text:
    Wood BYRD, and Bacadam, Inc. v. Mark BENTLEY.
    1010528.
    Supreme Court of Alabama.
    Aug. 23, 2002.
    Rehearing Denied Nov. 8, 2002.

      Robert Hayes of Hayes & Swinford, Birmingham; and Sterling L. DeRamus, Birmingham, for appellants.
    Charles A. Dauphin of Baxley, Dillard, Dauphin & McKnight, Birmingham, for appellee.
   HARWOOD, Justice.

Wood Byrd, and Bacadam, Inc. (hereinafter jointly referred to as “the defendants”), appeal from the trial court’s judgment on a $1,350,000 jury verdict in favor of Mark Bentley. We affirm.

On March 9, 1999, Bentley sued the defendants seeking to recover damages on claims of fraud and breach of contract. Bentley, who had been employed as manager of Bacadam, which was owned by Byrd, alleged that an oral contract of employment existed between him and the defendants in which he was to receive an 8 percent commission from his sales and a 30 percent ownership interest in Bacadam in the event that he met certain goals in increasing Bacadam’s business. He also asserted that the parties had agreed that, in order to expand Bacadam’s business, he would receive a 50 percent ownership interest in any company he located for Baca-dam to purchase, and that he had arranged for the purchase by Bacadam of another company, Reach Advertising. Bentley further alleged that Byrd sold all the assets of Bacadam and purchased Reach Advertising, but that Bentley never received an ownership interest in Bacadam or Reach Advertising.

On December 80, 1999, the defendants filed an answer denying Bentley’s claims and asserting counterclaims alleging breach of contract, fraud, and violations of the Alabama Trade Secrets Act, § 8-27-1 et seq., Ala.Code 1975, based upon their allegations that Bentley had not devoted his full attention to Bacadam as agreed and that he had engaged in business in competition with Bacadam. After the completion of discovery, a jury trial began on August 6, 2001. On August 7, 2001, at the close of Bentley’s case-in-chief, the defendants filed a motion for a judgment as a matter of law, with a supporting memorandum. The trial court took the defendants’ motion under advisement and allowed the defendants to present their case. At the close of the defendants’ case, Bentley filed a motion for a judgment as a matter of law in regard to the defendants’ counterclaims; the trial court granted that motion. The defendants also renewed their motion for a judgment as a matter of law, and the trial court denied it as to Bentley’s breach-of-contract claim but reserved ruling on it as to Bentley’s fraud claim. Following Bentley’s presentation of rebuttal testimony, he voluntarily dismissed his fraud claim. Thus, the only claim presented to the jury was Bentley’s breach-of-contract claim. On August 9, 2001, the jury returned the following verdict:

“We, the jury, find in favor of Plaintiff, Mark Bentley, and against the Defendants, Wood Byrd and Bacadam, Inc., and assess the Plaintiffs damages at One Million Three Hundred Fifty Thousand dollars ($1,350,000.00).”

On that same day, the trial court entered a judgment on the jury’s verdict.

On September 5, 2001, the defendants renewed their motion for a judgment as a matter of law, and also filed, in the alternative, a motion for a new trial; Bentley filed a response in opposition on September 24, 2001. On September 28, 2001, the defendants filed a memorandum in support of their postjudgment motion; Bentley filed a supplemental response on October 10, 2001. On October 22, 2001, the trial court entered an order that stated, in pertinent part:

“THIS CAUSE was heard on the Defendants!’] Motion for Judgment [as a matter of law] and/or Motion for New Trial. On August 9, 2001, the jury in this cause returned a verdict in favor of [Bentley] and against the Defendants] in the sum of One Million Three Hundred Fifty Thousand and 00/100 Dollars ($1,350,000.00). The evidence submitted by [Bentley] is that the parties entered into an agreement whereby [Bentley] would leave his job in Huntsville and manage Bacadam, Inc., which was owned by [Byrd]. The consideration for [Bentley’s] employment would be a salary and in addition the transfer of a thirty (30%) percent interest in the company conditioned upon [Bentley’s] meeting certain financial and growth goals. [Bentley’s] evidence was that although he met those goals, the Defendant refused to transfer a thirty (30%) percent interest in the company to [Bentley] and, in fact, sold the company to another corporation for the approximate sum of Six Million Dollars ($6,000,000.00), without the knowledge or consent of [Bentley]. [Byrd] emphatically denies that he ever agreed to transfer an interest in Bacadam, Inc., to [Bentley] and further, that such an agreement for the transfer of stock would be unenforceable under the Statute of Frauds because it is undisputed that the alleged agreement was never reduced to writing. At the conclusion of [Bentley’s] evidence and at [the] conclusion of all of the evidence, the Defendants] made an appropriate motion for a judgment as a matter of law which motion was overruled.
“Although disputed, there was sufficient evidence which, if believed by the jury, would support a judgment in the amount of the verdict. The evidence offered by [Bentley] that he fully performed his part of the agreement in that he met the financial and growth goals that would entitle him to a transfer of a thirty (80%) percent interest in Baca-dam, Inc., was apparently believed by the jury and reflected in its verdict. [Bentley’s] full performance of the oral agreement with the Defendants] took the contract out of the Statute of Frauds and was, accordingly, enforceable. Ingram v. Omelet Shoppe, Inc., 388 So.2d 190 (Ala.1980). The Defendants] also argue that an employment contract which was not reduced to writing is unenforceable and further, that the alleged contract was a sale of securities which was also unenforceable as being in violation of the Statute of Frauds. The Court has not been directed to an Alabama case specifically on this point;] however, other jurisdictions have addressed similar issues. In Hiller v. Franklin Mint, Inc., 485 F.2d 48 [(3d Cir.1973)], the [United States Court of Appeals for the Third Circuit] held that the transfers of securities pursuant to an employment contract did not constitute ‘sales of securities’ within the purview of the Pennsylvania Statute of Frauds dealing with the sale of securities. The Supreme Court of Pennsylvania held, in a case factually similar to the instant case, that an oral contract for an employee to quit his job and work for a new employer in exchange for an annual salary plus ten (10%) percent of its stock was not a sale of securities and was enforceable. In Jones v. Cecil Sand & Gravel, Inc., [97 Md.App. 87,] 627 A.2d 60 [(1993)], the Court of Special Appeals of Maryland found that the Statute of Frauds requiring contracts for sale of securities to be in writing did not apply to oral employment contracts agreeing to exchange of stock for services. Where the only consideration for the stock was acceptance of employment, an oral contract is not prohibited by the section of the Statute of Frauds providing that a contract for sale of securities is not enforceable unless there is some writing signed by [the] party against whom enforcement is sought. Bowers Steel, Inc. v. DeBrooke, 557 S.W.2d 369 [(Tex.Civ.App.1977)]. Finally, the Court of Appeal[s] of Georgia held that the Statute of Frauds requirement that there be a writing before a contract was enforceable did not apply to an alleged arrangement under which employer was to transfer corporate stock to employee in consideration for services rendered. Thompson v. Kohl, [216 Ga.App. 148,] 453 S.E.2d 485 [(1994)].
“In this case there was substantial evidence presented from which the Jury could conclude that there was an employment contract between [Bentley] and the Defendants] for which the consideration was the exchange or transfer of stock in Bacadam, Inc.
“Accordingly, the Defendants’ Motion for Judgment [as a matter of law] and/or Motion for New Trial is OVERRULED.”

On November 28, 2001, the defendants filed a notice of appeal.

The record shows that at trial, Bentley testified that the agreement between him and the defendants was that, in exchange for his increasing Bacadam’s profits, he would receive a 30 percent ownership interest in the company, the value of which was to be determined as of the date he began work for Bacadam and was to be paid for by the increased profits he generated. He further testified that when he began work, Bacadam was receiving monthly revenues of $35,000-$36,000 and that Byrd set a goal for Bentley to increase that amount to $70,000 per month. Bentley stated that the $70,000 goal was reached, and in some months even surpassed.

Bentley’s testimony regarding his employment agreement with the defendants was supported by the testimony of Dwight Jennings. Jennings was Bentley’s former employer and an acquaintance of Byrd’s. Jennings testified that Byrd had telephoned him in an effort to find someone to hire as manager of Bacadam. Jennings recommended Bentley and arranged a meeting between them, but told Byrd that Bentley would most likely require an ownership interest as part of his compensation for employment. Jennings further testified as follows:

“Q. After the meeting took place, did you have a conversation with Wood Byrd—
“A. Yes.
“Q. — about how the meeting went. And if you would tell us what he said in this conversation.
“A. He was very impressed with Mark [Bentley]. He was very happy that he had had the conversation with Mark. He said that he thought they either had a deal or could work out a deal; that Mark had wanted 50 percent ownership in the company, but he thought that they could work it out somewhere in the range of 30 percent; that he was going to pay Mark a salary; if Mark got the job done, he would pay him a bonus, and that bonus would go towards helping him buy some ownership in the company.”

