t h e c o s t o f m a i n t e n a n c e and
r e p a i r . "
247 A l a . a t 162,
23 So.
2d a t
4.
I n
S o l o m o n ,
M o u n t a i n
B r o o k
E s t a t e s ,
I n c .
("the
d e v e l o p e r " ) , a t one t i m e owned a l l
t h e p r o p e r t y upon w h i c h
t h e
M o u n t a i n
B r o o k E s t a t e s s u b d i v i s i o n was
b u i l t .
The
d e v e l o p e r
d i v i d e d
t h e p r o p e r t y
i n t o
l o t s
f o r t h e p u r p o s e
o f
b u i l d i n g
r e s i d e n t i a l e s t a t e s and
s e l l i n g them f o r a p r o f i t .
P u r s u a n t
t o
t h i s g o a l , t h e d e v e l o p e r b u i l t a d r a i n a g e d i t c h a c r o s s t h e
e n t i r e p r o p e r t y and r e s e r v e d an e a s e m e n t on e a c h l o t on
w h i c h
t h e d r a i n a g e
d i t c h was
l o c a t e d .
The
d e v e l o p e r t h e n
s o l d
t h e
l o t s ,
e v e n t u a l l y s e l l i n g one
t o D a v i d Solomon 13 y e a r s
a f t e r
t h e d r a i n a g e
d i t c h had b e e n
i n s t a l l e d .
When w a t e r
f r o m
t h e
d r a i n a g e
d i t c h b a c k e d
up
on S o l o m o n ' s p r o p e r t y , he
f i l e d
an
a c t i o n f o r i n j u n c t i v e r e l i e f a g a i n s t t h e d e v e l o p e r , c o n t e n d i n g
t h a t t h e d r a i n a g e d i t c h was
i n a d e q u a t e f o r d r a i n i n g t h e amount
6
1070767
o f w a t e r t h e a r e a r e c e i v e d and a s k i n g t h e t r i a l c o u r t t o o r d e r
t h e d e v e l o p e r t o r e p a i r t h e d r a i n a g e d i t c h .
T h i s
C o u r t ,
i n t h e c o u r s e
o f e x p l a i n i n g
t h e l a w o f
e a s e m e n t s ,
s t a t e d
t h e
a b o v e - q u o t e d
r u l e
c o n c e r n i n g
t h e
r e s p o n s i b i l i t y o f t h e d o m i n a n t
e s t a t e o f an e a s e m e n t .
The
C o u r t went on t o e x p l a i n ,
h o w e v e r :
" I t i s v e r y c l e a r f r o m t h e f a c t s a l l e g e d i n
t h e
b i l l
t h a t t h e e a s e m e n t and d r a i n a g e
d i t c h d i d
n o t
e x i s t
s o l e l y
f o r t h e
b e n e f i t
o f t h e
d o m i n a n t
e s t a t e s , b u t i t
was c r e a t e d and e s t a b l i s h e d as w e l l
t o
p r e s e r v e
t h e p r o p e r t y
w h i c h
t h e
c o m p l a i n a n t
p u r c h a s e d , and upon w h i c h he e r e c t e d h i s
home.
B u t
f o r
s a i d d i t c h , t h e p r o p e r t y
p u r c h a s e d and owned b y
[ S o l o m o n ] w o u l d h a v e
s u f f e r e d
t h e r a v a g e s o f t h e
d r a i n a g e s y s t e m [ f r o m h i g h e r
e l e v a t i o n
l o t s ] .
When
[ M o u n t a i n B r o o k
E s t a t e s ,
I n c . , ] s o l d and c o n v e y e d
a l l
o f
s a i d
d o m i n a n t
e s t a t e s
i n t h e s e c t o r , i t
c e a s e d
t o be
t h e
p r o p r i e t o r
o f
s a i d
d o m i n a n t
e s t a t e s ,
a n d t h e
r e s p o n s i b i l i t y o f
r e p a i r
a n d
m a i n t e n a n c e ,
i f i t e v e r
e x i s t e d ,
p a s s e d
t o t h e
g r a n t e e s o r c e a s e d t o e x i s t . "
247
A l a . a t 162, 23 So. 2d a t 4-5.
T h u s ,
Solomon
i t s e l f
e x p l a i n s
why
C h a l k l e y ' s
a r g u m e n t
t h a t t h e C o u n t y h o l d s a d o m i n a n t
e s t a t e
t h a t w o u l d make i t
r e s p o n s i b l e
f o r
m a i n t a i n i n g
and r e p a i r i n g t h e s t o r m - d r a i n a g e
s y s t e m f a i l s .
F i r s t ,
i t i s
d e b a t a b l e t h a t a " d o m i n a n t
e s t a t e "
e x i s t s i n
t h e s i t u a t i o n p r e s e n t e d h e r e .
F u r t h e r ,
t h e r e i s
no
d o u b t
t h a t
t h e e a s e m e n t
d o e s n o t e x i s t
" s o l e l y " f o r t h e
7
1070767
b e n e f i t o f t h e C o u n t y ; i t c l e a r l y b e n e f i t s C h a l k l e y
and
e v e r y
o t h e r
owner o f
a l o t i n t h e
s u b d i v i s i o n .
C o n s e q u e n t l y ,
t h e
d u t y t o m a i n t a i n
and r e p a i r t h e s t o r m - d r a i n a g e s y s t e m d o e s
n o t
f a l l upon t h e C o u n t y m e r e l y b e c a u s e t h e C o u n t y a l s o
b e n e f i t s
f r o m t h e
e a s e m e n t .
C h a l k l e y
a l s o
c o n t e n d s
t h a t
t h i s
C o u r t ' s
p r e c e d e n t
s u p p o r t s t h e
i d e a t h a t
t h e C o u n t y c a n n o t a c c e p t o n l y
i n
p a r t
a
d e d i c a t i o n
o f
p r o p e r t y
f o r
p u b l i c
use
and
t h a t ,
i f
t h e
C o u n t y a c c e p t e d p a r t o f t h e p r o p e r t y ,
i t must be
s a i d t o h a v e
c o n s t r u c t i v e l y
a c c e p t e d
t h e
r e s p o n s i b i l i t y
f o r t h e w h o l e
o f
t h e
p r o p e r t y .
