Newton v. Town of Columbia

• Decision Date: 16 May 1997
• Parties: Patricia H. NEWTON v. TOWN OF COLUMBIA, et al. 2960488.
• Court: Alabama Court of Civil Appeals

Page 1213

695 So.2d 1213

Patricia H. NEWTON v. TOWN OF COLUMBIA, et al.

2960488.

Court of Civil Appeals of Alabama.

May 16, 1997.

W. Terry Bullard of Bullard & Bullard, Dothan, for appellant.

T. Randall Lyons of Nix, Holtsford & Vercelli, P.C., Montgomery, for appellees.

ROBERTSON, Presiding Judge.

Patricia H. Newton appeals from a summary judgment in favor of Ben Armstrong, Jr.; the Town of Columbia ("the town"); and James Green, mayor of Columbia ("the mayor"), on her claims of assault, intentional infliction of emotional distress, and violation of her civil rights under color of state law (see 42 U.S.C. § 1983). We affirm in part, reverse in part, and remand.

Ms. Newton's complaint claimed that Paxton Oakley, who she alleged was her sister's husband, and Armstrong, a police officer employed by the town, had assaulted, kicked, and threatened her, thereby committing the three torts she alleged. Ms. Newton also claimed that Armstrong had alleged that he was acting under the orders of the mayor. Ms. Newton sought compensatory and punitive damages from Oakley, Armstrong, the town, and the mayor. Armstrong, the town, and the mayor answered, denying Ms. Newton's claims.

Armstrong, the town, and the mayor jointly moved for a summary judgment, supporting their motion with Armstrong's affidavit, the pleadings, and a brief. Ms. Newton filed a response, supported by her own affidavit. On November 15, 1996, the trial court entered a partial summary judgment in favor of Armstrong, the town, and the mayor on all counts. The trial court made that judgment final, pursuant to Rule 54(b), Ala.R.Civ.P. Ms. Newton's claims against Oakley remain pending in the trial court.

Ms. Newton appealed to the Alabama Supreme Court; that court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Rule 56, Ala.R.Civ.P., sets forth a two-tiered standard for determining whether to enter a summary judgment. In order to enter a summary judgment, the trial court must determine: 1) that there is no genuine issue of material fact, and 2) that the moving party is entitled to a judgment as a matter of law. In determining whether a summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant. Long v. Jefferson County, 623 So.2d 1130, 1132 (Ala.1993). We note that Rule 56 is to be read in conjunction with the "substantial evidence rule" (§ 12-21-12, Ala.Code 1975). Hurst v. Alabama Power Co., 675 So.2d 397, 398 (Ala.1996). In order to defeat a defendant's properly supported motion for summary judgment, the plaintiff must present "substantial evidence," i.e., "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." Id. (quoting West v. Founders Life Assurance Co., 547 So.2d 870, 871 (Ala.1989)). That said, however, we further note that "an appellate court will not presume error and will affirm the judgment appealed from if [it is] supported on any valid legal grounds." Walnut Equip. Leasing Co. v. Graham, 532 So.2d 655, 655 (Ala.Civ.App.1988) (citing Tucker v. Nichols, 431 So.2d 1263 (Ala.1983)).

The evidence of record, viewed most favorably to Ms. Newton, is as follows. On February 26, 1993, Armstrong received a dispatch radio call to meet with Sheila Oakley at her residence. Ms. Oakley, who is Ms. Newton's sister, requested that Armstrong accompany her to the house of another sister, Sarah Botts; Ms. Oakley stated that it was "her turn to have custody of her mother" and that an attorney had advised her to contact a police officer to be a witness to the exchange of custody. Paxton Oakley and Sheila Oakley then proceeded to the Botts residence, and Armstrong followed in his police car.

When the Oakleys and Armstrong arrived at the Botts residence, Ms. Newton, Ms. Botts, and their sister Mary Kirkland went onto the front porch and asked Armstrong what he was doing on the property. Armstrong replied that he was there to assist Ms. Oakley in picking up her mother, and that he "was not going anywhere" because "that is what Mayor James Green had told him to do." Armstrong also stated that he was not on duty, but that "when you work for the city [i.e., the town] you do what they tell you to do." Ms. Botts told Armstrong to leave because she was afraid that his presence would upset her mother; she also claimed that Armstrong "had no business or jurisdiction" to be present. Ms. Newton asked Ms. Oakley why she had needed to bring a police officer, and Ms. Oakley replied that although she did not want any trouble, she wanted to pick up her mother, and that she knew that if she had come by herself, Ms. Newton and her sisters would cause trouble.

