Robinson v. Kierce

• Decision Date: 21 August 1987
• Parties: Carl R. ROBINSON v. James B. KIERCE. 85-805.
• Court: Alabama Supreme Court

Page 1005

513 So.2d 1005

Carl R. ROBINSON v. James B. KIERCE.

85-805.

Supreme Court of Alabama.

Aug. 21, 1987.

George M. Higginbotham, Bessemer, for appellant.

Edward O. Conerly of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellee.

HOUSTON, Justice.

A jury found for the defendant, James B. Kierce, in this action brought by Carl R. Robinson. Robinson appeals. We affirm.

The first issue presented for review is whether the trial court erred to reversal in not permitting Robinson to amend his complaint on the day of trial. This suit was filed September 14, 1981. The case was set for hearing on all motions on June 9, 1982. The complaint contained a single count claiming fraud. A motion to dismiss was overruled, but Robinson was required to plead fraud with more specificity. The first amendment to the complaint was filed on June 23, 1982, and stated only a fraud claim. On October 13, 1983, the case was set for trial during the week of February 6 or February 13, 1984, "or as soon thereafter as a civil jury is available." On March 13, 1984, the case was continued. The case was set on August 27, 1984, and was continued to October 15, 1984. The case was set for August 1985, but continued to be reset. The case was finally set for November 4, 1985. After the case was set, Robinson, on October 25, 1985, filed an amendment to his complaint without leave of court. The amended claim for recovery was based on fraud and mispresentation. On November 1, 1985 (three days before trial) another amendment to the complaint was filed alleging negligence and amending the ad damnum to $3.5 million. After the case was called for trial, a further amendment of the complaint was served in open court alleging fraud. On the same day, a further amendment was filed containing four counts. Count one was a fraud count. Count two alleged that Kierce exceeded the authority given him by his client (the former Mrs. Robinson, a defendant in this action) with regard to settlement of a matter regarding farm property in Morgan County, Alabama. Count three alleged that Kierce's petition for an attorney fee, out of the sale proceeds of the Morgan County property, was an abuse of process of the court to "extract or extort money" from Robinson. Count four alleged that Kierce was negligent toward his former client, Mrs. Robinson. Kierce made an oral motion to strike this amendment on the grounds that the amendment came too late and prevented Kierce from having a fair and impartial trial, and to prepare for defense in light of the new and additional claims; Kierce also based his motion on Robinson's having failed to comply with Rule 15, Ala.R.Civ.P., by not obtaining leave of court to file the amendment; and Kierce assigned lack of diligence on the part of Robinson as an additional ground for his motion to strike. The trial court granted Kierce's motion to strike as to all counts except count one, which alleged fraud and misrepresentation. In this appeal, Robinson claims that the trial court erred to reversal by not allowing the amendment claiming abuse of process.

Rule 15(a), Ala.R.Civ.P., in pertinent part provides as follows:

"A party may amend his pleading once as a matter of course at any time before a responsive pleading is served, or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend at any time within thirty (30) days after it is served. Otherwise, a party may amend his pleading without leave of court but subject to disallowance on the court's own motion or motion to strike of an adverse party; but such amendments shall be freely allowed when justice so requires."

This is what is before this Court. ¹

In Alabama Farm Bureau Mutual Casualty Insurance Co. v. Guthrie, 338 So.2d 1276 (Ala.1976), this Court said "Under Rule 15, the trial judges must be given discretion to allow or refuse amendments. This Court has held that amendments are to be freely allowed and that their refusal must be based on a valid ground. Liberality of amendment does not include a situation where the trial on the issues will be unduly delayed or the opposing party unduly prejudiced." (Emphasis supplied).

The trial court did not abuse its discretion in striking the abuse of process count under the facts herein before set out. See Alabama Farm Bureau Mutual Casualty Insurance Co. v. Guthrie, supra; Burge v. Jefferson County, 409 So.2d 800 (Ala.1982); Arfor-Brynfield, Inc. v. Huntsville Mall Associates, 479 So.2d 1146 (Ala.1985); Metropolitan Life Ins. Co. v. Sullen, 413 So.2d 1106 (Ala.1982); Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 310 So.2d 469 (1975).