1
I n so
a r g u i n g ,
C h a l k l e y m i s r e a d s o u r
c a s e s .
C h a l k l e y
i s c o r r e c t t h a t t h e a p p r o v a l
o f t h e
s u b d i v i s i o n
p l a t by
t h e C o u n t y e n g i n e e r ,
a l o n g
w i t h
t h e
n o t a t i o n
i n
t h e
p l a t s t a t i n g t h a t
" [ a ] l l e a s e m e n t s on t h i s p l a t a r e f o r p u b l i c
u t i l i t i e s ,
s a n i t a r y s e w e r s , and s t o r m d i t c h e s , and may
be u s e d
f o r s u c h p u r p o s e s
t o s e r v e p r o p e r t y
b o t h w i t h i n
and
w i t h o u t
t h e
s u b d i v i s i o n , "
c o n s t i t u t e d
a
d e d i c a t i o n
o f
p r o p e r t y
f o r
p u b l i c u s e .
See,
e.g.,
M o n t a b a n o v.
C i t y o f M o u n t a i n B r o o k ,
653
So.
2d 947,
949
( A l a . 1995)
( n o t i n g t h a t
" [ t ] h e
r e c o r d i n g
1 C h a l k l e y d o e s n o t c o n t e n d t h a t t h e C o u n t y n e e d n o t
a c c e p t
t h e
d e d i c a t i o n
o f
t h e e a s e m e n t i n q u e s t i o n
i n o r d e r
t o h a v e
r e s p o n s i b i l i t y
f o r i t s m a i n t e n a n c e .
8
1070767
o f a p l a t o r map
... c o n s t i t u t e s a v a l i d d e d i c a t i o n
t o t h e
p u b l i c o f a l l p u b l i c p l a c e s d e s i g n a t e d
i n t h e p l a t o r map.").
"A ' d e d i c a t i o n ' i s a d o n a t i o n o r a p p r o p r i a t i o n o f p r o p e r t y t o
t h e p u b l i c u s e by t h e owner."
C i t y o f F a i r f i e l d v. J e m i s o n ,
283 A l a . 462, 464, 218 So. 2d 2 7 3 , 275
( 1 9 6 9 ) .
I t
a l s o i s t r u e t h a t a g r a n t o r i s l i m i t e d i n t h e t y p e s o f
r e s t r i c t i o n s
t h a t c a n be p l a c e d
on a d e d i c a t i o n o f
p r o p e r t y
f o r
p u b l i c u s e .
"'An owner may
g r a n t w h a t e v e r
e s t a t e
he s e e s
f i t , and may annex c o n d i t i o n s
and
l i m i t a t i o n s t o h i s g r a n t a t h i s p l e a s u r e ,
p r o v i d e d
t h a t
s u c h
l i m i t a t i o n s
and
c o n d i t i o n s
a r e n o t i n c o n s i s t e n t
w i t h
t h e
d e d i c a t i o n
and
w i l l
n o t
d e f e a t
t h e
o p e r a t i o n
o f t h e g r a n t .
A
c o n d i t i o n
o r
l i m i t a t i o n
w h i c h
w o u l d
r e n d e r
t h e
d e d i c a t i o n
i n e f f e c t u a l c a n n o t be a n n e x e d ;
t h u s
a man
c a n n o t
r e s e r v e
p o s s e s s i o n
t o
h i m s e l f , n o r r e s e r v e a r i g h t t o do
a n y t h i n g
i n t h e way w h i c h w i l l d e s t r o y
i t s c h a r a c t e r
as a p u b l i c way.'"
G r e i l v . S t o l l e n w e r c k ,
201 A l a .
303, 30
6, 78 So. 7
9, 82 (1918
)
( q u o t i n g 1 E l l i o t t , Roads and S t r e e t s § 1 6 3 ) .
The a c c e p t a n c e o f t h e d e d i c a t i o n i s e q u a l l y as i m p o r t a n t
as
t h e
d e d i c a t i o n ,
h o w e v e r .
"'"The
a c c e p t a n c e
o f
a
d e d i c a t i o n , o r what may be more a c c u r a t e l y
c a l l e d an o f f e r o f
d e d i c a t i o n , has many o f t h e i n c i d e n t s o f t h e a c c e p t a n c e o f a
9
1070767
c o n t r a c t
and o f a d e e d , and i s what makes t h e
d e d i c a t i o n
c o m p l e t e . " ' "
V e s t a v i a
H i l l s Bd. o f E d u c . v . U t z , 530 So. 2d
1378,
1383
( A l a . 1988)
( q u o t i n g
t h e
t r i a l
c o u r t ' s
o r d e r ,
q u o t i n g
i n t u r n
23 Am.
J u r . 2d D e d i c a t i o n
§§ 41
( 1 9 8 3 ) ) .
S i m i l a r t o a c o n t r a c t , " ' t h e l a n g u a g e s e t f o r t h i n t h e d e e d
[ o r p l a t ] i s c o n s i d e r e d
m e r e l y an o f f e r o f d e d i c a t i o n b y t h e
g r a n t o r s
u n t i l s u c h t i m e as t h e d e d i c a t i o n h a s b e e n
a c c e p t e d
by t h e g r a n t e e . ' "
I d .
I n I v e y v . C i t y o f B i r m i n g h a m , 190 A l a . 196, 204, 67 So.
506,
509
( 1 9 1 4 ) ,
t h i s
C o u r t
c o n s i d e r e d
t h e i s s u e
o f t h e
p u b l i c ' s
r e s p o n s i b i l i t y
f o r t h e m a i n t e n a n c e o f a
d e d i c a t e d
s t r e e t .
2
The C o u r t i n t h a t c a s e
h e l d :
2 The
l a n d
i n q u e s t i o n
i n I v e y
was
t h e
s u b j e c t
o f a
d e d i c a t i o n t h a t o c c u r r e d by means o f t h e p u b l i c r e c o r d i n g o f
a p l a t b e f o r e t h e a n n e x a t i o n o f t h e p r o p e r t y
i n t o t h e C i t y o f
B i r m i n g h a m .
