Released for Publication May 15, 2015.
Appeal from Madison Circuit Court. (CV-12-901430). James P. Smith, Trial Judge.
For Appellant: Kimberly A. Ford of Fordumas LLC, Huntsville.
For Appellees: Gary P. Wolfe of Wolfe, Jones, Conchin, Wolfe, Hancock & Daniel, LLC, Huntsville.
THOMAS, Judge. Thompson, P.J., and Moore, J., concur in the result, without writings. Donaldson, J., concurs in part and dissents in part, with writing, which Pittman, J., joins. Pittman, J., concurs.
On October 15, 2012, Richard Salazar, The Heritage Club, Inc. (" the Heritage Club" ), and the Private Club, LLC (" the Private Club" ) filed a complaint against Augustus Tucker in the Madison Circuit Court. (The Heritage Club, Inc., the Private Club, LLC, and Salazar are hereinafter referred to collectively at times as " the plaintiffs" ). Salazar was a shareholder in the Private Club, which, after August 15, 2007, owned, at different times, some or all of the stock of the Heritage Club. The Heritage Club was a private lunch-and-dinner club, and Salazar was employed by the Heritage Club as " the director of food and beverage." Although it is not entirely clear, it appears that the Private Club was an " investment club," which had, at different times, between one and three members, including, but not limited to, Salazar, Tucker, and John Esneault.
The complaint asserted claims including tortious interference with contractual and business relationships and defamation. Specifically, the plaintiffs requested a temporary restraining order and a preliminary injunction restraining Tucker from operating the Heritage Club or communicating to anyone that he controlled the operation of the Heritage Club. The plaintiffs requested a trial, a permanent injunction, an award of all the records regarding the business operations of the Heritage Club, a declaration that the Private Club was the primary owner of the Heritage Club, compensatory and punitive damages, and an award of attorney fees.
Tucker filed an answer, generally denying the plaintiffs' allegations and asserting various defenses. Tucker filed an amended answer, a motion to dismiss, and a counterclaim. Tucker requested relief, including the removal of the Heritage Club as a plaintiff and a dismissal of the complaint. In his counterclaim, Tucker sought damages for conversion, " tortious interference," defamation. Tucker requested a temporary restraining order, a trial, a permanent injunction, and an order requiring Salazar to relinquish control of all property belonging to the Heritage Club, including its bank accounts and its documents. Tucker requested an order declaring that the Private Club was not the owner of the Heritage Club, that Salazar had been properly terminated from his employment with the Heritage Club, and that Tucker had authority to act on behalf of the Heritage Club. Tucker requested an award of compensatory and punitive damages and of attorney fees.
A bench trial began on September 30, 2013. On October 2, 2013, without including any specific findings of fact, the circuit court entered a judgment determining that the Private Club was the majority shareholder of the Heritage Club. It awarded Salazar damages in the amount of $50,000 on his defamation claim and $50,000 on his tortious-interference-with-business-relations claim, and it awarded the Private Club damages in the amount of $50,000 on its tortious-interferencewith-business-relations claim. It entered a judgment in favor of Tucker on the plaintiffs' remaining claims and in favor of the plaintiffs on Tucker's counterclaims.
On November 1, 2013, Tucker filed a timely postjudgment motion to which he
attached copious exhibits. In his postjudgment motion, Tucker argued that the proceedings were " inconsistent," that the trial had been unfair because he was allowed only two hours to present his case although the plaintiffs were permitted " approximately two days," that the circuit court had failed to consider all available evidence, and that the circuit court had abused its discretion by failing to provide Tucker an adequate opportunity to present his defense. Tucker also argued that the circuit-court judge and the court reporter had evidenced bias. Within Tucker's bias argument, Tucker generally alleged that the circuit court had erred because it had " failed to consider Salazar's own testimony" regarding his communication of " information regarding his suspension and ultimate termination" from the Heritage Club.
On December 12, 2013, the circuit court entered an order granting the plaintiffs' motion to strike the exhibits attached to Tucker's postjudgment motion and denying Tucker's postjudgment motion. In the order, the circuit court expressly denied bias and explained that it had not limited Tucker from calling witnesses; however, it stated that it had " attempted to limit the extent of Tucker's testimony on direct examination because of the very extensive amount of cross-examination conducted when he was called by [the plaintiffs] as an adverse witness." On January 23, 2014, Tucker filed a timely notice of appeal to our supreme court. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.
Tucker seeks our review of whether the circuit court erred by failing to consider all available evidence, by limiting Tucker's ability to present testimony, by concluding that Tucker was liable to Salazar for defamation, by concluding that Salazar was not liable for defamation, by declaring that the Private Club was the majority owner of the Heritage Club, by concluding that Salazar had not accessed funds without authorization, and by concluding that a 401(k) account had not been established for Tucker. However, we need only address Tucker's second argument -- whether the circuit court erred by determining that Tucker was liable to Salazar for defamation -- because, as noted by the plaintiffs in their appellees' brief, Tucker has waived his remaining arguments by failing to make legal arguments supported by authority, in contravention of Rule 28(a)(10), Ala. R. App. P., which requires that the parties present in their briefs the legal authorities that support their positions. " If they do not, the arguments are waived." White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008).
Because we address only the defamation issue, we provide facts limited to that issue. On August 15, 2007, 100% ownership (1,000 shares) of the Heritage Club stock was conveyed to the Private Club, and by 2009 the Heritage Club was experiencing financial difficulties. Documents entered into evidence indicated that between May 17, 2010, and January 20, 2012, the Private Club sold 28% (280 shares) of the Heritage Club stock in an attempt to meet the Heritage Club's financial needs. In September 2011, Tucker owned at least 13% (130 shares) of the Heritage Club stock, Tucker and Salazar began communicating " almost daily," and Tucker became involved in the financial affairs of the Heritage Club; however, Tucker was never a paid employee of the Heritage Club or of the Private Club. Salazar appointed Tucker as the chief financial officer (" CFO" ) of the Heritage Club at a time when the financial condition of the Heritage Club was, according to Salazar, " absolutely terrible" ; the Heritage Club was unable to fund the second phase of its reconstruction project,
to pay bills, or to meet its payroll. In his capacity as CFO, Tucker attempted to acquire a loan or a line of credit for the Heritage Club, but, Salazar admitted, the Heritage Club's applications for credit were denied due to problems with Salazar's personal credit rating. Salazar said: " Number one, the finances of the club individually were not very good. So for someone to guarantee the loan, which is what was needed, I was not able to do it."
Much of the disputed testimony in this case centered around Tucker's attempts to raise funds for the Heritage Club. The resolution of this appeal does not require our analysis of the disputed testimony; however, we note that the plaintiffs' attorney repeatedly impeached Tucker's evasive and contradictory trial testimony with his deposition testimony. For example:
" Q. [The plaintiffs' attorney:] And you would agree with me today as we sit here, that the only shares you own in the Heritage Club [are] 130 shares?
A. [Tucker:] That is incorrect.
" Q. [The plaintiffs' attorney:] Okay. Let me ask you to turn to Page 137 of your deposition at very top. I asked you the question: 'Okay, have you ever owned more than 130 shares of stock in the Heritage Club?' And what was your answer?
" A. [Tucker:] No.
" Q. [The plaintiffs' attorney:] So are you saying today that you do own more ...