Vincent v. First Alabama Bank

• Citation: 883 So.2d 1231
• Parties: Donald J. VINCENT v. FIRST ALABAMA BANK and Betty Vincent.
• Decision Date: 20 December 2002
• Court: Alabama Court of Civil Appeals

883 So.2d 1231

Donald J. VINCENT v. FIRST ALABAMA BANK and Betty Vincent.

2018.

Court of Civil Appeals of Alabama.

December 20, 2002.

Rehearing Denied February 7, 2003.

William J. Baxley and David McKnight of Baxley, Dillard, Dauphin & McKnight, Birmingham, for appellant.

R. Cooper Shattuck and Jane L. Calamusa of Rosen, Cook, Sledge, Davis, Cade & Shattuck, P.A., Tuscaloosa, for appellee First Alabama Bank.

MURDOCK, Judge.

Donald J. Vincent ("Vincent") appeals from a summary judgment entered by the Tuscaloosa Circuit Court in favor of First Alabama Bank ("the bank") and Betty Vincent following a remand by this court. In Vincent v. First Alabama Bank, 770 So.2d 86 (Ala.Civ.App.1998) ("Vincent I"), we set forth the procedural history giving rise to those previous appeals:

"Donald Vincent sued First Alabama Bank and Betty Jo Vincent, his wife, alleging negligence, breach of contract, conversion, and wantonness claims. Vincent alleged that he had rented two safe deposit boxes from the bank and had placed $500,000 in cash and certificates of deposit in the boxes. However, he claims that when he opened the boxes on November 21, 1991, the boxes were empty. Vincent alleges that Betty Jo Vincent, his wife, gained unauthorized access to the boxes and removed the money. The bank filed a cross-claim against the wife.

"A jury returned a verdict in favor of Vincent against the bank on the negligence claims and against the wife on the conversion claim, awarding him $10,000 in damages. The jury found in favor of the bank on Vincent's breach of contract and wantonness claims. The jury found in favor of the bank on its cross-claim against the wife and awarded it $10,000. Thereafter, Vincent filed a motion for a new trial and the bank renewed its earlier motion for a judgment as a matter of law. The trial court denied both motions. Vincent and the bank appealed."

770 So.2d at 88. In Vincent I, this court affirmed the trial court's denial of Vincent's new-trial motion, which had asserted that that court had improperly refused to admit certain evidence; we also affirmed the trial court's denial of the bank's renewed motion for a JML (see Rule 50(b), Ala. R. Civ. P.), which had asserted, among other things, that a release appearing on the form that Vincent had signed when he closed the safety-deposit boxes¹ barred his claims against the bank as a matter of law.

Vincent subsequently sought certiorari review of our affirmance in Vincent I of the trial court's denial of his new-trial motion. In Ex parte Vincent, 770 So.2d 92 (Ala.1999) ("Vincent II"), the Alabama Supreme Court reversed this court's judgment affirming of the trial court's denial of Vincent's new-trial motion, concluding that a ledger that had been kept by Betty Vincent should have been admitted into evidence. 770 So.2d at 96. The Supreme Court remanded the cause to this court "for further proceedings consistent with [its] opinion." Id. On remand from the Supreme Court, this court reversed the trial court's order denying Vincent's new-trial motion, stating that the cause was "remanded for a new trial." Vincent v. First Alabama Bank, 770 So.2d 97 (Ala.Civ.App.2000) ("Vincent III").

In January 2001, after the cause had been remanded to the trial court for a new trial, the circuit judge who had presided over the original trial left office. In August 2001, the bank filed a motion for a summary judgment. As one of its bases for that motion, the bank asserted that Vincent had released the bank from liability, citing the release addressed by this court in Vincent I. The bank also asserted that Vincent's claims were barred by the doctrine of judicial estoppel because he had, according to the bank, represented under oath in previous bankruptcy proceedings and in divorce litigation with a former wife, Billie Vincent, that he did not have the $500,000 that he claimed Betty Vincent had removed from the safety-deposit boxes at the bank. The bank's summary-judgment motion was supported by, among other things, excerpts from Vincent's transcribed deposition testimony and from the transcript of his testimony at the original trial. Vincent responded by asserting, among other things, that a summary judgment based upon the release would be inconsistent with our holding in Vincent I, that a defense based upon judicial estoppel could not properly be asserted at that time, and that judicial estoppel was inapplicable under the facts of the case.

