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4211551f-5b78-4282-b4f2-8b7001570f15

Ex Parte Bailey

778 So. 2d 163

1980838

Alabama

Alabama Supreme Court

778 So. 2d 163 (2000) Ex parte Marcus BAILEY. (Re Marcus Bailey v. State). 1980838. Supreme Court of Alabama. June 30, 2000. *164 Kimberly J. Dobbs-Ramey, Decatur, for petitioner. Bill Pryor, atty. gen., and G. Ward Beeson III, asst. atty. gen., for respondent. JOHNSTONE, Justice. We granted Marcus Bailey's petition for a writ of certiorari to determine whether the Court of Criminal Appeals erred in affirming the ruling of the trial court that a notice of appeal mooted Bailey's motion, in effect, for the trial court to correct a Rule 29, Ala. R.Crim. P., "error arising from oversight or omission" in its written sentencing order. We reverse and remand. Pursuant to a plea agreement, Marcus Bailey pleaded guilty to two counts of unlawful distribution of marijuana in violation of § 13A-12-211, Ala.Code 1975. On June 9, 1998, the trial court sentenced Bailey to 15 years' imprisonment on each count and enhanced his sentence on each count by 10 years' imprisonment because the sales occurred within three miles of a schoolyard (for a five-year enhancement), § 13A-12-250, and within three miles of a public housing project (for another five-year enhancement), § 13A-12-270for a total of 25 years' imprisonment on each count. The trial court ordered that the two 25-year sentences run concurrently with each other and with a 25-year sentence Bailey was serving for an attempted-murder conviction. On July 20, 1998, 41 days after the trial court sentenced Bailey, defense counsel filed a "Motion to Set Aside Plea or in the Alternative to Clarify the Court's Order so that the Department of Corrections Can Properly Reflect it on the Defendant's `Time Sheet'" (hereinafter referred to as the "motion to set aside plea or to clarify order"). In this motion, defense counsel alleged that the Department of Corrections (DOC) interpreted the trial court's written sentencing order improperly to read that each of the two 10-year enhancements was to run consecutively with each other as well as consecutively with the two concurrent 15-year sentences. On the same day that defense counsel filed the "motion to set aside plea or to clarify order," Bailey filed a pro se notice of appeal. Thus, the trial court dismissed the "motion to set aside plea or to clarify order" as "moot." Upon Bailey's appeal, the Court of Criminal Appeals held, in an unpublished memorandum, that, because defense counsel filed the "motion to set aside plea or to clarify order" more than 30 days after the date of sentencing, the trial court did not have jurisdiction to consider the motion. Bailey v. State, (No. CR-97-2171), 744 So. 2d 965 (Ala.Crim. App.1998) (table). The Court of Criminal Appeals reasoned that Bailey's motion was comparable to a motion for new trial, which must be filed within the 30-day-after-sentence jurisdictional time limit imposed by Rule 24.1(b), Ala. R.Crim. P. We granted Bailey's petition for a writ of certiorari to determine whether the Court of Criminal Appeals erred in addressing only the portion of Bailey's motion seeking to set aside his guilty plea and ignoring the portion of his motion seeking, in the alternative, to clarify the sentencing order. At the sentencing hearing, the trial court orally sentenced Bailey as follows: (R. 14.) Thereafter, the trial court issued a written sentencing order stating: (C.R. 25-26.) DOC interpreted this sentencing order to mean that Bailey serves his two 15-year sentences concurrently and serves his two 10-year enhancements consecutively with each other after his two concurrent 15-year sentences, for a total of 35 years' imprisonment. The State contends that DOC's interpretation of the sentencing order is correct because "under the plea agreement, each of the four 5-year enhancements would run consecutively." However, there is no written plea agreement to support the State's contention. In fact, the transcript of the guilty plea proceedings refutes the State's contention. Indeed, during the guilty plea proceedings, the prosecutor stated: (R. 3-4.) Therefore, the record proves that the parties and the trial court intended for Bailey to receive a 25-year sentence for each conviction and for his sentences for each count to run concurrently. Although the trial court's oral sentence clearly reflects the sentence the trial court intended to impose, the portion of the trial court's written sentencing order stating, "the defendant is sentenced to 15 years in the State Penitentiary of Alabama on each conviction to run concurrent plus each of the 10-year enhancements shown below to run consecutive," is not as clear. Rule 29, Ala. R.Crim. P., provides: (Emphasis added.) A trial court may correct a judgment or order in a manner to speak the truth only, not to change what the trial court originally intended and pronounced. See H. Maddox, Alabama Rules of Criminal Procedure, § 29.1, p. 888 (3d ed.1999). The Committee Comments to Rule 29 state that, because no time limitations restrict a trial court in making such corrections, the trial court may make such corrections just as the rule states: "[d]uring *166 the pendency of an appeal or thereafter." The Committee Comments state further that Rule 29 is taken directly from Rule 60(b), Ala. R. Civ. P. Therefore, civil cases involving Rule 60(b) are persuasive in construing the scope of Rule 29. For instance, in Continental Oil Co. v. Williams, 370 So. 2d 953, 954-55 (Ala. 1979), this Court stated: (Emphasis in original.) (Citations omitted.) Applying the rationale of Continental in Ex parte Dollar, 687 So. 2d 209 (Ala. 1996), this Court held that a trial court could amend a restitution order 45 days after issuance to include restitution to be paid to a party whom the trial court omitted in its original restitution order. In a factually similar criminal case, the Court of Criminal Appeals held that, pursuant to Rule 29, the trial court could amend its written sentencing order to reflect its oral sentence that the defendant's 40-year sentences for his convictions for sexual abuse in the first degree and attempted kidnapping in the second degree run concurrently rather than consecutively as the written sentencing order stated. Carson v. State, 716 So. 2d 247, 248 (Ala. Crim.App.1998). Likewise, the trial court in this case had the authority, at any time, even after 30 days following the date of sentencing, to clarify its written sentencing order to show that Bailey is to serve 15 years' imprisonment plus an additional 10 years, pursuant to the schoolyard and public housing enhancement statutes, for each conviction, and that his sentences for the two convictions are to run concurrentlyfor a total of 25 years' imprisonment. Consequently, the judgment of the Court of Criminal Appeals is reversed and this cause is remanded for that court to permit the trial court to clarify its written sentencing order consistently with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, and ENGLAND, JJ., concur. BROWN, J., recuses herself.[*] [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

June 30, 2000

82dd2ff9-555e-4c28-a548-03fac7411a9a

Ex Parte JJD

778 So. 2d 240

1982065

Alabama

Alabama Supreme Court

778 So. 2d 240 (2000) Ex parte J.J.D., Jr. (Re J.J.D., Jr. v. State). 1982065. Supreme Court of Alabama. June 16, 2000. *241 James M. Byrd, Mobile, for petitioner. Bill Pryor, atty. gen., and P. David Bjurberg, asst. atty. gen., for respondent. PER CURIAM. J.J.D., Jr. ("J.J.D."), appealed from the Mobile Circuit Court's order revoking his probation. The Court of Criminal Appeals affirmed, by an unpublished memorandum, but with a dissenting opinion. J.J.D. v. State, 778 So. 2d 239 (Ala.Crim.App.1999). We granted J.J.D.'s petition for certiorari review. Because the circuit court erred in revoking J.J.D.'s probation, we reverse and remand. In January 1999, Deputy James Mayo stopped J.J.D., who was on probation at the time, for a driving violation. J.J.D. had two passengers in the automobile at the time. Mayo searched J.J.D. and both passengers. On the female passenger, Mayo found a cigarette box containing two rock-like substances, which he thought were crack cocaine. When Mayo arrested the female passenger, she told him that the male passenger had narcotics in his shoe. A search of the shoe revealed "a crack pipe with the packing that's normally used for crack pipes to be smoked for crack-cocaine purposes." (R. at 5.) Mayo arrested the male passenger. Mayo then searched the rest of the car, and found a leafy substance he believed was marijuana. Mayo arrested J.J.D. for possession of marijuana. J.J.D.'s probation officer filed a report to revoke his probation; the report stated that J.J.D. had violated his probation by being arrested for two counts of receiving stolen property,[1] by being arrested for possession of marijuana, and by "associat[ing] with a person who has a criminal record." The evidence presented at trial established (1) that the State nol-prossed the charges of receiving stolen property because the complaining witness failed to appear in court; (2) that J.J.D. was found not guilty of possession of marijuana, because the leafy substance seized from his car was not marijuana; and (3) that the male passenger in J.J.D.'s car had a criminal record and was on probation at the time of the arrests. The circuit court followed the probation officer's recommendation and revoked J.J.D.'s probation. J.J.D. appealed, arguing that the circuit court erred in revoking his probation because, he argued, the State failed to present sufficient evidence for a finding that he had violated the terms of his probation. Specifically, J.J.D. argued that the State needed to present evidence indicating that he knew that the male passenger had a criminal record. The Court of Criminal Appeals affirmed the circuit court's judgment, by an unpublished memorandum, holding that the State did not need to present direct evidence indicating that J.J.D. had knowledge of the male passenger's criminal record. The Court of Criminal Appeals concluded that because the State presented evidence indicating that the male passenger had a criminal record and because the police had removed controlled substances and drug paraphernalia from the passengers, "the trial court could clearly infer that [J.J.D.] was aware that *242 he was associating with `persons or places of disreputable or harmful character' and `associating with a person who has a criminal record.'" J.J.D. argues that the Court of Criminal Appeals erred in concluding that the circuit court properly revoked his probation on the ground of "associating with a person who has a criminal record."[2] Specifically, J.J.D. argues that the State failed to present sufficient evidence to support a finding that he was aware of the male passenger's criminal record. The Court of Criminal Appeals has stated, in explaining the evidentiary standard applicable in a probation-revocation case: Martin v. State, 46 Ala.App. 310, 312, 241 So. 2d 339, 341 (Ala.Crim.App.1970) (quoting State v. Duncan, 270 N.C. 241, 154 S.E.2d 53 (1967) (citation omitted)). Under that standard, the trial court need "only be reasonably satisfied from the evidence that the probationer has violated the conditions of his probation." Armstrong v. State, 294 Ala. 100, 103, 312 So. 2d 620, 623 (1975). Absent a clear abuse of discretion, a reviewing court will not disturb the trial court's conclusions. See Moore v. State, 432 So. 2d 552, 553 (Ala.Crim.App.1983), and Wright v. State, 349 So. 2d 124, 125 (Ala.Crim.App.1977). The State, relying on Lindsey v. State, 768 So. 2d 408 (Ala.Crim.App.1998), argues that it should not be required to establish that a defendant has "knowingly" violated a condition of his probation. In Lindsey, the Court of Criminal Appeals held that evidence that marijuana was discovered in a closet in the probationer's residence was sufficient, in a probation-revocation proceeding, to support a finding that the probationer had constructively possessed the marijuana, even though he did not have exclusive control over the closet. The State's reliance on Lindsey, however, is misplaced. The Court of Criminal Appeals did not hold in Lindsey that a defendant's unknowing violation of probation conditions would support a revocation of the defendant's probation. Rather, the Court of Criminal Appeals held that because the burden of proof is significantly lower in a probation-revocation proceeding than in a criminal trial, the State's circumstantial evidence was sufficient to support a finding that the defendant had had knowledge of the marijuana in the closet. See id.; Sims v. State, 733 So. 2d 926 (Ala.Crim. App.1998) (holding that knowledge of the presence of a controlled substance is an essential element of constructive possession of that substance). While the discovery of marijuana in a location under the nonexclusive control of a defendant is sufficient to support the revocation of a defendant's *243 probation, the discovery of a defendant in the company of someone with a criminal record is insufficient by itself to support a finding that the defendant violated the terms of his probation. The Court of Appeals of Oregon explained, while interpreting a virtually identical probation condition: State v. Allen, 12 Or.App. 455, 457-58, 506 P.2d 528, 529 (1973); accord Phelps v. State, 638 S.W.2d 23, 24 (Tex.App.1982) ("[E]ven if an associate is shown to be disreputable, the State must also show that the probationer knew of the disreputable and harmful character of such a person."). The Court of Criminal Appeals correctly noted that the State was not required to present direct evidence indicating that J.J.D. knew of the male passenger's criminal record. Cf. McLaney v. City of Montgomery, 570 So. 2d 881, 882 (Ala.Crim.App.1990) (holding that circumstantial evidence can be used to establish that a defendant was in the actual physical control of a vehicle); Williams v. State, 665 So. 2d 955, 956 (Ala.Crim.App.1994) (holding that circumstantial evidence can be used to establish an agreement and intent); Marcus v. State, 568 So. 2d 342, 345 (Ala.Crim.App.1990) (holding that circumstantial evidence can be used to establish the corpus delicti). However, if the State uses circumstantial evidence to establish that a probationer has violated a condition of his probation, the evidence must be such as to allow the trial court to reasonably infer that the violation occurred. See generally MacEwan v. State, 701 So. 2d 66, 70-71 (Ala.Crim.App.1997) ("[C]ircumstantial evidence may form the proof of the corpus delicti; if facts are presented from which a jury may draw a reasonable inference that a crime has been committed, the case must be submitted to the jury."). In this case, the Court of Criminal Appeals, relying on Walker v. State, 552 So. 2d 906, 907 (Ala.Crim.App.1989) ("The [probationer's] unexplained possession of recently stolen property creates a rebuttable presumption that the [probationer] had knowledge that the property was stolen."), concluded that the State presented evidence sufficient for the trial court to infer that J.J.D. "was aware that he was ... `associating with a person who has a criminal record.'"[3] We disagree. The evidence presented by the State indicates only that J.J.D. was in a car with a person who had a criminal record. This fact is insufficient to allow the trial court to reasonably infer that J.J.D. knew, or had reason to know, that the male passenger had a criminal record. See Prince v. *244 State, 477 S.W.2d 542, 543 (Tex.Crim.App. 1972) (holding that substantially similar evidence was insufficient to show that a probationer had knowledge of the disreputable and harmful character of the persons with whom he was riding). Therefore, the circuit court erred in finding that J.J.D. had violated the terms of his probation by associating with a person with a criminal record. We reverse the judgment of the Court of Criminal Appeals and remand the case for that court to remand it for further proceedings in the circuit court consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] The receiving-stolen-property charges were not related to the traffic violation. [2] We note that the circuit court also based its revocation of J.J.D.'s probation on his arrests for possession of marijuana and for receiving stolen property. However, the State apparently concedes that neither of those arrests supports the revocation. As the State admitted below, its own laboratory results established that the leafy substance seized from J.J.D.'s car was not marijuana or any other controlled substance. Moreover, although the fact that the State nol-prossed the receiving-stolen-property charge does not bar it from seeking to revoke J.J.D.'s probation on that ground, the only evidence presented by the State in support of the allegation that J.J.D. had received stolen property was hearsay testimony about the contents of the offense report related to that charge. Accordingly, we conclude that the State did not present sufficient evidence to support a finding that J.J.D. received stolen property. See Cornelius v. State, 733 So. 2d 917, 918 (Ala. Crim.App.1998) ("It is well settled that hearsay evidence cannot form the sole basis for revoking probation."). [3] We note that the Court of Criminal Appeals also concluded that the trial court could infer that J.J.D. was aware that he was "associating with `persons or places of disreputable or harmful character.'" However, the trial court did not revoke J.J.D.'s probation on that ground. In fact, the trial court could not have properly revoked J.J.D.'s probation on that ground because the report alleged only that J.J.D. had violated the terms of his probation by "associating with a person who has a criminal record." See Hollins v. State, 737 So. 2d 1056, 1057 (Ala.Crim.App.1998) ("The minimal due process to be accorded a probationer before his probation can be revoked includes written notice of the claimed violations of probation...."); Rule 27.5(a)(1), Ala. R.Crim. P. (requiring that a probationer be informed of the "alleged violation" and be furnished "with a written copy thereof").

June 16, 2000

9de00bc1-1a39-47b6-9d18-0f38489289ac

Ex Parte Blue Cross and Blue Shield

773 So. 2d 475

1980260

Alabama

Alabama Supreme Court

773 So. 2d 475 (2000) Ex parte BLUE CROSS AND BLUE SHIELD OF ALABAMA. (Re Winston Guthrie, D.M.D. v. Blue Cross and Blue Shield of Alabama). 1980260. Supreme Court of Alabama. June 9, 2000. *477 Cavender C. Kimble and Tom S. Roper of Balch & Bingham, L.L.P., Birmingham, for petitioner. Robert R. Riley, Jr., and Keith Jackson, Birmingham, for respondent. JOHNSTONE, Justice. The petitioner-plaintiff, Winston Guthrie, D.M.D., sued Blue Cross and Blue Shield of Alabama for defamation, malicious defamation, and tortious interference with contractual relations. The trial court entered summary judgment in favor of Blue Cross on all three claims. On Dr. Guthrie's appeal, the Court of Civil Appeals reversed the summary judgment and remanded. Guthrie v. Blue Cross & Blue Shield of Alabama, 773 So. 2d 471 (Ala.Civ. App.1998). On certiorari review pursuant to the petition of Blue Cross, we reverse the judgment of the Court of Civil Appeals and render a judgment for the defendant Blue Cross. While the opinion issued by the Court of Civil Appeals presents the facts in detail, the operative facts material to Dr. Guthrie's defamation claim are, in essence, simply that Blue Cross wrote a letter to each of two of its own insureds and Dr. Guthrie's patients, Reasoner and Cantrell, explaining to the particular patient that Blue Cross was denying payment for certain procedures performed on the patient on the ground that the procedures were outside the scope of Dr. Guthrie's license as a dentist; and that Blue Cross wrote each of those letters in response to a letter from that particular insured patient asking why Blue Cross had denied payment. After Dr. Guthrie sued Blue Cross on the theory that each of these two letters defamed him, Blue Cross moved for summary judgment on the ground of qualified privilege that is, the defense that the qualified privilege of Blue Cross to write each letter prevented the letters from being actionable. Over the last 150 years some confused and anomalous language has developed in our cases on defamation and conditional privilege. We will clarify and restate the law. At the outset we note that some cases refer to conditional privilege, see, e.g., Tidwell v. Winn-Dixie, Inc., 502 So. 2d 747 (Ala.1987), and Webster v. Byrd, 494 So. 2d 31, 36 (Ala.1986), and others refer to qualified privilege, see, e.g., Mead Corp. v. Hicks, 448 So. 2d 308 (Ala.1983), and Ripps v. Herrington, 241 Ala. 209, 1 So. 2d 899 (1941). Indeed the two terms have been used interchangeably. Gore v. Health-Tex, Inc., 567 So. 2d 1307 (Ala. 1990); Barnett v. Mobile County Personnel Bd., 536 So. 2d 46, 53 (1988); Browning v. Birmingham News, 348 So. 2d 455, 458 (Ala.1977); Willis v. Demopolis Nursing Home, Inc., 336 So. 2d 1117 (Ala.1976); Smith Bros. & Co. v. W.C. Agee & Co., 178 Ala. 627, 59 So. 647 (1912). However, we will henceforth use the term qualified privilege, because, as we discuss and hold, *478 the defense is not subject to any condition but is simply subject to the qualification, or limitation, that it suffices against only claims for innocent or mistaken defamation and not against claims for defamation committed with actual malice. Language in some cases implies that good faith and the absence of actual malice are essential elements of the defense of qualified privilege. Clark v. America's First Credit Union, 585 So. 2d 1367, 1370 (Ala.1991); Gore, 567 So. 2d at 1308; Atkins Ford Sales, Inc. v. Royster, 560 So. 2d 197, 200 (Ala.1990); Reynolds Metals Co. v. Mays, 547 So. 2d 518, 524 (Ala.1989); Nelson v. Lapeyrouse Grain Corp., 534 So. 2d 1085, 1094 (Ala.1988); Kirby v. Williamson Oil Co., 510 So. 2d 176, 179 (Ala. 1987); Tidwell, 502 So. 2d at 748; WKRGTV, Inc. v. Wiley, 495 So. 2d 617, 619 (Ala. 1986); Webster, 494 So. 2d at 36; Montgomery v. Big B, Inc., 460 So. 2d 1286, 1288 (Ala.1984); Mead Corp., 448 So. 2d at 312; Fulton v. Advertiser Co., 388 So. 2d 533, 537 (Ala.1980); Browning, 348 So. 2d at 458; Willis, 336 So. 2d at 1120; Berry v. City of New York Ins. Co., 210 Ala. 369, 371, 98 So. 290 (1923). Other cases hold or imply that bad faith and actual malice are essential elements of the only variety of defamation that will prevail over a defense of qualified privilege. Barnett, 536 So. 2d at 53, and Nelson, 534 So. 2d at 1095. The significance of this conflict is that the burden of proof on faith (good or bad) and the absence or existence of actual malice would seem to be upon the party whose position includes them as essential elements, for generally a plaintiff bears the burden of proving the essential elements of his claims, King v. Aird, 251 Ala. 613, 38 So. 2d 883 (1949), United States Cast Iron Pipe & Foundry Co. v. Williams, 213 Ala. 115, 104 So. 28 (1925), and Metropolitan Life Ins. Co. v. Brown, 27 Ala.App. 602, 177 So. 178 (1937), and the defendant bears the burden of proving the essential elements of his affirmative defenses, Aird, supra, Horton v. Spears, 238 Ala. 464, 191 So. 622 (1939), United States Cast Iron Pipe & Foundry Co. v. Williams, 213 Ala. 115, 104 So. 28 (1925), and APJI 8.01 (2d ed.1993). One case even holds that, while the defendant asserting qualified privilege must plead the absence of actual malice, the plaintiff bears the burden of proving the existence of actual malice. Kenney v. Gurley, 208 Ala. 623, 95 So. 34 (1923). Our first clarification prompted by these cases is that the matters of faith and actual malice are not two separate essential elements. Rather, the term good faith was intended as the opposite of the term actual malice. The term in good faith means the same as the term without actual malice. Smith Bros., supra. Whenever these two terms are used conjunctively, one is redundant. Likewise the term in bad faith means the same as the term with actual malice. Barnett and Nelson, supra. Whenever these two terms are used conjunctively, one is redundant. Our next clarification and restatement is that the plaintiff must plead defamation with actual malice and bears the burden of proving defamation with actual malice to prevail against a defense of qualified privilege, Fulton, Browning, Willis, and Kenney, supra. See also O'Barr v. Feist, 292 Ala. 440, 296 So. 2d 152 (1974); and the defendant need not plead good faith (the absence of actual malice) and does not bear the burden of proving good faith to establish the defense of qualified privilege. To the extent that Kenney, supra, requires the defendant to plead the absence of actual malice, it is overruled. Rather, to establish this affirmative defense, the defendant need only plead and prove the elements as stated in the following authorities. Easley v. Moss, 9 Ala. 266, 268 (1846). Berry v. City of New York Ins. Co., 210 Ala. 369, 371, 98 So. 290 (1923). See also Clark v. America's First Credit Union, 585 So. 2d 1367, 1370 (Ala.1991); Gore v. Health-Tex, Inc., 567 So. 2d 1307, 1308 (Ala.1990); Atkins Ford Sales, Inc. v. Royster, 560 So. 2d 197, 200 (Ala.1990); Reynolds Metals Co. v. Mays, 547 So. 2d 518, 524 (Ala.1989); Nelson v. Lapeyrouse Grain Corp., 534 So. 2d 1085 at 1094 (Ala. 1988); Kirby v. Williamson Oil Co., 510 So. 2d 176, 179 (Ala.1987); Tidwell v. Winn-Dixie, Inc., 502 So. 2d 747, 748 (Ala. 1987); WKRG-TV, Inc. v. Wiley, 495 So. 2d 617, 619 (Ala.1986); Webster v. Byrd, 494 So. 2d 31, 36 (Ala.1986); Montgomery v. Big B, Inc., 460 So. 2d 1286, 1288 (Ala.1984); Mead Corp. v. Hicks, 448 So. 2d 308, 312 (Ala.1983); Fulton v. Advertiser Co., 388 So. 2d 533, 537 (Ala.1980); Browning v. Birmingham News, 348 So. 2d 455, 458 (Ala.1977); Willis v. Demopolis Nursing Home, Inc., 336 So. 2d 1117, 1120 (Ala. 1976). APJI 23.12 (2d ed.1993). Some references to good faith and, alternatively, to the absence of actual malice on the part of the defendant have been eliminated from these quotations purposely in order to leave only the elements to be pleaded and proved by the defendant asserting the affirmative defense of qualified privilege. The affirmative defense of qualified privilege so pleaded and proved will defeat a claim of innocent or mistaken defamation, because this defense negates the malice implied by the mere falsity of a defamatory statement. Lawson v. Hicks, 38 Ala. 279, 285 (1862), and APJI 23.12, supra. The only variety of defamation not subject to the defense of qualified privilege is defamation committed with actual malice (as distinguished from implied malice). See, e.g., Easley and APJI 23.12, supra. A plaintiff cannot prevail against an established defense of qualified privilege unless he has pleaded and proved defamation committed with actual malice. Fulton, Browning, Willis, O'Barr, and Kenney, supra. In the case presently before us, we will assume, for the purpose of analysis only, that the letters by Blue Cross to its insureds, Dr. Guthrie's patients, Reasoner and Cantrell, are defamatory. The writing and delivery of the letters nonetheless meets each of two independently sufficient criteria for qualified privilege. The record establishes explicitly and implicitly that Blue Cross owed each of its insureds an explanation for the denial of payment for the particular procedures and, likewise, that Blue Cross had an interest in the explanations and each of its insureds had a corresponding interest. Thus the qualified-privilege defense asserted by Blue Cross in its motion for summary judgment is factually established. As we have explained, qualified privilege is a complete defense to all defamation except that committed with actual malice. The record does not contain substantial evidence that Blue Cross wrote and delivered the letters with actual malice. Therefore, summary judgment in favor of Blue Cross on the defamation claims was not erroneous. We will now address Dr. Guthrie's claims against Blue Cross for intentional *480 interference with his contractual relations with Reasoner and Cantrell. Dr. Guthrie claimed that the same letters that grounded his defamation claims further constituted tortious interference in his dentist-patient contractual relations with Reasoner and Cantrell. Before Blue Cross wrote the letters to Reasoner and Cantrell, however, Dr. Guthrie had written Blue Cross a letter which stated, in pertinent part: (Emphasis in original.) Dr. Guthrie admitted in his deposition that, before he wrote this letter, he had established a practice of informing his patients that "you need to be aware that Blue Cross, I believe wrongfully, but nevertheless that Blue Cross has taken the position that these services may not be covered because they are outside the scope of dental practice." For two independently sufficient reasons, Dr. Guthrie's claims of tortious interference were subject to the summary judgment entered by the trial court. First, Dr. Guthrie can hardly claim that, after he invited Blue Cross to write the letters to his patients, Blue Cross interfered by writing the letters to his patients. The essential elements of a tort include a breach of a duty imposed by law. If, arguendo only, Blue Cross ever owed Dr. Guthrie a duty not to write the letters, that duty was excused by Dr. Guthrie's inviting Blue Cross to write the letters. Second, while Dr. Guthrie charged Blue Cross with interfering with his contractual relations with his patients Reasoner and Cantrell, Blue Cross was, itself, a party to these same contractual relations. The record establishes both explicitly and implicitly that Dr. Guthrie and his patients contracted together in reliance on the contractual obligation of Blue Cross to pay for dental services covered by the policy between Blue Cross and the patients. Interdependent contractual relations existed among Dr. Guthrie, his patients, and Blue Cross. This contractual situation invokes the rule that a party to a contract cannot be charged with interfering with that contract. Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc., 611 So. 2d 238 (Ala.1992), and Lolley v. Howell, 504 So. 2d 253 (Ala.1987). While the rights and duties between different sets of parties to a multiparty contract may differ and the respective interests of the parties may compete, the performance of one of the duties or the pursuit of one of the competing interests cannot be validly branded as interference. A holding (as we do not hold) that a medical insurer's explaining a claim denial to its own insured could constitute a tortious interference in the contractual relations between the insured and his or her medical provider, would so unjustly prejudice the rights of insureds throughout Alabama that such a holding could not be a true tenet of our common law. Accordingly, we specifically hold that a medical insurer's explaining a claim denial to its insured cannot constitute a tortious interference in the contractual relations between the insured and his or her medical provider. Thus the trial court did not err in entering summary judgment in favor of Blue Cross on Dr. Guthrie's claims of tortious interference. Because the summary judgment was appropriate on all the claims for defamation and tortious interference, the Court of Civil Appeals erred in reversing the trial court. Accordingly, we reverse the judgment of the Court of Civil Appeals and render a judgment in favor of the defendant-petitioner Blue Cross. REVERSED AND JUDGMENT RENDERED. *481 HOOPER, C.J., and HOUSTON, COOK, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. MADDOX, J., concurs in the result.

June 9, 2000

7c985a6e-8a94-4b28-beb0-304288fe1171

Ex Parte Hitt

778 So. 2d 159

1980253

Alabama

Alabama Supreme Court

778 So. 2d 159 (2000) Ex parte Jackie Lee HITT. (In re Jackie Lee Hitt v. State). 1980253. Supreme Court of Alabama. June 30, 2000. *160 Kimberly J. Dobbs-Ramey, Decatur, for appellant. Bill Pryor, atty. gen., and James B. Prude, asst. atty. gen., for appellee. LYONS, Justice. Jackie Lee Hitt was convicted of driving while under the influence of alcohol ("D.U.I."), a violation of § 32-5A-191(h), Ala.Code 1975; driving while his license was revoked, a violation of § 32-6-19, Ala. Code 1975; and harassment, a violation of § 13A-11-8, Ala.Code 1975. Hitt appealed his D.U.I. and harassment convictions and his D.U.I. sentence to the Court of Criminal Appeals. That court, on August 28, 1998, affirmed the convictions and the D.U.I. sentence, with an unpublished memorandum. Hitt v. State (No. CR-97-0154), 741 So. 2d 481 (Ala.Crim.App.1998) (table). Hitt sought certiorari review only as to his D.U.I. sentence; we granted his petition. We reverse the judgment of the Court of Criminal Appeals insofar as it affirms Hitt's D.U.I. sentence, and we remand the cause. The trial court conducted a sentencing hearing on September 4, 1997. The court sentenced Hitt to two months' imprisonment on both his conviction for driving while his license was revoked and his conviction for harassment, with those sentences to be served concurrently. Hitt's D.U.I. conviction was treated as a felony conviction,[1] and for that conviction the court sentenced him to three years' imprisonment. The sentence was split; the court ordered Hitt to serve eight weeks in the Department of Corrections' substance-abuse program and placed him on three years' supervised probation. The court also fined Hitt $5,000. On September 10, Hitt filed a motion for a new trial; on September 15, he moved to withdraw that motion. On September 17, the court granted Hitt's motion to withdraw his request for a new trial. On October 7, the trial court, on its own motion, entered an order modifying Hitt's *161 felony D.U.I. sentence. The court again sentenced him to three years' imprisonment and split the sentence, but the sentence as modified ordered Hitt to serve 18 months in prison and to complete the Department of Corrections' substance-abuse program during that time. The court did not modify the requirement of three years' supervised probation or the amount of the fine. In the amended sentencing order, the court indicated that it had modified the sentence "[i]n order for the defendant to receive the benefit of the drug treatment program to which the undersigned sentenced him on September 4, 1997." Hitt argued to the Court of Criminal Appeals that, according to Rule 24.1(b), Ala. R.Crim. P., the trial court did not have jurisdiction on October 7 to modify his D.U.I. sentence, because more than 30 days had elapsed since he had been originally sentenced on September 4.[2] The State argued that the trial court still had jurisdiction on October 7 to modify Hitt's sentence because, it said, Hitt's motion for a new trial tolled the running of the 30-day jurisdictional period provided by Rule 24.1. The Court of Criminal Appeals agreed with the State and concluded that on October 7 the trial court had jurisdiction to modify Hitt's D.U.I. sentence because, that court held, the running of the 30-day jurisdictional period provided in Rule 24.1 was tolled for the 7-day period during which Hitt's motion for a new trial was pending. It is clear, under Alabama's rules of civil, criminal, and appellate procedure, that the time within which a notice of appeal must be filed is tolled by the filing of a timely posttrial motion for a new trial. See Rule 59, Ala. R. Civ. P.; Rule 24.1, Ala. R.Crim. P.; and Rule 4, Ala. R.App. P. Once the posttrial motion is disposed of, the 42-day period within which a party can file a notice of appeal begins to run anew. See the rules cited above. After reviewing the rules pertinent to the case before us, we conclude that the Court of Criminal Appeals has attempted to apply this principle of tolling in a setting where it does not apply, and that that error worked to Hitt's prejudice. Rule 24 of the Rules of Criminal Procedure addresses posttrial motions. Rule 24.1 governs motions for a new trial: Rule 24.2 governs motions in arrest of judgment: Motions to amend or correct a sentence are not specifically mentioned in the Rules of Criminal Procedure, but this Court has held that such posttrial motions are governed *162 by Rule 24. Pickron v. State, 475 So. 2d 599 (Ala.1985). See, also, Rose v. State, 598 So. 2d 1040 (Ala.Crim.App.1992). Further, if timely filed, such a motion may be presented to the court for a ruling after the 30-day period. See Rule 24.3, Ala. R.Crim. P.; Pickron, 475 So. 2d at 599-600. Although this principle is not directly stated in the Rules of Criminal Procedure, the Court of Criminal Appeals has held that if a motion for a new trial or a request to modify a sentence is not filed within 30 days after sentencing, then at the end of the 30th day the trial court loses all jurisdiction to modify a defendant's sentence. Hill v. State, 562 So. 2d 1386 (Ala.Crim.App.1990); Ex parte Hayden, 531 So. 2d 940 (Ala.Crim.App.1988). That court has also held that the pendency of a motion for a new trial does not deprive the trial court of the jurisdiction to receive and act upon a separate motion to amend a sentence, so long as that separate motion is filed within 30 days of the sentencing. Melvin v. State, 583 So. 2d 1365 (Ala.Crim. App.1991). In other words, the trial court does not lose its power to amend a sentence just because the running of the time in which an appeal can be taken is tolled by the pendency of a timely filed motion for a new trial. The provision for tolling the running of the time for taking an appeal allows the party moving for a new trial the opportunity to seek redress in the trial court, thereby possibly avoiding the need for an appeal, without fearing that the deadline for appealing may pass while the new-trial motion remains pending. We see no justification for allowing the trial court additional time in which to act on its own motion to amend a sentence in a setting where no posttrial motion is pending. As previously noted, Hitt voluntarily withdrew his motion, with the approval of the trial court. While other rules of criminal procedure are not as restrictive on a trial court's authority to act as Rule 24 is,[3] under Rule 24.2, governing motions in arrest of judgment, a trial court has the authority to act on its own motion in arresting judgment only during the 30-day period in which a defendant can make a motion in arrest of judgment. We decline to extend the time in which a trial court has jurisdiction to modify a defendant's sentence ex mero motu by borrowing a concept applicable to a factor not here presentedthe need to protect a defendant who has moved for a new trial from being shut out of an appeal on the basis that his appeal time expired while he was waiting for a ruling on his new-trial motion. The trial court here acted outside the 30-day jurisdictional period when it purported to modify Hitt's D.U.I. sentence on October 7. By then, the trial court had lost jurisdiction to modify the sentence; therefore, the order purporting to modify Hitt's D.U.I. sentence is void. The original D.U.I. sentence must be reinstated. The judgment of the Court of Criminal Appeals affirming the trial court's modification of Hitt's D.U.I. sentence is reversed. The cause is remanded for an order or proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, JOHNSTONE, and ENGLAND, JJ., concur. BROWN, J., recuses herself.[*] [1] Section 32-5A-191(h) provides that on a fourth or subsequent conviction for driving while under the influence of alcohol, a defendant is guilty of a Class C felony. [2] The Court of Criminal Appeals stated in its unpublished memorandum that even though Hitt had made this argument for the first time on appeal, it would address the argument because it concerned the trial court's jurisdiction. "[J]urisdictional matters are of such magnitude that [appellate courts] take notice of them at any time and do so even ex mero motu." Nunn v. Baker, 518 So. 2d 711, 712 (Ala.1987). See, also, King v. State, 677 So. 2d 836 (Ala.Crim.App.1996). [3] See, e.g., Rule 26.12(c) (trial court may, "at any time," reconsider consecutive sentences to make them concurrent); Rule 27.2 (trial court may, "at any time," modify or clarify any condition of probation); Rule 27.3 (trial court may extend or terminate probation "at any time"); Rule 29 (trial court may correct clerical mistakes "at any time"). [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

June 30, 2000

2a449fb7-0a50-4a17-a453-f9ac108f3b0d

Harold Allen's Mobile Home Factory Outlet, Inc. v. Early

776 So. 2d 777

1981337, 1981375

Alabama

Alabama Supreme Court

776 So. 2d 777 (2000) HAROLD ALLEN'S MOBILE HOME FACTORY OUTLET, INC. v. Frances B. EARLY and Yolanda L. Early. Southern Energy Homes, Inc. v. Frances B. Early and Yolanda L. Early. 1981337, 1981375. Supreme Court of Alabama. June 30, 2000. *779 W. Beatty Pearson of Pearson, Cummins & Hart, Spanish Fort, for appellant Harold Allen's Mobile Home Factory Outlet, Inc. John Martin Galese and Jeffrey L. Ingram of Galese & Ingram, P.C., Birmingham, for appellant Southern Energy Homes, Inc. Joseph C. McCorquodale III and Jacqualyn S. Bradley of McCorquodale & McCorquodale, Jackson, for appellees. SEE, Justice. Harold Allen's Mobile Home Factory Outlet, Inc. ("Harold Allen"), and Southern Energy Homes, Inc. ("Southern Energy"), defendants in an action pending in the Clarke County Circuit Court, separately appeal from the trial court's order denying their motions to compel arbitration. We hold that Harold Allen is entitled to compel arbitration of the claims filed by the plaintiffs, Frances B. Early and her daughter Yolanda L. Early, because the Earlys failed to present substantial evidence of fraudulent inducement of the arbitration agreement with Harold Allen, and we hold that Southern Energy is entitled to compel arbitration of the Earlys' claims based on the arbitration provision in its written warranty. Therefore, in both appeals, we reverse and remand. In March 1996, the Earlys purchased from Harold Allen a mobile home that had been manufactured by Southern Energy. In connection with the purchase, the Earlys signed a document labeled "Retail Installment Contract, Security Agreement, Waiver of Trial by Jury, and Agreement to Arbitration or Reference or Trial by Judge Alone"; and they signed with Harold Allen a separate document labeled "Agreement for Binding Arbitration and Waiver of Jury Trial." The separate arbitration agreement provides, in pertinent part, that the Earlys and Harold Allen agree to arbitrate "all claims and disputes including, but not limited to all contract disputes, claims of fraud, misrepresentation, breach of warrantyexpress or implied, negligence, wantonness and all torts of every type and nature in any way arising out of the sale and purchase of the mobile home."[1] In connection with their purchase of the mobile home, the Earlys received a "Home Owner's Manual" from Southern Energy. That manual includes a limited, written warranty and an arbitration provision.[2] The Earlys allege that they began experiencing problems with the mobile home. In March 1998, they sued Harold Allen and Southern Energy. The Earlys asserted claims alleging intentional or reckless fraudulent misrepresentation, breach of express warranty, breach of implied warranties of merchantability and habitability, negligent manufacture, negligent delivery, and negligent installation. The Earlys also sought a judgment declaring that the arbitration provision in Southern Energy's written warranty was void and unenforceable. Harold Allen and Southern Energy each moved to compel arbitration. Harold Allen based its motion on the separate arbitration agreement; Southern Energy based its motion on the arbitration provision in its written warranty and on the separate arbitration agreement. In response, the Earlys moved to amend their complaint to seek a declaration that both the arbitration provision in the installment agreement and the separate arbitration agreement were void and unenforceable. After conducting a hearing, the trial court granted Harold Allen and Southern Energy's motions to compel arbitration.[3] *781 The day after the trial court entered its order granting Harold Allen and Southern Energy's motions to compel arbitration, the Earlys each filed an affidavit in which they stated that a salesman for Harold Allen who had negotiated the sale of the mobile home had told them that the arbitration provision in the sales documents meant that if the Earlys defaulted in their installment payments, then Harold Allen "would not take [them] to court." Within 30 days, the Earlys filed a motion to alter, amend, vacate, or "reconsider" the trial court's order granting the motions to compel arbitration. The Earlys offered their previously filed affidavits in support of their motion. The trial court granted the Earlys' motion and vacated its order compelling arbitration, stating, with respect to Harold Allen, that the Earlys "claim fraud in the inducement of the arbitration agreement and the Court, not an arbitrator, must decide this issue," and stating, with respect to Southern Energy, that "[t]he Magnuson-Moss Act prohibits the enforcement of a binding arbitration clause in a written warranty." Harold Allen and Southern Energy appeal from the order vacating the order compelling arbitration. Thus, in effect, they are appealing from an order denying arbitration. A direct appeal is the proper procedure by which to seek review of a trial court's order denying a motion to compel arbitration. See Crimson Industries, Inc. v. Kirkland, 736 So. 2d 597, 600 (Ala.1999); A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358, 360 (Ala.1990); see also Federal Arbitration Act ("FAA"), 9 U.S.C. § 16 (1994) (providing that an appeal may be taken from an order denying a motion to compel arbitration). This Court reviews de novo a trial court's denial of a motion to compel arbitration. See First American Title Ins. Corp. v. Silvernell, 744 So. 2d 883, 886 (Ala.1999); Crimson Industries, Inc., 736 So. 2d at 600; Patrick Home Center, Inc. v. Karr, 730 So. 2d 1171, 1171 (Ala.1999). Section 2 of the FAA, 9 U.S.C. § 2, provides in pertinent part: Section 2 preempts conflicting Alabama law, in particular, Ala.Code 1975, § 8-1-41(3), thereby making enforceable a predispute arbitration agreement in a contract evidencing a transaction involving interstate commerce. See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 273-74, 277, 281, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995); Crown Pontiac, Inc. v. McCarrell, 695 So. 2d 615, 617 (Ala.1997). For FAA preemption to occur, (1) the parties must have entered a valid, written arbitration agreement and (2) the contract in which the arbitration agreement appears must relate to a transaction involving interstate commerce. See Prudential Sec., Inc. v. Micro Fab, Inc., 689 So. 2d 829, 832 (Ala. 1997). These appeals concern the first requirementthe validity and enforceability of the arbitration provisions in the "retail installment contract" in the warranty.[4] In vacating its order compelling arbitration, the trial court held that, with respect to Harold Allen, the Earlys had *782 presented a claim of fraudulent inducement that the court needed to decide. "[W]hen a claim of fraud in the inducement is directed toward the arbitration clause itself, the issue is adjudicated by the court," but "when a claim of fraud in the inducement is directed toward the entire contract, ... the issue is subject to arbitration." Investment Management & Research, Inc. v. Hamilton, 727 So. 2d 71, 78 (Ala.1999). The Earlys did not assert in their complaint, as amended, any claim of fraudulent inducement of the arbitration provision in the installment agreement or of the separate arbitration agreement with Harold Allen. In their original complaint, the Earlys sought a judgment declaring that the arbitration provision in Southern Energy's written warranty is void and unenforceable because, they alleged, (1) "no consideration [was] paid"; (2) "[they] did not agree to submit any claims or disputes to binding arbitration; in fact, this was never discussed with [them]"; (3) the arbitration provision "is unilateral in nature, and is not signed by either of [them] or [Southern Energy or Harold Allen]"; (4) "the transaction does not involve interstate commerce"; (5) there was a "lack of mutuality of remedy"; and (6) the arbitration provision "was not any part of the transaction which is made the basis of [the][c]omplaint, nor was it contained in any of the agreements or documents executed by [the Earlys] with regard to the purchase of their mobile home." In their amended complaint, the Earlys sought, additionally, a judgment declaring void and unenforceable the arbitration provision in the installment agreement and the separate arbitration agreement. They alleged the same grounds they had asserted in their original complaint. We do not interpret the Earlys' allegations, particularly allegations (2) and (6), as stating a claim of fraudulent inducement of the arbitration agreementthat is, as an allegation that they were tricked by misrepresentations into signing the arbitration agreement or the installment agreement. Even if we interpreted the Earlys' allegations as stating a claim of fraudulent inducement, we would have to conclude that they did not present substantial evidence in support of that claim. See Ex parte Perry, 744 So. 2d 859, 863 (Ala.1999) (opinion of three Justices) ("A party must provide substantial evidence of fraud in the inducement, particularly related to the arbitration clause, in order to avoid arbitration."). The only evidence presented to support their challenge to the enforceability of the arbitration agreement was their own affidavits.[5] Yolanda Early's affidavit states, in pertinent part: *783 Frances Early's affidavit corroborates these statements.[6] Federal law requires this Court to review under general Alabama contract law the allegations that the Earlys were fraudulently induced to sign the arbitration agreement, and to resolve in favor of arbitration any doubts whether the Earlys' fraudulent-inducement claim is arbitrable. See Quality Truck & Auto Sales, Inc. v. Yassine, 730 So. 2d 1164, 1167-68 (Ala.1999). The Earlys' fraudulent-inducement claim is governed by the "reasonable-reliance" standard. See Foremost *784 Ins. Co. v. Parham, 693 So. 2d 409 (Ala.1997). Under that standard, a person cannot blindly rely on an agent's oral representations to the exclusion of written disclosures in a contract. Ex parte Caver, 742 So. 2d 168, 173 (Ala.1999). Thus, the Earlys were required to produce substantial evidence indicating that they reasonably relied on representations by Harold Allen's salesman. The gravamen of the Earlys' allegations is that Harold Allen's salesman did not fully disclose and adequately explain the separate arbitration agreement. However, Harold Allen had no duty to disclose or explain the arbitration agreement. See Green Tree Fin. Corp. v. Vintson, 753 So. 2d 497 (Ala.1999); Patrick Home Center, Inc. v. Karr, 730 So. 2d 1171, 1174 (Ala.1999); Green Tree Agency, Inc. v. White, 719 So. 2d 1179, 1180 (Ala.1998); see also First Family Fin. Servs., Inc. v. Rogers, 736 So. 2d 553, 558 (Ala.1999) ("[W]hen a competent adult, having the ability to read and understand an instrument, signs a contract, he will be held to be on notice of all the provisions contained in that contract, including an arbitration provision, and will be bound thereby."). Moreover, the separate arbitration agreement clearly discloses both that it is an arbitration agreement and the terms of that agreement. The Earlys presented no evidence indicating that they cannot read, that the salesman prevented them from reading the documents they signed, or that they could not have understood the arbitration agreement had they taken the time to read it. See Green Tree Fin. Corp. v. Vintson, supra. Thus, based on the evidence in the record, one must conclude that the Earlys did not reasonably rely on the salesman's alleged representation about the meaning of the arbitration agreement. To conclude otherwise would allow the Earlys to shut their eyes to the terms of the documents they voluntarily signed and to blindly rely on the salesman's alleged representation.[7] No such doctrine is supported by Alabama's general contract law, and such a doctrine would, therefore, be contrary to the strong federal policy favoring arbitration. See Quality Truck & Auto Sales, Inc., 730 So. 2d at 1168. Interpreting the Earlys' allegations as stating a claim of fraudulent inducement of the arbitration agreement, we conclude that the Earlys did not present substantial evidence in support of that claim, and that the trial court therefore erred in vacating on that ground its order compelling arbitration. The other challenges to the arbitration agreement that the Earlys raise in their amended complaint either are without merit or are not supported by the record.[8] The Earlys signed the arbitration *785 agreement. The arbitration agreement is supported by sufficient consideration: the Earlys agreed, among other things, to arbitrate pursuant to the terms of the arbitration agreement, and, in return, Harold Allen agreed, among other things, to sell the mobile home. See Ex parte McNaughton, 728 So. 2d 592, 595-96 & n. 5 (Ala.1998). The Earlys' mutuality-of-remedy argument has previously been rejected by this Court as "simply erroneous." Green Tree Fin. Corp. v. Vintson, supra, 753 So. 2d at 504. The Earlys also claim that the issue of "agree[ing] to submit any claims or disputes to binding arbitration... was never discussed with [them]." As stated above, this claim is without merit because Harold Allen had no duty to discuss the written arbitration agreement. Finally, the Earlys claim that the arbitration provision "was not any part of the transaction which is made the basis of [the][c]omplaint, nor was it contained in any of the agreements or documents executed by [the Earlys] with regard to the purchase of their mobile home." This claim, however, is contradicted by the allegations of their complaint that relate to their purchase of the mobile home and by the plain language of the arbitration agreement signed by the Earlys, which clearly states that it is being entered "[a]s part of the consideration for the sale of [the] mobile home." Accordingly, we hold that the arbitration agreement between Harold Allen and the Earlys is valid and enforceable, and that, pursuant to the terms of that agreement, and in accordance with the FAA, Harold Allen is entitled to compel arbitration of the Earlys' claims. The Earlys argue that the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (the "Magnuson-Moss Act") precludes Southern Energy from compelling arbitration of their breach-of-express-warranty claims, regardless of whether Southern Energy seeks to compel arbitration based on an arbitration provision in its written warranty or based on an arbitration provision in a separate agreement. Southern Energy argues that the Magnuson-Moss Act does not preclude enforcement of the binding-arbitration provision in the written warranty, relying on the analytical framework established by the Supreme Court of the United States in Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S. Ct. 2332, 96 L. Ed. 2d 185 (1987). In Southern Energy Homes, Inc. v. Lee, 732 So. 2d 994 (Ala.1999), this Court, adopting the rationale of the United States District Court for the Middle District of Alabama in Wilson v. Waverlee Homes, Inc., 954 F. Supp. 1530 (M.D.Ala.1997), aff'd, 127 F.3d 40 (11th Cir.1997) (table), and in Boyd v. Homes of Legend, Inc., 981 F. Supp. 1423 (M.D.Ala.1997),[9] "[held] that the Magnuson-Moss Act prohibits the inclusion in a written warranty of a provision calling for binding arbitration." 732 So. 2d at 999. Thus, this Court concluded, because the arbitration provision in Southern Energy's written warranty was unenforceable and because "the only arbitration clause [Southern Energy] relie[d] upon appear[ed] in its written warranty," the plaintiffs' breach-of-express-warranty claims, as well as their fraud and breach-of-implied-warranty claims, were not subject to arbitration. Lee, 732 So. 2d at 1000. However, in Southern Energy Homes v. Ard, 772 So. 2d 1131 (Ala.2000), this Court overruled Lee. Thus, the arbitration provision in Southern Energy's written warranty is enforceable, and Southern Energy is entitled to compel arbitration of the Earlys' claims, in accordance with that provision. *786 Therefore, the trial court erred in refusing to compel arbitration of the Earlys' claims against Southern Energy on the ground that the Magnuson-Moss Act prohibits Southern Energy from enforcing the arbitration provision in its written warranty. The Earlys failed to present substantial evidence of fraudulent inducement of the arbitration agreement, and the arbitration provision in Southern Energy's written warranty is enforceable. Accordingly, we reverse the trial court's order denying arbitration and remand the case for that court to enter an order consistent with this opinion. 1981337REVERSED AND REMANDED. 1981375REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, BROWN, and ENGLAND, JJ., concur as to Part II.A. HOUSTON, COOK, LYONS, and JOHNSTONE, JJ., dissent as to Part II.A. HOOPER, C.J., and MADDOX, LYONS, and BROWN, JJ., concur as to Part II.B. HOUSTON, COOK, JOHNSTONE, and ENGLAND, JJ., dissent as to Part II.B. LYONS, Justice (concurring as to Part II.B., but dissenting as to Part II.A.). I concur in Part II.B., but I dissent from Part II.A. I join Justice Cook's dissent as to Part II.A. to the extent it states that the Earlys' claims regarding the enforceability of the arbitration agreements with Harold Allen should be construed as an attack on the arbitration agreements, thereby presenting a question for the court and not the arbitrator. I express no opinion as to the merits of these claims, because the merits are not before us at this time. ENGLAND, Justice (concurring in Part II.A., but dissenting from Part II.B.). I agree that the Earlys did not provide substantial evidence indicating they had been fraudulently induced to enter the arbitration agreement with Harold Allen. Therefore, I concur in Part II.A. However, I respectfully dissent from Part II.B. because Southern Energy is a nonsignatory as to the arbitration agreement between Harold Allen and the Earlys, and we have held that a manufacturer cannot rely on the arbitration provisions in a contract between a buyer of a mobile home and the seller, when that manufacturer is a nonsignatory. See Ex parte Isbell, 708 So. 2d 571 (Ala.1997). To the extent Southern Energy relies on a written arbitration agreement contained in its warranty document, the Magnuson-Moss Act precludes it from compelling arbitration of the breach-of-express-warranty claims. HOUSTON, Justice (dissenting). See my special concurrence in Southern Energy Homes, Inc. v. Lee, 732 So. 2d 994, 1000-04 (Ala.1999), which I referenced for my dissent in Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131 (Ala.2000). COOK, Justice (dissenting). The majority holds in Part II.A. of the opinion that Frances and Yolanda Early are required to arbitrate their claims against Harold Allen's Mobile Home Factory Outlet, Inc. ("Harold Allen"), and in Part II.B. that the Earlys are required to arbitrate their claims against Southern Energy Homes, Inc. ("Southern Energy"). I dissent as to both Parts II.A. and II.B. The main opinion states that the trial court held that "the Earlys had presented a claim of fraudulent inducement that the court needed to decide." 776 So. 2d at 781-82. I agree with the trial court. The trial court's judgment is in accord with Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S. Ct. 1801, 18 *787 L. Ed. 2d 1270 (1967). In that case, the United States Supreme Court held that claims of fraud in the inducement are, themselves, arbitrable only if they are not directed at the arbitration clause itself. Id. at 403-04, 87 S. Ct. 1801 ("if the claim is fraud in the inducement of the arbitration clause itselfan issue which goes to the `making' of the agreement to arbitrate the ... court may proceed to adjudicate it"). That is this case. By affidavit, Yolanda Early testified that she "specifically asked [the Harold Allen salesman] if [the arbitration provision] only had to do with the situation where [she] might come into default with a payment and Harold Allen would agree to arbitrate if [she] defaulted in [her] payments." (Emphasis added.) She stated that the "[t]he salesman told [her] that that was what that clause meant." Her affidavit further stated: The majority states: "The gravamen of the Earlys' allegations is that Harold Allen's salesman did not fully disclose and adequately explain the separate arbitration agreement." 776 So. 2d at 784. That is demonstrably untrue. The Earlys allege that the salesman affirmatively misrepresented the purpose and content of the arbitration provision in answer to the Earlys' direct inquiries. These allegations are unmistakable. Yolanda Early's affidavit places the "`making' of [an] agreement to arbitrate," Prima Paint, directly in issue. However, the majority states: "The only evidence presented to support their challenge to the enforceability of the arbitration agreement was their own affidavits." 776 So. 2d at 782. Until today, I was unaware that this Court did not accord plaintiffs' sworn affidavits evidentiary status. Moreover, the majority holds that the Earlys' reliance on the salesman's misrepresentations was unreasonable as a matter of law. Again, I disagree. Ordinarily, whether reliance is reasonable is a question of fact for the jury. Cf. Foremost Ins. Co. v. Parham, 693 So. 2d 409, 421 (Ala. 1997). Whether reliance is reasonable requires a determination under all the facts and "circumstances surrounding a transaction, including the mental capacity, educational background, relative sophistication, and bargaining power of the parties." Id. (emphasis added). Under these facts, the Earlys' reliance was not unreasonable as a matter of law. Thus, under Prima Paint and general contract law, the Earlys presented a justiciable issue of fraud in the inducement of the agreement to arbitrate their claims against Harold Allen. As to Part II.B., dealing with the claims against Southern Energy, I also dissent on the grounds set forth in Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131, 1135 (Ala.2000) (Johnstone, J., dissenting). As to the rulings requiring arbitration of all the Earlys' claims, I respectfully dissent. JOHNSTONE, Justice (dissenting). I respectfully dissent from the holding that the arbitration provisions in the written warranty issued by Southern Energy Homes, Inc., are enforceable. For the reasons I explain in my dissent in Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131, 1135 (Ala.2000), I maintain that the Magnuson-Moss Act invalidates those arbitration provisions. Thus we should not require the Earlys to arbitrate their claims against Southern Energy. I further respectfully dissent from the holding that the arbitration agreement between *788 Harold Allen's Mobile Home Factory Outlet, Inc. ("Harold Allen"), and the Earlys is enforceable. While the agreement relegates the Earlys to arbitration for any claims they may bring, the last paragraph of the agreement allows Harold Allen to sue the Earlys in court to recover the purchase price of the mobile home or to enforce Harold Allen's rights in the mobile home as collateral securing the purchase price. This paragraph is an implicit acknowledgment by the drafter, Harold Allen, that arbitration is an unfit forum for its own claims. Thus, arbitration cannot logically constitute a fit forum for the buyers' claims either. We should not relegate the buyer-plaintiffs to an unfit forum. See my dissents in Green Tree Financial Corp. v. Vintson, 753 So. 2d 497, 505 (Ala.1999); Ex parte Perry, 744 So. 2d 859 (Ala.1999); Ex parte Smith, 736 So. 2d 604 (Ala.1999); Ryan's Family Steak Houses, Inc. v. Regelin, 735 So. 2d 454 (Ala.1999). See also my special writing in Patrick Home Center, Inc. v. Karr, 730 So. 2d 1171 (Ala. 1999). This aspect of the arbitration agreement between Harold Allen and the Earlys justifies the decision of the trial court to refuse to compel the plaintiffs to arbitrate their claims against Harold Allen. We should not reverse the trial court if it is right for any reason, even one ignored or rejected by the trial court or not argued by the parties. Rogers Foundation Repair, Inc. v. Powell, 748 So. 2d 869 (Ala.1999); McKenzie Methane Corp. v. M-W Drilling, Inc., 653 So. 2d 982 (Ala. 1995); Smith v. Equifax Servs., Inc., 537 So. 2d 463 (Ala.1988); Bank of the Southeast v. Koslin, 380 So. 2d 826 (Ala.1980). [1] The separate arbitration agreement also contains the following numbered paragraph: "2. All disputes, claims or controversies in any manner arising from the transaction of sale and purchase of the mobile home described herein, or from the relationships which result from the transaction between the Buyer and Seller, including this arbitration by one arbitrator who is to be selected by the Seller or by the Seller's assignee with the consent of the Buyer." Although this particular provision of the arbitration agreement, when read in isolation, is ambiguous because it does not express a complete thought, we must consider the whole of the agreement in deriving the intent of the parties. See Charles H. McCauley Assocs., Inc. v. Snook, 339 So. 2d 1011 (Ala.1976). Considering the entire agreement, we find it clear that the parties intended to submit to arbitration all claims and disputes between the Earlys and Harold Allen relating to the sale and purchase of the mobile home. [2] The arbitration provision in Southern Energy's written warranty reads in pertinent part: "In the event of any dispute or claim, arising out of or in connection with the design, construction, warranty or repair of any product or component supplied by the Manufacturer [Southern Energy], the condition of the product, the conformity of the product, the merchantability of the product, whether such product is or is not `new', any representations, promises, undertakings or covenants made or allegedly made by the Manufacturer in connection with or arising out of any transaction or undertaking between the Manufacturer and any purchaser, or subsequent purchaser, the Manufacturer and the purchaser of this product agree to submit such dispute or claim to binding arbitration, pursuant to the provisions of 9 U.S.C. § 1, et.seq. [sic] and according to the Commercial Rules of Arbitration of the American Arbitration Association then existing." [3] The Earlys also sued several fictitiously named defendants and BankAmerica Housing Services, a division of Bank of America, FSB ("BankAmerica"), the company that had financed the purchase and to which the installment agreement had been assigned. BankAmerica moved to dismiss the Earlys' complaint, or, in the alternative, to compel arbitration of their claims. The trial court granted BankAmerica's motion to dismiss. BankAmerica is not a party to this appeal, and the trial court's ruling on BankAmerica's motion to dismiss is not before this Court. The Earlys have not amended their complaint to substitute the true names of any of the fictitiously named defendants. See Rule 9(h), Ala. R. Civ. P. [4] The Earlys do not argue that the sale of the mobile home was not "a transaction involving [interstate] commerce." 9 U.S.C. § 2. [5] We note that Harold Allen and Southern Energy, relying on Moore v. Glover, 501 So. 2d 1187 (Ala.1986), argue that the Earlys' affidavits presented in support of their "Motion to Alter, Amend, Vacate, or Reconsider [the] Order" compelling arbitration were untimely filed, and, thus, that the trial court could not properly consider them in ruling on the Earlys' motion to reconsider. However, the record does not show that in the trial court Harold Allen and Southern Energy raised any objection to the Earlys' affidavits. Because this argument is raised for the first time on appeal, this Court cannot consider it. See Kitchens v. Maye, 623 So. 2d 1082, 1088 (Ala. 1993); Smith v. Equifax Servs., Inc., 537 So. 2d 463, 465 (Ala.1988). [6] We do not interpret the Earlys' allegations as falling within the class of fraud termed fraud in the factum, or execution, as distinguished from fraud in the inducement, or treaty, and, thus, as permitting the Earlys to avoid the obligation to arbitrate. See Drinkard v. Embalmers Supply Co., 244 Ala. 619, 14 So. 2d 585 (1943) (explaining distinction between fraud in the factum and fraud in the inducement). As Professor Farnsworth explains in his treatise, fraud in the factum applies only "[i]n rare cases [where] the misrepresentation is regarded as going to the very character of the proposed contract itself, as when one party induces the other to sign a document by falsely stating that it has no legal effect." E. Allan Farnsworth, Contracts, § 4.10 (1982); see also Restatement (Second) of Contracts § 163 & cmt. a (1981) ("If a misrepresentation as to the character or essential terms of a proposed contract induces conduct that appears to be a manifestation of assent by one who neither knows nor has reasonable opportunity to know of the character or essential terms of the proposed contract, his conduct is not effective as a manifestation of assent.'). These rare cases "`include situations involving blind persons, illiterate persons, [and] foreign speaking persons.'" Alfa Mutual Ins. Co. v. Northington, 561 So. 2d 1041, 1049 (on application for rehearing) (Houston, J., concurring specially) (citations omitted); see, e.g., Cancanon v. Smith Barney, Harris, Upham & Co., 805 F.2d 998 (11th Cir.1986) (case involving persons who "[had] no knowledge of the English language" 805 F.2d at 999). Alabama law has a long line of cases recognizing the following rule regarding fraud in the factum: "`"When the execution of an instrument, which the party signing did not intend to sign, and did not know he was signing, is procured by a misrepresentation of its contents, and the party signing it does so without reading it or having it read, relying upon such misrepresentations and fraud, and believing he is signing a different instrument, he can avoid the effect of his signature notwithstanding he was able to read and had an opportunity to read the instrument."'" Willcutt v. Union Oil Co. of California, 432 So. 2d 1217, 1220 (Ala.1983) (quoting earlier cases and collecting cases). See also W.T. Rawleigh Medical Co. v. Wilson, 7 Ala.App. 242, 252, 60 So. 1001, 1005 (1912), and cases cited therein. Alabama caselaw, like the Restatement, recognizes that to constitute fraud in the factum, and thereby to prevent the formation of a contract, the misrepresentation must go to the essential nature or existence of the contract itself, for example, a misrepresentation that an instrument is a promissory note when in fact it is a mortgage, see Edwards v. Tabb, 242 Ala. 209, 210, 5 So. 2d 770, 771 (1942). A misrepresentation that concerns a misapprehension of the legal meaning of a term or provision in a contract does not constitute fraud in the factum. See Rutter & Hendrix v. Hanover Fire Ins. Co., 138 Ala. 202, 215, 35 So. 33, 37 (1903) ("`[A]ll our decisions hold, that in the absence of a relation of trust and confidence, or of some other peculiar fact or circumstance, a misrepresentation of [a] matter of law, or of [a] matter of judgment equally open to the observation or inquiries of both parties, or of mere opinion, will not vitiate a contract.' ... `[A] misrepresentation of the legal effect of a written instrument was, from its very nature, but the expression of an opinion upon a question of law, equally open to the observation and inquiries of both parties, and as to which, the law presumes that the party to whom it was made had knowledge.'") (citations omitted); see also Restatement (Second) of Contracts § 164 & cmt. b, illus. 2 & 3 (1981). The Earlys do not allege that they did not know they were signing an arbitration agreement (indeed, their question to Harold Allen's salesman makes it clear they were aware of the arbitration agreement) or that the salesman represented that the document they were signing was not an arbitration agreement or that it had no legal effect. Instead, they allege that Harold Allen's salesman misrepresented the legal meaning of the arbitration agreement and that they relied on that misrepresentation. However, under the rule of Rutter & Hendrix, absent a confidential relationship or other special circumstances between the Earlys and Harold Allen, the salesman's misrepresentation of the legal meaning of the arbitration agreement cannot form the basis for a claim of fraud in the factum. Accordingly, we would interpret the Earlys' allegations as going to inducement. [7] Our conclusion reaffirms the importance of written contracts and the duty on the part of those entering written contracts to act reasonably by reading the terms of the documents they sign. See generally Foremost Ins. Co. v. Parham, 693 So. 2d 409, 437-39 (Ala.1997) (See, J., concurring specially); see also Alfa Mut. Ins. Co. v. Northington, 561 So. 2d 1041, 1048-49 (on application for rehearing) (Houston, J., concurring specially) (discussing the "`societal need to uphold the integrity and certainty of written contracts'" and "`"the duty of every contracting party to learn and know its contents before he signs [a writing]"'" (quoting Morris G. Shanker, Judicial Misuses of the Word Fraud to Defeat the Parol Evidence Rule and the Statute of Frauds (With Some Cheers and Jeers for the Ohio Supreme Court), 23 Akron L.Rev. 1 (1989))). [8] We note that the Earlys challenge both the arbitration provision in the installment agreement and the separate arbitration agreement. On appeal, Harold Allen relies on both the arbitration provision in the installment agreement and the separate arbitration agreement. However, in the trial court, Harold Allen relied only on the separate arbitration agreement in support of its motion to compel arbitration. Harold Allen may not raise for the first time on appeal, in support of its motion to compel arbitration, the arbitration provision in the installment agreement. See Quality Truck & Auto Sales, Inc. v. Yassine, 730 So. 2d 1164, 1170 (Ala.1999); Smith v. Equifax Servs., Inc., 537 So. 2d 463, 465 (Ala. 1988). Accordingly, regarding Harold Allen, we address the Earlys' challenges only in relation to the separate arbitration agreement. [9] We note that neither Wilson nor Boyd is binding precedent on this Court. We also note that the United States Court of Appeals for the Eleventh Circuit recently remanded Boyd with instructions that the district court vacate its order denying the mobile-home manufacturer's motion to compel arbitration. Boyd v. Homes of Legend, Inc., 188 F.3d 1294, 1300 (11th Cir.1999).

June 30, 2000

02321c04-98cf-4ebc-94d3-88d736cbf09f

Reichert v. City of Mobile

776 So. 2d 761

1981155

Alabama

Alabama Supreme Court

776 So. 2d 761 (2000) Gordon P. REICHERT et al. v. CITY OF MOBILE. 1981155. Supreme Court of Alabama. June 30, 2000. *763 John W. Parker and Herndon Inge III, Mobile, for appellants. Mark L. Redditt and J. Gregory Evans of Cherry, Givens, Peters & Lockett, P.C., Mobile, for appellee. ENGLAND, Justice. The plaintiffs are homeowners in the Greenwich Hills subdivision in Mobile. After their properties were flooded, they sued the City of Mobile, seeking damages on theories of negligent design, negligent construction, negligent maintenance, continuing trespass, and continuing nuisance, all related to the City's storm-drainage system. They appeal from a summary judgment entered in favor of the defendant City. The issues on appeal are (1) whether the plaintiffs' claims are barred by the statute of limitations and (2) whether the City proved that there were no genuine issues of material fact to be decided and that it was entitled to a judgment as a matter of law. We affirm in part, reverse in part, and remand. The plaintiffs Ollie Cooper and Helen Cooper; Shirley H. Davis; Gordon P. Reichert and Linda J. Reichert; and Grace L. Edmisten, all own lots facing Cottage Hill Road, and their lots border one another. The plaintiff Maurice Martin's lot is at the corner of Wilshire Road and Shevlin Lane, immediately north of and adjacent to the Reicherts' property. The plaintiffs Francis D. Nolan and Donna Nolan do not live on the same block as the rest of the plaintiffs. They own the second lot from Cottage Hill on the west side of Wilshire Road. One of the plaintiffs, Helen Cooper, purchased her home in 1968; at that time, Cottage Hill Road was a two-lane road. She testified that Cottage Hill Road was widened and elevated in 1973 or 1974. Mrs. Cooper experienced her first flood in 1981, and she experienced subsequent floods in 1982 and on May 28, 1997, January 7, 1998, and March 7 and 8, 1998. Shirley Davis moved into Greenwich Hills in 1970. She experienced her first flood in 1981 and experienced subsequent floods on May 28, 1997, and in January 1998. She admits that after the 1981 flood had occurred she was aware that her home could potentially flood. Mr. and Mrs. Reichert moved to Greenwich Hills in March 1979. Water entered their home in 1980, 1981, 1997, and 1998. Mr. Reichert testified that he was aware in 1980 or 1981 that his home was subject to flooding, and he testified that the City of Mobile cleaned out the drains in his neighborhood on more than one occasion before May 1997. Ms. Edmisten moved into Greenwich Hills in 1992. She testified that she believed her home first flooded in 1995. Her home also flooded on May 28, 1997, and on January 7, 1998. The Nolans purchased their home in April 1995. The source of their flooding is a ditch on the western end of their lot. They first experienced flooding on July 4, 1995, when water came from the drainage ditch and traveled under their back door and into their living room. Mrs. Nolan testified that after the July 1995 flood, water would come into their home every time a hard rain fell. The Nolans experienced flooding on the Wilshire Road side of their property on May 28, 1997. Ms. Davis testified that after the May 28, 1997, flood she telephoned the City to complain about the drains getting clogged because, she said, the drain to the east of her property was "stopped up big time." She testified that she telephoned the "Action Line" several times about the drains. She testified that the City sent out a vacuum truck, and that she, Maurice Martin, and Mr. Reichert met with Bob Vogtner, the deputy director of public works, who *764 works with the City's engineering department, regarding the clogged drains. Mrs. Cooper testified that she and the other residents would telephone the City often whenever they thought the sewer drain needed to be pumped out, but that sometimes the City would not respond. The plaintiffs alleged (1) that the City had negligently designed, constructed and/or maintained the storm-drainage system in their neighborhood, (2) that as a result of the City's negligent design, construction, and/or maintenance of the storm-drainage system their homes and property had been flooded on numerous occasions, and (3) that the flooding events constituted a continuing trespass and a continuing nuisance. The plaintiffs offered expert testimony from Kenneth Underwood, a licensed professional engineer. Mr. Underwood, after reviewing documents produced by the City referencing construction on and around Cottage Hill Road in 1974, testified by affidavit that in his opinion Cottage Hill Road acts as a dam and prevents the floodwater from flowing south away from the plaintiffs' homes. He also testified by affidavit that he believed Cottage Hill Road was raised in 1974 or 1975 when the City widened Cottage Hill Road from two lanes to five; he said the widening elevated the center lane of the road by 3.5 feet. Mr. Underwood also testified that he believed subsequent development of the area around the Greenwich Hills subdivision has overburdened the storm-drainage system. A motion for summary judgment is granted only when the evidence demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Ala. R. Civ. P. "In order to defeat a properly supported motion for summary judgment, the plaintiff must present `substantial evidence,' i.e., `evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.'" Lewis v. Mobil Oil Corp., 765 So. 2d 629, 630 (Ala.1999)(quoting West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989)). "This Court must review the record in the light most favorable to the nonmovant and must resolve all reasonable doubts against the movant." System Dynamics Int'l, Inc. v. Boykin, 683 So. 2d 419, 420 (Ala.1996). The trial court granted the City's motion for summary judgment, concluding that the statute of limitations barred the claims alleging negligent design and trespass and nuisance because the plaintiffs had had notice of the potential negligent-design claim more than two years before they filed their complaint. The trial court held that the City's duty to maintain the storm-drainage system was a continuing duty, but found that the plaintiffs had not presented substantial evidence indicating that the City had failed to maintain the drains or indicating that any lack of maintenance had proximately caused the harm suffered by the plaintiffs. The plaintiffs argue that the trial court erred in holding that their claims were barred by the statute of limitations. Recently, in City of Birmingham v. Leberte, 773 So. 2d 440 (Ala.2000), we reiterated the law applicable in these cases, as it was first stated in Harris v. Town of Tarrant City, 221 Ala. 558, 130 So. 83 (1930): Harris v. Town of Tarrant City, 221 Ala. at 560, 130 So. at 84. After noting that the principle regarding abatable and unabatable nuisances was controlled by § 235 of the Constitution of 1901, which makes a city liable for damage resulting from the construction or enlargement of its works, highways, or improvements, this Court further stated: Harris, 221 Ala. at 560, 130 So. at 85. The widening and elevation of Cottage Hill Road in 1973 or 1974 was a permanent condition. Consequently, the plaintiffs' negligent-construction and negligent-design claims are barred by the statute of limitations because all of the plaintiffs sued more than two years after they had experienced their first floods after the construction. The plaintiffs would not be entitled to recover damages in a separate action based on negligent construction and negligent design for floods that occurred more than two years after they discovered their property would flood. We affirm the summary judgment as to the negligent-construction and negligent-design claims. The plaintiffs' claims alleging negligent maintenance, however, would not be barred by the statute of limitations, because each flood event is an abatable nuisance and gives rise to a separate cause of action. See Harris, supra. The floods for which the plaintiffs seek damages all came within the two years preceding the date they filed their complaint. The City of Mobile argues that all of the plaintiffs are now complaining of having suffered the same injury that they had complained of more than two years before they filed their complaint, and, because they did not file their notice of claim or their lawsuit within six months or two years, respectively, of their first flooding event, their claims are barred. We are not persuaded by this argument, for several reasons. The plaintiffs do not seek damages for property damage that occurred as a result of flooding that took place more than two years before they filed their complaint. Contrary to the City's argument, each flooding event resulted in a different injury because the plaintiffs suffered, at a minimum, the additional financial burden of having the water removed from their homes and having personal property repaired or replaced each time flooding occurred. To uphold the judgment in favor of the City would be unfair to the plaintiffs, given the fact that the plaintiffs' properties have continued to flood even after they filed their complaint. The summary judgment is reversed as to the plaintiffs' negligent-maintenance claim. Although the negligent-maintenance claims are not barred by the statute of limitations, the plaintiffs still must present substantial evidence of negligent maintenance in order to avoid the entry of a summary judgment against those claims. In other words, they must present evidence from which a jury could reasonably *766 conclude that the flooding of their property was proximately caused by the City's failure to provide appropriate upkeep for the storm-drainage system in its existing condition, see City of Birmingham v. Leberte, supra, rather than by the City's failure to correct any alleged design or construction problems with the that system, see Williams v. Board of Water & Sewer Comm'rs of the City of Prichard, 763 So. 2d 938 (Ala.1999). The plaintiffs argue that the evidence before the court created genuine issues of material fact and, thus, that the court should not have entered the summary judgment for the City. The plaintiffs argue that their negligent-maintenance claim alleges a "continuing nuisance" or a "continuing trespass." The trial court held that nothing in the facts alleged by the plaintiffs supported their claim that the City had committed repeated acts of negligence that could be termed a "continuous tort" and that would, consequently, toll the running of the statutory limitations period. We do not agree. After reviewing engineering drawings and other documents, interviewing the property owners, and reviewing photographs of the property, the plaintiffs' expert testified that the City had failed to maintain the storm-water culverts and that that failure had contributed to the flooding. One of the plaintiffs testified that the storm drain to the east of her property was "stopped up big time." The expert further testified that the City has issued additional permits for development to the north and to the west of the plaintiffs' subdivision, causing an increased discharge of surface water to be directed to the area of the plaintiffs' property. The City has not shown that there is no genuine issue as to any material fact with regard to the negligent-maintenance claims. The summary judgment is affirmed as to the negligent-construction and negligent-design claims; it is reversed as to the negligent-maintenance claim. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HOOPER, C.J., and HOUSTON, COOK, and JOHNSTONE, JJ., concur. MADDOX, J., concurs in the result. SEE, LYONS, and BROWN, JJ., concur in part and dissent in part.[*] LYONS, Justice (concurring in part and dissenting in part). I concur in the majority opinion to the extent it affirms the summary judgment as to the negligent-construction and negligent-design claims (Part I.A.). I concur in the statement of law contained in Part I.B. dealing with the statute of limitations in the context of a claim alleging negligent maintenance. However, I cannot join that portion of Part I.B. reversing the summary judgment as to the plaintiffs' negligent-maintenance claims, because I must dissent from Part II. I do not think the plaintiffs, on their claims alleging negligent maintenance, offered sufficient evidence of a causal relationship between the injuries complained of and the conduct of the City. SEE, J., concurs. [*] Note from the reporter of decisions: Justice Brown did not indicate which part of the opinion or judgment she concurred in or which part she dissented from.

June 30, 2000

60975a0d-5ed7-435d-a424-f14473691064

Southern Energy Homes, Inc. v. Gregor

777 So. 2d 79

1980236

Alabama

Alabama Supreme Court

777 So. 2d 79 (2000) SOUTHERN ENERGY HOMES, INC. v. Vicki Carol GREGOR and Herchel W. Baker. 1980236. Supreme Court of Alabama. June 30, 2000. John Martin Galese and Jeffrey L. Ingram of John Martin Galese, P.A., Birmingham, for appellant. Joseph C. McCorquodale III and Jacqualyn S. Bradley of McCorquodale & McCorquodale, Jasper, for appellees. PER CURIAM. Vicki Carol Gregor and Herchel W. Baker (hereinafter called "Gregor") purchased a mobile home manufactured by Southern Energy Homes, Inc. Gregor's agreements, disputes, and claims against the retailer who sold them the mobile home are not *80 material to the issues dispositive of this appeal. Gregor sued both the retailer and Southern Energy. She alleged claims of intentional misrepresentation; fraud in the inducement; breach of warranty; negligent manufacture, design, or construction; negligent transportation; and negligent installation. Gregor also asked the trial court to declare void "any alleged agreement to arbitrate" between Gregor and Southern Energy. Southern Energy answered and moved to stay the action and to compel arbitration of Gregor's claims. In support of its motion, it submitted a document entitled "SOUTHERN ENERGY WARRANTY LIMITED ONE-YEAR/FIVE-YEAR WARRANTY" containing the language of an arbitration agreement between the manufacturer and the purchaser. The warranty includes the following arbitration language: Gregor did not object to the submission of this document. Thus, the record establishes Southern Energy's prima facie case for the existence of the agreement to arbitrate. TranSouth Fin. Corp. v. Bell, 739 So. 2d 1110 (Ala.1999). Southern Energy also submitted two affidavits by Don McNutt. Only one of these affidavits is material to the contested issues. It reads, in pertinent part: Although Gregor submitted a brief in opposition to Southern Energy's motion to compel arbitration, she did not submit any evidentiary material in opposition to Southern Energy's motion. Following argument of counsel, the trial court entered an order stating, in pertinent part, as follows: Southern Energy appealed. On appeal, Southern Energy contends that the trial court erred in denying its motion to compel arbitration. Gregor argues that we should affirm the trial court *81 on two theories. The first is that Gregor never made any agreement to arbitrate. The second theory is that the Magnuson-Moss WarrantyFederal Trade Commission Improvement Act (Magnuson-Moss Act), 15 U.S.C. § 2301 et seq., invalidates the arbitration provisions in the Southern Energy warranty. One of Gregor's arguments in support of her theory that she never made any agreement to arbitrate is that the affidavit of Don McNutt is "inadmissible hearsay" inasmuch as "no copies of any documents allegedly signed by Gregor were attached to this affidavit or submitted for the Court's consideration." Indeed, neither the warranty tickets nor the "books and records of Southern Energy Homes, Inc." to which Don McNutt's affidavit refers were submitted to the trial court for its consideration regarding Southern Energy's motion to compel arbitration. Southern Energy, however, argues that Gregor's failure to raise this hearsay challenge to the McNutt affidavit before the trial court forecloses consideration of this challenge by this Court. On the one hand, this Court can affirm the ruling of a trial court for any valid reason, even one not presented to or considered by the trial court. Premiere Chevrolet, Inc. v. Headrick, 748 So. 2d 891 (Ala.1999); Southern United Fire Ins. Co. v. Knight, 736 So. 2d 582 (Ala.1999); Morrison v. Franklin, 655 So. 2d 964 (Ala. 1995); McKenzie Methane Corp. v. M-W Drilling, Inc., 653 So. 2d 982 (Ala.1995); Smith v. Equifax Servs., Inc., 537 So. 2d 463 (Ala.1988). On the other hand, the particular case now before us presents a compelling reason of fundamental fairness not to consider Gregor's belated challenge to the McNutt affidavit. Had Gregor challenged the affidavit before the trial court on the ground that the affidavit violated the hearsay rule or on the more apt ground that it violated the best evidence rule by presenting the substance of documents not in evidence without proving that those documents were lost, destroyed, or otherwise unavailable, Southern Energy likely could have remedied the defect simply by introducing its books and records as business records under Rule 803(6), Ala. R. Evid., and introducing the warranty tickets as Gregor's admissions under Rule 801(d)(2), Ala. R. Evid. Our considering Gregor's belated challenge to the affidavit would unfairly deprive Southern Energy of such an opportunity to remedy the defect. Our recent case of Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131 (Ala.2000), addresses and defeats the remaining aspects of Gregor's two theories for affirming the denial of Southern Energy's motion to compel arbitration: Therefore, on the authority of Ard, supra, we reverse the order denying Southern Energy's motion to compel arbitration and remand the cause to the trial court with instructions to vacate that order and to enter an order granting the motion, staying the court proceedings, and compelling arbitration. REVERSED AND REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and MADDOX, LYONS, and BROWN, JJ., concur. SEE, J., concurs specially. HOUSTON, COOK, JOHNSTONE, and ENGLAND, JJ., dissent. SEE, Justice (concurring specially). I concur with the main opinion, but write specially to address the issue of the plaintiffs' challenge, raised for the first time on appeal, to the affidavit of Don McNutt. I agree that this Court should not consider the plaintiffs' belated challenge to the affidavit, and, in fact, I believe that this Court cannot consider the plaintiffs' belated challenge. In the trial court, the plaintiffs did not object to the affidavit or move to strike it. Consequently, they waived any challenge to the admissibility of the affidavit, and, thus, failed to preserve that issue for this Court to review. See Carruth v. Pittway Corp., 643 So. 2d 1340, 1342 (Ala. 1994) ("[A] party challenging the admissibility of [an affidavit] must properly object to it; a failure to properly object in the trial court to the admissibility of such evidence results in a waiver of any objection to this Court's consideration of that evidence in reviewing a summary judgment."); McMillian v. Wallis, 567 So. 2d 1199, 1205 (Ala.1990) (holding that defendant-appellees waived any objection to this Court's consideration of evidence contained in an affidavit submitted by the *83 plaintiff-appellant in opposition to the defendant-appellees' motions for summary judgment because the defendant-appellees filed no motion to strike and entered no objections to that affidavit). Although this Court can affirm a trial court's judgment on any valid legal ground, even one raised for the first time on appeal, that ground must be supported by the record. As this Court stated in McMillan, Ltd. v. Warrior Drilling & Engineering Co., 512 So. 2d 14, 25 (Ala.1986): "[A]n appellee, though he files no cross-appeal or cross-petition, may offer in support of his judgment any argument that is supported by the record, whether it was ignored by the court below or flatly rejected." (Quotation marks omitted; citations omitted; emphasis added.) Therefore, this Court cannot consider the plaintiffs' challenge, unsupported by the record and raised for the first time on appeal, to the admissibility of the affidavit, even though that challenge is made in support of the trial court's judgment. COOK, Justice (dissenting). I dissent for the same reasons Justice Johnstone expressed in his dissenting opinion in Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131 (Ala.2000). JOHNSTONE, Justice (dissenting). I respectfully dissent for the reasons stated in my dissent in Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131 (Ala. 2000). ENGLAND, J., concurs.

June 30, 2000

ee59067a-5c61-4e61-813a-5bce484736a6

Hays Corp. v. Bunge Corp.

777 So. 2d 62

1990375

Alabama

Alabama Supreme Court

777 So. 2d 62 (2000) HAYS CORPORATION v. BUNGE CORPORATION. 1990375. Supreme Court of Alabama. April 28, 2000. Modified on Denial of Rehearing July 14, 2000. *63 Susan S. Wagner of Berkowitz, Lefkovits, Isom & Kushner, P.C., Birmingham, for appellant. Robert H. Harris of Harris, Caddell & Shanks, P.C., Decatur, for appellee. HOUSTON, Justice. The plaintiff Hays Corporation appeals from a summary judgment entered in favor of the defendant Bunge Corporation. Viewed in the light most favorable to Hays, the nonmovant in regard to the summary-judgment motion, the evidence suggests the following facts: In December 1997, Hays, a Georgia corporation, entered into a contract with Bunge to provide construction services (labor and material) to build certain facilities at the Bunge plant site in Decatur, Alabama; the parties entered into that contract in Alabama. When the contract was executed and while Hays was performing under the contract, Hays was not qualified to do business in Alabama, as Ala.Code 1975, § 10-2B-15.01, required it to be. Bunge did not pay Hays what Hays claimed it was due under the contract; Hays sued Bunge, seeking a monetary recovery from Bunge on theories of breach of contract, open account, quantum meruit, and unjust enrichment and seeking to impose a materialman's or mechanic's lien on Bunge's property. Bunge moved to dismiss the action on the ground that Hays was not qualified to do business in Alabama. The trial court treated the motion to dismiss as a motion for a summary *64 judgment and set it for a hearing. In response to motions filed by Hays, the court extended Hays's time for submitting responsive materials and three times it extended the time for the hearing. Six days before the third hearing date, Hays attempted to amend its complaint to add a fraud claim and to challenge the constitutionality of Ala.Code 1975, § 10-2B-15.02.[1] The trial court did not allow the amendment, and it granted Bunge's motion for a summary judgment. Hays appeals from the summary judgment. Alabama Code 1975, § 10-2B-15.02, bars a foreign corporation not qualified to do business in Alabama from enforcing in an Alabama court a contract it made in Alabama. The statute is penal in nature. Al Sarena Mines, Inc. v. South-Trust Bank of Mobile, 548 So. 2d 1356, 1364 (Ala.1989); Burnett v. National Stonehenge Corp., 694 So. 2d 1276, 1279 (Ala. 1997); Freeman Webb Invs., Inc. v. Hale, 536 So. 2d 30, 31 (Ala.1988). An exception to this bar has been recognized for businesses engaged in interstate commerce. The Commerce Clause of the United States Constitution protects businesses engaged in interstate commerce from the bar of § 10-2B-15.02. Stewart Mach. & Eng'g Co. v. Checkers Drive In Restaurants of N. Am., 575 So. 2d 1072, 1074 (Ala.1991). We look to the facts of each case to determine whether the contract involves interstate commerce or intrastate commerce. Green Tree Acceptance, Inc. v. Blalock, 525 So. 2d 1366, 1370 (Ala.1988). The construction contract at issue here involves intrastate commerce. "`A construction contract supplying both material and labor is an example of the type of contract that is considered intrastate.'" Building Maintenance Personnel, Inc. v. International Shipbuilding, Inc., 621 So. 2d 1303, 1305 (Ala.1993) (quoting Green Tree Acceptance, Inc. v. Blalock, 525 So. 2d at 1370-71, which cited Sanjay, Inc. v. Duncan Constr. Co., 445 So. 2d 876, 879 (Ala.1983), for the proposition that the "sale, delivery, and supply of labor and management to construct prefabricated building is intrastate activity"). See also, Gray-Knox Marble Co. v. Times Bldg. Co., 225 Ala. 554, 144 So. 29 (1932); Calvert *65 Iron Works, Inc. v. Algernon Blair, Inc., 284 Ala. 655, 227 So. 2d 424 (1969); Stewart Machine & Eng'g Co. v. Checkers Drive In Restaurants of N. Am., Inc., supra; Sanwa Business Corp. v. G.B. "Boots" Smith Corp., 548 So. 2d 1336 (Ala.1989). Thus, the summary judgment was proper as to the breach-of-contract claim. The summary judgment was also proper as to the other claims stated in Hays's complaint. Sanjay, Inc. v. Duncan Constr. Co., 445 So. 2d at 880; Green Tree Acceptance, Inc. v. Blalock, 525 So. 2d at 1372; Burnett v. National Stonehenge Corp., 694 So. 2d at 1279. The trial court did not abuse its discretion in disallowing Hays's amendment to its complaint. Puckett, Taul & Underwood, Inc. v. Schreiber Corp., 551 So. 2d 979, 984 (Ala.1989); Government St. Lumber Co. v. AmSouth Bank, 553 So. 2d 68, 70 (Ala.1989). The summary judgment is affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. COOK and SEE, JJ., dissent. COOK, Justice (dissenting). Hays Corporation and Bunge Corporation are both foreign corporations. The trial court held that Ala.Code, 1975 § 10-2B-15.02(a), the "Door-Closing Statute," barred Hays's action. Six days before the hearing scheduled on Bunge's summary-judgment motion, Hays attempted to amend its complaint to add, among other claims, a fraud claim. The trial court struck that amendment, stating: "The Plaintiff's attempted inclusion of Counts Five and Six through the filing of its First Amendment to Complaint constitutes a veiled effort to spin tort and declaratory relief claims from an action that is clearly ex contractu." This was essentially a contract for Hays to provide services or labor in Alabama. Thus, the trial court correctly concluded that the transaction at issue was intrastate in nature. Furthermore, the purported fraud claim was merely a rehash of the basic contract claims. The reservation I have about this case, however, is the argumententirely unaddressed by the majority opinionthat the proper remedy would have been to dismiss the action without prejudice. That approach would have given Hays the opportunity to refile this action in a state in which Bunge does businessa state in which its contract claims might find a more favorable climate, and, in that connection, where Hays would avoid the potential statute-of-limitations problems attendant upon a dismissal with prejudice. Hays argues that the Door-Closing Statute does not require a dismissal with prejudice, pointing out that it states only that "[a] foreign corporation transacting business in this state without a certificate of authority ... may not maintain a proceeding in this state." (Emphasis added.) Significantly, neither Bungenor the majority responds to, or mentions, this argument. I am unaware of any reason why one foreign corporation cannot sue another foreign corporation outside the State of Alabama on the basis of a transaction entered into in Alabama and involving intrastate activities. I dissent from the affirmance of the summary judgment. I think the Court should reverse that judgment and remand with instructions for the circuit court to dismiss Hays's action, without prejudice. SEE, J., concurs. HOUSTON, Justice. APPLICATION OVERRULED. COOK, SEE, and LYONS, JJ., dissent. [Justice COOK modifies his special writing of April 28, 2000.] *66 LYONS, Justice (dissenting). I respectfully disagree with Justice Cook's dissenting opinion on original deliverance where he contends that we should remand for a dismissal "without prejudice." However, I would grant the application for rehearing and modify the opinion to limit the scope of the "with-prejudice" aspect of the dismissal and to explain that the dismissal is with prejudice to the right to bring a subsequent action in the courts of this state. Otherwise, the Full Faith and Credit Clause of Art. IV, § 1, of the United States Constitution alone might require sister states to enforce the with-prejudice dismissal as a defense to an action filled outside this state. Whether a sister state must apply Alabama public policy in a subsequent action should be resolved on considerations other than the Full Faith and Credit Clause. [1] Since 1901, the Constitution of Alabama has required foreign corporations to properly qualify before doing any business in this state. See § 232, Constitution of 1901, as amended by Amendment 473. By the force of this constitutional provision, contracts of nonqualified foreign corporations entered into in Alabama are void. Computaflor Co. v. N.L. Blaum Constr. Co., 289 Ala. 65, 265 So. 2d 850 (1972). Since at least the adoption of the 1923 Code, the statutes of Alabama have declared contracts by nonqualified foreign corporations, entered into in Alabama, to be void and unenforceable by the foreign corporation in the courts of Alabama. Code of Alabama 1923, § 7220; Title 10, § 191, Code of Alabama 1940; § 10-2-254, Ala.Code 1975; § 10-2B-15.02, Ala.Code 1975, as amended. This policy was briefly relaxed by § 15.02(c) of Act No. 94-245, enacted on March 21, 1994, to be effective January 1, 1995. Act No. 94-245 substantially revised the business-corporation laws of Alabama. Section 15.02(c) of the Act included a provision that permitted a stay of any judicial proceeding by a nonqualified foreign corporation pending its proper qualification. However, when the Legislature next met in 1995, it revisited § 15.02(c) of Act No. 94-245, which had been codified as § 10-2B-15.02. By Act No. 95-663, it repealed § 10-2B-15.02 as enacted by Act No. 94-245, and enacted a new § 10-2B-15.02. In effect, Act No. 95-663 eliminated the provision that permitted a stay of judicial proceedings to permit qualification. Thus, by Act No. 95-663 the Legislature reimposed the same penal provisions of nonqualification of foreign corporations that had been a part of the public policy of Alabama since 1901. While it may be conceded that the law of Alabama declaring void all contracts of nonqualified foreign corporations entered into in Alabama is penal in nature (Stewart Machine & Engineering Co. v. Checkers Drive In Restaurants of North America, Inc., 575 So. 2d 1072, 1075) (harshness of rule recognized); Green Tree Acceptance, Inc. v. Blalock, 525 So. 2d 1366, 1370, 1371 (Ala.1988) (application of rule required despite harsh provisions), this policy is not an accidental part of the law of Alabama; it has been deliberately fashioned.

July 14, 2000

f30c9500-65d1-4b3f-94ec-68b9eaf18472

Ex Parte Howle

776 So. 2d 133

1982205

Alabama

Alabama Supreme Court

776 So. 2d 133 (2000) Ex parte Mardis HOWLE. (Re Lanier Harris Tyndal v. Mardis Howle.) 1982205. Supreme Court of Alabama. June 23, 2000. James M. Fullan, Jr., of Fullan & Fullan, Birmingham, for petitioner. Frederick A. Erben of Beddow, Erben & Bowen, P.A., Birmingham, for respondent. PER CURIAM. The circuit court entered a summary judgment in favor of Mardis Howle on an assault-and-battery claim brought against him by his former wife, Lanier Harris Tyndal. The Court of Civil Appeals reversed the summary judgment. See Tyndal v. Howle, 776 So. 2d 128 (Ala.Civ.App. 1999). We granted Mardis Howle's petition for certiorari review. Because we hold that the claim is barred by the doctrine of res judicata and that the trial court, therefore, correctly entered a summary judgment in favor of Howle, we reverse the judgment of the Court of Civil Appeals. Tyndal and Howle married in June 1991 and separated in June 1994. In July 1994, Tyndal sued Howle in the Jefferson Circuit Court, seeking a divorce and also seeking damages for an alleged assault and battery that she said had occurred on June 30, 1994. She demanded a jury trial on her assault-and-battery claim. The circuit judge severed that claim and transferred it from the "domestic relations division" *134 of the circuit court to the "civil division." At the divorce trial, Tyndal testified that on June 30, 1994, Howle hit her and injured her.[1] In July 1996, the domestic-relations judge entered a final judgment of divorce, awarding Tyndal $5,000 of the proceeds from the sale of the marital home, $7,500 in alimony, and "$1,500 for any dental and/or doctor bills incurred by her as a result of the [husband']s striking [her] on or about the date of their separation [namely, June 30, 1994]." The judgment states that the lump-sum alimony award was to serve "as a full settlement of all claims now existing between [the] parties." Tyndal moved to alter, vacate, or amend the judgment. The domestic-relations division judge denied that motion, and she appealed to the Court of Civil Appeals, arguing, among other things, that the domestic-relations judge should have stricken the language referring to the alimony as "a full settlement and satisfaction of all claims," because her assault-and-battery claim was still pending in the civil division of the circuit court. Howle v. Howle, 699 So. 2d 177, 179 (Ala.Civ.App.1997). The Court of Civil Appeals affirmed the judgment, concluding that "the wife may have a viable claim for assault and battery separate from her divorce action." The Court of Civil Appeals "read [the language the wife objected to] as a reference to only those claims still before the judge after the assault and battery claim had been severed." Id. The Court of Civil Appeals further stated that "[w]hether [the assault-and-battery] claim may proceed or whether it is barred by the doctrine of res judicata is to be determined by the judge to whom that claim is assigned, and not by the judge who presided over the divorce matters." Id. In August 1997, Howle paid Tyndal the amounts he owed her pursuant to the judgment, including the $1,500 for medical expenses resulting from the battery. Tyndal accepted those payments. Howle moved for a summary judgment on Tyndal's assault-and-battery claim pending before the civil-division judge, arguing that that claim was barred by the doctrine of res judicata or the doctrine of accord and satisfaction. The civil-division judge granted Howle's motion. Tyndal appealed to this Court, and this Court transferred the appeal to the Court of Civil Appeals. The Court of Civil Appeals reversed the circuit court's summary judgment, holding that Tyndal's assault-and-battery claim was not barred by the doctrine of res judicata or the doctrine of accord and satisfaction.[2] That court reasoned that the doctrine of res judicata did not apply because the trial court had not "adjudicated all of the issues related to the wife's [assault-and-battery] claim." Tyndal v. Howle, 776 So. 2d at 130. That court further reasoned that the doctrine of accord and satisfaction did not apply because the parties did not settle Tyndal's assault-and-battery claim by reaching a meeting of the minds. Id. at 131. Howle argues that the Court of Civil Appeals erred in reversing the circuit court's judgment because, he argues, Tyndal's assault-and-battery claim is barred by the doctrine of res judicata. We agree.[3] *135 This Court has held that "[f]or a claim to be barred by the doctrine of res judicata, there must be `(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.'" Boh Bros. Constr. Co. v. Nelson, 730 So. 2d 132, 133 (Ala.1999) (quoting Parmater v. Amcord, Inc., 699 So. 2d 1238, 1240 (Ala. 1997)). The first three elements are clearly satisfiedthe divorce judgment is a prior judgment on the merits rendered by a court of competent jurisdiction in an action between the same parties. Thus, the issue is whether Tyndal's assault-and-battery claim was presented in the divorce action. This Court has considered whether a former wife's tort claim against her former husband was barred under the doctrine of res judicata after a final judgment of divorce. In Ex parte Harrington, 450 So. 2d 99 (Ala.1984), a man petitioned this Court for a writ of mandamus or other relief, seeking to bar his former wife from pursuing an assault-and-battery claim against him. 450 So. 2d at 100. The man argued that the former wife should have been required to joinin her divorce action her assault-and-battery claim, which arose out of his shooting her and rendering her a paraplegic. Id. at 101. This Court held that "[t]he mere fact that plaintiff included in her divorce action a charge that defendant assaulted her does not make the divorce action [an] action identical to the assault and battery action." Id. at 101-02. Rather, this Court reasoned, the tort claim could be brought in a separate action if "substantially different evidence supported each of [the] plaintiff's actions." Id. at 101. Later in the same year it decided Harrington, this Court decided Jackson v. Hall, 460 So. 2d 1290 (Ala.1984), holding that a former wife's assault-and-battery claim was barred because she had accepted $2,300 "in full settlement of all claims between the parties." 460 So. 2d at 1292. This Court reiterated that the fourth element of res judicatathat "the same cause of action [is] present in both suits"is met when "substantially the same evidence supports both actions." Id. Similarly, in Weil v. Lammon, 503 So. 2d 830 (Ala.1987), this Court held that a former wife's fraud claim against her former husband was barred. This Court reasoned that because the former wife had "asserted the alleged fraud and misrepresentation of her husband in support of her claim for alimony," she could not "thereafter bring an action for damages based upon the same allegations." 503 So. 2d at 832. In Weil, this Court relied on Jackson, supra, stating that in Jackson this Court had held that "a prior divorce judgment was an absolute bar to a subsequent tort action for damages based upon an alleged assault and battery which had been one of the grounds for the divorce." Id. at 832. In Smith v. Smith, 530 So. 2d 1389 (Ala. 1988), this Court held that a former wife was estopped from pursuing her assault-and-battery claim against her former husband. 530 So. 2d at 1391. The parties had reached a settlement agreement whereby they "agreed to ask the court to withhold the granting of a final decree of divorce so that [the former wife] could remain covered by [the former husband's] insurance policy." Id. at 1390. Because, in the divorce settlement, the wife accepted compensation in the form of medical coverage for injuries related to the husband's alleged battery of her, this Court held that she could not later pursue her assault-and-battery claim, even though she had filed that claim before the final judgment of divorce was entered. Id. at 1391. In Smith, this Court stated that it had not overruled Harrington in Weil, but that the Harrington principlethat a divorce judgment does not necessarily preclude a subsequent tort action by one former spouse against the otherstill applied "where there has not been a settlement of all claims by the parties, or a claim fully litigated in a divorce case that had proceeded to a final judgment." Id. *136 In Coleman v. Coleman, 566 So. 2d 482 (Ala.1990), this Court held that a former wife's claim alleging "negligent or wanton transmission of a venereal disease," 566 So. 2d at 483, was barred because the former wife knew during the divorce proceedings that her husband had given her a venereal disease, had used that fact "as leverage in her divorce settlement," 566 So. 2d at 485, and had expressly released her former husband "from any and all claims and demands ... for the settlement of property rights," 566 So. 2d at 483. This Court stated that there was no "general rule that a divorce action routinely precludes a former spouse from suing the other in tort based upon acts that occurred during the marriage" but that "each case must be examined on its own facts and circumstances." Id. at 485. This Court further stated that the former wife could have preserved her claim for damages by expressly reserving that claim from the settlement. Id. Also, this Court expressly approved the procedure of severing a spouse's tort claim from a divorce action so that the tort claim can be tried to a jury. Id. at 486. The present case presents a unique situation. When the divorce court severs an assault-and-battery claim from a divorce action, but in the divorce trial the spouse seeking the divorce nevertheless introduces evidence indicating that the other spouse hit her and injured her, the divorce court awards the injured spouse compensation for medical expenses relating to that injury, and the injured spouse accepts the other spouse's payment of that award, is the injured spouse's assault-and-battery claim barred under the doctrine of res judicata? On the unique facts of this case, we conclude that Tyndal's assault-and-battery claim is barred under the doctrine of res judicata. First, Tyndal asserted, in support of her claim for alimony, that Howle had battered her, and she thereby made the alleged battery an issue in the divorce action. See Weil, 503 So. 2d at 831-32 (holding that when one spouse makes the alleged tortious conduct of the other spouse "an issue in the divorce action, ... such conduct will not supply the basis for a subsequent action for damages"). Second, the divorce court ordered Howle to pay Tyndal $1,500 to compensate her for medical expenses she had incurred as a result of the battery, and she accepted his payment. The general rule against claim-splitting prohibits Tyndal from recovering medical expenses in one action and additional damages in a separate action based on the same evidence that supported the award of compensation for medical expenses. See Harrington, 450 So. 2d at 100 (stating that "`a "cause of action" grows out of the wrongful act, and not the various forms of damages that may flow from the single wrongful act'" (quoting Terrell v. City of Bessemer, 406 So. 2d 337, 339 (Ala.1981))). Tyndal reserved the issue of the alleged battery and that issue was severed; Tyndal, nevertheless, raised that issue in the divorce action and, as a result of the judgment in that action, accepted payment of medical expenses related to the alleged battery. Had she adhered to her reservation of the issue of the alleged battery, this would be a different case. However, on the facts of this case, the trial court correctly entered the summary judgment in favor of Howle on Tyndal's assault-and-battery claim because that claim is barred by the doctrine of res judicata. Therefore, we reverse the judgment of the Court of Civil Appeals and remand the case for that court to enter a judgment consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] Although Tyndal testified to other alleged batteries in October 1993 and April 1994, her assault-and-battery claim related only to the June 1994 incident. [2] Judge Monroe filed a dissenting opinion, in which Judge Yates concurred, arguing that Tyndal's assault-and-battery claim was barred by the doctrine of res judicata because: (1) in the divorce action, Tyndal testified in great detail about the alleged battery and her resulting injuries, and (2) the trial court awarded the wife $1,500 for medical expenses resulting from the alleged battery. [3] Howle also argues that Tyndal's assault-and-battery claim is barred by the doctrine of accord and satisfaction. We need not address that argument.

June 23, 2000

d31caa1f-61ca-4225-8349-d6b33ba9b219

Godwin v. State Ex Rel. McKnight

784 So. 2d 1014

1980389

Alabama

Alabama Supreme Court

784 So. 2d 1014 (2000) Robert L. GODWIN v. STATE ex rel. Charles N. McKNIGHT. 1980389. Supreme Court of Alabama. June 30, 2000. Rehearing Denied August 18, 2000. Robert L. Godwin, Jr., appellant, pro se. L. Gilbert Kendrick, asst. general counsel, Alabama State Bar, for appellee. HOUSTON, Justice.[1] Robert Larry Godwin, the appellant, has served since 1993 as the executor of the estate of his deceased daughter Selena Godwin. On April 30, 1997, Mr. Godwin filed a complaint in the Circuit Court of Pike County, styled Robert L. Godwin, as Executor and Individually v. Barbara B. Godwin, case number CV-97-107. Charles Edmondson, Barbara Godwin's attorney, notified the State Bar Association that Mr. Godwin was apparently engaged in the unauthorized practice of law because one of the counts in Mr. Godwin's complaint stated claims on behalf of Selena Godwin's estate, claims for the recovery of chattels in specie and for specific performance of a contract.[2] The State Bar contacted Mr. Godwin by letter and asked him to explain his activities. Mr. Godwin admitted in a reply letter, dated May 24, 1997, that he was not represented by counsel when he included in his complaint the count filed on behalf of Selena Godwin's estate. The Unauthorized Practice of Law Committee (UPLC) of the Alabama State Bar considered Mr. Godwin's actions, on June 20, 1997. The UPLC decided to send him a "Cease and Desist Affidavit."[3] This *1015 affidavit was sent with a cover letter on July 9, 1997. Mr. Godwin never responded to the letter and never signed the affidavit. On October 3, 1997, the UPLC voted to file a quo warranto[4] complaint against Mr. Godwin, and the State Bar filed such a complaint on February 17, 1998, in the Circuit Court of Pike County. On September 15, 1998, Mr. Godwin filed a response to the complaint. On October 27, 1998, the State Bar moved for a summary judgment. On November 13, 1998, the trial court held a hearing on the summary-judgment motion and at that hearing heard oral testimony. At the conclusion of the testimony and the arguments, the court entered a judgment, finding that Mr. Godwin had engaged in the unauthorized practice of law and enjoining him from further activity that would constitute the unauthorized practice of law. Toward the end of the hearing, the trial court adjourned for 15 minutes and ordered Mr. Godwin to file a notice of withdrawal from case CV-97-107. The court imposed no sanctions upon Mr. Godwin besides the injunction. Mr. Godwin now appeals from the injunction. We affirm. The uncontroverted evidence is that Mr. Godwin filed a complaint that included a count stated on behalf of Selena Godwin's estate. Mr. Godwin admitted in his testimony at the summary-judgment hearing that the estate was not represented by an attorney when he included the count in his complaint. Although the law allows Mr. Godwin to file complaints pro se, it does not allow him to file a complaint on behalf of anyone else, even an estate of which he is the executor. "[T]he practice of law is defined as follows: Whoever, (1) In a representative capacity appears as an advocate or draws papers, pleadings or documents, or performs any act in connection with proceedings pending or prospective before a court ... is practicing law." Ala.Code 1975, § 34-3-6(b). The purpose of § 34-3-6 is to ensure that laymen do not serve others in a representative capacity in areas that require the skill and judgment of a licensed attorney. Porter v. Alabama Ass'n of Credit Executives, 338 So. 2d 812 (Ala. 1976). See generally, Armstrong v. Brown Service Funeral Home West Chapel, 700 So. 2d 1379 (Ala.Civ.App.1997); Derek A. Denckla, The Unauthorized Practice of Law: an Overview of the Legal and Ethical Parameters, 67 Fordham L.Rev. 2581 (1999); L. Bruce Ables, Unauthorized Practice of Law, 56 Ala. Law. 288 (1995) (documenting Alabama's rampant problem with the unauthorized practice of law). Mr. Godwin makes a number of arguments concerning the alleged dubiousness of requiring the State to license attorneys, and he raises unfounded doubts about the constitutionality of Ala.Code 1975, § 34-3-6. However, if § 34-3-6 needs to be amended to allow nonlicensed attorneys to represent clients and practice law, the amendment must be made by the Legislature. It is undisputed that Mr. Godwin practiced law without a law license. He was not punished, but was simply enjoined from doing it in the future. The judgment of the trial court is affirmed. AFFIRMED. HOOPER, C.J., and SEE, BROWN, and ENGLAND, JJ., concur. HOUSTON, J., concurs specially. *1016 HOUSTON, Justice (concurring specially). I own artworks painted by the appellant (`A News Vendor in London'; `A View of Toledo, Spain'; and `Spanish Peasant Leading A Donkey'); and I own ceramics created by the appellant. I purchased them at Eufaula, Alabama, art shows many years ago. I have great respect for Robert Larry Godwin as an artist and as an individual. I regret that he does not now have respect for the profession of which I am a member. I have meticulously and sensitively studied the briefs and searched the record; I feel assured that Mr. Godwin received all the process he was due under the Constitutions of the United States and the State of Alabama and the laws of Alabama. I have attached to this special concurrence, as Appendixes A, B, C, D, and E, copies of four handdrawn ink prints by Robert Larry Godwin; these copies were incorporated in Mr. Godwin's brief. They clearly demonstrate his disdain for my profession. I disagree with his beliefs; however, I will do all in my power to assure that he has the freedom to express his beliefs. *1017 *1018 *1019 *1020 *1021 [1] This case was originally assigned to another Justice on this Court; it was reassigned to Justice Houston on May 2, 2000. [2] The complaint included two other counts that concerned Mr. Godwin's personal property. Those two counts are not at issue here because Mr. Godwin has every right to file such counts pro se. [3] A "Cease and Desist Affidavit" is a form document sent by the UPLC to persons found to be engaged in the unauthorized practice of law. That person is supposed to sign the form under oath as an affidavit, and return it to the UPLC. [4] "Quo warranto [Law Latin `by what authority']" is defined as: "A common-law writ used to inquire into the authority by which a public office is held or a franchise is claimed." Black's Law Dictionary 1264 (7th ed.1999).

June 30, 2000

f022aad1-5628-4af2-b19d-ad3c7e9dbfbc

Southern Energy Homes, Inc. v. Ard

772 So. 2d 1131

1971998

Alabama

Alabama Supreme Court

772 So. 2d 1131 (2000) SOUTHERN ENERGY HOMES, INC. v. Michael ARD and Marsha Ard. 1971998. Supreme Court of Alabama. June 2, 2000. *1132 John Martin Galese and W. Scott Simpson of John Martin Galese, P.A., Birmingham, for appellant. Stephen T. Etheredge of Buntin, Etheredge & Dowling, L.L.C., Dothan, for appellees. PER CURIAM. The plaintiffs Michael Ard and Marsha Ard purchased a manufactured home, manufactured by the defendant Southern Energy Homes, Inc. The Ards' agreements, disputes, and claims against the retailer who sold them this manufactured home are not material to the issues dispositive of this appeal. The Ards filed a civil action against both the retailer and Southern Energy. Only Count II (as amended), Count III, and Count V state discernible claims against Southern Energy. Count II (as amended) alleges in pertinent part: Count III alleges, in pertinent part that "the defendant, Southern Energy Homes, Inc., either negligently, willfully, wantonly, or intentionally constructed a manufactured home for the Ards in a deficient manner." Count III includes a catalog of specific defects in the manufactured home. While Count III also claims against "defendants" (plural) for certain "false and fraudulent misrepresentations," Count III does not allege any representations made by Southern Energy. Finally, Count V alleges, in pertinent part, that Southern Energy "negligently, willfully, or wantonly installed and wired a furnace in a manufactured home for the plaintiffs in a deficient manner" and thereby caused the furnace to "catch on fire resulting in damage to the plaintiffs' home." Southern Energy moved the trial court to stay the litigation and to compel arbitration. In support of its motion, it submitted a document entitled "SOUTHERN ENERGY WARRANTY LIMITED ONE-YEAR/FIVE-YEAR WARRANTY" containing the language of an arbitration agreement between the manufacturer and the purchaser. The Ards did not file any objection to the submission of this document. Thus, the record establishes Southern Energy's prima facie case for the existence of the agreement to arbitrate. TranSouth Financial Corp. v. Bell, 739 So. 2d 1110 (Ala.1999). Southern Energy also submitted two affidavits by Don McNutt. Only one of these affidavits is material to the contested issues. It reads, in pertinent part: The only evidentiary material submitted by the Ards in opposition to the motion to stay and to compel arbitration is an exhibit consisting of the 19-page "Home Owner's Manual" issued by Southern Energy. This Home Owner's Manual is the source of the same "Southern Energy Warranty Limited One-Year/Five-Year Warranty" submitted by Southern Energy itself. Pages 4 and 5 of the manual contain this warranty material. This warranty material includes the following arbitration language: This language encompasses all of the claims alleged by the Ards against Southern Energy. The Ards did not submit any other exhibits or any affidavit, deposition testimony, or other evidentiary material. The Ards did, however, submit to the trial court a brief presenting their arguments and authorities. While the trial court granted the retailer's motion to compel arbitration, the trial court denied Southern Energy's motion to compel. The order of the trial court in its entirety reads as follows: Southern Energy appealed, and we reverse and remand. The Ards argue that we should affirm the trial court on two theories. The first is that the Ards never made any agreement to arbitrate. The second theory is that the Magnuson-Moss WarrantyFederal Trade Commission Improvement Act (Magnuson-Moss Act), 15 U.S.C. § 1501 et seq., invalidates the arbitration provisions in the Southern Energy warranty. We find both theories invalid for the reasons we will explain. On the one hand, we recognize that parties cannot be required to arbitrate unless they have agreed to arbitrate. 9 U.S.C. § 4 and AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986). On the other hand, the only pertinent evidentiary materials (as distinguished from arguments by counsel) are the Home Owner's Manual containing the warranty and arbitration language and the already-quoted affidavit of Don McNutt. While the Ards' arguments dispute their assent to the arbitration language and attack the effectiveness of the delivery of the arbitration language, no evidentiary materials of record support the Ards in this regard except the absence of any signatures by the parties in the Home Owner's Manual. This absence of evidentiary materials in opposition to arbitration distinguishes this case from the otherwise similar case of Southern Energy Homes, Inc. v. Kennedy, 774 So. 2d 540 (Ala.2000). The Ards are contractually bound to the arbitration provisions for two reasons. First, the affidavit of Don McNutt establishes, without contradiction, that the Ards have accepted the benefits of the warranty containing the arbitration provisions. This acceptance constitutes the Ards' acceptance of the arbitration provisions themselves. Rush v. Atomic Electric Co., 384 So. 2d 1067 (Ala.1980). Second, the Ards have sued Southern Energy on the theory, among others, of express warranty. The only express warranty included in the evidentiary materials is the one containing the arbitration provisions. A plaintiff cannot simultaneously claim the benefits of a contract and repudiate its burdens and conditions. Value Auto Credit, Inc. v. Talley, 727 So. 2d 61 *1135 (Ala.1999); Infiniti of Mobile, Inc. v. Office, 727 So. 2d 42 (Ala.1999); Georgia Power Co. v. Partin, 727 So. 2d 2 (Ala. 1998); Delta Constr. Corp. v. Gooden, 714 So. 2d 975 (Ala.1998); Ex parte Dyess, 709 So. 2d 447 (Ala.1997). In further attack against the existence of an agreement to arbitrate, the Ards argue that the arbitration provisions are inconspicuous, in that the caption does not contain the word arbitration and the table of contents of the Home Owner's Manual does not include the arbitration provisions. Because, in all other respects, the arbitration language is just as conspicuous as the other provisions of the warranty, however, we find that it is a binding part of the warranty. See Mall, Inc. v. Robbins, 412 So. 2d 1197 (Ala.1982), and Gaylord Department Stores of Alabama, Inc. v. Stephens, 404 So. 2d 586 (Ala.1981). The Ards, in support of their theory that the Magnuson-Moss Act invalidates the arbitration provisions, cite Wilson v. Waverlee Homes, Inc., 954 F. Supp. 1530 (M.D.Ala.1997), Boyd v. Homes of Legend, Inc., 981 F. Supp. 1423 (M.D.Ala. 1997), and Rhode v. E & T Investments, Inc., 6 F. Supp. 2d 1322 (M.D.Ala.1998). Indeed, this very Court, in Southern Energy Homes, Inc. v. Lee, 732 So. 2d 994 (Ala. 1999), cites both Wilson and Boyd with approval and reaches the same holding that the Magnuson-Moss Act invalidates arbitration provisions in a written warranty issued by a manufacturer of consumer goods. Justice See of this Court, however, filed a scholarly and thorough dissent in Lee. We now opine that Justice See's dissent in Lee is correct and the majority opinion is incorrect. Therefore, we overrule the majority opinion in Lee and adopt Justice See's dissent. On the rationale of Justice See's dissent in Lee, we hereby hold that the Magnuson-Moss Act does not invalidate arbitration provisions in a written warranty. Because the record establishes the valid formation of the agreement to arbitrate, and the arbitration provisions validly and legally bind the Ards, the trial court erred in denying Southern Energy's motion to compel arbitration. Accordingly, the order denying this motion to compel arbitration is reversed and the cause is remanded to the trial court with instructions to vacate that order and to enter an order granting the motion, staying the court proceedings, and compelling arbitration. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, SEE, LYONS, and BROWN, JJ., concur. HOUSTON, COOK, JOHNSTONE, and ENGLAND, JJ., dissent. HOUSTON, Justice (dissenting). See my special concurrence in Southern Energy Homes, Inc. v. Lee, 732 So. 2d 994, 1000-04 (Ala.1999). JOHNSTONE, Justice (dissenting). I respectfully dissent. This Court should not overrule Southern Energy Homes, Inc. v. Lee, 732 So. 2d 994 (Ala. 1999), and should not reverse the order of the trial court denying the motion of Southern Energy to compel arbitration. In March 1996, the Ards purchased from Southland Quality Homes, Inc., ("Southland Homes") a mobile home manufactured by Southern Energy. The Ards signed a "MANUFACTURED HOME RETAIL INSTALLMENT CONTRACT AND SECURITY AGREEMENT" between them and Southland Homes that contains an arbitration provision: The retail installment contract identifies the make of the mobile home as "1996 Southern Energy." The Ards also signed a separate arbitration agreement, ostensibly between them and Southland Homes, providing: This arbitration agreement is not signed by an employee or officer of Southland Homes. When the mobile home was delivered, inside was a Homeowner's Manual which includes an express warranty by Southern Energy. The express warranty contains the following provision: The express warranty is not signed by Southern Energy or the Ards. In September 1997, the Ards sued Southland Homes and Southern Energy in the Houston County Circuit Court. They asserted claims of breach of contract, breach of warranty, fraud, and negligence against Southland Homes. The Ards asserted distinct claims of breach of express warranty and negligent, wanton, or willful manufacture against Southern Energy. Southern Energy filed a motion to stay the action and to compel arbitration of the Ards' claims. Southern Energy grounded its motion on the arbitration clause found in the express warranty it issued covering the mobile home, and upon the arbitration clause found in the retail installment contract made by the Ards and Southland Homes. Southland Homes likewise filed its own motion to compel arbitration. The Ards filed an opposition to the motions to compel arbitration. They also amended their complaint to state claims pursuant to the Magnuson-Moss WarrantyFederal Trade Commission Improvement Act (Magnuson-Moss Act), 15 U.S.C. § 1501 et seq., against Southland Homes and Southern Energy. The Ards also added *1138 claims of negligent, wanton, or willful installation of a furnace against Southern Energy. The Ards alleged that they notified Southland Homes and Southern Energy of numerous defects in the mobile home and that Southland Homes and Southern Energy failed or refused to correct the defects under the warranty. The Ards requested and received some warranty service from Southern Energy. The trial court entered an order stating, in pertinent part: Southern Energy appeals and raises seven issues: (1) "[w]hether the [Ards] are bound by the arbitration agreement set forth within [Southern Energy's] warranty where the arbitration agreement is sufficiently broad to encompass all the [Ards'] claims"; (2) "[w]hether an arbitration agreement must be signed and be `conspicuous' to be enforceable where such agreement is governed by the Federal Arbitration Act"; (3) "[w]hether the [Ards] are bound by all of the provisions of [Southern Energy's] warranty because [they] accepted service under the warranty and later sued Southern [Energy] alleging a claim of breach of warranty"; (4) "[w]hether the Magnuson-Moss Warranty Act prevents the enforcement of a binding arbitration agreement as to non-Magnuson-Moss claims where such claims do not relate to the warranty in the Act"; (5) "[w]hether the Magnuson-Moss Warranty Act prevents enforcement of a binding arbitration agreement subject to the Federal Arbitration Act as to Magnuson-Moss claims"; (6) "[w]hether the [Ards] should be equitably estopped from opposing the arbitration agreement set forth in the Retail Installment Agreement where Southern [Energy] is specifically mentioned in the Retail Installment Agreement, the language of the Retail Installment Agreement is broad enough to encompass all of the [Ards'] claims, and the [Ards'] claims against Southern [Energy] are sufficiently related to the relationship created by the contract"; and (7) "[w]hether the [Ards] are required to arbitrate their claims against Southern [Energy] based upon the arbitration agreements the [Ards] entered into at the time of the purchase where the [Ards] allege that Southern [Energy] is liable for the acts of Southland Homes." I will address the issues in categories. I first address issue five relating to the effect of the Magnuson-Moss Act on the arbitration provisions. In Southern Energy Homes, Inc. v. Lee, supra, this Court held that the Magnuson-Moss Act "prohibits the inclusion in a written warranty of a *1139 provision calling for binding arbitration." In so holding, this Court adopted the rationale in Wilson v. Waverlee Homes, Inc., 954 F. Supp. 1530 (M.D.Ala.1997), aff'd, 127 F.3d 40 (11th Cir.1997) (table), and Boyd v. Homes of Legend, Inc., 981 F. Supp. 1423 (M.D.Ala.1997). In Waverlee Homes, United States District Court Judge Myron Thompson stated: "119 Cong.Rec. 972 (Jan. 12, 1973) (emphasis added). Congressman Moss therefore made clear that the informal dispute settlement mechanisms or procedures are a `prerequisite,' not a bar, to suit in court. The House report on the bill makes this point even clearer. The report states that `An adverse decision in any informal dispute settlement proceeding would not be a bar to a civil action on the warranty involved in the proceeding.' H.R.Rep. 93-1107, 93d Cong., 2d Sess. 41, reprinted in 1974 U.S.C.C.A.N. 7702, 7723.3 This history reflects that it was Congress's intent that any non-judicial dispute resolution procedures would be nonbinding, and consumers would always retain the right of final access to court. 954 F. Supp. at 1537-39 (emphasis added). The rationale of Waverlee, including the recitation of the legislative history of the Magnuson-Moss Act, is still valid and true. The legislative history of the Magnuson-Moss Act, including the remarks of Senator Moss, a cosponsor of the Act, clearly evidences Congress's intent to preclude a waiver of judicial remedies for the statutory rights at issue. See 119 Congressional Record 972 and 15 U.S.C. § 2310(a)(2). See also Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 227, 107 S. Ct. 2332, 96 L. Ed. 2d 185 (1987). Therefore, the Magnuson-Moss Act prohibits the inclusion of a binding arbitration provision in an express warranty and makes such an arbitration provision unenforceable. Southern Energy v. Lee, supra. These conclusions moot issues one, two, and three all relating to whether the Ards are contractually bound to arbitrate. While the Ards may contractually enforce their warranty against Southern Energy, they are not bound to arbitrate their claims against Southern Energy because the arbitration provision in the warranty is unenforceable. Moreover, because no contract other than the warranty exists between Southern Energy and the Ards, they are not contractually bound to arbitrate their nonwarranty claims. This conclusion resolves issue four. In issue six, Southern Energy invokes the doctrine of equitable estoppel by intertwining. In Waverlee, supra, Judge Thompson explains the two kinds of intertwining: (1) where the plaintiff's claim *1142 against a nonsignatory to a contract containing an arbitration clause asserts breach of duty imposed or entailed by that contract, and (2) where the plaintiff alleges conspiracy or agency between a nonsignatory and a signatory to a contract containing an arbitration clause. The estoppelby-intertwining doctrine requires a plaintiff to arbitrate either kind of such claim against the nonsignatory if the plaintiff must arbitrate the plaintiff's claims against the signatory. Judge Thompson explains: "9 U.S.C. § 2. The `primary purpose' of the FAA is to ensure `that private agreements to arbitrate are enforced according to their terms.' Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford, Jr. Univ., 489 U.S. 468, 479, 109 S. Ct. 1248, 1255-56, 103 L. Ed. 2d 488 (1989). `Arbitration under the Act is a matter of consent, not coercion, and parties are generally free to structure their agreements as they see fit.' Id. It is a cardinal principle of federal arbitration law that `"arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit."' AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S. Ct. 1415, 1418, 89 L. Ed. 2d 648 (1986) (quoting United Steelworkers v. Warrior & Gulf Navig. Co., 363 U.S. 574, 582, 80 S. Ct. 1347, 1353, 4 L. Ed. 2d 1409 (1960)). Thus, initially, Waverlee must show that the plaintiffs when purchasing their homes under the installment and financing contracts with Hart's Mobile Home that make no mention of Waverlee, nonetheless constructively, or as a matter of law, agreed to arbitrate any dispute that might arise with Waverlee under express and applicable warranties. Waverlee, 954 F. Supp. at 1533-37. Southern Energy raised this doctrine in Ex parte Isbell, 708 So. 2d 571 (Ala.1997). As in Ex parte Isbell, Southern Energy is not a signatory to the retail installment contract between the Ards and Southland Homes. `"[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit."' AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986) (quoting United Steelworkers v. Warrior & Gulf Navig. Co., 363 U.S. 574, 582, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960)). The arbitration provision of the retail installment contract does not compel arbitration of claims that do not arise from the contract or between the parties to that contract. *1145 "[T]his case is substantially identical to [Waverlee], in that `[t]he warranty claims here are not intertwined with and founded upon the sales installment agreement[], except in the utterly collateral sense that if the plaintiffs had never purchased their mobile homes, they would not have been protected by the warranties that came with them.'" Ex parte Isbell, 708 So. 2d at 579 (quoting Waverlee, 954 F. Supp. at 1536 (emphasis added)). Similarly the Ards' claims against Southern Energy do not arise out of the retail installment contract. The Ards do not sue Southern Energy for a breach of any duty imposed or entailed by the retail installment contract. Nor is Southern Energy a party to the retail installment contract or a third-party beneficiary of that contract. Waverlee, supra. Thus, Southern Energy cannot rely on the arbitration provision of the retail installment contract to compel arbitration of the Ards' claims against it. Ex parte Isbell and Waverlee, supra. Finally, because the Ards do not claim either agency or conspiracy between Southern Energy and Southland Homes, Southern Energy cannot assert that kind, or scenario, of estoppel by intertwining. Issue seven is factually incorrect in its premise that the Ards "allege that Southern [Energy] is liable for the acts of Southland Homes." The trial court properly denied Southern Energy's motion to compel arbitration. We should follow Southern Energy Homes, Inc. v. Lee, supra, as precedent and should affirm the order of the trial court. COOK and ENGLAND, JJ., concur.

June 2, 2000

e6c19601-6ff9-48f1-8f3c-2f9464332c2c

Big Valley Home Center, Inc. v. Mullican

774 So. 2d 558

1982039

Alabama

Alabama Supreme Court

774 So. 2d 558 (2000) BIG VALLEY HOME CENTER, INC. v. Lisa MULLICAN. 1982039. Supreme Court of Alabama. June 16, 2000. *559 William Tipton Johnson, Jr., Tuscumbia, for appellant. J. Stephen Glenn, Florence, for appellee. COOK, Justice. Big Valley Home Center, Inc. ("Big Valley"), a defendant in an action filed in the Colbert Circuit Court, appeals from an order denying its motion to compel arbitration of the plaintiff Lisa Mullican's claims alleging breach of contract, breach of express and implied warranties, and negligence. We affirm. In June 1996, Lisa Mullican purchased a mobile home from Big Valley; it had been manufactured by Franklin Homes, Inc., which was also named as a defendant in Mullican's action. Mullican alleged that the defendants had failed to correct deficiencies in the mobile home. When she purchased the mobile home, Mullican executed a "Retail Installment Contract"; that contract is the subject of this lawsuit. The third page of that contract, entitled "ADDITIONAL TERMS AND CONDITIONS," contains an arbitration clause, which reads as follows, in pertinent part: Both defendants moved to compel arbitration of the plaintiff's claims. The court denied the motions to compel arbitration. Big Valley appealed from the order denying arbitration; Franklin Homes did not.[1] The sole issue presented by Big Valley is whether the trial court erred in denying its motion to compel arbitration. We must first address our scope of review in this case. Big Valley contends that the trial court failed to "find" that it had waived its right to compel arbitration and, therefore, *560 that the applicable standard of review is de novo. The order denying arbitration includes this statement: This language makes it clear that the trial court denied Big Valley's motion to compel arbitration because it concluded that Big Valley had waived its right to compel arbitration, by substantially invoking the litigation process and substantially prejudicing the plaintiff in doing so. See Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So. 2d 897 (Ala.1995), citing Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 390-91 (7th Cir.1995) (invoking the judicial process is presumptive waiver). It is clear that a majority of jurisdictions, including Alabama, afford de novo review of rulings on questions of law involving arbitration. See First American Title Insurance Corp. v. Silvernell, 744 So. 2d 883 (Ala.1999); Jim Burke Automotive, Inc. v. Murphy, 739 So. 2d 1084 (Ala. 1999). However, when a trial court makes factual findings underlying such a ruling, those findings are granted deference.[2] We hold that although a trial court's determination that a party has waived its right to arbitration is a legal conclusion subject to our plenary review, the trial court's findings supporting that conclusion are based on questions of fact and will not be overturned unless clearly erroneous. Whether a party has waived the right to compel arbitration must be determined from the particular facts of each case. See Thompson v. Skipper Real Estate Co., 729 So. 2d 287 (Ala.1999), quoting Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So. 2d 897, 899 (Ala.1995); see also Ex parte McKinney, 515 So. 2d 693 n. 2 (Ala.1987); Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So. 2d 1 *561 (Ala.1986).[3] Courts will not lightly infer a waiver of arbitration rights, because of the strong federal policy favoring arbitration. The United States Supreme Court has stated: Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983). Therefore, the party seeking to prove a waiver has a heavy burden. See American Dairy Queen Corp. v. Tantillo, 536 F. Supp. 718 (M.D.La.1982). The court in Chatham Shipping Co. v. Fertex S.S. Corp., 352 F.2d 291, 293 (2d Cir.1965), stated that the earliest point at which waiver of the right to arbitration may be found is the point at which the other party files an answer on the merits. After considering the record and the briefs, we conclude that the trial court did not err in holding, based on the evidence in this case, that Big Valley had waived its right to compel arbitration. The pertinent events are set out in the following chronology: The facts of this case show that Big Valley took numerous actions that would have been irrelevant in a case in which it contemplated arbitration and that would have been inconsistent with any desire it may have had to resolve this case by arbitration. On October 24, 1996, Mullican filed her a complaint against Big Valley and Franklin Homes. Over two years passed before Big Valley sought to invoke its right to compel arbitration. During the intervening period, Big Valley answered the complaint (without asserting the arbitration agreement as an affirmative defense), the plaintiff was deposed, two judges recused, the trial was continued five times, and a settlement offer was made to the plaintiff. In addition, Big Valley attended a scheduling conference, participated in discovery, and filed a notice of service of discovery documents. Had Big Valley been allowed to invoke its arbitration rights after that time, Mullican would have been substantially prejudiced.[4] During that time, Mullican's attorneys had invested time and money preparing for a trial on the merits. Had Big Valley desired to arbitrate, then it had ample time and opportunity before the eve of trial for it to seek to do so. Therefore, we conclude that the trial court properly determined that Big Valley's failure or refusal to assert its contractual right to compel arbitration until the eve of trial indicated that it had substantially invoked the litigation process, to the prejudice of Mullican, and, therefore, had waived its contractual right to compel arbitration. While we have no rigid rule for determining what constitutes a waiver of the right to arbitration, we conclude that too great a delay took place in this case. See Ex parte Bentford, 719 So. 2d 778 (Ala.1998) (held that the plaintiffs had been prejudiced by the defendants' delay in seeking to compel arbitration). We conclude that Big Valley substantially invoked the litigation process, to the prejudice of Mullican, and, therefore, waived its contractual right to arbitration. The trial court's order denying Big Valley's motion to compel arbitration and to stay the proceedings in the circuit court is affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, SEE, JOHNSTONE, and ENGLAND, JJ., concur. BROWN, J., concurs in the result. [1] A direct appeal is the generally accepted method for obtaining review of a trial court's order denying a motion to compel arbitration. See A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358, 360 (Ala.1990). [2] The South Carolina Court of Appeals has written: "`The federal circuits are united in holding that the ultimate determination of waiver is reviewed de novo, as a matter of law,' but the factual findings of the lower court are accorded some deference and [are] reviewed for substantial evidence, a standard analogous to the clear error test. J.L. Steele v. Lundgren, 85 Wash. App. 845, 935 P.2d 671, 674 (1997); see also Baltimore & Ohio Chicago Terminal R. Co. v. Wisconsin Cen. Ltd., 154 F.3d 404, 408 (7th Cir.1998) (noting an appellate court may only reverse a district court's ruling on a demand for arbitration when the district court acts unreasonably), cert. denied, 526 U.S. 1019, 119 S. Ct. 1254, 143 L. Ed. 2d 351 (1999); Price v. Drexel Burnham Lambert, Inc., 791 F.2d 1156, 1159 (5th Cir.1986); In re Liquidation of Inter-American Ins. Co. of Ill., 303 Ill.App.3d 95, 236 Ill.Dec. 490, 707 N.E.2d 617, 620 (1999) (`Under the [Federal Arbitration] Act, the decision of whether a party has waived arbitration is reviewed under the clear error standard.') (citing St. Mary's Med. Ctr. v. Disco Alum. Prods. Co., 969 F.2d 585, 588 (7th Cir.1992)). ". . . . "We now join the majority of jurisdictions granting deference to a circuit judge's factual findings made when deciding a motion to stay an action pending arbitration. We acknowledge that determining whether a party waived its right to arbitrate is a legal conclusion subject to de novo review; nevertheless, the circuit judge's factual findings underlying that conclusion will not be overruled if there is any evidence reasonably supporting them."* [*Note 8: "This conclusion accords with the standard of review employed by South Carolina courts when reviewing other preliminary trial motions."] Liberty Builders, Inc. v. Horton, 336 S.C. 658, 664-65, 521 S.E.2d 749, 751-53 (Ct.App. 1999). [3] The particular facts of a case may present extenuating circumstances indicating that the right to seek arbitration had not been waived (i.e., indicating that the moving party had a reasonable basis for not seeking to arbitrate sooner than it did). See Ex parte McKinney, supra; Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc. (held no waiver of the right to arbitrate). [4] Mullican asserts that Big Valley's appeal is untimely because it was not filed within 42 days after the trial court issued its order denying Big Valley's motion to compel arbitration. Specifically, Mullican states that Big Valley's motion to compel arbitration was denied on March 15, 1999, and the denial was not questioned until May 25, 1999, some 71 days later, when Big Valley moved for a new trial. Mullican also points out that Big Valley filed its notice of appeal on August 17, 1999155 days after the court had denied its motion to compel arbitration. The proper method for seeking review would have been to appeal that order within 42 days. A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358 (Ala.1990). We need not address this issue because we conclude that the trial court properly held that Big Valley had waived its right to compel arbitration.

June 16, 2000

a8d17e0e-b68f-4275-ab4e-95657d4e494b

Carriage Homes v. Channell

777 So. 2d 83

1980366

Alabama

Alabama Supreme Court

777 So. 2d 83 (2000) CARRIAGE HOMES, a Division of American Homestar Corporation v. Ronald CHANNELL and Jane Channell. 1980366. Supreme Court of Alabama. June 30, 2000. *84 David L. Selby II, Michael L. Jackson, and Larry S. Logsdon of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appellant. James D. Turner of Turner & Turner, P.C., Tuscaloosa, for appellees. LYONS, Justice. Ronald Channell and Jane Channell sued Carriage Homes, a division of American Homestar Corporation. Carriage Homes moved to dismiss the action or to stay the action and compel arbitration of the plaintiffs' claims. The trial court denied Carriage Homes' motion, and Carriage Homes appealed. We affirm. In mid-December 1997, the Channells, husband and wife, purchased a mobile home from Johnson Mobile Homes of Alabama, Inc., doing business as Johnson Mobile Homes. That mobile home had been manufactured by Carriage Homes. Green Tree Financial Corporation provided the Channells the financing necessary for them to purchase the mobile home. One of the documents executed by the Channells pursuant to their purchase was entitled "Arbitration Agreement Between Johnson Mobile Homes of Alabama and Ronald & Jane Channell." That document states: (Capitalization of final paragraph in original.) In June 1998, the Channells sued Johnson Mobile Homes, Carriage Homes, and Green Tree. In their complaint, the Channells state that all of the defendants are parties to the sales contract concerning the mobile home and that the sales contract subsequently was assigned to Green Tree. We note that the sales contract is not available for our review because it does not appear in the record on appeal. The Channells also state in their complaint that they were required to sign "in favor of the selling dealer" a document requiring arbitration of "any and all claims arising out of the transaction made the subject matter" of the sale. The Channells allege that their mobile home did not conform to its contract description, that it did not conform to general standards of merchantability, that it was not fit for the purpose for which it was intended, and that it was defective and nonconforming. The Channells also alleged that they had informed the defendants of the problems with the mobile home and that the defendants had attempted to correct some of the defects, but that the major defects and nonconformities remained uncorrected. The Channells alleged various theories of recovery, including revocation of acceptance, breach of contract, breach of express and implied warranties, negligent or wanton repair or failure to repair defects in the mobile home, fraudulent misrepresentation, fraudulent suppression, conversion, and money had and received. Johnson Mobile Homes moved to dismiss the complaint on the ground that the Channells had executed an arbitration agreement under which they were obligated to seek redress of their claims against Johnson Mobile Homes through arbitration, rather than through litigation. Carriage Homes also moved to dismiss the complaint or, in the alternative, asked the trial court to stay the action and to compel arbitration. Carriage Homes attached to its motion a copy of the arbitration agreement executed by the Channells and by a representative of Johnson Mobile Homes. The trial court denied both motions. Carriage Homes appealed from the order denying its motion to compel arbitration. Johnson Mobile Homes did not appeal from the order denying its motion to compel arbitration. We first address Carriage Homes' argument that the arbitration agreement *86 between the Channells and Johnson Mobile Homes entitled Carriage Homes to compel arbitration. The arbitration agreement is specifically applicable to the parties who executed it, namely, the Channells, as the buyers, and Johnson Mobile Homes, as the seller. The language of the arbitration agreement does not reach the manufacturer; therefore, Carriage Homes is not entitled to compel arbitration based upon the terms of the arbitration agreement between the Channells and Johnson Mobile Homes. First American Title Ins. Corp. v. Silvernell, 744 So. 2d 883 (Ala. 1999). See, also, Southern Energy Homes, Inc. v. Kennedy, 774 So. 2d 540 (Ala.2000). Carriage Homes also contends, however, that it is entitled to compel arbitration on the basis that the Channells have alleged that Johnson Mobile Homes is Carriage Homes' agent.[1] The contract between the Channels and Johnson Mobile Homes calls for arbitration of any "representations, promises, undertakings and/or covenants" made by Johnson Mobile Homes "and/or any of its agents, servants and/or employees." The arbitration agreement embraces agents of Johnson Mobile Homes and does not include a third party who might be a principal of Johnson Mobile Homes. Moreover, the record does not support an allegation that Carriage Homes is an agent, servant, or employee of Johnson Mobile Homes. However, even if it did, the arbitration clause is not broad enough to encompass the Channells' claims against Carriage Homes, and Carriage Homes is not entitled to compel arbitration on the basis of agency. First Family Fin. Servs. v. Rogers, 736 So. 2d 553, 560 (Ala. 1999). Carriage Homes also argues that it is entitled to compel arbitration on the basis that the Channells' claims against it are inextricably intertwined with their claims against Johnson Mobile Homes. The circumstances presented by this case are similar to those before the Court in Southern Energy Homes, Inc. v. Kennedy, supra. Like the plaintiffs in Kennedy, the Channells assert a claim against the signatory to the arbitration agreement (in this case, Johnson Mobile Homes), based on a contract separate from the freestanding arbitration agreement executed in this case, and we are not aware of any other contract in this case that contains an arbitration clause. Hence, the record indicates that the Channells' claims are not grounded upon a contract that includes an arbitration clause. This case is similar to Kennedy in another important aspect. Because Johnson Mobile Homes did not appeal the trial court's order denying its motion to compel arbitration, a critical factor is missing that would be necessary to allow Carriage Homes to compel the Channells to arbitrate their claims against it based on a theory that their claims against Carriage Homes are inextricably intertwined with their claims against Johnson Mobile Homes. We concluded in Kennedy that "[t]he concept of `intertwining' necessarily presupposes that the signatory to the arbitration agreement is or will be engaged in an arbitration proceeding with the plaintiff." 774 So. 2d at 545. This present case is like Kennedy in that there is no pending or contemplated arbitration proceeding in which the doctrine of equitable estoppel could allow Carriage Homes to compel the Channells to arbitrate their claims against it. See, also, Ex parte Roberson, 749 So. 2d 441 (Ala.1999) (Lyons, J., concurring as to the section entitled "Agreement to Arbitrate"). Under the circumstances presented by this case, we affirm the order denying Carriage Homes' motion to compel arbitration. AFFIRMED. HOOPER, C.J., and MADDOX, COOK, and JOHNSTONE, JJ., concur. [1] Carriage Homes states in its brief that the Channells also allege in their complaint that Carriage Homes is an agent of Johnson Mobile Homes. Our review of the complaint, however, indicates that the Channels allege only that Johnson Mobile Homes is an agent of Carriage Homes.

June 30, 2000

4e4dde1d-bbed-4d6c-8fd3-3ffbb384853e

Love v. Johnson

775 So. 2d 127

1981194

Alabama

Alabama Supreme Court

775 So. 2d 127 (2000) Michael William LOVE v. Gwendean JOHNSON. 1981194. Supreme Court of Alabama. March 24, 2000. Opinion on Return to Remand June 23, 2000. Thomas M. Galloway, Jr., of Galloway, Smith, Wettermark & Everest, L.L.P., Mobile, for appellant. Willie J. Huntley, Jr., of the Huntley Firm, Mobile, for appellee. MADDOX, Justice. This wrongful-death case arose out of an automobile accident. The trial court entered a judgment based on a jury verdict for the plaintiff, awarding $150,000 in damages plus costs. The defendant filed a motion asking the trial court to order a remittitur of the award. The trial court did not rule on that motion and it was denied by operation of law. Rule 59.1, Ala. R. Civ. P. The defendant correctly argues that the trial judge erred in allowing the motion for a remittitur, a motion challenging the jury's award as excessive, to be denied without providing a statement of the reasons for denial. We remand this case for the trial court to enter an order stating the reasons supporting its denial of the motion for a remittitur. See Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986). In Hammond, this Court required that a trial court "reflect in the record the reasons for interfering with a jury verdict, or refusing to do so, on the grounds of excessiveness of the damages." 493 So. 2d at 1379; see also ALFA Mut. Ins. Co. v. Brewton, 554 So. 2d 953 (Ala.1989). In Hammond, this Court stated the reason for the requirement: 493 So. 2d at 1378-79. On remand, the trial court is directed to enter an order in compliance with Hammond, and to file a return with this Court within 56 days after the release of this opinion. We express no view at this time on the substantive issue whether the defendant was entitled to a remittitur, and our remand should not be construed by the trial court or the parties as any expression of our views on that issue. When the trial court files its return in this Court, the appellant will be given 14 days to file a brief to argue his positions; the appellee will then have 7 days in which to respond. Following the filing of the appellee's brief, the appellant will then be given 7 days to file a reply brief. REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and COOK, LYONS, and JOHNSTONE, JJ., concur. MADDOX, Justice. On March 24, 2000, we remanded this case for the trial court to enter an order stating its reasons for denying the defendant's motion for a remittitur. The trial court has entered the order. That order complies with our instructions, and we affirm the trial court's judgment. AFFIRMED. HOOPER, C.J., and COOK, LYONS, and JOHNSTONE, JJ., concur.

June 23, 2000

f9c03cc4-7d77-419f-8a3d-4591b6500dcf

EBSCO INDUS. v. Royal Ins. Co. of America

775 So. 2d 128

1980854

Alabama

Alabama Supreme Court

775 So. 2d 128 (2000) EBSCO INDUSTRIES, INC., and The Home Insurance Company v. ROYAL INSURANCE COMPANY OF AMERICA et al. 1980854. Supreme Court of Alabama. June 9, 2000. Rehearing Denied July 14, 2000. *129 Michael R. Lunsford and W. Perry Webb of Porterfield, Harper & Mills, P.A., Birmingham, for appellants. Richard W. Lewis and Conley W. Knott of Maddox, Austill, Parmer & Lewis, P.C., Birmingham, for appellee Royal Insurance Company. Turner B. Williams and J. Clinton Pittman of Sadler, Sullivan, Sharp & Van Tassel, P.C., Birmingham, for appellees Luxor Corp.; Roxul Corp.; Ideal School Supply Corp.; and Educational Publishing Corp. HOUSTON, Justice.[1] EBSCO Industries, Inc., and The Home Insurance Company ("Home") filed an action in the Shelby Circuit Court against Luxor Corporation, Roxul Corporation, Ideal School Supply Corporation, Educational Publishing Corporation (all these defendants will hereinafter be referred to collectively as "Luxor"), and Royal Insurance Company, seeking indemnification and contribution. Royal filed a counter-claim against EBSCO and Home and a crossclaim against Luxor. Royal, Luxor, EBSCO, and Home all filed separate summary-judgment motions. The trial court denied the summary-judgment motion filed by EBSCO and Home, but it entered summary judgments for both Royal and Luxor. EBSCO and Home appeal. We reverse and remand. On July 2, 1992, EBSCO purchased the assets of Luxor Corporation from Luxor's parent corporation, Educational Publishing Corporation ("Educational"). Before the sale, Luxor had been insured on policies held by Educational. In September 1992, Educational informed Royal of the sale and requested that Royal "endorse all policies to show this sale and adjust the premium accordingly." Royal subsequently removed Luxor's name from all of Educational's policies except its "National Liability Policy." Because of a clerical error made by Royal, Luxor's name was never removed from this policy, and Luxor remained listed on this policy as an insured entity. On December 14, 1992, Timothy Glenn Page died when a television cartmanufactured, designed, and distributed by Luxorfell on top of him. Page's parents filed a lawsuit against Luxor in a Texas state court to recover damages for Timothy's death. However, the summons and the complaint were sent to EBSCO. EBSCO asked Luxor to defend. Luxor wrongfully said that it had no products-liability coverage. The Pages then substituted EBSCO for Luxor as a defendant. EBSCO settled the claim made by the Pages for $450,000. Home advanced this *130 money to EBSCO. The Pages agreed to "file a notice of nonsuit regarding the lawsuit" and to release EBSCO from any further liability. EBSCO and Home filed this present lawsuit against Luxor and Royal to recover the money paid to the Pages. This case is essentially a coverage dispute between the insurance companies Home, which insures EBSCO; and Royal, which insures Luxor. Both sides argue that, based on the terms of the sale, they are not liable for this loss. Luxor and EBSCO executed an agreement entitled "Asset Purchase Agreement," which set out the terms of the sale. Section 2.2 of that agreement is entitled "Liabilities Assumed"; it provides in pertinent part: (Emphasis added.) EBSCO and Home contend that because Luxor was still listed as an insured on Educational's policy, they are not liable to the Pages, but that, instead, Luxor and Royal are. Royal argues that Luxor was listed as an insured after the sale only by mistake and that the contract should be reformed to say that Luxor was no longer an insured. Without a policy that covered Luxor, the Asset Purchase Agreement would then require EBSCO to be solely liable to the Pages. Luxor agrees with Royal's contentions, but it also states that even if there is an existing policy that covers Luxor, Royal will be liable up to the limits of that policy, and only EBSCO, under the Asset Purchase Agreement, will be responsible for an amount above those limits. The questions before this Court are (1) whether Luxor was an insured under the National Liability Policy issued by Royal; (2) whether the coverage under the National Liability Policy was "existing insurance coverage" under the Asset Purchase Agreement; and (3) if there is a policy covering Luxor, can Luxor be responsible for any damage arising out of Timothy Page's death? This Court will review a summary judgment de novo, and it will apply the same standard as the trial court. Bussey v. John Deere Co., 531 So. 2d 860 (Ala. 1988). A summary judgment is appropriate when the evidence creates no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The Asset Purchase Agreement is clear and unambiguous. It states that EBSCO will be liable for a products-liability claim (1) only if the claim is made after the closing date of the agreement, and (2) only to the extent that the claim is not covered by Luxor's insurance coverage existing at the time of the sale. Timothy Page's death occurred after the closing of the agreement; therefore, EBSCO will be liable only to the extent that Luxor's existing insurance did not cover it. As a result, we must determine whether Luxor, at the time of Timothy Page's death, had any coverage under the policies that Educational held at the time of the sale. As *131 stated above, Royal removed Luxor's name from all of the policies held by Educational, with the exception of the National Liability Policy. Therefore, Luxor could still have coverage at the time of Timothy Page's death, but only on that policy. Royal argues that while the name of Luxor still appeared on the policy, it should not havethat because of a clerical error made by Royal, Royal failed to remove Luxor as an insured. The trial court agreed with Royal and reformed the policy so that it did not name Luxor as an insured. However, EBSCO and Home argue that this is not a situation where reformation is appropriate. Section 8-1-2, Ala.Code 1975, allows reformation in certain situations: The parties make no claim of fraud, nor does any party claim that Luxor knew of the mistake by Royal. Royal claims that the mistake was mutual, but both Luxor and EBSCO contend that it was a unilateral mistake. This Court has adopted the definition of "mutual mistake" found in Restatement (Second) of Contracts § 152 (1981), which defines it as a "mutual misunderstanding concerning a basic assumption on which the contract was made." Finley v. Liberty Mut. Ins. Co., 456 So. 2d 1065 (Ala.1984); American Nat'l Fire Ins. Co. v. Hughes, 624 So. 2d 1362 (Ala.1993). We find no evidence that both Luxor and Royal made a mistake. On the contrary, both Luxor and Royal appear to have agreed that Luxor would no longer be covered by this policy. Royal concedes that its own error caused Luxor to remain named as an insured on the policy. Because Royal was the only party that made the mistake, the mistake was unilateral and not mutual. This Court dealt with a situation not materially different from the present one in American & Foreign Insurance Co. v. Tee Jays Manufacturing Co., 699 So. 2d 1226 (Ala.1997). In that case, we held that a unilateral mistake cannot form the basis for reformation of a contract. Id., at 1229. Both American & Foreign Insurance Co. and the present case concern a unilateral mistake, and, for purposes of reformation, "[a] unilateral mistake will not suffice." Id. at 1229. Therefore, under § 8-1-2, the circuit court had no basis upon which to reform this policy, and it erred in doing so.[2] Furthermore, § 27-23-1, Ala.Code 1975, also prohibits the reformation of this policy. That section provides: To reform this policy would annul the coverage after Luxor had become responsible for paying damages based on Timothy Page's death. Therefore, any reformation would violate § 27-23-1. Next, we must determine whether the National Liability Policy was "existing coverage" at the time of the sale. The National Liability Policy was an occurrence policy[3] renewed on a yearly basis, with the policy period beginning on January 24 of each year. The sale of Luxor's *132 assets was closed on July 2, 1992. Consequently, the existing coverage under the National Liability Policy would be for the year from January 24, 1992, to January 24, 1993. Timothy Page's death occurred on December 14, 1992; therefore, the claim arising from his death would be against the coverage of the policy for the same year as the sale. The coverage provided by the National Liability Policy for the year in which the death occurred was clearly an "existing coverage" at the time of the sale. At the time of Timothy Page's death, Luxor was covered under a policy issued by Royal; therefore, under the Asset Purchase Agreement, Luxor's insurer, Royal, is liable up to its policy limits. Furthermore, as Luxor correctly asserts, any liability above the policy limits would be the responsibility of EBSCO, not Luxor. However, the National Liability Policy has a $1 million limit. Therefore, the entire $450,000 falls within the policy limits, and Royal is responsible for the entire amount. REVERSED AND REMANDED. HOOPER, C.J., and SEE, BROWN, and ENGLAND, JJ., concur. [1] This case was originally assigned to another Justice on this Court; it was reassigned to Justice Houston on April 17, 2000. [2] We decide this issue in this case based on the fact that the mistake in the policy was a unilateral mistake made by Royal. We do not reach the issue, also arising out of § 8-2-1, whether rights acquired by a third party had been prejudiced. [3] Black's Law Dictionary 810 (7th ed. 1999) defines "occurrence policy" as: "[a]n agreement to indemnify for any loss from an event that occurs within the policy period, regardless of when the claim is made."

