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Investors Guar. Fund, Ltd. v. Compass Bank

779 So. 2d 185

1981386

Alabama

Alabama Supreme Court

779 So. 2d 185 (2000) INVESTORS GUARANTY FUND, LTD. v. COMPASS BANK and Marengo County Port Authority. 1981386. Supreme Court of Alabama. September 15, 2000. *186 Thomas R. DeBray of Kaufman & Rothfeder, P.C., Montgomery, for appellant. Michael L. Edwards and Cynthia G. Burnside of Balch & Bingham, L.L.P., Birmingham, for appellee Compass Bank. Warren B. Lightfoot, Sara Anne Ford, and Anne Sikes Hornsby of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellee Marengo County Port Authority. ENGLAND, Justice. The defendant Investors Guaranty Fund, Ltd. ("IGF"), appeals from a default judgment entered against it on behalf of the plaintiff Compass Bank and the codefendant Marengo County Port Authority.[1] The default judgment came after three hearings and two mandamus petitions in which IGF unsuccessfully contested the trial court's personal jurisdiction. IGF never answered the complaint or the crossclaim filed by the Marengo County Port Authority; it defied orders to respond to discovery, defied orders to appear for deposition, and failed to appear in regard to, or to protest, the motions for entry of default and entry of a default judgment against it, although it had proper notice. We affirm. The Marengo County Port Authority is an Alabama public corporation that was established to purchase and operate the Tenn-Tom Marina in Demopolis for the benefit of the citizens of Marengo County. The Legislature authorized a bond issue to finance the acquisition of the marina. On June 13, 1989, the Authority issued "Capital Accumulator Port Facility Revenue Bonds, Series 1989," in the face amount of $3.9 million. Compass Bank, an Alabama corporation, serves as the trustee, paying agent, and registrar under the terms of the Bond Indenture dated January 1, 1989, and a Supplemental Indenture dated June 14, 1989, executed between Compass Bank and the Authority. Under the terms of the Indenture, the bonds were divided into two classes: "Class A" bonds, which are subject to redemption, and "Class B" bonds, which, by the terms of the Indenture, are not subject to redemption prior to maturity. The bonds were underwritten, purchased by, and officially registered to Blount, Parrish & Roton, Inc., a municipal securities dealer in Montgomery. Blount, Parrish & Roton resold the bonds to Arod *187 Holdings, Inc., as unrated and uninsured bonds. On June 14, 1989, Arod purchased three bondholder insurance policies from the defendant IGF.[2] IGF insured the risk that the revenues of the Authority's marina facility would not be sufficient to retire the bonds. Contemporaneously with the acquisition of the bondholder insurance policies and the creation of the Insurance Trusts (see note 1), Arod resold the bonds to Blount, Parrish & Roton and Prudential Bache Capital Funding. On the basis of the IGF insurance, the bonds were reoffered in a secondary public offering underwritten by Blount, Parrish & Roton and Prudential Bache Capital Funding on June 14, 1989. The reoffering official statement for the bonds stated on its cover that the bonds were insured by IGF, and it prominently displayed IGF's name and logo. The IGF policies insure the payment of the obligations of the Authority to the bondholders on the maturity dates of the bonds. "Bondholder" is defined as "the registered owner, of any Bond(s) as indicated on the registration books maintained by or on behalf of the Issuer for such purpose and at Maturity Date, certified by the Registrar as the Registered Owner." On November 26, 1997, IGF communicated with Compass Bank, purporting to make "offers" to Compass Bank as trustee under the Trust Indenture, relating to the redemption of "Class A" bonds. IGF addressed its communications to Thomas Radigan at Compass Bank. In January 1998, IGF withdrew and rescinded all "offers." IGF also sought from Compass Bank various documents relating to the bonds. On December 15, 1997, Compass Bank[3] filed a complaint for a declaratory judgment, in the Circuit Court of Jefferson County, against IGF and the Marengo County Port Authority. In the complaint, Compass Bank sought a declaration of its rights, powers, and duties as bond trustee, paying agent, and registrar under the terms of the Bond Indenture dated January 1, 1989, between Compass Bank and the Authority. IGF did not answer the complaint, but moved to dismiss for lack of personal jurisdiction, arguing that it had insufficient contacts with Alabama under the United States Constitution and Rule 4.2(a)(2), Ala.R.Civ.P. The Authority filed an amended answer, a counterclaim, and a cross-claim. On August 7, 1998, the trial court conducted a hearing on IGF's motion to dismiss the complaint. The trial court determined that it had jurisdiction over IGF. On that same day, IGF filed an amended motion to dismiss the complaint for lack of subject-matter jurisdiction. On September 4, 1998, IGF filed a second motion to dismiss, asserting that the circuit court lacked subject-matter jurisdiction over the Authority's cross-claim under the U.S. Constitution and Rule 4.2(a)(2), Ala.R.Civ. P., and also because of a forum-selection clause in the bondholder insurance policies stating that IGF can be sued only in Bermuda or in the United Kingdom. The trial court denied IGF's motion to dismiss. The Authority filed a second notice of deposition and a motion to compel deposition, which the Court heard on October 9, 1998, along with IGF's motion to dismiss the cross-claim. The trial judge denied IGF's motion to dismiss and ordered IGF to appear for deposition in Atlanta by the end of November 1998. IGF petitioned this Court for a writ of mandamus, challenging the trial court's denial of its initial motion and its amended motion to dismiss Compass Bank's complaint. The Court denied the writ on October 21, 1998 (docket no. 1972258). IGF filed a second mandamus petition challenging *188 the trial court's denial of its motion to dismiss the Authority's cross-claim. IGF did not appear for deposition. On November 23, 1998, IGF's counsel stated to the Court IGF's intention not to respond to written discovery or to appear for deposition, but rather to default on the claims made against it. On December 14, 1998, this Court denied IGF's second petition for the writ of mandamus. IGF has never answered Compass Bank's complaint or the Authority's cross-claim. IGF has been represented by Alabama counsel, and it was properly notified of the pendency of, and the hearing on, the motions for default judgment. The trial court held a hearing on the motions for default judgment filed by Compass Bank and the Authority on March 19, 1999. IGF's counsel notified the parties and the trial judge that they would not appear. The trial court granted the motions and entered a default judgment for Compass Bank and the Authority. IGF appealed. It is undisputed that IGF never moved to set aside the default judgment. Therefore, the appropriate standard of review in this case is whether the trial judge's entering the default judgment was an abuse of his discretion. Bailey Mortgage Co. v. Gobble-Fite Lumber Co., 565 So. 2d 138 (Ala.1990). The bondholder policies contain a provision stating that the Supreme Court of Bermuda and the courts of England have exclusive jurisdiction to settle any disputes arising out of or in connection with the policies. IGF, relying on this provision, argues that the Jefferson Circuit Court lacked jurisdiction over it. In Professional Insurance Corp. v. Sutherland, 700 So. 2d 347, 351 (Ala.1997), we adopted the rule that an "outbound" forum-selection clause, such as the one in this case, should be enforced as long as enforcing it is neither unfair nor unreasonable under the circumstances. Compass Bank contends in its brief in opposition to IGA's motion to dismiss that IGF is not licensed to transact insurance business in Alabama and that it has not submitted the bond policies to the Department of Insurance. In support of its contention that it would be unfair and unreasonable to enforce the forum-selection clause in the policies, Compass offered the affidavit of Johnny Johnson, a rate supervisor with the Department, who testified that the Department's policy was not to approve forum-selection clauses such as those in the policies. Johnson notes in his affidavit that the Department's policy has been enacted by the Legislature and is found in § 27-10-50, Ala.Code 1975, which states: Compass further argued to the trial court that the issue for resolution required an interpretation of the terms of the Indenture, not the policies. The parties briefed the forum-selection-clause issue and argued the issue at a hearing on the amended motion to dismiss. Nevertheless, the trial court concluded in its order that IGF does business in Alabama and insures risks located in Alabama. Upon reviewing the evidence and the arguments presented to the trial court, we conclude that IGF has not demonstrated that the trial court abused its discretion with regard to the forum-selection clause. We must now determine whether the trial court properly concluded that Alabama has in personam jurisdiction over IGF via Alabama's long-arm rule, Rule 4.2(a)(2), Ala.R.Civ.P. Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958), requires that a nonresident defendant have "sufficient contacts," usually *189 stated in terms of "certain minimum contacts," with a state in order for that state's courts to acquire personal jurisdiction over that defendant. It is settled that an Alabama court applies a twofold analysis in determining whether it has personal jurisdiction over a nonresident defendant: (1) to determine whether it was foreseeable to that nonresident defendant that he would be sued in this state; and (2) to determine the degree of the defendant's contact with this state, i.e., whether the nonresident defendant had those minimum contacts considered to be sufficient for the court to exert personal jurisdiction. Keelean v. Central Bank of the South, 544 So. 2d 153, 156-57 (Ala.1989). Alabama's long-arm provision, Rule 4.2(a), Ala.R.Civ.P., provides in pertinent part: IGF argues that it is truly a "foreign" corporation. It states that it is a company formed and existing under the laws of Bermuda and that it has its principal place of business in Hamilton, Bermuda. IGF contends that it does not own property in the United States and that it is not qualified to do business in any state in the United States, including Alabama. IGF states that it continues to oppose the trial court's exercise of jurisdiction, based on a belief that submitting to the jurisdiction of the State of Alabama will severely prejudice and compromise IGF's status as a foreign corporation that is subject only to the jurisdiction of the courts of England and Bermuda. IGF admits it has not filed an answer in this matter, but has raised its jurisdictional challenges through motions to dismiss. It is clear that IGF has sufficient contacts with Alabama to make it fair and reasonable to require IGF to come to this state to defend an action. IGF participated in causing Compass Bank to be appointed as claim settlor in connection with the IGF policies. IGF contracted to provide a service in this state and insured a risk located in this state at the time of contracting. Given these contacts, it was foreseeable to IGF that it might be sued in the State of Alabama. IGF insured the bonds issued by the Authority, which were to be repaid from the revenues of the Tenn-Tom Marina in Demopolis. The insured bonds were sold nationwide, with a portion of them being purchased by Alabama citizens. The IGF policies clearly and unequivocally: (1) state that IGF "UNCONDITIONALLY AND IRREVOCABLY GUARANTEES to indemnify the Bondholder"; (2) define "Bondholder" to mean the registered owner of any of the bonds, as indicated on the bond registration books maintained by the "Bond Registrar" (i.e., Compass Bank, which is an Alabama corporation, with its principal place of business in Alabama) and on behalf of the Authority, an Alabama public entity; (3) reference and acknowledge *190 the right and authority of the bondholders and of Compass Bank, as Indenture Trustee and representative of the bondholders, to make a claim under the IGF policies; and (4) reference and acknowledge the appointment of a claims settlor, Compass Bank, to facilitate payments to the bondholders under the IGF policies. Compass Bank is the claims settlor for each of the three bondholder insurance policies, pursuant to the Claims Settlement Trust Agreements between Compass Bank and Bermuda Trust Company, Limited, as trustee of the Insurance Trusts established by the IGF for the benefit of the bondholders.[4] IGF signed and acknowledged these agreements, which clearly contemplate the performance of their essential purpose in the State of Alabama and provide that they are to be governed by, and construed in accordance with, the laws of the State of Alabama. The record reflects further contacts between IGF and Alabama. IGF purchased the investments placed in the insurance trusts from Blount, Parrish & Roton, Inc., a Montgomery securities firm. The chairman and CEO of IGF, Douglas L. King, and a director of IGF, D. Patrick McCoy, were actively involved in the negotiations and discussions that resulted in the Authority's acquisition of the Tenn-Tom Marina and the issuance of the bonds. King and McCoy made at least two site visits to Demopolis. They have received board minutes and other correspondence or relevant information from the Authority. General counsel for IGF, J. Scott Brown, has engaged in repeated telephone and written communication with the Authority president. The president of IGF, Alasdair G. Barclay, has engaged in written and telephone communication with the Authority's president in Demopolis and with representatives of the bond trustee located in Alabama. In Keelean v. Central Bank of the South, supra, this Court considered the question whether signing a guaranty out of state that will have economic effects in this State will satisfy Alabama's long-arm requirement that a defendant have contacts with Alabama sufficient for an Alabama court to properly exercise jurisdiction over that party. In Keelean, a Florida corporation had executed and delivered a promissory note to an Alabama bank and then had defaulted on the note. The bank sought to have an Alabama court exert personal jurisdiction over the guarantors to the promissory-note obligation. This Court used the following rationale in concluding that the signing of the guarantees met the "sufficient-contact" requirement of the 14th Amendment of the U.S. Constitution and Rule 4.2(a)(2)(I) so that the Alabama court has in personam jurisdiction: Id. at 157. IGF asserts that it was precluded from presenting a "meritorious defense" because if it had made a general appearance and asserted a factual defense, then by doing so, it says, it would *191 have voluntarily submitted itself to the jurisdiction of the Alabama courts, thus destroying the immunity from being sued in Alabama that it enjoyed as a foreign corporation. However, IGF's assertion is in error. A defense of lack of jurisdiction over the person may be made in a motion or in an answer raising other defenses that formerly would have constituted a general appearance. In Creel v. Gator Leasing, Inc., 544 So. 2d 936 (Ala.1989), this Court explained as follows: 544 So. 2d at 937-38. The Committee Comments on the 1973 adoption of Rule 12 explain: (Citations omitted.) We conclude that, under the circumstances of this case, it was fair and reasonable, so as to comport with due-process requirements, for the trial court to require IGF to defend this action in Alabama; therefore, the trial court properly dismissed IGF's motions to dismiss for lack of personal jurisdiction. We also hold that the trial court did not abuse its discretion in entering the default judgment against IGF. It came after three hearings and two petitions for the writ mandamus in which IGF unsuccessfully contested the trial court's personal jurisdiction. It is not disputed that IGF *192 never answered the complaint or the cross-claim and that it defied orders to respond to discovery. In addition, IGF failed to appear or to protest the motions for entry of default and entry of default judgment against it, although it had proper notice. "`It is well established that if the defendant is properly within the jurisdiction of the court, and if he has notice of the trial date and does not appear and defend, the court has no choice but to enter judgment for the plaintiff.'" Creel v. Gator Leasing, Inc., supra, 544 So. 2d at 937 (quoting Roberts v. Wettlin, 431 So. 2d 524 (Ala.1983)). AFFIRMED. HOOPER, C.J., and MADDOX, COOK, SEE, LYONS, BROWN, and JOHNSTONE, JJ., concur. HOUSTON, J., recuses himself. [1] In addition to entering the default judgment, the trial court declared a constructive trust over certain IGF interests and issued a permanent injunction against IGF with respect to certain Insurance Trusts IGF had created. [2] BIP689-0003-03/19, BIP689-0001-07/05, and BIP689-0002-07/11. [3] Compass Bank was the claims settlor for each of the IGF policies, pursuant to a Claims Settlement Agreement between Compass Bank and the Bermuda Trust Company, Limited, as trustee of the insurance trust established by IGF for the benefit of the bondholders. [4] # ARENGOM 1 CST689-2001-07/05; # ARENGOM 2 CST689-2001-07/11; and ARENGOM 3 CST689-2003-03/19.

September 15, 2000

055f406d-de13-44b4-8f2f-6c025cab16ce

Ex Parte Siebert

778 So. 2d 857

1991474

Alabama

Alabama Supreme Court

778 So. 2d 857 (2000) Ex parte Daniel SIEBERT. (Re Daniel Lee Siebert v. State). 1991474. Supreme Court of Alabama. September 15, 2000. Jeffrey E. Glen of DeForest & Duer, New York City, New York; and LaJuana Davis, Montgomery, for petitioner. Bill Pryor, atty. gen., and James R. Houts, asst. atty. gen., for respondent. Prior report: Ala.Cr.App., 778 So. 2d 842. ENGLAND, Justice. The petition for the writ of certiorari is denied. In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973). WRIT DENIED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, and BROWN, JJ., concur. JOHNSTONE, J., concurs specially. JOHNSTONE, Justice (concurring specially). I concur with the decision of the Court to deny this petition for the writ of certiorari with a "cracker." I write specially in order to remind the bench and bar of the limitations of the effect of a denial of a petition for a writ of certiorari and in order to address some of the statements of law in the opinion of the Court of Criminal Appeals. The denial of a petition for a writ of certiorari is not an endorsement of the decision or opinion of the lower appellate court. Ex parte Terry, 540 So. 2d 785 (Ala. 1989); Banks v. State, 358 So. 2d 480 (Ala. 1978); and Hurst v. State, 293 Ala. 548, 307 So. 2d 73 (1975). Most petitions for writs of certiorari are denied because the petitions and the accompanying briefs (or such materials as are submitted seeking certiorari review) do not meet the requirements established by Rule 39 and Rule 40, Ala.R.App.P., to obtain certiorari review or otherwise do not meet the procedural or substantive requirements to demonstrate a probability of merit. Moreover, because certiorari review is discretionary, some petitions for writs of certiorari that would support certiorari review are denied in order to avoid diverting the judicial manpower of the Supreme Court from still worthier issues that must be reviewed. Sometimes, a "cracker," or a disclaimer, accompanies an order denying a petition for a writ of certiorari when some aspect of an opinion of the lower appellate court prompts a majority or more of the Justices to remind the bench and bar of what is true for every denial of a petition of writ of certiorari: that the denial is not an endorsement of the decision or opinion of the lower appellate court. The absence of a cracker does not imply any degree of either approval or disapproval. On the merits, on the one hand, the result reached by the Court of Criminal Appeals in this case is entirely justifiable on the ground that the defendant's Rule 32, Ala.R.Crim.P., petition was filed after the two-year deadline without any proof of an excuse that might warrant an extension of the deadline pursuant to Rule 1.3(b), Ala.R.Crim.P. On the other hand, some of the other aspects of the rationale of the *858 Court of Criminal Appeals need some comment. First, the opinion of the Court of Criminal Appeals seems to hold that Rule 1.3(b) can never authorize an extension of the two-year deadline for filing a Rule 32 petition under any circumstances. 778 So. 2d at 849. This apparent holding is really just dictum because the Rule 32 petition does not establish any excusable neglect, which is the criterion for the application of Rule 1.3(b). Whether this particular rule can authorize an extension of the two-year deadline for filing a Rule 32 petition has not been previously decided by either the Court of Criminal Appeals or this Court. A question of first impression should not be contemplated in dictum as an additional rationale to buttress a primary rationale which is, in and of itself, entirely sufficient. Second, the Court of Criminal Appeals holds that the petitioner's claims of ineffective assistance of appellate counsel "are barred because they either were addressed at trial and on direct appeal, Rules 32.2(a)(2) and (4), or they could have been raised at trial and then challenged on direct appeal. Rules 32.2(a)(3) and (5)." 778 So. 2d at 850. The particular claims of ineffective assistance of appellate counsel addressed by this rationale are quoted as paragraphs XVI.C., XVI.F., XVI.H., and XVI.L. of the Rule 32 petition. See 778 So. 2d at 853. Any ground of relief, of course, must be presented, first, to the trial court and, next, to the appellate court. Ineffective assistance of appellate counsel obviously cannot be raised or addressed at trial, where no appellate representation has yet occurred, and could hardly be raised or addressed on direct appeal, where the very lawyer handling the appeal would be the one whose effectiveness would be at issue. Even if some appellate lawyer were so humble, so zealous, and so schizophrenic that he could effectively attack his own effectiveness in his own appellate brief, he would not have had an opportunity to present these attacks to the trial judge. Thus a Rule 32 petition is the only adequate remedy for ineffective assistance of appellate counsel. Brown v. State, 681 So. 2d 1102 (Ala.Crim.App.1996); and Alderman v. State, 647 So. 2d 28 (Ala. Crim.App.1994). The Court of Criminal Appeals erred in holding that the petitioner's claims of ineffective assistance of appellate counsel are barred because they were or could have been raised and addressed at trial or on direct appeal. Third, the Court of Criminal Appeals erroneously holds that the petitioner's claims of jury misconduct are insufficient because they do not meet the criteria of Rule 32.1(e), Ala.R.Crim.P., for newly discovered evidence. 778 So. 2d at 854. A claim of jury misconduct is a claim of a denial of constitutional due process. Irvin v. Dowd, 366 U.S. 717, 721-22, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961), and McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 549, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984). Rule 32.1(a) (constitutional violations), Ala.R.Crim.P., is the authority for collateral relief for such a claim. This rule is entirely distinct from Rule 32.1(e) (newly discovered evidence), Ala. R.Crim.P., even though a defendant must pursue a claim under either rule with timely diligence in order to succeed. The criterion of Rule 32.1(e) (newly discovered evidence) that absolutely does not apply to a claim under Rule 32.1(a) (constitutional violations) is Rule 32.1(e)(5)that "[t]he facts establish that petitioner is innocent of the crime for which petitioner was convicted or should not have received the sentence that petitioner received." (Emphasis added.) Ex parte Pierce, [Ms. 1981270, September 1, 2000] ___ So.2d ___ (Ala.2000). A defendant is not required to prove his innocence in order to get a constitutional trial, including a fair jury, to consider his presumption of innocence.

September 15, 2000

47636fa5-d4d9-4d93-8ded-9026070c6a1f

Hail v. Regency Terrace Owners Ass'n

782 So. 2d 1271

1981397

Alabama

Alabama Supreme Court

782 So. 2d 1271 (1999) Barbara B. HAIL, as executrix of the estate of Jack Lee Hail, deceased v. REGENCY TERRACE OWNERS ASSOCIATION et al. 1981397. Supreme Court of Alabama. December 22, 1999. Rehearing Denied April 28, 2000. Opinion on Return to Remand October 27, 2000. *1272 W. Lee Pittman of Pittman, Hooks, Dutton & Hollis, P.C., Birmingham, for appellant. Roderick K. Nelson and Judy B. Van Heest of Beers, Anderson, Jackson, Nelson, Hughes & Patty, P.C., Montgomery, for appellees Regency Terrace Owners Association and Metcalf Realty Company, Inc. Joseph E. Stott of Clark & Scott, P.C., Birmingham, for appellee Bagby Elevator Company, Inc. PER CURIAM. Barbara B. Hail, as the executrix of the estate of her husband Jack Lee Hail, filed a wrongful-death action against Regency Terrace Owners Association (the "Association"), Metcalf Realty Company, Inc. ("Metcalf"), Bagby Elevator Company, Inc. ("Bagby"), Radionics, Inc. ("Radionics"), and Automatic Detection Systems, Inc. ("ADS"). The circuit court entered summary judgments for the defendants. Mrs. Hail appealed the summary judgments in favor of the Association, Metcalf, and Bagby. Therefore, Radionics and ADS are not parties to this appeal. We reverse and remand. Jack Hail resided in a condominium apartment he owned in the Regency Terrace Condominiums in Birmingham. Management of the building was the responsibility of the Association, which is governed by a board of directors and elected officers. The Association's board hired Metcalf to manage the property and maintain the building. On May 3, 1995, a fire occurred in the maintenance man's office, which was located adjacent to the building's lobby. At the time of the fire, Mr. Hail was found in the lobby of the building; he later died as a result of injuries sustained in that fire. The Birmingham Fire Department concluded that the fire was the result of arson, but no arrest was made. *1273 In the 13 months preceding the May 3, 1995, fire, between 8 and 13 other smaller fires had occurred in or around the building's trash chutes. These fires were also suspected to be arson fires. Testimony from the president of the Association suggests there had been 8 previous fires; testimony by Mrs. Hail suggests there had been 13 previous fires. The Association held numerous meetings to inform its members of the danger of these fires. At these meetings, various safety precautions were discussed and those precautions were later implemented. It became apparent at these meetings that the maintenance man and one resident were considered, by at least some of the owners, to be the primary suspects. However, no one was ever charged with starting the fires. The building has two elevators, which serve all floors of the building. These elevators are serviced by Bagby. At the time of the fire that killed Mr. Hail, these elevators were equipped with a "recall system" that was designed to prevent them from opening onto a floor where smoke had been detected, but, instead, to deliver passengers to a predetermined alternate floor. The building has two stairwells, one at each end of the hallway. These stairs are outside the building, and they lead from each upper floor to ground level. Mrs. Hail contends that on May 3, 1995, the "recall system" failed and that as a result of the failure an elevator delivered Mr. Hail to a smoke-filled lobby, where he was overcome by smoke and fire. Mrs. Hail filed this wrongful-death action on September 4, 1996. On August 18, 1998, Bagby filed a motion for summary judgment, along with a brief in support of the motion. Mrs. Hail filed a responsive brief on September 8, 1998, in which she asked the trial court, pursuant to Rule 56(f), for additional time for opposing Bagby's motion. The trial court entered a summary judgment for Bagby on November 12, 1998. On January 27, 1999, Bagby moved for an order, pursuant to Rule 54(b), making its summary judgment final. On February 11, 1999, the Association and Metcalf filed a joint motion for summary judgment. On February 19 and 23, 1999, Mrs. Hail submitted additional affidavits to be considered in opposition to the summary-judgment motions of Bagby, Regency, and Metcalf. On March 1, 1999, the trial court entered a Rule 54(b) order making Bagby's summary judgment final. On March 24, 1999, the trial court entered summary judgments for Metcalf and the Association. Mrs. Hail has appealed all three of these summary judgments. In reviewing a summary judgment, this Court applies the same standard the trial court applied "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). A summary judgment is proper when there is no genuine issue of material fact and the defendant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Ex parte General Motors Corp., 769 So. 2d 903, 906 (Ala. 1999). See, also, Calvert v. Casualty Reciprocal Exch. Ins. 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). However, "[i]n reviewing the trial court's ruling on a motion for summary judgment, this Court must evaluate the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant." Norfolk S. Ry. v. Johnson, 740 So. 2d 392 (Ala. 1999), citing Continental Eagle Corp. v. Mokrzycki, 611 So. 2d 313, 317 (Ala.1992). Mrs. Hail sued Metcalf and the Association under a premises-liability theory, alleging *1274 that they were liable for Mr. Hail's death. She argues that the 8 to 13 fires that had occurred in the building during the 13 months before the fatal fire, gave Metcalf and the Association notice of probable harm, harm that in fact, she says, caused the death of her husband. Furthermore, because the maintenance man was suspected of causing these fires, and because Metcalf and the Association were responsible for hiring him, Mrs. Hail contends that it was unreasonable not to dismiss him when he first became a suspect. Dismissing him, she says, would have prevented the fire that caused Mr. Hail's death. The Association's representative acknowledged that, before the date of the fire that killed Mr. Hail, the Association had held numerous meetings with the residents to deal with the series of fires. A frequent topic of discussion at these meetings was the residents' desire to get the maintenance man off the property, yet he was not removed until after that fire. The maintenance man had been employed at Regency Terrace for approximately one year before the fire, and the president of the Association said he could not recall any arson fires in the building before this maintenance man was hired. The fatal fire originated in the maintenance man's office. Shortly after that fire occurred, the maintenance man was discharged. As of the date the last summary judgment was entered in this case, no other fire had occurred on the property. Metcalf and the Association contended in their joint summary-judgment motion that, assuming arson was the cause of the fire, the arson would have been a criminal act of a third party and they, therefore, cannot be held liable under a theory of premises liability. We disagree. "It is the general rule in Alabama that absent special relationships or circumstances, a person has no duty to protect another from criminal acts of a third party." Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368, 1370 (Ala.1986). "Special circumstances" arise when the defendant "knew or had reason to know of a probability of conduct by [a third person] that would endanger the plaintiff." Saccuzzo v. Krystal Co., 646 So. 2d 595, 596 (Ala.1994), quoting Nail v. Jefferson County Truck Growers Ass'n, Inc., 542 So. 2d 1208, 1211 (Ala.1988). Knowledge on the part of a premises owner or manager of a probability that harm will be caused to a person on the premises, by the action of a third party, can create a duty on the part of the owner or manager to take reasonable precautions. Ortell v. Spencer Companies, Inc., 477 So. 2d 299 (Ala.1985). However, while prior incidents of criminal conduct can indicate the premises owner or manager had notice that someone on the premises could be harmed by the criminal act of a third person, proof of prior criminal acts does not conclusively establish such notice. Saccuzzo, 646 So. 2d at 596, citing Williams v. First Alabama Bank, 545 So. 2d at 27 (Ala.1989). In Henley v. Pizitz Realty Co., 456 So. 2d 272 (Ala.1984), this Court considered a case in which an invitee was abducted from a parking deck and was taken off the premises and raped. The assaulted invitee sued the premises owner; this Court affirmed a summary judgment for the defendant premises owner, concluding that the plaintiff had presented no "evidence that the defendant [premises owner] either knew or should have known of a likelihood of conduct on the part of a third person such as [the rapist] which would endanger the invitee." Id. at 277. This Court has rarely held that the danger to an invitee posed by the potential criminal act of a third person was so imminent that the premises owner should have foreseen the *1275 eventual consequence. Saccuzzo, 646 So. 2d at 596. See, also, Ex parte McRae's of Alabama, Inc., 703 So. 2d 351 (Ala.1997); Ortell v. Spencer Companies, Inc., supra; CIE Service Corp. v. Smith, 460 So. 2d 1244 (Ala.1984). Thus, these cases present a question of foreseeability. However, for a fact-finder to find foreseeability, an invitee-plaintiff is not required to prove "that the particular consequence should have been anticipated, but rather that some general harm or consequence could have been anticipated." Thetford v. City of Clanton, 605 So. 2d 835, 840 (Ala.1992). Metcalf and the Association argue that the fatal fire was not foreseeable. However, this argument is contradicted by evidence of the significant steps the Association had taken in its attempts to protect the residents from the danger of future fires. The evidence in the record indicates that the Association had held educational meetings, had installed new fire equipment, and had added additional security devices. It had decided to install surveillance cameras not only near the trash chutes, where the previous fires had occurred, but in the lobby area as well. These cameras were being installed, but were not operational, at the time of the fatal fire. In the cases where this Court has held a defendant subject to liability under a theory of premises liability for the criminal acts of a third party, the identity of the third party was known to the defendant. See Nail v. Jefferson County Truck Growers Ass'n, Inc., supra (involving two sets of feuding tenants, their identities known to defendant); Thetford v. City of Clanton, supra (innkeeper warned by wife that husband should not be told of her presence on innkeeper's property); and Young v. Huntsville Hospital, 595 So. 2d 1386 (Ala. 1992) (anesthetized patient sexually assaulted by a person who had been seen wandering around the hospital on prior occasions). In this case, while the identity of the arsonist is not known, the number of suspects had been narrowed to two. Metcalf and the Association argue that one could only speculate as to which of the two persons was the culprit, and that the trial court, therefore, properly entered their summary judgments. However, that argument glosses over the question whether the steps taken by Metcalf and the Association to investigate and to identify and remove the wrongdoer, so as to end a 13-month-long series of arson fires, were reasonable under the circumstances. In this respect, this case is distinguishable from cases such as Saccuzzo v. Krystal, supra; Ex parte McRae's of Alabama, Inc., supra; and Ortell v. Spencer Companies, supra. In those cases, the element of foreseeability was lacking, as a matter of law, notwithstanding the fact that in each of those cases the evidence indicated numerous prior criminal incidents on or around the defendant's premises; in each of those cases, the defendant had no evidence suggesting the identity of the third person committing the criminal acts and the plaintiff made no claim that the defendant had not used due diligence in attempting to identify that person. We do not suggest that Mrs. Hail is entitled to a judgment against Metcalf and the Association; we merely reverse the summary judgments in their favor, because the evidence presents a jury question on the issue of foreseeability. At trial, Metcalf and the Association can offer evidence indicating that, given all the circumstances, they could not reasonably have foreseen the fire that killed Mr. Hail. Alternatively, if the foreseeability question is determined in Mrs. Hail's favor, Metcalf and/or the Association can still prove that they did not breach their duty to Mr. Hail, by showing that the precautionary *1276 steps they took were reasonable in the face of the foreseeable harm. As previously noted, if a criminal attack upon an invitee by a third person is reasonably foreseeable to the premises owner, the law imposes on the premises owner a duty to take reasonable precautions to protect against it. Ortell, 477 So. 2d at 299. Metcalf, and especially the Association, presented formidable evidence indicating that they took reasonable steps to prevent fires, such as the one that killed Mr. Hail, and they also make a persuasive argument that it was reasonable for them not to dismiss the maintenance man in the situation where he was one of two potential suspects. Therefore, we reverse the summary judgments in favor of Metcalf and the Association. In her claim against Bagby, Mrs. Hail contends that at least one of the two elevators in the building was defective and that the defect caused it to deliver Mr. Hail to a floor that was filled with smoke and fire. The "recall feature" on these elevators was designed to prevent them from opening on a floor containing smoke or fire. On August 18, 1998, Bagby moved for summary judgment. In its summary-judgment motion, Bagby conceded that the elevators worked improperly; that concession focused the Court's attention on only one issue: Whether the plaintiff had presented substantial evidence indicating that Mr. Hail had used one of the elevators to reach the lobby at the time of the fire. Bagby argues that Mrs. Hail presented no evidence indicating that he had been on the elevator, and therefore, that it cannot be held liable for his death. In other words, Bagby asserts that when it made the summary-judgment motion the evidence available to Mrs. Hail regarding the question whether the defect in the elevator caused Mr. Hail's death was the evidence regarding the location where he was found, evidence showing he was found in the lobby near the elevator and that when he was found he was suffering from effects of the fire. Bagby contends that that evidence, without more, would compel the legal conclusion that Mrs. Hail cannot prove one of the elements of her tort claim, causation. Under Ex parte General Motors Corp., 769 So. 2d 903, 907 (Ala.1999), that conclusion would shift the burden of proof to the plaintiff. In order to defeat the summary-judgment motion, the nonmovant, Mrs. Hail, had to direct the court's attention to "`evidence of that essential element [i.e., evidence that was] already in the record [and] that was ignored or overlooked by the movant, or ... submit an affidavit requesting additional time for discovery, in an attempt to obtain some evidence of that essential element ..., in accordance with Rule 56(f).'" Ex parte General Motors, 769 So. 2d at 909, quoting Berner v. Caldwell, 543 So. 2d 686, 691 (Ala.1989) (Houston, J., concurring specially). In its August 18, 1998, summary-judgment motion, Bagby contended that Mrs. Hail could not prove that her husband had used the elevator at the time of the fire and thus could not prove that the defect in the elevator had caused his death. The deadline for submitting materials opposing that summary-judgment motion was September 8, 1998. On that date, Mrs. Hail's attorney submitted his own affidavit, which explained why Mrs. Hail's discovery had been delayed and why he felt further discovery was necessary. Along with this affidavit, Mrs. Hail filed a Rule 56(f) motion, requesting additional time for discovery. Nothing in the record indicates a ruling on this motion, but the court did delay ruling on Bagby's motion for summary judgment until after Mrs. Hail had *1277 presented additional evidence. She offered the affidavit of James Munger, her expert witness on fire investigation, to show that the location of Mr. Hail's body indicated that he had used the elevator at the time of the fire. The trial court struck Munger's affidavit and entered a summary judgment for Bagby on November 12, 1998, without stating a reason. Because this case involved multiple claims and multiple parties, the summary judgment in favor of Bagby did not, when it was entered, constitute a "final" order. See Rule 54(b). On January 27, 1999, Bagby moved the trial court to make the summary judgment final, pursuant to Rule 54(b). On February 11, 1999, Mrs. Hail filed a second affidavit from Munger, whose testimony she had previously relied upon unsuccessfully to oppose Bagby's motion for summary judgment. This additional affidavit again expressed Munger's expert opinion that Hail had used the elevator. The court, on February 16, 1999, held a hearing on Bagby's motion for entry of an order making its summary judgment final. At that hearing, Mrs. Hail opposed the entry of a final judgment on her claim against Bagby. Bagby asserts that at this hearing the trial court made an oral ruling that made the summary judgment final. On the other hand, Mrs. Hail asserts that at this hearing the trial court extended the time allowed for submitting additional evidence. With neither a formal order issued on February 16, 1999, nor a corroborating notation in the case action summary, we must disregard both allegations. See Rule 58(a). "[T]his Court is limited to a review of the record alone, and the record cannot be changed, altered, or varied on appeal by statements in briefs of counsel." Gotlieb v. Collat, 567 So. 2d 1302, 1304 (Ala.1990). On February 23, 1999, one week after the hearing, Mrs. Hail submitted further evidence in opposition to Metcalf and the Association's joint motion for summary judgment, as well as in opposition to Bagby's motion to make its summary judgment final. In addition to Munger's second affidavit, which she had filed on February 11, 1999, Mrs. Hail submitted affidavits from Jeff Whitten and John Waldrop, employees of ADS; they had been on the premises installing security cameras on the day of the fire and had pulled Mr. Hail from the burning building. Mrs. Hail contends that these two affidavits, along with the previously submitted second affidavit of Munger, provide substantial evidence that would support a finding that Mr. Hail, shortly before he was found at the time of the fire, had been brought to the lobby by the elevator. On March 1, 1999, after these three affidavits had been filed, the trial court granted Bagby's motion to make the summary judgment final pursuant to Rule 54(b). In its order, the trial court stated: (Emphasis added). In its March 1, 1999, order, the trial court failed to mention the three recently filed affidavits. On March 24, 1999, after Bagby's summary judgment had been made final, the trial court struck the three affidavits and entered summary judgments in favor of Metcalf and the Association. The record does not indicate the court's reason for striking the additional affidavits. Bagby's brief in opposition to the affidavits asserts that they came too late, under the general rule that a trial court's review of a previously granted summary-judgment motion is limited to the evidence that was before it when it ruled on the motion. See Moore v. Glover, 501 So. 2d 1187 (Ala.1986). However, Rule 54(b) provides that "any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties [is not final and] is subject to revision at any time before the entry of [a] judgment adjudicating all the claims and the rights and liabilities of all the parties." See Miller v. Santiago, 642 So. 2d 446, 447 (Ala.1994). Thus, on February 23, 1999, when Mrs. Hail submitted the three affidavits, Bagby's summary judgment was still interlocutory and subject to revision. Rule 54(b); see Simmons Machinery Co. v. M & M Brokerage, Inc., 409 So. 2d 743, 759 (Ala.1981). The factors a court is to consider on the question whether to revise an interlocutory summary judgment are analogous to those it is to consider when a party attempts to offer new evidence in support of a motion under Rule 59(e). Thomas v. Swindle, 676 So. 2d 333, 335 (Ala.Civ.App.1996). Evidence submitted in an effort to revise an interlocutory summary judgment can be considered by the court if the nonmovant can offer a proper explanation for its failure to submit the evidence earlier, in response to the motion for summary judgment. Id., at 335, citing Moore v. Glover, 501 So. 2d at 1189. We have not previously had an occasion to determine whether a trial court abuses its discretion either by granting or by denying a "reconsideration" of an interlocutory summary judgment. In Xerox Corp. v. Genmoora Corp., 888 F.2d 345, 356 (5th Cir.1989), the United States Court of Appeals for the Fifth Circuit held that, in light of newly submitted evidence, the trial court had abused its discretion by refusing to reconsider a summary judgment that had not become final. The Fifth Circuit held: Id. at 356. On the other hand, in Calpetco 1981 v. Marshall Exploration, Inc., 989 F.2d 1408, 1414 (5th Cir.1993), the trial court's failure to reconsider an interlocutory summary judgment was upheld, where the nonmovant had submitted certain evidence, for the first time, two weeks after the interlocutory summary judgment had been entered, and submitted it without an explanation as to why it had not been submitted earlier. The trial court's order of March 1, 1999, states that "no new evidence has come to light which suggests that judgment in favor of Bagby Elevator Company, Inc., could, for any reason, be overturned." We cannot determine whether the trial court, when it made this statement, was disregarding the three affidavits; whether it had considered the affidavits and found them insufficient; or whether the court determined that the plaintiff did not offer adequate justification for their delayed submission. Without a clarifying order from the trial court, we cannot affirm Bagby's summary judgment. We therefore remand this case with instructions for the trial court either to consider the affidavits of Whitten, Waldrop and Munger, if it did not do so before entering its order of March 1, 1999; or, if it did consider them, to enter an order specifically indicating why it did not accept them as justifying an order setting aside the interlocutory summary judgment for Bagby. If, upon considering them, the court determines that they create a genuine issue of material fact, then, in regard to the fact of their delayed submission, the court is to consider that fact in light of the circumstances as they existed when the plaintiff first submitted these affidavits. In fairness to Bagby, the trial court should not consider any other newly submitted evidence in opposition to Bagby's summary-judgment motion. The trial court shall, within 60 days from the date of this opinion, make a return to this Court indicating its action in regard to these instructions. The judgments in favor of the defendants Metcalf and the Association are reversed. The cause is remanded for further proceedings on the claims against those defendants, consistent with this opinion, and, in regard to the defendant Bagby, for compliance with the instructions stated herein. REVERSED IN PART; REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and MADDOX, COOK, LYONS, BROWN, and ENGLAND, JJ., concur. SEE, J., concurs specially. HOUSTON and JOHNSTONE, JJ., concur in part and dissent in part. SEE, Justice (concurring specially). I concur. I write to distinguish this case from the long line of cases recognizing the general rule that "a person has no duty to protect another from criminal acts of a third person." Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368, 1370 (Ala. 1986). In Finley v. Patterson, 705 So. 2d 826, 828 (Ala.1997), I explained that there are two exceptions to this general rule: (1) the *1280 "special-relationship" exception; and (2) the "special-circumstances" exception. The special-relationship exception is drawn from the Restatement (Second) of Torts (1965) § 315, which states: (As quoted in Finley, 705 So. 2d at 828.) The special-circumstances exception "arises only in the rare case when the person `know[s] or [has] reason to know that acts are occurring or [are] about to occur on the premises that pose imminent probability of harm to an invitee.'" Finley, 705 So. 2d at 829 (quoting Nail v. Jefferson County Truck Growers Ass'n, Inc., 542 So. 2d 1208, 1211 (Ala.1988)). Knowledge on the part of the defendant that there is a probability of harm to the plaintiff caused by a third party will create a duty to take reasonable precautions. See Ortell v. Spencer Companies, Inc., 477 So. 2d 299, 299 (Ala.1985). The majority opinion notes that rarely has this Court held that the danger was so imminent that the defendant should have foreseen the eventual consequences. 782 So. 2d at 1274-75. See Henley v. Pizitz Realty Co., 456 So. 2d 272, 277 (Ala.1984) (summary judgment for the defendant was proper because the abduction of the plaintiff in the defendant's parking lot, and her subsequent rape, were not reasonably foreseeable by the defendant, even though the defendant was aware that in the 10-year period preceding the rape the following crimes had occurred in its parking lot: "one battery upon an owner of a car; six breakings and enterings of cars; two robberies;... six thefts; and one theft in which the thief was shot by a customer"[1]); Saccuzzo v. Krystal Co., 646 So. 2d 595, 597 (Ala.1994) (summary judgment in favor of restaurant owner was proper because the owner had no duty to protect a shooting victim from the criminal acts of a third person, even though the police had been called to the restaurant more than 160 times in the 18 months preceding the shooting). This case is distinguishable from cases such as Henley and Saccuzzo. In this case, although the number of fires was relatively small, the possible suspects had been narrowed to two particular persons, one of whom was an employee of Metcalf Realty Company. Thus, while the number of fires alone would not be sufficient to give rise to a duty on the part of Regency Terrace Owners Association to take precautions against another arson, the fact that those fires had occurred, coupled with the fact that the fires had been similar and the fact that the range of suspects was so narrow, would be sufficient to give rise to a duty on the part of the Association and Metcalf Realty, its manager, to protect the tenants, and, thus, to bring this case within the special-circumstances exception to the general rule. HOUSTON, Justice (concurring in part and dissenting in part). I concur in the main opinion insofar as it relates to the summary judgment for Bagby *1281 Elevator Company. However, I dissent from the reversal of the summary judgments for Regency Terrace Owners Association and Metcalf Realty Company, Inc. Mrs. Hail sued the Association and Metcalf under a premises-liability theory, arguing that they were liable for her husband's death, which occurred as a result of arson on their property. These defendants sought a summary judgment, contending that because the fire was the criminal act of a third party they cannot be held liable under a theory of premises liability. I agree with their argument. "It is the general rule in Alabama that absent special relationships or circumstances, a person has no duty to protect another from criminal acts of a third person." Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368, 1370 (Ala.1986). See Ex parte McRae's of Alabama Inc., 703 So. 2d 351 (Ala.1997); C.A. v. Wal-Mart, Inc., 683 So. 2d 413 (Ala.1996); Baptist Memorial Hosp. v. Gosa, 686 So. 2d 1147 (Ala.1996); Broadus v. Chevron USA, Inc., 677 So. 2d 199 (Ala.1996); Habich v. Crown Cent. Petroleum Corp., 642 So. 2d 699 (Ala.1994); Dailey v. Housing Auth. for the Birmingham Dist., 639 So. 2d 1343 (Ala.1994); E.H. v. Overlook Mountain Lodge, 638 So. 2d 781 (Ala.1994); W.L.O. v. Smith, 585 So. 2d 22 (Ala.1991); Webster v. Church's Fried Chicken, Inc., 575 So. 2d 1108 (Ala.1991); Douglas v. McDonald's Corp., 565 So. 2d 137 (Ala.1990); Morton v. Prescott, 564 So. 2d 913 (Ala.1990); Bailey v. Bruno's, Inc., 561 So. 2d 509 (Ala.1990); Williams v. First Alabama Bank, 545 So. 2d 26 (Ala. 1989); Nail v. Jefferson County Truck Growers Ass'n, Inc., 542 So. 2d 1208 (Ala. 1988); O.H. v. Ballard Realty Co., 516 So. 2d 519 (Ala.1987); Childers v. Winn-Dixie Stores, Inc., 514 So. 2d 879 (Ala. 1987); Frazier v. Laborers Int'l Union of N. America, Local No. 559, 502 So. 2d 743 (Ala.1987); Petrella v. Peddler's Motor Inn Best Western, 488 So. 2d 497 (Ala. 1986); Simpson v. Wolf Ridge Corp., 486 So. 2d 418 (Ala.1986); Law v. Omelette Shop, Inc., 481 So. 2d 370 (Ala.1985); Ortell v. Spencer Cos., 477 So. 2d 299 (Ala.1985); Henley v. Pizitz Realty Co., 456 So. 2d 272 (Ala.1984); Stripling v. Armbrester, 451 So. 2d 789 (Ala.1984); Latham v. Aronov Realty Co., 435 So. 2d 209 (Ala.1983); Berdeaux v. City National Bank of Birmingham, 424 So. 2d 594 (Ala.1982); Gaskin v. Republic Steel Corp., 420 So. 2d 37 (Ala. 1982); and Parham v. Taylor, 402 So. 2d 884 (Ala.1981). "`Special circumstances' exist only when the defendant `knew or had reason to know of a probability of conduct by third persons that would endanger the plaintiff.'" Saccuzzo v. Krystal Co., 646 So. 2d 595, 596 (Ala.1994), quoting Nail, 542 So. 2d at 1211. Knowledge on the part of the defendant that there is a probability of harm to the plaintiff caused by a third party will create a duty to take reasonable precautions. Henley, 456 So. 2d at 277, cited in Ortell, 477 So. 2d at 299. However, while prior criminal incidents occurring on a premises can indicate such knowledge on the part of the premises owner, they are not conclusive on the question of knowledge. Saccuzzo, 646 So. 2d at 596, citing Williams, 545 So. 2d at 27. This Court has asked the following question in these cases: Does the evidence suggest that the defendant knew, or had reason to know, that actions of a third party on the defendant's premises posed an "`imminent probability of harm'" to the plaintiff? Henley, 456 So. 2d at 277, quoting Stripling, 451 So. 2d 789. This question is really one of foreseeability. This Court has rarely held that the danger was so imminent that the defendant should have foreseen the eventual consequence. Saccuzzo, 646 So. 2d at 596; see Ex parte McRae's, 703 So. 2d at 352; Ortell, 477 So. 2d at 299; CIE Service Corp. v. *1282 Smith, 460 So. 2d 1244, 1247 (Ala.1984). Because of this extremely high standard, for the evidence to support the imposition of liability it must indicate that the harm to the plaintiff was impending and was plainly evident to the defendant. Mrs. Hail argues that because 8 to 13 fires had occurred in the building in the previous 13 months and because the maintenance man was suspected of setting the fires, the Association should have known of the potential harm and should have dismissed him. She argues that dismissing him would have been a reasonable step for the Association to take. That step, she says, would have prevented the fire that caused Mr. Hail's death. These 8 to 13 previous fires were all smaller fires and were all located in a trash chute, and no one, not even the maintenance man, was ever charged with starting them. The Association did take steps to try to protect the residents, by holding educational meetings and installing fire-safety equipment, but the record contains no evidence indicating that the Association had, or should have had, any knowledge that the fatal fire was imminent or even probable. Nor is there any evidence, only speculation, that the maintenance man started any fire, including the one that caused Mr. Hail's death. This evidence simply does not rise to the high standard required by Alabama law for holding the Association and Metcalf Realty Company liable for the criminal acts of a third party. The trial court correctly entered the summary judgments for Regency Terrace Owners Association and Metcalf Realty Company. JOHNSTONE, Justice (concurring in part and dissenting in part). I respectfully dissent from the holding in the discussion of Bagby's summary judgment that Mrs. Hail, the nonmoving party, bore the initial evidentiary burden in accordance with the new rule promulgated by Ex parte General Motors Corp., 769 So. 2d 903 (Ala.1999). I dissent in this regard for the same reasons expressed in my dissent in Ex parte General Motors. Thus, while I agree that Bagby's summary judgment should be reversed, I do not agree that Mrs. Hail should again be put to her proof in opposition to Bagby's motion inasmuch as Bagby has offered no evidence that Mr. Hail was not on the defective elevator. I concur in the other holdings in the main opinion. PER CURIAM. The plaintiff, Barbara B. Hail, as executrix of the estate of Jack Lee Hail, deceased, appealed from summary judgments entered in favor of the defendants Regency Terrace Owners Association (the "Association"), Metcalf Realty Company, Inc. ("Metcalf"); and Bagby Elevator Company, Inc. ("Bagby"). Mrs. Hail had filed a wrongful-death action against those defendants and other defendants who are not parties to this appeal. This Court, on December 22, 1999, issued an opinion reversing the summary judgments in favor of the Association and Metcalf because we concluded that Mrs. Hail had submitted sufficient evidence to create a jury question on the issue of foreseeability. In addition, we remanded the cause, with instructions for the trial court 782 So. 2d at 1279. Pursuant to our instructions, the trial court made its return to this Court on February 15, 2000. The court entered an order in which it stated that it did not consider the affidavits of Whitten, Waldrop, and Munger before it entered its order of March 1, 1999, because, it said, the affidavits were not timely filed and Mrs. Hail offered no justification for their untimeliness. However, the court said, after Mrs. Hail filed, on March 31, 1999, a motion asking the court to reconsider the summary judgment it had entered in favor of Bagby, it did consider those affidavits, and upon considering them determined that they did not present evidence sufficient to defeat Bagby's motion for a summary judgment. The only issue now before us on the return to our remand is whether the trial court properly entered the summary judgment in favor of Bagby. As to the timeliness of the affidavits, the trial court stated that when it entered the summary judgment in favor of Bagby on November 12, 1998, Mrs. Hail had offered no evidence to refute Bagby's motion. On January 27, 1999, Bagby filed its morion asking the trial court to make the interlocutory summary judgment final pursuant to Rule 54(b), Ala.R.Civ.P. The court said that it held a hearing on that morion on February 16, 1999, and that as of the time of the hearing Mrs. Hail still had filed no evidentiary material in opposition to Bagby's summary-judgment motion. It was not until February 19 and 23, 1999, that Mrs. Hail filed the affidavits of Whitten, Waldrop, and Munger. Those affidavits were not accompanied by any motion to alter or amend the summary judgment or any other motion directing the trial court's attention to them. The trial court stated that those affidavits "were simply not timely filed" and that when it entered its order making the summary judgment final it was relying on the materials that were before it when it heard the motion. As to the affidavits themselves, the trial court discussed how each related to Mrs. Hail's claims against Bagby. The trial court determined that much of Whitten's affidavit was based on speculation, conjecture, and hearsay, and that those portions of the affidavit that were based on actual knowledge were insufficient to defeat Bagby's motion for summary judgment. Waldrop's affidavit was similar, the trial court said, and also was insufficient to defeat Bagby's motion. The trial court determined that Munger's affidavit was not based on personal knowledge or even on eyewitness accounts of the events pertinent to this case, that the affidavit assumed facts that were not supported by any of the evidence then before the court, and that this affidavit, as well, was insufficient to defeat Bagby's motion. The trial court concluded: *1284 After reviewing the trial court's February 15, 2000, order on remand, we conclude that that trial court did not abuse its discretion in striking the affidavits of Whitten, Waldrop, and Munger. Johnson v. Allstate Ins. Co., 505 So. 2d 362 (Ala. 1987) (in the absence of a showing of excusable neglect, the trial court does not abuse its discretion by refusing to accept out-of-time affidavits submitted in connection with a motion for summary judgment). SUMMARY JUDGMENT IN FAVOR OF BAGBY ELEVATOR COMPANY AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. [1] The crimes mentioned in Henley had actually occurred during a 10-year period ending 25 days after the rape. The Henley opinion does not indicate whether any of the crimes mentioned had occurred after the rape, but the effect of the listing is that the Henley court was apparently willing to assume that all of those crimes had occurred before the rape.

October 27, 2000

9a758c12-e4d8-4d80-ac59-0a734857e4c2

Ex Parte Delta Air Lines, Inc.

785 So. 2d 327

1990911

Alabama

Alabama Supreme Court

785 So. 2d 327 (2000) Ex parte DELTA AIR LINES, INC. (Re Delta Air Lines, Inc. v. Nobie Decoff). 1990911. Supreme Court of Alabama. September 15, 2000. James W. Garrett, Jr., Charles Ali Everage, and William H. Webster of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for petitioner. Frank H. Hawthorne, Jr., and C. Gibson Vance of Hawthorne, Hawthorne & Vance, L.L.C., Montgomery, for respondent. MADDOX, Justice. The sole issue presented in this case is whether the plaintiffs tort claim against an air carrier for damages for lost jewelry that was stored in luggage is preempted by federal law. The facts of this case appear undisputed. On January 24, 1998, Nobie Decoff purchased a ticket from Delta Air Lines, Inc. ("Delta"), for a flight on February 22, 1998, from Miami, Florida, to Atlanta, Georgia. The following statement was printed on that ticket: (C.R. at 140.) The terms printed on Decoff's ticket incorporated by reference additional terms in a document Delta refers to as its "tariff agreement," which states: (C.R. at 166.) On the date of the flight for which the ticket was issued, February 22, 1998, Decoff and her husband arrived in Miami at the end of a cruise. When they disembarked from the cruise ship, a porter carried their luggage down the pier to a location where a Delta agent was accepting luggage for check-in and transfer to Delta flights departing from the Miami airport. The Decoffs had not obtained necessary security stickers for their luggage, and the Delta agent told them that she could not accept their luggage for check-in without the stickers. Mr. Decoff testified, and his wife confirmed his testimony, that the Delta *329 agent told the Decoffs, referring to their luggage: "Just put it right here; I'll take care of it; it will be safe with me." Delta does not dispute this testimony. The Decoffs turned their luggage, including Mrs. Decoff's carry-on bag, over to the Delta agent and left to obtain the security stickers. When they returned to the Delta check-in location, their bags were gone. The Delta agent said that the bags were already on a truck for transfer to the airport. Mrs. Decoff told the agent that she did not want to check her carry-on bag. The items in the bag included jewelry. The Delta agent refused to retrieve the carry-on bag. When the Decoffs arrived at the Atlanta airport, the carry-on bag was missing. A Delta agent returned it to them at their Montgomery home a few days later, but Mrs. Decoff's jewelry, which was worth $6,327.70, was missing. Mrs. Decoff sued Delta in the Montgomery County District Court, alleging claims of negligence and breach of contract. In her negligence claim she alleged that Delta had "negligently handled" an item of luggage and that, as a result of its negligence, she had suffered damage "including but not limited to the loss of the family jewelry and mental anguish." (C.R. at 3.) The district court entered a judgment awarding her damages of $5,000. Delta appealed to the circuit court. In the circuit court, Delta moved for a summary judgment, arguing that Decoff's claims were preempted by federal law. The circuit court denied the motion, and a bench trial ensued. At the close of her case, Decoff dismissed her breach-of-contract claim. The trial judge subsequently entered a judgment awarding Decoff damages of $6,327. Delta moved the court to grant a new trial or to vacate the judgment; the trial court denied the motion. Delta appealed. The Court of Civil Appeals, on December 3, 1999, affirmed, without an opinion. Delta Air Lines, Inc. v. Decoff (No. 2981206), ___ So.2d ___ (Ala. Civ.App.1999) (table). Delta petitioned this Court for certiorari review, and we granted its petition. After carefully reviewing the applicable law, we conclude that the provisions of federal law apply, that Decoff's state-law claim has been preempted, and that the judgment of the Court of Civil Appeals is therefore due to be reversed. In reviewing the disposition of a motion for summary judgment, "we utilize the same standard as ... the trial court in determining whether the evidence before [it] made out a genuine issue of material fact" and whether the movant was "entitled to a judgment as a matter of law." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988). Rule 56(c), Ala.R.Civ.P., provides that a summary judgment is proper when the movant 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, unless the nonmovant rebuts that showing by presenting substantial evidence creating a genuine issue of material fact. See § 12-21-12, Ala.Code 1975; Cain v. Sheraton Perimeter Park S. Hotel, 592 So. 2d 218, 219-20 (Ala.1991). The facts are not in dispute. Thus, our inquiry is limited to determining whether, based on the facts and the applicable law, Delta was entitled to a judgment as a matter of law. This Court has previously considered a case involving claims by defendant airlines that federal law preempted state-law causes of action. In Eastern Air Lines v. Williamson, 282 Ala. 421, 211 So. 2d 912 *330 (1968), Eastern Air Lines failed to transfer the plaintiff's luggage to her connecting flight when she changed planes. Eastern rerouted the luggage onto a flight that crashed, and the plaintiff's luggage was not recovered. The plaintiff sued Eastern, alleging that it had breached its contract with her. This Court noted that 49 U.S.C.A. § 1373, part of the Federal Aviation Act of 1958 (49 U.S.C.A. § 1301 et seq.), required every airline to file a tariff with the Civil Aeronautics Board. The terms of a tariff were deemed by law to be incorporated into the contract of carriage. Accordingly, this Court held that Eastern's liability was limited to $250, as provided in its tariff.[1] Since Williamson was decided, a significant body of law has evolved that is relevant to the question in this case. Until 1978, the Civil Aeronautics Board ("C.A.B.") regulated the interstate airline industry, under the authority of the Federal Aviation Act of 1958, 72 Stat. 731, as amended, 49 U.S.C.A. § 1301 et seq. (1976 ed.) (the "1958 Act"). Although the C.A.B. exercised broad authority over the industry, the 1958 Act did not include a preemption clause. In fact, the 1958 Act included a savings clause, which provided: Federal Aviation Act of 1958, Pub.L.No. 85-726, § 1106, 72 Stat. 731, 798 (1958) (formerly codified at 49 U.S.C. § 1506 (1976 ed.), now recodified at 49 U.S.C.A. 40120 (1997): "A remedy under this part is in addition to any other remedies provided by law."). In 1978, seeking "to encourage, develop, and attain an air transportation system which relies on competitive market forces to determine the quality, variety, and price of air services," the Congress enacted the Airline Deregulation Act of 1978 (the "A.D.A."), 92 Stat. 1705, ending the C.A.B.'s regulatory oversight of the interstate airline industry. The A.D.A. included a preemption clause, which provided: 92 Stat. at 1707; 49 U.S.C. § 1305 (1976 ed., supp. 3). In 1994, the Congress revised this section and recodified it as 49 U.S.C.A. § 41713(b)(1): In making its revision, the Congress expressly stated that it intended to make no substantive change. Pub.L. 103-272, § 1(a). In two recent cases, American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S. Ct. 817, 130 L. Ed. 2d 715 (1995), and Morales v. Trans World Airlines, Inc., 504 U.S. 374, 112 S. Ct. 2031, 119 L. Ed. 2d 157 (1992), the United States Supreme Court has examined the A.D.A. preemption clause. Neither case squarely addresses the issue we face today. However, they are both instructive. In Morales, the Court considered "whether the [A.D.A.] pre-empts the *331 States from prohibiting allegedly deceptive airline fare advertisements through enforcement of their general consumer protection statutes." Morales, 504 U.S. at 378, 112 S. Ct. 2031. The Court noted that preemption may be either express or implied and that the touchstone of its analysis is determining Congress's intent. Id. at 383, 112 S. Ct. 2031. To determine that intent, the Court turned to an examination of the language of the preemption provision, focusing on the phrase "relating to." The Court defined the phrase as "having a connection with, or reference to, airline `rates, routes, or services.'" Id. at 384, 112 S. Ct. 2031. Thus, the Court held that, by using that phrase, Congress "express[ed its] broad pre-emptive purpose." Id. at 383, 112 S. Ct. 2031. Rejecting the argument that "only state laws specifically addressed to the airline industry are preempted," id. at 386, 112 S. Ct. 2031, the Court concluded that the general consumer-protection statutes were preempted because they purported to govern airline advertisements and, thus, related to airline rates. The Court noted that even "beyond the guidelines' express reference to fares, it is clear as an economic matter that state restrictions on fare advertising have [a] forbidden significant effect upon fares." Id. at 388, 112 S. Ct. 2031. At the conclusion of its opinion, the Court included a significant caveat to its broad definition of "relates to." In response to the argument that it was stepping onto a slippery slope, the Court stated that "`[s]ome state actions may affect [airline fares] in too tenuous, remote, or peripheral a manner' to have pre-emptive effect.'" Id. at 390, 112 S. Ct. 2031, quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S. Ct. 2890, 77 L. Ed. 2d 490 (1983). The Supreme Court decided Wolens three years after it had decided Morales. In Wolens, a class of participants in an airline's frequent-flyer program filed an action alleging that the airline had breached its contract with them.[2] The airline argued that because the A.D.A. had transferred some of the C.A.B.'s oversight functions to the U.S. Department of Transportation ("D.O.T."), the D.O.T. should resolve disputes between airlines and their customers. In other words, the airline argued that the effect of the A.D.A.'s pre-emption clause was that state courts could not hear breach-of-contract claims. The Court concluded that the plaintiffs' complaint did "relate" to the airline's rates. However, it also concluded that pursuing the class's breach-of-contract claim in a state court did not amount to "enforc[ement] [of] any law, rule, regulation, standard, or other provision having the force and effect of law," 513 U.S. at 229, 115 S. Ct. 817, as the revised preemption clause prohibits. The Court held that the preemption clause did not "shelter airlines from suits ... seeking recovery solely for the airline's alleged breach of its own, self-imposed, undertakings.... [T]erms and conditions airlines offer and passengers accept are privately ordered obligations...." Id. at 228-29, 115 S. Ct. 817. Thus, the Court concluded "that the [A.D.A.] permits state-law-based court adjudication of routine breach-of-contract claims." Id. at 232, 115 S. Ct. 817. The Court further explained: Id. at 232-33, 115 S. Ct. 817. As a result of Morales and Wolens, it is clear that general breach-of-contract claims may be resolved by state courts. Short of that relatively clear rule, courts have struggled to define the criteria that will trigger the application of the preemption provisions. Two federal appellate courts have concluded that claims by airline employees or former employees that they were victims of age discrimination do not trigger pre-emption because they are not related to the airline's rates, routes, or services. See Parise v. Delta Airlines, Inc., 141 F.3d 1463 (11th Cir.1998); and Abdu-Brisson v. Delta Air Lines, Inc., 128 F.3d 77 (2d Cir.1997). One federal appellate court has held that an airline's decision to allow smoking on its international flights was not related to a service and, thus, that a tort claim alleging injuries as a result of that decision was not preempted. Duncan v. Northwest Airlines, Inc., 208 F.3d 1112 (9th Cir.2000). Two state supreme courts have held that personal-injury claims do not trigger preemption. In Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274 (Tex.1996),[3] the plaintiffs in two consolidated cases alleged that they had been injured as a result of negligence on the part of agents of Continental Airlines. The Texas Supreme Court reviewed Morales and Wolens and attempted to apply the rules of those cases to the plaintiffs' negligence claims. In light of the broad definition of "related to" in Morales, the court concluded that the plaintiffs' claims did relate to the service of the airline. The court reasoned: Kiefer, 920 S.W.2d at 281. However, the Court held that pursuing a personal-injury negligence claim did not amount to enforcing a state law, as that concept is used in the A.D.A. preemption clause. In reaching that conclusion, the court acknowledged the difficulty in drawing the line between those claims that are preempted and those that are not. "The answer to the question [whether the claim was preempted] depends upon several considerations expressed in Wolens, not all of which point to the same answer." Id. at 281. In reaching its conclusion, however, the court stated: Id. at 282. The Court, however, also stated: Id. at 282. At least one federal appellate court has also recognized that "[s]tates can impose their own substantive standards through the common law as well as through statutory enactments." Travel All Over The World, Inc., v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1435 (7th Cir.1996). In that case, the court concluded that tort claims based on an airline's refusal to transport passengers were preempted. In concluding that the plaintiffs' claims were preempted, the court wrote: * "In fact, Wolens acknowledged this by noting that `some state-law principles of contract law ... might well be preempted to the extent they seek to effectuate the State's public policies....' 513 U.S. at 232[n. 8], 115 S. Ct. at 826 n. 8 (quoting Brief for the United States as Amicus Curiae)." 73 F.3d at 1435. Similarly, in Smith v. Comair, Inc., 134 F.3d 254 (4th Cir.1998), the court held that a plaintiff's claim an airline had falsely imprisoned him by refusing to allow him to board a connecting flight was preempted. In two cases involving claims of negligence that allegedly resulted in damage or loss of luggage, the United States Court of Appeals for the Ninth Circuit and the Florida Supreme Court held the plaintiffs' claims to be preempted. See Deiro v. American Airlines, Inc., 816 F.2d 1360 (9th Cir.1987); and Wackenhut Corp. v. Lippert, 609 So. 2d 1304 (Fla.1992). *334 Reading Morales and Wolens together with the language of the preemption provision, we conclude that a claim is preempted if it is "related" to an airline's rates, routes, or services and if pursuing the claim in a state court amounts to enforcing a state law. Decoff does not dispute that under certain circumstances her claim would have been preempted, but she argues in her brief that "the undisputed facts in the case at bar clearly show that Delta's agent stepped outside the tariff boundaries when she offered to protect and keep safe the luggage until Decoff's return (including the carry-on bag that was not being checked with Delta)." We cannot accept Decoff's argument. The evidence shows that Delta contracted to transport the Decoffs by air from Miami to Atlanta. That contract, as represented by the "tariff" incorporated into the contract by the ticket, also included the transportation of the Decoffs' baggage. (C.R. at 97.) Therefore, the claim that Delta negligently handled Mrs. Decoff's baggage is a claim "related to" Delta's service, as that term is used in the preemption clause. Although Mrs. Decoff attempts to distinguish this Court's Williamson case, we conclude that the law established in Williamson is broad enough to cover the factual situation presented in this case. Williamson was decided by this Court in 1968, 10 years after the Congress had adopted the Federal Aviation Act of 1958, which included the savings clause, and 10 years before the Congress adopted the A.D.A., which included the preemption clause. Thus, even before the preemption clause was adopted, this Court had concluded that the Williamson plaintiff's negligence claim was "determined by federal law" and that the liability of the air carrier was limited by the terms of the tariff. Williamson, 282 Ala. at 425-26, 211 So. 2d at 915. Accordingly, we reverse the judgment of the Court of Civil Appeals, and we remand the cause with instructions for that court to remand it to the circuit court for an order or proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and HOUSTON, SEE, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. [1] This Court cited Williamson for the same general proposition, that terms in a tariff are construed as part of the contract of carriage, in Iyegha v. United Airlines, Inc., 659 So. 2d 45 (Ala.1995); and Newsome v. Trans International Airlines, 492 So. 2d 592 (Ala.1986). [2] The class plaintiffs also alleged that the airline had breached an Illinois consumer-protection statute. The Supreme Court, on the authority of Morales, held that the statutebased claim was preempted. [3] See also Knopp v. American Airlines, Inc., 938 S.W.2d 357 (Tenn.1996) (holding that a personal-injury negligence claim was not preempted).