In September 2001, the successor circuit judge entered a summary judgment in favor of the bank and Betty Vincent. In its summary-judgment order, the trial court relied primarily upon the doctrine of judicial estoppel, although it also cited the release as an alternative ground. Vincent appealed to the Alabama Supreme Court, filing two notices of appeal, one as to the bank and one as to Betty Vincent; that court transferred the appeals to this court, pursuant to § 12-2-7(6), Ala.Code 1975. The appeals have been consolidated for purposes of writing our opinion.

Under Alabama law "the party moving for a summary judgment `has the burden of showing the absence of any genuine issue as to all material facts, which, under the applicable principles of substantive law, entitle it to a judgment as a matter of law.'" Garrison v. Alabama Power Co., 807 So.2d 567, 569 (Ala.Civ.App.2001) (quoting Fox v. Title Guar. & Abstract Co., 337 So.2d 1300, 1303 (Ala.1976)). We must therefore consider whether, under the applicable principles of Alabama law, the trial court's summary judgment was proper.

One of the two alternative grounds invoked by the trial court as authority for entering the summary judgment was the release executed by Vincent when he surrendered the keys to the safety-deposit boxes. However, in Vincent I, this court held that the trial court properly denied motions for judgment as a matter of law during and after the trial that squarely presented an issue whether the release was ambiguous.² The two judges of this court who joined the lead opinion in Vincent I as to this issue were of the view that "more than one reasonable meaning of the document ha[d] emerged, thereby creating an ambiguity in the document." 770 So.2d at 91. Although Presiding Judge Robertson did not join the lead opinion, he concurred in the result, i.e., he agreed that affirmance of the trial court's denial of the bank's motions for a JML was correct. Thus, although two judges dissented as to the release issue in Vincent I, this court's judgment of affirmance decided the issue of ambiguity in favor of Vincent, a judgment as to which the bank elected not to seek certiorari review in the Alabama Supreme Court.³

"Under the doctrine of the `law of the case,' whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case."

Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987). The trial court therefore could not on remand, based on the same facts, reverse its previous judgment and hold that the release was unambiguous. See Quimby v. Memorial Parks, Inc., 835 So.2d 134, 136 (Ala.2002)

. To the extent that the trial court based its summary judgment on the release, it erroneously went beyond the mandate of this court.

In contrast, the applicability of the doctrine of judicial estoppel was not litigated by the parties in the earlier appeal; neither this court nor the Supreme Court has yet addressed that issue. As we have stated, the Supreme Court, on certiorari review in Vincent II, reversed this court's judgment affirming the trial court's denial of Vincent's motion for a new trial. On remand from the Supreme Court, this court reversed the trial court's judgment and remanded the cause "for a new trial." Vincent III, 770 So.2d at 97. Our general remand in Vincent III for a new trial did not limit the subsequent proceedings except insofar as this court and the Supreme Court in Vincent I and Vincent II had indicated the law of the case. See Sullivan v. Mihelic, 808 So.2d 6, 9 (Ala.2001)

(where an appellate court held that the trial court erred in failing to grant a new trial, but did not limit the new trial to specific issues, the trial court erred in limiting the scope of the new trial). The bank asserted estoppel as a defense in its answer, and the trial court, in the exercise of sound judicial discretion, was authorized to permit the bank to argue that Vincent's claims were barred by the doctrine of judicial estoppel. See Federal Land Bank of New Orleans v. First Nat'l Bank of Scottsboro, 237 Ala. 84, 88, 185 So. 414, 417 (1938); see also Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251 (Ala.1985) (affirming a summary judgment entered by the trial court based upon a ground not asserted by the movant until after the deliverance of the opinion in the earlier appeal).

However, on the merits, we cannot conclude that the doctrine of judicial estoppel bars Vincent's claims against the bank. Our Supreme Court, in Jinright v. Paulk, 758 So.2d 553 (Ala.2000), set forth the following pertinent principles that govern the application of that doctrine in Alabama courts:

"The doctrine of judicial estoppel `applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted. Judicial estoppel looks to the connection between the litigant and the judicial system[,] while equitable estoppel

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