June 9, 2000

d2d1667a-fb31-45c3-ae22-548831d47ce8

Ex Parte Wilson

777 So. 2d 935

1990733

Alabama

Alabama Supreme Court

777 So. 2d 935 (2000) Ex parte Joseph Michael WILSON. (In re Joseph Michael Wilson v. State of Alabama). 1990733. Supreme Court of Alabama. June 23, 2000. Rehearing Denied September 1, 2000. Elissa Green, Huntsville, for petitioner. Bill Pryor, atty. gen., and James R. Houts, asst. atty. gen., for respondent. HOUSTON, Justice. The defendant, Joseph Michael Wilson, was convicted of capital murder for the killings of Lamar Hemphill, Michael A. Beaudette, Johnny Couch, and Brian Carter. The murders were made capital because they were committed by one act or pursuant to one scheme or course of conduct. See Ala.Code 1975, § 13A-5-40(a)(10). He was also convicted of attempting to murder Ashley Rutherford and Michelle Hayden. See Ala.Code 1975, §§ 13A-6-2 and 13A-4-2. The jury unanimously recommended that the defendant be sentenced to death for the capital-murder conviction. The trial court accepted the jury's recommendation and sentenced him to death. The court also sentenced him to serve 20 years in prison for each of the attempted-murder convictions. The Court of Criminal Appeals unanimously affirmed the convictions and the sentences. See Wilson v. State, 777 So. 2d 856 (Ala. Crim.App.1999). We granted certiorari review. See Rule 39, Ala. R.App. P. We have carefully read and considered the briefs and the arguments of counsel.[1] The petitioner has shown no error in either the guilt phase of the trial or the sentencing phase of the trial that adversely affected the defendant's rights. Furthermore, we conclude that the trial court's findings concerning the aggravating and mitigating circumstances were supported by the evidence and that the death sentence was proper under the circumstances. Ala.Code 1975, § 13A-5-53(a) and (b). The judgment of the Court of Criminal Appeals is affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., concurs specially. *936 JOHNSTONE, Justice (concurring specially). I concur, but with several reservations about the opinion of the Court of Criminal Appeals, Wilson v. State, 777 So. 2d 856 (Ala.Crim.App.1999), inasmuch as we are affirming the judgment of that Court. My reservations about the opinion of the Court of Criminal Appeals do not require that we reverse. First, in part III, the opinion of the Court of Criminal Appeals appears to hold that, when the theory of the State is that a capital murder was especially heinous, atrocious, or cruel, an experienced police officer who has investigated many capital crimes may testify to his opinion that the alleged murder at issue was especially heinous, atrocious, or cruel. Such opinion testimony is not proper under our rules of evidence, which provide: Rule 702, Ala. R. Evid. Rule 704, Ala. R. Evid. In adopting the statutory aggravating circumstance that "[t]he capital offense was especially heinous, atrocious or cruel compared to other capital offenses," § 13A-5-49(8), Ala.Code 1975, the Legislature implicitly found that every person is so charged with knowledge of this standard that his or her violating it is punishable by death. The courts cannot, consistently with this implicit finding, hold that jurors need expert assistance to apply this standard. The admission of the opinion testimony on this statutory aggravating circumstance was error, albeit harmless under the circumstances of this particular case. Second, this Court should reject the dictum by the Court of Criminal Appeals, in part XII.A. of its opinion that, "[b]ased on the veniremember's responses, the trial court could have reasonably determined that J.B. was not biased against the appellant and could have, in its discretion, refused to excuse him for cause." 777 So. 2d at 915. This dictum follows several pages of the voir dire examination of veniremember J.B. That examination proves, unequivocally, that veniremember J.B. was persistently unwilling or unable to accord the defendant the benefit of the presumption of innocence and the absence of a burden to prove his innocence. A refusal to excuse veniremember J.B. for cause would have been error. Apparently, however, the trial court did excuse veniremember J.B. for some reason and thereby avoided error. Third and finally, in section XXI of its opinion, 777 So. 2d at 929, the Court of Criminal Appeals quotes Grice v. State, 527 So. 2d 784, 787 (Ala.Crim.App.1988), with approval to the effect that, "[t]here is irony in a convicted murderer's contending on appeal that pictures of the corpse of his victim might have inflamed the jury. That risk `comes with the territory.'" This Court recently disapproved that rationale. Ex parte Samra, 771 So. 2d 1122, 1122 n. 1 (Ala.2000). This language commits the fallacy of begging the question. That is, it assumes the truth of the very proposition to be established. The purpose of an objection that photographs are prejudicial is to prevent the jury from unjustly convicting the defendant, who, at that point in the trial, has not yet been convicted and is presumed innocent. Under the law and the facts of this particular case, however, I agree with the conclusion of the Court of Criminal Appeals that these photographs were admissible. [1] Because the petition in this case was filed before the effective date of the revised version of Rule 39, Ala. R.App. P., May 19, 2000, we have searched the record in this case for plain error. We found none.

June 23, 2000

b5411ed7-e749-42ce-a5e8-a0fe425a5cd5

Lowrey v. McNeel

773 So. 2d 449

1972260, 1972261

Alabama

Alabama Supreme Court

773 So. 2d 449 (2000) Jacob LOWREY III, individually and as trustee; J.F.B. Lowrey, Jr.; Sandra Lowrey Robinson; and Buche Lowrey Tiernan v. Alan McNEEL, Lowrey McNeel, Sam Lowrey, Jr., Anne McMillan, and Shelby Jones. 1972260 and 1972261. Supreme Court of Alabama. June 9, 2000. *450 William A. Robinson and David L. Kane of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Mobile, for appellants. Charles M. Crook and J. Chris Cochran of Balch & Bingham, L.L.P., Montgomery, for appellees Alan McNeel and Lowrey McNeel. J. Milton Coxwell, Jr., of Coxwell & Coxwell, Monroeville, for appellee Sam Lowrey, Jr. Richard H. Gill of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellees Anne McMillan and Shelby Jones. ENGLAND, Justice. Jacob Lowrey III, J.F.B. Lowrey, Jr., Sandra Lowrey Robinson, and Buche Lowrey Tiernan ("the appellants") appeal from a judgment granting a "Petition for Modification" of a consent judgment governing the administration of two trusts. This case stems from two testamentary trusts created under the wills of J.F.B. Lowrey and Eloise Russell Lowrey, husband and wife. Mr. Lowrey died in 1954, and Mrs. Lowrey died in 1965. The principal assets of the trusts are tracts of timberland in Monroe and Conecuh Counties. The trusts terminate 20 years after the death of the survivor of the children and grandchildren who were living at the time Mr. and Mrs. Lowrey executed the wills.[1] Mr. and Mrs. Lowrey appointed their son, Samuel Lowrey, Sr., to serve as the sole trustee. The will provided that in the event Samuel Lowrey, Sr. should die before the termination of the trusts, the court that administers the trusts shall name a "proper and suitable person" to fill the vacancy. In 1981, Lowrey McNeel and Alan McNeel ("the McNeels") sued Samuel Lowrey, Sr., alleging that he had breached his fiduciary duties. That action was settled by an agreement of the parties in 1984. In 1988, the McNeels filed a second action against Samuel Lowrey, Sr., alleging that he had breached the 1984 settlement agreement and seeking to remove him as trustee. In 1990, the court entered an order adopting a "consent decree" submitted by the parties. The order appointed AmSouth Bank, N.A. ("AmSouth"), as cotrustee with Samuel Lowrey, Sr., and made some provisions regarding distributions to the income beneficiaries. In 1992, the McNeels filed a "Petition to Remove Co-Trustee." A guardian ad litem was appointed to represent the interests of the contingent beneficiaries. On January 13, 1993, the parties reached a settlement agreement, which became effective on that day. Pursuant to the settlement agreement, the trial court entered an order that (1) appointed AmSouth as sole trustee for the trusts for a term of three years; (2) established a steering committee to act as a consultative body, having no authority other than the authority to remove AmSouth by unanimous consent of the committee members (Lowrey McNeel, Alan McNeel, Sam Lowrey, Jr., and Jacob Lowrey III); (3) provided that the steering committee would succeed AmSouth as trustee upon the expiration of its three-year term unless the committee unanimously agreed to the continuation of AmSouth as trustee; and (4) authorized *451 substantial increases in distributions for income beneficiaries. The order also provided that the trial court would "be the arbiter of all disputes relating to both the consummation and implementation of the agreement," and that the court would "retain jurisdiction of this matter for all purposes." The steering committee held several meetings, until February 1996, when Anne McMillan and Shelby Jones filed a "Petition for Appointment of Successor Trustee and Other Relief," challenging the appointment of the steering committee members as trustees of the trusts. In March 1996, AmSouth filed a "Petition for Accounting, Instructions Concerning Successor Trustees, and Final Discharge." The court extended, pending further order, the time during which AmSouth could serve as trustee. In March 1997, the appellants filed a "Petition to Enforce Judgment and to Implement Substitution of Trustees," wherein they asked the trial court to enforce the settlement agreement and order of January 13, 1993. Shortly thereafter, the McNeels filed a "Petition for Modification," in which they requested that the trial court set aside the January 13, 1993, order and appoint AmSouth as sole trustee indefinitely. The petitions were set for trial on June 22, 1998. The trial court entered an order on June 24, 1998, modifying the January 13, 1993, order, but it later amended this order, on August 3, 1998. The amended order provided that AmSouth would continue to act as trustee for a period of three years. The amended order also provided that a steering committee, consisting of all current income beneficiaries, would exist to facilitate communications between AmSouth and the beneficiaries. The trial court concluded that at three-year intervals the steering committee would have the power to terminate AmSouth as trustee and select a different corporate trustee.[2] The appellants argue that the trial court erred in setting aside provisions of the settlement agreement and consent judgment of January 13, 1993, when there had been no allegation or evidence of fraud, accident, or mistake; and that the trial court lacked authority to displace the steering committee established by the January 13, 1993, consent judgment, because the members of the committee became trustees by operation of law when at the end of the three-year term the members did not unanimously vote to continue AmSouth as trustee. The appellees argue that the trial court did not abuse its discretion in modifying its 1993 order to allow AmSouth to continue as sole trustee of the trusts. For the reasons set out below, we affirm the trial court's judgment. The trial court, after hearing over two days of oral testimony, modified its previous order, which would have allowed a family steering committee to act as trustee unless the steering committee unanimously agreed to allow AmSouth to continue as trustee. Federal Home Loan Mortgage Corp. v. Bates, 644 So. 2d 925, 926-27 (Ala.1994) (citing Clark v. Albertville Nursing Home, Inc., 545 So. 2d 9 (Ala.1989)). See also Ex parte Kent Corp. 641 So. 2d 242 (Ala.1994); Griggs v. Driftwood Landing, Inc., 620 So. 2d 582 (Ala.1993); Herston v. Austin, 603 So. 2d 976 (Ala.1992). Thus, the trial court's order modifying its former order and appointing AmSouth as trustee, and *452 the findings upon which the order was based, are entitled to a presumption of correctness unless they are plainly and palpably wrong. The trial court made the following pertinent findings of fact based upon the oral testimony and documentary evidence presented: The court further found the family trust committee to be unsuitable and not in the best interest of the trusts or the beneficiaries, because of (1) the distances involved and geographic separation of the residences of the proposed family committee; (2) the significant differences in the circumstances of the various family members (including family size, age, children, financial objectives, and different present-income interests in the trusts); (3) the lack of expertise necessary for the efficient administration of such complex trusts (consisting of 20,000 acres of timberland, including oil and gas interests and nontimber real-estate-management activities); and (4) the fact that since 1981 *453 the trusts have been the subject of intra-family litigation and the fact that the three-year period during which AmSouth served as trustee was the longest period that the litigation over the trusts was not actually ongoing or imminently threatened. The record shows that Jacob Lowrey III is the only steering-committee member who favors having the trusts run by a family committee. His father, Buck Lowrey, testified that he wanted the trial court to do what was best for the trusts, even if it meant having a corporate trustee manage the trusts. The McNeels and the descendants of Sam Lowrey, Sr. (Sam Lowrey, Jr., Shelby Lowrey Jones, and Anne Lowrey McMillan) all oppose having a family committee as trustee. Thus, a review of the extensive record in this case and the applicable law leads this Court to conclude that the trial court did not err in modifying the 1993 consent judgment, for several reasons. First, modifying the 1993 consent judgment was within the trial court's discretion. We have held that "`[s]upervising the administration of trusts is a well-recognized ground of equity, and the regulation and enforcement of trusts is one of the original and inherent powers of the equity court.'" Ex parte Holt, 599 So. 2d 12, 14 (Ala.1992) (quoting First Alabama Bank of Montgomery, N.A. v. Martin, 425 So. 2d 415, 423 (Ala. 1982)). Furthermore, the 1993 consent judgment included a clause stating that the trial court retained jurisdiction "for all purposes." Second, the wills state: "In the event that Samuel Graves Lowrey should die before the termination of this trust I direct that the trial court wherein this trust is being administered shall name a proper and suitable person to fill such vacancy." "The law is well settled in Alabama that the touchstone for construction of a will is to ascertain [the] testator's intention by giving effect to all the provisions of the will as a whole." Nevin v. Nevin, 366 So. 2d 266, 268 (Ala.1979) (citing Perdue v. Roberts, 294 Ala. 194, 314 So. 2d 280 (1975)). Thus, it was the will of the testators that the trial court appoint a successor trustee. Jacob Lowrey III argues that the family committee automatically became trustee, pursuant to the 1993 consent judgment, when three years expired and the committee did not unanimously vote to allow AmSouth to continue as trustee. He cites § 19-3-211, Ala.Code 1975, as support for his contention that once the family committee automatically became trustee it could not be removed. Section 19-3-211 allows the circuit court to remove a trustee on certain grounds, including a trustee "who, for any cause, is an unsuitable person to execute the trust." The removal of a trustee is a matter that rests in the discretion of the trial court, and the scope of review on appeal from an order removing a trustee is limited to determining whether the trial court abused its discretion. Jones v. McGuirt, 416 So. 2d 970 (Ala.1982). Even if we accepted Jacob Lowrey III's argument that the family committee automatically became trustee, we would still hold that the trial court did not abuse its discretion. All of the respondent-beneficiaries testified that they preferred a corporate trustee as opposed to a family-committee trustee, because of the strife and disharmony among family members over the trust. Buck Lowrey, the last living child of J.F.B. and Eloise Lowrey, testified that he wanted the trial judge to do whatever was best for everyone, even if it meant having a corporate trustee. Under the ore tenus rule, the trial court's findings and its judgment based on those findings must be affirmed if they are not plainly and palpably wrong. The record supports the trial court's findings that continuing the family committee as trustee would be unsuitable and not in the best interest of the trust. Therefore, the trial court's judgment is affirmed. AFFIRMED. *454 HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, and JOHNSTONE, JJ., concur. [1] Mr. and Mrs. Lowrey were survived by their three children, Samuel Lowrey, Sr. (now deceased), who held a 50% interest in the trust; Martha Lowrey McNeel (now deceased), who held a 25% interest; and J.F.B. Lowrey, Jr. ("Buck"), who holds a 25% interest. Sam Lowrey, Jr., Shelby Lowrey Jones and Anne Lowrey McMillan are the children of Samuel Lowrey, Sr., and each holds a 16.6% interest in the trusts. Alan and Lowrey McNeel are the sons of Martha Lowrey McNeel, and each holds a 12.5% interest in the trusts. Jacob Lowrey III, Sandra Lowrey Robinson, and Buche Lowrey Tierman are the children of Buck Lowrey and will succeed to Buck's interest upon his death. [2] In granting the McNeels' "Petition for Modification," the court concluded that it was unnecessary to decide the issues arising from Anne McMillan and Shelby Jones's "Petition to Enforce Judgment and to Implement Substitution of Trustees."

June 9, 2000

495999c5-6fb9-488e-8e0a-75bc5d4c543b

Ex Parte Bland

796 So. 2d 340

1990048

Alabama

Alabama Supreme Court

796 So. 2d 340 (2000) Ex parte Michael Steven BLAND. (In re Sheri Denise Bland v. Michael Steven Bland). 1990048. Supreme Court of Alabama. June 16, 2000. Rehearing Denied September 1, 2000. *342 Melissa C. Bowen, Prattville, for petitioner. Donna Armstrong Bland, Montgomery, for respondent. MADDOX, Justice. Sheri Denise Bland sued her husband, Michael Steven Bland, in the Autauga Circuit Court, for a divorce. Following a trial, the judge entered a judgment divorcing the parties, awarding custody of the couple's two children to the father, dividing the couple's marital property, and awarding child support to the husband and periodic alimony to the wife. The Court of Civil Appeals affirmed the trial court's judgment in part, reversed it in part, and remanded the case. Bland v. Bland, 796 So. 2d 335 (Ala.Civ.App.1999). The husband petitioned for certiorari review, which we granted. We affirm in part, reverse in part, and remand. The husband and wife were married for approximately 13 years before the wife sued for a divorce. During most of that time, the wife did not work outside the home. Although she earned a degree in education, she is not yet certified to teach school. Two children were born during the marriage. The husband now lives in Valdosta, Georgia, and the wife lives in Prattville. For a more detailed statement of the facts, see the opinion of the Court of Civil Appeals. The trial court awarded the husband custody of the couple's children. The court also ordered (1) that the first $76,000 from the sale of the marital home be awarded to the husband, in compensation for inheritance money he had used to purchase the home; (2) that the husband pay the wife $250 a month in alimony; (3) that the wife receive 25% or $250, whichever is greater, from the husband's monthly military-retirement benefits when he begins receiving those benefits; (4) that the wife pay the husband $230.67 a month in child support; and (5) that the wife pay approximately $2,000 owed on a credit card issued *343 in the husband's name but used primarily by the wife. The Court of Civil Appeals affirmed the custody order and that part of the judgment relating to the credit-card debt. However, the court reversed the visitation order and the orders concerning child support, alimony, and division of property. When this Court grants a petition for certiorari review, it limits its review to the issues raised in the petition. Ex parte Franklin, 502 So. 2d 828, 828 n. 1, (Ala.1987); Ex parte Thaggard, 276 Ala. 117, 119, 159 So. 2d 820, 822 (1963). The wife did not petition this Court for certiorari review, and the husband's petition did not request this Court to review that portion of the Court of Civil Appeals' judgment granting him physical custody of the children. Therefore, the issue of custody is not before this Court. The husband raises the following issues in his petition: (A) whether the Court of Civil Appeals erred in reversing that portion of the trial court's judgment concerning the period of the wife's visitation with the children; (B) whether the Court of Civil Appeals erred in reversing the trial court's distribution of the proceeds from the sale of the marital home; (C) whether the Court of Civil Appeals erred in reversing the trial court's award of periodic alimony; (D) whether the Court of Civil Appeals erred in reversing the award of a portion of the husband's anticipated military-retirement benefits; and (E) whether the Court of Civil Appeals erred in granting the wife an attorney fee of $1,500. We will address each issue in turn. The husband argues that the Court of Civil Appeals erred in reversing the trial court's visitation order. The Court of Civil Appeals noted that the trial judge had entered a pendente lite order granting the husband visitation every other weekend and six weeks during the summer and that the final order granted the wife visitation for only one weekend a month and four weeks in the summer. The Court of Civil Appeals stated that "the record suggests no reason to award the wife such limited visitation." 796 So. 2d at 337. The Court directed: "On remand, the trial court is to reconsider the issue of summer visitation." 796 So. 2d at 337. It is well settled that trial judges enjoy broad discretion in fashioning divorce judgments. We have held: Ex parte Jackson, 567 So. 2d 867, 868 (Ala. 1990). The determination of proper visitation, therefore, is within the sound discretion of the trial court, and that court's determination should not be reversed by an appellate court absent a showing of an abuse of discretion. The simple fact that the trial judge's final order reduced visitation *344 of the noncustodial parent from six weeks in the summer to four weeks, and from every other weekend to one weekend a month, is not sufficient to find that the trial court abused its discretion. A pendente lite order is, by its nature, temporary. Further, the final order was entered after the trial court had received a substantial amount of evidence. Accordingly, we reverse that portion of the judgment of the Court of Civil Appeals reversing the trial court's visitation order. The husband argues that the Court of Civil Appeals improperly reversed the trial court's order regarding the proceeds from the sale of the marital home. The trial judge had ordered that "[u]pon the sale of the [marital] home, the Husband shall be awarded the first $76,000.00 from the sale, and the parties shall divide the remainder of the proceeds equally after deducting the selling expenses and paying off the [debt on the] security system." (C.R. at 284.) The $76,000 figure represents money the husband had inherited from his father; that money, along with additional money the couple had saved, had been used to purchase the marital home. Trial judges enjoy broad discretion in divorce cases, and their decisions are to be overturned on appeal only when they are "unsupported by the evidence or [are] otherwise palpably wrong." Jackson, supra. In this case, the Court of Civil Appeals reversed the trial judge's order awarding the husband the $76,000. The Court of Civil Appeals held that the money had been used for the common benefit of the parties during their marriage. Even though the money the husband had received by inheritance may have been used for the common benefit of the parties, it was nonetheless within the trial court's discretion to determine the most equitable distribution of the parties' property. The wife presents no convincing argument as to why the trial court's distribution of proceeds from the sale of the marital home constituted an abuse of discretion. Accordingly, we conclude that the Court of Civil Appeals erred in reversing the trial court's order distributing the proceeds from the sale of the marital home, and we reverse the judgment of the Court of Civil Appeals to the extent it reversed that order. The husband also argues that the Court of Civil Appeals erred in reversing the trial court's order relating to initial periodic-alimony payments. The trial court ordered that "[t]he Husband ... pay to the Wife periodic alimony in the sum of $250.00 per month." (C.R. at 280.) The Court of Civil Appeals stated: 796 So. 2d at 338. The Court of Civil Appeals also noted that the mother's living expenses were approximately $2,500 per month and that she was earning gross wages of only $1,200 per month. Accordingly, the Court of Civil Appeals held that the trial court abused its discretion in awarding the wife only $250 a month in alimony. We are mindful that "matters of alimony and property division are within the sound discretion of the trial court, and [that] absent a showing of abuse of that *345 discretion, the trial court's ruling on those matters will not be reversed." Franz v. Franz, 723 So. 2d 61, 63 (Ala.Civ.App.1997). However, we also note, as did the Court of Civil Appeals, that "[t]he purpose of alimony is to preserve, as far as practical, the economic status quo the parties enjoyed during the marriage." Pickett v. Pickett, 723 So. 2d 71, 74 (Ala.Civ.App.1998). Although we find this to be a close case on this point, we affirm that portion of the judgment of the Court of Civil Appeals reversing the trial court's award of periodic alimony. The husband also argues that the Court of Civil Appeals erred in reversing the trial court's order awarding the wife 25% of his retirement benefits once they become available to him. The Court of Civil Appeals appears to have reversed that order so that on remand the trial court, in fashioning a new order, would have before it all matters concerning payments between the parties. We find no error in the Court of Civil Appeals' discussion of the husband's military-retirement benefits. Therefore, we affirm that portion of the judgment of the Court of Civil Appeals concerning the trial court's award of those benefits. The husband also argues that the Court of Civil Appeals erred in awarding the wife an attorney fee. In her brief to the Court of Civil Appeals, filed on April 5, 1999, the wife made the following request: "Finally, the Appellant prays that this Court award her attorney fees and all legal costs associated with this appeal." It is this request, apparently, to which the Court of Civil Appeals was responding when it stated in its opinion: "The wife's request for an attorney fee is granted in the amount of $1,500." 796 So. 2d at 340. It is within the authority of the Court of Civil Appeals to award an attorney fee for representation received by a party in proceedings before that Court. See Chancellor v. Chancellor, 52 Ala.App. 10, 288 So. 2d 794 (1974). We see no reason to disturb that Court's award of the attorney fee in this case; that award is affirmed. We reverse those portions of the judgment of the Court of Civil Appeals that reversed the trial court's order relating to the period of the wife's visitation and the trial court's order distributing the proceeds from the sale of the marital home. We affirm the judgment of the Court of Civil Appeals insofar as it relates to the other issues before us. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HOOPER, C.J., and HOUSTON, COOK, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., concurs in part and dissents in part. JOHNSTONE, Justice (concurring in part and dissenting in part). I concur insofar as the main opinion reverses the Court of Civil Appeals. I also concur in affirming the award of an attorney fee to the wife by the Court of Civil Appeals. I dissent from those aspects of the main opinion which affirm the Court of Civil Appeals in its reversal of certain aspects of the judgment by the trial court.

June 16, 2000

b841eb74-073f-4060-95a6-5e4a1a038cfb

ALLMERICA FINANCIAL LIFE INS. v. Miller

775 So. 2d 132

1980529, 1980530

Alabama

Alabama Supreme Court

775 So. 2d 132 (2000) ALLMERICA FINANCIAL LIFE INSURANCE AND ANNUITY COMPANY v. William A. MILLER. Nowlin & Associates v. William A. Miller. 1980529 and 1980530. Supreme Court of Alabama. June 23, 2000. *133 James A. Kee, Jr., Michael L. Jackson, and Mark M. Hogewood of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appellant Allmerica Financial Life Insurance and Annuity Company. Kenneth O. Simon and Laura E. Proctor of Simon Borden, Birmingham, for appellant Nowlin & Associates. David H. Marsh, Jeffrey C. Rickard, and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for appellee. HOUSTON, Justice.[1] William A. Miller was employed, through Nowlin & Associates, as an agent for Allmerica Financial Life Insurance and Annuity Company ("Allmerica").[2] Allmerica is a member of the National Association of Securities Dealers ("NASD"); Nowlin & Associates is not a member of NASD. Miller sued Allmerica and Nowlin & Associates, alleging various wrongs arising out of the terms of his employment. Specifically, Miller's complaint alleged that he had become a top seller of an insurance product called Payroll Exceptional Life ("PEL"); that he had been promised vested commissions for selling the PEL; that Allmerica had sold the PEL product line to American Hermitage Life Insurance Company; and that by selling the PEL product line Allmerica had severed Miller's vested commissions. These allegations constituted the factual basis of his seven-count complaint.[3] Allmerica and Nowlin & Associates asked the trial court to compel arbitration of Miller's claims, pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq. The underlying arbitration agreement is found in the application Miller signed to become a registered securities agent; that application is styled "Uniform Application for Securities Industry Registration or Transfer" ("Form U-4"). Form U-4 requires Miller to arbitrate "any disputes, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of [NASD]." However, § 10101 of the NASD Code of Arbitration[4] excepts from arbitration matters involving "the insurance business of any member who is also an insurance company." Relying on our decision in Ex parte Hagan, 721 So. 2d 167 (Ala.1998), the trial court refused to compel arbitration. In Hagan we held that a lawsuit filed by an insurance agent with claims factually similar to Miller's involved the "insurance business" and fell within the exception to § 10101.[5] By so holding, we overturned the trial court's order compelling arbitration. The significant issues in these appeals are (1) whether the trial court correctly concluded that Miller's claims are excepted by § 10101 of the NASD Code, as defined in Hagan, and, if so, (2) whether Hagan should be overruled on the ground that it *134 makes too broad an interpretation of § 10101. Before we address those two issues, however, we must consider whether Allmerica and Nowlin & Associates have standing to enforce the arbitration clause found in Form U-4. Nowlin & Associates is not a member of NASD.[6] To determine what legal effect its nonmembership has on its demand for arbitration, we must look to the NASD Code of Arbitration. Section 10101 of that Code, "Matters Eligible for Submission," provides for the arbitration of: In Hagan, we considered whether a nonmember corporation, like Nowlin & Associates, could be a "person associated with a member": Ex Parte Hagan, 721 So. 2d at 169. Nowlin & Associates is not a member; it is not a person associated with a member; and it is not an associated person of a member; therefore, it does not have standing to compel arbitration. We affirm the trial court's refusal to compel arbitration of the dispute between Miller and Nowlin & Associates. Unlike Nowlin & Associates, Allmerica is a registered member of NASD. Therefore, under the rules cited above, Allmerica has standing to enforce the arbitration agreement, provided the matter to be arbitrated does not fall within the exception found in § 10101. See SouthTrust Securities, Inc. v. McClellan, 730 So. 2d 620 (Ala.1999) (compelling arbitration under the FAA and the NASD Code of Arbitration when the plaintiff had signed a Form U-4).[7] This brings us to the first issue stated earlier: Is the underlying dispute a matter involving Allmerica's insurance business and thus excepted from the arbitration provision? In Hagan, we answered a similar question by holding that the exception of § 10101 applies to members who are insurance companies. 721 So. 2d at 171 (holding that the "exception applies because of Minnesota Mutual's status as an insurance *135 company"). We based this holding on the following rationale: Ex parte Hagan, 721 So. 2d 167, at 171-73 (Ala.1998). (Footnotes omitted.) (Emphasis omitted.) Based on this Court's decision in Hagan, we hold that Miller's claims involve the insurance business of Allmerica; that the claims fall under the exception stated in § 10101; that the trial court correctly relied on precedent from this Court; and, therefore, that the judgment of the trial court is due to be affirmed. Allmerica recognizes the precedent of Hagan, but asks us to overturn it, based upon the following cases: Mouton v. Metropolitan *137 Life Ins. Co., 147 F.3d 453 (5th Cir.1998); In re Prudential Ins. Co. of America Sales Practice Litigation All Agent Actions, 133 F.3d 225 (3d Cir.), cert. denied sub nom. Weaver v. Prudential Ins. Co. of America, 525 U.S. 817, 119 S. Ct. 55, 142 L. Ed. 2d 43 (1998); Armijo v. Prudential Ins. Co. of America, 72 F.3d 793 (10th Cir.1995); Kidd v. Equitable Life Assurance Soc'y of the United States, 32 F.3d 516 (11th Cir.1994); Paul Revere Variable Annuity Ins. Co. v. Zang, 81 F. Supp. 2d 227 (D.Mass.2000); Brannon v. Massachusetts Mut. Life Ins. Co., No. CIV A. 99-3497 (E.D.La., Jan. 31, 2000) (not published in F.Supp.); Paul Revere Variable Annuity Ins. Co. v. Thomas, 66 F. Supp. 2d 217 (D.Mass.1999); Palmer-Scopetta v. Metropolitan Life Ins. Co., 37 F. Supp. 2d 1364 (S.D.Fla.1999); Herko v. Metropolitan Life Ins. Co., 978 F. Supp. 141 (W.D.N.Y.1997); Battle v. Prudential Ins. Co., 973 F. Supp. 861 (D.Minn.1997); Jankauskas v. Prudential Ins. Co. of America, No. Civ. A. 97-985 (E.D.Pa. May 6, 1997) (not published in F.Supp.); Cular v. Metropolitan Life Ins. Co., 961 F. Supp. 550 (N.D.N.Y.1997); Neary v. Prudential Ins. Co. of America, No. 3:96CV1513 (D.Conn., Feb. 24, 1997) (not published in F.Supp.); Vitone v. Metropolitan Life Ins. Co., 943 F. Supp. 192 (D.R.I.1996); Weinstein v. Equitable Life Assurance Soc'y of the United States, No. CIV. A. 96-CV-3614 (E.D.La. Sept. 26, 1996) (not published in F.Supp.); Pitter v. Prudential Life Ins. Co., 906 F. Supp. 130 (E.D.N.Y.1995); Wojcik v. Aetna Life Ins. & Annuity Co., 901 F. Supp. 1282 (N.D.Ill.1995), clarified by 916 F. Supp. 729 (N.D.Ill.1996); Hall v. MetLife Resources, No. 94 Civ. 0358 (S.D.N.Y., May 3, 1995) (not published in F.Supp.); Trumbetta v. Metropolitan Life Ins. Co., Civ. A. No. 94-3275 (E.D.Pa., 1994) (not published in F.Supp.); Prudential Ins. Co. v. Shammas, 865 F. Supp. 429 (W.D.Mich.1993); Northwestern Mut. Life Ins. Co. v. Stinnett, 698 N.E.2d 339 (Ind. Ct.App.1998); Fastenberg v. Prudential Ins. Co. of America, 309 N.J.Super. 415, 707 A.2d 209 (App.Div.1998). We are not persuaded that we should overrule Hagan. AFFIRMED. COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. HOOPER, C.J., and MADDOX and SEE, JJ., concur in part and dissent in part. SEE, Justice (concurring in part and dissenting in part). I concur in the affirmance of the trial court's order denying Nowlin & Associates' motion to compel arbitration. I dissent from the affirmance of the trial court's order denying Allmerica Financial Life Insurance and Annuity Company's motion to compel arbitration. In denying Allmerica's motion to compel arbitration, the trial court relied on Ex parte Hagan, 721 So. 2d 167 (Ala.1998). In Hagan, this Court held that an employment dispute with an insurance company necessarily involves the insurance business of that company and therefore comes within the insurance business exception under § 10101 of the Code of Arbitration of the National Association of Securities Dealers. The holding of Hagan is contrary to the clear majority of cases, as cited in the main opinion.[8] I would overrule Hagan and, in accordance with the clear majority of authority, hold that plaintiff William A. Miller's employment dispute with Allmerica *138 does not involve the business of insurance and is therefore arbitrable. Accordingly, I dissent. HOOPER, C.J., and MADDOX, J., concur. [1] This case was originally assigned to another Justice on this Court; it was reassigned to Justice Houston on April 21, 2000. [2] When Miller entered into the "Career Agent's Agreement," Allmerica was known as SMA Life Assurance Company. [3] Count 1 alleged breach of contract; Count 2 alleged deceit; Count 3 alleged misrepresentation or suppression; Count 4 alleged negligent, reckless, wanton, and/or wrongful behavior; Count 5 alleged fraudulent deceit; Count 6 alleged suppression of a material fact; and Count 7 alleged intentional interference with Miller's business. [4] This code was adopted by NASD pursuant to Art. VII, § 1(a)(3), of its bylaws. [5] In Hagan, the insurance agent's complaint alleged libel, fraud in the inducement, fraudulent concealment, and breach of contract against three companies that had hired him to sell insurance policies and that had subsequently terminated his employment. [6] Nowlin & Associates has never filed a Form U-4 to become a member of NASD. The record indicates that Charles Nowlin, as an individual, has filed a Form U-4, but that Nowlin & Associates, a separate legal entity, has not filed a Form U-4. [7] SouthTrust Securities did not involve the insurance exception. [8] As one of the authorities cited in the main opinion states: "The fact that [the defendant] is an insurance company does not automatically mean that a dispute involves its `insurance business.' To the contrary, courts have almost universally held that being employed by an insurance company is not enough to trigger the exception and instead examine the degree to which the pending claim is entangled with the company's insurance business." Paul Revere Variable Annuity Ins. Co. v. Thomas, 66 F. Supp. 2d 217, 228 (D.Mass.1999) (citations omitted).

June 23, 2000

98c00faf-db61-4c49-868b-39ac8ee54c9c

Ex Parte Tribble

783 So. 2d 69

1980601

Alabama

Alabama Supreme Court

783 So. 2d 69 (2000) Ex parte Roderick TRIBBLE. (Re Roderick Tribble v. State). 1980601. Supreme Court of Alabama. June 30, 2000. Rehearing Denied September 1, 2000. *70 Denise Matthess Hill, Decatur, for petitioner. Bill Pryor, atty. gen., and Beth Slate Poe, asst. atty. gen., for respondent. JOHNSTONE, Justice. We granted Roderick Tribble's petition for a writ of certiorari to review the aspect of the decision of the Court of Criminal Appeals affirming his conviction for leaving the scene of an accident. He did not seek certiorari review of the affirmance of his conviction for vehicular homicide, a charge tried jointly with the charge of leaving the scene. The issue before us is whether the trial judge erred in denying Tribble's motion to dismiss the leaving-the-scene charge on the ground of double jeopardy after the trial judge had previously declared a mistrial of both charges *71 over the defendant's objection to mistrying the leaving-the-scene charge. We reverse and remand as to the one conviction before us. Roderick Tribble was indicted for vehicular homicide in violation of § 32-5A-192, Ala.Code 1975, and for failure to give information and to render aid (also called "leaving the scene of an accident") in violation of § 32-10-2, Ala.Code 1975. Trible's first jury trial began on April 23, 1997. After lunch the following day, the trial judge charged the jury. During the trial judge's oral charge, he instructed the jury: (R. 74.) After approximately eight hours of deliberation, the jury sent the trial judge a note indicating that the jury was deadlocked on the vehicular-homicide charge. The trial judge informed the parties that the note showed a five to seven not-guilty vote on the vehicular-homicide charge, and a 12 to zero not-guilty vote on the leaving-the-scene charge. At that time the trial judge expressed his concern about declaring a mistrial: (R. 88.) Before the jury returned, defense counsel objected to a mistrial on the leaving-the-scene charge. Defense counsel urged the trial judge to allow the jury to render a formal verdict on that charge alone. Defense counsel did not object to a mistrial on the vehicular-homicide charge. (R. 90.) The trial judge, however, declared a mistrial on both charges. Before Tribble's second jury trial on both charges, defense counsel moved to dismiss the charge of leaving the scene on the ground that the retrial violated Tribble's constitutional guarantee against double jeopardy. The trial judge denied the motion, and, on December 2, 1997, began Tribble's second jury trial. The second jury found Tribble guilty of both vehicular homicide and leaving the scene. The trial court adjudged Tribble guilty of both charges and sentenced him to 5 years' imprisonment for his conviction for vehicular homicide and to 10 years' imprisonment for his conviction for leaving the scene. The trial court ordered Tribble's sentences to run consecutively. Upon Tribble's appeal, the Court of Criminal Appeals affirmed his convictions and sentences. Tribble v. State, 783 So. 2d 58 (Ala. Crim.App.1998).[1] In affirming the trial court's decision, the Court of Criminal Appeals held that the jury's "tentative vote" in its note to the trial court did not constitute an "official verdict acquitting [Tribble] of the count charging failure to render aid [ (leaving the scene) ]" because the "tentative vote" did not comply with Rule 23.1(a), Ala. R.Crim. P., which requires that "[t]he verdict of the jury shall be unanimous, shall be in writing, signed by the foreman, and shall be returned in open court." 783 So. 2d at 63. In a well-reasoned dissent, Judge Cobb opined that the majority's application of Rule 23.1(a) resulted in a violation of Tribble's constitutional protection against multiple prosecutions for the same offense. We agree. *72 The Fifth Amendment protects a defendant against a second prosecution for the same offense after an acquittal. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). See also Art. I, § 9, Alabama Constitution 1901 (protecting a defendant's right against double jeopardy). Jeopardy attaches in a jury trial when the jury is empaneled and sworn. Illinois v. Somerville, 410 U.S. 458, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973); Anthony v. State, 49 Ala.App. 462, 273 So. 2d 222 (1972). Once jeopardy attaches, retrial of a defendant after a mistrial is barred unless the trial court declared the mistrial because of "manifest necessity." United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 580, 6 L. Ed. 165 (1824). Further, for the trial court to declare a mistrial, a "high degree of manifest necessity" must be demonstrated. Wadsworth v. State, 439 So. 2d 790, 792 (Ala.Crim.App. 1983), cert. denied, 466 U.S. 930, 104 S. Ct. 1716, 80 L. Ed. 2d 188 (1984). That a jury is "hopelessly deadlocked" constitutes a "manifest necessity" for a mistrial. Perez, 22 U.S. at 580; Arizona v. Washington, 434 U.S. 497, 509, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978); and Ex parte Anderson, 457 So. 2d 446, 448 (Ala.1984). However, a mistrial should be granted only as a last resort "where it is apparent that justice cannot be afforded" otherwise. Garrett v. State, 580 So. 2d 58, 60 (Ala.Crim.App. 1991); Dixon v. State, 476 So. 2d 1236, 1240 (Ala.Crim.App.1985). Section 12-16-233, Ala.Code 1975, provides: See also Rule 22.3 ("The court shall discharge the jury when ... there is no reasonable expectation that the jurors will be able to agree upon a verdict [or][a] manifest necessity exists for their discharge.") Although Alabama courts have not addressed the issue currently before this Court, the Superior Court of Pennsylvania has previously addressed this issue in a case with similar facts. See Common-wealth v. McCord, 700 A.2d 938 (Pa.Super.1997). In McCord, the jury informed the trial court that, while it was deadlocked on the charges of recklessly endangering another person and recklessly endangering the welfare of a child, it had reached a decision on the charge of aggravated assault. The trial court declared a mistrial on all charges. The defendant subsequently moved for a dismissal of all charges on double jeopardy grounds. The trial court denied the motion. The Superior Court of Pennsylvania, however, held that double jeopardy barred the retrial of the defendant on the charge of aggravated assault and on its lesser included offense of recklessly endangering another person, but did not bar the retrial of the defendant on the charge of recklessly endangering the welfare of a child. McCord, 700 A.2d at 939. In reaching its decision, that court reasoned: 3 "... [W]e reject the Commonwealth's suggestion that the jury's note to the judge which specifically indicated, `We are decided on the first charge but deadlocked on the second and third[,]' did not amount to a `report' of a verdict by the jury. Once again, the Commonwealth's reasoning ignores the usual situation where the jury reports it has reached a verdict, whereupon the court simply summons the jury into the courtroom and inquires whether the verdict is guilty or not guilty." (Emphasis in original omitted.) (Emphasis added.) McCord, 700 A.2d at 942. Like the jury in McCord, the jury in the case before us gave the trial judge a note indicating that the jurors had voted 12 to zero to acquit on the charge of leaving the scene. Because the jury had reached an unanimous decision on that charge, no "manifest necessity" existed for the trial judge to declare a mistrial on the charge. Regardless of the trial judge's belated opinion that the two charges were "so closely intertwined," the jury correctly followed the trial judge's instruction that it could find Tribble not guilty of one charge without finding him guilty of the other. Furthermore, a unanimous finding of not guilty on the leaving-the-scene charge is not inconsistent with an inability to decide the vehicular-homicide charge. The jurors unanimously could have entertained a reasonable doubt about one of the essential elements of leaving the scene not common to vehicular homicide. In any event, for all intents and purposes, the jury returned an unanimous not-guilty verdict on the charge of leaving the scene. Although the jury's verdict did not strictly comply with Rule 23.1(a), such noncompliance did not invalidate the verdict for double jeopardy purposes, inasmuch as the very same notice to the trial judge from the jury about its vote on the leaving-the-scene charge in this case would, under common practice in our trial courts, prompt a judge trying that charge alone to instruct the jury to complete the verdict form and to return to the courtroom for the verdict to be taken. Therefore, the trial court erred in denying the defendant's motion to dismiss the charge of leaving the scene. Consequently, we reverse that aspect of the judgment of the Court of Criminal Appeals affirming the defendant's conviction and sentence for leaving the scene. We remand this cause to the Court of Criminal Appeals for that court to remand to the trial court with instructions to vacate the defendant's conviction for leaving the scene and to enter a judgment of acquittal on that charge. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, and ENGLAND, JJ., concur. BROWN, J., recuses herself.[*] [1] The Court of Criminal Appeals also overruled Tribble's application for rehearing and denied his Rule 39(k), Ala. R.App. P., motion for additional facts. [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

June 30, 2000

b155c1f5-81dc-4e88-a28a-e3b63ed1da2d

Ex Parte Whitehead

777 So. 2d 854

1990177

Alabama

Alabama Supreme Court

777 So. 2d 854 (2000) Ex parte Larry Wayne WHITEHEAD. (Re Larry Wayne Whitehead v. State). 1990177. Supreme Court of Alabama. June 30, 2000. Rehearing Denied September 1, 2000. *855 Hoyt L. Baugh, Jr., Rainsville, for petitioner. Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for respondent. SEE, Justice. Larry Wayne Whitehead was convicted of capital murder for the death of Ernest Andrew Whitten, an Albertville police officer. The murder was made capital because it occurred during a burglary, see Ala.Code 1975, § 13A-5-40(a)(4); because it was related to Whitten's having served as a grand-jury witness against Whitehead, see § 13A-5-40(a)(14); and because it was related to Whitten's having been subpoenaed to testify against Whitehead in an upcoming trial, see § 13A-5-40(a)(14). The jury unanimously recommended the death penalty. The trial judge, finding four aggravating factors and no mitigating factors, accepted the jury's recommendation and sentenced Whitehead to death. The Court of Criminal Appeals affirmed Whitehead's conviction and sentence. See Whitehead v. State, 777 So. 2d 781 (Ala. Crim.App.1999). This Court granted Whitehead's petition for certiorari review and heard oral arguments. We now affirm the judgment of the Court of Criminal Appeals. The facts of this case are set out in the opinion of the Court of Criminal Appeals and are only briefly recounted here. Officer Whitten investigated allegations that Whitehead had stolen money from his employer, Hudson Foods, Inc., by having friends clock him in and out of work on days he did not actually work. Under Alabama's Habitual Felony Offender Act (Ala.Code 1975, § 13A-5-9), Whitehead faced a life sentence if he was convicted of theft. Whitehead had bragged that, if Whitten was not able to testify against him, then not only would he be acquitted of theft, but he would also be able to sue Hudson Foods for millions of dollars. Shortly before his theft trial, Whitehead, along with two accomplices, James Matthew Hyde and Stephen Brookshire, went to Whitten's house. The evidence suggested that Hyde went through an exterior door of Whitten's house and into a laundry room; that Hyde then knocked on the door separating the laundry room from the main portion of Whitten's house; that Whitten came to the door and partially opened it; and that Hyde shot Whitten through the door, inflicting a single, fatal wound. In his certiorari petition, Whitehead raises 22 issues concerning the merits *856 of his conviction and sentence, all of which he raised on appeal to the Court of Criminal Appeals. We have carefully reviewed all the issues presented in the petition and discussed in the briefs and at oral argument, and we have studied the opinion of the Court of Criminal Appeals. All of the issues Whitehead raises here were thoroughly addressed in the opinion of the Court of Criminal Appeals. We reiterate here, however, that the entry of a bullet into Whitten's house did not constitute an "entry" under the burglary statute. Ex parte Hyde, 778 So. 2d 237, 239 n. 2 (Ala. 2000); see Ala.Code 1975, § 13A-7-5(a). As we stated in Hyde, "the burglary statute requires an entry by some part of the defendant's body or the body of someone acting in complicity with the defendant." 778 So. 2d at 239 n. 2. However, that conclusion does not require us to reverse Whitehead's conviction, because the evidence does not support any theory except that an entry did occur. Either Whitehead's accomplice, James Matthew Hyde, or Whitehead himself (as Whitehead testified at Hyde's capital-murder trial), entered the laundry room of Whitten's house and shot Whitten through a door separating the laundry room from the main portion of the house. In considering Whitehead's arguments and reviewing the record, we have found no error, either in the guilt phase or in the sentencing phase of Whitehead's trial, that would warrant a reversal of his conviction or his sentence. We therefore affirm the judgment of the Court of Criminal Appeals. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.

June 30, 2000

bd566eba-04b6-49ad-9981-118f5ec16a22

Ex Parte Freeman

776 So. 2d 203

1981565

Alabama

Alabama Supreme Court

776 So. 2d 203 (2000) Ex parte David FREEMAN. (In re David Freeman v. State.) 1981565. Supreme Court of Alabama. March 10, 2000. Opinion on Denial of Rehearing May 26, 2000. Thomas M. Goggans, Montgomery, for petitioner. Bill Pryor, atty. gen., and Kathryn D. Anderson, asst. atty. gen., for respondent. LYONS, Justice. David Freeman was convicted of six counts of capital murder, all six counts related to the murders of Sylvia Gordon and Mary Gordon. Count one charged Freeman with the murder of two or more persons by one act or pursuant to one scheme or course of conduct. See § 13A-5-40(a)(10), Ala.Code 1975. Counts two and three charged Freeman with murder during a burglary in the first degree. See § 13A-5-40(a)(4). Counts four and five charged Freeman with murder during a robbery in the first degree. See § 13A-5-40(a)(2). Count six charged Freeman with the murder of Mary Gordon during a rape in the first degree. See § 13A-5-40(a)(3). *204 In August 1989, a jury found Freeman guilty on all six counts of capital murder and recommended, by a vote of 11-1, that the trial court sentence Freeman to death; the court did sentence him to death. However, on direct appeal, the Court of Criminal Appeals reversed Freeman's convictions and remanded the cause for a new trial, holding that the prosecution had used its peremptory strikes discriminatorily, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). See Freeman v. State, 651 So. 2d 573 (Ala. Crim.App.1992), rev'd on return to remand, 651 So. 2d 576 (Ala.Crim.App.1994). In his second trial, Freeman did not deny that he murdered Mary and Sylvia Gordon, but, instead, alleged that he had been unable to conform his conduct to the requirements of the law because of a mental disease or defect. Freeman was again convicted on all six counts, and the jury recommended the death penalty, by a vote of 11-1. The trial court, after weighing the aggravating and mitigating factors, accepted the jury's recommendation and sentenced Freeman to death by electrocution. The Court of Criminal Appeals affirmed the convictions and the sentence. See Freeman v. State, 776 So. 2d 160 (Ala.Crim. App.1999). This Court granted Freeman's petition for certiorari review and heard oral arguments. We affirm the judgment of the Court of Criminal Appeals. On March 11, 1988, Deborah Gordon picked up her 17-year-old sister Sylvia from school and they returned home. Freeman was waiting on the porch when the two girls arrived. He had arrived at the house after an hour-long bicycle ride. He had recently met the Gordon family and had developed a romantic interest in Sylvia. After eating her lunch, Deborah went to work and left her sister Sylvia and Freeman sitting on the couch. Later that afternoon, Freeman gave Sylvia a note stating that he loved her and did not want to lose her. Sylvia, in return, gave Freeman a note stating that she viewed their relationship as a friendship and that she did not want to have a serious relationship with him. Deborah testified at trial that Sylvia had planned to tell Freeman that day that she did not wish to see him anymore. Around 1:00 a.m. the next morning, Deborah Gordon returned to find that her sister Sylvia and her mother, Mary, had been killed. Sylvia's body was found on her bed; the only clothes on her body were a T-shirt and socks. Her jeans and underwear had been cut off her body and she had been stabbed 22 times. An autopsy determined that she had bled to death as a result of her stab wounds, although none of the stab wounds would have been, by itself, fatal. Experts testified that she had remained conscious for approximately eight minutes after the first wounds were inflicted and that some of her wounds were defensive in nature. Mary Gordon's body was found on her bedroom floor. Her jeans and underwear had been cut from her body. She had been raped and stabbed 14 times; two of the stab wounds would have been fatal. Upon leaving the Gordon home, Freeman took the Gordons' automobile and drove around for some time. He abandoned the car in a parking lot near his apartment; he then changed clothes and telephone for a taxi to take him to the truck stop where he worked. The next morning, Freeman was questioned by the police and arrested. Initially, Freeman denied any knowledge of the killings, but he later gave a statement admitting to stabbing the mother. However, Freeman declared that he "got dizzy" and blacked out during the course of the killings and could not remember specific details. In late 1988 and early 1989, Freeman was given a mental evaluation by the staff at Taylor Hardin Secure Medical Facility. Three psychologists, working independently, found that Freeman did not suffer from any mental disease or defect that *205 would cause him to lack the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. In 1995, he was evaluated by Dr. Guy Renfro, a forensic psychologist, who agreed with the earlier assessment of Freeman's mental state. Freeman raises the same issues in his certiorari petition that he raised before the Court of Criminal Appeals. The opinion of the Court of Criminal Appeals provides a thorough treatment of the facts of this case, and it correctly disposes of each issue raised by Freeman in his petition. Because this is a death-penalty case, this Court must, under Rule 39(k), Ala. R.App. P., review the record for plain error, i.e., any "error [that] has or probably has adversely affected the substantial rights" of the defendant. Ex parte Jackson, 672 So. 2d 810, 811 (Ala. 1995), cert. denied, 517 U.S. 1247, 116 S. Ct. 2505, 135 L. Ed. 2d 195 (1996). We have reviewed the proceedings for plain error and have found none. As required by § 13A-5-53(a), Ala. Code 1975, we have "review[ed] the propriety of the death sentence" in this case. Our review convinces us (1) that the sentence imposed upon Freeman was not "imposed under the influence of passion, prejudice, or any other arbitrary factor"; (2) that "an independent weighing of the aggravating and mitigating circumstances at the appellate level indicates that death was the proper sentence"; and (3) that Freeman's sentence of death is not "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." § 13A-5-53(b)(1), (2), and (3). See Ex parte Maples, 758 So. 2d 81 (Ala.1999) (murder made capital because two or more persons were murdered pursuant to one scheme or course of conduct); Ex parte Roberts, 735 So. 2d 1270 (Ala.1999) (murder made capital because it occurred during a robbery); Neal v. State, 731 So. 2d 609 (Ala.Crim. App.1997), aff'd, 731 So. 2d 621 (Ala.1999) (murder made capital because it occurred during a burglary); Brooks v. State, 695 So. 2d 176 (Ala.Crim.App.1996), aff'd, 695 So. 2d 184 (Ala.1997), cert. denied, 522 U.S. 893, 118 S. Ct. 233, 139 L. Ed. 2d 164 (1997) (murder made capital because it occurred during a rape). Having considered the record, together with the petition and the briefs and the arguments of counsel, this Court concludes that the judgment of the Court of Criminal Appeals must be affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., concurs in part and dissents in part. JOHNSTONE, Justice (concurring in part and dissenting in part). I concur in the convictions for both murders on all theories except the theory of burglary-murder. The location element of burglary traditionally required proof of a breaking and entering. In enacting § 13A-7-5, Ala.Code 1975, the legislature added unlawfully remaining as an alternative for the location element. I know from my service in the Alabama House of Representatives *206 when that language originated that the legislature intended for this new alternative to reach only clandestine remaining that is hiding inside the premises to await an opportune time to commit the intended crime. Ex parte Gentry, 689 So. 2d 916 (Ala.1996), respected this limitation. Davis v. State, 737 So. 2d 480 (Ala. 1999), in overruling Gentry and eliminating this limitation, exceeds the intent of the legislature and violates the rule that criminal statutes be strictly construed against the State. The Davis rule will allow burglary convictions of unruly guests in fact scenarios never contemplated by the legislature as burglaries. We should return to the faithful Gentry interpretation. A particular observation is appropriate in support of the convictions on the theory of robbery-murder. While the petitioner argues that his stealing the car was a mere afterthought, his statement to the police belies this argument. Referring to a time after he had finished stabbing both of the victims, he stated: This statement implies that the petitioner was contemplating the theft of the car while he waited to learn whether he needed to apply still more force to the victims in order to steal the car. The opinion of the Court of Criminal Appeals recites this portion of the petitioner's statement, but only in a portion of the opinion discussing the burglary-murder theory as distinguished from the robbery-murder theory. Changing the subject, I will note that this Court has not examined the petitioner's double-jeopardy claims because a majority deems that the death penalty renders the double-jeopardy issue academic if not moot. Our affirmance in this case should not be construed as any modification of or retreat from Ex parte Rice, 766 So. 2d 143 (Ala.1999). The death penalty is appropriate in this case regardless of the disposition of the burglary-murder theory. Thus I concur with the main opinion in its affirmance of the death penalty for each of the two murders. LYONS, Justice. APPLICATION OVERRULED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., concurs in part and dissents in part. JOHNSTONE, Justice (concurring in part and dissenting in part). I concur to overrule in all respects, except that I would grant as to the convictions on the theory of burglary-murder.

May 26, 2000

31649e62-7040-4477-b848-9eb674497d0f

Ex Parte Pilley

789 So. 2d 888

1980132

Alabama

Alabama Supreme Court

789 So. 2d 888 (2000) Ex parte Stephen PILLEY. (In re Stephen Pilley v. State). 1980132. Supreme Court of Alabama. January 28, 2000.[*] Opinion on Overruling of Rehearing June 16, 2000. *889 Joe W. Morgan, Jr., Birmingham, for petitioner. Bill Pryor, atty. gen., and Michelle Riley Stephens, asst. atty. gen., for respondent. LYONS, Justice. Stephen Pilley was convicted of capital murder, based on the murders of five persons committed pursuant to one scheme or course of conduct. See § 13A-5-40(a)(10), *890 Ala.Code 1975. The jury recommended, by a 12-0 vote, that Pilley be sentenced to death by electrocution. The trial court concurred with that recommendation and sentenced Pilley to death. The Court of Criminal Appeals affirmed Pilley's conviction and sentence. See Pilley v. State, 789 So. 2d 870 (Ala.Crim.App. 1998). This Court granted Pilley's petition for certiorari review, and we now reverse and remand. The Court of Criminal Appeals stated the following facts: 789 So. 2d 874-75. In his brief, Pilley presents 14 issues for our review; however, we will address only two of them. We conclude that the trial court erred in refusing to declare a mistrial after learning that a deputy district attorney had contacted a juror after the jury had been selected but before the trial had begun; that juror ultimately served as the foreman of the jury that convicted Pilley and recommended the imposition of the death penalty. That error requires a reversal. We also find it appropriate, however, to address Pilley's argument regarding the sufficiency of the evidence, because the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution would bar a retrial if Pilley is correct in arguing that the evidence was insufficient to establish his guilt. Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978); see, also, Ex parte Roberts, 662 So. 2d 229 (Ala.1995). Pilley argues that the trial court erred in denying his motion for a mistrial because of telephone contact between a deputy district attorney and a member of the jury. Alternatively, Pilley argues that the trial court erred in refusing to put an alternate juror in place of the juror who had had the contact with the deputy district attorney. Before trial, Deputy District Attorney Jeff Wallace ("the prosecutor") received a list containing the names of all the citizens summoned for jury service during the week of Pilley's trial. From that jury venire, 12 regular jurors and 2 alternate jurors were selected to try the State's case against Pilley. After that jury had been selected, Lane Tolbert, who is a deputy district attorney in the prosecutor's office but who did not work on Pilley's case, recognized a name on the jury venire list. He notified the prosecutor that one of the jurors selected in Pilley's case might be a person with whom he attended church. The prosecutor then asked Tolbert to look at the jurors through a window in the door of the courtroom to determine whether the juror was the man he knew from church. Tolbert did not do as the prosecutor asked; instead, Tolbert telephoned the juror's residence and spoke with his wife, whom he apparently also knew from church. According to the record, Tolbert confirmed during this conversation that the juror was indeed the man with whom he attended church. The man had been selected as a regular juror in the Pilley case. Although the trial court had admonished all jurors that they were to call to the court's attention any contacts they might receive concerning the case, this juror did not follow the court's instruction. Instead, on the following day, the juror telephoned Tolbert and asked him why he had telephoned his wife. Tolbert said that during the ensuing conversation he asked the juror whether their contact would affect his ability to decide the case. After the juror assured Tolbert that he would not be affected by the telephone call, Tolbert said that he advised the juror that he need not disclose their conversation unless he was asked about it. There is no transcript of the conversations between Tolbert and the juror and between Tolbert and the juror's wife; therefore, we cannot state with certainty the entire content of these conversations. The prosecutor learned of the contact between Tolbert and the juror; the prosecutor learned of it on the second day of the *892 trial, after the jury had been sworn and before the lawyers gave their opening statements. The prosecutor then advised the trial court about the two telephone calls. There is no indication in the record that the prosecutor learned about the telephone calls from the juror. When asked by the trial court what took place in his conversation with the juror, Tolbert stated: At that point, Pilley moved for a mistrial, but the trial court deferred ruling on Pilley's motion until after the court had talked with the juror. The record then reflects a colloquy between the juror and the trial court during which the juror told the trial court that his contact with Tolbert would not affect his ability to be an impartial juror. As that colloquy continued, the juror described to the court his unfamiliarity with Tolbert's position: The trial court then cautioned the juror not to talk to the other jurors about his knowing Tolbert, and the juror replied: There are two possible interpretations of the extent of the juror's knowledge about Tolbert's employment. Under one interpretation, the juror was ignorant of any relationship between Tolbert and the district attorney's office. Under another interpretation, the juror was aware that Tolbert had some relationship with the office but did not know his precise title or function within that office. *893 The trial court denied Pilley's motion for a mistrial. Pilley then asked the court to discharge the juror and replace him with one of the two alternate jurors. The court deferred until the conclusion of the trial its ruling on Pilley's request that the juror be replaced by an alternate, but it ultimately denied that request. The trial went forward, and the jury found Pilley guilty and unanimously recommended the death penalty. The juror who had talked with Tolbert served as the foreman of the jury. The Court of Criminal Appeals concluded that, under the circumstances of this case, and given the trial court's questioning of both the juror and Tolbert, the trial court did not abuse its discretion in denying Pilley's motion for a mistrial and allowing the juror to serve. Central to the Court of Criminal Appeals' rationale was the assumption that the juror was ignorant of any relationship between Tolbert and the district attorney's office. The appropriate standard for evaluating improper contacts with a juror is stated in Roan v. State, 225 Ala. 428, 143 So. 454 (1932), where the test is articulated in terms of whether the contacts might have had a prejudicial effect on the juror: 225 Ala. at 435, 143 So. at 460 (emphasis added). This standard casts a light burden on the defendant, especially here, where we are not reviewing for "plain error," but are reviewing rulings made by the court after defense counsel had made appropriate objections. We deem it equally plausible, if not more plausible, that the juror's ignorance of his fellow church member's employment involved ignorance only of Tolbert's function in the district attorney's office, and not the broader ignorance of any relationship with that office whatever. We conclude that the Roan standard for determining prejudice has been satisfied. Had the juror, during voir dire examination, stated that he attended church with Tolbert, that information would have given Pilley a ground to challenge him for cause or a reason to exercise a peremptory challenge to remove him from the jury. Knop v. McCain, 561 So. 2d 229 (Ala.1989); England v. State, 601 So. 2d 1108 (Ala.Crim.App.1992). This murder trial was not anticipated to last for an inordinately long time. The presence of alternate jurors is hard to justify if the circumstances here presented did not warrant discharging the regular juror who had contact with Tolbert and seating an alternate juror in his place. If this were a civil case with a substantial punitive-damages award, we would be deeply troubled by evidence of similar conduct by the partner of a plaintiff's attorney who was not himself involved in the trial of the case. Here, where the penalty is the maximum inflicted by law, death, we find such contact with a prospective juror by a member of the district attorney's office intolerable. Given the circumstances of this case, we must conclude that Pilley is entitled to a new trial. Pilley argues that the evidence presented by the State was insufficient to convict him. He insists that the State did not prove that he committed the crimes of which he was accused and convicted. Specifically, Pilley argues that the State's circumstantial evidence was not sufficient to prove that he had the intent to kill and that there was no evidence of his complicity in the robberies and murders. *894 In Ex parte Woodall, 730 So. 2d 652 (Ala.1998), this Court addressed the role of appellate courts in reviewing the sufficiency of the evidence in a criminal case: 730 So. 2d at 658. The Court of Criminal Appeals addressed the question of the sufficiency of the evidence against Pilley: 789 So. 2d 877. After reviewing the record in this case, we agree with the Court of Criminal Appeals that the State presented sufficient *895 evidence from which the jury could have found that Pilley either committed the murders or was an accomplice in those murders, and that he had possessed the requisite intent to kill. We conclude that the evidence was sufficient to sustain Pilley's conviction, and, therefore, that double-jeopardy principles do not bar a retrial. We reverse the judgment of the Court of Criminal Appeals and remand the cause for further proceedings consistent with this opinion. REVERSED AND REMANDED. MADDOX, HOUSTON, COOK,[**] SEE, and JOHNSTONE, JJ., concur. BROWN, J., recuses herself.[***] LYONS, Justice. The State argues that this Court should apply the standard for evaluating unprovoked juror misconduct, as stated in Dawson v. State, 710 So. 2d 472 (Ala. 1997), instead of the standard for evaluating improper contacts by a deputy district attorney with a juror, as stated in Roan v. State, 225 Ala. 428, 143 So. 454 (1932). We disagree. In Dawson, a juror had conducted an unauthorized inspection of the crime scene. In this case, we are presented not only with the juror's act of telephoning Tolbert instead of reporting the conduct to the court, but also with Tolbert's acts in initiating the contact with the juror's wife and in talking with the juror when he telephoned, a situation not presented in Dawson. APPLICATION OVERRULED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, and JOHNSTONE, JJ., concur. BROWN, J., recuses herself.[†] [*] Note from the reporter of decisions: This opinion was released by the Supreme Court under the date January 28, 2000. The case was actually released to the public on January 27, 2000. [**] Although Justice Cook did not sit for oral argument, he has listened to the tape of oral argument. [***] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case. [†] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

June 16, 2000

e2864eac-6fc8-4b5e-bf19-ea6b87950871

Norfolk Southern Ry. Co. v. Denson

774 So. 2d 549

1981364, 1981365

Alabama

Alabama Supreme Court

774 So. 2d 549 (2000) NORFOLK SOUTHERN RAILWAY COMPANY v. Vernon L. DENSON. Norfolk Southern Railway Company v. James A. Martin. 1981364 and 1981365. Supreme Court of Alabama. June 16, 2000. *550 Crawford S. McGivaren, Jr., and Steve A. Tucker of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellant. Clarence M. Small, Jr., Duncan Y. Manley, and Deborah Alley Smith of Rives & Peterson, P.C., Birmingham, for appellees. James E. Simpson, Stephen A. Rowe, and Jacquelyn A. Gonzales of Lange, Simpson, Robinson & Somerville, Birmingham, for amicus curiae Association of American Railroads. COOK, Justice. Norfolk Southern Railway Company ("Norfolk Southern") appeals from judgments entered on jury verdicts in two separate actions awarding James A. Martin *551 and Vernon L. Denson $575,000 and $225,000, respectively. We reverse and remand. Virtually all the facts out of which these actions arose are undisputed. At approximately 2:55 p.m. on March 24, 1995, Martin and Denson, as engineer and conductor, respectively, were operating Norfolk Southern's locomotive number 8741. Martin and Denson had been employed by Norfolk Southern for 27 years and 30 years, respectively. Number 8741 was the lead locomotive on a train consisting of approximately 62 cars. The locomotive was travelling with the "nose," that is, the "short hood," forward. The temperature was in the "low 80s," the locomotive was not air conditioned, and the side windows were down. As the train arrived in Fulton, at the point at which Norfolk Southern's track intersects Main Street, a tractor-trailer combination operated by Michael Weber and owned by his employer, Francis Powell Enterprises, Inc., attempted to cross the tracks in front of the train. When Martin realized that the truck was not going to stop for the train and that a collision was imminent, he instituted emergency procedures and lay down on the floor of the cab of the locomotive; Denson was already lying down. The train struck the truck; it proceeded on down the track, dragging the truck and trailer for 1,642 feet before coming to a stop. However, the impact punctured the truck's fuel tank, and, approximately 450 feet from the point of impact, the fuel spilling from the tank ignited. As the train slowed, flames from the burning fuel began coming in the side windows. Consequently, Denson and Martin crawled to the back door to escape the heat. When Denson opened the door, he said, there was a "`poof of fire" and flames began coming into the cab through the opened door.[1] (Reporter's Transcript, at 272.) Both men were severely burned. They both sued Norfolk Southern, pursuant to the Federal Employers Liability Act, 45 U.S.C. § 51 et seq. ("FELA"), as well as Powell and others ("the truck defendants"). Martin and Denson eventually settled with the truck defendants for $625,000 and $275,000, respectively. In the trial of the remaining claims in the two actions, the jury considered only two theories of recovery against Norfolk Southern. First, the plaintiffs contended that in providing them with a locomotive that was not air conditioned, Norfolk Southern had failed to provide them a safe place to work. Second, they sought recovery under a theory that Norfolk Southern had failed to train them on how to protect themselves in the event of a collision. In each case, the trial court denied Norfolk Southern's motions for a judgment as a matter of law as to both claims. The jury returned general verdicts in favor of each plaintiff, decreased by the amounts of the settlements with the truck defendants. To Martin, the jury awarded $575,000 ($1,200,000 [total damages]$625,000 [received in settlement] = $575,000). To Denson, it awarded $225,000 ($500,000 [total damages]$275,000 [received in settlement] = $225,000). Norfolk Southern moved for a judgment as a matter of law. When that motion was denied, Norfolk Southern appealed. The Association of American Railroads filed a brief in this Court as amicus curiae. The appeal presents two dispositive issues. The first is whether the FELA imposes upon Norfolk Southern a duty to provide its conductors and engineers with air-conditioned locomotives. The second is whether the FELA imposed upon Norfolk Southern a duty to train the plaintiffs to take shelter in an area of the locomotive in which, in this case, they would not have *552 been exposed to flames entering the windows. "The FELA provides the exclusive remedy for an injury caused by `the negligence of [the railroad] ... or by reason of any defect or insufficiency, due to its negligence, in its ... equipment.'" Waymire v. Norfolk & Western Ry., 65 F. Supp. 2d 951, 953 (S.D.Ind.1999). "To prevail on an FELA negligence claim, the plaintiff must prove the traditional common law elements of negligence: duty, breach of that duty, foreseeability, and causation." CSX Transp., Inc. v. Dansby, 659 So. 2d 35, 37 (Ala.1995). "Pursuant to the FELA, a railroad company has the duty to provide its employees with a reasonably safe work environment; it must use reasonable care in fulfilling this duty." Id. Under this theory of recovery, the plaintiffs reason as follows: (1) the FELA imposes a duty upon Norfolk Southern to provide a safe place to work; (2) because locomotive 8741 was not air conditioned, it was being operated with the windows down; (3) because the windows were down, the flames entered the windows and burned the plaintiffs; (4) because locomotive 8741 was not air conditioned, it was not a safe place to work; and, therefore, (5) the FELA imposes a duty upon Norfolk Southern to equip its locomotives with air conditioning, and it breached that duty in this case. "While federal law governs the substantive rights of the parties in FELA cases, procedural matters are governed by applicable state rules when [the cases are] tried in state court." Mitchell v. Missouri-Kansas-Texas R.R., 786 S.W.2d 659, 661 (Tex.), cert. denied sub nom., Missouri Pacific R.R. v. Mitchell, 498 U.S. 896, 111 S. Ct. 247, 112 L. Ed. 2d 205 (1990). The rule in Alabama is that the court, rather than the jury, determines the existence of a duty. State Farm Fire & Cas. Co. v. Owen, 729 So. 2d 834 (Ala.1998). This rule is procedural in nature; it is not a substantive right. 786 S.W.2d at 661. Thus, whether the FELA imposes a duty upon Norfolk Southern to provide its conductors and engineers with air-conditioned locomotives is a question this Court must decide as a matter of law. In deciding that question, we do not write on a clean slate. The issues before us involve matters that are heavily regulated by Congress. See, e.g., the Federal Railway Safety Act of 1970, 49 U.S.C. § 20101 et seq. (the "FRSA"), and the Federal Locomotive Inspection Act, 49 U.S.C. § 20701 et seq. (the "FLIA") (formerly, the Boiler Inspection Act). We do not overlook the fact that these actions were based on the FELA, and, therefore, that they do not involve a question of federal preemption of a state-law claim. Instead, we are applying federal common law as informed by Congressional and federal administrative actions. Nevertheless, the issues before us involve policy considerations that closely parallel those involved in preemption cases. One of the primary goals of preemption is uniformity. "Through the Supremacy Clause of the United States Constitution, Congress may induce uniformity of regulation and eliminate barriers among states by preemption of state regulation." Christi Davis & Douglas M. Branson, Interstate Compacts in Commerce and Industry: A Proposal for "Common Markets Among States," 23 Vt. L.Rev. 133, 135 (1998) (footnote omitted). "Congress frequently states uniformity to be both the goal of its substantive federal legislation and its purpose in enacting express preemption provisions, and the language of those provisions [reflects] the uniformity goal. The examples of ERISA, the FRSA and the Vehicle Safety Act are illustrative." Susan J. Stabile, Preemption of State Law by Federal Law: A Task for Congress or the Courts?, 40 Vill. L.Rev. 1, 19 (1995) (emphasis added). *553 Indeed, the FRSA provides in pertinent part: (Emphasis added.) See also Burlington Northern & Santa Fe Ry. v. Doyle, 186 F.3d 790, 794 (7th Cir.1999) ("The FRSA also advanced the goal of national uniformity of regulation because [§ 20106] expressly preempts state laws regulating rail safety."); Springston v. Consolidated Rail Corp., 130 F.3d 241, 245 (6th Cir.1997) ("Federal law preempts plaintiff's claims based upon the need for extra-statutory warning devices on the train."); Illinois Cent. R.R. v. Fordice, 30 F. Supp. 2d 945, 955 (S.D.Miss.1997); ("to ensure national uniformity of all laws and standards relating to railroad safety, the FRSA includes a broad preemption provision"); O'Bannon v. Union Pacific R.R., 960 F. Supp. 1411, 1416 (W.D.Mo.1997) (the FRSA's "preemption clause expresses a preference for national uniformity"). The promotion of national uniformity in locomotive-safety regulation was also one of the primary goals of the FLIA and its predecessor, the Boiler Inspection Act, 38 Stat. 1192, codified as amended, 49 U.S.C. §§ 20701-03. Section 20701 provides: (Emphasis added.) In Napier v. Atlantic Coast Line R.R., 272 U.S. 605, 47 S. Ct. 207, 71 L. Ed. 432 (1926), the United States Supreme Court considered "whether the Boiler Inspection Act ha[d] occupied the field of regulating locomotive equipment used on a highway of interstate commerce, so as to preclude state legislation." Id. at 607, 47 S. Ct. 207. Napier dealt with appeals from actions challenging two state laws that purported to require certain accessories on locomotives. Specifically, a Georgia statute required locomotives to be equipped with an "automatic door to the firebox," and a Wisconsin statute required a "cab curtain." Id. Thus, each action "sought to enjoin state officials from enforcing ... a state law which prohibit[ed] use within the State *554 of locomotives not equipped with the device prescribed." Id. The Court noted that "[e]ach device was prescribed by the State primarily to promote the health and comfort of engineers and firemen." Id. at 610, 47 S. Ct. 207 (emphasis added). Regarding the "automatic fire door," the Court said: Id. at 609-10, 47 S. Ct. 207. Regarding the "cab curtain," the Court said: Id. at 610, 47 S. Ct. 207. Notwithstanding the laudable purposes of these accessories, the Court held that the state laws were preempted by the Boiler Inspection Act, the predecessor to the FLIA, and were, therefore, invalid. It reasoned that the scope of the federal statute "`include[d] the entire locomotive and tender and all parts and appurtenances thereof,'" id. at 608, 47 S. Ct. 207, and that Congress had conferred upon the Interstate Commerce Commission, not only the duty to "inspect," but to "prescribe the rules and regulations by which fitness for service shall be determined." Id. at 612, 47 S. Ct. 207 (emphasis added). "Thus," said the Court, "the [Interstate Commerce] Commission sets the standard."[2]Id. (emphasis added). The Court explained that "[i]f the protection now afforded by the Commission's rules is deemed inadequate, application for relief must be made to it." Id. at 613, 47 S. Ct. 207. Napier is still controlling authority for the proposition that the FRA, acting through the Administrator, see supra, note 1, "sets the standard" by which a locomotive's "fitness for service shall be determined." 272 U.S. at 612, 47 S. Ct. 207. Indeed, Napier's "broad preemptive sweep is necessary to maintain uniformity of railroad operating standards across *555 state lines." Law v. General Motors Corp., 114 F.3d 908, 910 (9th Cir.1997); see also Scheiding v. General Motors Corp., 22 Cal. 4th 471, 481, 993 P.2d 996, 1002, 93 Cal. Rptr. 2d 342, 349 (2000) ("Napier has long established [that] Congress `intended to occupy the field' of locomotive equipment"). It is essentially undisputed that if these claims were based on state law, they would be preempted by the FLIA and the FRSA. The plaintiffs remind us that this is an action based on federalnot statelaw. Thus, they contend, the doctrine of preemption is inapposite. We disagree with that contention. The practical effect of such a rule would be identical whether the rule is based on a state statute or on this Court's interpretation of federal law. Indeed, the need for uniformity, which is one of the bases of preemption, has been addressed by the Federal Railroad Administrator ("the Administrator") in a context analogous to the one before us. On March 10, 1978, the Administrator issued a "Policy Statement," in which he "address[ed] jurisdictional issues arising with respect to the operations of common carriers in the general system of rail transportation." 43 Fed.Reg. 10584, 10585. More specifically, the Policy Statement attempted to define the boundary between the area of responsibility occupied by the Federal Railroad Administration ("the FRA") and that occupied by the Occupational Safety and Health Administration ("OSHA").[3] The Administrator identified three subject areas that are the particular concern of the FRA, namely, "(1) track, roadbed, and associated devices and structures, (2) equipment and (3) human factors." Id. at 10585. The clear implication of the Policy Statement was that the FRA intended to exert its statutory authority to regulate in those three subject areas to the exclusion of OSHA. For example, it stated: Id. at 10586-87 (emphasis added). A particular subject area as to which the Administrator expressed his intention to occupy the field was "in respect to the design of locomotives and other rolling equipment used on a railroad." Id. at 10587 (emphasis added). The Administrator referred specifically to the "windows of locomotive cabs," as falling within the FRA's responsibility to enforce the safety provisions of the FLIA and the FRSA. Id. at 10586. He noted (1) that "[p]ublic comment ha[d] been requested on the need for improved glazing materials in windows of locomotive cabs" and (2) that "[a] broad survey of railroad operating rules and *556 practices (including employee training and testing) ha[d] been initiated", and he stated: "As the primary regulatory agency in the area of railroad operations, it will be the responsibility of FRA to evaluate what further Federal action may be required." Id. (emphasis added). Since the publication of this Policy Statement, the Administrator has followed through on his suggestion that further regulations and evaluations would be forthcoming. On March 31, 1980, for example, the FRA promulgated a comprehensive and detailed set of regulations and specifications relating to the equipment of locomotives. 45 Fed.Reg. 21109, codified as amended, 49 C.F.R. § 229.1 et seq. Although the regulations address certain aspects of cab environment, such as, "windows," § 229.119(b), and "ventilation," § 229.119(d), neither they, nor any other regulations promulgated by the FRA, require air conditioning. It would be inconsistent with the sense of the FRA as to its jurisdiction to hold that the judiciary could supersede the FRA's regulations by requiring common carriers to equip their locomotives with air conditioning. Whether the impetus for change comes through another federal agency, such as OSHA, or through the judiciary's construing the FELA, the impetus constitutes an intrusion into the FRA's regulatory authority. Moreover, the plaintiffs have cited no cases holding that the FELA requires railroads to equip their locomotives with air conditioning and we are not convinced that such a requirement would be adopted by jurisdictions universally, and we question whether it would be the proper role of the judiciary to adopt or impose such a requirement. To be sure, the plaintiffs have cited Weaver v. Missouri Pacific R.R., 152 F.3d 427 (5th Cir.1998), and Palmer v. Union Pacific R.R., 12 F. Supp. 2d 588 (S.D.Tex.1998). However, those cases involved claims that the FELA required railroads to equip their locomotives with air conditioning or protective screens in order to protect the operators from projectiles, such as, rocks, bottles, or bullets. We know of no case holdingas the plaintiffs urge us to dothat the FELA simply requires railroads to air condition their locomotives. Thus, were this Court to hold that the FELA carries such a requirement, the uniformity that is jealously guarded by the FRA, and on which various federal policies are grounded, would be destroyed. Under such a construction of the FELA, locomotives operating in Alabama would have to be air conditioned, while those operating in neighboring states would not. The territorial conflict created by judicial caprice would constitute the "piecemeal regulation of individual hazards" of the sort eschewed by the FRA. 43 Fed.Reg. at 10586. Another factor we consider is the cost to the carrier of complying with such a holding in relation to the benefit sought. Specifically, the evidence demonstrated that in 1992 the cost of equipping a locomotive with air conditioning would have been between $12,000 and $16,000. (Reporter's Transcript, at 406.) Thus, the modifications proposed by the plaintiffs are not incidental, but substantial. However, the evidence also suggested that fires resulting from crossing collisions are relatively rare. For example, Martin testified that he has been involved in crossing accidents with "more than 75 automobiles and 6 trucks" (Reporter's Transcript, at 202), but that only one of those accidents resulted in a fire. In our view, questions relating to the relationship of cost and benefit require an analysis for which the FRA is peculiarly adept and appropriately suited. For these reasons, we refuse to hold that locomotives operating in Alabama must be air conditioned. Instead, on the authority of Napier and the body of federal statutes and published specifications that regulate locomotives and their accessories, we hold that Norfolk Southern had no duty under the FELA to equip its locomotives with air conditioning. The trial court erred, therefore, in denying Norfolk *557 Southern's motion for a judgment as a matter of law on this claim. The plaintiffs next contend that the FELA imposed upon Norfolk Southern a duty to train the plaintiffs (as engineer and conductor) to take shelter in an area of the locomotive in whichin this casethey would not have been exposed to flames entering the windows. In support of this claim, they presented the testimony of a "consulting engineer," William R. Bogett. In their case in chief, the plaintiffs repeatedly attempted to elicit an opinion from Bogett "as to whether or not training should be provided to employees of railroads who operate locomotive engines, insofar as what they should do when involved in such a collision." (Reporter's Transcript, at 435.) Norfolk Southern objected to Bogett's offering such an opinion, on the ground that Bogett had no "experience with respect to either the operation of a locomotive [or] the training of personnel." The trial court sustained Norfolk Southern's objections. Thus, the plaintiffs offered no testimony as to what training railroads were required to provide their locomotive operators. Nevertheless, over Norfolk Southern's objection, Bogett was allowed to state that, in his opinion, the safest place for locomotive operators to be when facing an imminent collision is in the "vestibule," that is, in the front of the locomotive, near the point of impact. More specifically, he testified: (Reporter's Transcript, at 436-37.) As this excerpt from Bogett's testimony demonstrates, his opinion addressed only the possibility of injury from bruises and contusions as a result of being cast about the cab, or as a result of being speared or crushed by objects intruding into the cab. It is undisputed that the plaintiffs did not suffer injuries of these kinds. The only injuries the plaintiffs complain of are their burns. But Bogett offered no opinion as to where locomotive operators should go to protect themselves from fire, as in this case. Moreover, Bogett conceded that the best position for locomotive personnel to assume depends on the kind of collision that is imminent. He testified, in other words, that one rule cannot cover all contingencies. Indeed, during the testimony of William E. Honeycutt, an officer of Norfolk Southern ("assistant vice-president, operating rules"), Norfolk Southern introduced a photograph of a locomotive that had apparently struck a log truck. The "vestibule" section of that locomotive had been *558 obliterated. According to Honeycutt's opinionif any was needed on that point had the operators of that locomotive been in the vestibule section, they, too, would have been destroyed. In this case, the plaintiffs sought to protect themselves from the impending collision by lying down on the floor. Martin testified that this was a precaution he had learned from more experienced locomotive operators. Indeed, the plaintiffs were veterans of numerous crossing accidents. Denson testified that in only one other crossing accident had he been injured; in that accident he had suffered a sprained ankle. He stated that, even after the accident out of which these present cases arose, he continued to lie down on the floor when faced with an imminent collision, because, he stated, he "found that that is a good place to go ... when ... a truck is about to cause a collision with [his] train." (Reporter's Transcript, at 376.) In short, there was a complete failure of proof as to the existence of a duty on the part of Norfolk Southern to instruct these plaintiffs in any manner material to this case. Given the way these cases are postured, we refuse to hold that Norfolk Southern had a duty to instruct Martin and Denson to go to the vestibulethe area of the locomotive nearest the point of impact. Consequently, the trial court erred in denying Norfolk Southern's motion for a judgment as a matter of law on the plaintiffs' claim alleging the breach of such a duty. The judgments of the trial court are reversed, and these causes are remanded for disposition consistent with this opinion. 1981364REVERSED AND REMANDED. 1981365REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. SEE, J., concurs in the result. [1] The only significant factual dispute in this case involves the extent to which Denson and Martin were directly threatened by the flames that were coming in the window, that is, the extent to which they were endangered before Denson opened the door. [2] The Interstate Commerce Commission exercised this authority until 1966. On October 15, 1966, Congress created the Federal Railroad Administration. Pub.L. 89-670, 80 Stat. 932, pertinent portions codified as amended, 49 U.S.C. 103(a)-(c). Its purpose was to "carry out all railroad safety laws of the United States." Id. At the head of the FRA is the "Federal Railroad Administrator," § 103(b), to whom was delegated the responsibility theretofore vested in the Secretary of Transportation to "ensur[e] that the laws are uniformly administered and enforced." Section 103(a). See also 49 C.F.R. § 1.49(c)(6) and (m). As to the FLIA, specifically, the Administrator is to "[c]arry out the ... laws relating generally to safety appliances and equipment on railroad engines and cars, and protection of employees and travelers." Section 1.49(c). See Association of American Railroads v. Department of Transp., 198 F.3d 944 (D.C.Cir. 1999). [3] "OSHA `is the agency of the U.S. Department of Labor which administers the Occupational Safety and Health Act [of 1970] (29 U.S.C. 651 et seq.) which provides for the establishment of safety and health standards generally.'" Caro-Galvan v. Curtis Richardson, Inc., 993 F.2d 1500, 1511 n. 23 (11th Cir.1993).

June 16, 2000

93883a78-e351-4204-b6a7-7664757be9d5

City of Spanish Fort v. City of Daphne

774 So. 2d 567

1982114

Alabama

Alabama Supreme Court

774 So. 2d 567 (2000) CITY OF SPANISH FORT v. CITY OF DAPHNE et al. 1982114. Supreme Court of Alabama. June 16, 2000. *568 Daniel G. Blackburn and David J. Conner of Daniel G. Blackburn, P.C., Bay Minette, for appellant. Jerome E. Speegle and Ben H. Harris III of Zieman, Speegle, Jackson & Hoffman, L.L.C., Mobile, for appellees. MADDOX, Justice. The City of Daphne and the City of Spanish Fort are both located in Baldwin County. Each disputes the validity of purported annexations by the other of certain parcels of property in Baldwin County. The trial court entered a judgment in favor of Daphne, holding that its purported annexation of the disputed parcels had been valid, and against Spanish Fort, holding that its purported annexation of the disputed parcels was invalid because those parcels had already been annexed by Daphne. The trial court also held that Spanish Fort's purported annexation of the disputed properties, along with its purported *569 annexation of other property in Baldwin County that Daphne had not purported to annex, was invalid because the local act of the Legislature authorizing the referendum by which Spanish Fort had purported to annex that property was unconstitutional. We affirm in part and reverse in part. Daphne and Spanish Fort are adjacent municipalities situated on the eastern shore of Mobile Bay in Baldwin County. The genesis of the dispute between the two cities appears to have come in 1998. In March of that year, Spanish Fort caused to be published in a Baldwin County newspaper notice of that city's intent to seek a local act of the Legislature authorizing a referendum in which the voters of certain areas of Baldwin County would decide whether those areas would be annexed into Spanish Fort. That notice was published on March 7, 14, 21, and 25, 1998, and it included a detailed legal description of the property that Spanish Fort would seek to have the Legislature include in the area to be annexed into Spanish Fort upon the passage of a referendum of qualified electors living in the affected area. While considering the bill proposed by Spanish Fort, the Legislature amended it to remove approximately half of the property Spanish Fort had initially sought to have included in the area to be annexed. The property removed from the provisions of the bill by the amendment generally lay to the east and the north of the existing Spanish Fort city limits. The Legislature approved the bill as amended, and it became effective with the signature of Governor Fob James on May 6, 1998. Act. No. 98-634, Ala. Acts 1998 (Reg.Sess.). The act provided that the corporate limits of the City of Spanish Fort would be altered to include the property described in the act, provided that "the qualified electors who reside within the territory to be annexed [approved the annexation] in a referendum to be held" on a day selected by the Baldwin County probate judge. Id. (see § 4). The probate judge scheduled the referendum for July 28, 1998. In a series of meetings between July 6, 1998, and July 22, 1998, the Daphne City Council purported to annex into Daphne several parcels of property that had been included in the area subject to the referendum approved by the Legislature in Act. No. 98-634. Those parcels of property may be described as falling into two general groups, the "mall property" and the "causeway property." The mall property lies north and east of the intersection of Interstate 10 and U.S. Highway 98 in western Baldwin County. The causeway property is composed of several separate parcels of property lying, generally, along U.S. Highway 90 between the then existing western boundary of Spanish Fort and the Mobile-Baldwin County line. On July 28, the Spanish Fort annexation referendum was conducted, and the voters approved the annexation by a vote of 129-72. On August 5, 1998, Daphne filed an action in the Baldwin Circuit Court, seeking a judgment declaring Daphne's purported annexation of the disputed property to be valid and declaring Spanish Fort's purported annexation of the same property by the July 28 referendum to be invalid.[1] Spanish Fort answered and filed a counterclaim, seeking a judgment declaring that Daphne's purported annexation of the disputed property was invalid and declaring that the property had in fact been annexed into Spanish Fort by the July 28 referendum. Following a trial, the Baldwin Circuit Court entered a judgment in favor of Daphne and against Spanish Fort, as to all the disputed property. The trial court concluded that the disputed properties had *570 been validly annexed into Daphne before the July 28 referendum was conducted. Further, the trial court held that the July 28 referendum was void, because, the court held, Act No. 98-634 was unconstitutional (for reasons discussed below). Spanish Fort appealed. For clarity's sake, we divide our discussion into three general sections. In section A, we will discuss the effect of the July 28 referendum. In Section B, we will discuss Daphne's purported annexation of the mall property. In section C, we will discuss Daphne's purported annexation of the causeway property. By its adoption of Act No. 98-634, the Legislature expressly authorized the referendum that was later conducted on July 28. As this Court has held, "[t]he legislature's power, with regard to municipalities, is plenary, except as limited by the Alabama Constitution." Town of Vance v. City of Tuscaloosa, 661 So. 2d 739, 742 (Ala.1995). That plenary power includes the power to establish and adjust municipal boundaries. Opinion of the Justices, 277 Ala. 630, 173 So. 2d 793 (1965). When considering whether that power has been exercised in accordance with the Constitution, courts must apply the following well-settled standard: Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9, 18 So. 2d 810, 815 (1944). Daphne argues that the Legislature's adoption of Act No. 98-634 violated Art. IV, § 106, of the Alabama Constitution, as amended by Amendment No. 341, which prohibits the adoption of a "local act," such as Act No. 98-634,[2] "unless notice of the intention to apply therefor shall have been published." We conclude, for the reasons discussed below, that it is "clear beyond reasonable doubt" that the Act was adopted in violation of § 106. Spanish Fort argues that the question whether the § 106 requirements were met is conclusively resolved by information contained in the Journals of the House of Representatives and the Senate indicating that notice had been published. Even if we assume, arguendo, that the Journals do prove the publication of the notice, Act No. 98-634 is nonetheless invalid because of the way the Legislature amended the bill after the publication had been made, as we will explain. In a relatively recent case, this Court directly addressed the requirements of § 106 as they relate to local acts providing for referendums concerning annexationthe very situation presented in this case. In City of Tuscaloosa v. Kamp, 670 So. 2d 31 (Ala.1995), after reviewing previous cases concerning the requirements of § 106 in annexation cases, this Court wrote: Id. at 34-35. We have carefully considered the arguments of Spanish Fort encouraging us to revisit that holding in Kamp. However, we are not persuaded to do so. Therefore, because the Legislature amended the bill that would become Act No. 98-634 by eliminating a substantial portion of the territory that had been included in the published notice, and because the bill was one calling for a referendum, a fact invoking the rule of Kamp, we conclude that the Act was enacted in violation of § 106 of the Alabama Constitution.[3] The primary Code section governing our consideration of Daphne's attempts to annex the mall property is § 11-42-21, Ala. Code 1975. That section provides that property contiguous to a city's existing corporate limits may be annexed into that city if: (1) the owners of the affected property petition the city for annexation; (2) the governing body of the city adopts an ordinance assenting to the annexation; and (3) the property does not already lie within the corporate limits or police jurisdiction of another municipality. Ala.Code 1975, § 11-40-10, defines the limits of police jurisdictions associated with Alabama municipalities: If two cities are so situated that their police jurisdictions overlap, and one of them seeks to annex property lying within the overlapping police jurisdictions, § 11-42-21 provides that the city seeking to annex the property may annex it by the procedure of § 11-42-21, up "to a boundary which is equidistant from the respective corporate limits of each of such incorporated municipalities which have overlapping police jurisdictions." It is undisputed that the owners of the mall property petitioned Daphne for annexation, as required by § 11-42-21. However, it is also undisputed that the mall property lay within the overlapping police jurisdictions of Daphne and Spanish Fort. Therefore, we must consider whether Daphne's purported annexation of the mall property complied with the contiguity requirement and the equidistant-boundary limitation of § 11-42-21. The Daphne City Council purported to annex the mall property in phases through the adoption of a series of ordinances: Ordinance no. 1998-17 (phase one); no. 1998-18 (phase two); no. 1998-20 (phase three); no. 1998-23 (phase four); and no. 1998-26 (phase five). The council apparently followed this procedure in an effort *572 to comply with § 11-42-22[4] and City of Prichard v. City of Saraland, 536 So. 2d 1386 (Ala.1988). In that case, the City of Saraland had annexed property that was within its police jurisdiction but also was within the police jurisdiction of the City of Prichard. Saraland adopted an initial ordinance annexing property up to an equidistant boundary between the two cities' corporate limits, as permitted by § 11-42-21. When its corporate limits had thus been rearranged, Saraland annexed additional property lying between its new corporate limits and the new equidistant boundary. This Court approved that procedure as fully compliant with §§ 11-42-21 and -22. Spanish Fort argues that ordinance no. 1998-17, by which the Daphne City Council purported to annex the first phase of the mall property, was invalid because, it argues, that ordinance violated the equidistant-boundary limitation of § 11-42-21. We disagree. The trial court held that Daphne's annexation of the mall property, in each phase, met the legal requirements of the equidistant-boundary rule. Spanish Fort concedes that ordinance no. 1998-17 purported to annex property that was contiguous with Daphne's then-existing corporate limits. However, Spanish Fort argues that the annexation was invalid because the northwest corner of that property touched the corporate limits of Spanish Fort. That argument, however, is without merit. Before any of the annexations in dispute in this case were attempted, Daphne and Spanish Fort already shared a common boundary, running east-west. Beginning at the eastern terminating point of that common boundary, a line runs north-south separating unincorporated territory east of that line, including the mall property, from the territory of Spanish Fort, west of the north-south line and north of the two cities' common boundary, and the territory of Daphne, also west of the north-south line but south of the two cities' common boundary. In ordinance no. 1998-17, the Daphne City Council purported to annex territory east of the north-south line and south of a line beginning at the terminating point of the existing common east-west boundary line between the two cities and extending eastward. In other words, while Daphne's purported annexation did include property that touched the Spanish Fort corporate limits at the annexed property's northwest corner, the two cities already touched at that point. Through ordinance no. 1998-17, Daphne extended its corporate limits in such a way that none of the annexed property was any closer to the then existing corporate limits of Spanish Fort than the point at the northwest corner of the annexed property where the two cities already adjoined. The trial judge held that this annexation did not violate the equidistant-boundary rule, and we agree. Section 11-42-21 also provides that when a city adopts an ordinance of annexation, the city's corporate boundaries are not actually altered until "the date of the publication of said ordinance." Accordingly, the ordinance provided: "This Ordinance shall be published as required by Section 11-42-21, [Ala.Code 1975], and the property described herein shall be annexed to the corporate limits of the City of Daphne, Alabama, upon such publication." Thus, we conclude that ordinance no. 1998-17 was a valid annexation of the property described therein, and that it became effective on the date of publication of that ordinance, July 15, 1998. Following its adoption of ordinance no. 1998-17, but before the publication of *573 that ordinance (and thus before it became effective), the Daphne City Council adopted ordinance no. 1998-18, at a council meeting held on July 13, 1998. This second ordinance purported to annex property lying between the new Daphne corporate limits (those established by ordinance no. 1998-17) and the new equidistant boundary between those new corporate limits and the corporate limits of Spanish Fort. Spanish Fort argues that because ordinance no. 1998-17 had not yet become effective when the Daphne City Council adopted ordinance no. 1998-18, purporting to annex phase two of the mall property, the second ordinance was invalid as violating the equidistant-boundary limitation. In other words, Spanish Fort argues that because the first ordinance had not yet been published, the Daphne corporate limits had not yet been altered, and, therefore, the new equidistant boundary had not yet been established. For this reason, Spanish Fort argues that the Daphne City Council's adoption of the second ordinance (no. 1998-18) violated § 11-42-21. The trial judge disagreed with Spanish Fort's argument, and we do as well. Ordinance no. 1998-17 became effective upon its publication on July 15, 1998. Although the Daphne City Council adopted ordinance no. 1998-18 on July 13, two days before ordinance no. 1998-17 became effective, ordinance no. 1998-18 was not published until July 18. As we have stated previously, an ordinance does not become effective until its publication. Thus, on the date that ordinance no. 1998-18 became effective, ordinance no. 1998-17 had already come into effect. Therefore, on the effective date of ordinance no. 1998-18, the Daphne corporate limits had already been modified by ordinance no. 1998-17, and the annexation adopted by ordinance no. 1998-18 did not violate the equidistant-boundary limitation. In essence, we conclude that the analysis whether preconditions necessary to an ordinance are in existence must be conducted with regard to the circumstances as they exist on the date the ordinance becomes effective, not on the date the ordinance is adopted by the city council. See Pappas v. Alabama Power Co., 270 Ala. 472, 119 So. 2d 899, 908 (1960). Because ordinance no. 1998-18, annexing phase two, and the subsequent ordinances annexing phases three through five of the mall property did not become effective until after each previous ordinance had become effective, we conclude that the trial judge correctly held that these ordinances were all valid. Therefore, we affirm the judgment of the trial court as it relates to the mall property. The primary Code section governing our consideration of Daphne's attempts to annex the causeway property is, as with the mall property, § 11-42-21, Ala.Code 1975. The requirement of that Code section that affects our analysis of the purported annexation of the causeway property is the requirement of contiguity. Spanish Fort argues that the trial judge should have declared that annexation invalid because that property, Spanish Fort argues, was not contiguous with Daphne's then existing corporate limits. For the reasons discussed below, we agree with Spanish Fort. The causeway property does not consist of a unified block of territory, as the mall property does. Instead, the causeway property consists of a number of separate "pockets" of property, each completely surrounded by areas that Daphne did not attempt to annex. Daphne purported to annex those "pockets" of property through a series of ordinances designed to annex that property in phases: 1998-19 (phase one), 1998-21 (phase two), 1998-24 (phase three), 1998-25 (phase four), and 1998-27 (phase five). As a threshold matter, we note that this Court has held that under the contiguity requirement of § 11-42-21 there must be a "`touching' at some point." City of Dothan v. Dale County Comm'n, 295 Ala. 131, 134, 324 So. 2d 772, 775 (1975). Before *574 City of Dothan, our cases had required a "substantial common boundary." Id. There are some exceptions to the "actual-touching" rule of City of Dothan. A parcel of property is considered contiguous with a municipality's corporate limits, for the purposes of § 11-42-21, if it lies directly across a public roadway from the municipal limits: Johnson v. Rice, 551 So. 2d 940, 944-45 (Ala.1989) (quoting an order of the circuit court). While this Court affirmed the judgment in Johnson v. Rice, it did not specifically adopt the trial court's order quoted in that case. We consider that portion of the circuit court's order in Johnson quoted here to be a correct statement. This Court has also recognized that some annexations across public waterways may also meet the contiguity requirement of the statute, although we find only two Alabama cases discussing this issue: City of Madison v. City of Huntsville, 555 So. 2d 755 (Ala.1989), and Johnson v. Rice, supra. In those cases, both decided in 1989, this Court approved annexations by the City of Guntersville across Lake Guntersville and by the City of Decatur across Wheeler Lake. (City of Madison v. City of Huntsville involved not only the two cities named in the style, but also Limestone County and the cities of Decatur and Athens.) In Johnson, the Court analogized the analysis to be applied when considering annexations across a body of water to the analysis to be applied when considering annexations across a public roadway. We reaffirm that analogy. In addition, we note the analogous nature of our cases considering the "longlasso method" of annexation, which this Court has explicitly rejected. Under that method, a city would purport to annex a public roadway of some length in an effort to create contiguity with an outlying parcel of property that would not otherwise be contiguous with the existing municipal limits. City of Fultondale v. City of Birmingham, 507 So. 2d 489, 491 (Ala.1987). In City of Fultondale, this Court explicitly overruled City of Tuskegee v. Lacey, 486 So. 2d 393 (Ala.1985). In City of Tuskegee, the City of Tuskegee had annexed 14 miles of a public roadway, without annexing any property lying along that roadway, in order to create contiguity with an outlying parcel of property. Although this Court upheld that annexation in City of Tuskegee, this Court overruled that decision in City of Fultondale. In City of Fultondale, this Court explained its reasons for rejecting the long-lasso method of annexation: 507 So. 2d at 491. The same considerations inform our analysis of the legality of annexations across public waterways. In Johnson v. Rice, the City of Guntersville purported to annex territory directly across Lake Guntersville from the then existing city limits. This Court quoted at length the findings of fact, conclusions of law, and judgment of the trial court and "found no reason for reversing" the trial court's judgment. See 551 So. 2d at 946. The trial court concluded that the annexation met the contiguity requirement because of the presence of a number of specific factors: 551 So. 2d at 945 (second emphasis added). In City of Madison v. City of Huntsville, this Court also approved Decatur's annexation of property lying directly across Wheeler Lake from Decatur's then existing corporate limits. Just as in Johnson, the annexation also included the public roadway running across the lake joining the newly annexed property to the then existing city limits. Applying the principles established in the cited cases to the facts of this case, we conclude that Daphne's purported annexation of the causeway properties did not meet the § 11-42-21 requirement of contiguity, as that requirement has been explained by this Court. In its purported annexation of the causeway properties, Daphne did not attempt to annex the public roadways that might have allowed access from the then existing Daphne corporate limits to the properties to be annexed. The properties comprise several "pockets" of territory that are surrounded on all sides by property Daphne did not attempt to annex. To reach by automobile any of the causeway properties Daphne purported to annex, one would have to travel outside Daphne and through areas that Daphne did not attempt to annex. *576 The trial court found that all the causeway properties were contiguous to the city's existing city limits because they touch "by land or by water." However, as explained above, there is no existing route by which the properties may be reached by automobile from the original Daphne boundaries without traveling outside the city; thus, this case is different from Johnson and City of Madison, where the annexing cities annexed public roadways leading directly from the existing boundaries of those cities to the property sought to be annexed. Applying the principles of Johnson, City of Madison, and the other cases cited above, we conclude that Daphne's purported annexations of the causeway properties are similar to the long-lasso annexations explicitly disapproved of by this Court in City of Fultondale and that they are distinguishable from the annexations approved of by this Court in Johnson and City of Madison. Accordingly, we conclude that those annexations were invalid as violating the contiguity requirement of § 11-42-21, and we reverse that portion of the judgment of the trial court declaring those annexations to be valid. The judgment of the trial court is affirmed insofar as it holds valid Daphne's annexation of the mall property; insofar as it declares Act No. 98-634 unconstitutional; and insofar as it holds invalid the purported annexation by Spanish Fort. That judgment is reversed insofar as it relates to the causeway properties, with the exception of that portion of the causeway properties the annexation of which the trial court declared invalid as violating the equidistant-boundary limitation of § 11-42-21;[5] that portion is not involved in this appeal. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HOOPER, C.J., and HOUSTON, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] Merritt Oil Company, Inc., was also named as a plaintiff in the action filed by Daphne. Merritt Oil owned part of the causeway property purportedly annexed by Daphne. D.V. Williams, who owned and resided on one of the tracts of the causeway property, was later added as a plaintiff. [2] Section 104 prohibits the Legislature from adopting local acts concerning certain subject matters. However, subsection 18 of that section explicitly permits the Legislature to adopt local acts that "alter[] or rearrang[e] the boundaries of [a] city, town, or village." See Town of Vance v. City of Tuscaloosa, 661 So. 2d at 742. [3] Because we conclude that the enactment of Act No. 98-634 violated the Alabama Constitution, we need not reach Daphne's argument that its enactment also violated the Fourteenth Amendment to the United States Constitution. [4] Ala.Code 1975, § 11-42-22, provides: "Any incorporated municipality having extended its corporate limits under the provisions of this article or any other law may again extend its corporate limits under this article or under any other law authorizing an extension of the corporate limits by such incorporated municipality." [5] This was a small portion of the property Daphne sought to annex by ordinance no. 1998-19.

June 16, 2000

2b7b3664-5ed7-4e69-90a4-3a521f7e5be1

Ex Parte Loggins

771 So. 2d 1093

1981574

Alabama

Alabama Supreme Court

771 So. 2d 1093 (2000) Ex parte Kenneth LOGGINS. Re Kenneth Loggins v. State. 1981574. Supreme Court of Alabama. June 2, 2000. *1096 L. Dan Turberville, Hoover, for petitioner. Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for respondent. ENGLAND, Justice. Kenneth Loggins was charged with two counts of capital murder. Count I of the indictment charged Loggins with the murder of Vicki Deblieux, a murder made capital because it occurred during a kidnapping in the first degree or an attempt thereof, Ala.Code 1975, § 13A-5-40(a)(1). Count II charged Loggins with the murder of Vicki Deblieux, made capital because it was committed during a robbery in the first degree or an attempt thereof, Ala. Code 1975, § 13A-5-40(a)(2). As to Count I, the jury found Loggins guilty of the capital murder charged; as to Count II, it found him guilty of intentional murder, a lesser-included offense as to the capital murder charged. The trial court entered a judgment of conviction on each verdict. With regard to Loggins's conviction for capital murder, the jury recommended the death penalty, by a vote of 10 to 2. The trial court accepted the jury's recommendation and sentenced Loggins to death by electrocution. The trial court sentenced Loggins to life in prison for his conviction of intentional murder. On April 30, 1999, the Court of Criminal Appeals affirmed Loggins's conviction for capital murder and his sentence of death. Loggins v. State, 771 So. 2d 1070 (Ala.Crim. App.1999). The Court of Criminal Appeals also vacated Loggins's conviction for intentional murder, as a lesser offense included in the capital murder charged in Count II, on double-jeopardy grounds. Thereafter, the Court of Criminal Appeals denied Loggins's application for rehearing, without opinion. This Court granted Loggins's petition for certiorari review, to review the opinion of the Court of Criminal Appeals and to search the record for plain error, pursuant to Rule 39(k), Ala. R.App. P. Loggins raised 10 issues in his petition; each of them was adequately addressed and properly decided by the Court of Criminal Appeals. However, we will address three of those issueswhether the prosecutor impermissibly commented on Loggins's failure to testify at trial; whether the trial court erred in admitting into evidence approximately 50 autopsy photographs of the victim; and whether, in light of the trial court's findings as to aggravating and mitigating circumstances, that court erred in sentencing Loggins to death. For the reasons we will discuss in detail in Parts I through III of this opinion, we affirm the judgment of the Court of Criminal Appeals. The facts relating to this case are set out in considerable detail in the opinion of the Court of Criminal Appeals, 771 So. 2d 1070. We will not restate them in detail here. However, we will outline the facts essential to a consideration of the three issues we address. Most of the facts relevant to these issues are set out in the trial court's sentencing order, which reads, in pertinent part: (Supplemental Record, C. 12-13.) See Loggins v. State, 771 So. 2d at 1074-75. Several of Loggins's friends and acquaintances testified during the State's case-in-chief that Loggins had bragged and even joked with them about killing a hitchhiker. Sonja Gray met Loggins while she was working at a Hardee's restaurant, and Gray was a friend of Amy White, who was Loggins's girlfriend. Gray also knew Duncan, Grayson, and Mangione, Loggins's codefendants. Gray testified about a morning in late February 1994, when she and Amy White went looking for Loggins. Gray testified that, as she and White were driving past the Hardee's restaurant at Chalkville, where she and Dale Grayson worked, they noticed Loggins's white pickup truck in the parking lot. The two girls stopped and looked inside the truck and saw Loggins, Grayson, and Duncan asleep. Gray testified that the three men were covered with mud and blood. When Gray asked the men about their appearance, one of them told her that they had killed a dog that was chasing the truck. The subject of how the men came to be covered in mud and blood came up again in late March 1994, in Duncan's apartment. Gray and another girl, Danielle Boso, were listening to music with Duncan, Loggins, and Mangione, when Gray asked whether they had killed a dog or a hitchhiker. Mangione told her they had killed a hitchhiker. Mangione asked Gray who told her about the hitchhiker: Boso said that Amy White had told them. Loggins then told the girls that "Amy was dead, and if [they] breathed a word of it, [they] would be next." Loggins told the girls that they had picked up a hitchhiker, and that he had put his foot on her throat and said "hurry up and die."[1] Loggins told the girls that the hitchhiker "choked up blood" *1098 and that the men cut off the victim's fingers to prevent her from being identified. Then the men took her body to Bald Mountain and threw the body over a cliff. Danielle Boso's testimony was essentially the same as the testimony given by Gray. Boso testified that she was with Gray in Duncan's apartment. She testified that Loggins was the person who related the story about the hitchhiker. Boso testified that Loggins said he and the others picked the victim up on the Trussville exit on I-59 and that they took her to Loggins's truck and then took her into the woods, where they killed her, and then threw her body over a cliff. Boso testified that Loggins said the men returned to Bald Mountain that night and that they "cut off her fingers, took out her teeth, took out her brain, her eye, and took out her heart and took a bite if it." (R. 473.) (The results of this mutilation are depicted in many of the crime-scene and autopsy photographs that Loggins would have preferred the jury not see.) Boso testified that one of the men said that they performed the postmortem mutilations to hinder identification of the victim. Hope Hanson knew Loggins and the other codefendants because, she said, they "hung around" with Duncan, who was her brother's friend. Hanson testified that in late February 1994, she overheard Loggins and Grayson talking about "fingers behind Bruno's" (an apparent reference to a supermarket). Hanson testified that either Grayson or Loggins was talking about "fingers being thrown" and that one of the men joked about throwing someone's fingers in the front yard of her apartment complex. Finally, Hanson testified that she occasionally heard Loggins and the other men joke about picking up a hitchhiker. Before trial, Loggins entered a plea of not guilty by reason of mental disease or defect. Dr. Samuel E. Fleming III, Ph.D., a clinical psychologist, testified for the defense during the guilt phase of the trial. He testified that he gave Loggins two Minnesota Multiphasic Personality Inventory ("MMPI") tests during his evaluation. Fleming testified that Loggins scored high on the scale used to indicate the presence of schizophrenia and antisocial behavior. Fleming did not "think there was any question" that when he killed Ms. Deblieux Loggins was suffering from a severe mental illness that caused him to be unable to appreciate the wrongfulness of his acts. Fleming testified that "there was a possibility" that Loggins was insane at that time and that there was "no question" that Loggins suffered from a diminished capacity. The State offered the testimony of Dr. C.J. Rosecrans, a clinical psychologist, in rebuttal to the testimony of Dr. Fleming. Dr. Rosecrans testified that he interviewed Loggins on two occasions and that he gave Loggins an MMPI test, as well as a Rorschach inkblot test. Dr. Rosecrans testified that he also obtained information about Loggins from other sources, including investigative reports and Dr. Fleming's report. In Dr. Rosecrans's opinion, Loggins was not suffering from a severe mental disease or defect when he killed Ms. Deblieux. Furthermore, in Dr. Rosecrans's opinion, at the time of the killing Loggins was able to distinguish right from wrong and to appreciate the wrongfulness of his conduct. Finally, Dr. Rosecrans testified that, while the effect of drugs and alcohol may have reduced Loggins's inhibitions, it would not have prevented him from distinguishing between right and wrong. The defense also called several of Loggins's former school counselors and teachers to testify about Loggins's emotional problems in general. They described "rages" they said Loggins went into on a nearly daily basis and stated that when these rages occurred Loggins was not aware of what he was doing. The prosecutor made the following comment during his rebuttal closing argument *1099 in the penalty phase of Loggins's trial: "And throughout every word you've heard from this witness stand in this courtroom this entire week has there been an iota of remorse? None. Absolutely none." Loggins argues that the prosecutor's comment constitutes a direct comment on his failure to testify at trial. Therefore, he argues that his conviction and sentence must be reversed and his case remanded for a new trial. For the reasons stated below, we disagree. The relevant portions of the prosecutor's rebuttal closing argument during the penalty phase of Loggins's trial were as follows: (R. 1061-65.)(Emphasis added.) Initially, we note that Loggins did not object to the prosecutor's comment he now complains of and, thus, did not preserve this issue for review. However, because the death penalty has been imposed in this case, we are obliged, pursuant to Rule 39(k), Ala. R.App. P., to search the record for "plain error." Plain error is error that "has or probably has adversely affected the substantial rights of the [defendant]." Rule 39(k), Ala. R.App. P.; see Ex parte Myers, 699 So. 2d 1285, 1290 (Ala. 1997), cert. denied, 522 U.S. 1054, 118 S. Ct. 706, 139 L. Ed. 2d 648 (1998). Error is plain if "`the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.'" Haney v. State, 603 So.2d *1100 368, 392 (Ala.Crim.App.1991), aff'd, 603 So. 2d 412 (Ala.1992), cert. denied, 507 U.S. 925, 113 S. Ct. 1297, 122 L. Ed. 2d 687 (1993) (citation omitted). "`However, the failure to object should be weighed as part of our evaluation of the comments, because the failure to object may suggest that the defense did not consider the comments to be particularly harmful. Ex parte Kennedy, 472 So. 2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S. Ct. 340, 88 L. Ed. 2d 325 (1985).' Ex parte Payne, 683 So. 2d 458, 465 (Ala.1996)[, cert. denied, 520 U.S. 1146, 117 S. Ct. 1319, 137 L. Ed. 2d 481 (1997) ]." Ex parte Clark, 728 So. 2d 1126, 1129 (Ala. 1998). See also Ex parte Land, 678 So. 2d 224, 233 n. 2 (Ala.), cert. denied, 519 U.S. 933, 117 S. Ct. 308, 136 L. Ed. 2d 224 (1996). In Alabama, the right to be free from compulsory self-incrimination is protected both by the constitution and by statute. "[I]n all criminal prosecutions, the accused ... shall not be compelled to give evidence against himself...." Alabama Constitution 1901, Art. I, § 6. Ex parte Brooks, 695 So. 2d 184 (Ala.), cert. denied, 522 U.S. 893, 118 S. Ct. 233, 139 L. Ed. 2d 164 (1997). Section 12-21-220, Ala.Code 1975, reads: Id. (Emphasis added.) Ex parte Purser, 607 So. 2d 301, 304 (Ala. 1992). In Clark, supra, this Court wrote: 728 So. 2d at 1130 (quoting Brooks, supra, 695 So.2d at 188). It is well settled that, in determining whether a prosecutor's comment is tantamount to an impermissible reference to the accused's failure to testify, the comment must be considered in the context in which it was made: Maples v. State, 758 So. 2d 1, at 21 (Ala. Crim.App.), aff'd, 758 So. 2d 81 (Ala.1999). Not every comment that refers or alludes to a nontestifying defendant is an impermissible comment on his failure to testify; the prosecutor has a right to comment on reasonable inferences from the evidence: Lloyd v. State, 629 So. 2d 662, 663-64 (Ala. Crim.App.1993) (alteration in Lloyd). Moreover, remorse is also a proper subject *1102 of closing arguments. Dobyne v. State, 672 So. 2d 1319, 1348-49 (Ala.Cr.App.), on return to remand, 672 So. 2d 1353 (Ala.Cr. App.1994), aff'd, 672 So. 2d 1354 (Ala.1995), cert. denied, 517 U.S. 1169, 116 S. Ct. 1571, 134 L. Ed. 2d 670 (1996). During the guilt phase of Loggins's trial, defense counsel presented evidence indicating that Loggins went into fits, which his former teachers described as "rages," almost daily. Loggins's defense attorneys referred to these fits in their closing arguments in both the guilt phase and the penalty phase of Loggins's trial. Loggins's teachers and his psychologist testified that when Loggins experienced one of these fits, he was unaware of what he was doing and was unable to control his conduct.[2] Loggins's attorneys closed both phases of the trial by arguing that Loggins was emotionally troubled and unable to control himself under "normal" circumstances, and that Loggins's mental state at the time of the offense was impaired even more than usual because of the drugs and alcohol that he consumed prior to, and during, the time that he and his companions picked up Ms. Deblieux. Considered in the context in which it was made, we conclude that the prosecutor merely stated an inference the prosecutor had reasonably drawn from the evidence: that Loggins not only knew what he was doing at the time of the offense, but helped to plan the crime and remembered the details of the murder long after it had taken place. Ex parte Davis, 718 So. 2d 1166, 1173 (Ala.1998), cert. denied, 525 U.S. 1179, 119 S. Ct. 1117, 143 L. Ed. 2d 112 (1999). The prosecutor's remark was a proper comment on the evidence. Throughout the trial, Loggins's friends, girlfriends, or acquaintances testified for the State about how Loggins had joked, and had even bragged to them about the killing of the hitchhiker. Thus, the phrase "And throughout every word you've heard from this witness stand in this courtroom this entire week" refers to the people Loggins told about the murder, and who testified at trial, and to those with whom Loggins joked about the killing for weeks after the crime had taken place. The prosecutor's comment was a statement of a proper inference, drawn from this trial testimony, that Loggins had shown no remorse for the killing. Harris v. State, 632 So. 2d 503, 536 (Ala.Crim.App.1992), aff'd, 632 So. 2d 543 (Ala.1993), aff'd, 513 U.S. 504, 115 S. Ct. 1031, 130 L. Ed. 2d 1004 (1995) (wherein this Court held that a reference, during the sentencing stage of the trial, to the defendant's lack of remorse was not improper argument, where testimony introduced at trial had indicated that the defendant's reaction to being informed of her husband's death was so unemotional that she was questioned concerning her reaction); Dobyne, supra, 672 So. 2d at 1348-49 (wherein this Court held that a prosecutor's comment regarding the defendant's lack of remorse, made during the penalty phase of the trial, was a comment "on the [defendant's] demeanor when he made his statement to police"). In any event, the prosecutor's comment was not "of such character that a jury would naturally and necessarily construe it as a comment on [Loggins's] silence.' Davis, supra, 718 So.2d at 1173[, cert. denied, 525 U.S. 1179, 119 S. Ct. 1117, 143 L. Ed. 2d 112 (1999) ]." Maples, supra, 758 So. 2d at 21. Therefore, the prosecutor's comment was not error, plain or otherwise. Id.; Dobyne. Loggins contends that the trial court improperly denied his motion in limine by which he sought to prevent the State from presenting photographic evidence concerning the mutilation of the victim's body. The trial court allowed the State to introduce *1103 into evidence approximately 50 photographs of the victim's body; most of them, Loggins says, depict mutilation of the body that was done after the victim had been killed. Loggins contends that these photographs do not prove or disprove any issue that is being litigated, but were offered solely to inflame the passions of the jury. The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion: Jennings v. State, 513 So. 2d 91, 95-96 (Ala.Crim.App.1987). Moreover, the trial court may properly admit photographs of the victim's wounds into evidence, even if the photographs are cumulative or the wounds gruesome: Woodall v. State, 730 So. 2d 627, 649 (Ala. Crim.App.1997), rev'd on other grounds, Ex parte Woodall, 730 So. 2d 652 (Ala.1998)(emphasis added). The mere fact that the photographs showing the nature and location of the victim's wounds were gruesome and cumulative did not require the trial court to exclude the photographs from evidence: Wilson v. State, [Ms. CR-97-2569, November 19, 1999] ___ So.2d ___ at ___ (Ala. Crim.App.1999). Each of the photographs offered into evidence by the prosecution is gruesome. Some photographs show parts of the victim's body as they were found at the crime scene; other photographs show the left side of the victim's face, with her features essentially erased by blunt-force trauma. Brain tissue is visible in this photograph, as is the victim's collapsed left eye. Other photographs depict the stumps *1105 of the victim's hands, with the fingers and thumbs amputated. Still other photographs depict the stab wounds to the victim's body, missing teeth, and fragments of the skull. A few photographs depict portions of the victim's remains that were recovered away from her body itself. Each of the photographs, however, offers some information about the fear, pain, and degradation the victim suffered, the hopelessness she must have felt before she died, and the slow and painful manner of her death. Finally, still other photographs depict the victim's amputated fingers and thumbsfingers and thumbs amputated to prevent her identification and to be kept as souvenirs. One of the victim's finger's ultimately played a role in identifying her murderers. Each of these photographs was necessary to help communicate important and relevant facts to Loggins's jury. This Court must not lose sight of the fact that this issue is presently before us only because of Loggins's horrific conduct. Because the victim's body was so savagely mutilated, before investigators employed by State law-enforcement agencies and other law-enforcement agencies could photograph it, the only photographs available to the prosecution for use at Loggins's trial were hideous, at best.[3] The trial court did not err in denying Loggins's motion in limine, and the Court of Criminal Appeals did not err in affirming the trial court's denial of that motion in limine. Loggins contends that the death penalty was wrongly imposed and that his conviction and sentence are therefore due to be reversed. Loggins's claim relates to the trial court's findings regarding aggravating circumstances and mitigating circumstances. Specifically, Loggins argues that "the trial court abused its discretion" in two ways: (A) By failing to find the existence of two statutory mitigating circumstances (1) that the offense was committed while Loggins was under the influence of extreme emotional distress or disturbance and (2) that at the time of the offense Loggins's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was "substantially impaired"; and (B) by finding the existence of a statutory aggravating circumstance, specifically, that the capital offense was especially heinous, atrocious, or cruel compared to other capital offenses. For the purposes of clarity, the claims raised in Loggins's brief as Issues (9) and (10) are discussed below as A and B, respectively. Loggins argues that the trial court erred in refusing to find that the capital offense was committed while Loggins was under the influence of extreme mental or emotional disturbance. The trial court's sentencing order, as it pertains to this statutory mitigating circumstance, reads: (Supp. C. 16-17.) Loggins also asserts that the trial court erred in failing to find that, at the time of the capital offense, Loggins's capacity to appreciate the criminality of his acts or to conform his conduct to the requirements of law was substantially impaired. The trial court's sentencing order, as it pertains to this statutory mitigating circumstance, reads: Id. at 17. Having heard the testimony of Dr. Fleming and Loggins's former teachers and counselors on the one hand, and the testimony of Dr. Rosecrans and Loggins's acquaintances on the other hand, the trial judge believed the testimony of Rosecrans and Loggins's acquaintances. "The credibility of witnesses is for the trier of fact, whose finding is conclusive on appeal. [Alabama appellate courts] cannot pass judgment on the truthfulness or falsity of testimony or on the credibility of witnesses. Collins v. State, 412 So. 2d 845, 846 (Ala.Cr.App.1982)." Hope v. State, 521 So. 2d 1383, 1387 (Ala.Crim.App.1988). The evidence supports the trial court's findings. Much of the testimony presented by Loggins related to the rages that he supposedly suffered and their effect on his behavior. However, this evidence was rebutted by other evidence that supported a conclusion that Loggins knew precisely what he was doing when he killed the victim; i.e., that other evidence indicated Loggins thought to clean himself up and to create an alibi the morning after the crime; that Loggins helped to plan the kidnapping of a hitchhiker and that he and the codefendants killed Ms. Deblieux because she resisted the sexual advances of one of the men; and that Loggins remembered small details of the murder for weeks and even months after it took place. Loggins argues that the trial court's conclusion that he was aware of what he was doing when he murdered the victim necessarily meant that the trial court ignored Dr. Fleming's testimony. We do not agree. Initially, we note that Alabama law allows the finder of fact to reject the testimony of an expert witness: Finally, Loggins argues that the trial court erred in finding, as an aggravating circumstance, that the murder of Ms. Deblieux was "heinous, atrocious or cruel." Specifically, Loggins argues that the trial court based this finding on the postmortem mutilation of the victim's body. Therefore, Loggins argues, the trial court violated the rule in Godfrey v. Georgia, 446 U.S. 420, 433, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980) (wherein the United States Supreme Court held that an aggravating circumstance in Georgia's capital-punishment statute that an offense be "outrageously or wantonly vile, horrible or inhuman in that it involves torture, depravity of mind, or an aggravated battery to the victim" required evidence of serious physical abuse of the victim before death), and Ex parte Kyzer, 399 So. 2d 330, 334 (Ala.1981) (in which this Court held that the "heinous, atrocious, or cruel" aggravating circumstance "was intended to apply to only those conscienceless or pitiless homicides which are unnecessarily torturous to the victim."). However, because the trial court clearly based the existence of this aggravating circumstance on actions occurring before the victim died, we must reject Loggins's argument. The trial court's sentencing order provided, in pertinent part: (Supp. C. 16.) It is clear, from the plain language in the sentencing order, that the trial court's finding that this offense was "especially heinous, atrocious or cruel" when compared to other capital crimes was based only upon the injuries inflicted on the victim's body before her death. Furthermore, the trial court's oral charge to the jury during the penalty phase read, in pertinent part, as follows: (R. 1014-15.)(Emphasis added.) Thus, the trial court properly instructed Loggins's jury not to consider the postmortem mutilation of Ms. Deblieux's body in determining whether the criteria for the "heinous, *1108 atrocious or cruel" aggravating circumstance had been met. "It is presumed that trial courts follow their own instructions. Harris v. Rivera, 454 U.S. 339, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981)." Ex parte Thomas, 460 So. 2d 216, 224 (Ala.1984). See also Ex parte Trawick, 698 So. 2d 162, 176 (Ala.1997), cert. denied, 522 U.S. 1000, 118 S. Ct. 568, 139 L. Ed. 2d 408 (1997); Ex parte Harrell, 470 So. 2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S. Ct. 269, 88 L. Ed. 2d 276 (1985). Loggins's argument is without merit. We have carefully reviewed the record of this case, and we have found no error, plain or otherwise. We find no evidence indicating that the sentence of death was imposed as a result of passion, prejudice, or any other arbitrary factor. The trial court instructed the jury not to be influenced by such factors, and juries are presumed to have followed the trial court's instructions. United States v. Tipton, 90 F.3d 861 (4th Cir.1996), cert. denied, 520 U.S. 1253 (1997); Taylor v. State, 666 So. 2d 36 (Ala.Crim.App.1994), aff'd, 666 So. 2d 73 (Ala.1995), cert. denied, 516 U.S. 1120, 116 S. Ct. 928, 133 L. Ed. 2d 856 (1996). This Court has independently weighed the aggravating circumstances and the mitigating circumstances, in accordance with Ala.Code 1975, § 13A-5-53(b), and we conclude that death is the proper sentence. The trial court found the existence of two aggravating circumstances: (1) The capital offense was committed while Loggins or a codefendant was committing a kidnapping; and (2) the capital offense was especially heinous, atrocious, or cruel when compared with other capital offenses. The trial court also found the existence of two statutory mitigating circumstances: (1) Loggins had no significant history of prior criminal activity; and (2) Loggins was 17 years old when he committed the offense. A weighing of these factors indicates that death is the appropriate sentence. As Ala.Code 1975, § 13A-5-53(b)(3), provides, we must also address the question whether Loggins's sentence was disproportionate or excessive when compared to sentences imposed in similar cases. Loggins's sentence was neither. See Heath v. State, 455 So. 2d 898 (Ala.Crim. App.1983), aff'd, 455 So. 2d 905 (Ala.1984), aff'd, 474 U.S. 82, 106 S. Ct. 433, 88 L. Ed. 2d 387 (1985); Boyd v. State, 542 So. 2d 1247 (Ala.Crim.App.1988), aff'd, 542 So. 2d 1276 (Ala.), cert. denied, 493 U.S. 883, 110 S. Ct. 219, 107 L. Ed. 2d 172 (1989); Callahan v. State, 557 So. 2d 1292 (Ala. Crim.App.1989), aff'd, 557 So. 2d 1311 (Ala.), cert. denied, 498 U.S. 881, 111 S. Ct. 216, 112 L. Ed. 2d 176 (1990); Land v. State, 678 So. 2d 201 (Ala.Crim.App.1995), aff'd, 678 So. 2d 224, 233 (Ala.1996), cert. denied, 519 U.S. 933, 117 S. Ct. 308, 136 L. Ed. 2d 224 (1996); Payne v. State, 683 So. 2d 440 (Ala.Crim.App.1995), aff'd, 683 So. 2d 458 (Ala.1996), cert. denied, 520 U.S. 1146, 117 S. Ct. 1319 (1997); Boyd v. State, 715 So. 2d 825 (Ala.Crim.App.1997), aff'd, 715 So. 2d 852 (Ala.1998), cert. denied, 525 U.S. 968, 119 S. Ct. 416, 142 L. Ed. 2d 338 (1998). The judgment of the Court of Criminal Appeals is affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, and JOHNSTONE, JJ., concur. [1] On cross-examination, Sonja Gray testified that it was Duncan, her boyfriend, and not Loggins, who had told her about killing the hitchhiker. [2] Defense counsel did not present evidence during the penalty phase of Loggins's trial. Instead, during their closing arguments in the penalty phase, Loggins's attorneys relied upon the evidence they had presented in the defense's case in the guilt phase. [3] We do not necessarily agree with the following two statements in the opinion of the Court of Criminal Appeals: "`"`[P]hotographic evidence, if relevant, is admissible even it has tendency to inflame the minds of the jurors.'"'" 771 So. 2d at 1086. "As we have previously stated, `"`[p]erpetrators of crimes that result in gruesome scenes have reason to expect that photographs of those gruesome scenes will be taken and admitted into evidence.'"'" 771 So. 2d at 1087. As this Court indicated in Ex parte Samra, 771 So. 2d 1122 at 1122 n. 1 (Ala.2000), "The purpose of appellate review of a criminal case is to determine whether the defendant received a fair trial. [These statements appear] to assume the very proposition challenged by a defendant on appealthe validity of his or her conviction."

June 2, 2000

ac8d0e97-18a5-4e4c-84d8-51dc45f5dcdf

Mitchell Nissan, Inc. v. Foster

775 So. 2d 138

1982183

Alabama

Alabama Supreme Court

775 So. 2d 138 (2000) MITCHELL NISSAN, INC v. Sterling FOSTER, Jr. 1982183. Supreme Court of Alabama. June 23, 2000. Joe C. Cassady of Cassady, Fuller & Marsh, L.L.P., Enterprise, for appellant. J. Matthew Folmar of Folmar & Folmar, P.C., Troy, for appellee. *139 SEE, Justice. Sterling Foster, Jr., sued Mitchell Nissan, Inc., alleging fraudulent suppression, negligent or wanton suppression, reckless misrepresentation, and breach of warranty. Mitchell Nissan moved to compel arbitration of Foster's claims. The trial court denied the motion. Mitchell Nissan appealed the order denying arbitration. We reverse and remand. In January 1996, Foster purchased an automobile from Mitchell Nissan. The automobile had a faulty transmission that could not be repaired, and Foster contacted Mitchell Nissan about the problem. Mitchell Nissan stated that it would find another automobile for Foster, and in May it sold Foster a second automobile. The purchase agreement for the second automobile contained a one-year warranty and an arbitration provision. The arbitration provision reads: In December 1996, Foster's second automobile stopped working. Foster asked Mitchell Nissan to repair the vehicle pursuant to the warranty provision of the contract. Mitchell Nissan told Foster that even with the benefit of the warranty, he would need to pay for one half of the repairs. In January 1998, Foster sued Mitchell Nissan, alleging fraudulent suppression, negligent or wanton suppression, reckless misrepresentation, and breach of warranty.[1] Mitchell Nissan moved to compel arbitration of Foster's claims. Foster opposed the motion, arguing that he has only a sixth-grade reading level and, therefore, should not be obligated by the arbitration *140 provision. After conducting a hearing on the motion, the trial court denied it, holding that Foster's limited reading ability rendered his assent to the contract (including the arbitration provision) ineffective. Mitchell Nissan filed a motion to alter, amend, or vacate the order denying arbitration. The trial court vacated the order. After holding another evidentiary hearing, the court again denied Mitchell Nissan's motion to compel arbitration. Mitchell Nissan appealed from the order denying arbitration. Section 2 of the Federal Arbitration Act ("FAA") provides that "[a] written provision in any ... contract evidencing a transaction involving [interstate] commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable." 9 U.S.C. § 2. The Supreme Court of the United States has stated that the FAA establishes a strong federal policy favoring arbitration. See Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983) (the FAA "establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration"). Accordingly, trial courts are required to stay or dismiss proceedings and to compel arbitration when the parties have entered into a valid contract containing an arbitration agreement, and a trial court's denial of a motion to compel arbitration is subject to appeal. See, e.g., Patrick Home Center, Inc. v. Karr, 730 So. 2d 1171, 1172 (Ala.1999). This Court will review de novo a trial court's order denying a motion to compel arbitration. Id. Foster concedes that he signed the purchase agreement that contains the arbitration provision. Foster does not claim that his purchase of the automobile did not involve interstate commerce. See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995) (holding that all arbitration provisions dealing with transactions involving interstate commerce are subject to the FAA). Foster also does not dispute that the arbitration provision is broad enough to cover his claims against Mitchell Nissan. Instead, Foster argues that he should be relieved of this contractual obligation because he has only a sixth-grade reading level. However, this rule has long been established in Alabama: Beck & Pauli Lithographing Co. v. Houppert, 104 Ala. 503, 506, 16 So. 522, 522 (1894) (emphasis added). Accord Gaskin v. Stumm Handel GmbH, 390 F. Supp. 361, 366 (S.D.N.Y.1975) ("`If the signer could read the instrument, not to have read it was gross negligence; if he could not read it, not to procure it to be read was equally negligent; in either case the writing binds him.'"). Foster was aware that he was signing a contract to purchase the automobile, and he does not allege that his signature was procured by fraud, deceit, or misrepresentation. Although Foster was aware of his limited reading ability, he did not ask his relatives who had accompanied him, or a representative of Mitchell Nissan, to read the agreement to him. Moreover, Foster did not tell a representative of Mitchell Nissan that he was unable to read or to understand any portion of the contract. Accordingly, Foster cannot avoid his contractual obligation by now asserting that he could not read the contract or understand it. See id. Foster also argues that the arbitration provision in his contract is unconscionable, and, therefore, void. "A court should refuse to enforce an arbitration *141 agreement where the record supports a determination of unconscionability." Ex parte Napier, 723 So. 2d 49, 52 (Ala.1998). The burden of proving unconscionability of an arbitration agreement rests with the party challenging the agreement. See id. Foster asserts, without explanation, that the arbitration provision is unreasonably favorable to Mitchell Nissan, and that his limited reading ability prevented him from having a meaningful choice. However, "agreements to arbitrate are not in themselves unconscionable," Ex parte McNaughton, 728 So. 2d 592, 598 (Ala. 1998), and the fact that a buyer was unaware of an arbitration provision in a contract is not evidence that the buyer could not have obtained the desired product or service, either from this seller or from some other seller, without consenting to the arbitration provision. See Green Tree Fin. Corp. of Alabama v. Vintson, 753 So. 2d 497, 504 (Ala.1999). Accordingly, Foster "failed to establish that [he] did not have any meaningful options." Id. The circuit court improperly denied Mitchell Nissan's motion to compel arbitration. We reverse the order denying that motion and remand the cause for an order or proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, LYONS, and BROWN, JJ., concur. ENGLAND, J., dissents. ENGLAND, Justice (dissenting). I respectfully dissent. The majority's holding is inconsistent with this Court's decision in Southern Energy Homes, Inc. v. Lee, 732 So. 2d 994 (Ala.1999), which was overruled by this Court in Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131 (Ala.2000). In Southern Energy Homes, Inc. v. Lee, we held that the Magnuson-Moss Act makes arbitration clauses contained in warranty agreements unenforceable against consumers. Because this case involves a breach-of-warranty claim, inasmuch as Foster claims that Mitchell Nissan failed to make repairs in accordance with the warranty, I would hold that the Magnuson-Moss Act makes the arbitration agreement unenforceable. My reasons for dissenting are stated in Justice Johnstone's dissent in Southern Energy Homes, Inc. v. Ard, supra, a dissent I joined. [1] Foster also made similar claims against Nissan Motor Acceptance Corporation, the company that had financed Foster's purchase of the automobile. However, those claims are not before this Court.

June 23, 2000

3f5a01f0-37bc-4919-af77-7ea43ed5877d

Ex Parte Hambrick

774 So. 2d 535

1982271

Alabama

Alabama Supreme Court

774 So. 2d 535 (2000) Ex parte Shelby Tyrone HAMBRICK.[1] (Re Shelby Tyrone Hambrick Green v. State). 1982271. Supreme Court of Alabama. May 26, 2000. Patrick M. Tuten, Huntsville, for petitioner. Bill Pryor, atty. gen., and Andy S. Poole, asst. atty. gen., for respondent. MADDOX, Justice. The Court of Criminal Appeals, on August 20, 1999, affirmed the defendant Shelby Tyrone Hambrick Green's conviction, with an unpublished memorandum. Green v. State, (No. CR-98-1190), ___ So.2d ___ (Ala.1999)(table). We granted certiorari review to address this issue raised by the defendant: The defendant argues that the provisions of § 15-15-22, Ala.Code 1975, still apply and that they require a reversal of his conviction because, he argues, the trial court lacked jurisdiction to accept his guilty plea, in that the trial court did not strictly comply with the three-day waiting requirement set out in § 15-15-22. We reject this argument. The people of Alabama, in approving Amendment 598 of the Constitution, and the Legislature, by adopting, in 1996, Act No. 96-531, Ala. Acts 1996, which is codified as § 15-15-20.1, Ala.Code 1975,[2] intended to repeal the three-day waiting requirement set forth in § 15-15-22, Ala.Code 1975,[3] and also, by adopting § 15-15-20.1(h), intended to supersede the provisions of Rule 2.2(e), Ala. R.Crim. P. Cf. Ex parte Stewart, 730 So. 2d 1246, 1250 (Ala.1999)(holding that the Legislature implicitly repealed the provisions of Rule 19.3, Ala. R.Crim. P., relating to jury sequestration). In affirming the Court of Criminal Appeals' judgment in Stewart, this Court held that the Legislature intended to change the effect of Rule 19.3 insofar as it conflicted with § 12-16-9, as amended, and we conclude that the principles of law set out in Stewart are applicable to our resolution of the issue in this case. We, therefore, affirm the judgment of the Court of Criminal Appeals. AFFIRMED. HOOPER, C.J., and COOK, LYONS, and JOHNSTONE, JJ., concur. [1] This defendant's certiorari petition carried the name Shelby Tyrone Hambrick. The related case in the Court of Criminal Appeals carried the name Shelby Tyrone Hambrick Green. [2] Section 15-15-20.1 became effective on December 5, 1996. That statute, in pertinent part, removed the three-day waiting requirement. Particularly, § 15-15-20.1(c) reads: "Upon the filing of an information, the court shall ascertain whether the defendant has retained counsel, and, shall appoint counsel if the defendant is indigent. The court shall set an arraignment date to enable the defendant to formally enter a plea of guilty in open court. Arraignment may be held and the guilty plea entered at any time after the filing of an information." (Emphasis added.) As the Court of Criminal Appeals pointed out in its unpublished memorandum, subsection (h) of § 15-15-20.1 explicitly states that that section "supersedes Rule 2.2(e) of the Alabama Rules of Criminal Procedure." [3] Section 15-15-22, reads as follows: "When an information has been filed as provided in Section 15-15-21 and counsel employed or appointed, the court shall, by order entered upon the minutes of the court, fix a date for the defendant to formally make and enter his plea of guilty in open court, which date shall not be within 15 days after the arrest of the defendant nor within three days after notice to the court of his intention to plead guilty, and notice of such date shall be served by the sheriff upon the defendant and upon his counsel." (Emphasis added.)

May 26, 2000

83f8853d-a505-4708-81d3-c0eabac417e6

Doe v. Markham

776 So. 2d 757

1980021

Alabama

Alabama Supreme Court

776 So. 2d 757 (2000) John DOE v. Earby S. MARKHAM. 1980021. Supreme Court of Alabama. June 30, 2000. *758 Martha Durant Hennessy of Stone, Granade & Crosby, P.C., Bay Minette, for appellant. Richard R. Williams, Mobile, for appellee. ENGLAND, Justice. The plaintiff John Doe[1] appeals from the trial court's August 19, 1998, order requiring remittitur of a punitive-damages award to $10,000. We reverse and remand. John Doe is a physician whose medical practice is limited to a particular specialty. Beginning about April 1995, Earby S. Markham began writing false statements about Doe on the restroom walls of two state parks and a hotel located in Baldwin County. Doe learned about the statements from a local police chief, who initially accused Doe of making the statements. The statements read, "Will pay for gay sex" and "Will pay for gay sex with young boys." The statements included Doe's home and office telephone numbers and the words "Ask for John." The statements on the restroom walls in the parks were accompanied by drawings that depicted homosexual acts. Markham admitted in his answer to Doe's complaint and in open court that he had written the statements, that the statements were false, and that the statements were repulsive, offensive, disgusting, and repugnant. Markham also admitted in his answer and in open court that the statements were libelous, slanderous, and defamatory, and that he had published them with malice and with knowledge of their falsity or with gross and reckless disregard as to whether they were true or false. Markham said that he published his statements and drawings to injure Dr. Doe's personal and professional reputation and to cause him emotional distress. Markham admitted that when he published the statements and drawings he knew that Doe had three small children. Doe testified at trial that he finally had to stop his children from answering his home telephone because of the number of obscene telephone calls that had been made to his home. Doe testified that sometimes, when his home telephone rang, both he and his wife would scream at the children, telling them not to answer the telephone. Doe testified that he still cringed when he heard a telephone ring. Doe further testified that his employees had received obscene telephone calls as a result of Markham's statements and drawings and that the calls had caused his office receptionist to become very upset. After Doe discovered that Markham was responsible for the statements and drawings and, therefore, the obscene calls, Doe explained to his employees what had happened. On March 19, 1996, Doe filed a three-count complaint against Markham, charging him with libel and slander, the tort of outrage, and intentional interference with business relations. Markham filed an answer to Doe's complaint on July 1, 1996. *759 On September 18, 1997, Markham moved for a summary judgment; on October 21, 1997, the trial court entered a summary judgment for Markham on Doe's outrage claim. Beginning on March 5, 1998, Doe's remaining claims were tried before a jury, with Judge Charles C. Partin presiding. At the close of the evidence, the court directed a verdict for Doe on the count alleging libel. On the libel count, the jury awarded Doe compensatory damages of $25,000 and punitive damages of $50,000. It found for Doe on the count alleging intentional interference with business relations, awarding compensatory damages of $25,001 and punitive damages of $100,000. The court, on March 6, 1998, made the following entry in the case action summary: (C.R.81-82.) (Emphasis added.) On April 3, 1998, Markham moved for a judgment notwithstanding the verdict or, in the alternative, to alter, amend, or vacate the judgment, or to grant him a new trial. Markham asked for a remittitur of the jury's punitive-damages award. Markham did not appear on April 21, 1998, for the hearing on punitive damages (i.e., the question whether the punitive-damages award was excessive),[2] and the trial court reset the hearing for May 21, 1998. The trial court did not rule on Markham's posttrial motion until August 19, 1998, or until the motion had been pending for 138 days.[3] On that date, the trial court entered an order purporting to deny all relief sought in Markham's posttrial motion except as to the remittitur. The court ordered that the punitive-damages awards be remitted from a total of $150,000 to $10,000. Doe moved, pursuant to Rule 60(b)(4), Ala. R. Civ. P., to vacate the August 19, 1998, order. The court denied the Rule 60(b) motion, stating, "[F]inal judgment on [the] jury verdict was not entered until [August 19, 1998]." Doe appealed from the order requiring a remittitur. *760 Doe first argues that the trial court lacked jurisdiction to order a remittitur of the punitive-damages award more that 90 days after Markham had filed his posttrial motion. We agree. Rule 59.1, Ala. R. Civ. P., reads: (Emphasis added.) Clearly, there are only two circumstances under which a posttrial motion may remain pending in the trial court for more than 90 days: (1) where the record reflects that the parties have given their express consent to allow the motion to remain pending beyond the 90th day; and (2) where the time for a ruling has been extended by the appropriate appellate court. Rule 59.1, Ala. R. Civ. P.; Greco v. Thyssen Min. Constr., Inc., 500 So. 2d 1143, 1145-46 (Ala.Civ.App.1986). Neither of those circumstances occurred in this case. The trial court cannot allow a post-trial motion to remain pending for more than 90 days; at the end of the 90th day, the court loses its jurisdiction to entertain such a motion. Ex parte Hornsby, 663 So. 2d 966 (Ala.1995); Ex parte Johnson Land Co., 561 So. 2d 506, 508 (Ala.1990). The major purpose of Rule 59.1 is to ensure that posttrial motions do not remain pending in the trial courts for a long time unless the parties have consented to the delay. Edgar v. State, 646 So. 2d 683 (Ala. 1994). Here, the trial court attempted to avoid the application of Rule 59.1 by stating that no judgment had been entered until August 19, 1998, when the court issued its order requiring a remittitur.[4] That statement, however, is contrary to Rule 58, Ala. R. Civ. P., which pertains to the rendition and entry of judgments and orders, and is contrary to case law construing this rule. Rule 58(c) reads: (Emphasis added.) Rule 58(a) reads: (Emphasis added.) This Court has recently explained: Smith v. Jackson, 770 So. 2d 1068 at 1072 (Ala.2000) (emphasis added). See also, Asam v. City of Tuscaloosa, 585 So. 2d 60, 60-61 (Ala.Civ.App.1991), in which the Court of Civil Appeals wrote: Id. (Emphasis added.) Rule 60(b)(4), Ala. R. Civ. P., authorizes relief from a void judgment. Under Rule 60(b)(4), "[i]f the judgment is valid, it must stand; if it is void, it must be set aside." Insurance Mgt. & Admin., Inc. v. Palomar Ins. Corp., 590 So. 2d 209 (Ala.1991); Seventh Wonder v. Southbound Records, Inc., 364 So. 2d 1173 (Ala.1978). The defendant's posttrial motion was denied on the 90th day after it was filed. See Rule 59.1. Therefore, at the end of that 90th day the judgment of March 6, 1998, became final. The court had no jurisdiction to rule on the defendant's motion on the 138th day. Thus, the August 19, 1998, order purporting to require a remittitur is a nullity. Borders v. Borders, 702 So. 2d 147, 148 (Ala.Civ.App.1997). Because that August 19, 1998, order was void, the trial court should have granted Doe's Rule 60(b)(4) motion to vacate it. That order is set aside, and this case is remanded for an order consistent with this opinion. VOID ORDER SET ASIDE; CASE REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, and JOHNSTONE, JJ., concur. [1] The plaintiff filed a motion to preserve his anonymity and to be designated as "John Doe." This Court granted the motion on November 6, 1998, and ordered that "in all public documents, including the briefs, the appellant shall be referred to as `John Doe.'" [2] Doe asserts that Markham simply failed to appear. Markham asserts that he was unable to present evidence on his posttrial motions, including his request for remittitur, because the clerk's office failed "to docket these motions" or "post them to the court file." Because of the clerk's error, Markham says, the trial court "was not in position to entertain" these motions and, in fact, was unaware that the motions existed. The trial court rescheduled the hearing on the question of punitive damages to May 21, 1998, without stating a reason for doing so. (C.R. 68-71; 81.) [3] The trial court's case action summary does not state that the parties had agreed for the trial court to let Markham's posttrial motion remain pending beyond the 90-day period prescribed by Rule 59.1, Ala. R. Civ. P. In fact, the case action summary contains no entries after April 30, 1998, when the court reset the punitive-damages hearing for May 21, 1998, and August 19, 1998, when the trial court entered the remittitur order now at issue. [4] See Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986); and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989).

June 30, 2000

083507df-76ab-43e3-a39c-e50afa16f66e

Southern Energy Homes, Inc. v. Kennedy

774 So. 2d 540

1980365

Alabama

Alabama Supreme Court

774 So. 2d 540 (2000) SOUTHERN ENERGY HOMES, INC. v. Letha C. KENNEDY et al. 1980365. Supreme Court of Alabama. May 26, 2000. *541 John Martin Galese and Jeffrey L. Ingram of Galese & Ingram, P.C., Birmingham, for appellant. D'Wayne May and J. Glen Padgett of May & Padgett, L.L.P., Butler, for appellees. LYONS, Justice. Southern Energy Homes, Inc. ("Southern Energy"), appeals from the trial court's order denying its motion to compel arbitration of claims made against it by Letha C. Kennedy, Jeannie M. Kennedy (Letha Kennedy's daughter), and Sandra J. Ford (Letha Kennedy's sister and Jeannie Kennedy's aunt). (The plaintiffs are *542 sometimes referred to hereinafter collectively as "the Kennedys.") We affirm. On March 28, 1996, the Kennedys purchased a mobile home from Jack Lee, doing business as Jack Lee Mobile Homes. That mobile home had been manufactured by Southern Energy. One of the documents executed during the purchase transaction was a document entitled "ALTERNATIVE DISPUTE RESOLUTION AGREEMENT." Jack Lee signed this document in the space provided for the seller's signature, and all three of the plaintiffs signed it in the spaces provided for the buyers' signatures. The names of the parties were not inserted, however, in several blanks in the document, and a blank related to the term "State" was not filled in. The agreement states: (Capitalization, other emphasis, and blank lines in original.) The sales contract referenced in the arbitration agreement is not included in the record on appeal. Southern Energy says that it extended a written warranty on the mobile home purchased by the Kennedys. A copy of the warranty Southern Energy says it provided appears in the record on appeal. The following text appears on the pages of that warranty numbered 4 and 5 (pages 1-3 are not included in the record): We note that the warranty is a form document and that nothing on the copy submitted in the record indicates whether, or when, this document was provided to the Kennedys. On March 25, 1998, the Kennedys sued Jack Lee, Southern Energy, and fictitiously named defendants, alleging negligence, fraud, and breach of express and implied warranties, against both of the named defendants. Specifically, the Kennedys alleged that Jack Lee and Southern Energy told them that the mobile home was new, "was free of defects," and "was top of the line"; that in fact these representations were false; that Jack Lee and Southern Energy breached written and implied warranties on the mobile home; and that Jack Lee, "acting by and through its agents, servants, or employees, negligently carried, transported, set up, installed, and built the foundation for the mobile home." Southern Energy and Jack Lee both moved to compel arbitration of the Kennedys' claims against them. The trial court denied both motions to compel arbitration. Southern Energy appealed from the order denying its motion. Jack Lee did not appeal. Southern Energy argues that the Kennedys are bound by the arbitration provisions contained in its written warranty, and that, based upon those warranty provisions, the trial court erred in denying its motion to compel arbitration. In the alternative, Southern Energy argues that it is entitled to compel the Kennedys to arbitrate their claims against it, based upon the arbitration agreement the Kennedys signed when they purchased the mobile home. We first address Southern Energy's argument that the arbitration agreement between the Kennedys and Jack Lee entitles Southern Energy to compel arbitration. The arbitration agreement is specifically applicable to the parties who executed it, namely, the Kennedys as the buyers and Jack Lee as the seller. The language of the arbitration agreement does not reach the manufacturer; therefore, Southern Energy is not by the terms *545 of that agreement entitled to compel arbitration. First American Title Ins. Corp. v. Silvernell, 744 So. 2d 883 (Ala.1999). Southern Energy also argues that it is entitled to compel arbitration on the basis that the Kennedys' claims against it are inextricably intertwined with their claims against Jack Lee. This Court has held that in some circumstances a nonsignatory can compel arbitration of claims against it if those claims are sufficiently intertwined with claims against a signatory to the agreement containing the arbitration clause. See, e.g., Ex parte Napier, 723 So. 2d 49 (Ala.1998); Ex parte Dyess, 709 So. 2d 447 (Ala.1997). In such a case, the doctrine of equitable estoppel allows the nonsignatory to compel arbitration. MS Dealer Service Corp. v. Franklin, 177 F.3d 942 (11th Cir.1999). In Franklin, the United States Court of Appeals for the Eleventh Circuit discussed the circumstances in which equitable estoppel arises: 177 F.3d at 947 (interpolations and ellipses in Franklin). We can lay to one side the first circumstance described in Franklin because the Kennedys assert a claim against the signatory to the arbitration agreement, Jack Lee, based on a contract separate from the freestanding arbitration agreement executed in this case. We are not aware of any other contract in this case that contains an arbitration clause. Nonsignatories may not compel arbitration of claims against them when those claims arise independently of the contract containing the arbitration clause. Ex parte Roberson, 749 So. 2d 441 (Ala.1999) (Lyons, J., concurring as to the section entitled "Agreement to Arbitrate"). That is what Southern Energy seeks to do here. As for the second circumstance in Franklin, a critical factor is missing in this case that is necessary to allow Southern Energy to compel the Kennedys to arbitrate their claims against it based on a theory that their claims against Southern Energy are inextricably intertwined with their claims against Jack Lee. The concept of "intertwining" necessarily presupposes that the signatory to the arbitration agreement is or will be engaged in an arbitration proceeding with the plaintiff. In this case, Jack Lee did not appeal the trial court's denial of its motion to compel arbitration. Therefore, there is no pending or contemplated arbitration proceeding in which the doctrine of equitable estoppel could allow Southern Energy to compel the Kennedys to arbitrate their claims against it. In other words, "intertwining" requires at least two threads to weave togetherone cannot intertwine a single thread. Under the circumstances presented by this case, requiring Southern Energy to litigate the Kennedys' claims against *546 it cannot render arbitration proceedings meaningless, nor can it thwart federal policy in favor of arbitration. Finally, we address Southern Energy's argument that the arbitration clause in the warranty it says it provided to the Kennedys entitles it to compel them to arbitrate their claims against Southern Energy. In support of its motion to compel arbitration, Southern Energy attached a copy of the warranty it said was provided to the Kennedys (quoted above). It also attached an affidavit from Don McNutt, Southern Energy's director of consumer affairs. He testified: The copy of the warranty that is in the record, however, is simply a standard form, and the only evidence submitted by Southern Energy that indicates that it was provided to the Kennedys is McNutt's affidavit. The warranty contains no notation or certification indicating that the Kennedys received a copy of the warranty, and no documents related to the transaction in which the Kennedys purchased the mobile home, other than the arbitration agreement between the Kennedys and Jack Lee, are included in the record. As Southern Energy points out, the Kennedys' complaint alleges a breach of both express and implied warranties. The complaint states: Despite having alleged that Southern Energy breached both written and implied warranties, however, two of the plaintiffs executed affidavits in which they claim that they never received the written warranty relied upon by Southern Energy. *547 These affidavits were submitted as exhibits to the Kennedys' response to the motions to compel arbitration. Jeannie Kennedy testified in her affidavit as follows: Letha Kennedy also executed an affidavit that contains testimony identical to that given by Jeannie. Southern Energy made no further evidentiary submissions after the Kennedys responded to its motion to compel arbitration. Jeannie Kennedy and Letha Kennedy, in their affidavits, state unequivocally that they never received the warranty Southern Energy says it extended and that Southern Energy has never provided any service to them pursuant to that warranty. As previously noted, Southern Energy's records custodian described the warranty attached to Southern Energy's motion to compel arbitration as the warranty extended to the Kennedys. The evidence was in conflict as to whether Southern Energy had provided the Kennedys with the warranty form containing the arbitration provision, and the trial court was therefore entitled to find that there was no express contract of warranty, and, therefore, no arbitration agreement between Southern Energy and the Kennedys. See Shearson Lehman Bros., Inc. v. Crisp, 646 So. 2d 613, 617 (Ala.1994) (holding that the court should decide challenges to the very existence of an agreement that includes an arbitration provision). We therefore must reject Southern Energy's argument that it is entitled to compel arbitration on the basis of the arbitration clause contained within the warranty. However, the Kennedys are foreclosed from maintaining any claim they may have had against Southern Energy for its alleged breach of the express written warranty. Under the circumstances presented by this case, we affirm the order denying Southern Energy's motion to compel arbitration. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.

