Veteto v. SWANSON SERVICES CORP.

• Decision Date: 30 December 2003
• Citation: 886 So.2d 756
• Parties: Ronald D. VETETO v. SWANSON SERVICES CORPORATION.
• Court: Alabama Supreme Court

886 So.2d 756

Ronald D. VETETO v. SWANSON SERVICES CORPORATION.

1021278.

Supreme Court of Alabama.

December 30, 2003.

Rehearing Denied March 12, 2004.

Ronald D. Veteto, pro se.

Richard E. Smith, H. Spence Morano, and Jessica K. Stetler of Christian & Small, LLP, Birmingham, for appellee.

HARWOOD, Justice.

On May 29, 2002, Ronald D. Veteto ("Veteto") sued Swanson Services Corporation ("Swanson") and, "in both their individual and official capacities," Michael Haley, commissioner of the Alabama Department of Corrections ("DOC"); Billie Mitchem, warden of the William E. Donaldson Correctional Facility, a prison operated under the auspices of DOC and located in Bessemer, Alabama; Hurbert Etheridge, a captain at Donaldson; and Officer Marion C. Espy, a correctional officer supervisor II at Donaldson (Haley, Mitchem, Etheridge, and Espy are hereinafter referred to collectively as the DOC defendants). The trial court entered a summary judgment in favor of the DOC defendants and dismissed for want of prosecution the claims against Swanson. We affirm.

Veteto, an inmate at Donaldson, alleged in his complaint that he had completed Swanson order forms distributed to inmates by Donaldson employees for the purpose of selecting items, to be paid for by his parents, available to inmates under Swanson's "Holiday Package Program." The order forms represented that orders received by November 13, 2000, would be delivered between December 11 and December 22, 2000. Veteto's parents subsequently completed their portion of the forms and mailed them to Swanson along with an "official" bank check made out to the order of Swanson in the amount of $158.68. Veteto did not receive his holiday packages during the promised time frame; they were finally delivered on January 5, 2001. Donaldson employees checked the contents of the packages, but, according to Veteto, they "rushed the process," comingling the contents, thereby failing to detect "some of the shortages and overages" that Veteto subsequently determined to exist in the packages. Veteto determined that a number of items were missing, that some items were included that he had not ordered, and that various items of candy and snack foods were damaged or degraded. Veteto concluded that the total value of the shortages was $40.09.

Veteto alleges that he made numerous, but unsuccessful, attempts to locate Swanson and communicate with it about the situation, and that he also sent written communications about the situation to various Donaldson employees and to Commissioner Haley. Etheridge finally reported to Veteto that Donaldson employees were "in the process of resolving this now"; that the full amount of Veteto's purchases would be refunded; and that Donaldson would remedy the problem.

In addition to making numerous factual assertions against Swanson and asserting a variety of theories of legal liability against it, Veteto asserted that the DOC defendants "conspired with and/or aided and abetted" Swanson in its breach of contract and tortious wrongdoings. Veteto sought actual damages for breach of contract in the amount of $40.09; $20,000 in compensatory damages against Swanson "for hungry, sickness, mental pain and anguish, and emotional distress"; $10,000 in compensatory damages against the DOC defendants "for conspiring with and aiding and abetting Swanson"; and $50,000 in punitive damages against Swanson and the DOC defendants.

On September 4, 2001, the DOC defendants filed a motion to dismiss, or, alternatively, for a summary judgment. The motion was accompanied by the affidavit of Espy, who attested that, after he became aware of the problems with Veteto's packages, he had checked with Swanson and had been told that it was "working on resolving all disputes concerning refunds" and that "Veteto's name was on the list for a refund." Espy gave Veteto Swanson's address so that his parents could correspond directly with Swanson. The DOC defendants argued various legal points in a supporting brief, including their immunity from suit and that there had been no "material breach of contract."

Veteto made filings in opposition to the DOC defendants' summary-judgment motion, and there was a succession of responses and motions and other filings between him and the DOC defendants. Given our disposition of this appeal as to the DOC defendants, we will note hereinafter only those filings relating to or made by Swanson.