A l t h o u g h n o t c i t e d i n t h e o p i n i o n , t h e s t a t u t e
a p p l i c a b l e t o s u c h d e d i c a t i o n r e a d as f o l l o w s :
"The
a c k n o w l e d g m e n t and r e c o r d i n g o f s u c h p l o t
s h a l l
be h e l d i n l a w and e q u i t y t o be a c o n v e y a n c e , i n
f e e
s i m p l e , o f s u c h p o r t i o n o f t h e p r e m i s e s p l o t t e d as
one
m a r k e d
o r n o t e d
on
s u c h
p l o t
as d o n a t e d o r
g r a n t e d t o t h e p u b l i c , and t h e p r e m i s e s i n t e n d e d f o r
any
s t r e e t , a l l e y w a y , common o r o t h e r p u b l i c u s e , as
shown i n s a i d p l o t
s h a l l be h e l d i n t h a t
t r u s t f o r
t h e u s e s and p u r p o s e s i n t e n d e d o r s e t f o r t h i n s a i d
p l o t . "
A c t No. 52, § 3, p. 93, A l a .
A c t s
1 8 8 6 - 8 7 .
10
1070767
"The
owner o f t h e p r o p e r t y
t h r o u g h w h i c h t h i s
s t r e e t
was
o r i g i n a l l y
l a i d
o f f
c o u l d
n o t
i m p o s e
h i s
d e d i c a t i o n o f t h e s t r e e t upon t h e p u b l i c by
p l a t t i n g
t h e
t e r r i t o r y and
d i s p o s i n g o f l o t s a c c o r d i n g
t o
t h e
p l a t .
He
t h e r e b y made i t a way,
i r r e v o c a b l e as
t o
p u r c h a s e r s ; b u t
t o d e v o l v e upon t h e p u b l i c t h e
d u t y
o f m a i n t a i n i n g
t h e way
as a p u b l i c r o a d o r s t r e e t i t
was
n e c e s s a r y t h a t t h e r e
s h o u l d
be
an a c c e p t a n c e
by
t h e p u b l i c o f t h e
d e d i c a t i o n . "
( E m p h a s i s added.)
The
p r i n c i p l e r e c o g n i z e d
i n I v e y , w h i c h
has
b e e n
r e c o g n i z e d
r e p e a t e d l y
i n
o t h e r
j u r i s d i c t i o n s ,
i s
t h a t
b e c a u s e a c c e p t a n c e o f a d e d i c a t i o n c o n s t i t u t e s t h e
a s s u m p t i o n
o f
r e s p o n s i b i l i t y
f o r
t h e
p r o p e r t y
i n
q u e s t i o n ,
a
g r a n t o r
c a n n o t a u t o m a t i c a l l y i m p o s e s u c h r e s p o n s i b i l i t y on t h e
p u b l i c
t h r o u g h
h i s
o r
h e r
d e d i c a t i o n
o f
t h e
p r o p e r t y .
See,
e.g.,
Brown v.
M o o r e ,
255
Va.
523,
52 9-30 , 500
S.E.
2d
797,
800
(1998)
( e x p l a i n i n g t h a t
" [ b ] e c a u s e
a d e d i c a t i o n
i m p o s e s
t h e
b u r d e n
o f
m a i n t e n a n c e
and
p o t e n t i a l
t o r t
l i a b i l i t y
on
t h e
p u b l i c ,
a
d e d i c a t i o n
i s
n o t
c o m p l e t e d
u n t i l
t h e
p u b l i c
o r
c o m p e t e n t p u b l i c a u t h o r i t y m a n i f e s t s
an
i n t e n t t o a c c e p t
t h e
o f f e r " ) .
C i t i n g
I v e y ,
t h i s C o u r t s t a t e d
i n Tuxedo Homes, I n c .
v.
G r e e n , 258
A l a . 494,
497,
499
63
So.
2d
812,
814,
( 1 9 5 3 ) :
" I t i s t h o r o u g h l y
w e l l s e t t l e d i n t h i s S t a t e
and
e l s e w h e r e
t h a t
an owner
o f
l a n d
c a n n o t i m p o s e
h i s
d e d i c a t i o n
o f
a s t r e e t upon t h e
p u b l i c by
p l a t t i n g
t h e
t r a c t
and
d i s p o s i n g
o f
l o t s
a c c o r d i n g
t o
t h e
11
1070767
p l a t ;
and
t h a t
i n o r d e r t o h a v e a d e d i c a t i o n
t h e r e
must
be
an
a c c e p t a n c e
o f
i t by
t h e
c i t y
i f t h e
p r o p e r t y
i s l o c a t e d
i n a
c i t y .
I v e y v.
C i t y
o f
B i r m i n g h a m , 190 A l a . 196,
67 So.
506."
I n a c a s e i n v o l v i n g l a n d l o c a t e d i n B a l d w i n C o u n t y , t h e C o u r t
i n B a l d w i n C o u n t y C o m m i s s i o n v. J o n e s , 344
So. 2d 1200,
1204
( A l a .
1 9 7 7 ) ,
c i t i n g
Tuxedo Homes, s t a t e d
t h a t
a p p r o v a l o f a
r e c o r d e d s u b d i v i s i o n p l a t "does n o t amount t o an a c c e p t a n c e o f
t h e r o a d s as p u b l i c r o a d s . "
I n
B l a i r
v.
F u l l m e r , 583
So.
2d
1307,
1310
n.2
( A l a .
1 9 9 1 ) ,
t h i s C o u r t
s t a t e d :
"The
mere
f a c t o f d e d i c a t i o n
d o e s n o t
n e c e s s a r i l y
i m p o s e upon t h e c o u n t y a d u t y t o m a i n t a i n t h e r o a d .
C f . L y b r a n d v. Town o f P e l l C i t y , 2
60 A l a . 534,
538,
71
So.
