Skinner v. Bevans

• Decision Date: 21 December 2012
• Docket Number: 2110147.
• Citation: 116 So.3d 1147
• Parties: Arthur Lane SKINNER v. Raymond C. BEVANS.
• Court: Alabama Court of Civil Appeals

116 So.3d 1147

Arthur Lane SKINNER

v.Raymond C. BEVANS.

2110147.

Court of Civil Appeals of Alabama.

Dec. 21, 2012.

Darlene McGough Gibson, Greenville, for appellant.

James T. Patterson of Vernis & Bowling of Southern Alabama, LLC, Mobile; and Lewis S. Hamilton of Powell & Hamilton, Greenville, for appellee.

PITTMAN, Judge.

Arthur Lane Skinner appeals from a judgment entered on a jury verdict of $35,000 in favor of Raymond C. Bevans on Bevans's assault-and-battery claim against him and from summary judgments in favor of Bevans as to seven counterclaims he asserted against Bevans. We affirm in part, reverse in part, and remand for a new trial.

Facts and Procedural History

Skinner and Bevans are neighbors in rural Butler County. Bevans's property fronts on a public road; Skinner's property is landlocked, but he has access to the public road via a right-of-way easement that runs through the property of another neighbor. Bevans's fence line is near the easement. On September 18, 2007, Bevans was on the right-of-way outside his fence spraying herbicide on weeds along the fence line when, according to Bevans, Skinner drove up, parked the pickup truck he had been driving, and stared at him. The parties differ about what happened next. According to Bevans, he turned his back on Skinner and was continuing his spraying when he heard Skinner say, “You m___ f___, I owe you this.” Skinner then struck Bevans repeatedly with a metal-tipped rake handle, injuring Bevans's head, ear, and arm. Skinner, on the other hand, claimed that Bevans walked to the pickup truck and, as the parties were exchanging words, sprayed him in the face with the herbicide, after which Skinner reached into the bed of his truck, retrieved the rake handle, and swung at Bevans to stop the spraying. There was a factual dispute at trial as to whether Skinner's easement was 25 feet wide or only 15 feet wide and—if the easement was only 15 feet wide—whether Skinner was standing on the easement during the altercation and assault.

Skinner left the scene, and Bevans called the Butler County sheriff's department. He filed a criminal complaint against Skinner, and was taken to the hospital, where his ear was stitched. Skinner was arrested the following day pursuant to a warrant charging assault in the second degree, a Class C felony, seeAla.Code 1975, § 13A–6–21. On February 26, 2008, Skinner was indicted by a Butler County grand jury for the same offense.

On September 16, 2009, Bevans filed the instant civil action against Skinner, alleging assault and battery and demanding a jury trial. On October 14, 2009, Skinner, acting pro se, filed an answer that stated, in its entirety: “I am denying all allegations in your complaint.” On June 18, 2010, Skinner was acquitted of the criminal-assault charge. On August 12, 2010, Skinner, acting through counsel, filed a motion for leave to assert counterclaims that, he said, he had not been required to assert in his answer because the counterclaims were the subject of “another pending action,” seeRule 13(a), Ala. R. Civ. P.,¹ and had “matured or [been] acquired” after he had answered the complaint, seeRule 13(e), Ala. R. Civ. P.² The trial court granted Skinner leave to amend his answer to include the counterclaims.

On January 20, 2011, Skinner asserted seven counterclaims: trespass to land; assault and battery; false imprisonment; malicious prosecution; defamation; negligence; and “emotional distress.” Skinner did not demand a jury trial on the counterclaims. Bevans denied the material allegations of Skinner's counterclaims and asserted various affirmative defenses. Bevans did not demand a jury trial on the counterclaims, and Bevans later withdrew his own demand for a jury trial on the assault-and-battery claim set forth in his complaint. Skinner objected to the withdrawal of Bevans's jury demand, and the trial court disallowed the withdrawal, pursuant to Rule 38(d), Ala. R. Civ. P.³ Skinner argued that he was also entitled to a jury trial on his counterclaims, despite his having failed to demand one, because his counterclaims arose out of the same transaction or occurrence set forth in Bevans's complaint, were not “new,” and, therefore, did not activate a new 30–day period for demanding a jury trial. The trial court rejected that argument and bifurcated the action, setting Bevans's claim for a jury trial and the counterclaims for a bench trial.

