Petition for Writ of Certiorari — Hines v. Franklin Homes, Inc.

Supreme Ooust, U8.

FILED

96 812 SEP 19 19%,

NO. pes E THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

JUDY HINES,

Petitioner

versus |

FRANKLIN HOMES, INC., et al,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

PETITION FOR WRIT OF CERTIORARI

Re / Lindsey Mussleman Davis

Ce, y HOLT, McKENZIE, HOLT

No Ep & MUSSLEMAN

V2 ry COUNSEL FOR PETITIONER

“Flog 199g 216 Dr. Hicks Blvd., West

"ae te Florence, Alabama 35630

"Ot Lemme (205) 766-0503

CO

i

_———o_—

SS ee ee a a

Whether the state courts violated the

Petitioner's constitutional rights by directing

a verdict in favor of the employer and an

smployee at the close of Petitioner's case

alleging sexual harassment pursuant to 42

J.S.C. 2000(e)?

ii

LIST OF PARTIES

The parties to this proceedings are Judy

Hines, Franklin Homes and Gene Nix.

iii

TABLE OF CONTENTS

Questions Presented .......

Raeree MOMGEOS «¢ 6 ec ee 6 0 és

Tawae Of Authorities ... «+e «-e

OCpameees Below ..<séssecevties

PUN ROEaM 6 6 6 Ge 0 6% © ce

Statutes and Regulations Involved

ae ee ee ee ee

Reasons for Granting the Writ ..

Conclusion . 2 . e « >. * . . + _ .

ET

Page

ooo

iv

TABLE OF AUTHORITIES

Cases Page No.

Beavers v. American Cast Iron Pipe,

975 F.2d at 792 (11th Cir. 1992). ... 20

Big B. Inc. v. Cottinghan,

634 So.2d 999 (Ala. 1993) . ....-«-e 23

Evans v. U.S. Pipe and Foundry Co.,

636 ¥.20 325 (LAER Cit. 1963) c ce ec « « 4

Henson v. City of Dundee, 682

Tuas Ost CLice Gales Beeel « «© © 6 6 8 8 ae

K.S. v. gre: 618 So.2d 707

(Ala. 1993) * . - * + Ld Ld ad * . * * * 23

Longmire v. Alabama State

University, 151 F.R.D.

(M.D. Ala. 1992). . . . ” . o . . * . . 22

Meritor Savings Bank v. Vinson,

4// Vee 57, 65-67 — + e * e . > ~ . 7 20

Potts v. BE & K, 604 So.2d 398

(Ala. 1992) * * . + 7 ° s ° © . 7 . . . 23

Saville v. Houston County

Healthcare Authority, 852 F.Supp.

Leaee SOGE Tiles eke SPOS) « 20 3 6 oe

Sparks v. Pilot Freight

Carriers, Inc., 830 F.2d

sues (aaem Cae. 1967) . « © © 0 wo 6 ee BT

Teague v. Adams, 638 So.2d 836

(Ala. 1994) 7 e . * 2 = » ad + _ = - iz * 24

Statutes, Treatise and Regulations

28 U.8.C. § 1257(3) «« «© « «© «© © « 1

42 U.S.C. 2000(e), et seq ... . 1

Petitioner herein prays that a Writ of

Certiorari issue to review the judgment and

opinion of the Alabama State Supreme Court

entered in this action on June 21, 1996.

OPINIONS BELOW

The Alabama State Supreme Court affirmed

the trial court's decision on 4/19/96, without

opinion. On 6/21/96, Petitioner's Application

for Rehearing was denied without opinion.

BASIS FOR JURISDICTION

The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1257 in that Petitioner

submits that the Appellate Courts have

infringed her rights, privileges and immunities

secured under the Constitution and by certain

statutes, to-wit: 42 U.S.C. 2000(e), et seq.

STATUTES AND REGULATIONS INVOLVED

The statutory provisions involved are 42

U.S.C. 2000(e), et seq.