Jennings also testified that after subsequent conversations with Bentley relating to Byrd’s failure to offer him an ownership interest, he spoke to Byrd. Jennings testified that Byrd confirmed the agreement, saying that he was close to giving Bentley his ownership interest. It is undisputed that Bentley never received an ownership interest in Bacadam although he worked for that company continuously from the time of his employment in early 1994 until the company was sold in November 1998.

After Bentley learned of Byrd’s sale of Bacadam in 1998, he tape-recorded a conversation between him and Byrd on a mi-crocassette recorder. A copy of that mi-crocassette recording was transferred to a larger cassette so that, as Bentley’s attorney stated at trial, it could be more fully amplified for the jury; the copy was played for the jury and admitted into evidence. A transcript of that recording was also presented to the jury. The defendants objected to the admission of the copy of the tape recording, and prior to its being played to the jury, the trial court and attorneys listened to the tape recording and compared it to the transcript, outside the presence of the jury. The defendants’ attorney questioned certain portions of the tape recording in which he thought some conversation was missing, and the trial court allowed the defendants the opportunity to have an expert witness testify concerning alleged “discontinuities” on the tape recording. That expert witness testified that he and an assistant marked 12 places on the recording at which they believed a discontinuity existed. During the expert’s testimony, a compact disc or “CD” recording the expert had made from the tape recording was also played for the jury and admitted into evidence.

On appeal, the defendants argue (1) that an oral contract for the sale of securities pursuant to an employment contract violates the Statute of Frauds; (2) that Bentley failed to present sufficient evidence to establish that a contract existed between him and the defendants; and (3) that the duplicate tape recording should not have been admitted into evidence when the original was available. No issue concerning the amount of the verdict is raised by the defendants in their brief, except for the single statement that, “Assuming [Bentley’s] version of the contract [is] correct, then he would only be entitled to $519,000, or 30% of the difference between the cost of the company in 1993 and the sales price of [$]5.6 million.” However, the defendants’ postjudgment motion asserted only that Bentley was not entitled to recover at all and raised no issue of excessive or unproven damages.

I. Statute of Frauds

The defendants first argue that an oral contract for the sale of securities pursuant to an employment contract violates the Statute of Frauds. As was the case with their presentation to the trial court, they have not cited any Alabama case on point in their brief to this Court. They state in that brief that “[t]he only real issue is whether in fact the transaction described by [Bentley] can be properly described as a ‘sale’ of securities.” The defendants assert that if we were to consider the alleged agreement to employ Bentley solely as a “sale of securities,” Bentley’s breach-of-contract claim would be barred by the Statute of Frauds.

In 1994, when the alleged agreement took place, § 7-8-319, Ala.Code 1975, read as follows:

“A contract for the sale of securities is not enforceable by way of action or defense unless:
“(a) There is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker sufficient to indicate that a contract has been made for sale of a stated quantity of described securities at a defined or stated price; or
“(b) Delivery of the security has been accepted or payment has been made but the contract is enforceable under this provision only to the extent of such delivery or payment; or
“(c) Within a reasonable time a writing in confirmation of the sale or purchase and sufficient against the sender under paragraph (a) has been received by the party against whom enforcement is sought and he has failed to send written objection to its contents within 10 days after its receipt; or
“(d) The party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract was made for sale of a stated quantity of described securities as a defined or stated price.”

Section 7-8-319 was repealed on January 1, 1997, and was replaced by § 7-8-113, Ala.Code 1975, which states:

“A contract or modification of a contract for the sale or purchase of a security is enforceable whether or not there is a writing signed or record authenticated by a party against whom enforcement is sought, even if the contract or modification is not capable of performance within one year of its making.”

However, the Alabama Comment to § 7-8-113 explains that this section is applicable only to transactions in the organized securities market, e.g., the sale or purchase of securities through a stock exchange or the over-the-counter securities market, and that all other agreements are subject to Alabama’s general Statute of Frauds, § 8-9-2, Ala.Code 1975. Section 8-9-2 was also amended January 1, 1997, to provide, in pertinent part:

“In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
“(8) Notwithstanding Section 7-8-113, every agreement for the sale or purchase of securities other than through the facilities of a national stock exchange or of the over-the-counter securities market.”

The evidence supports an inference that part of Bentley’s employment contract with the defendants was that, in consideration of Bentley’s acceptance of employment and upon his increasing Bacadam’s monthly revenues as its manager, Byrd would transfer an ownership interest in Bacadam to Bentley. Whether this type of arrangement constitutes a “sale of securities” under the Statute of Frauds has not been addressed in this State; we therefore consider how other jurisdictions have answered it.

In Hiller v. Franklin Mint, Inc., 485 F.2d 48 (3d Cir.1973), the United States Court of Appeals for the Third Circuit, relying on Baldassarre v. Singer, 444 Pa. 100, 282 A.2d 262 (1971), held that a similar agreement was a contract of employment and not a contract for the sale of securities in violation of New York’s or Pennsylvania’s Statute of Frauds. In Hil-ler, as is the case here, if the agreement had been considered a “sale of securities,” it would have been in violation of those Statutes of Frauds. In Baldassarre, pursuant to an oral contract, two chemists agreed to accept employment with a company, each receiving an annual salary of $13,000 and an equal division of 10 percent of the stock of the company, i.e., each would receive 5 percent of the stock. The company and its owner appealed from a lower court’s order requiring the ownership interest to be transferred to the chemists, arguing, in part, that the agreement was a “sale of securities,” and was in violation of the Statute of Frauds. The Supreme Court of Pennsylvania stated:

“By its own terms, § 8-319 [of the Uniform Commercial Code] only applies to ‘a contract for the sale of securities.’ We are not convinced that this section is applicable to the transaction in question. Although ‘sale of securities’ is nowhere defined, § 2-106 defines ‘sale’ as: ‘A “sale” consists in the passing of title from the seller to the buyer for a price.’ There is no ‘price’ for stock transferred pursuant to an employment contract. The only consideration is the employment itself. If appellants are correct that an employment contract is a sale for purposes of § 8-319, the Uniform Commercial Code’s statute of frauds on securities, then the two chemists, by leaving their previous employment and working for Rare Metals, have made ‘payment’ for the stock, and thus are entitled to enforce their oral contract under the terms of § 8-319(b). However, we do not believe that such an awkward use of language is necessary. We believe it much more reasonable to state that the contract in question is simply not a contract of sale.”

444 Pa. at 103, 282 A.2d at 264.

In Bowers Steel, Inc. v. DeBrooke, 557 S.W.2d 369 (Tex.Civ.App.1977), an employee sued his employing corporation alleging that it had breached an oral contract of employment by failing to transfer 20 percent of the stock in the corporation to him. A jury returned a verdict in favor of the employee. On appeal, the Texas Court of Civil Appeals stated, in pertinent part:

“It is noted that the appellant treats the oral contract as requiring future payment by appellee of the stock, while appellee claims that he is entitled to the stock as consideration for his accepting employment with appellant. The question was determined by the jury adversely to appellant, and, therefore, we hold that the prohibition of § 8.319 does not apply. By the terms of § 8.319(2), the prohibition does not apply where payment has been made. Baldassarre v. Singer, 444 Pa. 100, 282 A.2d 262 (1971).”

557 S.W.2d at 374.

In Jones v. Cecil Sand & Gravel, Inc., 97 Md.App. 87, 627 A.2d 60 (1993), the Maryland Court of Special Appeals also addressed this issue, and after setting out the same language quoted earlier from Baldassarre, stated further:

“Several courts have employed the same approach and treated such transactions as contracts for employment rather than as contracts for the sale of stock. See McDermott v. Russell, 523 F.Supp. 347, 350-51 (E.D.Pa.1981)(court refused to dismiss action based on evidence of an oral contract for the delivery of stock in exchange for services); Hiller v. Franklin Mint, Inc., 485 F.2d 48, 51 (3d Cir.1973)(arrangement treated as contract for employment); Spinney v. Hill, 81 Minn. 316, 84 N.W. 116 (1900)(in an action to recover damages and the par value of promised stock the court rejected defendant’s argument that the compensation in stock shares was a sale of chattel). In Spinney v. Hill, 81 Minn. 316, 84 N.W. 116 (1900), the Supreme Court of Minnesota decided that ‘[a]n agreement to pay for one’s services in goods, chattels, or choses in action is not a sale, within the letter or the spirit of the statute of frauds. It is a mere agreement as to the method of compensation.’ Id. 84 N.W. at 117. We are compelled by the forceful logic of this statement. Other courts have construed ‘payment’ to include the act made in reliance on the contract. See Cumming v. Johnson, 616 F.2d 1069, 1073 n. 4 (9th Cir.1979).”

97 Md.App. at 92-93, 627 A.2d at 62. See also Thompson v. Kohl, 216 Ga.App. 148, 151, 453 S.E.2d 485, 488 (1994)(“Although the question is debatable, we hold that an oral agreement by an employer to transfer corporate stock to an employee for a non-monetary consideration is not a ‘sale’ within the meaning of UCC § 8-319.”).