After the jury rendered a verdict for Bevans on his assault-and-battery claim, Bevans moved for a summary judgment as to Skinner's counterclaims. Skinner filed a Rule 59, Ala. R. Civ. P., motion for a new trial, arguing that the trial court had erred in instructing the jury on his duty to retreat, which duty, he said, had been abolished by § 13A–3–23(b), Ala.Code 1975. Skinner also filed a response in opposition to Bevans's summary-judgment motion, and Bevans filed a response to Skinner's Rule 59 motion. Following a hearing on both motions, the trial court denied Skinner's motion for a new trial and granted Bevans's motion for a summary judgment as to each of Skinner's counterclaims.

Skinner appeals, raising three issues: whether the trial court erred (1) in charging the jury on the law of self-defense and the duty to retreat, (2) in entering a summary judgment in favor of Bevans on each of his counterclaims, and (3) in concluding that he had waived a jury trial on his counterclaims.

Standard of Review

Each of the issues Skinner raises presents a question of law for which our review is de novo. Espinoza v. Rudolph, 46 So.3d 403, 412 (Ala.2010). An appellate court reviews de novo the trial court's interpretation of procedural rules, United States v. Elmes, 532 F.3d 1138, 1141 (11th Cir.2008), and statutes, Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003). In addition, we review a summary judgment de novo, applying the same standard of review as the trial court applied. Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 87 (Ala.2004).

The Jury Charge on Self–Defense

During a charge conference, the trial court stated that it intended to give the jury the following self-defense instruction requested by Bevans:

“In order to claim self-defense, ... Skinner must establish that he could not retreat or withdraw from the altercation in safety. If he could have retreated or withdrawn in safety then self-defense is not a defense [to] the claims of [Bevans].”

Skinner objected, and the following occurred:

“MS. GIBSON [Skinner's counsel]: He does not have to retreat.

“MR. HAMILTON [Bevans's counsel]: And why not?

“MS. GIBSON: In self-defense, use of force that is reasonable and appears to be necessary for protection against a threatened battery. Skinner did not chase after Bevans. He may stand his ground and use any force short of that likely to cause serious injury. You do not have to retreat.

“MR. HAMILTON: I believe if [you] look in the criminal code it requires you retreat.

“MS. GIBSON: It does not.

“THE COURT: Well, I will go back and look and make sure.”

The trial court gave the charge requested by Bevans. At the conclusion of the court's oral charge and before the jury retired to consider its verdict, Skinner's counsel renewed her objection to the court's charge on the duty to retreat.

In his motion for a new trial, Skinner argued, among other things, that a 2006 amendment to § 13A–2–23(b) had abolished any duty to retreat under the circumstances presented by this case. Citing Blake v. State, 61 So.3d 1107 (Ala.Crim.App.2010), and other decisions by the Court of Criminal Appeals, Skinner insisted that the trial court had erred in charging the jury on a duty to retreat. In Blake, supra, the Court of Criminal Appeals stated:

“[T]he amendment to § 13A–3–23(b), Ala.Code 1975, which removed from the defense of self-defense the duty to retreat and which allows an individual to stand one's ground, became effective June 1, 2006. Specifically, the 2006 amendment to § 13A–3–23(b), Ala.Code 1975, provides:

“ ‘ “A person who [otherwise satisfies the criteria of self-defense] in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.” ’ ”

61 So.3d at 1108–09 (quoting Williams v. State, 46 So.3d 970, 971 (Ala.Crim.App.2010)).

“[A] major change enacted by the new ‘stand your ground’ law involves incidents that occur outside of the home.... [A] century's worth of case law and statutes became obsolete with the passage of the ‘stand your ground’ legislation. Where the Alabama Code had once expressly required a duty to retreat, it has now been eliminated by [§ 13A–3–23(b) ] ....

“ ‘....’

“Whereas, in Alabama, a person was required to retreat if reasonable from an attack anywhere outside the dwelling, now that person can ‘stand his or her ground’ anywhere they have a right to be.”

Jason W. Bobo, Following the Trend: Alabama Abandons the Duty to Retreat and Encourages Citizens to Stand Their Ground, 38 Cumb. L.Rev. 339, 362–63 (2008) (footnotes omitted).

Lest there be any doubt as to the applicability of the new stand-your-ground legislation to the defense of self-defense in civil actions, the legislature made it clear that the law establishes not only an affirmative defense, but also immunity from criminal prosecution and civil action.Section 13A–3–23(d), Ala.Code 1975, provides:

“A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.”

The Court of Criminal Appeals has held that a trial court's failure to give a correct instruction on the right to stand one's ground is not harmless because the jury could have rejected the defendant's defense of self-defense based on the erroneous belief that the defendant had a duty to retreat. See Blake, 61...