Butler v. Town of Argo

• Court: Alabama Supreme Court
• Writing for the Court: BROWN, Justice.
• Citation: Butler v. Town of Argo, 871 So.2d 1 (Ala. 2003)
• Decision Date: 30 June 2003
• Parties: Kim BUTLER v. TOWN OF ARGO. Paul Jennings v. Kim Butler. Kathryn Ayres v. Kim Butler. John Wayne Fore v. Kim Butler. Kim Butler v. Paul Jennings et al.

871 So.2d 1

Kim BUTLER v. TOWN OF ARGO.

Paul Jennings v. Kim Butler.

Kathryn Ayres v. Kim Butler.

John Wayne Fore v. Kim Butler.

Kim Butler v. Paul Jennings et al.

1001496, 1064, and 1010017.

Supreme Court of Alabama.

June 30, 2003.

Tom Burgess and Murray H. Gibson, Jr., of Burgess & Hale, LLC, Birmingham, for Kim Butler.

Robert R. Baugh and Kerry P. McInerney of Sirote & Permutt, P.C., Birmingham, for Paul Jennings and Town of Argo.

James R. Shaw of Huie, Fernambucq & Stewart, LLP, Birmingham, for John Wayne Fore and Kathryn Ayres.

BROWN, Justice.

Paul Jennings, John Wayne Fore, and Kathryn Ayres appeal from a judgment entered against them on a jury verdict in the Jefferson Circuit Court. Kim Butler appeals the order of the trial court remitting the damages award. We reverse the judgment against Jennings, Fore, and Ayres; we dismiss Butler's appeal from the judgment against the Town of Argo;¹ and we dismiss as moot Butler's appeal from the judgment against Jennings, Fore, and Ayres.

Facts and Procedural History

Paul Jennings ran for mayor of the Town of Argo in August 1996. The race between Jennings and his opponent was divisive and the election was close. After an election contest, Jennings was declared the mayor by a margin of two votes, and he began serving in November 1996. Shortly after Jennings entered office, the chief of police of Argo, Larry Leonard, left his job and filed an unrelated action against the Town of Argo, members of the city council, and Mayor Jennings.² On February 8, 1997, Kim Butler, a resident of Hayden, Alabama, was driving through Argo when she was stopped by Officer John Wayne Fore, who cited Butler for speeding and issued her a speeding ticket. Later that month, Butler telephoned Mayor Jennings, with whom she had attended high school, to discuss the ticket. Because Jennings was not in at the time of her call, Butler left a message on his answering machine. When Jennings called Butler back, Butler expressed concern that the speeding ticket would cause her insurance rates to increase. According to Butler and Jennings, Butler stated that she was willing to pay the ticket, but she wanted to know if there was any way to keep her insurance company from finding out about the ticket. Jennings told Butler that he had been in office only a short time and that he did not know what, if anything, he could do for her. He told her that he would look into the situation and get back in touch with her.

On February 22, 1997, Jennings called Officer Fore, who was on patrol, into the mayor's office. It was a Sunday night, and no one else was in the building at that time. When Fore arrived at Jennings's office, they began to discuss the speeding ticket Fore had issued to Butler. Unbeknownst to Jennings, Fore had a small tape recorder in the front pocket of his shirt and he tape-recorded the remainder of the conversation. The following transcript was made of the taped conversation³:

"Mayor: [Butler] called me. She called me Sunday. I didn't know, I went to school with her.

"Policeman: She was a ....

"Mayor: Kim Wiles Butler.[⁴]

"Policeman: Yeah, she was ... a Ford Explorer.

"Mayor: I don't know what she was driving. Only she called me and she's all upset, she's got a bunch of stuff on her driving record. Says she went to Florida last year and got a ticket going down and coming back.

"Policeman: [I know one thing, I've done that.]

"Mayor: She's had a wreck since. She's paid for her insurance. Another ticket would put her over the limit. I don't know nothing about that. She said I don't mind paying it if there's any way we could maybe get it off where it wouldn't be on my record. I don't know if that's possible or not.

"Policeman: Yeah, I'm with you.

"Mayor: What I was thinking was this, her husband is in the paving business. I thought I might, with a little cooperation maybe call her and tell her Kim, I know you've had some problems, I ain't telling you you got to do it, but would you be willing to make a donation to our little senior citizen thing out here? $100 donation from your paving company, something like that? I don't know if that's wrong or right, I don't know.

"Policeman: I don't know, really. I know she was upset the way she ....

"Mayor: Yeah she said oh I squalled when I left. She called and talked to her mama today, and I tried to call her the other day and I had her home number, she just happened to be home this morning when I called and she said I tell you what I called mama and told her I was going to try to call you one more time but mama said well don't be calling Paul, said there ain't no need to try to call him about no ticket, he can't even get his own fixed down there.

