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Gibson v. City of Alexander City

779 So. 2d 1153

1981899

Alabama

Alabama Supreme Court

779 So. 2d 1153 (2000) Omer Stevie GIBSON, d/b/a Yesterday's Billiards Cafe v. CITY OF ALEXANDER CITY et al. 1981899. Supreme Court of Alabama. March 17, 2000. Jim L. DeBardelaben of DeBardelaben, Norwood & Westry, P.C., Montgomery, for appellant. Randall Morgan of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellees. ENGLAND, Justice. Omer Stevie Gibson, d/b/a/ Yesterday's Billiards Cafe, appeals from a judgment of the Tallapoosa County Circuit Court dismissing his lawsuit against the City of Alexander City (the "City"), its mayor, and its city council. He had sued the mayor and the council members, both personally and in their official capacities. We affirm. On November 27, 1996, Gibson was issued a retail liquor license by the Alabama Alcoholic Beverage Control Board, for his business, operated under the name Yesterday's Billiards Cafe ("Yesterday's"). He operated that business in Alexander City. This license authorized Gibson to sell and serve alcoholic beverages 24 hours a day, six days a week. Yesterday's, and other local establishments with liquor licenses, were required under the licenses not to sell or serve alcoholic beverages between 2 *1154 a.m. on Sunday and 12:01 a.m. on Monday. On February 3, 1997, the City adopted Ordinance No. 097-7. Section 2 of that ordinance provides: Section 5 of the ordinance provides: Gibson alleged that, since the City adopted and began enforcing this ordinance, he has not been able to operate his business "as authorized and allowed by the laws of the State of Alabama, including but not limited to the Alcoholic Beverage Licensing Code." Gibson alleged that, because of the enforcement of the ordinance, he lost sales, his profits declined, and he was forced to close his business. On January 15, 1999, Gibson filed a two-count complaint against the City, its mayor, and its council, and the council members. In Count I, Gibson alleged that Ordinance 097-7 violates state law and that the defendants acted willfully, wantonly, recklessly, and "beyond [their] authority" in adopting and enacting the ordinance. Gibson requested a judgment declaring that Ordinance 097-7 violates state law, and an order temporarily restraining the defendants from enforcing the ordinance. Count II alleged that the defendants, "acting under color of State law," had "willfully, intentionally, purposely, recklessly, illegally, and unconstitutionally adopted and approved" Ordinance 097-7. Therefore, claimed Gibson, the ordinance violated Alabama Constitution of 1901, Art. IV, § 104, which provides: Between February 22 and March 5, 1999, all of the defendants filed motions to dismiss; each of those motions sought a dismissal based on a claim of immunity. The City also moved to dismiss on the ground that a municipality cannot be liable for a wanton, willful, reckless, or intentional act, relying on Ala.Code 1975, § 11-47-190. On April 15, 1999, the trial court entered an order dismissing the mayor and the members of the city council. On April 17, 1999, the court granted the City's motion to dismiss, stating that "the City had the authority to enact Ordinance 097-7, and said Ordinance is not inconsistent with state law." Gibson appealed. The sole issue Gibson raises on this appeal is whether the City had authority to adopt an ordinance restricting the sale of alcoholic beverages. Section 11-45-1, Ala.Code 1975, authorizes municipalities to adopt ordinances in furtherance of their police powers. It provides: Section 11-45-9, Ala.Code 1975, allows municipalities to impose penalties upon persons who violate municipal ordinances: In Lanier v. City of Newton, 518 So. 2d 40 (Ala.1987), this Court wrote: 518 So. 2d at 43 (emphasis added). The challenged ordinance merely enlarges upon the statutory provisions of the Alcoholic Beverage Licensing Code; it is not inconsistent with Alabama statutory law or the Alabama Constitution. What this Court stated in Gadsden Motel Co. v. *1156 City of Attalla, 378 So. 2d 705 (Ala.1979), a case with facts similar to those in the present case, is equally true in this case: Gadsden Motel, 378 So. 2d at 706 (emphasis added)(footnote omitted). Ex parte City of Birmingham, 624 So. 2d 1018, 1021 (Ala.1993). Although the plaintiff couched his complaint in terms of wantonness, willfulness, and recklessness, nothing in his complaint alleges conduct that would permit a recovery based on those claims. Neither has Gibson alleged that the mayor and the members of the council committed a tortious act outside the general scope of their authority. Gibson has alleged no facts on which he could recover against the mayor or the members of the city council. Therefore, the trial court properly dismissed them from Gibson's lawsuit. Id. Gibson claims that Ordinance 097-7 is unconstitutional because, he says, it conflicts with, or is inconsistent with, Ala. Code 1975, §§ 28-3A-1 to -26, known as the "Alcoholic Beverage Licensing Code." We have carefully reviewed the Alcoholic Beverage Licensing Code and we do not believe that Ordinance 097-7 in any way conflicts with, or is inconsistent with, the provisions of that statute. Finally, Gibson notes that the Alcoholic Beverage Licensing Code was enacted after this Court decided Gadsden Motel Co. v. City of Attalla, 378 So. 2d 705 (Ala.1979). Therefore, Gibson argues that Gadsden Motel Co. was impliedly overruled by the Alcoholic Beverage Licensing Code. Our holding that Ordinance 097-7 does not conflict with provisions of the Alcoholic Beverage Licensing Code renders a resolution of Gibson's final argument unnecessary. For the foregoing reasons, the trial court's judgment is due to be affirmed. AFFIRMED. MADDOX, HOUSTON, COOK, and BROWN, JJ., concur. SEE and LYONS, JJ., concur specially. JOHNSTONE, J., concurs in part and concurs in the result in part. LYONS, Justice (concurring specially). Although Gibson's license from the State authorizes liquor sales 24 hours per day, 6 days per week, I can find nothing in the Alcoholic Beverage Licensing Code, §§ 28-3A-1 to -26, Ala.Code 1975, that confers upon a licensee the right to maintain *1157 operations 24 hours per day, 6 days per week. Section 11-45-1, Ala.Code 1975, authorizes municipal corporations to "adopt ordinances and resolutions not inconsistent with the laws of the state." Consequently, a municipal ordinance that requires closing on terms other than 24 hours per day, 6 days per week, does not offend § 11-45-1 because such an ordinance is not "inconsistent with the laws of the state." As for the requirement of the ordinance that operations cease at midnight on Saturday night, I note that the provisions of § 28-3A-25(a)(20) and (21) require only a closing by 2:00 a.m. on Sunday. I do not see in those sections any requirement that an establishment be allowed to remain open until 2:00 a.m.; hence, I conclude that the ordinance requiring an establishment to close at midnight on Saturday night is not inconsistent with § 28-3A-25(a)(20) and (21). Therefore, I conclude that the adoption of the ordinance at issue here was a proper exercise of the municipality's authority granted by § 11-45-1, Ala.Code 1975. Because we hold that the ordinance is valid, Gibson's claims against the mayor and the council members, which are based on the allegation that they had adopted an invalid ordinance, necessarily fail as a matter of law. SEE, J., concurs. JOHNSTONE, Justice (concurring in part and concurring in the result in part). I concur as to the claims against the mayor and the city council members. I concur in the result as to the claim against the city itself.

March 17, 2000

b3a91acd-fee9-453f-b69e-10095b2ce105

Smith v. Jackson

770 So. 2d 1068

1981342

Alabama

Alabama Supreme Court

770 So. 2d 1068 (2000) Mac SMITH and Mac Smith, Inc. v. John JACKSON. 1981342 Supreme Court of Alabama. April 14, 2000. *1070 James T. Baxter III of Ables, Baxter, Parker & Hall, P.C., Huntsville, for appellants. James R. Cooper, Jr., of Cooper & Cooper, Montgomery, for appellee. SEE, Justice. John Jackson and his wife Lisa Jackson filed this action against Mac Smith, Inc., and Mac Smith individually (the owner and operator of Mac Smith, Inc.), asserting claims relating to the fact that they were dissatisfied with the construction of their home, which the defendants had built for them. Mr. Jackson alleged that Mac Smith had breached a contract whereby he had agreed to construct the Jacksons' home according to certain specifications. Both Mr. and Mrs. Jackson alleged that Mac Smith, Inc., had breached an express warranty regarding the quality of workmanship and materials to be provided in the construction of the home. Following a trial, the jury returned a verdict in favor of Mr. Jackson and against Mac Smith individually for breach of the contract and in favor of Mr. Jackson and against Mac Smith, Inc., for breach of the express warranty. The jury assessed a total of $275,000 in damages: $40,000 for breach of the contract, $135,000 for breach of the express warranty, and $100,000 for emotional distress. The jury found in favor of Mac Smith, Inc., on Mrs. Jackson's breach-of-express-warranty claim. The trial court rendered a judgment on the verdict. The parties later reached a settlement regarding the emotional-distress damages. The defendants appealed. They argue that the judgment must be reversed for several reasons.[1] However, we need only *1071 address one of those arguments: that the Jacksons exercised their peremptory strikes in a racially discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and its progeny. The Jacksons used their peremptory strikes to remove all white veniremembers. The trial court required the Jacksons to state race-neutral reasons for those strikes. The Jacksons offered explanations for each strike, and the court found that their explanations were race-neutral and not pretextual. We hold that the trial court's finding was clearly erroneous as to one of those explanations, and we therefore reverse the judgment and remand the case for a new trial. As a threshold matter, we reject Mr. Jackson's argument that this Court is without jurisdiction to entertain this appeal. He argues that the notice of appeal was not timely. On November 16, 1998, by two separate written orders, one pertaining to each defendant, the trial court rendered its judgment on the jury's verdict of that date. However, the judgment (consisting of the two written orders) was not filed in the clerk's office until January 12, 1999. On January 29, the defendants filed a motion for a judgment as a matter of law or, in the alternative, for a new trial.[2] The trial court denied that motion on March 31. The defendants filed their notice of appeal on May 12-42 days after March 31. Mr. Jackson argues that the judgment was entered on November 16, 1998, and that, therefore, the defendants' January 29, 1999, motion was not timely and did not toll the running of the time allowed for filing a notice of appeal. See Rule 4(a)(3), Ala. R.App. P. Therefore, he argues, the defendants' May 12, 1999, notice of appeal was not timely and this Court does not have jurisdiction of this appeal. The defendants argue that the judgment against them was entered on January 12, 1999, when the two written orders were filed in the clerk's office. Therefore, they argue, their January 29 motion was timely; that motion tolled the running of the time allowed for filing a notice of appeal; and their notice of appeal was timely because it was filed on the 42nd day after the March 31 denial of their January 29 motion. We agree. Pursuant to Rule 58(c), Ala. R. Civ. P., "[n]otation of a judgment or order on separately maintained bench notes or in the civil docket or the filing of a separate judgment or order constitutes the entry of the judgment or order." "Rule 58 ... obliterate[s] any distinction between [the ministerial act of] entry and [the judicial act] of rendition of judgment and ... make[s] the operative event the act of the judge." 2 Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated, § 58.2, at 255 (3d ed. 1996). However, when a judge renders a judgment by a separate written order, that judgment is not entered until it is filed in the clerk's office. See Lacks v. Stribling, 406 So. 2d 926, 930 (Ala.Civ.App.), cert. denied, 406 So. 2d 932 (Ala.1981). Thus, although under Rule 58(c), rendition and entry of judgment occur simultaneously when the *1072 trial judge notes the judgment on the case action summary sheet or on separately maintained bench notes, see Rule 58, Ala. R. Civ. P., Committee Comments on 1973 Adoption, the Rule nevertheless preserves the distinction between rendition and entry of judgment when the trial judge renders judgment "by executing a separate written document," Rule 58(a), Ala. R. Civ. P. In this case, the trial judge rendered his judgment on the jury verdicts by executing two separate orders. Therefore, the judgment against the defendants was not entered until the two orders were filed in the clerk's office on January 12, 1999. Accordingly, the notice of appeal was timely. The defendants argue that the Jacksons exercised their peremptory challenges in a racially discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and its progeny. The jury venire was composed of 8 white persons and 29 black persons. The Jacksons exercised peremptory challenges against all eight white veniremembers. The defendants made a Batson objection, and the trial court required the Jacksons to provide race-neutral reasons for each of the eight contested challenges. The trial court found that the Jacksons' stated reasons were race-neutral, were not pretextual, and were based on information disclosed during voir dire examination. On appeal, the defendants argue that, as to three of the white veniremembers, the Jacksons' stated reasons were pretextual and were not based on information disclosed during voir dire. With respect to one of the veniremembers, we agree. The Jacksons' attorney offered the following reason for striking veniremember M.H.: There was no information disclosed during voir dire concerning M.H.'s alleged past employment with Welch's or her having sold "baby stuff" to Mac Smith or his family. The Jacksons' attorney did, however, ask the veniremembers during voir dire whether any of them knew either of the Jacksons. M.H. did not indicate that she did. The general rule under Alabama law is that "the party alleging a discriminatory use of peremptory challenges bears the initial burden of establishing a prima facie case of discrimination." Looney v. Davis, 721 So. 2d 152, 164 (Ala.1998) (citing Ex parte Branch, 526 So. 2d 609, 622 (Ala. 1987). "After a prima facie case is established, there is a presumption that the peremptory challenges were used to discriminate on the basis of race." Id. (citing Branch, 526 So.2d at 623)). The burden then falls upon the party against whom the prima facie case is established to "articulat[e] a clear, specific, and legitimate reason for the challenge which relates to the particular case to be tried, and which is nondiscriminatory." Id. (quoting Branch, 526 So.2d at 623) (emphasis omitted). However, when the trial court orders the party against whom a Batson objection is directed to state race-neutral reasons for his peremptory challenges, "the preliminary issue [whether the objecting party established] a prima facie case [of racial discrimination in the exercise of peremptory challenges] becomes moot and this Court will proceed directly to an evaluation of the explanations given." Id. at 164. Under Alabama law, the trial judge must "evaluat[e] the evidence and explanations presented" and "determine whether the explanations are sufficient to overcome *1073 the presumption of bias." Branch, 526 So. 2d at 624. "The trial judge cannot merely accept the specific reasons given... at face value; the judge must consider whether the facially neutral explanations are contrived to avoid admitting the acts of group discrimination." Id. This Court will not overturn "[t]he trial court's ruling on the question whether the responding party offered legitimate race-neutral reasons ... unless it is clearly erroneous." Looney, 721 So. 2d at 164. "However, `intuitive judgment or suspicion by [the proponent of the strike] is insufficient to rebut the presumption of discrimination.'" Id. at 165 (quoting Branch, 526 So.2d at 623). Therefore, "strikes based upon counsel's mere suspicion alone that a veniremember has a relationship that would constitute a valid, race-neutral reason will not be upheld, especially if on voir dire examination there was no inquiry into whether the suspected relationship actually exists." Id. In Looney v. Davis, this Court held that the trial court had abused its discretion in finding that the reason given by the plaintiffs attorney for striking a veniremember was legitimate and race-neutral. 721 So. 2d at 164. The explanation given by the plaintiffs attorney was that it was his "judgment that [the potential juror] would know the [defendant's] family from the country club as well as social activities." Id. at 163. However, when the plaintiffs attorney asked the members of the venire whether any of them knew the defendant and whether any of them were members of the country club to which the defendant belonged, that veniremember did not indicate that he knew the defendant or that he was a member of the country club. Id. Similarly, in this case, the explanation given by the Jacksons' attorney as to why he struck M.H. was not based on information disclosed during voir dire. The explanation given by the Jacksons' attorney is somewhat cryptic, but it appears that his reason for asserting a peremptory challenge against M.H. was either that M.H. knew Mac Smith because she had in fact sold "baby stuff" to him or to his family, or that M.H.'s former occupational experiences would somehow influence her to look upon Smith more favorably than upon the Jacksons. If M.H. had in fact sold "baby stuff" to Mac Smith or his family, and that fact had been disclosed during voir dire, we might accept the trial court's finding that the reason offered by the Jacksons' attorney was legitimate and race-neutral. See Looney, 721 So. 2d at 165 (noting that "`[s]trikes based on the veniremember's relationship to or acquaintance with the defendant or with the defendant's witnesses have generally been upheld'") (quoting Rowe v. State, 625 So. 2d 1210, 1211 (Ala.Crim.App.1993)). The Jacksons' attorney, however, could easily have ascertained during voir dire whether that was a fact, but failed to do so. Therefore, we must conclude that, to the extent the explanation given by the Jacksons' attorney can be understood as implying that M.H. knew Mac Smith, it was based on "intuitive judgment or suspicion" and did not constitute a legitimate, race-neutral reason for the peremptory strike. Looney, 721 So. 2d at 165. To the extent the explanation given by the Jacksons' attorney can be understood as implying that M.H. would be influenced by her former occupation to look more favorably upon Mac Smith than upon the Jacksons, it also fails to constitute "a clear, specific, and legitimate reason for the challenge which relates to the particular case ... and which is nondiscriminatory." Branch, 526 So. 2d at 623 (emphasis omitted). Although a veniremember's past or present occupation can be a legitimate, race-neutral reason for a peremptory strike, see Burlington Northern R.R. v. Whitt, 575 So. 2d 1011, 1018 (Ala.1990), cert. denied, 499 U.S. 948, 111 S. Ct. 1415, 113 L. Ed. 2d 468 (1991), "strikes allegedly based upon a veniremember's occupation have not been upheld where the employment *1074 does not appear in any way to `relate[] to the particular case to be tried.'" Looney, 721 So. 2d at 166 (quoting Branch, 526 So.2d at 623). The Jacksons' attorney offered no reason why M.H.'s former occupation of selling "baby stuff" was relevant to this case involving home construction, and we do not perceive any such reason. Therefore, we hold that, under the facts of this case, the trial court abused its discretion in finding that the reasons given by the Jacksons' counsel for striking M.H. were not pretextual. This Court has stated that "the removal of even one juror for a racially discriminatory reason is a violation of the equal protection rights of both the excluded juror and the party challenging the peremptory strike." Looney, 721 So. 2d at 163 (citing Ex parte Jackson, 640 So. 2d 1050 (Ala.1993), and Ex parte Bird, 594 So. 2d 676 (Ala.1991)). Because the trial court erred in accepting as race-neutral the Jacksons' explanation for striking veniremember M.H., we reverse the trial court's judgment and remand this case for a new trial. REVERSED AND REMANDED. HOOPER, C.J., and COOK, LYONS, and BROWN, JJ., concur. MADDOX, HOUSTON, JOHNSTONE, and ENGLAND, JJ., concur specially. MADDOX, Justice (concurring specially). I was almost persuaded to dissent from the holding regarding the defendants' challenge to the plaintiffs' peremptory strike of prospective juror M.H., because of the principle of law that we must give great deference to the finding of the trial judge. However, I must agree that the record in this case compels us to reverse the judgment. This Court has reviewed other cases in which a party had used all or most of its peremptory challenges to remove members of a particular race from the jury venire. See, Avery v. State, 545 So. 2d 123 (Ala.Crim.App.1988). In Avery, the prosecution used all of its strikes to remove blacks from the jury venire. Because the trial court had not had the guidance of this Court's decision in Ex parte Branch, 526 So. 2d 609 (Ala.1987), the Court of Criminal Appeals initially remanded the case to allow the prosecution to show the trial court, if it could, why it had used its 12 peremptory strikes to remove blacks from the venire, the court noting that no black had served on the jury. A remand in this present case would not be appropriate, because Ex parte Branch and its progeny have clearly established guidelines for trial courts to use when faced with a Batson or Branch challenge. In Avery, on return to the remand, the Court of Criminal Appeals examined the record and concluded, as this Court does today in this present case, that the judgment had to be reversed.[3] *1075 Although I concur in today's opinion, I must state once again that I believe Batson is consistent with what I understand to be the policy of this Statethat jurors should be selected from a list that contains a fair cross-section of the area served by the court and that any form of discrimination against a particular juror on account of race, color, religion, sex, national origin, or economic status is prohibited. I must advance once again, as I have before, a simple solution to most problems that arise when either party claims a Batson violation. In a special concurrence in Ex parte Bruner, 681 So. 2d 173 (Ala.1996), I posed the following question: "Why has Batson caused judges and lawyers so much difficulty and why do members of the Supreme Court of the United States still disagree on what Batson said?" Id. at 186. I then answered the question and set out my personal views on what the law of this State and the law of the United States required in the use of peremptory challenges in the selection of trial juries. I then proposed a solution that I felt would eliminate substantially a result similar to the one that is required here. In Bruner, I wrote: 681 So. 2d at 190. HOUSTON, Justice (concurring specially). I agree with John Jackson's discussion in his brief about peremptory challenges: "[A]n attorney should be able to [strike] a juror based upon what he hears and how [members of the venire] respond by nonverbal means." See Ex parte Branch, 526 So. 2d 609, 632-34 (Ala.1987) (Houston, J., dissenting); see also Ex parte Weaver, 682 So. 2d 493 (Ala.1996) (Houston, J., dissenting); *1076 Ex parte Bruner, 681 So. 2d 173, 194 (Ala.1996) (Houston, J., concurring in the result); Nix v. Chilton County Comm'n, 667 So. 2d 719, 721-22 (Ala.1995) (Houston, J., concurring in the result); Ex parte Thomas, 659 So. 2d 3, 8-9 (Ala.1994) (Houston, J., concurring in the result); Ex parte Bankhead, 625 So. 2d 1146, 1149 (Ala. 1993) (Houston, J., dissenting); Ex parte Demunn, 627 So. 2d 1010, 1010-11 (Ala. 1992) (Houston, J., concurring in the result); Huntley v. State, 627 So. 2d 1013, 1018-19 (Ala.1992) (Houston, J., dissenting); Ex parte Thomas, 601 So. 2d 56, 59 (Ala.1992) (Houston, J., dissenting); Ex parte Adkins, 600 So. 2d 1067, 1072 (Ala. 1992) (Houston, J., concurring in the result); Moore v. Ray Sumlin Constr. Co., 570 So. 2d 573, 575 (Ala.1990) (Houston, J., dissenting); Thomas v. Diversified Contractors, Inc., 551 So. 2d 343, 349-53 (Ala. 1989) (Houston, J., dissenting); Van Scoy v. State, 555 So. 2d 195 (Ala.1989) (Houston, J., dissenting); Ex parte Jackson, 516 So. 2d 768, 773 (Ala.1986) (Houston, J., concurring in the result). But that is a battle I fought and lost; I have long since joined my fellow Justices in recognizing that Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and its progeny, substantially changed, if they did not eliminate, the peremptory challenge as it was known prior to Batson. ENGLAND, Justice (concurring specially). I write to voice my concern about this Court's reviewing matters that were not presented for a ruling by the trial court. The Court upholds the defendants' Batson challenge on the ground that the reasons articulated by the Jacksons' attorney for striking M.H. were pretextual and that the trial court abused its discretion in ruling to the contrary. While I agree that the reasons provided in the analysis of this question would require the court to grant the Batson challenge, I am concerned that the defendants did not at trial challenge the reasons given by the Jacksons' attorney and bring them to the attention of the trial court. This Court recently stated in Ex parte Davidson, [Ms. 1980430, February 11, 2000] ___ So.2d ___ (Ala.2000): ___ So.2d at ___. It appears that the Court today does not apply the rule expressed in Davidson, i.e., the rule that the trial court will not be held in error based on claims not presented for its review. I write to express my concern for the lack of consistency in our review of Batson challenges. JOHNSTONE, J., concurs. [1] Specifically, the defendants argue that the trial court erred in excluding deposition testimony of their expert witness, who was more than 100 miles away during the trial; that the trial court erred in denying their motion for a mistrial made after Mr. Jackson referred in his testimony to the fact that the framing subcontractor had liability insurance that might have covered the Jacksons' claims; that the jury's verdict in favor of Mr. Jackson on his breach-of-warranty claim and against Mrs. Jackson on her breach-of-warranty claim is inconsistent; that Mr. Jackson was not entitled to recover damages for both breach of the contract and breach of the express warranty, and that the trial court erred in refusing their requested jury instruction to that effect; that the damages for breach of warranty exceeded the warranty's express limitation on damages; that the damages award was not supported by the evidence, because Mr. Jackson offered no proof of the difference between the fair market value of the house as it should have been constructed and the fair market value of the house as it was actually constructed; and that the damages were excessive because they were greater than the amount necessary to put Mr. Jackson in the position he would have been in if the contract had never been breached, i.e., the amount Mr. Jackson paid to the defendants plus the amount he paid to have the partially constructed house removed from his property. [2] The defendants had filed a similar motion on December 15, 1998, which the trial judge denied on December 18 by writing "denied" on the front of the motion and signing and dating his notation. The trial judge later left office, and on January 21, 1999, the defendants filed a motion for "reconsideration" of the December 18 denial, asserting that the writing of the word "denial" had been a clerical error and that the trial judge should have scheduled a hearing on the motion. A new judge was appointed, and that judge granted that motion. These facts, however, are not relevant to the issue whether the defendants' notice of appeal was timely, because, as we explain later, the judgment was not entered until January 12, 1999. [3] In Avery, the Court of Criminal Appeals, based on the record before it, stated: "We have considered the reasons given by the prosecutor for the peremptory striking of all blacks. We conclude that sufficient race-neutral reasons were given for striking black venirepersons number 2, 4, 43, 46, and 74. Number 2 knows the appellant and is about his age, number 4 lives next door to appellant, number 43 is related to appellant, number 46 has difficulty hearing, and number 74 is a defendant in a pending criminal case. As to the remaining venirepersons, number 33, 42, 108, 125, 104, 122, and 118, we are troubled by the reasons given and have grave doubts as to their legitimacy. Venirepersons number 33, 42, 108, and 125 were struck for the same alleged reason, i.e., that his or her demeanor, attitude, and body language indicated a negative attitude toward the prosecutor and the state's case. The reasons given for striking number 104 were that the venireperson is the same age as appellant and that a family with a similar name is under investigation. Number 122 was struck because he has the same last name as defendants in prior cases, and number 118 was struck because he is the same age as appellant. "An examination of the voir dire questioning shows a complete lack of meaningful questions directed to the black venirepersons and related to the reasons given for striking them. `A prosecutor's failure to engage black prospective jurors "in more than desultory voir dire, or indeed to ask them any questions at all," before striking them peremptorily, is one factor supporting an inference that the challenge is in fact based on group bias.'" People v. Turner, 42 Cal. 3d 711, 726 P.2d 102, 111, 230 Cal. Rptr. 656 (1986). Our supreme court in Ex parte Branch observed that `a lack of questioning to the challenged juror, or a lack of meaningful questions' is a consideration to support the finding that the proffered explanations are a `sham or pretext.' 526 So. 2d at 623, 624." 545 So. 2d at 126-27.

April 14, 2000

23b3c175-5ce3-4c67-8dc9-83ae997a69c5

Ex Parte Drinkard

777 So. 2d 295

1980662

Alabama

Alabama Supreme Court

777 So. 2d 295 (2000) Ex parte Gary DRINKARD. (Re Gary Drinkard v. State). 1980662. Supreme Court of Alabama. April 21, 2000. *296 Randall S. Susskind, Equal Justice Initiative of Alabama, Montgomery; Kim Dobbs-Ramey, Decatur; and Britt Cathen, Decatur, for petitioner. Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for respondent. HOOPER, Chief Justice. The opinion of November 19, 1999, is withdrawn and the following opinion is substituted therefor. A jury convicted Gary Drinkard of murder made capital because it was committed during a robbery in the first degree. Ala. Code 1975, § 13A-5-40(a)(2). Drinkard waived his right to a sentencing hearing before the jury. At his sentencing hearing before the judge, Drinkard spoke in his own behalf, but offered no evidence of mitigating circumstances; the trial court sentenced him to death. The Court of Criminal Appeals affirmed the conviction and sentence. Drinkard v. State, 777 So. 2d 225 (Ala.Crim.App.1998). We reverse and remand. The trial court, over Drinkard's objection, allowed the State, during the guilt phase of the trial, to introduce evidence indicating that Drinkard had been involved in a theft committed by Beverly Robinson and Rex Segars, a theft that was unrelated to the murder. Evidence of a defendant's prior bad acts, such as Drinkard's involvement in the theft, is generally inadmissible. Such evidence is presumptively prejudicial because it could cause the jury to infer that, because the defendant has committed crimes in the past, it is more likely that he committed the particular crime with which he is chargedthus, it draws the jurors' minds away from the main issue. Ex parte Cofer, 440 So. 2d 1121 (Ala. 1983). We conclude that in this case no exception to the exclusionary rule applied to make the evidence admissible. The admission of that improper evidence requires that we reverse Drinkard's conviction. In its opinion, Court of Criminal Appeals recited the facts as they were presented by the trial court in its sentencing order: 777 So. 2d at 234-35. Drinkard raises 29 issues on this certiorari review. Because we conclude that the trial court erred to reversal in allowing the State, in the guilt phase, to introduce evidence of Drinkard's prior bad act, we need not address each of these issues. However, we feel compelled to comment on some of them because they may arise at a new trial. Two of Drinkard's issues must be addressed together. First, Drinkard claims that the trial court improperly allowed the State to introduce an incomplete version of a statement obtained from him. Second, he claims that the trial court improperly allowed the State to introduce evidence indicating that he had been an accomplice in a burglary. The trial court held that Drinkard had "opened the door" to testimony about his involvement in the burglary when he elicited the full version of the statement. Before Drinkard's arrest for the murder of Pace, Beverly Robinson telephoned the police and reported that Drinkard was involved. During the conversation with police, Robinson indicated that there was stolen property in her house. She and Rex Segar, her common-law husband, were arrested after the police conducted a search of their home. As a part of a plea bargain, the State agreed to dismiss all of the charges against Robinson if she would testify truthfully against Drinkard and if she would wear a concealed microphone and secretly tape a conversation with him. The police wired Beverly Robinson and instructed her to attempt to obtain a confession from Drinkard. Investigator Gary Walker listened to the conversation as it occurred; however, there was a problem with the equipment, and static interfered with portions of the transmission. After the conversation, Robinson wrote a report detailing it. The conversation was taped, but the tape itself was not introduced into evidence at Drinkard's trial. During the conversation, Robinson brought up a newspaper article she had seen about the murder. Drinkard replied by stating that he had known Pace, that he had bought parts from Pace, and that Pace "was a pretty good guy." (R.2038.) Drinkard then made statements that could have implicated him in the murder; for instance, Robinson testified: "And then his [Drinkard's] voice got loud and he said, `He was a big fucker.' He said, `I realized that when he grabbed my arm and ripped my sleeve.' Drinkard also made statements which could be considered exculpatory. *299 On cross-examination, Beverly testified that she tried to get Drinkard to say something about the murder, by expressing a concern that maybe the police thought Rex Segar was involved in the murder. Drinkard's counsel elicited this portion of the conversation to show that Drinkard had failed to mention the murder in response to Beverly's concerns. Drinkard, in response to Robinson's statements, simply stated that he thought the police were merely concerned with the stolen property found in Robinson and Segar's home: On re-direct examination, the State immediately began asking questions concerning Drinkard's involvement with the stolen property in Robinson and Segar's house: Following this exchange, Robinson was permitted to testify about Drinkard's involvement with the stolen property. She described how Drinkard would tell her or Segar that certain people would not be home. She testified that she and Segar would then burglarize their houses. She specifically stated that Drinkard had been involved in the burglary of Robbie Fayard's home. Drinkard first claims that the trial court incorrectly allowed the State to present only a portion of the conversation with Robinson in which Drinkard implicated himself. Drinkard made no objection at trial. The Court of Criminal Appeals held that introducing only one portion of the conversation was not plain error. In its opinion, the Court of Criminal Appeals stated: "Robinson testified that nothing more was said in the conversation that pertained to the murder. More importantly, nothing prevented [Drinkard] from questioning Robinson or Walker on cross-examination about the entire conversation." Drinkard v. State, 777 So. 2d at 280. King v. State, 355 So. 2d 1148, 1151 (Ala. Crim.App.1978). In King v. State, the Court of Criminal Appeals relied upon this Court's holdings in Chambers v. State, William v. State, Mullis v. State, and Parke v. State, when it stated: 355 So. 2d at 1151. Drinkard introduced what he claimed were exculpatory statements left out of the testimony introduced by the State. Drinkard exercised his right to introduce the whole conversation, including the exculpatory statements. The fact that Drinkard's response to Robinson, when she asked Drinkard if "Rex kill[ed] that man," concerned a totally different subject raises the possibility that he knew nothing about the murder. Therefore, those statements (about the stolen property at Robinson and Segar's home) not only concerned the same subject, they were also exculpatory. Drinkard's response to Robinson's questions did not mention the murder; however, it bears upon the matter in controversy. The Court of Criminal Appeals was correct when it stated that there was no error when the State introduced part of the conversation, because the trial court properly allowed Drinkard to introduce the remainder of the conversation. However, Drinkard also argues that the trial court improperly allowed the State to introduce extrinsic evidence of prior bad acts on his part. "Evidence of other and distinct crimes is as a general rule not admissible." Vincent v. State, 231 Ala. 657, 660, 165 So. 844, 846 (1936). Ex parte Arthur, 472 So. 2d 665, 668 (Ala.1985)(quoting Charles W. Gamble, McElroy's Alabama Evidence, § 69.01(1) (3d ed. 1977)). Stallworth v. State, 662 So. 2d 1222, 1224 (Ala.Crim.App.1995)(quoting earlier cases). In this case, none of these exceptions applies. The evidence concerning Drinkard's alleged involvement with the stolen property in Robinson and Segar's home is completely collateral to the crime with which he was charged. The only argument made in favor of the introduction of evidence concerning Drinkard's connection to the stolen property in Robinson and Segar's home was that Drinkard had opened the door with his cross-examination of Robinson. In upholding the trial court's ruling on this issue, the Court of Criminal Appeals relied on its opinion in Walker v. State, 631 So. 2d 294 (Ala.Crim.App.1993). The Court of Criminal Appeals' reliance on Walker is misplaced. In Walker, the defendant successfully objected to the prosecutor's asking questions or presenting evidence about the defendant's gang membership. Thereafter, the defense repeatedly brought up the subject of the defendant's gang membership. When the prosecution pursued the subject, the defense objected; the trial court polled the jurors to ascertain if they could put the improper comments out of their minds. When the defendant raised the issue on appeal, the Court of Criminal Appeals held: Walker v. State, 631 So. 2d at 301. Drinkard did not improperly inject the issue of his prior offense into the trial. Drinkard elicited the remainder of the conversation he had with Robinson. The Court of Criminal Appeals recognized that nothing should prevent Drinkard from introducing the remainder of that conversation. 777 So. 2d at 279-80. Therefore, Drinkard did not inject the issue of his involvement in the theft or even the theft itself into the trial. He injected, properly, his portion of a conversation where he referred to stolen property at Beverly Robinson's home, in his answer given to reassure her that Rex had probably not been arrested for the murder of Pace. The Court of Criminal Appeals also cited Stallworth v. State, 662 So. 2d 1222, 1224 (Ala.Crim.App.1995) (where the evidence was relevant to identity, as well as plan, scheme, or system), and Sistrunk v. State, 630 So. 2d 147 (Ala.Crim.App.1993) (where the evidence was admissible to explain away an adverse inference created by the cross-examination of a prosecution witness), to support the proposition that evidence of Drinkard's prior bad acts was properly admitted. However, Stallworth is inapplicable, because the fact that Drinkard told Beverly when Fayard would not be at home so that she and Rex could burglarize Fayard's home does not show a scheme or plan being used to prove identity, where the victim, Pace, was robbed and murdered while he was at home. Sistrunk is likewise inapplicable, because no adverse *302 inference was raised by Drinkard's cross-examination of Robinson. Further, even if Drinkard had raised the issue, there are several reasons why the State could not use the evidence. First, the testimony elicited by Drinkard was limited to what was said in a specific conversation. This testimony "opens the door" for the State to elicit the remainder of that particular conversation. See Logan v. State, 291 Ala. 497, 502, 282 So. 2d 898, 903 (1973) ("when the defendant, on cross-examination of a witness[,] elicits part of a conversation, the State may in rebuttal show the entire conversation"); Whitley v. State, 607 So. 2d 354, 360 (Ala. Crim.App.1992) ("The state, however, is limited to introducing `only so much of the remainder of the statement or conversation... as relates to the subject-matter of the part brought out by the [defendant].'"). Testimony about a particular conversation, however, does not grant the State free rein to go outside the conversation and bring in extrinsic evidence. "By its very terms, the doctrine of completeness relates only to matters contained in a single conversation." Dawson v. State, 675 So. 2d 897, 905 (Ala.Crim.App.1995) (opinion on application for rehearing). Second, the State was not rebutting anything brought out by Drinkard on cross-examination. Drinkard did not elicit evidence indicating that he had never been involved in the burglary or that he had never burglarized a home. He simply inquired further into a conversation that the State had introduced. Third, the State was not attempting to explain any adverse inferences raised by the cross-examination. The State was not trying to disprove that portion of the conversation. Defense counsel's question to Robinson dealing with her conversation with Drinkard about Segars did not raise any adverse inference as to Robinson's direct testimony. Had the State itself introduced the entire conversation between Robinson and Drinkard, including Drinkard's statements about the stolen property at Robinson's house, the State could not have then explained Drinkard's knowledge of the stolen property through evidence indicating his involvement in a prior theft. The State introduced part of the conversation. Drinkard was entitled to elicit the remainder of the conversation. He did not improperly inject into the trial the issue regarding the burglary. Therefore, the trial court erred when it allowed the State to examine Robinson concerning Drinkard's prior offenses. This Court has held that the exclusionary rule prevents the State from using evidence of a defendant's prior bad acts to prove the defendant's bad character and, thereby, protects the defendant's right to a fair trial. See Ex parte Cofer, 440 So. 2d 1121, 1123 (Ala.1983). Ex parte Cofer, 440 So. 2d at 1124. See also Ex parte Lacy, 639 So. 2d 951 (Ala. 1993); Ex parte Smith, 581 So. 2d 531, 534 (Ala.1991); Ex parte Arthur, 472 So. 2d 665 (Ala.1985); Dozier v. State, 596 So. 2d 49 (Ala.Crim.App.1991). The prejudicial effect of the evidence offered by the State, evidence indicating that Drinkard had participated in a burglary with Robinson and Segars, requires that Drinkard's conviction be reversed and this case remanded for a new trial. Although we reverse for the reasons stated above, we address the following additional issues because they will probably come up again on a new trial: (A) Was the grand-jury foreperson chosen in a racially discriminatory manner? (B) Should this *303 Court overrule its decision in Ex parte Stewart, 730 So. 2d 1246 (Ala.1999)? (C) Did the state improperly strike jurors on the basis of race and gender? Drinkard was indicted by a Morgan County grand jury. He claims that the manner by which the grand-jury foreperson in his case was selected violates the Equal Protection Clause of the Fourteenth Amendment and his due-process rights guaranteed by the United States Constitution; the Alabama Constitution; and other Alabama law. We address this issue because it remains justiciable with respect to the indictment by which Drinkard was charged. Although Drinkard is white, he has standing to challenge the alleged discriminatory exclusion of blacks from a grand jury, on the basis of equal-protection guarantees. The United States Supreme Court has held recently that a white defendant "has standing to raise an equal protection challenge to discrimination against black persons in the selection of his grand jury." Campbell v. Louisiana, 523 U.S. 392, 118 S. Ct. 1419, 1424, 140 L. Ed. 2d 551 (1998). In Campbell, however, the Supreme Court did not hold that a defendant has standing to raise an equal-protection issue by a challenge to the selection of the grand-jury foreperson. Campbell, 523 U.S. at 397-403, 118 S. Ct. at 1423-25. Because we hold that the method of selecting grand-jury forepersons in Morgan County is not discriminatory, we need not today determine if a white defendant has standing to raise an equal-protection challenge. The State argues that this Court has previously held that the method of selecting grand-jury forepersons in Morgan County was not discriminatory. See Pace v. State, 714 So. 2d 332 (Ala.1997). Drinkard argues that our holding in Pace merely dealt with the application of the plain-error doctrine to the issue. In Pace, this Court held that there had been a history of discrimination in the selection of grand-jury forepersons in Morgan County, but it did not reverse the Court of Criminal Appeals' affirmance of the defendant's conviction, because the defendant had not properly preserved the issue for appeal. We held that the discrimination did not rise to the level of plain error. Drinkard objected to the manner by which the foreperson of the grand jury that returned the indictment against him was selected. Therefore, the plain-error analysis of Pace does not apply here. We must still answer the question whether the manner by which the grand-jury foreperson was selected was discriminatory, using the criteria applied by the United States Supreme Court in Rose v. Mitchell, 443 U.S. 545, 565, 99 S. Ct. 2993, 61 L. Ed. 2d 739 (1979). The United States Supreme Court in Rose set forth three criteria for determining if the defendant has made a prima facie showing that the manner of selecting a grand-jury foreperson is racially discriminatory: Rose v. Mitchell, 443 U.S. at 565, 99 S. Ct. 2993 (quoting Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977)). First, it has been long established that African-Americans make up a recognizable, *304 distinct class. Second, we must analyze the history of discrimination. Before our holding in Pace, there had never been a black grand-jury foreperson in Morgan County. Drinkard was tried in 1995, the same year this Court, in Pace, addressed Morgan County's method of selecting grand-jury forepersons; this means that at the time of Drinkard's indictment there was no record indicating any black had ever served as grand-jury foreperson in Morgan County. Because 10% of the population in Morgan County is black, before 1997 there was a marked degree of underrepresentation. However, the third criterion is whether the selection method is "susceptible of abuse or is not racially neutral." Morgan County has recently changed its method of selecting grand-jury forepersons. Before 1993, the trial court appointed grand-jury forepersons, based on the recommendation of the prosecutor. Since that time, grand-jury forepersons have been selected by the members of the grand jury itself. As we noted in Pace, the "new procedure [in which the grand-jury members themselves choose the grand-jury foreperson] should limit any appearance of discrimination in the judicial process." 714 So. 2d at 338, n. 6. Allowing the grand jury the freedom to choose its own foreman forecloses a question of discrimination in the judicial process. However, even if we assumed that such discrimination did occur, we would hold, as the United States Supreme Court did in Hobby v. United States, 468 U.S. 339, 346, 104 S. Ct. 3093, 82 L. Ed. 2d 260 (1984), that because of the ministerial function of grand-jury forepersons in Alabama, there is no invasion of the "the distinctive interests of the defendant protected by the Due Process Clause." In Hobby, the United States Supreme Court proceeded on the assumption that discrimination had occurred in the selection of the grand-jury foreperson. Today, we use the Supreme Court's analysis to determine if Drinkard's indictment should be dismissed. When determining if such discrimination requires the dismissal of an indictment, the Supreme Court in Hobby looked at two factors: First, was the grand jury itself properly constituted? Second, did the grand-jury foreperson have more than a ministerial function in the grand-jury process? The Court in Hobby looked at the constitution of the grand jury itself because "[t]he due process concern that no `large and identifiable segment of the community [be] excluded from jury service,' Peters v. Kiff, 407 U.S. [493], at 503, 92 S. Ct. 2163, 33 L. Ed. 2d 83 [(1972)], does not arise when the alleged discrimination pertains only to the selection of a foreman from among the members of a properly constituted federal grand jury." 468 U.S. at 345, 104 S. Ct. 3093. Drinkard has not shown that the grand jury itself was improperly constituted. Indeed, the record indicates that of the 18 grand-jury members, 2 were black, and that blacks make up only 10% of the population in Morgan County. Therefore, the grand jury itself was an appropriate representation of the community as a whole and was properly constituted. Second, the Supreme Court in Hobby held that, given the ministerial role of a federal grand-jury foreman, "discrimination in the selection of one person from among the members of a properly constituted grand jury can have little, if indeed any, appreciable effect upon the defendant's due process right to fundamental fairness." 468 U.S. at 345, 104 S. Ct. 3093. The United States Supreme Court distinguished the role of the federal grand-jury foreman, as discussed in Hobby, from the role of a Tennessee grand-jury foreman, as discussed in Rose v. Mitchell, supra: Hobby, 468 U.S. at 348, 104 S. Ct. 3093. This Court in Pace examined the role of the grand-jury foreperson that was discussed in Rose v. Mitchell and compared that to the role of the grand-jury foreperson in Alabama: Pace, 714 So. 2d at 338. This Court concluded in Pace that "[i]n this state, the function of a grand jury foreperson is almost entirely ministerial in nature, very similar to that of a federal grand jury foreperson." 714 So. 2d at 336. Because the grand jury itself was properly constituted and the grand-jury foreperson in Alabama performs a ministerial function similar to that of the foreperson in the federal court, we conclude that the grand jury in Drinkard's case was not tainted to the point that Drinkard's due-process rights were infringed. Drinkard contends that the trial court erred by allowing the jury to separate, over the objections of both the defense and the prosecution. The Court of Criminal Appeals correctly stated in its opinion that this Court had recently addressed that issue and had decided it in a way that was adverse to Drinkard. We addressed the issue in Ex parte Stewart, 730 So. 2d 1246 (Ala.1999), where we held that a trial court may allow the jury to separate over defense counsel's objections. Drinkard asks us to reconsider our holding in that case. Stewart provided the correct interpretation of the interplay between this Court's rules, "general act[s] of state-wide application," and the Alabama constitution. See Ala. Const.Amend. 328, § 6.11. Drinkard claims that the State struck prospective jurors based on gender and race. He relied on the fact that the State peremptorily struck four of six black veniremembers and struck six females. Drinkard, however, objected only to two of the six strikes of females, and the trial court held that he had made no prima facie showing of discrimination based on gender. The trial court acknowledged that the strikes against the four black veniremen *306 "supplied an inference of discrimination." See Drinkard v. State, 777 So. 2d at 261. The prosecution then provided its explanations for the strikes. As to three of the struck jurors, Mr. L., Ms. S., and Ms. T., the prosecution stated valid race-neutral reasons that were discussed during voir dire.[2] These three jurors had either expressed doubt about their ability to impose the death penalty or had relatives that had been murder victims. However, the prosecution's reason for striking the fourth juror, Mr. T.his involvement with law enforcement and his position as a radio talk-show hostis unsubstantiated by the record. We have said repeatedly that "the failure of the State to engage in any meaningful voir dire on a subject of alleged concern is evidence that the explanation is a sham and a pretext for discrimination." Ex parte Bird, 594 So. 2d 676, 683 (Ala.1991), citing Ex parte Branch, 526 So. 2d 609 (Ala.1987). "The trial judge cannot merely accept the specific reasons given by the prosecutor at face value...." Ex parte Branch, 526 So. 2d at 624. While we understand that the publicity surrounding Mr. T. and his involvement with the Decatur police might be common knowledge, to allow a peremptory strike on that basis would encourage the use of presumption instead of documentation to support the prosecutor's reasons for striking a juror. If Mr. T's activities cause the prosecutor to have concerns about his ability to be fair, then "a simple question directed to the veniremember could have dispelled any doubt" about his ability to hear the case fairly. Ex parte Bird, 594 So. 2d at 683. However, the State referred to an answer given by Mr. T., which the prosecutor believed indicated that Mr. T. would hold the testimony of the police officers to a tougher standard. The trial judge agreed that the State had given a race-neutral reason. We can reverse a trial court's determination on a Batson issue only if it is "clearly erroneous"; therefore, we cannot hold that there was a Batson violation in this instance. Ex parte Branch, 526 So. 2d at 625. We address the issue to make clear the point we made in Ex parte Branch: 526 So. 2d at 624 (citations omitted). The introduction of evidence concerning Drinkard's involvement with an unrelated theft was unduly prejudicial and constituted reversible error. The method of selecting a grand-jury foreperson was not constitutionally improper, and the indictment by which Drinkard was charged is valid. Therefore, the Court of Criminal Appeals ruled correctly in regard to the method of selecting a grand-jury foreperson and correctly ruled that the indictment was valid. Because of the improper introduction of evidence, we reverse the Court of Criminal Appeals' judgment affirming Drinkard's conviction and sentence. The cause is remanded for proceedings consistent with this opinion. *307 OPINION OF NOVEMBER 19, 1999, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED. MADDOX, HOUSTON, and SEE, JJ., concur. JOHNSTONE, J., concurs specially. COOK, J., concurs in part. LYONS, J., concurs in the result. BROWN, J., recuses herself.[*] JOHNSTONE, Justice (concurring specially). I concur, with the one reservation that a venireperson's having a relative who had been a murder victim would not seem to be a race-neutral reason for the State to strike that venireperson, as the main opinion seems to hold in Part II. C. A venireperson's revealing the murder of a relative might prompt the State to ask follow-up questions which might, in turn, reveal a race-neutral reason for a peremptory strike, such as some emotional or spiritual reaction by the venireperson or some disappointment directed against the police or prosecutors; but, in the case before us, the State apparently did not conduct such a follow-up inquiry or base its peremptory strikes on such follow-up information. COOK, Justice (concurring in part). I agree that Drinkard's conviction is due to be reversed because evidence of his past bad acts was improperly admitted. Thus, I concur in Part I. I express no opinion on the matters addressed in Part II. [1] 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). [2] In discussing Mr. L., the prosecutor first stated that he believed Mr. L.'s answer to a question about criminal charges was untruthful, "according to a police officer." Absent further information or "meaningful voir dire" on the subject, this reason alone would be insufficient to overcome a presumption of discrimination. See Ex parte Branch, 526 So. 2d 609, 623 (Ala.1987); Bush v. State, 615 So. 2d 137, 140 (Ala.Crim.App.1992); Walker v. State, 611 So. 2d 1133, 1140 (Ala.Crim.App. 1992) ("A prosecutor cannot simply presume, without further questioning to `dispel any doubt,' that a veniremember, who is under oath, did not answer a question truthfully merely because the prosecutor has hearsay evidence to the contrary."). [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

April 21, 2000

d9cc3ee4-b0f4-4a9d-90a2-3ce001defa43

Ex Parte Gulf States Steel, Inc.

772 So. 2d 1122

1981872

Alabama

Alabama Supreme Court

772 So. 2d 1122 (2000) Ex parte GULF STATES STEEL, INC. (Re Gulf States Steel, Inc. v. David F. Smith.) 1981872. Supreme Court of Alabama. April 21, 2000. *1123 James W. McGlaughn of Inzer, Haney, Johnson & McWhorter, Gadsden, for appellant. Leon Garmon, Gadsden, for appellee. COOK, Justice. The Etowah Circuit Court awarded David F. Smith workers' compensation benefits against his employer, Gulf States Steel, Inc. The employer appealed. The Court of Civil Appeals, on January 29, 1999, affirmed, without opinion. Gulf States Steel, Inc. v. Smith, (No. 2970915) ___ So.2d ___ (Ala.Civ.App.1999) (table). We granted the employer's petition for certiorari review. Gulf States raised two issues in its petition: (1) whether the circuit court erroneously considered injuries Smith suffered after he had incurred the original work-related injury, and (2) whether the circuit court erroneously awarded fees for nonauthorized medical treatment. We granted the petition solely to consider the issue whether the circuit court erroneously ordered Gulf States to pay unauthorized medical bills. The unauthorized medical bills in question are in two sets, one dating from February 8, 1993, through October 15, 1997, and the other dating from February 15, 1993, through November 24, 1997. The first set of bills encompasses charges related to a vocational evaluation performed by Dr. Jack Bentley, charges totaling $1,350. The second set of bills includes charges for pain-management psychotherapy sessions Smith had with Dr. Bentley, charges totaling $5,490. The portion of the circuit court's order at issue reads: "The Court GRANTS Plaintiff's motion to tax as part of court costs Dr. Jack Bentley's bill for $6,765.00. See Ex parte St. Regis Corporation, 535 So. 2d 160 (Ala.[1988]) Ala *1124 Code § 25-5-90. The Defendant is responsible for Dr. Jack Bentley's bill." Gulf States argues that it had no notice of Smith's psychotherapy sessions, and, therefore, should not be liable for paying Dr. Bentley's bill. Generally, an employer is not required to pay for medical treatment obtained by the employee without justification or notice to the employer. An employer may be required to pay for unauthorized medical services "`(1) [w]here the employer has neglected or refused to provide the necessary medical care; (2)[w]here the employer has consented to the selection by the employee; (3)[w]here notice of and request for alternative care would be futile; and (4)[w]here other circumstances exist which justify the selection of alternative care by the employee.'" Ex parte Grantham, 514 So. 2d 1385, 1387 (Ala.1987). (Quoting United States v. Bear Bros., Inc., 355 So. 2d 1133, 1138 n. 2 (Ala.Civ.App.1978)). Appellate review of a workers' compensation case is set out in § 25-5-81(e), 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.'" Ex parte Fryfogle, 742 So. 2d 1258, 1260 (Ala.1999)(quoting West v. Founders Life Assurance Co., 547 So. 2d 870, 871 (Ala. 1989)). The record contains no evidence indicating that Smith ever notified Gulf States that he was having psychotherapy sessions with Dr. Bentley. Smith presented no evidence to indicate that Gulf States would have denied authorization for pain-management psychotherapy sessions related to his original on-the-job injury. Therefore, Smith failed to show that any of the exceptions to the notice requirement apply to his case. The circuit court erred in holding Gulf States responsible for Dr. Bentley's bill for the psychotherapy sessions in the amount of $5,490. However, Dr. Bentley's bill for the vocational evaluation requires a different analysis. Under § 25-5-89, "`[t]axing of costs [in a workers' compensation case] is a matter within the trial court's discretion.'" Ex parte Ellenburg, 627 So. 2d 398, 400 (Ala.1993) (quoting Universal Forest Prods. v. Ellenburg, 627 So. 2d 395, 397 (Ala.Civ.App.1992)). The trial court's discretion is subject to Rule 54(d), Ala. R. Civ. P, which states: "Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs...." The circuit court taxed the fees of Dr. Bentley, as an expert witness, against Gulf States; this assessment was to the benefit of the prevailing party. Gulf States has failed to demonstrate that the circuit court abused its discretion by awarding as costs Dr. Bentley's fees as a vocational expert. To the extent it affirmed that portion of the circuit court's judgment ordering Gulf States to pay Dr. Bentley's fees for providing psychotherapy sessions, the judgment of the Court of Civil Appeals is reversed. To the extent it affirmed that portion of the circuit court's judgment ordering Gulf States to pay Dr. Bentley's fees as a vocational expert, the judgment of the Court of Civil Appeals is affirmed. This case is remanded for the entry of a judgment consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. *1125 HOOPER, C.J., and MADDOX, HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.

April 21, 2000

88ab47b8-e6a8-48bc-8d8a-cfb8eebd9ebf

Ex Parte Rite Aid of Alabama, Inc.

768 So. 2d 960

1981998

Alabama

Alabama Supreme Court

768 So. 2d 960 (2000) Ex parte RITE AID OF ALABAMA, INC. (In re Jon H. Deal and Charlotte D. Newman, as executors of the estate of Jewell D. Deal, deceased v. Rite Aid of Alabama, Inc.) 1981998. Supreme Court of Alabama. April 7, 2000. T. Kent Garrett and William H. Webster of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for petitioner. *961 Jere L. Beasley and Julia A. Beasley of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for respondents. LYONS, Justice. Rite Aid of Alabama, Inc. ("Rite Aid"), a corporation that operates pharmacies across Alabama, is a defendant in a wrongful-death action pending in the Montgomery Circuit Court. The plaintiffs in that action are Jon H. Deal and Charlotte D. Newman, executors of the estate of Jewell D. Deal, deceased. Rite Aid petitions for a writ of mandamus directing Judge Sarah M. Greenhaw to vacate her order directing Rite Aid to answer discovery requests presented by the plaintiffs concerning evidence of other incidents or acts related to the incident or act that is the basis of the pending wrongful-death action. We grant the petition. The plaintiffs allege that Rite Aid wrongfully caused the death of Jewel D. Deal by negligently filling for her a prescription that called for 50-milligram tablets of the drug Lopressor. The plaintiffs allege that Rite Aid's pharmacy gave Mrs. Deal 100-milligram tablets. The plaintiffs also allege that Rite Aid had negligently trained and supervised the pharmacist who improperly filled Mrs. Deal's prescription. Through the discovery process, the plaintiffs requested information concerning "other incidents" involving injuries to Rite Aid customers resulting from incorrectly filled prescriptions. Rite Aid objected to the requests, asserting that it was within the definition of "health care provider" appearing at § 6-5-542(1), Ala.Code 1975a portion of the Alabama Medical Liability Act ("AMLA")and, therefore, that the plaintiffs were "prohibited from conducting discovery with regard to any other act or omission," by § 6-5-551. The plaintiffs moved to compel discovery and served on Rite Aid interrogatories and a request for production, to which interrogatories and request Rite Aid objected. The trial court granted the plaintiffs' motion to compel production; Rite Aid then filed a "Motion for Hearing for Purposes of Reconsidering Order Compelling Discovery," a motion for a protective order, and a brief in support of the motion for a protective order. After conducting a hearing on the issue, the trial court determined that Rite Aid, as the operator of a pharmacy, did not fall within the term "other health care providers," as that term is defined in § 6-5-481(8), Ala.Code 1975, and, thus, that Rite Aid was not entitled to the § 6-5-551 protections against discovery of "any other act or omission." The sole issue before us is whether the operator of a pharmacy is an "other health care provider" within the meaning of § 6-5-481(8), a portion of the AMLA, and, therefore, entitled to the protections afforded by the AMLA's prohibitions against discovery of evidence of "other act[s] or omission[s]." 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). A mandamus petition is the proper means of reviewing whether the trial court abused its discretion in discovery matters. Ex parte Alabama Dep't of Human Resources, 719 So. 2d 194 (Ala.1998). We have recently considered whether a pharmacist is a health-care provider under the AMLA. Cackowski v. Wal-Mart Stores, Inc., 767 So. 2d 319 (Ala.2000). In that case, the plaintiffs alleged that a pharmacist employed at a pharmacy operated by Wal-Mart Stores had negligently filled the plaintiffs prescription with the wrong medication. This Court wrote: 767 So. 2d at 324-25 (emphasis added). Therefore, based on the rationale of Cackowski, we hold that Rite Aid, as the operator of a pharmacy, is included within the AMLA's definition of "other health care providers" and, therefore, is entitled to have evidence of other acts or omissions excluded, by the terms of § 6-5-551, Ala. Code 1975. Thus, we grant Rite Aid's petition for the writ of mandamus and direct Judge Greenhaw to vacate her order of July 27, 1999, directing Rite Aid to produce evidence concerning "other incidents." PETITION GRANTED; WRIT ISSUED. HOOPER, C.J., and MADDOX, HOUSTON, SEE, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., dissents. JOHNSTONE, Justice (dissenting). Mrs. Deal's executors originally sued Rite Aid for incorrectly filling Mrs. Deal's prescription and thereby wrongfully causing her death. The executors then amended the complaint to add the theory that Rite Aid had negligently trained or negligently failed to train the pharmacist who filled Mrs. Deal's prescription and that this negligence had proximately caused Mrs. Deal's death. The original complaint contains the following allegations: The executors sought, and the trial court ordered, discovery of similar incidents of Rite Aid's incorrectly filling prescriptions. Rite Aid seeks a writ of mandamus directing the trial court to vacate its discovery order in this regard, and this Court grants the writ on the rationale that the plaintiffs' action against Rite Aid is governed by the Alabama Medical Liability Act under the authority of the recently decided case of Cackowski v. Wal-Mart Stores, Inc., 767 So. 2d 319 (Ala.2000), and therefore that this discovery issue is governed by § 6-5-551, Ala.Code 1975. Section 6-5-551, by its own terms, prohibits discovery or proof of any act or omission by a health-care-provider defendant that is not specifically pleaded in a plaintiff's complaint as an integral part of the plaintiff's theory of liability against the defendant. The case before us is controlled by Ex parte McCollough, 747 So.2d *963 887 (Ala.1999), which expressly required the trial court to enforce discovery of other acts or omissions by a medical provider sued on, among other theories, a theory of negligent hiring, training, or staffing: 747 So. 2d at 890. The case now before us seems even stronger than McCollough for the plaintiffs' right to discover other acts or omissions inasmuch as the plaintiffs before us have expressly pleaded other acts or omissions in their complaint. Proper training of a pharmacist would necessarily entail teaching him or her to avoid or to recognize and to rectify mistakes; and proof of negligent or nonexistent training would properly include proof of mistakes made by the pharmacist or allowed by the system. Even the dissent in McCollough recognizes that other acts or omissions, adequately pleaded, are both discoverable and provable: 747 So. 2d at 893 (Lyons, J., dissenting). Even if the pleadings in the case before us do not meet the standard of § 6-5-551 and the dissent in McCollough, nonetheless, the majority opinion in McCollough negates any "clear legal right" in Rite Aid to a writ of mandamus requiring the trial court to vacate its order for discovery of the other acts and omissions by Rite Aid.

April 7, 2000

d6b2814e-ba5d-4ff5-a1ba-5cc3c6e80112

Ex Parte Presley

770 So. 2d 114

1990390

Alabama

Alabama Supreme Court

770 So. 2d 114 (2000) Ex parte Marcus PRESLEY. (Re Marcus Presley v. State.) 1990390. Supreme Court of Alabama. March 31, 2000. F.W. Neumann III, Birmingham, for petitioner. Bill Pryor, atty. gen., and A. Vernon Barnett IV, asst. atty. gen., for respondent. BROWN, Justice. Marcus Presley was convicted of capital murder for the killing of Marvin Smith. The murder was made capital because it was committed during a robbery in the first degree or an attempt thereof. See § 13A-5-40(a)(2), Ala.Code 1975. The jury unanimously recommended that Presley be sentenced to death. The trial court accepted the jury's recommendation and sentenced Presley to death. The Court of Criminal Appeals affirmed both the conviction and the death sentence. See Presley v. State, 770 So. 2d 104 (Ala.Crim.App. 1999). Presley filed a petition for a writ of certiorari, which we granted pursuant to Rule 39(c), Ala.R.App.P. We have carefully read and considered the briefs and the arguments of counsel. In addition, we have searched the record for any plain error, as required by Rule 39(k), Ala.R.App.P. We have found no error in either the guilt phase or the sentencing phase of the trial that adversely affected Presley's rights. Furthermore, we conclude that the trial court's findings concerning the aggravating and mitigating circumstances were supported by the evidence and that death was the proper sentence 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 affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, COOK, SEE, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. HOUSTON, J., concurs specially. *115 HOUSTON, Justice (concurring specially). Marcus Presley was 16 years old at the time of the offense. See my special writings of January 28, 2000, in Ex parte Pressley,[1] 770 So. 2d 143, 150 (Ala.2000), and Ex parte Burgess, [Ms. 1980810, January 28, 2000] ___ So.2d ___ (Ala.2000). [1] Although the case now before us carries the spelling Presley, the case before us on January 28, 2000, carried the spelling Pressley. These two cases apparently, however, involve the same defendant.

March 31, 2000

5b8b8429-b685-463c-af37-6eadeed6dc6a

Ex Parte Bowater, Inc.

772 So. 2d 1181

1981708

Alabama

Alabama Supreme Court

772 So. 2d 1181 (2000) Ex parte BOWATER, INC. (In re Patrick Maze v. Bowater, Inc.) 1981708. Supreme Court of Alabama. April 21, 2000. Elizabeth Golson McGlaughn and Robert D. McWhorter, Jr., of Inzer, Haney, Johnson & McWhorter, P.A., Gadsden, for petitioner. Jeffery W. McKinney of Siniard, McKinney & Braswell, P.C., Huntsville, for respondent. HOUSTON, Justice. Patrick Maze filed a complaint on March 16, 1998, in the Marshall County Circuit Court against his employer, Bowater, Inc., to recover workers' compensation benefits based on an on-the-job injury. Maze's injury occurred on February 4, 1998, when he placed his left hand into a running conveyor system to dislodge a piece of wood that had jammed the system. When he dislodged the wood, the conveyor system immediately began moving; Maze's hand was pinched between the wood and the top of the conveyor housing and was severely injured. Bowater asserted the *1182 affirmative defense of willful misconduct by Maze. The parties submitted the issue of liability to the trial court on the depositions, affidavits, and evidentiary exhibits. The trial court entered a judgment for Bowater, finding that willful misconduct on the part of Maze was the cause of the injury.[1] Maze appealed. In a split decision, the Court of Civil Appeals reversed, holding that the trial court's finding was not based on substantial evidence. Maze v. Bowater, Inc., 772 So. 2d 1178 (Ala.Civ.App.1999). Judges Crawley and Thompson dissented. We granted certiorari review to determine whether the finding of willful misconduct by Maze was supported by substantial evidence. The trial court's findings of fact must be upheld if they are supported by substantial evidence. Ala.Code 1975, § 25-5-81(e)(2). "[S]ubstantial 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 (Ala.1989). Our standard of review requires that we view the record in the light most favorable to Bowater because Bowater prevailed in the trial court. Reynolds Metals Co. v. Gray, 278 Ala. 309, 178 So. 2d 87 (1965). At the time of Maze's injury, Bowater had a safety rule known as the "lockout procedure." The lock-out procedure required every employee, before doing any kind of maintenance or placing any body part inside a machine, to turn off the machine and lock it with a padlock so that it could not begin moving or operating. Bowater issued each employee, including Maze, a padlock for this stated purpose. Employees were given a copy of the employees' handbook, which contained a description of the lock-out procedure. Employees were disciplined for not following the lock-out procedure. The employees, including Maze, were told that the lock-out procedure was important and was a mandatory part of the company's safety program. They were told that they could lose their jobs for not following the lock-out procedure. On September 22, 1997, at a weekly safety meeting, Maze was told that he was required to lock out every machine, including conveyors. On November 25, 1997, Maze attended a safety meeting at which the details of the lock-out procedure were explained. This meeting included revisions and updates to the safety procedure. This explanation included the use of videos, overhead displays, a lecture, and a group discussion. The revisions were made after a committee, of which Maze was a member, recommended an update of the lock-out procedure. As part of this committee, and because Maze was a machine operator, he was consulted for suggestions regarding the revisions to the lock-out procedure. On January 5, 1998, within a month of Maze's injury, he was told at the weekly safety meeting to lock out the machines. Maze admitted that he knew, at the time of his injury, that the *1183 safety rules required him to lock out the conveyor before attempting to remove the lodged piece of wood. His deposition testimony, cited in Judge Crawley's dissent, 772 So. 2d at 1180, makes it clear that Maze willfully disobeyed a mandatory safety rule: The evidence was undisputed that if the conveyor had been "locked out" Maze's injury would not have occurred. Willful misconduct bars an injured employee from recovering under the Workers' Compensation Act. "[N]o compensation shall be allowed for an injury... caused by the willful misconduct of the employee, ... [or caused by the employee's] willful failure or willful refusal to use safety appliances provided by the employer." Ala.Code 1975, § 25-5-51. Fairminded and impartial persons could reasonably conclude from the evidence that Maze's misconduct was willful and therefore barred his recovery under the Workers' Compensation Act. The judgment of the Court of Civil Appeals is reversed, and the case is remanded. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., concurs in the result. [1] The court wrote: "Upon review of the file the court finds that by agreement noted on the case action summary dated 8/18/98 the matter was submitted on depositions, affidavits and briefs on the sole issue of the defendant's affirmative defense of plaintiff's willful misconduct. Plaintiff was injured when he reached into a conveyor to fix a jam, without stopping and `locking out' the machinery. He clearly knew of the safety rule propounded by the company: `1. If equipment needs to be shut down and locked out, open all necessary switches and disconnects....' The `Lock Out Procedure' was detailed and comprehensive, but the plaintiff contends that the emphasized portions of the rule give[s] him discretion to determine if the equipment needs to be shut down. He said he didn't think he needed to do so, he didn't and was hurt. Such an interpretation stretches credulity beyond its bounds under all of the circumstances presented as to the plaintiff's experience and time in service and in light of the danger of the equipment involved. The court hereby finds this issue in favor of the defendant." (R. 4.) (Emphasis added by the trial court.)

April 21, 2000

d1dd40da-8048-4b27-b376-8fc61003f526

Ex Parte SWT

782 So. 2d 766

1980989

Alabama

Alabama Supreme Court

782 So. 2d 766 (2000) Ex parte S.W.T. (Re S.W.T. v. Cullman County Department of Human Resources). 1980989. Supreme Court of Alabama. March 31, 2000. G. Edward Coey, Hanceville, for petitioner. J. Coleman Campbell and Lynn S. Merrill, asst. attys. gen., Department of Human Resources, for respondent. SEE, Justice. The Cullman County Department of Human Resources petitioned the Cullman Juvenile Court to terminate S.W.T.'s parental rights as to her minor son. After a hearing, the juvenile court entered an order terminating those parental rights. S.W.T. appealed; the Court of Civil Appeals dismissed her appeal, holding that it was untimely. Because we conclude that S.W.T.'s appeal was timely, we reverse the Court of Civil Appeals' judgment of dismissal and remand the case for further proceedings. The final judgment of the juvenile court was entered on November 4, 1998. Pursuant to Rule 28(C), Ala. R. Juv. P., a party seeking to appeal from a final judgment in a juvenile proceeding must file a written notice of appeal within 14 days of the judgment. Therefore, under that Rule, S.W.T.'s notice of appeal should have been filed by November 18. On December 3, S.W.T. filed a motion in the juvenile court seeking "an enlargement of time in which to file a post-trial motion," asserting that "none of the attorneys were served with a copy of [the] court's order of November 4," and that her "counsel and counsel for DHR discovered this court's order in the *767 court file on December 3." See Rule 77(d), Ala. R. Civ. P.; Rule 1(A), Ala. R. Juv. P. On December 4, the trial court granted that motion, giving S.W.T. a seven-day extension. Also on December 4, S.W.T. filed a motion to alter, amend, or vacate the judgment. The trial court denied that motion on December 9, and S.W.T. filed a notice of appeal on December 11. Rule 77(d), Ala. R. Civ. P., provides: Rule 1(A), Ala. R. Juv. P., provides that "[i]f no procedure is specifically provided in [the Alabama Rules of Juvenile Procedure] or by statute, the Alabama Rules of Civil Procedure shall be applicable to the extent not inconsistent [with the Alabama Rules of Juvenile Procedure]." Because Rule 77(d), Ala. R. Civ. P., is not inconsistent with the Alabama Rules of Juvenile Procedure, it provides a procedure for extending the time for filing a notice of appeal in juvenile-court proceedings. Although S.W.T.'s motion stated that she was seeking "an enlargement of time in which to file a post-trial motion," the motion was, in substance, a motion pursuant to Rule 77(d) to extend the time for appeal. See, e.g., Evans v. Waddell, 689 So. 2d 23, 26 (Ala.1997) ("The substance of a motion and not its style determines what kind of motion it is."). DHR did not oppose S.W.T.'s motion. The trial court granted the motion, extending the time for appeal by seven days. The seven-day extension did not exceed the maximum extension allowed under Rule 77(d), Ala. R. Civ. P., because it did not extend the time for appeal by more than 30 days from the original date by which a notice of appeal had to be filed. DHR's failure to oppose the trial court's order extending the time for appeal precludes appellate review of the merits of that order. See, e.g., Gotlieb v. Collat, 567 So. 2d 1302, 1304 (Ala.1990) (holding that arguments presented for the first time on appeal cannot be considered). S.W.T. filed her notice of appeal within the time allowed by the trial court. Therefore, the Court of Civil Appeals erred by dismissing the appeal. Because the Court of Civil Appeals erred in holding that S.W.T.'s appeal was untimely, we reverse the order of that court dismissing the appeal, and we remand the case for further proceedings. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.

March 31, 2000

9effd249-9d7a-4c63-b885-b20487ec9c89

Bright v. State Farm Ins. Co.

767 So. 2d 1111

1980238

Alabama

Alabama Supreme Court

767 So. 2d 1111 (2000) Jesse BRIGHT v. STATE FARM INSURANCE COMPANY. 1980238. Supreme Court of Alabama. March 31, 2000. *1112 Charles R. Crowder and Annesley H. DeGaris of Cory, Watson, Crowder & De-Garis, P.C., Birmingham, for appellant. Daniel S. Wolter of Gaines, Wolter & Kinney, P.C., Birmingham, for appellee. PER CURIAM. This case involves "stacking" of underinsured motorist benefits. Jesse Bright brought a declaratory judgment action (CV-96-610), pursuant to § 6-6-220 et seq., Ala.Code 1975, against State Farm Insurance Company, seeking a declaration that he is entitled to stack underinsured motorist benefits from four single vehicle policies issued to Cope Systems, Inc. d/b/a/ Ace Pest Control and on a fleet policy issued to Guaranty Pest Control, all of which were issued by State Farm. Bright was injured in an automobile accident while he was driving a vehicle owned by Cope Systems, Inc. d/b/a/ Ace Pest Control. The Ace vehicle was struck by a City of Bessemer garbage truck. As a result of the accident, Bright was totally disabled. Bright then filed a second action (CV-97-150) seeking underinsured motorist benefits under the same State Farm policies that are the subject of the declaratory judgment action. State Farm filed a motion to consolidate; the circuit court did not enter a ruling on the motion. Both State Farm and Bright moved for summary judgment, entering a joint stipulation of fact in which it was agreed that at the time of the accident, Bright was an employee of Guaranty and on an assignment for Ace. The trial court entered a judgment, finding that Bright was not entitled to stack under the Ace policies or the Guaranty policies because he was not included within any of the categories defined as insureds except as an occupant of the vehicle covered by the policy which had already paid him. The trial judge's order stated in pertinent part: "I. ACE POLICIES "A Missouri appellate court facing this issue for the first time noted, McMurtry v. Aetna Casualty & Surety Company, 845 S.W.2d 700, 702-03 (Mo. App.1993). "This Court will follow the majority view and hold that employees are not named insureds when the corporation is named as the insured and finds that Plaintiff is not entitled to stack the Ace policies. "II. GUARANTY POLICY Bright filed notice of appeal from this judgment. On March 7, 1995, Bright was driving a 1993 Isuzu owned by Ace Pest Control when the vehicle was involved in an automobile accident with a City of Bessemer garbage truck. Bright ran a full time pest control route with Ace and acted as a "swingman" with Guaranty. At the time of the accident, an employee/employer relationship existed between Bright and Guaranty. At the time of the accident, Bright was performing an assignment for Ace. Ace and Guaranty had five policies of insurance issued by State Farm that were in effect on the date of the accident: State Farm paid Bright the $20,000 policy limits for underinsured motorist benefits on the first policy shown above, the 1993 Isuzu that he occupied when the accident occurred. Bright contends that under § 32-7-23(c), Ala.Code 1975, he is allowed to stack coverage under the policies issued to Ace and Guaranty. Section 32-7-23(c) provides as follows: The trial judge based his ruling disallowing stacking on the fact that Bright did not occupy any of the other vehicles. Since Bright was not a named insured, the trial judge reasoned that the only way he could fit the definition of "insured" was by his use or occupancy of an insured vehicle, and that Bright was not an occupant of any of the vehicles under which he seeks to stack coverage. Therefore, the trial judge determined that Bright is not entitled to stack those policies. Bright argues first that an ambiguity was created in the policies at issue, because the policies were issued to a corporation, but contained language referring to individuals. Other jurisdictions have interpreted such policy language and found the policy language to be clear, providing for uninsured and underinsured motorist coverage for occupants of the insured vehicles. Ott v. Firemen's Fund Ins. Co., 936 S.W.2d 165, 166 (Mo.App.1987). The record reflects that Bright is an injured permissive user of a corporately owned vehicle. The declarations page of all four insurance policies issued by State Farm to Ace Pest Control show "Cope Systems, Inc. d/b/a/ Act Pest Control" as the named insured. The policy issued by State Farm to Guaranty shows "Guaranty Pest Control, Inc." as the named insured. This Court has issued several decisions regarding the stacking of uninsured motorist benefits in various factual situations. Because Bright is not a named insured on any of the policies issued to Ace and is not a member of any of the categories of insureds stated by the policy except category 4 for the occupants of the particular insured vehicle, he becomes an insured only by his use or occupancy of an insured vehicle. Nationwide Mut. Ins. Co. v. United Services Auto. Ass'n, 359 So. 2d 380 (Ala.Civ.App.1977); State Farm Mut. Auto. Ins. Co. v. Faught, 558 So. 2d 921 (Ala.1990); Allstate Ins. Co. v. Alfa Mut. Ins. Co., 565 So. 2d 179 (Ala.1990). Here, Bright occupied the 1993 Isuzu and thus is covered under only that one Ace policy. As to the policy issued to Guaranty, there is no policy language that extends the named insured status to persons occupying borrowed vehicles. We agree with the trial court that American Ins. Co. v. Thompson, 643 So. 2d 1350 (Ala.1994), is distinguishable because of different policy language. Thus, the trial court did not err in holding that stacking was unavailable to Bright on the Guaranty policy and the Ace policies on vehicles he did not occupy. For the reasons stated above, the judgment of the trial court is due to be affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] Each policy defines "your car" as "the car or the vehicle described on the declarations page."

March 31, 2000

3bd452b6-06d7-47d2-9591-a58dfb3016d4

Universal Underwriters Ins. Co. v. Thompson

776 So. 2d 81

1982012

Alabama

Alabama Supreme Court

776 So. 2d 81 (2000) UNIVERSAL UNDERWRITERS INSURANCE COMPANY v. Robert THOMPSON. 1982012. Supreme Court of Alabama. June 30, 2000. Danny D. Henderson of Henderson & Butler, Huntsville, for appellant. Trey Riley, Huntsville, for appellee. *82 SEE, Justice. The plaintiff, Universal Underwriters Insurance Company ("Universal"), appeals from a judgment on the pleadings entered in favor of the defendant, Robert Thompson. We hold that the trial court erred in entering the judgment on the pleadings because the pleadings show that there are genuine issues of material fact. Therefore, we reverse and remand. The following facts are undisputed. On July 27, 1998, Thompson was an employee of Woody Anderson Ford, Inc. While working in the line and scope of his employment with Woody Anderson Ford, Thompson was injured while he was repairing the engine of an automobile owned by Woody Anderson Ford. The engine backfired, burning Thompson. Thompson recovered workers' compensation benefits as a result of the accident. Subsequently, Thompson made a demand for uninsured-motorist insurance benefits, under Woody Anderson Ford's garage-liability policy; the automobile on which Thompson was working was uninsured. Universal, the issuer of Woody Anderson Ford's garage-liability policy, filed a declaratory-judgment action against Thompson, asking for a judgment declaring that, under the policy, it did not owe him uninsured-motorist coverage. Universal attached a copy of the policy as part of the complaint. Thompson moved for a judgment on the pleadings. Universal opposed his motion, arguing, among other things, that the motion was premature because there had been no discovery and genuine issues of material fact precluded the entry of a judgment on the pleadings. Universal presented the affidavit of C.W. "Woody" Anderson, the president of Woody Anderson Ford, Inc., which states, in pertinent part: The trial court granted Thompson's motion. In its order, the trial court stated only, "No rejection having been instituted on the elective options form, the statutory minimum coverage applies to Robert Thompson." Universal appeals from that order. Rule 12(c), Ala. R. Civ. P., provides, When a motion for judgment on the pleadings is made by a party, "the trial court reviews the pleadings filed in the case and, if the pleadings show that no genuine issue of material fact is presented, the trial court will enter a judgment for the party entitled to a judgment according to the law." B.K.W. Enters., Inc. v. Tractor & Equip. Co., 603 So. 2d 989, 991 (Ala.1992). See also Deaton, Inc. v. Monroe, 762 So. 2d 840 (Ala.2000). A judgment on the pleadings is subject to a de novo review. Harden v. Ritter, 710 So. 2d 1254, 1255 (Ala. Civ.App.1997). A court reviewing a judgment on the pleadings accepts the facts stated in the complaint as true and views them in the light most favorable to the nonmoving party. Id. at 1255-56. If matters outside the pleadings are presented to and considered by the trial court, then the *83 motion for a judgment on the pleadings must be treated as a motion for a summary judgment. See Rule 12(c), Ala. R. Civ. P. Otherwise, in deciding a motion for a judgment on the pleadings, the trial court is bound by the pleadings. See Stockman v. Echlin, Inc., 604 So. 2d 393, 394 (Ala.1992). The trial court's consideration of the garage-liability policy did not require conversion of Thompson's motion for a judgment on the pleadings into a motion for a summary judgment, because the policy was made part of the complaint and because Thompson admitted the genuineness of the policy in his answer. See Wilson v. First Union Nat'l Bank of Georgia, 716 So. 2d 722, 726 (Ala.Civ.App.1998)(holding that the trial court's consideration of documents attached to the complaint, whose identity and authenticity were not in dispute, did not require conversion of a motion to dismiss into a motion for summary judgment). Likewise, the affidavit of Anderson did not require conversion of the motion for a judgment on the pleadings into a motion for a summary judgment, because the record is silent as to whether the trial court considered that affidavit. See Stockman, 604 So. 2d at 394. The trial court, in its order, did not indicate whether it considered Anderson's affidavit, and the record on appeal contains no transcript of the hearing on Thompson's motion. Because the record gives no indication that the trial court considered matters outside the pleadings, we treat the motion as a motion for a judgment on the pleadings. Accordingly, we look only to the pleadings in determining whether the trial court erred in granting Thompson's motion. Section 32-7-23, Ala.Code, 1975, provides: (Emphasis added.) This Court has construed this statute as requiring "[u]ninsured protection ... in all automobile liability policies unless rejected" by the named insured. State Farm Mut. Auto. Ins. Co. v. Martin, 292 Ala. 103, 105, 289 So. 2d 606, 608 (1974). To be legally effective, the named insured's rejection must be in writing. See Insurance Co. of North Am. v. Thomas, 337 So. 2d 365, 369 (Ala. Civ.App.1976). Whether the named insured has rejected uninsured-motorist coverage is a question of fact. See Martin, 292 Ala. at 105, 289 So. 2d at 607-08. The garage-liability policy issued by Universal to Woody Anderson Ford lists as named insureds the following: Woody Anderson Ford, Inc.; Charles W. Anderson; the Woody Anderson Ford, Inc., 401(k) plan; and C.W. Anderson and Cathy Anderson. Included as part of the policy is an "Elective Options Form." That form provides in pertinent part, Beneath this last paragraph, certain types of coverages are listed on separate lines: "GARAGE"; "BASIC AUTO"; "AUTO LESSORS LIABILITY"; "DAILY RENTAL"; and "DESIGNATED INDIVIDUALS." To the right of each of these lines, the form provides boxes to indicate rejection of uninsured- and underinsured-motorist coverage. The boxes appear in a column beneath the heading, "ALL COVERAGE IS REJECTED." None of the boxes on the form is marked. On blank lines underneath "DESIGNATED INDIVIDUALS" the following names are written: C.W. Anderson and Cathy Anderson, and Keith Harris and Cecilia Harris; and to the right of these names on a blank line beneath the heading "OTHER LIMITS (NOT TO EXCEED POLICY LIMITS)" the amount "500,000" is written. The form is signed by C.W. "Woody" Anderson, as president of Woody Anderson Ford. Universal claims that Woody Anderson Ford rejected uninsured motorist coverage on the form, except for those designated individuals for whom it requested uninsured-motorist coverage above the statutory minimum coverage. On the other hand, Thompson claims that Woody Anderson Ford failed to reject uninsured-motorist coverage provided by Universal's policy because none of the boxes were marked, and, thus, Thompson contends, the uninsured-motorist coverage applies to him as an employee of Woody Anderson Ford. The rules governing the construction of terms in a contract are well established. B๕Wing Office Sys., Inc. v. Johnson, 744 So. 2d 915, 918 (Ala.Civ.App.1999). After examining the "Elective Options Form," as completed, we conclude that it is ambiguous because it can be reasonably construed two different ways: it could mean that Woody Anderson Ford rejected uninsured-motorist *85 coverage except for the individuals specified, or it could mean that Woody Anderson Ford did not reject uninsured-motorist coverage but increased the amount of coverage for the specified individuals. Because the form is ambiguous, coverage is a question of fact. Accordingly, based on the pleadings, and accepting the facts stated in the complaint as true and viewing them in the light most favorable to Universal, we find a genuine issue of material fact as to whether Woody Anderson Ford, the named insured under Universal's policy, rejected uninsured-motorist coverage. The trial court cannot enter a judgment on the pleadings if the pleadings show a genuine issue of material fact. See B.K.W. Enters., 603 So. 2d at 991. Therefore, the trial court erred in entering a judgment on the pleadings. We reverse that judgment and remand the case for further proceedings consistent with this opinion.[1] REVERSED AND REMANDED. MADDOX, COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. HOOPER, C.J., and HOUSTON, J., concur in the result. HOUSTON, Justice (concurring in the result). I concur to reverse, because nothing in the record shows that Robert Thompson is legally entitled to recover from the owner (Thompson's employer) or an employee of the owner (Thompson's co-employee), given the exclusivity provisions of Ala.Code 1975, ง 25-5-11. [1] We do not decide the appropriateness of a motion for summary judgment. Moreover, we do not address whether Thompson's recovery of uninsured-motorist benefits from his employer's insurer is barred by the exclusivity provisions of Ala.Code 1975, ง 25-5-11. That argument was not raised below and cannot be raised for the first time on appeal. See Smith v. Equifax Servs., Inc., 537 So. 2d 463, 465 (Ala.1988) ("this Court will not reverse the trial court's judgment on a ground raised for the first time on appeal").

June 30, 2000

38d5e9c1-b8c4-4f78-80ad-309d53b08c20

Ex Parte Qureshi

768 So. 2d 374

1980160, 1980179

Alabama

Alabama Supreme Court

768 So. 2d 374 (2000) Ex parte Dr. F.H. QURESHI and Central Alabama Orthopedic. Ex parte Vaughan Regional Medical Center, Inc. and Ex parte Stacy Larrimore. (Re Stacy Larrimore v. Vaughan Regional Medical Center, Inc., et al.) 1980160 and 1980179. Supreme Court of Alabama. April 7, 2000. William S. Haynes and Rachel Sanders-Cochran of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for Dr. F.H. Qureshi and Central Alabama Orthopedic. Walter W. Bates and Scott M. Salter of Starnes & Atchison, L.L.P., Birmingham, for Vaughan Regional Medical Center, Inc. Vernon L. Wells II and N. Christian Glenos of Walston, Wells, Anderson & Baines, L.L.P., Birmingham, for Stacy Larrimore. Joseph C. Espy III and James E. Williams, of Melton, Espy, Williams & Hayes, P.C., Montgomery; and Gregg Brantley Everett, general counsel, Alabama Hospital Ass'n, for amicus curiae Alabama Hospital Association. BROWN, Justice. The question presented by these petitions for the writ of mandamus is whether certain records of Vaughan Regional Medical Center, Inc. ("Vaughan Regional"), relating to a staff physician are privileged under state law and, therefore, not subject to discovery. The trial judge held that some of the records were discoverable, but that some of them were not discoverable *375 because, he said, the discovery request was "overly broad." To the extent that the trial court ordered that the records were discoverable, we conclude that he erred. Therefore, we grant the petitions of Dr. F.H. Qureshi, Central Alabama Orthopedic, and Vaughan Regional for a writ of mandamus directing the trial judge to vacate his orders compelling discovery. Stacy Larrimore sued Dr. Qureshi and Central Alabama Orthopedic, alleging medical malpractice on the part of Dr. Qureshi. Specifically, Larrimore alleged that Dr. Qureshi had breached the applicable standard of care by improperly setting her broken left ankle and by failing to adequately and properly render postsurgical treatment regarding her broken ankle. Larrimore also sued Vaughan Regional, alleging that it had failed to render adequate postoperative care to her and that it had negligently or wantonly permitted Dr. Qureshi to perform the kind of procedures and treatments he had utilized on her. Additionally, Larrimore alleged that Vaughan Regional had been negligent in hiring and credentialing Dr. Qureshi. On January 21, 1998, Larrimore issued a notice of deposition to Vaughan Regional. The notice sought, pursuant to Rule 30(b)(6), Ala.R.Civ.P., to have a representative of Vaughan Regional testify regarding several subjects, including Dr. Qureshi's qualifications, training, education, and board certification in the field of orthopedic surgery. The notice further sought any investigations or evaluations of Dr. Qureshi and his qualifications, training, education, and board certification in the field of orthopedic surgery conducted or received by Vaughan Regional before Dr. Qureshi was granted staff privileges. In addition, pursuant to Rule 30(b)(5), Ala. R.Civ.P., the notice asked that Vaughan Regional produce certain documents at this deposition, including the following: Vaughan Regional filed an objection to producing documents that would be responsive to Request 3(h)-(k), claiming that the documents encompassed by that request were privileged, pursuant to § 22-21-8, Ala.Code 1975. Thereafter, Larrimore filed a motion to compel Vaughan Regional to comply with a discovery order the trial court had entered on September 10, 1997. On June 22, 1998, Vaughan Regional filed a response to Larrimore's motion to compel. Included as part of that response was the affidavit of Dr. Lotfi Bashir,[1] who was then serving as chairman of Vaughan Regional's credentialing committee. *376 In the affidavit, Dr. Bashir stated that the documents that would be responsive to Request 3(h)-(k) were maintained as part of Vaughan Regional's credentialing file on Dr. Qureshi. Dr. Bashir further stated that it was essential that the materials gathered by the hospital be kept confidential, so as to ensure that physicians applying for hospital staff privileges would provide complete and accurate information about their qualifications. Moreover, Dr. Bashir stated, if the information did not remain confidential then "physicians and health care institutions from whom materials are requested in the credentialing process would be less inclined to provide frank and open criticisms of physician applicants where warranted." On July 9, 1998, the trial judge entered an order on Larrimore's motion to compel, stating in pertinent part: Vaughan Regional then moved for a protective order holding that the documents referenced in the court's July 9, 1998, order did not have to be produced. See Ex parte Reynolds Metals Co., 710 So. 2d 897 (Ala.1998). On September 10, 1998, the trial court denied Vaughan Regional's request for a protective order. On October 22, 1998, Vaughan Regional petitioned for the writ of mandamus, asking this Court to hold the documents sought by Request 3(i)-(k) privileged under § 22-21-8, Ala.Code 1975. On October 23, 1998, Dr. Qureshi and Central Alabama Orthopedic filed their own petition for the writ of mandamus, seeking similar relief. On December 7, 1998, Stacy Larrimore filed a response in opposition to these two petitions. Additionally, Larrimore filed what has been docketed as a cross-petition for the writ of mandamus, asking this Court to hold that Request 3(h) was not overly broad and to order the trial court to direct Vaughan Regional to produce all documents responsive to that request. At issue in the instant cases is the meaning of § 22-21-8, Ala.Code 1975. This section, entitled "Confidentiality of accreditation, quality assurance credentialing materials, etc.," states: This Court recently addressed this same issue in Ex parte Krothapalli, 762 So. 2d 836 (Ala.2000). We wrote: 762 So. 2d at 838-39. (Emphasis supplied.) The trial court ordered Vaughan Regional to produce all documents responsive to Request 3(i)-(k) that had been furnished to the hospital by outside sources. Based on the decision in Ex parte Krothapalli, we conclude that the trial court erred. We note, however, that Krothapalli allows the discovery of these documents from their original sources. The facts before us, however, differ slightly from those in Krothapalli. Larrimore argues that because she has asserted a claim against Vaughan Regional alleging the negligent hiring and/or negligent credentialing of Dr. Qureshi she is entitled to receive these documents from Vaughan Regional, rather than from the original sources. Larrimore also argues that *379 § 22-21-8 is unconstitutional in that it bars her from prosecuting a claim against Vaughan Regional for the injuries she sustained as a result of the hospital's alleged negligence in hiring and/or credentialing Dr. Qureshi. Article I, § 10, of the Constitution of Alabama of 1901 provides that "no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party." Likewise, Article I, § 13, provides that "all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay." Virtually the same issue was addressed by the Arizona Court of Appeals in Humana Hospital Desert Valley v. Superior Court, 154 Ariz. 396, 742 P.2d 1382 (App. 1987). There, Humana Hospital was sued for negligent supervision of one of its physicians. The plaintiff, Marily Edison, sought discovery of the physician's application for staff privileges and any records reflecting the hospital's investigation into his application for staff privileges. The hospital objected to producing these documents, maintaining that Arizona's peer-review privilege protected files of its credentials committee. The trial court denied Humana and the defendant physician's motion to quash discovery of the hospital peer-review documents; Humana and the defendant physician appealed. On appeal, Edison argued that preventing discovery of the hospital peer-review documents would effectively abrogate her claim for negligent supervision, in violation of her rights under the Arizona Constitution. The Arizona Court of Appeals rejected Edison's argument, stating: 154 Ariz. at 400, 742 P.2d at 1386. In construing § 22-21-8, we adopt the reasoning of the Arizona Court of Appeals. Larrimore's right to sue Vaughan Regional for the negligent hiring and/or credentialing of Dr. Qureshi has not been abrogated. Neither our decision in Krothapalli nor our holding here today prevents Larrimore from obtaining documents that originated from sources other than Vaughan Regional's credentialing committee. Indeed, from the record before us, it appears that Larrimore has already obtained portions of this outside information. We conclude that the documents at issue in these cases are privileged, under Alabama's peer-review statute, § 22-21-8, Ala.Code 1975. Accordingly, the petition of Dr. Qureshi and Central Alabama Orthopedic, as well as the petition of Vaughan Regional Medical Center, are granted. The cross-petition of Stacy Larrimore is denied. The trial judge is directed to vacate his order requiring that Vaughan Regional provide documents responsive to Request 3(i)-(k) that were received from outside sources. 1980160PETITION GRANTED; WRIT ISSUED. 1980179VAUGHAN REGIONAL'S PETITION GRANTED AND WRIT ISSUED; STACY LARRIMORE'S CROSSPETITION DENIED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. SEE, J., recuses himself. [1] We note that Dr. Bashir's given name was spelled "Lofti" at several places in the record, including his affidavit. However, Dr. Bashir corrected the spelling of his name before executing the affidavit.

April 7, 2000

c3abf264-fa72-46a9-8bb3-2103fbaf14da

Ex Parte Travis

776 So. 2d 874

1970815

Alabama

Alabama Supreme Court

776 So. 2d 874 (2000) Ex parte Wayne Holleman TRAVIS. (In re Wayne Holleman Travis v. State.) 1970815. Supreme Court of Alabama. March 31, 2000. Rehearing Denied June 30, 2000. *875 George K. Elbrecht, Monroeville; and Robert C. King, Monroeville, for petitioner. Bill Pryor, atty. gen.; and Cecil G. Brendle, Jr., and G. Ward Beeson III, asst. attys. gen., for respondent. LYONS, Justice. Wayne Holleman Travis was convicted of capital murder for the death of Clarene Haskew; he was convicted under § 135-40(a)(4), Ala.Code 1975murder committed during the commission of a burglary in the first degree. By a vote of 11 to 1, the jury recommended that Travis be sentenced to death. The trial court followed the jury's recommendation and sentenced Travis to death by electrocution. In a unanimous decision, the Court of Criminal Appeals affirmed Travis's conviction *876 and sentence. Travis v. State, 776 So. 2d 819 (Ala.Crim.App.1997). We granted certiorari review pursuant to Rule 39(c), Ala. R.App. P. We now affirm Travis's conviction and sentence. Travis has raised 28 issues, as well as numerous subissues, for us to review. The Court of Criminal Appeals fully addressed and correctly resolved these issues in its thorough and well-reasoned opinion.[1] Only two issues warrant further discussion; both of them were specifically addressed at oral argument. On December 12, 1991, Travis and a friend, Steven Wayne Hall, traveled by bus to Uriah, Alabama. Paula Jean Shiver, a friend of Hall's, met them and drove them to her parents' home. Travis and Hall stayed with Shiver until December 14, when she drove them to the home of Travis's parents. Travis and Hall stayed there from 6:30 p.m. to approximately 7:05 p.m., and then left on foot. The home of the murder victim, 69-year-old widow Clarene Haskew, was approximately one mile away by road. Sometime shortly after 7:00 p.m., Travis and Hall arrived at the home of Jessie Wiggins, an elderly woman, and asked to use the telephone. They dialed several numbers and then left. Wiggins's home was approximately one mile from the victim's home. Later that evening, at approximately 10:30 p.m., Nellie Shad returned to her home and found that it had been burglarized; she described it as "completely trashed." A .38 caliber Rossi revolver and a .410-gauge shotgun had been taken. Shad drove to her sister's house, located several miles away, and telephoned the county sheriff's office. Shad's home was approximately one-fourth mile from the victim's home. On the morning of December 15, Wiggins went to the victim's home. She saw that the telephone wire leading into the house had been cut and that the porch and kitchen doors had been smashed in. Wiggins did not go in the home, but returned to her own home and telephoned the son of the victim. Later that morning, Conecuh County sheriff's deputies found Haskew's body in the kitchen of her home, which had been vandalized and burglarized. A pentagram had been spray-painted on a kitchen cabinet and the words "thunder struck" had been spray-painted on the floor, beside her body. Missing were silverware, an address book, and Haskew's 1982 Ford LTD. A Ford pickup parked in a shed was found with its steering column open and wires pulled out. An autopsy determined that Haskew had suffered two gunshot wounds to the back of her head. She had also suffered a number of blunt-force injuries to her head and body, her throat and extremities were bruised, and her hyoid bone, situated at the base of the tongue, was broken. Earlier that same morning, Travis and Hall had returned to Shiver's home. Sometime between 4:00 and 5:00 a.m., they drove up in Haskew's 1982 Ford LTD and parked it behind a camper. Travis stayed in the car most of the day and told Shiver that the car belonged to his sister-in-law. Travis went into the Shiver home around 6:00 p.m. that evening. Sometime later, the Monroe County sheriff arrived at the residence. When Shiver called out that the sheriff was there, Travis and Hall fled out the back door and went into the woods. The sheriff's department used tracking dogs from a nearby prison to track Travis and Hall through the woods to a "kudzu patch." A gunfight ensued; in that gunfight, law enforcement officers wounded both Travis and Hall. *877 When Travis was searched, officers found on his person the keys to the victim's automobile, five .38 caliber bullets, and his driver's license. When officers searched Haskew's automobile, they found in the automobile's glove compartment the.38 caliber Rossi revolver stolen from the Shad residence, and they found in the trunk the .410-gauge shotgun, the silverware, and the address book. Forensic tests later determined the .38 caliber revolver to be the weapon that had been used to shoot the victim. Both Travis and Hall were indicted on charges of capital murder. Like Travis, Hall was convicted of murder made capital pursuant to § 13A-5-40(a)(4), Ala.Code 1975, and was sentenced to death. Hall v. State, [Ms. CR-94-0661, October 1, 1999] ___ So.2d ___ (Ala.Crim.App.1999) (cert. review granted, January 12, 2000, docket no. 1990373). Travis contends that Haskew's murder was one of the most publicized and most discussed events in the history of Conecuh County and that inflammatory pretrial publicity so affected the community that a fair trial there was virtually impossible. He says that area newspapers printed numerous articles about that murder and that area television and radio stations broadcast numerous reports about it. Travis characterizes the victim as a beloved lady in the county who had been a first-grade teacher there for 25 years before she retired, and he says the citizens of the county were concerned, shocked, fearful, and angry after her death. Travis also contends that widespread rumors were generated in the county, rumors suggesting that the murder involved satanic worship, the use of satanic symbols, and the mutilation of the victim's body. The passions of the community were so aroused, he says, that many people thought that he and his codefendant should be executed without a trial, and he argues that those passions had not diminished by the time he was tried. In response, the State contends that by the time Travis was tried, in February 1993, passions regarding the murder had cooled and that Conecuh County residents who lived outside the community where the murder had occurred had heard little about it. Furthermore, the State contends that qualified jurors need not be totally ignorant of the facts and issues involved in a particular case in order to render an unbiased verdict, and that a defendant seeking a transfer because of pretrial publicity must show that he has been prejudiced by the publicity. The State argues that Travis did not show prejudice. The trial court denied Travis's motion for a change of venue. The Court of Criminal Appeals affirmed, noting that more than a year had passed between the date of the murder and the date of Travis's trial, and that the most intense media coverage had occurred immediately after the murder. This Court, in Ex parte Grayson, 479 So. 2d 76 (Ala.), cert. denied, 474 U.S. 865, 106 S. Ct. 189, 88 L. Ed. 2d 157 (1985), set out the standard for determining whether to grant a criminal defendant's motion for a change of venue on the basis of publicity surrounding the case: *878 Grayson, 479 So. 2d at 80 (citations omitted) (quoting Anderson v. State, 362 So. 2d 1296, 1299 (Ala.Crim.App.1978)). Furthermore, Alabama courts have held that the passage of time is a factor that can bring objectivity to a case in which the pretrial publicity has been extensive. Holladay v. State, 549 So. 2d 122 (Ala.Crim.App.1988), aff'd, 549 So. 2d 135 (Ala.), cert. denied, 493 U.S. 1012, 110 S. Ct. 575, 107 L. Ed. 2d 569 (1989). The trial court held an extensive hearing in January 1993 on Travis's motion for a change of venue. Travis introduced into evidence copies of the newspaper articles that had been printed about the murder and about his case and transcripts of television and radio broadcasts that reported the murder and his case. He also presented the testimony of numerous witnesses who described community reaction to the crime. Articles appeared in two local newspapers, The Evergreen Courant and The Conecuh Countian; a newspaper from a neighboring county, The Monroe Journal; and in metropolitan newspapers in Montgomery (The Montgomery Advertiser and The Alabama Journal), and in Mobile (The Mobile Register and The Mobile Press). Most of those articles were published in December 1991, shortly after the murder occurred, and in January 1992, when Travis and Hall were released from a Mobile hospital and returned to jail in Conecuh County. In February 1992, The Evergreen Courant published a photograph of Travis and a suspect in an unrelated murder being escorted to arraignment proceedings. In February 1992, The Conecuh Countian reported that trial dates had been set in two murder cases, one of them Travis's, but that delays in the trials were expected while "mental evaluations" were obtained. In April 1992, one of the Mobile newspapers published an article entitled "People of Conecuh County cope with seven death penalty cases." That article discussed not only the cases involving Travis and Hall, but another case in which five defendants were accused of capital murder. In May 1992, The Conecuh Countian reported that no capital-murder cases were scheduled for the trial court's June 1 docket. Only two articles were introduced at the hearing that appeared in 1993. One was an article dated January 21, 1993, in The Conecuh Countian, reporting that a change-of-venue hearing was set in the Haskew murder case. The other was a short article printed by one of the Mobile newspapers in its "Metro Briefing" section on January 23, 1993, reporting that Travis and Hall might be tried together if the trial court granted a motion to consolidate filed by the State, and reporting that several pretrial motions were scheduled to be heard in late January. All of the transcripts of radio and television broadcasts were of broadcasts that occurred in December 1991 and early January 1992. Headlines from some of the articles included: "County reels after murder of former elementary teacher," "Duo Captured After Night of Terror," "Experts analyze satanic marks," "Satanic slaying suspect had troubled childhood," "`Satanist' suspects arrested," "Suspects thought to be versed in satanism," and "Friends, relatives `shocked' at murder of their neighbor." Some articles mistakenly reported that Haskew's body had been mutilated. Several went into some detail about reports that Hall and Travis were "versed in satanism." All of the December 1991 articles went into graphic detail about Haskew's murder and what was known, or thought to be known, about the condition of her body and about the murder scene. Pictures of Travis and Hall were included with some of the January 1992 articles. During the hearing on Travis's motion for a change of venue, witnesses testified that Haskew's death had been widely discussed in Conecuh County, especially in the area where Haskew had lived. Those witnesses also testified about the widespread rumors in the community about satanic worship practices, the satanic symbols *879 found at the scene of the crime, and the reports that Haskew's body had been mutilated. Some witnesses also testified that many residents of the area thought that whoever killed Haskew did not deserve a trial and should be summarily executed. One witness admitted that before the hearing he had stated: "If you'll give me the gun, we'll go ahead and save all this time we're wasting." However, many of those same witnesses, including Conecuh County's five commissioners and several law-enforcement officers, testified that at the time of the hearing (a year after most of the news coverage had appeared), the murder was no longer a topic of conversation and had not been widely discussed for the past six to seven months. Several teachers who had worked with Haskew testified that her murder was seldom discussed at school and that they did not hear any discussion about it in the community. The trial court denied Travis's motion for a change of venue, but in light of the testimony regarding the extent and nature of the publicity after Haskew's death, decided to allow the attorneys in the case to conduct individual voir dire of the jury veniremembers. The trial court is to be commended for its thoroughness and diligence in permitting approximately two and one-half days of voir dire questioning. The record contains almost eight volumes of voir dire, consisting of approximately 1500 pages of testimony from almost 100 potential jurors. The veniremembers' answers to the attorneys' voir dire questions reflected that many of them indeed had been exposed to extensive pretrial publicity, and, in many cases, that what they had read and heard about the case had caused them to make up their minds before the trial about Travis's guilt. As to each potential juror who testified that he or she knew more than the basic facts about the murder, had read or heard about the common rumors of satanism or mutilation, or had enough pretrial knowledge about the case to have formed an opinion about what its outcome should be, the trial court granted Travis's challenge for cause and dismissed that veniremember. Of the 12 persons who served on the jury, 7 knew only what they remembered reading in the newspapers at the time of the murder, 4 had neither heard nor read anything about the case, and 1 was not asked what he had heard or read. Those jurors who had some general knowledge about the case testified that they could be fair and would return a verdict based only on the evidence presented at trial. To be entitled to a transfer of his case, Travis needed to prove that Conecuh County had been so pervasively saturated with pretrial publicity that the court proceedings would be nothing more than a formality or that he was otherwise actually prejudiced by that publicity. Ex parte Neal, 731 So. 2d 621 (Ala.), cert. denied, 527 U.S. 1027, 119 S. Ct. 2377, 144 L. Ed. 2d 780 (1999). We conclude that he proved neither. Although Travis established that considerable pretrial publicity had occurred through the news reports and that some of it was untrue and bordered on the sensational, that kind of publicity lasted only a few days during a period of more than one year before the trial. Thereafter, the newspaper articles contained in the record of this case report primarily on upcoming court proceedings. This case does not present a situation where the pretrial publicity was so prejudicial and pervasive that it made a fair and impartial trial impossible. Moreover, Travis did not demonstrate any other sort of actual prejudice. Nothing in the record indicates that those jurors who served did not return a verdict based solely on the evidence presented at trial. Therefore, the trial court did not abuse its discretion in denying Travis's motion for a change of venue, and the Court of Criminal Appeals properly affirmed that decision. The final venire from which the jury was selected in Travis's case consisted of 36 members; 20 were black and 16 were *880 white. During the jury-selection process, the State used 11 of its 12 peremptory strikes to exclude black members. Travis used all 12 of his peremptory strikes to exclude white members. The jury selected consisted of 9 black jurors and 3 white jurors. One alternate juror was black and one was white. The defendant is white, as was the victim. After the jury had been selected, Travis made a motion pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The trial court found that Travis had established a prima facie case of racial discrimination in the jury selection, based upon the State's pattern of strikes. The district attorney then articulated his reasons for excluding the 11 black veniremembers, explaining that 10 had indicated they had objections to the death penalty. In addition, the district attorney stated that of those veniremembers, one had been prosecuted for possession of marijuana and resented the officer who had arrested him, two seemed confused by the voir dire questions, and one was a social worker who was pursuing a career in criminal justice. The district attorney said he struck the 11th black juror because he had prosecuted her husband for theft. The trial court found that the district attorney's reasons for striking those 11 jurors were race-neutral, and it denied Travis's Batson motion. The Court of Criminal Appeals, reviewing Travis's Batson issue, stated: 776 So. 2d at 840-41 (citations omitted). Travis argues that he established a strong prima facie case of racial discrimination *881 because, he says, race was the only characteristic shared by those veniremembers struck by the district attorney; the district attorney used 11 of his 12 strikes to exclude blacks; the district attorney did not question the black veniremembers as extensively as he did the white veniremembers; and the district attorney did not strike whites for the same reasons for which he says he struck blacks. Travis argues that the fact that a greater percentage of blacks than whites ultimately served on the jury did not prevent an inference of discrimination and that the reasons given by the district attorney for striking the black jurors were pretextual. The State maintains that the district attorney's reasons for striking the 11 black veniremembers were race-neutral. The fact that a veniremember has reservations about the use of the death penalty is a valid race-neutral reason for the exercise of a peremptory strike, the State says. The State also says that a veniremember's connection with criminal activity or a relative's criminal prosecution can constitute a sufficiently race-neutral reason for the exercise of a peremptory strike. Furthermore, according to the State, the number of blacks struck and the number of blacks left on the jury both are significant factors to consider in evaluating a Batson challenge. The Court of Criminal Appeals accurately discussed the law and the facts of this case relative to Travis's Batson challenge. We agree with the Court of Criminal Appeals that the trial court's denial of Travis's Batson motion was not clearly erroneous. Travis, however, in his certiorari petition, has made certain arguments regarding this issue that we believe we should address. Travis argues in his brief in support of his certiorari petition that the district attorney's questioning of those black veniremembers he struck from the jury, when compared to his questioning of white veniremembers, "consisted of nothing more than desultory voir dire, with a lack of questions, a lack of meaningful questions and disparate examination of members of the venire." This Court has held that the State's failure to engage in any meaningful voir dire examination on a subject the State alleges it is concerned about is evidence suggesting that the explanation is a sham and a pretext for discrimination. Ex parte Bird, 594 So. 2d 676, 683 (Ala. 1991). However, that is not the case here. We have reviewed the transcript of these voir dire proceedings, and we find nothing desultory about the State's voir dire questions to any of the veniremembers. Certainly, not every veniremember was questioned in exactly the same way or for exactly the same amount of time. Nevertheless, a comparison of the voir dire questions posed to those jurors whose race has been revealed to us reflects no significant differences between them. Travis characterizes as pretextual the district attorney's explanation that 10 of the black veniremembers he struck had expressed opposition to the death penalty. Of those 10 veniremembers, the district attorney challenged 2, S.D. and E.M., for cause, at the conclusion of their voir dire questioning, based upon their opposition to the death penalty; the trial court refused to excuse those jurors for cause, despite their having testified that they would not impose the death penalty. Another, J.J., testified that according to his religious beliefs, he "would hate to" vote for the death penalty, but he also said that he would follow the judge and the law. Upon further questioning, he stated that he could not recommend the death penalty. Another, W.B., stated that he did not want to see anyone die and that he was not in favor of the death penalty. Upon further questioning, however, he stated that he would "have to go along with the law." Another, W.W., was hesitant about whether he could apply the death penalty, answering "I guess" and "I just don't know" when asked questions. Another, F.J.P., stated that she generally was against the death penalty because it was "like I'm *882 killing that person," but she also stated, "I guess the facts could make me change." As to veniremember C.B., we note that the district attorney stated to the trial court that he had unsuccessfully challenged her for cause and that that statement was incorrect. However, our review of C.B.'s testimony reveals that she did express serious reservations about the death penalty, stating that she did not think she could take a life and did not think she could vote for the death penalty, but that she might if the case was "bad enough." As the Court of Criminal Appeals noted, opposition to the death penalty is a race-neutral reason for a strike. See, e.g., Carroll v. State, 599 So. 2d 1253 (Ala.Crim.App.1992), aff'd, 627 So. 2d 874 (Ala.1993), cert. denied, 510 U.S. 1171, 114 S. Ct. 1207, 127 L. Ed. 2d 554 (1994). Furthermore, as the Court of Criminal Appeals noted, C.G., the one white veniremember struck by the district attorney, also had expressed ambivalence about the death penalty; this fact indicated that the district attorney's stated reason for striking those black veniremembers who opposed the death penalty was properly raceneutral. See Lyde v. State, 605 So. 2d 1255 (Ala.Crim.App.1992). The district attorney also gave an independent reason for striking C.G., however; that witness had stated that he had been abused as a child. Evidence that Travis had been abused as a young child was expected to play a part in the trial. As to the remaining three black veniremembers who were stricken because they expressed reservations about the imposition of the death penalty, the district attorney articulated a second, independent reason for those strikes. He stated that he struck V.M. because she was a social-work and criminal-justice major in college; K.P. because his mother had murdered his father and had served time in prison; and C.H. because he had been arrested once for possession of marijuana and once for driving under the influence (D.U.I.) and stated that he held a "small" grudge against the state trooper who arrested him on the D.U.I. charge. The district attorney's sole reason for striking the 11th black veniremember, K.T., was that he had prosecuted her husband for theft and forgery. As the Court of Criminal Appeals noted, the fact that a veniremember's relative has been a criminal defendant can be a race-neutral reason for a peremptory strike. See Powell v. State, 548 So. 2d 590 (Ala.Crim.App.1988), aff'd, 548 So. 2d 605 (Ala.1989). Travis complains that the district attorney asked black jurors whether they or their family members had been prosecuted, but that he did not ask that question of white veniremembers. He also complains that the district attorney did not strike one white veniremember, K.M., who had himself been prosecuted for theft and who ultimately served on the jury, and that the district attorney did not strike another white veniremember, B.G., who said that members of his family had been prosecuted for criminal offenses. The transcript of the voir dire proceedings shows that the district attorney did not question those white veniremembers struck by Travis about criminal prosecution, although several of them were asked that question by Travis's counsel. The district attorney did ask six of the black veniremembers he struck whether they or a family member had been criminally prosecuted, but he did not ask that question of the other five. Of those veniremembers who served on the jury, the district attorney questioned 4 of the 12 about criminal prosecution; however, we do not know the race of any juror who served except for K.M. After reviewing the voir dire proceedings as a whole, we do not believe the district attorney's questioning of the veniremembers reached the level of disparate treatment that would furnish evidence of discriminatory intent. Ex parte Bird, 594 So. 2d at 681. In assessing the testimony of those veniremembers stricken by the district attorney on the basis of a criminal prosecution, *883 we note that K.P. had experienced within his own immediate family the crime of murder, that C.H. expressed some lingering resentment toward a law-enforcement official, and that the district attorney himself had prosecuted K.T.'s husband. Despite the district attorney's involvement with K.T.'s husband, she expressed no resentment toward him and she was his final strike, serving as an alternate juror. Of those white veniremembers who were not stricken by the district attorney, K.M. stated that his offense had occurred when he was a juvenile and that he had been prosecuted by "the City," and B.G. testified that the family members who had had legal problems were cousins in Florida with whom he had no contact. As previously noted, K.M. served on Travis's jury. Finally, we point out that Travis struck B.G. We agree with the Court of Criminal Appeals that the record gives no indication that the district attorney's exercise of his peremptory strikes was racially motivated, and we agree that the trial court's denial of Travis's Batson motion was not clearly erroneous. We have carefully reviewed all of the issues presented in Travis's petition, in the parties' briefs, and at oral argument. We have examined the opinion of the Court of Criminal Appeals and have exhaustively searched the record for plain error. We find no error, plain or otherwise, in either the guilt phase or the penalty phase of Travis'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,[*] and SEE, JJ., concur. JOHNSTONE, J., concurs specially.[**] BROWN, J., recuses herself.[***] JOHNSTONE, Justice (concurring specially). I concur with the scholarly majority opinion in every respect except that I do not necessarily agree with the holding by the Court of Criminal Appeals regarding the exclusion of testimony by Investigator Benson to the effect that, after he asked the defendant's codefendant to draw some of the satanic cult symbols spray-painted inside the victim's house, the codefendant drew a pentagram that had been spraypainted on a cabinet above the victim's body. This testimony would have tended to prove that the codefendant was present at the murder. Because the defendant's defense was that he was absent, the excluded testimony would have tended to prove his defense by explaining the crime, even though the testimony would not have tended to prove the defendant's absence. The defendant had a right to rely on other evidence or inferences to raise a reasonable doubt to the effect that he was absent, not present. Moreover, because an essential element of capital murder is that the defendant harbored the specific intent to kill the victim, evidence of the presence of the codefendant, even if the defendant were also present, could, depending on the other evidence, allow the jury to conclude that the codefendant had committed the fatal acts and that only the codefendant had harbored the specific intent to kill. While the Court of Criminal Appeals cites various of its own precedents to the effect that the defendant was not entitled to the introduction *884 of Investigator Benson's testimony for these tendencies, the case of Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973), suggests that denying a defendant the right to introduce evidence that another committed the crime may violate the defendant's right to due process. See also Green v. Georgia, 442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738 (1979). [1] We do not address the premise of the Court of Criminal Appeals in Parts VI and VII of its opinionthe premise that Travis had failed to preserve error in regard to certain jury instructionsbecause we conclude that the instructions at issue would not have been found reversible even under a "preserved-error" standard of review. [*] Although Justice Cook did not sit for oral argument, he has listened to the tape of oral argument. [**] Although Justice Johnstone was not a member of this Court when this case was orally argued, 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.

March 31, 2000

ee6f7e99-6aed-48bb-8280-5611553b0ce9

Mangiafico v. Street

767 So. 2d 1103

1980391

Alabama

Alabama Supreme Court

767 So. 2d 1103 (2000) Mark S. MANGIAFICO et al. v. John H. STREET, Jr., and John H. Street, Sr. 1980391. Supreme Court of Alabama. March 24, 2000. Nathaniel D. Owens of Remedies Legal Services, P.C., Anniston, for appellants. Alfred F. Smith, Jr., of Bainbridge, Mims, Rogers & Smith, L.L.P., Birmingham, for appellees. BROWN, Justice. The opinion of December 17, 1999, is withdrawn, and the following is substituted therefor. Mark Mangiafico and Vicki Mangiafico, d/b/a Precision Tune, and AnniTune, Inc. (all hereinafter referred to as "Mangiafico"), appeal from the trial court's judgment *1104 dismissing their action against John H. Street, Jr., and John H. Street, Sr. (together hereinafter referred to as "Street"), for failure to initiate arbitration. We affirm. In 1994, Mark and Vicki Mangiafico purchased a corporation known as AnniTune, Inc., from David Gremaud; in doing so, they assumed a lease agreement previously executed by Gremaud, as lessee, and Street, as lessor. Included in the terms of the lease was a provision prohibiting Street from subleasing to a like-kind competitor of AnniTune any portion of certain premises where the AnniTune business was located.[1] In 1995, Street leased space in a portion of the premises to a person operating a business called "Tommy Griffith Auto Repair." Mangiafico and Street renewed the lease on July 30, 1996; however, shortly after renewing the lease, Mangiafico filed for bankruptcy protection. Mangiafico did not disclose any claim against Street as a potential asset in any of the documents executed during the bankruptcy proceeding. Mangiafico was discharged from all debts under Chapter 7 of the Bankruptcy Code on June 20, 1997. In February 1998, Mangiafico sued Street, alleging breach of the lease agreement. Street filed a motion to dismiss, based on the doctrine of judicial estoppel, and also moved to compel arbitration, pursuant to the following arbitration provision found at paragraph 23(m) of the lease agreement: On July 23, 1998, the trial court granted the motion to compel arbitration, stating in its order: Mangiafico appealed from that judgment of dismissal. Mangiafico appears to argue that the dismissal denied Mangiafico the contractual right to arbitration and thus was an abuse of the trial court's discretion. Street argues, among other things, that Mangiafico failed to demonstrate that the trial court abused its discretion in dismissing the case after Mangiafico had failed to initiate arbitration proceedings within the 30-day period. We agree. It is well established that a trial court must be vested with the authority "to manage its affairs in order to achieve the orderly and expeditious disposition of cases." Iverson v. Xpert Tune, Inc., 553 So. 2d 82, 87 (Ala.1989). Further, it is not an abuse of discretion for a trial court to hold the parties to the terms of its order. Eastern Dredging & Constr., Inc. v. Parliament House L.L.C., 698 So. 2d 102, 104 (Ala.1997). The trial court gave Mangiafico specific notice that arbitration was to be initiated within 30 days. Twenty-two days later, Mangiafico moved to extend the time for initiating arbitration. The trial court did not rule on the motion before the expiration of the 30-day period. Mangiafico failed to initiate arbitration, despite the clear language in the trial court's order indicating that the case would be dismissed if arbitration proceedings were not begun within 30 days. Because Mangiafico did not commence arbitration as ordered by the terms of the July 23, 1998, order, the trial court, acting within its discretion and authority to manage the cases before the court, properly dismissed the case. The judgment of dismissal is affirmed. OPINION OF DECEMBER 17, 1999, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED. HOOPER, C.J., and HOUSTON and SEE, JJ., concur. MADDOX and LYONS, JJ., concur in the result. JOHNSTONE and ENGLAND, JJ., dissent. JOHNSTONE, Justice (dissenting). I respectfully dissent because, under our established law, a trial court should not inflict the drastic sanction of dismissal with prejudice for a party's missing a nonjurisdictional deadline unless the party's default in that regard is willful or contumacious. Burdeshaw v. White, 585 So. 2d 842 (Ala.1991); Weatherly v. Baptist Medical Center, 392 So. 2d 832 (Ala.1981); Smith v. Wilcox Bd. of Educ., 365 So. 2d 659 (Ala. 1978); Coulter v. Stewart, 726 So. 2d 726 (Ala.Civ.App.1999); and Ryder Int'l Corp. v. State, 439 So. 2d 162 (Ala.Civ.App.1983). The facts of the case before us do not support a finding of willful or contumacious conduct by these plaintiffs and therefore do not support the drastic sanction of dismissal with prejudice. ENGLAND, Justice (dissenting). I dissent from the judgment affirming the trial court's order dismissing this case *1106 because Mangiafico did not commence arbitration in accordance with the terms of the trial court's July 23, 1998, order. The record reflects that on July 23, the trial court granted Street's motion to compel arbitration, stating in its order: On August 14, eight days before the 30-day period for initiating arbitration would expire, Mangiafico moved to extend the time for initiating arbitration, setting forth his reasons for seeking an extension. While the motion to extend time was pending, the 30-day period for initiating arbitration expired. The trial court, on August 25, 1998, entered the following order: Thus, the trial court did not address the defendants' motion to extend time until after the 30-day period had lapsed. I believe the sanction of dismissal is too drastic a measure under the circumstances of this case. In Coulter v. Stewart, 726 So. 2d 726 (Ala.Civ.App.1999), the Court of Civil Appeals stated: 726 So. 2d at 728 (emphasis added)(some citations omitted). *1107 Because I do not believe the evidence supports the dismissal, I must respectfully dissent. [1] The lease agreement included the following provision: "AGREEMENT NOT TO COMPETE: Lessor shall not, at any time during the term thereof, if Lessee is not in default hereunder, sublease any portion of the property within Block 23 north of the premises leased herein to any person or entity engaging in the business of domestic and foreign automotive oil changes and lubrication, automotive tune-ups and diagnosis,... carburetion and fuel injection repairs and computerized engine control repairs."

March 24, 2000

05024a96-39a1-486d-9e4e-cf94386f69b7

Ex Parte Hyde

778 So. 2d 237

1971109

Alabama

Alabama Supreme Court

778 So. 2d 237 (2000) Ex parte James Matthew HYDE. (Re James Matthew Hyde v. State). 1971109. Supreme Court of Alabama. March 10, 2000. Rehearing Denied September 1, 2000. *238 Terry Huffstutler, Guntersville; and Ruth E. Friedman, Montgomery, for petitioner. Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for respondent. PER CURIAM. James Matthew Hyde was convicted of capital murder for the death of Ernest Andrew Whitten, an Albertville police officer. The murder was made capital (1) because it occurred during a burglary, see § 13A-5-40(a)(4), Ala.Code 1975; (2) because Whitten had served as a grand-jury witness, see § 13A-5-40(a)(14); and (3) because Whitten had been subpoenaed to testify at the trial of Larry Whitehead, see § 13A-5-40(a)(14).[1] By a vote of 7 to 5, the jury recommended a sentence of life in prison without the possibility of parole; however, the trial court overrode that recommendation and sentenced Hyde to death by electrocution. The Court of Criminal Appeals affirmed Hyde's conviction and the sentence of death. Hyde v. State, 778 So. 2d 199 (Ala.Crim.App.1998). This Court granted Hyde's petition for the writ of certiorari, pursuant to Rule 39(c), Ala. R.App. P., and heard oral argument. We affirm. The events leading up to Whitten's murder began with an investigation of Larry Whitehead by the Albertville Police Department. Whitehead had been on the payroll for over 40 weeks at a plant operated by Hudson Foods, Inc., but he had rarely worked at the plant. Instead, Whitehead would skip work and would have a friend clock him in and out. When Hyde was caught clocking out with Whitehead's time card, a Hudson Foods employee contacted the police to report that Whitehead was suspected of receiving pay without working. Whitten conducted the investigation and testified before a grand jury regarding his investigation. Whitehead was indicted for theft in the first degree and was released on bond pending his trial. Whitten was to testify at Whitehead's trial, which was scheduled to begin on January 30, 1995. The evidence indicates that Whitehead believed the theft case against him would be dismissed if Detective Whitten was unable to testify. To that end, Whitehead enlisted the help of Hyde and a man named Stephen Brookshire. There was evidence indicating that Whitehead used threats and intimidation to control both Hyde and Brookshire. According to Hyde's statement to the police, Whitehead came to his house on the evening of January 24, 1995, and asked for his help. Hyde and Whitehead then picked up Brookshire and drove to Whitten's house. While Whitehead and Brookshire waited in the car, Hyde entered an enclosed porch and knocked on the kitchen door. When Whitten answered the door, Hyde fired a shot; the bullet passed through the door and struck Whitten in the abdomen. The gun jammed; Hyde ran back to the car, and the three men left. Whitten died the next day from injuries he had sustained in the shooting. On the night of the shooting, Hyde asked Tammy Chamblee and Sabrina Self to help him dispose of the clothes he had been wearing at the time of the shooting. The next day Tammy Chamblee contacted the police and told them about helping Hyde dispose of the clothes. According to *239 Chamblee and Self, Hyde told them he had shot someone to help a friend. Chamblee stated that Hyde told her he had shot "Andy Whitten, a cop." Hyde has raised 24 issues, including numerous subissues, for this Court to review. The opinion of the Court of Criminals Appeals thoroughly addressed all of these issues and the facts of the case.[2] Because this case involves the death penalty, we have reviewed the record for any "error [that] has or probably has adversely affected the substantial rights" of the defendant. Rule 39(k), Ala.R.App.P. Having carefully considered the record, together with the petition, the briefs, and the arguments of counsel, we find no error, plain or otherwise, in either the guilt phase or the penalty phase of Hyde's trial that would warrant reversal. Accordingly, the judgment of the Court of Criminal Appeals is affirmed. AFFIRMED. HOOPER, C.J., AND MADDOX, HOUSTON, COOK, SEE, JOHNSTONE, and ENGLAND, JJ., concur. BROWN, J., recuses herself.[*] [1] Hyde was originally indicted on four counts, including an additional count alleging the capital murder of a law-enforcement officer. See § 13A-5-40(a)(5), Ala.Code 1975. The State later dropped that charge. [2] We reject the alternative theory stated by the Court of Criminal Appeals that "the entry of the bullet into the house constituted an entry under the burglary statute," 778 So. 2d at 212, and we reject the rationale of that court in this regard. In requiring an entry, 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. § 13A-7-5(a), Ala.Code 1975. The theory that the entry by the bullet satisfies the element of entry would render entirely superfluous § 13A-11-61, Ala.Code 1975, specifically condemning shooting into dwellings, because under that theory every shooting into a dwelling would constitute a burglary. Rather, because § 13A-11-61 specifically condemns shooting into a dwelling and does not include any element of physical entry by the defendant himself or herself, this Code section, rather than those statutes defining burglary, govern Hyde's conduct under the rule of statutory construction known as expressio unius est exclusio alterius. The Court of Criminal Appeals should have restricted the rationale for its affirmance to the evidence of record, which supports the conclusion that the defendant did, in fact, bodily enter the victim's dwelling to shoot him. The alternative holdingthat the entry by the bullet satisfied the "entry" element of the burglary statuteis bad and unnecessary law. It abandons the fundamental rule that criminal statutes are construed strictly against the State. See Ex parte Jackson, 614 So. 2d 405 (Ala.1993). [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

March 10, 2000

b1b004d4-6dd4-4233-ada9-d7ec90c670c1

Ex Parte Hurth

764 So. 2d 1272

1980459

Alabama

Alabama Supreme Court

764 So. 2d 1272 (2000) Ex parte Alonzo HURTH. 1980459. Supreme Court of Alabama. February 25, 2000. *1273 Alonzo Hurth, petitioner, pro se. Bill Pryor, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for respondent. SEE, Justice. Alonzo Hurth petitions for a writ of mandamus directing the Jefferson Circuit Court to vacate its order denying his motion to proceed in forma pauperis on a petition he filed pursuant to Rule 32, Ala. R.Crim. P. We conclude that the trial court abused its discretion in denying Hurth's motion, and we grant his requested relief. Alonzo Hurth was convicted of robbery and was sentenced to life in prison as a habitual offender. The Court of Criminal Appeals, on September 26, 1997, affirmed, without opinion. Hurth v. State, 725 So. 2d 1085 (Ala.Crim.App.1997) (table). In September 1998, Hurth filed in the circuit court a Rule 32 petition for relief from that conviction and filed a motion for leave to proceed in forma pauperis. In support of this motion, Hurth submitted copies of his prison-fund records. These records established that during the seven preceding months, his average monthly deposit had been only $23.57 and his average daily balance, calculated monthly, had never exceeded $14.47. The court denied the motion to proceed in forma pauperis, with an order that read in pertinent part: Hurth petitioned the Court of Criminal Appeals for a writ of mandamus directing *1274 the circuit court to permit him to proceed in forma pauperis. The Court of Criminal Appeals, on November 30, 1998, dismissed that petition, without an opinion. Ex parte Hurth, 744 So. 2d 967 (Ala.Crim.App.1998) (table). Hurth now petitions this Court for the same relief. See Rule 21(e), Ala. R.App. P. The docket fee for the filing of a petition for post-conviction relief is $140.00. See Ala.Code 1975, § 12-19-71(3); Rule 32.6(a), Ala. R.Crim. P. "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)). "While habeas corpus may, of course, be found to be a civil action for procedural purposes, it does not follow that its availability in testing the State's right to detain an indigent prisoner may be subject to the payment of a filing fee." Smith, 365 U.S. at 712, 81 S. Ct. 895. (Citation omitted.) "[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). A writ of mandamus "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). Although the trial court can require the payment of a docket fee when it finds that a Rule 32 petitioner is not indigent, see Ex parte Thomas, 723 So. 2d 1261, 1262 (Ala. 1998), the facts before this Court indicate that Hurth was indigent when he filed his petition for post-conviction relief. See, e.g., Malone v. State, 687 So. 2d 218, 219 (Ala.Crim.App.1996) (holding that the petitioner was indigenthis prison fund had shown a balance of $15.04 on the day before he filed his Rule 32 petition, and his account had never contained more than $60.21 during the four months before he filed his petition). Moreover, nothing before this Court indicates that Hurth's financial status has changed since he filed his petition. Accordingly, the circuit court is directed to vacate its order denying Hurth's motion to proceed in forma pauperis and is directed to permit Hurth to proceed with his Rule 32 petition without paying a docket fee. WRIT GRANTED. MADDOX, HOUSTON, BROWN, and ENGLAND, JJ., concur.

February 25, 2000

88ede8cf-6498-4013-b74f-c9c266e5c16d

Celtic Life Ins. Co. v. Lindsey

765 So. 2d 640

1972120, 1972121, 1972188, 1972189

Alabama

Alabama Supreme Court

765 So. 2d 640 (2000) CELTIC LIFE INSURANCE COMPANY v. Kimberly F. LINDSEY. Celtic Life Insurance Company v. Gary P. Lindsey. Arthur T. Ferrell v. Kimberly F. Lindsey. Arthur T. Ferrell v. Gary P. Lindsey. 1972120, 1972121, 1972188 and 1972189. Supreme Court of Alabama. March 10, 2000. Harold F. Herring, Gurley, for appellant Celtic Life Ins. Co. John D. Herndon of Huie, Fernambucq & Stewart, L.L.P., Birmingham, for appellant Arthur T. Ferrell. Robert I. Rogers, Jr., of Bedford, Rogers & Bowling, P.C., Russellville, for appellees Kimberly F. Lindsey and Gary P. Lindsey. ENGLAND, Justice. Kimberly Lindsey and Gary Lindsey purchased a health-insurance policy from Celtic Life Insurance Company, through its agent Arthur T. Ferrell. Later, after Celtic Life denied payment on a claim, the Lindseys, acting separately, sued Celtic Life and Ferrell, alleging fraud, suppression, bad-faith failure to pay a claim, and breach of contract. Celtic Life and Ferrell moved to compel arbitration of the Lindseys' claims, relying on an arbitration provision contained in the Lindseys' insurance *641 policy. The trial court denied the motions to compel arbitration. Celtic Life and Ferrell, acting separately, have appealed the orders denying arbitration in the two actions filed by the Lindseys. We reverse and remand. On March 10, 1997, Kimberly and Gary Lindsey applied for health insurance from Celtic Life, an Illinois corporation, through Celtic Life's agent, Arthur T. Ferrell. Celtic Life considered and accepted the application, and on May 1, 1997, it issued the insurance policy. Subsequently, the Lindseys incurred medical expenses that their insurance policy with Celtic Life purported to cover. Celtic Life alleges that the claims were denied because they were based on a medical condition of Mrs. Lindsey that it says preexisted the issuance of the insurance policy but was not disclosed on the application for insurance coverage. Celtic Life denied coverage to the Lindseys and purported to rescind the contract of insurance by tendering a premium refund. With regard to preexisting conditions, the policy states: The policy also states: It is well settled that the Federal Arbitration Act preempts contrary state law and renders enforceable a predispute arbitration agreement contained in a contract that involves interstate commerce. See 9 U.S.C. § 2 and Allied-Bruce Terminix Companies v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995). The Lindseys have conceded that the question whether the insurance policy involved and affected interstate commerce is not in dispute. The Lindseys state the issue on appeal as whether a contractual arbitration provision should be enforced after the parties to the contract have rescinded the contract. The Lindseys argue that Celtic Life rescinded the insurance contract by returning the premium to the Lindseys and, therefore, that the arbitration provision can no longer be enforced. Alabama Great So. R.R. v. Independent Oil Co., 230 Ala. 222, 224 160 So. 720, 722 (1935) (quoting 6 R.C.L. § 323, p. 942). A mutual rescission "occurs only where the acts of one party are fully acquiesced in by the other." Matthews v. Martin, 394 So. 2d 943, 944 (Ala.1981) (citing San-Ann Service, Inc. v. Bedingfield 293 Ala. 469, 305 So. 2d 374 (1974)). "[A] mutual rescission consists of the same requisite elements as a legal contract." Id. It includes a meeting of the minds of the parties to mutually release each other from their obligation under the contract, fully settling all rights under the contract. Id. Celtic Life purported to rescind the insurance contract it had with the Lindseys, by refunding the premium. It is not clear that the parties to the contract at issue here have mutually agreed to rescind it, and the fact that the Lindseys filed an action alleging a breach of contract suggests there was no mutual assent to abandon the contract. The Lindseys argue that there is now no contract because, they say, Celtic Life has rescinded it, and at the same time they argue that they have claims based on that contract, the very contract they argue does not exist. The Lindseys in effect seek to enforce the contract but without the arbitration provision that was contained in it. This present situation is very similar to the situation addressed by this Court in Delta Construction Corp. v. Gooden, 714 So. 2d 975 (Ala. 1998), in which we stated: 714 So. 2d at 981. Like the plaintiffs in Dyess and Delta Construction, the Lindseys cannot pick and choose between provisions in the contract. Moreover, "`"challenges seeking to avoid or rescind a contract"'" containing an arbitration provision are subject to arbitration. NationsBanc Invs., Inc. v. Paramore, 736 So. 2d 589, 593 (Ala.1999) (quoting Three Valleys Municipal Water Dist. v. E.F. Hutton & Co., 925 F.2d 1136, 1140 (9th Cir.1991)). The trial court's order denying the motions to compel arbitration is reversed, and the cases are remanded. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, LYONS, and BROWN, JJ., concur. SEE, J., concurs in the result.

March 10, 2000

08dce7a0-5138-48db-85a6-88462a59dd3e

Alabama Educ. Ass'n v. Nelson

770 So. 2d 1057

1981926

Alabama

Alabama Supreme Court

770 So. 2d 1057 (2000) ALABAMA EDUCATION ASSOCIATION and Corrie Haanschoten Long v. Susan NELSON. 1981926. Supreme Court of Alabama. March 3, 2000. Rehearing Denied May 5, 2000. James H. Anderson and William F. Patty of Beers, Anderson, Jackson, Nelson, Hughes & Patty, P.C., Montgomery; and J. Cecil Gardner and Sam Heldman of Gardner, Middlebrooks, Fleming, Gibbons & Kittrell, P.C., Mobile, for appellants. John I. Cottle III and James R. Bowles of Bowles & Cottle, Tallassee, for appellee. HOUSTON, Justice. The Alabama Education Association ("AEA") and Corrie Long[1] are defendants in an action pending in the Montgomery Circuit Court. We granted permission under Rule 5, Ala. R.App. P., for them to appeal the trial court's interlocutory order denying their motion for a summary judgment.[2] We reverse and remand as to the *1058 AEA. We dismiss the appeal as it relates to Long. Susan Nelson is a former schoolteacher. She was employed by the Etowah County Board of Education. She had a dispute with the Board concerning whether she had tenure and whether she was entitled to a pay increase. The AEA, an organization composed largely of teachers in the public schools, employs a number of inhouse attorneys who represent members of the AEA in work-related actions. Nelson was an AEA member. One of the AEA attorneys, J. Victor Price, Jr., filed an action for Nelson against the Board. Price represented Nelson during the trial proceedings; Nelson lost in the trial court, and Price represented her on appeal to the Court of Civil Appeals and on a certiorari review by this Court. Nelson v. Etowah County Bd. of Educ., 607 So. 2d 1257 (Ala. Civ.App.1991), reversed, 607 So. 2d 1259 (Ala.), on remand, 607 So. 2d 1261 (Ala.Civ. App.1992). On remand to the trial court, Nelson received another adverse ruling. Again, Price prepared an appeal to the Court of Civil Appeals; however, Price took a leave of absence before that court decided the case. In his absence, Long worked on the case. The Court of Civil Appeals affirmed the judgment of the trial court, Nelson v. Etowah County Bd. of Educ., 703 So. 2d 413 (Ala.Civ.App.1997), and Long informed Price of that decision. Long agreed to file an application for rehearing, and she did so. The Court of Civil Appeals denied the application. Long did nothing further on the case, even though she had told Nelson she would petition this Court for certiorari review. Nelson filed this present action to recover damages under the Alabama Legal Services Liability Act ("ALSLA"), § 6-5-570 to -581, Ala.Code 1975. She alleges legal malpractice in Long's failure to petition this Court for certiorari review following the Court of Civil Appeals' affirmance in her second appeal. The AEA contends that it is not a "legal service provider" and therefore is not subject to liability on a claim of legal malpractice. We must consider whether the AEA comes within the definition of "legal service provider" set out in the ALSLA, at § 6-5-572(2). If it does, then the AEA is a proper defendant in this legal-malpractice action; if it does not, then it was entitled to a dismissal or a summary judgment. Section 6-5-572(2) provides this definition: Nelson argues that the AEA comes within this definition as a "professional association." We disagree. Under § 6-5-572(2), a "legal service provider" can be either: (1) a person licensed to practice law in the State of Alabama, or (2) a person engaged in the practice of law in the State of Alabama. Obviously, the AEA is not licensed to practice law in Alabama, so we must consider whether the AEA is "engaged in the practice of law," within the meaning of § 6-5-572(2). In order to ascertain the meaning of a statute, we look first to the plain meaning of the words written by the Legislature. Johnson v. Price, 743 So. 2d 436, 438 (Ala.1999). The plain meaning of the words used in § 6-5-572(2) indicates that the Legislature contemplated that the *1059 term "legal service provider" would include a professional corporation, association, or partnership itself; the members of a professional corporation, association, or partnership who are licensed to practice law within the State of Alabama; and others not licensed to practice law but who work in furtherance of the practice of law by a professional corporation, association, or partnershipsuch as "law clerks, legal assistants, legal secretaries, investigators, paralegals, and couriers." The members of the AEA are teachers, not lawyers; and the lawyers the AEA hires are not members of the AEA, but, instead, are employees of the AEA. The membership of the AEA does not consist of persons licensed to practice law in the State of Alabama. We note that throughout the ALSLA, the language used by the Legislature indicates that the Act was intended to apply to lawyers and law firms. For example, § 6-5-572(3)(a) sets out the "standard of care" a "legal service provider" is to observe: What standard of care would be applied to the AEA under this statute? We know of no other "legal service provider" that, in regard to the AEA, might be considered to be "similarly situated." Clearly this section contemplates that the ALSLA is to be applied only to lawyers and to law firms including professional corporations, associations, and partnershipswhose membership is composed solely of lawyers acting for the purpose of providing legal services. The plain language of § 6-5-572(2), as well as that of the other portions of the ALSLA, clearly indicates that the Legislature intended for the ALSLA to apply only to lawyers and to entities that are composed of members who are licensed to practice law within the State of Alabama. Because the AEA is not a lawyer or an entity whose membership is composed of lawyers, it cannot be held liable under the ALSLA. We have decided only the question of the AEA's liability under the ALSLA. Long seems to be arguing that any liability on her part is contingent on the AEA's also being liable under the ALSLA. However, the record indicates that the trial court has not fully addressed this issue. Therefore, we do not discuss in any way the question of Long's potential liability. As to Long, the appeal is dismissed. REVERSED AS TO THE DEFENDANT ALABAMA EDUCATION ASSOCIATION; APPEAL DISMISSED AS TO THE DEFENDANT LONG; AND CASE REMANDED. HOOPER, C.J., and COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] This action was originally filed against Corrie Haanschoten, who is now known as Corrie Haanschoten Long. [2] This motion was styled as a motion to dismiss, but the trial court later stated that it would treat the motion as one for a summary judgment. See Rule 12(b), Ala. R. Civ. P.

