Friedman v. Friedman
| Decision Date | 27 April 2007 |
| Docket Number | No. 1050043.,1050043. |
| Citation | 971 So.2d 23 |
| Parties | Sylvia FRIEDMAN and Joseph Friedman v. Vivian K. FRIEDMAN. |
| Court | Alabama Supreme Court |
Jack Floyd of Floyd, Floyd & Floyd, Gadsden, for appellants.
Carla M. Handy of McCord & Martin, Gadsden, for appellee.
Sylvia Friedman and Joseph Friedman, the plaintiffs in a detinue and conversion action in the Etowah Circuit Court, appeal from a judgment entered in favor of the defendant, Vivian K. Friedman, after a trial at which evidence was presented ore tenus. We affirm.
Vivian Friedman was married to Dr. Howard Friedman, Sylvia and Joseph Friedman's son. Howard and Vivian owned a house in Jefferson County, as well as a house in Rainbow City in Etowah County. Howard, an anesthesiologist in Gadsden, would stay at the Rainbow City house when he worked late or was on call at the hospital. Sylvia and Joseph lived in New York.
On February 8, 1996, Howard purchased an American Security Products Company ("AMSEC") brand safe from Byrd Lock and Key and placed it in the basement of the Rainbow City house. In this safe Howard kept his collection of firearms, as well as personal documents. On or about October 18, 1996, Joseph purchased a Mosler brand safe from Byrd Lock and Key and placed it in the basement of Howard and Vivian's Rainbow City house. Sylvia and Joseph named Howard as the executor of their respective estates, and Joseph purchased the safe to store their wills, as well as other estate-planning documents and placed it in Howard and Vivian's Rainbow City house to allow Howard access to these documents. Joseph and Sylvia gave Howard the combination for the safe.
On or about March 27, 1997, Sylvia and Joseph drove from their house in New York to Birmingham to attend the bar mitzvah of Howard and Vivian's son. According to Sylvia, she brought several items of expensive jewelry with her from New York to wear to the various functions associated with the bar mitzvah. On Sunday, March 30, 1997, Sylvia and Joseph drove from Birmingham to Howard and Vivian's house in Rainbow City, where they stayed Sunday and Monday. Sylvia claims that while she was there she placed her jewelry in manila folders and placed the folders in the Mosler safe. Specifically, Sylvia says she placed in the safe an emerald ring worth $173,088, a Concord brand gold watch worth $2,700, a pendant worth $7,300, a pair of earrings worth $4,675, and a set of five rings that had belonged to Sylvia's mother. Sylvia also placed in the safe three sheets of 1948 Israeli stamps worth $83,000. The stamps had belonged to Sylvia's father, who died in 1977, and her brother had given them to her at the bar mitzvah. Howard testified that he witnessed his parents placing these items in the Mosler safe.
On Tuesday, April 1, 1997, Sylvia and Joseph left Rainbow City for a trip to Atlanta. Their plan was to return to Rainbow City after a few days, retrieve the jewelry and stamps, and return to New York. However, while they were in Atlanta, their youngest son, an orthodontist who shares a practice with Joseph, telephoned complaining of chest pains and asked Joseph to return to New York to help with the practice. Sylvia and Joseph drove directly from Atlanta to New York without returning to Rainbow City to retrieve the jewelry and stamps they had placed in the Mosler safe.
In June 1997, Howard and Vivian were experiencing marital problems. Vivian consulted an attorney, who advised her to locate documents relating to all marital property. Vivian was unable to locate many documents relating to the marital property and presumed that they were at the Rainbow City house. On June 5, 1997, while Howard was on a rafting trip in Colorado with two of the couple's sons, Vivian went to the Rainbow City house, where she found the two safes. Vivian testified that she had never seen the safes and that she did not know that one of the safes belonged to Sylvia and Joseph. In fact, the only safe she had been aware was located in the Rainbow City house was Howard's AMSEC gun safe. Vivian contacted Ronald Jewell, a locksmith in Birmingham, and asked him to meet her at the Rainbow City house on June 6. Jewell testified that Vivian told him that the safes had been damaged when the basement flooded and that they could not be opened. Jewell met Vivian at the Rainbow City house and opened the safes for her. The combination was already dialed in the AMSEC safe, so Jewell was able to open it by picking the lock. Jewell testified that he did not attempt to see what was in the safe, but was able to discern that either rifles or guns were in the AMSEC safe. Jewell then proceeded to drill the Mosler safe and open it. Jewell did not look at anything in the Mosler safe, but he did see Vivian removing papers from the safe as he was taking his tools out of the house. According to Jewell, the safes did not appear to have any flood damage, and, given how Vivian was acting, he believed the situation to be a divorce matter.
Vivian removed the guns and ammunition from the AMSEC safe and took them back to Birmingham. She also went through the documents in the Mosler safe and removed the ones she determined related to marital assets and took them back to Birmingham to have them photocopied. When she returned to Birmingham, she telephoned the Mountain Brook police department and asked them to hold the guns for safekeeping. On June 8, 1997, Vivian returned to the Rainbow City house and replaced some of the items in the safes. She testified that she kept some items, however, "as evidence." Specifically, she kept canceled checks, which she believed documented the transfer of marital assets to Howard's immediate family, as well as items such as books on obtaining a second passport and how to transfer assets into offshore accounts.
Howard and the couple's sons returned from their rafting trip on the evening of June 8. At approximately 9:00 or 10:00 that night, Howard entered the study of the Birmingham house to use the copier and found that Vivian had inadvertently left a document that had been in one of the safes on the copier. Howard immediately left the Birmingham house and drove to Rainbow City, where he found that the safes had been entered. Howard testified that "a lot" of the contents were missing from the safes, including Joseph and Sylvia's wills and estate-planning documents, Sylvia's jewelry, and the Israeli stamps. Howard telephoned the Rainbow City police to report the entry into the safes, and a police report was made at 2:37 a.m.
Vivian testified at trial that none of the items Joseph and Sylvia claimed were missing from the Mosler safe were in the safe when she entered it and that she did not take any of the items Joseph and Sylvia claim are missing.
Subsequent to the incident that is the subject of the underlying cause of action, Howard and Vivian became embroiled in a bitter divorce, and the marriage was dissolved in 1999 or 2000.
Although a police report was prepared, no criminal charges were ever brought in relation to the unauthorized entry into the safes. Instead, Joseph and Sylvia brought this detinue and conversion action against Vivian in the Etowah Circuit Court on January 23, 1998. The trial court heard ore tenus testimony on May 27, 2003, October 2, 2003, and August 19, 2004. On July 1, 2005, the trial court entered a judgment in favor of Vivian Friedman. On July 22, 2005, Joseph and Sylvia filed a motion to alter, amend, or vacate the judgment, as well as a motion for a new trial pursuant to Rule 59, Ala. R. Civ. P. The trial court denied their motions on September 12, 2005. They appealed.
The evidence in this case was presented to the trial judge in a bench trial. "`When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.'" Smith v. Muchia, 854 So.2d 85, 92 (Ala.2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)); see also First Nat'l Bank of Mobile v. Duckworth, 502 So.2d 709 (Ala. 1987). As this Court has stated:
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