September 15, 2000

d1b01f60-0e30-4e0c-8d2d-a091cad4d6b9

Marsh v. Green

782 So. 2d 223

1981897

Alabama

Alabama Supreme Court

782 So. 2d 223 (2000) Dixie MARSH v. W. Rodgers GREEN, M.D. 1981897. Supreme Court of Alabama. September 22, 2000. Rehearing Denied December 29, 2000. *224 Peter F. Burns of Burns, Cunningham & Mackey, P.C., Mobile; and G. Daniel Evans, Birmingham, for appellant. *225 Norman E. Waldrop, Jr., and Broox G. Holmes, Jr., of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, L.L.C., Mobile, for appellee. LYONS, Justice. Dixie Marsh appeals from a judgment entered on a jury verdict in favor of W. Rodgers Green, M.D., in her medical-malpractice action against Dr. Green. We reverse and remand. In February 1993, Marsh discovered a mass in her left breast. She had a mammogram, but it did not reveal the mass. However, the mammogram did reveal the presence of microcalcifications, which can suggest the early stages of a malignancy. Marsh consulted Dr. Green, who is a surgeon. On March 12, Dr. Green performed a biopsy and excised certain tissue for examination. The excised tissue was delivered to Pathology Laboratory Associates, P.A. ("the Laboratory"), where Dr. Brian C. Wenzel, a pathologist, examined it. Dr. Wenzel reported to Dr. Green that the tissue examined was not malignant. Dr. Green reported to Marsh that she did not have a malignancy. A mass in Marsh's breast still was present, however, and she continued to see Dr. Green throughout the summer of 1993. Marsh says that during a postoperative examination on March 19, Dr. Green noted that there was still a mass in her breast and told her to return in six months or sooner if problems arose. She says that she visited his office on April 12, complaining of a painful lump in her breast, and that he told her to return in three months for a mammogram to determine whether he should excise the mass. She says that when she saw Dr. Green on May 7, still concerned about the mass, he told her that her pain resulted from fibrocystic disease and a small nodule in her left breast and also told her that he did not think the nodule was cancerous. Marsh stated that Dr. Green discussed with her the possibility of proceeding with a biopsy at that time or returning in September and then having a mammogram. She also stated that Dr. Green told her that even if the mass was cancerous, waiting four or five months would make no difference in her prognosis. On September 28, Dr. Green removed the mass from Marsh's breast. A biopsy of that tissue revealed the presence of infiltrating ductal cell carcinoma. Nineteen of 22 lymph nodes biopsied tested positive for cancer. Marsh underwent a mastectomy, chemotherapy, and other treatment, including a bone-marrow transplant. On March 10, 1995, Marsh, acting pro se, sued Dr. Green; his professional corporation, W. Rodgers Green, M.D., P.C. (the trial court dismissed the corporation; it is not a party to this appeal); and fictitiously named defendants, alleging that Dr. Green had committed medical negligence in failing to remove the cancerous mass from her breast. Marsh also alleged, among other things, that Dr. Green's negligence combined and concurred with the negligence of the fictitiously named defendants to allow her cancer to spread, and that she suffered injuries as a direct or proximate result of the combining and concurring negligence on the part of Dr. Green and the agents, servants, and employees of Dr. Green and his professional corporation. She filed her complaint within two years of the March 12, 1993, surgical procedure. Initially, Marsh did not sue Dr. Wenzel or the Laboratory. Marsh deposed Dr. Green three years and two months after the date of the initial biopsy. By the time she took Dr. Green's deposition, she was represented by counsel. During his deposition, he testified that at the time of the initial biopsy he could not find, and did not remove, the mass that later was found to *226 be cancerous; that, at that time, the breast tissue looked normal and not cancerous; and that the tissue he removed for analysis was not cancerous. The pathology report from Dr. Wenzel stated that the entire specimen had been submitted for microscopic examination and that it was benign. While March's action was pending, Dr. Wenzel and the Laboratory continued to recut slides of the tissue removed during Marsh's initial biopsy. These slides were given to Dr. Green and his experts. Dr. Wenzel reexamined the tissue in September when Marsh's cancer was discovered, some six months after the initial biopsy; he did so again two years and nine months after the initial biopsy and three years and eight months after the initial biopsy. He remained satisfied with the accuracy of his initial report and so advised Dr. Green. However, approximately one month after the expiration of the four-year limitations period during which an action alleging medical negligence could be commenced, Dr. Wenzel detected for the first time the presence of cancerous tissue in specimens removed during Marsh's initial biopsy. Dr. Green immediately contradicted his deposition testimony by amending his answers to interrogatories to state that the tissue removed during the initial procedure indeed had been cancerous. Marsh then deposed Dr. Wenzel. On June 3, 1997, Marsh amended her complaint to charge Dr. Wenzel and the Laboratory with medical negligence in failing to detect the cancerous tissue. Marsh's amended complaint included allegations that the Laboratory had breached a fiduciary duty to her and had breached an implied contract when it disseminated slides of her tissue without her knowledge or consent. Dr. Wenzel and the Laboratory moved for a summary judgment, arguing that the limitations period had run and Marsh's claims were time-barred and, further, that the allegations relating to the dissemination of her tissue were insufficient, as a matter of law, to be actionable. The trial court entered a summary judgment in favor of Dr. Wenzel and the Laboratory on both grounds argued, and it certified the summary judgment as final pursuant to Rule 54(b), Ala.R.Civ.P. We affirmed the judgment, holding that, as to Marsh's medical-negligence claims, the doctrine of relation back was not available to her because she had known Dr. Wenzel's identity before the four-year statute-of-limitations period expired. We also affirmed the judgment as to Marsh's claims alleging breach of a fiduciary duty and breach of an implied contract. See Marsh v. Wenzel, 732 So. 2d 985 (Ala.1998). Marsh's claims against Dr. Green proceeded to trial. At trial, he testified that his treatment of Marsh was within the standard of care observed by surgeons under like circumstances. Dr. Green presented the testimony of two surgeons as expert witnesses; they also testified that his treatment of Marsh was within the standard of care. Dr. Michael Meshad testified that, even if Marsh's cancer had been detected in March 1993, a mastectomy still would have been necessary because her cancer had metastasized before her March 1993 visit with Dr. Green. At trial, Dr. Green admitted that, after he saw the initial pathology report, he told Marsh that there was only a one-percent chance that she had cancer, but he said during his testimony that he had no medical basis for making such a statement. He acknowledged telling Marsh that waiting four or five months would not affect her prognosis, even if she had cancer. Dr. Green also testified that, if he had known in March that the mass was malignant, he would not have told her to wait until September. *227 Marsh submitted to the trial court instructions 28.04 and 28.05, Alabama Pattern Jury Instructions: Civil (2d ed.1993), on the law of combining and concurring negligence, as well as the following charge taken from Phillips v. Anesthesia Services, P.C., 565 So. 2d 127 (Ala.1990): Id. at 128 (quoting from a jury charge requested in that case by the plaintiff Phillips). The trial court refused to give those charges. The jury returned a verdict for Dr. Green, and the court entered a judgment on that verdict. Marsh appeals. Marsh argues that the verdict is against the great weight of the evidence because Dr. Green admitted that he gave medical advice that caused her to delay and thereby allow the cancer to spread. Specifically, Marsh contends that one of her medical-malpractice claims against Dr. Green was based upon undisputed evidence indicating that he told Marsh that, even if the mass was cancerous, waiting four or five months to treat it would not be detrimental. Jury verdicts carry a presumption of correctness. We decline to substitute our judgment for that of the jury in matters dealing with credibility of witnesses and weight of the evidence. See Ford Motor Co. v. Burdeshaw, 661 So. 2d 236, 238 (Ala.1995); Delchamps, Inc. v. Larry, 613 So. 2d 1235, 1239 (Ala.1992). The issues whether Dr. Green complied with the standard of care and whether delay contributed to Marsh's injuries were sharply contradicted at trial. We cannot say the trial court erred in denying Marsh's motion for a new trial on the ground that the verdict was against the weight of the evidence. Marsh argues that the trial court erred in refusing to charge the jury on the law of combining and concurring negligence. Under the law of combining and concurring negligence, Dr. Green can be liable for his own negligence, notwithstanding the fact that others, who are not his agents, could be liable for their own negligence. See Davison v. Mobile Infirmary, 456 So. 2d 14, 25 (Ala.1984). Marsh contends that she was entitled to instructions on combining and concurring negligence because Dr. Green had blamed Dr. Wenzel for Dr. Green's failure to diagnose the cancer. At trial, after Dr. Green said he was not "blaming Dr. Wenzel of anything," Marsh specifically asked Dr. Green, "But you're saying it's his fault that you didn't take the mass out; aren't you?" No objection was interposed on the ground that Dr. Green was not qualified to answer a question concerning the standard of care owed by a pathologist. Dr. Green answered, "There was an error in his path report, yes." During closing argument, Dr. Green stated, "I understand that Dr. Wenzel comes in here with some baggage. I understand about the mistake he made. I know that. I understand that...." By characterizing the conduct of Dr. Wenzel, Marsh contends that Dr. Green placed the question of combining and concurring negligence at issue. In Atkins v. Lee, 603 So. 2d 937 (Ala. 1992), Charles and Glendon Lee sued Children's Hospital and Dr. Colby Atkins, a resident doctor at the hospital, alleging that they had wrongfully caused the death *228 of the Lees' son. The jury returned a verdict against Dr. Atkins and Children's Hospital in the amount of $6,875,000. The trial court entered a judgment on that verdict. On appeal, Dr. Atkins argued that the trial court had erred in giving the following jury charge: Id. at 943. Dr. Atkins argued that "`[t]here was no evidence presented at trial that raised an issue of concurring and combining negligence of a third person not a party to the lawsuit.'" Id. (quoting from Dr. Atkins's brief). This Court noted that the record was replete with testimony regarding the conduct of the nurses assigned to the Lees' son, relative to the procedures and standards used to treat the patient, and it concluded that the jury instruction did not provide a basis for reversing the judgment. Although Atkins v. Lee was decided before the Medical Liability Act ("MLA") was enacted, it illustrates that a defendant doctor's blaming other health-care providers, the nurses in that case, can make the question of combining and concurring negligence an issue. The MLA specifies the plaintiff's burden of proof in a medical-malpractice action. Section 6-5-548(a), Ala.Code 1975, reads: If a physician injects the fault of another health-care provider not similarly situated to him, can that physician avoid making combining and concurring negligence an issue by pointing to the requirements of § 6-5-548(a), requiring proof of the breach of the standard of care by evidence from a similarly situated health-care provider, and attacking the evidence as lacking in this respect? We answer this question in the negative. The MLA was enacted to protect the public from increased costs. § 6-5-540. The MLA does so by imposing strict standards on actions against health-care providers. Clearly, it functions as a shield. To permit a health-care-provider defendant to inject the alleged fault of another health-care provider from a different specialty and then avoid any instruction on combining and concurring negligence by insisting upon the proof requirement of § 6-5-548(a) would allow the defendant to use the statute as a sword, not a shield. We analogize this circumstance to "opening the door," the situation where allowing or offering inadmissible evidence makes matters relevant that otherwise the fact-finder would not be able to consider. See Charles W. Gamble, McElroy's Alabama Evidence, § 14.01 (5th ed.1996). Because he presented evidence characterizing Dr. Wenzel as at fault and injected an argument about Dr. Wenzel's alleged mistake, notwithstanding other testimony in which he disclaimed any attempt to blame Dr. Wenzel, Dr. Green should be estopped to insist on strict application of the § 6-5-548(a) standard of proof as to Dr. Wenzel's conduct. Dr. Green also argues *229 that the requested instruction was defective because it was not cast in terminology consistent with the concept of medical malpractice as described in the MLA, as opposed to concepts of traditional negligence. Having used terms such as "fault" and "mistake" to describe Dr. Wenzel's conduct, however, Dr. Green cannot now insist on the more sophisticated terminology used in the MLA. If the trial court had charged the jury on combining and concurring negligence, then the jury would have been better equipped to deal with the ignorance of Dr. Green that was caused by Dr. Wenzel's negligence when combining with evidence of negligence on the part of Dr. Green. As previously noted, Marsh also argues that the verdict is against the great weight of the evidence because, she argues, Dr. Green admitted that he gave medical advice that caused her cancer to spread. While we have declined to reverse the judgment for the trial court's failure to grant a new trial as to this issue, we refer to Marsh's contention at this juncture to illustrate the existence of substantial evidence in support of Marsh's claims against Dr. Green. By failing to permit Marsh to argue and to have a jury instruction on combining and concurring negligence, the trial court allowed the jury to give inappropriate weight to Dr. Green's defense based upon his ignorance of the existence of cancer. Because the trial court erred in refusing to give the jury an instruction on combining and concurring negligence, when such a charge was appropriate, based on the testimony and argument of Dr. Green, we must reverse and remand for a new trial. Because we order a new trial, we address other issues that will probably arise again. Marsh argues that the trial court abused its discretion in granting Dr. Green's motion in limine so as to preclude Marsh from introducing evidence that she says tends to prove a "conspiracy of silence" within the Mobile medical community. Marsh argues that, because there is a conspiracy of silence, she could not retain a qualified local medical expert and was forced to hire an out-of-state expert. She contends that by granting Dr. Green's motion in limine, the court prevented her from introducing a compilation of letters that her expert, Dr. Joseph G. Bussey, Jr., wrote and sent to Mobile physicians, briefly summarizing the case and asking the physicians to review the case. Marsh stated that Dr. Bussey received only two responses, one of which was marked "not interested." The other response Dr. Bussey received stated, "I feel certain that I am aware of the case you are referring to in your correspondence, and I do not feel the standard of care in treating this breast mass was violated. Therefore, I will not be of any help in reviewing this case." When Marsh offered these letters as evidence at the conclusion of Dr. Bussey's testimony, the trial court refused to admit these letters as a plaintiff's exhibit but made them a court's exhibit to the record. In addition, Marsh argues that the trial court did not allow her to ask one of Dr. Green's experts, Dr. Michael Meshad, whether he knew of any Mobile doctor who had testified against another Mobile doctor. Marsh relies on Trull v. Long, 621 So. 2d 1278 (Ala.1993), in support of her argument that the trial court erred in granting Dr. Green's motion in limine. Her reliance is misplaced. In Trull, this Court held that the trial court did not abuse its discretion in refusing to allow the plaintiff's expert witness to testify concerning an alleged conspiracy of silence when a *230 proper predicate had not been laid for admission of evidence relating to such an alleged conspiracy. In so holding, the Court discussed Batizy v. Smith, 530 So. 2d 794, 796 (Ala.1988), and stated that although it had affirmed the trial court's ruling in Batizy, it did not intend to hold in that case that evidence of a conspiracy of silence would not be admissible under any circumstances. Trull, 621 So. 2d at 1281. We do not find that Dr. Bussey's letters and the responses or lack thereof provide a sufficient predicate for showing a "conspiracy of silence." Therefore, we hold that the trial court did not abuse its discretion in refusing to allow Marsh to introduce this evidence of speculative probative value. Marsh argues that the trial court erred in denying her motion to declare § 6-5-545, Ala.Code 1975, unconstitutional.[1] Section 6-5-545 provides: Section 6-5-545 abolished in medical-malpractice cases the common-law rule known as the "collateral-source rule." That rule has been explained as follows: 22 Am.Jur.2d Damages § 566 (1988) (citations omitted). This Court first articulated the collateral-source rule in Long v. Kansas City, M. & B. R.R., 170 Ala. 635, 54 So. 62 (1910), and it thereafter consistently held collateral-source evidence inadmissible. See, e.g., Gribble v. Cox, 349 So. 2d 1141, 1143 (Ala. 1977); Carlisle v. Miller, 275 Ala. 440, 444, 155 So. 2d 689, 691 (1963); Vest v. Gay, 275 Ala. 286, 289, 154 So. 2d 297, 299-300 *231 (1963); Sturdivant v. Crawford, 240 Ala. 383, 385, 199 So. 537, 538 (1940). Marsh argues that § 6-5-545 violates her equal-protection and due-process rights because it treats medical-malpractice cases differently from cases based on other torts. She bases her argument on this Court's holding in American Legion Post No. 57 v. Leahey, 681 So. 2d 1337 (Ala.1996). In Leahey, a divided court struck down § 12-21-45, a statutory companion to § 6-5-545. The majority opinion summarized its dissatisfaction with § 12-21-45: 681 So. 2d at 1346. These concerns deal with the wisdom of legislative policy rather than constitutional issues. Matters of policy are for the Legislature and, whether wise or unwise, legislative policies are of no concern to the courts. State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487 (1939). In Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So. 2d 810 (1944), cert. dismissed, 325 U.S. 450, 65 S. Ct. 1384, 89 L. Ed. 1725 (1945), this Court held that a court cannot hold a statute invalid because of its view that "there are elements therein which are violative of natural justice or in conflict with the court's notions of natural, social, or political rights of the citizen." 246 Ala. at 9, 18 So. 2d at 815. When this Court struck down § 12-21-45 in Leahey, supra, Justice Houston, one of three dissenting Justices, wrote: Leahey, 681 So. 2d at 1347-48 (Houston, J., dissenting) (footnotes omitted). The strongest obstacle to sustaining § 6-5-545 is the doctrine of stare decisis, given the Leahey case, where, four years ago, a divided Court struck down § 12-21-45, a counterpart of § 6-5-545 that related to civil cases generally. However, when the Constitution is misinterpreted, the doctrine of stare decisis is not entitled to the deference it otherwise receives. In Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996), the United States Supreme Court stated that, while the doctrine of stare decisis counsels against a reconsideration of precedent, the Court has been particularly willing to reconsider constitutional cases because, in such cases, "`"correction through legislative action is practically impossible."'" Id. at 63, 116 S. Ct. 1114 (quoting Payne v. Tennessee, 501 U.S. 808, 828, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991), in turn quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407, 52 S. Ct. 443, 76 L. Ed. 815 (1932) (Brandeis, J., dissenting)). See, also, Ex parte Dan Tucker Auto Sales, Inc., 718 *233 So. 2d 33, 42-43 n. 10 (Ala.1998) (Lyons, J., concurring specially). We reject Marsh's invitation to substitute our judgment for the policy-making decision the Legislature made in enacting § 6-5-545. We conclude that § 6-5-545 has not been shown to violate the constitution, and we overrule American Legion Post No. 57 v. Leahey to the extent that case held § 12-21-45, Ala.Code 1975, unconstitutional.[2] REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, SEE, BROWN, and JOHNSTONE, JJ., concur. ENGLAND, J., concurs in the result. COOK, J., concurs in part and dissents in part. COOK, Justice (concurring in part and dissenting in part). I agree that the judgment is due to be reversed and the case remanded for a new trial, because of the court's refusal to charge the jury on the law of combining and concurring negligence. However, the majority does not stop there, but goes on to overrulein a most summary fashion American Legion Post No. 57 v. Leahey, 681 So. 2d 1337 (Ala.1996). It does so in order to invigorate Ala.Code 1975, § 6-5-545, which was all but dead after this Court, only four years ago in Leahey, declared its counterpart, Ala.Code 1975, § 12-21-45, to be unconstitutional. Section 12-21-45 provided in pertinent part: Section 12-21-45 differs in no material respect from § 6-5-545. Essentially, they are the same provision, merely inserted in different chapters of the Code. The essence of this Court's holding in Leahey was that § 12-21-45 was so incomprehensible as to be void for vagueness i.e., it violated the equal-protection and due-process guarantees of the Constitution of Alabama. In that connection, we said: 681 So. 2d at 1345-47 (emphasis added except where noted). Indeed, at least one federal court has agreed that "[t]he language of § 12-21-45," which is functionally identical to that of § 6-5-545, "is so incongruous and so self-contradictory as to be virtually unworkable and to invite an attack on the statute's constitutionality under the doctrine of `void for vagueness' as well as under `due process' scrutiny." Killian v. Melser, 792 F. Supp. 1217, 1218 (N.D.Ala. 1992). That court further stated: 792 F. Supp. at 1219-20 (emphasis added). I agree with these observations. "[A] standardless [statute] is subject to facial attack under the due process clause though the vagueness doctrine." Brockert v. Skornicka, 711 F.2d 1376, 1381 (7th Cir.1983). "A state's legislative enactment is void for vagueness under the due process clause of the fourteenth amendment if it `is inherently standardless, enforceable only on the exercise of an unlimited, and hence arbitrary, discretion vested in the state.'" Margaret S. v. Edwards, 794 F.2d 994, 999 (5th Cir.1986). This is so, because "a vague law lacks explicit standards for its application, and thus `impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.'" Brockert, supra, 711 F.2d at 1381 (quoting Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972)). Otherwise stated, "a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves ... judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case." Giaccio v. Pennsylvania, 382 U.S. 399, 402-03, 86 S. Ct. 518, 15 L. Ed. 2d 447 (1966). Even outside the First Amendment context, a statute may be challenged as facially unconstitutional where it lacks an "`an unmistakable core that a reasonable person would know is forbidden by the law.'" *236 United States v. Private Sanitation Indus. Ass'n of Nassau/Suffolk, Inc., 793 F. Supp. 1114, 1158 (E.D.N.Y.1992) (quoting Kolender v. Lawson, 461 U.S. 352, 370-71, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983) (White, J., dissenting)). That is this case. Section 6-5-545 has not the barest "core" that is clear to a person of ordinary intelligence, or, to anyone else, of whom I am aware. For example, Judge Acker has stated: Killian, 792 F. Supp. at 1220 (emphasis added except where noted). See also Craig v. F.W. Woolworth Co., 866 F. Supp. 1369, 1373 (N.D.Ala.1993) ("Section 12-21-45 opens the door to chaos."), aff'd, 38 F.3d 573 (11th Cir.1994). Fortunately, this Court did speak authoritatively in Leahey, holding § 12-21-45 unconstitutional. Unfortunately, the majority today chooses to take the state back into the "chaos" and illegality that were the rule before Leahey. Section 6-5-545 is patently unconstitutional as violating both federal and state due-process guarantees. Moreover, it violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, as well as the equal-protection guarantees of the constitution of Alabama.[3] "While the due process and equal protection guaranties are not coterminous in their spheres of protection, equality of right is fundamental in both. Each forbids class legislation arbitrarily discriminatory against some and favoring others in like circumstances." Opinion of the Justices, No. 102, 252 Ala. 527, 530, 41 So. 2d 775, 777 (1949). Section 6-5-545 does not pass muster under even the least stringent of the three *237 levels of equal-protection analysis required by the United States Constitution. Under that analysis, the reviewing court must determine that there is a "`rational relationship between the disparity of treatment [the challenged statute creates] and some legitimate governmental purpose.'" Calloway v. District of Columbia, 216 F.3d 1, 8 (D.C.Cir.2000) (quoting Heller v. Doe, 509 U.S. 312, 320, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993)). Section 6-5-545 arbitrarily relegates plaintiffs to two distinct classesthose who have insurance and those who do not. The purpose of the statute was to remedy a purported "unavailability of health care as a result of the rising cost of malpractice insurance." Moore v. Mobile Infirmary, 592 So. 2d 156, 166 (Ala.1991) (discussing Ala.Code 1975, § 6-5-544(b) (plurality)). However, § 6-5-545 discriminates, in all the ways that were discussed in Leahey, against those who have insurance. Only those who have had the foresight and the means wherewith to purchase insurance are subject to the vagaries of the statute. There is neither a rational basis, nor a legitimate governmental purpose, for this disparate treatment. Thus, it violates the Equal Protection Clause of the Fourteenth Amendment. Four years ago, this Court provided the citizens of Alabama with a thorough, well-reasoned discussion of the issued raised by § 6-5-545, detailing the conflict between the statute and the constitution. The opinion issued by the Court today resurrects a statute that is constitutionally deficient, with neither an explanation for holding the statute constitutional nor a suggested procedure for implementing the statute. One need not be a soothsayer to foresee that the statute will require judicial amendment for implementation. For these reasons, I respectfully dissent from that portion of the main opinion holding § 6-5-545 constitutional. [1] Marsh served the attorney general with a copy of her notice of appeal. See § 6-6-227, Ala.Code 1975; Terry v. City of Decatur, 601 So. 2d 949 (Ala.1992). [2] In Leahey, this Court criticized § 12-21-45 for, among other things, its "apparent attempt to change the law of evidence without expressing the effect on the law of damages." 681 So. 2d at 1346. This silence can be viewed as a virtue, not a vice, because it leaves to the courts their historical function of determining the limits of recoverable damages, through an evolving common law. This statutory silence gives both a plaintiff and a defendant latitude to explore various arguments about windfalls. A defendant may desire to argue that reimbursement of the plaintiff for medical expenses already paid by an insurer is a double recovery. On the other hand, a plaintiff may wish to argue that the defendant reaps a windfall unless additional damages are awarded, beyond the mere expense of the insurance or other collateralsource benefits, so as to compensate the plaintiff for having the discipline and foresight to devote money or earning power to paying the expense of acquiring the insurance or other collateral-source benefits rather than paying for some immediate gratification. Any review of matters concerning the validity or permissible effect of such arguments must await a proper case. A verdict form dealing specifically with collateral-source reimbursement would facilitate such a review. [3] In mentioning the equal-protection guarantee of the Alabama Constitution, I have not overlooked Ex parte Melof, 735 So. 2d 1172 (Ala.1999), which purports to hold that there is no such guarantee in the Alabama Constitution. I point out, however, that in special writings, no fewer than 5 of the 8 Justices participating in that decision expressed either their disagreement with, or no opinion as to, that proposition. See, e.g., 735 So. 2d at 1194 ("Although the main opinion correctly states that there is no single, express equal-protection provision in the Constitution of Alabama..., I do not believe it follows that there can be no claim of denial of equal protection cognizable under the Constitution of Alabama") (See, J., concurring specially; joined by Brown, J.); id. at 1195 (Cook, J., dissenting from the proposition that the Alabama Constitution fails to guarantee the equal protection of the laws; joined by Kennedy, J.); id. at 1205 (Johnstone, J., "adopt[ing]" the special writing of Cook, J., as to the equal-protection issue).

September 22, 2000

108aac12-9bd2-4bbf-882d-f45d8ef6c224

Ex Parte Weaver

781 So. 2d 944

1990217

Alabama

Alabama Supreme Court

781 So. 2d 944 (2000) Ex parte David Michael WEAVER. (Re David Michael Weaver v. Pentair, Inc., et al.) 1990217. Supreme Court of Alabama. October 13, 2000. *945 Patrick J. Ballard of Tipler Law Offices, Birmingham, for petitioner. Craig A. Alexander of Lange, Simpson, Robinson & Somerville, L.L.P., Birmingham, for respondent Delta International Machinery Corporation. *946 BROWN, Justice. As a result of an on-the-job injury, David Michael Weaver sued Delta International Machinery Corporation ("Delta Machinery"), the manufacturer of the saw he was using at the time of his injury; he also sued Pentair, Inc., Delta Machinery's parent company; Southern Risk Services, Inc., the workers' compensation carrier for Weaver's employer, Southern Energy Homes, Inc.; and a number of managers and/or supervisors at the Southern Energy Homes plant where Weaver worked. Weaver's action is pending in the Jefferson Circuit Court. He petitions for a writ of mandamus directing that court to vacate its order of February 2, 1999, wherein it limited Weaver's discovery concerning injuries resulting from accidents involving other sizes and models of Delta table saws and table-saw blade guards and further advised the parties that, at that time, it was inclined to exclude on retrial evidence of subsequent similar incidents. Weaver asks this Court to direct the circuit court to allow a broader range of discovery regarding injuries resulting from accidents involving other sizes and models of Delta table saws and table-saw blade guards. Finally, Weaver requests that this Court review the trial court's pretrial ruling that evidence of subsequent similar accidents will be inadmissible and that it direct the trial court to set that ruling aside. We deny the writ. Weaver worked at a Southern Energy Homes plant in Addison. On September 15, 1993, Weaver had an accident while he was cutting plasterboard, using a table saw and replacement blade guard that had been manufactured by Delta Machinery; he was injured and lost three fingers. Weaver sued Delta Machinery and the other defendants mentioned above on September 14, 1995. In the lawsuit, Weaver asserted products-liability claims and related claims against Delta Machinery, the manufacturer of the table saw. The table saw involved in Weaver's accident was a 12-inch tilting arbor saw manufactured in 1955. The saw was produced by Rockwell Manufacturing Company, a company eventually acquired by Delta Machinery, and it was sold with a metal blade guard. In later years, the manufacture of the metal blade guard was discontinued, and that guard was replaced by a plastic blade guard. At the time of his accident, the table saw Weaver was using had a plastic blade guard that he said "had tape all over it." Evidence indicated that a vacuum hose had been added to the table saw in such a way as to pull the blade guard away from its proper position. Weaver propounded discovery requests for information about other injuries that had occurred during the use of Delta table saws. Delta Machinery failed to respond to Weaver's discovery requests, and Weaver moved to compel that discovery. On April 21, 1998, the trial court granted Weaver's motion to compel, but limited the scope of Delta Machinery's required response to incidents involving the same 12-inch-model table saw that Weaver was operating when he was injured. Weaver maintains that, according to his mechanical-engineering expert, virtually all models of Delta Machinery's table saws and the replacement blade-guard attachments are substantially similar and function in the same way. He further maintains that the replacement guard at issue in this case is used for more than one model of table saw. According to Weaver, when his case first came to trial, Delta Machinery had not yet responded to his discovery request, but he says that on the second day of trial counsel for Delta Machinery produced a short list of other incidents. *947 The first trial of Weaver's case ended in a mistrial, on October 23, 1998, when, Weaver represents, the trial judge "became angry with Weaver's counsel for trying to lay the predicate for introducing evidence of other injuries occurring on Delta table saws." After the mistrial was declared, Weaver moved the trial court to "reconsider" its ruling limiting discovery concerning similar incidents, and on February 2, 1999, the trial court entered an order granting the motion to reconsider "to the extent that defendant [Delta Machinery] should respond to discovery requests as to the model of the saw with attachments as it was on the day of the accident, but may limit its discovery as to that saw as it existed that day." The order continued: "The court has advised counsel that it will limit evidence to accidents arising on or before the date of the accident in this case." On November 5, 1999, Weaver filed this petition for the writ of mandamus.[1] Rule 26, Ala.R.Civ.P., governs the discovery of information in civil actions. When a dispute arises over discovery matters, the resolution of the dispute is left to the sound discretion of the trial court. "Discovery matters are within the trial court's sound discretion, and its ruling on those matters will not be reversed absent a showing of abuse of discretion and substantial harm to the appellant." Wolff v. Colonial Bank, 612 So. 2d 1146, 1146 (Ala.1992) (citations omitted). See also Justice Maddox's dissent in Ex parte Hicks, 727 So. 2d 23, 33 (Ala.1998); the holding in the majority opinion in Hicks was overruled by Ex parte Henry, 770 So. 2d 76, 79 (Ala.2000). Petitioning for the writ of mandamus is the proper method for determining whether a trial judge has abused his discretion in limiting discovery. Ex parte Allstate Ins. Co., 401 So. 2d 749, 751 (Ala. 1981). The writ of mandamus is a drastic and extraordinary remedy, to be issued only when there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte Horton, 711 So. 2d 979, 983 (Ala.1998) (citing Ex parte United Serv. Stations, Inc., 628 So. 2d 501 (Ala. 1993)); Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala.1991) (citing Martin v. Loeb & Co., 349 So. 2d 9 (Ala.1977)). Moreover, this Court will not issue a writ of mandamus compelling a trial judge to alter a discovery order unless this Court "determines, based on all the facts that were before the trial court, that the trial court clearly abused its discretion." Ex parte Horton, 711 So. 2d at 983. Moreover, "`[t]he right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief,'" and "`[t]he writ will not issue where the right in question is doubtful.'" Ex parte Bozeman, 420 So. 2d 89, 91 (Ala. 1982) (quoting Ex parte Dorsey Trailers, Inc., 397 So. 2d 98, 102 (Ala.1981)). *948 Weaver claims that he suffered an on-the-job injury while using a 12-inch Delta table saw to cut plasterboard. On January 15, 1998, Weaver filed a broad discovery request, seeking information concerning previous claims and/or lawsuits: "The first step in determining whether the court has abused its discretion is to determine the particularized need for discovery, in light of the nature of the claim." Ex parte Rowland, 669 So. 2d 125, 127 (Ala.1995). Given that the saw Weaver was using at the time he was injured had been manufactured since 1955, Weaver's discovery request involved claims made over a period of more than 40 years. Moreover, as can be seen, Weaver's request involved numerous kinds of Delta equipment. The right to discovery is not unlimited, and the trial court has broad powers to control the use of the discovery process to prevent its abuse by any party. Ex parte Compass Bank, 686 So. 2d 1135, 1137 (Ala.1996). A discovery request of this scope is oppressive and overly burdensome. Thus, the trial court was entitled to limit Weaver's discovery request so that the information Delta Machinery was required to produce would be more manageable. We have held that a trial court can impose time and geographical limitations on otherwise unduly broad discovery requests in fraud cases, so as to prevent abuse of the discovery process. See Ex parte National Sec. Ins. Co., 773 So. 2d 461 (Ala.2000); Ex parte American Carpet Sales, Inc., 703 So. 2d 950 (Ala.1997). Likewise, in a class action based on the defendant's sale of annuities, we limited discovery to the particular kind of annuity purchased by the plaintiff, where the plaintiff had requested information involving all variable annuities sold by the defendant. *949 See Ex parte Compass Bank, 686 So. 2d at 1138. Here, the trial court was faced with an overwhelming discovery request involving information accumulated over a period spanning more than four decades. Thus, limiting discovery was not only reasonable, but mandatory. Had the court failed to limit discovery, the parties could have been bogged down in discovery for an incalculable period. The trial court elected to limit discovery to the particular model of saw Weaver was using when he was injured. Under the circumstances, the trial court did not abuse its discretion in limiting the scope of Weaver's requested discovery. Weaver also argues that we should issue the writ on the basis that the trial court abused its discretion by prospectively ruling that all evidence of subsequent incidents would be excluded on retrial. Although Weaver acknowledges in his brief that "[o]rdinarily, issues regarding evidentiary rulings are only ... subject to appeal upon entry of a final judgment," he argues that the facts of this case mandate that this Court should offer some guidance on the question of admissibility of other-similar-incidents evidence. "Mandamus is an extraordinary legal remedy to be granted only when there is a clear, specific legal right shown for the enforcement of which there is no other adequate remedy." Echols v. Housing Auth. of Auburn, 377 So. 2d 952, 953 (Ala.1979). "It is well established in Alabama that a writ of mandamus, which is a drastic and extraordinary remedy, will not issue when there is an adequate remedy by appeal, and that the writ cannot be used as a substitute for appellate review." Ex parte Fowler, 574 So. 2d 745, 747 (Ala. 1990). Moreover, the writ of mandamus will not issue to compel a trial court to exercise its discretion in a particular manner. Ex parte Ford Motor Credit Co., 607 So. 2d 169, 170 (Ala.1992). That is precisely what Weaver asks this Court to do: to review an evidentiary ruling that he contends was erroneous and, based on the review, "to provide guidance on the scope of judicial discretion" allowed in admitting or excluding similar-incident evidence. We decline to do so. The trial court's ruling does not prevent Weaver from offering evidence of a subsequent accident, and, if he offers that evidence and the trial court excludes it, then Weaver may appeal that ruling once a final judgment is entered. We conclude that the trial court did not abuse its discretion in limiting Weaver's discovery request concerning Delta table saws. We further conclude that Weaver does not have a clear legal right to a review of the correctness of a pretrial ruling on the admissibility of evidence. Accordingly, Weaver's petition is denied. WRIT DENIED. HOOPER, C.J., and HOUSTON, SEE, and ENGLAND, JJ., concur. [1] We note that since Weaver filed his petition, this Court has amended Rule 21, Ala.R.App. P., to provide that a petition for the writ of mandamus must "be filed within a reasonable time," and that "[t]he presumptively reasonable time for filing a petition seeking review of an order of a trial court shall be the same as the time for taking an appeal." Rule 21(a). Thus, under the rule as amended, a petition in a case such as this must be filed within 42 days of the order as to which the petitioner seeks review, unless the party can show good cause for delaying beyond the 42 days. See Ex parte Butts, 775 So. 2d 173, 176 (Ala.2000). This amendment became effective September 1, 2000.

October 13, 2000

098822b6-a813-4cba-94e3-352951f52b2e

RYAN'S FAM. STEAKHOUSE, INC. v. Brooks-Shades

781 So. 2d 215

1981991

Alabama

Alabama Supreme Court

781 So. 2d 215 (2000) RYAN'S FAMILY STEAKHOUSES, INC., and Edward Gonzales v. Betty BROOKS-SHADES and Robin Taylor. 1981991. Supreme Court of Alabama. September 29, 2000. *216 Timothy A. Palmer and David L. Warren, Jr., of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Birmingham, for appellants. John T. Bender, Mobile, for appellees. ENGLAND, Justice. On August 27, 1998, Betty Brooks-Shades and Robin Taylor, former employees of a Ryan's Family Steakhouse restaurant in Foley, filed a complaint against the operator of the restaurant, Ryan's Family Steakhouses, Inc.,[*] and the restaurant's former general manager, Edward Gonzales. A total of five plaintiffs filed the complaint, but only Brooks-Shades and Taylor are parties to this appeal. The complaint alleged assault and battery, invasion of privacy, and the tort of outrage. On October 14, 1998, Ryan's and Gonzales filed a "Motion to Dismiss or, in the Alternative, to Stay the Proceedings Pending Arbitration," arguing that the plaintiffs' claims were subject to arbitration agreements. As to Brooks-Shades and Taylor, they premised their motion to dismiss upon an allegation by Ryan's that it had a policy of hiring only applicants who signed an arbitration agreement, and, as to the other three plaintiffs, they premised the motion upon arbitration agreements signed by those plaintiffs. Ryan's and Gonzales contend that they were unable to locate Brooks-Shades and Taylor's personnel files, and, as a result, were unable to locate the arbitration agreements they say Brooks-Shades and Taylor had signed. On December 15, 1998, the trial court granted the defendants' motion to dismiss the claims of the other three plaintiffs (Thelma Hills, Bonnie Melton, and Diane *217 Doyle), based on the arbitration agreements they had signed. The court denied the motion to dismiss as to Brooks-Shades and Taylor. On January 26, 1999, the defendants filed a document entitled "Motion to Reconsider or, in the Alternative, For an Evidentiary Hearing." The trial judge set an evidentiary hearing for May 25, 1999. After hearing oral testimony from Gonzales, Brooks-Shades, and Taylor, the judge denied the motion. The defendants appealed. We treat the appeal as an appeal from an order denying a motion to compel arbitration.[1] Ryan's and Gonzales argue that the trial judge's implicit finding that Brooks-Shades and Taylor were hired without signing an arbitration agreement was clearly erroneous and contrary to the great weight of the evidence presented. We do not agree. Brooks-Shades and Taylor were hired in July 1996 to work at a new Ryan's restaurant in Foley. With regard to the application process, Gonzales testified that the Ryan's procedure was that once a person completed an application packet, Gonzales would set up an interview. The packet was given back to the applicant, who was told to bring it back at the time of the interview. If Gonzales decided to hire the applicant, he would schedule an orientation session. The packet was again given back to the applicant, and the applicant was told to bring it to the orientation. Gonzales testified that the application packet included an application, a gold-colored sheet of paper that told the applicants they were required to sign an arbitration agreement before they could be interviewed; an arbitration agreement; and a booklet titled "Employment Dispute Services, Inc., Rules and Procedures." Gonzales testified that these documents were attached to one another. Gonzales further testified that his store was audited periodically throughout the year. During the audit, he said, the auditor would review all of his files to determine how well he was doing his paperwork. He testified that if an employee's file did not contain an arbitration agreement, it would be brought to his attention during the audit. Gonzales further testified that he did not remember interviewing Brooks-Shades or Taylor and that he had no independent recollection of their signing an arbitration agreement. Brooks-Shades testified that the application she completed was a one-page form, with writing on the front and on the back; that she did not sign an arbitration agreement; and that she had never seen such a document before reviewing a copy of an arbitration agreement in connection with this action. She further testified that she was hired "on the spot." Brooks-Shades testified in her deposition that she remembered seeing a yellow sheet; however, at the hearing she testified that the yellow sheet might have been attached to the one-page application. Taylor testified that the form she completed was not a part of a multipage packet and that she did not sign an arbitration agreement when she completed her application. She testified that she had never seen the Ryan's arbitration agreement before reviewing a copy of it after she had commenced this action. Taylor also testified that the document she completed was a one-page form, with print on the front and on the back. The record also includes evidence indicating that the employee file of one of the other three plaintiffs, who was also hired in 1996, contained an arbitration agreement *218 that was signed in 1998, not in 1996 when she was hired. We have recently held: Williams v. Ivey, 777 So. 2d 94 (Ala.2000) (citing Jasper City Council v. Woods, 647 So. 2d 723 (Ala.1994)). When evidence has been presented ore tenus, a trial court's findings of fact based on that evidence are presumed correct. See Alabama Highway Dep't v. Stuckey's/DQ of Grand Bay, Inc., 613 So. 2d 333 (Ala.1993). Moreover, "[t]he trial court's judgment [based on ore tenus evidence in a nonjury case] will be affirmed if, under any reasonable aspect of the evidence, there is credible evidence to support the judgment." Ex parte Geneva City Bd. of Educ., 575 So. 2d 1114, 1116 (Ala.1990). The Federal Arbitration Act provides that written agreements containing arbitration provisions are enforceable if they are entered into voluntarily and if the agreement appears in a contract that concerns a transaction involving interstate commerce. See 9 U.S.C. §§ 1-15 (1970). We have held that any challenges to the existence of an agreement containing an arbitration provision are to be resolved by the trial court, not an arbitrator. See Shearson Lehman Bros., Inc. v. Crisp, 646 So. 2d 613 (Ala.1994). The trial judge held an ore tenus hearing and determined, based on the testimony of the witnesses and the other evidence before him, that the motion to compel arbitration should be denied. Given the evidence before us, we cannot say the trial court's order was clearly erroneous or against the great weight of the evidence, as Ryan's and Gonzales contend. To the contrary, the great weight of the evidence suggests that Brooks-Shades and Taylor never signed an arbitration agreement. They both testified that, before they reviewed a copy of the alleged arbitration agreement in connection with this action, they had never seen that agreement, the agreement Ryan's and Gonzales relied on in their motion to compel arbitration. Although Gonzales testified that he would not have interviewed Brooks-Shades and Taylor unless they signed the arbitration agreement, he also testified that he had no independent recollection of Brooks-Shades or Taylor's signing an arbitration agreement and that he did not remember if he even interviewed them. Furthermore, the evidence suggests that one of the other plaintiffs, Bonnie Melton, was hired in August 1996 but that the arbitration agreement introduced into evidence was signed by her in February 1998. The trial judge did not clearly err in refusing to compel arbitration. Ryan's and Gonzales argue that they established, pursuant to Rules 1004 and 406, Ala.R.Evid., that Brooks-Shades and Taylor signed arbitration agreements. Rule 1004 allows for the admissibility of "other evidence of the contents of a writing" when the proponent of that evidence has neither the original nor a duplicate of the writing. We first note that Rule 1004 assumes the existence of a writing. The comments to Rule 1004 state in part that "one may not offer oral testimony as to the contents of a writing without first having *219 to produce or account for the nonproduction of a copy that exists." (Emphasis added.) Advisory Committee's Notes, Rule 1004, Ala.R.Evid. Rule 406, Ala.R.Evid., states: The most sympathetic interpretation of the argument made by Ryan's and Gonzales would be that their evidence of habit, routine, or practice, offered pursuant to Rule 406, tended to prove the existence of an arbitration agreement and that their secondary evidence, offered pursuant to Rule 1004, tended to prove the contents of that arbitration agreement, which one is left to assume has somehow been lost. If, arguendo, we assumed the correctness of this argument, then we still could not conclude that the trial judge erred, because that evidence, while arguably admissible, is certainly not conclusive. The trial judge had the discretion to believe the more direct and countervailing evidence of the plaintiffs Brooks-Shades and Taylorthat no arbitration agreement ever existed between them and Ryan's. The party seeking to compel arbitration has the burden of proving the existence of a contract containing an enforceable arbitration clause. See TranSouth Fin. Corp. v. Bell, 739 So. 2d 1110 (Ala. 1999); Ex parte Caver, 742 So. 2d 168 (Ala. 1999); Southern United Fire Ins. Co. v. Knight, 736 So. 2d 582 (Ala.1999); Jim Burke Automotive, Inc. v. Beavers, 674 So. 2d 1260 (Ala.1995). We cannot hold that the trial judge erred in finding that Ryan's and Gonzales had not carried that burden or that he erred in resolving the conflicting evidence. We affirm the order denying the motion to compel arbitration. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, and JOHNSTONE, JJ., concur. BROWN, J., concurs in the result. [*] Note from the reporter of decisions: Some documents in the record spell this party's name "Ryan's Family Steakhouse, Inc." [1] An order denying a motion to compel arbitration is appealable. See, e.g., Patrick Home Ctr., Inc. v. Karr, 730 So. 2d 1171, 1172 (Ala. 1999).

September 29, 2000

dca6f335-b889-43bc-b8fb-91d8789e5cf6

Kingsley v. Sachitano

783 So. 2d 824

1990368

Alabama

Alabama Supreme Court

783 So. 2d 824 (2000) John R. KINGSLEY, M.D. v. Richard SACHITANO, M.D., et al. 1990368. Supreme Court of Alabama. November 17, 2000. *825 Charles A. Dauphin and Elizabeth W. McElroy of Baxley, Dillard, Dauphin & McKnight, Birmingham, for appellant. Robert L. Williams of Spain & Gillon, L.L.C., Birmingham; and Larkin Radney of Barnes & Radney, P.C., Alexander City, for appellee Richard Sachitano, M.D. Mark W. Lee and Dorothy A. Powell of Parsons, Lee & Juliano, P.C., Birmingham, for appellee Russell Medical Center. Thomas H. Keene, Patrick M. Shegon, and Ben C. Wilson of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellees John L. Watwood, M.D., and Frank Burns, M.D. ENGLAND, Justice. This appeal arises from a discovery order holding that the plaintiff is not entitled to discovery of certain hospital documents, based on the confidentiality provisions of § 22-21-8, Ala.Code 1975. We affirm. Dr. John R. Kingsley, the plaintiff, is a vascular surgeon who developed a vascular-surgery department at Russell Medical Center. On April 1, 1998, he sued Dr. Richard Sachitano, Dr. John L. Watwood, and Dr. Frank Burns, alleging 1) negligence or wantonness in the performance of a peer review of the plaintiff by the Tissue and Transfusion Committee of Russell Hospital, and 2) libel and slander. After filing his complaint, the plaintiff issued a subpoena to Russell Hospital, seeking numerous documents. Russell Hospital filed an objection to his request, based upon the confidentiality provisions of § 22-21-8, Ala.Code 1975. The trial judge held a hearing on the matter and entered the following order: The plaintiff then moved the trial court to provide the certification permitted by Rule 5, Ala.R.Civ.P., so he could request this Court's permission to appeal. The trial court entered an addendum expressing the opinion that this ruling constitutes an interlocutory order that involves one or more controlling questions of law as to which there are substantial grounds for difference of opinion, and that an immediate appeal from this order would materially advance the ultimate termination of the litigation and would avoid protracted and expensive litigation. This Court allowed a permissive appeal, pursuant to Rule 5. It is settled that decisions concerning evidentiary matters are left to the discretion of the trial judge, and, therefore, will not be disturbed absent a palpable abuse of that discretion. Peoples v. CSX Transportation, Inc., 681 So. 2d 1388, 1390 (Ala.1996). Thus, we must determine whether the trial court abused its discretion in denying the discovery of these peer-review documents based upon the privilege afforded under § 22-21-8, Ala. Code 1975. The statute reads, in pertinent part: In Ex parte Krothapalli, 762 So. 2d 836 (Ala.2000), this Court chronicled the reasoning behind confidentiality statutes such as § 22-21-8, which have been adopted by many states. The statutes provide confidentiality for peer-review processes as a method of "encouraging self-regulation by the medical profession through peer review and evaluation." Cruger v. Love, 599 So. 2d 111, 113-14 (Fla.1992) (quoted in Krothapalli, 762 So.2d at 838). The Florida Supreme Court, in Cruger, explained that the statutes were enacted "in an effort to control the escalating cost of health care by encouraging self-regulation by the medical profession through peer review and evaluation." 599 So. 2d at 113-14 (quoted in Krothapalli, 762 So.2d at 838). In support of his position, the plaintiff cites Ex parte St. Vincent's Hospital, 652 So. 2d 225 (Ala.1994), in which this Court declined to apply § 22-21-8 so as to prevent disclosure of the records of a hospital's infection-control committee. However, in that case there was no evidence that a function of the committee was accreditation or quality assurance. The trial judge in this case had before him the deposition of Frank Harris, president and chief executive officer of Russell Hospital. Harris testified that he had reviewed the documents requested by the plaintiff and had determined that they were the subject of quality assurance, credentialling, and accreditation and thus were subject to the privilege of § 22-21-8. We have carefully reviewed the record in this case, and we find no abuse of discretion on the part of the trial judge. His judgment is due to be affirmed, on the authority of Ex parte Qureshi, 768 So. 2d 374 (Ala.2000), and Ex parte Krothapalli, supra. AFFIRMED. HOOPER, C.J., and HOUSTON, LYONS, and BROWN, JJ., concur.

November 17, 2000

a11ff697-936f-4741-a42d-39847896a177

Ayers v. Duo-Fast Corp.

779 So. 2d 210

1981099

Alabama

Alabama Supreme Court

779 So. 2d 210 (2000) Bobby AYERS v. DUO-FAST CORPORATION and Cavalier Homes of Alabama, a division of Cavalier Manufacturing, Inc. 1981099. Supreme Court of Alabama. September 15, 2000. *211 Tom Dutton and Michael C. Bradley of Pittman, Hooks, Dutton & Hollis, P.C., Birmingham, for appellant. Jonathan B. Lowe of Lowe, Mobley & Lowe, Haleyville, for appellee Cavalier Homes of Alabama, a division of Cavalier Manufacturing, Inc. LYONS, Justice. On April 10, 1995, Bobby Ayers was injured while working in the line and scope of his employment with Cavalier Homes of Alabama, a division of Cavalier Manufacturing, Inc., in Winston County. Ayers was struck in his spine by a nail shot from a pneumatic nail gun being operated by a coworker. Apparently, Ayers was bent over with his back to the coworker. The coworker was operating a pneumatic nail gun manufactured by Duo-Fast Corporation. When Ayers stepped back, the nail gun touched his back; it accidentally fired and injured Ayers's thoracic spine. Ayers is now totally and permanently disabled because of the spinal-cord injury. In 1996, Ayers sued Duo-Fast and four individuals he described as "supervisory employees or executive officers" of Cavalier. He stated a products-liability claim against Duo-Fast and alleged, pursuant to § 25-5-11, Ala.Code 1975, that the individual coemployee defendants had engaged in willful conduct that resulted in or proximately caused his injury. In November 1997, the trial court entered summary judgments in favor of the individual defendants. While Ayers's third-party liability action against Duo-Fast was pending, he filed a workers' compensation action against Cavalier. In April 1998, pursuant to § 25-5-11, the trial court allowed Cavalier to intervene in the case against Duo-Fast to protect its subrogation interest in the medical expenses and compensation benefits it had paid to or on behalf of Ayers and which were a part of Ayers's damages claim against Duo-Fast. The parties engaged in a mediation settlement conference on May 29. At this conference, Duo-Fast and Cavalier agreed that Duo-Fast would reimburse Cavalier directly for the medical expenses and benefits Cavalier had paid to and on behalf of Ayers as of the date of the mediation conference. At the time of the mediation conference, Cavalier's subrogation interest was approximately $70,000. On June 26, Cavalier settled the workers' compensation case with Ayers for $35,000, and that settlement was approved by the trial court. Duo-Fast then agreed to reimburse Cavalier a total amount of $105,000. On August 7, Duo-Fast sent a check to Cavalier, and the president of Cavalier executed a release in favor of Duo-Fast. On August 14, Cavalier moved to dismiss its complaint in intervention and the trial court entered the following order: On October 9, Ayers filed a motion for an attorney fee pursuant to § 25-5-11(e). That section provides: In his motion, Ayers alleged that Cavalier had refused to acknowledge its liability to his attorneys and had refused to pay them its proportionate share of the fees and expenses incurred in bringing the third-party liability action against Duo-Fast. On October 23, Ayers and Duo-Fast reached an agreement, and on November 10, they entered into a written settlement agreement whereby, in consideration for the sum of $750,000 paid to Ayers, he dismissed his case against Duo-Fast, with prejudice. On March 1, 1999, the trial court entered the following order denying Ayers's motion for an attorney fee: On March 3, the trial court entered an order dismissing the action because the claims had been settled by the parties. Ayers then appealed from the order denying his request for an attorney fee. We first address an issue that is not discussed by anyone connected with this appeal: Who are the parties to this appeal? Ayers's notice of appeal names Duo-Fast as the only appellee. Nevertheless, Cavalier has filed an appellee's brief in which it designates itself as "Intervenor/Appellee." Duo-Fast has not filed a brief, but has merely filed a letter addressed to the clerk of this Court, in which it stated its opinion that the dispute that is the subject of the appeal is between Ayers and Cavalier. Rule 3(c), Ala. R.App. P., states: Rule 3(c) does not address the appellant's designation of an appellee or appellees in the notice of appeal. Rule 3(d), however, requires the clerk of the trial court to serve a copy of the notice of appeal to the "counsel of record for each party, or, if a party is not represented by counsel, to the party at the party's last known address." Ayers's notice of appeal included what he designated as an "attachment to notice of appeal" containing a "Listing of Attorneys for CERTIFICATE OF FILING." This attachment contained the names and address of the attorneys "[r]epresenting Appellee Duo-Fast Corp.," and the name and address of Jonathan B. Lowe of Lowe, Mobley & Lowe, "[r]epresenting Intervenor Cavalier Homes of Alabama, Inc." In the portion of the docketing statement that requests an appellant to list the "PARTY/PARTIES APPEALED AGAINST (Appellee)," Ayers typed "SEE ATTACHMENT." That form included what Ayers designated as an "attachment to docketing statement," which stated: *214 The case action summary sheet reflects that the clerk of the trial court served a copy of the notice of appeal on, among others, Jonathan B. Lowe, counsel for Cavalier. Furthermore, as noted above, this Court's records reflect that Cavalier considers itself to be an appellee in this case. In light of all of the foregoing, we conclude that Cavalier is an appellee in this case and that Ayers's failure to name Cavalier as an appellee in his notice of appeal is not a significant defect that could have rendered the appeal a nullity. See Ex parte Singleton, 475 So. 2d 186 (Ala.1985). We next address Cavalier's contention that this appeal is due to be dismissed pursuant to Rule 4(a)(1), Ala. R.App. P., because, it argues, Ayers did not file a notice of appeal within 42 days of the date the trial court dismissed Cavalier's complaint intervening in this cause. Cavalier argues that the order entered by the trial court on August 14, 1998, was a final judgment, in accordance with Rule 54, Ala. R. Civ. P., and that in that order the court dismissed Cavalier's claims for subrogation. This order, Cavalier argues, completely adjudicated all claims, rights, and/or potential liabilities Cavalier may have had; therefore, Cavalier says, Ayers should have filed a notice of appeal on or before September 25, 1998. Ayers filed his notice of appeal on April 9, 1999. Rule 54(b), Ala. R. Civ. P., states: (Emphasis added.) The trial court's August 14 order did not contain the language required by Rule 54(b) to permit an otherwise interlocutory order to be made a final judgment. Therefore, the August 14 order did not terminate the action as to any party or claim, it was subject to revision at any time before the entry of the final judgment on March 3, 1999, and it would not have supported an appeal until after March 3. See, also, McGlothlin v. First Alabama Bank, 599 So. 2d 1137 (Ala.1992). Ayers's notice of appeal was timely filed. We now turn to Ayers's contention that § 25-5-11(e) requires that Cavalier pay a pro rata share of the attorney fee incurred in bringing and settling the third-party action against Duo-Fast. Ayers contends that by entering into a settlement directly with Duo-Fast and receiving reimbursement for its subrogation interest directly from Duo-Fast, Cavalier has attempted to circumvent the procedure envisioned in § 25-5-11(e). Cavalier argues that because it effected its own settlement with Duo-Fast, it should not be required to pay any portion of Ayers's attorney fee in the third-party action. The trial court agreed with Cavalier, holding that Ayers would have been entitled to a pro rata share of his attorney fee from Cavalier only in the case of a settlement payment "by a third party directly to the employee." The payment made to Cavalier by Duo-Fast was not part of the settlement between Duo-Fast and Ayers, the trial court said, "nor were these monies paid to [Ayers] by Duo-Fast." The trial court also stated that "because the agreement between Cavalier and Duo-Fast pre-dated the settlement between *215 Duo-Fast and [Ayers,] the sums paid to Cavalier were not paid pursuant to Section 25-5-11(e)." Section 25-5-11 is an exception to the exclusivity provisions of Alabama's Workers' Compensation Act. It provides that an employee who is injured in the line and scope of his employment may maintain an action against a third party who may be jointly liable with the employer for his injury. Padgett v. Neptune Water Meter Co., 585 So. 2d 900 (Ala.1991). That third party may be a coemployee [1] or may be an unrelated party. In this case, Ayers was allowed to maintain an action against an unrelated party, Duo-Fast, the manufacturer of the nail gun that injured him at work. If the injured employee recovers damages against the third party, then § 25-5-11(a) requires that the amount of the damages collected "be credited upon the liability of the employer for compensation." If the employee does not institute such a third-party action, then § 25-5-11(d) allows the employer an additional six months in which to bring a civil action against the other party for damages because of the injury to the employee. Section 25-5-11(e) provides a mechanism by which an attorney can be compensated for his efforts in a third-party action that reduces an employer's liability to pay future workers' compensation benefits. Strickland v. Riddle Bradley, Inc., 698 So. 2d 784 (Ala.Civ.App.1997). The Court of Civil Appeals has addressed this issue in a case in which an employer and its workers' compensation insurance carrier sought to avoid liability for attorney fees under § 25-5-11(e) by intervening in the thirdparty action. In rejecting their argument, the court stated: *216 Lewis Trucking Co. v. Skinner, 671 So. 2d 696, 698 (Ala.Civ.App.), cert. denied, 671 So. 2d 699 (Ala.1995). We agree with the Court of Civil Appeals' reasoning in Lewis Trucking, and we apply that reasoning to this case, where Cavalier attempts to avoid the effect of § 25-5-11(e) not only by intervening in Ayers's third-party action, but also by entering into a settlement agreement with Duo-Fast separate and apart from the settlement agreement between Duo-Fast and Ayers.[2] We do not agree that a literal reading of § 25-5-11(e) excuses Cavalier from paying a pro rata share of Ayers's attorney fees just because Cavalier received proceeds that were paid directly to it by a third-party tortfeasor. We base our conclusion not only on the reasoning in Lewis Trucking, but also on the facts set forth in the pleadings and settlement documents in this case. In his complaint, Ayers alleged that he had been permanently injured; that he "was caused and will be caused in the future" to pay medical expenses "in... an effort to heal and cure his injuries"; and that he "was caused to lose time from his employment, thereby sustaining a loss of earnings." As previously noted, Ayers sought damages from Duo-Fast that included the medical expenses and benefit payments made to him and on his behalf and as to which Cavalier intervened to protect a subrogation interest. The release Cavalier executed to Duo-Fast itself refers to the discharge of liens in intervention: "Cavalier understands and agrees that the payment to it as recited above is in settlement and compromise of claims and/or liens it has made as an intervenor, which said claims and/or liens Duo-Fast denies any liability for paying; [and that Duo-Fast] intends merely by this disposition of the workers' compensation lien to further the settlement process." (Emphasis added.) The settlement process referred to in the release has to relate to the settlement of the entire controversy; hence, the settlement between Cavalier and Duo-Fast, by its own terms, is tied to the claims of Ayers against Duo-Fast. Indeed, the settlement between Cavalier and Duo-Fast disposes of a part of Ayers's claims against Duo-Fast, to which Cavalier was subrogated. The release Ayers executed to Duo-Fast obligates Ayers to satisfy any liens: "That it is ... mutually understood and agreed that this Release includes any and all liens and encumbrances, and if any such liens or encumbrances exist, medical or otherwise, the undersigned represents that he will satisfy said liens or encumbrances out of the proceeds of this settlement." (Emphasis added.) The liens referred to would include any rights of Cavalier in the proceeds. The Cavalier/Duo-Fast settlement agreement cannot logically be fragmented from "the settlement process." Cavalier received the benefit contemplated by § 25-5-11 because, as a result of Ayers's third-party action, Cavalier was fully reimbursed by Duo-Fast for the $105,000 Cavalier had disbursed in medical expenses and compensation-benefit payments made to and on behalf of Ayers and which constituted part of Ayers's claim against Duo-Fast. Because Cavalier, standing in Ayers's shoes, settled and then received that benefit, the statute also contemplates that it must share, on a pro rata basis, in the obligation to compensate Ayers's counsel, who brought the action that ultimately allowed Cavalier to fully recoup its subrogation interest.[3] *217 Considering all of the foregoing, we conclude that these settlement agreements, arising in the same lawsuit and internally linked one to the other, are sufficiently intertwined to constitute "a settlement made under this section [§ 25-5-11(e)] with a third party [Duo-Fast] by the employee [Ayers]." To exclude the portion reflecting settlement of Cavalier's subrogated interest in Ayers's claim against Duo-Fast on the ground that Ayers was not a party to the settlement instrument would exalt form over substance. Therefore, Cavalier "shall be liable for that part of the attorney's fees incurred in the settlement with [Duo-Fast] ... in the same proportion that the amount of the reduction in [Cavalier's] liability to pay compensation bears to the total recovery [of $855,000] had from the third party." § 25-5-11(e). The trial court erred in denying Ayers's request to have Cavalier pay its share of the attorney fee due in this case. The order denying that request is hereby reversed, and the cause is remanded only as to the claim of Ayers against Cavalier. The trial court shall calculate Cavalier's pro rata share of the attorney fee due Ayers's counsel pursuant to the formula adopted by the Court of Civil Appeals in Fitch v. Insurance Co. of North America, 408 So. 2d 1017 (Ala.Civ.App.1981), and approved by this Court in Maryland Casualty Co. v. Tiffin, 537 So. 2d 469 (Ala.1988). REVERSED AND REMANDED WITH DIRECTIONS. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] In order for a worker to be able to maintain a third-party action against a coemployee, of course, the coemployee's actions giving rise to the claim must have been willful. See § 25-5-11. [2] Like the employer in Lewis Trucking, Cavalier argues that it should not be required to pay a portion of the worker's attorney fee because, it says, its settlement agreement with the third party was the result of its own efforts and the work of its own attorneys. As the Court of Civil Appeals did in Lewis Trucking, we reject that argument. [3] Cavalier also argues that the trial court's denial of Ayers's request for an attorney fee prevented Ayers from enjoying the windfall of a double recovery. We do not see how requiring an employer to pay a pro rata share of the employee's attorney fee in a case where the employer has recouped all of the medical expenses and compensation benefits paid to the employee could constitute a double recovery for the employee. Section 25-5-11, by its very terms, provides for reimbursement of all expenditures made by the employer, in order to prevent the employee from receiving the windfall of both workers' compensation benefits and all of the damages obtained in a third-party action. The employer cannot be heard to complain of a windfall when the employee seeks attorney fees in the action that gave rise to the reimbursement of the employer for its subrogated interest in the employee's claim against a third party.