March 3, 2000

2efeaf76-ad57-4161-8815-36bbe0a8b196

Cp & B Enterprises, Inc. v. Mellert.

762 So. 2d 356

1971744, 1971779

Alabama

Alabama Supreme Court

762 So. 2d 356 (2000) CP & B ENTERPRISES, INC., d/b/a World Gym v. Kimberly MELLERT. Brad Rhoades v. Kimberly Mellert. 1971744 and 1971779. Supreme Court of Alabama. March 3, 2000. *357 William W. Watts III of Hudson & Watts, L.L.P., Mobile, for appellant CP & B Enterprises, Inc., d/b/a World Gym. Suzanne Paul of Paul & Smith, P.C., Mobile; Christ N. Coumanis of Briskman & Binion, P.C., Mobile; David G. Wirtes, Jr., of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile; Bruce J. McKee of Hare, Wynn, Newell & Newton, L.L.P., Birmingham; and Kenneth R. Raines of Wilkins, Bankester, Biles & Wynne, Bay Minette, for appellee. HOOPER, Chief Justice. Kimberly Mellert sued Brad Rhoades and his employer, CP & B Enterprises, Inc., d/b/a World Gym ("World Gym"). She alleged assault and battery and invasion of privacy based upon claims that she had been subjected to sexual harassment by Brad Rhoades while she was an employee of World Gym and was working at its place of business. Mellert also alleged negligence and wantonness on the part of World Gym in retaining Brad Rhoades as an employee; Mellert alleged that World Gym had retained Brad Rhoades as an employee although it had known of allegations that he had sexually harassed other females at the workplace. Mellert also sought to impose on World Gym vicarious liability for Brad Rhoades's actions. At trial, the court ruled that, as a matter of law, when the alleged harassment of Mellert occurred, Brad Rhoades was not acting in the line and scope of his employment or in furtherance of the business of *358 his employer; therefore, ratification was the sole ground upon which the question of World Gym's vicarious liability was submitted to the jury. The jury returned a verdict in favor of the plaintiff and against both defendants, assessing compensatory damages of $25,000 and punitive damages of $250,000. The court entered a judgment against both defendants, making each defendant liable for the full amount awarded by the jury. The defendants filed separate appeals.[1] We reverse and remand. The evidence presented at trial indicated that Charles Rhoades and Pamela Rhoades were the sole stockholders in the corporation that did business as World Gym. The corporation began operation of a fitness center in May 1995. The Rhoadeses' son, Brad Rhoades, was installed as director of operations for World Gym. The business hired Mellert on a part-time basis in June 1995 to work in the nursery. In February 1996, Mellert was hired to work full-time as the front-desk receptionist. Mellert testified that while she was working part-time at the gym, Brad Rhoades made offensive comments to her, saying, for example, that she "had a great body," that she "had a nice rear end," and that "he wanted to have sex with [her]." Mellert also testified that Brad threatened her that if she did not have sex with him her job would be endangered, and she testified that he told her that if she told what he had said no one would believe her. Mellert stated that after she began working full-time, Brad's conduct escalated to offensive touchings, including rubbing against her breasts, putting his hand up her shorts, and kissing her. These physical touchings, she said, all occurred within one week. Mellert testified that after Brad kissed her, she told Shelley Beall, World Gym's general manager, and that Ms. Beall stated that she "would handle it." Mellert said she also told James Andress, the comptroller, about Brad's conduct. Mellert testified that Andress told her that "he had known of other things that have happened like this and he would handle it." Mellert said that after she had these discussions with Beall and Andress, Brad's work schedule was rearranged so that he would not be alone with Mellert in the gym. Mellert left World Gym in April 1996. Mellert's testimony was disputed by Brad Rhoades. He denied putting his hand up her shorts, and he testified that any conduct between them was consensual and that the kiss was mutual. C.B., a former aerobics-exercise instructor at World Gym, testified that Brad subjected her to offensive comments and touchings from May to December 1995. She testified that Brad attempted to kiss her several times and exposed himself to her several times. She testified that on one occasion Brad took off all his clothes while they were alone in the aerobics room. C.B. testified that she told Dolly Banks, the assistant manager, about Brad's conduct and that Banks "laughed and said she [could] believe it." C.B. also testified that in July 1995 she told Andress about Brad's conduct. Beall, Banks, and Andress had a meeting with Charles and Pamela Rhoades, at which they discussed the allegation that Brad had exposed himself to C.B. Banks testified that, about the time of that meeting, she had revealed that Brad had also made offensive sexual comments to her. After the meeting, Beall was supposed to investigate the "rumors" about Brad's exposing himself or committing other sexual impropriety at the gym. Beall orally reported back to the Rhoadeses that she thought the exposure had happened while Brad and C.B. were involved in a "relationship" and that the Rhoadeses should not worry about it. C.B. left her employment with World Gym in December 1995. *359 H.S., a member at the gym, testified that during the fall of 1995 Brad exposed himself to her. H.S. stated that she reported this incident to Andress and that Brad later indicated to her that his parents knew about the incident. Another member at World Gym, S.K., who had been formerly employed as the director of Gymnastics World, a separate business owned by the Rhoadeses, but located in the same building as World Gym, testified that Brad made sexual comments to her on several occasions during June 1995. S.K. left her employment with Gymnastics World in July 1995. In January 1996, World Gym instituted what it called an "improved" sexual-harassment policy; that policy prohibited dating between employees and prohibited any discussions of a sexual nature by employees within the facility. Charles Rhoades testified that he believed this policy was instituted as a direct result of Brad's prior conduct. However, Brad was never reprimanded, suspended, fired, or otherwise punished for his conduct. Brad testified that at the time of the trial he was still employed as World Gym's director of operations. World Gym raises six issues on appeal. However, because of our resolution of one issue, we need not address the other issues. World Gym contends that the trial court erred in submitting to the jury a verdict form that prevented the jury from awarding punitive damages against Brad Rhoades only. The verdict form provided the jury with three alternatives: 1) to find in favor of the plaintiff and against both defendants, with a blank for both compensatory and punitive damages to be filled in; 2) to find in favor of the plaintiff and against only the defendant Brad Rhoades, with a blank for both compensatory and punitive damages; or 3) to find in favor of both defendants. World Gym argues that the verdict form should have provided the option of finding against both defendants but awarding punitive damages against Brad only. The trial court overruled World Gym's objection to the verdict form, on the grounds that joint tortfeasors are jointly and severally liable for damages awards. World Gym argues that, from the evidence, the jury could have found that World Gym was only negligent and that its culpability did not rise to the level required for an award of punitive damages. However, the jury was not given this option; the verdict forms did not permit the jury to find World Gym liable for compensatory damages only, while finding Brad Rhoades liable for both compensatory and punitive damages. Mellert contends that the trial court did not abuse its discretion in submitting this verdict form to the jury. She argues that the defendants were joint tortfeasors and that under Alabama law, punitive damages are not apportionable among joint tortfeasors, either according to fault or otherwise. Further, Mellert contends, she presented clear and convincing evidence indicating that World Gym had acted wantonly and presented clear and convincing evidence supporting the imposition of vicarious liability; therefore, she argues, the jury's award of punitive damages against World Gym was supported by the evidence. The jury was charged that it could award damages against World Gym, based on a theory of vicarious liability, on Mellert's claim alleging an assault and battery by Brad and on her claim alleging that he had violated a right of privacy. The court also charged the jury that it could award damages against World Gym for its own actions, based on Mellert's claims that it had negligently or wantonly hired, supervised, and retained Brad Rhoades as an employee. Given the evidence in this case, a finding for the plaintiff on any of these causes of action would carry a possibility of a punitive-damages award, with the exception of the negligence claim. As an initial matter, we must determine whether World Gym's objection to the verdict form was properly preserved for our review. While instructing the jury, the trial court read the verdict forms it was submitting to the jury. The verdict form under which the jury found World Gym liable was described by the court as follows: (R. 623-24.) The second alternative verdict form would have allowed the jury to find in favor of World Gym and against Brad Rhoades only. The third form would have allowed the jury to find in favor of both World Gym and Brad Rhoades. Before the court gave its jury instructions, World Gym objected to the verdict form: (R. 590-92.) (Emphasis added.) World Gym objected again, before the court charged the jury: (R. 593-94.) After the jury had been charged, World Gym again objected to the jury form: (R. 630.) These objections were sufficient to preserve the issue for review. World Gym appears to be objecting to the verdict forms for two reasons: 1) that they did not permit the apportionment of punitive damages based on the culpability of each defendant and 2) that they did not provide the jury the discretion to determine whether to award punitive damages against only one defendant when separate causes of action are alleged against each defendant. The trial court correctly held that punitive damages cannot be apportioned among joint tortfeasors. See Robbins v. Forsburg, 288 Ala. 108, 110-11, 257 So. 2d 353, 355 (1971) (holding that "Alabama does not allow apportionment" among joint tortfeasors "even in actions where the damages recoverable are punitive"). However, it is clear that World Gym did assert that, because the plaintiff had stated separate causes of action against the two defendants, a fourth alternative form was necessary in order to provide the jury the opportunity to award punitive damages against one defendant and not the other. We do not consider this to be a matter of apportioning an award of punitive damages, but, rather, a matter of providing the jury the discretion to determine whether an award of punitive damages against a particular defendant is appropriate based on the cause of action upon which the defendant is found liable. In Hill v. Norfolk Southern Corp., 619 So. 2d 221 (Ala.1993), after the trial court had completed its oral charge to the jury, the plaintiffs stated their objection to the verdict form in the following manner: 619 So. 2d at 222. This Court then stated that this statement by the plaintiffs' counsel made it clear that the plaintiffs had desired special verdict forms and made it clear why they wanted such forms. This *362 Court reversed a judgment based on a verdict for both defendants. We conclude that if an objection to a verdict form is specific enough to indicate why the party is objecting, then the issue whether the verdict form was proper is preserved for review. World Gym did not present the trial court with a written objection or with a written proposed verdict form of its own. However, we have found no precedent for the proposition that a party objecting to a verdict form must provide a written proposed verdict form of its own in order to preserve the issue for review. Rule 51, Ala. R. Civ. P., provides, in pertinent part: Thus, it appears that a party must submit written additional instructions for the court to give the jury only upon a request by the court. World Gym's objections to the jury verdict forms were sufficient to preserve the issue for review. We agree with World Gym that the trial court erred in failing to provide a verdict form that adequately addressed the issues raised. The claims against World Gym based on its own alleged negligence or wantonness were independent of the claims based on Brad Rhoades's actions and for which the plaintiff sought to impose on World Gym vicarious liability. The jury could have found that World Gym had been negligent in hiring, supervising and retaining Brad Rhoades, but that its conduct was not sufficient to support the plaintiffs theory of vicarious liabilitythat World Gym had ratified Brad Rhoades's actions. However, the jury was not given the opportunity to determine that World Gym was only negligent and that its conduct did not warrant an award of punitive damages. A finding by the jury that World Gym was only negligent in hiring, supervising, and retaining Brad Rhoades would not warrant an award of punitive damages. See Tuscaloosa County v. Barnett, 562 So. 2d 166, 169 (Ala.1990); Bradley v. Walker, 207 Ala. 701, 703, 93 So. 634, 635 (1922) ("`Punitive damages are not recoverable for simple negligence, but the recovery in such case is for compensatory damages.'"). In addition, even where a party's conduct would warrant an award of punitive damages, the jury has the discretion whether to award punitive damages. See Alabama Power Co. v. Rembert, 282 Ala. 5, 6, 208 So. 2d 205, 206 (1968) (holding that the trial court erred when it instructed the jury "that it should assess punitive damages against appellants if appellants were guilty of wantonness"). Thus, even if the jury found that World Gym was wanton in hiring, supervising, and retaining Brad Rhoades, the jury should have been given the freedom to determine whether World Gym's conduct rose to the level of culpability necessary to impose punitive damages. Instead, the jury was forced to impose punitive damages on World Gym if it wanted to impose punitive damages on Brad Rhoades. Mellert correctly asserts that historically Alabama has not allowed the apportionment of punitive damages among joint tortfeasors. See Robbins, supra; Bell v. Riley Bus Lines, 257 Ala. 120, 57 So. 2d 612 (1952). However, the issue in this case is not the "apportionment" of punitive *363 damages per se. Instead, the issue is whether the charge to the jury allowed the jury to find World Gym liable for punitive damages under a cause of action that does not support an award of punitive damages, while finding Brad Rhoades liable under a cause of action that does support the award of punitive damages. It is possible that the jury would have found World Gym and Brad Rhoades liable under separate causes of action. A finding of negligence on the part of World Gym would not support an award of punitive damages, and a finding of liability on the wantonness claim would merely give the jury the discretion to award punitive damages. Mellert relies on Hare v. Patterson, 598 So. 2d 795 (Ala.1992), to support her argument that the trial court did not abuse its discretion in determining which verdict forms to submit to the jury. Hare was a wrongful-death action in which the trial court submitted two verdict forms to the jury, one by which the jury could find for the plaintiff and another by which the jury could find for the defendant. After the court had charged the jury, the plaintiff Hare objected to the court's failure to give separate verdict forms by which the jury could find in favor of the plaintiff on a negligence theory or in favor of the plaintiff on a wantonness theory. Hare indicated that because the jury had been instructed on contributory negligence, it might become confused and associate the contributory-negligence charge with the wantonness claim. The jury found in favor of the defendant. This Court held that the verdict forms given by the trial court were not misleading and that the trial court did not err in declining to change them in response to Hare's objection. Hare is distinguishable from this present case because Hare involved only one defendant. The jury in Hare presumably found that the defendant was not liable under either a negligence theory or a wantonness theory. However, if the jury in Hare had found in favor of the plaintiff and had awarded damages, it is clear that punitive damages would have been appropriate under either the negligence theory or the wantonness theory, because Hare was a wrongful-death case. See Lance, Inc. v. Ramanauskas, 731 So. 2d 1204, 1221 (Ala.1999) (noting that "this Court has, under the crushing weight of 150 years of stare decisis, consistently held that our wrongful-death statute allows for the recovery of punitive damages only"). In the present case, it is not clear under what theory the jury found World Gym liable; therefore, we cannot determine whether the punitive damages were properly awarded against World Gym. This Court has previously held that "[t]he law does not require any particular verdict form, so long as [the form submitted to the jury] responds substantially to the issues raised." Dardess v. SouthTrust Bank, 555 So. 2d 746, 750 (Ala.1989) (citing Whitmore v. First City Nat'l Bank of Oxford, 369 So. 2d 517, 521 (Ala.1979)). In Dardess, SouthTrust Bank sued Dardess on a promissory note, and Dardess counterclaimed, alleging breach of contract. The trial court gave the jury instructions as to two alternative verdicts: The jury could find in favor of SouthTrust on its complaint and against Dardess on his counterclaim, or it could find in favor of Dardess on his counterclaim and against SouthTrust on its complaint. This Court stated that the instruction and verdict did not respond to the issues raised in the case, because, under the facts presented, the jury could have found for SouthTrust on its claim on the note and for Dardess on its counterclaim alleging breach of contract. Thus, the failure to give the jury the third option was reversible error. In Hill v. Norfolk Southern Corp., 619 So. 2d 221 (Ala.1993), the driver of an automobile sued a railroad and an engineer, seeking damages for injuries sustained in a collision at a railroad crossing. This Court held that the trial court erred in failing to submit to the jury a verdict form that would have allowed it to return a verdict against the railroad without returning a *364 verdict against the engineer of the train. In that case, after the court completed its oral charge to the jury, the plaintiff objected to the court's failure to provide the jury an opportunity to find against the railroad company only and not against the engineer. The plaintiff argued that a reasonable construction of the evidence would support a finding that the engineer was not guilty of any negligence or wantonness but that some other employee was; therefore, the plaintiff argued, the railroad could still be liable even if the engineer was not. The court overruled the objection, and the jury found in favor of both defendants. This Court held that the trial court's error was not harmless, because of the possibility that the jury returned a verdict in favor of both defendants simply because it did not want to return a verdict against the engineer for an accident that was not caused by his negligence. This case is like Hillalthough the evidence called for an additional alternative verdict form, "the trial court [gave the jury] no alternative." 619 So. 2d at 222. It is possible that, rather than award no punitive damages and let Brad Rhoades get away without punishment, the jury may have returned a verdict awarding punitive damages against both defendants because it had no alternative that allowed it to award punitive damages against Brad Rhoades and only compensatory damages against World Gym. In Hoffman v. Chandler, 431 So. 2d 499 (Ala.1983), the trial court submitted three alternative verdict forms to the jury, but this Court held that the trial court erred in failing to submit a fourth alternative. In that case, the plaintiff sued an ERISA trust and the two trustees, alleging breach of fiduciary duty and willful misconduct in their nonpayment of insurance benefits due under the benefit plan. A default had been entered against the Trust, and the three alternative verdict forms permitted the jury to find 1) against the Trust and in favor of both of the trustees; 2) against the Trust and against both trustees; or 3) against the Trust and to "have a hung jury and mistrial" as to the two trustees. 431 So. 2d at 504. This Court held in Hoffman that the trial court should have permitted the jury to find in favor of one individual trustee and against the other. The trial court's failure to offer this alternative constituted reversible error. In its holding, this Court stated: 431 So. 2d at 505. (Citation omitted.) Similarly, in this present case, under the pleadings and the proof offered, it is possible that the jury could have found that World Gym was merely negligent in its actions; such a finding would not support a punitive-damages award. The jury was not afforded the opportunity to make that finding. Furthermore, even if the jury found World Gym liable under the wantonness theory, it should have been given the discretion not to award punitive damages against World Gym, while awarding punitive damages against Brad Rhoades. For these reasons, the verdict forms submitted to the jury did not "respond[ ] substantially to the issues raised" by the evidence. Dardess, 555 So. 2d at 750. Therefore, the judgment of the trial court against World Gym is reversed and the cause is remanded. Because we are reversing the judgment against World Gym, we must also reverse *365 the judgment against Brad Rhoades. At common law, the reversal of a judgment as to one defendant required reversal as to all defendants because "a joint judgment was regarded as an entirety." Alabama Power Co. v. King, 280 Ala. 119, 124, 190 So. 2d 674, 679 (1966). This "rule of entirety" has been modified in cases where the judgment is several in effect and the interests of the parties are distinct; however, the modification has "never been applied where it might work an injustice to one party defendant if the judgment were to be affirmed as to him while reversed as to one or more of the joint defendants. In such case the power exists, in the ends of justice, to reverse the judgment in its entirety." 280 Ala. at 125, 190 So. 2d at 680. The claims against Brad Rhoades and World Gym are so intertwined as to be inseparable; therefore, our reversal of the judgment against World Gym necessitates a reversal as to Brad Rhoades. It would be unfair to leave one defendant liable for the entire amount of a judgment rendered against both defendants. In addition, a new trial for World Gym alone could lead to inconsistent judgments. 1971744REVERSED AND REMANDED. 1971779REVERSED AND REMANDED. MADDOX, HOUSTON, SEE, and BROWN, JJ., concur. LYONS, JOHNSTONE, and ENGLAND, JJ., concur as to case no. 1971744 and dissent as to case no. 1971779. LYONS, Justice (concurring in part and dissenting in part). I concur except as to Part V, which reverses the judgment as to Brad Rhoades. In this sexual-harassment case, Rhoades was potentially liable for assault and battery and breach of privacy, intentional torts for which punitive damages were recoverable in the discretion of the jury. World Gym was potentially liable on two theoriesvicarious liability for ratifying Rhoades's wrongful acts and direct liability for its own negligence or wantonness in retaining Rhoades as an employee. The trial court denied World Gym's request for a verdict form that would have permitted the jury to deal separately with World Gym's liability for punitive damages. As the majority opinion points out, from the evidence the jury could have found World Gym not liable on the theory of ratification but liable on the theory that it had negligently retained Rhoades as an employee. Such a finding would have made any punitive-damages award against World Gym inappropriate. Or, from that same evidence, the jury could have found World Gym liable on the theory that it wantonly retained Rhoades as an employee, but that World Gym's wantonness did not justify a punitive-damages award identical to the punitive-damages award the jury wished to impose against Rhoades for his separate torts of breach of privacy and assault and battery. But, the jury forms did not allow the jury to separate World Gym's liability for punitive damages from Rhoades's liability for punitive damages. The jury returned a verdict against both defendants, assessing $25,000 in compensatory damages and $250,000 in punitive damages. The court entered a judgment on that verdict. The majority reverses the judgment in its entirety, even as to Rhoades. Its rationale for reversing as to World Gym is that "the jury was forced to impose punitive damages on World Gym if it wanted to impose punitive damages on Brad Rhoades." 762 So. 2d at 362. To be sure, Rhoades could have argued on appeal that the verdict form prejudiced him as well, because, for all that appears, the high punitive-damages award may have been based on a desire by the jury to punish World Gym for wantonness in retaining Rhoades, although, at the same time, if a separate verdict form had allowed it the latitude to do so, the jury may have determined that a substantially smaller award would be sufficient to punish him, or, in its *366 discretion, it may have determined not to award punitive damages against him. However, on appeal Rhoades merely adopted the briefs of World Gym. Those briefs offer no reason for reversing the judgment as to Rhoades. The majority relies on Alabama Power Co. v. King, 280 Ala. 119, 190 So. 2d 674 (1966). In that case the trial court's judgment held two automobile drivers and the power company jointly liable, based on a finding that they had caused the plaintiffs' house to burn as a result of an automobile's colliding with a power pole. On appeal, this Court determined that as to the power company the complaint should have been dismissed for a failure to aver negligence against the defendant. The automobile drivers argued on appeal that the negligence charged against them individually and the resulting damage to the plaintiffs were "not sufficiently conjoined as to cause and effect as to support a cause of action." 280 Ala. at 124, 190 So. 2d at 679. This Court reversed the entire judgment, pretermitting any discussion of the argument made by the individual defendants, who had in fact filed briefs asking for a reversal as to them. The Court stated that the pleadings and the proof rendered the claims against the power company and the two individual defendants "so intertwined as to be inseparable." 280 Ala. at 124, 190 So. 2d at 679. Here, the majority reverses as to World Gym, accepting its argument of separabilitythat the causes of action against it and the individual defendant are separable not an argument of inseparability, and then reverses as to Rhoades even though Rhoades, unlike the automobile drivers in King, makes no separate argument that he was the victim of any injustice. I respectfully dissent as to Part V. JOHNSTONE and ENGLAND, JJ., concur. [1] On appeal, Brad Rhoades has adopted the briefs filed by World Gym.

March 3, 2000

90a507b0-585f-4dea-a7e9-e7426e19eaa2

Burns v. Marshall

767 So. 2d 347

1971823

Alabama

Alabama Supreme Court

767 So. 2d 347 (2000) Beatrice BURNS v. Grady MARSHALL, Jr. 1971823. Supreme Court of Alabama. March 24, 2000. *348 Wesley H. Blacksher, Mobile, for appellant. *349 Gary D. Porter, Mobile, for appellee. BROWN, Justice. Beatrice Burns offered for probate a document she contended was the last will and testament of Grady Marshall, Sr. It was contested by Grady Marshall, Jr. Burns appeals from a judgment based on a jury verdict in favor of the contestant. We reverse the judgment of the probate court. Following the death of Grady Marshall, Sr. ("Grady Sr."), on March 3, 1997, Beatrice Burns ("Beatrice") petitioned to probate the document she offered as his will. Grady Marshall, Jr. ("Grady Jr."), the decedent's son, filed a contest, alleging that the will was invalid because, he contended, his father's signature on that will was, in fact, a forgery. Alternatively, Grady Jr. contended that the will was invalid on the basis that his father had lacked the testamentary capacity to execute a will, and he contended that the will did not express the true intent of Grady Sr. Pursuant to § 43-8-190, Ala.Code 1975, a jury trial was held in the Probate Court of Mobile County. The probate judge denied Beatrice's motion for a directed verdict and submitted the case to the jury. The jury returned a general verdict in favor of Grady Jr. The probate judge subsequently denied Beatrice's motion for a JNOV or for a new trial and entered a judgment in favor of Grady Jr. The following evidence was presented: Grady Sr. was born on May 28, 1916. He was married to Nettie Burns. He served in the military forces during World War II. He and Nettie lived in Mobile; she was a teacher, he was the neighborhood junk man. Grady Sr. had one son, Grady Jr., and a stepson, Willie Burns. Grady Jr. lived in Laurel, Mississippi; Willie Burns lived in Prichard. Following his wife's death in 1992, Grady Sr. lived alone, at his home in Mobile. Grady Sr. was considered to be "a strange character," but mentally competent. In January 1995, Grady Sr. experienced some breathing difficulties and was taken to the emergency room of a local hospital. He was released later that day. His medical records while at the hospital indicated that while at the hospital he was alert and oriented as to person, place, and date. Several months later, the Mobile County Department of Human Resources ("DHR") became concerned that Grady Sr. was not spending his money appropriately. As a result of his spending practices, he lacked the funds to pay his basic living expenses. Cartia Mosley, an employee of DHR, was assigned to investigate the situation. She visited with Grady Sr. on a number of occasions. In her opinion, Grady Sr. was mentally competent; he was able to inform Mosley who his relatives were and how to contact Grady Jr. in Mississippi. When Mosley attempted to convince Grady Sr. that he needed to pay his bills before making other expenditures, he told her that it was his money and that he would spend it as he pleased. Mosley then contacted Grady Jr. and apprised him of the situation with his father. Mosley recommended that Grady Sr.'s Social Security check be sent to a responsible relative willing to use the money to pay Grady Sr.'s bills. Grady Sr. and Grady Jr. agreed to this plan, and the Social Security checks were sent to Grady Jr. Despite this, Grady Sr.'s financial problems continued, and his utilities were turned off on several occasions. On March 3, 1995, Grady Sr. executed a durable power of attorney and appointed his niece, Alice B. Nelson, as his attorney-in-fact. Beatrice is the daughter of Grady Sr.'s stepson Willie Burns. She testified that she had regarded Grady Sr. as her grandfather. During 1995, she saw Grady Sr. regularly because he often drove over to check on some property he owned near where she lived with her fiancé, Albert Rogers. Beatrice, who worked two jobs, delivered food to Grady Sr.'s house six times per week. At some point, Grady Sr. began receiving notices from the city concerning the condition of his yard. Beatrice *350 telephoned Grady Jr. and asked for his help in taking care of the matter. Instead, Grady Jr. came to Mobile and talked to DHR about the possibility of having his father put in a nursing home. During May 1995, Grady Sr. again experienced difficulty breathing and, on two occasions in that month, was taken to the emergency room of a local hospital. Grady Sr.'s medical records indicated that on the first of those emergency-room visits, which came on May 6, he was oriented as to person. The other visit came on May 31; the medical records related to that visit indicated that he was oriented as to person, age, and place, but not as to the date. Upon discharge, Grady Sr. was instructed to make a follow-up visit to the Stanton Road Medical Clinic in a week. On July 8, 1995, Grady Sr. drove to Prichard, as he frequently did. Grady Sr. went first to a place of business known as Al's Tires, owned by Albert Rogers. Grady Sr. asked Albert to walk next door with him to Memorial Funeral Home. At the funeral home, Grady Sr. visited with the owner, Bishop Cornelius Woods, while Rogers remained in a reception area. Grady Sr. told Woods that he wanted to prepare a will. Grady Sr. stated that he wanted to leave $500 to his son Grady Jr.; $500 to his stepson, Willie Burns; and the remainder of his estate to Beatrice. According to Woods, Grady Sr. stated that he wanted to leave most of his estate to Beatrice because she was the only person taking care of him. Woods, who had known Grady Sr. for over 40 years, helped Grady Sr. draft a simple will, then had his niece type up the final version. At that point, Albert Rogers was called into the room and was asked to witness Grady Sr.'s signing the will. Both Rogers and Woods signed as witnesses. Both testified that they believed Grady Sr. was of sound mind when he signed the will and that he executed the will freely and voluntarily. Mary Love, Woods's sister, notarized the men's signatures; Grady Sr. and Rogers then left the funeral home. The will was left with Woods for safekeeping. In 1996, doctors determined that Grady Sr. was suffering from Alzheimer's disease. On September 1, 1996, the Mobile County Probate Court appointed Beatrice as his guardian. Beatrice became the named payee on Grady Sr.'s Social Security check. Grady Sr. also received a monthly check from the Department of Veterans Affairs; it continued to be issued in his own name. Beatrice used the proceeds of the Social Security check for Grady Sr.'s expenses; Grady Sr. kept the proceeds of his veteran's check and spent it as he wished. On March 3, 1997, Grady Sr. died. According to Beatrice, she did not telephone Grady Jr. to tell him of his father's death, because, she said, Grady Sr. had instructed her not to do so. Beatrice also testified that she knew nothing about Grady Sr.'s will until Bishop Woods announced during the funeral that he had possession of it. Beatrice stated that Grady Sr. was "hardheaded" and did what he wanted to do. She acknowledged that she had been the beneficiary of a $3,000 policy insuring the life of Grady Sr.; however, she testified, the entire proceeds of the policy were used to pay for Grady Sr.'s funeral. Although Beatrice, as the appellant, raises three issues, the dispositive issue is whether Grady Jr. presented sufficient evidence to withstand Beatrice's motions for a directed verdict and for a JNOV.[1] A motion for a directed verdict and a motion for JNOV test the sufficiency of the evidence in the same way. Berryhill v. Barnett, 590 So. 2d 343 (Ala.Civ.App. 1991). Smith v. Vice, 641 So. 2d 785, 786 (Ala. 1994). Because the jury returned a general verdict in favor of Grady Jr., we must address each of the three grounds he raised as the basis for his will contest. The proponent of a contested will has the burden of making a prima facie showing that the will is valid, by offering testimony showing the execution of the will by the testator and the attestation of the will by the witnesses, as prescribed by Alabama law. Anderton v. Latham, 342 So. 2d 779, 780 (Ala.1977). Once the proponent presents prima facie proof of the validity of the will, the contestant must then come forward with evidence indicating that the testator did not sign the will or evidence indicating some other reason not to probate the will. Id. As the proponent, Beatrice offered the testimony of Albert Rogers and Bishop Woods, the two witnesses to the will, as well as the testimony of Mary Woods Love, the notary public who notarized the signatures on the will. Rogers and Woods testified that Grady Sr. indicated to them that he was executing his will and that he then signed the will. Rogers testified that after the three of them had signed the will, Mary Love came in and notarized the will. However, Mary Love, the sister of Bishop Woods, testified that she witnessed the signatures of Grady Sr. and his two witnesses, before affixing her notary seal to the will. Love testified that she was acquainted with all three men and saw no need to ask for any identification before notarizing Grady Sr.'s will. She stated that if her signature on the will was slightly different from her usual signature, it was because she had cut her finger earlier and, as a result, had been experiencing difficulty in writing. Grady Jr. maintained that his father's signature was a forgery. He also questioned the validity of Mary Love's signature. He offered no expert testimony concerning the validity of either signature. Instead, he submitted copies of the durable power of attorney executed by Grady Sr. in March 1995, an "Affidavit for Nonfiling Income Tax" that Grady Sr. had executed in 1990, and a tax-return list for real and personal property that Grady Sr. had signed in 1993 and 1994, for comparison against the signature on the 1995 will. Grady Jr. also offered a copy of Mary Love's notary-public paperwork in support of his contention that the signatures on the will were forgeries. An "acknowledgment" is a formal admission, before an officer, by one who has executed an instrument that the instrument is his act and deed. Jemison v. Howell, 230 Ala. 423, 161 So. 806 (1935). The testimony of a notary public that the attestation and acknowledgment of an instrument are in his handwriting is sufficient evidence of execution. This Court stated in Jordan v. Conservation & Land Co., 273 Ala. 99, 134 So. 2d 777 (1961): 273 Ala. at 102, 134 So. 2d at 779. Because the jury returned a general verdict in favor of the contestant, we do *352 not know whether the jury determined that the signature purporting to be Grady Sr.'s signature was a forgery. We have examined the record, including each of the documents containing the signature of Grady Sr. The signatures offered by Grady Jr. do not constitute substantial evidence indicating that the signatures on the 1995 will were, in fact, forgeries. Compare Peterman v. Auto-Owners Ins. Co., 623 So. 2d 1059, 1061 (Ala.1993) (summary judgment in favor of defendants reversed; plaintiff presented substantial evidence indicating that the signature on the personal indemnity agreement was not his, by offering the testimony of a handwriting expert who determined that the signature on the agreement was not the plaintiffs). A presumption of undue influence arises when: (1) there is a confidential relationship between a favored beneficiary and the testator; (2) there is a dominant and controlling influence by the beneficiary over the testator; and (3) there is undue activity in procuring the execution of the will. Ex parte Baker, 709 So. 2d 7, 9 (Ala.1997); Allen v. Sconyers, 669 So. 2d 113, 117 (Ala.1995). In order to prevail on a claim of undue influence, a party must establish each of these elements. Sessions v. Handley, 470 So. 2d 1164, 1166 (Ala. 1985). There is no question that a confidential relationship existed between Grady Sr. and Beatrice, his favored beneficiary. The evidence is not quite so clear whether Beatrice had a dominant and controlling influence over Grady Sr. The evidence established that Grady Sr. was a strongwilled person, but that he depended upon Beatrice to provide him with daily meals and to make sure that his basic needs were attended to. However, there was also evidence indicating that when Grady Sr. executed a durable power of attorney in March 1995, he did not appoint Beatrice as his attorney-in-fact, but appointed his niece, Alice B. Nelson. Moreover, there was evidence indicating that Grady Jr. controlled his father's financial affairs during at least a part of 1995. Cartia Mosley testified that she spoke with Grady Jr. during the DHR investigation of Grady Sr.'s ability to care for himself. At Ms. Mosley's suggestion, Grady Sr. agreed to have his Social Security check sent to Grady Jr. so that Grady Jr. could see to it that his father's monthly bills were paid. Furthermore, when Grady Sr. had to be taken to the emergency room in May 1995, it was Grady Jr. who spoke to hospital and DHR officials regarding the possibility of having his father put in a nursing home. It was not until 1996more than one year after the will was executedthat the probate court appointed Beatrice as Grady Sr.'s guardian, thus granting her control over all his household, medical, and financial affairs. In short, Grady Jr. failed to present substantial evidence indicating that Beatrice exercised a dominant and controlling influence over Grady Sr. at the time he executed his 1995 will. Moreover, Grady Jr. also failed to present substantial evidence indicating that Beatrice played an active role in procuring the execution of Grady Sr.'s 1995 will. Beatrice did not accompany Grady Sr. when he executed the new will. Indeed, the evidence established that on July 8, 1995, Grady Sr. drove by himself to Albert Rogers's business. He asked Rogers to go with him to see Bishop Woods. Although he did not know the purpose of Grady Sr.'s visit to Woods, Rogers agreed to Grady Sr.'s request. There was no evidence to indicate that Beatrice had any knowledge of Grady Sr.'s intent to make a new will until after he had executed the new will. "`There must be evidence, in addition to the fact of relationship, of active interference in procuring the execution of the will.'" Sessions v. Handley, 470 So. 2d at 1167 (quoting Arrington v. Working Woman's Home, 368 So. 2d 851 (Ala.1979)). "Evidence [offered to support a claim of] undue influence must provide at *353 least a reasonable inference rather than mere suspicion." Jackson v. Davis, 398 So. 2d 242, 245 (Ala.1981). Grady Jr. failed to present substantial evidence indicating that Beatrice exerted undue influence over Grady Sr. Beatrice also contends that Grady Jr. failed to present substantial evidence indicating that Grady Sr. lacked testamentary capacity. To have testamentary capacity, one must possess Ex parte Baker, 709 So. 2d 7, 10 (Ala.1997) (quoting Bolan v. Bolan, 611 So. 2d 1051, 1057 (Ala.1993)). Every person is presumed to have the capacity to make a will. Smith v. Vice, 641 So. 2d at 786. Grady Jr. presented evidence indicating that his father was diagnosed with Alzheimer's disease in 1996, approximately one year after he had executed the 1995 will, and that a guardian had to be appointed for him in September 1996. Grady Jr. also offered testimony from a clinical psychologist who examined Grady Sr. in 1996. It was the psychologist's opinion that Grady Sr. had probably been suffering from some degree of Alzheimer's disease for at least a year before he was diagnosed. Beatrice, however, offered evidence indicating that Grady Sr. had continued to live by himself. She offered the testimony of various persons who encountered Grady Sr. on an almost daily basis as he drove himself around the Mobile area to visit acquaintances and to check on his property. Albert Rogers testified that on July 8, 1995, Grady Sr. appeared to be in full possession of his faculties. According to Rogers, on that date Grady Sr. arrived at his place of business and asked Rogers to go next door with him to see Bishop Woods at the Memorial Funeral Home. Bishop Woods, who had known Grady Sr. for over 40 years, testified that Grady Sr. came by almost every day to have coffee with him. He testified that Grady Sr. appeared to be of sound mind on July 8, 1995. Woods testified that Grady Sr. was not an educated man and that he had asked for help in wording his will so that it would reflect his wishes. Grady Sr. told Woods that he wanted to leave $500 each to his son Grady Jr. and his stepson Willie Burns, with the remainder of his estate going to Beatrice Burns. According to Woods, Grady Sr. told him that he wanted his will drawn up this way because Beatrice was the person who had taken care of him and had seen to his needs. After the will was typed up, Woods and Rogers witnessed it and Mary Love notarized the signatures. Everyone present testified that they believed that Grady Sr. was fully aware of what he was doing, and that they believed he executed the will freely and without coercion. Moreover, although Grady Sr.'s medical records reflected various visits to the emergency room in 1995 and showed varying degrees of orientation, no evidence indicated that on the day Grady Sr. executed the will he lacked testamentary capacity. To the contrary, the evidence established that Grady Sr. knew the property he was about to bequeath, the objects of his bounty, and the disposition he wished to make. We hold that Grady Jr. failed to present substantial evidence indicating that his father lacked testamentary capacity when he executed his 1995 will. Because Grady Jr. failed to present substantial evidence of forgery, undue influence, or lack of testamentary capacity, the probate court should have directed a verdict for Beatrice Burns. Therefore, the judgment of the probate court is reversed and a judgment is rendered in favor of Beatrice Burns. *354 REVERSED AND JUDGMENT RENDERED. HOOPER, C.J., and HOUSTON, COOK, SEE, JOHNSTONE, and ENGLAND, JJ., concur. [1] Rule 50, Ala.R.Civ.P., has renamed the "motion for a directed verdict" as a "motion for a judgment as a matter of law," and has renamed the "motion for a judgment notwithstanding the verdict" as a "renewed motion for a judgment as a matter of law."

March 24, 2000

8b0d6e26-26be-40ae-98b5-c8088ee93a7f

Ex Parte People's Comm. Bank of Ashford

775 So. 2d 819

1980763

Alabama

Alabama Supreme Court

775 So. 2d 819 (2000) Ex parte PEOPLE'S COMMUNITY BANK OF ASHFORD. (Re Farmers Cooperative of Ashford, Inc. v. People's Community Bank of Ashford). 1980763. Supreme Court of Alabama. March 24, 2000. *820 Jerry M. White and William W. Nichols of Lee & McInish Attorneys, Dothan, for petitioner. Brian Dowling, Dothan, for respondent. SEE, Justice. Farmer's Cooperative of Ashford (the "Co-op") sued People's Community Bank of Ashford (the "Bank"), alleging that the Bank had improperly received insurance proceeds and money from the sale of crops that, the Co-op alleges, should have been paid to it because of a security interest it claims in the crops. The Bank moved for a summary judgment, arguing that the Coop had no enforceable security interest in, and therefore no priority to, any of the disputed crops or the proceeds of those crops. The trial court agreed and entered a summary judgment in favor of the Bank. *821 The Court of Civil Appeals reversed and remanded, holding that the evidence created a genuine issue of material fact as to the priority of the security interests. See Farmers Cooperative of Ashford, Inc. v. People's Community Bank of Ashford, 775 So. 2d 817 (Ala.Civ.App.1998). Because we hold that the Co-op did not establish an enforceable security interest in the crops, and, therefore, that the Co-Op has no specific claim to the disputed proceeds, we reverse and remand. In January 1996, the Bank lent Russell Jody Harper $150,000 for crop-production expenses. In return, Harper gave the Bank a security interest in certain collateral. Specifically, Harper signed a security agreement that described the collateral as: Based on that security agreement, the Bank filed a financing statement in the probate court. The financing statement described the collateral as: The Bank also filed a financing statement with the secretary of state. All three of these documents referenced farms 1996, 2002, 2014, 2058, 2121, 2139, and 2233 as the "more particular description of where the [collateral] crops are to be grown." The Co-op alleges that in May 1996, in order to purchase soybean seed, fertilizer, and chemicals on "open accounts," Harper gave the Co-op a security interest in the crops grown on nine other farms. Harper, however, did not sign a security agreement, nor were any other documents produced that granted the Co-op a security interest in the crops. Nevertheless, the Co-op filed in the probate court a financing statement that represented that the Co-op had a security interest in the nine other farms. Specifically, the financing statement reads, in pertinent part, Harper also signed and filed with H & H Insurance Agency ("H & H") an "Assignment of Indemnity" advising Cigna Property and Casualty Company that he was assigning to the Bank any rights and interest to any indemnity payment payable to him under an insurance policy covering his 1996 crops. Sometime later, the Co-op alleges, Harper asked an H & H agent to obtain a release from the Bank for the nine farms identified in the financing statement regarding the assignment of the crop insurance so that the Co-op could be added in the Bank's place. The crop-insurance contract, however, was never amended, and it lists the Bank as the only loss payee. In 1996, Harper sold some of his crops, apparently paying off part of his Bank loan *822 with some of the proceeds.[1] Harper also suffered crop losses that year and filed a claim with Cigna for his losses. After Cigna deducted unpaid premiums from the claimed losses, it issued a check made payable to both Harper and the Bank in the amount of $11,315.00. Harper endorsed the check over to the Bank. In January 1997, the Co-op sued the Bank,[2] alleging that the Bank had improperly received money from the sale of crops and from insurance proceeds that, the Coop alleges, should have been paid to the Co-op because of its alleged security interest. The Bank moved for a summary judgment, arguing that the Co-op had no enforceable security interest in, and no priority with respect to, any crops or proceeds of crops from any of Harper's farms. The trial court agreed and granted the Bank's motion for summary judgment. The Court of Civil Appeals reversed and remanded, holding that the evidence created a genuine issue of material fact as to the relative priorities of the security interests in the crops. When reviewing a trial court's ruling on a motion for summary judgment, this Court applies the same standard the trial court applies in ruling on the motion. See Ex parte Amoco Fabrics & Fibers Co., 729 So. 2d 336, 339 (Ala.1998) (citing Ex parte Lumpkin, 702 So. 2d 462, 465 (Ala. 1997)). Thus, we must determine whether the evidence before the trial court created a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. See Rule 56(c)(3), Ala. R. Civ. P.; Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988). "When the movant makes a prima facie showing that those two conditions have been satisfied, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact." Ex parte Amoco Fabrics & Fibers Co., 729 So. 2d at 339 (citing Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989)). "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.'" Id. at 339 (quoting West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989)). The Bank argues that the trial court correctly granted its motion for summary judgment because, it says, Harper did not sign a security agreement granting the Co-op a security interest in the disputed crops. Thus, the Bank concludes, the Co-op's alleged security interest was not enforceable and the Co-op had no right to the crops or to insurance proceeds. The Court of Civil Appeals did not address this issue, concluding instead that, because the Bank's security interest and the Co-op's security interest covered crops grown on different farms, there was a genuine issue of material fact as to the relative priorities of the security interests. See Farmers Cooperative of Ashford, 775 So. 2d at 819. This distinction, however, is material only if the Co-op had a security interest in any of Harper's crops. If the Co-op had no security interest in any of the crops, then it has no specifically enforceable claim against the disputed proceeds and the trial court properly entered the summary judgment in favor of the Bank. The enforceability of a security interest is governed by Ala.Code 1975, § 7-9-203, which in 1996 read as follows: (Emphasis added.) Thus, a security interest is not enforceable unless (1) the debtor has signed a security agreement;[3] (2) value has been given; and (3) the debtor has rights in the collateral. The Co-op presented no evidence indicating that Harper ever signed a security agreement.[4] The only evidence offered by the Co-op was a financing statement, signed by Harper, that the Co-op had filed in the probate court. A financing statement, however, is ineffective unless it is supported by a valid security agreement. See In re Metzler, 405 F. Supp. 622, 625 (N.D.Ala.1975). "`A security agreement and financing statement serve[] entirely different purposes. One creates a security interest and the other, if properly filed, perfects the security interest against the rights of certain third parties.'" Metzler, 405 F. Supp. at 625 (quoting In re L.B. Knight, Bankruptcy Ct. Decisions 173 (N.D.Ala. Dec. 28, 1973)) (emphasis added in L.B. Knight). As the Supreme Court of Iowa has explained, "The cases uniformly hold that a financing statement does not ordinarily create a security interest. It merely gives notice that one is or may be claimed." Kaiser Aluminum & Chemical Sales, Inc. v. Hurst, 176 N.W.2d 166, 167 (Iowa 1970). While it is possible for a financing statement and a security agreement to be one and the same document, "[a] financing statement which does no more than meet the requirements of [Ala. Code 1975, § 7-9-402,] will not create a security interest in the debtor's property." Evans v. Everett, 279 N.C. 352, 358, 183 S.E.2d 109, 113 (1971) (citing General Elec. Credit Corp. v. Bankers Commercial Corp., 244 Ark. 984, 429 S.W.2d 60 (1968)). Although it is not necessary to use "magic words" in order to create a security interest, there must be evidence of the parties' intention to create a security interest. See Evans, 279 N.C. at 358, 183 S.E.2d at 113. Because there is no evidence in the record of a signed security agreement and because the financing statement does not evidence an intention to create a security interest,[5] the Co-op has no specifically enforceable claim against the disputed proceeds and the trial court properly entered the summary judgment in favor of the Bank. The Court of Civil Appeals erred in reversing the Bank's summary judgment. Accordingly, we reverse the judgment of *824 the Court of Civil Appeals and remand the case to that court. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] It is unclear from the record how much money Harper realized from the sale of his crops, and the record gives no indication of how much of this money Harper applied toward paying off his bank loan. [2] The Co-op also sued Harper and H & H. However, the claims against those defendants are not presently before this Court. [3] Section 7-9-203(1)(a) provides that the debtor need not sign a security agreement if the collateral is in the possession or control of the creditor. Here, because the crops were neither in the control or the possession of the Co-op, a security agreement was essential to the creation of a valid security interest. [4] We note that "a separate formal document entitled `security agreement' is not always necessary to satisfy the signed-writing requirement of [U.C.C.] § 9-203(1)(b)." In re Numeric Corp., 485 F.2d 1328, 1331 (1st Cir. 1973). Instead, "[a] writing or writings, regardless of label, which adequately [describe] the collateral, [carry] the signature of the debtor, and [establish] that in fact a security interest was agreed upon, would satisfy both the formal requirements of the statute and the policies behind it." Id. [5] The Co-op makes no arguments to this Court concerning this issue, apparently conceding that the financing statement was not intended to create a security interest.

March 24, 2000

ecf4e052-83ca-4d40-a95a-527c5663721b

Ex Parte Martin

775 So. 2d 202

1972036

Alabama

Alabama Supreme Court

775 So. 2d 202 (2000) Ex Parte James Ruben MARTIN. (Re James Ruben Martin v. Marjorie I. Martin.) 1972036. Supreme Court of Alabama. February 18, 2000. Rehearing Denied May 26, 2000. *203 David A. McDowell of McDowell, Faulk & McDowell, Prattville, for petitioner. J. Myron Smith and Kimberly P. Griffin, Prattville, for respondent. JOHNSTONE, Justice. We granted the petition for a writ of certiorari filed by James Ruben Martin to determine whether the Court of Civil Appeals erred in affirming the trial court's judgment upon sale for division of real property, in declining to review the trial court's treatment of certain appraisal evidence, and in affirming the trial court's denial of James's request for an attorney fee. Martin v. Martin, 775 So. 2d 197 (Ala.Civ.App.1998). The Court of Civil Appeals also reversed an aspect of the judgment of the trial court denying James's request for an accounting. Neither party has petitioned us to review this aspect of the decision of the Court of Civil Appealsthe aspect regarding the accounting. The pertinent facts follow. James's parents, Marjorie I. Martin and William Howard Martin, purchased the subject property in 1973. Their grantors conveyed the property in fee simple to Marjorie and William. In 1976, Marjorie and William conveyed the property in fee simple to Marjorie herself and their sons James and Michael. The deed provides, in pertinent part, as follows: Marjorie and William both signed the deed, and a notary public notarized their respective signatures. In 1980, Marjorie leased the property to Carl West. Marjorie received each monthly lease payment of $400. She did not divide or share any $400 monthly lease payment with James until 1995, when, upon his demand, Marjorie paid James $100 per month for four months. In 1996 James petitioned for a sale for division of the property. James named Marjorie, Michael, and Carl West as defendants. In his petition, James asserted that he, Michael, and Marjorie each owned a one-third interest in the property. He asserted also that Marjorie had converted the lease proceeds to her own use and benefit. James requested an accounting of all moneys generated from the lease, a sale of the property, a division of the sale proceeds, and an attorney fee. On the issue of ownership, Marjorie asserted to the trial court that certain extrinsic evidence proved she did not intend to convey her half interest when she joined William in executing the 1976 deed to herself and the couple's two sons James and Michael. She contended therefore that she had retained her half interest, that the deed had conveyed only William's half interest to herself and the two sons, that each son had thereby received only a one-sixth interest, and that the additional one-sixth interest she received in the conveyance increased her ownership to two-thirds. In a bench trial with evidence ore tenus, the trial court, over James's objections, admitted Marjorie's extrinsic evidence and accepted her argument. Accordingly, the trial court found that Marjorie owned a two-thirds interest in the property and that James and Michael each owned a one-sixth interest in the property. The trial court determined the value of the property to be $30,000 and ordered the sale of the property. The trial court denied James's requests for an accounting and an attorney fee. James filed a postjudgment motion challenging the allocation of ownership and the value placed on the property by the trial court. The trial court denied the motion. James appealed to this Court, which transferred his appeal to the Court of Civil Appeals pursuant to § 12-2-7, Ala. Code 1975. The Court of Civil Appeals, finding that the 1976 deed was ambiguous, concluded that the trial court had properly considered extrinsic evidence of the intent of Marjorie and William in executing the 1976 deed, had thereby properly held only William's interest to have been conveyed, and thus had properly allocated ownership of the property among James, Michael, and Marjorie. The Court of Civil Appeals further concluded that the trial court had properly denied James's request for an attorney fee. Accordingly, the Court of Civil Appeals affirmed those two aspects of the judgment. On the doctrine of waiver, the Court of Civil Appeals declined to review the trial court's treatment of the appraisal prepared by the court-appointed appraiser. The Court of Civil Appeals, however, concluding that the trial court had erroneously denied James's request for an accounting of the lease proceeds, reversed that aspect of the judgment and remanded the cause for further proceedings. As already mentioned, this aspect of the decision of the Court of Civil Appeals reversing the denial of an accounting is not before us. *205 Before us, on the issue of the allocation of ownership, the parties consistently maintain their same respective positions. James contends that the 1976 deed unambiguously conveyed to him a one-third interest in the property. Marjorie argues that ambiguity in the deed justified the consideration of extrinsic evidence, which proved that she did not intend to convey her existing half interest when she joined William in executing the 1976 deed. Marjorie argues that the 1976 deed conveyed only William's half interest in the property. The case followed by the Court of Civil Appeals in concluding that the deed is ambiguous is Financial Investment Corp. v. Tukabatchee Area Council, Inc., 353 So. 2d 1389 (Ala.1977). In that case we held: 353 So. 2d at 1391 (emphasis in original). After carefully examining the 1976 deed, we conclude that the deed is not of doubtful meaning and that the language of the deed is not ambiguous. The deed clearly identifies Marjorie as a grantor and contains no restriction on the interest that she is conveying to James, Michael, and herself. The plain language of the deed shows that Marjorie and William, joint owners, conveyed the entire property, Melton v. Watkins, 24 Ala. 433 (1854), to James, Michael, and Marjorie herself, and thereby conveyed to each of these three a one-third interest in the whole property. Therefore, the trial court erred in finding the deed to be ambiguous, considering extrinsic evidence of the intentions of Marjorie and William, and holding only William's half interest to have been conveyed. James contends also that the trial court abused its discretion when it disregarded the appraisal of the court-appointed *206 appraiser in determining a monetary value of the property. The Court of Civil Appeals declined to address this issue on the ground that James had failed to comply with Rule 28(a)(5), Ala. R.App. P., by failing to cite relevant legal authority in support of his contention. "When an appellant fails to argue an issue in [his] brief, that issue is waived." Boshell v. Keith, 418 So. 2d 89, 92 (Ala.1982). Consequently, the issue whether the trial court abused its discretion in determining the monetary value of the property is not before this Court. Id. See also Rule 39(a), Ala. R.App. P. ("[D]ecisions of the courts of appeals may be reviewed by the Supreme Court upon petition for writ of certiorari only after a court of appeals has overruled an application for rehearing directed to the point, issue, or decision complained of.") Last, James contends that the Court of Civil Appeals erred in affirming that portion of the judgment wherein the trial court denied his request for an attorney fee. Section 34-3-60, Ala.Code 1975, authorizes a trial court to award an attorney fee in a proceeding involving the sale for division of property and to tax such fee as costs of the action. The origin of this Code section was a statute adopted by the Legislature in 1903. Penney v. Pritchard & McCall, 255 Ala. 13, 18, 49 So. 2d 782, 785 (1950). The 1907 codification of this statute added the express condition that "the services must be for the common benefit of all." Id. (Emphasis added.) While some of the successive codifications, including the present one, have omitted the language that "the services must be for the common benefit of all," this Court has consistently maintained that condition on the trial judge's authority to award attorney fees pursuant to these codifications. Id. See, e.g., Irons v. Le Sueur, 487 So. 2d 1352, 1359 (Ala.1986): James's action is not "for the common benefit of all." Penney, supra. James's action is primarily for his benefit and, at best, incidentally for Michael's benefit, but pointedly to the detriment and at the expense of their co-owner Marjorie. James's action likewise does not satisfy the same condition as expressed in the words of Irons, supra, in that James's action does involve "controversy as to respective rights or interests of individual tenants in common." Thus James's action does not qualify for an award of an attorney fee under § 34-3-60. Penney, supra, 255 Ala. at 17, 49 So. 2d at 784. (Citations omitted.) This principle governs James's case. Thus the trial court did not err in denying an attorney fee. Consequently, we reverse that aspect of the judgment of the Court of Civil Appeals which affirms the trial court's allocation of the respective ownership interests in the property, but we affirm those aspects of the judgment of the Court of Civil Appeals which decline to review the trial court's treatment of the appraisal by the court-appointed appraiser and which affirm the trial court's denial of James's prayer for an attorney fee. We remand this cause for the entry of a judgment consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS. MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, and ENGLAND, JJ., concur.

February 18, 2000

32c30f25-bbce-4bd8-a08a-9574bf2504d5

Ex Parte Garner

781 So. 2d 253

1981307

Alabama

Alabama Supreme Court

781 So. 2d 253 (2000) Ex parte William GARNER III. (Re William Garner III v. State). 1981307. Supreme Court of Alabama. March 10, 2000. *254 David F. Holmes, Slocomb, for petitioner. Bill Pryor, atty. gen., and Cedric B. Colvin, asst. atty. gen., for respondent. ENGLAND, Justice. William Garner III was convicted in the Circuit Court of Geneva County, under two separate indictments, for unlawful distribution of a controlled substance, violations of § 13A-12-211, Ala.Code 1975. The two cases were consolidated for trial. Garner stipulated that his unlawful sales occurred within three miles of a school and within three miles of a public housing project owned by a housing authority. Garner was sentenced in each case to imprisonment for a term of two years plus five additional and consecutive years because the sales occurred within three miles of a school and five more additional and consecutive years because the sales occurred within three miles of a public-housing facility. Thus, Garner was sentenced in each case to 12 years' imprisonment. The two 12 year sentences were to run concurrently. The Court of Criminal Appeals affirmed Garner's convictions, but remanded his cases for resentencing and for assessment of additional mandatory fines. Garner v. State, 781 So. 2d 249 (Ala.Crim.App.1998). Section 13A-12-281, Ala.Code 1975, requires that, for each violation of § 13A-12-211, Ala.Code 1975, the trial court impose a mandatory fine of $1,000 for a first offense *255 and a mandatory fine of $2,000 for a second or subsequent offense. On remand, the circuit court sentenced Garner to a total of 22 years' imprisonment: two 2-year sentences that are to run concurrently, for Garner's violations of § 13A-12-211, Ala.Code 1975; two 5-year enhancements pursuant to § 13A-12-250; and two 5-year enhancements pursuant to § 13A-12-270. The four enhancements were to run consecutively to one another and to the two-year sentence. The Court of Criminal Appeals, on March 26, 1999, on the trial court's return to remand, affirmed, without an opinion. We granted certiorari review to determine whether the Court of Criminal Appeals erred in remanding this case for resentencing, even though the initial sentence had provided that in each of the two cases the enhancements were to be served consecutively. Section 13A-12-250 states: Section 13A-12-270 reads: The trial court, in its original sentencing order, directed that in each of his two cases Garner was to serve two years for the unlawful-distribution conviction and was to serve two additional five-year terms provided for by the enhancement statutes for selling a controlled substance within a three-mile radius of a school and within a three-mile radius of a public housing project. In each case, the trial court imposed a sentence totaling 12 years, the mandatory sentence called for by the provisions of §§ 13A-12-250 and 13A-12-270. In each case, the trial court did what was required by those statutes. Nothing in these statutes prevented the trial court from allowing the two 12-year sentences to run concurrently. The Court of Criminal Appeals has held that the enhancement terms called for by §§ 13A-12-250 and -270 "may not be served concurrently in an individual case," i.e., when the two enhancements are imposed as punishment for the same offense. See Nye v. State, 639 So. 2d 1383 (Ala. Crim.App.1993). In Fletcher v. State, 675 So. 2d 55 (Ala.Crim.App.1995), which the Court of Criminal Appeals relied on in remanding Garner's cases for resentencing, the defendant was convicted under one indictment containing two counts, each count alleging a separate offense. The sentences imposed for the separate offenses were both increased by application of the enhancement statutes. The Court of Criminal Appeals held that the additional terms of imprisonment imposed as enhancement in the one case could not be served concurrently with the additional terms imposed as enhancement in the other case. This present proceeding involves two separate cases (each alleging a separate offense) that were consolidated for trial. While the enhancement statutes require *256 that different enhancements for a single offense be served consecutively, the consecutive-service provisions of the enhancement statutes do not apply to convictions based on separate offenses. Sentences imposed for separate offenses whether those offenses are charged together in the same indictment or are charged separately in distinct indictments; and whether the charges alleging those separate offenses are tried together in the same trial or are tried in separate trials may be served concurrently, in the discretion of the trial judge. To the extent Fletcher v. State holds to the contrary, it is overruled. Thus, we hold that it is within the trial court's discretion to allow sentences imposed for separate offenses to run concurrently when §§ 13A-12-250 and 13A-12-270 apply. To the extent it ordered that the enhancement portions of Garner's sentence for the one offense be served consecutively to the enhancement portions of his sentence for the other offense, the judgment of the Court of Criminal Appeals is reversed. We affirm that part of the Court of Criminal Appeals' judgment ordering the trial court to impose the fine mandated by § 13A-12-211, Ala.Code 1975. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. 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.

March 10, 2000

a06a3659-fad2-4ff0-ae8d-97d77fd86e68

Ex Parte Lawrence

776 So. 2d 50

1990006

Alabama

Alabama Supreme Court

776 So. 2d 50 (2000) Ex parte Melisa Jessica LAWRENCE. (Re Melisa Jessica Lawrence v. State.) 1990006. Supreme Court of Alabama. May 5, 2000. Rehearing Denied June 30, 2000. *51 Mark John Christensen, Andalusia, for petitioner. Bill Pryor, atty. gen., and Andy S. Poole, asst. atty. gen., for respondent. HOOPER, Chief Justice. This appeal involves the introduction of evidence of the defendant's prior bad acts. Melisa Jessica Lawrence was convicted of second-degree theft. She formerly had worked for Mark King, an agent of State Farm Insurance Company. The indictment charged that in May 1997, as an employee of Mark King, she had received certain premium payments from customers and had failed to remit those payments to the company. Before her trial, Lawrence filed a request pursuant to Rule 404(b), Ala. R. Evid., for notice of evidence of other crimes, wrongs, or acts the prosecutor intended to introduce at trial. Rule 404(b) provides: (Emphasis added.) Pursuant to Rule 404(b), the prosecutor notified Lawrence's attorney that the State intended to introduce evidence of Lawrence's nine misdemeanor convictions in 1996 for negotiating worthless instruments. During the trial, Lawrence testified on direct examination that she had had no financial problems while she was working at the insurance company because during that time, she said, her mother was giving her money. On cross-examination, the prosecutor asked Lawrence about her convictions for negotiating worthless instruments. During re-direct examination, defense counsel elicited from Lawrence testimony that the worthless-check convictions occurred during a time when she was having marital problems and that some of the worthless checks were written to draw from a joint account that she said her former husband had closed without her knowledge. During re-cross-examination, the prosecutor asked Lawrence whether "this [was] the only time [she had] had this problem." Lawrence stated: "I am not saying that it happened all at one time there. It happened in a spread of a period of time." The prosecutor then questioned Lawrence about other instances of negotiating worthless checks, instances for which she had not been convicted, and which had occurred from 1991 to 1997. *52 Defense counsel objected to the questioning because the prosecutor had not provided notice, pursuant to Rule 404(b), that she intended to present evidence of any prior worthless-check instances that did not involve convictions. Defense counsel also moved for a mistrial, on the grounds that Lawrence had been substantially prejudiced by the jury's hearing the questions about other instances of Lawrence's writing bad checks. The prosecutor argued that there was no discovery violation because, the prosecutor said, she was attempting to rebut Lawrence's testimony in which Lawrence had explained her 1996 convictions. Specifically, the prosecutor claimed that Lawrence stated that she had negotiated worthless checks only during a specific period of time; therefore, the prosecutor argued, she should be permitted to show that the conduct had occurred over an extended period of time. The trial court listened to the examination of Lawrence and concluded that she had testified that her writing of bad checks had occurred "over a spread of time." The trial court agreed that the evidence regarding other instances of writing bad checks was not admissible as rebuttal evidence, but denied defense counsel's motion for a mistrial and gave the jury a curative instruction. The jury returned a verdict of guilty. The Court of Criminal Appeals, on August 20, 1999, affirmed, by an unpublished memorandum. Lawrence v. State, (No. CR-98-0847), 778 So. 2d 873 (Ala.Crim.App.1999) (table). We granted Lawrence's petition for certiorari review. We now affirm. Lawrence contends that the State was required to give notice, pursuant to Rule 404(b), Ala. R. Evid., before it could present evidence of prior instances of Lawrence's writing bad checks, regardless of how that evidence was used at trial. The interpretation of Rule 404(b) in this context presents an issue of first impression in Alabama. The State argues that it did not violate the discovery rules because, it says, the evidence was not offered under Rule 404(b) as substantive evidence in the State's case-in-chief, but was offered pursuant to Rule 404(a)(1) as rebuttal evidence. Rule 404(a) provides: The State argues that after having her credibility impeached under Rule 609 by proof of convictions involving dishonesty or false statement, Lawrence attempted to rehabilitate her own credibility by explaining the prior convictions. The State contends that this testimony was an attempt to convince the jury of her good character by implying that no similar activities had ever occurred. Therefore, the State contends, Lawrence placed her character in issue by her evidence and that the State therefore was entitled to rebut that character evidence by evidence regarding other instances of Lawrence's negotiating worthless checks. We disagree. Even if we assumed, as the State suggests, that Lawrence's testimony injected her character into the trial, the State would not be entitled to introduce evidence of specific bad acts to rebut that evidence. "Once the accused introduces evidence of good character, the door is opened for the prosecution to rebut with proof of the accused's bad character. However, the prosecution may not prove the accused's bad character by showing prior specific acts." Charles W. Gamble, McElroy's Alabama Evidence § 26.01(1) (5th ed. 1996). The State cites United States v. Roper, 135 F.3d 430, 433-34 (6th Cir.1998), wherein the court held that the defendant, "by pursuing his affirmative defense of entrapment and through his direct testimony," *53 injected his character into evidence, and that this fact authorized the prosecution to inquire into prior bad acts, without having given the notice contemplated by Rule 404(b). However, the State fails to take into account that an entrapment defense makes the accused's propensity for committing the kind of act charged an essential element of the State's proof and thereby opens the door to evidence of collateral relevant misconduct. Rule 405(b), Ala. R. Evid., specifically provides for this type of situation: "In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct." The Roper court acknowledged that evidence of the defendant's criminal history of previous cocaine sales was admissible pursuant to Rule 405(b), Fed. Evid., based on the defendant's entrapment defense. In addition, the Roper court stated that "the prosecutionat its first opportunity after becoming aware of the extent and substance of Roper's entrapment defense and his direct testimony disclaiming a criminal historyprovided notice to the court and the defendant of its intent to discredit his assertions by extrinsic, substantive evidence." 135 F.3d at 434. Rule 404(b) provides for notice to be given during the trial "if the court excuses pretrial notice for good cause shown." However, the prosecutor in this present case did not attempt to give notice during trial, nor did she show good cause for not giving pretrial notice. The State also cites Ex parte Woodall, 730 So. 2d 652 (Ala.1998), for the proposition that Lawrence's testimony put her character in issue. The State's reliance on Woodall is misplaced. In that case, this Court held that "even if the defendant had chosen to place his character in issue, by presenting evidence that it was good, the state generally would not be permitted to present evidence showing he was in fact guilty of committing prior specific uncharged bad acts." 730 So. 2d at 663. In addition, Woodall, in explanation, quoted, at page 663, McElroy's Alabama Evidence § 26.01(1): "Once the accused introduces evidence of good character, the door is opened for the prosecution to rebut with proof of the accused's bad character. However, the prosecution may not prove the accused's bad character by showing prior specific acts." Even if the evidence of Lawrence's other acts of negotiating worthless instruments had been admissible as rebuttal evidence, the State's failure to provide notice that it would offer such evidence renders it inadmissible. Rule 404(b), Ala. R. Evid., is identical to Federal Rule 404(b). The Advisory Committee Note to the 1991 Amendment of Rule 404(b) states: (Emphasis added.) The Advisory Committee Notes to the federal rules are persuasive authority in our interpretation of the Alabama rules. In addition, the Advisory Committee's Notes to our Rule 404(b) specifically refer to the federal rule, stating: Therefore, we hold that Rule 404(b), Ala. R. Evid., like Rule 404(b), Fed.R.Evid., requires that the prosecution "provide notice, regardless of how it intends to use the extrinsic-act evidence at trial, i.e., during its case-in-chief, for impeachment, or for possible rebuttal." *54 The State concedes that the Advisory Committee Note to Federal Rule 404(b) indicates that the prosecution must provide notice of other-acts evidence, regardless of how it intends to use that evidence at trial. However, the State argues that the notice requirement of Rule 404(b), Ala. R. Evid., should not be extended to every conceivable use of prior-bad-acts evidence. Rather, the State contends, "compliance with the notice requirement should be addressed in light of the State's reasonably anticipated intent to use prior-bad-acts evidence at the time notice was given." State's brief, p. 20. In this case, four days before the trial, Lawrence requested notice pursuant to Rule 404(b). The prosecution gave notice to Lawrence's attorney, on the day before the trial began, regarding the nine convictions. On the day of the trial, the prosecutor carried into the courtroom packets containing bad checks for which Lawrence had not been convicted, and she had them ready to use. The purpose of the notice requirement in Rule 404(b) is "to reduce surprise and promote early resolution on the issue of admissibility." Advisory Committee Note to 1991 Amendment, Rule 404(b), Fed. R.Evid. Regardless of whether the prosecutor had any intent to use the prior-bad-acts evidence at the time she gave notice, our Rule 404(b) requires that some notice be given, even "during trial if the court excuses pretrial notice on good cause shown." Rule 404(b), Ala. R. Evid. Therefore, at a minimum, the prosecutor should have given notice during trial, when it became apparent that evidence of the prior acts would be offered as rebuttal evidence.[1] The trial court would then have had the discretion to determine whether the prosecution had shown good cause for not giving notice before the trial and whether the evidence was admissible. Because the notice requirement serves as a condition precedent to the admissibility of Rule 404(b) evidence, the prosecutor's failure to give Lawrence notice renders that evidence inadmissible. Lawrence also raises the issue whether Rule 608(b), Ala. R. Evid., permits inquiry into a witness's specific instances of conduct, for impeachment purposes, despite the language of Rule 608(b) prohibiting such inquiries. However, the State contends that the evidence of Lawrence's other acts of negotiating worthless instruments was not offered as impeachment evidence pursuant to Rule 608(b). In addition, our holding that the evidence was made inadmissible by the prosecution's failure to provide notice precludes any need to discuss the issue regarding Rule 608(b). Because we have held inadmissible the evidence of Lawrence's prior acts of negotiating worthless instruments that did not result in convictions, we must determine the consequences of the prosecutor's questioning regarding that evidence. After concluding that the prior-acts evidence was inadmissible, the trial court denied Lawrence's motion for a mistrial and gave the jury the following curative instruction: The trial court then polled the jurors, and they all indicated affirmatively that they could ignore the references to the inadmissible evidence. Lawrence argues that the trial court's denial of a mistrial requires a reversal, based on this Court's holding in Ex parte Sparks, 730 So. 2d 113, 115 (Ala.1998). In Sparks, this Court reversed a conviction because the prosecutor had improperly elicited testimony about the defendant's prior convictions, in violation of the exclusionary rule, and it held that a curative instruction was not sufficient to overcome the prejudice in that case. The Sparks opinion stated: 730 So. 2d at 115. (Emphasis original.) (Citations omitted.) In Sparks, the defendant was on trial for charges of driving under the influence. The prosecutor asked him on cross-examination if he recalled having been convicted of DUI on a previous occasion. This Court found the question to be so highly prejudicial that it could not be corrected with a mere corrective instruction to the jury. 730 So. 2d at 116. "[A] mistrial is a drastic remedy, to be used only sparingly and only to prevent manifest injustice." Ex parte Thomas, 625 So. 2d 1156, 1157 (Ala.1993). A mistrial is an extreme measure that should be taken only when the prejudice cannot be eradicated by instructions or other curative actions of the trial court. Nix v. State, 370 So. 2d 1115, 1117 (Ala. Crim.App.), cert. denied, 370 So. 2d 1119 (Ala.1979). If an error can be effectively cured by an instruction, a mistrial is too drastic a remedy and is properly denied. Thompson v. State, 503 So. 2d 871, 877 (Ala.Crim.App.1986). The questions regarding Lawrence's prior bad acts were prejudicial, especially considering that these acts had not led to convictions. However, this case is distinguishable from Sparks because, in that case, the evidence of prior bad acts involved the same crime for which Sparks was on trial. This case is different from Sparks, in that the questions regarding Lawrence's prior acts of negotiating worthless instruments did not have the effect of suggesting that she committed *56 the charged offense. While the questions regarding the prior acts were prejudicial, in that they suggested motive and affected Lawrence's credibility, the evidence they called for would have been cumulative as to the evidence regarding nine convictions for negotiating worthless checks, evidence that was properly admitted. A trial court's ruling on a motion for a mistrial will be reversed only upon "a clear showing of abuse of discretion." Ex parte Jefferson, 473 So. 2d 1110, 1114 (Ala.1985). Considering the nature of the prior-acts evidence and the court's prompt and thorough curative instruction given to the jury, we cannot say the trial court abused its discretion in denying Lawrence's motion for a mistrial. AFFIRMED. MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] This approach is consistent with the plain language of Rule 404(b) and with the holdings of other courts. See United States v. Barnes, 49 F.3d 1144, 1148 (6th Cir.1995) (holding that once a defendant makes a request for notice of "other-crimes" evidence that the prosecution intends to use at trial, "the request imposes a continuing obligation on the government to comply with the notice requirement of Rule 404(b) whenever it discovers information that meets the previous request"); United States v. Spinner, 152 F.3d 950, 961 (D.C.Cir.1998) (holding that the prosecution should have given notice of its intent to introduce bad-acts evidence pursuant to Rule 404(b) after "something [arose] in the defense case that was unexpected").

May 5, 2000

cfd5367f-1dd7-41f0-80f1-827bd818e073

Ex Parte RDW

773 So. 2d 426

1980379

Alabama

Alabama Supreme Court

773 So. 2d 426 (2000) Ex parte R.D.W.[1] (Re R.D.W. v. State). 1980379. Supreme Court of Alabama. March 10, 2000. Robert C. King of Weaver & King, P.C., Monroeville, for petitioner. Bill Pryor, atty. gen., and Jean A. Therkelsen, asst. atty. gen., for respondent. PER CURIAM. R.D.W. was indicted on a charge of first-degree rape, a violation of Ala.Code 1975, § 13A-6-61. The jury found him guilty of the lesser-included offense of first-degree *427 sexual abuse, see Ala.Code 1975, § 13A-6-66, and the trial court sentenced him to 10 years' imprisonment. The Court of Criminal Appeals affirmed the conviction and sentence, with an unpublished memorandum. We granted certiorari review to consider whether the trial court erred by refusing to instruct the jury that certain out-of-court statements by the alleged victim had been taken without R.D.W.'s having been afforded the opportunity to cross-examine her. The evidence presented at trial tended to show the following. On July 7, 1996, R.D.W., who was 16 years old at the time, and his 7-year-old stepsister, M.W., were at a creek located near the home of M.W.'s father, with whom she was visiting for the week.[2] According to M.W., while they were at the creek, R.D.W. began kissing her on the lips, laid her on the ground, removed her clothing, and touched her "private parts." M.W. further testified that R.D.W. put his "private part" in her "private part." However, on cross-examination, M.W. testified that R.D.W. did not touch her "private part" with his "private part," and on redirect M.W. testified that she did not remember whether R.D.W. ever put his "private part" into her "private part." M.W.'s father testified that after the incident at the creek, M.W. told him that R.D.W. had tried to kiss her. When M.W.'s father asked R.D.W. what had happened at the creek, R.D.W. responded, "I'm not a child molester." M.W.'s mother reported the incident to the Department of Human Resources ("DHR") and later took M.W. to a DHR office, where M.W. was interviewed by a social worker and a sheriffs deputy. M.W.'s statements to the social worker and the deputy were to the effect that R.D.W. had had intercourse with her on July 7 and that he had fondled her and had had sexual intercourse with her the preceding summer. A friend of M.W.'s testified to the effect that she had seen R.D.W. fondle and have sexual intercourse with M.W. the preceding summer. M.W. was examined by a pediatrician less than two weeks after the charged incident was alleged to have happened. The pediatrician testified that M.W. had a small tear of her hymen and another vaginal injury that were consistent with forcible intercourse. The pediatrician, however, also testified that M.W.'s injuries could have been caused by something other than sexual abuse. R.D.W. testified that he had not kissed M.W. or touched her in any way other than to hug her around the neck. He denied ever having had sexual intercourse with M.W. R.D.W. was tried as an adult. After trial, the jury returned a verdict of guilty of the lesser-included offense of first-degree sexual abuse. The trial court sentenced R.D.W. to 10 years in the penitentiary. R.D.W. moved for a new trial, a judgment of acquittal, and/or arrest of judgment. The motions were denied by operation of law. R.D.W. appealed to the Court of Criminal Appeals, which affirmed the conviction and the sentence. R.D.W. argues that the trial court erred in refusing to instruct the jury that M.W.'s out-of-court statements were taken without his being afforded the opportunity to cross-examine her. At trial, M.W.'s mother, the social worker, the sheriffs deputy, and the pediatrician all testified concerning out-of-court statements made by M.W. as to what happened on July 7 or as to prior occasions on which R.D.W. may have been alleged to have had sexual contact with M.W. At the close of all the evidence, *428 R.D.W. requested, in writing, that the trial court give the following instruction: R.D.W.'s requested written instruction, although not verbatim, is substantially similar to the language of Ala.Code 1975, § 15-25-36, which provides: "The court shall inform the jury that the out-of-court statement was taken without the defendant being afforded cross examination of such out-of-court statement." The trial court refused to give R.D.W.'s requested jury instruction. Immediately after the trial judge had finished instructing the jury, and out of the presence of the jury, R.D.W.'s counsel made the following objection: In its unpublished memorandum, the Court of Criminal Appeals concluded, relying on Knight v. State, 710 So. 2d 511, 513 (Ala.Crim.App.1997), that this objection was insufficient to preserve as error the trial court's refusal to give R.D.W.'s requested written instruction. The Court of Criminal Appeals stated that R.D.W.'s objection "was basically a restatement of his requested jury charge" and that "[h]e did not state any ground of objection." The State likewise argues, based on Knight, that R.D.W. failed to preserve for appellate review the trial court's refusal to give the requested jury instruction. R.D.W., the State argues, did not object to the trial court's refusal to give his requested instruction, but simply renewed his request; thus, the State argues, R.D.W.'s objection was insufficient in that he did not state any specific grounds for including the instruction, but simply asserted that the requested jury instruction was a correct statement of law. The State also argues that § 15-25-36 does not apply to the facts of this case because, under the State's reading of the statute, a trial court is required to give the prescribed jury instruction only when the victim is unavailable to testify. Thus, the State argues, because M.W. and the other witnesses whose testimony is at issue testified at trial, R.D.W. was not denied his constitutional rights of confrontation and cross-examination. Finally, the State argues that even if the trial court erred by refusing to give R.D.W.'s requested jury instruction, that error was harmless because R.D.W.'s counsel cross-examined M.W. and the other witnesses at trial and because, the State says, R.D.W. has not demonstrated that the refusal "injuriously affected [his] substantial rights." Rule 21.3, Ala. R.Crim. P., provides in pertinent part that "[n]o party may assign as error the court's ... failing to give a written instruction, ... unless the party objects thereto[,] ... stating the matter to which he or she objects and the grounds of the objection." R.D.W.'s objection was sufficient under Rule 21.3. He objected to the trial court's failure to give the requested written instruction and stated as grounds for his objection the fact that the jury had not been instructed that M.W.'s out-of-court statements had been taken without his being afforded the opportunity to cross-examine her. These grounds, taken together with R.D.W.'s written request, were sufficiently specific for purposes of preserving this issue for appellate review, because they put the trial court on notice of the substance of the alleged error and thereby provided that court an opportunity to correct it. See Ex parte Pettway, 594 So. 2d 1196, 1200 (Ala. 1991); Ex parte McCall, 594 So. 2d 628, 631 (Ala.1991); Ex parte Washington, 448 So. 2d 404, 406 (Ala.1984); see also Ex *429 parte Works, 640 So. 2d 1056, 1058 (Ala. 1994) (opinion as modified on application for rehearing) ("The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury."); Finch v. State, 715 So. 2d 906, 912 (Ala.Crim.App.1997) ("An objection must be specific enough to put the trial court on notice of any alleged error and provide the court with an opportunity to correct any error if necessary."). The objection made by R.D.W.'s counsel differs from the objection involved in Knight. In Knight, the record showed that 710 So. 2d at 513. In contrast, R.D.W.'s stated ground for objection was not that the omitted instruction was a correct statement of law, but rather that the instruction given by the trial court was improper because it was incomplete.[3] While R.D.W.'s counsel did not specifically cite § 15-25-36, he did direct the trial court's attention to what the statute in substance requires. Thus, the trial court was sufficiently apprised of the ground for R.D.W.'s objection, and, therefore, R.D.W.'s objection was sufficiently specific for purposes of Rule 21.3, Ala. R.Crim. P. Accordingly, because the trial court refused to give R.D.W.'s written requested jury instruction, R.D.W.'s specific objection, that the trial court erred by failing to give the instruction prescribed by § 15-25-36, was preserved for appellate review. See Ex parte McCall, 594 So. 2d 628, 631 (Ala.1991) ("Counsel not only objected specifically, but stated the grounds of his objection, and the record clearly shows that the trial judge was aware of the objection and the reason counsel was requesting it. Under these circumstances, the error was preserved for appellate review."). A trial court's refusal to give a defendant's requested jury instruction "constitutes reversible error only if such instruction (1) was correct, (2) was not substantially covered by the [trial] court's charge, and (3) concerned a point in the trial which was so important that the failure to give the instruction seriously impaired the defendant's ability to defend himself." Dill v. State, 600 So. 2d 343, 353-54 (Ala.Crim.App.1991), aff'd, 600 So. 2d 372 (Ala.1992), cert. denied, 507 U.S. 924, 113 S. Ct. 1293, 122 L. Ed. 2d 684 (1993). R.D.W.'s requested jury instruction was in effect the instruction required by § 15-25-36. We find, after examining the record, that the substance of the statute was not fairly and substantially covered by the trial court in its oral charge to the jury. See Rule 21.1, Ala. R.Crim. P. We conclude that the trial court's failure to give the instruction required by § 15-25-36 "probably injuriously affected [R.D.W.'s] substantial rights" of confrontation and cross-examination. Rule 45, Ala. R.App. P. Our finding of probable injury is based on the plain language of § 15-25-36, which provides that the trial court "shall inform the jury that the out-of-court statement [made by a child alleged to have been the victim of sexual abuse] was taken without the defendant being afforded cross examination of such out-of-court statement." The mandatory language of the statute makes it clear that the Legislature has determined that this information is necessary to *430 a defendant's defense in a child-sexualabuse case. The State argues that § 15-25-36 does not apply in this case because the victim testified at trial and was cross-examined by R.D.W.'s trial counsel. We disagree. Nothing in the plain language of the statute supports such an exception. Moreover, Ex parte B.B.S., 647 So. 2d 709 (Ala.1994), is instructive. In Ex parte B.B.S., this Court addressed the admissibility of the State's hearsay evidence under the Child Physical and Sexual Abuse Victim Protection Act, codified at Ala.Code 1975, §§ 15-25-30 through -40. The child alleged to have been the victim of sexual abuse testified at trial and denied that the defendant had subjected her to any sexual contact; therefore, the State proved its case-in-chief with witnesses' testimony concerning the child's out-of-court statements indicating that the defendant had subjected her to sexual contact. This Court construed subsection (2)b. of § 15-25-32, which requires that, to be admissible, "[t]he child's out-of-court statement [be] shown to the reasonable satisfaction of the court to possess particularized guarantees of trustworthiness." This Court held that "the `trustworthiness' requirement applies to hearsay statements [of the child] whether the child testifies or not."[4]Id. at 715. Similarly, we conclude, based on the rationale of B.B.S., that § 15-25-36 applies whenever out-of-court statements of a child are admitted into evidence, whether the child testifies or not. Cf. Fortner v. State, 582 So. 2d 581, 586-87 (Ala.Crim. App.1990), cert. denied, 582 So. 2d 587 (Ala. 1991) (trial court gave jury instruction to the effect of § 15-25-36 where child testified at trial and was cross-examined by defense counsel). Accordingly, the trial court erred to reversal in refusing to give R.D.W.'s requested instruction. We conclude that R.D.W.'s objection to the trial court's refusal to give his requested instruction was preserved for appellate review and that the trial court's failure to instruct the jury as required by § 15-25-36 constituted reversible error. Therefore, we must reverse the judgment and remand the case to the Court of Criminal Appeals for it to remand for proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. BROWN, J., recuses herself.[*] [1] Pursuant to Rule 52, Ala. R.App. P., we have abbreviated the names of the defendant, the victim, and witnesses in an effort to preserve the anonymity of the victim. [2] M.W.'s mother and father are divorced, and her father has remarried. The defendant is the son of the father's second wife. M.W.'s father has visitation rights with her, including one week during the summer. [3] R.D.W. also argues that the requested instruction was a correct statement of the law. This, alone, is not a sufficient objection: "The ground that a jury instruction is a correct statement of the law is insufficient to preserve an objection to the trial court's refusal to give the instruction." Knight, 710 So. 2d at 513 (citing Jones v. State, 665 So. 2d 982, 985 (Ala.Crim.App.1995)). [4] This Court also held that subsection (2)b. had been incorrectly codified and that "it should have been codified as § 15-25-32(3), corresponding to the way the legislature enacted the provision." Id. at 715. This Court stated this rationale: "Although the question is not without difficulty, we think the Confrontation Clause, U.S. Const. amend. VI, requires that hearsay testimony should not be admitted without indicia of reliability, even if the declarant testifies. The hearsay allowed under the Act is not allowed because it has an inherent trustworthiness, but because of the difficulties presented by testimony of children of tender years. Without the `trustworthiness' requirement, the Act, if it were construed as codified, would allow rampant hearsay of dubious probative value simply because the child has testified." Id. at 714-15 (footnote omitted). [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

March 10, 2000

e8562600-f367-47ed-9143-d4af30cbc29b

Ex Parte Harold L. Martin Distributing Co.

769 So. 2d 313

1981921

Alabama

Alabama Supreme Court

769 So. 2d 313 (2000) Ex parte HAROLD L. MARTIN DISTRIBUTING COMPANY, INC., d/b/a Martin Food Mart No. 5. (Re Terry Joanne Williams v. Harold L. Martin Distributing Company, Inc., d/b/a Martin Food Mart No. 5; and Chevron U.S.A., Inc.) 1981921. Supreme Court of Alabama. March 17, 2000. *314 Deborah Alley Smith and James R. Bussian of Rives & Peterson, P.C., Birmingham, for petitioner. Lily Arnold Green, Hamilton, for respondent. COOK, Justice. Harold L. Martin Distributing Company, Inc., d/b/a Martin Food Mart No. 5 ("Martin"), sought certiorari review of a judgment of the Court of Civil Appeals, which reversed a summary judgment entered in its favor against Terry Joanne Williams. We granted review; we now reverse and remand. The operative facts out of which this action arose are set forth in the opinion of the Court of Civil Appeals: Williams v. Harold L. Martin Distributing Co., 769 So. 2d 305, 308 (Ala.Civ.App. 1999) (footnote omitted). Williams sued Martin and Chevron, alleging that Martin "had negligently constructed and negligently maintained a wheelchair ramp and adjacent curb and sidewalk and that its negligence had caused her to fall and be injured." Id. at 307. The trial court granted the defendants' motions for a summary judgment, and Williams appealed. The Court of Civil Appeals, with two Judges dissenting, reversed the judgment insofar as it related to Martin, but affirmed the summary judgment insofar as it related to Chevron. We granted Martin's petition for certiorari review to determine whether the judgment of the Court of Civil Appeals, as to Martin, is consistent with caselaw established by this Court.[1] We conclude that it is not. In this premises-liability case, the elements of negligence "`are the same as those in any tort litigation: duty, breach of duty, cause in fact, proximate or legal cause, and damages.'" E.R. Squibb & Sons, Inc. v. Cox, 477 So. 2d 963, 969 (Ala.1985) (quoting David G. Epstein, Products Liability: Defenses Based on Plaintiff's Conduct, 1968 Utah L.Rev. 267, 270). "The owner of a premises ... is not an insurer of the safety of his invitees[, such as Williams], and the principle of res ipsa loquitur is not applicable. There is no presumption of negligence which arises from the mere fact of an injury, to an invitee." Tice v. Tice, 361 So. 2d 1051, 1052 (Ala.1978). In order to overcome a defendant's properly supported summary-judgment motion, the plaintiff bears the burden of presenting substantial evidence as to each disputed element of her claim. See Ex parte Atmore Community Hosp., 719 So. 2d 1190 (Ala.1998); Mann v. Bank of Tallassee, 694 So. 2d 1375 (Ala. Civ. App., 1996). On the record before us, it is apparent that Williams failed to produce substantial evidence as to the cause in fact of her accident. Williams's theory of the case was that Martin had negligently constructed and maintained the "sidewalk, curb, and wheelchair ramp." In support of this theory, she presented the affidavit testimony of *315 her expert, Rud Robison, who, she says, "identified a number of very technical ways in which the area where [she] fell was not in compliance with the construction standards promulgated by the Americans with Disabilities Act[, 42 U.S.C. § 12101 et seq. (the `ADA')]." Brief of Respondent, at 2 (emphasis added). Williams further states: "It is certain and undisputed that [she] fell in the entrance-way to Martin's store. It is now for the jury to decide whether or not her fall was caused by the defects in the area that were identified by Rud Robison." Id. at 5. The fatal defect in Williams's case is that she failed to present evidence indicating that the "very technical ways" in which she says Martin failed to comply with the ADA were, in any way, involved in a chain of causation resulting in her fall. In fact, she could not identify the cause of her fall. In this connection, she testified by deposition as follows: (Clerk's Record, at 196-98.) (Emphasis added.) Williams also testified that nothing blocked her view of the curb. She stated that she was aware that curbs present an element of risk and that when encountering a curb she should take care to avoid injury. The unavoidable conclusion one must draw from Williams's testimony is that the cause of her fall is a matter of pure speculation. But Alabama juries are not permitted to speculate as to the cause of an accident. See Brookwood Medical Ctr. v. Lindstrom, 763 So. 2d 951 (Ala.2000); Turner v. Azalea Box Co., 508 So. 2d 253, 254 (Ala.1987) ("[w]hen evidence points equally to inferences that are favorable and to inferences that are unfavorable to the moving party, the evidence lacks probative value; and the evidence may not be used to support one inference over another because such use is mere conjecture and speculation"). Because she could not say howor ifthe "very technical ways" in which the wheelchair ramp was constructed contributed to her accident, Williams failed to present evidence sufficient to overcome Martin's summary-judgment motion. *316 This case is analogous to Tice v. Tice, 361 So. 2d 1051 (Ala.1978), in which this Court affirmed a summary judgment in favor of premises owners in a trip-and-fall action against them. In Tice, as in this case, the plaintiff "could not state the cause of her fall, only that she believed it must have been caused by stepping on one of the [child's] toys [that she admittedly knew was in the yard]." Id. at 1052 (emphasis added). The plaintiff in Tice "assert[ed] only that her fall may have been caused by toys, leaves or holes in the yard." Id. Because she could only speculate as to the cause of the accident, she could not present evidence of a defect of which the defendants should have been aware. Indeed, to hold defendants liable under the circumstances of Tice and those of this case would render premises owners virtual insurers of others' safety and would impose liability that is nearly absolute. No such rule can be deduced from our cases, and we decline to adopt one.[2] For these reasons, the trial court properly granted Martin's summary-judgment motion. Therefore, the judgment of the Court of Civil Appeals, to the extent it reversed the summary judgment, is reversed and the cause is remanded. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] Williams did not seek certiorari review of the Court of Civil Appeals' judgment as to Chevron. Therefore, her claims against Chevron are not involved in this case. [2] We also cannot agree with the majority of the Court of Civil Appeals that this case is analogous to Woodward v. Health Care Authority of the City of Huntsville, 727 So. 2d 814 (Ala.Civ.App.1998). In Woodward, there was no question as to what caused the plaintiff to fall. She tripped on a curb that was adjacent to a wheelchair ramp. Id. at 816. The accident happened at night, and the plaintiff testified that she was blinded by a light. Id. She alleged that the light was positioned over the ramp in such a manner that she did not see where the ramp dropped off. Id. at 816-17. Other differences in the cases were illustrated by Judge Thompson in his dissent in this case: "In Woodward, the plaintiff claimed that on a night when she was visiting the defendant's hospital for the first time, she tripped and fell over an unmarked curb. A flat wheelchair ramp had been cut into the sidewalk at the location of her fall. The plaintiff in Woodward testified in her deposition that as she exited the hospital's parking garage she encountered a bright light that shone in her face. The plaintiff testified that the contrast between the light in the parking garage and the light outside caused the walkway where she fell to give the appearance of `one massive area of cement.' "In the present case, Williams had visited [Martin's] gasoline station previously; in Woodward, the plaintiff had never before been to the defendant's hospital. Williams testified that her accident occurred at noon. In Woodward, the plaintiff fell at night, after allegedly being blinded by a bright light. Although it was an overcast day when Williams fell, the record contains no evidence of anything that might have obstructed her view, such as the alleged blinding effect of the light in Woodward." Williams v. Harold L. Martin Distributing Co., supra, 769 So. 2d at 312 (Thompson, J., dissenting) (citations omitted).

March 17, 2000

58ad6988-94c1-44d5-8791-73383f2c3312

Ex Parte Mayflower Nat. Life Ins. Co.

771 So. 2d 459

1981520, 1981569

Alabama

Alabama Supreme Court

771 So. 2d 459 (2000) Ex parte MAYFLOWER NATIONAL LIFE INSURANCE COMPANY and Ex parte Bill Heard Chevrolet Company. Re James E. Thomas and Dorothy L. Dixon v. Bill Heard Chevrolet Company et al. 1981520 and 1981569. Supreme Court of Alabama. May 5, 2000. Charles D. Stewart and David P. Donahue of Spain & Gillon, L.L.C., Birmingham, for petitioner Mayflower National Life Insurance Company. Robert A. Huffaker and William H. Webster of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery; and James R. McKoon, Jr., Phenix City, for petitioner Bill Heard Chevrolet Company. Kenneth L. Funderburk of Funderburk, Day & Lane, Phenix City; James P. Graham, Jr., Phenix City; and Wayne T. Johnson, Phenix City, for respondents. MADDOX, Justice. In separate mandamus petitions, Mayflower National Life Insurance Company ("Mayflower") and Bill Heard Chevrolet Company ("Heard"), defendants in an action pending in the Russell Circuit Court, ask this Court to direct the trial court to vacate its orders of December 21, 1998, and May 17, 1999, conditionally certifying classes of plaintiffs as to certain claims. Because we find from an examination of the record before us that the trial court failed to make the rigorous analysis the law requires in such a case, we grant the petitions and issue the writ. James E. Thomas sued Heard; one of its employees, Bill Bratton; and a number of fictitiously named defendants, stating several claims arising from Thomas's purchase of a 1985 Cadillac Deville automobile from Heard. Thomas subsequently added *460 Dorothy L. Dixon as a plaintiff and substituted Mercury Finance Company of Alabama ("Mercury") and Mayflower for two of the fictitiously named defendants. The most recent amended complaint stating the plaintiffs' causes of action appears to be their "Second Recasted and Amended Complaint," dated June 17, 1998. That complaint includes 18 counts. The majority of those counts appear to state claims on behalf of Thomas and Dixon only, but four of the counts, counts 15 through 18, state claims on behalf of putative classes. On December 21, 1998, the trial court entered an order granting conditional certification of two classes based on the allegations in the plaintiffs'"Second Recasted and Amended Complaint." The defendants filed various motions asking the court to reconsider its conditional certification of the classes. On April 22, 1999, the trial court held a hearing, and on May 17, 1999, it entered this amended certification order: Mayflower and Heard filed separate petitions for the writ of mandamus, asking this Court to direct the trial court to vacate that May 17, 1999, order and the December 21, 1998, order. The proper method for a party to challenge the certification of a class action is by a petition for the writ of mandamus. Ex parte Household Retail Services, Inc., 744 So. 2d 871, 875 (Ala.1999). "It is well established that mandamus is a drastic and extraordinary writ to be issued only where 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 Alfab, Inc., 586 So. 2d 889, 891 (Ala.1991). The requirements for the certification of a class are stated by Rule 23, Ala. R. Civ. P. A class will not be certified unless the four prerequisites of Rule 23(a) and one of the three prerequisites of Rule 23(b) are met. In Ex parte Equity National Life Insurance Co., 715 So. 2d 192 (Ala.1997), this Court, noting that it considers "federal authorities ... persuasive when [it is] interpreting Rule 23, Ala. R. Civ. P.", id. at 195, n. 2, held: Id. at 194-95. In addition, this Court stated: "Of course, the trial court must also explain how the proponents have satisfied at least one of the grounds provided in Rule 23(b)." Id. at 195, n. 3. See also Ex parte American Bankers Life Assurance Co., 715 So. 2d 186, 188 (Ala.1997) ("[E]very order [certifying a class] must provide a rigorous analysis of how the evidence supports the conclusion that the requirements of Rule 23 were met.); and Ex parte Green Tree Financial Corp., 723 So. 2d 6, 9 (Ala.1998) ("[A]t a minimum, [class-certification orders must] identify each of the four elements of Rule 23(a) and explain in detail how the proponents of the class have proven each of these elements, as well as at least one of the additional elements of Rule 23(b)."). We have considered the trial judge's order conditionally certifying[1] the underlying case as a class action, and we find, based upon our review of the briefs and the materials that are before us, that the trial judge failed to demonstrate that he had conducted a "rigorous analysis" of the evidence and that he failed to explain how the evidence supported his conclusion that the requirements of Rule 23 are met in this case. Consequently, we conclude that the petitions are due to be granted. The trial court is directed to withdraw its order of December 21, 1998, and its order *462 of May 17, 1999, amending that December 21, 1998, order conditionally certifying the class. The trial judge is directed to conduct such proceedings as he deems necessary to determine whether the proponents of class certification have met their burden of proving each of the four elements of Rule 23(a) and at least one element of Rule 23(b). Any future order of the trial court certifying a class must identify each of the four elements of Rule 23(a), Ala. R. Civ. P., and must provide a written rigorous analysis of how the proponents of class certification have met their burden of proving these elements. A certification order must also include a written rigorous analysis of how the proponents of class certification have met their burden of proving one of those elements of Rule 23(b), Ala. R. Civ. P. See Ex parte American Bankers Life Assurance Co., 715 So. 2d 186 (Ala.1997). PETITIONS GRANTED; WRIT ISSUED. HOOPER, C.J., and HOUSTON, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] The fact that the trial judge labeled his order as "conditional" did not relieve him from the obligation to conduct a "rigorous analysis" of the evidence and to provide a detailed explanation of his reasons for concluding that the evidence supports class certification. Ex parte American Bankers Life Assurance Co., 715 So. 2d 186, 191 (Ala.1997).

May 5, 2000

3955a84b-f0d8-4e0b-9fb4-ece2d1e5e3d5

Ex Parte King

776 So. 2d 31

1981993

Alabama

Alabama Supreme Court

776 So. 2d 31 (2000) Ex parte Charles KING, as administrator cum testamento annexo of the estate of Lear Idellar King, deceased. (Re Charles King, as administrator cum testamento annexo of the estate of Lear Idellar King, deceased v. Virginia Dare King Robinson et al.) 1981993. Supreme Court of Alabama. March 24, 2000. Rehearing Denied June 30, 2000. *33 Eric J. Breithaupt of Rives & Peterson, P.C., Birmingham, for petitioner. Stan Brobston of Brobston & Brobston, P.C., Bessemer, for respondents. HOOPER, Chief Justice. Charles King, as adminstrator c.t.a., obtained a default judgment in the Jefferson Circuit Court, Bessemer Division, against Virginia Dare Robinson. Robinson moved to set aside the default judgment, 83 days after it was entered. Judge Dan C. King set aside the default judgment, without a hearing and without giving Charles King an opportunity to be heard on the motion to set it aside. Charles King now petitions this Court for a writ of mandamus directing Judge King to vacate his order setting aside the default judgment. The petition is granted and the writ is issued. King filed a lawsuit in January 1998, stating claims based on theories of conversion, money had and received, legal malpractice, felonious injury, and conspiracy. The defendants, Virginia Dare Robinson; William G. Vietch; and Robinson's children, Deborah Crafts and Carl Beckman, moved in May 1998 to dismiss the complaint. The motion to dismiss was denied on August 17, 1998, and the defendants were given 30 days to file their answers. The defendants Virginia Dare Robinson and William G. Vietch did not file answers within the 30 days. In January 1999, Charles King moved for a default judgment against both Vietch and Robinson. Attached to his motion was the required certificate of service by which King certified that he had served both Vietch and Robinson through their attorney, Ralph Armstrong. Vietch filed a pro se answer to the complaint on the same day the default-judgment motion was served, but Robinson did not answer at all. The hearing on the default-judgment motion was set for March 19, 1999. Robinson's attorney was notified of the hearing by a fax communication sent by Judge King; this was the usual method for giving notice of such hearings in Judge King's court. In a letter dated March 9, 1999, Charles King's attorney wrote Ralph Armstrong, asking Armstrong if he still represented Vietch; he asked, he said, because Vietch had filed a pro se answer, but nothing further. This letter also reminded Armstrong of the March 19th hearing. Neither Robinson nor Armstrong, her attorney, appeared at the March 19, 1999, hearing, and the trial court entered a default judgment in favor of Charles King on April 7, 1999, and in that judgment made a certfication under Rule 54(b), Ala. R. Civ. P., to make that judgment final. The case action summary sheet reflects that a copy of the default judgment was sent to the attorneys involved in the case, and a copy went to Ralph Armstrong, along with a cost bill. Robinson filed a motion to set aside the default judgment on June 29, 1999-83 days after the default judgment had been entered and made final. Robinson's motion was granted, without a hearing, on July 6, 1999. Because an order setting aside a default judgment is interlocutory and, therefore, not appealable, the proper remedy to review the trial court's action in entering that order is a petition for a writ of mandamus. Ex parte State ex rel. Atlas Auto Finance Co., 251 Ala. 665, 38 So. 2d 560 (1948). The standard for issuing a writ of mandamus is well settled: Ex parte Johnson, 638 So. 2d 772, 773 (Ala. 1994). And see Ex parte Preston Hood Chevrolet, Inc., 638 So. 2d 842 (Ala.1994); and Ex parte Liberty Nat'l Life Ins. Co., 631 So. 2d 865 (Ala.1993). The standard of review this Court applies when considering a petition asking for a writ of mandamus requiring a judge to vacate an order setting aside a default judgment is whether the judge, in setting aside the default judgment, abused his discretion. See DaLee v. Crosby Lumber Co., 561 So. 2d 1086 (Ala. 1990); Hallman v. Marion Corp., 411 So. 2d 130 (Ala.1982). The default judgment against Virginia Dare Robinson was made final pursuant to Rule 54(b), Ala. R. Civ. P. Robinson had not answered, and she did not appear at the hearing on the motion for a default judgment. The trial judge found that she was in default and, based on its findings of facts, found that there was no just reason for delaying the entry of a judgment pending the determination of the case against Vietch. Robinson argues that the judgment against her is not in fact final and will not become final until the claims against William Vietch are disposed of, because the two are codefendants. Robinson cites Frow v. De La Vega, 82 U.S. (15 Wall.) 552, 21 L. Ed. 60 (1872), claiming that where the theory of recovery is one of joint liability, a recovery is not effective unless it is granted against all defendants. Robinson also relies on Aetna Casualty & Surety Co. v. McIntyre, 555 So. 2d 87 (Ala. 1989), in which this Court held that a default judgment could not be entered against one defendant for failure to appear, where that defendant's liability was based on a codefendant's liability. This Court stated: 555 So. 2d at 88. The case of Vietch and Robinson does not present a situation where, as a matter of law, neither defendant may be liable unless both are liable. In order to illustrate this point, we must examine the allegations underlying the claims. Apparently, Robinson's mother, Lear King, left Robinson and her brother, Troy King, property from her estate. Robinson received their mother's house, worth $40,000. Troy King received certificates of deposit worth between $10,000 and $20,000. Troy King never transferred those certificates into his name. Troy King died. Robinson agreed to deliver the certificates of deposit to the estate of Troy King but never did. Charles King, as administrator of Troy King's estate, moved to reopen Lear King's estate. Acting on behalf of the estate of Lear King, Charles King then went to the bank that had issued the certificates of deposit, only to discover that the certificates had been paid out. Charles King, in his complaint, alleges that Virginia Robinson went to the bank and, either by "posing as Lear I. King or by other fraudulent means, statements, or representations obtained a check payable to Lear Idellar King." The complaint further alleges that she then endorsed the check, delivered it to William Vietch, who also endorsed it and then deposited the funds into his attorney's trust account. The complaint alleges that Virginia Robinson then went back to the bank and told *35 the bank that the certificates of deposit that had belonged to King had been misplaced and had the bank "reissue certificates of deposit in the name of Virginia Robinson and/or deposit them into accounts in the name of Virginia Robinson and/or her children, Deborah K. Crafts and Carl Beckman." The trial court, in its default judgment, held that Robinson's actions, alone and without the assistance of Vietch, were sufficient to support the claims against her. This Court has recognized that a default judgment against one of several defendants is not a final order, unless it is made final by a certification pursuant to Rule 54(b), Ala. R. Civ. P. See Foster v. Greer & Sons, Inc., 446 So. 2d 605 (Ala.1984) (overruled on other grounds by Ex parte Andrews, 520 So. 2d 507 (Ala.1987)); Ford Motor Credit Co. v. Carmichael, 383 So. 2d 539 (Ala.1980). The trial court found that there was no just reason for delaying the entry of a final judgment against Robinson and entered the Rule 54(b) certification making the default judgment final, on April 7, 1999. According to Rule 55(c), Ala. R. Civ. P.: The trial court did not set aside the entry of default before certifying the default judgment as final, nor did the court on its own motion set aside the judgment within 30 days after making that judgment final. Robinson's motion to set aside the default judgment was filed 83 days after the entry of the default judgment. Therefore, the trial court lost its discretion to set aside the judgment pursuant to Rule 55(c) at the end of the 30th day after the court made the default judgment final. However, Robinson's motion to set aside the default judgment could be, and should have been, construed as a Rule 60(b) motion for relief from judgment. See Ala. R. Civ. P., comments to Rule 55(c) (Rule 60 becomes available when more than 30 days have passed since the entry of the judgment of default); Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So. 2d 600 (Ala.1988). Therefore, we will treat the July 6, 1999, order purporting to grant a Rule 55(c) motion to set aside a default judgment as, in fact, a ruling on a Rule 60(b) motion for relief from a judgment. In order for the trial court to properly grant Robinson's Rule 60(b) motion for relief from the default judgment, Robinson had to show not only one of the reasons for relief stated in Rule 60(b), but also that she has a meritorious defense to the complaint. See Sampson v. Cansler, 726 So. 2d 632, 633 (Ala.1998)("Although Kirtland involved a Rule 55(c) motion to set aside a default judgment, we also apply the Kirtland analysis to Rule 60(b) motions to set aside default judgments."); DaLee v. Crosby Lumber Co., 561 So. 2d 1086 (Ala.1990); Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., supra. In Kirtland, this Court held that a trial court, in ruling on a Rule 55(c) motion to set aside a default judgment, should not exercise its "discretionary authority under Rule 55(c) ... without considering the following three factors: 1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant's own culpable conduct." 524 So. 2d at 605. In DaLee, we stated that the defendant DaLee, seeking to set aside a default judgment, had to allege sufficient facts or produce enough evidence to counter the plaintiff's claims. *36 DaLee met this burden by attaching an affidavit and exhibits. We held that DaLee was not required to show that he would prevail on the merits of the plaintiff's claim, but to show that he was prepared to present a plausible defense. (However, this Court held that DaLee was not entitled to set aside the default judgment, because he had not proved one of the grounds stated in Rule 60(b)(1).) 561 So. 2d at 1090-91. See also Sampson v. Cansler, supra; Rooney v. Southern Dependacare, Inc., 672 So. 2d 1 (Ala.1995). In Kirtland, this Court explained the "meritorious-defense" requirement: 524 So. 2d at 606 (quoting Moldwood Corp. v. Stutts, 410 F.2d 351, 352 (5th Cir.1969)). In her motion, Robinson alleges no facts. She claims merely: "Defendant has a meritorious defense to the claims asserted in the Complaint." Robinson, in her brief to this Court, claims that her meritorious defense is found in her codefendant's answer filed in January 1999. However, Robinson did not mention this fact in her motion, and she had no attachments and no supporting affidavits with her motion. The trial court did not conduct a hearing. Because this contentionthat Robinson has a meritorious defensewas not properly raised before the trial court, that court could not properly have considered it when deciding whether to set aside the default judgment. In Fountain v. Permatile Concrete Products Co., 582 So. 2d 1069 (Ala.1991), this Court held that the defendant Fountain's failure to recite specific facts in his motion to set aside a default judgment rendered the conclusory allegations in his motion "insufficient as a matter of law to satisfy the meritorious-defense element." Id. at 1072 (emphasis added). Likewise, Robinson failed to recite any specific facts to support her claim that she has a meritorious defense. This failure renders her claim of a meritorious defense insufficient as a matter of law to satisfy that element of the Kirtland evaluation. The trial court held no hearing on Robinson's motion to set aside the default judgment. King was not given the opportunity to submit a brief in opposition to the motion. The trial court merely made a notation on the case action summary sheet stating that the default judgment against Robinson had been set aside. Nothing indicates that the trial court considered whether King would be unfairly prejudiced by a further delay that would be caused by setting aside the default judgment. Therefore, we must conclude that the trial court failed to consider the second Kirtland factor. The third Kirtland factor the trial court must consider is "whether the default judgment was a result of the defendant's own culpable conduct." 524 So. 2d at 605. According to the record, Robinson provided nothing to the trial court to indicate that the default judgment was not the result of Robinson's own culpable conduct. Robinson alleges in her motion that her attorney was not given notice that the plaintiff had moved for a default judgment and, therefore, that the default judgment could not be the result of her own culpability. However, Robinson provided no evidence to support this contention, and the record contradicts it. First, Robinson was aware that on August 17, 1998, her motion to dismiss was denied and that she was given 30 days to answer. She filed no answer within the 30 days. Second, although Robinson claims that her attorney was not notified that a motion for default judgment had been filed, the record before us contains a certificate of service indicating that he was given such notice. The trial court used the usual method of informing *37 attorneys of such hearings by faxing to Robinson's attorney a copy of the case action summary sheet noting the date and time of the hearing on the motion. In addition, after the default judgment was entered and made final, a copy of that judgment, with a cost bill, was sent to Robinson's attorney. Robinson failed, as a matter of law, either to provide a meritorious defense or to show that the default judgment was not the result of her own culpability. Therefore, the trial court had no basis on which to exercise its discretion to grant her motion to set aside the default judgment. Thus, we conclude that Robinson's motion to set aside the default judgment, taken as a Rule 60(b) motion, was not properly granted. Although Robinson claims that the "default judgment was entered as a result of inadvertence and excusable neglect" (see Rule 60(b)(1)), she did not provide a factual basis to support that claim. As we said in Ex parte American Resources Insurance Co., 663 So. 2d 932, 936 (Ala.1995): "A party seeking relief must both allege and prove one of the grounds set forth in Rule 60 in order to be granted relief under that rule." In American Resources, this Court held that where the defendant did not provide evidence to support the Rule 60(b) motion, the trial court could not grant relief without abusing its discretion. Because Robinson presented no grounds upon which Judge King could properly exercise his discretion to set aside the default judgment, we grant the petition for the writ of mandamus. Judge King is directed to vacate his order setting aside the default judgment and, thus, to reinstate the default judgment against Virginia Dare Robinson. PETITION GRANTED; WRIT ISSUED. MADDOX, HOUSTON, SEE, and BROWN, JJ., concur. LYONS, J., concurs specially. COOK, JOHNSTONE, and ENGLAND, JJ., dissent. LYONS, Justice (concurring specially). The majority opinion fails to deal with Robinson's argument that the certificate issued pursuant to Rule 54(b), Ala. R. Civ. P., was defective and, therefore, that the default judgment was not final and thus was, pursuant to Rule 54(b), "subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." In a line of cases beginning with Brown v. Whitaker Contracting Corp., 681 So. 2d 226 (Ala.Civ.App.1996), the Court of Civil Appeals has required that any certificate pursuant to Rule 54(b) must contain a showing as to why it is necessary that appellate review of a particular judgment be conducted prior to adjudication of the entire case. This Court has addressed this issue only in broader terms by stating that the Rule 54(b) certificate should not be given routinely or as a courtesy or accommodation to counsel; the availability of that certification of finality should be confined to the exceptional case. Foster v. Greer & Sons, 446 So. 2d 605 (Ala.1984), overruled on other grounds, Ex parte Andrews, 520 So. 2d 507 (Ala.1987). Under Foster, the appellate court may remand a case if the appeal is from a nonfinal order, when the defect is noticed, so as to allow the trial court to determine whether it chooses to certify the order as final and, if so, to enter an order pursuant to Rule 54(b) and to supplement the record to reflect that certification. Id. at 609. This issue is significant because if the judgment is to be treated as nonfinal by reason of a defective certificate pursuant to Rule 54(b), it is subject to revision under standards other than those applicable to proceedings under Rule 55 or Rule 60. This Court has described the trial court's authority to set aside an interlocutory default judgment that is "subject to revision at any time" under Rule 54(b), as *38 being "within the plenary power ... to afford relief ... as justice requires." Hallman v. Marion Corp., 411 So. 2d 130 (Ala.1982). A Rule 54(b) certification of finality, entered on the motion of a losing party,[1] enables that party to secure an immediate appellate review, without the burden of proceeding through protracted and unnecessary litigation in the event the judgment is due to be reversed. On the other hand, such a certification entered on the motion of the prevailing party[2] is, as a practical matter, a device used to remove the prospect that the trial court might revise the underlying order "at any time" under the trial court's plenary power to do so. This latter circumstance is the situation here presented. The Rule 54(b) certification in this case plainly lacks any explanation justifying its issuance. King counters Robinson's contention that the certificate is defective by asserting that Robinson should have appealed from the order purportedly made final by the Rule 54(b) certification and, in that appeal, raised the issue whether the certificate was proper. That course would put Robinson in the anomalous position of taking an appeal solely for the purpose of seeking an appellate determination that she had no right to appeal. I would hold that Robinson, if she considered the Rule 54(b) certification to be defective, had a remedy available, by timely filing a petition for a writ of mandamus directing the trial judge to set aside the Rule 54(b) certification, possibly as an alternative remedy sought at the same time an appeal is taken from the order purportedly made final by the Rule 54(b) certification. By that petition, she could seek a writ of mandamus that is based on a determination that the trial court abused its discretion in issuing the certification. Under the circumstances here presented, the timeliness of such a petition for the writ of mandamus should be measured by the time allowed for appealing from the order to which the Rule 54(b) certification relates. See Evans v. Insurance Co. of North America, 349 So. 2d 1099 (Ala.1977) (recognizing the 42 days within which to appeal from a judgment in a civil case pursuant to Rule 4(a), Ala. R.App. P., as a benchmark for measuring the time allowed for filing a mandamus petition). Because Robinson did not appeal or file a mandamus petition within that time, it is too late for her to attack the Rule 54(b) certification in this proceeding.[3] COOK, Justice (dissenting). The majority issues a writ of mandamus directing Jefferson Circuit Judge Dan C. King to vacate his order setting aside a default judgment entered against Virginia Dare Robinson awarding $10,000 in compensatory damages and $50,000 in punitive damages, and directing him to reinstate the default judgment. It does so because the record does not affirmatively show that Robinson has a "meritorious defense" and that the "default judgment was not the result of her own culpability." 776 So.2d *39 at 37. Indeed, it does so because of the absence of facts. I respectfully dissent. "It is well established that the decision to grant ... relief pursuant to a Rule 60(b)[, Ala. R. Civ. P.,] motion is discretionary with the trial court." DaLee v. Crosby Lumber Co., 561 So. 2d 1086, 1089 (Ala.1990). (Emphasis added.) "Discretion" is defined as the "power of free decision or latitude of choice within certain legal bounds." Merriam Webster's Collegiate Dictionary (10th ed.1997) (emphasis added). Thus, by definition, the "discretionary" standard of review affords the trial court considerable leeway in the decision-making process. Consistent therewith, this Court cannot compel the trial court to exercise its discretion in a particular manner, in the absence of facts demonstrating clear error. Three Coast Carriers, Inc. v. Ford Motor Credit Co., 607 So. 2d 169 (Ala.1992). Moreover, in exercising its discretion on the question whether to grant relief from a default judgment, the trial court is guided by the following presumptions: Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So. 2d 600, 604 (Ala.1988) (emphasis added). Kirtland, 524 So. 2d at 608 (quoting 10 C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure: Civil, § 2693 (2d ed.1983)). The majority essentially reverses these presumptions. At first glance, the cases cited by the majority appear to support its position. That appearance, however, is illusory. In some of those cases, the trial court refused to set aside a default judgment and this Court found no abuse of discretion. Fountain v. Permatile Concrete Prods. Co., 582 So. 2d 1069 (Ala.1991); DaLee v. Crosby Lumber Co., 561 So. 2d 1086, 1089 (Ala. 1990); see Appalachian Stove & Fabricators, Inc. v. Roberts, 544 So. 2d 893 (Ala. 1989). In some cases, this Court found an abuse of discretion in refusing to grant a motion. Sampson v. Cansler, 726 So. 2d 632 (Ala.1998); Rooney v. Southern Dependacare, Inc., 672 So. 2d 1 (Ala.1995). In another case, this Court found no abuse of discretion in the trial court's granting a motion to set aside a default judgment. Hallman v. Marion Corp., 411 So. 2d 130 (Ala.1982). But this case is the converse of those cases, for the trial judge set aside the judgment. It is one thing to hold that the trial court did not abuse its discretion in refusing to grant a motion for relief from judgment, where the motion does not set forth facts demonstrating that the movant has a "meritorious defense." But it is quite another matter to holdas the majority does todaythat the trial court abused its discretion in granting a motion to set aside the default judgment. It is the absence of facts that the majority cites as the rationale for its order to reinstate the default judgment. But how can this Court hold that the trial judge abused his discretion, in the absence of *40 facts showing that the exercise of discretion was clearly erroneous? In other words, the very rationale upon which the validity of the majority opinion depends negates that validity. The one case cited by the majority that is postured somewhat similarly to this one is Ex parte American Resources Insurance Co., 663 So. 2d 932 (Ala.1995). There, this Court issued a writ of mandamus directing the reinstatement of a default judgment that had been set aside by the trial court. 663 So. 2d at 936-37. Even that case is distinguishable. In that case, the trial court set aside its default judgment only after conducting a hearing on the Rule 60(b) motion for relief from judgment. Id. at 935. Thus, even after the hearing, the record failed to reflect evidence justifying relief from judgment pursuant to Rule 60(b). Id. at 936. The only sense in which the trial court abused its discretion in this case thus far was in granting Robinson's motion without a hearing, a hearing during which it could have received evidence on the issues of concern to the majority. Had it done so and had Robinson then failed to produce evidence of a meritorious defense, this case would be in the same posture as Ex parte American Resources Insurance Co. As it is, however, I cannot justify reinstating the default judgment on the basis of nonexistent facts. Consequently, I respectfully dissent. ENGLAND, Justice (dissenting). I join Justice Cook's dissent because, while I believe this Court should issue a writ of mandamus, I would not order the reinstatement of the default judgment. Instead, I would issue a writ requiring the trial judge to hold a hearing on Robinson's motion to set aside the default judgment. [1] For example, if a defendant seeks a summary judgment on two claims and receives a favorable ruling on one of them, the plaintiff might want an immediate review of the adverse determination, with a stay of the proceedings on the remaining claim. [2] For example, a defendant who is sued with other defendants and who obtains a summary judgment as to all claims against that defendant might want a certification of finality that would permit that defendant to disregard further proceedings as to the remaining defendants. [3] I do not intend by this writing to suggest approval or disapproval of the rule applied in Brown v. Whitaker Contracting Corp., and the cases following it, imposing a requirement that the trial judge, in a Rule 54(b) certification of finality, list factors to support immediate appealability. Because this issue may never reach this Court in an adversarial proceeding, I consider it an appropriate topic for the Standing Committee on the Alabama Rules of Civil Procedure to consider. Such a requirement, if the committee and this Court deem it appropriate, could be plainly expressed in Rule 54(b), thereby eliminating a trap for the unwary.

March 24, 2000

f07bb00b-3f73-44bd-921f-9f06187c94a0

Robinson v. Boohaker, Schillaci & Co.

767 So. 2d 1092

1972152

Alabama

Alabama Supreme Court

767 So. 2d 1092 (2000) F. Lee ROBINSON, Jr. v. BOOHAKER, SCHILLACI & COMPANY, P.C., et al. 1972152. Supreme Court of Alabama. March 17, 2000. *1093 John P. Scott, Jr., and Rik S. Tozzi of Starnes & Atchison, L.L.P., Birmingham, for plaintiff. Richard F. Ogle and Paul A. Liles of Schoel, Ogle, Liles & Upshaw, Birmingham, for defendants. PER CURIAM. The United States District Court for the Northern District of Alabama, acting pursuant to Rule 18, Ala. R.App. P., has certified to this Court the following question: We answer the question in the affirmative and state the effect of the availability of the defense. We include as an appendix to this opinion the United States district court's order certifying this question. F. Lee Robinson, Jr., an accountant, terminated his relationship with the firm of Boohaker, Schillaci & Company, P.C. ("the firm"), and exercised his rights under a preexisting buy-sell agreement executed in 1990, supplemented by a 1994 agreement, that, among other things, called for payments to be made to him over a five-year period for the purchase of his stock. The agreements also purported to prohibit Robinson from competing in any way with the business of the firm for a five-year period. When the firm stopped making payments, citing Robinson's violation of the agreements, Robinson sued the firm and its members, claiming damages based on termination of the monthly payments; on improper changes he said the firm had made in its cash-management practices, changes that he says were to his detriment; on its failure to permit him to purchase a life insurance policy owned by the firm; and on its failure to reimburse certain expenses. When the firm counterclaimed for an injunction and other relief, based on the noncompetition provisions contained in the agreement, Robinson moved for a partial summary judgment. It was undisputed that the 1994 agreement was drafted by Ben J. Schillaci, one of the defendants. The United States district court granted Robinson's motion, holding that the noncompetition provisions contained in the agreements were void ab initio and, therefore, that under § 8-1-1, Ala.Code 1975, those provisions were unenforceable in every respect; that the equitable defenses of equitable estoppel, in pari delicto, and unclean hands were not available to the defendants; and that the remaining provisions of the two agreements were not *1094 made invalid by the inclusion of the void noncompetition provisions. After the court had made that ruling, its attention was called to evidence suggesting that Robinson, as the partner in charge of legal matters, might have had actual knowledge, when he entered into the agreements, that the noncompetition provisions in the agreements were unlawful and unenforceable. The district court noted that in two prior cases (Anniston Urologic Associates, P.C. v. Kline, 689 So. 2d 54 (Ala.1997), and Pierce v. Hand, Arendall, Bedsole, Greaves & Johnston, 678 So. 2d 765 (Ala.1996)), this Court had refused on procedural grounds to decide whether the defense of in pari delicto could apply in litigation involving covenants not to compete. We are now squarely presented with circumstances that make it necessary to answer the question. Alabama law strongly disfavors prohibitions that restrain one from exercising a lawful profession, and this Court has routinely refused to enforce such prohibitions. Pierce, 678 So. 2d at 767 (law firm); Thompson v. Wiik, Reimer & Sweet, 391 So. 2d 1016, 1019 (Ala.1980) (accounting firm). This policy is reflected in § 8-1-1(a), Ala.Code 1975, which provides that "[e]very contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind otherwise than is provided by this section is to that extent void." Where one has entered into an agreement that is either illegal or void, and that party is equally guilty with the other party, the doctrine of in pari delicto precludes him from obtaining relief from the courts. Thompson, 391 So. 2d at 1020. This Court wrote in Thompson: Thompson, 391 So. 2d at 1020. The doctrine of equitable estoppel is separate and distinct from the doctrine of in pari delicto. This Court discussed the doctrine of equitable estoppel in Pierce: 678 So. 2d at 768. The party asserting equitable estoppel must be free from fault. An employee who is innocent of wrongdoing in the making of the agreement (i.e., is unaware of its illegality and is not a participant in the drafting) can assert the illegality of a covenant not to compete when the guilty employer asserts the employee's breach of such covenant as a defense to the employee's claim for payment under the agreement containing the covenant. The guilt of the employer precludes it from arguing under such circumstances that the employee is equitably estopped. *1095 As this Court observed in Kline, the evidence that the stockholders/physicians other than the departing employee directly participated in the drafting of the covenant not to compete precluded the employer from contending that the employee was equitably estopped from recovery because he had violated the noncompetition agreement. Kline, 689 So. 2d at 58, citing Pierce, 678 So. 2d at 769. One fact stated by the United States district court in its order certifying the question is that it is undisputed that one of the members of the firm drafted the agreements. Given this fact, the firm cannot assert the defense of equitable estoppel against Robinson as he seeks to recover, notwithstanding his breach of the illegal covenants not to compete. Id. As noted, the district court so held. Against this backdrop we recast the certified question as follows: As previously noted, we answer in the affirmative. No question of estoppel is presented when both parties are in equal fault. Moseley v. Selma Nat'l Bank, 3 Ala.App. 614, 621-22, 57 So. 91, 93 (1911). Under the doctrine of in pari delicto, if both parties are in equal fault then Robinson, on the one hand, could not excuse his breach of the covenant not to compete by pointing to its illegality. On the other hand, the equally guilty firm could not obtain injunctive relief to enforce the covenant. A court will not interfere where the parties are in pari delicto, or in equal or mutual fault, but will leave them where they have placed themselves. J.C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834 (Ala.1981). This result stems from the maxim (cited above in the quote from Thompson) "In pari delicto potior est conditio defendentis." Black's Law Dictionary 791 (6th ed. 1990) explains this maxim as meaning that "Where the fault is mutual, the law will leave the case as it finds it." We do not have sufficient information to determine the extent to which the firm's obligations to Robinson imposed by the agreements may be independent of the consideration furnished by Robinson in the form of his agreement not to compete. We leave for the United States district court the question whether Robinson's guilt may defeat entirely his right to recover on the agreements. CERTIFIED QUESTION ANSWERED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. "Plaintiff F. Lee Robinson (`Robinson') asserts Alabama state law claims against the accounting firm of Boohaker, Schillaci & Company, P.C. (`BS & C'), and against Ben J. Schillaci (`Schillaci'), John C. Boohaker, John H. Reamey, Clyde E. Putman, and Gregory A. Grey, for breach of contract, stockholder oppression, and unjust enrichment. Defendant BS & C asserts counterclaims against Mr. Robinson for breach of contract. These claims arise out of two agreements entered into by the parties on January 1, 1991, and December 31, 1994, respectively. *1096 "Mr. Robinson asserts that BS & C has breached these two agreements by terminating, after June of 1996, monthly payments he was to receive under the agreements; by changing BS & C's cash management practices to his detriment; by failing to allow Mr. Robinson to purchase a life insurance policy owned by the firm on Mr. Robinson's life; and by failing to reimburse expenses Mr. Robinson allegedly incurred in 1995 on the firm's behalf. BS & C, in turn, asserts counterclaims for an injunction and other relief on the ground that Mr. Robinson violated, inter alia, the non-compete provisions contained within the two buy-sell agreements. "The allegations of fact showing the nature of this cause and the circumstances out of which the question of law arises are as follows: "Mr. Robinson is a former shareholder, officer, director, and employee of the defendant firm, BS & C. While an employee of BS & C, Mr. Robinson worked as a licensed certified public accountant (C.P.A.) for the firm. The business of BS & C (of which all individual defendants are stockholders) is that of a certified public accounting firm or practice. At the end of 1994, Mr. Robinson decided to terminate his association with BS & C and exercised his rights under the buy-sell agreement previously entered into by Mr. Robinson and the defendants in 1990, which was to be effective as of January 1, 1991. The 1991 agreement was supplemented by another agreement dated December 31, 1994. It is undisputed that although Mr. Robinson was in charge of legal matters for the firm, the 1994 agreement was actually drafted by defendant Mr. Schillaci. "The 1991 agreement contained monetary disincentives for any partner leaving BS & C to compete with the firm. The 1991 agreement, therefore, contained a non-compete clause, and defined `competition' for purposes of that agreement as follows: "1991 Agreement, at 6-7. "In the 1994 agreement, BS & C promised to purchase Mr. Robinson's stock in BS & C on the following terms: `THE PURCHASE PRICE of Lee's stock in BSR will be $280,000 ... payable monthly over five years ... at the rate of $4,666.66 per month.' 1994 Agreement, at 1. When Mr. Robinson left the firm, BS & C began making these monthly payments. After eighteen months, BS & C ceased making payments on the ground that Mr. Robinson had allegedly breached the 1991 and 1994 agreements.[1] "The 1994 agreement also contained the following non-compete provision: *1097 "1994 Agreement, at 1. BS & C would not have agreed to the 1994 agreement absent Mr. Robinson's promise to refrain from doing any work for the firm's clients if such work competed with the business of the firm. "On November 7, 1997, the Court granted Mr. Robinson's motion for partial summary judgment on BS & C's counterclaims concerning the validity of the non-compete provisions contained in the 1991 and 1994 agreements. By doing so, the Court held that the non-compete provisions contained in the agreements were void ab initio and that these covenants were, therefore, unenforceable in every respect pursuant to [Ala.Code 1975,] § 8-1-1. The Court also concluded that the remaining provisions of the 1991 and 1994 container agreements were themselves not invalid by virtue of the void non-compete provisions. Finally, the Court also ruled that the defendants' affirmative, equitable defenses of equitable estoppel, in pari delicto,[2] and unclean hands were unavailable in the present action. Subsequent to this ruling, however, the Court received evidence suggesting that, as the partner in charge of legal matters for BS & C, Mr. Robinson may have had actual knowledge that the non-compete agreements contained in the 1991 and/or 1994 agreements were unlawful and unenforceable. "Based upon this `new' evidence, whether the doctrine of in pari delicto is an affirmative defense available to the defendants to avoid their obligations to Mr. Robinson under the container agreements is fundamental to a resolution of Mr. Robinson's claims and the defenses to those claims. [1] "BS & C paid Mr. Robinson approximately $84,000 of the total of $280,000 pursuant to the 1994 agreement. [2] "The Court then explained: "`As to the in pari delicto defense, in both Anniston Urologic Associates, P.C. [v. Kline, 689 So. 2d 54 (Ala.1997)], and Pierce [v. Hand, Arendall, Bedsole, Greaves and Johnston, 678 So. 2d 765 (Ala.1996)], the Alabama Supreme Court explicitly refused to decide whether the defense applied because the defense was not properly raised on appeal. See Kline, 689 So. 2d at 58; Pierce, 678 So. 2d at 769.' "Memorandum of Opinion, at 11-12 (entered Nov. 7, 1998)."

March 17, 2000

2985ff61-70a3-483b-8649-7681a971c9f3

Oliver v. Towns

770 So. 2d 1059

1982303

Alabama

Alabama Supreme Court

770 So. 2d 1059 (2000) Beatrice E. OLIVER v. Patricia TOWNS. 1982303. Supreme Court of Alabama. March 10, 2000. Rehearing Denied May 5, 2000. *1060 Beatrice E. Oliver, appellant, pro se. James G. Bodin and Julian L. McPhillips of McPhillips, Shinbaum & Gill, L.L.P., Montgomery, for appellee. HOUSTON, Justice. Patricia Towns hired lawyer Beatrice Oliver to represent Towns in regard to a personal-injury claim. The claim was settled for $12,000. Towns and Oliver had a contingency-fee contract by which Towns was to receive 60% of the settlement ($7,200), with Oliver receiving 40% as her fee. Towns never saw the settlement check, because Oliver forged Towns's endorsement and kept the entire $12,000 for herself. Towns sued Oliver to recover funds received by Oliver for Towns but not remitted to Towns. The court entered a default judgment against Oliver. It awarded Towns $500,000 in compensatory damages to compensate for money she should have received and for the mental anguish she claimed to have suffered. The court also awarded punitive damages of $1 million. Oliver moved for a hearing to review the question whether Towns had presented clear and convincing evidence supporting the award of punitive damages and the question whether the compensatory and punitive awards were excessive. The trial court denied her motion. Oliver then appealed to this Court, which affirmed the denial of Oliver's motion to set aside the default judgment, but reversed the order denying Oliver a hearing on the question of excessiveness of damages. Oliver v. Towns, 738 So. 2d 798 (Ala.1999). This Court remanded with instructions for the trial court to hold a hearing to determine whether the amount of compensatory damages and the amount of punitive damages were excessive. In addition, we also instructed the trial court to address the issue whether the $250,000 cap on punitive damages set out in Ala.Code 1975, § 6-11-21, would apply to this case.[1] *1061 On remand, Towns moved to reduce the amount of punitive damages from $1 million to $249,000. The trial court proceeded with the hearing. After the hearing, the trial court in effect granted Towns's motion and reduced the punitive damages to $249,000, but left the compensatory award unchanged. Oliver has appealed again. She contends that the trial court erred in granting Towns's motion to reduce the punitive damages because, she argues, both the punitive award and the compensatory award are still excessive. We first address the issue whether the $500,000 compensatory award was excessive. The actual financial loss claimed in this case was $7,200. Therefore, we must conclude that the court awarded $492,800 for Towns's mental anguish. This Court has worked diligently over the past few years to formulate a consistent law regarding the amount of damages that can be awarded for mental anguish. See Kmart Corp. v. Kyles, 723 So. 2d 572 (Ala. 1998), and Foster v. Life Ins. Co. of Georgia, 656 So. 2d 333 (Ala.1994). In Kyles, a case involving a malicious prosecution, this Court held that the jury had abused its discretion in awarding compensatory damages of $100,000, of which $90,000 was for mental anguish, because "[t]he only evidence of Kyles's alleged mental suffering was her husband's testimony that she cried on one occasion when she telephoned him to say that she had been arrested." Kyles, 723 So. 2d at 577-78. Foster involved a plaintiff who "had been paying over a fifth of her monthly income to an insurance company for a worthless policy." Foster, 656 So. 2d at 337. Foster's out-of-pocket loss was $2,468.60 in premiums and $95 in medical bills. Id. at 336. This Court reduced the award of compensatory damages from $250,000 to $50,000 because the only evidence presented in support of the claim for mental-anguish damages was the plaintiff's "bare assertion that the discovery of fraud affected her `a lot' and that she sued two months after the mental anguish and emotional distress began." Id. at 337. Both Kyles and Foster indicate that a plaintiff must present a significant amount of evidence to show the effects of the mental anguish before she can receive a mental-anguish award measured in the hundreds of thousands of dollars. Reviewing the record, we find that the only evidence regarding Towns's claimed mental anguish is her testimony that she suffered "a lot of [mental anguish]" and that she had to seek counseling because of her worry over losing the opportunity to buy a house. The record contains no evidence from the counselor relating to Towns's mental anguish. It is apparent to us that while Towns did offer more evidence than the plaintiff in Foster offered, she did not offer much more. She simply did not present enough evidence to support a compensatory-damages award of $500,000 when her actual monetary loss was only $7,200. In light of Kyles and Foster, we see no reason why the compensatory damages in this case should exceed $75,000. Next, we must consider the punitive-damages award of $249,000.[2] When compared to a compensatory-damages award of $75,000, the ratio of punitive damages to compensatory damages is slightly higher than 3:1. This case involves an attorney who misappropriated the proceeds of a client's settlement check. Because of this particularly reprehensible *1062 act, we cannot hold that the $249,000 punitive award is excessive. We affirm the punitive-damages award of $249,000. We also affirm the award of compensatory damages on the condition that the plaintiff file with this Court, within 30 days, a remittitur reducing the compensatory-damages award to the sum of $75,000; otherwise, the damages awards will be reversed and the case remanded. AFFIRMED WITH RESPECT TO THE PUNITIVE-DAMAGES AWARD; AFFIRMED CONDITIONALLY WITH RESPECT TO THE COMPENSATORY-DAMAGES AWARD. HOOPER, C.J., and MADDOX, LYONS, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., concurs specially. COOK and SEE, JJ., concur in the result. JOHNSTONE, Justice (concurring specially). While I disagree with the main opinion in its citation of Kmart Corp. v. Kyles, 723 So. 2d 572 (Ala.1998), for the reasons stated in my special writing in Delchamps, Inc. v. Bryant, 738 So. 2d 824, 841-43 (Ala.1999), the rationale of the main opinion in the case presently before us regarding remittitur of the compensatory damages including mostly mental anguish is consistent with the test I suggested in my Delchamps special writing at 738 So. 2d at 843. Paraphrasing that test, the evidence of mental anguish in the case before us is not of such weight and quality that fair-minded persons in the exercise of impartial judgment could reasonably infer the existence of $500,000 worth of damage to be compensated. On the other hand, the evidence in the case before us, all factors considered, is of such weight and quality that fairminded persons in the exercise of impartial judgment could reasonably infer the existence of $75,000 worth of damage to be compensated, the quantum to which the main opinion remits the compensatory damage award. I agree with the main opinion that the plaintiff "simply did not present enough evidence to support a compensatory-damages award of $500,000 when her actual monetary loss was only $7,200." [1] The cap on punitive damages in § 6-11-21 had been held unconstitutional in Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala. 1993). However, as this Court pointed out in the first Oliver opinion, later developments in due-process law had called into question whether Henderson remained good law. See Oliver, 738 So. 2d at 804 n. 7. [2] Because the punitive damages have been reduced to an amount less than $250,000 the amount of the cap in § 6-11-21the question whether Henderson is still good law, a question discussed in the first Oliver opinion (see n.1, supra), is no longer before us.

March 10, 2000

facc9156-cbad-4ab1-80bb-ea85d1060b92

Ex Parte Phillips

771 So. 2d 1066

1981083

Alabama

Alabama Supreme Court

771 So. 2d 1066 (2000) Ex parte W.A. PHILLIPS. Re W.A. Phillips v. State. 1981083. Supreme Court of Alabama. March 10, 2000. *1067 David Cromwell Johnson of Johnson, Liddon, Bear & Tuggle, Birmingham, for petitioner. Bill Pryor, atty. gen., and Sandra J. Stewart, asst. atty. gen., for respondent. COOK, Justice. W.A. Phillips was charged with hunting over a baited field, in violation of § 9-11-244, Ala.Code 1975. At trial, Phillips denied having any knowledge that the field in which he was hunting was baited. The trial court, over Phillips's objection, held that hunting over a baited field is a strict-liability offense. The trial court then instructed the jury that if Phillips had hunted over a baited field he could be found guilty even without proof that he baited the field or even knew that it was baited. The jury found Phillips guilty, and he appealed. The Court of Criminal Appeals affirmed Phillips's conviction, stating that hunting over a baited field is a "public-welfare offense" that requires no culpable mental state. Phillips v. State, 771 So. 2d 1061 (Ala.Crim.App.1998). Section 9-11-244, Ala.Code 1975, provides: Section 9-11-244 does not set out a culpable mental state. The Court of Criminal Appeals, relying on Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952), and Walker v. State, 356 So. 2d 672 (Ala.1977), held: 771 So. 2d at 1065. Section 9-11-244 does not designate a culpable mental state, and the intent of the statute is clearly to prohibit the taking or killing of protected birds or other animals lured to an area by bait. However, the punishment for violating § 9-11-244 is not insignificant. Nor *1068 would the requirement of a culpable mental state render the statute unenforceable. Traditionally, public-welfare offenses do not result in "grave damage to an offender's reputation." The State argues that "a conviction for hunting over bait is no more abhorrent than a conviction for a traffic violation." The state's analogy is too broad. Traffic violations come in all shapes and sizes. For example, a traffic citation for illegal parking rarely, if ever, damages the reputation of the offender. However, a citation for reckless driving or driving under the influence does damage the reputation of the offender. Hunting over a baited field has the potential to damage the reputation of the offender, because it carries the potential of jail time. A second conviction under § 9-11-244 can result in a fine and up to six months of jail time. § 9-11-246, Ala.Code 1975. Anytime an offender must serve a jail sentence, his reputation is invariably damaged. Thus, hunting over a baited field is not as benign an offense as illegal parking. The Court of Criminal Appeals stated, and the State argues here, that if § 9-11-244 were held not to state a strict-liability offense, then the statute would be difficult to enforce. However, requiring some level of mental culpability would not render the statute any more difficult to enforce than any other statute. The language of § 9-11-244 is very similar to the language in the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq. The Migratory Bird Treaty Act also seeks to prevent the taking of protected birds over a baited field and, like § 9-11-244, it does not set out a culpable mental state. The United States Court of Appeals for the Fifth Circuit, in United States v. Delahoussaye, 573 F.2d 910 (5th Cir.1978), resolved the same issue that is now before this Court. Even though the Migratory Bird Treaty Act does not set out a level of mental culpability required for a person to be found guilty of violating that Act, the Fifth Circuit Court of Appeals held: 573 F.2d at 912. Requiring, for one to be convicted of violating § 9-11-244, that he either knew or should have known that the area over which he was hunting was baited does not render § 9-11-244 unenforceable. Requiring such a low level of mental culpability simply requires the State to prove that with reasonable investigation the hunter could have discovered the bait. The imposition of a low-level standard of mental culpability also protects a hunter who performed the necessary investigation, but was unable to detect the presence of bait, perhaps because he was barred by a property line. Imposing a low level of mental culpability also protects the spirit and intent of the statute, to prevent the taking or killing of protected birds or animals lured to an area by bait. *1069 Furthermore, this Court is not overstepping its bounds by declining to interpret § 9-11-244 as a strict-liability statute. Section 13A-2-4(b), Ala.Code 1975, states: (Emphasis added.) The commentary to § 13A-2-4 states: "Subsection (b) explicitly states a policy adverse to arbitrary use of `strict liability' concepts. An express statement is required in the statute defining the offense if strict liability is being imposed." The State argues that § 13A-2-4 should not apply to § 9-11-244 because § 9-11-244 was enacted in 1951 and § 13A-2-4 was enacted in 1977. However, the Legislature revised § 9-11-244 in 1991. If the Legislature had intended § 9-11-244 to state a strict-liability offense, it could have added an express statement to that effect in 1991. The Legislature did not add such an express statement. Therefore, we must assume that the Legislature was aware of § 13A-2-4, when it revised § 9-11-244, and chose not to make the offense a strict-liability offense. In the absence of an express statement by the Legislature indicating an intent to make hunting over a baited field a strict-liability offense, we decline to make a criminal conviction resulting in up to six months' jail time "an unavoidable occasional consequence of ... hunting." Delahoussaye, 573 F.2d at 912. Because we conclude that a conviction under § 9-11-244 requires a showing that the defendant either knew or should have known that the area over which he was hunting was baited, the trial court erred in instructing the jury that Phillips could be found guilty even without proof that he baited the field or knew that the field was baited. Therefore, we remand this case for further proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, SEE, LYONS, JOHNSTONE, 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.

