text:
    Mary JOHNSON v. Paul GARY and Mitsuko Gary d/b/a B & N Steakhouse.
    82-844.
    Supreme Court of Alabama.
    Dec. 22, 1983.

      M. Ashley McKathan of Powell .& Powell, Andalusia, for appellant.
    Charles J. Kettler, Jr., Luverne, for ap-pellees.
   SHORES, Justice.

Plaintiff Mary Johnson sued her former employers, Paul and Mitsuko Gary, d/b/a B & N Steakhouse, alleging that she was wrongfully discharged from her job. It is undisputed that plaintiff’s job status was that of an employee at will. The trial court dismissed plaintiff’s action, ruling that her complaint failed to state a claim upon which relief could be granted. Although it was referred to as a judgment of dismissal, it was, as to the last two claims, more properly a summary judgment, since the trial court had before it, in addition to the pleadings, the uncontroverted statement by the Alabama Unemployment Agency as to why the plaintiff was not entitled to unemployment compensation. Johnson appeals. We affirm.

The complaint alleges that Johnson, a 58-year-old employee of defendants, injured her back and neck on October 10, 1982, when she fell at work. She sought and received workmen’s compensation benefits as provided under Ala.Code 1975, § 25-5-1, et seq. She was subsequently discharged from her employment at the restaurant.

In Count I of her complaint she alleges that she was discharged by the defendants in retaliation for having applied for workmen’s compensation benefits. Counts II and III of the complaint allege tortious interference by the defendants with Johnson’s efforts to receive unemployment compensation benefits following her discharge from the restaurant.

“The general rule is that an employment contract at will may be terminated by either party with or without cause or justification. 56 C.J.S. Master and Servant § 31; and 62 A.L.R.3d 271. This means a good reason, a wrong reason, or no reason.
“Alabama has followed the general rule which is that in a contract of employment ‘at will,’ the contract means what it says, that it is at the will of either party. The employee can quit at will; the employer can terminate at will. Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939). This is true whether the discharge by the employer was malicious or done for other improper reasons. Comerford v. International Harvester Co., 235 Ala. 376, 178 So. 894 (1938). This has been the Alabama law since the early years of this century. See Tennessee Coal, Iron and R. Co. v. Kelly, 163 Ala. 348, 50 So. 1008 (1909), where this Court held:
“ ‘... If one does an act which is legal in itself and violates no right of another, the fact that this rightful act is done from bad motives or with bad intent toward the person so injured thereby does not give the latter a right of action against the former.’ ”

Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130, 1131 (Ala.1977).

“In Howard v. East Tenn., Va. & Ga. Railroad Co., 91 Ala. 268 at 170, 8 So. 868 at 869 (1891), this court stated ‘unless some time is fixed during which the employment is to continue, either party may terminate the contract at will.’ The validity of this rule was reaffirmed, more recently, in Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.1977). Subsequently, the rule has been applied, and has withstood attack. Davis v. Marshall, 404 So.2d 642 (Ala.1981); Tripp v. Hall, 395 So.2d 33 (Ala.1981); Carver v. Metrobank, 386 So.2d 737 (Ala.1980); Bender Ship Repair, Inc. v. Stevens, 379 So.2d 594 (Ala.1980); Newby v. City of Andalusia, 376 So.2d 1374 (Ala.1979); Bierley v. American Cast Iron Pipe Company, 374 So.2d 1341 (Ala.1979); Martin v. Tapley, 360 So.2d 708 (Ala. 1978).”

Meredith v. C.E. Walther, Inc., 422 So.2d 761, 762 (Ala.1982).

This case presents nothing to justify adoption of an exception to the long-standing rule of this jurisdiction.

The Alabama legislature has provided the exclusive remedy for determinations regarding unemployment compensation. Section 25-4-96, Ala.Code 1975, provides:

“The procedure provided in this article for the making of determinations with respect to claims for unemployment compensation benefits and for appealing from such determinations shall be exclusive.”

Mrs. Johnson was initially denied unemployment compensation. She made use of the procedural and appellate remedies provided by the act and ultimately received benefits. She properly pursued the adequate remedy at law and won. Any possible hindrance to that process that her former employers may have raised was resolved within the remedy the law affords. Therefore, her allegations regarding tor-tious interference with her efforts to receive unemployment compensation are without merit.

The judgment of the trial court is hereby affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    COTTON STATES MUTUAL INSURANCE COMPANY v. John MICHALIC and John Holder.
    82-893.
    Supreme Court of Alabama.
    Dec. 22, 1983.
    William L. Lee, III, and William C. Carn, III, of Lee & Mclnish, Dothan, for appellant.
    Bryant F. Williams, Jr., Williams & Lanier, Ozark, for appellees.
   MADDOX, Justice.

This is an appeal by Cotton States Mutual Insurance Company from a declaratory judgment which determined that an automobile liability insurance policy provided coverage for an automobile involved in an accident and that a “non-owned automobile” exclusion in the insurance contract did not apply. We affirm.

On March 30, 1981, John Michalic was involved in an automobile accident in Ozark, Dale County, Alabama. It is undisputed that at the time of the accident Mr. Michalic was driving a 1976 Chevrolet Cá-maro automobile owned by Sabrina Richardson, who subsequently married Bruce Michalic and became Mr. John Michalic’s daughter-in-law. At the time of the accident, John Michalic had policies with plaintiff, Cotton States, covering four vehicles, but none of the policies covered the 1976 Chevrolet Camaro.

The policies of insurance issued to John Michalic with respect to the vehicles he did own extended coverage for the use of non-owned vehicles. The term non-owned vehicle is defined in the policies as follows:

“ ‘Non-owned automobile” means a private passenger, farm or utility automobile or trailer not owned by, registered in the name of, or furnished or available for the regular use of either the named insured or any relative.” (Emphasis added.)

The tendencies of the evidence which the trial judge could have believed were as follows:

Sabrina Richardson owned a 1976 Cama-ro, which was insured under her father’s policy. She and her boyfriend or fiance, Bruce Michalic (whom she later married on April 18, 1981), often drove each other’s car. Bruce Michalic had a pool construction business with his father, John Michalic, and, over the course of approximately nine months, often left Sabrina’s car at his father’s residence, driving one of the company’s vehicles (out of four other vehicles owned by the company or by John Michalic) to various construction sites. Frequently, other employees and workers would leave their cars at John Michalic’s house and then proceed to a job, and sometimes there would be two or three cars there besides Bruce’s automobiles. The keys to those other automobiles would usually be left at his house; and, sometimes John Michalic would have to move a car blocking his driveway or his mailbox. During the three months prior to March 30, 1981, Sabrina’s Chevrolet Camaro was parked at the John Michalic residence from two to four times a week, sometimes remaining overnight when Bruce took a company vehicle to his separate residence. During the six months prior to that period, Sabrina’s Camaro was parked at the John Michalic residence but on a less frequent basis.

Sabrina Richardson had told her future father-in-law, John Michalic, that he could use her automobile if he “needed it.”

John Michalic had driven Sabrina’s Chevrolet Camaro once or twice prior to March 30, 1981, and his wife had driven the car at least once. He and his wife did not have a separate set of keys to the Chevrolet Ca-maro; but, when the automobile was left at John Michalic’s house, the key ring was placed in the same location where the keys to the Michalic vehicles were located. On March 30,1981, while driving Sabrina Richardson’s Camaro, John Michalic was involved in a two-car collision which injured John Holder.

After hearing the testimony, the trial court found:

“The automobile in question was left at John Michalic’s house primarily for convenience. On the occasions that the automobile was parked at Mr. Michalic’s home, it was parked there so that he and Bruce could ride to work together and because there was no room at Bruce and Sabrina’s house. The car was not left at Mr. Michalic’s house so that it would be available for his regular use. Four other vehicles were owned by Mr. Michalic and were available for his regular use. The court finds that the automobile was not left at Mr. Michalic’s home so that it would be available for his regular use. The court further finds that by definition ‘the automobile’ was not available for his ‘regular’ use.”

The issue now before this Court is whether the trial court committed error in concluding as a matter of law that the Richardson vehicle was not “available for the regular use of either the named insured or any relative.”

The insured contends that whether the Chevrolet Camaro was “available for use” was a question of fact and that the findings of the trial court should not be disturbed.

The appellant/insurer argues that as a matter of law, the automobile was not covered because of the language contained in the exclusionary clause, specifically the language which reads “available for the regular use of either the named insured or any relative.” (Emphasis added.) The insurer would equate this phrase with “opportunity to use.” The insurer argued in its brief:

“Perhaps the most frequently cited statement regarding the purpose of non-owned vehicle coverage is that of Judge Chesnut in Aler v. Traveler’s Indemnity Co., 92 F.Supp. 620, 623 (D.C.Md.1950), cited by the Court in Winterwerp v. Allstate Insurance Co., 277 Md. 714, 357 A.2d 350, 353 (1976):
“ ‘... The general purpose and effect of this provision of the policy is to give coverage to the insured while engaged in the only infrequent or merely casual use of an automobile other than the one described in the policy, but not to cover him against personal liability with respect to his use of another automobile which he frequently uses or has the opportunity to do so.’ (Emphasis by the Court).
“These exclusionary clauses have been held by the majority of courts, including Alabama, to be clear and unambiguous, and hence are not due to be construed against the insurance company and in favor of the insured. Alabama Farm Bureau Mutual Casualty Insurance Company v. Preston, 287 Ala. 493, 253 So.2d 4 (1971); DiOrio v. New Jersey Manufacturer’s Insurance Company, 79 N.J. 257, 398 A.2d 1274 (1979); Winterwerp v. Allstate Insurance Company, supra; Continental National American Insurance Group v. Vaicunas, 26 Ill.App.3d 835, 325 N.E.2d 747 (1975). LaDoux [LeDoux] v. Iowa National Mutual Insurance Company, 262 N.W.2d 418 (Minn.1978). The legal meaning and construction of the exclusionary language and its applicability to the particular facts in a given case is a matter of law for the court. Allstate Insurance Company v. Government Employees Insurance Company, 263 A.2d 78 (Me.1970). It is the contention of the plaintiff, Cotton States, that the trial court erred as a matter of law in its construction and application of the non-ownership exclusion to the facts present in the instant case.”

