Wiggins v. Mobile Greyhound Park, LLP, 1170874

• Citation: 294 So.3d 709
• Decision Date: 03 May 2019
• Docket Number: 1170874
• Parties: Katerial WIGGINS, individually and as administrator of the estate of Dominic G. Turner, deceased, and as next friend of Dominic Turner, Jr., a minor v. MOBILE GREYHOUND PARK, LLP, and Mobile Greyhound Racing, LLP
• Court: Supreme Court of Alabama

294 So.3d 709

Katerial WIGGINS, individually and as administrator of the estate of Dominic G. Turner, deceased, and as next friend of Dominic Turner, Jr., a minor

v.MOBILE GREYHOUND PARK, LLP, and Mobile Greyhound Racing, LLP

1170874

Supreme Court of Alabama.

May 3, 2019

Rehearing Denied August 23, 2019

J. Cole Portis, Kendall C. Dunson, R. Graham Esdale, and Stephanie S. Monplaisir of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellant.

Charles A. Dauphin of Dauphin Paris LLC, Vestavia Hills, for appellees.

BRYAN, Justice.

Katerial Wiggins, individually and as the administrator of the estate of Dominic G. Turner, deceased, and as the next friend of Dominic Turner, Jr. ("D.T."), appeals from a summary judgment entered by the Mobile Circuit Court ("the circuit court") in favor of Mobile Greyhound Park, LLP ("MGP"), and Mobile Greyhound Racing, LLP ("MGR"). We affirm in part and reverse in part the circuit court's judgment and remand the cause for further proceedings.

Facts and Procedural History

On June 6, 2015, a vehicle being driven by Willie McMillian struck from behind a vehicle being driven by Wiggins on Interstate 10 in Mobile County. Wiggins's fiancé, Turner, and their child, D.T., were riding in the backseat of the vehicle being driven by Wiggins when the collision occurred. As a result of the collision, Turner died and Wiggins and D.T. were injured. After obtaining evidence indicating that McMillian was under the influence of alcohol, law-enforcement officers arrested McMillian. He later pleaded guilty to reckless murder and was sentenced to imprisonment for 15 years.

In February 2016, Wiggins, in her individual capacity, on behalf of D.T., and on behalf of Turner's estate, sued McMillian. In relevant part, the complaint also named MGP and MGR as defendants.¹ Wiggins alleged that MGR and MGP operated a dog-racing track and that, on the day of the collision, MGR and MGP sold alcohol to McMillian at the dog-racing track while he was visibly intoxicated; she requested compensatory damages and punitive damages, pursuant to § 6-5-71, Ala. Code 1975 ("the Dram Shop Act"), for Turner's death and the injuries she and D.T. had sustained.² (This action is hereinafter referred to as "the dram-shop action.") Wiggins later filed a report of special damages in the dram-shop action that, in relevant part, included a request for damages under the Wrongful Death Act, § 6-5-410, Ala. Code 1975.

Wiggins also sought to consolidate the dram-shop action with an interpleader action that had been initiated in 2015 by Alfa Mutual Insurance Company ("Alfa"), McMillian, and Lutenia Campbell, McMillian's longtime partner and the owner of the vehicle he was driving at the time of the collision ("the interpleader action"). In relevant part, the complaint filed in the interpleader action named as defendants Wiggins; D.T.; Turner's estate; Sarah Hinkle, McMillian's mother and a passenger in the vehicle he was driving at the time of the collision; and Michael and Dana Davis, who were occupants in a vehicle that was struck by the vehicle being driven by Wiggins at the time of the collision. Pursuant to the limits of Campbell's vehicular-insurance policy, Alfa interpleaded $100,000 to the circuit court clerk. The record does not contain an order consolidating the dram-shop action and the interpleader action. The parties to the interpleader action later reached a settlement. The circuit court dismissed McMillian from the dram-shop action, leaving as defendants only MGP and MGR.

In April 2018, MGR moved for a summary judgment in the dram-shop action and submitted evidence in support of its motion. Among other things, MGR argued that Wiggins had failed to present sufficient evidence indicating that McMillian had appeared "visibly intoxicated" while purchasing alcohol at the dog-racing track operated by MGR. MGR also argued that the issue whether McMillian had appeared "visibly intoxicated" during the relevant times had already been litigated in the interpleader action and that Wiggins was, therefore, precluded by the doctrine of res judicata from relitigating that issue in the dram-shop action. MGR also filed a motion to strike Wiggins's "claims for damages other than damages allowed under § 6-5-71, Ala. Code 1975." In relevant part, MGR argued that any claim of "wrongful death" asserted by Wiggins should be struck because, MGR argued, such claims "are not allowed under the Dram Shop Act."