2d
7
97 , 801
(1
9 5 4 ) ,
i n w h i c h
i t was
n o t e d
t h a t
a d e d i c a t i o n
o f a s t r e e t i n a
c i t y
'does
n o t
i m p o s e any d u t y upon t h e c i t y
u n t i l i t has
a c c e p t e d
t h e
d e d i c a t i o n . ' "
R e l y i n g on b o t h I v e y and Tuxedo Homes, t h e B l a i r
C o u r t
n o t e d
t h a t
i n t h e
f o r m e r
" t h e owner, by
p l a t t i n g
t h e
s t r e e t
and
r e c o r d i n g t h e p l a t ,
' t h e r e b y made i t a way,
i r r e v o c a b l e as t o
p u r c h a s e r s ;
b u t
t o
d e v o l v e
upon
t h e
p u b l i c
t h e
d u t y
o f
m a i n t a i n i n g
t h e
way
as
a
p u b l i c
r o a d
o r
s t r e e t
i t
was
n e c e s s a r y t h a t t h e r e s h o u l d be an a c c e p t a n c e by t h e p u b l i c o f
t h e
d e d i c a t i o n . '
[ I v e y , ] 190
A l a . a t 204,
67
So.
a t
509."
B l a i r ,
583 So. 2d a t 1311
( n o t i n g t h a t p r i n c i p l e e s t a b l i s h e d
12
1070767
i n
I v e y c a n t h u s be
t r a c e d t h r o u g h Tuxedo Homes and
C o t t a g e
H i l l
L a n d
C o r p .
v.
C i t y
o f M o b i l e ,
443
So.
2d
1201
( A l a .
1 9 8 3 ) , t o CRW,
I n c . v. T w i n L a k e s P r o p e r t y Owners A s s o c i a t i o n ,
I n c . ,
521 So. 2d 939
( A l a . 1 9 8 8 ) ) .
The
B l a i r C o u r t
c o n c l u d e d
i t s
a n a l y s i s as
f o l l o w s :
" W h a t e v e r t h e e f f e c t o f C o t t a g e
H i l l and CRW
on
t h e o t h e r c a s e s and t h e s t a t u t e s on p o i n t , t h o s e
two
c a s e s c l e a r l y do n o t d e p r i v e a p u r c h a s e r o f a l o t i n
a s u b d i v i s i o n o f t h e r i g h t t o t h e r o a d s shown i n t h e
s u b d i v i s i o n
p l a t .
I t i s c e r t a i n l y t h e c a s e
t h a t
a
c i t y
o r
c o u n t y
must
a c c e p t
s u c h
a
d e d i c a t i o n
( p e r h a p s by t h e g e n e r a l p u b l i c ' s u s e
o f t h e
r o a d s )
b e f o r e t h e r e a r i s e s a d u t y on t h e g o v e r n i n g b o d y t o
m a i n t a i n
t h e
r o a d s ,
and
i t may
be
t h a t
t h o s e
two
c a s e s r e q u i r e an a c c e p t a n c e by a p u b l i c b o d y b e f o r e
t h e g e n e r a l p u b l i c c a n be g i v e n t h e r i g h t t o u s e
t h e
r o a d s . "
3
3 I n
H a r p e r v. C o a t s , 98 8 So. 2d 501, 508
( A l a . 2 0 0 8 ) ,
t h i s
C o u r t
c o n s i d e r e d
a
d i s p u t e b e t w e e n
i n d i v i d u a l s ,
who
were
a d j a c e n t l a n d o w n e r s ;
H a r p e r d i d n o t i n v o l v e t h e o b l i g a t i o n o f
e i t h e r
a
m u n i c i p a l
c o r p o r a t i o n
o r
a
c o u n t y
t o
t a k e
r e s p o n s i b i l i t y
f o r
t h e
m a i n t e n a n c e
o f
d e d i c a t e d
p r o p e r t y
w i t h o u t
f i r s t h a v i n g a c c e p t e d t h e d e d i c a t i o n .
I t was
i n t h i s
c o n t e x t
t h a t
t h e
H a r p e r
C o u r t
h e l d
t h a t
" [ r ] o a d s
i n
a
s u b d i v i s i o n
l o c a t e d
o u t s i d e
t h e
c i t y
l i m i t s
o r
p o l i c e
j u r i s d i c t i o n
o f a m u n i c i p a l i t y
a r e deemed d e d i c a t e d t o
t h e
p u b l i c
by
way
o f
p r o p e r
r e c o r d a t i o n
o f
a
p l a t ,
w i t h
no
r e q u i r e m e n t o f a c c e p t a n c e by any c o u n t y g o v e r n i n g
a u t h o r i t y . "
H a r p e r
d i d n o t d i s c u s s o r p u r p o r t t o o v e r r u l e Tuxedo Homes.
I n Tuxedo Homes, t h e C o u r t c o n c l u d e d t h a t " t h e mere a p p r o v a l
o f
t h e p l a t o r map"
by a c i t y e n g i n e e r " i s n o t an
a c c e p t a n c e
o f t h e p r o f f e r e d d e d i c a t i o n and i m p o s e s no b u r d e n on t h e
c i t y "
b e c a u s e s u c h a p p r o v a l "does n o t i n v o k e a d i s c r e t i o n a r y a c t o f
t h e c i t y c o m m i s s i o n . "
258 A l a . a t 499, 63 So. 2d a t 816.
The
p r i n c i p l e u n d e r l y i n g t h e h o l d i n g i n Tuxedo Homes was
t h a t t h e
m i n i s t e r i a l f u n c t i o n o f a c i t y o r c o u n t y e n g i n e e r i n a p p r o v i n g
13
1070767
583
So.
2d
a t 1311
( e m p h a s i s a d d e d ) .
I n t h i s c a s e , t h e d e v e l o p e r o f t h e
s u b d i v i s i o n
d e d i c a t e d
a l l t h e e a s e m e n t s on t h e s u b d i v i s i o n p r o p e r t y
-- i n c l u d i n g t h e
e a s e m e n t s f o r t h e s t o r m - d r a i n a g e s y s t e m -- f o r p u b l i c u s e .
As
C h a l k l e y c o n c e d e s , t h e C o m m i s s i o n a c c e p t e d o n l y t h o s e p a r t s
o f
t h e
s t o r m - d r a i n a g e
s y s t e m
t h a t
e x i s t e d
w i t h i n
t h e
s t r e e t
r i g h t s - o f - w a y .