The appellee/insured argues that the policy of this state in regard to such exclusionary clauses has been articulated by this Court in American Automobile Insurance Co. v. English, 266 Ala. 80, 94 So.2d 397 (1957), and Alabama Farm Bureau v. Preston, 287 Ala. 493, 253 So.2d 4 (1971), and that such a clause is not to be construed to mean “opportunity for use,” as is urged by the appellant:

“[The non-owned exclusion] simply means that [the insured] is not covered by the Farm Bureau policy here involved while operating other automobiles or trucks owned by him or furnished to him for regular use by someone else. We think it obvious that the [the exclusion] is designed to prevent an insured, who owns or regularly uses more than one vehicle, from securing one policy of insurance covering a specific vehicle and operating other vehicles under the coverage of that one policy.”

American Automobile Insurance Co. v. English, 266 Ala. 80, 86, 94 So.2d 397, 403 (1957).

The trial judge heard the case without a jury. Where the trial court has taken the testimony without a jury, “the findings of fact made and entered by the trial court will be sustained unless they are- clearly and palpably wrong or without supporting evidence or are manifestly unjust.” Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727, 747, 287 So.2d 847, 866 (1973); First Alabama Bank of Montgomery, N.A. v. Martin, 425 So.2d 415 (Ala.1982). We have reviewed the record and find ample evidence to support the trial court’s findings of fact.

The issue then comes to whether the trial court correctly applied the law to those facts in concluding that “the automobile was not available for his [the insured’s] regular use.”

' The insured argues that this issue, too, is a question of fact. There are a number of cases holding that whether or not an automobile has been “furnished for the regular use” of another creates a question of fact. Kenilworth Insurance Co. v. Cole, 587 S.W.2d 93 (Mo.Civ.App.1979); Johnson v. Home Indemnity Company, 401 S.W.2d 871 (Tex.Civ.App.1966); State Farm Mutual Automobile Insurance Company v. Bates, 107 Ga.App. 449, 130 S.E.2d 514 (1963); State Farm Mutual Automobile Insurance Co. v. Smith, 206 Va. 280, 142 S.E.2d 562 (1965); National-Ben Franklin Insurance Company of Pittsburgh v. Prather, 109 Ga.App. 459, 136 S.E.2d 499 (1964); Lincombe v. State Farm Mutual Automobile Insurance Co., 166 So.2d 920 (La.App.1964); Schilling v. Stockel, 26 Wis.2d 525, 133 N.W.2d 335 (1965).

Insurer, on the other hand, argues that the issue is one of construction, and so is a question of law. We agree. This does not answer the question to be resolved in this case, however. The law of this state regarding the construction of insurance policies is well settled and clear. “The contract of insurance will be construed strictly against the insurer and liberally in favor of the insured. [Citations omitted.] Ambiguous provisions of an insurance policy will be construed most strongly against the insurer and in favor of the insured.” Life Insurance Co. of Georgia v. Miller, 292 Ala. 525, 531, 296 So.2d 900, 906 (1974). Exceptions to coverage in a policy of insurance must be interpreted as narrowly as possible in order to provide maximum coverage of the insured. Employee’s Insurance Co. of Alabama, Inc. v. Jeff Gin Co., 378 So.2d 693 (Ala.1979); Westchester Fire Insurance Co. v. Barnett Millworks, Inc., 364 So.2d 1137 (Ala.1978); Life Insurance Co. of Georgia v. Miller, 292 Ala. 525, 296 So.2d 900, on remand 50 Ala.App. 741, 296 So.2d 907 (1974); see Booker T. Washington Burial Ins. Co. v. Williams, 27 Ala.App. 393, 173 So. 269 (1937). Finally, the provisions in an automobile liability policy are to be construed liberally in favor of the insured. United States Fidelity & Guaranty Co. v. Baker, 24 Ala.App. 274, 134 So. 894, cert. denied, 223 Ala. 172, 134 So. 896, (1931). The trial court, apparently following these rules of construction, found for the insured. This construction of the contract clause does not violate the purpose of exclusionary clauses in automobile liability policies. American Automobile Insurance Co. v. English, supra. In Alabama Farm Bureau Mut. Cas. Ins. Co. v. Preston, 287 Ala. 493, 253 So.2d 4 (1971), Maddox, J., concurring specially, stated:

“The so-called 'non-owned automobile’ clauses are of comparatively recent origin and provide regular insurance coverage to the insured and any relative residing in his household in the infrequent use or casual driving of automobiles other than his own. Usually, such ‘non-owned automobile’ clauses contain language which exclude from such extended coverage any automobile (1) owned by the insured or a member of his household, (2) hired by the insured or a member of his household or (3) provided for the regular use of the insured or a member of his household. The general purpose of the exclusion clause is to prevent a situation in which members of one family or household may have two or more automobiles which are used interchangeably but with only one particular automobile insured. Couch on Insurance, 2d § 45,-238. The construction of ‘non-owned automobile’ clauses is governed by the rules used generally in the interpretation and application of contracts of insurance.”

Alabama Farm Bureau Mut. Cas. Ins. Co. v. Preston, supra, 287 Ala. at 497, 253 So.2d at 7.

We are aided by two state court decisions which have construed the terms “regular” and “available for regular use.” The term “regular” has been construed to mean “something of a steady or uniform course, practice or occurrence as opposed to occasional or incidental.” Kenilworth Insurance Co. v. Cole, 587 S.W.2d 93, 99 (Mo. App.1979). The term “available for regular use” has been construed to mean that “[t]hat thing to which it refers can be usually and regularly had or be used whenever it is wanted, needed or desired.” Kentucky Farm Bureau Mutual Insurance Co. v. Cook, 590 S.W.2d 885, 890 (Ky.App.1978).

Taking the facts as found by the trial court, the rules of construction that must be applied in such cases, and the construction given such clauses by other courts, we hold that the trial court’s order is due to be affirmed.

AFFIRMED.

TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.


author: BEATTY, Justice.

text:
    THRIFTY PETROLEUM, a Corporation v. CITY OF WETUMPKA, et al.
    82-946.
    Supreme Court of Alabama.
    Dec. 22, 1983.
    John R. Formby, Jr., Wetumpka, for appellant.
    Robert S. Milner, Wetumpka, for appel-lees.
   BEATTY, Justice.

Affirmed on the authority of Harrelson v. Glisson, 424 So.2d 591 (Ala.1982); Doyson v. City of Oxford, 340 So.2d 777 (Ala.1976).

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.


text:
    Johnny W. HOLLAND v. Jean Aliena HOFFMAN and Charles W. Hoffman.
    82-1040.
    Supreme Court of Alabama.
    Dec. 22, 1983.

      Bryce U. Graham, Tuscumbia, for appellant.
    William R. Hovater, Tuscumbia, for ap-pellees.
   BEATTY, Justice.

The defendant, Johnny W. Holland, appeals from a judgment in favor of plaintiffs, Jean Aliena Hoffman and Charles W. Hoffman, declaring a certain deed null and void. We affirm.

This case involves the transfer of real property among family members. Defendant Holland and co-plaintiff Jean Hoffman are brother and sister. Plaintiffs, the Hoffmans, executed a deed on April 28, 1981, transferring 53 acres of land to the defendant, and the circumstances surrounding this transfer resulted in a complaint seeking an annulment of the deed. The complaint alleged fraud which induced the signing of the deed and lack of consideration for the deed. In its written judgment, the trial court held in pertinent part:

“[HJaving considered all of the evidence and testimony presented in open court with respect to the plaintiffs’ claim against the defendant, and the court finding from all of said evidence that the defendant fraudulently induced the plaintiffs into executing that certain deed ... by falsely representing to the plaintiffs that he would pay the plaintiffs the sum of Ten Thousand and no ($10,000.00) Dollars for said property, and by falsely representing to the plaintiffs that in the event he failed to pay said consideration that they were authorized to reconvey said property to themselves by virtue of a power of attorney heretofore executed by the defendant to the plaintiff, Jean Aliena Hoffman, recorded in book 301, page 148 of the office of the probate judge of Colbert County, Alabama, dated April 22, 1968, and the court further finding from the evidence that the plaintiffs in reliance upon said statements made by the defendant executed the said deed ... and the court further finding from the evidence that the defendant has entirely failed to pay any consideration for said property, and that he further shortly after having obtained said deed from the plaintiffs revoked the power of attorney....
“It is therefore ORDERED, ADJUDGED and DECREED by the court that said deed, executed by the plaintiffs to the defendant, dated the 28th day of April, 1981, and recorded in deed book 392 at page 823-824 in the office of the probate judge of Colbert County, Alabama, be and hereby is declared null and void for all purposes.
“Done and ORDERED at Tuscumbia, Alabama, this the 7th day of January, 1983.”

The issue on appeal is whether the record contains evidence which justified the annulment of the deed by the trial court. We find that there was such evidence.

Alabama has long recognized that a deed obtained by fraud will be set aside. Johnson v. Cook, 73 Ala. 537 (1883); Prowell v. Wilson, 219 Ala. 645, 123 So. 38 (1929); Strickland v. Malone, 260 Ala. 62, 68 So.2d 48 (1953). The evidence in this case was disputed; however, a review of the record supports the finding that there were material representations and promises by the defendant, which he knew to be incorrect and which he had no intention of performing. These representations and promises constituted fraud, and the plaintiffs relied upon them to their detriment, thus justifying the cancellation of the deed. Cross v. Maxwell, 263 Ala. 509, 83 So.2d 211 (1955).