The Bowers Steel court distinguished two cases cited by the defendants, Mildfelt v. Lair, 221 Kan. 557, 561 P.2d 805 (1977), and Scarpinato v. National Patent Development Corp., 75 Misc.2d 94, 347 N.Y.S.2d 623 (Sup.Ct.1973), by stating that in those two cases “the oral promise was an option to purchase in the future for a price.” 557 S.W.2d at 374. As was the case in Bowers Steel, the evidence here supports an inference, which was accepted by the jury, that in consideration for his acceptance of employment and increasing Bacadam’s monthly revenues, Bentley would receive a 30 percent ownership in the company. Accordingly, this case also is distinguishable from those situations in which an employee is offered an “option to purchase [stock] in the future for a price.”

The Jones court discussed Burns v. Gould, 172 Conn. 210, 374 A.2d 193 (1977), a case also cited by the defendants to this Court, stating as follows:

“In Burns v. Gould, ... the Supreme Court of Connecticut found the Baldas- sarre court’s rationale regarding the price term to be unpersuasive. The Connecticut court treated ‘price’ as ‘something which one ordinarily accepts voluntarily in exchange for something else ... the consideration given for the purchase of a thing,’ quoting Black’s Law Dictionary (Rev. 4th Ed.), and concluded that the plaintiffs action met the requirements of this definition. In Bums, the plaintiff, who had joined with the defendant in developing a convalescent home and forming a corporation for it, received 25% of the stock of the corporation with an option to buy an additional 24% of the stock for $12,000. The defendant later formed another corporation to develop a nursing home, but none of its stock was issued to the plaintiff. The plaintiff alleged that the parties had an oral agreement concerning the second corporation, in which plaintiff was to receive for his services in developing the project the same percentage of stock ownership — 25% immediately with an option to purchase 24% of the stock for $12,000. The Connecticut appellate court, reversing the trial court, held that the statute of frauds section of the UCC was applicable to the transaction. The court apportioned plaintiffs recovery based on the amount of stock actually paid for by plaintiff through his services.
“In Bums, the court analogized the treatment of contracts for the sale of goods in exchange for a price paid in realty or goods under Article 2 (Sale of Goods) of the UCC to the employment contract situation. We believe that a contract for employment is substantially different from a contract in which the price is paid in realty or goods.”

97 Md.App. at 93-94, 627 A.2d at 63. Other cases cited by the defendants to support their argument that the agreement between Bentley and the defendants was a “sale of securities” are Bentley v. ASM Communications, Inc., No. 91 CIV. 0086 (S.D.N.Y., June 11, 1991) (not published in F.Supp.), and Cooling Tower Erectors, Inc. v. Williams, No. 81 C 6678 (N.D.Ill., October 1, 1984)(not published in F.Supp.).

While Bentley and Cooling Tower Erectors, both unpublished opinions by federal district courts, do support the defendants’ argument, we are most persuaded by those jurisdictions that view similar agreements not as “sales of securities,” but as employment contracts, and we conclude that the agreement between Bentley and the defendants was an employment contract and was not subject to § 8-9-2, Ala.Code 1975, Alabama’s Statute of Frauds.

II. Sufficient Evidence to Support a Contract

The defendants further argue that there was not sufficient evidence to prove that a contract existed between Bentley and the defendants. The jury’s verdict and the trial court’s denial of the defendants’ post-judgment motion creates a strong inference that there was sufficient evidence to establish the existence of a contract. This Court has stated:

“A jury verdict carries a strong presumption of correctness, and no ground for a motion for new trial will be more carefully scrutinized or more rigidly limited than an assertion that the verdict is contrary to the weight of the evidence. The presumption in favor of the verdict is strengthened when the circuit court denies a motion for a new trial. On appeal, this Court will not reverse the denial of a motion for a new trial unless, after allowing all reasonable inferences in favor of the verdict, it concludes that the weight and preponderance of the evidence is so decidedly against the verdict as to convince the Court that the verdict is plainly and palpably wrong and unjust. Delchamps, Inc. v. Larry, 613 So.2d 1235, 1239 (Ala.1992); S.S. Kresge Co. v. Ruby, 348 So.2d 484, 488-89 (Ala.1977); Merchants Bank v. Cotton, 289 Ala. 606, 609, 269 So.2d 875, 878 (1972).”

Reed v. Boyd, 642 So.2d 448, 450 (Ala.1994).

As previously discussed, testimony was presented at trial by Bentley and Jennings from which the jury could have reasonably inferred that a contract existed between Bentley and the defendants. Accordingly, we conclude that there was sufficient evidence to support the jury’s verdict and the trial court’s denial of the defendants’ postjudgment motion.

III. Admissibility of Duplicate Tape Recording

The defendants’ last argument is that a duplicate tape recording should not be admissible when the original recording is available. As subissues of their argument, the defendants argue that the admission of the duplicate tape recording violated the best evidence rule and that the'recording was not properly authenticated. In their brief to this Court, the defendants state that the original tape recording was not admitted into evidence. However, our review of the record reveals that the original tape recording was admitted into evidence. The record contains the following dialogue between the trial court and Bentley’s attorney:

“THE COURT: Now, you offer the tape, which is Number 1 and the transcript, which is number 1A.
“[Bentley’s attorney]: Well, I want to offer the small tape as number 1. [The record reflects that Exhibit 1 was admitted into evidence at this point.]
“THE COURT: Do it this way, then, rather than that. Do the small tape as 1.
“[Bentley’s attorney]: All right.
“THE COURT: The large tape as 2, not 1A.
“[Bentley’s attorney]: All right.
“THE COURT: And you want the transcript as 3?
“[Bentley’s attorney]: That will be fine and better. [The record next reflects that Exhibits 2 and 3 were admitted into evidence at this point.]”

The defendants also offered a CD made by their expert witness from the duplicate tape; the offering of the CD into evidence appears in the record as follows: -

“THE COURT: Well, we’ve got these exhibits you’re offering Robert [defendants’ attorney].
“[Defendants’ attorney]: Yes, sir.
“THE COURT: You’re offering 2.
“[Defendants’ attorney]: Yes, sir. I offered 1, 2, and 3.
“THE COURT: What was 3?
“[Defendants’ attorney]: I thought the CD was — well, I said 3 when I was talking about the charts. My apologies.
“THE COURT: It’s just two.
“[Defendants’ attorney]: 1 and 2, yes, sir, the entire 1.
“THE COURT: The CD is in....”

The record also shows that the trial court delivered all exhibits to the jury for its deliberation, and among the exhibits included in that record is the original mi-crocassette tape recording, marked as “Plaintiffs Exhibit 1.” Also, the defendants acknowledge in their brief to this Court that a portion of the original recording was played for the jury; they state, however, that “[o]nly a portion was played, and that was at least one day after there was an objection by [Defendants’] Counsel concerning certain discontinuities on the tape.” Obviously, once the original microcassette recording was admitted into evidence as plaintiffs exhibit 1, and played partially for the jury, there was nothing to prevent the defendants during trial, or the jury during its deliberations, from playing it in its entirety. The jury had before it as trial exhibits three different recordings — the original microcassette recording, the larger cassette that had been copied from the micro'cassette recording, and the CD made by the defendants’ expert witness— and a transcription of the contents of the larger cassette recording that it could compare to'any of the recordings for inconsistencies and “discontinuities” and from which it could assign the appropriate weight to give the recordings, as it saw fit. See, e.g., Avery v. State, 589 So.2d 1313, 1315 (Ala.Crim.App.1991)(“The fact that parts of a tape recording were inaudible would not affect the admissibility of the recording but the weight which the jury places on the evidence.”). Thus, we conclude that there is no basis for the defendants’ argument that the original recording was not admitted into evidence.

The defendants argue that the admission of the duplicate recording violates the best evidence rule. However, our review of the record shows that the defendants failed to object to the admissibility of the duplicate recording on that ground. The only mention of an objection based on the best evidence rule was to the admissibility of the transcript of the recording. Moreover, Alabama’s best evidence rule, Rule 1002, Ala. R. Evid., is not applicable to tape recordings. The Advisory Committee’s notes to Rule 1001(1), Ala. R. Evid., which defines “writings,” state, in pertinent part:

“Alabama’s best evidence rule continues applicable to writings only. Adoption of this rule is a rejection of the corresponding federal rule, which expands the best evidence principle to cover recordings and photographs. See Fed.R.Evid. 1001(1). Chattels generally remain outside the scope of the best evidence principle. See Jones v. Pizza Boy, Oxford, Inc., 887 So.2d 819 (Ala.1980). Tape recordings, for example, present no best evidence issue. O’Daniel v. O’Daniel, 515 So.2d 1248 (Ala.Civ.App.), rev’d, 515 So.2d 1250 (Ala.1987)(holding re-recording of taped conversation admissible without accounting for unavailability of the original tape). See C. Gamble, McElroy’s Alabama Evidence § 212.01 (4th ed.1991).”

