Thompson Properties 119 AA 370, Ltd. v. Hide, No. 1021411 (AL 7/9/2004)

Decision Date09 July 2004
Docket NumberNo. 1021411.,1021411.
PartiesThompson Properties 119 AA 370, Ltd., and Thompson Properties 123 AA 370, Ltd. v. Birmingham Hide and Tallow Company, Inc.
CourtAlabama Supreme Court

Appeal from Jefferson Circuit Court (CV-97-4158).

HARWOOD, Justice.

On July 9, 1997, Thompson Properties 119 AA 370, Ltd., and Thompson Properties 123 AA 370, Ltd. (hereinafter "the Partnerships"), sued Birmingham Hide and Tallow Company, Inc. (hereinafter "Hide"), and Eastern Valley Trading Company (hereinafter "Eastern"), in the Jefferson Circuit Court. The Partnerships appeal from a judgment in favor of Hide implementing a jury verdict. We affirm.

The Partnerships, as creditors of Eastern's sole shareholder and president, Ronald L. Rockhill, sought to have certain transfers of property set aside pursuant to the Alabama Uniform Fraudulent Transfer Act ("the AUFTA"), Ala. Code 1975, § 8-9A-1 et seq., on the theory that the properties had been transferred fraudulently. The Partnerships sought to obtain a judgment declaring that Eastern was the alter ego of Rockhill, that a conspiracy existed to defraud the Partnerships, as creditors of Rockhill, and that the transfer of certain assets from Eastern to Hide were fraudulent and in violation of the Partnerships' interests as creditors. The Partnerships sought compensatory damages, as measured by the value of the properties Eastern had transferred to Hide, and punitive damages; the Partnerships also sought to have constructive and equitable trusts imposed on their behalf on any property of Eastern that Hide still possessed as a result of Hide's transaction with Eastern and Rockhill.

On August 26, 1997, Hide answered the complaint and asserted as an affirmative defense that it was a bona fide purchaser for value of the property received from Eastern. Because Eastern did not answer the complaint, the trial court, on October 1, 1997, entered a default judgment against it; that judgment stated, in pertinent part:

"That at all times material to this action, Defendant [Eastern] was the alter ego and mere instrumentality of [Rockhill], and it is further,

"ORDERED, ADJUDGED, and DECREED that, [Eastern] is liable to Thompson Properties 119 AA 370, Ltd., for the full amount of its non-dischargeable judgment against [Rockhill] entered by the U.S. Bankruptcy Court for the Northern District of Alabama in Adversary Proceeding No 92-00130 in In re Ronald Loren Rockhill, Sr. (Case No. 91-09809-RCF-7) in the amount of $74,295.32, plus interest thereon at the statutory rate from the date of entry of said non-dischargeable judgment, and judgment is hereby entered of said non-dischargeable judgment, and judgment is hereby entered on behalf of Thompson Properties 119 AA 370, Ltd., and against [Eastern] in said amount; and it is further,

"ORDERED, ADJUDGED and DECREED that, [Eastern] is liable to Thompson Properties 123 AA 370, Ltd., for the full amount of its non-dischargeable judgment against [Rockhill] entered by the U.S. Bankruptcy Court for the Northern District of Alabama in Adversary Proceeding No. 92-00130 in In re Ronald Loren Rockhill, Sr. (Case No. 91-09809-RCF-7) in the amount of $39,465.19, plus interest thereon at the statutory rate from the date of entry of said non-dischargeable judgment, and judgment is hereby entered on behalf of Thompson Properties 123 AA 370, Ltd., and against [Eastern] in said amount ...."

On October 6, 1999, the Partnerships filed a motion for a summary judgment on their claims against Hide; on October 28, 1999, Hide filed its opposition to the Partnerships' summary-judgment motion, arguing as follows:

"For a plaintiff to have a transfer set aside as fraudulent, there must be proof of three essential elements: (1) a creditor who was defrauded, (2) the debtor intended to defraud that creditor, and (3) the debtor conveyed property out of which the creditor could have realized his claim. Because [the Partnerships] in this case have failed to come forward with sufficient evidence to prove any of these elements, there exist genuine issues of material fact which make a summary judgment improper."

On August 29, 2000, Hide amended its answer to add the affirmative defense that the money it gave Rockhill on the sale of the properties was a "gift."