The evidence produced at trial showed that the defendant, Holland, was in prison from 1966 through 1980. In 1968, Holland executed a power of attorney giving his sister, Jean Hoffman, the power to act on his behalf in all lawful matters, including the right to handle transactions of property. Jean Hoffman testified that she had originally obtained approximately 67 acres from the defendant, of which 53 acres is the subject of this case. The defendant’s primary argument below was that there was no consideration for the transfer of the 67 acres and that he had transferred this property to his sister to hold for him until his release from the penitentiary, at which time it would be returned to him. There was testimony by the plaintiffs, a letter from the defendant to his sister, written in 1972, and a sworn affidavit of the defendant taken while he was in prison, however, which supported the conclusion that he deeded the land to Jean Hoffman in exchange for a valuable consideration.

Evidence concerning the land transaction in question included a letter to Jean Hoffman dated March 5, 1980, prior to the defendant’s release from prison. Holland wrote: “Said like I said before I might need to bumb you out of a few acres and then turn right around and mortgage you and Ted [another brother] or both of you all of the property in order to get started in which I figure will be a profitable business.” Following the defendant’s release, he stayed with the plaintiffs in their home until about a week after the transfer of the property to him. There were other conversations with the plaintiff about the defendant’s plans to build a shop and start a business. The defendant’s brother, Ted Holland, also testified that the defendant borrowed $12,000.00 from him for the purpose of building a shop on the land that is the subject of this case.

With regard to the transfer of the deed to her brother, and the consideration agreed upon, Jean Hoffman testified as follows:

“A. He [Holland] told me that I didn’t need a mortgage, I asked him about going to a lawyer and having a contract or a mortgage or something to that effect to protect myself and he says well you don’t need it, said you got the Power of Attorney and I said but what if you were to get married Johnny and he said I don’t intend to get married, not for a long time and he said that with the Power of Attorney, he says if I don’t pay you or anything were to happen to me, he said you could take the land back with my shop sitting on it.
“MR. HOVATER CONTINUES: Now Jean at that time Mr. Hunt has stated in his opening statement that under a Power of Attorney you could act for Johnny but not on your behalf, at that time had you had any legal training or had you been to law school or anything that you would know what you could do or what you couldn’t do under a power of attorney?
“A. No.
“MR. HOVATER CONTINUES: Jean what was the agreed upon sales price between you and Johnny on the land?
“A. Ten thousand dollars.
“Q. Now Jean after the date of the deed did it come to your attention that Johnny was attempting to sell the land?
“A. Yes.
“Q. After it came to your attention that he was trying to sell the land what did you next do?
“A. I went to the courthouse to see about the Power of Attorney and I found out that he had withdrawn my power of attorney.
“Q. At this time I would like to show you Plaintiff’s Exhibit Number 4 and ask if you recognize what this is?
“A. Yes, this is when he withdrawed.
“Q. Is this what you found recorded at the courthouse when you checked on that?
“A. Yes, sir.
“MR. HOVATER CONTINUES: Jean after you found out that the Power of Attorney had been released is that when you came to me?
“A. Yes, the same day.
“MR. HOVATER CONTINUES: Have you been paid any amounts on this land since the execution of this deed?
“A. No sir.
“MR. HOVATER CONTINUES: Now Jean when you executed a deed to Johnny on the land that is the subject of the complaint was this in reliance upon his representations to you about the mortgage, I mean about not taking the mortgage and about the Power of Attorney?
“A. Would you ask the question again?
“Q. When you signed the deed to Johnny on the land that is the subject of the complaint, did you base and rely upon his representations at that time—
“MR. HUNT: We object to that on grounds it calls for an uncommunicated operation of her mind.
“BY THE COURT: Overruled.
“MR. HOVATER CONTINUES: Did you rely upon Johnny’s representation about the Power of Attorney and not taking a mortgage at that time Jean?
“A. Yes, I believed him.
“Q. And is that what caused you to sign the deed, your belief in Johnny?
“A. Yes.
“MR. HOVATER CONTINUES: Jean was there any definite date set for the payment on the mortgage — not on the mortgage but on the payment for the land?
“A. No.
“Q. What was the conversation as to when it would be paid?
“MR. HUNT: Now we object to it on the grounds that it violates the parol evidence rule.
“BY THE COURT: Overruled.
“MR. HOVATER: You can answer Jean.
“A. He told me that he would have to work probably a couple of years while his shop was being built and get his business going, but probably a couple of years but he said I will be paying you all along and it is possible that I can have you paid by then.
“Q. So the conversation in effect said he would start paying you immediately but pay you some along, is that right?
■ “A. Yes, said he would pay me all along.
“Q. It is your testimony that he hadn’t paid anything?
“A. No, sir.
“MR. HOVATER: All right, that is all.”

Charles Hoffman testified that he was present during the conversations between his wife and Holland when they discussed the consideration, the power of attorney, and the mortgage, and that it was in reliance upon the representations by Holland that he and his wife executed the deed on April 28, 1981.

Evidence was also before the trial court that the defendant had asked a prospective buyer of the property not to tell his sister of their business transaction. The prospective buyer did in fact contact Jean Hoffman, and his doing so prompted the actions resulting in this suit. In addition, there was ample evidence before the court which established the confidential relationship between this brother and his sister. Jean and Charles Hoffman had helped Holland while he was in prison, and had opened their home to him when he was released. They were interested in helping him get started in a new business. For all these reasons, the court could have found that they believed him and were misled by him when he promised to build a business on the property and pay them for the deed to it.

Fraud accompanied with damage to the defrauded party gives a right of action. Code of 1975, § 6-5-100. Willful representations of a material fact made to induce another to act, and upon which he does act to his injury, will give a right of action, Code of 1975, § 6-5-103. This Court in both Doswell v. Hughen, 266 Ala. 87, 94 So.2d 377 (1957), and Jones v. Boothe, 270 Ala. 420, 119 So.2d 203 (1960), found sufficient evidence to set aside deeds. These cases involved transactions between family members and a confidence in the defrauding party.

Clearly, there was evidence from which the trial court could find fraud. There was evidence that the plaintiffs relied on the representations and promises made by the defendant and other evidence supported the finding of no consideration. Findings based on evidence heard orally by the trial court will not be disturbed unless plainly erroneous or manifestly unjust. Snow v. Boykin, 432 So.2d 1210 (Ala.1983); Lamar v. Lamar, 263 Ala. 391, 82 So.2d 558 (1955); Haden v. Boykin, 259 Ala. 504, 66 So.2d 708 (1953). No such error exists here.

Let the judgment be affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.


text:
    Mildred MILLS, etc., et al. v. William V. NEVILLE, Jr., etc.
    82-1061.
    Supreme Court of Alabama.
    Dec. 22, 1983.

      Sidney G. Landreau of Faulk & Lan-dreau, Phenix City, for appellants.
    Sam A. LeMaistre, Eufaula, for appel-lees.
   BEATTY, Justice.

This is an appeal from the denial of a petition which sought to remove an executor, or in the alternative, to revoke letters testamentary, and to appoint an administrator cum testamento annexo. We affirm.

The respondent, William Y. Neville, Jr., is a practicing lawyer in Eufaula. In 1974, he drafted a will for Cheryl Ann Marshall, then the wife of Grady A. Marshall, Sr. In that will the testatrix named her husband Grady as executor, and named the respondent as alternate executor.

In 1980, Cheryl and Grady Marshall obtained a divorce, an “answer and waiver” divorce. The respondent represented the husband in those proceedings. Subsequently, Cheryl filed a petition to modify the divorce decree’s provisions with regard to custody of one of the two children, the daughter Robin. In that subsequent proceeding, the respondent again represented Cheryl’s ex-husband, and Cheryl was represented by Russell Irby, another lawyer practicing in Eufaula. At that same time the respondent was also representing Cheryl’s mother, Mildred Mills, in a Social Security appeal. Ultimately, the custody contest was settled by agreement of the parties.

On May 22, 1982, Cheryl Ann Marshall was killed in an automobile accident in which a tractor-trailer struck a vehicle occupied by one Mark Frank, and then continued on to strike Cheryl’s automobile. Following her death, the respondent qualified as executor of Cheryl Ann Marshall’s estate on June 25, 1982, and probated her will. At or near this time, Mildred Mills was appointed guardian of Robin, the Mar-shalls’ daughter, while Grady A. Marshall, Sr., was appointed guardian of his son, Grady, Jr. After having been appointed executor of Cheryl’s estate, the respondent employed Russell Irby to assist him in prosecuting a wrongful death action on account of Cheryl’s death. Their agreement was one to share the workload and to petition the court to provide a fee of one-third (of any recovery) from the wrongful death claim, which fee would be shared equally. Irby did not wish to participate in the executorship but only in the death claim.

After this agreement between respondent and Irby was made, Mildred Mills, guardian of Robin, requested of respondent that he remove himself as executor and as attorney in any wrongful death action. Mills had retained Bob Faulk as attorney to seek a recovery for Cheryl’s death. The respondent refused to remove himself, so Mrs. Mills, in her capacity as guardian of Robin, and Robin herself, filed a petition to have Neville removed as executor and to have Mrs. Mills appointed as administrator with the will annexed, alleging that his conduct had shown that he was not a suitable person to have charge and control of the estate.

After a hearing, the trial court denied the petition, and the petitioners appealed.

The petitioners contend that Neville’s conduct places him within the terms of Code of 1975, § 43-2-290, because he has violated several Rules of Disciplinary Enforcement, thus disclosing his unsuitability as executor.

First, petitioners contend that Neville has violated DR 5-101(A), Code of Professional Responsibility of the Alabama State Bar, which provides:

“Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property or personal interest.”

