Thomas v. Black Mark 2, LLC (In re Teal)

• Decision Date: 09 April 2021
• Docket Number: 1180877
• Citation: 336 So.3d 165
• Parties: EX PARTE Dalton TEAL (In re: Paul Thomas v. Black Mark 2, LLC, d/b/a Black Market Bar & Grill; Dalton Lee Teal; George Cowgill; and Elise Yarbrough)
• Court: Alabama Supreme Court

336 So.3d 165

EX PARTE Dalton TEAL(In re: Paul Thomas

v.Black Mark 2, LLC, d/b/a Black Market Bar & Grill; Dalton Lee Teal; George Cowgill; and Elise Yarbrough)

1180877

Supreme Court of Alabama.

April 9, 2021

Christopher H. Daniel of Sheffield & Lentine, P.C., Birmingham, for petitioner.

Frederick A. Erben of Beddow, Erben & Bowen, PA, Birmingham; and Raymond L. Pharo, Jr., Birmingham, for respondent.

PER CURIAM.

Dalton Teal, a defendant in a personal-injury action pending below, petitions this Court for a writ of mandamus directing the Jefferson Circuit Court to vacate its partial summary judgment in favor of the plaintiff, Paul Thomas, pursuant to which it struck Teal's affirmative defenses of self-defense and statutory immunity. We grant the petition and issue the writ.

Facts

In the late evening of December 31, 2012, and into the early morning of January 1, 2013, Thomas, accompanied by his friend Brian Pallante,¹ was present at Black Market Bar & Grill ("Black Market"), a bar in Birmingham. On that occasion, an altercation arose between Pallante and Teal on the Black Market premises. As recounted by Teal in subsequent deposition testimony, during that altercation, Pallante, who is physically larger than Teal, first "shoved [Teal] down" in the outside smoking area of the bar and then, approximately one minute later, "lifted [Teal] up" by the neck, "slammed" Teal against an interior wall of the bar, and proceeded to "chok[e]" Teal for approximately 20 to 30 seconds. According to Teal, he feared for his personal safety during those events. The altercation resulted in Pallante and Teal being separated by Black Market staff; Pallante and Thomas then departed the premises via the front door, and Teal left via the back door.

Following his exit, Teal waited on a nearby bench for friends who had accompanied him. Within minutes of their exit from Black Market, Pallante and Thomas again encountered Teal, who looked up from his cellular telephone to see that both Pallante and Thomas "were coming at [him]." At that time, Pallante allegedly initiated another confrontation. As described by Teal, Pallante grabbed Teal by the neck, slammed Teal over the back of the bench to the ground, and again began choking him. Thomas's later testimony stated that the two men appeared to be "trying to finish what had been started ... inside [Black Market]."

During that struggle, Pallante was described as being to the side of Teal but with his upper body located over Teal. According to Teal, Thomas, who Teal denied having previously seen at any point during the events of that evening and who is also physically larger than Teal,² "came at [Teal] when [Pallante] did" and, according to Teal, remained "leaned over" from the waist with his hands on his knees "right beside [Pallante]." Thomas, who admittedly approached Pallante and Teal in a purported attempt to separate them, also admitted that he remained within "arm's length" -- or, as Teal estimated, "a couple of feet" from Teal's legs -- of the struggling Teal and Pallante. Although acknowledging that Thomas never spoke to or touched him, Teal testified that he "felt threatened just by somebody else being there."

According to Teal, while Pallante was on top of him, his arms were flailing and he was unable either to breathe or to speak. Thomas similarly confirmed that Teal was on his back on the ground with Pallante above him and that Pallante was obviously "getting the better of" Teal in the struggle. Teal testified that, as Pallante continued to choke him, he again feared for his life. He indicated that, after having been choked for approximately 15 to 20 seconds, he realized that he was not going to be able to get up and became "afraid that they were going to kill [him]." At that point, Teal drew a pistol and fired a single shot in an effort "to get them off of [him]." Teal, who indicated that his ability to aim his weapon was affected by the fact that Pallante had "[Teal's] arm pinned down," missed Pallante, at whom Teal was apparently aiming, but the shot struck Thomas in the abdomen, seriously injuring him.