See also Ex parte O’Daniel, 515 So.2d 1250 (Ala.1987), and Withee v. State, 728 So.2d 684 (Ala.Crim.App.1998).

The defendants further contend that Bentley failed to properly authenticate the recording. Before the recording was played to the jury, Bentley testified as to the identification of the voices on the tape. The trial court then further questioned Bentley as follows:

“THE COURT: Mr. Bentley, did you make this recording yourself?
“THE WITNESS: Yes, sir.
“THE COURT: After you made the recording, what did you do with the tape?
“THE WITNESS: T took it to my attorney’s office.
“THE COURT: That attorney being who?
“THE WITNESS: That being Buck—
“[Bentley’s attorney]: — Watson.
“THE WITNESS: — Watson. I couldn’t think of it. Buck Watson in Huntsville, Alabama.
“THE COURT: Do you know what he did with the tape?
“THE WITNESS: He told me that he transcribed it. We played it in his office.
“THE COURT: You did?
“THE WITNESS: Yes, sir.
“THE COURT: What happened to the tape after you gave it to Mr. Watson, if you know.
“THE WITNESS: To the best of my knowledge, Mr. Watson wanted to — I don’t know what the term is, but wanted to enjoin [sic] a Birmingham law firm, and that was Mr. Dauphin [Bentley’s attorney]. And they forwarded the tape here and the transcript.
“THE COURT: Are you going to be able to tie up the tape?
“[Bentley’s attorney]: Yes, sir.
“THE COURT: All right. With that condition, what I’m going to do, ladies and gentlemen, is let you hear the tape. And there’s been a transcription made by Mr. Dauphin’s office that reportedly reflects what you will hear on the tape.
“Now we’ve been listening to the tape and looking at the transcript. You and you alone, though, are the sole and exclusive judges of what you hear on the tape and what you see on the transcription and whether or not they are one and the same. This goes — and you will be the judges as to the credibility and to what weight you want to give this testimony. But I’m going to give you ladies and gentlemen an opportunity to hear it. So go ahead. Pass out your transcripts.”

Counsel for the defendants then renewed a previous objection to the admission of the tape recording into evidence. Bentley further testified, in response to questions from his attorney, as follows:

“Q.... Mr. Bentley, you have listened to the tape and listened to the — and compared it to the transcription.
“A. Yes.
“Q. And is both the tape and the transcription an accurate recording of the conversation that you had with Mr. Byrd?
“A. It’s an exact recording.”

Rule 901, Ala. R. Evid., deals with the “Requirement of Authentication or Identification.” Rule 901(a) states that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” The Advisory Committee’s notes further state, in pertinent part:

“The question of authenticity or proper identification is, in the first instance, for the trial judge as a preliminary matter. See Ala. R. Evid. 104(a). The required foundational showing must consist of evidence ‘sufficient to support a finding that the matter in question is what its proponent claims.’ The evidence of authentication or identification, as under prior Alabama practice, does not have to be conclusive or overwhelming; rather it must be strong enough for the question to go to the jury. Any weaknesses in the foundational showing, insufficient to call for exclusion, go to the weight that the trier of fact is to give the evidence. See Tidwell v. State, 496 So.2d 109 (Ala.Crim.App.1986).”

Under the circumstances of this case, we conclude that the required foundational showing was made to allow for the proper admission of the recording. Any weakness in that showing was subject to the jury’s determination of the evidentiary weight to give the recording. Tidwell v. State, 496 So.2d 109 (Ala.Crim.App.1986).

For the foregoing reasons, we affirm the trial court’s judgment.

AFFIRMED.

MOORE, C.J., and SEE, BROWN, and STUART, JJ., concur.

      . Apparently Bentley was paid the eight percent commission. He makes no argument on appeal relating to that part of the agreement.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    John RUNYANS, Sr. v. Allan LITTRELL and Penny Littrell.
    1010803.
    Supreme Court of Alabama.
    Aug. 23, 2002.
    Rehearing Denied Nov. 8, 2002.
    Tony S. Hebson and Matthew L. Evans of Hebson, Liddon & Slate, Birmingham, for appellant.
    James G. Adams, Jr., of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appel-lees.
   WOODALL, Justice.

John Runyans, Sr. (“Runyans”), brought this action under the Dram Shop Act, § 6-5-71, Ala.Code 1975, seeking to recover from Allan Littrell and Penny Littrell (“the homeowners”) damages resulting from injuries to Runyans’s minor son, John Runyans, Jr. (“Jay”). Runyans appeals from a summary judgment for the homeowners. We affirm.

I.

The relevant facts are undisputed. On May 26, 2000, the homeowners allowed their daughter to have a high school graduation party at their residence. Seventeen-year-old Jay was one of approximately 150 to 200 students at the party. Some of the students, including Jay, brought alcoholic beverages to the party. The homeowners did not provide the minors with alcoholic beverages.

Many of the students, including Jay, openly consumed alcoholic beverages at the party. The homeowners were present during the party and saw persons they knew to be minors consuming alcoholic beverages.

During the party, Jay fell from a porch of the Littrells’ house; he was holding a glass bottle in his hand when he fell. The bottle shattered, resulting in serious lacerations to his left wrist, which required three surgeries to repair.

II.

Runyans argues that he presented substantial evidence showing that the homeowners violated the Dram Shop Act. Specifically, “[h]e contends that because the [homeowners] were hosting an open house party on their premises, and because the [homeowners] were aware that those attending said party[, many of whom were minors,] were consuming alcoholic beverages, ... they violated the Dram Shop Act, § 6-5-71, Ala.Code 1975, by way of violating the Open House Party statute, § 13A-11-10.1, Ala.Code 1975.” Brief of Appellant, at 8.

The Dram Shop Act provides, in pertinent 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(a), Ala.Code 1975 (emphasis added).

“Principles of statutory construction instruct this Court to interpret the plain language of a statute to mean exactly what it says and to engage in judicial construction only if the language in the statute is ambiguous.” Ex parte Pratt, 815 So.2d 532, 535 (Ala.2001). The plain meaning of the Dram Shop Act compels the conclusion that “[o]ne of the elements of the cause of action under the Dram Shop Act is that the defendant provide alcoholic beverages to the intoxicated person....” Martin v. Watts, 513 So.2d 958, 963 (Ala.1987) (emphasis added). It is undisputed that the homeowners did not provide alcoholic beverages to Jay. Under similar circumstances, this Court has affirmed summary judgments for property owners who permitted the consumption of alcohol by minors on their property, but who did not provide the minors with the alcoholic beverages.

In Williams v. Reasoner, 668 So.2d 541 (Ala.1995), this Court held that a homeowner was not liable under the Dram Shop Act “for the wrongful death of a minor in a traffic accident that occurred after the minor had left the homeowner’s residence, if the death was proximately caused by the intoxication of another minor guest, who had consumed beer, which was not furnished by the homeowner, at the homeowner’s residence.” 668 So.2d at 542. There, it was alleged that the homeowner “permitted the minor, while he was the homeowner’s guest, to consume alcoholic beverages he had purchased.” Id. In disposing of the claim under the Dram Shop Act, this Court stated:

“Martin v. Watts, [513 So.2d 958 (Ala.1987) ], is dispositive of the claim alleging liability under the Dram Shop Act. In Martin v. Watts, the defendant, Richard Watts, occupied the same position as does the homeowner in this case. Watts allowed his lake house to be used by high school students, under 18 years of age, for a party, with knowledge- that they would drink alcohol at the party. Watts was present during the party, but he did not provide the minors with alcoholic beverages. A minor who became intoxicated at Watts’s lake house, had an automobile accident after leaving the lake house, and injured the plaintiffs, who sued Watts and others, alleging liability under the Dram Shop Act and alleging common law negligence. The trial court granted Watts’s motion for a summary judgment; this Court unanimously affirmed that summary judgment. See, also, Liao v. Harry’s Bar, 574 So.2d 775 (Ala.1990), and Baker v. Pi Kappa Phi Fraternity, 628 So.2d 423 (Ala.1993).”

668 So.2d at 543 (emphasis added).

The facts of this case are indistinguishable from the facts in Williams and Martin. Also, the Dram Shop Act has not been amended since those decisions. However, Runyans contends that the homeowners “violated the Dram Shop Act ... by way of violating the Open House Party statute.” Brief of Appellant, at 8. In Williams, this Court stated:

“Since April 21, 1994, it has been a misdemeanor for an adult homeowner to allow an ‘open house party’ at her residence where alcohol is consumed by persons under the age of 21 years. Ala. Code 1975, § 13A-11-10.1. The occurrence that is the basis for this appeal occurred before the effective date of that statute. We do not address what effect, if any, § 13A-11-10.1 would have on our decision if that Code section had been in effect at the time of the occurrence made the basis of this appeal.”

Williams, 668 So.2d at 542 n. 1. Today, we must address that issue. We hold that § 13A-11-10.1 does not impose Dram Shop Act liability upon homeowners who did not provide the minor with the alcoholic beverages the minor consumed, with their knowledge, on their premises.