Wiggins filed a brief in response to MGR's summary-judgment motion and submitted evidence in support of her response. Wiggins also filed a response to MGR's motion to strike portions of her complaint, in which she argued, in relevant part, that "claims for wrongful death are proper under the Dram Shop Act."

In May 2018, MGP also moved for a summary judgment. In relevant part, MGP asserted that it was a limited partnership that owned a minority interest in MGR. MGP asserted that it was not responsible for the operation of the dog-racing track and that none of its employees was working at the dog-racing track on the day of the collision. Thus, MGP asserted, it was not liable under the Dram Shop Act. Wiggins did not file a response to MGP's summary-judgment motion.

On May 30, 2018, the circuit court entered an order granting MGP's summary-judgment motion. That same day, the circuit court also entered an order granting MGR's "motion to strike [Wiggins]'s claim for damages for wrongful death." Finally, the circuit court entered an order granting MGR's summary-judgment motion; in so doing, the circuit court concluded that Wiggins had failed to present sufficient evidence demonstrating the existence of a genuine issue of material fact regarding whether "McMillian appeared to be intoxicated when he was served at the dog track."

Wiggins appealed from the circuit court's judgment, naming both MGR and MGP as appellees. In her principal appellate brief, Wiggins challenges the summary judgment in favor of MGR and its decision to grant MGR's motion to strike her wrongful-death claim. For the first time in her reply brief, Wiggins asserts that MGP is not a separate entity from MGR and that "Mobile Greyhound Park" is merely a trade name used by MGR. We address each argument in turn.

Standard of Review

" ‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present "substantial evidence" creating a genuine issue of material fact –- "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." Ala. Code 1975, § 12-21-12 ; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989).’

" Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala. 1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala. 2004)."

Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala. 2006).

Analysis

I. Summary Judgment in Favor of MGR

A.

We first address Wiggins's challenge to the summary judgment in favor of MGR. The Dram Shop Act provides, in relevant part:

"(a) Every wife, child, parent, or other person who shall be injured in person, property, or means of support by any intoxicated person or in consequence of the intoxication of any person shall have a right of action against any person who shall, by selling, giving, or otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages, cause the intoxication of such person for all damages actually sustained, as well as exemplary damages."

§ 6-5-71 (emphasis added). "In order to show a violation of the Dram Shop Act the plaintiff must prove three elements: The sale must have 1) been contrary to the provisions of law; 2) been the cause of the intoxication; and 3) resulted in the plaintiff's injury." Attalla Golf & Country Club, Inc. v. Harris, 601 So.2d 965, 967 (Ala. 1992).

"It is well settled in Alabama that a sale to a visibly intoxicated person is ‘contrary to the provisions of law.’ Ala. Code 1975, § 28–3–49 ; ABC [Alcoholic Beverage Control] Board Regulations 20–x–6.02(4)." 601 So.2d at 968. Alabama Administrative Code (ABC Board), Regulation 20-X-6-.02(4), provides: "No ABC Board on-premises licensee, employee or agent thereof shall serve any person alcoholic beverages if such person appears, considering the totality of the circumstances, to be intoxicated." The question presented in this appeal is whether sufficient evidence was produced demonstrating the existence of a genuine issue of fact regarding whether MGR sold beverages to McMillian "contrary to the provisions of law," specifically, those set out in Reg. 20-X-6-.02(4).

As a preliminary matter, however, we note that Wiggins's principal appellate brief includes some discussion regarding whether the "totality of the circumstances," as mentioned in Reg. 20-X-6-.02(4), should be evaluated in considering her dram-shop claim. She contends that it should. Although neither the circuit court's summary judgment nor MGR's appellate arguments explicitly conflict with Wiggins's assertion, we find it necessary to address the question in light of its potential impact on the manner in which the evidence should be viewed.

Wiggins begins her discussion of the issue by pointing out that the version of Reg. 20-X-6-.02(4) existing in 1987 did not specifically require Alcoholic Beverage...