September 15, 2000

f0dedeb8-96f7-473a-9e4b-6190a7ef9a2b

Ex Parte Drummond

785 So. 2d 358

1990033

Alabama

Alabama Supreme Court

785 So. 2d 358 (2000) Ex parte Mark S. DRUMMOND. (Re Rhonda B. Drummond v. Mark S. Drummond). 1990033. Supreme Court of Alabama. September 15, 2000. *359 Stephen R. Arnold and William M. Bowen, Jr., of White, Dunn & Booker, Birmingham, for petitioner. Julie Katz Callaway of David Cromwell Johnson & Associates, Birmingham, for respondent. PER CURIAM. Mark S. Drummond and Rhonda B. Drummond were divorced by the Jefferson Circuit Court. Rhonda appealed from the divorce judgment. The Court of Civil Appeals concluded that the trial court, in dividing the parties' marital property, had not considered as marital property an inheritance Mark had received from his grandmother's estate. It held that Rhonda should have been allowed to share in that property, on the basis that the evidence showed the inheritance had been used for the common benefit of the parties to the marriage. Thus, the Court of Civil *360 Appeals reversed the property-division portion of the trial court's judgment, and because property-division and alimony awards are usually so closely related, it reversed the alimony award as well. Drummond v. Drummond, 785 So. 2d 353 (Ala.Civ.App.1999). We granted Mark's petition for certiorari review, to consider the Court of Civil Appeals' ruling regarding the trial court's order dividing the parties' property and awarding alimony. We reverse the judgment of the Court of Civil Appeals insofar as that judgment reversed those two portions of the trial court's judgment, and remand. The facts of the case were adequately summarized in the Court of Civil Appeals' opinion: 785 So. 2d at 354-55. On appeal, Rhonda claimed the division of property was inequitable and also challenged that portion of the judgment awarding custody of the daughters to Mark and that portion awarding an attorney fee. The Court of Civil Appeals affirmed the award of custody and the attorney-fee award, but reversed those portions of the judgment dividing the marital property and awarding alimony. The standard appellate courts apply in reviewing a trial court's judgment awarding alimony and dividing property is well established: *361 Morgan v. Morgan, 686 So. 2d 308, 310 (Ala.Civ.App.1996). More recently, the Court of Civil Appeals has stated: Bushnell v. Bushnell, 713 So. 2d 962, 964-65 (Ala.Civ.App.1997). "`[P]roperty divisions are not required to be equal, but must be equitable in light of the evidence, and the determination as to what is equitable rests within the sound discretion of the trial court.'" Morgan v. Morgan, 686 So. 2d 308, 310 (Ala. Civ.App.1996) (quoting Duckett v. Duckett, 669 So. 2d 195, 197 (Ala.Civ.App.1995)). Rhonda contends that Mark was allowed to keep numerous bank and investment accounts that had been set up in his name alone. The total value of the accounts in question was approximately $1.2 million.[1] She argues that the trial court did not consider these accounts when it entered its final judgment of divorce and that in failing to consider the accounts the court violated § 30-2-51, Ala.Code 1975. That section reads, in pertinent part: Rhonda claims that the inheritance Mark received from his grandmother's estate was put into various bank accounts, which she says were used for the common benefit of the marriage, specifically for the purpose of paying taxes and providing gifts for the children. The Court of Civil Appeals held: 785 So. 2d at 357. Mark argues that the inheritance should have been kept separate for two reasons. First, he says the inheritance had not been used for the common benefit of the marriage and that there was no proof that it had been. Second, he argues that awarding any part of his inheritance to Rhonda would violate § 30-2-52, Ala. Code 1975, which reads: Relying on § 30-2-52, Mark alleged that Rhonda had been unfaithful during the marriage and therefore was not entitled to share in his inheritance. The Court of Civil Appeals correctly noted that the trial court's judgment makes no finding of adultery or other misconduct by Rhonda. Although Mark contends that the record contains substantial evidence indicating Rhonda had been unfaithful, § 30-2-52 begins with the specific premise that "the divorce is in favor of either spouse for the misconduct of the other spouse." Because the trial court made no finding of misconduct, § 30-2-52 is not applicable. The Court of Civil Appeals concluded, from "the record and the numerous exhibits," that assets the court did not divide, or income from those assets, "[was] indeed used for the common benefit of the parties during the marriage," or were "funded by moneys that were part of the marital estate." 785 So. 2d at 357. Although we acknowledge that there is support in the record for this conclusion, we do not agree with the Court of Civil Appeals' conclusion that the trial court should have made a property distribution from the inheritance and gift accounts. Section 30-2-51 states that if a party does not use his or her inheritance or gifts for the common benefit of the parties to the marriage, then the trial judge may not consider the inheritance or gifts when making a property division. Nothing in the statute states that if one party's inheritance or gifts are used for the parties' common benefit then the trial judge must consider the inheritance or gifts when making the property division. In fact, the statute leaves such a determination to the discretion of the trial judge. "[T]he judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse's family." Section 30-2-51(a), Ala.Code 1975. Rhonda was given the family home, valued at $800,000 to $900,000; a Lexus automobile; attorney fees of more than $40,000; alimony in gross of $50,000; and periodic alimony of $4,000 a month. We cannot say the trial judge abused his discretion. Further, nothing indicates the trial judge did not consider Mark's inheritance *363 and gifts when he made his ruling. The trial judge did not specifically state in his order that he had considered Mark's inheritance when making the property division. The order simply delineated what property would go to which spouse. Although the trial judge did not indicate the grounds upon which he based the Drummonds' divorce, the record contains evidence suggesting that Rhonda's conduct was a major factor contributing to the breakdown of the marriage. Myrick v. Myrick, 714 So. 2d 311, 315 (Ala. Civ.App.1998). Finally, we note that the trial judge, who heard oral testimony from the parties and from other witnesses, was best able to determine the credibility to be afforded that testimony. Appellate courts can only review the record. Consequently, the trial court must be left with some discretion to determine which witnesses it deems more credible than others. Once the trial court makes that determination, it is not for the reviewing court to substitute its judgment for that of the trial court. After reviewing the record, we conclude that the trial court did not plainly or palpably abuse its discretion in dividing the parties' property as it did. Therefore, we reverse the judgment of the Court of Civil Appeals insofar as that judgment reversed the property-division and alimony portions of the trial court's judgment, and we remand the case with instructions for the Court of Civil Appeals to reinstate those portions of that trial judgment. REVERSED AND REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and MADDOX, COOK, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. SEE and LYONS, JJ., concur in the result. HOUSTON, J., recuses himself. [1] It is impossible to get an exact figure on the total amounts in question. The records for these accounts were not well kept, and the record does little to help us estimate the total.

September 15, 2000

c7a00f59-ed88-476d-89cf-9e5d70eba5da

Van Knight v. Smoker

778 So. 2d 801

1981238

Alabama

Alabama Supreme Court

778 So. 2d 801 (2000) Mary VAN KNIGHT and Gaye F. Garnett as conservators of the estate of Helen H. Fillingim, non compos mentis v. Gregory A. SMOKER et al. 1981238. Supreme Court of Alabama. August 18, 2000. *802 C. Knox McLaney III of McLaney & Associates, P.C., Montgomery, for appellants. Christopher J. Hughes and Judy B. Van Heest of Beers, Anderson, Jackson, Nelson, Hughes & Patty, P.C., Montgomery, for appellee Gregory A. Smoker. Harry Cole and John M. Milling, Jr., of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellee Piggly Wiggly Alabama Distributing Co., Inc. E. Ham Wilson, Jr., and Emily C. Marks of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellee Virginia Smith and Grady Smith. Crawford S. McGivaren, Jr., and John M. Graham of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellee Piggly Wiggly Company (formerly known as Piggly Wiggly Corporation). JOHNSTONE, Justice. The plaintiffs, Mary Van Knight and Gaye F. Garnett, as conservators of the estate of Helen H. Fillingim, non compos mentis, appeal from the trial judge's summary judgment in favor of the defendants, Piggly Wiggly Corporation; Piggly Wiggly Alabama Distributing Company, Inc.; Smoker, Inc.; Gregory A. Smoker; H. Grady Smith; and Virginia Smith. The only issue raised by the plaintiffs is whether the trial judge erred in conducting a hearing on November 18, 1998, on the defendants' motions for summary judgment in the absence of the plaintiffs and their attorneys, C. Knox McLaney III and John Crook Mclnnish. Specifically, the plaintiffs claim that the trial judge's last scheduling order, issued by the judge on November 10, 1998, which set February 18, 1999, as the date for the hearing on the motions for summary judgment, superseded any previous order by the judge setting the hearing on the motions for summary judgment for November 18, 1998. The record shows the following undisputed facts. The trial judge prepared and issued the first scheduling order in this case on July 10, 1998. That order set October 1, 1998, as the date the judge would hear oral arguments on any motion *803 for summary judgment. During September 1998, all of the defendants filed motions for summary judgment, along with briefs, depositions, and documents in support of their motions. At a scheduling conference held on September 23, 1998,[1] attended by one of the plaintiffs' attorneys, Crook Mclnnish, the trial judge reset the hearing date on the defendants' motions for summary judgment from October 1, 1998, to November 18, 1998. On November 6, 1998, the plaintiffs' attorneys received a docket notice of the November 18, 1998, hearing. Then, on November 10, 1998, the trial judge issued a new scheduling order setting the hearing on the motions for summary judgment for February 18, 1999. This last scheduling order, in its entirety, reads as follows: (Emphasis added.) (R. 1409-10.) The record does not contain any subsequent document changing the date of the hearing on the motions for summary judgment set by this November 10 order. Although this November 10, 1998, scheduling order reset the date for the hearing on the defendants' motions for summary judgment to February 18, 1999, the trial judge conducted a hearing on the motions on November 18, 1998. Neither the plaintiffs *804 nor their attorneys attended this hearing. In fact, the record contains a letter sent on the day before the hearing from the plaintiffs' attorney Knox McLaney to the numerous defense attorneys, as well as to the trial judge and to the circuit clerk, which shows the plaintiffs' counsel's reliance on the judge's new scheduling order. That letter states: (R. 1382.) On that same day, the plaintiffs filed a motion and a brief in opposition to the defendants' motions for summary judgment. On December 22, 1998, the trial judge issued an order granting summary judgment in favor of the defendants. In the same order, the trial judge granted the defendants' motions to strike the plaintiffs' materials in opposition to the summary judgments on the ground that they were not "served at least two (2) days prior to the hearing," as required by Rule 56(c)(2), Ala.R.Civ.P. In his order, the judge acknowledged that "[n]either of the plaintiffs' attorneys were present in court on the hearing date, November 18, 1998, although Attorney Knox McLaney did write a letter (a copy of which was presented to the undersigned judge in open court on November 18, 1998) advising that he could not attend court that day." The judge continued: (R. 1395-96.) The November 6, 1998, docket notice is the only written evidence of the setting of the November 18, 1998, hearing. The November 10, 1998, order rescheduling the hearing to February 18, 1999, superseded the November 6 docket notice. The plaintiffs filed a motion to set aside the summary judgments in favor of the defendants, but the trial judge summarily denied it. The defendants maintain that the abovequoted "NOTE" from the trial judge's order evidences that the plaintiffs were aware that "the November scheduling order moving the trial from the November term of court to the Spring term did not effect the November 18, 1998, hearing date for Defendants' Motions for Summary Judgment." (Appellees' brief, p. 6-7.) The record does not support the defendants' contention or the trial judge's recitation. Rather, the record before us establishes that, on July 10, 1998, the trial judge initially set the hearing on the defendants' motions for summary judgment on October 1, 1998; that, on September 23, 1998, the trial judge changed the date for the hearing on the motions to November 18, 1998; and that, on November 10, 1998, the trial judge again changed the date for the hearing on the motions to February 18, 1999. The record does not contain any court documents or orders showing that the trial judge's scheduling order of November 10, 1998, which set the hearing on the defendants' motions for summary judgment for February 18, 1999, did not supersede the judge's order of September 23, 1998, which had set the hearing on the motions for November 18, 1998. In support of their argument that the trial court erred in conducting a hearing without the presence of the plaintiffs *805 and their counsel, the plaintiffs cite Rule 78 "Motion Day," Ala.R.Civ .P., which provides, in pertinent part: "To expedite further its business, unless there is a request for oral hearing, the court may enter an order denying a motion to dismiss without oral hearing." (Emphasis added.) The Committee Comments to this rule state: "It is to be noted that the last sentence of the rule prohibits the granting of a Motion Seeking Final Judgment such as a Motion for Summary Judgment without giving the parties an opportunity to be heard orally." (Emphasis added.) Rule 56(c), Ala.R.Civ.P., itself entitles the parties to a hearing on a motion for summary judgment.[2]See Hicks v. Alabama Pest Servs., Inc., 548 So. 2d 148, 150 (Ala.1989); and Lightsey v. Bessemer Clinic, P.A., 495 So. 2d 35, 38 (Ala.1986). Although, in certain limited circumstances, a trial court may rule on a motion for summary judgment without conducing a hearing, see Pate v. Rollison Logging Equip., Inc., 628 So. 2d 337, 341 (Ala.1993), once the trial court has set a date for a hearing on the motion, the court must allow the nonmoving party an opportunity to be heard. Hill v. Chambless, 757 So. 2d 409 (Ala.2000); and Tharp v. Union State Bank, 364 So. 2d 335 (Ala.Civ.App.1978). Recently, in Hill v. Chambless, this court reversed the trial court's summary judgment in favor of the defendant-police officers because the trial judge had scheduled a hearing on the motion for December 30, 1998, but on December 22, 1998, the judge granted the motion for summary judgment without conducting a hearing. We stated that "[b]ecause 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." Hill, 757 So. 2d at 411. We concluded further 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." Id. Hill is doubly applicable to the case now before us in that, in this case, the trial judge not only conducted the summary-judgment hearing on the superseded date of November 18, 1998, but also, as his ground for striking the materials the plaintiffs had filed on November 17, 1998, in opposition to the motions for summary judgment, invoked the requirement of Rule 56(c)(2) that materials in opposition "be served at least (2) days prior the hearing." One purpose of the procedural rights to notice and hearing under Rule 56(c) is to allow the nonmoving party the opportunity to discover and to present evidence opposing the motion for summary judgment. Tharp, 364 So. 2d at 338. Although the nonmoving party may waive the requirements of notice and hearing, the "waiver requires knowledge, actual or implied, of the right being waived." Tharp, 364 So. 2d at 338 (citing Givens v. General Motors Acceptance Corp., 56 Ala. App. 561, 324 So. 2d 277 (1975)). In Tharp, the defendant attended a hearing conducted for the purpose of considering a motion to dismiss a counterclaim. However, at that hearing, the trial court also granted summary judgment in favor of the plaintiffs. The defendant objected to the entry of summary judgment on the ground that it was not aware that the summary-judgment motion would be discussed and decided at the hearing. The Tharp court held that "[t]his objection to the entry of *806 summary judgment and the state of the record showing that ten days had not expired since even the certified date of service [of the motion for summary judgment] negates any claim of waiver." 364 So. 2d at 338. The Tharp court noted that the plaintiff's argument that the defendant was not prejudiced by the entry of summary judgment against it was invalid because Rule 56 "is not prefaced upon whether or not the opposing party may successfully defend against summary judgment, [but] it does require that the opportunity to defend be given." Tharp, 364 So. 2d at 338. In the case before us, the last notice of the hearing issued by the trial court reset the hearing date to February 18, 1999. The attorneys were entitled to rely on this notice. See e.g. Sparks v. Alabama Power Co., 679 So. 2d 678 (Ala.1996); and Williams v. Tyler, 14 Ala.App. 591, 71 So. 51, cert. denied, Ex parte Tyler, 198 Ala. 696, 73 So. 1002 (1916). The trial judge knew that the plaintiffs' attorneys had received this notice and knew specifically that one of the plaintiffs' attorneys was relying on the notice. Thus, the trial judge violated the plaintiffs' right to be heard in conducting a hearing on the defendants' motions for summary judgment in the absence of the plaintiffs and their attorneys on the superseded hearing date. Consequently, we reverse the summary judgment in favor of the defendants and we remand this cause for further proceedings. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, COOK, and LYONS, JJ., concur. [1] This date does not actually appear of record except as a recitation in the trial judge's December 22, 1998, summary-judgment order. [2] Rule 56(c)(2) provides: "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."

August 18, 2000

da5124db-ba30-4a14-aef2-df72b38c34fe

Ex Parte Dixon

804 So. 2d 1075

1980099

Alabama

Alabama Supreme Court

804 So. 2d 1075 (2000) Ex parte Daniel DIXON. (Re Daniel Dixon v. State). 1980099. Supreme Court of Alabama. September 1, 2000. *1076 Stephen G. Smith of Smith & Seagle, Dothan, for petitioner. Bill Pryor, atty. gen., and James B. Prude, asst. atty. gen., for respondent. COOK, Justice. Daniel Dixon pleaded guilty to a charge of robbery in the first degree, a violation of § 13A-8-41, and to a charge of burglary in the first degree, a violation of § 13A-7-5. The circuit court entered judgments of conviction and, applying the Habitual Felony Offender Act, enhanced Dixon's sentences and sentenced him to two consecutive terms of life imprisonment. Dixon appealed to the Court of Criminal Appeals, making three arguments: (1) that the trial court incorrectly sentenced him pursuant to the Habitual Felony Offender Act; (2) that the trial court erred in accepting his guilty pleas because, he said, he did not enter those pleas knowingly and voluntarily; and (3) that the trial court incorrectly imposed upon him separate sentences for burglary and robbery because, he claimed, both charges arose from the same course of conduct. The Court of Criminal Appeals, on August 14, 1998, affirmed Dixon's convictions, by an unpublished memorandum. Dixon v. State (No. CR-96-2360), 741 So. 2d 481 (Ala.Crim.App.1998) (table). We granted Dixon's petition for certiorari review. Dixon's petition raises only two issues: (1) whether the trial court incorrectly sentenced him under the Habitual Felony Offender Act, and (2) whether the trial court incorrectly imposed separate sentences for burglary and robbery; he again argues that those charges arose out of the same course of conduct. Dixon first argues that the State failed to prove the prior felonies it sought to use to invoke the Habitual Felony Offender Act (HFOA); therefore, he argues, the enhancement of his sentences under the HFOA was improper. The State argues that Dixon did not properly preserve this issue for appeal because he did not object to the sentence enhancement at trial. However, after his sentencing, Dixon did timely move the trial court for a new trial, raising the issue of improper sentence enhancement under the HFOA. The State argues that Dixon admitted the prior felony convictions and thereby relieved the State of its burden of proving the prior felony convictions through certified copies. In regard to sentence enhancement under the HFOA, the general rule is that "the burden of proof [is] on the state to show that the defendant has been convicted of a previous felony or felonies." Rule 26.6(b)(3)(iii), Ala. R.Crim. *1077 P.; see Shumate v. State, 676 So. 2d 1345, 1347 (Ala.Crim.App.1995). However, by admitting prior felony convictions, the defendant relieves the State of its burden of proof. See Burrell v. State, 429 So. 2d 636, 637 (Ala.Crim.App.1982). At the sentencing hearing, Dixon did admit that he had had two prior felony convictions. However, it is unclear whether he fully understood the nature of the felony requirement under the HFOA. At the sentencing hearing, the following colloquy took place. The trial court never addressed Dixon's question concerning youthful-offender convictions. At the postsentencing hearing, in which Dixon challenged the use of his prior convictions under the HFOA, the State offered proof of only two prior felonies. One prior felony was a robbery, for which Dixon was sentenced as a youthful offender, and the other prior felony was a burglary, as to which Dixon had entered a plea of nolo contendere. Therefore, the State failed to prove Dixon had any prior convictions that could be used under the HFOA. The record indicates that no one explained to Dixon that youthful-offender convictions are not considered prior convictions for purposes of sentence enhancement under the HFOA. See Ex parte Thomas, 435 So. 2d 1324, 1326 (Ala.1982) ("We hold that a prior youthful offender adjudication is properly considered in determining the sentence to be imposed within the statutory range for a later crime for which the defendant has been *1078 convicted. That same youthful offender determination, however, may not be considered a prior felony conviction, as contemplated by the Habitual Offender Act...."). Nor did anyone explain that a conviction based on a nolo contendere plea cannot be used for purposes of enhancing a sentence under the HFOA. See Ex parte Jenkins, 586 So. 2d 176, 177 (Ala.1991) ("Alabama law prohibits the introduction of evidence of previous convictions based on pleas of nolo contendere for enhancement purposes"); and see Reed v. State, 691 So. 2d 463, 465 (Ala.Crim.App.1996), and McHarris v. State, 678 So. 2d 259, 260 (Ala.Crim.App.1996) (opinion on return to remand). Without such explanations, the use of Dixon's admission of prior felonies to invoke the HFOA is invalid. The State also argues that if this Court concludes that the State did not properly prove Dixon's two prior felony convictions, then, even so, Dixon is not entitled to relief, because each sentence prescribed falls within the range of punishment for a defendant convicted of one prior felony. However, as stated above, the State offered proof of only two prior felony convictions: a youthful-offender conviction and a conviction based on a plea of nolo contendere. Neither prior felony offered by the State can be validly used under the HFOA; therefore, the State's argument that each sentence falls within the prescribed range does not support a finding of harmless error. The State offered no evidence to support its contention that Dixon would have received the same sentences if the trial court had not considered that Dixon had two prior felonies for purposes of applying the HFOA. We cannot say, on the basis of the record, that the sentences would have been the same, or, in fact, that Dixon would have pleaded guilty, had the State not offered evidence of two prior convictions. The Court of Criminal Appeals improperly affirmed the two sentences. Although Dixon's sentences must be reversed for the reasons discussed in Part I, we address Dixon's remaining issue to provide guidance to the trial court on resentencing. Dixon argues that the circuit court incorrectly imposed separate sentences for burglary in the first degree and robbery in the first degree, because both charges, he says, arose out of the same conduct. The State argues that Dixon did not make this claim at trial or in his motion for a new trial and, therefore, that it has been waived. However, this Court stated in Ex parte McKelvey: 630 So. 2d 56, 57 (Ala.1992). The State further argues that the crimes of robbery in the first degree and burglary in the first degree are separate and distinct crimes that require separate punishments; Dixon argues that both crimes arose out of the same instance of conduct and are, therefore, punishable in only one manner. Under the principles of double jeopardy, "[t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory *1079 provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). Therefore, "`[a] single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.'" Id. (quoting Gavieres v. United States, 220 U.S. 338, 342, 31 S. Ct. 421, 55 L. Ed. 489 (1911), in turn quoting Morey v. Commonwealth, 108 Mass. 433 (1871)). The statute defining "burglary in the first degree" reads: Section 13A-7-5, Ala.Code 1975. In order to convict a defendant of the crime of "robbery in the first degree," the State must show that he or she violated § 13A-8-43 (the statute defining "robbery in the third degree") and Section 13A-8-43, the third-degree-robbery statute, provides: Careful study of the statutes indicates that the charge of burglary in the first degree requires proof of one element that robbery in the first degree does not require, and that robbery in the first degree requires proof of one element that burglary in the first degree does not require. Burglary in the first degree requires proof that the defendant "knowingly and unlawfully enter[ed] or remain[ed] unlawfully in a dwelling." Robbery in the first degree does not require proof that the defendant unlawfully entered or remained in a dwelling. Robbery in the first degree requires that the defendant act in the course of committing a theft. Burglary in the first degree does not require that the defendant act during the commission of a theft. Therefore, under Blockburger, robbery in the first degree and burglary in the first degree are punishable as separate crimes, because each statute requires proof of an element that the other does not. This Court has held that "where a defendant is charged with both burglary and theft (or larceny) arising from a transaction that is the foundation for both charges, the defendant may receive only one punishment." Ex parte McKelvey, supra, 630 So. 2d at 57. In Dawson v. State, 675 So. 2d 897, 902 (Ala.Crim.App.1995), *1080 the Court of Criminal Appeals interpreted McKelvey as relying "on the fact that `[theft] and burglary are the same kindred of crimes.'" The Court of Criminal Appeals restricted the application of McKelvey, finding "it to be inapplicable to cases involving robbery and burglary, rape and burglary, or sodomy and burglary." Dawson, 675 So. 2d at 902. In each individual case, the courts must analyze the statutes involved. In this case, we conclude, after carefully analyzing the statutes, that burglary in the first degree and robbery in the first degree are not so similar as to encompass one another. Therefore, it was not error to punish Dixon under both statutes. He may be properly convicted under both statutes and properly sentenced under both statutes. Because Dixon's sentences were improperly enhanced under the Habitual Felony Offender Act, we reverse the judgment of the Court of Criminal Appeals to the extent it affirmed the two sentences. We remand this case for further proceedings consistent with this opinion. REVERSED AS TO SENTENCES AND REMANDED. HOOPER, C.J., and HOUSTON and JOHNSTONE, JJ., concur. SEE, LYONS, and ENGLAND, JJ., concur in the result. MADDOX, J., dissents. BROWN, J.,[*] recuses herself. [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

September 1, 2000

cd6605a7-41e2-41d1-8680-7a722dbaf1aa

Ex Parte Ward

782 So. 2d 1285

1990727

Alabama

Alabama Supreme Court

782 So. 2d 1285 (2000) Ex parte Charles Ray WARD. (Re Charles Ray Ward v. Mary Frances Ward). 1990727. Supreme Court of Alabama. September 15, 2000. *1286 Steven F. Long, Birmingham, for petitioner. Carl Dalton NeSmith, Jr., of Smith & NeSmith, P.C., Oneonta, for respondent. ENGLAND, Justice. Charles Ray ("the husband") and Mary Frances Ward ("the wife") were divorced on March 22, 1984. By an agreement entered at the time the divorce judgment was entered, the husband was to pay the wife the amount of his military retirement benefits, which at the time were $783.63 a month. His monthly retirement checks were, by the agreement, mailed directly to the wife. Under the agreement, the retirement benefits were "considered as child support ... and periodic alimony." The agreement did not provide for an adjustment in the amount of the payment after the child reached age 19. In December 1996, the husband stopped having the retirement checks sent to the wife and began paying her half the amount called for in the agreement. Three months later, he stopped sending anything. The wife petitioned for a rule nisi, asking that he be found in contempt for not paying the alimony and contending that he was more than $15,000 in arrears. The trial court held a hearing on the petition on August 12, 1998. At the hearing, the husband's attorney asked the wife about a relationship she had been having: The trial court issued a judgment finding the husband in contempt and ordering him to pay an arrearage in alimony, which the court determined to be $15,141.90. The husband appealed. The Court of Civil Appeals affirmed, without an opinion (but with a dissenting opinion). Ward v. Ward, 782 So. 2d 1284 (Ala.Civ.App.1999). We granted the husband's petition for certiorari review. *1287 The husband contends that at the hearing on the wife's petition for the rule nisi she admitted, in effect, to cohabitating with another man. Thus, he argues here, as he did at the hearing, that he was relieved of any obligation to pay alimony, by the operation of § 30-2-55, Ala.Code 1975. That Code section reads: Because the trial court found an arrearage in the husband's payments, payments that obviously would have been alimony (the child having reached majority before the husband reduced, and then stopped, the payments), we must assume the judge found the husband had not proved cohabitation. "Whether cohabitation exists is a factual determination for the trial judge in each case." Capper v. Capper, 451 So. 2d 359, 360 (Ala.Civ.App. 1984) (citing Tucker v. Tucker, 416 So. 2d 1053 (Ala.Civ.App.1982)). "Where the trial judge makes factual determinations based upon the evidence and finds the petitioner has met his burden of proof, this court will not substitute its judgment for that of the trial court unless it concludes that the trial court's findings are plainly and palpably wrong." Ivey v. Ivey, 378 So. 2d 1151, 1153 (Ala.Civ.App.1979) (citing Sutton v. Sutton, 55 Ala.App. 254, 314 So. 2d 707 (1975)). In Capper, supra, the court found that the wife's longtime paramour had lived in her apartment for 23 days, had kept his personal items there, and had shared her bed and engaged in sexual relations with her. The court held that this was enough to support a finding of cohabitation. Likewise, in Ivey, supra, the court found sufficient evidence of cohabitation where the wife admitted in interrogatories that she had shared an apartment with a man. In McCluskey v. McCluskey, 528 So. 2d 328 (Ala.Civ.App.1988), the Court of Civil Appeals found the evidence sufficient to support (though perhaps not to require) the trial court's finding of cohabitation: the former wife was not living full-time with her boyfriend, she and the boyfriend paid their own bills, and they maintained their own residences; however, the couple admitted that they stayed with each other 50% 75% of the time, that they had sexual intercourse, and that they considered their relationship open and notorious. "A petitioner must prove some permanency of relationship, along with more than occasional sexual activity[,] in order to establish cohabitation. Factors which suggest `some permanency of relationship' include evidence that the former wife and alleged cohabitant occupied the same dwelling and shared household expenses." Taylor v. Taylor, 550 So. 2d 996, 997 (Ala. Civ.App.1989) (citing Hicks v. Hicks, 405 So. 2d 31 (Ala.Civ.App.1981)). "In giving [§ 30-2-55] a rational, sensible construction, we find the legislature intended to strike a balance between the occasional brief sojourn and the common-law marriage. Thus, while not every occurrence of postmarital unchastity by a former spouse will bar the right to alimony, a petitioner need not prove the former spouse is habitually living with another and that the couple consider themselves married." Parish v. Parish, 374 So.2d *1288 348, 349 (Ala.Civ.App.1979) (citations omitted). Considering that the wife in this present case testified that she had lived with a man in the same house for 12 years, that he had helped with the expenses, and that they had had sexual relations, we find that the evidence was sufficient to support a finding that the wife had cohabitated with him. Further, we conclude that the trial court plainly and palpably erred in finding no cohabitation, because the evidence was supplied by the wife's own testimony and was uncontroverted. A trial court cannot ignore undisputed evidence. Carufel v. Hub Trucking, Inc., 687 So. 2d 200 (Ala.Civ.App.1996); State ex rel. Smith v. Smith, 631 So. 2d 252 (Ala.Civ.App.1993); Easterly v. Beaulieu of America, Inc., 717 So. 2d 406 (Ala.Civ.App.1998). The Court of Civil Appeals, in its cases construing § 30-2-55, has established the rule that "once there is sufficient proof that the spouse is openly living or cohabitating with a member of the opposite sex, no alimony accrues or matures beyond the time that such cohabitation began." Russell v. Russell, 586 So. 2d 12, 13 (Ala.Civ.App.1991). See Wood v. Wood, 682 So. 2d 1386 (Ala.Civ.App.1996). Therefore, the husband is not liable for any alimony after the date the wife began cohabitating with her boyfriend in 1986. The trial court thus erred in finding the husband in contempt and in ordering him to pay alimony for that period after the cohabitation began. The husband is not, however, entitled to a refund for any alimony he has already paid for that period after the cohabitation began. See the last sentence of § 30-2-55, Ala.Code 1975. Because the trial court's judgment was erroneous, we reverse the Court of Civil Appeals' judgment of affirmance. The cause is remanded for the Court of Civil Appeals to direct the trial court to enter an order consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and HOUSTON, SEE, LYONS, BROWN, and JOHNSTONE, JJ., concur. MADDOX and COOK, JJ., dissent.

September 15, 2000

b4062b53-a4fd-4254-9d75-373bb43a08f9

Ex Parte Kimberly-Clark Corporation

779 So. 2d 178

1990075

Alabama

Alabama Supreme Court

779 So. 2d 178 (2000) Ex parte KIMBERLY-CLARK CORPORATION. (In re William C. Hallmark v. Scott Paper Company.) 1990075. Supreme Court of Alabama. September 8, 2000. Richard W. Franklin, P. Vincent Gaddy, and Christopher B. Estes of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, L.L.C., Mobile, for petitioner. Joseph M. Matranga, Mobile, for respondent. Carl Robert Gottlieb, Jr., Mobile, for amicus curiae Municipal Workers Compensation Fund, Inc., and amicus curiae Alabama Nursing Home Ass'n Self-Insured Worker's Compensation Fund a/k/a Carecomp, in support of the petitioner. John J. Coleman III, Gregory C. Cook, and Laura G. Black of Balch & Bingham, L.L.P., Birmingham, for amicus curiae Business Council of Alabama, in support of the petitioner. Thomas T. Gallion III and Jamie A. Johnston of Haskell, Slaughter, Young & Gallion, L.L.C., Montgomery, for amicus curiae Goff NBA, Inc., in support of the petitioner's application for rehearing. Terry A. Moore of Vickers, Riis, Murray & Curran, L.L.C., Mobile, for amicus curiae International Paper Company, in support of the petitioner's application for rehearing. Charles F. Carr, Sarah Carlisle Pflaum, and Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for amici curiae AAA Cooper Transportation, American Cast Iron Pipe Co., Drummond Co., Tyson Foods, Inc., Vulcan Materials Co., and Wal-Mart Stores, Inc., in support of the petitioner's application for rehearing. Nancy Howell Lard of Janecky Newell, P.C., Birmingham, for amicus curiae Alabama Defense Lawyers Ass'n, in support of the petitioner's application for rehearing. David M. Wilson of Janecky Newell P.C., Birmingham, for amicus curiae Associated General Contractors of America, Inc., Alabama Branch, Workers' Compensation Self-Insurers Fund, in support of the petitioner's application for rehearing. LYONS, Justice. The opinion of June 9, 2000, is withdrawn and the following is substituted therefor. William Hallmark is a plaintiff in a workers'-compensation action pending in the Mobile Circuit Court. He had been employed by Scott Paper Company, now known as Kimberly-Clark Corporation. *179 Kimberly-Clark seeks a writ of prohibition directing Judge Edward B. McDermott not to reopen Hallmark's workers'-compensation case and to vacate his order of September 20, 1999, setting an evidentiary hearing on Hallmark's condition. For the reasons discussed below, we grant the petition and issue the writ. Kimberly-Clark employed William Hallmark as a general mechanic. On August 17, 1990, a pipe ruptured in the Kimberly-Clark plant. Hallmark was in the plant at that time and was working within the line and scope of his employment. The rupture caused a caustic substance to splash on Hallmark. The caustic substance severely burned his skin and caused substantial injury to his eyes. On July 22, 1991, Hallmark returned to work, after receiving temporary-total-disability-compensation payments for 47 weeks and six days. On August 17, 1992, Hallmark's treating physician, Dr. Richard Duffy, determined that Hallmark had reached maximum medical improvement. After reaching maximum medical improvement, Hallmark received compensation payments for 68 weeks of temporary partial disability. The trial court held a hearing on the question of Hallmark's disability and entered an order on August 9, 1993, awarding Hallmark workers'-compensation benefits. According to the trial court's order, Dr. Duffy found that Hallmark had suffered a 100% loss of use of his right eye and had suffered a permanent injury to his left eye, resulting in partial loss of vision. Dr. Duffy found a significant risk that Hallmark would develop complications in his left eye and a chance that Hallmark would become blind at some point.[1] The trial court found that, as a result of the injuries he had suffered in the industrial accident, Hallmark had suffered a 20% loss of ability to earn, and it entered a judgment awarding him compensation for a 20% permanent partial disability. The court determined that Hallmark was entitled to the benefits for the period of permanent partial disability, not to exceed 300 weeks, minus the number of weeks for which Kimberly-Clark had already paid Hallmark temporary and permanent benefits. The court also ordered that all future medical benefits and all benefits for vocational rehabilitation remain open, as provided for by the Workers' Compensation Act. The trial court's order concluded: Neither party sought review of the trial court's order. Specifically, Kimberly-Clark did not challenge, by petition for an extraordinary writ or otherwise, the portion of the trial court's order retaining jurisdiction over this case. On July 15, 1999, Hallmark petitioned the trial court to modify its August 9, 1993, order and asked for permanent-total-disability benefits. Hallmark contended that the trial court had retained jurisdiction over the case and had reserved the right to modify the order because of the potential for Hallmark's condition to deteriorate. Hallmark alleged that he had become 100% unemployable because of the deterioration of his sight and his becoming permanently blind. He asked the trial court to hold an evidentiary hearing and to amend the award to conform to his present disability. He attached to the petition the report of Dr. Matthew W. Mosteller, which stated that Hallmark was 100% unemployable, that he could not see well enough to read comfortably, and that he would not be able to pass a driver's test. *180 On August 26, 1999, Kimberly-Clark filed a response to Hallmark's petition, asking the trial court to deny it. Kimberly-Clark argued that there is no law under which Hallmark can petition the trial court to increase his disability rating. On September 20, 1999, the trial court overruled Kimberly-Clark's objection to Hallmark's petition and set an evidentiary hearing for November 10, 1999. Kimberly-Clark then petitioned the Court of Civil Appeals for a writ of prohibition directing the trial court not to hold the November 10, 1999, hearing. The Court of Civil Appeals denied the petition, without opinion, on October 5, 1999. Ex parte Kimberly-Clark Corp. (No. 2981494), ___ So.2d ___ (Ala.Civ.App.1999) (table). Kimberly-Clark then petitioned this Court for a writ of prohibition. See Rule 21, Ala.R.App.P. We must first determine the effect of the trial court's order of August 9, 1993. Kimberly-Clark contends that once the trial court has entered a judgment in a workers'-compensation case, it is conclusive and binding on the parties, subject to a party's right to appeal, citing § 25-5-81(a)(1), Ala.Code 1975 ("The decision of the judge hearing the same shall be conclusive and binding between the parties, subject to the right of appeal provided for in this article."). Based on that proposition, Kimberly-Clark then argues that the 1993 order was a final judgment from which Hallmark could have appealed, if he had desired to do so. Hallmark's failure to appeal, according to Kimberly-Clark, deprived the trial court of authority to reopen the August 9, 1993, order. The workers'-compensation laws of this state were patterned after Minnesota's Workmen's Compensation Act. See, e.g., Reed v. Brunson, 527 So. 2d 102 (Ala.1988). In its act, Minnesota provided a very limited right of reopening for change of the employee's condition after a settlement. See Minn. Gen.Stat.1913, §§ 8221, 8222. Our Legislature adopted virtually verbatim the reopening provision of the Minnesota act. See 1919 Ala. Acts, No. 245, p. 206, 225-26, § 24. In Davis v. Birmingham Trussville Iron Co., 223 Ala. 259, 135 So. 455 (1931), this Court limited the statutory right to reopen a workers'-compensation action to settlements between the parties and approved by the court. Minnesota sanctioned reopening in adversary proceedings, Mason's Minn. St. § 4319 (1927), but our Legislature did not incorporate such a provision into our workers'-compensation statute. In language unique to Alabama, the original act provided that the decision of the judge hearing the claim would be conclusive, 1919 Ala. Acts, No. 245, p. 206, at 224-25, § 24, and that any "[s]ubsequent proceedings thereon shall only be for the recovery of moneys thereby determined to be due." 1919 Ala. Acts, No. 245, at pp. 227-28, § 28. A clear deviation from the Minnesota law requires this court to "assume some legislative purpose in such departure from the model act." Steele v. Aetna Cas. & Sur. Co., 46 Ala.App. 705, 709, 248 So. 2d 745, 748 (1971). In the years since this Court decided Tombrello Coal Co. v. Fortenberry, 248 Ala. 640, 29 So. 2d 125 (1947), the Legislature has revisited the matter of finality in workers'-compensation awards. See Ala. Acts 1975, 4th Ex.Sess., No. 86, p. 2729; Ala. Acts 1984, Act No. 85-41, p. 44. On each occasion, the Legislature has carried over the language from the original statute, making compensation awards final and limiting subsequent proceedings to recovery of money determined in the original order to be due. See §§ 25-5-81(a)(1) and 25-5-88, Ala.Code 1975. In 1975, the Legislature amended § 24 of the original act to eliminate the power of the court unilaterally to modify settlements based on the postjudgment change of an employee's condition, so that now a settlement may be modified only by agreement of the parties, with court approval. See § 25-5-84, Ala.Code 1975. At that time, the Legislature enacted a new provision allowing reopening of permanent-total-disability *181 cases. See § 25-5-57(a)(4)b., Ala.Code 1975. This statute applies only when the employer petitions the trial court to reduce an award of permanent-total-disability benefits. On original submission, Kimberly-Clark called our attention to only two cases dealing with an order in a workers'-compensation case in which a trial court used language purporting to retain jurisdiction: Ex parte Johnston, 231 Ala. 458, 165 So. 108 (1935), and Ex parte DCH Regional Medical Center, 571 So. 2d 1162 (Ala.Civ. App.1990). In Ex parte Johnston, the trial court entered an order finding a temporary total disability and providing for payments for 300 weeks unless the disability terminated sooner, in which event compensation would then cease. The trial court's order contained a statement retaining the cause on the docket "for such further and necessary orders as may be mete and proper in the premises." 231 Ala. at 459, 165 So. at 109. More than 18 months after the rendition of the judgment, the employer filed in the trial court a motion alleging that he had paid in accordance with the earlier judgment and had been advised that the disability of the plaintiff had terminated; he argued that he should not be called upon to make further payments under the judgment. This Court granted certiorari review and set aside the trial court's order, in which it had modified its previous order finding a total disability and had substituted for it an order stating that the plaintiff suffered from only a permanent partial disability. This Court found that the retention of the cause on the docket conflicted with the precursors of §§ 25-5-81(a)(1) and 25-5-88, Ala.Code 1975 (stating that subsequent proceedings shall be only for the recovery of moneys determined by the earlier judgment to be due). This Court stated in Johnston that the trial court was without authority to reexamine the facts and to redetermine the character of the plaintiff's injuries and the degree of his disability, based upon the rule that the findings of the original judgment as to the extent and nature of the injuries were conclusive. 231 Ala. at 459, 165 So. at 109. The Court noted that, if the employer had been dissatisfied with the conclusion that the employee had suffered a temporary total disability of 300 weeks' duration, he should have appealed in order to have the judgment reversed or corrected. On application for rehearing, Kimberly-Clark calls our attention for the first time to Tombrello Coal Co., supra, which deals conclusively with the troublesome aspect of the proceeding before us-the failure of the employer to challenge by appeal or otherwise the trial court's express determination that it reserved jurisdiction because of the clear potential for deterioration of the plaintiff's condition. In Tombrello, the trial court's order provided: 248 Ala. at 641, 29 So. 2d at 126. Speaking to the effect of this order, this Court stated: 248 Ala. at 642, 29 So. 2d at 127 (emphasis added). This Court then wrote, with reference to the Johnston case: 248 Ala. at 643, 29 So. 2d at 127 (emphasis added). The case now before us is different from Johnston and Tombrello in that it presents a judgment left open for the benefit of the employee, as opposed to the employer. It is now the employee, not the employer, who is the victim of language in an order purporting to protect the future rights of the employee; we cannot reach, in order to protect the employee, a result we rejected when the language at issue had purported to protect the employer. It is for the Legislature, and not this Court, to create a remedy for reopening a judgment at the behest of the employee, as it has done for the employer through § 25-5-57(a)(4)b. APPLICATION GRANTED; OPINION OF JUNE 9, 2000, WITHDRAWN; OPINION SUBSTITUTED; PETITION GRANTED; WRIT ISSUED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., dissents. JOHNSTONE, Justice (dissenting). I respectfully dissent from granting the application for rehearing and granting the petition for a writ of prohibition. The case before us is distinguishable from Ex parte Johnston, 231 Ala. 458, 165 So. 108 (1935), and Tombrello Coal Co. v. Fortenberry, 248 Ala. 640, 29 So. 2d 125 (1947), cited by the majority. The distinguishing feature of the case now before us is the language in Judge McDermott's order that, "the Court hereby expressly retains jurisdiction over this matter and reserves the right to modify this Order." Neither the trial court order in Johnston nor the trial court order in Tombrello uses the word "jurisdiction" and thereby puts the parties on notice that the order includes an express decision on the issue of jurisdiction. Judge McDermott's order containing his decision on the issue of jurisdiction was either a final order a mere interlocutory order. If it was a final order, then the failure of Kimberly-Clark to appeal it allowed Judge McDermott's jurisdictional decision to become the law of the case, binding on the parties whether right or wrong. If, on the other hand, Judge *183 McDermott's express retention of jurisdiction rendered his order merely interlocutory, he may reassess the employee's disability because the case is still pending before him. Rule 54(b), Ala.R.Civ.P. [1] The trial court also heard testimony from Dr. Arnold Luterman, who testified that he had treated Hallmark for the second- and third-degree burns he received in the accident. Dr. Luterman opined that Hallmark had suffered a 5% whole-body permanent impairment as a result of his burns.

September 8, 2000

557a5942-ca67-48b3-9c18-a41cf9ca580f

Reliable Mech. Inc. v. Integrated Const. Serv. Inc.

781 So. 2d 207

1971092

Alabama

Alabama Supreme Court

781 So. 2d 207 (2000) RELIABLE MECHANICAL, INC. v. INTEGRATED CONSTRUCTION SERVICES, INC. 1971092. Supreme Court of Alabama. September 22, 2000. George M. Walker, Caine O'Rear III, and Lisa Tinsley O'Hara of Hand Arendall, L.L.C., Mobile; and Stuart E. Smith of Bell, Richardson, Smith & Callahan, P.A., Huntsville, for appellant. J. Allen Brinkley and Richard Chesnut of Brinkley & Chesnut, Huntsville, for appellee. BROWN, Justice. APPLICATION OVERRULED. HOOPER, C.J., and MADDOX, COOK, LYONS, JOHNSTONE, and ENGLAND, JJ ., concur. SEE, J., dissents. SEE, Justice (dissenting). On original submission, I concurred in the judgment affirming the trial court's judgment without an opinion, pursuant to Rule 53, Ala.R.App.P. After considering the arguments of the appellant, Reliable Mechanical, Inc., on its application for rehearing, I would now affirm the trial court's judgment, conditioned on the appellee's accepting a $119,170.20 remittitur of the punitive-damages award, reducing the punitive-damages award from $315,000 to $195,829.80. The jury found for Integrated Construction Services, Inc., on its claim alleging that Reliable had conspired to convert a check belonging to Integrated, and the jury awarded compensatory damages of $267.60. This amount, however, does not represent the full measure of the injury found by the jury. The trial court had instructed the jury to reduce any compensatory-damages award on the conspiracy claim by the amount of a pro tanto settlement of $65,000 that had been paid to Integrated by the dismissed defendant, Liberty National Bank. Absent evidence to the contrary, we must assume the jury followed the court's instruction. See John Crane-Houdaille, Inc. v. Lucas, 534 So. 2d 1070, 1073 (Ala.1988). Thus, the measure of damages was $65,267.60. See id. The converted check itself had been returned to Integrated before this lawsuit was filed. The trial court instructed the jury that Integrated's recovery of the converted check before trial reduced the amount of its damages "by the value of the [converted] property at the time it is returned." The amount of the check was $40,146.21. The trial court's instruction was a correct statement of law, but it does not mean that the jury found that the total actual damages suffered by Integrated on the conspiracy claim was the sum of the value of the converted property (the check for $40,146.21), the amount of the pro tanto settlement ($65,000), and the amount of the compensatory damages actually awarded by the jury ($276.60), that is, $105,422.81. Brown v. Campbell, 536 So. 2d 920, 922 (Ala.1988). In this case, the value of the converted property when it was returned was the same as when it was converted $40,146.21. Thus, the $40,146.21 face value of the check was not a component of the compensatory damages, and the measure of Integrated's compensatory damages was only the interest lost on that money (apparently, $276.60) during the time it was converted, and not the face value of the converted check. Therefore, the jury found that Integrated had suffered actual damage of $65,276.60. Accordingly, the amount of compensatory damages against which the punitive damages of $315,000 must be compared is $65,276.60. The ratio of punitive damages to compensatory damages in this case is almost 5:1. Because the ratio of punitive damages to compensatory damages exceeds the benchmark ratio of 3:1, there must be "special justification" for that deviation. Life Ins. Co. of Georgia v. Johnson, 701 So. 2d 524, 539 (Ala.1997) (See, J., concurring in part and dissenting in part). In my special writing in Johnson, I stated: 701 So. 2d at 539 (quoting BMW of North America v. Gore, 701 So. 2d 507, 522 (Ala. 1997) (Houston, J., concurring in the result)). This case involves only economic harm resulting from Reliable's intentional tortious conduct, and the record gives no indication that Reliable has engaged in the same or similar misconduct in the past. Therefore, I find no special justification for deviating from the 3:1 benchmark. Accordingly, I would order a remittitur of Integrated's punitive-damages award to an amount three times the compensatory damages, that is, $195,829.80.

September 22, 2000

3d3bd4da-a5e9-4a80-85ce-341a2044ed7d

Ex Parte James

797 So. 2d 413

1980820

Alabama

Alabama Supreme Court

797 So. 2d 413 (2000) Ex parte Charles Delwyn JAMES. (Re Charles Delwyn James v. State). 1980820. Supreme Court of Alabama. June 23, 2000. Dissenting Opinion on Overruling of Rehearing September 8, 2000. William E. Scully, Jr., Daphne, for petitioner. Bill Pryor, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for respondent. *414 JOHNSTONE, Justice. Charles Delwyn James was charged with unlawful possession of marijuana in the first degree in violation § 13A-12-213, Ala.Code 1975. James moved to suppress the marijuana on the ground that the marijuana was seized during an illegal Terry stop and patdown search. After conducting a hearing, the trial court denied the motion to suppress, and James entered a guilty plea to the charged offense, but reserved the right to appeal the denial of his motion. The trial court sentenced him to five years' imprisonment, but split the sentence and ordered him to serve 60 days in jail and the remainder of his sentence on probation. James appealed, and the Court of Criminal Appeals, on October 2, 1998, affirmed James's conviction and sentence in an unpublished memorandum. James v. State, 744 So. 2d 954 (Ala.Crim. App.1998) (table). James petitioned this Court for a writ of certiorari. We granted certiorari to review the evidence presented at the suppression hearing and to determine whether the investigatory stop and patdown search of James violated his constitutional guarantee against illegal search and seizure. The only witness who testified at the suppression hearing was Officer Larry Gill, who conducted the investigatory stop and the patdown search of James. Officer Gill testified that, on February 17, 1995, about 6:00 p.m. or 6:30 p.m. he was patrolling Dauphin Island Parkway, a known high drug crime area, when he noticed a van pulled off on the shoulder of the road on Cedar Downs Drive located off Dauphin Island Parkway. Officer Gill observed "two or three subjects talking into the window of the van," but he could not see what the driver or the subjects were doing. As Officer Gill approached the van, the "subjects" standing beside the van ran, and James, the driver of the van, drove away. Officer Gill followed the van and signaled his patrol lights for James to stop. After James pulled over at a Chevron gasoline station, he exited his van and met Officer Gill as he approached the van. Officer Gill told James he stopped him because Gill saw his van parked on the street "where those subjects ran from [his] van." Gill asked James whether he had any weapons in his possession, and James responded that he did not. Nevertheless, Officer Gill informed James that he needed to conduct a patdown search of James for safety reasons. Officer Gill testified that, as he was conducting the patdown, James "went to put his hands in his left front pants pocket and I kind of tapped his hand and told him to pull his hand out and I put my hand in [James's] pocket after his hand coming out [and] I found the marijuana cigarettes in his pocket." Officer Gill testified that he did not patdown the outside of James's pants pocket before he reached into it and that he did not feel anything that appeared to be a weapon during his patdown of James. The Fourth Amendment to the United States Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the United States Supreme Court recognized that "[t]his inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs." Terry, 392 U.S. at 8-9, 88 S. Ct. 1868. The Court held that a police officer may conduct a brief investigatory stop of a person if the officer has a reasonable suspicion supported by "specific and articuable *415 facts" that the individual is, or is about to be, involved in criminal activity. The officer may also conduct a patdown search of the outer clothing of the person if the officer "is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others." Terry, 392 U.S. at 24, 88 S. Ct. 1868. The search, however, must be "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." Terry, 392 U.S. at 26, 88 S. Ct. 1868. To justify the investigatory stop and patdown search, the officer's actions must not be in response "to his inchoate and unparticularized suspicion or `hunch,' but [must be in response] to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Id. at 27, 88 S. Ct. 1868. (Emphasis added.) In Gaskin v. State, 565 So. 2d 675 (Ala. Crim.App.1990), a case factually similar to the case before us, the Court of Criminal Appeals applied Terry and held that an officer's investigatory stop and search of Gaskin was illegal. While patrolling a high drug crime area, Officer Park observed Gaskin sitting in his truck parked in an alley off a main street and a person standing near the driver's side of the truck. Officer Park did not know whether the parties were talking, and he did not see the parties exchange anything. As Officer Park approached the parked truck, the person standing near the truck walked away and Gaskin drove away. Officer Park followed Gaskin, stopped him, and conducted a patdown search of him. During the patdown search, Officer Park felt a hypodermic needle in Gaskin's sock and removed the needle, which contained a clear liquid substance in the syringe. Officer Park arrested Gaskin, searched him further, and discovered another syringe, marijuana, and pills in his possession. The trial court denied Gaskin's motion to suppress the evidence. The Court of Criminal Appeals held that, because Officer Park failed to articulate specific facts to justify his Terry stop of Gaskin, the controlled substances seized during the illegal stop and search should have been suppressed. In reaching its decision, the Gaskin court found the United States Supreme Court's holding in Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979), compelling. In that case, Brown was arrested for illegal possession of drugs after he was stopped and searched by two police officers who had observed him and another man walk away from a man in an alley in a high drug crime area. Reversing Brown's conviction, the United States Supreme Court stated that "[t]he fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct." Brown, 443 U.S. at 52, 99 S. Ct. 2637. More recently, the Court of Criminal Appeals followed the rationale of the United States Supreme Court regarding Terry stops in Childs v. State, 671 So. 2d 781 (Ala.Crim.App.1995), where Officer Horn, who was patrolling a high crime drug area, observed a black man leaning into the passenger side window of Childs's car, which was stopped in the roadway. Officer Horn pulled his patrol car parallel to Childs's car to see what the parties were doing, and Childs drove a few feet. Officer Horn signaled his patrol car lights and stopped Childs. Officer Horn approached Childs, who remained in his car, asked Childs for his driver's license, and asked him what he was doing. Childs responded he was just talking to a friend. Officer Horn told Childs that he thought Childs may have been involved in a drug sale because he was stopped in a high drug crime area. Officer Horn then asked *416 Childs whether Horn could search the car, but Childs refused. Another officer brought a trained drug-sniffing dog, which found and indicated the scent of drugs on the passenger side of the car. Horn then obtained Childs's consent to search the car and found marijuana in a film canister on the front passenger's seat. Childs moved to suppress the marijuana on the ground that the investigatory stop and search violated his Fourth Amendment rights. The trial court denied the motion. On appeal, the Court of Criminal Appeals held that the trial court should have granted the motion to suppress because the investigatory stop of Childs was illegal and the evidence seized during the search was inadmissible "fruit of the poisonous tree." Childs, 671 So. 2d at 782. The court stated that the officer's "only basis for stopping [Childs] was that [he] was in an area known for drug activity and that someone was leaning into the window of [Childs's] car." Id. Therefore, the court concluded that there were insufficient facts to create a "reasonable suspicion" that Childs was involved in criminal activity. Id.; see also State v. Bodereck, 549 So. 2d 542 (Ala.Crim.App.1989) (holding that an officer's observation of a Cadillac parked in a high drug crime area and a black male leaning into the car did not create a reasonable suspicion to justify the Terry stop and search of the occupants of the Cadillac). We recognize the fairly recent case of Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). There the United States Supreme Court states the facts as follows: 528 U.S. at 121-22, 120 S. Ct. at 674-75. The issue was whether Officer Nolan was justified in conducting a Terry stop and frisk of Wardlow. Holding that the officer was justified, the Supreme Court reasoned: Wardlow, 528 U.S. at 124, 120 S. Ct. at 676 (emphasis added). The facts of the case before us are not analogous to the facts of Wardlow. James did not go on "headlong flight." He simply proceeded on his way in his van. The record contains no evidence that he drove hastily, erratically, or nervously. Moreover, James's driving away cannot be deemed "unprovoked" or "unusual." The people to whom he had been talking were gone. The more unusual conduct would have been to continue sitting in a parked van. Had Officer Gill chosen to pursue the "subjects" who ran, the Wardlow rule might be applicable. It is not, however, applicable to James's case. Just as in Gaskin and Childs, the officer in the case now before us did not articulate any specific facts that would create a reasonable suspicion that James was involved in criminal activity. The officer testified that he could not determine what James or the "subjects" were doing. He did not testify that he saw the parties exchange anything. Thus, the officer's stop of James was not legally justified, and the evidence seized during the search of James should have been suppressed. Even if Officer Gill had a reasonable suspicion to conduct an investigatory stop, his search for and seizure of the marijuana cigarettes from James's pants pocket exceeded the legal scope of Terry. *418 Terry permits a police officer to conduct a patdown search of a suspect's outer clothing to "discover guns, knives, clubs or other hidden instruments [which may be used] for the assault of the police officer." 392 U.S. at 29, 88 S. Ct. 1868 (emphasis added). The police officer may intrude beneath the outer surface of the suspect's clothing only if the police officer feels an object he reasonably suspects may be a weapon. Terry, 392 U.S. at 30, 88 S. Ct. 1868.[1] In Sibron v. State of New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968), the United States Supreme Court found that Patrolman Martin violated Sibron's Fourth Amendment right against unreasonable search and seizure when Martin, without first patting down Sibron's outer clothing for weapons, "thrust his hand into Sibron's pocket and took from him envelopes of heroin." 392 U.S. at 65, 88 S. Ct. 1889. In that case, Patrolman Martin observed, over an eight-hour period, Sibron talk with a number of known narcotic addicts. Although Martin did not hear the conversations between Sibron and the addicts and did not see anything passed between them, he approached Sibron and said to him: "You know what I am after." Sibron then "mumbled something and reached into his pocket." At that point, Patrolman Martin thrust his hand into the same pocket of Sibron and removed some envelopes containing heroin. 392 U.S. at 45, 88 S. Ct. 1889. In holding the seizure of the heroin was illegal, the United States Supreme Court stated that "[t]he search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception the protection of the officer by disarming a potentially dangerous man." Sibron, 392 U.S. at 65, 88 S. Ct. 1889. The Court noted that there was no evidence that Patrolman Martin feared for his safety when Sibron reached into his pocket. 392 U.S. at 64, 88 S. Ct. 1889. The rationale of the Sibron court was followed by the Alabama Court of Criminal Appeals in Ford v. State, 680 So. 2d 948 (Ala.Crim.App.1995), wherein the court held that Officer Whetstone violated Ford's protections against unreasonable search and seizure when Whetstone ordered Ford to remove the contents of his bulging shirt pocket. The court stated: Ford, 680 So. 2d at 951. See also White v. State, 49 Ala.App. 5, 267 So. 2d 802 (1972) (holding that a police officer's search for and seizure of a marijuana cigarette from the defendant's shirt pocket exceeded the scope of Terry because the police officer continued to search the defendant after his initial search did not reveal any weapons). In the case before us, Officer Gill did not patdown the outer surface of James's pants pocket to determine if a weapon was present and did not "inadvertently discover" the marijuana cigarettes under the "plain-feel" doctrine. When Officer Gill saw James attempt to reach his hand into his pants pocket, Gill moved James's hand, reached into the pants pocket, and removed the marijuana cigarettes. Officer Gill admitted that he did not patdown the pocket before he reached inside the pocket. Also, there was no evidence that Gill feared for his safety when he saw James attempt to put his hand in his pocket. Therefore, Officer Gill violated James's right against unreasonable search and seizure when he reached into James's pocket without any legally recognized justification gained from first patting down the outer surface of the pocket to determine whether a weapon was present. Having found that the Court of Criminal Appeals and the trial court erred, we reverse the judgment of the Court of Criminal Appeals and remand the cause to that court with instructions to remand to the trial court for proceedings consistent with this opinion. REVERSED AND REMANDED. COOK and ENGLAND, JJ., concur. HOUSTON, J., concurs in the judgment and in the opinion except as to Part IV ("The Unconstitutionality of the Stop"), as to which he dissents. LYONS, J., concurs in the judgment and concurs as to Parts I, II, III, V, and VI to the extent they deal with the search, but dissents as to Part IV. HOOPER, C.J., and MADDOX and SEE, JJ., dissent. BROWN, J., recuses herself.[*] HOUSTON, Justice (concurring in the judgment and in the opinion except as to Part IV, and dissenting as to Part IV). In my opinion, § 5 of the Constitution of Alabama of 1901, does not confer procedural protections of one's liberty interest beyond those required by Amendment IV of the Constitution of the United States. Certainly, the language is not the same: "[t]he right of the people to be secure in their persons ..., against unreasonable searches and seizures, shall not be violated...." Amendment IV, U.S. Constitution; "the people shall be secure in their persons ... from unreasonable seizure or searches ...." Section 5, Ala. Constitution. However, when the language is analyzed, *420 it is evident that both provisions confer the same procedural protections for an individual's liberty interestsecurity in his or her person against "unreasonable searches and seizures" (U.S. Const.); security in his or her person against "unreasonable seizure and searches" (Ala. Const.). Therefore, although the State of Alabama clearly has the power and freedom to extend greater liberty safeguards to those individuals within its boundaries than the Fourth Amendment to the United States Constitution extends to those individuals, Alabama has not done this by its organic law, and I will not do this by judicial ukase. In my opinion, the stop was constitutional; therefore, I dissent from Part IV. "The Unconstitutionality of the Stop." Otherwise, I concur. JOHNSTONE, Justice. APPLICATION OVERRULED. HOUSTON, COOK, LYONS, and ENGLAND, JJ., concur. HOOPER, C.J., and MADDOX and SEE, JJ., dissent. BROWN, J., recuses herself.[**] HOOPER, Chief Justice (dissenting). I do not understand how the majority can read the record in this case, consider the facts set out there, and then hold that the search of James was unconstitutional. To make such a holding, one must be blind to the circumstances surrounding the officer's decision to search James. See my dissent in Ex Parte Warren, 783 So. 2d 86, 97 (Ala.2000). Therefore, I respectfully dissent. [1] The United States Supreme Court has held also that a police officer may intrude beyond the outer clothing of a suspect if, during the patdown, the officer "feels an object whose contour or mass" gives him "probable cause to believe that the [object] is contraband." Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). See Allen v. State, 689 So. 2d 212 (Ala.Crim.App. 1995) (recognizing the "plain-feel" doctrine of Dickerson). In the case before us, Officer Gill did not testify that he felt the object in James's pants pocket and that the "contour and mass" of the object caused him to believe James possessed illegal drugs. In fact, Officer Gill did not patdown the outer surface of James's pants pocket before he reached inside the pocket. Thus, the "plain-feel" doctrine does not save Gill's patdown search for and illegal seizure of the marijuana cigarettes from James's pants pocket. [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case. [**] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