STATEMENT

In her complaint, Judy Hines alleges

numerous acts of sexual harassment on the part

of Gene Nix. Nix was her Supervisor. On one

occasion when she was first employed in the

2

1970's, Judy Hines went to Nix's home at the

instruction of Otha James, one of her

supervisors, to clean Nix's home. She was

instructed to do this on company time. While

there, Nix forced her to engage in sexual

intercourse with him. She felt this was

necessary to keep her job. She subsequently

left the employment of Franklin Homes, Inc.

In 1990 or 1991, she returned to Franklin

Homes' employment. Nix was no longer employed

there. Six to nine months later, Nix returned

to Franklin Homes, Inc. as plant manager and

her supervisor. The harassment began again.

Although there was no further sexual

intercourse, the harassment was in the nature

of sexual propositions, sexual touching,

threats, sexual inuendo and sexual inguiry.

She reported this to Jerry James, President of

Franklin Homes, Inc. James was to call her

back about the situation and advise her

regarding her conplaint, but he never did. She

reiterated these claims when she filed for

unemployment. Hines later filed a claim with

the EEOC. Nix remained employed at Franklin

3

Homes, Inc. until 1993 (when he voluntarily

went into the hardware business),

Petitioner, Judy Hines, filed suit against

Respondents, Franklin Homes, Inc. (Franklin

Homes) and Cecil Eugene (Gene) Nix, her plant

manager and supervisor, alleging (a) she was

sexually harassed in violation of Title VII;

(b) she was assaulted and battered; and (c)

that her privacy had been invaded while

employed at Franklin Homes.

She had filed a claim with the Equal

Oportunity Commission (EEOC) and had received

her “right to sue" letter. Within 90 days, she

filed suit. Following her presentation of

evidence at trial, the Respondents' Motions for

Directed Verdict were granted. Following

denial of her Motion for New Trial, Judy Hines

appealed the decision.

REASONS FOR GRANTING THE WRIT

Judy Hines, the Plaintiff, testified that

she is a woman of limited education who cannot

read or write. She was first employed by

Franklin Homes in 1977, (T. 14-15). At the

time she came to work, she was recently

4

divorced and was the sole source of support for

her family, (T. 15). Gene Nix was the plant

manager, (T. 15). Her job was to clean up the

trailers before they were shipped out for sale,

(T. 16). This was an hourly job. Gene Nix was

the person who hired her at Franklin Homes, (T.

16). Her supervisor was Otha James, (T. 18).

One morning, Otha James came in and told

Judy Hines that Gene Nix, the plant manager,

wanted his house cleaned, (T. 20). James told

Ms. Hines that she would be called later and

that she was to follow Mr. Nix to the house,

(T. 20). Ms. Hines advised Otha James that she

did not want to ¢c» to Mr. Nix's house. Otha

James advised her that if she did not go, she

would be fired, (T. 20). Consequently, Hines

reluctantly followed Nix to his house, (T. 20).

She did not clock out during the time she went

to Nix's home. Ms. Hines and Gene Nix arrived

at the house, (T. 21). There was no furniture

in the house, (T. 21). Nix's clothing was

scattered about, (T. 21). Nix took two shirts

out of the closet and laid them in the floor of

the bedroom for a pillow. She then had sex

ee

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with Gene Nix, (T. 21). She stated she had sex

with Nix because she felt she would loose her

job if she did not, (T. 22). She had three

children at home to care for, (T. 22). Before

they left the plant, James told Hines not to

clock out, (T. 22).

Upon returning to work, Hines stated she

waS very upset, (T. 22). She told one co-

worker about the incident, (T. 23). For the

rest of her employment at Franklin Homes, she

took measures to avoid ever being alone with

| Nix, (T. 24). She was eventually laid off from

her employment with Franklin Homes by Gene Nix,

(Tt. 24). To her knowledge, she was the only

employee laid off at that time, (T. 24). At no

time after the one incident did she have any

further sexual intercourse with Gene Nix. At

the time she was employed at Franklin Homes,

she had earned about $6.00 per hour, (T. 16).

