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10c116c5-127f-4040-a5ff-fb1be3997633 | Henry v. Georgia-Pacific Corp. | 730 So. 2d 119 | 1970867 | Alabama | Alabama Supreme Court | 730 So. 2d 119 (1998)
Robin HENRY
v.
GEORGIA-PACIFIC CORPORATION and Johnny Hurst.
1970867.
Supreme Court of Alabama.
December 18, 1998.
Rehearing Denied March 12, 1999.
W. Lee Pittman and Robert Potter of Pittman, Hooks, Dutton & Hollis, P.C., Birmingham, for appellant.
Ralph D. Gaines, Jr., of Gaines, Gaines & Rasco, P.C., Talladega; and Jeffrey A. Walker of Butler, Snow, O'Mara, Stevens & Cannada, P.L.L.C., Jackson, MS, for appellees.
KENNEDY, Justice.
The plaintiff, Robin Henry, appeals from a summary judgment in favor of the defendants Georgia-Pacific Corporation and Johnny Hurst. The trial court made that summary judgment final pursuant to Rule 54(b), Ala. R. Civ. P.
In order to enter a summary judgment, the trial court must determine that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala. R.Civ.P. In determining whether a summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant. Travis v. Scott, 667 So. 2d 674 (Ala.1995).
Viewed most favorably toward the plaintiff, the evidence suggests the following: Robin Henry was employed by Georgia-Pacific. Georgia-Pacific had a contract with Zwiebel & Associates, Ltd. ("Zwiebel"), a management and consulting firm. Zwiebel was in charge of conducting employee training for Georgia-Pacific. Zwiebel hired Dr. Charles Ted Deeble. Dr. Deeble conducted some of the training and was in charge of one-on-one counseling sessions with the employees. The counseling sessions were to be business-related, according to Zwiebel; however, its president acknowledged that it never specifically told Dr. Deeble to limit the one-on-one sessions to business-related matters. (C.R. 522-23.)
According to Dr. Deeble, one of the rules for the one-on-one sessions was that the employee would select the topics for discussion. (C.R.543-44.) Georgia-Pacific never placed any restrictions on the subjects that could be discussed in the individual sessions. (C.R. 550.) Perry Nelson, the plant manager for *120 Georgia-Pacific, told Mrs. Henry that she was to meet with Dr. Deeble. (C.R.548-49, 557.) Nelson placed no restrictions on the topics that could be discussed at the sessions. (C.R.559.)
Dr. Deeble had helped some of the other employees quit smoking. (C.R.312, 317.) Mrs. Henry asked Dr. Deeble to help her quit smoking and to help her learn to relax. Another employee had told Mrs. Henry that Dr. Deeble used hypnosis to help stop smoking. (C.R.665.) At her first session with Dr. Deeble, Mrs. Henry had a positive experience with hypnosis and practiced self-hypnosis techniques.
Dr. Deeble admitted that, during a later session, he asked Mrs. Henry if she was able to achieve an orgasm with her husband. (C.R.569.) While he hypnotized Mrs. Henry, Dr. Deeble told Mrs. Henry that she was "getting horny." (C.R.335.) Dr. Deeble acknowledged that, during one session, Mrs. Henry reported that she had an orgasm-like experience during the hypnosis. (C.R.548-49.) Dr. Deeble said he was unsure whether he told Mrs. Henry that he was "getting horny." (C.R.551-52.) He admitted that he told Mrs. Henry how to experience an orgasm by imagining sexual intercourse with her husband and how to "become more responsive overall in a sexual manner." (C.R. 553-54, 220-21.) Dr. Deeble said that he may have told Mrs. Henry that he had helped other employees with sexual problems. (C.R.560-61.)
Mrs. Henry testified that she understood the purpose of the sessions to be to help the employees have a better attitude. (C.R.631.) She said her supervisors told her that "everybody would be involved and [that] we needed to cooperate fully." (C.R.632.) Plant manager Nelson stated to Mrs. Henry, "[Y]ou will cooperate or you don't have a job." (C.R.633.)
Mrs. Henry told Johnny Hurst, a supervisor, about Dr. Deeble's questioning her about orgasms, seeking his help in the matter. (C.R.649, 658, 660, 672-74.) Mrs. Henry then tape-recorded her next session with Dr. Deeble. She played the tape for Hurst so that he could listen to Dr. Deeble asking her to take off her shirt. (C.R.659.) Randy Youngblood, an assistant plant superintendent, came in and told Mrs. Henry that Dr. Deeble was "sweet on [her]." (C.R.650-53.) Youngblood told Mrs. Henry that she had to continue with the sessions or else lose her job. (C.R.661, 663, 666-67.)
Mrs. Henry stated in her deposition that she did not want to continue with the individual sessions but that she feared losing her job if she refused to see Dr. Deeble or refused to cooperate with him during the sessions. (C.R.654-55.) Johnny Hurst advised Mrs. Henry to say nothing about the one-on-one sessions if she wanted to keep her job. (C.R.662-63.) Mrs. Henry continued with the sessions until Dr. Deeble stopped coming to the plant.
Mrs. Henry sued Georgia-Pacific, Zwiebel, Dr. Deeble, and Johnny Hurst. In her complaint, Mrs. Henry sought to hold Georgia-Pacific vicariously liable for Dr. Deeble's acts. She also alleged a direct cause of action, based on the tort of outrage, against Georgia-Pacific and Johnny Hurst for requiring her to see Dr. Deeble. (C.R.19-20.) Georgia-Pacific and Johnny Hurst filed a joint motion for summary judgment. Mrs. Henry abandoned her vicarious-liability claim against Georgia-Pacific and Johnny Hurst and argued that their legal accountability arose out of insisting that she continue meeting with Dr. Deeble after she had reported what had occurred during the sessions.
The trial court entered a summary judgment for Georgia-Pacific and Johnny Hurst, based on Hendley v. Springhill Memorial Hospital, 575 So. 2d 547 (Ala.1990). The claims against Zwiebel and Dr. Deeble are still pending in the trial court.
In Hendley, we affirmed a summary judgment in favor of a hospital in a situation where an independent contractor of the hospital had performed an unnecessary vaginal examination. In Hendley, the hospital did not know of the independent contractor's actions. However, in this present case, the evidence indicates that Georgia-Pacific was told of Dr. Deeble's alleged improper sexual conduct and demanded that Mrs. Henry continue with the sessions or else lose her job.
*121 Egregious sexual harassment can amount to the tort of outrage. Busby v. Truswal Systems Corp., 551 So. 2d 322 (Ala. 1989). In Busby, a supervisor repeatedly subjected the plaintiffs to sexually harassing comments. The plaintiffs told management in general terms of the harassment, but did not initially give the details or the full extent of that conduct, and the plaintiffs did not give management time to correct the situation. This Court held that the company was not liable on the claim of outrage, based on those facts. Unlike the plaintiffs in Busby, Mrs. Henry notified a supervisor of the specific comments made by Dr. Deeble and even let him listen to a tape-recording of the comments.
Viewing the facts in the light most favorable to Mrs. Henry, as we are required to do, we conclude that the summary judgment must be reversed. A jury could reasonably determine that Georgia-Pacific and Johnny Hurst's conduct was outrageous that Johnny Hurst, working as a supervisor, was told exactly what had occurred during the sessions; that Georgia-Pacific, with prior knowledge, required Mrs. Henry to continue counselling sessions at which improper sexual conduct was occurring; and that they made Mrs. Henry's job dependent upon her attending those sessions.[1]
REVERSED AND REMANDED.
HOOPER, C.J., and ALMON, SHORES, COOK, and LYONS, JJ., concur.
MADDOX, J., dissents.
HOUSTON, J., recuses himself.
MADDOX, Justice (dissenting).
Because I believe the facts of this case fall within the purview of this Court's decision in Busby v. Truswal Systems Corp., 551 So. 2d 322 (Ala.1989), and specifically because I do not believe Ms. Henry presented substantial evidence indicating that Georgia-Pacific had sufficient knowledge of Dr. Deeble's actions to satisfy the elements of the tort of outrage, I dissent.
Although the majority has outlined most of the relevant facts of this case, I wish to discuss some of them in more detail. The evidence indicates that the lurid session with Dr. Deeble occurred on April 7, 1992. Afterwards, Ms. Henry spoke with supervisors Johnny Hurst and Randy Youngblood about the incident. Ms. Henry considered Hurst a friend and spoke with him often about personal topics. Also, Ms. Henry stated in her deposition testimony that when she discussed the incident with Hurst she thought it was understood that the conversation was confidential. As for Youngblood, Ms. Henry testified that she may have told him to keep the conversation confidential. After the April 7 incident, Ms. Henry attended sessions with Dr. Deeble approximately three more times. Ms. Henry did not attend any sessions with Dr. Deeble after May 1992. In May 1993, Ms. Henry contacted an acquaintance at the Atlanta, Georgia, headquarters of Georgia-Pacific and related the incident to him. Approximately one week after that call, Ms. Henry was interviewed by a member of Georgia-Pacific's human resources staff. Soon thereafter, she was informed by Georgia-Pacific that Dr. Deeble had been taken out of the program.
In Busby v. Truswal Systems Corp., 551 So. 2d 322 (Ala.1989), this Court dealt with issues and facts very similar to those presented here. In Busby, some female employees brought an action against Truswal Systems Corporation, their employer, alleging invasion of privacy and the tort of outrage. *122 Their outrage claim centered on accusations that one of their supervisors, Deaton, had "repeatedly subjected them to sexual harassment." Id. at 323. The employees related their accusations to Fairley, a supervisor. Id. at 323. One of the employees, Pitts, was a personal friend of Fairley. Id. at 326, n. 1. Fairley's testimony contradicted much of Pitts's testimony. Id. at 327. The trial court entered a summary judgment in favor of Truswal, and this Court affirmed, stating
Id. at 327. This Court further stated that in order to establish outrageous conduct by a corporate defendant, it must be shown that the conduct "was perpetrated as a means to further the defendant corporation's business," or that a jury could conclude that "`this is the way the company does business.'" Id. at 327. This Court concluded that "Deaton's conduct was aimed purely at satisfying his own lustful desires; no corporate purpose could conceivably be served by his overtures," and that, based on these facts, Truswal could not be "held liable as having ratified Deaton's alleged outrageous conduct." Id. at 328.
This case, like Busby, should turn on the kind of knowledge the corporate defendant had. This Court's recent decision in H.M. v. Jefferson County Board of Education, 719 So. 2d 793 (Ala.1998), discusses the principle of vicarious and respondeat-superior liability in a sexual-harassment context and discusses the circumstances under which an employer can be held liable for the acts of its agent.
In H.M., this Court dealt with a claim by parents, on behalf of their minor child, alleging same-sex sexual harassment by one of their child's teachers. In affirming a summary judgment in favor of the Jefferson County Board of Education, we stated:
719 So. 2d at 796.
It is undisputed that Ms. Henry imparted specific information to two supervisors, one of whom, as in Busby, was a personal friend. However, this case contains the additional fact that Ms. Henry expressly or impliedly suggested that her conversations with these supervisors should remain confidential. While those supervisors could be accused of bad judgment in not presenting the matter to officials of the company, their inaction, considered in light of Ms. Henry's desire to keep the incident confidential, does not establish the tort of outrage. It appears to me, given these facts, that Georgia-Pacific's conduct should not be construed as ratification of Dr. Deeble's actions or construed as suggesting that the corporation carried on its business in disregard of the welfare of its employees. On the contrary, it appears that when its corporate headquarters was notified, Georgia-Pacific took quick action to remedy the situation.
551 So. 2d at 327. While I agree that Dr. Deeble's alleged conduct was deplorable,[2] I cannot agree, based on the evidence presented in this case, that Georgia-Pacific could be said to have had the kind of knowledge required to make it vicariously liable for Dr. Deeble's alleged outrageous conduct. I believe Ms. Henry has failed to present substantial evidence establishing a genuine issue of material fact in that regard. Consequently, I respectfully dissent.
[1] Justice Maddox urges in his dissent that Georgia-Pacific should be insulated from liability by reason of Henry's understanding that her communications to her supervisors at Georgia-Pacific were confidential. However, the record reflects that, as to whether Hurst was to keep those communications private and confidential, Henry testified, "I don't know that it was my understanding." As for her communications to Youngblood, Henry said she "may have" told him to keep the conversations confidential. Moreover, even if Hurst and Youngblood, in support of Georgia-Pacific's motion for summary judgment, had offered evidence indicating that they had not communicated any information concerning their discussions with Henry and that their failure to do so was based on the understanding of confidentiality, the credibility of that evidence would be an issue for the jury. Under these circumstances, a jury question exists as to the knowledge of Georgia-Pacific.
[2] As the majority opinion indicates, Ms. Henry sued Dr. Deeble in this same action and her claim against him, based on the same alleged conduct we have considered in this appeal, is pending in the circuit court. | December 18, 1998 |
9c156971-ff9e-4426-affa-29582d0c8c1e | Ex Parte Be&k Const. Co. | 728 So. 2d 621 | 1970692 | Alabama | Alabama Supreme Court | 728 So. 2d 621 (1998)
Ex parte BE&K CONSTRUCTION COMPANY.
(Re Victor Bussen
v. BE&K Construction Company).
1970692.
Supreme Court of Alabama.
December 11, 1998.
*622 Richard W. Franklin of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, L.L.C., Mobile, for petitioner.
Bob Sherling of Sherling, Browning & York, P.C., Mobile, for respondent.
Carl Robert Gottlieb, Jr., of Reams, Philips, Brooks, Schell, Gaston, Hudson & Gottlieb, P.C., Mobile, for amicus curiae Municipal Workers Compensation Fund, Inc., in support of the petitioner.
MADDOX, Justice.
We have granted certiorari review to consider the judgment of the Court of Civil Appeals in this workers' compensation case. See Bussen v. BE&K Construction Co., 728 So. 2d 617 (Ala.Civ.App.1997). The single legal issue presented is whether an employer is statutorily entitled to subrogation to recover medical-benefits payments it has made and those it will be obligated to make in the future, or whether the employer's right of subrogation applies only to the amounts already paid.
The dispute between the employer and the employee involves an interpretation of § 25-5-11(a), Ala.Code 1975,[1] which authorizes an injured employee or the employee's dependents to bring an action against a third-party tortfeasor while concurrently maintaining an action against the employer for workers' *623 compensation benefits, but which also provides that "the employer shall be entitled to subrogation for medical and vocational benefits expended by the employer on behalf of the employee."
Victor Bussen sued his employer, BE&K Construction Company, seeking workers' compensation benefits. The trial court stayed proceedings on his workers' compensation claim pending the outcome of his action against a third-party tortfeasor based on the same incident that was the basis for his workers' compensation claim. Bussen subsequently settled the third-party action for $160,000. When the settlement was reached, BE&K had paid to Bussen, or had paid on his behalf, temporary disability benefits and medical expenses totalling approximately $16,000. Pursuant to the provisions of § 25-5-11(a), Bussen paid $10,698.65 to BE&K, in alleged satisfaction of BE&K's subrogation rights under the statute.
BE&K wrote a letter to the trial court, contending that its obligation to pay any future medical expenses should be suspended until Bussen had exhausted the settlement proceeds from the third-party action. The trial court not only denied Bussen's claim for future medical expenses, but dismissed his workers' compensation case. The effect of the trial court's ruling denying Bussen any future medical benefits was to grant BE&K relief beyond what it had requested and was adverse to Bussen. Bussen appealed. The Court of Civil Appeals reversed the judgment of the trial court, holding that under the provisions of § 25-5-11(a) BE&K was not entitled to be subrogated as to any medical benefits it might be required to pay in the future. BE&K petitioned for a writ of certiorari, which this Court granted.
This case involves a question of legislative intent, and in ascertaining legislative intent we apply traditional principles of law. This Court has previously stated that in construing a statute "the fundamental rule is that the court has a duty to ascertain and effectuate legislative intent expressed in the statute, which may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained." Ex parte Holladay, 466 So. 2d 956, 960 (Ala. 1985), citing Shelton v. Wright, 439 So. 2d 55 (Ala.1983). With this principle in mind, we have examined the language used by the Legislature and have considered the purpose the Legislature had in mind when it adopted its 1992 amendment to the Workers' Compensation Act (see note 1). We hold that § 25-5-11(a) applies to future medical benefits that have not been paid, but which the law requires the employer to pay. The language of the 1992 amendment indicates that by that amendment the Legislature intended to provide the employer full subrogation to the extent the injured employee recovers damages from a third-party tortfeasor. Section 25-5-11(a) states, in pertinent part, that "the employer shall be entitled to subrogation for medical and vocational benefits expended by the employer on behalf of the employee." The use of the word "expended" indicates to us that the Legislature contemplated subrogation as to all medical benefits paid, regardless of when such benefits were paid. We can draw no inference from the statutory language or from the presumed purpose of the statute that would indicate that the Legislature, by using the word "expended," intended to allow the employer subrogation as to those expenses it had already paid, but not as to those amounts it is legally required to "expend" in the future.
A number of states have enacted statutes specifically providing the employer or its insurer subrogation as to the amounts it pays for the employee's future medical expenses. See, e.g., Conn. Gen.Stat. § 31-293 (1997); Del.Code Ann. tit. 19, § 2363 (1995); Fla. Stat. ch. 440.39 (Supp.1998); Mich. Comp. Laws § 418.827 (Supp.1998). In situations, however, where state legislatures were not as precise in dealing with the issue of subrogation rights, courts have held that an insurer may withhold payment of future medical benefits until the recovery from a third-party tortfeasor is exhausted, at which time the insurer would resume payment. See Bilodeau v. Oliver Stores, Inc., 116 N.H. 83, 352 A.2d 741 (1976); and Richard v. Arsenault, 349 Mass. 521, 209 N.E.2d 334 (1965). Further, Professor Larson, in his treatise on workers' compensation, reasons that "if the statute does not take pains to deal explicitly *624 with the problem of future benefits, but merely credits the carrier for compensation paid ... the correct holding is still that the excess of the third-party recovery over past compensation actually paid stands as a credit against future liability of the carrier." A. Larson, Workmen's Compensation Law, § 74-31(e), p. 14-471 (1989 & Supp.1990).
We conclude that the Legislature, by using the word "expended," did not intend to limit subrogation to benefits that had been paid, but intended, as Professor Larson suggested, that the excess of the third-party recovery over the amount paid in past medical and vocational benefits should stand as a credit against future liability. Stated differently, we believe the Legislature intended that the law of subrogation apply. This Court has held:
Powell v. Blue Cross & Blue Shield, 581 So. 2d 772, 774 (Ala.1990) (citations omitted); quoted in American Economy Ins. Co. v. Thompson, 643 So. 2d 1350, 1352 (Ala.1994).
We conclude that the Legislature intended that in situations where the injured employee recovers from a third-party tortfeasor, the amount of that recovery attributable to the employee's medical or vocational expenses should be exhausted before the employer or its workers' compensation insurer is obligated to resume payment of those expenses. In reaching this conclusion, we recognize that when a workers' compensation claimant has also filed a third-party action, the parties in the third-party action should make a concerted effort to ensure that any recovery, whether by settlement or by trial, is fairly apportioned so as to designate how much of the recovery is attributable to medical (and vocational) expenses, both past and future. Therefore, it is in the capable hands of the trial judges presiding over the third-party actions to determine to their satisfaction the amount of each award in a third-party action to be attributed to the employee's medical (or vocational) expenses.
We reverse the judgment of the Court of Civil Appeals and remand this cause to that Court with instructions to have the trial court conduct a hearing to determine, using equitable principles applicable to subrogation rights, which part of Bussen's settlement is attributable to his medical expenses and thereafter to enter an order allowing BE&K subrogation as to that portion of Bussen's third-party recovery that is attributable to future medical expenses that BE&K would be legally required to pay. When the portion of the recovery that is attributed to future medical expenses is exhausted, BE&K will then be required to resume payment of medical expenses.
REVERSED AND REMANDED, WITH INSTRUCTIONS.
HOOPER, C.J., and HOUSTON, SEE, and LYONS, JJ., concur.
SHORES and COOK, JJ., dissent.
[1] "If the injury or death for which compensation is payable under Articles 3 or 4 of this chapter was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer ... the employee... may proceed against the employer to recover compensation under this chapter or may agree with the employer upon the compensation payable under this chapter, and at the same time, may bring an action against the other party to recover damages for the injury or death, and the amount of the damages shall be ascertained and determined without regard to this chapter.... If the injured employee ... recovers damages against the other party, the amount of the damages recovered and collected shall be credited upon the liability of the employer for compensation.... For purposes of this amendatory act, the employer shall be entitled to subrogation for medical and vocational benefits expended by the employer on behalf of the employee; however, if a judgment in an action brought pursuant to this section is uncollectible in part, the employer's entitlement to subrogation for such medical and vocational benefits shall be in proportion to the ratio the amount of the judgment collected bears to the total amount of the judgment." § 25-5-11(a), Ala.Code 1975, as amended by 1992 Ala. Acts, Act No. 92-537, § 8. | December 11, 1998 |
47ffdaff-6880-454d-8be2-1c2da9ec275e | Fielder v. USX Corp. | 726 So. 2d 647 | 1970979 | Alabama | Alabama Supreme Court | 726 So. 2d 647 (1998)
Felecia FIELDER et al.
v.