September 8, 2000

0067c504-e34a-430c-bc27-5d9ebf36171d

Williams v. Williams

786 So. 2d 477

1981613, 1981824

Alabama

Alabama Supreme Court

786 So. 2d 477 (2000) W. Curtis WILLIAMS v. John L. WILLIAMS. 1981613 and 1981824. Supreme Court of Alabama. September 29, 2000. Rehearing Denied November 22, 2000. *478 Kenneth L. Thomas, H. Lewis Gillis, John W. Adams, and Robert M. Weinberg of Thomas, Means, Gillis, Devlin, Robison & Seay, P.C., Montgomery, for appellant. Donald Maurice Jackson, Montgomery, for appellee. PER CURIAM. W. Curtis Williams, the athletic director at Alabama State University ("ASU"), solicited Coach John L. Williams to come to ASU and serve as interim head basketball coach. ASU is located in Montgomery. During the negotiations, Coach Williams insisted that he would not leave his position as head basketball coach at Savannah State University, in Georgia, unless ASU was willing to commit to him for more than a one-year contract. In a letter dated October 13, 1995, Athletic Director Williams responded to Coach Williams, stating: Coach Williams testified that, relying upon this letter, he resigned from his coaching position at Savannah State and moved his family to Alabama. When he sent Coach Williams that letter, the athletic director had not received approval of the 1996-97 employment guarantee from ASU President Dr. William Harris, who had sole authority to bind the University in employment matters. Dr. Harris accepted Coach Williams as the interim head coach, but rejected any proposal to guarantee Coach Williams's employment beyond the one-year interim. Harris instructed the athletic director to notify Coach Williams of that fact and to inform him that he would be assured only of a one-year contract with ASU. The athletic director did not inform Coach Williams of that fact before Coach Williams resigned from Savannah State and relocated to Alabama. In fact, the athletic director did not inform *479 Coach Williams that Dr. Harris had rejected the second-year provision of the offer until after Coach Williams had finished his first year at ASU. At the end of the one-year interim, Coach Williams applied for the job as permanent head coach at ASU, but he was not hired. The record shows that he searched nationwide for employment, but was unable to find employment as a college coach. Eventually, he was employed at Selma Middle School for six months, and he later was employed fulltime at Wallace State Community College in Selma as the head basketball coach. Contending that the athletic director had promised him two years of employment and that he had relied on the athletic director's promise, Coach Williams sued ASU and several members of its staff and/or board of trustees, both in their official capacities and as individuals. The trial court dismissed all of the claims against ASU because of its immunity. The trial court also dismissed all but one of the claims against the members of the ASU staff and board, both as officials and as individuals. The one claim that remained was a count against Athletic Director W. Curtis Williams as an individual. Because the complaint alleged that the athletic director had acted fraudulently and outside the scope of his employment, he was not protected by qualified immunity. The athletic director petitioned this Court for a writ of mandamus directing the trial judge to enter a summary judgment in his favor based on the doctrine of sovereign immunity and Article I, § 14, of the Constitution of Alabama; this Court denied the petition on December 18, 1998. Ex parte Williams, Case No. 1980303. After a trial on the merits, the jury found that the athletic director was liable to Coach Williams for breach of contract and fraud, and awarded Coach Williams $200,000 in compensatory damages and $150,000 in punitive damages. The court entered a judgment awarding Coach Williams $350,000. Athletic Director Williams appeals.[1] The athletic director argues that Coach Williams failed to prove the elements of promissory fraud, and, therefore, that the trial judge erred in submitting the fraud claim to the jury. The defendant athletic director argues that because the fraud claim involved a promise to act in the future, the plaintiff was required to prove that the athletic director intentionally deceived him by making the promise. We have held that "`"[t]he only basis upon which one may recover for fraud, where the alleged fraud is predicated on a promise to perform ... some act in the future ... is when the evidence shows that, at the time ... the promises of future action ... were made, the promisor had no intention of carrying out the promises, but rather had a present intent to deceive."'" Centon Electronics, Inc. v. Bonar, 614 So. 2d 999, 1003 (Ala.1993), quoting Hearing Systems, Inc. v. Chandler, 512 So. 2d 84, 87 (Ala.1987), quoting, in turn, Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515, 519 (Ala.1983). The athletic director claims that Coach Williams failed to prove a present intent to deceive, and, therefore, that the fraud issue should not have been submitted to the jury. ASU President Harris testified that the athletic director "knew full well" that the position Coach Williams would be filling was only "a one-year job." Dr. Harris also testified that before the athletic director transmitted the offer to Coach Williams, *480 he had been put on notice by Dr. Harris that the position would be an interim position for one year. The jury had before it evidence from which it could find that the athletic director, knowing his lack of authority and knowing Coach Williams's insistence upon a term of more than one year, made an offer that exceeded his authority. When told by Dr. Harris, one day after he had made the offer, that he should retract that portion of the offer dealing with employment in excess of a year, he did not do so. Viewing the evidence most favorably to Coach Williams, as we must, we conclude that it would support the jury's apparent finding of promissory fraud. The athletic director contends that he is protected from liability under the doctrine of State-agent immunity. See Ex parte Butts, 775 So. 2d 173 (Ala.2000), adopting the restatement of the immunity rule suggested in Ex parte Cranman, [Ms. 1971903, June 16, 2000] ___ So.2d ___ (Ala.2000). The defendant athletic director argues that contractual negotiations were left to his discretion and that he is entitled to be shielded from liability under this doctrine. However, it is undisputed that the athletic director did not have the authority to contractually bind ASU. Only President Harris was authorized to bind ASU contractually, and the athletic director knew that his authority was limited to negotiating employment contracts. Despite this knowledge, the athletic director represented to Coach Williams that a contract had been approved and, after being specifically told by Dr. Harris to advise Coach Williams of the misrepresentation contained in the letter, the athletic director failed to do so. The facts here support the conclusion that the athletic director did not have the discretion to act as he did. A state officer or employee is not protected under the doctrine of State-agent immunity if he acts willfully, maliciously, fraudulently, or in bad faith. Ex parte Butts, supra. The athletic director's fraudulent misrepresentations took him out from under the umbrella of immunity. The athletic director argues that the evidence did not support the award of compensatory and punitive damages. "The jury's verdict is presumed to be correct, and that presumption is strengthened by the trial court's denial of the motion for a new trial." Friendly Credit Union v. Campbell, 579 So. 2d 1288, 1291 (Ala.1991). See also Stokes v. Long-Lewis Ford, Inc., 549 So. 2d 51, 52 (Ala.1989); Merrell v. Joe Bullard Oldsmobile, Inc., 529 So. 2d 943, 946 (Ala.1988). Denying a motion for a new trial is within the sound discretion of the trial court. See Hill v. Cherry, 379 So. 2d 590 (Ala.1980). This Court will not reverse a judgment on a jury verdict on a weight-of-the-evidence basis unless the evidence, when viewed in a light most favorable to the nonmovant, shows that the verdict was plainly and palpably wrong and unjust. Christiansen v. Hall, 567 So. 2d 1338, 1341 (Ala.1990). Furthermore, we have written the following regarding our review of a jury verdict: G.M. Mosley Contractors, Inc. v. Phillips, 487 So. 2d 876, 879 (Ala.1986). See also Hollis v. Wyrosdick, 508 So. 2d 704 (Ala. 1987). *481 The evidence submitted to the jury supported a verdict of $200,000 in compensatory damages. The jury heard evidence from which it could find that the athletic director not only misrepresented the facts to Coach Williams, but then failed to prevent him from detrimentally relying on those misrepresentations. The evidence indicates that, as a result of the misrepresentation, Coach Williams suffered extensive compensable damage. The record shows that during the 1996-97 school year, Coach Williams would have earned at least $45,000 had the representation from the athletic director been accurate. However, because ASU was not bound by the athletic director's representation and did not comply with it, Coach Williams was employed by ASU for only six weeks during the 1996-97 year. Furthermore, the record indicates that Coach Williams was not able to find another job until January 1997, and that that job was by contract for a six-month temporary position. Then, in August 1997, Coach Williams took a coaching job with Wallace State in Selma, where, so far as the record suggests, he remains employed to this day. Nevertheless, if Coach Williams had been employed at ASU in accordance with the terms of the athletic director's representations, he would have earned at least $45,000 in salary.[2] It is undisputed that Coach Williams's compensation at the two subsequent jobs was less than what the athletic director had offered him to work at ASU. The record shows that because he relied on the misrepresentation Coach Williams was forced to withdraw and deplete the funds he had on deposit with the State of Georgia retirement system. The evidence also shows that while he was unemployed, Coach Williams lived off the proceeds from credit-card charges, and that he eventually was unable to make his monthly payments. As a result, the credit-card companies assessed, in addition to interest on the unpaid balance, late charges, fines, and penalties, none of which Coach Williams would have incurred had the athletic director's representations been true. The evidence further indicated that Coach Williams suffered extensive loss or damage apart from the monetary loss demonstrated in the record. He gave substantial testimony regarding the mental anguish he claimed to have suffered. The record shows the following testimony from Coach Williams: The record is replete with testimony and other evidence indicating Coach Williams suffered mental anguish. We wrote in Foster v. Life Insurance Co. of Georgia, 656 So. 2d 333 (Ala.1994): Id. at 337. Furthermore, the facts of this case present a vivid contrast to the facts of Kmart Corp. v. Kyles, 723 So. 2d 572 (Ala.1998), as well as the facts of Delchamps, Inc. v. Bryant, 738 So. 2d 824 (Ala.1999). In Kmart, this Court held that, because the plaintiff had failed to testify about her mental anguish, her mental-anguish damages award should be reduced from $100,000 to $15,000. In Delchamps, the plaintiff testified that dealing with being arrested and prosecuted had been "hard" and that as a result of his arrest and prosecution he was "put through humiliation." Delchamps, Inc. v. Bryant, 738 So. 2d 824, 837 (Ala.1999). Consequently, the jury's award of mental-anguish damages was reduced from $400,000 to $100,000. Delchamps, supra, at 838. Unlike the plaintiffs in Kmart and Delchamps, Coach Williams testified extensively about the suffering he endured, and, while no specified monetary amount can be proved, the law leaves it to the jury to determine, according to the facts shown in the particular case, the amount appropriate to compensate for such an injury. The defendant has not shown the compensatory award to be excessive, and from our review of the record we conclude that the evidence justifies the jury's award of compensatory damages. Finally, the athletic director argues that the punitive-damages award of $150,000 is excessive. In Green Oil Co. v. Hornsby, 539 So. 2d 218, 222 (Ala.1989), we stated that "[b]ecause the purpose of punitive damages is not to compensate the plaintiff but to punish the wrongdoer and to deter the wrongdoer and others from committing similar wrongs in the future, the proper amount of punitive damages rests largely within the jury's discretion." We added that while "punitive damages need bear no particular relationship to the actual damages, they, nonetheless, must not exceed an amount that will accomplish society's goals of punishment and deterrence." Id. The exercise of jury discretion *483 is subject to judicial review to ensure that it is not the result of bias, passion, prejudice, corruption, or other improper motive. Land & Assocs., Inc. v. Simmons, 562 So. 2d 140, 150 (Ala.1989); City Bank of Alabama v. Eskridge, 521 So. 2d 931, 932 (Ala.1988). In Green Oil Co., we held that a court reviewing a punitive-damages award should consider the following factors: Ratio of punitive damages to compensatory damages: Here, the jury found that the evidence supported an award of $200,000 in compensatory damages, greater than the punitive-damages award of $150,000. Therefore, the ratio of compensatory to punitive damages does not require a reduction of the punitive damages. Reprehensibility: The evidence showed that the athletic director used fraud to entice a person to come work for him. Not only did this fraud adversely affect these two parties, but it also adversely affected Savannah State University, as well as Coach Williams's family and the ASU administration. Furthermore, when given the opportunity to remedy his misrepresentations, the athletic director neglected to do so. Similar civil and criminal sanctions: This punitive award does not appear unusually large when compared with the punitive awards in similar cases. Profitability of conduct: Granted, the athletic director did not obtain any direct profit from his conduct; however, had the athletic director not been able to hire a coach by mid-October 1995, then ASU's basketball program would have been adversely affected during the 1995-96 season. Cost of litigation: The record contains no evidence of a dollar amount associated with this litigation. However, the action was filed on January 27, 1997, and resulted in a full trial. The plaintiff obviously incurred litigation expenses. Financial position of the defendant: It is uncontroverted that at the time of the trial the defendant athletic director Williams had a net worth of approximately $60,000 (specifically, $59,903). Subtraction of the $200,000 compensatory-damages award would bring his net worth to a negative $140,000. Wilson v. Dukona Corp., 547 So. 2d 70, 73 (Ala.1989). (Citations omitted.) By showing that he will have a negative net worth of $140,000 after paying the compensatory-damages award we are affirming, the defendant athletic director has shown that any award of punitive damages would be excessive. This Court wrote in Wilson v. Dukona Corp.: Wilson v. Dukona Corp., 547 So. 2d at 73-74. (Citations omitted.) *485 We affirm the judgment to the extent it makes a compensatory award of $200,000, on the condition that Coach Williams file with this Court, within 30 days, a remittitur of all punitive damages; otherwise, the judgment will be reversed and the case remanded for a new trial. The appeal in case no. 1981824 is dismissed (see note 1). 1981613AFFIRMED CONDITIONALLY. 1981824APPEAL DISMISSED. HOOPER, C.J., and MADDOX, HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. COOK, J., concurs in the result. [1] Athletic Director Williams actually appealed twice. We consider his first appeal (case no. 1981613) to be effective, and the second appeal (case no. 1981824) to be unnecessary. See Rule 4(a)(5), Ala.R.App.P. Therefore, the second appeal will be dismissed. [2] Evidence in the record also indicates that ASU had provided Coach Williams with $5,000 in additional compensation as a bonus, and we presume that if he had been employed for the 1996-97 year he would have received the same benefit for that year.

September 29, 2000

4cd51209-b09d-4f04-aa0d-207ac29b7a80

Alabama Catalog Sales v. Harris

794 So. 2d 312

1981594, 1981612

Alabama

Alabama Supreme Court

794 So. 2d 312 (2000) ALABAMA CATALOG SALES v. Gloria HARRIS. M.Q., Inc., d/b/a Montgomery Catalog Sales v. Gloria Harris. 1981594 and 1981612. Supreme Court of Alabama. September 15, 2000. Rehearing Denied April 6, 2001. *313 Peter S. Fruin of Maynard, Cooper & Gale, P.C., Montgomery; and David G. Crockett, Atlanta, Georgia, for appellant Alabama Catalog Sales. Joseph R. Kemp, Pell City, for appellant M.Q., Inc. Jere L. Beasley, Thomas J. Methvin, Andy D. Birchfield, Jr., and Mark Englehart of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellee. J. Michael Rediker, Thomas L. Krebs, Michael C. Skotnicki, and Peyton D. Bibb, Jr., of Ritchie & Rediker, L.L.C., Birmingham; Joseph C. Espy III of Melton, Espy, Williams, & Hayes, Montgomery; Lange Clark, Birmingham; Daniel B. Banks, Jr., of Morris, Conchin, Banks & Cooper, Huntsville; and Steven P. Gregory, Tuscaloosa, for amicus curiae Alabama Small Loan Borrowers. COOK, Justice. Alabama Catalog Sales and M.Q., Inc., d/b/a Montgomery Catalog Sales are defendants in an action pending in the Montgomery Circuit Court. They appeal from the trial court's order denying their motions to compel arbitration of the claims filed against them by Gloria Harris on behalf of herself and all other persons similarly situated. In her complaint, Harris alleges that the defendants violated the Alabama Small Loan Act[1] by making illegal "payday *314 loans" in amounts of $749.00 or less, charging usurious interest in excess of the rates allowed by the Act, and collecting on the loans without a license from the Bureau of Loans of the State of Alabama, citing Ala.Code 1975, § 5-18-2(a)(4), (5), and (6), and § 5-18-15(a). Harris contends that her contracts with the defendants are void because of illegality and, thus, that the arbitration agreements contained in those contracts are also void. The defendants contend that Harris executed valid arbitration agreements as part of her transactions, thereby subjecting all claims to arbitration. The defendants also argue that any question regarding illegality of the contracts is a question for the arbitrator, not the trial court, relying primarily on Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S. Ct. 1801, 18 L. Ed. 2d 1270 (1967).[2] The defendants *315 moved to compel arbitration pursuant to arbitration agreements executed as part of the contracts. The trial court denied their motions. The defendants appeal. We affirm. 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). A motion to compel arbitration is analogous to a motion for a summary judgment. Allstar Homes, Inc. v. Waters, 711 So. 2d 924 (Ala.1997); Allied-Bruce Terminix Cos. v. Dobson, 684 So. 2d 102 (Ala.1995). This case presents a question of law. Therefore, our review is "de novo." See Green Tree Fin. Corp. v. Vintson, 753 So. 2d 497 (Ala.1999); Jim Burke Automotive, Inc. v. Murphy, 739 So. 2d 1084 (Ala.1999); Patrick Home Ctr., Inc. v. Karr, 730 So. 2d 1171 (Ala.1999). The ultimate issue in this case is whether the trial court, or an arbitrator, determines the validity of a contract that contains a provision requiring that all claims arising therefrom be arbitrated.[3] We addressed a similar issue in Camaro Trading Co. v. Nissei Sangyo America, Ltd., 577 So. 2d 1274 (Ala.1991). In Camaro Trading, we affirmed the trial court's denial of a foreign corporation's motion to compel arbitration, holding that the foreign corporation could not compel arbitration pursuant to an arbitration clause in a contract because the entire contract was unenforceable and invalid as a result of the foreign corporation's failure to qualify to do business in Alabama. Id. at 1274-75. In Camaro Trading, we adopted the reasoning of the United States District Court for the Northern District of Georgia in A.J. Taft Coal Co. v. S & H Contractors, Inc. [Ms. 1-88-CV-436-MHS, October 4, 1988] (N.D.Ga.1988) (not reported in F.Supp.), aff'd. on other grounds, 906 F.2d 1507 (11th Cir.1990), cert. denied, 498 U.S. 1026, 111 S. Ct. 677, 112 L. Ed. 2d 669 (1991). The district court wrote: Id. at 1275; see Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995) (Justice Breyer stated that a state retains the power to regulate contracts, including arbitration clauses, under general contract-law principles, and may invalidate an arbitration clause upon such grounds as exist at law or in equity for the revocation of any contract); see also 6 C.J.S. Arbitration § 14 (1975); 5 Am.Jur.2d Arbitration and Award § 15 (1962). In Shearson Lehman Bros., Inc. v. Crisp, 646 So. 2d 613, 616 (Ala.1994), this Court held that the question whether a valid contract exists must be judicially determined. In Shearson Lehman Bros., we relied on Three Valleys Municipal Water District v. E.F. Hutton & Co., 925 F.2d 1136 (9th Cir.1991), from which we quoted extensively. Three Valleys involved an arbitration agreement between a governmental entity and a securities corporation. Id. at 1136. The United States Court of Appeals for the Ninth Circuit addressed the question whether the individual that signed the contract containing the arbitration agreement was actually authorized to sign such a document for the governmental entity. Id. at 1138. Therefore, the question in Three Valleys was whether there ever existed an agreement to arbitrate in the first place. The Three Valleys court stated: "[A] party who contests the making of a contract containing an arbitration provision cannot be compelled to arbitrate the threshold issue of the existence of an agreement to arbitrate. Only a court can make that decision." Id. at 1140-41. In other words, a trial court must determine the question whether a contract containing an arbitration agreement is void. Similarly, in this case, Harris challenges the very existence of the contracts. Harris contends that the contracts are illegal, and, therefore, void and unenforceable. The defendants argue that Harris failed to present substantial evidence of illegality. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). We conclude that Harris presented sufficient evidence indicating that the contracts in question are illegal, and, therefore, are void and unenforceable.[4] Likewise, Harris argues, the unenforceability of the contracts *317 extends to the agreements to arbitrate. We agree. Thus, if the contracts are void and unenforceable, no claims arising out of or relating to the contracts are subject to arbitration. See Shearson Lehman Bros., supra; see also Interocean Shipping Co. v. National Shipping & Trading Corp., 462 F.2d 673, 676 (2d Cir. 1972) (issue regarding the "very existence" of a contract is justiciable); cf. Camaro Trading, supra (question of the validity of a contract involving a corporation not qualified to transact business in Alabama is to be judicially determined). The record contains substantial evidence indicating that the underlying contracts violate the Alabama Small Loan Act. As this Court recently stated: NationsBanc Invs., Inc. v. Paramore, 736 So. 2d 589, 593 (Ala.1999), quoting Shearson Lehman Bros., Inc. v. Crisp, 646 So. 2d 613, 616-17 (Ala.1994) (emphasis in Shearson Lehman Bros.). Therefore, the trial court, as opposed to the arbitrator, must decide the ultimate question relating to the legality and enforceability of the contracts. Thus, the trial court properly denied the defendants' motions to compel arbitration. The order denying those motions is affirmed. AFFIRMED. MADDOX, HOUSTON, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. HOOPER, C.J., and SEE and LYONS JJ., dissent. *318 SEE, Justice (dissenting). I dissent from the affirmance of the order denying the defendants' motion to compel arbitration. We cannot know whether Harris's contracts with the defendants are void under the Alabama Small Loan Act until it has been determined that, as a fact, the defendants, in connection with those contracts, charged her more interest than is allowed by law. Harris alleges that the defendants charged her excessive interest; the defendants deny that they did. As the parties agreed, it is for the arbitrator, and not the court, to resolve this dispute. This case is not analogous to Shearson Lehman Bros. v. Crisp, 646 So. 2d 613 (Ala. 1994), in which this Court stated: 646 So. 2d at 616. In Shearson Lehman Bros., this Court adopted the reasoning of the United States Court of Appeals for the Ninth Circuit in Three Valleys Municipal Water District v. E.F. Hutton & Co., 925 F.2d 1136 (9th Cir.1991), including this statement: 925 F.2d at 1140. (Emphasis on avoid and rescind in original; other emphasis added.) This case is unlike Shearson Lehman Bros. and Three Valleys because Harris admits that she signed the arbitration agreements. Harris's claim that the contracts are void, even if supported by substantial evidence, is insufficient to allow her to avoid her agreement to arbitrate her disputes arising from these contracts, which she admits she signed and which are not facially void. It is for the arbitrator to determine whether the contracts impose usurious interest rates on Harris. LYONS, Justice (dissenting). I find Justice See's rationale persuasive, and I join his dissent. The issue before us is thoughtfully analyzed in In re Arbitration Between Nuclear Electric Insurance Ltd. and Central Power & Light Co., 926 F. Supp. 428, 433 (S.D.N.Y.1996), where an insurance contract containing an arbitration clause was challenged for noncompliance with a Texas statute providing that "`any contract of insurance effective in this state and entered into by an unauthorized insurer is unenforceable by such insurer.'" 926 F. Supp. at 430 (quoting Tex. Ins.Code art. 1.14-1, § 8). Based on its assertion that the contract was invalid because under the Texas statute Nuclear Electric Insurance, Ltd. ("NEIL"), was an "unauthorized insurer," Central Power and Light Company ("CPL") asserted that the arbitration clause was unenforceable. After discussing the portion of Three Valleys *319 Municipal Water District v. E.F. Hutton & Co., 925 F.2d 1136 (9th Cir.1991), referred to in Justice See's dissent, the Court in Nuclear Electric Insurance stated: Nuclear Elec. Ins., 926 F. Supp. at 434-36 (emphasis added). Harris's contention that the contract is invalid is not grounded on a claim of want of assent, but rather on a claim of unenforceability notwithstanding assent. Such a claim of invalidity must be determined by the arbitrator, not the court. [1] The Alabama Small Loan Act provides, in pertinent part: "Any contract of loan in the making or collection of which any act shall have been done which violates this section shall be void, and the lender shall have no right to collect, receive or retain any principal, interest or charges whatsoever." Ala.Code 1975, § 5-18-4(d). [2] Like a majority of courts, this Court reads Prima Paint narrowly. In Shearson Lehman Bros., Inc. v. Crisp, 646 So. 2d 613 (Ala.1994), we stated: "[I]n Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395, 87 S. Ct. 1801, 18 L. Ed. 2d 1270 (1967), the United States Supreme Court, construing the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (1982), held that a claim of fraud in the inducement of a contract that does not place in issue the making of the arbitration clause itself, is subject to arbitration. Prima Paint, 388 U.S. at 403-04, 87 S. Ct. 1801.... Although Prima Paint has ostensibly been construed to require the arbitration of any claim `unless there has been an independent challenge to the making of the arbitration clause itself,' Unionmutual Stock Life Ins. Co. of America v. Beneficial Life Ins Co., 774 F.2d 524, 529 (1st Cir.1985), Rhoades v. Powell, 644 F. Supp. 645, 653 (E.D.Cal.1986), aff'd sub nom., Rhoades v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 961 F.2d 217 (9th Cir.1992), it appears that the majority of courts have, on better reasoning, read Prima Paint more narrowly. In this connection, Three Valleys Municipal Water District v. E.F. Hutton & Co., 925 F.2d 1136 (9th Cir.1991), stated: "`We do not read Prima Paint so broadly. The plaintiffs in Rhoades and Unionmutual did not challenge the making of a contract, but sought to rescind a contract that admittedly existed. Despite the broad dicta in those cases suggesting that Prima Paint extends to "all challenges to the making of a contract," we read Prima Paint as limited to challenges seeking to avoid or rescind a contractnot to challenges going to the very existence of a contract that a party claims never to have agreed to. A contrary rule would lead to untenable results. Party A could forge party B's name to a contract and compel party B to arbitrate the question of the genuineness of its signature. Similarly, any citizen of Los Angeles could sign a contract on behalf of the city and Los Angeles would be required to submit to an arbitrator the question whether it was bound to the contract, even if its charter prevented it from engaging in any arbitration. "`Under this view, Prima Paint applies to "voidable" contractsthose "where one party was an infant, or where the contract was induced by fraud, mistake, or duress, or where breach of a warranty or other promise justifies the aggrieved party in putting an end to the contract." Restatement (Second) Contracts § 7 comment b (1981). If the dispute is within the scope of an arbitration agreement, an arbitrator may properly decide whether a contract is "voidable" because the parties have agreed to arbitrate the dispute. But, because an "arbitrator's jurisdiction is rooted in the agreement of the parties," George Day Constr. Co. v. United Bhd. of Carpenters, Local 354, 722 F.2d 1471, 1474 (9th Cir. 1984); see also I.S. Joseph Co. v. Michigan Sugar Co., 803 F.2d 396, 399 (8th Cir.1986) (an arbitrator "has no independent source of jurisdiction apart from the consent of the parties"); Smith Wilson Co. v. Trading & Dev. Establishment, 744 F. Supp. 14, 16 (D.D.C.1990) ("arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration"), a party who contests the making of a contract containing an arbitration provision cannot be compelled to arbitrate the threshold issue of the existence of an agreement to arbitrate. Only a court can make that decision.'" Shearson Lehman Bros., 646 So. 2d at 616, quoting Three Valleys Mun. Water Dist. v. E.F. Hutton & Co., 925 F.2d 1136, 1140-41 (9th Cir.1991). Because the present case turns on the question whether a contract exists and Prima Paint is inapplicable to challenges going to the very existence of a contract, Prima Paint is inapplicable in this case and the defendants' reliance upon that case is misplaced. [3] The arbitration agreement executed by Alabama Catalog Sales and Harris states, in pertinent part: "Any claims, counterclaims or other disputes which are subject to this Agreement and are in excess of the small claims court jurisdiction dollar limit must be arbitrated." The arbitration provision executed by Montgomery Catalog Sales and Harris states, in pertinent part: "All claims, demands, disputes, and controversies that may arise between the undersigned and Montgomery Catalog Sales, its assigns or its parent companies concerning any issue relating to this Purchase Order, and any and all issues relating to the purchase of Gift Certificates, products, or the cashing of checks of the undersigned by Montgomery Catalog Sales, its assigns or its parent companies, including, but not limited to fraud in the inducement of this contract, shall be arbitrated pursuant to the Federal Arbitration Act, and according to the rules and procedures of the American Arbitration Association." [4] The following colloquy occurred at the hearing on the motion to compel. It concerned the procedure involved in the transactions that occurred in this case: "BY THE COURT: So they canthey're paying ahead of time. What I'm understanding, a person needs money, they take a check to one of these companies, deposit the check, say I need a hundred dollars, okay? It's going to cost you a hundred and thirty dollars for two weeks to come back to get this check; is that right? "BY MR. BECK [attorney for defendant]: That's correct. But they don't deposit that check. The company holds that check. And at the end of that two weeks, the customer can either bring the money up there or they can let the company deposit that check. But he gets the merchandise anyway. From the first day, he gets a certificate for that merchandise. He can order it out of the catalog, send it in to the company, redeem it any time, or wait until two years. (footnote cont'd.) "BY THE COURT: Well, so he's buying a hundred thirty dollars' worth of merchandise. "BY MR. BECK: No, sir, it may be twenty-four, may be thirty dollars' worth. "BY MR. FRUIN [attorney for defendant]: Your honor, as an example for the company that I represent, someone may go in and need a hundred dollars, they will write a check for a hundred and twenty dollars. They'll be given one hundred dollars in cash at that time, and they'll be given a twenty dollar gift certificate to purchase merchandise. They can either purchase that merchandise right there "BY THE COURT: And get the merchandise at the time? "BY MR. FRUIN: No, no, they can't get the merchandise at the time. We do not actually sell the merchandise. It's through a catalog service. It goes through a different company, from another state, and is shipped directly to these people's homes either through [United Parcel Service] or the Postal Service, so there's a couple of weeks before they actually get the merchandise. "BY THE COURT: Twenty dollars' worth of merchandise? "BY MR. FRUIN: Twenty dollars' worth of merchandise, yes, sir. Or there are instances where folks will just come in and not deposit the check, there are instances where people just purchased merchandise out of our catalogs. There's no money being paidyou know, they will write a check for a hundred dollars and they may buy a hundred dollars' worth of merchandise. It can work in either circumstance. ". . . . "BY MR. BIRCHFIELD [attorney for plaintiff]: Judge, this whole case turns on whether or not these are loan transactions or gift certificates that they're buying. That's the whole thing, because I think that the defendant will agree that if these transactions are classified as loans, then they are illegal. They violate the Alabama Small Loan Act, if they are classified as loans. If they are not classified as loans, you know, then we don't have a case. But that's the whole. "BY THE COURT: What do you get back for the loan from the folks? The hundred dollars? "BY MR. BECK: You get a hundred dollars plus the merchandise." (R.T. 7-11.)

September 15, 2000

c68a9f1b-4446-445f-aaac-49e01a1a1d86

Ex Parte Morris

782 So. 2d 249

1990485

Alabama

Alabama Supreme Court

782 So. 2d 249 (2000) Ex parte Ben MORRIS and Gayle Morris. (Re Benjamin E. Morris and Cynthia Gayle Morris v. Terminix Services, Inc., et al.) 1990485. Supreme Court of Alabama. October 27, 2000. *250 Floyd C. Enfinger, Jr., Montrose, for petitioners. T. Julian Motes and Michael E. Gabel of Sirote & Permutt, P.C., Mobile; and Fred K. Granade and Samuel N. Crosby of Stone, Granade & Crosby, Bay Minette, for respondent. BROWN, Justice. Ben and Gayle Morris are the plaintiffs in a civil action pending in the Baldwin Circuit Court. They petition for a writ of mandamus directing Judge James Reid to vacate his November 29, 1999, order granting a motion of the defendants Terminix Services, Inc., and Allied Bruce-Terminix Company (hereinafter, collectively referred to as "Terminix") to compel arbitration. We deny the writ. In May 1997, the Morrises purchased a house located at 9671 Pleasant Road in Daphne, from Beulah Berga. Before the Morrises purchased the house, Terminix issued an "Official Alabama Wood Infestation Inspection Report," dated May 1, 1997. That report stated that the house had no visible signs of termite damage or infestation. However, the Morrises discovered substantial termite damage soon after they had purchased the house; Terminix agreed to pay for the work needed to repair that termite damage. On August 13, 1997, after the damage had been repaired, Terminix issued the Morrises a "Termite Protection Plan." This contract, which contained an arbitration clause, was signed by each of the Morrises, but it was furnished unilaterally by Terminix and it required no initial payment *251 from the Morrises.[1] The arbitration clause stated: On September 24, 1997, the Morrises' attorney wrote to Terminix and advised it that the Morrises had found active termites in their house. Terminix retreated the Morrises' house, and it paid for additional repairs to the house in an attempt to put the house in a condition satisfactory to the Morrises. Additionally, Terminix paid a number of incidental expenses associated with the repairs, including cleaning costs and the costs of alternative housing for the Morrises. The total amount Terminix paid for the repairs and incidental expenses was over $30,000. Despite numerous attempts by Terminix, the Morrises were not satisfied with Terminix's efforts to repair their house, and on April 27, 1999, they sued Terminix in the Baldwin Circuit Court, alleging misrepresentation and negligence or wantonness. The Morrises also asserted in the same action a fraud claim against Berga. On June 3, 1999, Terminix moved to compel arbitration, relying on the arbitration clause in the Termite Protection Plan. On October 6, 1999, the circuit court granted Terminix's motion to compel arbitration. The Morrises filed this petition for the writ of mandamus on December 15, 1999.[2] The writ of mandamus is a drastic and extraordinary remedy, to be issued only when there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte Horton, 711 So. 2d 979, 983 (Ala.1998) (citing Ex parte United Serv. Stations, Inc., 628 So. 2d 501 (Ala. 1993)); Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala.1991) (citing Martin v. Loeb & Co., 349 So. 2d 9 (Ala.1977)). Moreover, "`[t]he right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief,' and `[t]he writ will not issue where the right in question is doubtful.'" Ex parte Bozeman, 420 So. 2d 89, 91 (Ala.1982) (quoting Ex parte Dorsey Trailers, Inc., 397 So. 2d 98, 102 (Ala.1981)). "A petition for a writ of mandamus is the proper means by which to challenge a trial court's order granting a motion to compel arbitration." Ex parte Napier, 723 So.2d *252 49, 52 (Ala.1998) (citing Ex parte Phelps, 672 So. 2d 790 (Ala.1995)). An order granting a motion to compel arbitration is reviewed under an abuse-of-discretion standard. Capital Inv. Group, Inc. v. Woodson, 694 So. 2d 1268, 1270 (Ala.1997). The Morrises contend that their claims are not subject to the arbitration clause contained in the termite-protection plan because, they contend, their complaint alleges conduct based upon Terminix's representations contained in the Official Alabama Wood Infestation Inspection Report issued on May 1, 1997, which did not contain an arbitration clause. They argue that because the termite damage was discovered before August 13, 1997, the actions complained of in this lawsuit occurred before Terminix issued the protection plan that contained the arbitration clause. Alternatively, the Morrises contend that their claims are outside the scope of the arbitration clause because, they claim, the plan states that "Terminix is not responsible for the repair of either visible damage or hidden damage existing as of the date of this Agreement." The Morrises claim that this damage was discovered before the date of the agreement and, thus, that it is not covered. Finally, the Morrises cite this Court's opinion in Ex parte Discount Foods, Inc., 711 So. 2d 992 (Ala.), cert. denied sub nom Supervalu Inc. v. Discount Foods, Inc., 525 U.S. 825, 119 S. Ct. 71, 142 L. Ed. 2d 56 (1998), for the proposition that arbitration provisions in a contract do not extend to disputes that the parties did not agree to arbitrate. Initially, it would appear that the decision in Terminix International Co. v. Jackson, 723 So. 2d 555 (Ala.1998), a case with essentially the same facts[3] as those presented in the Morrises' action, controls the determination of this question. The Jacksons sued Terminix, alleging fraud and negligence arising out of Terminix's issuance of a "termite letter." They also alleged a breach of contract arising out of Terminix's termite-protection plan. The termite-protection plan contained an arbitration clause apparently stating that "The Purchaser and Terminix agree that any controversy or claim between them arising out of or relating to the interpretation, performance or breach of any provision of this agreement shall be settled exclusively by arbitration." See Allied-Bruce Terminix Cos. v. Dobson, 684 So. 2d 102, 110 (Ala.1995). This Court held that the Jacksons were required to arbitrate their breach-of-contract claim, but that the claims alleging fraud and negligence were outside the scope of the arbitration clause found in Terminix's termite-protection plan. The Court stated: 723 So. 2d at 558. An examination of the arbitration clause contained in the Morrises' Termite Protection *253 Plan reveals an agreement broader than the one contained in the plaintiffs' plan in Dobson. Whereas the arbitration agreement in Dobson related only to matters arising out of any provision of the termite-protection plan, the arbitration clause in the Morrises' plan covers "any controversy or claim between [the Morrises and Terminix] arising out of or relating to this Agreement or to the identified property in any way, whether by virtue of contract, tort or otherwise." "[A]n arbitration provision will be enforced in Alabama to the extent that enforcement is required by federal law." Green Tree Fin. Corp. v. Shoemaker, 775 So. 2d 149, 150 (Ala.2000). Moreover, cases interpreting the Federal Arbitration Act mandate that a court give the broadest possible interpretation to an arbitration agreement and resolve all doubts in favor of arbitration. A.G. Edwards & Sons, Inc. v. Syvrud, 597 So. 2d 197, 200-01 (Ala. 1992). The plain language of the arbitration clause contained in the Termite Protection Plan executed by the Morrises on August 13, 1997, requires them to submit to arbitration "any controversy or claim between [the Morrises and Terminix] arising out of or relating to this Agreement or to the identified property in any way, whether by virtue of contract, tort or otherwise." The claims presented by the Morrises' action are clearly "matters in dispute" between the Morrises and Terminix and are matters that arise out of or relate to the "identified property," namely the Morrises' house at 9671 Pleasant Road in Daphne; thus, the arbitration agreement encompasses the Morrises' claims alleging fraud and negligence or wantonness on the part of Terminix in regard to its issuance of the May 1997 "termite letter." The Morrises also argue that the arbitration agreement contained in the Termite Protection Plan is unenforceable for want of consideration. However, a similar claim was rejected in Green Tree Financial Corp. v. Vintson, 753 So. 2d 497, 502 (Ala.1999), wherein we held that an arbitration agreement is not unenforceable for want of consideration, where there is consideration for the contract as a whole. Moreover, the Morrises subsequently ratified the Termite Protection Plan by paying renewal fees in 1998 and 1999. See Ex parte Rush, 730 So. 2d 1175, 1178 (Ala. 1999). The Morrises benefited from the terms of the agreement by accepting additional repairs to their home, as well as by being paid for incidental expenses they incurred during the repair period, including cleaning costs and the cost of alternative housing. Finally, the Morrises argue that because their claims against Terminix arise out of the May 1997 "termite letter," rather than the August 13, 1997, Termite Protection Plan, they never agreed to arbitrate any claims that arose before the execution of the plan. In Crimson Industries, Inc. v. Kirkland, 736 So. 2d 597, 601 (Ala. 1999), this Court rejected a similar contention, holding that parties can agree to arbitrate disputes concerning prior transactions. Based upon the facts before us, we conclude that the trial court properly granted Terminix's motion to compel arbitration. WRIT DENIED. HOOPER, C.J., and MADDOX, HOUSTON, SEE, and LYONS, JJ., concur. ENGLAND, J., concurs in the result. COOK and JOHNSTONE, JJ., dissent. JOHNSTONE, Justice (dissenting). Suppose we sustain the order to arbitrate. What can the arbitrator do? *254 The arbitration paragraph expressly states, in pertinent part: "Therefore, the award shall not, and the arbitrator shall not have the power or authority to, hold Terminix responsible for (i) the repair or replacement of any termite damage to the identified property other than new termite damage as defined in this Plan...." (Emphasis added.) The "Termite Protection Plan" containing the arbitration paragraph provides that the definition of "new damage" "excludes damage existing at the inception date." Thus the arbitration paragraph prohibits the arbitrator from holding Terminix responsible for the plaintiffs' termite damage existing before the issuance of the "Termite Protection Plan." That is, the arbitration paragraph prohibits the arbitrator from granting relief on this claim. While the initial language of the arbitration paragraph is broad, as the main opinion states, this initial broad language is limited by the subsequent particularized prohibition on the power and authority of the arbitrator. See Ex parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33, 36 (Ala.1998) ("`[S]pecific terms and exact terms are given greater weight than general language.' Restatement (Second) of Contracts § 203(c) (1981)."); ERA Commander Realty, Inc. v. Harrigan, 514 So. 2d 1329, 1335 (Ala.1987) ("When there is a conflict in a contract, the specific substantive provisions control over general provisions."). The express language in the arbitration provision prohibiting the arbitrator from holding Terminix responsible for the preexisting termite damage manifests the parties' intention to exclude the plaintiffs' claim for the preexisting termite damage from the arbitration provisions and therefore effectively does exclude the plaintiffs' claim from the arbitration provisions. Because the arbitration paragraph prohibits the arbitrator from holding Terminix responsible for the plaintiffs' preexisting termite damage, the effect of the trial court's order to arbitrate is not to determine the appropriate forum for the plaintiffs' claim, but, rather, to destroy the plaintiffs' claim altogether. Nothing in the "Termite Protection Plan" or the arbitration paragraph thereof can be interpreted legitimately as either an accord and satisfaction or a release of the plaintiffs' claim for preexisting termite damage. Any relinquishment or settlement of claims must be clearly and unambiguously expressed. See, e.g., Shadrick v. Johnston, 571 So. 2d 1008 (Ala.1990); Smith v. State Farm Mut. Ins. Co., 494 So. 2d 7 (Ala.1986). I further dissent from the holding in the main opinion that the language of this arbitration paragraph is broad enough to apply retroactively to encompass the plaintiffs' claims preexisting the issuance of the "termite-protection plan." While the main opinion correctly cites Crimson Industries, Inc. v. Kirkland, 736 So. 2d 597 (Ala.1999), for the "holding that parties can agree to arbitrate disputes concerning prior transactions," 782 So. 2d at 253, the particular arbitration language now at issue does not constitute an agreement to arbitrate the preexisting claim. The language now at issue contains no reference to preexisting claims. In this regard, this case is distinguishable from Crimson Industries and each one of the three cases it cites for support. The description in Crimson Industries was "any claims [which] may exist or hereafter arise." 736 So. 2d at 601. The "hereafter arise" language implies that the parties intend to include all claims coming into existence at any time over a span of time, both past and future. The critical language in First Family Financial Services v. Rogers, 736 So. 2d 553, 555 (Ala.1999), is "your loan from us today; any previous loan." Likewise, the critical language in Merrill Lynch Pierce Fenner *255 & Smith, Inc. v. Kirton, 719 So. 2d 201, 203 (Ala.1998), is "any other agreement between [Merrill Lynch and Ms. Kirton], whether entered into prior [to], on, or subsequent to the date hereof." Finally, the critical language in Zink v. Merrill Lynch Pierce Fenner & Smith, Inc., 13 F.3d 330, 331 (10th Cir.1993), is "any controversy between us arising out of your business [which Merrill Lynch had been handling] or this agreement." Neither Crimson Industries, First Family, Kirton, nor Zink supports the proposition that the plaintiffs before us agreed to arbitrate the preexisting claim. Finally, I respectfully dissent from the main opinion insofar as it cites A.G. Edwards & Sons v. Syvrud, 597 So. 2d 197, 200-01 (Ala.1992), for, in part, the proposition that a court "give[s] the broadest possible interpretation to an arbitration agreement." The language in A.G. Edwards does not include the extreme words "broadest possible," and this language will likely cause interpretations not intended by the parties. For the reasons stated, I would grant the petition for a writ of mandamus and issue a writ directing the trial court to vacate the order to arbitrate. COOK, J., concurs. [1] Although no initial payment was required from the Morrises, there was a cost for annual renewal of the plan. Terminix's records indicate that the Morrises paid $121.97 on July 28, 1998, and again on July 28, 1999, in order to renew the termite protection plan covering their house. [2] We note that since the Morrises filed their petition, this Court has amended Rule 21, Ala.R.App.P., to provide that a petition for the writ of mandamus must "be filed within a reasonable time," and that "[t]he presumptively reasonable time for filing a petition seeking review of an order of a trial court shall be the same as the time for taking an appeal." Thus, under the rule as amended, a mandamus petition must be filed within 42 days of the order as to which the petitioner seeks review, unless the party can show good cause for delaying beyond the 42 days. See Ex parte Butts, 775 So. 2d 173, 176 (Ala.2000). The amendment to Rule 21 became effective September 1, 2000. [3] The facts of that case are set out in an earlier appeal, Terminix International Co. v. Jackson, 669 So. 2d 893 (Ala.1995).

October 27, 2000

e3524728-fafe-4029-b25b-e7cfc18f2988

Courtaulds Fibers, Inc. v. Long

779 So. 2d 198

1971996, 1972028

Alabama

Alabama Supreme Court

779 So. 2d 198 (2000) COURTAULDS FIBERS, INC. v. Horace L. LONG, Jr., et al. Horace L. Long, Jr., et al. v. Courtaulds Fibers, Inc. 1971996 and 1972028. Supreme Court of Alabama. September 15, 2000. *199 Wesley Pipes, Cooper C. Thurber, and William E. Shreve, Jr., of Lyons, Pipes & Cook, P.C., Mobile; and C.C. Torbert, Jr., of Maynard, Cooper & Gale, P.C., Montgomery, for appellant/cross appellee Courtaulds Fibers, Inc. Christopher E. Peters, Charles S. Willoughby, J. Keith Givens, and J. Farrest Taylor of Cherry, Givens, Peters & Lockett, P.C., Mobile, for appellees/cross appellants Horace L. Long, Jr., et al. Joseph P.H. Babington of Helmsing, Sims & Leach, P.C., Mobile; Rhonda Pitts Chambers of Rives & Peterson, P.C., Birmingham; and Charles A. Stewart III of Sirote & Permutt, P.C., Montgomery, for amicus curiae Alabama Defense Lawyers Association. PER CURIAM. Horace L. Long, Jr., and Margaret Long sued Courtaulds Fibers, Inc., alleging that it had released carbon disulfide (CS2) into the air, soil, and water during its manufacturing process and seeking damages based on harm they claimed to have incurred as a result of Courtaulds's actions. The Longs alleged nuisance, trespass, negligence, wantonness, and emission of an abnormally dangerous instrumentality. They sought to represent a class, and they sought both compensatory and punitive damages. Courtaulds moved for a judgment as a matter of law ("JML") on all claims, at the close of the plaintiffs' case. The trial court entered a JML as to the claims alleging wantonness and emission of an abnormally dangerous instrumentality; as to the class action claims; and as to the claim seeking punitive damages. It denied the motion as to the remaining claims. Courtaulds again moved for a judgment as a matter of law on the three remaining claims at the close of all the evidence. The court denied Courtaulds's motion and submitted the nuisance, trespass, and negligence claims to a jury; the jury returned a general verdict awarding the plaintiffs $1 million. The court entered a judgment on the jury's verdict. Courtaulds appealed. The plaintiffs cross-appealed, arguing that the trial court erred in entering the JML on their claim for punitive damages. On the appeal, we reverse and remand; we dismiss the cross-appeal. In or about 1952, Courtaulds began manufacturing rayon fabric at its Axis, Alabama, plant. In the manufacture of this fabric, Courtaulds uses CS2, which has been designated by the Federal Government as a hazardous material. See 42 U.S.C. § 7412(b)(1). Some amount of CS2 is released into the environment during *200 Courtaulds's production of rayon. In the 1960s, Mr. Long came into possession of a tract of land in Creola, Alabama, that is located approximately three to four miles from Courtaulds's Axis plant. In 1985, he began to keep horses on a portion of this land; in 1988 he married and he and Mrs. Long moved into a house he had built on the property. Mr. Long contended at trial that he noticed the smell of CS2 before 1987, and that beginning in that year the smell became a problem for him. Specifically, he complains that it caused a burning sensation in his nose and throat and prevented him from enjoying the use of his property. In 1991, the Longs noticed that the horses they kept on the property were beginning to lose weight and to have difficulty breathing. They had the horses examined by a number of veterinarians. Two of these horses died, and the Longs presented expert testimony at trial indicating that they had died as a result of exposure to a toxic substance. One veterinarian, Dr. Frederick W. Oehme, testified that he believed the CS2 caused the illness and death of the horses. In addition to the testimony concerning the damage or loss they claimed to have sustained as a result of the illnesses contracted by their horses, the Longs also offered testimony indicating that the value of the land had decreased by approximately $3 million because of the known presence of CS2. Courtaulds presents five issues on appeal: (1) whether the trial court erred in denying its motion for a JML on the Longs' nuisance claim; (2) whether the trial court erred in denying its motion for a JML on the Longs' trespass claim; (3) whether the trial court erred in denying its motion in limine to exclude testimony from the Longs' veterinary toxicologist expert; (4) whether the trial court erred in denying its motion for a JML on the Longs' claim of damages for mental anguish; and (5) whether the trial court erred in denying its motion for a new trial. In their cross-appeal, the Longs contend the trial court erred in entering a JML on their claim for punitive damages. In its motion for a JML made at the close of all the evidence, Courtaulds challenged, with specificity, the sufficiency of the evidence to support the nuisance claim. In Aspinwall v. Gowens, 405 So. 2d 134, 138 (Ala.1981), this Court held: However, if the defendant makes the specific objection, then this Court will not assume that the verdict was returned on a valid claim or count and will reverse for a new trial on the valid claims or counts. AALAR, Ltd., Inc. v. Francis, 716 So. 2d 1141, 1149 (Ala.1998). Courtaulds's motion for a JML made at the close of the plaintiffs' case and its motion for a JML made at the close of all the evidence both contain the following paragraph: The Longs contend that the evidence indicating that the defendant had failed to use "carbon-bed-absorption" recovery technology was substantial evidence indicating that the defendant had negligently or improperly operated its plant. However, the record contains no evidence indicating that the defendant violated its permit from the Alabama Department of Environmental Management ("ADEM"). In addition, during the period 1993-97, the defendant installed improved rayon-spinning machines; the installation of these machines increased the rate of CS2 recovery and substantially reduced emissions. The Longs also argue that carbon bed absorption is the industry practice in the United States, and, therefore, that Courtaulds acted negligently by not following that practice. Even if a jury can consider industry practice as evidence of a duty, the breach of which would constitute negligence, the record contains no evidence indicating that carbon bed absorption is the industry practice. The record does contain evidence indicating that the defendant's indirect parent company, Courtaulds PLC, used carbon bed absorption in its plants in Europe. Certainly, this fact aloneand that is all that is before us in regard to this argumentdoes not constitute substantial evidence indicating that the defendant was negligent in failing to retrofit its Axis plant with carbon-bedabsorption technology. The plaintiffs presented no expert testimony on this issue, and they presented no testimony indicating the defendant breached any standard or acted unreasonably by not installing carbon-bed-absorption technology in the Axis plant. We will not assume negligence; we will not assume improper operation. Ala. Code 1975, § 6-5-127(a), provides: Given the provisions of this statute, to support the verdict in this case the plaintiffs had to present substantial evidence of "negligent or improper operation of [Courtaulds's] plant." The record contains no substantial evidence indicating "negligent or improper operation." Thus, § 6-5-127(a) bars the plaintiffs' nuisance claim. The trial court erred in denying Courtaulds's motion for a JML on that claim. Furthermore, because in its JML motion Courtaulds specified the particular reasons the plaintiffs could not recover on the negligence and nuisance claims, we cannot assume that the jury's general verdict was returned on a valid claim or count in the complaint. Therefore, we must reverse for a new trial on the valid remaining claims. AALAR, 716 So. 2d at 1149. As shown above, the nuisance and negligence claims were not supported by substantial evidence, but we conclude that the plaintiffs did present sufficient evidence for the court to submit the trespass claim to the jury. Therefore, we reverse the judgment of the trial court and remand the cause for a new trial on only the trespass claim. Because we remand this case for a new trial, we do not reach the issues concerning the plaintiffs' claim for mental-anguish damages, and we do not consider Courtaulds's motion for a new trial based on an allegation of jury tampering. However, an evidentiary issue raised by Courtaulds will *202 be pertinent to the new trial; therefore, we will answer that issue now. Courtaulds argues that the testimony of the Longs' expert, Dr. Oehme, is insufficient under the standard announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and therefore, it argues, the Longs presented no admissible expert testimony to prove that CS2 caused the death of their horses. Courtaulds bases its argument on the assumption that this Court has adopted the Daubert standard in civil cases. However, this Court has not abandoned the "general acceptance" test stated in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), and it has not adopted the Daubert standard in civil cases. Southern Energy Homes, Inc. v. Washington, 774 So. 2d 505 (Ala.2000). See also Advisory Committee Notes to Rule 702, Ala.R.Evid., and Charles W. Gamble, McElroy's Alabama Evidence § 127.02(4) (5th ed.1996).[1] Courtaulds objects to Dr. Oehme's testimony because he has no scientific literature to support his opinions. Because he has no scientific literature to support his opinions, Courtaulds claims there was "no valid scientific basis" for his opinions and the testimony is therefore inadmissible under Daubert. However, neither the Frye test nor the Daubert standard applies to Dr. Oehme's testimony. Instead, this issue is controlled by Rule 702, Ala.R.Evid., which provides: Rule 702 does not require an expert to have scientific literature to support his or her opinion. Indeed, a reading of Rule 702 shows a clear rejection of such a narrow interpretation"a witness qualified as an expert by knowledge, skill, experience, training, or education" may give testimony thereto "in the form of an opinion." (Emphasis added.) See also McElroy's Alabama Evidence, supra, § 127.02(4) and (5). The narrow interpretation of Rule 702 advocated by Courtaulds would bar physicians from testifying about a differential diagnosisa diagnosis based upon ruling out all other causes. See Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248 (1st Cir.1998), and In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3d Cir.1994), cert. denied, 513 U.S. 1190, 115 S. Ct. 1253, 131 L. Ed. 2d 134 (1995). Dr. Oehme's opinions derive from knowledge, skill, and training he has received through his years of experience. This is all that is required under Rule 702. Therefore, we cannot say that the trial court abused its discretion in admitting the testimony of Dr. Oehme. We reverse the judgment of the trial court and remand the case for a new trial on the trespass claim. Because of this holding, we see no reason to address the Longs' cross-appeal. Therefore, the cross-appeal is dismissed. 1971996REVERSED AND REMANDED. 1972028DISMISSED. HOOPER, C.J., and MADDOX, HOUSTON, SEE, BROWN, and ENGLAND, JJ., concur. *203 COOK, J., concurs in part and dissents in part. JOHNSTONE, J., concurs in part and dissents in part as to the opinion and dissents as to the judgment in case no. 1971996. LYONS, J., recuses himself. COOK, Justice (concurring in part and dissenting in part). The main opinion holds that the trial court properly submitted the plaintiffs' trespass claim to the jury. To the extent of that holding, I concur. Paradoxically, however, the main opinion also holds that the trial court erred in submitting the nuisance claim to the jury. In Borland v. Sanders Lead Co., 369 So. 2d 523 (Ala.1979), this Court stated: Id. at 529. More specifically to my point, this Court explained that "conduct which rises to the level of trespass to land, generally speaking, [will] support a nuisance action." Id. n. 1 (emphasis added). This case is no exception to that rule. In Alabama, a "nuisance" is defined as "anything that works hurt, inconvenience or damage to another," and "[t]he fact that the act done may otherwise be lawful does not keep it from being a nuisance." Ala. Code 1975, § 6-5-120. In other words, an Alabama manufacturer owes a duty to neighboring landowners to use its property in a manner that will not "work[ ] hurt, inconvenience or damage" to them. In support of its holding, the main opinion cites Ala.Code 1975, § 6-5-127(a), which provides: (Emphasis added.) The operative language here is "when... the operation thereof was not a nuisance at the time the operation thereof began." (Emphasis added.) Clearly, the Legislature did not intend to confer absolute immunity. This clause limits the scope of immunity provided to the operator of a manufacturing facility whose emissions level reasonably corresponds to the level that existed "at the time the operation [of the facility] began." In other words, if the emissions level of an industrial plant rises over the life of the plant so as to constitute a manifold increase over the emissions level that existed "at the time the operation ... began," the section will not insulate the operator from liability. Section 6-5-127(a) is, therefore, consistent with the rules governing prescriptive nuisances. The right to maintain a private nuisance by prescription may be acquired, but only if, among other things, the use remains uniform. "To acquire the right to maintain a private nuisance by prescription, the nuisance must have been maintained in substantially the same manner and with equally injurious results throughout the entire prescriptive period; if the nuisance is of progressive character, there can be no acquisition of prescriptive right." Cook Indus., Inc. v. Carlson, 334 *204 F. Supp. 809, 818 (N.D.Miss.1971) (emphasis added). See also Stouts Mountain Coal & Coke Co. v. Ballard, 195 Ala. 283, 287-88, 70 So. 172, 174 (1915) (an invasion that is not "injurious or destructive to the owner[ ] will not authorize ... tacking to that period succeeding years in which the burdens upon the owner were increased or enlarged to the extent of producing injury or destruction, although the method of ... producing the result may be the same"); Schmidt v. Village of Mapleview, 293 Minn. 106, 108, 196 N.W.2d 626, 628 (1972) ("the right to acquire such a prescriptive [nuisance] is dependent upon its maintenance in substantially the same manner and with equally injurious result for the period required by the statute"). The Longs presented substantial evidence of such an increase in emissions as would defeat the claim of a prescriptive right. Indeed, it is undisputed that the emissions level at Courtaulds's plant increased from 30,000,000 pounds of carbon disulfide in 1986, to slightly less than 40,000,000 pounds in 1997, an increase of approximately 10,000,000 pounds annually. For one year in the 1990s, the emissions level reached 45,500,000 pounds. There was testimony that at the 1986 emissions level, the odor was "not a problem" on the Longs' property, but that, at the much higher levels produced in the mid 1990s, the smell was strong enough to irritate the nose and throat. There was testimony that, at these levels, the smell was occasionally strong enough to force the Longs temporarily to vacate their property. Under these facts, § 6-5-127(a) does not immunize Courtaulds. Thus, the jury was entitled to find that Courtaulds had created and maintained a nuisance. I, therefore, respectfully dissent from that portion of the main opinion holding that the trial court erred in submitting the nuisance claim to the jury. JOHNSTONE, J., concurs. JOHNSTONE, Justice (concurring in part and dissenting in part as to the opinion and dissenting as to the judgment in case no. 1971996). I concur with the holdings in the main opinion that the Longs presented substantial evidence supporting their trespass claim and that the trial court did not abuse its discretion in admitting the testimony of the Longs' expert, Dr. Oehme. However, because I respectfully dissent from the holdings that the Longs failed to produce substantial evidence to support their nuisance and negligence claims, I dissent from the reversal of the judgment of the trial court. In the 1960s, Horace L. ("Buddy") Long, Jr., inherited over 900 acres of land in Creola, Mobile County, Alabama. Beginning in 1985, Buddy began keeping seven or eight horses on the property. In 1986, Courtaulds emitted 30,000,000 pounds of CS2. Buddy did not live on the property until approximately 1987, when he built a house there. Buddy married Margaret in 1988. Through the years the Longs have sold about 100 acres of their property to friends and neighbors. Thus the Longs now own only 800 acres. The Longs' Creola property is approximately three to four miles away from Courtaulds's Axis, Alabama, plant. On the property are two lakes, two large ponds, pastures, and barns. The Longs also operate a marina and a campground on a portion of the property. However, a large portion of the Longs' property is wilderness, supporting beavers, ducks, geese, deer, and other wildlife. At trial, Buddy Long testified as follows. Before 1987, the CS2 odor emitted by Courtaulds's plant was not strong or frequent. He occasionally smelled CS2, but the smell was not a problem. After 1987, the CS2 odor became stronger and more frequent. The CS2 began causing a burning sensation in his nose and throat and prevented him from enjoying the use of his property. According to Buddy, the CS2 odor increased by 60% "in frequency and *205 in time." The CS2 odor was present whenever the wind blew from the north and whenever the air was heavy, but especially at night. The CS2 odor was so bad that often Buddy and Margaret had to leave their property. Additionally, the CS2 odor adversely affected their horses and cattle. Several witnesses who live or have lived near the Longs' property corroborated Buddy's testimony regarding the smell of CS2, particularly when the wind blew from the north and at night. They confirmed also that the CS2 odor has gotten stronger over the years. One neighbor testified that some of his horses also sickened and died. An Environmental Protection Agency (EPA) Toxic Release Inventory Fact Sheet for Alabama reveals that in 1991, Courtaulds discharged 42,454,520 pounds of CS2 into the air, discharged 43,105 pounds of CS2 into the "surface water," and discharged 430,000 pounds of CS2 into the land. Courtaulds's 1991 CS2 discharge was more than double the combined total discharge of the nine other Alabama plants that discharged CS2. Also in 1991, the Longs' horses began losing weight and began having difficulty breathing. Dr. Mary Brennan, a veterinarian specializing in the treatment of performance horses, performed blood tests on all of the Longs' horses. The tests showed elevated liver enzymes, which caused Dr. Brennan to conclude that a common cause affected the horses. After ruling out bacterial and viral infections, Dr. Brennan referred the horses experiencing a decline in health to Auburn University. The Longs took Rosie, one of the horses experiencing declining health, to Auburn for treatment of her respiratory problems. Veterinarians at Auburn placed Rosie on steroid therapy. While at Auburn Rosie improved, but her symptoms reoccurred when she returned to the Longs' property. Rosie eventually died. During Rosie's decline in health, Dr. Brennan began investigating possible causes of the Longs' horses' health problems. She did not find any poisonous plants, toxins in the soil, or toxins in the water which would cause the horses' symptoms. Dr. Brennan checked the horses' feed, but found no contaminants in the feed. Because the horses' symptoms did not cease in the winter, Dr. Brennan ruled out summer pasture associated chronic obstructive pulmonary disease (COPD), an asthma-like disease, which causes difficulty in breathing, but improves during the winter. She concluded that the horses were being exposed to some toxin. In 1992, Courtaulds recovered less than 10% of the CS2 used in its manufacturing process, and emitted over 45,000,000 pounds of CS2 into the air. Dr. Brennan moved to Georgia and ceased treating the Longs' horses. In September 1992, Dr. Albert Corte, a veterinarian who had practiced for 30 years, assumed the care and treatment of the Longs' horses. Lung and liver tissue samples were taken from one of the Longs' horses. Tests of the tissue samples revealed the presence of TTCA, a biomarker of CS2, in the liver and lung fluids. In 1993, as a result of future emissions limitations of the Clean Air Act Amendments of 1990, Pub.L. 101-549 and 104 Stat. 2399, Courtaulds began installing new rayon spinning machines that recover CS2 and reduce CS2 emissions. Courtaulds chose spinning machines over the "carbon bed absorption" recovery technology used for 30 years by the European plants owned by Courtaulds's parent corporation. Use of the "carbon bed absorption" recovery technology by Courtaulds would have reduced its CS2 emissions by 90%. However, Courtaulds chose not to use "carbon bed absorption" recovery technology because that technology is "revenue neutral." Rather, Courtaulds chose to use spinning machines to recapture CS2 and thereby to reduce Courtaulds's need to purchase CS2. Courtaulds could not recover the cost of "carbon bed absorption" recovery technology. Courtaulds represented to the Alabama Department *206 of Environmental Management (ADEM) that the new spinning machines would reduce its emissions by 75%. ADEM communicated this information to the citizens of Mobile County who had complained of Courtaulds's accidental release of rayon fibers. However, testimony reveals the maximum recovery achieved by the new spinning machines has been approximately 50-55%. In December 1993, Dr. Corte sent Whisper, another of the Longs' horses, to Louisiana State University (LSU) for treatment of chronic respiratory problems and for lung and liver biopsies. The veterinarians at LSU reported that Whisper had normal respiration but had summer pasture COPD. Dr. Corte told one of the LSU veterinarians that he disagreed with the diagnosis of summer pasture COPD. In January 1994, tests of Whisper's lung and liver tissues revealed the presence of CS2 and TTCA in Whisper's urine, liver, and lungs. The tests also revealed the presence of CS2 in Whisper's blood. Dr. Corte performed blood tests on the Longs' horses experiencing breathing difficulties and weight loss. The tests again showed elevated liver enzymes. In the spring of 1994, Dr. Corte sent Whisper back to LSU for further testing. LSU sent Dr. Corte a report indicating that Whisper was in remission from summer pasture COPD. Dr. Corte testified that he examines 1,500 or 2,000 horses in a year and that normally only two to three of those horses have COPDexcluding the Longs' horses. During the time that he has treated the Longs' horses, Dr. Corte has observed four to six of the Long's horses suffering from COPD. He testified that that number of horses with COPD is unusual. At the recommendation of the LSU veterinarians, the Longs removed their horses from their property and moved them to a property not exposed to CS2. The horses' health improved. Specifically, the respiratory and heart rates of the horses decreased to almost normal. The horses had less difficulty breathing. Dr. Corte then recommended that the Longs return the horses to their property. When the horses returned to the Longs' property, their respiration and heart rates increased and remained at an elevated rate. Additionally, the horses lost weight, not as a result of worms or bacterial or allergic infections. Dr. Corte asked Dr. Frederick W. Oehme, a veterinarian specializing in toxicology, for advice in determining the source of the horses' health problems. Following the advice of Dr. Oehme, Dr. Corte had tissue samples taken from some of the Longs' horses. Tests of the tissue samples revealed the presence of CS2 and the presence of some its metabolites. Dr. Corte testified that CS2 is not something a veterinarian expects to find in a horse, even though in 1966 veterinarians used CS2 in combination with other products to worm horses. He stated that veterinarians, including himself, no longer use CS2 to worm horses because of its toxicity. Horses wormed with CS2 develop gastric problems, "incoordination," and laminitis. Laminitis is the acute stage of "foundering" and is the sloughing off of the hooves of a horse. A horse that develops laminitis usually dies. In July 1996, Whisper was in very poor health. Whisper's tongue and her mucous membranes were blue, a sign of suffocation. Dr. Corte tried to relieve Whisper's suffering with various drugs. He recommended that the Longs take Whisper to LSU to have tissue samples taken again and to have Whisper checked for allergies. Veterinarians at LSU took tissue samples, which they analyzed. Tests revealed the presence of CS2 in Whisper's tissues. The LSU veterinarians sent copies of the test results to Dr. Corte. Whisper died in September 1996. LSU veterinarians performed a necropsy (an autopsy) on Whisper. During the necropsy, the LSU veterinarians took tissue samples, which they sent to Dr. Corte, who has retained the tissue samples in a freezer. Dr. Corte received also a copy of the necropsy report on Whisper. The LSU veterinarians could *207 not determine a cause of death for Whisper because Whisper's body had begun decomposing before the necropsy. Dr. Corte recommended that the Longs permanently remove their horses from their property. Dr. Corte does not believe that the Longs can humanely keep horses on their property. Upon the recommendation of Dr. Corte, the Longs leased property not contaminated with CS2 at a cost of $2,500 per year, and removed their horses from their Creola property to the leased property. The Longs hired Dr. Oehme to determine whether CS2 caused the horses' health problems and, ultimately, caused their deaths. Dr. Oehme reviewed the test results of the tissue biopsies of Rose and Whisper; the veterinary records of all of the Longs' horses; the LSU veterinary records on Whisper; and the Auburn studies of the Longs' horses. He spoke with Drs. Brennan and Corte about their observations and treatment of the Longs' horses. Dr. Oehme visited the Longs' property; toured the area by airplane and on foot; examined the Longs' horses; "viewed their feed, viewed their husbandry, viewed how they were taken care of"; examined the horses' lungs and hearts; and observed the horses' behavior before he began a literature search of what chemicals possibly caused the horses' health problems. Dr. Oehme did not find any scientific literature discussing CS2 exposure in horses. Dr. Oehme reviewed the deposition testimony of Buddy and of Drs. Brennan and Corte. He also reviewed OSHA's documents on the harmful effects of occupational exposure to CS2, the toxicity of CS2, and the toxicology profile of CS2. Dr. Oehme secured CS2 emissions information submitted by Courtaulds to the EPA. The EPA documents show that Courtaulds's 1991 annual emissions of approximately 43,000,000 pounds of CS2 was the highest emission of CS2 in Alabama. Dr. Oehme testified that he looked at all the possibilities that could produce the horses' health problems. He ruled out improper feeding and fungal poisoning of the grain feed as sources of the horses' problems. Dr. Oehme then checked the horses' water for nitrates, algae, or other toxic material; checked the horses' parasite level; checked the horses for bacterial or virus infections; and checked to see if the horses' breathing problems improved in the winter. Dr. Oehme did not find any bacterial, viral, or parasite problems. He did not find that the horses had any skin allergies. Additionally, Dr. Oehme learned that Buddy did not use pesticides in his farming operations. After Dr. Oehme reviewed the test results from the tissue samples taken from Whisper and Rosie, he determined that the horses did not suffer from lead, arsenic, or copper poisoning. Finally Dr. Oehme concluded that the horses were not suffering from allergic reactions. Upon his review of the matters set forth above, Dr. Oehme opined that the horses' exposure to CS2 caused their various health problems, including the horses' COPD, and ultimately caused the deaths of Whisper and Rosie. He admitted that he does not know the exact level of CS2 exposure which causes harm to horses but stated that an exact level of CS2 exposure is unnecessary in this case because the Longs' horses were exposed on a daily basis to small but continuous doses of CS2. Dr. Oehme stated further that the horses' continuous exposure to CS2 caused prolonged irritation in their lungs, and that the irritation caused scar tissue to develop in their lungs. The Longs hired Robert Nauman, an analytical chemist, to test their well water, groundwater, pond water, and creek water, and to test the sediments from the ponds and creeks on and near their property. Nauman has worked with CS2 in a laboratory and has performed testing at plants which use CS2 in a manufacturing process. He is familiar with the smell of CS2 and the smell of CS2 contaminated by hydrogen sulfide. When Nauman works with *208 CS2 in a laboratory, he works inside "a vacuum extraction hood" and wears a respirator. According to Nauman, the toxicity of CS2 necessitates such safety protocols. Nauman found "a fair amount of [CS2]," "other organics like toluene," and TTCA in sediment/mud from a creek across a road from the Longs' property. He found small amounts of CS2 in soil from the Longs' property. While standing on the front porch of the Longs' house, Nauman smelled CS2, which he described as "like a sulfur-type smell ... or rotten eggs." The Longs, Nauman, and Donald Tolbert, the chairman of the "Citizens Advisory Panel," met with David Christian, Courtaulds's vice president of operations, to discuss problems that Courtaulds's CS2 emissions caused the Longs' horses. Several weeks after the meeting, Christian telephoned the Longs. Christian and the Longs met informally at the Longs' home. The Longs explained their concerns about various chemicals, including CS2, causing harm to their animals. Buddy told Christian about some of his animals getting sick and dying. Christian testified that Mrs. Long was very upset about the sickness and the death of some of their animals. Christian suggested that the Longs hire a third party to study their horses' veterinary records to determine whether CS2 caused the horses' health problems. After meeting with the Longs, Christian instructed a Courtaulds employee to do a literature search for any scientific studies on the effect of CS2 on large animals. The employee did not find any scientific studies of the effect of CS2 on large animals. There are, however, scientific studies of the effect of CS2 on small animals and on humans. In 1997, Courtaulds completed the installation of the new spinning machines, which reduced Courtaulds's annual emissions of CS2 to slightly less than 40,000,000 pounds. At the time of trial, Courtaulds had made no attempt to reduce its CS2 emissions other than to install the new spinning machines. Courtaulds did not monitor the concentrations of CS2 emitted by the plant "stacks" and did not monitor the concentrations of CS2 on any surrounding properties. It had permits to discharge CS2, but the EPA had not established an ambient-air-quality level for CS2. As of the time of trial, the Longs had spent approximately $50,000 in veterinary expenses for treatment of their horses. They had spent approximately $2,500 per year leasing property where the horses can live without exposure to CS2 and the attendant health problems. The Longs presented expert testimony that their property is now stigmatized by the presence of CS2 and that the difference between the value of their property before the known presence of CS2 and the value after the known presence of CS2 is approximately $3,000,000. A private nuisance occurs when an invasion of the property results in no substantial damage to the property, but the invasion interferes with the use and enjoyment of one's property. Borland v. Sanders Lead Co., 369 So. 2d 523 (Ala.1979). See Alabama Pattern Jury Instructions: Civil (APJI) 31.50 (2d ed.1993). The defense of prescription bars recovery of damages for a private nuisance: APJI 31.51 (2d ed.1993) (emphasis added). See Beam v. Birmingham Slag Co., 243 Ala. 313, 10 So. 2d 162 (1942); Stouts Mountain Coal & Coke Co. v. Ballard, 195 Ala. 283, 70 So. 172 (1915); Lehigh Portland Cement Co. v. Campbell, 27 Ala.App. 130, 166 So. 727 (1936); Atlantic Coast Line R. Co. v. Harwell, 10 Ala.App. 587, 65 *209 So. 711 (1914). All four elements conjunctively are essential to the defense of prescription. Stouts Mountain Coal & Coke Co. The Longs sued Courtaulds in 1994. Therefore, to assert the defense of prescription successfully, Courtaulds had to prove that its CS2 emissions between 1984 and 1994 were of the same kind and degree for each year during that 10 year period. Stouts Mountain Coal & Coke Co., supra. Christian, the vice president of operations, testified that in 1986, the plant emitted 30,000,000 pounds of CS2, and that in 1994, three years before Courtaulds completed installation of the new spinning machines, plant emissions of CS2 reached a peak of 45,500,000 pounds. He admitted that plant emissions of CS2 have increased and decreased through the years. This testimony shows that Courtaulds's CS2 emissions were not of the same kind and degree during the 10-year period from 1984 through 1994. Additionally, Courtaulds submitted documents to the EPA which show that Courtaulds's CS2 emissions changed on a yearly basis between 1984 and 1994. Therefore, Courtaulds failed to establish the defense of prescription to bar the Longs' nuisance claim. Shelby Iron Co. v. Greenlea, 184 Ala. 496, 63 So. 470 (1913). Courtaulds argues also that the one-year statute of limitations in § 6-5-127, Ala. Code 1975, barred the Longs' nuisance claim. That section provides: At the time the Longs sued Courtaulds, Courtaulds had been operating its Axis plant for approximately 42 years. The Longs assert that § 6-5-127 did not bar their nuisance claim because the one-year statute of limitations does not apply "whenever a nuisance results from the negligent or improper operation," and the nuisance caused by Courtaulds's Axis plant resulted from its "negligent or improper operation." It is undisputed that, if Courtaulds had installed the "carbon bed absorption" recovery technology used by its parent company, Courtaulds's CS2 emissions would have decreased by 90%. Rather than installing equipment to reduce CS2 emissions, Courtaulds installed equipment to capture CS2 and thereby to reduce Courtaulds's need to purchase CS2. The refusal to install or use equipment that would reduce or abate a nuisance "would properly be classed as `a negligent or improper operation of any such plant,' ... without the protective feature of the statute." Martin Bldg. Co. v. Imperial Laundry Co., 220 Ala. 90, 94, 124 So. 82, 85 (1929). See also Stone Container Corp. v. Stapler, 263 Ala. 524, 83 So. 2d 283 (1955). Questions of negligence are for the jury to decide. Senn v. Alabama Gas Corp., 619 So. 2d 1320 (Ala.1993). The Longs presented substantial evidence to submit to the jury the issue whether Courtaulds's emissions of CS2 resulted from the "negligent or improper operation" of its plant. Consequently, the jury could have concluded that Courtaulds's "negligent or improper operation" of its plant caused a nuisance. Therefore, I respectfully dissent from the holding that the Longs did not present substantial evidence to support their nuisance claim. Additionally, Courtaulds does not raise or argue on appeal that the Longs did not *210 present substantial evidence to support their negligence claim. This Court will not address errors or issues not raised, or argued, in an appellant's brief. Smelser v. Trent, 698 So. 2d 1094 (Ala.1997); Boshell v. Keith, 418 So. 2d 89 (Ala.1982); Merchants Bank v. Cotton, 289 Ala. 606, 269 So. 2d 875 (1972); Smith v. Jackson, 277 Ala. 257, 169 So. 2d 21 (1964); Boles v. Bonner, 267 Ala. 342, 101 So. 2d 544 (1958). Therefore, I also respectfully dissent from the holding that the Longs did not present substantial evidence supporting their negligence claim. I also join in Justice Cook's special writing in this case. I concur with the dismissal of the crossappeal, case no. 1972028. [1] We allowed the Alabama Defense Lawyers Association (ADLA) to file an amicus curiae brief in support of Courtaulds. The ADLA asks this Court to abandon the Frye test in favor of the Daubert standard. The ADLA was not a party to this litigation below. This Court "will not decide a question presented by amicus curiae which was not presented by the parties to the cause, and will leave the question for decision when properly raised and presented." State ex rel. Baxley v. Johnson, 293 Ala. 69, 74, 300 So. 2d 106, 110 (1974). This issue was not raised by any of the parties to this case; therefore, we will not decide it here.