Judy Hines then went to work for the

Cushion House, (T. 25). Not until the 1990's

did she reapply for employment at Franklin

Homes, (T. 25). before applying, she made

certain that Gene Nix was no longer employed by

aan

6

Franklin Homes, (T. 26). She discussed with

Jerry James, the plant president, that she had

previously worked at Franklin Homes, (T. 27).

She began working for Franklin Homes again on

August 28, 1990, (T. 27). She was hired to

build rafters for the mobile homes. While she

was paid a production. rate, she earned

approximately $4.25 per hour, (T. 28). About

seven to eight months later, Gene Nix returned

to work at Franklin Homes as the plant manager,

(T. 28-29). She was laid off at the time Nix

returned, (T. 31). She was recalled by Gene

Nix personally, (T. 31). Nix told her he would

come to her home and pick her up that day, (T.

31). Ms. Hines advised Mr. Nix she would

report in on her own the next day, (T. 31).

She returned to work the next day, as promised.

She told Nix that she needed help building the

rafters and could not do the job alone, (T.

31). Nix stated that he was going to put her

back to cleaning trailers, (T. 32). With this,

she agreed, (T. 32). In fact, Nix did not put

her back to cleaning trailers, (T. 33). When

she and Nix discussed the fact that she needed

a a en ee ee

.

7

assistance in the building of rafters and that

she felt she deserved a raise, Nix advised her

"you know what you have to do for a raise".

She advised him she did not do things like that

foe e@ raeies, {(f.- 33). Following that, he

continued to “harass her for sex", (T. 33).

She stated that Nix asked her to go to a motel,

to her house and other places to have sex, (T.

33). She continued to complain to Nix about

not getting any assistance in the building the

rafters, (T. 33). All other persons building

rafters had two people performing the job, (T.

33).

Nix's office was above the plant floor in

the middle of the plant, (T. 34). Nix would

come by and sit close to her and watch her

while she did her job, (T. 34). Other times,

he would call her into his office and talk

about his wife having had a hysterectomy and

that his wife no longer wanted to have sex with

‘him, (T. 35). On at least one occasion, Nix

laid his hand on top of Hines, (T. 35). He

made numerous comments and requests that Hines

have sex with him, (T. 35}. She did not

8

initially complain to the president, Jerry

James, but made it clear to Nix, the plant

manager and her supervisor that she did not

want to have sex with him, (T. 35). She

further advised Nix she did not want to have

anything to do with him and he would just laugh

at her. She would advise him that she did not

have to work for sex, (T. 36). She stated that

as time passed, the worse the situation got

with Nix, (T. 36).

In April, 1992, Hines had gotten sick at

work on a Thursday. Employees at Franklin

Homes are paid on Fridays, so she had called

Nix about getting her check and having her son

pick it up, (T. 40). Once again, Hines asked

Nix about a raise. He reiterated that “she

knew" what she had to do to get a raise, (T.

41). Her son picked up her check on Friday

which reflected no raise, (23 41). The

following Monday, Hines called Jerry James, the

president, to tell him she refused to work

under Nix any more and that Nix had continually

harassed her for sex until the day she had

taken off after getting sick at work, (T. 42).

9

She told James that she could no longer work

under Nix because he had "harassed her for

sex". She then related the incident in 1970

which had occurred at Nix's house to James, (T.

43).

James' response was to ask her if she had

Likeag it, (f. 43). Hines responded that she

did not. James then asked her what she wanted

him to do about the situation to which Hines

stated she did not know but she did not want to

work under Nix any longer, (T. 43). James

_ promised to check into the situation and get

back with her, (T. 43). James never did, (T.

44). "Bones" Creel, a salesman for the

) company, had a conversation with Judy Hines in

rr he asked her if she was quitting, (T.

| 45). Hines advised him that she was not going

| to guit that she liked working for Franklin

| Homes, (F. 45). After she learned _ that

Franklin Homes considered her to have quit, she

| filed for unemployment, (T. 46). At the

} unemployment hearing, Nix attended on behalf of

Franklin Homes, (T. 48). During the course of

the hearing while the unemployment officer

10

looked away, Nix reached over her and touched

her leg in the process of trying to get to a

phone in the office, (T. 49). Following the

hearing, Nix accused her of lying, (T. 50).