"Policeman: They-a, she-a ....

"Mayor: Now what did she look like? She used to be a good looking girl. Used to be, she was the head cheerleader, and I mean she was ....

"Policeman: She's still good looking. She's good looking. She really is a looker. She came around back there and be-bopping and say hey ....

"Mayor: She said she'd just eat at the restaurant, Chris Eswell and them was up there and when she left she thought it was them. She said I think I startled when I got out come back to the car.[⁵]

"Policeman: She started to know all this bull crap trying to tell people she knew got off around here.

"Mayor: I think she said she asked if I was still the mayor and all this.

"Policeman: She said she went to school with you. I don't know. I said, uh, no, uh, I'm not ... one of them. Just go up and have a seat and then .... But she was doing, you know, I could understand if she was doing you know 10, 15 miles, but she was doing 24 miles over the speed limit. She was flying.

"Mayor: ... Hayden; 63 she a, ....

"Policeman: Well, I tell you what, if looks could kill, I'd still be out there on Old Springville Road.

"Mayor: She upset?

"Policeman: Oh she was mad. When I walked up to the door, I said, [Ms. Wiles], I'm citing you for running 63 in a 40 and she turned around and looked at me, I tell you what boy, if that would have killed me it would have done killed me cause I'd have still been there. She was crying upset.

"Mayor: She just told me she said I tell you officer, I went to Florida last year and I don't know what it was on the freeway that got me going and a coming.

"Policeman: That got me about 2 or 3 years ago.

"Mayor: She said when I turned around and get back home, we hadn't been back long and me and my husband driving down there and somebody stops right in front of me and I rear-end them. She said I'm afraid my insurance going to end up dropping me if this gets on my record. I said oh I can't say, I said you give me a week and let me see what I can do and I'll call you back.

"Policeman: She's a good looking thing, I wish we could work out something else.

"Mayor: She used to be tough but ... my cousin used to get a little of that a long time and she's good looking ... but said you could float a battleship with....[⁶]

"Policeman: Hey tell her to come on by and talk to [Jane Rands].[⁷]

"Mayor: She said I can't even read what his name was. I said I don't know what time it was and she said about 5:30. I said about 5:30, that may have been John. She said well listen, J.W. I can't read that. That's John Wayne. OK. She said well you know if he can't ... it ain't the money, it's just the fact that it gets on my record. She said you know we're in the paving business. I thought well it might be good to have an ally right there. Might be able to do some other work.

"Policeman: Tell her to come on by and tell her we'll work out something (laughter).

"Mayor: Ooo, I would. I can be jealous of ....

"Policeman: Well, hell, we got a bunch of empty houses up there on ....

"Mayor: I'm going to be there, I might go over there tonight. Might have some company tomorrow night.

"Policeman: I'm going to have to watch you ....

"Mayor: I need a little protection, watch my back, John Wayne what the problem is, it's my back that's exposed.

"Policeman: I used to play all them games at night, when I ... I used to have people rant and rave around town panting my name.

"Mayor: Bad thing is I don't go out and hunt `em. Next time I find one coming that way; I'm going to tell you something, I ain't, somebody comes to my house, I mean I ain't much on married women, but if a married woman comes to my house and gives me some tail, you ain't a man if you don't take it, now. It ain't right, it ain't right to say no, you gotta go, you go on. I don't have that happen real regular but ... you can't, I ain't never run from none, now. Ain't never had no bad, either. Had better, never had bad.[⁸]

"There was another one I stopped giving a ticket to, she was doing 64, I think. She said something about Andy Garrison and she didn't say your name, she said somebody else's name. When I gave her the ticket and everything, she said I'll talk you later. I said, well, alrighty.[⁹] I don't Kim, I have not seen her in probably 7 or 8 years.[¹⁰]

"Policeman: She still looked good, I give you that.

"Mayor: She did. She had a good tan, dark hair. She was on my answering machine on Sunday.

"Policeman: I missed my opportunity.

"Mayor: Yeah, your wife would beat the stew out of you now.

"Policeman: This is between ....

"Mayor: I'll call her and have a little chitchat with her then.

"Policeman: Alright.

"Mayor: See if I can get her to come to bed with me anyway.

"Policeman: That'd be fine too. Tell Johnny we're missing him.

"Mayor: Alright.

"Policeman: Alright.

"Mayor: We'll holler at you later.

"Policeman: OK."

Butler testified that, after the telephone conversation with Jennings, her ticket was dismissed and she knew nothing about the circumstances of the dismissal. She stated that Jennings never called her back and that she did not make any kind of payment or donation in order to get the ticket dismissed. Jennings testified that he did not contact Butler about the ticket or the dismissal after their initial telephone conversation.

Officer Fore, after...