March 10, 2000

e650f242-59f6-4df7-8ef5-ec65ae56a4d9

Ex Parte Galanos

796 So. 2d 390

1971499

Alabama

Alabama Supreme Court

796 So. 2d 390 (2000) Ex parte Chris N. GALANOS, Ferrill D. McRae, Braxton L. Kittrell, Jr., Edward B. McDermott, Robert G. Kendall, Joseph S. Johnston, and Robert E. L. Key. (Re Ex parte Peter Austin Bush (Re State of Alabama v. Carlos Balams; State of Alabama v. Kevin Cappell; State of Alabama v. Carol Dimarzio; State of Alabama v. Lissette A. Henderson; and State of Alabama v. Terry Rawls)). 1971499. Supreme Court of Alabama. March 17, 2000. *391 W. Lloyd Copeland of Clark, Deen & Copeland, P.C., Mobile, as special asst. atty. gen., for petitioner. Peter Austin Bush, respondent, pro se. Alexander Bunin, Mobile, amicus curiae Alabama Criminal Defense Lawyers Ass'n. PER CURIAM. Several circuit court judges, either active judges of the Mobile Circuit Court or retired judges assigned to try criminal cases in the Mobile Circuit Court, petitioned for a writ of mandamus directing the Court of Criminal Appeals to vacate its judgment in Ex parte Bush, 796 So. 2d 383 (Ala.Crim.App.1998). We grant the petition. Section 15-12-21, Ala.Code 1975, sets out the procedure for appointing counsel for indigent criminal defendants and for compensating the lawyers for their services as appointed counsel. Section 15-12-3 provides that, within each judicial circuit in Alabama, the presiding judge is to administer that circuit's indigent-defense system "pursuant to rule of the Supreme Court," and that "[c]ircuit courts may adopt rules, not in conflict with rules of the Supreme Court, to effectuate a system of indigent defense." These petitioners adopted a "system of indigent defense" for Mobile County, including a schedule for reviewing attorney-fee declarations in criminal indigent-defense cases. According to the schedule, the responsibility for reviewing all fee declarations "rotates" among the circuit judges on an approximately annual basis. Thus, in Mobile County, indigent-defense fee declarations are submitted to the currently designated reviewing judge and to a *392 committee made up of five lawyers who practice criminal law in Mobile County. The designated judge reviews the committee's recommendations, independently reviews each fee declaration, then approves a fee, which is submitted to the State comptroller for payment. The respondent, Peter Austin Bush, is a Mobile lawyer who accepts appointments to defend indigent criminal defendants. Judge Chris N. Galanos, a judge of the Mobile Circuit Court and one of the petitioners here,[1] reduced Bush's attorney-fee declarations in 11 indigent-defense cases. Bush filed with the Court of Criminal Appeals a petition for a writ of mandamus, challenging the legality of Mobile County's indigent-defense system and challenging Judge Galanos's reductions of Bush's fee declarations. In response to Bush's mandamus petition, the Court of Criminal Appeals held, in Ex parte Bush, supra, that § 15-12-21 requires that attorney-fee declarations be submitted to the judge who heard the case, and that Judge Galanos did not have jurisdiction to consider fee declarations in cases that were not tried before him. The Court of Criminal Appeals also held that the Mobile Circuit Court's indigent-defense system conflicts with § 15-12-21 and results in "arbitrary and capricious treatment" of attorney-fee declarations by allowing a judge who did not try a case to review the attorney-fee declaration in that case. The Court of Criminal Appeals ordered Bush to submit supplemental fee declarations, and it ordered the judges who presided over the corresponding trials to review those declarations. The Court of Criminal Appeals also ordered that the Mobile Circuit Court revise its method for reviewing attorney-fee declarations in indigent-defense cases so that the judge who hears the case also reviews the fee declaration, so as to comply with § 15-12-21. Seven judges who heard criminal cases in the Mobile Circuit Court filed a de novo petition in this Court (see Rule 21(e)(1), Ala. R.App. P.), arguing that Bush's mandamus petition to the Court of Criminal Appeals was improper because, they contended, Bush had another adequate remedy available, an action pursuant to the Declaratory Judgment Act (§ 6-6-220 et seq., Ala.Code 1975). Further, the circuit judges argue, a declaratory-judgment proceeding would have provided a record for appellate review, which is absent in these mandamus proceedings. We agree with these contentions. "Mandamus [is] an extraordinary remedy that will not be issued unless the [petitioner] has a clear, undisputable right to the relief sought...." Ex parte Mobile Fixture & Equip. Co., 630 So. 2d 358, 360 (Ala.1993). Mandamus is a remedy "employed to see that justice is done, but the writ of mandamus shall not issue if there is a doubt as to its necessity or propriety." Ex parte Franks, 679 So. 2d 219, 220 (Ala. 1996). Indeed, we have held: Ex parte Metropolitan Life Ins. Co., 707 So. 2d 229, 233 (Ala.1997) (citations omitted), quoting Ex parte Holland, 692 So. 2d 811, 814 (Ala.1997). The lack of another adequate remedy is a prerequisite to the issuance of a *393 writ of mandamus. Ex parte Martin, 703 So. 2d 883, 884 (Ala.1996). Bush does not deny that a declaratory-judgment proceeding constitutes an available adequate remedy, but argues that had he sought a declaratory judgment and won, the likelihood is that the same issues presented by this mandamus petition would have been presented to this Court in an appeal by the losing party. Had the scenario presented by Bush occurred, this Court might have found itself faced with the same legal question; however, a critical difference would have existed: there would have been before this Court a fully developed record from a declaratory-judgment proceeding. Section 6-6-223 provides that "[a]ny person ... whose rights ... are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status or other legal relations thereunder." We therefore conclude that Bush had an "adequate legal remedy" available by a means other than a writ of mandamus, and that the Court of Criminal Appeals erred in granting Bush's petition. Although at oral argument of this case counsel for the petitioners informed this Court that Mobile's indigent-defense system has been revised to remedy the problems that were the basis for Bush's original petition to the Court of Criminal Appeals, we emphasize that § 6-6-223 clearly provides Bush with "another adequate remedy" and that remedy is not foreclosed to him by the decision in this case. We also note that "properly invoked jurisdiction"the fifth requisite for obtaining mandamus reliefis absent here. Ala. Const.1901, Amend. No. 328, § 6.03, establishes the jurisdiction for Alabama's Courts of Appeals. That section provides, in pertinent part: Section 12-3-9, Ala.Code 1975, provides that "[t]he Court of Criminal Appeals shall have exclusive appellate jurisdiction of all misdemeanors, including the violation of town and city ordinances, habeas corpus and all felonies, including all post conviction writs in criminal cases." Clearly, jurisdiction for Bush's mandamus petition was not proper in the Court of Criminal Appeals. On the other hand, § 12-3-10 provides that "[t]he Court of Civil Appeals shall have exclusive appellate jurisdiction of all civil cases where the amount involved, exclusive of interest and costs, does not exceed $50,000 ... and all extraordinary writs arising from appeals in said cases." Thus, after litigation in the circuit court, a judgment in a declaratory-judgment action may be appealed to the Court of Civil Appeals. We grant the petition for the writ of mandamus; the writ shall issue to the Court of Criminal Appeals, directing that court to vacate its judgment granting Bush's petition for the writ of mandamus. *394 PETITION GRANTED; WRIT ISSUED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, and LYONS, JJ., concur. BROWN[*] and JOHNSTONE, JJ., recuse themselves. [1] Since this mandamus petition was filed, Judge Galanos has resigned. [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

March 17, 2000

2073c065-e0b2-4b0b-8d49-0d1768666215

Allstate Ins. Co. v. Hardnett

763 So. 2d 963

1982141

Alabama

Alabama Supreme Court

763 So. 2d 963 (2000) ALLSTATE INSURANCE COMPANY v. Vernon HARDNETT, as guardian of Daphne Heard. 1982141. Supreme Court of Alabama. March 17, 2000. Michael K. Beard and Deborah Alley Smith of Rives & Peterson, P.C., Birmingham, for appellant. John A. Tinney, Roanoke, for appellee. *964 HOUSTON, Justice. Vernon Hardnett, as guardian of Daphne Heard, sued Allstate Insurance Company in the Randolph Circuit Court, seeking benefits under the uninsured-motorist portion of an automobile insurance policy held by Hardnett. Both Allstate and Hardnett moved for a summary judgment. The trial court denied Allstate's motion, but entered a summary judgment for Hardnett. Allstate appeals. We reverse and remand. Daphne Heard lived with her aunt, Chanda Roundtree, and her grandfather, Vernon Hardnett, at Hardnett's house. Heard was injured when she was struck by a car driven by Roundtree. Hardnett held a policy with Allstate covering three motor vehicles, including the car that struck Heard. Heard, acting through Hardnett, initially made a claim under the liability coverage of Hardnett's policy. The policy contained an exclusion from coverage for liability for "bodily injury to any person related to a person insured by blood, marriage, or adoption and residing in that person's household." Allstate denied Heard's liability claim based on this exclusion. Heard then made a claim on the uninsured-motorist coverage of the policy, contending that because Allstate denied coverage of the first claim, a claim based on the liability portion of the policy, the vehicle that struck her was now an "uninsured auto." Allstate denied this coverage as well, because it determined that the car driven by Roundtree was not within the definition of "uninsured auto" provided in the policy. An "uninsured auto" is defined in the uninsured-motorist section of the policy: (Emphasis added.) The same section of the policy contains this provision, entitled "An uninsured auto is not": (Emphasis added.) The sole issue before this Court is whether the evidence before the trial court was sufficient to entitle Hardnett to a summary judgment. In reviewing a ruling on a summary-judgment motion, this Court applies the same standard the trial court applies when ruling on the motion. Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988). This Court has consistently upheld exclusions within an uninsured-motorist portion of a policy that deny coverage for a vehicle that is covered under the liability portion of the same policy. Watts v. Preferred Risk Mut. Ins. Co., 423 So. 2d 171 (Ala.1982); Ex parte O'Hare, 432 So. 2d 1300 (Ala.1983); Hall v. State Farm Mut. Auto. Ins. Co., 514 So. 2d 853 (Ala.1987). Hardnett contends that the cases supporting this theory of law do not apply in this case. Instead, he argues, this Court should apply the law of two other cases, *965 State Farm Mutual Automobile Insurance Co. v. Jeffers, 686 So. 2d 248 (Ala.1996), and Hogan v. State Farm Mutual Automobile Insurance Co., 730 So. 2d 1157 (Ala.1998). In each of those cases, the plaintiffs were able to collect on the uninsured-motorist portion of their own policy after claims on the liability section of the other driver's policy had been denied.[1] However, as Allstate correctly points out, the liability claims made by the plaintiffs in those two cases were made on policies other than those policies on which they were allowed to claim uninsured-motorist benefits. Allstate contends that where, as here, the liability claims and the uninsured-motorist claims are made on the same policy, the exclusion is valid. In other words, it argues, if an insured is denied coverage under the liability portion of his own policy, he should not then be able to drop down to the uninsured-motorist portion and collect benefits for the same injury. Allstate points out in its brief that it was particularly concerned that, without such an exclusion, family members could easily commit fraud against an insurance company. By placing in the policy the exclusion Allstate relies on here, the insurance company prevents the possibility of any such fraud. We agree with Allstate that Alabama law allows this exclusion. The only question remaining is whether the provisions of the policy create an ambiguity. The third definition under "An uninsured auto is" reads: "A motor vehicle for which the insurer denies coverage, or the insurer becomes insolvent." The second exclusion under "An uninsured auto is not" reads: "A motor vehicle which is insured under the Liability Insurance coverage of this policy." Hardnett argues that these definitions contradict each other, and, therefore, that the definition of "uninsured auto" is ambiguous. Allstate argues that these two sections of the same uninsured-motorist provisions jointly provide the definition of an "uninsured auto." An insurance policy must be read as a whole. The provisions of the policy cannot be read in isolation, but, instead, each provision must be read in context with all other provisions. Attorneys Ins. Mut. of Alabama, Inc. v. Smith, Blocker & Lowther, P.C., 703 So. 2d 866, 870 (Ala. 1996); Hall v. American Indemnity Group, 648 So. 2d 556 (Ala.1994). Hardnett is essentially arguing that this Court should view these two provisions individually and conclude that the policy provides two separate and contradictory definitions, thereby creating an ambiguity in the term "uninsured auto." However, when these two provisions are read together, as Alabama law requires, it becomes clear that the first section, entitled "An uninsured auto is," sets out the uninsured-motorist coverage of the policy, and that, as with any policy, the second, entitled "An uninsured auto is not," provides the exclusions that limit the coverage. The unambiguous language of the two pertinent provisions first states that an "uninsured auto" is "a motor vehicle for which the insurer denies coverage or the insurer becomes insolvent," and then excludes any "motor vehicle which is insured under the Liability Insurance coverage of this policy." (Emphasis added.) Therefore, these provisions of the policy clearly and unambiguously *966 state that a motor vehicle that is insured under the liability portion of this policy cannot be an "uninsured auto." A policy provision that is clear and unambiguous must be enforced as it is written, including an exclusion from coverage. Auto-Owners Ins. Co. v. American Cent. Ins. Co., 739 So. 2d 1078, 1081 (Ala. 1999). This policy should be enforced as written, and, under the terms of this policy, the vehicle driven by Roundtree, which struck Heard, cannot be an "uninsured auto" under this policy, because it was a motor vehicle that was insured under the liability portion of this same policy. Because this car cannot be an uninsured vehicle, the accident involving it cannot be the basis for any recovery under the uninsured-motorist coverage of the policy. Because Hardnett cannot recover under the uninsured-motorist coverage of the policy, the trial court erred in entering a summary judgment in his favor. The judgment is reversed and the case is remanded. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] In Jeffers, one of the plaintiffs was involved in an accident with a deputy sheriff driving a sheriff's car. That plaintiff, along with her husband, made a claim on the liability policy that covered the deputy's car. The deputy had substantive immunity, and, therefore, that policy would not cover the accident. This Court, however, did allow the plaintiffs to proceed with their claim against their personal automobile insurance carrier, on the theory that, within the terms of their policy, the sheriff's car was an "uninsured vehicle." One of the plaintiffs in Hogan was a guest in an automobile at the time of her accident. The plaintiff, along with her husband, initially made a claim on the driver's liability policy, but that claim was precluded by the Alabama Guest Statute. This Court allowed the plaintiffs to proceed with their claim against their personal automobile insurance carrier, on the theory that the vehicle in which the injured plaintiff was riding was, within the terms of their policy, an "uninsured vehicle."

March 17, 2000

8f0544ff-a2d8-4d25-b931-2812f65408fa

State v. American Tobacco Co.

772 So. 2d 417

1981413

Alabama

Alabama Supreme Court

772 So. 2d 417 (2000) STATE of Alabama v. The AMERICAN TOBACCO COMPANY et al. 1981413. Supreme Court of Alabama. April 14, 2000. Rehearing Denied May 19, 2000. *418 Bill Pryor, atty. gen., and Raymond L. Jackson, asst. atty. gen., for appellant. Walter R. Byars, Montgomery; E. Ted Taylor of Taylor & Taylor, Birmingham; Larry W. Morris, Alexander City; and Michael J. Evans, Birmingham, for appellees. HOUSTON, Justice.[1] The State of Alabama appeals from an order of the Montgomery Circuit Court awarding $2,011,160.36 in attorney fees and as reimbursement for expenses to five attorneys who, at the request of former Governor Fob James, filed a lawsuit against the tobacco industry shortly before Attorney General Bill Pryor and other state attorneys general negotiated a national settlement of pending and impending litigation against the tobacco industry.[2] Governor James hired these attorneys on November 12, 1998, pursuant to Ala.Code 1975, § 41-15B-2(i); he authorized them to file the action to recover tobacco-related damages on behalf of the State. (These attorneys will hereinafter be referred to as "James's attorneys.") Governor James entered into a contingency-fee contract with the attorneys. That contract authorized an attorney fee of up to seven percent of the total amount of any recovery on behalf of the State and provided for the reimbursement of expenses; however, the contract specifically provided that "if a proposed settlement is reached by the Attorney General without the Attorneys' substantial participation, no attorneys' fee will *419 be paid to the Attorneys." This contract was not submitted for review to the Contract Review Permanent Legislative Oversight Committee. See Ala.Code 1975, § 29-2-40 et seq. Shortly after the tobacco industry had entered into a national settlement with the attorneys general of the various states, including Alabama, Attorney General Bill Pryor discharged James's attorneys and dismissed the action they had filed at the request of Governor James. This appeal concerns only the trial court's sua sponte order requiring the State to pay James's attorneys in excess of $2 million from the first $38,787,140 payment to the State from proceeds generated by the national tobacco settlement and granting the attorneys a lien against those proceeds for the amount of the award. These proceeds are earmarked for potential deposit into the Children First Trust Fund. See Ala.Code 1975, § 41-15B-2(c), as amended by Ala. Acts 1999, Act No. 99-390. The State raises two issues: (1) whether the trial court erred in ruling that the contingency-fee contract executed by Governor James and his attorneys was exempt from review by the Contract Review Permanent Legislative Oversight Committee, despite what the State says is plain language in §§ 29-2-41 and 29-2-41.2(b) indicating that the contract was void ab initio; and, alternatively, (2) whether the trial court erred in ruling that James's attorneys had "substantially participated" in the national tobacco-settlement negotiations and therefore that they were entitled to a substantial fee under the contract, notwithstanding admissions by James's attorneys that they had not been allowed to participate in those negotiations and without regard to the provisions of the national tobacco settlement that created a separate procedure for paying fees to attorneys involved in the settlement negotiations. We note at this point that where the facts are not in dispute and we are presented with pure questions of law, this Court's standard of review is de novo. See Ex parte Graham, 702 So. 2d 1215, 1221 (Ala.1997); Beavers v. County of Walker, 645 So. 2d 1365, 1372 (Ala.1994). With respect to the State's first issue, the trial court's order provides: We disagree. The parties' basic point of contention is whether §§ 29-2-40 through 29-2-41.3, when read together, required that the contingency-fee contract be submitted for review to the oversight committee or whether the contract was exempt from review because any potential attorney fee or reimbursement for expenses was not to be "paid out of appropriated funds, federal or state, on a state warrant issued as recompense for those services." See § 29-2-41. DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270, 275 (Ala.1998). Section 29-2-41.2(b) is clear on its face: "Notwithstanding any other provisions of [Article 3, Chapter 2, Title 29], all contracts for employment of an attorney to provide legal services ... shall be reviewed by the [contract review oversight] committee," with the sole exception of "contracts for appointment of attorneys for the Department of Transportation for right of way condemnation cases." (Emphasis added.) It is clear from our examination of the five sections of Article 3 dealing with the contract review oversight committee that the Legislature did not intend to limit the committee's oversight to contracts for legal services that would be "paid out of appropriated funds, federal or state, on a state warrant issued as recompense for those services." See § 29-2-40 through § 29-2-41.3. Therefore, we hold the contingency-fee contract at issue here void under the express terms of § 29-2-41: "Any contract made by the state or any of its agencies or departments in violation of this section and without prior review by the committee of either the contract or the letter of intent to contract shall be void ab initio." Our holding is based on the Legislature's clear expression of intent that the state not be allowed to contract for certain services unless the contracts for those services are reviewed by the committee. We note that James's attorneys argue that the title to Act No. 95-652, which amended § 29-2-41.2, creates an ambiguity in the language contained in that Act. The title reads: (Emphasis added.) The pertinent portion of the body of the Act, which is codified as § 29-2-41.2(b), reads: (Emphasis added.) James's attorneys contend that the word "certain" in the title conflicts with the word "all" in the body. In other words, they argue that the preamble states the Legislature's intent that only "certain" legal-services contracts be reviewed by the committee, not "all" legal-services contracts, as the language of the body of the Act states. They argue further that § 29-2-41 specifically exempts a legal-services contract, such as theirs, that would not be paid out of appropriated funds. Section 29-2-41 provides: "The committee shall have the responsibility of reviewing contracts for ... professional services with private entities or individuals to be paid out of appropriated funds, federal or state, on a state warrant issued as recompense for those services." However, James's attorneys overlook the last sentence of § 29-2-41.2(b), which came from Act No. 95-652: "Provided, however, contracts for appointment of attorneys for the Department of Transportation for right of way condemnation cases are exempt from the provisions of this article." This exemption of a particular kind of legal-services contract would preclude the Legislature from using the word "all" in the title. The word "certain" is logical and unambiguous as it is used in the title. Because the title of the Act and the body of the Act, when read together, are unambiguous, there is no need to look to the title when interpreting § 29-2-41.2(b). See Hamrick v. Thompson, 276 Ala. 605, 609, 165 So. 2d 386 (1964); Newton v. City of Tuscaloosa, 251 Ala. 209, 218, 36 So. 2d 487 (1948). With respect to the State's second issue, the trial court stated in its order: Once again, we disagree. Even assuming that the contract was not void under § 29-2-41, James's attorneys would have no claim for a fee under the contract because the undisputed evidence established that they did not "substantially participate" in the Attorney General's negotiation of the national tobacco settlement. As *422 previously stated, the document on which the attorneys relied clearly states: "Provided, if a proposed settlement is reached by the Attorney General without the Attorneys' substantial participation, no Attorneys' fees will be paid to the Attorneys." Walter Byars testified as follows: We can find no evidence in the record that refutes Mr. Byars's testimony; therefore, we find no evidence to support the trial court's conclusion that James's attorneys "substantially participated" in the negotiation of the national tobacco settlement. Likewise, the record does not indicate that the mere filing of the action by James's attorneys in any way assisted the attorney general in reaching a settlement with the tobacco industry. To the contrary, the undisputed evidence indicates that James's attorneys vigorously opposed Alabama's entering into the settlement, which, when James's attorneys filed their action (November 12, 1998), was imminent. Therefore, the trial court had no sound legal basis for ordering that over $2 million in attorney fees and expense reimbursements be paid to James's attorneys. Based on our examination of the record and the briefs, we conclude that any argument in favor of authorizing the withdrawal of such a substantial amount of money from funds earmarked for potential deposit into the Children First Trust Fund (which was established to benefit "at-risk children," see Ala.Code 1975, § 41-15B-1 et seq.), in order to pay for the particular legal services that were rendered here (the filing of a lawsuit that was opposed by both the Attorney General and the incoming Governor), is untenable. With no contractual underpinning to support an award, we will not uphold the award of a fee that breaks down to $2,051.50 per hour for each attorney; for one attorney's paralegals; and for another attorney's "staff time." We recognize, however, that § 41-15B-2(i) states that the Governor has the authority to "file any litigation necessary to effectuate the compelling interest of the State of Alabama to recover tobacco-related damages incurred by the state or pursue any other legal cause of action in which the state has an interest," and that Governor James did authorize these attorneys to file an action on behalf of the State.[3] Whether that course of action was wise or appropriate is not for us to decide. In Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9, 18 So. 2d 810, 815 (1944), this Court stated that "[a]ll ... questions of propriety, wisdom, necessity, utility, and expediency are held exclusively for the legislative bodies, and are matters with which the courts have no concern." We heed this same admonitionfor the courts to decide issues involving power, not wisdom or expediencywhen we are dealing with a decision such as this one by the head of the executive department of state government. At oral argument, Mr. Byars informed the Court that he had been paid $125 per hour for time he had spent preparing a complaint he had filed against the tobacco defendants before any "contract" was entered into by Governor James and James's attorneys. It is undisputed that on this contract James's attorneys spent 838.9 hours of attorney time; that members of their staffs spent 136 hours of staff time; and that James's attorneys incurred $10,879.86 in expenses at the behest of Governor James and on behalf of the State, for which they have not been paid. Therefore, we hold that, under *423 the doctrine of quantum meruit, James's attorneys are entitled to a reasonable fee. From our perspective, a reasonable fee should be based on no more than $125 per hour for the time spent on the case by an attorney ($104,862.50); no more than $75 per hour for the time spent on the case by an attorney's support staff ($10,200); plus documented expenses ($10,879.86). Our examination of the record indicates that a fee of more than $115,062.50, in addition to a reimbursement of $10,879.86 for expenses incurred, would be unreasonable as a matter of law. Under the circumstances (the attorneys' authorized legal challenge was thwarted by the Attorney General's settlement and his discharge of them as counsel for the State), we feel compelled, in accordance with general equitable principles, to allow an attorney's fee of this reduced amount to be paid to James's attorneys. For the foregoing reasons, the trial court's order is reversed and the case is remanded for entry of an order consistent with this opinion. REVERSED AND REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and MADDOX and BROWN, JJ., concur. SEE, J., concurs in the result. COOK, JOHNSTONE, and ENGLAND, JJ., dissent. LYONS, J., recuses himself. JOHNSTONE, Justice (dissenting). I respectfully dissent from the reversal of the attorney fee judgment entered by the trial court. My rationale consists of three elements. First, the contingency fee contract is legal, valid, binding, and not void. Second, the record supports the conclusion that, but for the services and participation of "James's attorneys," the tobacco defendants would have escaped liability to the State of Alabama entirely and would have avoided the payment of any compensation or settlement proceeds whatsoever to the State of Alabama. And, third, the sum awarded as the attorney fee by the trial court is reasonable and is, indeed, small in comparison with the multi-billion dollar recovery; and the amount and reasonableness were unchallenged in the trial court. A chronology of all the pertinent facts and an analysis of the relatively simple law will demonstrate that the judgment should be affirmed. In 1994, the State of Mississippi sued the tobacco industry to recoup Medicaid funds spent for the treatment of tobacco-related illnesses. Thereafter, various other states filed litigation against the tobacco industry. In May 1996, then Governor Forrest "Fob" James and then Attorney General Jeff Sessions appointed a task force to determine whether Alabama had a meritorious claim against the tobacco industry. In June 1996, the authorized agent and representatives of Philip Morris, Inc., R.J. Reynolds Tobacco Company, Brown and Williamson Tobacco Corporation, and Lorillard Tobacco Company sent to then deputy Attorney General (and now Attorney General) Bill Pryor a letter that explained their legal position regarding a "lack of merit of a Medicaid reimbursement suit against" them. On October 2, 1996, the task force, including Mr. Pryor, sent to Governor James a confidential and privileged report recommending that Alabama not file litigation against the tobacco industry because "[e]xpensive, risky, and lengthy litigation is not the proper vehicle to combat these public finance, health, and social issues." Report of the Task Force on Tobacco Litigation, 27 Cumb. Law Rev. 577, 652 (1996-97). The report of the task force was not released to the media. In November 1996, the voters of Alabama elected Attorney General Sessions to the United States Senate, and, on January 2, 1997, Governor James appointed Bill Pryor to be Attorney General, to serve the remainder of Sessions's term. At the end of February or the beginning of March *424 1997, a reporter for the Birmingham News asked a representative of Attorney General Pryor whether the task force had submitted a report to the Governor and the Attorney General. Attorney General Pryor "contacted" Philip Morris, R.J. Reynolds, Brown and Williamson and Lorillard and informed them that a member of the news media had requested a copy of the report of the task force. He also informed them that the report was critical of the Medicaid reimbursement lawsuit filed against them by attorneys general of other states, and that, if he released the report, he would send them a copy of it. Philip Morris, R.J. Reynolds, Brown and Williamson, and Lorillard informed Attorney General Pryor that they intended to defend all lawsuits vigorously. However, they assured Attorney General Pryor that, in the event of a settlement of any of the lawsuits, the citizens of Alabama "would not be disadvantaged by not having filed a similar suit." On March 6, 1997, Attorney General Pryor gave a reporter for the Birmingham News a copy of the confidential and privileged report of the task force, and on March 7, 1997, Attorney General Pryor gave the same reporter an exclusive interview. Attorney General Pryor also sent a copy of the report of the task force to Philip Morris, R.J. Reynolds, Brown and Williamson, and Lorillard. On March 10, 1997, Philip Morris, R.J. Reynolds, Brown and Williamson, and Lorillard filed a copy of the report of the task force as defensive material in the Mississippi Medicaid reimbursement lawsuit pending in the Supreme Court of Mississippi. On March 11, 1997, Philip Morris, R.J. Reynolds, Brown and Williamson, and Lorillard contacted Attorney General Pryor, praised the report of the task force, and stated again that, in the unlikely event of settlement, Alabama would not be disadvantaged for failing to file a lawsuit. In reliance of the representation of Philip Morris, R.J. Reynolds, Brown and Williamson, and Lorillard, Attorney General Pryor "publicly criticized the use of the judiciary to obtain financial advantages that may be best suited to the political or legislative arms of state and federal government," and stated that Alabama did not have a meritorious claim against the tobacco industry. In June 1997, national tobacco settlement negotiations began between various state attorneys general and the tobacco industry. The negotiations culminated in a proposed national tobacco settlement agreement that required the approval of the United States Congress. However, the agreement died when Congress failed to approve the settlement. On July 3, 1997, the State of Mississippi announced a settlement of its lawsuit against the tobacco industry. That settlement was not subject to the approval of Congress. On August 25, 1997, the State of Florida announced a settlement of its lawsuit against the tobacco industry. That settlement was not subject to the approval of Congress. On August 27, 1997, Attorney General Pryor sought to obtain assurances from the tobacco industry that Alabama would be afforded the same benefits accorded those states that had filed lawsuits which were ultimately settled. On September 16, 1997, Attorney General Pryor entered into a tolling agreement with Philip Morris, R.J. Reynolds, Brown and Williamson, and Lorillard. Only the provisions for the term of the Agreement appear in the record: On January 16, 1998, the State of Texas announced a settlement of its lawsuit against the tobacco industry. That settlement did not require the approval of Congress. In the spring of 1998, new national tobacco settlement negotiations began. Alabama did not participate in the negotiations nor did Alabama have a representative on the negotiations team, although the chief deputy Attorney General consulted on a daily basis with the negotiations team. In March 1998, Walter Byars became special counsel to Governor James. Byars worked with the Governor on proposed tobacco legislation and on identifying the options that Governor James and Alabama had to pursue a recovery from the tobacco industry. On April 15, 1998, Byars furnished Governor James with a legal opinion stating that the Governor had the authority to institute litigation against the tobacco industry. Byars recommended that the Governor direct Attorney General Pryor to file the litigation. On April 27, 1998, the Alabama Legislature passed the Children First Trust Fund Act, § 41-15B-1 et seq., Ala.Code 1975 (Cum.Supp.1999), which requires the Governor to "file any litigation necessary to effectuate the compelling interest of the State of Alabama to recover tobacco-related damages incurred by the state." § 41-15B-2(i), Ala.Code 1975. Governor James directed Byars to prepare a complaint against the tobacco industry. In June 1998, the Governor instructed Byars to find a group of attorneys to handle the litigation against the tobacco industry.[4] On July 28, 1998, Byars presented Governor James with a proposed complaint on behalf of the State of Alabama against the tobacco industry. The complaint sought to recover money spent by Medicaid, Public Education Health Insurance Plan, State Employment Insurance Plan, other funds, and agencies to treat tobacco-related diseases or illnesses. Governor James tendered the complaint to Attorney General Pryor or his deputy and requested the Attorney General to file the complaint. Attorney General Pryor refused to file the complaint on behalf of the State of Alabama. Effective July 28, 1998, Byars entered into a contingency fee contract for legal services with the State of Alabama through a contract with Governor James. The contract provided that Byars was to recover money from third-parties whose tobacco products caused or may cause tobacco-related illnesses to recipients of health benefits funded by the state. The contract authorized Byars to associate other attorneys as long as the association of other counsel did not increase the amount of the fee. Byars associated Jere Beasley, E. Ted Taylor, Larry Morris, and Michael J. Evans (herein collectively called "James's attorneys"). Concerned by the Attorney General's failure to act, Governor James asked James's attorneys whether he could file a lawsuit against the tobacco industry. James's attorneys advised the Governor about a "tolling agreement" Attorney General *426 Pryor made with some tobacco companies and about the effect of the Attorney General's failure to have all tobacco companies sign the tolling agreement. While Governor James proposed to file a complaint against the tobacco industry immediately, Attorney General Pryor advised the Governor that such a filing would breach the tolling agreement, which would then cause the statute of limitations to bar any action by the State. Attorney General Pryor advised the Governor to wait to file the complaint until the tolling agreement expired, at the end of the 105th Session of Congress. In November 1998, James's attorneys completed a final draft of the complaint against the tobacco industry. In an amended contingency contract executed on November 12, 1998, the Governor approved Byars's association of Beasley, Taylor, Morris, and Evans. The amended contingency fee contract contained the following provisions: Neither the original contingency fee contract nor the amended contingency fee contract was submitted to the Contract Review Permanent Legislative Oversight Committee. See §§ 29-2-41 and 29-2-41.2(b), Ala.Code 1975, hereinafter discussed. That same day, November 12, 1998, because James's attorneys feared that Attorney General Pryor might have allowed the statute of limitations to run with regard to a major portion of the tobacco industry, including smokeless tobacco, James's attorneys filed the complaint they had prepared in the name of Governor James on behalf of the State of Alabama, immediately following the adjournment of the 105th Congress. The complaint specifically sued 28 tobacco product companies, including smokeless tobacco companies and one cigarette paper manufacturer. The complaint asserted various tort-based counts, including negligence, willfulness, outrage, AEMLD, and conspiracy. Still later that same day, November 12, 1998, Attorney General Pryor filed a complaint against Philip Morris, R.J. Reynolds, Brown and Williamson, and Lorillard only. The Attorney General's complaint sought damages for breach of contract, but did not seek any equitable relief. Attorney General Pryor's complaint alleged that Philip Morris, R.J. Reynolds, Brown and Williamson, and Lorillard breached a contract by not including Alabama in the national tobacco settlement. *427 On November 17, 1998, James's attorneys amended their complaint to assert the same breach of contract. That same day, Attorney General Pryor tendered two settlement agreements to Governor James. One agreement settled the State's claims involving smoking tobacco and the other agreement settled the State's claims involving smokeless tobacco. The deadline to accept the settlement offers was November 20, 1998. James's attorneys reviewed the agreements and objected to the inclusion of the attorneys in Blaylock v. The American Tobacco Company, Montgomery County Circuit No. CV-96-1508, a private class action, to receive payment of attorney fees from the settling tobacco defendants. James's attorneys also reviewed the tolling agreement between the Attorney General and Philip Morris, R.J. Reynolds, Brown and Williamson, and Lorillard to determine whether the claims against some tobacco defendants were barred by the statute of limitations, because those tobacco defendants were not signatories to the tolling agreement. Governor James refused to sign the settlement agreements because Alabama would receive only $3,000,000,000 or $700 per person, when Mississippi would receive $4,400,000,000 or $1,600 person and Minnesota would receive $6,100,000,000 or $1,300 per person. Because of the statute-of-limitations problems, however, James's attorneys advised the Governor to allow the Attorney General to accept the settlement agreements. Although unsatisfied with the amount of the settlement agreements, Governor James on November 20, 1998, empowered Attorney General Pryor to settle the litigation. Within one hour of receiving authority to settle the litigation, Attorney General Pryor discharged James's attorneys. He amended the settlement agreement, for Alabama only, to exclude the Blaylock case as the "tobacco settlement vehicle," and included the case that he had filed as the settlement vehicle. In Exhibit S to the Master Settlement Agreement, a listing of attorneys to be paid by the tobacco defendants, Attorney General Pryor stated that "`[t]he State of Alabama had no outside counsel.'" Exhibit S, however, does list the attorneys representing Blaylock as being entitled to receive an attorney fee. On December 11, 1998, Attorney General Pryor, Blaylock, Philip Morris, and the other tobacco companies filed a joint motion for approval of the Master Settlement Agreement. They requested entry of a final consent judgment. On February 26, 1999, the trial court conducted a fairness hearing in the actions filed by Attorney General Pryor, Blaylock, and Governor James. At the fairness hearing, a representative of the Attorney General conceded that Governor James had authority to file the tobacco lawsuit and to hire attorneys to pursue that litigation. On March 3, 1999, the trial court entered a final consent judgment dismissing with prejudice all claims of the State. Likewise, the court dismissed without prejudice all claims in the Blaylock action. The trial court, sua sponte, entered a supplemental order, stating that it was appropriate to compensate James's attorneys for their efforts in the tobacco litigation and directing James's attorneys to file fee petitions. On March 15, 1999, James's attorneys, except Jere Beasley, filed a joint petition for attorney fees and expenses to be paid by the tobacco defendants or, in the alternative, to be paid by the State. James's attorneys, except Beasley, submitted affidavits delineating, in hours and minutes, the time each spent on the litigation. They also listed the expenses they each incurred. Byars submitted 195.25 hours plus 20.75 hours for his paralegal and expenses of $4,411.51. Evans submitted 125.5 hours and expenses of $2,250. Taylor submitted 249 hours plus "staff time" of 115.25 hours and expenses of $3,682.35. Morris submitted 269.15 hours and expenses of $536. James's attorneys suggested a total fee of $1,939,357 plus expenses. *428 On March 17, 1999, Attorney General Pryor filed a response challenging the validity of the contingency fee contract on the ground that the contract had not been submitted to the Contract Review Permanent Legislative Oversight Committee. He argued also that James's attorneys were not entitled to a fee under the contract. The Attorney General did not, however, challenge the amount or reasonableness of the attorney fee sought. On April 9, 1999, the trial court conducted a hearing on the joint fee petition. James's attorneys presented expert testimony from Fred D. Gray, Esq., and John Tabor, Esq. Gray and Tabor both testified regarding the fee petition, the attorney affidavits, the settlement agreements, and the reasonableness of the fee. They also testified about recovery under quantum meruit. Gray testified that a $2,000,000 fee was reasonable under contingency fee contract or under quantum meruit. Tabor testified that the $2,000,000 fee, as stated by Gray, was reasonable under the contingency fee contract or quantum meruit, but that he was prepared to testify in favor of a larger fee. Additionally, Jim Main and Byars both testified about the fee petition and the reasonableness of the requested fee. Attorney General Pryor did not call any witnesses or offer any evidence and did not cross-examine Gray and Tabor. He did cross-examine Main and Byars. Attorney General Pryor did not dispute or object to the amount of the attorney fee requested by James's attorneys and did not dispute or object to the amount of the attorney fee recommended Tabor and Gray. Attorney General Pryor did argue that James's attorneys were not entitled to an attorney fee because the contingency fee contracts were void and because they did not "substantially participate" in the tobacco settlement. On May 7, 1999, the trial court entered an order stating, in pertinent part: Section 29-2-40, Ala.Code 1975, created the Contract Review Permanent Legislative Oversight Committee. The responsibilities of the Committee are stated by § 29-2-41, Ala.Code 1975, as follows: That same section also provides, in pertinent part: Thus this section can operate to void only unreviewed contracts to be paid out of appropriated funds on state warrants The term personal and professional services is defined in § 29-2-41.2 as including "independent contractor agreements as well as individual employment agreements." Subsection (b) of § 29-2-41.2 specifically governs contracts for employment of attorneys to provide legal services to the State or its agencies. That section provides: The Attorney General argues that § 29-2-41.2 must be read by itself, not in pari materia with § 29-2-40 and § 29-2-41, and that § 29-2-41.2 voids ab initio the contingency contracts of James's attorneys. Section 29-2-41.2, read by itself, however, does not contain any void-ab-initio provision or, indeed, any sanction at all. "The cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute. Gholston v. State, 620 So. 2d 719 (Ala.1993)." Ex parte State Dep't of Revenue, 683 So. 2d 980, 983 (Ala.1996). In determining legislative intent, "the entire Act must be examined and construed as a whole, and, if possible, every word in it given effect." McWhorter v. State Bd. of Registration for Professional Engineers & Land Surveyors ex rel. Baxley, 359 So. 2d 769, 771 (Ala.1978). Moreover, "[s]ections of the Code dealing with the same subject matter are in pari materia. As a general rule, such statutes should be construed together to ascertain the meaning and intent of each." Locke v. Wheat, 350 So. 2d 451, 453 (Ala.1977) (citations omitted). See also Tuders v. Kell, 739 So. 2d 1069, 1072 (Ala.1999), and Lambert v. Wilcox County Comm'n, 623 So. 2d 727 (Ala.1993). Section 29-2-41.2 defines the term "personal and professional services" used in *432 § 29-2-41 and includes contracts for legal services in that term. As already observed, the void-ab-initio provision is contained in § 29-2-41, not § 29-2-41.2, which, if not construed in pari materia with § 29-2-41, contains no penalty at all for failing to submit a contract for the legal services to the Contract Review Permanent Legislative Oversight Committee. The result is exactly the same if §§ 29-2-40, 29-2-41, and 29-2-41.2 are construed in pari materia, as obviously they should be, inasmuch as they all deal with the same subject matter: because the void-ab-initio sanction appears in the very same section that contains the language limiting its application to "contracts for ... professional services with ... individuals to be paid out of appropriated funds ... on a state warrant," the void-ab-initio provision does not apply to any contracts not to be paid out of appropriated funds on a state warrant, like the contingency fee contracts here, which expressly state that James's attorneys' fee is to be paid out of "the recovered proceeds" of the tobacco case settlements. The trial court correctly determined that the contingency fee contracts between James's attorneys and the State were not subject to review by the Contract Review Permanent Legislative Oversight Committee. Consequently, the contingency fee contracts are not void ab initio or void at all pursuant to §§ 29-2-40, 29-2-41, and 29-2-41.2 for lack of such review. The amended contingency fee contract states that, "if a proposed settlement is reached by the Attorney General without the Attorneys' substantial participation, no Attorneys' fees will be paid to the Attorneys." Whether James's attorneys' services constituted "substantial participation" in the settlement is a factual question. The State's argument that James's attorneys did not substantially participate in the settlement of the tobacco litigation is mistaken. Effective April 27, 1998, the Children First Trust Fund Act authorized Governor James only, unless he authorized the Attorney General to act, to pursue litigation against the tobacco industry. § 41-15B-2(i). The Children First Trust Fund Act prohibits the Attorney General from settling any litigation by an executive department or agency under the control of the Governor. Thus, after April 27, 1998, Attorney General Pryor could not reach a settlement with the tobacco industry unless Governor James authorized him to do so. Governor James did not authorize Attorney General Pryor to settle with the tobacco industry until November 20, 1998, when James's attorneys advised the Governor to authorize the Attorney General to accept the settlement offers because of statute of limitations problems resulting from the tolling agreement. Without the research by James's attorneys and their recommendation to the Governor, Attorney General Pryor would not have received the authority to accept the settlement agreements and, without the delegation of authority to settle, Attorney General Pryor could not have concluded the settlements. Moreover, in its order awarding the attorney fee and expenses to James's attorneys, the trial court found their substantial participation as a fact and supported that fact-finding with a detailed description of their participation. In summary, the law does not invalidate the contingency fee contracts; the record amply supports the trial court's finding that James's attorneys substantially participated in the settlement of the litigation against the tobacco industry; and the State does not challenge either the amount or the reasonableness of the attorney fee, and the record supports the reasonableness of the fee. Thus, the judgment of the trial court awarding a $2,000,000 attorney fee plus costs to James's attorneys should be affirmed. COOK, J., concurs. *433 ENGLAND, Justice (dissenting). I respectfully dissent. While I agree with that portion of the main opinion concluding that the attorneys are entitled to a reasonable fee under the doctrine of quantum meruit, I am not prepared to say what that fee should be. The trial court, based on the evidence before it, concluded that the evidence supported the award of a $2-million attorney fee "as reasonable on a contingency fee basis as provided in the contractual arrangements between the State and State's Counsel, or based upon quantum meruit for services performed." No one offered testimony to rebut the testimony indicating that $2 million was a reasonable fee. I note that the parties now opposing the $2-million fee on this appeal had an opportunity to offer rebuttal testimony at trial but did not do so. "[O]ur review is restricted to the evidence and arguments considered by the trial court." Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala.1992) (citing Rodriguez-Ramos v. J. Thomas Williams, Jr., M.D., P.C., 580 So. 2d 1326 (Ala.1991)). Thus, rather than setting a fee itself, this Court should, since it is reversing an order that was based on a finding that the contingency-fee contract was valid, remand this case for an evidentiary hearing so that an attorney fee can be determined under the doctrine of quantum meruit, without the trial court's considering the contingency-fee contract as a factor in setting a reasonable attorney fee. I note that the trial court made a finding that James's attorneys "made several `substantial contributions' to bringing about the settlement." Although such "substantial contributions" cannot be considered in connection with a determination of whether a fee should be awarded under the contract that the main opinion concludes was void ab initio, such contributions can be considered in determining a reasonable attorney fee under the doctrine of quantum meruit. The result obtained is a factor to be considered under the doctrine of quantum meruit. See Kilgore v. Baker, 361 So. 2d 106 (Ala.1978). For the foregoing reasons, I would remand this case with instructions for the trial court to schedule an evidentiary hearing, on an expedited basis, to determine the amount of a reasonable attorney fee based on the doctrine of quantum meruit, and I would further direct the trial court not to consider, as a factor in determining that fee, the contract that the main opinion concludes is void ab initio for noncompliance with Ala.Code 1975, § 29-2-41. [1] This case was originally assigned to another Justice on this Court; it was reassigned to Justice Houston on March 22, 2000. [2] Only four of these five attorneys are parties to this appealWalter Byars, Ted Taylor, Larry Morris, and Michael Evans. One of the attorneys, Jere Beasley, declined to accept a fee for his services in the case. This Court granted the State's motion to dismiss Mr. Beasley as an appellee; therefore, he is not a party to this appeal. [3] The question whether § 41-15B-2(i) is constitutional under this Court's holding in Ex parte Weaver, 570 So. 2d 675 (Ala.1990), is not before us, and we do not address it. [4] James Allen Main, Governor James's legal advisor and then executive secretary, testified that, in June 1998, Attorney General Pryor told Governor James that the statute of limitations against the tobacco defendants had run in May 1998 because, in May 1996, Attorney General Pryor had attended a meeting with other state attorneys general and then and there had acquired knowledge of the facts and theories of the fraud claims. Attorney General Pryor told the Governor that, if he filed suit against the tobacco defendants before the termination of the tolling agreement, then the State of Alabama would receive nothing.

April 14, 2000

b26a54d9-c718-45e5-a785-8b1940e140a5

Rodgers v. Hopper

768 So. 2d 963

1981340

Alabama

Alabama Supreme Court

768 So. 2d 963 (2000) Walter RODGERS v. Joe HOPPER et al. 1981340. Supreme Court of Alabama. April 7, 2000. *965 Richard J. Stockham III and Hunter C. Carroll of Stockham & Stockham, P.C., Birmingham, for appellant. Andrew Redd, general counsel, Department of Corrections, for appellees. MADDOX, Justice. The Alabama Corrections Institute Finance Authority ("ACIFA"), the Department of Corrections (sometimes referred to herein as "the Department"), and certain officials of each of these two entities were named as defendants in a lawsuit. The lawsuit was filed by a correctional officer who had been stabbed by an inmate. The trial court entered a summary judgment in favor of these defendants, and the plaintiff appealed. We must determine whether these defendants were entitled to immunity. Because this appeal is from a summary judgment, our review is governed by this standard: Ex parte Alabama Dep't of Transp., 764 So. 2d 1263 (Ala.2000). Walter Rodgers, a correctional officer at St. Clair Correctional Facility ("St.Clair"), *966 was stabbed by an inmate while he was at work. St. Clair is a large facility, and it contains many cells, each of which contains two air vents. James DeLoach, the warden of St. Clair at the time of the stabbing, testified in his deposition that the prison had experienced problems concerning crude, prisoner-made knives. In fact, the use of these knives was a primary source of physical harm to correctional officers. According to DeLoach, some of these weapons were discovered to have been made from slats taken from air vents located in prisoners' cells. DeLoach said that while the prison had experienced problems with these weapons, the warden who preceded him had decided that the cost of replacing these vents with a safer grate was prohibitive. After this decision was made, an inmate stabbed Rodgers in the fall of 1996 with a knife made from an air-vent slat that had been taken from the vents the warden had decided not to replace. Rodgers sued Joe Hopper in his official capacity as commissioner of the Department of Corrections, as a member of the Capital Outlay Oversight Commission (which is affiliated with the Department), and as the vice president of ACIFA; Michael Haley, as Hopper's successor in each of the aforementioned capacities; and James DeLoach, who was the warden of St. Clair when the stabbing occurred. Rogers alleged negligence, wantonness, and violations of his due-process rights guaranteed under the Alabama Constitution.[1] The trial court granted the defendants' jointly filed motion for a summary judgment, holding that they were immune from liability pursuant to Art. I, § 14, of the Constitution of Alabama 1901. Rodgers's appeal from the summary judgment raises three issues: (1) Whether ACIFA is an agency of the State within the meaning of Art. I, § 14, of the Constitution; (2) whether the Legislature has waived sovereign immunity for the Department of Corrections; and (3) whether the individual defendants are entitled to immunity. Rodgers argues that ACIFA is not entitled to sovereign immunity because, he argues, it is not an agency of the State and thus is not protected by Art. I, § 14, of the Constitution. Section 14 provides: "[T]he State of Alabama shall never be made a defendant in any court of law or equity." This Court has held that "the use of the word `State' in Section 14 was intended to protect from suit only immediate and strictly governmental agencies of the State." Tallaseehatchie Creek Watershed Conservancy Dist. v. Allred, 620 So. 2d 628, 631 (Ala.1993) (quoting Thomas v. Alabama Mun. Elec. Auth., 432 So. 2d 470, 480 (Ala.1983)). Thus, we must determine what constitutes an "immediate and strictly governmental agenc[y]." The test for determining whether a legislatively created body is an immediate and strictly governmental agency for purposes of a sovereign-immunity analysis involves an assessment of (1) the character of the power delegated to the body; (2) the relation of the body to the State; and (3) the nature of the function performed by the body. Armory Comm'n of Alabama v. Staudt, 388 So. 2d 991, 993 (Ala.1980). In Tallaseehatchie Creek Watershed Conservancy Dist. v. Allred, supra, we applied these factors to an entity with powers similar to those of ACIFA. The Legislature had organized the Tallaseehatchie *967 Creek Watershed Conservancy District ("Tallaseehatchie Creek") as a watershed conservancy district ("WCD"), pursuant to § 9-8-50 et seq., Ala.Code 1975. As a WCD, Tallahassee Creek was authorized to act as an agent of the State. It enjoyed the customary governmental power of eminent domain; it was exempt from State and local taxation; and it benefited from legislative appropriations. See §§ 9-8-61(1), 9-8-61(7), and 9-8-67. Despite these decidedly governmental characteristics, we held that Tallaseehatchie Creek, as a WCD, was an independent entity, and, thus, was not entitled to sovereign immunity. Tallaseehatchie Creek, 620 So. 2d at 631. This Court based its holding in that case on several key characteristics that distinguished WCDs as entities separate from the State. Those characteristics included the ability to: (1) sue and be sued; (2) enter into contracts; (3) sell and dispose of property; and (4) issue bonds. Id. at 630 (citing §§ 9-8-25(a)(13), 9-8-61(6), and 9-8-61(4) and (5)). Notably, the Legislature also had expressly provided that debts and obligations of a WCD were not the State's debts and obligations. Id. (citing § 9-8-61(3)). We found this final characteristic to be dispositive, stating: Tallaseehatchie Creek, 620 So. 2d at 630. In the present case, ACIFA has these same qualities, qualities suggesting that it is an entity independent of the State. These qualities include: (1) the power to sue and be sued; (2) the power to enter into contracts; (3) the power to sell and dispose of property; (4) the power to issue bonds; and (5) exclusive responsibility for its financial obligations (the same quality that we found dispositive in Tallaseehatchie Creek). See §§ 14-2-8(2), 14-2-8(5) through (7), 14-2-12, and 14-2-24. ACIFA argues that, notwithstanding that it has those qualities, it is organizationally intertwined with the State by virtue of the State's oversight power regarding ACIFA's chief operating activity prison construction. This oversight power, however, is not different from the power to direct operations that is commonly exercised by the owner of any ordinary business. In this case, the State's power to direct operations includes the power to approve prison-construction plans and the use of prison labor. ACIFA's relationship with the State does not persuade us to accept its argument. Rather than looking to ACIFA's operations, we must look to its organizational and financial structure, as we did with the WCDs in Tallaseehatchie Creek. Accordingly, we conclude that ACIFA and, derivatively, its officials are not entitled to sovereign immunity. Rodgers argues that the Legislature, by enacting what is now § 14-1-10, Ala.Code 1975, expressly consented to the filing of lawsuits against the Department of Corrections. That Code section reads in pertinent part: We have carefully considered this argument. We conclude, however, that whether the Legislature intended to consent to the filing of such lawsuits is irrelevant, because, even if the Legislature intended to consent, it was powerless to do so because *968 of § 14 of the Constitution. This Court observed in Alabama State Docks v. Saxon, 631 So. 2d 943 (Ala.1994), that "[i]t is familiar law in this state that § 14 `wholly withdraws from the Legislature, or any other state authority, the power to give consent to a suit against the state.'" 631 So. 2d at 946 (quoting Dunn Constr. Co. v. State Bd. of Adjustment, 234 Ala. 372, 376, 175 So. 383, 386 (1937)); see also Ex parte Cranman, [Ms. 1971903, June 16, 2000] ___ So.2d ___ (Ala.2000)[*] (discussing the difference between immunity in Federal law and immunity in our State law). Based on the law of immunity applicable in the present case, we conclude that only a constitutional amendment superseding § 14 can result in the consent that Rodgers claims to exist. We recognize that there are situations in which the Legislature can validly consent to lawsuits against a governmental agency, such as where the immunity is, itself, derived from a statute, see, e.g., Weeks v. East Alabama Water, Sewer & Fire Protection Dist., 401 So. 2d 26 (Ala.1981) (where the defendant agency's immunity was derived from § 11-89-15, Ala.Code 1975); or where the defendant governmental agency is a county or municipality and the lawsuit would implicate a treasury other than the State's. See, e.g., Jackson v. City of Florence, 294 Ala. 592, 320 So. 2d 68 (1975) (involving a municipal corporation); and Lorence v. Hospital Bd. of Morgan County, 294 Ala. 614, 320 So. 2d 631 (1975) (involving a county hospital board). The present case, however, is distinguishable from those cases because (1) the immunity involved in this case is derived from Art. I, § 14, of the Constitution, and (2) Rodgers's lawsuit seeks a judgment against the Department of Corrections, a judgment that would, if obtained, be paid from the treasury of the State rather than from the treasury of a county or municipal corporation or some other similarly situated governmental entity created by the Legislature. Accordingly, we conclude that the Department is entitled to sovereign immunity. Rodgers argues that he was entitled to "equitable relief" because he was seeking to compel Hopper and DeLoach[2] to perform their legal duties. By this argument, Rodgers attempts to invoke one of the well-recognized exceptions to the sovereign-immunity defensethe rule that § 14 does not apply to bar actions by which a plaintiff seeks "to compel State officials to perform their legal duties." DeStafney v. University of Alabama, 413 So. 2d 391, 393 (Ala.1981). In this case, however, Rodgers cannot point to any breach by the defendants of a legal duty that is contemplated by this exception to § 14. We note that the "legal-duty" exception applies only where a law, a regulation, or a validly enacted internal rule commands a specific course of conduct. Cf. Stark v. Troy State Univ., 514 So. 2d 46, 50 (Ala.1987) ("[I]f the individual defendants have not acted toward the plaintiff in accordance with rules and regulations set by the university, their acts are arbitrary and an action seeking to compel them to perform their legal duties will not be barred by [§ 14 of the Constitution]"). Rodgers *969 does not cite any Department rule or regulation, or any act of the Legislature, that could serve as a basis for our holding this lawsuit against the individual defendants to be authorized by this exception. From what we can tell from his brief, he is arguing only that Hopper and DeLoach had a legal duty not to be negligent. We conclude that Hopper, DeLoach, and the parties who subsequently assumed Hopper and DeLoach's offices are entitled to § 14 immunity, including immunity against Rodgers's "equitable claim." The claims against the Department of Corrections and the individual defendants serving in their official capacities on that institution's behalf are barred by § 14. As to those claims, the summary judgment is affirmed. Rodgers's claims against ACIFA and its vice president, however, are not barred by the doctrine of sovereign immunity; therefore, as to those claims, we reverse the judgment of the trial court, and we remand the case for a trial on those claims. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HOOPER, C.J., and HOUSTON, COOK, SEE, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. LYONS, J., concurs in the result. [1] Rodgers's original pleadings named Brice Building Company ("Brice") as a defendant, but Brice had obtained a final summary judgment, from which Rodgers did not appeal. Furthermore, Rodgers initially pleaded an additional claim against each named defendant, seeking a recovery under 42 U.S.C. § 1983 for a violation of his Federal right to due process. This allegation allowed one of the defendants to remove the case to the United States District Court for the Northern District of Alabama. Rodgers, however, voluntarily dismissed the Federal due-process claim while this action was pending before that court; that court then remanded the case to the Montgomery Circuit Court. [*] Note from the reporter of decisions: The Supreme Court, on June 16, 2000, withdrew the Cranman opinion of November 24, 1999, and substituted another opinion. As of the date this opinion in Rodgers v. Hopper was released for publication, the June 16, 2000, opinion in Cranman was pending on application for rehearing and had not been released for publication in the official reports. [2] Rodgers sued Hopper and DeLoach in their official capacities; therefore, this lawsuit was, in effect, against their positions rather than against them personally. They argue that Rodgers's claims are now moot because Hopper and DeLoach no longer serve the State in the capacities alleged in the complaint. We disagree. Under Rule 25(d)(1), Ala. R. Civ. P., when a public officer, such as Hopper or DeLoach, becomes a party to a lawsuit and then "ceases to hold office, ... the officer's successor is automatically substituted" in the action, and "any misnomer" thereafter occurring in the case "and not affecting the substantial rights of the parties" is to be disregarded.

April 7, 2000

e0e9b375-8ff0-44fe-98b7-c28e3e244923

Ex Parte Walker

800 So. 2d 135

1972175

Alabama

Alabama Supreme Court

800 So. 2d 135 (2000) Ex parte Ruffus WALKER.[1] (In re Rufus Walker v. State). 1972175. Supreme Court of Alabama. March 17, 2000. Ruffus Walker, petitioner, pro se. *136 Bill Pryor, atty. gen., and James B. Prude, asst. atty. gen., for respondent. LYONS, Justice. Ruffus Walker was convicted in 1993 of murder made capital because it was committed during a robbery and a rape, and he was sentenced to life imprisonment without the possibility of parole. On direct appeal, the Court of Criminal Appeals affirmed his conviction, without opinion. Walker v. State, 655 So. 2d 65 (Ala.Crim. App.1994) (table). This present certiorari review is of a judgment of the Court of Criminal Appeals, on June 19, 1998, affirming, without opinion, the trial court's summary dismissal of Walker's third postconviction petition filed pursuant to Rule 32, Ala. R.Crim. P. Walker v. State, 738 So. 2d 943 (Ala.Crim. App.1998) (table). We granted Walker's petition for certiorari review to consider that aspect of his petition relating to the effectiveness, or ineffectiveness, of his counsel. He asserts that he had ineffective assistance of counsel both at trial and on his direct appeal. We affirm in part and reverse in part. Walker contends that the Court of Criminal Appeals erred in holding that the trial court had properly dismissed his third Rule 32 petition as procedurally barred. In its unpublished memorandum affirming the dismissal, the Court of Criminal Appeals wrote: Walker argues that a second or successive petition for postconviction relief cannot be deemed procedurally barred unless the prior petition or petitions were adjudicated on the merits, citing Blount v. State, 572 So. 2d 498 (Ala.Crim.App.1990). In the Rule 32 petition now before us, in the sections requesting information about any previously filed "petitions, applications, or motions with respect to this judgment," as to both his first and second petitions Walker placed a check beside the response "No" in answer to the question "Did you receive an evidentiary hearing on your petition, application, or motion?" In its motion to dismiss Walker's third petition, the State contended that the petition should be precluded as "successive," that Walker's claim of ineffective assistance of counsel "is without merit and was addressed on the first Rule 32 Petition and is precluded under the provisions of Rule 32.2(a)(4)," and that the trial judge had personal knowledge of the performance of Walker's counsel. The Court of Criminal Appeals *137 responded as follows in its memorandum decision: In his certiorari petition, Walker insists that his ineffective-assistance-of-counsel claims cannot be deemed procedurally barred because, he argues, his previous petitions were not adjudicated on their merits, and he contends that the decision of the Court of Criminal Appeals conflicts with Blount v. State, wherein the Court of Criminal Appeals stated: 572 So. 2d at 500-01. The Blount court went on to state that it did not consider the trial court's order denying the defendant's initial postconviction petition, an order entered without a hearing, "as a decision on the merits of the issues raised." Id. at 501. See, also, Ex parte Hill, 591 So. 2d 462, 463 (Ala.1991). In its brief in response to Walker's certiorari petition, the State argues that the ineffective-assistance-of-counsel claims in Walker's third petition should be denied as "successive" because, the State says, he raised them in previous petitions and they were denied on the merits: The State does not tell us, however, whether, as to either or both of his previously filed petitions, Walker was afforded an evidentiary hearing on his ineffective-assistance claim, nor does the State treat separately Walker's claim that his appellate counsel was ineffective. Heretofore, Walker's various claims of ineffective assistance have been considered collectively, without any differentiation between his claims that his lawyers rendered ineffective assistance at trial and his claims that they rendered ineffective assistance again during appellate proceedings. Those claims must, however, be discussed separately. As to Walker's claim that his trial counsel was ineffective, the Court of Criminal Appeals correctly held that that claim was precluded as successive. A circuit court may summarily dismiss a Rule 32 petition without an evidentiary hearing if the judge who rules on the petition has "personal knowledge of the actual facts underlying the allegations in the petition" and "states the reasons for the denial in a written order." Sheats v. State, 556 So. 2d 1094, 1095 (Ala.Crim.App.1989). In Walker's case, the judge who presided over his trial also ruled on his third Rule 32 petition. As that judge stated in his order denying that third petition, he had personal knowledge of the performance of Walker's trial counsel. Therefore, it was not necessary that he hold an evidentiary hearing on Walker's allegations that he had had ineffective assistance at trial. As to Walker's claim that he had had ineffective assistance of counsel on appeal, however, the Court of Criminal Appeals erred in holding that that claim was precluded as successive. That claim may be meritorious. If a Rule 32 petition contains allegations that, if true, would entitle the petitioner to relief, the trial court must hold an evidentiary hearing. Smith v. State, 581 So. 2d 1283 (Ala.Crim. App.1991) (citing Ex parte Boatwright, 471 So. 2d 1257 (Ala.1985)). Even though Walker was represented at trial and on appeal by the same lawyers, the trial court did not have personal knowledge of the performance of Walker's lawyers on appeal. Walker's claim alleging ineffective assistance of appellate counsel is based upon conduct of those lawyers that the trial court could not have observed. Therefore, the trial court erred in summarily dismissing Walker's third Rule 32 petition insofar as it stated a claim of ineffective assistance of appellate counsel, and the Court of Criminal Appeals erred in affirming that dismissal, even though Walker had filed other Rule 32 petitions in which he made this claim, because as to that claim he apparently has never received a hearing. We affirm the judgment of the Court of Criminal Appeals insofar as it relates to Walker's claim alleging ineffective assistance of trial counsel, but we reverse that judgment insofar as it relates to Walker's claim alleging ineffective assistance of appellate counsel. We remand the cause for the Court of Criminal Appeals to direct the trial court to hold an evidentiary hearing pursuant to Rule 32.9, Ala. R.Crim. P., to address only Walker's claim of ineffective assistance of appellate counsel. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS. HOOPER, C.J., and HOUSTON, COOK, SEE, JOHNSTONE, and ENGLAND, JJ., concur. *139 MADDOX, J., concurs specially. BROWN, J., recuses herself.[*] MADDOX, Justice (concurring specially). Although I agree that the defendant Walker must be afforded the opportunity to present evidence in support of his contention that his counsel provided ineffective legal assistance at the appellate level, I recognize the burdens that Rule 32, Ala. R.Crim. P., places on trial judges. It may be that, as a general matter, trial judges are not ideally suited to determine whether a defendant's appellate counsel provided effective legal assistance. However, we presently have no rules or standards that allow a defendant seeking postconviction relief to bring information before an appellate court on an issue such as this that has not been admitted into evidence in the trial court. If the trial court rules against Walker, he may seek review in an appellate court based on the record built in the trial court. [1] The defendant filed his petition under the name Ruffus Walker. The related case in the Court of Criminal Appeals spelled his name Rufus Walker. Materials filed in the Supreme Court carry both spellings. [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

March 17, 2000

871e81f8-7373-4b7b-8797-8ab534d61867

State v. Zimlich

796 So. 2d 399

1981536

Alabama

Alabama Supreme Court

796 So. 2d 399 (2000) Ex parte State of Alabama. (Re STATE of Alabama v. Wayne ZIMLICH). 1981536 Supreme Court of Alabama. May 5, 2000. Rehearing Denied July 7, 2000. *400 Bill Pryor, atty. gen., and James B. Prude, asst. atty. gen., for petitioner. Kenneth A. Nixon, Mobile; and Joseph D. Quinlivan, Jr., Mobile, for respondent. ENGLAND, Justice. Wayne Zimlich, a registered nurse-anesthetist, and his supervising physicians were sued in a medical-malpractice case; the plaintiff alleged that they had negligently caused the death of a patient during a surgical procedure. Zimlich testified at the trial of the malpractice case in October 1995. After the trial, Zimlich sued his insurance company, alleging that it had acted in bad faith in failing to settle the malpractice claim against him. After a trial in November 1997, he was awarded $15,000 against the insurance company. In the trial of his claim against the insurer, he alleged that he had been coerced into giving false testimony at the malpractice trial, and that the coercion was by the insurance company and its employees, the doctor who employed him, and the defense attorney for the insurance company. Zimlich was indicted in June 1998 for perjury. The indictment read: Zimlich moved to dismiss the indictment, arguing that it failed to allege the offense of perjury in the first degree because *401 it made no allegation that the alleged perjurious statement was "material." The trial court dismissed the indictment, stating: A second indictment was returned in January 1999. That indictment read: Zimlich moved to dismiss the second indictment, alleging that it was barred by the three-year statute of limitations. The trial court denied Zimlich's motion on May 11, 1999.[1] The court set the perjury case for trial on May 26, 1999. Zimlich petitioned the Court of Criminal Appeals for a writ of mandamus directing Judge Robert G. Kendall, the judge to whom Zimlich's perjury case was assigned (see note 1), to dismiss the second indictment. Judge Kendall denied a motion by Zimlich to stay his trial pending a ruling by the Court of Criminal Appeals. The Court of Criminal Appeals granted Zimlich's petition and ordered Judge Kendall to dismiss the second indictment, holding that it was barred by the statute of limitations. Ex parte Zimlich, 796 So. 2d 394 (Ala.Crim.App.1999). The Court of Criminal Appeals concluded that the first indictment tracked the language of § 13A-10-103, Ala.Code 1975, the statute defining third-degree perjury. That statute reads: "A person commits the crime of perjury in the third degree when he swears falsely." The statutory limitations period for commencing a prosecution for third-degree perjury, a misdemeanor, is 12 months. Ala.Code 1975, § 15-3-2. The Court of Criminal Appeals held that the first indictment did not operate to toll the running of the time for returning the second indictment because, it said, the first indictment charged an offense different from that charged in the second indictment and because the first indictment was void, having been returned more than 12 months after the alleged perjury had occurred at the October 9, 1995 trial. Id.[2] In order to obtain a writ of mandamus, the party seeking the writ must show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) a lack of another remedy; and (4) properly invoked jurisdiction of the court. Ex parte Gonzalez, 686 So. 2d 204 (Ala.1996) (citing Ex parte Ziglar, 669 So. 2d 133 (Ala.1995)). The State has now petitioned this Court for a writ of mandamus directing the Court of Criminal Appeals to set aside the writ of mandamus it issued on Zimlich's petition. Zimlich argued before the Court of Criminal Appeals that he would suffer irreparable harm if convicted of felony perjury because the felony conviction, he said, would deprive him of his license to practice his profession and thereby deprive him of his livelihood. The Court of Criminal Appeals quoted from Ex parte Spears, 621 So. 2d 1255, 1259 (Ala.1993), where this Court had stated that "mandamus review *403 will generally be restricted ... to those cases where one of the recognized exceptions applies, or to those extraordinary cases where the rights of the parties cannot be adequately protected by appellate review of a final judgment." That court concluded that Zimlich's rights could not be adequately protected if it denied mandamus review. Ex parte Zimlich, 796 So. 2d at 396. The State argues here that the Court of Criminal Appeals erred in issuing its writ of mandamus because, it says, Zimlich failed to establish that he had a clear legal right to the relief sought. We agree. We have stated: Ex parte Fowler, 574 So. 2d 745, 747 (Ala. 1990). We conclude that on his petition to the Court of Criminal Appeals Zimlich failed to establish that Judge Kendall had a duty to dismiss his indictment as barred by the statute of limitations and improperly refused to do so. "The 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." Ex parte Southland Bank, 514 So. 2d 954, 955 (Ala.1987). Zimlich did not show that he had a clear legal right to the order he sought. The State contends that the Court of Criminal Appeals erred in holding that the June 1998 indictment (the first indictment) charged third-degree perjury; that that indictment was void on the basis that it was returned after the one-year limitations period had expired; and that it did not toll the running of the limitations period for a prosecution of the offense charged in the second indictment. Zimlich argued in the Court of Criminal Appeals that the June 1998 indictment was void because it attempted to state a first-degree perjury charge but in actuality stated only a third-degree perjury charge because it did not allege that the alleged false statements made either during the malpractice trial or during Zimlich's trial against his insurance carrier were "material." In making this argument, Zimlich asserted that the Court of Criminal Appeals needed to decide whether Rule 15.5(c), Ala. R.Crim. P., applied; whether the tolling statute, § 15-3-6, Ala.Code 1975, applied and was superior to Rule 15.5(c); and whether the tolling statute permitted a subsequent indictment to increase the nature of the alleged offense from a misdemeanor to a felony. The uncertainty about the applicability of Rule 15.5(c) and § 15-3-6 and the question whether the State's error in regard to the first indictment was the kind of "inadvertent technical error" contemplated by Rule 15.5(c) (see Committee Comments to that rule) lead us to conclude that Zimlich had no clear legal right to an order by Judge Kendall dismissing the second indictment as barred by the statute of limitations, given that Zimlich, if improperly convicted, would have had a remedy by appeal. The State is entitled to a writ directing the Court of Criminal Appeals to set aside its writ of mandamus. *404 PETITION GRANTED; WRIT ISSUED. HOUSTON, COOK, LYONS, BROWN, and JOHNSTONE, JJ., concur. HOOPER, C.J., and MADDOX and SEE, JJ., concur in the result. [1] The perjury case based on the second indictment was assigned to Judge Chris Galanos. He recused himself before ruling on the motion to dismiss, after learning that the law firm he was planning to join upon resigning his judgeship represented the insurance company that had been involved in the medical-malpractice action. The case was reassigned to Judge Robert G. Kendall. [2] Although the Court of Criminal Appeals concluded that the first indictment charged Zimlich with misdemeanor perjury and that the language of the indictment tracked § 13A-10-103 (third-degree perjury), an equally persuasive argument can be made that it did not track § 13A-10-103 and did not charge misdemeanor perjury. We note that the indictment more closely tracked § 13A-10-104, which allows a person to be prosecuted for inconsistent statements that occurred within the statutory limitations period, and that it cited the felony-perjury statute, § 13A-10-101.

May 5, 2000

0c4bbfaa-059b-443b-be91-302e9109fb37

Ex Parte Jefferson County

767 So. 2d 343

1982281

Alabama

Alabama Supreme Court

767 So. 2d 343 (2000) Ex parte JEFFERSON COUNTY et al. (In re Jason Richards et al. v. Jefferson County et al.) 1982281. Supreme Court of Alabama. March 17, 2000. *344 William M. Slaughter and John W. Scott of Haskell, Slaughter & Young, L.L.C., Birmingham; and Jeffrey M. Sewell, Jefferson County Attorney, for petitioners. William J. Baxley and Joel E. Dillard of Baxley, Dillard & Dauphin, Birmingham, for respondents. PER CURIAM. Jefferson County, the defendant in a class action pending in the Jefferson Circuit Court, petitions for a writ of mandamus directing the trial court to dismiss that action on the ground of lack of subject-matter jurisdiction. We deny the writ. The class action was filed by certain Jefferson County taxpayers, on behalf of all Jefferson County taxpayers; the plaintiffs claimed, among other things, that an "occupational tax," which was authorized by Ala. Acts 1967, Act No. 67-406 (not codified), and implemented by Jefferson County Ordinance No. 1120, violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The trial court held the tax unconstitutional. The only substantive issue raised by Jefferson County in this petition is whether the trial court should have dismissed the action for lack of subject-matter jurisdiction. The county argues that the plaintiff taxpayers failed to timely serve the attorney general under Ala.Code 1975, § 6-6-227, and, therefore, that the trial court never acquired jurisdiction to rule on the constitutional challenge. The threshold issue presented by this petition is whether a petition for the writ of mandamus is an appropriate means for securing a review of the jurisdiction question. The trial court ruled that § 4 of Act No. 67-406 and § 1(B) of Ordinance No. 1120 are unconstitutional, on the ground that certain exemptions authorized by the act and included in the ordinance cause the tax to violate the Equal Protection Clause. In addition, the court enjoined Jefferson County from collecting the tax unless the county does so without applying the exemptions. The court also ordered that "[t]he tax receipts collected from the previously exempted taxpayers" be placed in an interest-bearing escrow account until the class action, particularly the remedy phase, can be concluded. Before filing this petition, Jefferson County had filed an appeal under Rule 4(a)(1)(A), Ala. R.App. P.; that rule allows an appeal from "any interlocutory order granting, continuing, modifying, refusing, or dissolving an injunction, or refusing to dissolve or modify an injunction." That appeal is presently pending in this Court (Jefferson County v. Richards, Docket No. 1981680). Jefferson County concedes that its appeal raises a number of substantive issues, including the merits of the constitutional issue and the jurisdiction issue raised by this petition. We stayed Jefferson County's appeal when we ordered an answer and briefs in connection with this petition.[1] *345 A writ of mandamus is an extraordinary remedy that we have consistently held 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). This Court has stated: Ex parte Spears, 621 So. 2d 1255, 1256 (Ala.1993). (Citations omitted.) Jefferson County contends that the delay that would be incurred by this Court's resolving the jurisdiction issue on appeal rather than in response to this mandamus petition would cause an "undue injury." After carefully considering the arguments of the parties, we are not persuaded that a petition for the writ of mandamus is the appropriate procedural vehicle for presenting this issue. However, because we stayed Jefferson County's appeal pending our consideration of this petition, we believe it would be inappropriate to further delay our consideration of the jurisdiction issue. Therefore, in order to facilitate the resolution of the pending litigation, we will address that issue. See Rule 1, Ala. R.App. P. Section 6-6-227 provides that when the constitutionality of a state statute is challenged the attorney general must be served with a copy of the complaint, in order to allow him to represent the interests of the people of the State of Alabama.[2] See Board of Trustees of Employees' Retirement System of the City of Montgomery v. Talley, 291 Ala. 307, 280 So. 2d 553 (1973). In interpreting § 6-6-227, this Court has consistently held that the failure to serve the attorney general will deny the trial court jurisdiction to resolve any claim based on the constitutional challenge. See Bratton v. City of Florence, 688 So. 2d 233, 234 (Ala.1996). Any ruling that a trial court makes on a constitutional issue, when the attorney general has not been given notice and the opportunity to intervene, is void. See Ex parte St. Vincent's Hosp., 652 So. 2d 225 (Ala.1994); Fairhope Single Tax Corp. v. Rezner, 527 So. 2d 1232 (Ala.1987). See, also, Busch Jewelry Co. v. City of Bessemer, 266 Ala. 492, 493, 98 So. 2d 50, 51 (1957). However, nowhere in § 6-6-227 or in Alabama caselaw do we find any requirement that the attorney general be served at any specific time during the litigation. This Court has stated: Ex parte Dothan-Houston County Airport Auth., 282 Ala. 316, 321, 211 So. 2d 451, 455 (1968); see, also, City of Mobile v. Salter, 287 Ala. 660, 664, 255 So. 2d 5, 7 (1971) ("The fact that the attorney general is not served or does not file a waiver early in the proceedings does not deprive the trial court of jurisdiction."); Armstrong v. Roger's Outdoor Sports, Inc., 581 So. 2d 414 (Ala.1990) (where this Court remanded for the appellant, pursuant to § 6-6-227, to notify the attorney general of his constitutional challenge within 90 days of the remand). The record before us indicates that the taxpayers served the attorney general on April 20, 1998. The record and briefs also indicate that hearings to determine the constitutionality of Act No. 406 and the corresponding county ordinance were held both before and after the attorney general had been served. The trial court did not rule on the constitutional issue until November 12, 1998, approximately six and one half months after the attorney general had been served. The attorney general clearly had notice of the action; the record indicates that he was notified in sufficient time that he could have moved to intervene in the case if he had felt that it was necessary to do so. However, the record does not indicate that he filed a motion for a continuance, a motion to intervene, or any other motion that would indicate that he wished to be heard on the matter.[3] See Talley, supra, wherein this Court addressed the issue whether the trial court lost jurisdiction because the attorney general had not been served with two amendments to the complaint: 291 Ala. at 310, 280 So. 2d at 555. (Citations omitted.) Therefore, based on the record before us, we conclude that the trial court had subject-matter jurisdiction. For the reasons stated above, we deny the writ. WRIT DENIED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., concurs specially. JOHNSTONE, Justice (concurring specially). I agree with the main opinion in its analysis of the merits of the jurisdictional *347 issue, and I agree with the denial of the writ of mandamus. Because I also agree that, "we are not persuaded that a petition for the writ of mandamus is the appropriate procedural vehicle for presenting this issue," 767 So. 2d 345, however, I think the writ should have been denied on this procedural ground rather than on the merits. We will soon eviscerate our general rule against using mandamus to achieve interlocutory appeals if we make an unrecognized exception to the general rule by addressing the merits of an unauthorized petition for writ of mandamus through some sense of convenience or judicial economy. These very considerationsjudicial economy and a balancing of the conflicting convenience interests of the respective partiesare the reasons for the general rule in the first place. [1] The taxpayers have moved to dismiss the appeal; however, because of our order staying the appeal, we have not yet ruled on their motion. [2] Section 6-6-223 provides: "Any person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder." (Emphasis added.) Section 6-6-227 provides that "if the statute, ordinance, or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard." A "statute" is "[a] law passed by a legislative body." Black's Law Dictionary (7th ed.1999). The taxpayers correctly point out that § 6-6-227 does not require that the attorney general be notified of a constitutional challenge to a county ordinance; however, it appears to us that the constitutionality of Act No. 67-406 (the enabling legislation that required the inclusion of the contested exemptions in the county ordinance) was at issue from the very beginning of the action. We further note that even if a trial court decides, sua sponte, that a statute is unconstitutional, its order is void unless the attorney general was served pursuant to § 6-6-227 and was given an opportunity to be heard. See Ex parte Northport Health Service, Inc., 682 So. 2d 52 (Ala.1996). We conclude, therefore, that the attorney general had to be notified of the constitutional challenge to Act No. 67-406. [3] The record indicates that it is customary for the Attorney General's Office to acknowledge service on the attorney general and to waive his right to further notification. Walter Turner, chief assistant attorney general, testified by affidavit as follows: "It is ... part of my duties to maintain the civil docket containing information on all civil cases served on this office including those served on us pursuant to Section 6-6-227 Code of Alabama, 1975. It is my normal and customary practice to answer this service by an acknowledgement and waiver. This pleading informs the Court that the Attorney General has been served but does not choose to be heard by the Court on the constitutionality of the statute, ordinance, or franchise under constitutional attack." Whether this practice on the part of the Attorney General's Office complies with the legislative intent underlying § 6-6-227 is not an issue in this present case.

March 17, 2000

754ed801-771f-428e-98d1-ec4108a3ba8b

Ex Parte Birmingham News, Inc.

778 So. 2d 814

1981445

Alabama

Alabama Supreme Court

778 So. 2d 814 (2000) Ex parte The BIRMINGHAM NEWS, INC. (Re The Birmingham News, Inc. v. Teresa Watson). 1981445. Supreme Court of Alabama. June 9, 2000. *815 Gregg L. Smith and Sarah J. Carlisle of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for petitioner. David E. Hampe, Jr., Birmingham, for respondent. BROWN, Justice. This is an invasion-of-privacy case arising from an alleged incident of sexual harassment in the workplace. The plaintiff, Teresa Watson, was employed by a temporary agency that placed her in a job with The Birmingham News, Inc. ("The News"), a newspaper publisher. She sued The News, alleging that it, through a person she claimed was its agent and whom she identified as "Derrick," had invaded her privacy by giving publicity to an incident between her and William Lowery, a security guard stationed at The News's place of business. After a jury trial, the *816 court, entered a judgment for the plaintiff on certain claims. The Court of Civil Appeals affirmed that judgment without an opinion, but with a written dissent. Birmingham News, Inc. v. Watson, 778 So. 2d 813 (Ala.Civ.App.1999). We granted certiorari review. We reverse and remand with instructions. Watson, an employee of Manpower Temporary Employment Services ("Manpower"), was assigned to work for The News. She worked at night in the mail room, inserting supplements into newspapers.[1] Lowery, an 80-year-old security guard, was employed by Pinkerton Security and Investigation Services, Inc. ("Pinkerton"). He also was stationed at The News. Lowery had worked at The News as a security guard for approximately 20 years. Watson and Lowery often worked during the same shift. Watson claimed that on the night of Thursday, September 15, 1994, Lowery hugged and kissed her as they rode up in the elevator at The News. Watson testified at trial that when she arrived at work that night Lowery told her he was going to "bachelor it up this weekend." Later that night, she went outside to move her car closer to the building where she was working. She testified that as she returned to the building she and Lowery engaged in conversation, mainly about her plans for her upcoming 21st birthday, and that he told her that his wife was out of town for the weekend. Watson stated that Lowery rode in the elevator with her as she returned to the mail room. She stated that during the elevator ride Lowery put his arms around her, kissed her on the cheek, and offered her $25. Watson testified that she pushed Lowery away and left the elevator when the door opened.[2] Watson immediately informed Tommy Bowman, her direct supervisor, about the incident. Bowman then notified Steve Patton, the mail room supervisor, about Watson's complaint. Bowman instructed Watson to keep the matter confidential. The following day, Watson met with Gail Moore, the director of The News's Human Resources Department;[3] Jim Payton, a manager with The News; and a representative from Manpower, and she gave them another statement about the incident. That same daydespite Bowman's instructions to the contraryWatson told her mother, who worked in The News's mail room, and Joyce Hughie, a coworker at The News, about the incident. Watson claims that after she returned to work on Monday night, another supervisor, "Derrick,"[4] said to her, "I don't want to get too close because I don't want a sexual-harassment suit against me." (C. 307.) Watson's mother testified at trial that she overheard Derrick telling "another lady" that he did not want to work near Watson because "he didn't want to lose his job." (C. 379.) Ann Brown, The News's chief of security, and Laura Dunson, who by 1997 had become the director of Human Resources (see note 3), testified at trial that The News's policy regarding contract employees was to remove them from their positions when an allegation of wrongdoing was made against them. After Watson made her complaint, Lowery was immediately removed from his work with The *817 News. Jerry Lightfoot, the district manager for Pinkerton, testified that Pinkerton's policy was to suspend the employee until an investigation was completed. Pinkerton reassigned Lowery to another job. Watson sued Pinkerton, The News, and Lowery, seeking damages based on claims alleging assault and battery, false imprisonment, invasion of privacy, and the tort of outrage. She made those claims against all three defendants. In addition, Watson alleged that Pinkerton and The News were liable for negligent hiring and supervision.[5] The trial court entered a judgment as a matter of law in favor of Pinkerton, The News, and Lowery on all claims except the claims against Lowery alleging assault and battery and false imprisonment and the claim against The News alleging invasion of privacy.[6] Those claims went to the jury. The jury returned a verdict against Lowery, awarding Watson $3. The jury also returned a verdict against The News, awarding Watson $6,000 ($1,500 in compensatory damages and $4,500 in punitive damages). The News filed a motion asking the court to "reconsider" its order denying the News's motion for directed verdict or, in the alternative, asking for a judgment notwithstanding the verdict.[7] The trial court denied the motion. The News appealed. The Court of Civil Appeals affirmed, without an opinion. In its memorandum of affirmance, the Court of Civil Appeals cited Johnston v. Fuller, 706 So. 2d 700 (Ala. 1997); Nipper v. Variety Wholesalers, Inc., 638 So. 2d 778 (Ala.1994); and Old Southern Life Insurance Co. v. McConnell, 52 Ala.App. 589, 296 So. 2d 183 (Ala. Civ.App.1974). Judge Crawley, dissenting, stated that, based on Johnston, he concluded that Watson had not proved the elements of the tort of invasion of privacy through "giving publicity to private information." (See the quotation from Johnston, infra, identifying the four kinds of wrongs that will support an invasion-of-privacy claim.) We agree with Judge Crawley. Watson failed to present substantial evidence in support of her invasion-of-privacy claim. Johnston, 706 So. 2d 700. Smith v. Vice, 641 So. 2d 785, 786 (Ala. 1994). Although the motion for a judgment as a matter of law was based partly on on The News's argument that it was not liable for the actions of Derrick because, The News contended, he was not acting within the scope of his employment when he spoke to Watson and because, The News further contended, it did not *818 ratify Derrick's behavior, we focus on The News's argument that Watson failed to prove a prima facie case of invasion of privacy. In Johnston, this Court presented the various invasion-of-privacy claims available under Alabama law: 706 So. 2d at 701. Watson's complaint alleged that The News had invaded her privacy by giving publicity to private information about her and that The News's giving that publicity had violated principles of ordinary decency.[8] In regard to a claimed invasion of privacy based on a defendant's giving publicity to private information, this Court has adopted the language and reasoning of Restatement (Second) of Torts § 652D (1977). Johnston, 706 So. 2d at 703. Section 652D states: Thus, in order to present a prima facie case of this particular kind of invasion of privacy, the plaintiff must present substantial evidence tending to show the existence of each of the elements set out in § 652D. The firstand keyelement in proving this invasion-of-privacy tort is "publicity." Johnston, 706 So. 2d at 703. Comment a to § 652D defines "publicity": making a "matter ... public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." See Johnston, 706 So. 2d at 703. "Publication," on the other hand, "is a word of art, which includes any communication by the defendant to a third person." Restatement (Second) of Torts § 652D cmt. a; Johnston, 706 So. 2d at 703. If a person has given "publicity" to a matter, then the communication is sure to reach the public. Restatement (Second) of Torts § 652D cmt. a; Johnston, 706 So. 2d at 703. Comment a adds: (Emphasis added.) Assuming that the alleged incident between Lowery and Watson concerned Watson's private life, The News did not invade Watson's privacy, because it did not give *819 publicity to the incident. The only evidence Watson presented that suggested any publicity was her testimony concerning Derrick's comment to her and her mother's testimony about the conversation she overheard between Derrick and "another lady." Watson presented testimony indicating only that The News, through Derrick, made comments to the plaintiff and to one other person. To comment to the plaintiff about the plaintiff's private life is not to give publicity to her private life; to give publicity to one's private life, a person has to make a communication to third persons. The evidence also indicated that, except for Watson's mother and Joyce Hughie, the only employees at The News who were told about the incident were those employees involved in the investigation of the incident. Moreover, in order for The News to conduct a proper investigation of Watson's complaint, the investigators had to interview Watson's supervisor and her coworkers. The News's giving Derrick and the other supervisors knowledge about the incident does not constitute giving "publicity" about the incident. Based on the record before us, we must conclude that Watson failed to present substantial evidence indicating that The News gave publicity to Watson's private life. Derrick's alleged communication about the incident was to only one person, or at most, to a small group of people. We need not address the other elements of the tort of invasion of privacy by "giving publicity to private information" because the absence of the publicity element is dispositive. Watson did not present substantial evidence of publicity, and, thus, failed to establish the threshold element of her invasion-of-privacy claim. The trial court should have entered a judgment in favor of The News. The judgment of the Court of Civil Appeals is reversed, and the case is remanded for that court to instruct the trial court to enter a judgment in favor of The News. REVERSED AND REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. [1] Watson testified at trial that she telephoned Manpower to receive her work assignment, i.e., to learn where and when she was to work. Manpower placed her at The News for approximately a year. [2] Lowery testified at trial that he did not kiss Watson, but that he had merely put his hands on her shoulder as he was standing in the elevator door. He also stated that he did not ride in the elevator with Watson. [3] Gail Moore was the director of the Human Resources Department at The News in 1994 and until 1997. In 1997, Laura Dunson succeeded Moore as director. [4] The record does not indicate Derrick's last name. [5] Watson also filed a sexual-harassment claim with the Equal Employment Opportunity Commission ("EEOC"). At the time of trial, the EEOC had not made a finding on the claim. [6] Although the complaint did not specify which form of invasion of privacy Watson was claiming, the trial court determined that the allegation was based on Derrick's statements or on the News's giving publicity to private information. [7] Rule 50, Ala. R. Civ. P., has renamed the "motion for a directed verdict" as a "motion for a judgment as a matter of law," and has renamed the "motion for a judgment notwithstanding the verdict" as a "renewed motion for a judgment as a matter of law." [8] In the brief submitted in support of its petition for the writ of certiorari, The News argued that if Watson also claimed invasion of a right to privacy by an intrusion upon seclusion, Watson failed to prove the elements of this form of privacy invasion as set forth in Johnston v. Fuller. However, we do not reach this issue. "It has long been settled that this Court can only address those issues that are set out in the petition as grounds for certiorari." Ex parte Franklin, 502 So. 2d 828, 828 n. 1 (Ala.1987) (citing Nix v. State, 271 Ala. 628, 126 So. 2d 123 (1961); Liberty Nat'l Life Ins. Co. v. Stringfellow, 265 Ala. 561, 92 So. 2d 927 (1957)).

June 9, 2000

5a855644-2aeb-4aca-a7e1-2f1a89f2314b

Monroe v. Baptist Health Care Foundation

772 So. 2d 414

1981456

Alabama

Alabama Supreme Court

772 So. 2d 414 (2000) H.E. MONROE, Jr., in his official capacity as commissioner of revenue for the State of Alabama; Sarah N. Spear, in her official capacity as revenue commissioner of Montgomery County, Alabama v. BAPTIST HEALTH CARE FOUNDATION and Baptist Outreach Services Corporation. 1981456. Supreme Court of Alabama. March 10, 2000. Rehearing Denied May 19, 2000. Thomas T. Gallion III and Constance C. Walker of Haskell, Slaughter, Young & Gallion, L.L.C., Montgomery, for appellants Montgomery County revenue commissioner. Gwendolyn B. Garner, asst. atty. gen., State Department of Revenue, for appellant state revenue commissioner. Tony G. Miller and Thomas H. Brinkley of Maynard, Cooper & Gale, P.C., Birmingham, for appellees. HOUSTON, Justice. Two questions were properly preserved for our review: First, is the use of property owned by a nonprofit corporation organized under the laws of Alabama and operated and used by that nonprofit corporation exclusively as an apartment complex for low-income and fixed-income elderly a use that is "exclusively" or "purely" charitable, so as to qualify for an exemption from the payment of ad valorem taxes under Amendment 373(k) of *415 the Constitution of Alabama of 1901 and Ala.Code 1975, § 40-9-1(1)? We conclude that it is. Second, can a vacant lot owned by that same nonprofit corporation and held for future use in close connection with the operation of the apartment complex be granted a similar exemption? We conclude that it can be. Therefore, we affirm the judgment of the trial court. Amendment 373(k) provides in pertinent part that "property devoted exclusively to... charitable purposes" is exempt from ad valorem taxation. Section 40-9-1(1) states in pertinent part that "all property, real and personal, used exclusively for ... purposes purely charitable" is exempt from ad valorem taxation. This case addresses the ad valorem taxation of two parcels of real property. The first parcel is used for operation of a "well-elderly" retirement home known as "Bell Oaks"; that home is owned and operated by Baptist Outreach Services Corporation ("BOSC"), which is a nonprofit corporation exempt from federal income taxation pursuant to I.R.C. § 501(c)(3). The second parcel of land is a vacant strip adjacent to Bell Oaks. The second parcel is owned and operated by Baptist Health Care Foundation ("BHCF"), which is also a nonprofit corporation exempt from income taxation pursuant to I.R.C. § 501(c)(3). The second parcel is being held for future charitable use in conjunction with Bell Oaks. Both BOSC and BHCF are now part of the Baptist Health System ("Baptist Health"). In 1998, BOSC and BHCF sued the State revenue commissioner and the Montgomery County revenue commissioner. The complaint alleged that the defendants were improperly assessing ad valorem taxes on the two parcels. This case was submitted to the trial court on the briefs, oral arguments, and one deposition. On May 4, 1999, the trial court entered an order in favor of BOSC and BHCF. The defendants appeal. The dispositive issue is whether these two parcels are being used exclusively for charitable purposes. If they are, then there is no question that BOSC and BHCF are exempt from ad valorem taxation under the clear wording of Amendment 373(k) and § 40-9-1(1). The defendants contend that neither the property occupied by Bell Oaks nor the second parcel is devoted exclusively to a charitable purpose. The defendants' position is basically that Bell Oaks does not qualify for the total tax exemptions set out in Amendment 373(k) and § 40-9-1(1) because Bell Oaks receives rental income beyond its operating cost and turns away the indigent and the sick elderly. The defendants argue that the vacant parcel does not qualify because, they say, it is not being used for a charitable purpose. In Mingledorff v. Vaughan Regional Medical Center, Inc., 682 So. 2d 415, 418 (Ala.1996), we wrote: This definition is consistent with the definition of `charity' set out in Black's Law Dictionary (6th ed.1990): It is not disputed that Bell Oaks was built for a charitable purpose. Jody Pigg, chief financial officer for Baptist Health, in the only deposition submitted in this case, testified that BHCF "wanted to develop a housing complex for the retiring community as a gesture of community support." The net earnings of Bell Oaks do not inure to the benefit of any director, officer, or private individual, but are devoted to other charitable purposes. The slight profit of Bell Oaks would not pay for any kind of major construction, repair, or capital improvement that Bell Oaks may need in the future. The record indicates that Bell Oaks was built with a sizable amount of capital debt. In 1996, approximately $2.8 million of debt was paid by charitable contributions from other Baptist entities. Bell Oaks could not set its rates as low as it does if it were required to service its own debt. Additionally, Bell Oaks has not had a rate increase in the past six years. Pigg stated the purpose for keeping the rates unchanged: In Vaughan Regional Medical Center, supra, this Court defined "charitable" in its broadest sense and noted a "trend toward defining a `charity' broadly." 682 So. 2d at 421. In regard to that trend, it quoted 71 Am.Jur.2d State and Local Taxation, § 373 (1972): (Emphasis added.) This broad definition of "charitable" is instructive. Johnson, Vaughan Regional Medical Center, and Black's Law Dictionary indicate that "assisting people to establish themselves in life" is a charitable purpose. This is the function Bell Oaks serves. It should be exempt. Vacant property of a nonprofit corporation being held with a good-faith intent that it be used for charity has a charitable purpose. Its purpose is future charitable use. It is significant, we think, that BHCF has satisfied the I.R.S. that its charitable status entitles it to be exempt from federal income taxation. I.R.C. § 501(c)(3) states in pertinent part that the income-tax exemption is available to "[c]orporations... organized and operated exclusively for ... charitable ... purposes." Contrary to the defendants' urgings, we can discern no logical basis for imposing a more stringent requirement on nonprofit organizations seeking the ad valorem tax exemption under Amendment 373(k) and § 40-9-1(1). The second parcel should not be taxed. For the foregoing reasons, the judgment is affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, COOK, LYONS, JOHNSTONE, and ENGLAND, JJ., concur.

March 10, 2000

9ee70c08-8f7e-4206-ac9b-8329fbdea98f

Sirote & Permutt, PC v. Bennett

776 So. 2d 40

1980900

Alabama

Alabama Supreme Court

776 So. 2d 40 (2000) SIROTE & PERMUTT, P.C., and M. Fredrick Simpler, Jr. v. William G. BENNETT et al. 1980900. Supreme Court of Alabama. March 31, 2000. Rehearing Denied August 4, 2000. *41 John M. Johnson, Stephen J. Rowe, and Lisa J. Wathey of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellants. Clarence L. McDorman, Jr., Birmingham; and J. Timothy Francis, Birmingham, for appellees. SEE, Justice. In this legal-malpractice case approximately 70 plaintiffs allege that attorney M. Fredrick Simpler, Jr., and the law firm of Sirote & Permutt, P.C., were negligent in issuing a legal opinion in connection with a financing transaction. Simpler and Sirote & Permutt moved the trial court for a summary judgment, arguing that the action was time-barred. The trial court denied that motion. We granted Simpler and Sirote & Permutt's petition for permission to appeal from the trial court's order denying their motion for a summary judgment. See Rule 5, Ala. R.App. P. The sole question on appeal is when the plaintiffs' causes of action accrued.[1] Because we conclude that the trial court erred in determining when the plaintiffs' causes of action accrued, we reverse the trial court's order denying the defendants' motion for a summary judgment and remand the case with instructions. In 1979, the Alabama Commission on Higher Education ("ACHE") approved a course of study to be offered by Central Alabama Community College ("CACC") at the Draper-Staton Corrections Facility Complex, near Millbrook. From 1979 forward, CACC offered this course of study to inmates as well as to "free-world" students outside the prison population. In 1991, to attract more "free-world" students, CACC sought to relocate some of the Draper-Staton course offerings to a new building to be constructed six miles away in Millbrook. CACC hired the firm of Blount, Parrish & Roton, Inc., as the underwriter for a "certificate-of-participation" issue to finance the construction of the new building. A "certificate-of-participation" issue is similar to a bond issue, but, rather than purchasing bonds, investors purchase "participation units" that entitle them to receive a pro rata share of rent payments. Simpler, an attorney with the firm of Sirote & Permutt, acted as counsel for the transaction. In November 1991, the Alabama Board of Education (the "Board") authorized Millbrook Leasing, Inc., to acquire property in Millbrook and to build the classroom facility proposed to be used by CACC. The Board also authorized CACC to lease the property and building and, on January 1, 1992, CACC entered into a lease agreement with Millbrook Leasing. The lease was for a one-year term, with CACC having an option to renew the lease on a year-by-year basis for 20 years and the right to terminate the lease and refuse to renew it at the end of any one-year lease period. In the lease agreement, CACC represented and warranted that it had "obtained or will obtain the consent or approval of all... governmental entities who are required by law to approve a transaction of the type contemplated by this lease agreement." The agreement further provided that if "such approval is rescinded, denied, or otherwise made unavailable, this lease agreement shall be null and void and of no effect." On January 29, 1992, the financing transaction was closed and the certificates of participation were issued. On that date, Blount, Parrish & Roton, the underwriter, purchased the certificates at 97% of their face value. Over the next few months, Blount, Parrish & Roton, as well as brokers at Compass Bank, N.A., and Paine Webber, Inc. (a securities dealer), sold the certificates to investors. All certificates were sold by March 20. The certificates *42 and related documents provided that Millbrook Leasing assigned its right to receive CACC's rent payments to First Alabama Bank as trustee for the benefit of the certificate holders, and that First Alabama Bank would pay each certificate holder his or her pro rata share of the rental revenue. First Alabama Bank later changed its name to Regions Bank. In connection with the closing, Sirote & Permutt issued an opinion letter regarding the validity and tax status of the financing transaction. The opinion letter, which is the basis of the plaintiffs' legal-malpractice claims, states that, in the firm's opinion, the lease agreement was "duly authorized" and was a "valid and binding agreement of [CACC] enforceable in accordance with its terms." The opinion was based, in part, on Simpler's conclusion that CACC did not need approval from ACHE to offer courses at the Millbrook campus, because CACC was simply relocating an already-approved course of study from the Draper-Staton facility to the Millbrook campus. Also in January 1992, officials at Alabama State University ("ASU"); Auburn University at Montgomery; and Troy State University at Montgomery informally advised ACHE officials that they had some concerns about, and objections to, the proposed new CACC campus in Millbrook. ASU's concerns related, in part, to the possible adverse impact of the new CACC campus on ASU's ability to comply with a 1991 order from a federal district court order directing ASU to "develop and implement a plan to recruit white students." See Knight v. Alabama, 787 F. Supp. 1030, 1380 (N.D.Ala.1991), aff'd in part, vacated in part, and rev'd in part, 14 F.3d 1534 (11th Cir.1994). Other concerns, shared by all three institutions, related to duplication of course offerings in the Montgomery area. Construction of the classroom facility began in May 1992 and was completed in February 1993. CACC renewed the lease through September 30, 1993. In August 1992, Dr. Fred Gainous, chancellor and chief executive officer of the Alabama Department of Post Secondary Education, requested ACHE approval of CACC's proposal to offer courses at the Millbrook campus. Dr. Gainous stated that the proposal was "nothing more than a relocation of existing programs, services and activities" that ACHE had approved in 1979. The request was resubmitted in October, after apparently having been withdrawn. ACHE staff opposed the proposal, taking the position that ACHE had never authorized CACC to offer courses to "free-world" students at the Draper-Staton facility and that, therefore, CACC proposed to do more than relocate already-approved programs. At its October 23, 1992, meeting, ACHE denied CACC's proposal. In March 1993, Millbrook Leasing and the president of CACC sued ACHE (that lawsuit will be called the "ACHE case"), seeking, among other things, a declaration that CACC did not need ACHE approval to offer courses at the Millbrook campus. Millbrook Leasing and CACC argued that CACC was simply relocating already-approved course offerings from the Draper-Staton facility to the Millbrook campus, and that, therefore, ACHE approval was not required. See Ala.Code 1975, § 16-5-8(c).[2] On December 30, 1993, the trial *43 court entered a final judgment in favor of ACHE, holding that, because "in 1979 ACHE approved a program of instruction for prison students, not free-world students," CACC's proposal was for a new program of instruction and was subject to ACHE approval. See id. Pursuant to the terms of the lease, CACC terminated the lease effective September 30, 1993. CACC had paid rent from September 1992 through February 1993. In October 1993, Regions Bank, as trustee, notified the certificate holders that CACC had stopped paying rent, that the building was not occupied, and that Regions Bank had withdrawn money from the debt-service reserve fund in order to make the scheduled October 1993 payment to certificate holders. Regions Bank also informed the certificate holders that "[t]he judge [was] expected to render a decision soon" in the ACHE case. In March 1994, Regions Bank notified the certificate holders that it had withdrawn more money from the debt-service reserve fund in order to make the scheduled April 1994 payment to certificate holders, that CACC was still not paying rent, that the building was still unoccupied, and that Regions Bank did not have enough money to make the payment scheduled for October 1994. At that time, Regions Bank also informed the certificate holders that the court had ruled in the ACHE case that CACC did not have the right to offer courses at the Millbrook campus. In August 1994, Regions Bank notified the certificate holders that the Millbrook campus remained unoccupied, that the building was no longer insured, and that Regions Bank had elected not to take possession of the building. Regions Bank made a partial payment to certificate holders in October 1994, but, because no additional funds were available, it made no further payments. By August 1995, some of the certificate holders had hired attorneys to consider suing the entities that eventually became the defendants in this action. On August 16, Sirote & Permutt; Blount, Parrish & Roton; Millbrook Leasing; First Alabama; and Edward W. Mudd, one of the certificate holders, in his individual capacity and as chairman of a committee of certificate holders, entered into an agreement, the purpose of which was to facilitate an out-of-court resolution of the certificate holders' claims. Among other things, the agreement provided that, in exchange for Mudd's covenant not to sue for a certain period of time, Sirote & Permutt agreed to a tolling of the statutory limitations period *44 for a period of time beginning on July 27, 1995.[3] On January 16, 1996, 53 certificate holders filed this action against Blount, Parrish & Roton; Simpler; Sirote & Permutt; Millbrook Leasing; Paine Webber; and Compass Bank. Regions Bank was later added as a party defendant. An additional 25 plaintiffs joined the action by amendment. The trial court dismissed Regions Bank and Millbrook Leasing. All other defendants, except Sirote & Permutt and Simpler, have settled with the plaintiffs. The plaintiffs claim, among other things, that Sirote & Permutt and Simpler committed legal malpractice in issuing the opinion letter stating that the lease between CACC and Millbrook Leasing was "duly authorized" and was a "valid and binding agreement of [CACC] enforceable in accordance with its terms." (The plaintiffs also asserted fraudulent-misrepresentation and fraudulent-suppression claims against Sirote & Permutt and Simpler. The trial court entered a summary judgment in favor of Sirote & Permutt and Simpler as to those claims. The plaintiffs have not sought appellate review, as part of this permissive appeal, of the summary judgment in favor of Sirote & Permutt and Simpler as to the fraud claims.) Sirote & Permutt and Simpler moved the trial court for a summary judgment, arguing that the plaintiffs' claims were time-barred. The trial court denied that motion as to the legal-malpractice claims. The trial court concluded that the plaintiffs' claims had accrued on December 30, 1993, when the court ruled in the ACHE case. All parties asked the trial court to allow Sirote & Permutt and Simpler to petition this Court for permission to appeal from the trial court's order denying their summary-judgment motion, for this Court to resolve "the limited issue of when the cause of action accrued."[4] Actions against legal service providers are governed by the Alabama Legal Services Liability Act ("ALSLA"), which provides the applicable statute of limitations: Ala.Code 1975, § 6-5-574(a). In Michael v. Beasley, 583 So. 2d 245 (Ala.1991), this Court held that "the time limits in the [ALSLA] are to be measured from the *45 date of the accrual of a cause of action and not from the date of the occurrence of the act or omission." 583 So. 2d at 252.[5] Sirote & Permutt and Simpler argue that the plaintiffs' causes of action accrued when the plaintiffs purchased the certificates of participation. They argue that if Sirote & Permutt's opinion letter incorrectly stated that CACC had obtained all necessary approvals and that the lease between CACC and Millbrook Leasing was valid, then the plaintiffs were damaged as soon as they bought the certificates because in that case the certificates would have been worth less than they would have been if the opinion had been correct. The plaintiffs argue, and the trial court held, that their causes of action accrued on December 30, 1993, the date of the judgment in the ACHE case. They argue that they suffered no legal damage before that date, because, they say, if the ACHE case had been decided in favor of CACC, then there would have been a judicial determination that Sirote & Permutt's legal opinion was correct and the certificate holders would not have suffered any damage. The plaintiffs' position rests on the assumption that the accuracy of Sirote & Permutt's legal opinion depended on the outcome of the ACHE case. Under this reasoning, the plaintiffs would have had no cause of action if there had been no ACHE case. Clearly, that is not true. We agree with Sirote & Permutt and Simpler that the plaintiffs' causes of action accrued on the date they purchased their certificates, because it was on that date that the plaintiffs first suffered legal damage for which they would have been entitled to bring an action for damages against Sirote & Permutt and Simpler. Our decision is based on the caselaw applying the Michael rule that the period of limitations begins to run as soon as the plaintiff sustains a legal injury. See 583 So. 2d at 251. In Michael, this Court quoted and relied on Cofield v. Smith, 495 So. 2d 61 (Ala. 1986), in which this Court held that the plaintiff's legal-malpractice action accrued on the date he pleaded guilty to a crime, allegedly on the advice of his attorney. See 583 So. 2d at 253 (quoting Cofield, 495 So.2d at 62-63). In Cofield, this Court stated that "[a]lthough the plaintiff's damages may have been compounded subsequently by virtue of the effect which the... conviction had on the punishment enhancement provisions of Alabama's Habitual Felony Offender Act, the [period of limitations] would, nonetheless, have begun to run on the date the conviction was entered." 495 So. 2d at 62-63. Similarly, in the present case, even though the plaintiffs' losses "may have been compounded subsequently by virtue of the effect" of the judgment in the ACHE case, the plaintiffs' causes of action accrued when each plaintiff first sustained appreciable legal damage. Michael, 583 So. 2d at 251; Cofield, 495 So. 2d at 63. In Ladner v. Inge, 603 So. 2d 1012 (Ala. 1992), this Court considered legal malpractice in connection with a real estate transaction. The plaintiff had transferred her interest in inherited property to her two brothers, in exchange for promissory notes. More than four years after the transactions, and after the brothers had defaulted on the notes, the plaintiff sued her attorney, alleging that he had committed malpractice by failing to advise her to obtain mortgages on the property to secure payment of the notes. 603 So. 2d at 1013. Applying the ALSLA as it was construed in Michael, this Court held that the action was time-barred, reasoning that the plaintiff "sustained the alleged injury or damage ... when she accepted the unsecured promissory notes and delivered the *46 warranty deeds," because "unsecured promissory notes ... are less valuable than promissory notes secured by mortgages," and "[i]n addition to having no security interest and having her claims vulnerable to the priority enjoyed by holders of other claims, [the plaintiff] could not sell or assign the unsecured promissory notes in the same manner as she could have sold or assigned a note secured by a mortgage; nor could she have transferred it for a comparable value." 603 So. 2d at 1015. Accord Malb's Assocs., Inc. v. Phillips, 589 So. 2d 164, 165 (Ala.1991) (holding that the clients' legal-malpractice cause of action accrued when their attorneys were alleged to have acted negligently in preparing legal documents related to the clients' proposal to franchise a restaurant business). The plaintiffs in this case are in a position similar to that of the plaintiff in Ladner if Sirote & Permutt's legal opinion was incorrect, and the lease between CACC and Millbrook Leasing was invalid, then the certificates were less valuable than certificates of participation in rents under a valid lease. Although, at the time of purchase, the plaintiffs may not have known that the certificates were less valuable, if the plaintiffs' allegations are true, they were. In Pearce v. Schrimsher, 583 So. 2d 253 (Ala.1991), and Mississippi Valley Title Insurance Co. v. Hooper, 707 So. 2d 209 (Ala.1997), this Court considered the question when legal-malpractice causes of action would have accrued in regard to legal malpractice in connection with allegedly faulty legal opinions. In Pearce, the plaintiffs alleged that "they had incurred damages by closing a real estate transaction in reliance on an erroneous title opinion that had been provided to them." 583 So. 2d at 253. This Court held that the plaintiffs' cause of action accrued when the transaction was closed, even though at the time the plaintiffs purchased the property they did not know the title opinion was incorrect. Id. at 254. Similarly, in Mississippi Valley Title Insurance Co., this Court held that a title-insurance company's cause of action against an attorney arising out of the attorney's alleged malpractice in preparing title opinions accrued when the attorney, acting as agent of the insurance company, issued title-insurance policies in reliance on the allegedly faulty title opinions. In so holding, this Court rejected the insurance company's argument that the cause of action accrued when it paid claims made under the policies. 707 So. 2d at 213. Like the plaintiffs in Pearce and Mississippi Valley Title Insurance Co., the plaintiffs in this case allege that they sustained damage because of a faulty legal opinion. Like the causes of action in those cases, these plaintiffs' causes of action accrued at the time of the transactions, that is, when they purchased their certificates. Because the trial court incorrectly determined that the plaintiffs' causes of action accrued on December 30, 1993, we reverse the order denying Sirote & Permutt and Simpler's summaryjudgment motion and remand the case for further proceedings consistent with this opinion. On remand, the trial court should consider the plaintiffs' other arguments, specifically, that Sirote & Permutt and Simpler waived the defense of the statute of limitations by failing to assert that affirmative defense as required under Rule 8(c), Ala. R. Civ. P., and that the statute of limitations is not a defense because the running of the limitations period under § 6-5-574 was tolled by § 6-2-3 or by agreement between the parties. REVERSED AND REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and MADDOX, HOUSTON, COOK, and ENGLAND, JJ., concur. LYONS, BROWN, and JOHNSTONE, JJ., concur in the result. [1] For purposes of this appeal, we do not address the merit of the plaintiffs' claims against Simpler and Sirote & Permutt. [2] Ala.Code 1975, § 16-5-8(c), provides: "The governing boards of public institutions of higher education in this state and the campuses under their governance or supervision shall not undertake the establishment of any new unit or program of instruction for academic credit with state funds before submitting plans for the new unit or program to the commission for its review, evaluation, and approval. No state funds shall be expended by any public institution on any new unit or program of instruction which has not been approved by the commission. Any plan submitted to the commission, or its staff, and not receiving final action by the commission within 10 months of submission shall be considered approved. The term `new unit of instruction,' includes the establishment of a college, school, division or institute, and includes the establishment of any new branch or campus. The term does not include reasonable extensions or alterations of existing curricula, or programs which have a direct relationship to existing programs. The commission may, under its rulemaking power, define the character of the reasonable extensions and alterations." Pursuant to its rulemaking power, ACHE promulgated the following definitions: "Reasonable Extension or Alteration of a Unit or Program of Instruction: Modification of an existing unit or program of instruction which does not change its essential character, integrity, or objectives. Such modifications do not create new units or programs of instruction. Program changes may include reasonable extensions such as the addition of a new area of specialization (concentration, option, emphasis, focus, track), or reasonable alterations such as a change in degree nomenclature at the same degree level (except doctoral), or a change in program title or CIP code, provided these modifications are within the Commission guidelines. Provisions for reasonable extensions or alterations of units or programs of instruction do not relate to the addition of off-campus sites or adding any new unit or program." Ala. Admin. Code § 300-2-1-.01(dd). "A reasonable extension or alteration of an existing unit or program of instruction is a modification which does not change the essential character, integrity, or objectives of the unit or program. Such modifications do not create new units or programs of instruction. Reasonable extensions and alterations of existing programs are defined as substantive or non-substantive. Substantive changes require Commission approval while non-substantive changes may be presented to the Commission by information item prior to implementation." Ala. Admin. Code § 300-2-1-.06(1). [3] The plaintiffs argue that, under this tolling agreement, their complaint was timely filed. However, that issue is not before us on this permissive appeal. [4] The plaintiffs urge us to consider all issues relevant to whether Sirote & Permutt and Simpler are entitled to a summary judgment on statute-of-limitations grounds. Specifically, they argue that, regardless of when their claims accrued, Sirote & Permutt and Simpler have waived the defense of the statute of limitations by failing to assert it as required under Rule 8(c), Ala. R. Civ. P., in their first responsive pleading, and that this Court should therefore affirm the trial court's order, even if the trial court's determination that the claims accrued on December 30, 1993, the date of the judgment in the ACHE case, is incorrect. We confine our inquiry to the single issue of law presented to us by the trial court's order and by Sirote & Permutt and Simpler's petition for permission to appeal. See Rule 5, Ala. R.App. P. Thus, we decide only the question when the plaintiffs' claims accrued. We do not decide whether Sirote & Permutt and Simpler waived the defense of the statute of limitations, an issue that the trial court apparently has not considered or ruled on. [5] Recently, three Justices, in a plurality opinion, indicated that they would reject the Michael rule. Ex parte Panell, 756 So. 2d 862 (Ala.1999). However, because the plurality's conclusion in Panell would have been a departure from precedent, the plurality stated, "[W]e would apply this new rule prospectively only, i.e., to legal-malpractice actions filed after the date of this decision," December 30, 1999. This present action was filed before the date of the Panell decision. The Michael rule applies.

March 31, 2000

05be9763-5b5d-45d8-8f3d-e1e8fa70e758

Peachtree Cas. Ins. Co., Inc. v. Sharpton

768 So. 2d 368

1972214

Alabama

Alabama Supreme Court

768 So. 2d 368 (2000) PEACHTREE CASUALTY INSURANCE COMPANY, INC. v. Jon SHARPTON and Melody Sharpton. 1972214. Supreme Court of Alabama. February 4, 2000. Rehearing Denied April 7, 2000. *369 Robert M. Girardeau of Huie, Fernambucq & Stewart, Birmingham, for plaintiff. D. Coleman Yarbrough, Montgomery, for defendants. ENGLAND, Justice. The United States District Court for the Middle District of Alabama has certified the following question to this Court, pursuant to Rule 18, Ala. R.App. P.: The facts are not in dispute. The defendants Jon Sharpton and Melody Sharpton were involved in an accident with an automobile that was being operated by Danny Parker, who was insured by State Farm Insurance Company. The Sharptons were riding and/or operating a motorcycle at the time of the collision. The Sharptons sustained injuries in the accident. Mrs. Sharpton suffered a traumatic amputation of her right leg as a result of the accident. The Sharptons settled with State Farm Insurance Company, Parker's insurer, for his policy limits.[1] *370 The Sharptons owned two automobiles, which they had insured with Peachtree Casualty Insurance Company ("Peachtree"). Each car was insured by a separate policy. The policies contain identical language and provide uninsured/underinsured-motorist coverage. Under the doctrine of "stacking," the policies may provide as much as $80,000 of uninsured/underinsured-motorist ("UIM") benefits to either one, or both, of the Sharptons. The policies contained the following provision: The policy also states that Peachtree does not cover bodily injury to a person "occupying a vehicle with less than four wheels." In May 1992, Peachtree filed its standard automobile-liability-insurance-coverage-policy form with the Alabama Department of Insurance. The Department approved the policy language, including the exclusion of UIM coverage for persons occupying a vehicle with fewer than four wheels. The Sharptons also owned the motorcycle involved in the accident, and for the motorcycle they had obtained insurance from a company other than Peachtree. UIM coverage was offered with the policy covering the motorcycle, but the Sharptons had effectively rejected that coverage. Peachtree sued the Sharptons for a judgment declaring that they were not entitled to insurance coverage for the motorcycle accident under the two policies of automobile insurance issued by Peachtree. Peachtree contends that the motorcycle is not a "vehicle" as the term "vehicle" is defined in those policies and is not a "listed vehicle" on those policies. The Sharptons argue that the provisions of the Uninsured Motorist Statute, § 32-7-23, Ala.Code 1975, require broader coverage than Peachtree's policies provide and that the exclusion contained in Peachtree's policies is therefore void. The Sharptons counterclaimed, seeking benefits under the policies and stating a bad-faith claim. The question here is whether the provision in the Sharptons' automobile insurance policies that excludes coverage for persons occupying vehicles with fewer than four wheels conflicts with the Uninsured Motorist Statute, § 32-7-23, Ala.Code 1975, and is, therefore, unenforceable. This Court has held that a policy exclusion that "is more restrictive than the uninsured motorist statute ... is void and unenforceable." Watts v. Preferred Risk Mutual Ins. Co., 423 So. 2d 171, 175 (Ala. 1982) (citing Alabama Farm Bureau Mut. Cas. Ins. Co. v. Mitchell, 373 So. 2d 1129 (Ala.Civ.App.1979)). Section 32-7-23 provides: "[U]ninsured motorist coverage inures to a person, not a vehicle, and the coverage is not dependent on the insured person being injured in connection with a vehicle which is covered by the liability insurer." St. Paul Ins. Co. v. Henson, 479 So. 2d 1253 (Ala.Civ.App.1985) (citing State Farm Mut. Auto. Ins. Co. v. Jackson, 462 So. 2d 346, 353 (Ala.1984)). This Court addressed the question whether a policy provision excluding uninsured-motorist coverage to an insured while the insured is driving a motor vehicle not described in the policy is void as violating the Uninsured Motorist Statute. See State Farm Auto Ins. Co. v. Reaves, 292 Ala. 218, 292 So. 2d 95 (1974). In Reaves, a brother and the mother of a person who was an insured under two automobile-liability-insurance policies issued by State Farm Insurance Company sought a declaratory judgment holding that that person had coverage under the UIM provision of the automobile policies, for injuries he suffered in an accident in which the uninsured motorcycle he was riding was struck by a truck driven by an uninsured motorist. State Farm denied UIM coverage, based on a provision in the policies that excluded coverage of bodily injury to an insured that occurred "while occupying or through being struck by a land motor vehicle owned by the named insured or any resident of the same household, if such vehicle [was] not [described in the declarations]." The motorcycle was owned by the injured insured's mother; the policies had been issued to the injured person's sister. The injured person, the mother, and the sister were all residents of the same household. This Court stated: Reaves, 292 Ala. at 224, 292 So. 2d at 100. "Reaves stands for the proposition that if a person is insured under the liability coverage provision of a motor vehicle insurance policy and uninsured motorist coverage is not rejected, the uninsured motorist coverage dictated by § 32-7-23 cannot be excluded from the policy as to such an insured person." State Farm Mut. Auto. Ins. Co. v. Jackson, 462 So. 2d at 350. Thus, the fact that the Sharptons were not injured while occupying the vehicles listed in the Peachtree policy does not bar a claim by them for UIM benefits under that policy. Peachtree argues that, by definition, the Sharptons' motorcycle is not a "vehicle" included within the terms of the Peachtree policy's UIM provision. Although the policy specifically excludes UIM coverage for bodily injury to a person occupying a vehicle with fewer than four wheels, it contains no provision that specifically defines the term "vehicle." However, we must consider how the Legislature has defined the term "motor vehicle." The Legislature defined "motor vehicle" as follows, in § 32-7-2(4), Ala.Code 1975: Section 32-7-2, defining "motor vehicle," appears in the same chapter of Title 32 as the Uninsured Motorist Statute. Webster's Third New International Dictionary (3d ed.1993) defines "motorcycle" as "a 2-wheeled tandem automotive vehicle having 1 or 2 riding saddles." That same dictionary defines "automotive" as "containing within the means of propulsion: self-propelling." We conclude that motorcycles would be included in the § 32-7-2(4) definition of "motor vehicle." Section 32-7-23 plainly states that "[n]o automobile liability or motor vehicle liability policy insuring against loss ... shall be delivered or issued for delivery in this State ... unless coverage is provided therein ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles." (Emphasis added.) One must conclude from this statute that by enacting this provision, the Legislature intended to insure "persons," not vehicles. Furthermore, as defined by 32-7-2(4), the term "motor vehicle" does not exclude motorcycles. Section 32-7-2(4) specifically excludes "traction engines, road rollers, farm tractors, tractor cranes, power shovels and well drillers." Had the Legislature intended to exclude motorcycles from the coverage under the UIM statute, it could have expressly done so, as other states have done by statute. See Mickelson v. Travelers Ins. Co., 491 N.W.2d 303 (Minn.App.1992)(holding that a two-wheeled vehicle with brake horsepower of five was a "motorcycle" within the statutory definition, so that the statutorily required uninsured-and-underinsured motorist coverages did not apply); Eurick v. Pemco Ins. Co., 45 Wash. App. 54, 723 P.2d 554 (1986) (holding that the motorcycle exception to the underinsured-motorist statute did not extend coverage as to a person killed in a motorcycle accident); Allstate Indem. Co. v. Gonzales, 902 P.2d 953 (Colo.App.1995)(holding that an automobile insurance policy's exclusion of motorcycles from its uninsured-motorist coverage did not violate public policy as set forth in the uninsured-motorist statute, which specifically mandates uninsured-motorist insurance only for four-wheeled motor vehicles). Because the Legislature has not excluded motorcycles from the coverage mandated under the UIM statute, Peachtree cannot avoid providing UIM benefits to its insureds simply by excluding from UIM coverage persons occupying vehicles with fewer than four wheels. The fact that the Sharptons rejected UIM coverage in the policy covering the motorcycle is immaterial. Because UIM coverage insures the person, not the vehicle, an insured has the right to reject UIM coverage in one policy, when he has paid UIM premiums on another policy, as the Sharptons did, and have the UIM coverage even when he is injured while riding in or on the vehicle as to which he rejected UIM coverage. Peachtree contends that the Sharptons' counterclaims are barred by the "filed-rate doctrine," in light of the fact that the Department of Insurance approved the policy language that included the exclusion. The filed-rate doctrine "is designed to insulate from challenge the filed rate deemed reasonable by [a] regulatory agency." Allen v. State Farm Fire & Cas. Co., 59 F. Supp. 2d 1217, 1227 (S.D.Ala.1999)(citing Wegoland Ltd v. NYNEX Corp., 27 F.3d 17 (2d Cir.1994)). The filed-rate doctrine recognizes that when the legislature has established a scheme for rate-making, the rights of the ratepayer in regard to the rate he pays are defined by that scheme. Taffet v. Southern Co., 967 F.2d 1483 (11th Cir.1992). *373 Peachtree cites Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953, 106 S. Ct. 2349, 90 L. Ed. 2d 943 (1986), to support its contention that the filed-rate doctrine prohibits the Sharptons' counterclaim. However, Peachtree's reliance on this case is misplaced. This case is not a rate case; the filed-rate doctrine is inapplicable. Moreover, the Department's approval of the policy language does not by itself suggest that Peachtree may issue a policy that violates the restrictions in § 32-7-23. The certified question must be answered in the affirmative. QUESTION ANSWERED. MADDOX, COOK, LYONS, BROWN, and JOHNSTONE, JJ., concur. HOOPER, C.J., and HOUSTON and SEE, JJ., dissent. HOUSTON, Justice (dissenting). The liability part (Part I) of the Sharptons' policies with Peachtree Casualty Insurance Company, Inc., contained the following exclusion: The uninsured-motorist part (Part III) of the Sharptons' policies with Peachtree contained the following exclusion: The Alabama commissioner of insurance approved Peachtree's policies including these exclusions. Section 32-7-23(a), Ala. Code 1975, provides that insurance policies insuring against loss resulting from liability imposed by law for bodily injury shall also include protection of persons insured under such policies for bodily injuries caused by uninsured motorists, under provisions approved by the commissioner. Section 32-7-23(a) did not restrict the parties' right to contract. The commissioner approved these exclusions. The Sharptons purchased policies containing these exclusions. Therefore, I do not believe that § 32-7-23(a) permits me to rewrite the insurance contracts, under the facts before us. This Court has stated that "where an exclusion in a policy is more restrictive than the uninsured motorist statute, it is void and unenforceable." Watts v. Preferred Risk Mut. Ins. Co., 423 So. 2d 171, 175 (Ala.1982); accord Higgins v. Nationwide Mut. Ins. Co., 291 Ala. 462, 466, 282 So. 2d 301, 305 (1973). However, both Watts and Higgins were decided before the Legislature adopted Act No. 84-301, Ala. Acts 1984, which amended § 32-7-23. Section 6 of that Act provides: (Emphasis added.) Act No. 84-301 amended, among other statutes, § 32-7-23, which was originally enacted as Act No. 866, Ala. Acts 1965 (Reg.Session). That Act contained no language analogous to the language of § 6 of Act No. 84-301. Peachtree argues that the motorcycle exclusion is valid because it was approved by the insurance commissioner. The language of § 32-7-23 provides that uninsured-motorist coverage must be provided "under provisions approved by the Commissioner of Insurance." That language authorizes the commissioner of insurance to approve conditions to, and exclusions from, uninsured-motorist coverage, provided that such conditions and exclusions are consistent with the statute. See Insurance Co. of North America v. Thomas, 337 So. 2d 365, 369 (Ala.Civ.App.1976). Section 6 of Act No. 84-301 explicitly provides that that Act should not be "construed to abrogate *374 the exclusions ... of any policy of automobile liability insurance which has been approved by the Insurance Commissioner." That section indicates the Legislature's intent that provisions approved by the insurance commissioner are enforceable. I dissent. HOOPER, C.J., and SEE, J., concur. [1] As statutorily defined, the term "uninsured motorist" includes "underinsured motorist." Lowe v. Nationwide Ins. Co., 521 So. 2d 1309, 1309 n. 1 (Ala.1988) (citing § 32-7-23(b), Ala. Code 1975).

February 4, 2000

bd11e55e-f748-45ca-9884-7d7104b38ead

Ex Parte General Motors Corp.

800 So. 2d 159

1981717

Alabama

Alabama Supreme Court

800 So. 2d 159 (2000) Ex parte GENERAL MOTORS CORPORATION. (In re Jerry W. Hilley, test-case claimant, and all similarly situated claimants v. General Motors Corporation). 1981717. Supreme Court of Alabama. February 25, 2000. Rehearing Denied May 5, 2000. *160 Charles A. Powell III, William D. Jones III, Spencer A. Kinderman, and William C. Barker of Johnston, Barton, Proctor & Powell, L.L.P., Birmingham, for petitioner. John L. Quinn, George N. Davies, and Leslie J. Horton of Nakamura, Quinn & Walls, L.L.P., Birmingham, for respondents. HOUSTON, Justice. Jerry Hilley, along with over 1,000 other employees of the Delphi-Harrison and Delphi-Saginaw plants, filed for unemployment-compensation benefits from their employer, General Motors Corporation ("GM"). The case was taken through the correct administrative procedures. GM and the claimants agreed to expedite the case through a test-case procedure, which would bind all claimants by the outcome of the case of a single claimant, Jerry Hilley. The claimants took their claim to the State Board of Appeals, which ruled in favor of Hilley. GM appealed to the Jefferson Circuit Court, which transferred the case to the Tuscaloosa Circuit Court. That court reversed the ruling of the State Board of Appeals. Hilley appealed to the Court of Civil Appeals, which reversed the ruling of the Tuscaloosa Circuit Court. Hilley v. *161 General Motors Corp., 800 So. 2d 150 (Ala. 1999). We granted GM's petition for certiorari review. We reverse and remand. The claimants in this case worked at one or the other of two GM plants located in Alabama, Delphi-Harrison and Delphi-Saginaw. Both of these plants produced parts to be used in the automobile assembly line at another GM plant in Dayton, Ohio. This case began when the claimants were laid off by GM because of a strike at the Dayton plant and a resulting lack of demand for parts produced at the two Alabama plants. The claimants filed with GM for unemployment compensation, but GM denied their claims, on the basis that the claimants were part of the same union as the strikers in Dayton (the United Auto Workers Union) and, therefore, that their unemployment was "due to a labor dispute still in active progress in the establishment in which [they are] or [were] last employed." Ala.Code 1975, § 25-4-78(1). This section of the Code would relieve GM of its obligation to pay unemployment benefits. After the initial denial, the Alabama Department of Industrial Relations, GM, and the claimants agreed to use a test-case procedure. Under this procedure, the claimants choose a representative and all other claimants are bound by the outcome of the representative's case. The claimants chose Jerry Hilley as the representative. The claimants took their claim to the State Board of Appeals, arguing that § 25-4-78(1) was inapplicable. The State Board of Appeals ruled in favor of Hilley, granting him unemployment benefits. GM then appealed to the Jefferson Circuit Court. There Hilley moved to dismiss the appeal, arguing that § 25-4-95 required that the appeal be brought in the county of the claimant's residence, and pointing out that Hilley was a resident of Tuscaloosa County. Therefore, Hilley argued the appeal should be dismissed on the basis that GM had not complied with what he argued was a jurisdictional provision in the statute allowing the appeal. GM filed a brief in opposition to the motion to dismiss; in the alternative, it moved to transfer the appeal to the Tuscaloosa Circuit Court. The Jefferson Circuit Court transferred the case to the Tuscaloosa Circuit Court, where Hilley again moved to dismiss, again arguing that § 25-4-95 conferred jurisdiction on only one courtthe court of the county in which the claimant residesand arguing that if the jurisdictional requirement is not complied with when the appeal is initially filed, then the appeal must be dismissed. The Tuscaloosa Circuit Court denied the motion to dismiss and exercised jurisdiction over the appeal. After hearing arguments, the court reversed the ruling of the State Board of Appeals, and entered a judgment denying unemployment-compensation benefits to the claimants. Hilley appealed the circuit court's judgment to the Court of Civil Appeals. That court, citing a line of its own cases, agreed with Hilley that because the appeal from the ruling of the State Board of Appeals had been filed in the Jefferson Circuit Court, a jurisdictional requirement had not been met, and the appeal should have been dismissed. See Hilley, 800 So. 2d 151. Judge Crawley dissented, stating again the reasons he had offered in the Court of Civil Appeals' line of earlier cases. He reasoned that § 25-4-95 did not confer jurisdiction upon a single circuit court, but, instead, only indicated the proper venue for an action such as Hilley's. Hilley, 800 So. 2d at 158 (quoting Tyson Foods, Inc. v. Thompson, 719 So. 2d 847 (Ala.Civ. App.1998)). The sole issue on this certiorari review is whether the Court of Civil Appeals erred in reversing the Tuscaloosa *162 Circuit Court's exercise of jurisdiction over the appeal from the State Board of Appeals. We recognize that the parties have also argued the underlying substantive issue whether GM owes the claimants unemployment compensation. However, because this substantive issue was addressed by only one judge of the Court of Civil Appeals, and not the majority, the writing on that issue did not constitute a holding of that court. Thus, that substantive issue is not before this Court. The question here is whether § 25-4-95 confers on a single circuit court jurisdiction of GM's appeal from the ruling of the State Board of Appeals, or merely indicates the proper venue for that appeal. The Court of Civil Appeals based its decision on a line of cases beginning with Director of State Dep't of Indus. Relations v. Nolin, 374 So. 2d 903 (Ala.Civ.App.1979). All the cases in that line held that the requirement that an appeal from the State Board of Appeals be filed in the county of the claimant's residence is a jurisdictional one and that a filing in that county is a prerequisite to judicial review. See Cruce v. Demarco Concrete & Block Co. and State of Alabama Dep't of Indus. Relations, 380 So. 2d 900 (Ala.Civ.App.1980); Security Engineers Inc. v. Anderson, 421 So. 2d 1298 (Ala.Civ.App.1982); Tyson Foods, 719 So. 2d at 848. In Nolin, the Court of Civil Appeals stated: 374 So. 2d at 905. In the 20 years since it decided Nolin, the Court of Civil Appeals has consistently held that compliance with the procedural requirement of § 25-4-95 is a "jurisdictional prerequisite to judicial review." Tyson Foods, 719 So. 2d at 848. Courts recognize a distinction between jurisdiction and venue. Redwing Carriers, Inc. v. Foster, 382 So. 2d 554 (Ala.1980), overruled on other grounds, Professional Ins. Corp. v. Sutherland, 700 So. 2d 347 (Ala.1997). In Redwing Carriers, this Court held that the term "jurisdiction" refers to a court's inherent power to decide a case, while the term "venue" relates to the placethe geographical situs where a court with jurisdiction may hear a case. 382 So. 2d at 554-55. As Judge Crawley pointed out in dissent, both in Tyson Foods and in the present case, the Court of Civil Appeals explained its holding in Nolin by discussing convenience or policy considerations for having an appeal heard by the circuit court in the county of the claimant's residence. Hilley, 800 So. 2d at 159 (quoting his dissent in Tyson Foods, 719 So.2d at 850-51). Judge Crawley then states that the court in Nolin "[without explanation] ... concluded that the circuit court of a county where the claimant did not reside lacked jurisdiction, instead of merely being the wrong venue!" Judge Crawley continued to quote his dissent in Tyson Foods: Hilley, 800 So. 2d at 159 (quoting Tyson Foods, 719 So. 2d at 851 (Crawley, J., dissenting)). We agree with Judge Crawley that § 25-4-95, in referring to a claimant's county of residence, does not confer jurisdiction, but, instead, directs the proper venue for an appeal under that statute. Section 25-4-95 reads in pertinent part: The language of the statute does not indicate that this provision relates to jurisdiction; instead, it suggests that this provision merely designates the proper venue, or place, for filing the appeal. Furthermore, the policy reasons that support the rule that an appeal from the ruling of the State Board of Appeals is to be filed in the county of the claimant's residence are reasons relating to the convenience of the claimant. In other words, they are considerations relating to the matter of venue, not the matter of jurisdiction. Therefore, when an appeal pursuant to § 25-4-95 is filed in the wrong circuit court, that circuit court should transfer the appeal to the circuit court designated by the statute.[1] The judgment of the Court of Civil Appeals is reversed and the case is remanded. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, SEE, and BROWN, JJ., concur. LYONS, J., concurs specially. JOHNSTONE and ENGLAND, JJ., dissent. LYONS, Justice (concurring specially). The main opinion quotes with approval from Judge Crawley's dissenting opinion. Hilley v. General Motors Corp., 800 So. 2d 150, 158 (Ala.Civ.App.1999). Judge Crawley's dissent cites Rule 81(a), Ala. R. Civ. P., for the proposition that "`once an appeal is in the circuit court, the Alabama Rules of Civil Procedure apply.'" 800 So. 2d at 159 (quoting Tyson Foods, Inc. v. *164 Thompson, 719 So. 2d 847, 851 (Ala.Civ. App.1998) (Crawley, J., dissenting)). From there, Judge Crawley refers to Rule 82(d)(1), which provides for the transfer of an action that has been commenced in the wrong county. Although I agree with the conclusion that "§ 25-4-95, in referring to a claimant's county of residence, does not confer jurisdiction, but, instead, directs the proper venue for an appeal under that statute," 800 So. 2d at 163, I write specially to discuss the circumstances that must be present in order for the Rules of Civil Procedure to apply. The Rules of Civil Procedure cannot be applied if applying them would offend restrictions imposed by our Constitution. The Alabama Constitution of 1901 prohibits the use of procedural or administrative rules either to "abridge, enlarge or modify the substantive right of any party" or to "affect the jurisdiction of circuit and district courts or venue of actions therein." Ala. Const. of 1901, Amend. No. 328, § 6.11. At the same time, Rule 81(a) reads: (Emphasis added.) Therefore, when a statute regulating a proceeding is silent on a particular issue, the Alabama Rules of Civil Procedure will apply, so long as the application of those Rules does not violate § 6.11 of the Constitution. Before reaching that constitutional question, we should determine whether § 25-4-95, Ala.Code 1975, is silent on the issue of a transfer based on improper venue. Section 25-4-95 provides that one may secure judicial review of a decision of the Board of Appeals of the Department of Industrial Relations "by filing a notice of appeal in the circuit court of the county of the residence of the claimant." Thus, we must ask whether the Legislature, in formulating the remedy of judicial review in § 25 4-95, specifically excluded the prospect of a transfer upon a filing in the wrong county. Finding no such exclusion expressed in § 25-4-95, I conclude that that statute is silent on this issue. Next, we should ask whether this Court can rely on that silence and apply Rule 82(d)(1), allowing a change of venue, without violating Amend. No. 328, § 6.11. By selecting the circuit court as the place for filing the notice of appeal, the Legislature brought the Constitution into play by specifying a unit of the constitutionally mandated "unified judicial system." Ala. Const. of 1901, Amend. No. 328, § 6.01. The circuit courts of this State have "general jurisdiction in all cases except as may otherwise be provided by law." Ala. Const. of 1901, Amend. No. 328, § 6.04 (emphasis added). Therefore, the silence of § 25-4-95 in regard to the exclusivity of the county in which a notice of appeal may be filed, should be treated as the Legislature's failure to "otherwise provide by law." In other words, when the Legislature conferred the power to conduct judicial review of rulings of the Board of Appeals of the Department of Industrial Relations, on the circuit court (a court of general jurisdiction) of the county of the residence of the claimant, it did so in a setting where the Constitution authorized it to limit the jurisdiction of that court in such proceedings if it chose to do so. As previously noted, it plainly did not. This *165 inaction on the part of the Legislature is authorized by § 6.04, and to interpret Rule 81(a)(32) so as to allow the application of Rule 82(d)(1) therefore cannot be viewed as applying the Rules of Civil Procedure in such a way as to "affect the jurisdiction" of a circuit court, contrary to § 6.11. Other jurisdictions that have addressed statutes prescribing a particular place for the review of rulings of unemployment-compensation boards have not reached consistent results. Some jurisdictions addressing these statutes have treated them as prescribing proper venue for the review, rather than as establishing a particular court's exclusive subject-matter jurisdiction. See, e.g., Robinson v. Oklahoma Employment Sec. Comm'n, 932 P.2d 1120 (Okla.1997); Smith v. Hayes Albion, 214 Mich.App. 82, 542 N.W.2d 298 (1995). Cases from other jurisdictions have treated such statutes as granting a particular court exclusive subject-matter jurisdiction over the review, but those cases have not arisen in circumstances such as we have here. See, e.g., Basin Elec. Power Coop. v. North Dakota Workers Compensation Bureau, 541 N.W.2d 685 (N.D.1996); Collins & Assocs. Dietary Consultants, Inc., 724 S.W.2d 243 (Mo.1987); Caruso v. Nevada Employment Sec. Dep't, 103 Nev. 75, 734 P.2d 224 (1987); and Northern Messenger, Inc. v. Sorensen, 218 Neb. 846, 359 N.W.2d 787 (1984). The combined effects of Ala. Const. of 1901, Amend. No. 328, §§ 6.01, 6.04, and 6.11, and Rules 81(a)(32) and 82(d)(1), Ala. R. Civ. P., require a different result for our circuit courts. I therefore concur. JOHNSTONE, Justice (dissenting). I respectfully dissent because the Legislature has reenacted § 25-4-95, Ala.Code 1975, without material change,[2] 1995 Ala. Act No. 95-311, p. 582, § 2, p. 608, since Director of State Dep't of Indus. Relations v. Nolin, 374 So. 2d 903 (Ala.Civ.App.1979), Cruce v. Demarco Concrete & Block Co. and State of Alabama Dep't of Indus. Relations, 380 So. 2d 900 (Ala.Civ.App.1980), and Security Engineers, Inc. v. Anderson, 421 So. 2d 1298 (Ala.Civ.App.1982), were decided and has thereby manifested legislative intent in accord with the holdings of those cases that the requirements of § 25-4-95 are jurisdictional. See Hamm v. Harrigan, 278 Ala. 372, 383, 178 So. 2d 529, 540 (1965) ("[W]here a statute has been construed, and is reenacted without material change, such construction must be accepted as part of the statute."). I recognize that in 1927 this Court said, "Nor does the doctrine that when a statute had been readopted without change, and which had previously received a well-known interpretation by this court, apply to the decisions of an inferior or intermediate court." Rea v. Keller, 215 Ala. 672, 673, 112 So. 211, 212 (1927). However, in 1928 the Court of Appeals stated People's Auto Co. v. State, 23 Ala.App. 7, 8, 121 So. 907, 908 (1928), cert. denied, 219 Ala. 280, 121 So. 908 (1929). And in 1988 Justice Shores, speaking for this Court, adopted the dissent of Judge Bowen in a case from his court on certiorari review by the Supreme Court: Ex parte Grantham, 540 So. 2d 779, 781 (Ala.1988) (quoting the dissent of Judge Bowen in Grantham v. State, 540 So. 2d 775, 779 (Ala.Crim.App.1987)). The Court of Civil Appeals has "exclusive appellate jurisdiction of ... all appeals from administrative agencies other than the Alabama Public Service Commission...." § 12-3-10, Ala.Code 1975. Thus appeals from final judgments in unemployment compensation cases are within the "exclusive appellate jurisdiction" of the Court of Civil Appeals. §§ 12-3-10 and 41-22-21. See also Ex parte Varner, 571 So. 2d 1108 (Ala.1990). Therefore, the Court of Civil Appeals decisions in Nolin, Cruce, and Security Engineers, Inc., supra, had the force and effect of judicial construction when the Legislature reenacted § 25-4-95, without material change, in 1995. Accordingly, the Court of Civil *167 Appeals' pre-1995 construction of § 25-4-95 must be accepted as part of the statute. Because the requirements of § 25-4-95, as judicially construed and legislatively reenacted, are jurisdictional, the Court of Civil Appeals was right in holding that the Circuit Court of Jefferson County, the only circuit court where an appeal was timely filed, lacked jurisdiction. We should affirm. ENGLAND, J., concurs. [1] Our research indicates that four other jurisdictions have dealt with this issue. Both the Supreme Court of North Dakota and the Supreme Court of Missouri have held that statutes similar to our § 25-4-95 confer jurisdiction. See Basin Elec. Power Coop. v. North Dakota Workers Compensation Bureau, 541 N.W.2d 685 (N.D.1996); and Collins & Assocs. Dietary Consultants, Inc. v. Labor & Industrial Relations Bureau, 724 S.W.2d 243 (Mo.1987). However, the Supreme Court of Oklahoma and the Court of Appeals of Michigan have held that statutes similar to our § 25-4-95 do not confer jurisdiction, but merely state the correct venue for the appeal. See Robinson v. Oklahoma Employment Security Comm'n, 932 P.2d 1120 (Okla.1997); and Smith v. Hayes Albion, 214 Mich.App. 82, 542 N.W.2d 298 (1995). Furthermore, both of these courts allowed the transfer of an appeal that was initially filed in the wrong court. See Robinson, 932 P.2d at 1123; Smith, 214 Mich.App. at 90, 542 N.W.2d at 301. [2] Act No. 95-311 allowed the appellant 30 days instead of 10 days for the filing of an appeal but maintained the same restrictions on the location where the appeal must be filed.