USX CORPORATION and Larry Dillard.
1970979.
Supreme Court of Alabama.
December 18, 1998.
*648 Michael D. Petway of McNamee, Snead & Mobley, Birmingham, for appellant.
William F. Murray, Jr., and Ricky J. McKinney of Burr & Forman, L.L.P., Birmingham, for appellees.
MADDOX, Justice.
The plaintiffs, Felecia Fielder and her minor children, appeal from a summary judgment entered in favor of the defendants USX Corporation and Larry Dillard, safety and security director of USX.
Clyde Fielder, the husband of Felecia Fielder, was employed as a train operator helper by the Fairfield Southern Company from 1989 until his death in 1995. Fairfield Southern is based in Birmingham and is engaged in the railroad industry. Specifically, Fairfield Southern is an independent contractor that performs industrial switching for United States Steel, a division of USX Corporation. All of Fairfield Southern's operations and services are conducted on property owned by USX.
On October 4, 1995, just before midnight, Clyde Fielder reported to work. His work site was known as the "Tin Mill 13" site. On that night, the remnants of Hurricane Opal were passing through the Birmingham area, causing severe weather that included high winds and heavy rain. Upon arriving at the work site, Fielder was ordered to assist in switching cars. James Martin Johnson, another employee of Fairfield Southern, was ordered to assist Fielder. Johnson was employed as a locomotive operator.
Both Johnson and Fielder were working at the entrance to the Tin Mill 13 site. USX employees were also working on that night. As part of their assignment, Johnson and Fielder were required to back a locomotive engine, attached to four cars, through a set of double doors and into a building located at Tin Mill 13. When Johnson and Fielder arrived, the double doors were shut and were held closed by a four-by-four timber. The two men opened the doors so as to move the locomotive and the attached cars into the building. The doors opened outward. Fielder opened the left door and secured it with the latch located on the door. The right door latch was broken, so Johnson and Fielder wedged that door open with the four-by-four, as they had done numerous times before.
Johnson then mounted the locomotive to begin moving it and the attached cars into the building. As they began to move, Johnson was located on the left side of the engine. Fielder was riding on the right side of the train near the rear of the end car. Although the employer had a rule against riding the car in this fashion, it was a typical practice for train operator helpers to ride the cars into the building. On the left side of the double doors was a sign that read "Danger no clearance for man on car."
While maneuvering the cars, Johnson could not see Fielder, but maintained radio contact with him. Johnson relied on Fielder to visually assist him in backing the cars.
Above the double-door entrance is a lighting mechanism that is operated by USX employees. The lighting mechanism has a red light and a green light that indicate whether the cars may enter the building. The green light indicates that the tracks inside the building are unlocked and are aligned properly so that cars may enter the building. The red light indicates the opposite. On the night in question, the green light was illuminated, both at the time Johnson and Fielder opened the doors and when they began shoving the cars into the building.
Johnson radioed to Fielder that he intended to shove the cars against the line located on the wall inside the building. Johnson testified that this meant that he was not *649 going to shove the cars all the way to the "block" located inside the building. Johnson radioed to Fielder that he should get down from the train, so that Johnson could shove the cars "to the line." Fielder radioed back, indicating that he would comply. That was the last radio contact Johnson had with Fielder.
As Johnson was positioning the cars, he heard the right door, which he and Fielder had wedged open, hit the side of the engine. Although it was not conclusively established, it appeared that the right door may have been closed as the end car was shoved into the building, and that Johnson realized something was awry only when the door hit the engine. Johnson radioed Fielder but received no reply. Johnson dismounted the train and saw Fielder's radio lying on the ground. He then discovered Fielder's body underneath the train. Apparently, Fielder had not dismounted the train and had been killed when he was knocked underneath the wheels.
Felecia Fielder, along with her minor children, filed a wrongful-death action against USX and Larry Dillard. The plaintiffs alleged in their complaint that the defendants had known or should have known that the premises where Clyde Fielder was injured were "unsafe, hazardous, defective and dangerous." Also, they alleged that the defendants had "negligently and/or wantonly maintained the subject premises" in such a dangerous condition and had "negligently and/or wantonly failed to warn" Mr. Fielder of the dangers.
To support these claims, the plaintiffs point to the condition of the latch on the right door. Specifically, they argue that the broken latch made the door unsafe and therefore contributed to Mr. Fielder's fatal accident. Additionally, they argue that USX literally "green-lighted" Johnson and Mr. Fielder's movement of the train cars into the Tin Mill 13 building. By illuminating the green light, the plaintiffs argue, USX communicated that it was safe to enter the building. To the contrary, USX argues, and the evidence supports its argument, that the green light indicated only that conditions were "safe inside the building."
During the course of discovery, Dillard testified that USX had conducted safety inspections of the premises in the area of the Tin Mill 13 site. Dillard testified that USX had inspected physical conditions and had observed the actions of the employees. Dillard also said that USX employees had discussed the matter of safety with the leadership of the various independent contractors, but not with the individual employees of the contractors.
Relying on Dillard's testimony, the plaintiffs also argue that USX and Dillard are subject to liability on the theory of negligent inspection. USX and Dillard argue that they conducted inspections for the benefit of USX employees working on the premises and that they did not specifically inspect the door area where Clyde Fielder was injured.
A summary judgment is proper if there is "no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala.R.Civ.P. "`In reviewing a summary judgment,... this Court will review the record in a light most favorable to the nonmovant and will resolve all reasonable doubts against the movant.'" Copeland v. Samford University, 686 So. 2d 190, 191 (Ala.1996) (quoting Diamond v. Aronov, 621 So. 2d 263, 265 (Ala.1993)). "In [reviewing a] summary judgment, we are limited ... to the ... factors considered by the trial court when it initially ruled on the motion." Barnes v. Liberty Mut. Ins. Co., 472 So. 2d 1041, 1042 (Ala.1985).
Both parties acknowledge the existence of this well-settled rule:
However, the plaintiffs rely on an exception to that rule as stated in Herston v. Whitesell, 374 So. 2d 267 (Ala.1979). In Herston, this Court stated that "`one who volunteers to act, though under no duty to do so, is thereafter charged with the duty of acting with due care.'" Id. at 270, quoting United States Fidelity & Guaranty Co. v. Jones, 356 So. 2d 596, 598 (Ala.1977). The plaintiffs point to two facts to support their contention that this exception applies in this case: First, the fact that USX operated the lighting mechanism; and second, the fact that the defendants conducted safety inspections. The plaintiffs argue that the evidence of these two facts constitutes
Because the USX employees illuminated the green light when, the plaintiffs say, it was, in fact not safe to enter the building, the plaintiffs argue that there is a genuine issue of material fact as to whether the defendants were negligent. Also, because the defendants had failed to correct the defective door latch, or to warn Clyde Fielder of it, the plaintiffs argue that the defendants conducted their inspections negligently and that this negligent inspection also creates a genuine issue of material fact for trial. We disagree.
First, although the evidence shows that USX controlled the lighting mechanism above the doors, no evidence suggested that a green light indicated that it was safe for the independent contractor's employees to enter the building. Instead, the evidence established that the green light indicated only that the tracks inside the building were properly aligned so that cars could enter the building. The facts are undisputed that the green light was illuminated when Johnson and Fielder arrived and the doors were closed. These facts support the defendants' argument that the lighting mechanism did not indicate the condition of the doors, but indicated the condition and positioning of the tracks inside the building. Therefore, there is no issue of fact to be determined.
Second, the negligent-inspection claim must fail also. This Court has held, that to establish negligent inspection, a "plaintiff must prove (1) that the defendant had undertaken to inspect the site, particularly the area in which the injury-causing hazard is located, (2) that the defendant performed such inspection negligently, and (3) that such negligence proximately caused the injuries." Alabama Power Co. v. Williams, 570 So. 2d 589, 591 (Ala.1990). No evidence in the record indicates that the defendants conducted inspections in the particular area where Mr. Fielder's accident occurred. Therefore, the plaintiffs did not carry their burden of proof as to the first element.
This Court has held that "[t]here is no duty to warn" an employee of an independent contractor "who has equal or superior knowledge of a potential danger." Alabama Power Co. v. Williams, supra, at 592. The evidence clearly shows, without contradiction, that Mr. Fielder knew of the condition of the right door, that on numerous occasions he had used a foreign object to prop open that door, and that he knew of the severe weather on the night of his accident.
The trial court properly entered the summary judgment for the defendants.
AFFIRMED.
HOOPER, C.J., and ALMON, HOUSTON, KENNEDY, SEE, and LYONS, JJ., concur.
COOK, J., concurs in the result.
SHORES, J., dissents. | December 18, 1998 |
c21fc4cc-e63f-4a90-b2f3-8d3065dca253 | Ex Parte DBR | 757 So. 2d 1193 | 1970987 | Alabama | Alabama Supreme Court | 757 So. 2d 1193 (1998)
Ex parte D.B.R.
(In re D.B.R. v. MOBILE COUNTY DEPARTMENT OF HUMAN RESOURCES et al.).
1970987.
Supreme Court of Alabama.
December 18, 1998.
*1194 Patricia W. Hall, Mobile, for petitioner.
J. Coleman Campbell and Lynn S. Merrill, asst. attys. gen., Department of Human Resources, for respondent.
HOOPER, Chief Justice.
This is a child custody case. We have granted certiorari to consider the judgment of the Court of Civil Appeals. See D.B.R. v. Mobile County Department of Human Resources, 757 So. 2d 1190 (Ala. Civ.App.1998).
D.B.R. and his wife both lost custody of their daughter three days after she was born. Both parents had a history of mental illness. The Department of Human Resources placed the child in the maternal grandmother's temporary custody. On April 31, 1996, the Department found the child to be dependent and placed her in the physical custody of the maternal grandmother, with the Department retaining temporary legal custody.
This case began on October 7, 1996, when both parents moved to establish visitation. Initially, both parents were represented by the same attorney, and a guardian ad litem was appointed for the child. The maternal grandmother, represented by her own counsel, sought custody. The mother and father disagreed with the custody petition filed by the grandmother, because D.B.R. himself wanted custody of the child. In seeking custody, D.B.R. requested a public defender to represent him. However, he did not file an "affidavit of substantial hardship." He merely stated that his yearly income was $5,500 and that he could not continue paying his attorney. The referee denied this request, and the trial court affirmed that denial. Subsequently, D.B.R. represented himself.
On March 10, 1997, based on the referee's recommendations, the trial judge awarded the maternal grandmother custody and awarded D.B.R. supervised visitation with the child. On March 18, 1997, D.B.R., acting pro se, filed a document styled "Appeal of Decisions of March 3, 1997." (The referee had conducted a hearing on March 3, 1997.) In that filing, he stated that it was made "on behalf of the minor child by the father." The trial court treated the filing as a petition for a rehearing pursuant to § 12-15-6(d), Ala.Code 1975. On April 4, 1997, the court denied the rehearing petition.
An attorney was appointed for D.B.R. for the purpose of an appeal. On April 17, 1997, D.B.R. filed an appeal to the Court of Civil Appeals from the order denying what he called "his motion to alter, amend or vacate" the court's order. The Court of Civil Appeals construed the March 18, 1997, filing as a motion for a rehearing or to alter, amend, or vacate the judgment and concluded that it had been deemed denied as of April 1, 1997, based on Rule 1(B), Ala.R.Juv.P. Based on that construction of the motion, the last day allowed for an appealthe 14th daywas April 15, 1997. Rule 28(C), Ala.R.Juv.P. Because D.B.R.'s appointed attorney had filed the notice of appeal on April 17, 1997, the Court of Civil Appeals dismissed the appeal as untimely. 757 So. 2d at 1192.
The first issue is whether the trial court erred in treating the document entitled "Appeal of Decisions of March 3, 1997" as a post-judgment motion for a rehearing. If so, and if it was properly to be treated as an appeal, we must consider whether it was timely filed. If it was, then we must consider whether the trial court erred in not appointing counsel for D.B.R. in the original trial.
It appears the Court of Civil Appeals' concern was the wording of D.B.R's filing, which stated that it was made "on behalf of the minor child." The Court of Civil Appeals interpreted this document as a motion by D.B.R., as the child's father, for a rehearing or to alter, amend, or vacate the order. However, as Judge Crawley stated in his dissent, "the language used by a pro se litigant cannot be viewed in a technical sense." 757 So. 2d at 1192. That language mentioning the child could be understood as indicating that the child was the object of the father's concern. We cannot and should not expect a pro se litigant to use the same technical precision that we expect from a lawyer.
A party questioning the sufficiency of the evidence in a nonjury fact determination may appeal the ruling directly, because in such a case the filing of a post-trial motion is not a predicate for appellate review. Rule 52(b), Ala. R. Civ. P. In order for D.B.R. to appeal, it was not necessary for him to first file a post-judgment motion. Therefore, the trial court could have treated the March 18, 1997, filing as an appeal rather than as a postjudgment motion. A court is to construe pleadings so as to do substantial justice. Rule 8(f), Ala. R. Civ. P.
The trial court considered the March 18, 1997, filing, styled "Appeal of Decisions of March 3, 1997," as a petition for a rehearing. The document does not mention the word "rehearing," nor is there any indication that D.B.R. intended for this document to be a request for a rehearing. However, there is evidence that he intended to appeal the court's previous determination. Throughout the document filed March 18, 1997, D.B.R. uses language consistent with an appeal. Because Rule 52(b), Ala. R. Civ. P., permits D.B.R. to directly appeal the court's ruling, and because of the principle of Rule 8 that all pleadings are to be construed so as to do substantial justice, we conclude that the March 18, 1997, filing was more properly to be considered as a notice of appeal, not as a petition for a "rehearing" or as a motion to alter, amend, or vacate the judgment. Because we construe D.B.R's filing as a notice of appeal, we must consider whether the ruling of March 10, 1997, is, in fact, a final judgment and therefore appealable.
In Potter v. State Dep't of Human Resources, 511 So. 2d 190 (Ala.Civ.App. 1986), the Court of Civil Appeals held that a decision of a juvenile court finding that children were dependent and awarding temporary custody to the children's maternal grandparents and the state, constituted a "final judgment, order, or decree" for the purpose of the rule giving parents 14 days from the entry of a "final judgment, order or decree" in which to file a notice of appeal. 511 So. 2d at 192. We conclude that the trial court's order of March 10, 1997, was an appealable order and that D.B.R.'s filing of March 18, 1997, was a timely notice of appeal from that order.
As for D.B.R.'s petition to be treated as an indigent, we question why the trial court appointed an attorney for D.B.R. for the purpose of his appeal but not for the purpose of the original trial. Section 12-15-63(b), Ala.Code 1975, states:
It is not the responsibility of this Court to determine whether D.B.R. is in fact indigent and therefore entitled to appointed counsel. However, the record before us indicates that the trial court should review D.B.R.'s status again to determine whether he is entitled to appointed counsel.
We reverse the judgment of the Court of Civil Appeals and remand for that court to direct the trial court to determine if *1196 D.B.R. was indigent at the time of trial, and, if so, to grant him a new trial. If the trial court determines D.B.R. was not then indigent, then the Court of Civil Appeals is to consider the merits of his appeal.
REVERSED AND REMANDED WITH INSTRUCTIONS.
SHORES, HOUSTON, KENNEDY, and COOK, JJ., concur.
LYONS, J., concurs in the result.
MADDOX, J., dissents. | December 18, 1998 |
100c9448-6fb6-4f98-b5e4-304af6a525f8 | Emperor Clock Co., Inc. v. AT&T CORP. | 727 So. 2d 41 | 1970566 | Alabama | Alabama Supreme Court | 727 So. 2d 41 (1998)
EMPEROR CLOCK COMPANY, INC.
v.
AT&T CORPORATION.
1970566.
Supreme Court of Alabama.
December 11, 1998.
Robert T. Cunningham, Jr., J. Stephen Legg, and David G. Wirtes, Jr., of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile, for appellant.
Robin G. Laurie of Balch & Bingham, L.L.P., Montgomery; Allan R. Chason of Chason & Chason, P.C., Bay Minette; and Laura A. Kaster, of AT&T Corporation, Liberty Corner, NJ, for appellee.
PER CURIAM.
AT&T Corporation filed an action alleging that Emperor Clock Company, Inc., had breached its contract to purchase at least a stated minimum amount of long-distance telephone service from AT&T over 36 months. Emperor filed a counterclaim alleging breach of contract and fraud in the inducement of the contract. The circuit court entered a summary judgment for AT&T on the counterclaim, holding that the claims asserted therein were barred under the "filedrate" doctrine and were preempted by the jurisdiction of the Federal Communications Commission (FCC) and the Alabama Public Service Commission (APSC). The court made the summary judgment final, pursuant to Rule 54(b), Ala. R. Civ. P., and Emperor appealed.
The evidence, viewed in a light most favorable to Emperor, indicates that in April 1994 AT&T represented orally and in writing that if Emperor switched its long-distance service to AT&T, then Emperor would reap substantial savings on its long-distance bill. Based on these representations, Emperor agreed to use at least $72,000 in long-distance service over the life of the contract, 36 months. When Emperor discovered that it was actually paying more for long-distance service than it had paid with its previous provider, Emperor terminated the contract. Emperor paid $24,511.03 for the long-distance service it had used. AT&T brought this action against Emperor for the balance remaining under the contract, which it alleged to be $47,488.97. Emperor filed a counterclaim alleging, in the alternative, that AT&T either had breached the contract or had procured the contract by fraud.
The "filed-rate" or "filed-tariff" doctrine arose many years ago. See Kansas City Southern R. v. Carl, 227 U.S. 639, 33 S. Ct. 391, 57 L. Ed. 683 (1913). The doctrine was established to prevent regulated, monopolistic interstate transportation and communications companies from discriminating *42 among their respective customers with respect to rates for particular services. These regulated industries are required by law to file a tariff with the appropriate regulatory body, such as the FCC and the APSC, that sets forth in detail the rates to be charged and the services to be provided under various sets of circumstances. Once a company files a tariff, the company is forbidden from deviating from the rates contained therein. Under the filed-rate doctrine, a consumer of the regulated service is conclusively presumed to have notice of the contents of the tariff and may not claim that it is entitled to any rate other than the rate contained in the tariff.
In Mobley v. AT&T Corp., 717 So. 2d 367 (Ala.1998), this Court affirmed a judgment on the pleadings for the defendant. The plaintiffs had alleged "that AT&T Corporation fraudulently misrepresented its billing practices and suppressed the fact that it rounds up to the next minute its charges for long distance telephone calls." 717 So. 2d at 367-68. The judgment for AT&T was based on the filed-rate doctrine. This Court affirmed, noting that "the conclusive presumption that the plaintiffs knew of the filed rate bars these claims." 717 So. 2d at 368.
During the pendency of this present appeal, the United States Supreme Court reaffirmed the filed-rate doctrine in a case quite similar to this one, holding that the antidiscrimination policy behind the doctrine is so important that a consumer of regulated services cannot assert a state-law claim based on alleged promises that differed from the published tariff. See American Tel. & Tel. Co. v. Central Office Tel., Inc., 524 U.S. 214, 118 S. Ct. 1956, 141 L. Ed. 2d 222 (1998). In Central Office, the Supreme Court stated that "even if a carrier intentionally misrepresents its rate and a customer relies on the misrepresentation, the carrier cannot be held to the promised rate it if conflicts with the published tariff." 524 U.S. at ___, 118 S. Ct. at 1963.
Emperor does not claim that the rate actually charged by AT&T exceeded the applicable rate stated in AT&T's filed tariff. Emperor argues that AT&T falsely represented that Emperor would save money if it switched to AT&T. Such a claim is barred by the conclusive presumption that a customer knows the filed rate. Central Office, supra; Mobley, supra.
Emperor argues that recent changes in the law have effectively repealed the filed-rate doctrine. Without discussing those changes, we simply note that they occurred after the events on which Emperor bases its claims had occurred.
Emperor's claims are barred by the filed-rate doctrine.
AFFIRMED.
HOOPER, C.J., and MADDOX, ALMON, SHORES, HOUSTON, COOK, SEE, and LYONS, JJ., concur. | December 11, 1998 |
1f5fb5ae-4daa-4c6c-8b2f-f7b0f65d47da | Brooks v. FIRST FEDERAL SAV. & LOAN ASS'N | 726 So. 2d 640 | 1961570 | Alabama | Alabama Supreme Court | 726 So. 2d 640 (1998)
Alder Pearl BROOKS, By and Through Mildred VICKERS and Helen Jean Rhodes, her next friends; and Mildred Vickers and Helen Jean Rhodes, individually
v.
FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF SYLACAUGA.
1961570.
Supreme Court of Alabama.
December 18, 1998.
