Fountain v. Phillips
Decision Date | 23 September 1983 |
Parties | J.F. FOUNTAIN and Frank Fountain v. Gilmer P. PHILLIPS, et al. 82-527. |
Court | Alabama Supreme Court |
Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for appellants.
George Hawkins and Roger C. Suttle, Gadsden, for appellees.
Plaintiffs/Appellees Gilmer P. Phillips and Inez B. Phillips initiated this cause on March 8, 1973, against Defendants/Appellants Frank Fountain and his father, J.F. Fountain, seeking to quiet title to approximately 1,377 acres of realty situated in Etowah and St. Clair Counties. Defendants answered and counterclaimed, alleging that they held interests in the real estate through certain instruments, particularly a lease/option to purchase agreement between the Phillipses and J.F. Fountain. Plaintiffs, while admitting the existence of certain transactions between the parties, denied the existence or execution of J.F. Fountain's alleged "option," and further contended that he had lost his interest because of abandonment and nonpayment of rent.
Subsequent to a mistrial in April of 1982, a jury, on November 5, 1982, returned a verdict in favor of the Plaintiffs. 1 Defendants' post-trial motions were denied. This appeal, by J.F. Fountain only, followed. 2 We affirm.
When this case was before us on a prior appeal (in which the trial court's order granting Plaintiffs' motion for a summary judgment was reversed, Fountain v. Phillips, 404 So.2d 614 (Ala.1981)), this Court's opinion set forth a basic outline of the triable factual issues. For purposes of this appeal, we need only relate those facts and procedural events essential to a consideration of the issues here presented and treated in this opinion.
During trial, J.F. Fountain sought to testify concerning an alleged handwritten "option to purchase," which, according to him, was executed by the Phillipses and given to him at the same time he received a one-year leasehold agreement. The trial court sustained objections to this evidence. Pertinent portions of that colloquy are quoted verbatim from the record, to-wit:
During summation to the jury Plaintiffs' counsel made the following argument, in part (quoting from the record):
ISSUES
Of the several issues presented, we consider the two issues arising out of the procedural context set out under "FACTS" above deserving of our treatment:
Appellant states those issues thusly:
Fountain contends that the trial court erred in failing to accept his testimony concerning the alleged "missing" option agreement of July 1972. We disagree.
J.F. Fountain testified that the original "missing option" could not be found, and, as a result, Plaintiffs drew up a subsequent "option." While the "best evidence rule" objection may have been inappropriate, the trial judge correctly excluded the evidence under the general objection of relevancy. To be admissible,...
To continue reading
Request your trial-
Belcher v. State
...Case law demonstrates, however, that the courts have not been overly restrictive in their application of this rule." Fountain v. Phillips, 439 So. 2d 59, 63 (Ala. 1983). Not all arguments that ask the jury to place themselves in the victim's place are reversible error. Cofield v. State, 41 ......
-
Belcher v. State
...demonstrates, however, that the courts have not been overly restrictive in their application of this rule."Page 97 Fountain v. Phillips, 439 So. 2d 59, 63 (Ala. 1983). Not all arguments that ask the jury to place themselves in the victim's place are reversible error. Cofield v. State, 41 Al......
-
Adkins v. Aluminum Co. of America
...470 A.2d 802 (1984).17 New Testament, Luke 6:31.18 Accord e.g., Rojas v. Richardson, 703 F.2d 186, 191 (5th Cir.1983); Fountain v. Phillips, 439 So.2d 59, 63 (Ala.1983); Beaumaster v. Crandall, 576 P.2d 988, 994 (Alaska 1978); Delaware Olds, Inc. v. Dixon, 367 A.2d 178, 179 (Del.1976); Mill......
-
Black Belt Wood Co., Inc. v. Sessions
...litigant is considered improper. The courts, however, have not been overly restrictive in their application of this rule. Fountain v. Phillips, 439 So.2d 59 (Ala.1983). In a case where an objection to improper argument is made and sustained, with the trial court instructing the jury that th......