February 25, 2000

8fa4df93-91ab-498f-a674-a35d988ea895

Ex Parte Ryals

773 So. 2d 1011

1971679

Alabama

Alabama Supreme Court

773 So. 2d 1011 (2000) Ex parte David RYALS. (Re David Ryals v. City of Montgomery and Gatewood Walden). 1971679. Supreme Court of Alabama. March 3, 2000. *1012 J. Doyle Fuller and Susan G. Copeland, Montgomery, for petitioner. Gatewood Walden, respondent, pro se. JOHNSTONE, Justice. We granted a writ of certiorari to review the judgment of the Court of Civil Appeals affirming a summary judgment entered in favor of the respondent on his claim for attorney fees to be deducted incrementally from future installments of Trinity Act benefits the respondent won for the petitioner when the respondent represented the Petitioner, a City of Montgomery employee, in a suit against the City of Montgomery *1013 for on-the-job injuries. The Trinity Act provides for benefits in addition to those due under the workers' compensation statute. This opinion will not discuss the workers' compensation claim or issues or any other ancillary claims or issues before the trial court or the Court of Civil Appeals, for such claims and issues are immaterial to the precise issue before us the validity of the summary judgment ordering incremental payment of attorneys fees from future Trinity Act benefit installments. The petitioner argues that the doctrine of res judicata barred the entry of this summary judgment. The record before us, however, does not show that the petitioner fulfilled the requirements of Rule 56, Ala. R. Civ. P., for raising, supporting, and arguing the bar of res judicata in opposition to the respondent's motion for summary judgment in the trial court. Accordingly, the summary judgment will be affirmed. A trial court decides a motion for summary judgment upon a consideration of whatever materials are submitted in support of or in opposition to the motion. Ex parte City of Montgomery, 758 So. 2d 565 (Ala.1999), and Moore v. Glover, 501 So. 2d 1187 (Ala.1986). The trial court cannot consider any facts not of judicial notice except those facts evidenced by materials contained in the trial court record upon submission of the motion for summary judgment. See Moore, supra. Likewise, the trial court cannot be reversed on any ground or argument not presented for or against the motion. MetFuel, Inc. v. Louisiana Well Service Co., 628 So. 2d 601 (Ala.1993), and Bevill v. Owen, 364 So. 2d 1201 (Ala.1979). An appellate court can consider a fact to support or to undermine a summary judgment only to the extent that the record on appeal contains materials from the record before the trial court evidencing that fact at the time of submission of the motion for summary judgment. Dynasty Corp. v. Alpha Resins Corp., 577 So. 2d 1278 (Ala.1991). Likewise, the appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment. Andrews v. Merritt Oil Co., 612 So. 2d 409 (Ala.1992). On the other hand, an appellate court can affirm a summary judgment on any valid argument, regardless of whether the argument was presented to, considered by, or even rejected by the trial court. Ex parte Wiginton, 743 So. 2d 1071 (Ala.1999), and Smith v. Equifax Services, Inc., 537 So. 2d 463 (Ala.1988). The summary judgment we are now reviewing grants the respondent, toward his attorney fees, a percentage of each future installment of the petitioner's Trinity Act benefits, won for the petitioner by the respondent when the respondent represented the petitioner. The petitioner-client argues to us only that the doctrine of res judicata barred the trial court from entering this summary judgment. Specifically, the petitioner-client argues that, long before the trial court entered this summary judgment, the trial court already had entered an order denying the respondent payment of his attorney fees in a lump sum from the commuted then-present value of the future installments of the petitioner-client's Trinity Act benefits, that the respondent-attorney had appealed this denial (in an appeal preceding the one which occasioned the instant certiorari review), that the Court of Civil Appeals affirmed that denial, and that the denial so affirmed constituted a res judicata bar to the petitioner-attorney's subsequent motion to obtain payment of his attorney fees in increments of the future installments of the Trinity Act benefits. Noteworthily, the relief earlier denied by the trial court was lump sum payment; and the relief later sought and granted (and now being reviewed) is incremental payment. *1014 After the respondent-attorney filed his motion for summary judgment for this latest relief, incremental payment, the petitioner-client filed no opposition or response whatsoever to the motion for summary judgment. Moreover, although the petitioner-client's new lawyer appeared at the hearing on the motion for summary judgment, he did not orally argue res judicata or even utter those words. Among the materials the record before us shows to have been in the trial court file when the motion for summary judgment was submitted for decision are, in the order of filing, three motions filed by the respondent-attorney seeking his attorney fees for his Trinity Act services, a response filed by the petitioner-client responding "to all of the motions," and an amendment to the response, all filed before the respondent-attorney filed his motion for summary judgment. Literally the only reference to res judicata our record shows to have been in the trial court record when the motion for summary judgment was submitted for decision is a single sentence in the amendment to the response, filed before the motion for summary judgment was filed, as follows: "5. Claims of Mr. Walden [the respondent-attorney] are barred by the doctrine of res judicata." One of the essential elements of a res judicata bar is a pre-existing final judgment. Dairyland Ins. Co. v. Jackson, 566 So. 2d 723 (Ala.1990). For this element, the petitioner-client now argues the trial judge's July 1, 1996 order denying the lump sum payment. This order, however, includes no language constituting it a final judgment. Likewise, the record before us contains no motion or order to include language of finality and appealability in the July 1, 1996 order under Rule 54(b), Ala. R. Civ. P. Further the record before us contains neither any notice of appeal nor any designation of the record on appeal nor any opinion, decision, order, or judgment from any appellate court or any citation to such decision, relating to any appeal of this July 1, 1996 order. Thus, the record before us fails to show that the record before the trial judge put him on notice of any pre-existing final judgment when he considered the respondent-attorney's motion for summary judgment for incremental payment of his attorney fees. Indeed, for aught that appears, the July 1, 1996 denial of lump sum payment was entirely interlocutory. Another essential element of a res judicata bar is identity of issuesthat is, sameness of the issues determined by a pre-existing final judgment and the issues determinative of the relief to be barred. Dairyland Ins. Co., supra. The record before us, however, does not contain any motion filed by the respondent-attorney seeking the particular relieflump-sum paymentdenied by the trial judge in his July 1, 1996 order. Thus the record before us does not show what issues such a motion, if one was filed, presented to the trial judge. Moreover, as already discussed, the record before us contains no materials relating to the appeal of the July 1, 1996 denial and thus contains no showing that any such materials put the trial judge on notice of any issues determined by the appeal. Therefore the record before us fails to show that the trial judge was on notice of any identity of issues (if identity of issues existed at all) that would contribute to a res judicata bar when he considered the respondent-attorney's motion for summary judgment for incremental payment of his fees. "If the [nonmoving] party does not so respond, summary judgment, if appropriate, shall be entered against him." Rule 56(e), Ala. R. Civ. P. This Court has held: *1015 Ex parte City of Montgomery, 758 So. 2d at 568. As demonstrated, the record before us does not show that the trial judge was on notice of any pre-existing judgment or of any identity of issues that would contribute to a res judicata bar when he entered the summary judgment now under review. Therefore, we affirm the decision of the Court of Civil Appeals affirming the summary judgment. AFFIRMED. HOOPER, C.J., and HOUSTON, COOK, LYONS, BROWN, and ENGLAND, JJ., concur. MADDOX and SEE, JJ., concur in the result.

March 3, 2000

8202bc66-c032-4166-babd-452e055bad73

Ex Parte Hamlett

815 So. 2d 499

1981689

Alabama

Alabama Supreme Court

815 So. 2d 499 (2000) Ex parte Archie Earl HAMLETT. (Re Archie Earl Hamlett v. State). 1981689. Supreme Court of Alabama. May 26, 2000. Rehearing Denied December 15, 2000. Archie Earl Hamlett, pro se. Bill Pryor, atty. gen., and Stephen N. Dodd, asst. atty. gen., for respondent. COOK, Justice. On October 17, 1996, Archie Earl Hamlett was convicted of trafficking in cannabis. On June 24, 1998, Hamlett filed a petition pursuant to Rule 32, Ala. R.Crim. P., which the trial court denied on June 29, 1998, without a hearing. Hamlett subsequently filed an amended petition and a motion to vacate the June 29, 1998, judgment. On July 8, 1998, the circuit court granted the motion to vacate the judgment, treating it as a motion to amend the petition, but denied the appellant's amended petition. The Court of Criminal Appeals, on April 30, 1999, affirmed, by an unpublished memorandum. Hamlett v. State, (No. CR-97-2275) 768 So. 2d 1021 (Ala.Crim.App.1999) (table). We granted Hamlett's petition for certiorari review. Hamlett argues that his conviction is due to be set aside because, he says, the venire from which his jury was selected was not properly sworn and his trial counsel was ineffective because he failed to properly preserve that error for review. Hamlett contends that even though the petit jury was properly sworn, he is entitled to have his conviction set aside because the venire was not properly sworn before the voir dire examination began. Hamlett relies on Holland v. State, 668 So. 2d 107 (Ala.Crim.App.1995), to support his contention that failure to properly swear the jury venire is reversible error. In Holland, the defendant argued that his conviction should be reversed because "the record [did] not contain the oath administered to the prospective jurors before their voir dire examination." Id. at 107-08. The court stated that while there is no statutory requirement that veniremembers *500 be sworn, "`[a]n oath should be administered to prospective jurors prior to voir dire examination so that any answers given by these jurors will be under such oath.'" Id. at 108, quoting Tarver v. State, 500 So. 2d 1232, 1241 (Ala.Crim.App. 1986) (citing State v. Tharp, 42 Wash. 2d 494, 256 P.2d 482 (1953), and Duffy v. State, 567 S.W.2d 197 (Tex.Crim.App.), cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 666 (1978)). The court noted that there was no reason why the principles governing the administration of an oath to the petit jurors should not also govern the administration of an oath to the venire. Id. Therefore, the court remanded Holland's case for an inquiry into whether the venire had been properly sworn. Rule 12.1(c), Ala. R.Crim. P., also supports Hamlett's argument. Rule 12.1(c) provides: The Court of Criminal Appeals stated in its unpublished memorandum: It is uncertain from this statement from the unpublished memorandum whether the venire was sworn before the jury was selected. The statement appears to refer to the trial judge's administering the oath to the petit jury, not to his administering an oath to the venire. The finding of the Court of Criminal Appeals that the members of the jury venire were "asked the qualifying questions" is insufficient to show that the venire was given the oath as required by Rule 12.1(c), Ala. R.Crim. P. We are aware that some circuit judges administer the oath to the entire venire, in a location outside the courtroom, before selected members of the venire enter the courtroom for the jury-selection process. The trial judge may have done that in Hamlett's case; if he did, then the trial transcript would not reflect that the venire had been sworn. Both Hamlett and the State acknowledge that the record is silent as to whether the venire was given the oath required by Rule 12.1(c). Therefore, we do not reach Hamlett's claim of ineffective assistance of counsel. We remand this case for the Court of *501 Criminal Appeals to remand for the trial court to make such findings as are necessary to determine whether the venire was properly sworn. The trial court should make a timely return to the Court of Criminal Appeals. REMANDED. HOOPER, C.J., and HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. COOK, Justice. APPLICATION OVERRULED. HOOPER, C.J., and SEE, JOHNSTONE, and ENGLAND, JJ., concur. HOUSTON, LYONS, and BROWN, JJ., dissent. HOUSTON, Justice (dissenting). "To err is human," and I erred in voting to remand this case. I would grant the application for rehearing. In Ex parte Deramus, 721 So. 2d 242, 244 (Ala.1998), this Court held that it can be presumed from a silent record that a petit jury was unsworn. This Court had previously held in Washington v. State, 81 Ala. 35, 1 So. 18 (1887), that where the record is silent as to the swearing of the jury venire, it is presumed that the venire was sworn. If we are to extend the Deramus holding to the jury venire, we should overrule Washington. I refuse to do so, because the failure to swear the jury venire is the kind of judicial error the defendant must object to in the trial court to preserve it for appellate review. 81 Ala. at 38, 1 So. at 20. Nothing before us shows that Hamlett objected to the failure to swear the jury venire, if, in fact, the venire was not sworn. Certainly, this is not the kind of issue that can be raised on an appeal from a denial of a motion made pursuant to Rule 32, Ala. R.App.P., in the context of a claim of ineffective assistance of appellate counsel, where the record is silent. I would not overrule Washington. I would affirm the judgment of the Court of Criminal Appeals affirming the judgment of the trial court in the present case, and I would overrule or distinguish these cases of the Court of Criminal Appeals: Holland v. State, 668 So. 2d 107 (Ala.Crim.App. 1995), and Tarver v. State, 500 So. 2d 1232, 1241 (Ala.Crim.App.1986). LYONS and BROWN, JJ., concur.

May 26, 2000

9a4cdec6-865d-4ebc-b89b-c23b7b802276

Ex Parte Samra

771 So. 2d 1122

1982032, 1982042

Alabama

Alabama Supreme Court

771 So. 2d 1122 (2000) Ex parte Michael Brandon SAMRA. In re Michael Brandon Samra v. State of Alabama. 1982032 and 1982042. Supreme Court of Alabama. March 3, 2000. Rehearing Denied May 5, 2000. Richard W. Bell, Birmingham; and Richard W. Vickers, Pelham; and John H. Wiley III, Birmingham, for petitioner. Bill Pryor, atty gen., and J. Clayton Crenshaw, asst. atty. gen., for respondent. HOUSTON, Justice. The defendant, Michael Brandon Samra, was convicted of capital murder for the killings of Randy Gerald Duke, Dedra Mims Hunt, Chelisa Nicole Hunt, and Chelsea Marie Hunt. 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). The jury unanimously recommended that the defendant be sentenced to death. The trial court accepted the jury's recommendation and sentenced the defendant to death. The Court of Criminal Appeals unanimously affirmed both the conviction and the sentence. See Samra v. State, 771 So. 2d 1108 (Ala.Crim. App.1999). The defendant filed two petitions for the writ of certiorari, which we granted pursuant to Rule 39(c), Ala. R.App. P. We have carefully read and considered the briefs and the arguments of counsel, and we have searched the record for any plain error. Rule 39(k), Ala. R.App. P. We have found 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.[1] AFFIRMED. HOOPER, C.J., and MADDOX, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] We note that we do not necessarily approve of the following statement in the opinion of the Court of Criminal Appeals: "`There 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."'" 771 So. 2d at 1118. The purpose of appellate review of a criminal case is to determine whether the defendant received a fair trial. This statement appearing in the opinion of the Court of Criminal Appeals seems to assume the very proposition challenged by a defendant on appealthe validity of his or her conviction.

March 3, 2000

1408baa0-51e5-461a-bcaf-d6bbb5c03158

Ex Parte Cater

772 So. 2d 1117

1980615

Alabama

Alabama Supreme Court

772 So. 2d 1117 (2000) Ex parte Lula Dell CATER. (Re Lula Dell Cater v. Etoile Nichols.) 1980615. Supreme Court of Alabama. March 10, 2000. Rehearing Denied April 28, 2000. Edward T. Hines of Thompson, Garrett & Hines, L.L.P., Brewton, for petitioner. *1118 J. Milton Coxwell, Jr., of Coxwell & Coxwell, Monroeville, for respondent. SEE, Justice. This is a private-condemnation case. The circuit court, acting pursuant to Ala. Code 1975, § 18-3-1, granted Etoile Nichols a nonexclusive, private easement for ingress and egress over the property of Lula Dell Cater. Cater was awarded $500 in compensation for the condemnation of the private easement. Cater appealed. The Court of Civil Appeals, on October 9, 1998, affirmed, without an opinion. Cater v. Nichols (No. 2970710), 771 So. 2d 511 (Ala.Civ.App.1998) (table). We granted Cater's petition for the writ of certiorari to determine whether the trial court erred in finding that two other possible routes to and from Nichols's property were not reasonably adequate means of access. We conclude that Nichols failed to satisfy her burden of proving the necessity for the easement and that the trial court incorrectly applied the law to the facts of this case. Therefore, we reverse and remand. Nichols owns a 191-acre tract of land in Monroe County. No one lives on the property, and it is used primarily as timberland. The property is divided into western and eastern parcels by a creek, known as Flat Creek, which runs in a generally southeasterly direction across the property. Flat Creek is deep enough to prevent fording, but it is only 12 to 15 feet wide. The western part of Nichols's property contains 33 acres, and the eastern part contains 158 acres. The eastern part of Nichols's property is accessible by a private road that connects to a public road; the western part, Nichols claims, is landlocked. The easement granted by the trial court is 12 feet wide and 500 yards long; it follows an existing gravel road, which was used for several years as a county road but has since been abandoned. Cater uses this road to access her property, and Nichols also used this road to access her property until Cater erected a gate across it. Nichols's property was once part of an approximately 622-acre tract of land, owned by Nichols's father, that fronted Alabama Highway 21. She acquired her property from her father. While Nichols's father owned the larger tract, he accessed the western part of what Nichols now owns by a private road. That road, which runs from that western portion southward, still exists, but is in disrepair and is impassable during the winter. Cater's property is located to the west of Nichols's property and is separated from Nichols's property by another parcel. The owner of the parcel separating Cater's property from Nichols's property is not a party to this action. Cater's property fronts a public road. Nichols petitioned the Probate Court of Monroe County to condemn a right-of-way over Cater's property to provide Nichols with an outlet to the public road that is adjacent to Cater's property. See Ala. Code 1975, §§ 18-3-1 and 18-3-3. The probate court granted Nichols a right-of-way, and Cater appealed to the Circuit Court of Monroe County. After conducting an ore tenus hearing, the circuit court entered a judgment in favor of Nichols, making, in pertinent part, the following findings of facts and conclusions of law: Cater appealed to the Court of Civil Appeals. The Court of Civil Appeals, without opinion, affirmed the circuit court's judgment. Ala.Code 1975, § 18-3-1, provides: Under the ore tenus rule, a trial court's findings of fact are presumed correct and its judgment will be reversed only if plainly or palpably wrong or against the preponderance of the evidence. See DeWitt v. Stevens, 598 So. 2d 849, 850 (Ala.1992); Brothers v. Holloway, 692 So. 2d 845, 848 (Ala.Civ.App.1997); Tate v. Loper, 459 So. 2d 892, 894 (Ala.Civ.App.1984). The ore tenus rule is especially applicable in private condemnation cases under § 18-3-1. See Tate, 459 So. 2d at 894; see also Brothers, 692 So. 2d at 847-48 ("We note that our standard of review in condemnation cases is highly deferential."). However, § 18-3-1 "`is not a favored statute,'" Southern Ry. v. Hall, 267 Ala. 143, 147, 100 So. 2d 722, 725 (1957) (quoting State ex rel. Carlson v. Superior Court, 107 Wash. 228, 232, 181 P. 689, 691), and the ore tenus presumption of correctness "does not apply where the trial court has incorrectly applied the law to [the] facts," DeWitt, 598 So. 2d at 850. The law applicable to private-condemnation proceedings under the statute is well established. As this Court has stated: Oyler v. Gilliland, 382 So. 2d 517, 519 (Ala. 1980) (citations omitted). *1120 Cater, relying mainly on Southern Railway Co., argues that the trial court erred in granting Nichols a right-of-way over Cater's property because, she says, Nichols had two other reasonably adequate means of access: she says that at a minimal cost Nichols could either 1) build a bridge over Flat Creek and thereby gain access across the eastern portion of her land to the private road that connects to the public road; or 2) repair the private road formerly used by Nichols's father and thereby have access southward to Highway 21. In Southern Railway Co., this Court held that the trial court erred in granting the petitioner a right-of-way because the petitioner already had an existing means of access to his landsthe "clay pit crossing." In that case, the petitioner had sought a right-of-way over the lands of the defendant railroad company, a right-of-way that would have been more convenient than the clay pit crossing. This Court, construing § 18-3-1 (then codified at Title 19, § 56, Code of Ala.1940), stated: *1121 267 Ala. at 146-47, 100 So. 2d at 724-25 (emphasis added). Thus, under § 18-3-1, a landowner is not entitled to condemn a right-of-way across a neighbor's intervening land if the landowner has an existing, reasonably adequate means of access to his property, or if he could construct such access without prohibitive expense. Cater contends that Nichols could build a bridge across Flat Creek with no undue burden and thereby gain access across the eastern part of the Nichols property to the private road that connects to the public road. Cater cites Condry v. Laurie, 184 Md. 317, 41 A.2d 66 (1945). In Condry, the Maryland Court of Appeals stated: 184 Md. at 322, 41 A.2d at 68 (emphasis added). The Maryland court's statement is in accord with Alabama law. Cater asserts that the record contains no evidence of what it would cost Nichols to build a bridge across Flat Creek, and, thus, certainly no evidence to indicate that the cost of the bridge would be prohibitive or disproportionate to the value of Nichols's property. Cater also contends that Nichols already has a reasonably adequate means of access to the western part of the property, by the road formerly used by Nichols's father. Cater asserts that this road is the shortest and nearest route to a public road. Cater also asserts that this road, even though it is in poor condition, can be repaired with minor expense and that Nichols presented no evidence of what it would cost to repair the road, and, thus, certainly no evidence to indicate that the cost of repair would be prohibitive. According to Cater, the trial court excluded that road as a means of access merely because it would be inconvenient for Nichols to repair it. "This [C]ourt has held that the physical convenience of both landowners is a material consideration in determining whether to condemn a right-of-way over a person's property." DeWitt, 598 So. 2d at 852. However, this Court has also held that a right-of-way cannot be granted under § 18-3-1 "`as a matter of mere convenience or as a mere matter of saving expense[; instead,] [t]here must be real necessity before private property can be invaded by a citizen for private purposes.'" Southern Ry., 267 Ala. at 147, 100 So. 2d at 725 (quoting Roberts v. Prassenos, 219 Miss. 486, 69 So. 2d 215 (1954)). After examining the record, including the trial transcript, we agree with Cater that Nichols did not carry her burden of proving that the cost of building a bridge across Flat Creek, or of improving the old road formerly used by her father, would be prohibitive in proportion to the value of Nichols's property. Indeed, the record contains no evidence whatever indicating what it would cost to build a bridge or to improve the old road. Thus, Nichols did not satisfy her burden of proof under § 18-3-1 so as to entitle her to a right-of-way across Cater's property. Moreover, the trial court incorrectly applied the law to the facts of this case. The trial court incorrectly balanced the relative inconveniences and burdens to Cater and to Nichols in determining whether to grant Nichols an easement by necessity. Under Alabama law, in determining whether to grant Nichols an easement by necessity, the issue is not whether the right-of-way she seeks is, of the three possible routes, the nearest and most convenient means of access to her property. Nichols is required under § 18-3-1 to show more than that "the burden which would be imposed upon [Cater] by an access easement in favor of [Nichols] is less than the burden which *1122 would be imposed upon [Nichols] by constructing and maintaining a bridge across Flat Creek." (Trial court's order, supra, at.) Instead, Nichols must show that for her to build a bridge across Flat Creek, or to repair the old road, would be cost-prohibitive, that is, that the expense of building a bridge, or repairing the old road, would be an unreasonable expense disproportionate to the value of her property. As we have stated, the record indicates that Nichols did not make this showing; thus, the trial court erred in rendering a judgment of condemnation granting Nichols a private easement. Therefore, we reverse the circuit court's judgment and remand the case for further proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.

March 10, 2000

56255dff-d693-4d75-8a4b-bc5aa187cd94

Monroe v. Harco, Inc.

762 So. 2d 828

1981065

Alabama

Alabama Supreme Court

762 So. 2d 828 (2000) H.E. MONROE, Jr., as Commissioner of the Department of Revenue; and James D. Martin, as Commissioner of the Department of Conservation v. HARCO, INC., et al. 1981065. Supreme Court of Alabama. February 11, 2000. *829 J. Wade Hope, Alabama Department of Revenue, for petitioner H.E. Monroe, Jr. William A. Gunter, Alabama Department of Conservation and Natural Resources, Montgomery, for petitioner James D. Martin. Matthew C. McDonald and David F. Walker of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for respondent Harco, Inc., et al. C. Lee Reeves of Sirote & Permutt, P.C., Birmingham, for respondents Bruno's, Inc., Sears & Roebuck Co., Wal-Mart Corp., Kmart Corp., Rite Aid Corp., and Delchamps, Inc. Matthew H. Lembke of Bradley, Arant, Rose & White, Birmingham, for respondent CVS Pharmacy. MADDOX, Justice. This case involves the administration of the sales-tax laws of this State. The specific legal issue presented is whether § 40-23-36(b), Ala.Code 1975 ("Subsection (b)"), which delegates to the executive branch the authority to limit the sales-tax discount that Alabama retailers can claim for collecting sales taxes and remitting them to the state, violates the separation-of-powers principle embedded in § 43, Alabama Constitution, 1901.[1] This constitutional issue arose when Harco, Inc., and other large retailing chains, collectively referred to herein as "the retailers," sued H.E. Monroe, the commissioner of the Department of Revenue, and James D. Martin, the commissioner of the Department of Conservation, to permanently enjoin the enforcement of Administrative Regulation 810-6-4-.03, which set a $900 limit on the sales-tax discount that could be claimed by a retailer, regardless of the amount of sales taxes collected by the retailer. The retailers claimed the Governor's issuance of an executive order, which led to the promulgation of a corresponding administrative regulation by the Department of Revenue, violated the separation-of-powers provisions of § 43 of the Constitution. The Circuit Court of Montgomery County agreed and entered a judgment holding that the executive order violated § 43. The commissioners of the Departments of Revenue and Conservation appealed. After carefully reviewing the briefs and thoughtfully considering the parties' oral arguments, we conclude that no constitutional violation occurred in regard to the Governor's issuance of that executive order; consequently, we reverse the judgment of the trial court and remand the cause for further proceedings consistent with this opinion. Since 1939, when the Legislature originally enacted the sales-tax laws, those laws have allowed retailers, who collect and remit the sales taxes to the State, to claim a sales-tax discount. In fact, the Legislature, in 1939, gave the Governor the authority to issue an executive order directing the Department of Revenue to provide for a discount not to exceed 3% of the taxes levied by the Sales Tax Act.[2] No discount was permitted, however, if the *830 retailers did not remit the taxes to the State before they became delinquent.[3] Shortly after the sales-tax laws became effective, questions arose relating to the procedures for claiming the sales-tax discount. In 1943, the Attorney General issued an opinion to the commissioner of the Department of Revenue, advising him that the Department was not authorized to allow a discount for the remittance of collected sales taxes unless the beneficiary of the discount strictly complied with the statute. In 1951, the Legislature amended the statute by adjusting the amount of the discount, but nevertheless retained the language providing that no discount would be authorized or allowed regarding taxes not paid before they became delinquent. In 1959, the Legislature rewrote the salestax statutes, but retained the sales-tax discount. See Acts 1959, 2d Ex.Sess., Act No. 100, p. 298, § 34, which is now codified as § 40-23-36(a), Ala.Code 1975 ("Subsection (a)"). After the Legislature adopted the 1959 Act, Governor John Patterson, on January 8, 1960, issued Executive Order No. 2, which authorized the Department of Revenue to provide for a sales-tax discount. Pursuant to that order, the Department issued Regulation 810-6-4-.03, which allowed the sales-tax discount on taxes collected on sales made on or after October 1, 1959. This regulation was subsequently ratified pursuant to the Administrative Procedure Act (§§ 41-22-1 to 41-22-27, Ala. Code 1975), effective October 1, 1982. The administrative regulation closely mirrored the sales-tax discount allowed by the statute. On May 7, 1996, Governor Fob James issued Executive Order No. 19, which authorized the Department to set a maximum discount of $900 per month, but the Revenue Department never promulgated any regulations to implement the provisions of that executive order. On May 20, 1996, the Legislature adopted Act No. 96-785. That Act amended the sales-tax statutes in their entirety, but what is now Subsection (a) of the sales-tax-discount statute remained unchanged, while Subsection (b) was added.[4] This new Subsection allowed the Governor to authorize the Department to set a maximum discount for any licensed retailer that collects and remits sales taxes to the State, and it authorized the Governor to limit the discount to a particular maximum, a ceiling that would apply to each retailer regardless of the number of the retailer's retail locations in the State. Section 1 of the Act earmarked the additional amounts remitted to the State as a result of applying the ceiling, for use by the Department of Conservation and National Resources for renovation of the State's park system and for use by the Department of Human Resources in administering its foster-care program. On May 31, 1996, Governor James issued Executive Order No. 20, which rescinded Executive Order No. 19 and authorized the Department of Revenue to promulgate regulations making the discount-cap effective. The Department issued the regulations, and this lawsuit by the retailers followed. The trial court held *831 that the executive order and the Department's regulations were unconstitutional. The commissioners of the Departments of Revenue and Conservation appealed. "In reviewing [a question regarding] the constitutionality of a statute, we `approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government.'" Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 159 (Ala.1991) (quoting Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9, 18 So. 2d 810, 815 (1944)). Moreover, "[w]here the validity of a statute is assailed and there are two possible interpretations, by one of which the statute would be unconstitutional and by the other would be valid, the courts should adopt the construction [that] would uphold it." McAdory, 246 Ala. at 10, 18 So. 2d at 815. In McAdory, this Court further stated: 246 Ala. at 9, 18 So. 2d at 815 (citation omitted). We must afford the Legislature the highest degree of deference, and construe its acts as constitutional if their language so permits. Id. Applying the standard of review set out in Part II, we must answer this question: Is § 40-23-36(b) an unconstitutional delegation of legislative power to the executive branch? We think not. Article III of the Alabama Constitution of 1901 creates the framework for the division of powers between the State's legislative, executive, and judicial branches. Each branch within our tripartite governmental structure has distinct powers and responsibilities, and our Constitution demands that these powers and responsibilities never be shared. But "the doctrine of separation of powers does not prohibit the Legislature's delegating the power to execute and administer the laws, so long as the delegation carries reasonably clear standards governing the execution and administration." Folsom v. Wynn, 631 So. 2d 890, 894 (Ala. 1993); see also Porter Coal Co. v. Davis, 231 Ala. 359, 362, 165 So. 93, 96 (1935) (where this Court stated that "`[T]he legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes[,] or intends to make its own action depend'") (quoting United States v. Grimaud, 220 U.S. 506, 520, 31 S. Ct. 480, 55 L. Ed. 563 (1911), in turn quoting Field v. Clark, 143 U.S. 649, 694, 12 S. Ct. 495, 36 L. Ed. 294 (1892)). To deny the Legislature the power to make a law delegating a power to determine some fact or thing "`would be to stop the wheels of government.'" Porter Coal Co., 231 Ala. at 362, 165 So. at 96 (quoting Grimaud, 220 U.S. at 520, 31 S.Ct. 480). This Court has explained: *832 Heck v. Hall, 238 Ala. 274, 282, 190 So. 280, 286 (1939) (quoting State ex rel. Adams v. Burdge, 95 Wis. 390, 402, 70 N.W. 347, 350 (1897)). Sales-tax discounts are unique to taxing schemes involving the collection and remission of sales taxes.[5] Unlike a tax deduction, which is commonly associated with income taxation, a sales-tax discount does not decrease the tax base. Cf. Walter Hellerstein, "State and Local Taxation of Electronic Commerce: Reflections on the Emerging Issues," 52 U. Miami L.Rev. 691, 697-98 (1998); Charles E. McClure, Jr., "Taxation of Electronic Commerce: Economic Objectives, Technological Constraints, and Tax Laws," 52 Tax L.Rev. 269, 338 (1997); and Edward A. Zelinsky, "Are Tax `Benefits' Constitutionally Equivalent to Direct Expenditures?" 112 Harv. L.Rev. 379, 404 (1998), discussing the components of the tax base for retail sales taxes. In Alabama, as in most States, the sales-tax discount functions as a collection tool; Section 40-23-36(a) expressly disallows the discount if a retailer is delinquent in its remittance.[6] The tax base, which is principally determined by § 40-23-2 and further defined by various sales-tax exemptions, see, e.g., § 40-23-4 (exempting the sales of lubricating oil, gasoline, and fertilizer, etc., from the collection of the tax), is determined by the type of transaction, and it is not reduced by the allowance of a sales-tax discount. The discount is a monetary incentive, and it is granted to the retailer for making timely remittances. The Legislature "pays" the discount out of collected sales-tax revenues by allowing the retailer to retain a small percentage of the revenue that otherwise would have to be remitted to the State if certain conditions are not met. It follows, then, that the reduction of a discount is not the levy of a tax. See generally, Zelinsky, supra (discussing cases decided by the United States Supreme Court involving issues requiring a determination of whether various kinds of tax breaks in the Internal Revenue Code are expenditures). Consequently, the delegation of powers to the Governor to set a sales-tax discount that is within reasonable limits established by the Legislature is not, in and of itself, an unconstitutional encroachment on the Legislature's power to levy taxes. Therefore, the key question presented here is whether the Legislature has set "reasonable limits." This case is analogous to Folsom v. Wynn, supra, in which this Court considered whether § 40-4-90, Ala.Code 1975, sometimes referred to as the "proration statute," was constitutional.[7] In that case, Judge William J. Wynn, a circuit judge in the Tenth Judicial Circuit, sued to enjoin the enforcement of the proration statute, in order to avoid reductions in appropriations to the judicial branch. He argued that the statute, which allowed the Governor unilaterally to curtail spending approved by the Legislature, was a delegation of legislative power to the executive branch, and thus violated the provisions of Art. III, § 43, of the Constitution, the *833 same section of the Constitution relied upon by the retailers here. In Folsom, this Court held that the proration statute had not been shown to be unconstitutional, basing its holding on the conclusion that the proration statute contained sufficient guidance to ensure that the Governor effectuated the Legislature's intent. 631 So. 2d at 895. Consequently, § 40-4-90 was upheld because it would not apply in specific instances involving differing facts and circumstances. For example, the Court held that the proration statute did not apply to "constitutionally mandated appropriations or to appropriations otherwise excepted or specified by statute as being fully payable." Id. Furthermore, the Court noted that the statute forbade the Governor from restricting appropriations to coordinate branches "below what [was] adequate and reasonable for [those branches] to perform [their] constitutionally mandated duties." Id. at 896. In this present case, the restrictions on the Governor's ability to determine the amount of sales-tax discounts to be allowed to licensed retailers throughout the State are no less general. Section 40-23-36, in its entirety, provides: Section 40-23-36(b), when read in pari materia with § 40-23-36(a),[8] does not vest the Governor with unlimited discretion to decide what amount retailers can claim as a sales-tax discount. Subsection (a) expressly disallows the Governor from providing for a discount exceeding "five percent of the first $100 of taxes levied and two percent of the taxes levied over $100." Furthermore, by the terms of Subsection (a), the Governor cannot, under any circumstances, allow a discount to retailers who are delinquent in their remittances. Based on the foregoing, we cannot say that the Legislature abdicated its legislative function by authorizing the executive branch to establish a maximum sales-tax discount for retailers. We conclude that the restrictions set out in the statute provide the Governor with sufficient guidelines and operable limits regarding the establishment of sales-tax discounts.[9] Clearly, the Governor is prohibited from granting sales-tax discounts exceeding the amounts the Legislature has set out in the statute. Consequently, we hold that § 40-23-36(b) *834 is a constitutional delegation of authority to the Governor to limit sales-tax discounts allowed to retailers for their prompt remittances of sales taxes. Furthermore, we conclude that Governor James's Executive Order No. 20 clearly abides by the aforementioned statutory limitations, and that the legislative scheme of allowing the Governor to determine the amount of the specific sales-tax discount constitutes nothing more that the delegation of a power to determine the amount deemed necessary to carry out the Legislature's intent of ensuring collection and the prompt remittance of sales taxes to the State. Stated differently, it is not "clear beyond reasonable doubt" that the Legislature was prohibited by the State's fundamental law from delegating to the Governor this function to determine the precise amount of the sales-tax discount retailers could claim. McAdory, 246 Ala. at 9, 18 So. 2d at 818. Having determined that the statute is constitutional and that the Governor had the power to issue the executive order, and having further concluded that the regulations promulgated by the Department of Revenue pursuant to that executive order were also validly issued, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and HOUSTON, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. SEE and LYONS, JJ., dissent. SEE, Justice (dissenting). "It is settled law that the Legislature may not constitutionally delegate its powers, whether the general power to make law or the powers encompassed within that general power, including the `power of the purse'the power to make appropriations." Folsom v. Wynn, 631 So. 2d 890, 894 (Ala.1993). This doctrine of nondelegation is "rooted in the principle of separation of powers that underlies our tripartite system of Government." Mistretta v. United States, 488 U.S. 361, 371, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989); see Ala. Const.1901, Art. III, § 43. "However, the doctrine of separation of powers does not prohibit the Legislature's delegating the power to execute and administer the laws, so long as the delegation carries reasonably clear standards governing the execution and administration."[10]Folsom, 631 So. 2d at 894. Thus, "[s]o long as [the legislature] `shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.'" Mistretta, 488 U.S. at 372, 109 S. Ct. 647 (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406, 48 S. Ct. 348, 72 L. Ed. 624 (1928)) (alteration in Mistretta). In this case, the majority states that because the statute "does not vest the Governor with unlimited discretion to decide what amount retailers can claim as a sales-tax discount," the sales-tax discount statute, Ala.Code 1975, § 40-23-36, contains sufficient guidance for the Governor's exercise of his authority to set a maximum discount for each license holder. 762 So. 2d at 833. A limitation on the Governor's discretion, however, is not the same as guidance for the Governor's exercise of authority. The maximum rates for the sales-tax discount prescribed in § 40-23-36(a) give the Governor no guidance as to the maximum discount he should set under § 40-23-36(b).[11] *835 In Folsom, this Court held that the proration statute, Ala.Code 1975, § 41-4-90, was a constitutional delegation of authority to the Governor, because the statute contained sufficient guidance for the Governor's exercise of that authority. 631 So. 2d at 895. Specifically, § 41-4-90 provides that "[t]he governor shall restrict allotments to prevent an overdraft or deficit," and that all allotments "shall be payable in such proportion as the total sum of all appropriations bears to the total revenues estimated by the department of finance." The proration statute at issue in Folsom provides guidance in terms of a clear objective"to prevent an overdraft or deficit." The language of the sales-tax discount statute, however, provides no objective and no factors for the Governor to consider in determining the rate or the maximum discount. Cf. Mistretta, 488 U.S. at 374-76, 109 S. Ct. 647 (upholding Congress's delegation of authority to the Sentencing Commission to promulgate sentencing guidelines where Congress, among other things, "charged the Commission with three goals"; "specified four `purposes' of sentencing"; and directed it to consider several specified "factors"). In interpreting a statute delegating power to the executive branch, we defer to the executive branch's own interpretation of the power delegated to it by the Legislature. See, e.g., QCC, Inc. v. Hall, 757 So. 2d 1115, 1119 (Ala.2000) (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984)). Therefore, if the executive branch articulates a reasonable and permissible objective to be achieved by the exercise of delegated authority, and the actual exercise of that authority is reasonably calculated to achieve that objective and is not otherwise impermissible, then both the delegation of authority and the exercise of that authority are valid. See QCC, Inc. v. Hall, 757 So. 2d at 1119. ("If the [executive's] reading [of a statute] fills a gap or defines a term in a way that is reasonable in light of the legislature's revealed design, we give the [executive's] judgment `controlling weight.'") (quoting NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 257, 115 S. Ct. 810, 130 L. Ed. 2d 740 (1995), quoting in turn Chevron U.S.A., 467 U.S. at 844, 104 S.Ct. 2778). However, where, as here, the legislative grant of authority contains no explicit guidance for the executive branch, and the executive branch offers no explanation of the goal it seeks to achieve in its exercise of that authority, the exercise is void. For the foregoing reasons, Executive Orders 19 and 20, by which the Governor purported to authorize the Department of Revenue to implement the $900-per-license-holder cap on the sales-tax discount, are void. Therefore, I must respectfully dissent. LYONS, J., concurs. LYONS, Justice (dissenting). I join Justice See's dissenting opinion. I write specially to express my reluctance in doing so, because of the deference this Court owes to the presumption of constitutionality that accompanies acts of the Legislature. Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 159 (Ala.1991). If § 40-23-36(b), Ala.Code 1975, delegated to the Governor the authority to set a prompt-payment discount, in light of some *836 reasonably quantifiable criterion, such as the current financial needs of the State or prevailing interest rates or the retailer's costs of collection, a different situation would be presented. However, I am unwilling to imply the presence of such factors as being within the scope of legislative contemplation. [1] Article III, § 43, of the Constitution of 1901 reads as follows: "In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men." [2] 1939 Acts, Act No. 18, p. 16, § 36. [3] Id. [4] Section 40-23-36, Ala.Code 1975, reads: "(a) The Governor may, by executive order, authorize the Department of Revenue to provide by proper rules and regulations for the allowance of a discount, not to exceed five percent of the first $100 of taxes levied and two percent of the taxes levied over $100 by this division and due and payable to the state by any person licensed under the provisions hereof; provided, that no discount shall be authorized or allowed upon any taxes which are not paid before delinquency, as in this division provided. "(b) For any taxes collected by the license holder on or after June 1, 1996, the Governor may, by executive order, authorize the Department of Revenue to provide by proper rules and regulations for a maximum discount to any license holder and shall be limited to that amount for each retail license holder regardless of the number of retail locations of that license holder within the state." [5] It appears from the record that sales-tax discounts have been allowed since the first sales tax was adopted. From 1939 to 1951 the Legislature authorized the Governor at his or her option to provide for a discount not to exceed 3% of the taxes collected. From 1951 until the present, the Legislature has continued to authorize the Governor at his or her option to provide for a discount that does not exceed 5% of the first $100 of taxes levied and 2% of the taxes levied over $100. The statute has always included language authorizing a discount "not to exceed" a maximum amount. See Part I, supra. [6] In its brief, Harco argues that discounts enable collection by reimbursing retailers for costs incurred in collecting and remitting the tax. If we entirely agreed with this argument, our conclusion that the sales-tax discount is a collection tool would nevertheless remain unaltered, because Harco's argument is founded on the premise that collection would become unduly cumbersome without the allowance of a discount. [7] That statute, among other things, allows the Governor to restrict allotments made by the Legislature, in order to avoid sending the State into debt. [8] As a general rule of statutory construction, a court considering statutes dealing with the same subject matter should read the statutes together, so as to ascertain the meaning and intent of each and to promote harmony and uniformity in the law. See Ex parte Jones Mfg. Co., 589 So. 2d 208, 211 (Ala.1991), and Locke v. Wheat, 350 So. 2d 451, 453 (Ala. 1977). [9] Limitations on the Legislature's authority to delegate power to the executive branch are relaxed in cases where the entity exercising the delegated power itself possesses independent power over the subject matter, as is true in this case. United States v. Mazurie, 419 U.S. 544, 556-57, 95 S. Ct. 710, 42 L. Ed. 2d 706 (1975); see also Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 684, 100 S. Ct. 2844, 65 L. Ed. 2d 1010 (1980) (Rehnquist, J., concurring in the judgment). [10] Such standards enable a court "`in a proper proceeding [to] ascertain whether the will of [the legislature] has been obeyed.'" Mistretta, 488 U.S. at 379, 109 S. Ct. 647 (quoting Yakus v. United States, 321 U.S. 414, 426, 64 S. Ct. 660, 88 L. Ed. 834 (1944)). [11] The validity of the sales-tax discount itself, which was authorized by Executive Order No. 2 in 1960 pursuant to the statute now codified as § 40-23-36(a), is not before this Court. The majority construes § 40-23-36(a) as delegating to the Governor the power to authorize a sales-tax discount for the purpose of "ensuring collection and the prompt remittance of sales taxes to the State." 762 So. 2d at 834. Under that construction, the validity of Executive Order No. 2 and the administrative regulations promulgated pursuant to it, would depend on whether the discount thereby established was reasonably calculated to achieve that purpose and was not otherwise impermissible. The majority does not consider whether the $900 maximum discount is reasonably calculated to achieve that judicially articulated purpose.

February 11, 2000

e0d1a451-8e4c-44e1-b07d-a139bcce5ad1

Ex Parte Wright

766 So. 2d 215

1991001

Alabama

Alabama Supreme Court

766 So. 2d 215 (2000) Ex parte Freddie Lee WRIGHT. (Re Freddie Lee Wright v. State). 1991001. Supreme Court of Alabama. March 2, 2000. *216 Brian F. McDonough, Florham Park, New Jersey, for petitioner. Bill Pryor, atty. gen., and J. Clayton Crenshaw, asst. atty. gen., for respondent. Prior report: Ala.Cr.App., 766 So. 2d 213. The petitioner, Freddie Lee Wright, having filed a motion for stay of execution in this case, and the same having been submitted and duly considered by the Court, IT IS ORDERED that the motion for stay of execution is denied. HOOPER, C.J., and MADDOX, HOUSTON, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. COOK and JOHNSTONE, JJ., dissent. JOHNSTONE, Justice (dissenting). I dissent from the decision to deny a stay of execution. This emergency petition presents us with a macabre peculiarity. The petitioner complains only about the way he is to be put to death. Yet his petition recites persuasive facts that support the conclusion that he is innocent and that his conviction results from lack of a fair trial. In 1979, Freddie Lee Wright's first trial ended in a mistrial when 11 jurors voted to acquit and 1 juror voted to find him guilty (a racially mixed jury). (Emergency Petition, p. 4.) Wright was retried approximately one month after the mistrial. (Emergency Petition, p. 4.) The State used "virtually all of its peremptory challenges to keep blacks off of the jury at the second trial." (Emergency Petition, p. 4.) Wright is black and the victims were white. The only new evidence at the second trial was the testimony of Doris Lacey Lambert, a former girlfriend of Wright and the mother of his child. Wright left Lambert for another woman. (Emergency Petition, p. 5.) Lambert testified that Wright confessed to her that he had killed two people at the Western Auto. The second jury found Wright guilty and recommended a death sentence. In 1981, the Court of Criminal Appeals reversed Wright's conviction. Wright v. State, 407 So. 2d 565 (Ala.Crim.App.1981), cert. denied, 407 So. 2d 565 (Ala.1981), vacated and remanded, Alabama v. Wright, 457 U.S. 1114, 102 S. Ct. 2920, 73 L. Ed. 2d 1325 (1982). On return to remand, the Court of Criminal Appeals affirmed Wright's conviction in an opinion. Wright v. State, 494 So. 2d 726 (Ala.Crim.App. 1985). This Court affirmed the judgment of the Court of Criminal Appeals. Ex parte Wright, 494 So. 2d 745 (Ala.1986), cert. denied, Wright v. Alabama, 479 U.S. 1101, 107 S. Ct. 1331, 94 L. Ed. 2d 183 (1987). In 1987, Wright filed a Rule 20, Ala. R.Crim. P. Temp., coram nobis petition. The trial court denied the petition and the Court of Criminal Appeals affirmed. Wright v. State, 593 So. 2d 111 (Ala.Crim.App.1991), cert. denied, 593 So. 2d 111 (Ala.), cert. denied, Wright v. Alabama, 506 U.S. 844, 113 S. Ct. 132, 121 L. Ed. 2d 86 (1992). In 1994, Wright filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Alabama. See Wright v. Hopper, 169 F.3d 695 (11th Cir.1999). United States District Judge Alex T. Howard denied Wright's petition and the Eleventh Circuit Court of Appeals affirmed. Id., cert. denied, ___ U.S. ___, 120 S. Ct. 336, 145 L. Ed. 2d 262 (1999). Wright claims that when Lambert testified the State was in possession of materials that would impeach her credibility. The District Attorney had five years' worth of psychiatric records that had been obtained from a State Mental Health Clinic where Lambert received treatment and psychiatric medication. Wright contends that Lambert's records reveal that she suffered from auditory hallucinations; that *217 her doctors diagnosed her as borderline mentally retarded; that she had a history of entertaining homicidal fantasies and suicidal thoughts; that she had a history of drug use, including THC and cocaine; that for years she had taken psychiatric medications; and that her doctor described her as "manipulative." (Emergency Petition, pp. 5-6.) The District Attorney did not reveal these records to Wright or his attorneys. Wright and his attorneys did not learn of the records until August or September 1996. (Emergency Petition, p. 6.) After his conviction, Wright and his attorneys learned that Roger McQueen, an accomplice who testified against Wright, had a secret deal with the State that he would be prosecuted only for robbery and that his sentence for robbery would run concurrently with his sentence in Mississippi for armed robbery. (Emergency Petition, p. 6.) In 1992, McQueen was released from a Mississippi prison. He was not returned to Alabama to serve his sentence for his role in the murders. (Emergency Petition, p. 7.) At a federal hearing on Wright's habeas corpus petition, McQueen affirmed the existence of a secret deal with the State, and recanted his testimony against Wright. (Emergency Petition, p. 7.) Before indicting Wright for the murders, the State had indicted Theodore Otis Roberts for the murders based on an eyewitness's identification of Roberts, a ballistics report identifying Roberts's handgun as the murder weapon, and an incriminating statement made to the police by Roberts's girlfriend. (Emergency Petition, p. 4.) When McQueen and Percy Craig, two confessed participants in the murders, implicated Wright as the "triggerman," the State dismissed the charges against Roberts. The District Attorney did not inform Wright or his attorneys of these facts. The prosecuting District Attorney, Chris Galanos, testified at the federal habeas hearing that he should have given Wright and his attorneys copies of Lambert's psychiatric records, any information about a deal between the State and McQueen, and the evidence against Roberts. (Emergency Petition, p. 7.) Judge Howard denied Wright's request for habeas relief because of "legal technicalities and [his] belief that a federal court was not the proper forum in which to re-try the case." (Emergency Petition, p. 9.) Except under Rule 39(k), Ala. R.App. P., Wright's claim of innocence may be procedurally barred because his post-conviction counsel have dropped the ball along the way. Wright's complaints about the State's withholding evidence regarding Roberts's participation have already been before us in Wright's 1987 Rule 20 petition. However, from what I can gather in the haste that this last-minute petition requires of us, Wright's complaints about the witnesses Lambert and McQueen have not been before us yet because Wright did not discover the information in time to include it in his 1987 Rule 20 petition. Whether Wright is electrocuted or injected seems insignificant compared to the likelihood that we are sending an innocent man to his death. We should stay this execution briefly and take another look at this case under Rule 39(k). COOK, J., concurs.

March 2, 2000

2cf3a80c-4597-45d1-8cda-04facdffe996

Creel v. Creel

763 So. 2d 943

1981820

Alabama

Alabama Supreme Court

763 So. 2d 943 (2000) Deborah Maudlin CREEL v. Joyce R. CREEL. 1981820. Supreme Court of Alabama. February 11, 2000. *944 Robert L. Bowers, Clanton, for appellant. Richard W. Bell, Birmingham, for appellee Joyce R. Creel. William P. Boggs of Boggs & Hayes, Clanton, for intervenor. HOUSTON, Justice. Joyce R. Creel filed a declaratory-judgment action in the Chilton Circuit Court, seeking a judgment declaring that she had been the common-law wife of Joseph David Creel, Sr., at the time of his death. The court entered such a judgment. The defendant Deborah Maudlin Creel appeals. We affirm. Joyce Creel ("Joyce") and Joseph David Creel, Sr. ("Joseph Sr.") were married in 1948. One of them sued for a divorce in 1976, and a final divorce judgment was entered on April 6, 1977. During that same month, Joyce had surgery. During her recuperation, she and Joseph Sr. renewed a relationship that resembled a marital relationship. Through 1981, they lived together and held themselves out as being married. However, in 1982, they again had difficulties in their relationship and Joyce, claiming to be married to Joseph Sr., sued for a divorce. However, by September 10, 1983, Joyce's action had been dismissed by agreement of the parties. Neither Joyce nor Joseph Sr. ever participated in any marriage ceremony with each other or with anyone else after their divorce in 1977. Joyce and Joseph Sr. had a son named Joseph David Creel, Jr. ("Joseph Jr."). In the late 1980s, Joseph Jr. married Deborah Maudlin, who then became Deborah Maudlin Creel ("Deborah"). Deborah and Joseph Jr. were divorced in 1994. Before her divorce, Deborah had been living in the house occupied by Joseph Sr. After the divorce, she continued to live in the house occupied by Joseph Sr. On February 1, 1997, Joseph Sr. died of a stroke. His daughter Cherry Creel Parmer ("Cherry") applied for letters of administration on his estate. Deborah also applied for letters of administration, claiming that she was the wife of Joseph Sr. by a common-law marriage she said had occurred during the time after her divorce from Joseph Jr. The Chilton County Probate Court, ruling that Deborah had been the common-law wife of Joseph Sr. at the time of his death, appointed her administratrix. Cherry appealed to the Chilton Circuit Court. While the case was pending in the circuit court, Joyce filed two motions in that case, including a motion to remand the case to the probate court so that she could be appointed administratrix of Joseph Sr.'s estate. The circuit court did remand the case, stating that the probate court had no jurisdiction to determine whether a common-law marriage existed. Deborah then petitioned this Court for a writ of mandamus. See Ex parte Creel, 719 So. 2d 783 (Ala.1998). This Court held that the probate court did have jurisdiction to make the determination whether there had been a common-law marriage; we noted *945 that Joyce's motion filed in the circuit court for a remand and an appointment as administratrix had not been ruled on. 719 So. 2d at 784 n. 1. While the probate action described above was pending in the Chilton Circuit Court, Joyce filed her declaratory action in that same court. That court ruled that Joyce had been the common-law wife of Joseph Sr., at the time of his death. Deborah now appeals that declaratory judgment. Deborah contends here, as she did in the circuit court, that Joyce's declaratory-judgment action should have been barred on the basis that it deals with the same parties and the same issue as the action initiated in the probate court by Deborah and Cherry; she argues that, in reality, Joyce's action was nothing more than a disguised appeal of the probate court's ruling. Deborah argues that the probate case and Joyce's circuit-court case primarily concern the same issue: Which of them, if either, was the common-law wife of Joseph Sr. at the time of his death? In addition, she states that the parties in the two cases are identical, in that she alleges that both she and Joyce were parties to both actions. A trial court will not exercise jurisdiction over a declaratory-judgment action if there is pending at the same time another action or proceeding that involves the same parties and in which the same issue is involved. Evans v. Cumberland Lake Country Club, 682 So. 2d 11, 15 (Ala. 1996); Home Ins. Co. v. Hillview 78 West Fire Dist., 395 So. 2d 43, (Ala.1981); Mathis v. Auto-Owners Ins. Co., 387 So. 2d 166, 167 (Ala.1980); Foreman v. Smith, 272 Ala. 624, 133 So. 2d 497 (1961). However, when pending cases do not involve the same parties, "[t]he trial court has wide discretion in determining whether to award declaratory relief when another action presents the same issue." Ex parte Breman Lake View Resort, L.P., 729 So. 2d 849, 851 (Ala.1999); Home Ins. Co., 395 So. 2d at 45. It is questionable whether Joyce was a party to the probate proceeding involving Deborah and Cherry. Deborah supports her argument that Joyce was a party to the probate proceeding by pointing out that in the circuit court Joyce filed two motions in that probate proceeding and filed a brief with this Court when Deborah petitioned for a writ of mandamus. However, in our opinion in Ex parte Creel, we did not discuss any of the issues as they might have concerned Joyce. In that opinion, we mentioned Joyce only in footnote 1, which read: 719 So. 2d at 784. The facts Deborah has placed before us in this present proceeding are insufficient to prove that Joyce was a party to the probate proceeding involving Deborah and Cherry. It appears that the circuit court never formally made her a party to that probate proceeding, and it appears she did not attempt to intervene in that probate proceeding under Rule 24, Ala. R. Civ.P. Certainly, Deborah has shown no evidence that would allow us to hold that the trial court abused its wide discretion. We cannot say the circuit court erred in allowing Joyce to proceed with her declaratory-judgment action. Deborah argues next that the declaratory-judgment action, or at least Joyce's claim of a common-law marriage to Joseph Sr., should have been precluded by the 1982 divorce action initiated by Joyce. Why? That action was dismissed, without prejudice, on May 16, 1983. There was no resolution of any issue in that action; therefore, we need not discuss questions of claim preclusion or issue preclusion, for there was no preclusion at all. Joyce sued for a divorce in 1982 (five years after she and Joseph Sr. had been divorced). The *946 trial court did not enter, or purport to enter, a divorce in that 1982 action. Deborah also argues that the evidence presented did not support the circuit court's judgment declaring that Joyce had been the common-law wife of Joseph Sr. at the time of his death. A trial court's finding of fact based on ore tenus evidence is entitled to considerable deference. Posey v. Posey, 614 So. 2d 1041, 1042 (Ala. 1993); Browning v. Carpenter, 596 So. 2d 906 (Ala.1992). When the trial court's judgment is based on findings of fact that, in turn, were based on ore tenus evidence, an appellate court will not disturb that judgment "unless it is unsupported by the evidence or is palpably wrong. Mangina v. Bush, 286 Ala. 90, 237 So. 2d 479 (1970)." CRW, Inc. v. Twin Lakes Property Owners Ass'n, Inc., 521 So. 2d 939, 941 (Ala. 1988). Id. The elements of a common-law marriage are: "(1) capacity; (2) present agreement or mutual consent to enter into the marriage relationship ...; (3) public recognition of the existence of the marriage; and (4) cohabitation or mutual assumption openly of marital duties and obligations." Adams v. Boan, 559 So. 2d 1084, 1086 (Ala.1990). The circuit court heard evidence indicating that during the years 1977 to 1981 Joyce and Joseph Sr. lived together, had sexual relations, and held themselves out as being married. Joyce sued for a divorce in 1982; however, her divorce action was dismissed. In his order in this present action, the trial judge stated: Nothing in the record indicates that the circuit court abused its discretion in making this determination. The judgment of the circuit court is affirmed. AFFIRMED. MADDOX, SEE, BROWN, and ENGLAND, JJ., concur.

February 11, 2000

c86bda40-5074-466a-b198-f2c12b34d37f

Bell v. TR Miller Mill Co., Inc.

768 So. 2d 953

1980653

Alabama

Alabama Supreme Court

768 So. 2d 953 (2000) Jasmin BELL, as mother of Jasmarie Bell, deceased v. T.R. MILLER MILL COMPANY, INC. 1980653. Supreme Court of Alabama. February 4, 2000. Rehearing Denied April 7, 2000. *954 Winn Faulk of Drinkard, Newton & Cumpton, Mobile, for appellant. Edward T. Hines of Thompson, Garrett & Hines, L.L.P., Brewton; and James L. Martin, Eufaula, for appellee. MADDOX, Justice. The plaintiff Jasmin Bell filed this wrongful-death action based primarily upon the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"). The action arose out of an automobile accident that occurred in Barbour County. The plaintiff alleges that that accident occurred when the plaintiffs automobile hit a sagging telephone line. The plaintiffs child, Jasmarie Bell, was killed in the accident. The plaintiff alleges that the telephone line was caused to sag when a pole, which had been manufactured by the defendant T.R. *955 Miller Mill Company, Inc. ("Miller"), broke. The action originally included Bellsouth Telecommunications (the owner of the telephone pole) and other defendants, but this appeal involves only the plaintiff and the defendant Miller. Trial was commenced before a jury, but the court granted Miller's motion for a directed verdict at the close of the plaintiff's case. The plaintiff appeals from the resulting judgment for Miller. The facts relevant to this appeal are as follows: On August 12, 1995, Jasmin Bell and her two children, Jasmarie and Jason, were traveling north on U.S. Highway 431 near Eufaula. Immediately before Bell passed the intersection of U.S. Highway 431 and Alabama Highway 131 (Bakerhill Highway), Jeffrey Bertelson stopped his van at the Beeline convenience store located at the southwest corner of that intersection. Bertelson parked his van on the crest of a hill by a fuel island and went inside the store. The van rolled down the store's sloping driveway, toward Highway 131; it crossed Highway 131 and struck a guy-wire attached to a telephone pole. The guy-wire on the telephone pole either was severed or broke loose from the pole, and the pole broke. When the pole broke, the telephone lines sagged down over Highway 431 to a level of approximately 9 ½ feet above the road. A recreational vehicle (RV) traveling south on Highway 431 struck the lines, causing the lines to loop forward, upward, and over the RV (by a "jump rope effect"). After the lines cleared the RV, they dropped back down to a level of approximately one foot above the road. At this time, Bell's car, which was approaching the intersection, struck the low-lying lines. The lines lifted Bell's car into the air, and the car then came down on its back bumper and came to rest upside down in the highway. Jasmarie Bell was ejected from the car during the accident and died as a result. Jasmin Bell, as the mother of Jasmarie, filed this action on January 9, 1996, in the Circuit Court of Barbour County. An amended complaint added Miller as a defendant. Against Miller she stated claims of negligent or wanton manufacturing and marketing of the telephone pole, alleging that, as a direct and proximate consequence of the negligence or wantonness, Miller's acts combined and concurred with the other defendants' acts to cause the wrongful death of Jasmarie Bell. Bell also based her wrongful-death claim against Miller on the AEMLD, alleging that the telephone pole had been defective and unreasonably dangerous and that as a result of its defective and unreasonably dangerous nature her daughter Jasmarie had been killed.[1] At the close of Bell's case, Miller filed a "Motion for a Directed Verdict at the Close of the Plaintiffs Case." After holding a hearing on Miller's motion, the trial court granted it. Bell appeals from the resulting judgment for Miller. She presents five issues for review: (1) Whether a telephone or utility pole, despite having been installed in the ground, is a "product" for purposes of the AEMLD; (2) whether Bell offered substantial evidence to prove liability under the AEMLD; (3) whether Bell offered substantial evidence to prove her negligence or wantonness claim; (4) whether the evidence before the court at the close of Bell's evidence was sufficient to support a ruling that Miller was entitled to a judgment as a matter of law based upon its affirmative defense of "intervening cause"; and (5) whether the trial court erred in precluding Bell from offering into evidence a quality-control memorandum that was prepared for Miller and which Bell alleged *956 related to the defect that she says caused the pole to break. The primary issue presented in this case is whether the plaintiff met her burden of presenting substantial evidence to prove her claims against the defendant Miller. In addressing this issue, we re-state the rules that govern our review. An appellate court, when reviewing a ruling on a motion for a judgment as a matter of law,[2] uses the same standard the trial court used initially 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 presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So. 2d 1350 (Ala.1992). For actions filed after June 11, 1987, the nonmovant must present "substantial evidence" in order to withstand a motion for a judgment as a matter of law. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assur. Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, supra, at 1353. 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 as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court's ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So. 2d 1126 (Ala. 1992). We first consider whether a telephone pole that has been installed in the ground is a "product" for purposes of the AEMLD. Miller, citing Wells v. Clowers Constr. Co., 476 So. 2d 105 (Ala.1985), argues that, because the telephone pole was installed in the ground and was securely attached to the land, it was a structural improvement and, as such, cannot be classified as a "product" for purposes of the AEMLD. Miller recognizes that the Court of Civil Appeals, in Thornton Properties v. Alabama Power Co., 550 So. 2d 1024, 1025-26 (Ala.Civ.App.1989), held that the utility poles in question in that case were personal property, not fixtures, but it states that the opinion in Thornton Properties "is inconsistent and in conflict with the holding of this Honorable Court in Wood Preserving Corp. v. State Tax Commission, 235 Ala. 438, 179 So. 254 (1938)." The plaintiff states that since it decided the Wells case this Court has decided several cases, under the AEMLD doctrine, that involved products that had a more permanent connection to real estate than did the telephone pole in this case. She cites Beam v. Tramco, Inc., 655 So. 2d 979 (Ala.1995) (involving a conveyor belt installed in a grain-storage facility); Sears, Roebuck & Co. v. Harris, 630 So. 2d 1018 (Ala.1993)(gas water heater in a home); McDaniel v. French Oil Mill Mach. Co., 623 So. 2d 1146 (Ala.1993)(cylindrical rotary soybean conditioner located in a soybean extraction facility); and King v. S.R. Smith, Inc., 578 So. 2d 1285 (Ala.1991)(diving board that had been installed with an in-ground, vinyl-lined swimming pool). Although we note that a number of jurisdictions adhere to the general rule upon which Miller's argument is based, namely that structural improvements to real property are not considered products for purposes of products-liability actions,[3]*957 we believe that a review of our cases applying AEMLD law involving products that have been affixed to real property shows that the policies underlying the application of the AEMLD doctrine have little relation to the policies underlying the fixtures doctrine, and that the application of products-liability law should not be totally dependent upon the intricacies of real-property law. Consequently, based upon the facts of this case, we hold that, although the telephone pole here was installed in the ground and was attached to the property, it did not by that fact lose its character as a "product" for purposes of the AEMLD.[4] Cf. Pamperin v. Interlake Companies, Inc., 634 So. 2d 1137, 1140 (Fla.Dist.Ct.App.1994) (holding that, as a matter of law, a storage-rack system attached to real property is a "product" for purposes of a products-liability action); Wireman v. Keneco Distribs., Inc., 75 Ohio St.3d 103, 106, 661 N.E.2d 744, 747 (1996) (holding that, based upon the statutory definition of "product," an item must be personal property before it can fall within the realm of products-liability law); and Pacific Metal Co. v. Northwestern Bank of Helena, 205 Mont. 323, 327, 667 P.2d 958, 962 (1983) (holding that a building constructed on leased real property pursuant to a lease was personal property). The next issue Bell raises is whether she presented substantial evidence to substantiate her products-liability claim. In order to establish liability under the AEMLD, the plaintiff must show that an injury was caused by one who sold a product in a defective condition that made the product unreasonably dangerous to the ultimate user or consumer; that the seller was engaged in the business of selling such a product; and that the product was expected to, and did, reach the user without substantial change in the condition in which it was sold. Sapp v. Beech Aircraft Corp., 564 So. 2d 418 (Ala.1990). Furthermore, the burden of proof rests with the plaintiff to prove that the product left the defendant's control in an unreasonably dangerous condition and not fit for its expected use, and that that which caused the product to be in such an unfit condition in fact caused the injury. Sears, Roebuck & Co. v. Haven Hills Farm, Inc., 395 So. 2d 991, 995 (Ala.1981). Viewing the evidence in the light most favorable to the plaintiff, and entertaining such reasonable inferences as the jury would have been free to draw, we conclude that there is a factual question as to whether the telephone pole in question left Miller's control in an unreasonably dangerous condition and whether the defects, if any, were in fact the cause of Jasmarie's death. See Lemond Constr. Co. v. Wheeler, 669 So. 2d 855, 862 (Ala.1995) (stating that it is well established that the question of proximate cause is almost always a question of fact to be determined by the jury and that the question must go to the jury if reasonable inferences from the evidence support the plaintiff's claim); Tuscaloosa *958 County v. Barnett, 562 So. 2d 166, 169 (Ala.1990) (holding that questions of proximate causation and intervening cause are questions for the jury); and Cain v. Sheraton Perimeter Park South Hotel, 592 So. 2d 218, 221 (Ala.1991) (holding that the question of proximate cause is a question of fact to be determined by the jury). Based upon the record, we hold that the plaintiff Bell, who bore the burden of proof, produced substantial evidence creating a factual dispute requiring resolution by the jury. Dr. Philip Opsal, one of Bell's expert witnesses, testified that the pole in question contained various defects, such as decay and bursts.[5] He also stated that these defects were "pre-treatment defects," meaning that they had been present in the pole while it was being treated, or manufactured, by Miller. Dr. Opsal further stated that decay had been detected in the zone of the break, or the area of the pole where the break occurred. Mr. Ray Arms, another of Bell's expert witnesses, stated that if the pole in this case had been sound, then "in this specific application at this specific location [it] should never have fallen." Given this testimony, it was error for the trial court to grant Miller's motion for a judgment as a matter of law as to Bell's AEMLD claim. Our holding does not preclude Miller from proving its affirmative defenses of lack of causation and intervening cause. We merely hold that it was error for the trial court to remove the AEMLD claim from the jury. Bell next argues that the trial court erred in granting Miller's motion for a judgment as a matter of law as to her negligence or wantonness claims. Miller contends that Bell failed to produce substantial evidence as to two elements of her negligence claim: (1) breach of duty; and (2) proximate cause. We disagree. Viewing the facts in the light most favorable to Bell, we conclude that the trial court erred in granting Miller's motion for a judgment as a matter of law as to Bell's negligence claims. As indicated by the facts we set out in Part II, Bell produced substantial evidence that creates a factual question to be determined by the jury, namely whether Miller negligently manufactured the telephone pole in question and, if so, whether the negligence in manufacturing the pole was the proximate cause of Jasmarie's death. Bell also produced substantial evidence, through the testimony of Phillip Opsal and Dr. Frank Telewski, that raises a factual question regarding her claim of negligent inspection by Miller. Therefore, the judgment as a matter of law in favor of Miller on these negligence claims was improper. We further conclude that the trial court did not err in entering a judgment as a matter of law in favor of Miller on Bell's wantonness claim. Bell failed to produce substantial evidence in support of that claim. The fourth issue Bell presents for review is whether the evidence before the trial court at the close of Bell's evidence was sufficient to support a ruling that Miller was entitled to a judgment as a matter of law based upon its affirmative defenses of intervening cause and lack of causal relation. We have determined, in Part II, supra, that it was improper for the trial court to grant Miller's motion for a judgment as a matter of law because we concluded that the issues of proximate cause and intervening cause were questions for the jury. See Tuscaloosa County v. Barnett, supra (holding that questions of proximate *959 cause and intervening cause are questions for the jury). Therefore, we pretermit a discussion of this issue. The final issue is whether the trial court erred in precluding Bell from offering a quality-control memorandum by Miller into evidence. The memorandum was prepared by Joey Pate, Miller's quality-control manager.[6] Bell argues that the trial judge erred in excluding this evidence because, she says, it was relevant to show a "pattern and practice of misconduct" on the part of Miller. On the other hand, Miller contends that the trial judge properly excluded the memorandum because, it says, Bell failed to lay the proper predicate for its admission and failed to show that the memorandum was created on a date reasonably contemporaneous to the date that the pole in question was treated, or manufactured, by Miller. Miller also asserts that the trial judge properly excluded the Pate memorandum because, Miller says, it was cumulative of copies of other inspection audits that the trial judge allowed Bell to introduce. There is a dispute as to the exact year when the Pate memorandum was created. Bell argued that the memorandum was created in January 1989. However, Pate testified at a deposition that he published the memorandum in January 1988. Bell's counsel assured the trial judge that he could prove that the memorandum was created in 1989. The trial judge conditioned the admission of the memorandum on Bell's counsel's being able to show that the memorandum was created more recently than January 1988. The trial judge reasoned that if the memorandum was created in 1988, it would be too remote to be probative as to alleged defects in a pole treated by Miller in late 1989. Rulings on the admissibility of evidence are within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion. Bama's Best Party Sales, Inc. v. Tupperware, U.S., Inc., 723 So. 2d 29 (Ala.1998). Based upon the facts of this case, we find no abuse of discretion in the trial judge's excluding the Pate memorandum. Bell's counsel assured the trial judge that he could show that the memo was created more recently than 1988. The trial judge conditioned the memorandum's admissibility on Bell's counsel's being able to establish that the memo was created later than 1988, but the record does not indicate that Bell's counsel established that. Also, the memorandum was cumulative of other evidence that was admitted. We conclude that the telephone pole at issue in this case was a "product" for *960 purposes of the AEMLD. Based upon that conclusion, we hold that it was error for the trial court to grant Miller's motion for a judgment as a matter of law on Bell's AEMLD and negligence claims. We conclude that the trial court properly entered the judgment as a matter of law in favor of Miller on Bell's wantonness claim. We further conclude that the trial court did not abuse its discretion in excluding the Pate memorandum, based upon the facts shown in this record. Therefore, the judgment of the trial court is affirmed insofar as it relates to Bell's wantonness claim. The judgment is reversed insofar as it relates to Bell's AEMLD and negligence claims, and the cause is remanded for proceedings consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. HOUSTON, J., recuses himself. [1] Bell also alleged that she and her son Jason had suffered severe and permanent injuries as a result of the accident, and she sought damages based on those injuries. Pursuant to a stipulation of the parties, the trial court dismissed Jason and Jasmin Bell's personal-injury claims against Miller. Consequently, the only issue tried before the jury was the claim against Miller alleging the wrongful death of Jasmarie Bell. [2] Miller filed a "motion for a directed verdict." However, effective October 1, 1995, Rule 50, Ala. R. Civ.P., was amended, as a matter of form only, so as to rename "motions for directed verdict" and "motions for judgment notwithstanding the verdict" as "motions for judgment as a matter of law." [3] See Easterday v. Masiello, 518 So. 2d 260 (Fla.1988) (jail facility); Pennington v. Cecil N. Brown Co., 187 Ga.App. 621, 622, 371 S.E.2d 106, 107 (1988) (church parking lot); Moore v. Jesco, Inc., 531 So. 2d 815, 817 (Miss.1988) (steel poultry houses); Scott v. Missouri Inv. Trust, 753 S.W.2d 73, 74 (Mo. App.1988) (common stairway of apartment building); Begay v. Livingston, 99 N.M. 359, 367, 658 P.2d 434, 442 (1981) (building, parking ramp, and parking space); and Cox v. Shaffer, 223 Pa.Super. 429, 431, 302 A.2d 456, 457 (1973) (silo). [4] Although the trial judge did not specifically state his reasons for granting the motion for a directed verdict, it appears that it was not because he thought the plaintiff could not maintain an AEMLD action against Miller. It appears to us that he based his ruling on a belief that, given the facts and circumstances of the case, the plaintiff had failed to prove proximate causation. When he granted the motion he stated, in part: "I think the jury would have to suppose or assume some facts for them to make the leap to find against T.R. Miller.... I don't think they should have to do that. I think the plaintiffs have not met their burden of proof, and I hesitate to make this ruling, but I think it is the right ruling." [5] Dr. Opsal explained that a "burst" is a condition that may occur in a pole during the kiln-drying process. He pointed out that during this process, a pole is placed in a kiln and exposed to heat to reduce the moisture content so that the oil or preservative being used to treat the pole can successfully penetrate the wood. If the temperature in the kiln becomes too high, pockets of water within the pole develop into steam and may damage the wood fiber, resulting in the condition referred to as a "burst." [6] The memorandum reads, in part: "We have made another and hopefully beneficial change to address repeated deficiencies through the framing operation. Joel Sullivan came on the seventh of January on a normal quality audit of our plant operations. The quality audit of the storage yard revealed numerous deficiencies of repeated nature. The defects were: decay in the butts of poles, improper brands, bark on the lower half of poles, and compression wood. This is regretful as to the magnitude of discovered defects. "The immediate corrective action: The framing foreman was confronted as to his action to make a change in the framing operation. "A. The framing deck will be slowed down to a setting of one or two, to allow time for completion of job. "B. Assign a man at butt of poles to be responsible for bark removal, check placing of butt brand and also check pole decay. "C. Framing foreman will assume a position at the top of the poles and place the hammer mark in the top of pole after it meets all specifications. He will keep a good record of operation on a charge basis. "It is our responsibility to turn out a quality pole to all customers and hopefully this action will bring about more consistency during the production of a pole. "\s\ Joseph Pate, Jr. "Q.C. Manager."

February 4, 2000

54f54c29-076d-49ab-8375-d37bf23d08fb

Ex Parte Hunter

777 So. 2d 60

1990050

Alabama

Alabama Supreme Court

777 So. 2d 60 (2000) Ex parte Darrell Lee HUNTER. (In re Darrell Lee Hunter v. State of Alabama). 1990050. Supreme Court of Alabama. March 3, 2000. Rehearing Denied May 5, 2000. Tim W. Fleming of Stokes, Clinton, Fleming & Shirling, Mobile, for petitioner. Bill Pryor, atty. gen., and William D. Dill, deputy atty. gen., for respondent. HOUSTON, Justice. Darrell Lee Hunter was indicted in Mobile County on three counts: an intentional-murder count, pursuant to § 13A-6-2(a)(1), Ala.Code 1975; a first-degree-robbery count, pursuant to § 13A-8-41; and a felony-murder count, pursuant to § 136-2(a)(3). The evidence at trial indicated, without dispute, that Hunter rode in an automobile with two others to the place where the robbery and killing took place and that someone in the group of three shot the victim. Through a statement voluntarily given to the police, and put in evidence as part of the State's case, Hunter admitted that the three had been "riding around looking for someone to rob" and that "they were going to rob someone." Furthermore, he admitted that after the victim had been shot he got out of the car to remove items of clothing from the victim. Hunter denied being the triggerman. At the close of the defense's case, the trial court dismissed the felony-murder count.[1] The jury found Hunter guilty of intentional murder and first-degree *61 robbery. The court entered a judgment of conviction and sentenced Hunter to two terms of life imprisonment, the sentences to be served concurrently. The Court of Criminal Appeals, on August 27, 1999, affirmed both convictions and sentences, without an opinion. Hunter v. State, (No. CR-98-1053), 778 So. 2d 875 (Ala.Crim.App.1999) (table). This Court granted certiorari review to consider one issue: Did the trial court err by denying the defendant's motion for a mistrial based on the State's violation of a discovery order? At the trial a codefendant testified that Hunter had been the triggerman. Only one statement by any witness other than that codefendant suggested that Hunter was, or may have been, the triggerman. The State called a police officer, Lloyd Washington, of the Mobile Police Department, who testified that he went to Chatom, in Washington County, to investigate this case because, he said: "We received a call from the Chatom Police Department inquiring about a homicide that possibly occurred in the Mobile area. Said that they had a black male, called himself `Scarface,' that's living with some friends in Chatom, was bragging about committing a crime in Mobile." (Emphasis added.) The evidence was undisputed that the defendant Hunter went by the name Scarface. The defense attorney immediately objected and asked for a mistrial because the State had not disclosed this statement to the defense, in violation of the trial court's discovery order. The trial court had entered an "open-file-discovery" order obligating the State to disclose all incriminating evidence that was to be used against Hunter. The prosecutor told the trial court that he had not known that Officer Washington was going to make that particular statement. However, Alabama law imputes to a prosecutor knowledge of the information supplied by an investigating officer's testimony. McMillian v. State, 616 So. 2d 933 (Ala.Crim.App. 1993). The trial court denied Hunter's motion for a mistrial. Other than the testimony of the codefendant, the statement by Officer Washington is the only statement suggesting that Hunter was, or may have been, the triggerman. This statement also placed in the mind of the jury the notion that Hunter may have been bragging about doing the killing. The substance of the State's case was based on the testimony of the codefendant; that codefendant took the stand and testified that Hunter had shot the victim. The defense attempted to rebut this testimony by calling three witnesses who all testified that the codefendant had claimed to have done the shooting. Hunter was prejudiced by the prosecutor's failure to disclose the information contained in Officer Washington's statement. The prejudicial effect of the failure to disclose requires that Hunter's conviction for intentional murder be reversed. However, as discussed below, the admission of Officer Washington's statement was harmless error insofar as the robbery conviction is concerned. Hunter himself admitted that he had set out with two others to rob someone. Hunter admitted that after the shooting he got out of the car to take the victim's property. He had the intent to rob. He knew that the two people he was with were trying to rob. He was their accomplice. Therefore, even without Officer Washington's statement, the evidence overwhelmingly proved Hunter's guilt of first-degree robbery. Hunter's conviction and life sentence for robbery are affirmed. His conviction and life sentence for intentional murder are reversed. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HOOPER, C.J., and MADDOX, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] The merits of that dismissal are not before us.

March 3, 2000

708f40ed-7845-4619-a04c-3d6d3ce216b6

Ex Parte State Farm Mut. Auto. Ins. Co.

761 So. 2d 1000

1980982

Alabama

Alabama Supreme Court

761 So. 2d 1000 (2000) Ex parte STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. (Re Billy Smith v. State Farm Mutual Automobile Insurance Company). 1980982. Supreme Court of Alabama. March 3, 2000. *1001 T. Randall Lyons of Nix, Hotsford & Vercelli, P.C., Montgomery, for petitioner. Kenneth J. Mendelsohn and Thomas E. James of Jemison & Mendelsohn, P.C., Montgomery, for respondent. JOHNSTONE, Justice. State Farm Mutual Automobile Insurance Company is a defendant in an action filed in the Montgomery County Circuit Court by its insured Billy Smith. State Farm petitions for a writ of mandamus directing Judge Tracy McCooey to vacate her order compelling State Farm to produce any and all documents in its claims file that were made in the ordinary course of business before State Farm was sued. We deny that petition. On May 2, 1997, the vehicles driven by Billy Smith and Andrew Sullivan collided. As a result of the collision, Smith sustained a neck injury that necessitated surgery and caused him lost wages and pain and suffering. Smith made a claim against Sullivan's automobile insurance company. *1002 In April 1998, Sullivan's insurance company tendered to Smith $25,000, the policy limits. State Farm approved the settlement. Smith then made a claim under his automobile insurance policy for underinsured motorist benefits. State Farm denied Smith's claim. On August 6, 1998, Smith filed a breach of contract action against State Farm. Smith also filed a request for production. He requested that State Farm produce, among other things, "[a] copy of the claim[s] file." State Farm objected to the request. State Farm specifically stated, "The claims file is privileged; it is the subject of work product, attorney-client privilege, as well as documents prepared in anticipation of litigation." Pursuant to Ex parte Fuller, 600 So. 2d 214 (Ala.1992), Smith moved to compel production of documents in the claims file that were not generated in anticipation of litigation. State Farm responded and asserted that all documents were prepared in anticipation of litigation because 12 days after the accident Smith obtained counsel. In support of its response, State Farm produced an affidavit from the State Farm employee handling the claims file. Thereafter, the trial court entered an order stating, in pertinent part, as follows: State Farm then filed this petition for a writ of mandamus. "A writ of mandamus is an extraordinary remedy that requires the showing of: (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." Ex parte McNaughton, 728 So. 2d 592, 594 (Ala.1998). Mandamus is the appropriate method of review of discovery orders. Ex parte Bozeman, 420 So. 2d 89 (Ala.1982). The use of a writ of a mandamus to compel or to prohibit discovery is restricted because of the discretionary nature of a discovery order. Id. See also Ex parte Bean, 703 So. 2d 329 (Ala.1997). "Under Rule 26(b)(3), the party objecting to discovery bears the burden of establishing the elements of the work-production exception." Ex parte Garrick, 642 So. 2d 951 (Ala.1994). The mere fact that litigation does eventually ensue does not, by itself, cloak materials with the protection of the work-product privilege. Sims v. Knollwood Park Hosp., 511 So. 2d 154 (Ala.1987). "`[T]he test should be whether, in light of the nature of the document and factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'" Sims, 511 So. 2d at 157 (quoting Binks Mfg. Co. v. National Presto Industries, Inc., 709 F.2d 1109, 1119 (7th Cir.1983)). The word (and concept) because is critical. Justice Lyons's scholarly special concurrence correctly explains it. An evidentiary showing by the objecting party is not required until the parties are "at issue as to whether the *1003 document sought was, in fact, prepared in anticipation of litigation." Ex parte Garrick, 642 So. 2d at 953. The parties are at issue if the party requesting the document files a motion to compel. Id. See also Rule 34(b), Ala. R. Civ. P. Once Smith filed a motion to compel the production of the documents, he and State Farm were at issue whether the documents in the claims file, prepared before State Farm was sued, were, in fact, prepared in anticipation of litigation. Ex parte Garrick. Therefore, the burden shifted to State Farm to establish that the requested documents were generated in anticipation of litigation. In support of its claim of privilege, State Farm submitted an affidavit of the State Farm claims representative responsible for handling Smith's claim. The claims representative states, in pertinent part, as follows: "The fact that a defendant anticipates the contingency of litigation resulting from an accident or event does not automatically qualify an `in house' report as work product." Sims, 511 So. 2d at 158 (quoting Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C.1982)). The affidavit does not assert that the requested documents were prepared because of the prospect of litigation against State Farm, nor did State Farm offer any other evidence showing that the requested documents were prepared because of the prospect of litigation against State Farm. State Farm's claim of privilegeanticipation of litigationis based upon the facts that Smith obtained an attorney and that State Farm took the position that Smith planned to be involved in litigation. State Farm did not present any evidence that in May 1997 Smith planned to be involved in litigation with State Farm. Likewise, State Farm did not present any evidence that in May 1997 Smith made a claim for underinsured motorist benefits or informed State Farm that he intended to make a claim for underinsured motorist benefits. State Farm has not carried its burden of showing that it prepared the requested documents because of the prospect of litigation against it. Therefore, the trial court properly ordered production of an *1004 appropriately limited category of documents in the claims file. Consequently, because we hold the trial court properly granted Smith's limited request for production of the claims file, this case presents no abuse of discretion. Accordingly, State Farm is without a clear legal right to the order sought. Thus, State Farm is not entitled to a writ of mandamus. WRIT DENIED. COOK, BROWN, and ENGLAND, JJ., concur. HOUSTON and LYONS, JJ., concur specially. MADDOX and SEE, JJ., concur in the result. HOOPER, C.J., dissents. LYONS, Justice (concurring specially). I agree that State Farm failed to carry its burden of establishing that its claims file was prepared in "anticipation of litigation" from the moment it learned its insured had retained counsel. Where an insurer has a separate and independent contractual duty to investigate a claim, the insurer must satisfy the requirements of Rule 26(b)(3), Ala. R. Civ. P., by showing more than simply when a document was prepared. The insurer claiming a work-product privilege must show why each document was prepared and how it was used. See Harper v. Auto-Owners Insurance Co., 138 F.R.D. 655, 670 (S.D.Ind.1991), criticizing Carver v. Allstate Insurance Co., 94 F.R.D. 131 (S.D.Ga.1982), for its focus on a pivotal moment when the insurer's activity shifted from claims evaluation to preparation for litigation because that focus overlooks the requirement of Rule 26(b)(3) of a causal relationship between the impending litigation and the production or use of the documents. HOUSTON, J., concurs. HOOPER, Chief Justice (dissenting). I must respectfully dissent. Michelle Gantt, a claims specialist for the defendant State Farm Mutual Automobile Insurance Company, stated in her March 2, 1999, affidavit that she was responsible for handling the claim and the lawsuit filed by Billy J. Smith regarding his accident that occurred on May 2, 1997. She also stated the following: Normally, in the situation of an insured making a claim for uninsured- or underinsured-motorist coverage, the insured and the insurer are in an adversarial relationship.[1] State Farm has not withheld any of *1005 the claims file prepared before May 14, 1997, the date Smith hired an attorney. For what purpose does one hire an attorney? To litigate. It was common sense for Gantt to assume that all her work on the claims file from then on was done in anticipation of litigation. This Court, in Ex parte Bozeman, 420 So. 2d 89 (Ala.1982), ruled in favor of the insurer based on just such evidence as was present in this case, an affidavit prepared by the claims specialist. In Bozeman, the plaintiffs' home was damaged by blasting near their house; they filed a claim with their insurer, State Farm Fire and Casualty Company. State Farm offered no payment on that claim. The plaintiffs sued State Farm, alleging a bad-faith refusal to pay on the claim they had made pursuant to their homeowner's policy. The plaintiffs sought discovery from State Farm of three documents, two that were prepared after State Farm had learned that the plaintiffs had retained an attorney and one that was prepared after their action had been filed. The trial court denied the plaintiffs' motion to compel State Farm's production of the three documents. The plaintiffs petitioned this Court for a writ of mandamus compelling the discovery. This Court wrote: 420 So. 2d at 90. In Ex parte State Farm Mutual Automobile Insurance Co., 386 So. 2d 1133 (Ala. 1980), this Court stated: 386 So. 2d at 1136. The State Farm claims specialist had a rational basis for determining that litigation was a real possibility as of May 14, 1997. Strangely enough, Smith later sued State Farm. Gantt was accurate in her assessment of the claim. Smith did intend to litigate, and, strangely enough, he intended to have an attorney handle that litigation. I certainly would not advocate a rule by which a court concludes that whenever an insured commences litigation, the insured's claims file is considered to have been prepared in anticipation of litigation. But in the case of an adversarial relationship between the insured and the insurer, and when the insured hires an attorney, it is reasonable to believe that litigation will come. Unless the insurer makes a decision that is unreasonable or that is based on nothing that would lead a person experienced in handling claims of this nature to believe that litigation is anticipated, an affidavit like the one in this case evidencing a decision to prepare the file in anticipation of litigation should be accepted as sufficient to support such a defense to discovery. The main opinion cites no Alabama precedent for its assertion that State Farm provided insufficient evidence to support its position. It cites a case from the United States District Court for the District of Columbia.[2] After quoting directly from the affidavit, the majority is even so bold as to state that Gantt's affidavit "does not assert that the requested documents were prepared because of the prospect of litigation against State Farm." 761 So. 2d at 1003. Yet, Gantt said in that affidavit (I quote here from the main opinion's quote of that document): "From that point on [May 14, 1997, the date Smith hired an *1006 attorney], State Farm was under the impression and took the position that Mr. Smith planned to be involved in litigation regarding this accident, and the rest of any documentation from the claims file was made in anticipation of litigation." 761 So. 2d at 1003. The main opinion would require State Farm to add the words "against State Farm" in order to provide sufficient evidence. Attorney work product is attorney work product, no matter who is the target of litigation involving insurance coverage. I dissent because in this case and others like it, the insurer must wait until a lawsuit is filed to establish a date at which anything in the claims file will be considered attorney work product. I do not consider the experienced predictive powers of insurance companies, which are constantly being sued by insureds, to be that poor. Therefore, I respectfully dissent. [1] "Usually uninsured and underinsured motorist coverage gives the insurer a contract right to be in an adversarial position to the insured, for the insurer (1) can be joined as a defendant by the insured (subject to the insurer's right to elect not to participate in the trial but to be bound by the factfinder's decisions on issues of liability and damages) or (2) can intervene as a party adverse to its insured." Ex parte Fuller, 600 So. 2d 214, 216 (Ala.1992) (Houston, J., dissenting). [2] Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C.1982).

March 3, 2000

b5661eb4-81fe-49bc-8e08-802ff7be5898

Tucker v. Molden

761 So. 2d 996

1980030

Alabama

Alabama Supreme Court

761 So. 2d 996 (2000) James L. TUCKER, Sr., as administrator of the estate of James L. Tucker, deceased v. Regina S. MOLDEN. 1980030. Supreme Court of Alabama. March 3, 2000. Scott A. Powell and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for appellant. *997 D. Alan Thomas, John S. Civils, Jr., and Gregory L. Schuck of Huie, Fernambucq & Stewart, L.L.P., Birmingham, for appellee. JOHNSTONE, Justice. The plaintiff, James L. Tucker, Sr., as the administrator of the estate of his son, James L. Tucker, deceased, appeals from the summary judgment entered in favor of the defendant Regina S. Molden in this wrongful death action. No one disputes that the son Tucker was a dependentless employee killed in an accident arising out of and in the course of his employment and that Molden was his co-employee. Likewise, no one disputes that their employer was covered by the Workers' Compensation Chapter of the Code of Alabama 1975. § 25-5-1 et seq., Ala.Code 1975. The plaintiff sued the defendant for "negligently or wantonly, but not willfully," causing the plaintiff's son's death. The defendant moved for summary judgment on the ground that the exclusive remedy provisions of § 25-5-52 and § 25-5-53, Ala.Code 1975, immunize her from such claims. Specifically she argues that § 25-5-11(a) allows only an action based on willfulness and that § 25-5-52 and § 25-5-53 exclude all other damage action theories. Section 25-5-52 reads in pertinent part: (Emphasis added). Section 25-5-53 reads in pertinent part: (Emphasis added.) The plaintiff invokes the last sentence of § 25-5-11(d), which reads: (Emphasis added). The plaintiff argues that the plain meaning of this sentence makes an exception to the general rule of co-employees' immunity and allows an action for damages "without regard to this chapter" against a co-employee on theories of negligence and wantonness causing death. The plaintiff argues that this exception is explained or required by the "paltriness" of the death and burial benefits granted by, respectively, § 25-5-60(1)(g) and § 25-5-67, Ala.Code 1975, to dependentless employees killed on the job. Section 25-5-60(1)(g) provides a death benefit of $7,500.00. Section 25-5-67 grants "the expenses of burial, not exceeding in amount $3000.00." Does the last sentence of § 25-5-11(d) mean and do what the plaintiff argues? Would an interpretation contrary to the plaintiff's leave the sentence without purpose or function? What does the sentence mean and do, and what does it not mean and do? We will examine its elements and answer these questions. Again, the sentence under scrutiny reads: The clause "if the injured employee has no dependent" and the phrase "in the event of death" together specify a circumstance *998 that leaves neither an injured employee nor any dependents to be supported or compensated for disability and lost wages resulting from an on-the-job injury. Such support and compensation constitute one of the cardinal purposes of the Workers' Compensation Chapter. Ex parte McCall, 596 So. 2d 4 (Ala.1992); Yarchak v. Munford, Inc., 570 So. 2d 648 (Ala.1990), cert. denied, 500 U.S. 942, 111 S. Ct. 2237, 114 L. Ed. 2d 478 (1991). The designation "the personal representative" vests the personal representative with standing to sue. This provision is essential because the Workers' Compensation Chapter limits standing to sue to the injured employee himself or herself or his or her dependents for actions, whether for benefits under the Chapter or for tort damages, brought under all circumstances contemplated by the Chapter except that of a dependentless employee killed on the job. See, e.g., § 25-5-11 in general. More specifically, specifying standing to sue in the personal representative of a dependentless employee killed on the job is critical inasmuch as § 25-5-11(a) vests standing to sue for the wrongful death of an employee who does leave dependents in the dependents themselves and thereby makes an exception to the general rule of the Wrongful Death Statute, § 6-5-410, Code of Ala.1975, vesting standing to sue only in the personal representative. The last sentence of § 25-5-11(d) confirms that, in the unique situation of a damage action for the wrongful death of a dependentless employee, standing to sue is vested in the personal representative in accordance with the general rule of the Wrongful Death Statute. Braxton v. Dixie Electric Coop., Inc., 409 So. 2d 822 (Ala. 1982). The clause "may bring a civil action ... to recover damages" does not create a new or separate cause of action but, rather, simply allows a wrongful death action under § 6-5-410. Braxton, supra. This right is in addition to the rights to the death and burial benefits under § 25-5-60(1)(g) and § 25-5-67 respectively. The phrase "against the other party" includes "third parties"[1] and co-employees, but never the employer itself. § 25-5-11(a) and § 25-5-53. The parties before us do not disagree that the term "the other party" includes "third parties" for actions based on negligence, wantonness, or willfulness and co-employees for actions based on willfulness. The parties dispute only whether "the other party" includes co-employees for actions based on negligence or wantonness. Finally, the phrase "without regard to this chapter" serves the function of specifying or confirming that the "civil action[s]... to recover damages" meant by the sentence are such tort actions as may be available by other statute or by common law as distinguished from the actions for benefits available by the Chapter itself. See Braxton, supra. The plaintiff, however, argues that the phrase "without regard to this chapter" further means that the personal representative is not limited to an action based on willful misconduct by the exclusive remedy and co-employee immunity provisions of § 25-5-11(a), § 25-5-52, and § 25-5-53 of the Chapter. In other words, the plaintiff argues that the phrase "without regard to this chapter" allows the personal representative to bring a wrongful-death action based on negligence or wantonness against a co-employee. Standard rules of statutory construction invalidate the plaintiffs argument in this regard. All of the sections of the Chapter must be construed in pari materia. United States Steel Mining Co. v. Riddle, 627 So. 2d 455 (Ala.Civ.App. 1993); Harris v. Louisville & N.R.R., 237 Ala. 366, 186 So. 771 (1939); Coan v. State, 224 Ala. 584, 141 So. 263 (1932). Thus, the *999 last sentence of § 25-5-11(d) must be construed in pari materia with the rest of § 25-5-11 as well as § 25-5-52 and § 25-5-53. The plaintiffs interpretation directly conflicts with both § 25-5-52 and § 25-5-53, which expressly direct their restrictions and prohibitions against the "personal representative," who is addressed in the Chapter solely for his standing to sue for the wrongful death of a dependentless employee, the precise case of the plaintiff Tucker and his deceased son. Both § 25-5-52 and § 25-5-53 restrict wrongful-death actions against co-employees to the theory of willful misconduct authorized by § 25-5-11(a); and § 25-5-53 immunizes co-employees "from civil liability for all [other] causes of action." Under standard rules of statutory construction, when an expression in a statutory scheme allows two interpretations, one consistent with the remainder of the statutory scheme and the other inconsistent with the remainder of the statutory scheme, the courts will adopt the consistent interpretation and will reject the inconsistent one. B.F. Goodrich Co. v. Butler, 56 Ala.App. 635, 324 So. 2d 776 (1975); State v. Community Blood & Plasma Service, Inc., 48 Ala.App. 658, 267 So. 2d 176 (1972). As already explained, the expression "without regard to this chapter" serves two important functions entirely consistent with the remainder of the Workers' Compensation Chapter. Therefore, we must reject the plaintiffs additional interpretation, which conflicts with § 25-5-52 and § 25-5-53. Moreover, the next-ranking standard rule of statutory construction is that legislative intent determines which of conflicting provisions in a statutory scheme will prevail. Hawley Fuel Corp. v. Burgess Mining & Constr. Corp., 291 Ala. 546, 283 So. 2d 603 (1973); State v. Burchfield Bros., 211 Ala. 30, 99 So. 198 (1924). The plaintiffs interpretation of the last sentence of § 25-5-11(d), as already noted, conflicts with § 25-5-52 and § 25-5-53. Thus this Court must apply the intent expressed by the Legislature regarding the Workers' Compensation Chapter: § 25-5-14, Ala.Code 1975 (emphasis added). This inescapable legislative intent requires us to reject any interpretation of the last sentence of § 25-5-11(d) that would allow a wrongful-death action against a co-employee for negligence or wantonness as distinguished from willfulness. See also Thermal Components, Inc. v. Golden, 716 So. 2d 1166 (Ala.1998); Barron v. CNA Ins. Co., 678 So. 2d 735 (Ala. 1996); Braxton, supra. The modesty of the death and burial benefits under the Workers' Compensation Chapter does not impair the validity of the co-employees' immunity or imply legislative intent to make an exception to the immunity. The amount of the death and burial benefits is a policy decision within the prerogatives of the Legislature. The adequacy of these benefits as a quid proquo for the personal representative's loss of the right to bring a wrongful-death action against a co-employee for negligence or wantonness, and the constitutionality of the co-employee's immunity against such actions, have already been established in cases, like the plaintiffs, of the personal representatives' bringing actions for the wrongful deaths of dependentless employees against co-employees on theories of negligence or wantonness. Slagle v. Parker, 370 So. 2d 947 (Ala.1979), Yarchak, supra. Moreover, in this same context, this Court has recognized that the Legislature, in limiting the dependentless employees' death and burial benefits, intended simply to conform to the purpose of the workers' compensation scheme to provide the most compensation to those who most need itliving employees injured on the job and the dependents of employees killed on the job. Yarchak, supra; United States Steel Corp. v. Baker, 266 Ala. 538, 97 So. 2d 899 (1957). Because § 25-5-52 and § 25-5-53 immunize co-employees against wrongfuldeath actions for negligent or wanton conduct, and because the last sentence of § 25-5-11(d) does not make any exception to this immunity in the case of an action brought by the personal representative of a dependentless employee killed on the job, the trial court correctly entered summary judgment in favor of the defendant co-employee Molden. Accordingly, the judgment is affirmed. AFFIRMED. MADDOX, COOK, SEE, LYONS, and BROWN, JJ., concur. ENGLAND, J., recuses himself. [1] "Third parties" means persons and entities not affiliated with either employee or employer and not included in the protected classes specified by the Workers' Compensation Chapter.

March 3, 2000

e515cb2e-a6ea-4ec9-bbef-966a31cf2e0e

Hutchins v. DCH Regional Medical Center

770 So. 2d 49

1972266, 1972298

Alabama

Alabama Supreme Court

770 So. 2d 49 (2000) Lorene HUTCHINS, as administratrix of the estate of Marvin Hutchins, deceased v. DCH REGIONAL MEDICAL CENTER et al. DCH Healthcare Authority, Inc., d/b/a DCH Regional Medical Center v. Lorene Hutchins, as administratrix of the estate of Marvin Hutchins, deceased. 1972266 and 1972298. Supreme Court of Alabama. February 11, 2000. Rehearing Denied April 28, 2000. *50 M. Clay Alspaugh of Hogan, Smith & Alspaugh, P.C., Birmingham, for appellant/cross appellee Lorene M. Hutchins. James J. Jenkins and Bryan P. Winter of Phelps, Jenkins Gibson & Fowler, L.L.P., Tuscaloosa, for appellee/cross appellant DCH Regional Medical Center. W. Stancil Starnes, Laura H. Peck, and Sharon A. Woodard of Starnes & Atchison, L.L.P., Birmingham, for appellee H. Joseph Falgout, M.D. PER CURIAM. Lorene Hutchins, as administratrix of the estate of Marvin Hutchins, deceased, sued DCH Healthcare Authority, Inc., d/b/a DCH Regional Medical Center ("DCH"), and 13 fictitiously named defendants, alleging that the defendants had *51 provided negligent or wanton medical treatment to her husband during his hospitalization at DCH, and that the negligent or wanton medical treatment had caused his death. Specifically, she alleged that the defendants had negligently or wantonly failed to: prevent her husband from becoming infected, diagnose his infection, and treat his infection and complications. She further alleged that the defendants had failed to provide adequately trained personnel to treat her husband. She also stated claims alleging breach of contract and fraud. On May 19, 1994, the plaintiff amended her complaint to substitute Harold Joseph Falgout, M.D., in place of two fictitiously named defendants. There subsequently arose a dispute over the discoverability and admissibility of certain hospital documents and a videotape concerning the frequency with which patients at DCH had acquired hospital-borne infections. The trial judge denied the plaintiff access to some of the information she requested, holding that it was privileged and thus protected from discovery. The case was subsequently submitted to a jury, which found in favor of DCH and Dr. Falgout. The court entered a judgment in accordance with that verdict. For the reasons discussed below, we affirm the judgment insofar as it relates to Dr. Falgout, but insofar as it relates to DCH we reverse the judgment and remand for a new trial. Because of the nature of the legal issues presented by these appeals, we need not explain in detail the medical causes of Mr. Hutchins's death. However, a statement of some of the basic facts will aid the reader in understanding the reasons for our judgment. In April 1992, Marvin Hutchins was referred to Dr. Falgout by another physician because Hutchins was suffering from hemorrhoid problems that had not responded to previous treatments. Dr. Falgout examined Hutchins and recommended that a hemorrhoidectomy be performed. Hutchins agreed, and the surgery was scheduled for April 15, 1992, to be performed at DCH. On the day of the surgery, nurse Jacqueline Wilkins applied to Hutchins a solution designed to remove dirt, oil, and microbes from the skin and thereby reduce the possibility of infection. Dr. Falgout performed the surgery, which was completed without any immediately apparent complications. In the days following the surgery, however, Hutchins developed and maintained a low-grade fever. He also suffered from urinary retention, nausea, vomiting, and abdominal pain. Redness and swelling in the area of the surgery also appeared. On April 20, with the other symptoms persisting, Hutchins also began to suffer chest pain and shortness of breath. Dr. Falgout was conducting surgery that afternoon; he asked his partner, Dr. John O. Waites, to check Hutchins's progress. Dr. Waites ordered that Hutchins be treated with antibiotic medication. On the evening of April 20, Dr. Falgout checked Hutchins and found that the skin around the site of the surgery appeared to be infected. Dr. Falgout ordered treatment with antibiotics, but Hutchins nonetheless developed a serious respiratory problem and a number of other problems. Those problems eventually caused his death, which occurred on May 19, 1992. The jury returned a verdict in favor of DCH and Dr. Falgout. After the court had entered a judgment in accordance with that verdict, the plaintiff became aware that another patient of Dr. Falgout's had suffered a betahemolytic group A strep infection, the same kind of infection Hutchins had suffered from. The plaintiff moved for a new trial in part on the basis of newly discovered evidence. The trial court denied that motion. The plaintiff appealed. DCH cross-appealed. DCH cross-appeals, arguing that the trial court erred in denying its motion *52 for a judgment as a matter of law.[1] We disagree. This Court has recently held: Daniels v. East Alabama Paving, Inc., 740 So. 2d 1033 (Ala.1999). DCH argues that the plaintiff failed to present substantial evidence indicating that nurse Wilkins breached the standard of care in her preoperative preparation of the site of Hutchins's surgery. Further, DCH argues that even if nurse Wilkins did fail to meet the standard of care, the plaintiff did not present substantial evidence indicating that nurse Wilkins's treatment of Hutchins proximately caused his infection and, ultimately, his death. Deborah Baugh, a registered nurse the plaintiff called as an expert witness, testified that the appropriate standard of medical care would require that the site of Hutchins's surgery be prepared by "scrubbing" it with a Betadine (or similar) solution for a period of approximately five minutes. Next, she testified, the site should be "painted" with the same, or a similar, solution. She testified that, from her review of Hutchins's medical records, it did not appear that nurse Wilkins had completed both steps of the preparation process, because the medical records indicated that the preparation was completed in eight minutes. She testified that it would be very difficult to complete the necessary preparation in the time indicated by the medical record. Nurse Wilkins testified in her affidavit that she did perform both the "scrub" and the "paint" and that it was the "scrubbing" that she referred to in the medical record when she made the time notation. Nurse Baugh admitted that, if one accepted the affidavit testimony of nurse Wilkins, then nurse Wilkins met the standard of care. The plaintiff called Dr. Michael Kennedy to testify as an expert witness on the issue of causation. He testified: Although we recognize that this is a close case, we must apply the rule that we draw all reasonable inferences in favor of the nonmovant. Taking into account the testimony of nurse Baugh and Dr. Kennedy, we conclude that the plaintiff presented substantial evidence from which a reasonable juror could conclude that DCH, through nurse Wilkins, breached the standard of care and that Hutchins's infection and subsequent death were the proximate results of that breach of the standard of care. Accordingly, the trial judge properly denied DCH's motion for a judgment as a matter of law. The plaintiff argues that the trial court erred in denying her challenges for cause directed toward certain prospective jurors. We apply an abuse-of-discretion standard in our review of this claim. We have said before: "The trial court is vested with broad discretion in determining whether to sustain challenges for cause, and the trial court's decision will not be interfered with unless clearly erroneous." Black Belt Wood Co. v. Sessions, 514 So. 2d 1249, 1255-56 (Ala.1986). The plaintiff argues that the trial judge erred in denying her challenge for cause directed toward prospective juror R.T. That prospective juror testified that he knew Dr. and Mrs. Falgout through church: However, when questioned by Dr. Falgout's attorney, R.T. testified: When the plaintiff's counsel challenged R.T. for cause, the trial judge denied the challenge. The plaintiff argues that the trial judge erred, citing Knop v. McCain, 561 So. 2d 229 (Ala.1989), and Wood v. Woodham, 561 So. 2d 224 (Ala.1989), companion cases in which this Court addressed the standards a trial judge should apply in determining whether to grant a challenge for cause. In Knop, this Court stated: Knop, 561 So. 2d at 232. This Court also held: Id. at 234. After reviewing R.T.'s answers, we conclude that his statements indicating possible bias were ambiguous. However, given R.T.'s responses to the clarifying questions asked by Dr. Falgout's attorney, we cannot conclude that the trial judge abused his discretion in denying the challenge for cause directed toward R.T. The plaintiff also argues that the trial court erred in denying her challenges for cause directed toward prospective jurors J.B. and K.B., both of whom stated on voir dire examination that they were employed by DCH. J.B. said she did not know Dr. Falgout. K.B. said she knew him as a "passing acquaintance." K.B. also had a "passing acquaintanceship" with two persons expected to be called as witnesses. When the plaintiff challenged J.B. and K.B. for cause, the trial judge denied the challenges. The plaintiff argues that the trial court should have granted her causal challenges of J.B. and K.B. because those two jurors were employees of the defendant DCH. The plaintiff cites Kendrick v. Birmingham Southern Railroad Co., 254 Ala. 313, 48 So. 2d 320 (1950), for the proposition that a juror's employment by one of the parties is grounds for a challenge for cause. In that case, this Court held: "An employee is incompetent to serve as a juror in a cause involving the interest of the employer and is, therefore, subject to challenge for cause." 254 Ala. at 322, 48 So. 2d at 327. This Court has more recently discussed this issue in CSX Transportation, Inc. v. Dansby, 659 So. 2d 35, 39-40 (Ala.1995): (Emphasis added.) Under our rule, as quoted above from Dansby, the trial judge had no discretion to deny the plaintiff's challenge for cause directed toward J.B. and K.B., given that they were employees of the defendant DCH. Accordingly, we reverse the judgment insofar as it related to DCH and remand for a new trial. Dr. Falgout argues that even if we reverse the judgment as it relates to DCH, that fact would not require that we reverse the judgment insofar as it relates to him. We agree. See Beneficial Management Corp. of America v. Evans, 421 So. 2d 92 (Ala.1982). There was no employer-employee relationship shown between Dr. Falgout and these two jurors, and the plaintiff has shown no reason why, under the tests discussed above, it would have been an abuse of the trial judge's discretion to deny the challenges had Dr. Falgout been the only defendant. Thus, we conclude that there was no error in having J.B. and K.B. participate as jurors on the claims against him. Our reversal of the judgment as it relates to DCHbased on the denial of these challenges for causedoes not lead to a remand for a new trial of the claims against Dr. Falgout. Therefore, we must consider the remaining issues raised on the plaintiff's appeal as they relate to Dr. Falgout. We now consider the plaintiff's argument that the trial court erred in charging the jury, over her objection, on the law relating to "substantial evidence." Specifically, she argues that the trial court's charging the jury in that regard violated her constitutional right to equal protection under the law, because this Court has previously ruled, in Ex parte Gradford, 699 So. 2d 149 (Ala.1997), that it was reversible error to charge a jury on substantial evidence, and because, in medical-liability cases, the Legislature has required that the judge give such a charge. In other words, she argues that the Legislature has imposed a restriction on plaintiffs in medical-malpractice *56 cases that, under Gradford, may not be imposed on other plaintiffs. In § 6-5-548(a), Ala.Code 1975, the Legislature specifically provided that in medical-liability cases "the plaintiff shall have the burden of proving [the defendant's liability] by substantial evidence." In § 6-5-549, the Legislature provided: (Emphasis added.) As the plaintiff points out, however, in Gradford, a case that did not arise under the provisions of the Alabama Medical Liability Act, §§ 6-5-480, Ala.Code 1975, et seq., this Court held: 699 So. 2d at 150. This Court also held: 699 So. 2d at 151. In this present case, which did arise under the provisions of the Alabama Medical Liability Act, the trial judge charged the jury in accordance with § 6-5-549,[2] and the plaintiff preserved her objection to *57 the charges.[3] The question then, is whether the statute providing that a jury in a medical-malpractice case must be instructed on the "substantial-evidence rule" violates the equal-protection rights of a medical-malpractice plaintiff. We conclude that it does not. This Court has stated the test to be applied to determine whether a statute violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution: Gideon v. Alabama State Ethics Comm'n, 379 So. 2d 570, 573-74 (Ala.1980). This case involves neither a "suspect class" nor a "fundamental right," so we apply the rational-basis test to the plaintiff's equal-protection challenge. Thus, we must determine (a) whether the classification furthers a proper governmental purpose, and (b) whether the classification is rationally related to that purpose. The Legislature, in § 6-5-540, Ala.Code 1975, explicitly stated its purpose for enacting the Alabama Medical Liability Act: (Emphasis added.) We hold that the Legislature's stated purpose of "[ensuring] that quality medical services continue to be available at reasonable costs to the citizens of the State of Alabama" is a legitimate goal of state government. We next consider the second question in the equal-protection analysis outlined above, whether the Legislature's classification is rationally related to that goal. The Legislature stated in § 6-5-540 that "a crisis threatens the delivery of medical services to the people of Alabama and the health and safety of the citizens of this state are in jeopardy" and that "the increasing threat of legal actions for alleged medical injury causes and contributes to an increase in health care costs." Because in the Alabama Medical Liability Act of 1987 (see § 1, Act No. 87-189, Ala. Acts 1987), codified at § 6-5-540 the Legislature explicitly stated that it perceived a danger that legal actions were driving up the costs of health-care services, and because it stated this perceived danger in the same section in which it stated that its intent in adopting the Act was to ensure "that quality medical services continue to be available at reasonable costs," we conclude that the Legislature perceived a direct relationship between the costs of litigation in medical-malpractice cases and its goal of ensuring that Alabama citizens would have available quality health-care services at reasonable costs. Therefore, we conclude that a rational legislator could have concluded that a legislatively determined standard of proof and a legislatively prescribed instruction to the jury regarding that burden of proof would aid in achieving the Legislature's goal. Accordingly, we hold that the challenged statute does not violate the Equal Protection Clause of the United States Constitution. Does the challenged statute violate the plaintiff's right to equal protection under the Constitution of Alabama? The plaintiff argues that it does. The question whether §§ 1, 6, and 22 of Article I, Constitution of Alabama 1901, combine to guarantee the citizens of Alabama equal protection under the laws remains in dispute. See Black v. Pike County Comm'n, 360 So. 2d 303 (Ala.1978); Ex parte Jackson, 516 So. 2d 768 (Ala.1986), and Ex parte Branch, 526 So. 2d 609 (Ala.1987) (implying that those provisions do provide for equal protection); but see Ex parte Melof, 735 So. 2d 1172 (Ala.1999). In this case, however, that dispute is rendered academic. Even relying on that line of cases holding that the Alabama Constitution does provide for equal protection, we would still conclude that the statute the plaintiff challenges does not violate that constitution. The plaintiff states no reason, and we are aware of no reason, that our analysis of the plaintiff's equal-protection issue raised under the United States Constitution should not be equally applicable to her equal-protection issue raised under the Alabama Constitution. Further, we note that when this Court reviews a statute for the purposes of determining whether it violates the Alabama Constitution, we apply a presumption in favor of constitutionality and will seek to sustain the enactment of the Legislature, a coequal branch of government. Reed v. Brunson, 527 So. 2d 102 (Ala.1988). We have long followed the rule established in Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9, 18 So. 2d 810, 815 (1944): The appellant has not shown it to be "clear beyond reasonable doubt" that the challenged *60 statute violates the Alabama Constitution. Therefore, we consider our analysis stated above regarding the plaintiff's challenge based on the United States Constitution to apply equally to her challenge to § 6-5-549 based on the Alabama Constitution. See Plitt v. Griggs, 585 So. 2d 1317 (Ala.1991); Jefferson County v. Braswell, 407 So. 2d 115 (Ala.1981). The plaintiff argues that the trial judge abused his discretion in denying her access to certain information that he ruled was not discoverable. In Interrogatory 9, she requested information concerning certain kinds of infections that had occurred at DCH since January 1, 1988, including the names of all patients who had suffered the infections and the dates that those patients were hospitalized. She also requested the production of those patients' medical records and any internal hospital reports concerning those infections. DCH argued that the matters in dispute were protected by §§ 22-21-8 and 34-24-58, Ala.Code 1975, creating the so-called "quality-assurance privilege," and by the attorney-client privilege. In response, the plaintiff challenged the constitutionality of § 22-21-8. This issue is not relevant to the plaintiff's claim against Dr. Falgout; it is relevant only to the claim against DCH. Because we have already concluded that this case is to be remanded for a new trial of the claims against DCH, we need not consider this issue. Should either party take dispute with the rulings of the trial judge on discovery matters in the course of the new trial, it will be free to seek appellate review of those rulings at the appropriate time. The plaintiff argues that the trial court erred in denying her motion for a new trial of her claims against Dr. Falgout; that motion was based on a claim of newly discovered evidence. The test trial judges apply in determining whether to grant a motion for a new trial on that basis is as follows: Register Propane Gas Co. v. Whatley, 688 So. 2d 225, 226 (Ala.1996). The question whether to grant a new trial lies within the sound discretion of the trial judge and a ruling on that question will be reversed by this Court only upon a showing of an abuse of discretion. Id. Did the plaintiff exercise due diligence in an effort to learn of the information that she says she discovered after the trial had concluded? As Dr. Falgout points out, the plaintiff did not ask him in his deposition or through her interrogatories whether he had previously treated any patient who suffered from a betahemolytic group A strep infection. The plaintiff responds by saying that Dr. Falgout denied being aware of a number of infections that had occurred prior to his treatment of Hutchins and that were referred to in a June 1994 article in a Tuscaloosa newspaper. She argues that that article referred to one of Dr. Falgout's previous patients. The article does not list patients by name, but instead generally refers to a group of cases of infection. Dr. Falgout responded to the article by stating that when he treated Hutchins he was not aware of those previous cases of infection. The plaintiff argues that Dr. Falgout's answers to questions she put to him in her cross-examination on this issue were evasive and that in answering he played "medical word games." Based on what is before us, however, we cannot conclude that Dr. Falgout's testimony was untrue. When asked whether he had ever heard of any previous patients at DCH who suffered from such an infection, he answered that he had not, "unless they were [his] patients." He also testified that he had never previously treated a patient "that had betahemolytic *61 bacteremia or sepsis." Based on our review of the transcript and of the parties' arguments, we cannot conclude that Dr. Falgout's answers were untruthful, because it appears that the person discovered after the end of the trial had not been septic. Accordingly, we conclude that the trial court could have concluded that the failure to discover the existence of the former patient who had suffered an infection but had not become septic was the result of a lack of due diligence. See Pacifico v. Jackson, 562 So. 2d 174 (Ala. 1990). Thus, we conclude that it was not an abuse of discretion for the trial court to deny the plaintiffs motion for a new trial.[4] In light of the above, we reverse the judgment insofar as it was in favor of DCH and remand for a new trial on the claims against DCH. We affirm the judgment insofar as it was in favor of Dr. Falgout. 1972266AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. 1972298AFFIRMED. Part I: HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, and JOHNSTONE, JJ., concur. ENGLAND, J., recuses himself. Part II(A): HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, and JOHNSTONE, JJ., concur. ENGLAND, J., recuses himself. Part II(B): HOOPER, C.J., and COOK, LYONS, BROWN, and JOHNSTONE, JJ., concur. MADDOX, HOUSTON, and SEE, JJ., dissent. ENGLAND, J., recuses himself. Part III: HOOPER, C.J., concurs. MADDOX and SEE, JJ., concur specially. HOUSTON, COOK, LYONS, and BROWN, JJ., concur in the result. JOHNSTONE, J., dissents. ENGLAND, J., recuses himself. Part IV: HOOPER, C.J., and MADDOX, HOUSTON, COOK, LYONS, and BROWN, JJ. concur. SEE and JOHNSTONE, JJ., express no opinion. ENGLAND, J., recuses himself. Part IV: HOOPER, C.J., and MADDOX, HOUSTON, SEE, LYONS, and BROWN, JJ., concur. JOHNSTONE, J., concurs in the result. COOK, J., expresses no opinion. ENGLAND, J., recuses himself. MADDOX, Justice (concurring in Parts I, II(A), III, IV, and V; and dissenting from Part II(B)). I concur except as to Part II(B), which discusses the challenge of jurors J.B. and K.B. for cause. As to Part II(B), I dissent. With regard to the rule discussed and applied in that part of the opinion, see my special writing in CSX Transportation, Inc. v. Dansby, 659 So. 2d 35 (Ala.1995). As to Part III, rejecting the plaintiffs argument that § 6-5-549, Ala.Code 1975, is unconstitutional, I offer an additional reason why I conclude that the appellant's argument is without merit. I dissented in Ex parte Gradford, 699 So. 2d 149 (Ala. 1997), joining Justice Houston's special writing, which stated: 699 So. 2d at 154 (Houston, J., dissenting). I believed when I joined Justice Houston's *62 dissent in Gradford, and I believe now, that it is not necessarily reversible error for a trial judge to instruct a jury on substantial evidence. I would, therefore, overrule Gradford. If Gradford were overruled, there would be no basis for the appellant's equal-protection argument. HOUSTON, J., concurs. HOUSTON, Justice (concurring in Parts I, II(A), IV, and V; concurring in the result as to Part III; and dissenting as to Part II(B)). I concur in Parts I, II(A), IV, and V; I concur in the result as to Part III; and I dissent as to Part II(B). Sections 1, 6, and 22 of Article I of our present constitution, the Constitution of Alabama of 1901, do not combine to guarantee the citizens of Alabama equal protection of the laws. Ex parte Melof 735 So. 2d 1172 (Ala.1999); American Legion Post No. 57 v. Leahey, 681 So. 2d 1337, 1347-48 (Ala.1996) (Houston, J., dissenting); Smith v. Schulte, 671 So. 2d 1334, 1347-48 (Ala.1995) (Maddox, J., dissenting); Pinto v. Alabama Coalition for Equity, 662 So. 2d 894, 901-10 (Ala.1995) (Houston, J., concurring in the result); Ex parte St. Vincent's Hosp., 652 So. 2d 225, 230-31 (Ala.1994) (Houston, J., concurring specially); Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 174-78 (Ala.1991) (Houston, J., concurring in the result). I concur in Justice Maddox's special writing insofar as it addresses Part II(B). COOK, Justice (concurring as to Parts I, II(A), II(B), and IV; concurring in the result as to Part III; and expressing no opinion as to Part V). I concur in Parts I, II(A), II(B), and IV. I concur in the result as to Part III. I express no opinion as to Part V. SEE, Justice (concurring in Parts I, II(A), III, and V; dissenting from Part II(B); and expressing no opinion as to Part IV). In Part II(B) of the main opinion, a majority concludes that this Court must reverse the judgment as to DCH and remand for a new trial because the trial court denied the plaintiff's challenges for cause directed to two particular potential jurors. The potential jurors were employed by DCHone at the DCH emergency room, and the other at a DCH-owned outpatient facility in Northport. The plaintiff concedes that both potential jurors stated that they could render a fair and impartial verdict; and the plaintiff exercised two of her peremptory challenges to remove these two potential jurors from the panel. The plaintiff offers no evidence to indicate that the jury ultimately selected was not a fair and impartial one. The use of two of her peremptory challenges, therefore, is the only possible prejudice that the plaintiff suffered. To order a new trial requires the parties and the court to do again what they have already done; and to the public, the witnesses, and jurors it increases the cost and inconvenience of what has already been a costly and inconvenient process. Therefore, granting a new trial is an extreme remedy. See, e.g., Britain v. State, 518 So. 2d 198, 203 (Ala.Crim.App.1987). Absent some other showing of prejudice, the plaintiff's use of two peremptory strikes to remove potential jurors that the trial court should have removed for cause does not warrant the extreme remedy of granting a new trial. See Wood v. Woodham, 561 So. 2d 224, 228 (Ala.1989) (Maddox, J., dissenting) (stating that "there has been no showing of any unfairness or prejudice towards the plaintiff that would taint the jury's verdict," and that a new trial should not be granted "where the only possible prejudice shown is that a party may have had to use a peremptory strike to eliminate a juror that that party may not have wanted"). For this reason, I dissent from Part II(B). Part III of the main opinion states that the statutory requirement that the court *63 give a "substantial-evidence" instruction (see the Alabama Medical Liability Act, Ala.Code 1975, § 6-5-549) is not unconstitutional. As Justice Houston stated in his dissenting opinion in Ex parte Gradford, 699 So. 2d 149, 153 (Ala.1997) (Houston, J., dissenting), in which I concurred, to give a "substantial-evidence" instruction when such an instruction is not mandated by statute is error, but not necessarily reversible error. Certainly it is not reversible error to give such an instruction that is mandated by statute. JOHNSTONE, Justice (concurring in Parts I, II(A), and II(B); concurring in the result of Part V; dissenting from Part III; and expressing no opinion as to Part IV). I concur in Parts I and II(A) and (B). I dissent from Part III. I express no opinion on Part IV. Finally, I concur in the result of Part V because the newly discovered evidence is not such that we can hold that the trial judge abused his discretion in not finding that the newly discovered evidence probably would cause the jury to return a verdict in favor of the plaintiff against the doctor in a new trial. See Campbell v. Williams, 638 So. 2d 804, 814 (Ala.1994). [1] See Rule 50, Ala. R. Civ. P., renaming a motion for a directed verdict a "motion for judgment as a matter of law." [2] The trial judge charged the jury as follows: "Now, remember, I told you that that is what we call a medical-malpractice case, and I told you that in those cases what the plaintiff's burden of proof is and that the plaintiff must prove by substantial evidence: one, the applicable standard of care; two, a breach of that standard of care; and three, that the plaintiff suffered damages as a result of the alleged breach." (R. at 1564; emphasis added.) "If you are reasonably satisfied from the evidence in this case that both of the defendants were negligent and that that negligence concurred and combined to proximately cause the injuries and damages claimed by the plaintiff, then each defendant is liable to the plaintiff. ... ". . . . "Now, in giving you the charge regarding concurring and combining negligence of the defendants, I said if you are reasonably satisfied. Well, if you are reasonably satisfied by substantial evidence of the negligence of the breach of the applicable standard of care, then you can find a claim find for the plaintiff against both defendants." (R. at 1566-67; emphasis added.) With regard to the claim against Dr. Falgout, the trial judge charged: "As I said before in respondingin giving you the law with respect to DCH, the burden is on the plaintiff to prove to you by substantial evidence the truthfulness of all the elements of her claim before she would be entitled to recover against defendant Dr. Falgout. If you are reasonably satisfied that the plaintiff has met this burden of proof, then the plaintiff is entitled to recover in this case. If you are not reasonably satisfied by substantial evidence of the truthfulness of each element of the plaintiff's claim, then the plaintiff is not entitled to recover. "Now, as I'veyou know, I've already previously stated to you what the definition of substantial evidence is, so I won't give you that definition again. But let me say this to you: Part of the plaintiff's burden of proof is to prove by substantial evidence that the defendant failed to exercise such reasonable skill, diligence, and care as other similarly situated physicians in the same general line of practice ordinarily have and exercise in like cases. ". . . . "If you are not reasonably satisfied by substantial evidence of the truthfulness of each element of plaintiff's claim, then you need not consider the question of damages. On the other hand, if you are reasonably satisfied by substantial evidence of the truthfulness of each element of plaintiff's claim, then you should consider the question of damages." (R. 1575-76; emphasis added.) "To find liability ... [y]ou must be reasonably satisfied by substantial evidence that the negligence complained of by defendants probably caused the death of Marvin Hutchins in this case. ". . . . "Now ladies and gentlemen, I'm going to give you the law with respect to damages in this case. Now ladies and gentlemen, you will recall that I told you that if you are not reasonably satisfied by substantial evidence of the truthfulness of each element of the plaintiff's claim, then you need not consider the question of damages. On the other hand, if you are reasonably satisfied by substantial evidence of the truthfulness of each element of plaintiff's claim, then you should consider the question of damages, and I'm not going to give you the law with respect to that." (R. at 1579-80; emphasis added.) "If after a full and fair consideration of all the evidence you are reasonably satisfied by substantial evidence therefrom that the plaintiff is entitled to recover against all defendants, then the form of your verdict should be as follows.... "On the other hand, if after a full and fair consideration of all the evidence you are not reasonably satisfied by substantial evidence therefrom that the plaintiff is entitled to recover against all defendants, then the form of your verdict should be as follows . . . "On the other hand, if after a full and fair consideration of all the evidence you are not reasonably satisfied by substantial evidence therefrom that the plaintiff is entitled to recover from one of the defendants but not entitled to recover against the other defendant, then you should use the form of verdict which reads as follows ... "If after a full and fair consideration of all the evidence you are not reasonably satisfied by substantial evidence that the plaintiff is entitled to recover against any of the defendants, then you should use the form of verdict which reads as follows.... (R. at 1583-84; emphasis added.) In the portion of his instructions to the jury concerning the claims against DCH, the trial judge defined "substantial evidence" as follows: "Substantial evidence means that character of evidence which would convince an unprejudiced thinking mind of the truth of the facts [toward] which the evidence is directed." (R. at 1570; emphasis added.) [3] Immediately after the trial judge concluded his instructions and dismissed the jury for a recess, he asked the attorneys to respond to his jury charges. The plaintiff's counsel stated: "Additionally, we except to those portions of the Court's instruction dealing with substantial evidence as being the burden of proof on the plaintiff, and we would readopt our motion dealing with the constitutionality of the statute we have previously argued." (R. at 1588.) The plaintiff's counsel had previously raised this same objection by an oral motion in limine and again at a conference at which the parties discussed proposed jury charges with the trial judge. At the charge conference, the plaintiff's counsel stated: "We would like [to say] again for the record, a number of these charges that the Court will give deal with the burden of proof being by substantial evidence.... I filed a formal motion to challenge the constitutionality of these particular statutes based on the [Ex parte Gradford] opinion, 699 So. 2d 149." The trial judge responded: "The Court is going to give the pattern [jury instruction], which requires the use of proof by substantial evidence. So the request is denied but the exception is duly noted." (R. at 1461.) The plaintiff also had appropriately served notice upon the attorney general, pursuant to § 6-6-227, Ala.Code 1975, of her challenge to the constitutionality of § 6-5-549. [4] Because we reach this conclusion, we need not address the other elements of the newtrial test.

February 11, 2000

63966ea7-cee5-47a3-b2aa-65746cfac702

Ex Parte Alabama Dept. of Transp.