*641 Thomas Reuben Bell, Sylacauga; James S. Hubbard, Anniston; and William Henry Agee, Anniston, for appellants.
Michael A. LeBrun of Potts & Young, L.L.P., Florence; and Steven D. Adcock, Talladega, for appellee.
LYONS, Justice.
Alder Pearl Brooks, Mildred Vickers, and Helen Jean Rhodes (together, "the Brookses") are plaintiffs in an action pending in the Talladega Circuit Court against First Federal Savings and Loan Association of Sylacauga ("First Federal"). We granted the Brookses permission, pursuant to Rule 5, Ala. R.App. P., to appeal from the trial court's order denying their motion in limine. We reverse and remand.
The Brookses' action was tried once before, and a jury found for the defendant, First Federal. The trial court entered a judgment in favor of First Federal on that verdict. However, the Court of Civil Appeals reversed that judgment in Brooks v. First Fed. Sav. & Loan Ass'n of Sylacauga, 679 So. 2d 1148 (Ala.Civ.App.1996) ("Brooks I"), and remanded the cause for a new trial. In Brooks I, the Court of Civil Appeals set out the following pertinent facts:
679 So. 2d at 1149.
During the first trial, First Federal called several witnesses who gave parol evidence regarding the intent of the parties who entered into the alleged trust agreement. Brooks I, 679 So. 2d at 1149-50. Apparently, First Federal used these witnesses to try to prove that Pearl Brooks and Louie Brooks did not enter into a trust agreement, but merely opened a joint account, from which Louie Brooks could withdraw the funds at any time. The Court of Civil Appeals held the admission of this parol evidence to be reversible error because, that court held, the instrument completely and unambiguously created a trust. Id. The Court of Civil Appeals reversed the judgment. First Federal petitioned for certiorari review; however, this Court denied its petition. Id. at 1148.
On remand, the Brookses filed two motions in limine. In their first motion, they asked the court to exclude expert testimony that First Federal sought to introduce at the new trial. Their motion in limine addressed the following issues: (1) whether the expert could testify that the instrument was patently ambiguous as to the terms that would govern the administration of the trust; (2) whether the expert could testify that Alder Pearl Brooks and Louie Brooks were co grantors or co-settlors of the trust; (3) whether the expert could testify that the terms of the trust specifically allowed either grantor, Mr. or Mrs. Brooks, to withdraw money from the trust; (4) whether the expert could testify that the word "or" in the phrase "Mr. Louie H. Brooks or Mrs. Alder Pearl Brooks, Trustees," which phrase appears on the line provided for the trustee's name, means that either Mr. Brooks or Mrs. Brooks could withdraw the trust funds without the consent of the other; and (5) whether the expert could testify that when First Federal allowed Mr. Brooks to withdraw funds from the trust, First Federal did not act in bad faithbad faith being a requirement the Brookses must prove to hold the bank liable under §§ 19-1-9 and -10, Ala.Code 1975.
In their second motion, the Brookses asked the trial court to rule that the following are questions of law: (1) whether one grantor can withdraw funds from the subject trust without the consent of the other; (2) whether one trustee can withdraw funds from the subject trust without the consent of the other trustee; and (3) whether §§ 19-1-9 and -10, Ala.Code 1975, apply to this case. In that motion, the Brookses also argued that because these issues are questions of law, First Federal's proposed expert testimony is not appropriate.
The trial court issued an order on both motions that provides, in pertinent part:
The Brookses requested permission to appeal from this interlocutory order, pursuant to Rule 5, Ala. R.App. P. The trial judge stated that his interlocutory order involved "a controlling question of law as to which there is substantial ground for differences of opinion *643 and that an immediate appeal from this order would materially advance the ultimate determination of the litigation and the appeal would avoid protracted and expensive litigation." See Rule 5(a). We granted the Brookses permission to appeal.
We begin with the trial court's holding in parts one and two of its order: that the jury must resolve questions of fact in determining whether Mr. Brooks, as grantor, could withdraw funds from the trust account without the consent of the other grantor, Mrs. Brooks; and whether Mr. Brooks, as trustee, could withdraw funds from the trust account without the consent of the other trustee, Mrs. Brooks. The Brookses argue that both of these questions are questions of law for the trial court because the Court of Civil Appeals has already held, in Brooks I, that the trust instrument is complete and unambiguous. We agree.
The rule of law governing the construction of contracts is that "[i]f the terms within a contract are plain and unambiguous, the construction of the contract and its legal effect become questions of law for the court...." McDonald v. U.S. Die Casting & Dev. Co., 585 So. 2d 853, 855 (Ala.1991). In Brooks I, the Court of Civil Appeals held that the terms of the trust instrument are complete and unambiguous, and this Court denied review. 679 So. 2d at 1148, 1150. Therefore, under the doctrine of the law of the case, the meaning of the trust instrument and whether Mr. Brooks alone could withdraw funds from the trust account are questions of law for the trial court; thus, the trial court erred in holding that these are questions of fact. See Gray v. Reynolds, 553 So. 2d 79, 81 (Ala.1989) ("It is well established that on remand the issues decided by an appellate court become the `law of the case,' and that the trial court must comply with the appellate court's mandate.").
Because no fact issue exists as to parts one and two of the trial court's order and the issues are questions of law for the trial court, expert testimony is not appropriate. Therefore, we find it unnecessary to reach part four of the trial court's order, dealing with the admissibility of expert testimony to resolve perceived questions of fact stated in parts one and two.
We now turn to part three of the trial court's order, dealing with the law governing First Federal's alleged wrongdoing in connection with Mr. Brooks's transfers from the trust account.[1] The Brookses argue that §§ 19-1-9 and -10, Ala.Code 1975, do not apply to their complaint. Sections 19-1-9 and -10 are part of the Uniform Fiduciaries Act ("the U.F.A."), which our legislature adopted in 1943. The U.F.A. deals with cases, like the present case, in which "a beneficiary tries to impose liability upon a bank for a fiduciary's malfeasance" and it "generally imposes upon the beneficiary the risk of fiduciary misappropriation of checks or funds belonging to the beneficiary" unless the bank had actual knowledge of the fiduciary's wrongdoing or had knowledge of such facts that its action amounts to bad faith. Marion W. Benfield, Jr. & Peter A. Alces, Bank Liability for Fiduciary Fraud, 42 Ala. L.Rev. 475, 488, 492 (1991). The U.F.A. insulates banks that deal with wrongdoing fiduciaries from liability unless the beneficiary can show that the bank had actual knowledge of the wrongdoing or had knowledge of such facts that prove bad faith on the part of the bank. §§ 19-1-1 to -13.
First, the Brookses maintain that the Uniform Commercial Code ("the U.C.C."), as codified in Title 7, Ala.Code 1975, imposes obligations upon First Federal beyond the actual-knowledge and bad-faith standards imposed under the U.F.A. Specifically, the Brookses contend that § 7-4-401, Ala.Code 1975, applies in this case. However, that section deals with the question of when an "item" is properly payable from a customer's account. "`Item' means an instrument or a promise or order to pay money handled by a bank for collection or payment. The term *644 does not include a payment order governed by Article 4A or a credit or debit card slip." § 7-4-104(9), Ala.Code 1975. "Article 4A governs a specialized method of payment referred to in the Article as a funds transfer but also commonly referred to in the commercial community as a wholesale wire transfer." § 7-4A-102, Ala.Code 1975, official comment.
Mr. Brooks made three transfers from the trust account. The first transfer was a written "Intra-Bank Transfer," in which Mr. Brooks ordered First Federal to transfer $31,121.50 from the trust account to the savings account he shared with his son. First Federal completed this transfer electronically. Thus, Article 4A governs the first transaction, and § 7-4-401 is inapplicable.
In the second and third transfers, Mr. Brooks used nonnegotiable cash withdrawal slips to withdraw trust-account funds in the amounts of $5,000 and $15,838.17, respectively. He then deposited this cash into the savings account he shared with his son. Because these withdrawals, unlike the first transfer, are not transfers under Article 4A, § 7-4-401 could apply if these withdrawals were done either by an "instrument or a promise or order to pay money handled by a bank for collection or payment." § 7-4-104(9).
The word "instrument," as defined in the U.C.C. as adopted by our legislature, "means a negotiable instrument." § 7-3-104(b).
§ 7-3-104(a). The purported instrument must also be in writing. See §§ 7-3-103(a)(9) and (a)(6), Ala.Code 1975 (stating that a "promise" and an "order" must be "a written undertaking" or "a written instruction," respectively).
Also, the U.C.C. defines an "order" as follows:
§ 7-3-103(6). "`Promise' means a written undertaking to pay money signed by the person undertaking to pay. An acknowledgment of an obligation by the obligor is not a promise unless the obligor also undertakes to pay the obligation." § 7-3-103(9).
These withdrawal slips are not "instruments," because they state that they are nonnegotiable. Section 7-4-401 also applies to a promise or order to pay money. However, neither of the withdrawal slips that effectuated these two transfers is a "promise" because neither contains "a written undertaking." Also, neither slip is an "order" because neither is "a written instruction" to pay money. Thus, § 7-4-401 does not apply to any of these transfers from the trust account.
Furthermore, § 7-3-307, entitled "Notice of breach of fiduciary duty," does not apply. The legislature added this section of the U.C.C. in 1995 when it revised Article 3 by repealing all the sections thereof and replacing them with new sections. Former §§ 7-3-304(2) and 7-3-304(4)(e) related to this issue but were unclear. Section 7-3-307 "states rules for determining when a person who has taken an instrument from a *645 fiduciary has notice of a breach of fiduciary duty that occurs as a result of the transaction with the fiduciary." § 7-3-307, Ala.Code 1975, official comment. Therefore, § 7-3-307 applies only when a person takes an instrument. As stated above, none of these transfers involved an instrument. Accordingly, § 7-3-307 does not apply.
We must also address the Brookses' argument that §§ 19-1-9 and -10 do not apply to their claims. First, we hold that § 19-1-10 is not applicable to the Brookses' claims, because it deals with deposits made by check, and it is undisputed that none of the deposits in this case were made by check. Second, we hold that § 19-1-9 is not applicable to the Brookses' claims. Section 19-1-9 addresses a bank's liability for the act of accepting a deposit into a fiduciary's personal account when the fiduciary is not entitled to make such a deposit and for the act of allowing a fiduciary to misuse trust funds deposited in the fiduciary's personal account. See Heffner v. Cahaba Bank & Trust Co., 523 So. 2d 113 (Ala.1988). The Brookses complain that First Federal improperly allowed Mr. Brooks to withdraw funds from the trust account. They do not allege that First Federal is liable either for allowing Mr. Brooks to deposit trust funds into his personal account or for allowing him to misuse the trust funds deposited into his personal account. Thus, First Federal's allegedly wrongful acts are not within the purview of § 19-1-9.[2]
The trial court erred when it held that the meaning of the trust instrument is a question of fact for the jury and that First Federal's expert could testify as to the meaning of that instrument. Also, the trial court erred in holding that §§ 19-1-9 and -10, Ala.Code 1975, apply to the Brookses' claims. Accordingly, the trial court's order denying the Brookses' motion in limine is reversed and the cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
SHORES, KENNEDY, and COOK, JJ., concur.
ALMON, J., concurs in the result.
HOOPER, C.J., and SEE, J., concur in part and dissent in part.
SEE, Justice (concurring in part and dissenting in part).
I concur with those portions of the main opinion that hold that the meaning of the trust instrument is a question of law; that whether Mr. Brooks alone could withdraw funds from the trust account is a question of law; that the testimony of First Federal's expert as to the meaning of the trust instrument was inadmissible; and that Ala.Code 1975, § 19-1-10, does not apply to shield First Federal from the Brookses' claims. I respectfully dissent, however, from that portion of the main opinion that holds that First Federal's allegedly wrongful acts are not within the purview of Ala.Code 1975, § 19-1-9.
(Emphasis added.) Thus, there are two requirements for a bank to have immunity under § 19-1-9: (1) that the fiduciary, or agent, deposit money held as a fiduciary, or as an agent, into his personal account; and (2) that such deposits be made by "check" or "otherwise." The main opinion does not dispute that the second requirement of § 19-1-9that such deposits be made by "check" or "otherwise"expressly covers Mr. Brooks's noncheck deposits of trust account funds into his personal account. However, the main opinion concludes that the first requirement of § 19-1-9that the fiduciary or agent deposit trust money into his personal account is not implicated in this case because the Brookses "do not allege that First Federal is liable either for allowing Mr. Brooks to deposit trust funds into his personal account or for allowing him to misuse the trust funds deposited into his personal account." 726 So. 2d at 645. I disagree.
In general, § 19-1-3 protects a bank that innocently allows a trustee to withdraw money from a trust account,[3] and § 19-1-9 protects a bank that innocently accepts deposits of trust funds into a trustee's personal account. Thus, when two different banks are involved, the Uniform Fiduciaries Act would protect each bank as follows: Section 19-1-3 would apply exclusively to "Bank A" that holds the trust account from which the moneys are withdrawn, and § 19-1-9 would apply exclusively to "Bank B" that holds the trustee's personal account into which the trust funds are deposited.[4] I cannot conclude that the Uniform Fiduciaries Act would provide less protection where the withdrawal and deposit are made at a single bank. Further, I cannot conclude that the transfers from the trust account to Mr. Brooks's personal account at the same bank can be artificially separated by the plaintiff into withdrawal and deposit components in order to exclude the application of either § 19-1-3 (relating to withdrawals) or § 19-1-9 (relating to deposits). Instead, where the same bank holds both the trust account and the trustee's personal account, as in this case, §§ 19-1-3 and 19-1-9 should be read together.
The overlapping operation of §§ 19-1-3 and 19-1-9 is clearly illustrated in Rheinberger v. First National Bank of St. Paul, 276 Minn. 194, 150 N.W.2d 37 (1967), in which a trustee wrongfully withdrew funds from a trust account in a bank and deposited those funds into his personal account at that same bank through an intrabank transfer. The Supreme Court of Minnesota held that the bank was not liable to the beneficiary under Minn. St. § 520.09, which is the equivalent of Alabama's § 19-1-9. 276 Minn. at 198, 150 N.W.2d at 40 ("In our opinion the transfer of funds by debiting the old account and crediting the new account falls within the scope of [§ 520.09]."). The court noted that the bank was also shielded from liability by Minnesota's equivalent of § 19-1-3. Id. at 201, 150 N.W.2d at 42 ("Nor was [the bank] under any duty after the transfer was completed to insure that the [trustee] did not misuse these funds. Minn. St. 520.02.").
Although only § 19-1-9 has been directly raised in this appeal, I would interpret § 19-1-9 as being in pari materia with § 19-1-3 in this intrabank-transfer case. The application of § 19-1-9 to intrabank transfers appears particularly appropriate when the basis of the plaintiff's claim is conversion of trust *647 property. When a single transfer both takes money from the trust account and places it in the trustee's personal account, it effects a conversion that is complete only upon the deposit into the personal account. Thus, § 19-1-9 is directly implicated even where the plaintiff casts his complaint so as to artificially separate the withdrawal component of the intrabank transfer from the deposit component of that same transfer. In short, exclusive application of § 19-1-3 to intrabank transfers ignores the reality of the conversion transaction, the text of § 19-1-9, and the purpose of the Uniform Fiduciaries Act.
HOOPER, C.J., concurs.
[1] Of course, if the trial court rules as a matter of law that Mr. Brooks was legally entitled to make the transfers, then it would be unnecessary to deal with the issue of wrongdoing on the part of First Federal.
[2] Of course, this conclusion does not mean that all sections of the Uniform Fiduciaries Act do not apply. For example, § 19-1-3, Ala.Code 1975, may apply to the present case; however, the application of that statute is not properly before us.
[3] Section 19-1-3 states:
"A person who in good faith pays or transfers to a fiduciary any money or other property which the fiduciary as such is authorized to receive, is not responsible for the proper application thereof by the fiduciary; and any right or title acquired from the fiduciary in consideration of such payment or transfer is not invalid in consequence of a misapplication by the fiduciary."
[4] For example, in Heffner v. Cahaba Bank & Trust Co., 523 So. 2d 113 (Ala.1988), an executrix deposited estate funds into her personal account at a bank. The funds came from a draft payable by a life insurance company, not from an estate account at the same bank into which the deposit was made. Thus, this Court properly analyzed the potential liability of the bank for withdrawals from that account under Ala.Code 1975, § 19-1-9. Unlike the deposits in Heffner, however, the moneys deposited in Mr. Brooks's personal account came from a fiduciary account held at the same bank. | December 18, 1998 |
01d84fcb-44f8-44c5-87c8-62015db11f6b | Wal-Mart Stores, Inc. v. Thompson | 726 So. 2d 651 | 1970568 | Alabama | Alabama Supreme Court | 726 So. 2d 651 (1998)
WAL-MART STORES, INC.
v.
Elizabeth THOMPSON.
1970568.
Supreme Court of Alabama.
December 18, 1998.
Bradley R. Byrne, K.W. Michael Chambers, and R. Scott Hetrick of McRight, Jackson, Myrick & Moore, L.L.C., Mobile, for appellant.
*652 William L. Utsey of Utsey, Christopher, Newton & Utsey, Butler; and Wyman O. Gilmore, Jr., Grove Hill, for appellee.
HOOPER, Chief Justice.
This is a premises liability case. The plaintiff, Elizabeth Thompson, filed an action in Clarke County, on August 15, 1994, against Wal-Mart Stores, Inc., and Sheldon Day, the manager of Wal-Mart's store in Thomasville. The complaint alleged two causes of action: (1) negligence and (2) wantonness. The defendants answered, denying Mrs. Thompson's allegations. Mrs. Thompson later amended her complaint to add another negligence claim, and the defendants filed an amended answer. On April 3, 1997, the defendants moved for a motion for summary judgment on Mrs. Thompson's wantonness claim. On April 29, 1997, Mrs. Thompson moved for an extension of time to respond to the summary judgment motion. The trial court denied the motion for summary judgment.
The case was tried to a jury on August 11, 1997. On the question of liability, Mrs. Thompson presented four witnesses: herself, John Leyenberger (by deposition), Sheldon Day (by deposition), and Allene Dannelly. On the question of damages, she presented five witnesses: Neff Weber, Dr. Roy Larrimore (by deposition), Dr. William Bridges (by deposition), Dr. Robert Allen (by deposition), and her husband. Mrs. Thompson dismissed Sheldon Day as a defendant, with prejudice. The remaining defendant, Wal-Mart, filed motions for a judgment as a matter of law on the wantonness claim and on the issues of mental-anguish damage and punitive damages. The trial court denied the motions as to the wantonness claim and the punitive-damages issue and reserved ruling on the mental-anguish issue. Wal-Mart presented three witnesses: John Leyenberger, Frances Agee, and Sheldon Day. Then it renewed its specific motions for a judgment as a matter of law, which the trial court denied. Wal-Mart admitted liability on the negligence claims. The jury returned a plaintiff's verdict, awarding $100,000 in compensatory damages on the negligence claims and $175,000 in punitive damages on the wantonness claim. Wal-Mart renewed its motions for a judgment as a matter of law and moved for a new trial. Without a hearing or entering a detailed order, the trial court denied the motions. The trial court entered a judgment on the verdict. Wal-Mart appealed on December 19, 1997.
We reverse the trial court's order denying Wal-Mart's motion for a judgment as a matter of law on the wantonness claim and on that claim we render a judgment for Wal-Mart. We affirm that portion of the judgment awarding $100,000 on the negligence claims.
On the morning of June 26, 1993, Mrs. Thompson and her friend Allene Dannelly went shopping for curtains at the Wal-Mart store in Thomasville. As she was bending over to look at the curtains, a small cubical footlocker, approximately 1 1/2- to 2-feet square fell from the "riser," the top shelf, where excess merchandise was kept.
A Wal-Mart employee, Francis Agee, was in the opposite aisle assisting another customer at the time of the accident. Ms. Agee had taken a piece of luggage down from the riser and had replaced it after the customer finished looking at it. Mrs. Thompson admitted that she does not know what caused the footlocker to fall. Neither could an eyewitness determine what caused the locker to fall from the riser.
Mrs. Thompson was taken to the hospital after the incident. She was X-rayed and was told there was nothing wrong. She received stitches to heal the cut and two regular over-the-counter medicine tablets for pain. Mrs. Thompson testified that she had a good night's sleep on the night of the accident. The following Monday she saw a general practitioner, Dr. Roy Larrimore. At the time, she was complaining of headaches. He examined her again on two separate occasions. After each examination, he decided it was not necessary to give her any more medication, nor to give her any treatment. She later decided to see a neurosurgeon, still complaining of headaches. The neurosurgeon, Dr. William Bridges, performed a CAT scan, which showed nothing unusual. From September 1993 until April 1994, Mrs. *653 Thompson did not see any doctor about the injury or any effect of the injury she claimed to have sustained at the Wal-Mart store. In April 1994, after having seen several doctors, who ran a variety of tests, with each doctor summarily concluding that she had recovered, Mrs. Thompson chose to see a neurologist, Dr. Robert Allen. On April 6, 1994, Dr. Allen gave a diagnosis of some nerve damage, for which he said he could treat her in at least eight visits. Mrs. Thompson visited Dr. Allen 15 times, and she claimed to feel relief from these treatments. The treatment involved injections of an anesthetic agent and a numbing medicine plus a steroid medicine of the cortisone type. She testified that she was never treated for depression, never had any anxiety or nervousness, and never suffered mental anguish as a result of this incident. Mrs. Thompson also testified that she had had headaches before the accident at the Wal-Mart store.