Section 13A-11-10.1 provides, in pertinent part:

“(b) No adult having control of any residence, who has authorized an open house party at the residence and is in attendance at the party, shall allow the open house party to continue if all of the following occur:
“(1) Alcoholic beverages or controlled substances are illegally possessed or illegally consumed at the residence by a person under the age of 21.
“(2) The adult knows that an alcoholic beverage or controlled substance is in the illegal possession of or is being illegally consumed by a person under the age of 21 at the residence.
“(3) The adult fails to take reasonable action to prevent illegal possession or illegal consumption of the alcoholic beverage or controlled substance.”

Obviously, there can be a violation of § 13A-ll-10.1(b) without any finding that the adult having control of the residence provided alcoholic beverages to any minor. Since such a finding is a sine qua non of a claim under the Dram Shop Act, Run-yans’s contention is meritless, and the trial court properly entered the summary judgment for the homeowners.

The judgment of the trial court is affirmed.

AFFIRMED.

MOORE, C.J., and HOUSTON, LYONS, and JOHNSTONE, JJ., concur.


author: STUART, Justice. LYONS, Justice STUART, Justice.

text:
    Ex parte SEAMAN TIMBER COMPANY, INC., et al. (In re Melford O. Cleveland et al. v. Seaman Timber Company, Inc., et al.)
    1001658.
    Supreme Court of Alabama.
    Sept. 13, 2002.
    Opinion on Overruling of Applications for Rehearing Nov. 22, 2002.

      Thomas H. Brown, Birmingham (brief in support of application for rehearing filed by Belle H. Stoddard, Birmingham), for petitioners.
    Hewitt L. Conwill of Conwill & Justice, Columbiana; and J. Frank Head of Wallace, Ellis, Fowler & Head, Columbiana, for respondents.
   STUART, Justice.

Seaman Timber Company, Inc., and others, defendants in an action pending in the Shelby Circuit Court, petition for a writ of mandamus directing the Shelby Circuit Court to dismiss this action with prejudice or to grant whatever other relief this Court deems appropriate, just, and proper as a sanction for the respondents’ willful refusal to comply with the trial court’s discovery orders.

In 1963, Jim Seaman, Janet Seaman, and Seaman Timber Company, Inc. (hereinafter referred to collectively as “Seaman”), purchased land from members of the family of Melford 0. Cleveland. The purchased property was adjacent to land owned by Melford 0. Cleveland, his wife, Belle H. Cleveland (Melford and his wife are hereinafter referred to collectively as “the Clevelands”), and his aunt Sarah Head. The property was sold with the specific understanding that Seaman intended to build and to operate a lumber mill and wood-preserving operation on the property.

In April 1999, the Clevelands and Head sued Seaman, alleging that Seaman had contaminated their land, that Seaman had been doing so continuously since 1963, and that Seaman had thereby damaged their land and had caused them to suffer personal injuries. The Clevelands and Head asked for preliminary and injunctive relief, other equitable relief, and compensatory and punitive damages.

Because of the advanced ages of the plaintiffs (Melford 0. Cleveland was 75 and Sarah Head was 92 when this action was filed), Seaman attempted to schedule depositions soon after it was served with the complaint. Seaman asserts that Head’s deposition was of critical importance because, it argued, her testimony would refute most of Melford Cleveland’s claims and would substantiate Seaman’s contentions.

Head’s deposition was scheduled four or more times (twice on dates selected by the Clevelands, once pursuant to a court order, and other times on dates selected by Seaman). On May 3, 1999,.shortly after Seaman was served with the complaint in this case, its counsel telephoned the counsel for the Clevelands and Head (hereinafter referred to as “the Clevelands’ counsel”) in an effort to schedule the Clevelands’ and Head’s depositions to begin on May 18, 1999, or for Clevelands’ counsel to provide an alternative date. The Clevelands and Head provided no alternative date for depositions, so Seaman scheduled the depositions to begin on May 18, 1999. Late in the afternoon of May 17, 1999, the Cleve-lands and Head canceled the depositions. Seaman’s counsel requested that the Clevelands’ counsel get back in touch with him in the near future to schedule the depositions “because of Ms. Head’s advanced age.” On May 18, Seaman also served the Clevelands and Head with Seaman’s first Rule 34, Ala. R. Civ. P., request for production of documents and things. Having not heard back from the Cleve-lands’ counsel regarding deposition dates, Seaman’s counsel wrote the Clevelands’ counsel on May 26, 1999, suggesting that depositions begin on June 7, 1999, and requesting alternative dates if the June 7 date was inconvenient. Again, no response was received from the Clevelands and Head, so Seaman noticed the plaintiffs’ depositions beginning on June 7, 1999.

By letter dated June 2, 1999, the Cleve-lands’ cocounsel, Frank Head, advised Seaman’s counsel that he would be unable to attend the depositions because he was involved in a trial and that the depositions “may need to be rescheduled.” Mr. Head invited defense counsel to contact him to discuss possible deposition dates. On June 3, 1999, Seaman’s counsel telephoned Mr. Head and left a message for Mr. Head to the effect that he interpreted the letter as canceling the scheduled depositions and he requested that Mr. Head contact him at his earliest convenience to reschedule the depositions, stating: “I repeat that it is imperative that we get this discovery in as soon as possible, considering the advanced age of your plaintiff, Mrs. Head.... ” On June 8, 1999, Seaman’s counsel wrote Mr. Head, confirming that the Clevelands and Head would be available the last week of July for the depositions. Seaman proposed commencing with Sarah Head’s deposition on July 26 because: “[A]s we have discussed, I feel the greatest pressure to get the deposition of plaintiff Sarah Head in, because of her age.” Having not héard from the Clevelands’ counsel, Seaman’s counsel scheduled Sarah Head’s deposition for July 26 and the depositions of the Clevelands in August. On July 19, 1999, Mr. Head canceled Sarah Head’s deposition. The depositions of M.O. Cleveland and Belle Cleveland, which were scheduled to begin on August 2, 1999, were also canceled.

On July 19, 1999, the trial court ordered the Clevelands and Head to comply with the Seaman’s first request for production in 21 days, that is, by August 9, 1999. Seaman’s counsel again corresponded with the Clevelands’ counsel on July 20, 1999, requesting cooperation in scheduling Sarah Head’s deposition in the very near future because of Sarah Head’s advanced age. The Clevelands’ counsel did not respond. On July 22, 1999, Seaman filed a motion for an order scheduling the deposition of Sarah Head.

On August 13, 1999, Seaman filed its “second” Rule 37, Ala. R. Civ. P., motion to dismiss for failure to comply with a court order and for failure to allow discovery. This motion was based on the Cleve-lands and Head’s failure to comply .with the trial court’s .July 19, 1999, discovery order for document production and their failure to produce any documents in the case despite repeated requests; their failure to submit to depositions despite repeated schedulings of, and attempts to .schedule, depositions; their failure to respond to Seaman’s requests for admission; their failure to prosecute the case; and prejudice to Seaman by the Clevelands and Head’s failure to allow discovery— “[Bjecause of plaintiffs’ advanced ages, Seaman Timber is prejudiced every day that discovery is delayed.” (Brief in Support of Seaman’s Petition for Writ of Mandamus at 13.) The Clevelands and Head filed nothing in opposition tó the motion. Also,' on August 13, 1999, the trial court set all pending motions for hearing on September 2, 1999. On September 1, 1999, Seaman served by hand delivery and filed a memorandum in support of its discovery motions and a “Notice of Filing of Additional Supporting Materials.” On the first page of the memorandum, in bold type, Seaman reminded the trial court:

“It is extremely significant that one of the Plaintiffs, Sarah Head, is in her eighties or even nineties, and the lead plaintiff, Melford 0. Cleveland, is in his mid-seventies. It is of the essence of defendants’ ability to defend this case that timely discovery from Plaintiffs take place, before one or more of the Plaintiffs is deceased or too ill to permit discovery.”

Seaman also pointed out to the trial court that, although they had retained counsel, M.O. Cleveland and Belle Cleveland were both experienced attorneys.

On September 2, 1999, the trial court conducted a hearing on Seaman’s discovery motions. At that hearing, Seaman’s counsel argued that if the action was not dismissed then, it certainly should be dismissed if one or more of the plaintiffs died or otherwise became incapacitated before' his or her deposition could be taken. The trial court responded that it would not render an opinion on a hypothetical situation. ‘ On September 9, 1999, the trial court entered a discovery order. That order stated, in part:

“1. Plaintiffs are ordered to submit to depositions in the near future.. Counsel for the parties are directed to schedule the depositions as soon as possible, and Plaintiffs are ordered to attend in accordance with that scheduling, barring an emergency.”

The trial court also ordered the Clevelands and Head to produce “forthwith” the documents and things as to which it had already ordered production. The trial court further deemed conclusively established paragraphs 4 through 12 of Seaman’s first requests for admissions and paragraphs 1 through 24 of Seaman’s second requests for admissions.