764 So. 2d 1263

1981916

Alabama

Alabama Supreme Court

764 So. 2d 1263 (2000) Ex parte ALABAMA DEPARTMENT OF TRANSPORTATION et al. (Re Blue Ridge Sand and Gravel, Inc., et al. v. Alabama Department of Transportation et al.) 1981916. Supreme Court of Alabama. February 25, 2000. *1265 Jim R. Ippolito, Jr., chief counsel; and Stacey S. Houston, asst. counsel, Alabama Department of Transportation. J. Flint Liddon of Johnson, Liddon, Bear & Tuggle, Birmingham, for respondents. MADDOX, Justice. The question presented by this petition for the writ of mandamus is whether the defendants in a lawsuit pending in the Montgomery Circuit Courtthe Alabama Department of Transportation ("ALDOT") and several of its officers and employees are immune from liability under the provisions of Art. I, § 14, of the Constitution of Alabama 1901. In the petition, ALDOT and its officers and employees ask us to direct the trial court to grant their collective motions for summary judgment based on their claims of sovereign immunity. After considering the briefs of the parties, we grant the writ of mandamus. This lawsuit, filed by Blue Ridge Sand and Gravel, Inc., and its owner, Bob Estes (hereinafter both are usually referred to as "Blue Ridge"), arose out of ALDOT's amendment of standards and specifications[1] pertaining to the use of gravel in hot-asphalt mixes for roads and bridge superstructures. These amended specifications require that mixes used for these purposes contain gravel having a bulk specific gravity greater than 2.550. The amendments made Blue Ridge's gravel, called "chert," unsuitable because it has a bulk specific gravity less than that set by the amended specifications. Documents filed in support of the mandamus petition show that ALDOT adopted the new specifications after testing of road surfaces revealed a series of problems with roads constructed with materials permitted by the old specifications. It is undisputed that ALDOT's adoption of new specifications adversely affected the market for chert gravel and thereby caused Blue Ridge to sustain large losses. Blue Ridge sued ALDOT and the named officers and employees, alleging intentional *1266 interference with a business or contractual relationship; intentional misrepresentation; suppression; and civil conspiracy. Because this petition arises out of the trial court's denial of the defendants' motions for summary judgment, our review is guided by Rule 56, Ala. R. Civ. P. Under that rule, a party moving for a summary judgment is entitled to such a judgment if that party meets the following two-tiered standard: 1) There must be no genuine issue of material fact and 2) the movant must be entitled to a judgment as a matter of law. Rule 56(c); Carpenter v. Davis, 688 So. 2d 256, 258 (Ala.1997). Furthermore, this Court must view all the evidence in a light most favorable to the nonmovant and must resolve all reasonable questions from the evidence in favor of the nonmovant. Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So. 2d 256 (Ala. 1991); see Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990). The movant must make a prima facie showing that there are no genuine issues of material fact and that he is entitled to a judgment as a matter of law. Fincher, 583 So. 2d at 257. If the movant makes this showing, the burden then shifts to the nonmovant to rebut the movant's prima facie showing by presenting "substantial evidence" creating a genuine issue of material fact. Id. "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., 547 So. 2d 870, 871 (Ala. 1989). ALDOT's petition indicates that ALDOT and the Federal Highway Administration ("FHWA") generally oversee the construction and maintenance of Alabama's roads. ALDOT, which uses Federal highway funds, must comply with Federal regulations regarding the design and construction of roadways. The FHWA manages the disbursement of these funds and is responsible for ensuring that State agencies using them comply with Federal law and regulations. See generally, Title 23, U.S.C., and Title 23, C.F.R. Federal regulations dictate that states design and employ pavements that will accommodate predicted traffic flows in a safe and economical manner. In furtherance of this policy, the FHWA requires State highway authorities, including ALDOT, to conduct skid tests on various road surfaces and to submit the results for review. These skid tests measure the friction between a tire and the road surface and aid in identifying roadways that may be unsafe. During the 1980s, skid tests performed on an assortment of Alabama's roads revealed that many of the surfaces were unsafe and had deteriorated more rapidly than expected. ALDOT investigated these roads and discovered that their surfaces had been repaved with asphalt containing chert gravel as the coarse aggregate. At the time these roads were repaved, ALDOT's specifications required only that coarse aggregates have a maximum moisture absorption level of 5%. ALDOT launched further investigations to determine why projects meeting specifications had failed. In June 1993, Dr. Frazier Parker, Jr., of the Highway Research Center at Auburn University, conducted a study of asphalt surfaces and tested the endurance and performance of potential mixes. His report concluded that stripping, a phenomenon that occurs when the asphalt separates from the coarse aggregate, resulted from the presence of water in the asphalt mix; the water caused the aggregate and the asphalt to lose adhesion. In 1994, ALDOT first started to consider imposing a minimum bulk specific gravity of 2.550 on coarse aggregate by implementing such a requirement on individual contracts not pertaining to city or county road-construction projects. Blue Ridge did not oppose the implementation of the *1267 individual restrictions, because of the volume of business it enjoyed with projects that were not covered by the restriction. Nevertheless, ALDOT continued to research the use of chert gravel in hot-mix asphalt. It formed the Chert Study Task Force in May 1994 to study the use of chert gravel and its possible moisture retention in road surfaces. In December of that year, the Task Force issued its report, concluding that Alabama road surfaces prematurely deteriorated because of internal moisture, which is an inherent characteristic of chert gravel. Consequently, ALDOT began to study the formulation and adoption of new specifications to eliminate the moisture problem. In April 1995, the Materials and Tests Bureau, a division within ALDOT, recommended the promulgation of a new specification for a more stringent gravel-absorption level of 2%. ALDOT adopted this new specification in May 1996, after obtaining the approval of the FHWA. In March 1996, Bob Estes, the owner of Blue Ridge, learned that ALDOT had been considering expanding the implementation of the 2.550 bulk-specific-gravity minimum requirement to all Department road projects. Estes became concerned about the implications of this proposed rule, because Blue Ridge derived most of its revenue from its subcontracts with road-construction companies that had contracted with ALDOT to build roads.[2] Estes was concerned that the blanket implementation of the new bulk-specific-gravity requirement would destroy the market for chert gravel and would thereby drive Blue Ridge out of business. After hearing that ALDOT specifications might change, Estes immediately requested a meeting with ALDOT officials, including each of the individual defendants. He says he asked for the reasons behind the possible change in the specifications and was told that the new specification was "picked out of the air to keep [chert] gravel out of roadways." Estes told the officials that the requirement would be fatal to Blue Ridge's business. Estes says that at the conclusion of the meeting, Jimmy Butts, the director of ALDOT, told him that ALDOT would continue to use chert gravel for road projects scheduled for the upcoming 1997 bidding season if Blue Ridge crushed its chert gravel to a certain size. After the meeting, ALDOT published its "Approved Source List," which contained an amendment allowing Blue Ridge to supply chert gravel for use in hot-mix asphalt if it was crushed to the specified size. This list went unchanged for 10 months after Estes had met with ALDOT officials. Estes says that he believed ALDOT would continue to allow the use of chert gravel and that, based on that belief, Blue Ridge borrowed and spent $1.2 million to prepare to meet its potential obligations to construction companies that normally contracted with Blue Ridge for aggregate material. Meanwhile, ALDOT continued with its research regarding pavement failures involving chert gravel, but also continued with its plans for that year for road construction using the 2% moisture-standard specification promulgated in 1996. ALDOT began a resurfacing project on U.S. Highway 72 in August 1996, using in that project chert gravel meeting the 2% moisture standard. This material was supplied by Blue Ridge. Six months after the project was completed, James Brown, an ALDOT engineer, noticed failures in the road surface. ALDOT, at substantial cost, removed and replaced the materials that had caused the failure. After ALDOT had discovered the failures in the Highway 72 project, several ALDOT employees, including Larry Lockett, Ray Bass, James Brown, Norris Killen (all of whom Blue Ridge named as defendants in its lawsuit), and two others not named in this action, toured North Alabama *1268 highway projects. After they hade made that tour, ALDOT, in March 1997, adopted new specifications that eliminated chert gravel from hot-asphalt mixes on State highway projects; it did so on the recommendations of Bass, Lockett, and Butts. These men based their recommendations on observations and extensive research conducted by other individual defendants, who were employed by ALDOT at that time. The new specifications adopted the previously considered bulk-specific-gravity requirement of 2.550; the adoption of this new standard effectively excluded chert gravel. Overall, seven suppliers of gravel, in addition to Blue Ridge, were affected by that decision. This Court normally will not review, on a mandamus petition, issues raised by a summary-judgment motion. However, this Court has made exceptions to that rule for cases involving questions of sovereign immunity, as this case does. See Ex parte Purvis, 689 So. 2d 794, 795 (Ala.1996); see also Ex parte Davis, 721 So. 2d 685, 689 (Ala.1998). "Mandamus is an extraordinary remedy that will not be granted absent a clear showing of a right to relief." Ex parte Sekeres, 646 So. 2d 640, 642 (Ala.1994). Blue Ridge concedes that the individual defendants were engaged in the performance of discretionary duties. Consequently, the issue before us turns on the sufficiency of Blue Ridge's efforts to assert claims that fall under the "intentional-acts" exception to the grant of immunity. On public-policy grounds, we have been willing to provide interlocutory review, on a mandamus petition, in a case where the trial court denied a summary-judgment motion based on a defendant's claim of discretionary-function immunity. The same public-policy considerations apply here as well. If we did not provide that review, then the defense of immunity would be incomplete; a trial and appeal would be necessary to sustain a defendant's immunity. The immunity claimed by ALDOT and the other defendants is derived from Article I, § 14, of the Alabama Constitution of 1901, which states "[t]hat the State of Alabama shall never be made a defendant in any court of law or equity." Under this section, "[t]he State and its agencies have absolute immunity from suit in any court." Mitchell v. Davis, 598 So. 2d 801, 806 (Ala.1992). ALDOT is clearly a State agency, and, as such, is immune from suit. See generally Ex parte Kelley, 739 So. 2d 1095 (Ala.1999). Therefore, Blue Ridge's claims against it are barred by the doctrine of sovereign immunity. This doctrine also applies to State officers and employees, who enjoy immunity from an action filed against them in either their official or individual capacity if the action is, in substance, one against the State. Mitchell, 598 So. 2d at 806. The immunity enjoyed by State officers and employees is not absolute, however, and, as we observed in Phillips v. Thomas, 555 So. 2d 81, 83 (Ala.1989), the protective cloak of immunity sheltering these individuals from tort liability is not impenetrable. For example, § 14 sovereign immunity does not protect State officers and employees under circumstances where a plaintiff alleges that they acted "willfully, maliciously, illegally, fraudulently, in bad faith, beyond [their] authority, or under a mistaken interpretation of the law," Phillips, 555 So. 2d at 83, nor does it protect them from "a suit to compel the performance of a legal duty, a suit to enjoin the enforcement of an unconstitutional law, a suit to compel performance of a ministerial act, or a suit brought under the Declaratory Judgments Act." Mitchell, 598 So. 2d at 806. In order to claim the benefits of sovereign immunity, a State officer or employee bears the burden of showing that the plaintiff's claims arise from the officer or employee's performance of a discretionary duty on behalf of the State. Ex parte Davis, 721 So. 2d at 689. Upon such a *1269 showing, the burden shifts to the plaintiff, who must show that the officer or employee acted fraudulently, willfully, maliciously, or in bad faith. Id. As previously noted, Blue Ridge concedes that its claims arise from the defendants' performance of discretionary duties; therefore, we will consider only the question whether there is a genuine issue of material fact as to whether the officers and employees of ALDOT named as defendants engaged in fraudulent, willful, malicious, or bad-faith conduct regarding each of the three claims. The four claims alleged by Blue Ridge include misrepresentation, suppression, intentional interference with a contract or business relationship, and civil conspiracy. We will address the claims in that order. The plaintiffs' first claim is fraudulent misrepresentation. This cause of action involves 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), overruled on other grounds by State Farm Fire & Cas. Co. v. Owen, 729 So. 2d 834 (Ala.1998). We have held that "`[i]n order for promises or opinions to constitute fraudulent misrepresentations, there must have been at the time the representations were made an intention not to do the act promised, and such promise or opinion must have been given with intent to deceive.'" Army Aviation Ctr. Fed. Credit Union v. Poston, 460 So. 2d 139, 143 (Ala.1984) (quoting Clanton v. Bains Oil Co., 417 So. 2d 149, 151 (Ala. 1982)). Blue Ridge ultimately bases this claim on representations made by ALDOT personnel at the March 20, 1996, meeting. Specifically, it alleges that Jimmy Butts told Estes that ALDOT would not adopt a bulk-specific-gravity specification and that ALDOT would allow Blue Ridge to continue to supply State contractors with chert gravel for road construction projects for the upcoming year, provided it was crushed to a certain size. According to Estes's deposition, these statements were made as part of a single conversation. Given the context of that conversation, the promise by ALDOT officials and employees to delay the implementation of the new specification clearly referred only to the upcoming year. Blue Ridge did not produce substantial evidence suggesting that the alleged promises were made with the intention to deceive, or even that they were unfulfilled. Depositions and ALDOT internal memoranda indicate that at the time of the meeting with Estes, ALDOT had not yet decided to implement a bulk-specific-gravity requirement and that ALDOT was only considering such a requirement. The decision to implement the new specifications was not made until February 1997, nearly one year after Blue Ridge alleges the promise was made; therefore, the officers and employees of ALDOT were entitled to a summary judgment on the misrepresentation claim. Blue Ridge also alleged that, at the March 20, 1996, meeting, the individual defendants fraudulently suppressed an intention to amend ALDOT specifications in order to exclude the use of chert gravel in State road construction. The undisputed evidence indicates, however, that at the time of the meeting the adoption of new specifications banning the use of chert gravel was still being considered. The only testing ALDOT had conducted at that time involved moisture limitations that allowed the use of chert gravel to continue, a fact demonstrated by Butts's pledge regarding the continued use of chert gravel for that same year of road construction. The testing and studies conducted during the course of that year regarding chert demonstrate that ALDOT officials were deliberating whether to disallow the use of *1270 chert in State road-construction projects. When Estes met with ALDOT personnel, the defendants had not yet formed the previously mentioned intention that Estes and Blue Ridge argue they should have disclosed. Consequently, the defendants were entitled to a summary judgment on the suppression claim as well. Blue Ridge also claims that the defendants intentionally interfered with contractual and business relations when they amended ALDOT specifications to exclude chert gravel. The elements of this cause of action include: "(1) The existence of a contract or business relation; (2) defendant's knowledge of the contract or business relation; (3) intentional interference by the defendant with the contract or business relation; and (4) damage to the plaintiff as a result of [the] defendant's interference." Lowder Realty, Inc. v. Odom, 495 So. 2d 23, 25 (Ala.1986), overruled on other grounds by State Farm Fire & Cas. Co. v. Owen, 729 So. 2d 834 (Ala.1998). Defining this cause of action to apply to a "business relation" as well as a "contractual relation" allows a plaintiff a remedy in the situation where a defendant has intentionally interfered with a prospective contract as well when he has interfered with an existing contract. See Restatement (Second) of Torts, § 766B cmt. b (1979). This rule has always been justified by the policy that "protection is appropriate against improper interference with reasonable expectancies of commercial relations even when an existing contract is lacking." Restatement, § 766 cmt. c (1979). The defendants argue that when ALDOT implemented the bulk-specific-gravity specification, Blue Ridge did not have a reasonable expectancy of the formation of a contract for it to supply gravel that would not have met the new requirement. We agree. Blue Ridge's contracts for supplying chert gravel depended on the needs of the general contractors with which it did business. The undisputed evidence suggests that, when ALDOT amended its specifications to effectively exclude the use of chert gravel on Alabama roads, the State had not awarded any road-construction contracts to any general contractor that had relied on Blue Ridge's bid as a subcontractor. The evidence in support of the motions for summary judgment shows that, typically, if the State awards a contract to a general contractor that has not relied on a bid by Blue Ridge, then that general contractor would not need Blue Ridge to supply materials. Consequently, the rise and fall of Blue Ridge's fortunes as a subcontractor correlate with those of its typical general contractors as they compete for State road-construction projects. As a subcontractor, Blue Ridge could not reasonably have expected that its chert gravel would have been needed by a general contractor that had not yet been awarded the primary contract, even if that contractor had prior business with the State. Blue Ridge relies on Spring Hill Lighting & Supply Co. v. Square D Co., 662 So. 2d 1141 (Ala.1995), to support the trial court's denial of a summary judgment. That case is distinguishable from this present case. In that case, Spring Hill was a supplier of electrical equipment; it sued an employee of the Alabama State Docks and other defendants, alleging intentional interference with business relations because of the adoption of certain specifications that destroyed the eligibility of all subcontractors except one. Admittedly, this Court reversed the defendants' summary judgment in that case,[3] but the critical difference between that case and this one is the maturity of the business relationship. In the Spring Hill case, the Alabama State Docks had already accepted the general contractor's bid, which incorporated Spring Hill's bid, when the alleged *1271 interference occurred. Id. at 1143. As a result, Spring Hill had a legitimate expectancy of the formation of a contract before the alleged tortious act occurred. Therefore, the Spring Hill case is inapposite. The defendants were entitled to a summary judgment on Blue Ridge's claim alleging tortious interference with a business or contractual relationship. The final claim alleged by Blue Ridge is civil conspiracy. It is well established that "liability for civil conspiracy rests upon the existence of an underlying wrong and [that] if the underlying wrong provides no cause of action, then neither does the conspiracy." Jones v. BP Oil Co., 632 So. 2d 435, 439 (Ala.1993). Because Blue Ridge has no actionable conspiracy claim, the defendants were entitled to a summary judgment on this claim. ALDOT had immunity and the defendant officers and employees of ALDOT are also entitled to immunity, on the ground that plaintiffs Blue Ridge and Estes presented no evidence creating a genuine issue of material fact on the question whether the defendant officers and employees acted willfully, fraudulently, maliciously, or in bad faith. Consequently, we grant the petition for the writ of mandamus. The trial court is directed to grant the defendants' motions for summary judgment. WRIT GRANTED. HOOPER, C.J., and HOUSTON, COOK, SEE, LYONS, BROWN, and ENGLAND, JJ., concur JOHNSTONE, J., dissents. JOHNSTONE, Justice (dissenting). While I concur with the majority in reversing the trial court on its denial of the motion for summary judgment filed by the Department of Transportation, I dissent from the reversal of the denial of the individual defendants' motion for summary judgment. I dissent because the main opinion violates clear and settled principles of law by conducting this interlocutory review of the merits of a motion for summary judgment at the instance of individual defendants who have invalidly invoked qualified immunity. Qualified immunity bars only claims for a state employee's negligence in the performance of a discretionary function. Phillips v. Thomas, 555 So. 2d 81 (Ala. 1989); Barnes v. Dale, 530 So. 2d 770 (Ala. 1988); and DeStafney v. University of Alabama, 413 So. 2d 391 (Ala.1981). The individual defendants presently before us are not sued for negligence. They are sued only for intentional misconduct and willful fraud. The plaintiffs have voluntarily dismissed all other theories. Qualified immunity cannot bar a claim for intentional misconduct or willful fraud. Phillips, supra; Barnes, supra; and Unzicker v. State, 346 So. 2d 931, 933 (Ala. 1977) (holding that the trial court erred by granting summary judgment grounded on immunity in favor of state employees sued on the theories that they "acted fraudulently, in bad faith, beyond their authority, or under a mistaken interpretation of the law"). The general rule in Alabama is that the appellate courts will not review a denial of a motion for summary judgment. Alabama Processing Co. v. Utilities Bd. of the Town of Citronelle, 527 So. 2d 690 (Ala. 1988); Rule 54(b), Ala. R. Civ. P. The reasons for the rule are judicial economy and a balance of the conflicting interests of the opposing parties. One exception to this rule is permissive appeal under Rule 5, Ala. R.App. P., not invoked in the case now before us. The only other exception is that we will, on petition for writ of mandamus, review the validity of an assertion of immunity rejected by a trial court in denying a motion for summary judgment. Ex parte Davis, 721 So. 2d 685 (Ala. 1998); Ex parte Purvis, 689 So. 2d 794 (Ala.1996). *1272 This issue turns entirely on the presence or absence of the essential elements of immunity. It does not in any way involve the merits of the claims asserted by the plaintiff. Lassiter v. Alabama A & M Univ. Bd. of Trustees, 28 F.3d 1146, 1151 (11th Cir.1994) (en banc) ("A decision on qualified immunity is separate and distinct from the merits of the case."). The only elements of immunity are (1) the status of the defendant and (2) the theory of the claim. See Ex parte Alabama Dep't of Forensic Sciences, 709 So. 2d 455 (Ala.1997); Phillips, supra; and DeStafney, supra. For instance, a defendant with (1) the status of a state employee performing a discretionary function in (2) an action alleging a theory of negligence, would be immune. Ex parte Alabama Dep't of Forensic Sciences, supra; Nance v. Matthews, 622 So. 2d 297 (Ala.1993); and White v. Birchfield, 582 So. 2d 1085 (Ala.1991). A defendant's innocence of the gravamen of the claim is not an essential element of immunity, which bars claims against the guilty as well as against the innocent. Thus, no defendant need show innocence to enjoy the bar, and no showing of guilt will defeat the bar. See White v. Birchfield, 582 So. 2d at 1087 (a deputy sheriff was immune from a claim that he injured an arrestee-passenger in his patrol car by driving it at an excessive rate of speed and bouncing the arrestee around inside the car). See also Lassiter, 28 F.3d at 1150 ("Immunity contemplates exemption from liability that would otherwise exist on the merits"); and 67 C.J.S. Officers Liabilities for Acts or Omissions § 206 (1978) ("The doctrine of official immunity does not simply protect against ultimate liability, but halts the inquiry at the threshold of the question as soon as it is established that matters complained of arose as a result of defendant's actions in the course of his official duties"). Rather, if both of the two essential elements status and theorybe established, the defendant is immune and the bar is effective. Phillips, supra; Nance, supra; and White, supra. Conversely, if either of the two essential elements be missing, the defendant is not immune and the bar is not effective. DeStafney, supra (a University of Alabama daycare worker sued on the theory that she negligently injured a three-year-old boy lacked immunity because the worker was not performing a discretionary function when the injury occurred); Milton v. Espey, 356 So. 2d 1201 (Ala.1978) (the director of the University of Alabama Activity Center who performed a discretionary function in negotiating an employment contract with Milton for the position of assistant director of the center was immune from a claim for negligence but was not immune from a claim for fraudulent misrepresentation in the course of the negotiations); and Unzicker, supra (although the Governor and other state officials were performing a discretionary function in negotiating contracts involving the use of property in which the State had a definite right or interest, they were not immune from a property owner's claims that they "acted fraudulently, in bad faith, beyond their authority, or under a mistaken interpretation of the law"). If a defendant is not immune, the defendant must defend the claim the same way all other non-immune defendants must defend. Otherwise, any defendant could achieve interlocutory scrutiny of the merits of the plaintiff's claim by insisting on a spurious assertion of immunity, as the individual defendants before us have done. [1] §§ 801.01(a), 801.03(a), and 802.06, of the Alabama Standard Specifications, 1992 edition, and supplemental specification 4-92(2). [2] Blue Ridge conducted business by supplying the State's road-construction contractors with chert gravel and sand for them to use as a coarse aggregate; a coarse aggregate is necessary to bind the tar. [3] Spring Hill Lighting & Supply Co., 662 So. 2d at 1151.

February 25, 2000

df3eac86-4055-4dd8-babe-98f270e45975

Callens v. Jefferson County Nursing Home

769 So. 2d 273

1980323

Alabama

Alabama Supreme Court

769 So. 2d 273 (2000) Bettye CALLENS, individually and as administrator of the estate of Julia Presley, deceased v. JEFFERSON COUNTY NURSING HOME et al. 1980323. Supreme Court of Alabama. February 11, 2000. Rehearing Denied April 28, 2000. *275 Rhonda Marie of Gaiser & Associates, P.C., Birmingham, for appellant. Jasper P. Juliano and Dorothy A. Powell of Parsons, Lee & Juliano, P.C., Birmingham, for appellees Jefferson County Nursing Home, Jefferson County, and Jeff Germany. LYONS, Justice. Bettye Callens, individually and as the administrator of the estate of her mother, Julia Presley, appeals a judgment dismissing her amended complaint and a summary judgment (as to her original complaint) in favor of the defendants Jefferson County Nursing Home ("JCNH"); Jefferson County; and the Jefferson County Commission and its Commissioners. We affirm in part, reverse in part, and remand. From February 1992 through April 4, 1996, Presley was a resident at JCNH, a nursing home facility owned and operated by Jefferson County. Callens claims that, when Presley was admitted, JCNH contracted to provide care and treatment for Presley. Callens also alleges that, from September 1995 to March 1996, she made numerous complaints to JCNH, the Jefferson County Commission, and the Alabama Department of Public Health ("DPH") regarding the services and treatment Presley was receiving at JCNH and regarding the health and safety conditions at JCNH. These complaints included the complaint that her mother was living in unsanitary conditions (for example, that she was occupying an ant-infested bed); that her mother *276 was frequently dressed in unclean and soiled clothing; and that JCNH was not carefully supervising her mother. After Callens made her complaints, the DPH investigated JCNH, served JCNH and Jefferson County with a notice of the deficiencies at JCNH, and asked them to submit a plan of correction. On December 11, 1995, while JCNH employees were attempting to insert a Foley catheter, Presley suffered a fracture to her right hip and her right and left pubic bones. Callens alleges that the fractures were caused by negligence on the part of JCNH employees while they were restraining Presley in their attempt to insert the catheter. The nurse's notes regarding the incident indicate that several JCNH employees were restraining Presley and that the employee holding Presley's right leg bent it toward the head of Presley's bed until her leg popped audibly. Callens alleges that this incident caused Presley to have surgery on her right hip, on February 16, 1996. Callens also alleges that JCNH employees intentionally withheld from her information about this incident, and that, when she asked JCNH employees about her mother's injury, they told her that Presley herself had somehow injured her knee. On April 2, 1996, Callens, as Presley's legal guardian, filed a notice of claim with the Jefferson County Commission regarding Presley's December 11, 1995, injury.[1] On April 4, 1996, Presley experienced a fracture to her left hip and, on April 8, 1996, had surgery to replace her left hip. After this surgery, Presley's doctors released her from the hospital to a different nursing home in Jefferson County, where she resided until she died on May 9, 1996. On June 17, 1997, Callens, individually and as personal representative of Presley's estate, sued JCNH; Jefferson County; the Jefferson County Commission and its Commissioners;[2] Augmentation, Inc., a corporation that contracts to supply nurses to work at nursing homes and hospitals; and Steve Cox, who the plaintiff alleged to be an employee of either JCNH or Augmentation. Callens, in her representative capacity, claimed damages for an alleged wrongful death; in both her individual and representative capacities, she alleged, and sought damages for, a civil conspiracy; in her individual capacity she claimed damages for breach of an alleged contract between her and JCNH; and, in her individual capacity she alleged, and sought damages for, the tort of outrage. On June 18, 1998, Callens filed an amended complaint stating claims, made in her representative capacity, alleging (1) personal injury to Presley prior to her death and (2) negligent hiring, training, and supervision on the part of JCNH and Augmentation, Inc., which negligent acts she alleged caused personal injury to Presley prior to her death. The trial court dismissed Callens's amended complaint, stating: After dismissing the amended complaint, the court entered a summary judgment in favor of all defendants on the claims asserted in the original complaint. Callens appeals the trial court's dismissal of her amended complaint and the summary judgment for JCNH, Jefferson County, and its Commission and Commissioners entered on her original complaint. *277 Callens does not appeal as to her claims against Commissioner Jeff Germany (see note 2), Augmentation, and Cox. The defendants involved in this appeal (JCNH and Jefferson County and its Commission and Commissioners) argue that the personal-injury claims are barred because the amended complaint, seeking damages for Presley's personal injury, was not filed before Presley's death. According to § 6-5-462, Ala.Code 1975, personal-injury claims do not survive the death of a plaintiff unless an action has been filed before the plaintiff's death. Presley died on May 9, 1996; Callens filed her amended complaint on June 18, 1998. However, on April 2, 1996 (and allegedly on December 9 and 30, 1996), acting pursuant to § 6-5-20, Ala.Code 1975, Callens filed a notice of claim with the Jefferson County Commission based on her mother's December 11, 1995, injury.[3] Section 6-5-20 provides, in pertinent part: The effect of this statute is that a claimant may not commence an action "against a county until the claim is presented to and disallowed by the county commission." Marshall County v. Uptain, 409 So. 2d 423, 425 (Ala.1981). The statutory requirement of presenting a claim to the county commission is a condition precedent to filing a lawsuit against the county. Williams v. McMillan, 352 So. 2d 1347 (Ala.1977). By complying with § 6-5-20, Callens took the appropriate action to allow the personal-injury claims to survive Presley's death. In Groeschner v. County of Mobile, 512 So. 2d 70 (Ala.1987), a person who had suffered injuries in an automobile accident filed a claim with the county commission pursuant to § 6-5-20. He died of unrelated causes after the expiration of the 90-day period allowed for the commission to act on the claim. Immediately after his death (which occurred some 30 days after the running of the 90-day period), an action was filed based on his personal injuries. This Court held that by complying with § 6-5-20, the injured person "had taken appropriate action to meet the requirement that he first present his claim to the county commission before filing suit against the county." Id. at 72. Moreover, because he took that action, he was deemed to have satisfied the requirement of § 6-5-462, so that his personal-injury action survived his death. Id. In this case, Callens, as Presley's guardian, filed a notice of claim with the Jefferson County Commission in April 1996, more than one month before Presley died. Because Presley died before the 90-day statutory period had expired, her case is even stronger than was the plaintiff's case in Groeschner; the claims made on her behalf had not been disallowed by the Jefferson County Commission (or deemed disallowed) at the time of her death. Section 6-5-20 prevented Callens or Presley from filing a lawsuit against the county until the Commission had acted on the notice or until the expiration of the 90-day statutory period. Callens's filing a notice of claim with the Jefferson County Commission was sufficient to constitute a filing within the meaning of § 6-5-462; therefore, the personal-injury claim asserted on behalf of *278 Presley in Callens's amended complaint survived Presley's death. Callens argues that the trial court erred in dismissing her amended complaint on the grounds that it was barred by the statute of limitations. In that amended complaint, Callens, in her capacity as personal representative, sought damages for personal injuries to Presley. Although a claim alleging personal injury is subject to a two-year statute of limitations, § 6-2-38(l), Ala.Code 1975, the personal-injury claims stated in Callens's amended complaint relate back to the date she filed her original complaint because the allegations in the amended complaint arise out of the same "conduct, transaction, or occurrence" as the claims stated in the original complaint. Rule 15(c)(2), Ala. R. Civ.P., provides: In her amended complaint, Callens alleged that Presley's personal injuries were caused on December 11, 1995, by actions of JCNH, Augmentation, and Cox. Callens's claims stated in her original complaint alleging wrongful death, civil conspiracy, breach of contract, and the tort of outrage also arose out of events of December 11, 1995. Callens's claims in the amended complaint alleging negligent hiring, training, and supervision that she alleges resulted in personal injury to Presley would relate back under Rule 15(c)(2), Ala. R. Civ.P., if those claims arose out of the same "conduct, transaction, or occurrence" as that alleged in the original complaint, i.e., the December 11, 1995, injury to Presley. JCNH, Augmentation, and Cox moved to dismiss these claims; the trial court granted the motion. A court should not grant a motion to dismiss unless, under the allegations of the complaint, the plaintiff can prove no set of facts under which she would be entitled to relief. Thermal Components, Inc. v. Golden, 716 So. 2d 1166, 1167 (Ala.1998). From the allegations of the complaint, it was possible that the negligent acts related to hiring, training, and supervising could have occurred on the date of Presley's injury and could have related back to the date of the original complaint. We reverse the trial court's dismissal of these claims. Callens argues that the trial court improperly entered a summary judgment on the original complaint, in favor of JCNH and Jefferson County and its Commission and Commissioners. She complains only as to her claims alleging civil conspiracy, breach of contract, and the tort of outrage; she did not appeal as to the wrongfuldeath claim. Our standard for reviewing a summary judgment is well settled. A summary judgment is proper if there was no genuine issue of material fact and the movant was entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ.P. The defendants, as the parties moving for a summary judgment, had the burden of making a prima facie showing that no genuine issue of material fact existed and that they were entitled to a judgment as a matter of law. Long v. Jefferson County, 623 So. 2d 1130 (Ala.1993). If the defendants made that showing, then the burden shifted to Callens 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. In determining whether the nonmovant has created a genuine issue of material *279 fact, we apply the "substantial-evidence rule"evidence, to create a genuine issue of material fact, must be "substantial." § 12-21-12(a), 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).[4] In her original complaint, Callens, in her individual capacity, alleged that JCNH contracted with her to provide care and treatment for her mother and to preserve her mother's dignity. Callens states that she suffered damage as a result of the breach of contract. When JCNH moved for a summary judgment on Callens's breach-of-contract claim, it argued only that Callens's "claim sounds in tort, not in contract" and that her sole remedy is a wrongful-death action based on a claim of medical negligence. In opposition to JCNH's motion for a summary judgment, Callens submitted her affidavit and a series of documents that she characterized as a "contract" between her and JCNH.[5] These documents included an estimate of costs for a Medicaid patient (Exhibit A to her affidavit) and a description of the items and services included in the nursing home's daily pay rate for private-pay residents (Exhibit B to her affidavit). The description of items included in the rates for private-pay residents included "[l]inen, housekeeping and maintenance services to ensure a safe, clean and comfortable environment." In her affidavit, Callens stated: Callens also included these allegations in her complaint. JCNH did not respond to Callens's submission in opposition to the summary-judgment motion. The trial court entered a summary judgment for JCNH, stating that Callens had not presented evidence indicating that Presley's death was caused by the alleged negligence. On appeal, Callens argues that the trial court erred in entering the summary judgment on her claim, made in her individual capacity, for damages for breach of contract. She again refers to the evidence in her affidavit regarding unsanitary conditions that, according to her affidavit, indicate a breach of contract. While Callens does not specifically draw our attention to the aforementioned portion of Exhibit B that says Presley would be ensured a "safe, clean and comfortable environment," it is part of the materials she submitted in the trial court as evidence of her contract. JCNH's only response is the same argument it made in the trial courtthat Callens's claim arises in tort, not in contract. JCNH does not controvert the plaintiff's claim of contamination, nor does it argue that the referenced portion of Exhibit B does not create an express contract sufficient to take this case beyond the realm of cases where a duty is only implied from a contract lacking specificity as to the manner of performance. See Wilkinson v. Moseley, 18 Ala. 288 (1850), cited with approval in Eidson v. Johns-Ridout's Chapels, Inc., 508 So. 2d 697 (Ala.1987). The Wilkinson court provided *280 an example that is helpful in this case. A contract to ride a horse to a specified place cannot support an action in contract if the rider's excessive speed kills the horse, because the contract only implies a duty to ride at a moderate speed. On the other hand, a contract to ride a horse to a specified place at a reasonable speed would give rise to a claim for breach of contract if the rider rode at an excessive speed. Wilkinson, 18 Ala. at 291. In this present case, the duty to maintain sanitary conditions is expressed in the contract; therefore, a breach of that duty is actionable in contract. We reverse the summary judgment insofar as it related to Callens's breach-of-contract claim. Callens claims the summary judgment was improper as to her civil-conspiracy claims. As previously noted, Callens asserted these claims in her individual and representative capacities, seeking damages based on harm she incurred and on the alleged wrongful death of Presley. "`A civil conspiracy requires a combination of two or more individuals to accomplish a lawful end by unlawful means.'" Drill Parts & Serv. Co. v. Joy Mfg. Co., 619 So. 2d 1280, 1290 (Ala.1993) (quoting Nelson v. University of Alabama System, 594 So. 2d 632, 634 (Ala.1992)). A plaintiff alleging a conspiracy must have a valid underlying cause of action. Id. "[A] conspiracy claim must fail if the underlying act itself would not support an action." Triple J Cattle, Inc. v. Chambers, 621 So. 2d 1221, 1225 (Ala.1993). Callens, in her individual capacity, argues that she presented substantial evidence indicating that the defendants engaged in a civil conspiracy to commit fraud, negligence, and wantonness when they withheld information about the cause of Presley's hip injury, telling Callens that Presley had injured her knee. Callens's argument on this issue is devoted exclusively to her claim of fraudulent suppression. We therefore do not address her theories of a civil conspiracy to engage in negligence and wantonness. To prove fraudulent suppression, a plaintiff must show "(1) that the defendant had a duty to disclose material facts; (2) that the defendant concealed or failed to disclose those facts; (3) that the concealment or failure to disclose induced the plaintiff to act; and (4) that the defendant's action resulted in harm to the plaintiff." Booker v. United American Ins. Co., 700 So. 2d 1333, 1339 n. 10 (Ala.1997). Callens has not shown the materiality of the facts she alleges the defendants suppressed from her. "A `material fact' ... is a fact of such a nature as to induce action on the part of the complaining party." Bank of Red Bay v. King, 482 So. 2d 274, 282 (Ala.1985). Callens's complaint alleges that, because of the defendants' alleged suppression, she suffered loss or harm because she lost her mother and because, she says, she suffered shame, embarrassment, and extreme mental and emotional upset. Callens did not produce substantial evidence indicating that the defendants suppressed a material fact; she did not show, nor did she allege, that an act or statement of the defendants induced her to act. She also did not allege that her mother would have lived if the defendants had not concealed facts from her or that, but for the alleged concealment, her course of conduct would have been different. In addition, Callens did not show that the defendants' alleged concealment of material facts, or the defendants' alleged actions, resulted in her mother's death. She produced no expert testimony indicating that the defendants' allegedly fraudulent conduct caused Presley's death or caused Callens's alleged embarrassment.[6] We affirm the summary *281 judgment insofar as it related to Callens's claim alleging a conspiracy to engage in fraudulent suppression. In her representative capacity, Callens alleges that the defendants conspired to commit acts that caused the wrongful death of Presley. This claim must fail, because the trial court entered a summary judgment for the defendants on Callens's wrongful-death claim, on the basis that Callens could not prove causation. (See note 6.) Because Callens did not appeal the summary judgment as it related to her wrongful-death claim, she does not have a valid underlying cause of action to support her conspiracy claim. Triple J Cattle, 621 So. 2d at 1225. We affirm the summary judgment insofar as it related to Callens's claim alleging a conspiracy to commit acts resulting in Presley's death. Callens, in her individual capacity, argues that the trial court erred in entering the summary judgment for the defendants on her claim alleging intentional infliction of emotional distressthe tort of outrage. In order to prevail on this claim, Callens must prove (1) that the defendants either intended to inflict emotional distress, or knew or should have known that emotional distress was likely to result from their conduct; (2) that the defendants' conduct was extreme and outrageous; and (3) that the defendants' conduct caused emotional distress so severe that no reasonable person could be expected to endure it. American Road Serv. Co. v. Inmon, 394 So. 2d 361 (Ala.1980); Jackson v. Alabama Power Co., 630 So. 2d 439 (Ala.1993). This Court has recognized the tort of outrage in three areas: (1) wrongful conduct within the context of family burials; (2) an insurance agent's coercing an insured into settling an insurance claim; and (3) egregious sexual harassment. See Thomas v. BSE Indus. Contractors, Inc., 624 So. 2d 1041 (Ala.1993). This Court has limited the outrage cause of action to egregious circumstances. Although we in no way condone the defendants' alleged conduct, we conclude, after reviewing the evidence in a light most favorable to Callens, that their alleged behavior was not so extreme as to reach the level necessary to constitute the tort of outrage. We affirm the summary judgment as it relates to Callens's tort-of-outrage claim. As to Callens's claims made in her individual capacity, we affirm the summary judgment on her claims in the original complaint alleging civil conspiracy and the tort of outrage, and we reverse the summary judgment as it relates to Callens's breach-of-contract claim stated in the original complaint. As to Callens's claims in her representative capacity, we affirm the summary judgment as it relates to her claim in the original complaint alleging civil conspiracy, and we reverse the order dismissing Callens's claims, stated in the amended complaint, alleging personal injury to Presley; we also reverse the dismissal of Callens's claims, stated in the amended complaint, alleging negligent hiring, training, and supervision. We remand the cause for further proceedings consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] Callens also claims that she filed notices of claim with the Jefferson County Commission on December 9 and 30, 1996. [2] Callens's complaint also specifically names Commissioner Jeff Germany; the complaint does not explain why she named him specifically. [3] While the notices of claim Callens says she filed are not in the record before us, we view Callens's allegations in her complaint as true for purposes of reviewing the sufficiency of her complaint. This Court has held that appellate courts "must review motions to dismiss in the light most favorable to the plaintiff, resolving all reasonable doubts in his favor." Thermal Components, Inc. v. Golden, 716 So. 2d 1166, 1167 (Ala.1998). [4] We note that this present case was pending in this Court at the time this Court decided Ex parte General Motors Corp., 769 So. 2d 903 (Ala.1999). The summary-judgment standard established in Ex parte General Motors Corp. is to be applied prospectively only. [5] In her complaint, Callens "makes claims against Defendants Jefferson County, Alabama, its Commission and Commissioners, including Jeff Germany, and Jefferson County Nursing Home for compensatory damages resulting from the breach of contract." Callens offered no evidence of a contract between her and any defendant other than JCNH. [6] Insofar as it related to the wrongful-death claim, the summary judgment was based upon the plaintiff's failure to present proof of causation by expert testimony. As noted in the first paragraph of Part III, Callens did not appeal the summary judgment as it related to the wrongful-death claim.

February 11, 2000

91670c68-4cf9-4fd0-aa4f-be3768e4107c

Bleier v. Wellington Sears Co.

757 So. 2d 1163

1971121

Alabama

Alabama Supreme Court

757 So. 2d 1163 (2000) William M. BLEIER v. WELLINGTON SEARS COMPANY. 1971121. Supreme Court of Alabama. January 21, 2000. *1165 Timothy L. Dillard, Stevan K. Goozée, and Lawrence T. King of Dillard, Goozée & King, Birmingham, for appellant. Charles A. Powell III, David W. Proctor, and J. Trent Scofield of Johnston, Barton, Proctor & Powell, L.L.P., Birmingham; and Stephen E. Brown of Maynard, Cooper & Gale, P.C., Birmingham, for appellee. LYONS, Justice. William M. Bleier appeals from a summary judgment entered in favor of Wellington Sears Company, a corporation, on Bleier's claim alleging a retaliatory discharge. We reverse and remand. Wellington Sears is a textile manufacturer. Bleier is a former employee of Wellington Sears. On December 4, 1995, while working at Wellington Sears's mill at Shawmut, Bleier injured his back when he slipped and fell on a wet floor. He sought treatment from the company nurse, Linda Yates, who gave him some medication and made an appointment for him on December 18, 1995, with the company doctor, Dr. B.F. Thomas. Bleier continued to perform his regular duties at the Shawmut mill after receiving the injury. In mid-January 1996, Bleier met to discuss his accident with Yates; his supervisor, Olin Anglin; and Wellington Sears's human-resources manager, David Wilkerson. At that meeting, Bleier requested a second medical opinion. Wellington Sears made an appointment for him with one of Dr. Thomas's partners, Dr. David Scott. Thereafter, Wellington Sears transferred Bleier to a light-duty position at its Langdale mill, where Bleier performed primarily clerical tasks. Bleier says that on January 30, 1996, he left work early because of back pain. He then did not report to work for three consecutive days. On February 5, 1996, Wellington Sears terminated Bleier's employment. In a letter dated February 19, 1996, Wellington Sears advised Bleier that he had been discharged for failure to report to work or to give proper notice for three consecutive daysJanuary 31, February 1, and February 2, 1996. Bleier contends that on the afternoon of January 30, when he told Yates he was in pain and needed to go home, he also told her that if he continued to be in pain he would not come to work on January 31. On the morning of February 1, Bleier went to the Shawmut mill to pick up his paycheck. While he was there, he says, he spoke briefly with Anglin about his accident and told him he had an appointment that afternoon with Dr. Scott. Bleier reported to Dr. Scott's office on the afternoon *1166 of February 1, but did not see the doctor. Instead, he obtained copies of his medical records. Bleier testified that, because he was not satisfied with his medical progress, he made an appointment for February 2 with a doctor at the Hughston Clinic, a medical facility specializing in orthopedics, where he said he spent the entire day of February 2. Bleier stated that on February 5 he telephoned Wellington Sears to tell Yates and Wilkerson about his visit to the Hughston Clinic. At that time, he said, Wilkerson told him he was being discharged for failing to report his absences in accordance with company policy. Wellington Sears insists that even if Bleier made these contacts, he still failed to comply with the proper procedures for reporting absences from work. On March 21, 1996, Bleier sued Wellington Sears, seeking workers' compensation benefits and alleging that Wellington Sears had fired him in retaliation for having filed a workers' compensation claim. The retaliatory-discharge claim was made pursuant to § 25-5-11.1, Ala.Code 1975.[1] The trial court severed Bleier's two claims; Bleier and Wellington Sears later settled the workers' compensation claim. Pursuant to their settlement agreement, Wellington Sears paid Bleier a lump-sum settlement of $35,000, the approximate equivalent of a 50% permanent vocational disability. Upon completion of discovery, Wellington Sears moved, pursuant to Rule 56(c), Ala. R. Civ. P., for a summary judgment as to Bleier's retaliatory-discharge claim. In its motion, Wellington Sears asserted that Bleier was precluded from a recovery under § 25-5-11.1 because, it said, Bleier was not "willing and able" to return to work. The Court of Civil Appeals has stated that an employee's being willing and able to return to work is an essential element that must be proved in order to recover under the retaliatory-discharge statute. See Consolidated Stores, Inc. v. Gargis, 686 So. 2d 268 (Ala.Civ.App.), cert. denied, 686 So. 2d 278 (Ala.1996), and its progeny. Wellington Sears also argued in its motion that even if Bleier's retaliatory-discharge claim was not precluded by his failure to satisfy the "willing and able" requirement, it had produced substantial evidence indicating that it had discharged Bleier for a legitimate reason that was not merely pretextual. The trial court entered a summary judgment in favor of Wellington Sears, based on a conclusion that Bleier could not satisfy the "willing and able" requirement of proof. In its order, the trial court set forth the following facts: As noted by the trial court, Bleier testified in his deposition that since January 30, 1996 (his last day of work), he has beenand he says he currently isphysically unable to work. In other words, Bleier has neither worked nor attempted to work since January 30, 1996, six days before Wellington Sears fired him. In his deposition, Bleier described his condition: Bleier, however, points to another part of his deposition testimony where he stated that between February 5, 1996, and September 4, 1996, he was physically able to do work "to a certain extent." Bleier contends that the requirement that an employee show that he or she is "willing and able" to return to work as an element of a retaliatory-discharge claim is an unwarranted and unconstitutional extension of § 25-5-11.1. Bleier maintains that if the relevant moment of inquiry is limited to the point at which the employee was discharged, as he contends it should be, then any evidence of his condition after Wellington Sears discharged him should not be considered on the question whether he had presented sufficient evidence to create a prima facie case. Otherwise, he argues, the application of the "willing-and-able" doctrine creates a potential for great unfairness in the case of an injured employee who is discharged at a point when he or she is not yet "willing and able" to return to work but is, at that point, only temporarily disabled. Bleier also contends that Wellington Sears's stated reason for discharging him was not true, but was merely a pretext for otherwise impermissible action. Specifically, he maintains that a representative of Wellington Sears admitted to him that the company had violated § 25-5-11.1 when it discharged him. When reviewing the disposition of a motion for a summary judgment, this Court applies the same standard of review as the trial court "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.[2]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 Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). Under Alabama law, an employment contract is terminable at will by either partyfor a good reason, a wrong reason, or no reason at all. Culbreth v. Woodham Plumbing Co., 599 So. 2d 1120 (Ala.1992). Because of this rule, which dates back to Howard v. East Tennessee V. & G. Ry., 91 Ala. 268, 8 So. 868 (1891), this Court refused to recognize a commonlaw remedy for a retaliatory discharge occurring as a result of an employee's filing a claim for workers' compensation benefits. *1168 Meeks v. Opp Cotton Mills, Inc., 459 So. 2d 814 (Ala.1984). In order to ameliorate the effect of the employment-at-will doctrine in the context of an employee discharged for filing a claim for workers' compensation benefits, the Legislature in 1984 enacted § 25-5-11.1, Ala.Code 1975. Section 25-5-11.1 states that "[n]o employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers' compensation benefits." See Twilley v. Daubert Coated Products, Inc., 536 So. 2d 1364 (Ala.1988). The requirement that the employee be "willing and able" to return to work first appeared in 1996 in Gargis, 686 So. 2d at 273.[3] In so holding, the Court of Civil Appeals sought to conform the Alabama retaliatory-discharge statute to federal anti-discrimination statutes, most of which recognize an employee's willingness and ability to return to work as a prerequisite to a recovery of damages for termination. Gargis, 686 So. 2d at 273, citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981) ("plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualified ... under Title VII"); Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S. Ct. 2361, 60 L. Ed. 2d 980 (1979) ("An otherwise qualified person [under the Rehabilitation Act] is one who is able to meet all of a program's requirements in spite of his handicap."); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) (plaintiff must show he applied and was an otherwise qualified handicapped person in order to prove a Title VII claim); Pushkin v. Regents of the University of Colorado, 658 F.2d 1372, 1387 (10th Cir.1981) (plaintiff must show that he was an otherwise qualified person, apart from his handicap); and Parham v. Carrier Corp., 9 F.3d 383 (5th Cir.1993) (court held that the plaintiff had failed to establish a "causal nexus" between his filing of a workers' compensation claim and his discharge by his employerbased in part on the fact that the overwhelming evidence showed that he was physically unable to work). Against the bare-bones framework of § 25-5-11.1, creating a remedy for a retaliatory discharge, the courts of this state have been required to flesh out the elements of this relatively new cause of action. One of the fundamental rules of statutory construction is that a court is to determine and give effect to the Legislature's intent in enacting a statute. Norfolk S. Ry. Co. v. Johnson, 740 So. 2d 392 (Ala.1999). In construing acts of the Legislature, we ascertain its intent from the language used in the statute itself, if possible, as well as from the reason and necessity for the act and the goals the Legislature sought to accomplish. McGuire Oil Co. v. Mapco, Inc., 612 So. 2d 417 (Ala.1992); Advertiser Co. v. Hobbie, 474 So. 2d 93 (Ala. 1985). If the statute is ambiguous, then we "may consider conditions that might arise under the provisions of the statute and examine results that would flow from giving the language in question one particular meaning rather than another." Norfolk S. Ry. Co., 740 So. 2d at 396. Section 25-5-11.1 prohibits an employee's discharge "solely because the employee has instituted or maintained [an] action" seeking workers' compensation benefits. In Twilley, 536 So. 2d at 1364, this Court held that the term "solely," as used in the retaliatory-discharge statute, was intended to give the statute remedial effect. Because *1169 the statute is remedial legislation, we must construe § 25-5-11.1 liberally in order to effectuate its beneficent purposes. Id. Section 25-5-11.1 was signed into law by the Governor just four months after this Court had decided Meeks, wherein this Court declined to fashion a common-law remedy for retaliatory discharge. Hence, we can presume that when the Legislature enacted § 25-5-11.1, it was well aware of the existing law permitting an employer to discharge an at-will employee either with or without cause. Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So. 2d 293 (Ala.1998); Hamm v. Harrigan, 278 Ala. 372, 178 So. 2d 529, reh'g stricken, 278 Ala. 521, 179 So. 2d 154 (1965), cert. denied, 382 U.S. 981, 86 S. Ct. 555, 15 L. Ed. 2d 471 (1966). We must construe § 25-5-11.1 in a manner that effectuates the obvious legislative intent to protect an employee from a retaliatory discharge based solely on the employee's filing a workers' compensation claim. However, at the same time, we must refrain from construing § 25-5-11.1 in a manner that revises the at-will doctrine beyond the extent necessary to accommodate the obvious legislative purpose. Although we agree with the Court of Civil Appeals that whether an employee is "willing and able" to work is an appropriate inquiry in a retaliatory-discharge case, we must recognize that striking a delicate balance is a difficult task. In attempting to strike that balance, we conclude, with the benefit of experience flowing from the Court of Civil Appeals' decision in Gargis in 1996, that the appropriate place to consider that inquiry should be somewhere besides the context of the employee's prima facie case. Our decision is informed by a review of the manner in which other courts dealing with a retaliatory-discharge action treat the question of an employee's willingness and ability to return to work.[4] Recently, in Johnson v. Cargill, Inc., 984 S.W.2d 233 (Tenn.App.1998), the Tennessee Court of Appeals, in a retaliatory-discharge action, considered the relevance of an employee's physical condition; that court used the employee's disability as the basis for reversing a judgment for the employee. In applying Tennessee's common-law cause of action for a retaliatory discharge based on the employee's filing a workers' compensation claim, the court stated: 984 S.W.2d at 234 (emphasis added; citations omitted) (quoting Anderson v. Standard Register Co., 857 S.W.2d 555, 558-59 (Tenn.1993)). In Johnson v. Cargill, the employee sought to overcome the evidence of his disability by showing a discriminatory *1170 refusal to make him eligible for a "light-duty" policy under which injured employees were either given lighter duties or were helped with their usual duties until they could return to their regular work. However, the court reviewed the evidence regarding the treatment other employees had received and concluded that it did not substantiate the employee's claim of discrimination. In Elzey v. Forrest, 739 P.2d 999 (Okla. 1987), the Oklahoma Supreme Court, interpreting a statute creating a remedy for retaliatory discharge, reached a similar conclusion regarding how to deal with the employee's inability to perform.[5] In dealing with the same issue here presented, the Oklahoma court stated: 739 P.2d at 1002-03 (emphasis added; footnotes omitted). The Oklahoma court thus rejected the argument that proof of physical ability is a part of the employee's prima facie case, notwithstanding that the Oklahoma statute expressly protected the employer's right to refuse to rehire or retain any employee who was physically unable to perform his assigned duties. In Cardwell v. American Linen Supply, 843 P.2d 596 (Wyo.1992), the Supreme Court of Wyoming affirmed a summary judgment for the employer in a retaliatory-discharge action. The employer, after having attempted for over a year to accommodate the employee's medical problems, discharged the employee because she was no longer physically able to perform her job. The court stated: 843 P.2d at 599 (quoting Lankford v. True Ranches, Inc., 822 P.2d 868, 872 (Wyo. 1991)). Then, in an effort to flesh out the elements of Wyoming's common-law cause of action for retaliatory discharge, the Wyoming *1171 court adopted a discussion of the order and burdens of proof established by the Oklahoma Supreme Court in its retaliatory-discharge cases: 843 P.2d at 599-600 (emphasis added) (ellipses and interpolation in Cardwell) (quoting Buckner v. General Motors Corp., 760 P.2d 803, 806-07 (Okla.1988)). We conclude that the "willing-and-able" doctrine is relevant in a retaliatory-discharge claim brought pursuant to § 25-5-11.1. To hold otherwise would give an excessively broad effect to the Legislature's retaliatory-discharge exception to the employment-at-will doctrine. However, to accommodate the continued relevance of an employee's willingness and ability to work by embedding the "willing-and-able" requirement into the elements of the plaintiff's prima facie case of retaliatory discharge would exclude a substantial class of employees from the protection of the remedy provided by § 25-5-11.1. We cannot conclude that the Legislature intended to exclude that class from the remedy, in the absence of specific direction. For that reason, we decline to follow the precedent taken from the federal statutory remedies relied upon in Gargis.[6] See Pierce v. Franklin Elec. Co., 737 P.2d 921, 925 (Okla.1987) (exclusion of disabled employee from shield against retaliatory discharge would severely undermine objective of Oklahoma's statutory scheme). We hold, therefore, that the "willing-and-able" doctrine does not establish an element of an employee's prima facie case, but that the question whether an employee is willing and able to return to work is relevant to the defendant's opportunity to establish a defense to a claim alleging retaliatory discharge or to eliminate or reduce the damages recoverable for lost wages. To the extent they hold otherwise, the following cases are overruled: Gordon v. J.B. Hunt Transport, Inc., 744 So. 2d 942 (Ala.Civ.App.1999); Chapman v. Boise Cascade Corp., 726 So. 2d 729 (Ala.Civ.App. 1999); Hammock v. Ryder Dedicated Logistics, Inc., 716 So. 2d 215 (Ala.Civ.App. 1998); Alexander v. Pace Indus., Inc., 710 So. 2d 450 (Ala.Civ.App.1997); Rice v. Bruno's, Inc., 705 So. 2d 486 (Ala.Civ.App. 1997); Watwood v. White Consol. Indus., Inc., 699 So. 2d 210 (Ala.Civ.App.1997); Lambert v. Beverly Enterprises, Inc., 695 So. 2d 44 (Ala.Civ.App.1997); and Consolidated Stores, Inc. v. Gargis, 686 So. 2d 268 (Ala.Civ.App.), cert. denied, 686 So. 2d 278 (Ala.1996). *1172 The decisions we have cited from Oklahoma, Wyoming, and Tennessee, dealing with the issue of a remedy for a retaliatory discharge and the question of an employee's ability to perform, are highly persuasive.[7] We emphasize that evidence underlying the "willing-and-able" doctrine remains quite relevant to an employer's defense against an action alleging a retaliatory discharge.[8] The Legislature enacted § 25-5-11.1 to remedy the hardship caused when an employer retaliates against an employee who was injured in the line and scope of his or her employment and sought to recover workers' compensation benefits. The Court of Civil Appeals is quite correct in observing that the statute does not require an employer to create a job specifically designed for an injured employee and does not require an employer to provide the employee with special accommodations to allow the employee to perform a job. Had the Legislature intended to place those requirements upon employers, it could have specified that intent by the statute that created the cause of action for retaliatory discharge. Some employers are able to create light-duty work or can make accommodations to assist an injured employee; they are to be commended for their efforts. Nevertheless, when the law does not require an employer to create a job or to provide special accommodations, the employer cannot be penalized for failing to do so and, instead, discharging an employee who is not able to perform the duties of his job, so long as the discharge is not based on the employee's filing a workers' compensation claim.[9] See Hammock, 716 So. 2d at 218; Rice, 705 So. 2d at 488; Lambert, 695 So. 2d at 47. Should an employer consider the scope of the remedy provided a discharged employee to be too expansive, it should direct its efforts toward the Legislature, the source of the remedy we are required to implement. The "willing-and-able" doctrine also is relevant to a discharged employee's claim for damages. Although § 25-5-11.1 makes no specific reference to damages, this Court has determined that under that statute damages can be awarded in accordance with the general law of torts. See Caraway v. Franklin Ferguson Mfg. Co., 507 So. 2d 925 (Ala.1987). An employee who is discharged solely for filing a workers' compensation claim, but who is either unwilling[10] or unable to return to work, cannot recover damages for lost wages. However, that employee would be able to recover damages for any loss or harm, other than lost wages, that arose before he became unwilling or unable to work, such as lost benefits and/or mental anguish. *1173 See Motion Industries, Inc. v. Pate, 678 So. 2d 724 (Ala.1996) (holding that an employee discharged in violation of § 25-5-11.1 can recover mental-anguish damages if the claim for such damages is supported by the record). An employee also may be able to recover punitive damages. See Continental Eagle Corp. v. Mokrzycki, 611 So. 2d 313 (Ala.1992). Of course, an employee who can prove that he or she was willing and able to work, but nevertheless was discharged for seeking workers' compensation benefits, may recover the wages lost as a result of the retaliatory discharge. Wellington Sears's alternative basis for an affirmance is grounded upon its contention that even if Bleier made all of the contacts he claims justified his absence from work, he nonetheless violated company rules establishing the proper procedures for reporting absence from work. Bleier offered evidence indicating that a Wellington Sears representative had admitted that the company violated the provisions of § 25-5-11.1 when it discharged him. That evidence is sufficient to establish a prima facie case of retaliatory discharge and to defeat Wellington Sears's motion for summary judgment. We reverse the summary judgment in favor of Wellington Sears and remand the cause for further proceedings consistent with this opinion. REVERSED AND REMANDED. MADDOX, HOUSTON, COOK, and SEE, JJ., concur. JOHNSTONE, J.,[*] concurs specially. BROWN, J., concurs in the result. JOHNSTONE, Justice (concurring specially). I concur, but with the qualification that the defense that the employee was discharged for unwillingness or inability to do the job will not be recognized unless, at the time of discharge, either (1) the employee was able but was unwilling to do the job or (2) the employee had reached maximum medical improvement. For example, the employer will not be allowed to contend that its reason for discharging the employee was that he was recuperating in the hospital from his on-the-job injury and thus was unable or unwilling to do the job. [1] We note that in his complaint Bleier named additional defendants and stated an additional claim alleging intentional interference with business/contractual relations. The additional defendants and claim, however, are not involved in this appeal. The trial court dismissed the other defendants and entered a summary judgment in favor of the defendants on Bleier's claim alleging intentional interference with business/contractual relations. [2] We note that this present case was pending in this Court at the time this Court decided Ex parte General Motors Corp., [Ms. 1971318, Sept. 24, 1999] ___ So.2d ___ (Ala.1999). The summary-judgment standard established in Ex parte General Motors is to be applied prospectively only. [3] The Court of Civil Appeals has consistently followed the "willing-and-able" doctrine announced in Gargis. See, e.g., Gordon v. J.B. Hunt Transport, Inc., 744 So. 2d 942 (Ala.Civ. App.1999); Chapman v. Boise Cascade Corp., 726 So. 2d 729 (Ala.Civ.App.1999); Hammock v. Ryder Dedicated Logistics, Inc., 716 So. 2d 215 (Ala.Civ.App.1998); Alexander v. Pace Indus., Inc., 710 So. 2d 450 (Ala.Civ.App.1997); Rice v. Bruno's, Inc., 705 So. 2d 486 (Ala.Civ. App.1997); Watwood v. White Consol. Indus., Inc., 699 So. 2d 210 (Ala.Civ.App.1997); Lambert v. Beverly Enterprises, Inc., 695 So. 2d 44 (Ala.Civ.App.1997). [4] We note that most jurisdictions have addressed the issues inherent in retaliatory-discharge claims by statute or by judicial decisions. See 6 Arthur Larson, The Law of Workmen's Compensation § 68.36 (1999); Theresa Ludwig Kruk, Annotation, Recovery for Discharge from Employment in Retaliation for Filing Workers' Compensation Claim, 32 A.L.R.4th 1221 (1984); Thomas J. Goger, Annotation, Workmen's Compensation: Recovery for Discharge in Retaliation for Filing Claim, 63 A.L.R.3d 979 (1975). [5] 85 O.S.1981 § 5 provided as follows: "No person, firm, partnership or corporation may discharge any employee because the employee has in good faith filed a claim, or has retained a lawyer to represent him in said claim, instituted or caused to be instituted, in good faith, any proceeding under the provisions of Title 85 of the Oklahoma Statutes, or has testified or is about to testify in any such proceeding. Provided no employer shall be required to rehire or retain any employee who is determined physically unable to perform his assigned duties." (As quoted in Elzey, 739 P.2d at 1001.) [6] Although this Court referred to the "willing-and-able" doctrine in Twilley, 536 So. 2d at 1365, and Culbreth, 599 So. 2d at 1122, as one of the ways in which an employee might prove a retaliatory discharge, we did not establish as a prerequisite to a prima facie case that the employee must prove that he or she was willing and able to return to work. [7] We note that the difference between the law in these other jurisdictions and Alabama law is that in Tennessee, Oklahoma, and Wyoming, the employee must prove that the employee's seeking workers' compensation benefits was a substantial factor in the decision to discharge the employee, whereas in Alabama, the employee must prove that seeking workers' compensation benefits was the sole factor in the employer's decision to discharge the employee. We do not consider this difference to be determinative of the question before uswhether proof that the employee is "willing and able" should be a component of a prima facie case under § 25-5-11.1. [8] Where the employee's willingness or ability to return to work is in dispute, it is a question to be decided by the trier of fact. Dunlop Tire Corp. v. Allen, 725 So. 2d 960 (Ala.1998). [9] If an employer discharges an employee who has been injured, and does so at a time when the employer could not know the employee's ultimate status, that fact would weigh against any assertion that the employee's inability to perform was the basis of the decision. A later determination of disability for purposes of a claim for Social Security benefits could be relevant to the issue of damages, but would not preclude the employee from establishing a prima facie case. See McCrary v. REF Alabama, Inc., 757 So. 2d 421 (Ala.2000). [10] We recognize that the decisions from Tennessee, Oklahoma, and Wyoming focus on an employee's inability to perform, but we see no reason to think they would be decided differently in the context of an employee's unwillingness to perform. [*] Although Justice Johnstone did not sit at oral argument of this case, he has listened to the tape of oral argument.

January 21, 2000

a07746ad-5d57-4030-9b1a-2a0a42347d94

Homes of Legend, Inc. v. McCollough

776 So. 2d 741

1980921

Alabama

Alabama Supreme Court

776 So. 2d 741 (2000) HOMES OF LEGEND, INC. v. Phillip A. McCOLLOUGH. 1980921. Supreme Court of Alabama. January 28, 2000.[*] *742 David L. Selby II, Larry S. Logsdon, and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appellant. G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for appellee. SEE, Justice. Homes of Legend, Inc., the defendant in an action pending in the Elmore Circuit Court, appeals from the trial court's order denying its motion to compel arbitration of the claims filed against it by Phillip A. McCollough. Homes of Legend moved to compel arbitration, based on an arbitration provision contained in the written warranty it had furnished McCollough when he purchased a mobile home. Because we construe that arbitration provision as providing for nonbinding arbitration, we reverse and remand. In that part of its order denying Homes of Legend's motion to compel arbitration, the trial court made no express or specific findings of fact. According to McCollough's affidavit (the only affidavit contained *743 in the record), in May 1997 he agreed to purchase a mobile home from Hart's Mobile Homes Sales, Inc. ("Hart"). McCollough alleges that Hart agreed to "special order" the mobile home from Homes of Legend.[1] McCollough also alleges that when the mobile home was ordered, he paid Hart $500.00 as a down payment. The mobile home was delivered to Hart from Homes of Legend. After delivery to Hart, McCollough alleges, he paid Hart an additional $2,464 and entered into a "Set-Up Agreement" with Hart to deliver and set up the mobile home. The mobile home was delivered to McCollough and was set up. When the home was delivered, McCollough received and signed a "Limited One Year Service Warranty" issued by Homes of Legend. The warranty contains the following arbitration provision: Since delivery, McCollough alleges, he has lived continuously in the mobile home, occupying it as his personal residence. In May 1998, McCollough sued Homes of Legend, alleging, among other things, that the mobile home contained numerous manufacturing defects. McCollough alleged breach of express warranty, breach of implied warranty, negligent construction, wanton construction, fraudulent concealment of violations of federal housing regulations, negligent or wanton repair, promissory fraud relating to service of the mobile home, fraudulent concealment of certain terms of the warranty, and violations of the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. § 2301 to § 2312 (the "Magnuson-Moss Act").[2] Homes of Legend answered the complaint, denying in the main those allegations. However, in its answer, Homes of Legend admitted that in May 1997 McCollough had purchased a mobile home manufactured by it, that it had given McCollough a limited one-year service *744 warranty, and that it had made repairs to McCollough's mobile home. Homes of Legend moved to compel arbitration of McCollough's claims, based on the arbitration provision contained in the written warranty.[3] McCollough opposed Homes of Legend's motion, arguing, among other things, that the arbitration provision was unenforceable because the warranty expressly provides that it is intended to comply with the requirements of the Magnuson-Moss Act and regulations issued thereunder, and because those regulations prohibit a warrantor from including a binding-arbitration provision in its written warranty.[4] McCollough moved for a partial summary judgment on his claim that the provisions of Homes of Legend's warranty, specifically the "limitation-of-remedies" provision, violated the Magnuson-Moss Act. After conducting a hearing, which was not transcribed, the trial court denied the motion to compel arbitration and granted McCollough's motion for a partial summary judgment.[5] In denying Homes of Legend's motion to compel arbitration, the trial court, relying primarily on Wilson v. Waverlee Homes, Inc., 954 F. Supp. 1530 (M.D.Ala.1997), aff'd, 127 F.3d 40 (11th Cir.1997), held, among other things, that the limitation-of-remedies provision, which contains the arbitration provision, is unenforceable because, the court held, it violates the Magnuson-Moss Act.[6] With respect to McCollough's motion for a partial summary judgment, the trial court held that 15 U.S.C. § 2310(d), part of the Magnuson-Moss Act, creates a cause of action for damages in favor of McCollough as a consumer and that Homes of Legend's limitation-of-remedies provision in its written warranty improperly seeks to avoid the obligations under the Act and violates the federal regulations promulgated pursuant to the Act. The trial court left undecided the question what damages McCollough was entitled to recover for violations of the Magnuson-Moss Act. Homes of Legend moved the trial court to reconsider its order denying its motion to compel arbitration, or, in the alternative, to amend its order to include the statement necessary under Rule 5, Ala. R.App. P., for a permissive appeal from the partial summary judgment. The trial court denied the motion to reconsider or to amend its order. Homes of Legend filed a notice of appeal from the trial court's order denying its *745 motion to compel arbitration.[7] Homes of Legend has not asked this Court's permission to appeal from the partial summary judgment in favor of McCollough. 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 Kirkland, 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 (except for certain employment contracts, see 9 U.S.C. § 1) has the effect of preempting conflicting Alabama law, in particular Ala.Code 1975, § 8-1-41(3), and thereby making enforceable a predispute arbitration agreement in a contract evidencing a transaction that involves interstate commerce.[8] See Allied-Bruce Terminix Companies, Inc. 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). As the United States Supreme Court explained in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983): (Emphasis added.) Questions of arbitrability that is, whether the parties agreed to submit their particular dispute to arbitration "must be addressed with a healthy regard for the federal policy favoring arbitration," id. at 24, 103 S. Ct. 927; but, in determining whether the parties agreed to arbitrate a dispute, this Court "should apply ordinary state-law principles that govern the formation of contracts." First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995); accord Quality Truck & Auto Sales, Inc. v. Yassine, 730 So. 2d 1164, 1167-68 (Ala.1999). Consequently, "in applying general state-law principles of contract interpretation to the interpretation of an arbitration agreement within the scope of the Act, due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration." Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 475-76, *746 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989) (citation omitted). However, the federal policy favoring arbitration does not require this Court to ignore the contractual intentions of the parties. See Volt Information Sciences, Inc., 489 U.S. at 478-79, 109 S. Ct. 1248; Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57, 115 S. Ct. 1212, 131 L. Ed. 2d 76 (1995). Instead, "[t]his Court has clearly and consistently held that a party cannot be required to submit to arbitration any dispute he has not agreed to submit." Ex parte Stallings & Sons, Inc., 670 So. 2d 861, 862 (Ala.1995) (internal quotation marks and citations omitted); accord AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986). The FAA "simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms," and "parties are generally free to structure their arbitration agreements as they see fit." Volt Information Sciences, Inc., 489 U.S. at 478-79, 109 S. Ct. 1248. Accordingly, "as with any other contract, the parties' intentions control, but those intentions are generously construed as to issues of arbitrability." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985). Under general Alabama rules of contract interpretation, the intent of the contracting parties is discerned from the whole of the contract. See Loerch v. National Bank of Commerce of Birmingham, 624 So. 2d 552, 553 (Ala.1993). Where there is no indication that the terms of the contract are used in a special or technical sense, they will be given their ordinary, plain, and natural meaning. See Ex parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33, 36 (Ala.1998). If the court determines that the terms are unambiguous (susceptible of only one reasonable meaning), then the court will presume that the parties intended what they stated and will enforce the contract as written. See id. at 36; Voyager Life Ins. Co. v. Whitson, 703 So. 2d 944, 948 (Ala.1997). On the other hand, if the court determines that the terms are ambiguous (susceptible of more than one reasonable meaning), then the court must use established rules of contract construction to resolve the ambiguity. See Whitson, 703 So. 2d at 948. Under those established rules of contract construction, where there is a choice between a valid construction and an invalid construction the court has a duty to accept the construction that will uphold, rather than destroy, the contract and that will give effect and meaning to all of its terms. See id. at 948-49; Sullivan, Long & Hagerty v. Southern Elec. Generating Co., 667 So. 2d 722, 725 (Ala.1995). Additionally, "if there exists inconsistency between two clauses of a contract which cannot be reconciled, the inconsistency must be resolved in favor of the prior clause, unless an intention to thereafter qualify is plainly expressed." City of Fairhope v. Town of Daphne, 282 Ala. 51, 58, 208 So. 2d 917, 924 (1968); see Whitson, 703 So. 2d at 949. Last, if all other rules of contract construction fail to resolve the ambiguity, then, under the rule of contra proferentem, any ambiguity must be construed against the drafter of the contract. See Lackey v. Central Bank of the South, 710 So. 2d 419, 422 (Ala.1998). We conclude that Homes of Legend's written warranty provides for nonbinding arbitration. An ambiguity arises when the arbitration provision and the paragraph of the warranty expressing the parties' intent are considered together. The arbitration provision incorporates by reference the Commercial Arbitration Rules of the American Arbitration Association. Under state-law principles of contract interpretation, parties may be bound by documents incorporated by reference. See Ex parte Dan Tucker Auto Sales, Inc., 718 So. 2d at 36. The American Arbitration Association's Commercial Arbitration Rules, a copy of which is contained in the *747 record, provide for binding arbitration. Thus, under a plain reading, the limitation-of-remedies provision calls for binding arbitration. The paragraph on the second page of the warranty expresses the parties' intent that the warranty comply with regulations promulgated by the Federal Trade Commission under authority of the Magnuson-Moss Act. That paragraph reads: The FTC regulations promulgated under the Magnuson-Moss Act do not permit binding arbitration. See 16 C.F.R. § 700.8. Section 700.8 provides: Thus, under § 700.8, a warrantor, such as Homes of Legend, is prohibited from including in its written warranty a provision calling for binding arbitration of any dispute between it and a consumer, such as McCollough, concerning that warranty. The Magnuson-Moss Act, though, does provide for "informal dispute settlement mechanisms," similar to arbitration, to resolve disputes between warrantors and consumers. 15 U.S.C. § 2310. The Magnuson-Moss Act permits a warrantor to "incorporate[] in a written warranty a requirement that the consumer resort to [an informal dispute-settlement mechanism] before pursuing any legal remedy" under the Act against the warrantor, id. § 2310(a)(3), provided that the decisions reached through use of those mechanisms are not legally binding, see 16 C.F.R. § 703.5(j) ("Decisions of the Mechanism shall not be legally binding on any person."). We find that the limitation-of-remedies provision and the paragraph on the second page of the warranty conflict. The limitation-of-remedies provision calls for binding arbitration, but the paragraph on the second page calls for compliance with FTC regulations, which expressly prohibit binding arbitration.[9] Applicable federal *748 law requires us to reconcile this inconsistency in favor of the arbitration provision, unless the latter clause "plainly expresses" an intent to qualify the arbitration provision. We conclude that the second sentence in the paragraph quoted above from the second page of the warranty plainly expresses an intent on the part of these parties to qualify the arbitration provision. It specifically addresses the situation where a part of the warranty conflicts with a Magnuson-Moss Act regulation. It provides that "[a]ny part of this warranty in conflict with any such law, rule or regulations shall be effective to the extent required thereby." Thus, because the latter paragraph plainly qualifies the limitation-of-remedies provision, we resolve the conflict between the two provisions by concluding that they provide for nonbinding arbitration. We adopt this construction because it is the only reasonable construction that gives effect to both provisions and, thus, upholds, rather than destroys, the terms of the written warranty.[10] This construction is also consistent with the liberal federal policy favoring the enforcement of arbitration agreements. Under the particular facts of this case, state-law rules of contract construction further, rather than impede, the purposes and policies of the FAA "to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms." Volt Information Sciences, Inc., 489 U.S. at 478, 109 S. Ct. 1248. The arbitration provision conflicts with FTC regulations to the extent that provision requires binding arbitration. The FAA, however, does not require that an arbitration agreement provide for binding arbitration. See Wolsey, Ltd. v. Foodmaker, Inc., 144 F.3d 1205, 1209 (9th Cir.1998) ("In light of the strong presumption in favor of arbitrability recognized in Moses H. Cone, we hold that arbitration need not be binding in order to fall within the scope of the Federal Arbitration Act."). On the other hand, the FTC regulations promulgated under the Magnuson-Moss Act do not prohibit all forms of arbitration, only binding arbitration. Thus, the two provisions can be read consistently with one another to express an intent to submit the parties' claims to nonbinding arbitration. Accordingly, we hold that Homes of Legend is entitled to "an order directing the parties to proceed to arbitration in accordance with the terms of the agreement." 9 U.S.C. § 4. Homes of Legend moved the trial court to stay the proceedings and to compel arbitration "pursuant to the terms and conditions of the ... arbitration agreement." The trial court erred in denying that motion. Therefore, we reverse the trial court's order to the extent that it denied Homes of Legend's motion to compel arbitration, and we remand this case for further proceedings consistent with this opinion.[11] REVERSED AND REMANDED. *749 MADDOX, HOUSTON, LYONS, and BROWN, JJ., concur. COOK, JOHNSTONE, and ENGLAND, JJ., dissent. JOHNSTONE, Justice (dissenting). The trial court was right in denying the motion to compel arbitration, first, because the movant failed to satisfy the condition precedent of mediation expressly stated in the warranty. The requirement that the parties first resort to mediation is obviously the foundation of the recitation that the warranty is intended to comply with the Magnuson-Moss Act, which condones mediation but proscribes predispute agreements for binding arbitration. This proscription is the second reason the trial court was right in denying the motion to compel. [*] 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] We note that the record contains copies of documents relating to the sale of the mobile home involved in this case. Those documents indicate, however, that the purchaser of the mobile home was not McCollough, but instead "Irma J. Davis." Davis is not a party to this case. [2] McCollough also sued Hart, alleging claims similar to those alleged against Homes of Legend. However, Hart is not a party to this appeal, and we need not address the claims against it. [3] Hart also moved to compel arbitration. In addition, Hart moved to dismiss the complaint on the grounds that McCollough lacked the capacity to sue because he was not a party to the sale of the mobile home, but rather "Irma J. Davis" was the actual purchaser of the mobile home; or, in the alternative, to cause Davis to be added as a party plaintiff. The trial court denied Hart's motion to dismiss or to add Davis. The trial court held that McCollough had standing to sue and that the addition of Davis as a plaintiff would be inconsistent with Hart's position that Davis had agreed to submit any claims against Hart to arbitration. We express no opinion as to the trial court's ruling on these issues. [4] McCollough also argued that because the warranty "is intended to comply with the requirements of ... any applicable State or local laws, rules or regulations" (quoting the paragraph on the second page of the written warranty), enforcement of the arbitration provision is prohibited by Ala.Code 1975, § 8-1-41. [5] In addition to ruling on the motions to compel arbitration and the motion for a partial summary judgment, the trial court also ruled on other motions filed by the parties. The only order of the trial court that is properly before this Court, however, is its denial of Homes of Legend's motion to compel arbitration. [6] The trial court did not directly address McCollough's argument that the Magnuson-Moss Act precludes the enforcement under the Federal Arbitration Act, 9 U.S.C. § 1 et seq., of the arbitration provision in Homes of Legend's warranty. The trial court did note that the warranty states that it is intended to comply with the requirements of the Magnuson-Moss Act and concluded that "if the Magnuson[-]Moss Act did not preclude enforcement of the arbitration provision, the provision would nevertheless be unenforceable because [the warranty] `is intended to comply with the requirements of ... any applicable State or local laws' (see note 4), which would include [§ ] 8-1-41 of the Alabama Code." [7] Hart has not filed a notice of appeal. [8] We assume, without deciding, that the sale of the mobile home substantially affected interstate commerce. Neither party contested that issue before the trial court, and neither party raises that issue on appeal. [9] The fact that the limitation-of-remedies provision contains both an arbitration provision and a choice-of-law provision ("This warranty... shall be governed by the laws of the State of Alabama.") does not render that provision internally inconsistent or ambiguous. In Mastrobuono, the United States Supreme Court interpreted a brokerage-account agreement that contained an arbitration provision and a choice-of-law provision in the same paragraph. See 514 U.S. at 54, 115 S. Ct. 1212. The first sentence of that paragraph provided that the entire agreement "shall be governed by the laws of the State of New York." Id. at 58-59, 115 S. Ct. 1212. The second sentence provided that "any controversy" arising out of the transactions between the parties "shall be settled by arbitration" in accordance with the rules of the National Association of Securities Dealers (NASD), or the boards of directors of the New York Stock Exchange and/or the American Stock Exchange. Id. at 59, 115 S. Ct. 1212. The authority of the arbitration panel to award punitive damages was challenged because, under New York law, the power to award punitive damages is limited to judicial tribunals and may not be exercised by arbitrators. See id. at 54-55, 115 S. Ct. 1212. Applying the federal policy favoring arbitration and state-law rules of contract construction, the Court held as follows: "We think the best way to harmonize the choice-of-law provision with the arbitration provision is to read `the laws of the State of New York' to encompass substantive principles that New York courts would apply, but not to include special rules limiting the authority of arbitrators. Thus, the choice-of-law provision covers the rights and duties of the parties, while the arbitration clause covers arbitration; neither sentence intrudes upon the other." Id. at 63-64, 115 S. Ct. 1212. Thus, in this case, the choice-of-law provision in the limitation-of-remedies paragraph provides for the application of Alabama substantive law in determining the merits of the parties' disputes, while the arbitration provision provides the procedure to be used in resolving those disputes. Moreover, even if the choice-of-law clause were interpreted as including Alabama substantive law, namely, Ala.Code 1975, § 8-1-41(3), and, thereby, to conflict with the arbitration provision, that statute would be preempted because it conflicts with the FAA. See Allied-Bruce Terminix Cos., 513 U.S. at 272-73, 115 S. Ct. 834; Volt Information Sciences, Inc., 489 U.S. at 477, 109 S. Ct. 1248. [10] Because the parties expressly agreed to be bound by the FTC regulations prohibiting the inclusion of a binding arbitration provision in a written warranty, and because we construe the written warranty not to require binding arbitration, we need not address Homes of Legend's argument that Southern Energy Homes, Inc. v. Lee, 732 So. 2d 994 (Ala.1999), was incorrectly decided and should be overruled. [11] Homes of Legend also argues that the Magnuson-Moss Act does not apply to its written warranty because, it says, a mobile, or manufactured, home is not a "consumer good" for purposes of the FAA, 15 U.S.C. § 2301(1), and that the Magnuson-Moss Act does not preclude enforcement under the FAA of a binding arbitration agreement contained in a written warranty. We do not decide those issues, because we interpret the arbitration provision not to foreclose McCollough ultimately from suing Homes of Legend. Homes of Legend also challenges the partial summary judgment entered in favor of McCollough. However, that issue is not properly before this Court, because the partial summary judgment is not a final, appealable judgment. See Precision American Corp. v. Leasing Serv. Corp., 505 So. 2d 380, 382 (Ala. 1987) (holding that the trial court's Rule 54(b), Ala. R. Civ. P., certification of its partial summary judgment on a single claim, leaving open the amount of damages, was erroneous; therefore, the appeal was dismissed for lack of jurisdiction, because there was no final judgment).

January 28, 2000

e4ecd498-3f61-4d45-a062-a5946121621b

Dickerson v. Deno

770 So. 2d 63

1981392, 1981393

Alabama

Alabama Supreme Court

770 So. 2d 63 (2000) Tonda DICKERSON v. Sandra DENO et al. Ex parte Tonda Dickerson. Re Sandra Deno et al. v. Tonda Dickerson et al. 1981392 and 1981393. Supreme Court of Alabama. February 18, 2000. Rehearing Denied April 28, 2000. Charles R. Driggars and Gary B. Holder of Sirote & Permutt, P.C., Birmingham, for appellant/petitioner Tonda Dickerson. Stephen E. Clements of Clute & Clements, P.C., Mobile; and Tristan R. Armer of Law Offices of Anna M. Williams, Grand Bay, for appellees/respondents Sandra Deno, Angie Tisdale, Matthew Adams, and Jackie Fairley. MADDOX, Justice. The parties to these proceedings dispute whether the holder of a winning Florida lottery ticket must share the winnings with others because of an alleged prior oral *64 agreement they all had made to share the winnings if any one of them was a winner. The trial court held that the one had to share the winnings with the others. The resolution of that question raises at least two legal questions: We conclude that the agreement constituted a contract "founded ... on a gambling consideration" and, therefore, that it was unenforceable; consequently, we reverse the judgment of the trial court and render a judgment for the defendant Tonda Dickerson. The facts are basically undisputed. The plaintiffsSandra Deno, Angie Tisdale, Matthew Adams, and Jackie Fairleyand the defendant Tonda Dickerson were all employees at the Waffle House restaurant in Grand Bay, Alabama. Edward Seward, who is not a party to this action, was a regular customer of the Waffle House. On several occasions Seward would travel to Florida and purchase lottery tickets and upon his return would give the tickets to various friends and family members, including the employees of the Waffle House. Seward did not expect to share any potential lottery winnings based on the tickets he gave away, but he claimed that he was promised a new truck by the employees of the Waffle House if one of the tickets he distributed there was a winning ticket. Several employees of the Waffle House received lottery tickets from Seward during the several weeks that he gave out the tickets. A drawing for the Florida lottery was scheduled for Saturday night, March 6, 1999. During the week before that drawing, Seward traveled to Florida and purchased several lottery tickets. He placed each individual ticket in a separate envelope and wrote the name of the intended recipient on the outside of the envelope. On March 6, 1999, before the lottery drawing, Seward presented the plaintiffs Deno, Tisdale, and Adams each with an envelope containing one lottery ticket. The drawing was held as scheduled. The numbers on the lottery tickets held by Deno, Tisdale, and Adams did not match the numbers drawn in the March 6 drawing. On March 7, 1999, after the March 6 drawing had already been concluded and the winning numbers had been determined, Seward presented a ticket to the plaintiff Fairley, who had never previously received a ticket from Seward; he also on that date presented the defendant Dickerson with a ticket. Each of those tickets was for the March 6 drawing, and each was presented in a separate envelope. Upon opening her envelope, Fairley determined that the numbers on her ticket did not match the winning numbers. Subsequently, Dickerson opened her envelope and determined that the numbers on her ticket matched the winning numbers drawn in the lottery the night before. The ticket won a prize of approximately $5 million.[1] Shortly thereafter, on March 18, 1999, the plaintiffs sued Dickerson, alleging that they and Dickerson had orally contracted with each other that if any one of them should win, then the winner would share any lottery winnings with the other ticket recipients. The plaintiffs asked the court to issue a preliminary injunction enjoining distribution of the winnings until a declaration of their rights could be made, and on March 19, 1999, the trial court ordered all *65 parties to refrain from any further efforts or attempts to collect any funds from the State of Florida Department of Lottery that were, or might be, the subject of a dispute between the parties. This order remained in effect throughout the trial of the case. The plaintiffs sought to have the alleged oral agreement specifically performed, and they also asked the trial court to declare that a constructive trust had been created by the parties. Dickerson filed a motion to dismiss the complaint, with an accompanying brief, and she later filed an answer. In the motion and in the answer, she alleged that enforcement of any oral agreement would be barred by the Statute of Frauds. She also averred that any oral agreement made by the parties was a gambling contract and could not be enforced under Alabama law. The trial court refused to dismiss the complaint. Instead, it ordered that the case be tried before an advisory jury on the plaintiffs' claim for declaratory relief. Following the trial, the advisory jury returned a verdict for the plaintiffs, and the trial court entered a final judgment in the plaintiffs' favor. It issued a written order holding that there was an oral contract and that each party was entitled to 20% of the proceeds of Dickerson's Florida lottery ticket. Dickerson appeals. Dickerson argues on appeal that the alleged oral agreement testified to by the plaintiffs was unenforceable because, she says, it lacked the necessary elements of a valid and enforceable contract. She also argues that, assuming, arguendo, that the alleged oral agreement did have all the elements ordinarily necessary for a contract, it was void as a gambling contract, because, she argues, it was an agreement made in Alabama and § 8-1-150 specifically provides that "[a]ll contracts founded in whole or in part on a gambling consideration are void." The plaintiffs make several arguments, including: (1) that this Court must apply the ore tenus rule of review because much of the testimony was presented orally to the trial court, and that under that rule the trial court's findings of fact are presumed to be correct; (2) that Dickerson waived her defenses based on the proposition that the contract was unenforceable, because she did not raise those defenses in the trial court; and (3) that other jurisdictions have held that agreements to share lottery winnings are enforceable and do not violate public policy. We have examined the plaintiffs' arguments and have thoroughly reviewed the record. However, we agree with Dickerson that she presented to the trial court each of the issues that she argues on appeal. Dickerson argues at some length that the plaintiffs failed to prove that the parties made an oral agreement. However, we conclude that the parties presented sufficient evidence to support a finding that the parties did orally agree that if any one of them should win the lottery, then they all would divide the proceeds. But, assuming they entered into such an agreement, was that agreement void and unenforceable as a "contract[] founded ... on a gambling consideration"? See Ala.Code 1975, § 8-1-150. We now address the parties' arguments on that question. The plaintiffs concede that § 8-1-150 seeks to prohibit the enforcement of any payment for actual wagering or gambling, or on games of chance, but they argue that the oral agreement in this case is not void, because, the contend, "[a]n agreement to share proceeds from a legal winning lottery ticket is simply not a wager between the parties to the agreement in the State of Alabama." They cite several cases they contend support their argument that the oral agreement made in this case was not founded on a gambling consideration. They first cite Talley v. Mathis, 265 Ga. 179, 453 S.E.2d 704 (1995), as being a "strikingly similar case." In that case, the complaint alleged that two friends, both residents of Georgia, had agreed to jointly purchase tickets from the State of Kentucky *66 lottery and to share the proceeds if they won. Mathis made the same argument in that case that Dickerson makes here: that the alleged agreement was against the public policy of the State where it was made and therefore was unenforceable. The Georgia Supreme Court, as the plaintiffs correctly argue, not only held that the alleged agreement would not violate Georgia public policy but stated that "the public policy of this state would be violated if appellant were denied the opportunity to seek to enforce the alleged agreement against appellees." 265 Ga. at 181, 453 S.E.2d at 706. The plaintiffs also argue that the facts of Talley are similar to the facts in Gipson v. Knard, 96 Ala. 419, 11 So. 482 (1892), because in both cases the parties were joint owners of out-of-state lottery tickets. In further support of their argument for the validity of the oral agreement, the plaintiffs cite Pearsall v. Alexander, 572 A.2d 113 (D.C.1990), which the District of Columbia Court of Appeals described as "the story of two friends who split the price of a lottery ticket only to have the ticket win and split their friendship." 572 A.2d at 114. In Pearsall, the court held that the agreement did not constitute a gambling contract. The plaintiffs also cite Kaszuba v. Zientara, 506 N.E.2d 1 (Ind.1987); Miller v. Radikopf, 394 Mich. 83, 228 N.W.2d 386 (1975); Pineiro v. Nieves, 108 N.J.Super. 51, 259 A.2d 920 (1969); Campbell v. Campbell, 213 A.D.2d 1027, 624 N.Y.S.2d 493 (1995); Stepp v. Freeman, 119 Ohio App.3d 68, 694 N.E.2d 510 (1997); Welford v. Nobrega, 411 Mass. 798, 586 N.E.2d 970 (1992), and Fitchie v. Yurko, 212 Ill.App.3d 216, 570 N.E.2d 892, 156 Ill.Dec. 416 (1991). Dickerson answers the plaintiffs' argument by contending that "[e]very case cited by plaintiffs in support of their argument involves, unlike the instant case, the issue of whether jointly purchased and jointly held lottery tickets are enforceable." Dickerson says that "[t]he parties in those cases did not attempt to increase their odds of winning the foreign lottery by entering into a separate contract with each other" and that "the cases cited by plaintiffs generally hold that individuals may cross state lines and jointly purchase a lottery ticket in a state where such lotteries are legal, and the parties may enforce their rights in the jointly owned ticket," but, she says, "[that] fact situation is not present in this case." Dickerson further points out that in the cases cited by the plaintiffs the courts relied heavily on the fact that the parties did not gamble among themselves, but, rather, jointly gambled with a foreign lottery. Dickerson notes that in Talley the court specifically pointed out that the complaint alleged that "the ticket was legally purchased with joint funds in Kentucky," 265 Ga. at 180, 453 S.E.2d at 705, and that in Gipson v. Knard the transaction alleged was a joint purchase of lottery tickets in New Orleans. In her concluding argument, Dickerson says: We agree with Dickerson that the facts in this case show that there was no agreement to jointly purchase or to jointly hold the lottery tickets. Each lottery ticket was purchased by Seward in Florida and was presented by him to one or the other of the parties, separately. The alleged oral contract in this case was an exchange of promises to share winnings from the parties' individually owned lottery tickets upon the happening of the uncertain event that the numbers drawn in the Florida *67 lottery matched the numbers on one of the tickets held by the five individuals. Consequently, the agreement between the parties was nothing more than an attempt by each of the five lottery-ticket holders to increase his or her odds of winning some portion of the Florida lottery. Stated differently, the agreement, according to the plaintiffs' own evidence, was that Dickerson would pay the plaintiffs a sum of money upon the happening of an uncertain event over which no party had control, that is, upon Dickerson's ticket winning the Florida lottery. Consequently, we conclude that the agreement at issue here was "founded ... on a gambling consideration," within the meaning of that phrase in § 8-1-150 and that it was, therefore, void. The judgment of the trial court is due to be reversed and a judgment rendered for the defendant Dickerson. Because of the judgment we enter on the appeal, the issue Dickerson raised in her petition for the writ of mandamus is moot.[2] 1981392 (the appeal)REVERSED AND JUDGMENT RENDERED. 1981393 (the mandamus petition) DISMISSED AS MOOT. HOUSTON, SEE, LYONS, and BROWN, JJ., concur. JOHNSTONE and ENGLAND, JJ., dissent. JOHNSTONE, Justice (dissenting). I respectfully dissent. The substance of the agreement among the parties is that each agreed that the lottery ticket held by him or her was jointly owned by all the parties. The consideration to each of the parties for his or her agreement in this regard consists of the mutual agreements to the same effect made by all of the other parties. That is, each party received the acknowledgment of each other party that such other's ticket was jointly owned by all the parties. The consideration consisted not of the uncertain event (the lottery) or the possible winnings from the lottery but rather of the mutual agreements among the parties. Likewise, none of the parties agreed to pay money upon the happening of the uncertain event; but, rather each agreed to acknowledge the joint ownership of his or her ticket by all the parties regardless of the happening of the uncertain event. Thus the agreement, or contract, at issue is not "founded in whole or in part on a gambling consideration" as outlawed by § 8-1-150, Ala.Code 1975. Accordingly, the judgment of the trial court should be affirmed. ENGLAND, J., concurs. [1] The total prize awarded for the March 6, 1999, Florida lottery was $10 million. However, two winning tickets were presented for that award. [2] In Dickerson's mandamus petition, filed in this Court on May 28, 1999, she raised only one issue: Whether postjudgment interest, in an amount equal to approximately $1,300 per day, should have been accruing against her.

February 18, 2000

9a35bcd9-78da-4254-ad7f-4da26eba2210

Ex Parte Employees'retirement System Bd.

767 So. 2d 331

1971724

Alabama

Alabama Supreme Court

767 So. 2d 331 (2000) Ex parte EMPLOYEES' RETIREMENT SYSTEM BOARD OF CONTROL and the Employees' Retirement System of Alabama. (In re Employees' Retirement System Board of Control and the Employees' Retirement System of Alabama v. Adavier Debbie Williford.) 1971724. Supreme Court of Alabama. January 21, 2000. *332 William F. Kelley, Jr., assoc. counsel, Employees' Retirement System of Alabama, Montgomery, for petitioners. Charles H. Volz III of Volz, Prestwood & Hanan, P.C., Montgomery, for respondent. LYONS, Justice. The Employees' Retirement System Board of Control and the Employees' Retirement System of Alabama (together referred to as "ERS") appealed to the Court of Civil Appeals from a judgment entered by the trial court in favor of Adavier Debbie wILLIFORD, THE WIDOW OF A RETIRED STATE employee. The Court of Civil Appeals, on April 17, 1998, affirmed, without an opinion. Employees' Retirement System Board of Control v. Williford, (No. 2970169), 740 So. 2d 492 (Ala.Civ.App.1998) (table). We granted ERS's petition for certiorari review. We reverse and remand. Adavier Debbie Williford, the widow of James W. Williford, filed this action against ERS after it had denied her request to posthumously change his retirement-benefits election. Mr. Williford had worked for the State of Alabama for approximately 16 years before he retired on January 1, 1993. While working for the State, he made contributions to ERS and participated in a deferred-compensation plan and a life-insurance plan administered by the Public Employees Benefit Service Corporation ("PEBSCO"), one of the administrators of the State of Alabama Deferred Compensation Plan. Upon his retirement, Mr. Williford was entitled to choose an ERS retirement-benefits package. ERS supplied Mr. Williford with a retirement-benefits-election form, listing four choices: a maximum retirement allowance and options 1, 2, and 3. Under the maximum retirement allowance, the ERS member receives monthly payments that are higher than the payments available under any of the three options, but the payments cease at the member's death. Under option 1, the member's designated beneficiary receives a lump-sum *333 payment if the member dies before he has received all the money from his retirement account. Under option 2, the designated beneficiary receives the same monthly payment the member received before his death. Under option 3, the member receives a larger monthly payment during his life, and his designated beneficiary receives one-half that monthly payment after the member's death. See § 36-27-16(d), Ala.Code 1975. In September 1995, ERS supplied Mr. Williford with a list of "retirement-allowance estimates." That document stated the benefits available to him under each option.[1] On December 9, 1992, Mr. Williford completed his retirement-benefits-election form; he elected the maximum retirement allowance. This allowance paid him $851.37 per month during his lifetime and provided his designated beneficiary only a pro rata portion of the benefits due to him for the month in which he died, without any benefits to his designated beneficiary. Mr. Williford signed the election form and had it notarized. On December 14, 1992, ERS sent him a letter confirming his election of the maximum retirement allowance.[2] Mr. Williford died on October 1, 1995. In December 1995, when Mrs. Williford discovered that he had selected the maximum retirement allowance instead of option 1, she asked ERS to change his election to option 1 because, she said, he had meant to check option 1. ERS denied her request. She then petitioned for judicial review of the final decision of ERS. Mrs. Williford alleged that her husband had been suffering from the effects of hepatic encephalopathy when he elected his retirement benefits and that this disease had affected his reasoning ability. One of Mr. Williford's physicians, Dr. Wayne Anderson, testified that hepatic encephalopathy can cause loss of memory and confusion. Another physician, Dr. James McLaughlin, testified that he first saw evidence of mental impairment in Mr. Williford in late 1993. Dr. McLaughlin also stated that there was a high probability that in late 1992 Mr. Williford was suffering from a brain dysfunction as a result of hepatic encephalopathy. Several of Mr. Williford's coemployees testified that they had noticed a decline in his mental condition before he retired; however, he earned the highest possible rating on his job-performance review in 1992. Mrs. Williford testified that her husband had told her on several occasions that he intended to elect option 1, and she claimed that he chose the maximum retirement allowance by mistake. However, ERS's director of benefits testified that, as far as he knew, neither Mr. Williford nor Mrs. Williford contacted ERS during Mr. Williford's lifetime to contest the amount of retirement benefits he was receiving. Kathleen Hendricks, the PEBSCO representative who assisted Mr. Williford with his retirement planning, testified that he told her several times that he intended to elect option 1. Hendricks testified that she discussed the various retirement options with him and that they decided he should elect option 1. Hendricks testified that she did not have any concerns about Mr. Williford's mental ability when he completed his retirement forms. However, neither Mrs. Williford nor Hendricks assisted Mr. Williford when he completed his retirement benefit forms. The trial court entered a judgment for Mrs. Williford, finding that Mr. Williford had elected the maximum retirement allowance by mistake. The court concluded that when Mr. Williford made his election he was suffering from the effects of hepatic encephalopathy and that he had lost some of his intellectual and reasoning capacity as a result of his illness. The trial court awarded Mrs. Williford $16,993.59, the amount of the balance in Mr. Williford's retirement account at the time of his *334 death, plus interest from that date. ERS filed a motion to alter, amend, or vacate the judgment. The trial court granted that motion to the extent of reducing the amount of the judgment by $1,484.67 plus interest. ERS contends that the Court of Civil Appeals' affirmance of the trial court's judgment for Mrs. Williford conflicts with this Court's decision in Employee's Retirement System of Alabama v. McKinnon, 349 So. 2d 569 (Ala.1977). In that case, McKinnon, like Mr. Williford, elected the maximum retirement allowance when completing his retirement-benefits-election forms. After his death, McKinnon's widow and son filed an action against the Teachers' Retirement Systems ("TRS"),[3] alleging that McKinnon had mistakenly elected the maximum retirement allowance and that they were entitled to a retirement benefit under option 3. In the alternative, they argued that McKinnon had mistakenly believed that the maximum retirement allowance would be paid to his son, his designated beneficiary, upon his death. McKinnon is distinguishable from this case because McKinnon changed his retirement-benefits election on one of the two forms he completed, copies of which are published with this Court's opinion as appendices. On his application for service retirement, McKinnon initially marked the box beside the election that stated: "I desire the maximum allowance payable during life, with all benefits to cease at my death." That mark is crossed out, and an "X" is marked in the box beside the election that stated: "Please send me figures indicating the approximate amount of my allowance under the provision of Option 1." 349 So. 2d at 573-74. However, on the form entitled "Member's Election of Retirement Benefits," McKinnon placed an "X" in the box beside "Maximum Retirement Allowance." Id. at 575. In McKinnon, the trial court reversed TRS's decision that McKinnon's election of the maximum retirement allowance was binding, and it ordered TRS to pay McKinnon's beneficiaries a lump-sum benefit equal to his contributions and interest in the fund. This Court reversed and remanded. In reversing, this Court specifically noted that it was not determining whether McKinnon had been mistaken when he marked the box asking for the maximum retirement allowance. This Court held that McKinnon's widow and son were not precluded from showing that McKinnon had intended to elect an option other than the maximum retirement allowance, and that ERS was not precluded from showing that he had intended to elect the maximum retirement allowance. McKinnon states that the Board of Control "should try to ascertain the intent of its members when they apply and [to] carry out that intent, if allowed by law, so that the members will receive all benefits provided by law." 349 So. 2d at 574 (emphasis in original). We agree that ERS should carry out its members' intent. Once a recipient has made a benefit election, however, if that election is clear on its face then ERS should be able to rely on that election. In this case, Mr. Williford's intent is clear from the face of his "Member's Election of Retirement Benefits" form.[4] He clearly marked only the box labeled "Maximum Retirement Allowance." When ERS receives a clear and unambiguous election-of-benefits form, we will not require ERS to look beyond the face of the form. This Court has applied this principle in cases involving other documents. This Court has stated that in interpreting a will "[e]xtrinsic evidence is not admissible to vary, contradict or add to the plain and unambiguous language of the will." *335 Cook v. Morton, 254 Ala. 112, 116, 47 So. 2d 471, 474 (1950). This Court often has stated that it will not look beyond the four corners of an instrument unless the instrument contains latent ambiguities. Martin v. First Nat'l Bank of Mobile, 412 So. 2d 250, 253 (Ala.1982). Mr. Williford's benefits-election form was unambiguous, and ERS carried out what appears to have been his clearly stated intent. Another fact distinguishing McKinnon from this case is that TRS sent McKinnon the form that contained retirement-allowance estimates and the form for him to indicate which retirement-benefits package he elected. After the effective date of McKinnon's retirement, the secretary-treasurer of TRS sent him a letter containing tax information and other information regarding his retirement benefits. Id. We can find no indication that anyone from TRS personally explained to McKinnon the retirement-benefits choices. In this case, however, employees of ERS met with Mr. Williford and explained the retirement choices available to him. Hendricks testified that she met with Mr. Williford several times before he retired and discussed with him the retirement choices available. Hendricks testified that she also met with Mr. and Mrs. Williford two or three times a year between 1990 and his retirement on January 1, 1993. Mr. Williford had numerous opportunities to ask questions of Hendricks. Hendricks said she and Mr. Williford discussed at length the differences between the maximum retirement allowance and option 1. Therefore, we hold that ERS was entitled to rely on the form indicating that Mr. Williford had elected the maximum retirement allowance.[5] We realize that this decision does not help Mrs. Williford. Nevertheless, we cannot sustain a posthumous challenge to a clear, unambiguous election of retirement benefits. To permit a surprised, disappointed, or disgruntled beneficiary to change an ERS member's retirement-benefits election that is clear on its face, after events have made the election undesirable, would wreak havoc on the retirement system. We reverse the judgment of the Court of Civil Appeals, and we remand the cause for an order or proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] See Appendix A. [2] See Appendix B. [3] The Retirement System of Alabama includes both the Employees' Retirement System and the Teachers' Retirement System. See § 36-27-3, Ala.Code 1975. [4] See Appendix C. [5] In light of this decision, we need not discuss any of ERS's other arguments.

January 21, 2000

3f8352bf-287c-41e7-8e03-7cfccec632b1

McCrary v. REF Alabama, Inc.

757 So. 2d 421

1980698

Alabama

Alabama Supreme Court

757 So. 2d 421 (2000) Timothy McCRARY v. REF ALABAMA, INC. 1980698. Supreme Court of Alabama. January 21, 2000. Lawrence T. King of Goozé, King & Horsley, Birmingham; and Joseph G. Stewart, Jr., Montgomery, for appellant. J. McGowin Williamson of Williamson & Williamson, Greenville, for appellee. LYONS, Justice. Timothy McCrary appeals from a summary judgment entered in favor of REF Alabama, Inc., on McCrary's claim of retaliatory discharge. We reverse and remand. McCrary was employed by REF for over 10 years. He hurt his back at work on July 11, 1995. He underwent extensive medical treatment and was released by his doctor to return to work on January 24, 1996. McCrary claims that when he returned to work on January 24, REF fired him, even though, he says, he was physically able to do his job when he returned. *422 REF claims that McCrary was merely "laid off," but McCrary says the "layoff" involved only him and one other employee, both of whom, he says, had sought workers' compensation benefits. McCrary then filed for unemployment compensation benefits, and he received them for approximately six months. McCrary sued REF, seeking workers' compensation benefits and seeking damages on a claim that he had been discharged in retaliation for having filed a workers' compensation claim.[1] The parties settled the workers' compensation portion of McCrary's action in June 1996. McCrary's condition later worsened, requiring further back surgery. He applied for Social Security disability benefits in September 1996; those benefits were awarded in March 1998, retroactive to January 1, 1996, three weeks before the "layoff." REF moved for a summary judgment on the retaliatory-discharge claim, contending that because the Social Security Administration had determined that McCrary was disabled, he could not show that he was "willing and able to return to work" and thus should not be allowed to recover on his retaliatory-discharge claim. The trial court entered a summary judgment for REF in January 1999.[2] The sole issue on appeal is whether, in a retaliatory-discharge claim, the plaintiff's prima facie case requires a showing that he was willing and able to return to work. In Bleier v. Wellington Sears Co., 757 So. 2d 1163 (Ala.2000), also released today, we traced the history of Alabama's retaliatory-discharge statute and the Court of Civil Appeals' conclusion that an employee must prove, as a part of a prima facie case in a retaliatory-discharge action, that he or she was willing and able to return to work. See Consolidated Stores, Inc. v. Gargis, 686 So. 2d 268 (Ala.Civ.App.), cert. denied, 686 So. 2d 278 (Ala.1996). In Bleier, we overruled Gargis and its progeny,[3] holding as follows: 757 So. 2d at 1171. In accordance with our holding today in Bleier, we hold that McCrary is not required (as an element of his prima facie case) to prove that when he was discharged by REF he was willing and able to return to work. The question whether McCrary made a sufficient showing as to those elements that are part of his prima facie case was not raised below and is not before us. McCrary obtained Social Security Disability Insurance ("SSDI") benefits as a result of a Social Security Administration ("SSA") determination of disability, a determination made retroactive to a point three weeks before the "layoff." REF argues that this fact estops him from pursuing his retaliatory-discharge claim. McCrary contends that a determination that he was entitled to unemployment benefits estops REF from challenging his *423 ability to work. However, the SSA determination and the determination of entitlement to unemployment benefits are not relevant to the sole issue before us, because of our holding that the question of disability is not relevant to McCrary's prima facie case. Although questions of an employee's willingness and ability can be relevant when the employer relies on a claim that the employee was unwilling or unable to work at the time of termination, REF contends that McCrary was laid off "due to a lack of work." Indeed, at the time of the layoff it is undisputed that REF could not have known that McCrary was disabled. That McCrary showed up and asked for work is also undisputed, so the claim of unwillingness is not relevant as a defense. The employee's willingness and ability will be relevant in the event McCrary, on remand, claims damages for lost wages. McCrary argues that Wal-Mart Stores, Inc. v. Smitherman, 743 So. 2d 442 (Ala. 1999), bolsters his claim that a determination that he was entitled to unemployment benefits estops REF from challenging his ability to work. REF responds by arguing that the record is inadequate to support a ruling on that issue. McCrary also contends that Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S. Ct. 1597, 143 L. Ed. 2d 966 (1999), applying the Americans with Disabilities Act and requiring a plaintiff to explain any apparent inconsistency between positions in order to avoid an estoppel, should inform our judgment as to the effect of an SSA determination on his right to recover. The trial court apparently based the summary judgment on a conclusion that the SSA determination had a preclusive effect. Although the same issues may arise if McCrary seeks damages for wages lost during a period for which he has sought and received SSDI benefits, we decline to anticipate that event at this stage of the proceedings, without the benefit of a full record dealing with these issues. We reverse the summary judgment in favor of REF and remand the cause for further proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, and JOHNSTONE,[*] JJ., concur. [1] Section 25-5-11.1, Ala.Code 1975, prohibits an employer from discharging an employee "solely because the employee has instituted or maintained any action against the employer to recover workers' compensation benefits." [2] In entering the summary judgment, the court did not specify the reasons for its decision. [3] In addition to Gargis, we overruled Gordon v. J.B. Hunt Transport, Inc., 744 So. 2d 942 (Ala.Civ.App.1999); Chapman v. Boise Cascade Corp., 726 So. 2d 729 (Ala.Civ.App.1999); Hammock v. Ryder Dedicated Logistics, Inc., 716 So. 2d 215 (Ala.Civ.App.1998); Alexander v. Pace Indus., Inc., 710 So. 2d 450 (Ala.Civ. App.1997); Rice v. Bruno's, Inc., 705 So. 2d 486 (Ala.Civ.App.1997); Watwood v. White Consol. Indus., Inc., 699 So. 2d 210 (Ala.Civ. App.1997); and Lambert v. Beverly Enterprises, Inc., 695 So. 2d 44 (Ala.Civ.App.1997). See Bleier v. Wellington Sears Co., 757 So. 2d at 1168. [*] Although Justice Johnstone did not sit at oral argument of this case, he has listened to the tape of oral argument.

January 21, 2000

c583399c-1bd3-428e-b362-b810a1b8e335

Ex Parte City of Dothan Personnel Bd.

791 So. 2d 353

1980832

Alabama

Alabama Supreme Court

791 So. 2d 353 (2000) Ex parte CITY OF DOTHAN PERSONNEL BOARD. (Re City of Dothan Personnel Board v. Bethany C. Harrison and Crystal Shelley). 1980832. Supreme Court of Alabama. January 21, 2000. *354 Carol Sue Nelson and Tammy L. Dobbs of Constangy, Brooks & Smith, L.L.C., Birmingham, for petitioner. Matthew C. Lamere, Dothan, for respondents. MADDOX, Justice. This case involves a question whether the City of Dothan Personnel Board followed proper procedures in hiring a person who was not on the promotional list maintained by the City. In early 1996, the Dothan fire chief's administrative assistant announced that she planned to retire, giving a few months' notice. The dispute giving rise to this present case grew out of the City's efforts to fill the job opening created by the administrative assistant's retirement. Jerry Gwaltney, the city manager, viewed hiring a replacement as an emergency, because the retiring employee was the only person in the City's Fire Department who knew how to manage the Department's payroll. Gwaltney decided that the City should hire a replacement immediately, so that the new employee would be on the job for as long as possible for training by the retiring employee. The City maintains a register, or list, of its current employees who have qualified for promotion to the level of administrative assistant. When Gwaltney began looking for someone to hire for the Fire Department position, the top two candidates on that register declined interviews. During that period, Gwaltney was also in the process of hiring a new fire chief. He concluded that the best course would be to hire someone to serve in the administrative-assistant position for six months, so that the new fire chief could make his own decision about whom to hire on a permanent basis. Gwaltney advertised the job opening in community publications. Essie Ashley applied. Gwaltney determined that, of the candidates remaining on the promotion register (after the top two had declined interviews) and the applicants who had applied as a result of the published job notice, Ashley was the person most qualified for the job. Ashley had a degree in secretarial science and a degree in computer-information science. Ashley also had been an administrative assistant for a department manager at a facility operated by the Michelin tire company, for 16 years. Her duties in her job with Michelin had included handling payroll reports. Ashley was recommended by her references at Michelin for the administrative-assistant job because she had strong office-management and accounting skills. Consequently, Gwaltney hired Ashley on a provisional basis. After the new fire chief was hired, he elected to retain Ashley on a permanent basis. When the administrative-assistant position became available, Bethany C. Harrison and Crystal Shelley were already city employees, and they had been listed on the promotion register. They filed grievances with the City of Dothan Personnel Board, alleging that Gwaltney had violated the City's rules and regulations by hiring an outside applicant rather than an applicant from the promotion register. The Board held a hearing on the matter, at which the following facts were presented: Harrison had begun her second period of employment with the City in 1986. Her first *355 period of employment had ended in 1983, when she resigned after engaging in insubordinate conduct and walking off the job. Since returning to work for the City in 1986, she had been "written up" and had been counseled for errors in her work. Also, during her interview with the new fire chief, Harrison described the personnel director as an "out-and-out liar" and questioned the city manager's authority and intentions. Shelley was employed as an administrative secretary for the City's Leisure Services Department and had been employed by the City for 10 years. She became employed by the City in 1986 while she was a high-school student. She became a full-time employee in 1987 and was working as a secretary for the manager of the Dothan Civic Center. Her duties included registering softball teams, collecting money for the teams, and depositing money in the bank. She had attended college for one year. Following the hearing and based upon the evidence presented at that hearing, the Board found that Harrison and Shelley had "failed to present a substantial amount of evidence that supports the [finding of a] violation of the Personnel Rules and Regulations and the Civil Service Act in filling the vacancy of Administrative Assistant in the Fire Department." Furthermore, Darryl Mathews, the City's equal-employment-opportunity officer, reviewed the circumstances surrounding Ashley's hiring and found nothing improper. After the Board denied their grievances, Harrison and Shelley appealed to the Houston County Circuit Court. The circuit court entered a judgment reversing the Board's order. The circuit court stated in its judgment: The Board appealed from the circuit court's judgment. The Court of Civil Appeals, by a 3-2 vote, affirmed. That court held: City of Dothan Personnel Bd. v. Harrison, 791 So. 2d 348 (Ala.Civ.App.1998). We granted the Board's petition for certiorari review. The Board argues that the decision of the Court of Civil Appeals is in conflict with Mobile County Merit System Employee's Ass'n v. Mobile County Personnel Board, 669 So. 2d 178 (Ala.Civ.App. 1995), and Mobile Fire Fighters Ass'n v. Personnel Board of Mobile County, 720 So. 2d 932 (Ala.Civ.App.1998). See Rule 39(c)(4), Ala. R.App.P. In those cases, the Board argues, the Court of Civil Appeals recognized that the Mobile County Personnel Board, operating under rules similar to those of the board involved in this case, had no less discretion in filling a position above entry level than it would have in *356 filling an entry-level position. In this case, the Board argues, its rules (quoted infra), provide it with broad discretion in filling job vacancies, even more so than the rules and the statute considered by the Court of Civil Appeals in the two Mobile County cases cited above. The Board contends that the requirement that it fill a position with "the most qualified personnel available" and the requirement that jobs be filled by promotion "insofar as practicable" provide it with the discretion to fill a vacancy in the way it did in this case. The Board also argues that Harrison and Shelley did not present to the Board substantial evidence justifying a conclusion that the City had acted arbitrarily and capriciously in filling the job of administrative assistant. Accordingly, the Board asserts, the circuit court erred in reversing the Board's order, and the Court of Civil Appeals erred in affirming the judgment of the circuit court. Our review of cases like this one is limited. Indeed, our review is the same as that of the circuit court and the Court of Civil Appeals. The decision of an administrative agency will be affirmed unless the appellant can prove that the agency acted in an arbitrary and capricious manner or failed to comply with the applicable law. Ex parte Personnel Bd. for Mobile County, 637 So. 2d 888, 889 (Ala.1994). The Board's decision "must be affirmed if there is substantial evidence to support the [Board's] findings." Id. Do the "Civil Service Act of Dothan" and the rules of the Dothan Personnel Board provide the City discretion to hire from the outside where it is not practicable to promote a current city employee? The circuit court and the Court of Civil Appeals appear to have based their decisions on a conclusion that the City's personnel rules and regulations require that where current city employees are listed on the register of persons qualified for a vacant position, the job must be filled by one of those current employees listed on the register. We disagree with that conclusion. Section 14 of the "Civil Service Act of Dothan," as amended by Act No. 92-442, Ala. Acts 1992, reads: (Emphasis added.) Section 17 of the "Civil Service Act of Dothan" reads: The City's personnel rules contain the following provisions: (Emphasis added.) We find that the provisions quoted here (from the Act and the rules) mirror the provisions in the two Mobile County cases cited above. For example, Policy 9.1, Local Act No. 470, as set out in Mobile County Merit System Employee's Ass'n, 669 So. 2d at 179, reads: (Emphasis added.) Furthermore, Section XIV of Local Act 470 reads: (Emphasis added.) These provisions are almost identical to Section 14(b) of the City of Dothan's Civil Service Act. The Court of Civil Appeals stated in Mobile County Merit System Employee's Ass'n *358 that "the language of the rules and regulations of the Personnel Board [supported its conclusion] that deciding whether to use an open competitive procedure or to use a promotional procedure is a discretionary function of the Personnel Board, to be undertaken with the best interests of the merit system in mind." 669 So. 2d at 179-80. The Court of Civil Appeals concluded in that case that the Mobile County Personnel Board did not violate its rules and regulations in filling a vacancy by competitive examination of all applicants instead of by promotion solely from employees of the Mobile Housing Authority. Id. at 180. Like the provisions involved in Mobile County Merit System Employee's Association, the provisions of the City of Dothan's Civil Service Act in this case provide discretionary authority, subject to an abuse of discretion, to fill vacancies "insofar as practicable" from the "appropriate promotional register." See Civil Service Act, § 14(b), supra. Dothan's personnel rule 2-60(4) provides that "[i]f an insufficient number of City employees in the Classified Service are interested in and/or qualified," then the Board has the discretion to fill a vacancy or vacancies from a pool of qualified applicants who are not on the promotional register. Rule 2-60(6) provides that after the Board or the department head conducts interviews, "the department head shall examine the merits of all applicants and select the person who best meets the job requirements." Providing this discretion advances "the policy of the City of Dothan to fill classified positions with the most qualified personnel available." Rule 2-60(3), supra. We conclude that the language of Dothan's Civil Service Act and the rules of its Personnel Board provide the City discretion to hire from the outside where it is not practicable to promote a current city employee. Having determined that the City has discretion to hire from the outside where it is not practicable to promote a current city employee, we must determine whether there was substantial evidence before the Board to support the appointment at issue in this case. Based upon the evidence presented to the Board at the grievance hearing, we conclude that the Board had before it substantial evidence indicating that the City's appointment of Ashley was proper. Therefore, the circuit court erred in reversing the Board's order and the Court of Civil Appeals erred in affirming the circuit court's judgment. In conclusion, we hold that the language of Dothan's Civil Service Act and the rules of its Personnel Board provide the City with discretion to hire from the outside where it is not practicable to promote a current city employee. We also hold that the Board had before it substantial evidence indicating that the City's appointment of Ashley to the position of administrative assistant was proper. Therefore, we reverse the judgment of the Court of Civil Appeals and remand the case for proceedings consistent with this opinion. REVERSED AND REMANDED. HOUSTON, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., dissents. JOHNSTONE, Justice (dissenting). Ashley was appointed instead of Harrison and Shelley under the provisional appointments provisions of the Civil Service Act of Dothan, as amended by 1992 Ala. Acts No. 92-442. Section 14(a) of that Act allows a provisional appointment only "[i]n the event the requested number of eligibles[, *359 three,] cannot be certified to the appointing authority" from "the most appropriate register" of current employees. Section 17 of the same Act allows provisional appointments only "[w]henever in the opinion of the [city's personnel] director it is impossible within a reasonable time to certify eligible persons for appointment to a vacancy in the classified service." In fact, Shelley, Harrison, and a third "eligible" had already been certified from the register, which contained still more "eligibles" as well, before the director and the appointing authority began the provisional appointment process. Thus, their use of the provisional appointment process violated the provisions of the Act. The hard evidence is that both Harrison and Shelley were fully qualified. In fact, they both ranked far above Ashley even on the general register established to allow consideration of candidates who had not already been employees. The Civil Service Act of Dothan expressly and specifically restricts the discretion of the City in filling vacancies. The personal preferences of some Dothan officials afford no exception to the statute. Finally, the facts, rules, and procedural postures of the cases interpreting the Mobile County Personnel Board Rules are too different from the facts, rules, and procedural posture of the case before us to serve as precedent for any leeway for the Dothan Personnel Board.

January 21, 2000

4f28295e-00f8-4ca0-8c0f-d994e23a7023

Ex Parte State Farm Fire and Casualty Co.

764 So. 2d 543

1981136

Alabama

Alabama Supreme Court

764 So. 2d 543 (2000) Ex parte STATE FARM FIRE AND CASUALTY COMPANY. (Re: State Farm Fire and Casualty Company v. Scott Hannig and Staci Hannig). 1981136. Supreme Court of Alabama. January 21, 2000. Micheal S. Jackson and Roderick N. Nelson of Beers, Anderson, Jackson, Nelson, Hughes & Patty, P.C., Montgomery, for petitioner. Michael K. Beard of Rives & Peterson, P.C., Birmingham, for respondents. Albert L. Jordan and Kimberly R. West of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for amicus curiae Blue Cross and Blue Shield of Alabama, in support of the petitioner. *544 MADDOX, Justice. This case involves a subrogation claim filed by an insurer against alleged tortfeasors to recover amounts it had paid to its insured. This Court granted certiorari review specifically to re-examine the rule that an insurer that has paid claims of its insured has no subrogation rights against a tortfeasor who harmed the insured until the insured is "made whole." That rule was established in Powell v. Blue Cross & Blue Shield of Alabama, 581 So. 2d 772 (Ala.1990), and its progeny, Sharpley v. Sonoco Products Co., 581 So. 2d 792 (Ala. 1990); McKleroy v. Wilson, 581 So. 2d 796 (Ala.1990); Peck v. Dill, 581 So. 2d 800 (Ala.1991); Complete Health, Inc. v. White, 638 So. 2d 784 (Ala.1994); Alfa Mut. Ins. Co. v. Head, 655 So. 2d 975 (Ala.1995); and GEICO Ins. Co. v. Lyons, 658 So. 2d 445 (Ala.1995).[1] State Farm Fire and Casualty Company ("State Farm") and its insured, Ken Belmore, sued Scott Hannig and Staci Hannig, alleging that the Hannigs were responsible for a fire that damaged a house that was owned by Belmore and insured by State Farm. State Farm sought to recover money it had paid to its insured under the terms of its policy insuring the house. The trial court granted the Hannigs' motion for summary judgment, and the Court of Civil Appeals affirmed the summary judgment. State Farm Fire & Cas. Co. v. Hannig, 764 So. 2d 538 (Ala.Civ. App.1999). For the reasons discussed below, we reverse the judgment of the Court of Civil Appeals, and we remand the case. In March 1994, Ken Belmore contracted with Scott and Staci Hannig for Belmore to buy the Hannigs' house. The parties closed the sale on May 18 of that year, but the contract allowed the Hannigs to remain in possession of the house until May 27. Belmore obtained insurance coverage on the house from State Farm; it became effective on the date of the closing. During the period after the closing but before Belmore took possession from the Hannigs, a fire caused substantial damage to the house. Belmore filed a claim for benefits under his insurance policy, and State Farm paid him $64,884.93. Subsequently, State Farm and Belmore reached an agreement concerning the practical implications of the subrogation provisions in Belmore's policy. They agreed that State Farm would obtain counsel to represent both State Farm and Belmore and that State Farm would pay all the costs of litigation to be instituted against the Hannigs. They agreed that Belmore would receive $5,250 of any recovery against the Hannigs. Of that amount, $5,000 was to compensate Belmore for the loss of use of his house, the cost he had incurred for temporary alternative housing, and the frustration he had endured while having his house repaired. The sum of $250 was to compensate Belmore for his $250 deductible. State Farm and Belmore sued the Hannigs. The Hannigs moved for a summary judgment against State Farm, arguing that State Farm had not fully made Belmore whole and therefore was not entitled to any subrogation damages. The trial *545 court granted that motion. Belmore subsequently settled with the Hannigs for $5,000, and the case was dismissed. State Farm appealed from the summary judgment, and the Court of Civil Appeals affirmed. We have granted State Farm's petition for certiorari review. It is apparent from a reading of the main opinion of the Court of Civil Appeals that although the Court of Civil Appeals followed the law as stated in Powell, two of its members thought Powell had been incorrectly decided by a plurality of this Court. That main opinion stated that this "court's plurality decisions in Powell and Sharpley were a sharp departure from [this] court's former position on the issue as set forth in International Underwriters/Brokers, Inc. v. Liao, 548 So. 2d 163 (Ala.1989), a unanimous decision of the court, released just one year earlier." 764 So. 2d at 542. Judge Thompson stated in the main opinion for the Court of Civil Appeals: Id. at 542 (emphasis added). We agree with Judge Thompson that in Powell a plurality of this Court did make a "sharp departure" from the law of subrogation that had previously existed in this State. In International Underwriters/Brokers, Inc. v. Liao, supra, this Court had held that the normal equitable rules of subrogation could be modified by contract,[2] but, as pointed out by Judge Thompson, this Court reversed course a year later in Powell and has continuously followed the Powell rationale in subsequent cases. As Judge Thompson's opinion concludes, and as State Farm recognizes, if we apply the Powell rationale to the facts and circumstances of this case, then we must conclude that the trial court and the Court of Civil Appeals reached the correct result. Recognizing that Powell does control if it is not modified or changed, State Farm argues that this Court should overrule Powell and reinstate the prior rule of Liao. Although we have a healthy respect for the principle of stare decisis, we should not blindly continue to apply a rule of law that does not accord with what is right and just.[3] In other words, while we *546 accord "due regard to the principle of stare decisis," it is also this Court's duty "to overrule prior decisions when we are convinced beyond ... doubt that such decisions were wrong when decided or that time has [effected] such change as to require a change in the law." Beasley v. Bozeman, 294 Ala. 288, 291, 315 So. 2d 570, 572 (1975) (Jones, J., concurring specially). What, then, are the competing interests in this case? On the one hand, the doctrine of stare decisis supports the Hannigs' argument that the trial court appropriately applied the rule of Powell and its progeny and that the judgment of the trial court should be affirmed. On the other hand, as Judge Thompson pointed out in this case, application of the Powell rule "confers an unjust benefit on [a] tortfeasor, who is permitted to escape responsibility for his or her wrongdoing." Hannig, 764 So. 2d at 542. Powell was decided eight years ago; it overruled Liao, which had been decided the previous year. We recognize that the doctrine of stare decisis supports the argument that Powell and its progeny should not be overruled. Based on the considerations stated above, however, we conclude that time has revealed the inherent inequity in applying the Powell rule; therefore, "we are convinced beyond ... doubt that [Powell and the other cases listed above that apply the Powell rule] were [wrongly] decided;"[4] that they should be overruled; and that the rule of Liao should be reinstated. In Liao, this Court asked and answered a question relating to the right of an insurer to be subrogated when it has paid a claim under the terms of a contract. The Court asked: Liao, 548 So. 2d at 165. The Court's answer was: Id., 548 So. 2d at 165-66. Applying that rule to the facts of this case, we conclude that the judgment of the Court of Civil Appeals is due to be reversed. We reverse that judgment, and we instruct the Court of Civil Appeals to reverse the summary judgment against State Farm and to remand the case for further proceedings consistent with this opinion. REVERSED AND REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and HOUSTON and SEE, JJ., concur. LYONS, J., concurs specially. COOK, JOHNSTONE, and ENGLAND, JJ., concur in the result but dissent from the rationale. LYONS, Justice (concurring specially). Unsatisfactory results can occur no matter how we deal with an insurer's right to contract out from under the general rule that prevents subrogation to the rights of the insured against a third party until the insured has been made whole.[5] On the *547 one hand, enforcing an insurer's contractual right to intercept funds recovered by the insured from the tortfeasor, regardless of whether the insured has been made whole, allows an insurer to reimburse itself for sums previously paid to the insured under the terms of its obligation to the insured, at the expense of the insured's right to full compensation for a loss or injury. Yet, on the other hand, insisting upon an insured's being made whole as a prerequisite to the insurer's right to subrogation permits a tortfeasor to escape accountability where an insurance policy compensates the victim for only a part of his loss. My awareness of a problem does not overcome my concern for the proper source for the solution. This Court generally has three options for dealing with an offensive contractual provision: Another option available in this particular case would be to determine which version of the subrogation rule is the lesser of evils, to define the doctrine of equitable subrogation in accordance with that version, and then to announce that any contractual deviation therefrom is void, on grounds of public policy. Powell v. Blue Cross & Blue Shield of Alabama, 581 So. 2d 772 (Ala.1990), reaches such a result. See, also, Franklin v. Healthsource of Arkansas, 328 Ark. 163, 166, 942 S.W.2d 837, 838-39 (1997) (overruling an earlier decision wherein a three-judge plurality had concluded that "conventional subrogation rights of an insurer created by contract prevail over an insured's equitable right of subrogation arising as an operation of law"). However, Powell arrogates to the judiciary, contrary to § 43 of the Constitution of Alabama of 1901, the authority to declare public policy.[7] That function is reserved to the Legislature, subject to limits imposed by the Constitution. Rogers v. City of Mobile, 277 Ala. 261, 281, 169 So. 2d 282, 302 (1964). Accord, Franklin, 328 Ark. at 174, 942 S.W.2d at 843 (Imber, J., dissenting). Until the Legislature should require otherwise, I therefore concur in overruling the across-the-board rule, as first expressed in Powell, requiring that a court disregard a contract provision conferring subrogation rights regardless of whether the insured has been made whole.[8] Today's ruling leaves us with a predicament that existed before Powell. Rule *548 17(a), Ala. R. Civ. P., requires joinder of the insurer (the subrogee) as a coplaintiff even when the insured has a substantial interest in the claim apart from the insurer's subrogated interest. Forcing the joinder of the insurer as a coplaintiff then becomes a ploy for the purpose of weakening the insured's claim. The rule was written so as to prevent the masquerade by which a subrogation claim is made solely in the name of the insured, when the insurer is the sole party with a pecuniary interest. However, as written, it requires joinder of the insurer in every instance when the insurer has a pecuniary interest in the claim. The result is that not only is the insurer required to be joined to prevent the masquerade that might occur when the insured's interest is limited to a claim for a small deductible, but the insurer also must be joined even when the insured has substantial claims not covered by insurance. The use of Rule 17(a) in this fashion was not anticipated by the Advisory Committee on Rules of Civil Procedure in 1971-72 when it drafted our Rules.[9] The current advisory committee should consider an amendment to Rule 17(a) that would allow the trial court, when justice requires, to prevent a party from disclosing to the jury the insurer's interest. Such an approach would be a reasonable counterpart to the protection we now afford an insurer when we prevent a party from disclosing to the jury the insurer's obligation to satisfy the judgment in an action against its insured. JOHNSTONE, Justice (concurring in the result but dissenting from the rationale). This case does not justify our overruling Powell v. Blue Cross & Blue Shield of Alabama, 581 So. 2d 772 (Ala.1990), and its progeny. All the case before us requires is that we recognize an obvious exception to, or limitation on, the "made-whole" rule. The exception or limitation is that, while an insurer could not enforce a contract or policy provision made before a loss requiring its insured to waive the "made-whole" rule and could not exact such a waiver after a loss as a condition to payment, the insured may, after a loss, effectively waive the "made-whole" rule, and, if the insured does, then no other party can invoke the "made-whole" rule. Such a limitation on, or exception to, the general "made-whole" rule would foreclose the misuse of the rule by the alleged tort-feasors before us and by others similarly situated and yet would preserve the obvious equities the rule secures to insureds according to the rationale of Powell, supra. COOK and ENGLAND, JJ., concur. [1] The main opinion of the Court of Civil Appeals in this case (authored by Judge Thompson and concurred in by Judge Crawley) impliedly asked this Court to review the law of subrogation as expressed in Powell and its progeny: "A review of Alabama caselaw on this issue reveals that Powell and Sharpley, the first cases to establish the `made-whole' rule as it relates to insurers' subrogation claims in Alabama, were both decided by a plurality of the supreme court. Further, the supreme court's plurality decisions in Powell and Sharpley were a sharp departure from that court's former position on the issue as set forth in International Underwriters/Brokers, Inc. v. Liao, 548 So. 2d 163 (Ala. 1989), a unanimous decision of the court, released just one year earlier." State Farm Fire & Cas. Co. v. Hannig, 764 So. 2d 538, 542 (Ala.Civ.App.1999). [2] Liao, 548 So. 2d at 166. [3] Chief Justice Vanderbilt, of the New Jersey Supreme Court, wrote extensively of the role of the doctrine of stare decisis in his dissent in Fox v. Snow, 6 N.J. 12, 76 A.2d 877 (1950): "The doctrine of stare decisis neither renders the courts impotent to correct their past errors nor requires them to adhere blindly to rules that have lost their reason for being. The common law would be sapped of its life blood if stare decisis were to become a god instead of a guide. The doctrine when properly applied operates only to control change, not to prevent it. As Mr. Justice Cardozo has put it, `Few rules in our time are so well established that they may not be called upon any day to justify their existence as means adapted to an end. If they do not function they are diseased. If they are diseased, they must not propagate their kind. Sometimes they are cut out and extirpated altogether. Sometimes they are left with the shadow of continued life, but sterilized, truncated, impotent for harm.' Nature of the Judicial Process (1921) 98.... ". . . . "... The doctrine of stare decisis tends to produce certainty in our law, but it is important to realize that certainty per se is but a means to an end, and not an end in itself. Certainty is desirable only insofar as it operates to produce the maximum good and the minimum harm and thereby to advance justice.... When it appears that the evil resulting from a continuation of the accepted rule must be productive of greater mischief to the community than can possibly ensue from disregarding the previous adjudications on the subject, courts have frequently and wisely departed from precedent, 14 Am.Jur., Courts, § 126." 6 N.J. at 23-25, 76 A.2d at 883-84. [4] Beasley, 294 Ala. at 291, 315 So. 2d at 572 (Jones, J., concurring specially). [5] For a brief overview of the evolution of the rule prohibiting such contracts and references to the rule as it is applied in other jurisdictions, see Ex parte Brock, 734 So. 2d 998, 999-1000 (Ala.1999). [6] Compare Hare v. State, 733 So. 2d 277, 283-84 (Miss.1999), where the Mississippi Supreme Court, using language suggesting a finding of unconscionability, refused to enforce a contractual provision sparing the insurer from the consequences of the madewhole rule in a setting where the insurer was trying to intercept funds paid to the insured under uninsured-motorist coverage provided by another insurer and the insured was nowhere near being made whole for injuries suffered in an automobile accident. Whether such circumstances would meet this Court's standards of unconscionability is not before us. [7] Section 43 mandates the separation of the judicial power from the legislative power and condemns usurpation of the one by the department of government that is authorized to exercise the other. [8] The doctrine of stare decisis has a diminished efficacy in instances where the former decision is grounded in an erroneous application of the Constitution and corrective action is limited to constitutional amendment or overruling the earlier decision. Agostini v. Felton, 521 U.S. 203, 235, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997). See, also, Ex parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33, 42, n. 10 (Ala.1998) (Lyons, J., concurring specially and quoting from Justice Black's dissenting opinion in Gwin, White & Prince v. Henneford, 305 U.S. 434, 454-55, 59 S. Ct. 325, 83 L. Ed. 272 (1939) (Black, J., dissenting), in which he stated: "[T]he rule of stare decisis cannot confer powers upon the courts which the inexorable command of the Constitution says they shall not have."). [9] My recollections in this area were first expressed many years ago in Champ Lyons, Jr., Alabama Practice, 17.2, pp. 295-96 (2d ed. 1986), and they were repeated in Champ Lyons, Jr., Alabama Practice, 17.2, pp. 408-09 (3d ed. 1996).

January 21, 2000

bb067c07-4830-4f75-abeb-22e3de990c53

Summit Photographix, Inc. v. Scott

763 So. 2d 956

1971819, 1981170

Alabama

Alabama Supreme Court

763 So. 2d 956 (2000) SUMMIT PHOTOGRAPHIX, INC. v. Curtis SCOTT. 1971819 and 1981170. Supreme Court of Alabama. February 11, 2000. *958 J. Eric Anderson of Simmons Brunson & Associates, P.A., Gadsden; Charles E. Vercelli, Jr., Todd E. Hughes, and Stacy A. Linn of Nix, Holtsford & Vercelli, P.C., Montgomery, "of counsel", for appellant. James W. McGlaughn of Inzer, Haney, Johnson & McWhorter, P.A., Gadsden, for appellee. BROWN, Justice. Summit Photographix, Inc. ("Summit"), appeals from an order denying its Rule 55(c), Ala. R. Civ.P., motion to set aside a $500,000 default judgment, and an order denying its Rule 60(b), Ala. R. Civ.P., motion for relief from that judgment. The judgment was entered in favor of Curtis Scott. Summit was a Texas corporation that produced baseball trading cards. Summit enlisted "representatives," such as Curtis Scott, to sell "vouchers" for these cards to customers. After purchasing a voucher from a representative, the customer would send the voucher to Summit's headquarters in Dallas, together with the applicable shipping and handling fees. Upon receiving the voucher, Summit would redeem it and send the customer the specified card. In February 1997, Scott paid a start-up fee of $214.92 to become a Summit representative, so that he could sell the redeemable vouchers for profit. Scott also purchased approximately $3,000 in inventory and promotional materials from Summit. Thereafter, Scott began selling the vouchers. On June 6, 1997, Summit encountered problems with several of its key vendors and was forced to cease operations. As a result, Scott was no longer able to sell the vouchers, and he had to issue refunds to several customers after Summit failed to redeem their vouchers. Scott sued Summit, alleging breach of contract, fraud, misrepresentation, conversion, negligence, and wantonness. Because Summit failed to answer or otherwise defend, Scott applied for a default judgment against Summit. Accompanying Scott's application for a default judgment was an affidavit by Scott stating that Scott was due $250,000, plus costs. After conducting a hearing on Scott's motion, the circuit court entered a default judgment awarding Scott $500,000 in damages. Pursuant to Rule 55(c), Ala. R. Civ.P., Summit moved to set aside the default judgment; with its motion it filed a supporting affidavit and an answer to the complaint. However, the circuit court denied the motion on June 8, 1998. The following day, Summit filed a motion for relief from the judgment, pursuant to Rule 60(b), Ala. R. Civ.P. On July 16, 1998, Summit filed a notice of appeal from the June 8, 1998, denial of its Rule 55(c) motion to set aside the default judgment. On December 8, 1998, the trial court heard argument on Summit's Rule 60(b) motion for relief from the judgment, and on March 5, 1999, it entered an order denying that motion. On April 16, 1999, Summit filed a notice of appeal from the order denying the Rule 60(b) motion. On an appeal from an order denying a motion to set aside a default judgment, our review is confined to determining whether the trial court abused its discretion in refusing to set aside the default judgment. Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So. 2d 600, 603 (Ala.1988). When considering a motion to set aside a default judgment, a trial court has broad discretion. Kirtland, 524 So. 2d at 604. However, that discretion requires the trial court to balance two competing policy interests associated with default judgments: judicial economy and a litigant's right to defend on the merits. 524 So. 2d at 604. These interests must be balanced under the process established in Kirtland. In Ex parte Gilliam, 720 So. 2d 902, 905 (Ala.1998), this Court summarized the requirements of Kirtland: Summit first contends that the trial court abused its discretion when it found that Summit was unable to demonstrate a meritorious defense. In order to demonstrate a meritorious defense, Summit "need not satisfy the trial court that [Summit] would necessarily prevail at a trial on the merits, only that [it] is prepared to present a plausible defense." Ex parte Illinois Cent. Gulf R.R., 514 So. 2d 1283, 1288 (Ala.1987). A "plausible defense" is "a viable legal theory supported by a factual basis." Kirtland, 524 So. 2d at 605. "The rationale behind the meritorious-defense requirement is that evidence of a defense indicates that the outcome of the case could be different if it were disposed of by a trial on the merits rather than by a default judgment and, therefore, justifies reopening the case so that justice can be done." Kirtland, 524 So. 2d at 605-06. Summit submitted an affidavit in support of its motion to set aside the default judgment. Brad Highum, president of Summit, provided that affidavit. The contents of that affidavit were in direct conflict with the allegations in Scott's complaint. Specifically, Highum stated: Moreover, in its answer to Scott's complaint, Summit averred that no contractual relationship had existed between it and Scott. The answer further stated that, even if such a relationship had existed, Summit did not breach any contract between it and Scott. Highum's affidavit set forth evidence indicating that, under the facts and circumstances of the case, Summit owed Scott no duty other than a possible contractual duty; this evidence contradicted Scott's claims alleging negligence and wantonness. Highum's affidavit also stated that Summit had refunded moneys received as shipping and handling fees, directly to the persons who had placed orders with the company; this evidence contradicted Scott's claims alleging conversion. It appears from Summit's motion and Highum's affidavit that Summit is prepared to present a plausible defense to Scott's claims. Furthermore, it is evident from the affidavit that Summit has taken a defensible position with regard to the claims made against it. Through Highum's affidavit, Summit has specifically refuted Scott's claims; therefore, Summit has made a showing that it could present a meritorious defense. See Kirtland, 524 So. 2d at 605-06. Summit next contends that the trial court abused its discretion when it found that Summit had failed to show that Scott would suffer no substantial prejudice if the default judgment were set aside. "[M]ere delay or increased cost is not sufficient to justify a refusal to set aside a default judgment." Ex parte Gilliam, 720 So. 2d at 906; see also Cunningham v. Gibson, 618 So. 2d 1342, 1344 (Ala.1993). Moreover, more than mere allegations and conclusory statements is required in order to establish substantial prejudice. See Hall v. Chrysler Corp., 553 So. 2d 98, 100 (Ala.1989). The record contains no evidence indicating Scott would suffer any prejudice from setting aside the default judgment other than a delay in collecting damages. If the judgment is set aside but, ultimately, Scott is determined to be entitled to damages from Summit, the delay in collecting damages can be compensated for by imposing costs on Summit. The record contains no evidence of fraud, collusion, or loss of evidence that would substantially harm Scott. See Kirtland, 524 So. 2d at 609. Thus, it appears that no prejudice would result from setting aside the default judgment. Summit also contends that the trial court abused its discretion when it found that Summit's failure to answer Scott's complaint was the result of its own culpable conduct. "Conduct committed willfully or in bad faith constitutes culpable conduct for purposes of determining whether a default judgment should be set aside. Negligence by itself is insufficient." Kirtland, 524 So. 2d at 607. "Willful and bad faith conduct is conduct characterized by incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority, or intentional nonresponsiveness." 524 So. 2d at 608. Finally, "a defaulting party's reasonable explanation for inaction and noncompliance may preclude a finding of culpability." 524 So. 2d at 608. In the affidavit offered in support of Summit's motion to set aside the default judgment, Highum asserted that the company had failed to answer Scott's complaint *961 because it received that complaint after it had ceased doing business. Consequently, he said, the complaint was misplaced and overlooked. Highum's affidavit stated that Summit had operated with 130 employees, but that after it ceased operations it had no employees. This fact, he said, coupled with the fact that Summit had an inadequate process for receiving, processing, and distributing the large amount of mail it received after its dissolution led to its misplacing the complaint. This Court has held that where a complaint is misplaced because of "inadvertence, mistake, or excusable neglect," the defaulting party does not commit a culpable action. Bailey Mortgage Co. v. Gobble-Fite Lumber Co., 565 So. 2d 138 (Ala. 1990). Summit's actions, as indicated by Highum's affidavit, while negligent, do not rise to the level of the culpable conduct necessary to justify the denial of a motion to set aside a default judgment. The trial court's judgment awarded Scott twice the amount he had asked for in his application for entry of a default judgment, and far in excess of the amount he had actually lost. Utilizing the test set out in Kirtland, we hold that the trial court abused its discretion in not setting aside the default judgment. The order denying the Rule 55(c) motion to set aside the default judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion. Because in case no. 1971819 we reverse the order denying the Rule 55(c), Ala. R. Civ.P., motion, the appeal from the order denying the Rule 60(b) motion is moot. That appeal is therefore dismissed. 1971819REVERSED AND REMANDED. 1981170DISMISSED AS MOOT. MADDOX, HOUSTON, COOK, SEE, and LYONS, JJ., concur. ENGLAND, J., concurs in the result in case no. 1971819 and concurs to dismiss the appeal in case no. 1981170. JOHNSTONE, J., dissents in case no. 1971819 and concurs in the result in case no. 1981170. JOHNSTONE, Justice (dissenting in case no. 1971819 and concurring in the result in case no. 1981170). I respectfully dissent from the decision to reverse the trial court's denial of the defendant's motion to set aside the default judgment. I dissent for two reasons. Each is independently sufficient to affirm the trial court. The first reason is that the defendant's failure to answer resulted from its own culpable conduct. The excuse the defendant claims for its failure to answer appears in the affidavit of Brad Highum: The defendant's reduction of its work force to "zero employees" constituted "intentional nonresponsiveness," which, in turn, constitutes culpable conduct, which defeats a motion to set aside a default judgment. Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So. 2d 600, 607-08 (Ala. 1988). Because the "zero employees" lacked capacity for the cited "turmoil," "confusion," or "orderly process," the defendant's use of these terms to argue the excuse is a make-weight illusion. On the other hand, if the defendant's "zero employees" representation is false, it *962 is disingenuous. Such disingenuousness allows an inference that the defendant's other assertions are not true. Noteworthily, this case does not involve a hair-trigger default judgment. The plaintiff allowed the defendant more than three-fold the time allotted to file an answer before the plaintiff moved for a default, and the trial judge allowed another week. Specifically, the plaintiff achieved service on October 28, 1997, and did not file his motion for default until February 2, 1998; and the trial judge did not enter the default judgment until February 9, 1998. Second, the defendant's proffered defense is, on its face, a pretense that amounts to no defense at all. The defendant's answer, which consists principally of denials and ends with a few utterly conclusory positive averments, is, of course, mere pleading, not proof. The affidavit proffered by the defendant as its proof disintegrates upon examination. This dissent will discuss all of the defensive sentences in the affidavit, sentence by sentence. The affidavit is the same one already quoted in part above. The sentence does not say the company filled or intended to fill all orders, most orders, or a majority of the orders. For aught that appears in the sentence, the defendant filled and intended to fill only a few of the orders. As initially discussed, the company was making these efforts with "zero employees." Further, the sentence does not state that the company was trying to return all orders and receipts or most orders and receipts or even a majority of orders and receipts. For aught that appears in the sentence, the company was trying to return only a few orders and receipts. This statement is entirely conclusoryso conclusory that it has no probative value. Further, the statement does not deny misrepresenting material facts, but rather denies misrepresenting only material facts which were known to be false. The sentence does not deny negligent or even grossly reckless misrepresentations. This sentence does not say that Summit refunded all the money, or most of the money, or even a majority of the money. For aught that appears, the defendant refunded only a nominal amount of the money. Likewise, the sentence does not say that the refunds went to all people who had placed orders, or most of the people, or even a majority of the peoplejust "to people." For aught that appears, the refunds went to only a few people. *963 This concluding sentence in Mr. Highum's affidavit is a mere conclusory statement of his personal belief. It has no substantive force whatsoever. To succeed on a motion to set aside a default judgment, the defendant must present a plausible defensethat is, "a viable legal theory supported by a factual basis." Ex parte Illinois Cent. Gulf R.R., 514 So. 2d 1283, 1288 (Ala.1987). This defendant offers mere bits and pieces of legal theories supported by only the illusion of a factual basis. For each of the reasons, severally, explained in this dissent, I respectfully submit that we should affirm the order of the trial court denying the defendant's Rule 55(c) motion to set aside the default judgment. I agree that the appeal in case no. 1981170 is due to be dismissed.

