Gaylord Dept. Stores of Alabama, Inc. v. Stephens
| Decision Date | 28 August 1981 |
| Citation | 404 So.2d 586 |
| Parties | GAYLORD DEPARTMENT STORES OF ALABAMA, INC. v. James W. STEPHENS. 79-688. |
| Court | Alabama Supreme Court |
Horace N. Lynn and Lynn Clardy Bright of Piel & Lynn, Montgomery, for appellant.
Clyde C. Owen, Jr. of Ball, Ball, Duke & Matthews, Montgomery, for appellee.
This is an appeal from a jury verdict and judgment awarding Stephens $36,000.00 damages in a breach of contract and conversion of property action against Gaylord, and a jury verdict and judgment against Gaylord on its counterclaim. We affirm.
James Stephens, a licensed pharmacist, entered into an agreement with Gaylord Department Stores of Alabama, Inc. on or about July 14, 1977, whereby Stephens agreed to operate a pharmacy department in Gaylord's store located on Southern Boulevard in Montgomery. The agreement and accompanying documents contained numerous provisions and conditions, including a covenant not to engage in similar employment during the length of the contract and for one year thereafter within a thirty-mile radius; an agreement to staff a registered pharmacist during all the hours Gaylord's is open for business; and, a provision waiving jury trial in any prospective action between the parties. 1 The agreement was to terminate on January 31, 1986.
Stephens spent $13,000.00 in preparing this pharmacy for business, and in October, 1978, he and his father opened another pharmacy one block away at the Super Foods Store.
The controversy centers around events occurring around Memorial Day, May 28, 1979. It is hotly disputed whether on three days prior to Memorial Day Thursday, May 24; Friday, the 25th; Saturday, the 26th the pharmacy was totally closed and unmanned in violation of the license agreement. Stephens testified that he was there and produced prescriptions showing he was there on those days. Gaylord's witnesses said that Stephens was not in the pharmacy. For Monday, the 28th, Stephens had prearranged for another pharmacist to open and operate Gaylord's Pharmacy, but the substitute did not appear. By mid-morning the next day, Tuesday the 29th, the pharmacy was still not opened, and Dorman, Gaylord's district manager, phoned Stephens and told him that he, Stephens, and not a substitute pharmacist, had better come in and operate Gaylord's Pharmacy or else it would be closed. Stephens was unable to come so Gaylord closed the pharmacy. Later that day, after a discussion with Dorman, Stephens started removing his stock inventory from Gaylord's which was completed the next day.
The security agent would not permit Stephens to remove the pharmacy cash, and he threatened to arrest him if he attempted to remove the shelving and fixtures. Stephens received a letter from Gaylord dated May 31, 1979, terminating the lease agreement "due to ... discontinuance of the conduct of ... business." Stephens's fixtures are being used by the successor pharmacist, although Stephens did not receive, from Gaylord, an offer to buy them. Stephens could not sell them to a third party buyer because he was prevented from removing them.
Before trial, the trial judge denied Gaylord's motion to strike Stephens's jury demand. At the close of Stephens's evidence, and again at the close of all evidence, Gaylord moved for a directed verdict. Those motions were denied as was Gaylord's motion for JNOV.
The issues presented for review are: (1) whether the court erred by not striking the jury demand; and (2) whether the verdict and judgment were contrary to the evidence.
(1)
Article I, § 11, Constitution 1901, provides that the right of trial by jury shall remain inviolate. Moreover, Rule 38(a), ARCP, provides that the right of trial by jury as declared by the Constitution of Alabama, or as given by statute of this State shall be preserved to the parties inviolate. While this precious right of trial by jury may be waived, was it properly waived in this particular case?
The validity of waiver of a jury trial in a contract action has been recognized in a number of jurisdictions, including Connecticut, Massachusetts, New Jersey, New York, and Ohio. See 73...
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...in contract law that applies when parties agree in advance to waive their rights to a trial by jury.“In Gaylord Department Stores of Alabama v. Stephens, 404 So.2d 586, 588 (Ala.1981), this Court articulated three factors to consider in evaluating whether to enforce a contractual waiver of ......
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