May 26, 2000

58d86631-d848-4420-86f0-85f08b28e784

Ex Parte Hammonds

777 So. 2d 777

1990258

Alabama

Alabama Supreme Court

777 So. 2d 777 (2000) Ex parte Artez HAMMONDS. (In re Artez Hammonds v. State). 1990258. Supreme Court of Alabama. June 23, 2000. Rehearing Denied September 1, 2000. Charles D. Decker, Dothan, for petitioner. Bill Pryor, atty. gen., and A. Vernon Barnett IV, asst. atty. gen., for respondent. MADDOX, Justice. Artez Hammonds was convicted of capital murder for the killing of Marilyn Mitchell. The murder was made capital because it was committed during the course of a rape. See § 13A-5-40(a)(3), Ala.Code 1975. The jury unanimously recommended that Hammonds be sentenced to death. The trial court accepted the jury's recommendation and sentenced Hammonds to death. The Court of Criminal Appeals affirmed the conviction and the death sentence. See Hammonds v. State, 777 So. 2d 750 (Ala.Crim.App.1999). We granted certiorari review. See Rule 39, Ala. R.App. P. We have carefully read the briefs and have carefully considered the arguments of counsel. In particular, we have carefully considered the defendant's arguments concerning the taking of a sample of his blood for DNA testing. We have found no error *778 in either the guilt phase or the sentencing phase of the trial that adversely affected Hammonds's substantial rights. We also conclude that the evidence supported the trial court's findings concerning aggravating and mitigating circumstances and that the sentence of death was appropriate under the circumstances of this case. See § 13A-5-53(a) and (b), Ala.Code 1975. Accordingly, the judgment of the Court of Criminal Appeals is due to be affirmed. Before concluding, however, we feel compelled to address certain comments made by the prosecutor during the trial. First, in objecting to a question defense counsel had asked on cross-examination of a prosecution witness, the prosecutor stated: "Let him testify," referring to the defendant. Second, during closing arguments, the prosecutor stated: "He couldn't keep the stories straight in prison." The trial court had previously ordered the parties to make no reference to the fact that the defendant was already in prison for a crime unrelated to the capital murder. Hammonds objected to both comments and, both times, moved the court to declare a mistrial; the trial judge gave the jury a curative instruction in each situation and denied the motion for a mistrial. Given these comments by the prosecutor, we were almost persuaded that the trial judge erred in denying Hammonds's motion for a mistrial. However, we note that the trial judge was present at the trial and could observe the conduct complained of. We conclude, as did the Court of Criminal Appeals, that the trial judge corrected any harm by giving appropriate corrective instructions. This case presents a classic example, however, of prosecutorial conduct that could, in certain circumstances, cause us to overturn a conviction. Although this is a close case, we are persuaded, considering all the circumstances, that the trial judge did not err. We would caution prosecutors, however, that we do not sanction such prosecutorial conduct and that such conduct could cause an appellate court to overturn a conviction. AFFIRMED. HOOPER, C.J., and COOK, SEE, BROWN, and ENGLAND, JJ., concur. HOUSTON, LYONS, and JOHNSTONE, JJ., dissent. HOUSTON, Justice (dissenting). I agree that, except for the two improper comments by the prosecutor addressed in the main opinion, the record presents no reason for reversing the judgment of the Court of Criminal Appeals. However, I think those improper comments require a reversal. The trial court had granted a motion in limine to prevent any reference to the fact that at the time of his trial for capital murder Hammonds was incarcerated for an unrelated crime, an attempted murder. The trial court had done all in its power to assure that the jury not learn that Hammonds, after the date of the killing he was on trial for, had allegedly committed, and had been convicted for, another offense and was, at the time of his trial for capital murder, incarcerated for that subsequent offense. The State, in closing arguments, and in defiance of the limitation the trial court had set, said: "[H]e [i.e., Hammonds] couldn't keep the story straight in prison." Hammonds moved for a mistrial, which the judge denied. The judge should have declared a mistrial. During defense counsel's cross-examination of witness Greg Gordon, the prosecutor objected: Defense counsel objected to the prosecutor's comment as an improper prosecutorial comment on the defendant's decision not *779 to testify. Ex parte Sparks, 730 So. 2d 113 (Ala.1998). In Ex parte Brooks, 695 So. 2d 184, 188 (Ala.1997), this Court wrote: "Comments by a prosecutor on a defendant's failure to testify are highly prejudicial and harmful, and courts must carefully guard against a violation of a defendant's constitutional right not to testify." Because of these improper comments by the prosecutor, I would reverse the judgment of the Court of Criminal Appeals and remand for that court to order a new trial. Therefore, I dissent. LYONS, J., concurs. JOHNSTONE, Justice (dissenting). I respectfully dissent on three grounds. Because the main opinion, in substance, simply affirms the decision of the Court of Criminal Appeals, this dissent will necessarily refer to the opinion issued by the Court of Criminal Appeals. My first ground of dissent is that the trial court erred to reversal in admitting DNA evidence based on a sample of the defendant's blood seized from his body without probable cause. Neither the State nor the Court of Criminal Appeals so much as contends that the State had probable cause to seize the defendant's blood. Rather, the State and the Court of Criminal Appeals rely on the Alabama statutes authorizing the seizure of inmates' blood for the purpose of accumulating a DNA database. The State contends, and the Court of Criminal Appeals holds, that the defendant had no right to refuse the seizure of his blood. The issue is whether the State may, without probable cause, seize a citizen's blood from his body to investigate his suspected involvement in a crime. The Fourth Amendment to the United States Constitution reads: (Emphasis added.) The Fourteenth Amendment to the United States Constitution applies the Fourth Amendment to the states. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961); Wolf v. Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949). Section 5 of the Declaration of Rights in the Alabama Constitution of 1901 reads: (Emphasis added.) Evidence seized in violation of these constitutional provisions is inadmissible. Ex parte Tucker, 667 So. 2d 1339 (Ala.1995); Ex parte W.T.K., 586 So. 2d 850 (Ala.1991); Loyd v. State, 279 Ala. 447, 186 So. 2d 731 (1966); Duncan v. State, 278 Ala. 145, 176 So. 2d 840 (1965). The Court of Criminal Appeals opines that the investigatory interests of the State outweigh the defendant's constitutional right against the seizure of his blood without probable cause. This holding by the Court of Criminal Appeals defies the very concept of a constitutional protection, which is that it protects the defendant from certain specified state action even though the state may be pursuing a recognized state interest. See, e.g., Memorial Hosp. v. Maricopa County, 415 U.S. 250, 94 S. Ct. 1076, 39 L. Ed. 2d 306 (1974); Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972); Brown v. State, 42 Ala.App. 429, 435, 167 So. 2d 281, 287 (1964). A constitutional protection is an exception to the otherwise plenary power of the State to pursue its interests. Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976); Ex parte DeBruce, *780 651 So. 2d 624, 638 (Almon, J., dissenting); Brown v. State, supra; First Avenue Coal & Lumber Co. v. Johnston, 171 Ala. 470, 472-73, 54 So. 598, 599 (1911). On the one hand, the State may succeed in solving certain cases by violating Constitutional limitations on the State. On the other hand, if the courts do not enforce Constitutional limitations on the State, the people will not have limited government. The gravamen of my second ground of dissent is the prosecutor's remark, "Let [the defendant] testify." The prosecutor made this remark in an objection to a question asked a witness by defense counsel. The trial court erred in denying the defendant's motion for a mistrial and in giving an inadequate curative instruction. Ex parte Wilson, 571 So. 2d 1251, 1265 (Ala.1990), sets the minimum requirements for a curative instruction: (Emphasis added.) Ex parte Wilson, 571 So. 2d at 1265, quoting Whitt v. State, 370 So. 2d 736, 739 (Ala.1979). (Citations omitted.) The curative instruction given by the trial court omits the required statement that the jury could not draw any inference from the defendant's failure to testify. Rather, the curative instruction, in its entirety, reads: (Emphasis added.) While the trial judge did caution the jury not to draw any "presumption of guilt or innocence" from the defendant's failure to testify, the defendant was more imperiled by the likelihood that the jury would draw an adverse inference, a much more common legal and mental operation. The prosecutor's comment was both flagrant and prejudicial, and the curative instruction was inadequate, even by the minimum standard allowed by Ex parte Wilson. The gravamen of my third ground for dissenting is the prosecutor's remark, in closing argument, that the defendant "couldn't keep the stories straight in prison." The prosecutor gratuitously injected this remark in flagrant violation of the trial judge's concerted and repeated instructions *781 not to mention the defendant's being in prison for an unrelated conviction. The only exception to the trial judge's prohibition on counsel in this regard was an allowance for testimony regarding taking the defendant's blood sample in prison. The exception did not include or allow the prosecutor's argument that the defendant "couldn't keep the stories straight in prison," and no one had previously mentioned the defendant's prison incarceration to the jury. The trial judge erred by denying the defendant's motion for a mistrial and giving an inadequate curative instruction. The curative instruction was, in essence, simply the standard instruction that the lawyers' arguments are not evidence. This curative instruction accomplished nothing toward unringing the bell wrongfully rung by the prosecutor. We should not affirm the treatment of these issues by the opinion of the Court of Criminal Appeals. Rather, these errors by the trial court so prejudiced the defendant that we should reverse.

June 23, 2000

bd149c82-6d52-40a8-a3df-ea470f5dfd4a

Ex Parte Beavers

779 So. 2d 1223

1990791

Alabama

Alabama Supreme Court

779 So. 2d 1223 (2000) Ex parte John E. BEAVERS. (In re State of Alabama v. John E. Beavers). 1990791. Supreme Court of Alabama. September 1, 2000. John E. Beavers, petitioner, pro se. Bill Pryor, atty. gen., and Robin Blevins, asst. atty. gen., for respondent. *1224 BROWN, Justice. John E. Beavers, an inmate presently incarcerated in the St. Clair Correctional Facility in Springville, petitioned the Court of Criminal Appeals for a writ of mandamus directing the Houston Circuit Court to vacate its order denying his motion to be allowed to proceed in forma pauperis on a petition he had filed pursuant to Rule 32, Ala.R.Crim.P. The Court of Criminal Appeals dismissed his petition, without opinion, on January 13, 2000. Ex parte Beavers, (No. CR-99-0229) ___ So.2d ___ (Ala.Crim.App.2000) (table). He has filed a similar petition in this Court. See Rule 21, Ala.R.App.P. Because we conclude that the trial court abused its discretion in denying Beavers's motion, we grant his petition. Beavers was convicted, in 1985, of burglary in the third degree and was sentenced to 30 years' imprisonment as a habitual offender. The Court of Criminal Appeals, on October 28, 1986, affirmed his conviction. Beavers v. State, 497 So. 2d 612 (Ala.Crim.App.1986). On April 27, 1999, Beavers filed a Rule 32 petition in the Houston Circuit Court, challenging his 1985 burglary conviction. Beavers requested that he be allowed to proceed on his petition in forma pauperis. In support of his request, Beavers, who was then incarcerated at the Kilby Correctional Facility, submitted a certificate executed by an authorized Kilby official, which stated that he had a zero balance in his prison account as of April 27, 1999. Beavers's request to proceed in forma pauperis did indicate, however, that his sister was sending him $10 per week. The circuit court denied Beavers's request to proceed in forma pauperis, but proceeded to rule on the merits of Beavers's petition and denied it. Beavers appealed the circuit court's denial of his Rule 32 petition to the Court of Criminal Appeals. That court dismissed Beavers's appeal on August 27, 1999, without an opinion, holding that the circuit court lacked subject-matter jurisdiction to render a judgment on the Rule 32 petition because it had denied Beavers's motion to proceed in forma pauperis. Beavers v. State, (No. CR-98-1473) 778 So. 2d 879 (Ala.Crim.App. 1999) (table). In dismissing Beavers's appeal, the Court of Criminal Appeals noted that the proper method by which to challenge the circuit court's denial of his request to proceed in forma pauperis was by petition for a writ of mandamus. See Rule 21(e), Ala.R.App.P. On November 1, 1999, Beavers filed a mandamus petition in the Court of Criminal Appeals, asking that Court to direct the Houston Circuit Court to vacate its order denying his request to proceed in forma pauperis. The Court of Criminal Appeals denied Beavers's petition on January 13, 2000. On January 24, 2000, Beavers petitioned this Court for a writ of mandamus. "[M]andamus, and not appeal, is the proper method by which to compel the circuit court to proceed on an in forma pauperis petition ." Goldsmith v. State, 709 So. 2d 1352, 1353 (Ala.Crim.App.1997). "To impose any financial consideration between an indigent prisoner and the exercise of his right to sue for his liberty is to deny that prisoner equal protection of the laws." Hoppins v. State, 451 So. 2d 363, 364 (Ala.Crim.App.1982) (citing Smith v. Bennett, 365 U.S. 708, 81 S. Ct. 895, 6 L. Ed. 2d 39 (1961)). See also Ex parte Hurth, 764 So. 2d 1272 (Ala.2000). "[I]n order to prevent `effectively foreclosed access' [to the courts], indigent prisoners must be allowed to file appeals and habeas corpus petitions without payment of docket fees." Bounds v. Smith, 430 U.S. 817, 822, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977). The docket fee for filing a petition for postconviction relief is $140.00. See § 12-19-71(3), Ala.Code 1975; Rule 32.6(a), Ala.R.Crim.P. Moreover, § 12-19-70(b), Ala.Code 1975, provides that "[t]he docket fee may be waived initially [for an indigent petitioner] and [then] taxed as costs at the conclusion of the case." Although *1225 Beavers's in forma pauperis declaration indicated that his sister sent him $10 per week, the accompanying certificate indicated that he had a zero balance in his prison account on the day he filed his Rule 32 petition. Thus, the evidence before us suggests that Beavers was, in fact, indigent. See Ex parte Coleman, 728 So. 2d 703, 704-05 (Ala.Crim.App.1998). We conclude that the Houston Circuit Court erred when, without inquiry, it denied Beavers's request to proceed in forma pauperis. Furthermore, the circuit court erred in ruling on the merits of Beavers's Rule 32 petition after denying his request to proceed in forma pauperis. Because the circuit court denied his request to proceed in forma pauperis, it lacked jurisdiction to rule on the merits of his petition. See Ex parte Thomas, 723 So. 2d 1261 (Ala.1998). The circuit court is directed to vacate its order denying Beavers's motion to be allowed to proceed in forma pauperis and is directed to permit Beavers to proceed with his Rule 32 petition without first paying a filing fee. PETITION GRANTED; WRIT ISSUED. HOOPER, C.J., and HOUSTON, SEE, and ENGLAND, JJ., concur.

September 1, 2000

a24509b3-91ee-4712-8cd7-76719c901e1b

Ex Parte Yost

775 So. 2d 794

1981976

Alabama

Alabama Supreme Court

775 So. 2d 794 (2000) Ex parte Nancy C. YOST. (In re Nancy C. Yost v. William H. Yost). 1981976. Supreme Court of Alabama. June 9, 2000. Herndon Inge III, Mobile, for petitioner. Submitted on petitioner's brief only. BROWN, Justice. On November 6, 1998, the Mobile Circuit Court entered a judgment divorcing William H. Yost ("the husband"), and Nancy C. Yost ("the wife"). That judgment, in pertinent part, awarded the wife the marital home, valued at $65,000 subject to a $17,000 mortgage debt; household furnishings, *795 valued at $7,483; real property located at 426 West Vista Court in Mobile; the funds in a checking account and a credit-union account held in her name, totalling $31,273; and a 1987 Cadillac Cimarron automobile, valued at $1,500. The husband was awarded a 1998 Bay-liner boat, valued at $23,000, subject to a $17,000 indebtedness; real property located on Dauphin Island; four cemetery lots; scuba gear; the funds in a checking account, a savings account, and a Christmas Club account held in his name, totalling $1,642. The trial court awarded each party any 401(k)-plan or other retirement benefits in their separate names and ordered that all joint accounts be equally divided. The court awarded no alimony to the wife, nor did it reserve the right to award periodic alimony in the future. The wife appealed. The Court of Civil Appeals, on June 25, 1999, affirmed the judgment without an opinion. Yost v. Yost (No. 2980338), 777 So. 2d 332 (Ala.Civ.App. 1999) (table). We granted the wife's petition for certiorari review to consider whether the trial court abused its discretion. The wife argues, as the basis of her certiorari petition, that the decision of the Court of Civil Appeals conflicts with prior decisions of this Court, with prior decisions of the Court of Civil Appeals, and with the Code of Alabama 1975. Specifically, she contends that the trial court's division of the marital property and the court's failure to award periodic alimony amounted to an abuse of discretion. The Court of Civil Appeals has written: Sartain v. Sartain, 682 So. 2d 1368, 1369 (Ala.Civ.App.1996). A trial court may also consider retirement accounts in making its determinations regarding alimony and the division of property; however, there is no requirement that retirement accounts be divided. Ex parte Vaughn, 634 So. 2d 533 (Ala.1993). These parties had been married approximately 38 years when the husband sued for a divorce. Both the husband and the wife are 64 years old. The husband is in excellent health; the wife takes medication for her nerves, smokes a carton of cigarettes a week, and "enjoys drinking wine." The wife testified that she drinks one to *796 two gallons of wine each week, beginning every day at 8:00 or 9:00 in the morning. Both parties acknowledged that they had abused alcohol in the past; however, the husband quit drinking in 1984 and has maintained his sobriety. The wife denies that she has a drinking problem. In its divorce judgment, the trial court made no specific finding of fault. However, testimony indicated the wife had engaged in a short-term extramarital affair some 34 years before. There also appears to be some question as to the true paternity of the parties' 38-year-old son; when asked whether the husband was the father, the wife refused to answer, merely stating, "I don't think that needs to enter this case." Moreover, the wife's excessive use of alcohol seems to have greatly contributed to the husband's decision to end the marriage. Evidence also showed that the husband had made approximately 292 telephone calls to another woman, J.C., during a 7-month period; that the two had been seen holding hands and touching one another at a Y.M.C.A. facility; and that after being together at the Y.M.C.A. facility he and J.C. had gone to her house and had spent three hours inside with no lights on, save for a blue light in what appeared to be the bedroom. The husband denied having any kind of sexual relationship with J.C. or any other woman during his marriage; he stated that he was very hurt by the recent discovery of his wife's affair. We note that J.C. is the widow of the husband's best friend, who had died a short time before the husband sued for a divorce. The wife testified that the husband always informed her when he spent time with J.C., including visits to her home. She further stated that she had told the husband it was inappropriate for him to spend time with J.C. at her home after they had already spent time together at the Y.M.C.A. facility. The husband has a degree in chemical engineering and is employed by Mobile Shipbuilding and Repair Company. He also does project work for Parker Towing Company. In 1997, the husband had gross earnings of $71,847. His monthly net income is $4,379. The wife is a retired school teacher. She receives approximately $2,100 per month as her teacher's retirement pay and $828 per month in Social Security benefits. The wife argues that the trial court abused its discretion (1) by failing to award periodic alimony; (2) by failing to award her a portion of the husband's 401(k)-plan retirement benefits; and (3) by failing to award her, as her separate estate, $27,000 she had inherited from her mother. Section 30-2-51, Ala.Code 1975, provides, in pertinent part: The wife testified that four years before the divorce she had inherited $27,000 from her mother's estate. She deposited the money into a savings account that she designates as "her" savings account. The wife contends that the $27,000 has never been used for the common benefit of the marriage; thus, she says, the inheritance is her separate estate and should be excluded from the division of the marital property. The record shows that the "wife's" savings account is actually held jointly in the names of the husband and the wife; the inherited funds were combined with other funds in a joint account *797 and thereby lost any status as separate property. Accordingly, the trial court properly considered all funds in the joint account to be marital property and, therefore, subject to division. The wife further argues that the trial court erred in failing to award her periodic alimony and failing to award her a portion of the husband's 401(k)-plan retirement benefits, which, at the time of the divorce, was worth $286,094. She essentially argues that the property division is not equitable. "Matters of alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either of those issues." Kennedy v. Kennedy, 743 So. 2d 487, 489 (Ala.Civ.App.1999). After thoroughly reviewing the record, we cannot say that the trial court abused its discretion in denying the wife periodic alimony and in denying her a portion of the funds in the husband's retirement account. When the court is fashioning a property division, "the conduct of the parties and fault with regard to the breakdown of the marriage are ... factors for the trial court to consider, even where the parties are divorced on the grounds of incompatibility." Smith v. Smith, 727 So. 2d 113, 116 (Ala.Civ.App. 1998). We further note that the wife, by being awarded the marital residence, effectively received a property settlement or alimony in gross of approximately $48,000. We conclude, however, that the court abused its discretion in failing to reserve the right to order periodic alimony in the future. When a trial court does not award periodic alimony in a divorce case, or does not reserve the right to do so upon future consideration, its power to award alimony is permanently lost. See Chambliss v. Chambliss, 587 So. 2d 406, 408 (Ala. Civ.App.1991) (trial court abused its discretion by failing to reserve the right to award alimony to the wife in the future, in view of disparity between the parties' incomes and earning potentials, as well as the possibility the wife would eventually experience ill health). To the extent it affirmed that portion of the trial court's judgment denying periodic alimony and that portion dividing the parties' property, the judgment of the Court of Civil Appeals is affirmed. However, to the extent it affirmed the trial court's failure to reserve the right to award alimony in the future, the judgment of the Court of Civil Appeals is reversed. On remand, the Court of Civil Appeals should direct the trial court to reserve the right to award periodic alimony in the future. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, and ENGLAND, JJ., concur. JOHNSTONE, J., concurs in part and dissents in part. JOHNSTONE, Justice (concurring in part and dissenting in part). I concur insofar as the majority affirms, and I dissent insofar as the majority reverses. I respectfully submit that the judgment of the trial court should be affirmed in all respects.

June 9, 2000

6d5acb13-dda3-443b-8bdd-b5ff22786620

Ex Parte Land

775 So. 2d 847

1971816

Alabama

Alabama Supreme Court

775 So. 2d 847 (2000) Ex parte Michael Jeffrey LAND. (In re Michael Jeffrey Land v. State). 1971816. Supreme Court of Alabama. June 2, 2000. Rehearing Denied July 28, 2000. *848 J. Drew Colfax, Equal Justice Initiative of Alabama, Montgomery, for petitioner. Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for respondent. LYONS, Justice. The opinion of August 6, 1999, is withdrawn and the following is substituted therefor. Michael Jeffrey Land petitions this Court for a writ of mandamus directing Judge James H. Hard IV, of the Jefferson Circuit Court, to grant a portion of his motion for discovery filed in regard to his petition for postconviction relief. We grant the petition in part and deny it in part, and issue the writ. Land first petitioned the Court of Criminal Appeals for this relief; that court, on July 2, 1998, denied his petition, with an opinion. See Ex parte Land, 775 So. 2d 840 (Ala.Crim.App.1998). Land then filed an application for rehearing with the Court of Criminal Appeals, but later withdrew *849 that application and filed a petition in this Court. His petition is before this Court pursuant to Rule 21(e), Ala. R.App. P., which provides that a decision by a court of appeals on an original petition for the writ of mandamus may be reviewed de novo by this Court, and that an application for rehearing below is not a prerequisite for such review.[1] In December 1993, Land was convicted of two counts of capital murder for the murder of Candace Brown, on the basis that that murder was committed during a burglary and during a kidnapping. See Ala.Code 1975, §§ 13A-5-40(a)(1) and (a)(4). The circuit court sentenced Land to death by electrocution. His conviction and sentence were affirmed on appeal. See Land v. State, 678 So. 2d 201 (Ala. Crim.App.1995), aff'd, 678 So. 2d 224 (Ala.), cert. denied, 519 U.S. 933, 117 S. Ct. 308, 136 L. Ed. 2d 224 (1996). In October 1997, Land petitioned the Circuit Court of Jefferson County (the trial court in which he had been convicted) for postconviction relief, pursuant to Rule 32, Ala. R.Crim. P., requesting that his conviction and sentence be set aside. Land based his Rule 32 petition on several claims, only a few of which are relevant to this petition for the writ of mandamus. The State filed motions asking the circuit court to dismiss many of the claims in Land's petition. On April 20, 1998, the circuit court dismissed most of Land's claims because they either had been raised on the direct appeal or could have been raised on the direct appeal, and it dismissed the other claims for failure to meet the specificity requirement of Rule 32.6(b), Ala. R.Crim. P. However, the circuit court did allow Land to amend his petition as it related to the claims lacking specificity. In his petition, Land contends that his principal Rule 32 claim is that his trial counsel was ineffective at the guilt and penalty stages of his trial. For the most part, the various subparts of Land's Rule 32 claim of ineffective assistance of counsel remain pending before the circuit court, and the majority of the discovery he seeks relates to his ineffective-assistance claim. Land also seeks discovery relative to claims pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); the State contends those claims have been dismissed. Soon after filing his Rule 32 petition, Land filed two discovery motions in the circuit court. In his first motion, Land sought access to the complete files of the Jefferson County district attorney's office related to the case, and the complete files of all other agencies involved in the investigation of the charges against him, including the Jefferson County Sheriff's Department, the Birmingham Police Department, the Jefferson County coroner's office, the Alabama Bureau of Investigation, the Alabama Department of Forensic Sciences, and the Alabama Department of Youth Services. In his second discovery motion, Land sought access to his institutional records, as generated by several state agencies. The State wrote a letter to the trial court stating its opposition to Land's motions, and it orally opposed the motions at a status conference. The trial court entered an "Order Regarding Discovery of Prosecution Files," which stated: Although in its order the trial court did not mention Land's other discovery requests, it did, in a letter to the parties, state that the rest of what Land "is seeking by way of discovery is irrelevant to the issues framed by the Petition for Relief." Land moved for a "reconsideration," but the trial court denied the motion. In his mandamus petition, Land alleges that the trial court erred in denying him access to his penal-institution records, his mental-health records, and his juvenile records, and in denying him access to records of the Birmingham Police Department's investigation regarding other suspects in Candace Brown's murder. Land argues that these materials support his claims alleging ineffective assistance of counsel and his claim alleging that the State committed a Brady violation. We begin with the rule that "mandamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Horton, 711 So. 2d 979 (Ala.1998) (citations omitted). This Court has held that a petition for the writ of mandamus is the proper means for seeking appellate review of a trial court's discovery order. Ex parte Monk, 557 So. 2d 832 (Ala.1989). As noted above, Land has complied with Rule 21, Ala. R.App. P., and the State has refused to produce the materials he sought. Therefore, the only issues to be resolved are (1) whether the State has an imperative duty to give Land access to the materials requested and (2) whether Land has shown a clear legal right to the discovery order he seeks. In determining whether Land has shown a clear legal right, we limit our review to determining whether the trial court abused its discretion in denying Land's discovery motion. Horton, 711 So. 2d at 983. Land maintains that the State has an imperative duty to give him access to the materials and that he has shown a clear legal right to the relief requested because, he says, he presented the trial court with claims of ineffective assistance of counsel that were meritorious on the face of the petition. He says he alleged facts that, if proven, would entitle him to relief. Land points us to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), in which the United States Supreme Court held that to establish a claim of ineffective assistance of counsel, a petitioner must prove (1) that counsel did not provide reasonably effective assistance and (2) that counsel's deficient performance prejudiced the petitioner. Land also points us to the standard for showing prejudice as stated in Strickland, in which the Supreme Court held: "[To show prejudice, the] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694, 104 S. Ct. 2052. Land argues that it would be difficult, if not impossible, for him to satisfy the prejudice prong of Strickland without the requested discovery. He maintains that in order to show the trial court a reasonable probability that the outcome would have *851 been different, he must obtain actual proof in the form of records to show that evidence was available to his trial counsel at the time of the trial and that there was a reasonable probability that that evidence would have affected the outcome. Land says: (Petition for Mandamus, p. 6.) As for the documents relating to his claim that the State committed a Brady violation, Land maintains that the trial court abused its discretion in restricting discovery to the prosecutor's files because, he says, he provided the trial court with specific facts and allegations showing that the police department has information regarding its investigation of other suspects in the murder of Candace Brown. The State contends that Land has not shown that the State has a duty to give him access to the materials he seeks or that he has a clear legal right to the order sought. The State says that nothing in the Alabama Rules of Criminal Procedure provides a vehicle for postconviction discovery of documents and/or other things.[2] The State concedes that a trial court has an inherent right to compel discovery. However, it maintains that this right to compel discovery should be limited to those circumstances in which the defendant presents the trial court with "good cause" to order the State to disclose the requested items. The State says Land did not present the trial court with good cause and that he is merely on a "fishing expedition" to find information to support his petition, which, the State says, should be meritorious on its face. We note that in making its arguments, the State relies on the July 2, 1998, opinion of the Court of Criminal Appeals, in which that court denied a petition similar to the one now before us. In that opinion, the Court of Criminal Appeals correctly recognized that the Alabama Rules of Criminal Procedure do not specifically provide for postconviction discovery of documents and/or other things. See Land, supra, 775 So. 2d at 843. The Court of Criminal Appeals also correctly noted that "there is little Alabama law on this issue." Id. at 845. That court then, 775 So. 2d at 845, quoted with approval State v. Marshall, 148 N.J. 89, 690 A.2d 1, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), in which the New Jersey Supreme Court, when faced with a question of discovery in a postconviction-relief proceeding commenced by a defendant who had been convicted of capital murder, held that "where a defendant presents the [postconviction-relief] court with good cause to order the State to supply the defendant with discovery that is relevant to the defendant's case and not privileged, the court *852 has the discretionary authority to grant relief." 148 N.J. at 270, 690 A.2d at 92. In rejecting Land's petition for a writ of mandamus, the Court of Criminal Appeals held that Land had "established no `clear legal right' to the discovery [sought]," 775 So. 2d at 847. Although that court did not specifically say that Land did not show good cause for the discovery sought, it held that "Judge Hard's discovery order gives Land more than he is lawfully entitled to obtain in a post-conviction proceeding." Id. at 846. The Court of Criminal Appeals also distinguished this Court's decision in Ex parte Monk, supra, 557 So. 2d at 836-37, in which this Court stated that "broader discovery" is justified in capital cases, by stating that the present case involves a petition for postconviction relief and not a motion for pretrial discovery. See the July 2, 1998, opinion, 775 So. 2d at 843. We agree with the Court of Criminal Appeals that "good cause" is the appropriate standard by which to judge postconviction discovery motions. In fact, other courts have adopted a similar "good-cause" or "good-reason" standard for the postconviction discovery process. See Marshall, supra; State v. Lewis, 656 So. 2d 1248 (Fla.1994); People ex rel. Daley v. Fitzgerald, 123 Ill. 2d 175, 121 Ill.Dec. 937, 526 N.E.2d 131 (1988). As noted by the Illinois Supreme Court, the good-cause standard guards against potential abuse of the postconviction discovery process. See Fitzgerald, supra, 123 Ill. 2d at 183, 121 Ill.Dec. 937, 526 N.E.2d at 135. We also agree that New Jersey's Marshall case provides a good working framework for reviewing discovery motions and orders in capital cases. In addition, we are bound by our own rule that "an evidentiary hearing must be held on a [petition for postconviction relief] which is meritorious on its face, i.e., one which contains matters and allegations (such as ineffective assistance of counsel) which, if true, entitle the petitioner to relief." Ex parte Boatwright, 471 So. 2d 1257, 1258 (Ala.1985).[3] We emphasize that this holding that postconviction discovery motions are to be judged by a good-cause standard does not automatically allow discovery under Rule 32, Ala. R.Crim. P., and that it does not expand the discovery procedures within Rule 32.4. Accord Lewis, supra, 656 So. 2d at 1250, wherein the Florida Supreme Court stated that the good-cause standard did not affect Florida's rules relating to postconviction procedure, which are similar to ours. By adopting this standard, we are only recognizing that a trial court, upon a petitioner's showing of good cause, may exercise its inherent authority to order discovery in a proceeding for postconviction relief. In addition, we caution that postconviction discovery does not provide a petitioner with a right to "fish" through official files and that it "is not a device for investigating possible claims, but a means of vindicating actual claims." People v. Gonzalez, 51 Cal. 3d 1179, 1260, 800 P.2d 1159, 1206, 275 Cal. Rptr. 729, 776 (1990), cert. denied, 502 U.S. 835, 112 S. Ct. 117, 116 L. Ed. 2d 85 (1991). Instead, in order to obtain discovery, a petitioner must allege facts that, if proved, would entitle him to relief. Cf. Porter v. Wainwright, 805 F.2d 930, 933 (11th Cir.1986) ("a hearing [on a habeas corpus petition] is not required unless the petitioner alleges facts which, if proved, would entitle him to federal habeas relief"), cert. denied, 482 U.S. 918, 919, 107 S. Ct. 3195, 96 L. Ed. 2d 682 (1987). Furthermore, a petitioner seeking postconviction discovery also must meet the requirements of Rule 32.6(b), Ala. R.Crim. P., which states: That having been said, we must determine whether Land presented the trial court with good cause for ordering the requested discovery. To do that, we must examine Land's basis for the relief requested in his postconviction petition and determine whether his claims are facially meritorious. Only after making that examination and determination can we determine whether Land has shown good cause. We begin with Land's claims that relate to his counsel's performance during the penalty (or sentencing) phase of his trial because most of his discovery requests arise from these claims. Land alleges that his trial counsel was ineffective at the penalty phase of his trial because, he says, his counsel did not investigate the possibility of the existence of mitigating evidence and did not present any evidence of mitigating circumstances. Land says that evidence of mitigating circumstances existed at the time of his trial and that that evidence consists of the following: (1) evidence that he adjusts well to incarceration; this evidence, he says, is contained in records of his incarceration in the Jefferson County jail, the State Cattle Ranch Facility, the Mobile County jail, the Mt. Meigs Youth Services Facility, and records held by the Alabama Board of Pardons and Paroles and the Alabama Department of Corrections; (2) evidence of mental-health problems; this evidence, he says, is contained in records maintained by Bryce Hospital, Taylor Hardin Secure Medical Facility, the Alabama Department of Mental Health and Mental Retardation, the Alabama Department of Youth Services, Mt. Meigs Youth Services Facility, and the Department of Human Resources; (3) evidence of mental and emotional problems stemming from family problems and relationships he experienced as a juvenile; this evidence, he says, is held by the Alabama Department of Youth Services and the Mt. Meigs Youth Services Facility. Land maintains that all of this evidence was available at the time of his trial and that his trial counsel should have attempted to discover it and present it at the penalty phase of his trial. The State contends that Land is merely attempting to use the discovery process as a "fishing expedition" and to "drum up" a claim of ineffective assistance of counsel because, the State says, none of his claims is meritorious on its face. The State also argues that Land has not shown that the documents he requests relate to his claims of ineffective assistance of counsel or that the documents he seeks contain any mitigating evidence. The State also maintains that Land has waived his right to request discovery of his correctional and juvenile records because he did not make such a request before the trial court. Last, the State contends that Land is not entitled to the requested information because, it says, he has not presented evidence indicating that he has ever had any interaction with Bryce Hospital, Taylor Hardin Secure Medical Facility, or the Alabama Department of Human Resources. First, we disagree with the State's argument that Land's claims are not facially meritorious. In fact, Land's claims, if proved to be true, would entitle him to relief. The United States Court of Appeals for the Eleventh Circuit has held that trial counsel's failure to investigate the possibility of mitigating evidence is, per se, deficient performance. See Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991) ("our case law rejects the notion that a `strategic' decision can be reasonable when the attorney has failed to investigate his options and make a reasonable choice between them"), cert. denied, 503 U.S. 952, *854 112 S. Ct. 1516, 117 L. Ed. 2d 652 (1992); see, also, Jackson v. Herring, 42 F.3d 1350, 1366-68 (11th Cir.) ("Although counsel need not `investigate every evidentiary lead,' he must gather enough knowledge of the potential mitigation evidence to arrive at an `informed judgment' in making [the decision not to present such evidence].... [A] legal decision to forgo a mitigation presentation cannot be reasonable if it is unsupported by sufficient investigation.") (emphasis added; citations omitted), cert. dismissed, 515 U.S. 1189, 116 S. Ct. 38, 132 L. Ed. 2d 919 (1995). Furthermore, trial counsel may be found ineffective for failing to present evidence of adjustment to incarceration, evidence of mental-health problems, and evidence regarding the defendant's contact with a juvenile system. See Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986) (holding that a capital defendant must be permitted at the penalty phase of his trial to introduce evidence of adjustment and good behavior while incarcerated); Horton v. Zant, supra (counsel found ineffective for not presenting evidence of adjustment to incarceration); Blanco v. Singletary, 943 F.2d 1477 (11th Cir.1991), cert. denied, 504 U.S. 943, 112 S. Ct. 2282, 119 L. Ed. 2d 207 (1992) (counsel found ineffective for failing to introduce evidence that defendant had mental-health problems and a very low IQ and had suffered from various bouts of paranoia and depression); Porter v. Wainwright, supra (holding that juvenile records may be evidence of mitigating circumstances and that trial counsel's failure to present such records may constitute ineffective assistance of counsel); see, also, Williams v. Turpin, 87 F.3d 1204 (11th Cir.1996) (failure to investigate and present juvenile records may constitute ineffective assistance of counsel, depending on the content of such records and a showing of prejudice). Second, the State's argument that Land has not shown that the requested documents contain evidence of mitigating circumstances and that he therefore is not entitled to the requested discovery is equally unavailing. Until the documents are actually produced, it is impossible to determine whether they contain evidence of mitigating circumstances. Cf. United States v. Streit, 962 F.2d 894, 900 (9th Cir.) (rejecting the Government's position that the defendant could not discover sealed documents because he could not show that the documents contained exculpatory evidence and stating that "[i]f defendants were required to make a positive showing that sealed documents in fact contained exculpatory material, Brady violations would come to the attention of appellate courts only by the merest happenstance of confidential material falling into a defendant's hands"), cert. denied, 506 U.S. 962, 113 S. Ct. 431, 121 L. Ed. 2d 352 (1992). Thus, this argument is without merit. Third, we disagree with the State's contention that Land waived his right to request discovery of his correctional and juvenile records by not requesting those records in his motions made in the trial court. A close review of those motions shows that Land did request those records. In his Rule 32 petition, at p. 856, Land alleged that his trial counsel was ineffective because he failed to investigate and offer mitigating evidence, which would have included his correctional and juvenile records. In his first motion for discovery, Land requested discovery of his juvenile and correctional records. See Motion for Discovery of Prosecution Files, Records, and Information Necessary to a Fair Rule 32 Evidentiary Hearing, p. 12. In his motion for "reconsideration," Land argued that he was "clearly constitutionally entitled to those records which predate his arrest for the current [offense]," and that "Such records are necessary to claims ... [that counsel was ineffective during the penalty phase of his trial], for they may establish that a) Mr. Land was a model prisoner...." Motion for Reconsideration of the Denial of Court-Ordered Discovery of Records Necessary to a Fair *855 Rule 32 Evidentiary Hearing, p. 16. Thus, this argument is also without merit. Fourth, we reject the State's argument that Land should not be allowed to discover the requested materials because, the State argues, he has not shown any connection with Taylor Hardin Secure Medical Facility, Bryce Hospital, or the Alabama Department of Human Resources. Land has alleged that persons from both Taylor Hardin and Bryce evaluated him. He also claims that he and his family had interaction with the Alabama Department of Human Resources. Furthermore, if these facilities have no documents that relate to Land's claims, they can simply say so. Merely determining whether such documents exist would not unduly burden the State. Thus, Land presented the trial court with claims of ineffective assistance of counsel that are facially meritorious. In fact, these claims suggest several potential serious deficiencies in the performance of his trial counsel that, if proved, may entitle him to relief. Furthermore, we agree with Land that it would be practically impossible for him to show that he suffered prejudice from the deficient performance of his counsel unless he could show the trial court that mitigating evidence (which he has a reasonable basis to believe in fact exists) existed at the time of his trial and then argue, on the basis of that evidence, that a "reasonable probability" exists that a jury hearing the evidence would have recommended life imprisonment without parole. Cf. Jackson v. Herring, supra, 42 F.3d at 1364, 1369 (federal habeas evidentiary hearing "unearthed a great wealth of [mitigating evidence]" from which the defendant was able to show "that a reasonable probability exists that a jury hearing this evidence would have recommended life"). Therefore, we conclude that Land demonstrated to the trial court that he was entitled to the requested discovery (listed above), which is relevant to his claim that his trial counsel was ineffective at the penalty phase of his trial. Land contends in his mandamus petition that his trial counsel was ineffective at the guilt stage of his trial because, he says, his counsel did not adequately challenge his alleged waiver of rights made pursuant to Miranda v. Arizona, supra, on the basis that he lacked the mental capacity to make such a waiver. Land says that the documents pertinent to this claim that his trial counsel did not adequately challenge his Miranda waiver are his mental-health and correctional records; he says his mental-health history and his prior experiences with law-enforcement authorities are directly relevant to the question of the voluntariness of his Miranda waiver. The State maintains that Land did not make this claim in his petition for postconviction relief. The State is correct in arguing that Land did not present this claim in his Rule 32 petition as he has presented it in his mandamus petition. In his Rule 32 petition, Land alleged numerous ways in which he said his trial counsel was ineffective at the guilt stage of his trial. A failure to adequately challenge his waiver of his Miranda rights was not, however, among the shortcomings ascribed to Land's trial counsel. Land made a separate claim in his Rule 32 petition in which he challenged the admission during his trial of the statements he had made while in custody, arguing that the statements were inadmissible because, he said, police officers had continued to interrogate him after he had invoked his right to counsel and because, he further says, the statements were obtained through coercion and intimidation. Nowhere in this claim does Land mention the alleged ineffectiveness of his trial counsel. Moreover, the Miranda claim was dismissed by the trial court. Land has not shown that he is entitled to the discovery he seeks in connection with this dismissed claim. Land next argues that the trial court erred when it granted his initial request *856 but restricted discovery to the district attorney's files and refused to order discovery of other documents held by certain state agencies. He maintains that the state agencies involved in his case are required to provide him with requested Brady material. He says that, in support of his request to the trial court, he attached a number of records obtained in response to his initial request, records indicating that officers from the Birmingham Police Department investigated and interviewed other suspects about the disappearance and murder of Candace Brown. He claims that the records of these investigations and interviews were never provided to him. Thus, he says, the trial court was required to order the production of these documents so that he could prove that the State committed a Brady violation. The State contends that Land is not entitled to the requested discovery, for the following reasons: (1) because the trial court dismissed his Brady claims; (2) because Land has offered no evidence indicating that the records in question would lead to exculpatory information; (3) because the district attorney is not required to go on a "fishing expedition" to other state agencies; and (4) because Land is seeking to "fish through" the State's files in order to uncover a Brady claim. The State correctly points out that Land is not entitled to the discovery requested relative to his Brady claim, because that claim has been dismissed. Land's Brady claim states: The trial court dismissed the claims relative to the fingerprints and the grand-jury proceedings because those claims were procedurally barred, pursuant to Rule 32.2(a). It dismissed the remainder of Land's Brady claim for a failure to comply with the specificity requirement of Rule 32.6(b). Because Land has no Brady claim pending in his Rule 32 petition, he has not shown that he is entitled to the discovery he seeks in connection with such a claim.[4] Because Land's Brady claim has been dismissed, we do not address the remainder of the parties' arguments relative to that claim. Land has shown a clear legal right to the relief sought as to his ineffective-assistance-of-counsel claims that were not dismissed by the trial court. The trial court is directed to order production of the documents held by the agencies named in part I.A. of this opinion; to that extent, the mandamus petition is granted, but it is otherwise denied. OPINION OF AUGUST 6, 1999, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING GRANTED; PETITION GRANTED IN *857 PART AND DENIED IN PART; WRIT ISSUED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, JOHNSTONE, and ENGLAND, JJ., concur. BROWN, J., recuses herself.[*] [1] Land also asks this Court for a writ of mandamus directing the Court of Criminal Appeals to order the discovery he seeks. Rule 21(e) states that when an original petition for the writ of mandamus has been denied by a Court of Appeals, the petitioner may file a similar petition in this Court, seeking a writ directed to the trial court. Therefore, we do not address Land's request for a writ of mandamus directed to the Court of Criminal Appeals. [2] The State does concede that Rule 32.4, Ala. R.Crim. P., allows the trial court, in its discretion, to allow "the taking of depositions for discovery or for use at trial." The State says, however, that this provision does not allow for discovery of documents and other things in the possession of the State. [3] Ex parte Boatwright was decided before this Court adopted Rule 32, Ala. R.Crim. P., when a petition for postconviction relief was usually styled as a "petition for writ of error coram nobis." However, as Justice Maddox has noted: "The common law writ of coram nobis in criminal cases has been incorporated into Rule 32." 2 Hugh Maddox, Alabama Rules of Criminal Procedure § 32.0, p. 971 (2d ed. 1994). [4] The State informs us in its brief in support of its application for rehearing that Land filed an amended Rule 32 petition in the circuit court on November 6, 1998, some four months after he had filed his mandamus petition with this Court. The claims in that amended petition, of course, are not before us. [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

June 2, 2000

5c116dca-3c1c-4677-a466-fe3108790fee

Ex Parte Horton Homes, Inc.

774 So. 2d 536

1990459

Alabama

Alabama Supreme Court

774 So. 2d 536 (2000) Ex parte HORTON HOMES, INC., et al. (In re John B. Britt and Landria W. Britt v. Horton Homes, Inc., et al.) 1990459. Supreme Court of Alabama. May 26, 2000. *537 Matthew W. White of Walker, Hill, Adams, Umbach, Meadows & Walton, Opelika, for petitioners. G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for respondents. LYONS, Justice. Horton Homes, Inc., Dynasty, Inc., and H & S Homes (collectively referred to as "Horton Homes"), are defendants in an action pending in the Elmore Circuit Court arising out of the purchase and set-up of a manufactured home. The plaintiffs, John B. Britt and Landria W. Britt ("the Britts"), allege breach of express and implied warranties, violations of the Magnuson-Moss Warranty Act, negligent or wanton repair, fraud by misrepresentation, and fraud by failure to disclose. Horton Homes petitions for a writ of mandamus directing Elmore Circuit Judge John B. Bush to vacate his order directing Horton Homes to respond to the Britts' requests for production. We deny the petition. On May 19, 1999, the Britts filed with their complaint, pursuant to Rule 34, Ala. R. Civ. P., several requests for production; three of those requests are the subject of this petition. Those three requests sought the following documents: Horton Homes, on July 15, 1999, responded to the Britts' requests, as follows: The Britts, on August 30, 1999, filed a motion to compel discovery, citing numerous theories, supported by caselaw, as to why the requested documents were not beyond the scope of discovery and were reasonably calculated to lead to discoverable evidence. On September 2, 1999, Horton Homes stated in a one-page response that "they stand behind their previous discovery responses and objections, and request a full hearing on all issues presented in [the plaintiffs'] Motion." On October 14, 1999, the court held a hearing on the motion to compel. After the hearing, but on the same day, the court directed Horton Homes to produce the requested documents. The order of October 14, 1999, reads: (Emphasis added). On October 27, 1999, Horton Homes moved to reconsider the October 14 order; in that motion, for the first time, it offered additional reasons why it considered the requests for production to be beyond the bounds of discovery. In addition to asserting that requests 2, 3, and 40 were "beyond the scope of discovery [and are] not reasonably calculated to lead to the disclosure of admissible evidence," Horton Homes also asserted, for the first time, that those requests were "overly broad, unduly burdensome, [and] not reasonably limited in time, scope and geographical area." The trial court denied Horton Homes' motion to reconsider, on October 29, 1999. By the order of October 14, 1999, Horton Homes' response to the Britts' requests for production was due within 21 days from that date, i.e., no later than *539 November 4, 1999. However, Horton Homes failed to respond by November 4, 1999. On November 19, 1999, Horton Homes moved for a protective order pursuant to Rule 26(c), Ala. R. Civ. P. In its motion for a protective order, Horton Homes articulated the same two arguments it had presented in its motion for reconsideration. However, in further support of its motion, and for the first time, Horton Homes submitted an affidavit from Jimmy Holton, a Horton Homes representative, stating that production of the documents sought by requests 2, 3, and 40 would be unduly burdensome because of the large number of files Horton Homes would have to search in order to comply, and the manner in which those records were kept. The trial court denied the motion for a protective order. Horton Homes filed this petition for the writ of mandamus. A writ of mandamus will be "issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala.1993). "The Alabama Rules of Civil Procedure vest broad discretion in the trial court to control the discovery process and to prevent its abuse; that discretion is not unlimited, however, and mandamus is the proper means of review to determine whether the trial court has abused its discretion." Ex parte Thomas, 628 So. 2d 483, 485 (Ala.1993) (citing Ex parte Nissei Sangyo America, Ltd., 577 So. 2d 912 (Ala. 1991)). "`An appellate court may not decide whether it would, in the first instance, have permitted the prayed for discovery. Furthermore, it is unusual to find abuse of discretion in these matters.'" Ex parte Marsh & McLennan, Inc., 404 So. 2d 654, 655 (Ala.1981) (quoting Assured Investors Life Ins. Co. v. National Union Assocs., Inc., 362 So. 2d 228, 232 (Ala.1978), citing Swanner v. United States, 406 F.2d 716 (5th Cir.1969)). The discovery requests at issue here were made by the Britts pursuant to Rule 34, Ala. R. Civ. P. We do not reach the merits of Horton Homes' arguments regarding the discoverability of the materials sought by those requests because we conclude that Horton Homes waived its right to seek mandamus review by failing to move for a protective order pursuant to Rule 26(c) within the time allowed for compliance with the trial court's order compelling production. In Ex parte Reynolds Metals Co., 710 So. 2d 897 (Ala.1998), this Court determined that orders compelling discovery are reviewable by mandamus petition only if the objecting party has properly moved for a protective order pursuant to Rule 26(c), Ala. R. Civ. P. In Reynolds Metals, the plaintiff sued Reynolds Metals, alleging that it had negligently caused him to suffer asbestos-related injuries while he was employed by Reynolds Metals in 1965. 710 So. 2d at 898. In relation to these claims, the plaintiff requested, through the discovery rules, "all documents and information Reynolds had in its possession concerning the hazards of asbestos." Id. Reynolds Metals objected to these requests on the ground that they were overly broad and unduly burdensome. Id. The plaintiff moved to compel discovery, and Reynolds Metals further objected. Id. The trial court held a hearing on the motion to compel; after the hearing, the court ordered Reynolds Metals to produce, within 21 days, numerous documents located at its many facilities throughout the world. Id. at 899. Without moving for a protective order, but before the 21 days had expired, Reynolds Metals filed a mandamus petition with this Court, asserting that the trial court had abused its discretion. Id. This Court held that the petition was prematurethat a writ of mandamus will issue only when there is no other adequate remedy, and Reynolds Metals had not pursued its remedy available *540 through requesting a protective order from the trial court. Id. The running of the 21-day period had been stayed because of the filing of the mandamus petition. This Court dissolved the stay and denied the writ, indicating that Reynolds Metals could go back to the trial court and request a protective order before the expiration of the 21 days, and then, if the Court denied it, Reynolds Metals could thereafter petition this Court for mandamus review. Id. Simply put, Reynolds Metals stands for the proposition that a party dissatisfied with the trial court's ruling on a motion to compel discovery must first make a timely motion for a protective order, so as to create a record to support the essential allegation that the petitioner has no other adequate remedy. Id. The motion for a protective order pursuant to Rule 26(c) and any subsequent mandamus petition must be filed within the time period set for production by the trial court in its order compelling discovery. See Reynolds Metals, 710 So. 2d at 899 ("Under Rule 26(c), Ala. R. Civ. P., Reynolds may move the trial court for a protective order at any time before the expiration of the 21-day period prescribed in the order compelling discovery."); see, also, Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 413 (M.D.N.C.1991) (interpreting parallel Rule 26(c), Fed.R.Civ.P., to require that a motion for a protective order be filed in a timely or seasonable manner); Wang v. Hsu, 919 F.2d 130, 131 (10th Cir.1990) (stating that a motion for a protective order is timely if made before the date set for the discovery); United States v. International Bus. Machs. Corp., 70 F.R.D. 700, 701 (S.D.N.Y.1976) ("Such motions under Rule 26(c) must be served before the date set for production."); 8 C. Wright et al., Federal Practice and Procedure § 2035 (1994); Rule 26, Ala. R. Civ. P., cmt. (discussing the federal rule upon which Alabama Rule 26(c) was modeled and citing Wright & Miller, Federal Practice and Procedure § 2035). The trial court's October 14, 1999, order allowed Horton Homes 21 days to comply with the plaintiffs' discovery requests. Although Horton Homes filed a motion to reconsider on October 27, 1999, this motion was denied by the trial court on October 29, 1999, and, therefore, did not stay the running of the 21 days. Thereafter, November 4, 1999, the 21st day, came and went without the required production. Horton Homes finally filed a motion for a protective order on November 19, 1999, more than two weeks after the trial court's 21-day period had expired. By not moving for a protective order within the 21-day period, Horton Homes waived its right to a protective order under Rule 26(c); because it waived its right to a protective order, it cannot now show a clear legal right to the relief sought, which is a prerequisite for the issuance of a writ of mandamus. See Ex parte United Serv. Stations, Inc., 628 So. 2d 501 (Ala.1993). The stay of discovery previously issued by this Court is dissolved, and the writ is denied. STAY DISSOLVED; WRIT DENIED. HOOPER, C.J., and MADDOX, COOK, and JOHNSTONE, JJ., concur.

May 26, 2000

6ef548f8-4252-488e-86eb-f92cc5f5453c

Southern Energy Homes, Inc. v. Gary

774 So. 2d 521

1972290

Alabama

Alabama Supreme Court

774 So. 2d 521 (2000) SOUTHERN ENERGY HOMES, INC. v. Nathaniel GARY, Sr. 1972290. Supreme Court of Alabama. May 26, 2000. *522 John Martin Galese, Jeffrey L. Ingram, and David A. Norris of John Martin Galese, P.A., Birmingham, for appellant. Garve Ivey, Jr., and Allison Shelley of Ivey & Ragsdale, Jasper, for appellee. LYONS, Justice. Southern Energy Homes, Inc. ("Southern Energy"), appeals from the trial court's order denying its motion to compel arbitration of claims made against it in a lawsuit filed by Nathaniel Gary, Sr. We reverse and remand. On February 20, 1996, Gary purchased a mobile home from Blue Ribbon Homes, Inc., doing business as Tuscaloosa Home Center. That mobile home had been manufactured by Southern Energy. Bank America Housing Services provided the financing necessary for Gary to purchase the mobile home. In order to complete *523 the purchase transaction, Gary executed three contracts, each of which contained an arbitration provision. Gary and a representative of Blue Ribbon executed a sales contract. That document is entitled "A Contract Between Blue Ribbon Homes, Inc. and Nathaniel Gary, Sr. (Purchaser)"; it contains the following clause: (Capitalization in original.) The sales contract also contained the following statement in which Gary acknowledged that Southern Energy had provided a warranty on the home and that he had received that warranty: (Capitalization in original.) Gary alleges, however, that he did not receive a copy of the written warranty until the mobile home was delivered. Gary and a representative of Blue Ribbon also executed a document entitled "Retail Installment Contract, Security Agreement, Waiver of Trial By Jury and Agreement to Arbitration or Reference or Trial by Judge Alone." That document listed Gary as the "Buyer," Blue Ribbon as the "Seller," and Bank America as the "Creditor," and it contained the following clauses: (Capitalization in original.) The following language appears above Gary's signature on this document: (Capitalization in original.) This contract was assigned by Blue Ribbon to Bank America. Gary also executed a separate arbitration agreement with Blue Ribbon entitled "Arbitration Agreement Between Blue Ribbon Homes, Inc. and Nathaniel Gary, Sr." It provided that "[a]ny controversy or claim arising out of or relating to that contract or breach thereof between Blue Ribbon Homes, Inc. and Nathaniel Gary, Sr. (Purchaser) dated 2-20-96, shall be settled under common law arbitration, in accordance with the rules of the American Arbitration Association." This agreement also provided for the manner and location of any arbitration. Southern Energy extended a written warranty on the mobile home purchased by Gary. A copy of the warranty Southern Energy says it provided appears in the record on appeal. The following text appears on the pages of that warranty numbered 4 and 5 (pages 1-3 are not included in the record): We note that the warranty is a form document and that nothing on the copy contained in the record indicates that it is the document that was provided to Gary. On January 8, 1998, Bank America sued Gary, alleging that Gary owed money pursuant to the retail installment contract and that Gary was unlawfully detaining and possessing the mobile home. In response, Gary filed an answer to the complaint, a counterclaim against Bank America, and what he designated as a third-party complaint against Southern Energy and Blue Ribbon.[1] Gary alleged that the mobile home he had purchased contained several defects and that he had complained about the defects to Southern Energy and Blue Ribbon, but that Southern Energy and Blue Ribbon had failed to remedy the defects; that Southern Energy and Blue Ribbon had misrepresented to him that the mobile home was new, had never been damaged, and was built with quality construction and quality materials; that Southern Energy had a practice of refusing to honor its warranties, but that Blue Ribbon had suppressed this practice from him; that Southern Energy had a practice of manufacturing homes with defects and concealing those defects with paneling and carpet, but that Blue Ribbon had suppressed this practice from him; that Southern Energy and Blue Ribbon had misrepresented to him that he was purchasing a quality home and that they would provide service on the home pursuant to warranties; that Blue Ribbon was unjustly enriched when it removed wheels and axles from the home without compensating him; and that Southern Energy and Blue Ribbon had negligently hired, trained, supervised, and retained their employees. *526 Gary's counterclaim included allegations of civil conspiracy, the tort of outrage, theft by deception, and money had and received, as well as a request to be allowed to pursue a class action on behalf of all persons who had purchased homes manufactured by Southern Energy.[2] Gary also alleged that the arbitration clauses in the contracts he signed had been suppressed from him and that the contracts were void for lack of mutuality. Gary's counterclaim included other allegations against Bank America and Blue Ribbon that are not pertinent to this appeal.[3] Southern Energy, Blue Ribbon, and Bank America filed motions to compel arbitration of Gary's claims against them. After extensive briefing by all parties, the trial court granted Blue Ribbon's motion to compel arbitration and denied the motions to compel arbitration filed by Southern Energy and Bank America. Only Southern Energy appeals. Southern Energy argues that Gary is bound by the arbitration provisions contained in its written warranty, and that, based upon those warranty provisions, the trial court erred in denying its motion to compel arbitration. In the alternative, Southern Energy argues that it is entitled to compel Gary to arbitrate his claims against it based upon the documents Gary signed during the course of purchasing his mobile home. We first address Southern Energy's argument that the sales contract between Gary and Blue Ribbon, the retail installment agreement between Gary and Bank America, and/or the arbitration agreement between Gary and Blue Ribbon entitle Southern Energy to compel arbitration. The sales contract contains an arbitration clause that is quite limited. It requires that "any complaint between the parties" be settled by arbitration. The "parties" are Gary, as purchaser, and Blue Ribbon, as seller. This contract does not contain language such as that referring to relationships resulting from the contract, as was the case in the contract this Court reviewed in Ex parte Isbell, 708 So. 2d 571 (Ala.1997). Even with the language in the contract we reviewed in Isbell, we concluded that the arbitration provisions in contracts between mobile home purchasers and a dealership were not broad enough to include claims against the manufacturer. Southern Energy is not entitled to compel arbitration based upon the sales contract, which clearly is applicable only to Gary and Blue Ribbon. The scope of the arbitration clause in the retail installment contract is somewhat broader than the scope of the clause in the sales contract. The retail installment contract is between Gary, as buyer, and Blue Ribbon, as seller, with Bank America specifically named as the assignee of the contract. The arbitration clause contained in the retail installment agreement requires arbitration of "[a]ny controversy or claim between or among you and I [sic] or our assignees arising out of or relating to this contract." (Emphasis added.) Southern Energy, however, as the manufacturer of the mobile home, is not the assignee of Gary, Blue Ribbon, or Bank America. The United States District Court for the Middle District of Alabama reviewed identical language in Wilson v. Waverlee Homes, Inc., 954 F. Supp. 1530 (M.D.Ala.), aff'd, 127 F.3d 40 (11th Cir.1997) (table), and concluded that an entity, such as Southern Energy, that is neither a party to the contract nor the *527 assignee of any party, is not entitled to compel arbitration based on that particular contract language. We find the reasoning of the United States district court persuasive, and conclude that Southern Energy is not entitled to compel arbitration based upon the retail installment contract. The separate arbitration agreement is, likewise, of no assistance to Southern Energy. The arbitration agreement, like the sales contract, is applicable to the parties who executed it, namely, Gary as the buyer and Blue Ribbon as the seller. This language does not reach the manufacturer, and, therefore, Southern Energy is not entitled to compel arbitration based upon the arbitration agreement between Gary and Blue Ribbon. See Isbell, supra. After reviewing all of the applicable documents, we conclude that Southern Energy, a nonsignatory as to all three contracts discussed above, is not entitled to compel Gary to arbitrate his claims against it based upon the contractual terms contained in those documents. See First American Title Ins. Corp. v. Silvernell, 744 So. 2d 883 (Ala.1999). Nevertheless, Southern Energy also argues that it is entitled to compel arbitration because, it says, Gary's claims against it are inextricably intertwined with his claims against Blue Ribbon and the trial court has granted Blue Ribbon's motion to compel arbitration. In Ex parte Napier, 723 So. 2d 49 (Ala.1998), we addressed the arbitrability of a party's claims against nonsignatories to an arbitration agreement when the party's claims included conspiracy allegations. Like the nonsignatory defendants in Napier, Southern Energy contends that the plaintiff's claims against it are so "intimately founded in and intertwined with" his claims against another defendant, a defendant that is entitled to arbitration, that all of the claims are subject to arbitration. Southern Energy relies on Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir.1993), cert. denied, 513 U.S. 869, 115 S. Ct. 190, 130 L. Ed. 2d 123 (1994) (quoting McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir.1984)). In Med Center Cars, Inc. v. Smith, 727 So. 2d 9 (Ala.1998), we examined the question whether claims against nonsignatories were subject to arbitration. Like Southern Energy, the nonsignatory defendants in Med Center Cars argued that the scope of the arbitration agreement was broad enough to encompass the claims against them and that the plaintiffs' allegations of conspiracy compelled the arbitration of intertwined claims. However, we concluded in Med Center Cars that the language of the arbitration agreement was not broad enough to encompass claims against nonsignatories and that the plaintiffs' conspiracy claims, which alleged generally that a combination of defendants had conspired to violate Alabama law, had not been developed sufficiently to allow us to determine which defendants, if any, had conspired against the plaintiffs. Moreover, in Med Center Cars, some of the defendants against whom conspiracy allegations were made were not entitled to compel arbitration of the plaintiffs' claims against them. In that case, we said, it was possible that the plaintiffs' conspiracy claims could have involved only defendants who were not subject to arbitration. We are presented with a different situation in the case now before us. Even though the arbitration clauses discussed above are not broad enough to encompass Gary's claims against Southern Energy, we conclude that Gary's claims against Blue Ribbon, a signatory, and those against Southern Energy, a nonsignatory, are sufficiently intertwined that all claims must be arbitrated. In this case, the claims relate primarily to conduct of Southern Energy as to which Blue Ribbon is alleged to be a coconspirator, and, as we read the counterclaim, all of Gary's conspiracy *528 allegations involve Blue Ribbon to some extent. In his counterclaim, Gary states: Gary also alleges that both Blue Ribbon and Southern Energy made fraudulent misrepresentations to him and suppressed material facts from him. For example, his misrepresentation count states: Gary's suppression count states: Unlike the general conspiracy allegations in Med Center Cars, which did not identify a specific defendant who was subject to arbitration and who was alleged to have been involved in the conspiracy, and in which there were some defendants who were not subject to arbitration, the counterclaim in this case makes specific allegations of conspiracy against Blue Ribbon, an entity clearly subject to arbitration, in addition to the allegations against Southern Energy. Therefore, this case is more like Ex parte Napier, and we conclude that Gary's claims against Southern Energy are closely intertwined with the claims against Blue Ribbon, a party that is subject to arbitration, and that the connection is sufficient to subject all of the claims against Southern Energy to arbitration. See Ex parte Dyess, 709 So. 2d 447 (Ala.1997). Because we conclude that Gary's claims against Southern Energy are inextricably *529 intertwined with his claims against Blue Ribbon, and, therefore, that arbitration of his claims against Southern Energy is appropriate, we need not address Southern Energy's argument that it is entitled to compel arbitration on the basis of the arbitration clause contained within its written warranty. We now turn to Gary's arguments that none of the arbitration clauses should be enforceable against him because, he says, he did not make a knowing, willing, or voluntary waiver of his right to a trial by jury; the clauses do not inform him of pertinent information about the arbitration process; and the clauses are contracts of adhesion.[4] This Court has addressed all of these arguments at length in previous cases and has found them unavailing. See Ex parte McNaughton, 728 So. 2d 592 (Ala. 1998), cert. denied, 528 U.S. 818, 120 S. Ct. 59, 145 L. Ed. 2d 52 (1999); Napier, supra; Ex parte Parker, 730 So. 2d 168 (Ala.1999); and Green Tree Fin. Corp. of Alabama v. Wampler, 749 So. 2d 409 (Ala.1999). Considering the documents together, we conclude that they clearly pointed out that a purchaser executing them would be waiving the right to a trial by jury and adequately informed the purchaser about the arbitration process. Gary also argues that the clauses are unconscionable.[5] However, Gary's affidavit states only that he has a 10th-grade education, that he did not know the arbitration clauses existed until his attorney informed him about them, that no one at Blue Ribbon advised him of the existence of the arbitration clauses and what they meant, that he does not know what arbitration is, and that he was given nothing in exchange for being required to sign an arbitration provision. Gary had the burden of proving that the arbitration clauses were unconscionable. Napier, 723 So. 2d at 53. He did not present substantial evidence that would support a finding that they were. See Napier, Parker, and Wampler, supra. Therefore, we conclude that the arbitration clauses are enforceable as to Gary. The trial court erred in denying Southern Energy's motion to compel arbitration. The order denying that motion is therefore reversed, and the cause is remanded.[6] REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., concurs in part and dissents in part. JOHNSTONE, Justice (concurring in part and dissenting in part). I concur with the main opinion except that I respectfully dissent from the absolute reversal of the trial court's order denying Southern Energy's motion to compel arbitration, inasmuch as, in my opinion, we should only conditionally reverse the trial court's order. I think our judgment should read as follows: "The order of the trial court denying Southern Energy's motion to compel arbitration shall be reversed and the trial court instructed to grant the motion unless, within 21 days following the issuance of our certificate of judgment in *530 this cause, the plaintiff shall dismiss the intertwined claims against Blue Ribbon; but, if the plaintiff shall timely dismiss the intertwined claims against Blue Ribbon, then the order of the trial order denying Southern Energy's motion to compel arbitration shall stand affirmed." [1] The portion of the pleading that Gary designated as a third-party complaint should properly be designated as a counterclaim with Southern Energy and Blue Ribbon joined as additional parties defendant pursuant to Rule 13(h), Ala. R. Civ. P. In his pleading, Gary refers to himself as the "Counterclaimant" and to Southern Energy, Blue Ribbon, and Bank America as "Defendants." Rule 14 applies to contractual indemnification or instances where the defending party can stand in the shoes of the successful claimant and proceed against a third party. See Home Ins. Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 285 So. 2d 468 (1973). Because none of the parties has raised any issue regarding the designation of the parties, we also will refer to Southern Energy, Blue Ribbon, and Bank America as defendants. [2] Gary later dismissed his class-action allegations. [3] Gary alleged that premiums for insurance and an extended-service contract had been financed without his knowledge; that Bank America had represented to him that the total premiums collected had been paid to insurance companies, but that Blue Ribbon had retained a portion of the insurance and service-contract premiums; and that Bank America and Blue Ribbon had concealed from him Blue Ribbon's retention of those premiums. [4] Gary has not sought appellate review of the trial court's order granting Blue Ribbon's motion to compel arbitration; therefore, Gary's attacks on the enforceability of the arbitration clauses are limited to the issue of the arbitration of his claims against Southern Energy. [5] See note 4. [6] Justice Johnstone would remand to allow a period of time for Gary to dismiss his intertwined claims against Blue Ribbon. Gary's actions are not in any way restricted by a mandate from this Court compelling arbitration based on the record before us. We do not have before us any question regarding the effect of a subsequent dismissal with prejudice of all claims that gave rise to Southern Energy's right to insist on arbitration.

May 26, 2000

e2771eff-bec2-43c7-8264-2b9f97ec0c67

Reed v. BD. OF TRUSTEES FOR AL. STATE UNIV.

778 So. 2d 791

1981227

Alabama

Alabama Supreme Court

778 So. 2d 791 (2000) Joe L. REED et al. v. BOARD OF TRUSTEES FOR ALABAMA STATE UNVERSITY et al. 1981227. Supreme Court of Alabama. May 26, 2000. Rehearing Denied August 18, 2000. *792 J. Cecil Gardner and Kimberly J. Calametti of Gardner, Middlebrooks, Fleming & Gibbons, Mobile; James A. Anderson of Beers, Anderson, Jackson, Nelson, Hughes & Patty, Montgomery; George L. Beck of Beck & Byrne, P.C., Montgomery; and Robert D. Segall of Copeland, Franco, Screws & Gill, Montgomery, for appellants. Kenneth L. Thomas and Wendell J. Chambliss of Thomas, Means, Gillis, Devlin, Robinson & Seay, P.C., Montgomery, for appellees. PER CURIAM. Dr. Joe L. Reed, Patsy B. Parker, and Toreatha L. Johnson appeal from a judgment removing Parker and Johnson from the Board of Trustees for Alabama State University ("the Board"). We affirm the judgment insofar as it relates to Johnson, but we reverse it insofar as it relates to Parker, and we remand the cause. It appears that the claims originally made against Dr. Reed are moot; therefore, we grant the motion to dismiss the appeal insofar as it relates to him. This is an appeal from a judgment in a quo warranto action commenced on February 8, 1999, by the Board and the State of Alabama against Parker, Johnson, and others, challenging the right of Parker and Johnson to serve on the Board. The Board based its challenge on Ala.Code 1975, § 16-50-20(a), which provides: (Emphasis added.) The Board relies specifically on that provision prohibiting an "employee ... of any public postsecondary education institution" from serving on the Board. Parker and Johnson concede that they have had "working relationships" with postsecondary institutions coincident with their membership on the Board. In particular, Parker has served on the Board continuously since September 1, 1981. From March 23, 1987, to December 2, 1998, she had a "working relationship" with Southern Union State Community College ("Southern Union"), a "postsecondary education institution." Thus, she no longer has a "working relationship" with Southern Union. Johnson has served on the Board continuously since 1993. From September 26, 1996, until now, she has also worked with Alabama Southern Community College ("Alabama Southern"), a "postsecondary education institution," as a "project quest specialist." This action was tried without a jury. At trial, Parker and Johnson argued that they have never been "employees" of their respective postsecondary institutions within the meaning of § 16-50-20(a). The trial court disagreed, and found that Parker and Johnson each had served as an "employee" of a postsecondary institution, within the meaning of § 16-50-20(a), during her tenure on the Board. Apparently reasoning that this service disqualified them from any further service on the Board, it ordered them removed. Parker and Johnson appealed. Because the Board's case against Parker and Johnson turns on dissimilar circumstances, we shall address the case against each of those members in separate sections of this opinion.[1] Preliminarily, there is a question regarding the correct standard of review. Parker argues that the judgment must be reviewed de novo. The Board contends that the ore tenus rule applies. In Parker's case, however, we need notand do notchoose between the two standards, for we conclude that the trial court erred as a matter of law in removing Parker from the Board.[2] In entering its judgment against Parker, the trial court appears to have adopted one particular argument constructed by the Board. The Board states that argument as follows: Brief of Appellee, at 27-28 (emphasis added). On the basis of this reasoning, the Board regards as entirely irrelevant the fact that Parker has not had an association with Southern Union since December 2, 1998. In other words, it regards the fact that she is now eligible to serve on the Board as of no consequence. We reject this argument. Parker was qualified to serve on the Board when she began to serve and she is qualified now. In fact, her relationship with Southern Union had terminated two months before this action was commenced. But, according to the Board, neither the passage of time nor the change of circumstances has affected Parker's ineligibility. On its face, the Board's argument is that Parker, having sometime served on the Board in violation of § 16-50-20(a), may never again serve on the Board. Otherwise stated, Parker will never be able to purge herself of the ineligibility. Indeed, the Board has neither proposed, nor suggested, any remedial scenario. This is an unreasonable position and one that is not supported by the language of the statute. The Board is correct in noting that the statute does not say how ineligibility may be cured. That silence, however, does not support the Board's position, for the statute also does not say that ineligibility is incurable. But the statute does offer us a significant clue as to the intent of the Legislature in this matter. The Board's argument may be, although it is not expressly so stated: (1) that Parker was employed by Southern Union in 1996, the date of her last appointment to the Board; (2) that she was ineligible for appointment in 1996 because of her employment, and, therefore, (3) that her ineligibility will follow her until, and unless, she is reappointed at a time when she is not employed by a postsecondary education institution. If this is the Board's argument, the statute offers the following clue. Section 16-50-20(a) specifically states that employees of postsecondary education institutions are not "eligible to serve on the board." (Emphasis added.) It does not say that such persons are per se ineligible for appointment. In other words, the disability of which the Board complains does not attach to the appointment, but merely follows the Board member's service. It will not be presumed that the Legislature has employed "meaningless words." Elder v. State, 162 Ala. 41, 45, 50 So. 370, 371 (1909). Instead, "we presume that the Legislature knows the meaning of the words it uses in enacting legislation." Ex parte Jackson, 614 So. 2d 405, 407 (Ala. 1993). Had the Legislature intended the result urged by the Board, it might, for example, have said: "No ... employee or student of any public postsecondary education institution ... shall be appointed to the board." It did not do so, and this Court is not at liberty to rewrite the statute. In short, the Board has cited no authority for the position it urges, and we know of none. Such a disability may be cured through the severance of the disability-creating employment.[3] Consequently, we conclude that Parker's ineligibility to serve on the Board ceased on December 2, 1998, with the termination of her relationship with Southern Union. The trial court erred in removing her from the Board. As it relates to Parker, therefore, the judgment is reversed and this cause is remanded. Unlike the Board's case against Parker, its case against Johnson compels us to determine the proper standard of review. "The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses." Hall v. Mazzone, 486 So. 2d 408, 410 (Ala.1986). The rule applies to "disputed issues of fact," whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So. 2d 669, 672 (Ala.1995). The ore tenus standard of review, succinctly stated, is as follows: Raidt v. Crane, 342 So. 2d 358, 360 (Ala. 1977). Johnson insists that this Court must review the judgment de novo, because, she contends, the evidence was undisputed. We disagree with that contention. The ultimate factual issue, namely, whether Johnson was an "employee" of Alabama Southern, was in dispute. "Proof of a master and servant relationship is tested by the degree of control the alleged [employer] retains over the alleged [employee]." Gossett v. Twin County Cable T.V., Inc., 594 So. 2d 635, 639 (Ala.1992). "Where the alleged master retains merely the right to inspect the work as it progresses, in order to ascertain if it is completed according to plans or specifications, and the right to stop work improperly done, the master and servant relationship is not created." 594 So. 2d at 639 (emphasis added). "How the parties characterize the relationship is of no consequence; it is the facts of the relationship that control." Martin v. Goodies Distrib., 695 So. 2d 1175, 1177 (Ala.1997) (emphasis added). The burden of proving the existence of an employment relationship rests on the party asserting the relationship. Danford v. Arnold, 582 So. 2d 545, 547 (Ala.1991); Federal Land Bank of New Orleans v. Jones, 456 So. 2d 1, 10 (Ala. 1984); Johnson v. Shenandoah Life Ins. Co., 291 Ala. 389, 281 So. 2d 636 (1973). Moreover, "[t]his Court has, for many years, followed the rule stated in Birmingham Post Company v. Sturgeon, 227 Ala. 162, 149 So. 74 (1933)." Burbic Contracting Co. v. Willis, 386 So. 2d 419, 421 (Ala. 1980). In Sturgeon, this Court stated: 227 Ala. at 165, 149 So. at 76 (emphasis added). In this connection, the Board presented a document purporting to be the agreement under which Johnson was employed. It was styled: The letter stated in pertinent part: (Emphasis in original except where noted.) This letter was signed by Johnson and was dated September 26, 1996. The Board contends that the "president of Alabama Southern reserved the right of control over Johnson," which, it argues, is "unambiguously expressed in the Letter of Appointment." Brief of Appellees, at 20. The record also contains copies of Johnson's "W-2 Wage and Tax Statement" forms for 1997-98. According to these forms, she was paid $12,578.75 in 1997 and $13,200.39 in 1998. Regarding the services Johnson performed for Alabama Southern, she testified as follows: (Reporter's Transcript, at 74-76.) Johnson further testified that she does not "report to" Alabama Southern or work on the campus, but, instead, goes "directly" from home "to high schools [to] perform a service there." Also, she testified: (Reporter's Transcript, at 79-82.) In short, the record is replete with oral testimony, including the testimony of Donald Kelly, director of information services for the Department of Postsecondary Education, as well as documentary evidence, on this disputed issue. The weight to be accorded such testimony was a matter for the trial court. Thus, that court's factual conclusions are subject to the presumptions attendant upon the ore tenus standard of review. Under this evidence, we hold that the trial court's conclusion that Johnson was an employee of Alabama Southern was not "clearly erroneous and against the great weight of the evidence." Raidt v. Crane, 342 So. 2d 358, 360 (Ala. 1977). Johnson insists that, even if the trial court correctly held her to be ineligible to occupy her position on the Board, it erred in removing her forthwith. This is so, because, she contends, she should be able to cure her disability by voluntarily terminating her employment within a reasonable time. For the following reasons, we disagree with that contention. Superficially, Johnson's contention seems consistent with our holding in Part I of this opinion. However, the Board's case against Johnson differs from that against Parker in one important respect, namely, that Johnson still had a "working relationship" with a postsecondary education institution when the judgment in this case was entered. The dispositive question thus becomes whether the fact that Johnson was still employed by Alabama Southern at the time the trial court entered its judgment necessitates a result different from the one reached in Parker's case. We conclude that it does. This was a quo warranto action, and, consequently, it is subject to the provisions of Ala.Code 1975, §§ 6-6-590 to -604. In particular, it was subject to § 6-6-600, which provides in pertinent part: (Emphasis added.) Section § 6-6-600 is clear on its face and its application unavoidable: if, at the *798 time a defendant in a quo warranto action is "adjudged guilty of ... unlawfully holding... any office," she is, in fact, ineligible to hold such office, "judgment must be entered," thus vacating the office. The imposition of exclusion attaches at the time the judgment is entered. In other words, such a defendant may not cure her disability by terminatingpostjudgmenther disability-causing employment. Specifically, because Johnson was employed by Alabama Southern at the time she was adjudicated to be ineligible, she cannot now cure her disability by terminating her employment.[4] The trial court properly removed Johnson from the Board. As it relates to Johnson, therefore, the judgment is affirmed. The motion to dismiss the appeal as to Dr. Reed is granted. As to Johnson, the judgment is affirmed; as to Parker, the judgment is reversed; and the cause is remanded. The Board's objection to the sufficiency of the supersedeas bond filed in this case is overruled. MOTION TO DISMISS APPEAL AS TO DR. JOE L. REED GRANTED; OBJECTION TO BOND OVERRULED; JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; AND CAUSE REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. SEE, J., concurs in part and concurs in the result in part. SEE, Justice (concurring in part and concurring in the result in part). I concur in the result as to Part I, which reverses the judgment as to Parker and remands the cause. I concur in Part II, which affirms that portion of the trial court's judgment removing Johnson from the Board. I concur in the ruling on the motion to dismiss as to Dr. Joe Reed and in the ruling on the Board's objection to the supersedeas bond. [1] The claims against Parker and Johnson are the only claims to be addressed by this appeal. [2] Questions of law are not subject to the ore tenus standard of review. Walker v. Walker, 695 So. 2d 58, 59 (Ala.Civ.App.1997); Plus Int'l, Inc. v. Pace, 689 So. 2d 160, 161 (Ala. Civ.App.1996); see also First Mercury Syndicate, Inc. v. Franklin County, 623 So. 2d 1075, 1076 (Ala.1993); DeWitt v. Stevens, 598 So. 2d 849, 850 (Ala.1992). [3] This statement is subject to a caveat, which is addressed in Part II of this opinion. [4] Our holding in this part of the opinion is the caveat to which we referred in note 3. Unlike Johnson, Parker had terminated her employment relationship with the postsecondary education institution before the entry of the judgment in this case; hence the different result as to Parker.

May 26, 2000

8ad08cb7-365e-412e-892e-aee878735f40

Norfolk Southern Ry. v. Bradley

772 So. 2d 1147

1990022

Alabama

Alabama Supreme Court

772 So. 2d 1147 (2000) NORFOLK SOUTHERN RAILWAY COMPANY, INC. v. John BRADLEY. 1990022. Supreme Court of Alabama. June 2, 2000. *1149 Michael W. Ray, Turner B. Williams, and J. Clinton Pittman of Sadler Sullivan, P.C., Birmingham, for appellant. Michael D. Blalock of Blalock & Blalock, P.C., Birmingham, for appellee. HOOPER, Chief Justice. This is a Federal Employers' Liability Act ("FELA") case brought by John Bradley, an engineer for Norfolk Southern Railway Company, Inc. ("Norfolk Southern"), against his employer for damages based on injuries resulting from an accident that occurred while Bradley was working as a yard engineer. The accident occurred when Bradley was instructed by *1150 his supervisor, Ted Jenkins, to move his yard train along the track that he was presently on. However, that track was already occupied by another train, which was stationary. The train Bradley was moving struck the other train; Bradley was thrown from his seat in the engine. He contends that his train was moving at a speed of 7 to 10 miles an hour at the time of the collision, while Norfolk Southern contends the speed was only three to seven miles per hour. Bradley alleged that Norfolk Southern, through its agent Jenkins, negligently failed to determine whether Bradley's track was clear before ordering Bradley to move the train. Bradley also alleged that Norfolk Southern's negligence proximately caused him to incur a back injury that he says prevents him from working. Norfolk Southern denied liability, alleging that Bradley was contributorily negligent in regard to the cause of the accident. The jury returned a $700,000 general verdict in favor of Bradley. Norfolk Southern filed a "Motion for New Trial or in the Alternative, Motion for Judgment Notwithstanding the Verdict, or in the Alternative, Request for Remittitur of the Verdict." The trial court denied Norfolk Southern's alternative motions, after holding a hearing. The court entered a judgment on the verdict. Norfolk Southern appealed. We affirm. Norfolk Southern raises six issues. First, Norfolk Southern contends that the trial court erred in failing to grant its motions for a judgment as a matter of law. Norfolk Southern argues that Bradley's inability to return to work was not caused by the on-the-job accident. Instead, Norfolk Southern contends that Bradley has diabetes, high blood pressure, and a high cholesterol level and that these problems are the proximate cause of Bradley's inability to work. Norfolk Southern contends that it was entitled to a judgment as a matter of law because, it argues, Bradley admitted that his diabetes independently caused his economic losses and because, it says, Bradley could have returned, and in fact did return, to work under any number of "light-duty" assignments, including the job he was doing when he was injured. The standard of review applicable to a trial court's denial of a motion for a judgment as a matter of law is the same as that applicable to an order denying a motion for a directed verdict. Winn Dixie of Montgomery, Inc. v. Colburn, 709 So. 2d 1222, 1223 n. 1 (Ala.1998). K.S. v. Carr, 618 So. 2d 707, 713 (Ala.1993). Evidence is "substantial" if it is "of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). The evidence, viewed in the light most favorable to Bradley, creates a disputed question of fact as to the cause of Bradley's inability to work. The accident occurred on March 13, 1996, shortly before Bradley's shift was to end. Bradley testified that although his shoulder and jaw were sore he went home that day rather than going to a doctor. The next day, he said, he woke up in pain and telephoned his trainmaster, who sent him to see Dr. George E. Rudd at Carraway Industrial Medical Center. Dr. Rudd did not order an X-ray or an MRI test, but determined that Bradley needed only to take medication (Tylenol) for the pain. *1151 Dr. Rudd released Bradley to work; however, Bradley contends he was still in pain. On March 19, Bradley went to the emergency room at Baptist-Princeton Hospital, where he received an injection containing Novocaine for his back pain. Bradley was also given an 800-mg. dosage of Motrin for pain. Bradley then went to see his family physician, Dr. C. Michael Buchanan, who prescribed additional pain medication and muscle relaxers. Dr. Buchanan also gave Bradley a series of epidural shots and ordered physical therapy. He referred Bradley to Dr. Jeffrey G. Pirofsky for "work hardening." Dr. Pirofsky released Bradley to work, on May 2, 1996, after a "functional capacity evaluation" was performed. Bradley went back to work, but he contends that he experienced constant pain although he was taking his prescribed pain pills. Bradley had an exacerbation of his back pain on May 29, 1996, when trying to set the hand brake of an engine. He went to see Dr. Pirofsky again, and he continued to see Dr. Buchanan periodically in 1996 for his back pain and to obtain pain medication. In November 1996, Bradley was diagnosed with diabetes. He was treated with insulin shots and was prescribed Glucophage to control his diabetes. He returned to work in January 1997. In February, March, April, and June 1997, Bradley saw Dr. Jason R. Dyken at Kirklin Clinic. Dr. Dyken treated Bradley for both his diabetes and his back pain. Dr. Dyken prescribed the pain medication Ultram for Bradley's back pain. Bradley continued to work, but was still experiencing pain. Dr. Dyken referred Bradley to Dr. Winfield S. Fisher III, a neurosurgeon at the University of Alabama in Birmingham Hospital ("UAB"), who performed an MRI test. Dr. Fisher sent Bradley to Dr. Ron Headrick, at Kirklin Pain Clinic, in August 1997 for epidural blocks. The epidural blocks were repeated in August 1998. Dr. Headrick prescribed the pain medication Neurontin for Bradley's back pain. Before seeing Dr. Headrick, Bradley was sent by Dr. Fisher to see Dr. Victor S. Roth at UAB's Industrial Medical Clinic. In June 1997, Dr. Roth evaluated Bradley's condition and determined that Bradley was "disqualified from the position of locomotive engineer" because he was taking prescription medication that might affect his alertness and judgment and because he was an insulin-controlled diabetic. Bradley did not return to work; he applied for disability benefits. In his application, Bradley wrote: "According to some FRA regulations, which prohibits on the job administering of the medications I'm taking, chronic back pain prohibits me from sitting any number of hours. I'm suffering from dizziness, drowsiness, diabetes complications of poor circulation and constant pain in my feet." Thereafter, Bradley began seeing Dr. Anna Davis for his back pain. Dr. Davis continued to medicate Bradley's back pain with Neurontin, which Bradley contends made him drowsy. On February 4, 1998, while driving, Bradley passed out because of his diabetes. His car crashed into a median, but Bradley contends he was not injured in the accident. The jury was presented with evidence indicating that as a result of the train accident Bradley suffered from back pain for which he was prescribed pain medication that affected his alertness and judgment. The jury was also presented with evidence indicating that Bradley suffered from diabetes-related problems, including dizziness. Therefore, a genuine question of fact existed regarding the proximate cause of Bradley's inability to return to work. Bradley presented substantial evidence from which a jury could conclude that the medication Bradley was prescribed to relieve the pain resulting from the back injury prevented him from working. Therefore, the trial court properly denied Norfolk Southern's motions for a judgment as a matter of law. Norfolk Southern argues that the trial court erred in refusing to submit a *1152 special-verdict form to the jury. Norfolk Southern contends that a special-verdict form was required because this was a complex case. The special-verdict form proffered by Norfolk Southern would have permitted the jury to apportion damages between the on-the-job accident and the preexisting and unrelated illnesses that independently would have caused Bradley to miss work. In the order denying Norfolk Southern's motion for a new trial, the court stated that the proposed verdict form was "unduly confusing and would have been susceptible to misinterpretation or conjecture." The proposed special-verdict form set forth seven questions to be answered by the jury. Question 6 asks: "What amount do you find, without any reduction for any negligence which you may find on the Plaintiff's part, will fairly and adequately compensate the Plaintiff for the injury he received?" Question 7 asks: "What percentage of the damages determined in Question No. 6 above is attributable to a pre-existing condition or to the Plaintiffs previous or subsequent accidents?" Norfolk Southern contends that these questions would have allowed the jury to weigh the causes of Bradley's ability to work and to apportion the damages between the on-the-job accident and the illnesses that may have independently caused Bradley to miss work. The trial court properly refused Norfolk Southern's proposed verdict form, because it was confusing and misleading. Question 6 specifically asks the jury to assess the amount of damages that would fairly and adequately compensate Bradley for his injury. Then Question 7 asks the jury to assess a percentage of the amount of damages from Question 6 that are attributable to "a pre-existing condition or to the Plaintiff's previous or subsequent accidents." The questions are inconsistent and present an incorrect basis for determining damages. The questions would have asked the jury to determine the amount of damages Bradley was entitled to based on the on-the-job accident and then to assign a percentage of those damages as being attributable to another accident or medical condition. In addition, the trial court specifically charged the jury that Bradley could not recover for any other accident or illness that was not directly the result of the accident in question. Specifically, the trial court instructed: The jury was properly instructed that it could compensate Bradley only for injuries resulting from the train accident. The trial court did not err in refusing Norfolk Southern's proposed verdict form. Norfolk Southern next contends that the trial court erred in refusing to give instruction no. 17.20, from Alabama Pattern Jury Instructions: Civil (2d ed. 1993); this instruction related to mitigation of damages in FELA cases. Specifically, Norfolk Southern argues that, although the medications Bradley was taking made him "drowsy" and prevented him from working, Bradley made no attempt to mitigate his damages by exploring the question whether he could use other medications. Norfolk Southern states in its brief that it requested APJI 17.20 in a precharge conference that was not transcribed; however, Norfolk Southern did not submit this requested instruction along with the 60 written jury charges it submitted to the *1153 trial court. In addition, after the jury was charged, Norfolk Southern did not object to the trial court's failure to give this instruction. Thus, nothing in the record indicates that Norfolk Southern either requested the instruction or objected to the trial court's failure to give it. Rule 51, Ala. R. Civ. P., provides: (Emphasis added.) "By failing to object before the jury retires to deliberate, a party waives any error in the court's instructions." Adriatic Ins. Co. v. Willingham, 567 So. 2d 1282, 1282 (Ala.1990) (citations omitted). See also Marshall Durbin Farms, Inc. v. Landers, 470 So. 2d 1098 (Ala.1985) ("`A party waives any possible error as to a trial court's oral charge by failing to specifically object and to state grounds for the objection.'"). Norfolk Southern, by failing to object on the record to the trial court's failure to give APJI 17.20, waived any possible error. Norfolk Southern also contends that the trial court erred in permitting testimony regarding future wage loss, which it says was based on speculation and assumptions regarding how long the plaintiff might have worked. In addition, Norfolk Southern argues that the trial court should have instructed the jury that railroad retirement taxes would have to be deducted from any alleged future wage loss. Ted Johnson, an economist, testified at trial regarding Bradley's economic losses. Johnson testified that Bradley's future loss of income would be $209,000, assuming that Bradley would have worked until age 65. Bradley's attorney asked Johnson to "compute real quick [Bradley's] future loss" assuming that he could work until age 70. Johnson testified that he could not calculate it that quickly but that he could give a "ballpark figure," which he said would be almost double the original figure of $209,000. Defense counsel then objected "to ballpark," but the trial court allowed Johnson to answer that Bradley's future loss would be approximately $375,000 if he worked to age 70. Norfolk Southern contends that the testimony regarding future wages was purely speculative because, it says, no evidence was presented to indicate that Bradley would have continued to work until age 65, much less that he would have worked until age 70. However, Norfolk Southern did not object to the introduction of the future-wage testimony. Norfolk Southern objected only to Johnson's giving a "ballpark" figure. Therefore, Norfolk Southern has waived any error in permitting testimony regarding future wages. Norfolk Southern also argues that Johnson's calculations failed to take into account the "Tier 1" and "Tier 2" taxes that would be taken out of Bradley's future railroad pay under the Railroad Retirement Act of 1974. However, Norfolk Southern did not object to Johnson's failure to deduct for these taxes. In addition, during cross-examination, Norfolk Southern, in questioning Johnson, used a graphic showing Bradley's wages after deductions for federal, state, and Tier 1 and Tier 2 taxes, as well as deductions for Medicare tax and union dues. Therefore, the jury had the opportunity to consider those taxes. During redirect examination, Bradley's attorney questioned Johnson regarding *1154 the Tier 1 and Tier 2 taxes and Johnson testified that these taxes are retirement-benefit concepts that should not be considered in calculating future losses. Norfolk Southern had the opportunity to further question Johnson about the Tier 1 and Tier 2 taxes on re-cross-examination, but did not. Absent a timely objection by Norfolk Southern, this Court has nothing to review. Norfolk Southern next contends that the trial court erred in permitting testimony regarding "economic difficulty," after the court had issued a standing order prohibiting Bradley from presenting such evidence. Norfolk Southern argues that that testimony improperly permitted Bradley to appeal for jury sympathy. Before trial, Norfolk Southern filed a motion in limine requesting that Bradley not be permitted "to imply that he had difficult economic times or that he has had to cut back on his standard of living during the pendency of this lawsuit." The trial court granted this motion. Norfolk Southern contends that Bradley violated the ruling on the motion in limine because Bradley's counsel argued, and his wife testified, that after the wife had retired from her teaching job she was "forced" to take a part-time job in order to obtain insurance benefits and to supplement the family's income while Bradley was off work. However, Mrs. Bradley never testified that she was "forced" to work; she merely stated that she took a part-time job to supplement Bradley's salary after he was injured. Similarly, Bradley's counsel never stated that Mrs. Bradley was "forced" to go to work; he stated during closing arguments that she took a part-time job in order to obtain insurance for herself. Moreover, Norfolk Southern did not object either to Mrs. Bradley's testimony or to the arguments of Bradley's counsel. Therefore, Norfolk Southern waived any error. Finally, Norfolk Southern contends that the trial court should have ordered a remittitur or should have granted a new trial because, it argues, 1) the award of damages was based on improper calculations; 2) Bradley failed to give sufficient testimony regarding his alleged mental anguish or emotional distress to justify the award; and 3) Bradley was not shown to be permanently disabled or precluded from working for the railroad because of any on-the-job injury. "`Under the Federal Employers' Liability Act the question as to whether the employee's injuries are permanent is generally a question for the jury and the extent of damages in such an action is peculiarly one of fact for the jury.'" Illinois Central Gulf R.R. v. Russell, 551 So. 2d 960, 963 (Ala.1989) (quoting Louisville & N.R.R. v. Steel, 257 Ala. 474, 481, 59 So. 2d 664, 670 (1952)). In Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), this Court discussed the standards for reviewing a jury verdict on a claim that the damages award is excessive: 493 So. 2d at 1378-1379 (citation omitted). "[A] review of a jury verdict for compensatory damages on the ground of excessiveness must focus on the plaintiff (as victim) and ask what the evidence supports in terms of damages suffered by the plaintiff." Pitt v. Century II, Inc., 631 So. 2d 235, 239 (Ala.1993). Norfolk Southern contends that Bradley would have retired at age 62 and that the most he should have been awarded for his alleged economic losses would have been an amount based on his past wage loss up to the time of trial ($56,762.87) and a future wage loss of $73,915.82. Norfolk Southern also contends that, even according to Johnson's figures, Bradley's total economic loss was only $324,395; therefore, it argues, $375,605 of the jury's award must have constituted compensation for pain and suffering. Norfolk Southern contends that amount is excessive. Dempsey v. Phelps, 700 So. 2d 1340, 1342 (Ala.1997). The jury was presented with evidence from Bradley's expert, Johnson, indicating that Bradley's total economic loss was $324,395, based on an assumed retirement age of 65. Norfolk Southern presented its calculations of Bradley's economic loss, a loss of $130,678.69, based on a retirement age of 62. The determination of the proper amount of damages is a question for the jury. The jury returned a general verdict; therefore, we do not know how much of the $700,000 verdict was based on economic loss. However, Johnson's testimony was a sufficient basis for the jury to determine that Bradley's economic loss was $324,395. In addition, "[t]his Court has long held that `[t]here is no fixed standard for ascertainment of compensatory damages recoverable ... for physical pain and mental suffering' and that `the amount of such [an] award is left to the sound discretion of the jury, subject only to correction by the court for clear abuse or passionate exercise of that discretion.'" Daniels v. East Alabama Paving, Inc., 740 So. 2d 1033, 1044 (Ala.1999) (quoting Alabama Power Co. v. Mosley, 294 Ala. 394, 401, 318 So. 2d 260, 266 (1975)). There was much evidence in this case regarding the pain that Bradley incurred from his injury, as well as Dr. Davis's prognosis that Bradley will continue to have chronic back problems. "Jury verdicts are presumed correct, `especially where damages awarded are for pain and suffering.'" Daniels, 740 So. 2d at 1045 (quoting Coca-Cola Bottling Co. v. Parker, 451 So. 2d 786, 788 (Ala. 1984)). *1156 In its order denying Norfolk Southern's motion for a new trial or a remittitur, the trial court stated: "While the Court may well have [awarded] a different [amount] in this case, it cannot conclude that the jury's verdict was the result of passion, bias, corruption or other improper motives." The trial court is in the best position to decide whether a particular verdict is the result of bias, prejudice, or passion. However, reviewing this case on appeal, we must determine whether the verdict "shock[s] the conscience of this Court." Daniels, 740 So. 2d at 1049. This Court also might have awarded a different amount if this Court had been the fact-finder; however, we cannot conclude that the jury's verdict shocks the conscience of this Court. The jury verdict was not "flawed." The amount of damages was supported by the evidence, and the record does not indicate the verdict was the result of bias, prejudice, or passion. Therefore, the trial court did not err in denying Norfolk Southern's motion for a new trial or a remittitur. AFFIRMED. MADDOX, HOUSTON, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. COOK and SEE, JJ., concur in the result.

June 2, 2000

6b21b859-4e5f-4332-b5e0-c4680f041156

Cremeens v. City of Montgomery

779 So. 2d 1190

1971571

Alabama

Alabama Supreme Court

779 So. 2d 1190 (2000) Gary CREMEENS v. CITY OF MONTGOMERY. 1971571. Supreme Court of Alabama. June 30, 2000. Opinion Modified on Denial of Rehearing September 15, 2000. *1191 K. David Sawyer, Birmingham, for appellant. N. Gunter Guy, Jr., and Marc A. Starrett of Brannan & Guy, P.C., Montgomery, for appellee. Douglas L. Steele of Mulholland & Hickey, Washington, D.C., for amicus curiae International Ass'n of Fire Fighters. PER CURIAM. Gary Cremeens, formerly a firefighter for the City of Montgomery (the "City"), appeals from a summary judgment entered in favor of the City. At issue is whether Cremeens presented substantial evidence that the City, acting through Fire Chief R.W. Grier and Deputy Fire Chief J.L. Fulmer,[1] wrongfully terminated Cremeens's employment with the Montgomery Fire Department because of his membership in Montgomery Firefighters Association Local 1444 ("Local 1444"). Machen v. Childersburg Bancorporation, Inc., 761 So. 2d 981, 984 (Ala.1999). Moreover, "a court may not determine the credibility of witnesses on a summary judgment motion...." Phillips v. Wayne's Pest Control Co., 623 So. 2d 1099, 1102 (Ala.1993). *1192 In 1984, the City of Montgomery Fire Department hired Cremeens as a firefighter. Also in 1984, Grier was appointed chief of the Montgomery Fire Department. At the time Cremeens was hired, the fire department had in place a policy stating that each firefighter had to remain below a maximum allowable weight. The policy was to be applied equally to all personnel. Deputy Chief Fulmer was in charge of administering this policy. Each firefighter's maximum allowable weight was determined by means of a chart showing heights and corresponding weights. Each fire department employee was weighed at least once a month, but he or she could be weighed more frequently if the chief deemed it necessary. The department's manual provides the following sanctions for violating the weight policy: (C. 183.) (Emphasis added.) The department gives each employee suspended for violating the weight policy a 30-day grace period after each suspension within which the employee will be allowed to return to work if the employee's weight reaches an acceptable limit. The only means used to determine a firefighter's maximum allowable weight at the time of Cremeens's initial employment was the height-weight chart. Cremeens, a competitive bodybuilder, frequently worked out with weights. He maintains that these workouts, by increasing his muscle mass, tended to make him heavier than others of similar height and build. On July 3, 1985, Lt. B.R. Pilgrim ordered Cremeens to serve 10 consecutive night-watch shifts as a punishment for violating the department's weight policy. (C. 202.) On August 5, 1985, Cremeens weighed in at 209 pounds, 10 pounds over the maximum allowable weight of 199 pounds for a male of his height. On October 3, 1985, Cremeens weighed in at eight pounds over the maximum allowable weight. That same day, Cremeens discussed the height-weight chart with an undercover investigator for the City. Cremeens told the investigator that he did not think the department's weight policy was fair to bodybuilders and that he should not be fired merely because his weight exceeded the maximum allowable weight shown on the height-weight chart for someone of his height. He did not believe the heightweight chart was a fair way to determine a firefighter's maximum allowable weight because, Cremeens said, the chart failed to take into consideration how much of a person's body mass was fat and how much was muscle. According to Cremeens, the investigator placed a letter in Cremeens's personnel file concerning this discussion. On July 27, 1985, Lt. Pilgrim placed a letter that was highly critical of Cremeens in Cremeens's personnel file. In response to Lt. Pilgrim's letter, the members of Local 1444 called a special meeting at which the members were to take a vote in support of Cremeens. Before the meeting, Chief Grier called Pete Wethington, the president of Local 1444, and told Wethington that he had heard about the special meeting. He further told Wethington that if the members of Local 1444 voted to support Cremeens, the members of the union would "have to pay." Two days after a vote was taken to support Cremeens, Wethington was demoted from sergeant to firefighter and was transferred to another fire station. On October 10, 1985, about six weeks after Lt. Pilgrim had placed his letter in Cremeens's personnel file, Capt. J.B. Tillerson sent a similar *1193 letter concerning Cremeens to Deputy Chief C.R. Summerlin. On October 11, 1985, Local 1444 sued the City in federal district court, alleging that the City was engaging in intimidation, coercion, and retaliation against members of the union, including Wethington and Cremeens. Local 1444 alleged that the City had engaged in various activities, including the retaliatory demotion of some Local 1444 members, in response to the union's criticism of fire-department policies. The district court ruled in favor of the City. Local 1444 appealed. The United States Court of Appeals for the Eleventh Circuit vacated the district court's decision and remanded the case. On March 31, 1988, the parties entered into a settlement agreement, pursuant to which the firefighters could join Local 1444 and no one would be discharged or discriminated against because of membership in the union. Shortly after the settlement agreement was entered into, the City Council for the City of Montgomery adopted Ordinance No. 25 88, which provided that supervisory personnel in the Montgomery Fire Department could not belong to Local 1444. Although firefighters could join the union, they would not be promoted to any supervisory positions if they maintained their membership. At that time, Cremeens was serving as secretary of Local 1444. On March 7, 1986, Cremeens weighed in at 22 pounds over his maximum allowable weight. Deputy Chief Summerlin notified Cremeens that he had 30 days to bring his weight within the maximum allowable weight under the height-weight chart, or he would face disciplinary action. Approximately three weeks later, Cremeens was weighed again. Cremeens had lost 12 pounds; he weighed 209 pounds, which was within 10 pounds of his maximum allowable weight. On March 26, 1986, Capt. J.B. Tillerson sent a letter to Chief Grier stating that Tillerson thought that Cremeens was "thumbing his nose" at the Department's weight policy, and that his refusal to lose weight was creating a morale problem among those firefighters who were earnestly attempting to stay within the weight limits. (C. 199.) At some point in 1986, the fire department adopted the body-fat measurement as an alternative method for determining an employee's maximum allowable weight. Such a measurement indicates the percentage of fat in a person's body. Under this method, an employee could opt to have his or her body fat measured, rather than have the maximum allowable weight calculated by the height-weight chart. On October 3, 1986, Cremeens opted for the body-fat method. Cremeens's maximum allowable weight, taking his uniform into account, calculated using the body-fat method increased to 231 pounds. On August 21, 1989, Cremeens resigned from the fire department. Cremeens stated no reason for his resignation in his letter to the Montgomery Fire Department. On January 18, 1990, Cremeens asked Deputy Chief Fulmer to rehire him as a firefighter. Cremeens was not a member of Local 1444 when he asked to be rehired, and union membership was not discussed during Cremeens's meeting with Fulmer. Cremeens was found to be physically fit for the performance of the duties of a firefighter, and Chief Grier rehired him in March or April 1991. Cremeens was told when he was rehired that he would have to comply with the Department's weight policy, and Cremeens agreed to do so. Cremeens continued his bodybuilding, and he subsequently rejoined Local 1444. Cremeens asked that he be permitted to use the body-fat method for his weigh-ins, and in September 1991 he asked for a body-fat evaluation. On September 17, 1991, District Chief Hill was notified that Cremeens's maximum allowable weight under the body-fat method was 244 pounds. (C. 217.) On January 28, 1992, Cremeens was weighed at Auburn University at *1194 Montgomery ("AUM") using the body-fat method, and was found to weigh 242 pounds. Cremeens again asked to have his body-fat evaluated in March 1992. This time, Cremeens's maximum allowable weight was 248 pounds. (C. 220.) In September 1991, Cremeens signed a petition supporting a candidate for mayor who was running against the then mayor of Montgomery, Emory Folmar. Cremeens was called into the fire chief's office. According to Chief Grier, the conversation at that meeting was as follows: (C. 314.) When asked if he thought these comments were appropriate, Chief Grier explained that he "wasn't trying to tell [Cremeens] who to vote for or what to do, I was just giving him some advice." Cremeens was involved in fund-raising for Local 1444 at the time of this meeting, but according to Cremeens, the City forced him to stop these efforts. Also, Cremeens wrote a letter on behalf of Local 1444 stating that firefighters should be treated the same as policemen were treated in that they, too, should be given compensatory time off for time spent giving blood. Cremeens's first weight violation after he returned to the fire department in 1991 occurred on November 4, 1992. Cremeens was weighed, using the body-fat method, and was found to be three pounds over his maximum allowable weight of 248 pounds. Cremeens was suspended for five calendar days without pay for this violation (C. 222.) He did not appeal the suspension. Chief Grier informed Mayor Folmar of Cremeens's suspension by a memorandum dated November 13, 1992. Grier's memorandum noted that the present suspension was the first step in a three-step disciplinary process for firefighters "who are habitually overweight." (C. 229.) On August 4, 1993, Chief Grier sent a memorandum to all fire department personnel, reminding employees of the rank of lieutenant or above that they could not "belong to, affiliate with, and/or provide support to Local 1444 or any other labor union or labor organization or such similar association or organization, which has as its members rank and file Firefighters and/or Sergeants of the Montgomery Fire Department." (C.R. Exhibit 27.) On September 3, 1993, Cremeens was again determined to be overweight. Cremeens's maximum allowable weight at this time was 248 pounds; his actual weight was 253½ pounds. (C. 231.) Cremeens was suspended for 15 days, and he did not appeal the suspension. Deputy Chief Fulmer sent a memorandum to Chief Grier informing Grier of Cremeens's latest violation of the weight policy and of Cremeens's suspension. On November 23, 1993, Cremeens was sent to AUM to have his weight reevaluated by Dr. Hank Williford, using the bodyfat method. Cremeens's percentage of body fat at this time resulted in his being "overfat." Overfat exists when a person's body fat exceeds 20 percent for men 29 years old or younger or exceeds 24 percent for men 30 years old and older. When body fat exceeds the maximum allowable body-fat percentage, established by age, a maximum allowable weight cannot be established. (C. 180; 294.) Because Cremeens was considered "overfat" based on the body-fat calculation, he was again suspended for 15 days, this suspension beginning on December 3, 1993. After this third suspension, Cremeens was again given a 30-day grace period to get his weight within permissible limits. In January 1994, Cremeens was again sent to Dr. *1195 Williford for an evaluation of his body fat. Based on this evaluation, Dr. Williford determined that Cremeens's maximum allowable weight, taking his uniform into account, was 237 pounds.[2] At that time, Cremeens was the president of Local 1444 and had again begun fund-raising on behalf of Local 1444; he contends that this was the reason his maximum allowable weight was decreased. In response, the City points out that Dr. Williford devised the mechanics for the body-fat measurement and that Dr. Williford, not Deputy Chief Fulmer, calculated the percentage of a firefighter's body fat, on which the determination of his or her "maximum allowable weight" was based. Chief Hadden, Cremeens's district chief, weighed Cremeens at his monthly weigh-in on June 6, 1994. The other men in the station had been weighed during the earlier shift, but Cremeens was on leave during that shift. When Cremeens returned for duty on the following shift he was sent on detail to Station 12, where Chief Hadden weighed him. Cremeens weighed 240 pounds, three pounds over his maximum allowable weight. This was Cremeens's third violation of the weight policy within a 12-month period. Therefore, in accordance with the sanctions in the department's manual, Deputy Chief Fulmer recommended to Chief Grier that Cremeens be dismissed. On June 9, 1994, Cremeens was given a hearing before Chief Deputy Fulmer. Cremeens did not present any evidence or make any statements at the hearing. Because Cremeens had been found to exceed his maximum allowable weight 3 times within a 12-month period, Fulmer concluded that he had to recommend to Mayor Folmar that Cremeens be dismissed from the Montgomery Fire Department. In addition to the hearing before Deputy Chief Fulmer, Cremeens was also entitled to a hearing before James Buckalew, Mayor Folmar's administrative assistant. However, Cremeens refused to attend this hearing. The mayor is the City's appointing authority; as such, Mayor Folmar had the final authority on any termination within the Montgomery Fire Department. Mayor Folmar concurred in the decision to terminate Cremeens, and he was dismissed from the fire department. Cremeens appealed his termination to the Montgomery City County Personnel Board (the "personnel board"), which reviews personnel decisions made concerning city and county employees. At this stage Cremeens was afforded the following rights: the right to attend the personnel hearing unless he was excused by the personnel board; the right to be represented by counsel or by a representative of his choice; the right to subpoena a witness if done timely; the right to cross-examine and to impeach all witnesses appearing against him; the right to present affidavits, exhibits, and other evidence the personnel board deemed pertinent to the inquiry; and the right to argue his case. Cremeens did not testify during the personnel board hearing, and he did not present any evidence. Cremeens did briefly question members of the personnel board, and he answered some of the questions submitted to him by the personnel board. Cremeens commented on the Montgomery Fire Department's weight policy, and he argued that the body-fat test, as it was written, was not fair. The issues that Cremeens raised during the personnel board's hearing were limited to the Montgomery Fire Department's weight policy. He did not touch upon any issues involving Local 1444, including the freedom-of-speech and the freedom-of-association claims he later raised. *1196 On July 15, 1994, the personnel board advised Cremeens that it was upholding the City's decision to terminate his employment with the Montgomery Fire Department. Cremeens contends that because of his membership in Local 1444, the weight policy was applied inequitably, and that this inequitable application resulted in his termination. Cremeens presented evidence indicating that Chief Grier had exceeded the weight limit on several occasions but that he had never been disciplined. There was also evidence indicating that Chief Grier would not weigh certain firefighters on days when he believed they would be over their maximum allowable weight. For example, Firefighter James Conner testified that he was often told in advance on which day the firefighters would be weighed so that he could lose weight before weigh day. (C.R.400-01.) Firefighter Anthony Perkins testified that he was told one month that the fire department would not be weighing that month because a certain firefighter was overweight. (C.R. 427-28.) Firefighter Ron Howard was allowed to weigh without his shoes so that he would come within the maximum allowable weight. Cremeens argues that the real reason for his termination was his involvement with Local 1444 and not his violation of the department's weight policy. On February 20, 1996, Cremeens sued the City and Chief Grier and Deputy Chief Fulmer, in their official and individual capacities, under 42 U.S.C. § 1983, alleging that they had violated his freedom of speech; his freedom of association; and his right to equal protection. Cremeens contends that the City, acting through Chief Grier, Deputy Chief Fulmer, and Mayor Folmar, had a pervasive custom and practice of threatening, coercing, and intimidating firefighters to keep them from joining Local 1444. In a seven-count complaint, that he amended three times, Cremeens states the following claims: Because every claim alleged by Cremeens complains of wrongful termination, every claim was subject to the legal consequences of the prior review by the personnel board. Cremeens did not allege any claims, constitutional or otherwise, unrelated to his termination, which had been reviewed by the personnel board. The trial court dismissed Counts I and II, which claim that Cremeens was terminated because of a perceived disability, and those claims were not argued in the trial court. On May 5, 1998, the trial court entered a summary judgment in favor of the City as to all of Cremeens's remaining claims. The trial court entered a partial summary judgment in favor of Grier and Fulmer as to Cremeens's freedom-of-speech claim. The trial court denied the summary-judgment motion as to the remaining claims against Grier and Fulmer in their individual capacities, and held that they were not entitled to qualified immunity. Cremeens appeals only from the summary judgment in favor of the City. We affirm. 42 U.S.C. § 1983 provides: A municipality may not be held liable under 42 U.S.C. § 1983 on a theory of respondeat superior. Monell v. Department of Social Servs. of the City of New York, 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Scala v. City of Winter Park, 116 F.3d 1396, 1399 (11th Cir. 1997). "Instead, municipalities may only be held liable for the execution of a governmental policy or custom." Id. See Monell, 436 U.S. at 694, 98 S. Ct. 2018. Stated differently, a municipality may be held liable under § 1983 only if "`action pursuant to official municipal policy of some nature caused a constitutional tort.'" Jett v. Dallas Indep. School Dist., 491 U.S. 701, 709, 109 S. Ct. 2702, 105 L. Ed. 2d 598 (1989) (quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018). As the Monell Court explained, "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." 436 U.S. at 694, 98 S. Ct. 2018. Accord Morro v. City of Birmingham, 117 F.3d 508 (11th Cir.1997). Wayne v. Jarvis, 197 F.3d 1098, 1105 (11th Cir.1999). Board of County Comm'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 403-04, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997). "[O]nly those municipal officials who have `final policymaking authority' may by their actions subject the government to § 1983 liability." City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988) (plurality opinion) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986)). See also Church v. City of Huntsville, 30 F.3d 1332, 1341 (11th Cir.1994). However, as the United States Court of Appeals for the Eleventh Circuit observed in Scala: Id., 116 F.3d at 1401. (Emphasis added.) Cremeens argues that the question whether a municipal official has final policymaking authority is a question of fact to resolved by a jury. We disagree. Jett, 491 U.S. at 737, 109 S. Ct. 2702 (Some emphasis original; some emphasis added.) Cremeens argues in his brief to this Court that the record reflects that Chief Grier had a custom, policy, and practice of discriminating and retaliating against members of Local 1444, and specifically against Cremeens, as the president of Local 1444, and that it further reflects the City of Montgomery's acquiescence in, and support of, Grier's actions. Cremeens further argues that he has established, by substantial evidence, that the City violated his civil rights under 42 U.S.C. § 1983, when it terminated his employment with the Montgomery Fire Department. Therefore, Cremeens argues, the trial court erred in granting the City's motion for a summary judgment as to his § 1983 claim. Cremeens also argues that the trial court's finding, as a matter of law, that Chief Grier was not the final decisionmaker with the respect to the employment practices of the Montgomery Fire Department is not supported by the record. For this reason, Cremeens asserts that the court's summary judgment as to his § 1983 claim was improper. These arguments are without merit. While Cremeens's submission filed in opposition to the City's summary-judgment motion, viewed in the light most favorable to Cremeens, the nonmovant, demonstrates that the City, through the actions of Chief Grier, Deputy Chief Fulmer, and then Mayor Folmar had a pervasive custom and practice of threatening, coercing, and intimidating firefighters to keep them from joining Local 1444, there is little in the record indicating that the personnel board knew about, acquiesced in, or ratified those practices. Stated differently, without also establishing that the personnel board knew of such custom and practice, the fact that Cremeens established a retaliatory custom and practice on the part of the City, through the actions of Chief Grier, Deputy Chief Fulmer, and Mayor Folmar, is insufficient to defeat the City's summary-judgment motion. Thus, the fact that Cremeens did not touch upon the custom and practice of Chief Grier, Deputy Chief Fulmer, and Mayor Folmar as to members of Local 1444 during his hearing before the personnel board is significant in determining whether Cremeens established by substantial evidence that the personnel board knew or was aware of the actions of Chief Grier, Deputy Chief Fulmer, and Mayor Folmar toward members of Local 1444. *1200 Here, the personnel board's action demonstrates the existence of a meaningful administrative review that, under Scala, deprives Chief Grier and thus the City of "final policymaking authority." If Cremeens wanted to challenge the findings of the personnel board on the ground that the board is merely a "rubber stamp" for the actions of Grier and the City, he must present substantial evidence to that effect in opposition to the City's properly supported summary-judgment motion. Scala, 116 F.3d at 1402. This Court is unwilling to conclude that the absence of written findings by the personnel board is substantial evidence of "rubber stamping."[4] We acknowledge that Cremeens's burden is not a light one. See Vincent v. City of Talladega, 980 F. Supp. 410, 417 (N.D.Ala.1997)(wherein the court criticizes Scala on the basis that proof of a proscribed motive for a deliberative decision may be difficult). An inference to be drawn from the absence of findings of fact in the personnel board's letter to Cremeens is not substantial evidence that would generate a basis upon which to defeat a properly supported summary-judgment motion. The rule of law in Scala provides that a municipality is not liable for a claim under 42 U.S.C. § 1983 when final policymaking authority over a particular subject area does not vest in an official whose decisions are subject to meaningful administrative review. Id., 116 F.3d at 1401. Here, the personnel board upheld Cremeens's termination. Cremeens attempts, in his brief to this Court, to denigrate the role of the personnel board by asserting that "[t]here is no evidence of the decision-making process of the personnel board. The only document supporting the personnel board's decision is the letter informing Mr. Cremeens that the board `upheld' the Chiefs decision to terminate him." (Cremeens's Reply Brief at p. 18). Because the record contains no evidence that the personnel board was aware of, acquiesced in, or ratified the custom and practice of Chief Grier, Deputy Chief Fulmer, and Mayor Folmar toward members of Local 1444, Cremeens has failed to present substantial evidence that would create a genuine issue of material fact and thus provide a basis on which to deny the summary-judgment motion. Accordingly, the City's summary judgment as to Cremeens's § 1983 claim is due to be affirmed. We also affirm the City's summary judgment as to Cremeens's freedom-of-speech claim. The record reflects that Cremeens filed his initial complaint on February 20, 1996. Thereafter, Cremeens filed three amended complaints. Count III of his third amended complaint alleges that the City "targeted [him] for termination" in violation of his right to freedom of speech under the First and Fourteenth Amendments to the United States Constitution and the Alabama Constitution of 1901. Cremeens's freedom-of-speech claim against the City is based on his allegations that two of the City's employees, Chief Grier and Deputy Chief Fulmer, threatened, intimidated, and harassed him, and that they otherwise interfered with his freedom of speech. As the City points out in its brief to this Court, the trial court on May 5, 1998, entered a summary judgment in favor of Grier and Fulmer as to Cremeens's freedom-of-speech claim. The City also points out that Cremeens failed to appeal from the summary judgment in favor of Grier *1201 and Fulmer as to the that claim. Furthermore, a review of the notice of appeal and the docketing statement filed by Cremeens convinces us that Grier and Fulmer have not been made parties to this appeal. (C. 593; 594.) Therefore, the City argues that any claim that the City, through the conduct of Grier and Fulmer, violated Cremeens's right to freedom of speech has been waived. Based upon the particular facts of this case, we agree. Therefore, that part of the trial court's summary judgment in favor of the City on Cremeens's freedom-of-speech claim is also due to be affirmed. Cremeens raises several other claims against the City. Cremeens alleges that the conduct of the defendants that forms the basis of the allegations in the remaining counts (Counts III through VII) was intentional and/or wanton. Thus, whether by pleading or by implication, the claims in Counts III through VII alleges intentional torts. A municipality cannot be held liable for the intentional torts of its employees. See Ala.Code 1975, § 11-47-190; Gore v. City of Hoover, 559 So. 2d 163 (Ala.1990). Therefore, the trial court's summary judgment in favor of the City must also be affirmed as to Counts III through VII. For the foregoing reasons, the trial court's summary judgment in favor of the City of Montgomery is due to be affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] Cremeens does not appeal from the partial summary judgment entered in favor of Fire Chief R.W. Grier and Deputy Fire Chief J.L. Fulmer. [2] A firefighters' uniform weighs approximately six pounds. After a firefighter's weight has been determined using the body-fat evaluation, six pounds are added to the firefighter's weight, to account for the clothing he will be wearing when he is weighed at his station. The firefighter's weight, after the weight of his clothing has been added, is the "maximum allowable weight." [3] Sections 25-7-9, and 25-7-30, -31, -33, -35, and -36, Ala.Code 1975, and Ala.Code 1975, § 11-43-143, all pertain to the right to join, or to not join, a labor union or a labor organization. [4] We have noted that Cremeens's civil rights claims under 42 U.S.C. § 1983, are based, to a large extent, on the absence of written findings of fact in the Montgomery City and County Personnel Board's letter notifying him of his termination. Cremeens argues that this absence of findings indicates a lack of meaningful review. Cremeens included, as Exhibit 2 of his motion for reconsideration of the summary judgment entered in the City's favor, portions of the Board's manual entitled "Procedure For Conducting Hearings." Page 44 of this manual states that "[f]ormal findings of fact are not required." (Emphasis added.)

September 15, 2000

6e35356e-446c-44d9-aeda-572cdecda651

Allstate Ins. Co. v. Hugh Cole Builder, Inc.

772 So. 2d 1145

1990046

Alabama

Alabama Supreme Court

772 So. 2d 1145 (2000) ALLSTATE INSURANCE COMPANY, as subrogee of Russell Davis v. HUGH COLE BUILDER, INC., and Hugh Cole individually and d/b/a Hugh Cole Builder, Inc. 1990046. Supreme Court of Alabama. June 2, 2000. Donald R. Jones, Jr., of Balch & Bingham, L.L.P., Montgomery; Mark S. Grotefeld and Brad M. Gordon of Grotefeld & Denenberg, L.L.C., Chicago, Illinois; and Jeffrey R. Learned of Grotefeld & Denenberg, *1146 Bingham Farms, Michigan, for plaintiff. Micheal S. Jackson of Beers, Anderson, Jackson, Nelson, Hughes & Patty, P.C., Montgomery, for defendant. LYONS, Justice. The United States District Court for the Middle District of Alabama has certified to this Court the following question, pursuant to Rule 18, Ala. R.App. P.: The district court's order certifying its question provides the following background information: Russell Davis contracted with Hugh Cole Builder, Inc., and Hugh Cole (together referred to as "Cole") for the construction of a house. Sometime before December 22, 1996, the Davis family moved into the new house. On December 22, much of the Davis house and most of its contents were destroyed by a fire thought to be caused by defective installation of a fireplace. Cole had subcontracted the installation of the fireplace to Coston Plumbing Company ("Coston"), but had assisted Coston with its work. The Davis house was insured by Allstate Insurance Company. Allstate paid Davis $718,107.48 as compensation for property damage to the house and its contents; Allstate did not require Davis to pay a deductible. Allstate says that in exchange for the payment of the property claim it requested, and received from Davis, an agreement that it was subrogated to Davis's rights against any third party that may have been responsible for the fire. Davis then hired an attorney, who informed Cole and Coston that Davis would seek additional compensation from them for mental anguish. All parties entered into mediation; as a result of the mediation, Davis settled with Coston, but not with Cole. Allstate then sued Cole, seeking to recover the balance of the payment to Davis not covered by the settlement with Coston. That action is pending in the United States District Court for the Middle District of Alabama. Davis did not sue Cole. The statutory limitations period has now run against any claim for mental-anguish damages that Davis might have had against Cole. Cole moved for a summary judgment, contending that because Davis had not been made whole for all of the damage he sustained as a result of the fire, in that he had not received any compensation for mental anguish, Allstate's subrogation rights had not yet accrued under Alabama law. Cole relied on Powell v. Blue Cross & Blue Shield of Alabama, 581 So. 2d 772 (Ala.1990), and its progeny. The district court certified to this Court the question quoted above and reserved ruling on the motion for summary judgment until this Court either answers or declines to answer that question. In Powell, a plurality of this Court stated that the right of subrogation, whether equitable or contractual, does not arise until the insured has been fully compensated for the loss, or "made whole." After this present question had been certified to us, however, we decided Ex parte State Farm Fire & Casualty Co., 764 So. 2d 543 (Ala.2000), in which we overruled Powell and returned to the rule that "`while the doctrine of subrogation is of purely equitable origin and nature, it may be modified by contract.'" 764 So. 2d at 546 (quoting International Underwriters/Brokers, Inc. v. Liao, 548 So. 2d 163, 165-66 (Ala.1989)). In Liao, this Court had held that equitable principles denying subrogation until the insured has been made whole apply to all *1147 instances of subrogation except those in which a contract expressly provides otherwise. In certifying the question, the district court provided us a statement of certain facts; however, the district court stated in its certification order that the parties had not submitted to it a copy of the subrogation agreement. Consequently, Allstate's subrogation agreement with Davis is not before us. This Court has previously declined to decide cases when the record before us was incomplete. See, e.g., Ex parte Cassidy, 772 So. 2d 445 (Ala.2000); and Ex parte Brock, 734 So. 2d 998 (Ala. 1999). Nevertheless, under the circumstances here presented, we will answer this certified question, on the understanding that Allstate has correctly averred that its agreement calls for subrogation upon payment and our understanding that the district court has found, as the certified question indicates, the existence of a "subrogation agreement." The answer to this certified question turns on whether the consequences of the made-whole rule can be avoided in a setting where the insured has allowed the statutory limitations period to run and thereby has eliminated the prospect of any further claim that would make the insured whole. Because we held in Ex parte State Farm that an insurer may contract with its insured for subrogation to the insured's claims against a third-party tortfeasor even before the insured has been made whole, we conclude that whether the insured's unsatisfied claim is time-barred is simply irrelevant. In stating that conclusion, however, this Court is assuming, as indicated above, that the insurer had a contract with its insured that permitted that subrogation. If in fact there was no such contract, then the equitable rule concerning subrogation would govern. Assuming the existence of an agreement allowing Allstate to be subrogated without Davis's having been made whole, we conclude that Allstate would be entitled to subrogation. QUESTION ANSWERED. HOOPER, C.J., and MADDOX, HOUSTON, SEE, and BROWN, JJ., concur. COOK, JOHNSTONE, and ENGLAND, JJ., concur in the result. JOHNSTONE, Justice (concurring in the result). I concur only because the subrogor has waived, by laches, his right to complete his recovery by suing Cole and has, indeed, allowed the statute of limitations to run on such a suit. We should apply the doctrine of laches under the facts of this case and the facts of Ex parte State Farm Fire & Casualty Co., 764 So. 2d 543 (Ala.2000), in order to protect the rights of the subrogee even before the statute has run on the subrogor's claim. This method of protecting the subrogee would be fairer than allowing written contractual language in the insurance policy to override the madewhole doctrine categorically.

June 2, 2000

ced468ce-e509-4105-99fa-e3fd9bd832ad

Ex Parte Minor

780 So. 2d 796

1990235

Alabama

Alabama Supreme Court

780 So. 2d 796 (2000) Ex parte Willie Dorrell MINOR. (Re Willie Dorrell Minor v. State). 1990235. Supreme Court of Alabama. June 2, 2000. Rehearing Denied July 21, 2000. *797 Randall S. Susskind, Equal Justice Initiative of Alabama, Montgomery; and L. Dan Turberville, Birmingham, for petitioner. Bill Pryor, atty. gen., and A. Vernon Barnett IV, asst. atty. gen., for respondent. HOOPER, Chief Justice. Willie Dorrell Minor was convicted of the capital offense of "Murder when the victim is less than fourteen years of age," Ala.Code 1975, § 13A-5-40(15), for the death of his two-month old son, Ebious Jennings. The jury, by a vote of 12 to 0, recommended that Minor be sentenced to death. The trial court held a sentencing hearing and entered an order sentencing Minor to death. The Court of Criminal Appeals affirmed Minor's conviction and *798 sentence. Minor v. State, 780 So. 2d 707 (Ala.Crim.App.1999). We reverse and remand. The evidence at trial tended to show that Ebious died as the result of being severely beaten and shaken, and it also tended to show the following facts: On the night of April 15, 1995, Ebious's mother, Lakeisha Jennings, left Ebious and her two other children in Minor's care, in the apartment Lakeisha and Minor shared. Lakeisha left the apartment at approximately 9:35 to 9:40 p.m. to go to her mother's apartment, where she arrived approximately five minutes later. Lakeisha walked to a nearby store at about 10:00 p.m. and then walked back to her mother's apartment, where she stayed approximately 5 to 10 minutes. Lakeisha then walked home, the walk taking her another five minutes. Lakeisha testified that when she returned to the apartment, Ebious was lying on the bed; that Minor walked into the bedroom and picked Ebious up; and that Ebious was nonresponsive. At 10:55 p.m., Lakeisha telephoned her mother, Diana Pitts, who came over and drove Lakeisha, Minor, and Ebious to a hospital. Lakeisha testified that, in her haste to leave for the hospital, she hit her arm on the door frame. Lakeisha denied that she hit Ebious's head on the door frame, but admitted that Ebious had previously fallen off the couch in the apartment. Lakeisha also testified that they had to wait for Minor to get in the car to go to the hospital; that they repeatedly sounded the horn in an attempt to hurry him; and that they had almost left without him. Lakeisha's sister, Latia Pitts, accompanied their mother to the apartment after Lakeisha called. Latia testified that she saw Lakeisha with Ebious in her right arm and that Lakeisha hit her left arm on the wall and did not hit Ebious's head on the door frame as they were leaving. Dr. Elizabeth Cockrum, a pediatrician at DCH Regional Medical Center ("DCH"), testified that she had examined Ebious when he was two hours old and had performed a discharge examination two days after Ebious was born. Both examinations showed Ebious to be a healthy baby. Linda McGarroh, a registered nurse with the Tuscaloosa County Health Department, testified that she had performed a two-week checkup on Ebious and had found him to be a normal baby. Donna Richardson, another registered nurse with the Tuscaloosa County Health Department, testified that she had examined Ebious for his two-month checkup on April 12, 1995, three days before his death. At that time, Richardson determined that Ebious was fine. Dr. Steve Lovelady, an emergency-medicine physician at DCH, examined Ebious on the night of April 15, 1995. He testified that the examination of Ebious indicated bleeding in the retina; this bleeding, he said, was a sign that Ebious had been violently shaken. Dr. Lovelady testified that Ebious's injuries constituted the most severe case of shaken-baby syndrome he had ever seen. Ebious also had multiple rib fractures and at least two skull fractures. Dr. Lovelady testified that the severity of Ebious's injuries was magnified by the fact that an infant's bones are more bendable than those of adults and, therefore, are harder to break. Ebious also had internal bleeding. Dr. Lovelady testified that Ebious's injuries were too severe to have been caused by a fall from a sofa. Dr. Ashley Evans, a pediatrician on the staff at DCH, also testified regarding Ebious's injuries and demonstrated on a doll the amount of force needed to inflict the kind of injury involved in shaken-baby syndrome. Dr. Evans testified that Ebious suffered, at a minimum, three traumatic events, including severe shaking, a blow or blows to the head, and a blow or blows to the abdomen. Dr. Kenneth Warner, a physician with the Alabama Department of Forensic Sciences, performed the autopsy on Ebious. Dr. Warner testified that Ebious had 12 recently fractured ribs, internal bleeding caused by a torn liver and a torn spleen, *799 skull fractures, and trauma to the scrotum area. Dr. Warner indicated that the cause of Ebious's death was blunt-force trauma to the head and chest, in addition to the brain damage caused by shaking. He also testified regarding the amount of force necessary to cause the kind of fractures suffered by Ebious, stating that "it takes a tremendous amount of force to break a child's skull because a kid's skull will just give." Dr. Warner also demonstrated on a doll the amount of force needed to inflict the kind of injury caused by shaken-baby syndrome. Minor testified on his own behalf and admitted that on the day of Ebious's death he had smoked marijuana and had consumed several beers. Minor stated that when Lakeisha returned to the apartment she went into the bedroom where Ebious was and that Lakeisha and Ebious were alone for about 15 minutes. Minor testified that he heard Ebious crying and that when he went into the bedroom Lakeisha was changing Ebious's diaper. Minor testified that Lakeisha told him that Ebious was crying because he was sore from falling off the couch earlier that evening. Minor stated that he picked Ebious up; that he was not then breathing; but that when he laid Ebious down he felt a heartbeat and believed Ebious was okay. Minor testified that he was not in a hurry to get to the car to go to the hospital because he did not believe Ebious was seriously injured. Minor maintained that he did not kill Ebious and that he did not strike Ebious in any way. Minor stated that Lakeisha admitted during a telephone conversation with him that she had considered it her fault that Ebious had died because she believed his injuries were the result of falling off the couch. Minor also testified that he saw Ebious hit the door of the apartment as Lakeisha was leaving with him to go to the hospital. Minor admitted that he had prior convictions for assault in the second degree, for possession of cocaine, and for rape in the second degree. Minor also admitted that he had escaped from the county jail while he was awaiting trial on the capital-murder charge. During cross-examination, Minor admitted that he had given several inconsistent statements to law-enforcement officers. Minor testified that, although he did nothing intentionally or accidentally to cause Ebious's death, he had made up a story about an accident in order to get released on bond. Minor also testified that he made these inconsistent statements in an effort to protect Lakeisha. Minor contends that the trial court committed reversible error in failing to properly instruct the jury regarding his prior convictions1) that it could consider the evidence of Minor's prior convictions only for impeachment purposes and 2) that it could not consider the prior convictions as substantive evidence of Minor's guilt. Minor did not at trial request a limiting instruction regarding the evidence of his prior convictions and did not at trial object to the court's failure to give such an instruction. However, this Court's review of a death-penalty case allows us to address any plain error or defect found in the proceeding under review, even if the error was not brought to the attention of the trial court. Rule 39(a)(2)(D) and (k), Ala. R.App. P.[1] "`"Plain error" only arises if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.'" Ex parte Womack, 435 So. 2d 766, 769 (Ala.), cert. denied, Womack v. Alabama, 464 U.S. 986, 104 S. Ct. 436, 78 L. Ed. 2d 367 (1983), quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981). The plain-error standard applies only where a particularly egregious error occurs at trial. Ex parte Harrell, 470 So. 2d 1309, 1313 (Ala.), cert. denied, 474 U.S. 935, 106 S. Ct. 269, 88 L. Ed. 2d 276 (1985). When the error "has or probably has" substantially prejudiced the defendant, this Court may *800 take appropriate action. Rule 39(a)(2)(D) and (k), Ala. R.App. P.; Ex parte Henderson, 583 So. 2d 305, 306 (Ala.1991), cert. denied, Henderson v. Alabama, 503 U.S. 908, 112 S. Ct. 1268, 117 L. Ed. 2d 496 (1992). Even under the stringent standards applicable to plain-error review, we conclude that the failure to properly instruct the jury in a capital-murder case as to the proper use of evidence regarding prior convictions constitutes reversible error. When a defendant testifies at trial, the State is entitled to impeach the defendant's credibility by introducing evidence of prior convictions. See Rule 609(a)(1)(B), Ala. R. Evid. In considering the admissibility of prior convictions for impeachment purposes, this Court has stated: McIntosh v. State, 443 So. 2d 1283, 1285 (Ala.1983). (Citations omitted.) The law in Alabama is clear that "evidence of prior criminal convictions for impeachment purposes may not be considered or taken into account in determining a defendant's guilt of the offense for which he is prosecuted." King v. State, 521 So. 2d 1360, 1361 (Ala. Crim.App.1987) (quoting 81 Am.Jur.2d Witnesses § 569 at 575 (1976)). It is well settled that when prior convictions are introduced for impeachment purposes the defendant is entitled, upon request, to have the jury instructed that those prior convictions cannot be considered as substantive evidence of guilt of the crime charged. King, supra. The issue in the present case is whether, absent a request or an objection by the defendant, the trial court has a duty to instruct the jury that evidence of prior convictions is not to be considered as substantive evidence of guilt. We hold that the trial court does have such a duty in a capital-murder case. Minor testified on direct examination that he had had prior convictions for assault in the second degree, for possession of cocaine, and for rape in the second degree. The Court of Criminal Appeals stated that the evidence of Minor's prior convictions was not admitted for impeachment purposes because it was elicited by Minor's counsel on direct examination. Minor v. State, 780 So. 2d at 777. We disagree. There is no consensus among the jurisdictions as to the proper treatment of a defendant's direct testimony admitting prior convictions. In State v. Smalls, 260 S.C. 44, 194 S.E.2d 188 (1973), upon direct examination, defense counsel elicited from the defendant the fact that he previously had been convicted of the crimes of robbery, grand larceny, and housebreaking. The Supreme Court of South Carolina stated: "When appellant testified, evidence of his prior convictions became admissible solely on the issue of his credibility as a *801 witness." 260 S.C. at 47, 194 S.E.2d at 189. Thus, the court concluded, the fact that the defendant first testified as to his prior convictions did not preclude his right to have the trial court limit the jury's consideration of his testimony to the issue of credibility. Similarly, in United States v. Diaz, 585 F.2d 116 (5th Cir.1978), the fact that the defendant testified on direct examination that he had two prior convictions did not preclude the necessity that the trial court instruct the jury that the evidence of prior convictions was to be considered only for a limited purpose. In Commonwealth v. Hurley, 32 Mass.App. Ct. 620, 592 N.E.2d 1346 (1992), the court considered the argument that a defendant who elects to introduce evidence of his prior convictions is not entitled to a limiting instruction because the evidence has not been introduced for impeachment purposes. That court concluded: "Realistically, the defense puts in the evidence only because the prosecution will do so otherwise; the basis for admissibility is the same." 32 Mass.App.Ct. at 622, 592 N.E.2d at 1347. The New Hampshire Supreme Court has held differently. That court has held that a trial court must provide a limiting instruction when evidence of prior convictions is introduced to impeach a defendant's credibility, unless such an instruction is specifically waived by the defendant, but that this rule does not apply when the defendant's prior convictions are admitted during the defendant's direct testimony. State v. Cassell, 140 N.H. 317, 666 A.2d 953 (1995). The Court of Criminal Appeals relied on Cassell in concluding that Minor's failure to request a limiting instruction could be viewed as a trial tactic used in order to prevent calling further attention to Minor's convictions through an instruction to the jury. However, to hold that the evidence of Minor's prior convictions was not offered for impeachment purposes would indicate that it was admissible for another purpose, and it was not. Minor's introduction, on direct examination, of evidence regarding his prior convictions was a trial tactic that does not change the purpose for which the evidence was admitted. Minor introduced evidence of these convictions in anticipation that otherwise it would be brought out by the prosecution; his introduction of it does not waive his right to have the jury instructed as to the proper use of it. This Court has never addressed the question whether a trial court has a duty to sua sponte instruct the jury as to the limited purpose for which it may consider evidence of prior convictions. The Court of Criminal Appeals has held that the trial court does not have a duty, sua sponte, to inform the jury that evidence of inconsistent statements may be considered only for the purpose of impeaching a witness's credibility. Varner v. State, 497 So. 2d 1135 (Ala.Crim.App.1986); Weaver v. State, 466 So. 2d 1037 (Ala.Crim.App.1985). However, Varner and Weaver were not capital cases, and the doctrine of plain-error review did not apply. In addition, those cases do not contain any holding or analysis with respect to impeachment by prior convictions. The Court of Criminal Appeals held in Pardue v. State, 571 So. 2d 320, 327 (Ala.Crim.App.1989), rev'd on other grounds, 571 So. 2d 333 (Ala.1990), that defense counsel's failure to request a limiting instruction or to object to the trial court's failure to instruct the jury regarding the defendant's prior convictions waived the issue for review. However, Pardue was not a capital case, and the doctrine of plain-error review did not apply. The State argues that the trial court was not required to give the jury a limiting instruction, absent a request by Minor, citing Charles W. Gamble, McElroy's Alabama Evidence, § 165.01(2) (5th ed. 1996): However, this Court has acknowledged the inherently prejudicial nature of evidence of a defendant's prior convictions. Cofer v. State, 440 So. 2d 1121, 1124 (Ala.1983) ("[e]vidence of prior bad acts of a criminal defendant is presumptively prejudicial to the defendant"). "The general exclusionary rule bars the state from introducing evidence of an accused's prior criminal acts for the sole purpose of proving the propensity of the accused to commit the charged offense." Hobbs v. State, 669 So. 2d 1030, 1032 (Ala.Crim.App. 1995). Thus, evidence of prior convictions is admissible only for limited purposes. "The basis for the rule lies in the belief that the prejudicial effect of prior crimes will far outweigh any probative value that might be gained from them. Most agree that such evidence of prior crimes has almost an irreversible impact upon the minds of the jurors." Cofer, 440 So. 2d at 1123 (quoting Charles W. Gamble, McElroy's Alabama Evidence § 69.01 (3d ed. 1977)). The general exclusionary rule "protects the defendant's right to a fair trial" by seeking "`to prevent conviction based on a jury belief that [the] accused is a person of bad character. The jury's determination of guilt or innocence should be based on evidence relevant to the crime charged.'" Cofer, 440 So. 2d at 1123 (citation omitted). Thus, it naturally follows that the trial court should take all necessary precautions to ensure that when evidence of a defendant's prior convictions is admitted into evidence, the jury is properly instructed on the purpose for which it may consider that evidence. This includes instructing the jury, sua sponte, that it may not consider the evidence of prior convictions as substantive evidence that the defendant committed the charged offense. Our holding today is in line with that of other jurisdictions that have addressed this issue. In State v. Brown, 296 S.C. 191, 192-93, 371 S.E.2d 523, 524 (Sup.Ct. 1988), the Supreme Court of South Carolina stated: "This Court has repeatedly held the jury must be charged that evidence of prior convictions is admissible only for impeachment. In a capital case, failure to give this charge is error even absent a request." The Court of Criminals Appeals attempted to distinguish Brown on the basis that the defendant in Brown was told by the trial court before he testified that he would receive a limiting instruction and thus in testifying relied on what he had been told, whereas Minor was never told, before testifying, that the jury would be given a limiting instruction. We do not find this to be a valid distinction. Minor was entitled to have the jury instructed on the proper use of evidence regarding his prior convictions, regardless of whether the trial court informed him of that entitlement before he testified. The United States Court of Appeals for the District of Columbia Circuit has held that in cases where evidence of other crimes by the defendant is introduced, not as substantive evidence, but solely as impeachment, "the trial court has a duty to see that the jury does not cross the boundary between credibility and substance in making its inferences from the prior act." The court stated that the trial court "must not only act sua sponte, whether or not request is made, but should give an appropriate instruction immediately before or after the impeachment evidence is submitted, to confine its effect before the evidence moves on to other matters." United States v. Bobbitt, 450 F.2d 685, 691 (D.C.Cir.1971). Similarly, the Sixth Circuit has held, in a habitual-offender case, that the failure of the trial court to instruct the jury on the permissible uses of the evidence of previous convictions, even absent *803 a request, created a "possibility of egregious unfairness [that] was so great in the absence of a limiting instruction that the failure to give one constituted clear error." Evans v. Cowan, 506 F.2d 1248, 1249 (6th Cir.1974). The Supreme Court of Mississippi has held that the trial court has a duty to instruct the jury sua sponte on the limited purpose of evidence of prior convictions, even in noncapital cases, when the prior conviction was for the same offense as the charged offense. See Robinson v. State, 735 So. 2d 208 (Miss.1999); Pugh v. State, 584 So. 2d 781 (Miss.1991) (following the holding in United States v. Diaz, 585 F.2d 116 (5th Cir.1978)). See also United States v. Garcia, 530 F.2d 650, 656 (5th Cir.1976) ("this Circuit obviously adheres to the rule that in certain circumstances the failure to give a [limiting] instruction amounts to plain error"). The Supreme Court of New Hampshire has held that the admission of evidence of prior convictions "absent an instruction limiting the use of this evidence to impeachment, is error unless the defendant specifically waives his right to such instruction on the record." State v. Skidmore, 138 N.H. 201, 202, 636 A.2d 64, 65 (1993). In the present case, the trial court gave this vague instruction on the use of impeachment evidence: The trial court did not tell the jury that the evidence of Minor's prior convictions could not be considered as substantive evidence that he committed the crime charged. Because the jurors were not so instructed, they were free to consider the prior convictions for any purpose; thus, they could consider the probability that Minor committed the crime because he had demonstrated a prior criminal tendency. Allowing the jury to make such use of the evidence was highly prejudicial and constitutes reversible error. See Randolph v. State, 348 So. 2d 858 (Ala.Crim. App.1977) (conviction reversed because the trial court failed to adequately distinguish between impeachment evidence and substantive evidence). The failure to instruct a jury in a capital-murder case as to the proper use of evidence of prior convictions is error, and that error meets the definition of "plain error." That failure is "so obvious that [an appellate court's] failure to notice it would seriously affect the fairness or integrity of the judicial proceedings." Womack, 435 So. 2d at 769. The Court of Criminal Appeals determined that there was no plain error because the trial court could have "reasonably determined that ... defense counsel had elicited Minor's admission of the prior convictions as part of trial strategy and did not want to call additional attention to the evidence through an instruction to the jury." 780 So. 2d at 773. We disagree. Assuming the trial court did believe that the failure to request the instruction was a trial tactic, the trial court could have easily inquired as to whether defense counsel wanted the instruction given. *804 Considering the presumptively prejudicial nature of evidence of a defendant's prior convictions, we consider it incumbent on the trial court to ensure that the jury was instructed on the proper use of such evidence. We conclude that the failure of the trial court to instruct the jury that it could not use such evidence as substantive evidence of guilt "has or probably has" substantially prejudiced Minor; thus, it satisfies the plain-error standard. See Rule 39(a)(2)(D) and (k), Ala. R.App. P. Furthermore, the prosecutor drew increased attention to Minor's prior convictions through his cross-examination.[2] On cross-examination, Minor provided details concerning each of the prior convictions. He claimed that the second-degree assault charge was based on a shooting that was done in self-defense; that the second-degree rape charge was based on the statutory rape of a female who had lied about her age; and that the drug-possession charge was based on drugs that were not his. The prosecutor used these elaborations to argue that Minor failed to take responsibility for his actions. Specifically, after Minor testified that he had pleaded guilty to possession of a controlled substance but that the drugs were not his, the following colloquy occurred: (R. 1259.) Thereafter, the prosecutor commented: "Actually, Mr. Minor, you have got an explanation for everything to minimize your responsibility, don't you?" Considering these statements in light of "1) [t]he tendency [of juries] to convict not because the defendant is guilty of the charged offense, but because evidence introduced shows he is a bad person who should be incarcerated regardless of his present guilt, and 2) the tendency [of juries] to infer that, because the defendant committed a prior crime, he committed the crime charged," McIntosh, 443 So. 2d at 1285, we must conclude that the trial court's failure to instruct the jury that Minor's prior convictions could not be used for those purposes constitutes a particularly egregious error. Therefore, we reverse the judgment of the Court of Criminal Appeals and remand for that court to order a new trial. REVERSED AND REMANDED. HOUSTON, COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. MADDOX and SEE, JJ., dissent. [1] This citation to Rule 39 is a citation to that rule as amended effective May 19, 2000. [2] In contrast, see Hurley, 32 Mass.App.Ct. at 622, 592 N.E.2d at 1347, stating that when a defendant introduces his own prior convictions on direct examination and such "defensive use of the prior convictions succeeds in closing the matter," a limiting instruction might put more emphasis on that evidence. However, in that case, the prosecutor "did not rehash the prior convictions on cross-examination [or] mention them in his closing argument"; therefore, the court concluded, defense counsel might have reasoned "that it would be counterproductive to ask for a limiting instruction that would remind the jurors of the prior convictions."