On September 25 Swanson filed its answer. Shortly after it filed its answer, it filed its responses to Veteto's requests for admissions. Swanson subsequently filed its responses to Veteto's first set of interrogatories and his "first request of documents." Veteto filed objections to the DOC defendants' summary-judgment motion, and on November 28, 2001, the trial court entered its order, finding that the DOC defendants were entitled to immunity, on the grounds that Veteto "failed to present any evidence which would create a genuine issue of material fact on the question of whether [the DOC defendants] acted willfully, fraudulently, maliciously, or in bad faith" and therefore were not entitled to immunity. The trial judge later denied Veteto's motion to set aside that order. Subsequently, Veteto unsuccessfully petitioned the Court of Civil Appeals for a writ of mandamus, sought a rehearing as to its denial of the writ, petitioned this Court for a writ of mandamus, and sought a rehearing of its denial of the petition.

On December 9, 2002, on Swanson's motion, the trial court dismissed the case with prejudice for want of prosecution. Veteto filed a motion to vacate that order, which the trial judge denied on February 16, 2003.

Fatal to our consideration of Veteto's arguments in his appellate briefs concerning alleged trial court errors relating to the DOC defendants is the content of his handwritten notice of appeal. The front side of the notice of appeal reads, in its entirety, as follows:

"Notice is hereby given that the Plaintiff, Ronald D. Veteto, appeals to the Supreme Court of Alabama from the dismissal of this civil action with prejudice for want of prosecution, entered in this action by the trial court December 9, 2002, and from the denial of Veteto's Rule 59, Ala. R. Civ. P., postjudgment motion entered February 16, 2003.

"Veteto further moves this court for leave to proceed on this appeal in forma pauperis pursuant to Rule 24, Ala. R.App. Proc., and to direct the clerk of court to prepare and transmit the entire clerk's record to the appellate court. In support of this motion Veteto submits the following affidavit.

"[See Reverse Side]"

(Emphasis in original.) The reverse side of the notice of appeal contains Veteto's affidavit relating to his request "to proceed on appeal without being required to prepay fees, costs or give security therefor." It also contains the following statements:

"[T]he issues which I desire to present on appeal are the following: (1) Plaintiff has been denied effective and meaningful access to the courts and a full and fair opportunity to present and prove his evidence, arguments and claims. (2) The trial judge denied Veteto the right to any and all discovery. (3) The trial judge pretermitted and never ruled on numerous critical and pivotal plaintiff motions. (4) The trial judge refused to recuse himself."

In Edmondson v. Blakey, 341 So.2d 481 (Ala.1976), this Court addressed a similarly structured notice of appeal. Edmondson sued Blakey and the Aetna Casualty Company. On September 5, 1975, the trial court granted Aetna's motion for a summary judgment. The case proceeded to trial against Blakey, resulting in a verdict in his favor. A judgment was rendered on that verdict on September 30, 1975. Edmondson filed a motion for a new trial, which was denied on November 25, 1975. He thereafter timely filed the following notice of appeal:

"`NOTICE OF APPEAL TO THE COURT OF CIVIL APPEALS OF ALABAMA "`WADE Q. EDMONDSON In the Circuit Court of Autauga County "`Appellant Civil Action No. 3750 "`Vs. September 30, 1975 Date of Judgment &amp "`K.E. BLAKEY November 25, 1975 "`Appellee Post Judgment Order

"`Notice is hereby given that Wade Q. Edmondson appeals to the above-named court from the final judgment and the order dismissing his Motion for a New Trial entered in this cause.

"`Security for costs of appeal is filed herewith this Notice of Appeal.'"

341 So.2d at 482-83.

This Court determined that the notice of appeal did not serve to effect an appeal of the September 5, 1975, summary judgment entered in favor of Aetna. The Court gave the following rationale for that conclusion:

"Aetna insists that the first notice it received which in anyway indicated that the trial court's action on its motion for summary judgment was being challenged was when its attorney, who also represented Mr. Blakey, received a copy of Edmondson's brief in this case. There is nothing in the notice of appeal to indicate that Aetna is an appellee; and it affirmatively indicates that the judgments appealed are those dated September 30, 1975, and November 25, 1975, and are described as the final judgment and order dismissing his motion for a new trial. These judgments related only to the defendant Blakey. The trial court's judgment granting the motion for summary judgment at Aetna's request was entered September 5, 1975. That judgment is not alluded to in any manner in the notice of appeal and only Blakey is referred to as an appellee. The notice does not even contain the traditional `et al.' to indicate multiple appellees.

"Our [Ala. R.App. P.] 3(c), like its federal counterpart, provides for a simple notice of appeal specifying the party or parties taking the appeal. The rule says that the notice `... shall designate the judgment, order or part thereof appealed from ...' The federal courts have been very liberal in entertaining appeals even where the notice fails to comply literally with the requirements of Rule 3(c). The test for dismissal for failure to

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