Opposition Brief — Vintage Enterprises, Inc. v. Jaye

Supreme vow’

“9 FILED

| 1089

No. 89-456 oct it

ncePH F. SPANIOL, JR.

+ ERK

IN THE stl

Supreme Court of the United States

OCTOBER TERM, 1989

VINTAGE ENTERPRISES, INC.,

Debtor In Possession,

Petitioner,

Vs.

WayYNE JAYE and CAROLYN JAYE,

Respondents.

On Petition for a Writ of Certicrari

to the Supreme Court of Alabama

BRIEF OF RESPONDENTS WAYNE JAYE AND

CAROLYN JAYE IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

JOHN PERCY OLIVER

Attorney at Law

109 Columbus Street

Dadeville, AL 36853

(205) 825-9296

STEVEN F. SCHMITT

Attorney at Law

213 Barnett Boulevard

P.O. Box 606

Tallassee, AL 36078

(205) 283-6855

Counsel for Respondents

St. Louis Law Printing Co., Inc., 13305 Manchester Road 63131 314-231-4477

QUESTIONS PRESENTED

1. Whether the Supreme Court of the United States should

grant a Petition For A Writ of Certiorari to the Supreme Court

of Alabama to consider a Fourteenth Amendment due process

issue when that issue was not properly raised, argued, briefed,

or preserved at the state trial court or state supreme court level?

2. Whether the Supreme Court of the United States should

grant a Petition For A Writ Of Certiorari to the Supreme Court

of Alabama when the Petitioner has failed to present any special

and important reasons consistent with Rule 17 of the United

States Supreme Court Rules?

iii

TABLE OF CONTENTS

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Ne ce cciues

Proposed Constitutional Provision Involved ..........

ES a

Reasons for Denying the Petition For A Writ Of

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I. Petitioner Has Failed To Timely And Properly

Raise, Argue, Brief, Or Preserve Any Fourteenth

Amendment Issue Of ‘*Due Process’’ ...........

Il. Petitioner Has Failed To Present Any ‘‘Special

And Important Reason’’ Consistent With Rule 17

Of The United States Supreme Court Rules.......

A.

Petitioner Has Failed, In This Particular Case

With its Particular Facts, To Present Any

‘‘Important Question’? Of Federai Law

Which This Court Should Settle [United

States Supreme Court Rule 17.1(c)] .........

Petitioner Has Failed To Present Any ‘‘Im-

portant Question’’ Of Federal Law Which

Has Been Decided By The State Courts Of

Alabama [United States Supreme Court Rule

DEDUCE ne heen hin sé 64.606 04s weno

SOSA EE ESS ER

NY NY WN

iv

APPENDIX:

A.

B.

Rule 40 Alabama Rules of Appellate Procedure .. .

Article of August 29, 1989 from Henderson, North

Carolina Daily Dispatch . .. 1... 66 eee eee

Ruie 51 Alabama Rules of Civil Procedure .......

Cases:

Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813

(1986)

Aircraft and Diesel Equipment Corp. v. Hirsch, 67

S. Ct.

TABLE OF AUTHORITIES .

1493, 1498, 331 U.S. 752, 763 (1947) .......

Alexander v. Corden Pipe, 54S. Ct. 292, 293 (1934)...

Baker v. Carr, 369 U.S. 186 (1962) ............0.000e

Bankers Life and Casualty Co. v. Crenshaw, i08 S. Ct.

1645 (1988) ............ sUN Om Keane's dee saeecs

Bingham v.

Borden’s Farm Products Co. v. Baldwin, 55 S. Ct. 187,

U.S., 56S. Ct. 180, 296 U.S. 211 (1935)...

Deen ee ss eu bbe

Burton v. Burtcii, 379 So.2d 617 (Ala. Civ. App. 1980) .

Central Alabama Electric Cooperative v. Tarley [MS.

87-1188 May 12, 1989] So.2d (Ala. 1989) .........

Conley v. Beaver, 437 So.2d 1267 (Ala. 1983) .........

Government and Civic Emp. Organizing Committee,

CID, v. Windsor, 77 S. Ct. 838, 353 U.S. 364

(1957)

“eer eereeeeeeeeeeeeeeeeeeeeeeeeeeee ee eee

Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala. 1989)...

Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.

1986)

Hicks v. Huggins, 405 So.2d 1324, 1327 (Ala. Civ. App.