Robinson next contends that the trial court erred to reversal in not allowing evidence of a lawsuit by one Robert Weaver against Ester Robinson, a defendant below, involving Weaver's real estate commission on the sale of the property that is the basis for this fraud action against Kierce. This evidence was tendered to show Kierce's design and intent. The filing of a lawsuit, even as between the parties to a case, raises no presumption of any sort, certainly not a presumption of wrongdoing against one who was not a party to the lawsuit. The fact that Weaver filed a case against Ester Robinson, who is not a party to this appeal, could not possibly have any evidentiary value to prove intent or design on the part of Kierce. The complaint in a lawsuit is no more than the means of commencing an action, and the mere filing thereof does not import verity, even in the proceeding in which it was filed. A certain degree of proof is required before a plaintiff can recover. The idea that a complaint filed in one action can be introduced in another action to establish the truthfulness of the allegations in the complaint transcends our established rules of evidence. The trial court did not err in excluding this evidence.

Robinson next contends that the trial court erred to reversal in allowing the divorce decree in the divorce action between Ester Robinson and Robinson, which contained highly prejudicial matters, to go to the jury without making the deletions requested by Robinson. There is no support for this contention in the record. In response to Robinson's motion in limine, objectionable portions of the divorce decree were obliterated and an expurgated copy of the decree designated as Defendant's Exhibit No. 5, was substituted for the original and was received into evidence without objection. Kierce contended that the original, unexpurgated copy of the decree should go to the jury. The following transpired:

"THE COURT: Why don't you just put in the--you can make an evidentiary showing if you want to, or you can put in the record solely for the purpose of this matter the divorce decree. I don't want the divorce decree to go into the record as evidence for the jury to see, but you can put it in the record for the purpose of this hearing.

"MR. CONERLY: Well, in order to make the record clear, we would offer the divorce decree itself and with the Court with respect to that you want it marked or offered, or how do you want it handled?

"THE COURT: Let's mark it Exhibit A. And let's make sure the court reporter understands that that is not to go to the jury, but it is to be retained as part of the record.

"Are you offering it?

"MR. CONERLY: Yes, sir.

"THE COURT: It is admitted for that purpose.

"MR. CONERLY: And does Your Honor understand and intend the way to handle it, the way we are handling this is that it preserves our position with respect to the admissibility of the divorce decree in evidence in the case at this state. In other words, you--

"THE COURT: Otherwise, the divorce decree is not yet admissible in evidence in this case, only is admissible for the purpose of this hearing out of the presence of the jury. But it will not go to the jury unless for some reason down the road, which is not foreseen yet, it becomes admissible and is admitted into evidence in the case that will go to the jury.

"MR. CONERLY: In other words, you are saying that at this point you would sustain an objection to an offer of the divorce decree if the jury were here?

"THE COURT: That's correct. You're not waiving your objection.

"MR. CONERLY: And I don't have to make an offer in the presence of the jury." (Emphasis supplied.)

The record reveals that Exhibit A was identified as "COURT'S EXHIBIT A." Clearly marked on this was the notation "Not to go to jury." There is nothing in the record to show that Exhibit A did go to the jury except the following in the motion for new trial:

"(6) The Court committed error in allowing the divorce decree to be submitted to the jury in that the decree admittedly contained highly prejudicial matters. It was represented to the Court that various deletions had been made and the Court and plaintiff's counsel were of the opinion that these deletions had been made and the divorce decree as offered by defendant's counsel was not the same divorce decree in which deletions by the Court Reporter had been made."

This is not supported by any affidavit or testimony that appears in the record. The trial court did not grant the motion for a new trial, and we will not assume that the matter that was so carefully dealt with by the court and counsel for Kierce led to some misunderstanding or accident that permitted Exhibit A to go to the jury. The burden was on Robinson to show that this did happen, and he has not met that burden.

Robinson next contends that the trial court erred in denying his motion in limine to prevent introduction of evidence of lawsuits filed by Robinson, a practicing attorney; he says this evidence was prejudicial to him.

On the day of trial, Robinson filed an amended motion in limine in which he sought to exclude the following:

"Evidence of any litigation filed by or against Carl Ray Robinson not related to his divorce action or matters in this law suit; as, said evidence would be...