Second, it is contended that he has violated DR 2-108(A):

“A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or law office, unless:
“(1) the client consents to employment of the other lawyer after a full disclosure that a division of fees will be made.”

And, third, petitioners contend that Ne-ville has violated DR 5-101(B), which states:

“A lawyer should not accept employment in contemplated or pending litigation if he knows or it is obvious that he ... ought to be called as a witness_”

On the first issue, the petitioners’ argument is that the respondent has a personal financial interest in the outcome of the wrongful death litigation, which is “the plum of the estate,” because without some recovery from that litigation the estate is insolvent. According to the petitioners, Neville would not only receive executor’s fees out of the estate but would also split a one-third contingency fee, and thus they contend that his interest as executor, to realize the maximum sum possible for the minor beneficiaries, and his personal interest in obtaining the highest possible attorney’s fee for himself, raise a conflict which should have been disclosed to his clients, the beneficiaries of Cheryl Ann Marshall, who are the real parties in interest.

Without reaching the question of whether or not the ultimate beneficiaries, the minor children, are Neville’s “clients” to whom he should have made any disclosure, this Court does not perceive a conflict of interest under these facts. Indeed, the fact that the executor-attorney “employs himself” has not been viewed as raising a conflict of interest. As early as 1846, in the case of Harris v. Martin, 9 Ala. 895, this Court, after discussing the practices in the English and American courts, stated that it could

“perceive no reason why one who is not a mere voluntary trustee, appointed by will or deed, and is also an attorney, shall not be allowed a reasonable compensation for his services in the latter capacity, when such has been necessarily and bona fide rendered for the benefit, or called into use by the necessities of the estate_” 9 Ala. at 900.

And, later, in Clark v. Knox, 70 Ala. 607 (1881), this Court recognized:

“When the executor ... is an attorney or solicitor, and in either capacity renders professional services, necessary in litigation for the benefit, or demanded by the necessities of the estate, he is entitled to compensation for such services....” 70 Ala. at 617.

Even where legatees have themselves been represented by counsel, an executor also acting as attorney for the estate, and thus incidentally acting for the beneficiaries, nevertheless has been allowed to recover for his own services as an attorney, Alexander v. Bates, 127 Ala. 328, 28 So. 415 (1900); and the payment by an administrator-attorney of commissions to his law partner has been approved, this Court observing in Bendall’s Distributees v. Bendall’s Adm’r, 24 Ala. 295 (1854), at 305:

“We have already decided ... that allowances of this character may well be made to the administrator himself, if he be an attorney, and as such renders necessary legal services to the estate.... It would seem to follow from this, that there would be no impropriety whatever in the employment of the law partner of the administrator to render legal services for the estate, and in paying him a just and reasonable compensation for such services when rendered.” (Citation omitted.)

That statement focuses on the crux of the matter, i.e., no conflict of interest arises from the mere fact that the executor-lawyer himself provides legal services to the estate, and thus no reason exists for him to disclose anything to his clients, there being nothing to disclose. It follows that if the executor-lawyer can employ his own law partner, a fortiori, he can employ independent, unassociated counsel. Accordingly, this Court finds no breach of DR 5-101(A).

These cases, it appears, go far in resolving the second contention of the petitioners. However much the beneficiaries are interested parties in the outcome of the administration of the estate, and therefore in the ensuing litigation, it is the estate which is the client here, and it is the court which supervises and approves the allowances to the attorney for the estate. Code of 1975, §§ 43-2-682, -683; Annot., 18 A.L.R. 635. See also, John v. Sharpe, 148 Ala. 665, 41 So. 635 (1906) (lawyer-administrator employing associate lawyer entitled to reasonable value of services). Additionally, the evidence at the hearing below reveals that Neville had made it clear to Irby that any fee from the wrongful death case would have to be approved by the court, and that the court should appoint a guardian ad litem in determining such a fee. For these reasons, we are convinced that the respondent’s failure to consult with the minor beneficiaries here, if he did fail to do so, did not result in a violation of DR 2-108(A).

The petitioners also make much of the fact that Neville also represents the occupants of the other automobile which was struck by the same tractor-trailer that collided with the testatrix’s automobile. Ne-ville acknowledged this representation, but denied any conflict of interest. Moreover, at the hearing below, Neville insisted that those other people had information which would be beneficial to the estate’s case, and that he would recuse himself if any conflict should later arise. In addition, Neville offered to have the trial court set his fees not only as executor but also as attorney in this particular death claim as well.

Insofar as any consultation with the minors or their guardians might have been appropriate under DR 5-101(A), there is no evidence in the record that any such consultation had not been held, or any other evidence that Neville had acted in a manner which would have justified the drastic remedy of removal as executor under the statute. Cf. Castleberry v. Hollingsworth, 215 Ala. 445, 111 So. 35 (1927).

Finally, it is not clear under these facts that Neville, an executor, would be or even ought to be called as a witness in the wrongful death case, and thus it would not be improper for him to represent the estate in that litigation. We have been cited to no authority requiring such testimony. This Court does take note of DR 5-101(B)(l) and (2), which do not prohibit representation if proposed testimony would relate solely to an uncontested matter or merely to a matter of formality, and when there is no reason to believe that such testimony will be opposed by substantial evidence. In this case, Neville, the executor, was not a witness to the accident and, for aught that appears in the record, can furnish no evidence concerning it.

This Court is not unmindful of the commendable zeal shown by the petitioners for the exercise of the proprieties on the part of lawyers who act as executors. We hold, however, that no improprieties of the kind alleged have been shown by the record before us. The court below found no conflict of interest nor any facts implying the unsuitability of the respondent to act in charge and control of the estate. That position, and the order pursuant thereto, must be affirmed. It is so ordered.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.

      . Code of 1975, § 43-2-290, provides: “[A]n ... executor may be removed and his letters revoked ... when from his conduct or character there is reason to believe that he is not a suitable person to have the charge and control of the estate.”


text:
    Ex parte ALLSTATE INSURANCE COMPANY. (In re Kenneth SALTER v. ALLSTATE INSURANCE CO.).
    83-29.
    Supreme Court of Alabama.
    Dec. 22, 1983.
    Oliver J. Latour, Jr., of Reams, Wood, Vollmer, Philips, Killion & Brooks, Mobile, for petitioner.
    William H. Saliba, Mobile, for respondent.
   MADDOX, Justice.

The issue presented here is whether a plaintiff who files a claim in district court to recover $5,000 in damages, and who recovers only $25 in damages in the district court, can appeal to circuit court and claim damages in excess of $5,000, the jurisdictional limit of the district court. We answer the question in the negative, and grant a writ of mandamus directing the circuit court to limit the plaintiffs claim to $5,000.

Petitioner Allstate Insurance Company, the defendant in the district court action, alleges in its petition for mandamus in this Court the following:

“On November 9, 1982, plaintiff filed suit in the District Court of Mobile County seeking $5,000, the jurisdictional limit of said court, for alleged bad faith refusal of defendant to fully reimburse plaintiff for alleged collision damage done to plaintiffs automobile. After a motion to dismiss was denied and an answer filed to the complaint by defendant, the matter proceeded to trial on February 4, 1983. The district judge, after hearing testimony, entered a $25 judgment for plaintiff. On that same day plaintiff filed notice of appeal to the circuit court.
“On March 3, 1983, plaintiff amended his complaint by adding two additional counts each claiming $1,000,000 as damages.
“On March 23, 1983, defendant served its alternative motion to strike and motion to dismiss.
“Defendant’s motion to strike points out that plaintiff appealed this case to the circuit court from a judgment obtained in the district court and thereby obtains a trial de novo in the circuit court; that Rule 13(j) of the Alabama Rules of Civil Procedure limits the amount of recovery to the jurisdictional amount that could have been claimed and recovered in the lower court unless the defendant asserts a counterclaim in excess of the jurisdictional amount of the lower court; that the jurisdictional amount that could have been claimed and recovered in the district court was $5,000; and that defendant had not asserted a counterclaim. Defendant moved the court to strike all claims in excess of the $5,000 jurisdictional limit of the district court on the theory that Rule 13(j) meant what it said and further that the jurisdictional amount of the circuit court had been limited by rule 13(j).”

Rule 13(j) of the Alabama Rules of Civil Procedure specifically provides in pertinent part.

“... If the plaintiff appeals a case to the circuit court from a lower court and obtains a trial de novo in the circuit court, the plaintiff shall be limited in the amount of his recovery to the jurisdictional amount that could have been claimed and recovered in the lower court, unless the defendant asserts a counterclaim in excess of the jurisdictional amount of the lower court.”

There was no counterclaim filed in this case, and plaintiff was the party who appealed. The language of Rule 13(j), Ala.R. Civ.P., is plain. The logic for limiting the plaintiffs damages in circuit court is spelled out in the committee comments, which read as follows:

“Rule 13(j) has no federal counterpart. The first sentence is based on Vermont Rule 13(j). The intent of the remaining portion of Rule 130) is evident from a reading of same. If counterclaims in appealed actions are going to be compulsory, it certainly should follow that the defendant should be permitted to recover his full damage even though it exceeded the jurisdiction of the lower court. The last sentence of Rule 13(j) provides that when a defendant appeals a case from a lower court to the circuit court and obtains a trial de novo, the plaintiff then could recover an amount in excess of the jurisdiction of the lower court. In many cases, in order to bring the case in one of the lower courts, a plaintiff will waive a portion of his claim for a quick and inexpensive trial. The defendant then appeals the case to the circuit court often for the purpose of delaying the collection of the judgment well knowing that there is a lid on the amount of the plaintiffs recovery. In such cases, the plaintiff will be entitled to claim and recover the full amount of his damages in the circuit court. Such a rule, no doubt, would prevent many cases from being appealed to the circuit court either for the purpose of delay only or for the purpose of securing a second trial knowing that he has all to gain and nothing to lose by so doing. The same logic would not apply if the plaintiff appealed and the ... rule provides that should he appeal he would be limited to the jurisdiction of the lower court, except when defendant asserts a counterclaim in excess of the jurisdic- tional amount of the lower court.” (Emphasis added.)

