Williams v. BIC CORP.

Citation771 So.2d 441
PartiesFrankie WILLIAMS, as legal guardian of Antrinique Cunningham v. BIC CORPORATION.
Decision Date05 May 2000
CourtAlabama Supreme Court

J. Gusty Yearout, William P. Traylor III, and Deborah S. Braden of Yearout, Myers & Traylor, P.C., Birmingham, for appellant.

William W. Lawrence of Wooten, Thorton, Carpenter, O'Brien, Lazenby & Lawrence, Talladega; and David P. Whiteside, Jr., Birmingham, for appellee.

LYONS, Justice.

Frankie Williams, as guardian of Antrinique Cunningham, a minor, is the plaintiff in an action against BIC Corporation. The jury returned a verdict for the defendant, and the trial court entered a judgment on that verdict. Williams appeals from the trial court's order denying her motion for a judgment as a matter of law or for a new trial based on what she alleges was an erroneous jury charge.

I. Facts and Procedural History

On November 15, 1991, Constance Cunningham and her three children, her sons Mark and Dontavious and her daughter Antrinique, occupied Cunningham's bedroom at her apartment. According to Mrs. Cunningham's best friend and next-door neighbor, Cassandra Formby, on the previous evening Cunningham and Formby had gone to the Oak Tree Lounge around 11:45 p.m. and had continuously drunk alcoholic beverages until they returned to their apartments at 3:45 a.m.; then they had talked for a while, she said, before each returned to her separate apartment. Cunningham testified that she went into her living room, because her back was hurting, leaving the sleeping children in the bedroom. Cunningham then fell asleep in the living room. Cunningham testified that some time later five-year-old Mark awakened her because three-year-old Dontavious had started a fire in the bedroom; she said he had started the fire by using a disposable lighter he had found on Cunningham's dresser; and she said the lighter had been manufactured by the defendant BIC Corporation. Dontavious testified in his deposition that Cunningham went into the bedroom when she heard Antrinique crying. When Cunningham entered the bedroom, she said, she found two-year-old Antrinique on the bed, engulfed in flames. Cunningham said she pulled her off the bed and ran out of the apartment. Antrinique was severely burned in the fire and, since the fire, has had numerous surgeries and skin grafts.

On November 15, 1993, Cunningham, as mother and next friend of Antrinique Cunningham, a minor, filed a lawsuit in the Talladega County Circuit Court against BIC Corporation.1 She alleged that BIC had negligently and/or wantonly designed, manufactured, distributed, and sold the disposable lighter; that BIC had failed to warn of the dangers associated with use of the disposable lighter; that BIC had breached express and implied warranties; and that BIC was liable under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD").

In May 1995, Frankie Williams, Antrinique's maternal grandmother, was substituted as plaintiff because she had been appointed legal guardian of Antrinique. The case proceeded to trial, and on December 8, 1998, the jury returned a verdict for BIC. The trial court entered a judgment on the verdict.

Attorneys for Williams prepared for her a motion for a new trial and, on January 7, 1999, sent a copy of that postjudgment motion to Betty Love, an attorney in Talladega. According to her affidavit, Love was not involved as counsel in this case but merely agreed to file the plaintiff's postjudgment motion after a copy of it was faxed to her office. In an affidavit, Love explained that Williams's attorneys sent the fax copy of the postjudgment motion to her office on January 7, 1999. She says that she then walked to the Talladega County circuit clerk's office and filed a copy of the motion the same day. The record does not contain a copy of the motion stamped January 7, 1999, however. The case action summary sheet indicates that the clerk's office received a copy of the motion by fax on January 7. Williams has submitted affidavit testimony from the circuit clerk stating that the clerk's office could not have received a copy of the motion by fax because that office does not have and never has had a facsimile machine. On January 7, 1999, the clerk's office apparently received a hand-delivered copy of the motion that Williams's attorneys had sent by fax to Love. On January 8, 1999, the clerk's office received the original motion in the mail and stamped it filed that same day.

On February 24, 1999, Williams amended her postjudgment motion. On March 3, 1999, BIC filed a motion to strike Williams's motion as untimely filed, relying on Ex parte Tuck, 622 So.2d 929 (Ala. 1993), which held that Alabama courts would not accept filings by facsimile transmission. After conducting a hearing, the trial court denied Williams's motion, stating in its order that the motion had not been timely filed. (Rule 59(b), Ala. R. Civ. P., allowed 30 days for the filing of that motion.) The court also stated in its order that if the motion had been timely filed the court would have denied it on the merits. Williams appealed.