Pursuant to that discovery order, the Clevelands and Head scheduled Sarah Head’s deposition for September 27, and scheduled M.O. Cleveland’s deposition beginning on October 19. On the morning of September 27, 1999, Sarah Head did not appear for deposition, and the Clevelands’ counsel advised Seaman’s counsel that Ms. Head would not be able to be deposed on that date because she had a fever ancí a possible kidney infection. The Clevelands’ counsel agreed to provide Seaman’s counsel with a written medical excuse for Sarah Head’s absence and agreed that he would contact Seaman’s counsel as soon as possible so that Sarah Head’s deposition could be taken later that same week, i.e., September 28-30,1999.

Seaman filed its third Rule 37 motion to dismiss for failure to allow discovery on September 29, 1999. The events surrounding the scheduling of Ms. Head’s deposition were not included. Instead, the motion was based primarily on the Cleve-lands and Head’s refusal to answer interrogatories that were served in July and their general refusal to submit to discovery. Again, Seaman reminded the trial court: “[BJecause of plaintiffs’ advanced ages, [Seaman] is prejudiced every day that discovery is delayed.” The Cleve-lands and Head filed nothing in opposition to this motion, but M.O. Cleveland filed answers to the interrogatories on October 15, 1999. On October 1, 1999, the trial court ordered that it would conduct a telephone conference call, to be initiated by Seaman’s counsel, on Seaman’s Rule 37 motion. Despite several efforts, Seaman’s counsel was unable to schedule this conference call with the Clevelands’ counsel.

M.O. Cleveland appeared for deposition during parts of three days in October 1999. Seaman was unsuccessful in several informal efforts between November 1999 and March 2000 to schedule the depositions of Sarah Head and Belle Cleveland and to complete M.O. Cleveland’s deposition, and to obtain other discovery .information from the plaintiffs.

By an order dated February 9, 2000, the trial court scheduled the case for a status conference on April 10, 2000. Sometime during the period of March 10-13, 2000, Seaman served its notices of intent to serve subpoenas on several witnesses, including the Baptist Health Center Montev-allo Clinic and Dr. Karin Rock (relating to Sarah Head) and Dr. Carl Sanfelippo (relating to M.O. Cleveland). The subpoenas to Dr. Rock and the Montevallo Clinic requested, among other things: “All files, records, documents and items of any and all kinds that relate to Sarah Head.... ” The subpoena was served on the clinic on April 12, 2000. The clinic mailed what purported to be the subpoenaed documents to Seaman’s counsel on April 19, 2000.

Because the Clevelands and Head had not responded to Seaman’s informal efforts from November 1999 to March 2000 to schedule the depositions, Seaman,. on March 15, 2000, served deposition notices, with document requests, for the depositions of M.O. Cleveland and Belle Cleveland, scheduling the depositions for March 28, 2000. Also, Seaman’s counsel asked whether Sarah Head’s health would permit her to be deposed and again confirmed.his willingness to take Ms. Head’s deposition at whatever venue was convenient for her.

On March 17, 2000, the Clevelands’ counsel advised Seaman’s counsel that M.O. Cleveland could not be available for depositions as scheduled; he offered no alternative dates. Seaman’s counsel responded by asking for alternative dates, asking whether Belle Cleveland could be available on the scheduled date, and asking whether Ms. Head’s health would permit her to give a deposition. The Clevelands’ counsel did not respond.

On April 5, 2000, Seaman filed what it styled as a “Supplement and Update to Third Rule 37 Motion to Dismiss and For Other Appropriate Sanctions and Relief.” As its title indicates, this document advised the trial court of discovery occurrences and nonoccurrences since the filing of Seaman’s' third motion, including Seaman’s inability to obtain the deposition of Sarah Head:

“Because of her advanced age and possible health problems, [Seaman’s] counsel did not wish to schedule the deposition of the third Plaintiff, Sarah Head, without assurances from Plaintiffs’ counsel that Plaintiff Head is capable of giving a deposition. Accordingly, in addition to requesting dates for the completion of the depositions, hereto, [Seaman’s] counsel has asked whether Plaintiff Sarah Head’s health allows her to give a deposition. See Exhibit D, the March 14 and March 20, 2000, letters. None of those inquiries has been responded to.
“From early on in the -litigation, because of Plaintiff, Sarah Head’s advanced age, counsel for [Seaman] vigorously sought to take her deposition because of the risk that her health would deteriorate so much that she would be unable to give a deposition if it were delayed. The last time the deposition was scheduled, it was cancelled at the last minute by Plaintiffs’ counsel (See footnote 4 to Defendants’ Third Rule 37 Motion To Dismiss filed September 29, 1999.) [Seaman] later received from the offices- of Plaintiffs’ counsel the faxed note attached hereto as Exhibit E. [Exhibit E is not attached to this opinion.] There has been no response from Plaintiffs’ counsel to the efforts of [Seaman’s] counsel to schedule the deposition of Plaintiff Sarah Head from that time to the present.
“The prejudice to [Seaman] is obvious and it continues. For instance, there appears to be a very real possibility that, because of Plaintiffs’ failure and refusal to produce Plaintiff, Sarah Head for a deposition, it may now be impossible for [Seaman] to obtain her deposition testimony in this case.”

In addition, the supplement advised the trial court of the Clevelands’ unilateral “cancellation” of the deposition of a properly subpoenaed witness, Jeff DeGraffen-ried. It also advised the court of the unsuccessful efforts of Seaman’s counsel to schedule a conference call relating to the previous motion and the failure to complete M.O. Cleveland’s deposition. The Clevelands and Head filed nothing in opposition to Seaman’s supplement.

On April 10, 2000, the trial court conducted its status conference and hearing on the pending motions. The Clevelands’ counsel did not advise the trial court or Seaman’s counsel that Sarah Head was no longer capable of giving a deposition and that she had not been capable since the end of 1999 or the beginning of 2000. The trial court stated its intention to sanction the plaintiffs for their discovery recalcitrance, and it requested an affidavit from defense counsel to support such sanctions. Although Seaman’s counsel submitted the requested affidavit, as well as a proposed discovery order, on April 21, 2000, and although the plaintiffs filed nothing in response, the trial judge never entered the order that he indicated would be entered.

In the meantime, on April 17, 2000, M.O. Cleveland visited the clinic that had provided treatment for Sarah Head, allegedly to express his appreciation for its care of Sarah Head. The clinic had last seen Ms. Head over two months earlier, on February 7, 2000.

On August 30, 2000, Seaman took the deposition of Dr. Karin Rock, Ms. Head’s physician. Seaman did not learn until it took Dr. Rock’s deposition and she brought with her the original clinic file that in the records the clinic had previously produced in response to Seaman’s subpoenas it had not included documents showing M.O. Cleveland’s instructions that Dr. Rock not advise Seaman’s counsel whether Sarah Head could give a deposition on September 27, 1999, and that Dr. Rock not advise Seaman’s counsel whether Ms. Head could give a deposition in the future. Additionally, Seaman learned for the first time from Dr. Rock’s deposition and the medical file that Ms. Head’s condition on September 27 was not a medical emergency and that she could have given a deposition on that date. In fact, on September 27, Ms. Head was diagnosed with a yeast infection and a rash.

According to Dr. Rock, Ms. Head’s visit to her clinic on September 27, 1999 (the date previously selected by the Clevelands and Head and their counsel for Ms. Head’s deposition), was not a medical emergency and Ms. Head could have given a deposition on that date. Also, according to Dr. Rock, Ms. Head was mentally and physically capable of giving a deposition on other dates for which her deposition had been scheduled and through the end of 1999. With respect to the scheduling of Ms. Head’s deposition for July 26, 1999 (a date provided by the Clevelands and Ms. Head), Dr. Rock testified that Ms. Head was mentally capable of giving a deposition on that date, but that she was in some physical discomfort. Dr. Rock further testified that the deposition could have been taken in such a manner as to accommodate Ms. Head’s physical discomfort.

Dr. Rock’s deposition testimony also revealed that Sarah Head was mentally and physically capable of giving a deposition up until the end of 1999. However, in Dr.Rock’s opinion, by the end of 1999 or early 2000, Ms. Head’s condition had deteriorated to the point that she could no longer give a deposition. Ms. Head later died.

In order to ensure that Seaman had finally obtained the complete medical file on Sarah Head and in order to authenticate that file, Seaman took the deposition of the clime’s custodian of records on September 21, 2000.

Seaman filed its fifth motion to dismiss on December 21, 2000. The Clevelands filed nothing in response. The trial court conducted a hearing on the motion on March 19, 2001; it denied the motion on May 9, 2001. The order denying the motion was issued by the clerk on May 16, 2001. It provided:

“This matter coming before the Court on March 19, 2001 for hearing on pending Motions to Dismiss and after hearing same, the Motion to dismiss is granted in part and denied in part. Claims for personal injury/pain and suffering are stricken. The Plaintiffs have seven (7) days to strike claims for personal injury/pain and suffering or the Court will dismiss those portions of the Plaintiffs’ complaint. Further, the Plaintiffs are to assist Defendant in assuring that witness, DeGraffenreid is deposed within the next thirty (30) days. As to request of Defendant to generally dismiss the Plaintiffs’ complaint is denied.