Before this accident, Wal-Mart had written safety policies concerning the placement of merchandise, including the placement of merchandise on risers. These policies were developed at the corporate level. The management of each individual store then instructed the store employees as to the safety policies. Wal-Mart's corporate headquarters issued at least 75 percent of the overall merchandise-placement policies. The individual stores have the authority to determine the layout of what Wal-Mart calls "flex" and "seasonal" merchandise. The footlocker in question was a back-to-school seasonal item. Additionally, Wal-Mart used fencing, three inch high pieces of rectangular metal, on certain shelves, to hold in certain loose merchandise, such as "Nerf" toys. The corporate policy prohibited the use of fencing on risers because it was ineffective for flat stable items stored on risers. Further, each store has a risk-control team. On a corporate level, Wal-Mart employs a team of 21 full-time safety employees who regularly travel to Wal-Mart stores for inspections to ensure that the Wal-Mart safety policies are being implemented.
Furthermore, Wal-Mart trained its employees to make sure the stacked products were stable and straight. The products were not to be within 18 inches of any sprinkler heads. In order to ensure stability, Wal-Mart also required that heavier items be in lower-shelf areas and it implemented a "bump test."
The Thomasville store maintained incident reports and did not provide these reports to corporate headquarters. According to the testimony of Sheldon Day, the manager of the Thomasville store at the time of the incident, Wal-Mart was aware of accidents that had been caused by falling merchandise. However, he added: "[T]hat's why we took action through training of our associates on the stable stacking of merchandise on risers." Wal-Mart's corporate risk-prevention department was not aware in 1992 and 1993 of any significant safety problems at the Thomasville store. Nonetheless, in Wal-Mart's answers to the plaintiff's interrogatories, it stated that 167 accidents involving falling merchandise had occurred in Wal-Mart stores in Alabama during the five years preceding Mrs. Thompson's accident. This figure represents accidents in Wal-Mart stores across the entire state; this Court has held that on questions of premises liability accidents at other locations are irrelevant. Burlington Northern R.R. v. Whitt, 575 So. 2d 1011, 1019 (Ala.1990).
The record clearly reflected that Wal-Mart had been aware of accidents involving falling merchandise, but that, because of this awareness, it had instituted many thorough safety procedures in order to ensure the safety of its customers. The evidence indicates that Wal-Mart implemented sufficient guidelines. The plaintiff asserts that these guidelines indicate awareness on Wal-Mart's part. However, using vigorous safety policies, like these Wal-Mart had in place, to support a claim of wantonness is equivalent to punishing someone for taking precautions to avoid causing injury. The standard required to support a wantonness claim is a high one and should remain such.
Wal-Mart raises three issues on appeal: (1) Whether the trial court erred in denying Wal-Mart's motions for summary judgment and its motion for a judgment as a matter of law on Mrs. Thompson's wantonness claim; *654 (2) whether the trial court erred in denying Wal-Mart's motion for a judgment as a matter of law on Mrs. Thompson's claim for mental-anguish damages, a motion based on a claim that she failed to present substantial evidence in support of that claim; and (3) whether the trial court erred in precluding Wal-Mart from presenting, as rebuttal evidence, an estimate of the total number of customers entering Wal-Mart's stores in Alabama in the three years before to Mrs. Thompson's injury.
Wal-Mart argues that the trial court erred in denying its motions for a summary judgment and later for a judgment as a matter of law on the wantonness claim. Mrs. Thompson asserts that Wal-Mart wantonly caused the footlocker to fall on her and wantonly failed to prevent it from falling on her.
This court has declined to adopt an ironclad rule that an erroneous denial of a motion for summary judgment is always rendered moot by a subsequent verdict in favor of the nonmovant, lest we encourage a party to change "testimony or other evidence based on experience gained during the proceedings on the motion for summary judgment." Superskate v. Nolen, 641 So. 2d 231, 233-34 (Ala.1994). Because we are not here confronted with a situation involving a change of testimony, we will not consider whether the defendant was in fact entitled to a summary judgment, but will consider whether at trial it was entitled to a judgment as a matter of law.
In reviewing the denial of a motion for a judgment as a matter of law, we apply this standard: "A judgment as a matter of law is proper only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ." Locklear Dodge City, Inc. v. Kimbrell, 703 So. 2d 303 (Ala.1997). Further, this Court, as the reviewing court, must view all evidence in the light most favorable to the nonmoving party. Bussey v. John Deere Co., 531 So. 2d 860 (Ala.1988).
On her wantonness claim, Mrs. Thompson had to present evidence indicating that Wal-Mart knew that a practice it was engaging in would likely or probably result in the injury allegedly suffered by Mrs. Thompson. "Wantonness" is statutorily defined as "conduct which is carried on with a reckless or conscious disregard of the rights or safety of others." Ala.Code 1975, § 6-11-20(b)(3). This Court has accepted the following definition of wantonness: "the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result." Bozeman v. Central Bank of the South, 646 So. 2d 601 (Ala.1994). Accordingly, to prove "wantonness," one need not prove intentional conduct; however, proof of wantonness still requires evidence of a reckless or conscious disregard of the rights and safety of others. This Court recognizes a distinction between negligence and wantonness.
Mrs. Thompson did not present sufficient evidence to support a finding of wantonness. Although Wal-Mart's Thomasville store had received two or three reports of falling merchandise before this accident, the management of that store had no information from which they could have known that an accident of the kind which occurred in this case was likely to happen. The evidence was not sufficient to support a finding that Wal-Mart was reckless in storing footlockers on the risers. Wal-Mart had both corporate and local safety teams, safety manuals, and safety reinforcement mechanisms. Although Wal-Mart's action in storing this merchandise could be considered negligent, its behavior was not such as to warrant a verdict of wantonness.
Wal-Mart argues that Mrs. Thompson failed to present any evidence showing that Wal-Mart committed willful or wanton conduct and the trial court therefore should have granted its motion for a judgment as a matter of law as to the wantonness claim. There was no evidence to indicate that any Wal-Mart employee "wantonly" caused the footlocker to fall. Further, there was no evidence to indicate that Wal-Mart "wantonly" failed to prevent Mrs. Thompson's injury. There was evidence indicating that Wal-Mart had enforced a plethora of safety measures in *655 order to protect employees and customers. Construing the evidence in the light most favorable to Mrs. Thompson, we cannot classify Wal-Mart's behavior as wanton. Wal-Mart asks us to reverse the trial court's denial of its motion for a judgment as a matter of law on the wantonness claim. Wal-Mart admits it was negligent. This Court must continue to uphold the distinction between negligence and wantonness. Therefore, because the trial court should have granted Wal-Mart's motion for a judgment as a matter of law as to the wantonness claim, we reverse that portion of the judgment awarding punitive damages on the jury's finding of wantonness; and as to the wantonness claim, we render a judgment for the defendant Wal-Mart.
Wal-Mart asks this court to reverse the judgment on the negligence claim insofar as it awarded damages based on the plaintiff's claims of mental anguish/emotional distress. Wal-Mart claims it was entitled to a judgment as a matter of law on any claims for damages based on mental anguish/emotional distress.
This Court has accepted this definition of "mental anguish" from Black's Law Dictionary (6th ed. 1990):
Volkswagen of America, Inc. v. Dillard, 579 So. 2d 1301, 1306 (Ala.1991).
Mrs. Thompson presented substantial evidence indicating she had suffered mental anguish as a result of the accident. As the Black's Law Dictionary definition states, mental anguish is more than mere worry or embarrassment. It is more than lost sleep. The evidence showed that Mrs. Thompson suffered a serious and painful physical injury when she was hit in the head by a footlocker that fell several feet off a tall shelf, and the evidence indicated this injury was caused by negligent conduct of the defendant. This injury required her to see various doctors on several occasions, who treated her for physical symptoms, such as head and neck pain. Viewing the evidence in the light most favorable to the plaintiff, as we are required to do, we conclude that it was sufficient for the jury to award damages to compensate the plaintiff for the mental or emotional pain and suffering that attended her injury. The trial court did not err in denying Wal-Mart's motion for a judgment a matter of law as to the claim for mental anguish damages.
Wal-Mart argues that the trial court abused its discretion by excluding Wal-Mart's evidence of the number of customers who had entered Alabama Wal-Mart stores, including the Thomasville store, and the number of transactions that had occurred at those stores. The standard applicable to a review of a trial court's rulings on the admission of evidence is determined by two fundamental principles. The first grants trial judges wide discretion to exclude or to admit evidence. "The test is that the evidence must ... shed light on the main inquiry, and not withdraw attention from the main inquiry." Atkins v. Lee, 603 So. 2d 937 (Ala.1992) (citing Ryan v. Acuff, 435 So. 2d 1244 (Ala.1983)). The second principle "is that a judgment cannot be reversed on appeal for an error unless ... it should appear that the error complained of has probably injuriously affected substantial rights of the parties." Atkins, 603 So. 2d at 941. Based on these principles, we conclude that the trial judge's evidentiary rulings do not constitute reversible error.
We reverse the trial court's judgment insofar as it awarded punitive damages on the jury's finding of wantonness, and we render a judgment for Wal-Mart on the wantonness claim. We affirm the judgment insofar as it awarded damages based on the negligence claims.
AFFIRMED IN PART; REVERSED IN PART; AND JUDGMENT RENDERED.
MADDOX, SHORES, HOUSTON, KENNEDY, COOK, and SEE, JJ., concur.
LYONS, J., recuses himself. | December 18, 1998 |
b92e8a22-1bb5-440b-a4af-9182629dba17 | James v. McKinney | 729 So. 2d 264 | 1961410, 1961639 | Alabama | Alabama Supreme Court | 729 So. 2d 264 (1998)
Fob JAMES et al.
v.
Dorothy Alice McKINNEY and the Alabama State Employees Association.
Walter Stevenson
v.
Fob James et al.
Nos. 1961410 and 1961639.
Supreme Court of Alabama.
November 20, 1998.
Rehearing Denied January 15, 1999.
*265 William P. Gray, Jr., legal advisor to the Governor; Robin G. Laurie, deputy atty. gen.; and Martin E. Burke of Balch & Bingham, L.L.P., Montgomery, for appellants/cross appellees Fob James et al.
James Allen Main of Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery; and Mark J. Williams and Linda Baker Allen, Alabama State Employees Association, Montgomery, for appellees Dorothy Alice McKinney and the Alabama State Employees Association.
KENNEDY, Justice.
These appeals concern the employment status of the "division chief" position within the Alabama Department of Economic and Community Affairs (hereinafter "ADECA") and the preclusive effect of a settlement among then Governor Jim Folsom, his personnel director, and the Alabama State Employees Association (hereinafter "ASEA").
In 1991, during Governor Guy Hunt's administration, Dorothy Alice McKinney, an employee at ADECA, was removed from her position as administrative division chief of ADECA and was assigned to another position. McKinney and the ASEA sued ADCA; the ADECA director; and Governor Hunt, requesting a judgment declaring that the position of division chief is a merit system position and an injunction requiring ADECA to staff the division chief positions with merit system employees and to reinstate McKinney to her position.
The litigation continued until 1993, when Governor Jim Folsom, the state personnel director,[1] the ADECA director, Ms. McKinney, and the ASEA entered into a settlement agreement. The settlement provided that as of October 1, 1996, the ADECA division chief positions would be merit system positions. On June 8, 1993, Judge Joseph Phelps dismissed the case with prejudice.
In September 1996, shortly before the merit system classification was to take effect, Governor Fob James and the current ADCA division chiefs sued, arguing that the settlement was not valid. McKinney and the ASEA moved to dismiss the lawsuit, arguing that the current division chiefs, who are not merit system employees, have no property interest in their positions and, therefore, no standing to bring this action. They also argued that the settlement entered into three years earlier was binding and not subject to collateral attack.
The trial court granted the motion to dismiss. In its dismissal order it wrote:
The civil service system of the state is divided by statute into the classified service, the unclassified service, and the exempt service. "Classified" civil servants attain their employment through a merit system based primarily on competitive examination. The purpose of making certain state employees subject to the merit system is to prevent discrimination in the employment, promotion, and discharge of public employees. Heck v. Hall, 238 Ala. 274, 190 So. 280 (1939). "Unclassified" and "exempt" civil servants are not subject to such examinations, and they serve at the pleasure of their appointing or electing authority. Generally those in the exempt service or the unclassified service are elected officials, officials chosen based on political patronage, and confidential employees.
The Governor and the current division chiefs argue that the language of the ADCA statute and the Merit System Act is ambiguous as to whether the position of division chief is a classified, an exempt, or an unclassified position. However, they conclude that the legislature intended for the division chiefs to be unclassified and not subject to the merit system. They argue that since the creation of ADECA, the division chiefs have been considered by ADECA officials to be in the unclassified service or the exempt service. They further argue that the settlement agreement purporting to place ADECA division chiefs in the classified service was illegal and, therefore, not binding.
We agree that the ADECA statute does not specifically place the division chiefs in either the exempt service or the "unclassified" service category, and we cannot say that the legislature intended for the division chiefs not to be subject to the merit system.
The legislature created ADECA in 1983, combining the following existing agencies and programs: the Office of State Planning and Federal Programs; the Alabama Department of Energy, the Alabama Law Enforcement Planning Agency; the Office of Highway and Traffic Safety; and the Office of Employment and Training. See § 41-23-2, Ala.Code 1975. Nowhere in the statute did the legislature specifically place division chiefs in either the exempt or the unclassified service. It is apparent that employees necessary to implement the duties of ADECA are subject to the merit system. § 41-23-2.
Section 36-26-10(b), a part of the Merit System Act, defines those officers in the exempt service. Section 36-26-10(c) defines those positions in the unclassified service. Section 36-26-10(d) states: "The classified service shall include all other officers and positions in the state service." In the definitional section of the Act, § 36-26-2, the "classified service" is defined as: "All offices or positions of trust or employment in the state service now or hereafter created except those placed in the unclassified service or exempt service by this article." Because the division chiefs were not placed in the exempt service or the unclassified service, the provisions of the Merit System Act compel us to conclude that the division chiefs are classified employees. Wyatt v. Bronner, 500 F. Supp. 817 (M.D.Ala.1980).
In Wyatt, the plaintiffs, one of whom was the deputy director, were employed by the Alabama Building Commission. From the outset of their employment, the plaintiffs were regarded as "unclassified" employees of the Commission. In fact, since 1945, the plaintiffs and the predecessors in their positions had been appointed and had worked outside the requirements of the merit system's hiring and firing procedures. Following their termination, the plaintiffs sued, alleging that they were "classified" employees under the Merit System Act and were entitled to the procedural protection afforded by the Fourteenth Amendment to the United States Constitution. The federal court held that nothing in the Merit System Act or in the act creating the Commission placed the plaintiffs in the unclassified or the exempt service. Therefore, the court held, based on § 36-26-10(d), the plaintiffs were classified employees and were therefore entitled to the type of hearing required by the Fourteenth Amendment. We agree with the federal district court's interpretation of Alabama law.
In Vaughn v. Shannon, 758 F.2d 1535 (11th Cir.1985), the United States Court of Appeals for the Eleventh Circuit held that *267 the plaintiff's job was exempt from the Merit System Act. The plaintiff, an employee of the Department of Mental Health, had relied on Wyatt in arguing that his position was "classified" and thus subject to the merit system. The plaintiff lost. The legislature, in creating the Department of Mental Health, had, by § 22-50-41, specifically left to the director of the Department the authority to determine which employee positions would be included in the merit system. Vaughn is easily distinguishable from this present case, because the legislature did not authorize the ADECA director to determine which employee positions at ADECA were subject to the merit system. Instead, the legislature made the employees of ADECA subject to the merit system.
The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature. Advertiser Co. v. Hobbie, 474 So. 2d 93 (Ala.1985). When interpreting a statute, we must consider it as a whole and must construe it reasonably so as to harmonize all of its provisions. McRae v. Security Pacific Housing Services, Inc., 628 So. 2d 429 (Ala.1993). In determining legislative intent, a court should examine related statutes. Dunn v. Alabama State University Bd. of Trustees, 628 So. 2d 519 (Ala. 1993).
The nature of the responsibilities of an ADECA division chief also leads us to conclude that the legislature intended for the position to be in the classified service. The legislature created a merit system to protect certain civil servants from being dismissed as a result of their political affiliation every time a new administration was elected. Certain other positions, as to which confidentiality or political loyalty is necessary to the continued efficiency of the office, are not subject to the merit system. However, a division chief is not a policy-maker, nor is a division chiefs political affiliation necessary for continued efficiency in the job. Cf. Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990); Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976).
An ADECA division chief is under the supervision of, and reports directly to, the director of ADECA. The division chief is not a policy-maker but, rather, implements goals and policies set by the director. Moreover, the promulgation of rules and regulations for ADECA is left solely to the director, not a division chief. § 41-23-6.
Accordingly, we conclude that the legislature intended that the ADECA division chiefs be subject to the merit system and that the settlement agreement to that effect is binding on the parties.
AFFIRMED.
ALMON and SHORES, JJ., concur.
HOUSTON and COOK, JJ., concur in the result.
HOOPER, C.J., and MADDOX and SEE, JJ., concur in part as to the rationale and dissent from the judgment.
LYONS, J., recuses himself.
HOOPER, Chief Justice (concurring in part as to the rationale and dissenting from the judgment).
I concur with Justice See. I add to his comments the observation that this judicial body is the highest judicial body of this State and that all its members have taken an oath to uphold the laws of our state. It is fundamental to a democratic society that the people's duly elected representatives enact the laws. The pivotal issue for this Court to determine is whether we will permit any Governor to undermine the laws, either by consenting to a judgment or by using any other means of changing the law that is outside the democratic processes of this State. I cannot, and will not, agree to such an undermining of the law. Clearly, the ADECA division chiefs are "unclassified" merit-system employees. To reach any other holding would appear to be contrary to the oath taken by the members of this judicial body. Such a result by-passes the lawful democratic processes of this State. Therefore, I concur with Justice See, and I reemphasize the duty of this Court to uphold the laws of this State and to maintain the integrity *268 upon which this judicial system is grounded.
SEE, Justice (concurring in part as to the rationale and dissenting from the judgment).
Although I concur with the portion of the main opinion's rationale that concludes that division chiefs of the Alabama Department of Economic and Community Affairs ("ADCA") are not "exempt" employees, I must respectfully dissent from the main opinion's conclusion that the division chiefs are "classified" merit-system employees. The Legislature has plainly provided that they are "unclassified" merit-system employees. Further, I conclude that no private settlement agreement can change a classification provided by statute.
The Legislature has divided state employment positions into three categories: (1) exempt positions; (2) unclassified merit-system positions; and (3) classified merit-system positions. "Exempt" employees or officers are generally not subject to the pay-scale, promotion, and other rules applicable to meritsystem employees. Exempt employees include:
Ala.Code 1975, § 36-26-10(b) (emphasis added.) ADECA division chiefs are not exempt employees, because they are heads of "divisions," not "departments," and they are appointed by the "director of [the] department, with the approval of the governor," not by the Governor or by a board or commission. See Ala.Code 1975, § 41-23-5(a) ("All chiefs of divisions shall be appointed by the director of [ADECA], with the approval of the governor."). In addition, § 41-23-2 provides that ADECA employees shall be "subject to the provisions of the state merit system laws." Thus, ADECA division chiefs are not exempt from the merit system, but are either "classified" or "unclassified" merit-system employees.
Unclassified merit-system employees are subject to all merit-system rules except for the protections concerning "appointment and dismissal." Ala.Code 1975, § 36-26-10(f). "Unclassified" employees include "[a]ll employees of the governor's office not exempted." Ala.Code 1975, § 36-26-10(c)(2). "Classified" employees are subject to all of the pay-scale, promotion, appointment, and termination rules of the State. "Classified" employees include "all other officers and positions in the state service." Ala.Code 1975, § 36-26-10(d) (emphasis added).
Section 41-23-1 states that ADECA is "within the office of the governor and directly under his supervision and control." Accordingly, ADECA's division chiefs are "employees of the governor's office" and are "not exempted." Thus, under § 36-26-10(c)(2), ADECA's division chiefs are clearly "unclassified" merit-system employees.