1981)

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10

10

vi

Industrial Chemical and Fiberglass Corp. v. Chandler,

[MS. 88-381, 385 June 23, 1989] _____ So.2d, ___

COS) eee cree 11

New York Rock Co. v. Poznan, 47 S. Ct. 482, 485, 274

U.S. BUT (1927)... ccc eens cnnecececesensens 8

Olympia Spa v. Johnson, 547 So.2d 80 (Ala. 1989) ..... 7

Wiliser v. U.S., 54S. Ct. 840, 847, 292 U.S. 571 (1934) . 8

Other Authorities:

Rule 40 Alabama Rules of Appellate Procedure ....... 3

Rule 51 Alabama Rules of Civil Procedure............ 6

United States Supreme Court Rule 17.1(c) ............ i,9,11

Soe Sas GUM PIEDS i'n GA ei weas 85 6 Obs Meek eke iceses 2

No. 89-456

IN THE

Supreme Court of the United States

OcTOBER TERM, 1989

VINTAGE ENTERPRISES, INC.,

Debtor In Possession,

Petitioner,

vs .

Wayne JAYE and CAROLYN JAYE,

Respondents.

On Petition for a Writ of Certiorari

to the Supreme Court of Alabama

BRIEF OF RESPONDENTS WAYNE JAYE AND

CAROLYN JAYE IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

Respondents Wayne Jaye and Carolyn Jaye pray that the

Petition For A Writ Of Certiorari be denied for the purposes of

reviewing the judgment of the Supreme Court of Alabama

entered on June 23, 1989.

OPINIONS BELOW

The opinion of the Supreme Court of Alabama affirming the

judgment against Petitioner for $20,000.00 in compensatory

damages and $500,000.00 in punitive damages is reprinted in

—

Petitioner’s Brief, Al-A8. The opinion of the Circuit Court of

Tallapoosa County denying Petitioner’s post-trial motions is

reprinted in Petitioner’s Brief, A23-A28.

JURISDICTION

The jurisdiction of this Court has been invoked under 28

U.S.C. §1257(a).

PROPOSED CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to the United States Constitu-

tion provides in relevant part as follows:

**...nor shall any State deprive any person of life, liberty,

or property without due process of law....”’

STATEMENT OF THE CASE

This case involves the Respondents’ (Wayne and Carolyn

Jaye) purchase of a mobile home ordered from and manufac-

tured by Petitioner Vintage Enterprises, Inc. This home was

delivered to the Jayes replete with manufacturing defects known

to Vintage at its plant before shipment. The home was priced

with options ordered but never provided. Costs were charged to

the home on items which the Jayes never ordered.

Petitioner appealed from a jury verdict of $20,000.00 in com-

pensatory damages and $500,000.00 in punitive damages

entered in favor of the Respondents in the Circuit Couri of

Tallapoosa County, Dadeville Division, Alabama. The jury

also entered a verdict in favor of the co-defendant, James

Harold Cantrell (dealer who soid the mobile home to the Jayes).

Petitioner appealed from the Tallapoosa County Circuit

Court’s denial of its post-trial ‘‘Motion for Judgment Not-

withstanding the Verdict; Motion for New Trial; Motion for

Remittitur’’ (hereinafter referred to as ‘‘post-trial motions’’).

7

Vintage was granted an opportunity at a hearing held on July

15, 1988 to present any old, new, or additional evidence to the

trial judge in swpport of its post-trial motions. Under Alabama

procedure, in effect at the time, Vintage could have submitted

evidence proving that the punitive damage award was excessive

or unconstitutional.' As the record of this hearing reflects, no

sworn testimony was offered by Vintage nor was any verified

document offered to establish either the excessiveness or the un-

constitutionality of the jury’s verdict in this case. Although

Petitioner now claims that this jury verdict has caused it to file

bankruptcy, Vintage did not present any evidence at this post-

trial hearing which substantiated its financial condition. The

comptroller of Vintage was present at the hearing but was not

called as a witness to testify to Vintage’s financial condition.

Vintage’s only attempt to offer evidence at the hearing was by

an uncertified, uncorroborated 1988 Annual Report which the

Respondents were not given an Opportunity to cross-examine or

contest.