“/s/ Dan Reeves “Dan Reeves”

The trial court signed its Rule 54(b),_ Ala. R. Civ. P., certification of the order striking the Clevelands’ personal-injury claims on May 24, 2001. The trial court also entered a general scheduling order. On June 5, 2001, Seaman filed a conditional motion to amend its first amended answer in the case, and it requested the trial court to rescind or abate the scheduling order because it intended to file this petition for a writ of mandamus.

Other Discovery Issues

While Seaman’s primary complaint is its inability to depose the now deceased Ms. Head, other problems securing discovery form the background for its demand for relief from the trial court.

a. Document Requests to Plaintiffs

With most of its deposition notices, Seaman also served requests for documents. In addition to the document requests filed with its deposition notices, Seaman served several “stand alone” document requests. Seaman’s counsel was unsuccessful in informal efforts.to. obtain document production from the Clevelands and Head, so Seaman filed a motion to compel production. The Clevelands and Head filed nothing in opposition. The trial court granted this motion on July 19, 1999, and the Clevelands and Head were ordered to comply with the request for production within 21 days of the order, that is, by August 9,1999.

The Clevelands and Head did not comply with this court order; they did not produce any documents despite Seaman’s reminder that the court-ordered production was overdue. The Clevelands and Head did not respond until after Seaman had filed its discovery motion on August 13,1999.

As .already noted, Seaman’s Rule 37 motion to dismiss for failure to comply with the court’s order was filed by Seaman on August 13, 1999, and heard by the trial court on September 2, 1999. After that hearing, and as part of the court’s September- 9, 1999, discovery order, the Cleve-lands were again ordered to produce documents.

Documents were finally produced by M.O. Cleveland after the September 2, 1999, court hearing and also late on the day before his deposition in October 1999. M.O. Cleveland provided documents after Seaman filed several discovery motions and the trial court issued two discovery orders. Belle Cleveland and Sarah Head never produced any documents.

On July 3, 2000, Seaman filed its fourth Rule 37 motion to dismiss. This motion was based primarily on the Clevelands and Head’s failure to answer Seaman’s second interrogatories or to respond to Seaman’s second document requests, as well as the Clevelands and Head’s general refusal to submit to discovery. In the motion Seaman reminded the trial judge that no order had been entered after the April 10, 2000, hearing on its earlier discovery motions. Seaman specifically requested dismissal of the entire action pursuant to the Iverson v. Xpert Tune, Inc., 553 So.2d 82 (Ala.1989), spoliation doctrine regarding destruction or nonpreservation of evidence. No ruling or hearing on this motion occurred in the year 2000.

b. Requests for Admissions to the Plaintiffs

Early in this litigation, Seaman served two sets of requests for admissions on the Clevelands and Head, seeking to authenticate various written statements Seaman had previously received from the Cleve-lands, Sarah Head, and other members of their family. The Clevelands and Head did not respond to the requests, and, as part of its September 9, 1999, discovery order, the court deemed conclusively established paragraphs 4 through 12 of Seaman’s first requests for admissions and paragraphs 1 through 24 of Seaman’s second request for admissions.

Seaman also served the Clevelands with its third requests for admissions, second interrogatories, and second request for production of documents. The Clevelands and Head responded to this with a “statement” that seemed to deny the requests for admissions, but that contained no responses to the follow-up interrogatories or the requests for documents. Informal efforts by Seaman’s counsel to obtain responses were unsuccessful, and Seaman filed its fourth Rule 37 motion to dismiss for failure to allow discovery. That motion was based primarily on the Clevelands and Head’s failure to answer the second interrogatories or to respond to the second document request. The Clevelands and Head filed nothing in opposition to this motion. No ruling or hearing on this motion occurred in the year 2000.

c. Interrogatories to the Plaintiffs

On July 14, 1999, Seaman served their first interrogatories on the Clevelands and Head. Those interrogatories consisted of four interrogatories. Complete responses to those interrogatories were never received from the Clevelands, and no responses were ever received from Sarah Head. The failure of the Clevelands and Head to answer the interrogatories was, in part, the subject of Seaman’s third motion to dismiss filed on September 29, 1999, to which the Clevelands and Head filed no opposition and as to which the trial court made no ruling in the year 2000. The Clevelands and Head never answered Seaman’s second interrogatories.

On April 17, 2000, the Clevelands’ counsel advised Seaman’s counsel that Sarah Head was not capable of signing interrogatories at that time but that he would telephone Seaman’s counsel to update him “on this matter.” No such telephone call occurred.

d. Discovery Requests to Third Parties

In addition to the subpoenas and deposition discovery to obtain medical information relating to Sarah Head, Seaman also served a notice of intent to issue a subpoena for the production of records on Dr. Sanfelippo, one of M.O. Cleveland’s treating physicians. In response to this, the Clevelands filed a motion to quash the subpoena on April 27, 2000. They argued that the subpoena constituted harassment and that it sought irrelevant and immaterial information. Seaman responded on May 2, 2000, by pointing out that the complaint filed by the Clevelands and Head was replete with personal-injury claims and that Seaman was entitled to obtain the Clevelands’ and Head’s medical records unless the personal-injury claims were stricken from the case. Seaman agreed to maintain confidentiality relating to the records. No hearing or ruling on the plaintiffs’ motion and Seaman’s response occurred in the year 2000, but, at a hearing held on March 19, 2001, the trial court indicated that, if the plaintiffs did not strike their claims for personal injury, he would dismiss them. Accordingly, as part of the order dated May 9, 2001, the trial court ordered the Clevelands either to strike the claims for personal injury or the court would dismiss them. The personal-injury claims were dismissed with prejudice by the trial court in its order signed May 24, 2001.

Seaman also served a notice to take the deposition of Jeff DeGraffenried, a witness identified by M.O. Cleveland as having taken photographs and samples on the property owned by the Clevelands and Head. Seaman’s counsel served Mr. De-Graffenried with a subpoena requiring his attendance. When Mr. DeGraffenried did not appear for his deposition as subpoenaed, he advised Seaman’s counsel that the Clevelands’ counsel had advised him that the deposition had been canceled and that he need not appear. The deposition had been scheduled by Seaman’s counsel and Mr. DeGraffenried had been subpoenaed by Seaman’s counsel; the deposition had not been canceled.

The information surrounding this unilateral “cancellation” of the deposition of a properly subpoenaed witness, Jeff DeGraf-fenried, by the Clevelands’ counsel was part of the supplement to the third. Rule 37 motion to dismiss. The Clevelands filed nothing in response to Seaman’s supplement.

The court conducted a hearing on Seaman’s third Rule 37 motion to dismiss on April 10, 2000. Among other things, the trial court indicated that it would enter an order sanctioning the Clevelands and Head, and requested an affidavit from Seaman’s counsel. Although Seaman’s counsel submitted the affidavit and a proposed order and the Clevelands filed nothing in response or opposition, the trial court issued no order during the year 2000.

As part of its order signed over a year later, on May 9, 2001, the trial court ordered that the deposition of Jeff DeGraf-fenried be taken within 30 days. However, Seaman moved to rescind or abate this portion of the order pending resolution of this petition for the writ of mandamus.

Analysis

The standard for this Court’s issuance of a writ of mandamus is often repeated: “there must be (1) a clear legal right on the part of the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the Court.” Ex parte Consolidated Publ’g Co., 601 So.2d 428, 426 (Ala.1992). Mandamus lies to compel the exercise of discretion by a trial court, but lies to compel the exercise of that discretion in a particular manner only when there has been an abuse of discretion. Ex parte ReLife, Inc., 679 So.2d 664 (Ala.1996).

Mandamus is the proper means to obtain review of whether the trial court has abused its discretion in ordering discovery, in resolving discovery matters, and in issuing discovery orders. See, e.g., Ex parte Union Sec. Life Ins., 723 So.2d 34, 37 (Ala.1998); Ex parte Horton, 711 So.2d 979 (Ala.1998). The standard for issuance of the writ in a discovery case is whether there has been a clear showing that the trial court abused its discretion, Ex parte Compass Bank, 686 So.2d 1135 (Ala.1996).

Seaman cites a number of cases in which this Court has affirmed the dismissal of an action for misconduct during discovery: Napier v. McDougal, 601 So.2d 446 (Ala.1992) (affirmance of a dismissal with prejudice for failure to respond to discovery requests); Neal v. AT & T, 454 So.2d 975 (Ala.1984) (affirmance of a dismissal for failure to comply with court order); and Blair v. Cooper, 437 So.2d 1249 (Ala.1983) (affirmance of a dismissal with prejudice for failure to appear for a deposition).

The decisions of this Court addressing discovery and the spoliation of evidence make clear that the ultimate sanction of dismissal (or a default judgment) is the appropriate sanction where the complained-of conduct is willful, especially where the party seeking the discovery is prejudiced by the refusal to comply with discovery orders.

