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Brewer v. Atkinson

Alabama Court of Civil Appeals

March 9, 2018

Robert Brewer and Mary Pauline Brewer
Joshua Atkinson, William J. Atkinson III, and Atkinson Nursery, Inc.

         Appeal from Mobile Circuit Court (CV-16-900368)

          THOMAS, Judge.

         In March 2015, Robert Brewer and Mary Pauline Brewer were traveling through Theodore in Mobile County in their pickup truck around 11:00 p.m. The pickup truck collided with a cow, later identified as "Cow 64, " that had wandered onto the roadway, causing damage to the pickup truck and injuries to Robert. In February 2016, the Brewers sued Joshua Atkinson, the owner of Cow 64, William J. Atkinson III, the owner of the property upon which Cow 64 had been kept, and Atkinson Nursery, Inc. ("the nursery"), the business operated by William (Joshua, William, and the nursery are hereinafter referred to collectively as "the Atkinsons"), in the Mobile Circuit Court ("the trial court").[1] In the complaint, the Brewers claimed that Joshua had violated a duty under Ala. Code 1975, § 3-5-1 et seq., to refrain from knowingly or willfully putting or placing Cow 64 on a public roadway and that they were entitled to damages for such breach. The Brewers also sought damages for the alleged negligence, negligence per se, or wantonness of William and the nursery and for Joshua's alleged negligent hiring, training, or supervision of William and/or the nursery based on allegations that the Atkinsons had failed to properly fence Cow 64. In addition, Mary sought damages for loss of consortium. The Atkinsons answered the complaint, generally denying liability.

         In February 2017, the Brewers moved for a partial summary judgment, arguing that William and the nursery, as mere keepers of Cow 64 as opposed to its owners, were not entitled to rely on Ala. Code 1975, § 3-5-3(a), which, the Brewers contended, limits the liability of only owners of livestock to owners or occupants of motor vehicles who strike livestock on a roadway.[2] In March 2017, the Atkinsons moved for a summary judgment on all claims against them, arguing, among other things, that they had not knowingly or willfully put or placed Cow 64 on the roadway and were therefore, under § 3-5-3(a), not liable to the Brewers. The trial court entered a judgment on July 7, 2017, denying the Brewers' motion for a partial summary judgment and granting the Atkinsons' motion for a summary judgment on all counts of the complaint. The Brewers filed a timely postjudgment motion on August 3, 2017, in which they asserted for the first time a challenge to the constitutionality of § 3-5-3(a). The trial court summarily denied the Brewers' postjudgment motion the next day, and the Brewers timely appealed to our supreme court, which transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

         On appeal, the Brewers raise three arguments. They argue that § 3-5-3 is unconstitutional facially and as applied. They argue that § 3-5-3(a) is repugnant to Alabama's status as a "closed range" state and that the 1951 amendments to Alabama's stock laws implicitly repealed the limitation of liability in § 3-5-3(a). Finally, they contend that the fence in which Cow 64 was contained was not properly constructed in accordance with the statutes governing livestock fencing found at Ala. Code 1975, §§ 3-4-3, 3-4-4, and 3-4-5 and, therefore, that there existed a jury question on whether the Atkinsons knowingly or willfully created a hazard that Cow 64 would enter the roadway by allegedly improperly constructing and maintaining the fence.

         We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala. 1992). If the movant meets this burden, "the burden then shifts to the nonmovant to rebut the movant's prima facie showing by 'substantial evidence.'" Lee, 592 So.2d at 1038 (footnote omitted). "[S]ubstantial evidence is 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." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989); see Ala. Code 1975, § 12-21-12(d).

         As noted above, the Brewers first raised a constitutional challenge to § 3-5-3(a) in their postjudgment motion. The Brewers argued that § 3-5-3(a) is unconstitutional both facially and as applied. However, the Brewers did not properly serve the attorney general with the facial constitutional challenge because they mailed a copy of their postjudgment motion to the attorney general by use of regular first-class mail. See Ex parte Gentry, [Ms. 2160300, May 5, 2017] So. 3d, (Ala. Civ. App. 2017) (explaining that service on the attorney general may be made by certified mail under Rule 4(i)(2), Ala. R. Civ. P., but that sending notice of a constitutional challenge to the attorney general by the use of regular mail is insufficient service of process). We conclude that the facial constitutional challenge was not properly before the trial court and is therefore not properly before this court for consideration. Tucker v. Personnel Bd. of Dothan, 644 So.2d 8, 9 (Ala. Civ. App. 1994) ("If the party challenging the constitutionality of a statute fails to serve the attorney general, as required by Ala. Code 1975, § 6-6-227, the trial court has no jurisdiction to decide the constitutional claims.").