Within the jurisdictional time limits, Judy

Hines filed the claim with the Equal Employment

Opportunity Commission (EEOC) regarding the

sexual harassment, (T. 50). During the course

of the unemployment hearing, Hines complained

about the sexual harassment which she had

received at Franklin Homes.

On other occasions, Hines described that

Nix had played "footsie" with her in the office

after he had called her into the office under

the guise of discussing other matters with her.

On one occasion, Nix called her into the office

to tell her that his wife had refused to have

sex with him and if Hines would not have sex

with him, did she have any friends who would be

interested in having sex with him, (T. 58).

Anytime the issue of a raise came up, Nix would

reiterate that she knew what she had to do to

get a raise and then suggest that they go to

her house or to a motel, (T. 59).

11

On cross-examination, Hines stated that

she had a sixth grade education although her

employment files stated that she had an

eleventh grade education. She stated she was

too embarassed to admit that she had the sixth

grade education at the time she applied for

employment, (T. 64-65). The EEOC complaint

reflects the last date of harassment to have

been 5/4/92 when she had arguably already left

the employment of Franklin Homes, (T. 75). Ms.

Hines stated that when the papers were sent to

her, she had signed without reading them

because she could not read although she thought

she had told the EEOC the proper date, (T. 83).

She reiterated that she felt going to Nix's

house was part of her job and if she did not go

on that occasion she would have no job when she

returned, (T. 85). She stated that she would

not have returned to work at Franklin Homes in

1990 if Nix had still been employed there, (T.

85). She again described the sexual harassment

which she had endured at Franklin Homes, (T.

94). Again, she described the incident leading

up to her no longer being at Franklin Homes,

12

to-wit: she had gone home sick on a Thursday.

The following day, she called to say that her

son would be picking up her check, (T. 98).

Nix had promised her a raise in the past. She

asked him again about the raise to which he

stated again, "you know what you have to do for

a raise”, (fT. 98). She hung up the phone.

There was no raise in her check, (T. 99). The

following Monday, she called Jerry James and

told him about the sexual harassmen* inlcuding

the incident in the 1970's. She said that she

did not hate Gene Nix just what he had done to

her, (T. 100). She specifically described

several incidents which has occurred during the

time of employment with Franklin Homes which

she stated formed the basis of her lawsuit.

That on one occasion, Nix had put his hands on

top of hers (T. 112); that he had played

footsies with her in the office (T. 113); and

the incident at the unemployment office. She

stated that he had laid his arm in her lap as

he reached over her at the unemployment office,

(T. 116). None of the touching was welcomed,

(Pio: BOO) The touching usually followed

13

discussions about her feeling she should get a

raise, (T. 119).

Following the initiation of the EEOC

complaint, Hines requested a right to sue

letter which she received, (T. 52).

Cecil Eugene (Gene) Nix was the next

witness called. He was called as an adverse

witness, (T. 131). He testified that he now

owned a hardware store, but had previously

worked at Franklin Homes as a plant

superintendent. He had worked in the 1970's,

(T. 132) and had subsequently come back to work

as a plant superintendent on a temporary basis,

(T. 136). He testified that the only person

who was over him in rank was the president/

owner, Jerry James, (T. 133). All 12

department heads were under his’ supervision.

Judy Hines, as an employee, was under him, (T.

133).

He testified that in 1977, Judy Hines

cleaned homes before they were shipped out, (T.

134). He was divorced in 1977, (T. 134). He

denied that Judy Hines had ever gone to his

home or that the incident which she had

14

described had occurred, (T. 135). He testified

he left Franklin Homes in 1981 to go into

private business, (T. 135). He returned again

in 1990 or 1991 as plant superintendent and

Judy Hines was an employee there when he

returned, (T. 136). He specifically denied

that he had ever called Judy Hines and told her

he would pick her up to bring her to Franklin

Homes to work, (T. 138). He had no problem

with the guality of her work although he said

that he had some complaints about her medical

problems with her neck and back, (T. 138). He

denied any sexual conversations with her, (T.