4
C h a l k l e y
c i t e s G r e i l f o r t h e p r o p o s i t i o n
t h a t
t h e
C o u n t y
c o u l d
n o t
a c c e p t
o n l y
p a r t
o f
t h e
d e d i c a t i o n .
G r e i l
s t a t e s , i n p e r t i n e n t
p a r t :
" ' [ T ] h e d e d i c a t i o n must, as t h e
l a w
p h r a s e
r u n s ,
be
a c c e p t e d
secundum
formam
d o n i
[ a c c o r d i n g
t o
t h e
f o r m
o f
t h e
g i f t
o r
g r a n t ] .
I t i s s t a t e d
i n g e n e r a l
t e r m s
i n
some
o f
t h e
c a s e s
t h a t
t h e r e
may
be
a
p a r t i a l a c c e p t a n c e , b u t i t seems t o us
t h a t
t h i s
d o c t r i n e
must
be
t a k e n
w i t h
some
q u a l i f i c a t i o n .
I f t h e d o n o r s h o u l d
c o n s e n t
t h a t
t h e
p u b l i c
m i g h t
a c c e p t
p a r t
and
r e j e c t
p a r t ,
t h e n ,
d o u b t l e s s ,
t h e
a c c e p t a n c e ,
i f f o r
t h e
p u b l i c
g e n e r a l l y ,
w o u l d be
v a l i d ; b u t
i f he
s h o u l d
i n s i s t
on
a
f u l l
a c c e p t a n c e ,
we
t h i n k
t h a t
on
a
p l a t c a n n o t
" b i n d
t h e
c i t y
[ o r
c o u n t y ]
t o
m a i n t a i n
s u c h
s t r e e t s "
o r
o t h e r
p o r t i o n s
o f
t h e
p l a t
d e d i c a t e d
t o
t h e
p u b l i c .
258
A l a . a t 498,
63
So.
2d
a t
814.
4 C h a l k l e y d o e s n o t a r g u e t h a t t h e C o m m i s s i o n a c c e p t e d
t h e
e n t i r e
s t o r m - d r a i n a g e s y s t e m by
way
o f
a p u b l i c u s e
o f
t h a t
s y s t e m
f o r
a
c e r t a i n
p e r i o d
o r
by
o t h e r
a c t
by
w h i c h
a c c e p t a n c e m i g h t be deemed t o h a v e o c c u r r e d
i m p l i c i t l y o r
by
e s t o p p e l .
14
1070767
p r i n c i p l e
he
w o u l d
be
s u s t a i n e d
by
t h e
c o u r t s s i n c e t o h o l d o t h e r w i s e w o u l d be i n
e f f e c t
t o
c o m p e l
h i m
t o
p a r t
w i t h
h i s
p r o p e r t y
on
t e r m s
d i f f e r e n t
f r o m
t h o s e
p r e s c r i b e d i n h i s g r a n t . ' "
201 A l a . a t 306, 78 So. a t 82
( q u o t i n g 1 E l l i o t t , Roads and
S t r e e t s § 1 6 3 ) .
The
a b o v e - q u o t e d
p a s s a g e
f r o m
G r e i l
does
n o t
h e l p
C h a l k l e y ,
h o w e v e r ,
b e c a u s e
t h e r e
i s no
r e s t r i c t i o n
i n t h e
d e v e l o p e r ' s
d e d i c a t i o n
t h a t
t h e C o u n t y
h a d
t o
a c c e p t
t h e
e n t i r e
d e d i c a t i o n i n o r d e r
t o t a k e
c o n t r o l o f t h e
p r o p e r t y .
I n d e e d , on t h e f a c t s b e f o r e u s , t h e g r a n t o r d i d n o t o b j e c t t o
t h e
C o u n t y ' s
p a r t i a l
a c c e p t a n c e o f t h e d e d i c a t e d
p r o p e r t y .
Thus,
G r e i l does n o t i n d i c a t e t h a t t h e C o u n t y was p r o h i b i t e d
f r o m a c c e p t i n g t h e d e d i c a t i o n i n t h e manner i t c h o s e .
I n
f a c t , t h e l a w on t h e s u b j e c t g e n e r a l l y i s t h a t " [ a ] n
o f f e r o f d e d i c a t i o n n e e d n o t be a c c e p t e d
i n i t s e n t i r e t y ; t h e
p r o p e r t y
o f f e r e d f o r d e d i c a t i o n may
be a c c e p t e d
i n p a r t
and
t h e
r e m a i n d e r
r e j e c t e d . "
23 Am.
J u r . 2d
D e d i c a t i o n
§
43
(2002)
( f o o t n o t e s o m i t t e d ) .
T h i s i s so b e c a u s e " [ t ] h e p u b l i c
i s n o t c o m p e l l e d t o assume t h e b u r d e n s i m p o s e d by
a c c e p t i n g
e v e r y
p a r t
o f t h e o f f e r e d d e d i c a t i o n . "
I d .
S e v e r a l
o t h e r
j u r i s d i c t i o n s a g r e e w i t h
t h i s c o n c l u s i o n .
See, e.g.,
C o r b i n
15
1070767
v. C h e r o k e e R e a l t y Co., 229 S.C. 16, 25, 91 S.E. 2d 542, 546
(1956) ("[The C i t y o f F l o r e n c e ] was n o t r e q u i r e d t o a c c e p t t h e
o f f e r o f d e d i c a t i o n i n i t s e n t i r e t y . Any s t r e e t shown on s a i d
p l a t
c o u l d be a c c e p t e d i n p a r t and t h e r e m a i n d e r
r e j e c t e d .