The Supreme Court of the State of Alabama affirmed the

trial court’s denial of these post-trial motions. To this affir-

mance, Petitioner failed to file any application for rehearing

which it was entitled to do under Rule 40 of the Alabama Rules

of Appellate Procedure (Appendix A). Subsequently, Vintage

fiied this Petition for Writ of Certiorari.

Vintage has presented no evidence in any legal proceeding

which establishes that its alleged bankruptcy was caused by the

$500,000.00 punitive damage award here chailenged. Petitioner

has paid nothing to the respondents in this case as of the writing

of this brief. Yet, Petitioner advances the unfounded argument

that this judgment has forced it into bankruptcy.

' A review of the transcript of the July 15, 1988 hearing reflects that

no constitutional question or issue in general, and the Fourteenth

Amendment in particular, was ever argued, briefed or mentioned by

Vintage. The trial court’s denial of Vintage’s post-trial motions did

not address the Fourteenth Amendment due process claim.

As early as May 23, '988, Vintage was representing to its

stockholders, and later t) he trial court, that it had established

reserves sufficient for the ‘‘ultimate resolution’’ of the Jayes’

claim. As late as August 29, 1989, a company official was

reported as stating to the local newspaper in Henderson, North

Carolina:

**We plan to continue beth operations,’’ the official

said. He estimated that the Henderson plant is worth

$1,500,000.00 and that Vintage Enterprises has an overall

annual sales of $30,000,000.00.

The official stated that he felt ‘‘very good’’ about the future of

Vintage. (Appendix B.) Vintage’s assertion that this case has

forced it into bankruptcy is mere argument on the part of its

counsel contradicted by its public statements. Bankruptcy has

provided Vintage with a temporary means of escape from the

accountability of the judgment entered by the Alabama courts.

a pe

REASONS FOR DENYING THE PETITION

FOR A WRIT OF CERTIORARI

INTRODUCTION

It is not enough that a question in the abstract be worthy of

review. The issue is whether, in this particular case, the Peti-

tioner’s application is a “‘cert worthy’’ question in the proper

factual, procedural, and substantive posture. The Fourteenth

Amendment due process rights of the Petitioner were not

violated in the trial or post-trial proceedings in this case. The

substantive and procedural law of the State of Alabama concer-

ning punitive damages in effect for this case more than suffi-

ciently satisfied the Fourteenth Amendment due process rights

of Petitioner. Moreover, there were no objections to that law

properly preserved below. This case, therefore, does not pre-

sent the opportunity to resolve any Fourteenth Amendment due

process issue relative to punitive damages.

This is not a products liability case affecting the research and

development of new products. This is not a prescription drug

case affecting the introduction of a new pill or a vaccine into the

market place. This is not a design or manufacturing defect case

which could cause manufacturers and designers of airplanes,

motor vehicles, etc. to suspend or forego new projects for fear

of potential liability. This is simply a case about broken pro-

mises, deceit, and an intentional misrepresentation and suppres-

sion of the truth. For an abbreviated statement of Vintage’s

fraud proven at trial, reference is made to Judge Bryan’s opi-

nion reprinted in Petitioner’s Brief, A23-A28.

I. PETITIONER HAS FAILED TO TIMELY AND PRO-

PERLY RAISE, ARGUE, BRIEF, OR PRESERVE ANY

FOURTEENTH AMENDMENT ISSUE OF ‘‘DUE PRO-

CESS”’

The Fourteenth Amendment due process claim of the Peti-

tioner was not properly preserved, argued, briefed or raised in

any of the State Court proceedings. The Petitioner failed to

a em

mention the constitutional issue in its answer or amended

answer to the Respondents’ complaint and did not raise the con-

stitutional issue at the end of the Respondents’ case in chief by a

r-otion for directed verdict. The Petitioner failed to offer or

make a ‘‘showing”’ on the record of any evidence of its financial

worth or the adverse financial impact of a large punitive damage

award during the trial. The Petitioner failed to raise any con-

stitutional issue at the close of the evidence in the case and did

not object on constitutional grounds to any of the jury charges,

in either the pre-charge conference, when the charges were ac-

tually given, or after the charges were given. The Petitioner fail-

ed to request the trial judge to charge the jury on constitutional

grounds that it should consider the financial worth of Vintage

or the adverse financial impact on Vintage wnen determining

the amount of punitive damages to award. Due to this failure,

Vintage cannoi assign as error the trial judge’s failure to charge

the jury on this issue. ARCP 51 (Appendix C). At the time the

jury retired to reach its verdict, no constitutional issue had been

raised for the trial jury or judge to consider.