June 2, 2000

fea68e66-e834-4f28-843a-0b1ed68ab154

Old Republic Ins. Co. v. Lanier

790 So. 2d 922

1971340

Alabama

Alabama Supreme Court

790 So. 2d 922 (2000) OLD REPUBLIC INSURANCE COMPANY and Old Republic Union Insurance Company v. Tom LANIER, individually and d/b/a J.T. Lanier Agency. 1971340. Supreme Court of Alabama. May 26, 2000. Rehearing Denied March 2, 2001. *923 J. Fairley McDonald III of Maynard, Cooper & Gale, P.C., Montgomery, for appellants. Charles A. Dauphin and Donald R. James, Jr., of Baxley, Dillard, Dauphin & McKnight, Birmingham, for appellee. Rhonda Pitts Chambers of Rives & Peterson, Birmingham, for amicus curiae Alabama Defense Lawyers Ass'n. PER CURIAM. Old Republic Insurance Company and Old Republic Union Insurance Company (collectively "Old Republic") appeal from a judgment entered on a jury verdict in favor of Tom Lanier for $2,940,000 in compensatory damages, and $25 million in punitive damages. The dispositive issue on appeal is whether Lanier's action was barred by the doctrine of res judicata. We conclude that it was, and we therefore reverse and remand. This litigation already has a considerable history. See Old Republic Ins. Co. v. Lanier, 644 So. 2d 1258 (Ala.1994) ("Lanier I"); see also Lanier v. Old Republic Ins. Co., 936 F. Supp. 839 (M.D.Ala.1996) ("Lanier II"). The business relationships out of which the litigation arose are described in Lanier I and Lanier II, and will not be discussed here except as to those points pertinent to the new issues raised by this appeal. At the core of these relationships are two substantively identical agreements between Lanier and Old Republic (collectively the "Agreement"), Lanier I, 644 So. 2d at 1259, which were executed in 1987. Lanier II, 936 F. Supp. at 840. Pursuant to the Agreement, Lanier was to serve as an agent for Old Republic "in connection with an insurance program being developed to service the logging industry." Lanier I, 644 So. 2d at 1259. More specifically, it "authorized Lanier to solicit and bind worker's compensation and employer's liability coverage, comprehensive general liability coverage, automobile coverage, and inland marine insurance in Alabama, Florida, and Georgia." Brief of Appellant, at xxi. The Agreement contained the following pertinent provisions: Additionally, in January 1991, Lanier contacted Rickie Wayne Chancy and Jeffrey R. Stoutamire, who owned Chancy-Stoutamire, Inc. ("C-S"), a "major [insurance] competitor" in Florida. Lanier proposed that C-S "com[e] in and writ[e] their business through [his] contract with Old Republic as a subagent." (Reporter's Transcript, at 829.) Consequently, in January 1991, Lanier and Chancy executed a "letter of intent," stating in pertinent part: (Emphasis added.) Also in January 1991, Lanier sent to Charles D. Jordan,[1] a letter, which stated in pertinent part: (Emphasis added.) No noncompetition agreement between C-S and Lanier was ever executed. Moreover, Lanier and C-S had an "understanding" that the subagency could be cancelled arbitrarily by either party, at any time. By mid-1992, Lanier's relationships with Old Republic and C-S had become strained. On June 1, C-S wrote a letter to Old Republic expressing an interest in terminating its subagency with Lanier and commencing a direct agency relationship with Old Republic. The letter stated in pertinent part: Old Republic forwarded this letter to Lanier. On June 16, 1992, Lanier wrote to Old Republic, stating: (Emphasis added.) Subsequent attempts to resolve the difficulties between C-S and Lanier were, however, unsuccessful. Moreover, in a letter dated June 25, 1992, Old Republic accepted the offer of C-S to establish a "direct [agency] contract" with Old Republic. On July 27, 1992, Old Republic formally notified Lanier of its intent to terminate his agency on October 26, 1992, that is, after 90 days. Effectively, however, Old Republic terminated the agency immediately. More specifically, Old Republic immediately ceased both (1) writing new policies and (2) renewing existing policies generated by Lanier. On November 12, 1992, Lanier filed the six-count complaint commencing this action against Old Republic, C-S, Charles Jordan, Rickie Wayne Chancy, and Jeffrey Stoutamire.[2] See Lanier I, 644 So.2d at *926 1259. Counts one to three contained claims against Old Republic and Jordan. Counts four to six contained claims against the C-S defendants. Specifically, count one contained a "misrepresentation" claim against Old Republic and Jordan. Id. Count one alleged that "[i]n negotiations leading to the execution of the Agency Agreement, Old Republic ... represented to ... Lanier that [his] agency would be the exclusive agency for logging business in the states of Alabama, Georgia and Florida." It further alleged that "Lanier discovered the representations were false in June 1992." Count two contained a breach-of-contract claim, alleging breach of the Agreement. More specifically, count two alleged: Count three alleged as follows: In Lanier I, this Court construed count three as an allegation that Old Republic had "converted for [its] own use Lanier's clients and information pertaining to those clients' accounts, thus interfering with his business relationships." Id. at 1259. Old Republic moved to compel arbitration of the dispute on the basis of Article IX of the Agreement. The trial court "ordered arbitration as to the breach of contract claims, but denied the motion [to compel arbitration] as to the claims of fraud ... and ... conversion." Id. Lanier I represented, of course, this Court's disposition of the arbitration issues. Specifically, we reversed the order of the trial court as to the fraud claim, but affirmed the order of the trial court as to the breach-of-contract claim. Id. at 1263. We also affirmed the trial court's order as to the conversion claims. We stated: "Count three, alleging that Old Republic ... converted Lanier's clients and client information for [its] own use, `appears to raise issues largely distinct from the central conflict over the interpretation and performance of the [agreements themselves].'" Id. (quoting Mediterranean Enters., Inc. v. Ssangyong, 708 F.2d 1458 (9th Cir.1983) (emphasis added)). On July 2, 1993, while the appeal in Lanier I was pending, Lanier amended his complaint to add count eight, which alleged *927 that Old Republic had interfered with the subagency contract between Lanier and C-S. After remand, Old Republic moved to compel arbitration of the interference-with-subagency claim. That motion was denied. In that posture, the dispute proceeded to arbitration. In addition to compensatory damages under his breach-of-contract claim, Lanier sought punitive damages, as well as compensation for mental anguish, under his fraud claim. On July 14, 1995, after a four-day arbitration proceeding, the arbitration panel awarded Lanier $400,000 in compensatory damages on his breach-of-contract claim. However, it ruled in favor of Old Republic on the fraud claim. A judgment was entered in the United States District Court for the Middle District of Alabama confirming that award. See Lanier II, supra. On August 4, 1997, Old Republic moved for a summary judgment on the conversion and interference-with-subagency claims still pending in the trial court. It argued, among other things, that the claims were barred by the doctrines of res judicata and collateral estoppel. On August 18, 1997, Lanier moved the court to allow him further to amend his complaint by adding a "Third Cause of Action Against Old Republic." Specifically, he alleged: Old Republic moved to strike the amendment on the grounds of res judicata and "similar principles." On September 4, 1997, the trial court granted Old Republic's summary-judgment motion as to the conversion claim. However, the trial court granted Lanier's motion to add the claim alleging interference with his ownership of the expirations.[3] Over Old Republic's motions for a judgment as a matter of law, both claims, namely, the claim alleging interference with the subagency and the claim alleging interference with ownership of the expirations, were submitted to the jury. The jury awarded Lanier $27,940,000, which it apportioned between the two claims. On the subagency claim, the jury awarded $1.36 million in compensatory damages and $10 million in punitive damages. On the expirations claim, it awarded $1.58 million in compensatory damages and $15 million in punitive damages. The court entered a judgment on that verdict; Old Republic's post-trial motions were denied by operation of law. From that judgment, Old Republic appealed, reiterating its contention that the arbitration of this dispute was res judicata as to its subsequent litigation. We agree with this contention. As we stated in Hughes v. Martin, 533 So. 2d 188, 190 (Ala.1988): "The ... elements of res judicata are (1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions." Equity Resources Management, Inc. v. Vinson, 723 So. 2d 634, 636 (Ala.1998). "If those four elements are present, then any claim that was, or that could have been, adjudicated in the prior action is barred from further litigation." Id. (emphasis added). In Alabama, as elsewhere, an arbitration award "partakes of the nature of a judgment or decree of a competent court, and may be pleaded in bar of a subsequent suit founded on the same [cause of action]." Glens Falls Ins. Co. of New York v. Garner, 229 Ala. 39, 41, 155 So. 533, 534 (1934). See also American Ins. Co. v. Messinger, 43 N.Y.2d 184, 189-90, 401 N.Y.S.2d 36, 371 N.E.2d 798, 801 (1977) ("doctrines of [res judicata and collateral estoppel] apply as well to awards in arbitration as they do to adjudications in judicial proceedings"); Manu-Tronics, Inc. v. Effective Management Sys., Inc., 163 Wis.2d 304, 311, 471 N.W.2d 263, 266 (Wis. App.1991) ("Essential to arbitration remaining useful is the elementary principle that the doctrines of res judicata and collateral estoppel are applicable to arbitration awards."); Restatement (Second) of Judgments § 84(1) (1982) ("a valid and final award by arbitration has the same effects under the rules of res judicata, subject to the same exceptions and qualifications, as a judgment of a court"). Lanier does not challenge these general principles. He relies, however, on Restatement (Second) of Judgments § 26 (1982), which states that the doctrine of res judicata does not necessarily apply when "[t]he plaintiff was unable to rely on a certain theory ... or to seek a certain remedy or form of relief in the first action because of ... limitations on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies." He contends that the arbitration panel never acquired subject-matter jurisdiction over the two "claims" he eventually litigated. This is so, because, he argues, this Court in Lanier I ordered only the arbitration of his claims of fraud and breach of contract. Thus, he concludes, the arbitration panel did not have subject-matter jurisdiction of his claims of interference with (1) the subagency and (2) the expirations. We disagree with this conclusion. In Alabama "[i]t is well-settled that `the principal test for comparing causes of action [for the application of res judicata] is whether the primary right and duty or wrong are the same in each action.'" Wesch v. Folsom, 6 F.3d 1465, 1471 (11th Cir.1993) (emphasis added), cert. denied sub nom. Sinkfield v. Wesch, 510 U.S. 1046, 114 S. Ct. 696, 126 L. Ed. 2d 663 (1994). "Res judicata applies not only to the exact legal theories advanced in the prior case, but to all legal theories and claims arising out of the same nucleus of operative facts." Id. (emphasis added). "The question is whether the same evidence substantially supports both actions.... It is considered the same cause of action when the same evidence is applicable in both actions." Hughes v. Martin, 533 So. 2d 188, 191 (Ala.1988). As it is sometimes stated, "`[w]here two successive suits seek recovery for the same injury, a judgment on the merits operates as a bar to the later suit, even though a different legal theory of recovery is advanced in the second suit.'" Silcox v. United Trucking Serv., Inc., 687 F.2d 848, 852 (6th Cir.1982); Harrington v. Vandalia-Butler *929 Bd. of Educ., 649 F.2d 434, 437 (6th Cir. 1981); see also Kale v. Combined Ins. Co. of America, 924 F.2d 1161, 1166 (1st Cir.), cert. denied, 502 U.S. 816, 112 S. Ct. 69, 116 L. Ed. 2d 44 (1991), As a practical matter, if a plaintiff could avoid the application of res judicata to disputes he submitted to arbitration simply by restating the dispute in terms of a different legal theory, arbitration would be a waste of time and resources. Other courts have recognized this principle. For example, Goldstein v. Doft, 353 F.2d 484 (2d Cir.1965) (per curiam) stated: Id. at 484. See also Fink v. Golenbock, 238 Conn. 183, 680 A.2d 1243 (1996), where the court concluded that the arbitration of claims by Theodore Fink, a corporate shareholder, against Joan Magner, a corporate employee, for breach of an employment contract and a covenant not to compete, pursuant to an agreement requiring arbitration of "[a]ny disputes arising under [an employment contract]," 238 Conn. at 196, 680 A.2d at 1252 (emphasis added in Fink), barred the subsequent litigation in a shareholder's derivative action by Fink against Magner of claims that Magner "wrongfully converted the assets of the corporation, ... tortiously interfered with the reasonable business expectancies of the corporation, ... and ... violated the Connecticut Unfair Trade Practices Act [`CUTPA']." 238 Conn. at 185, 680 A.2d at 1247. The court explained: 238 Conn. at 196-97, 680 A.2d at 1252 (emphasis added) (footnote omitted). This Court has not construed the phrase "arising under" as broadly as Fink. See Lanier I, 644 So. 2d at 1262 (Alabama interprets the phrase "arising under" more narrowly than the phrase "arising out of or relating to"). Nevertheless, the issue in this case is the same as the issue in Fink, namely, whether the claims Lanier litigated "were within the scope of the submission" to arbitration. 238 Conn. at 196, 680 A.2d at 1252 (emphasis added). We conclude that they were. In fact, Lanier I ordered the arbitration of all "`"disputes and controversies relating to the interpretation of the contract and matters of performance."'" 644 So. 2d at 1262 (emphasis *930 added) (quoting with approval Mediterranean Enters., Inc. v. Ssangyong, 708 F.2d 1458, 1464 (9th Cir.1983)). Of course, that order included Lanier's claims alleging (1) fraud and (2) breach of contract. But we did not intend to restrict the subject-matter jurisdiction of the arbitration panel to claims stated in those specific terms. Instead, consistent with our rules of res judicata, we limited the scope of arbitration only to the cause, or causes, of action that the theories of breach of contract and fraud were designed to remedy. As previously noted, our comment describing Lanier's claim of conversion as raising issues "distinct from the central conflict over the interpretation and performance of the [agreements themselves]," Lanier I, 644 So. 2d at 1263, was clearly limited by the statement that that "appear[ed]" to be the case. Id. Lanier's right to avoid an arbitration judgment binding on other matters turned on what we previously described as the appearance of things becoming a reality. Such is not the case. Actually, this case involves two causes of action. One cause of action was Old Republic's alleged wrongful termination of the Agreement. The second cause of action was Old Republic's direct dealing with C-S in disregard of the alleged exclusive agency. Thus, if the claims alleging interference with the expirations and with the subagency were based on the same causes of action as the claims alleging breach of contract and fraud, then the former claims were barred by the doctrine of res judicata. This cause of action was arbitrated in connection with Lanier's breach-of-contract claim. A comparison of Lanier's claims alleging breach of contract and interference with expirations reveals that the "primary right and duty or wrong" complained of are the same in both. More specifically, the gravamen of each claim is that Old Republic wrongfully, that is, prematurely, terminated Lanier's agency. A primary component of damages flowing from that termination was, as Lanier's breach-of-contract count stated, the "loss of profits, loss of business opportunity, loss of clients and ... similar losses in the future." The trial court ordered depositions of members of the arbitration panel in order to determine the basis for awarding Lanier $400,000 on his breach-of-contract claim. Excerpts of those depositions were read at trial. The testimony revealed that the award was based on a finding that Old Republic had breached two specific provisions of the Agreement, namely, Article X.A. ("This Agreement shall be terminable at any time without cause by either party giving to the other party at least [90] days' prior notice of its intent to terminate"); and X.D. ("In the event of a termination of this Agreement by [Old Republic] for cause under paragraphs B or C above, the ownership of all expirations on insurance written hereunder shall belong to [Old Republic]. Otherwise, the ownership of all insurance expirations shall belong to [Lanier]...."). More specifically, the panel concluded that "the breach occurred because the 90-day period was not ... followed through on by Old Republic," and that Old Republic was "soliciting business during that 90-day period." (Reporter's Transcript, at 1725.) Lanier contends that the "claim for interference with his expirations did not even arise until after October 26, 1992, the date his termination became effective. Prior to this date Lanier was an agent and the agency provisions regarding ownership of expirations did not apply." Brief of Appellee, at 12-13. Thus, he argues, he had no cause of action for interference *931 with expirations that the arbitrators could have considered. This argument, however, overlooks the fact that Old Republic treated the agency as terminated immediately, that is, as of July 27, 1992. As the arbitrators found, Old Republic began "interfering" with Lanier's expirations as of that date. In other words, as of July 27, Old Republic actually (1) treated the Agreement as terminated; (2) disavowed Lanier's agency; and (3) began using the expirations. The arbitration panel necessarily considered that interference when it awarded Lanier $400,000 in damages based on Old Republic's breach of Article X.D. and the use of Lanier's expirations between July 27 and October 26. Moreover, count two of the complaint, in which Lanier sought compensation for breach of contract, specifically requested future "loss of profits, loss of business opportunity, [and] loss of clients." Relief for these future losses is precisely the species of relief to which Lanier claims to be entitled for interference with the expirations since October 26, 1992. The arbitrators rejected Lanier's claim for those future losses. Obviously, the correctness of the arbitration award is not before us for review. It is equally obvious (1) that Lanier's cause of action for wrongful termination of the Agreement accrued before October 26, 1992; (2) that it was presented to the arbitration panel under the theory of breach of contract;[4] and (3) that the claim for interference with expirations based on that same cause of action is now barred by the doctrine of res judicata.[5] The second cause of action was Old Republic's direct dealing with C-S in disregard of the alleged exclusive agency. It was arbitrated in connection with Lanier's fraud claim. Lanier's theory of the case both in arbitration and in litigationwas that Old Republic engaged in a plan or scheme to "gain control of the marketing of the timber program and to put Lanier out of business." Arbitration Brief, at 17. Also, he argued, "[t]here is no doubt that Old Republic's actions were intentional and designed with the specific purpose to steal the program from Lanier and then drive him out of business, thereby eliminating its main competition." Id. In his brief to this Court, he makes the same arguments, stating: "Clearly, the elimination of Lanier to *932 gain control of the program was [Old Republic's] main goal." Brief of Appellee, at 49. Under this theory, one of the means by which Old Republic sought to implement the scheme was misrepresentation regarding the question whether an exclusive agency existed. Another means was its dealings with C-S. Old Republic's plan to "steal the program," according to Lanier, began in, or around, December 1991, and included its dealings with C-S. Id. at 18. Indeed, Lanier's relationship with C-S was an integral part of his "program." In order to demonstrate Old Republic's methods and intentions toward Lanier's agency, Lanier presented to the arbitration panel evidence of the mid-1992 correspondence and transactions between Old Republic and C-S leading to the dissolution of the subagency. His arbitration brief outlined those facts in detail as evidence that Old Republic intentionally "set about destroying [his] agency." Id. at 13-15. To the arbitration panel, Lanier argued strenuously that these transactions warranted the imposition of punitive damages against Old Republic under Lanier's fraud claim. In his brief to this Court, under the heading "Degree of Reprehensibility," he relies on the same factsset forth in substantively identical termsto justify the jury's punitive damages award on his expirations and subagency claims. Brief of Appellee, at 39-40. He argues that those transactions "paint a vivid picture of connivance and deceit." Id. at 39 (emphasis added). Moreover, the compensatory-damages calculations Lanier submitted to the arbitration panel mirror the calculations he presented to the jury. To the arbitration panel, he argued that the "value of [his] exclusive rights to the program include[d the] investment or override opportunity" he enjoyed through his subagency with C-S. Arbitration Brief, at 9. He argued that "[w]ithout Old Republic's behind the scenes involvement, C-S would have continued as a sub-agent." Id. at 10. Both to the panel and to the jury, Lanier presented the expert testimony of Dave Borden, who testified that Lanier's compensable loss was $2.94 million, which included the difference between the value of Lanier's agency before "Chancy-Stoutamire went direct" and the value of his agency after his "relationship with Old Republic was terminated." (Reporter's Transcript, at 1048.) (Emphasis added.) See Clerk's Record, at 1603. Relying, apparently, on this testimony, the jury awarded precisely $2.94 million in compensatory damages. Lanier thus was awarded damages in the litigation for the same injuries for which he had sought damages in arbitration. This, he could not do. See Silcox v. United Trucking Serv., Inc., 687 F.2d 848, 852 (6th Cir.1982). Additionally, Lanier conceded to the panel: Arbitration Brief, at 22 (emphasis added). Finally, it must not be overlooked that Lanier's subagency claim arose under the Agreement containing the arbitration clause. This is so, because the subagency itself arose under the Agreement, that is, it "relat[ed] to the interpretation of the contract and matters of performance." Lanier I, 644 So. 2d at 1262. The Agreement was expressly referenced in the January 1991 letter of intent, which set forth the purposes of the relationship between *933 Lanier and C-S. Those purposes were further described in the Lanier-to-Jordan letter, which described the proposed subagency "contract" as "an addendum to J.T. Lanier & Associates," to be "contracted as a sub-agent under [the] Agreement." (Emphasis added.) Thus, because the subagency arose under the Agreement, claims against a party to the Agreement for that party's interference with the subagency also arise under the Agreement. These and many similar considerations convince us that the "nucleus of operative facts," Wesch v. Folsom, 6 F.3d 1465, 1471, which Lanier characterizes as "connivance and deceit" for purposes of his interference-with-subagency claim, constitutes the same cause of action that he presented to the arbitration panel as a basis for his fraud claim. Thus, the interference-with-subagency claim was "within the scope of the submission," Fink, 238 Conn. at 196, 680 A.2d at 1252, of the fraud claim ordered to arbitration by Lanier I. Consequently, the arbitration panel had subject-matter jurisdiction of that cause of action, and the exception advanced in § 26, Restatement (Second) of Judgments, on which Lanier relies, does not apply.[6] For these reasons, the judgment of the trial court is reversed and the cause is remanded for disposition consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] Jordan was "a representative of Old Republic." Lanier I, 644 So. 2d at 1259 n. 2. [2] Of these original defendants, Old Republic is the only defendant involved in this appeal. [3] The term "expirations" refers to "a list of the agency's customers." (Reporter's Transcript, at 787.) It "includes the names, the expiration dates, the effective dates, the coverages, the limits, the agency files and ... the right to collect commissions on that business." Id. [4] In this connection, we hasten to reiterate that the parties' rights to the expirations after termination of the Agreement arose directly under Article X.D. of the Agreement. In other words, Old Republic's interference with the expirations was the breach of contract. Thus, the dispute over the expirations was squarely "within the scope of the submission" ordered by Lanier I. Clearly, the arbitration panel had subject-matter jurisdiction over it. Consequently, the exception in § 26, Restatement (Second) of Judgments, on which Lanier relies, does not apply. [5] This conclusion is not inconsistent with our disposition of the conversion claim in Lanier I, wherebefore the evidence was fully developed in arbitration or in litigation as it has been nowwe said: "Count three, alleging that Old Republic ... converted Lanier's clients and client information for [its] own use, `appears to raise issues largely distinct from the central conflict over the interpretation and performance of the [agreements themselves].'" 644 So. 2d at 1263 (emphasis added). The conversion claim was extinguished by a summary judgment. To the extent the interference-with-expirations claim replaced it, the complaint's statement of the latter claim differed substantially from that of the former. Significantly, the conversion claim made no mention of the expirations, and the expirations claim made no mention of conversion. At any rate, a comparison of the transcript of the arbitration proceedings with the trial transcript leaves no doubt that the expirations claim was based on the same cause of action as the breach-of-contract claim submitted to arbitration. [6] The inapplicability of § 26 is further attested by the fact that the species of damages awarded by the trial court were fully recoverable in arbitration under the fraud claim. That they were not awarded in arbitration does not relieve Lanier of the operation of the doctrine of res judicata.

May 26, 2000

6e6f8c1c-9198-4072-b9ba-55a2178dc26c

Hobbs v. Alabama Power Co.

775 So. 2d 783

1981160

Alabama

Alabama Supreme Court

775 So. 2d 783 (2000) Patricia HOBBS v. ALABAMA POWER COMPANY. 1981160. Supreme Court of Alabama. March 24, 2000. Order Overruling Rehearing May 26, 2000. *784 Ralph E. Coleman of Coleman, Friday & Clem, Birmingham, for appellant. Roger L. Bates, I. Ripon Britton, Jr., and Jeffrey D. Dyess of Hand Arendall, L.L.C., Birmingham, for appellee. LYONS, Justice. Patricia Hobbs sued Alabama Power Company ("APCo"), seeking workers' compensation benefits and alleging bad-faith failure to pay workers' compensation benefits. She later amended her complaint to include a fraud claim. She appeals from a summary judgment entered for APCo on her fraud claim and made final pursuant to Rule 54(b), Ala. R. Civ. P. We affirm. APCo employed Hobbs as a meter reader. While working on January 3, 1996, she stepped in a hole; the accident resulted in her experiencing pain in her back and legs. Hobbs's treating physician, Dr. J. Michael Grabowski, diagnosed her injury as lumbar strain and placed her on restricted duty. Because Hobbs was not satisfied with the treatment Dr. Grabowski and two other physicians gave her, she chose Dr. Perry Savage from APCo's list of approved physicians, and she first saw him in April 1996. Dr. Savage diagnosed spinal stenosis, a degenerative spinal disease. Dr. Savage determined that Hobbs's lumbar strain resulted from her on-the-job injury but that her spinal stenosis was not related to her on-the-job injury. At that point, APCo agreed to pay for Hobbs's medical treatment for as long as she suffered from lumbar strain. On May 10 and 13, 1996, APCo's health manager informed Hobbs that APCo's workers' compensation insurance would cover her expenses related to her on-the-job injury, so long as there was a relationship between her back pain and her accident, but, because her condition was degenerative, she should file any additional medical expenses with her personal health-insurance carrier. On December 2, 1996, Dr. Savage stated that Hobbs's on-the-job injury had aggravated her preexisting spinal stenosis, but that the aggravation was temporary and transitory in nature. On December 5, 1996, he further stated that Hobbs should have recovered from her January 3, 1996, injury by that time and that she continued to suffer from only spinal stenosis, a condition that he had previously determined not to be related to her on-the-job injury. Dr. Savage recommended that Hobbs have decompression surgery. Although Dr. Savage said that surgery eventually would have been necessary to correct the spinal stenosis, he also stated that Hobbs's on-the-job injury made the surgery necessary sooner than it would have been if she had not had the injury. As a result of this diagnosis, APCo's medical director concluded, based upon Hobbs's treatment records and consultations with Dr. Savage, that Hobbs's on-the-job injury did not cause her spinal stenosis and that surgery for spinal stenosis was not compensable from a workers' compensation standpoint. On December *785 11, 1996, APCo's health manager wrote a letter to Dr. Savage informing him that Hobbs's future medical treatment and appointments should be covered by her personal health-insurance carrier because APCo's workers' compensation insurance would no longer cover her medical expenses. On January 20, 1997, Dr. Savage restricted Hobbs to light-duty work. On January 23, 1997, APCo placed Hobbs on "family medical leave" because it could not accommodate the work restrictions Dr. Savage had given Hobbs. Following Dr. Savage's recommendation for surgery, APCo's health manager again informed Hobbs that APCo's workers' compensation insurance carrier would not pay for her surgery because, it said, the injury did not arise out of her employment, and the health manager recommended that she submit her claim to her personal health-insurance carrier. APCo's health manager also told Hobbs that APCo would not compensate her for personal leave after the surgery. In her deposition, Hobbs testified that she could not afford to be absent from work without compensation and therefore decided not to have the surgery at that time. However, Dr. Savage eventually performed surgery on Hobbs's back, on March 27, 1997, and again on November 3, 1997. Hobbs filed claims for these surgeries with her personal health-insurance carrier. Dr. Savage found that Hobbs had reached maximum medical improvement on August 31, 1998, and released Hobbs to return to work, with restrictions. Shortly thereafter, Hobbs returned to work as a meter reader, at a wage equal to or greater than her preinjury wage. On January 22, 1997, Hobbs sued APCo, seeking workers' compensation benefits and seeking damages for bad-faith failure to pay a workers' compensation claim. On March 4, 1997, Hobbs moved for a partial summary judgment and/or expedited medical treatment. She moved for a summary judgment on her claim for workers' compensation, asking the court to determine that her injury was compensable under the Alabama Workers' Compensation Act. APCo then moved for a partial summary judgment on Hobbs's workers' compensation claim. Judge Drayton James, the trial judge, denied Hobbs's motion for a summary judgment and ordered Hobbs to submit her claims for surgery and medical expenses to her personal health-insurance carrier. Judge James concluded that APCo would have to reimburse Hobbs's health-insurance carrier if it was later determined that her medical treatment was the responsibility of APCo. Judge James also ordered APCo to pay Hobbs temporary total-disability benefits, for a period not to exceed four months. On May 13, 1997, Hobbs moved to amend her complaint to include a claim alleging fraud. Hobbs alleged that APCo had defrauded her by requiring her to file a claim for her back surgery against her personal health insurance. Judge James granted Hobbs's motion to amend her complaint. After Hobbs filed her amended complaint, Judge James died. Subsequently, Judge Marvin Cherner was assigned this case. APCo moved for a partial summary judgment on Hobbs's bad-faith and fraud claims. On May 7, 1998, Judge Cherner entered a summary judgment for APCo on Hobbs's bad-faith claim, but denied a summary judgment on Hobbs's fraud claim. On July 28, 1998, APCo filed a motion to "reconsider" the denial of its summary-judgment motion on Hobbs's fraud claim. Hobbs's claim for workers' compensation benefits was severed, and it was tried on September 8, 1998, by Judge G. William Noble. On October 16, 1998, Judge Noble found that Hobbs had suffered an on-the-job injury and that, while she did suffer from a degenerative condition, she was not precluded from recovering workers' compensation benefits because the preexisting condition had not affected her ability to perform her job. Judge Noble ordered APCo to pay Hobbs temporary total-disability *786 benefits for the period from January 23, 1997, to August 31, 1998, and to pay her permanent partial-disability benefits based on a 20% permanent partial impairment; and he ordered that APCo would remain liable for her future medical expenses incurred as a result of the injury. On March 4, 1999, Judge Cherner granted APCo's motion to reconsider and entered a summary judgment for APCo on Hobbs's fraud claim. Hobbs appeals from that summary judgment.[1] Hobbs's amended complaint alleges that APCo (1) had "fraudulently required" her to report and seek medical coverage from her personal health-insurance carrier, (2) had represented to her that "her injuries were not covered by workers' compensation and should be properly covered by her health care provider, Blue Cross/ Blue Shield," and (3) had "mistakenly or intentionally represented to Hobbs that Blue Cross/Blue Shield should provide care and treatment for her injuries she had received on the job, when the defendant knew or should have known that same was a work related injury to be paid by defendant Alabama Power Company, as a self-insurer of workers' compensation benefits." Hobbs alleges that APCo, by making what she calls a false and fraudulent representation, proximately caused her to delay her treatment and caused an aggravation of her injury. She maintains that she "was emotionally distressed, embarrassed, and harassed" by these events and that she suffered much pain. Our standard for reviewing a summary judgment is well settled. The summary judgment was proper if there was no genuine issue of material fact and if APCo was entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P. APCo had the burden of making a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. Long v. Jefferson County, 623 So. 2d 1130 (Ala.1993). If APCo made that showing, then the burden shifted to Hobbs to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against her. Id. In deciding whether the evidence created a genuine issue of material fact, we view the evidence in the light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Id. The applicable standard of review is the "substantial-evidence" rule. § 12-21-12, Ala.Code 1975. "Substantial evidence" is defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). This Court has recognized that intentional tortious conduct, such as intentional fraud, "committed beyond the bounds of the employer's proper role," is actionable notwithstanding the exclusivity provisions of the workers' compensation act. Lowman v. Piedmont Executive Shirt Mfg. Co., 547 So. 2d 90, 95 (Ala.1989). In Lowman, this Court stated: Id. at 94. In cases involving an allegation of intentional tortious conduct, this Court has imposed a standard of proof higher than the "substantial-evidence" standard: Id. at 95. Hobbs argues that the trial court erred in entering the summary judgment for APCo on her fraud claim because, she says, she produced clear and convincing evidence of intentional fraud. She also argues that the trial court erred in reversing its original order denying a summary judgment, on her fraud claim. In granting APCo's motion to reconsider the denial of APCo's motion for a summary judgment on the fraud claim, the trial court stated: In her amended complaint, Hobbs alleges that her treatment was delayed as a proximate consequence of APCo's allegedly false and fraudulent representation. Hobbs argues that APCo's conduct exceeds the conduct of the employer in Lowman. However, Hobbs's case is distinguishable from Lowman. Lowman sustained a back injury while working for *788 Piedmont and filed a workers' compensation claim. 547 So. 2d at 91-92. Piedmont's claims worker, Carol Hart, refused to process Lowman's claim and instructed her to fill out a claim stating that she had been injured at home, even though Hart had knowledge of the job-related nature of her injury, both from the employee and from her supervisors. Id. at 92. Several days later, Hart visited Lowman in the hospital, where Lowman was more acutely concerned about paying bills, and threatened her with "being stuck with a big [medical] bill" if she did not file her disability claim as one caused by an off-the-job injury. Id. Piedmont refused to pay any of Lowman's medical expenses. This Court found the employer's conduct to be "beyond the bounds of the employer's proper role." Id. at 95. Unlike the employer in Lowman, APCo never, with information to the contrary, insisted that the injury occurred away from the job. It never instructed Hobbs to complete a false claim, and it never preyed upon Hobbs with threats of financial ruin while she was in a weakened position. Even viewing the evidence in the light most favorable to Hobbs, we cannot say that APCo, by requiring Hobbs to submit her medical expenses associated with spinal stenosis to her private health-insurance carrier and by denying her request for coverage under APCo's workers' compensation plan, was guilty of conduct "beyond the bounds of the employer's proper role." See Lowman, 547 So. 2d at 95. In Hobbs's case, APCo offered to pay, and in fact did pay, her medical expenses associated with the lumbar strain that resulted from the January 3, 1996, on-the-job accident. This action was within the realm of APCo's proper role as an employer. In his order awarding Hobbs workers' compensation benefits, Judge Noble noted that she had been able to perform her duties as a meter reader before the January 3, 1996, accident. Under Alabama workers' compensation law, an employee has no "preexisting condition" if the employee is able to perform her work-related duties regardless of the existence of the condition alleged to constitute a "preexisting condition." See, e.g., International Paper Co. v. Rogers, 500 So. 2d 1102 (Ala.Civ.App.1986) (holding that an employee was entitled to workers' compensation benefits although before the accident she had suffered from a back deformity; she had never missed time from work and had been able to perform the functions of her job before the accident). It is well settled that workers' compensation benefits are not limited to those in perfect health. Altadena Valley Golf & Country Club v. Blue Cross & Blue Shield of Alabama, 644 So. 2d 913 (Ala.1994), quoting Ex parte Lewis, 469 So. 2d 599 (Ala.1985). Therefore, although Hobbs's degenerative back condition was present before the January 3, 1996, accident, Judge Noble held that that degenerative condition was not a "preexisting condition" for workers' compensation purposes, because she was able to perform her work-related duties before the accident. In workers' compensation litigation, an employee and the employer often contest the question whether the employee's medical problem is the result of an independent preexisting condition, or is the result of an aggravation of a preexisting condition by a compensable injury. See § 25-5-58, Ala.Code 1975, and the cases cited in annotations in Alabama Digest, Workers' Compensation § 552. In addition, as the trial court noted, to allow Hobbs to maintain a fraud claim against APCo under the circumstances of this case would in essence allow her to maintain a bad-faith claim against APCo. This Court has held that bad-faith claims are barred by the exclusivity provisions of the Workers' Compensation Act. Stewart v. Matthews Indus., Inc., 644 So. 2d 915 (Ala.1994). The Legislature has provided a remedy for the employee when a payment is delayed by an employer acting within the bounds of its proper role. Section 25-5-59(b), Ala.Code 1975, requires an employer to pay a 15% penalty if the employer *789 does not pay workers' compensation benefits within 30 days after the installment becomes due. Hobbs never asked the trial court to impose this penalty on APCo. Hobbs's evidence did not meet the "clear-and-convincing" standard set forth in Lowman. The evidence shows that APCo, based upon medical advice, believed it was Hobbs's degenerative condition, not her on-the-job injury, that necessitated her surgery. Therefore, APCo's decision not to pay for Hobbs's surgery was within its proper role as an employer. We find no clear and convincing evidence suggesting that APCo, acting beyond the bounds of its proper role, committed fraud. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. PER CURIAM. APPLICATION OVERRULED, BOTH AS TO THE MERITS OF THE CASE AND AS TO THE COURT'S JULY 9, 1999, ORDER. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. LYONS, J., concurs as to the ruling directed to the merits of the case; he recuses himself from consideration of the application to the extent it relates to the Court's July 9, 1999, order. LYONS, Justice (concurring as to the denial of rehearing directed to the merits of the case and recusing himself from consideration of the application to the extent it relates to the Court's July 9, 1999, order). In her application for rehearing, the appellant observes that I had been recused from the Court's earlier consideration of a motion in this matter, yet authored the opinion on the merits. Canon 3C(1)(b), Ala. Canons of Jud. Ethics, requires my recusal in matters related to the effect of §§ 12-24-1 and -2, Ala. Code 1975. I, therefore, did not participate in the Court's consideration of the motion ruled on by the Court's order of July 9, 1999, a motion based on §§ 12-24-1 and -2. After that motion was denied, the case was assigned to me, and I authored the opinion now before the Court on this application for rehearing. In the application, the appellant renews her contentions as to §§ 12-24-1 and -2. I once again recuse myself from participating in the Court's consideration of, and its ruling on, that aspect of the appellant's application for rehearing directed to the issues previously the subject of this court's order of July 9, 1999. [1] Hobbs does not appeal the trial court's ruling on her bad-faith claim.

May 26, 2000

dae32745-0756-479e-a7b4-0843625479c8

SCHNEIDER NAT. CARRIERS, INC. v. Tinney

776 So. 2d 753

1982136

Alabama

Alabama Supreme Court

776 So. 2d 753 (2000) SCHNEIDER NATIONAL CARRIERS, INC. v. Kenneth A. TINNEY. 1982136. Supreme Court of Alabama. May 26, 2000. Rehearing Denied July 28, 2000. John W. Clark, Jr., and Joseph E. Stott of Clark & Scott, P.C., Birmingham, for appellant. R. Ben Hogan III and J. Lee Roberts, Jr., of Hogan, Smith & Alspaugh, P.C., Birmingham, for appellee. HOUSTON, Justice. This case involves the failure of a safety device known as a "rear-impact guard" that was attached to a cargo trailer owned by Schneider National Carriers, Inc. ("Schneider"). On April 17, 1995, Kenneth Tinney was driving an automobile on Interstate Highway 20 when he rear-ended the cargo trailer owned by Schneider. The rear-impact guard failed, and Tinney was injured. Tinney sued Schneider. (He also sued Alfa Mutual Insurance Company and Wabash National Corporation ("Wabash"). Neither of those defendants is a party to this appeal.) The gravamen of his complaint was that the rear-impact guard had not been reasonably maintained. Schneider moved for a summary judgment. The trial court delayed ruling on the motion until discovery was completed, which was almost seven months after the court had *754 heard oral argument on the motion. After discovery had been completed, Tinney did not oppose the summary-judgment motion; the trial court entered a summary judgment in favor of Schneider on November 9, 1998. That summary judgment read: Tinney continued his action against Alfa and Wabash. On May 21, 1999, Tinney moved to reinstate Schneider as a defendant. The factual basis of the motion was newly discovered evidence. The legal basis of the motion was that the trial court's November 9, 1998, order had not been made a final order because the judge had not used the words "no just reason for delay" in the concluding sentence of the summary judgment, quoted above. Tinney contended that Rule 54(b), Ala. R. Civ. P., required that the judge use those exact words to make an order final under Rule 54(b). On September 1, 1999, almost 10 months after it had entered the summary judgment, the trial court granted the motion to reinstate Schneider, explaining its action in an amended order: Schneider appeals the trial court's September 1, 1999, order reinstating it as a defendant. Schneider argues that the November 9, 1998, order was a final judgment. The pertinent portion of Rule 54(b) provides: (Emphasis added.) In Sho-Me Motor Lodges, Inc. v. Jehle-Slauson Construction Co., 466 So. 2d 83 *755 (Ala.1985), this Court held that the following language, which concluded two summary-judgment orders, made the two orders final pursuant to Rule 54(b) even though the language did not mention Rule 54(b) and even though it stated no "express direction" for the entry of final judgments: "The Court further finds there is no just reason for delay in the entry of said final judgment." 466 So. 2d at 87. We held in Sho-Me that if it is clear and obvious from the language used by the trial court in its order that the court intended to enter a final order pursuant to Rule 54(b), then we will treat the order as a final judgment: 466 So. 2d at 87-88. In this present case, the trial court specifically cited Rule 54(b) as its ground for "expressly" making the summary judgment final. By citing Rule 54(b), the trial court implicitly incorporated the language of Rule 54(b) into its order. It would take a tortured and biased reading of the trial court's summary-judgment order to find anything but an express intent to make the order final under Rule 54(b). We are not generally approving the omission of language stating that the court has made "an express determination that there is no just reason for delay," because Rule 54(b) explicitly calls for such a determination. However, to say the determination is absent in this case would exalt form over substance, given the quoted portion of the trial court's order. Nonetheless, the better practice is for the trial court's order to speak to the point directly. Nothing in Rule 54(b) requires findings to buttress the conclusion "that there is no just reason *756 for delay." All that is required is an "express determination."[3] Therefore, the trial court's November 9, 1998, summary-judgment order was a final judgment pursuant to Rule 54(b). Pursuant to Rule 60(b), Ala. R. Civ. P., Tinney had four months to seek relief from the November 9, 1998, final judgment, on the grounds of newly discovered evidence. Tinney did not seek such relief until more than six months after the final judgment had been entered. Therefore, the trial court was jurisdictionally barred from reinstating Schneider as a defendant. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, COOK, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., dissents. JOHNSTONE, Justice (dissenting). In reversing, we are further eroding the formal requirements for the entry of a final Rule 54(b) judgment. In this case, the summary judgment neither recited nor explained that "there is no just reason for delay." Thus it was merely interlocutory and subject to revision, as the trial judge revised it. We should affirm. The purpose of the formal requirements is to ensure that the trial judge has considered and has found the criteria for the entry of a final Rule 54(b) judgment. See 10 Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2659 at 114. See also Justice Lyons's special concurrence in Ex parte King, 776 So. 2d 31, 37 (Ala.2000), and Precision American Corp. v. Leasing Service Corp., 505 So. 2d 380 (Ala.1987). In Brown v. Whitaker Contracting Corp., 681 So. 2d 226, 229 (Ala.Civ.App.1996), the Court of Civil Appeals explains: (Emphasis added.) Rule 54(b) is clear, sensible, and easy. Why not follow it? [1] The word "express" is defined as: "Clearly and unmistakably communicated; directly stated." Black's Law Dictionary 601 (7th ed.1999). [2] The word "determination" is defined as: "A final decision by a court or administrative agency." Black's Law Dictionary 460 (7th ed.1999). [3] The Court of Civil Appeals held in Brown v. Whitaker Contracting Corp., 681 So. 2d 226, 229 (Ala.Civ.App.1996): "The trial court should indicate why it considers that there is `no just reason for delay.' Hereafter, if a trial court should fail to list the factors considered, then the case will be returned so that the trial court can list those factors." Rule 54(b) does not require a trial court to list the factors it considered in finding that there is no just reason for delay. To the extent that Brown conflicts with Rule 54(b), Brown is overruled. Nevertheless, the trial court in this case complied with Brown by explaining in the second paragraph of its November 9, 1998, order: "The Court expressly finds that the claims which could be presented by the plaintiff against Schneider were significantly different than those claims that the plaintiff could present against the defendant Wabash National Corporation which [deal] specifically with the design defect as to a bumper allegedly manufactured by Wabash. It is clear from the summary judgment motion that the defendant Schneider National Carriers, had nothing to do with the design or manufacture of the bumper."

May 26, 2000

a0555f10-c484-4e20-b0fb-6ba53a9d62c9

Ex Parte Handley

775 So. 2d 141

1990420

Alabama

Alabama Supreme Court

775 So. 2d 141 (2000) Ex parte James W. HANDLEY. (In re James W. Handley v. Protective Life Insurance Company et al.) 1990420. Supreme Court of Alabama. June 23, 2000. *142 Ted L. Mann and Robert Potter of Mann & Cowan, P.C., Birmingham, for petitioner. W. Michael Atchison, Allan R. Wheeler, and Anthony C. Harlow of Starnes & Atchison, L.L.P., Birmingham, for respondent Protective Life Insurance Company. Louis B. Lusk of Lusk & Lusk, Guntersville, for respondent Valley Finance, Inc. PER CURIAM. James W. Handley, the plaintiff in an action pending in the Marshall Circuit Court, petitions for a writ of mandamus directing the trial court to vacate its order compelling arbitration of his claims against Protective Life Insurance Company. After examining the petition, the briefs, and the accompanying materials, we conclude that Handley has shown a clear legal right to the relief requested, see Ex parte Napier, 723 So. 2d 49 (Ala.1998); therefore, we grant the petition and issue the writ. Handley filed his complaint against Protective Life on February 20, 1998, seeking damages based on allegations of breach of contract, fraud, and bad-faith failure to pay an insurance claim. Handley's claims are based on allegations that Valley Finance, Inc., acting as Protective Life's agent, made certain misrepresentations to him in connection with the sale of credit-disability insurance. Handley alleged that he obtained a loan from Valley and that in conjunction with that loan he purchased credit-disability insurance from Protective Life. As a part of the loan transaction, Handley agreed to arbitrate any disputes that he might have with Valley. Handley did not include Valley as a defendant in his action against Protective Life. Protective Life answered the complaint, asserting certain affirmative defenses, and over the following months it participated in discovery. On June 22, 1999, Protective Life filed a third-party indemnity action against Valley. On August 20, 1999, approximately 18 months after Handley had filed his action, Protective Life moved to compel arbitration of his claims. Protective Life's motion was based on arbitration provisions contained in a certificate of insurance and a group insurance policy that Protective Life had issued to Handley. Shortly after Protective Life had filed its motion to compel, Valley moved to compel arbitration of Handley's claims against Protective Life and Protective Life's indemnity claim, based on an arbitration provision contained in Handley's loan documents, on an arbitration provision contained in Valley's agency contract with Protective Life, and on the arbitration provisions contained in the certificate of insurance *143 and the group policy. The trial court granted both motions, stating: The trial court ruled that Protective Life had substantially invoked the litigation process and that in doing so Protective Life had prejudiced Handley. For that reason, according to the trial court, Protective Life had waived its right to arbitrate. However, the court ruled that Valley had the right to arbitrate Protective Life's third-party indemnity claim and that Valley had standing to require Handley to arbitrate his claims against Protective Life. The trial court apparently reasoned that one or more of the arbitration provisions agreed to by Handley was broad enough to confer a right on Valley to require the arbitration of Handley's claims against Protective Life and that Handley's claims against Protective Life were so intimately involved or intertwined with Protective Life's indemnity claim against Valley that it would be inequitable and an improper use of judicial resources to sever Handley's claims from Protective Life's claims and allow those claims to be resolved in different forums. Handley argues, however, that the trial court acted within its discretion in ruling that Protective Life had substantially invoked the litigation process and had thereby waived its right to arbitrate under one or more of the arbitration provisions contained in the certificate of insurance and the group insurance policy. That ruling, according to Handley, should be conclusive with respect to Protective Life's motion to compel and with respect to Valley's motion to compel the arbitration of his claims against Protective Life. In other words, Handley takes the position that, whatever arbitration rights Valley may have, Valley does not have standing to require arbitration as between Handley and Protective Life, when Protective Life has waived its right to arbitrate. We agree. This Court applies an abuse-of-discretion standard in reviewing a trial court's ruling on a party's objection to arbitration on the ground of waiver. See, e.g., Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So. 2d 897 (Ala.1995). Although Protective Life clearly had the right to arbitrate Handley's claims by virtue of the arbitration provisions contained in the certificate of insurance and in the group policy, it waited approximately 18 months before it moved to compel arbitration. During that period, Protective Life engaged in discovery and filed a third-party indemnity action against Valley. All of this strongly suggests that Protective Life intended, at least initially, to resolve its disputes with Handley and Valley through the judicial process instead of through the arbitration process. After reviewing the facts of this case, we can find no abuse of discretion on the trial court's part in determining that Protective Life had substantially invoked the litigation process and that the delay caused by that action was prejudicial to Handley. However, we disagree with the trial court's conclusion that Handley's claims must nonetheless be arbitrated. This Court has recognized that a right to arbitrate may arise by contract or, under certain limited circumstances, by application of the doctrine of equitable estoppel. See First Family Fin. Servs., Inc. v. Rogers, *144 736 So. 2d 553 (Ala.1999), and the cases cited therein. However, neither of these bases for compelling arbitration is present here, because Handley did not sue Valley and Protective Life has waived its right to arbitrate Handley's claims. Without more, the fact that related claims may ultimately have to be resolved in different forums (Handley's claims will be resolved through the judicial process and Protective Life's indemnity claim will be resolved through the arbitration process) is not a sufficient basis for compelling the objecting party to arbitrate. See, e.g., Nissan Acceptance Corp. v. Jackson, 738 So. 2d 812 (Ala.1999); Universal Underwriters Life Ins. Co. v. Dutton, 736 So. 2d 564 (Ala.1999); First Family Fin. Servs., Inc. v. Rogers, supra. PETITION GRANTED; WRIT ISSUED. MADDOX, HOUSTON, COOK, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. HOOPER, C.J., concurs specially. BROWN, J., concurs in the result. SEE, J., dissents. HOOPER, Chief Justice (concurring specially). I agree that Valley, in this particular case, has no standing to force Handley and Protective Life Insurance Company to arbitrate the claims unique to Handley and Protective Life. It is my opinion, however, that this holding might not apply if Valley's involvement had been so intertwined with Handley's underlying claim against Protective Life that Valley would be considered a necessary party to Handley's action against Protective Life. SEE, Justice (dissenting). The majority issues a writ of mandamus directing the trial court to vacate its order compelling arbitration of the plaintiff Handley's claims against Protective Life Insurance Company. I dissent. First, I disagree with the main opinion's statement that "[t]his Court applies an abuse-of-discretion standard in reviewing a trial court's ruling on a party's objection to arbitration on the ground of waiver." 775 So. 2d at 143. The correct standard of review is that a trial court's legal conclusion that a party has waived its right to arbitration is subject to de novo review and that a trial court's findings of fact supporting that legal conclusion are subject to the "clearly erroneous" standard of review. Big Valley Home Center, Inc. v. Mullican, 774 So. 2d 558 (Ala.2000). Second, I disagree with the majority's acceptance of the trial court's holding that Protective Life has waived its right to compel arbitration by "substantially engag[ing] in the litigation process." (Order of October 1, 1999.) In Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So. 2d 1 (Ala.1986), this Court stated the general rule regarding a waiver of the right to arbitrate: "460 U.S. at 24-25, 103 S. Ct. at 941. 494 So. 2d at 2-3 (alterations and emphasis in Ex parte Merrill Lynch). Protective Life, in response to Handley's complaint, filed an answer on the merits. Protective Life did not in that answer assert the defense of arbitration. However, as this Court stated in Ex parte Merrill Lynch (quoting Clar Productions), merely filing an answer on the merits is insufficient to constitute a waiver. Protective Life also filed a third-party complaint against Valley Finance, Inc., seeking indemnification. However, that third-party complaint against Valley is not inconsistent with Protective Life's independent right to compel arbitration of Handley's claims against it and cannot constitute a ground for a finding of waiver. Protective Life propounded to Handley one set of interrogatories and one set of requests for production. Handley asserts that he has responded to these discovery requests. Although Handley asserts that Protective Life has noticed his deposition, Protective Life asserts that no depositions have yet been taken. As Ex parte Merrill Lynch indicates, participation in limited discovery, without more, does not amount to a waiver of the right to arbitration. See 494 So. 2d at 3. I conclude that Protective Life's filing an answer and a third-party complaint and its participation in limited discovery do not constitute substantial participation in the litigation process. Handley has not established that he has been prejudiced by Protective Life's delay in moving to compel arbitration or by its limited participation in the litigation process. See Allied-Bruce Terminix Cos. v. Dobson, 684 So. 2d 102, 109 (Ala.1995) (on remand) ("`Substantial invocation of the litigation process' is a factor that may tend to show that a party has waived the right to arbitrate. That factor, however, must be accompanied by a showing that the party opposing arbitration has been prejudiced by the other party's participation in the litigation." (Citations omitted.)). Accordingly, I would hold that Protective Life is entitled to compel arbitration of Handley's claims against it, based on the certificate of insurance and the insurance policy, and that Valley is entitled to compel arbitration of Protective Life's indemnification claim against it, based on the agency agreement between Protective Life and Valley.

June 23, 2000

b83bb161-f82d-4eea-8e7d-57a879fe3d77

Ex Parte Cassidy

772 So. 2d 445

1990531

Alabama

Alabama Supreme Court

772 So. 2d 445 (2000) Ex parte Ernest CASSIDY and Watford Enterprises, Inc. (In re Kent Turner Brock v. Ernest Cassidy et al.) 1990531. Supreme Court of Alabama. May 19, 2000. Robert C. Black, Jr., and Paul A. Clark of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for petitioners. *446 Thomas D. Motley and Kimberly A. Clark of Motley, Motley & Yarbrough, Dothan, for respondent. HOUSTON, Justice. Ernest Cassidy and Watford Enterprises, Inc., the defendants in an action currently pending in the Houston Circuit Court, petition for a writ of mandamus directing the trial court to join the plaintiff Kent Turner Brock's insurer, Safeco Property and Casualty Insurance Company, as subrogee of Brock. We deny the petition. This action arose out of an automobile accident between vehicles driven by Brock and Cassidy; Brock seeks to recover damages for property loss and personal injuries he claims to have sustained in that accident. Cassidy was an employee of Watford Enterprises, Inc., and was acting in the course of his employment at the time of the accident. Safeco and American State Insurance Company, the predecessor in interest to Safeco (hereinafter referred to together as "Safeco"),[1] contacted both Watford and Scottsdale Insurance Company, the insurance carrier for Watford, regarding a subrogation claim made by Safeco for claims it had already paid to Brock as a result of the accident between Brock and Cassidy. Cassidy and Watford then moved to join Safeco as a real party in interest under Rule 17, Ala. R. Civ.P., and/or as a necessary party under Rule 19. The sole question before this Court is whether the trial court abused its discretion in setting aside its order joining Safeco as a plaintiff in the current action. We must determine whether Safeco is a real party in interest under Rule 17(a). The law surrounding that question has recently undergone significant changes. The rule regarding when a subrogee could recover on a subrogation claim, and therein become a real party in interest, was originally stated in International Underwriters/Brokers, Inc. v. Liao, 548 So. 2d 163 (Ala.1989). In that case, this Court held that the general rule was that a subrogee is not entitled to recover unless the insured has had a full recovery. Id. at 164-65. However, we also held in that case that this rule would be superseded by any agreement to the contrary made by the parties. Id. Only a year later, in Powell v. Blue Cross & Blue Shield, 581 So. 2d 772 (Ala.1990), a plurality of this Court applied a blanket rulethat there would be no subrogation until the insured had received full recovery and that this rule could not be altered by an agreement of the parties. However, in a recent opinion, we overruled Powell and its progeny and reaffirmed the rationale of Liao. Ex Parte State Farm Fire & Cas. Co., 764 So. 2d 543 (Ala.2000). Under Liao, Safeco can be a real party in interest if it and Brock have agreed that subrogation will occur before Brock receives a full recovery from other parties. In Ex parte Brock, 734 So. 2d 998 (Ala.1999), this Court, in a situation similar to that presented in the present case, refused to issue a writ of mandamus directing the trial court to join the plaintiff's insurer because the petitioner had failed to include in the materials before us the subrogation agreement between the plaintiff and his insurer. Likewise, in the present case, the defendants have failed to place the plaintiff's insurance policy, including the subrogation agreement, before us. State Farm and Liao require that we study the subrogation agreement to determine whether it allows Safeco to subrogate before Brock is made whole. Until we conclude that this agreement does permit such subrogation, we cannot issue a writ of mandamus directing the trial court to order the joinder of Safeco as a plaintiff. This Court will issue a writ of mandamus only where there is "(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to *447 perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Ben-Acadia, Ltd., 566 So. 2d 486, 488 (Ala.1990). Mandamus is an extraordinary writ, and it will be issued only upon a clear abuse of discretion by the court. Ex parte Allstate Life Ins. Co., 741 So. 2d 1066, 1069 (Ala.1999). We note that the defendants in this case have vigorously attempted to have the plaintiff produce the policy. Initially, they requested information concerning subrogation in their interrogatories to Brock; Brock objected, claiming that the information requested was not reasonably calculated to lead to the discovery of admissible evidence. The defendants corresponded with Brock's counsel on two separate occasions, asking that Brock produce the information requested in the interrogatories. The defendants went as far as to show Brock why this information was relevant to the inquiry that is now before the Court. Brock never responded to this correspondence, and he has never produced the policy, the subrogation agreement, or any information concerning the subrogation agreement. It appears to this Court that Brock's inaction could amount to a situation where the defendants might be forced to involve the trial court in order to compel production of the materials under Rule 37, Ala. R. Civ.P. However, we are unable to say that the trial court abused its discretion, given that it did not have the subrogation agreement before it when it granted Brock's motion to set aside its order joining Safeco. We also note that this decision may not preclude further action under State Farm and Liao once the policy has been produced and the trial court has had the opportunity to review the subrogation agreement. WRIT DENIED. HOOPER, C.J., and MADDOX, SEE, LYONS, and BROWN, JJ., concur. JOHNSTONE and ENGLAND, JJ., concur in the result. JOHNSTONE, Justice (concurring in the result). I concur only in the result. My reservation is that I do not agree with Ex parte State Farm Fire & Casualty Co., 764 So. 2d 543 (Ala.2000), which overrules Powell v. Blue Cross & Blue Shield, 581 So. 2d 772 (Ala.1990). See my special writing in Ex parte State Farm. As both are only plurality decisions, the topic remains unsettled. [1] Brock's insurance policy was originally with American State Insurance Company. SafeCo is the successor in interest to American State, as a result of a buyout of American State by SafeCo.

May 19, 2000

6b613704-ea5d-4ca9-a702-7d311a41958e

Ex Parte Jackson

780 So. 2d 681

1982051

Alabama

Alabama Supreme Court

780 So. 2d 681 (2000) Ex parte Dr. David H. JACKSON and Brookwood Medical Center. (Re Willie Johnson, etc. v. Brookwood Medical Center et al.) 1982051. Supreme Court of Alabama. June 16, 2000. Rehearing Denied August 25, 2000. *682 Michael K. Wright, Sybil V. Abbot, and Geoffrey S. Bald of Starnes & Atchison, L.L.P., Birmingham, for petitioners. Charles C. Tatum, Jr., Jasper, for respondents. PER CURIAM. Dr. David H. Jackson and Brookwood Medical Center ("Brookwood") petition for a writ of mandamus directing the Jefferson Circuit Court to enter a final judgment in their favor in a medical-malpractice action filed against them. They argue that the plaintiff's claims against them are barred by the applicable statute of limitations. We deny the writ. The evidence and the pleadings, viewed in the light most favorable to the plaintiff, suggest the following facts: In early 1993, Mrs. Lydia Darnell had a heart attack. She was treated at Walker Regional Medical Center ("Walker Regional") and was released. About a month later, she again sought treatment at Walker Regional. Her doctor admitted her to that hospital and then transferred her to Brookwood, where Dr. Jackson treated her. Dr. Jackson performed two angioplasty procedures on Mrs. Darnell; however, Mrs. Darnell died two days later. Mrs. Darnell's brother, Willie Johnson, asked Dr. Jackson why Mrs. Darnell had died. Dr. Jackson told him that her heart was too weak to pull her through and that the two angioplasty procedures he performed did not cause or contribute to her death. Johnson believed Dr. Jackson and suspected that Mrs. Darnell's treatment at Walker Regional had led to her death. On April 11, 1995, within the time allowed by Ala.Code 1975, § 6-5-482, for filing a medical-liability action, Johnson filed this action in the Walker Circuit Court against Walker Regional and various fictitiously *683 named defendants described as the "person, persons, entity, or entities working at Walker Regional Medical Center ... who were responsible for providing care for Mrs. Lydia Darnell." In August 1994, Johnson sought and received Mrs. Darnell's medical records from Brookwood. Johnson's attorney had several physicians review the records. Until April 1996, all of those physicians concluded that Mrs. Darnell's treatment did not cause her death. However, in April 1996, another physician reviewed Mrs. Darnell's records and concluded that Mrs. Darnell died as a result of one of the angioplasty procedures Dr. Jackson had performed at Brookwood. On May 15, 1996, Johnson amended his complaint to name Dr. Jackson and Brookwood as defendants. The amendment stated that Johnson was substituting Dr. Jackson and Brookwood for certain of the fictitious defendants named in his original complaint. In August 1996, in the Walker Circuit Court, Dr. Jackson and Brookwood moved for a summary judgment. In October, the Walker Circuit Court severed Johnson's claims against Dr. Jackson and Brookwood from his claims against Walker Regional and transferred his claims against Dr. Jackson and Brookwood to the Jefferson Circuit Court. In March 1997, Dr. Jackson and Brookwood renewed their motion for a summary judgment. They argued, among other things, that Johnson's amended complaint had improperly attempted to substitute Dr. Jackson and Brookwood for the fictitious defendants identified in the original complaint, and that Johnson's claims against them did not relate back to the filing of the original complaint and were barred by the statute of limitations set forth in the Alabama Medical Liability Act. See Ala.Code 1975, § 6-5-482. Johnson opposed their motion. He conceded that the amendment did not relate back to the filing of the original complaint. He argued, however, that his claims against Dr. Jackson and Brookwood were not barred by the statute of limitations because, he said, they were brought within six months after the date he discovered or could reasonably have discovered that he had a cause of action against those defendants. See id. Specifically, he argued that Dr. Jackson had misrepresented and suppressed facts that would indicate that Dr. Jackson was liable for Mrs. Darnell's death. The circuit court delayed ruling on the motion for a summary judgment, in order to allow Johnson to conduct discovery relevant to the statute-of-limitations issue. After that discovery was completed, Dr. Jackson and Brookwood again renewed their motion for a summary judgment, and Johnson again opposed their motion. The circuit court denied the motion. A writ of mandamus is an extraordinary remedy, and one petitioning for it must show: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court. See Ex parte Conference America, Inc., 713 So. 2d 953, 955 (Ala. 1998) (citing Ex parte Edgar, 543 So. 2d 682, 684 (Ala.1989)). We cannot conclude that Dr. Jackson and Brookwood lack another adequate remedy. The limited materials before us indicate that after the circuit court denied their motion for a summary judgment, Dr. Jackson and Brookwood moved the circuit court to "reconsider" its denial, and that the circuit court denied that motion on June 29, 1999. The materials before us do not indicate that Dr. Jackson or Brookwood asked the circuit court to make the certification necessary for them to petition this Court for permission to appeal the order denying their motion for summary judgment. See Rule 5, Ala. R.App. P. Rather, on August 25, well after the time *684 allowed to petition for permission to appeal had expired, Dr. Jackson and Brookwood filed this petition. The general rule is that "`a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment.'" Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894 (Ala.1998) (quoting Ex parte Central Bank of the South, 675 So. 2d 403 (Ala.1996)). In all but the most extraordinary cases, an appeal is an adequate remedy; however, there are exceptionsfor example, when the trial court denies a motion for a summary judgment that is based on an argument that governmental immunity bars the plaintiff's claim. See, e.g., Ex parte Butts, 775 So. 2d 173, 177-78 (Ala.2000). In such a case, the defendant may seek pretrial appellate review by petitioning for permission to appeal an interlocutory order in accordance with Rule 5, Ala. R.App. P., or by petitioning for a writ of mandamus. See id. In Ex parte Southland Bank, 514 So. 2d 954, 955 (Ala.1987), this Court stated that "[t]he fact that a statute of limitations defense is applicable is not a proper basis for issuing a writ of mandamus, due to the availability of a remedy by appeal." 514 So. 2d at 955. Subject to a narrow exception, that statement remains true. In a narrow class of cases involving fictitious parties and the relation-back doctrine, this Court has reviewed the merits of a trial court's denial of a summary-judgment motion in which a defendant argued that the plaintiff's claim was barred by the applicable statute of limitations. See Ex parte Snow, 764 So. 2d 531 (Ala.1999) (issuing the writ and directing the trial court to enter a summary judgment in favor of the defendant); Ex parte Stover, 663 So. 2d 948 (Ala. 1995) (reviewing the merits of the trial court's order denying the defendant's motion for a summary judgment, but denying the defendant's petition for a writ of mandamus); Ex parte FMC Corp., 599 So. 2d 592 (Ala.1992) (same); Ex parte Klemawesch, 549 So. 2d 62, 65 (Ala.1989) (issuing the writ and directing the trial court "to set aside its order denying [the defendant's] motion to quash service or, in the alternative, to dismiss, and to enter an order granting the motion"). In Snow, Stover, FMC Corp., and Klemawesch, the plaintiff amended his or her complaint, purporting to substitute the true name of a fictitiously named defendant. In each case, the plaintiff's claim against the newly named defendant would have been barred by the applicable statute of limitations if the plaintiff's amendment did not, pursuant to Rule 15(c), Ala. R. Civ. P., relate back to the filing of the plaintiff's original complaint. As we explained in Snow, "[a] writ of mandamus is proper in a case such as this if the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue." 764 So. 2d at 537. This case is distinguishable from Snow, Stover, FMC Corp., and Klemawesch. Although Johnson's amended complaint states that he is substituting Dr. Jackson and Brookwood for fictitious parties named in the original complaint, he conceded that his amendment did not relate back to the filing of his original complaint, arguing instead that his claims against Dr. Jackson and Brookwood were timely because they were brought within six months after the date he discovered or could have discovered that he had a cause of action against them. Thus, the issue before the circuit court was not whether Johnson "failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue," Snow, 764 So. 2d at 537, but, rather, whether the time allowed for filing a medical-liability action against Dr. Jackson and Brookwood under § 6-5-482 had expired. Therefore, this case is not within that narrow class of eases in which we will review the denial of a motion for a summary judgment on consideration of a petition for a writ of mandamus. *685 The trial court's order denying Dr. Jackson and Brookwood's motion for a summary judgment is the kind of interlocutory order that is appropriate for review under the procedure set forth in Rule 5, Ala. R.App. P. Dr. Jackson and Brookwood did not attempt to use that procedure. If they had asked the trial court to give the certification required by that rule and the trial court had refused, this might be a different case. However, that case is not before us. We express no opinion concerning the merits of the trial court's order denying Dr. Jackson and Brookwood's motion for a summary judgment. This case is not within an exception to the rule that a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment. The petitioners could have sought permission to appeal that order, but they did not. Because another adequate remedy, i.e., an appeal, was available, we deny the petition for the writ of mandamus. WRIT DENIED. HOOPER, C.J., and SEE, BROWN, and ENGLAND, JJ., concur. HOUSTON, J., concurs specially. HOUSTON, Justice (concurring specially). Ms. Lydia Darnell died on April 17, 1993. Within four years of her death, and there is evidence that within six months after the plaintiff discovered the cause of action against Brookwood Medical Center and David H. Jackson, M.D., the plaintiff amended his complaint to state a claim against Brookwood and Dr. Jackson. Ala. Code 1975, § 6-5-482, provides in pertinent part: It is not for the Court, but for the trier of the facts, to determine "the date of discovery [of the cause of action] or the date of discovery of facts which would reasonably lead to such discovery" in this case; therefore, Brookwood and Dr. Jackson have not established a right to this Court's drastic remedy of mandamus.

June 16, 2000

5dbdf273-5cd2-403a-a53f-4d70fe12bec4

Ex Parte Employers Modern Life Co.

772 So. 2d 433

1990057

Alabama

Alabama Supreme Court

772 So. 2d 433 (2000) Ex parte EMPLOYERS MODERN LIFE COMPANY. (Re Robert L. Ammons v. Employers Modern Life Company et al.) 1990057. Supreme Court of Alabama. May 19, 2000. *434 James A. Kee, Jr., Larry S. Logsdon, and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for petitioner. Patrick M. Lavette of Sparrow & Lavette, Birmingham, for respondent. HOOPER, Chief Justice. This petition for the writ of mandamus arises from the trial court's denial of the defendants' motion to transfer an action pursuant to § 6-3-21.1, Ala.Code 1975, the forum non conveniens statute. Employers Modern Life Company (hereinafter "EML"), a defendant in an action pending in the Walker Circuit Court, petitions for a writ directing the circuit court to vacate its order denying the motion to transfer the cause to the Jefferson Circuit Court. Because the facts of this case clearly show that the defendants are entitled to the relief authorized by the Legislature under the forum non conveniens statute, we grant the petition. Robert L. Ammons, a resident of Jefferson County, sued EML; AA American Insurance Agency (hereinafter "AA"); Carol Williamson; Johnny Roe; and several fictitiously named defendants, in connection with his purchase of a life insurance policy. Ammons contends that he purchased a $25,000 life insurance policy in reliance on representations by Roe and Williamson, who he alleges to be agents of EML and AA, that his regular payment of a $60 monthly premium over a 10-year period would, at the end of the 10-year period, result in his having a fully paid-up $25,000 life insurance policy for 33 more years, with no further obligation to pay premiums. Ammons contends that he paid the premiums for the 10 years but that at the end of that 10-year period the defendants told him that if he stopped making premium payments he would receive only 23 more years of coverage, but that he could get 38 more years of coverage by paying premiums for an additional 2 years. He says he paid premiums for that additional two-year period, but that at the end of that two-year period the defendants told him he would be covered for only another 12 years (i.e., that, notwithstanding what he had been told, his payments for 12 years had purchased him 24 years' coverage). Thus, he says, he paid premiums in reliance on statements that he would receive 48 years' coverage, but that the defendants in fact provided him only 24 years' coverage. On April 14, 1998, Ammons sued in the Jefferson County Circuit Court, alleging misrepresentation and suppression against all defendants and alleging against EML and AA wanton or negligent hiring, supervision, and retention of agents Williamson and Roe. On April 20, 1998, Ammons moved to dismiss his action without prejudice; the motion was granted and an order of dismissal was entered on April 30, 1998. On May 8, 1998, Ammons filed in the Walker County Circuit Court a complaint that was identical to the complaint he had filed in Jefferson County, except that the second complaint added a claim alleging breach of contract. EML filed a "Motion to Dismiss and/or Motion to Transfer," based on a claim of improper venue and on § 6-3-21.1, Ala.Code 1975, the forum non conveniens statute. Section 6-3-21.1(a) states in pertinent part: EML moved to have the action transferred to Jefferson County. The trial court denied EML's motion on August 9, 1999, without stating any reasons or making any findings of fact. This Court's decisions in Ex parte First Family Financial Services, Inc., 718 So. 2d 658 (Ala.1998); Ex parte Independent Life & Accident Insurance Co., 725 So. 2d 955 (Ala.1998); and Ex parte National Security Insurance Co., 727 So. 2d 788, 789 (Ala. 1998), are controlling in this case. Those cases are strikingly similar to the present case, and each of them involved this Court's mandamus review of a trial court's order denying a motion for a change of venue. National Security, 727 So. 2d at 789. In First Family, this Court thoroughly analyzed the forum non conveniens statute and determined that the trial courts and this Court have "the power and the duty to transfer a cause when `the interest of justice' requires a transfer." 718 So. 2d at 660. In that case, the plaintiff filed an action in the Marengo Circuit Court and the defendant moved for a transfer to the Dallas Circuit Court. This Court found that the "interest of justice" required the transfer, based on the following facts: When the action was filed, the defendant did not maintain an office or keep documents in Marengo County; the plaintiff did not live in Marengo County; no meetings between the defendant and the plaintiff had occurred in Marengo County; all meetings between the plaintiff and employees of the defendant had occurred in Dallas County; and the defendant's office was located in Dallas County. 718 So. 2d at 662. Similarly, in Independent Life, this Court required the transfer of an action alleging breach of contract and fraud in connection with the sale of a life insurance policy, from Lowndes County to Montgomery County, based upon these facts: All the plaintiffs lived in Montgomery County; each of the policies at issue was sold in Montgomery County; all transactions involving the policies took place in Montgomery County; the three agents named as defendants worked out of Independent Life's office located in Montgomery County; and the deceased had been a resident of Montgomery County and had died in Montgomery County. 725 So. 2d at 956-57. In National Security, this Court issued a writ of mandamus directing the trial court to transfer an action from Lowndes County to Elmore County, based on the following facts: When the action was filed, the defendant "maintained no office, and kept no documents, in Lowndes County"; the plaintiff "did not live in Lowndes County"; "[n]o meetings between [the defendant] and [the plaintiff] occurred in *436 Lowndes County"; "all meetings between [the plaintiff] and employees of [the defendant] occurred in Elmore County"; the defendant's office was located in Elmore County; the plaintiff "was treated in Elmore County for her alleged mental anguish"; all of the plaintiffs witnesses lived in Elmore County; and none of the witnesses for either party lived in Lowndes County. 727 So. 2d at 790. In this present case, the facts submitted in the defendants' motion to transfer and in the plaintiffs reply to that motion indicate the following: Ammons resides in Jefferson County, although his residence is close to the Walker County line. The policy of insurance that is the subject of Ammons's complaint was negotiated, purchased, and delivered in Jefferson County. All alleged representations about the insurance policy were made in Jefferson County. None of the alleged actions that form the basis of this case occurred in Walker County. The two individual defendants reside in Jefferson County, and AA has its place of business in Jefferson County. EML is incorporated in Iowa and has its principal place of business there. EML does business throughout the State of Alabama, including Walker County; however, Ammons does not allege that EML has an office in Walker County. All of the defendants' witnesses, except EML's out-of-state employees, live in Jefferson County. Ammons does not allege that any of his witnesses are residents of Walker County or that any transaction relating to his lawsuit occurred in Walker County. Instead, Ammons contends that venue is appropriate in Walker County and that Walker County is a more convenient forum. Ammons contends that it is significantly more difficult for him to travel to the courthouse in Jefferson County than to travel to the courthouse in Walker County, even though they are roughly equidistant from Ammons's home. It takes Ammons approximately 25 minutes to drive to the Walker County courthouse at any time of the day, but it takes him approximately one hour to drive to the Jefferson County courthouse during rush hour. Ammons receives his mail at a Walker County address and conducts his business and shopping in Walker County. Ammons contends that his wife is expected to be called as a witness and that her mother lives on Ammons's property and is in fragile health. For that reason, Mrs. Ammons prefers to be as accessible to their home as possible. While these facts indicate that Walker County may be a more convenient forum for Ammons, none of these facts indicates any connection between the lawsuit and Walker County. The question in this case is not whether venue was proper in Walker County, but whether the trial court abused its discretion in denying the motion, made pursuant to § 6-3-21.1, to transfer the case to Jefferson County, where the plaintiff resides and where the policy was sold. In First Family, Independent Life, and National Security, this Court held that, under the facts presented, the "interest of justice" required the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action. The present case is indistinguishable from those cases. Borrowing wording from National Security, we note that "there is no witness, no document, no transaction, or anything else that would give the action a nexus with [Walker] County that would justify burdening that county with the trial of the case." 727 So. 2d at 790. Furthermore, the geographical proximity of Jefferson and Walker Counties does not affect our determination that the "interest of justice" requires a transfer. See National Security, supra. This Court has interpreted § 6-3-21.1 to require a transfer even between contiguous counties. Independent Life, supra. Based on § 6-3-21.1, as interpreted in First Family, Independent Life, and National Security, we hold that the trial court abused its discretion in denying the motion to transfer this case from Walker *437 County to Jefferson County. Accordingly, the Walker County Circuit Court is directed to vacate its order of August 9, 1999, denying the transfer motion and to transfer the pending action to the Jefferson County Circuit Court. PETITION GRANTED; WRIT ISSUED. HOUSTON, SEE, BROWN, and ENGLAND, JJ., concur.

May 19, 2000

f4fe749b-bab5-4da9-9baa-c1671e71f98f

Ex Parte Achenbach

783 So. 2d 4

1990339

Alabama

Alabama Supreme Court

783 So. 2d 4 (2000) Ex parte Walter ACHENBACH et al. (In re Walter Achenbach et al. v. FB Huntsville Owners LLC; and Twenty-Fourth Huntsville Corporation). 1990339. Supreme Court of Alabama. May 19, 2000. Rehearing Denied September 1, 2000. *5 Raymond D. Waldrop, Jr., of Waldrop & Associates, P.C., Huntsville, for petitioners. Henry I. Frohsin and Susan S. Wagner of Berkowitz, Lefkovits, Isom & Kushner, P.C., Birmingham, for respondent FB Huntsville Owners LLC. J.R. Brooks, Y. Albert Moore III, and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for respondent Twenty-Fourth Huntsville Corporation. HOUSTON, Justice. FB Huntsville Owners LLC filed an action in the Madison Circuit Court for the sale of certain commercial real property and a division of the proceeds among the owners thereof. The defendants were Walter Achenbach, Elizabeth Graham, Howard Kaneff, and Jeanette Sprunk, all of whom were co-owners of the property with Huntsville Owners. A tenant on the property, Twenty-Fourth Huntsville Corporation ("Twenty-Fourth"), intervened as a plaintiff. The defendants argued that the lease between all of the owners and Twenty-Fourth was void under § 35-4-6, *6 Ala.Code 1975. Huntsville Owners moved for a partial summary judgment, arguing that the lease was not void. Twenty-Fourth joined Huntsville Owners in that motion. The trial court granted the motion and entered a partial summary judgment holding that the defendants were estopped from claiming that the lease was void on the basis that it did not comply with § 35-4-6. The court entered a Rule 54(b), Ala. R. Civ.P., order making the partial summary judgment final. The defendants appealed to the Court of Civil Appeals, which affirmed. Achenback v. FB Huntsville Owners LLC, 783 So. 2d 1 (Ala.Civ.App.1999). We granted the defendants' petition for certiorari review, and we now reverse and remand. Huntsville Owners and the defendants were co-owners of a parcel of land. The previous owner of that property had entered into a ground lease of the property with a previous lessee. Eventually, Huntsville Owners and the defendants became the successor lessors, and Twenty-Fourth became the successor lessee. The original term of the lease was from March 1, 1971, through November 30, 1995 (24 years and 9 months); the lease also included irrevocable renewal rights for successive 5-year periods, up to an aggregate of 99 years. Section 35-4-6 Ala. Code 1975, provides: It is undisputed that the lease was for a term longer than 20 years, and that it was never filed for record or recorded in the Probate Court of Madison County. However, Huntsville Owners and Twenty-Fourth argue that the defendants are estopped from relying on this statute, citing Eastwood Mall Associates, Ltd. v. All American Bowling Corp., 518 So. 2d 44 (Ala.1987), a plurality opinion of this Court. That case involved a 20-year lease with two options to extend the lease by 10 years. The trial court in that case held that the initial lease lasted for only 20 years because at the end of the 20-year period, the lessor and lessee signed a new agreement that encompassed the 10-year extension. Id. at 45-46. This new agreement was determined to be a new 10-year lease. Furthermore, the trial court held that because neither the initial lease nor the subsequent 10-year lease was for more than 20 years, § 35-4-6 was inapplicable. Id. at 46. A plurality of this Court affirmed, but in doing so discussed the question whether the doctrine of estoppel applied in that case. Id. It is the discussion regarding estoppel that Huntsville Owners and Twenty-Fourth rely on in this case. The discussion in Eastwood reads: Eastwood, 518 So. 2d at 46. The Court of Civil Appeals affirmed the summary judgment for Huntsville Owners and Twenty-Fourth, based on the estoppel reasoning in Eastwood. The sole question before this Court is whether the Court of Civil Appeals erred in affirming a summary judgment that allowed a party to be estopped from asserting that a lease is void under § 35-4-6. This Court will review a summary judgment de novo, and it will apply the same standard as the trial court. Bussey v. John Deere Co., 531 So. 2d 860 (Ala. 1988). A summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ.P. When interpreting a statute, this Court will first look to the plain meaning of the words as written by the Legislature. DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270, 275 (Ala.1998). If the plain meaning of the language in the statute is unambiguous, then there is no room for judicial construction. Id. In reviewing the language of § 35-4-6, we first consider the phrase "Leases for more than 20 years shall be void for the excess over said period...." (Emphasis added.) The word "shall" is presumptively mandatory. Hornsby v. Sessions, 703 So. 2d 932, 939 (Ala.1997). Therefore, according to the plain meaning of § 35-4-6, a lease that is made for more than 20 years and that is not properly recorded, is void for any portion of that lease period that exceeds 20 years. The legislators' intent could not be clearer. This Court may not prevent a statute from achieving the effect envisioned by the Legislature. We have stated: DeKalb County LP Gas Co., 729 So. 2d at 276. In the past, this Court has followed the plain meaning of § 35-4-6 and has interpreted it in this way: City of Fort Payne v. Fort Payne Athletic Ass'n, Inc., 567 So. 2d 1260, 1263 (Ala. 1990). Huntsville Owners and Twenty-Fourth argue that the plurality opinion in Eastwood somehow changes the plain meaning of the words in the statute. Initially, we note that the precedential value of the reasoning in a plurality opinion is questionable. See 20 Am.Jur.2d, Courts 195 (1965); see also City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 108 S. Ct. 2138, 100 L. Ed. 2d 771 (1988); United States v. Pink, 315 U.S. 203, 62 S. Ct. 552, 86 L. Ed. 796 (1942). The affirmance in Eastwood was correct because the trial court correctly held that § 35-4-6 was inapplicable, there being no lease for a term *8 longer than 20 years. However, the discussion concerning estoppel was inconsistent with § 35-4-6 and, therefore, incorrect; the purported holding in Eastwood on the law of estoppel is overruled. Because we conclude that § 35-4-6 must be complied with and that a party cannot be estopped from asserting that a lease is void under that section, the trial court should not have entered the summary judgment in favor of Huntsville Owners and Twenty-Fourth, and the Court of Civil Appeals erred in affirming that judgment. We have fully considered the other arguments made by the parties in their briefs, but because of our holding regarding § 35-4-6, we pretermit any discussion of those arguments. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.

May 19, 2000

886034c9-eff8-45c3-8e79-dc2cc8e4c6c9

Wal-Mart Stores, Inc. v. Manning

788 So. 2d 116

1981621

Alabama

Alabama Supreme Court

788 So. 2d 116 (2000) WAL-MART STORES, INC. v. Frazier L. MANNING. 1981621. Supreme Court of Alabama. May 26, 2000. Rehearing Denied January 12, 2001. *117 Matthew C. McDonald, Michael M. Shipper, and Kirkland E. Reid of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for appellant. Patrick O'Neal Miller and W. Banks Herndon of Loftin, Herndon, Loftin & Miller, Phenix City, for appellee. SEE, Justice. Frazier Manning sued Wal-Mart Stores, Inc. ("Wal-Mart"), alleging that Wal-Mart had negligently or wantonly caused several boxes of VCRs to fall from a riser and to injure him. The jury returned a verdict in favor of Manning. The circuit court entered a judgment on that verdict. Because we hold that the circuit court erred in denying Wal-Mart's motion for a judgment as a matter of law, we reverse and remand. In June 1995, Frazier Manning entered a Wal-Mart retail store in Columbus, Georgia, intending to purchase a VCR and a television set. While he was in the electronics department looking at a VCR, several boxes containing VCRs fell from a riser on which they had been stacked and struck Manning on his head and right shoulder. Immediately after the incident, Christie Veach, a Wal-Mart assistant manager, approached Manning. Veach asked Manning what had happened and whether he was hurt. Manning did not know what had caused the accident, but indicated that he did not believe he had suffered any serious injuries. Veach brought Manning a chair, and for about 40 minutes, he rested in it. Manning then went to the clothing department, purchased a shirt for his grandson, and left the Wal-Mart store. The following Monday, Manning visited Dr. K.G. Edwards, a chiropractor, seeking treatment for pain in his neck and shoulder. Eventually, Dr. Edwards referred Manning to Dr. Fred Flandry for treatment of his shoulder and to Dr. Kenyon Rainer, a neurologist, for treatment of his neck. Dr. Rainer ordered an MRI test performed on Manning's neck. The MRI indicated that Manning had a herniated disk at the C-6/7 level. Dr. Flandry referred Manning to Dr. Kenneth Burkus. In April 1998, Dr. Burkus performed surgical fusion on Manning's neck. In August 1996, Manning sued Wal-Mart in the Russell County, Alabama, Circuit Court, seeking $45,000 in damages for the injuries he claims to have suffered from being struck by the boxes containing the VCRs. Manning initially asserted only a simple negligence claim. He later amended his complaint, adding a claim of wantonness and demanding punitive damages. Manning presented no evidence at trial to indicate what caused the VCRs to fall from the riser and strike him. Rather, his evidence indicated only that the VCRs had fallen off the riser and that other objects had fallen off risers in the store over the past several years. The jury returned a verdict in favor of Manning, awarding him $300,000 in compensatory damages and $1 million in punitive damages. After applying Georgia's statutory cap on punitive damages, the trial court entered a judgment in favor of Manning in the amount of $300,000 in compensatory damages and $250,000 in punitive damages. Wal-Mart appealed. Wal-Mart argues, among other things, that it was entitled to a judgment as a matter of law because, it says, Manning failed to present substantial evidence to support his claim that negligence or wantonness on the part of Wal-Mart proximately caused his injuries. *118 "A judgment as a matter of law is proper only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ and the moving party is entitled to a judgment as a matter of law." Locklear Dodge City, Inc. v. Kimbrell, 703 So. 2d 303, 304 (Ala.1997) (internal quotation marks and alterations omitted). In reviewing the denial of a motion for a JML, this Court must view all evidence in the light most favorable to the nonmoving party. See Bussey v. John Deere Co., 531 So. 2d 860, 863 (Ala.1988). The parties agree that Alabama's choice-of-law doctrine requires that the substantive rights of an injured party be determined according to the law of the state where the injury occurred. See Etheredge v. Genie Indus., Inc., 632 So. 2d 1324 (Ala.1994). Because Manning's injuries occurred in Georgia, we must apply the law of Georgia to the substantive issues in this case. See id. Of course, Alabama law still governs questions deemed to be "procedural" in nature. See id. Georgia law provides: Cook v. Home Depot, Inc., 214 Ga.App. 133, 134, 447 S.E.2d 35, 36 (1994) (citations, internal quotation marks, and emphasis omitted). Manning, however, made no showing that the VCRs were stacked in a dangerous manner and that Wal-Mart was actually aware that they were stacked in a dangerous manner. Even if Wal-Mart did not have actual notice that the VCRs were stacked in a dangerous manner, it could still be liable if it had constructive notice of a dangerous condition. See id. However, "`there was no evidence that there was any employee of [the premises owner] in the immediate vicinity who could easily have noticed [the dangerous condition].'" Id. (quoting Madaris v. Piggly Wiggly Southern, Inc., 205 Ga.App. 405, 406-07, 422 S.E.2d 273 (1992)). Although Manning could have established constructive knowledge by showing that Wal-Mart failed to exercise reasonable care in inspecting the premises, Manning presented no evidence to establish the length of time that the allegedly dangerous condition had existed. See id. Manning argues that Wal-Mart had constructive notice of the condition because, he says, it knew that other items had previously fallen from risers in the store. Specifically, Manning presented evidence indicating that 11 Wal-Mart customers had been injured by falling merchandise within the two years before his accident. However, the only similarity between the prior accidents and the accident in this case is that the merchandise had been stacked on risers. Nothing in the record indicates that it is inherently dangerous to stack merchandise on risers or that the merchandise that had previously fallen had been stacked on the risers in a manner similar to that in which the boxes containing VCRs had been stacked.[1] Accordingly, *119 Manning failed to establish that the facts regarding the prior incidents of falling merchandise were sufficiently similar to the facts of this case to provide Wal-Mart with constructive notice that the boxes containing VCRs in this case were stacked in a dangerous manner. See id. Because Manning failed to establish that Wal-Mart had either actual or constructive notice that the boxes containing VCRs were stacked in a dangerous manner, the circuit court erred in denying Wal-Mart's motion for a judgment as a matter of law on Manning's negligence and wantonness claims. Accordingly, we reverse the circuit court's judgment and remand the case for further proceedings consistent with this opinion. REVERSED AND REMANDED. MADDOX, HOUSTON, LYONS, and BROWN, JJ., concur. JOHNSTONE, J., concurs in part and dissents in part. HOOPER, C.J., and COOK and ENGLAND, JJ., dissent. JOHNSTONE, Justice (concurring in part and dissenting in part). I concur insofar as the majority holds that the plaintiff did not prove wantonness. I dissent insofar as the majority holds that the plaintiff did not prove negligence. (See Justice Cook's dissent.) I also dissent from the reversal of the judgment for compensatory damages. In this case the jury could not have found wantonness without also finding negligence, which the facts and the law support. We should reverse only that part of the judgment awarding punitive damages. HOOPER, Chief Justice (dissenting). I respectfully dissent. I would not require the plaintiff, Frazier Manning, to prove that the boxes fell because of negligence. First, considering the circumstances of the case, it is unlikely that the plaintiff could prove that. Once the boxes have fallen, how would Manning prove that they were stacked negligently? The only way I know is for an employee of Wal-Mart, if you could find the employee who stacked these particular boxes, to come forward and say, "We stacked the boxes so that they would fall." Any employee who admitted to stacking these particular boxes would probably testify that he stacked the boxes as he normally stacked boxes. How does a plaintiff prove negligence with that kind of testimony? Second, I consider my dissent in Kmart Corp. v. Bassett, 769 So. 2d 282 (Ala.2000), to apply to this case also. As I said in that case, "[the defendant premises owner] was the only entity in control of the instrument." Therefore, the doctrine of res ipsa loquitur should have been held applicable. Wal-Mart was in sole control of the boxes and the manner in which they were stacked. Wal-Mart had knowledge superior to that of Manning on the question whether the stacked boxes were a dangerous instrumentality. Unless the law requires some accountability on the part of entities such as Wal-Mart in this case and *120 Kmart in the Bassett case, what incentive do they have to maintain safe premises, whether by using a system of stacking boxes that avoids injuries to people like Frazier Manning or by keeping automatic doors in good condition so as to avoid injuries to people like Christine Bassett? COOK, Justice (dissenting). The majority reverses a judgment entered on a jury verdict in favor of Frazier Manning, who was injured while shopping in the "Airport Thruway Wal-Mart" store in Columbus, Georgia, by merchandise falling from the overhead "riser" on which it had been stacked.[2] The majority concludes that "Manning failed to establish that Wal-Mart had either actual or constructive notice that the boxes containing VCRs were stacked in a dangerous manner." 788 So. 2d at 119. I disagree with this conclusion. Manning claimed that personnel at the Airport Thruway Wal-Mart store negligently or wantonly stacked its merchandise, and that he was injured as a result. Under Georgia law, Wal-Mart could be liable if it knew, or, in the exercise of reasonable care, should have known, that its merchandise was stacked in a "defective manner." Sams v. Wal-Mart Stores, Inc., 228 Ga.App. 314, 315, 491 S.E.2d 517, 518 (1997). I believe Manning presented evidence from which the jury could reasonably infer that management personnel at the Airport Thruway Wal-Mart store knew that its merchandise was routinely being stacked in an improper and dangerous manner. For example, Manning presented evidence indicating that within two years and three days of the incident in which he was injured, at least 11 other persons shopping in the Airport Thruway Wal-Mart store had been struck by merchandise falling from risers. This evidence is particularly significant when considered in connection with the evidence that was produced in Ex parte Wal-Mart Stores, Inc., 682 So. 2d 65 (Ala.1996) ("Thompson I"), and Wal-Mart Stores, Inc. v. Thompson, 726 So. 2d 651 (Ala.1998) ("Thompson II"). The litigation in Thompson I and Thompson II arose out of an incident in which Elizabeth Thompson was struck in the head by a "footlocker" that fell from an overhead riser while she was shopping at the Wal-Mart store in Thomasville, Alabama. 726 So. 2d at 652. In Thompson I, this Court held that Thompson was entitled to "all accident and incident reports from all [86] Wal-Mart stores in Alabama" for the five years preceding her injury. 682 So. 2d at 66. As a result of this Court's holding, Thompson discovered that "167 accidents involving falling merchandise had occurred in Wal-Mart stores in Alabama during the five years preceding [her] accident." 726 So. 2d at 653. She also discovered that the Thomasville Wal-Mart store had had "two or three reports of falling merchandise before [her] accident." Id. at 654. Thompson II involved Wal-Mart's appeal from a judgment entered on a jury verdict in favor of Thompson, awarding her "$100,000 in compensatory damages on [her] negligence claims and $175,000 in punitive damages on [her] wantonness *121 claim." Id. at 652. This Court concluded that the evidence supported the verdict based on negligence, but not based on wantonness. Id. at 656. In contrast to the evidence presented in Thompson II, the evidence in this case reveals that merchandise falls from risers at the Airport Thruway Wal-Mart store with a startlingly high frequency. The graphic reality of this fact may be illustrated mathematically. Specifically, the average annual rate of riser-merchandise incidents in Alabama from June 1988 to June 1993 was .388 per store [167 state-wide incidents ÷ 86 (the number of Wal-Mart stores in Alabama) = 1.94 ÷ 5 years =.388]. Thus, the average annual incident rate at the Thomasville Wal-Mart store, namely, two or three incidents for the relevant period, was approximately twice the overall statewide average [3 incidents ÷ 5 years = .600 average annual incidents]. At the Airport Thruway Wal-Mart store, however, the average annual incident rate was a startling 5.50 [11 incidents ÷ 2 years = 5.50], more than 14 times the average annual state-wide incident rate in Alabama. In Tobin v. Wal-Mart Stores, Inc., 575 So. 2d 946, 951 (La.App.), writ denied, 580 So. 2d 923 (La.1991), the Court of Appeal of Louisiana reversed a trial-court judgment in favor of Wal-Mart and rendered a judgment in favor of the plaintiff Barbara Tobin, who had been injured by merchandise falling from a riser. In doing so, it relied on the testimony of Tobin's expert witness, William Hite, a former Wal-Mart employee. Id. at 948. Hite testified that "overhead risers are used to hold excess stock during peak seasons and that the decision to use these risers is made by the manager at each individual store." Id. (emphasis added). In this connection, Wal-Mart concedes that it had "a general guideline," pursuant to which "flat items suitable for stacking may be stacked up to 24" high on risers." However, Roger Hughey, manager of the Airport Thruway Wal-Mart store, stated that, in his opinion, VCRs could safely be stacked "five, six, maybe, seven VCRs high" on tops of risers. (Reporter's Transcript, at 273.) The dimensions of the VCR boxes in this case were estimated at 18" × 18" × 7". Thus, the jury could have inferred that the boxes were stacked as high as 49 inches, that is, more than two feet higher than Wal-Mart's "general guideline." Also, Christie Veach, an assistant manager at the Airport Thruway Wal-Mart store, completed a "Report of Customer Incident," detailing the facts of this accident. The report did not attribute the cause of the accident to the fault of any customer. Moreover, Veach testified that evidence of customer faultif it existed would have been in the report. These facts compel the conclusion that there was a breach of duty at the Airport Thruway Wal-Mart store. I would hold that Manning met his burden of proving Wal-Mart's culpability. Therefore, I respectfully dissent. [1] We note that evidence that shows merely a high frequency of accidents at a store is insufficient to establish that the store owner had knowledge of a specific dangerous condition at that store. See Cook, 214 Ga.App. at 134, 447 S.E.2d at 37. We further note that, under Alabama law, the rate of accidents at Wal-Mart stores for the entire State of Alabama is irrelevant to the issue of Wal-Mart's liability in this case. See Wal-Mart Stores, Inc. v. Thompson, 726 So. 2d 651, 653 (Ala. 1998) ("This figure [167 accidents involving falling merchandise during a 5-year period] represents accidents in Wal-Mart stores across the entire state; this Court has held that on questions of premises liability accidents at other locations are irrelevant."). [2] A riser, as Manning describes it, is "a flat shelf that is attached to the top of a gondola." Brief of Appellee, at 6. See also Tobin v. Wal-Mart Stores, Inc., 575 So. 2d 946, 947 (La. App.) (Wal-Mart "[m]erchandise is stacked on shelves that fit inside a gondola. The gondolas are approximately 5 feet high and extenders (risers) are used to allow greater height when needed."), writ denied, 580 So. 2d 923 (La.1991); Wal-Mart Stores, Inc. v. Thompson, 726 So. 2d 651, 652 (Ala.1998) (a riser is a "top shelf, where excess merchandise [is] kept").

May 26, 2000

9c0e4c25-5e22-47b4-990d-a1727b6625ee

Evans v. State

794 So. 2d 411

1990416

Alabama

Alabama Supreme Court

794 So. 2d 411 (2000) Ex parte State of Alabama. (In re Aaron EVANS v. STATE of Alabama). 1990416. Supreme Court of Alabama. May 19, 2000. *412 Bill Pryor, atty. gen., and Rosa H. Davis, asst. atty. gen., for petitioner. Collins Pettaway, Jr., of Chestnut, Sanders, Sanders, Pettaway & Campbell, P.C., Selma, for respondent. HOUSTON, Justice. Aaron Evans was convicted of one count of second-degree possession of a forged instrument, in violation of § 13A-9-6, Ala. Code 1975; seven counts of illegal absentee voting, in violation of § 19-10-17; and seven counts of second-degree forgery, in violation of § 13A-9-3. The Court of Criminal Appeals reversed the convictions, based solely on the fact that the trial court had granted the State's challenge of prospective juror E.F.W. for cause. Evans v. State, 794 So. 2d 405 (Ala.Crim.App.1999). We granted the State's petition for certiorari review; we now reverse and remand. Voir dire examination disclosed that E.F.W. was married to defense counsel's uncle. The following transpired: The State challenged E.F.W. for cause, based on this relationship; the trial court granted the challenge, over the objection of the defendant. The Court of Criminal Appeals held that E.F.W. could not be excused for cause based on the fact that she was the aunt by marriage of defense counsel. Evans, 794 So. 2d at 409. Furthermore, that court held that because the trial court had erred in excusing E.F.W., Evans's "constitutional right to a fair trial was violated" 794 So. 2d at 406; therefore, that court reversed the convictions. Id. The State argues on certiorari review, relying on Rule 45, Ala. R.App. P., that even if the dismissal was error, it was harmless error and does not require a reversal. We must first determine whether it was proper to grant the State's challenge *413 of E.F.W. for cause. Ala Code 1975, § 12-16-150, reads: This statute says nothing about a relationship between the juror and defense counsel. Additionally, both this Court and the Court of Criminal Appeals have held that it is not grounds for a challenge for cause that a juror is related to counsel in a criminal case. Washington v. State, 58 Ala. 355 (1877) (overruled on other grounds); Howard v. State, 420 So. 2d 828 (Ala.Crim.App.1982). Even the term "prosecutor," as it is used in § 12-16-150(4), means the person who instigates prosecution by making an affidavit charging a named person with the commission of a penal offense, not the district attorney that is prosecuting the case. Acoff v. State, 50 Ala.App. 206, 278 So. 2d 210 (1973). Therefore, it is clear that the trial court erred in granting the State's challenge of E.F.W. for cause based on her relationship to Evans's counsel. Thus, we must determine whether the Court of Criminal Appeals erred in failing to perform a harmless-error analysis before reversing Evans's convictions. While this Court has never dealt with this precise issue in a criminal case, we have discussed it in a civil case. In City of Gulf Shores v. Harbert Int'l, 608 So. 2d 348 (Ala.1992), the trial court excused a veniremember for cause, on the basis that he was a citizen of Gulf Shores, which was the plaintiff in that case. We held that the action by the trial court was clearly error under § 12-16-3, Ala.Code 1975, but we declined to reverse because of that error. Instead, we stated: 608 So. 2d at 355. It is clear that in a civil case the party appealing from an adverse ruling on jury selection must prove not only that the trial court erred, but also that the error "has probably injuriously affected [that party's] substantial rights." Rule 45, Ala. R.App. P. Rule 45, Ala. R.App. P. reads: (Emphasis added.) We see no reason why Rule 45, as it applied in Gulf Shores, *414 should not apply to similar situations in criminal cases as well.[1] Evans argues that the trial court's error in excusing E.F.W. violated his right to a trial by an impartial jury, a right guaranteed by Amendments 6 and 14 of the United States Constitution and § 6 of the Alabama Constitution. However, the United States Supreme Court has held that a defendant's federal right to an impartial jury was not automatically violated merely by an erroneous ruling on a challenge for cause. Ross v. Oklahoma, 487 U.S. 81, 87-88, 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988); see also United States v. Martinez-Salazar, 528 U.S. 304, 120 S. Ct. 774, 145 L. Ed. 2d 792 (2000). As long as the jury that heard the case was impartial, the right guaranteed by the United States Constitution was not violated. See Ross, 487 U.S. at 87-88, 108 S. Ct. 2273. This rule would also apply to § 6 of the Alabama Constitution, which gives the defendant the right to a trial "by an impartial jury of the county or district in which the offense was committed." The plain meaning of this language is that the defendant is entitled only to an impartial jury and that unless the defendant can show that a trial court's erroneous ruling during jury selection prevented the jury from being impartial, there is no violation of § 6. Evans has made no showing that his rights, such as his right to an impartial jury, were probably injuriously affected by the trial court's excusing E.F.W. Therefore, we conclude that the trial court's error in excusing E.F.W. was not reversible, because, even with the error, Evans still had a fair trial with an impartial jury. The judgment of the Court of Criminal Appeals is reversed and the case is remanded. REVERSED AND REMANDED. HOOPER, C.J., and SEE, LYONS, BROWN, and JOHNSTONE, JJ., concur. MADDOX, J., concurs in the result. COOK, J., dissents. COOK, Justice (dissenting). I respectfully dissent. The majority determines that the trial court "clear[ly] ... erred in granting the State's challenge of E.F.W. for cause based on her relationship to [the defendant's] counsel." 794 So. 2d at 413. Nevertheless, it concludes that an error such as this, i.e., improperly allowing the State a strike for cause, does not necessitate a reversal of the defendant's conviction unless the defendant "can show that [the] trial court's erroneous ruling ... prevented the jury from being impartial." 794 So. 2d at 414. In doing so, it relies on United States v. Martinez-Salazar, 528 U.S. 304, 120 S. Ct. 774, 145 L. Ed. 2d 792 (2000). In that case, the defendant exercised one of his peremptory strikes to cure the trial court's erroneous denial of a challenge for cause. The narrow holding in that case was that "a defendant's exercise of peremptory challenges pursuant to [Fed.R.Crim.P. 24(b) ] is not denied or impaired when the defendant chooses to use a peremptory challenge to remove a juror who should have *415 been excused for cause." 528 U.S. at 316, 120 S. Ct. at 782. This case is clearly distinguishable. Indeed, it is the converse of Martinez-Salazar. This case involves the trial court's erroneous removal of a veniremember who was fully qualified to sit on the jury. The wrongful removal of a veniremember implicates the equal-protection guarantees of the excluded veniremember, as well as those of the defendant, without any particularized showing of bias. See Campbell v. Louisiana, 523 U.S. 392, 118 S. Ct. 1419, 140 L. Ed. 2d 551 (1998) (exclusion of veniremembers on the basis of race denies the excluded veniremembersas well as the litigantsthe equal protection of the law); Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992) (same); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991) (same); see also J.E.B. v. Alabama, 511 U.S. 127, 128, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994) (veniremembers "have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes"). The issue before this Court was not presented or addressed in Martinez-Salazar. I respectfully dissent. [1] We note that Rule 45 encompasses the language of Rule 61, Ala. R. Civ. P., which states the harmless-error rule for trial courts in civil cases. While that Rule 61 has no counterpart in the Alabama Rules of Criminal Procedure, the following statement appears in Rule 31: "All appeals from judgments rendered in the district and circuit courts to the Court of Criminal Appeals and the Supreme Court of Alabama shall be taken in accordance with the Rules of Appellate Procedure as promulgated by the Supreme Court of Alabama." Reading all these rules together, we consider it clear that Rule 45, Ala. R.App. P., was intended to govern appeals in both civil cases and criminal cases.

May 19, 2000

da416ec8-8e92-43e1-a9c1-776ab4e4ed7d

Ex Parte Goldsen

783 So. 2d 53

1991512

Alabama

Alabama Supreme Court

783 So. 2d 53 (2000) Ex parte Julie A. GOLDSEN. (In re Julie A. Goldsen v. Rebecca Ann Simpson). 1991512. Supreme Court of Alabama. August 11, 2000. *54 William W. Watts III of Hudson & Watts, L.L.P., Mobile, for petitioner. G. Randall Spear of Richardson, Spear & Spear, P.C., Mobile, for respondent. HOUSTON, Justice. Rebecca Ann Simpson sued Julie Goldsen for damages based on injuries Simpson sustained when her vehicle was involved in an accident with vehicles driven by Goldsen and David Herbstreith. The vehicle driven by Goldsen struck the vehicle driven by Herbstreith, which then struck Simpson's vehicle. Herbstreith settled with Simpson for $20,000. A jury found Goldsen liable for Simpson's injuries and awarded Simpson $76,898.39. Goldsen moved to have the jury award set off by the amount of Simpson's settlement with Herbstreith, but the court denied her motion. She appealed the trial court's decision on that motion to this Court; we transferred the case to the Court of Civil Appeals, pursuant to Ala.Code 1975, § 12-2-7(6). The Court of Civil Appeals affirmed, with an opinion by two Judges, with one Judge concurring in the result and two Judges dissenting. Goldsen v. Simpson, 783 So. 2d 46 (Ala.Civ.App.2000). We granted certiorari review, and we now reverse and remand. After settling with Herbstreith for $20,000, the limits of coverage under his liability policy, Simpson sued Goldsen, and she also sued her own insurer under the uninsured-/underinsured-motorist portion of her policy. In addition to being asked to determine whether negligence on the part of Goldsen had proximately caused Simpson's injury, the jury was also instructed because of the issues involving uninsured-motorist coverageto determine whether Herbstreith had negligently caused Simpson's injuries. The jury found that Herbstreith was not negligent. Goldsen filed a posttrial motion to have Simpson's damages reduced by the amount *55 of Herbstreith's settlement$20,000. The trial court denied this motion. This appeal presents us with an issue of first impression in this State: Whether damages that a jury awards against a negligent defendant can be offset by a pro tanto settlement when the jury has found that the settling party was not negligent, and, therefore, would not be liable for the damage to the plaintiff. There is a split among the jurisdictions that have dealt with this issue. The majority rule is stated by Dean Prosser: W. Prosser, Handbook of the Law of Torts § 49 at 305 (4th ed.1971). (Emphasis added.) Likewise, Restatement (Second) of Torts § 885(3) (1979) states: This view is justified by the rule that the plaintiff should receive only one satisfaction for his injuries. The Supreme Court of South Dakota has stated: Duncan v. Pennington County Housing Auth., 283 N.W.2d 546, 552 (S.D.1979). (Emphasis added.) In addition, the Supreme Court of North Dakota has held: Levi v. Montgomery, 120 N.W.2d 383, 389 (N.D.1963). *56 The United States Court of Appeals for the Ninth Circuit, applying Alaska law, has written: Layne v. United States, 460 F.2d 409, 411 (9th Cir.1972). On the other hand, the minority rule holds that set-offs should not be allowed, on the basis that they are unfair to plaintiffs. See Domingue v. Luke Fruge, Inc., 379 So. 2d 490 (La.App.1979); Berg v. Footer, 673 A.2d 1244 (D.C.1996); Bertram v. Freeport McMoran, Inc., 35 F.3d 1008, 1019 (5th Cir.1994). The Judges joining the main opinion of the Court of Civil Appeals agreed with this rule, stating: Goldsen, 783 So. 2d at 51. Alabama has not adopted the doctrine of comparative negligence. Williams v. Delta Int'l Mach. Corp., 619 So. 2d 1330 (Ala.1993). We disagree with the Court of Civil Appeals; we conclude that the nonsettling defendant is not getting a windfall, but is simply paying the portion of the damages owed to the plaintiff that remains after the settlement. This Court has consistently held that "[c]ompensatory damages are designed to make the plaintiff whole by reimbursing him or her for the loss or harm suffered." Ex parte Moebes, 709 So. 2d 477, 478 (Ala.1997); see Torsch v. McLeod, 665 So. 2d 934, 940 (Ala.1995). Furthermore, we have also stated, "It is a universal rule that a plaintiff, although entitled to full compensation for an injury, is entitled to only one recovery for a single injury caused by two or more tortfeasors." Shepherd v. Maritime Overseas Corp., 614 So. 2d 1048, 1051 (Ala.1993); see also Ex parte Rudolph, 515 So. 2d 704 (Ala.1987). In those cases where one tortfeasor settles, we have allowed the nonsettling tortfeasor to have the jury award reduced by the amount of any pro tanto settlement. Campbell v. Williams, 638 So. 2d 804 (Ala. 1994). In light of the purpose of compensatory damages in Alabama, we see no reason why this rule should not be extended to settling parties that are determined, *57 after they have been dismissed from the case, to have had no liability. Therefore, the jury award of $76,898.39 should have been reduced by the amount of Herbstreith's settlement$20,000. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. SEE, J., concurs in the result. SEE, Justice (concurring in the result). I concur in the holding of the main opinion that the defendant Goldsen is entitled to a set-off against the compensatory damages awarded by the trial court ($76,898.39) in the amount paid by Herbstreith ($20,000) in settlement of Simpson's potential claim(s) against him arising out of the automobile accident. To require Goldsen to pay the entire $76,898.39 would result in Simpson's receiving a windfall above the actual amount she was entitled to receive as compensation for her loss. This result is consistent with the well-established rule of Alabama law "that a person injured by joint tort-feasors may release one or more pro tanto and proceed against the others. The tort-feasors may plead the release as a bar to that amount paid by the released tort-feasor or may place it in evidence showing payment for the injury up to the amount shown in the release. Anderson v. Kemp, 279 Ala. 321, 184 So. 2d 832 (1966)." Bucyrus-Erie Co. v. Von Haden, 416 So. 2d 699, 702 (Ala. 1982); see also Jenelle M. Marsh and Charles W. Gamble, Alabama Law of Damages § 10-4 at 101 (4th ed. 1999) ("If the plaintiff gets recovery from one joint tortfeasor and pursues the other tortfeasor,... the latter can claim set-off or credit against the plaintiff for any sums paid by the other tortfeasor."). However, I am not prepared in this case to extend that general rule "to settling parties that are determined, after they have been dismissed from the case, to have had no liability." 783 So. 2d at 56-57. There has been no judicial determination of Herbstreith's liability because Herbstreith was not a party to the litigation. See Goldsen v. Simpson, 783 So. 2d 46 (Ala.Civ.App.2000) (Monroe, J., dissenting). Thus, it is unnecessary for this Court to extend the rule to settling, non-tortfeasors, because the facts of this case do not present that issue. Herbstreith is an alleged joint tortfeasor who has not been judicially determined not to be liable; therefore, Goldsen is entitled to a set-off in the amount paid by Herbstreith.

August 11, 2000

6aff5fae-9bf4-4705-a598-e40dad7e1b15

Ex Parte Breitsprecher

772 So. 2d 1125

1981712

Alabama

Alabama Supreme Court

772 So. 2d 1125 (2000) Ex parte Tracy S. BREITSPRECHER. (Re Tracy S. Breitsprecher v. Stevens Graphics, Inc.) 1981712. Supreme Court of Alabama. May 19, 2000. *1127 David Madison Tidmore of Cory, Watson, Crowder & DeGaris, P.C., Birmingham, for petitioner. Craig A. Alexander of Lange, Simpson, Robinson & Somerville, L.L.P., Birmingham, for respondent. JOHNSTONE, Justice. Tracy S. Breitsprecher appeals a summary judgment entered in favor of Stevens Graphics, Inc., her employer, and against Breitsprecher on her claim of constructive retaliatory discharge. We reverse and remand the summary judgment on this cause of action. On May 8, 1996, Breitsprecher sued Stevens Graphics for workers' compensation benefits and for damages for constructive retaliatory discharge. In Count I of the complaint, Breitsprecher alleged that, on or about July 7, 1995, she suffered an on-the-job injury or occupational disease arising out of and in the course of her employment. She claimed that her "ears, nose, throat, and body" were injured while she was employed as a quality auditor for Stevens Graphics. In Count II of the complaint, Breitsprecher alleged that, on or about July 7, 1995, Stevens Graphics constructively discharged her from her job in retaliation for her filing her claim for workers' compensation benefits, in violation of § 25-5-11.1, Ala.Code 1975. After filing an answer to the complaint, Stevens Graphics moved to sever Breitsprecher's claim for workers' compensation benefits from her claim for damages for constructive retaliatory discharge. The trial court granted the severance. On February 25, 1998, after some discovery, Stevens Graphics moved for summary judgment on Breitsprecher's constructive retaliatory discharge claim. In support of its motion, Stevens Graphics attached a letter from Dr. H.W. Loveless, Jr., the physician treating Breitsprecher; a resignation letter dated June 23, 1995, from Breitsprecher to her supervisor Jack Sollenberger; a portion of Breitsprecher's deposition testimony; and a portion of Dr. Loveless's deposition testimony. Most significant was her resignation letter which read: Additionally, Stevens Graphics attached a legal memorandum arguing that Breitsprecher's constructive retaliatory discharge claim was invalid because Breitsprecher was not "willing and able to work at Stevens Graphics when she resigned." Breitsprecher did not file an immediate response to Stevens Graphics's summary judgment motion. On March 26, 1998, the trial court entered a summary judgment in favor of Stevens Graphics. Breitsprecher moved to reconsider the trial court's entry of summary judgment. In support of her motion to reconsider and in opposition to Stevens Graphics's motion for a summary judgment, Breitsprecher submitted evidentiary materials and a brief. In her brief, Breitsprecher contended that, after she asserted a claim for workers' compensation benefits for her on-the-job injury, her supervisor harassed her by placing her on probation and requiring her to meet with him monthly to discuss her work absenteeism caused by her injury. Breitsprecher's evidentiary materials included a portion of her deposition testimony; a portion of her supervisor Jack Sollenberger's deposition testimony; a copy of the first report of her injury made to Stevens Graphics on May 5, 1994; a letter from Dr. Loveless stating *1128 that Breitsprecher's headaches and her problems with her sinuses and ears were caused by her work environment; and an affidavit from Breitsprecher stating that her chronic problems with her sinuses, ears, nausea, and headaches were caused by her work environment; that she was harassed by her supervisor after she claimed workers' compensation benefits for her injury, and that she was "ready, willing, and able to do [her] former job." Stevens Graphics did not make any objection before the trial court to Breitsprecher's having waited until after the original entry of summary judgment to submit her materials in opposition. Pursuant to Breitsprecher's motion to reconsider, the trial court set aside its March 26, 1998, judgment in favor of Stevens Graphics. However, after considering the materials Breitsprecher submitted in opposition to Stevens Graphics's motion for summary judgment, the trial court again entered a summary judgment in favor of Stevens Graphics.[1] The following pertinent facts were before the trial court for its reconsideration of the motion for summary judgment. In 1992, when Breitsprecher's office was relocated above the printing presses at Stevens Graphics, she began suffering from frequent sinus infections, allergic rhinitis, ear infections, and headaches. Breitsprecher told Stevens Graphics that her treating physician recommended that an air purifier be placed in her office, but Stevens Graphics did not give Breitsprecher an air purifier until sometime in 1995. On April 4, 1994, Dr. Loveless determined that Breitsprecher's sinus and ear problems were related to her exposure to volatile solvents used in her work environment. Breitsprecher formally reported her problems to Stevens Graphics's safety supervisor in a "First Report of Injury or Occupational Disease" form on May 5, 1994. She claimed that she was "experienc[ing] allergy attacks brought on by dust and fumes in the printing plant." Stevens Graphics did not investigate Breitsprecher's claim. Because of her frequent allergy and sinus problems, Breitsprecher missed a number of days from work. After Breitsprecher began missing work, her supervisor, Jack Sollenberger, singled her out and began meeting with her on a monthly basis to review her work attendance and work performance. Sollenberger had never conducted such monthly meetings with any other employee before meeting with Breitsprecher on a monthly basis. Sollenberger had never observed any problems with Breitsprecher's attendance before she began to experience frequent allergy and sinus problems. In fact, Sollenberger stated Breitsprecher's work performance was "excellent." On July 7, 1995, Breitsprecher resigned from her job "[d]ue to the persistent medical problems caused by the chemicals at Stevens Graphics." In her deposition testimony, Breitsprecher stated that she "had no choice but to resign" because she "suffered from chronic sinus, ear, nausea, and headache symptoms and had been singled out and harassed and could no longer tolerate working there." The record before us includes transcribed testimony given by Breitsprecher at the workers' compensation trial months after the conclusion of the trial court's proceedings on the motion for summary judgment relating to her constructive retaliatory discharge claim. Specifically, she testified in the later workers' compensation trial that she resigned from her position with Stevens Graphics because she "had so much trouble with the chemicals *1129 there." The trial court awarded Breitsprecher workers' compensation benefits in the sum of $2,377.75 and unpaid medical expenses in the sum of $608.50, following the bench trial. Stevens Graphics argues that this testimony, introduced to obtain these workers' compensation benefits, estops Breitsprecher from maintaining that she resigned because of harassment. Stevens Graphics cites Luna v. Dominion Bank of Middle Tennessee, 631 So. 2d 917 (Ala.1993), and Consolidated Stores, Inc. v. Gargis, 686 So. 2d 268 (Ala.Civ.App.), cert. denied, 686 So. 2d 278 (Ala.1996). Because this later workers' compensation trial testimony was not before the trial court for its consideration in the summary judgment proceedings however, it cannot be considered in our appellate review, even though it conflicts with Breitsprecher's deposition testimony and her affidavit considered by the trial judge in the summary judgment proceedings. Moreover, because this inconsistent workers' compensation trial testimony postdates the summary judgment proceedings on Breitsprecher's constructive retaliatory discharge claim, this inconsistent testimony cannot be validly argued to have estopped Breitsprecher's position in the summary judgment proceedings. See Luna, 631 So. 2d at 918 (stating that the doctrine of judicial estoppel "preclude[s] a party from assuming a position in a legal proceeding inconsistent with a position previously asserted"). The inconsistent workers' compensation trial testimony was not previous to the position taken by Breitsprecher in her deposition, her affidavit, or her argument for the summary judgment proceedings on her constructive retaliatory discharge claim. On the other hand, upon a remand of this case for further proceedings on Breitsprecher's constructive retaliatory discharge claim, and in the event of a renewal of the motion for summary judgment, this inconsistent workers' compensation trial testimony would constitute good cause for filing such renewed motion for summary judgment and would constitute a position taken previously to such renewed summary judgment proceedings. An estoppel argument by Stevens Graphics in such a new posture of the case would not be foreclosed by the decision we make today in the present posture of the case. The issues before this Court with the case in its present posture are, first, whether Breitsprecher presented substantial evidence that Stevens Graphics constructively retaliatorily discharged her and, second, whether the willing-and-able-to-work doctrine forecloses her claim. Appellate review of a trial court's ruling on a motion for summary judgment submitted on exhibits and written evidentiary materials is de novo, with no deference to the decision by the trial court. Young v. La Quinta Inns, Inc., 682 So. 2d 402 (Ala. 1996). The appellate court will accept the tendencies of the evidence most favorable to the nonmoving party and will resolve all reasonable doubts in favor of the nonmoving party. System Dynamics Int'l, Inc. v. Boykin, 683 So. 2d 419 (Ala.1996). Breitsprecher presented substantial evidence to support her claim of constructive retaliatory discharge. To establish a claim of retaliatory discharge, an employee must present substantial evidence that he or she was terminated from his or her job for seeking workers' compensation benefits. Twilley v. Daubert Coated Products, Inc., 536 So. 2d 1364 (Ala. 1988); and see § 25-5-11.1, Ala.Code 1975. An employee is "terminated" if he or she is either fired or "constructively discharged." Id. To establish a claim of "constructive discharge," an employee must present substantial evidence that his or her "employer deliberately [made] [the] employee's working conditions so intolerable that the employee [was] forced into an involuntary resignation." Irons v. Service Merchandise Co., 611 So. 2d 294, 295 (Ala.1992) (citations omitted, and emphasis added.) Breitsprecher's deposition testimony and her affidavit showed that Stevens Graphics neglected her complaints about her working *1130 environment. After Breitsprecher formally reported her work-related medical problems, Stevens Graphics placed her on probation and made her attend monthly meetings to review her work attendance and work performance even though her work performance was excellent and her absenteeism was primarily related to her sinus problems. Stevens Graphics did not require any of its other employees to attend monthly meetings to discuss their work attendance and performance. Breitsprecher's evidence established that she resigned because harassment by Stevens Graphics, coupled with her persistent medical problems, made her employment with Stevens Graphics intolerable. When all reasonable doubts are resolved in favor of Breitsprecher, the tendencies of the evidence most favorable to her in the summary judgment proceedings established that, but for the harassment, she would not have resigned, and the harassment forced her to resign involuntarily. This Court recently explained the willing-and-able-to-work doctrine, which defines the significance of an employer's claim that an ex-employee suing for retaliatory discharge is not willing and able to work. Bleier v. Wellington Sears Co., 757 So. 2d 1163 (Ala.2000), overruling Consolidated Stores, Inc. v. Gargis, 686 So. 2d 268 (Ala.Civ.App.), cert. denied, 686 So. 2d 278 (Ala.1996), and its progeny. See also McCrary v. REF Alabama, Inc., 757 So. 2d 421 (Ala.2000). Bleier held that the ex-employee's being willing and able to return to work is not an essential element of the cause of action for retaliatory discharge. Thus the ex-employee need not prove willingness and ability to work as part of his or her prima facie case. Bleier held, rather, that the ex-employee's being not willing and able to work may be asserted defensively by the employer either to establish the employer's nonretaliatory reason for discharging the employee or to reduce or to eliminate the damages the employee can recover in the retaliatory discharge action. 757 So. 2d at 1166. In the case before us, the employer Stevens Graphics contends that the employee Breitsprecher resigned her job and that Stevens Graphics did not discharge her at all. Thus Stevens Graphics cannot consistently assert a defense that it discharged Breitsprecher for the nonretaliatory reason that she was not willing and able to work. Nor did the evidence against Breitsprecher's willingness and ability to work conclusively eliminate the essential element of damages from her retaliatory discharge claim. When all reasonable doubts are resolved in favor of Breitsprecher, the tendencies of the evidence most favorable to her established that her physical condition only in combination with the harassment by Stevens Graphics caused her resignation, that her physical condition by itself did not render her unwilling or unable to work, and that, but for the harassment, she would have and could have kept her job and done her work. Indeed, her affidavit expressly swears that she was willing and able to work. Therefore, the trial court erred in entering a summary judgment in favor of Stevens Graphics, and the Court of Civil Appeals erred in affirming the judgment of the trial court. Accordingly, we reverse the judgment of the Court of Civil Appeals and remand this action for that court to remand it to the trial court. Upon remand to the trial court, Stevens Graphics is not precluded from asserting, either in a second motion for summary judgment or at trial, its defense of estoppel based upon Breitsprecher's workers' compensation testimony given after the previous proceedings on the motion for summary judgment made the basis of this appeal. REVERSED AND REMANDED. HOOPER, C.J., and HOUSTON, LYONS, BROWN, and ENGLAND, JJ., concur. MADDOX and SEE, JJ., dissent. [1] The trial court did not issue a written order stating its reasons for entering summary judgment in favor of the defendant. The Court of Civil Appeals affirmed the judgment of the trial court without opinion on the authority of Consolidated Stores, Inc. v. Gargis, 686 So. 2d 268 (Ala.Civ.App.), cert. denied, 686 So. 2d 278 (Ala.1996); Keystone Foods Corp. v. Meeks, 662 So. 2d 235 (Ala.1995); Grider v. McKenzie, 659 So. 2d 612 (Ala.Civ.App.1994); and Continental Eagle Corp. v. Mokrzycki, 611 So. 2d 313 (Ala.1992).

May 19, 2000

6bf52a12-bce5-4662-aadf-c0092c73326f

Brakefield v. Hocutt

779 So. 2d 1165

1982009

Alabama

Alabama Supreme Court

779 So. 2d 1165 (2000) Marion BRAKEFIELD, as executrix of the estate of A.M. Hocutt, deceased v. Bertie P. HOCUTT. 1982009. Supreme Court of Alabama. May 26, 2000. Rehearing Denied September 1, 2000. Daniel H. Markstein III and James P. Naftel II of Maynard, Cooper & Gale, P.C., Birmingham, for appellant. Thomas Reuben Bell, Sylacauga, for appellee. SEE, Justice. Marion Brakefield, as executrix of the estate of Alfred Marion Hocutt, appeals *1166 from the circuit court's determination of the amount of the surviving spouse's elective share and its award of a family allowance to the surviving spouse. Because we hold that the circuit court erred in the manner in which it calculated the elective share, but did not abuse its discretion in awarding a family allowance, we affirm in part, reverse in part, and remand. Alfred Marion Hocutt died in February 1998. He left a will, dated January 1991, in which he named his daughter, Marion Brakefield, as executrix of his estate, and in which he attempted to provide for his wife, Bertie Hocutt, primarily through a marital trust to be funded by estate assets in excess of the amount of the decedent's unified credit under 26 U.S.C. § 2010(c). At the time of his death, however, the estate was insufficient to fund the marital trust. Therefore, Mrs. Hocutt claimed her elective share of his estate. See Ala.Code 1975, § 43-8-70. She also exercised her rights to a $6,000 homestead allowance, see Ala.Code 1975, § 43-8-110, and $3,500 in exempt property, see Ala.Code 1975, § 43-8-111, and sought and received a family allowance of $6,000, the maximum allowable amount, see Ala.Code 1975, §§ 43-8-112, -113. The circuit court calculated Mrs. Hocutt's elective share by deducting the homestead allowance, exempt property, and family allowance from the gross amount of Mr. Hocutt's estate, then dividing that amount by three. See Ala.Code 1975, § 43-8-70(a) ("[T]he elective share shall be the lesser of: (1) All of the estate of the deceased reduced by the value of the surviving spouse's separate estate; or (2) One-third of the estate of the deceased."). Thus, in calculating Mrs. Hocutt's elective share, the circuit court did not take into consideration any of the other claims against the estate. Brakefield argues that in addition to the homestead allowance, exempt property, and family allowance, the circuit court should have deducted the allowable claims against the estate before determining Hocutt's elective share. We agree. As this Court explained in Barksdale v. Barksdale, 551 So. 2d 1006 (Ala.1989), the proper method of calculating the surviving spouse's elective share is to deduct the homestead allowance, exempt property, family allowance, "and allowed claims against the estate" from the decedent's total estate, then divide the remaining amount by three. 551 So. 2d at 1008. To hold otherwise would exempt the surviving spouse's elective share from, and give it priority over, the claims of creditors and other allowable claims against the estate, notwithstanding that the statute providing for the elective share, unlike the statutes providing for the homestead allowance,[1] exempt property,[2] and family allowance,[3] does not manifest an intention to do so. See Ala.Code 1975, § 43-8-70(a). Mrs. Hocutt, relying on Garrard v. Lang, 514 So. 2d 933 (Ala.1987), argues that her elective share has priority over, and is exempt from, the allowable claims against the estate. In Garrard, this Court stated in dictum that "[t]he rights to elective share and exemptions are not tied to solvency." 514 So. 2d at 934. While it is true that a surviving spouse has the right to claim an elective share of the estate of his or her deceased spouse, irrespective of the financial status of the estate, the value of the surviving spouse's elective share can be zero where the estate does not have *1167 sufficient assets to satisfy the allowable claims. Brakefield argues that the circuit court abused its discretion in awarding Mrs. Hocutt a family allowance. We disagree. The personal representative may award a surviving spouse "a reasonable allowance in money out of the estate for [her] maintenance during the period of administration." Ala.Code 1975, § 43-8-112. If the personal representative refuses to award a family allowance, then the aggrieved party may seek relief from the court. See Ala.Code 1975, § 43-8-113. The circuit court's award of a family allowance will be affirmed unless there is no evidence to support the award. See Kynard v. Norfleet, 681 So. 2d 631 (Ala.Civ. App.1996). Mrs. Hocutt testified that she had had substantial expenses, including medical expenses and home-care expenses relating to the amputation of one of her feet and problems with the other. Although Mrs. Hocutt did have independent sources of income, we cannot conclude that the circuit court abused its discretion in awarding her a family allowance. Because the circuit court erred in determining the amount of Mrs. Hocutt's elective share, we reverse that portion of the circuit court's judgment. Because the circuit court did not abuse its discretion in awarding Mrs. Hocutt a family allowance, we affirm that portion of the circuit court's judgment. We remand the case for further proceedings consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] "The homestead allowance is exempt from and has priority over all claims against the estate." Ala.Code 1975, § 43-8-110. [2] "Rights to exempt property ... have priority over all claims against the estate...." Ala. Code 1975, § 43-8-111. [3] "The family allowance is exempt from and has priority over all claims but does not have priority over the homestead allowance." Ala. Code 1975, § 43-8-112.

May 26, 2000

f67e8655-5a28-413f-85e1-0210974fc026

Ex Parte Pardue

797 So. 2d 409

1980254

Alabama

Alabama Supreme Court

797 So. 2d 409 (2000) Ex parte Michael Rene PARDUE. (Re Michael Rene Pardue v. State). 1980254. Supreme Court of Alabama. March 10, 2000. Dissenting Opinion on Overruling of Rehearing May 12, 2000. Bruce M. Berman and Sara Needleman Kline of Wilmer, Cutler & Pickering, Washington, D.C.; and E. Barry Johnson of Sirote & Permutt, P.C., Birmingham, for petitioner. Bill Pryor, atty. gen., and Robin Blevins, asst. atty. gen., for respondent. COOK, Justice. Michael Rene Pardue was arrested and charged with robbery on July 28, 1978. On August 15, 1978, through his counsel, Pardue filed notice with the district court of his intention to enter a guilty plea. The district court accepted Pardue's plea on August 18, 1978, and entered a judgment of conviction.[*] The district court then *410 sentenced Pardue to 10 years in prison. Pardue did not appeal his conviction. On October 5, 1997, Pardue filed a Rule 32, Ala. R.Crim. P., petition for postconviction relief in Mobile County. The petition was denied and Pardue appealed to the Court of Criminal Appeals. On August 14, 1998, the Court of Criminal Appeals affirmed the denial of the petition, without opinion. Pardue v. State, 741 So. 2d 485 (Ala.Crim. App.1998) (table). We granted Pardue's petition for certiorari review. He asks this Court to reverse the judgement of the Court of Criminal Appeals. He argues that his conviction and sentence were improper, contending that the district court had lacked jurisdiction to accept his plea, because of the provisions of § 15-15-22, Ala.Code 1975. Section 15-15-22 states: We must answer this question: Do the three days referred to in § 15-15-22 begin to run on the day notice is given to the court (i.e., is the day notice is given the first day of the three days), or is the first day of that three-day period the day after notice is given to the court? If the three-day period begins on the day after notice is given, then we must consider whether the court may accept the plea on the third day. In answering these questions, we are guided by long-established precedent. In Headen v. Headen, 171 Ala. 521, 530, 54 So. 646, 649 (1911), for example, this Court stated: Thus, the first day of the three-day period was August 16, the day after Pardue gave notice to the court; the third day of the period was August 18. Now, we must consider whether the district court could properly accept Pardue's plea on August 18, that third day. We conclude that it could not. Headen states that "where it is provided that an act can be done after the expiration of so many days from an act or event"and this is the situation provided for by the three-day rule of § 15-15-22 "the act cannot be done until the prescribed number of entire days has expired." 171 Ala. at 530, 54 So. at 649. The State cites State v. Baker, 268 Ala. 410, 108 So. 2d 361 (1959), and Patrick v. State, 43 Ala.App. 620, 197 So. 2d 782 (1967), in support of its argument that the day a defendant gives notice of an intent to plead guilty should be counted in the computation of the three days. Using that approach, the State argues that Pardue entered his guilty plea on the fourth day. *411 Neither of those cases, however, supports the State's argument. In Baker, the defendant pleaded guilty on the same day he gave notice that he intended to plead guilty. This Court concluded that the guilty plea was not entered in accordance with the statute. The Court also addressed the State's argument that the statute was not mandatory, but directory: Baker, 268 Ala. at 412-13, 108 So. 2d at 363. In Patrick, the defendant was charged on May 17, 1951, and warrants for his arrest were issued that date. The defendant was arrested, and on May 29, 1951, the 12th day after the warrants had been issued, the defendant, after having pleaded guilty, was sentenced. The Court of Appeals reasoned: Patrick, 43 Ala.App. at 621, 197 So. 2d at 783. Neither Baker nor Patrick determines which days are counted as the first day and the last day of the 15-day period dealt with in those two cases. Neither case helps in determining the meaning of the statutory language involved in the present case, language stating that a plea of guilty shall not be taken "within three days after notice to the court of [a defendant's] intention to plead guilty." Pardue argues that the statute requires that three full 24-hour days pass between the date a defendant gives notice of an intention to plead guilty and the day on which his guilty plea is taken. We agree. The word "within," as it is used in the statute, is defined by Merriam Webster's Collegiate Dictionary (10th ed.1997) as "a function word [used] to indicate enclosure or containment." Consistent with this Court's ruling in Headen, supra, we conclude that § 15-15-22providing that the date of the plea "shall not be ... within three days after notice"requires that three full days pass between the date the defendant gives notice of his intention to plead guilty and the date the court takes the plea. Thus, we conclude that the three-day period that had to pass before the court could accept Pardue's guilty plea began on August 16, 1978, the day after Pardue gave notice that he intended to plead guilty, and that the last day of that period was August 18, 1978. Pardue, therefore, could have entered a plea of guilty in accordance with the statute on August 19, 1978. The district court erred in accepting Pardue's plea on August 18, 1978. Therefore, Pardue's conviction and sentence are due to be vacated. The judgment of the Court of Criminal Appeals is *412 reversed, and the cause is remanded for the entry of an order consistent with this opinion. REVERSED AND REMANDED. MADDOX, HOUSTON, SEE, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. BROWN, J., recuses herself.[**] COOK, Justice. APPLICATION FOR REHEARING OVERRULED. HOOPER, C.J., and MADDOX, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. HOUSTON and SEE, JJ., dissent. BROWN, J., recuses herself.[**] HOUSTON, Justice (dissenting). Upon a more serious reflection and review of cases involving guilty pleas and in which I voted, I am persuaded that my initial vote was wrong. A guilty plea waives a number of substantive rights that cannot later be argued on appeal. Some of the substantive rights that all defendants waive by pleading guilty are described in Rule 14.4(a)(1)(vi) and (vii), Ala. R.Crim. P.: When the State brings a charge against a defendant by an information, Ala.Code 1975, § 15-15-22, requires the trial court to wait three days from the time it receives notice that a defendant has chosen to plead guilty before it allows the defendant to enter the guilty plea. The legislative purpose for requiring a defendant to wait three days can only be for the benefit of the defendant. Judicial efficiency is not improved by slowing down the process three days. The purpose can only be to allow the defendant time to reflect upon the guilty plea. As with the more substantive rights listed above, if a defendant chooses to waive his entitlement to this three-day period and to enter a guilty plea sooner, then it is not for the trial court to force the defendant to enjoy the benefit of the statute. By pleading guilty on the third day instead of the fourth day, Pardue waived the three-day waiting period and waived his right to trial. Pardue voluntarily submitted to the court's jurisdiction and should not be allowed, by a petition filed over 19 years later, to overturn that conviction because of a failure to wait another 24-hour period, a failure that in no way would have inured to the benefit of the State or the trial court. SEE, J., concurs. [*] Note from the reporter of decisions: The case action summary sheet in case no. DC-78-2264, Mobile District Court, indicates that in that case Pardue was originally charged with robbery. It further indicates, however, that on August 18, 1978, the court granted "a motion to add Ct. 2: Grand Larceny," and that on August 18, 1978, Pardue "pleaded guilty to Ct. 2." [**] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

May 12, 2000

30a0d7ad-7d91-41c0-a804-3fdfd5615c93

Sisters of Visitation v. COCHRAN PLASTERING CO. INC.

