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04/07/95 DUCK HEAD APPAREL COMPANY v. KEN HOOTS

April 7, 1995

DUCK HEAD APPAREL COMPANY, INC.
v.
KEN HOOTS, ET AL. KEN HOOTS, ET AL. V. DUCK HEAD APPAREL COMPANY, INC.



Appeals from Montgomery Circuit Court. (CV-92-561).

Original Opinion of February 17, 1995, Reported at: 659 So. 2d 897

Almon, Shores, Kennedy, Ingram, Cook, and Butts JJ., concur. Maddox and Houston, JJ., Dissent.

The opinion of the court was delivered by: Almon

On Application for Rehearing

ALMON, JUSTICE.

APPLICATION OVERRULED.

Shores, Kennedy, Ingram, Cook, and Butts JJ., concur.

Maddox and Houston, JJ., Dissent.

Hornsby, C. J., recused. HOUSTON, JUSTICE (dissenting).

Footnote six to the majority opinion was added after my Dissent was written. Hoots, Long, and Pace ("plaintiffs"), in their "Brief in Response to Application for Rehearing," contend that this is a case involving a "pattern and practice of intentional wrongful conduct."

The defendants, Duck Head and Delta Woodside, wrote on page 75 of their original brief:

"Duck Head's alleged misconduct was plainly limited in scope and duration, and involved at most six former sales persons, the three plaintiffs here and three others.... There was no evidence of any pattern or practice of misconduct, or any long-term policy of fraud or misrepresentation, as there was in, e.g., Northwestern Mutual, 630 So. 2d 384, and BMW [of North America, Inc. v. Gore, supra]."

In footnote 39, on page 69 of their initial brief, the plaintiffs wrote:

"Duck Head and Delta Woodside have been successful in forcing distress settlements in the other claims filed against them. These other cases exhibit a pattern and practice of deceitful conduct, ...


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