Brown v. State

Decision Date11 May 1990
Citation565 So.2d 585
PartiesJames Clyde BROWN, et al. v. STATE. 88-656.
CourtAlabama Supreme Court

William J. Baxley and Joel E. Dillard of Baxley, Dillard & Dauphin, Birmingham, and James Doyle Fuller and George Lamar Beck, Jr., Montgomery, for appellants.

Don Siegelman, Atty. Gen., and Leura J. Garrett, Asst. Atty. Gen., for appellee.

SHORES, Justice.

This action is an outgrowth of this Court's decision in Ex parte Dison, 469 So.2d 662 (Ala.1984), in which we reversed the defendant's conviction for driving under the influence in violation of Code of 1975, § 32-5A-191, because the Uniform Traffic Ticket and Complaint ("UTTC") issued to the defendant had not been verified before a judicial officer and the defendant had raised this issue at the time of trial. 1 We concluded in Dison that this lack of verification of the ticket prevented the district court, and subsequently the circuit court on appeal, from obtaining subject matter jurisdiction, and, thus, that the defendant's conviction was void. 469 So.2d at 665.

Following the Dison decision, James Clyde Brown 2 and Terry P. Duncan 3 filed this class action against the State of Alabama, the City of Montgomery, and others on behalf of themselves and all those who had been convicted of traffic offenses based upon improperly verified UTTC's. Their case was styled a "Petition for Writ of Habeas Corpus or in the Alternative Bill for Declaratory Judgment, Injunctive or Other Relief." They sought to have all improperly verified UTTC convictions expunged from the records and to have all fines and costs paid as a result of the convictions refunded to the plaintiffs.

The Circuit Court of Montgomery County certified the plaintiff and defendant classes on September 5, 1985. The trial judge's order defined the plaintiffs' class as follows:

"All individuals who have been convicted of traffic infractions or other violations wherein the originating complaint was embodied on the Alabama Uniform Traffic Ticket and Complaint as provided by Rule 19 of the Alabama Rules of Judicial Administration which said complaints were not properly verified prior to entry of judgment at the initial trial level, exclusive of convictions rendered in the 10th Judicial Circuit. 4 Inferentially, this class is limited to those people who were convicted on improperly verified complaints subsequent to April 1, 1977, which is the effective date of the adoption of the Uniform Traffic Ticket and Complaint. From the evidence in this case the Court deems it appropriate to further delineate this class into two subclasses. The Court notes that there are certain members of the class whose convictions will show on the face of the record whether the complaints are properly verified, while others of the overall class will require proof outside the record to establish whether the complaint was properly verified. The class is therefore further defined by 'Subclass A' and 'Subclass B' as follows:

"SUBCLASS A:

"Those members of plaintiff's class who were convicted of various offenses on the Alabama Uniform Traffic Ticket and Complaint which said complaints show on the face thereof that they were not properly verified.

"SUBCLASS B:

"Those members of plaintiff's class who were convicted of various offenses on the Alabama Uniform Traffic Ticket and Complaint which said complaints appear to be properly verified on the face thereof but which can be shown in fact to be improperly verified."

(C.R. 212-13.)

In this same order the trial judge defined the class of defendants as follows:

"All municipal corporations within the State of Alabama which maintain and operate municipal courts hearing traffic infractions based on the Uniform Traffic Ticket and Complaint and which have imposed fines and court costs and other penalties against the members of the Plaintiffs' class as above defined, exclusive of municipalities within the 10th Judicial Circuit."

(C.R. 214.) The trial judge ordered:

"1. That this cause shall be maintained as a class action under Rule 23(b)(1) and (2) of the Alabama Rules of Civil Procedure on behalf of the class comprised of the named Plaintiffs and all other individuals similarly situated as defined above; and "2. That this class action shall further be maintained against the State of Alabama as an individual Defendant, and against the City of Montgomery individually and as a representative of the class of defendants of municipal corporations as above defined; and

"3. That the judgment in this class action, whether or not favorable to aforesaid Plaintiffs' or Defendants' classes or any members thereof, shall include, and be binding on all class members as hereinbefore described.