The main opinion cites Wyatt v. Bronner, 500 F. Supp. 817 (M.D.Ala.1980), for the proposition that the plaintiff employees of the Alabama Building Commission were classified merit-system employees because "nothing in the Merit System Act or in the act creating the Alabama Building Commission placed the plaintiffs in the unclassified or the exempt service." 729 So. 2d at 266. Despite the Alabama Building Commission's private listing of the employees on its payroll register as "exempt," the United States District Court for the Middle District of Alabama followed the statutory definitions in the Merit System Act and held that the plaintiffs were "classified" employees. Wyatt, 500 F. Supp. at 819-20. I agree.
Unlike the act creating the Alabama Building Commission, the act creating ADECA expressly provides that ADECA employees, who are not exempt, are "within the office of the governor and directly under his supervision and control." Ala.Code 1975, § 41-23-1. Further, the Merit System Act expressly provides that "employees of the governor's *269 office not exempted" are "unclassified" employees. Ala.Code 1975, § 36-26-10(c)(2). We must, of course, assume that the Legislature was aware of the Merit System Act's definitions of "exempt," "classified," and "unclassified" employees when it created ADCA and provided that ADECA's employees would be covered by the merit system. See Bedingfield v. Jefferson County, 527 So. 2d 1270, 1272 (Ala.1988) ("It is a fundamental principle that the legislature, in enacting a statute, is presumed to have full knowledge and information on prior and existing law on the subject of the statute."); Ala.Code 1975, § 41-23-2 (providing that "employees necessary to implement the duties and functions of [ADECA] may be employed subject to the provisions of the state merit system laws and shall be entitled to the same rights and benefits thereunder"). Therefore, this Court should apply the Merit System Act and conclude that the ADECA division chiefs are unclassified merit-system employees.
Had the Legislature intended to specify that ADECA employees would be "classified" employees, it could have done so. It did not. See Ala.Code 1975, § 41-23-2. Had the Legislature intended to amend the definition of "unclassified" and "classified" employees to treat employees such as ADECA division chiefs as "classified" employees, it could have done so. It did not. See Ala.Code 1975, § 36-26-10. Nor should this Court, whose function is to interpret law, amend the Merit System Act by creating a judicial exception to it.[2]
The main opinion states that "the settlement agreement [between the former Governor and the plaintiffs] ... is binding on the parties" to the extent it is consistent with the Merit System Act. 729 So. 2d 267. As I have demonstrated above, however, the settlement agreement is not consistent with the Merit System Act and, thus, cannot bind the State. Settlement agreements by state officers obligate state assets and state employees that are generally governed by Alabama law. To the extent such a private settlement agreement obligates state assets and employees in a manner inconsistent with state law, that agreement should be held invalid. See, e.g., Opinion of the Justices, 251 Ala. 91, 36 So. 2d 475 (1948) (stating that a lease agreement obligating the State to pay moneys for more than one year was void because the agreement would conflict with § 213 of the Constitution of Alabama of 1901, which prohibits state debts); Stokes v. Moore, 262 Ala. 59, 64, 77 So. 2d 331, 335 (1955) (holding that a contract calling for the issuance of an injunction if certain future events occur was invalid because it required the issuance of the injunction even if to issue an injunction would have been contrary to the opinion of the court).
As the main opinion points out, the United States Court of Appeals for the Eleventh Circuit held, in Vaughn v. Shannon, 758 F.2d 1535 (11th Cir.1985), that the director of the Alabama Department of Mental Health could determine whether employees of that Department were merit-system employees. Section 22-50-41 expressly provides that "[p]ersonnel policies may be established so as to include under the state merit system certain positions in the Department of Mental Health." The Eleventh Circuit determined that the Department of Mental Health had acted pursuant to the statute by internally providing that the plaintiffs were exempt employees. Vaughn, 758 F.2d at 1537.
Unlike the act that created the Department of Mental Health, the act that created ADECA does not delegate to the director of ADECA the power to determine the meritsystem classification of employees. Instead, it commands that employees hired by ADCA be employed "subject to the provisions of the state merit system laws." Ala.Code 1975, § 41-23-2.[3] The "state merit system *270 laws" clearly provide that ADECA division chiefs, who are in the Governor's office and who are not exempt department heads, are "unclassified" employees. See Ala.Code 1975, § 36-26-10(c)(2) (stating that "employees of the governor's office not exempted" are "unclassified" employees); Ala.Code 1975, § 41-23-1 (stating that ADECA is "within the office of the governor"); Ala. Code 1975, § 36-26-10(b) (stating that "exempt" employees include "heads of departments," not heads of "divisions"); Ala.Code 1975, § 41-23-5(a) (stating that ADECA division chiefs head "divisions," not "departments"). The Legislature, had it chosen to delegate the power to determine merit-system classification by private settlement agreement or otherwise, could have done so. See Ala.Code 1975, § 22-50-41 (delegating to the Department of Mental Health the power to determine the merit-system status of employees of that Department).[4] It did not.
Although the result for which the plaintiffs argue is not unreasonable, the method by which this result would be accomplished would endanger the constitutionally mandated process for making law. A private settlement agreement cannot displace statutes duly enacted by the Legislature. The concept of government by private agreement is wholly incompatible with our Constitution, which provides that the Legislature, to make law, must duly enact a bill and submit it to the Governor. Ala. Const.1901, § 61 ("No law shall be passed except by bill ...."); id. at § 125 ("Every bill which shall have passed both houses of the legislature ... shall be presented to the governor...."). To hold otherwise would invite the danger that men could enter into collusive settlement agreements for the purpose of draining the State's treasury, restricting the Governor's appointment power, or changing the composition of this Court. The Framers of our Constitution wisely preempted this possibility by dividing the legislative, executive, and judicial powers so that we may have "a government of laws and not of men." Ala. Const.1901, § 43.
HOOPER, C.J., and MADDOX, J., concur.
[1] The state personnel director had intervened as a plaintiff.
[2] As Alexander Hamilton cautioned:
"The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would be the substitution of their pleasure to that of the legislative body."
The Federalist No. 78, at 469 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
[3] Ala.Code 1975, § 41-23-6, provides that "[t]he director of [ADECA] may prescribe ... reasonable rules and regulations for the conduct of its business." This provision does not purport to delegate to the director of ADECA the power to classify employees under the merit system.
[4] I note that Ala.Code 1975, § 36-26-10(e), provides:
"Except as to services denominated as exempt or unclassified services in subsections (b) and (c) of this section, the governor shall have the power by executive order to extend the provisions of this article to include additional positions or classes of positions."
Because § 36-26-10(c)(2) plainly provides that ADECA division chiefs are "unclassified" employees, they are not subject to an extension of the Merit System Act by executive order. | November 20, 1998 |
68b66f5b-b9fe-44c8-bb61-6cdc95052b3c | Ex Parte Sparks | 730 So. 2d 113 | 1970812 | Alabama | Alabama Supreme Court | 730 So. 2d 113 (1998)
Ex parte Steven Ray SPARKS.
(Re Steven Ray Sparks v. City of Weaver).
1970812.
Supreme Court of Alabama.
November 20, 1998.
*114 John T. Kirk, Montgomery, for petitioner.
Trudie Anne Phillips, Anniston, for respondent.
ALMON, Justice.
Steven Ray Sparks was arrested in the City of Weaver, and the City charged him with driving under the influence and running a stop sign. The district court found him guilty of both charges, and he appealed to the circuit court for a trial de novo. See Ala.Code 1975, §§ 12-12-70(b) and 12-12-71.
At trial in the circuit court, the police officer who arrested Sparks testified that he had detected the odor of alcohol on Sparks and that he administered field sobriety tests to determine if he was intoxicated. The officer further testified that Sparks failed the field sobriety tests and that Sparks refused to submit to an alcohol breath test.
Sparks testified in his own defense and admitted that he had run a stop sign. However, he denied that he was driving under the influence, stating that he weighed 225 pounds and that he had drunk only three six-ounce draft beers during the two hours before his arrest. He attributed his failing the field sobriety tests to physical problems with his knees and to being unable to see because, he said, he was forced to look into bright lights on the arresting officer's patrol car while he was performing the tests. Sparks also stated that, even though he may have smelled of alcohol, he speaks with a lisp and was sunburned at the time of his arrest, and that both of these factors may have contributed to his appearing to be intoxicated. Sparks further testified that, although he had refused to submit to a breath test because he thought the machine used for that test was unclean, he specifically asked for a blood test. Sparks said that police responded to his request by telling him that a blood test could not be administered until after he had submitted to a breath test.
On cross-examination, the City's prosecutor asked Sparks if he recalled having been convicted of DUI on a previous occasion.[1] This question elicited an immediate objection from defense counsel, and the circuit court sustained the objection. Defense counsel then moved for a mistrial. After the circuit court gave the jury a corrective instruction, and after no jurors indicated that they could not disregard the prosecutor's improper question, the court denied Sparks's motion for a mistrial.
The jury convicted Sparks of both of the charges brought against him. The circuit court sentenced Sparks on the DUI conviction to 24 days in jailwith four days to be served and 20 days suspendedand ordered him to pay a $1,500 fine, plus $141 court costs. On the conviction for running a stop sign, the court fined Sparks $100 and ordered him to pay $149 court costs. The Court of Criminal Appeals affirmed Sparks's convictions with an unpublished memorandum, holding that the circuit court did not abuse its discretion by denying Sparks's motion for a mistrial. Sparks v. City of Weaver, 727 So. 2d 182 (Ala.Cr.App.1997) (table). Sparks petitioned for certiorari review, and we issued the writ of certiorari to determine whether Sparks was denied his right to a fair trial when the City's prosecutor asked him about a prior DUI conviction and the circuit *115 court subsequently denied his motion for a mistrial.
It is undisputed that the City's prosecutor deliberately asked Sparks, in the presence of the jury, about a prior DUI conviction. Furthermore, it is uncontroverted that Sparks interposed a timely objection to the prosecutor's question and also made a timely motion for a mistrial. Thus, the only question to be resolved is whether the prosecutor's improper question[2] was so prejudicial to Sparks's case that it rendered the circuit court's corrective jury instruction insufficient to ensure a fair trial. If the prosecutor's question did evoke prejudice to that degree, then the circuit court abused its discretion by not granting Sparks's motion for a mistrial and his convictions are due to be reversed.
In its brief, the City relies on numerous decisions in which the Court of Criminal Appeals has held that granting a mistrial is unnecessary under circumstances similar to those of Sparks's trial. In those cases, the Court of Criminal Appeals has reasoned that, when a prosecutor asks a defendant about a prior arrest or conviction, and the question is objected to and the circuit court sustains the objection, a corrective instruction admonishing the jury to disregard the prosecutor's improper question is sufficient to eradicate any prejudice to the defendant's case and a mistrial is unwarranted. See, e.g., Breedlove v. State, 482 So. 2d 1277 (Ala.Crim.App.1985); Walker v. State, 428 So. 2d 139 (Ala.Crim. App.1982); Carter v. State, 405 So. 2d 957 (Ala.Crim.App.), cert. denied, 405 So. 2d 962 (Ala.1981); Favor v. State, 389 So. 2d 556 (Ala.Crim.App.1980).
However, notwithstanding the cases cited by the City, this Court cannot condone a prosecutor's attempt to elicit testimony about a defendant's prior convictions in violation of the general exclusionary rule against such evidence. See Ex parte Tucker, 474 So. 2d 134 (Ala.1985); Ex parte Arthur, 472 So. 2d 665 (Ala.1985); Ex parte Cofer, 440 So. 2d 1121 (Ala.1983); Hinton v. State, 280 Ala. 48, 189 So. 2d 849 (1966); Ala. R. Evid. 404(b); C. Gamble, McElroy's Alabama Evidence, § 27.02 (5th ed.1996). Moreover, reported cases involving such improper questioning and a subsequent denial of the defendant's motion for a mistrialare all too common, as demonstrated by the number of such cases cited in the City's brief and in the Court of Criminal Appeals' memorandum affirming Sparks's convictions. Consequently, it appears to this Court that the current approach to these situations is inadequate insofar as it allows prosecutors a "free shot" at asking an improper question about a defendant's prior criminal record while providing little means to protect the defendant's right to a fair trial other than a mere corrective instruction to jurors, which is administered only after the defendant has been exposed to the prejudice caused by the prosecutor's questioning.
Given the highly prejudicial nature of evidence of a defendant's prior arrests and convictions, especially when the defendant is questioned about having previously been convicted of the same offense for which he is then being tried, it is difficult to expect that a jury could, even in all earnestness, completely disregard the prosecutor's improper questioning in reaching its verdict. There are some errors that simply cannot be corrected with a mere corrective instruction to the jury:
Quinlivan v. State, 579 So. 2d 1386, 1389 (Ala.Crim.App.), writ quashed, 596 So. 2d 658 (Ala.1991) (quoting United States v. Garza, 608 F.2d 659, 666 (5th Cir.1979)). The prosecutor's improper questioning in Sparks's case squarely falls into this category of errors that cannot be rectified by simply instructing the jurors to disregard the prejudice that has already been inflicted.
The City presented evidence to support its DUI charge against Sparks. Nonetheless, a conviction on the DUI charge was by no means a certainty, because in his defense Sparks presented evidence that, if believed by the jury, could have established a reasonable doubt as to his guilt on the DUI charge. Consequently, the prosecutor's improperly questioning Sparks about his previously having been convicted of DUI resulted in substantial prejudice to his defense. Because this prejudice could not be eradicated by a mere corrective instruction to the jury, the circuit court should have granted Sparks's motion for a mistrial. However, we reverse only the conviction on the DUI charge, because Sparks admitted that he had run the stop sign. The prosecutor's improper reference to the former DUI conviction could not have prejudiced Sparks on the charge of running the stop sign, because he admitted committing the act that constitutes that offense, and no issue of intent or degree of culpability was presented.
The judgment of the Court of Criminal Appeals is affirmed as to the conviction for running a stop sign and reversed as to the conviction for driving under the influence of alcohol, and the cause is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HOOPER, C.J., and SHORES, KENNEDY, and LYONS, JJ., concur.
COOK, J., concurs specially.
SEE, J., concurs in part and concurs in the result in part.
MADDOX, J., dissents.
COOK, Justice (concurring specially).
I concur in the main opinion, and I write specially to address two additional points of concern: 1) Rule 609, Ala. R. Evid., clearly prevented the prosecutor from asking Sparks if he had been previously convicted of misdemeanor DUI. The prosecutor either knew or should have known that Sparks's previous DUI conviction was a misdemeanor. 2) The improper question inquired into whether Sparks had been convicted of the very same offense for which he was being tried.
I recognize that trial judges commonly cure improper prejudicial questions in the same manner the capable trial judge employed in this case, that is, by a query to the jurors, or a colloquy with them, to determine if they can disregard the improper evidence during their deliberations. By concurring in this case, I am not adopting the position that this procedure is no longer a proper means for addressing this problem. However, because, under the facts of this case, the question was so prejudicial, I agree that Sparks is entitled to a new trial.
SEE, Justice (concurring in part; concurring in the result in part).
I concur with the majority's affirmance of Steven Ray Sparks's conviction for running a stop sign. I concur in the result reached by the majority in reversing Sparks's conviction for driving under the influence ("DUI"). The prosecutor asked Sparks about a prior DUI conviction during Sparks's trial for the current DUI offense. I write separately to explain that a mistrial is not necessarily required in every DUI case in which a prosecutor inquires about a prior offense, but only in those cases where the particular facts indicate an egregious prejudice to the defendant.
After the prosecutor asked Sparks about a prior misdemeanor DUI charge to which Sparks had pleaded guilty, Sparks's counsel objected. The trial court properly sustained the objection. The trial court also instructed the jury to disregard the prosecutor's question. Sparks moved for a mistrial, claiming *117 he had been unfairly prejudiced by the impact of the prosecutor's question on his defense. The trial court denied that motion.
A mistrial is an extreme measure that should be taken only when the prejudice cannot be eradicated by instructions or other curative actions of the trial court. Nix v. State, 370 So. 2d 1115, 1117 (Ala.Crim.App.), cert. denied, 370 So. 2d 1119 (Ala.1979). If an error can be effectively cured by an instruction, a mistrial is too drastic a remedy and is properly denied. Thompson v. State, 503 So. 2d 871, 877 (Ala.Crim.App.1986). "[T]he grant or denial of a ... mistrial is a matter within the sound discretion of the trial court [and] will only be disturbed upon a showing of manifest abuse...." Durden v. State, 394 So. 2d 967, 972 (Ala.Crim.App.1980), writ quashed, 394 So. 2d 977 (Ala.1981).
Although generally a trial court's immediate instruction to the jury to disregard an improper prosecutorial question will cure any potential prejudice, Thompson v. State, 503 So. 2d at 877, the question objected to in this case was so prejudicial that the prejudice could not be erased by an instruction. The linchpin of Sparks's defense to the DUI charge was his assertion that his appearing to be under the influence of alcohol was caused by factors other than intoxication. Sparks testified on direct examination that he failed several field sobriety tests because of physical problems with his knees and because the headlights of the patrol car made it difficult for him to see. Sparks also attributed his appearance of intoxication to a lisp and to sunburn. On cross-examination, the prosecutor effectively dispensed with Sparks's DUI defense by asking about Sparks's prior DUI conviction. This question unmistakably impressed upon the minds of the jurors that Sparks's assertion that he had not been intoxicated was not credible.[3] Under these particular circumstances, a mere curative instruction could not effectively eliminate the prejudice to Sparks. Thus, the trial court abused its discretion when it denied Sparks's motion for a mistrial. Durden, 394 So. 2d at 972; Nix, 370 So. 2d at 1117.
[1] The record indicates that Sparks had been charged with DUI in January 1993. He subsequently pleaded guilty to the charge.
[2] The record reflects that the prosecutor defended her question to Sparks by calling the circuit court's attention to Ala. R. Evid. 609(a)(1)(B), which states:
"[E]vidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the accused...."
However, the term "such a crime," as used in Rule 609(a)(1)(B) refers to the categories of crimes set out in Rule 609(a)(1)(A), which states:
"[E]vidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted...."
Because Sparks could not have been punished by death or by imprisonment for more than a year for his prior DUI offense, his being impeached by questioning about that offense was clearly not allowed under any part of Rule 609 and the prosecutor's question was therefore improper.
[3] Rule 609, Ala. R. Evid., governs the impeachment of a witness by evidence of the witness's prior criminal convictions. Rule 609 states in pertinent part:
"(a) General Rule. For the purpose of attacking the credibility of a witness,
"(1)(A) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and
"(1)(B) evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
"(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment."
(Emphasis added.) Thus, Rule 609 limits impeachment concerning prior criminal convictions to evidence of crimes that either were felonies when they were committed or involved dishonesty or false statements. Because Sparks's prior DUI conviction was a misdemeanor and did not involve either dishonesty or false statements, the prosecutor's question was clearly improper. | November 20, 1998 |
4e7def57-9314-425a-be86-46c112b31112 | Mashner v. Pennington | 729 So. 2d 262 | 1970738 | Alabama | Alabama Supreme Court | 729 So. 2d 262 (1998)
Dr. Melvin MASHNER
v.
W. Fred PENNINGTON, Jr.
No. 1970738.
Supreme Court of Alabama.
November 20, 1998.
Mark A. Newell and Susan Gunnells Smith of Janecky, Newell, Potts, Wilson, Smith & Masterson, Mobile, for appellant.
Harold A. Koons III of Ball & Koons, Bay Minette, for appellee.
KENNEDY, Justice.
On February 3, 1997, W. Fred Pennington, Jr., sued Dr. Melvin Mashner, a chiropractor, alleging the tort of outrage and breach of an implied contract.
Between February and June 1994, Pennington, his wife, their daughter, and their son went to Dr. Mashner for chiropractic adjustments. Before that time, Pennington and his wife had had difficulties in their marriage because of his wife's severe back injuries, which interfered with their sexual relations. Pennington and his wife told Dr. Mashner of their difficulties.
Subsequently, Dr. Mashner began an affair with Mr. Pennington's wife, which lasted from 1994 to March 2, 1996, when the Penningtons divorced. Mr. Pennington alleges that Dr. Mashner charged him for chiropractic services rendered for Mr. Pennington's wife, when his wife and Dr. Mashner were actually conducting an affair in Dr. Mashner's office.
Dr. Mashner filed his answer, specially averring that the Alabama Medical Liability Act applied in this case. The trial court held that the Act was not applicable. Dr. Masher petitioned this Court for a writ of mandamus, arguing that the Act applied and asking for an order directing the trial judge to apply it. We treated the mandamus petition as a petition for permission to appeal (see Rule 5, Ala. R.App. P.), and we granted that permission.
Effective May 17, 1996, the legislature "supplemented" the Medical Liability Act (see § 6-5-549.1(d)) to include licensed chiropractors as "health care providers," as that term is used in the Act. See, generally, § 6-5-549.1, Ala.Code 1975.
Section § 6-5-549.1(c) states:
(Emphasis added.)
Subsection (e) of 6-5-549.1 provides that "This section and Sections 6-5-548 and 6-5-549 apply to all actions pending against health care providers at the time of the effective date of the sections."
Clearly, the legislature expressly excluded chiropractors and chiropractic professional associations from the operation of that section of the supplement that informs a court how and when the Medical Liability Act is to be applied to pending actions against chiropractors.