The Petitioner for the first time, after the trial of the case, in

its post-trial motions, ambiguously and without specificity sug-

gested a Fourteenth Amendment due process claim. Ground 24

of the Petitioner’s written post-trial motions states as follows:

24. The jury verdict awarding punitive damages in this

case is viOlative of the constitutional safeguards provided

to the Defendant under the due process clause of the Four-

teenth Amendment to the Constitution of the United

States in that punitive damages generally and in this case in

particular are vague and are not rationally related to

legitimate government interests.

**Constitutional issues raised for the first time in a motion for

new trial come too late for consideration on appeal.’’ Hicks v.

Huggins, 405 So.2d 1324, 1327 (Ala. Civ. App. 1981) Alabarna

courts have long required ‘‘constitutional issues’’ to be raised at

the trial on the merits in order to be preserved on appeal. Bur-

i eo

ton v. Burton, 379 So.2d 617 (Ala. Civ. App. 1980) Vintage’s

attempt to raise this constitutional question came too late under

Alabama law. Central Alabama Electric Cooperative v. Tapley,

[MS. 87-1188 May 12, 1989] So.2d (Ala. 1989); Olympia Spa v.

Johnson, 547 So.2d 80 (Ala. 1989).

Even at the post-trial motions hearing before the trial judge,

ample opportunity was given Petitioner’s counsel to argue the

constitutional issue, but no evidence, argument, or effort was

made to preserve, raise, Or even mention this issue. By this

neglect, the Petitioner has waived the Fourteenth Amendment

constitutional argument advanced to this Court. Significantly,

the Petitioner failed to properly argue a Fourteenth Amend-

ment due process claim in either its brief or reply brief to the

Supreme Court of Alabama. a

On page 44 of Petitioner’s brief to the Supreme Court of

Alabama, Vintage for the first and only time, quotes another

case mentioning the Fourteenth Amendment:

In addition, ‘‘the lack of sufficient standards governing

punitive damage awards in Alabama violates the due pro-

cess clause of the Fourteenth Amendment of the United

States Constitution and Article 1, Section 6 of the Con-

stitution of Alabama of 1901.’’ Aetna Life Insurance Co.

v. Lavoie, 505 So.2d 1050, 1061 (Ala. 1987) (Houston, J.,

concurring specially).

This vague reference to the Fourteenth Amendment was insuffi-

cient to preserve this issue before the Alabama Supreme Court

[Conley v. Beaver, 437 So.2d 1267 (Ala. 1983)], and it most cer-

tainly is not enough to preserve the issue before this Court for a

Writ of Certiorari. Borden’s Farm Products Co. v. Baldwin, 55

S. Ct. 187, 293 U.S. 194 (1934). Moreover, Petitioner did not

file a motion for rehearing on any issue before the Alabama

Supreme Court as allowed under Rule 40 of the Alabama Rules

of Appellate Procedure.

— oe

In Bankers Life & Casualty Co. v. Crenshaw, 108 S. Ct. 1645

(1988), this Court discussed but did not reach the constitutional

due process issue on punitive damage awards because it was not

properly raised or preserved in the Mississippi state courts. Vin-

tage, in its post-trial motions, Ground 24, mentioned ‘‘due pro-

cess’’ but failed to preserve any assignment of error relating to

the absence of due process ‘‘standards’’. Questions which

merely lurk in the record and are not brought to the Court’s at-

tention or ruled on are not considered as having been so decid-

ed. Bingham v. U.S., 56S. Ct. 180, 296 U.S. 211 (1935). This

Court has repeatedly refused to consider cases in which the

‘« alleged defect was not pleaded or brought to the attention of

either of the courts below’’. Wiliser v. U.S., 54S. Ct. 840, 847,

292 U.S. 571 (1934); New York Rock Co. v. Poznan, 47S. Ct.

482, 485, 274 U.S. 117 (1927); Alexander v. Corden Pipe, 54S.