September 15, 2000

edd31855-48eb-477c-876e-26b179bc1a5c

Ex Parte Jordan

779 So. 2d 183

1990206

Alabama

Alabama Supreme Court

779 So. 2d 183 (2000) Ex parte Steven Wayne JORDAN. (Re Ernest Shaw and James Burrell v. Steven Wayne Jordan). 1990206. Supreme Court of Alabama. September 15, 2000. Ralph D. Gaines III, Christopher B. Greene, and David E. Miller, Jr., of Gaines, Wolter & Kinney, P.C., Birmingham, for petitioner. Charles A. Graddick of Sims, Graddick & Dodson, P.C., Mobile, for respondents. ENGLAND, Justice. James Burrell and Ernest Shaw sued Steven Wayne Jordan in the Mobile Circuit Court, alleging that Jordan had negligently or wantonly operated his motor vehicle, and, as a proximate result of his alleged negligent or wanton operation of the vehicle, had caused Burrell and Shaw to suffer personal injuries and property damage. The case was placed in the "expedited case-management system." The Mobile Circuit Court requires that a plaintiff file a "certificate of readiness" within 270 days of filing an action that has been placed in the expedited case-management *184 system. Approximately 150 days after the plaintiffs filed their complaint, the plaintiffs substituted their attorney of record. The plaintiffs did not file a certificate of readiness within 270 days. The trial court set a hearing for December 4, 1998, and notified the parties. The court reset the hearing for January 8, 1999, because the plaintiffs' attorney failed to appear for the December 4 hearing. At the second hearing, the plaintiffs' attorney again failed to appear; the trial court dismissed the case, without prejudice. On July 19, 1999, the plaintiffs moved for relief from the judgment of dismissal, asking that the case be reinstated and arguing that exceptional circumstances warranted reinstatement pursuant to Rule 60(b)(6), Ala.R.Civ.P. Specifically, they alleged that their attorney had never received notice informing him (1) that the case had been expedited, (2) that a certificate of readiness was due, or (3) that the hearings had been scheduled. The trial court denied the motion to reinstate, on August 20, 1999. On August 30, 1999, the plaintiffs, represented by new counsel, filed a document entitled "Motion to Reconsider Motion to Reinstate." After conducting a hearing, the trial court entered an order granting the motion to reinstate the case. Jordan petitions for a writ of mandamus directing the trial court to set aside its order granting the plaintiffs' second motion to reinstate. We grant the petition and issue the writ. A petition for the writ of mandamus is the proper method for securing review of a trial court's order granting a successive postjudgment motion. See Ex parte Keith, 771 So. 2d 1018 (Ala.1998), and Ex parte Baker, 459 So. 2d 873 (Ala.1984). "A writ of mandamus is an extraordinary remedy, and it 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 P & H Constr. Co., 723 So. 2d 45, 47 (Ala.1998) (quoting Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala.1993)). Jordan argues that the trial court lost jurisdiction over the case after it denied the plaintiffs' first Rule 60(b) motion. This Court has held that "[a] trial court does not have jurisdiction to entertain a motion to reconsider the denial of a Rule 60(b), [Ala.R.Civ.P.], motion." Ex parte Vaughan, 539 So. 2d 1060, 1061 (Ala.1989) (citing Ex parte Dowling, 477 So. 2d 400 (Ala.1985)); and see Ex parte Keith, supra. The plaintiffs moved to reinstate pursuant to Rule 60(b)(6). The court denied their motion. They later filed what they called a motion to "reconsider"; in its substance that motion was also a motion made pursuant to Rule 60(b)(6). The trial court granted that motion. However, after the trial court had denied the first Rule 60(b)(6) motionthe motion to reinstate it lacked jurisdiction to entertain the motion to "reconsider," which was a successive postjudgment motion. Therefore, we grant the petition for the writ of mandamus. The trial court is directed to set aside its order granting the plaintiffs' motion to "reconsider." PETITION GRANTED; WRIT ISSUED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, and JOHNSTONE, JJ., concur.

September 15, 2000

26dd5d0e-87cc-4187-b1f5-4a5ab82a3eee

Ex Parte Berry

794 So. 2d 307

1990230

Alabama

Alabama Supreme Court

794 So. 2d 307 (2000) Ex parte Douglas BERRY. (Re Douglas Berry v. Alabama Department of Corrections). 1990230. Supreme Court of Alabama. September 1, 2000. Rehearing Denied December 15, 2000. Douglas Berry, petitioner, pro se. Andrew W. Redd, general counsel, and William F. Addison, asst. general counsel, Department of Corrections, for respondent. COOK, Justice. Douglas Berry, an Alabama prisoner, appealed from the circuit court's summary dismissal of his writ of habeas corpus. The Court of Criminal Appeals, on September 10, 1999, affirmed by an unpublished memorandum, Berry v. Alabama Dep't of Corrections, (No. CR-98-1789) 778 So. 2d 882 (1999) (table). We granted Berry's petition for certiorari review. *308 Berry argues that the Department of Corrections, without providing him due process, deprived him of a liberty interest he claimed in remaining a part of the work-release program, by removing him from work-release status. Berry's removal from work-release status was the result of an administrative change in the criteria that determined an inmate's eligibility for the program. Berry further argues that the Department of Corrections' policy and procedures created on the part of an inmate a liberty interest in retaining work-release status. On December 8, 1992, Berry began participating in the work-release program, and he continued to do so for over six years. On February 12, 1999, his work-release status was revoked. On March 17, 1999, he was notified that he was to appear before a reclassification committee on March 18, 1999. On March 18, the reclassification committee informed Berry that he was being reclassified as a "heinous offender," pursuant to new criteria that became effective on February 3, 1999. The committee also informed Berry that because of his new classification as a "heinous offender" he was permanently ineligible to participate in the work-release program. Berry argues that he was entitled to a due-process hearing, as provided by the Department of Corrections' Classification Manual, before the Department of Corrections could revoke his work-release status. The United States Constitution has not been interpreted to confer on inmates a liberty interest in work-release programs. See Whitehorn v. Harrelson, 758 F.2d 1416 (11th Cir.1985). Nor has Alabama law. See Francis v. Fox, 838 F.2d 1147 (11th Cir.1988). In Fox, the United States Court of Appeals for the Eleventh Circuit stated: "The existence of a liberty interest in work-release arising from state law depends on the extent to which official discretion has been constrained by statute, regulation, or practice." Id. at 1149. Section 14-8-2(a), Ala.Code 1975, allows inmates to leave the prison facility and work at paid employment "at the discretion of the [B]oard [of Corrections]." Therefore, the statute governing work release does not confer a liberty interest, but leaves any inmate's participation in the work-release program to the discretion of the Board of Corrections. The Eleventh Circuit further held in Fox that the regulations employed in that case protected the Department's discretion in choosing inmates for the work-release program. Fox, 838 F.2d at 1149-50. However, Berry argues that the Department of Corrections' Classification Manual, not the statute, created a liberty interest, by stating: "No due process hearing is required for transfers among institutions other than removal from full work release status including free world employment, PDL or SIR." (Emphasis added.) The Classification Manual, by requiring a due-process hearing before an inmate is removed from full work-release status, imposes a restriction on the discretionary power of the Board of Corrections. This Court has not previously addressed the issue whether the Department of Corrections' regulation and practice confers upon an inmate a liberty interest in participating in the work-release program. However, the Eleventh Circuit has previously addressed this issue. In Whitehorn v. Harrelson, 758 F.2d 1416, 1422 (11th Cir.1985), the Eleventh Circuit narrowed the issue to "whether the State of Alabama, by statute, regulation, or practice, created a liberty interest in the plaintiff's continued participation in the Alabama work release program that could not properly be revoked without due process of *309 law." In answering that question the Eleventh Circuit wrote: Id. at 1424 (quoting Parker v. Cook, 642 F.2d 865, 876 (5th Cir.1981)). The Eleventh Circuit held that Whitehorn had "raised a genuine issue of material fact as to the regulations applicable at the time his work release status was revoked and as to the official prison practices regarding revocation of work release" and that the "[s]ummary dismissal of Whitehorn's claim was, therefore, inappropriate." Id. at 1425. Similarly, in this present case Berry argues that the procedures set out in the Classification Manual require a due-process hearing before an inmate's participation in the work-release program can be terminated. Berry has provided this Court with the portion of the Department of Corrections' Classification Manual that contains the language stating that "[n]o due process hearing is required for transfers among institutions other than removal from full work release status including free world employment, PDL or SIR." Berry also alleges that it has been the practice of the Department of Corrections to remove inmates from the work-release program only after the inmate commits some infraction of an administrative rule or regulation. The language in the Classification Manual prevents the Department of Corrections from arbitrarily removing an inmate from the work-release program, and, by doing so, creates a liberty interest in an inmate's continued participation in the work-release program. Therefore, the circuit court erred in summarily dismissing Berry's petition for the writ of habeas corpus. Berry's petition creates a genuine issue of material fact as to the applicability of the regulation to his work-release status. The judgment of the Court of Criminal Appeals is reversed, and the case is remanded for that court to remand to the circuit court for an order or proceedings consistent with this opinion. REVERSED AND REMANDED. HOUSTON, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. HOOPER, C.J., and MADDOX, SEE, and BROWN, JJ., dissent. *310 HOOPER, Chief Justice (dissenting). I must respectfully dissent. The main opinion relies on Whitehorn v. Harrelson, 758 F.2d 1416 (11th Cir.1985), for the determination that the Department of Corrections manual has given Douglas Berry a liberty interest in his work-release status. However, in Whitehorn, the United States Court of Appeals for the Eleventh Circuit stated that the revocation of work-release status may "trigger the protections of the due process clause if the State of Alabama, through its statutes, regulations, or official practices has placed substantive restrictions on the prison administration's discretion to revoke work release participation." 758 F.2d at 1426. That court found material questions of fact as to whether the practices of the Department of Corrections had placed restrictions on the Department's discretion to revoke an inmate's work-release status; therefore, the summary judgment was inappropriate. The Eleventh Circuit noted that a full factual development was required for a resolution of the issue: "The court must examine the statute creating the program, the regulations governing work release, and the practices of the prison officials in administering the program to determine whether any of these sources place a restriction on the prison official's discretion to revoke a prisoner's work release status." 758 F.2d at 1422. Although the Whitehorn court stated that the rules and procedures listed in the handbook "suggest[ed]" that the discretion to terminate a prisoner's work-release status may be limited, the court held that the issue should be resolved by the district court. Following Whitehorn, I would reverse the dismissal and remand the case for further proceedings in the trial court, rather than expressly finding that the Classification Manual created a liberty interest in Berry's continued participation in the work-release program. BROWN, Justice (dissenting). I dissent from this Court's judgment and opinion, which has the effect of reversing the summary dismissal of Berry's petition for the writ of habeas corpus. I dissent for the following reasons. First, Berry's petition for certiorari review does not comply with the requirements of Rule 39, Ala.R.App.P., because he did not incorporate in his petition a statement of additional facts presented to the Court of Criminal Appeals with his application for rehearing and he did not attach a copy of such a statement to his petition. Indeed, an examination of the Court of Criminal Appeals' ruling on Berry's application for rehearing reveals that Berry did not file with his application for rehearing a Rule 39(k) motion for a statement of additional facts. Therefore, certiorari review by this Court is precluded. See Ex parte Winchester, 544 So. 2d 967 (Ala.1989); Ex parte Moore, 493 So. 2d 988 (Ala.1986). Moreover, part of the evidence upon which the majority bases its decision to reverse the judgment of the Court of Criminal Appeals is not contained in the record on appeal. Rather, this evidence consisting of copies of Berry's "24 Hour Advance Notification of Pending Reclassification"; correspondence from the Department of Corrections' director of classification to Berry; an excerpt from the Department of Corrections' Classification Manual; and a copy of a change in the classification policyis contained in an addendum to Berry's supplemental brief, and those items are identified as Appendices A, B, C, and D. Only the form identified as Appendix A is included in the record on appeal. (C.R.22.) "[A]ttachments to briefs are not considered part of the record and therefore cannot be considered on appeal." *311 Chandler v. State, 677 So. 2d 1286, 1287 (Ala.Crim.App.1996); Huff v. State, 596 So. 2d 16, 19 (Ala.Crim.App.1991). Further, I do not believe Berry had a protected liberty interest that triggered the due-process requirements established in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). In Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), the United States Supreme Court set out the standard by which to evaluate whether alleged liberty interests are protected by the Due Process Clause, and, thus, entitled to the procedural protections outlined in Wolff v. McDonnell: Sandin, 515 U.S. at 483-84, 115 S. Ct. 2293 (citations omitted). Both our state courts and federal courts have long held that inmates of Alabama's prison system do not have a liberty interest with respect to their classification. See Handley v. State, 549 So. 2d 630, 631 (Ala.Crim.App.1989) (citing Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983)). The courts have likewise held that this state's work-release statutes do not confer a liberty interest on inmates. See Dukes v. State, 576 So. 2d 683 (Ala.Crim.App.1991); Francis v. Fox, 838 F.2d 1147 (11th Cir.1988). Finally, even if we determined that the information contained in the appendices to Berry's supplemental brief is properly before us, it would not entitle him to relief. Berry contends that he was entitled to procedural due process before being removed from work release. Indeed, there is some support for his contention. The administrative provision concerning an inmate's reclassification (Appendix C) states that "No due process hearing is required for transfers among institutions other than removal from full work release status including free world employment, PDL or SIR." Under Wolff, an inmate facing a disciplinary proceeding is entitled to notice of the claimed violation, a right to call witnesses and to present documentary evidence in his behalf, and a written statement by the fact-finders as to the evidence relied on and the reasons for the disciplinary action. See Wolff v. McDonnell, 418 U.S. at 563, 94 S. Ct. 2963; Brown v. State, 592 So. 2d 621, 623 (Ala.1991). The record indicates that Berry's reclassification hearing substantially complied with the requirements set out in Wolff v. McDonnell. He was served with a "24 Hour Advance Notification of Pending Reclassification" (C.R. 22; Appendix A). That notice advised Berry that he would meet with a reclassification team that was to determine if a change in classification criteria necessitated a change in his placement and/or custody. The notice further advised Berry that, during the meeting, he would be given an opportunity to be heard, to present witnesses, and to present documentary evidence. Also, the reclassification team provided Berry a written statement as to the evidence relied on and the reasons for the team's action, namely, that the crime for which Berry was convicted *312 constituted a "heinous crime," "heinous" because he had murdered his wife in order to receive the proceeds from an insurance policy. In addition, the reclassification team's decision was supported by "some evidence." See Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985); Headley v. State, 720 So. 2d 996, 997 (Ala.Crim.App.1998). Thus, Berry was entitled to no more "process" than he actually received. I would affirm the Court of Criminal Appeals' judgment affirming the order dismissing Berry's petition for the writ of habeas corpus. SEE, J., concurs.

September 1, 2000

8eeeb6a1-fbbd-4f7a-b79c-ae1b65d5dc2c

Ex Parte Pierce

851 So. 2d 606

1981270

Alabama

Alabama Supreme Court

851 So. 2d 606 (2000) Ex parte Andy Dwight PIERCE. (Re: Andy Dwight Pierce v. State). 1981270. Supreme Court of Alabama. September 1, 2000. *607 Ellen L. Wiesner of Cannon & Dunphy, S.C., Brookfield, Wisconsin, for petitioner. William H. Pryor, Jr., atty. gen.; and George A. Martin, Jr., and Beth Jackson Hughes, asst. attys. gen., for respondent. Thomas W. Sorrells, Montgomery, for amicus curiae Alabama District Attorneys Association. HOOPER, Chief Justice. The opinion of May 26, 2000, is withdrawn and the following is substituted therefor. On January 26, 1989, Andy Dwight Pierce was convicted of murder committed during the course of a robbery, and he was sentenced to death by electrocution. His conviction was affirmed on appeal, but the Court of Criminal Appeals remanded the case for resentencing because improper information had been admitted during the sentencing phase of the trial. Pierce v. State, 576 So. 2d 236 (Ala.Crim.App.1990). Pierce was resentenced to death, on April 15, 1991. On return to the remand, the Court of Criminal Appeals ordered a hearing to determine whether the prosecution could provide race-neutral reasons for its use of peremptory strikes to exclude blacks from the jury venire. Pierce v. State, 586 So. 2d 1005 (Ala.Crim.App.1991). On return to the second remand, the Court of Criminal Appeals held that the prosecution had offered race-neutral reasons for its strikes and that the trial court had properly resentenced Pierce to death. Pierce v. State, 612 So. 2d 514 (Ala.Crim. App.1992). This Court affirmed the conviction and the resentencing, Ex parte Pierce, 612 So. 2d 516 (Ala.1992), and the United States Supreme Court denied certiorari review, Pierce v. Alabama, 510 U.S. 872, 114 S. Ct. 201, 126 L. Ed. 2d 158 (1993). The Court of Criminal Appeals issued a certificate of judgment on February 3, 1993. On December 2, 1994, Pierce filed a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P. The trial court dismissed several claims, finding that they were procedurally barred by Rule 32.2(a)(2), (3), (4), and (5), Ala. R.Crim. P. After conducting an evidentiary hearing, *608 the trial court entered an order denying Pierce relief on all of his remaining claims. The Court of Criminal Appeals affirmed. Pierce v. State, 851 So. 2d 558 (Ala.Crim. App.1999). This Court granted Pierce's petition for certiorari review, to examine one of Pierce's four claimsthat Sheriff Douglas Whittle had been a key witness for the prosecution and that he had improperly had close and continual contact with the jury throughout the trial. The Court of Criminal Appeals held that this issue was procedurally barred by Rule 32.2(a)(3) and (5) because it was not raised at trial or on direct appeal, and it further held the claim to be without merit. We reverse and remand. The United States Supreme Court in Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965), held that the defendant's right to a fair trial was violated by the fact that two deputy sheriffs who were key witnesses for the prosecution had charge of the jury during the defendant's three-day trial. The Supreme Court stated: "`In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, "indifferent" jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process.'" 379 U.S. at 471-72, 85 S. Ct. 546 (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961)). In Turner, the jurors were sequestered during a three-day trial. The deputy sheriffs "drove the jurors to a restaurant for each meal, and to their lodgings each night [and] ate with them, conversed with them, and did errands for them." 379 U.S. at 468, 85 S. Ct. 546. The Supreme Court held that this arrangement constituted a close and continual association between the deputy sheriffs and the jurors. Pierce contends that his due-process rights, including his right to a fair trial, were violated because, he says, Sheriff Whittle, who Pierce claims was a material witness, had substantial association with the jurors during the trial. The Court of Criminal Appeals found that Pierce's claim was without merit because, it said 1) the facts did not support Pierce's claim that Sheriff Whittle had improper close and continual association with the jurors; 2) the record does not show that Sheriff Whittle was a key witness; and 3) Pierce presented no evidence indicating that he was actually prejudiced by any contacts between Sheriff Whittle and the jury. Judge Cobb wrote a concurring opinion in which she agreed with the State's argument that Pierce did not properly raise this issue at trial or on appeal; however, she disagreed with the rest of the main opinion. The jurors in Pierce's case were sequestered during the trial, which lasted four days for the guilt phase and one day for the sentencing phase. The jurors stayed at the Comfort Inn motel in Enterprise, which is 20 miles from the Geneva County Courthouse. The jurors ate lunch in Geneva at the Chicken Box restaurant and ate breakfast and supper in Enterprise at the Shoney's restaurant. At the Rule 32 evidentiary hearing held by the trial court, more than six years after Pierce's trial, four witnesses testified as to the extent of Sheriff Whittle's contact with the jury. The Court of Criminal Appeals found that the testimony was conflicting and, thus, that the trial court's determination as to the credibility of the evidence must be given great deference. However, we do not find the testimony to be conflicting. We find undisputed evidence indicating *609 the sheriff had close and continual contact with the jury. Dot Kirkland, the administrative assistant in the sheriff's office, was appointed as a bailiff and was responsible for the jury. Kirkland unequivocally testified that three vehicles were used to transport the jurors during the trial and that she drove her personal van while Sheriff Whittle and Chief Deputy Tice each drove a patrol car. Kirkland further testified that she, the deputy sheriff, and Sheriff Whittle accompanied the jurors to lunch. Gerald Butler, the foreman of the jury, testified that officials of the Sheriff's Department transported the jurors by cars to their motel; however, Butler did not remember if Sheriff Whittle drove a car. Butler had previously executed an affidavit stating that Sheriff Whittle would "come up to Enterprise in the mornings to make sure everything went smoothly" and that "[t]he State provided everything we needed and the Deputies and Sheriff did a good job." Robert Owens, a juror, testified that he did not remember Sheriff Whittle's driving a car to the motel in Enterprise, but remembered that Sheriff Whittle was sometimes with the jurors at lunch. Keith Brown, the third juror who testified about the jury's contact with Sheriff Whittle, testified that he remembered that Sheriff Whittle went back and forth to Enterprise with the jurors, and Brown thought that Sheriff Whittle drove one of the cars. Brown also said he remembered that Sheriff Whittle went with the jurors to eat lunch. This testimony does not appear to be conflicting. Each of the witnesses, more than six years after the trial, remembered the sheriff's having contact with the jury. Kirkland, who was in charge of the jury and who would have the most knowledge of the lodging and meal accommodations for the jury, was clear in her testimony that Sheriff Whittle drove one of the cars used to transport the jurors to their motel in Enterprise and that Sheriff Whittle accompanied the jurors to lunch each day. The testimony of the three jurors who testified at the evidentiary hearing supports Kirkland's testimony, even if these three jurors did not ride in a car driven by Sheriff Whittle. The evidence shows that Sheriff Whittle drove jurors in a patrol car 20 miles each way, to and from their motel in Enterprise, each day during the five-day trial. The evidence also indicates that Sheriff Whittle ate lunch with the jurors each day. The Court of Criminal Appeals states that all of the evidence indicates that Sheriff Whittle did not discuss the facts of the case with the jurors. However, Turner makes it clear that the question whether a witness had close and continual contact with the jury is not dependent upon whether the witness had conversations with the jurors regarding the case: 379 U.S. at 473, 85 S. Ct. 546. In State v. Kelley, 192 W.Va. 124, 451 S.E.2d 425 (1994), the Supreme Court of Appeals of West Virginia held that there was "a reasonable probability that the violation in this case contributed to the conviction," *610 even though the sheriff, who was also a witness, acted simply as a bailiff by bringing the jury in and out of the courtroom and transporting messages between the jury and the court. 192 W.Va. at 130, 451 S.E.2d at 431. In Radford v. State, 263 Ga. 47, 49, 426 S.E.2d 868, 870 (1993), the Supreme Court of Georgia held that a deputy had had "substantial and continuing contact with and authority over" the jurors, even though he did not discuss the case itself with the jurors. In Radford, the deputy's contact consisted of riding with the jurors on the bus that transported them to and from their motel and to meals, eating meals with them, and standing guard at the motel while the jurors congregated. Precedent from the Court of Criminal Appeals also supports our conclusion that Sheriff Whittle did have a constitutionally unacceptable level of contact with the jury in this case. In Yelton v. State, 50 Ala. App. 168, 170-71, 277 So. 2d 912, 915 (Crim.App.1973), the Court of Criminal Appeals held: In Miles v. State, 261 Ala. 670, 75 So. 2d 479 (1954), this Court held that a defendant was entitled to a new trial because the sheriff, a deputy sheriff, and a highway patrol officer had walked with the jury to a cafe, had eaten at the same table with the jury, and had walked back to the courthouse with the jury. The amount of contact between the law-enforcement officials and the jury in Miles is not nearly as great as that in the present case, yet this Court held that the possibility of influence exerted on the jury by those three men required a new trial. In Miles, this Court also stated that there was testimony indicating that the officers and the jury had not engaged in any conversation regarding the case; however, that fact was not dispositive. We conclude that Pierce presented evidence indicating that Sheriff Whittle had a close and continual contact with the jury, and we conclude that that evidence was sufficient to show a violation of the principle of Turner v. Louisiana. The Court of Criminal Appeals also held that the Turner principle did not apply because, it said, Pierce did not prove that Sheriff Whittle was a key witness in the case. That court based its conclusion on the proposition that Sheriff Whittle's testimony repeated the testimony of other witnesses and that, while Sheriff Whittle testified regarding a statement Pierce had made in the sheriff's presence, Pierce's own testimony at trial was consistent with his previous statements to the police and, thus, the sheriff's testimony was merely cumulative. We conclude that Sheriff Whittle was in fact a key witness for the State. He was the investigating officer in charge of the case, and he testified as to what Pierce told him during an interrogation; his involvement was similar to the involvement of the sheriff in Yelton. In Yelton, the *611 sheriff gave testimony concerning evidence he found during an investigation at the scene of the crime. He also testified as to a statement made by the defendant. Upon completion of the trial, the sheriff accompanied the jurors and talked with them during supper. The Court of Criminal Appeals stated: 50 Ala.App. at 170, 277 So. 2d at 914. Sheriff Whittle's testimony was not merely cumulative. He recounted the interrogation of Pierce, which occurred in the sheriff's own living quarters at the jail. The sheriff testified about Pierce's story regarding a man Pierce said was named Jim, who, Pierce said, forced Pierce at gunpoint to take the victim's car and who, Pierce said, killed the victim. Pierce testified at trial to these same statements. However, Sheriff Whittle also testified that in his opinion Pierce was lying when he made those statements. Defense counsel tried to elicit from the sheriff testimony indicating that Pierce was cooperative while he was in custody, but the sheriff stated that Pierce was not cooperative during his interrogation because, the sheriff said, he refused to tell the truth. The sheriff's testimony as to Pierce's demeanor during his interrogation also implied that Pierce was lying. Sheriff Whittle further testified that Pierce was the "right man" to arrest for the murder. This testimony was not cumulative as to that given by other witnesses, and it certainly qualifies as key testimony against Pierce. The prosecution's case was not overwhelming. No physical evidence at the scene connected Pierce to the murder. The police found no fingerprints or hairs belonging to Pierce in the victim's house. They also did not find any of the victim's blood, which had been splattered on the wall, on any of Pierce's clothing. Pierce's defense was that someone else committed the crime. The sheriff specifically stated that this defense was a lie. The sheriff's position as the county's head law-enforcement officer makes his testimony potentially more persuasive than that of other witnesses, particularly when he is also serving as the caretaker of the jury. The Court of Criminal Appeals also found that Pierce had not shown that he suffered any actual injury by Sheriff Whittle's alleged improper contact with the jury. Three jurors testified that the sheriff's presence, actions, and conversations did not affect their deliberations. However, Pierce need not prove he suffered actual prejudice. As the United States Supreme Court stated in Turner v. Louisiana, 379 U.S. at 473, 85 S. Ct. 546, "it would be blinking reality not to recognize the extreme prejudice inherent in this continual association throughout the trial between the jurors and ... key witnesses for the prosecution." The Court further stated: Id. at 474, 85 S. Ct. 546. The Court of Criminal Appeals, in stating that Pierce must prove actual prejudice in order to be entitled to relief under Turner, relied on the dissent in Turner. However, based on the main opinion in Turner, we conclude that close and continual contact with the jury by a sheriff who is a key witness for the prosecution is necessarily prejudicial to the defendant. Thus, we conclude that the defendant does not have to show actual prejudice. This Court had written the following even before the United States Supreme Court decided Turner: Miles v. State, 261 Ala. at 672, 75 So. 2d at 481 (quoting earlier cases). Our conclusion that Sheriff Whittle was a key witness who had improper close and continual contact with the jury is consistent with previous holdings of this Court, as well as holdings in other jurisdictions. The decisive issue in this case is whether Pierce's claim is procedurally barred under Rule 32.2(a)(3) and (5), Ala.R.Crim.P. Pierce's claim states a proper ground for relief under Rule 32.1(a) because it states a constitutional violation that would require a new trial. To be entitled to that relief, however, Pierce must avoid the preclusive effect of Rule 32.2(a)(3) and (5); those provisions bar a defendant from presenting in a Rule 32 postconviction petition a claim that could have been raised at trial or on direct appeal. Rule 32.1 provides: Rule 32.2 provides: The Court of Criminal Appeals stated that Pierce had failed to prove that his evidence regarding the sheriff's improper contact with the jury constituted newly discovered evidence; therefore, it held, the trial court correctly held this claim to be procedurally barred on the basis that it could have been raised at trial or on direct appeal. The Court of Criminal Appeals held that Pierce did not satisfy the following three of the five elements required by Rule 32.1(e), Ala. R.Crim. P.: 1) that the information was not known and could not have been discovered at the time of trial or sentencing or in time to raise it in a posttrial motion; 2) that if the information "had been known at the time of trial or of sentencing, the result probably would have been different"; and 3) that "[t]he facts establish that the [defendant] is innocent of the crime" or that he "should not have received the sentence [he] received." However, Pierce was not required to prove that this information meets the elements of "newly discovered material facts" under Rule 32.1(e). While the information about Sheriff Whittle's contacts with the jury may be "newly discovered," Pierce does not seek relief under Rule 32.1(e). Pierce does not contend that "[n]ewly discovered material facts exist which require that the conviction or sentence be vacated by the court." Rule 32.1(e). Instead, Pierce's claim fits under Rule 32.1(a): "The constitution of the United States or of the State of Alabama requires a new trial...." Rule 32.1(a) states a ground for relief distinct from that stated in Rule 32.1(e). If every defendant had to prove that the facts on which he relies for postconviction relief satisfy the elements of "newly discovered material facts" set out by Rule 32.1(e), then constitutional violations could rarely be raised in a Rule 32 petition, and Rule 32.1(a) would be superfluous for all cases except those in which the defendant could prove innocence. There is a place for this Court to review constitutional violations that could not be discovered by the date of trial or in time to be raised in a direct appeal, even if the defendant is guilty of the crime charged. Furthermore, the application of *614 the requirements of Rule 32.1(e) in cases like Pierce's would impose a nearly impossible standard on a defendant filing a Rule 32 petition. A defendant could rarely, if ever, establish, through the same facts tending to prove that the jury was prejudiced or improperly influenced, that he is innocent of the crime charged. Yet, jury prejudice or improper influence is an important issue for this Court to review. Rule 32.1(a) is the same provision that allows a defendant to raise an ineffective-assistance-of-counsel claim in a postconviction proceeding. Yet, this Court has never required a defendant alleging ineffective assistance of counsel to meet the elements stated in Rule 32.1(e), particularly the Rule 32.1(e)(5) requirement of showing facts establishing that the defendant is innocent of the crime. Almost never could a defendant meet the requirement of showing that his evidence proving ineffective assistance also proves his innocence. Although Rule 32.1(e) does not preclude Pierce's claim, Rule 32.2(a)(3) and (5) would preclude Pierce's claim if it could have been raised at trial or on appeal. Pierce argues that his trial counsel could not have known about the sheriff's improper close and continual contact with the jury. Thus, Pierce argues, 1) counsel had no basis for objecting at trial to that contact and 2) because counsel could not object at trial, the record contained no basis upon which to raise the issue on direct appeal from his conviction. The trial judge made comments during the trial indicating that the sheriff would be making arrangements for the jury's hotel stay and for their meals. Specifically, while explaining the sequestration process to the jury, the trial court stated: "Sheriff, where are they staying?" Sheriff Whittle replied: "They are staying at Enterprise at the Comfort Inn." The trial court then stated: "The sheriff will be able to explain that to you and arrangements will be made for you to get to Enterprise to the Comfort Inn." During the trial, the court stated to the jury: "If you will go back with the bailiff, the sheriff will make arrangements for you to get to the motel." The trial court also explained the arrangements for lunch: "If the jury will go back with the bailiff, the Sheriff's Department will make arrangements for you to eat lunch." The Court of Criminal Appeals held that Pierce should have objected after hearing these statements. However, we do not think these comments were enough to put trial counsel on notice that the sheriff would personally be driving the jurors to their hotel and would be attending meals with them. Pursuant to Ala.Code 1975, § 12-16-10, "it is the duty of the sheriff... to provide for the jurors and the bailiffs or deputy sheriffs in charge of or attending said jury suitable lodging and meals." The comments made by the trial court do nothing more than indicate that the sheriff was responsible for ensuring that these duties were carried out; they do not indicate that the sheriff himself would personally perform them. The State argues that in order for Pierce to prove that he could not have raised the issue at trial or on direct appeal (as required by Rule 32.2(a)(3) and (5)), he must prove the elements of "newly discovered material facts" stated in Rule 32.1(e), including the requirement that the facts prove his innocence. We disagree. As previously stated, because Pierce's claim falls under Rule 32.1(a), rather than Rule 32.1(e), the elements of Rule 32.1(e) do not apply. A requirement that a defendant prove those elements would create a nearly impossible standard. Instead, Pierce need only show that his claim could not have been raised at trial or on direct appeal. *615 The State contends that Pierce failed to carry his burden of proving that this claim was not procedurally barred. The State argues that at the evidentiary hearing Pierce failed to present evidence indicating that his trial counsel did not know these facts at trial and could not have discovered them in time to raise an objection during trial, in a posttrial motion, or on direct appeal. This case is in an unusual procedural posture. The record indicates that after Pierce filed his Rule 32 petition, the State filed an answer and a "Motion for Partial Dismissal." Pierce's claim regarding improper juror contact with witnesses was encompassed in "Claim F" of the petition. In the "Motion for Partial Dismissal," the State argued that Claim F, which the State described as "juror misconduct" and which encompassed other claims involving the jurors, was procedurally barred by Rule 32.2(a)(2), (a)(3), and (a)(5). The record indicates that the court held a hearing on the "Motion for Partial Dismissal." This hearing was not transcribed and was the subject of a "Motion to Supplement the Record" filed by Pierce. According to the record, that hearing was tape recorded, but the tape recording could not be found. Pierce and the State entered into a stipulation of facts; that stipulation indicates that at the hearing on the "Motion for Partial Dismissal," the State argued: "[C]ertain claims in the petition should be dismissed pursuant to the procedural bars found in Rule 32.2(a) of the Alabama Rules of Criminal Procedure. The specific claims and the procedural bars that the State of Alabama argued should apply are set forth in the Motion for Partial Dismissal." According to the stipulation of facts, Pierce's counsel "then argued against the State's Motion for Partial Dismissal." The trial court entered an order dated February 13, 1996, stating that it had considered the State's "Motion for Partial Dismissal," and ordering: Pierce's claim of improper jury contact was one of the "remaining claims" the trial judge mentioned in paragraph 2 of his order. Thus, it appears from the record that the trial court considered arguments as to whether Pierce's claim regarding the sheriff's improper contact with the jury was procedurally barred by Rule 32.2(a) and determined that it was not. At the subsequent Rule 32 evidentiary hearing, Pierce presented evidence only on the merits of the claim and did not present evidence regarding whether the claim could have been raised at trial or on appeal. Pierce contends that that issue had been argued and decided at the hearing on the State's "Motion for Partial Dismissal." However, after the Rule 32 evidentiary hearing, the trial court entered an order holding that Pierce's claim regarding the sheriff's improper contact with the jury was in fact procedurally barred because it could have been raised at trial and on appeal but was not. The procedural posture of this case causes us to ask the following questions: Did the trial court address Pierce's procedural compliance with respect to this particular claim? If so, why did it not dismiss this claim along with the other claims? If the trial court did not address the procedural aspect, why would the trial judge hold a hearing on the substance of the claim, with witnesses being called, only to *616 later rule that the claim was procedurally barred? Did the trial judge consider the hearing to be an examination of the procedural posture of this case? Would Pierce have known that he should present evidence as to the procedural status of this particular claim when the trial judge had, to all appearances, finalized the procedural issues with respect to that claim, as it had with respect to all other claims? Did the trial judge, in fact, determine that Pierce's trial counsel should have known, or did know, that the sheriff would have extensive contact with the jury? This Court would like to know whether the trial court would hold this claim barred after Pierce had been given notice that he must present evidence as to his procedural compliance. If he can show to the trial court that he complied procedurally with respect to this particular claim, this Court would then like to know whether the trial court in fact finds that Pierce's attorney did know or should have known of the sheriff's contact with the jury during the trial. Pierce contends that he could not have raised the issue at trial or on appeal because his trial counsel could not have known who was accompanying the jurors to their hotel and to meals. The sheriff did not act as the official bailiff in the courtroom. The official bailiffs did not act as witnesses in the case and would have been, therefore, unobjectionable as escorts for the jury. The sheriff attended to the jurors outside the courtroom, where trial counsel had no opportunity to view his close and continual contact. When Pierce filed his Rule 32 petition, he was relying on the Court of Criminal Appeals' opinion in State v. Freeman, 605 So. 2d 1258 (Ala.Crim.App.1992), which held that a Rule 32 petitioner's claim alleging a juror's misconduct in failing to truthfully answer questions on voir dire examination was not procedurally barred by Rule 32.2, where defense counsel was not aware of the juror's failure to truthfully answer until one week before the court conducted the evidentiary hearing on the defendant's Rule 32 petition.[1] In Freeman, the defendant's counsel uncovered the information during juror interviews. Thus, the Court of Criminal Appeals held that the issue was not procedurally barred because "the fact that the juror had been a policeman [that fact was the information withheld] was not known at the time of trial or at the time of direct appeal." 605 So. 2d at 1259. Similarly, in Pierce's case, during postconviction investigation, Pierce's current counsel interviewed jurors and discovered the improper contact Sheriff Whittle had had with the jurors. Based on the Court of Criminal Appeals' opinion in Freeman, Pierce's claim was cognizable as long as he established that the information was not known, and could not reasonably have been discovered, at trial or in time to raise the issue in a motion for new trial or on appeal. Pierce argued to the trial court, in his response to the State's contention that the issue was procedurally barred, that, on the authority of Freeman, the issue could not be barred, because the information was not available to trial counsel and could not have been obtained at the time of the trial. However, what is unclear from the record is whether Pierce met his burden under Rule 32.3 of disproving the existence of the ground of preclusion by a preponderance of the evidence. Because the hearing at which the trial court heard evidence regarding *617 the grounds of preclusion was not transcribed, we cannot say whether this burden was met. The trial court's order following that hearing indicates that Pierce had proved that his claim was not procedurally barred. The trial court's order following the Rule 32 evidentiary hearing indicates otherwise. The ambiguity of these two orders creates a question in this Court's mind as to whether Pierce had the opportunity to adequately present evidence showing he had met his burden under Rule 32.3. For these reasons, we remand this case for the Court of Criminal Appeals to remand to the trial court for an evidentiary hearing on the question whether Pierce's claim could have been raised at trial or on appeal and is thus barred pursuant to Rule 32.2(a)(3) or (a)(5). The trial court shall file a return to the remand within 60 days; the return shall include a transcript of the proceedings conducted and the trial court's findings of fact and conclusions of law. The Court of Criminal Appeals shall transmit that return to this Court. Finally, Pierce argues, in the alternative, that his trial counsel was ineffective for not objecting to the sheriff's close and continual contact with the jury. From the record before us, it does not appear that Pierce's trial counsel had information from which he should have known the extent of the sheriff's contact with the jury. The simple fact that counsel knew that the Sheriff's Department was responsible, by statute and at the direction of the trial court, for "making arrangements" for the jury's needs does not mean that counsel should have known that the sheriff would be personally driving the jurors and accompanying them to lunch. However, the evidentiary hearing held on remand should indicate whether trial counsel knew or should have known about the sheriff's contact with the jury. Therefore, we do not foreclose the possibility that Pierce may have a cognizable claim for ineffective assistance of counsel. APPLICATION GRANTED; OPINION OF MAY 26, 2000, WITHDRAWN; OPINION SUBSTITUTED; REMANDED WITH INSTRUCTIONS. HOUSTON, COOK, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. MADDOX, J., concurs in the result. SEE, J., concurs in granting the application for rehearing; and concurs in part, concurs in the result in part, and dissents in part. BROWN, J.,[*] recuses herself. SEE, Justice (concurring in the order granting the application for rehearing; concurring in part; concurring in the result in part; and dissenting in part). I concur in the order granting the application for rehearing. However, I disagree with the conclusion that "Sheriff Whittle was a key witness who had improper close and continual contact with the jury." 851 So. 2d at 612. Thus, I dissent from Part I. I concur in Part II., and I concur in the result to remand the case with instructions. [1] After the trial court held its hearing on Pierce's Rule 32 petition, the Court of Criminal Appeals overruled its holding in Freeman. It did that in Brown v. State, 807 So. 2d 1 (Ala.Crim.App.1999), a case in which this Court has granted certiorari review (docket no. 1990344). [*] Justice Brown was a member of the Court of Criminal Appeals when that Court considered this case.

September 1, 2000

8e62358d-a4b3-4392-9650-c1e33212efc3

Ex Parte Warren

783 So. 2d 86

1980792

Alabama

Alabama Supreme Court

783 So. 2d 86 (2000) Ex parte George Ester WARREN, Jr. (In re George Ester Warren, Jr. v. State.) 1980792. Supreme Court of Alabama. September 8, 2000. *87 Margaret Y. Brown, Auburn, for petitioner. Bill Pryor, atty. gen., and Beth Slate Poe, asst. atty. gen., for respondent. LYONS, Justice. A jury convicted George Ester Warren, Jr., of possession of cocaine, in violation of § 13A-12-212, Ala.Code 1975. The trial court sentenced Warren to eight years' imprisonment. Warren appealed to the Court of Criminal Appeals. On appeal, he argued that the cocaine, which had been contained in a small plastic container in his pants pocket, was seized in violation of his rights guaranteed by the Fourth Amendment to the United States Constitution and, therefore, that the trial court erred in denying his motion to suppress the cocaine evidence. The Court of Criminal Appeals affirmed. Warren v. State, 783 So. 2d 74 (Ala.Crim.App.1998). This Court granted certiorari review to determine whether the Court of Criminal Appeals erred in holding that the trial court had properly denied Warren's motion to suppress. We reverse and remand. John Toney, a captain in the narcotics division of the Opelika Police Department, testified that on the afternoon of August 14, 1996, he received a telephone call from a confidential informant. Toney stated that he not only recognized the informant's voice, but also recognized the telephone number that was shown on a screen at his telephone. He said he had talked with the informant approximately seven or eight times in the previous six to eight weeks. On this occasion, the informant gave Toney his name. Toney testified that none of the information received previously from the informant had led to arrests, but that the informant had always offered reliable information. The informant told him, he said, that the informant was watching a group of black males standing around a white car, and that the men were buying and selling drugs. The informant provided a street address, a description of the car, and a partial license plate number of the car (all digits except the last). The informant did not, however, give any physical description of the men standing around the car, except to say that there were approximately four or five of them, that they were black, and that they looked like the "usual drug dealers." *88 Within five minutes, Toney relayed the information to Detective Greg Wilson, a plainclothes detective in the narcotics division. Toney instructed Wilson to proceed to the scene to investigate. Wilson, accompanied by two other detectives, drove to the scene in an unmarked police car. Wilson testified that when he got to the address given by the informant, he saw several black males standing around a white car that matched the description and that had a license plate with a number that matched the partial tag number given by the informant. Wilson radioed for assistance, he said, and then he and the other two detectives got out of their car and approached the men standing around the white car. Wilson said that he and the other detectives identified themselves as police officers and began "field interviews" of the men, which consisted of asking their names and asking to see their identification. Warren was one of the men standing around the car, and he cooperated with the officers' requests. At that point, an additional police officer arrived in response to Wilson's request for assistance. The officers then decided to pat the men down for weapons. Wilson testified that the purpose of the patdown was "[t]o look for weapons or anything that could be used to harm one of the officers or detectives that were there at the scene," and that to conduct a patdown was standard procedure in this kind of situation. Warren contends that he was patted down by one officer, who, he says, found no weapons on his person; then, he says, Wilson proceeded to pat him down for weapons a second time. Both Wilson and Officer Gary Jernigan testified, however, that Jernigan began the patdown of Warren, that Wilson joined him, and that together they completed the patdown of Warren. Wilson testified that during the patdown, he felt what he described as a "plastic box" in Warren's front pants pocket, and, he said, he removed it. When asked why he did so, Wilson replied: The "plastic box" was, in fact, a container ordinarily used to hold breath mints known as "Tic Tacs." The Tic Tac box in Warren's pocket, however, contained several small rocks that Wilson said appeared to be crack cocaine. The forensics report confirmed that the small rocks were crack cocaine. Although Wilson testified that he and his fellow officers conducted the patdowns for safety reasons to search for weapons, he said that he reached into Warren's pocket to retrieve the Tic Tac box not because he thought it was a weapon, but because he thought it contained drugs: Wilson also testified that in his best judgment, during approximately 50 patdowns he had conducted during his 16 months as a narcotics officer, he had felt and removed similar plastic containers four or five times during similar searches. In response *89 to a question by Warren's attorney, he said that he had not found candy in any of the boxes, but he never said how many of the boxes he had felt and removed had contained illegal narcotics. Warren argues, as he did before the Court of Criminal Appeals, that the police officers who searched and arrested him had received information from an unreliable informant and, therefore, lacked the reasonable suspicion required under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), to justify the initial investigative stop; and that Wilson exceeded the scope of a permissible Terry search when he retrieved the Tic Tac box from Warren's pocket during the patdown. The Court of Criminal Appeals held (1) that "the facts of this case created a reasonable suspicion that justified the investigatory stop of Warren, based on the information received from the informant and the independent police verification of [that] information" (783 So.2d at 79-80); (2) that "it was reasonably prudent for Detective Wilson to initiate the protective patdown of Warren" (783 So.2d at 81); (3) that "Detective Wilson's intrusion into Warren's pocket to retrieve the container fell outside the purpose of the protective patdown authorized by Terry" (783 So.2d at 82); and (4) that Wilson's seizure of the Tic Tac box was nevertheless justified on a different basis, i.e., the "plain-feel doctrine" announced by the United States Supreme Court in Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). We agree with the Court of Criminal Appeals as to these first three holdings, and we see no need for any further discussion here of the issues to which those holdings related. We cannot agree, however, that Wilson's seizure of the Tic Tac box was justified by the plain-feel doctrine. In Dickerson, the Supreme Court held that if a police officer detects contraband during a valid Terry patdown search, the officer may seize the contraband and it may be admitted into evidence. In stating the plain-feel doctrine, the Court rejected the contention that "plain feel" is not comparable to "plain view": 508 U.S. at 375-76, 113 S. Ct. 2130 (footnotes omitted). The Court of Criminal Appeals has adopted the plain-feel doctrine in Alabama. See Huffman v. State, 651 So. 2d 78 (Ala.Crim.App.1994) (holding that an officer had not exceeded the scope of Terry when, during a patdown, he recognized without any further examination that he felt a lump that had the configuration of a crack-cocaine rock); and Allen v. State, 689 So. 2d 212 (Ala.Crim.App.1995) (holding *90 that an officer had not exceeded the scope of Terry when he retrieved an envelope of marijuana that he simultaneously realized was not a weapon but recognized as an envelope containing marijuana).[1] Dickerson establishes three prerequisites for a police officer's seizure of contraband pursuant to the plain-feel doctrine: 1. The officer must have a valid reason for the search, i.e., the patdown search must be permissible under Terry. 2. The officer must detect the contraband while the Terry search for weapons legitimately and reasonably is in progress. 3. The incriminating nature of the object detected by the officer's touch must be immediately apparent to the officer so that before seizing it the officer has probable cause to believe the object is contraband. The first two prerequisites are met in this case. The Court of Criminal Appeals concluded, and we agree, that Wilson was conducting a permissible Terry search that legitimately and reasonably was still in progress when he detected the Tic Tac box in Warren's pocket. The difficulty in this case is deciding whether it is possible for a Tic Tac box to have an incriminating nature such that it was "immediately apparent" to Wilson that he had probable cause to believe before he seized it that the Tic Tac box contained contraband. The Court of Criminal Appeals concluded that Wilson had the necessary probable cause: 783 So. 2d at 85. Many of our sister states have also wrestled with the problem we address here. Can an officer's tactile perception of an object such as a Tic Tac box, a matchbox, a pill bottle, or a film canister give the officer probable cause to believe, before seizing it, that the object is contraband? As the Supreme Court of Pennsylvania stated, "[O]fficers experienced in drug enforcement have, more likely than not, seen drugs packaged in all kinds of material, ranging from cardboard to [Tic-Tac] containers to pill bottles to film canisters." Commonwealth v. Stevenson, 560 Pa. 345, 358, 744 A.2d 1261, 1268 (2000).[2] The Pennsylvania court, in holding that an officer's seizure of folded cardboard from a suspect's pocket was not made valid under *92 the plain-feel doctrine, observed that "[t]he mere fact that an officer has seen others use an object to package drugs ... does not mean that once the officer feels that object during a patdown search of a different individual, he automatically acquires probable cause to seize the object under the plain-feel doctrine as something that is `immediately apparent' as contraband." Id. The Supreme Court of Tennessee made a similar observation in State v. Bridges, 963 S.W.2d 487 (Tenn.1997):[3] 963 S.W.2d at 495 (citations omitted) (emphasis added). Federal courts also have studied this problem. In United States v. Ross, 827 F. Supp. 711 (S.D.Ala.1993), aff'd, 19 F.3d 1446 (11th Cir.1994) (table),[4] the court held *93 that an officer's discovery of a matchbox in the defendant's underwear during a patdown search did not justify the removal of the box and the seizure of cocaine in it. The court said: 827 F. Supp. at 719 (footnotes omitted) (portions of third emphasis added). There is a split of authority among the courts that have reviewed the seizure of a container such as a Tic Tac box, a matchbox, a pill bottle, or a film canister that, after being removed from the person of the suspect and examined, was found to contain contraband. A significant number of courts have held that such a seizure does not comply with the requirements of the plain-feel doctrine. See United States v. Gibson, 19 F.3d 1449 (D.C.Cir.1994) ("flat hard object" containing cocaine was seized because it did not correspond with anything officer expected to find in pants pocket; seizure held improper); United States v. Mitchell, 832 F. Supp. 1073 (N.D.Miss.1993) (court could not accept officers' testimony that contraband was "immediately apparent" upon officers' patting defendant's outer clothing; the six small plastic bags of crack cocaine had been placed in a white athletic sock that was in a brown paper sack in defendant's pocket); State v. Brown, 773 So. 2d 742 (La.App. 2000) (no weapon or contraband "immediately apparent" when officers removed brown paper bag from defendant's pocket); Commonwealth v. Guillespie, 2000 Pa.Super. 16, 745 A.2d 654 (2000) (seizure of pill bottle from defendant's pocket was unlawful because bottle was not in a suspicious location on defendant's person and did not reveal an incriminating consistency through officer's tactile sense); State v. Myers, 756 So. 2d 343 (La.App.1999) (officer's intrusion into defendant's pocket to search for what he thought was a matchbox containing cocaine did not comply with plain-feel doctrine); State v. Abrams, 322 S.C. 286, 471 S.E.2d 716 (1996) (evidence obtained by seizure of Tylenol bottle suppressed because incriminating character of the object was not immediately apparent during patdown); State v. Parker, 622 So. 2d 791 (La.App.), cert. denied, 627 So. 2d 660 (La.1993) (officer had no justification to seize matchbox from defendant's pocket and open it to search for drugs, because identity of contraband was not readily identifiable); Campbell v. State, 864 S.W.2d 223 (Tex.App.Waco 1993) (seizure, from front pocket, of film canister containing cocaine held improper). But see State v. Lee, 126 Ohio App.3d 147, 709 N.E.2d 1217, discretionary appeal not allowed, 82 Ohio St.3d 1412, 694 N.E.2d 75 (1998) (trial court erroneously concluded that officer felt only container and not *94 contraband when officer had stopped defendant in high crime area at 1:00 A.M., defendant walked away as he put something in his pocket, defendant grabbed at officer's hand during patdown, pill bottle rattled when patted, and officer said he knew pill bottles were commonly used to carry illegal drugs); State v. Rushing, 935 S.W.2d 30 (Mo.1996), cert. denied, 520 U.S. 1220, 117 S. Ct. 1713, 137 L. Ed. 2d 837 (1997) (seizure of cylindrical medicine bottle from defendant's pocket upheld; suspicious transaction had been observed, neighborhood had reputation as drug-trafficking area, and officer had knowledge about, and experience with, commonly used drug containers); Champion, 452 Mich. at 110-12, 549 N.W.2d at 858-59 (seizure of pill bottle upheldofficer with 20 years' experience in narcotics work searched defendant known to him; defendant was stopped in high-crime area; and officer discovered pill bottle in defendant's groin area[5]). Compare cases in which the officer could feel the contraband itself or could feel the contraband through packaging, e.g., United States v. Craft, 30 F.3d 1044 (8th Cir.1994) (seizure of hard, compact packages of heroin taped around defendant's ankles upheld); United States v. Hughes, 15 F.3d 798 (8th Cir.1994) (seizure of "small lumps" believed to be crack cocaine upheld); State v. Trine, 236 Conn. 216, 673 A.2d 1098 (1996) (officer who testified as to his experience with narcotics felt rock of cocaine in pocket); Andrews v. State, 221 Ga.App. 492, 471 S.E.2d 567 (1996) (officer with seven years' experience who had made thousands of arrests immediately knew object he felt was cookie of crack cocaine); People v. Mitchell, 165 Ill. 2d 211, 209 Ill.Dec. 41, 650 N.E.2d 1014 (1995) (seizure of piece of cocaine rock inside plastic "baggie" upheld); Commonwealth v. Dorsey, 439 Pa.Super. 494, 654 A.2d 1086 (1995) (seizure of lump in plastic bag upheld); State v. Wilson, 112 N.C.App. 777, 437 S.E.2d 387 (1993) (seizure of lumps in package in breast pocket upheld because the nature of the contraband was apparent); State v. Buchanan, 178 Wis.2d 441, 504 N.W.2d 400 (1993) (seizure from waistband of plastic bag containing cocaine upheld). After considering both lines of cases that have reviewed the difficult issue presented in this case, we conclude that the better-reasoned view is that espoused by those courts holding that if the object detected by the officer's touch during a Terry search is a hard-shell, closed container, then the incriminating nature of any contents of that container cannot be immediately apparent to the officer until he seizes it and opens it. In such a situation, the officer cannot satisfy the Dickerson requirement that the officer have probable cause to believe, before seizing it, that the object is contraband. Although the plain-feel doctrine has a field of operation under circumstances such as those discussed by the Court of Criminal Appeals *95 in Allen and Huffman, supra, in which the nature of the contraband itself was immediately apparent to the officer, the plain-feel doctrine does not justify Wilson's seizure of the Tic Tac box from Warren's pocket in this case.[6] The Court of Criminal Appeals erred in affirming the trial court's denial of Warren's motion to suppress. The judgment of the Court of Criminal Appeals is reversed, and the cause is remanded for an order or further proceedings consistent with this opinion. REVERSED AND REMANDED. HOUSTON, COOK, and ENGLAND, JJ., concur. JOHNSTONE, J., concurs specially. SEE, J., concurs in the result. HOOPER, C.J., and MADDOX, J., dissent. BROWN, J., recuses herself.[*] JOHNSTONE, Justice (concurring specially). I concur in the scholarly majority opinion in all respects except its supportive references to Huffman v. State, 651 So. 2d 78 (Ala.Crim.App.1994), and Allen v. State, 689 So. 2d 212 (Ala.Crim.App.1995). Huffman violates the binding precedent of Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993), but rationalizes the violation by making an illusory factual distinction. Allen, in turn, is a prime example of the abuses that can result from Huffman. Both cases encourage unconstitutional intrusions and disingenuous testimony by police officers. The majority opinion is commendable in that it obeys the paramount law proclaimed by the Fourth Amendment to the United States Constitution and Article 1, § 5, of the Constitution of Alabama of 1901, respectively, as follows: Amendment IV, Constitution of the United States. Article I, § 5, Constitution of Alabama of 1901. This paramount law prohibits a law-enforcement officer from searching a private citizen without probable cause. Any modern law-enforcement officer is perfectly able in both intellect and training to follow this law. A law-enforcement officer may encounter frustration only if he undertakes to abuse Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993), by extending what should be a minimally intrusive patdown for weapons that might *96 pose an immediate danger to an officer asking a few noncustodial questions, into a full, intimate, body-feeling search for whatever might advance the officer's investigation. A Terry patdown (by definition, without probable cause at the outset) cannot constitutionally include the groping, feeling, intrusion, and inspection permissible in searches with probable cause or searches of prisoners, including those just arrested. Allowing searches beyond constitutional limits would solve or detect some more crimes, as a number of authoritarian governments around the world have proved. Allowing searches beyond constitutional limits, however, would convert the authorities themselves from the solution into the problem, as the same authoritarian governments have likewise proved. The founders of our country opted for the balance of limited government, which has become a blessing to our citizens and a tradition revered at home and famous abroad. Limited government necessarily entails some limits on the government. SEE, Justice (concurring in the result). Based on the particular facts of this case, I agree that the seizure of the plastic box from Warren's pants pocket was unconstitutional. However, I disagree with the main opinion's apparent rationale that the seizure of all such hard containers in unconstitutional because their contents cannot be apparent until the officer seizes and opens them. In Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993), in analogizing the plain-feel doctrine to the plain-view exception to the warrant requirement, the Supreme Court of the United States made probable cause the touchstone for the warrantless seizure of an object felt during an authorized patdown. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). Probable cause is determined by the totality of the circumstances. Illinois v Gates, 462 U.S. 213, 229, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). The assessment of probable cause turns on the weighing of probabilities in particular factual context, and it requires that the collected evidence "be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." Id. at 231, 103 S. Ct. 2317 (citing United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981)); accord Allen v. State, 689 So. 2d 212, 216 (Ala.Crim.App. 1995) ("The facts giving rise to probable cause must be viewed in light of the officer's own experience and training."). The evidence in this case does not establish that Detective Wilson had probable case to believe that the plastic box in Warren's pocket contained narcotics; thus, the warrantless seizure was not justified. However, by making probable cause the focus of the plain-feel doctrine, Dickerson clearly contemplates situations in which an investigating officer would have probable cause to believe that a hard object contains illegal contraband. For example, in People v. Champion, 452 Mich. 92, 549 N.W.2d 849 (1996), cert. denied, 519 U.S. 1081, 117 S. Ct. 747 (1997), a case cited in both the majority opinion and Chief Justice Hooper's dissent, the Michigan Supreme Court held that an officer was justified in seizing a pill bottle that he felt in the defendant's groin area during a Terry frisk. The court concluded that, based on the totality of the circumstances, the officer had probable cause to believe the pill bottle contained contraband: the defendant got out of his car and walked away upon seeing the patrol car and uniformed officers, the defendant was known to have previous drug and weapons convictions, the officers were in a *97 high drug crime area, the defendant tucked his hands in the front of his sweatpants while walking away from the officers and refused to remove them after being repeatedly asked to do so, and the officer's experience in narcotics investigation made him aware that controlled substances were often carried in the type of pill bottle he felt. 452 Mich. at 111, 549 N.W.2d at 859. I agree with the Champion court's conclusion that although feeling a pill bottle, in and of itself, would not give a police officer probable cause to seize the object, the totality of the circumstances present in the Champion case provided probable cause. A per se rule like the one announced in the main opinion today will serve only to encourage the packaging and transporting of illicit drugs in hard containers, because the contents of such containers can never be "immediately apparent.' I would hold only that, under the totality of the circumstances of this case, Detective Wilson, upon feeling the Tic-Tac box in Warren's pocket, did not have probable cause to believe that that particular hard box contained illicit narcotics; therefore, Detective Wilson's seizure of that item was unconstitutional. HOOPER, Chief Justice (dissenting). I agree with Justice Maddox's dissenting opinion. I would add that the main opinion is the kind of writing that requires a police officer to have a Ph.D. in legal esoterica. Here, again, are the key facts: The police received a call from a confidential informant, who told them that a group of black males standing around a white car were buying and selling drugs. The informant provided a street address, a description of the car, and a partial license-plate number of the car (all digits but the last). Two detectives drove to the scene in an unmarked police car and found the scene as the informant had described it. The two detectives walked toward the white car and decided to patdown the men for weapons. One of the detectives felt a "plastic box" in Warren's pocket. The box turned out to be a Tic Tac box containing several small rocks of cocaine. The majority states that the seizure of this contraband cannot be justified under the "plainfeel doctrine" because the detective could not know, before seizing it, that the plastic box contained contraband. The search established that the Tic Tac box contained cocaine. We cannot continue to tie the hands of law-enforcement officers. I find two cases, one a state court case and the other a federal case, analogous to this one. In People v. Champion, 452 Mich. 92, 549 N.W.2d 849 (1996), cert. denied, 519 U.S. 1081, 117 S. Ct. 747, 136 L. Ed. 2d 685 (1997), the Michigan Supreme Court held that the officer was justified in seizing a pill bottle that he felt between the defendant's leg and groin area during a protective patdown, because the officer was patrolling a high crime area when he saw the defendant get out of a car and walk away upon seeing a patrol car and uniformed officers, the officer recognized the defendant and knew of his previous convictions for drug and weapons offenses, the defendant tucked his hands in the front of his sweatpants and refused to take them out despite repeated requests by the officer, and the officer had considerable experience in dealing with drug cases and was aware that drugs are often carried in pill bottles like the one he felt while patting down the defendant. In United States v. Salazar, 945 F.2d 47 (2d Cir.1991), a case cited in a footnote in Dickerson, supra, the United States Court of Appeals for the Second Circuit found probable cause to seize plastic vials containing crack cocaine from inside the defendant's coat pocket because drug agents *98 had received a tip from a first-time informant telling them that the defendant was selling crack cocaine from a specific address; the agents verified certain of the details of the informant's tip; the defendant appeared nervous upon seeing the agents; and, during his protective patdown of the defendant, an agent felt the "crackling of plastic" that he recognized from previous experience as plastic vials commonly used for holding crack cocaine. That court recognized that "where the officers have been informed that a given person is dealing in narcotics, and during a permissible pat-down for weapons they feel something that their experience tells them is narcotics, the pat-down gives them probable cause to search the suspect for drugs." 945 F.2d at 51. Allowing any less discretion on the part of the police would mean that we require police officers to unnaturally deny their own common sense and experience in dealing with drug suspects. It also would require them to know the most minute intricacies of arcane legal thinking that the most experienced lawyers and judges disagree about and that they be able to predict which side will win in court when the defendant appeals that particular case. I refuse to participate in such shackling of our law-enforcement personnel. The circumstances surrounding this particular patdown of Warren justified the officer's confiscation of the contraband. I would affirm the judgment of the Court of Criminal Appeals. Therefore, I must respectfully dissent. MADDOX, Justice (dissenting). I conclude that, given all the facts and circumstances the officer possessed when he seized the crack cocaine, he had sufficient probable cause to make the seizure, and I conclude that the Court of Criminal Appeals properly analyzed the facts and the applicable law and properly applied that law in this case. On the contrary, I believe that the majority incorrectly interprets the provisions of the Fourth Amendment as interpreted by the Supreme Court of the United States in Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). See, also, Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000), where the United States Supreme Court upheld a search and seizure involving illegal drugs based upon all the facts and attendant circumstances shown in that case. In Wardlow, the United States Supreme Court stated the facts as follows: 528 U.S. at 121-22, 120 S. Ct. at 674-75. The issue in Wardlow was whether Officer Nolan was justified in conducting a stop-and-frisk search of Wardlow under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The United States Supreme Court determined that he was. I believe the facts and circumstances of this case are analogous to those set out in Wardlow. Consequently, I must respectfully dissent. [1] This Court discussed the plain-feel doctrine in Ex parte James, [Ms. 1980820, June 23, 2000] ___ So.2d ___ (Ala.2000), in which we held that an officer had improperly seized marijuana cigarettes from the defendant James's pocket. Our holding in James was not based on the plain-feel doctrine, however. In James, the officer testified that as he was conducting a Terry patdown search James started to put his hand into his pants pocket. As James pulled his hand out, the officer said that he reached into James's pocket and found marijuana cigarettes. The officer testified that he did not pat the outside of James's pocket before he reached into it and that he did not feel any weapons during the patdown search. Because the officer, before he put his hand into the pocket and removed the marijuana cigarettes, did not pat down the outer surface of James's pocket to determine if a weapon was present and therefore did not feel any weapon or "plain-feel" object that would warrant further intrusion, we concluded that the plain-feel doctrine did not apply because the officer did not inadvertently discover the contraband pursuant to a Terry patdown search. [2] Stevenson arose out of suspicious circumstances, as did the case before us. An officer on patrol saw the defendant enter a residence that had been the subject of numerous complaints regarding drug activity. The officer stopped the defendant for a traffic violation. During the course of a Terry search, the officer felt three hard packages of folded paper or cardboard in the defendant's pants pocket. The court noted that "cardboard or folded paper may be in an individual's pocket for any number of legitimate reasons, and may contain, if anything at all, any number of legitimate items." 560 Pa. at 358 n. 6, 744 A.2d at 1268 n. 6. [3] In Bridges, also a case involving suspicious circumstances, the officer received a telephone call from a confidential informant, who told him that the defendant was at the time selling drugs at a club. The defendant was present at the club when the officer arrived. The officer said he frisked the defendant for weapons. During that search, the officer felt a pill bottle in the defendant's pocket. [4] In Ross, officers stopped the defendant's car after they had observed him circling a motel known to be an area of high drug trafficking. The defendant was shivering in the cold January night air, so an officer performed a Terry search so that the defendant could sit in a patrol car. During the search, the officer felt a box tucked into the defendant's groin area. The officer identified it as a hollow matchbox. He testified that he was suspicious because of the box's location in the groin area, that drug traffickers were widely known to carry drugs in that area of the body, and that it was common for drug traffickers to carry contraband in small plastic boxes, steel boxes, or matchboxes. The officer also said that approximately 50-100 times he had found contraband concealed in small matchboxes tucked in the groin area. [5] We note that Champion, relied on by Chief Justice Hooper in his dissent and by the Court of Criminal Appeals, presented a scenario factually different from that presented in the case before us. In Champion, the law-enforcement officer testified that during his patdown search, he felt "a pill bottle stuck down between [Champion's] legs." 452 Mich. at 110 n. 9, 549 N.W.2d at 858 n. 9. No comparable circumstance is here presented. In the case before us, Wilson felt the Tic Tac box in Warren's pants pocket. The dissent also relies upon United States v. Salazar, 945 F.2d 47 (2d Cir.1991), a case that was decided before Dickerson. Salazar is cited once in Dickerson as one of several cases recognizing the "plainfeel" analog to the plain-view rule announced in Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971) (opinion of Stewart, Douglas, Brennan, and Marshall, JJ.) The Court in Dickerson made no effort to harmonize or reconcile its holding there with the holdings in such cases as Salazar. [6] Chief Justice Hooper's dissenting opinion complains of "shackling of our law-enforcement personnel." 783 So. 2d at 98. The framers of both the United States Constitution and the Alabama Constitution saw fit to guarantee citizens freedom from illegal searches and seizures (see U.S. Const. amend. IV; Ala. Const. of 1901, Art. I, § 5), and we hereby enforce that guaranty today. [*] Justice Brown represented the State of Alabama in this case while she was serving as an assistant attorney general.