         We have held, however, that the attorney general is not required to be served with an "as applied" challenge to a statute. See Ex parte Gentry, So.3d at (citing Ex parte Squires, 960 So.2d 661, 664-65 (Ala. 2006), for the proposition that "[a] party need not serve the attorney general to assert an 'as applied' challenge to a statute"). Thus, the failure to properly serve the attorney general is not an impediment to our review of the Brewers' "as applied" challenge to § 3-5-3(a). Instead, we conclude that our review of the Brewers' "as applied" challenge to § 3-5-3(a) is precluded because of the Brewers' late assertion of that challenge.

         By now it is well settled that "a trial court has the discretion to consider a new legal argument in a post-judgment motion, but it is not required to do so." Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369 (Ala. 1988); see also Espinoza v. Rudolph, 46 So.3d 403, 416 (Ala. 2010); Special Assets, L.L.C. v. Chase Home Fin., L.L.C., 991 So.2d 668, 677-78 (Ala. 2007). The trial court denied the Brewers' postjudgment motion without comment on the arguments contained therein. Thus, nothing in the record indicates that the trial court considered the constitutional challenge to § 3-5-3(a), and, therefore, we will not presume that the trial court did so. See Special Assets, 991 So.2d at 678. Furthermore, our supreme court has explained that "'[a]n appellant cannot invoke action by a court and have a case tried on certain issues and then later, when dissatisfied with the result, raise an entirely new issue, such as the constitutionality of the statutes under which he was proceeding, '" in a postjudgment motion. Alabama Power Co. v. Capps, 519 So.2d 1328, 1330 (Ala. 1988) (quoting Talley v. A & M Constr. Co., 284 Ala. 371, 373, 225 So.2d 359, 360 (1969)); see also Hicks v. Huggins, 405 So.2d 1324, 1327 (Ala. Civ. App. 1981) ("Constitutional issues raised for the first time in a motion for new trial come too late for consideration on appeal."). Accordingly, we will not consider the "as applied" constitutional challenge to § 3-5-3(a) asserted by the Brewers.

         The Brewers next argue that the limited remedy contained in § 3-5-3(a) was developed as part of an "open range" livestock system, under which livestock owners could allow their livestock to roam at large and upon the lands of another. According to the Brewers, the 1951 amendments to Alabama's stock laws created a "closed range" livestock system, in which livestock owners are required to fence in livestock. Based on these premises, the Brewers challenge § 3-5-3(a) as repugnant to the "closed range" system and contend that, based on Monfee v. Seymore, 392 So.2d 1198 (Ala. Civ. App. 1980), this court should decide that the limited remedy contained in § 3-5-3(a) was implicitly repealed by the 1951 amendments to Alabama's stock laws.

         In Monfee, this court determined that Ala. Code 1975, § 3-4-6(a), had been implicitly repealed by the 1951 amendments to Alabama's stock laws. Monfee, 392 So.2d at 1201. Section 3-4-6(a) had extended immunity to livestock owners for damage done by their livestock to lands not enclosed by a lawful fence. As we explained in Monfee, before the enactment of the 1939 Local Option Stock Law, Act No. 68, Ala. Acts 1939 ("the 1939 act"), Alabama had been what is referred to as an "open range" state. Id. at 1200. That is, before the 1939 act, "Alabama was an open range state where it was lawful for one to allow his livestock to go at large on the lands of another." Id. Thus, if a landowner wanted to protect his crops from roaming livestock, the landowner was required to fence the livestock out of his property. Id. at 1201. As we noted in Monfee, the 1939 act, which included what is now § 3-5-3(a), changed Alabama from an "open range" state to a "closed range" state, except that it allowed each county the option of electing to remain an "open range" county. Id. In 1951, the legislature, in Act No. 53, Ala. Acts 1951 ("the 1951 act"), abolished those provisions of the 1939 act allowing for the creation of "open range" counties, making the entire state a "closed range." Id. The 1951 act also "repealed ... 'all other laws or parts of laws in conflict herewith.'" Id. (quoting the 1951 act). We concluded in Monfee that the immunity extended by § 3-4-6(a) to livestock owners for damage done by livestock to another's property was repugnant to "closed range" principles, which require livestock owners to fence in livestock, and, therefore, that § 3-4-6(a) had been implicitly repealed by the 1951 act. Id.

         However, we cannot agree with the Brewers that the limited remedy contained in § 3-5-3(a) was implicitly repealed by the 1951 act. The Court of Appeals considered this exact argument in Randle v. Payne, 39 Ala.App. 652, 656, 107 So.2d 907, 910 (Civ. 1958):

"We think of necessity we must approach this review on the basis of whether the 1951 Act repealed the limited remedy provided in Section 79 of the 1939 Act [which is now § 3-5-3(a)], which in effect created a new cause of action, i.e., liability of the owner of stock running at large on a public highway, where no such right, or remedy, had before existed.
"It is appellant's contention, in effect, that the 1951 Act reinstated the common law, which allows a remedy based on negligence for damages by trespassing cattle, and therefore, by implication, repealed the limitations for recovery placed on the owner of a motor vehicle injured by stock ...

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