"4. The Court further orders that, while under the provisions of the appropriate rules notice to the class is not required, general notice would be appropriate and it is therefore further ordered that said notice in the form attached hereto as Exhibit 'A' be published for once a week for three consecutive weeks in the legal notice section of the following newspapers published and circulated within the State of Alabama:

"A. Birmingham News, Birmingham, Alabama;

"B. Huntsville Times, Huntsville, Alabama;

"C. The Anniston Star, Anniston, Alabama;

"D. The Florence Times, Florence, Alabama;

"E. Tuscaloosa News, Tuscaloosa, Alabama;

"F. Montgomery Advertiser-Journal, Montgomery, Alabama;

"G. The Dothan Eagle, Dothan, Alabama;

"H. Mobile Press-Register, Mobile, Alabama;

"I. Montgomery Independent, Montgomery, Alabama;

"the cost of this notice shall be borne by the Plaintiffs in this cause and should Plaintiffs prevail, may be taxed as cost at a later date.

"5. In conjunction with this Court's decision to publish notice of this action, the Court further orders that an individual copy of Exhibit 'A' should be sent to all municipalities within the Defendants' class, by certified mail, addressed to the Clerk of such cities. In addition thereto, a copy of the notice attached hereto as Exhibit 'B' should also be sent to said municipalities. The Defendants are hereby ordered to forthwith provide to counsel for the Plaintiffs a list of all such municipalities. Upon receipt of such list Plaintiffs' counsel shall mail to the Clerk for each municipality on said list, a copy of the notices attached hereto as Exhibits 'A' and 'B'. The cost of this mailing shall also be borne by Plaintiffs and, should they ultimately prevail in this cause, may be taxed as costs against the Defendants."

(C.R. 214-16.)

Plaintiffs' counsel subsequently filed a "Notice of Compliance with Publication Order" certifying that he had fully complied with the trial court's order of September 5, 1985, at his expense. (C.R. 270.)

During the pendency of the present case and also as an outgrowth of the Dison decision, a woman who had pleaded guilty twice to driving under the influence in Dothan filed a collateral proceeding to set aside and vacate her convictions and to secure a refund of her fines. Neither of the two UTTC's she had received was sworn to or acknowledged before a judge or magistrate, and this lack of verification was plain on the face of the ticket. City of Dothan v. Holloway, 501 So.2d 1136 (Ala.1986). In Holloway this Court overruled Dison and held that the lack of verification of the UTTC's would only affect the trial court's ability to obtain jurisdiction over the person and not its ability to obtain jurisdiction of the subject matter. We said:

"Therefore, the fact that the ticket in the Dison case was not verified would not affect the district court's jurisdiction of the subject matter. Instead, the lack of verification would more directly affect the question of whether the court had obtained personal jurisdiction of the defendant."

501 So.2d at 1137.

"In overruling the Dison opinion, we are simply holding that if the UTTC is not verified and the defendant does not object to this defect, before trial, then the objection to the court's personal jurisdiction of the defendant has been waived."

501 So.2d at 1139.

"By coming to this resolution of the issue, we necessarily hold that those persons who were convicted of traffic infractions pursuant to an unverified UTTC and who did not object to that defect at the appropriate time, are not entitled to have their convictions vacated or the fines they paid refunded."

Id.

On December 30, 1985, the trial court entered a summary judgment in favor of the plaintiffs as to Subclass A only, and certified that summary judgment as final, pursuant to Rule 54(b), A.R.Civ.P. The trial court found a genuine issue of material fact as to Subclass B and denied summary judgment as to it. This Court, on the authority of Holloway, reversed the judgment of the circuit court as to Subclass A 5 and remanded the cause in State v. Brown ("Brown I "), 514 So.2d 836 (Ala.1987), cert. denied, 485 U.S. 961, 108 S.Ct. 1225, 99 L.Ed.2d 425 (1988).

The defendants filed a motion on May 12, 1988, to dismiss plaintiffs' claims as to Subclass B, those whose UTTC's appeared on their face to be properly verified. The trial court dismissed all of plaintiffs' claims on the basis of the authority of Brown I, and made the order final pursuant to Rule 54(b), A.R.Civ.P. The plaintiffs appeal. 6

We must determine whether the trial court erred in dismissing the claims against the State of Alabama made by the members of Subclass B who had been convicted of traffic offenses pursuant to UTTC's that indicated a proper verification on the face of the tickets, but which were in fact not verified. This Court's reversal of Brown I, supra, did not mandate dismissal of the complaint as to Subclass B, as it dealt only with Subclass A.

The facts in Dison, Holloway, and Brown I are distinguishable from those in this case. In each of those cases the UTTC's that were issued to the defendants were invalid on their face. Dison raised the issue of verification at the time of trial; Ms. Holloway did not raise the...

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