September 8, 2000

e6ccd43b-98e9-4211-b571-fc38057a56aa

Dennis Joslin Co., LLC v. Tate

779 So. 2d 217

1982304

Alabama

Alabama Supreme Court

779 So. 2d 217 (2000) DENNIS JOSLIN COMPANY, L.L.C. v. William A. TATE. 1982304. Supreme Court of Alabama. September 15, 2000. *218 R. Cooper Shattuck of Rosen, Cook, Sledge, Davis, Cade & Shattuck, P.A., Tuscaloosa, for appellant. Wilbor J. Hust, Jr., of Zeanah, Hust, Summerford, Davis & Williamson, Tuscaloosa, for appellee. COOK, Justice. This is a debt-collection case. The plaintiff appeals from a summary judgment in favor one of the defendants in an action to recover the principal balance the plaintiff contends is owed on a commercial loan. We reverse and remand. On September 1, 1995, AmSouth Bank sued C & W Enterprises, Inc., and C.W. Naramore to collect the principal balance of $265,472.18 owed on a commercial loan of $435,000. On October 12, 1995, AmSouth amended the complaint to add William A. Tate as a defendant; he was a *219 guarantor of the note, along with C.W. Naramore. On November 13, 1995, Am-South, C & W Enterprises, and Naramore agreed to the entry of a "consent judgment" in favor of AmSouth Bank in the amount of $275,595.84; the court entered such a judgment and certified it as final under Rule 54(b), Ala.R.Civ.P.[1] On November 18, 1998, Dennis Joslin Company, L.L.C. ("Joslin Company") was substituted as the plaintiff, based upon an assignment to it of AmSouth's rights, title, and interest in the subject matter of this case. Both the plaintiff Joslin Company and the defendant Tate moved for a summary judgment. Neither of them responded to the other's summary-judgment motion.[2] The trial court entered a summary judgment in favor of Tate.[3] Joslin Company appeals, arguing that the summary judgment for Tate was improper because, it contends, Tate did not properly support his summary-judgment motion with evidence showing that no genuine issue of material fact existed. On appeal from a summary judgment, our review is de novo. Hobson v. American Cast Iron Pipe Co., 690 So. 2d 341 (Ala.1997). The burden on a party moving for a summary judgment is clearly set out in Rule 56(c), Ala.R.Civ.P. A summary judgment should be entered only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ala.R.Civ.P. 56(c)(3). The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has satisfied its burden by making a prima facie showing that there is no genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala.1989). When ruling on a motion for summary judgment, the court should consider all evidence of record, including that evidence formally submitted in support of, or in opposition to, the motion. Speigle v. Lott, 423 So. 2d 163 (Ala.1982). Because the burden of proof is initially on the moving party, evidence received by the trial court should be construed most strongly in favor of the opposing party, and that party should be given the benefit of all favorable inferences that can be drawn from the *220 evidence. Wayne J. Griffin Elec., Inc. v. Dunn Constr. Co., 622 So. 2d 314 (Ala. 1993); Turner v. Systems Fuel, Inc., 475 So. 2d 539 (Ala.1985). Rule 56 is read in conjunction with the "substantial evidence rule," § 12-21-12, Ala.Code 1975, for actions filed after June 11, 1987. See Bass, supra. In order to defeat a properly supported motion for summary judgment, the nonmovant must present substantial evidence, i.e., "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). Because the plaintiff, Joslin Company, did not respond to Tate's summary-judgment motion and Tate did not respond to Joslin Company's summary-judgment motion, all this Court must determine is whether Tate made a prima facie showing that there was no genuine issue of material fact. We conclude that he did not. The law requires only that a party moving for a summary judgment present evidence, from whatever source, to show that there is no triable issue of fact in the case. The moving party may rely on any of the materials specified in Rule 56(c)(3) ("pleadings, depositions, answers to interrogatories, and admissions on file, [and] affidavits, if any"). In other words, a moving party "need not prove a negative in order to prevail on a motion for a summary judgment." Ex parte General Motors Corp., 769 So. 2d 903 (Ala.1999), quoting Lawson State Community College v. First Continental Leasing Corp., 529 So. 2d 926, 935 (Ala.1988). Tate did not carry his burden, imposed under Rule 56, Ala.R.Civ.P., of demonstrating that no genuine issue of material fact existed as to the claim against him. The evidence shows that Tate is named on the promissory note in question as a guarantor. The evidence is less clear on the issue of Tate's obligation to Joslin Company. A question exists as to whether AmSouth Bank assigned Joslin Company the guaranty agreement whereby Tate had guaranteed the promissory note of C.W. Naramore and Naramore Enterprises. Joslin Company argues that AmSouth Bank assigned it both the note and the guaranty agreement. The affidavit of Dennis Joslin, given by him as president of Dennis Joslin Company, L.L.C., and submitted in support of Joslin Company's motion for a summary judgment, indicates that Joslin Company purchased the "account"the notefrom AmSouth Bank and that the "account" was assigned to it on March 31, 1998. Dennis Joslin stated that he is familiar with the account of C & W Enterprises, Inc., C.W. Naramore, and William A. Tate; that the amount owed on that account was $253,628.54; and that C & W Enterprises, C.W. Naramore, and Tate had defaulted under the terms of their promissory note and guarantee with AmSouth. Tate contends that the note, but not the guaranty agreement, was assigned to Joslin Company. However, Tate submitted no evidence in the form of an affidavit or testimony to that effect in support of his motion for summary judgment.[4]*221 Therefore, a factual question exists as to whether the guaranty agreement was assigned to Joslin Company and what, if any, obligation Tate has to Joslin Company on the note. Tate failed to show that no genuine issue of material fact exists. Therefore, the summary judgment entered in favor of Tate is due to be reversed and the case remanded. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] C.W. Naramore died on December 7, 1995. [2] Rule 56(e), Ala.R.Civ.P., provides: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against him." When a party offers no evidence in response to the evidence presented in support of an opposing party's summary-judgment motion, the court must consider the movant's evidence uncontradicted; and, in such a case, a summary judgment, if warranted by that evidence, may be entered against the nonmoving party. Butler v. Michigan Mut. Ins. Co., 402 So. 2d 949 (Ala.1981). However, a lack of response by the nonmoving party will not automatically result in the entry of a summary judgment; instead, that party will risk having the motion granted against him if granting the motion is appropriate on the merits. Ex parte Oden, 617 So. 2d 1020 (Ala. 1992). [3] In its summary judgment, the trial court stated: "The plaintiff's motion for summary judgment was based on the affidavit [filed on behalf] of plaintiff, Dennis Joslin Company, and attachments to the amended complaint. After carefully reviewing the court file and amended complaint, the court finds that there were no attachments to the amended complaint. Therefore, there is no evidence before the court to support plaintiff's claim that AmSouth Bank assigned to [it] a guaranty agreement, whereby defendant, William Tate, guaranteed the promissory note of C.W. [Naramore] and [Naramore] Enterprises. Therefore, there being no dispute of a material fact, and defendant, William Tate being entitled to judgment as a matter of law, summary judgment is granted in favor of defendant William A. Tate...." [4] In his motion for summary judgment, Tate states that the consent judgment issued in favor of AmSouth Bank against C & W Enterprises and C.W. Naramore was a "final" judgment and therefore extinguishes the claim. He contends that because C & W Enterprises is no longer liable on the note and he had guaranteed the note, he too is no longer liable. Tate moved for a summary judgment, with a supporting affidavit from his lawyer that references two exhibits he submitted in support of his motion. Exhibit A is a letter from AmSouth's lawyer to Tate's lawyer concerning Tate's "desir[e] of working out a consent judgment and some payment plan...." Exhibit B consists of a file memorandum indicating the amount of the balance remaining on the loan and a memorandum by an Am-South loan officer recommending a "chargeoff" of the debt balance. A guarantor's liability is not necessarily coextensive with that of the principal debtor. Shur-Gain Feed Div. v. Huntsville Prod. Credit Ass'n, 372 So. 2d 1317 (Ala.Civ.App.1979). However, a guarantor is not discharged until payment or satisfaction of the principal debt has occurred. Id.; see 38 C.J.S. Guaranty § 77 (1943). If a principal's obligation is somehow extinguished, the guarantor in some circumstances can remain liable. See PR Leasing Co. v. Cowin Equip. Co., 611 So. 2d 232 (Ala.1992). Therefore, although a final judgment was entered on the note, a factual issue remains as to Tate's obligation to Joslin Company, if any, as guarantor of the note.

September 15, 2000

b391888c-b151-4d3f-89da-6ed54ab78619

Ex Parte Seabol

782 So. 2d 212

1981885

Alabama

Alabama Supreme Court

782 So. 2d 212 (2000) Ex parte Patrick SEABOL. (Re: Patrick Seabol v. Carl Michael Seibert et al.) 1981885. Supreme Court of Alabama. September 1, 2000. Jimmy Alexander, James M. Corder, Robert M. Baker, and Mitchell K. Shelly of Alexander, Corder, Plunk, Baker & Shelly, P.C., Athens, for petitioner. W. David Niochols and John L. Bodie of Hoover Law Center, Birmingham, for respondent Carl Michael Seibert. Brant A. Young of Cox, Young & Griffin, Florence, for respondents SunTrust Bank, Alabama, N.A., and Jack Johnson. COOK, Justice. The opinion of May 26, 2000, is withdrawn, and the following is substituted therefor. On September 17, 1996, Patrick Seabol sued Carl Michael Seibert, alleging legal-service liability pursuant to § 6-5-570, Ala.Code 1975, and seeking a sale of certain real estate for a division of the proceeds. On September 5, 1997, Seabol amended his complaint to include as defendants Suntrust Alabama[*] (formerly known as The First Bank of Florence, Alabama) and Jack Johnson and to add a third count alleging claims of fraud, fraudulent suppression, and conspiracy to defraud. Seibert, Suntrust, and Johnson each moved for a summary judgment. The trial court granted each defendant's summary-judgment motion, on the basis that the claims were barred by the statute of limitations. The Court of Civil Appeals, on March 19, 1999, affirmed, without an opinion. Seabol v. Seibert, 776 So. 2d 225 (Ala.Civ.App. 1999) (table). The materials before the trial court when it entered the defendants' summary judgments, viewed most favorably to the plaintiff, suggest the following facts. On January 21, 1988, Seabol executed and delivered a promissory note to Suntrust in the amount of $50,000. The note was secured by a real-estate mortgage, which encumbered six acres of land in Florence. On January 29, 1988, eight days after Seabol had executed the promissory note, Suntrust advanced Seabol $25,000. Suntrust advanced money again on June 17, 1988, in the amount of $5,000. From August 5, 1988, through June 15, 1990, Suntrust advanced Seabol, in a number of transactions, a total of $45,430.67. The mortgage and promissory note to Suntrust were for $50,000 and contained no provision to secure future advances. Therefore, the mortgage did not constitute a valid lien on the six acres of land with regard to any of the future advances. In March 1993, Seabol contacted Seibert, an attorney, for information on how to delay Suntrust's threatened foreclosure on the six acres pursuant to the January 21, 1988, mortgage. Seibert never informed Seabol of the possibility that the lien could be invalid. On March 22, 1988, Seibert prepared and filed for Seabol a voluntary petition for Chapter 13 bankruptcy. The Chapter 13 petition listed the six acres as having a collateral value of $200,000. Seabol alleges that Seibert forged Seabol's signature on three of the supporting documents filed with the bankruptcy petition. While the bankruptcy proceedings were pending, Seibert told Seabol that Suntrust could immediately foreclose on the six acres and that he, Seibert, was willing to buy the land. Seibert agreed to pay $95,000, and Seabol stopped looking for other potential buyers. Two weeks later, Seibert told Seabol that he could only pay $75,000, but that Seabol needed to do something with the land immediately; otherwise, Seibert told him, he could lose everything. Seibert arranged to meet with Seabol and Jack Johnson (a banker with Suntrust) at a Suntrust office on July 22, 1993. At that meeting, Seibert told Seabol that he would pay for the six acres only the amount of the outstanding promissory note and mortgage (approximately $50,000). *214 Seabol objected to the change in price, but Seibert stated that Suntrust could foreclose on the mortgage immediately, and, therefore, that Seabol really had no choice but to sell the six acres to him. Seabol sold him the six acres for $50,000. Seibert sold the six acres, in December 1993, for $129,000. Seibert never disclosed to the bankruptcy court that he was negotiating with Seabol to buy the six acres. Seabol's bankruptcy proceedings did not close until August 24, 1993. Seabol claims that Seibert, Johnson, and Suntrust knew at the time of the sale that the mortgage was invalid, but fraudulently represented to him that the mortgage did constitute a valid lien that could be immediately enforced. Seabol's claim against Seibert comes within the definition of "legal service liability action" provided in § 6-5-572(1), Ala. Code 1975: The limitations period for any action coming within the definition provided in § 6-5-572(1) is prescribed by § 6-5-574(a): Under § 6-5-574, "a legal-malpractice cause of action accrues, and the statute-of-limitations period begins to run, when `the act or omission or failure giving rise to the claim' occurs, and not when the client first suffers actual damage." Ex parte Panell, 756 So. 2d 862, 868 (Ala.1999). Thus, the running of the limitations period is tolled until the client discovers, or reasonably should discover, the attorney's act or omission or failure. Section 6-5-574(a) further provides that any action filed beyond the two-year limit "must be filed within four years of the wrongful act or omission, regardless of whether the client has suffered damage." Ex parte Panell, 756 So. 2d at 867. Therefore, Seabol, at the most, had four years in which to file his claim against Seibert. In Leighton Avenue Office Plaza, Ltd. v. Campbell, 584 So. 2d 1340 (Ala.1991), this Court stated: 584 So. 2d at 1344. Seabol's first contact with Seibert came in March 1993. He filed his claim against Seibert in September 1996, within the four-year limit. We must determine, then, whether Seabol filed his claim within six months from the date he discovered or should have discovered his attorney's fraudulent misrepresentations. Seabol argues that he did not discover that under Alabama law his mortgage was invalid and did not constitute a valid lien against the six acres until he met with a second attorney, on August 22, 1996. Seibert argues that Seabol had knowledge of facts or discovered facts no later than 1993 that should have alerted him that his mortgage was or could have been invalid. Seabol is licensed as a real-estate agent in both Alabama and California; Seibert contends that Seabol therefore should have discovered the invalidity of the mortgage within the two-year limitations period. In reviewing a summary judgment, this Court must look to see if the evidence presents a dispute as to some material fact, and, if it does, then "this Court must review the record in the light most favorable to [the nonmoving party]." Ex parte Panell, 756 So. 2d at 863. Because it was Seibert who moved for a summary judgment, this Court must look at the evidence in the light most favorable to Seabol. The burden is Seabol's "to present substantial evidence creating a genuine issue of material fact," and "[e]vidence is `substantial' if it is of `such weight and quality that fairminded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.'" Ex parte Panell, 756 So. 2d at 863 (quoting West v. Founders Life Assurance Co., 547 So. 2d 870, 871 (Ala.1989)). Seabol claims that he did not have specific knowledge of Alabama law and therefore relied on his attorney, Seibert, to be honest and truthful when giving him legal advice. He further claims that he had no reason to question the validity of the mortgage until he spoke with another attorney in 1996. Seibert argues that Seabol had had extensive experience with buying and selling real estate. Therefore, Seibert says, Seabol should have been able to read and deduce from the mortgage that it did not secure any future advances. However, Seibert produced no evidence indicating that Seabol had previously been involved in foreclosure proceedings. No evidence in the record indicates that any of the properties Seabol had bought and sold before he sold the six acres at issue in this *216 case were ever subject to foreclosure. Thus, the evidence does not indicate that, before this present transaction, Seabol had been faced with the question whether a mortgage lien was valid or invalid. Furthermore, Seabol had a copy of the promissory note that promised payment of the future advances. The note clearly indicates that it is secured by a mortgage. Seabol could have reasonably assumed that the promissory note was sufficient to secure the mortgage lien. Looking at the evidence in the light most favorable to Seabol, we conclude that he presented substantial evidence from which a jury could have found that he did not know, and could not have known, until 1996, of Seibert's wrongful acts or omissions. Therefore, the summary judgment was improper as to the claim against Seibert. Seabol's fraud and suppression claims against Suntrust and Johnson are subject to the two-year statute of limitations, § 6-2-38(l), Ala.Code 1975. That statute of limitations is subject to the "saving clause" provided by § 6-2-3: "The question of when a party discovered or should have discovered the fraud is generally one for the jury." Liberty Nat'l Life Ins. Co. v. Parker, 703 So. 2d 307, 308 (Ala.1997). Suntrust and Johnson argue that Seabol had sufficient facts to put a reasonable person on notice of a possible fraud, because he had had knowledge of, and direct experience with, real-estate transactions and had had possession of a copy of the mortgage. In Foremost Insurance Co. v. Parham, 693 So. 2d 409 (Ala.1997), this Court returned to the "reasonable-reliance" standard (for "all fraud cases filed after the date of [the Foremost] decision, i.e., all cases filed after March 14, 1997"), stating: 693 So. 2d at 421 (referring to Hickox v. Stover, 551 So. 2d 259 (Ala.1989)). Seabol amended his complaint to add claims against Suntrust and Johnson in September 1997; thus, the rule established in Foremost applies in this case. In Foremost, this Court held that, under the reasonable-reliance standard, the plaintiffs' claims alleging fraud would have been barred by the statute of limitations because the plaintiffs had had access to all the pertinent insurance documents at issue and, had they chosen to do so, could have easily read the insurance documents and determined the full extent of their insurance coverage. 693 So. 2d at 422. The plaintiffs' failure to read the insurance documents would not have tolled the running of the limitations period, under the reasonable-reliance standard. Id. In the present case, the documents at issue are not as easily understood. The mortgage did not in any way refer to future advances of money, and the note promising to pay the future advances indicated that it was secured by a mortgage. Therefore, it would be difficult for Seabol to deduce, simply by reading the mortgage *217 and the promissory note, that the mortgage did not constitute a valid lien against the six acres of property. Even though Seabol had knowledge of real-estate transactions and had possession of copies of the mortgage papers, a jury, taking Seabol to be a reasonable realtor, could find that his reliance on the oral representations of his attorney and his banker was reasonable. Therefore, the summary judgment was improper as to Seabol's fraud and suppression claims against Suntrust and Johnson. The judgment of the Court of Civil Appeals is reversed, and the cause is remanded. OPINION OF MAY 26, 2000, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, JOHNSTONE, and ENGLAND, JJ., concur. LYONS and BROWN, JJ., concur to overrule the application for rehearing and concur in the result as to the substituted opinion. HOUSTON and SEE, JJ., concur in part and dissent in part. HOUSTON, Justice (concurring in part and dissenting in part). I agree that the summary judgment was improper as to Seibert. When this case was originally before us, I was led to believe that the claims against Suntrust and Johnson were filed in September 1996, during the period when this Court was applying the "justifiable-reliance" standard established by Hicks v. Globe Life & Accident Ins. Co., 584 So. 2d 458 (Ala.1991), as the standard for determining whether a fraud cause of action was barred by the statute of limitations. In Foremost Insurance Co. v. Parham, 693 So. 2d 409 (Ala.1997), this Court returned to the "reasonable-reliance" concept for determining statute-of-limitations questions in fraud cases. There is a substantial difference between "reasonable reliance" and "justifiable reliance." When this Court issued its original opinion on May 26, 2000, I concurred in the holding that a jury could find that Seabol had "justifiably" relied on oral representations of his attorney and his bankerbut I was erroneously thinking the "justifiable-reliance" standard applied. Now that I know that the claims against Suntrust and Johnson were added in September 1997 and that the relationship between Seabol and Johnson and Suntrust is therefore governed by the "reasonable-reliance" standard, I dissent from the holding as to the defendants Johnson and Suntrust. SEE, Justice (concurring in part and dissenting in part). I concur in Part I; I agree that the summary judgment was improper as to Seibert. However, for the reasons stated by Justice Houston in his special writing, I dissent from Part II, which holds that a jury could find that Seabol's reliance on the oral representations of his attorney and banker was reasonable. [*] Note from the reporter of decisions: In the materials filed in the Supreme Court, this party's name is spelled in several different ways, e.g., SunTrust Bank, Alabama, N.A.; Sun Trust Alabama, N.A.; SunTrust, Alabama, N.A.; Suntrust Bank, Alabama, N.A.; and Sun-Trust Bank of Alabama, N.A.

September 1, 2000

68c651c0-2791-4e8b-8007-a4b5c104da6c

ICU Investigations, Inc. v. Jones

780 So. 2d 685

1981714

Alabama

Alabama Supreme Court

780 So. 2d 685 (2000) I.C.U. INVESTIGATIONS, INC. v. Charles R. JONES. 1981714. Supreme Court of Alabama. June 30, 2000. Order Overruling Rehearing September 1, 2000. *687 Jack R. Thompson, Jr., of Kracke, Thompson & Ellis, P.C., Birmingham, for appellant. Lister H. Proctor and J. Bradley Proctor of Proctor & Vaughn, Sylacauga, for appellee. BROWN, Justice. A jury found in favor of Charles R. Jones on his invasion-of-privacy claim, awarding him $100,000 against the defendant I.C.U. Investigations, Inc. ("ICU"). ICU appeals, arguing that the court erred in denying its motion for a judgment as a matter of law on that claim. Jones was employed by Alabama Power Company ("APCo") as a groundman and winch-truck driver. While working on February 26, 1990, he suffered an electric shock and fell from the bed of the truck, dislocating and fracturing his left shoulder. Following his injury, he underwent five operations for problems with his shoulder, neck, back, and ribs. Jones sued APCo for workers' compensation benefits; APCo disputed the extent of his disability. In preparation for the workers' compensation trial, APCo hired ICU, an investigation firm, to watch Jones's daily activities. ICU was owned and operated by Kevin Hand. Hand and another investigator for ICU, Johnson Brown, went to Clay County to monitor Jones's activities. ICU investigated Jones for 11 or 12 days during February and March 1998.[1] Jones lived in a mobile home at the intersection of Highway 77 and County Road 79; the front of his residence faced County Road 79. Jones testified that his mobile home was approximately 200 yards from Highway 77 and a "lot closer" to County Road 79. The front yard was visible from both Highway 77 and County Road 79. When watching Jones at his home, Hand would videotape from a motor vehicle parked on the shoulder of Highway 77 or County Road 79.[2] Neither Hand nor Brown entered onto Jones's property. When Hand or Brown recorded Jones's activities in the nearby town of Wadley, they filmed from a vehicle parked on a public street or in a parking lot. On at least four occasions, Hand taped Jones urinating in his front yard. Hand testified that when he videotaped Jones's activities, he often watched with his naked eye; thus, he said only once had he suspected that Jones was urinating. At the end of each day's surveillance or soon *688 thereafter, Hand copied the tapes and sent the copies to APCo's attorney. When Jones learned that Hand had videotaped him urinating in his yard, Jones filed another lawsuit against APCo, adding as defendants ICU and Hand. He alleged that APCo and ICU had been negligent or wanton in hiring and supervising their employees, and he alleged that all three defendants had invaded his privacy. APCo, ICU, and Hand each moved for a summary judgment. The court granted APCo's motion, but denied ICU and Hand's motions. Jones later dismissed Hand. After Jones rested his case, ICU moved for a judgment as a matter of law ("JML") on the invasion-of-privacy claim. The trial court denied the motion. ICU renewed its motion for a JML at the close of all the evidence. The motion was again denied. At the close of all the evidence, the judge, the jury, and the attorneys for each side visited Jones's property to view the location of the videotaping; they then returned to the courtroom for closing arguments and the trial judge's oral charge. The trial court submitted only the invasion-of-privacy claim to the jury. The jury returned a verdict in favor of Jones on the invasion-of-privacy claim, awarding him $75,000 in compensatory damages and $25,000 in punitive damages. On March 3, 1999, ICU filed a renewed motion for a JML, or, in the alternative, for a new trial or an order requiring a remittitur. The trial court did not rule on the motion, and the motion was denied by operation of law, Rule 59.1, Ala. R. Civ. P. ICU argues that the court erred in denying its motion for a JML on Jones's invasion-of-privacy claim. We have stated, in regard to review of a motion for a JML and a renewed motion for a JML: Delchamps, Inc. v. Bryant, 738 So. 2d 824, 830-31 (Ala.1999). In Johnson v. Corporate Special Services, Inc., 602 So. 2d 385 (Ala. 1992), this Court addressed the law applicable to invasion-of-privacy claims: "See Hogin v. Cottingham, 533 So. 2d 525, 528 (Ala.1988). 602 So. 2d at 387. Like Johnson, this case requires that we first determine the purpose for the investigation and whether "`[t]he thing into which there is intrusion or prying [is], and [is] entitled to be, private.'" Hogin, 533 So. 2d at 531 (quoting W. Prosser & W. Keeton, The Law of Torts 855 (5th ed.1984)). In Alabama Electric Co-operative, Inc. v. Partridge, 284 Ala. 442, 445, 225 So. 2d 848, 851 (1969), this Court noted, with approval, that plaintiffs making personal-injury claims "`must expect reasonable inquiry and investigation to be made of [their] claim[s] and [that] to this extent [their] interest in privacy is circumscribed.'" The key issue in Jones's workers' compensation case was the extent of his injury. Jones, therefore, should have expected a reasonable investigation regarding his physical capacity. In fact, Jones testified that he was aware that APCo might investigate the validity of his workers' compensation claim and that the investigation might involve surveillance. We conclude that the purpose for the investigation was legitimate; thus, we must consider whether the means used in the investigation was offensive or objectionable. Johnson, 602 So. 2d at 387. Hand watched Jones and taped his activities while Jones was outside his home, in his front yard, where he was exposed to public view. Indeed, Jones's front yard was located at the intersection of two public roads. At no time did Hand enter or tape activities conducted inside Jones's own home. Because the activities Jones carried on in his front yard could have been observed by any passerby, we conclude *690 that any intrusion by ICU into Jones's privacy was not "wrongful" and, therefore, was not actionable. The trial court should have granted ICU's motion for a JML on Jones's invasion-of-privacy claim. The judgment is reversed and a judgment is rendered for the defendant ICU. REVERSED AND JUDGMENT RENDERED. HOOPER, C.J., and MADDOX, HOUSTON, SEE, and LYONS, JJ., concur. COOK, JOHNSTONE, and ENGLAND, JJ., dissent. COOK, Justice (dissenting). I respectfully dissent from the majority's holding that the intrusion by I.C.U. Investigations, Inc. ("ICU"), into Jones's privacy was not "wrongful" and, therefore, not actionable. Jones lives in a mobile home on 41 acres of land, his only neighbor living 250 yards away. ICU's employee, Hand, was told to videotape Jones doing activities, with the tape to be used as evidence against Jones at his workers' compensation trial. However, Hand videotaped Jones urinating in his front yard and submitted the tape to the lawyer for Alabama Power Company, Jones's employer. Clearly, a videotape of Jones urinating in his yard served no legitimate purpose in Jones's workers' compensation case. Although Jones was in his front yard, the matter was clearly personal in nature. Although the evidence was undisputed that Jones was urinating in his front yard, I conclude that, given the distance from the highway, and the layout of his property, a disputed issue existed as to whether Jones's activities were public. In addition, a factual issue existed as to whether the means used to videotape Jones was improper, offensive, and unreasonable. The trial court and the jury reviewed the videotapes and went to the scene where the video was filmed. The trial court and the jury inspected the property and the area where Hand testified that he was positioned when he filmed the video. The jury could have determined that Hand was in fact not on public property when he videotaped Jones conducting an act that Jones intended to be private. Because a factual question existed as to whether the means used was unreasonable, offensive, or improper, the trial court properly submitted the claim to the jury. Apparently, after viewing the scene, the jury found the means used by ICU to be unreasonable, objectionable, and offensive. Therefore, I would affirm the judgment based on the jury verdict in favor of Jones and against ICU. JOHNSTONE, J., concurs. ENGLAND, Justice (dissenting). The question before us is: Considering the evidence in a light most favorable to Jones, did Jones produce substantial evidence creating a factual dispute requiring resolution by the jury? I believe he did. Therefore, I respectfully dissent from the majority's decision to reverse the judgment for Jones and render a judgment for I.C.U. Investigations, Inc. ("ICU"). ICU argues that if the trial court had followed this Court's decision in Johnson v. Corporate Special Services, Inc., 602 So. 2d 385 (Ala.1992), it would have concluded that ICU did not invade Mr. Jones's privacy. Specifically, ICU contends that if Johnson is controlling, then the trial court erred by failing to grant ICU's motion for a judgment as a matter of law. ICU contends that because it filmed Jones while Jones was in his front yard and was aware that he might be under surveillance by Alabama Power Company, his privacy was not invaded. In Johnson, an employee who had filed a workers' compensation claim was under surveillance by a company hired by his employer's workers' compensation carrier. 602 So. 2d at 386. When the employee confronted the investigator, the investigator allegedly revealed a gun and drove *691 away from the surveillance scene. The employee sued the insurance carrier and the investigation company, alleging assault and battery and invasion of privacy. The trial court entered a summary judgment in favor of the insurance carrier and the investigation company on the invasion-of-privacy claim. This Court affirmed. Quoting Hogin v. Cottingham, 533 So. 2d 525, 530-31 (Ala.1988), we stated that this Court had applied two standards for determining if a wrongful intrusion has occurred. The first of those standards reads as follows: Johnson, 602 So. 2d at 387. We stated in Johnson that in determining whether an intrusion upon seclusion is actionable, the court must examine both the purpose for the intrusion and the means used. Johnson, 602 So. 2d at 387. Because in Johnson the extent of the employee's injury was in dispute, the employee should have "expected a reasonable amount of investigation into his physical incapability." 602 So. 2d at 388. Thus, this Court determined that the investigative purpose was legitimate. In examining the means used, this Court cited, with approval, Alabama Electric Co-operative, Inc. v. Partridge, 284 Ala. 442, 225 So. 2d 848, 851 (1969), which had stated that a plaintiff claiming personal injury subjects himself to public observation and is "`not entitled to the same degree of privacy that he or she would enjoy within the confines of [his or] her home.'" 602 So. 2d at 388 (quoting Partridge, 284 Ala. at 445, 225 So.2d at 851). In conclusion, this Court said: 602 So. 2d at 388 The holding in Johnson indicates that activity in a person's front yard, when that person is exposed to the public view, is not subject to protection for privacy reasons. By contrast, filming activity inside the home or even in the backyard can be an invasion of privacy. Although ICU filmed Jones urinating in his front yard,[3] Jones's act of urinating was a private act, one not usually exposed to the public gaze. Since this Court decided Smith v. Doss, 251 Ala. 250, 37 So. 2d 118 (1948), Alabama has recognized the invasion-of-privacy tort: Phillips v. Smalley Maintenance Servs., Inc., 435 So. 2d 705, 708 (Ala.1983). In Phillips, this Court adopted the Restatement (Second) of Torts § 652B (1977) definition of invasion of privacy or intrusion into the plaintiffs solitude or seclusion. *692 435 So. 2d at 708; Johnston v. Fuller, 706 So. 2d 700, 702 (Ala.1997). Restatement § 652B states: Comments a and b to § 652B state: Thus, as we held in Johnson, an investigator filming, photographing, or looking into a person's home through the windows invades that person's privacy. In the instant case, Kevin Hand testified that he did not film Jones inside his home, but in the front yard. Comments c and d to Restatement § 652B state: (Emphasis supplied.) Therefore, under certain circumstances, a person's privacy may be invaded even when he is in a public place. Illustration 7 to Restatement § 652B provides an example of the publicplace/private-matter exception. *693 Since the front yard, which is subject to the public gaze, is a public place for invasion-of-privacy purposes, the investigator was free to film Jones while he was in his front yard. However, despite the fact that Jones urinated in the front yard, ICU, through Hand, invaded Jones's privacy, because he filmed an act "not exhibited to the public gaze." In light of the presumption of correctness attributed to jury verdicts, and our duty to consider the evidence on appeal in the light most favorable to Jones, see Delchamps, Inc. v. Bryant, 738 So. 2d 824, 830-31 (Ala.1999), I cannot say that the verdict was "plainly and palpably wrong." This presumption of correctness should be further enhanced because the jury viewed the premises that were videotaped. Resolution of this issue could depend upon where in his front yard Jones was when he urinated and whether there were places in his front yard where he could stand and not be in public view or subject to the public gaze. Thus, by viewing the premises, the jury was in a better position to judge whether ICU had extended into areas "not exhibited to the public gaze." These are the kinds of circumstances where a personal view of the premises by the jury should enhance the presumption of correctness that attaches to a jury verdict. We have held that a trial court's findings are enhanced under the ore tenus rule when the trial court personally views the property in question. See Bell v. Jackson, 530 So. 2d 42 (Ala.1988). Jones presented substantial evidence indicating that ICU invaded Jones's privacy, and the evidence presented a factual dispute requiring resolution by the jury. Thus, the trial court correctly denied ICU's motion for a judgment as a matter of law or for a new trial or an order of remittitur. I would affirm the judgment of the trial court. BROWN, Justice. APPLICATION OVERRULED. HOOPER, C.J., and MADDOX, HOUSTON, SEE, and LYONS, JJ., concur. COOK, JOHNSTONE, and ENGLAND, JJ., dissent. JOHNSTONE, Justice (dissenting). I respectfully dissent. First, I concur in Justice Cook's dissent. Second, I observe that the issue of whether telephoto surveillance is offensive or improper enough to constitute invasion of privacy is a jury question. Hogin v. Cottingham, 533 So. 2d 525 (Ala.1988); and Alabama Elec. Co-op., Inc. v. Partridge, 284 Ala. 442, 225 So. 2d 848 (1969). Noteworthily, the name of the defendant-appellantICU Investigations, Inc.obviously intends a pun on "I see you" and implies prurient Peeping Tomism. [1] Hand's investigation log indicated 11 days of surveillance, but Hand testified at trial that he investigated Jones for 12 days. [2] Jones testified at trial that he had seen a blue van parked at his neighbor's barn located off Highway 77; however, Jones said he did not know whether Hand was in the van. [3] The record indicates that Jones's front porch and front yard could be seen by persons traveling on Highway 77 or on County Road 79.

September 1, 2000

644360b9-57e5-4c37-9a28-0e717cf5853f

Ex Parte ATM

804 So. 2d 171

1980829

Alabama

Alabama Supreme Court

804 So. 2d 171 (2000) Ex parte A.T.M. (Re A.T.M. v. State). 1980829 Supreme Court of Alabama. June 30, 2000. Dissenting Opinion on Overruling of Rehearing September 1, 2000. *172 William E. Scully, Jr., Daphne, for petitioner. Bill Pryor, atty. gen., and Thomas F. Parker IV, asst. atty. gen., for respondent. JOHNSTONE, Justice. A.T.M. was convicted of two counts of sexual abuse in the first degree for the sexual abuse of C.R. and M.R. in violation of § 13A-6-66(a)(3), Ala.Code 1975; one count of sexual abuse in the second degree for the sexual abuse of T.R. in violation of § 13A-6-67(a)(2); and one count of attempted sexual abuse in the second degree for the sexual abuse of L.R. in violation of §§ 13A-6-67(a)(2) and 13A-4-2(a). The trial court sentenced A.T.M. to 10 years' imprisonment for each of his convictions for sexual abuse in the first degree, to one year imprisonment for his conviction for sexual abuse in the second degree, and to six months' imprisonment for his conviction for attempted sexual abuse in the second degree. Upon A.T.M.'s appeal, the Court of Criminal Appeals, on December 18, 1998, affirmed his convictions and sentences without an opinion. After the Court of Criminal Appeals denied A.T.M.'s application for rehearing and his Rule 39(k), Ala. R.App. P., motion, A.T.M. petitioned this Court for a writ of certiorari, which we granted. We affirm the two convictions for first-degree sexual abuse but reverse the two convictions for second-degree sexual abuse and attempted second-degree sexual abuse respectively. A.T.M. raises a number of issues in his petition for a writ of certiorari. The most meritorious issues are: 1) whether the State failed to prove the identity of the alleged victim Kamatra R. and 2) whether the State failed to introduce sufficient evidence to establish that he attempted to abuse L.R. sexually. First, A.T.M. contends that the State failed to establish the identity of a witness named T.R. as "Kamatra R.," the victim named in the indictment charging A.T.M. with sexual abuse in the second degree. The prosecutor offered T.R. as the victim of sexual abuse in the second *173 degree allegedly committed by A.T.M. On direct examination, when the prosecutor asked T.R. whether she was known by another name, T.R. answered that she was also known as "Dot." The prosecutor then specifically asked T.R. whether she was known also as "Kamatra." T.R. responded that "Kamatra" was not her name and that no one called her by that name. (R. 106.) Shortly thereafter, defense counsel objected to any further testimony by T.R. on the ground that the her testimony was irrelevant to the charge of sexual abuse in the second degree because the indictment charged A.T.M. with abusing "Kamatra R," not "T.R." The prosecutor contended that she would later introduce evidence to show T.R.'s legal name as "Kamatra R." The trial court overruled defense counsel's objection and allowed T.R. to continue to testify. Later, through the testimony of the Department of Human Resources representative who interviewed the victims in this case, the prosecutor tried to establish that T.R.'s legal name is "Kamatra." However, defense counsel moved to strike the DHR representative's testimony in that regard on the ground that the testimony was hearsay. The trial court granted defense counsel's motion to strike and instructed the jury to disregard the DHR representative's testimony about "Kamatra." (R. 253.) The prosecutor did not offer any other evidence to show that T.R. and "Kamatra R." are the same person. "The State has the burden of proving that the person named in the indictment as being the victim of the offense was, in fact, the victim." Sockwell v. State, 675 So. 2d 4, 21 (Ala.Crim.App.1993). "To be material, a variance as to the name alleged in the indictment from that proved by the evidence must be such as to be misleading or substantially injurious to the accused in making his defense, or to expose him to the danger of a second trial on the same charge." Rupert v. State, 45 Ala.App. 84, 86, 224 So. 2d 921, 922 (1969); Helms v. State, 40 Ala.App. 622, 624, 121 So. 2d 104 (1960). "The purpose of the [fatal variance] rule is for identification and notice to defendant, and if those purposes are met no substantial injury to defendant results." Vaughn v. State, 236 Ala. 442, 183 So. 428, 430 (1938). In House v. State, 380 So. 2d 940, 942-43 (Ala. 1979), this Court adopted the fatal variance rule as stated in 42 C.J.S. Indictments and Informations § 265 (1944): There is no material variance between the indictment and the proof at trial where a mere inaccuracy occurs in the name, as long as "the identity of the person named in the indictment with the one named in the evidence is established." McCoy v. State, 232 Ala. 104, 106, 166 So. 769, 770 (1936). See Turner v. State, 406 So. 2d 1066, 1069 (Ala.Crim.App.1981). In this case, the State did not produce any evidence to show that "Kamatra R.," the victim named in the indictment charging A.T.M. with sexual abuse in the second degree, was in fact T.R., who testified at trial that A.T.M. had sexually abused her. Indeed, the evidence affirmatively proved that T.R. was not the alleged victim Kamatra R.; and the record contains no evidence that A.T.M. sexually abused any Kamatra R. Because the State could seek to *174 indict A.T.M. for the sexual abuse of T.R. on the basis of T.R.'s testimony, allowing the State to produce the same evidence the testimony of T.R.to prove the charge of sexual abuse of "Kamatra R." by A.T.M. would be "substantially injurious" to A.T.M. Thus, the trial court erred in not granting A.T.M. a judgment of acquittal on the charge of sexual abuse in the second degree as charged in the indictment naming "Kamatra R." as the victim of sexual abuse. Second, A.T.M. contends that the State failed to present sufficient evidence to support his conviction for attempted sexual abuse in the second degree of L.R. A person is guilty of sexual abuse in the second degree if "he, being 19 years old or older, subjects another person to sexual contact who is less than 16 years old, but more than 12 years old." § 13A-6-67(a)(2). "Sexual contact" is defined as "[a]ny touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party." § 13A-6-60(3) (Emphasis added.) "A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense." § 13A-4-2 (Emphasis added.) An "overt act" is more than "mere intention" or "preparation" to commit a specific crime. Whiddon v. State, 53 Ala.App. 280, 283, 299 So. 2d 326, 329-30 (1973). "The attempt is complete and punishable, when an act is done with intent to commit the crime, which is adapted to the perpetration of it, whether the purpose fails by reason of interruption, or for other extrinsic cause. The act must reach far enough towards the accomplishment of the desired result to amount to the commencement of consummation." Id. (Emphasis added.) See also Ford v. State, 612 So. 2d 1317 (Ala.Crim.App.1992). Here, L.R. testified that, one night when she was asleep on the floor, she awoke to find A.T.M. "standing over [her] like he was fixing to dig in." When defense counsel asked L.R. whether A.T.M. had actually touched her, L.R. stated: "I don't know if he was getting ready or already did it. I was asleep." (R. 138.) L.R. did not testify that A.T.M. made any move to touch her, much less to touch any "intimate part." Although the DHR representative testified that L.R. told her that A.T.M. may have been unzipping or zipping up her pants when he was standing over her, this hearsay statement is merely speculative. L.R. did not testify that A.T.M. even touched her zipper. Thus, the trial court erred in denying A.T.M. a judgment of acquittal on the charge of attempted sexual abuse in the second degree of L.R. A.T.M. contends also that, as to all the charges against him, the State failed to prove that he touched any of the victims with the intent to gratify his sexual desires. See § 13A-6-66(a)(3), § 13A-6-67(a)(2), and § 13A-6-60(3). "Whether [the accused's] touching is for the purpose of sexual gratification is a question for the jury and may be inferred from the act itself." Roughton v. State, 644 So. 2d 1339, 1340 (Ala.Crim.App.1994); Adler v. State, 591 So. 2d 133, 135 (Ala.Crim.App.), cert. denied, 591 So. 2d 135 (Ala.1991). C.R. testified that, more than once, A.T.M. came into the bedroom where she was sleeping and touched her breasts, thighs and legs. Further, M.R. testified that, on more than one occasion, A.T.M. touched or rubbed her breasts. Consequently, the State presented sufficient evidence from which the jury could infer that A.T.M. touched intimate body parts of C.R. and M.R. to satisfy his sexual desire for girls under the age of 16. For the reasons stated, we affirm the judgment of the Court of Criminal Appeals *175 insofar as it affirms A.T.M.'s two convictions for sexual abuse in the first degree of C.R. and of M.R. We reverse the judgment of the Court of Criminal Appeals insofar as it affirms A.T.M.'s convictions for sexual abuse in the second degree against Kamatra R. and attempted sexual abuse in the second degree against L.R., and we remand with instructions for the Court of Criminal Appeals to order that these two convictions be vacated. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HOUSTON, COOK, SEE, and ENGLAND, JJ., concur. HOOPER, C.J., concurs in the result. MADDOX, J., concurs in the affirmance and dissents from the reversal. BROWN, J.,[*] recuses herself. JOHNSTONE, Justice. APPLICATION OVERRULED. HOOPER, C.J., and HOUSTON, COOK, SEE, and ENGLAND, JJ., concur. MADDOX, J., dissents. BROWN, J., recuses herself.[*] MADDOX, Justice (dissenting). I respectfully dissent from the overruling of the State's application directed toward this Court's reversal of the Court of Criminal Appeals' judgment affirming A.T.M.'s convictions for sexual abuse in the second degree against Kamatra R. and attempted sexual abuse in the second degree against L.R. I would grant the State's application and affirm that portion of the Court of Criminal Appeals' judgment affirming A.T.M.'s convictions for sexual abuse in the second degree and attempted sexual abuse in the second degree. [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

September 1, 2000

20fb1c05-8ea0-4694-adfb-86cd14bdcbc2

Dunn v. Comcast Corp.

781 So. 2d 940

1990402

Alabama

Alabama Supreme Court

781 So. 2d 940 (2000) Ralph E. DUNN, Jr. v. COMCAST CORPORATION and Comcast Cable Communications, Inc. 1990402. Supreme Court of Alabama. August 18, 2000. Rehearing Denied October 13, 2000. *941 James T. Sasser of McCain, Ogletree, Sasser & Ozmint, P.C., Gadsden, for appellant. James W. McGlaughn and Elizabeth Golson McGlaughn of Inzer, Haney, Johnson & McWhorter, P.A., Gadsden, for appellee Comcast Corporation. *942 LYONS, Justice. Ralph E. Dunn, Jr., appeals from a summary judgment entered in favor of Comcast Corporation and Comcast Cable Communications, Inc. (together "Comcast"), on Dunn's retaliatory-discharge claim. We reverse and remand. Dunn had been employed by Comcast as a service technician for approximately 16 years. While on a service call, on October 28, 1996, he fell from an extension ladder and suffered a closed-head injury. He was hospitalized for three days. Because of this injury, Dunn received workers' compensation benefits from the time of his injury until February 7, 1997, when his doctor gave him permission to return to work; the doctor restricted him to work that does not involve climbing a ladder. In March 1997, Dunn returned to work at Comcast, performing a number of duties that did not require him to climb a ladder. In May 1997, Comcast demanded that he return to his duties as a service technician, a job that involved climbing ladders. He refused and, on May 23, 1997, Comcast fired him. On July 10, 1997, Dunn sued Comcast, seeking workers' compensation benefits and seeking damages, pursuant to § 25-5-11.1, Ala.Code 1975, for an alleged retaliatory discharge. The two claims were severed, and Dunn's workers' compensation claim was settled. Comcast moved for a summary judgment on Dunn's retaliatory-discharge claim. The trial court entered a summary judgment for Comcast; Dunn appealed. When reviewing the disposition of a motion for summary judgment, this Court applies the same standard the trial court applies "in determining whether the evidence before the court made out a genuine issue of material fact." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala. 1988). Bleier v. Wellington Sears Co., 757 So. 2d 1163, 1167 (Ala.2000) (citing Bass v. South-Trust Bank of Baldwin County, 538 So. 2d 794 (Ala.1989)). Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). In its brief supporting its motion for summary judgment, Comcast argued to the trial court that a summary judgment would be appropriate because, it argued, when Dunn was discharged, he was not "willing and able" to perform his duties as a service technician, because his injury precluded him from climbing a ladder. When Dunn filed his action, Alabama law required that an employee in a retaliatory-discharge case show, as an element of his or her prima facie case, that at the time of the discharge 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), overruled by Bleier v. Wellington Sears Co., supra, 757 So. 2d 1163. However, two months after the trial court had entered the summary judgment for Comcast, this Court removed the "willing-and-able" requirement from the plaintiffs prima facie case, in Bleier v. Wellington Sears Co.: 757 So. 2d at 1171. Thus, the plaintiff is not now required to show, as an element of a retaliatory-discharge claim, that at the time of the discharge he or she was "willing and able" to return to work. Although the trial court did not specify in its order the basis for granting the summary-judgment motion, we must conclude, given the law as it existed before Bleier and the arguments expressed in Comcast's brief in support of its summary-judgment motion, that the trial court found no genuine issue of material facti.e., found that Dunn's inability to climb a ladder prevented him from showing that he was "willing and able" to return to work. See Bleier, supra. The trial court's judgment was consistent with the law as it existed when the judgment was entered. However, under the new rule expressed in Bleier, a trial court, in deciding whether to enter a summary judgment against the employee in a retaliatory-discharge case, should view all evidence in the light most favorable to the employee and ask whether the employee has shown: (1) an employment relationship; (2) an on-the-job injury; (3) notice to the employer of the on-the-job injury; and (4) subsequent termination of employment. See Bleier, supra. An employee who presents substantial evidence of all four elements has established a prima facie case of retaliatory discharge. The burden would then shift to the employer to rebut the inference that the discharge was retaliatory, by articulating a nonretaliatory reason for the discharge, supported by substantial evidence. Id. If the employee cannot rebut the employer's nonretaliatory explanation, then a summary judgment would be appropriate. However, if a genuine issue of material fact exists as to whether the nonretaliatory reason given by the employer was actually the basis for the discharge, then a summary judgment would not be appropriate. See Bleier, supra. Dunn presented evidence indicating: (1) that he had been employed by Comcast for 16 years; (2) that while working in the course of his duties as a service technician he was injured in a fall from an extension ladder; (3) that Comcast was aware of his on-the-job injury; and (4) that Comcast terminated his employment. Thus, according to the rationale of Bleier, Dunn established a prima facie case of retaliatory discharge and the burden shifted to Comcast to rebut that prima facie case. However, Bleier also recognizes that "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." Id. at 1171. Comcast contends that it had a nonretaliatory reason for discharging Dunnthat he could not climb a ladder and climbing a ladder was a necessary part of his duties as a service technician. When someone is unable to perform the duties of his or her job, the employer is not required to make special accommodations to keep that person employed.[1] See Bleier, supra. Comcast contends that because Dunn's inability to climb a ladder prevented him from carrying out his duties *944 as a service technician, its termination of his employment was not retaliatory. However, Dunn argues that Comcast had decided to terminate his employment, even before he returned to work and before Comcast knew he would not be able to climb again. Thus, he contends, the stated reason for his termination was merely a pretext. The record contains evidence indicating that Comcast's general manager at a time before Dunn had returned to work and before Comcast had determined whether he could or could not climb a ladderhad anticipated terminating Dunn. This evidence, viewed in the light most favorable to Dunn, creates a genuine issue of material fact as to whether Comcast's basis for discharging Dunn was pretextual. Dunn's evidence was sufficient to establish a case of retaliatory discharge and to defeat Comcast's motion for a summary judgment. The summary judgment in favor of Comcast is reversed, and we remand the cause for further proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, COOK, and JOHNSTONE, JJ., concur. [1] By overruling earlier cases, Bleier abolished the requirement in a retaliatory-discharge claim that an employee be "willing and able" to return to work, a requirement discussed in Hammock v. Ryder Dedicated Logistics, Inc., 716 So. 2d 215, 218 (Ala.Civ.App.1998); Rice v. Bruno's Inc., 705 So. 2d 486, 488 (Ala.Civ. App.1997); and Lambert v. Beverly Enterprises, Inc., 695 So. 2d 44, 47 (Ala.Civ.App.1997).

August 18, 2000

ebb93451-8b2f-4677-88d0-2924e214e834

Parkway Dodge, Inc. v. Yarbrough

779 So. 2d 1205

1990434, 1990494

Alabama

Alabama Supreme Court

779 So. 2d 1205 (2000) PARKWAY DODGE, INC. v. Patricia YARBROUGH. DaimlerChrysler Corporation v. Patricia Yarbrough. 1990434 and 1990494. Supreme Court of Alabama. September 1, 2000. John Martin Galese and David A. Norris of Galese & Ingram, P.C., Birmingham, for appellant Parkway Dodge, Inc. James F. Walsh and Michael J. Velezis of Lange, Simpson, Robinson & Somerville, L.L.P., Birmingham, for appellant DaimlerChrysler Corporation. Jackie M. McDougal, Bessemer, for appellee. BROWN, Justice. Parkway Dodge, Inc. ("Parkway"), and DaimlerChrysler Corporation, defendants in an action pending in the Jefferson Circuit Court, separately appeal from the circuit court's order denying their motions to compel arbitration of the plaintiff's claims. We affirm in part and reverse and remand in part. *1206 On April 1, 1997, Patricia Yarbrough purchased a new 1997 Dodge Intrepid automobile from Parkway, an automobile dealership; the automobile had been manufactured by DaimlerChrysler. The automobile soon began to leak oil. Yarbrough returned it to Parkway several times for repairs to correct the leak. During an inspection of the vehicle made pursuant to the informal dispute-resolution process of the DaimlerChrysler warranty, a Parkway mechanic discovered a hole in the engine block; a patching compound had been placed on the hole. Yarbrough sued Parkway and Daimler-Chrysler, alleging fraud and misrepresentation in the sale of the vehicle; suppression of material facts regarding the vehicle; deceit; and breach of an express warranty and an implied warranty. Parkway answered and moved to stay the action and to compel arbitration of Yarbrough's claims. In support of its motion, Parkway submitted a "Retail Buyer's Order," which contained the language of an arbitration agreement between the dealer and the purchaser. The buyer's order contains the following provision: (Emphasis original.) Parkway also submitted the affidavit of Rick Holt, Parkway's general manager. It reads, in pertinent part: Yarbrough filed an opposition to Parkway's motion to compel arbitration, asserting fraud, misrepresentation, and/or suppression of material fact in regard to the formation of the arbitration agreement. She further alleged that the arbitration agreement was unconscionable and that it was made subject to a mutual mistake of fact, i.e., the patched hole in the car's engine block. DaimlerChrysler also moved to compel arbitration, or in the alternative, to stay all pending litigation until Yarbrough had completed arbitration with Parkway. In opposition to DaimlerChrysler's motion to compel arbitration, Yarbrough alleged, among other things, that DaimlerChrysler could not rely on the arbitration agreement she had entered into with Parkway because (1) DaimlerChrysler was not a signatory to that arbitration agreement; (2) the arbitration agreement was not broad enough to include DaimlerChrysler; (3) Parkway was not an agent of Daimler-Chrysler; (4) DaimlerChrysler was not a third-party beneficiary of the arbitration agreement; (5) the claims against DaimlerChrysler were not intertwined with and founded upon the sales contract between Yarbrough and Parkway; and (6) DaimlerChrysler lacked standing to compel arbitration because the claims against DaimlerChrysler arose from a separate and distinct warranty agreement that contained no arbitration clause. Yarbrough further asserts that under the Magnuson-Moss Warranty Act express warranties are not the proper subject of arbitration agreements. The trial court denied both motions to compel arbitration. In an appeal from the denial of a motion to compel arbitration, our review is de novo. See First American Title Ins. Corp. v. Silvernell, 744 So. 2d 883, 886 (Ala. 1999); Crimson Indus., Inc. v. Kirkland, 736 So. 2d 597, 600 (Ala.1999); Patrick Home Ctr., Inc. v. Karr, 730 So. 2d 1171, 1171 (Ala.1999). Parkway contends that the trial court erred in denying its motion to compel arbitration. Yarbrough argues that we should affirm the trial court's ruling, on two theories. The first theory is that "Yarbrough's defenses of fraudulent inducement and mutual mistake of fact specifically related to the arbitration provision and therefore, were properly ruled upon by the court." "A party must provide substantial evidence of fraud in the inducement, particularly related to the arbitration clause, in order to avoid arbitration." Ex parte Perry, 744 So. 2d 859, 863 (Ala.1999). In Anniston Lincoln Mercury Dodge v. Conner, 720 So. 2d 898, 901 (Ala.1998), this Court held: Although Yarbrough alleges that she has challenged the making of the arbitration agreement itself, "`we must look beyond the ad hoc arguments of counsel in order to determine whether [Yarbrough's] claim actually bears upon the entire agreement' or just the arbitration clause." Nations-Banc Invs., Inc. v. Paramore, 736 So. 2d 589, 591 (Ala.1999) (quoting Anniston Lincoln Mercury Dodge v. Conner, supra, 720 So.2d at 901-02). Yarbrough's opposition to Parkway's motion to compel arbitration states, in pertinent part: Yarbrough's claims of fraudulent inducement and mutual mistake regarding the arbitration agreement in particular appear to be based on an ad hoc argument intended to avoid the arbitration agreement. We conclude that Yarbrough's challenge is to the contract as a whole, not just the arbitration agreement; thus, arbitration is the appropriate forum for resolving her challenge. Yarbrough further contends that the arbitration agreement is unconscionable because, she says, she was given no meaningful choice as to the terms of the contract; the parties had unequal bargaining power; and the terms of the arbitration agreement were oppressive, one-sided, and patently unfair. She also claims that to enforce the arbitration agreement would cause her to suffer a financial hardship. The arbitration agreement provides that the "arbitration filing fees and all costs of the arbitration proceeding shall be paid by the party seeking affirmative relief." We note, however, that Parkway and Daimler-Chrysler agreed to pay, in equal measure, the filing fees and costs of arbitration, subject to realignment by the arbitrator at the end of the arbitration process. Yarbrough's financial-hardship argument is foreclosed by this Court's decisions in Green Tree Financial Corp. v. Wampler, 749 So. 2d 409 (Ala.1999); First Family Financial Services, Inc. v. Rogers, 736 So. 2d 553 (Ala.1999); and Ex parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33 (Ala. 1998). Moreover, Yarbrough presented no evidence, only her bare allegations, to support a finding that the arbitration clause in the buyer's order was unconscionable. Accordingly, we hold that the arbitration agreement between Yarbrough and Parkway is valid and enforceable, and that, pursuant to the terms of that agreement, Parkway is entitled to compel arbitration of Yarbrough's claims. DaimlerChrysler argues that the arbitration agreement between Yarbrough and Parkway also entitled DaimlerChrysler to compel arbitration of Yarbrough's claims against DaimlerChrysler. Our recent case of Ex parte Stamey, 776 So. 2d 85, 89-90 (Ala.2000), compels that we reject DaimlerChrysler's argument: 776 So. 2d at 89-90. We note that the arbitration agreement in this present case is replete with references to the "dealer" and the "purchaser." Specifically, the arbitration agreement states that "[t]he Dealer and Purchaser(s) mutually covenant, stipulate and agree, in connection with the resolution of any dispute arising out of the contract(s) entered into by the parties of and concerning the within described motor vehicle ... that Dealer and purchaser(s) agree to submit such dispute(s) to BINDING ARBITRATION." The arbitration agreement goes on to state that "[t]he arbitrators impaneled to arbitrate this matter shall be selected by the parties to this agreement as followsThe dealer shall select an arbitrator. The Purchaser(s) shall select an arbitrator." Although this Court has recognized the applicability of the doctrine of equitable estoppel in certain cases involving a nonsignatory's motion to compel arbitration,[1]*1210 the arbitration agreement in this case is specifically limited to the signing parties, namely, Yarbrough, as the purchaser, and Parkway, as the dealer. The language of the arbitration agreement is not broad enough to reach the manufacturer; therefore, DaimlerChrysler is not entitled to compel arbitration based upon the terms of the arbitration agreement between Yarbrough and Parkway. Carriage Homes v. Channell, 777 So. 2d 83 (Ala.2000). The trial court's order denying the motion to compel arbitration is affirmed insofar as it relates to Yarbrough's claims against DaimlerChrysler; however, insofar as it relates to Yarbrough's claims against Parkway, it is reversed; and the case is remanded. 1990434REVERSED AND REMANDED. 1990494AFFIRMED. MADDOX, HOUSTON, COOK, SEE, JOHNSTONE, and ENGLAND, JJ., concur. LYONS, J., concurs in part and concurs in the result in part. HOOPER, C.J., concurs in part and dissents in part. LYONS, Justice (concurring in part and concurring in the result in part). I concur as to Part I. I concur in the result as to part II. At first blush, the agreement in this case might appear to be more like the one in Ex parte Napier, 723 So. 2d 49 (Ala.1998), where we required arbitration between the plaintiff and the nonsignatory, than like the one in Med Center Cars, Inc. v. Smith, 727 So. 2d 9 (Ala.1998), where we declined to require arbitration between the plaintiff and the nonsignatory. However, in Ex parte Napier, the arbitration clause required arbitration of "[a]ll disputes, claims or controversies arising from or relating to this Contract or the relationships which result from this Contract." 723 So. 2d at 51 (emphasis added). The arbitration agreement in the instant case requires arbitration of "any dispute arising out of the contract(s) entered into by the parties of and concerning the within described motor vehicle." (Emphasis added.) This phrase is therefore more like the phrase in Carriage Homes v. Channell, 777 So. 2d 83, 85 (Ala.2000), where the arbitration agreement was limited to "any dispute ... arising between them [seller and buyer]." I therefore agree with the main opinion's conclusion that the agreement is not broad enough to require Yarbrough to arbitrate with DaimlerChrysler. The main opinion relies, at least in part, on the method prescribed by the agreement for selecting arbitrators, quoting that portion of the agreement describing the dealer and the purchaser as the parties who select the arbitrators. 779 So. 2d at 1206. I do not find this statement of the method for selecting arbitrators persuasive. Compare Ex parte Napier, where the parties agreed to a similar procedure and this Court enforced the more broadly phrased arbitration agreement at the instance of a nonsignatory. Hence, as to Part II, I concur only in the result. HOOPER, Chief Justice (concurring in part and dissenting in part). I concur in Part I, which holds that the trial court erred in denying Parkway Dodge's motion to compel arbitration, a holding based on a conclusion that Yarbrough's challenge dealt with the contract as a whole and not merely the arbitration provision. However, I dissent from Part II, because I believe the trial court also erred in denying DaimlerChrysler's motion to compel arbitration. I write specially to emphasize my opinion that nonsignatories can indeed compel arbitration with signatories when the claims against the nonsignatories are sufficiently intertwined with the claims against the signatories. See my dissent in Isbell v. Southern Energy *1211 Homes, Inc., 708 So. 2d 571, 584 (Ala.1997), as well as Justice Maddox's dissent in First American Title Insurance Corp. v. Silvernell, 744 So. 2d 883 (Ala.1999). DaimlerChrysler is a nonsignatory to the buyer's order executed between two signatories, Yarbrough and Parkway Dodge. Having previously had no contact whatever with DaimlerChrysler before or at the time she purchased the automobile that is the subject of this case, Yarbrough relied exclusively upon that buyer's order to assert her claims against Parkway Dodge and DaimlerChrysler. She alleged that both Parkway Dodge and DaimlerChrysler sold her the vehicle, made misrepresentations, engaged in improper actions in the sale of the automobile, breached warranties, and breached the contract. In making these allegations, Yarbrough herself failed to differentiate between the two entities and imputed liability to DaimlerChrysler through her contract with Parkway Dodge. Furthermore, Yarbrough's allegations against DaimlerChrysler are based upon the same facts as, and are inherently inseparable from, her claims against Parkway Dodge. Her entire relationship with DaimlerChrysler is based solely upon her purchase of a car from Parkway Dodge. In spite of the reference in the buyer's order to "Buyer" and "Purchaser," through both the facts of this matter and the allegations of Yarbrough's own complaint the causes of action against Parkway Dodge and DaimlerChrysler are intertwined. This Court has already determined that the claims against Parkway Dodge, a signatory to Yarbrough's buyer's order, should be arbitrated; there is no reason why the claims against nonsignatory DaimlerChrysler, which are based on the same transaction, should be resolved in a different forum. Thus, I concur in Part I, but I dissent from Part II because Parkway Dodge's and DaimlerChrysler's claims are sufficiently intertwined to compel arbitration of both. The trial court erred in denying the motions to compel arbitration. Yarbrough should be equitably estopped from avoiding the arbitration to which she agreed. [1] See Ex parte Isbell, 708 So. 2d 571 (Ala. 1997), and Ex parte Lovejoy, [Ms. 1981758, July 7, 2000] ___ So.2d ___ (Ala.2000).