On October 13, 2000, Hide filed what it labeled as a "renewed" motion for a summary judgment, arguing:

"A fraudulent transfer action must be pursued by a judgment creditor against its debtor. In this case, the [Partnerships'] judgment creditor [sic] was [Rockhill]. [Eastern] was the transferor, not [Rockhill]. The fact that [the Partnerships] contend that [Rockhill] and [Eastern] were alter egos of each other is immaterial, regardless of the truth of the matters asserted. As specifically announced by Folmar [& Assocs. LLP v. Holberg, 776 So. 2d 112 (Ala. 2000)], the fact that a judgment creditor may allege that assets were being controlled by another party is insufficient to prove a fraudulent transfer. The action lies only against assets actually conveyed by the judgment debtor. For this reason, summary judgment is due to be granted in favor of [Hide] on the ground that [Eastern], not [Rockhill,] was the transferor. The only claim held by [the Partnerships] at the time of the transfer in this case was against their Debtor, [Rockhill]."

On October 17, 2000, the trial court issued an order granting Hide's motion for a summary judgment on all counts asserted against it by the Partnerships, based on Folmar & Associates LLP v. Holberg, 776 So. 2d 112 (Ala. 2000), and dismissing the case with prejudice. The Partnerships appealed the summary judgment, and this Court reversed, stating, in pertinent part:

"The trial court incorrectly relied on Folmar & Associates LLP v. Holberg, 776 So. 2d 112 (Ala. 2000), in entering the summary judgment for [Hide]. As we have noted above, because the trial court determined that [Eastern] was the alter ego and a mere instrumentality of Rockhill when the Eastern Valley Properties were transferred to [Hide], the transfer was, for purposes of the AUFTA, `made by a debtor.' Therefore, the holding in Folmar does not control this case. Moreover, the transfers in Folmar involved loans to a debtor by a third party, not, as in the present case, a transfer of property by an entity that was the debtor's alter ego and was therefore legally the debtor. Thus, we hold that the trial court erred in granting [Hide's] summary-judgment motion."

Thompson Props. v. Birmingham Hide & Tallow Co., 839 So. 2d 629, 634 (Ala. 2002).

The case was tried before a jury. On January 31, 2003, the jury returned a verdict for Hide; the trial court subsequently entered a judgment on that verdict. The Partnerships filed a postjudgment motion for a judgment as a matter of law ("JML"), and a motion for a new trial. The Partnerships argued that they were entitled to a JML on their claims of fraudulent transfer based on the application of law to the undisputed facts; alternatively, they argued that they were entitled to a new trial because of alleged errors in the jury instructions and alleged juror misconduct. They submitted affidavits of jury members in support of the juror—misconduct claim. Hide filed an opposition to the motions and also moved to strike the affidavits of the jury members. On April 10, the trial court granted Hide's motion to strike the affidavits, and denied both postjudgment motions. It provided the following detailed analysis of its rationale for striking the affidavits:

"[The Partnerships], relying on affidavits secured from certain members of the jury, argue to the Court that the nature of the juror misconduct consisted of the jury foreperson taking notes during the course of the Court's oral charge and recharge of the jury regarding the elements of proof necessary for [the Partnerships] to establish their case of liability against [Hide], and then reading those notes to her fellow members of the jury[,] causing them to cast their vote for [Hide].

"The Court, during the course of the trial[,] admonished the jury, according to APJI [Alabama Pattern Jury Instructions] 1.15 that it would permit jurors to take notes during the course of trial but that the notes were for the benefit of the note taker to be used as an aid to the note taker[']s memory and not to be shared with other members of the jury. The Court also instructed, consistent with APJI 1.15, that a juror's notes are not authoritative regarding their subject matter, and that if there were a conflict between the contents of a document introduced into evidence or testimony and the juror note, that the actual evidence was to be followed rather than the juror note.

"The charge of juror misconduct with regard to note taking, however, does not concern the note taker's recollection of the evidence, but her recollection of the Court's charge to the jury.

"....

"Regarding the new grounds stated of juror misconduct, the Alabama Rules of Evidence addresses this particular inquiry. Rule 606(b) [Inquiry into Validity of Verdict or Indictment] states that jurors are not competent witness[es] to offer testimony which would impeach their own verdict, except on the question of whether `extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.' [Hide's] motion to strike juror affidavits presented by [the Partnerships] and indeed [the Partnerships'] motion on these grounds rests on the issue of whether the jury's foreperson's notes constitute `extraneous prejudicial information.'

"Explaining the meaning of `extraneous prejudicial information', the Court in Sharrief v. Gerlach, 798 So. 2d 646 (Ala. 2001), wrote:

"`This Court has stated:

"`"Generally, affidavits are inadmissible to impeach a jury's verdict. An affidavit showing that extraneous facts influenced the jury's deliberations is admissible; however, affidavits concerning `the debates...

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