In Harper v. Regency Development Co., Inc., 399 So.2d 248, 254 (Ala. 1981), this Court opined:

“The trial court’s rejection of claimants’ offered amendments to increase their prayer for damages above the jurisdictional level of the district court is mandated by ARCP 13(j). Plaintiffs had the right to claim only a portion of their damages in order to remain within the jurisdiction of the district court; but, by doing so, they destroyed their right, on appeal to the circuit court, to claim the excess. See Hardy v. Tabor, 369 So.2d 559 (Ala.Civ.App.1979).”

For the foregoing reasons, we must grant the petition for a writ of mandamus to the circuit court.

WRIT GRANTED.

TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.


author: PER CURIAM.

text:
    Charles P. BLACK and Beatrice M. Black v. Mrs. Lessie JOHNSON, etc.
    83-117.
    Supreme Court of Alabama.
    Dec. 22, 1983.
    Alice L. Anderson, Enterprise, for appellants.
    H.E. Lane, Enterprise, for appellee.
   PER CURIAM.

Plaintiffs below appeal, challenging the trial court’s order of dismissal of the cause without a hearing. Plaintiffs’ claim is in two counts: Count One seeks damages for “continuous trespass on [a] tract of land belonging to Plaintiffs”; and Count Two seeks to recover possession of the subject property, as well as damages for its alleged unlawful detention.

Defendant’s motion to dismiss contains two grounds: “1. My name is Lessie Fleming and not Lessie Johnson. 2. I do not own any property near or adjacent to the property described in said complaint.”

No citation of authority or lengthy discussion is necessary to support our holding that neither of these two stated grounds constitutes a legal basis for dismissal of Plaintiffs’ action.

REVERSED AND REMANDED.

TORBERT, C.J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.


author: ADAMS, Justice.

text:
    Verna BREWER v. Nancy LOPER, Administratrix of the Estate of James Quinnie Loper, deceased.
    82-809.
    The Supreme Court of Alabama.
    Dec. 22, 1983.
    Samuel F. Irby, Jr., Mobile, for appellant.
    Edward P. Turner, Jr. of Turner, Onder-donk & Kimbrough, Chatom, for appellee.
   ADAMS, Justice.

This case involves the propriety of the dismissal of appellant’s claim set forth in a pleading styled “Petition of Verna M. Brewer to Contest the Estate of James Quinnie Loper, deceased,” by the Circuit Court of Washington County. The administration of the estate of James Quinnie Loper was first submitted to the Probate Court of Washington County on February 8, 1975, and letters of administration were issued on February 15, 1975. On September 20, 1976, the administration of the estate of James Quinnie Loper was removed from the Probate Court of Washington County to the Circuit Court of Washington County, pursuant to Code 1975, § 12-11-41. After the administration of the estate was completed, a hearing on final settlement was set for August 23, 1977, in the Circuit Court. On that day, the appellant, Verna M. Brewer filed a letter purporting to contest all that had been done in the estate of James Q. Loper, deceased, and claimed that the estate owed her $17,600.00 because the deceased owed her back rent for a period of fourteen and one-half years. This contest was made, presumably, pursuant to Code 1975, § 43-2-511. The Circuit Court of Washington County, on August 23, 1977, approved the final settlement in this estate and did not include or allude to Brewer’s letter of contest.

Brewer did not appeal from the decree of the Circuit Court, nor did she file a motion to set aside, alter or amend the judgment, nor did she file a motion for new trial. She did, however, three years, eleven months and three days later, file the above styled petition to contest the final settlement of the estate. The judgment of the trial court, dismissing the petition is affirmed.

Brewer mistakenly thought that her letter, filed on the day for hearing on the final settlement, which she said that she could not attend because her husband was sick, somehow stayed the court’s ability to proceed to final resolution of the matters before it. It was because of this misconception, we presume, that she filed her last pleading, this time through an attorney, hoping to get the court’s attention. But the court had already acted. It was incumbent upon her, either individually or through her attorney, to file either an appeal within 42 days, or a motion to set aside, alter or amend the judgment, or a motion for new trial within the time required by law.

The only possible avenue now open to Brewer under the facts of this case is a motion invoking Rule 60(b), A.R.Civ.P. In order, to further the ends of justice, we will label Brewer’s last petition as such a motion.

Rule 60(b), A.R.Civ.P., has six subsections. Sections 1 through 4 are not available to appellant because they require action to be taken within four months. Section 5 is totally inapplicable to the facts in this case. Section 6, under appropriate circumstances, will allow relief from the operation of a judgment if the motion is filed within a “reasonable” time. Here again, we are bereft of facts going to show why it took so long for Brewer to file her last pleading. Her petition, premised on the mistaken thought that the Circuit Court was a viable vehicle to continue her attack on the final settlement, gives us no inkling of why it took her so long to file. While this court is liberal in its attitude toward relief from oppressive judgments, here the appellant did not require the services of a court reporter and we have no knowledge of what good reason, if any, the petitioner advanced to support her claim that the judgment should be set aside. As fair as we may like to be, we do not set aside judgments lightly; we must be convinced that there has been a miscarriage of justice. Howell v. D.H. Holmes, LTD., 420 So.2d 26, 28 (Ala.1982); Self v. Maynor, 421 So.2d 1279, 1281 (Ala.Civ.App.1982). See Ex parte Shuttleworth, 410 So.2d 896 (Ala.1981).

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: ADKINS, Justice.

text:
    Leonard J. MERCER, Jr., etc., Petitioner, v. J.D. RAINE, Sr., et al., Respondents.
    No. 61963.
    Supreme Court of Florida.
    July 28, 1983.
    Rehearing Denied Feb. 9, 1984.
    Joel L. Kirschbaum of Esler & Kirschb-aum, Fort Lauderdale, for petitioner.
    Douglas K. Silvis and Robert A. Ware, of English, McCaughan & O’Bryan, Fort Lauderale, for respondents.
   ADKINS, Justice.

This cause is before us on petition to review the decision of the District Court of Appeal, Fourth District, in Mercer v. Raine, 410 So.2d 931 (Fla. 4th DCA 1981). The decision conflicts with Santuoso v. McGrath & Associates, Inc., 385 So.2d 112 (Fla. 3d DCA 1980). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioner, defendant below, seeks review of the district court’s decision which affirmed the trial court’s order granting sanctions against the defendant for violations of discovery rules. We also affirm.

The plaintiffs below filed their complaint against the defendant on September 14, 1979, seeking both compensatory and punitive damages resulting from an alleged breach of contract for the sale of a hotel. Plaintiffs initiated discovery by including a request for admissions and a request to produce in their service upon the defendant along with the complaint. On September 24, 1979, plaintiffs sent their first set of interrogatories to the defendant. Defendant responded to their discovery by: 1) filing a motion to dismiss on September 26, 1979; 2) filing a motion for extension of time to respond to plaintiffs’ requests to produce and for admissions on September 27, 1979; and 3) filing an objection to the interrogatories on October 2, 1979, on the ground that the defendant should not have to respond until after a hearing on the motion to dismiss.

On November 27, 1979, the trial court entered an order denying the defendant’s motion to dismiss and requiring the defendant to respond to all pending discovery within twenty days. A few days later the defendant filed his answer. He failed, however, to comply with the order as to discovery, to request an extension of time, or to communicate with the court concerning any mitigating circumstances within the twenty days granted by the court.

On December 26, 1979, plaintiffs filed a motion to strike affirmative defenses and followed that with a motion for sanctions on January 14, 1980. On January 11, the defendant’s counsel filed a motion to withdraw, citing as grounds, in addition to nonpayment, other conduct by his client rendering representation unreasonably difficult, including the defendant’s failure to assist counsel in responding to discovery. Plaintiff’s pending motions and the motion to withdraw were all heard on February 7, 1979. The court granted the defendant’s lawyer leave to withdraw from the case and also granted the plaintiffs’ motion for sanctions. The trial court, in granting plaintiffs’ motion, struck the defendant’s answer, entered a default judgment against the defendant, and ordered the defendant to pay the plaintiff’s costs and fees occasioned by his refusal to comply with the court’s order.

There is no question that the defendant failed to timely comply with the requirements of the trial court’s order. The defendant does not contend that the trial court was without authority to enter some sanction against him for his failure to timely comply with plaintiff’s discovery requests and the court’s order. However, the defendant contends that the court abused its discretion in entering the particular sanctions it did without affording the defendant an opportunity to cure the violation by compliance and in the absence of a finding by the court that the noncompliance was willful or that plaintiffs suffered any undue prejudice due to the defendant’s noncompliance.

We cannot agree with defendant’s contentions. The brief per curiam opinion of the district court affirmed the trial court based upon a rule of law announced by this Court in 1972 in Farish v. Lum’s, Inc., 267 So.2d 325 (Fla.1972). In Farish, the trial court had granted the plaintiff’s motion for summary judgment on the ground that the defendant’s answers to a request for admissions were not properly filed. On appeal the district court reversed and remanded the cause to permit the filing of properly executed answers. We reversed the district court of appeal on writ of cer-tiorari. In Farish, this Court stated:

The exercise of discretion by a trial judge who sees the parties first-hand and is more fully informed of the situation, is essential to the just and proper application of procedural rules. In the absence of facts showing an abuse of that discretion, the trial court’s decision excusing, or refusing to excuse, noncompliance with rules ... must be affirmed_ It is the duty of the trial court, and not the appellate courts, to make that determination.

