Schoenvogel v. Venator Group Retail, Inc.
Decision Date | 09 July 2004 |
Parties | Andrea K. SCHOENVOGEL, a minor, who sues by and through her mother and next friend, Ava SCHOENVOGEL; and Ava Schoenvogel, individually v. VENATOR GROUP RETAIL, INC., d/b/a Lady Footlocker; and the estate of Anthony DaSilva, deceased. |
Court | Alabama Supreme Court |
John W. Haley and Bruce J. McKee of Hare, Wynn, Newell & Newton, LLP, Birmingham; and Richard S. Jaffe and Stephen A. Strickland of Jaffe, Strickland & Drennan, P.C., Birmingham, for plaintiffs.
John J. Coleman, C. Paul Cavender, and Ashley H. Hattaway of Burr & Forman, LLP, Birmingham, for Venator Group Retail, Inc., d/b/a Lady Footlocker.
Peyton Lacy, Jr., Brian R. Bostick, and Christopher A. Mixon of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Birmingham, for the estate of Anthony DaSilva.
Pursuant to Rule 18, Ala. R.App. P., we accepted the following certified question from the United States District Court for the Northern District of Alabama:
The plaintiffs, Andrea K. Schoenvogel, a minor, who sues by and through her mother and next friend, Ava Schoenvogel; and Ava Schoenvogel, individually, and one of the defendants, the estate of Anthony DaSilva ("DaSilva's estate"), agree that this Court intended that Rule 601, Ala. R. Evid., supersede the Dead Man's Statute, § 12-21-163, Ala.Code 1975. (Schoenvogels' brief, pp. 24-28; Brief of DaSilva's estate, p. 24.) The other defendant, Venator Group Retail, Inc., d/b/a Lady Footlocker ("Venator"), does not necessarily agree, but essentially deflects the question by arguing that "[w]hether or not Rule 601 ever affected the Dead Man's Statute is really only an extraneous issue," because of Venator's perception that the Legislature has "repeatedly re-enacted the Statute subsequent to the adoption of Rule 601." (Venator's brief, p. 28.)
In 1988 this Court appointed a committee to consider the formal adoption of a body of evidence law. Professor Charles W. Gamble was appointed the reporter of the committee. In his article, "Drafting, Adopting and Interpreting the New Alabama Rules of Evidence: A Reporter's Perspective," 47 Ala. L.Rev. 1 (1995), he recounted the following history:
47 Ala. L.Rev. at 3-4 (footnotes omitted). Professor Gamble further noted:
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