September 1, 2000

2c9b9767-da9e-44aa-859d-e99e6564353c

Flagstar Enterprises, Inc. v. Foster

779 So. 2d 1220

1990296

Alabama

Alabama Supreme Court

779 So. 2d 1220 (2000) FLAGSTAR ENTERPRISES, INC. v. Dorothy FOSTER. 1990296. Supreme Court of Alabama. September 1, 2000. Rick D. Norris, Jr., and Robert S. Lamar, Jr., of Lamar, Burgess, Hale, Miller, Norris & Feldman, P.C., Birmingham, for appellant. John J. Lloyd and Michael J. Cartee of Shelby & Cartee, Tuscaloosa; and J. Mark Hart of Olschner & Hart, P.C., Birmingham, for appellee. *1221 MADDOX, Justice. Dorothy Foster tripped and fell on a rise in the parking-lot pavement outside a Hardee's restaurant in Centreville. The restaurant was owned and operated by Flagstar Enterprises, Inc. In the fall, she broke her left arm and suffered various other injuries, and, as a result, incurred approximately $23,000 in medical expenses. Foster sued Flagstar, alleging that negligence on its part had caused her fall. She requested $125,000 in damages; the jury, however, returned a verdict awarding her $200,000. The trial court entered a judgment on that verdict. Flagstar appeals, presenting a number of issues. Because the trial court erred in failing to hold a hearing on Flagstar's post-trial motion, we reverse and remand. We pretermit discussion of the other issues presented by Flagstar. Flagstar filed, pursuant to Rules 50 and 59, Ala.R.Civ.P., a motion for a judgment as a matter of law (formerly known as a judgment notwithstanding the verdict), or, in the alternative, for a new trial. In its motion, Flagstar alleged, among other things: Flagstar also specifically requested a hearing on this motion, "for the purpose of presenting evidence and argument," but the trial court did not hold a hearing. Because the court did not rule on the motion within 90 days, it was denied by operation of law. See Rule 59.1, Ala. R.Civ.P. In general, whether to grant or to deny a posttrial motion is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal unless by its ruling the court abused some legal right and the record plainly shows that the trial court erred. See Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38 (Ala.1990). However, if a party requests a hearing on its motions for a new trial, the court must grant the request. Rule 59(g), Ala. R.Civ.P. See Walls v. Bank of Prattville, 554 So. 2d 381, 382 (Ala.1989) ("[W]here a hearing on a motion for [a] new trial is requested pursuant to Rule 59(g), the trial court errs in not granting such a hearing."). Although it is error for the trial court not to grant such a hearing, this error is not necessarily reversible error. For example, if an appellate court determines that there was no probable merit to the motion, it may affirm based on the harmless-error rule. See Rule 45, Ala. R.App .P.; and Kitchens v. Maye, 623 So. 2d 1082, 1088 (Ala.1993) ("failure to grant a hearing on a motion for new trial pursuant to Rule 59(g) is reversible error only if it `probably injuriously affected substantial rights of the parties'"). This case presents an issue substantially similar to the one addressed by the Court of Civil Appeals in Palmer v. Hall, 680 So. 2d 307 (Ala.Civ.App.1996), namely whether the denial of a hearing on a Rule 59 motion, which denial occurred by operation of Rule 59.1, was reversible error. *1222 The court in Palmer stated, "[F]or a trial court to avoid the right to a requested hearing on a post-judgment motion and allow the motion to be deemed denied by operation of Rule 59.1 is error, to the extent that such motion presents matters which rise above the rule of harmless error." 680 So. 2d at 308. We must conclude that the trial court erred in allowing Flagstar's motion to be denied by operation of law without Flagstar's being heard on that motion, and we further conclude that this error was not harmless because we find "probable merit" in Flagstar's allegations of juror misconduct. Therefore, the judgment is reversed, and the cause is remanded for the trial court to conduct a hearing on the merits of Flagstar's posttrial motion. REVERSED AND REMANDED WITH DIRECTIONS. HOOPER, C.J., and HOUSTON, COOK, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., dissents. JOHNSTONE, Justice (dissenting). I respectfully dissent from the decision to reverse the denial of the defendant's postjudgment motion and to remand for an evidentiary hearing on the motion. The defendant did not file any affidavit or other evidentiary material to support the postjudgment motion at any time during its pendency. Thus the defendant failed to provide the trial court any proof whatsoever that Juror S. had ever been employed by the defendant at any of its restaurants so as to owe an affirmative answer to the defendant's question whether he had ever been so employed. Likewise, the defendant provided the trial court no proof whatsoever to support the defendant's postjudgment motion allegation "that the jury sought and obtained from the court's bailiff an answer to a question as to whether it could award the plaintiff more money than asked for by the plaintiff's attorneys." On the one hand, Rule 59(g), Ala.R.Civ. P., accorded the defendant a right to be heard on the defendant's postjudgment motion. On the other hand, this rule did not accord the defendant a right to call witnesses and to present live testimony at such a hearing. No language and no implication in any part of Rule 59 accords any party any right to call witnesses and to present live testimony at a hearing on a motion for new trial. Rather, live testimony on motions is governed by Rule 43(e), Ala.R.Civ.P., which reads as follows: This rule vests in the court the prerogative to hear live testimony, but does not grant either party to the motion an absolute right to present live testimony. The refusal of the judge to hear live testimony is within his discretion. No affidavits or other evidentiary materials of record establish to this Court that the trial judge abused his discretion in not hearing live testimony in this case. Pleadings without proof are unavailing. Rule 59(c), Ala.R.Civ.P., contemplates that one or more affidavits will be filed in support of a motion for new trial based on facts outside the record. A motion for new trial based on facts outside the record cannot be granted without an affidavit or other evidentiary material to support the movant's allegations of those facts. Nall v. Tisdale, 581 So. 2d 466 (Ala.1991); National Sec. Ins. Co. v. Elliott, 276 Ala. 353, 162 So. 2d 449 (1964). While, in the case before us, the trial judge's allowing the postjudgment motion to be denied by operation of law without a hearing may constitute error, this Court will not reverse an error unless the record establishes that the error "probably injuriously *1223 affected the substantial rights of" the aggrieved party. Rule 45, Ala.R.App.P. The absence of affidavits or other evidentiary material to support the factual allegations of the defendant's postjudgment motion leaves the record before us devoid of evidence that the denial of the motion "probably injuriously affected the substantial rights of" the defendant. In other words, the defendant's allegations without proof do not demonstrate the "probable merit in the grounds asserted" necessary to exclude the denial of the motion from the operation of the harmless error rule. Greene v. Thompson, 554 So. 2d 376, 381 (Ala.1989) (explaining the application of a harmless error analysis to the erroneous summary denial of a Rule 59(g) postjudgment motion). Thus we should not reverse the denial of the motion.

September 1, 2000

3a501b9a-b852-4f0c-ad34-907d8355f5ce

Ex Parte Melson

775 So. 2d 904

1981463

Alabama

Alabama Supreme Court

775 So. 2d 904 (2000) Ex parte Robert MELSON. (Re Robert Bryant Melson v. State.) 1981463. Supreme Court of Alabama. August 4, 2000. Opinion Modified on Denial of Applications for Rehearing August 4, 2000. *905 LaJuana Davis of Equal Justice Initiative, Montgomery, for petitioner. Bill Pryor, atty. gen., and Thomas F. Parker IV, asst. atty. gen., for respondent. MADDOX, Justice. Robert Melson was convicted in the Etowah County Circuit Court on three counts of murder made capital because the killings were committed during the course of a robbery in the first degree (§ 13A-5-40(a)(2), Ala.Code 1975); one count of murder made capital because it involved the murder of two or more persons by one act or pursuant to one scheme or course of conduct (§ 13A-5-40(a)(10)); one count of attempted murder (§ 13A-4-2); and one count of robbery in the first degree (§ 13A-8-41). The murder convictions were based on the deaths of three people. The circuit court sentenced him to death. The Court of Criminal Appeals affirmed his convictions and the sentence of death. Melson v. State, 775 So. 2d 857 (Ala.Crim. App.1999). We granted Melson's petition for certiorari review. In his petition he raised *906 many of the numerous issues he had raised in the Court of Criminal Appeals. We have carefully considered the briefs of the parties, the oral arguments of counsel, and have reviewed the record, and we find no reversible error. Consequently, we affirm the judgment of the Court of Criminal Appeals, but we will address three of Melson's issuestwo of them involving what Melson contends was prosecutorial misconduct in order to explain why we, like the Court of Criminal Appeals, find no reversible error in regard to those issues. During the guilt phase of the trial, the State elicited, through a question asked of Officer Wayne Ragan, a detective, testimony indicating that Melson's codefendant, Cuhuatemoc Peraita, told police that Melson had been wearing a certain pair of shoes at the time of the crimes. Melson objected to the admission of Officer Ragan's answer regarding the shoes and moved for a mistrial on the ground that to use against him the codefendant's statement, which he argued was hearsay, would violate his Sixth Amendment right "to be confronted with the witnesses against him." The trial court sustained the objection, denied the motion for a mistrial, instructed the jury to disregard the answer, and immediately questioned the jurors to ascertain whether any of them would in fact have "any problem" following the instruction to disregard the detective's answer. Each juror indicated that he or she would not have a problem following the trial court's instruction.[1] The Court of Criminal Appeals held that Peraita's statement regarding the shoes was not within the definition of "hearsay" provided in Rule 801(c), Ala.R.Evid. Therefore, that court held that to admit Officer Ragan's answer would not have violated Melson's right to confrontation. The Court of Criminal Appeals further held that, even assuming that the prosecutor's question and Ragan's answer were improper, the trial court had "eradicated any possible prejudice suffered by Melson" by promptly sustaining the objection, instructing the jury to disregard the answer, and questioning the jurors to ascertain whether any of them would, in fact, have a problem following the trial court's instructions. 775 So. 2d at 895-96. In its brief, the State contends that Peraita's statement did not constitute hearsay, as defined in Rule 801(c), Ala.R.Evid., because, the State says, the statement was not being "offered in evidence to prove the truth of the matter asserted." The State argues that the answer regarding Peraita's statement was elicited from Officer Ragan in order to explain why the police officer seized Melson's shoes, not to prove that Melson was wearing a particular pair of shoes. We disagree with the State's argument, *907 but, based on the facts presented in this case, we find no reversible error. We believe Peraita's statement, elicited from Officer Ragan, falls within the definition of "hearsay" at Rule 801(c), Ala.R.Evid., and that it was, therefore, inadmissible; we nevertheless conclude that the circuit court's ruling sustaining Melson's objection,[2] followed by its instructing the jury to disregard the answer and its questioning the jurors to ascertain if any of them would have a problem following the court's instructions, removed any possible prejudice suffered by Melson. During closing arguments in the guilt phase of Melson's trial, the prosecutor referred to Melson as an "animal" and stated, "It is very difficult to prove someone is innocent when they are not." Because Melson did not object to these statements at trial, the Court of Criminal Appeals reviewed Melson's arguments regarding them under the "plain-error" rule of review. See Rule 45A, Ala.R.App.P. The Court of Criminal Appeals held that, under the circumstances, there was no plain error in the prosecutor's remarks. We agree with the Court of Criminal Appeals, but we caution prosecutors that there are boundaries beyond which they should not go when arguing a case before a jury, and that crossing that boundary between what is proper and what is improper is prosecutorial misconduct that, under the appropriate circumstances, can result in a reversal of a conviction. We have carefully read the opinion of the Court of Criminal Appeals, and we have carefully analyzed all of Melson's arguments relating to the validity of the convictions and the sentence of death. Some words of caution are appropriate regarding Part XVI of the opinion of the Court of Criminal Appeals. 775 So. 2d at 901. The trial judge sentenced the defendant to death upon a finding "that the mitigating circumstances heretofore enumerated are insufficient to outweigh the aggravating circumstance." 775 So. 2d at 901. To support the imposition of the death penalty, the law requires that the aggravating circumstance or circumstances outweigh the mitigating circumstance or circumstances. See § 13A-5-47(d) and (e), Ala.Code 1975; Ex parte Jones, 456 So. 2d 380, 382 (Ala.1984). On this point, the Court of Criminal Appeals cited Weaver v. State, 678 So. 2d 260 (Ala.Crim.App.1995), rev'd on other grounds, 678 So. 2d 284 (Ala.1996), and other cases for the proposition that this defect was a "technical" defect or error, and correctly concluded that the error was harmless in this particular case, but the error should not be minimized as a mere technicality. A trial court is to impose a sentence of death only after finding that the aggravating circumstance or circumstances outweigh the mitigating circumstance or circumstances. But we conclude in this case, as did the Court of Criminal Appeals, that the "error in the trial court's sentencing order was error without injury." See 775 So. 2d at 902. Certainly, the better practice would be to strictly follow the mandates of the statute when imposing death sentences. We have reviewed the record for plain error. We conclude that the opinion of the Court of Criminal Appeals correctly addresses all the other issues Melson raised both in that court and in his petition to this *908 Court, and we find in the record no error that "has or probably has adversely affected [Melson's] substantial rights." Rule 39(k), Ala.R.App.P. Consequently, we affirm the judgment of the Court of Criminal Appeals. AFFIRMED. HOOPER, C.J., and HOUSTON, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] This issue is based on the following exchange that occurred during the testimony of Officer Ragan: "[District attorney:] Okay. Now with regard to the shoes that you saw on Mr. Melson's feet down there at the detective division where it was temporarily housed at the Saint James School, who was the source of the information that led to the apprehension of those shoes? "[Officer Ragan:] Mr. Peraita. "[Defense counsel:] Your Honor, I object and move to strike that answer as being prejudicial to [Melson]. It violates his right of confrontation. "The Court: Sustained. "[District attorney:] Okay. "[Defense counsel:] I would ask that the jury be instructed to disregard Officer Ragan's answer to that question. "The Court: Strike that answer because it is solicited information from somebody who is not here to be cross-examined, that being Peraita. So disregard that answer. "[District attorney:] That's all, your honor. "[Defense counsel:] Your Honor, we move for a mistrial based on those rulings. "The Court: Denied. Does the jury have any problem with disregarding that? If you can't, I want you to raise your hand. (No response from the jury.) "The Court: Okay. Go ahead. "[District attorney:] That's all. Nothing further." (R. 1461-62.) [2] We urge vigilance in evaluating any offer of testimony about an out-of-court declaration "not for the truth of the matter asserted." The admissibility of such testimony depends on its being relevant to a proper issue in the case. The first inquiry should be: "if the out-of-court declaration is not offered for its truth, is whatever the declaration does tend to prove really at issue in the particular proceeding?"

August 4, 2000

66f6507a-8306-4afc-93d7-5a6008efb513

Ex Parte Bd. of Pardons and Paroles

793 So. 2d 774

1981875

Alabama

Alabama Supreme Court

793 So. 2d 774 (2000) Ex parte BOARD OF PARDONS AND PAROLES. (Re George C. Esensoy and Gulf Bonding Company v. Board of Pardons and Paroles). 1981875. Supreme Court of Alabama. September 20, 2000. Rehearing Denied December 15, 2000. *775 Gregory O. Griffin, Sr., chief counsel, Alabama Board of Pardons and Paroles; and Steve M. Sirmon and Hugh Davis, asst. attys. gen., Alabama Board of Pardons and Paroles. Alvin T. Prestwood and Jamie A. Durham of Volz, Prestwood & Hanan, P.C., Montgomery, for respondents. PER CURIAM. On March 29, 1995, George C. Esensoy was arrested and charged with trafficking in cocaine. Gulf Bonding Company posted a $50,000 bond for his release. On the day of Esensoy's trial, he left during a lunch break and did not return. The Cullman Circuit Court ordered that his bond be forfeited. The forfeiture was made final on March 16, 1996. Esensoy voluntarily surrendered on May 23, 1996. He was subsequently convicted of trafficking in cocaine, in August 1996, and was sentenced to 30 years of imprisonment. On September 10, 1996, Gulf Bonding moved the Cullman Circuit Court for remission of its bond. The court denied the request.[1] On January 28, 1997, the bonding company submitted a remission-of-forfeiture request to the Board of Pardons and Paroles. The Board denied the request on March 3, 1997, without conducting a hearing. On May 5, 1997, Esensoy and Gulf Bonding filed a notice of appeal, and a petition for certiorari review, in the Montgomery Circuit Court. They claimed that the Board had acted capriciously, unreasonably, arbitrarily, and without the required due process in denying the request for remission of the bond forfeiture. The Board filed an answer and a motion for summary judgment. On September 2, 1997, while the motion for summary judgment was pending, the Board held a hearing on the request for remission of forfeiture, and it again denied the request. The court granted the Board's renewed motion for summary judgment and entered a summary judgment in favor of the Board. Esensoy and Gulf Bonding appealed. The Court of Civil Appeals reversed the summary judgment and remanded the case to the circuit court, instructing it to *776 remand the case to the Board for further proceedings. The Court of Civil Appeals held that "the Board's decision was not supported by any legal evidence demonstrating that the bonding company did not at all times exercise due diligence in attempting to produce the defendant." Esensoy v. Board of Pardons & Paroles, 793 So. 2d 769, 773 (Ala.Civ.App.1999). We granted the Board's petition for certiorari review of the Court of Civil Appeals' judgment reversing the summary judgment in favor of the Board. We reverse and remand. The Board argues that the Court of Civil Appeals lacked jurisdiction to review the Board's denial of the request for remission of forfeiture. The Governor has authority to grant reprieves and commutations of sentences for persons under the sentence of death, while "the legislature [has the] power to provide for and to regulate the administration of pardons, paroles, remission of fines and forfeitures, and may authorize the courts having criminal jurisdiction to suspend sentence and to order probation." Amend. No. 38, Ala. Const. of 1901. Under § 124, Ala. Const. of 1901, the executive branch had the power to remit fines and forfeitures. Amendment No. 38 transferred that authority the Legislature, and the Legislature, in turn, gave this power to the Board of Pardons and Paroles,[2] and it also initially gave that power to the courts in certain counties of this state.[3]Swift v. Esdale, 293 Ala. 520, 306 So. 2d 268 (1975). The Legislature has not provided a judicial remedy for persons aggrieved by determinations of the Board made while the Board is exercising its authority to remit fines and forfeitures. Actions of an administrative board or commission are generally subject to judicial review if that agency comes within the scope of the Alabama Administrative Procedure Act ("AAPA"), §§ 41-22-1 through -27, Ala.Code 1975. See Sellers v. State, 586 So. 2d 994 (Ala.Crim. App.1991). The Board, however, is exempt from the AAPA, and no other right of review from the actions of the Board has been provided by statute. Sellers, 586 So. 2d at 995 (citing § 41-22-3(3), Ala.Code 1975). In the absence of a statutory right to appeal, or any other adequate remedy, a common-law writ of certiorari lies to review the rulings of an administrative board or commission. Ellard v. State, 474 So. 2d 743, 748 (Ala.Crim.App.1984), aff'd, 474 So. 2d 758 (Ala.1985). After the Board of Pardons and Paroles denied Gulf Bonding's application for remission of the bond forfeiture, Gulf Bonding properly petitioned the Montgomery Circuit Court for a writ of certiorari. The trial court granted the Board's motion for summary judgment. Thereafter, the bonding company petitioned this Court for a common-law writ of certiorari. This Court transferred the petition to the Court of Civil Appeals, pursuant to § 12-2-7(6), Ala.Code 1975, authorizing this Court to transfer to the Court of Civil Appeals cases coming within the appellate jurisdiction of this Court. The Court of Civil Appeals transferred the case to the Court of Criminal Appeals, acting pursuant to Rule 3(c), Ala.R.App.P., which authorizes an appellate court to treat a designation of the wrong appellate court as a clerical error and to take necessary steps to docket the appeal in the appropriate appellate court. *777 The Court of Criminal Appeals concluded that the Court of Civil Appeals had jurisdiction of the case, pursuant to § 12-3-10, which gives the Court of Civil Appeals exclusive jurisdiction of cases having an amount in controversy not in excess of $50,000, and it transferred the case back to the Court of Civil Appeals. This Court has historically recognized that a proceeding involving a bond forfeiture is civil in nature. See Ex parte Moore, 244 Ala. 28, 29, 12 So. 2d 77, 77 (1942) ("This procedure [for the forfeiture of a bail bond] is in the nature of a civil action distinct from the original case, which latter is usually criminal. It leads to a final civil judgment, from which an appeal lies to this court, as in other civil cases."). Its civil nature is now codified. See § 12-17-225.6, Ala.Code 1975.[4] The Court of Civil Appeals has reviewed a trial court's refusal to remit a forfeiture pursuant to § 15-13-139, Ala.Code 1975. See, e.g., Wells v. State, 675 So. 2d 886 (Ala.Civ. App.1996) (alleging an amount in controversy of $50,000); see also Darby v. State, 516 So. 2d 775, 781 (Ala.Crim.App.1986), rev'd on other grounds, 516 So. 2d 786 (Ala. 1987) (holding that a challenge to a forfeiture of property allegedly seized in connection with illegal drug activity was civil in nature and therefore beyond the jurisdiction of the Court of Criminal Appeals). Because the amount of the bond in this proceeding was $50,000, the Court of Civil Appeals properly exercised jurisdiction pursuant to § 12-3-10, notwithstanding that the case reached the Court of Civil Appeals pursuant to § 12-2-7(6), authorizing the transfer of appeals within the appellate jurisdiction of the Supreme Court.[5] We must now determine whether the Court of Civil Appeals erred in reversing the summary judgment in favor of the Board. The Court of Civil Appeals correctly noted that "[t]he remission of forfeitures is neither a right nor a privilege, but an act of grace." Esensoy, 793 So. 2d at 773 (quoting In re Sixty Seven Thousand Four Hundred Seventy Dollars, 901 F.2d 1540, 1543 (11th Cir.1990)). In In re $67,470.00 ($67,470.00), the petitioners sought to recover currency the Drug Enforcement Administration had seized based on probable cause to believe the money had been used in an unlawful narcotics transaction. The United States Court of Appeals for the Eleventh Circuit noted that "federal courts are generally prohibited from reviewing agency forfeiture decisions even where it is alleged that the Secretary abused his discretion." In re $67,470.00, supra, at 1544. The court held that federal courts have jurisdiction over an agency's forfeiture decision only under narrow circumstances, and it stated two circumstances under which a federal court would have such jurisdiction: (1) the court would have jurisdiction when the agency does not consider a request that it exercise its jurisdiction; and (2) the court may exercise equitable jurisdiction over agency forfeiture decisions under limited circumstances. The court warned that a "decision to invoke equitable jurisdiction is highly discretionary and must be exercised with caution and restraint." Id. *778 Section 15-22-36 requires the Board to state its reasons for granting a remission of a forfeiture. The Legislature has not required the Board to detail its reasons for denying a remission of a forfeiture.[6] Once a forfeiture is made final, the money forfeited becomes "public money of the State General Fund." See Ala.Code 1975, § 15-13-130.[7] When Esensoy failed to return for the completion of his trial, the bond was forfeited. Once the forfeiture was made final, the money became the property of the State, and remission of any portion of the amount forfeited would have been an act of grace. Therefore, applying the same rationale applied by the Eleventh Circuit in In re $67,470.00, we hold that judicial review of the Board's denial of a request for remission of a fine or forfeiture is limited to those situations where the Board has failed to consider a request that it exercise its discretion or where there is justification for the court's exercising its equitable jurisdiction. The Board did not refuse to review Gulf Bonding's request. The second circumstance under which judicial review would be permissible, where there is justification for the court's exercising its equitable jurisdiction, is not applicable in this case. Therefore, the Court of Civil Appeals erred in reversing the judgment of the trial court. We reverse the judgment of the Court of Civil Appeals and remand this case with instructions for that court to reinstate the trial court's judgment. REVERSED AND REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. BROWN, J., recuses herself.[*] [1] Esensoy and Gulf Bonding did not appeal the Cullman Circuit Court's order denying their request for remission of the bond forfeiture. [2] Section 15-22-36 authorizes the Board to remit fines and forfeitures. [3] Section 15-13-139, Ala.Code 1975, enacted as a part of the Alabama Bail Reform Act of 1993, authorizes the trial court that entered the final judgment of forfeiture to remit the whole or any portion of the penalty of the bail or undertaking. [4] "In addition to the provisions of this division, all court costs, fines, victim compensation assessments, bail bond forfeitures, and restitution, and other court-ordered charges, including the collection fee of a court of competent jurisdiction in this state, shall be considered civil judgements which can be recorded and enforced in the manner provided by law." (Emphasis added.) [5] With the benefit of hindsight, this Court can see that it should have transferred this case to the Court of Civil Appeals pursuant to Rule 3(c), Ala.R.App.P. [6] This fact suggests that the Legislature intended that the Board's decision to grant a remission of a fine or forfeiture be subject to greater scrutiny. [7] Section 15-13-130, Ala.Code 1975, read as follows at the time of the forfeiture in this case: "The basis of all undertakings of bail, whether upon a warrant, writ of arrest, suspension of judgment, writ of error, or in any other case, is to ensure the appearance of the defendant in court, and the undertaking is forfeited by the failure of the defendant to appear. "If, by reason of the neglect of the defendant to appear, money is deposited as cash bail and is forfeited and the forfeiture is not discharged or remitted, the clerk with whom it is deposited shall, at the end of 30 days, unless the court has before that time discharged the forfeiture, pay over the money deposited to the officer, official, or employee authorized by law to receive fines levied by the court. The court shall then, without any notice to the defendant, render judgment absolute for the entire sum deposited and the money shall then become public money of the State General Fund or in bail forfeiture cases pending in the municipal courts such sums shall become public money of the municipality." [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

September 20, 2000

a2af0f34-bd2f-46be-bd48-4f25080df015

State v. Armstrong

779 So. 2d 1211

1981560

Alabama

Alabama Supreme Court

779 So. 2d 1211 (2000) STATE of Alabama v. Virgil E. ARMSTRONG and Ann Neita Armstrong. 1981560. Supreme Court of Alabama. September 1, 2000. *1212 Warren C. Herlong, Jr., and Joseph D. Steadman of Helmsing, Sims & Leach, P.C., Mobile (briefs on rehearing filed by Warren C. Herlong, Jr., of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile; and Joseph D. Steadman of Sims, Graddick & Dodson, P.C., Mobile), for appellant. Robert S. Presto of Caffey, Presto & Associates, P.C., Brewton, for appellees. SEE, Justice. The opinion of April 28, 2000, is withdrawn, and the following is substituted therefor. In this condemnation action, the circuit court awarded the landowners their litigation expenses, including an attorney fee. The State appeals, arguing that the award was not authorized. We agree. Therefore, we reverse the judgment to the extent it awarded those expenses. The State has not challenged any other portions of the condemnation judgment. We remand the case for the circuit court to amend its judgment to make it consistent with this opinion. Virgil Armstrong and Ann Neita Armstrong owned a 4.4-acre parcel of land in Escambia County; their residence was on that land. In order to widen U.S. Highway 31, the State sought a 1.68-acre strip of land running through the Armstrongs' property. The State's taking that 1.68-acre strip would leave the Armstrongs with two parcels: a 1.6-acre parcel on which their house is located and a 1.12-acre unimproved parcel on the other side of the highway. The State offered the Armstrongs $88,050 for the strip of land and the improvements on it. The Armstrongs refused that offer. The State commenced a condemnation proceeding in the Escambia Probate Court, in accordance with Ala.Code 1975, § 18-1A-71 et seq. The result was a determination *1213 that the Armstrongs were entitled to $210,015 as just compensation for the taking. The State appealed to the circuit court for a trial de novo. While the case was pending in the circuit court, the Armstrongs, with the circuit court's permission and over the State's objection, filed a "counterclaim for inverse condemnation," arguing that the State must acquire, and pay for, the entire 4.4-acre parcel. After all the evidence had been presented, the State moved for a judgment as a matter of law on the counterclaim. The circuit court denied that motion. The Armstrongs requested that the jury be given, in addition to a verdict form by which it was to assess just compensation for the taking, two interrogatories: "Do you find that the condemnation action initiated by the State of Alabama within this cause has damaged or injured any portion of the Armstrong real property not actually included within the condemned parcel?" and "If you[r] answer is `yes' to the foregoing question, has any portion of the damages awarded in this case been given as damages in response to the counterclaim presented by Mr. and Mrs. Armstrong alleging inverse condemnation?" Consistent with its position that the Armstrongs' counterclaim should not be presented to the jury, the State objected to the request for the interrogatories. Although it had denied the State's motion for a judgment as a matter of law on the counterclaim, the circuit court nevertheless sustained the State's objection to the interrogatories.[1] The court gave the jury a single verdict form that required only that the jury determine the amount of compensation to which the Armstrongs were entitled. The jury returned its verdict on that form, assessing just compensation at $148,250. The Armstrongs moved for a new trial or, in the alternative, for an award of litigation expenses, including attorney fees. They argued that they were entitled to a new trial because, they argued, the circuit court had erred in allowing the State to introduce evidence concerning properties that the State's appraiser had relied on as "comparable" properties for valuation purposes. They argued that they were entitled to litigation expenses because, they argued, they had prevailed on their inverse-condemnation counterclaim. See Ala.Code 1975, § 18-1A-32(b) ("The judgment and any settlement in an inverse condemnation action awarding or allowing compensation to the plaintiff for the taking or damaging of property by a condemnor shall include the plaintiffs litigation expenses"); § 18-1A-3(12) (defining "litigation expenses" as "[t]he sum of the costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, necessary to prepare for anticipated or participation in actual probate or circuit court proceedings"). The circuit court denied the Armstrongs' motion for a new trial, but granted their motion for an award of litigation expenses. The court then entered a judgment awarding the State the real property and improvements it had sought to acquire; awarding the Armstrongs $148,250 as compensation for the taking; and awarding the Armstrongs $21,070 for attorney fees and other litigation expenses. The State filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial, arguing that the Armstrongs were not entitled to an award of litigation expenses. That motion was denied by operation of law when the circuit court failed to rule on it within 90 days. See Rule 59.1, Ala.R.Civ.P. On appeal, the State again argues that the Armstrongs are not entitled to recover their litigation expenses. We agree. Regarding the power of eminent domain, this Court has stated that "`[i]n every government there is inherent authority to appropriate the property of the citizen for the necessities of the State, and constitutional provisions do not confer the power, though they surround it with safeguards to prevent abuse.'" Jones v. Nashville, Chattanooga & St. Louis Ry., 141 Ala. 388, 394, 37 So. 677, 679 (1904) (quoting Cooley's Const. Lim., 356-57). Alabama Power Co. v. Citizens of the State of Alabama, 740 So. 2d 371, 389 (Ala.1999). The Alabama Constitution of 1901 provides similar safeguards. See Ala. Const. of 1901, art. I, § 23, and art. XII, § 235. An entity with the power of eminent domain has a legal duty to commence a condemnation action to exercise that power. See Ala.Code 1975, § 18-1A-32(a). However, when the State takes property without initiating a condemnation action and without paying just compensation to the property owner, the property owner has a cause of action for "inverse condemnation," by which he can recover just compensation for the taking. See, e.g., Ex parte Carter, 395 So. 2d 65, 67 (Ala.1980). The Legislature has provided that a property owner who prevails in an inverse-condemnation action is entitled to recover litigation expenses in addition to just compensation for the taking. See Ala. Code 1975, § 18-1A-32(b). However, a landowner is not entitled to an award of litigation expenses in addition to just compensation when the condemning authority brings a direct-condemnation action against the landowner. See White v. State, 294 Ala. 502, 504, 319 So. 2d 247, 247-48 (1975). In White v. State, this Court held that, because no statute authorized the defendant in a condemnation action to recover attorney fees and other litigation expenses, the common-law rule applied, i.e., that "`[a]ttorney's fees and expenses are not embraced within the just compensation for land taken by eminent domain.'" 294 Ala. at 504, 319 So. 2d at 247 (quoting Dohany v. Rogers, 281 U.S. 362, 368, 50 S. Ct. 299, 74 L. Ed. 904 (1930)). This Court also noted that Alabama had not adopted the Uniform Eminent Domain Code, § 1205 of which provided for the defendant in a condemnation action to recover litigation expenses under certain circumstances. 294 Ala. at 505-06, 319 So. 2d at 249. Although Alabama did adopt portions of the Uniform Eminent Domain Code in 1985, see Ala.Code 1975, § 18-1A-1 et seq., it did not adopt § 1205. Therefore, the White rule still applies. When the condemning authority seeks to acquire less than all of a parcel of property, the landowner is entitled to "the difference between the fair market value of the entire property before the taking and the fair market value of the remainder after the taking." Ala.Code 1975, § 18-1A-170(b). Therefore, as a general rule, the landowner need not file an inversecondemnation counterclaim in order to recover the decrease in the value of the remainder of his property. To allow such a counterclaim would effectively overrule White and allow the landowner to recover litigation expenses in virtually every partial-taking case simply by asserting a counterclaim alleging inverse condemnation. *1215 We should not be misunderstood as stating that a landowner may never assert an inverse-condemnation counterclaim in a condemnation action. Clearly, if the condemning authority has actually or constructively taken more property than it seeks in its condemnation action, the landowner may assert an inverse-condemnation counterclaim to recover just compensation for the additional property taken. The Armstrongs asserted their inverse-condemnation counterclaim seeking to recover the fair market value of the entire 4.4 acre parcel. They argued, in reliance on Ala.Code 1975, § 18-1A-28, and State v. Brennan, 595 So. 2d 458 (Ala. 1992), that the State must acquire, and pay for, the entire parcel because, they contend, the entire parcel would be "adversely affected by the State's use of the real property that it was seeking to condemn." Brennan, 595 So. 2d at 461. Specifically, in support of their counterclaim they argue that § 18-1A-28 provides that when "a condemnor acquires an interest in any real property, [it] `shall also acquire at least an equal interest in all buildings, structures and other improvements ... which will be adversely affected by the use to which the real property will be put.'" (Omission in the counterclaim.) A reading of § 18-1A-28 in full does not support their position. That section provides, in full: (Emphasis added.) Thus, when a condemning authority acquires land, it must also acquire the improvements on that land if it requires that the improvements "be destroyed or removed" or if the improvements "will be adversely affected by the use to which the real property will be put." It is true that the landowner is entitled to "the difference between the fair market value of the entire property before the taking and the fair market value of the remainder after the taking," § 18-1A-170(b); however, we overrule State v. Brennan to the extent that it can be understood to hold that the condemning authority must acquire improvements not located on the land subject to direct condemnation simply because those improvements are "adversely affected by" the condemning authority's actions. The circuit court's award of litigation expenses would be proper only if the Armstrongs had prevailed on their counterclaim. However, no part of the jury's verdict indicates that the Armstrongs prevailed on their counterclaim.[2] Moreover, such a finding for the Armstrongs on their counterclaim would be inconsistent with the rest of the circuit court's judgment, which awards the State only the 1.68-acre parcel and the improvements thereonthe parcel the State sought to acquire in its direct-condemnation actionand not the remaining property that the Armstrongs, by their inversecondemnation counterclaim, sought to compel the State to acquire and pay for. Because nothing before this Court indicates that the Armstrongs succeeded on their counterclaim, we reverse the circuit court's award of litigation expenses to the Armstrongs.[3] We remand the case for *1216 that court to amend its judgment to make it consistent with this opinion. OPINION OF APRIL 28, 2000, WITHDRAWN; OPINION SUBSTITUTED; AWARD OF LITIGATION EXPENSES REVERSED; CASE REMANDED WITH INSTRUCTIONS; APPLICATION OVERRULED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. LYONS, J., recuses himself. [1] The court noted that the interrogatories submitted by the Armstrongs did not provide a way for the jury to indicate how much of the damages awarded were "in response to the counterclaim." The Armstrongs argued that the amount of damages awarded "in response to the counterclaim" was irrelevant because an answer indicating that they did prevail on the counterclaim was all that would be necessary to support an award of litigation expenses. [2] The Armstrongs did object to the circuit court's failure to submit to the jury their requested interrogatories. However, the trial court did not abuse its discretion under Rule 49, Ala.R.Civ.P., in denying that request. The requested interrogatories did not ask the jury how much of the compensation was based on the inverse-condemnation counterclaim, nor did they provide any way for the jury to indicate what property it found the State to have actually or constructively taken other than the 1.68-acre parcel that was the subject of the State's direct condemnation action. [3] The Armstrongs argue that the State cannot complain about the trial court's award of litigation expenses because, they argue, the State invited this error by objecting to their proposed special interrogatories. This argument, however, is misplaced. We recognize the "invited-error rule," the principle that "a party may not avail himself of error into which he has led the court." USA Petroleum Corp. v. 770 So. 2d 589, 595 (Ala.1999). The State's objection to the special verdict form did not "lead" the trial court into awarding litigation expenses to the Armstrongs. The fact that the trial court submitted a general verdict form to the jury actually "leads" to the opposite result-the denial of litigation expenses. Moreover, as we explained in note 2, the trial court did not improperly deny the Armstrongs' requested interrogatories.

September 1, 2000

34330b6e-6d7f-4f70-b55c-707de37ced66

WIMPEE EX REL. JOHNSTON v. Stella

791 So. 2d 915

1971774

Alabama

Alabama Supreme Court

791 So. 2d 915 (2000) Kaytlin F. WIMPEE, by her mother and next friend Christy Lee JOHNSTON; and Christy Lee Johnston, individually v. Dr. Felicia STELLA and Dr. Scott Striplin. 1971774. Supreme Court of Alabama. September 1, 2000. Rehearing Denied November 22, 2000. *916 Michael A. Worel and David G. Wirtes, Jr., of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile, for appellants. W. Boyd Reeves, M. Kathleen Miller, Timothy D. Ryan, and Christopher B. Estes of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, L.L.C., Mobile, for appellees. BROWN, Justice. The memorandum of November 24, 1999, is withdrawn and the following opinion is substituted therefor. The plaintiffs Kaytlin F. Wimpee and Christy Lee Johnston appeal from a summary judgment entered in favor of the defendants Dr. Felicia Stella and Dr. Scott Striplin. Around 4:30 a.m. on June 29, 1994, Christy Lee Johnston, age 20, arrived at the University of South Alabama Medical Center ("USA Medical Center") in labor. Dr. Stella, a fourth-year resident, and Dr. Striplin, a first-year resident/intern, provided care and treatment to Johnston during her labor and the subsequent delivery of her daughter, Kaytlin Wimpee. The State of Alabama owns and operates the University of South Alabama ("USA"). USA, in turn, owns and operates USA Medical Center. In June 1994, USA employed both Dr. Stella and Dr. Striplin as residents in training, and they were assigned to USA Medical Center. USA paid Drs. Stella and Striplin a regular salary at all times while they were residents. Both Dr. Stella and Dr. Striplin were working in the line and scope of their employment as residents with USA at all times during the events at issue in this case. Upon Johnston's admission to USA Medical Center, the baby's condition was monitored by several electronic devices, including a fetal-heart monitor and a fetalscalp electrode. Johnston was also administered Pitocin, to augment labor and delivery. After Johnston was administered the Pitocin, her contractions increased. Johnston contends that the fetal monitors demonstrated changes in the baby's condition and that the changes indicated fetal distress and necessitated the discontinuation of Pitocin. Drs. Stella and Striplin assert that there was no evidence to indicate that the baby was in fetal distress, and, thus, that there was no reason to discontinue the Pitocin. According to Johnston, Dr. Stella initially informed her that a cesarean-section delivery was warranted[1] and she was moved to a delivery *917 room where a cesarean delivery could be performed. Once in the delivery room, however, Drs. Stella and Striplin delivered the child vaginally by the use of a vacuum extractor. Within two hours of her birth, the child, named Kaytlin, experienced seizures, which one physician attributed to "perinatal asyphxia and ischemia." Kaytlin presently suffers from a seizure disorder and has motor defects on her left side. Johnston, individually and on behalf of her daughter Kaytlin Wimpee, filed a medical-malpractice action against Drs. Stella and Striplin. Specifically, Johnston contends that Drs. Stella and Striplin negligently or wantonly failed to perform a cesarean section and that, because of their alleged medical negligence or wantonness, Kaytlin suffered serious injuries. Both Dr. Stella and Dr. Striplin filed a motion for summary judgment. Following a hearing, the trial court entered a summary judgment in favor of Drs. Stella and Striplin on the ground that they were immune from suit, as employees of USA Medical Center engaging in discretionary functions. Wimpee and Johnston appealed. They contend that the trial court erred in holding that Drs. Stella and Striplin, as employees of USA Medical Center, were immune from liability on the basis that the actions complained of occurred while they were engaged in performing discretionary functions. Our review of a summary judgment is de novo. Hobson v. American Cast Iron Pipe Co., 690 So. 2d 341, 344 (Ala.1997). Wimpee and Johnston argue that Drs. Stella and Striplin were not entitled to discretionary-function immunityi.e., State-agent immunitybecause, as residents, they were subject to clearly delineated policies and procedures and worked within well-defined limits. Thus, they claim, Dr. Stella and Dr. Striplin's treatment of Johnston involved ministerial acts, rather than discretionary acts. Are Drs. Stella and Striplin protected from Wimpee and Johnston's claims by the doctrine of State-agent immunity? Our recent decision in Ex parte Cranman, 792 So. 2d 392 (Ala.2000), traces the evolution of State-agent immunity, restates the law *918 of State-agent immunity, and, according to that restatement, decides this issue; that is, whether a physician employed by a state university in its health facility is immune from claims alleging negligence in treating a patient at that health facility. Cranman holds that the physician is not protected by the doctrine of State-agent immunity: 792 So. 2d at 405. Dr. Stella and Dr. Striplin's treatment of Christy Lee Johnston does not fit within any of the categories of immune State-agent conduct set out in the Cranman restatement. Despite being State-employed physicians, Drs. Stella and Striplin are not immune from liability for the claims asserted by the plaintiffs. See also Ex parte Flynn, 776 So. 2d 99 (Ala. 2000), and Ex parte Rizk, 791 So. 2d 911 (Ala.2000). The trial judge erroneously entered the summary judgment for Drs. Stella and Striplin. That judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion. APPLICATION GRANTED; MEMORANDUM OF NOVEMBER 24, 1999, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED. HOOPER, C.J., and HOUSTON, COOK, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. MADDOX and SEE, JJ., dissent. SEE, Justice (dissenting). I dissent from the reversal of the summary judgment entered in favor of the defendant resident physicians, Drs. Stella and Striplin. I would affirm the summary *919 judgment, on the ground that Drs. Stella and Striplin are entitled to discretionary-function, or State-agent, immunity. I dissent for the reasons stated in my dissent in Ex parte Cranman, 792 So. 2d 392, 413 (Ala.2000) (substituted opinion on application for rehearing). I would apply to the facts of this case the balancing test stated in the November 14, 1999, Cranman opinion withdrawn by this Court on June 16, 2000: (See my dissent in Cranman, 792 So. 2d at 414-15, where I quote from the withdrawn opinion.) Drs. Stella and Striplin, in treating their patient Christy Johnson and her newborn, Kaytlin, were engaged in discretionary functions. See Smith v. Arnold, 564 So. 2d 873 (Ala.1990); Smith v. King, 615 So. 2d 69 (Ala.1993). The Alabama Legislature established the University of South Alabama as "a state institution of higher learning" and in order "to carry into effect the [Legislature's] purposes," and authorized the governing body of the University, the board of trustees, to "prescribe courses of instruction" and to "do whatever else they may consider in the best interest of the institution." Ala.Code 1975, §§ 16-55-1 and 16-55-4. In furtherance of its educational purpose, the University has created a college of medicine, and, in conjunction with the college of medicine, the University owns and operates the University of South Alabama Medical Center ("USAMC").[2] See § 16-55-3 (authorizing the board of trustees to hold and dispose of any real and personal property). The USAMC provides medical education and training to medical students and resident physicians. As resident physicians employed by the University, Drs. Stella and Striplin were furthering the educational purpose of the University and its college of medicine when they provided medical care and treatment to Ms. Johnson and her baby.[3] The denial of State-agent immunity *920 to Drs. Stella and Striplin and other resident physicians at the University would be expected to hinder the educational purpose of the University by impeding the University's ability to attract, educate, and train medical students and resident physicians, and it would thereby reduce the availability of qualified physicians for the citizens of the State of Alabama. Therefore, "because [Drs. Stella and Striplin] were exercising a discretionary function and because it does not appear in this case that the burden on the plaintiff[s] significantly outweighs the benefits of applying State-agent immunity to [Drs. Stella and Striplin], the balance of the § 13 and § 14 [Alabama Constitution] policies, in light of § 43, favors the application of discretionary-function immunity to [Drs. Stella and Striplin] in the performance of their University-related health-care responsibilities." Ex parte Cranman, 792 So. 2d at 417 (on application for rehearing) (See, J., dissenting). I therefore dissent from the reversal of the trial court's judgment. [1] Drs. Stella and Striplin also dispute this contention. [2] In Sarradett v. University of South Alabama, 484 So. 2d 426, 427 (Ala.1986), this Court held that in operating the USAMC the University is performing a governmental function, and, thus, that the USAMC is a state entity immune from suit under the Alabama Constitution of 1901, art. I, § 14. [3] This Court has held that state-employed physicians engage in discretionary functions in making health-care decisions. See, e.g., Smith v. Arnold, 564 So. 2d 873 (Ala.1990). Although this factor alone is not determinative, it does favor the application of Stateagent immunity. See this Court's June 16, 2000, opinion in Ex parte Cranman, 792 So. 2d at 413 (See, J., dissenting).

September 1, 2000

8023171a-90b0-4771-8742-c6351ad1695c

Southern Energy Homes, Inc. v. McCray

788 So. 2d 882

1991435

Alabama

Alabama Supreme Court

788 So. 2d 882 (2000) SOUTHERN ENERGY HOMES, INC. v. Bobby McCRAY and Annie McCray. 1991435. Supreme Court of Alabama. December 1, 2000. *883 John Martin Galese, Jeffrey L. Ingram, and David A. Norris of Galese & Ingram, P.C., Birmingham, for appellant. Jeffrey C. Kirby of Pittman, Hooks, Dutton & Hollis, P.C., Birmingham, for appellees. PER CURIAM. Southern Energy Homes, Inc., appeals from an order denying its motion to compel the arbitration of claims presented in a putative class action commenced against it by Bobby McCray and Annie McCray. We reverse and remand. This dispute began on August 12, 1996, when Bobby McCray and Annie McCray purchased a mobile home from Southland Quality Homes, Inc. ("Southland"), in Dothan. The home had been manufactured by Southern Energy Homes, Inc. ("Southern Energy"), at its Winston County plant. It was installed on the McCrays' property in Barbour County. The McCrays sued Southern Energy and Southland, claiming to have "discovered defects in the mobile home." The McCrays also alleged that they had "repeatedly contacted the Defendants to fix, repair and/or replace the defects in the mobile home," but that the "Defendants... failed to correct [the] defects after proper notice [had] been repeatedly given." They alleged that the Defendants' "representatives, agents, servants and/or employees" made service calls to the home but that "numerous defects in the home... remain." Southern Energy moved to compel arbitration of the McCrays' claims, on the basis of arbitration provisions contained (1) in a document entitled "Southern Energy Warranty Limited One Year/Five Year Warranty" (this document accompanied the mobile home when the McCrays took delivery of it) and (2) in a freestanding document executed by the McCrays and Southland at the time of the purchase. On March 21, 2000, the trial court, relying on Southern Energy Homes, Inc. v. Lee, 732 So. 2d 994 (Ala.1999), overruled, Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131 (Ala.2000), entered an order denying the motion to compel arbitration. Southern Energy appealed. In support of the trial court's order, the McCrays contend that the transaction out of which their lawsuit arose, i.e., their purchase of the mobile home, did not involve interstate commerce. We disagree. An Alabama resident's purchase of a new mobile homeeven one manufactured in Alabamacan be a transaction that substantially affects interstate commerce, and the evidence indicates that the McCrays' purchase of their mobile home was such a transaction.[1] The McCrays next urge this Court to overrule Ard, which, less than two months after the trial court had entered its *884 order denying the motion to compel arbitration, overruled Lee, on which the trial court relied. In Ard, we held that the Magnuson-Moss WarrantyFederal Trade Commission Improvement Act, 15 U.S.C. § 2301 et seq., does not "invalidate[ ] arbitration provisions in a written warranty issued by a manufacturer of consumer goods." Ard, at 1135. We decline to overrule that holding in Ard; therefore, Ard controls this case.[2] Consequently, on the authority of Ard, the order denying arbitration is reversed, and this cause is remanded. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, SEE, LYONS, and BROWN, JJ., concur. HOUSTON, J., concurs specially. COOK, JOHNSTONE, and ENGLAND, JJ., concur in part and dissent in part. HOUSTON, Justice (concurring specially). "For everything its season, and for every activity under heaven its time."[3] Although I think Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131 (Ala. 2000), was incorrectly decided, for the reasons stated in my dissents in that case, in Ex parte Brown, 781 So. 2d 178 (Ala.2000), and Harold Allen's Mobile Home Factory Outlet v. Early, 776 So. 2d 777 (Ala.2000), the Ard holding is the law; and it is time for me to recognize it as the law of the State of Alabama and to follow it. I concur. COOK, Justice (concurring in part and dissenting in part). I concur in the holding that this transaction substantially involves interstate commerce. However, I dissent from the holding that the Magnuson-Moss Warranty Federal Trade Commission Improvement Act, 15 U.S.C. § 2301 et seq., does not "invalidate[ ] arbitration provisions in a written warranty issued by a manufacturer of consumer goods." I dissent for the reasons expressed in the dissent I joined in Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131 (Ala.2000) (Johnstone, J., dissenting). JOHNSTONE and ENGLAND, JJ., concur. [1] By affidavit, Southern Energy showed the following facts: "Southern Energy Homes, Inc. is a Delaware corporation. Its stock is publicly traded and held by citizens of many states. It manufactures homes at multiple manufacturing facilities in Alabama and in other states. The funds it uses to conduct its business operations, including the construction of the subject home, come from banking institutions located in multiple states. The homes which it manufactures, including the Plaintiffs' home, incorporate materials, including plumbing parts, electrical parts, aluminum products, steel products, appliances, wood products and fabrics, which it acquires from suppliers outside of Alabama, and from throughout the United States, which are shipped to the manufacturing plant in Winston County, Alabama, where the subject home was manufactured." [2] This case is distinguishable from Southern Energy Homes, Inc. v. Hennis, 776 So. 2d 105 (Ala.2000). Unlike the McCrays, the purchaser in Hennis did nothing to invoke Southern Energy's warranty provisions. Consequently, he manifested no assent to the warranty or to the arbitration provision contained therein. [3] Ecclesiastes 3:1 (The New English Bible 1970).

December 1, 2000

d23dd513-c96d-49f5-b1dd-889e974c500d

Ex Parte CTB, Inc.

782 So. 2d 188

1990119

Alabama

Alabama Supreme Court

782 So. 2d 188 (2000) Ex parte CTB, INC. (Re Joe Murphy v. CTB, INC., et al.) 1990119. Supreme Court of Alabama. July 28, 2000. Rehearing Denied October 27, 2000. *190 F. Chadwick Morriss, Mitch Henry, and William H. Webster of Rushton, Stakely, Johnson & Garrett, P.A., Montgomery, for petitioner. Jere L. Beasley and Tiernan W. Luck III of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for respondent. PER CURIAM. CTB, Inc., a defendant in an action pending in the Pike Circuit Court, petitions for a writ of mandamus directing the circuit court to enforce a clause in its contract with the plaintiff Joe Murphya clause it refers to as an "outbound" forum selection clauseby dismissing the plaintiff's action without prejudice. We deny the writ. In 1998, Joe Murphy, a poultry grower in Pike County, contracted to become a poultry grower with Charoen Pokphand (USA), Inc., an international poultry integrator from Thailand. Under Murphy's agreement with Pokphand, he was required to have CTB construct the broiler houses in which to grow the chickens. Murphy ultimately entered a $496,000 contract with CTB for it to construct four broiler houses. The contract contained this clause: In June 1999, Murphy sued CTB over the quality of CTB's performance, asserting breach of contract, fraud, negligence, wantonness, intentional interference with business and contractual relations, and conspiracy.[1] CTB moved "to dismiss, or, in the alternative for a more definite statement, or, in the alternative, ... to transfer," raising, among other things, the contract's Paragraph 21. The trial court denied the motion. Although this Court has previously held that "outbound" forum-selection clauses providing for a trial outside Alabama are "agreements concerning jurisdiction," Professional Ins. Corp. v. Sutherland, 700 So. 2d 347, 351 (Ala.1997), we now recognize that such agreements actually "implicate the venue of a court, and not its subject-matter jurisdiction." O'Brien Eng'g Co. v. Continental Machs., Inc., 738 So. 2d 844, 849 (Ala.1999) (See, J., dissenting). "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." Ex parte National Security Ins. Co., 727 So. 2d 788, 789 (Ala.1998). "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). In Sutherland, this Court adopted the majority rule, by which an "outbound" forum-selection clause is upheld unless the party challenging the clause clearly establishes that it would be unfair or unreasonable under the circumstances *191 to hold the parties to their bargain. 700 So. 2d at 351. The challenging party can meet its burden by clearly establishing "(1) that enforcement of the forum selection clause[ ] would be unfair on the basis that the contract[ ][was] affected by fraud, undue influence, or overweening bargaining power or (2) that enforcement would be unreasonable on the basis that the chosen ... forum would be seriously inconvenient for the trial of the action." Id. at 352. Because "[i]t is a difficult burden to defeat a forum selection clause[,]" Smith v. Professional Claims, Inc., 19 F. Supp. 2d 1276, 1282 (M.D.Ala. 1998), such clauses will usually be enforced. Murphy concedes that the contract was not affected by either fraud or undue influence. He argues, however, that enforcement of the forum-selection clause would be unfair because, he says, he "had no meaningful choice in the selection of the contractor to build the broiler houses" and because the forum selection clause was contained in a "preprinted" contract. We have carefully considered the arguments of the parties concerning the reasonableness of enforcing the forum-selection clause. However, we find it unnecessary to address those arguments, because the trial court's order is due to be upheld for a more fundamental reason. It is well established that even in a direct appeal, where our standard of review is much less stringent than the standard by which we review a petition for the writ of mandamus, this Court must affirm the judgment of the trial court if that judgment is supported by any valid legal ground, even if that ground was not argued before the trial court or this Court. Smith v. Equifax Servs., Inc., 537 So. 2d 463, 465 (Ala.1988). As we noted, the clause at issue in the contract between CTB and Murphy reads: Clearly, under this clause, Indiana law must be applied wherever an action is filed; however, we see nothing in the clause that compels Murphy to file his claim in the federal or state courts located in Indiana. By this clause, Murphy waives the right to claim lack of personal jurisdiction in the event an action is filed against him in Indiana to "construe" or "enforce" the contract; however, nothing in the clause requires that any action involving these parties be filed in Indiana.[2] This clause is different from the clause construed in Professional Insurance Corp. v. Sutherland, supra; that clause read, in part: 700 So. 2d at 349 (emphasis added). It is also different from the outbound forum-selection clauses that this Court enforced in O'Brien Eng'g Co. v. Continental Machs., Inc., supra, and Ex parte Northern Capital Resource Corp., 751 So. 2d 12, 13 (Ala.1999). Because CTB drafted the clause, together with the entire contract containing the clause, we must construe the contract most strictly against CTB. See Premiere *192 Chevrolet, Inc. v. Headrick, 748 So. 2d 891 (Ala.1999); Rogers Found. Repair, Inc. v. Powell, 748 So. 2d 869 (Ala. 1999); and Jewell v. Jackson & Whitsitt Cotton Co., 294 Ala. 112, 313 So. 2d 157 (1975). Given this construction of the contract, we conclude that CTB has failed to establish the "clear legal right" required for the issuance of a writ of mandamus. See Ex parte Integon Corp., supra. The petition for the writ of mandamus is denied. WRIT DENIED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. SEE, J., concurs specially. SEE, Justice (concurring specially). I concur. I write specially to address the fact that Murphy does not dispute CTB's argument that Paragraph 21 of the parties' contract, which CTB calls a forum-selection clause, mandates that all actions related to the parties' contract be filed in Indiana. One might infer from the fact that Murphy does not dispute CTB's argument, that Murphy agrees to that interpretation of the provision. Although "[t]he intention of the parties controls in construing a written contract, ... the intention of the parties is to be derived from the contract itself, where the language is plain and unambiguous." Loerch v. National Bank of Commerce of Birmingham, 624 So. 2d 552, 553 (Ala.1993). Thus, "if a written contract exists [and the terms of the contract are not ambiguous], the rights of the parties are controlled by that contract and parol evidence is not admissible to contradict, vary, add to, or subtract from its terms." Marriott Int'l, Inc. v. deCelle, 722 So. 2d 760, 762 (Ala.1998); see also Ex parte South Carolina Ins. Co., 683 So. 2d 987, 989 (Ala.1996) ("It is settled law that if 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."). The question whether a contract is ambiguous is a question of law. Ex parte Conaway, 767 So. 2d 1117 (Ala.2000); Sealing Equip. Prods. Co. v. Velarde, 644 So. 2d 904, 908 (Ala.1994). The paragraph at issue here provides that Murphy "consents to jurisdiction and venue in the Federal and State Courts located in Indiana." This language is not ambiguous. It clearly means that Murphy expressly consents to the personal jurisdiction of Indiana courts. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n. 14, 481-82, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985). It does not require that all actions concerning the contract be filed in Indiana. Because this language is plain and unambiguous, neither Murphy nor CTB can vary or contradict it, and this Court must enforce it as written. Accordingly, I conclude that the trial properly denied CTB's motion to dismiss for improper venue. [1] Murphy also sued Farm Systems, Inc., James Justice, Jr., and several fictitiously named defendants. These parties, however, are not before this Court. [2] See John Boutari & Son, Wines & Spirits, S.A. v. Attiki Importers & Distribs. Inc., 22 F.3d 51, 52 (2d Cir.1994); Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 76 (9th Cir.1987).