In Napier v. McDougal, supra, this Court quoted with approval from Iverson v. Xpert Tune, Inc., supra:

“ ‘ “[Willfulness” on the part of the noncomplying party is a key factor supporting a dismissal. If one party acted with willful disregard of reasonable and necessary requests for the efficient administration of justice, the application of even so stringent a sanction as dismissal is justified and should not be disturbed.’ ”

601 So.2d at 447-48 (emphasis omitted). This Court went on to hold that there was credible evidence from which the trial court could find that Napier’s misconduct in failing to answer interrogatories even after a court order “was sufficiently willful to justify the imposition of the severe sanction of a dismissal with prejudice.... ”

Similarly, in Neal v. AT & T, 454 So.2d at 977, this Court noted that a dismissal was appropriate where, “a party intentionally or willfully fail[s] to attend a deposition,” and that the evidence indicated that Neal’s failure to attend his deposition was willful, in violation of a court order. Likewise, in Blair v. Cooper, 437 So.2d at 1252, this Court held that dismissal and striking of the plaintiffs’ complaint was a proper sanction based on the plaintiffs’ failure to appear at their rescheduled depositions, because the plaintiffs’ conduct indicated willfulness and bad faith.

In Bowman v. May, 678 So.2d 1135, 1136 (Ala.Civ.App.1996), the Court of Civil Appeals noted that Bowman was “less than diligent in responding to discovery requests, and that he [had] not offered an explanation for his failure to comply, other than to say he is serving in the military.” The Court of Civil Appeals held that a dismissal was proper based both on the plaintiffs failure to comply with discovery and on his failure to prosecute.

Likewise, in Iverson, 553 So.2d at 87, this Court noted that “ ‘willfulness’ on the part of the noncomplying party is a key factor supporting a dismissal” and that Iverson’s failure to preserve an item of evidence was, according to the trial court, gross negligence, and his explanation for his failure to preserve indicated willful misconduct. This Court affirmed, citing willfulness, and also noted that Iverson’s efforts constituted willful or bad-faith spoliation of the evidence, requiring dismissal. Id. at 87 and 89.

In contrast to Seaman’s lengthy recitation of the Clevelands’ discovery abuses, the Clevelands’ response is short and to the point. Essentially, they dispute that they willfully and intentionally prevented Ms. Head’s deposition from being taken. They assert that on the date of the last scheduled deposition of Ms. Head, Ms. Head’s physical condition “was perceived to be a serious health matter, but ... turned out to be, upon examination, not as serious as feared.” As to the legal matters presented, they argue that Seaman does not have a clear legal right to the order sought. Ex parte LifeUSA Ins. Co., 776 So.2d 749 (Ala.2000); Ex parte Palmer, 556 So.2d 390 (Ala.Civ.App.1989). They also maintain that the trial court did not abuse its discretion in failing to dismiss this case because of noncompliance with a discovery order because there was no imperative duty for the court to dismiss this case based on the facts. Ex parte Rogers, 533 So.2d 245 (Ala.1988); Ex parte Old Mountain Props., 415 So.2d 1048 (Ala.1982).

“Discovery matters are within the trial court’s sound discretion, and its ruling on those matters will not be reversed absent a showing of abuse of discretion and substantial harm to the appellant.” Wolff v. Colonial Bank, 612 So.2d 1146, 1146 (Ala.1993), citing Smith v. Wilcox County Bd. of Educ., 365 So.2d 659 (Ala.1978); Selby v. Money, 403 So.2d 218 (Ala.1981); Riddlesprigger v. Ervin, 519 So.2d 486, 487 (Ala.1987); Iverson v. Xpert Tune, Inc.; Ragan v. Blazon Flexible Flyer, Inc., 590 So.2d 882 (Ala.1991); and Napier v. McDougal. The sanction sought by Seaman for the Clevelands’ refusal to allow discovery, in particular, their preventing Seaman from deposing Sarah Head until she was unable to give a deposition and subsequently died, was an outright dismissal of the entire action. The trial court, in this case, exercised its discretion and imposed a lesser sanction, dismissal of the personal-injury claims of the Cleve-lands and Head.

We must determine whether the trial judge abused his discretion by refusing to grant Seaman’s request for dismissal of this action, granting instead.dismissal of only the personal-injury claims. We note first that dismissal of the personal-injury claims tends to indicate that the trial court found the Clevelands’ conduct to be willful. However,, it imposed only a limited sanction. We find the discovery sanction imposed — dismissal of the personal-injury claims — to be wholly inadequate. The Clevelands’ intentional obstruction of the taking of the deposition of Ms. Head prevented Seaman from obtaining evidence relevant to the entirety of the claims, specifically the liability issue, not just the personal-injury claims. Further, the damages based on the personal-injury claims are only a very small portion of the damages claimed in this action. The bulk of the damages claimed are damages to real property. The discovery sanction imposed must be proportional to, and compensatory of, the discovery abuse committed.

Because the discovery sanction imposed is wholly inadequate, we grant the petition and issue the writ of mandamus.

The sanctions available under Rule 37, Ala. R. Civ. P., include:

“(2) Sanctions by Court in Which Action Is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
“(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
“(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;
“(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
“(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
“(E) Where a party has failed to comply with an order under Rule 35(a) requiring that party to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that party is unable to produce such person for examination.
“In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.”

As we have noted, the trial court in a discovery-abuse case must impose a sanction proportionate to and compensatory of the particular discovery abuse committed. Outright dismissal of the action is appropriate where the refusal to allow discovery is willful. A lesser sanction is appropriate where the conduct is not willful or the party accused of not complying with discovery was acting in good faith.

This case involves not merely a refusal to allow discovery, but also the willful obstruction of Seaman’s efforts to depose Head until she was incompetent to testify in deposition; such action is akin to the spoliation of crucial evidence. Although the evidence here is different from that in the typical spoliation case, which involves the destruction of physical evidence (such as a wrecked car in a products-liability action), this is a serious case indeed. Ms. Head is dead. Her testimony can no longer be preserved for trial — it is gone forever.

We grant the petition for the writ of mandamus and direct the trial court to reconsider Seaman’s motion for dismissal or for sanctions for failure to allow discovery, and we direct the trial court to impose an adequate sanction, proportionate to the discovery abuse in this case.

PETITION GRANTED; WRIT ISSUED.

HOUSTON, SEE, BROWN, JOHNSTONE, and HARWOOD, JJ., concur.

LYONS, J., concurs specially.

MOORE, C.J., dissents.

WOODALL, J., recuses himself.

LYONS, Justice

(concurring specially).

I share the views expressed in the main opinion as to the inadequacy of the sanctions imposed by the trial court. On remand, the trial court has available to it a range of sanctions, including dismissal of the entire action (Rule 37(b)(2)(C), Ala. R. Civ. P.) or taking as true all of the evidence that Seaman expected to prove had it been able to depose the now deceased Ms. Head (Rule 37(b)(2)(A)).

On Applications for Rehearing

STUART, Justice.

On September 13, 2002, we issued an opinion granting the petition for the writ of mandamus filed by Seaman Timber Company, Inc., Jim Seaman, and Janet Seaman (hereinafter referred to collectively as “Seaman”). We directed the trial court to reconsider Seaman’s motion for dismissal or for sanctions against Melford 0. Cleveland and Belle Cleveland for failure to allow discovery.

In her application for rehearing, Belle Cleveland asserts that she and Melford 0. Cleveland separated in May 1999, shortly after they filed the underlying action against Seaman on April 14, 1999. Seaman filed its petition for a writ of mandamus on June 18, 2001. While this action was pending, the Clevelands divorced. The final judgment of divorce issued on November 28, 2001, states, “[Melford 0. Cleveland] is awarded all right, title and interest in and to the claim against Seaman Timber Company regarding the Shelby County farm property, and [Belle Cleveland] is hereby divested with any interest therein.”

Belle Cleveland maintains that because of the pendency of the divorce proceedings her contact with the attorneys in this action was minimal and that she complied with those discovery requests that were presented to her. In her application for rehearing, she requests that this Court remove her as a plaintiff. Seaman has expressed no objection to this request. Because this Court has before it only Seaman’s petition for a writ of mandamus, we are reluctant to remove a party. We, however, encourage the trial court, when it reconsiders Seaman’s motion for dismissal and the imposition of sanctions, to consider this new information regarding Belle Cleveland and her participation in the proceedings below.

APPLICATIONS OVERRULED.

MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, and HARWOOD, JJ., concur.

WOODALL, J., recuses himself.

      . The materials submitted with this petition indicate that Frank Head and Sarah Head were related, although the nature of that relationship is not indicated.

      . Seaman refers to this Rule 37, Ala. R. Civ. P., motion as its "second" Rule 37 motion. Apparently, it filed an earlier Rule 37 motion, although it does not refer to that earlier motion in its petition and supporting brief. In this opinion, we will refer to Seaman’s Rule 37 motions as it refers to them in its brief.

      . The materials submitted with this petition do not indicate the date of Ms. Head’s death.