Id. at 327-28. This same rule of law has been stated and followed by the United States Supreme Court. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976). Thus, to justify reversal, it would have to be shown on appeal that the trial court clearly erred in its interpretation of the facts and the use of its judgment and not merely that the court, or another fact-finder, might have made a different factual determination.

This Court has spoken of the scope of this discretionary power granted to the trial court. In Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), we stated:

In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

Id. at 1203. This test should apply to the discretionary power of the trial court to grant sanctions. As we noted in Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980), which dealt with discretionary power to grant or deny a new trial, the trial judge is granted this discretionary power because it is impossible to establish a rule of law for every conceivable situation which could arise in the course of a trial. Likewise, it is impossible to establish rules for every possible sequence of events and types of violations that may ensue in the discovery process.

While it is possible that reasonable men would differ with the decision and sanctions imposed by the trial judge here, the record contains a logical basis for the exercise of his discretion. The trial court expressly found at the hearing on the motion for sanctions that the defendant “knew what was going on” and had “total disregard for the consequences” of the pending action. Such facts would support an interpretation that his noncompliance was willful. See, e.g., Johnson v. Allstate Insurance Co., 410 So.2d 978 (Fla. 5th DCA 1982).

Florida Rule of Civil Procedure 1.380 clearly authorizes the sanctions imposed by the trial court for the defendant’s failure to comply with the court’s order. The purpose of the rules of civil procedure is to promote the orderly movement of litigation. Admittedly, the sanctions imposed here are severe. We cannot say that they are inappropriate, however, in light of the evidence. There was no showing that the defendant either attempted to comply with the discovery order or communicated any explanation or excuse to the court by the time the plaintiffs’ motion was heard. Cf, Herold v. Computer Components International, Inc., 252 So.2d 576, 581 (Fla. 4th DCA 1971). Nor is this a case where the record was devoid of any evidence reflecting willful disregard of an order of court, Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971); Travelers Insurance Co. v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978), or where the sanction is in effect punishing the litigant too severely for an act or failure on the part of his counsel. Beasley v. Girten, 61 So.2d 179 (Fla.1952); Goldman v. Tabor, 239 So.2d 529 (Fla. 2d DCA 1970).

We agree that the striking of pleadings or entering a default for noncompliance with an order compelling discovery is the most severe of all sanctions which should be employed only in extreme circumstances. Hart v. Weaver, 364 So.2d 524 (Fla. 2d DCA 1978). A deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions, Swindle v. Reid, 242 So.2d 751 (Fla. 4th DCA 1970), as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness, Herold v. Computer Components International, Inc., 252 So.2d 576 (Fla. 4th DCA 1971). In Santuoso, the Third District Court of Appeal reversed the trial court because the order entering default against the defendants for failing to comply with discovery did not recite that Santuoso’s failure to submit to discovery was willful. 385 So.2d at 114. In the instant case the trial court found that the defendant’s actions amounted to willful disregard. Accordingly, we approve the decision of the District Court of Appeal.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, EHRLICH and SHAW, JJ., concur.

McDONALD, J., dissents.


author: EHRLICH, Justice. BOYD, Justice,

text:
    LIFE INSURANCE COMPANY OF GEORGIA, Petitioner, v. Jim F. LOPEZ, Respondent.
    No. 61558.
    Supreme Court of Florida.
    Dec. 8, 1983.
    Rehearing Denied Feb. 13, 1984.
    Marjorie Gadarian Graham, of Jones & Foster, West Palm Beach, for petitioner.
    Tomberg & Tomberg, Boynton Beach, and Thomas A. Hoadley of Hoadley & Ga-vigan, West Palm Beach, for respondent.
   EHRLICH, Justice.

This cause is before the Court for consideration of a question certified to us as being of great public importance. Lopez v. Life Insurance Company of Georgia, 406 So.2d 1155 (Fla. 4th DCA 1981). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

In 1980, Jim Lopez filed suit against Life Insurance Company of Georgia, claiming the company’s negligence had endangered his life and caused him injury. In the complaint, Lopez alleged that his total family income amounted to $9,000 per year. Nonetheless, he alleged, the insurance company issued to Lopez’s wife insurance coverage on his life with a total face value of $130,000 and $260,000 for accidental death. The annual premiums, paid out of family income, were $7,464. Lopez further alleged that he was not aware that his wife was purchasing life insurance; he claimed to have been tricked into signing the forms, believing his wife was purchasing a health insurance policy.

The complaint stated that in early 1977, Lopez overheard his wife and her brother plotting to kill him. Lopez allegedly called his insurance agent immediately, informing him of the conspiracy, but the insurance company made no inquiry into the matter. In May 1977 Lopez’s wife and brother-in-law abducted him, it was alleged, and were attempting to drown him when a deputy sheriff happened upon the scene and rescued him. The complaint charged the insurance company with negligence in failing to discover the disproportion of the coverage to the family’s financial circumstances and negligence in failing to investigate the conspiracy to murder Lopez after receiving actual notice.

The trial court dismissed Lopez’s complaint, with prejudice, for failure to state a cause of action. The district court reversed the order dismissing the complaint and remanded the cause to the trial court. On consideration of petition for rehearing, the district court certified the following as a question of great public importance:

Whether an insurer issuing a life insurance policy can be liable in tort to the insured where the policy beneficiary attempts to murder the insured in order to collect the policy benefits?

406 So.2d at 1160.

We find the language of this question to be overbroad in relation to the facts of the case before us and so restrict the issue:

Whether an insurer issuing an insurance policy can be liable in tort to the insured where the policy beneficiary attempts to murder the insured in order to collect the policy benefits and where the insurer had actual notice of the policy beneficiary’s murderous intent.

We answer the question as rephrased in the affirmative and approve the decision of the district court.

As the district court noted, and as the parties to the appeal concede, there exists no statutory or case law directly addressing the issue presented. Florida law prohibits issuance of an insurance policy to one who has no insurable interest in the thing insured. § 627.404, Fla.Stat. (1981).

Only two states have recognized a cause of action against an insurance company whose negligence in issuing a policy allegedly exposed the insured to danger from the beneficiary of the policy. In Liberty National Life Insurance Co. v. Weldon, 267 Ala. 171, 100 So.2d 696 (1957), the Alabama Supreme Court recognized a cause of action against an insurance company which had issued policies on a child’s life to the child’s aunt by marriage. The finding of liability there was predicated on the aunt’s lack of an insurable interest. The court recognized the insurance company’s duty to exercise reasonable care not to issue a life insurance policy to one without an insurable interest in that life, reasoning that where the benefits of the policy are not counterbalanced by a benefit flowing from the life itself, the policy holder is “wagering” to profit from the death of the insured.

The issue of consent to purchase life insurance by and for the benefit of one other than the insured was addressed in South Carolina. Ramey v. Carolina Life Insurance Co., 244 S.C. 16, 135 S.E.2d 362 (1964). There a husband was allowed to sue the company which issued an insurance policy on his life because he alleged that the company had actual knowledge that his signature on the consent form was forged. The court ruled that the public policy prohibiting issuance of life insurance policies without the knowledge and consent of the insured applied even when the purchaser of the policy had a recognized insurable interest. Issuance of the policy in the face of actual knowledge that the signature on the consent form was forged was held to violate a duty of care and to create a situation conducive to illegal attempts on the life of the insured.

Neither case is directly- applicable to the facts before us. Mrs. Lopez clearly had an insurable interest in Mr. Lopez’s life. The allegation that Mr. Lopez’s signature on the forms was obtained by trickery is not legally analogous to the allegation of actual knowledge of forgery in the Ramey case. The case before us is unique and must be decided narrowly on its facts.

Insurance companies cannot in the usual course of business dealings be held to be guarantors of their customers’ good intentions. Neither can they be relieved of a duty to investigate when a beneficiary’s criminal motive in purchasing the policy is made known.

The pivotal issue in this case is the allegation that the insurance company had actual notice of the policy beneficiary’s murderous intentions toward the insured. This notice should have triggered an investigation which would in its earliest stages have uncovered the disproportion between the insured’s economic worth to the beneficiary dead and alive, the insured’s lack of consent to the issuance of the policy, and the financial impossibility of the couple meeting the premium payments for any extended period of time. Such an aggregation of suspicious circumstances must surely impose on the insurance company a duty to eliminate any motive for effecting the insured’s death, if not by withdrawing the coverage as void for reasons of public policy, then at least by warning the beneficiary that no proceeds would be payable if she in fact murdered the insured. Knowledge that the insurance company was aware of the plot and would scrutinize the insured’s “accidental” death would surely serve as a deterrent to the accomplishment of the evil purpose.

To absolve the insurance company from any responsibility in the face of actual notice allows the company to continue to collect a premium with the high probability of being able to avoid any payment on the policy. This, in effect, allows the company to “make book” that murder will ensue, and the company will therefore benefit. Such a holding is unconscionable and an insult to the insurance industry.

We emphasize the procedural posture of this case: The trial court dismissed the complaint with prejudice. In reviewing such action, we must assume as true all allegations well plead in the complaint. Actual notice, the disproportionate coverage, the insured’s lack of consent and the amount of the annual payment were all alleged in the complaint. There has been no finding of fact. We therefore approve the district court of appeal and remand the cause to the trial court for further proceedings.

It is so ordered.

ALDERMAN, C.J, and ADKINS, OVERTON and McDONALD, JJ, concur.

BOYD, J, dissents with an opinion.

BOYD, Justice,

dissenting.

The Court today creates a new cause of action not previously recognized under the law of Florida. All facets of the insurance industry, including the legal rights and obligations of parties to insurance contracts, are the subject of pervasive regulation under our state’s statutes. The Florida Insurance Code comprises chapters 624 through 632, Florida Statutes (1981). Since the legislature has involved itself so thoroughly in the regulation of the field, the lack of a statute creating the liability which the Court now recognizes should be deemed to indicate a legislative judgment against recognizing such a cause of action. Examination of specific statutes supports this view as the following discussion will show.