Ct. 292, 293 (1934). This court stated in Aircraft and Diesel

Equipment Corp. v. Hirsch, 67 S. Ct. 1493, 1498, 331 U.S. 752,

763 (1947) ‘‘...constitutional questions are not to be entertained

upon dubious presentations, or when the _ presentation

reasonably may be taken as not intended to put them forward

squarely and inescapably’’. [See also Government and Civic

Emp. Organizing Committee, CID, v. Windsor, 77 S. Ct. 838,

353 U.S. 364 (1957): Federal courts will not pass upon constitu-

tional questions presented in the abstract rather than in concrete

form; Borden’s Farm Products Co., supra: Mere general

allegation of a violation of due process and equal protection

clauses is insufficient and not enough to properly preserve the

issue On appeal.] In Baker v. Carr, 369 U.S. 186 (1962), this

Court emphasized the importance of counsel who “‘...sharpens

the presentation of issues upon which the court so largely

depends for illumination of difficult constitutional questions.”’

369 U.S. at 204.

Additionally, questions two and three presented in

Petitioner’s brief to this Court were never raised in the State

Court below. These questions, therefore, should not be con-

sidered by this court.

db OF cs

Il. PETITIONER HAS FAILED TO PRESENT ANY

“SPECIAL AND IMPORTANT REASON’’ CGNSIS-

TENT WITH RULE 17 OF THE UNITED STATES

SUPREME COURT RULES

A. PETITIONER HAS FAILED, IN THIS PAR-

TICULAR CASE WITH ITS PARTICULAR

FACTS, TO PRESENT ANY “IMPORTANT

QUESTION’”’ OF FEDERAL LAW WHICH THIS

COURT SHOULD SETTLE [United States Supreme

Court Rule 17.1(c)].

Assuming Vintage has preserved the ‘‘due process’’ issue,

Alabama had at the time of trial and subsequent appeal a well-

defined set of guidelines which protected Vintage’s due process

rights. There is, therefore, no ‘‘important question’’ of federal

law which this Court should settle.

Factors have been developed by the Supreme Court of

Alabama as standards for the courts throughout the state to

follow in assessing punitive damage verdicts. These factors are

guidelines for the trial and appellate judges to consider in deter-

mining the amount that is proper punishment and proper deter-

rence within the facts of each particular case. In Alabama,

punitive damage verdicts are not frivolous, standardless, or

lacking the usual controls of instructions and judicial review

under these standards. No more concrete or relevant factors

could be constitutionally compelled for the protection of a

defendant’s rights under the Due Process Clause of the Four-

teenth Amendment than the following:

1. The culpability of the Defendant’s conduct.

2. The desirability of discouraging others from similar

conduct.

3. The impact upon the parties.

4. The impact upon innocent third parties. -

—_— pee

5. Punitive damages should bear a reasonble relationship

to the harm that is likely to occur from the Defendant’s

conduct as well as to the harm that actually has occurred.

If the actual or likely harm is slight, the damages should be

relatively small. If grievous, the damages should be much

greater.

6. The degree of reprehensibility of the defendant’s con-

duct should be considered. The duration of this conduct,

the degree of the defendant’s awareness of any hazard

which his conduct has caused or is likely to cause, any con-

cealment or ‘‘cover-up’’ of that hazard, and the existence

and frequency of similar past conduct should all be rele-

vant in determining this degree of reprehensibility.

7. If the wrongful conduct was profitable to the defen-

dant, the punitive damages should remove the profit and

should be in excess of the profit, so that the defendant

recognizes a loss.

8. The financial position of the defendant is relevant (see-

#3 above).

9. All the costs of litigation should be included, so as to

encourage plaintiffs to bring wrongdoers to trial.

10. If criminal sanctions have been imposed on the defen-

dant for his conduct, this should be taken into account in

mitigation of the punitive,damages award.

11. If there have been other civil actions against the same

defendant, based on the same conduct, this should be

taken into account in mitigation of the punitive damages

award.

These factors or guideiines were matters of established state law

at the time the Supreme Court of Alabama affirmed the jury

verdict in this case. Hammond v. City of Gadsden, 493 So.2d

1374, 1379 (Ala. 1986) and Green Oil sania y v. Hornsby, 539

So.2d 218, 223 (Ala. 1989).

oo

B. PETITIONER HAS FAILED TO PRESENT ANY

‘“‘IMPORTANT QUESTION’ OF FEDERAL LAW

WHICH HAS BEEN DECIDED BY THE STATE

COURTS OF ALABAMA [United States Supreme

Court Rule 17.1(c)]

This Court cannot ascertain whether or not the Supreme

Court of Alabama considered the Fourteenth Amendment due

process question when only passing reference was made to the

case Of Industrial Chemical & Fiberglass Corporation v.