775 So. 2d 759

1981513

Alabama

Alabama Supreme Court

775 So. 2d 759 (2000) SISTERS OF the VISITATION v. COCHRAN PLASTERING COMPANY, INC. 1981513. Supreme Court of Alabama. March 10, 2000. Application for Rehearing Overruled May 26, 2000. Thomas E. Sharp III of Vickers, Riis, Murray & Curran, L.L.C., Mobile, for appellant. James P. Green and Thomas H. Nolan, Jr., of Brown, Hudgens, P.C., Mobile, for appellee. *760 LYONS, Justice. The Sisters of the Visitation (hereinafter usually "the Sisters") appeal from the trial court's order enjoining the arbitration proceeding initiated by the Sisters in a dispute with Cochran Plastering Company, Inc. (hereinafter "Cochran"). The Sisters of the Visitation is a Catholic religious order that owns and operates a monastery and spiritual retreat in Mobile. The Sisters began a restoration project to repair and restore the chapel at the Visitation Monastery. The Sisters engaged the services of Hall Baumhauer Architects, P.C., an Alabama company, and entered into contracts directly with contractors, from Alabama and several other states, within specific trades included in the scope of work for the project. The Sisters entered into a contract with Cochran, an Alabama company, for Cochran to repair cracks in the plaster in the ceilings and wall of the chapel, to cast and install plaster moldings, and to pin up all loose moldings with screws and washers. This contract included an arbitration provision, pursuant to which the Sisters filed a demand for arbitration; in the demand for arbitration, the Sisters claimed that Cochran had negligently damaged decorative paintings on the surface of the chapel ceilings and wall and that Cochran had failed to complete its work. The Sisters claimed a total of $525,000 for restoration of paintings they claimed Cochran had damaged and $50,000 for the completion of the repair work. Cochran filed an action in the circuit court for an injunction to stop the arbitration proceeding, claiming that the arbitration provision is unenforceable, pursuant to Ala.Code 1975, § 8-1-41(3), because, it argues, the contract between it and the Sisters did not involve interstate commerce. Cochran further contends that the Sisters' claims are precluded by the clause in the arbitration provision that specifically exempts from arbitration claims relating to "aesthetic effect." The issues raised on appeal are: (1) whether the arbitration clause in the contract between the Sisters and Cochran is made enforceable by the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq., and (2) whether the claims made by the Sisters against Cochran constitute claims relating to "aesthetic effect," which are expressly excluded from the operation of the arbitration clause. Because we affirm the trial court's order enjoining the arbitration proceedings, we do not reach the second issue, concerning the scope of the arbitration agreement. The FAA, at 9 U.S.C. § 1, defines "commerce," as that term is used within the FAA, as including "commerce among the several States or with foreign nations." Section 2 declares arbitration agreements in "a contract evidencing a transaction involving commerce" to be valid and enforceable, "save upon such grounds as exist at law or in equity for the revocation of any contract." In Allied-Bruce Terminix Companies v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995) ("Terminix"), the United States Supreme Court held that for an arbitration clause to be enforceable under the FAA the transaction to which the contract relates must turn out, in fact, to involve interstate commerce, regardless of the contemplation of the parties. Id. at 278, 115 S. Ct. 834. The United States Supreme Court, in United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), considered the extent of interstate involvement an activity must have in order for it to be within the bounds of Congress's authority under the Commerce Clause of the United States Constitution. The Supreme Court decided Lopez shortly after it had decided Terminix. In Lopez, the Court, for the first time in 60 years,[1] struck down an act of Congress (the Gun-Free School Zones *761 Act[2]) on the basis that the act exceeded Congress's Commerce Clause authority. In Lopez, Chief Justice Rehnquist broke down the previous Commerce Clause cases into three categories of things that Congress has regulated under that clause: channels of interstate commerce (by laws freeing channels of commerce from discrimination, immoral activities, etc.); instrumentalities of interstate commerce (by laws regulating safety of vehicles used in interstate commerce); and activities having a substantial relation to commerce. Lopez, 514 U.S. at 558-59, 115 S. Ct. 1624. After establishing those categories, the Chief Justice acknowledged an absence of clarity in the cases dealing with the question whether, for an activity to be subject to Congressional regulation under the Commerce Clause, the activity must "affect" or must "substantially affect" interstate commerce. Id. at 559, 115 S. Ct. 1624. One attempting to clarify the area of the law in which that question arises must consider Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942). In that case, an Ohio farmer raised wheat on 23 acres of land. He consumed most of the wheat on his farm, either by feeding it to livestock, making flour for personal use, or using it to produce seeds for future crops. The Secretary of Agriculture assessed a penalty against the farmer for exceeding by 12 acres his allotment under a federal statute regulating wheat production. The Supreme Court upheld the assessment, holding that the Congress's limitation of the farmer's wheat production was a valid exercise of its authority under the Commerce Clause to regulate interstate commerce. Unless Wickard is either overruled or read narrowly, very little that occurs in this country can be viewed as not having some involvement with interstate commerce. The Court in Lopez, after reviewing Wickard, acknowledged that it was inappropriate to make an excessively elastic application of the Commerce Clause. It stated that for an economic activity to come within Congress's authority under the Commerce Clause the activity must "substantially affect" interstate commerce. 514 U.S. at 559, 115 S. Ct. 1624.[3] The Lopez Court referred to the requirement of a substantial effect as generally applicable to regulation of economic activity. Id. at 560, 115 S. Ct. 1624. That broad reference, albeit dictum, does not suggest that the requirement of a substantial effect would not apply to the question whether a particular contract is subject to the FAA. We have recently embraced the concept that the Lopez requirement of a substantial effect governs the question whether a particular contract has a sufficient connection with interstate commerce to be governed by the FAA.[4] See Southern *762 United Fire Ins. Co. v. Knight, 736 So. 2d 582 (Ala.1999) (Houston, Kennedy, Lyons, Brown, and Johnstone, JJ., concurring; See, J., concurring specially; Cook, J., concurring in the result; and Hooper, C.J., and Maddox, J., dissenting); and Rogers Foundation Repair, Inc. v. Powell, 748 So. 2d 869 (Ala.1999) (Hooper, C.J., and Maddox, Cook, Brown, Johnstone, and England, JJ., concurring; See, J., concurring specially; Lyons, J., concurring in two of the three cases addressed in that opinion and concurring in the result in the third; and Houston, J., concurring in two of the cases). The Chief Justice, in his dissent, relies on a case decided December 2, 1999, In re L & L Kempwood Associates, L.P., 9 S.W.3d 125 (Tex.1999), as supporting his view that the Lopez requirement of a substantial effect on interstate commerce does not apply to arbitration cases arising under the FAA. The Chief Justice quotes that part of the L & L Kempwood opinion in which the Supreme Court of Texas states that "[t]he other courts to consider this issue of which we are aware have [agreed with the view that Lopez did not restrict the scope of the FAA]." 9 S.W.3d at 127 (quoted infra at 775 So.2d 771). The Texas Supreme Court's footnote to that statement cites just two cases. One was a case from the Texas Court of Appeals in Fort Worth, Palm Harbor Homes, Inc. v. McCoy, 944 S.W.2d 716 (Tex.App.-Fort Worth 1997, orig. proceeding); the other was this Court's four-Justice opinion in Hurst. It overlooks a case decided November 23, 1999, In re Turner Brothers Trucking Co., 8 S.W.3d 370 (Tex.App.-Texarkana 1999) (a case from another Texas Court of Appeals), which stated: "[944 S.W.2d] at 720. 8 S.W.3d at 375-76 (emphasis added). We prefer the reasoning of the court in Turner Brothers Trucking, a decision of which the Supreme Court of Texas was clearly unaware when it decided L & L Kempwood, which was released just a few days after Turner Brothers Trucking was decided. In Lopez, the Court cited NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S. Ct. 615, 81 L. Ed. 893 (1937), in which the Supreme Court had warned that the scope of the Commerce Clause Lopez, 514 U.S. at 557, 115 S. Ct. 1624. Considering that the "complex society" in 1937, when Jones & Laughlin Steel was decided, judged by comparison to contemporary society, based, as it is, on a much more advanced technology, was perhaps slightly more than quaint, the danger the *764 Court saw then has been multiplied today many times over. Because Wickard was by no means overruled in Lopez, we must consider it in depth. The Agricultural Adjustment Act of 1938 had as one of its primary purposes increasing the market price of wheat by reducing the supply. Exempting all home-consumed wheat from the operation of the Act would substantially influence the Government's efforts to control supply and thereby to control price. Wickard, 317 U.S. at 128, 63 S. Ct. 82. Viewing Wickard in this light, we conclude that the question whether the actions of an individual, which actions standing alone would be considered "local" actions or actions with only an "indirect" influence on interstate commerce, may be considered to have a substantial influence on interstate commerce is to be determined by considering how critical the regulation of all similarly situated persons' activity is to the accomplishment of the primary purpose of a statute drawn to regulate an activity clearly having a substantial effect on interstate commerce. Id. The obvious primary purpose of the FAA is to make enforceable arbitration agreements appearing in contracts "evidencing a transaction involving commerce." Will it defeat the primary purpose of the FAA if some transactions occurring in today's complex society, although they have some "indirect or remote" effect upon interstate commerce, escape the sweep of the FAA? Put another way, even if those transactions are not subject to the FAA, will there remain a substantial body of transactions as to which the FAA will apply and as to which the Congressional purpose will be achieved? Or, on the other hand, will bringing those transactions within the scope of the FAA "obliterate the distinction between what is national and what is local"? See Jones & Laughlin Steel, 301 U.S. at 37, 57 S. Ct. 615. One cannot seriously argue that unless all transactions, some of which by themselves might have only a local influence or at most an indirect connection to interstate commerce, come within the scope of the FAA, that Act will become some sort of scarecrow, lacking substance and a field of operation, so that Congress's primary purpose will be defeated. Such an expansive application of the FAA would tend to defeat the doctrine of federalism, making that doctrine a hollow shell. To recognize such a wide sweep of federal authority would stifle the States' interest in, or efforts toward, developing creative solutions to other common problems. Alabama has a robust alternative-dispute-resolution program whereby trial judges routinely call on the parties to a lawsuit to attempt to resolve their differences with the aid of a mediator, whose proposals are not binding on the parties. Whether this alternative-dispute-resolution approach is superior to arbitration is not the issue; rather, the question is whether the Commerce Clause should tolerate a State's efforts, in regard to transactions having a less-than-substantial effect on interstate commerce, to try solutions other than those that catch the fancy of Congress. Developing a test for determining whether a particular contract has a substantial effect on interstate commerce is challenging, but it is essential, because we cannot appropriately say of such an effect, as Justice Stewart suggested we might be able to say of hard-core pornography, "I know it when I see it." Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964) (Stewart, J., concurring). We can start with a description of a transaction that one almost intuitively finds lacking the effect on interstate commerce that the Framers contemplated and, then, through a process of reverse engineering, break it down into components and thereby develop a set of standards. Consider a hypothetical transaction involving a farmer who owns a tractor that he purchased from a local dealer. The farmer earns a substantial portion of his annual income through contracts with other local landowners, contracts calling for *765 him to use the tractor to mow their pasture land and to occasionally rake and burn limbs, leaves, and grass clippings. He purchases gasoline to operate the tractor and diesel fuel to start the trash fires. The other landowners have crops that they regularly harvest and ship in interstate commerce, but this farmer is not involved in any activity relating to those crops other than his clearing the land so that the others might thereafter plant their crops. One can hardly say that to permit this farmer's transactions and those of all persons similarly situated to escape the sweep of the FAA would frustrate the primary purpose of that Act. A substantial universe of contracts would remain within the scope of the FAA even if this class of transactions is set outside that scope, and by setting these transactions outside that scope what is local would remain local and would escape control by a centralized government. This hypothetical transactionan agreement by the farmer to do work for another local landownermight contain the following components: (1) a contract solely between two local parties, both of them engaging in activities that do not involve any person or entity in another State; (2) tools and equipment, which, although they moved in interstate commerce, were not purchased or leased solely for the farmer to perform the particular contract at issue; (3) substantially more than half of the amount paid to the farmer by the other landowner is allocable to the cost of the services rendered by the farmer, who renders those services without using persons or entities from another State, while substantially less than half of the amount paid is allocable to the cost of materials specially purchased for use or consumption in the farmer's performance of the contract; (4) the object of the services is incapable of subsequent movement across State lines or otherwise having a subsequent substantial effect on interstate commerce; (5) such a degree of separability from any contracts that are subject to the FAA that allowing this contract to remain outside the scope of the Act would not substantially disrupt activities that Congress intended to be subject to the Act. The United States Supreme Court, as previously noted, held in Terminix, supra, that, to be subject to the FAA, a contract must relate to a transaction that in fact involves interstate commerce, even if the parties, when they entered the contract, did not contemplate the involvement with interstate commerce. 513 U.S. at 281, 115 S. Ct. 834. Because it is the Sisters who seek to compel arbitration, they have the burden of proving that the transaction in this case affected interstate commerce. See Transouth Fin. Corp. v. Bell, 739 So. 2d 1110, 1114 (Ala.1999). We look at this transaction in light of these principles.[5] The Sisters of the Visitation and Cochran are both Alabama residents, and the contract was to be performed in Alabama. The only affiliation of any of the parties with out-of-state entities is found in the relationship between the Sisters and the Roman Catholic Church. We are simply not prepared to recognize that relationship as commercial activity in interstate commerce, analogous to the network of Terminix franchises across the country. See Terminix, 513 U.S. at 282, 115 S. Ct. 834. This transaction involves a contract solely between two local parties, each of whom is unaffiliated with an entity involved in interstate commerce. One must assume that Cochran brought tools and equipment to the project site, but the record is silent as to whether they were leased or purchased specially for the project and, if so, whether they had moved in interstate commerce. In connection with this project, a substantial contract for the rental of scaffolding was placed with an out-of-state party; however, it appears that this contract did not involve Cochran but was let directly by the Sisters. No substantial effect on interstate commerce can be developed based on Cochran's acquiring in interstate commerce any tools and equipment to be used in the performance of this contract. We have no indication that Cochran employed out-of-state workers, so we assume that its workers were local. The contract apparently specified the use of plaster and washers that were required to be obtained from outside the State, and it called for insurance, which was obtained from an insurance company from outside the State. However, the record provides no information from which we can determine what portion of the amount the Sisters paid Cochran is allocable to the cost of local labor and overhead and what portion is allocable to materials or services specially purchased for use or consumption in performance of the contract. The Sisters have not presented sufficient evidence to justify the conclusion that Cochran's contract substantially affects interstate commerce by reason of a dependence upon materials and services moving in interstate commerce. The object of the services provided by Cochran is incapable of subsequent movement across state lines or of otherwise having a subsequent substantial effect on interstate commerce. The Sisters contracted with Cochran to perform plaster work in the Visitation Monastery Chapel in Mobile, Alabama. The work to be performed included repairing cracked plaster in the ceilings and walls, installing plaster moldings, and pinning loose moldings. Cochran's work becomes a part of the structure of the Visitation Monastery Chapel and it cannot be detached from the chapel and moved across state lines. The fact that people from out of the State might have visited the site later is too tenuous a connection with interstate commerce. Therefore, we conclude that Cochran's work will not have a subsequent effect on interstate commerce. The Sisters entered into a series of contracts for the restoration of a chapel. The scope of the entire project included installing a fire-alarm system and electrical wiring; filling cracks in plaster walls; pinning up loose plaster moldings on the ceiling of the chapel; restoring painted ornamental decorations on the plaster walls and ceiling following plaster repairs; installing heating, ventilation, and air-conditioning duct-work and equipment; restoring stained glass windows; removing and restoring statuary and framed paintings; and erecting scaffolding covering the entire floor space. The contract with Cochran called for Cochran to perform plaster work pursuant to specifications prepared by a resident of Texas who traveled to Mobile for the purpose of studying the plastering project and writing the specifications for it. Cochran's payment under the contract constituted 10% of the entire cost of the project. Cochran's contract is related to several other contracts, apparently also made directly with the Sisters, including a contract with the architect for the chapel project; contracts with workers in the various trades whose work was called for in the foregoing description of the scope of the work; and a contract with the Texas resident who prepared the specifications *767 for the plaster work. The fact that several of the related contracts have a substantial effect on interstate commerce cannot be seriously disputed. However, we should not hold that the proximity of this particular contract to contracts substantially affecting interstate commerce is determinative, lest we err by expanding the Commerce Clause to the point of "effectually obliterat[ing] the distinction between what is national and what is local." Jones & Laughlin Steel, 301 U.S. at 37, 57 S. Ct. 615. Heeding the Supreme Court's teaching in Terminixthat for a contract to be subject to the FAA the transaction to which the contract relates must turn out, in fact, to involve interstate commercewe must look to the effect Cochran's contract will in fact have on those other contracts that do have a substantial effect on interstate commerce, if Cochran's contract is held to fall outside the reach of the FAA and thus be subject to state-law defenses to the enforcement of arbitration clauses. The record before us does not clearly indicate whether the repair-and-restoration project is complete, although the materials before us refer to costs incurred in corrective work made necessary by Cochran's alleged breach; those references indicate that the project has been completed. In any event, the Sisters do not contend that the delays or distraction attendant to litigation, as opposed to the ostensibly simpler mode of dispute resolution afforded by arbitration, would disrupt the performance of the other contracts that have a substantial effect on interstate commerce. Therefore, recognizing the separability of this economic activity between the Sisters and Cochran does not substantially disrupt those activities that are subject to the FAA, because Cochran's contract cannot be said to substantially affect interstate commerce by reason of its impact on other contracts that do substantially affect interstate commerce. The Sisters have not proven that the transaction substantially affects interstate commerce and, therefore, the contrary rule of the FAA does not displace Ala.Code 1975, § 8-1-41(3), prohibiting the specific enforcement of a predispute arbitration agreement. AFFIRMED. HOUSTON, COOK, JOHNSTONE, and ENGLAND, JJ., concur. BROWN, J., concurs in the result. HOOPER, C.J., and MADDOX and SEE, JJ., dissent. JOHNSTONE, Justice (concurring). I concur entirely in the majority opinion. I write only to emphasize the bearing of constitutional federalism on this case and the bearing of this case on constitutional federalism. While Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995), does hold that Congress intended for the Federal Arbitration Act to reach expansively as far as the Commerce Clause would allow, Congressional intent does not govern the reach of the Commerce Clause itself. The intent of the framers of the United States Constitution determines the reach of the Commerce Clause, and the Federal Arbitration Act cannot reach any further. The case of United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), with its substantial-effect rule, is helpful because it addresses the reach of the Commerce Clause itself rather than the Congressional intent in adopting the Federal Arbitration Act. In other words, conceding that Congress sought to exercise as much power as it possibly could in adopting the Federal Arbitration Act, the expansive intent of the Congress is limited by the Commerce Clause, which should be interpreted, not according to the intent of Congress, but according to the intent of the framers of the United States Constitution. The following quotations from the Federalist Papers are instructive in this regard: The Federalist Number XLIV, at 215-16 (James Madison) (New Ed. 1857). (Emphasis added.) The Federalist Number XLII, at 195-96 (James Madison) (New Ed. 1857). (Emphasis added.) Thus the intended purposes of the Commerce Clause, at least as sensed and expressed by Madison, were principally to prevent interstate rivalries and conflicts, waged by the imposition of tariffs, duties, and other taxes, from impeding foreign commerce and secondarily to prevent such rivalries and conflicts from impeding the trade between and among the states themselves. The Commerce Clause empowers Congress to enact statutes to accomplish these purposes but implicitly limits the reach of such statutes to these purposes. Expressio unius est exclusio alterius. On the other hand, the Tenth Amendment to the United States Constitution provides: As Madison, as already quoted, has explained, The application of Alabama's anti-arbitration statute, § 8-1-41(3), Ala.Code 1975, to the contract between the Sisters and Cochran fits this description of powers reserved to the states. Today's decision obeys these constitutional principles of federalism by following the substantial-effect rule that this Court recognized from Lopez, supra, adopted in Southern United Fire Ins. Co. v. Knight, 736 So. 2d 582 (Ala.1999), and followed in Rogers Foundation Repair, Inc. v. Powell, 748 So. 2d 869 (Ala.1999). The substantial-effect rule honors the purposes of the Commerce Clause but concomitantly honors the reserved powers of the states. The test developed by today's decision honors real meaning in the word substantial. Today's dissents, on the other hand, attack the substantial-effect rule and urge an extreme and absolute rule, variously worded, essentially that any effect on interstate commerce will subject a contract to the Federal Arbitration Act. Such a rule would, in reality, subject all contracts, no matter how small or local, to the Federal Arbitration Act and would thereby violate, and further erode, constitutional principles of federalism. Sufficient discovery, even in the case of a project utilizing only a single workman, would reveal, for example, that he wore boots and overalls manufactured out-of-state; that he had bought them for his work, among other purposes; and, finally, that his work on the project, at least to some extent, caused wear and tear on the overalls and boots and thereby advanced the date when he would need to buy replacements, manufactured out-of-state. Every contract requires or consumes, at least partially, something that has composed at least a minuscule portion *770 of interstate commerce and necessitates, at least partially, a replacement that will compose at least a minuscule portion of interstate commerce. Every contract investigated by accurately aimed and methodically pursued discovery would meet the criterion of the any-effect rule urged by the dissents. If this example be called absurd, a reduction to absurdity is a fair way to analyze any extreme or absolute rule. The dissents do not articulate any test to distinguish this example from the contracts they intend for their any-effect rule to include. Such a rule would eliminate the last constitutional constraints on Congressional interference in the economic lives of Americans and the public policies of the respective states. HOOPER, Chief Justice (dissenting). I must respectfully dissent. I find the majority opinion very disturbing, for several reasons: In its footnote 4, it lightly disregards the appellate rule for overruling precedent; it ignores a clear distinction recognized by the United States Supreme Court between commercial cases and noncommercial cases in the context of interstate commerce; it adopts a bulky and unworkable standard for determining contacts with interstate commerce; and it ignores the facts or diminishes the importance of certain facts in this case. The rationale of the majority opinion is flawed in several respects. First, it is far from clear that the "substantial-effect" standard enunciated in United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), was meant to apply to the parties in this case. The Supreme Court stated in Lopez that the proper test for determining whether Congress has the power to regulate an activity under the Commerce Clause involves an analysis of whether the regulated activity "substantially affects" interstate commerce. 514 U.S. at 559, 115 S. Ct. 1624. However, contrary to the majority's conclusion, the language of Lopez does not mandate a holding that the "substantial-effect" standard applies to this case. The majority states that the Lopez Court referred to the requirement of a substantial effect as generally applicable to the regulation of economic activity, and it concludes that "[t]hat broad reference, albeit dictum, does not suggest that the requirement of a substantial effect would not apply to the question whether a particular contract is subject to the FAA." 775 So. 2d at 761. Had the authority of Congress to enact the FAA been subject to a Commerce Clause challenge, as the statute in Lopez was, the proper standard to use would be whether the legislation regulates economic activity that substantially affects interstate commerce. However, that is not the issue in the present case. The issue is whether the FAA applies to preempt Alabama's statute prohibiting the enforcement of predispute agreements to arbitrate. Section 2 of the FAA provides, in pertinent part: (Emphasis added.) Three months before it decided Lopez, the United States Supreme Court held, in Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 273-74, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995) ("Terminix"), that "the word `involving' is broad and is indeed the equivalent of `affecting.'" Thus, the Court held in Terminix that the FAA applies to "a contract evidencing a transaction involving [or affecting] commerce." 513 U.S. at 273-74, 115 S. Ct. 834. The United States Supreme Court has defined the terms "involving" and "affecting" in the broadest possible way. See Terminix, 513 U.S. at 273, 115 S. Ct. 834; Russell v. United States, 471 U.S. 858, 859, 105 S. Ct. 2455, 85 L. Ed. 2d 829 (1985). Are we to assume *771 that in Lopez the Court forgot to overrule Terminix? In contrast, Lopez involved a challenge to a criminal statute prohibiting the possession of a firearm in a school zone. The Supreme Court held that the Gun-Free School Zones Act of 1990 was beyond the scope of Congress's power under the Commerce Clause because the statute "neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce." 514 U.S. at 551, 115 S. Ct. 1624 (emphasis added). Terminix[6] was decided by the Supreme Court a mere three months before it decided Lopez, yet Lopez made no mention of Terminix when it stated that an activity must "`substantially affect' interstate commerce in order to be within Congress' power to regulate it under the Commerce Clause." 514 U.S. at 559, 115 S. Ct. 1624. Lopez involved a challenge to Congress's authority to pass a statute regulating the possession of guns in school zones. However, the constitutionality of the FAA, a federal statute, has not been challenged in this case. Even if the FAA had been challenged, this Court should find it distinguishable from the criminal statute challenged in Lopez. Unlike the statute involved in Lopez, the FAA contains a "requirement that the [contract] be connected... to interstate commerce."[7] 514 U.S. at 551, 115 S. Ct. 1624. The plain reading of § 2 of the FAA (9 U.S.C. § 2), as well as the Supreme Court's mandate in Terminix, indicates that the FAA preempts contrary state law when an arbitration provision exists in a contract "evidencing a transaction involving [or affecting] commerce." This rationale was utilized by the Supreme Court of Texas in its recent decision in In re L & L Kempwood Associates, L.P., 9 S.W.3d 125 (Tex.1999), wherein the court stated: 9 S.W.3d at 127 (footnotes omitted). I find it intriguing that the Texas Supreme Court cited the opinion in Hurst v. Tony Moore Imports, Inc., 699 So. 2d 1249 (Ala.1997), as authority for the proposition that Lopez did not alter the United States Supreme Court's holding in Terminix. However, it seems that this Court no longer supports the view four Justices held in Hurst, although it has not provided any explanation for the turnaround. *772 Hurst, written less than four years ago, examined numerous decisions of the United States Supreme Court involving interstate commerce. Four Justices stated in the Hurst opinion (with one Justice concurring in the result and four Justices dissenting): 699 So. 2d at 1257 (citations omitted). Hurst also distinguished the United States Supreme Court's decision in Lopez, stating: "[W]e do not view Lopez as signaling a retreat by the Supreme Court from its expansive interpretation of `interstate commerce' in cases clearly involving commercial transactions." 699 So. 2d at 1257. In fact, the United States Supreme Court has often given an expansive interpretation to Congress's regulatory power under the Commerce Clause in commercial settings, as opposed to the more limited interpretation given in noncommercial settings, as evidenced by Lopez. Two examples are Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942) (holding that a farmer's eating food produced from wheat he had grown on his own land would substantially affect interstate commerce because the result would be that he would buy less wheat on the market), and Russell v. United States, 471 U.S. 858, 105 S. Ct. 2455, 85 L. Ed. 2d 829 (1985) (holding that the rental of a two-unit apartment building in Illinois affects interstate commerce and is subject to congressional regulation under the Commerce Clause because the local rental of an apartment unit is an element of a broader commercial market of rental properties). This Court, in Delta Construction Corp. v. Gooden, 714 So. 2d 975, 978 (1998), noted that in Hurst four Justices had "explained that United States Supreme Court precedent indicates that even an intrastate transaction `involves' interstate commerce if it has virtually any tangible effect on the generation of goods or services for interstate markets and their distribution to the consumer." (Emphasis added.) Hurst had used slightly different language, stating that "a purely intrastate transaction, such as the one here, must affect in some way `the generation of goods and services for interstate markets and their transport and distribution for the consumer' in order for it to `involve' interstate commerce within the meaning of § 2 of the FAA." 699 So. 2d at 1255 (citation omitted) (emphasis added). It is curious that just one year after deciding Delta Construction even though the Hurst opinion had used the words "affect in some way" and even though the Court in Delta Construction had suggested that "United States Supreme Court precedent" recognizes that "an intrastate transaction `involves' interstate commerce if it has virtually any tangible effect on the generation of goods and services for interstate markets" (emphasis added)the Court cited Hurst and Delta Construction as authority for this statement: "This Court has held that even an intrastate transaction `involves' interstate commerce if it has a substantial effect on the generation of goods or services for interstate markets and their distribution to the consumer." Southern United Fire Ins. Co. v. Knight, 736 So. 2d 582, 586 (Ala.1999). In fact, until it decided Knight, this Court had never used the words "substantial effect" in that context. Thus, in the past year, this Court has abandoned its own expansive interpretation of "interstate commerce," and that of the United States Supreme Court, by determining that "[t]o satisfy the interstate-commerce criterion, the involvement of, or effect on, interstate commerce must be substantial." Rogers Foundation Repair, Inc. v. Powell, 748 So. 2d 869, 871 (Ala. *773 1999); see also Knight, supra. This Court has apparently determined, without explanation, that its previous decisions were incorrect and that the standard enunciated to strike down a criminal statute in Lopez is now applicable to commercial cases governed by the FAA.[8] I dissented in Knight. I concurred with the opinion in Powell, not recognizing the subtle change in language that had been inserted into that opinion (adopted from Knight) without explanation. That case was, nevertheless, correctly decided because that case involved a transaction with virtually no effect on interstate commerce. Powell involved a contract between the Powells, who were Alabama residents, and Rogers Foundation Repair, Inc., an Alabama corporation, for the repair of the Powells' chimney. The two persons employed by Rogers to do the repair work were also Alabama residents. The only equipment used during the project was a shovel. No materials were used for the project, and no evidence in the record indicated that the shovel or anything else pertaining to the project had traveled in interstate commerce. As discussed later in this dissent, the contract between Cochran and the Sisters evidences a transaction that had a much greater effect on interstate commerce than the effect of the contract in Powell. It seems that the sudden embrace of the requirement that a transaction "substantially affect" interstate commerce in order for the FAA to apply was a somewhat careless move and is contrary to the doctrine of stare decisis. The United States Supreme Court examined the doctrine of stare decisis in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854-55, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), setting forth four instances when it is appropriate to overrule precedent: (Citations omitted.) This statement from Planned Parent-hood would obviously require a rigorous *774 analysis of prior precedent and the proposed new standard before a State's highest court could legitimately adopt the new standard. As Chief Justice, I am compelled to point out that no such analysis by this Court has occurred with respect to the change from the "virtually any tangible effect" language of Delta Construction, 714 So. 2d at 978 to the "substantially affect" language. Such a neglect as that is intolerable in the decisions of a State's highest court. None of the four situations stated by the Supreme Court in Planned Parenthood is applicable to justify the blatant disregard of precedent in the present case. Hurst did not interpret the Supreme Court's decision in Lopez as "signaling a retreat by the Supreme Court from its expansive interpretation of `interstate commerce' in cases clearly involving commercial transactions." 699 So. 2d at 1257. Hurst was released in July 1997, and there has been no suggestion that its rationale is unworkable. Certainly, in such a short time the rule could not be considered a "remnant of abandoned doctrine," nor have facts so changed as to "rob[] the old rule of significant application or justification." Planned Parenthood, 505 U.S. at 855, 112 S. Ct. 2791. In fact, the rule enunciated in Hurst has been explicitly embraced by at least one other State supreme court. See In re L & L Kempwood Associates, L.P., supra. Finally, the rule enunciated in Hurst is just the kind of rule upon which people rely when entering into contracts; it is a rule "subject to a kind of reliance that would lend a special hardship to the consequences of overruling." 505 U.S. at 854, 112 S. Ct. 2791. The Sisters relied on the Hurst rule and believed that they were permitted to arbitrate with Cochran any dispute arising pursuant to their contract, as long as the transaction between them "involved" or "affected" interstate commerce. Now that they have a claim against Cochran, today's majority denies the Sisters the opportunity to arbitrate, a right they specifically contracted for; it denies them that opportunity by ignoring precedent and creating a stricter standard for enforcing arbitration provisions. Such a change threatens the very purpose of the doctrine of stare decisisstability and predictability for the ordering of citizens' lives and businesses' transactions. The value of stare decisis was aptly explained long ago by this Court in Lindsay v. United States Savings & Loan Ass'n, 120 Ala. 156, 167, 24 So. 171, 174 (1898): (Quoting Chancellor Kent.) In this case, there has been no showing that the rule of law stated in Hurst, which is supported by United States Supreme Court caselaw, and which was faithfully followed until recently, was in error. Nor has there been shown any reason, much less an urgent reason, to overturn that rule. The second flaw in the majority opinion is its examination of Wickard and its "primary-purpose" analysis. In Wickard, the United States Supreme Court stated that one of the primary purposes of the Act in question was to increase the market price of wheat and to limit the volume of wheat that could affect the market. Therefore, the Court concluded, one individual's home-consumption of wheat would have a substantial influence on price and market *775 conditions when that individual activity was "taken together with that of many others similarly situated." 317 U.S. at 128, 63 S. Ct. 82. Failing to apply the regulation to that individual, who seemingly had only a trivial and indirect effect on interstate commerce, would in fact have frustrated the primary purpose of the Act. Thus, according to the majority opinion in this present case, whether a federal regulation should apply to an individual turns on the question whether exempting that individual, and all others similarly situated, would defeat the "primary purpose" of the Act. The United States Supreme Court has stated that "the basic purpose of the Federal Arbitration Act is to overcome courts' refusals to enforce agreements to arbitrate." Terminix, 513 U.S. at 270, 115 S. Ct. 834 (acknowledging that in examining the FAA, the Court was "interpreting an Act that seeks broadly to overcome judicial hostility to arbitration agreements," 513 U.S. at 272, 115 S. Ct. 834.). The majority is today in fact frustrating the basic purpose of the FAA by refusing to enforce an agreement to arbitrate that is contained in a contract evidencing a transaction involving commerce. The Court's failure to enforce the arbitration contract between the Sisters and Cochran, as well as contracts of all those similarly situated, is not only a defeat of the primary purpose of the FAA, but is precisely the reason why the FAA was adopted in the first place.[9] The next flaw in the majority opinion is its attempt to create a "test for determining whether a particular contract has a substantial effect on interstate commerce." 775 So. 2d at 764. While I laud the effort to create a test for determining whether a transaction has the requisite effect on interstate commerce to invoke the FAA, the standard that has been created by the majority today will do more harm than good. The standard is arbitrarily constructed and arbitrarily applied in order to reach the desired result. Instead of relying on precedent and comparing previous cases to the one at bar, the majority opinion has created a hypothetical transaction and concocted five elements for determining whether this hypothetical transaction substantially affects interstate commerce. The opinion then applies those elements to the case at bar to determine that the Sisters have failed to prove that the contract with Cochran substantially affects interstate commerce. It is not clear whether a party is required to satisfy all five of the elements, three out of five elements, or some other number of elements in order to satisfy the test. The standard described by the majority opinion effectively limits the plenary power of Congress and creates a higher burden for parties to satisfy in order to enforce arbitration agreements. This result directly contradicts the federal policy favoring arbitration and the "primary purpose" of the FAA. In addition to creating an unworkable standard, the majority opinion fails to properly apply the elements of its own test to the facts of this case. Without lending my approval to the standard enunciated in the majority opinion, I submit that the present case nevertheless satisfies the majority's test. Neither party has disputed that the parties to this case are both Alabama residents, nor have they claimed any affiliation with out-of-state entities.[10] However, I *776 think it is important not to discount the citizenship of other parties that are involved in the contract between the Sisters and Cochran. These parties are discussed more thoroughly in Part III of this dissent, but they include the preservation consultant from Texas, who traveled to Alabama to meet with Cochran and to prepare the specifications for the plaster work; the painting company, whose artists were predominantly from out of state, and who had to repair the damage caused by Cochran's allegedly negligent plaster work; and the out-of-state insurance company from whom Cochran obtained liability insurance for the. project, pursuant to its contract with the Sisters. The majority opinion has included "tools and equipment" as an element in its test, even though neither party has asserted that Cochran acquired tools or equipment in interstate commerce for performance of this contract. Nevertheless, the majority does mention the scaffolding used by Cochran as well as by other contractors; the Sisters rented this scaffolding from a supplier headquartered in Missouri, with an office in Mobile. While not strictly an element of the contract solely between the Sisters and Cochran, Cochran's use of the scaffolding rented by the Sisters for use during the entire renovation project demonstrates that the separate contractors, including Cochran, are not necessarily entirely separable from the whole renovation project. This is addressed further in Part V. It is this category into which the majority lumps most of the interstate contacts that are present in this transaction. The manufacturer and supplier of the washers used by Cochran in pinning up loose moldings is located in Massachusetts. The preservation consultant who prepared the plaster specifications for Cochran traveled from Texas to work on the project. Cochran obtained liability insurance for the project through an out-of-state company. The majority proceeds to diminish the importance of these interstate contacts by creating an arbitrary allocation standard that appears to provide that a party who wants to enforce an arbitration agreement must prove that more than half of the money paid under the contract went toward out-of-state services and materials. This case involves a business agreement, a commercial transaction, in which an entity engaged the services of a company to do repair work. Must we now require a party to a contract with an arbitration provision to keep an accounting of how much money paid under the contract is attributable to out-of-state supplies and services, in case the other party refuses to comply with the arbitration provision? Does a transaction have the requisite effect on interstate commerce only if more than half of the money paid under the contract is attributable to out-of-state supplies and services? If so, then consider a $10-million transaction between two Alabama companies. If 40% of the money paid under the contract is attributable to out-of-state services and materials brought into *777 the State, does the transaction fail to affect interstate commerce, even though $4 million worth of supplies and services are moving in interstate commerce? Even this one element alone will likely attract the attention of the United States Supreme Court. In addition, the majority simply glosses over the fact that, pursuant to their contracts, the Sisters required each of their contractors to carry insurance coverage during the project. Cochran obtained its insurance through an out-of-state insurance company, and its policy named Hall Baumhauer, the architect, and Tom P. Ollinger Construction, Inc., as additional insureds, indicating that the policy was obtained specifically for this project. This Court and the United States Supreme Court have held that out-of-state insurance contracts clearly implicate interstate commerce: "Unquestionably, insurance transactions that stretch across state lines or intrastate insurance transactions that otherwise have the requisite (substantial) effect on interstate commerce constitute `Commerce among the several States,' so as to make them subject to regulation by Congress under the Commerce Clause of the United States Constitution." Knight, 736 So. 2d at 586. The United States Supreme Court has held that "an insurance company doing business across state lines engages in interstate commerce." See Humana Inc. v. Forsyth, 525 U.S. 299, 306, 119 S. Ct. 710, 142 L. Ed. 2d 753 (1999) (discussing United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S. Ct. 1162, 88 L. Ed. 1440 (1944)). This Court held in Fidelity National Title Insurance Co. of Tennessee v. Jericho Management, Inc., 722 So. 2d 740 (Ala.1998), that a title insurance policy issued by a Tennessee corporation that protects an Alabama corporation's mortgage, in connection with a federally regulated loan transaction, sufficiently affected interstate commerce to invoke the FAA. Despite the precedent to the contrary, the majority in the present case simply overlooks the insurance policy obtained by Cochran from an out-of-state company. The majority has determined that because Cochran's work deals with a structure that cannot be detached and moved across state lines, Cochran's work will not have a subsequent effect on interstate commerce. However, if we are to consider movement across state lines that occurs after a contract has been performed, then this transaction certainly is one that affects interstate commerce. Assuming for the moment that the Sisters' allegations of negligence by Cochran are true, Cochran's negligence directly involved and affected the provision of goods and services in interstate commerce in that it necessitated the complete repainting of entire sections of the chapel walls and ceiling by artists who had to be brought into Alabama from other States to repair the damage Cochran caused. Thus, Cochran's negligence in the performance of its contract directly affected other aspects of the project and involved or affected interstate commerce because of the necessity for subsequent transactions involving movement across State lines. The renovation of the Sisters' chapel was a project involving several contractors. Cochran did not perform an isolated piece of work; its work was part of a joint effort of several subcontractors. Therefore, the work of each one was related to and dependent upon the work of all the others. Considering the degree to which the work done by the several contractors in this renovation project was intermingled, we should not simply extract Cochran from the coordinated actions necessary for the success of the entire project and say that its contract does not affect interstate commerce. In addition to contracting with Cochran to provide the plaster work, the Sisters engaged Hall Baumhauer, an Alabama company, to provide the architectural *778 and consulting services for the restoration project. Hall Baumhauer contracted with Greg Free, a resident of Texas, to provide preservation consulting services, including the drafting of specifications for the plaster work. Free traveled to Mobile from Texas during the course of the renovations, and Free met specifically with Cochran and provided consulting services regarding the plaster work. The Sisters rented scaffolding, which was used by Cochran and other contractors, from a supplier headquartered in Missouri and with an office in Mobile. Canning, an entity organized and located in Connecticut, was hired to restore the ornamental paintings on the plaster walls and ceiling of the chapel. This is relevant to Cochran's contract in two respects. First, the entire dispute between the Sisters and Cochran relates to the fact that, in choosing a particular method of plaster repair, Cochran believed that the entire ceiling of the chapel would be repainted. Instead, the Sisters planned to repaint only the repaired sections. Cochran claims that it would have chosen a different method of plaster repair had it known that only the repaired portions of the chapel would be repainted. The Sisters' contract with Cochran and their contract with Canning were therefore interrelated. Second, after Cochran allegedly performed its plaster work negligently, the Sisters had to further engage the services of Canning, at an increased cost, which included payment for more work and for interstate travel, in order to repair the damage, because entire sections of the ornamental paintings had to be repainted rather than repaired. All of the artists employed by Canning, except one, reside outside Alabama and traveled to Alabama on numerous occasions during the course of the project and after Cochran had completed its work. The majority states that "we should not hold that proximity of this particular contract to contracts substantially affecting interstate commerce is determinative, lest we err by expanding the Commerce Clause." 775 So. 2d at 767. However, the United States Supreme Court has, since 1824, held that "Congress' authority under the Commerce Clause [is] plenary." Southland, 465 U.S. at 11, 104 S. Ct. 852. The phrase "involving commerce," as it is used in § 2 of the FAA, has been held to be the functional equivalent of the phrase "affecting commerce," and the Supreme Court has noted that "[t]hat phrase`affecting commerce'normally signals Congress' intent to exercise its Commerce Clause powers to the full." Terminix, 513 U.S. at 273, 115 S. Ct. 834. This Court need not unilaterally "expand" the Commerce Clause; however, it should follow the precedent of the United States Supreme Court with respect to the interpretation of the Commerce Clause. The Supreme Court stated in Terminix, regarding an analysis of the language of § 2 of the FAA: 513 U.S. at 275, 115 S. Ct. 834 (citations omitted). The majority opinion has created exactly what the Supreme Court in Terminix sought to avoidan "unfamiliar test lying somewhere in a no man's land between `in commerce' and `affecting commerce,'" a test that will "breed[] litigation from a statute that seeks to avoid it." 513 U.S. at 275, 115 S. Ct. 834. By enacting § 2 of the FAA, "Congress declared a national policy favoring arbitration and withdrew the power of the states *779 to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration." Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S. Ct. 852, 79 L. Ed. 2d 1 (1984). The United States Supreme Court set out the limitations of the FAA in Southland: 465 U.S. at 10-11, 104 S. Ct. 852. However, in the present case, this Court has seen fit to provide its own additional limitations under Alabama law, in the form of a five-part standard, which has no basis in precedent. When viewed in the aggregate, Cochran's use of materials procured by a local supplier from out-of-state, Cochran's following the plaster specifications prepared by an out-of-state consultant, and Cochran's use of an out-of-state insurance company in connection with the restoration project are facts that indicate this transaction had more than the requisite effect on interstate commerce for the FAA to apply. See Wickard, 317 U.S. at 128, 63 S. Ct. 82 (holding that effects on interstate commerce can be considered in the aggregate in determining whether federal regulations apply to an individual). In addition, the relationship of Cochran's contract to the whole of the renovation project makes it difficult to discount the effects Cochran's work had on the entire restoration project. As authority for its narrow interpretation of the FAA, the majority opinion twice quotes NLRB v. Jones & Laughlin Steel Corp., 301 U.S. at 37,, 57 S. Ct. 615, for the proposition that the commerce power should not be extended so far as to "`effectually obliterate the distinction between what is national and what is local and create a completely centralized government.'" 775 So. 2d at 763. However, while presenting this warning as to the scope of the interstate-commerce power, the Court in Jones & Laughlin Steel expanded the commerce power by upholding "the National Labor Relations Act against a Commerce Clause challenge, and in the process, depart[ing] from the distinction between `direct' and `indirect' effects on interstate commerce." Lopez, 514 U.S. at 555, 115 S. Ct. 1624. Thus, I am not persuaded that Jones & Laughlin Steel is good authority for limiting the scope of the commerce power in the present case. For these reasons, I am bound by the doctrine of stare decisis and, under the principles previously enunciated by this Court and the United States Supreme Court, I conclude that the Sisters have proved that their contract with Cochran has the requisite effect on interstate commerce for enforcement of the arbitration provision, pursuant to the FAA. Therefore, I would hold that the FAA does apply to preempt § 8-1-41(3), Ala.Code 1975, and to render the arbitration agreement between the Sisters and Cochran enforceable. MADDOX, Justice (dissenting). I must respectfully disagree with the majority's conclusion that the Federal Arbitration Act (FAA) does not apply to the transaction in this case. The majority, in reaching its conclusion, states that the FAA does not apply, for the following reason: 775 So. 2d at 767. The majority relies on United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 *780 L. Ed. 2d 626 (1995), a case in which the Supreme Court of the United States held that the Gun-Free School Zones Act, which made it a federal offense for a person knowingly to possess a firearm at a place that the person knew or had reasonable cause to believe was a school zone, exceeded Congress's Commerce Clause authority, because possession of a gun in a local school zone was not economic activity that substantially affected interstate commerce. I believe the majority's reliance on Lopez is misplaced. Although the Lopez case and this case both involve a question regarding Congress's power under the Commerce Clause, this case involves the FAA, and the question in this case is not whether Congress had the power to pass the FAA, but what Congress intended when it did so. I believe that the Supreme Court of the United States addressed and settled that question in Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995), in which the Court set out the proper test to be applied in cases involving the application of the FAA. In construing the scope of the FAA, the Court addressed the question what commercial activity would be included within the coverage of the FAA's provisions, and it concluded that the wording used by Congress "signals an intent to exercise Congress' commerce power to the full." 513 U.S. at 277, 115 S. Ct. 834. (Emphasis added.) With all due respect to the majority in the present case, I note that it appears to me that the majority opinion fails to apply the law of arbitration as that law is set out in the Allied-Bruce Terminix case and that it fails to apply the policy of the Federal Government favoring arbitration "to the full." When Allied-Bruce Terminix was decided, I thought most questions regarding the law of arbitration had been put to rest, and I fear that the result reached by the Court in this present case will only exacerbate the dispute between parties regarding whether the FAA should apply. I also thought that the Supreme Court of the United States, in an earlier appeal in an Alabama case involving the FAA, had also settled the debate. In Ex parte Alabama Oxygen Co., 433 So. 2d 1158 (Ala.1983), this Court was faced with the issue that is presented here: Did the FAA control? In that earlier case, a majority of this Court refused to apply the FAA in a State court proceeding. The Supreme Court of the United States reversed the judgment of this Court.[11] It held that the FAA applied to state actions. After a remand from the United States Supreme Court, this Court, in Ex parte Alabama Oxygen Co., 452 So. 2d 860 (Ala.1984), acknowledged that the FAA applied to cases brought in the courts of this State, and it approved the views I had expressed in a dissent from the original opinion in Ex parte Alabama Oxygen. In that dissent I had said, in part, that "[t]he Federal Arbitration Act (9 U.S.C. § 2 (1976)) creates a federal right to specific enforcement of arbitration agreements which are a part of contracts involving interstate commerce, notwithstanding any state substantive or procedural policies to the contrary." Ex parte Alabama Oxygen Co., 433 So. 2d at 1168 (Maddox, J. dissenting). After the Supreme Court reversed the judgment of this Court in Ex parte Alabama Oxygen, this Court followed what, in my opinion, was the correct rule, which was generally referred to as the "slightest-nexus" test. The slightest-nexus test was adopted by this Court in Ex parte Costa & Head (Atrium), Ltd., 486 So. 2d 1272 (Ala. 1986): 486 So. 2d at 1275. (Emphasis added.) Only a few years after it had decided Costa & Head, however, this Court specifically rejected the slightest-nexus test, in Ex parte Warren, 548 So. 2d 157 (Ala. 1989), a case in which I dissented. In the Warren case, a majority of this Court adopted the so-called "contemplation-of-substantial-interstate-activity test," which established the following standard for determining whether the FAA applied to a given transaction: "`[W]hether at the time [the parties] entered into [the contract] and accepted the arbitration clause, they contemplated substantial interstate activity.'" 548 So. 2d at 160 (quoting Metro Indus. Painting Corp. v. Terminal Constr. Co., 287 F.2d 382, 387 (2d Cir.1961) (emphasis in Metro Indus. Painting), cert. denied, 368 U.S. 817, 82 S. Ct. 31, 7 L. Ed. 2d 24 (1961)).[12] This Court has been inconsistent in its application of what I consider to be the proper standard, and I think the Court is again departing from the standard set by the Supreme Court in cases dealing with an interpretation of the words "involving commerce," as those words are used in the FAA. My position has been consistent throughout, and, based upon my understanding of the opinions of the Supreme Court of the United States interpreting the scope of the FAA, I continue to believe that the slightest-nexus test that this Court established in Ex parte Costa & Head (Atrium), Ltd.,but later discarded in Ex parte Warrenis consistent with the test set out in Allied-Bruce Terminix and should be the test applied in the present case. Stated differently, I believe the test adopted by the majority today is essentially a restatement of the so-called "contemplation" test set out in Ex parte Warren, 548 So. 2d 157 (Ala.), cert. denied sub nom. Jim Skinner Ford, Inc. v. Warren, 493 U.S. 998, 110 S. Ct. 554, 107 L. Ed. 2d 550 (1989), a test that was specifically rejected in Allied-Bruce Terminix, supra, and in the later case of Home Buyers Warranty Corp. II v. Lopez, 513 U.S. 1123, 115 S. Ct. 930, 130 L. Ed. 2d 876 (1995), another case that was appealed from this Court.[13] *782 Based on my understanding of the law of arbitration as expressed by the Supreme Court of the United States in Allied-Bruce Terminix, the so-called "contemplation" test, or any semblance of it, such as the "substantial-effect-on-interstate-commerce" test that the Court applies today, is not the proper test to be applied, because it has been specifically rejected by the Supreme Court in cases appealed to that Court from this Court, and I conclude this dissenting opinion by suggesting that it appears to me that the majority is considering the wrong Lopez case in reaching its conclusion in this case. It should be following the Lopez case that interprets the FAA,[14] rather than the standard stated in the Lopez case that declared a federal penal law unconstitutional as being beyond the scope of Congressional power.[15] SEE, Justice (dissenting). I agree with both Chief Justice Hooper and Justice Maddox that the majority opinion incorrectly extends United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995). The majority requires that an individual transaction "substantially affect" interstate commerce before it can be subject to the Federal Arbitration Act (the "FAA"). The majority also establishes a higher standard of "substantial effect" than is permitted under existing United States Supreme Court precedent. See Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942). The United States Supreme Court has held that in the FAA Congress exercised the full scope of its Commerce Clause power. See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 277, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995). Until the United States Supreme Court overrules Wickard, Congress may constitutionally subject to federal jurisdiction economic activity that affects interstate commerce, as long as that effect is substantial when considered in the aggregate. I, therefore, respectfully dissent. LYONS, Justice. APPLICATION OVERRULED. *783 HOUSTON, COOK, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. HOOPER, C.J., and MADDOX and SEE, JJ., dissent. HOOPER, Chief Justice (dissenting). I must respectfully dissent. In its original opinion, this Court purported to create a new standard for determining whether a transaction has a sufficient effect on interstate commerce to be subject to the Federal Arbitration Act. This Court set forth five specific elements, which it had never before imposed, as requirements for proof of a "substantial effect" on interstate commerce. On application for rehearing, the Sisters have requested the opportunity to comply with the test announced under this newly established doctrine. If this Court is going to establish a new standard for determining the applicability of the FAA, then it should either apply this standard prospectively only, or else give the Sisters the opportunity to demonstrate that their contract with Cochran meets this newly established standard. I would grant the application for rehearing. [1] See Edmond Seferi, FAA and Arbitration ClausesHow Far Can It Reach? The Effect of Allied-Bruce Terminix, Inc. v. Dobson, 19 Campbell L.Rev. 607, 617 (1997). [2] The Gun-Free School Zones Act, 18 U.S.C. § 922(q)(2)(A) (1988), made it a federal crime "for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone." [3] Justice Maddox, in his dissent, says we have followed the wrong Lopez case. In Home Buyers Warranty Corp. II v. Lopez, 513 U.S. 1123, 115 S. Ct. 930, 130 L. Ed. 2d 876 (1995), cited by Justice Maddox, the United States Supreme Court vacated this Court's judgment in Lopez v. Home Buyers Warranty Corp., 628 So. 2d 361 (Ala.1993), stating only that it remanded the case "for further consideration in light of Allied-Bruce Terminix Cos. v. Dobson." However, in Lopez v. Home Buyers Warranty Corp., this Court had examined the contemplation of the parties at the time they executed the contract as to whether that contract would involve interstate commerce. In Terminix, the Supreme Court expressly repudiated an interpretation of Congressional authority based on the contemplation of the parties to a contract, in favor of a "commerce-infact" interpretation, i.e., an interpretation that Congress has, under the Commerce Clause, the power to regulate a contract if the transaction to which the contract related in fact involved (affected) interstate commerce. 513 U.S. at 281, 115 S. Ct. 834. It appears that the dissent attaches significance to the remand in Home Buyers Warranty Corp. II v. Lopez for the wrong reason. [4] The opinion in Hurst v. Tony Moore Imports, Inc., 699 So. 2d 1249 (Ala.1997) (four Justices concurring and one Justice concurring in the result), declined to read Lopez's analysis as applicable to cases involving commercial transactions; a conclusion that the Lopez analysis is not applicable to such cases cannot be squared with the broad language used in Lopez. Because we are dealing with the scope of the power conferred on Congress by the Commerce Clause (and because, under Article VI of the United States Constitution, we must recognize that scope), we decline to disregard the clear dictum in Lopez. The Chief Justice, in his dissent, concludes that we have overruled Delta Construction Corp. v. Gooden, 714 So. 2d 975 (Ala.1998), and then views this Court's efforts to grasp the trend of the United States Supreme Court's cases on the reach of the Commerce Clause as governed by principles applicable to the implications attendant to overruling Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the seminal abortion-rights case. See dissenting opinion of Chief Justice Hooper, infra, at 773, citing Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). First, in Delta Construction, this Court, in face of evidence indicating that the contract involved had a substantial effect on interstate commerce (more than half of the contractor's orders for materials, equipment, and supplies were obtained from out of state, and the contractor's work crews were brought from outside the state), merely noted that four Justices in Hurst had embraced the view that an intrastate transaction involves interstate commerce if it has "virtually any tangible effect on the generation of goods or services for interstate markets and their distribution to the consumer." 714 So. 2d at 978 (citing Hurst, 699 So. 2d at 1255, 1257). Consequently, principles of stare decisis are not relevant. Nonetheless, even if today we are considered to have overruled Delta Construction because it simply referred to the conclusion of four Justices in Hurst, the circumstances surrounding the question whether to overrule Roe v. Wade vastly differ in kind as well as degree from the circumstances surrounding the matter before us today. Suffice it to say that the excessive caution urged in the Chief Justice's dissent overlooks our responsibilities as judges of a State court under Art. VI of the Constitution of the United States. [5] This analysis is necessarily fact-intensive and, in some respects, frustrates the laudable goal of summary and speedy disposition of the issue of arbitrability described as a component of the FAA in Terminix, 513 U.S. at 278, 115 S. Ct. 834. However, the goal of expediency cannot justify a court's disregarding constitutional limitations on the exercise of Congressional power. Moreover, it cannot be said that Congress was motivated by the goal of expediency when it created a right to trial by jury in disputes involving questions of arbitrability. See 9 U.S.C. § 4. [6] In Terminix, the Supreme Court reversed a decision by this very Court, which had improperly limited the application of the FAA. [7] The majority opinion, in its footnote 2, cites the Gun-Free School Zones Act as 18 U.S.C. § 922(q)(2)(A) (1988). That section does appear to reference interstate commerce, by requiring that the individual knowingly "possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone." However, in Lopez, the Supreme Court cited the Gun-Free School Zones Act as 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V). That section makes no reference to interstate commerce; that section makes it "a federal offense `for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.'" 514 U.S. at 551, 115 S. Ct. 1624. [8] The only explanation given by the majority opinion comes in footnote 4, wherein the Court states that the conclusion in Hurst that the Lopez analysis was not applicable to cases involving commercial transactions "cannot be squared with the broad language used in Lopez" and that it "decline[s] to disregard the clear dictum in Lopez." 775 So. 2d at 762 n. 4. I interpret Lopez very differently. Clear dictum indeed. [9] The majority states that "Alabama has a robust alternative-dispute-resolution program." 775 So. 2d at 764. That fact is wholly irrelevant to the present case. The Sisters specifically contracted for arbitration and should not be forced into protracted litigation in the hopes that a trial court might recommend the parties proceed to mediation, solely to support Alabama's freedom to try alternatives. It is likely that a long and protracted dispute in the courts is exactly what the Sisters sought to avoid when they contracted to arbitrate. [10] However, the majority has found it necessary to state that "[t]he only affiliation of any of the parties with out-of-state entities is found in the relationship between the Sisters and the Roman Catholic Church." 775 So. 2d at 765. This fact distinguishes the parties in this case from those in Terminix. Otherwise, it is my opinion that the transaction in this case has more contacts with interstate commerce than the transaction at issue in Terminix. I agree that the institutional relationship between the Sisters and the worldwide apparatus of the Roman Catholic Church would not normally touch upon interstate commerce. But neither would a transaction between a local Terminix franchise and an Alabama customer. Yet a commercial transaction in which an out-of-state portion of the Roman Catholic Church was involved would certainly affect interstate commerce. No evidence of the involvement of an out-of-state component of the Roman Catholic Church was presented by the Sisters. The facts of each case stand on their own merits. I point out the above to explain that the mere religious nature of the Sisters organization and the institution of which it is a member is not relevant to the issue in this case and that I do not understand why the majority opinion highlighted the religious nature of the Roman Catholic Church. [11] York Int'l v. Alabama Oxygen Co., 465 U.S. 1016, 104 S. Ct. 1260, 79 L. Ed. 2d 668 (1984). [12] This Court's decision in Ex parte Warren, which adopted a test requiring a showing that the parties "contemplated substantial interstate activity," was criticized as "creating a double standard." Stanley D. Bynum & J. David Pugh, Enforcing Arbitration Agreements in Alabama: A Double Standard Dilemma, 54 Ala. Law. 38, 43 (January 1993). Bynum and Pugh wrote that Costa & Head "brought Alabama law generally in line with the majority of other jurisdictions" but that Warren "is inconsistent with all other jurisdictions that have addressed the issue." Id. at 38-39, 41. The authors particularly criticized Warren's contemplation test for its subjectivity. Id. at 43. A reading of this Court's decisions in arbitration cases following the adoption of the contemplation-of-substantial-interstate-activity test illustrates the subjectivity of the new test. For example, the Warren test was applied basically in two contextsthose involving automobile sales contracts between dealers and consumers, see Warren and Ex parte Williams, 555 So. 2d 146 (Ala.1989), and those, like Ex parte Jones, 628 So. 2d 316 (Ala.1993), involving stock-purchase agreements. See, also, Ex parte Clements, 587 So. 2d 317 (Ala.1991), and other cases that showed that the Court applied the "contemplation" test sparingly, indicating that Warren had a narrow application. Ex parte Brice Building Co., 607 So. 2d 132, 134 (Ala.1992) (quoting in part Roscoe v. Jones, 571 So. 2d 1043, 1046 (Ala.1990)). This Court also applied the slightest-nexus test in a number of other contexts. See First Real Estate Corp. of Alabama v. Brown Marx Tower Ltd. Partnership, 620 So. 2d 648 (Ala.1993) (real-estate-management agreement); Circle "S" Indus., Inc. v. Berryman, 613 So. 2d 329 (Ala.1993) (consent judgment involving agreement not to compete); Garikes, Wilson, & Atkinson, Inc. v. Episcopal Foundation of Jefferson County, Inc., 614 So. 2d 447 (Ala.1993) (contract for architectural services); and A.J. Taft Coal Co. v. Randolph, 602 So. 2d 395 (Ala.1992) (mining lease). [13] In Lopez v. Home Buyers Warranty Corp., 628 So. 2d 361 (Ala.1993), the trial court applied the "slightest-nexus" test and compelled arbitration. This Court, applying the "contemplation" test, ordered the trial court to set aside its order, and it stated, "[W]e have recently overruled the Costa & Head `slightest nexus' test in favor of the more reasoned approach of the `contemplation' test applied in Ex parte Warren, 548 So.2d 157(Ala.), cert. denied sub nom. Jim Skinner Ford, Inc. v. Warren, 493 U.S. 998, 110 S. Ct. 554, 107 L. Ed. 2d 550 (1989)." 628 So. 2d at 363. The Court further stated that "[t]he Warren test examines whether the parties `contemplated substantial interstate activity' at the time they entered into the contract and accepted the arbitration clause," 628 So. 2d at 363, and added the following in footnote 2: "The standard in Warren better promotes our strong public policy against the use of predispute arbitration agreements. Its `contemplation' test is to be applied exclusively in determining whether a contract involves interstate commerce for purposes of applying the FAA to arbitration disputes. Continental Grain Co. v. Beasley, 628 So. 2d 319 (Ala.1993)." In Ex parte Jones, 628 So. 2d 316 (Ala.1993), I wrote: "In determining whether a transaction involves interstate commerce, I believe that the `slightest nexus' test set forth in Ex parte Costa & Head (Atrium), Ltd., and not the `contemplation' test set forth in Warren provides the proper analysis. See Warren, 548 So. 2d at 160-63 (Maddox, J., dissenting). Although the majority concludes `that Warren represents a more reasoned approach than the Costa standard,' 628 So. 2d at 318, the majority also recognizes that Warren `had a very limited applicability, as was indicated by the Warren opinion itself and as subsequent cases suggested.'" 628 So. 2d at 318. (Some citations omitted.) In Lopez v. Home Buyers Warranty Corp., 628 So. 2d 361 (Ala.1993), this Court also applied the "more reasoned approach" of Warren. 628 So. 2d at 363. What did the Supreme Court of the United States think of this Court's conclusion that Warren provided a "more reasoned approach"? That Court vacated this Court's judgment in Lopez and remanded the case to this Court "for further consideration in light of Allied-Bruce Terminix Cos. v. Dobson." Home Buyers Warranty Corp. II v. Lopez, 513 U.S. at 1123, 115 S. Ct. 930 (citation omitted). [14] Home Buyers Warranty Corp. II v. Lopez, 513 U.S. 1123, 115 S. Ct. 930, 130 L. Ed. 2d 876 (1995). [15] United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995).

May 26, 2000

cb22c8d9-81ae-4c93-824f-7df79401cdda

Ex Parte Ford Motor Credit Co.

772 So. 2d 437

1990291, 1990376

Alabama

Alabama Supreme Court

772 So. 2d 437 (2000) Ex parte FORD MOTOR CREDIT COMPANY and Deep South Recovery of Dothan, Inc. Ex parte Universal Underwriters Life Insurance Company. (Re Inese A. Ford v. Ford Motor Credit Company et al.) 1990291 and 1990376. Supreme Court of Alabama. May 19, 2000. *438 William L. Howell, Stephen L. Klimjack, and William C. Poole of William L. Howell, P.A., Mobile, for petitioners Ford Motor Credit Company and Deep South Recovery of Dothan, Inc. Samuel H. Franklin and Wynn M. Shuford of Lightfoot, Franklin & White, L.L.C., Birmingham, for petitioner Universal Underwriters Life Insurance Company. Christian E. Roberson of Roberson & Roberson, Birmingham, for respondent. MADDOX, Justice. Ford Motor Credit Company ("FMCC"), Deep South Recovery of Dothan, Inc. ("Deep South"), and Universal Underwriters Life Insurance Company ("Universal"), defendants in an action pending in the Barbour Circuit Court, petition for a writ of mandamus directing the trial judge to dismiss that action. These mandamus petitions present a single questiona question we cannot answer from the materials before us: When a circuit judge, applying the doctrine of forum non conveniens, dismisses a pending action, without prejudice, on the ground that the State of Florida would be a more convenient forum, is the plaintiff, an Alabama resident who contends that since the dismissal was entered her health has deteriorated significantly and to the point that she is having to undergo cancer treatments and that it would impose a difficulty for her to pursue her claims in a Florida court, precluded from filing another action in the same circuit court, presenting the same claims? The answer to this question depends upon the legal effect of two separate orders entered by two circuit judges. The first action was dismissed by then Circuit Judge Thomas Gaither by an order that read as follows: The plaintiff's second action was assigned to Circuit Judge Burt Smithart, who had succeeded Judge Gaither. Judge Smithart denied the defendants' motion to dismiss the second action, stating: (Emphasis added.) After carefully considering the law relating to the dismissal of an action on the ground of forum non conveniens, we hold *439 that the dismissal order entered by Judge Gaither, although it used the words "without prejudice," was a final order; therefore we issue a writ of mandamus requiring further proceedings, but, because Judge Smithart, in the action out of which these petitions arose, did not address the plaintiff's argument on the effect of the change the plaintiff alleges has occurred in her health condition, we do not, at this time, direct the trial court to dismiss the pending action. We direct the circuit court to address whether the alleged change in the plaintiff's health condition should be considered in determining whether the second action should be dismissed on the ground of forum non conveniens. For a better understanding of the reason we reach the judgment we do, we set out the facts and the law we believe to be applicable. On February 17, 1996, Inese A. Ford and her husband, Harold G. Phillips, bought a 1990 Chrysler New Yorker automobile from the Deland Lincoln-Mercury automobile dealership in Orange City, Florida. Both Ford and Phillips signed a retail installment contract with FMCC to finance the purchase of the automobile. Ford alleges that an employee or employees of the dealership, acting as an agent or agents of FMCC and/or Universal, represented to her and her husband that a credit-life insurance policy they were issued would pay the outstanding amount that Ford and Phillips owed under the finance agreement in the event Phillips died. Ford subsequently moved from Florida to Eufaula, Alabama, where she began undergoing treatment for breast cancer. When her husband later died, she filed a claim with Universal for benefits under the credit-life insurance policy. Universal denied the claim. Ford alleges that FMCC, acting through Deep South, which she alleges was FMCC's agent, repossessed her automobile. Ford sued FMCC, Deep South, and Universal in the Barbour County Circuit Court. FMCC and Deep South moved to transfer the action to the Houston County, Alabama, Circuit Court. In the alternative, they moved for a transfer to a Florida court or for a summary judgment. Universal moved to dismiss the action under the provisions of § 6-5-430, Ala.Code 1975, Alabama's forum non conveniens statute. On March 12, 1998, Judge Gaither entered the order set out above, dismissing the action, without prejudice, based on his finding "that this case would be more appropriately tried in the State of Florida pursuant to the requirements of Ala.Code [1975,] § 6-5-430." The plaintiff did not appeal from that order. On May 26, 1999, approximately 13 months after Judge Gaither had entered the dismissal order, Ford filed the action now pending in the Barbour County Circuit Court. Her complaint in that second action stated the same causes of action she had stated in the previously dismissed action. The defendants moved to dismiss the action under the provisions of Ala.Code 1975, § 6-5-430. Judge Smithart orally denied the motion, in open court. He subsequently issued a written order, dated October 1, 1999, denying the defendants' motions to dismiss. FMCC, Deep South, and Universal then filed these petitions for the writ of mandamus. An order dismissing an action under the provisions of Ala.Code 1975, § 6-5-430, is appealable. See Donald v. Transport Life Ins. Co., 595 So. 2d 865 (Ala.1992). Thus, when Judge Gaither dismissed Ford's first action on March 12, 1998, Ford had the right to appeal. She did not do so. The defendants, here as petitioners, argue that Ford was free to file her claims in a Florida court but was not free to refile them in an Alabama court. They argue, in essence, that the question of forum non conveniens was litigated and determined in the previous action and that, as a consequence, *440 Ford should be estopped from relitigating that issue in the second action. Issue preclusion[1] applies to prevent the relitigation of an issue previously determined, when the following conditions exist: (1) the issue in question is identical to one presented in a prior action; (2) the issue was litigated in the prior action; (3) the issue was determined in the prior action; (4) the determination of the issue was necessary to the judgment in the prior action; and (5) there is a substantial identity of parties in the two actions. Abernethy v. Abernethy, 611 So. 2d 1021 (Ala. 1992); and Dairyland Ins. Co. v. Jackson, 566 So. 2d 723 (Ala.1990). As a threshold matter, we consider generally whether issue preclusion is applicable in cases where the issue is the applicability of the doctrine of forum non conveniens. Before the Legislature adopted Act No. 87-182, Ala. Acts 1987, Alabama courts were not authorized to dismiss cases under the doctrine of forum non conveniens. See Ex parte Illinois Cent. Gulf R.R., 537 So. 2d 899 (Ala.1988). Because the doctrine was adopted in Alabama relatively recently, this Court has not before today considered the potential preclusive effect of a dismissal under the doctrine of forum non conveniens. Although we have no controlling Alabama authority on the preclusive effect of a dismissal under the doctrine of forum non conveniens, we are not without guidance. Writing about the analogous doctrine of forum non conveniens applied in the federal courts,[2] Professors Wright, Miller, and Cooper state: 18 Charles Alan Wright et al., Federal Practice and Procedure: Jurisdiction and Related Matters § 4436 (1981) (emphasis added; footnotes omitted). In addition, several federal courts, applying the federal doctrine of forum non conveniens, have held that a dismissal based on the doctrine of forum non conveniens can have a preclusive effect. In Exxon Corp. v. Chick Kam Choo, 817 F.2d 307, 314 (5th Cir.1987), rev'd on other grounds, 486 U.S. 140, 108 S. Ct. 1684, 100 L. Ed. 2d 127 (1988), the United States Court of Appeals for the Fifth Circuit held: See also Mizokami Bros. of Arizona, Inc. v. Mobay Chem. Corp., 660 F.2d 712 (8th Cir.1981) (recognizing that a dismissal on grounds of forum non conveniens can be preclusive but holding that it was not preclusive in that case because different factual circumstances could make Missouri a more convenient forum than Arizona, where a federal court had previously dismissed an action filed in Arizona on the basis that Mexico provided a more convenient forum than Arizona); Pastewka v. Texaco, Inc., 565 F.2d 851 (3d Cir.1977) (affirming the decision of a Delaware federal district court holding that a prior dismissal by a New York federal district court on grounds of forum non conveniens was binding on the plaintiffs in the Delaware action because the underlying factual and legal issues were the same); Alexander Proudfoot, Plc v. Federal Ins. Co., 860 F. Supp. 541, 544 (N.D.Ill.1994) ("[I]f a court grants a motion to dismiss for forum non conveniens, and thus enters final judgment, another court may revisit the issue if material facts underlying the judgment have changed."); and Villar v. Crowley Maritime Corp., 780 F. Supp. 1467 (S.D.Tex.1992) (holding that a California federal district court's prior determination that the Philippines provided a more convenient forum than any forum in the United States was preclusive because the plaintiffs, who filed a subsequent action in a Texas federal district court, presented no facts materially altering the considerations underlying the California court's previous determination). In addition, at least two state appellate courts have reached conclusions similar to those of the federal courts listed above. In Saudi American Bank v. Azhari, 460 N.W.2d 90 (Minn.App.1990), the plaintiffs sued in the same Minnesota state court that had dismissed an action by the plaintiffs two years previously, on grounds of forum non conveniens; the second case was before a different judge. The court *442 dismissed the second case because of the preclusive effect of the previous dismissal. The Minnesota Court of Appeals affirmed. In Alcantara v. Boeing Co., 41 Wash. App. 675, 679-80, 705 P.2d 1222, 1225-26 (1985), the Court of Appeals of Washington held: We are persuaded by the weight of authority from other jurisdictions that, as a general matter, a forum non conveniens dismissal can indeed have a preclusive effect. Therefore, we now consider the elements of the doctrine of issue preclusion to determine whether in the second action Judge Smithart should have recognized Judge Gaither's forum non conveniens dismissal as preclusive. The first element of the issue-preclusion test is whether the issue raised in the second action is identical to the issue litigated in the first action. This is the issue Professors Wright, Miller, and Cooper identified as sometimes troublesome, when they wrote: "For the most part, the only difficulties of application arise from the need to use care in characterizing the actual basis of the first judgment." Supra. In other words, we must ask: Did Judge Smithart's order in the second action denying the motion to dismiss relate to the same issue that had been decided by Judge Gaither's order dismissing the first action? As a more specific explanation of the inquiry we make, we adopt this statement of the Washington Court of Appeals: Alcantara, 41 Wash. App. at 680, 705 P.2d at 1226. Ford argues that she filed her second action in Barbour County because facts material to Judge Gaither's forum non conveniens dismissal had changed. Specifically, she argues that after Judge Gaither dismissed her first action she was diagnosed with cancer in her right breast; that the illness required her to undergo radiation and chemotherapy treatment; and that the treatments would make it difficult for her to pursue her claims in a Florida court. Before Judge Gaither dismissed the first action, Ford had been diagnosed with, and treated for, cancer in her left breast. Ford has submitted for this Court's review an affidavit explaining the emergence of cancer in her right breast and explaining the medical treatment that emergence necessitated. The petitioners have moved to strike that affidavit, pointing out that Ford did not submit the affidavit to Judge Smithart before he ruled on the forum non conveniens issue. They point out that this Court has held: "On review by mandamus, we must look at only those facts before the trial court." Ex parte Baker, 459 So. 2d 873, 876 (Ala.1984). Because the affidavit submitted by Ford as Exhibit F to her "Response to Petitions *443 for Writ of Mandamus," filed January 18, 2000, was not before Judge Smithart, we grant the petitioners' motion to strike the affidavit. The fact that we strike Ford's affidavit, however, is not determinative. Ford points out in her response to the motion to strike that although the affidavit was not before the trial court, the essential facts it contained were before the trial court. Indeed, in her complaint initiating the second action, she stated: Further, in her response to the defendants' motion to dismiss, Ford stated: The defendants argue that Ford's second case of breast cancer should have no bearing on our review of Judge Smithart's order denying their motions to dismiss, because she had been diagnosed with breast cancer before Judge Gaither dismissed her first action on forum non conveniens grounds. Although that appears to be true, the defendants seem to ignore the key element of Ford's argument. Ford argues, albeit not clearly, that although she had been suffering from breast cancer before Judge Gaither dismissed her first action, her cancer had gone into remission or her medical treatments were drawing to a close. That argument appears to be supported by an affidavit that Ford executed and that appears to have been before Judge Gaither when he dismissed her first action. That affidavit states: Further, the brief Ford filed for Judge Gaither to consider when he ruled on the motion to dismiss did not argue that a Florida forum would be inconvenient for Ford because she was undergoing cancer treatment. In other words, while Judge Gaither was certainly aware that Ford had been diagnosed with breast cancer and had been receiving treatment for that condition, from what is currently before this Court it appears possible that Ford's continued access to treatment was not a material fact considered by Judge Gaither. In contrast, it appears that Ford's argument that she was unable to travel to Florida because of a need to receive continuing treatments for cancer was before Judge Smithart. In light of these facts, if Judge Smithart had found that Ford's need for medical treatment was a material fact that had changed since Judge Gaither dismissed the first action on forum non conveniens grounds, and if he had stated that finding as his reason for denying the defendants' motion to dismiss the second action on the same grounds, Ford might be able to make a persuasive argument that we should deny these mandamus petitions. Judge Smithart, however, explicitly stated *444 that his decision was not based on Ford's need for access to medical treatments. Instead, his order appears to have been based solely on a conclusion that Judge Gaither's order was not a final judgment on the forum non conveniens issue; he apparently based this conclusion on the fact that in his order Judge Gaither used the words "without prejudice." As we have stated above, Judge Smithart wrote: (Emphasis added.) Restatement (Second) of Judgments § 13 (1982) states: (Emphasis added.) Further, we note Restatement (Second) of Judgments § 27 cmt. k (1982): (Emphasis added.) In other words, although the litigation in Ford's first action had not reached the stagefinal judgment on the meritsthat gives rise to claim preclusion, that fact is irrelevant to the inquiry whether it had reached a stage that could give rise to issue preclusion. It is manifest that Judge Gaither did not enter a final judgment on the merits. Therefore, it was proper for him to specify that he dismissed the case without prejudice, meaning that Ford had the right to pursue her claims in a future action and to receive a final judgment on the merits. However, we cannot accept Judge Smithart's conclusion that Judge Gaither, in using the words "without prejudice," intended to allow Ford to relitigate the forum non conveniens issue in any courtincluding the Barbour County Circuit Courtin the absence of any change in the material facts underlying his determination. On this point, we must respectfully reject Judge Smithart's reasoning.[3] Nevertheless, we are mindful that Judge Smithart did not consider the question whether Ford's medical condition has changed to the extent that it may be determined that a material fact underlying Judge Gaither's determination has changed. As a consequence, we direct Judge Smithart to vacate his order of October 1, 1999, denying the defendants' motions to dismiss. However, we do not determine at this point whether Ford's argument concerning her medical condition and her need for treatment establishes that material facts supporting Judge Gaither's determination have changed. We leave that question for Judge Smithart. He is directed to permit *445 the parties to present any evidence they desire on the question whether Judge Gaither considered Ford's health problems when he dismissed the first action on the ground of forum non conveniens and to present evidence concerning the question whether the circumstances of her health problems have substantially changed. The trial judge is directed to enter an order on the defendants' motions to dismiss explaining in detail his findings of fact and conclusions of law on this issue. At that point, if the trial court enters an order dismissing on the doctrine of forum non conveniens, Ford will be free to appeal that order. If the trial court denies the motions to dismiss on the doctrine of forum non conveniens, then the defendants will be free to petition for the writ of mandamus. MOTION TO STRIKE AFFIDAVIT GRANTED; WRIT ISSUED DIRECTING FURTHER PROCEEDINGS ON THE MOTIONS TO DISMISS. HOOPER, C.J., and SEE, LYONS, and JOHNSTONE, JJ., concur. [1] There is some dispute in Alabama cases whether "issue preclusion" and "claim preclusion" are separate doctrines or are both subsets of the doctrine of res judicata. See Equity Resources Management, Inc. v. Vinson, 723 So. 2d 634, 635 n.2 (Ala.1998). Regardless, claim preclusion does not apply in this case because one of the elements of claim preclusion is that the previous action resulted in a judgment on the merits. Abernethy v. Abernethy, 611 So. 2d 1021 (Ala.1992). The prior action between these litigants did not result in a judgment on the merits, so claim preclusion does not apply. The preclusion doctrine involved in this case, then, is issue preclusion. Issue preclusion can be divided into two subcategories traditionally referred to as "collateral estoppel" and "direct estoppel." This case falls into the direct-estoppel category, because the second action Ford filed was based on the same cause of action as her first action. Restatement (Second) of Judgments, § 27 cmt. b (1982) states: "In some cases, a judgment does not preclude relitigation of all or part of the claim on which the action is brought. See §§ 20, 26. In such cases, the rule of this Section precludes relitigation of issues actually litigated and determined in the first action when a second action is brought on the same claim.... Issue preclusion in a second action on the same claim is sometimes designated as direct estoppel. If, as more frequently happens, the second action is brought on a different claim, the rule of this Section also applies; in such cases, preclusion is sometimes designated as collateral estoppel." See also Exxon Corp. v. Chick Kam Choo, 817 F.2d 307, 312 (5th Cir.1987), rev'd on other grounds, 486 U.S. 140, 108 S. Ct. 1684, 100 L. Ed. 2d 127 (1988), quoting Restatement (First) of Judgments, § 49 cmt. b (1942), and discussing the concept of direct estoppel. For clarity's sake, we will refer to the preclusion doctrine applicable in this case simply as "issue preclusion." [2] The federal doctrine of forum non conveniens is distinct from the doctrine that we apply in this case. The federal doctrine of forum non conveniens is based on a statutory enactment of Congress and is not a codification of the common-law doctrine of forum non conveniens. See Exxon Corp. v. Chick Kam Choo, 817 F.2d 307, 313 (5th Cir.1987), rev'd on other grounds, 486 U.S. 140, 108 S. Ct. 1684, 100 L. Ed. 2d 127 (1988). The Alabama doctrine of forum non conveniens is also based on a statute. However, even though the two doctrinesthe federal doctrine and the Alabama doctrineare based on independent and distinct statutory enactments by two different legislative bodiesthe United States Congress and the Alabama Legislaturethey have sufficient fundamental similarity that we find cases and other materials discussing the preclusive effect of a forum non conveniens dismissal by a federal court to be persuasive. [3] Our conclusion that Judge Gaither's order embodied a sufficient finality on the issue of forum non conveniens to give rise to issue preclusion is consistent with our conclusion, supra, that it was an appealable order.

May 19, 2000

f47e5cfb-db0b-4642-b73e-24f7d020280f

Ex Parte WDJ

785 So. 2d 390

1981115

Alabama

Alabama Supreme Court

785 So. 2d 390 (2000) Ex parte W.D.J. (Re W.D.J. v. State). 1981115. Supreme Court of Alabama. May 12, 2000. Rehearing Denied September 1, 2000. *391 Harold A. Koons III of Ball & Koons, Bay Minette, for appellant. Bill Pryor, atty. gen., and Hense R. Ellis, asst. atty. gen., for appellee. JOHNSTONE, Justice. On May 28, 1997, W.D.J. pleaded guilty to being a youthful offender on the underlying charge of assault in the first degree for causing serious bodily injury to William McKinley with a motor vehicle while W.D.J. was driving under the influence of alcohol, a violation of § 13A-6-20(a)(5), Ala.Code 1975. That same day, the trial court sentenced W.D.J. to three years' imprisonment, but suspended the sentence and placed him on supervised probation for three years. As conditions of his probation, W.D.J. was ordered to complete 50 hours of community service, to pay $50 to the Crime Victims Compensation Fund, to pay court costs, and to pay an undetermined amount of restitution to McKinley. On November 20, 1997, the trial court conducted a restitution hearing. Dorothy Hubbard, McKinley's aunt, was the State's only witness. She verified medical bills for McKinley's treatment and testified that McKinley owed a total of $100,308.67 for medical expenses not paid by Medicaid. On cross-examination, Hubbard testified that McKinley sustained his injuries in an automobile accident when he was a 21-year-old passenger in the vehicle driven by W.D.J. W.D.J. testified that, at the time of the accident, he was only 16 years old. He stated that he was driving McKinley and that they were "drinking beer out of the same bag." W.D.J. testified that the accident occurred when his wheels locked after he braked to avoid hitting a deer and his car ran off the road. While W.D.J. admitted that he had drunk two beers, there was no evidence that he was speeding or otherwise improperly operating the vehicle. On December 2, 1997, the trial court ordered W.D.J. to pay restitution in the amount of $100,308.67, and on December 15, 1997, W.D.J.'s counsel filed a "Motion to Alter, Amend or Vacate" the restitution order. Counsel argued, as he had at the restitution hearing, that McKinley was not due any restitution because he was a participant in the criminal activity which resulted in his injuries and was therefore not a "victim" for the purpose of receiving restitution under § 15-18-65 et seq. Counsel contended that McKinley could have been charged for providing alcohol to a minor under the age of 21 years in violation of § 28-3A-25(a)(3), Ala.Code 1975, or for contributing to the delinquency of a minor in violation of § 12-15-13, Ala.Code 1975. Defense counsel argued further that § 15-18-67, Ala.Code 1975, requires a defendant to pay restitution only for a victim's "pecuniary damages," which are defined as damages a victim could recover in a civil action against the defendant. § 15-18-66(2), Ala.Code 1975. Counsel argued that McKinley would not be able to recover civil damages because he was contributorily negligent in causing his own injuries and that, therefore, McKinley was not due restitution. In the State's response to W.D.J.'s "Motion to Alter, Amend, or Vacate," the State argued that it was factually and legally impossible for McKinley to be a participant in the assault. Rather than rule on the motion, however, the trial court *392 deemed it moot because W.D.J. filed a notice of appeal on January 9, 1998. The Court of Criminal Appeals initially dismissed the appeal as untimely, but later reinstated the appeal and remanded the case for the trial court to state the factors it considered in determining W.D.J.'s ability to pay restitution. W.D.J. v. State, 785 So. 2d 385 (Ala.Crim.App.1998). On remand, the trial court complied with the order of the Court of Criminal Appeals. On return after remand, the Court of Criminal Appeals, on February 5, 1999, affirmed W.D.J.'s conviction and sentence, including the restitution assessment, without opinion. Id. W.D.J. petitioned this Court for a writ of certiorari, and we granted the writ to determine whether the trial court erred in awarding restitution to McKinley. W.D.J. specifically maintains that McKinley's participation in his own assault disqualifies him from receiving restitution. The Legislature enacted Art. 4A, "Restitution to Victims of Crimes," § 15-18-65 et seq., for the purpose of ensuring "that all perpetrators of criminal activity or conduct be required to fully compensate all victims of such conduct or activity for any pecuniary loss, damage or injury as a direct or indirect result thereof." § 15-18-65, Ala.Code 1975 (emphasis added). The Act provides that a victim may recover from a defendant "[f]ull, partial, or nominal payment of pecuniary damages" which the victim could recover from the defendant in a civil action arising from the defendant's criminal behavior. § 15-18-66(2) and (3). While the Act defines "victim" as it provides further that, for the purpose of recovering restitution, Alabama law provides that one is a participant, or an accomplice, in a defendant's criminal behavior if "with the intent to promote or assist in the commission of the offense (1)[h]e procures, induces or causes such other person to commit the offense; or (2)[h]e aids or abets such other person in committing the offense...." § 13A-2-23, Ala.Code 1975. "`The words "aid and abet" comprehend all assistance by acts, words of encouragement, or support, or presence, actual or constructive, to render assistance should it become necessary.'" Wright v. State, 494 So. 2d 936, 937 (Ala.Crim.App.1986) (citations omitted). The evidence establishes that McKinley encouraged and supported W.D.J.'s criminal behavior consisting of drinking beer and driving the vehicle occupied by McKinley. Aware that W.D.J. was not of legal drinking age, McKinley nonetheless shared beer with W.D.J. while W.D.J. drove the vehicle. Thus, the evidence establishes that McKinley "aided and abetted" W.D.J. in driving under the influence in violation of § 32-5A-191(b), Ala.Code 1975. Because W.D.J.'s driving under the influence was an essential element of the assault on McKinley, McKinley contributed to his own assault by encouraging W.D.J. to drink and drive. Accordingly, as a participant in W.D.J.'s criminal behavior, McKinley is excluded from the definition of "victim" and therefore is excluded from a victim's entitlement to restitution. § 15-18-66, Ala.Code 1975. This analysis, even without more, requires reversal of the restitution order. A further reason for reversal is that McKinley's participation in the defendant's *393 criminal activity would prevent him from recovering damages in a civil lawsuit alleging negligence or wantonness. If McKinley were to allege that W.D.J.'s negligent conduct caused his injuries, the doctrine of contributory negligence would defeat McKinley's recovery of any damages. Creel v. Brown, 508 So. 2d 684 (Ala.1987). Likewise, the Guest Statute, § 32-1-2, Ala.Code 1975, would bar McKinley's recovery of damages on a claim of negligence. If McKinley were to allege that W.D.J.'s wanton conduct caused his injuries, the doctrine of in pari delicto would bar McKinley's recovery of any damages. The doctrine of in pari delicto bars recovery by a plaintiff who is equally as guilty as the defendant in the breach of the law. Wall v. Cotton, 22 Ala.App. 343, 115 So. 690 (1928); and Clark v. Colbert, 67 Ala. 92 (1880). Moreover, this Court has held that "[a] person cannot maintain a cause of action if, in order to establish it, he must rely in whole or in part on an illegal or immoral act or transaction to which he is a party." Hinkle v. Railway Express Agency, 242 Ala. 374, 378, 6 So. 2d 417, 421 (1942). In Oden v. Pepsi Cola Bottling Co., 621 So. 2d 953 (Ala.1993), this Court stated that the purpose of the Hinkle rule is to ensure that "`those who transgress the moral or criminal code shall not receive aid from the judicial branch of government.'" 621 So. 2d at 955 (citations omitted) (emphasis added). Because McKinley knowingly and intentionally participated in W.D.J.'s crime of drinking and driving, Alabama law prohibits McKinley from recovering any damages "for the consequences of [his] own behavior." Thus, the trial court's award of restitution to McKinley violates the restriction of restitution to damages that he could "recover against the defendant in a civil action arising out of" W.D.J.'s criminal behavior. § 15-18-66(2). For the foregoing reasons, we conclude that the trial court erred in awarding McKinley restitution. Therefore, we reverse the Court of Criminal Appeals' judgment affirming the award of restitution and remand the cause to that court for entry of an order consistent with this opinion. REVERSED AND REMANDED. MADDOX, COOK, SEE, LYONS, and ENGLAND, JJ., concur. HOOPER, C.J., and HOUSTON, J., dissent. BROWN, J., recuses herself.[*] HOUSTON, Justice (dissenting). I dissent. The rationale for my dissent is excellently expressed in the opinion written by Judge McMillan. W.D.J. v. State, 785 So. 2d 385 (Ala.Crim.App.1998). HOOPER, C.J., concurs. [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

May 12, 2000

26bbf093-1839-46d3-922c-bc7367f0fba0

Matthews v. ALABAMA AGR. AND MECHANICAL UNIV.

787 So. 2d 691

1981259

Alabama

Alabama Supreme Court

787 So. 2d 691 (2000) Kevin D. MATTHEWS v. ALABAMA AGRICULTURAL AND MECHANICAL UNIVERSITY et al. 1981259. Supreme Court of Alabama. May 26, 2000. Rehearing Denied December 29, 2000. *692 Sherryl Snodgrass Caffey, Huntsville, for appellant. Melissa W. Larsen of Sirote & Permutt, P.C., Huntsville, for appellee. SEE, Justice. The plaintiff Kevin D. Matthews appeals from a summary judgment entered in favor of the defendants, Alabama Agricultural and Mechanical University ("A & M"); Dr. Virginia Caples, interim president of A & M; Amy Herring, university counsel for A & M; and Edwin Hayes, chief of A & M's Department of Public Safety (collectively, the "university employees"). We affirm in part, reverse in part, and remand the case for further proceedings consistent with this opinion. We view the facts in a light most favorable to Matthews. Matthews is a former student and former employee of A & M.[1]*693 On August 18, 1994, Matthews sued A & M, stating claims allegedly arising out of his employment contract with A & M.[2] Matthews alleges in this present case that after he had sued A & M, its officials began to harass him. On November 3, 1995, Matthews sent a letter to Chief Hayes complaining of, among other things, the alleged harassment. In response to Matthews's letter, A & M's director of human resources on November 7 sent a letter to Matthews advising him that, because of Matthews's then pending action against A & M, she was turning his letter over to A & M's counsel, Ms. Herring. Matthews alleges: On November 21, Matthews visited the A & M library. As he was leaving the library, he was stopped by Chief Hayes and other A & M police officers. One of the officers, Lt. Raymond Johnson, told Matthews that he was trespassing and that if he returned to the A & M campus that day he would be arrested. Johnson also placed a "criminal-trespass-warning" form on Matthews's car. The form provides for an acknowledgment by the person being warned. If the trespasser refuses to complete the acknowledgment, the form instructs the issuing officer to complete the following provision: Lt. Johnson completed that part of the form, but he incorrectly wrote in his own name as the name of the person being warned. Matthews drove away. Lt. Johnson then discovered his error in completing the form and filled out another one, but this time he incorrectly wrote the name "Calvin Matthew" as the name of the person warned. Kevin Matthews did not leave the A & M campus, but instead drove to another *694 building on the campus. There, he went to the office of Barbara Davis, the Alabama Education Association representative, who was assisting him in his action against A & M. Matthews complained to Davis about the incident involving the officers and the trespass warning. While Matthews was meeting with Davis, he was arrested by A & M police officers for criminal trespass; he was transported to the Huntsville city jail. On January 19, 1996, Matthews was tried in the Huntsville Municipal Court on the charge of criminal trespass, but was found not guilty. Matthews alleges that at the trial the A & M police officers who arrested him testified that they did so because Herring had instructed them to (and presumably not because he had violated any law). In January 1996, Matthews, through his attorney (presumably the same counsel who had represented him in the employment dispute with A & M), asked A & M whether he could attend a collegiate basketball tournament being held at the A & M gymnasium. Matthews alleges that Herring told him he would be arrested if he returned to A & M for any reason. On March 27, 1996, Matthews attended a meeting on the A & M campus, a meeting that Matthews alleges was open to the public. At the event, Chief Hayes issued Matthews a trespass warning and told him that if he returned to the A & M campus he would be arrested. On May 30, Matthews sued A & M and Caples, Herring, and Hayes, alleging state-law tort claims of false imprisonment, malicious prosecution, libel and slander, negligence, and the tort of outrage, and violations of federal and state constitutional rights.[3] Matthews asserted claims under the Constitution of Alabama of 1901 of "denial of due process," "illegal search and seizure," "denial of freedom of association," and "denial of equal protection." Matthews petitioned in the alternative for a writ of mandamus, a writ of certiorari, or an injunction, ordering the defendants "to withdraw [the] trespass warning" and "enjoin[ing] [them] from denying him the right to have public access to [the university]." Matthews further sought relief pursuant to Alabama's Declaratory Judgments Act, specifically under Ala.Code 1975, § 6-6-223. Matthews seeks compensatory and punitive damages and declaratory and injunctive relief. On July 1, the defendants removed the action to the United States District Court for the Northern District of Alabama. After removal, the defendants moved for a summary judgment. The district court granted the defendants' motion for a summary judgment as to all of Matthews's federal-law claims and remanded Matthews's state-law claims to the state circuit court. In the circuit court, the defendants moved for a summary judgment as to all of Matthews's remaining claims, arguing that they are entitled to sovereign immunity, pursuant to Ala. Const. of 1901, art. I, § 14, and that Matthews's state constitutional claims are not cognizable under Alabama law. The circuit court granted the defendants' motion. In its order, the circuit court held that "Alabama law does not recognize a direct cause of action for monetary damage under the [Alabama] [C]onstitution," that A & M was "absolutely immune from [Matthews's] tort claims" under § 14, and that Matthews's tort "claims against the University officials in their official capacities are merely another method of asserting claims against Alabama A & M University." Implicit in the trial court's *695 order is a finding that Matthews sued the University employees in their official capacities. Matthews appeals the circuit court's summary judgment. The defendants moved for a summary judgment on the grounds that they are immune to Matthews's claims and that Alabama law does not recognize a direct cause of action for violations of the Constitution of Alabama of 1901. Immunity is an affirmative defense that the defendant must plead and prove. See Lightfoot v. Floyd, 667 So. 2d 56, 64 (Ala.1995); Phillips v. Thomas, 555 So. 2d 81, 86 (Ala.1989); Rule 8, Ala. R. Civ. P. Our standard for reviewing a defendant's summary judgment based on an affirmative defense is well established: Wal-Mart Stores, Inc. v. Smitherman, 743 So. 2d 442, 444-45 (Ala.1999) (citations omitted; omission in Wal-Mart); see also Carroll ex rel. Slaught v. Hammett, 744 So. 2d 906, 908 (Ala.1999) (affirmative defense of discretionary-function immunity). Matthews argues that the trial court erred in granting the defendants' motion for a summary judgment because, he argues, they failed to make a prima facie showing that they were entitled to a judgment as a matter of law.[4] Matthews *696 contends that the defendants failed to make a prima facie showing because they did not support their motion with affidavits or produce any other evidence, but instead relied solely on the pleadings. We agree that the defendants failed to make a prima facie showing. Under Rule 56(b), Ala. R. Civ. P., the defendants were not required to produce affidavits in support of their motion; however, as the moving parties, they were required to produce evidence in support of their motion showing (1) that there was no genuine issue of material fact as to any element of the affirmative defense and (2) that they were entitled to a judgment as a matter of law based on that affirmative defense. See Smitherman, 743 So. 2d at 444-45. If the defendants did not make that prima facie showing, then the burden did not shift to Matthews. See Chilton v. City of Huntsville, 584 So. 2d 822, 824 (Ala.1991). In support of their motion for a summary judgment, A & M and the university employees argued that they are agents of the State of Alabama and, therefore, are immune from suit by § 14 of the Constitution of Alabama of 1901. The defendants produced no admissible evidence in support of their motion for summary judgment. Their motion was supported entirely a memorandum of law and the allegations in Matthews's amended complaint. At the time the defendants moved for a summary judgment, they had not filed an answer denying the allegations of Matthews's complaint. Moreover, there is no indication that when they moved for a summary judgment discovery had been completed. Therefore, we must determine whether, based on the allegations in Matthews's complaint, the defendants satisfied their burden of production to make a prima facing showing. If they did not, then the burden did not shift to Matthews to produce substantial evidence to refute the immunity defense. See Bradford v. Universal Constr. Co., 644 So. 2d 864, 866 (Ala.1994); Underwood v. Allstate Ins. Co., 590 So. 2d 258, 259 (Ala.1991). Thus, whether the defendants made a prima facie showing depends on whether they are immune from suit under § 14 of the Constitution of Alabama of 1901 as a matter of law, based on the allegations in Matthews's amended complaint. See Phillips, 555 So. 2d at 84 (stating that the question whether a state officer or employee is entitled to qualified/substantive/discretionary-function immunity is a question of law to be decided by the trial court). Section 14 of the Constitution of Alabama of 1901 provides: "[T]he State of Alabama shall never be made a defendant in any court of law or equity." This Court "ha[s] interpreted § 14 as affording absolute immunity to some State officials, as well as to the State itself, and extending a qualified immunity to others." DeStafney v. University of Alabama, 413 So. 2d 391, 392 (Ala.1982) (opinion on application for rehearing). Alabama A & M University is an instrumentality of the State of Alabama and, thus, is absolutely immune from suit under § 14. See, e.g., Ex parte Craft, 727 *697 So. 2d 55, 58 (Ala.1999); Rigby v. Auburn Univ., 448 So. 2d 345, 347 (Ala.1984); Taylor v. Troy State Univ., 437 So. 2d 472, 474 (Ala.1983); Hutchinson v. Board of Trustees of Univ. of Alabama, 288 Ala. 20, 256 So. 2d 281 (1971); Cox v. Board of Trustees of Univ., 161 Ala. 639, 49 So. 814 (1909). Therefore, the trial court properly entered the summary judgment in favor of A & M, and we affirm that part of the trial court's judgment. Initially, we address the question whether Matthews's claims against the university employees are asserted against them in their official capacities or in their individual capacities. The trial court determined that Matthews had sued the university employees in their official capacities, and, therefore, concluded that they were immune from suit, under § 14. Based on the allegations in his amended complaint, we disagree with the conclusion that Matthews sued the university employees in their official capacities. Yet, had Matthews sued the university employees in their official capacities and had sought to recover money damages, to that extent the trial court is correct that they would be entitled to absolute immunity under § 14. See DeStafney, 413 So. 2d at 393 ("`[W]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.'"); Phillips, 555 So. 2d at 83 ("State officers and employees, in their official capacities and individually,... are absolutely immune from suit when the action is, in effect, one against the State."). To the extent Matthews might have sued the university employees in their official capacities and sought injunctive or declaratory relief, however, the trial court erred in stating that they are entitled to absolute immunity under § 14. See Ex parte Alabama Dep't of Forensic Sciences, 709 So. 2d 455, 457 (Ala.1997); Gill v. Sewell, 356 So. 2d 1196, 1198 (Ala. 1978); Unzicker v. State, 346 So. 2d 931 (Ala.1977) (declaratory-judgment action). We understand Matthews's amended complaint to assert claims against the university employees in their individual capacities. In his amended complaint, Matthews sued the university employees, alleging (1) false imprisonment; (2) malicious prosecution; (3) libel and slander; (4) negligence; (5 through 7) several state constitutional violations; and (8) the tort of outrage; and seeking, in counts 9 and 10, declaratory relief and injunctive relief, respectively. Matthews alleges that the university employees violated "clearly established Constitutional and statutory rights," that they "exceed[ed] the scope of their statutory and administrative authority," and that they acted willfully, fraudulently, outrageously, and maliciously. The university employees did not file an answer or any other pleading denying the allegations in Matthews's complaint, nor did they produce any admissible evidence in support of their motion for summary judgment. Thus, the university employees, in moving for a summary judgment based on the allegations in Matthews's complaint, did not make a prima facie showing and thereby shift the burden to Matthews to produce substantial evidence. See Underwood v. Allstate Ins. Co., 590 So. 2d 258, 259 (Ala.1991); cf. Pack, 612 So. 2d at 403. Because Matthews has alleged in his amended complaint that the university employees acted willfully, maliciously, fraudulently, and beyond their authority, and because the university employees presented no evidence indicating that they were exercising a discretionary function when Matthews was arrested for *698 allegedly trespassing on the A & M campus, but instead relied solely on the pleadings, we cannot conclude that they are entitled either to sovereign immunity or to qualified/substantive/ discretionary-function immunity. See Ex parte Alabama Dep't of Forensic Sciences, 709 So. 2d 455, 457 (Ala.1997); Wright v. Wynn, 682 So. 2d 1, 2 (Ala.1996); Pack v. Blankenship, 612 So. 2d 399, 403 (Ala.1992); Phillips, 555 So. 2d at 86 (holding that to be entitled to qualified/substantive/discretionary-function immunity at the summary-judgment stage, the defendant must meet his burden of showing that the alleged tortious act or omission arose out of a discretionary function). Therefore, the trial court erred in entering a summary judgment in favor of the university employees on the false-imprisonment, malicious-prosecution, libel and slander, negligence, and outrage counts (counts 1 through 4 and count 8). The trial court also erred in entering a summary judgment in favor of the university employees on Matthews's claims for declaratory and injunctive relief in counts 9 and 10; such claims come within exceptions to the sovereign immunity provided by § 14. See Phillips, 555 So. 2d at 83; Aland v. Graham, 287 Ala. 226, 250 So. 2d 677 (1971). Matthews also alleges that the university employees violated certain rights he claims are guaranteed to him by the Constitution of Alabama of 1901. For these alleged violations, Matthews seeks both compensatory and punitive damages. However, Matthews presented no authority to the trial court, and he has presented no authority to this Court, that recognizes a private cause of action for monetary damages based on violations of the provisions of the Constitution of Alabama of 1901, and we have found none. Accord Ross v. Alabama, 893 F. Supp. 1545, 1555 (M.D.Ala.1995) (finding no authority under Alabama law for bringing an action seeking monetary damages against a state employee for violations of state constitutional law). Therefore, the trial court properly entered the summary judgment in favor of the university employees on counts 5 (A and B) through 7. See Henderson v. Alabama A & M Univ., 483 So. 2d 392 (Ala. 1986) ("`Where an appellant fails to cite any authority, we may affirm, for it is neither our duty nor [our] function to perform all the legal research for an appellant.'"). Accordingly, we affirm the summary judgment in favor of A & M on all counts and in favor of the university employees on the counts alleging state constitutional violations (counts 5 through 7); we reverse the summary judgment in favor of the university employees on the counts alleging false imprisonment, malicious prosecution, libel and slander, negligence, and the tort of outrage and on the counts seeking declaratory relief and injunctive relief (counts 1 through 4 and counts 8 through 10); and we remand the case for further proceedings consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HOUSTON, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. HOOPER, C.J., and MADDOX and COOK, JJ., concur in the result. JOHNSTONE, Justice (concurring). I concur, but with the reservation that the Restatement (Second) of Torts, § 895D, Public Officers (1974), and not § 14 of the Alabama Constitution of 1901, is the current basis for Alabama's doctrine of qualified immunity, DeStafney v. University of Alabama, 413 So. 2d 391, 393 *699 (Ala.1981), although I recognize that some of our cases, including DeStafney, contain language to the contrary. [1] The following facts are based on Matthews's verified complaint and the memorandum opinion of the United States District Court for the Northern District of Alabama, Northeastern Division, to which this case was removed. Matthews v. Alabama A & M Univ., No. CV-96-S-1704-NE (N.D. Ala., June 24, 1997). After ruling on the merits of Matthews's federal-law claims, the federal district court remanded the case to the state court. [2] That action is not the subject of this appeal. The facts and procedural history of Matthews's prior action against A & M are stated in Matthews v. Alabama Agricultural & Mechanical University, 716 So. 2d 1272 (Ala.Civ. App.1998). In that action, Matthews sued A & M, its president, and the board of trustees, alleging that A & M had breached its employment contract with him and had denied him his federal and state constitutional due-process rights. The trial court entered a summary judgment in favor of the defendants, and Matthews appealed. The Court of Civil Appeals reversed the summary judgment on the breach-of-contract and due-process claims, holding that there were genuine issues of material fact as to whether Matthews had a contract of continuing employment with A & M; affirmed the summary judgment to the extent that Matthews sought monetary damages against A & M, its president, and its board of trustees, holding that the defendants were entitled to sovereign immunity; and reversed the summary judgment to the extent that Matthews sought declaratory and injunctive relief. The events giving rise to Matthews's breach-of-contract action serve as a backdrop to the events giving rise to this present appeal. [3] The defendants take the position that Matthews asserted his claims against them in their official capacities. However, the defendants' position is not supported by the complaint, which does not assert that the defendants are sued in their official capacities. [4] Matthews also argues that the defendants are precluded, under the doctrines of res judicata and collateral estoppel, from raising the arguments in their motion for summary judgment because the same arguments were raised in the defendants' motion for summary judgment in the federal district court. However, in his brief, Matthews makes no argument and presents no legal authority whatever in support of this issue. Thus, this Court need not consider this argument. See Henderson v. Alabama A & M Univ., 483 So. 2d 392 (Ala.1986). Moreover, Matthews's argument is clearly without merit, because the federal district court ruled only on the merits of Matthews's federal-law claims. As for Matthews's state-law claims, the district court declined to exercise its supplemental jurisdiction and remanded the claims to the state trial court. Therefore, the defendants are not precluded either by the doctrine of collateral estoppel or by the doctrine of res judicata from raising their arguments concerning Matthews's state-law claims. See Dairyland Ins. Co. v. Jackson, 566 So. 2d 723 (Ala.1990). Matthews also makes several procedural arguments in support of his contention that the trial court erred in granting the defendants' motion for summary judgment. Matthews contends that the trial court erred in allowing the defendants to reply to Matthews's opposition. We conclude that the trial court did not abuse its discretion under Rule 56 in allowing the defendants to reply to Matthews's opposition. Matthews argues that the defendants failed to comply with Rule 56(c)(1), because their motion for a summary judgment was not supported by a narrative summary of what they contend to be the undisputed material facts. The gist of Matthews's argument is that the defendants are required under Rule 56 to present facts concerning each and every one of his claims. This argument is clearly without merit. Under Rule 56(c)(1), the movant is required to support his motion with "a narrative summary of what the movant contends to be the undisputed material facts." The defendants in this case did exactly that; they filed a statement of what they contend to be the undisputed material facts. (C. at 94-96.) That the defendants' statement of undisputed facts is based on the pleadings is expressly permitted by Rule 56(c)(1). As Rule 56(a) recognizes, a movant is not required to support its motion for a summary judgment with affidavits.

May 26, 2000

f12fcbf7-c9ff-44ab-b0c9-c5f1f15dbdd0

Carroll v. Shoney's, Inc.

775 So. 2d 753

1981175

Alabama

Alabama Supreme Court

775 So. 2d 753 (2000) Willie Gene CARROLL, as administrator of the estate of Mildred K. Harris, deceased v. SHONEY'S, INC., d/b/a Captain D's Restaurant. 1981175. Supreme Court of Alabama. March 3, 2000. Dissenting Opinion Modified on Denial of Rehearing May 12, 2000. *754 Stephen M. NeSmith of Riggs & NeSmith, P.A., Montgomery, for appellant. Charles A. Stewart III, Patrick L.W. Sefton, and Brian P. Strength of Sirote & Permutt, P.C., Montgomery, for appellee. MADDOX, Justice. Willie Gene Carroll, as administrator of the estate of Mildred K. Harris, deceased, filed a wrongful-death action against Shoney's Inc., d/b/a Captain D's Restaurant (hereinafter "Captain D's"), and Ronnie Harris, Mildred Harris's husband. Willie Gene Carroll is Mildred Harris's father. The trial judge dismissed the claim against Ronnie Harris, and entered a summary judgment for Captain D's. Ms. Harris, an employee of Captain D's, died as a result of a gunshot wound inflicted by Ronnie Harris while she was working at the Captain D's restaurant. The legal issue presented is whether Captain D's can be held liable for Ms. Harris's death, which resulted from a criminal act of a third partyher husband. The trial judge ruled that it could not, and entered a summary judgment in favor of Captain D's. Carroll appeals from that summary judgment, arguing that in a similar case this Court held that these facts present a jury question. After thoroughly reviewing the record and the applicable law, we hold that the trial judge properly entered the summary judgment in favor of Captain D's; consequently, we affirm. The facts, viewed in the light most favorable to Carroll, as the nonmovant, suggest the following: On the evening of September 22, 1995, Mildred Harris was working at Captain D's. Adrian Edwards, the relief manager, was also working that evening. Ms. Harris told Edwards that, the night before, her husband, Ronnie Harris, had beaten and choked her and that he had threatened her. Ms. Harris told Edwards that she was afraid of Ronnie Harris and that she did not want to talk to him. Ms. Harris asked Edwards to telephone the police if Ronnie Harris appeared at the restaurant that evening. Around 10 o'clock that evening, while Ms. Harris was working in the rear of the restaurant, Ronnie Harris came in. He pushed his way past Edwards and went to the back of the restaurant, where he confronted Ms. Harris. He told Ms. Harris that he was going to "get her." Edwards and another employee repeatedly told Ronnie Harris to leave, but he continued yelling at Ms. Harris. Edwards telephoned the police; the officer who responded to the call escorted Ronnie Harris from the restaurant. The police detained him briefly; they released him after learning that Captain D's was not going to press charges. Evidence was presented indicating that after that confrontation Ms. Harris asked employees of Captain D's to help her hide from her husband; there was evidence indicating that she was taken to a motel in Montgomery and that her fellow employees lent her enough money to pay for the motel room. The next day, September 23, 1995, Edwards reported for work and told the restaurant manager, Rhonda Jones, about the incident that had occurred the night before, i.e., that Ronnie Harris had threatened Ms. Harris, and that the police had to be called to remove Ronnie Harris from the restaurant. Edwards also told Jones *755 that Ms. Harris had said that she was afraid to return to work. At some point after the conversation, Ms. Harris telephoned Jones and asked to be excused from work that evening. Ms. Harris told Jones that she and her husband had been fighting and that she was afraid of him. Jones told Ms. Harris to come into work; and she also told Ms. Harris that if Ronnie Harris showed up, she would telephone the police. Ms. Harris went to work that evening, and was working at the front counter. At some point during her shift, Ronnie Harris walked into the restaurant, pulled out a pistol, and shot Ms. Harris in the back of the head. Ms. Harris died as a result of the gunshot wound. A summary judgment is appropriate when there is no genuine issue of material fact and the nonmovant is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P. When reviewing a ruling on a motion for a summary judgment, this Court uses the same standard of review the trial court used "in determining whether the evidence before the court made out a genuine issue of material fact." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988). When a party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assur. Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). In reviewing a ruling on a motion for a summary judgment, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Renfro v. Georgia Power Co., 604 So. 2d 408, 411 (Ala.1992). The general rule is that an employer is not liable to its employees for criminal acts committed by third persons against an employee. Gaskin v. Republic Steel Corp., 420 So. 2d 37 (Ala.1982). Carroll contends, however, that this case falls within an exception to that rule, i.e., when a special relationship or special circumstances create a duty to protect an invitee or an employee from the criminal acts of a third party. Such a duty arises where the criminal conduct was foreseeable. Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368, 1371 (Ala.1986). The plaintiff argues that the facts of this case are "strikingly" similar to the facts set out in Thetford v. City of Clanton, 605 So. 2d 835, 841 (Ala.1992). In Thetford, the trial court entered a summary judgment for the defendants in a wrongful-death action. In that case, the wife, after telephoning the sheriffs department because her husband had allegedly abused her, checked into a Holiday Inn motel, under a fictitious name. She requested that her husband not be allowed to enter her room. Two days later, her husband arrived and asked the manager to let him into her room. The manager used his pass key to open the door and then cut the chain off the door to admit the husband. The wife was beaten to death several hours later at a different motel. A majority of this Court reversed the summary judgment for Holiday Inn and the manager, holding that foreseeability of harm was a jury question based on the facts of that case.[1] Carroll contends that, *756 in light of the circumstances and the relationship that existed between Captain D's and its employee Mildred Harris the exception to the general rule is applicable. Carroll argues that he presented substantial evidence in opposition to the motion for summary judgment creating a genuine issue of material fact as to whether the fatal shooting of Mildred Harris by her husband was foreseeable. We disagree. It is well settled that absent a special relationship or special circumstances a person has no duty to protect another from criminal acts of a third person. See Ex parte McRae's of Alabama, Inc., 703 So. 2d 351 (Ala.1997), and the cases cited therein, where the Court noted: "`[T]he general rule in Alabama [is] that absent special relationships or circumstances, a person has no duty to protect another from criminal acts of a third person.'" 703 So. 2d at 351 (quoting Moye, 499 So.2d at 1370). See, also, Broadus v. Chevron USA, Inc., 677 So. 2d 199 (Ala.1996); and Steiger v. Huntsville City Bd. of Educ., 653 So. 2d 975 (Ala.1995). We recognize, of course, that this Court has held that "[t]here is a singular exception to this general rule, which arises where `the particular criminal conduct was foreseeable.'" Moye, 499 So. 2d at 1371, quoting Henley v. Pizitz Realty Co., 456 So. 2d 272, 276 (Ala.1984). This Court has also recognized that this exception can apply to employers in certain circumstances. See Parham v. Taylor, 402 So. 2d 884, 885 (Ala.1981) ("[I]n certain circumstances an employer may have a civil liability to his employees for the criminal acts of third persons: ... [H]owever ... `employers should not be saddled with such liability except in the most extraordinary and highly unusual circumstances.'" 402 So. 2d at 886, quoting Thoni Oil Magic Benzol Gas Stations, Inc. v. Johnson, 488 S.W.2d 355 (Ky.1972)). Parham involved an action by a convenience-store clerk who had been shot during a robbery at the store, at which previous robberies had occurred. We believe that Carroll has failed to show how this case falls outside the general rule that a person has no duty to protect another from criminal acts of a third person.[2] Alabama law requires a plaintiff to show three elements to establish a duty that would be the basis for a cause of action such as the one presented in this case. Moye, 499 So. 2d at 1370. First, the particular criminal conduct must have been foreseeable. Second, the defendant must have possessed "specialized knowledge" of the criminal activity. Third, the criminal conduct must have been a probability.[3] *757 Viewing the facts most favorably to Carroll, as we are required to do, and applying the law to those facts, we conclude that the plaintiff has not presented evidence creating a genuine issue of material fact as to Captain D's liability. The particular criminal conduct in this case was a murder. Unlike Hail v. Regency Terrace Owners Ass'n, [Ms. 1981397, December 22, 1999] ___ So.2d ___ (Ala.1999)(see note 1, supra), there was no evidence in this case that any employee of Captain D's was told, or should have reasonably foreseen, that Ronnie Harris would enter the Captain D's restaurant and murder his wife. Admittedly, there was evidence that Mildred Harris and her husband had been fighting, and that she had requested permission to be away from work for that reason, but the evidence also indicated that she had made similar requests on other occasions for the same reason. During his deposition, Carroll, who is Mildred Harris's father, admitted that he had no reason to think that Ronnie Harris would shoot Mildred Harris.[4] Based on the foregoing, we fail to see how Captain D's can be held responsible for Ms. Harris's death. Consequently, we affirm the judgment of the trial court. Captain D's filed a motion in this Court to strike various affidavits and records submitted by Carroll. In view of our holding, this issue is moot. We therefore deny the motion. MOTION TO STRIKE DENIED; AFFIRMED. HOOPER, C.J., and HOUSTON, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., dissents. JOHNSTONE, Justice (dissenting). The crucial issue is not whether the murder was foreseeable, but whether violence and injury, fatal or not, were foreseeable. Had the husband slapped the deceased, would anyone say the slapping was not foreseeable? If he had blackened her eye or broken her nose or knocked her teeth down her throat, would anyone say any of these batterings was not foreseeable? Is the defendant less liable because the husband killed her? "[A plaintiff] is not required to prove `that the particular consequence should have been anticipated, but rather that some general harm or consequence could have been anticipated.'" Hail v. Regency Terrace Owners Ass'n, [Ms. 1981397, December 22, 1999] ___ So.2d ___, ___ (Ala.1999), quoting Thetford v. City of Clanton, 605 So. 2d 835, 840 (Ala.1992). On the day of the killing, the defendant's manager Rhonda Jones was, at all pertinent times, acting within the line and scope of her agency for the defendant itself. Jones was informed of the decedent's husband's angry trespass into the back of the restaurant and angry threat against the deceased during the preceding night. Jones was informed that the incident was so bad the restaurant personnel needed to call the police in order to remove the husband. Jones was informed that the *758 deceased had told her co-workers that her husband had beaten her two days earlier and that she thought that he would kill her. Nonetheless, Jones refused the deceased's plea to be excused from work, ordered the deceased to report to work, and promised to protect the deceased at work. Jones then assigned the deceased to work at the counter, where she was more exposed to violence from her husband than she would have been on virtually any other assignment within the restaurant. The husband's injuring the deceased was not just foreseeable[5] but was expectable. The main opinion, citing Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368 (Ala. 1986), observes: 775 So. 2d 756. All three elements are abundantly present in the case before us. As already discussed, violence by the husband was so obviously foreseeable that the manager of the restaurant expressly promised to protect the deceased from the husband. Second, the manager had specialized knowledge of the husband's trespass, abuse, and threat the preceding night, the battery he had committed on the deceased two days earlier, and the deceased's perception of the danger he posed. Third, the husband's criminal conduct was a probability if not a certainty: the night before, he had pushed his way past a restaurant employee and trespassed into the back of the store in order to threaten the deceased that he was going to "get her." To absolve the defendant of liability, the main opinion cites the rationale of Moye, supra, "that crime can and does occur despite society's best efforts to prevent it." 775 So. 2d at 756 (n. 3). Society did not exert its best efforts to prevent the crime committed on the deceased in the case before us. Rather the defendant, through its managerial personnel, demonstrated a preoccupation with the logistics of fast food and an irresponsible disregard for the notorious dangers of spouse abuse and the public policy of this state, expressed in a number of recent statutes,[6] against spouse abuse. Foreseeability is a matter of common sense. The decision of this Court in this case will send a message whether we think common sense entails recognizing the danger, of demonstrated spouse abuse. MADDOX, Justice. APPLICATION OVERRULED. HOOPER, C.J., and HOUSTON, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., dissents, and modifies his March 3, 2000, dissenting opinion. [1] Recently, this Court addressed an issue similar to the issue presented in this case in Hail v. Regency Terrace Owners Ass'n, [Ms. 1981397, December 22, 1999] ___ So.2d ___ (Ala.1999). In Hail, the plaintiff, after her husband was killed in a fire in their apartment building, filed a wrongful-death action based on premises liability against the owner of the apartment complex. In the 13 months preceding the fire that killed Mr. Hail, there had been 8 to 13 fires in the same building the Hails lived in. All of those fires were suspected arson fires. This Court held that, based on the facts and circumstances of that case, the trial court erred in entering a summary judgment for the apartment complex owner. This Court concluded that the evidence in that case, although it did not establish that the plaintiff was entitled to a judgment against the apartment complex owners, did present a jury question on the issue of foreseeability. We believe that the facts in Hail, like those in Thetford, are distinguishable from those presented in this case. [2] In Moye, 499 So. 2d at 1370, this Court stated that it has "consistently and vigorously affirmed summary judgments in favor of the defendant premises owner/employer on the issue of whether the defendant was negligent in failing to protect its invitee/employee from such crimes." [3] "It is [the] recognition of the harsh reality that crime can and does occur despite society's best efforts to prevent it that explains this Court's requirement that the particular conduct be foreseeable and that the defendant have `specialized knowledge' that criminal activity which could endanger an invitee was a probability." Moye, 499 So. 2d at 1372. Cf. Guerrero v. Memorial Medical Center of East Texas, 938 S.W.2d 789 (Tex.App.1997). In Guerrero, a woman was killed by her estranged husband while she was at work. The facts of that case are similar to the facts here: The husband came to the employer's premises, took the victim by the arm, and tried to get her to leave with him. The supervisor reported the incident to security, and the security officer ordered the husband to leave the premises. The following day, the wife telephoned her supervisor and requested that the supervisor meet her in the parking lot, because she was afraid her husband would be waiting for her. The supervisor asked security to escort the wife into the building, which it did. About two hours later, one of the officers saw the husband, took him by the arm, told him to leave the premises, and threatened to file criminal trespass charges against him if he refused. Within 20 minutes the husband returned and shot and killed the wife on the employer's premises. The trial court entered a summary judgment for the employer, and the appellate court affirmed, holding that the husband's criminal act was not foreseeable and that the employer had no duty to protect the wife from her husband. [4] Carroll's deposition (C. 117-18) shows the following exchange: "Q. Before Mildred Harris was killed, did you have any reason to think that Ronnie Harris was going to take a gun and shoot your daughter? "A. No. I didn't." [5] To resolve the common-sense issue of foreseeability, this Court need not resort to the intermediate appellate courts of Texas for guidance, as the main opinion does in citing Guerrero v. Memorial Medical Center of East Texas, 938 S.W.2d 789 (Tex.App.1997). Even if foreseeability were such an odd and abstruse concept that we needed such guidance, Guerrero is distinguishable on its facts. [6] See, e.g., Crime Victims' Rights Act, §§ 15-23-60 through-84, Ala.Code 1975; Custody and Domestic or Family Abuse Act, §§ 30-3-130 through -136, Ala.Code 1975; Domestic Violence Facilities Act, §§ 30-6-1 through - 11, Ala.Code 1975; Protection From Abuse Act, §§ 30-5-1 through -11, Ala.Code 1975; Stalking, §§ 13A-6-90 and -91, Ala.Code 1975. See also § 30-2-52, Ala.Code 1975.

May 12, 2000

168d6101-7391-4aba-a105-cb01262999f4

Cutler v. Orkin Exterminating Co., Inc.

770 So. 2d 67

1980685

Alabama

Alabama Supreme Court

770 So. 2d 67 (2000) Helon H. CUTLER et al. v. ORKIN EXTERMINATING COMPANY, INC., et al. 1980685. Supreme Court of Alabama. May 5, 2000. *68 J. Michael Rediker, Patricia Diak, and Michael Skotnicki of Ritchie & Rediker, L.L.C., Birmingham; Stephen T. Etheredge and Lexa E. Dowling, Dothan; Rufus R. Smith, Dothan; and L. Andrew Hollis of Pittman, Hooks, Dutton & Hollis, P.C., Birmingham, for appellants. Michael W. Davis and Stephan V. Beyer of Sidley & Austin, Chicago, Illinois; John M. Johnson and Stephen J. Rowe of Light-foot, Franklin & White, L.L.C., Birmingham; and D. Taylor Flowers of Lewis, Brackin & Flowers, Dothan, for appellees. *69 LYONS, Justice. Helon H. Cutler and Mary Lewin, plaintiffs and class representatives in this class-action lawsuit, appeal from the trial court's dismissal of certain class members. We affirm. Cutler and Lewin filed a class-action complaint in February 1996 against Orkin Exterminating Company, Inc.; its parent company, Rollins, Inc.; and several individuals. (All defendants are collectively referred to hereinafter as "Orkin.") The plaintiffs (hereinafter referred to as "the Homeowners") allege that Orkin failed to properly perform annual reinspections of buildings pursuant to statutory and contractual mandates. In November 1997, the trial court certified a class consisting of past and present Orkin termite-control customers in Alabama. The trial court approved a class notice in January 1998. In February 1998, Orkin petitioned this Court for a writ of mandamus, seeking to have this Court overturn the class certification. This Court denied the petition on March 5, 1998 (docket no. 1970767, not reported). Notice was mailed in early May 1998 to approximately 48,000 Orkin customers. After the expiration of the opt-out period, approximately 37,000 members remained in the class. In May 1998, just before the class notices were mailed, Orkin moved to dismiss approximately 5,300 class members, those whose contracts with Orkin contained an arbitration clause. The arbitration clause at issue in this case is a part of a standard-form document entitled "Orkin Exterminating Company, Inc. Subterranean Termite Agreement," which Orkin began to use in 1994. The trial court granted Orkin's motion to dismiss in August 1998 and made its order final pursuant to Rule 54(b), Ala. R. Civ. P., in December 1998.[1] The Homeowners appealed. In the meantime, in January 1999, Orkin filed a second petition for a writ of mandamus, seeking to have this Court decertify the class. This Court denied that petition on February 5, 1999 (docket no. 1980634, not reported). The sole issue in this case is whether the trial court erred in dismissing the class members whose contracts contain arbitration clauses ("the dismissed Homeowners"). The class representatives, Cutler and Lewin, although neither has an arbitration clause in her contract with Orkin, argue that the arbitration clause in Orkin contracts is unenforceable on the ground of unconscionability. Cutler and Lewin executed their contracts with Orkin before 1994; therefore, their contracts do not contain an arbitration clause. Orkin argues that because the class representatives did not execute contracts containing an arbitration clause, they do not have standing to represent the dismissed Homeowners. The Homeowners argue that because this Court has denied two mandamus petitions in which Orkin challenged the class certification, Cutler and Lewin's representation of the class has now been established. We respond first to the Homeowners' argument. This Court has stated that because of the extraordinary nature of a writ of mandamus, the denial of relief by mandamus does not have res judicata effect. Jack Ingram Motors, Inc. v. Ward, 768 So. 2d 362 (Ala.1999); Quality Truck & Auto Sales, Inc. v. Yassine, 730 So. 2d 1164 (Ala.1999). See also R.E. Grills, Inc. v. Davison, 641 So. 2d 225, 229 (Ala.1994) (denial of a petition for a writ of mandamus "does not operate as a binding decision on the merits"). The fact that we denied Orkin's two mandamus petitions does not prevent us from addressing the question whether Cutler and Lewin can adequately represent the dismissed Homeowners. We now turn to Orkin's argument. The issue of adequacy of representation is *70 not one of standing. "As long as the representative parties have a direct and substantial interest, they have standing; the question whether they may be allowed to present claims on behalf of others who have similar, but not identical, interests depends not on standing, but on an assessment of typicality and adequacy of representation." 7B Charles Alan Wright et al., Federal Practice & Procedure § 1785.1 at 141 (2d ed.1986). See also 1 Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 2.07 at 2-40 to -41 (3d ed.1992) (whether a named plaintiff may assert the rights of other class members is not a standing issue, but depends on whether the named plaintiff meets the prerequisites of Rule 23 governing class actions). Rule 23(a), Ala. R. Civ. P., provides the following prerequisites to maintaining a class action: (Emphasis added.) The United States Supreme Court has said that the commonality and typicality criteria of Rule 23(a), which "serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence," tend to merge with the adequacy-of-representation requirement. General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 157 n. 13, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982).[2] "The commonality requirement is interdependent with the impracticability of joinder requirement," and together, those requirements "`form the underlying conceptual basis supporting class actions.'" In re American Med. Sys., Inc., 75 F.3d 1069, 1080 (6th Cir.1996) (quoting 1 Newberg, supra, § 3.10, at 3-47). See also Califano v. Yamasaki, 442 U.S. 682, 701, 99 S. Ct. 2545, 61 L. Ed. 2d 176 (1979), in which the Supreme Court stated that class relief is "peculiarly appropriate" when the "issues involved are common to the class as a whole" and when they "turn on questions of law applicable in the same manner to each member of the class." "The typicality requirement is said to limit the class claims to those fairly encompassed by the named plaintiffs claims." General Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 330, 100 S. Ct. 1698, 64 L. Ed. 2d 319 (1980). In American Medical Systems, the United States Court of Appeals for the Sixth Circuit discussed the typicality requirement: 75 F.3d at 1082 (quoting 1 Newberg, supra, § 3-13 at 3-76). "`The claims actually litigated ... must simply be those fairly represented by the named plaintiffs.'" Andrews v. American Tel. & Tel. Co., 95 *71 F.3d 1014, 1023 (11th Cir.1996) (quoting Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir.1986)). The adequacy-of-representation requirement "is typically construed to foreclose the class action where there is a conflict of interest between the named plaintiff and the members of the putative class." General Tel. Co. v. EEOC, 446 U.S. at 331, 100 S. Ct. 1698. It also involves questions regarding whether the attorneys representing the class are "qualified, experienced, and generally able to conduct the proposed litigation." Griffin v. Carlin, 755 F.2d 1516, 1533 (11th Cir. 1985). Adequacy of representation requires that the class representative "`have common interests with unnamed members of the class'" and that the representative "`will vigorously prosecute the interests of the class through qualified counsel.'" American Med. Sys., 75 F.3d at 1083 (quoting Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir.1976)); see also General Tel. Co. v. Falcon, 457 U.S. at 157, 102 S. Ct. 2364. The attorneys representing the class are eminently qualified and experienced in handling class-action litigation. However, Cutler and Lewin's representation of the dismissed Homeowners, whose claims are subject to an arbitration clause, does not satisfy the first prong of the adequacy-of-representation requirement, nor does it satisfy the commonality and typicality requirements. The absence of an arbitration clause in the contracts executed by Cutler and Lewin could present a conflict of interest between them and the dismissed Homeowners, because the relevant questions of law in this case dealing with the availability of the contractual provision for arbitration are not applicable in the same manner to each member of the class. The impediment to litigation of the claims subject to arbitration is a matter as to which the named plaintiffs cannot fairly represent the class. See also Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S. Ct. 2295, 144 L. Ed. 2d 715 (1999). After evaluating all of the criteria set forth in Rule 23, we conclude that only a named plaintiff who has an arbitration clause in his or her contract with Orkin can adequately represent the dismissed Homeowners. The trial court's order of dismissal was not predicated on this rationale. However, we will affirm a trial court's judgment or order of dismissal if it is correct, even if the court has given a wrong reason in support of that judgment or order. Ex parte City of Fairhope, 739 So. 2d 35 (Ala.1999); Druid City Health Care Auth. v. Alabama State Health Planning & Dev. Agency, 482 So. 2d 1222 (Ala. Civ.App.1985). The trial court's order of dismissal is affirmed.[3] AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., concurs specially. JOHNSTONE, Justice (concurring specially). I am concurring subject to my understanding that the statute of limitations, or each statute of limitations, applicable to the claims being dismissed has been tolled throughout the time these class members have been members of the class. See First Baptist Church of Citronelle v. Citronelle-Mobile Gathering, Inc., 409 So. 2d 727 (Ala.1981), Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S. Ct. 2392, 76 L. Ed. 2d 628 (1983), and White v. Sims, 470 So. 2d 1191 (Ala.1985). [1] The trial court's order correctly reflects that the court dismissed the affected class members without prejudice. [2] Because the Alabama Rules of Civil Procedure were patterned after the Federal Rules of Civil Procedure, cases construing the federal rules are considered authority in construing the Alabama rules. Ex parte Scott, 414 So. 2d 939 (Ala.1982). [3] We do not here reach the question whether a dismissed Homeowner, one who has an arbitration clause in his or her contract, can intervene in this action as a named plaintiff on behalf of a subclass consisting of all Homeowners subject to an arbitration clause and attack the arbitration clause on a class-wide basis on the ground of unconscionability.

May 5, 2000

f71a7cf4-2cba-4a6c-9d15-2a8da41d2a66

Ex Parte Sullivan

779 So. 2d 1157

1990127

Alabama

Alabama Supreme Court

779 So. 2d 1157 (2000) Ex parte Carroll H. SULLIVAN. (In re State of Alabama v. Carroll H. Sullivan). 1990127. Supreme Court of Alabama. May 26, 2000. Rehearing Denied September 1, 2000. *1158 Donald M. Briskman of Briskman & Binion, P.C., Mobile, for petitioner. Bill Pryor, atty. gen., and James B. Prude, asst. atty. gen., for respondent State of Alabama. Frances Allen Long, Sr., Presiding Judge; and H. Ward McMillan, Sue Bell Cobb, Pamela W. Baschab, and James H. Fry, Judges, pro se, as Judges on the Alabama Court of Criminal Appeals. MADDOX, Justice. Carroll H. Sullivan, the defendant in a criminal case, petitions for a writ of mandamus directing the Court of Criminal Appeals to vacate its writ of mandamus directing the Mobile Circuit Court to vacate its order dismissing the indictment against Sullivan on the basis of double jeopardy. This case has a complicated history, which we will briefly recount in order to accurately characterize the issues and the procedural posture of this case. A related *1159 case, Ex parte Zimlich, [Ms. CR-98-1612, June 10, 1999] ___ So.2d ___ (Ala.Crim. App.1999), set aside by State v. Zimlich, [Ms. 1981536, May 5, 2000] ___ So.2d ___ (Ala.2000), provides the initial factual history of the current proceedings. We will paraphrase the pertinent facts found in Zimlich and then further explain how this case found its way to this Court. In 1993, a female patient died during surgery. Her family filed a medical-malpractice action, which was tried in the Mobile Circuit Court in 1995. Wayne Zimlich, a nurse anesthetist who had attended the operation, testified at that trial. He later admitted that his testimony was false. Zimlich claimed that he was coerced into giving false testimony by the insurance company, his doctor-employer, and the defense attorney for the insurance company. Sullivan defended Zimlich in the malpractice litigation in which Zimlich allegedly perjured himself. Following charges that Sullivan had suborned Zimlich's allegedly perjured testimony, a Mobile County grand jury indicted Sullivan for first-degree perjury, pursuant to § 13A-10-101, Ala.Code 1975, in October 1998, based on the testimony of Zimlich at the grand jury proceedings. The State procured Zimlich's cooperation by promising him that in his case it would make a favorable recommendation to the sentencing judge. Sullivan's trial was set for March 1, 1999. One month before the beginning of the trial, Zimlich began to equivocate as to whether he would testify in Sullivan's trial. His attorney informed the prosecutor that Zimlich would invoke his Fifth Amendment privilege unless the State offered him a better deal. The materials before us give no indication that a deal was ever struck, but three weeks before the start of the trial Zimlich affirmed that he would testify against Sullivan. The prosecutor never again spoke with Zimlich regarding his court appearance, so he proceeded with his case under the apparent assumption that Zimlich would not equivocate again. Sullivan's trial began on the scheduled day. On that day, a jury was empaneled and sworn, and the attorneys delivered their opening arguments. The court then recessed for the evening. On the following morning, the trial continued. The State called Zimlich as its first witness. After a lengthy discussion with the trial court, Zimlich invoked his Fifth Amendment privilege to remain silent. The trial court granted the State's motion for a mistrial, over Sullivan's objection. Sullivan immediately moved to dismiss the charge on the basis that a retrial would violate principles of double jeopardy. The trial court granted his motion, holding that jeopardy had attached when the jury was empaneled and sworn and that a second trial would be barred by the Constitution. The State, invoking Rule 15.7, Ala. R.Crim. P., appealed the ruling to the Court of Criminal Appeals. That court held that Rule 15.7 did not permit an appeal of this nature; it advised the State that its only remedy had to be by mandamus. State v. Sullivan, 741 So. 2d 1125 (Ala.Crim.App.1999). Pursuant to that court's recommendation, the State petitioned that court for a writ of mandamus directing the trial court to vacate its order dismissing the charge against Sullivan. The court issued the writ, holding that although jeopardy had attached, Zimlich's inconvenient refusal to testify constituted a "manifest necessity"[1] for a retrial. State v. Sullivan, 748 So. 2d 914 (Ala.Crim.App.1999). Sullivan then filed the instant petition with this Court for a writ of mandamus directing the Court of Criminal Appeals to vacate its writ. See Rule 21(e)(1), Ala. R.App. P. We condense Sullivan's arguments into two issues: (1) Does the fact that the order the State complains of was a final order bar the State from seeking review of *1160 it by a mandamus petition? and (2) Assuming mandamus relief is not barred by the fact that the order was a final order, was the State entitled to mandamus relief on the basis that a "manifest necessity" supported the trial court's declaration of a mistrial? Sullivan contends that mandamus relief was not available to the State because the trial court's order of dismissal, he says, was a final order, and, therefore, not "interlocutory in nature"that is the term frequently used to describe orders from which one may secure relief by the writ of mandamus. We have said many times that the writ of mandamus "is a drastic and extraordinary writ." Ex parte Horton, 711 So. 2d 979, 983 (Ala.1998). Rule 21(e)(4), Ala. R.App. P., reads, in pertinent part: Sullivan argues that this rule prevents the State from obtaining mandamus relief in this case because the trial court's order of dismissal was not interlocutory. We agree with Sullivan's characterization of the trial court's dismissal of the indictment as a final order, see generally United States v. Kessler, 530 F.2d 1246 (5th Cir.1976), but we do not agree with his proposition that Rule 21(e)(4), Ala. R.App. P., applies solely to interlocutory orders. No words in that rule limit the availability of mandamus relief to those situations where an order is interlocutory. Rather, the rule denotes a specific situation where mandamus relief will always lie, which is where a party seeks immediate appellate review of an interlocutory, unappealable order. This rule is not exclusionary. The Court of Criminal Appeals, as an intermediate appellate court with supervisory powers over courts of inferior jurisdiction, is still bound by the oftenstated principles governing when a writ of mandamus may issue. Those principles require that mandamus relief be afforded to a party only in "exceptional circumstances which amount to judicial usurpation of power." Ex parte Nice, 407 So. 2d 874, 878 (Ala.1981) (citing Will v. United States, 389 U.S. 90, 95, 88 S. Ct. 269, 19 L. Ed. 2d 305 (1967)). The present case provides an unusual theater, unique to the area of criminal law, for the consideration of a petition for mandamus relief. Here, the trial court has issued a final order, which the State is forbidden by law to appeal.[2] In Ex parte Nice, supra, this Court engaged in a lengthy discussion of the possibility of mandamus relief in criminal cases, where, as here, the State's appeal of a particular order is foreclosed by law. We stated: Ex parte Nice, 407 So. 2d at 879-80 (emphasis omitted). The power of an appellate court of this state to issue a writ of mandamus at the request of the State in a criminal case when the Legislature has not provided the remedy of appeal is not unqualified. We have said: Ex parte Nice, 407 So. 2d at 880 (citations omitted)(emphasis omitted). Clearly, a writ of mandamus is a supervisory order; thus, an appellate court may issue this writ in any situation, within recognized limits, where this writ is necessary to protect the proper judicial administration of the courts. The Court of Criminal Appeals had the authority to review the order of dismissal by considering the State's petition for the writ of mandamus. We are now left with the question whether the issuance of that writ by the Court of Criminal Appeals was appropriate. Sullivan argues that the Court of Criminal Appeals should have deferred to the trial court's discretionary ruling in which it concluded that no manifest necessity warranted its declaration of a mistrial. We agree. As the Court of Criminal Appeals correctly noted in its July 2, 1999, opinion in State v. Sullivan, 741 So. 2d at 1126, jeopardy attached in this case when the jury was empaneled and sworn. The Double Jeopardy Clause of the Fifth *1162 Amendment[3] to the United States Constitution protects criminal defendants, such as Sullivan, from multiple prosecutions for the same offense. Oregon v. Kennedy, 456 U.S. 667, 671, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982). The underlying policy of this constitutional principle "is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957). While the Double Jeopardy Clause affords this protection, it "does not offer a guarantee to the defendant that the State will vindicate its societal interest in the enforcement of the criminal laws in one proceeding." Kennedy, 456 U.S. at 672, 102 S. Ct. 2083. "If the law were otherwise, `the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again.'" Id. (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 93 L. Ed. 974 (1949)). Where, as here, a trial is terminated over the objection of the defendant, the State may proceed with a second trial only after showing that the initial proceeding was aborted because of a "manifest necessity." Kennedy, 456 U.S. at 672, 102 S. Ct. 2083. As the Supreme Court has noted, "[t]he `manifest necessity' standard provides sufficient protection to the defendant's interests in having his case finally decided by the jury first selected while at the same time maintaining `the public's interest in fair trials designed to end in just judgments.'" Id. (quoting Wade, 336 U.S. at 689, 69 S.Ct. 834). The trial court's ruling as to whether there was a "manifest necessity" for granting a mistrial should always be afforded great deference. Ex parte McCall, 541 So. 2d 1075, 1076 (Ala.1989). We cannot say the trial court abused its discretion in this case in concluding that no manifest necessity warranted its declaration of a mistrial after the jury had been empaneled and sworn. The United States Supreme Court addressed an analogous situation in United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971). That case involved the prosecution of a man for willfully assisting in the preparation of fraudulent tax returns. The Government's case was partially founded on the testimony of five witnesses whom the defendant had supposedly aided in the preparation of the illegal returns. After the trial began, the defense attorney suggested to the court that these witnesses should be warned of their constitutional rights against self-incrimination. The trial court agreed, and advised the first witness of his rights. Upon inquiry, the court then found that the remaining witnesses were similarly situated, so it declared a mistrial. When the case was set for a second trial, the defendant moved to dismiss the case on the ground of double jeopardy. The trial court granted the motion, and the Government appealed. The Supreme Court found that there had been no manifest necessity for the trial court's declaration of a mistrial. Jorn, 400 U.S. at 486, 91 S. Ct. 547. The Court recognized that a criminal defendant has a clear right to submit his or her case to a jury for a final adjudication with the hope that the proceedings against him or her finally will be concluded. It explained, "[w]here the judge, acting without the defendant's consent, aborts the proceeding, the defendant has been deprived of his `valued right to have his trial completed by a particular tribunal.'" Id. at 484, 91 *1163 S. Ct. 547. Addressing the question of prosecutorial preparedness, the Court said: Id. at 486, 91 S. Ct. 547. The Supreme Court addressed a second similar situation in Downum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963), where the Government proceeded to trial without ascertaining whether one of its essential witnesses had appeared in order to testify. The Government moved to dismiss the counts against the defendant that depended on that witness's testimony, for want of prosecution. When the Government endeavored to try those counts a second time, the defendant pleaded the bar of double jeopardy. The trial court overruled his plea, and he was convicted. The Supreme Court reversed his conviction, holding that no manifest necessity had warranted a dismissal of the original charge. Downum, 372 U.S. at 738, 83 S. Ct. 1033. The Court stated: Downum, 372 U.S. at 737-38, 83 S. Ct. 1033 (quoting Cornero v. United States, 48 F.2d 69, 71 (9th Cir.1931)). The record suggests that the prosecutor could not proceed without Zimlich's testimony; that was the only evidence regarding the alleged falsity of Sullivan's statements that had resulted in his perjury charge. Several other witnesses were scheduled to testify, but the prosecution felt that their testimony, by itself, was insufficient to meet its prima facie burden. At the hearing on Sullivan's motion to dismiss, the prosecutor testified that he had spoken with Zimlich's counsel three times between October 1998 (when Zimlich signed an agreement saying he would testify) and March 1, 1999 (when Sullivan's jury was empaneled and sworn).[4] During the prosecutor's second communication with Zimlich's counsel, Zimlich's counsel told the prosecution that Zimlich was vacillating on his previous commitment to testify. One week later, which was three weeks before the date for which Sullivan's trial was set, Zimlich's counsel told the prosecution that Zimlich had once again decided to testify. This affirmation was the last contact the prosecution had with Zimlich before jeopardy attached in the case against Sullivan. Given the importance of Zimlich's testimony to its case, the prosecution had a duty, for the sake of preparedness, to seek assurances from its *1164 key witness that he would testify in accordance with his agreement so that the State would know it had enough evidence to ensure a conviction. Considering the testimony heard by the trial court, we must respect the trial court's discretionary ruling that its previous declaration of a mistrial was not supported by a manifest necessity. In its brief the State cites several cases in which other courts have held that a manifest necessity for a mistrial exists where a witness becomes unexpectedly unavailable. Those cases, however, are distinguishable from the present case. We discuss two of these cases in order to clarify our decision today. In United States v. Gallagher, 743 F. Supp. 745, 748 (D.Or.1990), a Federal district court in Oregon found a manifest necessity for declaring a mistrial, where, after jeopardy had attached, the Government's key witness unexpectedly refused to testify. That case dealt with a situation where the prosecution had received no indication that its witness might decide at the last hour not to testify. Notably, the Court distinguished that case from Downum, stating that the case before it was not one in which the prosecution had gambled on whether it was prepared to present its case. 743 F. Supp. at 749. In United States v. Shaw, 829 F.2d 714, 719 (9th Cir.1986), another case relied upon by the State, the United States Court of Appeals for the Ninth Circuit held that a manifest necessity justified the trial court's declaration of a mistrial. In that case, the Government's witness exhibited inclinations before trial suggesting that he was not going to testify unless he received immunity. When the trial began, there was still no certainty as to whether the Government's witness would be granted immunity; therefore, before opening arguments, the trial court cautioned the Government against discussing any facts that could be presented only through its recalcitrant witness. The Government heeded the warning, but defense counsel referred to several statements that could be discounted only if the witness were present. Although immunity for the witness was later approved, that witness still refused to testify. Consequently, the trial court granted the Government's motion for a mistrial. The Ninth Circuit affirmed, holding that defense counsel's references to matters that would have been covered by the witness's testimony unjustly and incurably prejudiced the Government's case, and, thus, created a manifest necessity for a mistrial. Shaw, 829 F.2d at 719. The present case is more analogous to Jorn and Downum than to either of these cases or to the other similar cases argued by the State. In Jorn and Downum, inadequate Government trial preparation led to orders aborting criminal proceedings after jeopardy had attached, and in both cases the Supreme Court found no manifest necessity warranting the removal of the bar of double jeopardy. Here, we are faced with a similar set of circumstances, in which the trial judge, based on his familiarity with all the attendant factsespecially as they related to whether Zimlich would, in fact, testifybelieved that the State had failed to carry its burden of showing a "manifest necessity." This Court has stated that "an accused's valued right to have his trial completed by a particular tribunal will not be subordinated to the public's interest in fair trials designed to end in just judgments unless there is a manifest necessity [for removing the bar of double jeopardy]." Ex parte Collins, 385 So. 2d 1005, 1009 (Ala.1980). With that principle in mind, we are guided by the Supreme Court's mandate that we "resolve any doubt in favor of the liberty of the citizen, rather than exercise what would be an unlimited, uncertain, and arbitrary judicial discretion." Downum, 372 U.S. at 738, 83 S. Ct. 1033 (quotation marks omitted). After giving careful and studied consideration to the facts and the law of this case, we conclude that no manifest necessity warranted the diminution of Sullivan's right to be free from having his *1165 freedom twice threatened in the same criminal prosecution. We hold that the Court of Criminal Appeals' issuance of a writ of mandamus on behalf of the State was improvident. Thus, we grant Sullivan's petition a writ of mandamus directing the Court of Criminal Appeals to vacate its writ of mandamus. PETITION GRANTED; WRIT ISSUED. HOOPER, C.J., and HOUSTON, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., concurs specially. COOK, J., concurs in the result. JOHNSTONE, Justice (concurring specially). I concur, but with the caveat that our discussion of United States v. Gallagher, 743 F. Supp. 745 (D.Or.1990), and United States v. Shaw, 829 F.2d 714 (9th Cir. 1986), should not be interpreted as approving the holding of either of those cases. We have simply distinguished those two cases without deciding on the validity of the holdings. [1] See Arizona v. Washington, 434 U.S. 497, 505, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). [2] The State's power to appeal from an adverse ruling in a criminal case is governed by § 12-12-70(c), Ala.Code 1975 (providing that an appeal may be taken from a judgment declaring an ordinance or statute invalid); § 12-22-91, Ala.Code 1975 (providing that an appeal may be taken from a judgment holding an indictment or information unconstitutional); and by Rule 15.7, Ala. R.Crim. P. (providing that appeals may be taken from certain pre-trial orders). In the present case, the parties do not dispute that the order at issue here is not appealable. [3] In Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), the United States Supreme Court held that the Double Jeopardy Clause applied to the States through the Due Process Clause of the Fourteenth Amendment. [4] The prosecutor testified that he had had no direct contact with Zimlich during this period.

May 26, 2000

c832ca6f-dceb-47d9-aed5-24873ffc9ab6

Ex Parte Doster Constr. Co.

772 So. 2d 447

1990203

Alabama

Alabama Supreme Court

772 So. 2d 447 (2000) Ex parte DOSTER CONSTRUCTION COMPANY, INC. (In re Curtis O. Childress v. Doster Construction Company, Inc.) 1990203. Supreme Court of Alabama. May 19, 2000. *448 David M. Wilson and Jonathan L. Berryhill of Janecky Newell, P.C., Birmingham, for petitioner. Stewart G. Springer of Campbell & Springer, Birmingham, for respondent. Clifford W. Cleveland and Kelly Tipton Lee of Cleveland & Colley, P.C., Prattville, for amicus curiae Alabama Trial Lawyers Ass'n in support of the respondent. HOUSTON, Justice. Doster Construction Company, Inc. ("Doster"), the defendant in an action currently pending in the Jefferson Circuit Court, petitions for a writ of mandamus directing the trial court to grant its motion *449 to compel the deposition of the plaintiff, Curtis O. Childress. We grant the petition in part and issue the writ. Childress filed the action below to collect workers' compensation benefits from Doster, his employer, for an injury he claimed to have received during the course of his employment. Doster contends in the trial court that it is not liable for any medical or compensatory benefits because, it says, the disabling injuries Childress alleges were not the natural and probable consequence of the original compensable injury. In preparing its case for trial, Doster notified Childress that it wished to take his deposition at the offices of Doster's attorneys. Childress refused to sit for the deposition; he claimed that he was entitled to know if a surveillance videotape of him existed and, if it did, that he was entitled to review it before sitting for the deposition. Doster moved to compel Childress to sit for the deposition; Doster argued that it was entitled to have its motion granted without disclosing whether a videotape existed or, if one did exist, without disclosing the tape itself. The trial court denied that motion. Doster petitioned the Court of Civil Appeals for a writ of mandamus compelling the trial court to grant its motion. The Court of Civil Appeals denied the petition, and Doster filed a similar petition with this Court. The issue is whether the trial court abused its discretion in ruling that Childress does not have to appear for deposition until Doster both discloses whether a videotape of Childress exists and, if it does, permits Childress to view the videotape. We recognize, initially, that no evidence before us indicates that a surveillance videotape exists. However, we also note that the vast majority of Doster's argument in support of its motion to compel the deposition was directed against the proposition that Childress was entitled to view a videotape before he was deposed and that Childress refused to be deposed until he was told whether a videotape existed and, if it did, then until he had viewed the tape. With the case in this posture, and because the trial court failed to specify in a written order why it denied the motion to compel, the only logical conclusion we can draw is that the trial court based its order on Doster's refusal to disclose both whether such a videotape exists and, if one does, its refusal to disclose the videotape itself. We first address the question whether a surveillance videotape of an employee/plaintiff held by the employer/defendant is discoverable in a workers' compensation case. The discoverability of evidence in Alabama is governed by Rule 26, Ala. R. Civ. P. That rule states that parties are entitled to discovery regarding any matter that is relevant to the subject matter of the case, as long as it is not privileged. Rule 26(b)(1). Doster argues that a videotape would be protected under the attorney-work-product privilege. In Alabama, the work-product privilege protects against being required to reveal an attorney's mental impressions, conclusions, opinions, and legal theories. See Rule 26(b)(3); Ex parte Water Works & Sewer Bd. of the City of Birmingham, 723 So. 2d 41 (Ala.1998); Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947). A videotape showing the employee would clearly not fall within this aspect of the privilege. However, Rule 26(b)(3) extends the work-product privilege to materials prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative, including the other party's attorney, consultant, surety, indemnitor, insurer, or agent, unless the party seeking disclosure can show a substantial need for the materials or can show he would incur an undue hardship in obtaining the substantial equivalent of the materials by other means. If it is determined that the employer prepared a surveillance videotape in anticipation of litigation or for trial, then the question becomes whether the employee has a substantial need for the videotape and cannot, without *450 undue hardship, obtain the information he seeks from some other source. Other states have recognized a concern that the production of a surveillance videotape before the employee/plaintiff is deposed would greatly impair the truth-finding function of cross-examination. DiMichel v. South Buffalo Ry., 80 N.Y.2d 184, 197, 590 N.Y.S.2d 1, 604 N.E.2d 63, 68 (1992). "[A surveillance] videotape picturing the plaintiff engaged in physical activity has the potential to reveal inconsistencies between the plaintiff's claimed injuries and resulting limitations and the plaintiffs actual abilities." Wolford v. JoEllen Smith Psychiatric Hosp., 693 So. 2d 1164, 1167 (La.1997). The New York Court of Appeals has stated, "We believe that [the danger posed by an employee's ability to tailor his testimony to explain activities depicted in a videotape] can be largely eliminated by providing that surveillance films should be turned over only after a plaintiff has been deposed." DiMichel, 80 N.Y.2d at 197, 590 N.Y.S.2d 1, 604 N.E.2d at 68. Likewise, the Louisiana Supreme Court held: Wolford, 693 So. 2d at 1167. Alabama workers' compensation law is a creature of the Legislature, and the Legislature provided the courts with a statement of policy[1] in its 1992 amendments to the Alabama Workers' Compensation Act: Act No. 92-537, § 1, Ala. Acts 1992. (Emphasis added.) The Legislature, therefore, intended with the enactment of this legislation to provide employees and employers with a fair and affordable workers' compensation procedure. The primary way to keep the costs of workers' compensation affordable is to reduce the number of fraudulent claims filed by employees. By allowing the employer to protect a surveillance videotape, the trial court will be helping to promote truthful answers by an employee at his deposition. See DiMichel and Wolford, supra; Hikel v. Abousy, 41 F.R.D. 152 (D.Md.1966); Dodson v. Persell, 390 So. 2d 704 (Fla. 1980). Alternatively, Wolford, 693 So. 2d at 1167. Truth is the common thread used to achieve the twin goals set by the Legislaturethat the Alabama workers' compensation scheme be fair and that it be affordable. Furthermore, truth is the *451 cornerstone of our judicial system, and courts always strive to find it. In Estes v. Texas, 381 U.S. 532, 540, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965), the Supreme Court of the United States noted: Later, in Briscoe v. LaHue, 460 U.S. 325, 335, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983), the Court, discussing Justice White's concurring opinion in Imbler v. Pachtman, 424 U.S. 409, 439, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976), acknowledged that "[i]t is precisely the function of a judicial proceeding to determine where the truth lies." Courts have developed procedures to separate truth from falsitythe oath, the perjury penalty, public proceedings, the sequestration of witnesses, and prior notice to an opponent of the evidence a party intends to use. See Ex parte Frazier, 562 So. 2d 560, 566-67 (Ala.1989). We see no apparent advantage to requiring the disclosure of a videotape before an employee is deposed, except for the advantage that would inure to the employee if he intended to lie or to pursue a fraudulent claim. Therefore, the quest for the truth should be furthered through protecting the videotape before the employee is deposed. Of course, the employee also has a right to question the truthfulness of the images on the videotape. Therefore, once a party decides to use the videotape as evidence, it is no longer protected by the work-product privilege. Dodson, 390 So. 2d at 707. At that point, the employee is entitled to test the truth and validity of the images on the videotape. Because videotapes are particularly vulnerable to manipulation through various editing techniques, the videotape, if requested, should be produced by the employer within a reasonable time before trial so as to afford the employee the opportunity to test its validity and authenticity. We next address the issue whether an employer/defendant that holds a surveillance videotape must acknowledge that fact before the employee is deposed. The fact that such a videotape exists would be discoverable. Rule 26(b)(3) extends the work-product privilege to "documents and tangible things otherwise discoverable under subdivision (b)(1)." The fact of the existence of a videotape is not a "document" or "tangible thing," within the meaning of the Rule. Therefore, under Rule 26(b)(1), the fact of the existence of a videotape is discoverable "[u]nless otherwise limited by order of the court in accordance with [the Rules of Civil Procedure]." Under Rule 26(d) the trial court has the discretion to manage the sequence in which the various discovery methods may be used. Therefore, the trial court may decide not to require the employer to disclose whether a videotape exists, if in the trial court's judgment nondisclosure would promote truthfulness by the employee in his deposition or in his responses to other discovery requests. The trial court denied Doster's motion to compel Childress to sit for a deposition. In doing so, it held that Childress did not have to testify until he knew whether Doster had a videotape and, if it did, until he had had a chance to view the videotape. The trial court acted within its discretion in ordering Doster to disclose whether it has a surveillance videotape of Childress. However, in light of our discussion above, we conclude that the trial court abused its discretion in holding that Doster, if it had a videotape, had to produce that videotape before Childress could be compelled to testify by deposition. Assuming the existence of a surveillance videotape and assuming that the videotape was prepared in anticipation of litigation or for trial, such a holding must be predicated on a showing of substantial need and undue *452 hardship as set out in Rule 26(b)(3).[2] Before being deposed, an employee would ordinarily have difficulty showing that he was ignorant of what activities on his part could have been observed; therefore, an employee would have difficulty demonstrating that he had a substantial need to see a videotape and would have difficulty showing that he could not obtain the substantial equivalent of such information without undue hardship. In any event, Childress made no attempt to satisfy the requirements of Rule 26(b)(3). Under these circumstances, Doster has shown a clear right to an order directing Childress to appear for deposition without Doster's first having disclosed to him the surveillance videotape, if it has such a tape. Ex parte Price, 698 So. 2d 112 (Ala.1997). PETITION GRANTED IN PART; WRIT ISSUED. HOOPER, C.J., and MADDOX, SEE, and BROWN, JJ., concur. COOK, LYONS, JOHNSTONE, and ENGLAND, JJ., dissent. COOK, Justice (dissenting). The majority issues a writ of mandamus in this workers' compensation case directing the trial judge to vacate an order denying a discovery motion of the defendant Doster Construction Company ("Doster"). Specifically, Doster moved to compel the plaintiff Curtis Childress to submit to a deposition in Childress's action against Doster seeking workers' compensation benefits. I respectfully dissent. The facts relevant to this petitionas far as they are revealedare simple, but most peculiar. Childress seeks workers' compensation benefits. Doster, his employer, denies that he is entitled to them and wants to depose him. Childress wants to know whether Doster has any video recordings of him that were made "subsequent to the accident made the basis of this lawsuit." Doster refuses to disclose whether such recordings exist. Childress refuses to be deposed by Doster until Doster discloses whether it has video recordings and produces them if it does. The trial court has denied a motion by Doster to compel Childress to appear for deposition without first being told whether the defendant has videotapes and, if it does have videotapes, without seeing them. The relief sought by Doster is remarkable. Specifically, it "requests this Court to issue a Writ of Mandamus ordering the trial court to mandate [the workers' compensation plaintiff's] attendance at his deposition without [Doster's] having to disclose the existence of video or surveillance or any other recording medium and without have to produce that material, should it exist." Petition for Writ of Mandamus, at 18 (emphasis added). It is well established that Alabama trial courts have "broad discretion to control the discovery process and to prevent its abuse by either party." Ex parte Water Works & Sewer Bd. of the City of Birmingham, 723 So. 2d 41, 44 (Ala.1998). Moreover, the writ of mandamus will issue only to correct an abuse of discretion. Three Coast Carriers, Inc. v. Ford Motor Credit Co., 607 So. 2d 169 (Ala.1992). In seeking a writ of mandamus, the petitioner is in an untenable position. This is so, because it bases its argument for mandamus relief on the ground of attorney work product. Indeed, it cites a number of cases for the proposition that video recordings produced under certain circumstances may constitute attorney work product. Concomitantly, however, it refuses to concede that a video recording exists. Axiomatically, because it refuses to concede the existence of a recording, it presents no facts demonstrating the existence of any privilege. Because it presents no facts, all the caselaw on which it *453 relies for support is irrelevant. Thus, Doster refuses to admit that a video recording exists, but, nevertheless, asserts that, if it did exist, it would be attorney work product and the cases it cites would be on point. In an attempt to address the incontrovertible position presented by these facts, the majority states: 772 So. 2d at 451. This characterization of the trial court's action is not supportable. The trial court's order states in toto: "The Defendant Doster Construction Company, Inc.'s Motion to Compel Deposition is hereby OVERRULED." Petition for Writ of Mandamus, at Tab 11. Thus, I cannot say, as the majority does, that the trial court held "that Doster, if it had a videotape, had to produce that videotape before Childress could be compelled to testify by deposition." The untenability of this position is succinctly expressed by the respondent Childress. For example, he states: (1) The trial judge was never "provided any information whatsoever that videotaped surveillance of Curtis Childress existed," Brief of Respondent, at 7; (2) "How can [the trial judge] presume or assume `if' videotaped surveillance exists ... that such supposed videotaped surveillance was prepared in anticipation of litigation or is work product privileged?" Id. at 8; and (3) "This simply assumes privilege with no facts." Id. at 11. This Court cannot reverse an order of the trial court for an abuse of discretion when the facts are not before us. In this case, however, the majority does exactly that. It holds that the trial court abused its discretion, even though the defendant refuses to concede the existence of facts that would demonstrate such an abuse. I would not interfere with the trial court's handling of discovery matters under these circumstances. Therefore, I respectfully dissent. LYONS, Justice (dissenting). Doster's responses to Childress's efforts to discover the videotapes consist of objections that clearly admit the existence of one or more surveillance videotapes. The trial court's order merely denies a motion seeking only to withhold disclosure of the existence of the tapes until after the deposition. The trial court did not abuse its discretion in denying Doster's motion to take a deposition without first disclosing a circumstance that Doster had already acknowledged to exist. Childress has not moved to compel production of any videotapes or to compel answers to his interrogatories seeking information about surveillance videotapes. Because Doster is under no present duty to produce such material, it is premature to consider the timing of any production related to Childress's deposition. If the matter were before us on Childress's motion to quash the notice of his deposition or, in the alternative, for a protective order postponing the deposition until any videotapes are produced, or if it were here on Doster's motion for an order compelling the deposition before further proceedings on the discoverability of any videotapes, the matter would be in an entirely different procedural posture. Because this matter is not here in one of those postures, I must dissent from the order granting the petition for the writ. *454 JOHNSTONE, Justice (dissenting). The petition for writ of mandamus is procedurally groundless. The petitioner seeks a writ of mandamus enforcing the petitioner's claim of an attorney work product privilege on a surveillance videotape. The petitioner, however, refused to disclose to the trial judge or opposing counsel whether or not any such videotape exists. Rather, the petitioner contended before the trial court and contends before this Court that the petitioner should not be required to disclose whether or not the videotape exists. A party claiming a privilege must initially make a prima facie showing that the privilege exists. Rule 26(b)(3), Ala. R. Civ. P., and Ex parte Garrick, 642 So. 2d 951 (Ala.1994). See also Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655 (S.D.Ind.1991). The petitioner's refusal to disclose whether or not the surveillance videotape exists logically and necessarily forecloses any contention by the petitioner that it prepared a surveillance videotape in anticipation of litigation. A writ of mandamus will not issue unless the petition seeking it establishes, among other essential elements, that the petitioner has a "clear legal right" to the relief sought. Ex parte McNaughton, 728 So. 2d 592 (Ala.1998). Because the petitioner has not made even a prima facie showing that it prepared a surveillance videotape in anticipation of litigation, and therefore that a privilege protects such surveillance videotape from disclosure, the petition does not establish a clear legal right in the petitioner to the relief sought. This Court cannot simply assume a prima facie showing of the privilege and thus assume a clear legal right in the petitioner to a writ of mandamus enforcing such a privilege. ENGLAND, Justice (dissenting). The majority opinion holds that the trial court abused its discretion in holding that Doster had to produce a videotape before Childress could be compelled to testify by deposition. I respectfully dissent. The majority opinion concludes that Childress failed to make a showing of substantial need and undue hardship as set out in Rule 26(b)(3), Ala. R. Civ. P. That rule provides that a party may obtain discovery of certain documents and tangible things only after showing a substantial need for the materials and an inability to obtain the substantial equivalent without undue hardship. This showing, however, is not required when the party is attempting to obtain "a statement concerning the action or its subject matter previously made by that party." Rule 26(b)(3). Rule 26(b)(3) includes "stenographic, mechanical, electrical, or other recording[s]" in its definition of "statement" as that term is used in subdivision (b). Thus, under Rule 26(b)(3), Childress would not need to make a showing of substantial need and undue hardship to examine any statements by Childress captured by the audio portion of the videotape; but under the discovery rule which the majority now creates, Childress could not examine the video portion. Doster has the burden of showing that the trial court abused its discretion. I cannot say that the trial court abused its discretion, because it appears to me that Rule 26(b)(3) would allow Childress to obtain a copy of the videotape without regard to whether he was about to be deposed. It was within the trial judge's discretion to order that the videotape be produced to the plaintiff before the plaintiff was deposed because the details of the discovery process are left to the discretion of the trial court. See Van Buren v. Dendy, 440 So. 2d 1012 (Ala.1983). The majority would treat an injured worker differently from the way any other class of litigants is treated. Only an injured worker would be required to submit to a deposition without first having an opportunity to view that which will in all likelihood be discussed during the deposition, i.e., the activities of the injured worker that were videotaped by the employer. The Alabama Rules of Civil Procedure *455 permit very broad discovery, but Rule 26(c), recognizing that discovery is not unlimited, "accordingly vests the trial court with broad discretionary power to control the use of the [discovery] process," and "[a]s a result, [a] writ [of mandamus] will not issue unless the right sought to be enforced is clear and certain, with no reasonable basis for controversy about the right to relief." Ex parte Mack, 461 So. 2d 799 (Ala.1984); see also Ex parte Dorsey Trailers, Inc., 397 So. 2d 98 (Ala.1981); Ex parte Knox Kershaw, Inc., 562 So. 2d 250 (Ala.1990); Campbell v. Regal Typewriter Co., 341 So. 2d 120 (Ala.1976); Ex parte Georgia Casualty & Surety Co., 531 So. 2d 838, 841 (Ala.1988); and Plitt v. Griggs, 585 So. 2d 1317 (Ala.1991). "It is well settled that discovery rules should be liberally construed in order to provide the parties with information relevant to the litigation." Ex parte Knox Kershaw, Inc., 562 So. 2d at 253. The majority's opinion implies that an injured worker could rarely demonstrate a substantial need to see a videotape before being deposed because, the majority says, "an employee would ordinarily have difficulty showing that he was ignorant of what activities on his part could have been observed." 772 So. 2d at 452. In addition, the majority's holding would require the trial court to force the injured worker to submit to deposition without the employer's showing any particularized justification for not allowing the injured worker to see the videotape before his deposition. There may be circumstances where a showing could be made that would justify the trial court's compelling an injured worker to appear for deposition without first viewing the videotape, such as the employer's having information from medical records or healthcare providers indicating that the injured worker has a history of overstating his injuries or faking injury, or testimony or statements from employees or supervisors that bring the injured worker's credibility into question. In any event, the determination of whether an employee should be allowed to review a surveillance videotape before being deposed should be left to the sound discretion of the trial court. We must keep in mind that "`the rules for discovery are designed to eliminate, as far as possible, concealment and surprise in the trial of lawsuits to the end that judgments be rested upon the real merits of cases and not upon the skill and maneuvering of counsel.'" Ex parte Dorsey Trailers, Inc., 397 So. 2d 98, 104 (Ala.1981) (quoting 23 Am.Jur.2d, Depositions and Discovery, § 155 (1965)). The majority departs from these rules for discovery. [1] "[T]he Legislature prescribes the State's policy; the courts do not.... [The courts'] province is only to give it effect as made." Almon v. Morgan County, 245 Ala. 241, 245, 16 So. 2d 511, 514 (1944). [2] Discovery documents in the record indicate that one of Doster's attorneys and a representative of Doster indicated to the trial court that any videotape in Doster's possession would have been prepared in anticipation of litigation or for trial.

May 19, 2000

ad7309a0-9482-48f4-a142-577b3504f3f8

Ex Parte Sibley

775 So. 2d 246

1980405

Alabama

Alabama Supreme Court

775 So. 2d 246 (2000) Ex parte George E. SIBLEY, Jr. (Re George E. Sibley, Jr. v. State.) 1980405. Supreme Court of Alabama. May 12, 2000. Thomas M. Goggans, Montgomery, for appellant. Bill Pryor, atty. gen., and George A. Martin, Jr., asst. atty. gen., for appellee. ENGLAND, Justice. A Lee County jury convicted George E. Sibley, Jr., of capital murder for the killing of Roger Motley. The murder was made capital because Motley was a police officer (with the Opelika Police Department) and was on duty at the time of the murder. See Ala.Code 1975, § 13A-5-40(a)(5). The jury unanimously recommended that he be sentenced to death. After conducting a sentencing hearing, the court accepted the jury's recommendation and imposed a sentence of death. Before the appeals process began, Sibley indicated a desire to proceed without an attorney. The trial court informed Sibley of the appellate process and the advantages of proceeding with counsel. The court stressed to him the disadvantages he would have representing himself, including the difficulties of meeting time standards while incarcerated. The court also informed Sibley that he could waive counsel and later withdraw that waiver and request an attorney to represent him. Sibley continued to state adamantly that he wanted to present his own case. The trial court, having twice explained to Sibley the perils he would face in representing himself, allowed him to proceed pro se. *247 Sibley indicated in many pro se documents filed with the Court of Criminal Appeals that he did not intend to file a brief. That court nevertheless appointed an attorney to help Sibley prepare a brief. Sibley again rejected the appointment, adamantly stating that he wanted to present his own case and did not want an attorney appointed for him. The court gave Sibley one last chance to file a brief; however, he refused to do so. The state asked the Court of Criminal Appeals to remand the case for the trial court to determine whether Sibley's decision not to pursue an appeal had been made knowingly, intelligently, and voluntarily. The Court of Criminal Appeals agreed to do so and, on March 8, 1996, remanded the case for the trial court to determine whether Sibley "understood the consequences" of acting pro se. Sibley v. State, 775 So. 2d 235, 238 (Ala.Crim.App. 1996). In its March 21, 1997, opinion on return to remand, the Court of Criminal Appeals described the remand as having been made "[o]ut of an abundance of caution." 775 So. 2d at 241. On remand, the trial court again questioned Sibley as to whether he understood the consequences of his actions. That court then made the following findings, in pertinent part: (Court's Record of Remand pp. 12-13.) The Court of Criminal Appeals, on March 21, 1997, satisfied that Sibley's waiver was a knowing and intelligent one, and after reviewing the case for plain error, affirmed the conviction and the sentence of death. 775 So. 2d at 242 (opinion on return to remand). Although Sibley did not petition for a writ of certiorari, this Court issued the writ ex mero motu. We appointed counsel for Sibley, and counsel filed a brief and appeared for oral argument. We have carefully reviewed the record, as we must under Rule 39(k), Ala. R.App. P., and Ala. Code 1975, § 13A-5-53(a). We have also carefully read and considered the briefs and the arguments of counsel. We have found no error, plain or otherwise. Nothing in the record indicates that the sentence *248 of death was imposed as a result of passion, prejudice, or any other arbitrary factor. This Court has also independently weighed the aggravating circumstances and the mitigating circumstances, in accordance with Ala.Code 1975, § 13A-5-53(b), and we conclude that death is the proper sentence. The trial court found the existence of two aggravating circumstances: (1) that Sibley knowingly created a great risk of death to many persons; and (2) that the capital offense was committed for the purpose of avoiding or preventing a lawful arrest. See Ala.Code 1975, § 13A-5-49(3) and (5). Finally, as Ala.Code 1975, § 13A-5-53(b), requires, we have considered whether Sibley's death sentence was disproportionate or excessive when compared to the sentences imposed in similar cases. It was not. Alabama courts have frequently imposed the death sentence for the murder of a police officer or a correctional officer. See Ex parte Madison, 718 So. 2d 104 (Ala.), cert. denied, 525 U.S. 1006, 119 S. Ct. 521, 142 L. Ed. 2d 432 (1998) (murder of a police officer); Harrell v. State, 470 So. 2d 1303 (Ala.Crim.App.1984), aff'd, 470 So. 2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S. Ct. 269, 88 L. Ed. 2d 276 (1985) (murder of a police officer); Carr v. State, 640 So. 2d 1064 (Ala.Crim.App.1994) (murder of a correctional officer; there was no certiorari review, because of the defendant's deathsee 640 So. 2d at 1074.). We affirm the judgment of the Court of Criminal Appeals. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, and JOHNSTONE, JJ., concur. BROWN, J., recuses herself.[*] [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

May 12, 2000

bdaf47c1-d85d-4dda-b821-94db2ab46d4e

Ex Parte State Ex Rel. OEG

770 So. 2d 1087

1982109

Alabama

Alabama Supreme Court

770 So. 2d 1087 (2000) Ex parte STATE of Alabama ex rel. O.E.G. (Re State of Alabama ex rel. O.E.G. v. H.W.) 1982109. Supreme Court of Alabama. May 5, 2000. J. Coleman Campbell and Lois Brasfield, asst. attys. gen., Department of Human Resources, for petitioner. Claude D. Boone, Mobile, for respondent. PER CURIAM. This mandamus petition by the State, acting on the relation of O.E.G., presents only one legal question: Whether the Mobile County Juvenile Court, in a case in which the defendant had filed a notice of appeal to the circuit court, from a final judgment, had jurisdiction to "reconsider" or rehear its ruling that was the subject of the notice of appeal. The State, claiming that the juvenile court had lost jurisdiction over the case once the appeal was taken from a final adjudication of paternity, petitioned the Court of Civil Appeals for a writ of mandamus directing the juvenile court to set aside its order directing that the case be retried de novo in the juvenile court. The Court of Civil Appeals denied the mandamus petition. The State then petitioned this Court to issue a writ of mandamus directing Judge George A. Brown, of the Mobile Juvenile Court, to withdraw that order, dated March 25, 1999, wherein he had treated the notice of appeal in case no. CS-98-5841 as a "motion for reconsideration," had granted the motion, and had ordered that the case be tried de novo in the juvenile court.[1] Based on the record *1088 before us we conclude that the State has clearly shown that it is entitled to the relief it seeks; therefore, we grant the petition and issue the writ. On September 24, 1998, the State, on the relation of O.E.G., filed a complaint in the Juvenile Court of Mobile County, Department of Investigation and Recovery, against H.W. The complaint alleged that O.E.G. had named H.W. as the father of her child, D.T.G. The complaint asked that H.W. be adjudicated to be the father of D.T.G. and that he be ordered to pay a reasonable sum toward D.T.G.'s support and maintenance. DNA tests conducted by order of the court indicated a 99.9998% probability that H.W. was the biological father of D.T.G. On February 5, 1999, the case was presented to a referee, pursuant to § 12-15-6, Ala.Code 1975. A court reporter recorded the testimony of the witnesses and all that transpired at the hearing before the referee. On February 8, 1999, the referee entered an order finding that H.W. was the father of D.T.G. The order required H.W. to pay monthly child support, to pay retroactive support, and to maintain medical insurance on D.T.G. The referee's order was confirmed by Judge Brown. (See paragraph 7 of Judge Brown's response, quoted at note 1.) On February 19, 1999, H.W. filed in the juvenile court a notice of appeal to the Circuit Court of Mobile County for a trial de novo, but on March 25, 1999, Judge Brown entered an order stating that he was treating the defendant's notice of appeal as a motion for "reconsideration." The order purported to grant that motion and to set the case for a hearing on August 12, 1999, in the juvenile court. On April 1, 1999, the State moved to set aside the March 25, 1999, order. The State argued: (1) If the notice of appeal was to be treated as a motion for a "reconsideration" or rehearing, then it should have had an opportunity to respond to that "motion"; (2) H.W.'s filing was clearly a notice of appeal and not a postjudgment motion; and (3) the trial court was without jurisdiction to issue the March 25, 1999, order because an appeal had already been taken to the circuit court. Judge Brown denied the State's motion on May 21, 1999. On July 2, 1999, the State petitioned the Court of Civil Appeals for a writ of mandamus directing Judge Brown to set aside his order of March 25, 1999. In response to that petition, Judge Brown stated that he was actually treating H.W.'s notice of appeal as a request for review of the referee's decision. Judge Brown further stated: Finally, Judge Brown asserted that § 12-15-6(d), Ala.Code 1975, allows a juvenile court judge to order a rehearing in a case "at any time," and that that was what he did when he entered his March 25, 1999, order. The Court of Civil Appeals denied the State's mandamus petition on August 17, 1999, without an opinion. Ex parte State (Re: State ex rel. O.E.G. v. H.W.) (No. 2981099), ___ So.2d ___ (Ala.Civ.App. 1999) (table). The State thereafter petitioned this Court for a writ of mandamus, asking for the same relief it had sought from the Court of Civil Appeals. The writ of mandamus, of course, is an extraordinary remedy that will issue only in situations where other relief is unavailable or is inadequate. See Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894 (Ala.1998). The dispositive issue in regard to this petition is whether Judge Brown had jurisdiction to enter the March 25, 1999, order, the effect of which would be to set aside the order entered by the referee on February 8, 1999, an order that had been confirmed by Judge Brown, apparently on February 8, 1999. We conclude that Judge Brown did not have that jurisdiction. He lost jurisdiction of the case because the referee's order, when it was confirmed, had become a final judgment. See Blume v. State, 678 So. 2d 1122, 1124 (Ala.Civ.App.1996); and § 12-15-6(e), Ala.Code 1975. Although H.W. was entitled to file a postjudgment motion, such as a motion for a rehearing pursuant to § 12-15-6(d), he did not do so. He chose instead to appeal to the circuit court, filing what is clearly a notice of appeal to the Circuit Court of Mobile County, on February 19, 1999.[2] Jurisdiction over the case was, therefore, transferred to the circuit court. Judge Brown asserts that § 12-15-6(d) allows him to order a rehearing in this case "at any time." We disagree with that broad statement of the law. We conclude that a trial judge cannot regain jurisdiction of a case by treating a notice of appeal as a request for a rehearing. In Foster v. Greer & Sons, Inc., 446 So. 2d 605, 608 (Ala.1984), this Court explained: This statement from Foster is an application of the general rule that jurisdiction of a case can be in only one court at a time. Id. (citing Walker v. Alabama Public Service Comm'n, 292 Ala. 548, 297 So. 2d 370 (1974)). *1090 Although § 12-15-6(d) states that "[a] rehearing before the judge may be ordered by the judge at any time," implicit in that grant of authority is the legal concept that the judge must still have jurisdiction over the case to be able to order a rehearing. Because jurisdiction over this case was transferred to the circuit court when H.W. filed his notice of appeal, Judge Brown was without jurisdiction to enter the March 25, 1999, order. Accordingly, that order was a nullity. Because Judge Brown was without jurisdiction to enter the March 25, 1999, order, it was error for him to deny the State's motion to set aside that order. Accordingly, we issue the writ of mandamus. Judge Brown is directed to vacate the order setting this case for a trial de novo in the Juvenile Court of Mobile County. Judge Brown is also directed to allow H.W.'s appeal, pursuant to Rule 28(B), Ala. R. Juv. P., to proceed in the Circuit Court of Mobile County. PETITION GRANTED; WRIT ISSUED. HOOPER, C.J., and MADDOX, COOK, LYONS, and JOHNSTONE, JJ., concur. [1] Judge Brown filed in this Court his "Response to Petition for Writ of Mandamus," in which he avers, among other things, the following: "7. Historically, in the 13th Judicial Circuit, the Department of Investigation and Recovery, a Division of the Circuit Court, has employed part-time referees to hear all proceedings, pursuant to Section 12-15-6 of the Code of Alabama, in paternity cases. Said orders were ratified by the presiding Judge of the Circuit, and appeals were taken to the Circuit Court pursuant to Section 26-17-10 of the Code of Alabama. "8. Since the creation of the position currently held by the respondent [i.e., Judge Brown], who took office on January 19, 1999, this position has been assigned to the Juvenile Court and among other duties is the oversight of the Investigation and Recovery Division of the Court. "9. The policy which has been put into place has been to remand all appeals from Circuit Court to the Juvenile Judge, Respondent, for trial de novo on all cases which were pending as of January 19, 1999, as well as cases appealed subsequent thereto. The purpose of said policy is to allow a single Judge to conduct said hearings more quickly, rather than have cases assigned to any one of fourteen Circuit Judges, on already crowded dockets. "10. Pursuant to Section 26-17-20(b) and the Alabama Rules of Juvenile Procedure, Rule 28, and Section 12-15-6 of the Code of Alabama, the trial before the undersigned respondent will be a trial de novo, with an adequate record so that appeal therefrom may be taken to the Court of Civil Appeals." [2] The document filed by H.W. on February 19, 1999, entitled "Notice of Appeal," read: "COMES NOW the Defendant and gives this as his Notice of Appeal that the findings and order of the referee of this Court dated the 8th day of February, 1999, to the Circuit Court of Mobile County for a Trial De Novo before the Honorable Judges of the Circuit Court of Mobile County. "In connection therewith your Defendant moves this Court for an Order determining the appropriate amount of a Supersedeas Bond in connection with the stay of the Order of the Referee entered on the 6th [sic] day of February, 1999."