February 11, 2000

5351c32d-bf73-4d3a-b528-d2e90a06a1db

Ex Parte Smith

756 So. 2d 957

1971580

Alabama

Alabama Supreme Court

756 So. 2d 957 (2000) Ex parte Ronald Bert SMITH, Jr. (Re Ronald Bert Smith, Jr. v. State). No. 1971580. Supreme Court of Alabama. January 21, 2000. *959 Charles H. Pullen, Huntsville, for petitioner. Bill Pryor, atty. gen., and J. Clayton Crenshaw, asst. atty. gen., for respondent. PER CURIAM. The opinion of July 30, 1999, is withdrawn, and the following is substituted therefor. Ronald Bert Smith, Jr., was charged with and convicted of the capital murder of Casey Wilson. The jury recommended, by a vote of 7 to 5, a sentence of life in prison without the possibility of parole. The trial judge, however, sentenced Smith to death, and the Court of Criminal Appeals affirmed Smith's conviction and sentence. Smith v. State, 756 So. 2d 892, 904 (Ala. Crim.App.1998). This Court granted Smith's petition for certiorari review and heard oral arguments. The facts of this case are adequately set out in the trial court's sentencing order, which is attached as Appendix A to the opinion of the Court of Criminal Appeals. Smith, 756 So. 2d at 946-57. Smith has raised 22 issues for this Court's consideration. The Court of Criminal Appeals adequately addressed and correctly resolved the majority of those issues in its thorough, well-reasoned, and unanimous opinion. We will, however, address a few of those issues. Smith argues that the trial court improperly allowed the jury to separate over his objection. He makes the same argument on this issue that the defendant made in Stewart v. State, 730 So. 2d 1203 (Ala.Crim.App.1996) (opinion on third return to remand). The Court of Criminal Appeals rejected that argument in Stewart, and this Court affirmed. Ex parte Stewart, 730 So. 2d 1246 (Ala.1999). See also Ex parte Smith, 727 So. 2d 173 (Ala. *960 1999). We must likewise reject the defendant's argument in this present case. Smith complains of the conclusions the Court of Criminal Appeals reached in Part IV.C. of its opinion, in which that court addressed certain testimony the trial court admitted over Smith's objection. The Court of Criminal Appeals, in effect, held that Smith waived his objection to this testimony by arguing, after it was admitted, that the jury should draw from it inferences favorable to him. The Court of Criminal Appeals held: Smith, 756 So. 2d at 913. The Court of Criminal Appeals misapplied the rule regarding a party's taking inconsistent positions. Smith could not comment to the jury or argue with the trial court about the court's action in overruling his objection and admitting the testimony. Rather, Smith, through his lawyer, attempted to make the best of the situation, and his lawyer owed him a duty to argue to the jury any favorable inferences the testimony would allow. Smith did not, by his efforts in this regard, waive his objection. See Porter v. Jolly, 564 So. 2d 434 (Ala. 1990). His position on the question whether this testimony was admissible has not been inconsistent at all. However, the other reasons given by the Court of Criminal Appeals for its holding that the admission of this testimony was not prejudicial error are correct. In Part IX of its opinion, the Court of Criminal Appeals addressed the admission of testimony by Officer Renfroe in which he narrated to the jury what he understood to be depicted on a videotape of the incident during which the killing occurred; that videotape was made by security-surveillance cameras mounted inside the premises where the killing occurred. Although Officer Renfroe did investigate the incident and did extensively examine the scene, he had not been present during the incident to observe it personally. Nonetheless, the trial court, over the defendant's objections, allowed Officer Renfroe to describe not only the physical layout and features of the scene but also the positions, movements, and actions of the people participating in the incident. The Court of Criminal Appeals stated: 756 So. 2d at 919. On the one hand, Officer Renfroe could legally identify the layout and features of the scene as they were depicted on the videotape, because the law allows a witness with personal knowledge of things depicted in a photograph (whether taken by videotape recorder or otherwise) to identify those things as they appear in the photograph. See Ex parte Rieber, 663 So. 2d 999, 1011 (Ala.1995), and McFarland v. State, 581 So. 2d 1249 (Ala.Crim.App. 1991). On the other hand, Officer Renfroe could not legally testify about his impressions of the locations, movements, and actions of the people depicted by the videotape, things that were outside his own personal knowledge. He was incompetent to testify to matters outside his own personal observation. Sheridan v. State, 591 So. 2d 129 (Ala.Crim.App.1991); Lewis v. State, 535 So. 2d 228 (Ala.Crim.App.1988); Charles W. Gamble, McElroy's Alabama Evidence, § 105.01 (5th ed.1996). Officer Renfroe, in that incompetent testimony, invaded the province of the jury by stating his conclusions of ultimate facts, insofar as he purported to describe the presence and actions of the defendant and his accomplice. Allen v. State, 472 So. 2d 1122 (Ala.Crim.App.1985); Wyatt v. State, 405 So. 2d 154, 157 (Ala.Crim.App. *961 1981); McElroy's Alabama Evidence, supra, §§ 115.01 and 127.01. For the reasons stated by the Court of Criminal Appeals, however, any error in the admission of this testimony by Officer Renfroe was harmless. Therefore, like the Court of Criminal Appeals, we conclude that Officer Renfroe's testimony did not deprive Smith of a fair trial. Part XIII.D. of the opinion by the Court of Criminal Appeals concerns a statement made by the prosecutor in his closing argument: "It is a rare occasion that you have as much evidence to prove a case of this nature as we have here." The Court of Criminal Appeals held that the "prosecutor's comment [was] simply a permissible comment on the evidence." Smith, 756 So. 2d at 929 (emphasis in original). As the Court of Criminal Appeals correctly held, the prosecutor's statement was not tantamount to vouching for the credibility of the prosecutor's witnesses, as the defendant had claimed in his objection. However, the prosecutor's words "It is a rare occasion" constitute a comparison between the weight of the evidence presented in this case and the weight of the evidence generally presented in other cases, although no evidence presented in this present case related to the weight of the evidence generally presented in other cases. Thus, the appellate courts should not approve, as a permissible comment on the evidence, the prosecutor's statement here: "It is a rare occasion that you have as much evidence to prove a case of this nature as we have here." The defendant's objection, however, stated an improper groundthat the prosecutor was vouching for his witnesses. The defendant did not object on the ground that the prosecutor was commenting on facts not in evidence. Thus, the trial court's failure to sustain the defendant's objection was not error. An objection specifying one ground excludes others. Floyd v. State, 82 Ala. 16, 2 So. 683 (1887); Lee v. State, 562 So. 2d 657 (Ala.Crim.App. 1989); Snider v. State, 406 So. 2d 1008 (Ala.Crim.App.1981). Under the plain-error rule, the absence of an apt objection weighs against any claim of prejudice. Ex parte Kennedy, 472 So. 2d 1106 (Ala.1985), cert. denied, 474 U.S. 975, 106 S. Ct. 340, 88 L. Ed. 2d 325 (1985). Further, under the plain-error rule, we will reverse only when an "error has or probably has adversely affected the substantial rights of the [defendant]." Rule 39(k), Ala. R.App. P. As the Court of Criminal Appeals observes early in its opinion, "`[The] plain-error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result,"'" quoting United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985) (quoting in turn United States v. Frady, 456 U.S. 152, 163, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982)). In the context of this defendant's long and carefully conducted trial, any error in allowing this argument does not approach the degree of error the plain-error rule would require for a reversal. Smith argues that the trial court inappropriately attached the "aggravating" label to evidence that should be considered mitigating. See Zant v. Stephens, 462 U.S. 862, 885, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983) (holding that if a state has "attached the `aggravating' label to ... conduct that actually should militate in favor of a lesser penalty," due process would require that the death sentence be set aside). Specifically, Smith argues that the trial court used his evidence of good character against him. In support of this claim, Smith points to the following portion of the trial court's sentencing order: Smith, 756 So. 2d at 955 (Appendix A). The Court of Criminal Appeals did not directly address this argument, although it did conclude that the trial court considered all of the mitigating evidence Smith offered. After considering the trial court's sentencing order, however, we find this argument to be without merit. The excerpt quoted above was not part of the trial court's determination that an aggravating circumstance existed. Instead, that excerpt is contained in the trial court's discussion of how much weight should be given to Smith's argument that the killing was inconsistent with his character. The trial court determined that the killing was inconsistent with Smith's character prior to his high-school graduation. In fact, the trial court expressly found that Smith had substantially proven this nonstatutory mitigating circumstance. The trial court, however, concluded that the weight to be given this circumstance was affected by Smith's dramatic reversal of character during the five and a half years between his high-school graduation and the murder. Accordingly, it is clear that the trial court was not attaching the "aggravating" label to any conduct that should be considered mitigating. Rather, the trial court concluded that the evidence offered was mitigating, but not as mitigating as Smith would have the trial court believe. Thus, the trial court did not violate the principles set out in Zant, and the due-process guaranty does not require this Court to set aside Smith's sentence. Smith argues that the trial judge erred by failing to charge the jury on any lesser-included homicide offense that would not have required the jury to find that Smith had intended to kill the victim. As the Court of Criminal Appeals pointed out, Smith did not object on this point at trial, although he did include this objection in his motion for a new trial. Rule 21.3, Ala. R.Crim. P., however, provides: Because Smith failed to object before the jury retired, we consider this argument only in the context of plain-error review. By that review, as mentioned above, we notice plain error that "has or probably has adversely affected the substantial rights of the [defendant]." Rule 39(k), Ala. R.App. P. Ex parte Woodall, 730 So. 2d 652, 657 (Ala. 1998). *963 As this Court has held: "A defendant is entitled to a charge on a lesser-included offense if there is any reasonable theory from the evidence that would support [his theory of the case]." Ex parte Oliver, 518 So. 2d 705, 706 (Ala.1987); § 13A-1-9(b), Ala.Code 1975. To state that rule differently, a charge on a lesser-included offense is not required if there is no "reasonable theory from the evidence that would support" giving that instruction. This Court has stated the standard to be applied by the fact-finder in considering evidence of intoxication in a case where a defendant is charged with a crime including intent as an element: Ex parte Bankhead, 585 So. 2d 112, 120-21 (Ala.1991); see also Chatham v. State, 92 Ala. 47, 9 So. 607 (1891). Should the trial court have instructed the jury on the lesser-included offense of manslaughter? It should have "if there [was] any reasonable theory from the evidence that would support the position"[1] that the defendant's level of intoxication was "so extreme as to render it impossible for the defendant to form the intent to kill."[2] Smith testified that he drank 32 ounces of gin before the killing. One of his codefendants, however, testified that Smith drank only half a can of beer before the killing. That codefendant also testified that Smith appeared to be sober at the time of the offense and that Smith drove home after the incident and did so without apparent difficulty. Further, according to the Court of Criminal Appeals: 756 So. 2d at 907. The Court of Criminal Appeals held that there was "no reasonable theory under the facts of this case to support an instruction on manslaughter," 756 So. 2d at 907, and held that it was not, therefore, reversible error for the trial court not to give an instruction on manslaughter. *964 In Fletcher v. State, 621 So. 2d 1010 (Ala. Cr.App.1993), the Court of Criminal Appeals discussed the evidentiary threshold that must be met to trigger the requirement that the court give a charge on intoxication[3] and adopted a test applied by the New York Court of Appeals: 621 So. 2d at 1020-21 (emphasis added in Fletcher). In Fletcher, the Court of Criminal Appeals held that a trial judge invaded the province of the jury when he concluded that the defendant had not been so intoxicated as to negate the element of intent. The trial judge had instructed the jury on felony murder but had not instructed the jury on intoxication or on manslaughter. The Court of Criminal Appeals, holding that the trial judge had erred, reversed the defendant's conviction. In that case, the Court of Criminal Appeals wrote: 621 So. 2d at 1021-22. (Some emphasis in Fletcher; some emphasis added.) Because it concluded, in light of the felony-murder charge, that the trial judge erred to reversal by failing to charge the jury on intoxication, the Court of Criminal Appeals in Fletcher did not directly address the question whether it was plain error for the trial judge not to also charge the jury on manslaughter. However, the Fletcher court implied that where a defendant is charged with murder and a charge on intoxication is required, a charge on manslaughter will, as a matter of law, also be required. However, in Hutcherson v. State, 677 So. 2d 1174 (Ala.Crim.App.1994), a case decided after Fletcher, the Court of Criminal Appeals held, in a case in which the defendant had been charged with murder, that a charge on manslaughter was not required even though the trial judge had charged the jury on intoxication. In that case, the Court of Criminal Appeals reviewed the evidence presented and concluded that there was not sufficient evidence of intoxication to require the charge on the lesser-included offense. In this present case, the Court of Criminal Appeals held that even if the trial judge erred in failing to charge the jury on manslaughter, that error was harmless. The court cited Gaddy v. State, 698 So. 2d 1100 (Ala.Crim.App.1995), for the proposition that because the trial judge charged the jury on the lesser-included offenses of intentional murder and robbery, and because the jury found Smith guilty of capital murder, "it is reasonable to conclude that an instruction on any other lesser included offense would not have affected the outcome of the case." 756 So. 2d at 907. We do not address the question whether the law requires an instruction on manslaughter or any other lesser-included homicide offense where the facts are such that a charge on intoxication is required, because we conclude that the intoxication instruction was not required under the facts of this case. In large part, we reach that conclusion based on the defendant's own testimony, which was, in part, as follows: (R.T. 1242-59.) On cross-examination, Smith testified: (R.T. at 1281-82.) The defendant himself testified that he had the intent to kill the victim. Given that testimony, and the rest of the evidence presented, we conclude that the law did not require the trial judge to instruct the jury on intoxication. Because the intoxication instruction was not required, there is no need to consider whether, in a case where the defendant is charged with murder and an intoxication instruction would be required, a jury instruction on manslaughter or some other lesser-included homicide offense would also be required. Because we do not reach that issue, we should not be understood as agreeing that, if the intoxication instruction had been required in this case, it would have been harmless error to fail to instruct the jury on manslaughter. Smith has raised other issues here, but we conclude that the Court of Criminal Appeals correctly decided those issues. Further, we have searched the record for plain error, but we have found none. The judgment of the Court of Criminal Appeals is due to be affirmed. OPINION OF JULY 30, 1999, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED. MADDOX, HOUSTON, COOK, SEE, LYONS, and JOHNSTONE, JJ., concur. BROWN, J., recuses herself.[*] [1] Oliver, 518 So. 2d at 706. [2] Bankhead, 585 So. 2d at 121. [3] The trial judge in this present case did charge the jury on intoxication, as follows: "Now, there was some testimony that the defendant was drinking and under the influence of intoxicating liquors or beverages at the time that the offense occurred. And because of that, it is necessary for me to say something to you about voluntary intoxication and whether that excuses a person of a crime. "Under our law the definition of the word `intoxication' is a broad one, and it includes the disturbance of a person's mental or physical capabilities resulting from the introduction of any substance into the body, regardless of whether that substance is alcohol, drugs, or some other mind-altering substance or compound. Voluntary intoxication, regardless of whether that intoxication is produced by beer, gin, any other liquor, or drugs or some other substance is never a defense to a crime. However, our state Supreme court has said that voluntary intoxication may be considered by the jury if it is relevant on the question of whether the fact of intoxication negates an element of the offense charged, meaning such as intent. "Now, let me repeat that. Voluntary intoxication is not a defense to a criminal charge. However, if you, the jury believe that the defendant's voluntary intoxication was of such a degree or to such an extent that it absolutely prevented him from forming or acting with a specific intent, then such finding would relieve him of responsibility for any crime which required a specific intent such as the intent to kill another person. "In other words, if at the time a person performs some criminal act he was so intoxicated, either from alcohol, [drugs], or a combination, that he absolutely is incapable of forming a criminal intent, then he would not be legally responsible for any criminal action which required the State to prove a specific criminal intent to kill another person as one of the elements of the crime." (R.T. 1435-37.) [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

January 21, 2000

e5f70767-7ccc-4462-8f8a-600f1ec1dfb4

Brookwood Medical Center v. Lindstrom

763 So. 2d 951

1980526

Alabama

Alabama Supreme Court

763 So. 2d 951 (2000) BROOKWOOD MEDICAL CENTER v. Woodie LINDSTROM. 1980526. Supreme Court of Alabama. February 11, 2000. *952 M. Christopher Eagan and Joseph L. Reese, Jr., of Starnes & Atchison, L.L.P., Birmingham, for appellant. Stephen D. Heninger of Heninger, Burge, Vargo & Davis, L.L.P., Birmingham, for appellee. COOK, Justice. Brookwood Medical Center appeals from a judgment entered on a jury verdict in favor of the plaintiff Woodie Lindstrom. We reverse and remand. On June 13, 1995, Woodie Lindstrom, then age 77, was admitted to the hospital operated by Brookwood Medical Center ("Brookwood") for observation in connection with a "heart flutter." That night, she was "agitated" and confused about her location. Fearing that she might fall, the medical staff ordered her to remain in bed and raised the bed rails. Because she refused to stay in bed, she was given medication to induce sleep. Despite these measures, Lindstrom continued to get out of bed and to walk, "dragging" with her the medical apparatus to which she was connected. Lindstrom's medical chart indicated that at approximately 1:00 a.m. she was restrained, in bed, by means of a "vest restraint" attached to the bed. Despite the vest restraint, Lindstrom managed to climb out of bed, and the medical staff found her standing beside the bed. A medical-chart entry made at 6:45 a.m. recorded the use of "wrist restraints" as a supplemental measure. Specifically, the notation read: "Resting at this time, vest and wrist restraints on." However, at approximately 7:20 a.m., Lindstrom climbed out of bed, fell, and broke her hip. On January 29, 1996, she sued Brookwood, alleging that it had "negligently caused or ... allowed [her] to fall in her room." The action was tried to a jury. The court denied Brookwood's motion for a judgment as matter of law, and the jury awarded Lindstrom $162,500. The court entered a judgment on that verdict. Brookwood has appealed, contending that, as to the question whether Brookwood breached the standard of care it owed Lindstrom, she had failed to produce evidence sufficient to overcome its motion for a judgment as a matter of law. We agree with this contention. A judgment as a matter of law "is proper (1) where the nonmoving party has failed to present substantial evidence regarding some element essential to her claim, or (2) where there is no disputed issue of fact upon which reasonable persons could differ." Teague v. Adams, 638 So. 2d 836, 837 (Ala.1994). "In medical malpractice cases, the plaintiff must prove that the alleged negligence `probably caused the injury.'" McAfee v. Baptist Medical Ctr., 641 So. 2d 265, 267 (Ala.1994). "The plaintiff must prove the alleged negligence through expert testimony, unless an understanding of the alleged lack of due care or skill requires only common knowledge or experience." Id. The only evidence Lindstrom produced relating to the question whether Brookwood breached the appropriate standard of care consisted of the testimony of Brookwood's own medical personnel. Lindstrom argues: "There is no requirement that [proof of] the standard of care must come from an independent expertit can be provided by the Defendant." Brief of Appellee, at 14 (emphasis added). To be sure, "the defendant himself can establish the expert testimony required in a medical negligence case." Dobbs v. Smith, 514 So. 2d 871, 872 (Ala.1987). But such evidence, to serve the purpose for which the plaintiff attempts to use it, must not only identify the standard, but also identify conduct that amounts to a breach of that standard. See Dobbs, supra (testimony of defendant-expert did not establish "a deviation from [the] standard"). In other *953 words, expert testimony in a medical-negligence case must show in what respect the defendant's conduct deviated from the appropriate standard. That is the sense in which Lindstrom's evidence was deficient. Specifically, the standard of care was established through the testimony of Nurse Karen Stamps. She identified essentially three methods appropriate for protecting patients who are disoriented and in danger of falling. First, she said, such patients are "reorient[ed]," that is, they are told "where they are, ... where the call light is, where the bathroom is, [and] how to call for the nurse if they need[] assistance." If the first method is ineffective, patients are then medicated. As a last resort, patients are restrained. In that connection, Stamps testified as follows: In addition, the standard of careLindstrom concedesrequired only that "the nursing staff ... check the patient every one hour to assure that the restraints are tied properly." Brief of Appellee, at 4 (emphasis added). All of Brookwood's medical personnel testified that this procedure was followed in this case and that there was no deviation from the standard of care. Lindstrom's theory of the case is that the testimony indicates confusion on the part of the witnesses as to "what restraints were on [her before she fell and] whether they were properly and securely tied." Brief of Appellee, at 17 (emphasis added). She sums up this confusion in the testimony as follows: Id. (citations to the record omitted). This evidence of confusion, she argues, was sufficient to defeat Brookwood's motion for a judgment as a matter of law. We disagree. Actually, the case turns on whether there was substantial evidence indicating that at some point within one hour before her fall Lindstrom was not restrained with wrist restraints. This is so, because no one contends that the vest restraint was removed by anyone other than Lindstrom. Therefore, the precise position of the vest, that is, whether it was on the bed or was still on Lindstrom is immaterial. The point is, it is undisputed that the vest restraint was in use at the time of the fall. Also, Stamps testified that the wrist restraints were a more "drastic" form of restraint than the vest restraint, and that the standard of care did not require both wrist and ankle restraints. Thus, the "confusion" to which Lindstrom refers could present a jury question only if there was substantial evidence from which a jury could find that Brookwood used neither wrist nor ankle restraints. In other words, Brookwood was entitled to a judgment as a matter of law unless there was a genuine conflict in the evidence as to the use of both wrist and ankle restraints. To support her contention that such a conflict existed, Lindstrom relies on a "quality-assurance incident report" prepared by Lori Busby, who was the "charge nurse"[1] at the time of Lindstrom's accident. *954 The report stated: "A PCA [patient-care assistant] entered the room to weigh the patient and found her beside the bed, swaying. She had gotten out of a vest restraint and gone over her side rails. Before the PCA could get to her, she fell, striking her head on the floor." Lindstrom relies on the fact that Busby's report did not state, for example: "She had gotten out of a vest restraint and wrist restraints." In other words, the report does not specifically mention wrist restraints. However, Lindstrom called Busby to testify at trial as an adverse witness. She testified unequivocally that Lindstrom also was restrained at the wrist when she fell. More specifically, she stated: (Reporter's Transcript at 397-99.) (Emphasis added.) A mere omission in a report does not constitute substantial evidence indicating the nonexistence of a fact that could have been recorded. Certainly, the omission in Busby's report did not constitute substantial evidence, when evidence of the existence of the omitted fact was supplied at trial by Busby's full and unequivocal testimony. In other words, there was no conflict between the report's nonstatement and Busby's affirmative statement, that would require a jury's resolution. Also, Patsy McBride, who was the first nurse into Lindstrom's room after she fell, testified unequivocally that Lindstrom was restrained at the wrist at the time of her fall. For example, she said: (Reporter's Transcript at 360.) (Emphasis added.) The last medical-chart entry made before the accident read: "Resting at this time, vest and wrist restraints on." In essence, the evidence was unrefuted that Lindstrom was restrained at the wrists a mere 35 minutes before the accident well within the undisputed once-per-hour monitoring period. Finally, Stamps testified that the restraints at issue in this case are not inescapable, even when they are correctly and properly applied. There was no evidence that the restraints were improperly applied in this case. On the contrary, all the witnesses who testified as to the standard of care testified that the restraints were properly applied and that Lindstrom was frequently and properly monitored. For example, Stamps testified as follows: (Reporter's Transcript at 298-317.) In this connection, "[w]hen evidence points equally to inferences that are favorable and to inferences that are unfavorable to the moving party, the evidence lacks probative value; and the evidence may not be used to support one inference over another because such use is mere conjecture and speculation." Turner v. Azalea Box Co., 508 So. 2d 253, 254 (Ala. 1987). Thus, evidence that equally establishes the possibility that Lindstrom slipped out of a properly secured wrist restraint and the possibility that she escaped from an improperly secured wrist restraint does not constitute substantial evidence of a breach of the standard of care. In short, there was no "disputed issue of fact upon which reasonable persons could differ." Teague, 638 So. 2d at 837. The trial court erred, therefore, in denying Brookwood's motion for a judgment as a matter of law. For these reasons, the judgment of the trial court is reversed and the cause is remanded for an order or further proceedings consistent with this opinion. REVERSED AND REMANDED. MADDOX, HOUSTON, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., dissents. [1] A "charge nurse" is responsible for "assigning the other nurses their patient assignments for the day." (Testimony of Lori Busby, R.N., Reporter's Transcript at 388.)

February 11, 2000

37729de9-f5db-4566-88d3-55532017dceb

Ex Parte Krothapalli

762 So. 2d 836

1981354

Alabama

Alabama Supreme Court

762 So. 2d 836 (2000) Ex parte Radha K. KROTHAPALLI, M.D. (Re Jeanne McCluskey, as administratrix of the estate of Robert Vernon McCluskey, deceased v. Dr. Radha K. Krothapalli). 1981354. Supreme Court of Alabama. February 18, 2000. *837 Frank J. Stakely and Ben C. Wilson of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for petitioner. Kathryn H. Sumrall and Carrie D. Thornburgh of Garrison & Sumrall, P.C., Birmingham, for respondent. MADDOX, Justice. The question presented by this petition for the writ of mandamus is whether certain records of two hospitals relating to a staff physician are privileged under state law and, therefore, not subject to discovery. The trial judge held that the records were discoverable. We conclude that she erred. Therefore, we grant the petition for a writ of mandamus directing the trial judge to vacate her orders compelling discovery and to quash the subpoenas for the records. Jeanne McCluskey, as personal representative of the estate of Robert V. McCluskey, filed a wrongful-death action against Dr. Radha Krothapalli, alleging medical malpractice on the part of Dr. Krothapallithat Dr. Krothapalli had breached the applicable duty of care by failing to adequately and properly treat Robert McCluskeyand that this breach had caused Robert McCluskey's death. On February 19, 1999, the plaintiff filed notices of intent to serve subpoenas on the operators of two hospitals, Baptist Medical Center and Columbia Regional Medical Center.[1] Dr. Krothapalli is a member of the medical staff at both of these hospitals. Through the subpoenas, the plaintiff sought to obtain the "personnel files of Dr. Krothapalli, including, but not limited to, all contracts of employment and privileges between Dr. Krothapalli" and the two hospitals. On March 2, 1999, Dr. Krothapalli timely filed a motion to quash the subpoenas, or, alternatively, a motion for a protective order, based upon Alabama's peerreview statute, § 22-21-8, Ala.Code 1975, arguing that the records the plaintiff sought were not personnel files, but were instead credentialing files regarding Dr. Krothapalli's medical-staff privileges and that under the provisions of Ala.Code 1975, § 22-21-8(b),[2] those records were privileged *838 and therefore not subject to discovery. The trial judge denied the motion to quash the subpoenas and ordered the two hospitals to deliver the personnel files directly to the trial court for an in camera inspection. Following an in camera review of the files, the trial judge issued an order stating that all the materials in the files were subject to subpoena by the plaintiff. Dr. Krothapalli filed this petition for a writ of mandamus directing the trial judge to vacate her orders and to quash the subpoenas. Are the records reviewed by the trial judge credentialing records and, therefore, exempt from discovery by operation of § 22-21-8(b), Ala.Code 1975? We conclude that they are. In construing a statute, we must ascertain and give effect to the intent of the Legislature as that intent is expressed through the language of the statute. See BP Exploration & Oil, Inc. v. Hopkins, 678 So. 2d 1052, 1054 (Ala.1996). The intent of the Legislature in adopting a statute may be gleaned from considering the language used, the reason and necessity for the statute, and the goals the Legislature sought to accomplish. Id. Section 22-21-8 was enacted as Act No. 81-801, Ala. Acts 1981. The title to that Act reads: "To provide for the confidentiality of all written materials and activities concerning the accreditation, quality assurance, or similar function of any hospital, clinic, or medical staff." In construing this statute, we adopt the reasoning of the Florida Supreme Court and the South Carolina Supreme Court in the following cases, in which those courts construed peer-review statutes substantially similar to § 22-21-8. In Cruger v. Love, 599 So. 2d 111 (Fla. 1992), the Florida Supreme Court, construing Florida's peer-review statute, Fla. Stat. Ann. § 766.101(5) (1989), stated: 599 So. 2d at 113-14. (Citation omitted.) Similarly, the South Carolina Supreme Court, in McGee v. Bruce Hosp. System, 312 S.C. 58, 439 S.E.2d 257 (1993), explained: 312 S.C. at 61-62, 439 S.E.2d at 259-60. (Citations omitted.) It seems clear to us, as it did to the Supreme Courts of Florida and South Carolina, that the purpose of a peer-review statute is to encourage full candor in peer-review proceedings and that this policy is advanced only if all documents considered by the committee or board during the peer-review or credentialing process are protected. In the title to Act No. 81-801, the Legislature stated the purpose of the Act as being "[t]o provide for the confidentiality of all written materials and activities concerning the accreditation, quality assurance, or similar function of any hospital, clinic, or medical staff." Given the broad language used by the Legislature in the title to this Act, we conclude that the documents the plaintiff seeks from the two hospitals are privileged. The information submitted to this Court under seal includes only Dr. Krothapalli's applications for staff privileges over the past several years. These documents clearly fall under the protection of § 22-21-8. We note that § 22-21-8(b) provides: Accordingly, § 22-21-8 does not protect information if it is obtained from alternative sources. Hence, a plaintiff seeking discovery cannot obtain directly from a hospital review committee documents that are available from the original source, but may seek such documents from the original source. Therefore, the trial court erred in ordering that these documents from the two hospitals be turned over to the plaintiff. We conclude that the documents at issue in this case are privileged, under Alabama's peer-review statute, § 22-21-8, Ala.Code 1975. The petition for the writ of mandamus is granted. The trial judge is directed to vacate her orders dated April 6, 1999, and May 17, 1999, and to enter an order quashing the subpoenas to Baptist Medical Center and Columbia Regional Medical Center. WRIT GRANTED. HOUSTON, COOK, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., dissents. JOHNSTONE, Justice (dissenting). The petitioner relies exclusively on the affidavit of Drenda Percival for his factual showing that the materials in the file are privileged. Percival's only description of the file or its contents is that the file [1] Both hospitals are now owned and operated by the same entity, Baptist Health. [2] Section 22-21-8, Ala.Code 1975, entitled "Confidentiality of accreditation, quality assurance credentialing materials, etc.," states: "(a) Accreditation, quality assurance and similar materials as used in this section shall include written reports, records, correspondence, and materials concerning the accreditation or quality assurance or similar function of any hospital, clinic, or medical staff. The confidentiality established by this section shall apply to materials prepared by an employee, advisor, or consultant of a hospital, clinic, or medical staff and to materials prepared by an employee, advisor or consultant of an accrediting, quality assurance or similar agency or similar body and to any individual who is an employee, advisor or consultant of a hospital, clinic, medical staff or accrediting, quality assurance or similar agency or body. "(b) All accreditation, quality assurance credentialing and similar materials shall be held in confidence and shall not be subject to discovery or introduction in evidence in any civil action against a health care professional or institution arising out of matters which are the subject of evaluation and review for accreditation, quality assurance and similar functions, purposes, or activities. No person involved in preparation, evaluation or review of accreditation, quality assurance or similar materials shall be permitted or required to testify in any civil action as to any evidence or other matters produced or presented during the course of preparation, evaluation, or review of such materials or as to any finding, recommendation, evaluation, opinion, or other action of such accreditation, quality assurance or similar function or other person involved therein. Information, documents, or records otherwise available from original sources are not to be construed as being unavailable for discovery or for use in any civil action merely because they were presented or used in preparation of accreditation, quality assurance or similar materials nor should any person involved in preparation, evaluation, or review of such materials be prevented from testifying as to matters within his knowledge, but the witness testifying should not be asked about any opinions or data given by him in preparation, evaluation, or review of accreditation, quality assurance or similar materials."

February 18, 2000

edffc946-0995-4e69-85ea-94840fb89ece

QCC, INC. v. Hall

757 So. 2d 1115

1980591

Alabama

Alabama Supreme Court

757 So. 2d 1115 (2000) QCC, INC. v. Pearl HALL. 1980591. Supreme Court of Alabama. January 28, 2000.[*] *1116 Lee H. Zell and Leigh Ann Hodge of Balch & Bingham, L.L.P., Birmingham; and Robin G. Laurie of Balch & Bingham, L.L.P., Montgomery, for appellant. Ernestine S. Sapp of Gray, Langford, Sapp, McGowan, Gray & Nathanson, Tuskegee, for appellee. LYONS, Justice. QCC, Inc., appeals from the trial court's denial of its motion to dismiss a complaint filed by Pearl Hall in the Macon County Circuit Court against QCC, alleging fraud, fraudulent suppression, negligence, and wantonness. QCC is a non-facilities-based reseller of long-distance telecommunication services. This appeal involves the jurisdiction of the Alabama Public Service Commission ("APSC") over "slamming," the practice by which a telephone company changes a customer's long-distance-telephone-service carrier without the customer's permission. According to Hall's complaint, she had purchased long-distance telephone service through AT & T Corporation for many years before 1996. Hall alleges that, in November or December 1996, QCC changed her long-distance telephone service from AT & T, without her permission. Hall claims that she did not request to employ QCC as her long-distance-telephone-service provider; that neither AT & T nor QCC notified her of the change; that her long-distance telephone charges were higher with QCC than they had been with AT & T; and that QCC had engaged in slamming. Hall alleges that a friend who did not have a telephone wrote Hall's telephone number on a contest entry form without her permission, that the contest entry form was actually an application form for QCC long-distance telephone service, and that her signature does not appear on the application. *1117 QCC moved to dismiss Hall's complaint on the ground that the APSC has primary and exclusive jurisdiction over Hall's claims and that Hall did not exhaust her administrative remedies through pursuit of proceedings before the APSC. The trial court denied QCC's motion to dismiss, but gave the statement called for by Rule 5(a), Ala. R.App. P, that would allow QCC to seek this Court's permission to appeal. The circuit court stated that there is a substantial ground for difference of opinion as to the following question (see Rule 5(a)): QCC argues that the APSC has primary and exclusive jurisdiction over Hall's claims, according to § 37-1-31, Ala.Code 1975. We agree. Section 37-1-31 provides: Section 37-4-1(9) defines "service regulation" as "every rule, regulation, practice, act or requirement in any way relating to the service or facilities of a utility."[1] In Talton Telecommunication Corp. v. Coleman, 665 So. 2d 914 (Ala.1995), the plaintiffs challenged the conduct of telephone-service providers in limiting the duration of "collect" telephone calls placed by prison inmates, a practice that substantially increased telephone bills because an additional collect call after the cut-off point to continue the conversation incurs higher rates at the outset of the new call. This Court[2] reversed the trial court's denial of a motion to dismiss the plaintiffs' complaint and noted that the plaintiffs' claim, based on the asserted absence of any tariff or other regulation permitting time limits resulting in substantially higher telephone bills, involved "rates and service regulations" and therefore "[fell] squarely within the scope of the APSC's exclusive jurisdiction." Id. at 916. See, also, Taffet v. Southern Co., 967 F.2d 1483 (11th Cir.) (en banc), cert. denied, 506 U.S. 1021, 113 S. Ct. 657, 121 L. Ed. 2d 583 (1992) (exclusive jurisdiction of APSC required dismissal of fraud claims arising from allegations of fraudulent accounting of spare parts in inventory that improperly affected charges to subscribers). Hall's claim is grounded on a challenge to service regulations, because she attacks a practice relating to the service of the utility. Under the APSC's general supervisory power over the manner in which the business is conducted, a regulatory activity as to which its jurisdiction is exclusive, the circuit court lacked jurisdiction over the subject-matter of Hall's claim.[3] *1118 QCC relies on Emperor Clock Co. v. AT & T Corp., 727 So. 2d 41 (Ala.1998), in which this Court considered the merits of a counterclaim charging breach of contract and fraud arising from AT & T's false representation that Emperor Clock Corporation would save money if it switched to AT & T. This Court concluded that the counterclaim was legally insufficient because of the "filed rate doctrine." This rule, based upon Kansas City Southern Railway v. Carl, 227 U.S. 639, 33 S. Ct. 391, 57 L. Ed. 683 (1913), holds consumers to a conclusive presumption of knowledge of the contents of the tariff that the utility with which the consumer does business has filed with the appropriate regulatory agency. Because Emperor Clock was not alleging that the rate actually charged by AT & T exceeded the applicable rate stated in its filed tariff, it was held to know AT & T's rate when it became an AT & T customer and, therefore, its fraud and breach-of-contract claims failed as a matter of law. While Emperor Clock was a dissatisfied consumer whose long-distance services were switched in such a way that it incurred higher telephone bills, the similarity of the Emperor Clock case to the instant case ends at that point. Here, Hall alleges fraud in the formation of the relationship that led to the higher telephone charges; the "filed rate doctrine" is therefore inapplicable. Because Emperor Clock does not rely on the exclusive jurisdiction of the APSC as the basis for the dismissal of the complaint, it is not on point. Hall contends that the APSC does not have exclusive jurisdiction over slamming because § 8-19B-1, Ala.Code 1975, enacted after the commencement of this action, made slamming unlawful and provided a penalty enforceable by the APSC. Section 8-19B-1 provides: This statute became effective August 1, 1997, as previously noted, after Hall had commenced her action against QCC. However, QCC argues that the APSC had jurisdiction over slamming well before the enactment of § 8-19B-1. QCC points to a series of orders entered by the APSC, before the enactment of § 8-19B-1, in which the APSC exercised jurisdiction over slamming allegations. In two of these cases, APSC v. Winstar, APSC order No. 25313 (May 31, 1996); and APSC v. Home Owners Long Distance, APSC order No. 25314 (Aug. 12, 1996), the orders stated: "The APSC has exclusive jurisdiction of the action complained of pursuant to section 37-1-31." We construe § 8-19B-1 as an expression by the Legislature of the need to deal specifically with the practice of slamming. Because the previous grant of authority to the APSC lacked the specificity of the legislation added by the enactment of the new statute, § 8-19B-1 cannot reasonably be read as an indication of a lack of authority by the APSC prior to its enactment. While the conduct of a regulatory agency cannot create jurisdiction in the agency, its activity, considered in light of a statutory grant of exclusive jurisdiction over matters concerning practices of a utility, is very persuasive. The language conferring exclusive jurisdiction in § 37-1-31 can hardly be described as ambiguous. However, even if it were ambiguous, the United States Supreme Court has addressed the question of ambiguity, in the following manner: NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 256-57, 115 S. Ct. 810, 130 L. Ed. 2d 740 (1995). The action of the APSC in regulating slamming pursuant to Title 37, before the Legislature enacted § 8-19B-1, supports the view that the new statute did not add authority to the powers the Legislature previously conferred in broad terms on the APSC in § 37-1-31. Moreover, in order to accept Hall's contention as to the effect of § 8-19B-1, we would have to ignore § 37-2-3, pursuant to which the APSC "is charged with the duty of supervising, regulating and controlling all transportation companies doing business in this state, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses therein by such companies" *1120 and § 37-1-32, under which the APSC has "general supervision of ... corporations operating utilities ..., [and] shall inquire into the management of the business and shall keep itself informed as to the manner and method in which the business is conducted." See, also, Talton, 665 So. 2d at 918-19, where § 37-1-32, along with § 37-1-83, is recognized as the basis for authorizing consumers to file written complaints with the APSC concerning unfair or unjust practices, to exhaust the statutory remedies available to them.[4] Finally, Hall argues that § 37-1-35(4) saves her fraud claim. However, that statute reserves to municipalities the authority to protect the public against fraud in matters other than rates and service regulations and equipment. Hence, it has no application here, for two reasons (1) it regulates the authority of municipalities and (2) Hall's fraud claim arises with respect to a matter involving the performance of duties and the correction of abuses under § 37-2-3 and unfair or unjust practices under § 37-1-83. The trial court's order denying QCC's motion to dismiss is hereby reversed, and the cause is remanded for the trial court to enter an order dismissing Hall's complaint. REVERSED AND REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, and ENGLAND, JJ., concur. [*] 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] Although § 37-4-1(9) is part of the chapter entitled "Public Utilities Other Than Transportation Companies or Motor Vehicle Carriers," and although a telephone company is included in the definition of "transportation company" appearing at § 37-2-1, the APSC is authorized under § 37-1-83 to process claims by any affected person challenging "any rate, service regulation, classification, practice or service in effect or proposed to be made effective [that] is in any respect unfair, unreasonable, [or] unjust." [2] Two Justices concurred in the main opinion in Talton, and four Justices concurred in the result. [3] Hall relies upon Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 96 S. Ct. 1978, 48 L. Ed. 2d 643 (1976), in which the United States Supreme Court permitted Ralph Nader to sue for failure of the airline to disclose its deliberate overbooking practices. As Talton notes, 665 So. 2d at 918, Nader is distinguishable, because the applicable federal statute did not contain provisions for exclusivity of regulatory-agency jurisdiction such as are found in § 37-1-31. [4] Hall alleges that before she filed her lawsuit she filed a complaint with the APSC and then heard nothing further from the APSC. But, according to an affidavit filed by QCC, the APSC closed Hall's file after QCC responded by letter to Hall's complaint and refunded Hall 50% of the cost of all calls processed by QCC. Because the sufficiency of the APSC's action can be reviewed only by the Circuit Court of Montgomery County, pursuant to § 37-1-120, the review of the APSC's action in regard to Hall's complaint is not before us; thus, we do not reach the question of the sufficiency of any action taken by the APSC in response to Hall's complaint.

January 28, 2000

780e1cf9-8f3f-480d-9d1c-90d0001ecb9f

Luck v. PRIMUS AUTO. FINANCIAL SERVICES, INC.

763 So. 2d 243

1981826

Alabama

Alabama Supreme Court

763 So. 2d 243 (2000) Aaron LUCK and Amy Luck v. PRIMUS AUTOMOTIVE FINANCIAL SERVICES, INC. 1981826. Supreme Court of Alabama. February 11, 2000. *245 Frank H. Hawthorne, Jr., and C. Gibson Vance of Hawthorne, Hawthorne & Vance, L.L.C., Montgomery, for appellants. C. Randal Johnson, Charles A. Stewart III, and Gary Bryce Holder of Sirote & Permutt, P.C., Birmingham, for appellee. HOUSTON, Justice. Aaron Luck and Amy Luck filed a complaint in the Montgomery Circuit Court against Jack Ingram Motors, Inc. ("Jack Ingram"); Roy Crow, a salesman for Jack Ingram; and Primus Automotive Financial Services, Inc. ("Primus"). The plaintiffs alleged fraud, suppression, and civil conspiracy. Each defendant moved for a summary judgment; the court entered a summary judgment in favor of Primus, but denied the motions of the other defendants. The court made Primus's summary judgment final, pursuant to Rule 54(b), Ala. R. Civ.P. The plaintiffs appeal from the summary judgment for Primus. We affirm. The plaintiffs leased a Mazda 626 automobile from Jack Ingram. Crow, the salesman, explained to the plaintiffs a written lease agreement; the plaintiffs then signed that agreement and Crow signed it on behalf of Jack Ingram. The lease was assigned to Primus. Primus had provided Jack Ingram with a handbook setting out the terms on which Primus would accept the assignment of a lease. Furthermore, Primus had supplied Jack Ingram with forms that had Primus's corporate name printed at the top; these forms were commonly used by Jack Ingram when negotiating lease transactions with customers. Primus is not, however, the exclusive source of financing for automobiles leased through Jack Ingram, and customers who lease their vehicles through Jack Ingram are not obligated to finance their leases through Primus. They may choose among several sources of financing, including finance companies, banks, and credit-card companies. The plaintiffs alleged that Primus had committed fraud through misrepresentations made directly by Primus to them and also through misrepresentations made to them by Jack Ingram, which the plaintiffs say was acting as an agent of Primus. The plaintiffs argue that the summary judgment was improper both as to the fraud claims and as to the civil-conspiracy claim. They make no argument here relating to the suppression claim. In reviewing a ruling on a summary-judgment motion, this Court applies the same standard the trial court applied to the evidence to determine whether the evidence created a genuine issue of material fact. Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988). A summary judgment for the defendant is generally inappropriate when the plaintiff has presented substantial evidence of each element of the cause of action, but if there is no substantial evidence as to some particular element essential to a cause of action, or if for some other reason there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law, then the court should enter a summary judgment. Ex parte General Motors Corp., [Ms. 1971318, September 24, 1999] ___ So.2d ___, ___ (Ala.1999). The plaintiffs argue that Primus directly misrepresented to them facts concerning an "acquisition fee." Specifically, they contend that Crow told them they would not have to pay an "acquisition fee," and that the documents related to the lease indicated that they were not paying such a fee. However, they say they later discovered that while they did not pay such a fee "up-front," a $450 "acquisition fee" had in fact been charged to them and had been incorporated into their monthly payments. A party alleging fraud by misrepresentation must prove four elements: (1) that the defendant made a false representation concerning an existing material fact; (2) that the defendant made that *246 misrepresentation while knowing that it was false, or made it recklessly, or made it with no knowledge as to its truth or falsity; (3) that the plaintiff reasonably relied on the misrepresentation; and (4) that the plaintiff incurred damage proximately caused by the reliance. Ex parte Government Employees Ins. Co., 729 So. 2d 299, 304 (Ala.1999). While the general rule, as just stated, contains the element of "reasonable reliance," that element is not applicable in this particular case. This case was filed before this Court released its opinion in Foremost Insurance Co. v. Parham, 693 So. 2d 409 (Ala.1997), on March 14, 1997. The Foremost Insurance opinion substituted the "reasonable reliance" element for the element of "justifiable reliance," which had formerly applied in fraud cases. That change in the law was prospective. Thus, in this particular case, the plaintiffs would have to prove "justifiable" reliance on Primus's alleged misrepresentations. The plaintiffs failed to prove the first element of misrepresentation. They presented no evidence indicating any contact between them and Primus at any time during this transaction. Crow handled all of the negotiations on behalf of Jack Ingram. Primus was not involved until after the lease had been negotiated. Having no contact with the plaintiffs, it was impossible for Primus to falsely misrepresent a fact to them. Thus, the plaintiffs have no valid claim based on an alleged direct misrepresentation. The plaintiffs claim that the financing forms themselves, furnished by Primus to Jack Ingram, make a misrepresentation. The plaintiffs' brief, however, more accurately reflects an argument that the wording and the numbers entered on the form by Crow constitute a misrepresentation i.e., a statement to the effect that they would not be paying an acquisition fee, when in fact they were paying such a fee. The blank forms themselves contain no misrepresentation. The plaintiffs failed to prove that Primus had a part in negotiating the transaction, or had a part in any other aspect of the transaction as it pertained to the acquisition fee, and they failed to prove their contention that the forms themselves misrepresent the facts concerning the acquisition fee. Thus, they failed to present substantial evidence of one of the elements of fraud. The summary judgment was proper as to the plaintiffs' claim of fraud based on alleged misrepresentations made directly by Primus. The plaintiffs also argue that Primus is vicariously liable for the actions of Jack Ingram because, they claim, Jack Ingram was acting as an agent of Primus, and as Primus's agent made misrepresentations concerning the acquisition fee. They support this claim with the fact that Primus provided Jack Ingram with a handbook containing guidelines for leases that Primus will accept; the fact that Primus provided Jack Ingram with forms; and the fact that Primus had the right to purchase the lease contract between Jack Ingram and the plaintiffs after it was executed. In Kimbrel v. Mercedes-Benz Credit Corp., 476 So. 2d 94 (Ala.1985), this Court held that actions similar to those alleged by the plaintiffs in this case are not evidence of a principal-agent relationship between the finance company and the dealership: Id. at 97. Furthermore, this Court has consistently upheld this principle. Turner v. Deutz-Allis Credit Corp., 544 So. 2d 840 (Ala.1988) (holding that the dealer's presenting and offering the finance plans of a finance company was not evidence of a principal-agent relationship); Battles v. Ford Motor Credit Co., 597 So. 2d 688 (Ala. 1992) (finance company's right of approval and the fact that its name appeared on forms did not establish agency); Mardis v. Ford Motor Credit Co., 642 So. 2d 701 (Ala. 1994) (proof of dealer's offering finance plan does not establish principal-agent relationship). The evidence offered as proof of an agency relationship in the present case is similar to the evidence presented in those cases cited above. It is clear that there is no principal-agent relationship between Primus and Jack Ingram. The plaintiffs also contend, as part of their agency argument, that Primus ratified the lease agreement that was negotiated and executed by them and Crow. In ratifying it, they allege, Primus became a party to the alleged misrepresentation. We disagree. As with the general agency question above, this Court has held that factors such as the finance company's right of approval and the appearance of the finance company's name on forms does not amount to a ratification of any statements made by the dealer during its negotiations with the customer. Kimbrel, 476 So. 2d at 97; Mardis v. Ford Motor Credit Co., 642 So. 2d 701, 705. Consequently, it is clear that Primus, in accepting the lease, was not ratifying statements or representations made during the negotiations between Crow and the plaintiffs. Therefore, the summary judgment was also proper as to the plaintiffs' claim of fraud based on alleged misrepresentations of an agent. The plaintiffs claim that Primus conspired with Jack Ingram and Crow in order to defraud the plaintiffs. In order to succeed on a civil-conspiracy claim, a plaintiff must prove a concerted action by two or more people that achieved an unlawful purpose or a lawful end by unlawful means. McLemore v. Ford Motor Co., 628 So. 2d 548 (Ala.1993); see also AmSouth Bank, N.A. v. Spigener, 505 So. 2d 1030, 1040 (Ala.1986). In order to prove a conspiracy, a plaintiff may present circumstantial evidence. Eidson v. Olin Corp., 527 So. 2d 1283, 1285 (Ala.1988). The plaintiffs support their conspiracy claim by offering evidence of four things they say show a conspiracy between Primus and Jack Ingram: (1) that Primus provided Jack Ingram with a handbook, which the plaintiffs say instructed Jack Ingram how to hide the acquisition fee in the "cap cost" and not disclose it to the customer; (2) that Primus must have learned of the misrepresentation when it reviewed the forms, which were filled out by the plaintiffs and Crow, during the process by which it approved the assignment of the lease, and that it should be held to have thereby ratified Crow's actions; (3) that Primus received all of the proceeds of the acquisition fee; and (4) that the lease, on its face, misrepresents the fact that other fees can be rolled into the monthly lease payment when it states that there are no other charges payable monthly. The handbook issued by Primus to Jack Ingram offers no evidence whatever of a conspiracy. We have thoroughly reviewed the pages of the handbook cited by the plaintiffs in support of their proposition that the handbook includes "instructions for Mazda dealers as to how to charge an acquisition fee to their lease customers, hide the acquisition fee in the cap cost and not disclose the acquisition fee to customers," as well as the remaining portions of the handbook, and we can find absolutely no evidence of any such instruction. Instead, the pages referred to by the plaintiffs instruct the dealer only on how to properly fill out the forms if the customer wishes to have the lease assigned to Primus. *248 An example within the handbook does include a $450 acquisition fee that was applied to the total amount, which was then used to determine monthly payments, but the handbook in no way advises the dealer to hide this fee. The handbook, in its entirety, is designed to provide certain guidelines for dealers' participation in the Primus lease programs; it provides no evidence of a conspiracy. The second and fourth items mentioned by plaintiffs both deal with the face of the lease forms that were provided to Jack Ingram by Primus. The plaintiffs claim that these forms indicate the misrepresentation, and they claim that Primus had knowledge of the misrepresentation, based on its dealing with the forms when it agreed to accept an assignment of the lease. Nothing in the lease documents indicates a misrepresentation. The lease worksheet clearly points out that no acquisition fee was included in the "INITIAL CHARGES" section of the worksheet, but that it was included in the total cost of the transaction indicated by the "NET AGREED VALUECAPITALIZED COST" section. In other words, the worksheet indicates that while the plaintiffs would not have to pay an acquisition fee up-front, such a fee would be included in the total amount that was used to calculate the monthly lease payments. Furthermore, the lease itself makes no misrepresentation, contrary to the plaintiffs' claim. On the lease, the line labeled "Other Charges Payable Monthly" comes after the line that states the monthly payment, a payment that already included the acquisition fee. Therefore, the "Other-Charges-Payable-Monthly" line could refer only to payments that would be made monthly over the term of the lease other than the monthly payments, which had already been stated. Therefore, it is clear that the documents evidence no misrepresentation. The other item the plaintiffs offer as proof that Primus was involved in a conspiracy is the fact that Primus received all of the proceeds of the acquisition fee. Primus receives proceeds from leases because it purchases leases from the dealer. In other words, the leases are assigned to Primus, and therefore Primus is entitled to the proceeds, including the acquisition fee, which can be built into the monthly payments. If this made Primus a conspirator, then all other possible assignees used by Jack Ingram, such as finance companies, banks, and credit-card companies, could also be conspirators. We do not agree that this is evidence of a conspiracy. Therefore, we conclude, the plaintiffs failed to present substantial evidence indicating a conspiracy between Primus and Jack Ingram. The summary judgment was proper as to the conspiracy claim. The summary judgment for Primus is affirmed. AFFIRMED. MADDOX, SEE, BROWN, and ENGLAND, JJ., concur.

February 11, 2000

ffebbeb1-022e-43cb-a297-738b81115729

Byrd v. Petelinski

757 So. 2d 400

1980919

Alabama

Alabama Supreme Court

757 So. 2d 400 (2000) Riley BYRD v. Edward PETELINSKI. 1980919. Supreme Court of Alabama. January 7, 2000. Samuel G. McKerall of McKerall, Lee & Fincher, L.L.C., Gulf Shores, for appellant. Mark D. Ryan of Wilkins, Bankester, Biles & Wynne, Bay Minette, for appellee. HOUSTON, Justice. The defendant Riley Byrd appeals from a judgment entered on a jury's verdict for the plaintiff Edward Petelinski. For the following reasons, the appeal is dismissed. Petelinski sued Byrd on January 24, 1997, seeking compensatory and punitive damages based on several legal theories. A jury, on April 15, 1998, awarded Petelinski $31,500 in compensatory damages and $65,000 in punitive damages. On the same date, immediately following the trial, the court entered a judgment on that verdict. After the jury had been excused, the following discussion took place between the court and one of the attorneys: On May 14, 1998, within 30 days of the entry of the judgment, Byrd filed a motion for a judgment as a matter of law, pursuant to Rule 50(b), Ala.R.Civ.P. He also filed, that same day, a Rule 59 motion for a new trial or, in the alternative, to alter, amend, or vacate the judgment. In his new-trial motion Byrd alleged, among other things, that the verdict was against the great weight of the evidence. On June 23, 1998, the trial court conducted a hearing, pursuant to Ala.Code 1975, § 6-11-23(b), on the issue of excessiveness of the punitive-damages award. Section 6-11-23(b) provides in pertinent part that "[i]n all cases wherein a verdict for punitive damages is awarded, the trial court shall, upon motion of any party, either conduct hearings or receive additional evidence, or both, concerning the amount of punitive damages." (Emphasis added.) Approximately seven months later, on January 25, 1999, the trial court entered an order purporting to deny each of Byrd's post-judgment motions. Byrd filed his notice of appeal on March 3, 1999. Rule 59.1, Ala.R.Civ.P., provides in part: Relying on Rule 59.1, Petelinski contends that at the end of the 90th day after Byrd had filed his postjudgment motions those motions were denied by operation of law and that after that date the trial court had no jurisdiction over the case. (The 90th day from the filing of the motions would have been August 12, 1998.) Petelinski argues that Byrd had to file his notice of appeal within 42 days of August 12, 1998, and that Byrd's appeal, filed on March 3, 1999, was untimely. Byrd contends that Rule 59.1 had no application. He argues that because the trial court sua sponte announced that it would hold a hearing to determine whether the punitive-damages award was excessive, the "motion" mentioned in § 6-11-23(b) was unnecessary. (The motion referred to in that Code section is a postjudgment motion pursuant to Rule 59, and a Rule 59 motion is one of the motions referred to in Rule 59.1.) According to Byrd, there was no final judgment until January 25, 1999, when the trial court entered its order independently reassessing the punitive-damages award pursuant to § 6-11-23(b). We conclude that Byrd's appeal was untimely. The trial court entered a final judgment for Petelinski on April 15, *402 1998. See Rule 54(a), Ala.R.Civ.P. The trial court was under no statutory obligation to conduct a hearing pursuant to Hammond and Green Oil on the issue of excessiveness of the punitive-damages award until Byrd had raised that issue by a proper motion. Section 6-11-23(b) does nothing more than require the trial court, "upon motion of any party," to conduct a hearing or receive additional evidence concerning a jury verdict awarding punitive damages. In the absence of such a motion, the trial court is not required to conduct such a hearing or to receive additional evidence. See King Motor Co. v. Wilson, 612 So. 2d 1153 (Ala.1992). The record indicates that the trial court was concerned that, standing alone, its act of raising the excessiveness issue on its own, instead of waiting for Byrd to raise it in the usual manner in a Rule 59 motion for a new trial, see Feazell v. Campbell, 358 So. 2d 1017 (Ala.1978); Fallaw v. Flowers, 274 Ala. 151, 146 So. 2d 306 (1962), would not suspend the running of the time within which to file an appeal. See Rule 4(a)(3), Ala.R.App.P., which states that "[t]he filing of a post-judgment motion pursuant to Rules 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure ... shall suspend the running of the time for filing a notice of appeal." We are cited no authority (and we have found none) to support Byrd's contention that the trial court's sua sponte decision to conduct a hearing pursuant to § 6-11-23(b) suspended the running of the time for Byrd to file an appeal. See Schiffman v. City of Irondale, 669 So. 2d 136, 138 (Ala.1995) ("The running of the 42-day period [within which an appeal must be filed] can be tolled only by the timely filing of a post-judgment motion pursuant to Rule 50, 52, 55, or 59, Ala. R.Civ.P."). In any event, the record indicates that Byrd's attorney heeded the trial court's admonition to file a Rule 59 motion challenging the amount of the verdict. The January 25, 1999, order clearly indicates that the trial court considered the excessiveness issue to have been presented in Byrd's Rule 59 motion. That order reads in part as follows: If a trial court does not rule on a postjudgment motion within 90 days, it loses jurisdiction to rule on the motion, unless the time for ruling on the motion has been extended by the express consent of all the parties or by the appellate court to which an appeal of the judgment would lie. Any extension of the 90-day period must be of record before the 90-day period expires. Ex parte Caterpillar, Inc., 708 So. 2d 142 (Ala.1997). The record in this present case does not indicate that the parties consented to an extension of time for the trial court to rule on Byrd's post-judgment motions, and this Court did not grant such an extension of time. Therefore, the trial court lost jurisdiction to rule on Byrd's postjudgment motions at the end of the 90th day after those motions were filed. Byrd had 42 days from the date of the denial of his motions by operation of law, i.e., 42 days from August 12, 1998, to file his notice of appeal. Rule 4(a)(1) and (3), Ala.R.App.P. Because Byrd did not file his notice of appeal until March 3, 1999, this Court's appellate jurisdiction was not invoked and this appeal is due to be dismissed. See Rule 2(a)(1) and Rule 3(a)(1), Ala.R.App.P.; Schiffman v. City of Irondale, supra at 138 ("The time *403 for filing a notice of appeal is jurisdictional.") APPEAL DISMISSED. MADDOX, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.

January 7, 2000

3dfa7847-fd4f-4583-a7bb-690ed32cd430

Thompson Tractor Co. v. Fair Contracting Co., Inc.

757 So. 2d 396

1981290

Alabama

Alabama Supreme Court

757 So. 2d 396 (2000) THOMPSON TRACTOR COMPANY, INC. v. FAIR CONTRACTING COMPANY, INC. 1981290. Supreme Court of Alabama. January 7, 2000. *397 John D. Watson and James F. Archibald III of Bradley, Arant, Rose & White, L.L.P., Birmingham, for appellant. Russell Jackson Drake and Peter H. Burke of Whatley Drake, L.L.C., Birmingham; and Silas G. Cross, Robert F. Prince, and Erby J. Fischer of Prince, Poole & Cross, P.C., Tuscaloosa, for appellee. HOUSTON, Justice. This is an arbitration case. Thompson Tractor Company, Inc. ("Thompson"), entered contracts over a period of years with Fair Contracting Company, Inc. ("Fair"), by which Thompson rented equipment to Fair. Rental contracts entered by those parties during the period 1997 to 1999 generally contained agreements to arbitrate disputes. Rental contracts entered during the period 1995 to 1996 had not contained arbitration agreements. The arbitration agreements provided for arbitration of disputes between these parties arising out of "any prior negotiations or dealings" between them. Fair sued Thompson, stating claims related to the rental contracts. The trial court denied the defendant Thompson's motion to compel arbitration of Fair's claims. Thompson appealed. The question here is whether the arbitration agreements in the later rental contracts require Fair to arbitrate its claims based on the earlier rental contracts. We conclude that they do. Therefore, we reverse the order denying the motion to compel arbitration and remand. Fair filed a purported class action seeking damages from Thompson on theories of breach of contract, unjust enrichment, and assumpsit, alleging that Fair and other members of the putative class ("the class") had rented construction equipment from Thompson, and that Thompson had improperly passed along to Fair and the *398 class the Alabama Rental Tax[1] that Thompson paid to the State of Alabama on the rentals. Thompson filed a motion to compel arbitration, based upon the arbitration agreements in Thompson's rental agreements with Fair and the class from 1997 to 1999. Fair amended the complaint to assert only claims arising out of the rental agreements entered into by the parties in 1995, 1996, and on unknown later dates, that did not contain arbitration clauses. By affidavit of Ford Williams, the president of Fair, Fair introduced lease agreements with Thompson that were executed before June 7, 1996, which did not contain arbitration clauses. By affidavits of Tom McGough, vice president of Thompson, Thompson introduced lease agreements with Fair that were executed after June 7, 1996, with the latest one being dated March 22, 1999 (more than five months after the complaint was filed), which did contain arbitration clauses. Those arbitration clauses were in all relevant parts identical to the arbitration clause quoted later in this opinion. The trial court denied Thompson's motion to compel arbitration. Thompson appealed. An appeal is the proper method of challenging a trial court's order refusing to compel arbitration. A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358, 360 (Ala.1990). This case presents a question of law. Our review is "de novo." See Patrick Home Center, Inc. v. Karr, 730 So. 2d 1171 (Ala.1999). The scope of the disputes embraced by an arbitration clause is a matter of contract interpretation. Allied-Bruce Terminix Companies, Inc. v. Dobson, 684 So. 2d 102, 107 (Ala.1995). When dealing with an unambiguous arbitration clause, the court will determine the parties' intent at the time the contract was executed by analyzing the plain language of the arbitration clause. Coastal Ford, Inc. v. Kidder, 694 So. 2d 1285, 1288 (Ala.1997). "`[I]f in its terms a contract is plain and free from ambiguity, then there is no room for construction and it is the duty of the court to enforce it as written.'" Ex parte Conference America, Inc., 713 So. 2d 953, 956 (Ala.1998), quoting Ex parte South Carolina Ins. Co., 683 So. 2d 987, 989 (Ala. 1996). The arbitration provisions in the 1997-99 leases between Thompson and Fair provide as follows: (Bold-print emphasis original; other emphasis added.) Fair contends that the language in the arbitration clause applies to the specific lease or transactions contemplated by the specific lease contract, pointing out that on more than one occasion the arbitration clause refers to "this lease." Thus, it argues, each lease contract stands alone. Thompson contends that Fair and Thompson agreed to arbitrate "all disputes, controversies and claims of any kind and character whatsoever ..., whether based in tort, contract, warranty, or statutory or strict liability," that arose out of or related to any of the following subjects: Thompson contends that item (4) is not limited to "this Lease." By the clear terms of the arbitration clause, it is not. Fair and Thompson agree to arbitrate "all disputes, controversies and claims of any kind and character whatsoever ... arising out of or related to ... any prior negotiations or dealings between [Fair] and [Thompson]." When an arbitration clause clearly indicates that disputes related to prior transactions are to be arbitrated, those disputes must be arbitrated when one of the parties to the transaction demands arbitration. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Kirton, 719 So. 2d 201 (Ala.1998). See also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Kilgore, 751 So. 2d 8 (Ala.1999); Kenworth of Dothan, Inc. v. Bruner-Wells Trucking, Inc., 745 So. 2d 271 (Ala.1999), and A.G. Edwards & Sons, Inc. v. Syvrud, 597 So. 2d 197 (Ala.1992). Fair contends that each equipment lease must stand alone and that, because the 1995 and 1996 equipment leases contain no arbitration clauses, any disputes relating to negotiations or dealings between Fair and Thompson as to those leases would not be covered by the arbitration clauses in the subsequent leases. However, the question is not whether the dispute arose from the contract containing the arbitration clause but, rather, whether the dispute arose from the relationship described in the arbitration clause. SouthTrust Securities, Inc. v. McClellan, 730 So. 2d 620 (Ala.1999). Clearly, the relationship between Fair and Thompson that had arisen from their contracts for leasing construction equipment, before the execution of the lease agreements in which the arbitration clauses appear, would come within the term "any prior negotiations and dealings between Lessee and Lessor." *400 Fair agreed to arbitrate "all disputes, controversies and claims of any kind and character whatsoever ... arising out of or related to ... any prior negotiations or dealings between [Fair and Thompson]." This agreement covers the allegations in Fair's amended complaint. The trial court erred in not compelling arbitration. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] Ala.Code 1975, § 40-12-222, provides for that tax. That section reads: "In addition to all other taxes now imposed by law, there is hereby levied and shall be collected as herein provided a privilege or license tax on each person engaging or continuing within this state in the business of leasing or renting tangible personal property at the rate of four percent of the gross proceeds derived by the lessor from the lease or rental of tangible personal property; provided, that the said privilege or license tax on each person engaging or continuing within this state in the business of leasing or renting any automotive vehicle or truck trailer, semitrailer or house trailer shall be at the rate of one and one-half percent of the gross proceeds derived by the lessor from the lease or rental of such automotive vehicle or truck trailer, semitrailer or house trailer; provided further, that the tax levied in this article shall not apply to any leasing or rental, as lessor, by the state, or any municipality or county in the state, or any public corporation organized under the laws of the state, including without limiting the generality of the foregoing, any corporation organized under the provisions of Sections 11-54-80 through XX-XX-XXX; provided further, that the privilege or license tax on each person or firm engaging or continuing within this state in the business of the leasing and rental of linens and garments shall be at the rate of two percent of the gross proceeds derived by the lessor from the lease or rental of such linens and garments. (Acts 1971, 1st Ex.Sess., No. 96, p. 166, § 2.)"

January 7, 2000

eaf450c4-c881-44c9-a3a7-48301d5dcc27

J & J MARINE, INC. v. Bay & Ocean Equipment Co., Inc.

758 So. 2d 549

1980617, 1980867

Alabama

Alabama Supreme Court

758 So. 2d 549 (2000) J & J MARINE, INC. v. BAY & OCEAN EQUIPMENT CO., INC. 1980617 and 1980867. Supreme Court of Alabama. January 7, 2000. Richard W. Fuquay and Kathy P. Sherman of Pittman, Pittman, Carwie & Fuquay, Mobile, for appellant. Jeffrey J. Hartley of Adams & Reese, L.L.P., Mobile, for appellee. BROWN, Justice. On December 31, 1997, the plaintiff, named "Bay & Ocean Equipment Co., *550 Inc." (hereinafter "Bay"), entered into a vessel-construction contract with J & J Marine, Inc. ("J & J"). According to the terms of the contract, J & J would deliver to Bay a custom-built towing vessel on or before March 4, 1998,[1] and Bay would pay the sum of $633,428[2] upon delivery and acceptance of the vessel. The contract contained the following arbitration provision: During the course of construction, J & J incurred additional costs because of "addons" and change orders; the additional costs increased the price of the vessel to more than $700,000. A dispute arose over the increased price and J & J's failure to complete and deliver the vessel in a timely manner. The parties were unable to resolve the dispute. J & J, by written correspondence, threatened to sell the vessel to a third party. On August 20, 1998, Bay sued J & J for injunctive relief, and specific performance, or, alternatively, for damages for breach of contract. The trial court entered a temporary restraining order prohibiting J & J from selling or otherwise transferring ownership of the vessel. After a hearing on the matter, the trial court, on September 24, 1998, entered a preliminary injunction. The trial court's written order stated, in pertinent part: Bay moved to alter or amend the order, arguing that it did not accurately reflect the ruling the trial court had made from the bench at the hearing on the request for a preliminary injunction. Specifically, Bay argued that the trial court had orally ordered Bay to provide "reasonable proof' of financial ability rather than "absolute proof" as required by the written order. J & J, at the trial judge's direction, had drafted the order for the judge to sign. J & J argued that the order was drafted pursuant to the express instructions of the trial court.[3] The trial court amended its order on November 9, 1998, to include the following provisions: (Emphasis added.) J & J moved to vacate the amended order, arguing that the trial court had delved into matters that were beyond the scope of injunctive relief and had decided issues that were subject to arbitration. The trial court denied the motion to vacate. J & J appealed from the order denying that motion (appeal no. 1980617). On that appeal, J & J argues that the trial court's amended order is due to be reversed because, J & J says, the order goes to the underlying contractual dispute, i.e., the price of the vessel, which J & J says is subject to the arbitration clause contained in the parties' contract. Bay agrees that the trial court erred and that the amended order should be reversed. We also agree. *552 J & J sought to invoke the arbitration provision in its first filing with the trial court and in all subsequent filings. Under the Federal Arbitration Act ("FAA"), "[a] written provision in ... a 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, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. Neither party has alleged that the transaction out of which the contract arosethe building of the vesseldid 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). In fact, both parties stipulated at the preliminary-injunction hearing that their dispute was due to be arbitrated. The only issue before the trial court was a request for injunctive relief seeking to block J & J from selling the M/V Caribbean Lady. However, the trial court's amended order goes beyond the requested injunctive relief and directs Bay to provide "reasonable proof" that it will pay J & J $633,428 and further directs J & J to deliver the vessel to Bay for payment in full. This appears to address the merits of the underlying contractual disputes, which are clearly subject to arbitration. Because the arbitration agreement is enforceable under general principles of Alabama law, the trial court must stay proceedings in the case and refer the matter to arbitration. Accordingly, the trial court's order is reversed. In case no. 1980867, J & J appeals from the trial court's partial summary judgment entered in favor of Bay. On November 25, 1998, Bay moved for a partial summary judgment. In its motion, Bay argued that it had provided proof of financing, as required by the trial court's amended order, and that J & J had failed to tender the vessel. Bay asked the trial court to order J & J to deliver the vessel and to execute a bill of sale to Bay for the "outstanding balance of the purchase price as provided in the Vessel Contract." J & J moved to stay the proceedings pending arbitration. The trial court granted Bay's motion for a partial summary judgment, stating in its order: On appeal from the partial summary judgment, J & J claims that the trial court erred in establishing a sum certain payment of which would trigger J & J's obligation to deliver the M/V Caribbean Lady to Bay, free and clear of all liens, claims, and encumbrances. J & J argues that this ruling goes to the merits of the underlying contractual disputes, which it says are subject to the arbitration clause contained in the parties' contract. Bay agrees that the trial court's order is due to be reversed. This Court has held that "trial courts are required to stay or dismiss proceedings and to compel arbitration when it is shown the parties to a lawsuit have entered into a valid contract containing an arbitration agreement." SouthTrust Securities, Inc. v. McClellan, 730 So. 2d 620, 622 (Ala.1999). See also 9 U.S.C. § 3. We agree that the underlying disputes between these parties fall within the scope of the arbitration clause. Thus, the trial court erred in entering the partial summary judgment. That partial summary judgment is reversed. The case is remanded with instructions to stay further proceedings pending arbitration. *553 1980617REVERSED AND REMANDED. 1980867REVERSED AND REMANDED. MADDOX, HOUSTON, COOK, SEE, LYONS, and ENGLAND, JJ., concur. JOHNSTONE, J., concurs specially. JOHNSTONE, Justice (concurring specially). I concur. In its brief the appellee expressly agrees with the appellant that both rulings by the trial court should be reversed and that the cause should be remanded for arbitration. [1] The contract contained the following provision: "Builder shall use its best efforts to deliver the vessel on or before March 4, 1998; provided, however, that Builder will not be responsible for any delay caused by the Owner or in case of the occurrence of any cause of delay beyond the control of the Builder, including, but not limited to, the following: government priorities or intervention by or delays caused by civil, naval, or military authorities; governmental regulations or orders; Acts of God; earthquakes; explosions; lightning; flood; conditions of weather; fire; strikes; or other industrial disturbances; riots; insurrections of [sic] war; sabotage; vandalism; blockades; embargoes; or epidemics." [2] The original contract price of the vessel was $673,428. A $40,000 credit was applied to the purchase price; that left a balance of $633,428. [3] Included in the record is a letter from the trial court to J & J's counsel, wherein the trial court made the following statement: "I stated in open Court, that the Plaintiff Bay & Ocean Equipment Co., Inc. had 30 days in which to either pay J & J Marine, Inc. in full or to have absolute proof that J & J Marine, Inc., would be paid in full."

January 7, 2000

f0fa0b3e-c5b8-44db-b5b7-f13024817b5c

Ex Parte Battles

771 So. 2d 503

1980128

Alabama

Alabama Supreme Court

771 So. 2d 503 (2000) Ex parte Robert BATTLES, Jr. Re Robert Battles, Jr. v. City of Mobile. 1980128. Supreme Court of Alabama. January 28, 2000.[*] Rehearing Denied April 14, 2000. *504 M.A. Wing, Mobile, for petitioner. K. Paul Carbo, Jr. of Cherry, Givens, Peters & Lockett, P.C., Mobile, for respondent. COOK, Justice. We granted certiorari review to determine whether City of Mobile Ordinance No. 39-54 is unconstitutionally broad and, if not, then whether Robert Battles, Jr., was properly convicted for violating that ordinance. That ordinance reads: "(a) It shall be unlawful and an offense against the city for any person to fail to obey the direction or order of a member of the police department of the city while such member is acting in an official capacity in carrying out his duties." Robert Battles, Jr., was charged with failure to obey an order of a police officer; disorderly conduct; and resisting arrest. He was convicted in the Mobile Municipal Court of resisting arrest and failing to obey an order. He appealed to the circuit court, where he was convicted only of failing to obey an order; for that conviction he was fined $250 plus court costs. Battles appealed to the Court of Criminal Appeals, arguing, among other things, that Ordinance No. 39-54 is unconstitutional, both facially and as applied to his case. The Criminal Court of Appeals held that Battles lacked standing to challenge the constitutionality of the statute; it also rejected his other arguments and affirmed his conviction. Battles v. City of Mobile, 771 So. 2d 498 (Ala.Crim.App.1998). Battles argues that Ordinance No. 39-54 is unconstitutionally broad because, *505 he says, there is no limit to its scope. Battles's argument on this point is not persuasive. The ordinance is in fact limited in scope; it restricts itself to any order made by an officer "acting in an official capacity in carrying out his duties." An officer can give only lawful orders if he is acting in his official capacity. If an officer's order is unlawful, then, in giving the order, the officer is no longer acting within his official capacity. Thus, Ordinance No. 39-54 is not overly broad. Even though the ordinance is not overly broad, Battles's conviction is due to be reversed because, we conclude, the evidence indicates that he did not refuse to obey a lawful order. The Court of Criminal Appeals summarized the facts indicated by the record: 771 So. 2d at 501-02. Although Officer Womack was well within his authority in stopping to ask Battles about driving a vehicle on a public street, at night, without his headlights on, the question is whether Battles failed to obey a lawful order. Under the facts and circumstances of this case, we conclude that Battles did not fail to obey "the direction or order of a member of the police department of the city while such member [was] acting in an official capacity in carrying out his duties." Officer Womack attempted to ask Battles some questions regarding his headlights. Battles did not answer, but, because of the protections against self-incrimination (see U.S. Const., amend. V, and Ala. Const. of 1901, art. I, § 6), he was not legally obligated to answer. Officer Womack, had he chosen to do so, could have arrested Battles for driving without his headlights on, because Officer Womack had seen Battles driving the vehicle on a public street, at night and without headlights on. Even though Battles was not under arrest when Officer Womack asked Battles to come to the car and answer some questions, and even though Officer Womack had not yet informed Battles of his constitutional right to remain silent, Battles was not required to answer questions. See Ex parte Marek, 556 So. 2d 375 (Ala.1989) ("the right to remain silent is effective ... regardless of whether the accused is advised of that right"). After Battles refused to answer Officer Womack's questions regarding his headlights, Officer Womack's continued attempts to *506 question Battles regarding his headlights did not convert his inquiries into an "order" requiring Battles to answer. Because Officer Womack had seen Battles driving with no headlights, he did have the authority to ask to see Battles's driver's license; however, he did not ask to see it. If Officer Womack had asked to see Battles's driver's license and if Battles had refused the request, Officer Womack would have been authorized to arrest him for failing to obey a lawful order. But Officer Womack did not ask to see Battles's driver's license. The facts of this case do not show that Battles failed to obey a lawful order. Thus, his conviction is due to be reversed, and he is entitled to a judgment of acquittal on the charge of failing to obey an order of a police officer. The judgment of the Court of Criminal Appeals is reversed, and a judgment is rendered for the defendant. REVERSED AND JUDGMENT RENDERED. HOOPER, C.J., and HOUSTON, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. SEE, J., concurs in the result. 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. [**] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

January 28, 2000

22aeefdb-1ee6-4a7d-be53-6739d18d8c72

Ex Parte State

759 So. 2d 574

1981757

Alabama

Alabama Supreme Court

759 So. 2d 574 (2000) Ex parte State of Alabama (In re Shaber Chamond WIMBERLY v. STATE of Alabama.) 1981757. Supreme Court of Alabama. January 28, 2000.[*] Bill Pryor, atty. gen., and Michelle Riley Stephens, asst. atty. gen., for petitioner. Submitted on petitioner's brief only. Prior report: Ala.Cr.App., 759 So. 2d 568. LYONS, Justice. WRIT DENIED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, JOHNSTONE, and ENGLAND, JJ., concur. BROWN, J., dissents. BROWN, Justice (dissenting). I respectfully dissent from the order denying the State's petition for certiorari review. *575 Shaber Chamond Wimberly was convicted of capital murder and was sentenced to death. The Court of Criminal Appeals reversed Wimberly's conviction, based on the police officer's failure to advise him of his rights under Rule 11(B), Ala.R.Juv.P. (the "juvenile Miranda" rights). That court reversed the conviction despite the fact that the officer had advised Wimberly of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). See Wimberly v. State, 759 So. 2d 568 (Ala.Crim.App.1999). The Court of Criminal Appeals' decision was based on Anderson v. State, 729 So. 2d 900 (Ala.Crim.App.1998), and Young v. State, 730 So. 2d 1251 (Ala.Crim.App.1998). That court wrote: 759 So. 2d at 570. When I served on the Court of Criminal Appeals, I dissented from the majority's holding in Anderson, see 729 So. 2d at 906 (Brown, J., dissenting); Young, 730 So. 2d at 1258 (Brown, J., dissenting); and Little v. State, 739 So. 2d 539, at 543 (Ala.Crim. App.1998) (Brown, J., dissenting). I dissented because, after examining § 12-15-34.1, Ala.Code 1975, I concluded that the Legislature had intended to withdraw from those persons falling within the purview of that statute all protections traditionally afforded a "child." "`It is a "well established principle of statutory interpretation that the law favors rational and sensible construction."'" King v. State, 674 So. 2d 1381, 1383 (Ala. Crim.App.1995) (quoting 2A Norman J. Singer, Sutherland Statutory Construction § 45.12 (5th ed.1992)). Moreover, "`[t]he courts will not ascribe to the legislature an intent to create an absurd or harsh consequence, and so an interpretation avoiding absurdity is always to be preferred.'" Daugherty v. Town of Silverhill, 672 So. 2d 813, 816 (Ala.Crim.App.1995) (quoting 1A C. Sands, Sutherland Statutory Construction § 23.06 (4th ed.1972) (emphasis omitted)). Section 12-15-34.1 provides, in pertinent part: (Emphasis supplied.) The language of this statute could not be clearer: anyone over the age of 16 who commits any of the listed offenses is to be treated as an adult; that person shall be removed from the jurisdiction of the juvenile court. The language of the statute plainly excludes juveniles 16 and older from the definition of a "child," by stating that they are to be treated as adults. In my opinion, the Court of Criminal Appeals' holdingthat the fact that the statute provides that the juvenile is to be treated as an adult does not mean that he was divested of the protections afforded by Rule 11(B), Ala.R.Juv.P.is incorrect. That holding creates a new category of criminal defendant, one who is neither wholly a "child" nor entirely an "adult." Certainly, this could not have been what the Legislature intended when it enacted § 12-15-34.1. In its decision in this case, the Court of Criminal Appeals relied on this Court's decisions in Ex parte Jackson, 564 So. 2d 891 (Ala.1990), and Ex parte Whisenant, 466 So. 2d 1006 (Ala.1985). Its reliance was misplaced. Both of those cases were decided before the Legislature enacted § 12-15-34.1. When those cases were decided, the only method by which juvenile defendants could be tried as adults in the circuit court was by way of a transfer hearing in the juvenile court, as provided for in § 12-15-34. Because every juvenile defendant's case originated in the juvenile court, Rule 11(B) was applicable to the initial encounters between the juveniles and the law-enforcement officers in Jackson and Whisenant. By contrast, § 12-15-34.1 prevents an entire category of juvenile defendants from ever encountering the juvenile-court system. Because none of the proceedings against Wimberly took place in the juvenile court, the Alabama Rules of Juvenile Procedure have no application to him. See Rule 1, Ala.R.Juv.P. ("These rules govern the procedure for all matters in the juvenile court."). The Court of Criminal Appeals' interpretation of § 12-15-34.1 was not a rational one. There may be strong policy arguments in favor of requiring that juveniles removed from the jurisdiction of the juvenile court pursuant to § 12-15-34.1 be advised of the rights enumerated in Rule 11(B), Ala.R.Juv.P. See Anderson, 729 So. 2d at 904. However, it is not the province of this Court to make policy. Our function is to interpret the law. Art. III, § 43, Alabama Constitution of 1901, states: "Courts, above all others, are charged with a very sacred duty not to encroach upon the domain of other departments of government under our constitutional system of government." Hendrix v. Creel, 292 Ala. 541, 545, 297 So. 2d 364 (1974). As this Court stated in Piggly Wiggly No. 208, Inc. v. Dutton, 601 So. 2d 907, 911 (Ala.1992) (quoting Finch v. State, 271 Ala. 499, 503, 124 So. 2d 825 (1960)): Although in its opinion in this case the Court of Criminal Appeals purported merely to interpret § 12-15-34.1, it actually legislated, by choosing to overlook the clear language of the statute. Courts lack the authority to make policy decisions; that authority has been constitutionally assigned to the executive branch and the legislative branch. I believe the opinion of the Court of Criminal Appeals sets a dangerous precedent by disregarding the clarity of the language at § 12-15-34.1 and giving that language a somewhat tortured interpretation. Accordingly, I would grant the State's petition and reverse the judgment of the Court of Criminal Appeals, a judgment based on an erroneous holding that the police officer's failure to advise Wimberly of his rights under Rule 11(B), Ala.R.Juv. P., constituted reversible error. Under the circumstances of this case, the ordinary Miranda warnings traditionally given an adult were sufficient. [*] 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.

January 28, 2000

73acec46-9b02-4542-a659-a17f8ed971ad

Ex Parte Golden Poultry Co., Inc.

772 So. 2d 1175

1981446

Alabama

Alabama Supreme Court

772 So. 2d 1175 (2000) Ex parte GOLDEN POULTRY COMPANY, INC. (Re Melissa Green v. Golden Poultry Company, Inc., d/b/a Gold Kist.) 1981446. Supreme Court of Alabama. April 7, 2000. Robert P. Fann and Michael B. Odom of Fann & Rea, P.C., Birmingham, for petitioner. Robert W. Lee and Wendy N. Thornton of Robert W. Lee & Associates, Birmingham, for respondent. SEE, Justice. Melissa Green sued her employer, Golden Poultry Company, Inc., for workers' compensation benefits for a herniated cervical disc she claimed to have sustained as a result of her work as a chicken trimmer. The trial court found that Green's disc injuries were caused by degenerative disc disease and were not work-related; therefore, the trial court held Green not entitled to workers' compensation benefits. The Court of Civil Appeals reversed, holding that the trial court had failed to consider whether Green's work activities had aggravated a preexisting condition, and it remanded the case for the trial court to determine the degree of Green's disability. Green v. Golden Poultry Co., 772 So. 2d 1172 (Ala.Civ.App.1999). We reverse and remand. Green sought workers' compensation benefits for a disability she claimed was due to a herniated cervical disc. She had begun working as a trimmer for Golden Poultry in September 1992. Her job involved jerking the thigh bone away from the chicken and cutting the bone out of the *1176 thigh as the chicken moved on a belt. After severing the thigh, Green used scissors to cut away the knuckle and cartilage before throwing the thigh on the belt. Green held the scissors in her right hand at all times and used her left hand to grab the thigh. She trimmed approximately 10 birds a minute during an eight-hour shift. It was not uncommon for employees in the trimming department to complain of aches and pains. In September 1994, Green was experiencing pain in her neck and left shoulder. The pain gradually increased. By March 1995, Green began to experience severe pain in her neck and shoulder. On March 13, she reported to her supervisors that she had a cold sensation, numbness, and discoloration in her left hand. Green went to the emergency room that night, and she was taken off work for 10 days. In June 1995, Green's treating physician, Dr. Fisher, noted that Green was "suffering from a chronic inflammatory process that causes pain and is secondarily aggravated by her activities at work." Dr. Fisher subsequently determined that Green suffered from a herniated disc. Thus, when Green was allowed to return to work, she was restricted from lifting or carrying anything weighing over 20 pounds and from engaging in overhead activities. For approximately seven months, Green worked on light-duty status, moving from job to job because of her physical limitations. In October, she was instructed to take medical leave because of the severity of her pain. In January 1996, Green underwent an anterior diskectomy. She continued to seek treatment for her neck, shoulder, and hands, and remained on medication. Green also sought treatment for psychological problems arising from the pain. Her counselor testified that because of her physical and psychological conditions, she would not be able to work in the future. In 1998, Green again sought treatment from Dr. Fisher for neck pain. Dr. Fisher's notes stated that Green suffered from degenerative disc disease that was not a result of her work activities, but that her work at Golden Poultry "may have temporarily exacerbated the symptoms associated with her degenerative disc disease in her neck." According to Green, she had never had problems with her neck and shoulder before working for Golden Poultry. She also testified that no specific incident caused her injury. The trial court found that Green's disc injuries were caused by degenerative disc disease and not by any work-related injuries; therefore, it held, she was not entitled to workers' compensation benefits. The Court of Civil Appeals reversed, holding that "[t]he trial court failed to consider whether Green's work activities aggravated or exacerbated a pre-existing condition," and it remanded the case for the trial court to determine "the degree of Green's disability," i.e., the extent of a compensable injury. 772 So. 2d at 1174. Golden Poultry argues that on its review the Court of Civil Appeals impermissibly weighed the evidence. The applicable standard of review in workers' compensation cases is set forth in Ala.Code 1975, § 25-5-81(e), which provides in pertinent part: It is well "settled that the trial court's findings on disputed evidence in a workers' compensation case are conclusive." Ex parte Ellenburg, 627 So. 2d 398, 399 (Ala. 1993). Moreover, the 1992 amendments to the Workers' Compensation Act "did not alter the rule that [the Court of Civil Appeals] does not weigh the evidence before the trial court." Edwards v. Jesse Stutts, *1177 Inc., 655 So. 2d 1012, 1014 (Ala.Civ.App. 1995). The Court of Civil Appeals determined that the trial court had applied an erroneous standard in determining whether Green's injury was compensable. Concluding that "[t]he trial court failed to consider whether Green's work activities aggravated or exacerbated a pre-existing condition," 772 So. 2d at 1174, the Court of Civil Appeals remanded for a "determination of the degree of ... disability" Green had suffered, thereby implicitly determining that Green had met her burden of proof under the correct test. The Court of Civil Appeals is authorized to determine whether the trial court's decision is supported by sufficient evidence, but it is not authorized to independently weigh the evidence. See Ex parte Alabama Ins. Guar. Ass'n, 667 So. 2d 97, 99 (Ala.1995) (holding that the Court of Civil Appeals committed reversible error in reweighing the evidence in a workers' compensation case). Accordingly, the Court of Civil Appeals erred when it weighed the evidence instead of remanding the case for the trial court to determine "whether Green's work activities aggravated or exacerbated a pre-existing condition," Green v. Golden Poultry, 772 So. 2d at 1174, and, if so, to what extent.[1] See Ex parte Alabama Ins. Guar. Ass'n, 667 So. 2d at 99. The judgment is reversed and this case is remanded for the Court of Civil Appeals to direct the trial court to determine whether Green met her burden of proving that her work activities aggravated or exacerbated a preexisting condition so as to produce a disability, and, if so, for further orders or proceedings not inconsistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] Golden Poultry also argues that the Court of Civil Appeals applied the wrong standard of proof when it weighed the evidence, and that the Court of Civil Appeals' construction of the Workers' Compensation Act denies Golden Poultry equal protection of the law. Our conclusion makes it unnecessary to discuss these issues.

April 7, 2000

effc7e2f-a7e2-47b7-bb9e-b1f139c758bb

AmSouth Inv. Services, Inc. v. Bhuta

757 So. 2d 1120

1980703

Alabama

Alabama Supreme Court

757 So. 2d 1120 (2000) AmSOUTH INVESTMENT SERVICES, INC., and AmSouth Bank v. Usha BHUTA. 1980703. Supreme Court of Alabama. January 28, 2000.[*] *1121 Larry B. Childs and Randall D. Quarles of Walston, Wells, Anderson & Bains, L.L.P., Birmingham, for appellants. Roger S. Morrow, Wesley Romine, and Chandra C. Wright of Morrow, Romine & Pearson, P.C., Montgomery, for appellee. COOK, Justice. AmSouth Investment Services, Inc. ("AIS"), and AmSouth Bank ("AmSouth") are defendants in an action filed by Usha Bhuta. The circuit court denied their motion to compel Bhuta to arbitrate her claims. AIS and AmSouth appealed. We reverse and remand. Bhuta, on September 13, 1994, executed an AIS "Brokerage Customer Agreement" (the "Agreement"). The Agreement authorized AIS to open a "brokerage account," which was intended to "function in the same manner" as an account that she and her husband had jointly opened with AIS in 1983. Indeed, according to Bhuta's complaint, the "new account was to function as the old account functioned except the purpose of the [new] account was to invest in tax free municipal bonds and the account was to be solely in [her name]." More specifically, according to Bhuta's complaint, "it was agreed ... that when interest was paid, bonds matured or other monies were received, said funds would be transferred into an interest bearing account of Usha Bhuta at ... AmSouth Bank." The Agreement contained the following pertinent provisions: (Capital-letter emphasis original; other emphasis added.) Under the heading "Banking Reference" on the Agreement, Bhuta wrote: "AmSouth Bank," along with her account number. Eventually, a dispute developed over the manner in which AIS and AmSouth were managing Bhuta's account. Specifically, her complaint alleged as follows: On July 9, 1998, before Bhuta filed her complaint, AIS and AmSouth commenced arbitration proceedings pursuant to the arbitration provisions in the Agreement. On September 3, 1998, Bhuta filed her complaint, containing eight counts and stating claims of (1) misrepresentation and suppression; (2) breach of contract; (3) breach of fiduciary duty; (4) "negligence/wantonness"; (5) fraud; (6) conspiracy; and (7) conversion. In Count Eight, she sought a judgment declaring that the arbitration provision was "void and unenforceable." On October 22, 1998, the trial court entered an order staying all judicial proceedings, pursuant to a motion by AIS and AmSouth. Bhuta filed a motion to "reconsider" and to vacate that order. On December 17, 1998, in an order containing no findings of fact or conclusions of law, the trial court vacated its October 22 order. The December 17, 1998, order was essentially an order refusing to compel arbitration.[1] AIS and AmSouth appeal from that order. In support of the order denying arbitration, Bhuta makes two arguments requiring discussion. First, she contends that the order the defendants challenge was a proper exercise of the trial court's "authority to adjudicate whether [she] was fraudulently induced into the arbitration provision." Brief of Appellee, at 10. Second, she argues that AmSouth has no "standing to enforce the arbitration agreement." Id. at 18-19. It is well settled that claims of fraud in the inducement are, themselves, subject to arbitration, unless the alleged fraud directly involves the arbitration clause itself. Jones v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 604 So. 2d 332 (Ala.1991); see also Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S. Ct. 1801, 18 L. Ed. 2d 1270 (1967). In Jones, this Court explained: 604 So. 2d at 337 (emphasis in original). However, in making this determination, the court is required to "look[] beyond the ad hoc arguments of counsel" and to determine whether the "claim of fraud actually bears upon the entire agreement and upon the activities of the parties in general." Id. (emphasis added). We conclude that Bhuta's claim does that. As indicated by Bhuta's complaint, the essence of this dispute is a claim that AIS and AmSouth "improperly, wantonly, and/or intentionally mismanaged, converted and/or interfered" with Bhuta's investments, by "failing to properly manage and invest said funds." Even more specifically, Count Five of her complaint, which set forth the fraud allegations, averred that AIS "represented to [Bhuta] that [it] would properly transfer interest and proceeds from the investment, sale or maturity of bonds to [Bhuta's] interest bearing account." The complaint further alleged that these representations "were false and [that] Defendants knew such representations were false at the time that they were made." Bhuta argues that the arbitration clause was fraudulently induced. She bases this argument on the alleged representation that her individual account would "function in the same manner as" the joint account she and her husband had opened with AIS in 1983. Unlike the 1994 individual account, the 1983 joint account did not contain an arbitration clause. Thus, Bhuta contends, AIS and AmSouth "fraudulently induced [her to agree to] the arbitration provision." We disagree. The alleged representation that the 1994 account would function as the 1983 account did concerned the substance of the relationship between the parties. There is no allegation that the arbitration clause affected in any manner the function of the account. Indeed, "[t]he fact that the claims will be resolved in arbitration [does] not change the duties and obligations under the contract nor [does] it change the rights and remedies available to the parties in arbitration," and "[t]he only distinction will be the forum in which those rights and remedies are resolved." Beaver Constr. Co. v. Lakehouse, L.L.C., 742 So. 2d 159, 164 (Ala.1999) (quoting with approval the appellant's reply brief) (emphasis added). The arbitration clause simply has nothing to do with the substance of the parties' relationship or the substance of their dispute. In short, "the claim of fraud actually bears upon the entire agreement and upon the activities of the parties in general," Jones, 604 So. 2d at 337, not upon the arbitration clause in particular. Thus, Bhuta's allegations of fraud in the inducement do not provide a basis for avoiding arbitration. Bhuta argues that AmSouth has no "standing to enforce the arbitration agreement," because, she insists, it is neither a signatory to, nor a beneficiary of, the agreement. Brief of Appellee, at 18-19. She relies on Ex parte Stripling, 694 So. 2d 1281 (Ala.1997), in which we directed the trial court to set aside an order compelling the arbitration of a dispute involving SouthTrust Bank. To be sure, the relationship of the financial entities in Stripling, namely, SouthTrust Bank and SouthTrust Securities, resembled the one in this case, just as the function of the "SouthTrust Securities account" the plaintiffs in Stripling opened resembled the function of the account at issue in this case. Distinctions between the two cases, however, are dispositive. Specifically, the arbitration clause in Stripling differed substantially from the one involved in this case. The clause in Stripling provided: 694 So. 2d at 1283. (Emphasis in original.) These emphasized provisions, when considered in connection with the theory of recovery, produced a result different from the one required in this case. In Stripling, investors sought to recover from SouthTrust Bank under the doctrine of respondeat superior, that is, the theory that SouthTrust Securities was an agent or employee of SouthTrust Bank. Id. at 1283. Construing the arbitration provision in connection with the investors' theory of recovery, the Stripling Court explained: Id. (Emphasis added.) Thus, in Stripling, the arbitration provision covered only SouthTrust Securities and its "agents or employees," id. at 1283 (emphasis in Stripling), while the clause in this case expressly applies to every controversy between Bhuta, AmSouth Investment Services, "and the correspondent." (Emphasis added.) AmSouth is named in the Agreement and is defined as the "servicing correspondent." Also, Bhuta manually entered the name of AmSouth Bank on the face of the Agreement under the section "Banking Reference." Indeed, Bhuta does not allege or contend that the term "correspondent" refers to any other entity. AmSouth is, therefore, entitled to the benefit of the arbitration provision and does have standing to enforce it. The trial court erred in refusing to compel arbitration. The December 17, 1998, order is, therefore, reversed, and the cause is remanded for further proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. SEE, J., recuses himself. [*] 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] In a case where the trial court has refused to compel arbitration, "the proper method for seeking review is to appeal that order within 42 days." Ex parte Smith, 736 So. 2d 604, 608 n. 2 (Ala.1999); A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358 (Ala.1990).

January 28, 2000

baa1e827-34f4-4d55-a172-f49610b4d999

Jinright v. Paulk

758 So. 2d 553

1972275

Alabama

Alabama Supreme Court

758 So. 2d 553 (2000) Steven C. JINRIGHT and Lisa J. Jinright v. Dennis PAULK and Option Builders, Inc. 1972275. Supreme Court of Alabama. January 28, 2000.[*] *554 John T. Alley, Jr., and John W. Waters, Jr., of Alley & Waters, P.C., Montgomery, for appellants. Fred B. Matthews of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellees. LYONS, Justice. The plaintiffs Steven C. Jinright and his wife Lisa J. Jinright appeal from a summary judgment in favor of the defendants Dennis Paulk and Option Builders, Inc. We reverse and remand. In 1992, the Jinrights and Paulk, as president of Option Builders, executed a contract under the terms of which Option Builders was to construct a house for the Jinrights. As a part of that construction, Option Builders subcontracted the installation of the exterior walls of the house. That installation consisted of the application of a substance known as "dryvit" and a product known as "R-Wall." The Jinrights experienced problems with the exterior walls of the house, and in April 1996 they began negotiating with Paulk and Option Builders to have the house repaired. On June 27, 1996, the Jinrights filed in the United States Bankruptcy Court for the Middle District of Alabama a voluntary bankruptcy petition under Chapter 13 of the United States Bankruptcy Code. The Jinrights did not disclose to the bankruptcy court their potential claim against Option Builders and others arising from the alleged faulty construction of their house. In August 1996, the bankruptcy court entered a confirmation order approving the Jinrights' Chapter 13 plan, under which they were to pay 78% of the debts owed to their unsecured creditors. The plan had a duration of 60 months. On November 7, 1996, the Jinrights sued Paulk, Option Builders, and other defendants (the entities who had installed the exterior walls and who had supplied and manufactured the product used). On January 9, 1998, the Jinrights settled their claims against the defendants other than Paulk and Option Builders, and on February 2, 1998, those defendants were dismissed. During the pendency of the lawsuit, the Jinrights, on October 30, 1997, filed a motion to amend their bankruptcy plan, under which they reduced to zero the amount to be paid to their unsecured creditors. On January 22, 1998, at a meeting with the bankruptcy trustee at which the Jinrights were to discuss their motion to amend, the Jinrights told the trustee about their lawsuit against Paulk and Option Builders. The Jinrights did not disclose to the trustee that they had settled claims against additional defendants, but the consequences of that omission are not before us. On February 10, 1998, at a hearing before the bankruptcy judge, the Jinrights informed the judge about the pendency of their lawsuit against Paulk and Option Builders. The bankruptcy judge continued the confirmation hearing regarding the Jinrights' amended bankruptcy plan until more information could be developed regarding the potential value of their lawsuit. *555 We have no further details as to the status of the Jinrights' bankruptcy proceedings. On April 14, 1998, Paulk filed a motion for a summary judgment, contending that the Jinrights had contracted not with him, but with Option Builders, for the construction of their house. The trial court scheduled a hearing on the motion for May 1, 1998. On April 23, 1998, Paulk and Option Builders filed a joint motion for a summary judgment in which they contended that the doctrine of judicial estoppel prevented the Jinrights from pursuing the lawsuit against them. After the hearing, the trial court entered a summary judgment for Paulk and Option Builders, on the ground that the doctrine of judicial estoppel barred the Jinrights from continuing their lawsuit. After their post-judgment motion was denied, the Jinrights appealed. The Jinrights argue that the trial court erred in entering the summary judgment for Paulk and Option Builders on the basis of judicial estoppel. They maintain that they have not asserted conflicting positions in their bankruptcy proceedings and their litigation against Paulk and Option Builders. The Jinrights say that when they initially filed their bankruptcy petition, they listed on their schedule of assets a value for their house that reflected the repairs for which they were then negotiating. When the repairs were not made, however, and the necessity for litigation became apparent to them, the Jinrights say that they then amended their schedule of assets to list a lower value for their house and disclosed the litigation to the bankruptcy trustee and the bankruptcy judge. Paulk and Option Builders insist that the doctrine of judicial estoppel should bar the Jinrights from continuing to pursue their claims against Paulk and Option Builders. The doctrine of judicial estoppel "applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted. Judicial estoppel looks to the connection between the litigant and the judicial system[,] while equitable estoppel focuses on the relationship between the parties to the prior litigation." Selma Foundry & Supply Co. v. Peoples Bank & Trust Co., 598 So. 2d 844, 846 (Ala.1992) (quoting Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414 (3d Cir.), cert. denied, 488 U.S. 967, 109 S. Ct. 495, 102 L. Ed. 2d 532 (1988)). The doctrine is applied to uphold the integrity of the judicial system. Chandler v. Samford University, 35 F. Supp. 2d 861 (N.D.Ala.1999). However, this Court has recognized a number of limitations upon the rule against asserting inconsistent positions in judicial proceedings. 28 Am.Jur.2d § 70 Estoppel and Waiver (1966) (as quoted with approval in Porter v. Jolly, 564 So. 2d 434, 437 (Ala.1990)). Thus, a party may not claim the benefit of the doctrine of judicial estoppel unless the party can demonstrate that the party against whom the estoppel is sought procured a judgment in its favor as a result of the inconsistent position taken in the prior proceeding. Moreover, the party claiming the estoppel must have been misled by the conduct of the party against whom the estoppel is sought, and consequently changed its position to its prejudice. Id. Paulk and Option Builders rely on two cases in which this Court applied the doctrine of judicial estoppel to preclude a *556 plaintiff who failed to disclose a claim in a bankruptcy proceeding from pursuing related litigation. In Luna v. Dominion Bank of Middle Tennessee, Inc., 631 So. 2d 917, 918 (Ala.1993), we noted that "[a] debtor in [a bankruptcy proceeding] must disclose any litigation likely to arise in a nonbankruptcy [context]." In Bertrand v. Handley, 646 So. 2d 16, 18 (Ala.1994), we stated that in Luna we had "held that the doctrine of judicial estoppel applies to estop a debtor from suing on a claim where the debtor has failed to disclose the claim in an earlier bankruptcy proceeding." We applied that holding in Bertrand. As we will discuss, those cases are distinguishable from the case now before us. First, however, a review of bankruptcy law will be helpful in understanding the features of this case that distinguish it from Luna and Bertrand. United States Bankruptcy Judge Margaret A. Mahoney provides an excellent discussion in In re Griner, 240 B.R. 432 (Bankr.S.D.Ala.1999): 240 B.R. at 436. The Jinrights filed a bankruptcy proceeding under Chapter 13, under which debtors may repay their creditors while maintaining their assets in accordance with a plan developed by the debtors with the approval of the bankruptcy court and their creditors. Those plans may be amended at any time, and last for up to five years. The debtors are not discharged until they have fulfilled the terms of their plans. The Jinrights have not yet received a discharge in bankruptcy. The debtor in Luna filed a Chapter 7 bankruptcy proceeding; in such a proceeding the bankruptcy court liquidates the debtor's assets, if any, and pays creditors whatever funds are available. Most Chapter 7 plans are concluded quickly, and the debtors are discharged when the funds obtained from the liquidation of their assets have been distributed. Luna did not file his lawsuit until some 18 months after *557 he had received his bankruptcy discharge. Furthermore, the defendant in Luna's action was one of the creditors in the bankruptcy proceeding, a proceeding in which Luna had failed to disclose his potential claim against the defendant. This Court applied the doctrine of judicial estoppel to prevent the debtor from suing his creditor after the conclusion of earlier bankruptcy proceedings in which he failed to disclose his claim. Luna, 631 So. 2d at 918-19. The debtor in Bertrand obtained a default judgment in her lawsuit against the defendant, before she commenced her bankruptcy proceedings. She initially filed for bankruptcy protection under Chapter 13, but dismissed that case and refiled, the second time under Chapter 7. After she received her bankruptcy discharge, the defendant sought to set the default judgment aside. This Court applied the doctrine of judicial estoppel to prevent her from pursuing the claim on which the judgment was based, because she had not disclosed the default judgment in her bankruptcy proceeding. Bertrand, 646 So. 2d at 19. The Jinrights' case is more on point with Selma Foundry, a case in which the plaintiff/debtor omitted its claim against the defendant from its initial bankruptcy disclosures, but filed amended disclosure statements approximately three months later; there was no indication that the bankruptcy court or the defendant took any action in reliance on the initial disclosure statements. This Court refused to apply the doctrine of judicial estoppel. 598 So. 2d at 847. The purpose of the doctrine of judicial estoppel will not be accomplished, but, rather, will be frustrated if defendants are allowed to use this doctrine to their advantage at the expense of plaintiffs with valid claims. Paulk and Option Builders will receive a windfall if they are allowed to escape any potential liability to the Jinrights on the basis that the Jinrights failed to list their potential claim in their initial bankruptcy proceeding, even though the bankruptcy court and the trustee have now been fully informed about the lawsuit and the Jinrights' potential claim. Judge Mahoney discussed this problem in In re Griner. We find her order to be well reasoned and instructive: 240 B.R. at 438-39. See also Donato v. Metropolitan Life Ins. Co., 230 B.R. 418 (N.D.Cal.1999). We agree with the Griner court that a debtor's mere knowledge or awareness of a potential claim and the debtor's failure to include the claim as an asset on the bankruptcy schedules filed with the court, without more, are not sufficient to invoke the application of the doctrine of judicial estoppel. Other courts that recognize the doctrine of judicial estoppel as a bar to a debtor's assertion of a claim not identified as an asset in an earlier bankruptcy proceeding require that the party seeking to apply the doctrine demonstrate (1) that the positions asserted by the party against whom the estoppel is sought are in fact inconsistent, and (2) that the inconsistency would allow a party to benefit from the deliberate manipulation of the courts. Chandler, 35 F. Supp. 2d at 863-64. See, also, Ryan Operations, G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355 (3d Cir. 1996); In re Tippins, 221 B.R. 11 (N.D.Ala.1998). Factors such as the chapter under which the debtor sought bankruptcy protection, whether the debtor has been discharged in bankruptcy, and whether the debtor amended the bankruptcy schedules to include the omitted asset should be significant to an inquiry regarding whether to apply the doctrine of judicial estoppel to bar the debtor's claim. Furthermore, under this Court's decision in Porter and the United States bankruptcy court's decision in Griner, a defendant seeking to apply the doctrine must prove prejudice to the defendant. See Porter, 564 So. 2d at 437; and Griner, 240 B.R. at 438. The inquiry regarding the applicability of the doctrine of judicial estoppel to a particular case will raise some questions of fact in addition to questions of law. Among those questions of fact often will be whether a debtor who is engaged in bankruptcy proceedings knew or should have known about claims or causes of action that should be disclosed as assets. We note with approval that the Court of Civil Appeals has so held in Underwood v. First Franklin Financial Corp., 710 So. 2d 424 (Ala.Civ.App.1997). In that case, the court reversed a summary judgment entered on the basis of judicial estoppel, because a question of fact existed as to whether the plaintiff, during her bankruptcy proceedings, had known or should have known that she had causes of action against the defendants she sued approximately eight months after she had obtained a hardship bankruptcy discharge. We conclude that the doctrine of judicial estoppel should not be applied in this case *560 so as to prevent the Jinrights from maintaining their action against Paulk and Option Builders. Although the Jinrights' initial failure in their bankruptcy proceedings to list their claim against Paulk and Option Builders as an asset was inconsistent with the claims they made in their lawsuit against Paulk and Option Builders, nothing before us indicates that the Jinrights will benefit from that omission, nor has there been any showing that Paulk and Option Builders have been prejudiced by the omission. According to the record before us, the Jinrights have pending in the bankruptcy court a motion to amend their Chapter 13 plan so as to pay zero to their unsecured creditors. This case is like Grinerthe application of the doctrine of judicial estoppel would punish the Jinrights and their creditors and would produce a windfall for Paulk and Option Builders. On the other hand, if the Jinrights are allowed to maintain their claim against Paulk and Option Builders, then any recovery obtained by the Jinrights presumably will be available for distribution to their creditors through their bankruptcy plan. We reverse the judgment in favor of Paulk and Option Builders and remand for further proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, JOHNSTONE, and ENGLAND, JJ., concur. BROWN, J., concurs in the result. [*] 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.

January 28, 2000

0a89204c-1458-499c-a7ba-aa3ce1d1e370

Cackowski v. Wal-Mart Stores, Inc.

767 So. 2d 319

1981204

Alabama

Alabama Supreme Court

767 So. 2d 319 (2000) Brenda CACKOWSKI and Michael Cackowski v. WAL-MART STORES, INC., et al. 1981204. Supreme Court of Alabama. January 21, 2000. Rehearing Denied March 31, 2000. *321 R. Willson Jenkins of Jester & Jenkins, Florence, for appellants. Marda W. Sydnor and Dorothy A. Powell of Parsons, Lee & Juliano, P.C., Birmingham, for appellee. James S. Ward of Corley, Moncus & Ward, P.C., Birmingham, for amicus curiae Alabama State Board of Pharmacy. J. Kenneth Guin, Jr., Carbon Hill, for amicus curiae Alabama Pharmacy Ass'n, Inc. Rhonda Pitts Chambers of Rives & Peterson, Birmingham, for amicus curiae Alabama Defense Lawyers Ass'n. BROWN, Justice. Brenda Cackowski and Michael Cackowski, the plaintiffs in a negligence/wantonness action, appeal from a judgment based on a jury verdict returned in favor of the defendant Wal-Mart Stores, Inc. On October 11, 1995, Brenda Cackowski enrolled in a physician-supervised weight-loss program and was prescribed a number of medications: Verelan, Profast, and Pondimin. Verelan is a medication commonly prescribed for high blood pressure. Profast and Pondimin are diet medications.[1] The next day, Mrs. Cackowski went to the Wal-Mart pharmacy in Arab and had the prescriptions filled. The clerk on duty at the pharmacy counter asked Mrs. Cackowski if she wanted to have her prescriptions filled with generic medication, rather than the brand-name medication. Mrs. Cackowski stated that she did. Gavin Gilleland, the pharmacist on duty that day, correctly filled the Profast prescription. However, Gilleland misread the word "Pondimin," thinking the prescription was for Prednisone, a steroid. Instead of giving Mrs. Cackowski Pondimin or its generic equivalent, he gave her Deltasone, the generic equivalent of Prednisone. Because it was the cold and flu season, Gilleland did not think it unusual that a physician would prescribe a diet drug and a steroid (which causes weight gain) for the same person and to be taken at the same time. Although Mrs. Cackowski left the prescription with the pharmacist, her physician had also given her a list of the drugs he was prescribing for her. This list stated that he was prescribing Profast, Pondimin, and Verelan for her. Mrs. Cackowski knew that Gilleland gave her Deltasone rather than Pondimin, but she did not ask Gilleland the difference. Mrs. Cackowski took the Deltasone for 30 days, in accordance with the directions on the prescription. When Mrs. Cackowski finished the prescription, she went back to Wal-Mart to have it refilled. When the prescription was refilled, it was correctly filled and she received Pondimin. However, several days after she began taking the Pondimin, Mrs. Cackowski began to experience blurred vision and lethargy. Her husband became concerned and contacted her physician. Further investigation revealed Gilleland's error. On September 16, 1996, the Cackowskis sued Wal-Mart and its pharmacist Gavin Gilleland, alleging negligence and wantonness in the incorrect filling of Mrs. Cackowski's prescription for diet medication. *322 Mr. Cackowski also claimed a loss of consortium. At trial, Mrs. Cackowski stated that she suffered pain and stiffness in her knees, muscle pain, and acne as a result of taking the steroid Deltasone for 30 days. Moreover, when Mrs. Cackowski stopped taking the steroid and began taking the correct medication, her system went into withdrawal, causing the blurred vision and lethargy. After the mistake in prescriptions was discovered, Mrs. Cackowski had to be put back on the steroid and gradually weaned off the drug. As a result of taking the steroid, Mrs. Cackowski claimed, she had difficulty in concentrating and had memory loss, hair loss, night sweats, joint pain, and swollen glands. Mrs. Cackowski also stated that she became severely depressed and suicidal. Two physicians diagnosed Mrs. Cackowski as suffering from depression and Epstein-Barr virus. One mental-health professional determined that Mrs. Cackowski's depression and anxiety stemmed from steroid use. Wal-Mart presented testimony from two physicians who disputed the long-term effects of the steroids taken by Mrs. Cackowski. They testified that the problems experienced by Mrs. Cackowski were related to the long-term use of the prescribed diet medications, use of the anti-depressant "Serzone," and the "Adenosine" injections she received in conjunction with her weight-loss program. These physicians also disputed whether the active Epstein-Barr virus was present in Mrs. Cackowski's system. According to them, Mrs. Cackowski's test results indicated the presence of the Epstein-Barr antibody in her system, and its presence would indicate that she may have been exposed to the virus at some time in the past. In any event, they said, the presence of the Epstein-Barr virus or antibody in Mrs. Cackowski's system was not related to her use of the steroid Deltasone. The trial court ruled that a pharmacist fell within the definition of "other health care provider" set out in § 6-5-481(8), Ala. Code 1975. Therefore, the court determined, the Cackowskis' claims against Gilleland and Wal-Mart were governed by the Alabama Medical Liability Act ("AMLA"), §§ 6-5-480 through 6-5-488, and §§ 6-5-540 through 6-5-552, Ala.Code 1975, and that those statutes required them to prove their case by "substantial evidence." At the close of the Cackowskis' case, the trial court granted Wal-Mart's motion for a directed verdict as to the Cackowskis' wantonness claim, but denied its motion for a directed verdict on the negligence and loss-of-consortium claims. At the close of all the evidence, the Cackowskis dismissed their claims against Gilleland, leaving only their claims against Wal-Mart. The case was submitted to the jury, which returned a verdict in favor of Wal-Mart. The court entered a judgment on that verdict, and the Cackowskis appeal. The Cackowskis first argue that the trial court erred by requiring them to prove their case by "substantial evidence," as mandated by the AMLA, while Wal-Mart, they say, was required to prove its defense of contributory negligence only to the jury's "reasonable satisfaction." In order to answer this argument, we must determine whether a pharmacist is a "health care provider," as that term is defined in § 6-5-542(1), Ala.Code 1975. That statute defines "health care provider" as "[a] medical practitioner, dental practitioner, medical institution, physician, dentist, hospital, or other health care provider as those terms are defined in § 6-5-481." Section 6-5-481(8) defines "other health care providers" as "[a]ny professional corporation or any person employed by physicians, dentists, or hospitals who are directly involved in the delivery of health care services." The question whether a pharmacist is a health care provider for purposes of the AMLA is a question of first impression. This is not, however, the first time this *323 Court has been called upon to determine whether an individual fell within the definition of "other health care providers" for purposes of the AMLA. Thus, we must look to our earlier decisions for guidance. This Court first addressed this issue in Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So. 2d 156 (Ala.1984). Edward Wyatt, a paraplegic, fell and fractured his femur. He sought treatment from Dr. E.C. Brock, an orthopedic surgeon. Dr. Brock determined that Wyatt's leg could best be treated by the application of a "fracture brace." While Wyatt was hospitalized, Dr. Brock brought James Mason, an orthotist with Tuscaloosa Orthopedic Appliance Company, to see him. Dr. Brock introduced Mason to Wyatt, stating that Mason was "the man who would put the brace on his leg." 460 So. 2d at 158. Several days later, Wyatt complained to Dr. Brock about the brace. Although Wyatt's condition had caused him to develop decubitus ulcers, he contended that the leg brace had caused additional ulcers. The brace was removed and replaced with splints. However, Wyatt developed additional ulcers. Ultimately, an ulcer that developed just above the fracture site became infected; as a result, Wyatt's leg was amputated. Wyatt sued Tuscaloosa Orthopedic Appliance Company and James Mason, alleging negligence and wantonness in connection with the fabrication and application of the leg brace. The jury returned a verdict in favor of Wyatt. The court entered a judgment on that verdict. Tuscaloosa Orthopedic Appliance appealed, contending that Wyatt had failed to offer any expert testimony indicating that Mason's performance had fallen below the acceptable standard for orthotists. This Court reversed the judgment, holding: "Although orthotists are not specifically mentioned in the Alabama Medical Liability Act, § 6-5-480, et seq., Ala.Code 1975, they are health care providers who provide services as prescribed by physicians for their patients." 460 So. 2d at 161. Likewise, in Wilson v. American Red Cross, 600 So. 2d 216 (Ala.1992), this Court was called upon to determine whether the American Red Cross fell within the definition of a health care provider. In that case, Gerald Wilson sued the American Red Cross, alleging negligence and wantonness, after he had contracted hepatitis B from contaminated blood that he had received while hospitalized at University Hospital ("UAB Hospital") in Birmingham. The trial court entered a summary judgment in favor of the Red Cross, and Wilson appealed. This Court affirmed the summary judgment, concluding that the Red Cross came within the phrase "other health care provider," as defined out in §§ 6-5-542 and 6-5-481: 600 So. 2d at 218-19. This Court has also been called upon to determine whether a registered nurse fell *324 within the definition of "other health care provider" as set out in § 6-5-542. In Ex parte Main, 658 So. 2d 384 (Ala.1995), Arnold Fehringer suffered an on-the-job injury to his back. Fehringer's employer's workers' compensation carriers were United States Fidelity & Guaranty Company and Fidelity & Guaranty Insurance Underwriters, Inc. ("USF & G"). USF & G assigned registered nurse Myra McCowan to supervise Fehringer's "rehabilitation." McCowan consulted with Dr. Gaylon Rogers, an orthopedic surgeon, who had treated Fehringer's back injury. Dr. Rogers recommended that Fehringer undergo physical rehabilitation as an outpatient at HealthSouth Rehabilitation Center in Birmingham, and McCowan agreed. During rehabilitation, Fehringer became despondent and began to speak to his mother, Wanda Main, of suicide. Main became concerned, and she told McCowan that she wanted her son to return home. McCowan told Main that she would take precautions to ensure Fehringer's safety. However, Fehringer subsequently committed suicide. Main filed a wrongful-death action in the Winston Circuit Court against USF & G, McCowan, and Bill Malphurs, a "senior adjuster" with USF & G. Thereafter, USF & G, McCowan, and Malphurs requested that the case be transferred to Jefferson County, contending that under the venue provisions of the Alabama Medical Liability Act, venue was proper only in Jefferson County. The trial court agreed. Main petitioned for a writ of mandamus, seeking to have the lawsuit transferred back to Winston County, on the grounds that her case was not a medical-malpractice action because, she argued, none of the defendants was a "health care provider" as defined in § 6-5-542, Ala.Code 1975. We rejected Main's contention, basing our holding on our decision in Wilson v. American Red Cross: 658 So. 2d at 387. The Cackowskis argue that this case is factually distinguishable from Tuscaloosa Orthopedic Appliance Co. v. Wyatt, Wilson v. American Red Cross, and Ex parte Main because in this case, they say, the pharmacist was not "employed" by Dr. Gray. They contend that the term "employed" as used in § 6-5-481 should be strictly defined and limited to situations where there is some kind of employment or contractual relationship between the physician and the individual involved in the "delivery of health care services." However, the term "employ" means "to make use of," as well as "to use advantageously," "to devote or direct [one's time or energies, for example] toward a particular activity or person," "to use or engage the services of," or "to provide with a job that pays wages or a salary." Merriam Webster's Collegiate Dictionary 379 (10th ed.1997). After careful consideration, we conclude that the pharmacist who filled Mrs. Cackowski's prescription was included within the AMLA definition of "other *325 health care provider." To hold otherwise would be inconsistent with our prior decisions, particularly the decision in Tuscaloosa Orthopedic Appliance Co. v. Wyatt, where neither an employment relationship nor a contractual relationship existed between the physician and the orthotist. An individual goes to a physician for treatment of a physical complaint. Upon examining the patient, the physician may determine that a course of medication is necessary to treat the patient's condition. Accordingly, the physician writes out a prescription, which the patient takes to the pharmacy of his choice to be filled. Although it is the physician who prescribes the medication, it is only a pharmacist/pharmacy that can fill the prescription, by supplying the patient with the called-for medication. See § 34-23-1(17) and (18), Ala.Code 1975. Because a pharmacist and/or a pharmacy is inextricably linked to a physician's treatment of his patients, the dispensing of drugs is an integral part of the delivery of health care services to the public. For this reason, we conclude that a pharmacist is within the definition of "other health care provider" set out in § 6-5-481(8), Ala.Code 1975.[2] Our decision today is consistent with previous decisions wherein we have referred to pharmacists as "health care providers" for other purposes. For example, in Bell v. Hart, 516 So. 2d 562 (Ala.1987), this Court addressed the issue whether a pharmacist was competent to testify as an expert witness concerning the correct dosage and effect of a prescription medication. The Court upheld the exclusion of the pharmacist's testimony, but based its decision on the fact that a pharmacist could not testify as to whether a physician had breached the standard of care in prescribing the medication. 516 So. 2d at 570. In his dissenting opinion, Justice Jones specifically referred to the pharmacist as a "health care provider[] whose testimony" was being challenged. Id. More recently, in a workers' compensation case, this Court referred to a pharmacist as a "health care provider." Continental Cas. Ins. Co. v. McDonald, 567 So. 2d 1208, 1213 (Ala.1990). Our decision in this present case is also consistent with our decisions in Sellers v. Picou, 474 So. 2d 667 (Ala.1985), and Baker v. McCormeck, 511 So. 2d 170 (Ala.1987). In those cases, this Court was initially faced with the question whether podiatrists (Sellers) and chiropractors (Baker) were included within the term "medical practitioner," as that term was defined in the Alabama Medical Liability Act. In each case, we determined that they were not. Because we determined that podiatrists and chiropractors were not "medical practitioners," we declined to allow them to be "back-doored" into the AMLA by including those professions within the definition of "other health care providers."[3] See Sellers v. Picou, 474 *326 So. 2d at 668; Baker v. McCormeck, 511 So. 2d at 171. Based on the foregoing, we conclude that the trial court correctly determined that claims against a pharmacist and/or a pharmacy must be proven by substantial evidence. See § 6-5-549, Ala.Code 1975. The Cackowskis next contend that the trial court erred when it entered a directed verdict in favor of Wal-Mart on the wantonness claim. "In considering the question whether the evidence of wantonness was sufficient to be submitted to the jury, this Court must accept as true the evidence most favorable to the plaintiff, and must indulge such reasonable inferences as the jury was free to draw from that evidence." IMAC Energy, Inc. v. Tittle, 590 So. 2d 163, 169 (Ala.1991). Our review of the trial court's ruling on a motion for a directed verdict is de novo. Driver v. National Sec. Fire & Cas. Co., 658 So. 2d 390, 392 (Ala.1995). K.S. v. Carr, 618 So. 2d 707, 713 (Ala.1993). "Wantonness" is defined as "[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others." § 6-11-20(b)(3), Ala.Code 1975. What constitutes wantonness depends upon the facts presented in a specific case. Kennedy v. Jack Smith Enterprises, Inc., 619 So. 2d 1326, 1328 (Ala.1993). Thus, the question before us is whether the Cackowskis presented sufficient evidence indicating that Wal-Mart acted with reckless disregard for the safety of others generally. The Cackowskis argue that, based on our decision in Harco Drugs, Inc. v. Holloway, 669 So. 2d 878 (Ala.1995), we must conclude that they presented sufficient evidence indicating that Wal-Mart acted with a reckless disregard to be entitled to submit their wantonness claim to the jury. They argue that Gilleland should have become suspicious when he filled a prescription for both diet medication and a steroidwhich causes weight gainto be taken at the same time. They also contend that Wal-Mart's failure to employ a clerk or someone else to check that Gilleland correctly filled the prescriptions showed a careless disregard for the safety of its customers. However, after reviewing the record, we conclude that the Cackowskis presented substantially less evidence of recklessness than was presented in Harco Drugs, Inc. v. Holloway. In Holloway, the plaintiffs presented evidence indicating that the pharmacist attempted to decipher an illegible prescription from an oncologist, with the end result being that a heart medication was substituted for the prescribed cancer-fighting drug. We wrote, "The extreme unusualness of a prescription from a cancer specialist supposedly calling for a dangerous heart medication, combined with the alleged illegibility of the prescription, [was] sufficient evidence of a reckless *327 disregard of the safety of others to create a jury question as to whether Harco acted wantonly." 669 So. 2d at 880. Here, the pharmacist, Gavin Gilleland, testified that he had no problems deciphering the physician's writing. Compare Wal-Mart Stores, Inc. v. Robbins, 707 So. 2d 284 (Ala.Civ.App.1997) (wantonness claim upheld where prescription dosage amount was unclear and pharmacist failed to telephone physician to verify dosage). Instead, Gilleland testified, he simply misread the prescription as calling for Prednisone, rather than the called-for Pondimin. This was not a case where the pharmacist should have become suspicious because it would have been unusual for a physician specializing in a particular field to prescribe such a medication. The evidence established that Dr. George Gray was an internist whose practice was concentrated in the areas of preventive medicine, natural medicine, and bariatric medicine. Moreover, because it was the cold and flu season, Gilleland did not think it unusual that a physician would be prescribing a diet drug and a steroid to be taken together. Nor was this a case where the prescription was misfilled repeatedly, as was the case in Holloway. Indeed, when Mrs. Cackowski had the prescription refilled in November, it was correctly filled. When she returned and questioned Gilleland about drowsiness that she had not previously experienced while taking the "generic Pondimin," Gilleland became suspicious, given that there was no generic equivalent for Pondimin. Gilleland's own investigation revealed his error, one that was immediately corrected. Based on the evidence presented, we conclude that the Cackowskis failed to present substantial evidence of wantonness. Accordingly, we agree with the trial court that the evidence presented was inadequate to justify submitting the wantonness claim to the jury. The Cackowskis also contend that the trial court erred in charging the jury that the Cackowskis had to prove their case by "substantial evidence," while, they say, the court required Wal-Mart to prove its affirmative defense of contributory negligence only to the jury's reasonable satisfaction. An appellate court's standard for reviewing a trial court's charge to the jury is as follows: Shoals Ford, Inc. v. Clardy, 588 So. 2d 879, 883 (Ala.1991); see also Sweeney v. Purvis, 665 So. 2d 926, 932 (Ala.1995). During its oral charge to the jury, the trial court stated, in pertinent part: (R.T. 524-29; emphasis supplied.) The Cackowskis argue that the trial court committed reversible error by instructing the jury on substantial evidence. They cite this Court's recent decision in Ex parte Gradford, 699 So. 2d 149 (Ala. 1997), in support of their contention. In Gradford, we held that the trial court committed reversible error by instructing the jury that the plaintiffs burden was "to reasonably satisfy you by substantial evidence." 699 So. 2d at 152. However, it should be noted that Gradford involved a "simple" negligence action, as opposed to a medical-malpractice negligence action such as we have before us.[4] As Justice Houston noted in his opinion concurring specially in Johnson v. Wagner, 678 So. 2d 782, 783 (Ala.1996), the standard of proof is different in a medical-malpractice action: The trial court determined that the Cackowskis' claims against Gilleland and Wal-Mart were governed by the AMLA. As we have previously determined, that decision was correct. Therefore, because the Cackowskis' claims were governed by the AMLA, the trial court correctly instructed the jury that the Cackowskis had to prove their case by "substantial evidence," as expressly required by § 6-5-549, Ala.Code 1975. When taken as a whole, the trial court's instruction fairly and substantially covered the correct standard of proof to be applied in this case. Like the trial court in Johnson v. Wagner, supra, the trial court in this case instructed the jury what the plaintiffs' burden of proof was and explained that burden in accordance with § 6-5-542(5), Ala.Code 1975. Alternatively, the Cackowskis contend that, in the event this Court determines that the correct standard of proof in this case required them to prove their case by substantial evidenceas prescribed by the AMLAthen the AMLA "would be unconstitutional in its application." Specifically, the Cackowskis argue that "if the plaintiff has a higher burden of proof as to negligence (i.e., by substantial evidence), and the defendant has a lesser burden of proof as to contributory negligence (i.e., only by reasonable satisfaction), then such classifications create and involve unequal and unfair treatment in the application of the law and violate the due process and equal protection of the plaintiffs." Although this specific objection was not made during the trial, it was contained in the Cackowskis' motion for a new trial. *330 "The Medical Liability Act [of 1975] was the legislature's response to a crisis which developed nationwide in the 1970's." Reese v. Rankin Fite Mem'l Hosp., 403 So. 2d 158, 161 (Ala.1981). Thereafter, the Legislature passed the Medical Liability Act of 1987. The purpose behind this Act was set out in § 6-5-540, Ala.Code 1975, which stated in pertinent part: In an effort to ensure the continued availability of quality medical services, the AMLA altered the standard of proof in a medical-malpractice case, to require that a plaintiff prove his or her case by "substantial evidence." § 6-5-549, Ala.Code 1975. However, with its adoption of § 12-21-12, Ala.Code 1975, the legislature abolished the "scintilla rule," requiring, instead, that "[i]n all civil actions brought in any court of the State of Alabama, proof by substantial evidence shall be required to submit an issue of fact to the trier of the facts." § 12-21-12(a). Thus, Wal-Mart was also required to prove its affirmative defense of contributory negligence by substantial evidence. Because each side was required to prove its case by substantial evidence, we conclude that § 6-5-549 does not violate the Equal Protection Clause of the United States Constitution, or §§ 1, 6, and 22 of Article I, Constitution of Alabama 1901. However, the trial court's instruction to the jury was erroneous because it was potentially confusing, misleading, or incomplete. See Jefferson Clinic, P.C. v. Roberson, 626 So. 2d 1243, 1247 (Ala.1993); Shumaker v. Johnson, 571 So. 2d 991, 994 (Ala.1990). We note that the trial court appears to have used portions of Alabama Pattern Jury Instructions: Civil, No. 25.21 (2d ed. 1993), in formulating its malpractice charge. Ex parte Wood, 715 So. 2d 819, 824 (Ala. 1998). Given the facts of this case, the trial court should have made it clear to the jury that each party was required to prove its case by substantial evidence to the reasonable satisfaction of the jury. We recognize that this decision conflicts with our holding in Ex parte Gradford, supra. However, we note that Gradford remains the law except in the relatively rare situation, such as in the present case, where contributory negligence is an issue in a medical-malpractice case. The judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion. REVERSED AND REMANDED. MADDOX, HOUSTON, COOK, SEE, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. HOOPER, C.J., concurs in part and dissents in part as to the rationale, and dissents from the judgment. HOOPER, Chief Justice (concurring in part and dissenting in part as to the rationale, and dissenting from the judgment). I must respectfully dissent from that portion of the main opinion holding that the trial court should have instructed the jury that Wal-Mart had to prove its contributory-negligence *331 defense by "substantial evidence." The main opinion cites § 12-21-12, Ala. Code 1975, for the proposition that Wal-Mart was required to prove its defense of contributory negligence by substantial evidence. That statute abolished the "scintilla rule," putting in its place the rule that "[i]n all civil actions brought in any court of the State of Alabama, proof by substantial evidence shall be required to submit an issue of fact to the trier of the facts." However, this Court held in Ex parte Gradford, 699 So. 2d 149 (Ala.1997): 699 So. 2d at 150-51. In contrast, the AMLA, in § 6-5-549, specifically provides: The AMLA altered the standard of proof in a medical-malpractice case, in order to protect "health care providers." Nothing in the AMLA provides that the standard of proof for defenses in a medical-malpractice action shall also have a heightened standard of proof. The trial court properly charged the jury. The AMLA imposes a higher burden of proof on a plaintiff bringing a medical-malpractice claim. The AMLA was not intended to benefit the plaintiff with this higher burden by requiring that a defense be proved by "substantial evidence" as well. I find no violation of the Equal Protection Clause of the United States Constitution, or of §§ 1, 6, and 22 of Article I, Constitution of Alabama 1901, because the unequal treatment has a rational relation to a legitimate state interest"to insure that quality medical services continue to be available at reasonable costs to the citizens of the State of Alabama." Ala. Code 1975, § 6-5-540. I agree with the main opinion that a pharmacist is within the AMLA's definition of "health care provider," and I agree that the trial court properly entered a directed verdict on the wantonness claim. I do not agree that the trial court should have charged the jury that Wal-Mart had to prove its contributory-negligence claim by "substantial evidence." I would affirm the judgment of the trial court. [1] "Profast" is the brand name for the diet drug "Phentermine," and "Pondimin" is the brand name for the diet drug "Fenfluramine." This combination is commonly referred to as "Phen-Fen" and was widely prescribed until Pondimin was removed from the market in September 1997. [2] A number of jurisdictions have likewise determined that a pharmacist and/or a pharmacy is a "health care provider" for medical-malpractice purposes. See Lasley v. Shrake's Country Club Pharmacy, 179 Ariz. 583, 586-87, 880 P.2d 1129, 1132-33 (Ariz.App.1994); Becker v. Meyer Rexall Drug Co., 141 Mich. App. 481, 485, 367 N.W.2d 424, 426 (1985); Boudot v. Schwallie, 114 Ohio App. 495, 496, 178 N.E.2d 599, 599-600 (1961). Other jurisdictions have specifically listed pharmacists as one of the classes of medical personnel included within the definition of a "health care provider." See Everett v. Goldman, 359 So. 2d 1256, 1262 (La.1978); Bell v. Poplar Bluff Physicians Group, Inc., 879 S.W.2d 618, 621 (Mo.Ct.App.1994); Swanigan v. American Nat'l Red Cross, 313 S.C. 416, 419, 438 S.E.2d 251, 252 (1993); Thompson v. Community Health Inv. Corp., 892 S.W.2d 440, 442 (Tex.App.1995), rev'd on other grounds, 923 S.W.2d 569 (Tex.1996); McKee v. American Home Prods. Corp., 113 Wash. 2d 701, 707, 782 P.2d 1045, 1048 (1989). Some jurisdictions have declined to include pharmacists within the definition of "health care providers" if they are not specifically mentioned in the statute. See Sova Drugs, Inc. v. Barnes, 661 So. 2d 393, 394-95 (Fla.Dist.Ct.App. 1995); Mancuso v. Giant Food, Inc., 327 Md. 344, 352, 609 A.2d 332, 336 (1992). [3] We note that § 6-5-549.1, Ala.Code 1975, enacted after this Court had decided Baker, supplemented the AMLA to include licensed chiropractors within the definition of "health care providers." [4] Cf. Hayes v. Luckey, 33 F. Supp. 2d 987 (N.D.Ala.1997), for a discussion of Gradford in a medical-malpractice action. The issue in this present case is narrower than the issue before the district court in Hayes.

January 21, 2000

843f0c67-3fa5-4b79-a73c-7bb7c2e20ac0

Ex Parte Ledford

761 So. 2d 990

1981374

Alabama

Alabama Supreme Court

761 So. 2d 990 (2000) Ex parte Clyde M. LEDFORD et al. (In re Clyde M. Ledford, Martha Ledford, Fred E. Ledford, and Brenda Ledford v. H. Charles Engle, etc., Alice S. Shelley, and Nell T. Koenig). 1981374. Supreme Court of Alabama. January 21, 2000. *991 Roger D. Burton and Charles H. Boohaker of Roger D. Burton, P.C., Birmingham, for petitioners. Bruce M. Green, Pelham; Elliott C. Herrin, Birmingham; and Douglas Corretti and Donna Richardson Shirley of Corretti, Newsom & Hawkins, Birmingham, for respondents. HOUSTON, Justice. Clyde Ledford, Martha Ledford, Fred Ledford, and Brenda Ledford sued H. Charles Engle, Alice S. Shelley, and Nell T. Koenig, alleging fraud, conversion, and the tort of outrage and seeking to rescind a mortgage held by Shelley and Koenig. They filed their action in the Circuit Court of Shelby County. The circuit court entered a summary judgment for the defendants on all claims.[1] The plaintiffs appealed *992 to this Court; this Court transferred the case to the Court of Civil Appeals, and that court, on March 12, 1999, affirmed, without an opinion. Ledford v. Engle, (No. 2971041) ___ So.2d ___ (Ala.Civ.App. 1999) (table). We granted the plaintiffs' petition for certiorari review. We affirm in part, reverse in part, and remand with instructions for further proceedings. Fred Ledford and his wife Brenda Ledford owned a 46-acre tract of land in Chilton County, as well as a home on one acre of land in Shelby County. Fred Ledford had been trying to sell the Chilton County property and had listed it for sale with First Real Estate, a real-estate agency. In 1989, Fred Ledford met Engle and hired him as a financial adviser. After he had hired Engle, Fred discontinued his arrangement with First Real Estate, and, instead, allowed Engle to assist him in finding a buyer and selling the Chilton County property. Engle was not licensed as a real-estate broker. However, he did find buyers for the Ledford property; those buyers were Shelley and Koenig, who are also Engle's sister and a business associate. Shelley and Koenig purchased the Chilton County property from the Ledfords for $55,000, substantially less than the price at which Fred Ledford had listed the property for sale. Shelley and Koenig also lent the Ledfords $53,200, in return for a mortgage on the one-acre parcel of real estate (with a house on it) in Shelby County owned by the Ledfords and on property owned by Fred Ledford's parents (Clyde M. Ledford and Martha Ledford) that surrounded this acre. Engle promised the plaintiffs during the negotiations for the Shelby County property that he would build an apartment complex on that property. The mortgage was executed by all of the owners of the two parcels of the Shelby County property. The transactions (the purchase of the Chilton County land and the loan/mortgage related to the Shelby County land) were closed simultaneously and were intertwined. In addition, the closing contracts specified precisely that the proceeds from both the sale and the loan would be used to pay off numerous debts of the Ledfords. Also included in each contract was a provision for a lump-sum payment to Engle for advances, services rendered, surveys, title policies, fees, appraisals, and expenses. The eventual result was that all of the Ledfords' debts to various entities were paid from proceeds of the sale of the Chilton County property and the loan secured by, the mortgage on the Shelby County property. On appeal, the plaintiffs seek to have the mortgage relating to the Shelby County land rescinded because, they say, it was procured by fraud. In addition, they seek to recover moneys paid to Engle as fees charged for the real-estate services he performed, because, they say, he performed those services without a real-estate broker's license, in violation of Ala.Code 1975, § 34-27-30. The plaintiffs' appeal raised two questions: (1) Was there substantial evidence before the trial court of fraud committed by the defendants during the transactions relating to the Shelby County land and the Chilton County land, and (2) does Engle's lack of a real-estate broker's license prevent him from charging and collecting fees for the services he performed? In reviewing a summary judgment, an appellate court "utilize[s] the same standard as that of the trial court 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). "`Summary judgment [for a defendant] is proper when there is no genuine issue of material fact as to any element of a cause of action, and the defendant is entitled to a judgment as a matter of law. If there is [substantial] evidence ... of every element of a cause of action, summary judgment is inappropriate.'" *993 Ex parte General Motors Corp., [Ms. 1971318, Sept. 24, 1999] ___ So.2d ___, ___ (Ala.1999), quoting Berner v. Caldwell, 543 So. 2d 686, 691 (Ala.1989) (Houston, J., concurring specially); see also Calvert v. Casualty Reciprocal Exchange Insurance Co., 523 So. 2d 361 (Ala. 1988); Nettles v. Henderson, 510 So. 2d 212 (Ala.1987); Wilson v. Brown, 496 So. 2d 756 (Ala.1986). The plaintiffs made two fraud claims one alleging a fraudulent misrepresentation and one alleging promissory fraud. In order to succeed on their fraudulent-misrepresentation claim, the plaintiffs must prove: (1) that the defendants made a false representation concerning an existing material fact; (2) that the defendants either knew the representation to be false, made it recklessly, or made it with no knowledge of whether it was true; (3) that the plaintiffs "justifiably relied" on the representation;[2] and (4) that the plaintiffs incurred damage as a proximate result of their reliance on the representation. Ex parte Household Retail Services, Inc., 744 So. 2d 871, 877 (Ala.1999), citing Cato v. Lowder Realty Co., 630 So. 2d 378, 381 (Ala.1993). It is undisputed that neither Shelley nor Koenig misrepresented any facts to the plaintiffs themselves, but the plaintiffs claim that Engle was acting as their agent and that his acting as a real-estate agent when he in fact held no license was a misrepresentation for which they are liable. The plaintiffs also contend that Engle made a misrepresentation to them when he promised to build an apartment complex on the Shelby County land. Therefore, we focus on the evidence relating to the actions of Engle to determine if the factfinder could find, on the basis of substantial evidence, that he in fact made a misrepresentation of material fact. Fred Ledford stated in deposition testimony that the only misrepresentations Engle made were representations to the effect that he would find a suitable buyer for the Chilton County land and that he was going to build an apartment complex on the Shelby County property. It is clear from the record that Engle did find buyers for the Chilton County landShelley and Koenig. While it might be unusual for buyers to be so closely tied to an agent through whom they are buying real estate, the plaintiffs made no complaints when Engle found these buyers. The plaintiffs were not forced into the sale and the loan transactions, but entered them voluntarily. Consequently, it is clear that Engle did find buyers that the plaintiffs agreed were suitable. The second alleged misrepresentation involves a claim by the plaintiffs that Engle told them he was going to build an apartment complex on the two parcels of Shelby County property, which were owned by the Ledfords and Fred's parents. There was no written contract calling for Engle to build apartments on that land, nor was there any timetable as to when the project would begin. Essentially, the plaintiffs are basing this fraud claim on a promise they say Engle made to them; consequently, this claim is a claim of promissory fraud. See Ex parte City of Gadsden, 718 So. 2d 716, 721 (Ala.1998); Cabnetware, Inc. v. Birmingham Saw Works, Inc., 614 So. 2d 1034 (Ala.1993). A "promissory-fraud" claim requires a plaintiff to prove that "the defendant had no intention of performing as promised and that the defendant made the promise with an intent to deceive." Bailey v. Rowan, 751 So. 2d 504, 507 (Ala.1999); Ex parte Lumpkin, 702 So. 2d 462, 466 (Ala.1997). The record contains no evidence indicating *994 that Engle had any intent to deceive the plaintiffs. Therefore, they failed to present evidence of one of the essential elements of their promissory-fraud claim. The summary judgment was proper as to both fraud claims.[3] The judgment of the Court of Civil Appeals is affirmed as to those claims. The second issue is whether the fact that Engle was not a licensed real-estate broker prevents him from charging and collecting fees from Fred and Brenda Ledford in connection with the sale of their Chilton County land and the loan/mortgage relating to the Shelby County land. The documents related to both the sale of the Chilton County property and the mortgage of the Shelby County property included an agreement between the plaintiffs and Engle that provided that a large portion of the proceeds of the sale and the loan would be paid to Engle as fees for his services. Initially, we must determine whether the applicable statute of limitations has run on the plaintiffs' claim that these agreements, which provided for fees to be paid to Engle, are void. An action arising out of a contract under seal must be brought within 10 years of the signing of the contract. Ala.Code 1975, § 6-2-33. Both the contract for the sale of the Chilton County property and the mortgage on the Shelby County property were contracts under seal. Both were signed in February 1990, and the complaint in this case was filed on February 14, 1997, well within the 10-year period. Consequently, there is no statute-of-limitations problem as to this issue. The requirement that one acting as an agent arranging for the sale of real estate hold a broker's license is set out in Ala.Code 1975, § 34-27-30. That statute provides: If a person acts in violation of this statute, then any agreement to compensate that person for services mentioned in the statute is void and unenforceable. Liles v. Flatley, 643 So. 2d 947, 948 (Ala.1994). See *995 also Culverhouse v. Culverhouse, 420 So. 2d 33, 37 (Ala.1982); Dillard v. Pan-American Invs., Inc., 347 So. 2d 990, 991 (Ala. 1977). In order for the agreements providing for the payment of fees to Engle to be void and unenforceable, Engle must have been performing services as a realestate broker. Engle clearly performed a number of the actions listed in § 34-27-30. He found persons willing to purchase Fred and Brenda Ledford's Chilton County land and helped to negotiate the contract for the sale of that land. A real-estate broker is one who brings together those selling real estate and those buying it and in some way assists in the negotiation of the salepurchase transaction. Dillard, 347 So. 2d at 991. It is undisputed that Engle both introduced the sellers to Shelley and Koenig and assisted in the negotiations of the contracts. Therefore, the record contains substantial evidence indicating that Engle was acting as a real-estate broker. It is irrelevant whether he told the plaintiffs that he did, or that he did not, have a license; it matters only whether he did the things a real-estate broker would have done. Because Engle was at no time licensed as a real-estate broker, it was for the trier of facts to determine if Engle violated § 34-27-30, and, thus, whether the agreements to compensate him for any of the services mentioned in the statute would be void and unenforceable. Engle received a total of $35,700 from the Ledfordsthe sum of $21,000 from the proceeds of the sale of the Chilton County land and the sum of $14,700 from the proceeds of the loan secured by the mortgage for "advances, services rendered, surveys, title policy, fees, appraisal, and expenses." All of these fees were provided for in agreements included within the sales contract and the mortgage. The summary judgment for the defendants on this claim was improper. The judgment of the Court of Civil Appeals is reversed insofar as it affirmed the summary judgment on the claim relating to the validity of the agreements to compensate Engle, and the case is remanded with instructions to direct the trial court to determine what portion, if any, of the $35,700 constituted fees or other payment for those services mentioned in § 34-27-30, services for which Engle could not legally charge. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HOOPER, C.J., and MADDOX, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] The plaintiffs make no argument on appeal regarding the summary judgment as to the conversion and the tort-of-outrage claims. [2] This action was filed before March 14, 1997; on that date this Court decided Foremost Insurance Co. v. Parham, 693 So. 2d 409 (Ala.1997), which changed the rule that a plaintiff alleging fraudulent misrepresentation must prove "justifiable reliance" upon the representation, to a rule requiring that the plaintiff prove "reasonable reliance." [3] The defendants claim that this action was barred by the two-year statute of limitations for fraud actions, § 6-2-38, Ala.Code 1975. Because we conclude that the plaintiffs presented no substantial evidence of a fraudulent misrepresentation, we do not discuss the issue whether the fraud claims were barred by the statute of limitations or the related issue of when the plaintiffs learned of the alleged fraud.