Chandler, [MS. 88-381, - 385, June 23, 1989] ___ So.2d ___

(Ala. 1989) (on rehearing) in its opinion affirming the trial

court’s judgment herein. It is mere speculation on the part of

Vintage to suggest that the Supreme Court of Alabama ruled

that the verdict in this case met the constitutional requirements

of the Fourteenth Amendment. It would be speculation on the

part of the Respondents to suggest to this Court that the

Supreme Court of Alabama did not address this constitutional

question. There was, however, a procedural safeguard available

to Vintage (which it did not use) that would have required the

Supreme Court of Alabama to address the constitutional issue.

By Vintage’s failure to apply for rehearing after the Supreme

Court ruled on June 23, 1989, Vintage failed to establish

whether or not the Supreme Court of Alabama had decided this

important question of federal law. By this failure, Vintage did

not avail itself of all the remedies and due process rights granted

it under Alabama law. Procedurally, this is not a proper case

for certiorari to be granted.

CONCLUSION”

As Respondents have demonstrated, no grounds exist on

which a writ of certiorari should be granted. After exhaustive

nost-trial review, a unanimous Alabama Supreme Court affirm-

ed the award of punitive damages in this case. After affir-

mance, Petitioner did not file a motion for rehearing raising due

process violations and issues. :

ses as

This case involves punitive damages which were affirmed

after considering many standards/guidelines of fundamental

fairness and subject to stringent review with a special de novo

hearing before the trial judge on the punitive damage question.

Afterwards, the trial court’s decision was meticulously reviewed

by the Supreme Court of Alabama. Such attention and effort

put forth by these Courts is entitled to great deference. The due

process issue was not properly preserved, never specifically

briefed or argued on appeal, and was never expressly decided by

either the trial court or the Supreme Court of Alabama.

Respondents agree with Vintage in its brief requesting Peti-

tion For Writ of Certiorari when it states:

Nor does Vintage suggest that it would be wise or proper -

for this Court to draft uniform punitive damages law for

the fifty states. Such an approach would not only violate

the states’ right to establish their own law, but would also

preclude the state-by-state experimentation prized under

our federalist system. (Vintage brief, pages 9-10.) —

Having admitted that it would not be wise for this Court to

become involved in this ‘‘states’ rights’? arena, the petition

should be denied.

Respectfully submitted,

OLIVER AND SIMS

/s/ JOHN PERCY OLIVER

109 Columbus Street

Dadeville, AL 36853

STEVEN F. SCHMITT,

PROFESSIONAL CORPORATION

/s/ STEVEN F. SCHMITT

P.O. Box 606

213 Barnett Boulevard

Tallassee, AL 36078

(205) 283-6855

Attorneys for Respondents

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‘i ; a,» es ae a a r ions ae re 2 yy.

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—— = ~~ re OO Oe =| TT ee a

. —

APPENDIX A

Alabama Rules of Appellate Procedure

RULE 40. APPLICATIONS FOR REHEARING

Tie application for rehearing may be made separately or may

be included at the beginning of applicant’s brief. All applica-

tions for rehearing, and the briefs supporting same, must be fil-

ed with the clerk of the court within 14 days (2 weeks) after the

rendition of the judgment, except that in the case of a pre-trial

appeal by the state in a criminal case, any application for

rehearing, with the supporting brief, must be filed with the clerk

of the court within 7 days (1 week) after the rendition of the

judgment. No party can, as a matter of right, apply for a

rehearing unless a brief was filed with the clerk as provided by

the rules. No brief opposing the application is required, but a

brief from the opposing party may be filed within 14 days (2

weeks)— or, in the case of a pre-trial appeal by the state in a

criminal case, within 7 days (1 week)—after the filing of the

Original appiication and brief. No second application for

rehearing will be considered unless the rehearing reversed or

substantially modified the original opinion of the court.

(Amended effective April 1, 1984.)

7 ee

APPENDIX B

HENDERSON, NORTH CAROLINA DAILY DISPATCH

(August 29, 1989 edition)

OWNER SAYS PARKWAY OPERATING DAY-TO-DAY

No One Laid Off As Company Reorganizes

By AL WHELESS

Daily Dispatch Writer

Parkway Homes, a mobile home manufacturing plant with

125 employees and a $2 million annual payroll in Henderson, is

under the shadow of a Chapter 11 bankruptcy filing.