139). He did state, however, she had asked him

out one time when he was married. She had

asked him to a "candlelight dinner", (T. 139). —

He never told anyone about the invitation until

after the suit was filed, (T. 140). He denied ©

that Judy Hines had told him she was sick on

the last day that she had worked at Franklin |

Homes in April, 1992, (T. 141). He denied any

physical contact whatsoever with Judy Hines or

he that had played footsies with her, (T. 142).

He denied any conversations about raises, (T.

15

143). He denied that she had complained about

needing help in building the rafters, (T. 144).

He denied that he had touched her hands by

laying his hand on top of hers, (T. 144). He

had no idea of what Judy Hines had earned when

she worked there. He denied having any

conversation with her regarding her final

paycheck being picked up by Judy Hines, (T.

147). Not until Jerry James told him Judy

Hines planned to sue for sexual harassment,

approximately a week after the last date that

she worked, did he know anything about any

complaint for sexual harassment, (T. 150). He

specifically denied any sexual harassment of

Judy Hines, (T. 152). He stated that he had

never received any adverse action on the part

of Franklin Homes as the result of any sexual

harassment, (T. 152). He did acknowledge that

he had at the unemployment compensation hearing

regarding Judy Hines. He denied ever having

reached over and touching her during the

unemployment hearing. At that time, the tape

of the unemployment hearing which reflected

~

contrary evidence was admitted as Plaintiff's

16

Exhibit "6", (T. 153).

Jerry James next testified, (T. 160). He

testfied that he is the president of Franklin

Homes, (T. 160). He stated that Judy Hines had

called him around April 30, 1992, and told him

that Gene Nix had been sexually harassing her,

(T. 164). Judy Hines told him to think about

what she had said and call her back, (T. 164).

He testified he asked Gene Nix who denied the

allegations, (T. 164). He spoke with a few

other employees, one who worked in the front

office but knew Judy Hines, one who worked near

Judy Hines and another employee and no one

seemed to know anything about any sexual

harassment, (T. 164-166). He gave no credence

to her story so he never called her back, (T.

168). He acknowledged that Franklin Homes has

a sexual harassment policy which "guarantees"

that no sexual harassment will be tolerated.

Despite this, he never contacted Judy Hines

again, (T. 169).

Paul Laudenslager was the next witness

called, (T. 172). He testified that he lives

with Judy Hines, (T. 173). He worked at

17

Franklin Homes setting roofs at one time, (T.

173). From where he worked, he had a clear

view of Judy Hines and other employees. He

frequently saw Gene Nix around Judy Hines, (T.

174). He saw Nix sneeking behind wood bundles

and watching Judy Hines for long periods of

time, (T. 177; 188). He would watch Gene Nix

come up from behind Judy Hines and put his

hands on her and pinch her, (T. 190). In June

or July of 1991, he was in the mill area with

Judy being approximately 30 yards away. He saw

Nix come behind Judy Hines and stand and stare

at her for a long period of time, (T. 192).

When Judy had to work overtime, she would ask

Paul to stay as well, (T. 194). He observed

Gene Nix doing things of a sexual nature with

other employees on one occasion and seen him

pinching a woman employee on the rear end, (T.

197). Gene Nix fired Paul in October, 1991,

(T. 198). Paul acknowledged that he was the

one who had written a letter to the EEOC on

behalf of Judy Hines, (T. 200). Judy had told

Paul that she was planning to sue her employer

for sexual harassment by Gene Nix, (T. 206).

18

He testified that he saw Nix sexually harass

Judy Hines with the way he talked to her and

made lewd remarks to her, (T. 207). He felt

that he had been fired by Gene Nix because he

posed a threat to Gene Nix getting to Judy

Hines, (T. 212).

Elaine Calvert testified that she had

worked for Franklin Homes in 1977 as a clean-up

person, (T. 218). She knew of the occasion

when Judy Hines had gone to Gene Nix's house to

clean it, (f. 221). She observed that she

thought Judy Hines had been drinking when she

returned from Nix's home that time, (T. 222).