January 21, 2000

82f7249a-e3cf-4450-aa1d-39458524d7f1

Smith v. Atkinson

771 So. 2d 429

1980433

Alabama

Alabama Supreme Court

771 So. 2d 429 (2000) William Christopher SMITH, individually; as father and next friend of Alexandria Smith and Chris Smith, minors; and as administrator of the estate of Monica Smith v. Carl ATKINSON et al. 1980433. Supreme Court of Alabama. February 4, 2000. Rehearing Denied April 28, 2000. *431 W. Lee Pittman and Robert Potter of Pittman, Hooks, Dutton & Hollis, P.C., Birmingham, for plaintiff. Frank J. Stakely and William H. Webster of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for defendant. LYONS, Justice. The United States District Court for the Middle District of Alabama has certified to this Court the following questions, acting pursuant to Rule 18, Ala. R.App. P.: "(1) Does Alabama recognize a cause of action for the independent tort of spoliation of evidence against a third party? and (2) If so, what are the elements of that tort?" The district court's order certifying its questions provides the following background information: On July 20, 1996, William Smith ("Smith"), his wife Monica Smith, and his two children, Alexandria and Chris, were traveling south on U.S. Highway 231 in Montgomery County in a minivan manufactured by Chrysler Corporation. The minivan was struck by another vehicle, which was being driven by Richard Ferguson. As a result of the collision, Monica Smith suffered injuries that caused her death; the remaining three passengers in the minivan suffered bodily injuries. At the time of the collision, Smith had in full force and effect an automobile insurance policy with Metropolitan Property and Casualty Insurance Company ("Metropolitan") that included a provision for underinsured-motorist coverage. Smith filed a claim on the Metropolitan policy. Carl Atkinson, a claims adjuster, handled the claim for Metropolitan. After the accident, Metropolitan took possession of the minivan and arranged to have it delivered to the company's storage facility in Montgomery. Subsequently, Smith began investigating a potential products-liability action against Chrysler Corporation, based on the theory that the minivan in which his wife was killed was defective. On four separate occasions, Smith informed Atkinson and Metropolitan that he intended to bring an action against Chrysler and requested that they preserve the minivan for further inspection. On each occasion, Atkinson agreed to retain the vehicle at the Metropolitan storage facility for Smith's use and inspection. On October 4, 1996, Smith executed a power of attorney to transfer the minivan's title to Metropolitan. At some point thereafter, Smith alleges, Metropolitan, after assuring him the minivan would be preserved for his inspection, negligently allowed the minivan to be destroyed before it could be inspected by Smith or his expert. Smith sued Ferguson and Metropolitan under the underinsured-motorist provision of his automobile insurance policy. On or about September 26, 1997, in exchange for a pro tanto settlement of $150,000, Smith obtained the circuit court's approval and executed documents releasing Metropolitan and Ferguson. Smith specifically released On July 17, 1998, Smith sued Atkinson and Metropolitan (hereinafter those defendants will be referred to together as "Metropolitan") in the Montgomery Circuit Court. The defendants removed the case to the United States District Court for the Middle District of Alabama, on the basis of diversity jurisdiction. Relying on the pro *432 tanto release, the district court dismissed all claims against the defendants except Smith's potential cause of action for the independent tort of evidence spoliation, which was expressly reserved in the release.[1] The district court's certified questions require us to decide whether Alabama recognizes a cause of action for an independent tort of evidence spoliation. This Court has refused to recognize such a cause of action when the spoliator was a defendant in an actionthat included a tort claim other than the alleged spoliation filed by a plaintiff whose evidence was lost or destroyed. See Christian v. Kenneth Chandler Constr. Co., 658 So. 2d 408, 413 (Ala.1995). Under the facts of this case, however, the question whether a remedy exists for one whose evidence was lost or destroyed through the acts of a third party (i.e., a party not alleged to have committed the underlying tort as to which the lost or destroyed evidence related) is squarely before us. The Supreme Court of Illinois has written: "Courts have long afforded redress for the destruction of evidence and, in our opinion, traditional remedies adequately address the problem presented in this case. An action for negligent spoliation can be stated under existing negligence law without creating a new tort." Boyd v. Travelers Ins. Co., 166 Ill. 2d 188, 193, 652 N.E.2d 267, 270, 209 Ill.Dec. 727, 730 (1995). We agree with the majority of states that have resolved this issue and conclude that general principles of Alabama law afford a plaintiff an adequate remedy. Therefore, we see no need to recognize a new cause of action for spoliation of evidence.[2] We hereby recognize a claim against a third party for spoliation of evidence, under the traditional doctrine of negligence; but in regard to such a claim, we recognize that the burden of proof will be shifted from where it is in the ordinary negligence case. As in all negligence actions, the plaintiff in a third-party spoliation case must show a duty to a foreseeable plaintiff, a breach of that duty, proximate causation, and damage. Crowne Invs., Inc. v. Bryant, 638 So. 2d 873, 878 (Ala.1994). We announce today a three-part test for determining when a third party can be held liable for negligent spoliation of evidence. In addition to proving a duty, a breach, proximate cause, and damage, the plaintiff in a third-party spoliation case must also show: (1) that the defendant spoliator had actual knowledge of pending or potential litigation; (2) that a duty was imposed upon the defendant through a voluntary undertaking, an agreement, or a specific request; and (3) that the missing evidence was vital to the plaintiffs pending or potential action. Once all three of these elements are established, there arises a *433 rebuttable presumption that but for the fact of the spoliation of evidence the plaintiff would have recovered in the pending or potential litigation; the defendant must overcome that rebuttable presumption or else be liable for damages. Although there is no general duty to preserve evidence, "Alabama clearly recognizes the doctrine that one who volunteers to act, though under no duty to do so, is thereafter charged with the duty of acting with due care and is liable for negligence in connection therewith." Dailey v. City of Birmingham, 378 So. 2d 728, 729 (Ala.1979).[3] When a third party has knowledge of a pending or potential lawsuit and accepts responsibility for evidence that would be used in that lawsuit, it should be held liable for damage resulting from the loss or destruction of that evidence. A California District Court of Appeal has clarified the duty element of California's tort of negligent spoliation, in Johnson v. United Services Automobile Association, 67 Cal. App. 4th 626, 79 Cal. Rptr. 2d 234 (1998), and, although we decline to adopt California's negligent-spoliation tort in its entirety, we are persuaded by that court's rationale for the method by which the plaintiff in a negligent-spoliation case is to establish the existence of a duty on the part of the defendant. In addition to the voluntary assumption of a duty, mentioned above, the Johnson court recognized two additional ways a duty could be imposed upon a third party: 67 Cal. App. 4th at 635, 79 Cal. Rptr. 2d at 239 (citations omitted). We also agree with Johnson that a third party's constructive notice of a pending or potential action is not sufficient to force upon the third party the duty to preserve evidence. Id., 67 Cal. App. 4th at 635, 79 Cal. Rptr. 2d at 240. "Limiting the usual duty in third-party negligent spoliation to an agreement to preserve, or a voluntary undertaking with reasonable and detrimental reliance, or a specific request, ensures that such a spoliator has acted wrongfully in a specifically identified way." Id., 67 Cal. App. 4th at 637, 79 Cal. Rptr. 2d at 241. Metropolitan argues that imposing on a third party a duty to preserve evidence could result in wasteful and unnecessary record- and evidence-retention practices.[4] We disagree. If the third party does not wish to take responsibility for evidence, it can decline the responsibility, shifting the risk of loss back to the plaintiff. "The specific request to preserve must be accompanied by an offer to pay the cost or otherwise bear the burden of preserving. We do not think a tort duty to preserve should be created simply by someone specifically requesting a third party to preserve something. Preservation may entail significant burdens." Id., 67 Cal. App. 4th at 638, 79 Cal. Rptr. 2d at 241. In this case for example, assuming the salvage value of the minivan to be $1,000, Metropolitan could have settled Smith's underinsured-motorist claim for $149,000 and the *434 wrecked minivan, instead of $150,000. Smith would have had his evidence, and Metropolitan would have received the salvage value of the vehicle. For the purpose of answering these certified questions, we assume that a duty of care was owed to Smith and that the duty was breached by the destruction of the minivan. However, absent the existence of such a duty, Smith would have no cause of action for spoliation. Not every piece of lost or destroyed evidence should lead to a cause of action for negligent spoliation. Where the destruction or loss of evidence defeats any chance of the plaintiffs recovering in the underlying action, we conclude that the plaintiff deserves recourse for such a loss. Therefore, under a claim for negligent spoliation, the defendant's breach must be the proximate cause of the plaintiffs inability to file, or to win, the underlying lawsuit. Other courts that have recognized spoliation within the context of traditional causes of action have required a plaintiff to show that the "defendant's loss or destruction of the evidence caused the plaintiff to be unable to prove an otherwise valid, underlying cause of action." Boyd v. Travelers Ins. Co., supra, 166 Ill. 2d at 197, 652 N.E.2d at 272, 209 Ill.Dec. at 731. In our opinion, the "otherwise valid" language places too heavy a burden on the plaintiff. Without the lost or destroyed evidence, the plaintiff cannot show that the underlying claim was valid. The Appellate Court of Illinois, in Petrik v. Monarch Printing Corp., 150 Ill.App.3d 248, 264, 501 N.E.2d 1312, 1322, 103 Ill.Dec. 774, 784 (1986), referring to this language, found that "[s]uch a showing would be nearly impossible because judges or juries cannot evaluate the value of evidence that they cannot see." Therefore, we conclude that, in order for a plaintiff to show proximate cause, the trier of fact must determine that the lost or destroyed evidence was so important to the plaintiffs claim in the underlying action that without that evidence the claim did not survive or would not have survived a motion for summary judgment under Rule 56, Ala. R. Civ. P. Metropolitan argues that a plaintiff, in order to be able to file an action alleging spoliation of evidence against a third party, must first file an action pursuing the underlying cause of action and be denied a recovery in that underlying action. We disagree. If we use the summary-judgment standard as a guide, there will be no need for a plaintiff to waste valuable judicial resources by filing a futile complaint and risking sanctions for filing frivolous litigation. The plaintiff can rely upon either a copy of a judgment against him in an underlying action or upon a showing that, without the lost or destroyed evidence, a summary judgment would have been entered for the defendant in the underlying action. For those cases hinging upon one particular piece of evidence, the loss of that evidence through the tortious acts of a third party adds an additional injury to an already-injured plaintiff by eliminating his opportunity to seek a remedy against the initial tortfeasor. Smith alleges that Chrysler defectively designed a product and that the defect in that product caused the death of his wife, but that because of Metropolitan's alleged actions, he will be unable to pursue any claims against Chrysler. The fact that Metropolitan is a third party should not deprive Smith of his day in court. Smith has not filed an action against Chrysler, apparently because Metropolitan allowed the destruction of the minivan that Smith contends was defective. In Alabama, a products-liability claim relating to a defective automobile is properly disposed of on a motion for summary judgment if the automobile in question is not available and the plaintiff has no other means of proving the alleged defect. See Capitol Chevrolet, Inc. v. Smedley, 614 So. 2d 439 (Ala.1993). "Proof of an accident and injury is not in itself sufficient to establish liability under the AEMLD; a *435 defect in the product must be affirmatively shown." Townsend v. General Motors Corp., 642 So. 2d 411, 415 (Ala.1994). Therefore, Smith must show that if he had filed an action against Chrysler, the spoliation of the minivan by Metropolitan would have been a proper ground for entering a summary judgment against him; such a showing would constitute a showing that the lost or destroyed evidence was "vital" to his claim and that its loss or destruction was actionable under the theory of negligent spoliation. Once a plaintiff has established that the third party had knowledge of the underlying action or potential action, that the third party assumed control over the evidence, and that the lost or destroyed evidence was "vital" to his claim in the underlying action or potential action, a rebuttable presumption arises in favor of the plaintiff. Our treatment here of the effect of spoliation is similar to the rationale set forth in a dissenting opinion in a case involving alleged spoliation by an adverse party in an action presenting a tort claim other than the spoliation, Alabama Power Co. v. Murray, 751 So. 2d 494, 504 (Ala.1999) (Lyons, J., dissenting): This burden-shift derives from the rationale set forth by the United States Court of Appeals for the Sixth Circuit in Welsh v. United States, 844 F.2d 1239, 1248 (6th Cir.1988). Although the burden-shift adopted by the court in Welsh involved spoliation by a party to the original tort rather than by a third party, its reasoning remains sound in this context: Id. at 1249 (citation omitted). The rebuttable presumption we adopt for use in third-party spoliation cases is "[a] presumption affecting the burden of proof by imposing upon the party against whom it operates the burden of proving the nonexistence of the presumed fact." Rule 301(b)(2), Ala. R. Evid.; see Charles W. Gamble, McElroy's Alabama Evidence § 451.05(a) (5th ed.1996). The presumed fact is that the plaintiff would have prevailed in the underlying action but for the loss or destruction of the evidence by the third-party spoliator. The third party can overcome the presumption by producing evidence showing that the plaintiff would not have prevailed in the underlying action even if the lost or destroyed evidence had been available. In this present case, if Smith establishes a prima facie case of negligent spoliation, it will be presumed that he would have prevailed in a products-liability action against Chrysler. If that presumption is in place, Metropolitan will have the burden of proving that Smith would not have prevailed on the merits of his products-liability action against Chrysler even if the minivan had not been destroyed. To illustrate further, assume that the plaintiff in a products-liability action alleges that the front wheel of an automobile separated from the vehicle during operation and that the separation caused a serious accident. Further assume that the garage to which the vehicle was towed was *436 given notice of a pending products-liability action against the manufacturer of the vehicle and voluntarily assumed responsibility for the vehicle, as well as for the separated wheel; and that before the vehicle could be inspected the garage, through inadvertence, sold the vehicle and the wheel for salvage, destroying all relevant evidence and making it certain that the products-liability claim could not survive a summary-judgment motion. In a negligent-spoliation action against the garage, the jury would be instructed to presume that the plaintiff would have prevailed on his products-liability claim against the manufacturer of the vehicle. However, if, for example, the garage produced an eyewitness who testified that the wheel did not separate from the vehicle until after the impact, or that the plaintiff had been driving recklessly before the accident and through his own recklessness had caused the accident, then that testimony would absolve the defendant garage from liability for its spoliation of the evidence if the jury determined that on his products-liability claim the plaintiff would not have prevailed even if the evidence had not been lost or destroyed. Just as the plaintiff in a negligent-spoliation action must prove the other three elements of a negligence action (duty, breach, and proximate cause), such a plaintiff also must prove damage. The appropriate measure of damages is difficult to determine in spoliation cases because, without the missing evidence, the likelihood of the plaintiffs prevailing on the merits cannot be precisely determined. "It would seem to be sheer guesswork, even presuming that the destroyed evidence went against the spoliator, to calculate what it would have contributed to the plaintiffs success on the merits of the underlying lawsuit." Petrik v. Monarch Printing Corp., supra, 150 Ill.App.3d 248, 260, 501 N.E.2d 1312, 1320, 103 Ill.Dec. 774, 782 (1987). However, courts have long recognized the need to remedy a wrong despite the fact that a proper award of damages is difficult to determine. Id., 150 Ill.App.3d at 261, 501 N.E.2d at 1321, 103 Ill.Dec. at 783, quoting Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264-65, 66 S. Ct. 574, 90 L. Ed. 652 (1946). "`The wrongdoer is not entitled to complain that [damages] cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise.'" Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S. Ct. 248, 75 L. Ed. 544 (1931), as quoted in American Life Ins. Co. v. Shell, 265 Ala. 306, 311, 90 So. 2d 719, 723 (1956). *437 American Life Ins. Co. v. Shell, 265 Ala. at 312, 90 So. 2d at 723 (again quoting Story Parchment Co. (quoting in turn other cases)). Id. If the lost or destroyed evidence is vital to a party's claim or defense and the evidence was lost or destroyed through no fault of the innocent party, the wrongdoer should bear the risk. The burden-shifting approach we adopt today puts us on a different footing from that of the states that have already adopted a remedy for negligent spoliation of evidence. The different options available for determining damages in a spoliation action were reviewed in Holmes v. Amerex Rent-A-Car, 710 A.2d 846, 853 (D.C.1998), where the court observed: Holmes, 710 A.2d at 853. Because the approach we adopt today to this cause of action is distinct from *438 the approaches adopted by other States, observations such as those made in Holmes fail to consider the additional protection provided to defendants through notice requirements and the element of a rebuttable presumption that would shift the burden of proof in a negligent-spoliation action. Thus, in Alabama, under the approach we adopt today, the risk of a windfall to the plaintiff has been minimized. We decline to gauge damages on the plaintiff's probability of success on the merits. We conclude that without the spoliated evidence, the plaintiff's probability of success is too tenuous a measure to be consistently applied and that any attempt to apply it would constitute pure speculation. Therefore, in determining damages, we reject the use of probability of success as a benchmark, in favor of the use of compensatory damages that would have been awarded on the underlying cause of action, if the defendant cannot overcome the rebuttable presumption. Any punitive damages that would have been rendered against the original tortfeasor in the underlying litigation should not be included in the plaintiff's recovery for negligent spoliation. It would be wholly unjust to punish a merely negligent party by imposing punitive damages for which the tortfeasor in the underlying claim would have been liable. "Punitive damages are not awarded because the injured party is entitled to them as a matter of right; they are awarded as a punishment to the wrongdoer and to deter him and others in the same or similar situation from such wrongdoing in the future." City Bank of Alabama v. Eskridge, 521 So. 2d 931, 933 (Ala.1988). However, if the spoliator is found to have acted willfully or wantonly in the destruction of the evidence, then punitive damages can be levied against the spoliator in an amount adequate to punish the spoliator for its misconduct and to deter others in similar situations. Jury charges that presume missing evidence weighs against the spoliator, and discovery sanctions, both of which are available when spoliation is charged against an opposing party, are not available to remedy the injustice caused by spoliation when the spoliator is a third party. However, "`[t]he most elementary conceptions of justice and public policy require [that] the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.'" Petrik, 150 Ill. App.3d at 261-62, 501 N.E.2d at 1321, 103 Ill.Dec. at 783, quoting Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 265, 66 S. Ct. 574, 90 L. Ed. 652 (1946). Thus, the risk associated with the loss or destruction of evidence entrusted to a third party must be borne by the third party. When a third party deprives another of his day in court, through tortious destruction of indispensable evidence, that third party commits a wrong; that wrong deserves a remedy, and the fact that damages will be difficult to determine should not preclude a recovery. Therefore, we hold that liability may be imposed on a third party liable for negligent spoliation of evidence, based upon general principles of Alabama law and under the procedures for establishing such liability that we have established in this opinion. QUESTIONS ANSWERED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, JOHNSTONE, and ENGLAND, JJ., concur. BROWN, J., concurs in the result. SEE, J., dissents. SEE, Justice (dissenting). The main opinion answers in the affirmative the certified question whether Alabama recognizes a cause of action for spoliation of evidence by a third party. It establishes as the elements of that cause of action, in addition to the elements of a negligence cause of action, a complicated *439 procedure for determining liability, involving a shifting rebuttable presumption and a "three-part test": "(1) that the defendant spoliator had actual knowledge of pending or potential litigation; (2) that a duty was imposed upon the defendant through a voluntary undertaking, an agreement, or a specific request; and (3) that the missing evidence was vital to the plaintiffs pending or potential cause of action." 771 So. 2d at 432. Thus, despite its statement to the contrary, the main opinion has, in effect, adopted a new and independent cause of action for spoliation of evidence, by establishing for that cause of action elements distinct from, and supplemental to, the elements of a negligence cause of action. I do not agree that this Court should recognize a new and independent tort of spoliation of evidence against third parties; therefore, I dissent. In Peek v. State Auto Mutual Insurance Co., 661 So. 2d 737, 738 (Ala.1995), this Court declined, under the particular facts of that case, to consider "whether [it] should recognize a spoliation of evidence cause of action against third parties who did not directly cause the destruction of [evidence]." In the related case of Christian v. Kenneth Chandler Constr. Co., 658 So. 2d 408, 413 (Ala.1995), this Court refused to recognize a separate tort of spoliation of evidence in a first-party situation, where the alleged spoliator was a party to the underlying action. In Christian, this Court stated that "[a]lthough a few jurisdictions have recognized a new independent tort based on spoliation of evidence, the majority of courts considering the issue have declined to adopt such a new cause of action." Id. (footnotes omitted). It appears that a small number of jurisdictions recognize an independent tort of spoliation of evidence in first-party situations or in third-party situations, or in both. See, e.g., Hazen v. Municipality of Anchorage, 718 P.2d 456 (Alaska 1986) (recognizing the tort of intentional spoliation of evidence by a party); Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C. 1998) (recognizing the tort of negligent or reckless spoliation of evidence by a third party); Bondu v. Gurvich, 473 So. 2d 1307 (Fla.Dist.Ct.App.1984) (recognizing the tort of negligent spoliation of evidence by a third party); Coleman v. Eddy Potash, Inc., 120 N.M. 645, 905 P.2d 185 (1995) (recognizing the tort of intentional spoliation of evidence by a third party and declining to recognize the independent tort of negligent spoliation of evidence); Smith v. Howard Johnson Co., 67 Ohio St.3d 28, 615 N.E.2d 1037 (1993) (recognizing a tort of spoliation of evidence by a party and against a third party); see also Eric Marshall Wilson, Recent Case, The Alabama Supreme Court Sidesteps a Definitive Ruling in Christian v. Kenneth Chandler Construction Co.: Should Alabama Adopt the Independent Tort of Spoliation?, Ala. L.Rev. 971, 977-80 (1996) (identifying 9 states that have recognized the independent tort of spoliation of evidence and 15 states that have rejected it). However, a larger number of jurisdictions do not recognize the tort. See, e.g., La Raia v. Superior Court, 150 Ariz. 118, 722 P.2d 286 (1986) (refusing to recognize the independent tort of intentional spoliation of evidence by a party); Wilson v. Beloit Corp., 921 F.2d 765, 767 (8th Cir.1990) (applying Arkansas law and holding that Arkansas does not recognize the tort); Temple Community Hosp. v. Superior Court, 20 Cal. 4th 464, 976 P.2d 223, 84 Cal. Rptr. 2d 852 (1999)(refusing to recognize the independent tort of intentional spoliation of evidence by a third party); Meyn v. State, 594 N.W.2d 31 (Iowa 1999)(refusing to recognize the independent tort of spoliation of evidence by a third party); Weigl v. Quincy Specialties Co., 158 Misc.2d 753, 601 N.Y.S.2d 774, 776 (Sup.Ct.1993) (stating that "the majority of jurisdictions refuse to recognize such a cause of action" (citations omitted) and that "[t]he Courts of New York follow the majority view and do not recognize spoliation of evidence as a cognizable tort action"); Trevino v. Ortega, 969 S.W.2d 950, 951 (Tex.1997) (declining to recognize the *440 tort of spoliation of evidence by a party and not addressing the issue whether to recognize the tort by a third party). The Supreme Court of New Mexico recently, in Torres v. El Paso Electric Co., 127 N.M. 729, 744, 987 P.2d 386, 401-02 (1999), surveyed jurisdictions on this issue: (Citations omitted.) Several years after a California District Court of Appeal, in Smith v. Superior Court, 151 Cal. App. 3d 491, 198 Cal. Rptr. 829 (1984), had become the first court to recognize the tort of intentional spoliation of evidence by a third party, the Supreme Court of California joined the majority of jurisdictions and held that California does not recognize the tort of spoliation of evidence either by a party or by a third party. See Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal. 4th 1, 954 P.2d 511, 74 Cal. Rptr. 2d 248 (1998); Temple Community Hosp. v. Superior Court, 20 Cal. 4th 464, 976 P.2d 223, 84 Cal. Rptr. 2d 852 (1999). In Temple Community Hospital, the Supreme Court of California, relying on its decision in Cedars-Sinai, summarized its rationale for not recognizing a tort of spoliation of evidence by a third party: 20 Cal. 4th at 477-78, 976 P.2d at 232-33, 84 Cal. Rptr. 2d at 861-62. I find the rationale of the Supreme Court of California in Temple Community Hospital persuasive, and, therefore, agree with the majority of jurisdictions that have refused to recognize the independent tort of spoliation of evidence by third parties. Accordingly, I would answer the certified question in the negative. [1] We simply respond to the district court's questions and leave for that court the issue whether Smith's complaint states a claim against the defendants. [2] Other states have held that their existing law provided ample remedies. See Wilson v. Beloit Corp., 921 F.2d 765 (8th Cir.1990) (applying Arkansas law); Edwards v. Louisville Ladder Co., 796 F. Supp. 966 (W.D.La.1992) (applying Louisiana law); La Raia v. Superior Court, 150 Ariz. 118, 722 P.2d 286 (1986); Gardner v. Blackston, 185 Ga.App. 754, 365 S.E.2d 545 (1988); Petrik v. Monarch Printing Corp., 150 Ill.App.3d 248, 103 Ill.Dec. 774, 501 N.E.2d 1312 (1986), appeal denied, 114 Ill. 2d 556, 108 Ill.Dec. 424, 508 N.E.2d 735 (1987); Murphy v. Target Products, 580 N.E.2d 687 (Ind.App.1991); Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 734 P.2d 1177 (1987); Miller v. Montgomery County, 64 Md.App. 202, 494 A.2d 761, cert. denied, 304 Md. 299, 498 A.2d 1185 (1985); Panich v. Iron Wood Products Corp., 179 Mich.App. 136, 445 N.W.2d 795 (1989); Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434 (Minn.1990); Baugher v. Gates Rubber Co., 863 S.W.2d 905 (Mo.App. 1993); Weigl v. Quincy Specialties Co., 158 Misc.2d 753, 601 N.Y.S.2d 774 (Sup.Ct.1993); Brewer v. Dowling, 862 S.W.2d 156 (Tex.App. 1993). [3] This Court has held that this principle applies to insurance companies and their agents. Palomar Ins. Corp. v. Guthrie, 583 So. 2d 1304, 1306 (Ala.1991) (involving a jury's finding that an insurance agent had assumed a duty to notify an insured of a policy's renewal and lapse dates). [4] See, e.g., Temple Community Hosp. v. Superior Court, 20 Cal. 4th 464, 476, 976 P.2d 223, 232, 84 Cal. Rptr. 2d 852, 861 (1999) ("We believe the broad threat of potential liability, including that for punitive damages, might well cause numerous persons and enterprises to undertake wasteful and unnecessary record and evidence retention practices.")

February 4, 2000

6e951782-5a92-4b1f-b20c-7151b3dde072

Ex Parte Dorough

773 So. 2d 1001

1980369

Alabama

Alabama Supreme Court

773 So. 2d 1001 (2000) Ex parte Karl James DOROUGH. (Re Karl James Dorough v. State of Alabama). 1980369. Supreme Court of Alabama. January 21, 2000. *1002 Paul A. Avron, Birmingham, for petitioner. Bill Pryor, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for respondent. SEE, Justice. This is a civil-forfeiture case. The Court of Civil Appeals, on August 28, 1998, affirmed the order of forfeiture, without an opinion. Dorough v. State, (No. 2970379), 757 So. 2d 489 (Ala.Civ.App.1998) (table). We granted Karl James Dorough's petition for the writ of certiorari, in light of this Court's holding in Kelley v. State, 766 So. 2d 837 (Ala.1999), to determine whether the forfeiture of Dorough's 1991 Mazda Navajo truck, pursuant to Ala.Code 1975, § 20-2-93(a)(5), "is grossly disproportionate to the gravity of his [alleged] offense," id., and, therefore, violates the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. Because the trial court made no findings as to the value of Dorough's truck, the amount of controlled substance seized from the truck, or the criminal charge, if any, made against Dorough, this Court cannot determine whether the forfeiture of Dorough's truck is excessive. Accordingly, we remand this case for the Court of Civil Appeals to order further proceedings consistent with this opinion. The following facts are undisputed.[1] In March 1997, two City of Birmingham police officers observed Dorough snorting a white powdery substance as he was sitting in the driver's seat of his 1991 Mazda Navajo truck. The officers also saw a plastic bag lying on the console of the truck; the bag contained a white powder, which the officers believed to be cocaine. The officers arrested Dorough and seized the white powder. It was later confirmed that the white powder was cocaine.[2] Pursuant to Ala.Code 1975, § 20-2-93(a)(5), the State filed a petition seeking the condemnation of Dorough's truck. After holding a hearing, the trial court entered an order declaring Dorough's truck to be contraband and condemning and forfeiting it to the State. Dorough argues that the mere possession of a controlled substance is an insufficient basis for a civil forfeiture under Ala. Code 1975, § 20-2-93(a)(5). In support of this argument, Dorough relies on Weldon v. State, 718 So. 2d 52 (Ala.Civ.App.1997), cert. denied, 718 So. 2d 54 (Ala.1998); Gilbert v. State, 686 So. 2d 266 (Ala.Civ.App.), cert. denied, 686 So. 2d 267 (Ala.1996); and Dent v. State, 714 So. 2d 985 (Ala.Civ.App. 1997), cert. denied, 714 So. 2d 988 (Ala. 1998). Dorough also argues, in the alternative, that if this Court should hold that the mere possession of a controlled substance is a sufficient basis for a civil forfeiture, then this Court must remand this case for proceedings in the trial court; he says that at those proceedings the trial court should determine the value of his truck and determine whether the forfeiture of the truck is excessive. Ala.Code 1975, § 20-2-93(a), provides in pertinent part: *1003 (Emphasis added.) In Ex parte Pfizer, Inc., 746 So. 2d 960 (Ala.1999), this Court stated: Id. at 964 (citations omitted). There is no ambiguity in the word "possession." Section 20-2-93(a)(5) clearly provides that a vehicle that has been used, or that is intended to be used, "in any manner" to facilitate the "possession" of a controlled substance is subject to forfeiture. Accordingly, we must enforce the plain language of § 20-2-93(a)(5), which authorizes the civil forfeiture of a vehicle. We do not read Weldon, Gilbert, and Dent as standing for the proposition that criminal conduct involving more than mere possession of a controlled substance is required in order for there to be a forfeiture under § 20-2-93. In Weldon, the Court of Civil Appeals held that the forfeiture of the claimant's 1993 BMW automobile, which was valued at $37,500 and on which the driver had paid about $12,000 to $13,000, for possession of .067 ounce (about a teaspoon) of marijuana constituted an excessive fine and thus violated Excessive Fines Clause of the Eighth Amendment of the United States Constitution.[3] See 718 So. 2d at 53. In Dent, the Court of Civil Appeals held that the forfeiture of the claimant's 1993 Chrysler van, which was valued at $18,000, for possession of 5.32 grams of marijuana (about 1/6 of an ounce) constituted an excessive fine and thus violated the Excessive Fines Clause of the Eighth Amendment. See 714 So. 2d at 987. In Gilbert, the Court of Civil Appeals upheld the forfeiture of the claimant's 1987 Chevrolet S-10 truck, which had been used to transport marijuana for the claimant's personal use and possession. See 686 So. 2d at 267. The Court of Civil Appeals held that the fact that the truck had been used to transport marijuana for the claimant's personal use and possession was sufficient to support a forfeiture under § 20-2-93.[4]Gilbert, 686 So. 2d at 267. Thus, neither Weldon, Gilbert, nor Dent holds that mere possession of a controlled substance is not a sufficient basis for forfeiture under § 20-2-93. It is undisputed that Dorough possessed a controlled substance in his truck. Thus, Dorough's truck was used in some manner to facilitate that possession. Therefore, we hold that Dorough's mere possession of a controlled substance in his truck is a sufficient basis for the civil forfeiture of the truck under § 20-2-93(a)(5). The Supreme Court of the United States has held that the Excessive Fines Clause of the Eighth Amendment applies to civil in rem forfeiture actions.[5] See Austin v. United States, 509 U.S. 602, 604, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993) (holding that the Excessive Fines Clause applies to forfeitures of property under 21 U.S.C. § 881(a)(4) and (a)(7)). In Austin, the Supreme Court held that the Excessive Fines Clause applies to the federal forfeiture statutes because "of the historical understanding of forfeiture as punishment, the clear focus of §§ 881(a)(4) and (a)(7) on the culpability of the owner, and the evidence that Congress understood those provisions as serving to deter and to punish." Austin, 509 U.S. at 621-22, 113 S. Ct. 2801. The Supreme Court stated that the relevant question is not whether a forfeiture is nominally civil or criminal, but whether it is punishment. See id. at 610, 113 S. Ct. 2801. However, the Supreme Court declined in Austin to establish a standard for determining whether a forfeiture constitutes an excessive fine for purposes of the Eighth Amendment. See 509 U.S. at 622-23, 113 S. Ct. 2801-2813. In United States v. Bajakajian, 524 U.S. 321, 118 S. Ct. 2028, 141 L. Ed. 2d 314 (1998), the Supreme Court established a standard for determining whether a forfeiture constitutes an excessive fine for purposes of the Eighth Amendment. The Supreme Court held that "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." 524 U.S. at 334, 118 S. Ct. at 2036. The Supreme Court explained: 524 U.S. at 336-37, 118 S. Ct. 2028. The Supreme Court stated that, in determining excessiveness, (1) "judgments about the appropriate punishment for an offense belong in the first instance to the legislature," and (2) "any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise." 524 U.S. at 336, 118 S. Ct. 2028. This Court recently applied the Bajakajian standard in Kelley v. State, supra. In Kelley, this Court held that the forfeiture of the claimant's 1997 Pontiac Grand Prix automobile (valued at approximately $30,000) was excessive under the Bajakajian standard. Four tablets of the controlled substance aminorex and 6.2 grams of marijuana had been found in the automobile. The claimant was arrested and was subsequently convicted of possession of a controlled substance, a violation of Ala.Code 1975, § 13A-12-212(a)(1), and a Class C felony. A class C felony carries a maximum fine of $5,000. This Court, applying the Bajakajian standard, stated: "Comparing the legislature's assessment of the gravity of Kelley's crime with the $30,000 forfeiture the state seeksa forfeiture in an amount six times the maximum fine the legislature has allowed the courts to impose in such a casewe conclude that such a forfeiture would be grossly disproportional to the gravity of his offense." Kelley, 766 So. 2d at 339-40. The trial court did not address whether the forfeiture of Dorough's truck was grossly disproportional to the gravity of his alleged offense. However, we cannot undertake the proportionality analysis established in Bajakajian and followed by this Court in Kelley, because the record here is insufficient for us to do so. No evidence in the record indicates the value of Dorough's truck, the amount of cocaine seized from the truck, or the criminal charge, if any, made against Dorough. *1005 Dorough and the State agree that a remand is necessary so that the trial court can determine, as a fact, the value of Dorough's truck. Accordingly, we remand this case for the Court of Civil Appeals to order further proceedings consistent with this opinion. After the trial court has conducted those proceedings, it shall make an appropriate and timely return to the Court of Civil Appeals, which shall in turn make an appropriate and timely return to this Court. REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and HOUSTON, COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. MADDOX, J., concurs in the result. MADDOX, Justice (concurring in the result). Because the majority only remands at this time, I concur in the result. I would point out, however, that I dissented in Ex parte Kelley, 766 So. 2d 837 (Ala.1999). See my special writing in that case for an explanation of my understanding of the law applicable to this case. [1] The parties stipulated to the facts. (R. at 24-25.) [2] The record does not indicate whether Dorough was ever indicted or prosecuted. [3] In holding that the forfeiture was excessive, the Court of Civil Appeals in Weldon applied the proportionality test adopted by the United States Court of Appeals for the Eleventh Circuit in United States v. One Parcel Property Located at 427 and 429 Hall Street, Montgomery, Montgomery County, Alabama, 74 F.3d 1165 (11th Cir.1996), and which the Court of Civil Appeals had previously adopted in Dent. See 718 So. 2d at 53. In Dent, the Court of Civil Appeals rejected the instrumentality test as the means for determining whether a for-feiture constitutes an excessive fine and applied the proportionality test. See 714 So. 2d at 986-87. [4] This Court denied the claimant's petition for the writ of certiorari, but in denying the writ we stated that "we do not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion." Ex parte Gilbert, 686 So. 2d 267, 268 (Ala.1996). [5] The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

January 21, 2000

3c84597f-e047-42f9-b450-611ac3ab6ada

At Stephens Enterprises, Inc. v. Johns

757 So. 2d 416

1980269

Alabama

Alabama Supreme Court

757 So. 2d 416 (2000) A.T. STEPHENS ENTERPRISES, INC. v. Arnold JOHNS et al. 1980269. Supreme Court of Alabama. January 21, 2000. *417 Charles Cleveland of Cleveland & Cleveland, P.C., Birmingham, for appellant. Edwin O. Rogers of Hand Arendall, L.L.C., Birmingham, for appellees. PER CURIAM. A.T. Stephens Enterprises, Inc., filed this action against Scott Transportation, Inc.; Austin Transportation, Inc.; Best Leasing, Inc.; Best Systems, Inc.; Transport Credit Inc.; Transportation Holding Company, Inc.; Transway Systems, Inc.; Arnold E. Johns; Roger Manis; Don Clay; and Doug Ford. All of the individual defendants were associated with Scott Transportation ("Scott"). The plaintiff sought damages based on allegations of breach of contract and conspiracy to steal, convert, or dissipate all of the assets of Scott and to defraud its creditors. After a trial, the jury returned a verdict for the plaintiff and against Scott on the breach-of-contract claim and assessed damages at $45,386.81. That award is not before us. The jury also found for the plaintiff and against Scott, Best Systems, Inc., and Arnold Johns on the conspiracy-to-defraud claim and assessed compensatory damages of $162,000 and punitive damages of $150,000. The jury found no liability for the remaining defendants. The trial court entered a judgment on that verdict; however, it then granted the motion for a judgment as a matter of law filed by Scott, Best Systems, Inc., and Johns (hereinafter the "defendants") on the conspiracy-to-defraud claim. The plaintiff Stephens appeals. We reverse and remand. Arnold Johns owns Best Systems ("Best"). Best owns Scott, which Johns also incorporated. On August 10, 1994, the plaintiff leased 17 trucks to Scott and assigned drivers for those trucks. The lease payments were to be based on the number of miles each truck was driven. Scott gave the plaintiff weekly settlement statements showing the amounts due for mileage and taking credit *418 for payments made by Scott to the plaintiff. On September 19, 1994, Scott entered into an agency agreement with Sun Line Express ("Sun Line"), so that Sun Line handled the day-to-day management of Scott. On September 22, 1994, Scott agreed to make payments directly to the plaintiff's secured creditors rather than to the plaintiff. Scott would write a check to Sun Line, which would then write checks to the plaintiff's creditors. The checks written by Sun Line were not honored by the drawee bank. Any checks from Scott to the plaintiff went through an intermediary, Employer's Contract Services ("Employer's"). On October 8, 1994, Scott sent to the plaintiff a statement claiming that it had paid $15,826.19 to Employer's, but Employer's refused to send the money to the plaintiff because Scott's check was not honored by the drawee bank. In addition, Scott represented to the plaintiff that it had escrowed insurance premiums of $455 a week. However, these funds were not escrowed. The plaintiff, because of these representations by Scott, continued to allow Scott to use its trucks and drivers. Eventually, the absence of payments became evident and the plaintiff sued. The jury returned a verdict for the plaintiff, awarding $45,386 for breach of contract, $162,000 for conspiracy to defraud, and $150,000 in punitive damages. The court entered a judgment on that verdict; however, the court then granted the defendants' Rule 50(b), Ala. R. Civ. P., motion and set aside the judgment for the $162,000 and the $150,000. Thus, the court left in place a judgment for only $45,386 (the contract award). The trial court explained this ruling by stating that it had discovered errors in the record, including an improper charge to the jury concerning conspiracy to commit fraud, which required that it grant the defendants' Rule 50(b) motion. This appeal presents three issues: (1) Did the plaintiff waive the right to challenge the trial court's postjudgment order by failing to identify in its notice of appeal the specific parts of the order it was complaining of? (2) Did the trial court err in granting the Rule 50(b) motion for a judgment as a matter of law? and (3) Did the defendants properly preserve for appellate review the denial of their motion for a new trial under Rule 59(a) and the denial of their Rule 59(e) motion? The defendants contend that the plaintiff waived its right to challenge portions of the trial court's postjudgment order because its notice of appeal stated only that it was appealing the final order "granting the defendants a judgment as a matter of law." It did not refer to Rule 59(a) or Rule 59(e). The defendants cite a number of cases in support of this contention; however, none of these cases states that an issue is waived on appeal if the appellant does not mention it in the notice of appeal, but rather that assignments of error that are not argued in the appellant's brief are waived. Wilkinson v. Duncan, 294 Ala. 509, 319 So. 2d 253, 254 (1975); Lowery v. Stinson, 291 Ala. 415, 417, 282 So. 2d 244, 246 (1973); Britton v. Doehring, 286 Ala. 498, 504, 242 So. 2d 666, 671 (1970); Brittain v. Ingram, 282 Ala. 158, 162, 209 So. 2d 653, 656 (1968); Newton v. Town of Columbia, 695 So. 2d 1213, 1216 (Ala.Civ.App.1997); see also Pardue v. Potter, 632 So. 2d 470, 473 (Ala.1994); Deutcsh v. Birmingham Post Co., 603 So. 2d 910 (Ala.1992); Bogle v. Scheer, 512 So. 2d 1336 (Ala.1987). The plaintiff argues in its brief all of the aspects encompassed in the trial court's postjudgment order; therefore, it has not waived any right to a review of those issues. See Rule 3(c), Ala. R.App. P. The second issue relates to the trial court's postjudgment order. The defendants, in their postjudgment motion entitled "Motion to Set Aside Jury Verdict, Motion for a Judgment as a Matter of Law or, Alternatively, Motion for a New Trial and Other Matters," asked for a judgment *419 as a matter of law (Rule 50(b)); asked the court to alter, amend, or vacate the judgment (Rule 59(e)); asked for a remittitur; asked for a hearing on the question of excessiveness of the punitive-damages award, pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986); and asked for a new trial (Rule 59(a)). The trial court granted the Rule 50(b) request for a judgment as a matter of law. In reviewing a ruling on a motion for a judgment as a matter of law, this Court is bound by the same standard as the trial court: Continental Eagle Corp. v. Mokrzycki, 611 So. 2d 313, 319 (Ala.1992). Rule 50(b) reads: "Whenever a motion for a judgment as a matter of law made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion." (Emphasis added.) Implicit in this rule is the requirement that the party moving under Rule 50(b) for a judgment as a matter of law has already made a Rule 50(a) motion for a judgment as a matter of law at the conclusion of all the evidence. 1 Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated, § 50.2, p. 840 (3d ed.1996); German Auto, Inc. v. Tamburello, 565 So. 2d 238, 240 (Ala.1990); Denton v. Foley Athletic Club, 578 So. 2d 1314 (Ala.Civ.App.1990). However, this Court has restricted this requirement to issues involving sufficiency of the evidence: Barnes v. Dale, 530 So. 2d 770, 776-77 (Ala. 1988). Therefore, issues relating to the sufficiency of the evidence require a motion at the conclusion of all the evidence, but issues relating to pure questions of law do not. The defendants filed a Rule 50(a) motion for a judgment as a matter of law at the close of the plaintiff's case, but they did not file such a motion at the close of all the evidence. They raised five grounds in their Rule 50(a) motion. The trial court did not specifically indicate which of those grounds it based its order on. Therefore, we look to all of them. In order to comply with Rule 50, we must first divide these issues into two groups: those dealing with questions of sufficiency of the evidence and those dealing with questions of law. The defendants raise three issues that concern the sufficiency of the evidence. They contend that the evidence is insufficient to support (1) a verdict for the plaintiff, (2) the award of compensatory damages, and (3) the award of punitive damages. Because the defendants made no Rule 50(a) motion at the conclusion of the evidence, the defendants waived their right to raise these issues in their Rule 50(b) motion. The first issue dealing with a question of law is whether Alabama recognizes a cause of action for conspiracy to defraud a creditor. This Court has stated that a civil conspiracy is a combination of *420 two or more persons acting to accomplish an unlawful end or to accomplish a lawful end by unlawful means. Nelson v. University of Alabama System, 594 So. 2d 632, 634 (Ala.1992); Barber v. Stephenson, 260 Ala. 151, 69 So. 2d 251 (1953); Eidson v. Olin Corp., 527 So. 2d 1283, 1285 (Ala. 1988). Furthermore, this Court has a number of times discussed the claim of conspiracy to defraud. See McLemore v. Ford Motor Co., 628 So. 2d 548 (Ala.1993); Lucas v. Hodges, 589 So. 2d 154 (Ala.1991); Allied Supply Co. v. Brown, 585 So. 2d 33 (Ala.1991). Nothing in the statutes or caselaw this Court has been shown would prohibit a creditor of one of the conspirators from bringing an action based upon this cause of action. The defendants' other ground for a judgment as a matter of law is their contention that A.T. Stephens, who runs A.T. Stephens, Inc., filed a personal bankruptcy petition that did not list these claims against the defendants. Therefore, they say, he is barred from collecting on them now. Stephens did file for Chapter 7 relief, but the plaintiff, A.T. Stephens Enterprises, Inc., filed only for a Chapter 11 reorganization. The defendants' argument is based on the Chapter 7 filing by Stephens as an individual. The fact that Stephens disclosed A.T. Stephens Enterprises, Inc., as a trade name in the proper place on the Chapter 7 petition, as required by the Chapter 7 form, does not mean that the plaintiff corporation, as well as Stephens individually, filed for Chapter 7 relief. The plaintiff did appear to be a codebtor on three loans involved in the Chapter 7 bankruptcy proceeding, but the defendants have failed to prove that any of the discharges received under the Chapter 7 bankruptcy proceeding were received by the plaintiff or by anyone other than Stephens the individual. Therefore, no bar to the plaintiff's recovery arises as a result of Stephens's individual bankruptcy proceedings, because the bankruptcy court hearing the Chapter 7 petition had no power to release the plaintiff A.T. Stephens Enterprises, Inc., from its debts. See Chitwood v. Carlsen, 346 So. 2d 1149, 1151-52 (Ala. 1977). All of the remaining grounds set out by the defendants in their motion would be grounds supporting a request for a new trial, not a request for a judgment as a matter of law. Therefore, because all of the defendants' grounds offered in support of the judgment as a matter of law are insufficient to support that judgment, we reverse the judgment as a matter of law issued under Rule 50(b). The next motion is a Rule 59(a) motion for a new trial. Rule 50(c)(1), Ala. R. Civ. P., states: This Court has interpreted that rule to require a mandatory ruling by the trial court on a motion for a new trial that is filed with a Rule 50(b) motion for a judgment as a matter of law. Ex parte Handley, 494 So. 2d 24 (Ala.1986). Furthermore, the failure of the trial court to rule on such a motion is clear error. Id. at 24; White v. Packer, 345 So. 2d 312 (Ala. Civ.App.1977); cf. Gordon Mailloux Enters., Inc. v. Firemen's Ins. Co., 366 F.2d 740 (9th Cir.1966). *421 The trial court clearly erred in not simultaneously ruling on the motion for a judgment as a matter of law and the motion for a new trial. Usually, this error would require that the movant point out that error to the trial court and/or to the appellate court, and the failure to do so would constitute a waiver of the motion for a new trial. Lyons, Alabama Rules of Civil Procedure, supra, § 50.7, p. 845; Handley, 494 So. 2d at 24. Alabama caselaw also provides for an exception to the rule stated above, an exception that allows an appellate court on its own motion to remand the action for the trial court to rule on the motion for a new trial if the movant has argued the merits of the motion at trial and on appeal. Luker v. City of Brantley, 520 So. 2d 517, 522-23 (Ala. 1987). The defendants argued their grounds for a new trial both before the trial court and here; therefore, while we reverse the order granting the defendants' motion for a judgment as a matter of law, we remand this action for a ruling on the Rule 59 motion for a new trial. REVERSED AND REMANDED. MADDOX, HOUSTON, SEE, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. BROWN, J., concurs in the result.

January 21, 2000

92a0d144-50fe-4e4e-adba-2c35fbcb83d8

Ex Parte Watson

757 So. 2d 1107

1990174

Alabama

Alabama Supreme Court

757 So. 2d 1107 (2000) Ex parte Rex Edward WATSON. (Re State of Alabama v. Rex Edward Watson). 1990174. Supreme Court of Alabama. January 28, 2000.[*] *1108 Thomas M. Goggans, Montgomery; Thomas M. Hass, Mobile, for petitioner. Brad E. Mendheim, asst. district atty., Dothan; Bill Pryor, atty. gen., and J. Thomas Leverette, asst. atty. gen., for respondent. JOHNSTONE, Justice. The petitioner, Rex Edward Watson, is the defendant in a criminal case. He petitions us for a writ of mandamus or, in the alternative, a writ of habeas corpus to effect his release from the county jail during the pendency of his appeal from his conviction. We determine that he is due a writ of mandamus under the circumstances. After a jury trial, the defendant was convicted of theft of property in the first degree. The trial court sentenced the defendant to eight years' imprisonment in the state penitentiary and payment of a fine of $1,000; a victim's compensation assessment of $250; court costs; and restitution in the sum of $71,985. The trial court split the imprisonment, ordered the defendant to serve weekends for the ensuing three months in the county jail, and suspended the balance of the term of imprisonment for a period of five years of formal probation on the condition, inter alia, that the defendant pay the moneys required by his sentence on a prescribed schedule. Thereafter, the defendant timely filed notice of appeal, and the trial judge set the appeal bond in the sum of $100,000. The defendant made a good corporate surety appeal bond for the $100,000 and filed it with the circuit clerk, who approved it and duly caused the sheriff to release the defendant from custody during the pendency of his appeal. Ten days later, the district attorney filed a motion asking the trial court to reconsider the defendant's appeal bond and "to set the defendant's appeal bond at $71,985.00 cash" in order to secure the defendant's payment of the restitution to the victim of the theft. The trial judge conducted a hearing on the motion and, over the defendant's articulate and thorough arguments and objections (through defense counsel), granted the motion and required the defendant to post, in addition to his existing $100,000 corporate surety appeal bond, a $30,000 cash bond and remanded the defendant to the custody of the sheriff until such time as the defendant would make the additional $30,000 cash bond. Later that same day, the defendant filed a motion to reconsider with the trial court; and, four days later, he filed a "Motion to Set Aside Order Requiring Supersedeas Bond/Petition for Writ of Habeas Corpus" with the Court of Criminal Appeals, which *1109 denied relief. On the day after the Court of Criminal Appeals denied relief, the defendant filed the instant "Petition for Writ of Mandamus or Petition for Writ of Habeas Corpus" with this Court. The remaining operative facts in this case consist of the contents of the defendant's original notice of appeal itself, the grounds and reasons advanced by the district attorney to persuade the trial judge to reconsider and to revise the original appeal-bond requirements, and the grounds and reasons stated by the trial judge in imposing the additional requirement of a $30,000 cash appeal bond. The defendant's notice of appeal itself reads, in pertinent part, as follows: (Emphasis added.) The trial judge's original order setting the defendant's original appeal bond at $100,000 operated to grant the defendant's request that the trial court, "pursuant to Rule 8(d), ... enter a Stay of Execution of the sentence and payment of any ordered fines, costs, and restitution, pending the appeal" and "set an appeal bond that is appropriate under the premises." As this opinion will explain, the trial court could have, and still can, discriminatingly tailor its stay and its appeal-bond requirements to do justice for the State, the victim, and the defendant. The "Motion to Reconsider Bond" filed by the district attorney with the trial court reads, in pertinent part, as follows: At the hearing conducted by the trial court on the district attorney's Motion to Reconsider Bond, the district attorney summarized his position as follows: The State has not contended and does not contend that the defendant waived his right of appeal. In fact, at the hearing before the trial court, the district attorney, in the words quoted above and those quoted below, expressly recognized the defendant's right to appeal: In ruling, the trial court stated its position: The law governing appeal bonds in criminal cases and stays of criminal sentences is stated in Rule 7.2(c), Ala. R.Crim. P., and Rule 8(d), Ala. R.App. P. Although Rule 9(b), Ala. R.App. P., states that "[r]elease after judgment of conviction shall be governed by [Ala.Code 1940 (Recomp.1958),] Title 15, §§ 368 and 372 [Ala. Code 1975, § 12-22-170],"[1] the Code Commissioner's note to that Code section and the committee comments to Rule 7.2, Ala. R.Crim. P., say that Rule 7.2 modifies the absolute right to an appeal bond granted by § 12-22-170 to a defendant sentenced to 20 years or less of imprisonment. In accord with this view, the defendant-petitioner relies on Rule 7.2, Ala. R.Crim. P., and Rule 8(d), Ala. R.App. P., rather than on § 12-22-170. Subsections (c) and (d) of Rule 7.2, Ala. R.Crim. P., provide: (Emphasis added). Rule 8(d), Ala. R.App. P., regarding stays of execution of sentences in criminal cases, provides in pertinent part: We will address two housekeeping points before we resolve the crucial issues. First, the defendant-petitioner complains that, since the trial judge imposed the additional bond requirement and remanded the defendant-petitioner to the custody of the sheriff, the defendant-petitioner has served far longer in the county jail than the three months' worth of weekends ordered by the trial court in its split sentence. His serving this jail time, however, does not entitle him to the release contemplated by the probationary portion of his split sentence inasmuch as his filing his notice of appeal operated to stay that portion of the sentencing order placing the defendant on probation. Rule 8(d)(4), Ala. R.App. P., supra. The second housekeeping point is that, while Rule 8(d)(2), Ala. R.App. P., supra, provides that a convicted defendant's election not to commence the service of his sentence stays a "sentence of imprisonment or hard labor for the county or to the penitentiary," the defendant's having made this election in his notice of appeal does not entitle him to a release from incarceration. Rather, this election and the consequent stay simply prevent his being put to hard labor or sent to the penitentiary during the pendency of his appeal and may prevent his receiving credit for time served on account of this particular jail time. See Gamble v. Alabama, 509 F.2d 95 (5th Cir.), cert. denied, 423 U.S. 924, 96 S. Ct. 267, 46 L. Ed. 2d 250 (1975). We will now resolve the crucial issues. They are twofold and distinct. First, the law afforded the trial court options for promoting the collection of the restitution not presented by the State either to the trial court or to this Court. The general rule in Alabama is that a circuit court money judgment remains in full force and effect unless and until it is stayed. Rule 8, Ala. R.App. P. A restitution order is a money judgment, just as an order to pay a fine and costs is a money judgment. A restitution order may be secured and collected with all of the powers available under the law for securing and collecting civil judgments, see Rules 64 and 69, Ala. R. Civ. P., albeit without some of the constraints, such as the debtor's exemptions from civil judgments. See § 15-18-78, Ala.Code 1975; Moore v. State, 706 So. 2d 265 (Ala.Crim. App.1996); and Rice v. State, 491 So. 2d 1049 (Ala.Crim.App.1986). The provisions for staying sentence requirements for the payment of money, Rule 8(d)(3), Ala. R.App. P., are distinct from the provisions for staying imprisonment required by sentence, Rule 8(d)(2). Independently of whether the trial judge stays or does not stay the imprisonment imposed by a sentence, the trial judge can refuse a stay of the money-payment requirements of a sentence or can grant a stay of the money-payment requirements on the conditions stated in Rule 8(d)(3), Ala. R.App. P. The defendant-petitioner's argument that Rule 8(d)(3) does not provide for staying restitution ordered by a sentence would, if correct, mean that all restitution orders, once entered, would remain in full force and effect, immediately collectable, unless and until reversed on appeal. Thus, for the sake of fairness to criminal defendants in general, the defendant-petitioner would do well to concede that Rule 8(d)(3) allows the trial court to stay the restitution requirements of a sentence even though the text of the rule does not specifically identify restitution. Even so, the trial judge, in admitting a convicted defendant to bail and releasing him from incarceration pursuant to Rule 8(d)(2), Ala. *1113 R.App. P., and Rule 7.2(c), Ala. R.Crim. P., need not also stay the money-payment requirements of the sentence unless the trial judge be satisfied according to Rule 8(d)(3) but may, rather, leave the money-payment requirements of the sentence in full force and effect to be secured or collected, like any money judgment, by the district attorney, the victim, or both, according to their respective interests. Moreover, even without staying the money-payment requirements of a sentence, the trial judge can condition the defendant's bail and release on his not dissipating specified assets. Second, under the circumstances of this case, and in the context of the trial judge's ample power to protect and to enforce the restitution requirements of his sentence as already explained, the trial judge could not legally require the defendant to post the additional bond or remand the defendant to the sheriff's custody pending the posting of the additional bond. Rule 7.2(d), Ala. R.Crim. P., supra, authorizes the trial court to deny release after conviction and sentence only if the defendant poses a risk of flight, poses a real and present danger of harm to others, or has made an election to waive release and to begin serving his sentence. In originally admitting the defendant to bail in the sum of $100,000, the trial judge implicitly found that sum sufficient to assure the defendant's return to court in the event of the dismissal of his appeal or the affirmance of his conviction and likewise implicitly found the defendant not to pose a flight risk or a real and present danger to others. No one contends that the defendant made an election to waive release and to begin serving his sentence. Thus, having originally admitted the defendant to bail and released him from custody, the trial court could not remand the defendant to custody without some finding that he posed a risk of flight or a real and present danger of harm to others. Yet, the district attorney's Motion to Reconsider Bond, the district attorney's statement of his position at the hearing on the Motion to Reconsider Bond, and the trial judge's statement of his own position are all utterly devoid of even a suggestion that the defendant posed a risk of flight or a real and present danger to others. The reasons stated by the district attorney and the trial judge were, first, their dismay that the defendant had filed an appeal and, second, their concern that the victim might not receive her restitution. The district attorney also cited his opinion that the defendant had no legitimate ground of appeal. None of these factors justifies the trial judge's remanding the defendant to custody. The provisions of Rule 8(d)(3), Ala. R.App. P., for securing the payment of moneys required by a sentence authorize the trial court to impose conditions for a stay of the money-payment aspects of the sentence, not conditions for a stay of the imprisonment. The criteria for mandamus are (a) a clear legal right to the order sought, (b) an imperative duty on the respondent (the trial judge in this case) to act and a refusal so to act, and (c) the lack of another adequate remedy. Ex parte State ex rel. McKinney, 575 So. 2d 1024 (Ala.1990). As explained, the defendant-petitioner had a clear legal right to an order denying the district attorney's Motion to Reconsider Bond insofar as the motion sought to return the defendant to custody; and, with no showing whatsoever that the defendant posed a risk of flight or a real and present danger to others, the trial judge had an imperative duty to deny the motion insofar as it sought to return the defendant to custody. The trial judge refused the defendant's thorough and articulate entreaties to deny the motion in that regard, and the defendant now has no adequate remedy other than a writ of mandamus from us requiring the trial judge to revise his order. Accordingly, we will grant a writ of mandamus directing the trial judge to amend his order on the district attorney's Motion to Reconsider Bond so as to stay *1114 the imprisonment imposed by the sentence and so as to effect the defendant's release from custody on the $100,000 corporate surety appeal bond he originally posted, and directing the trial judge to reconsider whether or not to stay the sentence requirements for the payment of money in accordance with Rule 8(d)(3), Ala. R.App. P., but not to condition the stay of the defendant's imprisonment or the release of the defendant from custody during the pendency of his appeal on the defendant's paying or securing the moneys ordered by the sentence. The trial judge is authorized to condition the stay of the defendant's imprisonment and his release from custody on his refraining from dissipating specified assets. WRIT GRANTED. MADDOX, HOUSTON, COOK, LYONS, and ENGLAND, JJ., concur. SEE and BROWN, JJ., concur in the result. SEE, Justice (concurring in the result). I disagree with the majority's reliance on Rule 7.2, Ala. R.Crim. P., to reach its conclusion that the trial court erred in conditioning Rex Watson's release during the pendency of his appeal upon his posting of the additional bond. Nevertheless, I believe the majority reaches the correct result. I, therefore, concur in the result. The trial court's authority to release a convicted defendant during the pendency of his appeal is found in Rule 7.2(c)(2), Ala. R.Crim. P., which provides: (Emphasis added.) This grant of authority is qualified by Rule 7.2(d), which provides: (Emphasis added.) In basing its analysis on Rule 7.2, the majority states: 757 So. 2d at 1113. However, the Committee Comments to Rule 7.2 (specifically, the "Committee Comments to Amendment to Rule 7.2 effective April 1, 1995") state: (Emphasis added.) Thus, Rule 7.2(d) does not, as the majority's statement suggests, require the trial court to release a convicted defendant during the pendency of his appeal unless he "poses a risk of flight, poses a real and present danger of harm to others, or has made an election to waive release and to begin serving his sentence." 757 So. 2d at 1113. Rather, Rule 7.2(d) provides the trial court the discretion to release *1115 a convicted defendant unless that defendant, as the majority phrases it, So.2d at , "poses a risk of flight, poses a real and present danger of harm to others, or has made an election to waive release and to begin serving his sentence." Nonetheless, the majority's judgment is correct. Rule 7.3, Ala. R.Crim. P., reads: (Emphasis added.) Rule 7.3, read in conjunction with Rule 7.2, provides that once the trial court, in its discretion, determines that a convicted defendant should be released during the pendency of his appeal, the trial court is required to impose those restrictions listed in Rule 7.3(a) and is authorized under Rule 7.3(b) to impose only those additional conditions that are "reasonably necessary to secure [the] defendant's appearance."[2] As the majority notes, nothing in the trial court's order indicates that the additional bond is intended to secure Watson's appearance. Accordingly, I agree with the majority's conclusion that the trial court erred in conditioning Watson's release on payment of the additional bond. [*] 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] The provisions of Title 15, § 372, were brought forward into Ala.Code 1975, at § 12-22-170. The provisions of Title 15, § 368, apparently were not brought forward into the 1975 Code. See Ala.Code 1975, vol. 2 (1990 repl. vol.), at 576, "Table of Comparative Sections Showing Code of Alabama, Recompiled 1958 Sections and Corresponding Sections in Code of Alabama, 1975." We are quoting from Alabama Rules of CourtState (West Group 1999). The Lawyers Cooperative Publishing version of Rule 9(b), Ala. R.App. P., refers to the current Code section, § 12-22-170, contrary to the actual out-of-date language of the Rule. [2] I note that Rule 7.3(b)(6) authorizes the trial court to impose "[a]ny other conditions which the court deems reasonably necessary." However, that authority is expressly limited by the qualifying language in the introductory clause of Rule 7.3(b), which requires that the imposed "conditions [be] reasonably necessary to secure [the] defendant's appearance."

January 28, 2000

46e8aef5-5afc-48bc-8e30-055927005ef1

McElroy v. McElroy

N/A

1160394

Alabama

Alabama Supreme Court

Rel: December 15, 2017 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2017-2018 ____________________ 1160394 ____________________ Tomeka McElroy and Marlon McElroy v. Tracy McElroy Appeal from Jefferson Circuit Court (CV-12-828) BRYAN, Justice. Tomeka McElroy and Marlon McElroy (hereinafter referred to collectively as "the appellants") appeal from a judgment of the Jefferson Circuit Court ("the circuit court") denying 1160394 their will contest. For the reasons set forth herein, we dismiss the appeal. Procedural History On April 14, 2010, Tracy McElroy filed a petition to probate the will of Clifton McElroy, Jr., in the Jefferson Probate Court ("the probate court"). The petition stated that Clifton died on April 11, 2010, and that Clifton's will, which was attached to the petition and which named Tracy as the executrix, was self-proving in accordance with the requirements of § 43-8-132, Ala. Code 1975. On the same day, the probate court admitted the will to probate and issued letters testamentary to Tracy. On September 16, 2010, the appellants filed a will contest in the probate court, alleging that Clifton's signature on the will was forged and that, therefore, the will was not properly executed.1 The appellants, who were both Clifton's heirs and beneficiaries under his will, demanded that their will contest be transferred to the circuit court pursuant to § 43-8-198, Ala. Code 1975, which provides for the transfer of a will contest by the probate court to the circuit 1Some parts of the record indicate that the will contest was filed on September 15, 2010. 2 1160394 court, or that the administration of the estate, including the will contest, be removed to the circuit court pursuant to § 12-11-41, Ala. Code 1975, because, they said, the estate could be better administered in the circuit court. Tracy filed a motion to dismiss the will contest, arguing that, because the will had already been admitted to probate, the will contest could not be filed pursuant to § 43-8-190, Ala. Code 1975, and that the only other provision for filing a will contest, § 43-8-199, Ala. Code 1975, required the appellants to file the will contest in the circuit court. Tracy also moved to dismiss the appellants' "petition to remove" the administration of the estate to circuit court pursuant to § 12-11-41. The appellants argued that the will contest was properly filed in the probate court because a local act applicable to Jefferson County gave probate courts concurrent jurisdiction with circuit courts to decide will contests. Specifically, Act No. 1144, Ala. Acts 1971, provides that the probate court has "general jurisdiction concurrent with that of the Circuit Courts of this State, in equity, in the administration of the estates of deceased persons." Thus, they argued, because the 3 1160394 probate court shared concurrent equitable estate jurisdiction with the circuit court, the probate court had jurisdiction to consider their will contest pursuant to § 43-8-199 and Act No. 1144. They also argued that the circuit court could have jurisdiction over their will contest pursuant to § 12-11-41, which allows for the removal of the administration of an estate from probate court to the circuit court "at any time before a final settlement thereof." On November 30, 2010, the appellants filed in the probate court a notice of withdrawal of their petition to remove the administration of Clifton's estate from the probate court to the circuit court. In the notice, the appellants specifically asked the probate court to maintain jurisdiction of the will contest. However, on December 14, 2010, the probate court entered an order purporting to remove the administration of Clifton's estate to the circuit court pursuant to § 12-11-41. The probate-court record was certified by the probate court and was filed in the circuit court on June 21, 2012.2 There 2The probate court included a cover page on its certified record that listed each document included in the certified record. The cover page also states: "In compliance with an Order of the Circuit Court, I hereby certify that the following are all the papers on file and of record in the matter of the Estate of Clifton McElroy, Jr., deceased." 4 1160394 is nothing in the record before this Court indicating that the circuit court entered an order removing the administration of the estate from the probate court.3 After discovery delays, multiple continuances, and a failed summary-judgment motion filed by the appellants, the circuit court conducted a bench trial on the will contest over three days in December 2016. On December 29, 2016, the circuit court entered a judgment finding that Clifton's will did not meet the requirements of a self-proving will pursuant to § 43-8-132 but that the will was properly executed and, therefore, valid, pursuant to § 43-8-131, Ala. Code 1975. In that judgment, the circuit court, discussing its jurisdiction, stated that "the Probate Court of Jefferson County removed the administration of the Estate of Clifton McElroy, Jr. to the Circuit Court of Jefferson County pursuant to ... § 12-11-41" and that, "[a]fter the Probate Court of Jefferson County removed the administration of the [e]state ... to the Circuit However, there is no order of the circuit court in the record on appeal asking the probate court to certify its record from the proceedings in the probate court. 3The first order entered by the circuit court is dated September 12, 2012, and it set the case for a status conference on October 10, 2012. 5 1160394 Court of Jefferson County, the Circuit Court ordered the Jefferson County Probate Court to send the certified record (which included the will contest) and documents to the Jefferson Circuit Court." (Emphasis added.) The appellants timely appealed. Jurisdiction Although neither party raises a question before this Court regarding the circuit court's subject-matter jurisdiction to consider the appellants' will contest, the absence of subject-matter jurisdiction cannot be waived, and it is the duty of an appellate court to notice the absence of subject-matter jurisdiction ex mero motu. See MPQ, Inc. v. Birmingham Realty Co., 78 So. 3d 391, 393 (Ala. 2011). If the circuit court's jurisdiction to consider the will contest was never properly invoked, then the judgment entered on December 29, 2016, is void and would not support an appeal. MPQ, 78 So. 3d at 394 ("'A judgment entered by a court lacking subject- matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment.'" (quoting Vann v. Cook, 989 So. 2d 556, 559 (Ala. Civ. App. 2008))). 6 1160394 "The jurisdiction of both the probate court and the circuit court over will contests is statutory and limited. Ex parte Stephens, 259 Ala. 361, 66 So. 2d 901 (1953). The only jurisdiction a court can take over such cases is that granted by statute. A court cannot depart from the procedures delineated in the statute and still retain jurisdiction." Kaller v. Rigdon, 480 So. 2d 536, 539 (Ala. 1985). Before both the probate court and the circuit court, Tracy maintained that the will contest was improperly filed because the appellants filed the contest in the probate court after the will had been admitted for probate. "Alabama law pertaining to will contests is well settled and long-standing: "'In Alabama a will may be contested in two ways: (1) under § 43-8-190 ..., before probate, a contest may be instituted in the probate court or (2) under § 43-8- 199 ..., after probate and within six months thereof, a contest may be instituted by filing a complaint in the circuit court of the county in which the will was probated.'" Ex parte Floyd, 105 So. 3d 1193, 1195 (Ala. 2012) (quoting Stevens v. Gary, 565 So. 2d 73, 74 (Ala. 1990) (emphasis added)). It is undisputed that Clifton's will was admitted for probate on April 14, 2010, approximately five months before the appellants filed their will contest in the probate court. 7 1160394 Accordingly, the will contest could not have been filed pursuant to § 43-8-190. In most circumstances, the will contest in this case would have also been improperly filed pursuant to § 43-8-199 because, although it was filed within six months after the will was admitted for probate, the appellants filed the contest in the probate court rather than the circuit court. See Bond v. Pylant, 3 So. 3d 852 (Ala. 2008) (holding that a will contest filed in the probate court after the will was admitted for probate was a nullity and stating that, pursuant to § 43-8-199, the contest should have been filed in the circuit court within six months of the admission of the will to probate). However, in this case, the will contest was properly filed in the probate court pursuant to § 43-8-199 because the probate court, which lies in Jefferson County, has concurrent equity jurisdiction over estates with the circuit court pursuant to Act No. 1144, § 1. In nearly identical circumstances, this Court has held that the Mobile Probate Court, which also shares general equity jurisdiction concurrent with that of the circuit courts of this State in the administration of the estates of deceased persons, see Act No. 974, Ala. Acts 1961, had jurisdiction to 8 1160394 consider a will contest filed after the will was admitted for probate based on the concurrent jurisdiction imparted to the probate court by Act No. 974. See Coleman v. Richardson, 421 So. 2d 113 (Ala. 1982) (analyzing former § 43-1-79, Ala. Code 1975, which is now codified at § 43-8-199, and holding that the probate court had jurisdiction over the will contest even though it was filed in the probate court after the will was admitted for probate based on the conference of concurrent equity jurisdiction by Act No. 974). Accordingly, we conclude that the probate court had jurisdiction over the appellants' will contest at the time it was filed. See Daniel v. Moye, 224 So. 3d 115, 131 n.9 (Ala. 2016) (noting that "there are currently four counties in Alabama –- Mobile, Jefferson, Shelby, and Pickens –- in which the probate courts have been vested with concurrent equitable estate jurisdiction with the circuit court to try will contests after a will has been admitted to probate" (emphasis added)). When they filed their will contest, the appellants moved the probate court to transfer the contest to the circuit court pursuant to § 43-8-198 or to remove the administration of the estate, including the will contest, to the circuit court 9 1160394 pursuant to § 12-11-41. See generally Ex parte Clayton, 514 So. 2d 1013, 1017 (Ala. 1987) ("Administration of the estate is a broad concept involving all matters necessary to reach a final settlement of the estate. ... When the administration of the estate is removed, all aspects of the administration must be removed."). The record indicates that the appellants subsequently withdrew their request to have the will contest transferred to the circuit court or the administration of the estate removed to the circuit court; nevertheless, the probate court entered an "Order of Removal," citing § 12-11-41, stating that "the administration of the estate is hereby removed to the Circuit Court of Jefferson County." (Emphasis added.)4 The probate court's "Order of Removal" was ineffective to invoke the circuit court's jurisdiction over the administration of the estate. In DuBose v. Weaver, 68 So. 3d 814 (Ala. 2011), this Court held that "the filing of a 4We make no determination regarding whether the will contest could have been properly transferred to the circuit court pursuant to § 43-8-198 at the time the appellants requested such a transfer. See generally Bond, 3 So. 3d at 854 (holding that § 43-8-198 must be read in conjunction with § 43-8-190). Regardless, the probate court's "Order of Removal" simply cannot be read as an attempt to transfer only the will contest to the circuit court pursuant to § 43-8-198. 10 1160394 petition for removal in the circuit court and the entry of an order of removal by that court are prerequisites to that court's acquisition of jurisdiction over the administration of the estate pursuant to § 12-11-41." 68 So. 3d at 822 (some emphasis added). The Court in DuBose further noted that "the probate court does not have authority to transfer the administration of an estate to the circuit court; the authority to remove the administration of an estate from the probate court to the circuit court resides in the circuit court." 68 So. 3d at 817 n.4. In the present case, there is no indication that any party filed a petition for removal in the circuit court or that the circuit court ever entered an order removing the administration of the estate from the probate court. Under the circumstances of this case, the removal of the administration of the estate was the only ostensible basis the circuit court had for exercising jurisdiction over the appellants' will contest. Accordingly, because the administration of the estate was not properly removed to the circuit court, the circuit never acquired subject-matter jurisdiction over the administration of the estate or the pending will contest. 11 1160394 The procedure for removing a case from the probate court to the circuit court pursuant to § 12-11-41 is not altered in any way by the fact that the probate court in this case had concurrent equitable estate jurisdiction with the circuit court pursuant to Act No. 1144. Section 6 of Act No. 1144 provides, in pertinent part: "The jurisdiction conferred by this act on the Probate Courts and the Probate Judges of such counties is intended to be cumulative only, and it is not intended hereby to in any manner limit or restrict the present jurisdiction of the Circuit Courts or the Probate Courts of such counties, including, without limitation, the right to appeal from orders, judgments and decrees of the Probate Judges of such counties in the manner as now provided by law. Nothing in this act shall be construed as prohibiting or as creating any conditions to the removal of any estates, or the administration of any estates, from the Probate Court to the Circuit Court, in equity, as is now provided by law." In Ex parte Clayton, supra, this Court, interpreting § 6 of Act No. 1144, stated that, "[t]hough the local act confers equity jurisdiction on the probate court, § 6 of the local act makes it evident that powers granted to the court pursuant to the local act in no way affect the rights and conditions for removal under the general statute." 514 So. 2d at 1015-16. In that case, the Court held that the administratrix of an estate 12 1160394 had the right to seek, and the circuit court had authority to order, the removal of the administration of an estate after the Jefferson Probate Court had invoked its concurrent equity estate jurisdiction to consider a breach-of-warranty claim against the estate and a claim against the administratrix individually. Generally, "[o]nce the administration and settlement of an estate are removed from the probate court, the probate court loses jurisdiction over the estate, and the circuit court obtains and maintains jurisdiction until the final settlement of the case." Oliver v. Johnson, 583 So. 2d 1331, 1332 (Ala. 1991). However, in this case, the administration of Clifton's estate was not properly removed from the probate court; therefore, the circuit court never obtained jurisdiction over the administration of Clifton's estate. Thus, the circuit court did not have subject-matter jurisdiction to consider the will contest, and the judgment entered by the circuit court on the will contest is void. Accordingly, the appeal is due to be dismissed. MPQ, 78 So. 3d at 394. Conclusion 13 1160394 The judgment of the circuit court is void and the appeal, therefore, is dismissed. APPEAL DISMISSED. Stuart, C.J., and Bolin, Murdock, and Main, JJ., concur. 14

December 15, 2017

0653ca2b-d7ee-4600-bd99-b9e9873c9dd0

Ex Parte Turner

792 So. 2d 1141

1971735

Alabama

Alabama Supreme Court

792 So. 2d 1141 (2000) Ex parte Michael Dewayne TURNER.[*] (Re Michael Dwayne Turner. v. State). 1971735. Supreme Court of Alabama. April 7, 2000. Rehearing Denied October 27, 2000. *1142 Joe W. Morgan, Jr., Birmingham, for petitioner. Bill Pryor, atty. gen., and Cedric B. Colvin, asst. atty. gen., for respondent. JOHNSTONE, Justice. Michael Dewayne Turner was convicted of trafficking marijuana and failure to affix the appropriate tax stamps. Turner appealed his conviction to the Court of Criminal Appeals, where he contended, in pertinent part, that the trial court erred in denying his motion to suppress the search warrant because there was no legal basis for a search. The Court of Criminal Appeals affirmed Turner's conviction and, of particular pertinence, affirmed the trial court's denial of Turner's motion to suppress evidence seized when the police officers executed an anticipatory search warrant at his residence. We granted Turner's petition for a writ of certiorari, which seeks review of only this single issue. We hold that Alabama law did not authorize the warrant and that the exclusionary rule requires the suppression of the evidence. Accordingly, we reverse the judgment of the Court of Criminal Appeals. Michael Turner came to the attention of law enforcement officials after a United States postal inspector noticed a package that was addressed to Turner at his Birmingham residence. The package, mailed from Los Angeles, California, bore a return address indicating "resident" as the return person. Suspicious of the contents of the package, the inspector asked for assistance from the Birmingham K-9 patrol. The dogs indicated the presence of marijuana by "alerting" to the package. The inspector obtained a federal search warrant from a United States magistrate judge and opened the package. He found five individually wrapped bundles of material that field-tested as marijuana. The United States Attorney's office declined to prosecute Turner. The inspector then referred the matter to the Birmingham Police Department, which agreed to prosecute. Two of the five bundles of marijuana were turned over to the Birmingham Police Department. The other three were repackaged and a "controlled delivery" to Turner was arranged. Sergeant Michael Ashworth of the Birmingham Police Department obtained an anticipatory search warrant from a district court judge. The affidavit in support of the search warrant, issued on September 6, 1995, read in pertinent part: On September 6, 1995, a "controlled delivery" was accomplished when a United States postal inspector, disguised as a mail carrier, delivered the package to Turner's apartment. Turner took the package inside the apartment but did not open it. When he attempted to leave the apartment, Turner was detained by a Birmingham police officer. Later that day, Sergeant Ashworth brought the search warrant, searched the premises, and seized the package. Turner filed a motion to suppress the evidence obtained by means of the search warrant. The motion was denied, and Turner was tried and convicted. He appealed to the Court of Criminal Appeals. The Court of Criminal Appeals, affirming the trial court's denial of the appellant's motion to suppress, relied on this Court's decision in Ex parte Walls, [Ms. 1960352, August 7, 1997] ("[w]hen the warrant in this case was executed, Alabama case law [Oswalt v. State] specifically held that such search warrants were authorized"), to find that the police officers were acting on a facially valid warrant when they searched the appellant's residence. On the same day the Court of Criminal Appeals issued its affirmance, however, this Court withdrew the Walls opinion followed by the Court of Criminal Appeals in this case, and substituted, in place of its withdrawn Walls opinion, Ex parte Walls, 711 So. 2d 490 (Ala.1997), which reversed Walls's conviction on the merits and rendered a judgment in his favor grounded on insufficiency of the evidence. This Court thereby reversed the Court of Criminal Appeals' decision of Walls v. State, 711 So. 2d 483 (Ala.Crim.App.1996), without discussing any issue relating to the execution of the anticipatory search warrant. Thereafter, the Court of Criminal Appeals withdrew its original opinion in this Turner case and substituted an opinion which held that "the deterrent purpose of the exclusionary rule would not be served here, because the police did not have knowledge, nor could they be charged with knowledge, that the warrant was invalid because of its anticipatory nature." Turner v. State 792 So. 2d 1138, 1140 (Ala. Crim.App.1998). Although the Court of Criminal Appeals opined that "the search warrant in this case was not an anticipatory warrant," it recognized that it was anticipatory in nature. Turner, 792 So. 2d at 1139. The record reflects that Sergeant Ashworth testified at the September 18, 1996 suppression hearing in this case, that he "sat down and wrote an anticipatory search warrant." Turner argues that the Court of Criminal Appeals' opinion affirming his conviction is in conflict with a prior decision of this Court on the same point of law. Specifically, Turner contends that the Court of Criminal Appeals' finding that the police officers were acting in good faith in executing a facially valid anticipatory search warrant conflicts with this Court's opinion in Ex parte Oswalt, 686 So. 2d 368, 372 (Ala. 1996), released on May 24, 1996, which invalidated anticipatory search warrants. Ex parte Oswalt reversed Oswalt v. State, 686 So. 2d 361 (Ala.Crim.App.1994), which had upheld an anticipatory search warrant. *1144 This Court, in Ex parte Oswalt, explained that an anticipatory search warrant "anticipates that certain specific events will occur after the issuance of the warrant, those future events creating the probable cause that supports the warrant. If the future events do not occur, the warrant is void." Id. at 372. (Citations omitted.) Considering the language of § 15-5-2, Ala.Code 1975, and Rule 3.8, Ala. R.Crim. P., this Court concluded that the legislature did not intend to allow the issuance of a search warrant when "the crime to which the evidence at issue relates has not yet occurred and the evidence to be seized is not presently in the possession of the person whose premises are to be searched." Id. at 373. (Emphasis omitted.) Reading Rule 3.8 in pari materia with § 15-5-2, this Court stated: Ex parte Oswalt, 686 So. 2d at 373. (Emphasis omitted.) This Court concluded: "[A]lthough anticipatory search warrants may be constitutional, those which fail to comply with the requirements adopted by this Court in Rule 3.8 are currently impermissible in Alabama." Id. at 374. The Oswalt Court did not address the issue of the application of the "good faith" exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). The State argues that, at the time the warrant in this case was issued, at least six federal circuit courts of appeals had upheld anticipatory search warrants, as had the Court of Criminal Appeals in Oswalt v. State, supra. In 1996, however, in Ex parte Oswalt, supra, this Court reversed the Court of Criminal Appeals' Oswalt v. State decision. Thus, at the time the warrant to search Turner's home was issued on September 6, 1995, the Oswalt proceeding was not final.[1] We must decide whether *1145 the Court of Criminal Appeals' decision in Oswalt v. State served as precedent for the issuance of anticipatory search warrants until we reversed it.[2] The answer is no. The case of Grantham v. State, 540 So. 2d 779 (Ala.1988), is noteworthy. Grantham, limited to its facts, held that a holding by the Court of Criminal Appeals which was never repudiated by this Court had precedential value for the particular purpose of notice to the public until the Court of Criminal Appeals decision containing that holding was reversed by this Court on other grounds. In the case before us, the holding of Oswalt v. State urged by the State as precedent was the very ground of the reversal of that decision by this Court on certiorari review. This reversal nullified that Court of Criminal Appeals holding for all precedential purposes for the time periods both before and after the reversal. The case of United States v. Johnson, 457 U.S. 537, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982), is instructive on the topic of the retroactive effect of our reversal of Oswalt v. State. In Johnson, the United States Supreme Court examined the retroactivity of one of its decisions construing the Fourth Amendment. That *1146 Court had, in Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980), held that the Fourth Amendment prohibits the police from making an entry into a suspect's home to make a routine felony arrest absent a warrant or consent. The question addressed by the Johnson Court was whether the rule announced in Payton applied to an arrest made before the Court decided Payton. The Supreme Court considered three factors. (1) Does the decision of the Court apply settled precedents to new and different factual situations? (2) Has the Court expressly declared a rule of criminal procedure to be "a clear break with the past"? (3) Did the Court's ruling immunize the defendant's conduct from punishment or serve "to prevent [his] trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of [that] trial"? Johnson, 457 U.S. at 549-50, 102 S. Ct. 2579. Finding that Payton fell in none of the stated categories, the Johnson Court reversed the New York Court of Appeals and remanded the cause for a new trial without the unconstitutionally obtained evidence. The Johnson Court found that "retroactive application of Payton to all previously nonfinal convictions would provide a principle of decisionmaking consonant with our original understanding of retroactivity in Linkletter [v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965),] and [Tehan v. United States ex rel.] Shott, [382 U.S. 406, 86 S. Ct. 459 (1966),]" that "application of Payton to cases pending on direct review would comport with our judicial responsibilities `to do justice to each litigant on the merits of his own case,'" and application "would further the goal of treating similarly situated defendants similarly." Johnson, 457 U.S. at 554-55, 102 S. Ct. 2579. The Supreme Court recognized that "[a]n approach that resolved all nonfinal convictions under the same rule of law would lessen the possibility that [the] Court might mete out different constitutional protection to defendants simultaneously subjected to identical police conduct." Id. at 556, 102 S. Ct. 2579. By adopting the criteria stated in the Johnson case, we too "treat similarly situated defendants similarly." By applying the same law to Mr. Turner and Mr. Oswalt alike, we avoid arbitrary discrimination. We likewise honor the traditional limit on judicial power, that courts have no authority to change a particular statute or provision of the constitution but only to declare what it has meant since its inception, and the last controlling decision overrides prior contrary decisions in declaring the meaning of the particular statute or provision from its inception. We find, first, that the decision of this Court in Ex parte Oswalt, supra, applied settled precedents. Second, the holding announced in Ex parte Oswalt was not "a clear break with the past." Third, this Court's ruling did not immunize the defendant's conduct from punishment or serve "to prevent [his] trial from taking place at all." Rather Ex parte Oswalt reversed the Court of Criminal Appeals' holding and judgment that all anticipatory search warrants were valid under Alabama law and remanded the cause to the Court of Criminal Appeals with instructions to remand it to the trial court for proceedings consistent with the opinion. Thus Ex parte Oswalt eliminated ab initio any and all precedential effect of Oswalt v. State. The ultimate argument advanced by the State is that the Leon, supra, "good faith" exception to the exclusionary rule justifies the trial judge's denial of Turner's motion to suppress the marijuana as evidence. This argument should be analyzed in the context of the constitutional and legal fundamentals. *1147 The Fourth Amendment to the United States Constitution provides: This constitutional guarantee is applicable to the States. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). Further, our own constitution provides similar protection against unreasonable search and seizure: Art. I, § 5, Alabama Constitution of 1901. "There is no common law authorizing search warrants. Statutes authorizing searches are strictly construed against the prosecution [and] in favor of the liberty of the citizen." Kelley v. State, 55 Ala.App. 402, 403, 316 So. 2d 233, 234 (Ala.Crim.App. 1975). See also, Rivers v. State, 406 So. 2d 1021, 1022 (Ala.Crim.App.1981), cert. denied, 406 So. 2d 1023 (Ala.1981). At the time the search warrant was obtained in this case, September 6, 1995, there was neither statute nor rule permitting "anticipatory" search warrants.[3] Rule 3.8 authorized a search warrant to be issued "if there [was] probable cause to believe that the property sought: (Emphasis added.) While no statute or rule of procedure authorized anticipatory search warrants, the State, contending that the trial court was correct in its denial of Turner's motion to suppress, argues that the good faith exception to the exclusionary rule applies because the officers reasonably relied on a warrant issued by a neutral and detached magistrate, even if the warrant ultimately be found invalid. In this regard the State first cites the 1996 decision of the Court of Criminal Appeals in Walls v. State, supra. There the Court of Criminal Appeals acknowledged that this Court's opinion in Ex parte Oswalt required it to find that the anticipatory search warrant issued against Walls was invalid. The Court of Criminal Appeals, however, upheld the search warrant in Walls on the basis of the Leon, supra, "good faith" exception to the exclusionary rule on the rationale that the officers had relied on the warrant, which was issued at a time after the Court of Criminal Appeals had, in Oswalt v. State, held anticipatory *1148 search warrants valid in Alabama. Walls v. State was, however, as already explained, later reversed by this Court in Ex parte Walls, [Ms. 1960352, August 8, 1997], opinion withdrawn and superseded on rehearing, Ex parte Walls, 711 So. 2d 490 (Ala.1997). In support of its "good faith" argument, the State next cites Ex parte Morgan, 641 So. 2d 840, 843 (Ala.1994), United States v. Leon, supra, and Arizona v. Evans, 514 U.S. 1, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995). All three cases cited by the State are distinguishable from the instant case in that none involve a search warrant not authorized by applicable statute or rule. In Ex parte Morgan, supra, this Court granted certiorari review to determine whether certain evidence seized following a warrantless search was admissible. On the day Morgan was arrested, two Florida law enforcement officers, an F.B.I. agent whose office was in Florida, and an agent from the United States Customs Service, accompanied Alabama officers to the motel room where Morgan was staying. One of the Florida officers had in his possession two Florida warrants for Morgan's arrest for sexual battery. Morgan did not consent to the officer's request to enter the room and to conduct a search. Once one of the Florida officers informed Morgan that he had a warrant for his arrest, however, Morgan allowed the officers to enter the room. An officer from the Gulf Shores Police Department arrested Morgan for being a fugitive from justice based on the Florida warrants, though he did not have a fugitive-from-justice warrant as required by § 15-9-40, Ala.Code 1975. While the Alabama officers were in Morgan's motel room, they observed a number of items that had been described by Alabama victims recounting the circumstances of the offenses against them. The Alabama officers then procured a search warrant and recovered certain items of evidence. Moving to suppress the evidence found in his motel room, Morgan contended that the seizure was based on an illegal warrantless arrest. The trial court denied the motion to suppress and admitted the evidence. Morgan was convicted of kidnapping, possession of obscene material, enticement, and indecent exposure. On appeal, the Court of Criminal Appeals held that, while the warrantless arrest was invalid because the arrest did not meet the requirements of §§ 15-9-40 and 15-9-41, sufficient probable cause existed to arrest Morgan for sexual offenses occurring in Alabama and, therefore, "because the arrest was proper, the search and seizure of the incriminating evidence was legal, and the trial court correctly denied the appellant's motion to suppress." Morgan v. State, 641 So. 2d 834, 838 (Ala.Crim.App.1992). On certiorari review, this Court agreed that the arrest was invalid because it did not meet the requirements of §§ 15-9-40 and 15-9-41 in that the police had not obtained a fugitive-from-justice warrant before making the arrest, but held that the exclusionary rule was inapplicable because "[u]nder § 15-9-40, the Florida warrants, if properly authenticated, would serve as a basis for a fugitive from justice warrant" and "an objective officer could have reasonably relied upon the two Florida warrants in the possession of a Florida law enforcement official present at the arrest scene to conduct the warrantless arrest." 641 So. 2d at 843. In the case at bar, the search warrant issued was fatally invalid from its inception because it was not authorized by Alabama rule or statute. In Arizona v. Evans, supra, the United States Supreme Court limited itself to the question of whether a court employee's departure from established record keeping procedures, which caused the record of the defendant's arrest warrant to remain in the computer system after the warrant had been quashed, is the kind of error to *1149 which the exclusionary rule applies. In Evans, a Phoenix police officer observed Evans driving the wrong way on a one way street. The officer pulled Evans over and, after being told by Evans that his license had been suspended, entered Evans's name into his patrol car computer data terminal. The computer inquiry confirmed that Evans's license had been suspended and that there was an outstanding misdemeanor warrant for his arrest. The police officer placed Evans under arrest and, while the officer hand-cuffed Evans, he smelled marijuana. The officer searched Evans's car and found a bag of marijuana. In determining whether a court employee's departure from established record keeping procedures, which caused the record of the defendant's arrest warrant to remain in the computer system after the warrant had been quashed, is the kind of error to which the exclusionary rule applies, the United States Supreme Court held that such clerical errors fell within the "good faith" exception to the exclusionary rule. Turner's case is clearly distinguishable, however, because the search and seizure in Turner's case depend on an anticipatory search warrant not authorized by rule or statute when issued. In United States v. Leon, supra, the United States Supreme Court addressed the question of "whether the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause." 468 U.S. at 900, 104 S. Ct. 3405. The search warrant issued in the Leon case was challenged by motions to suppress the evidence seized. After an evidentiary hearing, the district court found the affidavit insufficient to establish probable cause and suppressed some of the evidence as to some defendants but did not suppress all of the evidence as to all the defendants because none of the defendants had standing to challenge all the searches. The government had argued that the police officer acted in good faith and, thus, the Fourth Amendment exclusionary rule should not apply where evidence is seized with a reasonable, good faith reliance on a search warrant. The district court declined to accept that argument. On appeal, the Court of Appeals for the Ninth Circuit affirmed the district court, finding that the information in the affidavit that set forth facts to demonstrate the basis of the informant's knowledge of criminal activity, was fatally stale. The Court of Appeals also determined that the information provided by the informant was inadequate under both prongs of the two-part test of Aquilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). The Court of Appeals declined to recognize a good faith exception to the Fourth Amendment exclusionary rule. The United States Supreme Court, however, upon reviewing the case, opined that, in the Fourth Amendment context, the exclusionary rule could "be modified somewhat without jeopardizing its ability to perform its intended functions" and reversed the judgment of the Court of Appeals. 468 U.S. at 905, 104 S. Ct. 3405. The specific holding of Leon was that, although the search warrant was ultimately found to be unsupported by probable cause, the evidence obtained would not be excluded if the officers reasonably relied on a search warrant issued by a detached and neutral judge. Here, the issue is not one of probable cause but of an impermissible search warrant. In Leon, the United States Supreme Court provides guidance for analyzing a *1150 suppression issue. Leon explains that "suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule." Id. at 918, 104 S. Ct. 3405. In the case now before us, we must address whether evidence obtained by police officers who acted in reliance on a warrant issued in violation of statutory and procedural law must be excluded. Leon states that "[t]here is no need for courts to adopt the inflexible practice of always deciding whether the officers' conduct manifested objective good faith before turning to the question whether the Fourth Amendment has been violated.... [C]ourts have considerable discretion in conforming their decision-making processes to the exigencies of particular cases." 468 U.S. at 924-25, 104 S. Ct. 3405. "If the resolution of a particular Fourth Amendment question is necessary to guide future action by law enforcement officers and magistrates, nothing will prevent reviewing courts from deciding that question before turning to the good-faith issue." 468 U.S. at 925, 104 S. Ct. 3405. The United States Supreme Court observes in Leon that "[d]eference to the magistrate ... is not boundless" and that "the courts must also insist that the magistrate purport to `perform his "neutral and detached" function and not serve merely as a rubber stamp for the police....' A magistrate failing to `manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application' and who acts instead as `an adjunct law enforcement officer' cannot provide valid authorization for an otherwise unconstitutional search." (Citations omitted.) Leon, 468 U.S. at 914, 104 S. Ct. 3405. The courts are duty-bound to superintend the preservation of citizens' constitutional protections. When a search warrant is issued without the authority of a constitutional statute or court rule correctly interpreted, application of the exclusionary rule is necessary to preserve the citizens' remaining protections under the Fourth Amendment to the United States Constitution and Article I, § 5 of the Alabama Constitution of 1901 because a motion to suppress is the only effective way to invoke the supervision of the trial courts and the appellate courts over this field of law. The Fourth Amendment applies to the judicial as well as the executive branch. As Justice Day, speaking for the unanimous court, states in Weeks v. United States, 232 U.S. 383, 391-92, 34 S. Ct. 341, 58 L. Ed. 652, (1914), overruled on other grounds, Mapp, supra: (Emphasis added.) In Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S.Ct. *1151 2022, 29 L. Ed. 2d 564 (1971), the United States Supreme Court said: Our state constitution too secures our citizens against unlawful search and seizure, governs the conduct of magistrates and judges, and governs the decisions of our courts with its prohibition against unlawful search and seizure and its requirement for a valid warrant. For us to decide whether the evidence should be suppressed, the State urges this Court to use the standard stated in Ex parte State, 476 So. 2d 632, 635 (Ala.1985): "`[i]n the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.'" (Quoting Leon, 468 U.S. at 926, 104 S. Ct. 3405.) The State observes that, in this case, there is no allegation that the magistrate abandoned his "detached and neutral role." The magistrate, however, issued a warrant that was not, at that time, authorized by statute or court rule. At the time the warrant was issued and executed, Alabama statutory law and procedural rules neither permitted nor contemplated anticipatory search warrants. Without the authority of the warrant, the police officers in Turner's case lacked authority to invade the privacy of his home or to conduct any search or seizure. Magistrates must heed the law of this State in issuing search warrants. The district judge who issued this warrant was bound by the strictures of the law. The trial court had the obligation, during the suppression hearing, to determine whether any Alabama statute or rule of procedure authorized anticipatory search warrants. The appellate courts, including this one, are duty-bound to preserve the rule of law in the issuance of search warrants. Suppression of evidence seized pursuant to a search warrant issued contrary to the rule of law is necessary to preserve the rule of law itself. Therefore we hold that the trial court erred in denying Turner's motion to suppress. For the reasons stated, 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 further proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and COOK, LYONS, and ENGLAND, JJ., concur. SEE, J., concurs specially. MADDOX and HOUSTON, JJ., dissent. BROWN, J., recuses herself.[*] SEE, Justice (concurring specially). Under this Court's analysis in Ex parte Oswalt, 686 So. 2d 368, 372 (Ala.1996), anticipatory search warrants were not authorized under Alabama law at the time the *1152 police officers searched Michael Turner's home. Because I was not on the Court when it decided Oswalt and because I have not had the benefit of argument on the validity of that case,[4] I must apply the holding in Oswalt equally to all criminal defendants. MADDOX, Justice (dissenting). When the search warrant in this case was issued, the Alabama Court of Criminal Appeals[5] and at least six courts of appeals for Federal circuits[6] had held that anticipatory search warrants were authorized. I realize that this Court, in Ex parte Oswalt, 686 So. 2d at 373 (Ala.1996), held that anticipatory search warrants were not authorized under the provisions of Rule 3.8, Ala.R.Crim.P. I dissented in that case. My view of what the law was, and should have been, is adequately stated in my dissenting opinion in Ex parte Oswalt. HOUSTON, Justice (dissenting). I dissented in Ex parte Oswalt, 686 So. 2d 368 (Ala.1996); I dissent again because I think Oswalt was wrongly decided. If the law remains as this Court stated it in Oswalt, then I will at some point be compelled to follow it; however, we have not reached that point, for I still hope that this Court will realize that Homer nodded in Oswalt. MADDOX, J., concurs. [*] Note from the reporter of decisions: The Court of Criminal Appeals spells this defendant's name "Michael Dwayne Turner." [1] By "final" we mean that the proceedings on direct review have been completed or the time has elapsed for review by the Alabama state courts. See, for example, United States v. Johnson, 457 U.S. 537, 542 n. 8, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982) ("By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed [or a petition for certiorari finally denied, ...]...."). [2] The following chart shows the sequence of the events in Turner's case and the release dates of the various judgments by the Court of Criminal Appeals and this Court discussed in this opinion: September 9, 1994 Court of Criminal Appeals issues opinion in Oswalt v. State, 686 So. 2d 361 (Ala.Crim.App.1994), finding "anticipatory search warrants" valid. September 6, 1995 "Anticipatory search warrant" issued against Michael Turner, a "controlled delivery" made, marijuana seized and Turner arrested. May 24, 1996 Supreme Court of Alabama releases Ex parte Oswalt, 686 So. 2d 368 (Ala.1996), finding "although anticipatory search warrants may be constitutional, those which fail to comply with the requirements adopted by this Court in Rule 3.8 are currently impermissible in Alabama." 686 So. 2d at 373. The judgment of the Court of Criminal Appeals in Oswalt is reversed "based on the court's ruling that all anticipatory search warrants are valid under Alabama law" and the cause is remanded. 686 So. 2d at 374. October 11, 1996 Court of Criminal Appeals releases Walls v. State, acknowledging the holding in Ex parte Oswalt, but finding the search warrant in Walls fell within the "good faith exception" because the police officers were relying on the Court of Criminal Appeals' decision in Oswalt v. State. April 23, 1997 Trial court denies Michael Turner's motion to suppress, finding that officers acted in "good faith" in relying on the search warrant issued by a "neutral and detached magistrate" and that "exigency of circumstances" permitted a warrantless search of premises. April 23-24, 1997 Turner is tried and convicted. August 7, 1997 Supreme Court of Alabama releases the first version of Ex parte Walls, [Ms. 1960352], holding that "[w]hen the warrant in this case [Walls] was executed, Alabama case law [Oswalt v. State] specifically held that such search warrants were authorized." November 14, 1997 Court of Criminal Appeals releases its opinion in this case [Turner v. State] finding that police officers relied on a facially valid warrant. November 14, 1997 Supreme Court of Alabama, on rehearing of Ex parte Walls, reverses and renders judgment in favor of Walls. The issue of anticipatory search warrants is not discussed in this opinion, which withdraws this Court's earlier opinion in Walls's case in which it did discuss anticipatory search warrants. 711 So. 2d 490 (Ala.1997). March 6, 1998 The Court of Criminal Appeals substitutes a new opinion in Turner v. State, which continues to uphold the search by relying on Oswalt v. State on the rationale that Ex parte Oswalt, which reversed Oswalt v. State, is not applicable to Turner's case because the search warrant issued against Turner was executed approximately 9 months before Ex parte Oswalt was released. [3] We note that Rules 3.7 and 3.8, Ala. R.Crim. P., were amended, effective December 1, 1997, to permit anticipatory search warrants. See, Committee Comments to Rules 3.7 and 3.8. [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case. [4] The State has not challenged this Court's decision in Oswalt, and Rules 3.7 and 3.8, Ala. R.Crim. P., have been amended to expressly permit anticipatory search warrants. 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). [5] Oswalt v. State, 686 So. 2d 361 (Ala.Crim. App.1994). [6] United States v. Wylie, 919 F.2d 969 (5th Cir.1990); United States v. Garcia, 882 F.2d 699 (2d Cir.1989), cert. denied, 493 U.S. 943, 110 S. Ct. 348, 107 L. Ed. 2d 336 (1989); United States v. Dornhofer, 859 F.2d 1195 (4th Cir.1988), cert. denied, 490 U.S. 1005, 109 S. Ct. 1639, 104 L. Ed. 2d 155 (1989); United States v. Hale, 784 F.2d 1465 (9th Cir.1986), cert. denied, 479 U.S. 829, 107 S. Ct. 110, 93 L. Ed. 2d 59 (1986); United States v. Lowe, 575 F.2d 1193 (6th Cir.1978), cert. denied, 439 U.S. 869 (1978); United States v. Skaff, 418 F.2d 430 (7th Cir.1969).

April 7, 2000

049d6579-87aa-43d7-a42c-2be42b92b27d

Wehle v. Bradley

N/A

1160214

Alabama

Alabama Supreme Court

REL: December 22, 2017 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2017-2018 _________________________ 1160214 _________________________ Bonnie Wehle et al. v. Thomas H. Bradley et al. Appeal from Bullock Circuit Court (CV-07-22) SHAW, Justice. Bonnie Wehle, Penny Martin, and Sharon Ann Wehle (hereinafter referred to collectively as "the daughters") appeal from the Bullock Circuit Court's order, on remand, awarding damages against Thomas H. Bradley III; James H. 1160214 McGowan; and Grady Hartzog, as the personal representatives of the estate of the daughters' father (hereinafter referred to collectively as "the personal representatives"). The personal representatives purport to cross-appeal as to the portion of the circuit court's judgment awarding them attorneys' fees and expenses in connection with prior litigation between the parties.1 We affirm in part, reverse in part, and remand. Facts and Procedural History This is the third time this matter has been before this Court. See Wehle v. Bradley, 49 So. 3d 1203 (Ala. 2010) ("Wehle I"), and Wehle v. Bradley, 195 So. 3d 928 (Ala. 2015) ("Wehle II"). As established in Wehle I and Wehle II, the pertinent factual and procedural history is as follows: "'Robert G. Wehle died on July 12, 2002. His will was admitted to probate, and [in August 2002] letters testamentary were issued to [the personal representatives]. The will created a marital trust for Wehle's wife, Gatra Wehle, and a family trust for the daughters and Wehle's granddaughter, Debbie Kloppenberg. The personal representatives 1As will be discussed supra, the notice of appeal for the cross-appeal was filed in the circuit court, but no filing fee was paid, and the notice was never transmitted to this Court. 2 1160214 were named as cotrustees of both the marital trust and the family trust. "'In October 2005, the personal representatives petitioned the probate court for final settlement of the estate. They also filed an accounting of their administration of the estate. The accounting indicated that the personal representatives had paid themselves total compensation of $1,964,367.82, which, they allege, amounts to 5% of the value of Wehle's estate at the time the petition for final settlement was filed. The personal representatives argue that the amount of their fees is consistent with the statutory allowance for such fees. They also argue that Wehle told his attorney that he intended for the personal representatives' fees to be approximately 5% of the value of his estate. "'The daughters filed an objection to the accounting, arguing, among other things, that, pursuant to § 43-2-844(7), Ala. Code 1975, the personal representatives were required to obtain prior court approval before compensating themselves out of the assets of the estate. The daughters also argued that the amount of the compensation exceeded the "reasonable compensation" allowed by § 43- 2-848(a), Ala. Code 1975. "'In March 2007, Gatra Wehle petitioned to have the administration of the estate removed to the circuit court. The petition was granted. "'The personal representatives moved the circuit court for a partial summary judgment on the daughters' objections, 3 1160214 arguing (1) that the will authorized the payment of the compensation to the personal representatives without prior court approval, and (2) that the statute of limitations barred the daughters' claim that the fees of the personal representatives were excessive. On July 17, 2009, the circuit court granted the personal representatives' motion for a partial summary judgment, stating: "'"As to the claim that the Personal Representatives paid fees to themselves without obtaining Court approval, the Court finds that the terms of the Will expressly exempt the Personal Representatives from obtaining Court approval before payment of their fees. As to the claim that the fees paid were excessive, it is without factual dispute that [the daughters] had knowledge of the amount of these fees more than two years before they filed their contest of the fees and thus this claim is time barred."' "'On July 24, 2009, the daughters appealed to this Court from the circuit court's judgment pursuant to § 12-22-4, Ala. Code 1975.' "[Wehle I,] 49 So. 3d at 1205-07. "In Wehle I, this Court concluded that '[b]ecause the payment of compensation to the personal representatives without prior court approval was not expressly authorized by Robert G. Wehle's will, the circuit court erred in entering its partial summary judgment in favor of the 4 1160214 personal representatives.'• 49 So. 3d at 1209; see also Ala. Code 1975, § 43-2-844(7). This Court reversed the circuit court's judgment and remanded the case on that basis; it did not decide the issue whether the daughters' 'claim as to the excessiveness of the compensation is barred by the statute of limitations.' Id. "On remand, the circuit court held a hearing at which evidence was presented ore tenus as to the petition for final settlement of the estate. Thereafter, the circuit court entered its final order approving the compensation the personal representatives had paid themselves, i.e., $1,964,367.82, as 'reasonable compensation'•under § 43-2-848(a), Ala. Code 1975. The order denied the daughters' claim seeking to have the personal representatives pay interest on the compensation because they had paid it without prior court approval. Also, in regard to other issues raised by the daughters, the order denied the daughters' petition to remove McGowan as a cotrustee of the family trust, denied the daughters' request to tax costs relating to Wehle I against the personal representatives, and awarded attorney fees and costs to the personal representatives in the amount of $383,437.31 as to their defense against the daughters' claims on final settlement." Wehle II, 195 So. 3d at 932-34 (footnote omitted). Wehle II addresses the daughters' appeal from the above- described order. In that decision, we rejected the daughters' challenges to the reasonableness of the fees awarded to the personal representatives and the circuit court's refusal to remove McGowan as trustee. 195 So. 3d at 937, 943. However, we agreed with the daughters that the circuit court had erred 5 1160214 in denying their claim seeking to recover interest from the date of the premature compensation payments through the date those payments were finally approved by the circuit court. 195 So. 3d at 941-42. We similarly agreed that the circuit court erred "insofar as it determined the amount of the attorney fees" due the personal representatives in connection with their defense of the daughters' claims. 195 So. 3d at 946. Finally, we held that the circuit court had, as the daughters alleged, violated our mandate in Wehle I to tax the costs of the appeal in that case against the personal representatives. 195 So. 3d 947. Thus, based upon those determinations in Wehle II, "[w]e once again remand[ed] this case to the circuit court for the purposes of conducting an evidentiary hearing as to the personal representatives' claim for attorney fees and costs, of taxing the costs of the appeal in Wehle I against the personal representatives, and of awarding interest against the personal representatives and for the entry of a judgment consistent with this opinion." 195 So. 3d at 947 (emphasis added). Following our decision and remand in Wehle II, the personal representatives filed in the circuit court, pursuant to § 43-2-849, Ala. Code 1975, a request seeking an award of 6 1160214 litigation fees and expenses. At or around that same time, the daughters filed in the circuit court a "Calculation of Interest Due" in which, citing this Court's opinion in Wehle II, they concluded, based on applicable authority identified by this Court2 and as a result of the personal representatives' decision to compensate themselves prematurely, that they were entitled to pre-settlement interest of 6% per annum, compounded annually, or a total of $1,117,583.17. In addition, the daughters maintained that they were entitled to post-settlement interest calculated at a rate of 12% from July 19, 2011 -- the date the circuit court approved the personal representatives' request for compensation -- until the hearing on July 26, 2016, a total of $673,114.85 or, if alternately calculated at a rate of 6%, interest in the amount of $317,869.97. In their response to the daughters' request for interest, the personal representatives conceded the circuit court's ability to make such an award; however, they maintained that because the amount claimed by the daughters would essentially 2See Gordon v. Brunson, 287 Ala. 535, 542-43, 253 So. 2d 183, 189 (1971). 7 1160214 recapture the fee awarded them, the requested amount was punitive and not compensatory: It punished the personal representatives for delay in the proceedings that was not attributable to their conduct and that instead had resulted from the daughters' delay in prosecution. Thus, rather than the interest award the daughters' claimed, the personal representatives argued that the circuit court, in its discretion, could order, in the alternative, an award of any "profits" earned by the personal representatives on the fees paid before the circuit court's approval. They further contended that, in this case, the profits were $0 and that they had, in fact, lost money "due to the timing of the payments and the [effect of the] economic downturn." Acknowledging, however, our decisions in Wehle I and Wehle II, the personal representatives nonetheless conceded that "some award of interest is arguably required" and suggested that the fairest means of determining an appropriate award was "to determine the amount of interest that would have been earned by the Estate had the funds remained in the Estate until such time that [the circuit court] expressly approved the ... fees." According to the personal representatives, this 8 1160214 approach would return the estate and its beneficiaries to the condition they would have occupied in the absence of a breach. Using the interest rates applicable to the money-market account in which the estate's cash holdings had been deposited, the personal representatives proposed a pre- settlement interest award in the amount of $76,751.33 and, assuming the circuit court concluded such an award was due, a post-settlement interest award at a rate of 6% from the date of the circuit court's judgment or a total of $23,025.40. After additional submissions by the parties and a hearing, the circuit court entered, on November 2, 2016, a "Memorandum Opinion and Order" that specifically concluded that to award the amount the daughters sought "would be punitive in nature and would further create an unintended windfall for the Estate" and instead awarded the estate $156,000, which amount represented the "profit" earned by one of the personal representatives on his investment of the untimely received compensation.3 Upon the addition of "pre- 3Affidavit testimony from the remaining two personal representatives demonstrated that their investment of the untimely compensation actually lost money; thus, they had no "profit." 9 1160214 judgment interest"4 at a rate of 6% from the circuit Court's July 2011 judgment approving the compensation, or $56,160, the circuit court awarded the daughters $212,160. This award was used to offset the $449,880.63 attorney-fee/litigation-costs award to the personal representatives, which was also included in the circuit court's order. On December 9, 2016, the daughters filed a notice of appeal challenging the November 2016 order. See § 12-22-4, Ala. Code 1975 (authorizing an appeal of a partial settlement of an estate). On December 23, 2016, the personal representatives filed their own notice of cross-appeal from the November 2016 order on grounds that it failed to include an award of interest on their judgment for attorney fees and litigation costs. See note 1, infra. Standard of Review "To the extent the circuit court made factual findings based on oral testimony, those factual findings are entitled to deference by this Court under the ore tenus standard of review. Under that standard, '"we must accept as true the facts found by the trial court if there is substantial evidence to support the trial court's findings."' Allsopp v. 4Although described in the judgment as "pre-judgment interest," it appears that the award was actually post- settlement interest. 10 1160214 Bolding, 86 So. 3d 952, 959 (Ala. 2011) (quoting Beasley v. Mellon Fin. Servs. Corp., 569 So. 2d 389, 393 (Ala. 1990)). This standard is based on a recognition of the trial court's unique position of being able to evaluate the credibility of witnesses and to assign weight to their testimony. See, e.g., Justice v. Arab Lumber & Supply, Inc., 533 So. 2d 538, 543 (Ala. 1988). The deference owed a trial court under the ore tenus standard of review, however, does not extend to the trial court's decisions on questions of law. Appellate review of questions of law, as well as whether the trial court has properly applied that law to a given set of facts, is de novo. See, e.g., Ex parte Graham, 702 So. 2d 1215, 1221 (Ala. 1997)." Wehle II, 195 So. 3d at 934. Discussion I. The Daughters' Appeal The daughters contend that the circuit court erred in allowing the personal representatives to reimburse the estate based on the profit, if any, made on the premature compensation rather than awarding interest as this Court ordered in Wehle II. As the daughters note, in Wehle II, this Court concluded: "Section 43–2–509[, Ala. Code 1975,] provides that a personal representative who 'uses any of the funds of the estate for his own benefit ... is accountable for any profit made thereon or legal interest.' Our courts have long held that, pursuant to § 43–2–509 or its precursor, a personal representative must pay interest from the date he or she pays himself or herself compensation without 11 1160214 court approval to the date he or she obtains court approval for the compensation amount at issue. See, e.g., McCraw v. Cooper, 218 Ala. 186, 190, 118 So. 333, 337 (1928) (affirming an award of interest against a personal representative who had paid himself compensation without prior approval by the trial court, where the trial court eventually allowed the compensation, 'as to the reasonableness of which in amount there [was no dispute]'); see also, e.g., Walsh v. Walsh, 231 Ala. 305, 307–08, 164 So. 822, 824–25 (1935) ('[I]n the case of Kenan v. Graham, 135 Ala. 585, 33 So. 699 [(1903)], the court held that an executor is not entitled to anticipate his fees and use the money. If he does so, he is chargeable with interest for the time the money was thus appropriated to the date of settlement.'). The same legal principle has been applied to other fiduciaries who were required to obtain court approval before paying themselves compensation. See Gordon v. Brunson, 287 Ala. 535, 542–43, 253 So. 2d 183, 189 (1971) ('[T]rial court erred in charging only 4% simple interest on the wards' money wrongfully advanced by the guardian to himself [for his compensation], and should have calculated such interest at the rate of 6% per annum, compounded annually from date of the advance to the date of the decree....')." 195 So. 3d at 940–41. Elsewhere, we noted that the daughters' claim is based on § 43–2–509, Ala. Code 1975, which specifically provides that, "'[i]f any executor or administrator uses any of the funds of the estate for his own benefit, he is accountable for any profit made thereon or legal interest.'" Id. at 938. 12 1160214 Thus, as the parties have acknowledged and as discussed in this Court's opinion in Wehle II, the Code section under which the daughters were proceeding permits an interest-based award but also "provides an alternate method of calculation," namely the award of any profit accruing from the misappropriated funds. Authority cited by the daughters suggests that the election between an award of interest as opposed to the disgorgement of earned profit provided in § 43–2–509 is not within the discretion of the trial court but at the option of the aggrieved party. See Clark v. Knox, 70 Ala. 607, 618–19 (1881) ("For interest received, or profit derived, [the executor or administrator] is liable by the terms of the statute; and if he uses the funds, he is, in any event, liable for legal interest, because the use is, of itself, a conversion -- a breach of duty. When employed, the profits derived he is required to disclose, and the parties interested may elect to take either the profits or interest at the legal rate." (emphasis added)), and First Nat'l Bank v. Weaver, 225 Ala. 160, 162, 142 So. 420, 421 (1932) (same). See also Wehle II, 195 So. 3d at 947. 13 1160214 The daughters have, at all pertinent times, demanded an award of interest as recompense. In keeping with that demand, our mandate to the circuit court on remand in Wehle II was for that court to "award[] interest against the personal representatives." 195 So. 3d at 947 (emphasis added). See Wehle II, 195 So. 3d at 937 ("'"Under the doctrine of the 'law of the case,' whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case."'" (quoting other cases)).5 Our instruction left the circuit court no discretion, at this stage, "to choose ... between the two options provided by statute" nor did it permit the court to consider new evidence aimed at demonstrating the propriety of an alternate option. 5We are unpersuaded by the personal representatives' argument that our directive in Wehle II for an evidentiary hearing on remand renders the law-of-the-case doctrine inapplicable. See, generally, Bagley ex rel. Bagley v. Creekside Motors, Inc., 913 So. 2d 441 (Ala. 2005). In Wehle II, we rejected the circuit court's determination, as a matter of law, that the daughters were not entitled to the claimed interest award and remanded the matter merely for the daughters to establish the amount of the award to which our decision in Wehle II determined they were legally entitled. 195 So. 3d at 947. 14 1160214 See 195 So. 3d at 938 ("'"Under the law of the case doctrine, '[a] party cannot on a second appeal relitigate issues which were resolved by the Court in the first appeal or which would have been resolved had they been properly presented in the first appeal.'"'" (quoting other cases)). See also Ex parte Edwards, 727 So. 2d 792, 794 (Ala. 1998) (holding that, when an appellate court remands a case, the trial court's authority is limited to compliance with the directions provided by the appellate court). As set out above, the circuit court has not ruled on the amount of interest owed to the daughters. See Kyser v. Harrison, 908 So. 2d 914, 918 (Ala. 2005) ("'We cannot put a trial court in error for failure to rule on a matter which, according to the record, was not presented to, nor decided by him....'" (quoting Defore v. Bourjois, Inc., 268 Ala. 228, 230, 105 So. 2d 846, 848 (1958))). Therefore, despite our awareness of the long and tortured history of the present litigation, we nonetheless decline the daughters' request to simply render a judgment awarding interest in this matter. The circuit court's judgment on remand awarding profit instead of interest was inconsistent with this Court's mandate 15 1160214 in Wehle II.6 We have no alternative but to again remand this case for the circuit court to comply with this Court's remaining mandate in Wehle II, namely the entry of a judgment "awarding interest against the personal representatives." 195 So. 3d at 947. On remand, the trial court shall award interest on the compensation. II. The Personal Representatives' Cross-Appeal As mentioned above, the personal representatives filed a notice of cross-appeal in the circuit court. No filing fee was paid, and the notice was not transmitted to this Court. Instead, the existence of a notice of appeal was not recognized until the record on appeal was completed and sent to this Court. The clerk of this Court, noting that this Court had never received notice of the cross-appeal, that the personal representatives had designated their brief to this Court solely as the "Brief of the Appellees," and that they 6Because we are reversing in its entirety the portion of the circuit court's judgment awarding reimbursement in the form of profit made, we likewise reverse the accompanying award of "pre-judgment interest in the amount of six percent" on that judgment. See note 4, supra. 16 1160214 had failed to identify themselves as "cross-appellants,"7 issued a show-cause order directing the parties to brief the issue whether we should disregard the purported cross-appeal based on the personal representatives' failure to prosecute. In their response, the personal representatives acknowledge that their notice of appeal was due on December 23, 2016. See Rule 4(a)(2), Ala. R. App. P. ("If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days (two weeks) of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule ...."). According to the personal representatives, on December 22, 2016, they mailed their notice of appeal to the circuit clerk. However, "out of an abundance of caution," on December 23, 2016, they also hand-delivered a copy to the circuit clerk for filing. Neither submission, however, included a filing fee. Exhibits attached to the personal representatives' response reflect that the circuit clerk signed -- but did not 7The personal representatives' brief on appeal does, however, include argument on the issue raised by the purported cross-appeal, i.e., a challenge to the portion of the circuit court's award of litigation costs and fees. 17 1160214 stamp -- the notice as "filed" on December 23, 2016. The stamped date on the corresponding "Docketing Statement" is illegible. The case-action summary maintained by the circuit clerk reflects that the notice of appeal was "scann[ed]" on December 28, 2016, but "filed 12/23/2016." It is undisputed that the personal representatives never paid the corresponding filing fee until May 1, 2017 -- after the issue was raised by this Court's clerk. The personal representatives nonetheless maintain that the daughters are not prejudiced by allowing the cross-appeal to proceed because, they say, the daughters both had notice of, and responded to, the sole issue raised by the cross- appeal that was included in their brief in the daughters' appeal. They further argue, citing Schmieding Produce Co. v. Cagle, 529 So. 2d 243 (Ala. 1988), that their initial failure to pay the filing fee amounts to a nonjurisdictional defect that may be corrected and does not prevent appellate review. Under the present circumstances, we agree. As the parties note, in identical circumstances in Cagle, we observed: "As was noted previously, Cagle claims to have raised this issue by way of a cross-appeal. An 18 1160214 examination of the record, however, reveals that, although notice of this appeal was filed by Cagle in the trial court, this notice of appeal was not transmitted to this Court as prescribed in Rule 12, Ala. R. App. P., nor was the docket fee paid for the appeal. Therefore, although the appeal was taken at the time the notice of appeal was filed in the trial court (invoking this Court's jurisdiction pursuant to Rules 3(a)(1) and 4(a)(1), Ala. R. App. P.; see Finch v. Finch, 468 So. 2d 151 (Ala. 1985)), the appeal was never actually docketed in this Court. Accordingly, this cross-appeal is subject to dismissal under Rule 2(a)(2)(D), Ala. R. App. P., because the failure to pay the docket fee and to otherwise assure the docketing of the appeal constitutes a failure 'to comply substantially with these rules.' Id. "We choose, however, to overlook this non-jurisdictional defect and to treat the cross-appeal as though it were properly before us, even though it clearly is not. See Rule 2(b), Ala. R. App. P. Our decision to do so is based on the facts that the argument advanced on the cross-appeal is meritless and that no legitimate purpose could be served by further delaying our decision. Delay would be unavoidable, because dismissal pursuant to Rule 2(a)(2)(D) for failure to comply with the rules is not absolute, as is a dismissal for lack of jurisdiction. Instead, the Court must generally allow the defaulting party an opportunity to correct the defect. We cannot, however, justify in this case the waste of time and energy that would be necessitated by a strict application of this rule, when it is clear that the cross-appeal would have no merit were it properly before us. Accordingly, we will ignore the docketing requirements in this case and will consider the issue raised in the cross-appeal--whether the trial court properly directed a verdict foreclosing Cagle's claims of fraud and misrepresentation." 19 1160214 529 So. 2d at 249 (footnote omitted; emphasis added). Here, as in Cagle, the claim raised in the cross-appeal is meritless; in order to conserve judicial resources and bring this matter closer to a final resolution, we will, as in Cagle, treat the personal representatives' cross-appeal as though it were properly before us. The crux of the personal representatives' claim in their cross-appeal is that the circuit court's nearly $450,000 award of fees and costs allegedly failed to account for factors that, the personal representatives maintain, justified an "enhanced fee" in the amount of $641,083.50. (Personal representatives' brief, at p. 34.) Specifically, they contend that the circuit court's award compensated them solely for "actual billed and paid fees and costs incurred by [them]" but failed to consider the fact that the amounts expended had been paid over a 10-year span and other allegedly applicable factors identified by this Court in Van Schaack v. AmSouth Bank, N.A., 530 So. 2d 740 (Ala. 1988), and Peebles v. Miley, 439 So. 2d 137 (Ala. 1983), which, the personal representatives argue, support their enhanced-fee request. 20 1160214 As we observed in Wehle II, § 43–2–849, Ala. Code 1975, provides that the personal representatives are entitled "'to receive from the estate necessary expenses and disbursements, including, but not limited to, reasonable attorneys' fees incurred.'" 195 So. 3d at 943–44 (emphasis added). As set out in the circuit court's November 2, 2106, order, the daughters conceded that the personal representatives were due to be reimbursed in the amount of the fees they actually incurred, and the circuit court, as directed in Wehle II, evaluated and ultimately approved the reasonableness of the claimed fee by "tak[ing] into account all of the factors outlined by [this Court] in ... [Peebles] ... and Van Schaack." The personal representatives argue that the circuit court nonetheless erred in failing to "enhance" the award of fees and costs by adding interest because the amounts for which they were being reimbursed were expended over time. Notably, however, the personal representatives do not point to a factor from either Peebles or Van Schaack mandating the increased fee 21 1160214 amount they sought below.8 More importantly, they do not provide caselaw supporting their contention that interest may be added to an award of fees and costs pursuant to § 43–2–849. Instead, they cite Nelson v. AmSouth Bank, N.A., 622 So. 2d 894 (Ala. 1993), in which the trial court erred in failing to award interest in connection with its entry of a summary judgment for the plaintiff on her claims seeking to recover half of the proceeds of a bank account in which she owned a joint interest, as well as interest, costs, and attorney fees, as prayed for in the complaint. 622 So. 2d at 897. That case appears distinguishable in that it did not involve an award pursuant to § 43–2–849. In addition, the personal representatives' reliance on § 8-8-10, Ala. Code 1975, is similarly misplaced because that Code section, by its explicit terms, applies to "[j]udgments for the payment of money, other than costs, if based upon a contract action." (Emphasis added.) Section § 8-8-1, Ala. Code 1975, is likewise inapposite because it establishes "the maximum rate of interest upon the loan or forbearance of money, goods, or 8We note that neither of the fee awards at issue in either Peebles or Van Schaack appear to have included a calculation for interest. 439 So. 2d at 143-44, 530 So. 2d at 750. 22 1160214 things in action except by written contract." In any event, the personal representatives' argument suggesting that they are entitled to the interest claimed is not persuasive. We remanded in Wehle II to permit the circuit court to conduct a hearing and to receive evidence substantiating the $383,437.31 in fees and costs the personal representatives claimed. 195 So. 3d at 946. Because the personal representatives have failed to demonstrate that the circuit court erred in awarding only the fees the personal representatives demonstrated that they actually incurred, we hereby affirm that portion of the circuit court's judgment. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. Stuart, C.J., and Bolin, Parker, Murdock, Main, Wise, Bryan, and Sellers, JJ., concur. 23

December 22, 2017

99e22c4b-0148-451c-b21b-1b03072c00d4

Wyatt v. BellSouth, Inc.

757 So. 2d 403

1980927

Alabama

Alabama Supreme Court

757 So. 2d 403 (2000) Donovan WYATT v. BELLSOUTH, INC., et al. 1980927. Supreme Court of Alabama. January 21, 2000. David L. Yewell of Kamuf, Yewell, Pace & Condon, Owensboro, Kentucky; and Griffin Sikes, Jr., Montgomery, for appellant. Walter R. Byars of Steiner-Crum, Byars & Main, P.C., Montgomery; Jeffrey E. Holmes of Lange, Simpson, Robinson & Somerville, Birmingham; and Robert E. Thomas of BellSouth Telecommunications, Inc., Atlanta, Georgia, for appellees. LYONS, Justice. The United States District Court for the Middle District of Alabama has certified to this Court the following questions, pursuant to Rule 18, Ala. R.App. P.: The district court described the facts as follows: We have accepted, without independent analysis, the district court's conclusion, evident from the phrasing of the issue, that the conduct of BSC described in the fore-going factual background does not in any way alter the fundamental nature of Wyatt's at-will employment status.[1]*406 Moreover, we have also accepted without further analysis the district court's conclusion that the elements of promissory estoppel can be proven based on the statement of facts. Consequently, to answer this question, we assume 1) that the plaintiff Wyatt will prevail on his allegation that BSC promised it would investigate any complaints against him, would listen to both sides of the story, and would view with skepticism any criticism of his performance; 2) that BSC is precluded by the doctrine of promissory estoppel from denying such promises were made; and 3) that, even with the first two assumptions, Wyatt will not be able to show that his subsequent discharge was wrongful, because of the rule that an employee's contract for at-will employment may be terminated by either party with or without cause or justification. Hoffman-La Roche, Inc., v. Campbell, 512 So. 2d 725, 728 (Ala.1987). In this posture, Wyatt's position is analogous to that of a plaintiff who claims the defendant denied him a due-process hearing, but who would not have prevailed even had he been allowed a hearing. See Hessel v. O'Hearn, 977 F.2d 299, 302 (7th Cir.1992) (in an action under 42 U.S.C. § 1983, if the plaintiff's right to a hearing has been denied, but at a hearing the plaintiff would not have won, then the plaintiff must prove some emotional harm or other specific injury in order to recover more than nominal damages). We will consider the extent to which lost wages can form a component of damages under the facts stated by the district court, assuming the plaintiff prevails on his promissory-estoppel theory. While Alabama has accepted the doctrine of promissory estoppel, as it is stated in Restatement (First) of Contracts § 90 (1932), see Dixieland Food Stores, Inc. v. Geddert, 505 So. 2d 371 (Ala.1987), this Court has not had occasion to determine the scope of the damages recoverable under this doctrine. We are impressed with the analysis in Remes v. Nordic Group, Inc., 169 Vt. 37, 40-41, 726 A.2d 77, 79-80 (1999), where the Supreme Court of Vermont stated: If BSC had performed in accordance with the promises made to Wyatt, then BSC would have made a full investigation; it would have heard both sides of the story; and it would have looked at the allegations against Wyatt with skepticism. However, BSC could have terminated Wyatt at the end of its investigation, for any reason whatever. Under these circumstances, we exercise our discretion by restricting Wyatt's recoverable damages to compensation for those losses that directly derive from the breach of BSC's promises, not to include losses that stem from the termination of his employment. In Curacare Inc. v. Pollack, 501 So. 2d 470 (Ala. Civ.App.1986), the employment relationship between the parties was governed by a written contract that expressly stated that termination of the relationship by either party was to be accompanied by two weeks' written notice. The employee was terminated before the end of the contract term, without written notice. He sued. Id. at 471. A jury returned a verdict in favor of the employee, awarding him $8,500 in damages, which was well in excess of the $562.50 in salary he would have earned during the two weeks for which he was entitled to notice. The employer appealed. Id. The Court of Civil Appeals held that the remedy for the employer's breach of the contract was to put the employee in the position he would have occupied absent the breach. Id. at 472. The court held: Id. at 472. Just as the plaintiff in Curacare was entitled to lost wages and benefits only for the two-week notice period, Wyatt is entitled to receive only the lost wages and benefits he would have received for the time it would reasonably have taken BSC to conduct the investigation it should have conducted. The doctrine of promissory estoppel should not be used as a basis for awarding damages that would not, under general principles of contract law, be recoverable in an action for breach of contract. Otherwise, the plaintiff in an action founded on promissory estoppel would be in a better position than if he had been entitled to recover in an action on a contract. See Deli v. University of Minnesota, 578 N.W.2d 779, 783 (Minn.Ct.App. 1998) ("Because promissory estoppel is a contract-based claim, to recover emotional distress damages, Deli was required to plead and prove the existence of an independent tort."). Our law also requires that the plaintiff prove an independent tort in order to recover damages for mental anguish in an employment setting. In Hobson v. American Cast Iron Pipe Co., 690 So. 2d 341 (Ala.1997), we stated: "This Court has not recognized claims for emotional distress in an employment case. In fact, it has stated: `[N]o recovery has ever been allowed for mental distress arising from the wrongful discharge of an employee in breach of an employment contract.'" Id. at 344, citing Southern Medical Health Systems, Inc., v. Vaughn, 669 So. 2d 98 (Ala.1995). Surely, as an employee at will, Wyatt cannot recover compensatory damages for mental anguish when employees whose employment was not at will could not have recovered CERTIFIED QUESTIONS ANSWERED. HOOPER, C.J., and MADDOX, COOK, SEE, BROWN, and ENGLAND, JJ., concur. HOUSTON and JOHNSTONE, JJ., concur in part and dissent in part. HOUSTON, Justice (concurring as to the answer to the second question and dissenting as to the answer to the first question). The answer to the first question is limited by the designation of Wyatt as "a terminated at-will employee," because this precludes a consideration of the promissory-estoppel claim as altering his "at-will" status. Even so, if Wyatt proves to a jury's reasonable satisfaction that if Bell-South had honored its promises, then, more likely than not, it would not have discharged him and he would have remained in BellSouth's employ, I would permit Wyatt to offer evidence of lost wages as an element of his recoverable loss sustained as a result of BellSouth's alleged perfidy, and, if a jury agrees with him, to collect those wages as damages. Thus, I dissent from the answer given to the district court's first question. However, I concur in the answer given to the second question. JOHNSTONE, J., concurs. [1] Justice Houston's dissent directed to our answer to the first question would strike through that portion of the question containing the premise that Wyatt's at-will status would not be altered even if he prevailed on the promissory-estoppel claim. We have answered the question as it is phrased and express no opinion as to the validity of its premise.