An administrative official said this morning that any layoffs

at the plant on State Road 1216 are being determined on a day-

by-day basis. There are no plans at this point to lay off anyone,

the official said.

The plant turns out about 500 mobile homes a year with an-

nual sales of about $15 million, according to John M. Beddow,

president and chief executive officer of Vintage Enterprises Inc.

of Atlanta, the parent company of Parkway.

Vintage Enterprises put up Parkway as an asset to meet a

$650,000 appeals bond. Last June, the Alabama Supreme

Court upheld a lower court’s award of $20,000 in actual

damages and $500,000 in punitive damages against Vintage

Enterprises, which also owns a mobile home plant in

Gainesvillé, Ga.

Beddow said this morning that the entire company is affected

by a warranty lawsuit filed in Alabama several years ago by

plaintiffs known as the Jayes. Vintage Enterprises filed for

=_ :

Chapter 11 in a federal court in Alabama and has yet to be ap-

pointed a trustee while the company appeals its case to the U.S.

Supreme Court, according to Beddow.

He said Vintage Enterprises is expected to file a reorganiza-

tional plan with its trustee in the next couple of months. Asked

how he felt about the future of Parkway and its parent company

under Chapter 11, Beddow replied, ‘‘Very good.’’ Parkway

‘thas a long history in Henderson and hopes to continue that

relationship,”’ he said.

The Henderson plant has been in operation for 27 years.

Parkway’s day-to-day operations will depend heavily upon its

customers, suppliers and the local community, Beddow added.

The warranty suit was based on repairs to a mobile home

which the company valued at $1,000 and which the plaintiffs

estimated were worth $3,000, according to Beddow. In

Alabama, he said, there is no limit on punitive damage awards

in civil suits.

He said the Chapter 11 filing provides ‘‘time’’ for Vintage

Enterprises to appeal the judgment, and permits it ‘‘to complete

steps designed to return the company to profitability.”’

Vintage Enterprises hopes the U.S. Supreme Court will

review and reverse the punitive damages award, Beddow said,

but intends to propose a reorganization plan regardless of the

decision by the high court.

‘*We plan to continue both operations,’’ Beddow said. He

estimated that the Henderson plant is worth $1.5 million, and

that Vintage Enterprises has overall annual sales of $30 million.

ee Se ee

APPENDIX C

Alabama Rules of Civil Procedure

RULE 51. INSTRUCTIONS TO JURY: OBJECTION

At the close of the evidence or at such earlier time during the

trial as the court reasonably directs, any party may file and, in

such event, shall serve on all opposing parties written requests

that the court instruct the jury on the law as set forth in the re-

quests. The court shall inform counsel of its proposed action

upon the requests prior to their arguments to the jury, but the

court shall instruct the jury after the arguments are completed.

The judge shall write ‘‘given’’ or ‘‘refused’’ as the case may be,

__on the request which thereby becomes a part of the record.

Those requests marked ‘‘given’’ shall be read to the jury

without reference as to which party filed the request. Neither

the pleadings nor ‘‘given’’ written instructions shall go into the

jury room. Every oral charge shall be taken down by the court

reporter as it is delivered to the jury. The refusal of a requested,

written instruction, although a correct statement of the law,

shall not be cause for reversal on appeal if it appears that the

same rule of law was substantially and fairly given to the jury in

the court’s oral charge or in charges given at the request of the

parties. No party may assign as error the giving or failing to

give a written instruction, or the giving of an erroneous,

misleading, incomplete, or otherwise improper oral charge

unless he objects thereto before the jury retires to cOnsider its

verdict, stating the matter to which he objects and the grounds

of his objection. (emphasis added) Submission of additional ex-

planatory instructions shall not be required unless requested by

the court. Additional instructions shall be submitted in writing,

except that with respect to any additional instruction taken

from Alabama Pattern Jury Instructions, it shall be sufficient to

identify said instruction on the record by reference to the

number and title of said pattern jury instruction. Opportunity

shall be given to make the objection out of the hearing of the

jury. In charging the jury, the judge shall not express his opi-

nion of the evidence. (Amended effective March 1, 1984.)