Dr. Mashner argues that because Mr. Pennington's lawsuit was not pending, i.e., had not been filed, when the "supplement" was adopted, the Medical Liability Act applies. Mr. Pennington argues that as to chiropractors the Medical Liability Act applies only to actions based on causes of action that "accrued" after the effective date of the supplement. It is undisputed that this action had not been filed at the time the supplement became effective. It is also undisputed that the cause of action underlying this lawsuit had accrued before the date on which the supplement became effective.
We agree with Dr. Mashner that the legislature intended to make the Medical Liability Act applicable to all cases filed against chiropractors after the effective date of the supplement, regardless of when the cause of action accrued. The language in the supplement excepting "pending" actions against chiropractors does not change the supplement's application to cases that had yet to be filed.
In Ex parte Huntsville Hospital, 540 So. 2d 1344 (Ala.1988), the issue was whether the general forum non conveniens statute (§ 6-3-21.1) applied or whether the forum non conveniens provision of the Medical Liability Act (§ 6-5-546) applied in that particular malpractice case. Both statutes were part of the "Tort Reform" package of 1987 and became effective on the same day. The general forum non conveniens statute did not apply to any action "pending," i.e., filed, before the statute became effective on June 11, 1987. The legislature expressly stated in the Medical Liability Act of 1987 that the forum non conveniens provision applied to all malpractice causes of action "accruing" after June 11, 1987. In Huntsville Hospital, the cause of action had accrued prior to June 11, 1987, but the action had not been filed by that date. We held that because the malpractice cause of action had accrued before June 11, 1987, and because the Medical Liability Act specifically stated that its forum non conveniens provision applied to causes of action accruing after June 11, 1987, the general forum non conveniens statute applied.
Applying the logic of Huntsville Hospital to this present case, we conclude that the legislature intended for actions pending against chiropractors, i.e., those pending on the effective date of the "supplement" (because chiropractors were originally excluded from the Medical Liability Act of 1987), to be exempt from the application of the Medical Liability Act. However, those actions not yet filed were to be subject to the Act if the injury accrued after June 11, 1987, Ala.Code 1975, § 6-5-552.
Accordingly, we reverse the order holding that the Alabama Medical Liability Act did not apply to Mr. Pennington's claim, and we remand the action.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, and LYONS, JJ., concur.
SHORES, J., concurs specially.
SHORES, Justice (concurring specially).
I agree with the majority's holding that § 6-5-549.1, Ala.Code 1975, which included licensed chiropractors within the definition of "health care provider" in the Medical Liability Act (the "Act"), applies to actions filed after May 17, 1996, the effective date of that section. Thus, the Act would apply to a medical malpractice action against a chiropractor that was filed after May 17, 1996. I write specially, however, to note that it is not really clear whether the facts of this case present a medical malpractice cause of action at all.
The Act applies only to medical malpractice actions; however, a plaintiff cannot avoid application of the Act by the use of creative pleadingit is the substance of the action, rather than the form, that is the touchstone *264 for determining whether an action is actually one alleging medical malpractice. Allred v. Shirley, 598 So. 2d 1347 (Ala.1992); Benefield v. F. Hood Craddock Clinic, 456 So. 2d 52 (Ala.1984); Sellers v. Edwards, 289 Ala. 2, 265 So. 2d 438 (1972). Mr. Pennington, however, is not complaining that Dr. Mashner's actions or omissions in treating his wife caused her to suffer or aggravated any injury. Compare Allred, Benefield, supra; Bowlin Horn v. Citizens Hospital, 425 So. 2d 1065 (Ala.1982). Indeed, Mr. Pennington seems to acknowledge that Dr. Mashner cured his wife's back injuries all too well. The gravamen of Mr. Pennington's breach-of-implied contract claim and his tort-of-outrage claim seems to be, rather, that he was billed for, and paid for, appointments for chiropractic services for his wife that he alleges Dr. Mashner never rendered, because, he says, Dr. Mashner and Mr. Pennington's wife were conducting a sexual affair during the appointments. I simply question whether such claims truly present a cause of action for medical malpractice. However, the trial court did not specifically address this issue, and the parties did not argue it in their briefs to this Court. Accordingly, we need not decide this issue at this stage of the proceedings. | November 20, 1998 |
2aea2c53-6acf-40f2-b1d6-b2d74589671b | SELCO, SRL v. Webb | 727 So. 2d 796 | 1971645 | Alabama | Alabama Supreme Court | 727 So. 2d 796 (1998)
SELCO, S.R.L.; B.S.A., Inc.; and Biesse America, Inc.
v.
Wesley WEBB.
1971645.
Supreme Court of Alabama.
December 23, 1998.
*797 Stanley A. Cash and John D. Herndon of Huie, Fernambucq & Stewart, L.L.P., Birmingham, for appellants.
Ralph Bohanan, Jr., of Pittman, Hooks, Dutton & Hollis, P.C., Birmingham, for appellee.
HOUSTON, Justice.
Wesley Webb,[1] while employed and working as a saw operator at Jimson Manufacturing Company in Haleyville, caught his leg in a saw and was injured. On August 25, 1997, Webb sued Selco, S.R.L., an Italian company, and B.S.A., Inc., asserting various products-liability claims against each of them as the designer, manufacturer, seller, and/or distributor of the saw, which he alleged was defective. Webb requested that B.S.A. be served by certified mail in care of G. Trimbell at 3500 Tryclan Drive, Charlotte, North Carolina 28217, and that Selco be served by certified mail in care of B.S.A., Inc., at that same address. The summons and complaint were returned to the clerk's office as "undeliverable." Alias summonses were issued on November 20, 1997, to serve B.S.A. and Selco in care of Fabio Burattini at 4110 Meadow Oak Drive, Charlotte, North Carolina 28208. On November 24, 1997, Rosanna Santoscoy, a receptionist at an office of Biesse America, Inc., signed the "Domestic Return Receipts" acknowledging delivery of the alias summonses.
On February 6, 1998, Webb moved for entry of default judgments against B.S.A. and Selco, because they had failed to file any pleading or to otherwise defend the lawsuit. On March 18, 1998, the trial court entered a default against B.S.A. and Selco, with leave for Webb to prove damages within 30 days. On April 28, 1998, Webb served on Selco and B.S.A. notice of the hearing to prove damages; the notice was sent to be delivered in care of Fabio Burattini, at the Meadow Oak Drive address in Charlotte, North Carolina. On May 7, 1998, the trial court awarded Webb $250,000 for negligence and $150,000 for wantonness "separately and severally, totalling damages of $400,000" against B.S.A. and Selco; therefore, the default judgment became final on May 7, 1998. Rule 55(c), Ala.R.Civ.P.; Maddox v. Hunt, 281 Ala. 335, 202 So. 2d 543 (1967). The order stated that copies of the order were to be mailed to Selco and B.S.A. in care of Fabio Burattini.
On May 18, 1998, Selco moved to set aside the default judgment against it and B.S.A. and to quash service against them, pursuant to Rule 55(c), Ala.R.Civ.P., or, in the alternative, Rule 60(b), Ala.R.Civ.P. In that motion, Selco argued that the default judgment entered against it was "void due to the failure of [Webb] to obtain proper service of process in conformance with the Alabama Rules of Civil Procedure and pursuant to the requirements of the Hague Convention Treaty" and that the default judgment entered against B.S.A. was void, and stating that "based on `[Selco's] information and belief `B.S.A. Inc.' is not a viable entity." Also, in the motion, Selco identified Fabio Burattini (the individual to whom the alias summonses were addressed) as the general manger of Biesse America, Inc., and it identified Rosanna Santoscoy (the person who had accepted the certified-mail packages) as Biesse America's receptionist. In its motion, Selco also stated that it had a meritorious defense to Webb's claims, that Webb would not be unduly prejudiced by setting aside the default, and that the default was not due to any culpable conduct on its part. On May 22, 1998, Selco filed a supporting memorandum brief with attached affidavits from Rosanna Santoscoy and Tito Mazzetta.
In her affidavit, Santoscoy stated that she was employed as a receptionist by Biesse America, Inc., in Charlotte, North Carolina; that on November 24, 1997, she had accepted delivery of the two certified-mail packages "because they were addressed to: c/o Fabio Burattini"; that the address provided on the certified-mail receipts was the proper address for Biesse America and not for Selco or for B.S.A.; that she was not aware of any legal entity known as B.S.A., Inc.; that she *798 was not authorized to accept service of process for either Selco or B.S.A.; and that she had forwarded the packages to Fabio Burattini, who was the general manager of her employer, Biesse America.
In his affidavit, Mazzetta identified himself as corporate counsel for Biesse America and Selco. He stated that Selco was an Italian company that produced saws and that Italy was a member of the Hague Convention; that neither Selco nor Biesse America was affiliated with an entity known as B.S.A and that neither Biesse America nor Selco was aware of an entity known as B.S.A. Mazzetta confirmed that Rosanna Santoscoy was not the registered agent for Biesse America, Selco, or an entity known as B.S.A., and that she was not authorized to accept service for Selco. Mazzetta further stated that, in November 1997, Fabio Burattini was not Selco's registered agent and was not authorized to accept service for Selco. According to Mazzetta, the address provided on the certified-mail return receipts addressed to Selco, S.R.L., and an entity known as B.S.A., Inc., was the proper address for Biesse America and not for Selco or B.S.A.
Webb responded to the motion to set aside the default judgment and to quash service by arguing, for the first time, that Biesse America had been properly served, claiming that it was served by certified mail, at its principal place of business, at the proper address, and that the individual named in the summons, Fabio Burattini, was listed with the secretary of state as the agent for service. According to Webb, although Biesse America was incorrectly named as "B.S.A.," the terms "B.S.A." and "Biesse" are phonetically pronounced the same, and the name "B.S.A." was given as the proper name during telephone conversations that an investigator for the law firm representing Webb had had with various persons when the investigator was trying to determine who was the distributor of Selco saws. Also, according to Webb, Biesse America was the American distributor for products manufactured by Selco and the allegations in the complaint clearly indicated that he was injured while working with a saw manufactured by Selco and distributed by "B.S.A." Therefore, asserted Webb, Biesse America was on notice that it was the party he had intended to sue. Attached to his response were the affidavits of Kenny Byrd, an investigator employed by Webb's law firm, and Ralph Bohannon, Jr., Webb's attorney of record.
In his affidavit, Bohannon stated that on May 6, 1998 (almost two months after the entry of the default but one day before the entry of the judgment awarding damages), he spoke with Mazzetta, corporate counsel for Selco and Biesse America: He said that in that conversation Mazzetta acknowledged that he was aware of the summons and complaint and indicated that he had forwarded them to Biesse America's insurance carrier.
In his affidavit, Byrd stated that, after making several telephone calls to various saw distributors, he determined that Biesse America was the United States distributor for Selco, S.R.L. and that its place of business was located in North Carolina; that he was advised by the North Carolina secretary of state that Fabio Burattini was the registered agent for Biesse America or "B.S. America"; and that he was given the 4110 Meadow Oak Drive address. Byrd also stated that he called the telephone numbers for "Biesse's" parts and sales department and was told that the company's name was "B.S.A., Inc."
On June 18, 1998, Selco and Biesse America moved to strike the affidavits of Bohannon and Byrd, arguing that "the substantive testimony in the affidavits [was] based on hearsay."
Also on June 18, 1998, pursuant to Rule 60(b), Biesse America moved to set aside the default judgment and to quash service on "B.S.A., Inc.," arguing that the complaint did not describe or identify the saw in any fashion; that the only named defendants in the complaint were B.S.A., Inc., and Selco, S.R.L.; and that Biesse America was not a named defendant. It also argued that Rosanna Santoscoy, the receptionist for Biesse America who had signed the receipt for the service on Selco and B.S.A, was not an employee of B.S.A. and was not the registered agent for Biesse America. According to Biesse America, Webb had, before November 20, 1997, learned from various saw distributors *799 and the North Carolina secretary of state that Biesse America was the distributor of Selco saws, but did not amend the complaint to properly substitute the correct name. Thus, argued Biesse America, the complaint did not give sufficient notice to Biesse America that it was the intended defendant and the mere use of the address was not sufficient; therefore, it would violate the guaranty of due process, Biesse America said, to allow service of a complaint against B.S.A., on a receptionist of Biesse America, to be taken as service on Biesse America.
On June 18, 1998, Selco, B.S.A., and Biesse appealed. On July 19, 1998, Biesse America filed with the trial court a "statement of evidence" of the hearing held on May 7, 1998. On August 4, 1998, the trial court approved the statement of evidence.
We note that the trial court had not ruled on the post-judgment motions before the appeal was filed.
According to Rule 4(a)(5), Ala.R.App. P., an appeal filed after the entry of a judgment but before the disposition of a post-judgment motion filed pursuant to Rule 55, Ala.R.Civ.P., shall be held in abeyance until the post-judgment motion is ruled upon. Selco's Rule 55 motion was filed on May 18, 1998, but had not been ruled on when Selco filed its notice of appeal on June 18, 1998. Because the court never entered a ruling, the motion was deemed to be denied by operation of law on August 16, 1998. See Rule 59.1, Ala.R.Civ.P. Therefore, the appeal filed on behalf of Selco and B.S.A. is deemed to have been effective on August 16, 1998, and our review as it relates to that appeal is a review of the trial court's denial of Selco's motion to set aside the default judgment. Biesse America's Rule 60(b) motion was filed on June 18, 1998, and the trial court had not ruled on that motion before Biesse filed its notice of appeal on the same day. However, a Rule 60(b) motion does not affect the time a judgment becomes final and it does not suspend the operation of the judgment. Therefore, Biesse America had no alternative but to file an appeal on June 18, 1998. Our review on appeal as it relates to Biesse America's appeal is a review of the default judgment against B.S.A.
There is no dispute between the parties that, as far as they are concerned, there is no legal entity known as "B.S.A." Therefore, we conclude that B.S.A. has no standing to appeal.
Selco contends that Webb failed to perfect proper service on it. Selco is an Italian company that produces saws, and Italy is a member of the Hague Convention. Service of process on corporations of foreign countries that are members of the Hague Convention, such as Selco, must be perfected according to the terms of the Hague Convention Treaty.[2] "[A] convention, such as the Hague Convention, `has the status of a treaty and consequently is the supreme law of the land.'" Ex parte Volkswagenwerk Aktiengesellschaft, 443 So. 2d 880, 882 (Ala.1983), quoting American Trust Co. v. Smyth, 247 F.2d 149, 153 (9th Cir.1957).
If service of process is not perfected according to the terms of the Hague Convention, the service is void.
Rivers v. Stihl, Inc., 434 So. 2d 766, 769 (Ala. 1983) (holding that service was not perfected on the defendant German corporation because the plaintiff had failed to strictly comply with the service-of-process requirements of the Hague Convention).[3] The Hague Convention *800 provides that each state is to designate a central authority to receive requests of service of documents. (Article 2.) Requests for service (which must conform to a model annexed to the Convention) should be sent, along with the documents in question, by the judicial officer of the state in which the documents originate to the designated central authority of the country in which the recipient is located. (Article 3.) When it receives a request, the central authority is to arrange service according to its internal laws. (Article 5.) Once service is perfected, the central authority must forward a certificate to that effect to the applicant. (Article 6.) If the request is insufficient for some reason, the central authority returns it and the unserved documents, along with a statement of its objections, to the applicant. (Article 4.) Rivers v. Stihl, 434 So. 2d at 769.
Webb's attempts to serve the summons and complaint on Selco did not follow the procedures outlined in the Hague Convention; therefore, service was not perfected. Rivers, at 770. When service is not proper, a judgment based on that service is void and must be set aside. See, e.g., Ex parte Pate, 673 So. 2d 427 (Ala.1995).
Because service of process on Selco was not perfected, the default judgment against Selco is void. The trial court erred in failing to set aside that judgment.
Biesse America argues that any judgment entered against it is void because of a lack of jurisdiction. It argues that the complaint did not name it as a defendant and that because B.S.A. was not a legal entity or an assumed name or a trade name for Biesse America, see, e.g., Ex parte CTF Hotel Management Corp., 719 So. 2d 205 (Ala.1998); and Hughes v. Cox, 601 So. 2d 465 (Ala.1992), it had no notice that it was an intended defendant.
A plaintiff must properly name a defendant in order to properly sue that defendant. Ex parte Pate, supra, 673 So. 2d at 429; Cofield v. McDonald's Corp., 514 So. 2d 953 (Ala.1987). The trial court lacked jurisdiction to impose liability on Biesse America; therefore, the default judgment against "B.S.A." which was not an assumed name or trade name for Biesse America, did not impose liability on Biesse America. Biesse America, not being a party to this action has no right to appeal, and its attempt to appeal is void.
The judgment of the circuit court does not relate to Biesse America; thus, insofar as this appeal relates to Biesse America, it is dismissed. It appears that in this case there is in fact no entity named B.S.A., Inc.; thus, insofar as this appeal purports to relate to an entity named B.S.A., Inc., it is dismissed. Insofar as the judgment of the circuit court relates to Selco, S.R.L., that judgment is reversed and the cause is remanded.
APPEAL DISMISSED AS TO BIESSE AMERICA AND B.S.A., INC.; JUDGMENT REVERSED AS TO SELCO, S.R.L., AND CAUSE REMANDED.
HOOPER, C.J., and MADDOX, ALMON, SHORES, KENNEDY, SEE, and LYONS, JJ., concur.
COOK, J., concurs in the result.
[1] In various documents before this Court, including the notice of appeal, the cover page of the record, and portions of the briefs on appeal, Wesley Webb is named as Wayne Webb.
[2] The "Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of November 15, 1965."
[3] In Rivers, although the plaintiff sought service of process on the defendant foreign corporation through the Hague Convention, he failed to complete two copies of a request form in English to accompany the documents to be served, as required by the Hague Convention. Therefore, the Court held, "since the procedure outlined in the Hague Convention was not followed, service of process was not perfected." 434 So. 2d at 770. | December 23, 1998 |
46914004-68d7-4c98-97b9-318316d75151 | Ex Parte Clarke | 728 So. 2d 135 | 1970242 | Alabama | Alabama Supreme Court | 728 So. 2d 135 (1998)
Ex parte Patricia CLARKE, individually and as executrix of the estate of Stanley Clarke, deceased
(Re Patricia Clarke, individually and as executrix of the estate of Stanley Clarke, deceased v. Allstate Insurance Company et al.)
1970242.
Supreme Court of Alabama.
December 11, 1998.
*136 Joseph C. Sullivan, Jr., and David A. Boyett III of Hamilton, Butler, Riddick, Tarlton & Sullivan, P.C., Mobile, for petitioner.
Louis Braswell of Hand Arendall, L.L.C., Mobile, for respondents Allstate Ins. Co., Wesley Mayfield, and Tommy Land.
ALMON, Justice.
The principal questions presented by this certiorari review are whether a purported endorsement was properly made a part of the plaintiffs' insurance policy; whether the summary judgment for the defendant insurer could properly be based on the insurer's arguments that the plaintiffs had breached their duty to cooperate with the insurer; and whether the plaintiffs supported their allegations that the insurer's requests were part of a "plan or scheme to intimidate or discourage insureds from pursuing legitimate claims by requiring insureds who filed a claim to submit to examination under oath by [the insurer's] attorneys and/or to produce or release extensive personal and financial information which had no relevance to the claim."
Stanley Clarke and his wife Patricia Clarke commenced this action against Allstate Insurance Company, alleging that Allstate had breached its contract with them and had acted tortiously by requiring them to submit to an examination under oath and to produce extensive personal and financial records as a prerequisite to Allstate's paying an insurance claim submitted by the Clarkes. The Clarkes also named as defendants Wesley Mayfield, the Allstate agent who had sold them their automobile insurance policy, and Tommy Land, the Allstate adjuster who investigated their claim. We shall refer to the defendants collectively as "Allstate." Stanley Clarke died after he and his wife had filed their complaint. Subsequently, Patricia, as the executrix of his estate, was substituted for him as a plaintiff.
The circuit court granted Allstate's motion for a summary judgment as to all claims. The Court of Civil Appeals affirmed the summary judgment, without an opinion. Clarke v. Allstate Ins. Co., 723 So. 2d 118 (Ala.Civ. App.1997) (table). Mrs. Clarke petitioned for certiorari review. We issued the writ to determine whether the affirmance by the Court of Civil Appeals conflicts with earlier decisions of this Court.
In July 1995, the Clarkes reported to police that their 1987 Chevrolet Blazer had been stolen. They filed a proof of loss with Allstate, their automobile insurer. A few weeks later, Patricia Clarke informed police and Allstate that she had found the Blazer in the parking lot of a Mobile apartment complex. The Clarkes filed with Allstate a second proof-of-loss form, claiming that their Blazer had been damaged during the time that it was allegedly stolen.