May 5, 2000

a0e7e519-00b1-47c1-a0bc-c37de355516e

Carrell v. Masonite Corp.

775 So. 2d 121

1981292

Alabama

Alabama Supreme Court

775 So. 2d 121 (2000) Randall L. CARRELL and Kellie B. Carrell v. MASONITE CORPORATION and International Paper Company. 1981292. Supreme Court of Alabama. March 10, 2000. Rehearing Application Overruled May 12, 2000. *122 James G. Curenton, Jr., Fairhope, for appellants. C.C. Torbert, Jr., of Maynard, Cooper & Gale, P.C., Montgomery; and Sandy G. Robinson of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Mobile, for appellees. HOUSTON, Justice. The plaintiffs, Randall Carrell and Kellie Carrell, appeal from a summary judgment entered by the Baldwin County Circuit Court in favor of the defendants Masonite Corporation and International Paper Company (together hereinafter referred to as "Masonite"). We affirm in part, reverse in part, and remand. The Carrells chose to opt out of a class action filed in 1994, Naef v. Masonite Corp., CV-94-4033, Baldwin Cir. Ct., and to pursue their claim individually. After the Carrells opted out, the jury in Naef returned findings of fact in favor of the class members against Masonite on four interrogatories. Masonite then settled the class action. The Carrells filed this action in Baldwin County. On August 10, 1998, Masonite moved for a summary judgment. The motion was set for oral argument on five subsequent occasions, but, from the record and the briefs, it appears that all but one of these continuances were granted because of a pending mediation order by the trial court. On February 19, 1999, after the completion of mediation, the Carrells filed a motion for a continuance of the summary-judgment hearing, asking that they be allowed to finish their discovery. This motion was supported by an affidavit, as required by Ala. R. Civ. P. 56(f), setting out the reasons for needing more time. The trial court denied the Rule 56(f) motion, heard oral arguments, and then granted Masonite's motion for summary judgment. The threshold issue that must be considered on appeal is whether the trial court erred by denying the Carrells' motion for a continuance pursuant to Rule 56(f). The record indicates that discovery was delayed during mediation and that discovery was delayed while the Carrells' attorney recovered from an automobile accident. The Carrells' attorney asked for more time to depose corporate officers of Masonite. Based on the record and the briefs, we can conclude only that the trial court abused *123 its discretion as to two causes of action in the Carrells' complaint by not allowing the Carrells to complete their discovery before entering the summary judgment. See, e.g., Parr v. Goodyear Tire & Rubber Co., 641 So. 2d 769 (Ala.1994). However, there are some causes of action as to which the trial court's judgment must be affirmed, because the corporate officers of Masonite and the witnesses listed in the Rule 56(f) motion cannot supply substantial evidence of missing elements in these causes of action. We must affirm the trial court's judgment if we find any reason to do so while adhering to our standards of review. Portions of the Carrells' depositions were submitted in support of, and in opposition to, the summary-judgment motion. The record and the exhibits, viewed in the light most favorable to the Carrells, See, Carroll v. Hammett, 744 So. 2d 906 (Ala.1999), indicate the following facts. In 1993, Randall and Kellie Carrell purchased from Jerry Lowe and Donna Lowe, defendants not involved in this appeal, a house that had been built in 1987. The house was sided with "Laurel Colorlok," a siding product manufactured by Masonite. Before the Carrells purchased the house, Mr. Carrell was somewhat familiar with Laurel Colorlok because he had worked in the construction industry and had seen Masonite's advertising. In 1995, the Carrells discovered that their Laurel Colorlok siding had been rotting and that it had to be replaced. The Carrells contacted Masonite, which, under an express warranty, offered to pay $2,967.84 to replace the siding. The Carrells, however, refused this offer and contended that the cost to replace the damaged siding and thus to fulfill the warranty was $10,405. The Carrells allege that, once discovery is completed, the record will indicate that Masonite had known for decades that certain Masonite products, including Laurel Colorlok, were defective; that Masonite had carried out a plan of deception designed to maximize revenues and to minimize losses associated with its defective products; and that Masonite had created a scheme that shifted as much blame as possible away from its defective products. However, the testimony of the Carrells negates the existence of at least one element of each of 13 of their causes of action; thus, the summary judgment must be affirmed as to the 13 counts in which those causes of action were stated. The Carrells' Counts 1, 3, and 4 allege that Masonite made intentional, willful, and reckless fraudulent misrepresentations, both directly and indirectly, through its national advertising campaign and that the Carrells relied upon these representations to their detriment. The only evidence suggesting that the Carrells relied upon Masonite advertising is a single statement in Mr. Carrell's deposition: "I was under the influence that [the Colorlok siding] was the best [Masonite] had." This testimony is not substantial evidence indicating that the Carrells relied on the advertising. Without substantial evidence of reliance, there can be no recovery for fraud. Grant v. Winstead, 476 So. 2d 36 (Ala.1985). The trial court properly entered the summary judgment as to Counts 1, 3, and 4. The Carrells' Count 5 alleges that Masonite's siding did not meet their reasonable expectations. However, as a matter of law, this count does not state a cause of action. As we discussed in Dodd v. Nelda Stephenson Chevrolet, Inc., 626 So. 2d 1288 (Ala.1993), the reasonable-expectations doctrine assists plaintiffs in proving fraud when the plaintiff purchased a supposedly new product and the product was in fact not new: 626 So. 2d at 1291. See, e.g., Boulevard Chrysler-Plymouth, Inc. v. Richardson, 374 So. 2d 857 (Ala.1979). The Carrells did not purchase a new product when they purchased their used home. Therefore, as a matter of law, the reasonable-expectations doctrine is not applicable. The trial court properly entered the summary judgment on Count 5. The Carrells' Counts 6, 7, and 8 allege that Masonite defrauded them, both intentionally and recklessly, and suppressed material facts, after the Carrells had notified Masonite of the defect in its product. To recover on these claims, the Carrells must prove that they relied upon Masonite's false representations or upon the perceived nonexistence of the facts suppressed, and that they did so to their detriment. Quite the contrary, the record indicates clearly that the Carrells never believed the alleged false representations and that they did not rely on a perceived nonexistence of any suppressed facts. In fact, the Carrells turned down an offer to settle under the terms of the express warranty, they pursued legal action, and they paid to have the siding replaced. The Carrells did not rely upon Masonite's alleged fraud and suppression and, as a matter of law, cannot recover on these three counts. The trial court properly entered the summary judgment on these three counts. The Carrells' Counts 10 and 11 allege that Masonite breached an implied warranty of merchantability by placing in the stream of commerce defective siding. Ala. Code 1975, § 7-2-725, provides a four-year limitations period for breach-of-warranty claims. These claims must be filed within four years of the tender of the goods. Stephens v. Creel, 429 So. 2d 278 (Ala.1983). Masonite tendered the goods before 1988. This lawsuit was not filed until 1996. There are two exceptions to the four-year limitations period, but neither exception applies in the Carrells' case. First, § 7-2-725(2) allows a tolling of the period if a warranty explicitly extends it to cover future performance of the goods. This provision would allow the Carrells to file a claim for breach of their express warranty, but it does not cover an implied warranty. Wright v. Cutler-Hammer, Inc., 358 So. 2d 444 (Ala.1978). Second, if Masonite had delivered a consumer good that had caused a personal injury, the statutory limitations period would run from the time of the injury. The excerpts from the Carrells' depositions, submitted in opposition to the summary-judgment motion, contain no evidence of physical injury, whether in the form of mental anguish or otherwise. Therefore, the second exception does not apply. The summary judgment was proper as to Counts 10 and 11. The Carrells' Counts 12, 13, and 14 allege negligence, wantonness, and liability under the Alabama Extended Manufacturer's Liability Doctrine. Masonite argues that all three of these claims are barred because of the "economic-loss rule." That rule bars a plaintiff from recovering under a tort in which the product caused property damage only to itself.[1]Lloyd Wood Coal Co. v. Clark Equip. Co., 543 So. 2d 671 (Ala.1989). Alabama has allowed mental-anguish damages when economic harm has occurred to a person's home. Orkin Exterminating Co. v. Donavan, 519 So. 2d 1330 (Ala.1988); Alabama Power Co. v. *125 Harmon, 483 So. 2d 386 (Ala.1986); Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297 (Ala.1986). However, the Carrells' depositions do not present substantial evidence indicating that they suffered mental anguish or any other physical injury. Therefore, the summary judgment was proper as to Counts 12, 13, and 14. The Carrells, in Count 15, seek a declaratory judgment. Alabama's Declaratory Judgment Act bars trial courts from issuing advisory opinions. Wallace v. Burleson, 361 So. 2d 554 (Ala.1978). The plaintiffs' claims are being decided on the merits. In cases, such as this one, in which a cause of action has already accrued, a court will not enter a declaratory judgment if there is not an anticipated future injury. 1 Walter H. Anderson, Actions for Declaratory Judgments § 235 (2d ed.1951). The Carrells seek relief under their other counts. The summary judgment was proper as to Count 15. There are two counts on which the judgment cannot be affirmed, because discovery has not been completed. In the Carrells' Count 2, they allege that Masonite failed in its obligation to inform them of hidden defects in the defective Masonite product. This is an allegation of fraudulent suppression made pursuant to Ala. Code 1975, § 6-5-102. To prove suppression, the Carrells must prove that the defendant suppressed material facts that the defendant was under an obligation to disclose. This obligation to disclose may arise from the specific facts of the case. § 6-5-102. Whether Masonite had a duty to disclose any defects of which it was aware is a question for the trial court. State Farm Fire & Cas. Co. v. Owen, 729 So. 2d 834 (Ala.1998). However, discovery must be completed before the trial court can weigh the six factors stated in Owen. Masonite argues that the Carrells did not rely upon the omission to inform. However, it is axiomatic that a purchaser would not choose to purchase a defective product, or that a homeowner would not allow a defect to worsen. At the least, the Carrells would not have paid full value for a home built with defective siding. Ultimately, a summary judgment in favor of Masonite may be appropriate; however, that cannot be determined until discovery is complete. The Carrells' Count 9 alleges that Masonite breached its express warranty. Masonite has admitted that it is liable on the express warranty. Masonite offered to pay $2,967.84 under the express warranty. However, the Carrells claim that the amount required to fulfill the terms of the warranty is $10,405. Viewing the evidence in the light most favorable to the Carrells, as the nonmovants, we find a disputed issue of material fact concerning the amount of money that is required to fulfill the obligation of the express warranty. Therefore, the summary judgment was improper as to Count 9. The Carrells' Count 16 was not against Masonite but against the previous homeowners, the Lowes. The trial court's order reads: "Defendants, Masonite Corporation and International Paper Co., Inc.'s Motion for Summary Judgment is granted as to all counts brought by the Plaintiffs." Count 16 was not included in Masonite's motion for summary judgment. Therefore, the summary judgment did not relate to Count 16. The trial court entered a Rule 54(b), Ala. R. Civ. P., order making the summary judgment final. Unless there has been further action in this case, Count 16 is still pending in the Circuit Court of Baldwin County. The summary judgment is affirmed insofar as it relates to Counts 1, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, and 15. It is reversed insofar as it relates to Counts 2 and 9; this case is remanded for further discovery on those counts. Count 16 is not before this Court. *126 AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. MADDOX, SEE, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., concurs specially. HOOPER, C.J., concurs in part, concurs in the result in part, and dissents in part. JOHNSTONE, Justice (concurring specially). I concur in the extension of the mere economic loss doctrine to a particular component of a home, like the siding in the case before us, which has failed so as to cause damage only to the component itself; but I would not agree to the extension of the rule to any case where the product is the home itself. I concur with this limitation because the law of warranties, both implied and express, is so much better developed than the tort law for application to such components. For several reasons, I do not and would not agree to the extension of the rule to any case where the product is the home itself. First, the tort law already developed for damage to homes is too valuable to the citizens of this state to be compromised by an extension of the mere economic loss rule. Second, homes are not ubiquitously covered by express warranties, as components and other products are. Third, the application of implied warranties to homes is not as well defined either by usage or case law as is the application of implied warranties to components. HOOPER, Chief Justice (concurring in part, concurring in the result in part, and dissenting in part). I have a concern about some of the reasoning and the unintended consequences of the opinion in this case. I understand that ordinarily a summary judgment should not be entered until discovery is complete. Tyler v. City of Enterprise, 521 So. 2d 951 (Ala.1988). But what if that discovery would be futile, no matter what the discovery would show? The plaintiffs claim that there exists evidence to show that Masonite knew for decades that the siding at issue in this case was defective. Looking at this allegation in the light most favorable to the plaintiffs, and assuming that the discovery showed that Masonite executives knew for a fact that the siding was defective, what would their duty be? Would it be to advertise to every potential customer, even buyers of used siding, like the Carrells, that the siding it sells is defective? Such a proposal is too ludicrous to entertain. If, in fact, the siding was defective, Masonite had a duty either to correct the defect before sale or to stop selling the siding. We recognize causes of action dealing with defective products, e.g., the Alabama Extended Manufacturer's Liability Doctrine. The cause of action that this Court allows today would convert every defective-product action into a fraudulent-suppression action. Does this Court really believe that there is such a paucity of fraud actions in this State that it must allow the creation of even more? The trial judge apparently recognized the absurdity of requiring Masonite to engage in a national campaign confessing that the product it had sold was defective and granted the motion for summary judgment without allowing the production of the requested discovery. I would affirm the summary judgment as to Count 2. I agree, however, that the amount required to satisfy the express warranty is in dispute. Therefore, I dissent from the reversal of the summary judgment as to Count 2 and concur in the result of the reversal of the summary judgment as to the Count 9, and I concur in the affirmance as to the other counts against Masonite. I agree that Count 16, stating a claim against the previous homeowners, is not before this Court. HOUSTON, Justice. APPLICATION OVERRULED. *127 MADDOX, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. HOOPER, C.J., and SEE, J., dissent. SEE, Justice (dissenting). I dissent from the order overruling the rehearing application filed by Masonite Corporation and International Paper Company. After further consideration, I believe Chief Justice Hooper's vote on original submission was correct, and, if I were voting today I would join his special writing, in which he concurs in part with the majority opinion, concurs in the result in part, and dissents in part. [1] We do not need to decide whether the Colorlok is a commercial good or a consumer good. See, Wellcraft Marine v. Zarzour, 577 So. 2d 414, 418 (Ala.1990).

May 12, 2000

14acc57b-ad22-4be4-b5cc-f5909b89e2b5

Stone v. Mellon Mortg. Co.

771 So. 2d 451

1980745

Alabama

Alabama Supreme Court

771 So. 2d 451 (2000) Jeffrey A. STONE v. MELLON MORTGAGE COMPANY. 1980745. Supreme Court of Alabama. May 5, 2000. *453 Russell Jackson Drake, Joe R. Whatley, Jr., and Charlene P. Cullen of Whatley Drake, L.L.C., Birmingham; Richard A. Freese of Langston, Frazer, Sweet & Freese, P.A., Birmingham; and Herman Watson of Watson, Fees & Jimmerson, P.C., Huntsville, for appellant. Henry E. Simpson, Robert D. Eckinger, and Laurence J. McDuff of Lange, Simpson, Robinson & Somerville, L.L.P., Birmingham, for appellee. LYONS, Justice. Jeffrey Stone and Susan Stone sued individually and on behalf of a class, seeking to recover a $15 fee paid to Mellon Mortgage Company ("Mellon") for facsimile transmissions of payoff statements ("fax fees") incurred in connection with refinancing their mortgage loan before its maturity. The Stones sought a recovery based on theories of breach of contract, money had and received, and unjust enrichment. Their complaint alleged that Mellon had wrongfully charged a fax fee to its customers and had wrongfully incorporated it into the amount necessary to discharge the loan; they alleged that this charge violated the terms of their note to Mellon. The trial court entered a summary judgment in favor of Mellon, and the Stones appealed. Mellon is a mortgage banking company that services mortgage loans. It held a mortgage given by the Stones to secure a loan by which the Stones had financed the purchase of their home. The loan and mortgage provided for an adjustable rate *454 of interest. The Stones' note and mortgage had been assigned to Mellon in 1992. In 1993, the Stones began investigating the possibility of refinancing their debt to move from the adjustable-rate mortgage to a fixed-rate mortgage. Paragraph 21 of the Stones' mortgage explained the procedure necessary for a "release": The Stones' note states that the borrower "may make full payment or partial prepayment without paying any prepayment charge." In order to facilitate their refinancing, the Stones contacted Lawhorn & Associates ("Lawhorn"), a Huntsville mortgage-brokerage firm owned by Calvin Lawhorn. On October 21, 1993, the Stones hired Lawhorn to secure for them a fixed-rate loan. As part of this process, the Stones signed a "General Authorization," which provided: On October 22, 1993, the day after the Stones had engaged its services, Lawhorn contacted Mellon to request "payoff" information on the Stones' adjustable-rate mortgage. Mellon contends that as part of what it calls its "scripted" response to this request, it informed Lawhorn that the Stones' payoff information could not be disclosed orally, but could be sent by United States mail free of charge or by facsimile transmission for a fee of $15. It is undisputed that Lawhorn chose to have the payoff statement sent by fax and voluntarily incurred the fax fee. However, there is a dispute between the parties as to whether Lawhorn ever discussed the fax fee with the Stones. In response to the request made by Lawhorn, Mellon faxed a two-page "payoff statement" to Lawhorn on October 25, 1993. The payoff statement read: Lawhorn subsequently secured for the Stones a fixed-rate mortgage with Secure America mortgage company and forwarded the payoff statement to Secure America's closing attorney, George Williams, so that he could prepare the documents necessary for closing. Williams prepared a "Settlement Statement" containing a line item described as "Payoff 1st Mortgage; Mellon Mortgage"the statement did not detail the underlying items making up the total payoff amount. This payoff amount included the $15 fax fee, but the Stones testified that when they attended and participated in the closing of the new loan arrangementon November 24, 1993, approximately four weeks after they had had their initial contact with Lawhornthey did not know the fax fee had been included in the payoff amount. The Stones commenced this action nearly three years after that closing. When reviewing the disposition of a motion for summary judgement, this Court applies the same standard the trial court applies "in determining whether the evidence before the court made out a genuine issue of material fact." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala. 1988). When a party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala. 1989). "Substantial evidence" is defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assur. Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). The Stones alleged a breach of contract in the first count of their complaint. First, the Stones allege that when they executed the note, they agreed to pay principal, interest, a loan charge, and the costs and expenses associated with collection should they default on their note, and they argue that the parties did not contemplate fax fees when they entered into the loan contract and that for Mellon to charge a fax fee violates the terms of the note. We are persuaded by the rationale set forth in Cappellini v. Mellon Mortgage Co., 991 F. Supp. 31 (D.Mass.1997), where the court rejected this same argument: Id. at 39-40. We conclude that Mellon did not violate the terms of the note by charging the Stones the fax fee. The Stones next contend that Mellon's including the fax fee in the amount given in the payoff statement violated the terms of the mortgage because, according to the Stones, the effect of the term "TOTAL TO PAY LOAN IN FULL," used in reference to a figure that included the fax fee, was to condition the release of the mortgage on the Stones' paying the fax fee in addition to those expenses specified by the mortgage. Paragraph 21 of the mortgage, entitled "Release," states: This language states that the mortgage will be released upon payment of the secured sums (principal and interest) and any recordation fees. Indeed, if Mellon had in fact withheld the release of the Stones' mortgage until they paid the fax fee, Mellon's policy would have violated the terms of the mortgage. We find no breach of contract in the simple imposition of a fax fee. As we discuss later in connection with the Stones' claims based on the theories of unjust enrichment and money had and received, *456 the Stones' agent incurred the fax fee for expedited services and charging the Stones for it did not breach the terms of the mortgage. See Cappellini v. Mellon Mortgage Co., supra. In addition, the payoff statement purports to state a sum that would be the "Total To Pay Loan in Full," rather than the "Total To Pay Loan in Full and Discharge Security Instrument." We conclude that the record before us does not suggest a breach of the terms of the mortgage. We agree with what the Washington Court of Appeals wrote in Cain v. Source One Mortgage Services Corp., 97 Wash. App. 1014 (1999) (notation of unpublished opinion).[1] On similar facts, that court held that charging the fax fee and listing it on the payoff statement did not breach the terms of the contract. That court also declined to address the question whether the payoff statement gave the misleading impression that the mortgage would not be released unless the fee was paid, because, that court held, the plaintiffs' fraud claims were barred by the running of the limitations period. Id. We, likewise, decline to address that question, because the Stones did not allege fraud as a theory of recovery and, if they had alleged fraud, their fraud claim would have been barred by the statute of limitations; this action was filed nearly three years after the closing on the refinancing loan. The trial court properly entered the summary judgment in favor of Mellon on the breach-of-contract claim. Having determined that Mellon did not breach the contract, we turn to the Stones' other claims, claims based on the theory of money had and received and the theory of unjust enrichment. Mellon contends that the Stones voluntarily paid the fax fee and therefore cannot recover under either theory. We agree. This Court has long recognized the defense of voluntary payment: Mt. Airy Ins. Co. v. Doe Law Firm, 668 So. 2d 534, 537 (Ala.1995). Claims based on theories of breach of contract, unjust enrichment, and money had and received are precluded by proof that the plaintiff voluntarily paid what he or she is seeking to recover. Id. The Stones argue that the evidence is conflicting on the question whether Lawhorn ever informed them of the fax fee, and they then argue that this conflict creates a genuine issue of material fact and that this issue of fact barred the entry of a summary judgment based on the defense of voluntary payment. The Stones rely on the limited scope of the agency relationship created by the "General Authorization" they gave Lawhorn. The Stones assert that the authority they gave Lawhorn was not broad enough to allow Lawhorn to incur a fax fee on their behalf. *457 Mellon contends that the General Authorization is not the exclusive source of Lawhorn's authority and that Lawhorn had the authority to act on behalf of the Stones in incurring the fee. When the Stones hired Lawhorn to assist them in securing refinancing, they, according to Mrs. Stone, authorized Lawhorn to "take care of all the details" related to the refinancing. One part of this process required Lawhorn to obtain payoff information on the Stones' existing loans or debts in order to obtain a record reflecting the Stones' financial status. Some form of written authorization was necessary for Lawhorn to obtain information from third parties concerning the Stones. The purpose for which Lawhorn was retained (to obtain fixed-rate financing), required more than simply collecting information about the Stones. Under the undisputed evidence, Lawhorn had the implied authority to engage in activities in furtherance of the purpose of obtaining a fixed-rate mortgage. Merrell v. Joe Bullard Oldsmobile, Inc., 529 So. 2d 943, 947 (Ala.1988) (trial court's instruction to the jury, approved as an "accurate statement of the applicable law," 529 So.2d at 948). An agent's knowledge can bind the principal if the agent acquired the knowledge while acting within the line and scope of his authority and the knowledge relates to the very matter coming within his authority. Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So. 2d 224 (1944); see, also, Tennessee Valley Bank v. Williams, 246 Ala. 563, 566, 21 So. 2d 686, 689 (1945). Given Lawhorn's implied authority, we conclude that Lawhorn's knowledge is the Stones' knowledge. Therefore, it was within Lawhorn's implied authority to incur the fax fee on behalf of the Stones. While the evidence is in conflict as to whether Lawhorn had ever specifically informed the Stones that it had incurred the $15 fax fee, that conflict does not create a "genuine issue of material fact," given our holding that Lawhorn's knowledge was imputed to them. Lawhorn, acting as the Stones' agent, received the payoff statement and, acting on behalf of the Stones, placed it in the hands of the closing attorney, thereby setting in motion the final steps necessary to cause the fax fee to be included in the amount paid to Mellon to pay off the note. We conclude that Lawhorn's actions, which we hold were attributable to the Stones, constitute a payment of the fax fee by the Stones. The Stones argue that the voluntary-payment defense is inapplicable in this case because, they say, the payment was made not voluntarily but under duress and under a mistake of fact. Mt. Airy Ins. Co., 668 So. 2d at 538. Although evidence of duress or mistake can limit the application of the voluntary-payment doctrine, we find no such evidence in this case. First, Lawhorn, acting as the Stones' agent, requested the faxed information over a month before the closing. For all that appears, the Stones had a reasonable alternative; they could have gotten the payoff statement by mail, free of charge. But, even if the urgency of the situation had required the use of facsimile transmission rather than the regular mail service and the record does not suggest it did the Stones' failure to challenge the payment until nearly three years after the duress had been lifted, destroys any reasonable factual basis for a finding of duress. "A contract made under duress will be deemed ratified if the aggrieved party fails to repudiate the agreement within a *458 reasonable time after the duress has dissipated." Keshishian v. CMC Radiologists, 142 N.H. 168, 173, 698 A.2d 1228, 1232 (1997). A nearly three-year delay, under these facts, falls well beyond the outer limit of a reasonable time, as a matter of law. The Stones argue that the payment was not voluntary, because, they say, it was made under a mistake of fact. The mistake, they say, is that they thought payment of the fax fee was necessary for a release of the mortgage. The Stones argue that because they, ostensibly through knowledge of their agent, Lawhorn, believed that payment of the fax fee was necessary for a release of the mortgage, the payment was made under a mistake of fact; that mistake of fact, they argue, precludes application of the voluntary-payment doctrine. See Mt. Airy Ins. Co., 668 So. 2d at 538. Mellon's fax fee is separately listed on the payoff statement, distinct from the loan principal and the accrued interest. See Colangelo v. Norwest Mortgage, Inc., 598 N.W.2d 14 (Minn.App.1999). The fact that Lawhorn, as the Stones' agent, may have read more into the phrasing of the statement than that phrasing logically and fairly suggestsand we cannot know that Lawhorn did thatwould not provide a factual basis for a finding that the fee was paid because of a mistake of fact. Likewise, the testimony of Mellon's representative as to what Mellon would have done if the Stones had inquired whether the fax fee was a condition for release of the mortgage, does not create a genuine issue of material fact. At most, Lawhorn made a mistake of law, a mistake that would be imputed to the Stones. If a party with full knowledge of the facts wrongly interprets them, so that he misperceives their legal significance, that wrong interpretation does not constitute a mistake of fact. The Stones' misperception of the legal significance or effect of Mellon's including the fax fee in the total shown on the payoff statement constitutes a mistake of law rather than a mistake of fact, and a mistake of law does not preclude the application of the voluntary-payment doctrine. Sherrill v. Frank Morris Pontiac-Buick-GMC, Inc., 366 So. 2d 251, 257 (Ala.1978) (Torbert, C.J., concurring specially); see, also, Hinson v. Byrd, 259 Ala. 459, 66 So. 2d 736 (1953) (where three people participating in transaction had full knowledge of the facts and of their existing legal rights, but were operating under a misconception of the legal meaning and effect of an instrument they had executed, the mistake was one of law). The rule by which the law denies one a recovery for a voluntary payment is subject to an exception where the payment has been procured by a fraud. Mt. Airy Ins. Co., 668 So. 2d at 537. However, in their complaint the Stones did not allege a misrepresentation by Mellon, and in their brief on appeal they make no argument that would support a finding of fraud on the part of Mellon. We are unwilling to characterize Mellon's conduct as fraud and thereby save the Stones from the effect of their voluntary payment made under a possible mistake of law. Because the Stones did not object to the fax fee once their loan transaction had closed and their alleged duress had been lifted, and because they have shown no mistake of fact, the voluntary-payment *459 doctrine defeats their claims based on theories of unjust enrichment and money had and received. The summary judgment is affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, and ENGLAND, JJ., concur. [1] Although Cain is not published in either Washington Appellate Reports or Pacific Reporter, it appears on the Westlaw and LEXIS databases. As an unpublished opinion, Cain carries no precedential value in the State of Washington. See Wash. Rev.Code § 2.06.040 (1998). Although the Alabama appellate courts publish all opinions, Alabama has a similar rule regarding unpublished orders and judgments. See Rule 53(d), Ala. R.App. P. Cain's unpublished status, however, does not preclude us from using it in our analysis. No opinion from another state court is binding on the courts of Alabama, but we often cite such an opinion as persuasive authority. We cite Cain because it is a well-reasoned opinion that addresses the precise issue before us.

May 5, 2000

68f8577b-1f32-4f36-88ea-6b185aead3df

US Fidelity v. Baldwin County Home Builders

770 So. 2d 72

1980408

Alabama

Alabama Supreme Court

770 So. 2d 72 (2000) UNITED STATES FIDELITY AND GUARANTY COMPANY v. BALDWIN COUNTY HOME BUILDERS ASSOCIATION, INC., and L.M. Smith. 1980408. Supreme Court of Alabama. May 5, 2000. Edward G. Bowron and Michael A. Montgomery of Pierce, Ledyard, Latta & Wasden, P.C., Mobile, for appellant. W. Beatty Pearson of Pearson, Cummins & Hart, Spanish Fort, for appellees. BROWN, Justice. United States Fidelity and Guaranty Company ("USF & G"), the defendant in a declaratory-judgment action, appeals from a summary judgment entered in favor of the plaintiffs Baldwin County Home Builders Association, Inc. ("BCHBA"), and L.M. Smith ("Smith"). We reverse and remand. BCHBA and Smith sued for a judgment declaring that USF & G was obligated to defend and/or indemnify BCHBA and Smith with regard to an action that had been brought against them by Robert Crowe and Rowena Crowe. On or about January 10, 1994, the Crowes purchased a new house from BCHBA. The house, located at 21940 Country Woods Drive in Fairhope, had been constructed by L.M. Smith Construction Company, Inc., of which Smith was president. Smith was also an officer of BCHBA. Shortly after moving into the house, the Crowes began experiencing drainage problems in the yard. Specifically, water tended to collect and form a pool at the base of an oak tree in the southwest corner of the lot. The house was served by a septic tank, and the tree was located at the edge of the soil fill covering the septic tank. Eventually, the water would flow from that pool into the street. Robert Crowe ("Crowe") informed Smith of this alleged problem with seepage from the septic tank or its field lines, and of other problems, in the early part of 1994. *73 Smith referred Crowe to John Barr of Heaton Septic Tank Services, the subcontractor that had installed the Crowes' septic tank. Barr came to the property and looked at the problem. Following Barr's visit, Crowe wrote a letter to Barr, proposing various ways to correct the drainage problem. Barr took no action. On January 13, 1995, Crowe sent Smith a letter stating that something had to be done to correct the seepage from the septic-tank field lines and that the Crowes expected the homebuilder's warranty to cover any necessary repairs. The letter stated: (C. 210.) On January 16, 1995, Smith responded by a letter to Crowe, stating that he had informed Heaton Septic Tank Services about Crowe's proposed corrections. In the letter, Smith volunteered to contact the designer of the septic-tank system, Seth Moore, of Moore Engineering Company. The Crowes heard nothing further from Smith, Heaton Septic Tank Services, or Moore Engineering Company. On March 18, 1995, Crowe sent Smith another letter requesting correction of the septictank seepage problem. In this letter, Crowe stated that he was prepared to take corrective action, but that he was still willing to work with Smith's subcontractor. In the closing paragraphs of the letter, he wrote: (C. 212.) Crowe sent another letter to Smith on May 29, 1995. In this letter, Crowe advised Smith that he had taken corrective action and requested reimbursement for $498.31 he said he had spent on the project. However, on June 6, 1995, Smith responded with a letter stating that the problem had been misdiagnosed as a septic-tank problem. He stated that Moore Engineering Company and the Baldwin County Health Department had conducted an investigation and had found the problem to be related to the underground water table. Smith then referred the matter to BCHBA. The Crowes filed a claim with BCHBA for reimbursement for the drainage repairs. In June 1995, BCHBA refused to reimburse Crowe because, it said, damage caused by subsurface water was not covered by the Crowes' homebuilder's warranty. In January 1996, the Crowes sued BCHBA and Smith, seeking damages based on claims of negligence, breach of contract, fraud, and civil conspiracy. BCHBA and Smith were insured under a general commercial liability policy issued by USF & G.[1] On January 18, 1996, *74 BCHBA notified USF & G of the Crowes' lawsuit. However, USF & G denied coverage, stating that it had not received timely notice of the claim. USF & G also denied coverage on the breach-of-contract claim, the fraud claim, and the negligence claim (alleging negligent design and/or installation) on the basis that the USF & G policy provided no coverage for liability based on such claims. BCHBA and Smith sued for a judgment declaring that USF & G was obligated to defend them against the Crowes' claims. BCHBA, Smith, and USF & G filed motions for summary judgment. On October 20, 1998, the trial court entered a summary judgment in favor of BCHBA and Smith, declaring that USF & G was liable to defend them in the Crowes' action. On November 30, 1998, USF & G appealed. We review a summary judgment de novo. Hobson v. American Cast Iron Pipe Co., 690 So. 2d 341, 344 (Ala.1997). In reviewing the summary judgment, we must first examine the applicable portions of the USF & G insurance policy. Section IV of the policy contains these notification provisions: (C. 227.) The policy defines "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." However, the policy does not state what constitutes "an offense which may result in a claim," or what constitutes a "claim." This Court has held that the negligent installation of a roof on a school gymnasium, which caused leaks and ultimately property damage, was an "occurrence" within the meaning of another USF & G *75 policy. United States Fidelity & Guar. Co. v. Bonitz Insulation Co., 424 So. 2d 569 (Ala.1982). The USF & G policy in Bonitz Insulation defined "occurrence" as "`an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the Insured." Id. at 571. Although the definition in the Bonitz Insulation policy is slightly different from the definition in the policy in this present case, we note that the first portion of the two definitions is the same. In Bonitz Insulation, other parts of the gymnasium suffered water damage. This Court stated: Id. In the case before us, the trial court did not indicate whether or when an "occurrence" had taken place or whether or when a "claim" was made. It simply stated on its docket sheet that a summary judgment was entered in favor of the plaintiffs and against USF & G. If an "occurrence" takes place, or a "claim" is made, or a "suit" is filed, the policy requires that the insured give USF & G notice "as soon as practicable." This Court has held: Bonitz Insulation, 424 So. 2d at 572. In Thomas, cited by this Court in Bonitz Insulation, this Court stated: Thomas, 334 So. 2d 879, 882-83. Thus, the determination of the fundamental issue, whether notice of the occurrence or claim was given to the insurer within a reasonable time, rests on the reasonableness of the delay. BCHBA and Smith offered an excuse for their delay in giving notice to USF & G; therefore, the question is whether the excuse they offered was reasonable. If conflicting inferences can be drawn from the evidence, the question of reasonableness is submitted to the trier of fact. If the facts are undisputed, however, and the insured does not show justification for the protracted delay, the court may find the delay unreasonable as a matter of law. Thomas, 334 So. 2d at 883; Bonitz Insulation, 424 So. 2d at 572-73. In Bonitz Insulation, this Court held that an insured's five-year delay in notifying its insurer of an "occurrence," a delay based on the insured's believing that the subcontractor was repairing the leaking *76 roof, was reasonable. Thus, USF & G owed Bonitz a duty to defend it against the claims made by the City of Midfield. Although this Court stated that a contractor's belief that a subcontractor was correcting the problem "raise[d] conflicting inferences as to the reasonableness of the delay," 424 So. 2d at 573, it affirmed the trial court's judgment holding that the delay was reasonable, because the trial court's decision was based on ore tenus evidence.[2] Although Smith referred Crowe to the subcontractors, Heaton Septic Tank Services and Moore Engineering, Smith remained in constant contact with the subcontractors, and Smith was probably aware that the subcontractors were not correcting the seepage problem at the Crowe residence. In Crowe's letter to Smith dated January 13, 1995, Smith was told that Heaton Septic Tank Services had taken no action. Smith testified that he and BCHBA did not notify USF & G until after the lawsuit had been filed because, they say, they had believed until then that the problem could be "worked out." BCHBA and Smith argued that because Crowe did not respond to Smith's June 6 letter informing Crowe that the problem would not be covered under his homebuilder's warranty, BCHBA and Smith considered the issue resolved. BCHBA and Smith also argue that the letters from Crowe to Smith did not indicate that the Crowes would sue. USF & G claims that the letters did, in fact, notify Smith that the Crowes intended to sue. BCHBA and Smith also argue that notice to USF & G was not required, because, they say, they were not liable for the alleged injury to the Crowes; they say they were not liable because, they argue, the drainage problem was not covered under the homebuilder's warranty. BCHBA and Smith offered mitigating circumstances, leading to conflicting inferences concerning the reasonableness of the delay; their excuses could be found to justify the protracted delay. Thus, the matter should be resolved by the trier of fact. Given these circumstances, the trial court improperly entered the summary judgment in favor of BCHBA and Smith. Accordingly, that judgment is reversed, and, because BCHBA and Smith offered mitigating circumstances, the question of the reasonableness of their delay in giving notice is a question for the trier of fact. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, SEE, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. [1] The parties did not dispute Smith's coverage under BCHBA's policy with USF & G. [2] Because the trial court in Bonitz Insulation heard ore tenus evidence, this Court presumed that the trial court's findings of fact were correct. However, in this present case, we are reviewing a summary judgment by a de novo standard of review.

May 5, 2000

d19e441e-b410-4274-9701-eb4ed2565e1e

Ex Parte Ford

782 So. 2d 185

1981651

Alabama

Alabama Supreme Court

782 So. 2d 185 (2000) Ex parte Margaret FORD. (Re Margaret Ford v. Cagles, Inc.) 1981651. Supreme Court of Alabama. April 21, 2000. Ralph E. Coleman of Coleman, Friday & Clem, Birmingham, for petitioner. Daniel J. Burnick and Howard P. Walthall of Sirote & Permutt, P.C., Birmingham, for respondent. SEE, Justice. This is a workers' compensation case. We granted the plaintiff Margaret Ford's petition for certiorari review to resolve a question of first impression, specifically, whether a settlement agreement entered into by a worker and her employer at a benefit-review conference conducted by an ombudsman in accordance with Ala. Code 1975, § 25-5-290 et seq., is enforceable if the court does not make a finding, *186 pursuant to § 25-5-83, that the agreement was in the worker's best interest. We conclude that under the facts of this case, where Ford did not seek to have the settlement agreement set aside until more than 60 days after the date of the agreement, that agreement is enforceable. Accordingly, we affirm the Court of Civil Appeals' no-opinion affirmance of the trial court's order refusing to set aside the settlement agreement. Ford was employed by Cagles, Inc. Ford alleged that she had suffered a carpaltunnel injury and a neck injury and that both injuries were work-related. She sued Cagles, seeking workers' compensation benefits. She and Cagles agreed to participate in a "benefit-review conference," pursuant to Ala.Code 1975, §§ 25-5-290 through -25-5-292. At the benefit-review conference on January 20, 1998, the parties agreed that Ford would resign from her position at Cagles and withdraw her claim regarding an alleged neck injury, and that Cagles would pay her $11,000 in settlement of all claims relating to the carpal-tunnel injury. This settlement agreement was reduced to writing and was signed, at the benefit-review conference, by Ford and her counsel and by Cagles and its counsel. Ford later became dissatisfied with the attorney who had represented her at the benefit-review conference, and she also changed her mind about the agreement. On March 19, 1998, Cagles filed a motion to "enforce the agreement." Ford hired a new attorney. On April 8, 1998, she objected to the motion to enforce the agreement and asked the court to set aside the agreement. The trial court granted Cagles's motion to enforce the agreement. Ford appealed to the Court of Civil Appeals, and that court, on April 16, 1999, affirmed, without an opinion. Ford v. Cagles, Inc. (No. 2971331), 777 So. 2d 328 (Ala.Civ.App.1999) (table). On certiorari review, Ford argues that the trial court erred in approving and enforcing the settlement agreement without first finding either that the agreement was in her best interest or that the agreement would pay her at least as much as she would have been entitled to under the Workers' Compensation Act. See Ala.Code 1975, §§ 25-5-83 and -25-5-56. We disagree, because we conclude that in this case court approval of the settlement agreement was not required and Ford did not seek court review of the agreement within 60 days after the parties had signed it. See Ala.Code 1975, § 25-5-290 through -25-5-292. In Shaw v. Dover Furniture Mfg. Co., 700 So. 2d 1382 (Ala.Civ.App. 1997), the Court of Civil Appeals explained: 700 So. 2d at 1384. When a "worker agrees to accept an amount less than provided for by statute," Shaw, the trial court may not approve the settlement unless it "determines that it is for the best interest of the employee." Ala.Code 1975, § 25-5-56. Similarly, when a "worker agrees to accept a lump sum payment in lieu of periodic payments," Shaw, the trial court may not approve the commutation of compensation to a lump-sum payment unless it "is satisfied that it is in the best interest of the employee." Ala.Code 1975, § 25-5-83. *187 Furthermore, "the better practice is for the trial judge to make a specific finding on the record that the settlement is in the employee's best interest," and, "[i]f the trial judge does not specifically make such a finding, then the record must affirmatively show that the settlement is in the employee's best interest." Shaw, 700 So. 2d at 1385. However, in 1992, the Alabama Legislature provided for an "Ombudsman Program to assist injured or disabled employees... in protecting their rights and obtaining information available under the Workers' Compensation Law." Ala.Code 1975, § 25-5-290(a). One of the features of the Ombudsman Program is the "benefit-review conference," which is a "nonadversarial, informal dispute resolution proceeding" conducted by an ombudsman trained in dispute mediation. Ala.Code 1975, § 25-5-291; see § 25-5-290(e). The parties may enter into settlement agreements at the benefit-review conference. See § 25-5-292(a, b). A settlement agreement made at a benefit-review conference is "effective on the date the settlement is signed unless one of the parties submits the settlement to the court for approval as provided in this article [i.e., Article 11 of chapter 5 of Title 25, the article of the Workers' Compensation Act providing for the Ombudsman Program]." § 25-5-292(a); see also § 25-5-290(f)(2). Section 25-5-292(b) further provides that a settlement agreement entered into at a benefit-review conference is "binding on all parties through the final conclusion of all matters relating to the claim, unless within 60 days after the agreement is signed or approved the court on a finding of fraud, newly discovered evidence, or other good cause, shall relieve all parties of the effect of the agreement." In this case, the parties agreed at the benefit-review conference to settle their dispute by Ford's resigning her position with Cagles and withdrawing her claim for benefits concerning a neck injury, and Cagles's making a lump-sum payment to Ford of $11,000. Ford did not submit the settlement agreement for court approval within 60 days after the date of the settlement agreement.[1] On April 8, 1998, more than 60 days after the January 20 agreement, Ford objected to the enforcement of the agreement and asked the trial court to set aside the agreement. Because Ford's request to set the agreement aside was made more than 60 days after the parties had signed the agreement, the trial court did not have jurisdiction to set it aside. Therefore, the trial court properly refused to do so. The trial court properly refused to set aside the settlement agreement entered into by Ford and Cagles at the benefit-review conference. The Court of Civil Appeals properly affirmed the order of the trial court, and we affirm the judgment of the Court of Civil Appeals. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, LYONS, BROWN, and ENGLAND, JJ., concur. COOK and JOHNSTONE, JJ., concur in the result. *188 JOHNSTONE, Justice (concurring in the result). I concur only in the result, because (I think) the trial court did have jurisdiction to set aside the agreement but the employee did not prove by evidence that good cause existed to relieve her of the effect of the agreement. Section 25-5-292(a), Ala.Code 1975, provides that a settlement is "effective on the date the settlement is signed unless one of the parties submits the settlement to the court for approval as provided in this article." (Emphasis added.) The employer's motion to enforce the settlement agreement did, in fact, constitute the employer's submission of "the settlement to the court for approval." Everything in the materials before us demonstrates that such court approval was the primary goal of the employer's motion. Thus the settlement remained inchoate. Section 25-5-292(b), Ala.Code 1975, provides: Because the agreement was still pending approval by the court, the court had jurisdiction to find either "fraud, newly discovered evidence, or other good cause." In other words, because the agreement was still pending approval, the 60-day deadline period had not yet begun to run. The employee, however, does not show in her briefs before us, that she proved "other good cause" by the evidence. While her briefs argue that her own lawyers coerced her into accepting the settlement and that her job-related disability exceeded the sum set by the settlement agreement, her briefs do not cite to evidence to such effect presented to the trial judge, much less evidence so conclusive that the trial judge would be subject to reversal for failure to relieve the employee of the effect of the agreement. Thus, while inadequacy, undue influence, and coercion are recognized grounds for vacating a settlement, § 25-5-56, Ala.Code 1975, the trial court did not err in refusing to grant the employee relief on any such grounds. On the other hand, our recognizing the durability of the jurisdiction of the trial court over such settlement agreements is important to conform the ombudsman process to the beneficent purpose of the workers' compensation statutes to protect employees. COOK, J., concurs. [1] In its motion to enforce the settlement agreement, Cagles asserted that "[p]rior to [the date of the motion], Cagles, Inc., has attempted to obtain court approval in this matter," and that "[t]o date, the Plaintiff has failed to agree to court approval." We do not interpret that statement to mean that Cagles asked the court to approve the agreement. Rather, we interpret that statement as meaning that Cagles sought Ford's agreement to obtain court approval. The record contains no indication that Cagles asked the court to approve the settlement agreement.

April 21, 2000

623ea72e-2b06-4ea6-ae19-3f8ceece27b7

Oakwood Mobile Homes, Inc. v. Barger

773 So. 2d 454

1981749

Alabama

Alabama Supreme Court

773 So. 2d 454 (2000) OAKWOOD MOBILE HOMES, INC. v. Larry BARGER and Donna Barger. 1981749. Supreme Court of Alabama. June 9, 2000. *455 Jon B. Terry, Bessemer, for appellant. Leah O. Taylor of Taylor & Taylor, Birmingham, for appellee. JOHNSTONE, Justice. Oakwood Mobile Homes, Inc. (Oakwood) a defendant in a case pending in the Tuscaloosa County Circuit Courtappeals from the trial court's order denying its motion to compel arbitration of the plaintiffs' claims. The remaining defendants Jerry Edmondson and Mike Clary do not appeal. We reverse and remand. The plaintiffs Larry Barger and Donna Barger purchased a mobile home from Oakwood, a mobile home manufacturer and dealer, in late July 1997. Larry signed one set of documents relating to the closing on one day and a second set the next day. The Bargers claim the first set included a "Contract to Purchase and Deposit Agreement" setting the total purchase price at $22,000.00. The Bargers claim that Oakwood salesman Jerry Edmondson and Oakwood manager Mike Clary represented the second set of documents as being "for insurance purposes," so Oakwood could move the mobile home to the Bargers' lot. Larry did not notice any arbitration agreement among any of the documents he executed. About 10 months after the closing, the Bargers received from Oakwood copies of the documents purporting to be the closing documents. Included was a "Contract to Purchase and Deposit Agreement" showing the total purchase price as $40,014.23 rather than the $22,000.00 the Bargers remembered. Also included was an Arbitration Agreement bearing Larry's signature, a document he did not recall signing. In November 1998 the Bargers sued Oakwood, Edmondson, and Clary on various contract and tort theories. The gravamens of the theories were the nearly $18,000.00 increase in the purchase price shown on the recently received copy of the Contract to Purchase and Deposit Agreement and the fraudulent inducement or procurement of the Arbitration Agreement. On December 30, 1998, Oakwood moved to compel arbitration. Oakwood attached a copy of the arbitration agreement to its motion. The agreement reads: "This Arbitration Agreement (`Agreement') is executed contemporaneously with, and as an inducement and consideration for, an installment or sales contract (`Contract') for the purchase of a manufactured home (`Home') as described in the Contract by the purchaser(s) (`Purchaser') with Oakwood Mobile Homes Inc. DBA OAKWOOD MOBILE HOMES INC. (`Retailer'). The parties hereto acknowledge that this Agreement is part of the Contract and that the Contract evidences a transaction in interstate commerce governed by the Federal Arbitration Act. This Agreement is binding on and inures to the benefit of the Purchaser, the Retailer, and their successors and assigns. This Agreement is also for the benefit of the manufacturer, and any entity providing financing and their successors and assigns, who may elect to submit any dispute covered by this Agreement to binding arbitration by providing written notice to the Retailer and the Purchaser *456 within 60 days of the date any complaint is served upon them. The Bargers filed an opposition to Oakwood's motion, along with supporting affidavits. They claimed that Larry Barger's signature on the arbitration agreement was induced or procured by fraud. The Bargers submitted affidavits from Larry Barger, Donna Barger, and Vernon LeCroy, a coworker of Larry Barger. Larry Barger testified by affidavit, in pertinent part, as follows: The affidavit testimony of Donna Barger corroborates Larry Barger's affidavit testimony that, in the presence of Jerry Edmondson, he signed a contract for the purchase of a mobile home, the contract showed a purchase price of $22,000, and he did not sign an arbitration agreement when he signed the contract. The affidavit testimony of Vernon LeCroy corroborates Larry Barger's statement that Mike Clary came to Larry's place of business and told Larry to sign some papers for insurance purposes so that the mobile home could be moved, and that Larry signed six or seven documents at the request of Clary. Oakwood filed a brief in support of its motion to compel arbitration. Oakwood argued that fraud in the inducement of the contract does not prohibit arbitration of the Bargers' claims. In addition to its brief, Oakwood submitted an affidavit from Clary, wherein he stated that in June 1997 the Bargers and Jerry Edmondson completed a loan application which was denied two days after its submission for approval. Clary stated also that, for five weeks after the denial of their loan application, the Bargers constantly called and visited Edmondson. Clary stated that he tried several times to have the Bargers' loan application approved but did not succeed in that endeavor. He stated further that "in August 1997," one of Oakwood's loan officers approved the Bargers' loan application and that Jerry Edmondson closed the loan on "August 1, 1997." Denying taking any documents to Larry Barger's place of business, Clary stated that Larry Barger signed all of the "contractual papers in our offices including the arbitration agreement on August 1, 1997." Following the submission of briefs, affidavits, and the arguments of counsel, the trial court entered an order denying Oakwood's motion to compel arbitration. The order stated that the Bargers had denied that they agreed to arbitration and that they claimed that Oakwood fraudulently induced Larry Barger to sign the arbitration agreement. Oakwood appeals. On appeal, Oakwood contends that, because the specific language of the arbitration agreement requires arbitration of the validity or enforceability of the agreement, the trial court erred in denying Oakwood's motion to compel arbitration. *459 "Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute,... so the question `who has the primary power to decide arbitrability' turns upon what the parties agreed about that matter." First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995). Moreover, "[w]hen deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts generally ... should apply ordinary state-law principles that govern the formation of contracts." Id. at 944, 115 S. Ct. 1920. "Courts should not assume that the parties agreed to arbitrate arbitrability unless there is `clea[r] and unmistakabl[e]' evidence that they did so." Id. at 944, 115 S. Ct. 1920. See also AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986). The arbitration agreement signed by Larry Barger contains clear and unmistakable language that the validity and enforceability of the agreement is subject to arbitration: However, this language does not resolve the question of arbitrability. Larry Barger and Donna Barger claim that Clary fraudulently induced Larry into signing the arbitration agreement and that, therefore, their claims should be resolved by the trial court. Allstar Homes, Inc. v. Waters, 711 So. 2d 924 (Ala.1997). In Allstar Homes, this Court held that "[i]n determining whether there is clear and unmistakable evidence that the parties agreed to submit the issue of arbitrability to the arbitrator, `the related and antecedent issue of whether an agreement to arbitrate is a contract of adhesion, fraudulently induced, or otherwise revocable, is an issue for the court as well....'" 711 So. 2d at 929 (quoting Aviall, Inc. v. Ryder System, Inc., 913 F. Supp. 826, 831 (S.D.N.Y.1996)). See also Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S. Ct. 1801, 18 L. Ed. 2d 1270 (1967). Fraud in the inducement consists of one party's misrepresenting a material fact concerning the subject matter of the underlying transaction and the other party's relying on the misrepresentation to his, her, or its detriment in executing a document or taking a course of action. See Reynolds v. Mitchell, 529 So. 2d 227 (Ala.1988). Larry Barger's assertionthat he signed the arbitration agreement in reliance upon Clary's statement that Larry was signing papers for insurance purposes so that the mobile home could be moved is better characterized as a claim of fraud in the factum. Fraud in the factum occurs when a party "procures a[nother] party's signature to an instrument without knowledge of its true nature or contents." Langley v. Federal Deposit Ins. Corp., 484 U.S. 86, 93, 108 S. Ct. 396, 98 L. Ed. 2d 340 (1987). See also Drinkard v. Embalmers Supply Co., 244 Ala. 619, 14 So. 2d 585 (1943), and Burroughs v. Pacific Guano Co., 81 Ala. 255, 1 So. 212 (1887). Fraud in the factum constitutes ineffective assent to the contract. Cancanon v. Smith Barney, Harris, Upham & Co., 805 F.2d 998 (11th Cir.1986). In Cancanon, a Smith Barney employee represented to the Cancanons that they were signing a money market account agreement when in fact they were signing a securities account agreement. The Cancanons, who could not read English, relied upon the Smith Barney employee's representation when they signed the securities account agreement. The securities account agreement contained an arbitration provision. Thereafter, the Smith Barney employee handled 93 separate transactions in the securities account that resulted in earned commissions of $38,693 and the near exhaustion of the Cancanons' principal *460 of $74,657.71. After the Cancanons sued Smith Barney, Smith Barney moved to compel arbitration. The Cancanons asserted the defense of fraud in the factum on the ground that they never intended to open a securities account. The United States District Court compelled arbitration of the Cancanons' negligence, civil theft, and fraud claims but denied arbitration of the Cancanons' claim under § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b). Smith Barney appealed and the Cancanons cross-appealed. Holding that claims of fraud in the factum or of lack of assent to a contract are not subject to arbitration, the Court of Appeals for the Eleventh Circuit reversed that portion of the District Court's order compelling the Cancanons to arbitrate their state-law claims. The Eleventh Circuit affirmed that portion of the District Court's order denying arbitration of the Cancanons' Securities Exchange Act claim. Other courts have held that claims of fraud in the factum or of lack of assent to a contract are not subject to arbitration. Chastain v. Robinson-Humphrey Co., 957 F.2d 851 (11th Cir.1992); Three Valleys Mun. Water Dist. v. E.F. Hutton & Co., 925 F.2d 1136 (9th Cir.1991); National R.R. Passenger Corp. v. Boston & Maine Corp., 850 F.2d 756 (D.C.Cir.1988); Brotherhood of Teamsters & Auto Truck Drivers Local No. 70 v. Interstate Distrib. Co., 832 F.2d 507 (9th Cir.1987); Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51 (3d Cir.1980); N & D Fashions, Inc. v. DHJ Indus., Inc., 548 F.2d 722 (8th Cir.1976); General Media, Inc. v. Shooker, (No. 97 Civ. 510, July 16, 1998) (S.D.N.Y. 1998) (not published in F.Supp.); Rainbow Investments, Inc. v. Super 8 Motels, Inc., 973 F. Supp. 1387 (M.D.Ala.1997); WMX Technologies, Inc. v. Jackson, 932 F. Supp. 1372 (M.D.Ala.1996); Nuclear Elec. Ins. Ltd. v. Central Power & Light Co., 926 F. Supp. 428 (S.D.N.Y.1996); Kyung Lee v. Pacific Bullion (New York), Inc., 788 F. Supp. 155 (E.D.N.Y.1992); Dougherty v. Mieczkowski, 661 F. Supp. 267 (D.Del. 1987); Shearson Lehman Bros., Inc. v. Crisp, 646 So. 2d 613 (Ala.1994). But see R.M. Perez & Assocs., Inc. v. Welch, 960 F.2d 534 (5th Cir.1992), and C.B.S. Employees Fed. Credit Union v. Donaldson, Lufkin & Jenrette Secur. Corp., 912 F.2d 1563 (6th Cir.1990). In Shearson Lehman Bros., supra, this Court recognized that a challenge to avoid or to rescind a contract is subject to arbitration but a challenge to the very existence of a contract is not subject to arbitration. A claim of fraud in the factum is a challenge to the very existence of the contract. Cancanon, supra. In Shearson Lehman Bros., this Court adopted the rationale of Three Valleys Municipal Water District v. E.F. Hutton & Co., 925 F.2d 1136 (9th Cir.1991), which involved a claim of fraud in the factum relating to a contract containing an arbitration clause, and which cited Cancanon, supra. In Three Valleys the Court of Appeals for the Ninth Circuit stated that only a court determines whether a contract exists inasmuch as an arbitrator's authority to resolve disputes is derived from the contract. "A contrary rule would lead to untenable results. Party A could forge party B's name to a contract and compel party B to arbitrate the question of the genuineness of [his or her] signature." Three Valleys, 925 F.2d at 1140. Therefore, because this Court has adopted the rationale of Three Valleys, a claim of fraud in the factum is to be decided by a trial court or a jury. The Bargers claim that Clary represented the documents as being "for insurance purposes," when, in fact, one of the documents was an arbitration agreement, which Larry never knowingly signed as an arbitration agreement. Therefore, we treat the Bargers' claim of fraud in the inducement as a claim of fraud in the factum. The critical issue is whether the Bargers presented substantial evidence to support a claim of fraud in the factum. *461 Fraud in the factum is a traditional fraud. A claim of fraud, including such fraud as fraud in the factum, requires the party making the claim to prove by substantial evidence that he or she reasonably relied on the alleged misrepresentation. Foremost Ins. Co. v. Parham, 693 So. 2d 409 (Ala.1997). This Court explained reasonable reliance in Torres v. State Farm Fire & Cas. Co., 438 So. 2d 757 (Ala.1983): 438 So. 2d at 759. Any falsity of Edmondson and Clary's alleged misrepresentation that the document was "for insurance purposes" is apparent on the face of the document itself. The document signed by Larry Barger is headed by the title "ARBITRATION AGREEMENT." Larry Barger did not state in his affidavit that he cannot read or that Clary prevented him from reading the documents he signed. Thus, Larry's reliance on the representation of Clary was not reasonable inasmuch as Larry would have had to have closed his eyes to the truth to believe that the document was not an arbitration agreement. Moreover, the representation that the document was for insurance purposes does not exclude the interpretation that Oakwood did need the arbitration agreement to maintain its insurance coverage and rates for its business operations relating to the sale and delivery of the mobile home. Accordingly, the Bargers' claim of fraud in the inducement, better characterized as fraud in the factum, is not meritorious. Therefore, the trial court erred in denying Oakwood's motion to compel arbitration of the Bargers' claims. The order of the trial court is reversed and this cause remanded to the trial court for entry of an order consistent with this opinion. REVERSED AND REMANDED WITH INSTRUCTIONS. MADDOX, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. HOOPER, C.J., and HOUSTON, J., concur in the result.

June 9, 2000

ef4ff225-9d8e-479d-bdd7-0eab5fc12667

Ex Parte Bozeman

781 So. 2d 165

1971759

Alabama

Alabama Supreme Court

781 So. 2d 165 (2000) Ex parte Michael Herman BOZEMAN. (In re Michael Herman Bozeman a/k/a Sonny Bozeman v. State of Alabama). 1971759. Supreme Court of Alabama. April 21, 2000. Rehearing Denied June 30, 2000. Mark John Christensen, Andalusia, for petitioner. Bill Pryor, atty. gen., and Norbert H. Williams, asst. atty. gen., for respondent. *166 PER CURIAM. Michael Herman Bozeman was convicted in the Covington Circuit Court for two counts of discharging a firearm into an occupied dwelling, two counts of discharging a firearm into an unoccupied vehicle, and one count of discharging a firearm into an unoccupied dwelling. Bozeman argued that the State tried him on these charges in violation of art. IV(e)the "anti-shuttling" provisionof the Interstate Agreement on Detainers ("IAD"). The trial court rejected Bozeman's argument, and denied his motion to dismiss. The Court of Criminal Appeals, on May 8, 1998, affirmed Bozeman's convictions, by an unpublished memorandum, holding that the State's technical violation of the IAD did not require the dismissal of the charges against Bozeman. Bozeman v. State (No. CR-96-1611), 738 So. 2d 934 (Ala.Crim. App.1998) (table). On certiorari review, we reverse and remand. Michael Herman Bozeman was arrested on June 15, 1995, on federal charges of intimidating a witness to a shooting incident that had occurred in Opp, Alabama. No other action was ever taken on these charges, but an incident report was filed with the Opp Police Department. On June 16, Bozeman was taken into federal custody on federal drug charges unrelated to the shooting incident. On November 3, Bozeman pleaded guilty to the federal drug charges and was sentenced by the United States District Court for the Middle District of Alabama. Meanwhile, in September 1995, the Grand Jury of Covington County had indicted Bozeman for possession of a controlled substance. On November 8, Bozeman was transferred from federal custody to Covington County to allow the State to pursue the possession charges (case CC-95-350). He was appointed counsel, was arraigned, and was then returned to federal custody. The possession charges (case CC-95-350) were nol-prossed in June 1996. In September 1996, Bozeman was indicted on state charges (case CC-97-16) stemming from the June 1995 shooting incident. Following the indictment on the state shooting charges, Covington County placed a detainer on Bozeman, and he was again transferred from federal custody to Covington County on January 23, 1997. Counsel was appointed for Bozeman, and he was arraigned on the state shooting charges.[1] On January 24, Bozeman was transferred back to federal custody; that transfer prompted his counsel to file a motion to dismiss, claiming that the transfer violated the IAD.[2] In February, the shooting case (case CC-97-16) went to trial in the Covington Circuit Court, and a jury returned a guilty verdict on each of the five counts relating to the shooting. The trial court held a posttrial hearing to consider Bozeman's motion to dismiss the *167 indictment pursuant to the IAD. On May 16, the trial court denied Bozeman's motion to dismiss, and on May 21 it denied his subsequent motion for a new trial. Bozeman appealed, and the Court of Criminal Appeals affirmed. This Court granted Bozeman's petition for the writ of certiorari to consider whether a technical violation of the IAD warranted the dismissal of the state shooting charges against Bozeman (case CC-97-16).[3] Bozeman argues that under the plain meaning of the IAD, his transfers in November 1995 and January 1997 both required the dismissal of the shooting charges with prejudice. Article IV of the IAD, which was codified at § 15-9-81, provides: Bozeman argues that because he was transferred from federal custody to state custody to allow the State to pursue the possession case (case CC-95-350) and back to federal custody in November 1995, without being prosecuted in the shooting case (case CC-97-16), the charges in that case should be dismissed with prejudice on the basis that a prosecution on those charges would violate the IAD. However, at the time of Bozeman's November 1995 transfer, nothing more than an incident report had been filed with respect to the shooting charges. Thus, because no indictment, information,[5] or complaint had been filed with respect to the shooting case at the time of the November 1995 transfer, under the IAD the November 1995 transfer does not require the dismissal of the shooting charges. Bozeman also argues that because he was transferred back to federal custody after his January 1997 transfer to state custody for arraignment in the shooting case (case CC-97-16) without being prosecuted in that case, the charges stated in the shooting case should have been dismissed with prejudice as violating the IAD. The Court of Criminal Appeals affirmed the trial court's refusal to dismiss, stating in its unpublished memorandum that, despite a technical violation of the *168 IAD, the statute should not be interpreted so narrowly as to defeat its purpose. The State does not dispute that a technical violation of the IAD occurred and does not argue that Bozeman's recitation of this Court's rules of statutory construction is incorrect. Instead, the State asserts that the IAD is federal law that is subject to federal construction. The State cites an opinion of the Supreme Court of the United States stating that "[t]he [IAD] is a congressionally sanctioned interstate compact within the Compact Clause, U.S. Const., Art. I, § 10, cl. 3, and thus is a federal law subject to federal construction." Carchman v. Nash, 473 U.S. 716, 719, 105 S. Ct. 3401, 87 L. Ed. 2d 516 (1985). Moreover, the Supreme Court has held that "because the [IAD] is an interstate compact approved by Congress ... [it] is... a federal law subject to federal rather than state construction." Cuyler v. Adams, 449 U.S. 433, 438, 101 S. Ct. 703, 66 L. Ed. 2d 641 (1981). See, also, New York v. Hill, 528 U.S. 110, 120 S. Ct. 659, 145 L. Ed. 2d 560 (2000). If the United States Supreme Court had already ruled on this issue, or if all federal circuits were in agreement on this issue, we would accept the State's view. However, because the United States Supreme Court has not ruled on how the detainer statute should be interpreted, and in light of the split of authority among the courts of appeals for the various federal circuits, this Court is free to select the interpretation it considers most sound. See Hagler v. Ford Motor Credit Co., 381 So. 2d 80, 82 (Ala.Civ. App.1980) (where federal courts are split on an issue and the United States Supreme Court is silent on that issue, state courts may select the view they consider the more logical one). The conflict between the circuits was recognized by Justice White in his dissent from the order denying certiorari review in Taylor v. United States, 504 U.S. 991, 112 S. Ct. 2982, 119 L. Ed. 2d 599 (1992). In a plea to the Court to settle this dispute among the circuits, Justice White stated: 504 U.S. at 991, 112 S. Ct. 2982. We find persuasive the rationale set forth by the United States District Court for the Eastern District of Pennsylvania in United States v. Sorrell, 413 F. Supp. 138 (E.D.Pa.1976), aff'd, 562 F.2d 227 (3d Cir. 1977), cert. denied, 436 U.S. 949, 98 S. Ct. 2858, 56 L. Ed. 2d 793 (1978). The district court, interpreting the same provision of the IAD, stated: 413 F. Supp. at 141. (Emphasis added.) Likewise, the Alabama Legislature could have stepped beyond the confines of the text of the compact and included limitations in the statute expressly allowing "technical" violations to occur. However, it, like Congress, did not do so. This Court will not interject its interpretation of what the Legislature should have done. The IAD is not ambiguous. It would require a tortured reading of the statute for us to conclude, as the State suggests, that a brief violation of the IAD can be ignored. Our conclusion in this regard is consistent with the purpose of the Act to protect a prisoner's constitutional right to a fair and speedy trial. We recognize that some federal courts have ignored the plain meaning of the IAD,[6] but, for the reasons cited above, we are under no obligation to follow the interpretation applied by those courts. Bozeman argues correctly that the Court of Criminal Appeals' decision violated a fundamental rule of statutory construction as stated by this Court in IMED Corp. v. Systems Engineering Associates Corp., 602 So. 2d 344 (Ala.1992): Id. at 346 (citing Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa County, 589 So. 2d 687 (Ala.1991)). Bozeman was indicted on the state shooting charges on September 20, 1996; therefore an "untried indictment" was pending against Bozeman when he was returned to state authorities on January 23, 1997. He was returned to federal authorities without being tried by the State for the offenses of which he was subsequently convicted. Therefore, in accordance with the plain language of § 15-9-81 (art. IV(e) of the IAD),[7] the shooting charges against Bozeman should have been dismissed with prejudice. The trial court erred by denying Bozeman's motion to dismiss, and the Court of Criminal Appeals erred by affirming his convictions. The judgment of the Court of Criminal Appeals is reversed and the case is remanded. REVERSED AND REMANDED. HOUSTON, COOK, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. HOOPER, C.J., and MADDOX and SEE, JJ., dissent. *170 BROWN, J., recuses herself.[*] SEE, Justice (dissenting). I dissent from the reversal of the judgment of the Court of Criminal Appeals that affirmed Bozeman's convictions. I do not believe the State's technical violation of the IAD required the dismissal of the charges against Bozeman. The Supreme Court of the United States has stated that "[t]he [IAD] is a congressionally sanctioned interstate compact within the Compact Clause, U.S. Const., Art. I, § 10, cl. 3, and thus is a federal law subject to federal construction." Carchman v. Nash, 473 U.S. 716, 719, 105 S. Ct. 3401, 87 L. Ed. 2d 516 (1985); see Cuyler v. Adams, 449 U.S. 433, 438, 101 S. Ct. 703, 66 L. Ed. 2d 641 (1981) ("[B]ecause the [IAD] is an interstate compact approved by Congress... [it] is ... a federal law subject to federal rather than state construction."); Reed v. Farley, 512 U.S. 339, 347, 114 S. Ct. 2291, 129 L. Ed. 2d 277 (1994) (recognizing that "`congressional consent transforms an interstate compact ... into a law of the United States'" (quoting Cuyler v. Adams, 449 U.S. at 438, 101 S.Ct. 703)). Thus, this Court is bound to follow federal precedent interpreting the IAD. In Sassoon v. Stynchombe, 654 F.2d 371 (5th Cir.1981),[8] the former Fifth Circuit considered whether a technical violation of Article IV(e) of the IAD required habeas corpus relief from the federal prisoner's conviction of state charges in Georgia. The federal prisoner was transferred to a state jail for five days, was arraigned on state charges, and was returned to the federal prison, without Georgia's having resolved the pending charges against him. He was later transferred back to state facilities, was tried, and was convicted of the state charges. The former Fifth Circuit recognized that Article IV(e) of the IAD had in fact been violated when the prisoner was transferred back to the federal prison without a resolution of the pending state charges, but it stated that the prisoner's "release [was] not justified where no `legitimate interest' of the prisoner [was] defeated by the violation." Id. at 374. The court noted that "`a primary purpose of the [IAD] is to protect prisoners against whom detainers are outstanding[,]'... [and that] [n]o protection is necessary where no injury is threatened." Sassoon, 654 F.2d at 374 (quoting Cuyler, 449 U.S. at 449, 101 S.Ct. 703). The court denied the writ of habeas corpus, stating: Id. at 375 (quoting State v. Sassoon, 240 Ga. 745, 749, 242 S.E.2d 121, 123 (1978)). Bozeman was transferred in January 1997 from a federal penitentiary to state custody for one day. He was arraigned on the state shooting charges (case CC-97-16) and was returned to the federal penitentiary until his trial. Although Bozeman asserts that no evidence in the record indicates that his transfer back to the federal penitentiary enabled him to participate in any rehabilitation program, the record shows that he acknowledged the existence of such rehabilitation before the trial court denied his motion to dismiss. Renewal of Defendant's Motion to Dismiss at 2. Bozeman does not argue on appeal that he was prejudiced by the transfer back to federal custody before his trial.[9] Accordingly, because Bozeman was not prejudiced by the State's technical violation of the IAD and because the violation permitted Bozeman to participate in federal rehabilitation programs, "no `legitimate interest' of [Bozeman] [was] defeated by the violation [of Article IV(e) of the IAD]." Sassoon, 654 F.2d at 374. Therefore, based on the reasoning of the former Fifth Circuit in Sassoon, 654 F.2d 371, I conclude that the Court of Criminal Appeals properly affirmed the trial court's denial of Bozeman's motion to dismiss.[10] Despite the State's technical violation of Article IV(e) of the IAD, federal interpretation of the IAD, which this Court is bound to follow, dictates that where the violation does not defeat a legitimate interest of the prisoner and where the violation permits the prisoner to participate in a rehabilitation program, the IAD does not require the dismissal of the charges against the prisoner. Accordingly, the trial court properly denied Bozeman's motion to dismiss. HOOPER, C.J., concurs. [1] The trial court granted Bozeman's newly appointed counsel leave to raise any issues that would normally be addressed before an arraignment. [2] The IAD, also known as the Uniform Mandatory Disposition of Detainers Act ("UMDDA"), is codified in Ala.Code 1975, § 15-9-81. The IAD is a contract among the states, the United States, and the District of Columbia. "The [IAD] attempts to remedy the disadvantages and hardships imposed upon prisoners attendant to the use of detainers and to eliminate potential abuses of the detainer system.... The [IAD] provides the prisoner with a method of clearing detainers lodged against him. It further provides cooperative proceedings for temporary transfers of prisoners for purposes of trial on outstanding charges among the participating jurisdictions to aid such disposition." Gillard v. State, 486 So. 2d 1323, 1325 (Ala. Crim.App.1986) (citing United States v. Dixon, 592 F.2d 329 (6th Cir.), cert. denied, 441 U.S. 951, 99 S. Ct. 2179, 60 L. Ed. 2d 1056 (1979)). [3] As we discuss later, a "technical violation" of the IAD is one that does not defeat a legitimate interest of the prisoner, for example, an interest in receiving rehabilitation services. [4] Article V(e) requires that the prisoner be returned to the sending state "[a]t the earliest practicable time consonant with the purposes of [the IAD]." [5] "An information is a written statement charging the defendant or defendants named therein with the commission of an indictable offense, made on oath, signed, and presented to the court by the district attorney, pursuant to Rule 2.2(e), without action by the grand jury." Rule 13.1(b), Ala. R.Crim. P. [6] See, e.g., Sassoon v. Stynchombe, 654 F.2d 371 (5th Cir.1981). [7] "If trial is not had on any indictment ... prior to the prisoner's being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment ... shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice." Ala.Code 1975, § 15-9-81 (Art. IV(e) of the IAD). [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case. [8] Sassoon was decided on August 28, 1981. See 654 F.2d 371. In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981), the United States Court of Appeals for the Eleventh Circuit held that "the decisions of the United States Court of Appeals for the Fifth Circuit ... as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit." Thus, Sassoon is binding precedent in this case. [9] After Bozeman's motion to dismiss was denied, he did assert in a motion to the trial court that "the State's violation of the [IAD] prevented [him] from having adequate opportunity to consult with his Court-appointed attorney prior to the trial of [his] case." Motion for Judgment Notwithstanding the Verdict or in the Alternative for New Trial at 1. However, the record contains no evidence to support this assertion. [10] This conclusion is in accord with a majority of federal circuits that have addressed this issue. See United States v. Taylor, 173 F.3d 538, 541-42 (6th Cir.1999) ("Numerous circuit courts have held that such quick, temporary transfers do not violate the IAD. See Taylor v. United States, 504 U.S. 991, 112 S. Ct. 2982, 119 L. Ed. 2d 599 (1992) (White, J., dissenting from denial of certiorari) (listing cases from [the] First, Second, Fifth (Unit B 1981), Seventh, and Ninth Circuits)."); United States v. Daniels, 3 F.3d 25, 27 (1st Cir. 1993) ("[W]e have heldas have several other circuitsthat a brief interruption in state prison confinement for purposes of arraignment, where the prisoner is returned to state custody the same day, does not violate the IAD.") (listing cases from the First, Second, Seventh, Eighth, and Ninth Circuits).

April 21, 2000

9edafd02-2dbd-40ad-bdba-4962f7937d9b

Williams v. BIC CORP.

771 So. 2d 441

1981068

Alabama

Alabama Supreme Court

771 So. 2d 441 (2000) Frankie WILLIAMS, as legal guardian of Antrinique Cunningham v. BIC CORPORATION. 1981068. Supreme Court of Alabama. May 5, 2000. *442 J. Gusty Yearout, William P. Traylor III, and Deborah S. Braden of Yearout, Myers & Traylor, P.C., Birmingham, for appellant. William W. Lawrence of Wooten, Thorton, Carpenter, O'Brien, Lazenby & Lawrence, Talladega; and David P. Whiteside, Jr., Birmingham, for appellee. LYONS, Justice. Frankie Williams, as guardian of Antrinique Cunningham, a minor, is the plaintiff in an action against BIC Corporation. The jury returned a verdict for the defendant, and the trial court entered a judgment on that verdict. Williams appeals from the trial court's order denying her motion for a judgment as a matter of law or for a new trial based on what she alleges was an erroneous jury charge. On November 15, 1991, Constance Cunningham and her three children, her sons Mark and Dontavious and her daughter Antrinique, occupied Cunningham's bedroom at her apartment. According to Mrs. Cunningham's best friend and next-door neighbor, Cassandra Formby, on the previous evening Cunningham and Formby had gone to the Oak Tree Lounge around 11:45 p.m. and had continuously drunk alcoholic beverages until they returned to their apartments at 3:45 a.m.; then they had talked for a while, she said, before each returned to her separate apartment. Cunningham testified that she went into her living room, because her back was hurting, leaving the sleeping children in the bedroom. Cunningham then fell asleep in the living room. Cunningham testified that some time later five-year-old Mark awakened her because three-year-old Dontavious had started a fire in the bedroom; she said he had started the fire by using a disposable lighter he had found on Cunningham's dresser; and she said the lighter had been manufactured by the defendant BIC Corporation. Dontavious testified in his deposition that Cunningham went into the bedroom when *443 she heard Antrinique crying. When Cunningham entered the bedroom, she said, she found two-year-old Antrinique on the bed, engulfed in flames. Cunningham said she pulled her off the bed and ran out of the apartment. Antrinique was severely burned in the fire and, since the fire, has had numerous surgeries and skin grafts. On November 15, 1993, Cunningham, as mother and next friend of Antrinique Cunningham, a minor, filed a lawsuit in the Talladega County Circuit Court against BIC Corporation.[1] She alleged that BIC had negligently and/or wantonly designed, manufactured, distributed, and sold the disposable lighter; that BIC had failed to warn of the dangers associated with use of the disposable lighter; that BIC had breached express and implied warranties; and that BIC was liable under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"). In May 1995, Frankie Williams, Antrinique's maternal grandmother, was substituted as plaintiff because she had been appointed legal guardian of Antrinique. The case proceeded to trial, and on December 8, 1998, the jury returned a verdict for BIC. The trial court entered a judgment on the verdict. Attorneys for Williams prepared for her a motion for a new trial and, on January 7, 1999, sent a copy of that postjudgment motion to Betty Love, an attorney in Talladega. According to her affidavit, Love was not involved as counsel in this case but merely agreed to file the plaintiff's postjudgment motion after a copy of it was faxed to her office. In an affidavit, Love explained that Williams's attorneys sent the fax copy of the postjudgment motion to her office on January 7, 1999. She says that she then walked to the Talladega County circuit clerk's office and filed a copy of the motion the same day. The record does not contain a copy of the motion stamped January 7, 1999, however. The case action summary sheet indicates that the clerk's office received a copy of the motion by fax on January 7. Williams has submitted affidavit testimony from the circuit clerk stating that the clerk's office could not have received a copy of the motion by fax because that office does not have and never has had a facsimile machine. On January 7, 1999, the clerk's office apparently received a hand-delivered copy of the motion that Williams's attorneys had sent by fax to Love. On January 8, 1999, the clerk's office received the original motion in the mail and stamped it filed that same day. On February 24, 1999, Williams amended her postjudgment motion. On March 3, 1999, BIC filed a motion to strike Williams's motion as untimely filed, relying on Ex parte Tuck, 622 So. 2d 929 (Ala. 1993), which held that Alabama courts would not accept filings by facsimile transmission. After conducting a hearing, the trial court denied Williams's motion, stating in its order that the motion had not been timely filed. (Rule 59(b), Ala. R. Civ. P., allowed 30 days for the filing of that motion.) The court also stated in its order that if the motion had been timely filed the court would have denied it on the merits. Williams appealed. Williams argues that the trial court erred in denying her postjudgment motion on the basis that it was untimely filed. She maintains that the copy of the motion that the clerk's office received on January 7, 1999, was a sufficient filing and was timely. Williams argues that Ex parte Tuck, on which BIC relies, does not support the trial court's conclusion that her motion was untimely filed. We agree. *444 The facts of this case are distinguishable from those of Ex parte Tuck. In Tuck, the defendant Herbert D. McKay sent a copy of a notice of appeal by fax to the Talladega County courthouse. The Court of Civil Appeals held that McKay's notice of appeal, transmitted by fax within 14 days, satisfied the requirement of § 12-12-70(a), Ala.Code 1975, that an appeal from the district court to the circuit court be filed within 14 days. McKay v. Tuck, 622 So. 2d 926, 928 (Ala.Civ.App.1992). However, Judge Robertson pointed out in his special writing that, because there was no facsimile machine in the circuit clerk's office, McKay's attorney sent a copy of the notice of appeal and security for costs by fax to another office in the Talladega County courthouse, with a cover sheet asking the recipient to take the document to the circuit clerk's office. 622 So. 2d at 928 (Robertson, P.J., concurring in the result). McKay advised the circuit clerk's office that he was mailing the original motion the same day. Id. at 927. This Court reversed the Court of Civil Appeals' holding that a faxed copy of a notice of appeal would be accepted as a properly filed notice of appeal, but it held that McKay's facsimile filing would be considered as timely, but for purposes of that particular appeal only. Ex parte Tuck, 622 So. 2d at 930. The Court ruled that after July 31, 1993, it would not recognize facsimile filings except as they might be specifically authorized by rule or statute. Id. Citing Ex parte Tuck, BIC contends that the trial court correctly held that Williams's motion was not timely filed, relying on the contention that she transmitted the motion to the court by fax. BIC maintains that the court received Williams's actual motion 31 days after the trial court had entered its judgment on the jury's verdict, one day beyond the 30 days allowed under Rule 59(b), Ala. R. Civ. P. The Supreme Court of Tennessee also has refused to accept filings by facsimile transmission. In Love v. College Level Assessment Servs., Inc., 928 S.W.2d 36 (Tenn.1996), that court examined several factors in determining that a facsimile transmission of a notice of appeal is not sufficient to constitute a filing. Scarlett Love sued Nursing Careers and College Level Assessment Services, Inc. ("the assessment program"), seeking, among other things, rescission of a contract between her and the assessment program. Id. at 37. The trial court entered a judgment for Love. Id. On the last day allowed for an appeal, the assessment program sent the trial court a copy of a notice of appeal, by fax. Id. Love filed a motion to dismiss the assessment program's appeal, arguing that the assessment program did not file a notice of appeal with the trial court during the statutorily required period. Id. Apparently the trial court clerk had assured the assessment program that the faxed copy of the notice of appeal would be treated as an original. Nevertheless, the trial court denied Love's motion to dismiss the appeal. Id. In determining that the facsimile transmission of the notice of appeal was not sufficient to perfect an appeal, the Supreme Court of Tennessee reasoned that counsel should refrain from using facsimile transmissions for filing court documents until uniform rules and procedures had been established to govern the use of facsimile transmissions. Id. at 38-39. The court agreed with Love's arguments that facsimile filing should not be allowed in the absence of a specific rule. Id. at 38. The court listed a number of reasons for not accepting filings by fax. Id. First, the court stated that Love was correct in stating that "timely perfecting of an appeal is no mere technical formality." Id. Second, the court noted that, although facsimile transmission is a common, reliable method of transmitting information, a number of problems could arise if the courts allowed facsimile filings. Id. For example, the court questioned whether a facsimile transmitted after the normal closing time of the clerk's office should be deemed as *445 filed that day or as filed the next day. Id. The court also noted that problems could arise when the facsimile machine had mechanical difficulties and it questioned whether the transmitting party should be required to present a transmittal sheet, whether the clerk's office should charge a transmittal fee, and whether a party should be allowed to file by fax a document that requires a filing fee. Id. While the Supreme Court of Tennessee raised legitimate questions about facsimile filing that could pose problems, none of those problems is an issue in this case. Williams filed a postjudgment motion, not a notice of appeal. Most important, Williams did not send the motion to the Talladega County circuit clerk's office or some other office in the courthouse by facsimile. Her attorney sent a copy of her postjudgment motion to a Talladega attorney, who hand-delivered a paper copy of the motion to the circuit clerk's office. Therefore, questions regarding mechanical difficulties, a transmittal sheet, and the business hours of the clerk's office are irrelevant in this situation. In addition, a postjudgment motion does not require a filing fee, unlike a notice of appeal. It is undisputed that Williams did not send a copy of her motion to the Talladega County circuit clerk's office by facsimile transmission, but, instead, had a local attorney physically deliver and file a paper copy of it. The filing of that paper copy on January 7, 1999, was timely. The trial court denied Williams's postjudgment motion on a conclusion that it had not been timely filed, but it also indicated that it would have denied the motion on the merits. Because we reverse the holding that the motion was untimely, we must address the merits. We will consider the motion as if it had in fact been denied on the merits. Williams argues that the trial court's instructions to the jury erroneously permitted negligence on the part of the parent to be imputed to the child. BIC responds by contending that the trial court erred in failing to grant it a directed verdict (now known as a judgment as a matter of law; see Rule 50, Ala. R. Civ. P.) and, therefore, that this Court should not reach the issue whether the jury instruction was erroneous. BIC contends that Williams failed to show by substantial evidence that a lighter was involved in the fire; that, if a lighter was involved, the lighter was a BIC lighter; and that there had been an alternative design available for the lighter that would have prevented the fire. BIC next contends that the instruction at issue did not deal with contributory negligence but, instead, related to matters of foreseeability and proximate cause. Williams counters by arguing that, because BIC did not cross-appeal, it is precluded from attacking on appeal the trial court's denial of its motion for a directed verdict. We have allowed a party seeking to uphold a summary judgment to argue in support of the judgment grounds that the trial court did not rely upon, even though that party had not filed a cross-appeal. Machen v. Childersburg Bancorporation, Inc., 761 So. 2d 981 (Ala.1999); McMillan, Ltd. v. Warrior Drilling & Eng'g Co., 512 So. 2d 14 (Ala.1986). A similar rule should apply when a defendant prevails at trial and on appeal argues that the trial court improperly denied it a directed verdict. Rizal Commercial Banking Corp. v. Putnam, 429 F.2d 1112, 1115 (9th Cir.1970), citing Jaffke v. Dunham, 352 U.S. 280, 281, 77 S. Ct. 307, 1 L. Ed. 2d 314 (1957). Consequently, BIC, having moved for a directed verdict in the trial court, is not precluded on appeal from asserting insufficiency of the evidence as a basis for upholding the jury verdict in its favor. BIC contends that the trial court erred in denying its motion for a directed verdicti.e., a preverdict judgment as a *446 matter of law (see Rule 50(a), Ala. R. Civ. P.). When reviewing a ruling on a motion for a judgment as a matter of law, this Court uses the same standard the trial court initially used in granting or denying the motion. Palm Harbor Homes, Inc. v. Crawford, 689 So. 2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented substantial evidence to allow the factual issue to be submitted to the jury for resolution. Carter v. Henderson, 598 So. 2d 1350 (Ala.1992). See also § 12-21-12, Ala. Code 1975, and West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). A motion for a judgment as a matter of law "is properly denied where there exists any conflict in the evidence for consideration by the jury." Cloverleaf Plaza, Inc. v. Cooper & Co., 565 So. 2d 1147, 1149 (Ala.1990). "In reviewing a ruling on a motion for a [judgment as a matter of law], this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences from that evidence as the jury would have been free to draw." Daniels v. East Alabama Paving, Inc., 740 So. 2d 1033, 1037 (Ala.1999). BIC argues that the evidence concerning the instrumentality that caused the fire was extremely confusing. Cassandra Formby, Cunningham's next-door neighbor, was the first person to view the scene after the fire. She said she saw a burned box of matches, aerosol cans,[2] and lighters in Cunningham's bedroom. Cunningham testified that she had no idea how the fire started, although she had told the medical team at the hospital that the fire was caused by matches. Franklin Williams, Cunningham's brother, was living with her at the time of the fire. He testified that he had no idea what had caused the fire but that he was told by Cunningham or Mrs. Williams that the fire was caused by an exploding aerosol can. Franklin Williams also said that, on the day of the fire, he had left a lighter on the dresser in Cunningham's bedroom. Dontavious's deposition was read at the trial; when asked in his deposition how the fire had started, Dontavious replied, "I had a cigarette lighter." Then, when asked what he was doing with the lighter, he stated, "I was lighting the curtains." Dontavious, who was three years old at the time of the fire, was not asked about use of an aerosol can at the time of the fire. We conclude that the record, while it is in conflict regarding the presence of a lighter, was sufficient to justify the trial court's rejection of BIC's argument that it was entitled to a directed verdict on the ground that the evidence was insufficient for the factfinder to determine that a lighter had caused the fire. BIC also argues that the evidence was insufficient to support a finding that a BIC lighter was involved. The only witnesses who testified at trial with certainty as to the presence of BIC lighters at the scene were Cunningham and Franklin Williams. Franklin Williams testified at trial that he generally bought BIC lighters, and at a later point in his testimony he stated that he bought only BIC lighters. Throughout the case and until three weeks before trial, some seven years after the accident, Franklin Williams's deposition testimony and Cunningham's deposition testimony were rather specific as to the color of the BIC lighter they said was present on the occasion of the fire. Franklin Williams testified by deposition that he had had only one lighter; that it was a black BIC lighter; and that he had left it on Cunningham's dresser on the morning of the fire. Cunningham testified by deposition that there was only one black BIC lighter in the house, saying "it was the only lighter we had." Three *447 weeks before the trial, in response to a request for admissions, Williams, as guardian, asserted that the lighter that caused the fire was a black or blue BIC lighter. The state fire marshal's report plainly stated that a "yellow/orange ... refillable lighter" had been recovered from the fire scene. While the lighter had been in the possession of the fire marshal at the time of the fire marshal's investigation, its whereabouts were unknown by the time the action was commenced two years later. At trial, the investigating officer for the Talladega Fire Department testified that he found a yellow lighter that was similar to a BIC lighter or a brand of another manufacturer, but he could not say it was a BIC lighter, merely stating that it was similar to a BIC lighter. When asked to identify a BIC lighter from a group of lighters, he selected a lighter manufactured by another company. Fire department officials testified that firefighters found either a red or a yellow lighter at the fire scene. Cunningham and Franklin Williams testified that they had brought numerous lighters of various colors to the apartment in the months before the fire. Formby, the next-door neighbor, testified that she saw lighters of various colors, including yellow, black, and red, at the fire scene, but she never identified the lighters as BIC lighters. Hence, according to Formby's testimony, there were lighters other than a single black lighter at the fire scene. BIC points out that the testimony of Mr. Williams and Cunningham is the only evidence that links its lighters to the scene; that that evidence is inherently unreliable, by reason of the fact that those witnesses changed their testimony from that given in their depositions; and, therefore, that the trial court should have directed a verdict in its favor. We cannot say that the change in the witnesses' testimony regarding the color of the lighter is so critical as to authorize a directed verdict based on an analogy to the trial court's authority to enter a summary judgment even though there exists an apparent genuine issue of material fact, if that issue is created by a witness's affidavit that contradicts, without explanation, that witness's deposition. See Couch v. Woody Anderson Ford, Inc., 558 So. 2d 888 (Ala.1989). Formby's testimony that at the fire scene she saw lighters of various colors, when coupled with Franklin Williams's testimony that he bought lighters of several colors in the months preceding the fire and that he bought only BIC lighters, constitutes evidence upon which the jury could have concluded that a BIC lighter was involved; the jury could have concluded this independently of the contradicted portion of the depositions of Franklin Williams and Cunningham dealing with the color of the lighter. The jury could have concluded that Dontavious started the fire with a BIC lighter other than the black BIC lighter on the dresser. The trial court properly rejected BIC's argument that it was entitled to a directed verdict on the ground that the plaintiff had failed to present substantial evidence indicating that a BIC lighter had been involved in the fire. BIC's final ground offered in support of its motion for a directed verdict is that the evidence was insufficient to show that an enhanced child-resistant feature on BIC lighters would have prevented this incident. When moving for a directed verdict in the trial court, BIC stated: This Court considered the liability of a manufacturer of cigarette lighters in Bean v. BIC Corp., 597 So. 2d 1350 (Ala.1992) (BIC I), where this Court reversed a summary judgment in favor of the manufacturer because (1) the evidence created a genuine issue of material fact as to whether the manufacturer had a duty to offer the public a child-resistant lighter; (2) the evidence *448 created a genuine issue of material fact as to whether the danger posed by the lighter was open and obvious; and (3) the evidence created a genuine issue of material fact as to whether the warnings on the lighter and its packaging were adequate. The same parties returned in BIC Corp. v. Bean, 669 So. 2d 840 (Ala.1995) (BIC II), after a trial and the entry of a judgment in favor of the plaintiff. In BIC I, this Court described the scope of a manufacturer's legal duty as being dependent upon two factors: "(1) the foreseeability of the danger; and (2) the feasibility of an alternative design that averts that danger." Id. at 1352. (Emphasis added.) See also Townsend v. General Motors Corp., 642 So. 2d 411, 418 (Ala.1994), where this Court stated that, under the Alabama Extended Manufacturer's Liability Doctrine, the "plaintiff must prove that a safer, practical, alternative design was available to the manufacturer ... that ... would have ... eliminated or in some way reduced" the plaintiff's injuries. BIC first began manufacturing lighters with child-resistant features in 1991 or 1992. According to the testimony of BIC's experts, teaching a child to use a lighter through instruction, as opposed to the child's learning through nonverbal demonstration or observation, presents significant problems in designing and developing more child-resistant lighters. Once a child is taught to "roll and press" so as to ignite the lighter, the operation of BIC model 7 with an enhanced child-resistant feature becomes relatively simple, for it requires only that the user engage a latch before beginning the roll-and-press ignition step. In other words, the roll-and-press ignition step is the more difficult function to master and, once that step is learned through instruction, the engagement of the latch, a comparatively simple step that requires no special timing or coordination, enables the user to ignite the lighter. BIC contends that its evidence indicated that a child-resistant feature is ineffective once a child has been taught to ignite a roll-and-press lighter, and that that evidence was never rebutted. BIC, relying upon BIC I, contends that the record contains no substantial evidence indicating that the alternative design would have prevented the incident involved in this case such evidence, BIC says, is an essential factor on which a manufacturer's duty is dependent. However, Dontavious denied that he had been taught to use a lighter. If the jury accepted his testimony, any inadequacy in the plaintiff's expert testimony, limited to the feasibility of a child-resistant lighter in the hands of a child who had not been taught to use a lighter, becomes immaterial. We conclude that the trial court properly rejected BIC's argument that it was entitled to a directed verdict on the basis that the plaintiffs evidence of the feasibility of an alternative design was insufficient. Williams argues that the trial court erred in charging the jury as follows: Citing Williams v. Woodman, 424 So. 2d 611, 613 (Ala.1982), Williams contends that this charge improperly permitted the jury to find in favor of BIC, notwithstanding that it may have found BIC to have been negligent, where a third party, and not the plaintiff, may also be guilty of negligence that contributes to cause the injury. Williams also maintains that this charge violates the rule that prevents the negligence of a parent from being imputed to the child. See Pilkington v. Peking Chinese Restaurant, 596 So. 2d 586, 589 (Ala. 1992); Nunn v. Whitworth, 545 So. 2d 766, 767 (Ala.1989); Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So. 2d 236, 249 (1975). *449 In BIC II, an action against BIC arising out of personal injury and death that occurred as a result of children's playing with a butane lighter, this Court wrote: 669 So. 2d at 845-46. (Some emphasis added.) While a determination of the validity of these charges and of BIC's closing argument was not before the court in BIC II, its direct holding as to the relevance of foreseeability and proximate cause to the issue of appropriate parental supervision is sound. That holding compels us to conclude that an instruction linking conduct of a parent to these issues is appropriate under the facts of this case. In Williamson v. Tyson Foods, Inc., 626 So. 2d 1261 (Ala.1993), this Court noted a distinction between the negligence of a parent in failing to supervise a child and the unforeseeability of such negligence. This Court stated: Id. at 1264. In Tyson Foods, this Court quoted with approval from Laser v. Wilson, 58 Md.App. 434, 473 A.2d 523 (1984), in which the Maryland Court of Special Appeals concluded: 626 So. 2d at 1265. While we acknowledge that Tyson Foods deals with premises liability, we would have to overrule BIC II in order to hold that foreseeability and proximate cause arising from failure of parental supervision have no bearing in a products-liability case. This we decline to do. The plaintiff tries to distinguish Tyson Foods by pointing to Looney v. Davis, 721 So. 2d 152 (Ala.1998), where a dentist's defense to a wrongful-death action based on the death of a patient following a tooth extraction was based on the contention that the seriousness of the physical injury was so unexpected as to constitute a defense even when the kind of injury itself was foreseeable. In Looney, this court rejected that argument and referred to Tyson Foods as illustrating a rule by which a defendant cannot be held liable when the kind of physical injury sustained by the plaintiff was itself unforeseeable. *450 Id. at 162. Here, as in Tyson Foods, a jury question was presented as to whether the kind of physical injury that occurred could have been foreseen, given the peculiar facts of the case. In his deposition, Franklin Williams testified that he had taught the children, all of whom were five years old or younger, to use a cigarette lighter to ignite fireworks and that he had allowed them to do so in his presence. At trial, however, he testified that he had never put a lighter in the boys' hands or showed them how to use one. He further testified that in the boys' presence he had used a lighter to light fireworks, cigarettes, and spray from aerosol cans. He also testified that the children had seen him using an aerosol can and a lighter to burn a trail of ants on the porch at the apartment, that he had done this in front of the children only once, and that he had had to use the lighter several times to kill all the ants. He stated that Cunningham had told him not to do that again in front of the children because, he said she told him, they got excited when he did it. He acknowledged that Mark and Dontavious "were bad about playing with lighters." Cunningham acknowledged that she had seen Franklin Williams using a lighter and an aerosol can to make a torch in front of the children and that Franklin had used a lighter to burn trash in a drum in front of the children. She also testified that Franklin had used a lighter to light fireworks in front of the children. In addition, Formby testified that on several occasions she had seen Mark and Dontavious light cigarettes. She testified that she and Cunningham had on several occasions asked the boys to light cigarettes for them by using the gas stove in the apartment and that the boys had also lit cigarettes by using a cigarette lighter. She stated that it was not a surprise to her that the children knew how to use a cigarette lighter. The facts before the jury, although in conflict in many instances, could permit a rationally functioning jury to conclude that a manufacturer should not reasonably foresee the occurrence of this kind of physical injury under such circumstances as we have described herein. The jury could have concluded that Cunningham returned at 3:45 a.m. from a bar after drinking for four hours and, after she returned, left three children, ages two, three, and five, asleep in an adjoining room in the apartment, an apartment in which were located numerous cigarette lighters and aerosol cans containing flammable materials, including several lighters and cans in the bedroom. The jury also could have found that at least two of these children had been trained by an adult to use cigarette lighters to light fireworks and cigarettes and that these children had at least witnessed, if they had not tried themselves, the use of a cigarette lighter to ignite the contents of an aerosol can so as to produce a torch. The jury also heard evidence indicating that the mother was aware of Dontavious's attraction to cigarette lighters, having seen him lighting one at age three, six months before the incident, and having indulged him in this fascination by having him light her cigarette and permitting Formby to have him light her cigarette, and that she had seen Franklin Williams playing with fire, including igniting the contents of an aerosol can in the presence of the children. Finally, the jury could have concluded that, while the mother slept heavily in the living room from the effects of alcohol, Dontavious, age three, awakened in the bedroom, where there were numerous lighters and aerosol cans within his reach, used one of them to set fire to the curtains, and thereby caused his two-year-old sister to be severely burned. Under these facts, the jury could have reasonably concluded that the adults supervising the children, including Cunningham, were aware of the potential danger and displayed an incredibly casual attitude toward the dangers of allowing small children to be entertained by fire. *451 Under these circumstances, we cannot say that as a matter of law BIC should have foreseen the conduct of the parent in this case; thus, we cannot hold the instruction on foreseeability inappropriate. The trial court was careful in recognizing a distinction between the impropriety of a charge on contributory negligence and the propriety of a instruction dealing with foreseeability and proximate cause. We hasten to add that an instruction on foreseeability is inappropriate when it constitutes merely a disguised means of authorizing a jury to deny recovery to a child because of negligence on the part of a parent. The determination whether a charge on foreseeability is appropriate must be based on the facts of the particular case. Where the evidence of the obviousness of the danger, coupled with the parent's egregious and systemic failure to supervise, is as compelling as it is in this case, an instruction on foreseeability does not constitute a disguised charge on contributory negligence. We therefore conclude that in this particular case it was appropriate to charge the jury that it is not foreseeable that a parent would fail to undertake basic precautions to safeguard her children from an obvious risk well known to the parent. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, and ENGLAND, JJ., concur. JOHNSTONE, J., concurs in Part II and concurs in the result in Part III. BROWN, J., concurs in the result. [1] She also sued BIC Societe, S.A.; Raceway, Inc., d/b/a Benny's Mini-Mart; Benny Green d/b/a/ Benny's Mini-Mart; and several fictitious defendants. The trial court dismissed BIC Societe, S.A., entered a summary judgment for Benny Green d/b/a/ Benny's Mini-Mart; and granted Cunningham's motion to voluntarily dismiss Raceway, Inc., d/b/a Benny's Mini-Mart. [2] As is discussed in more detail later, Franklin Williams, Dontavious's uncle, had ignited the outflow from aerosol cans in the presence of the children and Cunningham.

May 5, 2000

664b06e2-2efc-4362-838b-0bbdf1bc5a00

Ex Parte Courtaulds Fibers, Inc.

784 So. 2d 1036

1981706, 1981707

Alabama

Alabama Supreme Court

784 So. 2d 1036 (2000) Ex parte COURTAULDS FIBERS, INC. (Re James R. Evans, Sr. v. Courtaulds Fibers, Inc.) Ex parte Courtaulds Fibers, Inc. (Re Johnette Brown v. Courtaulds Fibers, Inc.) 1981706 and 1981707. Supreme Court of Alabama. May 5, 2000. Cooper C. Thurber and William E. Shreve, Jr., of Lyons, Pipes & Cook, P.C., Mobile, for petitioner. J. Gregory Evans of Cochran, Cherry, Givens, Smith & Peters, P.C., Mobile, for respondent James R. Evans, Sr. Jay A. York of Sherling, Browning & York, Mobile, for respondent Johnette Brown. LYONS, Justice. On December 20, 1993, James R. Evans, Sr., Johnette Brown, and 22 other plaintiffs filed a workers' compensation action, alleging that they had developed an occupational disease caused by exposure to chemicals while working for Courtaulds Fibers, Inc.[1] Courtaulds denied compensation, *1037 arguing that the plaintiffs' injuries were not job-related. The plaintiffs filed a motion to stay the workers' compensation proceedings pending the disposition of a third-party tort action that some of the plaintiffs had filed against Courtaulds PLC (an indirect parent company of Courtaulds), Akzo Chemical Company, and Survivair, Inc., in which they sought damages for the same injuries as those alleged in their workers' compensation action. The 1993 workers' compensation case was assigned to Judge Robert E.L. Key. Judge Key set the case for trial and continued it two or three times. Because of the number of plaintiffs, Judge Key ordered an initial trial of the claims of 7 of the 29 plaintiffsthree plaintiffs named by plaintiffs' counsel, three named by defense counsel, and one randomly selected by the court. Problems arose when (a) Judge Key declined to stay further proceedings pending the disposition of the plaintiffs' third-party tort action and (b) plaintiffs' counsel became dissatisfied with the quality of proof available as to the claims of one of the plaintiffs who had been designated for the first trial. Plaintiffs' counsel dealt with the latter issue by dismissing with prejudice the claims of those plaintiffs whose cases shared this deficiency in proof. Judge Key, having denied the plaintiffs' motion to stay, entered an order requiring plaintiffs' counsel to name an additional plaintiff for trial. At this stage of the proceedings, a voluntary dismissal without court approval was unavailable, because Courtaulds had served an answer. See Rule 41(a)(1)(i), Ala. R. Civ. P. Judge Key's subsequent dismissal order recites that the plaintiffs' counsel, after learning that his motion for a stay had been denied, stated in chambers that he would prefer to dismiss the entire action without prejudice rather than comply with Judge Key's outstanding order to identify an additional plaintiff for trial. Judge Key responded by allowing 30 days for plaintiffs' counsel to effectuate a voluntary dismissal. The plaintiffs neither named an additional plaintiff for trial nor dismissed the entire action without prejudice within the 30-day period; the trial court, sua sponte, dismissed the action. Judge Key's order of dismissal, dated May 18, 1995-10 days after the expiration of the 30-day period states: On May 22, 1995, four days after the trial court had entered its order of dismissal, plaintiffs' counsel filed a "voluntary *1038 motion to dismiss without prejudice." The trial court took no action on this motion. The plaintiffs did not appeal the trial court's order of dismissal. On April 7, 1998, Evans filed another workers' compensation action against Courtaulds, alleging the same injuries he had alleged in the 1993 action. The 1998 workers' compensation action was assigned to Judge Joseph Johnston. Courtaulds moved for a summary judgment, contending that Judge Key's dismissal of the 1993 action barred Evans's 1998 action, by the doctrine of res judicata. Judge Johnston entered a summary judgment for Courtaulds, concluding that the dismissal of the previous action was an involuntary dismissal with prejudice, pursuant to Rule 41(b), Ala. R. Civ. P., and thus constituted an adjudication on the merits, for purposes of the doctrine of res judicata. The Court of Civil Appeals reversed the summary judgment entered in favor of Courtaulds. It found that Judge Key had dismissed the 1993 action without prejudice; the Court of Civil Appeals stated that "it is just as likely that Judge Key dismissed the case pursuant to the oral motion of the plaintiffs' attorneys to voluntarily dismiss the case without prejudice." Evans v. Courtaulds Fibers, Inc., 784 So. 2d 1030, 1031 (Ala.Civ.App.1999). Judge Thompson dissented from the Court of Civil Appeals' majority opinion, stating: 784 So. 2d at 1033-34. On December 19, 1997, Brown filed another workers' compensation action against Courtaulds, alleging the same injuries she had alleged in the 1993 action. The 1997 workers' compensation action was assigned to Judge Joseph Johnston. Courtaulds moved for a summary judgment, contending that Brown's action was barred by the statute of limitations and by the doctrine of res judicata. Judge Johnston entered a summary judgment for Courtaulds, concluding that the dismissal of the previous action was an involuntary dismissal with prejudice, pursuant to Rule 41(b), Ala. R. Civ. P., and thus constituted an adjudication on the merits, for purposes of the doctrine of res judicata. Judge Johnston also concluded that Brown's action was barred by the statute of limitations because she filed the 1997 action more than two years after the termination of her employment with Courtaulds.[2] *1040 On April 30, 1999, the Court of Civil Appeals reversed the summary judgment as to Brown's claim for medical benefits, noting that there is no statute of limitations for accrued medical benefits.[3]Brown v. Courtaulds Fibers, Inc., 784 So. 2d 1034 (Ala.Civ.App.1999). However, the Court of Civil Appeals held that Brown's claim for accrued medical expenses was not barred by the doctrine of res judicata and that Judge Johnston had abused his discretion in construing Judge Key's 1993 order as a dismissal pursuant to Rule 41(b), Ala. R. Civ. P. Based on its opinion in Evans, the Court of Civil Appeals reversed the summary judgment entered by the trial court and remanded the case for further proceedings. Judge Thompson dissented in Brown, referring to his dissent in Evans. This Court granted certiorari review in both cases to determine whether the Court of Civil Appeals properly held that the trial court's May 18, 1995, order dismissing the action was a dismissal without prejudice, pursuant to Rule 41(a), Ala. R. Civ. P. We conclude that Judge Thompson's analysis in his dissents in Evans and Brown is correct, and we adopt that analysis as our own. The judgments of the Court of Civil Appeals are reversed, and these causes are remanded for the entry of judgments consistent with this opinion. 1981706REVERSED AND REMANDED. 1981707REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] The plaintiffs subsequently amended their complaint to add 5 additional plaintiffs, bringing the total number of plaintiffs to 29. [2] According to § 25-5-117(a), Ala.Code 1975, regarding occupational diseases, an employee must file a claim for compensation within two years after the date of the injury. Section 25-5-117(b), Ala.Code 1975, defines "the date of the injury" as "the date of the last exposure to the hazards of the disease." Brown's employment with Courtaulds ended on June 30, 1995; she filed her lawsuit on December 19, 1997. [3] The court noted that Brown did not appeal the summary judgment entered for Courtaulds on her claim for workers' compensation benefits.

May 5, 2000

e768b8a6-bed0-44bc-b3e0-66cc9facabda

Ex Parte Billeck

777 So. 2d 105

1981644

Alabama

Alabama Supreme Court

777 So. 2d 105 (2000) Ex parte Edwin A. BILLECK. (Re Edwin A. Billeck v. Hellene M. Billeck.) 1981644. Supreme Court of Alabama. May 12, 2000. Rehearing Denied July 28, 2000. *106 F. Patrick Loftin of Loftin, Herndon, Loftin & Miller, Phenix City, for petitioner. L. Joel Collins, Phenix City, for respondent. JOHNSTONE, Justice. On March 24, 1989, the Russell County Circuit Court divorced Edwin A. Billeck (the husband) and Hellene M. Billeck (the wife). The divorce judgment incorporated a settlement agreement between the husband and the wife. The settlement agreement provided that the husband would pay the wife periodic alimony as follows: At the time of the divorce, the husband received monthly military retirement benefits of $1,359.20. He paid the wife that amount as periodic alimony for 10 years. In 1995, upon the husband's petition to reduce the amount of his periodic alimony obligation, the trial court denied any reduction. In January 1998, the husband was declared partially disabled. He began receiving veteran's disability payments, accompanied by a corresponding reduction in his military retirement benefits. Thereafter, the husband received monthly veteran's disability benefits of $593.20 and monthly military retirement benefits of $766; and he paid the wife $766 per month as periodic alimony. On March 25, 1998, the wife filed a "Petition for Modification and Rule Nisi," wherein she requested the trial court to order the husband to pay her his monthly veteran's disability benefits in addition to his military retirement benefits, as periodic alimony. Additionally, the wife requested the trial court to order the husband to pay her a periodic alimony arrearage of $1,186.40. After an ore tenus proceeding, the trial court ordered the husband to pay $2,996 as a periodic alimony arrearage and $2,500 as an attorney fee. The trial court also ordered the husband to pay the wife as periodic alimony his monthly veteran's disability benefits of $593.20 in addition to his monthly military retirement benefits of $766. Upon the husband's appeal, the Court of Civil Appeals affirmed the judgment of the trial court. Billeck v. Billeck, 777 So. 2d 103 (Ala.Civ.App.1999). The Court of Civil Appeals agreed with the trial court's reasoning that to allow the husband to reduce his periodic alimony obligation, by applying for veteran's disability benefits would, in effect, void the agreement of the parties. Petitioning this Court for certiorari review, the husband argued that the trial court erred in ordering him to pay his veteran's disability benefits to the wife inasmuch as federal law, 10 U.S.C. § 1408(a)(4), excludes veteran's disability benefits paid in lieu of retirement pay from marital property subject to division in a divorce action. We granted certiorari review to determine whether the trial court's order violates federal law. A trial court may modify an obligation of periodic alimony if changed circumstances of the parties justify such a modification; and, in doing so, the trial court does not void the agreement of the parties because the merger of the agreement into the final divorce judgment has already eliminated its contractual nature. Ex parte Owens, 668 So. 2d 545 (Ala.1995); Price v. Price, 705 So. 2d 488 (Ala.Civ.App. 1997); Kirkpatrick v. Smith, 500 So. 2d 8 (Ala.Civ.App.1986). However, a trial court's decision to modify a divorce judgment may not contradict or violate federal law. The United States Supreme Court has stated that a state divorce judgment, "like other law governing the economic aspects of domestic relations, must give way to clearly conflicting federal enactments." Ridgway v. Ridgway, 454 U.S. 46, 55, 102 S. Ct. 49, 70 L. Ed. 2d 39 (1981). See Metropolitan Life Ins. Co. v. Potter, 533 So. 2d 589, 592 (Ala.1988). In 1982, Congress enacted the Uniformed Services Former Spouses' Protection Act (FSPA), 10 U.S.C. § 1408 (1982 ed. and Supp. V), authorizing state courts to treat "disposable retired pay" as divisible marital property in a divorce action. That Act, however, excludes from the definition of "disposable retired pay" any amounts waived by the retiree in order to receive veteran's disability benefits. § 1408(a)(4)(B). See 38 U.S.C. § 310 (wartime disability) and § 331 (peacetime disability). Section 1408(e)(6) of the FSPA provides further that: In 1989, the United States Supreme Court, interpreting the FSPA, held that, although the FSPA authorizes state courts to treat "disposable retired pay" as divisible community property, it specifically limits the state courts from treating veteran's disability benefits received in lieu of retirement pay as divisible community property. Mansell v. Mansell, 490 U.S. 581, 109 S. Ct. 2023, 104 L. Ed. 2d 675 (1989). In Mansell, the husband and the wife reached a property settlement agreement which was merged into the divorce judgment. That agreement provided, in part, that the husband would pay the wife 50% of his total military retirement pay, including the retirement pay that he had waived to receive veteran's disability benefits. Thereafter, the husband petitioned the trial court to modify the divorce judgment by removing the provision which required him to pay 50% of his total retirement pay to the wife. He argued that federal law preempted state courts from treating military retirement pay waived to receive veteran's disability benefits as community property.[1] The Mansell court found that the plain language of § 1408(c)(1) clearly precluded states from treating as community property retirement pay waived by the retiree so he may receive veteran's disability benefits.[2] Following the mandates of § 1408 and Mansell, this Court has recognized that "disposable military retirement benefits, as defined by 10 U.S.C. § 1408(a)(4), accumulated during the course of the marriage constitute marital property and, therefore, are subject to equitable division as such." Ex parte Vaughn, 634 So. 2d 533, 536 (Ala. 1993). Contrary to § 1408 and Mansell, however, Alabama courts have held that a trial court may consider veteran's disability benefits as a source of income in an award of periodic alimony. Mims v. Mims, 442 So. 2d 102 (Ala.Civ.App.1983); Lott v. Lott, 440 So. 2d 1090 (Ala.Civ.App. 1983); and Pedigo v. Pedigo, 413 So. 2d 1154 (Ala.Civ.App.1981), cert. quashed, 413 So. 2d 1157 (Ala.1982). Like Alabama, other state courts have found that, although § 1408 and the Mansell decision prohibit direct payments of alimony from veteran's disability benefits received in lieu of retirement pay, those veteran's disability benefits may be considered in determining an award of alimony. Allen v. Allen, 650 So. 2d 1019 (Fla.Dist.Ct.App.1994); Womack v. Womack, 307 Ark. 269, 818 S.W.2d 958 (1991); Murphy v. Murphy, 302 Ark. 157, 787 S.W.2d 684 (1990); and Repash v. Repash, 148 Vt. 70, 528 A.2d 744 (1987). The Mansell decision and § 1408 clearly manifest the intent of the federal law that a retiree's veteran's disability benefits be protected from division or assignment. Alabama courts and other state courts have circumvented the mandates of the Mansell decision and § 1408 by allowing trial courts to consider veteran's disability benefits in awarding alimony. The *109 state courts have reasoned that, as long as the trial court does not order the husband directly to pay his veteran's disability benefits to the wife, the trial court does not violate § 1408. This reasoning is flawed. When a trial court makes an alimony award based upon its consideration of the amount of veteran's disability benefits, the trial court essentially is awarding the wife a portion of those veteran's disability benefits; and in doing so the trial court is violating federal law. Mansell, supra, and § 1408. Thus, this Court overrules Mims, Lott, and Pedigo to the extent that these cases violate federal law prohibiting the division or assignment of a retiree's veteran's disability benefits received in lieu of retirement pay. In the case before us, the trial court ordered the husband to pay the wife "all of his military retirement pay received as a result of his United States Army military service from whatever source, be it defined as military retirement pay or VA disability." The trial court stated further, "For the purpose of this Order, VA disability [benefits] shall be considered as part of his military retirement pay." The trial court's order directly contradicts the plain language of § 1408 and the Mansell decision which provide that veteran's disability benefits are not considered disposable military retirement pay subject to division or assignment. Thus, the trial court's order violates federal law. Moreover, the agreement incorporated into the divorce judgment provides that the husband will pay the wife his "monthly U.S. military retirement check" as periodic alimony.[3] The husband has complied with the literal language of the judgment by paying the wife his entire military retirement benefits. No specific amount of alimony is stated in the agreement. The agreement does not contain an indemnification provision to protect the monthly sum the wife would receive should the husband's military retirement benefits be reduced. See Abernethy v. Fishkin, 699 So. 2d 235 (Fla.1997) (an indemnification provision in the settlement agreement saved the wife's entitlement to 25% of the husband's military retirement pay by preventing the husband from taking any course of action, like electing to receive veteran's disability benefits in lieu of retirement pay, that would reduce the wife's payments). The trial court erred in ordering the husband to pay his veteran's disability benefits to the wife. Consequently, the Court of Civil Appeals erred in affirming the judgment of the trial court. Thus, the judgment of the Court of Civil Appeals is reversed and this cause is remanded to that court for entry of a judgment consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, and ENGLAND, JJ., concur. BROWN, J., concurs specially. SEE and LYONS, JJ., concur in the result. BROWN, Justice (concurring specially). I reluctantly concur. I agree with Justice O'Connor's dissent in Mansell v. Mansell, 490 U.S. 581, 109 S. Ct. 2023, 104 L. Ed. 2d 675 (1989), and I believe that our holding in this present case is inconsistent with both the language and the purposes of the Uniformed Services Former Spouses' Protection Act. [1] Specifically, the husband argued that 38 U.S.C. § 3101(a), which provides, in pertinent part, that "[p]ayments of benefits due or to become due under any law administered by the Veterans' Administration shall not be assignable except to the extent specifically authorized by law, and such payments ... shall be exempt from the claim of creditors and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary," protected veterans' disability benefits from division in a divorce action. [2] Because the Mansell court determined that § 1408 protects veterans' disability benefits received in lieu of retirement pay from division as marital property, the court did not discuss whether the anti-attachment clause of § 3101(a) independently protects veterans' disability benefits from division in a divorce action. [3] Although the husband agreed to pay his entire military retirement check as periodic alimony, 10 U.S.C. § 1408(e)(1), provides that court ordered alimony, child support. or division of property payments may not exceed 50% of the retiree's disposable retirement pay.

May 12, 2000

25bc9869-6db5-4619-ab29-5d2085fa44de

Fisher v. Comer Plantation, Inc.

772 So. 2d 455

1980866

Alabama

Alabama Supreme Court

772 So. 2d 455 (2000) Harry FISHER v. COMER PLANTATION, INC., et al. 1980866. Supreme Court of Alabama. May 19, 2000. *458 Lynn W. Jinks III of Jinks, Jackson, Daniel & Crow, L.L.C., Union Springs; and James E. Williams and Flynn Mozingo of Melton, Espy, Williams & Hayes, P.C., Montgomery, for appellant. Alexander W. Jones, Jr., William S. Pritchard III, and Amy L. Slate of Pritchard, McCall & Jones, L.L.C., Birmingham, for appellees Comer Plantation, Inc.; Old Spring Hill Plantation, Inc.; James Kenneth Freeman; Alabama Land Locators, Inc.; and Paul H. Thomas. Jack B. Hinton, Jr., of Gidiere, Hinton & Herndon, Montgomery, for appellee Roger M. Pugh. William C. Carn III and William W. Nichols of Lee & McInish, Dothan, for appellee Timothy Speaks. MADDOX, Justice. The opinion of January 21, 2000, is withdrawn, and the following opinion is substituted therefor. This case arises out of a sale of real estate and requires us to examine the various duties owed to prospective buyers in real-estate transactions. The real estate involved is a 2600-acre tract, known as the Comer Plantation, located in Barbour County. Harry Fisher negotiated for the purchase of the plantation; he paid $50,000 in earnest money, but later sought to rescind the contract of purchase and get a refund of his earnest money. When he failed in those attempts, he sued Comer Plantation, Inc. (the entity that owned the tract); its stockholders; Alabama Land Locators ("Locators"), a real-estate brokerage firm; and others, including Roger Pugh, who had done an appraisal on the property; Tim Speaks, an agent for Locators; and Paul Thomas, the owner of Locators and a stockholder in Comer Plantation, Inc. The trial court entered a summary judgment for each defendant. The plaintiff appealed. We reverse as to the claims alleging suppression and breach of fiduciary duty against Speaks, Thomas, and Locators, and as to the claim alleging a breach of fiduciary duty by Locators as an escrow agent. We affirm the summary judgments on all remaining claims. The record before us, viewed in the light most favorable to the plaintiff, suggests the following facts: In early 1995, Harry Fisher, a lawyer from Troy, North Carolina, developed an interest in Alabama real estate after going on numerous hunting trips throughout the State. Because Fisher knew nothing about Alabama real-estate markets, he contacted Locators for assistance. He telephoned the firm and left his name and telephone number and asked that someone contact him. Tim Speaks, an agent for Locators, returned Fisher's telephone call. Fisher told Speaks about the kind of property he was looking for and speculated on potential uses for it. After that initial conversation, Speaks sent Fisher information regarding various properties, including Comer Plantation, a 2600-acre antebellum plantation located in Barbour County. Speaks told Fisher that this property best accommodated Fisher's potential needs. Speaks told Fisher that Comer Plantation had been on the market for a long time and that the sellers would probably accept a price that Fisher would find reasonable. Speaks then invited Fisher to visit Comer Plantation and inspect the property. Fisher agreed. Speaks made all the appropriate arrangements for Fisher's visit, including arrangements for accommodations and transportation to Comer Plantation. *459 When Fisher first arrived at the hotel, Speaks provided him with a real-estate appraisal that had been prepared by Roger Pugh for the benefit of Paul Thomas, who was the owner of Locators and a stockholder in Comer Plantation, Inc. The report, addressed to SouthTrust Bank, estimated the value of Comer Plantation to be $919,000. Speaks advised Fisher to read the entire report and to bring it with him when he looked at the property. The following morning, Speaks took Fisher on a tour of the property, and Fisher saw that the property needed extensive work in order to be usable. Many of the roads were impassable, primarily because of washouts and a need for culverts. Many of the structures on the property, including antiquated tenant houses, a windmill, a smokehouse, and other structures dating back to the antebellum period, were in complete disrepair. Pugh's appraisal listed the aggregate value of these structures as $20,000, which Speaks represented to Fisher to be a correct figure. There was also a man-made lake that had yet to be completed and filled with water. When Fisher asked Speaks about these problems, Speaks advised him to make an offer on the property "as-is." Speaks again told him that the owners wanted to sell the property as soon as they could. That night, when Speaks and Fisher returned to the hotel, Speaks suggested that Fisher should offer between $500,000 and $600,000 for the property "as-is." Fisher considered what Speaks told him and formulated an offer based on the appraisal and on his inspection of the land. After a second day of inspecting the property, Speaks introduced Fisher to Paul Thomas. Speaks, however, never told Fisher that Thomas was also his employer. The meeting was short and spirited. Fisher offered $500,000 for the property "as-is." Thomas refused to take the offer to the other owners. Fisher suggested that they should reduce the offer to writing, but Thomas abruptly said that there was no need to do so because the other owners would never consider it. When Thomas left, Speaks apologized for Thomas's conduct and said that he was going to talk with other owners who, he said, were more influential. Fisher responded by saying that he was no longer interested in the property, and he returned to North Carolina. Days later, Billy Pritchard, a Birmingham lawyer who was also a stockholder in Comer Plantation, Inc., telephoned Fisher, apologized for Thomas's conduct, and told Fisher that he was the only true representative of the owners in regard to a sale. He told Fisher that hePritchardwould like to sell the property, but not "as-is," if Fisher was still interested. Fisher soon began to negotiate with Pritchard. According to Fisher, Pugh's appraisal was the foundation for the negotiations. In arriving at an agreeable price, Fisher and Pritchard started at the full-appraisal figure, $919,000, and made deductions where both agreed deductions were appropriate. Fisher testified that he believed that $919,000 represented the true market value of Comer Plantation, and that because Pritchard clearly relied on that figure as the starting price, he thought that Pritchard also believed that it represented the true market value. Speaks had an active part in making the sales contract. On Fisher's behalf, he negotiated for the owners to provide culvert pipes to repair the damaged roads on the property. Originally, Pritchard had wanted Fisher to pay for the cost of the pipes, but Speaks talked Pritchard into providing them free of charge. Speaks also helped Fisher by providing information, advice, and general assistance throughout the negotiations. Eventually, Fisher and Pritchard agreed on a price of $710,000. Pritchard sent Fisher a contract, which he signed and returned. Pursuant to the contract, Fisher tendered a check for $50,000 earnest *460 money to be deposited in an escrow account maintained by Locators. Days after the execution of the contract, Fisher sent Pugh's appraisal to Jimmy Preslar, his personal banker in North Carolina, to obtain financing. Preslar checked the arithmetic used in the appraisal and discovered an error in addition that had caused the estimate to be nearly $100,000 greater than the underlying numbers supported. Fisher immediately telephoned Pritchard, notified him of the error, and told him that he no longer wished to be bound by the contract because, he said, the negotiations had been premised on a faulty estimate. Fisher also demanded the return of his $50,000. Pritchard checked the appraisal, confirmed the error, and promised to investigate it. Later that day, Pugh telephoned Fisher and offered an explanation for the error. Pugh said that while $919,000 was the correct total value of the property, the estimate of the value of the other improvementsincluding the unusable tenant houses, the decaying windmill, the smokehouse, and other structures built over 150 years agohad been incorrectly stated as approximately $20,000 when it should have been nearly $120,000. Pugh claimed the error was typographical. Fisher questioned the explanation. The error convinced Fisher that he should withdraw from the contract. He again demanded the return of his $50,000, but Speaks refused to return it. Comer Plantation, Inc., and its stockholders, on May 5, 1995, filed a declaratory-judgment action in the Jefferson Circuit Court, against Locators. Fisher was not notified of that Jefferson County action and did not discover that it had been filed and adjudicated until after discovery in the present case had commenced. The Jefferson Circuit Court held that the contract had been breached and ordered that the $50,000 be disbursed among the owners of Comer Plantation. Consequently, the $50,000 was removed from escrow and was distributed to the owners of Comer Plantation, which included Thomas, according to the terms of the order. Subsequently, Fisher filed this lawsuit to recover the $50,000 down payment and to recover other damages, based on claims of fraudulent misrepresentation, suppression, breach of fiduciary duty, and negligence. Most of the issues presented in this case are affected by the relationship that Fisher, as a prospective purchaser of real estate, had with each defendant. We will therefore address the merits of each claim and the issues presented as they apply to each defendant. Our scope of review in regard to a summary judgment has been frequently stated. "In reviewing the disposition of a motion for summary judgment, we utilize the same standard ... the trial court [used] in determining whether the evidence before [it] made out a genuine issue of material fact" and whether the movant was "entitled to a judgment as a matter of law." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988) (citing Chiniche v. Smith, 374 So. 2d 872 (Ala.1979)); Rule 56(c) Ala.R.Civ.P. The movant has the burden of "showing material facts, which, if uncontested, entitle the movant to [a] judgment as a matter of law." Berner v. Caldwell, 543 So. 2d 686, 688 (Ala.1989); Woodham v. Nationwide Life Ins. Co., 349 So. 2d 1110, 1111 (Ala.1977). Once the movant has made this showing, the opposing party then has the burden of presenting evidence creating a genuine issue of material fact. Danford v. Arnold, 582 So. 2d 545, 546 (Ala.1991); Bass v. South-Trust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Moreover, the nonmovant has the burden of establishing the existence of a genuine issue of material fact, by substantial evidence. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, supra. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment *461 can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala.1990); Harrell v. Reynolds Metals Co., 495 So. 2d 1381, 1383 (Ala.1986); Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986). Fisher alleged that Pugh had negligently or wantonly misrepresented and suppressed facts. We need to consider only Fisher's claims of negligent or wanton misrepresentation.[1] The threshold question we must consider appears to be one of first impression: When and under what circumstances can a real-estate appraiser be held liable to a third party for a negligent misrepresentation in an appraisal? Insofar as we can tell, that precise issue has not been addressed by Alabama courts, although this Court has held that accountants may be liable to third parties under a theory of negligent misrepresentation if certain circumstances exist. See Boykin v. Arthur Andersen & Co., 639 So. 2d 504 (Ala.1994); see also Colonial Bank of Alabama v. Ridley & Schweigert, 551 So. 2d 390 (Ala.1989). In Boykin v. Arthur Andersen & Co., this Court adopted Restatement (Second) of Torts § 552 (1977) as the law of this State in cases involving negligent misrepresentations relied upon by third parties, or parties who were not in privity of contract with the person making the misrepresentation. Boykin, 639 So. 2d at 509-10. Restatement § 552 reads as follows: Restatement (Second) of Torts § 552 (1977). While we have applied this rule only to accountants, nothing in our prior cases should be understood as restricting our application of the Restatement approach to that one class of professionals. *462 The rule of § 552 may be applied to anyone who in the course of his "business, profession or employment" engages in an activity that meets the requirements set forth in Subsection (1). Comment c to § 552 states that this rule "subjects to liability only such persons as make it a part of their business or profession to supply information for the guidance of others in their business transactions." Section 552 would clearly, by its terms, govern real-estate appraisers, who, as an integral part of their business, facilitate real-estate transactions by issuing opinions regarding the value of real property.[2] These opinions usually influence the decisions of persons or entities to whom they are furnished. These persons or entities include banks considering whether to lend money to finance a real-estate purchase and buyers and sellers trying to determine an accurate price for real-estate. We therefore hold that real-estate appraisers are subject to liability for negligent or wanton misrepresentation, on the same basis that accountants are. We now consider whether, based on the facts suggested by the record, Pugh owed Fisher a duty the breach of which would be actionable. We noted that the Restatement's definition of "duty" in negligent-misrepresentation cases limits the defendant's liability to "specifically foreseen and limited groups of third parties for whose benefit and guidance the [defendant] supplied the financial information and who used it as the [defendant] intended it to be used." Boykin, 639 So. 2d at 510. Under the Restatement rule, as applied to the facts of this case, Fisher would have the burden of showing that Pugh, the appraiser, foresaw, or should have foreseen, that his appraisal would be relied upon by a limited class that included Fisher. The Restatement rule, if applied to appraisers generally, would impose on an appraiser a duty to third parties that the appraiser intended to influence, as well as any party that the appraiser knew his client intended to influence by means of the appraisal. See First Nat'l Bank of Commerce v. Monco Agency, Inc., 911 F.2d 1053, 1059 (5th Cir.1990) (quoted by Boykin, 639 So.2d at 510). The Restatement rule, however, does not require, for the imposition of a duty, that one making a representation through a report or appraisal contemplate the specific identity of the person who may rely on the representation. Fisher argues that Pugh should have known that Locators would distribute the appraisal to prospective purchasers of Comer Plantation, given Pugh's extensive experience in the real-estate industry. Fisher also argues that an affidavit made by Charles Arrington, a professional Alabama real-estate broker with 25 years' experience, should not have been stricken as inadmissible but should have been considered by the trial court as evidence indicating that Pugh owed Fisher a duty. These arguments, however, ignore the undisputed fact that the appraisal report was issued for the benefit of Thomas in his individual capacity rather than as a representative of his real-estate firm. Given that fact, we must conclude that Fisher's argument would impose on Pugh a duty that goes beyond that established by the Restatement rule and the cases interpreting it, and that Fisher failed to present evidence sufficient to support an inference that Pugh foresaw, or should have foreseen, that his appraisal would be used by prospective purchasers. *463 Pugh's report contains a statement, entitled "Assumptions and Limiting Conditions," that describes the intended use of the document. It expressly provides that the report may not be used for any purpose other than its "intended use" without the permission of the appraiser. "Intended use" has several meanings, depending on the context in which the report is provided, but based on the facts of this case, we cannot accept Fisher's argument that these facts satisfy the Restatement rule for the imposition of a duty to him. Suffice it to say that in this case, no evidence suggests Pugh knew, or should have known, that Thomas, in his capacity as an owner of Comer Plantation, was going to distribute the appraisal report to prospective purchasers. The evidence presented by Fisher, including Arrington's stricken affidavit, is irrelevant. Pugh stated in his deposition that he prepared the appraisal report solely for Thomas as a partial owner of Comer Plantation. Fisher presented no evidence to the contrary. Without evidence showing that Pugh knew, or should have known, that Thomas, as an owner and potential seller, was going to use the report as a selling tool, we cannot conclude that Pugh could be held liable for breach of a duty to Fisher. We must conclude that the evidence does not create a genuine issue of material fact as to whether Pugh owed Fisher a duty. "[B]ecause liability for negligence and wantonness is predicated upon the existence of a duty," Colonial Bank of Alabama, 551 So. 2d at 395 (citing Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So. 2d 142 (Ala.1987)), the trial court correctly granted Pugh's motion for summary judgment. Therefore, we need not address the question whether the appraisal contained a misrepresentation or, if it did, whether Fisher relied on it. The summary judgment is affirmed as to the claims against Pugh. Fisher seeks damages from Speaks, alleging that Speaks, on behalf of, and as an agent for, Locators and the owners of Comer Plantation, fraudulently misrepresented the value of the property and the accuracy of Pugh's appraisal. He also seeks to recover damages against Locators, as Speaks's employer, and against the owners of Comer Plantation, based on a theory of derivative liability. Fisher argues that the trial court incorrectly entered the summary judgment on his claims against each of these defendants. To recover on a claim of fraudulent misrepresentation, see § 6-5-101, Ala.Code 1975, Fisher must establish four elements: "(1) a false representation (2) concerning a material existing fact (3) relied upon by the plaintiff (4) who was damaged as a proximate result." Baker v. Bennett, 603 So. 2d 928, 935 (Ala.1992). The gravamen of Fisher's fraud claim is that Speaks willfully, recklessly, or mistakenly misrepresented the value of Comer Plantation. However, Speaks was a conduit who relayed information compiled and reported by the appraiser. Therefore, we must first examine whether relayed information that is incorrect constitutes a misrepresentation. According to Speigner v. Howard, 502 So. 2d 367 (Ala.1987), those who are only conduits through which faulty information is supplied by one person to a third person cannot be held liable for fraud unless they acted in bad faith. Speigner, 502 So. 2d at 371; see also Miller v. Sexton, 549 So. 2d 10, 12 (Ala.1989). In Speigner, this Court addressed the question whether one who relays information, unaware of its falsity, can be held liable for fraud. 502 So. 2d at 370-71. In that case, the plaintiffs asserted that their real-estate agents had informed them that the roof of a house they were considering buying was in good condition and had no defects. The agents, *464 however, had no personal knowledge regarding the condition of the roof and merely relied on representations made to them by the seller that the roof was in good condition. When the plaintiffs bought the house, they experienced massive leaks in the roof over one particular room. We held that the defendants were not liable for fraud "for merely conveying the statements of [the seller] to the agent of the [plaintiffs]" without evidence of bad faith. Id. at 371 (emphasis omitted). In the present case, the faulty information was supplied by Pugh, who prepared the appraisal report that contained the alleged misrepresentations. No evidence in the record suggests that Thomas or Locators retained the right to direct the manner in which Pugh prepared the appraisal; thus, in making it, Pugh was acting as an independent contractor. See generally Fuller v. Tractor & Equip. Co., 545 So. 2d 757, 758-59 (Ala.1989) (discussing what makes one an independent contractor). The report was received from Pugh by Thomas, who was acting in an arm's-length relationship with Pugh. Thomas was a part-owner of Comer Plantation; he passed the report on to Locators, a real-estate agency he owned. Speaks, as an employee of Locators, ultimately received the report and relayed its contents on to Fisher; its contents included an attestation of accuracy. We can find no evidence in the record indicating that Speaks, Locators, or Thomas acted in bad faith. Therefore, under the authority of Speigner, we conclude that the trial court correctly entered the summary judgment as to Fisher's claims against Speaks and Thomas, because they were conduits passing information supplied by Pugh. Because the liability of Locators and the owners is premised on the liability of Speaks, an agent of Locators, we likewise conclude that the summary judgment was proper as to the claims against them. As to the fraudulent-misrepresentation claims against Speaks, Locators, and the owners, the summary judgment is affirmed. Fisher claims that Speaks, Locators, and Thomas owed him a fiduciary duty to fully inform him (1) that the appraisal presented to Fisher contained a $100,000 mistake and (2) that Thomas was both an owner of Comer Plantation and the owner of the real-estate firm charged with selling the property.[3] These allegations also form the basis for Fisher's claim regarding fraudulent suppression.[4] We first consider whether Speaks had a duty to disclose the appraisal mistake or to disclose Thomas's relationship with Locators, Speaks's employer. In deciding this question, we are bound by the common law as it existed before the enactment of the Real Estate Consumer's Agency and Disclosure Act ("the Act")codified at §§ 34-27-80 through -88, Ala.Code 1975which became effective after the transactions that resulted in this lawsuit had occurred.[5] According to § 6-5-102, Ala.Code 1975, a duty to communicate, or disclose, can arise from (1) "confidential relations of the parties" and (2) "the particular circumstances of the case." We conclude that, under Alabama's common law, an affirmative *465 duty arose on the part of Speaks to disclose the nature of Thomas's interests as they related to Speaks. Before the Act was adopted, the well-established rule under Alabama common law was that a real-estate broker could not serve as the agent of a buyer and also of the seller unless both parties, with full knowledge, consented to the broker's dual representation. See Davis v. Brown, 513 So. 2d 1001, 1001-03 (Ala.1987); Cashion v. Ahmadi, 345 So. 2d 268, 271 (Ala.1977); First S. Fed. Sav. & Loan Ass'n v. Nicrosi, 333 So. 2d 780, 784-85 (Ala.1976) (Jones, J., dissenting); and Finney v. Long, 216 Ala. 628, 631, 114 So. 200, 203 (1927); see also J. Clark Pendergrass, The Real Estate Consumer's Agency and Disclosure Act: The Case Against Dual Agency, 48 Ala. L.Rev. 277, 287-90 (1996) (discussing dual agency under Alabama common law). In the present case, Speaks's duty of disclosure depends on whether he was a dual agent. Cf. Cashion, 345 So. 2d at 270-71 (where this Court refused to adopt the California case of Lingsch v. Savage, 213 Cal. App. 2d 729, 29 Cal. Rptr. 201 (1963), which held that if a broker, even if he is an agent of the seller, has knowledge of defects not known to or readily ascertainable by the buyers, the broker is under a duty to disclose those defects, and the failure to do so results in liability to the buyer). Therefore, we are confronted with the precise question whether there was a genuine issue of material fact as to whether Thomas, who was obviously an agent for the sellers, was also an agent for Fisher. The question of agency in this case depends on whether a jury could have inferred that Fisher and Speaks consented to an agency relationship. See Harold Gill Reuschlein & William A. Gregory, The Law of Agency and Partnership, § 12 (2d ed. 1990) ("Agency is a consensual relationship."). An agency relationship can arise in different ways: 3 Am.Jur.2d Agency § 18 (1986). Fisher argues that Speaks's agency was implied from an amalgam of circumstances and conduct surrounding the negotiation of the purchase of Comer Plantation. During the negotiations, Speaks conducted himself as if he represented Fisher. He advised Fisher regarding what amount should be offered for the land and also negotiated on Fisher's behalf for the owners to provide culvert pipes to repair damaged roads on the property. The record suggests that Speaks thrust himself into the heart of the transaction on Fisher's behalf; therefore, we conclude that Fisher presented sufficient evidence for the question of Speaks's agency to be submitted to a jury. See Cashion, 345 So. 2d at 271 (stating that the question whether a real-estate agent represents a buyer and a seller in the same transaction in a fiduciary capacity is a jury question). If a jury finds Speaks was Fisher's agent by an implied agency, then it also could infer that Speaks breached his fiduciary duty as Fisher's implied agentit could infer this from the evidence in the record suggesting that Speaks failed to disclose that his employer, Thomas, was *466 also one of the owners of Comer Plantation, which was the subject of the agency relationship. Speaks's representation of a group of individuals that included Thomas naturally involved a personal interest in terms of an employee-employer relationship, which was contrary to his fiduciary duty to Fisher unless Fisher consented to the conflict of interest after full disclosure. A jury can reasonably conclude that Speaks's failure to disclose this conflict constituted a breach of his fiduciary duty owed to Fisher. Whether Speaks and the other defendants had a duty to disclose the error in the appraisal is potentially more complex than the question just answered, but we need not address this issue. Rather, we focus on the nature of the suppression that Fisher alleges. Specifically, he argues that Speaks should have disclosed that the report contained a mathematical error. In Cornelius v. Austin, 542 So. 2d 1220, 1222 (Ala.1989), we stated: Considering the nature of the error in the appraisal report, we conclude that these principles apply here. The error in the appraisal report appears on the final page of the report. On that page, the appraiser added 10 figures, 1 from each category he had valued. These categories included the values of particular structures, such as the plantation house, as well as the values of specific uses, such as harvesting timber. These 10 figures were presented in a single column and were totaled at the end. Simple arithmetic performed in a moment's time would have revealed the error. The record indicates that parties who typically rely on appraisals, such as banks, always check the figures for mathematical accuracy to guard against the problem experienced by Fisher. Fisher, who is a lawyer with a degree of real-estate experience, surely knew that his reliance on the appraisal would complicate negotiations if there was a mathematical error in its total. Even if a jury found a fiduciary relationship between Speaks and Fisher, the jury could not find that Speaks violated his duty simply by failing to direct Fisher's attention to what Fisher admitted was an "obvious error." We conclude that Fisher's inattention to his own interest precludes him from recovering on his claim alleging suppression of the mathematical error. We are therefore left with the claim regarding Speaks's failure to disclose Thomas's dual status as an owner of Comer Plantation and the employer of Speaks. We must now decide whether this failure gives Fisher an actionable claim, after considering whether he suffered a loss, and, if so, whether the alleged suppression proximately caused it. The primary loss Fisher claims is the $50,000 earnest money he forfeited by repudiating his contract to purchase Comer Plantation. He also claims, however, that he lost the benefit of an advantageous bargain he says he would have obtained by purchasing the property and using it for various purposes. In fraudulent-suppression cases, causation is often discussed in terms of reliance. When deciding whether the plaintiff relied on a misrepresentation, the fact-finder must consider whether the plaintiff would have chosen a different course but for the suppression of a material fact. Shades Ridge Holding Co. v. Cobbs, Allen & Hall Mortg. Co., 390 So. 2d 601, 611 (Ala.1980). *467 The contract for the sale of Comer Plantation included a liquidated-damages clause, which provided: After Fisher signed this contract, he sent Locators a check for $50,000 as earnest money. Once he discovered the error in the appraisal report, he repudiated the contract and demanded the return of his payment. The contract, however, unequivocally gave the sellers the right to keep the $50,000 as liquidated damages.[6] Therefore, his repudiation caused him to forfeit his earnest money. During the negotiations, Fisher was in constant contact with Speaks. Speaks advised him on offering prices, answered questions, and even negotiated a small part of the contract on Fisher's behalf. While Fisher was aware of Speaks's duties to the sellers as a group, he was unaware of Speaks's personal stake in the success of the transaction. In his deposition, Fisher stated that had he known that Thomas was an owner of Locators as well as a minority owner of Comer Plantation, he would have hired an independent personsomeone other than Speaksto advise him. Presumably, he might have hired a lawyer from the Barbour County area to represent him during the negotiations. Such a lawyer, with an independent perspective of the proposed contract, might have advised Fisher not to agree to purchase Comer Plantation, either under the terms of the contract or under any terms at all, and, in such a case, Fisher would not have been in a position to forfeit his $50,000 earnest money. Under the facts of this case, reasonable persons could conclude that Fisher was induced to enter the contract based on his ignorance of Speaks's personal interest in the consummation of the sale, and they could conclude that, but for this inducement, Fisher would not have suffered a loss. Consequently, we conclude that the summary judgment was improperly entered as to Fisher's claims against Speaks, Thomas, and Locators alleging suppression and breach of fiduciary duty (as those claims related to the failure to disclose the relationship between Thomas and Locators). As to those claims, the summary judgment is reversed. The final issue raised by Fisher is whether Locators breached its duty as an escrow agent.[7] Fisher specifically alleges that a breach occurred (1) when Locators failed to advise him that Comer Plantation, Inc., had filed a declaratory-judgment action seeking to have the earnest money disbursed to it and (2) when, in that declaratory action, Locators did not disclose to the Jefferson Circuit Court that there was a dispute concerning the earnest money. We addressed the duties of an escrow agent in Gurley v. Bank of Huntsville, 349 So. 2d 43 (Ala.1977). There, we explained: 349 So. 2d at 45 (citations omitted). In that case, the escrow agent, which was a bank, held earnest money deposited in conjunction with a sale of stock. The purchaser gave the seller a promissory note in exchange for the stock. The seller and the purchaser, however, did not create a security interest in the stock. During the period in which the bank was acting as an escrow agent, it lent money to the prospective purchaser and secured the loan by taking a security interest in the stock. When the purchaser became delinquent on its loan to the bank, the bank foreclosed on the stock. The seller sued the bank, alleging breach of a fiduciary duty to disclose its arrangement with the purchaser. We held that the bank's duties as an escrow agent were limited to the transaction that was the subject of that relationship. Id. at 46. In Gurley, the transaction between the seller and the purchaser and the transaction between the purchaser and the bank were found to have been entirely separate and distinct; therefore, because the alleged breach was collateral to the escrow agreement, the bank did not violate its limited duty to the seller. Id. at 45. In the present case, however, the failure of Locators to notify Fisher of the pending declaratory-judgment action went to the essence of the escrow agreement. The purpose of the declaratory-judgment action was to determine the proper recipient of the earnest money held in escrow. Indeed, disbursement of this money to the proper party was the sole duty undertaken by Locators. The failure of Locators to notify Fisher, who had an interest directly opposite that of Comer Plantation, Inc., violated this duty by depriving Fisher of the opportunity to oppose the complaint of Comer Plantation, Inc., for a declaratory judgment. Had Fisher known of the declaratory action, he could have exercised his right to intervene. Locators' breach of its duty as an escrow agent, however, prevented Fisher from exercising this right. The summary judgment was improper as to Fisher's claim against Locators alleging breach of its escrow duty. As to that claim, the judgment is reversed. OPINION OF JANUARY 21, 2000, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; APPLICATIONS FOR REHEARING OVERRULED. HOUSTON, COOK, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. HOOPER, C.J., concurs in part and dissents in part. SEE, J., concurs in part; concurs in the result in part; and dissents in part. HOOPER, Chief Justice (concurring in part and dissenting in part). I would grant the application for rehearing. I concur with the opinion except as to Part IV. I must respectfully dissent from the holding in Part IV that the summary judgment was improper on the claims of suppression and breach of fiduciary duty relating to Speaks's failure to inform Fisher that Thomas was both an owner of Comer Plantation and the owner of the real-estate firm charged with selling the property. The majority concludes that Speaks's representation of Thomas involved a personal interest in terms of an employee-employer relationship. I disagree. A real-estate agent is more akin to an independent contractor than to an employee. Speaks's only personal interest was to *469 earn his fee, and the fee depended upon whether Speaks procured a buyer who ultimately purchased the property. This personal interest is present in every transaction in which a real-estate agent participates. The fact that one seller among a group of sellers was also Speaks's employer does not give Speaks a greater personal interest in the transaction. The majority states that "[w]hile Fisher was aware of Speaks's duties to the sellers as a group, he was unaware of Speaks's personal stake in the success of the transaction." 772 So. 2d at 467. However, Fisher was in fact aware of Speaks's personal stakehis desire to earn a commission. Fisher claims that he would have hired someone independent to advise him had he known that Speaks worked for Thomas. However, Fisher never hired Speaks to advise him, and the evidence shows that Fisher knew all along that Speaks was an agent of the sellers. I do not agree that Speaks was acting as Fisher's implied agent. Fisher even commented to Thomas that Speaks "was very representative for the sellers." (Fisher deposition, p. 283.) Both the draft and the final contract that Fisher signed indicated that Speaks was an agent of the sellers and that no broker was operating on Fisher's behalf. (C.252, 273.) If the facts were different and Fisher had engaged Speaks as his agent and Speaks had failed to disclose that the owner of the real-estate company he represented was a minority seller, I would then agree that Speaks had an improper interest in the sale of the property. However, under the facts as they exist in this case, Fisher was aware of Speaks's duties to the sellers. The fact that Speaks's employer was one of the sellers does not give Speaks such a personal interest in the consummation of the sale as would support Fisher's claims of fraudulent suppression or breach of fiduciary duty. Furthermore, Fisher has not shown that Speaks's failure to disclose Thomas's ownership of Locators harmed him in any way. I do not agree with the majority that reasonable persons could conclude that Fisher was induced to enter the contract based on his ignorance of Speaks's personal interest and could conclude that but for this inducement Fisher would not have suffered the loss of his $50,000 in earnest money. Fisher suffered the loss of his $50,000 because he repudiated the contract after he discovered the erroneous appraisal report. This Court today holds that Speaks cannot be held liable for misrepresenting the value of the property or the accuracy of the appraisal report because Speaks was merely a conduit passing information reported by the appraiser. This Court also holds that Speaks did not owe Fisher a fiduciary duty to inform him of the obvious mistake in the appraisal report. Fisher cannot show that any action or inaction taken by Speaks resulted in the loss of Fisher's $50,000 in earnest money. The fact that one of the sellers was the owner of the real-estate company for which Speaks worked had no bearing on the erroneous appraisal report, the heart of the dispute in this case. For these reasons, I would grant the application for rehearing. I dissent insofar as Part IV reverses a portion of the summary judgment for Speaks. SEE, Justice (concurring in part; concurring in the result in part; and dissenting in part). I concur in the portions of the main opinion affirming the summary judgment on Fisher's claims against Pugh (the appraiser) and reversing the summary judgment on Fisher's claim against Alabama Land Locators alleging breach of duty as an escrow agent. I concur in the result of the main opinion insofar as it affirms the summary judgment on Fisher's misrepresentation claims against the plantation owners and Speaks (the real-estate agent) and affirms the summary judgment on Fisher's claims against those parties based on their failure to call his attention to the error in the appraisal report. I also concur *470 to overrule Fisher's application for a rehearing. I respectfully dissent, however, from the conclusion that Speaks's failure to disclose that Thomas, who was a part owner of the plantation, was also the owner of Alabama Land Locators amounted to an actionable fraudulent suppression. I also dissent from the overruling of the rehearing application filed jointly by Thomas and Alabama Land Locators. [1] Fisher's complaint does not allege that Pugh made any intentional misrepresentations; consequently, we need not consider any arguments relating to that theory of recovery. The claim of suppression is likewise not before us because Fisher has failed to present us with a single discernible argument as to why the summary judgment was improper as to that claim. Fisher makes no argument regarding his claim of suppression; consequently, we cannot consider that claim. Bettis v. Thornton, 662 So. 2d 256, 257 (Ala. 1995). The sole issue before us regarding Pugh, therefore, is the propriety of the summary judgment against Fisher's claim alleging negligent or wanton misrepresentation. [2] Several cases decided by courts in other states have applied to appraisers an analysis involving negligent misrepresentation. Some of these cases are Tackling v. Shinerman, 42 Conn.Supp. 517, 630 A.2d 1381 (1993); Larsen v. United Fed. Sav. & Loan Ass'n of Des Moines, 300 N.W.2d 281 (Iowa 1981); Mattingly v. First Bank of Lincoln, 285 Mont. 209, 947 P.2d 66 (1997); Ballance v. Rinehart, 105 N.C.App. 203, 412 S.E.2d 106 (1992); First Fed. Sav. Bank v. Knauss, 296 S.C. 136, 370 S.E.2d 906 (Ct.App.1988); Behn v. Northeast Appraisal Co., 145 Vt. 101, 483 A.2d 604 (1984); and Schaaf v. Highfield, 127 Wash. 2d 17, 896 P.2d 665 (1995). [3] Fisher also claims that these defendants breached a fiduciary duty by misrepresenting the true value of the property. Because we have already decided the fraudulent-misrepresentation claim adversely to Fisher in Part III, we will not discuss that claim again here. [4] Fisher's claims regarding breach of fiduciary duty and fraudulent suppression entail an identical analysis; therefore, we address them together. [5] The real-estate transaction that is the subject of this lawsuit was negotiated in the spring of 1995. Fisher and the owners signed the sales contract for Comer Plantation on March 31, 1995. The Act did not become effective until October 1, 1996, and, consequently, does not apply to this case; we find nothing to indicate the Legislature intended the Act to have a retroactive application. [6] Fisher does not dispute the validity, or the enforceability, of the liquidated-damages clause. [7] Fisher makes this claimthe breach of an escrow agent's dutyagainst those affiliated with Locators as well, including Thomas and Speaks. The summary judgment was clearly proper against this claim as it related to these individuals, because the sales contract specifically designated Locators as the only true holder of the earnest money; therefore, Locators was the sole party assuming the duty of an escrow agent.