January 21, 2000

2a058fab-b2dc-4307-b2b5-8d6a5bcfaf3f

Chain Store Construction, Inc. v. Doris Swader

N/A

1160499

Alabama

Alabama Supreme Court

I N T H E S U P R E M E C O U R T O F A L A B A M A December 15, 2017 1160499 Chain Store Construction, Inc. v. Doris Swader (Appeal from DeKalb Circuit Court: CV-12-900091). CERTIFICATE OF JUDGMENT WHEREAS, the ruling on the application for rehearing filed in this case and indicated below was entered in this cause on December 15, 2017: Application Overruled. No Opinion. Main, J. - Stuart, C.J., and Bolin, Parker, Shaw, Wise, Bryan, and Sellers, JJ., concur. Murdock, J., dissents. WHEREAS, the appeal in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below was entered in this cause on October 20, 2017: Affirmed. No Opinion. Main, J. - Stuart, C.J., and Bolin, Parker, Shaw, Wise, Bryan, and Sellers, JJ., concur. Murdock, J., dissents. NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala. R. App. P. I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said Court. Witness my hand this 15th day of December, 2017. Clerk, Supreme Court of Alabama

December 15, 2017

7480ebf3-1104-4436-84bf-55e6ff4e1ed2

Slamen v. Slamen

N/A

1160758

Alabama

Alabama Supreme Court

REL: December 22,2017 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2017-2018 ____________________ 1160758 ____________________ Darlene Slamen et al. v. Herbert A. Slamen Appeal from Jefferson Circuit Court (CV-16-904003) STUART, Chief Justice. Darlene Slamen ("Darlene"), Charles Martin ("Charles"), Wilhelmina Martin ("Wilhelmina"), and Harris Partnership, LLP ("Harris LLP") (hereinafter collectively referred to as "the defendants"), appeal from an order of the Jefferson Circuit 1160758 Court requiring them to respond to discovery requests propounded upon them by Herbert A. Slamen ("Herbert"), arguing that all discovery should be stayed while the parties arbitrate their dispute pursuant to an arbitration provision in the partnership agreement that created Harris LLP, and that was executed by Herbert, Darlene, Charles, and Wilhelmina. Insofar as the defendants' appeal challenges the trial court's management of discovery, we treat it as a petition for the writ of mandamus, and we grant the petition and issue the writ. I. The facts giving rise to the underlying dispute in this case were previously set forth by this Court in Slamen v. Slamen, [Ms. 1160578, September 22, 2017] ___ So. 3d ___, ___ (Ala. 2017) ("Slamen I"): "Herbert and Darlene married in 1981 and later formed Harris LLP, of which Herbert, Darlene, Charles, and Wilhelmina each own a 25% share. In 2008, Herbert was diagnosed with chronic obstructive pulmonary disease, and, in 2010, he moved to Thailand because, Darlene said, he wanted 'to enjoy what remained of his life.' After moving to Thailand, Herbert was dependent upon Darlene to send him the proceeds generated from his assets so that he could pay for living expenses and medical treatment. Payments in an agreed amount were deposited in a checking account in Thailand set up 2 1160758 in Herbert's name. In addition to his interest in Harris LLP, Herbert's assets include a house in Alabama, a house in Florida, and an interest in the dental practice from which Herbert had retired. In 2013, Herbert, via his attorney in fact, established the Herbert A. Slamen Revocable Living Trust ('the trust') to facilitate the management of his assets, and he thereafter transferred his assets, including his interest in Harris LLP, to the trust. Herbert was the beneficiary of the trust, and both he and Darlene were the appointed cotrustees. "On October 27, 2016, Herbert sued the defendants, alleging that he had revoked the trust but that Darlene, purportedly under her authority as cotrustee, had nevertheless transferred the assets of the trust to herself. As a result, Herbert alleged, the defendants had 'failed to distribute proceeds from [Harris LLP] to [Herbert] and instead made all payments directly to Darlene.' Herbert also alleged that Darlene had sold the Alabama and Florida houses and that she had 'benefitted financially' from the operation of the dental practice, but, the allegation continued, Herbert had 'realized no proceeds' from those assets. According to Herbert, Darlene's allegedly unauthorized transfer of his assets to herself and her alleged refusal to send him the proceeds generated from his assets were part of 'an illicit scheme to gather all of [his] assets for herself.' Given those allegations, Herbert asserted claims of breach of a fiduciary duty, negligence, fraud, conversion, conspiracy, intentional infliction of emotional distress, identity theft, and tortious interference with a business relationship. As relief, Herbert sought compensatory and punitive damages and, for the breach-of-a-fiduciary-duty claim, specifically sought 'damages in an amount equal to the proceeds properly due from [his] business interests.'" 3 1160758 When the defendants were served with Herbert's complaint, they were simultaneously served with several discovery requests. The defendants thereafter moved the trial court to dismiss Herbert's complaint and to stay discovery until their motion to dismiss was ruled on. On March 21, 2017, the trial court denied both the defendants' requests but granted Herbert's request for a preliminary injunction enjoining the defendants from spending any funds belonging to Harris LLP except those funds required to pay ordinary business expenses. The defendants thereafter filed both a petition for the writ of mandamus seeking review of the trial court's denial of their motion to dismiss and an appeal asking this Court to reverse the trial court's entry of a preliminary injunction against them. Although this Court ultimately denied their petition for a writ of mandamus by order (no. 1160558, April 20, 2017), in Slamen I we granted the defendants the appellate relief they sought and directed the trial court to dissolve the preliminary injunction entered against them. ___ So. 3d at ___. On April 26, 2017, the defendants moved the trial court to compel arbitration of this dispute based on the following 4 1160758 arbitration provision in the partnership agreement that created Harris LLP: "The parties agree that any dispute arising from this partnership agreement, or the conduct of [Harris LLP's] business, shall be resolved in the following manner: ".... "[T]he dispute shall be resolved by binding arbitration before a mutually acceptable arbitrator pursuant to the commercial arbitration rules of the American Arbitration Association using one arbitrator. Such arbitration shall be conducted in Jefferson County, Alabama. Each partner shall initially pay an equal share of the arbitrator's fee. However, in his award, the arbitrator shall have the power to assess all or a part of his fee to any partner as may be just and equitable, such as for having acted unreasonably." At a hearing that had previously been scheduled for the next day to consider matters related to discovery and the then still operative preliminary injunction, Herbert opposed the motion to compel arbitration, arguing (1) that the defendants had waived their right to enforce the arbitration provision and (2) that some of his claims were outside the scope of the arbitration provision. At the conclusion of the hearing, the trial court ordered Herbert to file a formal response to the defendants' motion to compel arbitration and ordered the 5 1160758 defendants to respond to Herbert's outstanding discovery requests within 30 days.1 Herbert subsequently filed the ordered response, in which he asserted the same arguments made at the April 27 hearing; the defendants, however, did not respond to Herbert's discovery requests, instead moving the trial court on May 16, 2017, to stay all discovery until it ruled on their motion to compel arbitration. On May 25, 2017, the trial court denied the defendants' request for a stay and reiterated its previous order that the defendants' discovery responses were due by May 27, 2017. On May 26, 2017, the defendants filed a notice of appeal to this Court challenging 1During the course of the hearing, the trial court expressed a desire to resolve this case in an expeditious manner based on Herbert's deteriorating health. On December 8, 2017, a suggestion of death was in fact filed with this Court indicating that Herbert had passed away in Thailand on November 1, 2017. No order of substitution has apparently been entered; however, pursuant to Rule 43(a), Ala. R. App. P., this Court may nevertheless proceed to resolve the issues raised in this appeal. See Woodruff v. Gazebo East Apartments, 181 So. 3d 1076, 1080 (Ala. Civ. App. 2015) ("Rule 43(a), Ala. R. App. P., states that an appeal 'shall not abate' upon the suggestion of the death of a party. See Cox v. Dodd, 242 Ala. 37, 39, 4 So. 2d 736, 737 (1941) ('It is a further general rule that the death of a party, pending an appeal ..., furnishes no grounds for the abatement of the suit. In such case it is the common practice for the appellate court to affirm or reverse the judgment nunc pro tunc.'). Instead, this court is to dispose of the appeal as it may direct. Rule 43(a)."). 6 1160758 the trial court's refusal to stay discovery until the arbitration issue was resolved. Subsequently, on May 30, 2017, the defendants also filed a petition for the writ of mandamus with this Court seeking the same relief as the May 26 appeal (no. 1160763). In that petition, the defendants asserted that the trial court had effectively denied their motion to compel arbitration by ordering them to continue with discovery and that they were accordingly entitled to an immediate appeal pursuant to Rule 4(d), Ala. R. App. P.2 Nevertheless, the defendants explained, they were filing a petition for the writ of mandamus out of an abundance of caution in case this Court concluded that a direct appeal was improper and that mandamus was the proper avenue for them to obtain the desired relief. The defendants simultaneously filed an "emergency motion for a stay of trial proceedings pending appeal or mandamus review," which this Court granted that same day. On June 19, 2In support of this argument, the defendants cited FMR Corp. v. Howard, 227 So. 2d 444 (Ala. 2017), in which this Court held that a party was entitled to appellate review of a trial court's order that temporarily declined to compel arbitration, but acknowledged that arbitration might yet be compelled at a later date, because the order effectively and substantively denied the motion to compel arbitration. 7 1160758 2017, this Court denied the defendants' petition for the writ of mandamus without an opinion. II. In determining the proper standard of review to apply in this case, we must first determine whether the underlying issue –– whether a trial court may order discovery not related to the issue of arbitration before ruling on a pending motion to compel arbitration –– is an issue this Court should review by way of an appeal or a petition for a writ of mandamus. At the time the defendants first sought review of the May 25 order of the trial court, there was some uncertainty regarding the proper avenue by which to get this issue before an appellate court; the defendants accordingly filed both an appeal and a petition for the writ of mandamus to make sure their arguments were ultimately heard. Since that time (and after this Court denied the defendants' petition for a writ of mandamus), however, this Court released its opinion in Ex parte Locklear Chrysler Jeep Dodge, LLC, [Ms. 1160372, September 29, 2017] ___ So. 3d ___ (Ala. 2017), in which we were also asked to review a trial court's order compelling a defendant to respond to discovery requests while the 8 1160758 defendant's motion to compel arbitration was pending. We emphasized in that opinion that "this Court is not reviewing a trial court's order denying a motion to compel arbitration; the trial court has not yet ruled on [the defendant's] motion to compel. It is the trial court's general discovery orders that are being challenged." ___ So. 3d at ___ (emphasis added). Inasmuch as the defendant in Ex parte Locklear had filed a petition for the writ of mandamus, and because it is well settled that such a petition is the proper avenue to seek review of a trial court's handling of discovery matters, see, e.g., Ex parte Dangerfield, 49 So. 3d 675, 684 (Ala. 2010), this Court applied the standard of review for mandamus relief to the defendant's arguments. Ex parte Locklear, ___ So. 3d at ___. We do the same here and treat the instant appeal as a petition for a writ of mandamus.3 Accordingly, the following standard of review applies: 3In their brief to this Court, the defendants urge us, in the event that we ultimately determine that the underlying issue should be reviewed on mandamus as opposed to on appeal, to either reinstate their previously denied petition for the writ of mandamus or to now treat the instant appeal as a petition for the writ of mandamus. For expedience, we do the latter. See, generally, F.L. Crane & Sons, Inc. v. Malouf Constr. Corp., 953 So. 2d 366, 372 (Ala. 2006) (explaining this Court's inherent authority to treat an appeal as a petition for a writ of mandamus when the circumstances warrant). 9 1160758 "Mandamus is an extraordinary remedy and will be granted only where 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 Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991). This Court will not issue the writ of mandamus where the petitioner has "'full and adequate relief'" by appeal. State v. Cobb, 288 Ala. 675, 678, 264 So. 2d 523, 526 (1972) (quoting State v. Williams, 69 Ala. 311, 316 (1881)). "Discovery matters are within the trial court's sound discretion, and this Court will not reverse a trial court's ruling on a discovery issue unless the trial court has clearly exceeded its discretion. Home Ins. Co. v. Rice, 585 So. 2d 859, 862 (Ala. 1991). Accordingly, mandamus will issue to reverse a trial court's ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions." Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003). III. The defendants essentially argue that the trial court exceeded its discretion by requiring them to respond to Herbert's discovery requests while their motion to compel 10 1160758 arbitration was pending. In Ex parte Locklear, we resolved a similar argument as follows: "[The defendant] argues that, although discovery may be allowed while a motion to compel arbitration is pending, that discovery is limited to whether the parties to the arbitration agreement must arbitrate their claims. [The defendant] argues that the trial court exceeded its discretion in allowing general discovery regarding the merits of the purchasers' claims. [The defendant] argues that permitting general discovery to proceed in a case that may be subject to arbitration could frustrate one of the purposes underlying arbitration, namely, the inexpensive and expedient resolution of disputes. ".... "We note that, in the instant case, this Court is not reviewing a trial court's order denying a motion to compel arbitration; the trial court has not yet ruled on [the defendant's] motion to compel. It is the trial court's general discovery orders that are being challenged. Here, as in [Ex parte] Kenworth [of Birmingham, Inc., 789 So. 2d 227 (Ala. 2000)], the trial court exceeded its discretion by allowing general discovery before the resolution of the issue whether the purchasers must arbitrate their claims. In Ex parte Jim Burke Automotive, Inc., 776 So. 2d 118 (Ala. 2000), this Court explained that, although it was not error for the trial court to allow the parties to conduct discovery prior to arbitration, it was error not to limit the discovery to the question whether the plaintiff agreed to arbitrate his claims and that such limited discovery did not constitute a waiver of the right to arbitrate. Here, the purchasers have not requested discovery on an issue related to the arbitration agreement; instead, they sought general discovery regarding the merits of their claims. In granting the purchasers' requests for 11 1160758 general discovery before the resolution of [the defendant's] arbitration motions, the trial court exceeded its discretion. Furthermore, because it would be unfair to require [the defendant to] conduct merit-based discovery prior to deciding the arbitration issue, and because [the defendant] could not be afforded the relief it seeks after that discovery has been conducted, [the defendant] does not have an adequate remedy by ordinary appeal. Accordingly, we grant the petitions and issue the writs, directing the trial court to vacate its orders requiring [the defendant] to respond to the purchasers' discovery requests, including the requests for admissions and to sit for depositions." ___ So. 3d at ___. Thus, Ex parte Locklear establishes that a trial court exceeds its discretion when it orders a party to participate in merit-based discovery when that party is awaiting a ruling on its motion to compel arbitration. Herbert nevertheless argues that the trial court has committed no error because the defendants' motion to compel arbitration is, he alleges, ultimately due to be denied either on waiver grounds or because the identified arbitration provision does not encompass some of the claims he has asserted.4 However, the 4The defendants argue that Herbert's arguments in this regard are without merit and that, in any event, it would be improper for a court of law to consider them inasmuch as the arbitration provision in this case incorporates the commercial arbitration rules of the American Arbitration Association, which provide that an arbitrator, not a trial court, should resolve issues of arbitrability. See, e.g., Managed Health 12 1160758 merit of these arguments is ultimately immaterial at the present time inasmuch as "this Court is not reviewing a trial court's order denying a motion to compel arbitration." Ex parte Locklear, ___ So. 3d at ___. We are presently concerned only with the trial court's failure to stay discovery while a motion to compel arbitration is pending. Ex parte Locklear makes clear that a motion to compel arbitration must be resolved before merit-based discovery such as Herbert is seeking is conducted, and the defendants are accordingly entitled to the relief they seek. IV. The defendants appeal the order of the trial court requiring them to respond to Herbert's discovery requests even though they had previously filed a motion to compel arbitration, which remained pending at the time of the trial court's discovery order. For the reasons explained above, the Care Admin., Inc. v. Blue Cross & Blue Shield of Alabama, [Ms. 1151099, September 1, 2017] ___ So. 3d ___, ___ (Ala. 2017) (considering a similar arbitration provision incorporating the commercial arbitration rules of the American Arbitration Association and concluding "whether [the appellant] waived its right to arbitration [is an] issue[] for the arbitrator, not the circuit court" and "it is for the arbitrator, not the courts, to determine whether the claims asserted by the parties are within the scope of the [relevant arbitration provision]"). 13 1160758 trial court exceeded its discretion in ordering the defendants to participate in merit-based discovery before the arbitration issue was resolved; accordingly, treating the appeal as a petition for the writ of mandamus, we grant the petition and issue a writ directing the trial court to vacate its order requiring the defendants to respond to Herbert's discovery requests. PETITION GRANTED; WRIT ISSUED. Bolin, Parker, Shaw, Main, Wise, Bryan, and Sellers, JJ., concur. Murdock, J., concurs in the result. 14

December 22, 2017

960f81fe-8883-4424-8899-1413f268176d

Ex Parte Conaway

767 So. 2d 1117

1971902

Alabama

Alabama Supreme Court

767 So. 2d 1117 (2000) Ex parte Fred CONAWAY and Mattie Conaway. (Re Fred Conaway and Mattie Conaway v. Minnie Norris Nickles, a/k/a Minnie Norris; Harmon O. Wilson; and Belview Real Estate Company, Inc.) 1971902. Supreme Court of Alabama. January 7, 2000. Rehearing Denied February 18, 2000. *1118 Fred Conaway, petitioner, pro se. Submitted on petitioner's brief only. PER CURIAM. Fred Conaway and Mattie Conaway sued Minnie Norris Nickles, Harmon O. Wilson, and Belview Real Estate Company ("Belview") for specific performance of a real-estate sales contract. The trial court entered a summary judgment for the defendants, on the basis that the contract was void for lack of mutual assent. The Conaways appealed. This Court transferred the appeal to the Court of Civil Appeals, pursuant to § 12-2-7(6), Ala. Code 1975. The Court of Civil Appeals affirmed the summary judgment, without an opinion, but with a written dissent. Conaway v. Nickles, 767 So. 2d 1116 (Ala. Civ.App.1998). We granted certiorari review. We reverse and remand. Nickles owned a house located at 4850 Johns Road in Bessemer. She contracted with Belview and its agent, Wilson, to sell that house. The Conaways decided to buy it. They, along with Nickles and Belview, through its agent Wilson, signed a standard-form contract, captioned "General Residential Sales Contract," to which the following provisions had been added: A dispute later arose over the approximately $7,000 earmarked for repairs. As a result of the dispute, Wilson refused to close the sale. The Conaways sued for specific performance of the contract. In entering the summary judgment for the defendants, the court wrote: In its no-opinion memorandum affirmance, the Court of Civil Appeals cited City of Montgomery v. Maull, 344 So. 2d 492 (Ala.1977). Judge Crawley, dissenting from the affirmance, stated that although the contract was ambiguous, it should not be held void for ambiguity or lack of mutual assent. He wrote: 767 So. 2d at 1117 (Crawley, J., dissenting). We agree with Judge Crawley. An ambiguity in a contract does not automatically make the contract void. Once the trial court determines that a contract is ambiguous, it is for the jury to determine the true meaning of the contract. Decker v. Marshall-DeKalb Elec. Coop., 659 So. 2d 926 (Ala.1995); Rivers v. Oakwood College, 442 So. 2d 74, 76 (Ala.1983). This Court has stated: McDonald v. U.S. Die Casting & Dev. Co., 585 So. 2d 853, 855 (Ala.1991). (Quoted with approval in Reeves Cedarhurst Dev. Corp. v. First Amfed Corp., 607 So. 2d 184, 186 (Ala.1992)). Because the terms of the contract were not so ambiguous that "construction becomes futile" (Heyman Cohen & Sons, cited in Judge Crawley's dissent, supra), the trial judge should not have entered a summary judgment in favor of the defendants. The judgment of the Court of Civil Appeals is reversed, and this cause is remanded. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. LYONS, J., concurs specially. LYONS, Justice (concurring specially). The language presenting the ambiguity does not present a hopeless indefiniteness leading to the futility of construction that Justice Cardozo condemned in Heyman Cohen & Sons, Inc. v. M. Lurie Woolen Co., 232 N.Y. 112, 133 N.E. 370 (1921) (cited by Judge Crawley in his dissent). The Conaways contend that the provision stating that the seller is not required to make repairs means that the seller has no responsibility for overseeing performance of any contract for repairs. This construction is not unreasonable. Thus, this case presents a jury question.

January 7, 2000

0dd0a4ab-741f-45bd-8ce0-d1665fa86614

Wright v. Cleburne County Hospital Board, Inc.

N/A

1151317

Alabama

Alabama Supreme Court

REL: 12/29/2017 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2017-2018 ____________________ 1151317 ____________________ Clifford Goodman Wright, administrator of the Estate of Mary Evelyn Wright, deceased v. Cleburne County Hospital Board, Inc., d/b/a Cleburne County Nursing Home, et al. Appeal from Cleburne Circuit Court (CV-13-900053) MURDOCK, Justice. Pursuant to Rule 5, Ala. R. App. P., this Court granted Clifford Goodman Wright ("Wright"), the administrator of the estate of Mary Evelyn Wright, deceased, permission to appeal 1151317 from an interlocutory order of the Cleburne Circuit Court ("the trial court"). In that order, the trial court ruled that the $100,000 cap on damages set out in § 11-93-2, Ala. Code 1975, applied to Wright's claims against three nurses -- Dawn Reid, Phyllis Harris, and Tuwanda Worrills (hereinafter referred to collectively as "the nurses") -- who were employees of the Cleburne County Hospital Board, Inc., d/b/a Cleburne County Nursing Home ("the Hospital Board"), at the times relevant to Wright's action. Section 11-93-2 governs "[t]he recovery of damages under any judgment against a [county or municipal] governmental entity." Because Wright sued the nurses seeking money damages in their individual capacities, the trial court erred in applying § 11-93-2 to Wright's claims. Accordingly, we reverse the trial court's judgment and remand the case. Facts and Procedural History In October 2013, Mary Evelyn Wright ("Mary") commenced a personal-injury action against "Cleburne County Hospital and Nursing Home, Inc." Mary asserted in her complaint that she had suffered injuries from a fall while she was a resident of a nursing home allegedly operated by the defendant ("the 2 1151317 nursing home"). Mary died, allegedly from her injuries, the day after the complaint was filed. Wright was appointed the administrator of Mary's estate and was substituted as the plaintiff. In response to the complaint, the Hospital Board filed an answer indicating that it operated the nursing home where the incident occurred and that it was the proper defendant in the action. Thereafter, Wright amended the complaint to correctly identify the Hospital Board as the defendant. Wright also amended the complaint to add the nurses as defendants and to assert wrongful-death claims against the nurses and the Hospital Board. In the amended complaint, Wright alleged that the nurses provided health-care services to Mary while she was a resident of the nursing home, that the nurses negligently breached the applicable standard of care, and that those breaches proximately caused Mary's injuries and subsequent death. Specifically, Wright alleged that the nurses breached the standard of care by: "(a) Negligently failing to provide adequate supervision to the nursing staff to aid Mary Evelyn Wright with ambulation when out of bed to prevent falls; 3 1151317 "(b) Negligently failing to provide appropriate nursing care in accordance with the [Hospital Board's] policy and procedure manual, the rules of the Alabama State Board of Health for facility, and the regulations of the U.S. Department of Health and Human Services, on care plans, fall risk assessments, and safety measures to prevent falls; "(c) [F]ail[ing] to provide, assure, modify, and publish to nursing personnel nursing care plan revisions and modifications following the quarterly nursing review on 10/2/13 and the Interdisciplinary Care Plan Team meeting on 10/2/13 as the needs of Mary Evelyn Wright changed; "(d) Negligently failing to implement and assure an adequate nursing care plan for Mary Evelyn Wright was followed by nursing personnel; "(e) Negligently failing to add nursing interventions to protect Mary Evelyn Wright from falling since she had previously fallen in the facility on 9/28/13; "(f) Negligently failing to properly assess Mary Evelyn Wright for the risk of falling; "(g) Negligently failing to provide adequate safety measures to protect Mary Evelyn Wright from falling; "(h) Negligently failing to provide appropriate assistance with ambulation and toileting; "(i) Negligently failing to provide care, treatment, assessments and medication in accordance with the physicians' orders and standard nursing practice; "(j) Negligently failing to maintain medical records which contained sufficient information to justify the diagnosis and treatment and to document 4 1151317 the results, including documented evidence of assessments of the needs of Mary Evelyn Wright and establish appropriate plans of care, services, and treatment; "(k) Negligently failing to appropriately monitor Mary Evelyn Wright and recognize signs and symptoms of a change in her health condition; "(l) Negligently failing to properly notify the family of Mary Evelyn Wright of a change in her health condition; [and] "(m) Negligently failing to notify the attending physician of Mary Evelyn Wright of a change in her health condition." Wright sued the nurses in their individual capacities. Wright also alleged that the nurses, at all relevant times, "were acting within the line and scope of their employment as the agent[s], servant[s], and/or employee[s] of [the Hospital Board]" and therefore that the Hospital Board was vicariously liable for the nurses' alleged acts and omissions. The Hospital Board and the nurses sought an order from the trial court declaring that Wright's claims are subject to the damages cap of § 11-93-2, Ala. Code 1975, which provides: "The recovery of damages under any judgment against a governmental entity shall be limited to $100,000.00 for bodily injury or death for one person in any single occurrence. Recovery of damages under any judgment or judgments against a governmental entity shall be limited to $300,000.00 in the aggregate where more than two persons have 5 1151317 claims or judgments on account of bodily injury or death arising out of any single occurrence. Recovery of damages under any judgment against a governmental entity shall be limited to $100,000.00 for damage or loss of property arising out of any single occurrence. No governmental entity shall settle or compromise any claim for bodily injury, death or property damage in excess of the amounts hereinabove set forth." Thereafter, the trial court entered an order stating that "[t]he provisions of Ala. Code [1975,] § 11-93-2[,] shall apply to ... all claims asserted against the [nurses] in the line and scope of their employment" and that "[a]ny judgment rendered against any of the [d]efendants will be subject to the provisions of Ala. Code [1975,] § 11-93-2." We granted Wright's request for permission to appeal from that order as to the individual-capacity claims against the nurses. Analysis As this Court stated in Morrow v. Caldwell, 153 So. 3d 764, 767 (Ala. 2014), an appeal under Rule 5, Ala. R. App. P., "presents a pure question of law. This Court has held: '"'[O]n appeal, the ruling on a question of law carries no presumption of correctness, and this Court's review is de novo.'" Rogers Found. Repair, Inc. v. Powell, 748 So. 2d 869, 871 (Ala. 1999) (quoting Ex parte Graham, 702 So. 2d 1215, 1221 (Ala. 1997)).' City of Prattville v. Corley, 892 So. 2d 845, 847 (Ala. 2003)." 6 1151317 Invoking Rule 5(a), Ala. R. App. P., the trial court submitted four questions of law for this Court's consideration: "1. Has the ruling in Ravi v. Coates, 662 So. 2d 218 (Ala. 1995), that claims against governmental entity employees are not subject to the § 11-93-2 cap been overturned by the ruling in Smitherman v. Marshall County Commission, 746 So. 2d 1001 (Ala. 1999)? "2. With respect to the cap, are the terms 'line and scope of employment' synonymous with 'official capacity'? "3. Can governmental entity non-elected employees working within the line and scope of their employment be sued in their individual capacity as well as in their official capacity? "4. Are nurses employed by a 'governmental entity' hospital protected by the § 11-93-2 cap in their individual capacities when their actions or omissions occurred while they were working within the line and scope of their employment?" Questions 1 and 4 are answered by our holdings and analysis in the case of Ravi v. Coates, 662 So. 2d 218 (Ala. 1995), about which the trial court inquires in question 1, and our more recent decisions in Suttles v. Roy, 75 So. 3d 90, 98 (Ala. 2010), Morrow v. Caldwell, 153 So. 3d 764 (Ala. 2014), and Alabama Municipal Insurance Corp. v. Allen, 164 So. 3d 568, 574 (Ala. 2014). A response to questions 2 and 3 7 1151317 requires but an acknowledgment of basic principles of agency and employment law that serve as the well established framework for our discussions in these and countless other public-employee cases. We begin with a brief acknowledgment of those principles, before more specifically discussing how the referenced cases address the issues raised in questions 1 and 4. It is axiomatic that an employee acting in the line and scope of his employment may, in the course of doing so, violate a duty owed by the employee individually to a specific third party (e.g., a driver on an errand for his employer owes an individual duty of care to third-party motorists whom he encounters on public roadways). If the employee breaches that duty, he may be sued in his individual capacity, even as his employer may simultaneously be vicariously liable under the doctrine of respondeat superior because the employee was acting within the line and scope of his employment when he committed the tort. Thus, in answer to questions 2 and 3, a government employee sued for a tortious act committed in the line and scope of his employment may, in an appropriate case (i.e., where the employee has breached a duty he owes 8 1151317 individually to a third party), be sued individually.1 As will be evident in our discussions below of Ravi, Suttles, Morrow, and Allen, this principle is integral to the analysis in these public-employee cases.2 1See generally Ex parte McInnis, 820 So. 2d 795, 798-99 (Ala. 2001)(observing the well settled principle that an "'agent who personally participates, albeit in his or her capacity as such agent, in a tort is personally liable for the tort'" (quoting Sieber v. Campbell, 810 So. 2d 641, 645 (Ala. 2001))); Ex parte Charles Bell Pontiac-Buick-Cadillac-GMC, Inc., 496 So. 2d 774, 775 (Ala. 1986)("In Alabama, the general rule is that officers or employees of a corporation are liable for torts in which they have personally participated, irrespective of whether they were acting in a corporate capacity."); Restatement (Third) of Agency § 7.01 cmt. b (2006) ("An agent whose conduct is tortious is subject to liability [personally] .... whether or not the agent acted ... within the scope of employment." "[This rule] is consistent with encouraging responsible conduct by individuals to impose individual liability on an agent for the agent's torts although the agent's conduct may also subject the principal to liability." (emphasis added)). 2The Hospital Board and nurses' position in this case radically conflicts with these basic tenets. If that position were embraced, it would have major ramifications for heretofore settled law regarding the accountability of both public and private sector employees. The Hospital Board and nurses' position that all claims against individual governmental employees alleging negligent acts should be treated only as the "official" acts of their employer -- merely because the acts were committed "in the line and scope of their employment" -- would apply with equal force of logic to private-sector employment relationships and would unsettle centuries-old, bedrock principles of agency and employment law that allow injured parties not only to hold employers responsible for the acts of their employees occurring in the line and scope of employment, but also to separately hold the 9 1151317 employees themselves personally liable for their tortious conduct when they have breached an individual duty to a third party. Of course, not every action of a public employee that is detrimental to a third party represents the breach of some duty owed by the employee individually to that third party. (That is, every case is not an "appropriate case" for imposing individual-capacity liability.) For example, in Ravi, this Court's decision not to apply the $100,000 damages cap to a larger judgment against two nurses employed by a county hospital was predicated on the understanding that those nurses did owe a duty in their individual capacities to the plaintiff as their patient. Conversely, in Smitherman, the Court's decision to apply the $100,000 damages cap was predicated in part on the notion that the action against the county commissioners and the county engineer alleged breaches of duties they owed to the public generally and not duties specifically owed by each of them personally to an individual plaintiff injured as a result of poor road conditions. See also, e.g., Alabama Dep't of Corr. v. Thompson, 855 So. 2d 1016, 1025 (Ala. 2003) (holding that "state correctional officers owe a general duty to the public, not a duty to a specific person, to maintain custody of inmates," while acknowledging that an individual duty "to a specific person may arise ... from a special relationship ... or ... special circumstances"). Obviously, the number of cases like Ravi in which an individual duty by a public employee, and thus an "individual- capacity" claim against the employee, are understood to exist is legion. Witness the hundreds of cases (i.e., both pre- and post-Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), dating back to 1901), which start with the premise of otherwise viable individual-capacity claims based on negligence committed by public employees or officials while acting within the line and scope of their official duties, but then proceed to apply nuanced standards, elements, and exceptions to determine which actions of which employees nonetheless qualify for complete "State-agent immunity." If there were no individual duty in such cases, and thus no otherwise viable 10 1151317 And, of course, it is the plaintiff who is "the master of his complaint." It is the plaintiff who elects whether to frame his claim as one seeking recovery against a defendant in his official capacity or one seeking a recovery against the defendant in his individual capacity -- or both. See, e.g., Ex parte Sundy, 164 So. 3d 1089, 1093 (Ala. 2014). Whether the law recognizes a duty to the plaintiff on the part of the defendant in the capacity alleged by the plaintiff goes to the merit of the claim framed by the plaintiff. See note 2, individual-capacity claims, the appropriate remedy would have been simply to dismiss the individual-capacity claim against the employees for failure to state a claim upon which relief could be granted, see Rule 12(b)(6), Ala. R. Civ. P.; such defenses as immunity and statutory damages caps would be unnecessary and inapposite. Alternatively, if all such claims were bound to be treated simply as "official-capacity" claims, the whole of State-agent immunity law (comprising, as noted, hundreds of cases dating back over a century, and once discussed under the rubric of "discretionary-function immunity") would have been a wholly unnecessary exercise by this Court –- § 14 "sovereign immunity" simply would have applied in all such cases. See Ala. Const. 1901, § 14. 11 1151317 supra.3 It is for the court to address the merit of the claim as framed by the plaintiff, not to reframe it. We turn now to questions 1 and 4 as framed by the trial court. We first acknowledge the holding of Ravi v. Coates, 662 So. 2d 218 (Ala. 1995), to which the trial court refers in question 1. The trial court in Ravi "granted the [county] hospital's motion to reduce the judgment against it to $100,000 pursuant to § 11-93-2, Ala. Code 1975, but denied the motion to do likewise for the [nurse-]employees of the hospital, Cathy Foxworthy and Wilma Vaughn." 662 So. 2d at 223. On appeal, Foxworthy and Vaughn argued that the trial court erred by not applying the § 11-93-2 damages cap to the damages award against them. This Court rejected that argument, noting that, by its terms, § 11-93-2 applies to damages awards "'against a governmental entity,'" as that term 3As noted in the last paragraph of note 2, if the plaintiff, as the "master of his complaint," has framed a claim seeking monetary relief from a government official or employee only in his individual capacity, and if our law simply does not recognize a duty owed by the official or employee personally to the plaintiff, the appropriate result is simply the dismissal of the claim under Rule 12(b)(6), Ala. R. Civ. P., for failure to state a claim upon which relief can be granted, rather than applying a damages cap our legislature has prescribed for an entirely different (i.e., official- capacity) type of claim. 12 1151317 is defined in § 11–93–1(1), Ala. Code 1975. 662 So. 2d at 223 (quoting § 11-93-2). The Court concluded that, "because § 11–93–2 does not apply to the employees of a governmental entity, the court properly refused to reduce the judgment against nurses Foxworthy and Vaughn." 662 So. 2d at 223 (emphasis added). The holding in Ravi is consistent with the fundamental principle that a government employee is liable, in his individual capacity, for torts committed against a third party to whom the employee individually owes a duty. Nothing in Smitherman v. Marshall County Commission, 746 So. 2d 1001 (Ala. 1999), unsettles this fundamental principle. As observed in note 2, supra, the county commissioners and the county engineer in Smitherman owed no personal duties to the plaintiff in that case. Accordingly, this Court's analysis in Smitherman did not apply the damages cap of § 11-93-2 to the claims against those defendants in their individual capacities. There was no need to do so. Instead, the outright dismissal of those claims, upheld by this Court, was consistent with the fundamental principle that a government official or employee may be liable individually to a third 13 1151317 party only if the official or employee owes a duty, individually, to that party. On the other hand, the plaintiff's claims against the county commissioners and the county engineer in Smitherman, to the extent brought against those officials in their official capacities, did state otherwise cognizable claims for relief under Alabama law, and, therefore, the damages cap of § 11-93- 2 was apposite to those claims. In so holding, this Court left no doubt that, in fact, claims against county officials or employees in their individual capacities and in their official capacities are in fact two separate things. Far from overruling Ravi, the Court's analysis in Smitherman distinguished -- and reinforced -- the holding in Ravi by explaining that a suit against a public official in his official capacity, as opposed to his individual capacity, is subject to the damages cap of § 11-93-2: "The plaintiffs and amicus Alabama Trial Lawyers Association argue that the cap statute should not apply to any entity except the county, citing Ravi v. Coates, 662 So. 2d 218, 223 (Ala. 1995). ... ".... "The plaintiffs are correct in stating that in Ravi this Court held that the cap did not apply to nurses employed by a public hospital. However, in 14 1151317 that case, this Court did not analyze the distinctions between claims against public employees in their individual capacities and those against public employees in their official capacities. That distinction is a key element in our analysis of this case." 746 So. 2d at 1006 (emphasis added); id. at 1007 (holding that "claims against county commissioners and employees in their official capacity are, as a matter of law, claims against the county and are subject to the $100,000 cap contained in § 11- 93-2"). And, to be clear, in Suttles v. Roy, 75 So. 3d 90 (Ala. 2010), this Court observed that "nothing in ... Smitherman[] or § 11-93-2 allows" "this Court ... [to] consider the individual claim against Suttles as, in substance, an official-capacity claim subject to the cap of § 11–93–2," 75 So. 3d at 98,4 and we further explained the distinction 4See also id. at 101-02 (opinion modified on denial of reh'g)(Shaw, J., concurring specially)(rejecting the idea that Smitherman held that a public officer or employee who is engaged in the performance of his official duties "'acts only within his official capacity and is only subject to suit in his official capacity'" (quoting application for rehearing) and noting that "the per se rule [recognized in Smitherman] barring an individual-capacity action against a county commissioner exists by virtue of the county commissioner's role as a part of the governing body of the county"). 15 1151317 between individual-capacity and official-capacity claims in relation to the damages cap imposed by § 11-93-2: "Insofar as Roy's action seeks damages against Suttles in his official capacity, as noted in Smitherman, the cap of § 11-93-2 limits any recovery against Homewood and Suttles to $100,000. Suttles and Homewood thus contend that 'it makes no sense at all'• for the claims against Suttles in his official capacity 'to be governed by the statutory damages cap' without the claims against him in his individual capacity also being subject to the cap. Homewood and Suttles's brief at 20. This distinction -- 'capping damages for claims against Suttles in his official capacity but not capping damages for claims asserted against him in his individual capacity' -- however, is clearly provided by the cited authorities. "Section 11-93-2 caps the damages one may recover 'against a governmental entity.'• The policy of § 11-93-2 is to 'preserve' and 'protect[] the public coffers, for the benefit of all of the citizenry....' Benson[ v. City of Birmingham], 659 So. 2d [82] at 86-87 [(Ala. 1995)]. A claim against an employee in his or her individual capacity, however, does not seek to recover damages from the governmental entity. See Gamble v. Florida Dep't of Health & Rehabilitative Servs., 779 F.2d 1509, 1513 (11th Cir. 1986) ('Whether a state officer is being sued for damages in an official or an individual capacity is not mere semantics; the question is whether the plaintiff is reasonably seeking relief from the state coffers or from the individual's assets.' (quoted in Ex parte Troy Univ., 961 So. 2d 105, 110 (Ala. 2006))). "Homewood and Suttles contend that at the time of Roy's injuries Suttles was acting in the line and scope of his employment and that there is no factual distinction between Roy's claims against Suttles in 16 1151317 his official capacity and in his individual capacity. They thus argue that 'the inescapable conclusion is that it makes no sense at all' for damages sought against him in his official capacity to be capped, while damages sought against him in his individual capacity are not. However, no authority is cited or argument advanced demonstrating that this Court or the trial court can consider the individual claim against Suttles as, in substance, an official-capacity claim subject to the cap of § 11–93–2; further, nothing in Benson, Smitherman, or § 11–93–2 allows such a result." 75 So. 3d at 97-98 (emphasis added). See also Alabama Mun. Ins. Corp. v. Allen, 164 So. 3d 568, 574 (Ala. 2014) (explaining that, in Suttles, "[t]his Court stated that, although the statutory cap on recovery against 'a governmental entity'• set forth in § 11-93-2 applied to a suit against a municipal employee in his official capacity, it did not apply to a suit against a municipal employee who is sued in his individual capacity" (emphasis added)). And, we repeat, "nothing in ... Smitherman[] or § 11-93-2 allows [the] result" that a court can convert a claim framed by the plaintiff as one against a governmental employee in his individual capacity into "an official-capacity claim" so as to make it "subject to the cap of § 11–93–2." 75 So. 3d at 98. Again, official-capacity and individual-capacity claims are two distinctly different types of claims, and it is the 17 1151317 plaintiff as "the master of his complaint" that decides whether to pursue one or the other -- or both. If a plaintiff chooses to sue an official or employee in his official capacity, such a claim is treated as a claim against the "governmental entity" because it constitutes an attempt to reach the public coffers. As Suttles clearly states, the purpose of the § 11–93–2 damages cap is to protect public coffers; therefore, the cap would apply to that claim. Unlike official-capacity claims, however, individual-capacity claims seek to hold a government official or employee personally liable, i.e., such claims seek a monetary recovery against the individual that can be collected only from his personal assets. Section 11–93–2 simply is not applicable to such a claim. Our conclusion is also consistent with our holding in Morrow v. Caldwell, 153 So. 3d 764 (Ala. 2014), which addressed the application of the similar damages cap provided specifically to municipalities under § 11-47-190, Ala. Code 1975. In Morrow, Keandarick Russell, a minor, was electrocuted and died after he touched a fence surrounding air-conditioning equipment that had been inspected by Wayne 18 1151317 Morrow, an electrical inspector for the City of Montgomery. Shameka Caldwell, as Russell's mother and next friend, filed a wrongful-death action against Morrow, in his individual capacity. 153 So. 3d at 766. "Morrow filed a motion asking the trial court for 'a judgment declaring the statutory limitations of liability of $100,000, pursuant to Ala. Code 1975, § 11-47-190, are applicable to Defendant Wayne Morrow in this case.'• Caldwell filed a response to Morrow's request for a declaratory judgment in which she contended that the statutory cap on recovery set forth in § 11-47-190 for damages against a municipality would not apply to the claims in this case because the claims were brought against Morrow in his individual capacity and because she alleged that Morrow had acted recklessly, wantonly, or willfully." 153 So. 3d at 767 (emphasis added). After the trial court denied Morrow's motion, this Court granted Morrow's petition for a permissive appeal as to the following question: "'Whether the claims against a municipal employee, sued in his individual capacity, are subject to the statutory cap of Ala. Code 1975, § 11–47–190, when those claims fall within the "willful or wanton" exception to the doctrine of State-agent immunity, under Ex parte Cranman, 792 So. 2d 392 (Ala. 2000).'"5 153 So. 3d at 767. 5The significance of recognizing that Morrow was sued based on allegedly "willful and wanton" conduct was that, if 19 1151317 On appeal, we noted that "Morrow argues that the plain language of § 11- 47-190 clearly dictates that the $100,000 statutory cap on recovery would apply to the claims against him even though he is being sued in his individual capacity and even though Caldwell is alleging that he acted recklessly, willfully, and wantonly. This Court has not yet addressed whether the statutory cap on recovery set forth in § 11-47-190 would apply to limit the liability of municipal employees sued in their individual capacity." 153 So. 3d at 768 (emphasis added). We then proceeded to hold in Morrow that the damages cap at issue in that case, like the similar damages cap at issue in Ravi, was enacted for the protection of the public coffers and therefore applied to claims brought against governmental employees in their official capacities, but not individually. 153 So. 3d at 771.6 See also Allen, 164 So. 3d at 578 ("When § 11-47-190 is read the plaintiff could prove her allegations, Morrow's conduct would not qualify for complete State-agent immunity (because it would fall within one of the two recognized exceptions to that immunity, see Ex parte Cranman, 792 So. 2d at 405), thus necessitating an examination of whether that defendant could benefit in the alternative from the statutory damages cap at issue. 6See generally Morrow, 153 So. 3d at 772-73 (Murdock, J., concurring specially) (surveying statutory predecessors to §§ 11-47-190 and -191, Ala. Code 1975, and cases interpreting §§ 11-47-190 and -191 and their predecessors, dating back to 1907, and noting the authority of the legislature to modify the common-law doctrine of county and municipal immunity). 20 1151317 as a whole, it is clear that the limitation on recovery in the second sentence is intended to protect the public coffers of the municipality, not to protect municipal employees from claims asserted against them in their individual capacity.").7 7That said, "State-agent immunity, as developed extensively in our caselaw, will apply in most cases involving municipal law-enforcement officials, particularly when they are acting within the line and scope of their duties; it will apply in many cases to non-law-enforcement municipal employees. In addition, there may be instances in which ... the nature of the employee's obligations to his or her municipal employer do not in fact also create a duty on the part of an employee to the third party [plaintiff]. See generally, e.g., Morrow v. Caldwell, 153 So. 3d at 771 (Murdock, J., concurring specially) ('[T]he question before us in this permissive appeal is limited to whether, if an employee of a municipality is personally liable for a tort he or she commits in the course of his or her employment by a municipality, that liability can exceed the $100,000 cap referenced in § 11–47–190. Any such liability, however, would of course depend as a threshold matter on the existence of a duty that was personal to the employee (not merely a duty of his or her employer) and that ran to the plaintiff (and not merely from the employee to his or her employer')." Allen, 164 So. 3d at 581(Murdock, J., concurring in the rationale in part and concurring in the result). No issue as to State-agent immunity is before us. 21 1151317 Conclusion A government employee sued for tortious acts he commits while acting in the line and scope of his employment may, in an appropriate case (i.e., where he has breached a duty he individually owes to a third party), be sued individually. Section 11-93-2 is not applicable to such a claim. Accordingly, we reverse the trial court's judgment stating that the claims against the nurses, in their individual capacities, are subject to the damages cap in § 11-93-2, and we remand the case for proceedings consistent with this opinion. REVERSED AND REMANDED. Parker, Wise, and Bryan, JJ., concur. Stuart, C.J., and Bolin, Shaw, and Main, JJ., concur in the result. Sellers, J., dissents. 22 1151317 SELLERS, Justice (dissenting). The trial court ruled that claims against the nurses-- Dawn Reid, Phyllis Harris, and Tuwanda Worrills--based on allegedly negligent acts or omissions committed in the line and scope of their employment with the Cleburne County Hospital Board, Inc., are subject to the damages cap set out in § 11-93-2, Ala. Code 1975. Thus, it appears that the trial court concluded that such claims are, necessarily, claims against the nurses in their official capacities and are governed by the holding of Smitherman v. Marshall County Commission, 746 So. 2d 1001 (Ala. 1999). In arguing to the trial court that the claims asserted by Clifford Goodman Wright, administrator of the estate of Mary Evelyn Wright, deceased, against the nurses are claims against them in their official capacities, the nurses and the Hospital Board pointed to Alabama Municipal Insurance Corp. v. Allen, 164 So. 3d 568 (Ala. 2014), an opinion issued almost 20 years after Ravi v. Coates, 662 So. 2d 218 (Ala. 1995). In Allen, this Court considered whether a municipal police officer, who was "acting outside his employment" when he caused an automobile accident that injured two individuals, was entitled 23 1151317 to rely on a damages cap.8 The police officer in Allen caused the accident while driving to work at an extreme rate of speed, and, after the accident, he tested positive for marijuana. 164 So. 3d at 569. In considering an argument that the officer had not actually been sued in his individual capacity, this Court said: "[The appellant] argues that [the police officer] was not actually sued in his 'individual capacity' because neither [of the plaintiffs'] complaints contain the phrase 'individual capacity.' Both complaints allege facts indicating that [the officer] was acting outside his employment as a police officer when the accident occurred. The language of the complaint as a whole is determinative of whether a municipal employee is being sued in his or her individual or official capacity." 164 So. 3d at 579. The nurses and the Hospital Board in the present case argued to the trial court that the above-quoted portion of Allen suggests that a claim against a governmental employee alleging mere negligent acts or omissions committed while the employee was acting within the line and scope of his or her employment should be considered a claim against the 8The cap involved in Allen is set out in § 11-47-190, Ala. Code 1975, and applies to claims against municipalities. Although § 11-47-190 applies to municipalities and § 11-93-2 applies to "governmental entities," the parties and amici curiae consider precedent construing and applying § 11-47-190 instructive in the present case. 24 1151317 employee in his or her official capacity. Specifically, the nurses and the Hospital Board argued: "Based on the reasoning of the Alabama Supreme Court in the line of cases above [including Allen], when one is sued in an 'individual capacity' he is being sued for acts committed outside the line and scope of his employment, [for] wanton, willful or intentional misconduct; whereas when sued in an official capacity, the individual was acting in the line and scope of his employment." Thus, the nurses and the Hospital Board argued, Allen demonstrates that the claims against the nurses stemming from allegedly negligent acts and omissions committed while they were acting within the line and scope of their employment are claims against them in their official capacities. I note that Wright does not directly address the quoted portion of Allen in his initial brief on appeal. See Soutullo v. Mobile Cty., 58 So. 3d 733, 739 (Ala. 2010) ("[T]he failure of the appellant to discuss in the opening brief an issue on which the trial court might have relied as a basis for its judgment ... results in an affirmance of that judgment."). Wright relies on Morrow v. Caldwell, 153 So. 3d 764 (Ala. 2014). In that case, a municipal employee who had performed an electrical inspection of a building was sued after a minor was electrocuted on the premises. Id. at 765-66. The trial 25 1151317 court in Morrow denied the employee's request for a declaration that the damages cap set out in § 11-47-190, Ala. Code 1975, applied to the claims against him. Id. at 767. In affirming the trial court's judgment, this Court noted that the plaintiff alleged that the municipal employee acted recklessly, wantonly, maliciously, willfully, fraudulently, intentionally, in bad faith, beyond his authority, and under a mistaken interpretation of the law. Id. at 766. Thus, as in Allen, the employee's actions in Morrow significantly exceeded mere negligence committed while acting in the line and scope of employment. I do not read Morrow as holding that claims against employees of governmental entities alleging negligence committed while undisputedly acting within the line and scope of their duties as employees are not subject to the cap in § 11-93-2. Wright relies heavily on Suttles v. Roy, 75 So. 3d 90 (Ala. 2010). In that case, the Court held that the appellant, a municipal police officer, had not sufficiently supported his assertion on appeal that "'it makes no sense at all' for the claims against [him] in his official capacity 'to be governed by the statutory damages cap' without the claims against him 26 1151317 in his individual capacity also being subject to the cap." Id. at 98. The Court noted that the officer had not sufficiently developed an argument, or provided citations to authority, supporting his assertion that the trial court should have considered "the individual claim against [him] as, in substance, an official-capacity claim subject to the cap of § 11-93-2." Id. In a special concurrence on the denial of rehearing, Justice Shaw noted that the opinion on original submission had acknowledged "that no authority was cited for the proposition that § 11-93-2 capped any claims against [the officer] in his individual capacity at $100,000." Id. at 104. Thus, contrary to Wright's position in the present case, it appears that Suttles did not settle the issue. I do not believe that Wright has demonstrated that the trial court erred in ruling that the claims against the nurses based on alleged negligent conduct committed within the line and scope of their employment are claims against them in their official capacities. Consequently, I would affirm the trial court's judgment. 27

December 29, 2017

44ea79ab-62ba-42a0-9002-18b37122fb0a

Ex Parte RTS

771 So. 2d 475

1981967

Alabama

Alabama Supreme Court

771 So. 2d 475 (2000) Ex parte R.T.S. In re B.L.S. v. R.T.S. 1981967. Supreme Court of Alabama. January 7, 2000. Rehearing Denied March 31, 2000. Lawrence J. Hallett, Jr., Mobile, for petitioner. Kent Baxley, Mobile, for respondent. *476 HOUSTON, Justice. In a divorce judgment the trial court awarded custody of the parties' four children to the father, R.T.S. The mother, B.L.S., appealed. The Court of Civil Appeals affirmed part of the trial court's judgment, but reversed that part of the judgment awarding custody of the children to the father. See B.L.S. v. R.T.S., 771 So. 2d 470 (Ala.Civ.App.1999), for a more detailed discussion of the facts of the case. Judge Crawley dissented from the reversal of the custody award, stating: We granted certiorari review pursuant to Rule 39, Ala. R.App. P., but only as to the custody issue. We reverse and remand. The sole issue on this review is whether the trial court's finding that custody of the children should be awarded to the father is clearly erroneous. Child-custody cases are among the most perplexing and heart-wrenching that appellate judges are called upon to review. We can rarely discern from a cold record exactly what kind of custody arrangement would be in the best interests of children already struggling to cope with the breakup of their family. For this reason, in such cases this Court has consistently adhered to a well-established standard for reviewing a trial court's factual findings based on disputed testimony. In Ex parte Bryowsky, 676 So. 2d 1322, 1324 (Ala.1996), this Court stated: See also Ex parte Patronas, 693 So. 2d 473 (Ala.1997). Although it is difficult enough for a trial court to determine what custody arrangement would be in a child's best interests, that court is far better situated than an appellate court to make the credibility determinations that are necessary to any custody ruling. Neither the Court of Civil Appeals nor this Court may reweigh the evidence and substitute its judgment *477 for that of the trial court. The trial court must be allowed to be the trial court; otherwise, we (appellate court judges and justices) risk going beyond the familiar surroundings of our appellate jurisdiction and into an area with which we are unfamiliar and for which we are ill-suited factfinding. Although the trial court did not specifically state any findings of fact, the record indicates that the court heard extensive testimony from the mother, the father, character witnesses, expert witnesses, and one of the minor children, much of which was disputed, concerning the caregiving abilities and the lifestyles of the respective parents. Suffice it to say that the evidence presented a close question for the trial court. After thoroughly reviewing the record, we conclude that the Court of Civil Appeals reweighed the evidence and substituted its judgment for that of the trial court when, in fact, its review should have been limited to the question whether there was evidence to support the trial court's judgment. The evidence was sufficient to support the trial court's implicit finding that it would be in the children's best interests to live with their father. To the extent it reversed the trial court's custody award, the judgment of the Court of Civil Appeals is reversed. The case is remanded. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.

January 7, 2000

443e436d-37d2-4278-bdd2-feaef2c7073e

Brushwitz v. Ezell

757 So. 2d 423

1980621

Alabama

Alabama Supreme Court

757 So. 2d 423 (2000) Ron BRUSHWITZ and Faye Brushwitz v. Carl W. EZELL and Ezell, Ryberg & Associates, Inc. 1980621. Supreme Court of Alabama. January 21, 2000. *425 Thomas S. McGrath, Huntsville, for appellants. Robert V. Wood, Jr., and Richard L. Morris of Spurrier, Rice, Wood & Hall, Huntsville, for appellees. BROWN, Justice. The plaintiffs Ron Brushwitz and Faye Brushwitz appeal a summary judgment entered in favor of the defendants Carl W. Ezell and Ezell, Ryberg & Associates, Inc. (together referred to as "Ezell"). On June 21, 1998, the Brushwitzes sued Ezell; Kinco Pest Control, Inc.; Edward *426 Collier; and Complete Residential Inspections, L.L.C. Their claims arose out of their purchase of a used residence in Madison County. The complaint alleged that on June 9, 1997, following an appraisal, a termite inspection, and a home inspection finding no termite infestation or damage, wood-decaying fungus, or moisture damage, the Brushwitzes purchased a residence located at 2697 Ready Section Road in Toney. The complaint also alleged that on May 6, 1997, Ezell inspected the property and issued an appraisal containing the following phrases appearing under the heading "Foundation": (C. 5.) The complaint alleged that on September 12, 1997, however, evidence of termite infestation, termite damage, excessive moisture, wood-decaying fungus, and wood rot was discovered in various parts of the Brushwitzes' house, including the crawl space, the foundation, and the attic. The Brushwitzes' complaint alleged that the defendants had negligently or wantonly inspected their home for termite infestation and fungal growth; that they had suppressed the condition of the house; and that they had recklessly, willfully, and fraudulently misrepresented the condition of the residence and the presence of termite infestation, termite damage, and wood-decaying fungus. Ron Brushwitz, a technical writer and editor of weapon-system manuals for the Army Aviation and Missile Command at Redstone Arsenal, testified by deposition that he and his wife, after looking at the house approximately two times, decided to purchase it. Norwest Mortgage, Inc. ("Norwest"), sent an appraisal notice to the Brushwitzes for their signature. The notice, which was signed by the Brushwitzes on March 27, 1997, included this disclaimer: "You should note that: (C. 208.) Mr. Brushwitz testified that on April 2, 1997, Edward Collier, who was employed by Complete Residential Inspections, inspected the home. Mr. Brushwitz agreed that the inspection report stated that the property was reinspected on April 5, May 4, and May 22, 1997, to follow up on problems with the heat pump and the water heater. Mr. Brushwitz also testified that the appraisal and the termite inspections were performed before the closing occurred on June 9, 1997.[1] Norwest had retained Ezell to perform the appraisal. After purchasing the house, the Brushwitzes discovered "flying ants" on the patio. They telephoned Morgan Pest Control. Donald Morgan of Morgan Pest Control inspected the house and reported that the house had active termites, black fungus, and rotten lumber. Mr. Brushwitz contacted the State Department of Agriculture, which sent someone to inspect the property.[2] Mr. Brushwitz testified that, despite his reading and signing the disclaimer sent by Norwest, he did not obtain another appraisal for the property. However, Mr. Brushwitz was unable to recall exactly when he received and read the appraisal *427 report. All that he could say was that he had read the report before or at closing. In addition, he testified that he understood the sales contract, which stated that with a conventional loan "any appraisal required by the lender is used by the lender to determine the maximum mortgage amount and does not warrant the value or condition of the property, to the lender."[3] (Deposition of Ron Brushwitz, p. 252.) Mr. Brushwitz also testified that he would not have bought the house if he had known of the termite and fungal problems. At her deposition, Faye Brushwitz testified that she had worked as a licensed realtor in Trenton, Illinois, for five years. She stated that in her years as a realtor she was involved in making arrangements for termite and home inspections. She agreed that the home inspector, the termite inspector, and the appraiser had different and distinct jobs. She could not recall, however, whether she saw the real-estate appraisal for the home before the closing or saw it afterwards. Mrs. Brushwitz stated that she understood the disclaimers contained in the sales contract and the appraisal notice sent to the Brushwitzes from Norwest. Carl Ezell, a licensed appraiser and owner of Ezell, Ryberg & Associates, Inc., testified by deposition that Norwest retained him to perform an appraisal in anticipation of the purchase of this piece of property. He had appraised this same residence in 1992, and he used some of the information from the prior appraisal to reach the conclusions for the 1997 appraisal. Mr. Ezell testified that he was subject to the Uniform Standards of Professional Appraisal Practice ("USPAP").[4] When questioned about his normal procedure for appraising a house, he stated: (Deposition of Carl Ezell, pp. 35-36.) The "Uniform Residential Appraisal Report" submitted by Mr. Ezell contained a "Statement of Limiting Conditions" and an "Appraiser's Certification." The report, in its "Statement of Limiting Conditions," carried the following paragraph: (C. 99.) Under the heading "Appraiser's Certification," the report stated: (C. 100.) Mr. Ezell testified that during his inspection of the Brushwitzes' house, he did not go into the crawl space or onto the roof. He could not recall if he looked into the attic. He did, however, look at the exterior and the interior of the house. He also opened the crawl-space door and looked inside. He observed the roof by stepping away from the house and looking. Mr. Ezell stated that his contract was exclusively between himself and Norwest and that the Brushwitzes had had no reason to rely on his appraisal. He noted that many borrowers never look at the appraisal performed for the mortgage company. Ezell also explained that the purpose of the appraisal is to express an opinion of value, not an opinion of condition. He stated that he formed an opinion of value based on observations, not based on factual information. In his affidavit, he described his job: (C. 91.) Mr. Ezell stated that termite infestation and damage are most likely an adverse condition as described in paragraph 6 of the appraisal's limiting conditions. According to Mr. Ezell, any evidence of termite infestation and dampness he observed would be listed as an adverse condition and would subject his appraisal to a qualified termite inspection. In fact, he testified *429 that if he had found termites during his inspection, the house would have been worth less than $123,000 until repairs were done. Mr. Ezell stated that he was not an expert at termite inspections, and he said he did not think he would even recognize fungus on wood in a crawl space. On April 17, 1998, Ezell moved for a summary judgment. Thereafter, the trial court entered an order stating: (C. 338.) This appeal followed. This Court's review of a summary judgment is de novo: Hobson v. American Cast Iron Pipe Co., 690 So. 2d 341, 344 (Ala.1997). The Brushwitzes claim that Ezell misrepresented the condition of the house. The elements of fraud are: (1) a misrepresentation of a material fact, (2) made willfully to deceive, recklessly, without knowledge, or mistakenly, (3) that was reasonably relied on by the plaintiff under the circumstances, and (4) that caused damage as a proximate consequence. Foremost Ins. Co. v. Parham, 693 So. 2d 409, 422 (Ala.1997). Before this Court decided Foremost Insurance, it had defined fraud to include an element of "justifiable" reliance, rather than the element of "reasonable" reliance. In Foremost Insurance, we substituted the reasonable-reliance standard for the justifiable-reliance standard for cases filed after March 14, *430 1997, the date that case was decided.[6]Id. at 421. We stated in Foremost Insurance: 693 So. 2d at 421. A person has a duty to read the documents related to a particular transaction. Id. We must first determine whether the Brushwitzes presented substantial evidence indicating a misrepresentation of material fact by Ezell. We find no such evidence. Contrary to the Brushwitzes' assertions, Ezell did not guarantee the condition of the house; at most, Ezell simply placed a value on the home. The purpose of the appraisal was set forth in Norwest's disclaimer, which stated that the appraisal was not performed for the purchasers to use in determining the value of the house, but was performed for the lender. In addition, the disclaimer stated that the appraisal did not guarantee that the house was free of defects. According to Mr. Ezell's affidavit, he did not see any evidence of wood-destroying organisms or termites. The Brushwitzes offered no evidence indicating that the termites and wood-destroying organisms were present or visible at the time of Mr. Ezell's inspection. Therefore, a jury could not conclude from the evidence presented that Mr. Ezell misrepresented material facts. The Brushwitzes also claim that Mr. Ezell did not inspect the interior and the exterior of the home and that Ezell misrepresented this fact. However, Ezell presented evidence indicating that Mr. Ezell followed his procedures for appraising a home. Mr. Ezell made a visual inspection of the roof and he stuck his head in the crawl space. The Brushwitzes argue that he should have inspected the attic, but Mr. Ezell testified that in making an appraisal inspection he normally did not go into the attic of a house. The Brushwitzes presented no evidence indicating that Mr. Ezell neglected to follow ordinary appraisal procedures. The Brushwitzes also failed to present evidence from which a jury could find the "reliance" element of a fraud claim. Ron Brushwitz read government contracts for a living, and Faye Brushwitz had been a real-estate agent and was familiar with the process of buying and selling a home. The plaintiffs were fully capable of reading and understanding the document containing the disclaimer. Any reliance by them on the appraisal would have been unreasonable. See Foremost Insurance, 693 So. 2d at 421. The Brushwitzes argue that they relied on the appraisal and decided to purchase the house because the appraisal failed to indicate any defects in the house. However, the Brushwitzes could not say with certainty when they received and read the appraisal. Moreover, the appraisal report explicitly stated that it was not an evaluation of the condition of the house. The disclaimer signed by the Brushwitzes stated that the appraisal was not to be used by *431 the Brushwitzes to determine the value of the house, but only to assist the lender in determining whether the house would have been adequate to secure payment of the loan the Brushwitzes were seeking. (C. 208.) By signing the disclaimer, the Brushwitzes acknowledged that the appraisal was not a guarantee regarding the condition of the home. In her deposition, Mrs. Brushwitz testified about the job of an appraiser: (C. 219-20.) Mrs. Brushwitz's questioning continued: (C. 222.) Based on the foregoing, we conclude that the Brushwitzes failed to present substantial evidence indicating a misrepresentation, be it innocent, willful, or reckless. The Brushwitzes also claim that Ezell suppressed a material fact. The elements of suppression are: (1) a duty on the defendant to disclose a material fact; (2) the defendant's concealment or nondisclosure of that fact; (3) inducement of the plaintiff to act; and (4) action by the plaintiff to his injury. Foremost Insurance, 693 So. 2d at 423. Silence on the part of the defendant regarding a material fact is not considered suppression unless the defendant has an obligation to communicate that fact. Id. "The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case." § 6-5-102, Ala. Code 1975. Here, Mr. Ezell did not have a duty to disclose, because no confidential relationship existed between him and the Brushwitzes. Although the Brushwitzes claim that under the USPAP appraisers have a fiduciary duty to "intended users," this claim must fail. A fiduciary relationship is a confidential relationship in which one person is obligated to act in another person's best interests. See, e.g., K & C Dev. Corp. v. AmSouth Bank, N.A., 597 So. 2d 671 (Ala.1992) (quoting Bank of Red Bay v. King, 482 So. 2d 274, 284 (Ala. *432 1985)). The relationship between Ezell and the Brushwitzes was not a confidential one. Indeed, the disclaimer signed by the Brushwitzes stated that the appraisal was not intended for their use. Although Norwest issued the disclaimer and the Brushwitzes signed it, the subject of the disclaimer was the appraisal performed by Mr. Ezell. The Brushwitzes' personal experience in purchasing and selling real estate, in reading and setting up appraisals for those properties, and particularly Mrs. Brushwitz's background as a real-estate agent provided them with an understanding of appraisal reports. Ezell did not have a fiduciary duty to them. See Foremost Insurance, 693 So. 2d at 424. As with the misrepresentation claim, there arises with the suppression claim a question whether the statements in the appraisal were material, given that appraisals are considered statements of opinion, rather than statements of fact. Kaye v. Pawnee Constr. Co., 680 F.2d 1360, 1368 (11th Cir.1982). Mr. Ezell does not claim to be an expert at termite inspections or at home inspections. Mrs. Brushwitz testified that she understood the distinct jobs that a home inspector, a termite inspector, and an appraiser were to perform. In addition, the Brushwitzes presented no evidence indicating that the termite infestation and damage and the fungus were present at the time of Ezell's appraisal or indicating that any of the infestation or damage, if it was present, was visible. "One can be liable for suppression only of a fact of which one has knowledge." Dodd v. Nelda Stephenson Chevrolet, Inc., 626 So. 2d 1288, 1292 (Ala. 1993). The only evidence the Brushwitzes provided that suggests termites and fungus were present when Mr. Ezell made the appraisal appears in the deposition testimony of Donald Morgan: (Deposition of Donald Morgan, pp. 24-25.) Morgan's testimony did not provide substantial evidence indicating that Ezell knew that the termite and fungus problem existed or indicating that the problem was or should have been evident to Mr. Ezell at the time of the appraisal. Evidence supporting nothing more than speculation, conjecture, or a guess does not rise to the level of substantial evidence. Smoyer v. Birmingham Area Chamber of Commerce, 517 So. 2d 585, 588 (Ala.1987). The Brushwitzes also claim that Ezell negligently or wantonly inspected their home. This Court has stated: Martin v. Arnold, 643 So. 2d 564, 567 (Ala. 1994). The existence of a duty to the Brushwitzes is questionable because 1) they signed the disclaimer from Norwest and 2) the appraisal contained limiting conditions. At most, Mr. Ezell had a duty not to mislead in his appraisal report. UPAP, Rule 2-1. Rule 2-1 provides: The Comments to Rule 2-1 state that persons expected to receive or rely on a "Summary Appraisal Report," which appears to be the appraisal at issue in this case, are the client and intended users. "Intended users," according to the definition section of the USPAP (1997 ed.), are "the client and any other party as identified, by name or type, as users of the appraisal, consulting, or review report, by the appraiser based on communication with the client at the time of assignment." Here, the "client" was Norwest. The Brushwitzes could be considered intended users because they were listed on the appraisal as the borrowers. However, the relationship between Ezell, the Brushwitzes, and Norwest was altered by the disclaimer. Thus, Ezell had no duty to the Brushwitzes. If no duty exists, there can be no breach of duty. However, even assuming Ezell had a duty to the Brushwitzes, we note that the Brushwitzes presented no evidence indicating that Mr. Ezell misled the Brushwitzes. The purpose of his appraisal was to provide an estimate of the fair market value of the house. The fair market value provided would have been the same if Mr. Ezell had made the appraisal subject to a termite inspection, given that the termite inspection failed to indicate any problems. The Brushwitzes presented no evidence of negligence and no evidence of wantonness, on the part of Ezell. The evidence presented in this case "affords nothing more than mere speculation, conjecture, or guess [and] is completely insufficient to warrant the submission of [the] case to the jury." Smoyer v. Birmingham Area Chamber of Commerce, 517 So. 2d at 588. The Brushwitzes failed to present substantial evidence indicating misrepresentation, suppression, negligence, or wantonness on the part of Ezell. Therefore, the trial court properly entered the summary judgment in favor of Ezell. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. [1] According to the record, the appraisal was conducted on May 6, 1997, and the termite inspection took place on May 29, 1997. [2] Morgan's report is contained in the record; however, the State's evaluation is not. [3] This statement apparently appears on the back of the sales contract. Although the page is referred to as Exhibit 1 to Ron Brushwitz's deposition, the page is not attached and does not appear in the remaining parts of the record. [4] Section 34-27A-23, Ala.Code 1975, provides: "A licensed real estate appraiser shall comply with the current Uniform Standards of Professional Appraisal Practice approved by the board." [5] The Brushwitzes' claims against Kinco Pest Control, Inc., the company that performed the termite inspection; Complete Residential Inspections, L.L.C., the home-inspection company; and Complete's home inspector, Edward Collier, were not disposed of by summary judgment. [6] This present case is subject to the Foremost Insurance reasonable-reliance standard because this case was filed after March 14, 1997.

January 21, 2000

581ad955-9a10-471e-8a6d-747d5c3edc50

Ex parte Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital.

N/A

1160706

Alabama

Alabama Supreme Court

rel: December 15, 2017 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2017-2018 ____________________ 1160706 ____________________ Ex parte Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital PETITION FOR WRIT OF MANDAMUS (In re: T.N., an individual; A.V., an individual; O.J., an individual; and I.P., an individual v. Leland Bert Taylor, Jr., and Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital) (Marengo Circuit Court, CV-15-900137) SELLERS, Justice. Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital ("the hospital") petitions this Court for a 1160706 writ of mandamus directing the Marengo Circuit Court to vacate its order compelling the hospital to respond to certain discovery requests and to enter a protective discovery order in its favor. We deny the petition. Facts and Procedural History T.N., A.V., O.J., and I.P. (hereinafter referred to collectively as "the plaintiffs") brought this action against the hospital, and its radiological technician, Leland Bert Taylor, Jr., who they allege sexually assaulted them while they were patients of the hospital. The plaintiffs asserted a claim against Taylor, alleging that he had acted negligently and/or wantonly by sexually assaulting them.1 The plaintiffs also asserted a claim against the hospital, alleging that it was vicariously liable for the negligent and/or wanton acts of Taylor and that it was negligent and/or wanton in its hiring, training, supervision, and retention of Taylor. Along with their complaint, the plaintiffs served the hospital with written discovery requests seeking, among other things, information concerning "other incidents" involving 1Taylor is not a party to this mandamus proceeding; according to the plaintiffs, he was arrested and charged with first-degree sodomy and first-degree sexual assault in connection with the allegations of sexual abuse. 2 1160706 Taylor; its investigation into their allegations of sexual assault by Taylor; and its hiring, training, supervision, and retention of Taylor and the termination of his employment. The hospital objected to the plaintiffs' requests, contending that the requests were protected by certain discovery privileges. Specifically, the hospital argued that any information concerning "other incidents" by Taylor was barred by § 6-5- 551, Ala. Code 1975, a part of the Alabama Medical Liability Act, § 6–5–480 et seq., Ala. Code 1975, and § 6–5–540 et seq., Ala. Code 1975 ("the AMLA"). Section 6-5-551 of the AMLA prohibits a party from conducting discovery "with regard to any other act or omission." The hospital further argued that any information concerning its hiring, training, supervising, retention, and dismissal of Taylor, as well as its investigation into the plaintiffs' allegations of sexual assault by Taylor, was privileged under § 22-21-8(b), Ala. Code 1975, which provides that "[a]ll accreditation, quality assurance credentialing and similar materials shall be held in confidence and shall not be subject to discovery." The plaintiffs filed a motion to compel discovery, relying on Ex parte Vanderwall, 201 So. 3d 525 (2015), which 3 1160706 held that the AMLA did not apply to allegations of sexual assault. After conducting a hearing, the trial court entered an order granting the plaintiffs' motion to compel. The hospital moved for a protective order pursuant to Rule 26(c), Ala. R. Civ. P., concerning the discovery requests, which the trial court denied. This petition followed. Standard of Review "'Mandamus is an extraordinary remedy and will be granted 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 Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991). In Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810 (Ala. 2003), this Court announced that it would no longer review discovery orders pursuant to extraordinary writs. However, we did identify four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus. Such circumstances arise (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So. 2d 640, 644–45 (Ala. 2001) .... The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case--that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ'g Co., 601 So. 2d 423, 426 (Ala. 1992).' 4 1160706 "Ex parte Dillard Dep't Stores, Inc., 879 So. 2d 1134, 1136–37 (Ala. 2003)." Ex parte Fairfield Nursing & Rehab. Ctr., L.L.C., 22 So. 3d 445, 447 (Ala. 2009). Discussion The hospital first contends that the trial court exceeded its discretion by allowing the plaintiffs to seek discovery of "other incidents" involving Taylor, which, they say, is prohibited by § 6-5-551 of the AMLA. See Ex parte Gentiva Health Servs., Inc., 8 So. 3d 943, 946–47 (Ala. 2008)("The exemption from discovery offered by § 6–5–551 ..., which prohibits a party in a medical-malpractice action 'from conducting discovery with regard to any other act or omission,' i.e., any act or omission other than the one that allegedly renders the health-care provider liable, is treated as a privilege for purposes of determining whether in issuing the discovery order the trial court has disregarded a privilege, thus warranting review of the discovery order by way of a petition for a writ of mandamus."). The plaintiffs, on the other hand, relying on Ex parte Vanderwall, assert that, because an act of sexual assault by a medical provider does not result in a "medical injury" as contemplated by the 5 1160706 AMLA, the hospital cannot rely on § 6-5-551 as a basis on which to refuse to respond to their discovery requests. Whether the plaintiffs' requested discovery is prohibited under § 6-5-551 requires a determination of whether their claim of negligent and/or wanton hiring, training, supervision, and retention is governed by the AMLA and, more specifically, whether this Court's holding in Vanderwall is instructive in this regard. In Vanderwall, a physical therapist allegedly sexually assaulted a patient during the course of treating her for back pain. The patient sued the physical therapist, asserting a claim against him for assault and battery. The patient also sued the rehabilitation center that employed the physical therapist, asserting a claim against it of negligent and/or wanton hiring. During the course of discovery, the patient sought a declaration that her claims against the physical therapist and the rehabilitation center were not governed by the AMLA. The patient, however, dismissed her claim against the rehabilitation center, and the case proceeded against only the physical therapist. On appeal, this Court concluded that the physical therapist could not use the AMLA as a basis on 6 1160706 which to refuse to answer the patient's interrogatories concerning other acts or omissions on her part because "sexual misconduct by a health-care provider toward a patient is not medical treatment, and it does not result in a 'medical injury' as such an injury is understood under the AMLA." 201 So. 3d at 540. The hospital contends that Vanderwall is distinguishable, primarily because the patient in Vanderwall dismissed her claim against the rehabilitation center, and Vanderwall thus never addressed whether the AMLA applied to the claim of negligent and/or wanton hiring of the physical therapist. Rather, Vanderwall addressed only whether the claim against the physical therapist, alleging assault and battery based on sexual misconduct, was governed by the AMLA and held that the AMLA did not apply. The hospital asserts that, even though the plaintiffs' negligence and/or wantonness claim against Taylor--based on acts of sexual assault--arguably might not be governed by the AMLA, the claim against it, alleging negligent and/or wanton hiring, training, supervision, and retention, would be governed by the AMLA.2 In other words, the hospital 2The hospital notes that, because it cannot be held vicariously liable under a theory of respondeat superior for 7 1160706 asserts that the plaintiffs' claim against it is not a claim alleging sexual assault but, rather, an independent claim of medical negligence stemming from the hospital's alleged failure to protect the plaintiffs from harm and its alleged negligent and/or wanton hiring, training, supervision, and retention of Taylor. We agree. The AMLA applies "[i]n any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care." § 6-5-548, Ala. Code 1975. Section 6-5-551 provides: "In any action for injury, damages, or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, whether resulting from acts or omissions in providing health care, or the hiring, training, supervision, retention, or termination of care givers, the Alabama Medical Liability Act shall govern the parameters of discovery and all aspects of the action." Taylor's acts of sexual assault, the only viable claim against it is the claim alleging negligent and/or wanton hiring, training, supervision, and retention of Taylor. See Hendley v. Springhill Mem'l Hosp., 575 So. 2d 547, 550 (Ala. 1990)(noting that, in the master-servant relationship, "the determinative question becomes whether the act committed by the employee was done while acting within the line and scope of his employment. If it is determined that the employee was not acting within the scope of his employment, then there can be no recovery under the doctrine of respondeat superior."). 8 1160706 (Emphasis added.) See Ex parte Ridgeview Health Care Ctr., Inc., 786 So. 2d 1112, 1116 (Ala. 2000)(stating that "§ 6-5- 551 makes it clear that a claim against a health-care provider alleging that it breached the standard of care in hiring, training, supervising, retaining, or terminating its employees is governed by the [AMLA]"). Here, the plaintiffs have specifically alleged that the hospital owed a duty to properly hire, train, supervise, and retain its employees, including Taylor; that the hospital undertook a duty to protect patients like the plaintiffs from harm while they were receiving treatment at its facility; that the hospital negligently and/or wantonly entrusted Taylor with the care and treatment of patients at its facility; that the hospital knew, or in the exercise of reasonable care, should have known that Taylor was incompetent and/or unfit to perform the job he was hired to perform; and that the hospital negligently and/or wantonly failed to act and to terminate Taylor's employment upon actual or constructive notice of his incompetence and/or unfitness to perform his job. The plaintiffs' primary contention is that the hospital was made aware of Taylor's sexual misconduct well before October 7, 2015--the date Taylor was arrested and 9 1160706 charged with first-degree sodomy and first-degree sexual assault in connection with the incidents of sexual misconduct that are the subject of the underlying action–-yet the hospital did not terminate his employment until after this date. The plaintiffs' allegations clearly implicate the hospital's professional judgment in hiring, training, supervising, and retaining Taylor. Accordingly, we conclude that the plaintiffs' claim against the hospital alleging that it was negligent and/or wanton in its hiring, training, supervising, and retaining of Taylor involves a breach of an applicable standard of care for health-care providers and is, therefore, governed by the AMLA. In Ex parte Altapointe Health System, Inc., [Ms. 1160544, September 8, 2017] ___ So. 3d ___ (Ala. 2017), a case in which a resident of a group home was attacked by another resident, the resident's father, the plaintiff, sued Altapointe, the operator of the group home, alleging that it was negligent and/or wanton in hiring, training, and supervising its employees; the gravamen of the complaint was that Altapointe negligently and/or wantonly failed to safeguard the resident from the attack in the group home. This Court held that the 10 1160706 AMLA did not apply to the father's claim, alleging negligent and/or wanton supervision, because there were no express allegations of medical negligence. Rather, the father's contentions were based "solely on the fact that the attack occurred in its facility," a contention that "merely applies the discredited 'time and place' argument to the facts of this case." ___ So. 3d at ___. In Altapointe, this Court pointed out that Vanderwall had overruled the "place and time" rule previously applied by this Court in Mock v. Allen, 783 So. 2d 828 (Ala. 2000), and O'Rear v. B.H., 69 So. 3d 106 (Ala. 2011). In Vanderwall, this Court explained: "[I]t is clear that the AMLA is not just concerned with who committed the alleged wrongful conduct or when and where that conduct occurred, but also with whether the harm occurred because of the provision of medical services." 201 So. 3d at 537-38. The plaintiffs' primary contention here is that the hospital was on notice of the alleged sexual assaults before Taylor was arrested and charged in connection with the assaults and subsequently released from his employment. Because we conclude that the AMLA governs the parameters of discovery in this action, we now address whether § 6-5-551 11 1160706 prohibits the plaintiffs from seeking information concerning "other incidents" or complaints involving Taylor, i.e., any act or omission other than the ones that allegedly render the hospital liable. The hospital asserts that two of the plaintiffs have requested discovery regarding "other incidents" or complaints and regarding the hospital's investigation of those incidents or complaints. The hospital asserts that, because the plaintiffs have filed their cases jointly, any responses of the hospital to the discovery requests will necessarily discuss facts or issues pertaining to the claims of the other plaintiffs. In other words, the hospital argues that § 6-5-551 prohibits each plaintiff from discovering information pertaining to any of the other plaintiffs. The hospital, however, has not cited any authority for its argument that the AMLA's "other acts or omissions" language would preclude plaintiffs who have filed a joint complaint from engaging in discovery related to the same employee by whom they were all victimized. In Ex parte Ridgeview, this Court stated: "Section 6–5–551, as amended, makes it clear that in an action against a health-care provider, based on acts or omissions in the 'hiring, training, supervision, retention, or termination of [the 12 1160706 health-care provider's employees],' the plaintiff is entitled only to discovery concerning those acts or omissions 'detailed specifica[lly] and factual[ly] descri[bed]' in the complaint and 'alleged by [the] plaintiff to render the health care provider liable to [the] plaintiff.' Thus, if the plaintiff alleges that the defendant health-care provider breached the standard of care by negligently training, supervising, retaining, or terminating an employee or by negligently entrusting an employee with an instrumentality, then the plaintiff may discover information only concerning those acts or omissions by those employees whose conduct is detailed specifically and factually described in the complaint as rendering the health-care provider liable. Consequently, Hayes is not entitled to discovery regarding acts or omissions by Ridgeview in the hiring, training, supervising, retaining, or terminating of employees other than those employees whose acts he detailed specifically and factually described in his complaint as rendering Ridgeview liable." 786 So. 2d at 1116-117 (emphasis added). In their complaint, the plaintiffs specifically and factually describe the sexual assaults allegedly inflicted upon them by Taylor. Because the plaintiffs have consolidated their claims, it would be impractical, if not impossible, to prevent each plaintiff from discovering information concerning the alleged acts by Taylor against the other plaintiffs. Therefore, contrary to the hospital's assertion, § 6-5-551 does not prohibit each plaintiff from discovering information pertaining to the claims of the other plaintiffs. Accordingly, the hospital has 13 1160706 not shown a clear legal right to have the trial court's discovery order vacated. The hospital finally contends that the trial court exceeded its discretion by denying the hospital's motion for a protective order pursuant to § 22-21-8(b), which provides that "[a]ll accreditation, quality assurance credentialing and similar materials shall be held in confidence and shall not be subject to discovery." As indicated, the plaintiffs' discovery requests included information concerning the hospital's hiring, training, supervision, retention, and dismissal of Taylor, as well as information concerning its investigation into their allegations of sexual assault by Taylor. It is well settled that "the party asserting the privilege under § 22–21–8 has the burden of proving the existence of the privilege and the prejudicial effect of disclosing the information." Ex parte Fairfield Nursing, 22 So. 3d at 448. In support of its motion for a protective order, the hospital offered the affidavit of Cindy Parten, Director of Professional Standards for the hospital, who testified that the discovery the plaintiffs seek is not part of the plaintiffs' medical charts or kept in the ordinary course of 14 1160706 business but, rather, is created as a result of quality- assurance investigations and that the importance of their confidentiality cannot be understated. Specifically, Parten testified: "4. I am knowledgeable concerning the claims set forth in the [present suit brought by the plaintiffs]. I am also knowledgeable as to what information [the hospital] had, if any, as to each Plaintiff and any complaints brought to [the hospital's] attention prior to the current suit being filed. ... More specifically, [the hospital] did engage in investigations with respect to [Taylor] with regard to certain claims made by certain patients in 2015 both prior and subsequent to Mr. Taylor's employment with [the hospital] ending on October 7, 2015. As a result of these investigations, quality assurance reports were generated for both internal purposes within [the hospital] pursuant to its quality assurance process, as well as reports prepared at the request of and submitted to [the hospital's] professional liability insurance carrier with reasonable anticipation of litigation given the nature of the allegations asserted against Mr. Taylor. "5. Quality assurance activities and investigations, regardless of the reason for why they are initiated, are an important and vital process for [the hospital]. They begin prior to an individual beginning employment with [the hospital] in the form of gathering information on that prospective employee to ensure appropriateness and qualifications for the position to be filled. They continue after employment when any issue is raised that could [a]ffect the healthcare being rendered to patients at [the hospital]. The importance of open and honest investigations, including discussions with other employees of [the hospital] regarding 15 1160706 such issues, cannot be understated. It is a vital process that exists to promote the quality and betterment of healthcare at [the hospital]. If quality assurance investigations, and the documents and other materials generated during those investigations, did not remain confidential, then those persons involved in the quality assurance processes would be less inclined to provide candid and open review of the conduct of [hospital] employees involved in patient care. "6. All documents and other materials created during the course of quality assurance investigation are not kept in the ordinary course of business, nor do they become a part of a patient's medical chart. "7. Quality assurance documents and other materials are, obviously, created for quality assurance purposes. The creation of these documents and materials are needed to guarantee quality of care for all patients. "8. I understand that Plaintiffs ... have requested an unprecedented look into the hiring, training, supervision and retention of [Taylor], as well as any complaints [the hospital] received pertaining to Mr. Taylor. I have personal knowledge regarding the discovery for which Plaintiffs seek and the information requested as to [Taylor] falls within the ambit of quality assurance inasmuch as investigations of complaints relative to [Taylor] were conducted within the confidentiality afforded the quality assurance process and were intended for its protection and privacy of patients as well as employees. "9. It is essential that the discovery ... Plaintiffs seek be kept confidential to ensure that [the hospital] can continue to obtain complete and accurate information about the qualifications and conduct of its employees, both prior to employment 16 1160706 and upon initiation of any quality assurance investigation, for the reasons set forth herein." The hospital asserts that Parten's affidavit testimony is almost identical to the testimony of the hospital representative in Ex part Qureshi, 768 So. 2d 374 (Ala. 2000). Qureshi, however, is distinguishable insofar as the plaintiff in that case sued the physician, alleging medical malpractice. The plaintiff also sued the hospital, alleging that it had been negligent in hiring and credentialing the physician. The plaintiff sought discovery from the hospital concerning the physician's application for staff privileges. The hospital objected, claiming that the requested information was privileged under § 22–21–8. In response to the plaintiff's motion to compel, the hospital offered the affidavit of the chairman of its credentialing committee, who testified "that the documents that would be responsive ... were maintained as part of [the hospital's] credentialing file on [the physician]. [The credentialing chairman] further stated that it was essential that the materials gathered by the hospital be kept confidential, so as to ensure that physicians applying for hospital staff privileges would provide complete and accurate information about their qualifications. Moreover, [the credentialing chairman] stated, if the information did not remain confidential then 'physicians and health care institutions from whom materials are requested in the credentialing process would be less 17 1160706 inclined to provide frank and open criticisms of physician applicants where warranted.'" 768 So. 2d at 376 (emphasis added). The instant case does not involve a physician's application for staff privileges, which, as explained in Qureshi, are kept confidential to ensure that physicians applying for staff privileges provide "complete and accurate information about their qualifications." 768 So. 2d at 376. Rather, this case involves former patients of the hospital who were allegedly sexually assaulted by a former employee of the hospital. The hospital has failed to demonstrate that the quality-assurance privilege applies to claims arising out of allegations of sexual acts that are wholly unrelated to medical treatment or that investigations related to allegations of sexual assault are undertaken to improve the quality of patient care. See Ex parte Krothapalli, 762 So. 2d 836 (Ala. 2000)(discussing purpose of peer-review statutes like § 22-21-8). Given the discretion afforded the trial court with respect to discovery matters, we conclude that the hospital has failed to meet its burden of proving the existence of the privilege afforded by § 22-21-8 and the prejudicial effect of disclosing the information the 18 1160706 plaintiffs seek. See Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003)("Discovery matters are within the trial court's sound discretion, and this Court will not reverse a trial court's ruling on a discovery issue unless the trial court has clearly exceeded its discretion."). Conclusion The hospital has failed to demonstrate a clear legal right to the relief sought. Accordingly, its petition for a writ of mandamus is denied. PETITION DENIED. Stuart, C.J., and Bolin, Parker, Main, Wise, and Bryan, JJ., concur. Murdock, J., concurs in part and concurs in the result. Shaw, J., dissents. 19 1160706 MURDOCK, Justice (concurring in part and concurring in the result). I concur in that portion of the main opinion explaining the inapplicability of the limitation on discovery of quality- assurance information under § 22-21-8, Ala. Code 1975. I strongly disagree, however, with both the main opinion and the dissent as to their conclusion that the claims against the Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital ("the hospital") are governed by the Alabama Medical Liability Act, § 6–5–480 et seq., Ala. Code 1975, and § 6–5–540 et seq., Ala. Code 1975 ("the AMLA"). This Court has held that the AMLA does not govern the liability of a health-care provider in relation to conduct that does not involve a deficiency in medical care. See Ex parte Vanderwall, 201 So. 3d 525 (Ala. 2015); Ex parte Altapointe Health Sys., Inc., [Ms. 1160544, Sept. 8, 2017) ___ So. 3d ___ (2017). The central premise of Vanderwall and Altapointe is that the AMLA was crafted by our legislature to govern cases where patients are injured as a result of their medical care. In Vanderwall, this Court expressly rejected the notion that tortious conduct was governed by the AMLA merely because it is committed by a health-care provider, even 20 1160706 if it was committed at a place and time normally associated with the provision of medical care. In so doing, we expressly rejected the place-and-time rule articulated in Mock v. Allen, 783 So. 2d 828 (Ala. 2000), noting that the "when and where" rule from Mock is "not plausible," that such a rule "'does not accord with what is right and just,'" and that Mock was "'wrong when decided.'" Vanderwall, 201 So. 3d at 536 (citations omitted). In Altapointe, this Court described the place-and-time rule from Mock as "discredited" and rejected the appellant's attempt to have us resurrect and apply that rule. I am greatly concerned that both the main opinion and the dissent reflect a contrary view that undermines the central premise and the precedential import of Vanderwall and Altapointe. The main opinion takes the position that a hospital's negligence in hiring or supervising a radiology technician who the hospital knows or should know is a sexual predator may be characterized as "medical negligence" under the AMLA. ___ So. 3d at ___ ("In other words, the hospital asserts that the plaintiffs' claim against it is not a claim alleging sexual assault but, rather, an independent claim of medical 21 1160706 negligence stemming from the hospital's ... alleged negligent and/or wanton hiring, training, supervision, and retention of Taylor. We agree." (emphasis added)). I cannot agree. I am unable to conclude that the claim at issue in this case involves "medical negligence." I therefore cannot conclude that the AMLA governs the disposition or litigation of that claim. It is for this reason, and not for the reasons offered by the main opinion, that I conclude that § 6-5-551, Ala. Code 1975, does not prohibit the plaintiffs from seeking information from the hospital concerning "other incidents" or complaints involving Leland Bert Taylor, Jr. By its terms, the AMLA applies "[i]n any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care." Ala. Code 1975, § 6-5-548 (emphasis added); see also Vanderwall, 201 So. 3d at 533. Likewise, the limitation on discovery under § 6-5-551 of the AMLA applies "[i]n any action for injury, damages, or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care."3 (Emphasis added.) As 3Section 6-5-551 states in relevant part: 22 1160706 we explained in Vanderwall, the "standard of care" referenced in the AMLA is the degree of care that must be used by a health-care provider acting "within the ambit of 'medical treatment' or 'providing professional services.'" Vanderwall, 201 So. 3d at 537. "'[T]he AMLA applies to conduct that is, or that is reasonably related to, the provision of health-care services allegedly resulting in a medical injury. Just as the Alabama Legal Services Liability Act does not apply to every action against a person who is a lawyer, see Cunningham v. Langston, Frazer, Sweet & Freese, P.A., 727 So. 2d 800 (Ala. 1999), the AMLA does not apply to every action against a person who is a doctor, see Thomasson v. Diethelm, 457 So. 2d 397 (Ala. 1984). ... Although Mock's claims arise out of conduct that took place at a time when there was a "In any action for injury, damages, or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, whether resulting from acts or omissions in providing health care, or the hiring, training, supervision, retention, or termination of care givers, the Alabama Medical Liability Act shall govern the parameters of discovery and all aspects of the action. The plaintiff shall include in the complaint filed in the action a detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provider liable to plaintiff and shall include when feasible and ascertainable the date, time, and place of the act or acts." (Emphasis added.) 23 1160706 doctor-patient relationship for the purpose of examination and treatment, see Thomasson, that fact alone cannot subject to the provisions of the AMLA all conduct by the doctor, however unrelated to the provision of medical services.'" Vanderwall, 201 So. 3d at 537 (quoting, "as the correct interpretation of AMLA," Justice Lyons's dissenting opinion in Mock v. Allen, 783 So. 2d 828, 836-37 (Ala. 2000) (emphasis added in Vanderwall)). "In short, the simple fact is that sexual misconduct by a health-care provider toward a patient is not medical treatment, and it does not result in a 'medical injury' as such an injury is understood under the AMLA. The AMLA addresses the provision of medical services to patients and failures to meet the applicable standard of care in providing those services. M.C.'s action against Vanderwall is not concerned with such matters. Accordingly, the trial court did not err in granting M.C.'s motion to compel discovery on the ground that the AMLA does not govern M.C.'s claims against Vanderwall." Vanderwall, 201 So. 3d at 540 (emphasis added); see also Altapointe, ___ So. 3d at ___ ("The gravamen of Avnet's complaint is that Altapointe negligently and wantonly failed to safeguard Hunter from such an attack [assault and battery by another patient]. There are no express allegations of medical negligence. ... Because there is no evidence before us that would permit us to conclude that the assault on Hunter 24 1160706 was somehow linked to the administration of medical care or professional services by Altapointe, we cannot say that the AMLA applies to Avnet's claims."). The clause in § 6-5-551 referencing "the standard of care" is followed by a second, dependent clause. As a dependent clause, the latter clause does not expand the boundaries established in the first clause's reference to "the standard of care." Specifically, § 6-5-551 states that the AMLA applies to a "breach of the standard of care" (clearly a reference to the medical standard of care), before proceeding to state: "whether resulting from acts or omissions in providing health care, or the hiring, training, supervision, retention, or termination of care givers." Thus, the acts to which § 6-5-551 applies, whether "acts or omissions in providing health care" or "the hiring, training, supervision, retention, or termination of care givers," must first involve a breach of the "standard of care," i.e., medical care by a medical caregiver. "Medical care" by a "medical caregiver" is the only type of conduct that triggers the application of the AMLA. 25 1160706 Obviously, a hospital exists to provide medical care. Just as obviously, however, that fact does not make all tortious conduct that occurs in a hospital facility at the hands of one employed by the hospital subject to the limitations imposed by the AMLA. If it did, the AMLA would govern claims for injuries resulting from the negligent mopping of floors by a hospital employee, the negligent installation or maintenance of HVAC equipment by a hospital employee, the negligent maintenance or repair of a doorway threshold by a hospital employee, or the negligent maintenance or repair of a stairway railing by a hospital employee. Indeed, it would apply to claims arising from injuries resulting from such acts of negligence even if such acts were performed by a physician or nurse employed by the hospital, or the more plausible scenario of a hospital-employed physician or nurse -- or radiology technician -- spilling a drink on a hospital floor that causes a third party to slip and fall. The point is that such activities or the hiring or supervision by a hospital of those who engage in such activities does not involve the provision of medical care within the meaning of the AMLA. Disputes over injuries arising from such activities 26 1160706 simply do not involve the type of "care" the legislature was addressing when discussing the "standard of care" in the AMLA. See Ala. Code 1975, § 6-5-540 ("It is hereby declared by the Legislature of the State of Alabama that a crisis threatens the delivery of medical services to the people of Alabama and the health and safety of the citizens of this state are in jeopardy. ... [I]t is the declared intent of this Legislature to insure that quality medical services continue to be available at reasonable costs to the citizens of the State of Alabama. This Legislature finds and declares that the increasing threat of legal actions for alleged medical injury causes and contributes to an increase in health care costs and places a heavy burden upon those who can least afford such increases, and that the threat of such actions contributes to expensive medical procedures to be performed by physicians and other health care providers which otherwise would not be considered necessary, and that the spiraling costs and decreasing availability of essential medical services caused by the threat of such litigation constitutes a danger to the health and safety of the citizens of this state, and that this article should be given effect immediately to help control the 27 1160706 spiraling cost of health care and to insure its continued availability." (emphasis added)); Ala. Code 1975, § 6-5- 549.1(b) ("[I]t is the declared intent of this Legislature to ensure that quality medical services continue to be available at reasonable costs to the citizens of the State of Alabama. The continuing and ever increasing threat of legal actions for alleged medical injury causes and contributes to an increase in health care costs and places a heavy burden on those who can least afford such increases. The threat of such actions contributes to the performance of expensive medical procedures by physicians and other health care providers which otherwise would not be considered necessary. The spiraling cost and decreasing availability of essential medical services caused by the threat of litigation constitutes a danger to the health and safety of the citizens of this state. ... [T]he increasing threat of legal actions for alleged medical injury has resulted in a continuing limitation on the number of physicians providing specialized health care in this state." (emphasis added)). By the same token, the legislature did not purpose to protect physicians from complaints alleging that the physician 28 1160706 has sexually abused a patient. See Vanderwall and Altapointe, supra. By the same token, the legislature did not purpose to protect hospitals from complaints alleging that the hospital negligently hired or negligently supervised a physician who sexually abuses a patient. Such activities do not concern the provision of "medical care" any more than do the other non- medical activities referenced above (involving the maintenance of hospital premises, etc.). To the extent the AMLA concerns hiring, supervision, etc., of caregivers, such concern is solely with the hiring, supervision, etc. of caregivers qua caregivers. The AMLA does not govern the hiring of caregivers who become tortfeasors apart from the provision of medical care. Based on the foregoing, the AMLA is inapplicable to the direct-liability claim (the hospital's allegedly negligent or wanton hiring, training, supervision, or retention of Taylor) in the present case. Sexual molestation has no relation to the provision of medical care, see Vanderwall, 201 So. 3d at 537 ("We do not believe the legislature intended for the protections afforded under the AMLA to apply to health-care providers who are alleged to have committed acts of sexual 29 1160706 assault; such acts do not, by any ordinary understanding, come within the ambit of 'medical treatment' or 'providing professional services.'"), and the AMLA does not address anyone's liability in relation to sexual molestation, whether that of a physician who commits such molestation or of a hospital that negligently hires, trains, supervises, or retains someone who commits such molestation. The AMLA governs liability and related discovery standards only when the plaintiff's alleged injury results from the negligent or wanton provision of medical care; the fact that a health-care provider is named as a defendant is insufficient, in itself, to summon the protections of the AMLA. If a radiology technician sexually molests a patient, the AMLA no more applies to that activity than it does to a hospital-maintenance employee's engaging in that same activity. Likewise, the AMLA no more applies to the hospital's alleged negligent hiring, training, supervision, or retention of that technician vis-à-vis such activity than it does to the hospital's hiring, training, supervision, or retention of the maintenance employee vis-à-vis such activity. 30 1160706 The alleged misdeed of the hospital in the present case does not raise any question as to whether the hospital engaged in sound hiring or supervisory practices in relation to the quality of Taylor's actions as a radiology technician but, rather, whether the hospital engaged in sound hiring and supervisory practices as to a matter unrelated to medical care. The AMLA, including the discovery limitations of § 6-5- 551 and other provisions, therefore is not applicable. To hold otherwise would mean that an AMLA action depends merely on the location and timing of the individual health-care provider's wrongful acts (i.e., whether he or she was on duty in a hospital or a doctor's office), rather than to the type of wrongful acts in which the defendant allegedly engaged.4 4To hold otherwise also would mean that other provisions of the AMLA would be applicable. For example, the plaintiff would be required to present expert testimony from a "similarly situated health care provider" as to the vetting processes used by hospitals for matters unrelated to medical care, including to what degree background checks, criminal and otherwise, must be conducted; to what extent a hospital must require references and contact those references; to what extent a review of social media is required in this day and age, etc. See Ala. Code 1975, § 6-5-548 (expert-testimony requirements). I am unaware of any AMLA action where the AMLA statutory requirement for expert testimony as to the standard of care has been extended to the hiring practices of hospitals as those practices relate to criteria unrelated to the provision of medical services. 31 1160706 Such a holding would not merely erode Vanderwall, it effectively would eviscerate it. Indeed, I posit that if the applicability of the AMLA is not limited to actions involving the services of a caregiver as a caregiver, then Vanderwall was wrongly decided and we are sub silentio overruling it. If we focus solely on the language of the dependent clauses in § 6-5-551 noted above so as to make an AMLA action merely a matter of timing and location of the allegedly wrongful acts, not whether the defendant's acts relate to the "standard of [medical] care," why did we reject that approach as determinative in Vanderwall? See 201 So. 3d at 536 ("[T]he alleged sexual misconduct occurred in the place and during the time that Vanderwall otherwise was engaged in treating M.C. for her back pain. Thus, under the interpretation of the AMLA enunciated in Mock[ v. Allen, 783 So. 2d 828 (Ala. 2000),] and reiterated in O'Rear[ v. B.H., 69 So. 3d 106 (Ala. 2011)], M.C.'s allegation of sexual misconduct would be governed by the proof requirements of the AMLA. We cannot in good conscience, however, continue to adhere to the rule articulated in Mock and O'Rear."). 32 1160706 The dissent acknowledges Vanderwall, but I would argue that the position taken in the dissent is more aligned with the view expressed by its author in his dissent in Vanderwall. See Vanderwall, 201 So. 3d at 542-44 (Shaw, J., dissenting). A similar argument could be made as to the main opinion.5 But, as we have held, it is not merely any negligence of a health-care provider occurring in a health-care setting that triggers the application of the AMLA to that provider or his or her employer. The clearly established rule, at least before today, was simply whether the cause of action concerns "the provision of medical services to [a] patient[] and failures to meet the applicable standard of care in providing those [medical] services." Vanderwall, 201 So. 3d at 540. That rule no longer appears so clear. 5See Altapointe, ___ So. 3d at ___ (Sellers, J., concurring in part and dissenting in part): "I believe that, once it is established that a defendant is a health-care provider, then § 6–5–548, Ala. Code 1975, bars discovery of insurance limits. Notwithstanding that the act that is the subject of litigation may not have been related to the provision of medical services, once a threshold determination is made that the defendant is a health-care provider, insurance limits are not discoverable." (Emphasis added.) 33 1160706 SHAW, Justice (dissenting). I respectfully dissent. In my writing in Ex parte Vanderwall, 201 So. 3d 525 (Ala. 2015), I stated: "In Mock v. Allen, 783 So. 2d 828 (Ala. 2000), this Court rejected the argument that the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5- 540 et seq., Ala. Code 1975 ('the AMLA'), '[did] not apply ... because "[t]he acts of intentional sexual assault of which [the patient] complains were for no medical reason"' and were 'outside the scope of the physician's professional services and did not constitute professional malpractice.' Instead, the rule has been as follows: "'[M]ost of the reported cases where appellate courts have declined to hold that the physician's conduct constituted professional malpractice involved either an intimate sexual relationship or sexual misconduct having no connection with the rendering of professional services. ... "'By contrast, in cases where the alleged sexual misconduct occurs as part of a physician's examination and/or treatment of a patient, the conduct is considered to have occurred during the delivery of professional services, and is therefore cognizable as a medical-malpractice claim. ...' "783 So. 2d at 832-33 (emphasis added)." Ex parte Vanderwall, 201 So. 3d at 542 (Shaw, J., concurring in case no. 1130041 and dissenting in case no. 1130036). 34 1160706 Under Mock v. Allen, 783 So. 2d 828 (Ala. 2000), the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975 ("the AMLA"), would apply in this case. However, this Court in Ex parte Vanderwall sua sponte overruled Mock. The Court stated: "The AMLA addresses the provision of medical services to patients and failures to meet the applicable standard of care in providing those services." Ex parte Vanderwall, 201 So. 3d at 540. The AMLA was not "intended," the Court said, "to apply to health-care providers who are alleged to have committed acts of sexual assault; such acts do not, by any ordinary understanding, come within the ambit of 'medical treatment' or 'providing professional services.'" 201 So. 3d at 537. Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital ("the hospital") does not ask this Court to overrule Ex parte Vanderwall; instead, it argues that, under the rationale of that decision, the AMLA would still apply. In the instant case, the duties allegedly breached by the hospital are stated in the complaint as follows: "[A] duty to the Plaintiffs to properly hire, train, supervise, and retain their employees" and "a duty to protect patients ... from harm 35 1160706 while receiving treatment and care...." These duties of the hospital, by their very nature, are duties that arise in "the provision of medical services to patients." Ex parte Vanderwall, 201 So. 3d at 540. For purposes of this claim, the hospital is not being sued for "committ[ing] acts of sexual assault." I do not read Ex parte Vanderwall as holding that this claim is outside the AMLA. Further, § 6-5-551 appears to indicate that it applies to negligent or wanton hiring, training, and supervision claims against health-care providers even if the conduct challenged did not result from acts or omissions "in providing health care." Section 6-5-551 states, in applicable part: "In any action for injury, damages, or wrongful death ... against a health care provider for breach of the standard of care, whether resulting from acts or omissions in providing health care, or the hiring, training, supervision, retention, or termination of care givers, the Alabama Medical Liability Act shall govern the parameters of discovery and all aspects of the action." (Emphasis added.) See also Ex parte Ridgeview Health Care Ctr., Inc., 786 So. 2d 1112, 1116 (Ala. 2000) ("[Section] 6–5–551 makes it clear that a claim against a health-care provider alleging that it breached the standard of care in hiring, training, supervising, retaining, or terminating its 36 1160706 employees is governed by the Alabama Medical Liability Act."). The plaintiffs also claim that the hospital is vicariously liable for any sexual assault by its former employee, Leland Bert Taylor, Jr. However, "[t]o recover against a defendant under the theory of respondeat superior, it is necessary for the plaintiff ... to establish that the act was done within the scope of the employee's employment." Hendley v. Springhill Mem'l Hosp., 575 So. 2d 547, 550 (Ala. 1990) (plurality opinion). If Taylor was acting within the scope of his employment, as alleged in the complaint, then, by necessity, he was engaged in the "provision of medical services to patients," and the AMLA would apply.6 Thus, as the main opinion concludes, the AMLA applies to the plaintiffs' claims against the hospital. "To be clear, the application of ... the AMLA in no way denies the plaintiff a cause of action or the ability to seek damages for any 6I see nothing indicating that Taylor's employment with the hospital involved providing non-medical services. If Taylor indeed sexually abused patients, then he was not acting in the line and scope of his employment, and the hospital could not be held vicariously liable. Hendley, 575 So. 2d at 551 (holding that alleged sexual abuse by a purported agent of a hospital was an act based on wholly personal motives having no relation to the business and "a gross deviation from the purpose" of the employment). 37 1160706 alleged misconduct by the defendant. Instead ... the plaintiff's claim is litigated pursuant to certain statutorily prescribed substantive and procedural requirements." Ex parte Vanderwall, 201 So. 3d at 542 (Shaw, J., concurring in case no. 1130041 and dissenting in case no. 1130036). When § 6-5- 551 applies, "[a]ny party shall be prohibited from conducting discovery with regard to any other act or omission or from introducing at trial evidence of any other act or omission." The hospital argues in its petition that "each of the Plaintiffs is barred from discovery pertaining to any of the other Plaintiffs." Petition, at 4 (footnote omitted). As the main opinion notes, under the unusual facts of this case-- there are four plaintiffs and evidence regarding acts related to one plaintiff will, by necessity, be received by the others--"it would be impractical, if not impossible, to prevent each plaintiff from discovering information concerning the alleged acts by Taylor against the other plaintiffs." ___ So. 3d at ___. The discovery restrictions of § 6-5-551 do not seem to anticipate a scenario where multiple plaintiffs have joined their claims in this manner and thus, by necessity, receive the same discovery. However, we have held that § 6-5- 38 1160706 551 essentially precludes a joint action by multiple plaintiffs in the first place: "[Section] 6-5-551 necessarily removes from the trial court any discretion to allow the introduction, in the trial of [one plaintiff's] claims, of any evidence of [a defendant's] alleged wrongful acts and omissions as to [a co-plaintiff], whether with or without limiting instructions. ... If both sets of plaintiffs are allowed to prosecute their claims in the same trial, a violation of § 6-5-551 is unavoidable." Ex parte Brookwood Med. Ctr., 994 So. 2d 264, 268 (Ala. 2008).7 I agree with the main opinion, however, that the instant petition "has not cited any authority for its argument that the AMLA's 'other acts or omissions' language would preclude plaintiffs who have filed a joint complaint from engaging in discovery related to the same employee by whom they were all victimized." ___ So. 3d at ___. However, the petition also challenges the plaintiffs' discovery requests related to wrongdoing by Taylor in regard to other patients, namely, 7The hospital previously petitioned this Court for mandamus review of the trial court's denial of a motion to sever; that petition was denied. Ex parte Tombigbee Healthcare Auth. d/b/a Bryan W. Whitfield Mem'l Hosp. (No. 1160707, June 30, 2017) (unpublished order). However, "the denial of relief by mandamus does not have res judicata effect." Cutler v. Orkin Exterminating Co., 770 So. 2d 67, 69 (Ala. 2000). Thus, this issue will likely arise again. 39 1160706 patients who are not the plaintiffs. The hospital's motion for a protective order stated: "Plaintiffs ... propounded their First Interrogatories to [the hospital] and therein sought expansive discovery as to [the hospital’s] knowledge, and any actions it took, relating not only to Plaintiffs['] ... underlying allegations of wrongdoing as to co-Defendant Taylor, but as to any other individual who was allegedly assaulted by Taylor. "...[The hospital] provided its responses to the aforementioned discovery and asserted appropriate objections to those discovery requests that sought to conduct discovery in violation of Ala. Code §§ 6-5-551 and 22-21-8." (Emphasis added.) The hospital states in its petition to this Court: "This Petition for Mandamus concerns [the hospital's] Motion for Protective Order as to the Plaintiffs' discovery requests seeking information regarding the hiring, training, supervision and retention of Defendant Taylor as well as any complaints the Hospital received pertaining to Taylor. [Section] 6-5-551, Code of Alabama (1975) prohibits discovery of acts of omissions relating to patients other than the patient who has brought the claim. As each of the Plaintiffs is not entitled to discovery regarding the complaints of the other Plaintiffs, the Hospital's Motion for Protective Order should have been granted." Petition, at 2 (emphasis added). The challenge in the petition to "any" discovery regarding complaints about Taylor by persons other than the 40 1160706 plaintiffs is not a model of clarity; the petition is mainly directed toward challenging the fact that each plaintiff will receive discovery regarding the other plaintiffs. However, the issue was raised in both the motion for a protective order and in this Court. I would grant the petition and instruct the trial court that the discovery restrictions in § 6-5-551 applied to the plaintiffs' discovery requests regarding any individual other than the plaintiffs who was allegedly assaulted by Taylor. I also respectfully dissent from the main opinion's holding that Ala. Code 1975, § 22-21-8(b), is inapplicable in this case. That Code section states: "All accreditation, quality assurance credentialling and similar materials shall be held in confidence and shall not be subject to discovery or introduction in evidence in any civil action against a health care professional or institution arising out of matters which are the subject of evaluation and review for accreditation, quality assurance and similar functions, purposes, or activities." The Code section provides that "all" quality-assurance materials are protected in "any" civil action; it does not provide an exception for quality-assurance materials related to an alleged sexual assault by a hospital employee against a patient. It is undisputed that the hospital investigated the 41 1160706 allegations against Taylor and produced certain quality- assurance reports as a result of that investigation. The affidavit of Cindy Parten, quoted in the main opinion, makes clear that the information requested by the plaintiffs "'falls within the ambit of quality assurance inasmuch as investigations of complaints relative to [Taylor] were conducted within the confidentiality afforded the quality assurance process and were intended for its protection and privacy of patients as well as employees.'" ___ So. 3d at ___. She further testified that "'[i]t is essential that the discovery ... Plaintiffs seek be kept confidential to ensure that [the hospital] can continue to obtain complete and accurate information about the qualifications and conduct of its employees, both prior to employment and upon initiat[ion] of any quality assurance investigation.'" ___ So. 3d at ___. It appears to me that discoverable materials gathered for quality-assurance purposes regarding Taylor are protected by § 22-21-8(b). I would grant the petition and issue a writ of mandamus directing the trial court to enter a protective order regarding those materials. I thus respectfully dissent. 42

December 15, 2017

16a0dd70-5068-4698-8841-6c7f86f6b7f3

Hill v. Chambless

757 So. 2d 409

1980718

Alabama

Alabama Supreme Court

757 So. 2d 409 (2000) Angela Nadine Bailey HILL, as Administrator of the Estate of Edwin Roy Bailey, Sr., deceased v. Richard CHAMBLESS and Lawrence Keith Harvey. 1980718. Supreme Court of Alabama. January 21, 2000. Dennis R. Weaver of Cory, Watson, Crowder & DeGaris, Birmingham, for appellant. James B. Rossler of Stout & Rossler, Mobile, for appellee Richard Chambless. W. Austin Mulherin III and Marcus E. McDowell of Frazer, Greene, Upchurch & Baker, L.L.C., Mobile, for appellee Lawrence Keith Harvey. MADDOX, Justice. The parties raise the question whether two defendant police officers of the City of Mobile were immune, under the doctrine of qualified immunity, from liability on the plaintiffs claim that they had violated the civil rights of the plaintiffs intestate. The plaintiff says her intestate died as a result of injuries he sustained as he was being arrested by the two officers. We do not reach this question, however, because of a procedural problem. The summary judgment for the defendant officers must be reversed and the case remanded because the trial judge failed to comply with the procedures set out in Rule 56, Ala. R. Civ. P., for entering a summary judgment. Specifically, the trial judge set the motion down for a hearing on a specific date, but ruled on the motion without allowing the *410 opposing party an opportunity to timely file a response to the motion as provided by Rule 56. Angela Nadine Bailey Hill, as administrator of the estate of Edwin Roy Bailey, Sr., filed several claims, pursuant to 42 U.S.C. § 1983, against Richard Chambless and Lawrence Keith Harvey, police officers employed by the City of Mobile, alleging that they had violated Bailey's civil rights on the night they arrested him, and that the violations ultimately caused his death. The evidence tends to show that while officers Chambless and Harvey were on duty on the night of October 8, 1995, they were separately dispatched to 1856 Duvall Street in response to a report that an intoxicated person was in the roadway. Duvall Street has three lanes. One lane runs eastbound and one runs westbound; the third lane separates the other two and functions as a protected turn lane. When the officers arrived at the scene, they parked their vehicles in the turn lane facing east. Each car flooded the area with light generated by its headlamps and flashing blue lights. These lights remained on after the officers had exited their vehicles. Chambless and Harvey approached Edwin Roy Bailey, Sr., who was sitting on the curb. The officers described Bailey as being incoherent and intoxicated to the point that he had urinated on himself. Based on what they saw, the officers concluded that Bailey was endangered by his level of intoxication, and should be arrested for public intoxication. Bailey, unable to walk to the police cars, crawled toward one of the cars on his hands and knees without the assistance of either officer until he was struck and injured by a passing motor vehicle. That vehicle was driven by Barry Larson, Jr., who was arrested and was found to have a 0.182% bloodalcohol content.[1] Chambless and Harvey narrowly escaped injury to themselves, by stepping out of the way. Larson's vehicle skidded for nearly 15 feet and hit Bailey twice before coming to a stop. Bailey was hospitalized that night for the injuries he suffered in the accident, but he was released that same night. Weeks later, however, on November 2, 1995, he died as a result of meningitis secondary to a skull fracture and blunt-force injuries to the head that he had received when he was struck by Larson's automobile. On October 6, 1997, Hill, as administrator of Bailey's estate, sued the City of Mobile; its mayor, Michael C. Dow; and five police officers, including Chambless and Harvey. She sought damages under 42 U.S.C. § 1983 for alleged constitutional violations. She claimed that the police officers, in arresting Bailey, had acted with deliberate indifference to his safety and had thereby violated his constitutional rights. She alleged no claim under state law. Ultimately, only Chambless and Harvey remained as defendants. All other defendants had been dismissed or had received summary judgments. Chambless and Harvey, in their answer, asserted that they enjoyed qualified immunity from an action filed under the provisions of § 1983, and they subsequently filed motions for summary judgment on this ground. On December 7, 1998, the trial court set these motions for a hearing on December 30, 1998; on December 22, 1998, however, the court granted Chambless's motion for a summary judgment. Hill did not respond to either motion until December 28, 1998, six days after the trial court had ruled on Chambless's motion; consequently, the only matter before the trial court at the time of the scheduled *411 December 30 hearing was Harvey's summary-judgment motion. The court granted that motion on January 8, 1999. We address only one issue: Did the trial court, having set a date for a hearing on Chambless's motion, err in ruling on that motion without affording Hill, the nonmoving party, the opportunity to timely file a response? We hold that, pursuant to Ala. R. Civ. P. 56(c)(2),[2] once a trial court sets a date for a hearing on a summary-judgment motion, the court must allow the nonmoving party an opportunity to respond, an opportunity extending until a date two days before the date set for the hearing. Rule 56(c)(2) establishes the notice requirement for summary-judgment motions. In order to ensure that an opposing party has a meaningful opportunity to respond, this rule requires that the trial court must allow a minimum of 10 days to pass between the date the hearing is set and the date of the actual hearing, unless the parties agree otherwise. See Rule 56(c)(2), Ala. R. Civ. P.; Hilliard v. South-Trust Bank of Ala., 581 So. 2d 826, 828 (Ala.1991) ("We have held, because of due process considerations, that [the provision of Rule 56(c)(2) stating that the summary-judgment motion `shall be served at least ten (10) days before the time fixed for the hearing'] is not to be applied literally, but that it will be applied to require a minimum of 10 days between the date the hearing is set and the date of the hearing."). In applying the provisions of Rule 56(c), trial courts are given limited discretion. Kelly v. Harrison, 547 So. 2d 443, 445 (Ala.1989). In fact, this Court has stated that a trial court may, within its discretion, dispense with the hearing altogether and rule on the motion without any further proceedings. See Pate v. Rollison Logging Equip., Inc., 628 So. 2d 337, 341 (Ala.1993). But once a hearing is set, the requirements of procedural due process change accordingly. Because Rule 56(c)(2) specifically provides that a nonmoving party has until two days before the date of the hearing to file "any statement or affidavit in opposition" to the motion, we conclude that the trial court erred by ruling eight days before the date of the scheduled hearing. Rule 1(c), Ala. R. Civ. P., mandates that the Rules of Civil Procedure be construed to "secure the just, speedy and inexpensive determination of every action." Applying the provisions of that rule to the facts of this case, we conclude that a nonmoving party has a right to expect that a trial judge, having set a date for a hearing on a summary-judgment motion, will not issue a ruling before that party has had an opportunity to timely respond to the motion.[3] Consequently, the only just decision *412 is to reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion. The procedural defect requires that we reverse the summary judgment for Chambless; however, because the claims against Chambless and Harvey are so closely interrelated, we think the more prudent course is to reverse as to both defendants. We express no view at this time on the substantive issues pertaining to either defendant's summary judgment, and our order of reversal and remand should not be construed by the trial court or the parties as an expression on the merits of this appeal. REVERSED AND REMANDED. HOOPER, C.J., and HOUSTON, COOK, SEE, LYONS, BROWN, and JOHNSTONE, JJ., concur. ENGLAND, J., concurs in the result. [1] Larson was charged with assault in the first degree. That charge, however, was subsequently nol-prossed on a motion by the State. [2] Rule 56(c)(2) reads: "The motion for summary judgment, with all supporting materials, including any briefs, shall be served at least ten (10) days before the time fixed for the hearing, except that a court may conduct a hearing on less than ten (10) days' notice with the consent of the parties concerned. Subject to subparagraph (f) of this rule, any statement or affidavit in opposition shall be served at least two (2) days prior to the hearing." [3] For purposes of clarity, we emphasize that the trial court, having scheduled a hearing on a motion for summary judgment, may rule on the motion without waiting for the hearing date, if the opposing party has not responded within the time allowed by Rule 56(c)(2). In Mardis v. Ford Motor Credit Co., 642 So. 2d 701 (Ala.1994), the nonmoving party requested and received an additional 14 days to file a response in opposition to the summary-judgment motion. The nonmoving party misunderstood the trial judge's order, thinking that the 14-day extension ran from a later date rather than from the date on which it was given. The trial judge granted the summary-judgment motion at a point based on the earlier date, before the nonmoving party had responded. We affirmed, holding that the opposing party had been provided a meaningful opportunity to respond. 642 So. 2d at 705-06. In that case, however, the trial court ruled on the date of the scheduled hearing, not before it, and the opposing party completely failed to file a response.

January 21, 2000

d254177b-3497-4723-90e2-62ea6e5c9032

Craig J. Payne v. Alabama State University, et al.

N/A

1160733

Alabama

Alabama Supreme Court

Rel: December 8, 2017 STATE OF ALABAMA -- JUDICIAL DEPARTMENT THE SUPREME COURT OCTOBER TERM, 2017-2018 1160733 Craig J. Payne v. Alabama State University et al. (Appeal from Montgomery Circuit Court: CV-15-901754). MAIN, Justice. AFFIRMED. NO OPINION. See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P. Stuart, C.J., and Bolin, Murdock, and Bryan, JJ., concur.

December 8, 2017

c511655c-8327-4d0e-a526-7f03729371b7

Ex parte Liberty Rent Guarantee, LLC.

N/A

1161057

Alabama

Alabama Supreme Court

IN THE SUPREME COURT OF ALABAMA December 15, 2017 1161057 Ex parte Liberty Rent Guarantee, LLC. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Liberty Rent Guarantee, LLC v. Benjamin Terner, et al.) (Baldwin Circuit Court: CV-17-900191). ORDER The petition for writ of mandamus in this cause is denied. SELLERS, J. - Stuart, C.J., and Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. I, Julia Jordan Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said Court. Witness my hand this 15th day of December, 2017. /ra

December 15, 2017

d47b565a-5c9f-47bc-af84-39fb449b9d97

Ex Parte Mason

768 So. 2d 1008

1971489

Alabama

Alabama Supreme Court

768 So. 2d 1008 (2000) Ex parte Derrick O'Neal MASON. (Re Derrick O'Neal Mason v. State). 1971489. Supreme Court of Alabama. April 7, 2000. *1010 Bruce A. Gardner of Hamilton & Gardner, Huntsville, for petitioner. Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for respondent. JOHNSTONE, Justice.[1] A Madison County jury convicted Derrick O'Neal Mason of capital murder committed during the course of a robbery in the first degree or an attempt thereof. By a vote of 10 to 2, the jury recommended that Mason be sentenced to death. The trial court followed the recommendation of the jury and sentenced Mason to death. In a unanimous decision, the Court of Criminal Appeals affirmed Mason's conviction and sentence. Mason v. State, 768 So. 2d 981 (Ala.Crim.App.1998). On certiorari review, we affirm. The thorough and scholarly opinion of the Court of Criminal Appeals expressly addresses the issues raised by the petitioner now before us. Our independent review of the record reveals no further arguable issues. While we agree with the result on every issue addressed by the Court of Criminal Appeals, we will address the rationale on some of these issues. The opinion of the Court of Criminal Appeals supplies the facts of this crime. We will detail further facts only to the extent necessary to discuss particular issues. At trial the defendant-petitioner did not preserve for review any of the issues we will discuss. Thus the issues will be considered under the "plain-error" rule. "`"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. 1983) (quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981)). See also Ex parte Woodall, 730 So. 2d 652 (Ala. 1998). "`In other words, the plain-error exception to the contemporaneous objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."'" Ex parte Land, 678 So. 2d 224, 232 (Ala.1996) (quoting United States v. Young, 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985) (quoting United States v. Frady, 456 U.S. *1011 152, 163, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982))). This Court may take appropriate action when the error "has or probably has adversely affected the substantial rights of the petitioner." Rule 39(k), Ala. R.App. P. "[A] failure to object at trial, while not precluding our review, will weigh against any claim of prejudice." Ex parte Woodall, 730 So. 2d at 657 (citing Kuenzel v. State, 577 So. 2d 474 (Ala.Crim.App.1990), aff'd, 577 So. 2d 531 (Ala.), cert denied, 502 U.S. 886, 112 S. Ct. 242, 116 L. Ed. 2d 197 (1991)). In arguing to the jury, the assistant prosecutor prefaced many of her statements with such expressions as "I believe" and "I think," without objection by the defense. The petitioner now argues that the assistant prosecutor was thereby arguing matters outside the record. Because the substance of the assistant prosecutor's statements was supported by evidence introduced during the trial, the comments were not objectionable as references to matters outside the record. Such first-person prefaces as "I believe" and "I think" should, however, be avoided inasmuch as they may be construed as the advocate's personal voucher for the truth of the evidence, an improper practice. See Woods v. State, 19 Ala.App. 299, 97 So. 179 (1923), rev'd on other grounds, 20 Ala.App. 200, 101 So. 314 (1924), aff'd, 21 Ala.App. 436, 109 So. 171 (1926); and Arthur v. State, 575 So. 2d 1165 (Ala.Crim.App.1990). But see Williams v. State, 710 So. 2d 1276 (Ala. Crim.App.1996), aff'd, 710 So. 2d 1350, cert. denied, 524 U.S. 929, 118 S. Ct. 2325, 141 L. Ed. 2d 699 (1998); and Coral v. State, 628 So. 2d 988 (Ala.Crim.App.1992), aff'd, 628 So. 2d 1004 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S. Ct. 1387, 128 L. Ed. 2d 61 (1994). In the particular case before us, the assistant prosecutor's continual use of these first-person prefaces tends to diminish the force of her argument rather than to increase it. The evidence in this case was so emotionally compelling that its impact would have been greater had it been argued as established fact instead of personal belief. Thus, in the context of the particular facts of this case, the use of these first-person prefaces did not prejudice the defendant, much less prejudice him enough to entitle him to relief under the plain-error rule. See e.g. Williams, supra; Ex parte Rieber, 663 So. 2d 999 (Ala.1995), cert. denied, 516 U.S. 995, 116 S. Ct. 531, 133 L. Ed. 2d 437 (1995); and United States v. Young, 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985). The petitioner complains that the trial court allowed the State, without objection from the defendant, to elicit testimony from the investigating officer recounting out-of-court declarations by an informant incriminating the defendant. The out-of-court declarations included an identification of the murder weapon, a description of the defendant, the name of the defendant, and a statement that the defendant was "out of control" and that he was "trying to make a name for himself and that he was involved in this homicide." The petitioner further complains that the trial court allowed the assistant prosecutor to argue, without objection by the defendant, that, "you must simply take, because it has been held admissible, the information that the confidential informant provided, as a matter of law." The informant's out-of-court declarations had been offered, without objection, for the dubious purpose of showing why the officer conducted his investigation and expressly not for the purpose of proving the truth of the matter stated. Likewise, the trial court had admitted this testimony expressly subject to these limitations. The out-of-court declarations would have been inadmissible hearsay for the truth of the matter stated. Rule 801 C; C. Gamble, McElroy's Alabama Evidence, § 242.01(2) (5th ed. 1996). Thus, to the extent that the assistant prosecutor's remarks can be construed as arguing the out-of-court declarations for the truth of *1012 the matter stated, the argument was improper. Neither the admission of the testimony about the informant's out-of-court declarations nor the prosecutor's argument about them can work a reversal, however, unless the defendant suffered enough prejudice to meet the standards of the plain-error rule. Rule 45, Ala. R.App. P. Moreover, the plain-error rule does not entitle a defendant to relief if reasonable trial tactics or strategy could account for the defendant's not interposing an objection or otherwise preserving the matter for review. Hallford v. State, 629 So. 2d 6 (Ala.Crim.App.1992), cert. denied, 511 U.S. 1100, 114 S. Ct. 1870, 128 L. Ed. 2d 491 (1994); Luke v. State, 484 So. 2d 531 (Ala. Crim.App.1985). We judge the reasonableness of such tactics or strategy from the circumstances as they would have been perceived by the defense at the time for preserving error rather than at a later time in hindsight. Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Duren v. State, 590 So. 2d 360, 362 (Ala.Crim.App.1990), aff'd, 590 So. 2d 369 (Ala.1991), cert. denied, 503 U.S. 974, 112 S. Ct. 1594, 118 L. Ed. 2d 310 (1992); Falkner v. State, 586 So. 2d 39 (Ala.Crim.App.1991). The defense may have intentionally allowed the admission of the out-of-court declarations of the informant in order to reap the mitigating benefit of the informant's statement that the defendant was "out of control." Indeed, at the sentencing phase, the defense did argue the sixth statutory mitigating factorthat "[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired." (Emphasis added.) Section 13A-5-51, Ala.Code 1975. Moreover, rulings by the trial court either excluding the informant's out-of-court declarations or prohibiting the prosecutor's argument regarding the declarations could not have substantially increased the likelihood of either an acquittal or a life-with-out-parole recommendation. The State's evidence against the defendant was chiefly that the authorities had seized the murder weapon from the defendant's possession and that the defendant had given a detailed confession describing not only the murder itself but also the defendant's bizarre and cruel conduct culminating in the murder. Two police officers observed and heard the confession and recounted it to the jury with enough consistency to impart great credibility to their testimony and, indeed, just enough inconsistency in some details to prevent their testimony from being suspect as the product of improper collaboration. The out-of-court declarations by the informant pale into insignificance in comparison with this other damning evidence. Furthermore, the trial judge expressly instructed the jury not to consider the informant's out-of-court declarations for the truth of the matter stated. Thus we do not find prejudice that would warrant relief under the plain-error rule. The defendant complains that the trial court allowed the prosecutor to argue, without objection, that the prosecutor and the assistant prosecutor represented not only the jurors but also "in some way" the defendant himself. These statements were improper and objectionable. Had the defendant objected, the trial court would have been obliged to sustain the objections and to take curative action. In context, however, the essence of the prosecutor's argument was that, because he represented everybody in the community, he owed duties not only to prosecute the case vigorously but also to treat the defendant fairly. This description of his duties was correct. Davis v. State, 494 So. 2d 851, 853 (Ala.Crim.App.1986); Sprinkle v. State, 368 So. 2d 554, 561 (Ala. Crim.App.1978), writ quashed, 368 So. 2d 565 (Ala.1979); Gallant v. State, 167 Ala. 60, 63, 52 So. 739, 741 (1910). In context, this argument does not warrant relief under the plain-error rule. *1013 The petitioner further complains that the trial court allowed the prosecutor to argue, without objection, and entirely outside the record, that identifiable fingerprints could be recovered in only "one out of twenty or twenty-five cases." The purpose of this argument was obviously to refute the defendant's argument that an absence of his identifiable fingerprints at the scene of the crime indicated that he had not been present. Of course, the prosecutor's resort to fingerprint statistics entirely outside the record was improper. Had the defendant objected, the trial judge would have been obliged to sustain the objection. Smith v. State, 588 So. 2d 561 (Ala.Crim.App.1991); Brown v. State, 374 So. 2d 391 (Ala.Crim. App.), aff'd, 374 So. 2d 395 (Ala.1979). Indeed, the trial judge did, on a number of occasions, instruct the jurors generally that the arguments of counsel did not constitute evidence and that the jurors should not consider the arguments as evidence. Here again, the question is whether the improper argument prejudiced the defendant enough to warrant relief under the plain-error rule. Without the prosecutor's fingerprint statistic argument outside the record, would the jurors have been substantially more likely to conclude that the absence of fingerprints identifiable as the defendant's at the scene of the crime exonerated him? His confession and his possession of the murder weapon eclipse any such likelihood. Finally, the petitioner complains that the trial court allowed the prosecutor to argue, without objection, in pertinent part: The prosecutor's comments about the number of statements taken and the number of convictions obtained by Detective Parker in other cases were completely outside the record and were, accordingly, improper and objectionable. Smith, supra; Brown, supra. By this argument, the prosecutor sought to bolster the credibility of Detective Parker's testimony recounting the defendant's confession. As already discussed, however, Detective Parker's testimony about the confession had already been corroborated by the consistent testimony of another officer, Lisa Hamilton. Moreover, as already discussed, the trial court instructed the jury, upon a number of occasions, that the arguments of counsel did not constitute evidence and the jurors should not consider counsel's arguments as evidence. Thus, here again, the improper argument does not warrant relief under the plain-error rule. We find no error to reverse affecting either the jury verdict finding the defendant guilty or the jury verdict recommending the death penalty. Moreover, we agree with the Court of Criminal Appeals in its findings and its analysis regarding the propriety of the death sentence imposed by the trial court. Therefore, the judgment of the Court of Criminal Appeals is affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, and ENGLAND, JJ., concur. *1014 BROWN, J., recuses herself.[2] [1] Although Justice Johnstone was not a member of this Court when this case was orally argued, he has listened to the audiotape of oral argument. [2] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

April 7, 2000

0c9977a1-2f00-4019-9aa6-77b8cd0870ce

Ex parte Shaundalyn N. Elliott.

N/A

1160941

Alabama

Alabama Supreme Court

Rel: December 22, 2017 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2017-2018 ____________________ 1160941 ____________________ Ex parte Shaundalyn N. Elliott PETITION FOR WRIT OF MANDAMUS (In re: Shaundalyn N. Elliott v. Allstate Insurance Company) (Lowndes Circuit Court, CV-17-900017) MAIN, Justice. Shaundalyn Elliott petitions this Court for a writ of mandamus directing the Lowndes Circuit Court to vacate its 1160941 order transferring this case to the Montgomery Circuit Court. We grant the petition and issue the writ. I. Facts and Procedural History On June 11, 2014, Elliott, a resident of Montgomery County, was injured in an automobile accident in the City of Hayneville in Lowndes County. On February 23, 2017, Elliott filed this lawsuit in the Lowndes Circuit Court against her automobile insurer, Allstate Insurance Company ("Allstate"), seeking uninsured-motorist benefits related to the accident. Elliot alleged that the accident was caused by a "phantom driver," whose location is unknown. On March 16, 2017, Allstate filed a motion to transfer the action from the Lowndes Circuit Court to the Montgomery Circuit Court. The motion stated: "1. This is a breach of contract action wherein [Elliott] claims uninsured motorist insurance policy benefits against Allstate. "2. [Elliott] is presently and was at the time of the motor vehicle accident in question a resident of Montgomery County, Alabama (see Complaint). "3. Allstate is presently and was at the time of the incident in question a foreign corporation with [its] principal place of business in the State of Illinois. 2 1160941 "4. The Allstate insurance policy in question was entered into and issued to [Elliott] by Allstate in Montgomery County, Alabama. ... "5. Upon information and belief, Allstate states that all medical treatment which [Elliott] claims is related to the accident in question occurred in Montgomery County, Alabama. Further, Allstate does business by agent in Montgomery County, Alabama. "6. Additionally, pursuant to the provisions of § 6-3-21.1, [Ala. Code 1975,] this action is due to be transferred to the Circuit Court for Montgomery County, Alabama, for the convenience of the parties and witnesses and/or in the interest of justice. The only nexus to Lowndes County, Alabama, is that the accident in question occurred in Lowndes County, Alabama." Attached to the motion was the affidavit of Suzanne Lowe, the insurance agent who issued the policy to Elliott. Lowe attested that the Allstate policy was issued to Elliott in Montgomery County. Elliott filed a response to the motion for a change of venue. In her response, Elliott argued that because the accident and her injuries occurred in Lowndes County, Lowndes County, which has a strong connection to the action, is a proper venue under § 6-3-7, Ala. Code 1975. She noted that the accident was investigated by a City of Hayneville police officer. Citing prior precedent of this Court, Elliott argued 3 1160941 that there was a strong nexus between the action and Lowndes County so that transferring the action to Montgomery County pursuant to § 6-3-21.1, Ala. Code 1975, would be improper. She further noted that Allstate had provided no evidence indicating that any party or witness would be inconvenienced by a trial in Lowndes County. Following a brief hearing on the motion, the trial court, on June 23, 2017, granted Allstate's motion for a change of venue. Elliott then filed this petition. II. Standard of Review "'The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297, 302 (Ala. 1986). "Mandamus is a drastic and extraordinary writ, to be issued only where 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 Integon Corp., 672 So. 2d 497, 499 (Ala. 1995). "When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court [exceeded] its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner." Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So. 2d 932, 936 (Ala. 1995).'" 4 1160941 Ex parte Southeast Alabama Timber Harvesting, LLC, 94 So. 3d 371, 373 (Ala. 2012) (quoting Ex parte National Sec. Ins. Co., 727 So. 2d 788, 789 (Ala. 1998)). III. Analysis Elliott argues that the trial court erred in transferring this case to the Montgomery Circuit Court. As an initial matter, we note that, as the site of the underlying accident, it is undisputed that Lowndes County is a proper venue for this case. See § 6-3-7(a)(1), Ala. Code 1975 ("All civil actions against corporations may be brought ... [i]n the county in which a substantial part of the events or omissions giving rise to the claim occurred ...."). We further recognize that venue would also be proper in Montgomery County. See § 6-3-7(a)(3), Ala. Code 1975 ("All civil actions against corporations may be brought ... [i]n the county in which the plaintiff resided ...."). Alabama's forum non conveniens statute permits the transfer of a civil action from one appropriate venue to another "for the convenience of parties and witnesses, or in the interest of justice." The statute provides, in pertinent part: "(a) With respect to civil actions filed in an appropriate venue, any court of general jurisdiction 5 1160941 shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein." § 6-3-21.1(a), Ala. Code 1975. "'A defendant moving for a transfer under § 6-3-21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties and witnesses or based on the interest of justice.'" Ex parte Southeast Alabama Timber Harvesting, LLC, 94 So. 3d at 373 (quoting Ex parte National Sec. Ins. Co., 727 So. 2d at 789). Furthermore, "'[w]hen venue is appropriate in more than one county, the plaintiff's choice of venue is generally given great deference.'" Ex parte J&W Enters., LLC, 150 So. 3d 190, 194 (Ala. 2014) (quoting Ex parte Perfection Siding, Inc., 882 So. 2d 307, 312 (Ala. 2003)). As to the "convenience of the parties" prong of § 6-3- 21.1, this Court has held that a trial court should not grant a motion for a change of venue unless the defendant's proffered forum is "'"'"significantly more convenient" than the forum in which the action is filed.'"'" Ex parte First Tennessee Bank Nat'l Ass'n, 994 So. 2d 906, 909 (Ala. 2008)(quoting Ex parte Bloodsaw, 648 So. 2d 553, 555 (Ala. 6 1160941 1994), quoting in turn Ex parte Johnson, 638 So. 2d 772, 774 (Ala. 1994), quoting in turn Ex parte Townsend, 589 So. 2d 711, 714 (Ala. 1991)). Elliott argues that Allstate did not meet its burden of establishing that a change of venue is appropriate under the convenience-of-the-parties prong. In its brief before this Court, Allstate makes no argument concerning the convenience-of-the-parties prong of § 6-3-21.1 and concedes that the only issue is whether the case is due to be transferred "in the interest of justice." Thus, we agree with Elliott that the convenience-of-the-parties prong of the forum non conveniens statute does not support transfer of the case to Montgomery County. Next, we turn to the interest-of-justice prong of § 6-3- 21.1. This Court has stated: "The 'interest of justice' prong of § 6–3–21.1 requires '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.' Ex parte National Sec. Ins. Co., 727 So. 2d [788,] 790 [(Ala. 1998)]. Therefore, 'in analyzing the interest-of-justice prong of § 6–3–21.1, this Court focuses on whether the "nexus" or "connection" between the plaintiff's action and the original forum is strong enough to warrant burdening the plaintiff's forum with the action.' Ex parte First Tennessee Bank Nat'l Ass'n, 994 So. 2d 906, 911 (Ala. 2008). Additionally, this Court has held that 'litigation should be handled in the forum where the 7 1160941 injury occurred.' Ex parte Fuller, 955 So. 2d 414, 416 (Ala. 2006). Further, in examining whether it is in the interest of justice to transfer a case, we consider 'the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.' Ex parte Smiths Water & Sewer Auth., 982 So. 2d 484, 490 (Ala. 2007)." Ex parte Indiana Mills & Mfg., Inc., 10 So. 3d 536, 540 (Ala. 2008). Elliott argues that because the accident that caused her injuries occurred in Lowndes County, Lowndes County has a strong connection to this case, so that the interest of justice should not override her choice of forum. Indeed, although we have cautioned that it is not a talisman, this Court has stated that where the injury occurred is "often assigned considerable weight in an interest-of-justice analysis." Ex parte Wachovia, 77 So. 3d 570, 574 (Ala. 2011). Our recent cases bear out this principle. See, e.g., Ex parte Tier 1 Trucking, LLC, 222 So. 3d 1107 (Ala. 2016); Ex parte Wayne Farms, LLC, 210 So. 3d 586 (Ala. 2016); Ex parte Quality Carriers, Inc., 183 So. 3d 937 (Ala. 2015); Ex pate Manning, 170 So. 3d 638 (Ala. 2014); Ex parte Morton, 167 So. 3d 295 (Ala. 2014); Ex parte State Farm Mut. Auto. Ins. Co., 149 So. 8 1160941 3d 1082 (Ala. 2014); Ex parte Southeast Alabama Timber Harvesting, LLC, 94 So. 3d 371 (Ala. 2012). Nevertheless, "the location where the accident occurred ... is not, and should not be, the sole consideration for determining venue under the 'interest of justice' prong of 6-3-21.1." J&W Enters., 150 So. 3d at 196-97. Allstate, on the other hand, argues that Montgomery County has a strong connection to the lawsuit because: (1) Elliott resides in Montgomery County; (2) Elliott was treated for her injuries in Montgomery County; (3) Allstate does business by agent in Montgomery County; and (4) the insurance policy made the basis of Elliott's claims against Allstate was issued in Montgomery County. Even accepting Allstate's contention that Montgomery County has a "strong" connection to this action, we note that Allstate must also demonstrate that Lowndes County has a "weak" or "little" connection to the action. As we have explained: "Our forum non conveniens analysis has never involved a simple balancing test weighing each county's connection to an action. Rather, to compel a change of venue under the 'interest of justice' prong of § 6–3–21.1, the county to which the transfer is sought must have a 'strong' nexus or connection to the lawsuit, while the county from which the transfer is sought must have a 'weak' or 9 1160941 'little' connection to the action. This inquiry necessarily depends on the facts of each case." J&W Enters., 150 So. 3d at 196. In contending that Lowndes County has "little" connection to this action, Allstate relies primarily on our decision in J&W Enterprises. In that case, the plaintiff was injured in an automobile accident in Mobile County. The plaintiff filed suit in Clarke County, where the defendants resided. The defendants filed a motion to transfer the case to Mobile County. Upon denial of that motion, the defendants petitioned this Court for a writ of mandamus. In denying the petition, we reasoned: "In the present case, the facts before this Court do not indicate that Mobile County has a particularly strong connection to this lawsuit. The accident occurred in Mobile County, and the Mobile Police Department prepared an accident report, but there the connections to Mobile County cease. None of the parties lives in Mobile County. Cruz did not receive treatment for his injuries in Mobile County. Coates and J&W have not identified any relevant documents that are located in Mobile County. No eyewitnesses are located in Mobile County, and the investigating police officer has testified that he is willing to travel to Clarke County. In light of the facts before us, Mobile County's nexus to the action is purely fortuitous -– the place on the interstate where the accident occurred. Although we assign 'considerable weight' to the location where the accident occurred, it is not, and should not be, 10 1160941 the sole consideration for determining venue under the 'interest of justice' prong of § 6–3–21.1. "Nor is Clarke County's connection to the action markedly weak. Both defendants are located in Clarke County. Coates is a resident of Clarke County; J&W's place of business is located in Clarke County. Further, it stands to reason that documents relevant to Cruz's claims, particularly his claims of negligent or wanton entrustment, hiring, retention, and training, are located at J&W's place of business in Clarke County. "Given the specific facts of this case, we cannot say that Mobile County has a significantly stronger connection to this case than does Clarke County so that the interest of justice will be offended by trial in Clarke County. ..." 150 So. 3d at 196-97 (footnote omitted). Allstate argues that, as was the case in J&W Enterprises, Lowndes County's connection to the lawsuit is "purely fortuitous" –- it is merely the place were the accident occurred. Allstate thus argues that Lowndes County has a "little" connection to this action. We cannot agree. This Court's decision in J&W Enterprises should not be read as undermining location-of-injury as the foremost factor in the interest-of-justice analysis. To the contrary, J&W Enterprises reaffirmed our assignment of "'considerable weight' to the location where the accident occurred." 150 So. 3d at 196. Instead, we merely recognized in J&W Enterprises 11 1160941 that the location of the accident is not the sole factor to be considered in the interest-of-justice analysis and that there will be circumstances, as was the case in J&W Enterprises, where the interest of justice will not compel the case to be heard in the venue where the accident occurred. In this case, both Lowndes County and Montgomery County have connections to this action. The accident, injuries, and police investigation occurred in Lowndes County. On the other hand, Elliott resides in Montgomery County, where she sought treatment for her injuries resulting from the accident and where the parties' contractual dealings arose. Under the specific facts of this case, Lowndes County's connection to the accident is not "little" or "weak," and Montgomery County does not have a significantly stronger connection to the case to justify a transfer of this case under the interest-of- justice prong of § 6-3-21.1. Therefore, we hold that the trial court erred in transferring this action to the Montgomery Circuit Court. IV. Conclusion For the above reasons, we conclude that the trial court exceeded its discretion in transferring this case to the 12 1160941 Montgomery Circuit Court. Accordingly, the trial court is directed to vacate its order transferring this action from the Lowndes Circuit Court to the Montgomery Circuit Court. PETITION GRANTED; WRIT ISSUED. Stuart, C.J., and Bolin, Parker, Wise, Bryan, and Sellers, JJ., concur. Shaw, J., concurs in the result. Murdock, J., dissents. 13 1160941 MURDOCK, Justice (dissenting). The plaintiff resides in Montgomery County. The defendant does business in Montgomery County. The contract between the plaintiff and the defendant was entered into in Montgomery County. The payment allegedly due by the defendant to the plaintiff was due to be paid to the plaintiff in Montgomery County. When that payment was not made to the plaintiff in Montgomery County, the resulting alleged breach of contract occurred in Montgomery County. If the defendant is liable to the plaintiff for breach of contract, the gravamen of that claim is not the automobile accident that occurred in Lowndes County -- it is the defendant's failure to make good on a contractual obligation to pay plaintiff insurance proceeds in Montgomery County. Notwithstanding the foregoing, the propriety of venue in Lowndes County under § 6-3-7(a), Ala. Code 1975, has not been contested to this Court. Elliot does argue, however, that, under the interest-of-justice prong of § 6-3-21.1, Ala. Code 1975, the case should be heard in Lowndes County. The majority of this Court agrees. I do not. 14 1160941 Even under the extant interest-of-justice jurisprudence of this Court, with which I have repeatedly disagreed, see, e.g., Ex parte Wachovia Bank, N.A., 77 So. 3d 570, 576-78 (Ala. 2011) (Murdock, J., dissenting); and Ex parte Autauga Heating & Cooling, LLC, 58 So. 3d 745, 751–52 (Ala. 2010) (Murdock, J., dissenting), this Court has held that "[t]he 'interest of justice' prong of § 6-3-21.1 requires '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.' Ex parte National Sec. Ins. Co., 727 So. 2d [788,] 790 [(Ala. 1998)]," Ex parte Indiana Mills & Mfg., Inc., 10 So. 3d 536, 540 (Ala. 2008), and also that, as a general rule, "litigation should be handled in the forum where the injury occurred." Ex parte Fuller, 955 So. 2d 414, 416 (Ala. 2006). For the reasons stated in the first paragraph, I see no way to conclude that Montgomery County has little or no connection to this action or that it is not the county where the injury -- the breach of contract -- occurred. 15

December 22, 2017

68ea91c2-152e-45be-b0cd-e66755d59d84

Ex parte Donald R. Horton and David Auld.

N/A

1160816

Alabama

Alabama Supreme Court

IN THE SUPREME COURT OF ALABAMA December 15, 2017 1160816 Ex parte Donald R. Horton and David Auld. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: D.R. Horton, Inc., Huntsville; D.R. Horton, Inc. v. Breland Homes, LLC et al.) (Baldwin Circuit Court: CV-14--901450). ORDER The petition for writ of mandamus in this cause is denied. SHAW, J. - Stuart, C.J., and Bolin, Parker, Main, and Bryan, JJ., concur. Sellers, J., dissents. Wise, J., recuses herself. I, Julia Jordan Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said Court. Witness my hand this 15th day of December, 2017. /ra

December 15, 2017