The
p u b l i c
c o u l d
n o t be
c o m p e l l e d
t o assume t h e b u r d e n s
i m p o s e d b y a c c e p t i n g
e v e r y p a r t o f t h e o f f e r e d
d e d i c a t i o n . "
( c i t a t i o n s o m i t t e d ) ) ; Home R e a l E s t a t e L o a n & I n s . Co. v . Town
o f C a r o l i n a B e a c h , 216 N.C. 778, 788, 7 S.E. 2d 13, 20 (1940)
( e x p l a i n i n g
t h a t
" t h e b o a r d o f a l d e r m e n ,
a c t i n g
u n d e r t h e
c h a r t e r and p e r t i n e n t l a w s , h a s t h e d i s c r e t i o n a r y power as t o
t h e e x t e n t t o w h i c h t h e s t r e e t as d e d i c a t e d t o p u b l i c u s e w i l l
be
a c c e p t e d , and may t h e r e b y
l i m i t t h e r e s p o n s i b i l i t y o f
t h e
town f o r m a i n t e n a n c e " ) ; and Moore v. C i t y o f C h i c a g o , 261
I l l .
56,
59, 103 N.E. 583, 584 (1913) ("The l a w i s w e l l
s e t t l e d
t h a t , when a p e r s o n p l a t s p r o p e r t y
i n t o a s u b d i v i s i o n and maps
o u t
s t r e e t s t h e r e o n , t h e a u t h o r i t i e s may a c c e p t them i n w h o l e
o r i n p a r t .
The p u b l i c i s
n o t c o m p e l l e d t o assume t h e b u r d e n s
i m p o s e d by a c c e p t i n g
e v e r y p a r t o f an o f f e r e d d e d i c a t i o n .
An
a c c e p t a n c e o f a p a r t i s
n o t an a c c e p t a n c e o f t h e w h o l e
" ) .
C h a l k l e y
c o u n t e r s t h a t
" p u b l i c p o l i c y " and common
s e n s e
r e q u i r e t h e C o u n t y assume r e s p o n s i b i l i t y f o r
t h e w h o l e s t o r m -
16
1070767
d r a i n a g e
s y s t e m
b e c a u s e
t h a t
i s t h e
o n l y
way
i t c a n
e f f e c t i v e l y manage a n d o p e r a t e t h e s y s t e m .
The e n t i r e s y s t e m
i s
n e c e s s a r y f o r t h e s t o r m
d r a i n a g e t o o p e r a t e
p r o p e r l y ,
C h a l k l e y
a r g u e s , so t h e C o u n t y c a n n o t p i c k a n d c h o o s e
w h i c h
p a r t s
o f t h e s y s t e m
t o a c c e p t .
C h a l k l e y
c o n t e n d s
t h a t
B e a c h c r o f t
P r o p e r t i e s , L L P v . C i t y o f A l a b a s t e r , 949 So. 2d
899
( A l a . 2 0 0 6 ) ,
c o n f i r m s
t h a t
p u b l i c p o l i c y r e q u i r e s
t h i s
r e s u l t .
B e a c h c r o f t
c o n c e r n e d a d i s p u t e b e t w e e n t h e owners o f
two
c o n t i g u o u s
p l a t t e d
s u b d i v i s i o n s i n t h e C i t y o f
A l a b a s t e r .
B e a c h c r o f t
P r o p e r t i e s , L L P ( " B e a c h c r o f t " ) ,
owned t h e F o r e s t
H i g h l a n d s
s u b d i v i s i o n , a n d BW & MMC, LLC ("BW"), owned t h e
L a k e F o r e s t s u b d i v i s i o n . A s e w e r s y s t e m was i n s t a l l e d i n L a k e
F o r e s t i n
a c c o r d a n c e w i t h t h e
p r e l i m i n a r y p l a t a p p r o v e d b y
t h e
C i t y o f A l a b a s t e r ' s
p l a n n i n g a n d z o n i n g b o a r d ("the b o a r d " ) .
The s e w e r s y s t e m i n c l u d e d a s e w e r l i n e c a p a b l e o f s e r v i n g b o t h
L a k e F o r e s t a n d F o r e s t
H i g h l a n d s .
When B e a c h c r o f t
p r e s e n t e d
i t s
p r e l i m i n a r y
p l a t f o r F o r e s t
H i g h l a n d s t o t h e b o a r d , i t
r e q u e s t e d
p e r m i s s i o n t o c o n n e c t s e w e r l i n e s i n
i t s s u b d i v i s i o n
t o
t h e s e w e r
l i n e
t h a t
was
p a r t
o f t h e
s e w e r - s y s t e m
i n s t a l l a t i o n i n L a k e F o r e s t .
BW i n f o r m e d B e a c h c r o f t a n d
t h e
17
1070767
b o a r d t h a t i t w o u l d n o t a l l o w F o r e s t H i g h l a n d s t o c o n n e c t t o
t h e
L a k e F o r e s t sewer s y s t e m , and t h e b o a r d s t a t e d t h a t i t d i d
n o t b e l i e v e
i t h a d t h e
a u t h o r i t y
t o f o r c e BW
t o l e t F o r e s t
H i g h l a n d s
c o n n e c t
t o L a k e
F o r e s t ' s
s e w e r
s y s t e m .
When
BW
p r e s e n t e d
i t s f i n a l
p l a t
t o
t h e
b o a r d ,
i t d e d i c a t e d t h e
s t r e e t s o f t h e s u b d i v i s i o n t o t h e p u b l i c , b u t i t p u r p o r t e d t o
s p e c i f i c a l l y exempt f r o m p u b l i c
d e d i c a t i o n t h e sewer
s y s t e m
r u n n i n g u n d e r n e a t h t h o s e
s t r e e t s .
B e a c h c r o f t
f i l e d
a c o m p l a i n t a g a i n s t
BW
and
A l a b a s t e r
s e e k i n g a j u d g m e n t d e c l a r i n g t h a t t h e s t r e e t s o f L a k e
F o r e s t
and
t h e
sewer
s y s t e m
t h a t
r a n
u n d e r n e a t h
them
h a d
b e e n
d e d i c a t e d
t o t h e p u b l i c ,
and,
t h e r e f o r e ,
t h a t BW
c o u l d
n o t
p r e v e n t F o r e s t H i g h l a n d s f r o m c o n n e c t i n g t h e sewer
l i n e s i n t o
t h e
sewer s y s t e m .
I t a l s o s o u g h t an o r d e r e n j o i n i n g BW
f r o m
p r e v e n t i n g
B e a c h c r o f t f r o m
c o n n e c t i n g t h e
sewer
l i n e s
i n
F o r e s t H i g h l a n d s t o t h e sewer s y s t e m .