Mr. Oakley then attempted to force open the door of the Botts residence, but was told that because Ms. Newton's mother feared police officers, the Oakleys could not get her until the police officer left. Ms. Newton's mother then emerged from the house briefly and began trembling, asking whether Armstrong was there to arrest her. Ms. Kirkland ushered Ms. Newton's mother back into the residence, and Ms. Newton told Ms. Oakley and Armstrong that her mother was not coming out of the house until Armstrong removed himself and his car. Meanwhile, Mr. Oakley and another man, LaDon Hasty, went from the porch to Mr. Oakley's car. Ms. Oakley requested that Armstrong contact the Henry County Sheriff's Department, and Armstrong moved his patrol car away from the Botts residence and attempted to contact the Henry County Sheriff's Department.

Mr. Oakley and Mr. Hasty began to argue, and then to fight, prompting Ms. Newton to run between them and grab Mr. Hasty's shirt. After Ms. Newton told Mr. Oakley to leave, Ms. Oakley hit Ms. Newton in the face, and the two women began fighting. As Mr. and Ms. Oakley fought with Ms. Newton, Armstrong intervened, grabbing Ms. Newton by her left arm. Ms. Newton, now on the ground but continuing to hold on to Ms. Oakley, asked Armstrong to "get Paxton and Sheila off of me." Armstrong, holding a "blackjack," told Ms. Newton that unless she let go of Ms. Oakley he would strike her with it. Armstrong also placed his boot on Ms. Newton's shoulder and twisted it, causing severe pain, and Ms. Newton pleaded with him to turn her loose. Armstrong told her to calm down and helped her from the ground. Armstrong threatened to arrest Ms. Newton, but did not because Henry County sheriff's deputies arrived and took charge of the matter. Ms. Newton was subsequently treated for her injuries at a local medical clinic.

Finally, for purposes of this appeal, we take judicial notice that the town has a population of 922 people according to the 1990 federal census and that it is located within Houston County. Pickens County v. Jordan, 239 Ala. 589, 590, 196 So. 121, 122 (1940).

In her brief on appeal, Ms. Newton raises several issues that she believes may have influenced the trial court to grant the defendants' motion for summary judgment. She claims that (1) the trial court erred in concluding that Armstrong and the mayor were immune from liability; (2) the trial court erred in finding Armstrong and the mayor immune under the provisions of § 11-47-190, Ala.Code 1975 ¹; and (3) the trial court erred in holding that § 6-5-338, Ala.Code 1975, retrospectively applied to render Armstrong and the mayor immune.

We note that none of these issues challenges the propriety of the summary judgment in favor of the town, and that the only reference to the town's liability in Ms. Newton's argument is the unsupported statement that "[w]hile the Town ... might have immunity from the assault count pursuant to Section 11-47-190 ... the Appellant contends that the town ... would enjoy no such immunity for violation of her constitutional rights and violation of 42 [U.S.C. § ] 1983." "This court will address on appeal only those issues presented and for which supporting authorities have been cited to this court." Birmingham Coal & Coke Co. v. American Resources Ins. Co., 627 So.2d 421, 422 (Ala.Civ.App.1993). By failing to raise any error and to provide supporting authorities with respect to the judgment in favor of the town, Ms. Newton has waived any error therein, and we address only the propriety of the summary judgment in favor of Armstrong and the mayor.

We now consider the liability of Armstrong and the mayor. Although in the trial court both Armstrong and the mayor asserted the defense of qualified immunity, the particular facts of this case prevent the applicability of this defense. With respect to immunity from liability on Ms. Newton's state law claims, we note that our supreme court has stated that "[c]ity officials acting within the general scope of their authority have a qualified or discretionary immunity and are not subject to tort liability for an administrative act or omission." Ex parte City of Birmingham, 624 So.2d 1018, 1021 (Ala.1993). Similarly, with respect to immunity from suit and from liability under 42 U.S.C. § 1983, "[t]he first step of the analysis is to determine whether the officials were acting within their discretionary authority." Dolihite v. Maughon, 74 F.3d 1027, 1040 n. 21 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 185, 136 L.Ed.2d 123 (1996).

However, we cannot conclude as a matter of law that Armstrong and the mayor acted within their authority. As we have stated, the town is located in Houston County, and the town's law enforcement authority is thus limited to territory lying either within Houston County (see Ala.Code 1975, § 15-10-1) or outside Houston County but within a zone extending one and one-half miles from the town limits (see Ala.Code 1975, § 11-40-10; White v. City of Decatur, 225 Ala. 646, 648, 144 So. 873, 874 (1932)). While Armstrong's affidavit states that the incident occurred within the town's police jurisdiction, Ms. Newton's affidavit denies this and...