*137 Tommy Land, an Allstate adjuster, inspected the Clarkes' Blazer after it was recovered. In his deposition, he stated that the locks on the Blazer had not been broken and that none of the vehicle's electrical wires had been cut. Also, a police report indicated that the driver-side window on the Blazer had been broken from the inside. On the basis of these facts, Land concluded that whoever had taken the Blazer had done so with a key.
On September 14, 1995, Allstate, acting through one of its attorneys, mailed the Clarkes a letter informing them that, because of "the nature and circumstances of [their] loss," they were "requested ... to appear before [the attorney at a stated day and time] for the purpose of giving oral testimony under oath." Allstate requested that the Clarkes bring with them the following documents:
The letter represented to the Clarkes that their insurance policy included this provision:
The Clarkes did not appear for the scheduled oral examination. Allstate rescheduled the examination twice, but the Clarkes did not appear on either of the two later dates that Allstate selected. On October 18, 1995, Land mailed the Clarkes a letter informing them that Allstate assumed that they were not interested in pursuing their claim, because they had not submitted to an examination under oath. He enclosed with the letter a release document, and he asked the Clarkes to execute and return that document if they were indeed no longer interested in pursuing their claim. In the alternative, Land asked the Clarkes to contact Allstate to arrange another time for an oral examination. Like the previous letter from Allstate's attorney, Land's letter represented to the Clarkes that their policy provided:
Again, the Clarkes did not reply to Allstate's correspondence, and Allstate did not pay the Clarkes' claim. On October 27, 1995, the Clarkes initiated this action. In their complaint, the Clarkes alleged that Allstate had breached its contract with them and had committed the torts of bad-faith failure to pay a claim, fraudulent misrepresentation, suppression, and the tort of outrage. Moreover, the Clarkes alleged that the defendants had engaged in a civil conspiracy against numerous Allstate policyholders, including the Clarkes.
We have no indication that Mrs. Clarke argued to the Court of Civil Appeals that the summary judgment was erroneous as to the bad-faith, outrage, and conspiracy claims. Her certiorari petition raises no issue regarding the affirmance of the judgment as to those claims, and she makes no argument in her brief for a reversal as to those claims. Therefore, the judgment will be affirmed as to the bad-faith, outrage, and conspiracy claims.
In support of its motion for a summary judgment, Allstate submitted the affidavit of Noble Tinnea, an Allstate staff claims analyst. Tinnea attached to his affidavit an exhibit he stated was "a true and correct copy of the complete declaration page, policy jacket, and endorsements that were effective from July 25, 1995 through January 25, 1996, for Allstate Automobile Policy No. XXXXXXXXX, issued to Patricia and Stanley Clarke." Included in that exhibit is an endorsement, designated AU1372-7. The Clarkes' policy had been in effect since 1987, apparently with semiannual renewals. Allstate asserts that endorsement AU1372-7 was added to their policy in 1992. That endorsement provides:
*139 (Emphasis added.) The declarations page that is part of the exhibit to Tinnea's affidavit references endorsement AU1372-7 as being part of the Clarkes' policy.
Relying on this alleged endorsement, Allstate argued that, because the Clarkes had refused to submit to an examination under oath, they had failed to comply with their insurance policy's prerequisites for filing a claim for damage to their Blazer and had failed to cooperate with Allstate in its processing of the claim. Thus, Allstate contended, the Clarkes could not assert a breach-of-contract claim because they had not complied with all the provisions of their insurance contract.
In response to Allstate's argument, Patricia Clarke submitted her own affidavit, stating that she neither had received a copy of, nor had knowledge of, the alleged endorsement that Allstate was relying upon to require her and her husband to submit to an examination under oath. She said that, until Allstate proffered the alleged endorsement as an exhibit to Tinnea's affidavit, the only prerequisites to filing a claim that she knew about were those that were set out in the provision recited in the letters she had received from Allstate. Her affidavit stated: "A true and correct copy of our Allstate automobile insurance policy is attached hereto as Exhibit `A.'" Exhibit A to her affidavit reads like the two letters from Allstate; it does not include the alleged endorsement. That exhibit does not, however, include a copy of the declarations page.
On the basis of the statements in Patricia Clarke's affidavit, she argues that a material question of fact exists as to whether the endorsement proffered by Allstate was in fact a valid part of the Clarkes' insurance policy that would compel them to submit to an examination under oath. Mrs. Clarke contends that such a factual dispute should be resolved by a jury and that the circuit court consequently erred by entering the summary judgment on the breach-of-contract, misrepresentation, and suppression claims. She contends that the affirmance of that judgment as to those claims conflicts with Pinyan v. Community Bank, 644 So. 2d 919, 923 (Ala.1994) ("there [was] a genuine issue of material fact as to whether the parties formed a contract and as to what the terms of that contract would be"; thus, it was error to enter a summary judgment for the defendant); Mobil Oil Corp. v. Schlumberger, 598 So. 2d 1341, 1346 (Ala.1992) ("In a breach of contract action, a summary judgment is appropriate only where the contract is unambiguous and the facts are undisputed."); Gossett v. Twin County Cable TV., Inc., 594 So. 2d 635, 640 (Ala.1992) ("Unless the evidence submitted on a summary judgment motion is wholly without adverse inferences or is free from any doubt, summary judgment must not be entered, but the issues must be submitted to the jury."); and Quad Cities Nissan, Inc. v. Griffin, 638 So. 2d 830, 831 (Ala.1994) (on a summary judgment motion, a court views the evidence in the light most favorable to the nonmoving party).
The Clarkes' original policy, the provisions of which were cited in the letters they received from Allstate, contained no provision that would require them to submit to an examination under oath as a prerequisite to recovering on their insurance claim. The original policy required the Clarkes to provide Allstate a written proof of loss, including "all details reasonably required by [Allstate]"; to protect the insured property from further loss; and to report any theft loss to the police. The original policy also allowed Allstate to inspect any insured property that was damaged. However, nothing in the original policy allowed Allstate to require the Clarkes to submit to an examination under oath. Moreover, no part of that policy entitled Allstate to request the broad range of documents it requested or to require the Clarkes to submit to an examination under oath. Of course, the endorsement proffered by Allstate with its motion for summary judgment would expressly allow Allstate to subject the Clarkes to an examination under oath. However, the question whether that endorsement was properly made a part of the Clarkes' policy is sharply contested.
We note that this case is unlike Nationwide Ins. Co. v. Nilsen, [Ms. 1961955, June 19, 1998] ___ So.2d ___ (Ala.1998), because the policy in Nilsen undisputedly included a clause requiring the insured to "submit to an *140 examination under oath." ___ So.2d at ___.[1] Similarly, other cases relied upon by Allstate did not present a question whether such a clause had effectively been made a part of the insurance contract.
Ala.Code 1975, § 27-14-19(a), provides:
Section 27-14-1(1), Ala.Code 1975, defines the term "policy," as it is used in § 27-14-19(a), as including "endorsements" to insurance contracts. In Brown Machine Works & Supply Co. v. Insurance Co. of North America, 659 So. 2d 51 (Ala.1995), this Court addressed a situation in which an insurer failed to comply with § 27-14-19(a) by not mailing or delivering to an insured a copy of the insurance policy that was at issue in that case. In Brown Machine Works, the Court held that "an insurer who fails to follow the statutory mandate of § 27-14-19 may be estopped from asserting an otherwise valid coverage exclusion." 659 So. 2d at 58.
In her affidavit, Patricia Clarke denied that she had received, or had had any knowledge of, the endorsement. Allstate takes issue with the sufficiency of her denial, however, pointing out that she did not state whether Stanley Clarke had ever received, or had had knowledge of, the endorsement. However, Allstate first relied on the alleged endorsement when it submitted Noble Tinnea's affidavit in support of its motion for summary judgment. That affidavit is dated May 3, 1996. Stanley Clarke had died on November 19, 1995. Thus, Stanley Clarke never had any occasion to state whether he had received the endorsement Allstate claims to have sent, and presumably Patricia Clarke could not affirmatively state that he had not. Patricia Clarke's affidavit did not directly state that no copy of the endorsement was included among the Clarkes' papers regarding their Allstate policy. However, by submitting a copy of that policy, without the endorsement, as a "true and correct copy of our Allstate insurance policy," she presented substantial evidence that no copy of the endorsement was included with the Clarkes' copy of the policy. Together with Patricia Clarke's statement that she had not received the endorsement, the record contains substantial evidence indicating that Allstate had not mailed or delivered the endorsement to the Clarkes. We note that Noble Tinnea's affidavit does not state that the endorsement was mailed or delivered to the Clarkes, and Allstate did not submit any evidence that it was.
We are somewhat troubled by the failure of Mrs. Clarke to include a copy of the declarations page with the copy of the policy that she attached to her affidavit. The copy of the declarations page submitted by Noble Tinnea shows endorsement AU1372-7 as part of the policy. However, this reference in a 1995 semiannual renewal of the policy does not establish that Allstate had mailed or delivered the endorsement to the Clarkes in 1992 or thereafter. Mrs. Clarke's denial of the receipt of the endorsement, together with Allstate's failure to assert that it had mailed or delivered it, leaves a fact question as to whether the endorsement was delivered and was thereby made a part of the policy through compliance with § 27-14-19(a).
Furthermore, this conclusion is supported by the failure of Allstate itself to rely upon the alleged endorsement when it notified the Clarkes that it intended to examine them under oath. The two letters it sent them before they filed this action both quoted the original policy language rather than the language of the endorsement. In addition to supporting a finding that Allstate had not effectively made the endorsement a part of the Clarkes' policy, these letters might support a holding that Allstate had waived any reliance on the alleged endorsement. "[F]orfeitures are not favored by the law, and the insurer may waive provisions in [a] policy intended for [the] insurer's benefit." Employers *141 Ins. Co. of Alabama v. Crook, 276 Ala. 177, 185, 160 So. 2d 463, 470 (1964).
We conclude that the factual disputes made the summary judgment inappropriate as to the claim alleging breach of contract, and that, as Mrs. Clarke asserts, the Court of Civil Appeals' affirmance of that judgment as to that claim conflicts with the cases she has cited, especially Pinyan v. Community Bank and Mobil Oil Corp. v. Schlumberger, both supra. There was a factual dispute as to whether the endorsement was part of the Clarkes' insurance policy. Thus, Allstate was not entitled to a summary judgment based on its assertion that the Clarkes' had failed to comply with the "examination under oath" provision and with the provision requiring the insureds' cooperation. "What constitutes a failure of cooperation by the insured is usually a question of fact," and "[t]he burden of proof to establish non-cooperation rest[s] upon the insurer." Employers Ins. Co. v. Crook, 276 Ala. at 180, 160 So. 2d at 465 (citations omitted); State Farm Mut. Auto. Ins. Co. v. Hanna, 277 Ala. 32,, 38, 166 So. 2d 872, 877 (1964). American Auto. Ins. Co. v. English, 266 Ala. 80, 86, 94 So. 2d 397, 402 (1957). An insurer "cannot avoid its obligations on this ground" unless the insured's failure to cooperate "is both material and substantial." Home Indem. Co. v. Reed Equip. Co., 381 So. 2d 45, 48 (Ala. 1980); Alabama Farm Bureau Mut. Cas. Ins. Co. v. Teague, 269 Ala. 53, 56-58, 110 So. 2d 290, 293-94 (1959).
There is the further question whether Allstate's request for production of documents was permitted by the terms of the policy. Allstate contends that its document request was merely incident to its request for an examination under oath and, therefore, was reasonably encompassed by the provision of the endorsement. For this proposition, Allstate has cited Ransom v. Selective Ins. Co., 229 N.J.Super. 43, 550 A.2d 1006 (1988). We decline to follow the holding in Ransom in this case. Alabama courts have long held that insurance contracts are to be strictly construed against the insurer and liberally in favor of the insured. Tyler v. Insurance Co. of North America, Inc., 331 So. 2d 641 (Ala.1976). In Employers Ins. Co. v. Brooks, 250 Ala. 36, 39, 33 So. 2d 3, 5 (1947), the Court noted that the cases, as cited therein, "show[] a desire to give a reasonable construction to the conduct of [the] insured" in regard to the duty of cooperation. Similarly, courts should give a reasonable construction to the insured's right to ask for cooperation. "Furthermore, provisions of insurance policies must be construed in light of the interpretation that ordinary men would place on language used therein." Ho Bros. Restaurant, Inc. v. Aetna Cas. & Sur. Co., 492 So. 2d 603, 605 (Ala.1986).
In United States Fidelity & Guar. Co. v. Welch, 854 F.2d 459 (11th Cir.1988), the Court of Appeals for the Eleventh Circuit, applying Alabama law, declined to allow an insurer to separately examine its policyholders, a husband and wife, because the policy did not expressly give it the right to examine them separately. The court stated: "[S]trong public policy of Alabama supports the proposition that insurance companies should not be accorded ex gratia advantages which they did not insert in the policy...." 854 F.2d at 460.
As we have shown, neither the original policy nor the endorsement gave Allstate the right to require its insureds to produce documents other than "details reasonably required" by Allstate in support of an insured's written proof of loss. Even if the provision allowing Allstate to call for "details reasonably required" may be read to support Allstate's demand for some or all of the items listed under the first two headings in Allstate's September 14, 1995, letter ("INSURANCE POLICIES" and "DEEDS AND PROPERTY INFORMATION"), it cannot be read to support the demand for the items listed under the heading "TAX AND FINANCIAL INFORMATION." Furthermore, this third demand is so broad as to be unreasonable on its face.
For the foregoing reasons, we conclude that the evidence created genuine issues of material fact on the Clarkes' breach-of-contract claim and that Allstate, therefore, was not entitled to a judgment as a matter of law on that claim. The affirmance by the Court *142 of Civil Appeals is due to be reversed as to the contract claim.
The circuit court's summary judgment also related to the Clarkes' misrepresentation and suppression claims. The complaint makes the following factual averments:
The misrepresentation claim alleges that, by using the language in the original policy,[2] Allstate misrepresented "what would be required of the Plaintiffs in the event they filed a claim under their policy." The suppression claim alleges that Allstate failed to disclose that it would require insureds to submit to an examination under oath and to produce extensive and irrelevant personal and financial records as a prerequisite to its paying an insurance claim. As one can see from the evidence, as we have described it in our discussion of the contract claim, there is a jury question on the misrepresentation and suppression claims also.
In addition, we note that Land testified by deposition that he had been requiring examinations under oath for most of his 27 years with Allstate, and there is no indication that before 1992 Allstate had in its policies a clause that would have permitted it to require examinations under oath. Furthermore, Mrs. Clarke presented pattern-and-practice evidence tending to support the misrepresentation and suppression claims. Because Mrs. Clarke submitted substantial evidence in support of her misrepresentation and suppression claims, the court erred in entering a summary judgment for Allstate on those claims. The affirmance of the judgment on those claims conflicts, as Mrs. Clarke's petition asserts, with cases such as Soniat v. Johnson-Rast & Hays, 626 So. 2d 1256, 1258 (Ala.1993) ("In order to defeat a properly supported motion for summary judgment, the nonmovant must present `substantial evidence' supporting the nonmovant's position and creating a genuine issue of material fact"; summary judgment for the defendants on a fraudulent-concealment claim reversed).
The judgment of the Court of Civil Appeals is affirmed as to the bad-faith, outrage, and conspiracy claims. It is reversed as to the breach-of-contract, misrepresentation, and suppression claims, and the cause is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
SHORES, KENNEDY, and COOK, JJ., concur.
HOUSTON and LYONS, JJ., concur in the result.
HOOPER, C.J., and MADDOX and SEE, JJ., concur in part and dissent in part.
HOUSTON, Justice (concurring in the result).
I agree that the summary judgment was erroneously entered as to the three claims presented to this Court. The record before us indicates a fact question as to whether the provision relied on by Allstate Insurance Company"[Allstate] may also require [any person making a claim on the policy] to submit to examinations under oath and sign the transcript"was a part of the Clarkes' policy at the time the Clarkes' motor vehicle was alleged to have been stolen. If the trier of fact finds that it was, then a judgment must be entered for the Allstate defendants.
*143 MADDOX, Justice (concurring in part and dissenting in part).
I concur in that portion of the main opinion affirming the judgment of the Court of Civil Appeals insofar as it relates to the plaintiffs' claims alleging bad-faith failure to pay an insurance claim, the tort of outrage, and conspiracy. I must dissent from that portion reversing as to the breach-of-contract, misrepresentation, and suppression claims. The main opinion states that "the record contains substantial evidence indicating that Allstate had not mailed or delivered the endorsement." 728 So. 2d at 140.
Once a defendant moving for a summary judgment makes a prima facie showing that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law, the burden then shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Murdoch v. Knollwood Park Hospital, 585 So. 2d 873, 876 (Ala.1991).
The main opinion concludes that the nonmovant, Patricia Clarke, met her burden by submitting a copy of the policy without the endorsement, the existence of which is a critical fact. She merely submitted a copy of the underlying policy without the endorsement or the declarations page and filed an affidavit stating that what she had submitted was a "true and correct copy of our Allstate insurance policy." Clearly, that is not substantial evidence creating an issue of fact, in view of the evidence presented by Allstate. Allstate provided an affidavit and a copy of the policy in question which, together, made a prima facie showing that the endorsement allowing Allstate to require an examination under oath had been made a part of the insurance contract in question. Mrs. Clarke presented no evidence, only her mere assertion, to indicate that the endorsement relied on by Allstate was in fact not part of the Clarkes' insurance contract. She certainly presented no evidence to indicate that Allstate had failed to notify her and her husband of the endorsement that would allow Allstate to require the insureds' testimony under oath. Black v. Reynolds, 528 So. 2d 848, 849 (Ala.1988) (stating that "[e]vidence offered in response to [a motion for summary judgment] ... must be more than a mere verification of the allegations contained in the pleadings"). In my opinion, Mrs. Clarke failed to meet her burden of presenting substantial evidence.
Because Mrs. Clarke offered no substantial evidence indicating that the Clarkes' Allstate policy did not include the endorsement allowing Allstate to require an examination under oath, the Court of Civil Appeals properly affirmed Allstate's summary judgment as it related to the breach-of-contract, misrepresentation, and suppression claims.
HOOPER, C.J., and SEE, J., concur.
[1] After this Court released its opinion in Nilsen, Allstate filed in this present case a motion for leave to file an additional brief discussing Nilsen, and it conditionally filed the brief. The Court has granted that motion, by a separate order. Mrs. Clarke moved to strike the supplemental brief, and she also filed a reply to it. The Court has denied the motion to strike, by a separate order, and we have considered her reply.
[2] That language is quoted above from the two letters sent by Allstate and its attorney to the Clarkes. | December 11, 1998 |
7386ebf0-809e-4e26-a466-14e6541bc238 | Ex Parte Woodward | 738 So. 2d 322 | 1980309 | Alabama | Alabama Supreme Court | 738 So. 2d 322 (1998)
Ex parte Jim WOODWARD.
(In re Mike Hale v. Alabama Electronic Voting Committee et al.).
1980309.
Supreme Court of Alabama.
November 20, 1998.[*]
Algert S. Agricola, Jr., of Wallace, Jordan, Ratliff & Brandt, L.L.C., Montgomery; and Albert L. Jordan, Michael L. Jackson, and Shara L. Gray of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for petitioner Jim Woodward.
C.C. Torbert, Jr., and Peter S. Fruin of Maynard, Cooper & Gale, P.C., Montgomery; Peck Fox of Steiner, Crum & Baker, Montgomery; Jack Drake of Whatley Drake, Birmingham; and Gregory H. Hawley and Stephen F. Black of Maynard, Cooper & Gale, Birmingham, for respondent Mike Hale.
Bill Pryor, atty. gen.; and John J. Park, Alice Ann Byrne, and Charles E. Grainer, Jr., asst. attys. gen., for respondents Alabama Electronic Voting Committee, Michael F. Bolin, Jim Bennett, George R. Reynolds, Polly Conradi, and Donald Keith.
This matter comes before the Court upon a petition, as amended and supplemented, by Jim Woodward, for a writ of mandamus directed to the Montgomery Circuit Court. The petition sought to have this court vacate a temporary restraining order (and now seeks to have it vacate a preliminary injunction) enjoining the defendants George R. Reynolds, Polly Conradi, *323 and Donald Keith, as members of the Jefferson County Canvassing Authority (hereinafter "Canvassing Authority"),[1] from proceeding with a recount of the votes cast in the November 3, 1998, election for the office of sheriff of Jefferson County, and from unsealing or examining the ballots cast in that election, until further order of the Montgomery Circuit Court in the case to which this petition relates, or the filing of an election contest by any person with standing to file an election contest pursuant to statutory authority.
In his petition, as amended and supplemented, Woodward (a candidate in the sheriff's election) alleges that the Canvassing Authority, as authorized by law or regulation, decided to conduct a recount, which was scheduled to begin on Monday, November 16, 1998, and was expected to last three days.
Mike Hale, Woodward's opponent in the sheriff's election, commenced an action against Woodward and the members of the Canvassing Authority and in that action obtained a temporary restraining order, and later a preliminary injunction, enjoining the recount. In proceedings before the trial court, Woodward was dismissed as a party, at the request of Hale, and the trial court denied Woodward's immediately ensuing request to intervene.