Judy Hines told her what had happened at Nix's

house that day, (T. 223).

Wayne Hines, Judy Hines' son, testified

that he worked at Franklin Homes when Judy did

in the 1990's, (T. 226-227). At this time, the

court sustained the Defendant's objection and

effectively denied Wayne Hines the opportunity

to testify for purposes of impeachment that he

had seen Gene Nix have sexual encounters with

other female employees when Nix had testified

on direct examination that such events had not

19

occurred, (T. 227-230). The substance of

Hines' testimony was made through an offer of

proof by Plaintiff on the record, (T. 227-231).

Larry Oswalt next testified, (T. 231). He

testified that he presently worked at Franklin

Homes although when he wrote a letter to the

EEOC on behalf of Judy Hines, he was working at

Golden Poultry, (T. 231). He built rafters at

Franklin Homes. He had observed Judy Hines

stressed and upset at the job, (T. 234). The

court denied the Plaintiff's offer of the

letter which he had written to the EEOC which

was offered for purposes of refreshing his

recollection, (T. 234; 244). He testified that

he had told Jerry James after Judy Hines no

longer worked at Franklin Homes that Gene Nix

would come around and talk to Judy Hines as

well as other employees, (T. 241). He observed

Judy crying on the job, (T. 252).

With this, the Plaintiff rested, (T. 252).

At that time, the Defendants made a motion for

directed verdict which was followed by

argument, (T. 253-266). The court then granted

the Defendants' motion, (T. 267). Timely

saa a i)

20

notice of appeal then followed. Following the

denial on the motion for new trial, Plaintiff

gave notice of appeal, (T. 448-449; 451; 452-

453).

The facts as herein set forth clearly

establish a prima facie case of sexual

harassment under Title VII assault and battery

and invasion of privacy for which a directed

verdict should never have been granted.

Sexual harassment in the workplace is a

prohibited form of sex discrimination, Meritor

Savings Bank v. Vinson, 477 U.S. 57, 65-67. It

is sufficient to show timeliness if the

Plaintiff can show that the workplace remained

hostile during some portion of the 180 day

limitation period preceding filing with the

EEOC, Beavers v. American Cast Iron Pipe, 975

F.2d at 792 (11th Cir. 1992). The scope of the

allegations in Title VII complaints may be much

broader than the allegations in the

administrative charge. The allegations "may

encompass any kind of discrimination like or

related to allegations", Evans v. U.S. Pipe and

Foundry Co., 696 F.2d 925 (llth Cir. 1983).

21

There are two types of sexual harassment.

Quid pro gquo or what might be termed as

physical or tangible sexual harassment is best

explained in the supervisor/subordinate

setting. The employee is forced to yield to

the sexual demand or suffer such adverse

consequences, The employer is absolutely

liable for guid pro quo harassment by a

supervisor who has supervisory authority over

the harassed individual, Sparks v. Pilot

Freight Carriers, Inc., 830 F.2d 1554 (11th

Cir. 1987). This means the employer should be

liable even if he did not know of or approve of

the supervisor's actions. Where a supervisor

is acting within the line and scope of his

authority to hire, fire, promote, etc. to

extort sexual favors from an employee, the

employer should be held strictly liable for the

conduct, Sparks v. Pilot Freight Carriers, 830

F.2d 1554 (llth Cir. 1987). The mere fact that

an employer has a policy prohibiting sexual

harassment cannot insulate an employer in guid

pro quo cases, particularly where the

complainant must report any grievances to her

On

22

supervisor, the alleged offender, to invoke

internal procedures, Meritor at 72-73.

Evidence of sexual advances made to other

employees may be admitted on the issue of

motive, intent or plan in making the sexual

advances towards the plaintiff, Longmire v.

Alabama State University, 151 F.R.D. (M.D. Ala.

1992).

Hostile work environment is the most

recently recognized form of sexual harassment,

Meritor. Meritor accepted the theory that

sexual harassment could be based on the work

environment itself rather than just the

"economic" or "tangible" loss of benefits.