May 19, 2000

5f1f6c67-e671-4968-8a10-9dcc6a16eb66

In Re National Contract Poultry Growers

771 So. 2d 466

1980946

Alabama

Alabama Supreme Court

771 So. 2d 466 (2000) In re NATIONAL CONTRACT POULTRY GROWERS' ASSOCIATION. In re Celia English et al. v. ConAgra, Inc., et al. 1980946. Supreme Court of Alabama. May 5, 2000. Kimberly J. Calametti of Gardner, Middlebrooks, Fleming, Gibbons & Kittrell, P.C., Mobile, for National Contract Poultry Growers' Association. Robert H. Harris of Harris, Caddell & Shanks, P.C., Decatur; and Kenneth T. Fuller, M. Dale Marsh, and M. Chad Tindol of Cassady, Fuller & Marsh, L.L.P., Enterprise, for ConAgra, Inc. BROWN, Justice. The National Contract Poultry Growers' Association ("NCPGA") appeals from an order finding it in contempt for its failure to respond to a nonparty subpoena issued at the request of ConAgra, Inc., a defendant in an action pending in the Coffee Circuit Court. We reverse and remand. On February 27, 1996, a group of poultry growers sued ConAgra, Inc.; one of its subsidiaries, ConAgra Poultry Company; and a number of ConAgra employees, alleging that the defendants had engaged in discriminatory business practices. During the discovery phase of that case, ConAgra requested that the trial court issue a nonparty subpoena to NCPGA for the production of documents. NCPGA is a corporation organized under the laws of Arkansas, with its principal place of business in Rushton, Louisiana. NCPGA has no office in Alabama, and it is not qualified to do business in Alabama. NCPGA does have an affiliated state organization, the Alabama Contract Poultry Growers' Association. NCPGA's contacts with Alabama are limited to communication with the state association and the fact that a number of its dues-paying members live in Alabama. A number of these members *467 are plaintiffs in the lawsuit pending in the Coffee Circuit Court. The subpoena was served by certified mail on NCPGA at its office in Rushton, Louisiana. The subpoena sought the production of documents kept by NCPGA at that office. NCPGA did not respond to the subpoena. Because NCPGA did not respond to the subpoena, ConAgra filed a motion to compel production. The motion to compel was served on NCPGA by certified mail at its Rushton, Louisiana, office. The circuit court held a hearing on ConAgra's motion to compel; however, NCPGA did not appear for the hearing. Following the hearing, the trial court entered an order directing NCPGA to comply with the subpoena. This order was also served on NCPGA by certified mail at its principal place of business in Rushton, Louisiana. On July 27, 1998, NCPGA filed a motion for a reconsideration of the court's order of compulsion. The trial court denied that motion on September 24, 1998. On the advice of counsel, NCPGA did not produce the documents sought by the nonparty subpoena. On December 23, 1998, ConAgra filed a motion requesting that NCPGA be required to show cause why it should not be held in contempt. A hearing was set on that motion. NCPGA, through counsel, argued that the trial court lacked the jurisdiction to issue, as well as to enforce, a subpoena directed to a nonparty located outside the State of Alabama. In an order dated January 28, 1999, the trial court rejected NCPGA's argument, stating: Concluding that NCPGA was in contempt, the trial court ordered it to produce the documents requested by the subpoena and to pay ConAgra's counsel $1,000 for expenses and fees incurred in seeking enforcement of the subpoena. Additionally, the court ordered that until such time as NCPGA purged itself of the contempt, it was forbidden from conducting any business activity in Alabama, including, but not limited to: (1) soliciting or accepting any new members of NCPGA; (2) collecting dues from any current NCPGA members; (3) conducting any NCPGA meetings; (4) communicating in any way with any NCPGA members; and (5) communicating or conducting any kind of business with its corresponding Alabama association. This appeal followed. NCPGA argues that the trial court lacked jurisdiction to issue and enforce a subpoena directed to a nonparty located outside the State of Alabama. Although technically it is not a party to this appeal, ConAgra has filed a brief in support of its contention that NCPGA was properly *468 served with the subpoena. The gist of ConAgra's argument appears to be that because NCPGA solicits members from Alabama and accepts dues from Alabama poultry growers, it does business in Alabama and has therefore subjected itself to the jurisdiction of Alabama courts. As a foreign corporation doing business in Alabama, ConAgra claims, NCPGA was required to obtain a certificate of authority from the secretary of state. See § 10-215.01, Ala.Code 1975. ConAgra further contends that because NCPGA had no registered agent in Alabama, § 10-2B-15.10, Ala.Code 1975, authorized service as provided for in the Alabama Rules of Civil Procedure.[1] Rule 34(c), Ala.R.Civ.P., provides that "[a] person not a party to the action may be compelled to produce documents and things or to submit to an inspection as provided in Rule 45," Ala.R.Civ.P. Rule 45 governs the issuance of subpoenas in civil actions. That rule reads, in pertinent part: The fact that NCPGA may have sufficient contacts with the State of Alabama to subject it to the jurisdiction of the Alabama courts under the Alabama long-arm personal-jurisdiction provisions is irrelevant to the question presented in this case. However, a finding that NCPGA is subject to the personal jurisdiction of Alabama courts would not necessarily mean that it was obligated to respond to a subpoena by having to appear and produce documents in an Alabama court in a lawsuit to which it is not a party. The underlying concepts of personal jurisdiction and subpoena power are entirely different. Personal jurisdiction is based on conduct that subjects the nonresident to the power of the Alabama courts to adjudicate its rights and obligations in a legal dispute. For example, a foreign corporation that qualifies to do business in Alabama subjects itself to the jurisdiction of an Alabama court, even if it is not a party to a lawsuit. Ex parte Nissei Sangyo America, Ltd., 577 So. 2d 912, 914-15 (Ala.1991). By contrast, the subpoena power of an Alabama court over an individual or a corporation that is not a party to a lawsuit is based on the power and authority of the court to compel the attendance of a person at a deposition or the production of documents by a person or entity. See Ex parte Leverton, 536 So. 2d 41, 44 (Ala.1988) (state trial court does not have jurisdiction over a nonparty, out-of-state witness). When one seeks a subpoena to secure the attendance of a witness, or to procure the production of documents, located outside the state, a different procedure is warranted. Although we find no Alabama decision addressing this specific situation, one commentator has stated the applicable procedure: 1 Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated § 45.2 (3d ed.1996). This procedure accords with the procedure used in other jurisdictions to secure the issuance of a subpoena for the attendance of a person, or the production of documents from a nonparty, located outside the state's boundaries. See, e.g., Craft v. Chopra, 907 P.2d 1109, 1111 (Okla. App.1995); Phillips Petroleum Co. v. OKC Ltd. Partnership, 634 So. 2d 1186, 1189 (La.1994); In re Special Investigation No. 219, 52 Md.App. 17, 24-25, 445 A.2d 1081, 1085-86 (1982). ConAgra sought to subpoena documents in the possession of NCPGA, documents located in Louisiana. Therefore, the subpoena had to be issued by a Louisiana court and had to be served in accordance with Louisiana law. Louisiana law provides: Art. 1355, La.Code. Civ. Proc. Ann. (West 1984). Article 1261, La.Code. Civ. Proc. Ann., governs service on domestic and foreign corporations. That article requires personal service on the corporation's designated agent, or, in the absence of a designated agent, personal service on any officer, director, resident agent, or an "employee of suitable age and discretion." *470 Service by certified mail is allowed only when a subpoena that has been personally served is ordered reissued because of a continuance. Art. 1355.1, La.Code. Civ. Proc. Ann. For the reasons stated above, the trial court lacked the authority to issue a subpoena directed to NCPGA. Accordingly, NCPGA cannot be held in contempt for failing to respond to that subpoena. The judgment of the trial court holding NCPGA in contempt of court is reversed and this cause is remanded. REVERSED AND REMANDED. HOOPER, C.J., and HOUSTON, SEE, and ENGLAND, JJ., concur. [1] Section 10-2B-15.10, Ala.Code 1975, entitled "Service on foreign corporation," states: "(a) The registered agent of a foreign corporation authorized to transact business in this state is the corporation's agent for service of process, notice, or demand required or permitted by law to be served on the foreign corporation. "(b) A foreign corporation may be served as provided by the Alabama Rules of Civil Procedure if the foreign corporation: "(1) Has no registered agent or its registered agent cannot be with reasonable diligence served; "(2) Has withdrawn from transacting business in this state under Section 10-215.20; or "(3) Has had its certificate of authority revoked under Section 10-2B-15.31. "(c) This section does not prescribe the only means, or necessarily the required means, of serving a foreign corporation."

May 5, 2000

47d0fee5-645d-4193-be43-2ea9e1b0e18f

Dudley v. Mesa Industries

770 So. 2d 1082

1981384

Alabama

Alabama Supreme Court

770 So. 2d 1082 (2000) William DUDLEY v. MESA INDUSTRIES and Fluke Corporation. 1981384. Supreme Court of Alabama. April 14, 2000. Michael Clay Fellows and Ben C. Hand, Jr., of Hand & Associates, Opelika; and Donald R. Harrison of Harrison & Edmonson, Dadeville, for appellant. W.F. Horsley of Samford, Denson, Horsley, Pettey & Bridges, Opelika, for appellee Fluke Corporation. *1083 Charles A. Stewart III and Brian P. Strength of Sirote & Permutt, P.C., Montgomery, for appellee Mesa Industries. MADDOX, Justice. The issue presented in this case is whether an order approving a workers' compensation settlement and releasing the employer from "any and all claims for compensation and vocational rehabilitation benefits due or which may become due to the employee under the Workmen's Compensation Act of Alabama" is to be understood as adjudicating in the employer's favor a pending claim by the employee that is based on § 25-5-11, Ala.Code 1975. We hold that it is not to be so understood. On June 27, 1996, William Dudley was injured in an accident that occurred during the course of his employment at Mesa Industries ("Mesa"). On May 6, 1997, Dudley sued Mesa for benefits under the Workers' Compensation Act. On October 30, 1997, Dudley amended his complaint to add a claim, pursuant to § 25-5-11, Ala. Code 1975, for damages based on an allegation that Mesa had failed to maintain a safety device and that that failure had caused Dudley's accident. On March 13, 1998, the trial court conducted a hearing regarding a workers' compensation settlement agreement Dudley and Mesa had reached. The court approved the settlement agreement and ordered that "the employer be released and forever discharged from any and all claims for compensation and vocational rehabilitation benefits due or which may become due to the employee under the Workmen's Compensation Act of Alabama." Nevertheless, the trial court simultaneously purported to grant Dudley's motion requesting leave to amend his complaint so as to add additional claims and additional defendants as to these claims. On June 15, 1998, Dudley amended his complaint to state a claim against Fluke Corporation ("Fluke"). Dudley also by that amendment stated new claims against Mesa, alleging fraud and the tort of outrage in connection with Mesa's handling of his workers' compensation claim. Fluke and Mesa filed motions to dismiss, arguing that the trial court was without subjectmatter jurisdiction by virtue of its March 13, 1998, order as to Mesa, which, they argue, terminated the case. The trial court dismissed the claims against Fluke on February 20, 1999, and dismissed the claims against Mesa on March 15, 1999, holding that its order of March 13, 1998, had been a final adjudication of the entire action and that the subsequent amendment to the original pleadings was, therefore, ineffective. In other words, the circuit court held it had no jurisdiction to consider the amended complaint filed after March 13, 1998. Thus, it is apparent that the trial judge thought his order releasing Mesa from the workers' compensation and vocational-rehabilitation claims also released Mesa from the claim made pursuant to § 25-5-11. The ultimate issue in this case is illustrated by the parties' arguments. As of March 13, 1998, Dudley had only two claims against one defendant (Mesa): (1) a claim for workers' compensation and vocational-rehabilitation benefits and (2) a tort claim alleging that Mesa had failed to properly maintain a safety device. Mesa and Fluke argue that the trial court's March 13, 1998, order dealing with Dudley's claims for "compensation and vocational benefits" arising under the Workers' Compensation Act, was, by its terms, a final order and that it adjudicated Dudley's claim based on § 25-5-11. Dudley, on the other hand, argues that on March 13, 1997, the trial court adjudicated only that portion of his complaint that sought workers' compensation and vocational-rehabilitation benefits. Our determination of the issue regarding the trial court's subject-matter jurisdiction as to the amendment filed after March 13, 1998, depends on which side's argument we accept. *1084 The trial court, by granting the defendants' motions to dismiss, necessarily held that its order entered on March 13, 1998, was a final judgment that ended Dudley's lawsuit, although the record shows that the court on that same date granted Dudley permission to amend his complaint.[1] We must decide whether the trial court, by entering the March 13, 1998, order, disposed of all of Dudley's claims. The trial court's subsequent dismissals of the claims against Mesa and Fluke suggest that the answer to this question is "yes," but the problem is complicated by the fact that when the trial court entered its March 13, 1998, order, it simultaneously granted Dudley permission to amend his complaint. We recognize that the trial court may be in a better position than we are to determine whether it intended to adjudicate all of the claims by its March 13, 1998, order, but we cannot ignore the language of the order itself or the trial court's conduct after it entered that order. The wording of the March 13, 1998, order and the trial court's allowing Dudley to amend his complaint strongly suggest that the trial court intended for a portion of the lawsuit to continue. This Court has specifically held that a claim based on the provisions of § 25-5-11 is a tort claim for damages, and is not a claim for workers' compensation benefits. In Hubbard v. Liberty Mutual Insurance Co., 599 So. 2d 20 (Ala.1992), we stated: 599 So. 2d at 22. Based on the foregoing, we conclude that the language used by the trial court in its March 13, 1998, order releasing Mesa from all claims for "compensation and vocational rehabilitation benefits" arising under the Workers' Compensation Act applied only to Dudley's claim for workers' compensation and vocational benefits. Therefore, Dudley's claim, which was pleaded based on § 25-5-11, survived. Consequently, based on this record, we conclude that the trial court's order that "[Mesa] be released and forever discharged from any and all claims for compensation and vocational rehabilitation benefits due or which may become due to the employee under the Workmen's Compensation *1085 Act of Alabama" did not adjudicate all the claims in Dudley's lawsuit.[2] We conclude that the trial court erred in determining that it lacked jurisdiction over Dudley's claims added by an amendment filed after March 13, 1998. The orders dismissing the claims against Mesa and Fluke that were filed subsequent to that order are reversed. The case is remanded for further proceedings consistent with this opinion. Our decision today should not be construed as an evaluation of the merits of Dudley's § 25-5-11 claim against Mesa. REVERSED AND REMANDED. HOUSTON, COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. HOOPER, C.J., and SEE, J., concur in part and dissent in part. HOOPER, Chief Justice (concurring in part and dissenting in part). I concur in the holding reversing the dismissal as to the defendant Fluke Corporation. I dissent from the holding reversing the dismissal as to the defendant Mesa Industries regarding the claim under § 25-5-11, Ala.Code 1975. The majority holds that the language of the March 13, 1998, order, which encompassed claims for "compensation and rehabilitation benefits" did not also encompass Dudley's claim seeking damages for an alleged failure to maintain a safety device, a claim recognized by § 25-5-11. As the majority states, this Court has previously held that a claim based on § 25-5-11 is a tort claim for damages and is not a claim for workers' compensation. As an initial matter, I note that the language in § 25-5-11 appears to provide for claims against third parties only; therefore, a claim against Mesa under that statute may be improper. However, Mesa did not raise that issue in its brief to this Court. Even if Dudley could pursue a claim against Mesa pursuant to § 25-5-11, his claim would be barred by the order approving the settlement and releasing Mesa. In Gates Rubber Co. v. Cantrell, 678 So. 2d 754 (Ala.1996), this Court held that a release pursuant to a settlement, which used language almost identical to that of the March 13, 1998, order in this case, also released the employer from a claim alleging retaliatory discharge (a claim based on § 25-5-11.1). The Court stated, in note 1, that damages for retaliatory discharge "`can be awarded in accordance [with] the general law of torts.'" 678 So. 2d at 755. (Quoting Caraway v. Franklin Ferguson Mfg. Co., 507 So. 2d 925, 926 (Ala.1987)). The Court went on to state that "a `settlement of any and all claims for compensation benefits due and rehabilitation or retraining benefits due' is `conclusive of any other claims,' unless there is evidence of fraud or the claim in issue is expressly excepted from the settlement agreement." 678 So. 2d at 756 (quoting Sanders v. Southern Risk Servs., 603 So. 2d 994, 995-96 (Ala.1992)). The Sanders case was similar to Cantrell in that in each the plaintiff was attempting to assert a retaliatory-discharge claim after releasing the employer from claims for benefits under the Workers' Compensation Act. The specific language in Cantrell released the employer from claims for "compensation and vocational rehabilitation benefits." 678 So. 2d at 754. The language in the Sanders settlement released the employer from claims for "compensation benefits due and rehabilitation or retraining benefits due." 603 So. 2d at 995. The order approving the settlement in the present case released Mesa from "all claims for compensation and vocational rehabilitation benefits." Dudley amended his complaint to assert claims of fraud and outrage against Mesa *1086 in connection with its handling of his workers' compensation claim. Based on the language in Cantrell, it appears that these claims would not be barred by the order releasing Mesa. However, because this Court has held that retaliatory-discharge claims are tort claims and that claims under § 25-5-11 are also tort claims, I disagree with the holding of the majority opinion. I do not see how the present case is distinguishable from Cantrell and Sanders. The majority reasons that because Dudley's claim under § 25-5-11 is a tort claim rather than a claim for workers' compensation, the claim is not encompassed in the order releasing Mesa. However, that was the exact issue in Cantrell and Sanders, wherein the Court held that a claim alleging retaliatory discharge, which is a tort claim, was encompassed by the release. Following the rationale of Cantrell and Sanders, I conclude that the release contained in the March 13, 1998, order in the present case also released Mesa from any § 25-5-11 claim Dudley had against Mesa based on a failure to maintain a safety device. However, the terms of the March 13, 1998, order releasing Mesa did not also cover Fluke, the third party joined as a defendant, and the claim against Fluke, therefore, was not subject to dismissal. Therefore, I concur in the reversal of the dismissal as to Fluke. I dissent from the reversal of the dismissal of the § 25-5-11 claim against Mesa. I concur as to the fraud and outrage claims against Mesa. SEE, J., concurs. [1] See Rule 54(b), Ala. R. Civ. P. ("[A]ny order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties...."). [2] Furthermore, there are no indications that the trial court, at that time, intended a full adjudication, because of the fact that when it entered its order it simultaneously granted Dudley's motion for leave to amend his complaint.

April 14, 2000

4a7447df-9880-4c1c-a42e-b716404ce98e

Kmart Corp. v. Bassett

769 So. 2d 282

1971910

Alabama

Alabama Supreme Court

769 So. 2d 282 (2000) KMART CORPORATION v. Christine BASSETT. 1971910. Supreme Court of Alabama. April 21, 2000. *283 John M. Milling, Jr., and Doy Leale McCall III of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellant. Robert L. Pittman of Beasley, Wilson, Allen, Crow & Methvin, P.C., Montgomery (brief on application for rehearing filed by Jere L. Beasley, Robert L. Pittman, and Scott T. McArdle of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery), for appellee. SEE, Justice. The opinion of November 19, 1999, is withdrawn, and the following opinion is substituted therefor. Christine Bassett sued Kmart Corporation ("Kmart"), seeking damages for personal injuries she sustained when the automatic entry doors at a Kmart store prematurely closed on her, causing her to fall and break her hip. After the first trial of her claims ended in a mistrial, the jury in a second trial awarded her $289,000 in damages; the trial court entered a judgment on that verdict. Because we hold that the trial court erred in denying Kmart's postverdict motion for a judgment as a matter of law, we reverse and remand. In January 1995, Christine Bassett, an 83-year-old woman who walked with the aid of a cane, went to a Kmart store in Montgomery. Bassett stepped on a rubber mat outside the store to open the automatic doors. The doors swung open, and she began walking into the store. When she was about one-third of the way onto the rubber safety mat inside the store, the doors began to close. Bassett *284 alleges that one of the doors struck her left hip and caused her to fall. In the fall, Bassett suffered a broken hip. After the accident, the store manager examined the doors. They worked properly and did not need to be repaired. In January 1996, Bassett sued Kmart,[1] alleging negligent or wanton maintenance or repair. The jury returned a verdict in favor of Kmart. The trial court, however, granted Bassett a new trial because, before the jury entered its deliberations, one of the jurors had gone to the store and had inspected the automatic doors. After the retrial, the court submitted to the jury only Bassett's claims alleging negligent maintenance or negligent repair.[2] The jury returned a verdict in favor of Bassett, awarding her $289,000 in damages. Kmart moved for a judgment as a matter of law or, alternatively, for a new trial or a remittitur. The motion was denied by operation of law, see Rule 59.1, Ala. R. Civ.P., and Kmart appealed. When reviewing a trial court's denial of a motion for a judgment as a matter of law ("JML"), this Court applies the same standard "used by the trial court in granting or denying the motion[ ] initially." Bussey v. John Deere Co., 531 So. 2d 860, 863 (Ala.1988). The denial of a defendant's motion for a JML is proper only when the plaintiff has presented substantial evidence to support each element of the plaintiff's claim. See Glenlakes Realty Co. v. Norwood, 721 So. 2d 174, 177 (Ala. 1998). "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870-71 (Ala.1989). In determining whether the nonmoving party presented substantial evidence, this Court, like the trial court, must view all evidence in the light most favorable to the nonmoving party. See Bussey, 531 So. 2d at 863. "It is a well-established rule of law in this state that in order to prove a claim of negligence a plaintiff must establish that the defendant breached a duty owed by the defendant to the plaintiff and that the breach proximately caused injury or damage to the plaintiff." Lowe's Home Centers, Inc. v. Laxson, 655 So. 2d 943, 945-46 (Ala.1994). The duty owed by a premises owner to an invitee is also well established: Armstrong v. Georgia Marble Co., 575 So. 2d 1051, 1053 (Ala.1991). This duty does not, however, convert a premises owner into an insurer of its invitees' safety. See Hose v. Winn-Dixie Montgomery, Inc., 658 So. 2d 403, 404 (Ala.1995). Moreover, the mere fact that a business invitee is injured does not create a presumption of negligence on the part of the premises owner. See id. Rather, a premises owner is liable in negligence only if it "fail[s] to use reasonable care in maintaining its premises in a reasonably safe manner." Id. Thus, in order to defeat Kmart's motion for a judgment as a matter of law on her negligence claim, Bassett had to present substantial evidence indicating that Kmart had failed to use reasonable care to maintain its automatic doors in a reasonably safe condition, Hose, 658 So. 2d at 404, and that Kmart's failure proximately caused the doors to malfunction in such a way as to injure her. Bassett, however, did not produce any evidence at trial to indicate what caused the automatic doors to malfunction as she entered the store. Kmart argues that Bassett failed to make out a prima facie case of negligence because, it argues, she failed to produce substantial evidence indicating that Kmart breached its duty of care to her. She argues that she produced substantial circumstantial evidence indicating that Kmart had negligently maintained the automatic doors. Specifically, she argues that she presented evidence indicating that the company that installed the doors sold maintenance contracts as part of its business; that Kmart had no maintenance contract for the doors; that Kmart had a policy of waiting until the doors needed repair or maintenance before calling someone to work on them; that the Kmart store manager, Doug Stanley, knew that the doors occasionally malfunctioned by failing to work at all; and that without preventive maintenance, automatic doors will malfunction or stop working properly. However, Bassett's evidence is insufficient to prove a breach of duty, an element of her negligence cause of action. She did not produce substantial evidence indicating that Kmart failed to maintain the automatic doors in a reasonably safe condition or that the maintenance Kmart provided was unreasonable. Bassett impliedly argues that Kmart's failure to have a preventive-maintenance contract was a breach of duty. However, Bassett's own expert, Jack Cherry, the owner of the door company that had installed the automatic doors, testified that he did not try to sell such a contract to Kmart because he did not think Kmart needed one. Cherry also testified that if the doors had been inspected six months before the date of Bassett's fall, that would have been reasonable maintenance on Kmart's part. Bassett's fall occurred slightly less than seven months after the most recent inspection. However, Cherry did not testify that a failure to inspect the doors for a period exceeding six months would have been unreasonable. Hence, Kmart's policy of not contracting with the door company for its preventive-maintenance program, but, instead, waiting until a door needed repair or maintenance and then calling for repairs, standing alone, is not substantial evidence of negligence.[3] Bassett also argues that she produced evidence that, under the doctrine of res ipsa loquitur, permitted the jury to infer that Kmart had negligently maintained the automatic doors. Specifically, she argues that evidence that the automatic doors closed while she was still standing on the inside mat is sufficient to allow the jury to infer that Kmart was negligent. *286 The trial court agreed with Bassett; it denied Kmart's motions for a judgment as a matter of law and instructed the jury on the doctrine of res ipsa loquitur. Kmart argues that the trial court erred in submitting Bassett's case to the jury under the res ipsa loquitur doctrine because, it argues, Bassett did not satisfy the requirements for applying the doctrine of res ipsa loquitur. Specifically, Kmart argues that Bassett failed to satisfy the second requirement for applying that doctrinethat she did not "foreclose the possibility that [the company that installed the door or another company that sometimes serviced the door] was negligent, that the safety mat itself was inherently defective, or ... that the alleged malfunction could have occurred even in the absence of any negligence." We agree. The res ipsa loquitur doctrine allows "an inference of negligence where there is no direct evidence of negligence." Ex parte Crabtree Industrial Waste, Inc., 728 So. 2d 155, 156 (Ala.1998). For the doctrine to apply, a plaintiff must show that: Crabtree Industrial Waste, 728 So. 2d at 156 (quoting Alabama Power Co. v. Berry, 254 Ala. 228, 236, 48 So. 2d 231, 238 (1950), and citing Ward v. Forrester Day Care, Inc., 547 So. 2d 410, 411 (Ala.1989), and Khirieh v. State Farm Mut. Auto. Ins. Co., 594 So. 2d 1220, 1223 (Ala.1992)). However, "[i]f one can reasonably conclude that the accident could have happened without any negligence on the part of the defendant[], then the res ipsa loquitur presumption does not apply." Crabtree Industrial Waste, Inc., 728 So. 2d at 158. Thus, the issue is whether the malfunctioning of Kmart's automatic doors is something that "according to common knowledge and the experience of mankind... could not have happened if those having control of [the doors] had not been negligent." A court may take judicial notice of certain facts that are within the common knowledge. See Henry v. Butts, 591 So. 2d 849 (Ala.1991); City of Birmingham v. Martin, 228 Ala. 318, 153 So. 235 (1934); Tombrello v. State, 431 So. 2d 1355 (Ala.Crim.App.1983). Whether a fact is a matter of common knowledge is an issue to be determined by the court. See Henry, 591 So. 2d at 852; O'Barr v. Feist, 292 Ala. 440, 296 So. 2d 152 (1974); Roberts Const. Co. v. Henry, 265 Ala. 608, 93 So. 2d 498 (1957). Bassett argues, relying on Rose v. Port of New York Authority, 61 N.J. 129, 137, 293 A.2d 371, 375 (1972), that it is common knowledge and the experience of the community that the malfunctioning of an automatic door is "unusual." See also Landmark Hotel & Casino, Inc. v. Moore, 104 Nev. 297, 300, 757 P.2d 361, 363-64 (1988) (citing Rose); Brown v. Scrivner, Inc., 241 Neb. 286, 290, 488 N.W.2d 17, 19 (1992) (citing Rose). In Rose, the New Jersey court held that evidence indicating that an automatic door malfunctioned is sufficient to allow the trier of fact to infer, under the doctrine of res ipsa loquitur, that the premises owner was negligent. The New Jersey court reasoned that because "[w]hat happened to the plaintiff [was] ... unusual and not commonplace[,] [i]t strongly suggest[ed] a malfunction which in turn suggest[ed] neglect." 61 N.J. at 136-37, 293 A.2d at 375.[4] *287 We find the New Jersey court's reasoning unpersuasive.[5] The New Jersey court inferred negligence on the part of the premises owner from the inference of the door's malfunction. Such reasoning violates Alabama's rule against deriving an inference from another inference. "`[A]n inference cannot be derived from another inference.' An inference must be based on a known or proved fact." Khirieh v. State Farm Mut. Auto. Ins. Co., 594 So. 2d 1220, 1224 (quoting Malone Freight Lines, Inc. v. McCardle, 277 Ala. 100, 167 So. 2d 274 (1964)). Even if the door's malfunction were proved by direct evidence (and, thus, was not an inference), a mere malfunction would be insufficient to invoke the doctrine of res ipsa loquitur under Alabama law, because "one can reasonably conclude that the accident could have happened without any negligence on the part of the defendant[]." Crabtree Industrial Waste, Inc., 728 So. 2d at 158. For example, the malfunction could have occurred because the doors were defective or because the company that serviced the doors had been negligent. Also, "mechanical devices, such as [the automatic doors] here involved, get out of working order, and sometimes become dangerous and cause injury without negligence on the part of anyone." Darlington Corp. v. Finch, 113 Ga.App. 825, 827 149 S.E.2d 861, 862 (1966) (holding that the doctrine of res ipsa loquitur did not apply to allow, from the fact that automatic elevator doors closed on an invitee, the inference that the building owner was negligent). Therefore, we do not consider it to be common knowledge that automatic doors cannot malfunction unless the premises owner is negligent in maintaining the doors. See Roberts Constr. Co. v. Henry, supra, 265 Ala. 608, 93 So. 2d 498. The doctrine of res ipsa loquitur can still be applied if expert testimony is presented.[6] See W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 39, at 247 (5th ed. 1984) (stating that "[e]ven where such a basis of common knowledge is lacking, ... expert testimony may provide a sufficient foundation" for the inference of negligence). Therefore, we must consider whether Bassett produced sufficient expert testimony indicating that Kmart's automatic doors could not have malfunctioned unless Kmart had failed to use reasonable care to keep its automatic doors in a safe condition. Jack Cherry testified by deposition that, "without preventive maintenance, eventually the doors are going to malfunction or stop working properly." That is the extent of Cherry's testimony as to the circumstances in which automatic doors malfunction. That testimony is insufficient to show that automatic doors cannot malfunction unless the premises owner fails to use reasonable care to keep them in a safe condition. Therefore, Bassett did not satisfy *288 the second requirement for applying the doctrine of res ipsa loquitur, because she did not show that "according to common knowledge and the experience of mankind [or according to expert testimony] the accident could not have happened" absent Kmart's failure to "use reasonable care in maintaining its premises in a reasonably safe manner." Hose, 658 So. 2d at 404.[7] We conclude that the doctrine of res ipsa loquitur does not apply to the facts of this case. Because Bassett did not produce substantial evidence indicating that Kmart breached its duty to her, the trial court erred in denying Kmart's motion for a judgment as a matter of law. OPINION OF NOVEMBER 19, 1999, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED. HOUSTON, LYONS, BROWN, and JOHNSTONE, JJ., concur. HOOPER, C.J., and MADDOX, COOK, and ENGLAND, JJ., dissent. HOOPER, Chief Justice (dissenting). I must respectfully dissent. I believe the doctrine of res ipsa loquitur applies in this case. I also believe Ms. Bassett produced sufficient evidence of Kmart's negligence to support the jury's finding. The majority of jurisdictions faced with cases like this one have decided that the doctrine of res ipsa loquitur applies to automatic-door malfunctions. However, this Court has chosen to follow the reasoning of the minority of courts holding that the doctrine does not apply. I believe today's holding departs from the traditional view of res ipsa loquitur and runs counter to the rationale behind the development of that doctrine. Alabama Power Co. v. Berry, 254 Ala. 228, 48 So. 2d 231 (1950), is the most frequently cited Alabama case on the doctrine of res ipsa loquitur. In that case, the Court stated: 254 Ala. at 236, 48 So. 2d at 238. The doctrine of res ipsa loquitur should apply to this case. The Restatement (Second) of Torts, § 328 D, Cmt. e (1965), suggests: "The plaintiff need not ... conclusively exclude all other possible explanations.... It is enough that the facts proved reasonably permit the conclusion that negligence is the more probable explanation...." Members of the public routinely use automatic doors without sustaining injury. Ms. Bassett should not have to prove that automatic doors cannot malfunction in the absence of negligence; she should have only to present facts that would permit the jury to conclude that negligence was the more probable explanation. In this case, the jury could reasonably conclude that the closing of the automatic door on Ms. Bassett was the kind of sudden, unusual malfunction that would not normally occur in the absence of negligence. In addition, Ms. Bassett should not be required to disprove all other possible reasons for the malfunction, as the majority suggests. I agree with the rationale of the Supreme Court of Nebraska: Brown v. Scrivner, Inc., 241 Neb. 286, 289, 488 N.W.2d 17, 19 (1992) (quoting Anderson v. Service Merchandise Co., 240 Neb. 873, 880, 485 N.W.2d 170, 176 (1992)). Kmart admitted that it was responsible for the maintenance and operation of the doors. It is common knowledge that automatic doors do not normally close on people; this common knowledge suggests negligence on the part of the entity in control of the doors, Kmart. Ms. Bassett's injury resulted from the accident. Therefore, the question whether the doctrine of res ipsa loquitur was to be applied was properly submitted to the jury. In addition, Ms. Bassett presented sufficient evidence to support the jury's verdict finding Kmart negligent in maintaining its automatic doors. A judgment as a matter of law is properly entered only when "`"there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ."'" Griggs v. Finley, 565 So. 2d 154, 159 (Ala.1990) (quoting earlier cases). A motion for a judgment as a matter of law should be denied when "the nonmoving party has produced substantial evidence to support each element of his claim." Cessna Aircraft Co. v. Trzcinski, 682 So. 2d 17, 19 (Ala.1996). "Substantial evidence" is defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). The fact that this Court is divided on the issue whether Ms. Bassett provided sufficient evidence of negligence shows that questions of fact existed upon which reasonable people could differ. I consider *290 myself and the other members of this Court to be fair-minded persons. I also feel that it is reasonable to infer that Kmart Corporation breached its duty to its customers by not conducting preventive maintenance on its automatic doors. The evidence indicated, without dispute, that Kmart's policy was to call for service on its automatic doors only when they malfunctioned. Kmart never had a service contract on its automatic doors, nor did it ever have any preventive-maintenance work done on the doors. It seems to me that reasonable care would require some sort of preventive maintenance to ensure that the doors functioned properly, especially given the evidence of malfunctions in the past. Even if there had been no prior malfunctions of the kind that caused Ms. Bassett's fall, Kmart knew, or should have known, that automatic doors are mechanical objects that, without preventive maintenance, will malfunction or stop working properly. The majority emphasizes the fact that the automatic doors had been inspected slightly less than seven months before Ms. Bassett's accident occurred and the fact that Jack Cherry, the owner of Columbus Automatic Door, Inc., testified that having an inspection of the doors at some point within six months prior to the accident would have been reasonable maintenance. However, Mr. Cherry also testified that his company provides maintenance-service contracts on the doors it installs and that under these contracts his company would normally check the doors three times a year. Mr. Cherry testified that these service contracts provide preventive maintenance that makes the doors work better. The jury could have reasonably inferred from Mr. Cherry's testimony that Kmart should have had preventive-maintenance checks on its automatic doors every four months, despite the fact that Mr. Cherry thought it not unreasonable that the doors had most recently been checked at a time six months before Ms. Bassett's accident occurred. In reviewing an order denying a motion for a judgment as a matter of law, we "must entertain such reasonable inferences as the jury would have been free to draw." Motion Indus., Inc. v. Pate, 678 So. 2d 724, 726 (Ala.1996). Mr. Cherry stated on cross-examination that he did not think Kmart needed a maintenance contract, because, he said, the doors of the Kmart store would not deteriorate as fast as the doors at a grocery store would. Again, I believe I am a fair-minded person, and I disagree with Mr. Cherry's opinion. This accident took place shortly after the Christmas shopping season, and it is reasonable to expect that during that time of the year automatic doors would undergo a significant amount of deterioration. Mr. Cherry did not base his opinion (that Kmart did not need a maintenance contract) on an actual examination of Kmart's automatic doors. Furthermore, the jury is not bound by Mr. Cherry's testimony and is free to conclude for itself whether it was reasonable for Kmart not to have regular maintenance performed on its automatic doors. "[O]pinion testimony of an expert witness is binding upon a jury only when it concerns a subject exclusively within the knowledge of experts and the testimony is uncontroverted." Allen v. Turpin, 533 So. 2d 515, 517 (Ala.1988). Whether Kmart was negligent is precisely the issue the jury was to determine; therefore, that issue obviously did not concern a subject exclusively within the knowledge of experts. The uncontroverted evidence indicating that Kmart never had a maintenance contract for its automatic doors and never serviced the doors until they mal-functioned is sufficient for a reasonable person to conclude that Kmart was negligent in maintaining its automatic doors. Therefore, Kmart was not entitled to a judgment as a matter of law. The jury obviously found enough evidence of negligence to hold Kmart liable for Ms. Bassett's injuries. The verdict of a jury is presumed to be correct. King v. W.A. Brown & Sons, Inc., 585 So. 2d 10 (Ala.1991). "A judgment based upon a *291 jury verdict and sustained by the denial of a post-judgment motion for a new trial will not be reversed unless it is plainly and palpably wrong and unjust." Motion Indus., Inc. v. Pate, 678 So. 2d 724, 732 (Ala. 1996). The jury could have reasonably concluded that Kmart was negligent in failing to periodically service its automatic doors. For these reasons, I would grant the plaintiffs application for rehearing and would affirm the judgment of the trial court. MADDOX and ENGLAND, JJ., concur. COOK, Justice (dissenting). I respectfully dissent. The doctrine of res ipsa loquitur is entirely proper in sliding-door cases. In Khirieh v. State Farm Mutual Automobile Insurance Co., 594 So. 2d 1220, 1223 (Ala.1992), this Court said: (Citations omitted.) The plaintiff was knocked down and injured while walking through the sliding doors of a Kmart store. There is little, if any, dispute that the doors malfunctioned. However, there was no evidence as to what caused the malfunction. The trial judge instructed the jury on the doctrine of res ipsa loquitur, and the jury returned a verdict in favor of the plaintiff for $289,000. The majority reverses, holding that the doctrine does not apply in sliding-door cases. The main opinion acknowledges, however, that a number of jurisdictions have held otherwise. See, e.g., Rose v. Port of New York Authority, 61 N.J. 129, 293 A.2d 371 (1972). There were two problems of proof in that case. First, the plaintiff was knocked unconscious in the doorway and had no definite knowledge of what had hit him. Second, assuming that the sliding door had hit him, he was unable to show why. The trial court entered a judgment on a jury verdict for the plaintiff in the amount of $12,000. The New Jersey Supreme Court concluded that "it was [not] necessary for the plaintiff, in order to present a prima facie case, to prove more than he did." 61 N.J. at 136-37, 293 A.2d at 375. It explained: Id. (Emphasis added.) (Citations omitted.) See also Brewster v. United States, 542 N.W.2d 524 (Iowa 1996); Tarara v. Dayton Hudson Corp., 36 Mass.App.Ct. 942, 629 N.E.2d 1352 (1994); Landmark Hotel & Casino, Inc. v. Moore, 104 Nev. 297, 757 P.2d 361 (1988); Madden v. Carolina Door Controls, Inc., 117 N.C.App. 56, 449 S.E.2d 769 (1994). In this case, Kmart was the only entity in control of the instrument. It did not even have a maintenance contract with anyone to service its doors. If a plaintiff cannot use the doctrine of res ipsa loquitur in such cases as suggested in Rose, a premises owner has no incentive to maintain doors so as to prevent a malfunction and injury to the public. For these reasons, I dissent. [1] Bassett also sued the company that had installed the automatic doors. Bassett, however, later dismissed the door company, and her claims against that company are not before this Court. [2] It is not clear from the record when Bassett's wantonness claims were dismissed; however, she did not request a jury instruction on wantonness, and the trial court did not give one. In her application for a rehearing, Bassett argues that this Court should affirm the trial court's judgment because, she argues, she presented substantial evidence to support a verdict in her favor on her claim of negligent failure to warn. Bassett raises this argument for the first time on her application for rehearing. Bassett did not assert that theory of recovery in her complaint, and it was not tried below or submitted to the jury. It is well established that this Court will not consider a case on a theory different from that on which it was tried below. See Weston v. Weston, 269 Ala. 595, 599, 114 So. 2d 898, 900 (1959); Auto-Owners Ins. Co. v. Stokes, 284 Ala. 537, 544, 226 So. 2d 320, 326 (1969); Smiths Water Auth. v. City of Phenix City, 436 So. 2d 827, 830-31 (Ala.1983); see also Union Springs Tel. Co. v. Green, 285 Ala. 114, 117, 229 So. 2d 503, 505 (1969) ("Parties are restricted on appeal to the theory on which the case is prosecuted or defended in the court below, and where both parties act upon a particular theory of the cause of action, ... they will not be permitted to depart therefrom when the case is presented for appellate review."). [3] This case would be quite different if Cherry had been asked about, and had described, a point beyond which Kmart's failure to inspect the doors would have been unreasonable maintenance and if that period had elapsed before Bassett's accident occurred; however, that case is not before us. [4] In support of its conclusion that the doctrine of res ipsa loquitur applied, the Rose court cited a previous New Jersey slip-and-fall case in which the doctrine of res ipsa loquitur had been held to apply. See Rose, 61 N.J. at 137, 293 A.2d at 375 (citing Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 221 A.2d 513 (1966). In contrast, this Court has consistently held that, under Alabama law, the doctrine of res ipsa loquitur is not applicable in slip-and-fall cases. See, e.g., Ex parte Mountain Top Indoor Flea Market, Inc., 699 So. 2d 158 (Ala.1997); Riverview Reg'l Med. Ctr., Inc. v. Williams, 667 So. 2d 46 (Ala. 1995); Howard v. Bruno's, Inc., 567 So. 2d 257 (Ala.1990); Brown v. Autry Greer & Sons, Inc., 551 So. 2d 1049 (Ala.1989); Ex parte Travis, 414 So. 2d 956 (Ala.1982); Tice v. Tice, 361 So. 2d 1051, 1052 (Ala.1978); Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 213 So. 2d 211 (1968). [5] The other cases on which Bassett relies follow Rose, and we find them equally unpersuasive. See Brewster v. United States, 542 N.W.2d 524 (Iowa 1996); Tarara v. Dayton Hudson Corp., 36 Mass.App. 942, 629 N.E.2d 1352 (1994); Landmark Hotel & Casino, Inc. v. Moore, 104 Nev. 297, 757 P.2d 361 (1988). We note that in Madden v. Carolina Door Controls, Inc., 117 N.C.App. 56, 449 S.E.2d 769 (1994), on which Bassett also relies, the Court of Appeals of North Carolina refused to consider whether the trial court correctly instructed the jury on the res ipsa loquitur doctrine, because at trial the defendant did not object to the instruction. 117 N.C.App. at 58, 449 S.E.2d at 770-71. [6] Indeed, "this court [has] held that it is error to admit expert opinion evidence on `a matter of common knowledge.'" Roberts Constr. Co. v. Henry, 265 Ala. at 618, 93 So. 2d at 507. [7] Our conclusion that the doctrine of res ipsa loquitur does not apply in this case is in accord with the holdings of the Supreme Court of New Mexico and the Court of Appeals of Georgia in similar automatic-door cases. See Hisev v. Cashway Supermarkets, Inc., 77 N.M. 638, 426 P.2d 784 (N.M.1967); Johnston v. Grand Union Co., 189 Ga.App. 270, 375 S.E.2d 249 (1988). In Hisey, the Supreme Court of New Mexico held that the doctrine of res ipsa loquitur did not apply to permit the trier of fact to infer negligence on the part of a supermarket operator from the fact that its automatic doors malfunctioned by suddenly closing and striking a store patron. 77 N.M. at 640, 426 P.2d at 786. The Court reasoned that "[t]he absence of any evidence, or reasonable inference to be drawn from evidence that this accident is the kind which ordinarily does not occur in the absence of the negligence of someone alone defeats the application of the doctrine of res ipsa loquitur." Id. Furthermore, "[t]he fact that the door had been operating properly before the accident and that it thereafter operated normally without any repairs being required clearly fails to sustain an inference that the isolated malfunction would not have occurred but for the defendant's negligence." Id. In Johnston, the Court of Appeals of Georgia held that "[t]he solitary fact that [the store's automatic doors] closed unexpectedly on the plaintiff on one occasion, for no reason that has been ascertained, does not constitute any evidence from which it can be inferred that the store knew or should have known the doors might close unexpectedly." 189 Ga. App. at 270, 375 S.E.2d at 250. Furthermore, in Johnston, there was "no evidence the store was negligent by any failure to inspect the doors or keep them in repair." Id. The facts in the present case are quite similar to those in Hisey and Johnston. In both of those cases, automatic doors malfunctioned by closing prematurely. In both of those cases, the doors worked properly after the isolated malfunction and did not need to be repaired. In neither case did the plaintiff produce evidence indicating that the defendant had breached its duty of care to the store patron.

April 21, 2000

ef5c9397-9d9f-4aad-9685-041d29a93647

Ex Parte Grau

791 So. 2d 345

1981601

Alabama

Alabama Supreme Court

791 So. 2d 345 (2000) Ex parte George Tucker GRAU. (Re George Tucker Grau v. State). 1981601. Supreme Court of Alabama. April 7, 2000. James M. Byrd, Mobile, for petitioner. Bill Pryor, atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for respondent. PER CURIAM. George Tucker Grau filed in the Baldwin Circuit Court a petition pursuant to Rule 32, Ala. R. Crim.P., seeking postconviction relief based on a claim that at his criminal trial he had had ineffective assistance of counsel. The circuit court denied the petition. The Court of Criminal Appeals affirmed the denial, without opinion. Grau v. State (No. CR-97-2274, April 30, 1999) 768 So. 2d 1021 (Ala.Crim.App.1999) (table). We granted Grau's petition for certiorari review. Because the circuit court did not make specific findings of fact in accordance with Rule 32.9, Ala. R. Crim.P., we reverse the judgment of the Court of *346 Criminal Appeals and remand the case for further proceedings. A jury convicted Grau of possession of a controlled substance (cocaine), a violation of Ala.Code 1975, § 13A-12-212, and possession of drug paraphernalia, a violation of § 12-260(c). The arresting officer found the cocaine and the drug paraphernalia in the pocket of Grau's companion, Holly Simmons. To show that Grau had had control of these items, the prosecution presented evidence indicating that Grau had used the cocaine and the drug paraphernalia shortly before he was arrested.[1] Grau denied that he had used the cocaine and denied knowing that Ms. Simmons was in possession of the cocaine or the drug paraphernalia. The Baldwin Circuit Court sentenced Grau to six years' imprisonment and granted him probation. The Court of Criminal Appeals affirmed his conviction, without opinion. Grau v. State (No. CR-94-0403, May 5, 1995) 678 So. 2d 809 (Ala. Crim.App.1995) (table). This Court, without opinion, denied certiorari review. Ex parte Grau, (No. 1941596, November 9, 1995) 675 So. 2d 562 (Ala.1995) (table). Grau was represented at trial and on appeal by the same attorney. Later, with different counsel, Grau petitioned for postconviction relief pursuant to Rule 32, Ala. R.Crim.P., claiming that his trial counsel had been ineffective. See Ex parte Besselaar, 600 So. 2d 978, 979 (Ala.1992). Specifically, Grau asserted that his trial counsel should have subpoenaed a witness to a drug test Grau had taken three or four days after he was arrested. Grau alleged that the drug test indicated there was no cocaine in his system at the time of the test. According to Grau, that witness's expert testimony would have indicated that, because there was no cocaine in Grau's system at the time of the test, Grau could not have ingested cocaine shortly before his arrest. Grau also asserted that his trial counsel should have subpoenaed Simmons to establish that he did not use the cocaine and did not know that Simmons was in possession of the cocaine and the drug paraphernalia. The circuit court denied Grau's petition, and the Court of Criminal Appeals affirmed, with an unpublished memorandum. Grau argues that his trial counsel was ineffective in failing to subpoena the witness to the drug test and in failing to subpeona Simmons, because both of them, he says, would have refuted the State's only evidence indicating that Grau was in constructive possession of the cocaine and the drug paraphernaliathe evidence that he had used those items.[2] However, because the circuit court did not make specific *347 findings of fact, any review of Grau's claims by this Court would be premature. See Rule 32.9, Ala. R.Crim. P. "Rule 32.9(d), Ala. R.Crim. P., requires that if an evidentiary hearing is conducted on the Rule 32 petition, `[t]he court shall make specific findings of fact relating to each material issue of fact presented.'" Anglin v. State, 719 So. 2d 855, 857 (Ala.Crim.App.1996)(opinion on return to remand) (emphasis and alteration in Anglin). "In addition [to the specific findings of fact], the basis of the trial court's ruling, whether procedural or on the merits, must be clear." Jones v. State, 709 So. 2d 498, 498 (Ala.Crim.App.1996) (citing Henderson v. State, 570 So. 2d 879 (Ala. Crim.App.1990)). "A statement of the basis of the trial court's decision is essential to afford the appellant due process." Owens v. State, 666 So. 2d 31, 32 (Ala.Crim. App.1994). Although the circuit court held an evidentiary hearing on Grau's claims, the only order that court entered is this notation in the case action summary sheet: "Petition for relief from conviction or sentence denied." Accordingly, the judgment of the Court of Criminal Appeals is reversed and the case is remanded for that court to remand the case for the circuit court to enter an order pursuant to Rule 32.9, Ala. R.Crim. P., making specific findings of fact as to each issue of fact presented and clearly stating the basis of its ruling on the petition. Rule 32.9, Ala. R.Crim. P.; Anglin, 719 So. 2d at 857; Pardue v. State, [Ms. CR-97-0551, Dec. 18, 1998] ___ So.2d ___ (Ala.Crim.App.1998). The trial court may, of course, "conduct such further proceedings or take such other evidence as it deems necessary." Pardue, ___ So.2d at ___. If, on the remand, the circuit court holds an additional hearing, then "the [circuit court's] return to remand shall include a transcript of the remand proceedings, and the [circuit] court's specific written `findings of fact relating to each material issue of fact presented' at that hearing." Pardue, ___ So.2d at ___. The judgment of the Court of Criminal Appeals is reversed, and the case is remanded for that court to remand for further proceedings in the circuit court consistent with this opinion. REVERSED AND REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] Precisely what evidence the State presented to the jury is not contained in the record now before this Court. The record before us on this review of the ruling on the Rule 32 petition does not include the record of the proceedings had in regard to Grau's conviction and sentence. [2] We note that the State need not show "use" of a controlled substance or drug paraphernalia to show "possession" of these items, see Ala.Code 1975, § 13A-12-212; § 13A-5-7(a)(1); Self v. State, 564 So. 2d 1023, 1026 (Ala.Crim.App.1989), cert. quashed, 564 So. 2d 1035 (Ala.1990) (holding that the three elements necessary to establish possession of a controlled substance are: "(1) actual or potential physical control, (2) intention to exercise dominion and (3) external manifestations of intent and control"). In this case, however, the State's only evidence indicating Grau's "possession" of either a controlled substance or drug paraphernalia was the evidence of his "use" of these items. Thus, Grau's use of the cocaine was an essential element of the State's case against him.

April 7, 2000

3bfdb9fc-2739-4a68-9b9d-f4202b03c23b

Ex Parte Dunlop Tire Corp.

772 So. 2d 1167

1981219

Alabama

Alabama Supreme Court

772 So. 2d 1167 (2000) Ex parte DUNLOP TIRE CORPORATION. (Re Kelly M. Morrow v. Dunlop Tire Corporation.) 1981219. Supreme Court of Alabama. April 28, 2000. *1168 Dennis Riley of Morring, Schrimsher & Riley, Huntsville, for petitioner. J. Zach Higgs, Jr., and John R. Campbell of Higgs & Emerson, Huntsville, for respondent. SEE, Justice. We granted Dunlop Tire Corporation's petition for certiorari review of the decision of the Court of Civil Appeals reversing the trial court's judgment in this workers' compensation case. Morrow v. Dunlop Tire Corp., 772 So. 2d 1161 (Ala. Civ.App.1999). The trial court awarded Dunlop's employee, Kelly M. Morrow, benefits for the loss of her right arm, in accordance with the schedule in Ala.Code 1975, § 25-5-57(a)(3); it did not award her benefits for an injury to her body as a whole, which she had argued she was entitled to. The Court of Civil Appeals held that the trial court's finding that Morrow suffered an injury to her arm, and not to her body as a whole, was not supported by substantial evidence. The trial court also found that a second injury to her right arm was not a compensable injury. The Court of Civil Appeals held that that finding also was not supported by substantial evidence. Morrow was employed by Dunlop Tire Corporation as a master tire builder. Her right forearm was crushed on March 16, 1996, when it was drawn into a tire-building machine. The bones in her arm were fractured and fragmented. Dr. Louis G. Horn performed surgery to repair Morrow's arm. He reattached the bone fragments with plates and screws. Morrow returned to work on April 17. She tried to resume her work as a master tire builder, but she could not make the production quota because she had difficulty cutting the rubber used to make tires. She was later reassigned to a light-duty clerical position. On April 14, 1997, Dr. Horn performed a second surgery to remove the plates and screws in Morrow's arm. Dr. Horn testified that he advised Morrow to increase the use of her arm gradually over six weeks because areas under the plates and around the screw holes would be weak for that period. According to Dr. Horn, Morrow appeared to be making regular progress after the second surgery. She returned to work on May 12. On May 14, 1997, Morrow tripped and fell while carrying a basket of laundry at her home. She again fractured her right arm. According to Dr. Horn, the fracture was a nondisplaced fracture through one of the screw holes. Dr. Horn placed Morrow's arm in a cast. She returned to work on August 11. Morrow again attempted to resume her work as a master tire builder, but she was again unable to meet production *1169 quotas because of the difficulty she had cutting rubber. Morrow testified at trial that when she attempted to cut rubber, her arm would begin to hurt and her wrist would give out. She described the sensations in her arm as numbness and tingling in the top of her hand and on the top of her forearm, stiffness in her wrist, and numbness and stiffness up into her shoulder and neck. She also testified that when she lifts objects such as a gallon of milk or a pot on the stove she has tingling pain in her wrist and up her forearm to her elbow. She described the sensation as a pulling or pressure through her arm. She also explained that when lifting items, such as a pot on the stove, she has to compensate for the loss of grip strength in her right hand by using her left hand as well. Morrow explained that her right hand "feels like it's got extra skin, which I can feel hot and cold, it's just not as sensitive, I guess, as my left hand. And it's like your foot being asleep, you know, if you hit it, it's uncomfortable." She testified that she could not apply steady pressure with her right hand, such as the pressure needed to wash a car or to garden. She further testified that when she was able to complete a task that required the application of pressure with her right hand, her right hand and wrist would be stiff and sore the next day. The trial court concluded that Morrow had suffered a compensable injury to her right arm and awarded her benefits according to the schedule in Ala.Code 1975, § 25-5-57(a)(3). The trial court also determined that Morrow's second injury to her arm was not a compensable injury. Morrow appealed to the Court of Civil Appeals, arguing that the effects of her injury extended beyond her arm and that she was therefore entitled to an award in excess of the statutorily prescribed amount for an injury to the arm. See Bell v. Driskill, 282 Ala. 640, 213 So. 2d 806 (1968). She also argued that her second injury was a compensable injury because her first injury contributed to it. The Court of Civil Appeals reversed the judgment of the trial court, holding: (1) that the trial court's finding that Morrow's injury was to a scheduled member, rather than one to her body as a whole, was not supported by substantial evidence; and (2) that the trial court's finding that Morrow's first injury did not cause her second injury was not supported by substantial evidence.[1] In its petition to this Court, Dunlop argues that the record contains substantial evidence to support the trial court's finding that Morrow's injury was to a scheduled member, specifically, her arm, rather than to her body as a whole. We agree. Under Ala.Code 1975, § 25-5-57(a)(3)a 13., the compensation for permanent partial disability for the loss of an arm is 66 2/3% of the worker's average weekly earnings, for 222 weeks. The Court of Civil Appeals, however, held that the trial court's finding that Morrow's injury was to a scheduled member was not supported by substantial evidence, and that she was entitled to compensation in accordance with Ala.Code 1975, § 25-5-57(a)(3)g. Under that section, the compensation for permanent partial disability is "66 2/3 percent of the difference between the average weekly earnings of the worker at the time of the injury and the average weekly earnings he or she is able to earn in his or her partially disabled condition," for a maximum of 300 weeks. In Bell v. Driskill, supra, this Court held that when the effect of an injury to a scheduled member 282 Ala. at 646, 213 So. 2d at 811. The Court of Civil Appeals concluded that the effects of Morrow's injury met the Bell test. Whether a particular worker's injury meets the Bell test is a question of fact, to be decided by the trial court "based on a preponderance of the evidence." Ala.Code 1975, § 25-5-81(c). "In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence." Ala.Code 1975, § 25-5-81(e)(2). The Court of Civil Appeals may not "weigh the evidence before the trial court." Edwards v. Jesse Stutts, Inc., 655 So. 2d 1012, 1014 (Ala.Civ.App.1995). In reversing the trial court's judgment, the Court of Civil Appeals held that "`if the effects of an arm injury extend to the hand, then one is not limited to the scheduled benefits provided for the loss of an arm.'" Morrow v. Dunlop Tire Corp., 772 So. 2d at 1164 (quoting Cagle v. Dunlop Tire Corp., 681 So. 2d 611, 613 (Ala.Civ. App.1996), in turn quoting Robbins Tire & Rubber Co. v. Elliott, 598 So. 2d 931, 933 (Ala.Civ.App.1992)). This rule is inconsistent with the plain meaning of Ala.Code 1975, § 25-5-57(a), and with logic. Clearly, the loss of an arm includes the loss of a hand. See, e.g., Flicker v. Mac Sign Co., 252 N.Y. 492, 170 N.E. 118 (1930). In Flicker, Chief Judge Cardozo explained that "[w]ith the reservation for greater prudence of exceptional conditions, the scheduled compensation for loss of the larger member must be accepted as compensation for the loss of its component parts." 252 N.Y. at 494, 170 N.E. at 118. Accord Nabb v. Haveg Indus., Inc., 265 A.2d 320 (Del.Super.Ct.1969) (holding that loss of an arm includes loss of the hand); Armstrong Cork Co. v. Sheppard, 222 Miss. 359, 370, 76 So. 2d 225, 229 (1954) ("[W]here multiple injuries are sustained by the employee in a single accident, affecting directly two members of the same extremity, if the injuries result in some disability to the greater member other than that occasioned by the disability to the lesser member, the disability rating should be for loss of use of the greater member."). Therefore, to the extent that Cagle and Robbins Tire & Rubber Co. stand for the proposition that "if the effects of an arm injury extend to the hand, then one is not limited to the scheduled benefits provided for the loss of an arm," those cases are overruled. After stating that a worker is not limited to recovery for the loss of an arm when the effect of an arm injury extends to the hand, the Court of Civil Appeals stated that symptoms similar to Morrow's "have been held to take an injury to a scheduled member outside the statute and permit an award based on the worker's loss of ability to earn." Morrow v. Dunlop Tire Corp., 772 So. 2d at 1164. The Court of Civil Appeals concluded that Morrow's injuries were similar to the workers' injuries in Robbins Tire & Rubber Co. and United Technologies v. Mims, 549 So. 2d 981 (Ala. Civ.App.1989). In Robbins Tire & Rubber Co. and in Mims the trial court found that the worker's injury met the Bell test, and in each case the Court of Civil Appeals affirmed the trial court's judgment. The Court of Civil Appeals' reliance on Robbins Tire & Rubber Co. and Mims is misplaced. In each of those cases, the Court of Civil Appeals affirmed the trial court's judgment, holding that the trial court's finding that the injury met the Bell test was supported by the evidence.[2] The conclusion that the evidence in Robbins Tire & Rubber Co. and in Mims supported *1171 the trial courts' findings in those cases, however, does not, in logic, imply the Court of Civil Appeals' conclusion that the evidence in the present case does not support the trial court's finding in this case. The trial court's finding is conclusive if it is supported by substantial evidence. See § 25-5-81(e)(2). The evidence in the record indicates that Morrow injured her right arm and that her use of that arm has been permanently diminished. The evidence in the record does not compel the finding that her injury "produce[d] a greater or more prolonged incapacity than that which naturally results from" the loss of an arm, or that it "cause[d] an abnormal and unusual incapacity with respect to" an arm. Bell, 282 Ala. at 646, 213 So. 2d at 811. Therefore, the trial court's finding that Morrow's injury was to her arm rather than to her body as a whole is supported by substantial evidence; we reverse the judgment of the Court of Civil Appeals to the extent it held otherwise. Dunlop also argues that the Court of Civil Appeals erred in reversing the trial court's ruling that Morrow's second injury was not compensable. The trial court found that Morrow had "failed to establish a causal connection between the two accidents which would render the second accident which occurred at home compensable." Under the "successive-compensable-injury" test, the issue is not whether the primary injury caused the second accident. See Ex parte Pike County Comm'n, 740 So. 2d 1080, 1084 (Ala. 1999). Rather, this Court has held: Id. In this case, the trial court did not consider whether the second injury was a natural consequence of the primary injury, but considered only whether the primary injury caused the accident that produced the second injury. The Court of Civil Appeals correctly reversed the trial court's judgment insofar as it related to Morrow's claim based on the second injury, but it erred in directing the trial court to enter a judgment holding that the second injury was compensable. The Court of Civil Appeals erred by independently weighing the evidence. See Ex parte Alabama Ins. Guar. Ass'n, 667 So. 2d 97, 99 (Ala.1995). The trial court's judgment holding that Morrow suffered an injury to a scheduled member was supported by substantial evidence; therefore, we reverse that portion of the judgment of the Court of Civil Appeals directing the trial court to render a judgment awarding Morrow compensation for an injury to the body as a whole. The Court of Civil Appeals properly reversed that portion of the trial court's judgment holding that the second injury was not compensable; to that extent, the judgment of the Court of Civil Appeals is affirmed. It erred, however, by independently weighing the evidence and directing the trial court to enter a judgment awarding compensation for that second injury; therefore, we reverse that portion of the judgment of the Court of Civil Appeals directing the trial court to award compensation for the second injury. The case is remanded for the Court of Civil Appeals to remand for further proceedings in the trial court consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, LYONS, and BROWN, JJ., concur. ENGLAND, J., concurs in the result. [1] Judge Thompson dissented, arguing that the trial court's findings were supported by substantial evidence. See 772 So. 2d at 1166-67. [2] Because both cases predated the 1992 amendment to Ala.Code 1975, § 25-5-81, the "scintilla rule" of evidence governed the outcome of those two cases.

April 28, 2000

bad0c653-d9d4-491d-b196-4f72b4f0a1d2

Northbrook Indem. Co. v. Westgate, Ltd.

769 So. 2d 890

1980619

Alabama

Alabama Supreme Court

769 So. 2d 890 (2000) NORTHBROOK INDEMNITY COMPANY v. WESTGATE, LTD., a partnership, d/b/a Westgate Shopping Center. 1980619. Supreme Court of Alabama. April 21, 2000. Davis Carr, Paul V. Lagarde, and Kathleen Cobb Kaufman of Carr, Alford, Clausen & McDonald, L.L.C., Mobile; and Kenneth T. Fuller of Cassady, Fuller & Marsh, Enterprise, for appellant. Bibb Allen, John M. Laney, Jr., and Deborah Alley Smith of Rives & Peterson, P.C., Birmingham, for appellee. SEE, Justice. The opinion of November 24, 1999, is withdrawn, and the following is substituted therefor. The defendant, Northbrook Indemnity Company ("Northbrook"), appeals from an order denying its Rule 60(b), Ala. R. Civ. P., motion for relief from a default judgment in favor of the plaintiff, Westgate, Ltd. ("Westgate"). Northbrook suffered a default judgment in the amount of $1,167,000, including $1 million in punitive damages, after it failed to answer Westgate's complaint. Northbrook argues that the judgment is void because, it says, Westgate did not properly serve process on Northbrook. We agree, and we reverse and remand. Westgate owns a shopping center in Enterprise. The shopping center was damaged by Hurricane Opal in October 1995. At the time, Westgate had in effect an insurance policy issued by Northbrook that covered the shopping center for the period June 1995 through June 1996.[1] Westgate filed claims based on property damage and loss of rent that resulted from the hurricane. Northbrook paid some of Westgate's claims, but refused to pay Westgate's claim for $2,000 for an air conditioner starter and its claim for $15,000 for lost rent. Westgate alleges that Northbrook's failure to pay the disputed $17,000 ruined Westgate's relationship with its lender and caused Westgate to have to refinance with another lender, an arrangement that Westgate alleges will cost it $150,000 more than the financing arrangement it says it lost. Westgate had outstanding debt that was secured by the shopping-center property, and its loss of rental income while the shopping center was undergoing repairs exacerbated preexisting cash-flow problems. When Northbrook insured Westgate, Northbrook was a wholly owned subsidiary of Allstate Insurance Company ("Allstate"). Allstate's home office was at 51 West Higgins Road, South Barrington, Illinois. Northbrook's home office was also listed at this address in Westgate's 1995-96 insurance policy. Allstate had authorized a courier service, Amigo Delivery Service, to sign for and pick up, at the South Barrington post office, all mail addressed to 51 West Higgins Road and to deliver it to the mail room at 51 West Higgins Road. Effective August 1, 1996, Allstate sold Northbrook to St. Paul Insurance Company ("St. Paul"). After the sale, Northbrook moved its activities from 51 West Higgins Road to other locations. After December 1997, Northbrook had no employees at 51 West Higgins Road and no longer conducted business at that address. Neither Allstate nor Northbrook changed the arrangement whereby Amigo Delivery Service employees would sign for and pick up all mail addressed to 51 West Higgins Road. However, Northbrook had arranged with Allstate for it to forward to St. Paul's home office in Minnesota all mail addressed to Northbrook at 51 West Higgins Road. St. Paul's company policy is that papers in any action against Northbrook filed in the United States and relating to a claim from Alabama are to be sent to St. Paul's regional claims office in Atlanta, Georgia. St. Paul's Atlanta regional claims office maintains a "suit log" and a "suit binder." St. Paul's policy is to list in the suit log all lawsuits for which the regional claims office receives process and to place a copy of those documents in the suit binder. On February 6, 1998, Westgate sued Northbrook, asserting claims based on an alleged breach of an insurance contract and an alleged bad-faith failure to pay insurance claims, and seeking compensatory and punitive damages. Westgate requested the court to direct service of process *892 on Northbrook by certified mail at the 51 West Higgins Road address. On February 12, 1998, Hector Ramon, an Amigo Delivery Service employee, signed the certified-mail receipt for Westgate's summons and complaint. Northbrook alleges that it does not know what happened to the summons and complaint after Ramon signed the receipt and apparently received the documents. There was no record of the summons and complaint in the suit log and no copy of those documents in the suit binder at the Atlanta regional claims office. On May 4, 1998, Westgate applied for an entry of default against Northbrook. The court clerk entered a default that day. Westgate mailed a copy of its application for entry of default to Northbrook at the 51 West Higgins Road address. On June 18, 1998, Westgate applied for a judgment based on the default. Westgate mailed a copy of its application for entry of judgment to Northbrook at the 51 West Higgins Road address. On July 10, the trial court held an evidentiary hearing, at which Westgate offered evidence to support its claims. At the conclusion of that hearing, the court entered against Northbrook a default judgment in the amount of $1,167,000. The court clerk, by certified mail addressed to 51 West Higgins Road, attempted to serve Northbrook with a copy of the default judgment. On July 30, Hector Ramon signed a certified-mail receipt for that copy. On September 16, 1998, Northbrook moved the court for Rule 60(b), Ala. R. Civ.P., relief from the default judgment. The trial court denied the motion, holding that Northbrook had offered no evidence to support a finding that its failure to answer the complaint was due to excusable neglect.[2] On January 6, 1999, Northbrook filed a notice of appeal from the trial court's order denying its motion to set aside the default judgment. Northbrook argues that the trial court erred in denying its motion for relief from the default judgment, because, it argues, the judgment is void. See Rule 60(b)(4), Ala. R. Civ.P.[3] Specifically, Northbrook argues that Westgate did not serve process on it in accordance with Rule 4(c)(6), Ala. R. Civ.P. Rule 4(c) provides: *893 Northbrook asserts that Hector Ramon was not authorized by appointment or by law to receive service of process for Northbrook, that Ramon was not an officer or agent of Northbrook, and that 51 West Higgins Road was not one of Northbrook's usual places of business at the time Ramon signed for Westgate's summons and complaint. This Court has held that "[t]he review applicable to a Rule 60(b)(4) motion is de novo." Greene v. Connelly, 628 So. 2d 346, 351 (Ala.1993); accord Insurance Management & Admin., Inc. v. Palomar Ins. Corp., 590 So. 2d 209, 212 (Ala.1991). Palomar Ins., 590 So. 2d at 212. "Failure of proper service under Rule 4 deprives a court of jurisdiction and renders its judgment void." Ex parte Pate, 673 So. 2d 427, 428-29 (Ala.1995). Westgate does not contend that Ramon was "authorized by appointment or by law to receive service of process" for Northbrook, or that Ramon was "an officer or an agent" of Northbrook. Therefore, we do not address those issues. See Jackson v. Reed, 438 So. 2d 750, 753 (Ala.1983) (stating that this Court should not act sua sponte in addressing and deciding an issue not framed by the pleadings, where the issue is not of great public importance or of any great jurisprudential importance). Westgate does, however, argue that 51 West Higgins Road was one of Northbrook's "usual places of business." Rule 4(c)(6), Ala. R. Civ.P. Northbrook denies that 51 West Higgins Road was one of its usual places of business at the time Ramon signed for the summons and complaint.[4] This Court has not addressed the issue of what constitutes a corporation's "usual place[] of business" for purposes of Rule 4. However, we are not without guidance from other jurisdictions on this issue. In Paramount Packaging Corp. v. H.B. Fuller Co., 190 F. Supp. 178 (E.D.Pa.1960), a federal district court held that the office of a telephone-answering service that answered calls for a particular corporation was not the corporation's usual place of business, even though the corporation had represented that it had an office at the address of the answering service and even though it received mail at that address. 190 F. Supp. at 180-81. The court reasoned that because the defendant had no employees at the answering service's office and none of the answering service's employees was authorized to act for the defendant, other than to receive its mail and answer its telephone calls, the corporation was not doing business at that office. Id. at 180. Westgate argues that LSJ Investment Co. v. O.L.D., Inc., 167 F.3d 320 (6th Cir. *894 1999), and Blackhawk Heating & Plumbing Co. v. Turner, 50 F.R.D. 144 (D.Ariz. 1970), are analogous to this case. In LSJ Investment, as in this case, the parties disputed whether the address at which service on a corporate defendant was attempted was the usual place of business for the corporation. See 167 F.3d at 323. The plaintiff attempted to serve the corporation at an address that a corporate officer repeatedly gave as the corporation's business address. See id. at 323. Although the corporation argued that the address was not its usual place of business, the United States Court of Appeals for the Sixth Circuit affirmed the trial court's denial of the defendant corporation's motion for relief from judgment, holding that the trial court could reasonably have concluded that the address was in fact the corporation's office. At least three facts distinguish LSJ Investment from the present case: (1) in LSJ Investment, the record indicated that the corporate defendant had purposely evaded service; (2) in LSJ Investment, the corporate defendant had actual knowledge of the lawsuit; and (3) in LSJ Investment, the corporate defendant had not moved from the address where service of process was attempted to another address. Instead, the corporation simply argued that an address given out by a corporate officer as the corporation's business address was not in fact its business address. See id. Thus, LSJ Investment is not analogous to this case. In Blackhawk Heating, the plaintiff attempted service of process on an individual defendant by leaving the process documents with the defendant's adult daughter at an apartment. The defendant argued that that apartment was not his "residence or usual place of abode." 50 F.R.D. at 147. The defendant claimed that he had previously moved from the apartment and had done so with the intent never to return. Id. at 145. However, other facts indicated that the apartment was still the defendant's residence. Id. at 147. The defendant still paid rent for the apartment, still had his furniture in the apartment and his automobiles nearby, still received mail at the apartment, and had not notified the apartment manager of a move. Id. As in LSJ Investment, the defendant in Blackhawk Heating had evaded service and had had actual knowledge of the lawsuit against him. Id. at 145. Thus, Blackhawk Heating is distinguishable from the present case. The present case is analogous to Paramount Packaging. It is undisputed that when service of process was attempted, Northbrook had no employees at 51 West Higgins Road and it had ceased doing business at that address. Moreover, nothing in the record indicates that any of Allstate's agents or employees were authorized to transact business on Northbrook's behalf at that address. Accepting and forwarding mail is not doing business. See Paramount Packaging, 190 F. Supp. at 180. In short, the record contains no substantial evidence to support a finding that 51 West Higgins Road was one of Northbrook's usual places of business at the time of the attempted service of process.[5] Thus, the attempted service on Northbrook at that address did not comply with Rule 4(c)(6), Ala. R. Civ.P., and the default judgment entered against Northbrook is void. See Ex parte Pate, 673 So. 2d at 428-29. Because the default judgment against Northbrook is void, we reverse the trial court's order denying Northbrook's Rule 60(b) motion for relief from the default judgment and remand the case for further proceedings.[6] OPINION OF NOVEMBER 24, 1999, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED. *895 HOOPER, C.J., and MADDOX, HOUSTON, COOK, LYONS, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., dissents. JOHNSTONE, Justice (dissenting). I respectfully dissent. Northbrook is estopped to deny that the very address Northbrook supplied as its "home office" address on the very insurance policy issued to Westgate and invoked by Westgate as the basis of this claim against Northbrook, is one "of its usual places of business" for service of process under Rule 4(c)(6), Ala. R. Civ.P. Considering the extremes to which this Court binds policyholders to policy language, see, e.g., McDougle v. Silvernell, 738 So. 2d 806 (Ala. 1999), and the special writings therein,[7] we cannot excuse Northbrook from its own express representation in its own policy. [1] Westgate did not have a policy of insurance with Northbrook when it filed this lawsuit. [2] On December 14, 1998, Northbrook moved the trial court for a hearing based on the principles and procedures established for considering a defendant's claim that an award of punitive damages is excessive. See Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986); Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989); and BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996). However, because this motion was not filed within 30 days after the entry of the judgment, it was untimely, and the trial court was without jurisdiction to entertain it. See Rules 55(c) and 59(e), Ala. R. Civ.P. [3] Rule 60(b) provides in part: "On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment." (Emphasis added.) [4] Westgate, relying on Insurance Management & Administration, Inc. v. Palomar Insurance Corp., supra, argues that Northbrook had the burden of proving by clear and convincing evidence that 51 West Higgins Road was not one of its usual places of business. We disagree. In Palomar Insurance, this Court held that a presumption of service in accordance with Rule 4.2(b)(1), Ala. R. Civ. P., arises upon a showing of the certified-mail return receipt and "the circuit court clerk's notation [on the docket sheet] that the process has been properly mailed." 590 So. 2d at 213. To rebut this presumption, the challenging party "bears the burden of establishing lack of service by clear and convincing evidence." Id. Thus, Palomar Insurance merely establishes a presumption of compliance with Rule 4.2(b)(1); that is, that the court clerk mailed the process and the person signing the certified-mail receipt received the process. Palomar Insurance does not establish a presumption that a defendant was served in compliance with Rule 4(c), which indicates "upon whom process [is to be] served." Thus, Northbrook did not bear the burden of proving by clear and convincing evidence that 51 West Higgins Road was not one of its usual places of business. [5] The insurance policy on which Westgate relied for using 51 West Higgins Road as Northbrook's address for service of process had expired on June 12, 1996. That was 20 months before February 12, 1998, when service was attempted. [6] Our conclusion makes it unnecessary for us to address these other arguments by Northbrook: (1) that the trial court abused its discretion in denying its motion for relief from judgment, under the factors set forth in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So. 2d 600 (Ala.1988); (2) that the trial court erred in not reviewing the punitive-damages award under the factors set forth in BMW, Hammond, and Green Oil (see n. 2); and (3) that the trial court violated Northbrook's due-process rights guaranteed by the Constitution of the United States and the Constitution of Alabama by awarding Westgate punitive damages even though Northbrook had had no actual notice of the lawsuit. [7] In McDougle v. Silvernell this Court bound the holder of a title insurance binder to arbitration provisions in a title insurance policy not even issued to, much less received by, the binder holder when he closed his purchase of the land. The rationale of the majority was that the binder, which did not mention arbitration, incorporated by reference "the insuring provisions, the Exclusions from Coverage and the Conditions and Stipulations of the form of policy or policies committed for in favor of the proposed insured."

April 21, 2000

850e9e8a-f4f0-4c19-806c-0859a8a801af

Ex Parte Ingram

779 So. 2d 1283

1990282

Alabama

Alabama Supreme Court

779 So. 2d 1283 (2000) Ex parte Robert Shawn INGRAM. (Re Robert Shawn Ingram v. State). 1990282. Supreme Court of Alabama. June 23, 2000. Rehearing Denied September 8, 2000. *1284 Jeb S. Fannin, Talladega; and Mark Smith Nelson, Talladega, for petitioner. Bill Pryor, atty. gen., and Beth Jackson Hughes, asst. atty. gen., for respondent. COOK, Justice. Robert Shawn Ingram was convicted of capital murder and was sentenced to death. The Court of Criminal Appeals affirmed the conviction and the sentence. Ingram v. State, 779 So. 2d 1225 (Ala.Crim. App.1999). We granted certiorari review; see Rule 39, Ala. R.App. P. We affirm. The Court of Criminal Appeals stated the following facts in its opinion: 779 So. 2d at 1237-38. Ingram raises 24 issues in this Court. The following issues, which were addressed by the Court of Criminal Appeals, were addressed at oral argument on April 5, 2000: (I)(a) Whether the trial court allowed the jury to consider all eight statutory aggravating circumstances even though only two were applicable; (b) Whether the trial court, in rejecting the mitigating circumstance stated in Ala.Code 1975, § 13A-5-51(7), and in finding no nonstatutory mitigating circumstances, erred in relying on an incorrect statement of Ingram's age; and (c) Whether the trial court erroneously charged the jury as to mitigating circumstances; and (II) Whether the trial improperly allowed the State to introduce evidence of other crimes, specifically Ingram's alleged drug activity, during the guilt phase of the trial. The Court of Criminal Appeals, in an extensive opinion, thoroughly addressed the issues raised by Ingram. We have also considered all the issues raised, and we have looked for prejudicial error that may not have been brought to the attention of the trial court, the Court of Criminal Appeals, or this Court. We find no error. As required by § 13A-5-53, Ala.Code 1975, we have reviewed this case for any error in regard to the conviction and we have considered the propriety of the death sentence. Ingram was indicted and convicted of murder committed during a kidnapping in the first degree. The trial court found the existence of two statutory aggravating circumstances: (1) that "[t]he capital offense was committed while the defendant was engaged ... in the commission of, or an attempt to commit, or flight after committing, or attempting to commit, ... kidnapping (§ 13A-5-49(4))"; and (2) that "[t]he capital offense was especially heinous, atrocious, or cruel, compared to other capital offenses" (§ 13A-5-49(8)). The trial court found one statutory mitigating circumstance: that "[t]he defendant [had] no significant history of prior criminal activity" (§ 13A-5-51(1)). The court found no nonstatutory mitigating circumstances. The record reflects that the trial court weighed the aggravating circumstances against the mitigating circumstance and found that the aggravating circumstances outweighed the mitigating circumstance and sentenced Ingram to death. After carefully reviewing the record, we have found no evidence to indicate that Ingram's sentence "was imposed under the influence of passion, prejudice, or any other arbitrary factor." See § 13A-5-53(b)(1). Pursuant to § 13A-5-53(b)(2), this Court has independently weighed the aggravating circumstances and the mitigating circumstance to determine the propriety of Ingram's sentence to death. After that independent weighing, this Court concludes that death is the appropriate sentence in this case. Ingram's sentence is not disproportionate or excessive when compared to the sentences imposed in similar capital cases. As required by Rule 39(k), Ala. R.App. P., we have carefully searched the entire record for error, plain or otherwise, that would have adversely affected Ingram's substantial rights, and we have found none. We have also reviewed the briefs and considered all issues raised by Ingram, and we have reviewed the record of the guilt phase and the sentencing phase of the trial. We conclude that Ingram received a fair trial. The judgment of the Court of Criminal Appeals affirming Ingram's conviction and death sentence is affirmed. AFFIRMED. *1286 HOOPER, C.J., and MADDOX, HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.

June 23, 2000

fc9b517d-1024-4d8d-8f88-9757d6024a70

Ex Parte National Security Ins. Co., Inc.

773 So. 2d 461

1971861

Alabama

Alabama Supreme Court

773 So. 2d 461 (2000) Ex parte NATIONAL SECURITY INSURANCE COMPANY, INC. (Re James Boutwell v. National Security Insurance Company, Inc., et al.) 1971861. Supreme Court of Alabama. June 9, 2000. *462 Todd Derrick of Cobb & Shealy, P.A., Dothan, for petitioner. S. Mark Andrews of Cherry, Givens, Peters & Lockett, P.C., Dothan, for respondent. BROWN, Justice. National Security Insurance Company, Inc., is a defendant in an action pending in the Houston Circuit Court. It petitions for a writ of mandamus directing the circuit court to vacate its orders requiring certain discovery. We deny the petition. James Boutwell sued National Security, alleging fraud, suppression, breach of contract and negligent, wanton, or reckless acts in connection with the sale of a life-insurance policy to his mother. Boutwell later amended the complaint to add counts alleging conspiracy and a violation of § 27-12-6, Ala.Code 1975, which prohibits a person from "misrepresenting or making misleading incomplete comparisons as to the terms, conditions or benefits contained in any policy for the purpose of inducing, or attempting or tending to induce, the policyholder to lapse, forfeit, surrender, retain, exchange or convert any insurance policy." Boutwell's mother, Velma Boutwell ("Mrs. Boutwell"), died in March 1997. Boutwell alleged that she had owned a life insurance policy issued by National Security. Boutwell, named as the beneficiary, claimed that National Security's agent Robert Tice had represented to Mrs. Boutwell that the policy provided for payment of the face amount of the policy upon her death. Boutwell alleged that, because of these alleged representations, he had made no other provisions for his mother's burial expenses. Before October 1995, Mrs. Boutwell had owned several National Security life-insurance policies, with face values totaling $3,000.[1] According to Boutwell, National Security had allowed his mother's life-insurance policies to lapse. Boutwell claims that in October 1995 Robert Tice forged Mrs. Boutwell's name onto an application for a guaranteed-issue or "preferred" policy, on which the full face amount would be payable only after the policy had been in effect two years. When Mrs. Boutwell died, on March 19, 1997, the guaranteed-issue policy had not been in effect for two years. Thus, National Security informed Boutwell that he was entitled only to a refund of the premiums his mother had paid, plus 5% annual interest on the amounts paid. In Boutwell's second request for production of documents, he requested: Boutwell moved to compel discovery. In support of his motion to compel, he agreed to limit the requests for policyholder names to the following: *464 National Security moved for a protective order. Following a hearing, the trial judge entered the following order: The parties seem to understand the phrase "those policies issued pursuant to a lapsed policy issued by National Security" to refer to new policies issued after a policyholder had allowed an earlier policy issued by National Security to lapse. The parties further seem to understand the phrase "within the State of Alabama during the past five years" to be a time and area limitation, referring to both lists of policyholders. The trial court issued a second order directing National Security to "provide [p]laintiff a list of all lawsuits filed in the State of Alabama within five years for fraud, deceit, misrepresentation, suppression and/or violations of insurance regulations or statutes naming the county where filed." National Security then filed this petition for the writ of mandamus. Discovery requests are governed by Rule 26, Ala. R. Civ. P. However, "[d]iscovery matters are within the trial court's sound discretion, and its ruling on those matters will not be reversed absent a showing of abuse of discretion and substantial harm to the appellant." Wolff v. Colonial Bank, 612 So. 2d 1146, 1146 (Ala. 1992) (citations omitted); see also Ex parte Hicks, 727 So. 2d 23, 33 (Maddox, J., dissenting). The trial court's discretion is not unlimited: Ex parte Clarke, 582 So. 2d 1064, 1067 (Ala.1991). A petition for the writ of mandamus is the proper method for presenting the question whether a trial judge has abused his discretion in ordering discovery. Ex parte Allstate Ins. Co., 401 So. 2d 749, 751 (Ala.1981). The writ of mandamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte Horton, 711 So. 2d 979, 983 (Ala.1998) (citing Ex parte United Serv. Stations, Inc., 628 So. 2d 501 (Ala.1993)); Ex parte Alfab, Inc., 586 So. 2d 889 (Ala.1991) (citing Martin v. Loeb & Co., 349 So. 2d 9 (Ala. 1977)). Thus, the writ of mandamus will not issue to direct the trial court to change its discovery order unless this Court determines, "based on all the facts that were before the trial court, that the trial court clearly abused its discretion." Ex parte Horton, 711 So. 2d at 983. An insurance company's lists of policyholders are confidential, proprietary information to which a litigant has no right except through court-ordered discovery. Ex parte Stephens, 676 So. 2d 1307, 1316 (Ala.1996) (Houston, J., dissenting); Ex parte Mobile Fixture & Equip. Co., 630 So. 2d 358 (Ala.1993); Ex parte McTier, 414 So. 2d 460 (Ala.1982). "The first step in determining whether the court has abused its discretion is to determine the particularized need for discovery, in light of the nature of the *465 claim." Ex parte Rowland, 669 So. 2d 125, 127 (Ala.1995). Because Boutwell alleged fraud, he "is accorded a considerably wider latitude in the discovery process so that he will be able to meet the heavy burden of proof placed [on one alleging fraud]." Ex parte Clarke, 582 So. 2d at 1068. "`[E]vidence of prior similar acts is admissible to show fraud, scheme, motive, or intent.'" 582 So. 2d at 1068 (quoting Pugh v. Southern Life & Health Ins. Co., 544 So. 2d 143, 145 (Ala.1988)). Thus, "[w]hen the discovery request of a plaintiff alleging fraud is closely tailored to the nature of the fraud alleged, the discovery should be allowed in full, as long as the party opposing discovery does not show that the requested discovery is oppressive or overly burdensome." Ex parte Horton, 711 So. 2d at 983. The trial court did not abuse its discretion in ordering National Security to produce "a list of policyholders and addresses of `preferred policies' i.e., those that do not pay benefits upon death within 2 years of issue; and of those policies issued pursuant to a lapsed policy issued by National Security: within the State of Alabama during the past five years." We addressed a similar issue in Ex parte First National Bank of Pulaski, 730 So. 2d 1160 (Ala.1999). In that case, involving claims of fraud in regard to the sale of credit-life insurance, we held that the trial court did not clearly abuse its discretion in requiring the defendant Bank to produce the names and addresses of all Alabama residents who had borrowed money from the Bank through a specific loan officer in 1994 and 1995. In Ex parte Union Security Life Insurance Co., 723 So. 2d 34 (Ala.1998), the plaintiff sued Union Security when it denied a claim on a credit-life insurance policy purchased in connection with the purchase of a truck; the plaintiff alleged fraud, breach of contract, negligence, wantonness, and bad-faith refusal to pay insurance benefits. We held that the trial court did not clearly abuse its discretion in ordering the defendant insurance company to produce all applications for credit-life insurance received from Alabama residents during a five-year period. Moreover, because the complaint asked for punitive damages, we held that the plaintiff had shown a need for the discovery she requested, and we stated that the trial court's order reflected the need: Ex parte Union Security, 723 So. 2d at 39 (quoting Ex parte Horton, 711 So.2d at 983-84). Boutwell alleges fraud and requests punitive damages. Thus, he is allowed broader discovery than would be allowed generally in other cases. However, his discovery is not unlimited. Our decisions in Ex parte First National Bank of Pulaski and Ex parte Union Security suggest that the time and geographical limitations imposed by the trial court are important in closely tailoring the discovery to Boutwell's claims. Although the trial court's order could have been clearer, we conclude that the court intended for the phrase "within the State of Alabama during the past five years" to be a limitation applying to both the request for a list of holders of preferred policies and the request for a list of holders of policies issued pursuant to a lapsed policy. Interpreted thus, the discovery order is closely tailored to Boutwell's fraud allegations and is not *466 oppressive or overly burdensome for National Security. Accordingly, we do not find that the trial court clearly abused its discretion. The trial court's second order directed National Security to "provide [p]laintiff a list of all lawsuits filed in the State of Alabama within five years for fraud, deceit, misrepresentation, suppression and/or violations of insurance regulations or statutes naming the county where filed." The discovery of past fraud actions, subject to the five-year limitation, may lead to the discovery of admissible evidence tending to suggest a pattern or practice of intentional wrongful conduct on the part of National Security's agents. As we have stated, "some earlier fraud actions need not relate to the specific focus of the fraud [the plaintiff] alleges ... for the discovery regarding earlier actions to be relevant to [the plaintiff's] action." Ex parte Rowland, 669 So. 2d at 127. Compare Ex parte Finkbohner, 682 So. 2d 409, 413 (Ala.1996) (implying that a plaintiff's request for a list of fraud "claims" that have not resulted in the filing of actions would be unduly burdensome on the defendant); and Ex parte Union Security, 723 So. 2d at 38-39 (consumer complaints filed with the company, even if the complaints do not result in legal actions, "can lead to evidence of representations similar to those made to the [plaintiffs]" and are thus discoverable). The trial court's order requiring National Security to produce a list of lawsuits is more restrictive than the order to produce consumer complaints and lawsuits upheld in Ex parte Union Security; it was not an abuse of discretion. National Security has not shown that the trial court clearly abused its discretion in issuing the discovery order. Therefore, the petition for the writ of mandamus is denied. WRIT DENIED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. [1] The complaint and the amended complaint stated that before October 1995 Mrs. Boutwell had paid on one insurance policy that was to pay the beneficiary $3,000 upon Mrs. Boutwell's death. However, Doug Martin, Jr., a National Security representative, testified at his deposition that Mrs. Boutwell had paid on two or three National Security life-insurance policies with combined face values of $3,000.

June 9, 2000

5e9be7e2-4ce6-47c8-90e8-8daaa67919b2

Ex Parte ERA Marie McConnell Realty, Inc.

774 So. 2d 588

1981922

Alabama

Alabama Supreme Court

774 So. 2d 588 (2000) Ex parte ERA MARIE McCONNELL REALTY, INC., and Jackie Green. (Re Mickey Platt and Platt Homebuilders, Inc. v. ERA Marie McConnell Realty, Inc., and Jackie Green). 1981922. Supreme Court of Alabama. May 5, 2000. *589 C. Peter Bolvig of Hall, Conerly, Mudd & Bolvig, P.C., Birmingham (reply brief filed by Carl Robert Gottlieb, Jr., Mobile), for petitioner. G. Randall Spear and Helen F-J Joyce of Richardson, Spear & Spear, P.C., Mobile, for respondents. JOHNSTONE, Justice. We granted certiorari in this case to determine whether the Court of Civil Appeals erred in reversing the summary judgment entered in favor of ERA Marie McConnell Realty and its real estate agent, Jackie Green, (the defendants) on a claim of fraudulent misrepresentation asserted by Mickey Platt and Platt Homebuilders, Inc. (the plaintiffs, or "Platt"). The plaintiffs' fraud claim is one of many claims arising from the plaintiffs' purchase of six undeveloped lots on West Second Street in Gulf Shores, Alabama. The trial court entered a summary judgment in favor of the defendants on all claims. Upon the plaintiffs' appeal, the Court of Civil Appeals affirmed the judgment of the trial court on all claims except the plaintiffs' fraud claim. Platt v. ERA Marie McConnell Realty, Inc., 774 So. 2d 577 (Ala.Civ. App.1999). In their complaint, the plaintiffs alleged that "[t]he [d]efendants negligently, recklessly, wantonly, or intentionally failed to disclose, failed to discover, and/or otherwise failed to determine the legal ingress and egress to the lots sold to the [p]laintiffs, being that described as West Second Street." The plaintiffs claimed that Platt did not discover that West Second Street "had been reportedly vacated and [that] there was a dispute regarding legal ingress or egress to the lots" until after the closing. The defendants moved for a summary judgment on the ground that Platt could not have reasonably relied on the defendants' representations because he was aware of the problems with ingress to and egress from the lots before he signed the purchase contract and before he closed on the sale. In support of the defendants' motion, they included Platt's deposition testimony revealing that Platt was aware of the problems with ingress to and egress from the property before he contracted to purchase the property; a June 14, 1995, letter addressed to Harold Garrison, one of the owners of West Second Street, from Attorney Thomas Klyce stating that he had researched the records and tax plats of the lots on West Second Street and had concluded that the portion of West Second Street in question had not been vacated although "the tax plat shows a portion of West Second Street as being vacated;" and a title insurance policy on the lots on West Second Street, which recited "no visible means of ingress and egress to and from said property." In response to the defendant's motion for a summary judgment, the plaintiffs contended that their purchase of the lots was conditional on the city's not having vacated West Second Street and on West Second Street's providing ingress to and egress from the lots. They claimed that they would not have purchased the lots absent the defendants' assurances, during contract negotiations and before closing, that West Second Street provided ingress to and egress from the lots. In support of their argument, the plaintiffs included a portion of Platt's deposition testimony; an affidavit from Rita Green, an employee of Sun Title Company; a purchase contract for the lots; a deed; and a title insurance *590 policy reciting "no visible means of ingress and egress to and from said property." In deciding the defendant's motion for a summary judgment, the trial court considered the following facts in the evidentiary materials submitted by the parties. As the owner of Platt Homebuilders, Inc., Platt purchased and developed undeveloped lots. In the first few months of 1995, Jackie Green called Platt to inquire whether he would be interested in purchasing some lots on West First Avenue. After viewing the property with Green, Platt informed her that he was not interested in purchasing those lots. At that time, Green told Platt that she might be able to sell him some lots bordering Stanton Creek on West Second Street but that there were some problems with ingress to and egress from the lots. Green then showed Platt the lots on West Second Street. Platt noticed that West Second Street abutted Fifth Avenue, a gravel road which he knew had been legally vacated by the City of Gulf Shores, and that the gravel on Fifth Avenue did not extend onto West Second Street. Platt noticed also that West Second Street was covered with trees, debris, and a lot of undergrowth. Platt testified that he knew that there were "some problems with ingress [to] and egress" from the lots "because there was a vacated road between the lots and the water." Platt did not ask Green whether the City of Gulf Shores had vacated West Second Street. Rather, he determined from his observations of the street that "[i]t wasn't maintained. It had trees 18 to 20 inches in diameter growing in the middle of it." (Emphasis added.) On July 16, 1995, Platt contracted to purchase six undeveloped lots on West Second Street for $120,000. Platt testified that, at the time he signed the purchase contract, he was aware that West Second Street was covered with undergrowth, trees, and debris and that no visible means of ingress to and egress from the lots existed. While Platt acknowledged that the road was not being maintained by any governmental body, he did not, before he entered the contract, specifically ask Green whether the road had been vacated. However, Platt claimed his concern about whether West Second Street had been vacated and whether it provided ingress to and egress from the lots was expressed in the following written condition he had Green add to his purchase contract: The relation between this condition and the status of West Second Street was that the city would not install water and sewer lines at its own expense in a vacated street. Platt testified further that, sometime after he contracted to purchase the six undeveloped lots, Green called him and told him that West Second Street had not been vacated and that West Second Street provided ingress to and egress from the lots. Platt stated also that, a few days prior to the closing, Green represented to him and Rita Green, an employee of Sun Title Company, that "the legal department at ERA Marie McConnell Realty had already looked at the title research results and everything appeared to be fine." Additionally, Harold Garrison, one of the owners of the property, hired an attorney to investigate the vacation of the road; and Garrison informed Platt that Garrison's attorney did not believe the road had been legally vacated. On the closing date, Garrison gave Platt an application for a permit to construct a culvert system on the lots and a letter stating that the attorney whom Garrison hired to investigate the vacation of the property, "having made reasonable effort to determine otherwise, conclude[d] that the portion of West Second Street in question ha[d] not been vacated." Platt did not conduct any independent research on whether West Second Street had been vacated. Sometime after closing *591 his purchase of the lots, however, Platt learned that West Second Street had been vacated. At an expense of $5,500, Platt removed debris, undergrowth, and trees 18-to-20 inches-in-diameter from West Second Street and resold the lots for $155,000. The plaintiffs complain that Green's representations that West Second Street had not been legally vacated and that West Second Street provided ingress to and egress from the lots induced Platt to enter the purchase contract. They claim that like representations were made by Green and by the sellers after the execution of the contract and before the closing fraudulently to assure Platt that the written condition included in the purchase contract could be satisfied. The representations made both before Platt signed the contract and after he signed the contract are material to his entering the contract and his closing the purchase. The dispositive issue before this Court, however, is whether Platt's reliance on the defendants' representations was reasonable. A cause of action for misrepresentation arises when the plaintiff relies on a misrepresentation of a material fact and suffers damages because of his or her reliance. § 6-5-101, Ala.Code 1975. Because the plaintiffs' complaint was filed after March 14, 1997, the "reasonable-reliance standard" applies. Foremost Ins. Co. v. Parham, 693 So. 2d 409 (Ala.1997) (prospectively rejecting the justifiable-reliance standard and readopting the previously existing reasonable-reliance standard). A purchaser's "reliance is reasonable in the absence of independent knowledge sufficient to arouse the purchaser's suspicion, and he is not obligated to make an independent investigation as to the truth of the seller's representations absent such knowledge." Saranthus v. McIntyre, 557 So. 2d 1275, 1276 (Ala.Civ.App.1989) (emphasis added). "If the circumstances are such that a reasonably prudent person who exercised ordinary care would have discovered the true facts, the plaintiffs should not recover." Torres v. State Farm Fire & Cas. Co., 438 So. 2d 757, 759 (Ala.1983) (citing Bedwell Lumber Co. v. T & T Corp., 386 So. 2d 413, 415 (Ala.1980)). While this Court has held that real estate brokers and salespersons may be held liable for representations they make to induce a purchaser to act, see Earle, McMillan & Niemeyer, Inc. v. Dekle, 418 So. 2d 97 (Ala. 1982), "`[i]f the purchaser blindly trusts, where he should not, and closes his eyes where ordinary diligence requires him to see, he is willingly deceived, and the maxim applies, "volunti non fit injuria".' Munroe v. Pritchett, 16 Ala. 785, 789 (1849)." Torres, supra, at 759. The evidence conclusively establishes that Platt's reliance fails the tests of the reasonable-reliance standard. He had personal knowledge of big trees growing in the middle of West Second Street, together with undergrowth and debris, and he had personally received conflicting information regarding the vacation status of West Second Street and its availability for ingress to and egress from the lots, before he executed the contract and before he closed the purchase. Because the evidence conclusively negates the essential element of reasonable reliance in Platt's fraud claim, the trial court properly entered a summary judgment in favor of the defendants. Therefore, the Court of Civil Appeals erred in reversing the fraud-claim aspect of the judgment of the trial court. Consequently, we remand this cause to the Court of Civil Appeals for it to issue a judgment consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, COOK, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. HOUSTON, J., concurs specially. HOUSTON, Justice (concurring specially). I concur. However, I also agree with, and would adopt as part of our opinion, the *592 reasoning and language in Judge Crawley's dissent. See Platt v. ERA Marie McConnell Realty, Inc., 774 So. 2d 577, 587-88 (Ala.Civ.App.1999) (Crawley, J., dissenting).

May 5, 2000

2d2ebfbf-2696-4aa7-9ceb-591dedaa0ac8

Plaintiff v. Defendant

770 So. 2d 1076

1980392

Alabama

Alabama Supreme Court

770 So. 2d 1076 (2000) Charles C. BOACKLE and Teresa L. Boackle v. BEDWELL CONSTRUCTION COMPANY, INC., and Dillard Plastering Company, Inc. 1980392 Supreme Court of Alabama. April 14, 2000. *1078 Arthur Edge III, Birmingham, for appellants. James A. Kee, Jr., Larry S. Logsdon, and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for Bedwell Construction Company, Inc. John W. Clark, Jr., and J. Craig Lewis of Clark & Scott, P.C., Birmingham, for Dillard Plastering Company, Inc. JOHNSTONE, Justice. On April 14, 1998 Charles C. Boackle and Teresa L. Boackle, the second owners of a home in Shelby County, sued Bedwell Construction Company, Inc., the builder of the home, and Dillard Plastering Company, Inc., the plastering company which applied an Exterior Insulation and Finishing System (EIFS) or "Dryvit," to the home when it was built. The Boackles' complaint alleges breach of implied warranty, negligence, failure to warn, negligence in the installation, negligence in the supervision, fraudulent suppression, and fraudulent misrepresentation. The trial court entered summary judgment for the defendants based upon the doctrine of caveat emptor. The Boackles appeal. We affirm. It is undisputed that the Boackles' home was first built for Mr. and Mrs. Seavy Jennings, who sold it to the Boackles. As part of the building process, the defendants installed an EIFS synthetic stucco exterior on the home. The Boackles allege that they have spent over $70,000 in repairs for damage to the house resulting from water intrusion and wood rot. Bedwell Construction filed a motion to dismiss with a supporting affidavit and exhibits. The affidavit of Charles R. Bedwell, Jr., reads: The trial court initially denied the Bedwell motion to dismiss. Thereafter, both Bedwell and Dillard filed motions to reconsider the motion to dismiss, relying upon the doctrine of caveat emptor, because the Boackles are the second owners of this home. The trial court then granted their motions to reconsider, treated the motion to dismiss as a motion for summary judgment under Rule 12(b), Ala. R. Civ. P., and granted summary judgment for both defendants. "`In reviewing the disposition of a motion for summary judgment, we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact' and whether the movant was `entitled to a judgment as a matter of law.'" Bussey v. John Deere Co., 531 So. 2d 860, 863 (Ala.1988); Rule 56(c), Ala. R. Civ. P. "[W]hen the movant makes a prima facie showing that no genuine issue of material fact exists, the burden shifts to the nonmovant to show `substantial evidence' in support of his position." Bean v. Craig, 557 So. 2d 1249, 1252 (Ala.1990); Rule 56(c), Ala. R. Civ. P. Substantial evidence is defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). This Court continues to follow the rule that there is no implied warranty in the sale of a "used" home. "[T]here is no implied warranty of habitability in the sale of used residential real estate, and the rule of caveat emptor still applies in such a sale." Compass Point Condominium Owners Ass'n v. First Fed. Sav. & Loan Ass'n of Florence, 641 So. 2d 253, 255 (Ala. 1994), citing Ray v. Montgomery, 399 So. 2d 230 (Ala.1980). The plaintiffs argue that, because they are not suing for breach of warranty, which requires privity, the above rule does not apply. They rely principally on their claims of fraud committed by the builder's principal Mr. Bedwell in his conversation directly with Mrs. Boackle. They argue that they met their burden of presenting substantial evidence that there was a genuine issue of material fact with respect to their claims of fraudulent suppression and fraudulent misrepresentation. They cite Teresa Boackle's affidavit: The plaintiffs acknowledge that the sale of the house from the Jenningses to them did not carry an implied warranty that the house had no defects. They also acknowledge that it carried no implied warranty for which the builder would be liable to them as subsequent purchasers. However, they insist that Mr. Bedwell committed fraudulent suppression or fraudulent misrepresentation or both in his conversation with Mrs. Boackle when she complained directly to him after she and her husband had bought the home. The claim for fraudulent suppression asserted and argued by these plaintiffs requires proof: "`(1) that the defendant[s'] had a duty to disclose material facts; (2) that the defendant[s] concealed or failed to disclose those facts; (3) that the concealment or failure to disclose induced the plaintiff[s] to act; and (4) that the defendant[s'] action resulted in harm to the plaintiff[s].'" Bethel v. Thorn, 757 So. 2d 1154 (Ala.1999) (quoting Booker v. United American Ins. Co., 700 So. 2d 1333, 1339 n. 10 (Ala.1997)). The claim for fraudulent misrepresentation asserted and argued by these plaintiffs requires proof: "1) that the defendant[s] made a false representation; 2) of a material existing fact; 3) on which the plaintiff[s] reasonably relied; and 4) which proximately caused the injury or damage to the plaintiff[s]." Bethel v. Thorn, 757 So. 2d at 1160, n. 3 (citing Goodyear Tire & Rubber Co. v. Washington, 719 So. 2d 774, 776 (Ala.1998), and Foremost Ins. Co. v. Parham, 693 So. 2d 409 (Ala.1997)). The materials before us do not show either a valid claim for fraudulent suppression or a valid claim for fraudulent misrepresentation. Nothing in any of the evidentiary materials submitted by the parties for or against the motion to dismiss (treated as one for summary judgment) tends to prove that Mr. Bedwell knew, or should have known, any material facts to suppress regarding the Boackles' particular problems with their home. Thus the essential element of concealment or nondisclosure of a material fact is missing from the Boackles' fraudulent suppression claim against Mr. Bedwell's company. The only evidentiary material tending to prove any communication directly between the plaintiffs and either defendant is Mrs. Boackle's affidavit recounting the discussion between her and Mr. Bedwell. In the affidavit the only account of any representation by Mr. Bedwell reads: The suggestion regarding John Martin does not constitute a representation of fact at all. Moreover, the evidentiary materials, as distinguished from unproved assertions in the plaintiffs' complaint and briefs, do not explain what kind of assistance Mr. Bedwell thought Mr. Martin could provide. Thus the reference to Mr. Martin does not add detail to Mr. Bedwell's representation about the EIFS finishes. Mrs. Boackle's affidavit does imply that Mr. Bedwell's representation about the EIFS finishes was false and does state that the Boackles relied on the representation. Thus the issues which determine the validity of the Boackles' misrepresentation claim against Mr. Bedwell's company are, first, whether the affidavit constitutes substantial evidence that the purported misrepresentation proximately caused the damage and, second, whether the affidavit constitutes substantial evidence that the reliance was reasonable. The unproven arguments in the plaintiffs' briefs say, in effect, that Mr. Bedwell's representation caused the plaintiffs to misdirect their corrective efforts and thereby to waste their moneythat is, to waste money on an elaborate but futile caulking job. Their proof, in the form of Mrs. Boackle's affidavit, however, does not articulate this theory. *1081 Alabama Pattern Jury Instruction 33.00 provides a concise definition of proximate cause: Does Mrs. Boackle's affidavit tend to prove that, without Mr. Bedwell's purportedly false statement "that there were no problems with the EIFS finishes on the homes that he built," the plaintiffs would not have "proceeded to spend several thousand dollars over the course of the next few months, attempting to stop water leaks at [their] home"? In other words, does her affidavit tend to prove that, had he told her there were or might be some problems, the plaintiffs would not have spent the money? If the affidavit contains any such implication at all, it is too faint to constitute substantial evidence. For aught that appears in the affidavit, the same attempts would have been worthy of trying (even if eventually futile in hindsight) even if the house did have problems with the EIFS finish. Thus, the Boackles' proof of the relation between Mr. Bedwell's purportedly false statement and the Boackles' loss of their "several thousand dollars" does not fulfill the "without which" test, or criterion, of the definition of proximate cause to any degree that would, in turn, meet the definition of substantial evidence. The absence of the essential element of proximate causation invalidates the Boackles' theory of fraudulent misrepresentation against Mr. Bedwell's company. Our conclusion in this regard pretermits further discussion of the element of reasonable reliance. The plaintiffs produced no evidence of any communication whatsoever between them and the defendant Dillard. Thus they show no fraud claims against this defendant. The plaintiffs next argue theories of negligence against the defendants relating to their original construction of the home. The plaintiffs claim only property damage and depreciation, without any physical injury to persons. The lack of privity between the plaintiffs and the defendants forecloses such claims. The law so evolved in this Court's decisions in Wells v. Clowers Constr. Co., 476 So. 2d 105 (Ala.1985), and Wooldridge v. Rowe, 477 So. 2d 296 (Ala.1985). In Wooldridge, the plaintiffs sued the builder of their home for property damage resulting from a fire caused by a negligently constructed fireplace. Affirming the dismissal of the plaintiffs' claims, this Court reasoned that, because the plaintiffs were not in privity of contract with the builder, the doctrine of caveat emptor barred their recovery. 477 So. 2d at 298. In Wells, an insurance company as subrogee and a homeowner (not the original purchaser) sued a construction company for property damage resulting from a fire caused by another negligently constructed fireplace. This Court, noting that this precise issue had been addressed in Wooldridge, applied the doctrine of caveat emptor and affirmed summary judgment for the builder. 476 So. 2d at 106. The Boackles finally contend that §§ 6-5-218, 6-5-220, 6-5-221, and 6-5-222, Ala.Code 1975, (from the statute of repose for architects, contractors, and engineers) provide statutory authority for an action brought by a party against a builder even in the absence of privity. The first rule of statutory construction is that the intent of the legislature should be effectuated. Beavers v. County of Walker, 645 So. 2d 1365 (Ala.1994). The Alabama Legislature manifestly did not intend to overrule the doctrine of caveat emptor in passing this statute of repose for architects, contractors and engineers. The preamble to the act reads as follows: The language in §§ 6-5-218 and 6-5-221 applying the limitations to "any other person," such as one not in privity with the defendant, serves to comprehend the inclusion of actions for wrongful death and personal injury, as well as those for property damage only, within the ambit of the sections codifying the statute and does not serve to create or to extend any theory of recovery. Under the undisputed facts in this case, we are compelled to hold that the trial court did not err in granting summary judgment in favor of the builder and the plasterer. The judgment of the trial court is due to be affirmed. AFFIRMED. HOOPER, C.J., and HOUSTON, COOK, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. MADDOX, J., concurs in the result.

April 14, 2000

be27e057-60a8-45fa-8fc2-7a770a73d7a8

Ex Parte Henry

770 So. 2d 76

1980407

Alabama

Alabama Supreme Court

770 So. 2d 76 (2000) Ex parte Altonie HENRY. (Re Altonie Henry v. Kansas City Life Insurance Company et al.) 1980407. Supreme Court of Alabama. May 5, 2000. *78 C.S. Chiepalich and John R. Spencer of C.S. Chiepalich, P.C., Mobile, for petitioner. Forrest S. Latta and J. Robert Tunipseed of Pierce, Ledyard, Latta & Wasden, P.C., Mobile, for respondent Kansas City Life Insurance Company. Joseph D. Thetford, Mobile, for respondent John T. Walley. BROWN, Justice. Altonie Henry sued Kansas City Life Insurance Company ("KC Life") and one of its agents; her action is pending in the Mobile Circuit Court. She petitions for a writ of mandamus directing that court to vacate its order of October 7, 1998, wherein it set out certain conditions for Henry to comply with before proceeding with a portion of the discovery process. Additionally, Henry asks us to direct the circuit court to vacate its orders of April 24, 1998, October 26, 1998, and November 9, 1998, quashing several nonparty subpoenas issued to various insurance companies for whom John T. Walley, a defendant in Henry's pending action, had acted as an agent. On November 14, 1994, Henry purchased a "whole life" insurance policy, in the face amount of $25,000, from KC Life, through its agent Walley. Henry paid the first month's premium of $52.98, in cash, to Walley. Thereafter, KC Life billed Henry directly for each monthly premium. Henry arranged with Walley to pay the premium to him in cash each month when he came by her house. Henry paid her monthly premium to Walley each month until October 1995, a total of 12 payments. However, only 5 of the 12 payments were credited to her policy. Henry claimed that KC Life or Walley had converted the remaining 7 premium payments. Before he was employed with KC Life, Walley had been employed for 23 years as an agent with American General Life Insurance Company ("American General"). American General had terminated Walley's employment in 1994 for stealing a policy-holder's premiums by forging the policy-holder's signature to a premium-refund check. Within a month of his termination, Walley became an agent for KC Life. Henry contends that Walley was not truthful when he completed the application to become a licensed agent for KC Life. KC Life submitted Walley's license application to the Alabama Department of Insurance, along with an endorsement stating that Walley was "an individual of good business standing and character" and that KC Life was "satisfied that the applicant [was] trustworthy and qualified to act as [its] agent." Henry sued KC Life and Walley, alleging misrepresentation, deceit, and fraudulent suppression, and seeking damages to include compensation for mental anguish. As to KC Life separately, Henry alleged that it had been negligent or wanton in *79 hiring, training, supervising, and retaining Walley as its agent. Specifically, Henry claimed that information concerning Walley's misconduct and his subsequent termination from American General had been available to KC Life at the time it hired him. Moreover, Henry claimed, KC Life knew when it hired him that Walley had been terminated by American General for conversion but nevertheless represented to the Alabama Department of Insurance that he was "honest and trustworthy."[1] Along with the complaint, Henry filed certain interrogatories and requests for production. Interrogatory no. 13 and request for production no. 14 read as follows: KC Life filed numerous objections, including objections to these two items. Henry filed a motion to compel answers and production. On October 7, 1998, the trial court granted Henry's motion to compel as to interrogatory no. 13 and request for production no. 14, but limited those discovery requests so as to relate only to those policies purchased in Alabama. Additionally, the court permitted KC Life to redact the policyholders' responses to health-related questions contained in those policies. Henry does not object to these restrictions. The court's order placed one final limitation on Henry's discovery: Henry objected to this limitation on her right of discovery. Henry also had several nonparty subpoenas issued to various insurance companies for which Walley had acted as an agent. On April 24, 1998, the trial court entered an order quashing those nonparty subpoenas. Later, Henry filed notices of intent to seek the issuance of additional nonparty subpoenas to other insurance companies by which Walley had been employed. On October 26, 1996, and on November 9, 1998, the trial court quashed the additional nonparty subpoenas. On December 2, 1998, Henry filed this petition for the writ of mandamus. Rule 26, Ala.R.Civ.P., governs the discovery of information in civil actions. When a dispute arises over discovery matters, the resolution of the dispute is left to the sound discretion of the trial court. "Discovery matters are within the trial court's sound discretion, and its ruling on those matters will not be reversed absent a showing of abuse of discretion and substantial harm to the appellant." Wolff v. Colonial Bank, 612 So. 2d 1146, 1146 (Ala. 1992) (citations omitted); see also Ex parte Hicks, 727 So. 2d 23, 33 (Ala.1998) (Maddox, J., dissenting). Petitioning for the writ of mandamus is the proper method for determining whether a trial judge has abused his discretion in limiting discovery. Ex parte Allstate Ins. Co., 401 So. 2d 749, 751 (Ala. 1981). The writ of mandamus is a drastic and extraordinary remedy, to be issued only when there is (1) a clear legal right in *80 the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte Horton, 711 So. 2d 979, 983 (Ala.1998) (citing Ex parte United Serv. Stations, Inc., 628 So. 2d 501 (Ala. 1993)); Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala.1991) (citing Martin v. Loeb & Co., 349 So. 2d 9 (Ala.1977)). Moreover, this Court will not issue a writ of mandamus compelling a trial judge to alter a discovery order unless this Court "determines, based on all the facts that were before the trial court, that the trial court clearly abused its discretion." Ex parte Horton, 711 So. 2d at 983. Moreover, "`[t]he right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief,' and `[t]he writ will not issue where the right in question is doubtful.'" Ex parte Bozeman, 420 So. 2d 89, 91 (Ala.1982) (quoting Ex parte Dorsey Trailers, Inc., 397 So. 2d 98, 102 (Ala.1981)). An insurance company's policyholder lists are confidential proprietary information to which a litigant has no right except through court-ordered discovery. Ex parte Stephens, 676 So. 2d 1307, 1316 (Ala.1996) (Houston, J., dissenting); Ex parte Mobile Fixture & Equip. Co., 630 So. 2d 358 (Ala.1993); Ex parte McTier, 414 So. 2d 460 (Ala.1982). "The first step in determining whether the court has abused its discretion is to determine the particularized need for discovery, in light of the nature of the claim." Ex parte Rowland, 669 So. 2d 125, 127 (Ala.1995). A plaintiff in a fraud action "is accorded a broader range of discovery in order to meet the heavy burden imposed on one alleging fraud." Ex parte Clarke, 582 So. 2d 1064, 1067 (Ala.1991). Here, just as in Rowland, the complaint alleged that the plaintiff had been defrauded by an insurer and its agent. Because she is alleging fraud, Henry is entitled to broader discovery than would normally be allowed. "When the discovery request of a plaintiff alleging fraud is closely tailored to the nature of the fraud alleged, the discovery should be allowed in full, as long as the party opposing discovery does not show that the requested discovery is oppressive or overly burdensome." Ex parte Horton, 711 So. 2d at 983. Henry's discovery requests sought the name of every person who had purchased a life insurance policy through Walley and issued by KC Life, since 1992, together with a copy of the application for the policy. These requests were overly broad and were not closely tailored to the nature of the fraud alleged in the complaint.[2] The trial court ordered that KC Life provide Henry with a list of the names of individuals in Alabama who had purchased such policies. Given that Walley and Henry were both residents of Mobile County, that Walley's alleged misconduct occurred in Mobile County, and that Henry filed her action in the Mobile Circuit Court, it would seem logical that most of Walley's sales for KC Life would have occurred within Alabama. Indeed, for the trial court not to restrict the discovery of other policyholders and their applications to Alabama would have made compliance with the requests unduly burdensome on KC Life. See Ex parte Finkbohner, 682 So. 2d 409, 413 (Ala.1996). Thus, we conclude that the trial court properly limited Henry's discovery to the names of persons in Alabama who had purchased KC Life policies from Walley, together with copies of their redacted applications. Although the trial court ordered KC Life to provide Henry with the names and applications of every person in Alabama *81 who had purchased a life insurance policy from KC Life, through Walley, since 1992, it placed certain conditions on how Henry could contact these persons. The judge ordered that Henry submit a proposed letter for the judge to review and approve before she could contact any person whose name had been provided in response to her discovery requests. Moreover, the court ordered, the letter "should make the recipient take the affirmative step of contacting the plaintiff's attorney if they so wish." This limitation was not an arbitrary limitation on Henry's right to conduct full and meaningful discovery in the manner she saw fit. Rather, the court was simply exercising the power and discretion afforded it in performing its obligation to oversee discovery matters. "Let the trial court be the trial court, without microscopic manipulation of its discretion by this Court." Ex parte Howell, 704 So. 2d 479, 483 (Ala.1997) (Houston, J., dissenting). Henry has not shown a clear abuse of discretion that would entitle her to a writ of mandamus. The trial court's order allows her to get the names of all persons in Alabama who had purchased a life insurance policy from KC Life, through Walley, since 1992, and it allows her the right to contact those persons. It was within the court's discretion to place limitations on the method Henry used to contact those persons. We recognize that this holding conflicts with prior cases involving the question whether a trial judge clearly abused his discretion by placing limitations on the method by which the plaintiff's attorneys could contact other policyholders. See, e.g., Ex parte Hicks, supra; Ex parte Stephens, supra. To the extent those cases conflict with today's holding, they are overruled. Henry also argues that we should issue the writ on the basis that she had a clear legal right to discover the information she sought by issuance of the nonparty subpoenas that were quashed by the trial court. Henry sued Walley and KC Life on October 29, 1997. She alleged that Walley and KC Life (under a theory of vicarious liability) were liable for misrepresentation, deceit, and fraudulent suppression as a result of Walley's conversion of her premium payments. Additionally, Henry alleged that KC Life was directly liable to her on the basis that it had negligently or wantonly hired and supervised Walley, and, through its negligence or wantonness, had allowed him to steal her premium payments. Henry's direct claims against KC Life were dismissed, on the basis that she had filed her action more than two years after those claims had accrued and, thus, that they were barred by the statute of limitations. (§ 6-2-38(l), Ala.Code 1975.) See Booker v. United American Ins. Co., 700 So. 2d 1333, 1339-40 (Ala.1997). Nevertheless, Henry had caused the issuance of nonparty subpoenas, seeking production of Walley's personnel files from a number of insurance companies for which he had previously worked. The trial court quashed those subpoenas. Henry contends that she was entitled to discover this information because, she says, "Alabama law provides that in order for [her] to recover punitive damages from KC Life for the wrongful acts of Walley, [she] must demonstrate that KC Life knew or should have known that Walley was unfit to act as a KC Life agent." As authority for this proposition, Henry cites § 6-11-27(a), Ala.Code 1975, which states: Contrary to Henry's claim, KC Life could be vicariously liable for the misconduct of Walleyand thus be subject to the imposition of punitive damages without evidence that it knew or should have known of the unfitness of its agent. See Alfa Mut. Ins. Co. v. Roush, 723 So. 2d 1250, 1255 (Ala.1998) ("[A]n employer may be `vicariously liable for acts of its employee that were done for the employer's benefit, i.e., acts done in the line and scope of employment or ... acts done for the furtherance of the employer's interest.'"). This Court has never held that the kind of discovery Henry seeksdiscovery related to the question whether a principal/employer had knowledge of its agent/employee's unfitnessis permitted under § 6-11-27(a) in the absence of a claim of negligent or wanton hiring and/or supervision. In each of the cases wherein we have addressed the admissibility of such evidence, the plaintiffs claims sought both to impose vicarious liability for fraud and to recover for the principal's own negligent or wanton hiring and/or supervision. See Alfa Mut. Ins. Co. v. Roush, 723 So.2d at 1256-57; Life Ins. Co. of Georgia v. Johnson, 684 So. 2d 685, 690 (Ala.), vacated on other grounds, 519 U.S. 923, 117 S. Ct. 288, 136 L. Ed. 2d 207 (1996), overruled on other grounds, 701 So. 2d 524 (Ala.1997); North-western Mut. Life Ins. Co. v. Sheridan, 630 So. 2d 384, 390 (Ala.1993). Sheridan involved the application of § 6-11-27(a) in the context of a stolen premium. There, the insurance company argued that § 6-11-27 shielded it from vicarious liability for punitive damages, because of a lack of evidence to prove the elements of § 6-11-27(a). Unlike Henry, the Sheridans did assert a timely claim alleging that the insurance company had negligently or wantonly hired and/or supervised its agent, together with a claim alleging fraud. We stated in Sheridan: 630 So. 2d at 390; but see Alfa Mut. Ins. Co. v. Roush, 723 So. 2d at 1256 ("a plaintiff who establishes a principal's vicarious liability for its agent's acts does not automatically establish a claim of wantonness against the principal"). Implicit in this language in Sheridan is a recognition that information contained in an employee's personnel file is relevant to establish a claim of negligent or wanton hiring and/or supervision. Section 6-11-27(a) does not constitute a license for unlimited discovery as to all subjects listed therein. Instead, the statute merely identifies certain situations that, if proved by the evidence and material to the claims set forth in the complaint, would justify or support the imposition of punitive damages against a defendant, on the basis of that defendant's vicarious liability for the acts of another. Because the claim alleging negligent or wanton supervision and/or hiring is no longer a part of Henry's case, she is not entitled to discovery of information or materials that would be material only as to that claim, such as Walley's personnel files from prior employers. For us to hold otherwise would allow Henry, in essence, *83 to revive a time-barred claim against KC Life. We conclude that the trial court did not abuse its discretion in limiting the manner by which Henry could contact others who had purchased life insurance policies from KC Life, through John Walley. We further conclude that the trial court did not abuse its discretion in quashing the nonparty subpoenas that sought information relevant only to a claim that had been dismissed because it was barred by the statute of limitations. WRIT DENIED. HOOPER, C.J., and MADDOX, HOUSTON, and SEE, JJ., concur. LYONS, J., concurs in part and concurs in the result in part. COOK, JOHNSTONE, and ENGLAND, JJ., dissent. LYONS, Justice (concurring in part and concurring in the result in part). I concur in Part II. However, I am troubled by the potential First Amendment implications of a restraint upon counsel's right to contact a witness on behalf of a client, a restraint approved by Part I. Absent a demonstrated need for some restriction on that right, such as evidence showing prior conduct by counsel in violation of ethical proscriptions, such restrictions as the trial court imposed in this case could raise First Amendment free-speech issues. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 104, 101 S. Ct. 2193, 68 L. Ed. 2d 693 (1981). The defendant presented no such evidence in this case; neither, however, did the plaintiff claim a violation of her constitutional rights. Therefore, as to Part I, I concur in the result. JOHNSTONE, Justice (dissenting). I respectfully dissent from the denial of a writ of mandamus. The writ should issue to redress both of the erroneous discovery decisions by the trial court. The first erroneous discovery decision by the trial court is its limitation on the plaintiff's communication with certain potential material witnesses. The trial court correctly allows the plaintiff discovery of the names, addresses, and telephone numbers of certain "person[s] or other legal entit[ies] who purchased ... life insurance polic[ies] from defendant, Walley, which [were] issued by defendant, Kansas City Life from 1992 until the present." However, contrary to the express holdings of Ex parte Stephens, 676 So. 2d 1307 (Ala.1996), Ex parte Howell, 704 So. 2d 479 (Ala.1997), and Ex parte Hicks, 727 So. 2d 23 (Ala. 1998), the trial court erroneously imposed the following restriction on the plaintiff: This restriction unduly curtails the plaintiff's discovery rights. First, inevitably many of these potential witnesses will fail to "take the affirmative step of contacting the plaintiff's attorney," because of either oversight, lack of incentive, common inertia, or the pervasive psychology of not wanting to "get involved." Second, the restriction is arbitrarily discriminatory. Not only does our law not allow such a restriction on this category of witness, but likewise our law does not allow such a restriction on any other category of witness. For instance, would this Court countenance for one minute a trial judge's so restricting a defendant in its communications with doctors who had treated a plaintiff for a condition at issue, or with a plaintiff's friends or acquaintances who might know facts relating to liability or damages, or with a plaintiff's former employers *84 who might know the plaintiff's habits or complaints relating to liability or damages? The main opinion resolves the problem of the trial judge's above-quoted restriction simply by expressly overruling Ex parte Hicks, supra, Ex parte Stephens, supra, and "prior cases" to like effect and adopting a conclusion contrary to those precedents without stating any reason whatsoever for disregarding the doctrine of stare decisis. To overrule a precedent without stating any good reason for making an exception to the doctrine of stare decisis seems to abandon the rule of law. The case of Lindsay v. United States Savings & Loan Co., 120 Ala. 156, 167, 24 So. 171 (1898), is instructive on stare decisis: The second erroneous discovery ruling by the trial court is its order quashing certain nonparty subpoenas issued by the plaintiff seeking information that Kansas City Life knew or should have known of the unfitness of its agent Walley while he was committing his tortious acts against the plaintiff. Section 6-11-27(a), Ala.Code 1975, authorizes the introduction of such evidence to prove the vicarious liability of a principal for punitive damages for the wrongful conduct of an agent under the doctrine of respondeat superior: Rule 26(b)(1), Ala.R.Civ.P., provides: "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...." Rule 401, Ala. R. Evid., provides: "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of *85 consequence to the determination of the action more probable or less probable than it would be without the evidence." The Advisory Committee's Notes explain: All that § 6-11-27(a), supra, addresses are the requirements for imposing punitive damages in a claim of indirect, or vicarious, liability, which the plaintiff is pursuing. Yet the main opinion deprives the plaintiff of her discovery on the rationale that she does not have a direct-liability claim against the defendant. The plaintiff began this action by asserting claims of direct liability as well as claims of indirect, or vicarious, liability against Kansas City Life Insurance Company. The claims of direct liability were for Kansas City Life's alleged negligence and wantonness in the hiring, training, supervision, and retention of Walley as its agent. The trial court dismissed these claims of direct liability; and the plaintiff does not contest the dismissal of these direct-liability claims. Rather, the plaintiff is pursuing her claims of indirect, or vicarious, liability against Kansas City Life for the wrongful conduct of its agent Walley under the doctrine of respondeat superior. 770 So. 2d at 82. The main opinion is saying, in effect, that the right to this type of discovery is dependent on the existence of a distinct or independent claim of direct liability against a principal for "negligent or wanton hiring and/or supervision." But § 6-11-27(a) contains no such requirement. By its own terms, § 6-11-27(a) governs indirect or vicarious, liability of the principal that is, the liability of the principal for the conduct of an agentas distinguished from the direct liability of the principal for its own wrongdoing in negligently or wantonly hiring, training, supervising, or retaining the agent. Section 6-11-27(a) does not in any way require either the existence or the nonexistence of a distinct or independent claim against the principal on a theory of direct liability. Rather, this code section is entirely devoted to stating the requirements for recovering punitive damages against a principal on a claim of indirect, or vicarious, liability for the wrongful conduct of an agent under the doctrine of respondeat superior. For a plaintiff to recover punitive damages against a principal for vicarious liability for the wrongful act of the agent, § 6-11-27(a) requires proof of at least one of four kinds of culpability in addition to the essential elements of the tort and the agency traditionally recognized by common law for vicarious liability. One of these four kinds of additional culpability alternatively required by § 6-11-27(a) for vicarious liability for punitive damages is that the principal "(i) knew or should have known of the unfitness of the agent, employee, or servant, and employed him or continued to employ him, or used his services without proper instruction with a disregard of the rights or safety of others." Northwestern Mut. Life Ins. Co. v. Sheridan, 630 So. 2d 384 (Ala.1993). The statutory addition of this culpability to the essential elements necessarily authorizes the discovery and proof of this culpability. The fortuity that such discovery and proof might also discover and prove a claim of direct liability against the principal for negligence or wantonness in the hiring, training, supervision, or retention of the *86 agent, see Sheridan, supra, in no way makes the existence of a distinct or independent direct-liability claim a prerequisite to such discovery or proof. The trial court order quashing the plaintiff's subpoenas and today's decision's denial of a writ of mandamus to vacate that order by the trial court deprive this plaintiff of her right to discover and to prove a case for punitive damages against this defendant in a way expressly authorized by § 6-11-27(a). This injustice is not eliminated or ameliorated by the existence of the three other alternatives provided by this Code section, as the actual circumstances of the particular case before us may or may not include these three other alternative kinds of culpability. COOK and ENGLAND, JJ., concur. [1] However, the separate claims against KC Life were dismissed on the basis that they were barred by the two-year statute of limitations. [2] Given that the record before us does not contain a copy of Henry's complaint, we are unable to say what the precise nature of the fraud alleged to have been committed by Walley and/or KC Life was, other than that the fraud was in some way connected to Walley's conversion of her premium payments.

May 5, 2000

6c5ebcfd-f35e-433c-b577-a1a1393e82dd

ConAgra, Inc. v. Turner

776 So. 2d 792

1981614

Alabama

Alabama Supreme Court

776 So. 2d 792 (2000) ConAGRA, INC. v. Calvert TURNER. 1981614. Supreme Court of Alabama. July 7, 2000. *793 Robert H. Harris and David W. Langston of Harris, Caddell & Shanks, P.C., Decatur, for appellant. Mitchell K. Shelly and Robert M. Baker of Alexander, Corder, Plunk, Baker, Shelly & Shipman, P.C., Athens, for appellee. PER CURIAM. This is a retaliatory-discharge case filed by Calvert Turner against ConAgra, Inc., a feed and flour milling operation with a plant located in Decatur, Alabama. Turner alleged in his complaint that he was terminated by ConAgra for being injured on the job and for seeking workers' compensation benefits. The Legislature has created a statutory cause of action for retaliatory discharge under the Alabama Workers' Compensation Act, § 25-5-11.1, Ala.Code 1975. A jury returned a verdict for Turner against ConAgra and assessed compensatory damages in the amount of $50,000 and punitive damages in the amount of $250,000. ConAgra appeals from this judgment. We affirm. ConAgra hired Turner as a laborer on September 9, 1997. His duties included unloading the grain barges and cleaning the empty bins and grain elevators. Carroll Tripp, the elevator supervisor, testified that Turner's job required "extremely hard physical labor" and that ConAgra has "a hard time finding people who can work in our elevator situation. We're rough on people." The record reflects that Turner was a good employee. Carroll Tripp praised his job performance. His immediate supervisor, Frankie Skinner, also testified that Turner was considered a good and diligent *794 employee and that he never saw Turner work in an unsafe manner. The plant manager, Paul Shields, never saw Turner engage in any unsafe conduct. Turner worked from the date he was hired until he was terminated on January 9, 1998. ConAgra contended at trial that the sole reason it terminated Turner was for failing to work in a safe manner. ConAgra based this contention on three incidents. The first was the bobcat accident. During the unloading of a barge, ConAgra employee Bobby Garrison, who was driving a bobcat, ran over a cable, causing the bobcat he was driving to lean on its side. Turner raced to Garrison's rescue, but as he tried to help Garrison off the machine, it shifted and Turner was pinned between the bobcat and the side of the barge. As a result, Turner sustained injuries to his back, leg, and pelvis. The second incident occurred when Turner and another employee were attempting to unload a railway car full of grain. The process requires an employee to hook one end of a large cable to the railway car, then wrap the opposite end of the cable around a machine with a large spool. Turner's back was injured when the machine and cable jerked him. He testified that he was performing his job exactly as he had been trained. The third incident occurred on January 8, 1998, when Turner sustained another on-the-job injury. The record reflects that Turner reported to work at 2:45 a.m. on a cold morning. A river barge, 200 feet in length and 12 feet in depth, needed to be unloaded. The unloading required two workers to crawl 100 feet through the grain with a 30-pound cable. Another employee, known as the marine operator, was charged with providing the workers with continuous slack on the cable while each worker crawled through the barge. On the day in question, the marine operator failed to provide Turner with continuous cable slack and Turner's back popped while he was pulling the cable. He reported his injury to ConAgra and received medical treatment. The following day ConAgra terminated Turner for allegedly working in an unsafe manner. ConAgra raises three issues on appeal. First, ConAgra contends that the jury's award of $50,000 in compensatory damages is excessive. However, because ConAgra failed to challenge the excessiveness of the compensatory-damages-award specifically as a ground for a new trial, this issue is procedurally barred. State v. Ferguson, 269 Ala. 44, 45, 110 So. 2d 280 (1959) ("[T]he question of the excessiveness of the jury's verdict will not be considered or determined on appeal unless such question is first presented to the lower court which is usually done by a motion for a new trial. The motion must specifically challenge or question the amount of the verdict as being excessive." (Emphasis added.)) See also § 12-22-71, Ala.Code 1975, Peete v. Blackwell, 504 So. 2d 222 (Ala.1986), and Feazell v. Campbell, 358 So. 2d 1017 (Ala. 1978). In order to recover punitive damages under the statutory cause of action for retaliatory discharge, the statute requires the employee to prove, by clear and convincing evidence, oppression, fraud, malice or wantonness. § 6-11-20, Ala.Code 1975. ConAgra contends that Turner failed to present evidence that will support a punitive-damages verdict of $250,000 based upon oppression, fraud, malice or wantonness. The trial judge, considering ConAgra's claim of excessiveness found as follows: As stated by the trial judge, the facts clearly support the jury's finding that Turner proved by clear and convincing evidence that ConAgra acted with oppression, malice or wantonness towards him. See Motion Indus., Inc. v. Pate, 678 So. 2d 724, 734 (Ala.1996). We next consider ConAgra's contention that the $250,000 punitive-damages-award is excessive. The trial judge held a Hammond[1] hearing and concluded that the award is not excessive and does not deny ConAgra due process under the circumstances of this case: We have carefully studied the trial judge's discussion of the factors established in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), and BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809, (1996), and agree with his conclusions. *799 For the reasons stated above, the judgment of the trial court is due to be affirmed. AFFIRMED. MADDOX, COOK, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. LYONS, J., concurs in the judgment affirming the award of compensatory damages and otherwise concurs both in the judgment and the opinion. HOOPER, C.J., concurs in the result. HOUSTON and SEE, JJ., concur in part and dissent in part. LYONS, Justice (concurring in the judgment affirming the award of compensatory damages and otherwise concurring both in the judgment and the opinion). I cannot agree with the refusal to review the question of excessiveness of the award of compensatory damages, a refusal based on the defendant's failure to renew its motion for a judgment as a matter of law at the close of all the evidence. In B.A.S.S. Coal, Inc. v. Black Warrior Minerals, Inc., 579 So. 2d 1325 (Ala.1991), the defendants failed to move either for a new trial or for a judgment notwithstanding the verdict (now a judgment as a matter of law). This Court refused to consider on appeal an argument that the plaintiff had not presented a scintilla of evidence to justify the amount of damages awarded, because of an improper apportioning of damages among breach-of-contract, fraud, and conversion counts. The issue of excessiveness of compensatory damages is sufficiently preserved when excessiveness is included as a ground in support of a motion for new trial. ITEC, Inc. v. Automated Precision, Inc., 623 So. 2d 1139 (Ala.1993). Only a hypertechnical reading of ConAgra's motion for new trial supports the view that it attacks only the sufficiency of the evidence to support an award of any compensatory damages. I would hold that ConAgra's motion marginally satisfies the requirement of including the ground of excessiveness of the verdict for compensatory damages. However, it is not clear from the materials before us that the bases for the grounds here argued (inadequacy of proof of mental anguish, inadequacy of proof of out-of-pocket loss, and insufficient basis for a determination of future damages) were presented to the trial court. A trial judge's order should not be reversed for the judge's failing to heed an argument never made in the trial court. See Goodyear Tire & Rubber Co. v. Vinson, 749 So. 2d 393 (Ala.1999) (Lyons, J., concurring specially). However, even if these arguments had been made, I could not say that the jury's verdict awarding compensatory damages should be disturbed. I concur in all other aspects of the opinion. HOUSTON, Justice (concurring in part and dissenting in part). I concur insofar as the Court affirms the award of compensatory damages, and I concur to affirm the punitive award up to $150,000. I dissent insofar as the Court affirms the award of punitive damages in excess of $150,000. SEE, J., concurs. [1] Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986).

July 7, 2000

134e39c5-56f7-4dd9-950e-3ff56f7bc7fd

Chestang v. Chestang

769 So. 2d 294

1981370

Alabama

Alabama Supreme Court

769 So. 2d 294 (2000) Russell C. CHESTANG, Jr. v. Edgar Frank CHESTANG. 1981370. Supreme Court of Alabama. April 28, 2000. *295 Stewart L. Howard of Brooks & Hamby, P.C., Mobile, for appellant. Thomas R. McAlpine of Whitfield & McAlpine, P.C., Mobile, for appellee. MADDOX, Justice. Russell C. Chestang, Jr. (the "nephew"), appeals from a circuit judge's order holding him in contempt of court for violating an injunction prohibiting him from interfering with the enjoyment of an easement and ordering him to pay approximately $25,000 in damages and attorney fees to Edgar Frank Chestang (the "uncle"). We affirm. Russell C. Chestang, Sr., granted an easement over his property in Mobile County for the benefit of his brother, Edgar Frank Chestang. After Russell Chestang granted him an easement, Edgar Frank Chestang hired a surveyor and contractors to survey the easement and to build a road across it. The easement allowed easier access than was otherwise available from public roadways, to property that Edgar Frank Chestang owned and from which he removed timber and dirt for sale. On August 19, 1998, Russell C. Chestang, Sr., died. After his death, his son, Russell C. Chestang, Jr., and others began interfering with the uncle's use of the easement. *296 The uncle filed a verified complaint for injunctive relief, and the trial court issued a temporary restraining order on September 2, 1998, enjoining the nephew from interfering with his uncle's use of the easement. The trial judge conducted an ore tenus hearing on September 9, 1998. On September 14, 1998, the judge entered an injunctive order in which he found the easement valid. He also wrote: (C.R. at 25-26.) The nephew attempted to appeal the injunction, but the Court of Civil Appeals, on December 8, 1998, dismissed his appeal, apparently as untimely. Chestang v. Chestang (No. 2980210), 771 So. 2d 521 (Ala.Civ. App.1998) (table). During the pendency of that appeal, the nephew continued to interfere with the uncle's use of the easement. The uncle moved the trial court to hold the nephew in contempt. The trial judge held an ore tenus hearing on the uncle's motion on March 9, 1999, and on March 30, 1999, entered the following order: The nephew moved for a "reconsideration," which the trial court denied. This appeal followed. The nephew argues that the trial judge's order makes an adjudication of criminal contempt, rather than civil contempt, and that the provisions of § 12-11-30(5), Ala.Code 1975, therefore limit the amount of damages the trial judge could impose. That Code section provides: (Emphasis added.) Because we take note of the sentence emphasized in this quotation of the Code section, and because we conclude that the order of March 30, 1999, made an adjudication of civil contempt, rather than criminal contempt, we reject the nephew's argument.[2] In 1994, this Court adopted Rule 70A, Ala. R. Civ. P., defining "civil contempt" and "criminal contempt" as applied in "contempt proceedings arising out of civil actions." That rule defines civil contempt as the "willful, continuing failure or refusal... to comply with a court's lawful ... order ... that by its nature is still capable of being complied with." Rule 70A(a)(2)(D), Ala. R. Civ. P. In his March 30, 1999, order, the trial judge found that the nephew had "intended to make it extremely difficult for the [uncle's] dirt haulers to use the road" and that the nephew had engaged in "a repeated pattern of harassment [of] the [uncle] and his agents." Thus, the trial court found that the nephew had willfully failed to comply with the September 14, 1998, injunctive order and had continued in that willful failure. In addition, the September 14, 1998, order was one that, "by its nature [was] still capable of being complied with," because it enjoined the nephew from interfering with the uncle's use of the easement from that date forward. Thus, the nephew's actions came within the definition of "civil contempt" in Rule 70A. The order of March 30, 1999, was clearly not an adjudication of criminal contempt. Rule 70A(a)(2)(C) defines two categories of "criminal contempt." One of those categories is clearly not applicable to this case.[3] The other category of "criminal contempt" is defined as: Rule 70A(a)(2)(C)(ii), Ala. R. Civ. P. (Emphasis added.) A key element of this category of "criminal contempt" is that the contempt order is designed to punish. Further, the Code section cited by the nephew, § 12-11-30(5), speaks of a court's "punish[ing]" a criminal contempt by imposing fines and by imprisoning the contemnor. In this present case, the contempt order does not impose a term of imprisonment. Further, the trial court's order clearly indicates (by its reference to the testimony about the financial loss the uncle had suffered) that the money it ordered the nephew to pay was in the nature of compensatory damages rather than in the nature of a punitive fine. The nephew argues that "civil contempt proceedings look only to the future" and that this case, therefore, must present an instance of criminal contempt, because the behavior made the subject of the nephew's liability had already occurred. This argument is without merit. In Lightsey v. Kensington Mortgage & Finance Corp., 294 Ala. 281, 287, 315 So. 2d 431, 436 (1975), Justice Merrill addressed the question "whether Alabama permits compensatory fines[4] in favor of the adverse party in contempt proceedings." In that case, after discussing the law of other states, this Court explicitly recognized that such an award may be made. See also Moody v. State ex rel. Payne, 355 So. 2d 1116 (Ala. 1978); and Town of Leighton v. Johnson, 540 So. 2d 71 (Ala.Civ.App.1989). Such an award, by its very nature, must be predicated on past action that has caused injury to the party moving for a finding of contempt of court. Therefore, the fact that the compensatory award in the trial judge's March 30, 1999, order is based on the nephew's past actions does not require the conclusion that the order was an adjudication of criminal contempt. The nephew argues that the trial judge's award of attorney fees should be reversed, because, he says, an award of attorney fees is not allowed in a case of criminal contempt. As stated above, however, this is a case of civil contempt, and attorney fees may be awarded in such a case. Moody v. State ex rel. Payne, 355 So. 2d at 1119. The nephew's argument on this point, therefore, is without merit. The nephew's final argument is that the amount of the trial judge's award of damages was not supported by the evidence. We disagree. The evidence was conflicting as to the amount of damage the uncle had incurred. "Where evidence is presented to the trial court ore tenus, a presumption of correctness exists as to the court's findings on issues of fact; its judgment based on those findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence." Hart v. Jackson, 607 So. 2d 161, 162 (Ala.1992). The uncle's contractor, James Edward Taylor, testified in part as follows concerning the income lost as a result of the nephew's actions: (R.T. at 57.) Mr. Taylor also testified that he estimated the uncle's revenue loss at *299 approximately $5,000 per week. Mr. Taylor and others testified that the accumulated work stoppages amounted to four or four and one-half weeks. Therefore, we cannot conclude that the trial court's judgment was "clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence." Hart v. Jackson, supra. In light of the broad discretion trial judges have to enforce their own orders, see Jones v. City of Opelika, 242 Ala. 24, 4 So. 2d 509 (1941), and given the ore tenus standard of review, we affirm the judgment. AFFIRMED. HOOPER, C.J., and COOK, LYONS, and JOHNSTONE, JJ., concur. [1] The transcript of the show-cause hearing includes the following testimony from James Edward Taylor, the uncle's contractor: "Q. Have you had problems with that equipment on that dirt pit? "A. We've had some problems with vandalism to it. We've had a service truck that wastaking the fire extinguisher out and it was shot inside, you know, the service truck. We had some wires pulled off of some off-the-road trucks. We've had some nails and screws and rocks put into fuel tanks. We've had, what I feel like, an excessive amount of flats. We've had a lot of stuff that costs us a good bit of money to correct. Yes, sir." (R.T. at 50.) [2] The nephew does not challenge the trial judge's finding that he had violated the September 14, 1998, order. He does not argue that the evidence was insufficient to support the finding that he was, in fact, in contempt. Therefore, the key question is whether it was civil contempt or criminal contempt. [3] That category is defined as: "Misconduct of any person that obstructs the administration of justice and that is committed either in the court's presence or so near thereto as to interrupt, disturb, or hinder its proceedings...." Rule 70A(a)(2)(C)(i), Ala. R. Civ. P. [4] The use of the word "fine" contributes somewhat to the confusion about the distinction between civil and criminal contempt. However, as Justice Merrill discussed in Lightsey, 294 Ala. at 285, 315 So. 2d at 436, quoting from Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797 (1911), the distinction is not always clear. See also State v. Thomas, 550 So. 2d 1067, 1073 (Ala.1989). This present case, however, clearly presents an adjudication of civil contempt.