Section 307-X-1-.21 of the Alabama Administrative Code, promulgated pursuant to The 1983 Election Reform Act, Ala. Code, § 17-24-1 et seq., and particularly § 17-24-7(b), specifically authorizes the acts Hale sought to have enjoined. Section 17-24-7(a) incorporates, so far as is practicable, provisions of Chapters 8 and 9 of Title 17 dealing with voting procedures. Section 17-24-7(b) authorizes the Alabama Electronic Voting Committee, an entity created by § 17-24-4, to promulgate "other procedures where necessary to achieve and maintain the maximum degree of correctness and impartiality of voting, counting, tabulating, and recording votes, by electronic vote counting systems provided by this chapter."
The merits of Hale's challenge to the validity of § 307-X-1-.21 turn on whether § 17-24-7(b), with its reference to "voting, counting, tabulating, and recording votes," deals sufficiently with a broader subject-matter than the reference to "procedures for voting paper ballots and voting machines as prescribed in Chapters 8 and 9 of Title 17" (see § 17-24-7(a)), so as to displace provisions of Chapter 8 and Chapter 9 that expressly prevent the precontest recount allowed by § 307-X-1-.21. While § 17-24-10 saves provisions of Chapter 9 of Title 17 from repeal, it does so only to the extent that the provisions of Chapter 24 do not conflict. We make no determination at this juncture as to the merits.
We treat that aspect of Woodward's petition, as amended, attacking the preliminary injunction as an appeal of the order granting the preliminary injunction. Ex parte Health Care Management Group of Camden, Inc., 522 So. 2d 280 (Ala.1988). We also entertain other matters raised in the petitions, as amended.
We reverse the trial court's order denying leave to intervene. Woodward is a party entitled to intervene under Rule 24, Ala.R.Civ.P.
An application for a preliminary injunction should be granted only upon a showing of irreparable injury. Rule 65, Ala.R.Civ.P.; Seymour v. Buckley, 628 So. 2d 554, 557 (Ala.1993). The trial court grounded its finding of an irreparable injury on the conclusion that a precontest recount would deprive Hale of a property right and on the conclusion that the recount *324 would raise questions as to the integrity of the ballots. If the recount confirms Hale's victory, the prospects for a contest are substantially diminishedthus, Hale could be helped rather than hurt by the recount. On the other hand, if an accurate recount goes Woodward's way, then injury to Hale resulting from the disclosure of the fact that an accurate count shows he did not receive enough votes is not legally cognizable as a wrong as to which he has standing to complain. Finally, the risks of danger to the integrity of the ballots that would be raised by a precontest recount appear no greater than those that might attend a recount after contest, and, in any event, § 307-X-1-.21 includes ample provisions for assuring the integrity of the ballots. Permitting the canvass to go forward will not irreparably harm the integrity of the ballots or Hale's legally cognizable interests. We, therefore, reverse the order granting the preliminary injunction.
This Court has nothing before it in reference to that action styled Jim Woodward v. Polly Conradi et al., No. CV-98-6787, pending in the Tenth Judicial Circuit, and no aspect of our ruling today should be construed as affecting that proceeding. Moreover, nothing in this order affects in any way the time fixed by law in which Woodward might file a contest of the election or provides an alternative to the proceedings prescribed by law for contesting the election.
Based on the foregoing, it is ORDERED as follows:
The denial of the petition for leave to intervene, made orally in proceedings before the Montgomery Circuit Court on November 16, 1998, is reversed;
The orders granting the temporary restraining order and the preliminary injunction are reversed; and
All further proceedings are stayed pending an expeditious completion of the recanvassing of the ballots by the Jefferson County Canvassing Authority. At the expiration of the stay, the trial court shall resume proceedings necessary to the entry of a final judgment. Pending resumption of proceedings in the trial court upon expiration of the stay, this Court specifically retains jurisdiction of this cause to render such further or additional relief as may be required.
HOOPER, C.J., and MADDOX, HOUSTON, SEE, and LYONS, JJ., concur.
ALMON, SHORES, and KENNEDY, JJ., dissent. (Written dissent attached to this order. Further or modified dissenting opinions to follow.)[**]
KENNEDY, Justice (dissenting).
Because a majority of this Court decides that an order should be released today, I write the following:
The majority's order concludes that the parties to this action will not suffer "irreparable injury" by the breaking of the seals of the electronic voting machines in order to recount the votes cast in the general election and, therefore, the majority sets aside a preliminary injunction entered by the Montgomery Circuit Court that would prohibit the breaking of those seals absent statutory authority. The majority's actions clearly violate Alabama law, and I would hold that the trial court did not err in entering the preliminary injunction.[2]
The majority, in setting aside the injunction, holds that Ala.Code 1975, § 17-24-7(b), authorized the adoption of Alabama *325 Administrative Code § 307-X-1-.21, which allows any person with standing to contest an election to petition the canvassing authority for a recount. Section 17-24-7(b), plainly read, is not a statute that "authorizes" the adoption of administrative regulations allowing for the unlimited breaking of the seals of electronic voting machines. Section 17-24-7(b) is merely a statute that "authorizes" the adoption of administrative regulations to establish procedures for the maintenance or care of electronic voting machines in order to assure that they function properly.
Even assuming the majority's strained interpretation of § 17-24-7(b) is correct, § 307-X-1-.21 cannot function to allow a recanvassing under these circumstances, because it is in direct conflict with § 17-9-31 and § 17-9-35. Section 17-9-31 provides that "It shall be unlawful and constitute a misdemeanor... for any board of canvass, to break the seal of a voting machine for any purpose other than" those reasons expressly set out, none of which involves recanvassing. Section 17-9-35 provides that ballots and records of voting machines shall be preserved until that body that has authority is ordered to open them.
While it is a fundamental rule of statutory interpretation that this Court reads, construes and applies related statutes together, so that the legislature's intention can be gathered from the whole of the enactments, today a majority of this Court abandons this rule in order to reach the result it has fashioned. Because the majority's interpretation of § 17-24-7(b) is erroneous, what is left is an administrative regulation, Alabama Administrative Code § 307-X-1-.21, that conflicts with § 17-9-31 and § 17-9-35. It is well settled that the provisions of a statute will prevail in any case of conflict between the statute and an agency regulation. Ex parte State Dep't of Human Resources, 548 So. 2d 176 (Ala.1988). Accordingly, I dissent from the order issued today, and I rely upon § 17-9-31 and § 17-9-35 as authority for my belief that the majority's actions today violate Alabama law.
Moreover, even if we accept the majority's interpretation of § 17-24-7(b), to authorize recanvassing, that statute applies only to votes cast by electronic ballot and not to those votes cast by paper ballot. Therefore, "interested persons" in areas where paper ballots are cast would not be entitled to a recanvass. Clearly, in my opinion, this raises serious constitutional concerns based on the Equal Protection Clause.
Because the majority of this Court has determined that the issuance of its order should be immediate, I reserve the right to expand upon my dissent in the future. In addition, I defer discussion of any apparent irregularities that have occurred in the handling of this appeal.
SHORES, J., concurs.
[*] Note from the reporter of decisions: When this order was initially released, it inadvertently carried the incorrect date November 19, 1998.
[1] The Jefferson County Canvassing Authority is composed of the judge of probate, the circuit clerk, and the sheriff of Jefferson County. See Ala.Code 1975, § 17-14-1 et seq. Because Woodward is the current sheriff of Jefferson County, his position on the Authority was filled by Donald Keith, who serves as a captain in the Jefferson County Sheriff's Department.
[**] Note from the reporter of decisions: As of June 12, 1999, Justices Almon, Shores, and Kennedy all had left the Court by retirement, without filing a further dissent or modifying the dissent issued with the November 20, 1998, order.
[2] My writing should not be read to imply that Jim Woodward would not be entitled to file an election contest pursuant to Ala.Code 1975, § 17-15-1 et seq. | November 20, 1998 |
4f8e0956-48d2-45e3-9428-5c13ce32b29d | Ex Parte Edwards | 727 So. 2d 792 | 1971840 | Alabama | Alabama Supreme Court | 727 So. 2d 792 (1998)
Ex parte Sharon K. EDWARDS.
(Re Sharon K. Edwards v. Ronald Walter Edwards).
1971840.
Supreme Court of Alabama.
November 25, 1998.
*793 J. Christopher Capps, Dothan, for petitioner.
Stanley P. Walker and J.E. Sawyer, Jr., Enterprise, for respondent.
LYONS, Justice.
Sharon K. Edwards, a party in a case pending in the Pike Circuit Court, petitions for a writ of mandamus directing the trial judge, Judge Robert W. Barr, to enter an order awarding custody of the parties' minor children to her and to vacate his orders of September 3, 1998, and September 10, 1998, setting pending issues for an evidentiary hearing and/or trial. For the reasons discussed below, we grant the petition in part and deny it in part.
When Sharon K. Edwards and Ronald Walter Edwards were divorced in February 1994, the mother was awarded custody of their two minor children. The father filed a petition to modify, in June 1997, requesting that custody of the children be awarded to him. The mother then filed an answer and a counterclaim, requesting a modification of the father's child-support obligation. On August 7, 1997, the trial court entered a judgment transferring custody of the children from the mother to the father. The mother appealed to the Court of Civil Appeals. On May 1, 1998, that court reversed the trial court's judgment and remanded the cause "for proceedings consistent with this opinion." Edwards v. Edwards, 720 So. 2d 956 (Ala.Civ.App.1998).
The father petitioned this Court for certiorari review. On May 21, 1998, at the father's request, the trial court ordered "that this cause be and the same is stayed pending appellate review of the Court of Civil Appeals' decision dated May 1, 1998."[1] The mother then petitioned this Court for a writ of mandamus directing the trial court to set aside its order staying the proceedings and to comply with the directive of the Court of Civil Appeals. On August 26, 1998, this Court denied certiorari review of the Court of Civil Appeals' May 1, 1998, judgment, and on September 29, 1998, we dismissed the mother's petition for the writ of mandamus as moot.
In the meantime, on August 31, 1998, the mother had filed in the trial court a "Motion to Enter Order in Accordance with Opinion of [the] Alabama Court of Civil Appeals." In that motion, she requested the trial court to enter an order returning custody of the children to her and ordering that the parties' divorce judgment entered on February 10, 1994, continue to govern the proceedings involving her and her former husband. We note that the mother stated in her motion that "the father returned the minor children to the mother Sunday, August 30, 1998, so that the children could be immediately enrolled in the Tallahassee School System." On September 3, the trial court entered the following notation on the case action summary sheet:
Also on September 3, 1998, the father filed a motion to have the case set for trial, and on September 10, 1998, the trial court scheduled the trial for December 1, 1998.
On October 1, 1998, the mother filed a motion with this court asking us to "reconsider" our denial of her petition for the writ of mandamus. We treated that filing as a motion to amend the petition for the writ of mandamus, and granted the motion. In her amended petition, the mother argues that the trial court's order setting this case for an evidentiary hearing and/or trial conflicts with the decision of the Court of Civil Appeals and with the subsequent orders entered by this Court. She also alleges that the trial court has not yet entered an order awarding custody of the children to her.
In his answer to the mother's petition, the father contends that the trial court complied with the Court of Civil Appeals' judgment when it set this case for "further proceedings consistent with" that court's opinion. The father states that issues regarding visitation and child support have yet to be resolved in this case. The father also states that "since further proceedings were ordered, [he moved] the Trial Court for trial so that he could present additional evidence (concerning facts occurring after the Trial Court's original judgment) in support of his Motion to Modify Custody."
In response, the mother argues that a hearing to determine child support is not necessary in this case because, she says, the trial court can determine the proper amount of support from income affidavits filed by the parties. She also argues that a hearing is not necessary to determine visitation, if the trial court grants her August 31, 1998, motion and orders that the parties' 1994 divorce judgment continue to apply. Finally, the mother argues that the doctrine of res judicata prevents the father from presenting new evidence regarding the issue of custody.
A petition for a writ of mandamus is the proper method for bringing before an appellate court the question whether a trial court, after remand, has complied with the mandate of this Court or of one of our intermediate appellate courts. Ex parte Brown, 562 So. 2d 485 (Ala.1990). Furthermore, a petition for a writ of mandamus is the proper method for seeking to have a trial court vacate an order that it had no power to enter. Great Atlantic & Pacific Tea Co. v. Sealy, 374 So. 2d 877 (Ala.1979). A writ of mandamus is an extraordinary remedy, however, that should be granted only if the trial court clearly abused its discretion by acting in an arbitrary or capricious manner. Ex parte Rollins, 495 So. 2d 636 (Ala.1986). The petitioner must demonstrate the following: "(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 Adams, 514 So. 2d 845, 850 (Ala.1987).
We first address whether the trial court has complied with the mandate of the Court of Civil Appeals. "It is well settled that, after remand, the trial court should comply strictly with the mandate of the appellate court by entering and implementing the appropriate judgment." Auerbach v. Parker, 558 So. 2d 900, 902 (Ala.1989). In Ex parte Alabama Power Co., 431 So. 2d 151 (Ala. 1983), this Court stated:
431 So. 2d at 155 (quoting 5 Am.Jur.2d, Appeal & Error § 991 (1962)).
Clearly, the mandate of the Court of Civil Appeals required that the trial court enter a judgment awarding custody of the minor children to the mother. Instead of entering the appropriate judgment, however, the trial court set the case for an evidentiary *795 hearing and/or trial on December 1, 1998, relying on language commonly used by an appellate court to remand a cause for "proceedings consistent with" its opinion. No doubt, the "proceedings" referred to in the Court of Civil Appeals' opinion contemplated the entry of a judgment without a new trial or an evidentiary hearing. See, e.g., Murphree v. Murphree, 600 So. 2d 301, 303 (Ala. Civ.App.1992) ("given the facts and the language of the opinion, `further proceedings' meant a reduction in the amount of child support awarded").
The father now seeks to use the "proceedings" ordered by the trial court to present what he refers to as additional evidence regarding his petition for modification, evidence that he says concerns facts that occurred after the trial court had entered its "original judgment." Neither of the parties has included a copy of the father's petition with the supporting documentation submitted to us. We cannot tell, therefore, if the father is attempting to present additional evidence in support of his June 1997 petition for modification or if he has filed a new petition since that time. If he seeks to reopen the decision made regarding that 1997 petition, he may not do so in the proceedings scheduled for December 1, 1998. The custody determination is final with respect to the particular set of circumstances before the court upon which it made the decision that ultimately was reversed by the Court of Civil Appeals. See Self v. Fugard, 518 So. 2d 727 (Ala.Civ.App. 1987).
If the father has new evidence, however, that he believes would allow him to seek to have the most recent custody determination modified, then he may, if he has not already done so, file a new petition for modification with the trial court. Id. Contrary to the mother's contention, the issue of the proper custody of minor children is never res judicata. Ex parte Lipscomb, 660 So. 2d 986 (Ala.1994). If the proceedings scheduled for December 1, 1998, are for the purpose of considering a subsequent petition for modification based on evidence relating to events occurring after the August 7, 1997, determination was made, then those proceedings may go forward.
In addition to his allegations of new evidence, however, the father also contends that issues regarding visitation and child support remain unresolved. The mother argues that no hearing is necessary on those matters because, she says, the visitation schedule in the original divorce judgment can be used and the trial court can determine the appropriate amount of child support from income affidavits filed by the parties. Because we have not been provided with copies of the pleadings filed by the parties, we are not able to determine the issues that the trial court has the authority to address. Neither party informs us whether the issue of the modification of visitation was raised in the father's June 1997 petition. If it was, however, we cannot say that the trial court abused its discretion in scheduling a hearing to consider the visitation issue and to allow the parties to present evidence if necessary. The Court of Civil Appeals' opinion states that the mother's counterclaim, filed in response to the father's June 1997 petition to modify, sought a modification of the amount of child support paid by the father. Again, we cannot say that the trial court abused its discretion in scheduling a hearing to consider the child-support issue. A court often must consider factors other than the parties' income affidavits in calculating child support. See generally Alabama's "Child Support Guidelines," Rule 32, Ala. R. Jud. Admin. To the extent that the proceedings scheduled for December 1, 1998, are for the purpose of dealing with matters regarding visitation and/or child support that presently are pending, those proceedings also may go forward.
The mother's petition for the writ of mandamus is due to be granted insofar as it seeks an order awarding custody of the children to her in compliance with the mandate of the Court of Civil Appeals. The trial court is hereby directed to enter that order forthwith. To the extent that the proceedings scheduled for December 1, 1998, are intended to address other pending matters, however, those proceedings may go forward, subject to the following conditions:
1. Modification of the child support paid by the father may be considered, unless the *796 mother chooses to withdraw her request for that modification.
2. Modification of visitation may be considered if the father has asked for a modification of his visitation rights.
3. New evidence relating to events occurring after August 7, 1997, regarding the modification of custody of the children, may be considered only if the father presently has pending a petition for modification that was filed after August 7, 1997, and that has not yet been considered.
PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.
HOOPER, C.J., and MADDOX, KENNEDY, and SEE, JJ., concur.
[1] We note that the condition under which the stay was entered, i.e., the then pending certiorari review of the Court of Civil Appeals' decision, no longer exists; therefore, it has expired by its own terms. We have not been asked to address the propriety of the initial entry of the stay. | November 25, 1998 |
7cf59c62-77e2-46eb-8187-1d5a6edfcc9c | Ex Parte Hooks | 728 So. 2d 631 | 1962182 | Alabama | Alabama Supreme Court | 728 So. 2d 631 (1998)
Ex parte Christine HOOKS and Walter L. Young.
(In re Calhoun County Commission
v.
Christine Hooks and Walter L. Young).
1962182.
Supreme Court of Alabama.
December 11, 1998.
Clifford L. Callis, Jr., and Jay E. Stover of Callis & Stover, Rainbow City, for petitioners.
Thomas N. Sowa, Anniston, for respondent.
LYONS, Justice.
The judgment of the Court of Civil Appeals, Calhoun County Comm'n v. Hooks, 728 So. 2d 625 (Ala.Civ.App.1997), is reversed and the cause is remanded for reconsideration in light of Ex parte Horn, 718 So. 2d 694 (Ala.1998).
REVERSED AND REMANDED.
*632 HOOPER, C.J., and ALMON, SHORES, HOUSTON, and COOK, JJ., concur.
MADDOX and SEE, JJ., dissent. | December 11, 1998 |
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US-LegalKit
Official version is available through the HFfoLegal org
They are the same, but this version may be removed in the future to prevent conflict.
This dataset consists of all state supreme court verdicts from 1845 - 2024. This does not include New York where the appellate court is the highest division. This is in progress as a separate batch.
A version will be uploaded ASAP with the actual document content as well.
Project Progress and Data Distribution
TODO List
- State Supreme Court verdicts
- US Federal Code
- State Code
- US Federal Supreme Court verdicts
- New York Appellate court verdicts
- Add complete documents to US Federal Code
- Add complete documents to State Supreme Court verdicts
- [] Federal District Court Verdicts
Current Distribution
| State | Count |
|---|---|
| Oklahoma | 33,709 |
| Pennsylvania | 24,980 |
| Georgia | 20,706 |
| Alabama | 19,081 |
| Montana | 19,044 |
| Arkansas | 16,811 |
| Nebraska | 16,060 |
| Iowa | 16,044 |
| Florida | 16,033 |
| West Virginia | 15,416 |
| Louisiana | 15,263 |
| Delaware | 14,792 |
| Mississippi | 14,642 |
| Minnesota | 14,511 |
| North Dakota | 13,364 |
| North Carolina | 12,541 |
| Kansas | 12,173 |
| Washington | 12,079 |
| Wisconsin | 11,996 |
| Wyoming | 11,878 |
| Illinois | 11,087 |
| Massachusetts | 10,996 |
| Colorado | 10,945 |
| South Carolina | 10,620 |
| Indiana | 10,583 |
| Maine | 9,758 |
| Hawaii | 9,624 |
| Oregon | 9,113 |
| Rhode Island | 9,051 |
| Missouri | 8,625 |
| New Jersey | 8,565 |
| Vermont | 8,445 |
| Connecticut | 8,096 |
| Michigan | 8,059 |
| Kentucky | 8,044 |
| Virginia | 7,930 |
| South Dakota | 7,894 |
| Utah | 7,769 |
| Nevada | 7,147 |
| Arizona | 7,032 |
| Texas | 6,880 |
| New Hampshire | 6,502 |
| Alaska | 6,498 |
| New Mexico | 5,970 |
| Tennessee | 4,497 |
| California | 2,223 |
As we can see here some states tend to take cases to the supreme court much more frequently than others.
References
Citation
@misc{US-LegalKit,
author = {Tim Dolan},
title = {US-LegalKit: Supreme Court Decisions},
year = {2024},
howpublished = {\url{https://huggingface.co/datasets/macadeliccc/US-LegalKit}},
}
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