There are five basic elements to this form

of harassment, Henson v. City of Dundee, 682

F.2d 897 (llth Cir. 1983). The person must be

(a) a member of ae protected class; (b)

subjected to unwelcome sexual conduct (e.g.

foul language, dirty jokes, suggestive

comments); (c) harassed upon the basis of sex

and (d) effective as to a term, condition or

privilege of employment. The final element

requires either that the harasser was working

23

in a supervisory capacity or the employer knew

of the conduct.

Sexual harassment of this type is a

continuous violation, it is not the "present

consequences" of a discreet act, Saville v.

Houston County Healthcare Authority, 852

F.Supp. 1512, 1522 (M.D. Ala. 1994).

An employer is liable for a supervisor's

actions in a hositle environment case if

"apparent authority" under an agency theory is

also present, Saville.

A complaint of sexual harassment may also

have claims for assault and battery, invasion

of privacy and/or tort of outrage, Quillen.

Likewise the employer may be liable for its own

acts, Big B. Inc. v. Cottingham, 634 So.2d 999

(Ala. 1993); Potts v. BE & K, 604 So.2d 398

(Ala. 1992).

When the court grants a directed verdict,

there is no presumption of correctness, K.S. v.

Carr, 618 So.2d 707 (Ala. 1993). In reviewing

the granting of a directed verdict, the court

must view all of the evidence in a light most

favorable to the non-movant, and must entertain

24

reasonable evidentiary inferences that the jury

would be free to draw, Teague v. Adams, 638

So.2d 836 (Ala. 1994).

It is apparent that the Petitioner Judy

Hines made out a prima facie case of all of the

claims alleged. Numerous guestions of fact

remained for the trier of fact, thus precluding

a grant of directed verdict as to any issues

raised in Appellee’ motions. Thus, Petitioner,

Judy Hines, moves the Court to grant her

Petition for Writ of Certiorari.

2 Maha Ls atin eT ia Sal A NL CPM wise on th a RS

25

CONCLUSION

The evidence and testimony set forth by

the Petitioner at trial clearly make out a

prima facie case for the wrongs alleged in her

Complaint. To summarily dismiss them at the

close of the evidence was clear error under

applicable law and procedure and violative of

her constitutionally protected rights.

Petitioner respectfully requests this Court to

remedy the error through grant of her Petition

for Writ of Certiorari.

Respectfully submitted,

HOLT, MCKENZIE, HOLT &

MUSSLEMAN

216 Dr. Hicks Blvd., West

Florence, Alabama 35630

App. 1

RELEASED APRIL 19, 1996

CLERK

SUPREME COURT OF ALABAMA ~

STATE OF ALABAMA--JUDICIAL DEPARTMENT

THE SUPREME COURT

OCTOBER TERM, 1995-96

1941797

Judy Hines v. Franklin Homes, Inc., and Gene

Nix; appeal from Franklin Circuit Court, CV-94-

167.

BUTTS, JUSTICE

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(f£),

Ala.R.App.P.; and Mardis v. Robbins Tire 4&

Rubber Co., [Ms. 1931474, November 3, 1995]

So.2d (Ala. 1995).

Hooper, C. J., and Almon, Houston, and

Ingram, JJ. concur.

App. 2

IN THE SUPREME COURT OF ALABAMA

June 21, 1996

1941797

Judy Hines v. Franklin Homes, Inc., and Gene

Nix. (Franklin: CV-94-167)

—— re

The application for rehearing filed in

this cause is overruled. No opinion written on

rehearing.

BUTTS, J. - Hooper, CJ., Almon, Houston

and Ingram, JJ., concur.

I, Robert G. Esdale, as Clerk

of the Supreme Court of

Alabama, do hereby’ certify

that the foregoing is a full,

true and correct copy of the

instrument(s) herewith set out

as same appear/{s) of record in

said Court.

Witness my hand this 2lst day

of June, 1996.

/s/ Robert G. Esdale

Clerk, Supreme Court of

Alabama