S u b s e q u e n t l y , t h e b o a r d
a c c e p t e d t h e
f i n a l
p l a t
f o r L a k e
F o r e s t and t h e
p r e l i m i n a r y
p l a t f o r F o r e s t H i g h l a n d s s u b j e c t t o t h e
j u d i c i a l
r e s o l u t i o n
o f t h e i s s u e o f c o n t r o l o f t h e sewer s y s t e m .
The
t r i a l
c o u r t
e n t e r e d
a summary j u d g m e n t
i n f a v o r
o f
BW
and
A l a b a s t e r ,
c o n c l u d i n g
t h a t
BW
" ' l a w f u l l y
w i t h h e l d
f r o m
d e d i c a t i n g
t h e
18
1070767
s a n i t a r y
s e w e r ' "
and
t h a t
" A l a b a s t e r
p r o p e r l y
a p p r o v e d
a
r e s e r v a t i o n t o a l l o w [BW's] w i t h h o l d i n g f r o m p u b l i c
d e d i c a t i o n
a p o r t i o n o f t h e
s u b d i v i s i o n . . . . "
B e a c h c r o f t
P r o p s . , LLP
v.
C i t y o f A l a b a s t e r ,
901
So.
2d
703,
706
( A l a . 2004)
( e m p h a s i s
o m i t t e d ) .
I n
t h e
i n i t i a l
a p p e a l ,
t h i s
C o u r t
c o n c l u d e d
t h a t
t h e
t r i a l
c o u r t ,
i n
f i n d i n g
t h a t
A l a b a s t e r
had
a p p r o v e d
t h e
r e s e r v a t i o n
o f
t h e
s e w e r s y s t e m by
BW,
had
f a i l e d
t o
s e t t l e
t h e d i s p o s i t i v e i s s u e o f " w h e t h e r a r e a l - e s t a t e d e v e l o p e r ,
i n
p l a t t i n g
a s u b d i v i s i o n f o r a p p r o v a l
by
a m u n i c i p a l
p l a n n i n g
b o a r d , may
i m p o s e on
t h e m u n i c i p a l i t y an e x p r e s s
r e s e r v a t i o n
p r o h i b i t i n g
t h e m u n i c i p a l i t y f r o m a s s e r t i n g c o n t r o l o v e r
t h e
s e w e r
l i n e s b e n e a t h t h e
p l a t t e d s t r e e t s o r f r o m e f f e c t i n g a
s a n i t a r y - s e w e r
c o n n e c t i o n b e t w e e n two a d j o i n i n g s u b d i v i s i o n s . "
901
So.
2d
a t 7 0 9 - 1 0 .
A c c o r d i n g l y ,
we
remanded t h e
c a s e
t o
t h e
t r i a l
c o u r t
f o r r e s o l u t i o n o f t h a t i s s u e .
On remand,
t h e
t r i a l
c o u r t
a g a i n
e n t e r e d
a summary j u d g m e n t i n f a v o r
o f
BW
and
A l a b a s t e r .
I n
t h e
s e c o n d
a p p e a l ,
A l a b a s t e r
f i l e d
a b r i e f
a g r e e i n g
w i t h
B e a c h c r o f t
t h a t
t h e
s e w e r s y s t e m ,
l i k e
t h e
s t r e e t s
o f
L a k e F o r e s t ,
i s p u b l i c p r o p e r t y b e c a u s e i t i s c o n n e c t e d t o
t h e
19
1070767
c i t y s e w e r s y s t e m .
See B e a c h c r o f t
P r o p s . , L L C , 949 So. 2d
a t
902
( " B e a c h c r o f t
I I " ) .
I t a l s o
a g r e e d
w i t h
B e a c h c r o f t ' s
c o n t e n t i o n t h a t " ' [ a ] d e v e l o p e r
... c a n n o t ... d e t e r m i n e what
members o f t h e
p u b l i c s h a l l h a v e a c c e s s t o p u b l i c i m p r o v e m e n t s
t o t h e e x c l u s i o n o f a m u n i c i p a l i t y . ' "
949 So. 2d a t 901-02.
BW, on t h e o t h e r h a n d , c o n t e n d e d t h a t i t owned t h e s e w e r
l i n e s
and
t h e pump
s t a t i o n
a c c o m p a n y i n g them a n d w o u l d own them
u n t i l i t
c h o s e t o d e e d them t o A l a b a s t e r .
T h i s
C o u r t
r e v e r s e d
t h e j u d g m e n t o f t h e t r i a l
c o u r t ,
n o t i n g
t h a t
" i t i s u n d i s p u t e d
t h a t t h e sewage f r o m L a k e
F o r e s t
f l o w s t o f a c i l i t i e s owned a n d o p e r a t e d b y t h e C i t y ,
and
i t i s
u n c o n t r o v e r t e d
t h a t BW does n o t p u r p o r t t o
own
o r t r e a t t h e sewage d i s c h a r g e d by L a k e
F o r e s t .
I n
o t h e r w o r d s , when t h e L a k e
F o r e s t
s e w e r
s y s t e m
was
c o n n e c t e d
t o t h e
C i t y ' s
s y s t e m ,
t h e
C i t y
a c q u i r e d t h e e f f l u e n t , a n d t h e c o n c o m i t a n t d u t y t o
d i s p o s e
p r o p e r l y o f t h e sewage
f l o w i n g
f r o m
L a k e
F o r e s t t o o t h e r p o i n t s w i t h i n t h e C i t y ' s s y s t e m .
" I t must b e , t h e r e f o r e ,
t h a t t h e p i p e s
u n d e r
L a k e
F o r e s t a n d t h e pump
s t a t i o n on l o t
599 h a v e
become an i n t e g r a l
p a r t o f t h e p u b l i c s e w e r
s y s t e m
w i t h t h e r i g h t o f c o n t r o l c o n s e q u e n t l y
v e s t e d i n t h e
C i t y .