Respondent’s complaint alleged that his wife had contracted with Life of Georgia for several policies on his life and that the policies were obtained without his consent or knowledge in that he signed the applications thinking they pertained to health insurance. He alleged that the policies were obtained “between the years 1974 and 1977.” The complaint alleged that the Lopez family income was about $9,000 per year and the net worth was zero. The premiums on the policies came to a total of $622.00 monthly. The complaint alleged that when respondent learned of the alleged plot against his life, “he immediately called his insurance agent,” reported the conspiracy and asked that any .policies on his life be cancelled. Respondent concluded that the insurer’s failure to cancel the policies or investigate his report proximately cause his damages incurred in the alleged attempt on his life.

The present situation is readily distinguishable from the only cases from any American jurisdictions that have recognized insurer liability for endangering the life of an insured through negligence. In Liberty National Life Insurance v. Weldon, 267 Ala. 171, 100 So.2d 696 (1957), liability was imposed for negligently contributing to the wrongful death of the insured predicated on the issuance of a policy to an applicant-beneficiary with no insurable interest in the life of the insured. In Ramey v. Carolina Life Insurance Co., 244 S.C. 16, 135 S.E.2d 362 (1964), it was held wrongful as a matter of public policy for an insurer to issue a policy of life insurance without the knowledge of the insured. It was alleged there that the insured’s signature was forged on the application and that the insurer knew it was forged.

Unlike Weldon, in the present case there clearly was an insurable interest because of the relation of husband and wife. See 43 Am.Jur.2d Insurance §§ 503, 505 (1969). Unlike Ramey, here there was no allegation that the insurer knew or should have known at the time the policies were issued that the insured did not consent to or have knowledge of the policies.

The district court held that the marital relationship was inadequate to establish insurable interest in view of the disproportion between the coverage and Lopez’ income. The court also emphasized Lopez’ lack of consent based on his allegation of his wife’s trickery.

In Florida, public policy demands that the beneficiary of an insurance policy covering either life or property have an insurable interest in the life or property insured. In the absence of an insurable interest, the law condemns such policies as mere wagering contracts. Meerdink v. American Insurance Co., 137 Fla. 587, 188 So. 764 (1939); Knott v. State ex rel. Guaranty Income Life Insurance Co., 136 Fla. 184, 186 So. 788 (1939); National Benefit Life Insurance Co. v. Brown, 103 Fla. 758, 139 So. 193 (1931); Airvac, Inc. v. Ranger Insurance Co., 266 So.2d 178 (Fla. 4th DCA 1972); Aetna Insurance Co. v. King, 265 So.2d 716 (Fla. 1st DCA 1972); Flynn v. Prudential Insurance Co. of America, 223 So.2d 86 (Fla. 3d DCA 1969); Peninsular Fire Insurance Co. v. Fowler, 166 So.2d 206 (Fla. 2d DCA 1964). It does not follow, however, that the issuance of a life insurance policy without inquiry into the nature and extent of the beneficiary’s interest in the insured creates a tort cause of action in favor of the insured.

Section 627.404, Florida Statutes (1979), provides:

An insurer shall be entitled to rely upon all statements, declarations and representations made by an applicant for insurance relative to the insurable interest which such applicant has in the insured; and no insurer shall incur any legal liability except as set forth in the policy, by virtue of any untrue statements, declarations or representations so relied upon in good faith by the insurer.

Thus the public policy of Florida, as expressed in a statute directly pertaining to the doctrine of insurable interest, specifically negates any duty of inquiry into the actual insurable interest of an applicant-beneficiary.

Section 627.405, Florida Statutes (1979), by its terms only applies to property insurance but provides a definition of the concept of insurable interest:

(1) No contract of insurance of property or of any interest in property or arising from property shall be enforceable as to the insurance except for the benefit of persons having an insurable interest in the things insured as at the time of the loss.
(2) “Insurable interest” as used in this section means any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.
(3) The measure of an insurable interest in property is the extent to which the insured might be damnified by loss, injury, or impairment thereof.

Many jurisdictions recognize a general rule that a policy of life insurance taken out without the consent or knowledge of the person whose life is insured is against public policy and unenforceable. 43 Am. Jur.2d Insurance § 242 (1969); 44 C.J.S. Insurance § 241 (1945). However, respondent has cited no Florida decisional or statutory law establishing such a rule. Indeed, the Florida Insurance Code seems to indicate that there is no such requirement. Section 627.631, Florida Statutes (1979), provides:

The word “Insured,” as used in this chapter, shall not be construed as preventing a person other than the insured with a proper insurable interest from making application for and owning a policy covering the insured or from being entitled under such a policy to any indemnities, benefits, and rights provided therein.

Furthermore, in many jurisdictions the rule that the person whose life is insured must consent to the issuance of the policy is held to be based on insurance companies’ own application requirements. Thus the rule exists for the benefit and protection of insurers and may be waived. An insurer who treats an insurance application as sufficient may be held to have waived the requirement that the insured sign the application. See, e.g., Crump v. Northwestern National Life Insurance Co., 236 Cal.App.2d 149, 45 Cal.Rptr. 814 (Cal.Ct.App. 1965); Mailhoit v. Metropolitan Life Insurance Co., 87 Me. 374, 32 A. 989 (1895); Fisher v. Metropolitan Life Insurance Co., 160 Mass. 386, 35 N.E. 849 (1894); Fulton v. Metropolitan Life Insurance Co., 4 Misc. 76, 23 N.Y.S. 598 (Sup.Ct.1893); Henry v. Lincoln Income Life Insurance Co., 405 S.W.2d 167 (Tex.Civ.App.1966). Whatever may be the rights and remedies as between the applicant and the insurer, the failure of an insurer to insist upon compliance with such a condition surely creates no right of redress in favor of the person whose life is insured.

The majority opinion emphasizes the fact that if Lopez’ wife had succeeded in killing him, the insurance company could have refused to pay her the policy benefits on the ground that she had murdered the insured. However, unless the policy were found to be void ab initio due to Mrs. Lopez’ fraudulent intent at the time she applied for and was issued the policies, the insurer would not be relieved of the duty of paying the death benefits, but would be obliged to pay them to contingent beneficiaries or the estate of the insured. New England Mutual Life Insurance Co. v. Null, 554 F.2d 896 (8th Cir.1977); Carter v. Carter, 88 So.2d 153 (Fla.1956). The complaint contains no allegation that respondent s wife was already planning the murder and fraud at the time she applied for and obtained the policies.

Even if it be conceded that the insurer here violated some duty of reasonable care, either by failing to investigate the insurable interest of the beneficiary or by failing to cancel the policy at the request of the person whose life was insured, I believe the complaint was properly dismissed because it failed to sufficiently allege that the asserted violation was the proximate cause of respondent’s damages. While the complaint does contain a conclusory assertion of proximate cause, it does not appear from the complaint what action by the insurer would have been effective to prevent the criminal attack that is alleged to have taken place. Thus while the complaint alleges that the risk was foreseeable, it does not contain a sufficient allegation of causation in fact. See Loftin v. Wilson, 67 So.2d 185 (Fla.1953). If respondent had wanted someone to prevent a threatened attempt on his life, he should have notified and sought the protection of law enforcement authorities.

The majority opinion, in holding that the insurer had a duty to investigate, places a tremendous burden on life insurers. They will now be required to launch investigations upon receipt of unsubstantiated reports from their insureds and perhaps also from disinterested and even anonymous persons. Such investigations, by their very nature, pose a danger to insurance companies in that they may become subject to accusations of invasion of privacy and slander. Moreover, if the investigation turns up inaccurate information, the insurer may be led to wrongfully cancel a policy that should be kept in force.

For the foregoing reasons I conclude that the district court erred in reversing the judgment and would answer the certified question in the negative.

      . Thus, contrary to an implication in the majority opinion, there was no specific allegation that the policies had only been in effect a very short time when the alleged murder attempt took place.

      . Contrary to what the majority finds, there was no allegation that the monthly premiums were actually paid from Mr. Lopez’s earnings of about $750.00 per month.

      . Subsequent to the events giving rise to this case, the legislature amended section 627.631 to apply only to Part VI of chapter 627, dealing with disability insurance policies. Ch. 81-243, § 481, Laws of Fla. (1981).


author: BOYD, Justice.

text:
    STATE of Florida, Petitioner, v. Patricia D. WILLIAMS, Respondent.
    No. 62852.
    Supreme Court of Florida.
    Dec. 8, 1983.
    Rehearing Denied Feb. 13, 1984.

      Jim Smith, Atty. Gen., and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for petitioner.
    Glenna Joyce Reeves, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for respondent.
   BOYD, Justice.

We have for review a decision of a district court of appeal, Williams v. State, 420 So.2d 404 (Fla. 1st DCA 1982), which expressly and directly conflicts with a decision of another district court of appeal. State v. Vanyo, 417 So.2d 1104 (Fla. 4th DCA 1982). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Ronald Wampler, an informant for the police, met respondent Patricia Williams outside a courtroom where they both had scheduled appearances. He asked her if she knew where he could buy a large amount of marijuana. At first she replied in the negative, but in response to his offer of a large finder’s fee she finally said that she might know someone who could find such a large amount, and gave Wampler her home telephone number. That afternoon Wampler called her from the office of a state attorney’s investigator. The conversation was taped without a warrant, but with Wampler’s consent. Wampler made several other calls to respondent, some of which were taped. There were also some in-person meetings taped by use of a hidden transmitter carried by Wampler on his person, but these did not take place in respondent’s home. The conversations eventually led to a purchase by investigators of some fifty pounds of marijuana from another person.