April 28, 2000

33c1ef58-10a7-42d5-8651-756cb8409914

Ex Parte Baker

780 So. 2d 677

1980589

Alabama

Alabama Supreme Court

780 So. 2d 677 (2000) Ex parte Willie BAKER. (Re Willie Baker v. State). 1980589. Supreme Court of Alabama. April 21, 2000. Rehearing Denied July 28, 2000. *678 John Bertolotti, Jr., Mobile, for petitioner. Bill Pryor, atty. gen., and Beth Slate Poe, asst. atty. gen., for respondent. JOHNSTONE, Justice. Willie Baker was convicted of robbery in the first degree, a violation of § 13A-8-41(a)(1), Ala.Code 1975, and was sentenced to 25 years' imprisonment. Baker filed a motion for a new trial on the principal ground that the trial court improperly admitted, in violation of Rule 404(b), Ala. R. Evid., evidence of a collateral act, another robbery reportedly committed by Baker. After a hearing, the trial court denied the motion. Baker appealed, and the Court of Criminal Appeals affirmed Baker's conviction and sentence in an unpublished memorandum. Baker v. State (No. CR-97-0807), 744 So. 2d 956 (Ala.Crim.App.1998) (table). Baker petitioned this Court for a writ of certiorari, which we granted to determine whether the admission into evidence of the testimony about the other robbery did violate the general exclusionary rule of Rule 404(b). At trial, the State offered testimony from a witness who was robbed a month before the charged offense. The State offered the testimony for the purpose of proving identity, which Baker's counsel had placed in issue through his cross-examination of the State's other witnesses. Defense counsel objected to the testimony on the grounds that the testimony was irrelevant, immaterial, and prejudicial. The trial court allowed the witness to testify for the limited purpose of establishing Baker's identity. At the close of all the evidence, defense counsel moved for a mistrial on the grounds that the testimony about Baker's collateral conduct was not relevant and that the collateral conduct was not similar to the charged offense. When the trial court denied the motion, defense counsel requested the trial court to instruct the jury that the testimony was admissible only to show Baker's identity in the charged offense, not to show Baker's *679 bad character. The trial court refused to give any limiting instruction concerning the collateral-conduct testimony. Defense counsel again challenged the admissibility of the collateral-conduct testimony in a motion for a new trial. At a hearing on the motion, counsel argued that the testimony was inadmissible under the general exclusionary rule of Rule 404(b), and that the identity exception was not applicable because there was no evidence that the collateral act and the charged offense were committed in the same novel or peculiar manner. Rule 404(b) provides that evidence of a collateral act by the defendant is not admissible to prove the bad character of the defendant. "`Evidence of prior [or subsequent] bad acts of a criminal defendant is presumptively prejudicial to the defendant.'" Bolden v. State, 595 So. 2d 911, 913 (Ala.Crim.App.1991), cert. denied, 595 So. 2d 914 (Ala.1992) (quoting Ex parte Cofer, 440 So. 2d 1121, 1124 (Ala.1983)). However, such evidence is admissible for other material purposes, including proof of identity. Rule 404(b). Collateral-act evidence is admissible to prove identity only when the identity of the person who committed the charged offense is in issue and the charged offense is committed in a novel or peculiar manner. C. Gamble, McElroy's Alabama Evidence § 69.01(8) (5th ed.1996); Ex parte Arthur, 472 So. 2d 665 (Ala.1985); and Robertson v. State, 680 So. 2d 929 (Ala.Crim.App.1994). "Under the identity exception to the general exclusionary rule prohibiting the admission of other or collateral crimes as substantive evidence of the guilt of the accused, the prior crime is not relevant to prove identity unless both that and the now-charged crime are `signature crimes' having the accused's mark and the peculiarly distinctive modus operandi so that they may be said to be the work of the same person." Bighames v. State, 440 So. 2d 1231, 1233 (Ala.Crim.App.1983) (emphasis added). "[E]vidence of a prior crime is admissible only when the circumstances surrounding the prior crime and those surrounding the presently charged crime `exhibit such a great degree of similarity that anyone viewing the two offenses would naturally assume them to have been committed by the same person.'" Ex parte Arthur, 472 So. 2d at 668 (quoting Brewer v. State, 440 So. 2d 1155, 1161 (Ala.Crim.App.1983)). See also Mason v. State, 259 Ala. 438, 66 So. 2d 557 (1953); and Govan v. State, 40 Ala.App. 482, 115 So. 2d 667 (1959) (recognizing that the identity exception is applicable only where both the prior crime and the charged offense were committed in the same special or peculiar manner). Regarding the admissibility of Rule 404(b) evidence to prove identity, the United States Court of Appeals for the Eleventh Circuit has stated that a court must determine that: United States v. Clemons, 32 F.3d 1504, 1508 (11th Cir.1994), cert. denied, 514 U.S. 1086, 115 S. Ct. 1801, 131 L. Ed. 2d 728 (1995). "When extrinsic offense evidence is introduced to prove identity, the likeness of the offenses is the crucial consideration. The physical similarity must be such that it marks the offenses as the handiwork of the accused." Id. at 1508 (quoting United States v. Miller, 959 F.2d 1535, 1539 (11th Cir.1992) (quoting United States v. Beechum, 582 F.2d 898, 912 n. 15 (5th Cir.1978) (en banc))). See also United States v. Cardenas, 895 F.2d 1338, 1343 (11th Cir. *680 1990); and C. Gamble, McElroy's Alabama Evidence § 69.01(8) (stating that a greater degree of similarity between the charged offense and the collateral act is required for admissibility to prove identity than for admissibility to prove intent or knowledge). In this case, the circumstances of the collateral act and the charged offense are not similar in any substantial degree of detail and are not novel or peculiar. The witness who testified about Baker's collateral conduct stated that, on the night of September 20, 1997, she and a male friend were exiting Leo's Lounge on Wilson Avenue in Prichard when Baker and another man accosted them. She testified that Baker grabbed her purse and said "give it up" while the other man, who was armed with a pistol, reached into her friend's pocket and demanded that he also "give it up." Although the witness could not identify the clothes worn by the robbers, she was certain that Baker was the man who took her purse because she could "identify him by his eyes." The witness identified Baker in a photo-lineup and in court. The victim in the charged offense testified that, on the night of October 21, 1997, he stopped his car on the side of Wilson Avenue so his female friend could use a pay telephone located across the street from Leo's Lounge. He was standing beside his car waiting for his friend when two black men, one of whom was armed with a shotgun, robbed him of his tennis shoes, $35.00, and his car keys. The robbers allowed the victim and his female friend to run across the street to Leo's Lounge. They then searched the victim's car and took the wallet from the purse of the victim's friend. In a photo-lineup and in court, the victim identified Baker as the man who pointed the shotgun at him. The only similarities between the collateral act and the charged offense are that the robberies occurred at night and within 100 yards of each other on the same street. The differences between the robberies are great. The robberies occurred over a month apart. The armed robber in each offense was different: Baker's accomplice was the armed robber in the collateral act and Baker was the one armed in the charged offense. Different weapons were used: a pistol in the collateral act and a shotgun in the charged offense. The gender of the victims and the property taken from the victims were different: the female victim of the collateral act had her purse taken, and the male victim of the charged offense had his tennis shoes, cash, and car keys taken. There is no evidence that the collateral act and the charged offense were both committed in a unique, novel, or peculiar manner that would distinguish them as the handiwork of the accused. Therefore, the testimony about the prior robbery reportedly committed by Baker was inadmissible in the trial of the charged offense. Because the trial court erred in admitting this prejudicial collateral-act evidence, the judgment of the Court of Criminal Appeals is reversed and the cause remanded with instructions for the Court of Criminal Appeals to remand it to the trial court for a new trial. REVERSED AND REMANDED. MADDOX, COOK, SEE, LYONS, and ENGLAND, JJ., concur. HOOPER, C.J., and HOUSTON, J., dissent. BROWN, J., recuses herself.[*] HOUSTON, Justice (dissenting). The collateral robbery occurred 31 days before the robbery charged in this case. Both robberies occurred at night and both occurred in the vicinity of Leo's Lounge in Prichard. The persons robbed were outside *681 side. In the robbery at issue, the male victim emptied his pockets upon demand by the robbers and gave them his cash and car keys. His friend's purse was in his car, and her wallet, which was inside her purse, was taken. In the collateral robbery, the robbers took the female victim's purse and reached into her male companion's pocket to take anything there. The male victim of the charged robbery testified at Baker's trial. The defense challenged his ability to identify the defendant, Willie Baker, as the robber, and this challenge put the identity of the robber at issue. In my opinion, this is the classic situation of when the decision to allow or not to allow evidence of collateral crimes or acts as part of the State's case rests in the sound discretion of the trial court. Thomas v. State, 409 So. 2d 955 (Ala.Crim.App. 1981); Jones v. State, 460 So. 2d 1384 (Ala. Crim.App.1984). I would affirm the judgment of the Court of Criminal Appeals; therefore, I dissent. HOOPER, C.J., concurs. [1] Rule 404(b), Ala. R. Evid, which is modeled after Rule 404(b), Fed.R.Evid., requires that evidence of collateral acts be excluded if its probative value is substantially outweighed by its prejudicial effect. See Rule 403; and C. Gamble, Gamble's Alabama Rules of Evidence § 404(b) (1995). [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

April 21, 2000

22df4113-57d3-4eaa-8ab0-8d4013222b62

Ex Parte Ballew

771 So. 2d 1040

1990521

Alabama

Alabama Supreme Court

771 So. 2d 1040 (2000) Ex parte Seth BALLEW. In re Seth Ballew v. Town of Priceville. 1990521. Supreme Court of Alabama. April 14, 2000. E. Britton Monroe of Lloyd, Schreiber & Gray, P.C., Birmingham, for petitioner. Gregory S. Martin of Lanier Ford Shaver & Payne, P.C., Huntsville, for respondent. HOUSTON, Justice. Seth Ballew, d/b/a Ballew Sanitation, filed an action in the Morgan Circuit Court to recover damages against the Town of Priceville for breach of contract. The trial *1041 court entered a summary judgment for Priceville, holding that the contract between Ballew and Priceville violated Alabama's Competitive Bid Law, Ala.Code 1975, § 41-16-50, and was therefore void. Ballew appealed to the Court of Civil Appeals, which affirmed. Ballew v. Town of Priceville, 771 So. 2d 1037 (Ala.Civ.App. 1999). We granted Ballew's petition for certiorari review. We affirm. In 1987 Ballew and Priceville entered into a contract for Ballew to provide garbage-collection services for the residents of Priceville from March 1987 through February 1990. The contract had no renewal term, but at its expiration the parties continued to operate under the terms of the original contract, except at an increased rate of compensation for Ballew. The rate was increased three more times before this conflict arose, sometime in early 1998. However, at no point after the expiration of the original contract was the contract submitted for competitive bids. The sole issue before this Court is whether Priceville may be equitably estopped from using the Competitive Bid Law as a defense to the enforcement of the contract. This Court reviews a summary judgment de novo, and in doing so it applies the same standard as the trial court. Bussey v. John Deere Co., 531 So. 2d 860 (Ala. 1988). A summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The opinion of the Court of Civil Appeals correctly pointed out that this case is governed by four earlier decisions of this Court: Alford v. City of Gadsden, 349 So. 2d 1132 (Ala.1977); Maintenance, Inc. v. Houston County, 438 So. 2d 741 (Ala. 1983); City of Guntersville v. Alred, 495 So. 2d 566 (Ala.1986); and Layman's Sec. Co. v. Water Works & Sewer Bd. of the City of Prichard, 547 So. 2d 533 (Ala.1989). Ballew, 771 So. 2d at 1038. In each of those cases, this Court addressed the question whether the doctrine of estoppel may be used against a municipal corporation. Neither Alford or Alred dealt with the Competitive Bid Law; instead, each involved a situation where the contract between the parties was void because the formalities of executing the contract had not been complied with. More specifically, in each of those cases the city used a resolution to approve the contract, instead of using an ordinance, as the law required. This Court stated in each case that the doctrine of estoppel is rarely applied against a municipal corporation, but held in each case that the doctrine was appropriate. Alford, 349 So.2d at 1135-36; Alred, 495 So. 2d at 568. This Court distinguished the Alford case in Maintenance, Inc. v. Houston County, 438 So. 2d 741.[1] There, Maintenance, Inc., and Houston County entered into a contract for the disposal of solid waste. When the contract expired, the parties renegotiated and signed a second contract that did not comply with the Competitive Bid Law. The County later canceled the contract, and Maintenance, Inc., sued, alleging breach of contract. In its defense, the County asserted that the contract was void because it did not comply with the Competitive Bid Law, and Maintenance, Inc., made an estoppel argument. This Court stated: Maintenance, 438 So. 2d at 744. Therefore, this Court expressly limited the use of the estoppel doctrine against a municipality to a situation where the contract was void as a result of a failure to comply with the formalities of execution, such as the situations in Alford and Alred. However, the law appears to have been confused by our opinion in Layman's Security Co. That case involved a contract between Layman's Security Company and the Prichard Water Works and Sewer Board; the contract was void because it had not been entered into in compliance with the Competitive Bid Law. This Court faced the issue whether Layman's Security Company could raise the defense of estoppel. We held: Layman's, 547 So. 2d at 535-36. While never explicitly overruling the Maintenance decision, Layman's did appear to question its reasoning, by citing Alford and Alred and discussing the merits of the question whether there was detrimental reliance on the part of Layman's. It would appear that Layman's would not be able to assert estoppel under the Maintenance rationale, for the sole reason that the contract violated the Competitive Bid Law, and Alford, Alred, and the question of detrimental reliance would never be discussed. We reaffirm the holding in Maintenance that refused to extend the use of the doctrine of estoppel to preclude the defense of noncompliance with the Competitive Bid Law. Therefore, to the extent that Layman's conflicts with Maintenance, it is overruled, and an estoppel argument may be made only against "city officials who merely failed to follow the *1043 formalities of contract execution." Maintenance, 438 So. 2d at 744. In the present case, Priceville has defended Ballew's breach-of-contract claim by asserting that any contract between the parties made after February 1990when the original contract expiredis void because it was not open to competitive bidding, as is required by the Competitive Bid Law. Alabama's Competitive Bid Law requires that a contract that provides for the expenditure of county or municipal funds "shall be made under contractual agreement entered into by free and open competitive bidding, on sealed bids, to the lowest responsible bidder." § 41-16-50(a), Ala.Code 1975. Section 41-16-51(a)(10) provides an exception to the requirement of § 41-16-50(a) for "[e]xisting contracts up for renewal for sanitation or solid waste collection, recycling, and disposal between municipalities or counties, or both, and those providing the service." However, this exception would not apply here, because the contract between Ballew and Priceville had no renewal clause, and one of the terms of the original contract, the rate, changed four times between the time when the original contract expired and the time when this conflict arose. Therefore, the contract is void for the parties' failure to comply with the Competitive Bid Law. See § 41-16-50. Furthermore, because the problem with this contract does not involve the formalities of contract execution, the doctrine of estoppel is not available to Ballew. We affirm the judgment of the Court of Civil Appeals. AFFIRMED. HOOPER, C.J., and MADDOX, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] Maintenance did not distinguish Alred; that case was decided three years after Maintenance. However, we note that because it involved a contract that was void for failure to follow the formalities of execution, this Court had no reason in Alred to discuss Maintenance and, therefore, it did not.

April 14, 2000

5830f9a9-570b-4a12-b716-fba8d6906483

Ex Parte Pressley

770 So. 2d 143

1981061

Alabama

Alabama Supreme Court

770 So. 2d 143 (2000) Ex parte Marcus PRESSLEY. (Re Marcus Pressley v. State.) 1981061. Supreme Court of Alabama. January 28, 2000.[*] Modified on Denial of Rehearing April 7, 2000. *144 John C. Robbins, Birmingham; and Dennis Jacobs, Birmingham, for petitioner. Bill Pryor, atty. gen., and A. Vernon Barnett IV, asst. atty. gen., for respondent. COOK, Justice. In September 1997, in the Shelby Circuit Court, Marcus Pressley was convicted by a jury of the capital murder of John Burleson and Janice Littleton, murders committed during the course of a robbery. See § 13A-5-40(a)(2), Ala.Code 1975. He was sentenced to death. The Court of Criminal Appeals affirmed the conviction and sentence. See Pressley v. State, 770 So. 2d 115 (Ala.Crim.App.1999), for a detailed statement of the pertinent facts. We granted certiorari review pursuant to Rule 39(c), Ala.R.App.P. Pressley presents 25 issues for review; all of them were argued in the Court of Criminal Appeals and were thoroughly addressed by that court. We have carefully reviewed all the issues raised by Pressley. However, we will further address two issuesboth of which Pressley's counsel specifically addressed at oral argument: (1) Whether the trial court erred in denying Pressley's motions challenging the State's peremptory strikes against African-American and female veniremembers and (2) Whether international law prohibits the execution of offenders who committed their crimes before attaining the age of 18 years. Pressley contends that the State engaged in purposeful racial and gender discrimination by removing 4 of 6 African-Americans from the venire and in using 18 of its 23 peremptory strikes to remove females from the venire. He argued the State's action violated the principles of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and J.E.B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994). A trial court's ruling on a Batson objection is entitled to great deference, and we will not reverse the trial court's Batson ruling unless it is clearly erroneous. Ex parte Branch, 526 So. 2d 609 (Ala. 1987). In Batson, supra, the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits the prosecution from exercising its peremptory strikes to remove African-Americans from an African-American defendant's jury solely on the basis of their race. 476 U.S. at 93, 106 S. Ct. 1712. In Batson, the United States Supreme Court held: 476 U.S. at 89, 106 S. Ct. 1712 (citations omitted). The Court went on to outline the components of a defendant's prima facie case of racial discrimination: Batson, 476 U.S. at 96, 106 S. Ct. 1712 (citations omitted). In Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991), the Batson principles were extended to apply to civil cases. The Batson principles were further extended in Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992), when the United States Supreme Court held that they were also applicable to defense counsel in criminal trials. In White Consolidated Industries, Inc. v. American Liberty Insurance Co., 617 So. 2d 657 (Ala.1993), we extended the Batson principles to the striking of white veniremembers. In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994), the United States Supreme Court extended the Batson principles to prohibit gender-based strikes. In Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 25 L. Ed. 664 (1880), the Court held that racial discrimination in jury selection offends the Equal Protection Clause; however, it recognized that a defendant has no right to a jury composed in whole or in part of persons of his own race. A defendant making a Batson challenge bears the burden of proving a prima facie case of purposeful or intentional discrimination and, in the absence of such proof, the prosecution is not required to state its reasons for its peremptory challenges. Ex parte Branch, 526 So. 2d 609 (Ala.1987). Only when the defendant establishes facts and circumstances that raise an inference of discrimination must the State give its reasons for its peremptory strikes. Stokes v. State, 648 So. 2d 1179, 1180 (Ala.Crim.App.1994). The jury in Pressley's case consisted of nine women and three men, with one male alternate juror and one female alternate juror. There was one African-American on the jury and one African-American alternate juror. While the prosecution was exercising its peremptory strikes, the prosecutor pointed out that Pressley had used 7 of his 10 strikes to remove white males from the venire. Pressley replied by pointing out that the State had used 7 of its first 10 strikes to remove women. After the jury was struck, the State made a cross-Batson motion, arguing that Pressley had used 14 of his 22 strikes to remove white males from the jury, and in doing so, had unconstitutionally discriminated against white males. The State pointed out that only three males (25%) sat on the jury out of the 40% on the venire. Next, Pressley made a Batson motion, pointing out that the State had struck four African-Americans from the jury, with only one African-American actually sitting on the jury. Pressley made a second Batson motion, arguing that the State had used 18 of its 23 strikes to remove females from the jury. The trial court denied all motions, without finding that either party had made a prima facie showing of purposeful discrimination. This Court has held that where the trial court has made no express finding of a prima facie case of intentional discrimination but the prosecution nonetheless explains its peremptory challenges, we will infer that the court made such a finding and will proceed directly to evaluate the prosecutor's explanations. See Hart v. State, 612 So. 2d 520, 523-24 (Ala.Crim. App.1992); see Williams v. State, 548 So. 2d 501 (Ala.Crim.App.1988), cert. denied, 489 U.S. 1028, 109 S. Ct. 1159, 103 L. Ed. 2d 218 (1989); Currin v. State, 535 So. 2d 221 (Ala.Crim.App.), cert. denied, 535 So. 2d 225 (Ala.1988). However, in this case we do not find that the prosecutor explained the reasons for the State's peremptory *146 strikes; therefore, we will consider the question whether Pressley made a prima facie showing of purposeful discrimination. In Ex parte Branch, 526 So. 2d 609 (Ala. 1987), we stated that the following terms illustrate the kinds of evidence a party can use to raise an inference of racial or gender discrimination when seeking to establish a prima facie case: 526 So. 2d at 622-23. Pressley supported his Batson objections by arguing that the State's use of its peremptory strikes "in itself" establishes a pattern of discriminatory striking of jurors and constitutes a prima facie case of discrimination; this prima facie case, he argues, shifted the burden to the State to offer reasons for the strikes. However, we do not find that Pressley supplied the trial court with any additional information indicating that the State engaged in a "pattern" of discriminatory striking of jurors. The following colloquy occurred: (R. 1063-64.) After reviewing the record, particularly the record of the voir dire examination of the venire, this Court is not persuaded that the trial court's ruling on Pressley's Batson motions was clearly erroneous. Pressley offered no evidence indicating that the African-American veniremembers shared only the characteristic of race and that the female veniremembers shared only the characteristic of gender; that anything in the type or manner of the State's statements or questions during the extensive voir dire indicated an intent to discriminate against African-American or female jurors; that there was a lack of meaningful voir dire questioning directed at the African-American or female jurors; or that the African-American or female jurors were treated differently. Furthermore, Pressley has offered no evidence indicating that the prosecutor had a history of using peremptory challenges in a manner that discriminated against African-American or female veniremembers. Standing alone, given the factual circumstances of this case, the fact that the State struck four of six African-Americans from the venire and used some of its peremptory strikes to remove females from the venire is insufficient to establish a prima facie showing of race and gender discrimination. We do not find that the number of strikes the State used to remove African-Americans, or the number it used to remove females, from the venire is sufficient to establish a prima facie case of race, or gender, discrimination. See Ex parte Trawick, 698 So. 2d 162, 168 (Ala.1997). Pressley also contends that the State's response to his Batson motions constitutes an admission of gender discrimination by the State. Specifically, Pressley argues that the State admits that it struck females from the venire to ensure that white males would be represented on the jury. We disagree. After Pressley made his Batson motions, the State responded as follows: (R. 1061.) We do not interpret the State's response as an admission that it was violating Batson. It is clear from the State's crossBatson motion that the defendant, while making a Batson challenge, had at the same time used most of his peremptory challenges to remove white males. We grant great deference to the trial judge, who is on the scene and who can best judge the credibility of the participants and determine what actually occurred. Therefore, considering the record, we do not find that this statement amounts to an admission of discrimination by the State, nor do we believe that the defendant carried his burden of showing purposeful discrimination. Pressley argues in his reply brief to this Court that the execution of a juvenile violates customary international law and international treaties ratified by the United States.[1] Initially, we note that this *148 issue was not raised before the trial court. However, because this case involves the death penalty, this Court, under Rule 39(k), Ala.R.App.P., will apply the "plain error" doctrine. Therefore, this Court is not barred from reviewing issues that were not raised in the trial court. Pressley, who was 16 years old when he committed the capital offenses, contends that the imposition of the death sentence on him violates international law. See International Covenant on Civil and Political Rights (ICCPR), Dec. 19, 1966, 999 U.N.T.S. 175.[2] The United States Senate ratified the ICCPR, with five reservations, five understandings, four declarations, and one proviso ("RUDs"). Reservation I(2) states: 138 Cong. Rec. S4781-01, S4783-84 (daily ed. April 2, 1992) (emphasis added). Although the United States Senate ratified the ICCPR with a reservation that allows juvenile offenders to be sentenced to death, Pressley argues that this reservation is invalid because, he says, it is incompatible with the "object and purpose" of the treaty and is precluded by Article 4(2) of the ICCPR. See 138 Cong. Rec. S4781-01, S4783-84 (daily ed. April 2, 1992). Therefore, Pressley contends, his sentence of death is illegal. We are not persuaded that Pressley has established that the Senate's express reservation of this nation's right to impose a penalty of death on juvenile offenders, in ratifying the ICCPR, is illegal.[4] Laws of other states authorizing the death penalty for criminal offenders under the age of 18 have withstood Constitutional scrutiny. See Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989); Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988). In Stanford v. Kentucky, the United States Supreme Court rejected the argument that international law should influence *149 rulings under the federal Constitution pertaining to the death penalty. In Stanford, Justice Scalia stated in a plurality opinion joined by Chief Justice Rehnquist and Justices White and Kennedy, that the execution of a defendant who was "16 or 17 years of age" at the time of the commission of a capital offense "does not offend the Eighth Amendment's prohibition against cruel and unusual punishment." 492 U.S. at 380, 109 S. Ct. 2969. In a dissenting opinion, Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens and relying on amicus briefs filed by such groups as Amnesty International, stated that "[w]ithin the world community, the imposition of the death penalty for juvenile crimes appears to be overwhelmingly disapproved." 492 U.S. at 390, 109 S. Ct. 2969. In Stanford, Justice O'Connor wrote a concurring-in-part opinion explicitly distinguishing her views in Thompson v. Oklahoma, 487 U.S. 815, 857-58, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988), from her views in Stanford: Stanford, 492 U.S. at 380, 109 S. Ct. 2969 (citations omitted). Unlike the appellant in Thompson, who was 15 years old when he committed the capital offense, Pressley was 16 years old when he committed his capital offenses. Furthermore, Alabama's statutory scheme mandates that a person 16 years old charged with a capital offense be tried as an adult, and that scheme is similar to the statutory scheme that was in effect in Oklahoma when Thompson was decided. Because Pressley was 16 when he committed the capital offenses, we conclude that the death penalty was legally imposed upon him.[5] This Court has carefully reviewed the record and the briefs in this case, the opinion of the Court of Criminal Appeals, the oral argument made by Pressley's *150 counsel, and all of the other matters raised by Pressley. In compliance with Rule 39(k), Ala. R.App. P., we have searched the record of the guilt phase and the record of the sentencing phase of Pressley's trial for "plain error," i.e., error that is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings. See Ex parte Taylor, 666 So. 2d 73 (Ala.1995). We find no error, "plain" or otherwise, that requires us to reverse the Court of Criminal Appeals' judgment affirming Pressley's convictions and his sentence. That judgment is therefore affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, SEE, LYONS, and JOHNSTONE, JJ., concur. HOUSTON, J., concurs in the result. BROWN, J., recuses herself.[**] HOUSTON, Justice (concurring in the result). Article VI, paragraph 2, of the Constitution of the United States provides: The United States Supreme Court has interpreted this paragraph to mean what it says. Zschernig v. Miller, 389 U.S. 429, 440-41, 88 S. Ct. 664, 19 L. Ed. 2d 683 (1968); United States v. Pink, 315 U.S. 203, 230-31, 62 S. Ct. 552, 86 L. Ed. 796 (1942) ("state law must yield when it is inconsistent with or impairs the policy or provisions of a treaty"). On September 8, 1992, the United States ratified the International Covenant on Civil and Political Rights ("ICCPR"); Article 6(5) of this treaty provides: "Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women." Marcus Pressley was 16 years old when he committed the horrible crimes for which he has been sentenced to death. The majority opinion indicates that the Justices concurring therein are satisfied that the United States Senate Reservation 1(2) relieves state justices from their constitutional obligation to be bound by this treaty. The Senate Reservation begins with a clause reading: "The United States reserves the right...." This clause uses a singular verb. The following statement appears in Merriam Webster Dictionary of English Usage, p. 929 (1989): "[A]s the United States came to be thought of as a single entity, the singular verb came more and more into use." The Senate's reservation reads: Federalism is alive and well. The United States Constitution binds me as a Supreme Court Justice of the State of Alabama to abide by the ICCPR, Article 6(5), and not to impose the sentence of death on Pressley for the crimes committed when he was 16 years of age. I am not persuaded that the Senate's reservation, if not invalid for other reasons, frees me as a state justice, as opposed to a federal justice *151 or judge, from the treaty's restriction against the imposition of a sentence of death for a crime committed by a person below the age of 18 years. In Domingues v. Nevada, 114 Nev. 783, 961 P.2d 1279 (1998), in a 3-2 decision, the Supreme Court of Nevada rejected the defendant's contention that the ICCPR prohibited the imposition of the death sentence for crimes committed by a 16-year-old. The Supreme Court of the United States denied the defendant's petition for certiorari review on November 1, 1999. 528 U.S. 963, 120 S. Ct. 396, 145 L. Ed. 2d 309 (1999). I am aware that an order of the Supreme Court of the United States denying a petition for certiorari review is not to be taken as an expression of an opinion on the merits of the case. Maryland v. Baltimore Radio Show, 338 U.S. 912, 70 S. Ct. 252, 94 L. Ed. 562 (1950); Carpenter v. Gomez, 516 U.S. 981, 116 S. Ct. 488, 133 L. Ed. 2d 415 (1995); however, I am also aware that when a petition raises a substantial question, the Court sometimes "points out those concerns which, although unrelated to the merits, justify the decision not to grant review." Carpenter v. Gomez, 516 U.S. at 981, 116 S. Ct. 488. How much more substantial can a question be than whether a person can be executed for a crime committed in his youth, when the ICCPR, a treaty to which the United States is a signatory, makes such an execution facially illegal? However, the Court did not point out concerns justifying the decision not to grant review that were unrelated to the merits. Therefore, I do not believe it is a quantum leap for me to assume that certiorari review was denied based on the merits of the case. Before I voted in this case, knowing that the State of Alabama is going to be named in a list with such countries as Iran, Iraq, Bangladesh, Nigeria, and Pakistan, as jurisdictions approving death sentences for persons under age 18, I reread Clarence Darrow's summation in the Leopold and Loeb case. Attorney for the Damned: Clarence Darrow in His Own Words, pp. 16-88, (Simon and Schuster, Inc. 1957.) Like Darrow, I wonder if Attorney for the Damned, p. 82. Even though I am not persuaded that the Senate's resolution removes the ICCPR prohibition in State courts, I infer that the United States Supreme Court indicated that it did. I concur in the result, and I pray that in doing so I am not committing "an unforgivable act." [*] Note from the reporter of decisions: This opinion was released by the Supreme Court under the date January 28, 2000. The case was actually released to the public on January 27, 2000. [1] Article VI of the United States Constitution provides: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding." [2] The United States ratified the ICCPR in 1992. Article 6(5) states: "Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women." See also Convention on the Rights of the Child, Jan. 26, 1990, art. 37, 28 ILM 1448 (1989) (signed by the United States in 1996). [3] A treaty is self-executing and creates an individual right of action when it expressly or impliedly creates that right. However, the United States Senate declared that the ICCPR was not self-executing, stating that the declaration was to "clarify that the Covenant will not create a private cause of action in U.S. Courts." "International Covenant on Civil And Political Rights," S. Exec. Rept., No. 102-23, 102d Congress, 2d Session, 15 (1992). [4] Other international agreements cited by Pressley, such as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N.G.A. Res. 39/46 (United Nations General Resolution), and International Convention in the Elimination of all Forms of Racial Discrimination, 660 U.N.T.S. 195 (United Nations Resolution), were ratified by the United States Senate with RUDs that specifically stated that international law does not prohibit the imposition of the death sentence on juveniles. See 136 Cong. Rec. S 17, 491-92 (1990); Louis Henkin, ed. Comment, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 Am. J. Int'l L. 341 (1995). [5] In Ex parte Hart, supra, 612 So. 2d at 537, we affirmed the Court of Criminal Appeals' conclusion that the imposition of the death penalty on a defendant who 16 years old at the time of the crime is constitutional. See 612 So. 2d at 535. Additionally, United States Court of Appeals for the Fifth Circuit rejected the same argument in Celestine v. Butler, 823 F.2d 74 (5th Cir.), cert. denied, 483 U.S. 1036, 108 S. Ct. 6, 97 L. Ed. 2d 796 (1987): "How these issues are to be determined is settled under American constitutional law. Not a single argument is advanced directed at proving that the United States in these international agreements agreed to provide additional factors for decision or to modify the decisional factors required by the United States Constitution as interpreted by the Supreme Court. The argument is ingenious but content is wholly lacking." 823 F.2d at 79-80. [**] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

April 7, 2000

41cd98d2-f724-476f-b374-833bdd027438

Potts v. Hayes

771 So. 2d 462

1980694, 1980695

Alabama

Alabama Supreme Court

771 So. 2d 462 (2000) Jeffrey POTTS v. Marilyn HAYES. Vaughan Chilton Medical Center, Inc. v. Marilyn Hayes. 1980694 and 1980695. Supreme Court of Alabama. May 5, 2000. William R. Hill, Jr., and J. Haran Lowe, Jr., Clanton, for appellant Jeffrey Potts. Richard H. Gill and Albert D. Perkins IV of Copeland, Franco, Screws & Gill, P.A., Montgomery; and Ralph N. Hobbs and James B. McNeill, Jr., of Hobbs & Hain, P.C., Selma, for appellant Vaughan Chilton Medical Center, Inc. Joel S. Rogers III and Dale Rouse Waid of Rogers & Waid, Clanton, for appellee. PER CURIAM. These appeals are from a judgment rendered on a jury verdict for the plaintiff *463 Marilyn Hayes against the defendants Vaughan Chilton Medical Center, Inc., and Jeffrey Potts. Hayes sued Vaughan Chilton Medical Center and Jeffrey Potts, the hospital's administrator, alleging slander, libel, breach of contract, and the tort of outrage, based upon their submission of a letter to the Alabama Board of Nursing. The case was tried from August 3 to August 7, 1998. At the close of the plaintiff's evidence, the defendants moved for a judgment as a matter of law, pursuant to Rule 50, Ala. R. Civ. P., asserting that the plaintiff had not presented sufficient evidence to support her claims. The trial judge granted the motion as to Hayes's slander, libel, and breach-of-contract claims, finding that the statements contained in the letter were "substantially correct." However, he submitted the plaintiff's outrage claim to the jury. The jury returned a verdict against both defendants, awarding $150,000 in compensatory damages and $750,000 in punitive damages. The trial court entered a judgment on that verdict. The defendants filed timely posttrial motions, including a motion challenging the punitive-damages award as excessive, citing the factors set out in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), and its progeny. Because the trial judge did not rule on these motions, they were denied by operation of law. Rule 59.1, Ala. R. Civ. P. The defendants separately appealed. The evidence presented showed that in 1992 Marilyn Hayes, a registered nurse, was hired to work in the emergency room at Central Alabama Community Hospital in Clanton. Shortly after she was hired, Jeffrey Potts, the hospital administrator, promoted her to be director of the emergency room. In late 1992, Vaughan Chilton Medical Center, Inc., took over the management of the hospital. Vaughan Chilton soon said that it was necessary to make cuts in personnel throughout the hospital and in each department; thus, it required the employees to reapply for their jobs. Hayes reapplied and was again selected by Potts and by Elsie Yates Duke, the hospital's business controller, to be director of the emergency room. She remained in that position until the end of May 1995, when she informed Potts that she could no longer handle the job and requested reassignment to a different emergency-room position. She also requested a two-week vacation. Both requests were granted. Cheri Yeargan Bowden was appointed to replace Hayes as director of the emergency room. While on vacation, Hayes visited Vaughan Chilton's emergency room twice within a 24-hour period (on June 3 and 4, 1995), seeking treatment for a migraine headache. On the first of these visits, Hayes received an injection of Demerol and Phenergan. On the second visit, Hayes received an injection of Nubain and Vistaril. The doctor on duty was Dr. Kumjad Unnoppet (referred to in the record as "Dr. Kumjad"). No physical examination was performed on Hayes; she was simply given shots. Sometime after the second shot was ordered for Hayes, a nurse advised Dr. Kumjad that Hayes had been in earlier for a shot. When he learned of the first shot, he inquired of the attending nurse, who stated that Hayes came to the hospital "a lot" to get the shot for migraine headaches. When Dr. Kumjad learned that Hayes had been in the emergency room on a number of previous occasions, and that she frequently requested a shot to relieve migraine pain, he determined that Hayes might have a problem with drugs. He indicated on Hayes's chart that she should be admitted for "detox and psy[chiatric] consult." Cindy Brown, Vaughn Chilton's laboratory manager, testified that Potts "had told me that he had talked with the doctor after Hayes had come to the emergency room and asked him to write that on her chart." Dr. Kumjad testified that he did not have a conversation with Potts about what he wrote on the chart. He stated that he had tried to talk to Potts, but could *464 not get in touch with him, so, he said, he talked to Bowdenthe new director of the emergency room and Hayes's supervisor about the problem. After Dr. Kumjad reported his concerns, Potts and nursing director Linda Smith contacted the Alabama Nursing Board and inquired as to how to proceed. They were informed that the Board of Nursing guidelines impose a mandatory duty to report any such concerns. Alabama law provides immunity to any person "who in good faith reports information to the board" regarding potential drug abuse. § 34-21-25(i), Ala.Code 1975. Potts and Smith conducted an investigation of Hayes's job performance. They found records indicating that Hayes had checked out controlled substances without appropriate documentation. In addition, they discovered records reflecting that Hayes had received injections of controlled drugs without a physician's order. In light of their findings, Potts and Smith asked Hayes to meet with them. During the meeting, they told Hayes that they were concerned that she might have a problem and said they wanted to get help for her. At Hayes's request, Potts agreed to allow her to remain employed as a nurse, but without access to the keys to the narcotics locker. Potts provided Hayes with a written agreement to that effect, but she declined to sign it. Hayes contends in her brief that the agreement "severely restricted her authority and ability to perform her duties and ... was so unilateral in nature without basis as to be unacceptable." Because she refused to sign the agreement, she was not allowed to return to work. Hayes testified that she was embarrassed and humiliated by what she referred to as the "allegations" made against her; that she became reclusive and stayed at home, to avoid contact with people who would know the circumstances of her departure from the hospital; and that she ceased all involvement in social and church life. Duke, the hospital's business controller, testified that Potts made her aware that he had never wanted Marilyn Hayes in the position of emergency-room director and that he wanted Donna Turner to take that job. Duke testified that Potts was infatuated with Turner and that he had made sexual advances toward Turner. Potts filed a report with the Alabama Nursing Board, setting out the details of the hospital's internal investigation. Dr. Kumjad testified that in his opinion the report to the board should have been made. The Nursing Board received the information and initiated its own investigation. Based on that independent investigation, the Nursing Board brought formal charges against Hayes in May 1997. Hayes then sued Vaughan Chilton and Potts, alleging that "on or about June 15, 1995, and continuing thereafter, the Defendants intentionally or recklessly caused Plaintiff to suffer emotional and/or physical distress by accusing her publicly of being a drug addict, a thief, a danger to the public and of failing to perform her duties." The public accusation to which she was referring was the letter submitted by Potts, as hospital administrator, to the Alabama Board of Nursing. At the close of the plaintiff's case, the trial judge ruled that the evidence clearly demonstrated that the statements made in that report were "substantially correct" and, therefore, entered a judgment as a matter of law for the defendants on the libel, slander, and breach-of-contract counts. The Court allowed the outrage claim to go to the jury, upon the testimony of Cindy Brown. The defendants argue that the trial court erred in denying their motion for a judgment as a matter of law on the claim alleging the tort of outrage. The tort of outrage was first recognized by this Court in American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1981). In that case Inmon, who had formerly been *465 employed as a claims supervisor by American Road Service Company, sued his former employer, alleging that he had been mistreated during the events leading to his termination and that that mistreatment had constituted outrageous conduct; he argued that outrageous conduct should be recognized as a tort. In Inmon, this Court recognized such a tort. It discussed the requirements of the tort, emphasizing the extreme nature of the defendant's conduct that would be sufficient to constitute the tort, and the severity of the emotional distress that would entitle a person to recover for that tort: Id. at 365. The evidence indicated that American Road Service Company had investigated an alleged "kickback" scheme; that in the course of that investigation Inmon's honesty was questioned; and that he was harassed, investigated without cause, humiliated, accused of improper dealings, and ultimately terminated from his job, without justification. Inmon testified that as a result of that treatment he had suffered emotional distress, resulting in loss of weight and insomnia. The trial court entered a judgment for Inmon. After recognizing the tort and stating the nature of that tort, this Court held that the evidence Inmon submitted in support of his claim fell short of proving the tort of outrage. The judgment in his favor was reversed. The tort of outrage is an extremely limited cause of action. It is so limited that this Court has recognized it in regard to only three kinds of conduct: (1) wrongful conduct in the family-burial context, Whitt v. Hulsey, 519 So. 2d 901 (Ala.1987); (2) barbaric methods employed to coerce an insurance settlement, National Sec. Fire & Cas. Co. v. Bowen, 447 So. 2d 133 (Ala.1983); and (3) egregious sexual harassment, Busby v. Truswal Sys. Corp., 551 So. 2d 322 (Ala.1989). See also Michael L. Roberts and Gregory S. Cusimano, Alabama Tort Law, § 23.0 (2d ed.1996). In order to recover, a plaintiff must demonstrate that the defendant's conduct "(1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it." Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38, 44 (Ala.1990) (citing American Road Service Co. v. Inmon). Having carefully considered the evidence presented in this case, we conclude that the trial court erred in denying the defendants' motion for a judgment as a matter of law on the plaintiff's tort-of-outrage claim. That claim should not have gone to the jury. The evidence did not show the level of conduct our cases have recognized to be actionable as outrageous. The only evidence Hayes offered to show possible malice on the part of Jeffrey Potts was Duke's testimony stating that Potts had "never liked" Hayes. That evidence is, as a matter of law, insufficient to create a question for the jury. In Inmon, the plaintiff's evidence was far more persuasive than the evidence presented here, and that evidence was held to be insufficient to support a claim alleging the tort of outrage. See Nipper v. Variety Wholesalers, Inc., 638 So. 2d 778, 780 (Ala.1994). The judgment in favor of plaintiff Hayes is reversed, and a judgment is rendered in favor of the defendants. REVERSED AND JUDGMENT RENDERED. *466 HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.

May 5, 2000

090da5c2-dbab-4cb0-bba0-8e7670baf731

City of Birmingham v. Leberte

773 So. 2d 440

1981172

Alabama

Alabama Supreme Court

773 So. 2d 440 (2000) CITY OF BIRMINGHAM v. Christopher A. LEBERTE et al. 1981172. Supreme Court of Alabama. April 21, 2000. *441 Demetrius C. Newton, city atty., and Michael M. Fliegel, asst. city atty., City of Birmingham, for appellant. M. Clay Ragsdale and M. Stan Herring of Law Offices of M. Clay Ragsdale, Birmingham, for appellees. COOK, Justice. The City of Birmingham (the "City") appeals from a judgment entered on a jury verdict against it and in favor of the owners of seven parcels of residential property (collectively "the owners"). The judgment awarded damages for harm caused by floods the owners said were caused by *442 negligence on the part of the City. We affirm. The present action was commenced on December 13, 1996, against the City by 11 plaintiffs, namely, Christopher Leberte and Sandra Leberte; Larry Teston and Carrie Teston; Henry Sutherland and Ollie Sutherland; Albert Speed; Esther Hogeland and O.B. Hogeland; and Victor Coleman and Faye Coleman. The complaint contained the following pertinent allegations: (Emphasis added.) The complaint contained four counts, namely, (1) a count alleging negligence, (2) a count alleging nuisance and trespass, (3) a count seeking damages for inverse condemnation, and (4) a count seeking injunctive relief. The plaintiffs sought compensation for "diminution in the value of their real property, physical damage to their land and structures, mental anguish, embarrassment, and damage to ... personalty." On January 9, 1997, the plaintiffs amended their complaint to add as an additional plaintiff Joseph Hardmond, who "assert[ed] all claims as set forth in the original complaint." The City moved to dismiss the action on various grounds, including the ground that the claims of a number of the plaintiffs had already been adjudicated in Leberte v. City of Birmingham (Jefferson Circuit Court, CV-95-2946, April 26, 1995) ("Leberte I"). The trial court denied this motion. Subsequently, the City answered the complaint, raising a defense based on the statute of limitations. Still later, the City filed an amended answer, again asserting that the plaintiffs' claims were barred by "all applicable statutes of limitations." On July 14, 1998, the City moved for a summary judgment; in its motion, it renewed its argument that the claims of some of the plaintiffs, namely, those of the Lebertes, the Testons, and the Sutherlands, had been adjudicated in Leberte I. On September 17, 1998, the trial court granted in part the City's summary-judgment motion. In this connection, the trial court's order stated, in part: (Emphasis added.) The Lebertes, the Testons, and the Sutherlands moved for a "reconsideration" of the partial summary judgment. On October 21, 1998, the court granted their motion. It entered an order vacating the summary judgment in favor of the City, reasoning that "events that take place at separate times are not a single occurrence." During the trial of the cause, the City renewed its contentions (1) that the claims of all the plaintiffs were barred by the statute of limitations and (2) that the claims of the Lebertes, the Testons, and the Sutherlands were barred by their recovery in Leberte I. The trial court overruled the City's motions for a judgment as a matter of law and submitted the claims to the jury, with the following pertinent instructions: (Reporter's Transcript, at 687-88.) The jury returned a verdict in favor of all 12 plaintiffs. The trial court overruled the City's post-trial motion for a judgment as a matter of law or for a new trial. The City appealed, reiterating its statute-of-limitations and res judicata arguments. More specifically, it contends that all the plaintiffs' claims are barred by two statutes, namely, Ala.Code 1975, § 11-47-23 and § 11-93-2, either separately or in interaction. Those sections provide in pertinent part: Section 11-47-23: Section 11-93-2: (Emphasis added.) The City also contends that the jury's verdict in favor of two of the plaintiffs, namely, Esther and O.B. Hogeland, was not supported by the evidence. We first address the City's arguments based on the statutes. It is undisputed that all the plaintiffs in this case suffered flooding to their property that occurred more than six months before the plaintiffs commenced this action. The plaintiffs contend, however, that they also suffered flooding that occurred within that six-month period. No evidence in the record indicates that the plaintiffs gave the City notice of their claims other than through the filing of the complaint initiating this action and the complaint initiating the action in Leberte I, and the plaintiffs do not contend that they did. The plaintiffs concede that § 11-47-23 bars their recovery for instances of flooding that occurred more than six months before they commenced this action. Brief of Appellees, at 12. Indeed, the City requested, and received, the following jury instructions: No party contends that the jury failed to follow these instructions. The syllogism of the City's argument is as follows: (1) The multiple instances of flooding of which each plaintiff complains constituted but one "occurrence" within the meaning of § 11-93-2; (2) the multiple instances of flooding resulted from a single proximate cause, namely, the City's failure to "design, maintain, and construct adequate and reasonable stormwater drainage and flood control measures for the Community"; (3) the multiple instances of flooding arose out of a single cause of action; (4) each plaintiff's cause of action accrued on the date of the first instance of flooding; (5) § 11-47-23 required the plaintiffs to file a claim with the City within six months of the accrual; (6) no such claims were made; and, therefore, (7) all claims arising out of the City's failure to "design, maintain, and construct adequate and reasonable stormwater drainage and flood control measures for the Community" are forever barred.[1] The plaintiffs argue, however, that each instance of flooding represented a separate occurrence, or, at least, represented a separate, compensable injury giving rise to a new cause of action. The question, therefore, is whether, or under what circumstances, multiple instances of flooding may constitute separate compensable injuries so as to avoid the consequences of the City's syllogism? The dispositive rule has been often and aptly stated as follows: Harris v. Town of Tarrant City, 221 Ala. 558, 560, 130 So. 83, 84-85 (1930) (emphasis added). The application of these rules is illustrated in City of Clanton v. Johnson, 245 Ala. 470, 17 So. 2d 669 (1944). That case involved a bill in equity filed by Johnnie J. Johnson against the City of Clanton ("Clanton"). 245 Ala. at 472, 17 So. 2d at 671. The bill alleged that Clanton had polluted Walnut Creek, which ran through Johnson's property, by discharging raw sewage into the creek less than one mile above Johnson's property. Id. Johnson sought the abatement of the discharge and recovery for damage that had "accrued within six months of the institution of [the] suit." Id. at 473, 17 So. 2d at 672 (emphasis added). Clanton challenged the equity of the bill on the basis of the predecessor of § 11-47-23, that is, Ala.Code 1940, Tit. 37, § 476, which differed from its successor statute in no material respect. In essence, Clanton argued that it had constructed the sewage system of which Johnson complained, approximately four years before *446 Johnson filed a claim with the municipality; that it had been operating it at all relevant times since its construction; and, therefore, that the relief Johnson sought was barred by § 476. Id. at 473, 17 So. 2d at 671. This Court disagreed with Clanton's arguments. Quoting the portions of Harris set forth above, it explained the difference between a "permanent nuisance" and an "abatable nuisance." 245 Ala. at 473-74, 17 So. 2d at 672-73. It stated: "`The mere fact that the city sewers were of permanent construction did not render the nuisance occasioned by them permanent also, for the municipality had the right at any time to abate it.'" Id. at 474, 17 So. 2d at 669 (quoting Vogt v. Grinnell, 123 Iowa 332, 98 N.W. 782 (1904)). Further, it reasoned: "[I]t is not necessary that the nuisance be created within the period of limitation prescribed by the statute." Id. at 473, 17 So. 2d at 672 (emphasis added). "It is sufficient, if within that period damages accrue which are separable and recur not from the installation of the sewerage system, but from its method of maintenance or operation which [makes] it an abatable nuisance." Id. (emphasis added). Because "some of the items of damages were separable and accrued within the six-months period of limitation, as for instance injury from vile odors and damage to [Johnson's] milch cows," the Court thus concluded that Johnson was entitled to relief. Id. at 475, 17 So. 2d at 673. This present case was not tried on the theory of negligent construction of a storm-water system; if it had been, it would have involved the rule regarding a "permanent" nuisance, namely, the rule that damages must be awarded, not in successive actions, but in solido. Instead, it was submitted to the jury on the theory that the City had negligently operated or maintained the system it had constructed. More specifically, the plaintiffs' evidence tended to show that the City had undertaken to maintain a storm-water drainage system, consisting of ditches and pipes to direct water away from the houses of the neighborhood. The plaintiffs' theory of recovery was that "the City allowed the ditch lines to become clogged with vegetation and debris," Brief of Appellees, at 5, and that it "failed to properly maintain the ditch lines thereby aggravating and contributing to the significant flooding events." Id. at 4. The record contains ample evidence indicating that the City had systematically neglected or refused to remove obstructions from the ditches and pipes, and that the failure to remove them had contributed to the damage incurred by the plaintiffs within the six months preceding the commencement of this action. For example, the plaintiffs introduced the testimony of Dr. James Walters, an expert in the area of sanitary and environmental engineering. He testified as follows: (Reporter's Transcript, at 350-53.) (Emphasis added.) Moreover, the record contains testimony indicating that the City allowed vegetation to grow inside the ditches to a height of five feet and testimony indicating that the City had provided no observable maintenance upon the drainage ditches within two years preceeding the trial of the action. In the language of this Court's discussion in Johnson, the fact that the storm-water drainage system was itself "of permanent construction," did not render the lack of maintenance thereof "permanent also," for the City had the rightindeed, the dutyto "abate" the nuisance created by its failure or refusal to remove obstacles from the pipes and ditches. Moreover, the total damage incurred by the plaintiffs was made up of separable items of damage, each an item of damage to their property attributable to a specific instance of flooding that occurred within six months of the filing of this action. Thus, the claims, as they were tried in this case, were not barred by the syllogism argued by the City. In other words, the plaintiffs' claims presented in this case were not barred by § 11-93-2 or by § 11-47-23 or by a combination of these sections. In fact, the approach urged by the City would effectively absolve it of all responsibility for maintaining a storm-water system it had assumed the responsibility to provide and would shield a municipality from liability for abatable nuisances in virtual perpetuity. This was not the intent of the Legislature or of this Court. In that connection, the City relies extensively on Carson v. City of Prichard, 709 So. 2d 1199 (Ala.1998), and Williams v. Board of Water & Sewer Commissioners of the City of Prichard, 763 So. 2d 938 (Ala.1999), particularly as to the claims of the Lebertes, the Testons, and the Sutherlands, that had been prosecuted successfully against the City in Leberte I. The Carson and Williams cases represented successive appeals of the same action against the Water Works and Sewer Board of the City of Prichard ("the Board"). Despite a superficial similarity, those cases are not controlling authority for this case. In Carson, this Court affirmed an award of compensatory damages in favor of, among others, Delfrey Williams, Geraldine Manuel Jackson, and Daisy Lee Robinson. 709 So. 2d at 1201 n. 1; Williams, 763 So. 2d at 939. The awards were for property damage and mental anguish the plaintiffs had suffered from multiple instances of "the overflow of raw sewage into their yards and homes after periods of heavy rain." 709 So. 2d at 1202. Williams was a subsequent action by Williams, Jackson, and Robinson against the Board, in which they sought "additional damages for harm caused them by sewage overflows that occurred on dates after the jury returned its verdict in the original case but before the filing of the complaint [in Williams]." Williams, 763 So. 2d at 939 (emphasis added). This Court held that the subsequent action was barred by the doctrine of res judicata. It did so on the ground that all the instances of flooding of which the plaintiffs complained constituted but a "single occurrence" within the meaning of *448 § 11-93-2; one proximate cause; and, consequently, a single cause of action for purposes of res judicata. Those cases differ from this one in at least two important respects. First, neither Carson nor Williams involved § 11-47-23. Neither case, therefore, involved a statute-of-limitations issue. Second, and most significantly, the plaintiffs in Williams failed to present evidence indicating on the part of the Board a culpability that was different in any sense from the culpability involved in Carson. Indeed, the trial court in Carson refused the plaintiffs' request for an injunction requiring the Board to remedy the defects. It refused to do so on the ground that a consent judgment in another action against the Board was in effect. In that regard, this Court stated: 709 So. 2d at 1207 (emphasis added). In other words, in light of the fact that the trial court in Carson had specifically found that the Board was making a good-faith effort to remedy the sewage problems, the plaintiffs in Williams provided no factual basis to support further actions based on an abatable-nuisance theory. Because of these important distinctions, we disagree with the City's argument that Carson and Williams require a reversal of the judgment entered in this case. The City contends that the jury's verdict in favor of the Hogelands was not supported by the evidence. We disagree. The Hogelands live across the street from the Sutherlands. Specifically, Esther Hogeland testified as follows: (Reporter's Transcript, at 444-45.)(Emphasis added.) Henry Sutherland testified that the City had assumed the maintenance of a storm-water system of ditches and pipes on, or around, his property. He also testified that if the pipes did not exist, then the storm water would "go all over the road there and down around the front of my house." (Reporter's Transcript, at 191.) Ollie Sutherland testified that when the ditches in, or around, her house fill up with debris, the water overflows and goes upon the Hogelands' property. The jury could *449 infer that the flooding on the Hogelands' property results, at least in part, from the City's failure adequately to maintain the ditch system on the Sutherlands' property.[2] Thus, the jury's verdict in favor of the Hogelands is supported by the evidence. We have considered the City's other challenges to the jury's verdict, and we are unpersuaded by them. We conclude, therefore, that the trial court properly entered a judgment on that verdict. That judgment is, therefore, affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] It is well established that "the statute of limitations begins to run in favor of the party liable from the time the cause of action accrues, and the cause of action accrues as soon as the party in whose favor it arises is entitled to maintain an action thereon." Payne v. Alabama Cemetery Ass'n, 413 So. 2d 1067, 1072 (Ala.1982) (emphasis added) (citing Garrett v. Raytheon Co., 368 So. 2d 516, 518 (Ala. 1979)). This is so, "even if at that time the full amount of damage may not be apparent." Life Ins. Co. of Georgia v. Smith, 719 So. 2d 797, 802 (Ala.1998) (emphasis added). [2] In this connection, there was testimony indicating that the City owned an easement upon the Sutherlands' property for the maintenance of the storm-water system.

April 21, 2000

a4f8190d-03c2-4d95-8ec3-6e28be5d97a2

Ex Parte Fluor Contractors Intern.

772 So. 2d 1157

1990308

Alabama

Alabama Supreme Court

772 So. 2d 1157 (2000) Ex parte FLUOR CONTRACTORS INTERNATIONAL. (In re Fluor Contractors International v. Charles O. Hill.) 1990308. Supreme Court of Alabama. April 14, 2000. *1158 Kelly W. Otto of Clark & Scott, P.C., Birmingham, for petitioner. Daniel E. Boone, Florence, for respondent. HOUSTON, Justice. Charles O. Hill sued in the Colbert Circuit Court to recover benefits under the Alabama Workers' Compensation Act for injuries he had sustained in the course of his employment by Fluor Contractors International ("Fluor") at a job site in Gallatin, Tennessee. The trial court awarded Hill $13,578.60 in compensation and attorney fees of $2,036.79. Fluor appealed; the Court of Civil Appeals affirmed the judgment of the trial court, without an opinion, but with a written dissent by two judges. Fluor Contractors Int'l v. Hill, 772 So. 2d 1156 (Ala.Civ.App.1999). We granted Fluor's petition for certiorari review. We reverse and remand. At the time of his injury, Hill lived in Tennessee, and he was employed by Fluor, a South Carolina company, to work in Tennessee. His only connection to Alabama *1159 was his membership in a boilermakers' union headquartered in Muscle Shoals, Alabama. Fluor telephoned the boilermakers' union in Muscle Shoals in order to solicit employment from members of that union to work on a job that Fluor was conducting at a construction site in Gallatin, Tennessee. The union referred Hill, who then drove to Gallatin. There, before he began work, he signed a "Notification of Employment Status" and was required to take a drug test, but he began work before the results were determined. On February 28, 1995, Hill sustained knee injuries while working within the scope of his employment. Did the Colbert Circuit Court have subject-matter jurisdiction over Hill's claim? Hill argues that it had jurisdiction under § 25-5-35(d), Ala.Code 1975. That section allows an employee to recover workers' compensation benefits, under the Alabama statute, for injuries he sustained while working outside the State of Alabama, in four situations: Initially, we must determine where Hill's employment with Fluor was "principally localized." Section 25-5-35(b) provides: Hill appears to be arguing that because Fluor's corporate headquarters are not within the State of Tennessee, then his employment also cannot be "principally localized" in Tennessee. We disagree. In order to ascertain the meaning of a statute, we look to the plain meaning of the words written by the Legislature. Johnson v. Price, 743 So. 2d 436, 438 (Ala.1999). The words in § 25-5-35(b), given their plain meaning, do not require that, in order for a worker's employment to be "principally localized" within a particular state, the employer's headquarters or corporate office be in that state, but merely that the employee work for that employer at a designated place within that state. Therefore, it is clear, under § 25-5-35(b), that because all of the work Hill performed in his job with Fluor was performed at the job site in Gallatin, Tennessee, his employment was localized in Tennessee. Because Hill's employment was localized in Tennessee, the only subsection of § 25-5-35(d) that he could recover under would be subsection (3). Section 25-5-35(d)(3), to be applicable, requires that the workers' compensation law of the state in which the injury occurred not be applicable to the employer. Neither party has alleged that Tennessee workers' compensation law did not apply to Fluor. On the contrary, Hill argues in his brief that he would also be entitled to workers' compensation benefits under Tennessee law. Therefore, § 25-5-35(d)(3) would not provide subject-matter jurisdiction to the trial court in the present situation, and the action could not be brought under the Alabama Workers' Compensation Act, regardless of where the contract was made. Hill's second argument is based on the citations to § 6-5-430, Ala.Code 1975, and Rule 54(c), Ala. R. Civ. P., made in the Court of Civil Appeals' memorandum of affirmance. These citations appear to indicate *1160 that the majority of that court believed that if the trial court did not have jurisdiction under § 25-5-35(d), then it could have jurisdiction by acting to enforce Hill's rights under Tennessee workers' compensation law. Section 6-5-430 allows Alabama courts to hear a claim made under the law of another state. In their dissenting opinion, Judge Thompson and Judge Crawley disagreed and stated that § 6-5-430 is inapplicable to this case because "Hill has not made any claim for benefits under the workers' compensation law of any other state." Fluor, 772 So. 2d at 1157 (Thompson, J., dissenting). In other words, the dissent argued, because Hill made no claim under the law of any other state, the trial court could not possibly have had jurisdiction to grant relief under the law of another state. We agree. Additionally, because Hill made no claim under Tennessee law and the trial court therefore had no subject-matter jurisdiction in regard to Tennessee law, Rule 54(c) is also inapplicable. Furthermore, we note that Hill could not have made a valid claim under Tennessee workers' compensation law. It is undisputed that when Hill filed the present action in the Colbert Circuit Court, the applicable Tennessee statute of limitations would have barred any claims he might have made under Tennessee law. See Tenn.Code Ann. § 50-6-203; § 50-6-224. Therefore, Hill could have no valid claim under Tennessee law; the Colbert Circuit Court could have had no Tennessee claim to hear under § 6-5-430; and that court could not award damages for such a claim under Rule 54(c). Because the Colbert Circuit Court had no subject-matter jurisdiction to hear Hill's workers' compensation claim, the Court of Civil Appeals erred in affirming its judgment. We reverse and remand. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, COOK, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., concurs specially. JOHNSTONE, Justice (concurring specially). While I disagree that Fluor's mere job site in Tennessee constituted a "place of business" that would contribute to the localization of Hill's employment in Tennessee, I still concur because Hill's employment is localized under another alternative within the localization subsection, § 25-5-35(b), Ala.Code 1975, which reads in pertinent part:

April 14, 2000

46dd5eb5-039c-449b-b3e3-d78ef3d9d383

Ex Parte Williams

780 So. 2d 673

1980425

Alabama

Alabama Supreme Court

780 So. 2d 673 (2000) Ex parte Thijuan WILLIAMS. (Re Thijuan Williams v. State). 1980425. Supreme Court of Alabama. February 11, 2000. As Modified on Denial of Rehearing April 7, 2000. Paul M. Harden, Sr., of Harden & Harden, Monroeville, for petitioner. Bill Pryor, atty. gen., and Cedric B. Colvin, asst. atty. gen., for respondent. PER CURIAM. Thijuan Williams was convicted of robbery in the first degree and was sentenced to 10 years' imprisonment. The Court of Criminal Appeals, on October 2, 1998, affirmed, with an unpublished memorandum. Williams v. State, (No. CR-97-1165), 744 So. 2d 957 (Ala.Crim.App.1998) (table). We *674 have granted Williams's petition for certiorari review. Williams argues (1) that his confession was the result of an illegal arrest; (2) that his confession, which was offered against him at trial, was made involuntarily, as the result of coercion; and (3) that the State failed to prove that in the commission of the charged crime Williams had a deadly weapon or dangerous instrument. At trial, Eleanor Cooper testified that she entered the front of her store at approximately 7:15 a.m. on December 6, 1995, and was assaulted by a black man wearing a mask. Ms. Cooper said she began screaming and did not stop when the man told her to "shut up." She said the man then grabbed some canned "beans or peas from a shelf" and began hitting her with the can or cans. She said she saw a second man at the cash register and heard her attacker ask the second man if he "had it," and she said the men then left. Ms. Cooper received 20 stitches to close the wounds that she had suffered on her head and hands. After hearing that there was a warrant out for his arrest, Williams voluntarily surrendered to police and was formally arrested on December 14, 1995. However, the warrant for Williams's arrest was not obtained until December 15, 1995. Williams was not questioned about his involvement in the robbery until 24 hours after he had been arrested; when questioned, he confessed to the robbery. Williams contends that the trial court erred in admitting his confession, arguing that it was the result of an illegal arrest. He also claims that his confession was not voluntary, but, rather, was given in response to promises of leniency he says the sheriff made to him. Williams also argues that the trial court erred in denying his motion for a judgment of acquittal because, he says, the State failed to prove that at the time of the robbery he was armed with a deadly weapon or dangerous instrument. (One element of first-degree robbery is that the defendant was armed with a "deadly weapon or dangerous instrument." Ala.Code 1975, § 13A-8-41.) In its unpublished memorandum, the Court of Criminal Appeals stated that a can of vegetables, used as the robbery victim says the robber in this case used a can (or cans) of peas or beans, can constitute a "dangerous weapon," within the meaning of that term as it is used in § 13A-8-41. We agree. We think it unnecessary to further address Williams's argument that he was not armed with a "deadly weapon or dangerous instrument." Williams argues that his confession was the result of an illegal arrest. He asserts that he was arrested and held for 24 hours without probable cause. However, the record on appeal does not contain the affidavit supporting the warrant for Williams's arrest. Therefore, this Court does not know what information was contained in the affidavit and cannot determine whether that information was sufficient to establish probable cause for the arrest. Williams also argues that his confession was not voluntary. Williams made a pretrial motion to suppress the confession. He alleged that on December 14, 1995, the day he was arrested, Deputy Pickens visited him in his jail cell. Williams testified that Deputy Pickens told him, "[I]f I ever catch you at forty-three or whateverI forgot the name of the hospital he say he going to put me in the hospital." Williams further testified that after his conversation with Deputy Pickens, he had a conversation with the sheriff. Williams testified that the sheriff told him: *675 Williams says he confessed to the robbery after having those two conversations. The State argues that the trial court properly admitted Williams's confession because, the State argues, Williams made it voluntarily after being given Miranda warnings, and it argues that Williams's testimony to the contrary lacked credibility. The Court of Criminal Appeals agreed with the State's argument, stating in its unpublished memorandum: The statement in the unpublished memorandum amounts to a holding, in effect, that, even though the defendant testified without contradiction that his confession was the product of threats of violence by a deputy and promises of leniency by the sheriff, nonetheless, inconsistencies in his testimony on other topics diminished his credibility and thereby satisfied the burden on the State to prove the voluntary nature of the confession. The fact-finder owes a duty to reconcile the testimony so as to make the witnesses speak the truth, if the fact-finder can reasonably do so. City of West End v. Eaves, 152 Ala. 334, 44 So. 588 (1907). Thus, uncontradicted testimony of threats and promises, no matter how questionable the witness's credibility may be, would at least make a prima facie showing that the confession was involuntary, even if the burden of proof were on the defendant, as it is not. A fortiori, doubts about the defendant's credibility cannot satisfy the burden that is, by law, on the State to prove that the confession was voluntary. "For a confession, or an inculpatory statement, to be admissible, the State must prove by a preponderance of the evidence that it was voluntary." McLeod v. State, 718 So. 2d 727, 729 (Ala.1998). The only evidence the State presented to show that the confession was voluntary was Williams's signed waiver-of-rights form and the testimony of Deputy Cagle regarding Williams's signing the waiver-of-rights form. The State offered no evidence to dispute Williams's claim that his confession was the product of a threat by Deputy Pickens and a promise of leniency by the sheriff. Deputy Cagle's testimony simply stated that Deputy Cagle made no promises to Williams in order to secure the confession. However, Deputy Cagle was unable to provide testimony that disputes Williams's testimony regarding either the alleged threat or the alleged promise of leniency. United States v. Lee, 699 F.2d 466, 468 (9th Cir.1982) (citations omitted), as quoted, with approval, in Ex parte Callahan, 471 So. 2d 463, 467 (Ala.1985). In this present case, there had been no prior confession. However, Williams claims that he was threatened by a deputy sheriff and *676 was promised leniency by the sheriff if he would confess. Therefore, it was the State's burden to prove by a preponderance of the evidence that Williams voluntarily waived his rights and confessed. The State's production of the form indicating that Williams had waived his Miranda[1] rights is merely one step in the analysis. This Court must look at the totality of the circumstances. All this Court has before it is Williams's allegation that he was threatened and was promised leniency if he confessed. The State produced no evidence indicating that Deputy Pickens did not threaten Williams. Nor did the State produce any evidence indicating that the sheriff did not promise Williams that if he confessed he could "go on home" and that "won't too much happen" if he confessed. The State produced no evidence indicating that Williams waived his rights outside the context of the alleged threat of harm and the alleged promise of leniency. This rule is well settled in Alabama: Womack v. State, 281 Ala. 499, 507, 205 So. 2d 579, 587 (1967). Because the State did not carry its burden, the trial court's determination that Williams's confession was voluntary was contrary to the great weight of the evidence. See Ex parte Matthews, 601 So. 2d 52 (Ala.1992). Thus, his conviction is reversed, and this case is remanded for proceedings consistent with this opinion. REVERSED AND REMANDED. HOUSTON, COOK, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. MADDOX and SEE, JJ., dissent. BROWN, J., recuses herself.[*] MADDOX, Justice (dissenting). I respectfully dissent. The majority concludes that Williams's testimony was undisputed. I disagree. Deputy Cagle, the questioning officer, testified that Williams, before he confessed, said that he had not been coerced nor promised anything regarding his statement. I believe this was a very sharp contradiction that created a factual issue best resolved by the trial court when it was considering whether the confession should be admitted. On that point, I suggest that the law provides that the trier of fact is entitled to disregard a "witness's entire testimony" if the trier of fact "decides that [the] witness has been willfully untruthful on a material matter." Dill v. State, 723 So. 2d 787, 803 (Ala.Crim.App.1998). Williams testified on direct examination that he confessed to the sheriff after the sheriff had promised him leniency. On cross-examination, however, Williams admitted that he never confessed to the sheriff, but that he confessed to Cagle on the day after he says the sheriff had promised him leniency. Thus, the trial court could have concluded that Williams was being willfully untruthful about a "material matter" and could have disregarded Williams's entire testimony as *677 being unworthy of belief. Accordingly, the trial court did not err in permitting the State to introduce Williams's confession. SEE, J., concurs. [1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

April 7, 2000

1eb9eda8-6cd7-48a8-99f2-037e8320f1df

Ex Parte Thomas

766 So. 2d 975

1980262

Alabama

Alabama Supreme Court

766 So. 2d 975 (2000) Ex parte Kenneth Glenn THOMAS. (Re Kenneth Glenn Thomas v. State). 1980262. Supreme Court of Alabama. March 31, 2000. Jan P. Helder, Jr., Lana M. Knedlik, and Angelina M. Grimes of Sonnenschein Nath & Rosenthal, Kansas City, Missouri, for petitioner. Bill Pryor, atty. gen., and Beth Jackson Hughes, asst. atty. gen., for respondent. JOHNSTONE, Justice. The matter before us is our certiorari review of a decision by the Court of Criminal Appeals affirming a decision by the trial court denying the defendant-petitioner's Rule 32, Ala. R.Crim. P., petition challenging his conviction for capital murder under § 13A-5-40(a)(4), Ala.Code 1975, and his convictions for other simultaneous crimes. Before the petitioner filed the instant Rule 32 petition, he had already appealed his capital murder conviction itself; *976 and the Court of Criminal Appeals had already affirmed the conviction, Thomas v. State, 539 So. 2d 375 (Ala.Crim.App. 1988), this Court had already affirmed the judgment by the Court of Criminal Appeals, Ex parte Thomas, 539 So. 2d 399 (Ala.1988), and the United States Supreme Court had already denied the petitioner's petition for a writ of certiorari, Thomas v. Alabama, 491 U.S. 910, 109 S. Ct. 3201, 105 L. Ed. 2d 709 (1989). Because the instant review by us is discretionary, we will confine our discussion and holding to what we deem to be the petitioner's most arguable issue: that his trial counsel was ineffective for his failure to request a jury instruction on the lesser included offense of manslaughter (predicated on evidence of intoxication at the time of the acts) and his failure to object to the failure by the trial court to instruct the jury on the lesser included offense of manslaughter. We affirm because the failure of the trial court to submit the lesser included offense of manslaughter to the jury for its consideration did not prejudice the defendant. In Limestone County, the defendant was indicted, tried, and convicted for capital murder, first degree sexual abuse, first degree robbery, and first degree arson. He received a death sentence for the capital murder conviction and penitentiary sentences for the other convictions. These hideous crimes are detailed in Thomas v. State, supra, published by the Court of Criminal Appeals on the defendant's direct appeal. Only the indictment, trial, and conviction for capital murder are pertinent to our analysis now. The theory of the capital murder indictment is murder in the course of a burglary. The theory of the burglary alleged in the capital murder indictment is, in pertinent part, that the defendant burglarized the victim's dwelling with the "intent to commit the crime of theft therein." In the guilt phase of the trial, the trial court submitted for the jury to consider, not only the burglary-murder capital murder as alleged in the indictment but also the lesser included offenses of noncapital murder, first degree burglary, second degree burglary, attempted burglary in the first or second degree, first degree criminal trespass, and third degree criminal trespass.[1] The defendant's trial counsel did not request, and the trial court did not submit, the lesser included offense of manslaughter. Likewise, the defendant's trial counsel did not object to the failure of the trial court to submit the lesser included offense of manslaughter to the jury for its consideration. The defendant-petitioner now argues before us that the trial court committed prejudicial error by failing to instruct the jury on the lesser included offense of manslaughter and that the defendant-petitioner's trial counsel's failure to preserve this error for review constituted ineffective assistance of counsel, substantially prejudiced the defendant both at trial and on appeal, and thus entitles him to a new trial. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), does, indeed, predicate relief for ineffective assistance of counsel on proof of both substandard performance by the trial counsel and substantial prejudice resulting to the defendant from the substandard performance. We will discuss first the strengths of the defendant-petitioner's argument and then its weaknesses. The evidence that the defendant killed the victim is super-abundant. The defendant's chief defense was mental incompetence. At the hearing on the defendant's Rule 32 petition, trial defense counsel testified that the defense strategy was not to win an acquittal but to save the defendant's life. The evidence that the defendant was voluntarily intoxicated at the time he killed *977 the victim is also super-abundant. We need not detail it here. The evidence of the defendant's voluntary intoxication fills more than two entire letter-size pages of single-spaced type in a footnote in the manuscript of the very thorough opinion written for the Court of Criminal Appeals by Judge Patterson adversely deciding the petitioner's appeal from the trial judge's denial of the instant Rule 32 petition. (Note 26, 766 So. 2d at 951-52.) Thomas v. State, 766 So. 2d 860, 951-52 (Ala.Crim. App.1998). Moreover, Judge Patterson writes: Thomas, 766 So. 2d at 951-53 (footnotes omitted). The Crosslin case cited by Judge Patterson is compelling authority that the defendant-petitioner was entitled to an instruction on the lesser included offense of manslaughter. The Crosslin court explains and holds: Crosslin, 446 So. 2d at 681-82. In the case before us, the failure of the defendant-petitioner's trial counsel to preserve error for the failure of the trial court to instruct the jury on the lesser included offense of manslaughter relegated the defendant-petitioner to the plain-error rule, which increased the burden on the defendant-petitioner to prove prejudice. Ex parte Woodall, 730 So. 2d 652, 657 (Ala. 1998); Kuenzel v. State, 577 So. 2d 474, 489 (Ala.Crim.App.1990), aff'd, 577 So. 2d 531 (Ala.1991), aff'd, 502 U.S. 886, 112 S. Ct. 242, 116 L. Ed. 2d 197 (1991); and Ex parte Kennedy, 472 So. 2d 1106, 1111 (Ala.1985) (a failure to object at trial, while not precluding our review, will weigh against any claim of prejudice). Indeed, plain error review apparently availed the defendant-petitioner nothing on his direct appeal, for neither the Court of Criminal Appeals nor this Court even mentioned the issue of the failure of the trial court to instruct the jury on the lesser included offense of manslaughter in the respective opinions at that stage. Thomas v. State, supra, and Ex parte Thomas, supra. Trial defense counsel's failure to request an instruction submitting manslaughter and failure to preserve error in this regard cannot be considered a strategic decision. He requested and obtained an instruction on voluntary intoxication to the effect that voluntary intoxication could negate an element of specific intent. The logical sequel would have been an instruction on manslaughter as a lesser included offense. Such an instruction, predicated on voluntary intoxication, would have been entirely consistent with the defense of mental incompetence and the strategy of simply saving the defendant's life rather than seeking total exoneration. The issue of whether trial defense counsel's not preserving error and thereby relegating the defendant-petitioner to plain-error review prejudiced the defendant-petitioner depends on whether he would have obtained a reversal and a new trial (an obviously better result) if his trial defense counsel had preserved the error for review. For the reasons we will explain, we conclude that even a preserved-error review of this particular issue would not have availed the defendant-petitioner a reversal and therefore the failure by trial defense counsel to preserve the error did not prejudice the defendant-petitioner. In other words, the result would have been the same in either event because, under the particular facts and circumstances of this case, had trial defense counsel preserved the error, the appellate courts would have recognized the error but would not have found prejudice that required reversal. Conducting even a preserved-error review, an appellate court in Alabama will not reverse an error unless it has substantially prejudiced the party seeking the review. Ex parte Yelder, 575 So. 2d 137 (Ala. 1991); Espey v. State, 270 Ala. 669, 120 So. 2d 904 (1960); Rule 45, Ala. R.App. P. As we have explained, the trial court submitted to the jury not only the capital murder burglary-murder charged in the indictment but also the lesser included offense of noncapital murder as well as other lesser included offenses. The jury verdict that the defendant is guilty of the capital murder burglary-murder bespeaks that the jury was convinced beyond a reasonable doubt of the existence of each and every essential element of capital murder burglary-murder, including, particularly significantly, not only the essential element of intent to kill in the murder aspect of the capital murder charge but also the essential element of intent to commit theft, *980 which, in turn, included the essential element of intent to deprive the victim of the property to be stolen from her, in the burglary aspect of the capital murder charge. Section 13A-5-40(a)(4) (defining burglary-murder capital murder), § 137A-7-5 (defining burglary in the first degree), and § 13A-8-2 (defining theft of property), Ala.Code 1975. Intent to commit theft, entailing, as it does, intent to deprive the owner of her property, is a mental state more elaborate and complex and thus more subject to disruption or obliteration by voluntary intoxication than is the mental state of intent to kill. Had the jury in this case harbored a reasonable doubt to the effect that voluntary intoxication had disrupted or obliterated this defendant's ability to form or to harbor specific intent, the jury first would have applied this doubt to the comparatively elaborate and complex element of intent essential to the burglary aspect of the burglary-murder capital murder charge and accordingly would not have found the burglary and therefore would not have found the burglary-murder but, instead, would have found the defendant guilty of only the lesser included offense of noncapital murder. Even with the refuge of an option to convict for manslaughter, the jurors, who manifestly were convinced beyond a reasonable doubt that the defendant had formed and harbored the more elaborate and complex specific intent to commit a theft within this victim's dwelling, could not and would not have rationally and reasonably concluded that intoxication had disrupted or obliterated the formation or existence of intent to kill in the same brain at the same time and thus could not and would not have rationally and reasonably doubted that the defendant had formed and harbored the relatively simple intent to kill. Therefore, had the trial court submitted the lesser included offense of manslaughter to this jury for its consideration, the likelihood is nil that the jury would have chosen to convict the defendant of manslaughter rather than murder or capital murder. Finally, the absence of an instruction on the lesser included offense of manslaughter did not deprive the defendant of an opportunity for a compromise verdict. Had the jury been inclined to compromise, the jury would obviously have chosen the option they already had to convict the defendant of the lesser included offense of noncapital murder. Because the giving of a jury instruction on the lesser included offense of manslaughter would not have changed the verdict of the jury, the absence of such an instruction did not prejudice the defendant. Thus, even if defense trial counsel had preserved the error of the failure of the trial court to instruct the jury on the lesser included offense of manslaughter, the defendant would not have obtained a reversal on appeal. Accordingly, the failure of defense trial counsel to preserve the error did not prejudice the defendant, and the defendant has not met the prejudice prong of the test for ineffective assistance of counsel as required for relief under Strickland v. Washington, supra. For the reasons stated, the petitioner is not entitled to relief on the ground discussed. We decline to address the less arguable grounds contained in the petition for writ of certiorari and accompanying brief. Therefore the judgment of the Court of Criminal Appeals affirming the judgment of the trial court denying the Rule 32 petition is affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, and SEE, JJ., concur. LYONS, J., concurs in the result. BROWN, J., recuses herself.[*] [1] The trial court submitted also the alleged separate simultaneously committed offenses, but they do not affect this opinion. [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

March 31, 2000

ade7192c-cb3e-4e01-b497-3d69cfba7f5c

Laidlaw Transit, Inc. v. Alabama Educ. Ass'n

769 So. 2d 872

1982234, 1982235

Alabama

Alabama Supreme Court

769 So. 2d 872 (2000) LAIDLAW TRANSIT, INC. v. ALABAMA EDUCATION ASSOCIATION et al. Tuscaloosa City Board of Education and its Superintendent, Robert A. Winter v. Alabama Education Association et al. 1982234 and 1982235. Supreme Court of Alabama. April 21, 2000. *873 Carl Johnson and Whit Colvin of Bishop, Colvin, Johnson & Kent, Birmingham, for appellant Laidlaw Transit. J. Russell Gibson III and Jennifer B. Compton of Phelps, Jenkins, Gibson & Fowler, L.L.P., Tuscaloosa, for appellants Tuscaloosa City Board of Education and its Superintendent, Robert A. Winter. Joe R. Whatley and Maureen Kane Berg of Whatley Drake, L.L.C., Birmingham; and Robert Segall of Copeland, Franco, Screws & Gill, Montgomery (Gregory B. Stein of Stein & Brewster, Mobile; and Cecil Gardner of Gardner & Middlebrooks, Mobile, "of counsel"), for appellees. David R. Boyd and Beth Moscarelli of Balch & Bingham, L.L.P., Montgomery, for amicus curiae Alabama Association of School Boards. E.J. "Mac" McArthur, executive director, Montgomery, for amicus curiae Alabama State Employees Association. HOUSTON, Justice. The issue in this declaratory-judgment action is whether the defendant Tuscaloosa City Board of Education ("the Board") had the statutory authority to contract with the codefendant Laidlaw Transit, Inc. ("Laidlaw"), for the transportation of students within the Tuscaloosa City School System. The trial court ruled that the Board's contract with Laidlaw violated Ala.Code 1975, § 16-11-9.1, and the Public Education Budget Acts of 1995, 1996, 1997, and 1998 (Ala. Acts 1995, Act No. 95-748, § 5; Ala. Acts 1996, Act No. 96-770, § 8; Ala. Acts 1997, Act No. 97-856, § 9; Ala. Acts 1998, Act No. 98-504, § 17). Based on that ruling, the trial court entered a summary judgment for the plaintiffs, the Alabama Education Association; the Professional Educators of Tuscaloosa Association; Israel Prewitt; and Robert Willis.[1] After carefully examining the record and the briefs, including the briefs of the amici curiae Alabama Association of School Boards and Alabama State Employees Association, we conclude that the trial court's judgment is due to be affirmed, but not based on the arguments made by the plaintiffs or for the reasons stated by the trial court. We will affirm a trial court's judgment if we find any reason that makes the judgment proper. See Deaton, Inc. v. Monroe, 762 So. 2d 840 (Ala.2000); see also Smith v. Equifax Services, Inc., 537 So. 2d 463 (Ala.1988). The facts of this case are not in dispute. Laidlaw has been providing student-transportation services for over 70 years. It has been operating in Alabama since 1988, providing generalized and specialized transportation services to certain Alabama school systems.[2] Laidlaw operates approximately 24,000 school buses and provides medical-transportation services and public-transit services in 35 states, generating annual revenue of approximately $900 million. In an effort to provide cost-effective transportation services for its students, the Board, through its superintendent, the defendant Robert A. Winter, solicited and *874 received a comprehensive proposal from Laidlaw in March 1995. That proposal included a commitment by Laidlaw to assume responsibility for transporting the students within the Tuscaloosa City School System; to upgrade and fully maintain a modern bus fleet; to comply with all applicable safety and regulatory standards; and to meet applicable driver-certification, safety-training, and substance-abuse requirements. After the proposal had been reviewed by the Board's transportation and finance committees, and upon Superintendent Winter's recommendation, the Board accepted Laidlaw's proposal and entered into a multi-year contract for transportation services, in exchange for a set fee. Under the contract, all Board employees who would be affected by the contract were given the option of accepting employment with Laidlaw or remaining with the Board on the same terms and with the same benefits that existed before the execution of the contract. In addition, Laidlaw assumed direct control and supervision of all bus drivers and transportation-related support personnel. In this respect, the contract provided: In a document entitled "Coordination with Private Contractor's Policy," the Board set out its policy with respect to an independent contractor's supervision of Board employees: Tom Dodd, the Board's assistant superintendent for business operations and its former finance director, testified by affidavit as to the benefits the Board received under its contract with Laidlaw: Characterizing the Board's contract with Laidlaw as a "scheme" to reduce the number of its employees and to deny certain benefits to education support personnel, including bus drivers, the plaintiffs challenged the contract on several grounds, specifically: 1) that by contracting with Laidlaw the Board had exceeded its statutory authority to manage its school system; 2) that the contract violated § 16-11-9.1, which places certain restrictions on a city board of education's authority to take necessary and appropriate measures to properly manage its school system; and 3) that the contract violated the Public Education Budget Acts of 1995, 1996, 1997, and 1998. The trial court ruled that the Board's contract was illegal; its order reads in pertinent part as follows: Section 16-1-30(b) provides that a local school board "shall, upon the written recommendation of the chief executive officer, determine and establish a written educational policy for the board of education and its employees and shall prescribe rules and regulations for the conduct and management of the schools." Section 16-11-2(a), Ala.Code 1975, states that "[t]he general administration and supervision of the public schools and educational interest of *877 each city shall be vested in a city board of education." Section 16-11-9 provides: (Emphasis added.) Section 16-11-9.1 states: (Emphasis added.) These statutes confer broad power on a city board of education to take those steps it deems necessary to properly educate the children under its charge. The granting of such broad power to a city school board is consistent with, and indicative of, the Legislature's comprehensive approach to education in Alabamaan approach that focuses on the achievement of academic excellence. For example, in § 16-6A-3, part of Chapter 6A, the Education Reform Act of 1984, Ala.Code 1975, § 16-6A-1 to -6, the Legislature stated: Section 16-6A-4 provides: (Emphasis added.) In addition, in § 16-6B-1, part of the chapter entitled "Education Accountability Plan," the Legislature stated: "The Legislature finds that the people of Alabama desire two basic things from their public schools: (1) high achievement for students [and] (2) a safe and orderly environment in which to learn." Section 16-6B-4 provides in part: "In addition to providing quality instruction in classrooms, all local boards of education must be fiscally accountable"; and § 16-6B-5 states in part: "In addition to providing quality instruction in classrooms and fiscal soundness, all local boards of education shall be accountable for compliance with statutes and regulations regarding school safety and discipline." Based upon our examination of the record and the briefs, we conclude that the Board's motivation in contracting with Laidlaw for transportation services is not seriously questioned; the record indicates that the Board's decision was grounded in its desire to fulfill its statutory obligation to administer and supervise the city's school system, to the end that the children under its jurisdiction will receive the safest and most economical transportation in connection with school-related activities. The record, including Tom Dodd's affidavit, clearly indicates that the Board's decision to contract with Laidlaw was in the best interests of the children who attend public schools in the City of Tuscaloosa; and it is only for the supervision and education of those children that the school system exists. The sole issue presented for our consideration is whether the Board had the statutory authority to contract with Laidlaw. Given the broad grant of authority to a city school board in §§ 16-1-30, 16-11-2(a), 16-11-9, and 16-11-9.1, we must reverse the summary judgment for the plaintiffs unless the Board's authority to contract with an independent contractor for transportation services is restricted by other statutory provisions. The plaintiffs contend that the Board's authority to contract is derived solely from the Legislature and that the Legislature has not specifically authorized city school boards to contract with independent contractors for transportation services. According to the plaintiffs, in the absence of a statutory provision specifically authorizing city school boards to contract with private companies like Laidlaw, such boards have no authority to delegate transportation responsibilities to a private company. Laidlaw and the Board contend that §§ 16-1-30, 16-11-2(a), 16-11-9, and 16-11-9.1 confer authority on a city school board to enter into such contracts as the board deems necessary to promote the efficient management of its school system, unless such a contract denies a board employee a legal or constitutional right or an employment benefit to which he or she is legally entitled, or unless a board's right to contract is otherwise restricted by statute. We agree. As noted above, §§ 16-1-30, 16-11-2(a), 16-11-9, and 16-11-9.1 confer broad authority on a city school board to take any action it deems necessary and proper for the efficient administration and management of its school system. Unless the authority conferred by §§ 16-1-30, 16-11-2(a), 16-11-9, and 16-11-9.1 is restricted by the second proviso in § 16-11-9.1, or by another statute, that broad authority provides sufficient legal underpinning for the Board's contract. See also Hughes v. Hartford Accident & Indem. Co., 223 Ala. 59, 134 So. 461 (1931); Salter v. Board of Educ. of Jefferson County, 229 Ala. 631, 159 So. 78 (1935); Scott v. Mattingly, 236 Ala. 254, 182 So. 24 (1938); Shores v. Elmore County Bd. of Educ., 241 Ala. 464, 3 So. 2d 14 (1941); Hargett v. Franklin County Bd. of Educ., 374 So. 2d 1352 (Ala. *879 1979); Madden v. Alabama State Tenure Comm'n, 508 So. 2d 1178 (Ala.Civ.App. 1987), recognizing that local boards of education generally enjoy broad discretion in exercising legislative grants of authority to administer school systems.[3] The plaintiffs also contend that the broad authority granted to the Board in §§ 16-1-30, 16-11-2(a), 16-11-9, and 16-11-9.1 is restricted by the second proviso in § 16-11-9.1, which states that the Board's authority to manage its school system "shall not be used to deny any employee any legal or constitutional rights to which he or she is entitled, nor shall such authority be used in such a way that employees are denied any benefits established *880 and required by law...." The plaintiffs argue specifically 1) that the contract violated § 16-25-5, which requires the enrollment of full-time public-education employees in the Teachers' Retirement System of Alabama; 2) that the contract violated certain provisions in Article 4 of the Merit System Act, specifically §§ 36-26-100 through -108 (also known as the Fair Dismissal Act), which provide dismissal procedures for full-time employees of local school boards, including bus drivers, who are not otherwise covered by the state merit system, the teacher-tenure law, or other state statute; and 3) that the contract violated § 16-25A-1 et seq., providing for public-education employees' health insurance under the Public Education Employees' Health Insurance Plan. The plaintiffs take the position that the contract violated the second proviso in § 16-11-9.1 because it allowed the Board to obtain bus drivers through an independent contractor and thereby to deny those drivers (employees of Laidlaw) benefits and rights under §§ 16-25-5, 36-26-100 through -108, and 16-25A-1 et seq. Laidlaw and the Board contend that § 16-25-5, 36-26-100 through -108, and 16-25A-1 et seq. apply only to "employees" of the Board, not to Laidlaw's employees. They argue that the Board's employees retained all of their statutory benefits and rights and, therefore, that no Board employee was denied any legal or constitutional right or benefit, in violation of § 16-11-9.1, as the result of the Board's contract with Laidlaw. We agree with Laidlaw and the Board that §§ 16-25-5, 36-26-100 through -108, and 16-25A-1 et seq. do not apply to Laidlaw's employees. Section 16-25-5(b) requires that "[a]ll janitors, maids, cafeteria workers and any other full-time employees in public education" be enrolled in the Teachers' Retirement System. Section 16-25-1(4) defines "support personnel or employee" as "[a]ny maid, custodian, adult bus driver, lunchroom, or cafeteria worker, secretary, clerk, clerical assistant, maintenance worker, or other non-certificated employee who works an average of 20 hours weekly." Section 16-25-1(5) defines an "employer" as "[t]he State of Alabama, the county school board, the city school board, the State Board of Education, or any governing body of any private nondenominational school operated nonprofit for education of children of school age residing within a district where no public school is available for the children or any other agency of and within the state by which a teacher is paid." As these definitions clearly indicate, § 16-25-5 does not apply to the employees of an independent contractor hired by the city school board. Sections 36-26-100 through -108 provide dismissal procedures for certain full-time employees of local school boards, including adult bus drivers who work 20 or more hours each week during the school term. Section 36-26-100 defines "employees" to include, among others, "all persons employed by ... city boards of education." Sections 36-26-100 through -108 do not apply to the employees of an independent contractor hired by the city school board. Section 16-25A-1 et seq. provide for health insurance for public-education employees. Section 16-25A-1(1) defines "employee" in part as "[a]ny person who is employed ... in any public institution of education within the State of Alabama." Section 16-25A-1(2) defines "retired employee" in part as "[a]ny person receiving a monthly benefit from the Teachers' Retirement System, who at the time of his retirement was employed by a public institution of education within the State of Alabama." These sections clearly indicate that § 16-25A-1 et seq. do not apply to the employees of an independent contractor. Because §§ 16-25-5, 36-26-100 through -108, and 16-25A-1 et seq. do not apply to Laidlaw's employees, the Board, by contracting with Laidlaw, did not violate the second proviso in § 16-11-9.1 by denying one of its "employees" a legal or *881 constitutional right or benefits to which he or she was entitled by law. The plaintiffs further contend that the Board's contract violated the Public Education Budget Acts of 1995, 1996, 1997, and 1998. All four of those acts provided that no funds allocated to the public schools could be used for the payment of any "salaries of personnel not under the direct control, employment, and supervision of local boards of education." The 1997 and 1998 Acts also included a proviso stating that the restriction on the use of funds for the public schools did not apply "to the construction, renovation, or major repair of buildings or other capital improvements which are beyond the capacity of regular employees to perform." Pointing to the proviso that the Legislature added to the 1997 and 1998 budget acts, the plaintiffs argue that the Legislature intended to prevent education funds from being paid to an independent contractor whose entire remuneration would come from its contract with a local school board. According to the plaintiffs, the 1997 and 1998 provisos were added to allow a local school board to contract with a construction company for a major construction or renovation project, when that contract might constitute the construction company's sole source of income by which it could pay its employees' salaries. The plaintiffs state in their brief: Laidlaw and the Board contend that there is no evidence to support the trial court's statement in its order "that by arranging to pay the entire salaries of ... bus drivers through [a] contract[] with [an] independent contractor[], the local [school board has] violated these provisions." They argue further that if the plaintiffs' interpretation of legislative intent is correct, then: (Emphasis in original.) After examining the record, we conclude that the Board's contract with Laidlaw, insofar as it called for the payment of a set fee for transportation services, did not violate the budget acts. In DeKalb County *882 LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270, 275-76 (Ala.1998), this Court stated: "Blue Cross & Blue Shield v. Nielsen, 714 So. 2d 293, 296 (Ala.1998) (quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala.1992)); see also Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n, 589 So. 2d 687, 689 (Ala.1991); Coastal States Gas Transmission Co. v. Alabama Pub. Serv. Comm'n, 524 So. 2d 357, 360 (Ala. 1988); Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So. 2d 1219, 1223 (Ala.1984); Dumas Bros. Mfg. Co. v. Southern Guar. Ins. Co., 431 So. 2d 534, 536 (Ala.1983); Town of Loxley v. Rosinton Water, Sewer, & Fire Protection Auth., Inc., 376 So. 2d 705, 708 (Ala.1979). It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers. See Ex parte T.B., 698 So. 2d 127, 130 (Ala.1997)." The plain wording of the budget acts prohibits a local school board from paying the salaries of personnel under the direct control, employment, and supervision of another. The record does not indicate that the Board's contract with Laidlaw requires the Board to pay the salaries of Laidlaw's employees. The contract does require the Board to pay a set fee for certain transportation services provided by Laidlaw to the Board, and it can be assumed, we think, that Laidlaw pays its employees' salaries from revenue generated by its various transportation contracts, including its contract with the Board. We agree with Laidlaw and the Board that the plain meaning of the language used in the budget acts cannot be ignored, especially when to do so by accepting the interpretation suggested by the plaintiffs would lead to a facially absurd resultthe inability of a local school board to contract with any independent contractor for goods or services because some portion of the contract payments to that independent contractor presumably would be used to pay the independent contractor's expenses, including the salaries of the contractor's employees. The Legislature could not have intended such a result. At this juncture, we note the plaintiffs' reliance on § 5 of the Guaranteed Energy Cost Savings Act (Act No. 98-663, Ala. Acts 1998), which became effective on May 6, 1998, as indicating legislative intent. That section, codified at § 41-16-144, Ala. Code 1975, provides: (Emphasis added.) That language is different from that used in the budget acts at issue. The budget acts prohibit a local school board from paying the salaries of personnel under the direct control, employment, and supervision of another. The section quoted above purports to reaffirm *883 "present law," but then characterizes that law as requiring all education support personnel to work under the "direct supervision, employment, and/or control" of local school boards. The Legislature knows how to change the law when it is inclined to do so. The proscription in the budget acts on the payment of salaries of personnel under the control, employment, and supervision of another is clear. We do not view the language of the Guaranteed Energy Cost Savings Act as constituting an amendment of the budget acts. To the contrary, it appears to be an incorrect characterization of "present law." Likewise, we note the plaintiffs' reliance on Joint Resolution 99-94, which was approved by the Governor on April 22, 1999. That resolution reads in pertinent part: A resolution such as this one is not a law; it is merely the form in which the Legislature expresses an opinion. The Legislature has no power to make or change law by resolution. Art. IV, § 61, Ala. Constitution ("No law shall be passed except by bill...."); Gunter v. Beasley, 414 So. 2d 41 (Ala.1982). Whatever the Legislature may have intended by Resolution 99-94 is irrelevant to our resolution of the issues presented on this appeal. The controlling law here is that expressed in the applicable budget acts. See Opinion of the Justices No. 275, 396 So. 2d 81 (Ala. 1981); Opinion of the Justices No. 265, 381 So. 2d 183 (Ala.1980) (a statute cannot be amended by a joint resolution of the Legislature). Based on the above, we conclude that the Board's contract did not violate the applicable budget acts by requiring the Board to pay a fee for Laidlaw's services. We also conclude that the contract did not violate § 16-11-9.1 by allowing Laidlaw employees to provide transportation services to the Board even though they are not allowed to participate in the Teachers' Retirement System, to receive health-insurance benefits under the Public Education Employees' Health Insurance Plan, or to be subject to the due-process procedures of the Fair Dismissal Act. However, our examination of this case has revealed a critical problem that none of the parties has sufficiently addressed. The budget acts clearly state that a local school board shall not pay the salaries of personnel not under its "direct control, employment, and supervision." From our examination of the record, we conclude that there appears to be no question that a number of the Board's employees, whose salaries are being paid by the Board, are under the direct *884 control and daily supervision of Laidlaw. The Board has no statutory authority to pay its own employees from funds allocated by the Legislature as long as they are under the direct control and supervision of Laidlaw. Consequently, the Board's contract did violate the budget acts insofar as it placed the Board's own employees under the direct control and supervision of Laid-law. The Board's inability to pay its employees from legislatively allocated funds, in turn, causes the contract to violate the second proviso in § 16-11-9.1, which prohibited the Board from exercising its authority to contract if to do so would deny its employees legal rights or benefits. We can think of no more important right or benefit belonging to a Board employee than to be paid for services rendered to the Board under his or her employment contract. Likewise, the inability of the Board to pay its employees would constitute a de facto termination of their employment without following the procedures of the Fair Dismissal Act. For this reason, we must affirm the trial court's judgment.[4] HOOPER, C.J., and MADDOX, SEE, LYONS, and BROWN, JJ., concur ENGLAND, J., concurs in the result. JOHNSTONE, J., concurs in the result and in the rationale in part. JOHNSTONE, Justice (concurring in the result and in the rationale in part). I concur in the holding that the Laidlaw contract is illegal because it illegally authorizes Laidlaw to exercise direct supervision and control over certain local school board employees. I express no opinion on the other aspects of the rationale of the main opinion. [1] The Alabama Education Association represents employees of school systems throughout the state; its membership includes school-bus drivers and other transportation-related support personnel. The Professional Educators of Tuscaloosa Association also has members who are school-bus drivers in the Tuscaloosa City School System. Prewitt and Willis are school-bus drivers and are members of both associations. [2] The record indicates that as of the date of its contract with the Board, Laidlaw was providing transportation services for the Florence and Huntsville City School Systems and was providing transportation services for special-needs students in the Birmingham City School System. [3] We note that Chapter 27 ("Transportation of Pupils") of Title 16 ("Education") contains several provisions that strongly indicate the Legislature has sanctioned private transportation contracts with local school boards. Section 16-27-1 provides: "The State Board of Education shall prescribe rules and regulations: "(1) Requiring all local boards of education which provide transportation services for pupils going to and from public elementary and secondary schools of Alabama or in school-related activities, and the presidents of all state community, junior and technical colleges and directors of all state technical institutes and trade schools which provide transportation services for pupils going to and from said technical institutes and trade schools or community, junior and technical colleges to employ a competent supervisor or manager of such transportation services, whether such transportation services are provided in publicly owned or privately owned buses; "(2) Requiring periodic safety inspection of all vehicles used for transporting pupils, whether such vehicles are publicly or privately owned; "(3) Requiring and providing for special training and licensing of drivers of all vehicles used to transport pupils to and from school and in all school-related activities, whether such vehicles are publicly owned and operated or operated under contract with a private owner." (Emphasis added.) Section 16-27-5 states: "All local boards of education, all presidents of state community, junior and technical colleges and all directors of state technical institutes and trade schools which provide transportation services for pupils or students going to and from public elementary and secondary schools, community, junior and technical colleges or technical institutes and trade schools, and in school or college related activities shall have safety inspections made of all vehicles used for such transportation at least once each month, whether such vehicles are publicly owned and operated or privately owned and operated under contract between the board of education, board of trustees or other governing body of a community, junior and technical college and the owner of [the] vehicle." (Emphasis added.) Section 16-27-6(c) provides: "Every contract between a board of education and a school bus contract operator shall contain a clause requiring the driver of a school bus to wear a properly fastened seat belt when the bus is being used for the transporting of pupils on a public street or highway or elsewhere. Failure of any driver to comply with this requirement shall constitute a breach of contract on the part of the contract operator." (Emphasis added.) Also, in establishing the jurisdictional reach of the Public Service Commission, the Legislature exempted from the Alabama Motor Carrier Act "[s]chool buses or other motor vehicles which are owned by county boards of education or under contract with county boards of education, regardless of whether or not the school buses and other motor vehicles are being used exclusively for the transportation of school children and school teachers to and from school and provided the school buses and other motor vehicles do not take on passengers for fare on a certificated route." See § 37-3-4(a)(1)a. (Emphasis added.) See also Chapter XXX-XXX-XXX.12(18) of the Rules of the Alabama State Department of Education ("Transportation for Students with Disabilities"), Alabama Administrative Code, which states in part: "(a) Special transportation, if required by the individualized education program, must be provided for students with disabilities. "(b) Special transportation includes travel to and from school and between schools, travel in and around school buildings, modified vehicles, additional personnel assigned to vehicles to ensure safety of the students with disabilities, or purchased services involving parents or companies who use or subcontract fleet vehicles. ". . . . "(f) One copy of each special transportation contract must be on file with the education agency and the state Department of Education, Division of Administrative and Financial Services." [4] We do not address the question whether the Board has the authority under the "good and just causes" provision of § 36-26-102 to terminate the employment of bus drivers and other transportation-related support personnel employed by the Board, or the question whether such action on the Board's part would violate the second proviso in § 16-11-9.1. We note, however, that in Ellenburg v. Hartselle City Board of Education, 349 So. 2d 605, 609-10 (Ala.Civ.App.1977), the Court of Civil Appeals quoted, with approval, 68 Am. Jur.2d Schools § 183 (1973): "`"[G]ood cause" in a statute of this kind [Tenure Act] is by no means limited to some form of inefficiency or misconduct on the part of the teacher dismissed, but includes any ground put forward by a school committee in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the committee's task of building up and maintaining an efficient school system. Limited only by the statutory provision that they must be good and just causes, the jurisdiction and discretion to determine what these causes may be rests in the hands of the school authorities.'" This Court quoted that same statement with approval in Ex parte Alabama State Tenure Commission, 555 So. 2d 1071, 1074 (Ala. 1989).

April 21, 2000

04eae5bd-617b-478d-98f5-0af17f505cba

Ex Parte Callahan

767 So. 2d 405

1981722

Alabama

Alabama Supreme Court

767 So. 2d 405 (2000) Ex parte James Harvey CALLAHAN. (In re James Harvey Callahan v. State). 1981722. Supreme Court of Alabama. March 31, 2000. Randall S. Susskind of Equal Justice Initiative of Alabama, Montgomery, for petitioner. Bill Pryor, atty. gen., and J. Clayton Crenshaw, asst. atty. gen., for respondent. Prior report: Ala.Cr.App., 767 So. 2d 380. LYONS, Justice. WRIT DENIED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., dissents. JOHNSTONE, Justice (dissenting). I dissent from the denial of certiorari review. I think it is due on two issues. The first is the correctness vel non of the holding by the Court of Criminal Appeals, 767 So. 2d at 402, that the defendant-petitioner's claim of juror misconduct, predicated on a juror's failure to answer a voir dire question, is precluded from Rule 32, Ala. R.Crim. P., review because it should have been, but was not, raised on direct appeal. Nothing preceding the direct appeal would have alerted the defendant or his counsel that the juror was withholding information sought by the voir dire question as distinguished from remaining silent because the question did not apply or the answer was negative. Silence is the customary way jurors "swear" that the question does not apply to them or that the answer is no. The implication of the Court of Criminal Appeals that the defendant and counsel must divine and successfully investigate all possible instances of nondisclosure in time to preserve them for direct appeal is untenable. The constitutional right to a fair jury does not depend on such an impossible condition. The second issue we should examine is the correctness vel non of the holding by the Court of Criminal Appeals, 767 So. 2d at 403, that the trial court properly disallowed an affidavit by a juror to the effect that the jury had misbehaved by obtaining and considering information that, at the defendant's prior trial, he had been convicted and sentenced to death. The defendant-petitioner represents that he depended on this affidavit only because the sheriff failed to serve the juror with a subpoena properly requested by the defendant, who was entitled to compulsory process.

March 31, 2000

c565f239-92a2-48b5-b98c-40102fb42581

Ex Parte Grand Manor, Inc.

778 So. 2d 173

1980348

Alabama

Alabama Supreme Court

778 So. 2d 173 (2000) Ex parte GRAND MANOR, INC. (Re Grand Manor, Inc. v. Vicky H. Dykes and Benny J. Dykes). 1980348. Supreme Court of Alabama. March 31, 2000. *175 John R. Bradwell of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for petitioner. J. Tutt Barrett of Dean & Barrett, Opelika; Susan G. Copeland of Law Office of J. Doyle Fuller, Montgomery, for respondents. SEE, Justice. Vicky Dykes and Benny Dykes, wife and husband, sued Grand Manor, Inc., seeking, among other things, compensatory damages for an alleged decrease in the value of their new mobile home, which had been manufactured by Grand Manor, and for mental anguish they claimed to have suffered when they experienced problems with the mobile home. Following a trial, the jury returned a general verdict awarding the Dykeses $12,500 in damages against Grand Manor. The trial court entered a judgment on that verdict. Grand Manor appealed. The Court of Civil Appeals affirmed. Grand Manor, Inc. v. Dykes, 778 So. 2d 167 (Ala.Civ.App.1998). We granted certiorari review to consider whether the trial court erred in denying Grand Manor's motion for a judgment as a matter of law ("JML"formerly the motion for a directed verdict and the motion for a JNOV) and submitting the Dykeses' claims to the jury. We conclude that the trial court erred by submitting the Dykeses' claim alleging "negligent manufacture" to the jury; therefore, we reverse and remand. In September 1995, the Dykeses visited Better Cents Home Builders, Inc. ("Better Cents"), a mobile-home retailer, looking for a mobile home to buy. Better Cents ordered a mobile home for the Dykeses from Grand Manor, a mobile-home manufacturer. The order form bore the Dykeses' names, and the mobile home was to be manufactured according to the Dykeses' specifications. The cost of the mobile home, including the items that the Dykeses specifically requested, was $48,500. In October 1995, Grand Manor delivered the mobile home to Better Cents, and, in November 1995, Better Cents installed the mobile home on the Dykeses' lot. Grand Manor provided a written one-year warranty with the mobile home. *176 Shortly after they moved in, the Dykeses noticed a number of problems, namely, discoloration of the kitchen cabinets; dimming of the lights when they used the electrical outlets in the master bedroom, bathroom, and living room; backing up and overflowing of the toilets, which caused the carpet to get wet; and a drop in cold-water pressure in the showers whenever the toilet was flushed, a problem that on one occasion caused the Dykeses' son to be scalded. The Dykeses notified Better Cents of these problems and gave Better Cents a list of the problems they were having with the mobile home. The list included those just mentioned here and also problems regarding damaged and flawed cabinets and molding, uneven tile, doors that would not close, loose Formica on the kitchen countertop, and a large crack in a bedroom wall. On December 22, 1995, Better Cents contacted the Dykeses and informed them that they must on that day close the loan they were securing for financing the purchase of their mobile home or else move out. The Dykeses informed Better Cents that they were unwilling to close until the problems with the mobile home were fixed. Better Cents told them that if they would agree to close, then, at the closing, Better Cents would execute a written agreement to make the repairs. For the closing, the Dykeses met Robert Banks, who was an officer of Better Cents Home Builders, Inc., and the manager of its retail establishment. During the closing, the Dykeses prepared, on a Grand Manor "Repair Service Order," a list of the problems with the mobile home they wanted corrected. The list was attached to and made a part of a written agreement between the Dykeses and Banks acting on behalf of Better Cents. Under the terms of the agreement, Better Cents agreed that it would, by January 17, 1996, underpin and properly set up the mobile home and correct the problems on the list. Before the agreement was executed, Banks telephoned J.T. Hogan, the service manager of Grand Manor, and read to Hogan the Dykeses' list of problems. Mrs. Dykes testified at trial that Banks told her and her husband that Grand Manor had agreed that by January 17, 1996, it would correct all of the problems on the list. The Dykeses did not talk directly to Hogan. Based on the agreement and on Banks's representation, the Dykeses closed the loan transaction to finance the purchase of the mobile home. On January 3, 1996, a Grand Manor employee, Mike Mathis, went to the Dykeses' mobile home and made some repairs, but he did not have the materials he needed to complete all of the repairs. Mathis returned on January 9 and did some additional work. Mrs. Dykes, however, refused to sign the work order, because it stated that the work was "complete." According to Mrs. Dykes's testimony, the major problems with the cabinets, plumbing, and electricity had not been repaired. She telephoned Hogan at Grand Manor, and he told her that Grand Manor would make no further repairs. On February 6, 1996, Mrs. Dykes faxed a message to Banks asking about the repair of the problems with the cabinets, the plumbing, and the electricity. On February 15, 1996, Mrs. Dykes telephoned Better Cents and spoke with Banks. Banks informed her that Better Cents would not perform any repairs because, he said, the problems were not its responsibility, and informed her that Grand Manor was also refusing to make any further repairs. In November 1997, the Dykeses sued Grand Manor and Better Cents. They asserted only three tort claims: negligent manufacture, against Grand Manor; negligent delivery and installation, against Better Cents; and promissory fraud, against both Grand Manor and Better Cents.[1] Grand Manor and Better Cents moved for JMLs at the close of the Dykeses' evidence; *177 the court denied the motion. They renewed that motion at the close of all the evidence. The trial court denied that renewed motion also and submitted the case to the jury. The jury returned a general verdict for $12,500 against Grand Manor and for $12,500 against Better Cents. Grand Manor again moved for a JML. The trial court denied that motion. Grand Manor appealed to the Court of Civil Appeals, which affirmed. Grand Manor appealed, but Better Cents did not. Grand Manor argues that the trial court erred in denying its motion for a JML on the negligent-manufacture claim, the promissory-fraud claim, and the negligent-delivery and negligent-installation claim. In American National Fire Insurance Co. v. Hughes, 624 So. 2d 1362 (Ala. 1993), this Court stated the standard that applies to appellate review of a trial court's ruling on a motion for a JML: Id. at 1366-67 (citations omitted). In a case where several claims are submitted to the jury, over JML motions by the defendant, and the jury renders a general verdict as to those claims, on appeal this Court must determine whether the plaintiff presented substantial evidence in support of each of the claims. See Palm Harbor Homes, Inc. v. Crawford, 689 So. 2d 3, 8 (Ala.1997). This Court will not presume that the general verdict was returned on a "good count" (i.e., on a count or claim supported by substantial evidence); rather, "[i]f a verdict should have been directed as to one or more of the claims, then the judgment based on those claims must be reversed." Id. However, where the defendant does not challenge the "bad counts" (i.e., those not supported by substantial evidence) with specificity in his motions for JML, this Court will presume that the verdict was returned on the "good count." See Goodyear Tire & Rubber Co. v. Washington, 719 So. 2d 774, 778 (Ala.1998); Aspinwall v. Gowens, 405 So. 2d 134, 138 (Ala.1981).[2] Grand Manor argues that the trial court erred in denying its motion for a JML on the negligent-manufacture claim, because, it argues, Grand Manor had no contractual relationship with the Dykeses and the only injury was to the mobile home itself. Grand Manor, relying on Sterchi Bros. Stores, Inc. v. Castleberry, 236 Ala. 349, 182 So. 474 (1938), asserts that, as a general rule of Alabama law, a manufacturer is not liable, for negligent manufacturer of a product, to third persons who have no contractual relationship with the manufacturer. In Sterchi Bros. Stores, this Court did state that "the general rule is that a contractor, vendor, or manufacturer is not liable to third parties, who have no contractual relation with him, for negligence in the construction, manufacture, or sale of the articles he handles." 182 So. at 476, 236 Ala. at 351.[3] However, it is well established under more recent precedent that an ultimate consumer can recover in negligence against a manufacturer even in the absence of privity of contract: Harris v. Board of Water & Sewer Comm'rs of the City of Mobile, 294 Ala. 606, 613, 320 So. 2d 624 (1975); see also Vick v. H.S.I. Management, Inc., 507 So. 2d 433, 436 (Ala.1987); Berkel & Co. Contractors v. Providence Hosp., 454 So. 2d 496, 501-02 (Ala.1984); Nelson v. Meadows, 684 So. 2d 145, 149 (Ala.Civ.App. 1996), cert. quashed, 684 So. 2d 145 (Ala. Civ.App.1996). Thus, the fact that there was not a direct contract between the Dykeses and Grand Manor does not in itself preclude the Dykeses from recovering from Grand Manor for negligent manufacture of the mobile home. Grand Manor contracted with Better Cents to manufacture a mobile home for the Dykeses according to their specifications. Therefore, because it was foreseeable that the Dykeses would be injured if Grand Manor negligently performed its contractual obligations, Grand Manor owed a duty to the Dykeses to manufacture the home with reasonable care. Grand Manor also argues that the Dykeses cannot recover against Grand Manor for negligent manufacture because, it says, the only "injury" was to the mobile home itself. Grand Manor is correct in stating the rule of Alabama law that one cannot recover in tort for negligent manufacture of a product where the only injury is to the product itself.[4] See Dairyland Ins. Co. v. General Motors Corp., 549 So. 2d 44, 46 (Ala.1989) (holding that a summary judgment in favor of the manufacturer *179 and the dealer was proper as to a van buyer's negligent-manufacture claims because under Alabama law "one cannot recover in tort for damage to the product itself"). Grand Manor asserts that the Dykeses made no allegation and offered no evidence indicating that they suffered any injury to themselves or to their property (other than the mobile home) and that the Dykeses alleged only injury to the mobile home itself. We agree. "In negligence actions, Alabama follows the `zone-of-danger' test, which limits recovery of mental anguish damages to `those plaintiffs who sustain a physical injury as a result of a defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct.'" Wal-Mart Stores, Inc. v. Bowers, 752 So. 2d 1201, 1203 (Ala.1999) (quoting AALAR, Ltd., Inc. v. Francis, 716 So. 2d 1141, 1147 (Ala.1998), and citing White Consol. Indus., Inc. v. Wilkerson, 737 So. 2d 447, 449 (Ala.1999).) The evidence, when viewed in a light most favorable to the Dykeses, does tend to show that they were potentially at risk of suffering physical injury as the result of Grand Manor's alleged negligent manufacture of the mobile home, specifically because of the problems with the water pressure and the interior electrical wiring. However, whether the Dykeses were potentially at risk of physical injury is not dispositive of the question regarding their ability to recover mental-anguish damages. We must also determine whether the Dykeses presented substantial evidence indicating that they, in fact, suffered mental anguish as a result of Grand Manor's alleged negligent conduct. As this Court stated in AALAR, in order for a plaintiff to recover for emotional distress, he must show not only that "it was reasonably foreseeable to [the defendant] that [the plaintiff] would be placed at risk of physical injury" but also that "he, in fact, suffered emotional distress." 716 So. 2d at 1147. Thus, we cannot simply assume that the Dykeses suffered mental anguish. Mrs. Dykes testified at trial that their son had been scalded as a result of the water-pressure problem and that the carpeting of the mobile home had become "soaked" as a result of the toilet overflows. Because the Dykeses' son was not a party and because the Dykeses made no claim on his behalf for any alleged injury, this evidence does not support the Dykeses' negligent-manufacture claim.[5] Similarly, the Dykeses presented no substantial evidence indicating that any property other than the mobile home itself was damaged as a result of the toilet overflows; thus, this evidence does not support their negligent-manufacture claim. Mrs. Dykes testified[6] at trial that she had been told by two "certified people" that the interior electrical wiring in her home was "very dangerous," and she testified that because of the possibility of having a fire caused by an electrical problem, she had "worried a lot about [her] children being safe when [she was] not home." Mrs. Dykes also testified that she had "lost many nights' sleep from wondering why [she] was treated the way [she] was by both of the companies [Grand Manor and Better Cents]," specifically, that she "was told that neither one of them would fix the problems" with the mobile home and that she "spent a lot of time ... worrying if [she and her husband] made the right decision in buying the home." While Mrs. Dykes's testimony, when reviewed in a light most favorable to her, tends to show that she was anxious for her *180 children's safety and that she worried a great deal, her testimony does not constitute substantial evidence indicating that, as a result of the alleged negligent manufacture of the mobile home, she "fear[ed] for [her] own physical safety." AALAR, 716 So. 2d at 1148. At most, the evidence presented by the Dykeses in support of their negligent-manufacture claim shows injury to the mobile home itself, and Alabama law does not permit recovery of mental-anguish damages based on a claim of simple negligence where the negligent act or omission results in mere injury to property.[7] See Bowers, 752 So. 2d at 1204 *181 (holding that the trial court erred in allowing the jury to award mental-anguish damages to the plaintiff homeowners based on their negligence claim, where fire destroyed the house but they suffered no physical injury and were not in the zone of danger). Accordingly, although the Dykeses presented substantial evidence indicating that Grand Manor owed them a duty to manufacture the mobile home with reasonable care, they failed to present substantial evidence indicating that they suffered injury or loss to their property other than that to the mobile home itself. Therefore, because under Alabama law one cannot recover for the tort of negligent manufacture where the only damage is to the product itself, but instead must assert a claim for contract damages, the trial court erred in submitting the Dykeses' claim of negligent manufacture to the jury. Grand Manor argues that the trial court erred in denying its motion for a JML on the negligent-delivery-and-installation claim because the Dykeses' complaint asserted this claim only against Better Cents, and not against Grand Manor. The Court of Civil Appeals did not address this argument because, it said, "[t]he Dykeses' complaint asserted this claim only as to Better Cents, not against Grand Manor." 778 So. 2d at 169 n. 1. We agree. The record shows that the Dykeses did not plead this claim against Grand Manor, but only against Better Cents; that the trial court did not submit this claim, against Grand Manor, to the jury; and that the trial court did not instruct the jury that it could find against Grand Manor on the negligent-delivery-and-installation claim.[8] To prove a claim of promissory fraud, the plaintiff must show (1) that the defendant made a misrepresentation, in the form of a promise, (2) that the representation concerned a material existing fact, (3) that the plaintiff relied on it, (4) that the reliance proximately caused injury or damage to the plaintiff, and (5) that when the defendant made the promise he intended not to do the act or acts promised, but intended to deceive the plaintiff. See Goodyear Tire & Rubber Co. v. Washington, 719 So. 2d 774, 776 (Ala.1998). Grand Manor argues that the trial court erred in denying its motion for a JML on the promissory-fraud claim, arguing (1) that Grand Manor did not make the representation that all of the problems with the Dykeses' mobile home would be repaired by January 17, 1996, but, rather, that that representation was made to the Dykeses by Better Cents employee Robert Banks; (2) that Grand Manor did not represent to the Dykeses that it would repair all the problems with the mobile home, but only those problems that were its responsibility; (3) that the Dykeses failed to present sufficient evidence showing that they relied on Grand Manor's alleged representation; and (4) that the Dykeses failed to *182 prove that Grand Manor intended to deceive the Dykeses and not to perform. In Henson v. Celtic Life Insurance Co., 621 So. 2d 1268, 1272 (Ala.1993), this Court held that it is not necessarily a requirement of a fraud claim that there be a direct communication between the one who makes the representation and the one to whom the representation is made. If the fraudulent statement is made with the intent and expectation that the one to whom it is made will pass the statement on to the plaintiff, then the plaintiff is entitled to rely on that statement, even if it is not made personally or directly to the plaintiff. See id. It is undisputed that Grand Manor made no direct representation to the Dykeses at the closing. However, Mrs. Dykes testified at trial that while she and her husband were at the closing, and in their presence, Banks spoke by telephone with Grand Manor employee J.T. Hogan and that Banks told the Dykeses that Grand Manor had agreed to repair all the problems on the list and to do so by January 17, 1996. Although Banks's testimony was at times conflicting, he also testified at trial that Hogan had told him that Grand Manor would correct, by January 17, 1996, all the problems on the list. Viewing the evidence in a light most favorable to the Dykeses, the jury could reasonably infer that the statement made by Hogan to Banks during their telephone conversation, while Banks was in the Dykeses' presence, was made with the intent and expectation that Banks would pass it along to the Dykeses and, thus, could find that Grand Manor promised to repair all the items on the Dykeses' list. Grand Manor argues that the Dykeses did not rely on the representation by Grand Manor because, it says, even after Banks told the Dykeses that Grand Manor had agreed to repair all the items on the list, the Dykeses still refused to sign the closing documents unless Better Cents executed a written agreement promising to repair those items. Thus, Grand Manor contends, the Dykeses relied on their agreement with Better Cents, and not on Grand Manor's representation. However, Mrs. Dykes testified at trial that, based on Banks's relayed representation that Grand Manor would correct all the problems on the list and would do so by January 17, 1996, she closed the transaction. Viewing the evidence in a light most favorable to the Dykeses, the jury could reasonably infer that the Dykeses closed the sale in reliance on Grand Manor's oral representation, as relayed by Banks. Finally, Grand Manor argues that the Dykeses failed to present sufficient evidence to support a finding that Grand Manor intended to deceive the Dykeses. In Washington, supra, this Court stated the plaintiffs burden in proving fraudulent intent: 719 So. 2d at 776 (citations omitted) (alteration in Washington). While the mere failure to perform the promised act is not by itself sufficient evidence of fraudulent intent, for purposes of a promissory-fraud claim, "the factfinder may consider that failure, together with other circumstances, in determining whether, at the time the promise was made, the promisor intended to deceive." Murphy v. Droke, 668 So. 2d 513, 516 (Ala.1995) (citing First Bank of Boaz v. Fielder, 590 So. 2d 893 (Ala.1991)). A plaintiff may meet the burden of proving fraudulent intent through circumstantial evidence, but "the circumstances shown by the evidence of record must be such that the jury, as reasonable persons, may fairly *183 and reasonably infer the ultimate fact sought to be proved." Ex parte Lumpkin, 702 So. 2d 462, 466 (Ala.1997) (quotation marks and citations omitted). The Court of Civil Appeals concluded that this case "is not a situation where Grand Manor `merely failed' to make repairs." 778 So. 2d at 172. We agree. Although no direct evidence indicated that Grand Manor, when it made the alleged representation, did not intend to make all the repairs, the circumstantial evidence was sufficient for the jury to reasonably infer that fact. Banks testified that during the closing he read the Dykeses' list of problems to Hogan over the telephone and that he also faxed the same list to him. Banks further testified that while he was reading Hogan the list of problems, Hogan did not object to making any repairs and did not state that Grand Manor would not repair certain of the problems. Banks also testified that Grand Manor told him after the closing that it would not repair several of the problems on the Dykeses' list because those problems, it said, were not its responsibility. The Dykeses presented testimony indicating that they would not close the purchase of the mobile home unless all of the problems they had listed were corrected and that Grand Manor, through Banks, told them that all the problems on the list would be corrected by January 17, 1996. Although a service representative from Grand Manor, Mike Mathis, twice went to the Dykeses' mobile homeon January 3 and on January 9, 1996and made some of the listed repairs, the Dykeses also presented testimony indicating that Grand Manor did not repair all of the problems and that, on the second service visit, Hogan told Mrs. Dykes, in a telephone conversation, that Grand Manor would not correct several of the listed problems. Viewing this evidence in a light most favorable to the Dykeses, the jury could reasonably infer that when Grand Manor represented that it would correct all the problems on the Dykeses' list, with knowledge of what those problems were, it did not intend to perform all of the promised repairs, but intended, instead, to repair only those problems that it considered to be its responsibility. Therefore, the trial court properly submitted the Dykeses' promissory-fraud claim to the jury. In its oral motions for directed verdict (JML) made at the close of the Dykeses' evidence and at the close of all the evidence, and again in its written motion for a JML, filed after trial, Grand Manor challenged all three of the Dykeses' countsnegligent manufacture, negligent delivery and installation, and promissory fraudwith specificity. Accordingly, we cannot presume that the verdict was returned on the only good countpromissory fraudand, therefore, we must reverse the judgment of as to Grand Manor and remand the case for the Court of Civil Appeals to order further proceedings not inconsistent with this opinion. See Ex parte Baker, 709 So. 2d 7, 10 (Ala.1997); South Cent. Bell Tel. Co. v. Branum, 568 So. 2d 795, 799 (Ala.1990). REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, BROWN, and ENGLAND, JJ., concur. COOK and JOHNSTONE, JJ., concur in part and dissent in part. LYONS, J., dissents. COOK, Justice (concurring in part and dissenting in part). I concur in Part II.B. and Part II.C. of the majority opinion, relating to the negligent-delivery and negligent-installation claim and the promissory-fraud claim, respectively. As to Part II.A., however, and the corresponding portion of Part III., I respectfully dissent. The majority effectively reverses a judgment entered on a jury verdict in favor of Vicky Dykes and Benny Dykes, the owners *184 of a mobile home, against Grand Manor, Inc., the manufacturer. It does so on the basis of the rule set forth in Aspinwall v. Gowens, 405 So. 2d 134 (Ala.1981). In other words, the majority concludes that the claim of "negligent manufacture of a mobile home" was a "bad count," because, it reasons, under that claim the plaintiffs produced no evidence of compensable damage. The majority's assertion is correct in that the Dykeses presented no evidence of physical injury to persons or property attributable to Grand Manor's negligence, and because Alabama law does not allow recovery in tort for damage to the product itself. However, Alabama law does allow for the "recovery for mental or emotional harm (such as fright or anxiety) that is caused by the negligence of another and that is not directly brought about by a physical injury." AALAR, Ltd. v. Francis, 716 So. 2d 1141, 1145 (Ala.1998). The issue, therefore, is whether the Dykeses presented evidence of mental anguish on which to base an award of damages. I would hold that they did. The theory applicable to this claim, under the recent cases of this Court, is the "zone-of-danger" test. Under that test, recovery for mental anguish is limited "`to "those plaintiffs who sustain a physical injury as a result of a defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct."'" See the majority opinion, 778 So. 2d at 179 (quoting Wal-Mart Stores, Inc. v. Bowers, 752 So. 2d 1201 (Ala.1999)). Remarkably, the majority concedesin effect that this standard is met, but refuses to apply the standard. In particular, it acknowledges that the plaintiffs' son was scalded in the shower as a result of the alleged defects in the plumbing. The Dykeses presented ample testimony indicating that whenever someone flushed the commode while another person was in the shower, the cold water from the shower was diverted to the commode, the diversion causing an excess of hot water in the shower. The potential of being scalded by hot water is a danger the entire family faces when showering. Furthermore, Vicky Dykes testified that she noticed that whenever she plugged a hair dryer into an outlet located in the master bedroom, the bath, or the living room, the lights would dim and that two experts had informed her that the interior wiring created a dangerous situation. She also testified that she worried about the electricity because she has small children and that she also worried that the electrical problems would cause fires. The majority emphasizes the fact that the plaintiffs' son is not a plaintiff and that the plaintiffs are seeking no damages on his behalf. The truth, however, is that the plaintiffs also shower in their home and that, whenever they do, they must be in constant apprehension that someone will flush the commode and scald them. It is clear that the Dykeses are in imminent, physical danger every time they are in the shower. They also live in a home with faulty electrical wiring, wiring that, at any time, may cause a fire. In other words, theyas residents in the mobile homeare within the "zone of danger" created by the alleged negligence of the manufacturer. Furthermore, "[t]he plaintiff is only required to present some evidence of mental anguish, and once the plaintiff has done so, the question of damages for mental anguish is for the jury." Alabama Power Co. v. Harmon, 483 So. 2d 386, 389 (Ala.1986). Thus, the negligent-manufacture count does not fail for absence of a compensable injury and the jury verdict is supportable. As to those portions of the opinion involving this issue, therefore, I respectfully dissent. JOHNSTONE, Justice (concurring in part and dissenting in part). I concur with the main opinion in its holding on the negligent delivery and installation claim. I agree that that claim was not submitted to the jury against the petitioner-defendant, and therefore the petitioner-defendant is not entitled to a reversal *185 as a result of any frailty in that claim. Likewise, I concur in the holding of the main opinion on the promissory fraud claim. I agree that the plaintiffs produced substantial evidence on all of the essential elements of this tort. I dissent, however, from the holding that the petitioner-defendant is not liable under the negligent manufacture claim. The distinguishing fact which preserves the validity of the plaintiffs' verdict and judgment is that the manufactured product is an entire home as distinguished from an isolated component of a home. The mere-economic-loss rule of Carrell v. Masonite Corp., 775 So. 2d 121 (Ala.2000), as it applies to homes, bars recovery only for a particular component of a home which fails in such a way as to damage only the component itself. The mere economic loss rule does not apply when the product is the entire home. Moreover, the rule that damages for mental anguish are not recoverable for negligence which causes only loss to property but no physical injury or danger of physical injury to any person does not apply to negligence committed upon a home. A person who suffers both property damage and mental anguish as a result of negligence committed upon a home may recover for both elements of damage notwithstanding the absence of any physical injury to the person. Carson v. City of Prichard, 709 So. 2d 1199 (Ala.1998), and City of Mobile v. Jackson, 474 So. 2d 644 (Ala.1985). The plaintiffs before us presented substantial, direct evidence that one of them, the wife, suffered mental anguish regarding the defects caused by the petitioner-defendant's negligent manufacture of the home. Because the only two counts considered by the jury were "good," the verdict is valid. Thus we should not reverse the judgment of the trial court. LYONS, Justice (dissenting). I dissent because I believe the plaintiffs produced sufficient evidence of physical discomfort to justify the jury's award. However, I am unable to adopt the views of the dissenting opinions of Justice Cook and Justice Johnstone. I am unable to join Justice Cook's dissenting opinion because it is premised on the Dykeses' being in the zone of danger of scalding because a scalding incident happened when their son was in the shower and someone flushed the toilet. While it is reasonable to assume that such an event could happen to the Dykeses as well as to their son, the Dykeses presented no testimony as to any anxiety they suffered over a risk of a similar injury. Thus they cannot support the jury verdict on this theory of mental anguish. I am unable to join Justice Johnstone's dissenting opinion, because it relies on Carson v. City of Prichard, 709 So. 2d 1199 (Ala.1998), and City of Mobile v. Jackson, 474 So. 2d 644 (Ala.1985), for the proposition that this Court has previously accepted the proposition that a plaintiff can recover mental-anguish damages based on negligent interference with the enjoyment of the plaintiff's home, without the plaintiff's having to show either a physical injury or that the plaintiff was within the "zone of danger." While I recognize that such an exception exists with regard to contract law, see B & M Homes, Inc. v. Hogan, 376 So. 2d 667 (Ala.1979), I can find no such exception under general negligence law. Neither Jackson nor Carson specifically states that in cases involving a plaintiff's home Alabama recognizes an exception to the general rules for recovering mental-anguish damages under the theory of negligence. In Carson, the plaintiffs' homes, streets, and yards were subjected to the overflow of raw sewage, an overflow attributable to the negligent maintenance of the city's sewage system. 709 So. 2d at 1202-03. *186 The jury awarded the plaintiffs damages for property damage as well as for mental anguish. Id. at 1201-02. Justice Johnstone's dissent implies that this Court's failure to set aside such a verdict, absent evidence of physical injury or danger of physical injury, signifies that this Court has recognized an exception to the ordinary rule when the alleged negligence at issue caused damage to a home. However, the plaintiffs in Carson produced sufficient evidence indicating not only that they suffered physical injury, but also that they were within the "zone of danger." Id. at 1202-03. As noted in my special concurrence in White Consolidated Industries, Inc. v. Wilkerson, 737 So. 2d 447 (Ala.1999), no exception to the "zone-of-danger" rule was necessary in Carson to support an award of damages for mental anguish because in Carson "the homeowners experienced continuing suffering caused by the presence of raw sewage in their yards and homes; that suffering included the difficulty of dealing with an unpleasant odor,[9] a loss of appetite, and, in one instance, snakes in the house." 737 So. 2d at 450 (Lyons, J., concurring specially). Therefore, Carson does not stand for the proposition that Alabama does not require the plaintiffs's presence within a "zone of danger" when the alleged negligent conduct causes mental anguish as a result of events taking place in the plaintiff's home. The other case relied upon by Justice Johnstone, City of Mobile v. Jackson, is equally insufficient as precedent for an exception to the zone-of-danger requirement when negligence affects one's enjoyment of a home. The plaintiffs in Jackson alleged $19,000 in property damage resulting from flooding of their homes caused by the city's negligence in designing its drainage system. 474 So. 2d at 644. The jury returned a verdict for $58,000; the defendants appealed from a judgment based on that verdict, arguing that the plaintiffs could not recover damages in excess of the $19,000 that had been previously specified in the notice to the municipality. Id. at 650. Although this Court upheld the jury's verdict, a review of the opinion in that case, and the briefs filed in that case, reflects that the only issue argued regarding the validity of the award of damages concerned whether the plaintiffs could recover damages in excess of the amount indicated in their notice, and it reflects that the sufficiency of the evidence to support an award of mental-anguish damages was not in issue. Jackson, 474 So. 2d at 650-51. Therefore, the holding in Jackson constitutes no more than physical precedent, and simply does not stand as a considered judgment of this Court on anything more than the issue whether the plaintiffs could recover against the city an amount exceeding that specified in their notice. Although I agree with the majority's resolution of the questions dealt with in Part II.B. and Part II.C., I dissent as to Part II.A. because the majority has unnecessarily applied the "zone-of-danger" test. The plaintiffs presented evidence of negligence by showing that their toilets repeatedly overflowed, with the overflows soaking the carpet in the bathroom and the adjoining closet. As a result of the repeated soakings, the carpet began to emit a foul odor, which the plaintiffs had to endure for about four years. I would characterize this evidence as evidence indicating physical discomfort and not as evidence indicating mental anguish alone. Therefore, I would uphold the jury's award of damages, based on a theory of physical discomfort; under this theory, it would not be necessary for the plaintiff in a negligence action to show that he or she was within a zone of danger as a prerequisite to recovering mental-anguish damages. *187 However, in order to accept and apply this physical-discomfort theory, we must recognize a distinction between real and imagined sensory reactions. Physical discomfort is a real, rather than an imagined, sensory reaction, and it occurs when an event directly affects one's senses. An imagined sensory reaction occurs when an event takes place that does not directly affect one's senses, but the mind imagines what would have happened if there had been a real sensory reaction. For example, if a light fixture falls in a house and strikes an occupant, the occupant has suffered physical discomfort through the sense of touch. If the light fixture falls near the occupant but does not strike the occupant, the occupant may nonetheless imagine being hit by the light fixture and may thereby suffer fright or anxiety. A real sensory reaction involving physical discomfort can occur without contact of a tangible object with the body. For example, a blast of hot air can burn skin as to cause physical discomfort separate from mental anguish and yet, from the blast only heated molecules of air reach the skin. A bright flash of light can hurt the eyes and cause physical discomfort, yet, from the flash only rays of light reach the eye. Likewise, a loud noise can reach the eardrum and cause physical discomfort and yet, only sound waves reach the ear. As to each of these, we recognize the incident as a "hit" and not simply as a "near miss," and, by that recognition, we allow one to recover for negligently induced physical discomfort. See Sears, Roebuck & Co. v. Harris, 630 So. 2d 1018 (Ala.1993) (damage to sight), and CSX Transp., Inc. v. Long, 703 So. 2d 892 (Ala. 1996) (damage to hearing). Why should we allow a plaintiff to recover damages for physical discomfort caused by one who negligently causes a blast that sends heated molecules of air into contact with the plaintiff's skin, a flash that sends light rays into the plaintiff's eye, and some event that sends sound waves against the eardrum, while not allowing a plaintiff to recover damages for physical discomfort caused by one who negligently causes contaminated molecules of air to come into contact with the plaintiffs olfactory organ? The body's reaction to a foul odor is a real, not an imagined, sensory reaction and is therefore a form of physical discomfort, just as burned skin, blinded eyes, and painful ears. Any difference between these kinds of injury is a matter of degree and not of kind. In McCracken v. Swift & Co., 212 Mo. App. 558, 250 S.W. 953 (1923), a Missouri appellate court addressed the proper categorization of such damages: 212 Mo.App. at 564-65, 250 S.W. at 954. (Emphasis added.) Traditional theories of negligence permit a plaintiff to recover for physical harm as well as for mental anguish, if the plaintiff was within the "zone of danger." We confuse things when we apply to the body's physical reaction to an odor the rules applicable to an imagined sensory reaction, such as fear or anxiety; when we do that, we unnecessarily restrict the plaintiff's right to recover for having suffered the physical discomfort. The damage or harm caused by a negligently caused foul odor is distinct from mental anguish, and it should be compensable based upon the fact of its existence, without the plaintiff's having to show a physical injury or to show that the plaintiff feared for his or her physical safety, as the plaintiff is required to do by the zone-of-danger test applicable to a claim of damages for mental anguish. To allow a plaintiff to recover for exposure to a foul odor would not expand the recovery of damages so as to open the floodgate to trivial claims. As expressed in Borland v. Sanders Lead Co., 369 So. 2d 523, 529 (Ala.1979), Alabama recognizes the maxim de minimis non curat lexthe law does not concern itself with trifles. In applying this maxim, this Court has recognized that there is a point at which negligently caused damage in the form of physical discomfort is so trifling that the law will not recognize a remedy. Id. However, this present case is not a case of a trifling injury. It was undisputed that the plaintiffs' toilets repeatedly overflowed and that as a result of the overflows the carpet in the bathroom and nearby closet remained wet and emitted a foul odor that the plaintiffs had to endure for about four years. Although the plaintiffs' complaint claimed mental-anguish damages only, as opposed to damages for physical discomfort, a claim of damages for physical discomfort should be treated as having been tried by consent of the parties, in accordance with Rule 15(b), Ala. R. Civ. P. The plaintiffs' evidence of the foul odor was admitted without objection, and, pursuant to Rule 15(b), the pleadings are deemed amended to conform to the evidence. See Thurman v. Thurman, 454 So. 2d 995 (Ala.Civ.App. 1984). Based on this evidence, the jury returned a verdict awarding $12,500 as compensatory damages. The majority overturns this award of $12,500 on the basis that the negligence claim is without merit because, it says, the plaintiffs failed to produce evidence of physical injury and failed to show that they were within the "zone of danger." However, the plaintiffs' failure to offer evidence of secondary effects or other consequences of the foul odor, such as loss of appetite or nausea, should not defeat their right to recover on their negligence claim because the evidence indicates that they did in fact suffer a physical discomfort in enduring the odor. I cannot substitute my judgment for that of the jury and thereby conclude that the comparatively meager award of $12,500for enduring the foul odor for about four years, during which time repeated demands for repairs were refusedwas excessive. I respectfully dissent. [1] The Dykeses did not make a breach-of-warranty claim against Grand Manor. [2] In Aspinwall, this Court held: "[I]f a complaint has more than one count and the defendant believes that the evidence is not sufficient to support one or more of those counts, he must challenge this by motion for directed verdict, specifying the count which is not supported by evidence and detailing with specificity the grounds upon which the particular count is not supported by the evidence. If this is not done and all counts go to the jury and a general verdict is returned, the court will presume that the verdict was returned on a valid count." 405 So. 2d at 138 (opinion on application for rehearing). This Court has also held: "It follows from [the holding in Aspinwall] that, if the defendant files a motion for directed verdict as to a count which is not supported by the evidence and the court denies such a motion, a general jury verdict will not be presumed to have been returned on a count which is supported by the evidence.... We cannot presume that the general jury verdict relates to one of the counts which the evidence did support, where it is equally possible that it is based on the count which is unsupported by the evidence." John Deere Indus. Equip. Co. v. Keller, 431 So. 2d 1155, 1157 (Ala.1983); accord National Sec. Fire & Cas. Co. v. Vintson, 454 So. 2d 942, 946 (Ala.1984); South Cent. Bell Tel. Co. v. Branum, 568 So. 2d 795, 798-99 (Ala.1990). [3] Even so, in Sterchi Bros. Stores, this Court recognized that this rule is subject to certain exceptions. For example, "one who delivers an article ... that may become dangerous without repair and which work he contracted to do, ... is liable for the injury reasonably to be contemplated, and that is likely to result in its use, and which does, in fact, result from such negligent failure ... to any other who is not himself at fault." 236 Ala. at 352, 182 So. at 477. [4] Neither party argues that a mobile home is not a product, and we express no opinion on that issue. But see Foremost Ins. Co. v. Indies House, Inc., 602 So. 2d 380, 382 (Ala.1992) (holding that an assembler of a mobile home is deemed to be a manufacturer of a finished product, that is, the mobile home, for purposes of determining the applicability of the affirmative causal-relation defense under the AEMLD); see also Bell v. T.R. Miller Mill Co., 768 So. 2d 953 (Ala.2000) (holding that a telephone pole, although installed in the ground and affixed to real property, is a "product" for purposes of the AEMLD). As indicated above, the Dykeses did not assert an AEMLD claim. [5] In his dissent, Justice Cook assumes that the Dykeses "must [have been] in constant apprehension that someone will flush the commode and scald them." 778 So. 2d at 184. However, there is no evidence whatever in the record to support this statement suggesting that the Dykeses feared being scalded. Indeed, Mr. Dykes did not testify at trial, and no testimony of his was read into evidence. [6] As noted above, no evidence was presented to indicate that Mr. Dykes suffered any mental anguish. [7] In his dissent, Justice Lyons states that the Dykeses produced sufficient evidence of physical discomfort to justify the jury's award of mental-anguish damages because the Dykeses presented evidence indicating that the carpeting in the bathroom of the mobile home smelled bad because it got wet when the toilet overflowed. Mrs. Dykes testified that "[i]n the master bathroom, there is carpet throughout the bathroom and the bathroom has gotten soaking wet several times causing it to smell." This testimony does not constitute substantial evidence of personal, physical injury that will support an award of damages for pain and suffering. Both of the cases cited in support of the statement that Alabama law allows recovery for physical discomfort to the senses are distinguishable, on the facts, from this case. Sears, Roebuck & Co. v. Harris, 630 So. 2d 1018 (Ala.1993), involved a products-liability action against a manufacturer and a retailer of a defective gas water heater that caused severe carbon monoxide poisoning of four of the five plaintiffs (all members of the same family), resulting in the death of one of the four and the personal injury of the other three. As for the fifth plaintiff, who had not suffered physical injury, this Court ordered a remittitur of the jury's award of compensatory damages for personal injury to the nominal sum of $1.00, because she had not been exposed to the carbon monoxide. This Court explained that its order of a remittitur was required "in light of the paucity of evidence to support her claim for damages for personal injury": "[T]he plaintiffs presented no substantial evidence that she suffered any physical injury as a result of exposure to carbon monoxide gas. The only evidence of personal injury presented at trial was [the administratix's] brief testimony that [this particular plaintiff] worried about death, that she suffered mental anguish over the loss of her [deceased great granddaughter] and the injuries suffered by [her] daughter and [her] other great granddaughters and that after the accident her health worsened." Id. at 1034. Similarly, in this case, there is no evidence to support Mrs. Dykes's claim for mental-anguish damagesthere is no evidence that she suffered any physical injury or that she worried about her health or safety. CSX Transportation, Inc. v. Long, 703 So. 2d 892 (Ala.1996), was a railroad employee's negligence action against his employer under the Federal Employers' Liability Act. The employee alleged that he had suffered a hearing loss from exposure at his workplace to noise in excess of OSHA noise standards. Thus, in Long, the employee suffered a physical injury as a result of the employer's negligence. Justice Lyons relies on the premise that a bad smell is "real." We do not deny that all insults to the sensesthe smells of perfumes and of cattle trucks, the sights of flower gardens and of rusted appliances, the sounds of birds and of constructionare real. The question is not whether they are real, but whether it is wise policy to make them legally cognizable. The Legislature is the proper branch of government to determine whether it is wise policy to extend liability to all types of insults to the senses. In his dissent, Justice Johnstone states that "the rule that damages for mental anguish are not recoverable for negligence which causes only loss to property but no physical injury or danger of physical injury to any person does not apply to negligence committed upon a home." 778 So. 2d at 185. The cases cited by Justice Johnstone in support of this statement Carson v. City of Prichard, 709 So. 2d 1199 (Ala.1998), and City of Mobile v. Jackson, 474 So. 2d 644 (Ala.1985)are distinguishable from this case. In Carson, the homeowners presented substantial evidence indicating that, as a result of the defendant's negligent operation and maintenance of the sewer system, they "suffered, and continued to suffer, from the overflow of raw sewage into their yards and homes after periods of heavy rain." 709 So. 2d at 1202. "According to the [plaintiffs], the odor from the sewage overflow was so great that they could not eat in their homes and were embarrassed to have visitors." Id. In Jackson (a case governed by the "scintilla rule" of evidence), the homeowners presented evidence indicating that the defendant's design and maintenance of a drainage system caused water to flood their home, "caus[ing] substantial damage to the structure and to the personal property located in the house." 474 So. 2d at 646. As a result of the flooding, the homeowners left their home and lived in a camper parked in their backyard. Thus, in both Carson and Jackson, the plaintiffs presented sufficient evidence to meet the applicable standard of proof, evidence from which a jury could reasonably find that they had suffered mental anguish. Justice Johnstone is correct insofar as he may be speaking of the general rule in Alabama that mental anguish is a compensable injury or damage in an action on a breach of contract "`where the contractual duty or obligation is so coupled with matters of mental concern or solicitude or with the feelings of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering.'" Volkswagen of America, Inc. v. Dillard, 579 So. 2d 1301, 1303-04 (Ala.1991). Thus, this Court has allowed recovery of mental-anguish damages "[f]or actions on contracts for the repair or construction of houses or dwellings or the delivery of utilities thereto, where the breach affected habitability." Id. (citations omitted). The Dykeses, however, did not assert against Grand Manor any claim alleging breach of contract or warranty. [8] The trial court gave only two charges to the jury specifically related to the negligent-delivery-and-installation claim (Jury Charges No. 16 and No. 17), and both of those charges were expressly limited to Better Cents. [9] Under the rationale I offer in Part III of this dissent, the Carson plaintiffs could have recovered for their exposure to odor created by raw sewage, on a physical-discomfort theory rather than on a mental-anguish theory.

March 31, 2000

bd59fe69-3135-4de7-b8a0-175a787f235c

Scott v. Farnell

775 So. 2d 789

1981512

Alabama

Alabama Supreme Court

775 So. 2d 789 (2000) Alexander Adrian SCOTT v. Carla FARNELL. 1981512. Supreme Court of Alabama. April 21, 2000. *790 Michael Gillion, Mobile, for appellant. Alex W. Zoghby of Cochran, Cherry, Givens, Smith & Peters, P.C., Mobile, for appellee. MADDOX, Justice. The sole question presented in this case is whether the trial court erred in granting the plaintiff a new trial based solely on the ground that the jury's verdict in favor of the defendant was "contrary to the great weight of the evidence" or was "contrary to the preponderance of the evidence." Applying the standard of review this Court set out in Jawad v. Granade, 497 So. 2d 471 (Ala.1986), we hold that the trial court erred. We reverse and remand. Alexander Adrian Scott and Carla Farnell were driving separate automobiles on Dauphin Street in Mobile on May 24, 1996, when Scott's automobile struck the rear of Farnell's automobile. Farnell sued Scott, alleging that he had negligently caused the accident and that his negligence had proximately caused her to suffer mental anguish and physical injuries. Farnell moved the trial court, based on evidence contained in Scott's deposition, for a partial summary judgment holding that Scott had been negligent as a matter of law. The trial court granted that motion. The case proceeded to trial, and the jury returned a verdict in favor of Scott. The trial court entered a judgment on the jury's verdict. Farnell timely moved for a new trial, on the ground that the jury's verdict was "contrary to the great weight of the evidence" or was "contrary to the preponderance of the evidence." The trial court granted the motion. Scott appealed from the order granting a new trial. Rule 59(a), Ala. R. Civ. P., provides that a new trial may be granted "for any of the reasons for which new trials have heretofore [i.e., before the adoption of the Alabama Rules of Civil Procedure] been granted in actions at law." The Committee Comments on the 1973 adoption of that rule state: Section 12-13-11, Ala.Code 1975, was derived from Title 7, § 276, Ala.Code of 1940 (Recomp.1958). Thus, a new trial can be granted for the reasons listed in § 12-13-11. One of those reasons is that "[t]he verdict ... is not sustained by the great preponderance of the evidence." § 12-13-11(a)(6). In the landmark case Jawad v. Granade, 497 So. 2d 471 (Ala.1986), this Court established the standard of review it would apply in cases where a party appeals from an order granting a motion for a new trial on the basis that the jury's verdict was "against the great weight or preponderance of the evidence": Id. at 477. We apply the Jawad standard of review in this case, because Farnell did not state any other ground in her motion for a new trial.[1] In her brief, the plaintiff Farnell argues that this Court should revisit Jawad. She urges us to do so because, she argues, we have inconsistently applied Jawad in the years since that case abolished the old standard that had evolved from Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738 (1891).[2] Farnell urges this Court to "refine" Jawad by declaring that an order granting a new trial on the basis that the jury's verdict was against the great weight or preponderance of the evidence will "be reversed if the appellant proves that substantial evidence clearly or plainly and palpably supports the verdict." (Brief of appellee at 9.) This proposed "refinement" of Jawad, however, bears a striking resemblance to the old Cobb v. Malone & Collins standard that Jawad overturned. Under Cobb v. Malone & Collins, an order granting a new-trial motion would not *792 be reversed unless the evidence plainly and palpably supported the jury verdict. Under this proposed refinement of Jawad, an order granting a new-trial motion would be reversed if the appellant proves that the evidence "clearly or plainly and palpably supports the verdict." The result of adopting this proposed refinement would be to re-create the problem addressed by this Court in Jawad. In other words, accepting Farnell's invitation to refine Jawad would tilt the balance back in favor of the trial judge's view of the evidence as opposed to the jury's view of the evidence. It would, in essence, amount to a repudiation of Jawad. We decline the invitation. We now review the evidence and apply the Jawad principle in that process. Clearly, Farnell presented evidence at the trial indicating that she had experienced pain in her neck, lower back, and one knee and that that pain resulted from the accident. She also presented evidence indicating that she had experienced carpal tunnel syndrome as a result of the accident. Dr. Herbert Allen III, an orthopedic surgeon who began treating Farnell approximately one year after the date of the accident, testified by videotaped deposition that, in his opinion, Farnell's problems had been caused by the accident; the tape of his deposition was played for the jury. Farnell testified that she had never had neck problems before the accident. She testified that she had suffered from a lower-back degenerative disease since the early 1980s but that the pain associated with her preexisting back condition had disappeared approximately three years before the accident. Dr. Allen testified, however, that Farnell had a preexisting degenerative condition in both her neck and her lower back. He testified that the earliest onset of problems with that condition appeared to have come in 1982. He testified that the accident could have exacerbated the problems and caused the reemergence of Farnell's neck and back pain. Dr. Allen also testified that he had concluded that the carpal tunnel syndrome was caused by the accident; but he admitted that he had reached that conclusion because he had not been aware of any other potential cause, and he stated that he could not explain why the problem did not appear until two years after the accident occurred. Farnell testified that she was a bookkeeper and that she had a hobby of painting in a studio in her home. Dr. Allen also testified that he had concluded that Farnell's knee pain was caused by the accident. He testified that it was unlikely that the knee pain resulted from walking up and down stairs to Farnell's painting studio, because the pain appeared in only one knee. Farnell testified that she had had "eight- or nine-hour excruciating headaches" following the accident. She said she sought treatment for the headaches "after they got so severe"; that, she testified, was approximately one year after the accident. Her husband, however, testified that she did not have a history of having headaches. Farnell testified on cross-examination that she saw Dr. Lloyd Russell in the year following the accident. She did not see Dr. Allen until approximately one year after the accident, when Dr. Russell retired. She testified that she saw Dr. Russell "a number of times" during that year. However, Dr. Russell charged Farnell only $300for two office visitsduring that year. Farnell testified that Dr. Russell did not charge her for every visit she made to him. Scott's main argument is that the jury heard evidence that supported its verdict. In particular, he argues that the jury could have concluded that the symptoms Farnell complained of did not arise for some time after the accident and were not related to the accident. Farnell, on the other hand, argues that "there is no evidence which... may easily [be] perceive[d] to support the jury's verdict." (Brief of Appellee at 4.) It is not the function of this Court to assume the role of the jury and to state whether, based on the evidence presented at trial, we would have found in favor of the plaintiff and awarded her damages. Our role is, instead, to determine whether "it is easily perceivable from the record that the jury verdict is supported by the evidence." Jawad, supra. In making that determination, we are mindful that "jury verdicts are presumed to be correct, and [that] no ground for granting a new trial will be more carefully scrutinized or more rigidly limited than that the verdict is contrary to the weight of the evidence." Delchamps, Inc. v. Larry, 613 So. 2d 1235, 1239 (Ala.1992). Further, it is within the province of the jury, not an appellate court, to weigh the credibility of witnesses. Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297 (Ala.1986). Given those standards and given the Jawad standard, we conclude that the trial court erred in granting Farnell's motion for a new trial. We reverse the order granting a new trial and remand the cause for the trial court to vacate that order. Because we reverse the order granting the plaintiff a new trial, we do not reach the defendant's argument that the trial judge erred in entering the partial summary judgment for the plaintiff on the issue of liability. REVERSED AND REMANDED WITH DIRECTIONS. HOOPER, C.J., and HOUSTON, SEE, LYONS, and BROWN, JJ., concur. COOK, JOHNSTONE, and ENGLAND, JJ., dissent. COOK, Justice (dissenting). The majority reverses a trial court's order granting the plaintiffs motion for a new trial. It does so under the rule of Jawad v. Granade, 497 So. 2d 471, 477 (Ala.1986): "[A]n order granting a motion for [a] new trial on the sole ground that the verdict is against the great weight or preponderance of the evidence will be reversed for abuse of discretion where on review it is easily perceivable from the record that the jury verdict is supported by the evidence." This case, however, does not implicate Jawad. This is so, because, under the posture of this case, the jury's verdict was inconsistent as a matter of law, and, therefore, due to be set aside. The dispositive facts are undisputed. The plaintiff Carla Farnell was driving one car in a line of cars that were stopped at an intersection, waiting for the light to turn green. The defendant Scott was driving the car directly behind Farnell. Scott admitted in deposition that he was not paying attention to what he was doing, and, as a consequence, suddenly accelerated his car into the rear of Farnell's car. On that basis, the trial court entered a summary judgment in favor of Farnell on the issue of liability. The propriety of that judgment is one issue on appealan issue the majority does not address. Apparently, therefore, this case was tried solely on the issue of damages, because the summary judgment in favor of Farnell had held that Scott was negligent as a matter of law. However, the jury returned a verdict for Scott, awarding no damages. Clearly, the jury failed to follow the instructions of the trial court in so doing. Moreover, because the trial court had already found in favor of the plaintiff on liability, the jury was required to award at least nominal damages.[3] It did not. Because the verdict was fatally flawed, the trial court properly set it aside. For these reasons, I dissent. JOHNSTONE and ENGLAND, JJ., concur. [1] In a case where the new-trial motion was granted for reasons "other than ... a finding that the verdict [was] against the great weight or preponderance of the evidence," the court applies a standard of review that is somewhat more deferential to the trial judge's determination that a new trial is warranted. Curtis v. Faulkner Univ., 575 So. 2d 1064, 1065 (Ala. 1991). [2] Under Cobb v. Malone & Collins, "decisions granting new trials [would] not be reversed, unless the evidence plainly and palpably support[ed] the verdict." 92 Ala. at 635-36, 9 So. at 740. That standard, in essence, provided that a trial judge's grant of a new trial on the basis that the jury verdict was against the great weight or preponderance of the evidence was afforded great deference on appeal. The problem with that standard, as identified in Jawad's statement of Justice Jones's argument for abandoning the Cobb standard, was "that the constitutional right of trial by jury [was] overborne by a standard which render[ed] futile all efforts to review an order granting a new trial where there [was] any evidence to support a verdict contrary to that rendered by the jury." Jawad, 497 So. 2d at 476. [3] There is no issue of contributory negligence in this case.

April 21, 2000