Were i t o t h e r w i s e ,
t h e d e v e l o p e r
o f one
s u b d i v i s i o n
c o u l d
h o l d a n o t h e r d e v e l o p m e n t
h o s t a g e
on a whim, t h e r e b y
i m p r o p e r l y
i n t e r f e r i n g
w i t h t h e
o r d e r l y d e v e l o p m e n t o f a m u n i c i p a l i t y . "
949 So. 2d a t 905-06
( f o o t n o t e a n d e m p h a s i s
o m i t t e d ) .
20
1070767
C h a l k l e y
c o n t e n d s
t h a t
B e a c h c r o f t
I I s t a n d s
f o r t h e
p r o p o s i t i o n
t h a t
i f t h e sewer
s y s t e m o f a
s u b d i v i s i o n i s
c o n n e c t e d t o t h e p u b l i c s e w e r s y s t e m , t h e n t h e d e v e l o p e r h a s
no
r i g h t t o r e s e r v e a p o r t i o n o f t h e s e w e r s y s t e m .
A c c o r d i n g
t o
C h a l k l e y ,
" [ a ] l l o f t h e s y s t e m must be d e d i c a t e d
t o t h e
g o v e r n m e n t e n t i t y so t h a t t h e g o v e r n m e n t e n t i t y c a n p r o p e r l y
manage and c o n t r o l t h e s y s t e m . "
C h a l k l e y ' s
b r i e f ,
p. 2 1 .
C h a l k l e y
t h e n
i n s i s t s
t h a t t h e c o n v e r s e must a l s o be
t r u e ,
i . e . ,
" t h a t t h e g o v e r n m e n t e n t i t y c a n n o t p i c k and c h o o s e w h i c h
p o r t i o n s o f t h e s y s t e m t o a c c e p t ,
when a l l o f t h e s y s t e m i s
a b s o l u t e l y n e c e s s a r y f o r i t s p r o p e r o p e r a t i o n . "
I d .
T h i s a r g u m e n t
f a i l s t o r e c o g n i z e t h e d i s t i n c t i o n b e t w e e n
d e d i c a t i o n and a c c e p t a n c e .
B e a c h c r o f t
I I s i m p l y
r e i n f o r c e s
t h e r u l e t h a t " [ a ] c o n d i t i o n o r l i m i t a t i o n w h i c h w o u l d r e n d e r
t h e
d e d i c a t i o n
i n e f f e c t u a l c a n n o t be a n n e x e d ....
N o r c a n
t h e r e be a v a l i d
d e d i c a t i o n
t o a p a r t
o n l y o f t h e p u b l i c ,
s i n c e t h i s w o u l d be r e p u g n a n t t o t h e p u r p o s e o f t h e d e d i c a t i o n
G r e i l ,
201 A l a . a t 306, 78 So. a t 82
( q u o t i n g
1
E l l i o t t , Roads & S t r e e t s § 1 6 3 ) . I n o t h e r w o r d s , t h e s y s t e m
i n
q u e s t i o n
c o u l d
n o t be
p a r t l y
d e d i c a t e d
t o t h e
p u b l i c
21
1070767
b e c a u s e o t h e r w i s e t h e p u b l i c s y s t e m i s a t t h e whim o f
p r i v a t e
c o n t r o l .
W h e t h e r
t h e
p u b l i c
must
a c c e p t
t h e
e n t i r e t y
o f
a
d e d i c a t i o n
o f
p r o p e r t y
t o
p u b l i c
u s e
i s
a n o t h e r
m a t t e r .
C h a l k l e y i s e s s e n t i a l l y a r g u i n g t h a t t h e p u b l i c c a n be
f o r c e d
by a p r i v a t e d o n o r ' s
d e d i c a t i o n t o a c c e p t
r e s p o n s i b i l i t y f o r
p r o p e r t y t h e g o v e r n m e n t e n t i t y d o e s n o t w i s h t o assume.
As
t h e
t r i a l c o u r t h e r e c o r r e c t l y o b s e r v e d , i n B e a c h c r o f t I I t h e
g o v e r n m e n t
e n t i t y ,
A l a b a s t e r ,
c l a i m e d
r e s p o n s i b i l i t y
and
c o n t r o l
o v e r
t h e s e w e r s y s t e m .
I n
t h i s
c a s e , h o w e v e r ,
t h e
C o u n t y
s p e c i f i c a l l y
d i s c l a i m e d
r e s p o n s i b i l i t y
f o r
t h o s e
p o r t i o n s
o f
t h e
s t o r m - d r a i n a g e
s y s t e m
t h a t
r u n
u n d e r n e a t h
p r i v a t e p r o p e r t y i n t h e
s u b d i v i s i o n .
The
d e v e l o p e r i n
t h i s
c a s e
d i d n o t
r e s t r i c t
i t s d e d i c a t i o n
and
t h e r e f o r e d i d
n o t
i n t e r f e r e w i t h t h e C o u n t y ' s
c o n t r o l
o v e r d e v e l o p m e n t o f
t h e
s u b d i v i s i o n .
I n s t e a d , t h e C o u n t y
e x e r c i s e d
i t s c o n t r o l
by
e l e c t i n g
t o a c c e p t o n l y p a r t o f t h e d e v e l o p e r ' s
d e d i c a t i o n .
N o t h i n g i n o u r l a w p r e v e n t s s u c h a p a r t i a l a c c e p t a n c e , and
we
w i l l
n o t
r e w r i t e
t h e
l a w
t o i m p o s e
an
o b l i g a t i o n upon
t h e
C o u n t y
t h a t i t does n o t w i s h t o a c c e p t .
See I v e y , 190 A l a . a t
2 0 4 - 0 5 , 67 So. a t
509.
22
1070767
B a s e d
on t h e f o r e g o i n g ,
t h e j u d g m e n t o f t h e
t r i a l
c o u r t
a g a i n s t C h a l k l e y and i n f a v o r o f t h e C o m m i s s i o n i s a f f i r m e d .
AFFIRMED.
Cobb, C . J . , and L y o n s , W o o d a l l , S t u a r t , S m i t h , B o l i n ,
and
Shaw, J J . , c o n c u r .
P a r k e r , J . , c o n c u r s i n t h e
r e s u l t .
23 | September 30, 2009 |
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