II. Timeliness of the Postjudgment Motion

Williams argues that the trial court erred in denying her postjudgment motion on the basis that it was untimely filed. She maintains that the copy of the motion that the clerk's office received on January 7, 1999, was a sufficient filing and was timely. Williams argues that Ex parte Tuck, on which BIC relies, does not support the trial court's conclusion that her motion was untimely filed. We agree. The facts of this case are distinguishable from those of Ex parte Tuck. In Tuck, the defendant Herbert D. McKay sent a copy of a notice of appeal by fax to the Talladega County courthouse. The Court of Civil Appeals held that McKay's notice of appeal, transmitted by fax within 14 days, satisfied the requirement of § 12-12-70(a), Ala.Code 1975, that an appeal from the district court to the circuit court be filed within 14 days. McKay v. Tuck, 622 So.2d 926, 928 (Ala.Civ.App.1992). However, Judge Robertson pointed out in his special writing that, because there was no facsimile machine in the circuit clerk's office, McKay's attorney sent a copy of the notice of appeal and security for costs by fax to another office in the Talladega County courthouse, with a cover sheet asking the recipient to take the document to the circuit clerk's office. 622 So.2d at 928 (Robertson, P.J., concurring in the result). McKay advised the circuit clerk's office that he was mailing the original motion the same day. Id. at 927.

This Court reversed the Court of Civil Appeals' holding that a faxed copy of a notice of appeal would be accepted as a properly filed notice of appeal, but it held that McKay's facsimile filing would be considered as timely, but for purposes of that particular appeal only. Ex parte Tuck, 622 So.2d at 930. The Court ruled that after July 31, 1993, it would not recognize facsimile filings except as they might be specifically authorized by rule or statute. Id.

Citing Ex parte Tuck, BIC contends that the trial court correctly held that Williams's motion was not timely filed, relying on the contention that she transmitted the motion to the court by fax. BIC maintains that the court received Williams's actual motion 31 days after the trial court had entered its judgment on the jury's verdict, one day beyond the 30 days allowed under Rule 59(b), Ala. R. Civ. P.

The Supreme Court of Tennessee also has refused to accept filings by facsimile transmission. In Love v. College Level Assessment Servs., Inc., 928 S.W.2d 36 (Tenn.1996), that court examined several factors in determining that a facsimile transmission of a notice of appeal is not sufficient to constitute a filing. Scarlett Love sued Nursing Careers and College Level Assessment Services, Inc. ("the assessment program"), seeking, among other things, rescission of a contract between her and the assessment program. Id. at 37. The trial court entered a judgment for Love. Id. On the last day allowed for an appeal, the assessment program sent the trial court a copy of a notice of appeal, by fax. Id. Love filed a motion to dismiss the assessment program's appeal, arguing that the assessment program did not file a notice of appeal with the trial court during the statutorily required period. Id. Apparently the trial court clerk had assured the assessment program that the faxed copy of the notice of appeal would be treated as an original. Nevertheless, the trial court denied Love's motion to dismiss the appeal. Id.

In determining that the facsimile transmission of the notice of appeal was not sufficient to perfect an appeal, the Supreme Court of Tennessee reasoned that counsel should refrain from using facsimile transmissions for filing court documents until uniform rules and procedures had been established to govern the use of facsimile transmissions. Id. at 38-39. The court agreed with Love's arguments that facsimile filing should not be allowed in the absence of a specific rule. Id. at 38. The court listed a number of reasons for not accepting filings by fax. Id. First, the court stated that Love was correct in stating that "timely perfecting of an appeal is no mere technical formality." Id. Second, the court noted that, although facsimile transmission is a common, reliable method of transmitting information, a number of problems could arise if the courts allowed facsimile filings. Id. For example, the court questioned whether a facsimile transmitted after the normal closing time of the clerk's office should be deemed as filed that day or as filed the next day. Id. The court also noted that problems could arise when the facsimile machine had mechanical difficulties and it questioned whether the transmitting party should be required to present a transmittal sheet, whether the clerk's office should charge a transmittal fee, and whether a party should be allowed to file by fax a document that requires a filing fee. Id.

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