Thomas's testimony confirmed that he was standing near Pallante when he was shot; however, Thomas was unable to recall whether he was actually moving toward Pallante and Teal at that time. He estimated that Pallante and Teal had been struggling for around 37 seconds at the time Teal fired the shot.

Following an investigation of the above-described events by the Birmingham Police Department, the Jefferson County District Attorney declined to bring criminal charges against Teal based on the conclusion that Pallante's actions had "led to the shooting that injured [Thomas]."

Procedural History

Thomas filed a personal-injury action against Teal and other defendants. As to Teal, Thomas's complaint alleged claims seeking to recover damages for assault and battery, negligence, and wantonness. In his answer, Teal pleaded various affirmative defenses, including self-defense and the related defense of statutory immunity provided in § 13A-3-23, Ala. Code 1975.

Following pretrial discovery, Thomas filed a motion "to dismiss" several of the affirmative defenses included in Teal's answer, including those premised on a theory of self-defense.³ Specifically, as to Teal's claim of self-defense, Thomas asserted:

"Any claim that Teal acted in self-defense or is afforded immunity from criminal or civil liability for the injuries and damages he inflicted on Thomas is erroneous. Teal has no justifications or excuses of self-defense or collateral defenses claimed with reference to Thomas because there is no defense for injuring an innocent victim."

In response, Teal argued that, because the evidence supported a reasonable inference that Thomas was also "coming at [Teal]" with Pallante and was present for and involved in the physical altercation between Teal and Pallante, both Thomas's involvement in that altercation and Teal's entitlement to the defenses of self-defense and statutory immunity were questions to be resolved by the trier of fact.

The trial court entered a lengthy order "striking" certain of Teal's defenses, including those dependent on Teal's assertion that he had acted in self-defense, which were, specifically, his 6th and 13th affirmative defenses. As a result, Teal filed the instant mandamus petition; this Court subsequently ordered answers and briefs.

Standard of Review

"This Court has stated:

" ‘Mandamus is an extraordinary remedy and will be granted only where there is "(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." ’

" Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003) (quoting Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala.1991) ). A trial court's disallowance of a party's affirmative defense is reviewable by a petition for a writ of mandamus. See Ex parte Neely Truck Line, Inc., 588 So. 2d 484 (Ala. Civ. App. 1991)."

Ex parte Buffalo Rock Co., 941 So. 2d 273, 277 (Ala. 2006). Because the disallowance of Teal's affirmative defenses was by a partial summary judgment, see note 3, supra, we review the trial court's judgment de novo:

" ‘ "This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74 (Ala. 2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d 949, 952-53 (Ala. 2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989) ; Ala. Code 1975, § 12-21-12. ‘[S]ubstantial evidence is 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.’ West v. Founders Life Assur. Co. of Fla., 547 So. 2d 870, 871 (Ala. 1989)." ’

" Prince v. Poole, 935 So. 2d 431, 442 (Ala. 2006) (quoting Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala. 2004) )."

Brown v. W.P. Media, Inc., 17 So. 3d 1167, 1169 (Ala. 2009).

Discussion

In his petition, Teal argues that he presented substantial evidence indicating that he acted in legally justified self-defense, as defined by § 13A-3-23, and that he was entitled to have a jury, rather than the trial court on a motion for a partial summary judgment, determine the issue. Teal further contends, based on his purported showing of self-defense, that he is also entitled to have the jury determine whether he is statutorily immune from the civil judgment Thomas seeks. As to both arguments, we agree.

Section 13A-3-23(a) provides, in pertinent part:

"(a) A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he or she may use a degree of force which he or she reasonably believes to be necessary for the purpose. A person may use deadly physical force, and is legally presumed to be justified in using deadly physical force in self-defense ... if the person reasonably believes that another person is:

"(1) Using or about to use unlawful deadly physical force."

(Emphasis added.) Further, § 13A-3-23(d)(1) provides: "A person who uses...