Respondent was charged with sale or delivery of marijuana and solicitation to traffic in marijuana. She was also charged with violation of probation based on the incident. She filed a motion to suppress the tape recordings of the telephone conversations and “the fruits thereof,” which included testimony about the telephone conversations, the tapes of the in-person conversations, testimony about the in-person conversations, and any testimony or evidence about the subsequent controlled purchase by investigators. The motion was based on the legal proposition that the unwarranted interception and recording of the telephone conversations were unconstitutional intrusions into the security and privacy of the home under article I, section 12, Florida Constitution (1968), and that the other items were tainted fruits of the illegal intrusion so that all the evidence was inadmissible. The trial court denied the motion to suppress, holding that the taping of the conversations did not violate respondent’s constitutional rights and was authorized by statute, and that even if it was improper, the subsequently obtained evidence against her was not tainted by the impropriety.

After the denial of her motion to suppress, respondent entered a plea of nolo contendere to a charge of misdemeanor solicitation and violation of probation, reserving the right to appeal the denial of the motion. The state abandoned the charge of sale and delivery. Petitioner was sentenced to two years incarceration for violation of probation and one year for misdemeanor solicitation, the sentences to run concurrently.

On appeal, the district court reversed, holding that the warrantless recordings of the telephone conversations from within respondent’s home should have been suppressed. The court interpreted State v. Sarmiento, 397 So.2d 643 (Fla.1981), to hold that any warrantless interception of a person’s private communications emanating from within the home is unreasonable and therefore violates article I, section 12, Florida Constitution. The court did not, however, accept respondent’s argument about the fruits of the warrantless interceptions. The court held that the warrant-less recordings of the in-person conversations, as well as testimony about and fruits of all the conversations, were properly held admissible.

The state argues that the district court decision should be reversed because of the 1982 amendment to article I, section 12. We have held, however, that the amendment is to be given prospective effect only. State v. Lavazzoli, 434 So.2d 321 (Fla.1983). The operative facts of this case and the proceedings in the trial court took place at a time prior to the effective date of the amendment. Therefore, article I, section 12, Florida Constitution (1968), applies to this case.

The state argues that State v. Sarmiento, does not compel the district court’s holding and should not be extended to apply to the present situation.

Section 934.03(2)(c), Florida Statutes (1979), provides:

It is lawful under this chapter for a law enforcement officer or a person acting under the direction of a law enforcement officer to intercept a wire or oral communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.

In State v. Sarmiento this Court held that the warrantless electronic monitoring and recording of a conversation between an undercover police officer and the accused which took place inside the home of the accused was, even though the police had the consent of one of the parties to the conversation, unreasonable and violated article I, section 12, Florida Constitution (1968). Regarding the effect of section 934.03(2)(c), the Court said that “insofar as that statute authorizes the warrantless interception of a private conversation conducted in the home, it is unconstitutional and unenforceable.” 397 So.2d at 645 (emphasis in original). The present ease is factually distinguishable from Sarmiento in that here the conversation did not take place wholly within the home but rather took place by telephone with one terminus of the conversation being within the home. Since the Sarmiento decision, we have clearly indicated that the Sarmiento holding should be limited to the specific facts of that case. E.g., Morningstar v. State, 428 So.2d 220 (Fla.1982); Hill v. State, 422 So.2d 816 (Fla.1982), cert. denied, — U.S. -, 103 S.Ct. 1262, 75 L.Ed.2d 488 (1983).

The determinative factor in Sarmiento was that both parties to the conversation— the target of the investigation and the law enforcement officer or consenting informant — were personally present inside the home of the target at the time of the interception. The communication was in-person, an “oral communication” under the statute. Here the conversation was by telephone and only the target of the investigation was within her home. We decline to characterize this conversation as having been conducted in her home. We therefore hold that Sarmiento does not apply and, accordingly, that section 934.03(2)(c) does. Accord State v. Vanyo, 417 So.2d 1104 (Fla. 4th DCA 1982); Miller v. State, 411 So.2d 944 (Fla. 4th DCA), rev. denied, 419 So.2d 1199 (Fla.1982); Jacobs v. State, 389 So.2d 1054 (Fla. 3d DCA 1980), rev. denied, 397 So.2d 778 (Fla.1981); State v. Shaktman, 389 So.2d 1045 (Fla. 3d DCA 1980), rev. denied, 397 So.2d 779 (Fla.1981). The interception and taping did not contravene article I, section 12, Florida Constitution (1968).

The informant testified that he consented to the interception of the wire communication by law enforcement authorities. He identified the tape recordings of the conversations. The purpose of the interception was to gain evidence of a future criminal act. Therefore the tape recordings were lawful under chapter 934 and were admissible.

Having decided that we must overrule the district court on the question of whether the telephone conversations were monitored and recorded in violation of the Florida Constitution, we need not consider the respondent’s argument that the trial and appellate courts erred in finding the remaining items of evidence untainted by constitutional illegality.

We quash the decision of the district court of appeal. We remand and direct that the trial court’s order denying the motion to suppress be affirmed.

It is so ordered.

ALDERMAN, C.J., and ADKINS, OVERTON, McDonald and EHRLICH, JJ., concur.

       Under chapter 934, "wire communication” means:
      any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of intrastate, interstate, or foreign communications.
      § 934.02(1), Fla.Stat. (1979). “Oral communication” means:
      any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting.
      § 934.02(2). “Intercept” means "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device." § 934.02(3).


author: SHAW, Judge.

text:
    STATE of Florida, Petitioner, v. Moses K. MURRAY, Respondent.
    No. 63364.
    Supreme Court of Florida.
    Jan. 12, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Gary S. Israel, West Palm Beach, for respondent.
   SHAW, Judge.

Petitioner seeks review of Murray v. State, 425 So.2d 157 (Fla. 4th DCA 1983), because of direct and express conflict with Cobb v. State, 376 So.2d 230 (Fla.1979); Tacoronte v. State, 419 So.2d 789 (Fla. 3d DCA 1982); Zamot v. State, 375 So.2d 881 (Fla. 3d DCA 1979); and Oliva v. State, 346 So.2d 1066 (Fla. 3d DCA), cert. dismissed, 348 So.2d 951 (Fla.1977), cert. denied, 434 U.S. 1010, 98 S.Ct. 719, 54 L.Ed.2d 752 (1978). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Respondent was convicted of possession of a firearm by a felon. The district court of appeal reversed. The issue presented to the district court was whether the prosecutor’s closing argument constituted reversible error. In attacking defendant’s credibility, the prosecutor argued:

I suggest to you, ladies and gentlemen, that here is a man who thinks he knows the law; thinks he can twist and bend the law to his own advantage and lie to you in court so that he is acquitted and not sent to prison as a result or otherwise adjudicated in any fashion.

Murray, 425 So.2d at 158. Defense counsel objected immediately and moved for mistrial. The motion for mistrial was denied, but the prosecutor was instructed that he could not argue the mental state of the defendant in giving his testimony.

In reversing the conviction, the district court stated:

This last comment, neither provoked nor justified, was a plain violation of the Code of Professional Responsibility. The criminal justice system cannot function without zealous prosecution, nor with unprofessional advocacy — whether the latter be in the form of indifference on the one hand or intemperate conduct on the other. One cannot successfully prosecute without fire in the belly nor with its misuse. (Footnote omitted, emphasis in original.)

Murray, 425 So.2d at 158-59.

When there is overzealousness or misconduct on the part of either the prosecutor or defense lawyer, it is proper for either trial or appellate courts to exercise their supervisory powers by registering their disapproval, or, in appropriate cases, referring the matter to The Florida Bar for disciplinary investigation. Arango v. State, 437 So.2d 1099 (Fla.1983); Spenkelink v. Wainwright, 372 So.2d 927 (Fla.1979) (Alderman, J., concurring specially); Jackson v. State, 421 So.2d 15 (Fla. 3d DCA 1982). Nevertheless, prosecutorial error alone does not warrant automatic reversal of a conviction unless the errors involved are so basic to a fair trial that they can never be treated as harmless. The correct standard of appellate review is whether “the error committed was so prejudicial as to vitiate the entire trial.” Cobb, 376 So.2d at 232. The appropriate test for whether the error is prejudicial is the “harmless error” rule set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and its progeny. We agree with the recent analysis of the Court in United States v. Hasting,-U.S. -, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). The supervisory power of the appellate court to reverse a conviction is inappropriate as a remedy when the error is harmless; prosecutorial misconduct or indifference to judicial admonitions is the proper subject of bar disciplinary action. Reversal of the conviction is a separate matter; it is the duty of appellate courts to consider the record as a whole and to ignore harmless error, including most constitutional violations. The opinion here contains no indication that the district court applied the harmless error rule. The analysis is focused entirely on the prosecutor’s conduct; there is no recitation of the factual evidence on which the state relied, or any conclusion as to whether this evidence was or was not dispositive.

We have reviewed the record and find the error harmless. The evidence against the defendant was overwhelming. Evidence was introduced showing that defendant had been previously convicted of felony robbery. Two witnesses testified that just preceding the arrest they saw defendant with a firearm. One of these witnesses testified that defendant had hidden the firearm under a vehicle passenger seat on which defendant sat. A police officer testified that he stopped the vehicle in which defendant was a passenger, and found the firearm under defendant’s seat. Another officer testified that defendant had made a statement to him admitting that he had the firearm in his possession. In the face of this evidence, defendant took the stand and denied that he had ever possessed the firearm or known of its existence. Under these circumstances, the credibility of defendant as a witness was subject to attack in closing argument. While the prosecutor’s comments were excessively pungent, the court admonished him upon objection, and the remarks do not rise to the level of harmful error.

The decision of the district court of appeal is quashed and the case remanded for reinstatement of the trial court judgment.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, MCDONALD and EHRLICH, JJ., concur.