July 28, 2000

8ce812b3-8f08-4107-bdae-5f79d673d50a

Ex Parte Wilkerson

795 So. 2d 663

1990769

Alabama

Alabama Supreme Court

795 So. 2d 663 (2000) Ex parte Thomas Edison WILKERSON. (Re Thomas Edison Wilkerson v. Burlington Northern Railroad Company and Illinois Central Railroad Company). 1990769. Supreme Court of Alabama. September 8, 2000. Rehearing Denied January 5, 2001. *664 Ronald T. Dudley, Jr., of Environmental Litigation Group, P.C., Birmingham, for petitioner. Turner B. Williams, J. Clinton Pittman, and Kevin T. Shires of Sadler Sullivan, Birmingham, for respondent Burlington Northern Railroad Company. Robert D. Anderkanic of Gundlach, Lee, Eggmann, Boyle & Roessler, Belleville, Illinois; and Michael D. Quillen of Walston, Wells, Anderson & Bains, Birmingham, for respondent Illinois Central Railroad Company. MADDOX, Justice. This case presents the question whether the statute of limitations bars the plaintiffs action to recover damages for injuries he alleges he suffered as a result of an alleged workplace exposure to asbestos. For the reasons discussed below, we conclude that that question may not be answered until a jury determines when the plaintiffs cause of action accrued. Thomas Edison Wilkerson sued his former employers, Burlington Northern Railroad Company ("Burlington") and Illinois Central Railroad Company ("Illinois Central"), alleging "severe injury to his body and respiratory system, resulting in ... impairment, disability and occupationally related disease." He claims the injury was caused by exposure to asbestos over a roughly 30-year period he worked for the defendants. He also alleged: The defendants moved for a summary judgment; the trial court granted their motions. Wilkerson appealed to this Court from the summary judgment for the defendants. Pursuant to § 12-2-7(6), Ala. Code 1975, this Court transferred the appeal to the Court of Civil Appeals. The Court of Civil Appeals affirmed. Wilkerson v. Burlington N. R.R., 795 So. 2d 657 (Ala.Civ.App.1999). We granted Wilkerson's petition for certiorari review. We now reverse and remand. The trial court entered the summary judgment on the conclusion that Wilkerson had not filed his action within the three-year statute-of-limitations period of the Federal Employers' Liability Act ("FELA"). See 45 U.S.C. § 56. The Court of Civil Appeals affirmed, on the same rationale. However, two of the Judges of that court dissented, concluding that the statute of limitations did not bar this action. In Kindred v. Burlington Northern Railroad Co., 742 So. 2d 155 (Ala.1999), this Court recently considered another case wherein the plaintiff brought an asbestos-related FELA action. In that case, Justice Cook wrote for the Court: 742 So. 2d at 157. In Kindred, the plaintiff had testified in a deposition as follows: 742 So. 2d at 157. This Court held that Kindred's deposition testimony raised an issue of fact to be resolved by a jury: 742 So. 2d at 158. In this case, the evidence tends to show that in 1984 Wilkerson attended a meeting organized by his union to discuss with union members the possibility that they could have been exposed to asbestos in their workplaces. Attorneys were present at that meeting, and they told union members that the members could sign up for medical examinations to determine whether they were suffering from asbestos exposure. Wilkerson signed up for an evaluation. Several months later, Dr. James A. Merchant wrote the following in a letter he sent to Wilkerson: (C.R. at 343.) Wilkerson was subsequently evaluated by Dr. John F. Finklea. Dr. Finklea wrote in a report: (C.R. at 350.) Wilkerson received a copy of this report in October 1985. In his deposition, Wilkerson testified: (C.R. at 330.) Dr. Merchant and Dr. Finklea both submitted affidavits, which Wilkerson attached *667 to his motion in opposition to summary judgment. In their affidavits, they both state unequivocally that they did not diagnose Wilkerson with asbestosis. Dr. Finklea's report appears consistent with those affidavits. Dr. Finklea's report states that Wilkerson had "subtle shortness of breath demonstrable with exertion," and it lists "mild restrictive lung dysfunction" as a "clinical impression." However, his report appears to stop short of diagnosing Wilkerson with asbestosis. He speaks in terms of "increased risk for developing pulmonary asbestosis" and advises "medical examinations directed towards early detection and treatment of asbestos-related diseases." Further, following his receipt of Dr. Finklea's report, Wilkerson went to his family physician and provided his physician with a copy of the report. His physician told him that he had not contracted an asbestos-related disease. (C.R. at 329.) Given these facts, two Judges of the Court of Civil Appeals concluded (with one Judge concurring in the result): 795 So. 2d at 662. However, the dissenting Judges wrote: "I do not understand how one could have a cause of action for having an asbestos-related disease until he actually has the disease. Having an increased chance of getting the disease cannot trigger the statute of limitations period." 795 So. 2d at 663 (Monroe, J., dissenting, joined by Yates, J.). Based on the evidence discussed above, we conclude that a disputed question of fact exists as to "when the plaintiff possess[ed] sufficient critical facts from which the injury and its cause, including its work-relatedness, should [have been] plainly known." See Kindred, supra, 742 So. 2d at 157. Accordingly, the date Wilkerson's cause of action accrued is a question for the jury. The summary judgment for the defendants was therefore inappropriate, and the Court of Civil Appeals' judgment affirming it is due to be reversed. REVERSED AND REMANDED. HOOPER, C.J., and HOUSTON, COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.

September 8, 2000

c589e027-b4f8-49f8-981c-8f0e65afee57

Ex Parte Prudential Ins. Co. of America

785 So. 2d 348

1981856

Alabama

Alabama Supreme Court

785 So. 2d 348 (2000) Ex parte The PRUDENTIAL INSURANCE COMPANY OF AMERICA et al. (Re Franklin D. Littlejohn and Essie D. Littlejohn v. The Prudential Insurance Company of America et al.) 1981856. Supreme Court of Alabama. September 15, 2000. *349 M. Christian King, William H. Morrow, and Lisa J. Wathey of Lightfoot, Franklin & White, L.L.C., Birmingham, for petitioners Prudential Insurance Company of America and Pruco Life Insurance Company. David W. Proctor and Helen Kathryn Downs of Johnston, Barton, Proctor & Powell, L.L.P., Birmingham, for petitioners Clarence Edwards, Jimmy Blue, Jr., and Thomas Delligatti. Stephen D. Heninger of Heninger, Burge, Vargo & Davis, L.L.P., Birmingham, for respondents. PER CURIAM. Franklin D. Littlejohn and Essie D. Littlejohn purchased two "variable appreciable life" (VAL) policies from The Prudential Insurance Company of America in March 1986. The Littlejohns allege that they understood from the Prudential agent who sold them the policies that the premiums for these two new policies would be paid from the cash value in their existing life insurance policies, along with accumulated dividends and a small increase in their monthly premiums. The Littlejohns claim that Charles Edwards, the Prudential agent sold them their VAL policies, sent them blank forms, with a note stating that the forms would allow Prudential to use the Littlejohns' other policies to pay for the VAL policies. The Littlejohns signed and returned the blank forms to Prudential. The forms in fact authorized Prudential to make loans against the Littlejohns' old policies to pay for premiums incurred on their new VAL policies. In April 1986 and March 1990, Prudential took loans against several of the Littlejohns' existing life insurance policies and used the loan proceeds to help fund the VAL policies. Mr. Littlejohn first became aware of the loans in the spring of 1990. Mr. Littlejohn wrote letters in May, September, and December 1990 to Prudential and to the State of Alabama Department of Insurance, complaining that he and his wife had not been adequately informed by their Prudential agent that they were authorizing a loan transaction, that they had not authorized either the 1986 or the 1990 loans, and that the Prudential *350 agent had not informed them that the VAL policies would be funded by the proceeds from loans taken against their existing policies. Because of the alleged misrepresentations made, the Littlejohns said they wanted the original policies reinstated to their original form, i.e., they wanted any encumbrance created by the loans to be removed from those original policies. Mr. Littlejohn met with two Prudential agents in 1990 or 1991. The agents reasserted that the Littlejohns had authorized the loan transactions and that the VAL policies provided good insurance coverage. Mr. Littlejohn stopped making premium payments on the VAL policies after meeting with the Prudential agents; however, the Littlejohns subsequently resumed making premium payments. Upon receiving information regarding a class action against Prudential, the Littlejohns sued Prudential, Pruco Life Insurance Company, and three Prudential agents (all defendants are referred to sometimes hereinafter as "Prudential") on February 6, 1997, alleging fraud, deceit, and misrepresentation in the sale and servicing of the VAL policies, and alleging conversion. Prudential moved for a summary judgment on May 22, 1998, contending the Littlejohns' fraud and conversion claims were barred by the applicable statutes of limitations. See Ala.Code 1975, §§ 6-2-38 and 6-2-3 and 6-2-34. The trial court entered a summary judgment in favor of Prudential. The Littlejohns appealed. The Court of Civil Appeals reversed, holding that the evidence created a jury question as to whether the Littlejohns had "justifiably relied" upon the representations made by Prudential and the Alabama Department of Insurance, so as to toll the running of the limitations period. Littlejohn v. Prudential Ins. Co. of America, 785 So. 2d 345 (Ala.Civ.App.1999). We granted the defendants' petition for certiorari review. We reverse and remand. This case was filed before this Court decided Foremost Insurance Co. v. Parham, 693 So. 2d 409 (Ala.1997), which overruled the "justifiable-reliance" standard for testing fraud claims and adopted in its place the "reasonable-reliance" standard (for fraud claims filed after March 14, 1997). In order to establish a fraud claim under that justifiable-reliance standard, the plaintiff must show (1) that the defendant misrepresented "a material fact"; (2) that the misrepresentation was made "willfully to deceive" or was made "recklessly without knowledge"; (3) that the plaintiff "justifiably relied upon" the misrepresentation and that "under the circumstances that reliance was justifiable"; and (4) that the plaintiff was damaged as a proximate result of the reliance. Gonzalez v. Blue Cross/Blue Shield of Alabama, 689 So. 2d 812, 821 (Ala.1997). Prudential contends that the Littlejohns did not rely on Prudential's representations and that the Department's representations could not support a finding of the reliance necessary to toll the running of the limitations period. We must first consider whether the evidence would support a holding that the running of the limitations period was tolled by any actions or representations on the part of Prudential so that the Littlejohns' fraud claim could be taken as timely filed. The Littlejohns conveyed their dissatisfaction with the VAL policies through several letters and oral communications. Mr. Littlejohn contacted Prudential in writing on May 4, 1990, stating, in part: On September 13, 1990, Mr. Littlejohn wrote another letter to Prudential, expressing his dissatisfaction with Prudential's handling of the VAL policies. That letter stated: On October 19, 1990, Prudential wrote the Littlejohns a letter to advise them of Prudential's findings after it had reviewed the circumstances surrounding the Littlejohns' purchase of their VAL policies. In that letter, Prudential noted that by signing the VAL applications, the Littlejohns acknowledged receipt of the prospectus and agreed to the terms and provisions in the prospectus and the application. After addressing Mr. Littlejohn's concerns, Prudential further stated: On December, 17, 1990, Mr. Littlejohn wrote a letter to the Department of Insurance, expressing his desire to have the policies reinstated to their original forms "due to the deceitful maneuvers implemented to acquire loans." On January 24, 1991, Prudential wrote a letter to the Department, addressing Mr. Littlejohn's complaints and reiterating that Prudential felt the Littlejohns had been treated fairly and had been provided good insurance. Mr. Littlejohn testified that he had a number of conversations with Prudential agents to voice his complaints about his VAL policies and that he asked Prudential to "make it right." He testified that the agents told him that he did not have a problem and that his insurance was good. Mr. Littlejohn further testified that he knew by the end of 1991 that Prudential was claiming that his 1986 policy had been funded in part by loans from some of his old insurance policies. Despite Prudential's refusal to reinstate the policies to their original status, and despite the fact that the Littlejohns knew by the end of 1991 that loans had been *352 taken against their existing policies to fund the VAL policies, they did not file a complaint until February 6, 1997, almost seven years after they first became aware of the alleged fraud. The evidence would not support a finding that in delaying their filing for almost seven years the Littlejohns were "justifiably relying" on the alleged misrepresentations of Prudential. We must next determine whether the representations of a third party, such as the Department, can support a finding of justifiable reliance that would toll the running of the limitations period. As a general rule, they do not.[1] Section 6-2-3, Ala.Code 1975, reads: We have stated that "[u]nder this provision the general statute of limitations is... tolled and the time period for bringing an action extended when there has been a fraudulent concealment by the party guilty of fraud." Parsons Steel, Inc. v. Beasley, 522 So. 2d 253, 256 (Ala.1988) (citing Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981)). (Emphasis added.) We hold that the evidence would not support a finding that the Littlejohns justifiably relied on any representations of the Department of Insurance. Consequently, we hold that the actions of the Department of Insurance in this case did not toll the running of the statute of limitations. The fraud claim is barred because it was not filed within two years after the Littlejohns became aware of the alleged fraud. See § 6-2-3, Ala.Code 1975. Likewise, the Littlejohns' conversion claim is barred by the statute of limitations. The statute of limitations for conversion allows six years for filing a claim. See Ala.Code 1975, § 6-2-34. If the conversion claim is based upon the doctrine of respondeat superior, it is subject to a two-year statute of limitations. See Ala.Code 1975, § 6-2-38(n). Prudential took the allegedly unauthorized loans in April 1986 and March 1990. The Littlejohns filed their complaint alleging conversion almost seven years after the last loan was taken. As a result, the conversion claim is time-barred. The trial judge properly entered the summary judgment in favor of Prudential. Therefore, the judgment of the Court of Civil Appeals reversing that summary judgment is reversed. This case is remanded for the Court of Civil Appeals to reinstate the summary judgment. REVERSED AND REMANDED. HOOPER, C.J., and HOUSTON, COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. MADDOX, J., concurs in the result. SEE, J., recuses himself. [1] We note that in the context of will contests, this Court has held that the fraudulent concealment of a will, even if it is concealed by a third party, will toll the running of the limitations period for filing a will for probate. See Vandegrift v. Lagrone, 477 So. 2d 292 (Ala. 1985). In Vandegrift, we stated that the fraudulent concealment of a will should not deprive a proponent of a will of the opportunity to establish his right to property.

September 15, 2000

cfc540ea-1211-4961-80c2-9c827d8918dd

Ex Parte Bedingfield

782 So. 2d 290

1981892

Alabama

Alabama Supreme Court

782 So. 2d 290 (2000) Ex parte Mack BEDINGFIELD, Jr., et al. (Re Mack Bedingfield, Jr., et al. v. Mooresville Town Council et al.) 1981892. Supreme Court of Alabama. August 25, 2000. *291 Milton E. Yarbrough, Jr., Huntsville, for petitioners. Charles H. Younger, Huntsville, for respondents. JOHNSTONE, Justice. Plaintiffs Mack Bedingfield, Jr., Mary Bedingfield, Classie Mae Peebles, Egbert Peebles, Lyla M. Peebles, Withers G. Peebles, Jr., Withers G. Peebles III, John Brent Peebles, Annie R. Yarbrough, and Milton E. Yarbrough, Jr. (Bedingfield group), petitioned this Court for a writ of certiorari for review of the decision of the Court of Civil Appeals affirming an adverse summary judgment and applying a substantial-compliance analysis to the zoning-ordinance notice requirements of §§ 11-52-77 and 11-52-78, Ala.Code 1975. We granted the writ to determine whether the Court of Civil Appeals' decision conflicts with Kennon & Assocs., Inc. v. Gentry, 492 So. 2d 312 (Ala.1986), and its progeny. We reverse and remand. On March 20, 1990, after proper notice and public debate, the Town Council of the Town of Mooresville adopted an ordinance to establish a zoning commission as authorized by § 11-52-79, Ala.Code 1975. Pursuant to the new ordinance, the Town Council appointed the zoning commission and charged it with developing zoning districts and regulations for the Council's review. On November 20, 1990, after two public meetings concerning boundaries and property uses, the zoning commission voted "to recommend the preliminary report to the Town Council." On February 11, 1991, the chairman of the zoning commission submitted a final report and a proposed zoning ordinance, which incorporated a zoning map to locate the particular zones within the town, to the Town Council. On March 19, 1991, at a regular Council meeting, the Town Council passed an ordinance authorizing the posting of the zoning ordinance and map submitted by the zoning commission. Notice of the proposed zoning ordinance and map was posted in four conspicuous places in town. The notice stated that the proposed zoning ordinance and map would be considered at the April 4, 1991, meeting of the Town Council. On March 29, 1991, the Bedingfield group filed an action to enjoin the Town *292 Council's consideration of the proposed zoning ordinance and to recover damages if the Town Council adopted the ordinance. The Bedingfield group named as defendants the Town of Mooresville, the Town Council, and the individual members of the Town Council. The trial court did not enjoin the April 4, 1991, meeting of the Town Council, and the Town Council considered and adopted the proposed ordinance and map at its April 4, 1991, meeting. Before adopting the ordinance and the map, however, the Town Council changed the zoning classification of two lots belonging to Milton E. Yarbrough, Jr., one of the plaintiffs, from residential to business because, through error or oversight, the lots had been excluded from the business district on the original zoning map. This change is the gravamen of the pertinent claim by the Bedingfield group. Thereafter, the Town Council and the other defendants moved to dismiss the lawsuit filed by the Bedingfield group. The Bedingfield group amended their complaint to allege, among their theories, that: Subsequently, the Bedingfield group moved for a summary judgment and filed a brief in support thereof. Upon the request of the defendants, the trial court treated the defendants' motion to dismiss as a motion for a summary judgment. The Bedingfield group filed an opposition to the defendants' summary judgment motion and filed another summary judgment motion, along with exhibits. The defendants filed a supplemental affidavit in support of their motion. After arguments of counsel, the trial court entered summary judgment in favor of the defendants. The Bedingfield group filed a postjudgment motion and, after its denial, a notice of appeal. This Court transferred the appeal to the Court of Civil Appeals, pursuant to § 12-2-7, Ala.Code 1975. In affirming the judgment of the trial court, the Court of Civil Appeals applied a "substantial-compliance" analysis to the notice and hearing requirements of §§ 11-52-77 and 11-52-78. Bedingfield v. Mooresville Town Council, 782 So. 2d 284 (Ala.Civ.App.1999). The Court of Civil Appeals concluded that 782 So. 2d at 289. In their petition for a writ of certiorari, the Bedingfield group contends that the reclassification of Yarbrough's property *293 amended the zoning ordinance and that §§ 11-52-77 and 11-52-78 require notice of an amendment to a zoning ordinance before the amendment can be enacted. Kennon & Assocs., Inc. v. Gentry, 492 So. 2d 312 (Ala.1986). In Kennon, this Court held: 492 So. 2d at 315 (quoting Builders Dev. Co. v. City of Opelika, 360 So. 2d 962, 964 (Ala.1978)). This Court further stated: 492 So. 2d at 318. The Legislature repealed § 11-52-74 ("Publication of ordinance providing for zones.") in 1981, and now § 11-52-77 contains the requirements for public notice of, and public hearing on, zoning ordinances. At the time applicable to this case it provided, in pertinent part: Section 11-52-78 governs the amendment, the change, or the repeal of zoning ordinances: The opinion of the Court of Civil Appeals permitting "substantial compliance" with §§ 11-52-77 and 11-52-78 directly conflicts with Kennon, supra, and its progeny. This Court has required strict compliance with the notice and hearing requirements of § 11-52-77 and that strict compliance requirement extends to § 11-52-78. Kennon, supra, and its progeny. Section 11-52-78 requires the Town Council to comply with the notice and hearing *294 requirements of § 11-52-77 before the Town Council may amend, change, supplement, modify, or repeal the zoning ordinance. Although the error in the proposed zoning ordinance which classified Yarbrough's property as "residential" rather than "business" was, without dispute, an honest or clerical error, correcting the error required a change to the proposed ordinance. The Town Council changed the classification of Yarbrough's property from "residential" to "business" and then adopted the ordinance without its having been posted in its changed form with notice that it would be considered in that form as required by § 11-52-77. Thus, because the Town Council did not comply with the notice and hearing requirements of § 11-52-77 before it purported to adopt the ordinance with the changed classification of Yarbrough's property from "residential" to "business," the zoning ordinance is invalid for lack of the notice required by § 11-52-77 for the ordinance (in the form purportedly adopted) or for lack of the notice required by § 11-52-78 for the change itself. Kennon, supra. Therefore, the trial court erred in entering summary judgment in favor of the defendants, and the Court of Civil Appeals erred in affirming the judgment of the trial court. Accordingly, we reverse the judgment of the Court of Civil Appeals, and we remand this cause for further proceedings consistent with this opinion. REVERSED AND REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, and ENGLAND, JJ., concur.

August 25, 2000

bd884d0c-ccdf-4fc9-8b3a-a58fc9cdb9a2

Ex Parte Tyson

784 So. 2d 357

1991309

Alabama

Alabama Supreme Court

784 So. 2d 357 (2000) Ex parte Anthony TYSON. (In re Anthony Tyson v. State). 1991309. Supreme Court of Alabama. November 17, 2000. *358 Thomas M. Goggans, Montgomery, for petitioner. Bill Pryor, atty. gen., and Thomas F. Parker IV, asst. atty. gen., for respondent. PER CURIAM. Anthony Tyson was convicted of capital murder for the deaths of Derek Cowan and Damien Thompson. Tyson was convicted of two counts under § 13A-5-40(a)(2), Ala.Code 1975murder committed during the course of a robbery in the first degreeand of one count under § 13A-5-40(a)(10)the murder of two or more people during one act or pursuant to one scheme or course of conduct. By a vote of 10-2, the jury recommended that Tyson be sentenced to death. The trial court followed the jury's recommendation and sentenced Tyson to death by electrocution. In a unanimous decision, the Court of Criminal Appeals affirmed Tyson's conviction and sentence. Tyson v. State, 784 So. 2d 328 (Ala.Crim.App.2000). We granted certiorari review, pursuant to Rule 39(c), Ala.R.App.P.[1] We affirm the judgment of the Court of Criminal Appeals. Tyson has raised 13 issues for our review. The Court of Criminal Appeals fully addressed and correctly resolved each of these issues in its thorough and well-researched opinion. Only four of those issues warrant further discussion. Three of them question the validity of the search warrant; the final issue challenges limitations the trial court placed on Tyson's cross-examination of the prosecution's expert witness on DNA evidence. On January 4, 1997, Porter Key was driving on Franklin Road in Macon County when he discovered Cowan's body in the middle of the road. Key said he had to drive off the road to avoid the body. He *359 said that he saw a green Acura automobile roll off the road and strike a fence, and that the car then backed up onto the road and sped off in the direction of Tuskegee. Key said he thought the driver of this car had been involved in a hit-and-run accident, so, he said, he chased the car in an attempt to get the license-plate number. He was unable to keep up and lost the car somewhere in Tuskegee. Later, law-enforcement personnel discovered that Cowan had not been the victim of a hit-andrun accident, but had been shot twice in the back of the head. Within minutes after Key discovered Cowan's body, Thompson's body was discovered slumped forward on the passenger side of an Acura automobile that was in the bushes at an intersection in Tuskegee. The keys were in the car and it was still running. Thompson had also been shot twice in the head. Alphonso Cardwell testified that he and Cowan had been scheduled to meet for a drug exchange on a dirt road off County Road 36 on January 4, 1997. He testified that as he was driving to the designated location he saw Cowan, Thompson, and a third male, whom he identified at trial as Anthony Tyson, drive by in a green Acura. The Acura was being followed, he said, by another vehicle, driven by Cornelius "D'Rock" Drisker. Cardwell testified that when he arrived at the location of the planned exchange, he gave Cowan $300 in exchange for cocaine. Minutes later, Cowan's body was discovered. Witnesses testified that one of his pockets was turned inside out. The $300 was missing. Police connected Tyson to the murders while investigating a shooting in Union Springs that occurred 10 days after the double murder in Macon County. Nicholas Martin testified that Tyson and three other people shot at him from a car as he was walking his dog. He testified that he recognized Tyson and that he went to the police station and signed a warrant for Tyson's arrest.[2] Law-enforcement authorities later determined that the gun identified as the weapon used in the Union Springs shooting was the same weapon used in the murder of Cowan and Thompson. Substantial forensic evidence connected Tyson to the double murder. After executing a search warrant, based on evidence obtained in the investigation of the Union Springs shooting, the police recovered from Tyson's apartment a Lorcin chrome.380 pistol and bloodstained sneakers. A DNA analysis of the blood on the sneakers showed that the blood matched Thompson's blood. Police recovered Tyson's fingerprints from the green Acura. Spent shell casings recovered from the Acura, from near Cowan's body, and from the Union Springs shooting were identified as having been fired by the same gun, a Lorcin .380, which was identified as belonging to Tyson. Tyson's defense at trial was that he did not kill Cowan and Thompson. He attempted to show that another person could have committed the murders, specifically, the man who had been seen in a car with the victims earlier on the day of the murders. Tyson argues that evidence seized from his apartment should have been suppressed because, he says, the search warrant was not based on sufficient probable cause, listed the wrong address, and did not authorize a nighttime search. The affidavit *360 in support of the search warrant reads: When reviewing the question whether officers had probable cause, this Court has stated: Crittenden v. State, 476 So. 2d 632, 633-34 (Ala.1985) (quoting Illinois v. Gates, 462 U.S. 213, 239, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (emphasis omitted)). The affidavit supporting the warrant in this case presents significant information, not merely conclusory statements "that [give] the magistrate virtually no basis at all for making a judgment regarding probable cause." Id. at 633. Agent Smith's affidavit provides a detailed description of the investigation leading to his belief that the weapon used in the Union Springs shooting would be found at Tyson's apartment. The affidavit provides sufficient information to allow the magistrate to make an independent determination as to the existence of probable cause. Therefore, we conclude that the warrant was based on probable cause. Tyson contends that his address was 401-C North Church Street. Therefore, he argues, because the warrant was issued for the search of 401-A North Church Street, it failed to designate with particularity the location actually searched and is therefore invalid. Tyson's argument is without merit. An error in the address does not necessarily invalidate a warrant. In United States v. Burke, 784 F.2d 1090, 1092 (11th Cir.), cert. denied, 476 U.S. 1174, 106 S. Ct. 2901, 90 L. Ed. 2d 987 (1986), the United States Court of Appeals for the Eleventh Circuit noted: In this case, law-enforcement officers, while attempting to execute an arrest warrant issued against Tyson, located his residence. The officers did not find Tyson; instead, they found several armed persons in his residence. In their opinion, that circumstance indicated a high degree of probability that the weapon used in the Union Springs shooting would be found on the premises. At that time, Agent Smith *362 left officers securing the premises while he sought the search warrant. In his effort to secure the search warrant, Agent Smith spoke with Tyson's landlord and obtained a copy of Tyson's lease agreement, which lists Tyson's apartment number as 401-A rather than 401-C. Considering that Agent Smith, the executing officer, had been to Tyson's residence and had left officers securing that residence, there can be little doubt that he planned to return to the correct residence to conduct the search. The actions of Agent Smith and the officers who stayed behind to secure the premises ensured that there would be no mistake as to which apartment the police intended to search. Under these circumstances, we decline to say that, because the wrong apartment number appeared on the face of the warrant, the warrant was invalid. Tyson argues that the warrant to search his apartment contained a box that the judge should have checked in order to authorize a nighttime search. That box was not checked, yet the search was made at night. Rule 3.10, Ala.R.Crim.P., provides, in pertinent part: Similarly, § 15-5-8, Ala.Code 1975, provides: Tyson argues that because the warrant did not authorize a nighttime search, any evidence found at his residence is the fruit of an illegal search. Quoting Ex parte Turner, [Ms. 1971735, April 7, 2000] ___ So.2d ___ (Ala.2000), Tyson argues: "`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.'" ___ So.2d at ___ (quoting Kelley v. State, 55 Ala.App. 402, 403, 316 So. 2d 233, 234 (Ala.Crim.App.1975)). Turner dealt with a search predicated on an anticipatory search warrant issued in September 1995. This Court held that the search was unconstitutional because at that time there was no Alabama statute *363 authorizing anticipatory search warrants.[3]Turner, ___ So.2d at ___. This case is distinguishable from Turner because § 15-5-8 specifically authorizes the execution of nighttime warrants. In rejecting Tyson's argument as to this issue, the Court of Criminal Appeals relied on Gamble v. State, 473 So. 2d 1188 (Ala. Crim.App.1985). In Gamble, the court stated: 473 So. 2d at 1194-95. It is clear in this case, as it was in Gamble, that the police officers were acting in good faith. Agent Smith had every intention of obtaining a search warrant authorizing a nighttime search and submitted an affidavit clearly establishing grounds for a nighttime search. Furthermore, he requested the warrant at 7:45 p.m., after dark, and executed the warrant at 8:00 p.m. Agent Smith also informed the magistrate issuing the warrant that other officers at Tyson's residence were waiting for the warrant. *364 Had the warrant been issued in the daytime, the necessity for checking the box authorizing a nighttime search would be readily understandable. However, where, as here, the warrant was issued after dark and the magistrate knew of its imminent execution, for us to require that the box be checked would be to exalt form over substance. The magistrate issued the warrant knowing that Agent Smith planned to execute it immediately.[4] Therefore, applying the exclusionary rule in this case would serve no purpose. Discussing the exclusionary rule, the United States Supreme Court has stated: United States v. Leon, 468 U.S. 897, 906-08, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). In Massachusetts v. Sheppard, 468 U.S. 981, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984), a case in which police officers, acting in good faith, secured a search warrant that later was held invalid because of a clerical error committed by the magistrate who issued the warrant, the United States Supreme Court held: 468 U.S. at 990-91, 104 S. Ct. 3424 (footnote omitted). The same rationale applies in the case before us. As noted previously, when the warrant was issued, the issuing judge was fully aware that Agent Smith intended to conduct a nighttime *365 search. The officers were acting in good faith and with reasonable reliance on a belief that the search warrant was valid. Therefore, suppressing the evidence gained from the search would not serve as a deterrent. We decline to exclude the evidence recovered from Tyson's apartment because of a clerical error made by the issuing judgefailing to check the box authorizing a nighttime search. See Massachusetts v. Sheppard. Tyson argues that the trial court committed reversible error when it denied him what he characterizes as the right to fully cross-examine the prosecution's expert witness on DNA evidence. Tyson contends he should have been able to cross-examine the DNA expert regarding the possible effects of genetic subgroups in Alabama on the reliability of DNA statistics. In regard to a defendant's claim that he was denied his right of cross-examination, this Court has stated: Ex parte Pope, 562 So. 2d 131, 134 (Ala. 1989), cert. denied, 498 U.S. 841, 111 S. Ct. 118, 112 L. Ed. 2d 87 (1990). We conclude, however, that Tyson has not shown that the trial court abused its discretion by refusing to allow him to cross-examine the DNA expert as he wanted to do. Tyson argues that the trial court erred in refusing to allow the following line of questioning to continue: In sustaining the objection, the trial court stated: We agree with the trial court that the line of questioning and the tactics employed by Tyson's counsel were irrelevant and could have misled the jury. Furthermore, the DNA expert had previously testified during cross-examination as follows: Tyson's counsel had already questioned the DNA expert regarding genetic subgroups and the possible effect such subgroups would have on statistical analyses of the population of Alabama. The witness gave a very thorough explanation regarding the effect of genetic subgroups in Alabama. Therefore, the trial court did not abuse its discretion when it denied Tyson the privilege of repeating such questioning in a manner likely to mislead the jury. We have carefully reviewed all the issues presented in Tyson's petition, in the parties' briefs, and at oral argument. We find no error, in either the guilt phase or the penalty phase of Tyson's trial, that would warrant a reversal of his convictions or his sentence. We therefore affirm the judgment of the Court of Criminal Appeals. AFFIRMED. *367 HOOPER, C.J., and MADDOX, HOUSTON, COOK,[*] SEE, LYONS, BROWN, and ENGLAND, JJ., concur. [1] Because this case was under review before May 19, 2000, the effective date of the recently revised version of Rule 39, Ala.R.App.P., we have searched the record in this case for plain error. [2] Tyson later pleaded guilty to attempted murder as a result of the events that occurred in Union Springs. [3] Anticipatory search warrants are now permitted in Alabama. See Rules 3.7 and 3.8, Ala.R.Crim.P., effective December 1, 1997. [4] The warrant contains the following language: "Affidavit in support of application for a search warrant having been made before me, and the Court's finding that grounds for the issuance exist or that there is probable cause to believe that they exist, pursuant to Rule 3.8, Alabama Rules of Criminal Procedure, you are hereby ordered and authorized to forthwith search:" (Emphasis added.) "Forthwith" means "immediately." Merriam-Webster's Collegiate Dictionary 459 (10th ed.1997). The warrant, issued at 7:45 P.M., thus authorized an immediate search, a search that clearly would be a nighttime search. [*] Although Justice Cook did not sit at oral argument of this case, he has listened to the tape of oral argument.

November 17, 2000

531cda5d-ce20-493f-8035-b4be5ba8800f

Ex Parte Cove Properties, Inc.

796 So. 2d 331

1981893

Alabama

Alabama Supreme Court

796 So. 2d 331 (2000) Ex parte COVE PROPERTIES, INC. (Re Cove Properties, Inc. v. Walter Trent Marina, Inc.) 1981893. Supreme Court of Alabama. July 28, 2000. Norton W. Brooker, Jr., and William E. Shreve, Jr., of Lyons, Pipes & Cook, P.C., Mobile, for petitioner. Mylan R. Engel and Edgar P. Walsh of Engel, Walsh & Associates, Mobile, for respondent. *332 JOHNSTONE, Justice. Cove Properties, Inc., petitioned for a writ of certiorari for this Court to review the judgment of the Court of Civil Appeals, which affirmed in part and reversed in part the trial court's summary judgment entered in favor of Cove Properties, Inc. v. Walter Trent Marina, Inc., 796 So. 2d 322 (Ala.Civ.App.1999)(Cove II). We granted certiorari to determine whether the Court of Civil Appeals erred in interpreting § 33-7-50, Ala.Code 1975, and in affirming in part and in reversing in part the judgment of the trial court. Because we determine that the summary judgment should have been reversed in its entirety, we reverse the part affirmance and affirm the part reversal by the Court of Civil Appeals. The issue is whether one waterfront property owner can build in front of the riparian lands of an adjacent waterfront property owner. Our holding is limited to properties on generally straight or convex shorelines. The holding in this case will not necessarily govern a dispute between owners of properties on a shoreline so deeply concave that any structure in front of the riparian lands of one property will necessarily be in front of the riparian lands of another property. Cove and Walter Trent are adjoining landowners of property fronting Terry Cove in Baldwin County, Alabama. In 1993, upon the issuance of permits by the Army Corp of Engineers and the Alabama State Docks Department, Walter Trent built a pier extending 350 feet southward from shore. Part of the pier is located on certain submerged property leased to Walter Trent by the State. Cove had a survey conducted of the boundary line between its property and Walter Trent's property and of Walter Trent's pier. The survey shows that Walter Trent's pier encroaches in front of Cove's property approximately six inches at the landward, or northern, end of the pier and encroaches in front of Cove's property approximately 7.1 feet at the southern tip of the pier. That part of the encroachment which extends southward over navigable waters, including the 7.1-foot encroachment at the very southern tip of the pier, is on the submerged property leased to Walter Trent by the State. Cove Properties, Inc. v. Walter Trent Marina, Inc., 702 So. 2d 472, 473 (Ala.Civ.App.1997) (Cove I). In 1996, Cove filed a declaratory judgment action against Walter Trent and requested injunctive relief, damages, "just compensation," and damages under 42 U.S.C. § 1983. Cove I. Walter Trent moved to dismiss Cove's complaint on the ground that the two-year statute of limitations of § 6-2-38(l), Ala.Code 1975, barred the complaint. Following arguments of counsel, the trial court dismissed Cove's complaint. Cove appealed. The Court of Civil Appeals affirmed the dismissal of Cove's claims for "just compensation" and for damages under 42 U.S.C. § 1983, but reversed the dismissal of Cove's claims for a declaratory judgment, for injunctive relief, and for damages. Cove I, supra. The Court of Civil Appeals remanded the cause for further proceedings. Id. Following remand, on the ground that, because its encroachment occurred in "navigable waters," the encroachment could not have violated Cove's property rights, Walter Trent moved for a summary judgment on all of Cove's claims. In support of its motion, Walter Trent submitted a copy of "Amendment No. 1 to [Walter Trent's] Lease Agreement" with the State of Alabama, acting through the Commissioner of the Department of Conservation and Natural Resources; various maps; a letter from the director of the State Lands Division of the Department of Conservation and Natural Resources; and a boundary-line *333 agreement between Cove and the president of, and principal owner of, Walter Trent. The State had leased Walter Trent "a parcel of submerged land consisting of a wedge shaped area 7.1 ft. wide at its widest point and 150 ft. long and tapering to a point landward of the triangle base, containing 532.5 square feet, more or less." Cove responded in opposition to Walter Trent's motion and moved for a partial summary judgment in its favor. In support of its opposition and its own motion, Cove filed a copy of the deed to its property; an affidavit from Cove's former president, Dennis W. Bikun; excerpts of the deposition of Walter Trent's president and principal owner; a letter addressed to Walter Trent from the chief of the Regulatory Branch, Operations Division, of the United States Army Corps of Engineers, Mobile District; and a letter addressed to Walter Trent from the Alabama State Docks Department. Neither the Army Corps of Engineers nor the Alabama State Docks Department would express an opinion of Walter Trent's property rights to erect the pier. On June 17, 1998, on the case action summary sheet, the trial court entered a judgment: Cove filed a Rule 59, Ala.R.Civ.P., post-judgment motion for the trial court to vacate its judgment and to enter judgment in favor of Cove. Following a hearing, the trial court denied Cove's postjudgment motion. Cove appealed. The Court of Civil Appeals affirmed "that portion of the summary judgment pertaining to the parties' rights beyond the point of navigability, and [reversed] the summary judgment as it applies to the parties' property rights above high-water mark and the parties' riparian rights up to the point of navigability in Terry Cove." Cove II, 796 So. 2d at 328-29. The rights of riparian owners are stated in §§ 33-7-50 through 33-7-54, Ala. Code 1975. Section 33-7-50 states: This section governs building rights not only on riparian lands and the overlying waters but also on the lands and overlying waters, including navigable waters, in front of riparian lands. "The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute." IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala.1992). In interpreting a statute, "[w]ords used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a *334 court is bound to interpret that language to mean exactly what it says." Id. See also Ex parte Pfizer, Inc., 746 So. 2d 960, 964 (Ala.1999); Blue Cross & Blue Shield v. Nielsen, 714 So. 2d 293, 296 (Ala.1998); Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa County, 589 So. 2d 687, 689 (Ala.1991); Town of Loxley v. Rosinton Water, Sewer & Fire Protection Auth., Inc., 376 So. 2d 705, 708 (Ala. 1979). "If the language of [a] statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect." IMED Corp., 602 So. 2d at 346. The language of § 33-7-50 is plain and unambiguous. An owner of riparian lands may install a pier in navigable waters in front of its riparian lands, subject to harbor and pier lines established by the United States or the State of Alabama, and with the caveat that such a pier may not unreasonably obstruct navigation. § 33-7-51. Expressio unius est exclusio alterius. The express inclusion of the words "in front of their respective riparian lands" excludes an interpretation that a riparian landowner has a right to erect a pier in front of the riparian lands of another. See Ex parte Kirkpatrick, 495 So. 2d 1095 (Ala.1986), and McMahan v. Yeilding, 270 Ala. 504, 120 So. 2d 429 (1960). Although the Court of Civil Appeals distinguishes property rights above the "high water mark," § 33-7-50 does not make such a distinction, and this Court rejected such a distinction in Mobile Transportation Co. v. City of Mobile, 153 Ala. 409, 44 So. 976 (1907). Moreover, in Mobile Transportation Co., this Court opined that the State could not erect structures interfering with a riparian owner's rights. Thus, the lease of the submerged property to Walter Trent by the State did not give Walter Trent the right to erect a pier encroaching in front of Cove's riparian lands. Section 33-7-50 accords Cove the exclusive right to erect a pier in front of its riparian lands. Therefore, the Court of Civil Appeals erred in affirming that portion of the trial court's summary judgment "pertaining to the parties' rights beyond the point of navigability." The Court of Civil Appeals correctly reversed the "summary judgment as it applies to the parties' property rights above the high-water mark and the parties' riparian rights." We reverse that portion of the judgment of the Court of Civil Appeals affirming that portion of the trial court's summary judgment "pertaining to the parties' rights beyond the point of navigability," and we affirm that portion of the judgment of the Court of Civil Appeals reversing the "summary judgment as it applies to the parties' property rights above the high-water mark and the parties' riparian rights." This cause is remanded for further proceedings. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and HOUSTON, COOK, BROWN, and ENGLAND, JJ., concur. LYONS, J., concurs in the result. MADDOX, J., dissents.

July 28, 2000

a4f34a77-3446-423e-a1b2-4ac6df2cce62

Ex Parte Crean

782 So. 2d 298

1981542

Alabama

Alabama Supreme Court

782 So. 2d 298 (2000) Ex parte Paula CREAN. (Re Paula Crean v. Michelin North America, Inc.) 1981542. Supreme Court of Alabama. August 25, 2000. J.E. Sawyer, Jr., Enterprise, for petitioner. Jack Corbitt, Ozark, for respondent. JOHNSTONE, Justice. Paula Crean sued Michelin North America, Inc., for workers' compensation benefits for on-the-job injuries. Constantly lifting and fixing defective tires while working for Michelin, Crean developed bilateral carpal tunnel syndrome and bilateral *299 ulnar nerve neuropathy in her hands and wrists. On June 12, 1997, the trial court entered a final judgment in favor of Crean. The trial court found that Crean had suffered a permanent and partial disability to the body as a whole and had suffered an 80% loss of capacity or ability to work. The trial court awarded Crean temporary total disability benefits in the sum of $15,084 and permanent partial disability benefits in the sum of $23,760. Further, the trial court ordered Michelin to pay for Crean's necessary medical and surgical treatment, her rehabilitation, her medicine, and her medical and surgical supplies. On July 11, 1997, Crean filed a motion to alter, amend, or vacate the judgment, or, in the alternative, for a new trial. (The record does not contain this motion.) On August 25, 1997, the trial court denied Crean's postjudgment motion, but awarded her $217 in travel expenses for her medical treatment. (The trial court did not issue a written order, but the court recorded its ruling on the case action summary.) On October 27, 1997, the trial court amended the final judgment to apportion the compensation award between the two compensation carriers which insured Michelin during the time Crean sustained her injuries. The trial court found that the evidence admitted during Crean's workers' compensation trial proved that, when Crean suffered the injuries to her right hand and wrist, for which she received the most medical treatment, The Hartford Insurance Company was Michelin's compensation carrier and, when Crean suffered the injuries to her left hand and wrist, Cigna Property and Casualty Insurance Company was Michelin's compensation carrier. The trial court apportioned the compensation award as follows: (R. 7-8.) On December 11, 1997, pursuant to § 25-5-86, Ala.Code 1975, Crean gave the required five-day notice to Michelin that she intended to move for a modification of the trial court's judgment because she had not yet received any of the benefits awarded by the court. On December 15, 1997, Michelin's attorney sent Crean's attorney a fax stating: "I have all Crean money, call." On December 18, 1997, in response to the fax, Crean's attorney sent Michelin's attorney a letter stating that Crean intended *300 to file her motion to modify the judgment notwithstanding the fax and that Crean refused to accept the dispute between Michelin's two compensation carriers as good cause for Michelin's delay in payment of her court-ordered benefits. On December 19, 1997, Crean moved the trial court to modify its judgment so as to order Michelin to pay the past due and future compensation installments in a lump sum and to pay interest and a 15% penalty, all pursuant to § 25-5-59(b) and § 25-5-86, Ala.Code 1975, for failing to pay the court-ordered benefits timely. If Michelin opposed this motion, Michelin has not included in the record any material of any kind about such opposition.[1] On January 5, 1998, after hearing the parties, the trial court entered an order reading: "Motion to Modify Judgment denied. Court will allow lump sum settlement." On January 22, 1998, Crean appealed the trial court's order denying her interest on the judgment and the 15% penalty fee for Michelin's failure to pay as prescribed by § 25-5-59(b) and § 25-5-86. The Court of Civil Appeals held that "the dispute between [Michelin's] insurance companies as to the amount of compensation each was responsible for paying was a `good cause' reason for the delay in payment of the benefits under § 25-5-59." Crean v. Michelin North America, Inc., 782 So. 2d 295, 297 (Ala.Civ.App.1999). However, the Court of Civil Appeals found that "under § 25-5-86 a `good cause' reason for delay in payment of benefits is not a defense to the failure to timely pay benefits owed." 782 So. 2d at 297. The Court of Civil Appeals reversed the trial court's judgment for its failure to find the "present value" of the future installments of benefits owed by Michelin and its failure to grant "the interest owed on the judgment." 782 So. 2d at 297. Michelin has not sought review of this aspect, or any aspect, of the judgment of the Court of Civil Appeals. Although the Court of Civil Appeals remanded the cause to the trial court for it to determine the present value of Crean's benefits and to include an award of statutory postjudgment interest, the Court of Civil Appeals did not instruct the trial court to award Crean the 15% penalty prescribed by § 25-5-59(b) and § 25-5-86. Crean petitioned this Court for certiorari review, which we granted to determine whether a dispute between two compensation carriers, who are not defendants to the workers' compensation action, can constitute "good cause," as provided in § 25-5-59(b), for an employer's failure to pay court-ordered benefits timely. Section 25-5-59(b), Ala.Code 1975, provides: Section 25-5-86, Ala.Code 1975, provides: Noteworthily, § 25-5-59(b) contains no requirement for five days' notice to claim the 15% penalty but does condition the penalty on the absence of good cause. Section 25-5-86 does contain the requirement of five days' notice to claim the remedy of lump-sum payment but does not condition the lump-sum remedy on the absence of good cause. Section 25-5-86 further preserves the employee's right to the penalty (conditioned on the absence of good cause) in the event that the employee establishes his or her entitlement to lumpsum payment. Although, in its brief, Michelin says, "Contrary to the findings of the Court of Civil Appeals, the trial court did not find that Michelin was in default," (Brief, p. 7), Michelin, in other places in its brief, admits that it had been in default in paying Crean the compensation installments required by the trial court's June 12, 1997, order (finally effective on August 25, 1997, the date of denial of Crean's postjudgment motion). Michelin's admissions in its brief read: (Brief, pp. 2 & 6.) Moreover, the Court of Civil Appeals recites in its opinion: 782 So. 2d at 297. Because Michelin has not sought review of the decision of the Court of Civil Appeals, Michelin is bound by these findings and holdings, which are not challenged by Crean either. See McMillan, Ltd. v. Warrior Drilling & Eng'g Co., 512 So. 2d 14 (Ala.19876). Thus the sole issue before us is whether, as a matter of law, the dispute between the two carriers can constitute good cause. We hold that it cannot. *302 Section 25-5-59(b) provides for a 15% penalty whenever "any installment of compensation payable is not paid without good cause within 30 days after it becomes due." (Emphasis added.) "[G]ood cause exists when there is a good faith dispute as to the employer's liability to its employee." Stevison v. Qualified Personnel, Inc., 571 So. 2d 1178, 1179 (Ala.Civ.App.1990) (citing Read News Agency, Inc. v. Moman, 383 So. 2d 840 (Ala.Civ.App.), cert. denied, 383 So. 2d 847 (Ala.1980) (emphasis added)). In Stevison, the Court of Civil Appeals affirmed the trial court's refusal to enforce against the employer the then 10% penalty (now 15% penalty) provided in § 25-5-59(b) because the evidence showed a "good faith" dispute concerning whether the employee had reached maximum medical improvement and whether his condition still warranted workers' compensation benefits at all or only reduced benefits. 571 So. 2d at 1179-80. See also Crown Textile Co. v. Dial, 507 So. 2d 522 (Ala.Civ.App. 1987) (the employer had good cause for withholding the employee's workers' compensation benefits in that there was a factual dispute concerning whether the employee's injury arose out of and in the course of his employment). The case before us is distinguishable from Stevison and Crown in that, in this case, Michelin does not dispute either its liability for Crean's work-related injuries or the quantum of her compensation. The only dispute in this case is the allocation dispute between Michelin's two compensation carriers. The trial court settled this dispute on October 27, 1997, when it apportioned the benefits owed to Crean between the two compensation carriers. Although the trial court apportioned the benefits between the two compensation carriers, the primary liability and responsibility for the payment of the benefits awarded have lain with the defendant Michelin, against which the judgment was entered, ever since it became final. See § 25-5-51, Ala.Code 1975. Manifestly, the legislature adopted the penalty provisions of § 25-5-59(b) and all of § 25-5-86 to protect the injured employee. The dispute between the two secondarily liable insurers does not relieve the employee's need for her benefits one iota and likewise does not relieve the employer's primary liability to pay the benefits. Because Michelin is primarily responsible for satisfaction of the judgment and Michelin's liability for Crean's injuries is undisputed, Michelin's delay in paying Crean workers' compensation benefits is without good cause. Thus, the Court of Civil Appeals erred in concluding that Michelin had such "good cause" as would defeat Crean's claim to the 15% penalty. A 15% penalty should be assessed against Michelin for its failure to pay the court-ordered benefits within 30 days following August 25, 1997. Furthermore, Crean is entitled to postjudgment interest on her workers' compensation award. Ex parte Stanton, 545 So. 2d 58 (Ala.1989); and Sullivan, Long & Hagerty, Inc. v. Goodwin, 658 So. 2d 493 (Ala.Civ.App. 1994). Therefore, we affirm the portion of the Court of Civil Appeals' judgment instructing the trial court to award Crean postjudgment interest on her compensation award, and we reverse the portion of the Court of Civil Appeals' judgment holding Crean not entitled to the 15% penalty. We remand the cause to the Court of Civil Appeals for that court to instruct the trial court to award Crean the 15% penalty on those installments of benefits which have accrued and shall accrue since August 25, 1997, and which have or shall become over 30 days delinquent and further to instruct the trial court to grant Crean that relief ordered by the Court of Civil Appeals for the lump-sum payment and interest. *303 AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. [1] Although, on February 25, 1998, after the trial court's January 5, 1998, decision, Michelin alleged in a motion for instructions that it had "repeatedly tendered said sums to the Plaintiff, [but] the Plaintiff steadfastly refuse[d] to accept the sums," Michelin has included nothing whatsoever in the record to establish that Michelin alleged or proved any such tender in the earlier proceeding on the plaintiff's December 19, 1997, motion, decided by the trial court on January 5, 1998.

August 25, 2000

db0c3366-2c49-4aaa-a0cf-14dab83906e8

Ex Parte Campbell

784 So. 2d 323

1981105

Alabama

Alabama Supreme Court

784 So. 2d 323 (2000) Ex parte Johnny Wayne CAMPBELL. (Re Johnny Wayne Campbell v. State). 1981105. Supreme Court of Alabama. July 28, 2000. Rehearing Denied November 17, 2000. *324 Kimberly J. Dobbs-Ramey, Decatur, for petitioner. Bill Pryor, atty. gen., and Beth Slate Poe, asst. atty. gen., for respondent. JOHNSTONE, Justice. We granted Johnny Wayne Campbell's petition for a writ of certiorari to determine whether a September 13, 1996, indictment charging Campbell with burglary in the third degree, among other crimes, was barred by the three-year-limitations provisions for prosecution of burglary in the third degree. §§ 13A-7-7 and 15-3-1, Ala.Code 1975. We reverse and render a judgment for Campbell. Johnny Wayne Campbell was first indicted for burglary-murder, reckless murder, and burglary in the first degree on July 31, 1986. The charges arose from a burglary and an automobile accident occurring on June 5, 1986. A jury heard Campbell's case. At the close of the State's case in the first trial, the trial court granted Campbell a judgment of acquittal on the charge of reckless murder. The jury, however, found Campbell guilty of burglary-murder and burglary in the first degree. On appeal, the Court of Criminal Appeals affirmed without an opinion. Campbell v. State (No. 8 Div. 128), 553 So. 2d 136 (Ala.Crim.App.1989) (table). On certiorari review, this Court reversed and remanded. Ex parte Campbell, 574 So. 2d 713, 716 (Ala.1990). We held that the State's evidence that at the time of the automobile accident Campbell possessed items that had been stolen during the burglary, could not establish beyond a reasonable doubt that Campbell was in immediate flight from the burglary when the deadly accident occurred. Thus the evidence was insufficient to support Campbell's convictions for burglary-murder and burglary in the first degree. 574 So. 2d at 716. On September 13, 1996, Campbell was indicted again for charges arising from the June 5, 1986, burglary and automobile accident. The indictment charged Campbell with three counts of reckless murder and with one count of burglary in the third degree. The challenge to the 1996 indictment pertinent to our review now was Campbell's motion to dismiss the charge of burglary in the third degree on the ground that the three-year statute of limitations for commencing prosecution of burglary in the third degree, § 15-3-1, barred the State from prosecuting him in 1996 for a burglary he allegedly committed in 1986. Trial Judge William Gullahorn conducted a hearing to dispose of a number of pretrial motions, including Campbell's motion to dismiss. That hearing was not recorded, although Campbell requested the trial court to order a court reporter to record all argument and discussion on the pretrial motions. Denying Campbell's motion to dismiss, Judge Gullahorn noted that an intervening indictmentreturned between the time Campbell's convictions under the first indictment were reversed in 1990 and the time the currently contested indictment against Campbell was returned in 1996tolled the running of the statute of limitations period under § 15-3-6, Ala. Code 1975. Pursuant to a plea agreement, Campbell entered a guilty plea to burglary in the third degree, the prosecutor dismissed the murder charges in the 1996 indictment, and the trial court convicted and sentenced Campbell on the burglary plea. Subsequently, asserting again that the statute of limitations barred his prosecution for burglary *325 in the third degree, Campbell moved to withdraw his guilty plea. The trial court denied the motion. Campbell appealed and raised the statute of limitations issue. Because the statute of limitations is jurisdictional and an indictment returned after the expiration of the limitations period of the statute is void, Campbell's guilty plea did not waive this issue. Speigner v. State, 663 So. 2d 1024 (Ala.Crim.App.1994); Hines v. State, 516 So. 2d 937 (Ala.Crim.App.1987); Cox v. State, 585 So. 2d 182 (Ala.Crim.App.1991), cert. denied, 503 U.S. 987, 112 S. Ct. 1676, 118 L. Ed. 2d 394 (1992). The Court of Criminal Appeals noted that the record did not support the State's assertion in its brief that Campbell had always been charged under some indictment for the June 5, 1986, burglary and automobile accident after the 1990 reversal of his convictions under the initial indictment and before the return of the currently challenged indictment in 1996 except for seven months[1] when he was not charged under an indictment. Because the Court of Criminal Appeals could not discern from the record whether evidence existed to support the State's assertion of an intervening indictment, the Court of Criminal remanded the case for the trial court "to hold a hearing to clarify the time frame that Campbell was under indictment for the offense underlying his conviction for burglary in the third degree." Campbell v. State, 784 So. 2d 318, 320, 321 (Ala.Crim. App.1998). On remand, Judge Gullahorn conducted a hearing and allowed the State to submit exhibits to support its assertion that Campbell was under an indictment nearly the entire time from the time of his initial indictment in 1986 to the time of his currently challenged indictment in 1996. At the remand hearing, the State presented four exhibits to support its position: 1) the initial indictment charging Campbell on July 31, 1986, with reckless murder, burglary-murder, and burglary in the first degree for the events occurring on June 5, 1986; 2) a case action summary sheet referencing the initial indictment, assigning case number CC-86-716 to the indictment, and showing a nolle prosequi of the indictment on June 13, 1991; 3) an intervening indictment charging Campbell on May 3, 1991, for various counts of murder and burglary in the third degree for the events occurring on June 5, 1986; and 4) a September 12, 1996, order by Judge Gullahorn dismissing the intervening indictment against Campbell in case CC-91-500 on the basis of Pace v. State, 714 So. 2d 320 (Ala.Crim.App.1996), aff'd, 714 So. 2d 332 (Ala.1997), in which this Court reversed the defendant's conviction because the Morgan County grand jurors were not impartially selected to serve on the grand jury. The State argued that the intervening indictment returned on May 3, 1991 (exhibit 3) existed until Judge Gullahorn dismissed that indictment by order on September 12, 1996 (exhibit 4). Then, the State argued, Campbell was reindicted for the third time on September 13, 1996. Thus the State maintained that, because there was only one day when Campbell was not under an indictment, the statute of limitations for prosecuting Campbell had been tolled pursuant to § 15-3-6. (R. 7.) During the hearing, the State noted and the trial judge acknowledged that the State did not present any evidence at the original hearing on Campbell's motion to dismiss the charge of burglary in the third degree. Defense counsel objected to the *326 State's submission of the exhibits because the exhibits were not admitted and considered during the original hearing. However, the trial court denied defense counsel's motion and accepted the exhibits as evidence to show that the intervening indictment tolled the statute of limitations for prosecuting Campbell for burglary in the third degree. Alabama law provides that the statute of limitations for prosecuting an offense is tolled during the time when an indictment for the offense in question is pending against the appellant. § 15-3-6, Ala.Code 1975; Finley v. State, 683 So. 2d 7, 8 (Ala. Crim.App.1996); Beverly v. State, 497 So. 2d 513, 517 (Ala.Crim.App.1985), aff'd in part and rev'd in part on other grounds, 497 So. 2d 519 (Ala.1986). The State's exhibits tend to show that a second intervening indictment existed from May 3, 1991, until September 12, 1996, when the trial court dismissed that indictment on the basis of Pace. However, the record of the remand hearing at which the exhibits were offered proves that these exhibits were not presented at the original hearing on Campbell's motion to dismiss the charge of burglary in third degree. Campbell contends that the Court of Criminal Appeals erred in allowing the State to submit evidence at the remand hearing when that evidence was not admitted at the original hearing on Campbell's motion to dismiss. Rule 10(g), Ala.R.App.P. (previously Rule 10(f)), allows the Court of Criminal Appeals to "order that a supplemental or corrected record be certified and transmitted to the appellate court if necessary to correct an omission or misstatement." "Rule 10(g) was not meant to apply to situations where the evidence sought to be brought to the appellate court's attention was never received by or offered to the trial court. Rule 10(g) applies to, `admitted or offered evidence that is material to any issue.'" Dobyne v. State, 672 So. 2d 1319, 1326 (Ala. Crim.App.1994), aff'd, 672 So. 2d 1354 (Ala. 1995), cert. denied, 517 U.S. 1169, 116 S. Ct. 1571, 134 L. Ed. 2d 670 (1996). Rule 10(g) "governs the omission of material that was actually a part of the record below." Allen v. State, 598 So. 2d 1031, 1034 (Ala.Crim. App.1992). See Richburg v. Cromwell, 428 So. 2d 621 (Ala.1983); and Williams v. City of Northport, 557 So. 2d 1272 (Ala.Civ.App. 1989), cert. denied, 498 U.S. 822, 111 S. Ct. 71, 112 L. Ed. 2d 45 (1990). "The purpose of Rule 10(f) [now 10(g)] is to supply materials omitted from the record so that the record on appeal will accurately reflect what occurred in the trial court. Rule 10(f) [now 10(g)] neither contemplates nor authorizes the introduction of documents, exhibits, evidence, or other matters which could or should have been, but were not, introduced at the original trial or hearing." Thomas v. State, 550 So. 2d 1057, 1062 (Ala.Crim.App.), aff'd, 550 So. 2d 1067 (Ala. 1989). Further, an appellate court "is limited to a review of the record alone, that is, it can consider only the evidence that was before the trial court when it made its ruling." Cowen v. M.S. Enters., Inc., 642 So. 2d 453, 454 (Ala.1994) (citing King v. Garrett, 613 So. 2d 1283 (Ala.1993); and Moody v. Hinton, 603 So. 2d 912 (Ala. 1992)). Applying the foregoing law to this case, we conclude that the Court of Criminal Appeals erred in allowing the State to supplement the record on appeal with exhibits which the State did not introduce at the original hearing on Campbell's motion to dismiss the charge of burglary in the third degree. Thus this Court cannot consider that evidence in determining whether the record supports the trial judge's denial of Campbell's motion to dismiss the charge of burglary in the third degree and the denial of Campbell's motion to withdraw *327 his guilty plea. Because the original record contained no evidence that an intervening indictment existed after the date the original indictment against Campbell was nol-prossed on June 13, 1991, and before the date the currently challenged indictment was returned against Campbell on September 13, 1996, the statute of limitations for commencing prosecution against Campbell for burglary in third degree expired three years after June 13, 1991. Consequently, the trial court erred in denying Campbell's motion to dismiss the burglary charge and in denying Campbell's motion to withdraw his guilty plea on that ground. Therefore we reverse the judgment of the Court of Criminal Appeals and render a judgment in favor of Campbell. REVERSED AND JUDGMENT RENDERED. MADDOX, COOK, and LYONS, JJ., concur. HOUSTON, J., concurs specially. HOOPER, C.J., and ENGLAND, J., dissent. BROWN, J., recuses herself.[*] HOUSTON, Justice (concurring specially). This Court is for the first time declaring that in criminal cases the statute of limitations is jurisdictional and that an indictment returned after the expiration of the limitations period for the offense charged in the indictment is void. As shown in the majority opinion, the Court of Criminal Appeals has taken this position for at least the past 13 years, even though that court recognized that "Alabama law [was] not entirely clear on the question whether a court presiding over a prosecution barred by the statute of limitations is without `jurisdiction.'" Cox v. State, 585 So. 2d 182, 193 (Ala.Crim.App.1991). HOOPER, Chief Justice (dissenting). I respectfully dissent. I do not agree that the Court of Criminal Appeals improperly remanded Campbell's case to the trial court for the State to prove the time of the prior indictments. In past cases, the Court of Criminal Appeals has, and this Court has not disagreed, remanded nonjurisdictional matters to the trial court for further proceedings. Examples include sentencings under the Habitual Felony Offender Act. As long as the defendant had notice, before the sentencing hearing, that he would be sentenced under the Habitual Felony Offender Act, remanding the case to the trial court for the State to provide certified evidence of prior convictions has not offended the requirement of due process or the defendant's rights under the law. Murphy v. State, 536 So. 2d 96 (Ala.Crim.App.1986); Pardue v. State, [CR-97-0551, December 18, 1998] ___ So.2d ___ (Ala.Crim.App.1998) (defendant claimed the State could not use his prior convictions in a posttrial Rule 32, Ala. R.Crim.P., hearing because at his original sentencing it had failed to produce certified copies of his prior convictions; the Court of Criminal Appeals found no error committed by the trial court). Not only did Campbell have notice of the previous indictments, an indictment is notice to a defendant. Campbell was not ignorant of the State's intentions, for the entire period from his arrest until his final conviction and sentencing, to prosecute him. *328 I consider the remand of this case by the Court of Criminal Appeals (giving the State the opportunity to prove the time periods covered by the indictments) to be analogous to a remand for the purpose of allowing the State to provide certified copies of prior convictions in compliance with the Habitual Felony Offender Act. Rule 10(g), Ala.R.Crim.P., is simply inapplicable; the State rightly never relied upon that rule. The discussion of that rule in the majority opinion appears to be gratuitous. Campbell was not prejudiced in any way, nor was he without notice of the indictments. I would affirm the judgment of the Court of Criminal Appeals. Therefore, I dissent. [1] Apparently, the basis for this seven-month gap admitted by the State is the period from the September 1990 reversal to the May 1991 reindictment claimed by the State. [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

July 28, 2000

310c9342-15c0-4576-a92d-502275544bfc

Radford v. State

783 So. 2d 13

1990342

Alabama

Alabama Supreme Court

783 So. 2d 13 (2000) Ex parte State of Alabama. (Re Willa RADFORD and one 1995 Nissan Maxima automobile, VIN JN1CA21D1ST64076 v. STATE of Alabama.) 1990342. Supreme Court of Alabama. July 21, 2000. Rehearing Denied September 1, 2000. *14 Bill Pryor, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for petitioner. John A. Lentine of Gorham & Waldrep, P.C., Birmingham, for respondent. SEE, Justice. This is a civil-forfeiture case involving a 1995 Nissan Maxima automobile. Following an ore tenus hearing, the trial court concluded that it was reasonably satisfied that the automobile "was used, or intended for use, in a transaction which would be a violation of the Alabama Controlled Substances Act," declared the automobile to be contraband, and ordered the automobile condemned and forfeited to the State. See Ala.Code 1975, § 20-2-93(a)(5); Pickron v. State ex rel. Johnston, 443 So. 2d 905, 907 (Ala.1983). Willa Radford, the owner of the car, appealed. The Court of Civil Appeals reversed the trial court's judgment, holding that the State had failed to prove a chain of custody concerning the drug evidence found near Radford's car and in her purse, and, thus, that that evidence was inadmissible. See Radford v. State, 783 So. 2d 8 (Ala.Civ.App.1999). We granted the State's petition for certiorari review. Because we conclude that the Court of Civil Appeals erred in reversing the trial court's judgment on the ground that the State had failed to prove a proper chain of custody, we reverse the judgment of the Court of Civil Appeals and remand the case for an order or further proceedings consistent with this opinion. On January 6, 1998, Officer Samuel Jackson III and his partner, Officer Chris Blevins, both members of the Birmingham Police Department's South Task Force, were working undercover patrol. The officers received a radio dispatch informing them that a white Nissan Maxima automobile, occupied by two black females and a black male, was approaching the 300 block of Beech Street and that it contained controlled substances. Jackson and Blevins went to the 300 block of Beech Street, where they saw a white Nissan Maxima occupied by two black females and a black male approach the block and stop in front of a house. The officers parked behind the car and approached it. As they approached, a female passenger jumped out and ran away; the officers did not pursue her. Willa Radford, the driver, opened the door and threw a package under the car. Officer Jackson retrieved the package, which he described as a cigarette package containing 23 plastic zipper "baggies," each less than 1-inch square, and each containing a crystalline substance he believed to be crack cocaine. Officer Jackson arrested Radford and searched the car. He found in Radford's purse two additional *15 "baggies" containing a similar crystalline substance. The State began civil-forfeiture proceedings against the Nissan Maxima automobile, by filing a petition seeking to condemn the vehicle pursuant to Ala.Code 1975, § 20-2-93. Radford filed an answer and a notice of her claim to the vehicle, admitting that she owned the vehicle but denying the other allegations in the State's petition. The case was tried to the court. At the trial, Officer Jackson testified that he turned over the bags containing the crystalline substance to an Officer Bussey at the Birmingham Police Department. Danny Kirkpatrick of the Alabama Department of Forensic Sciences testified that he received from Officer Bussey two packages containing the bags. Kirkpatrick further testified, without objection, that he tested the crystalline substances contained in seven of the bags (5 of the 23 and the 2 found in Radford's purse) and found them to be cocaine. After the State rested its case, Radford moved to have the case dismissed, arguing, among other things, that the State had failed to prove a proper chain of custody regarding the bags. The trial court implicitly denied that motion by declaring the automobile contraband and ordering it condemned and forfeited to the State. The Court of Civil Appeals reversed the trial court's judgment, holding that the State had failed to establish a proper chain of custody because it had failed to show how Officer Jackson or Officer Bussey handled or safeguarded the bags that Kirkpatrick found to contain cocaine. "Therefore," the Court of Civil Appeals held, "the evidence regarding the substance that was recovered by Jackson and later determined to be crack cocaine was inadmissible." 783 So. 2d at 12. However, after examining the record, including the trial transcript, we find that the State did not proffer the bags at trial. Moreover, Radford never objected during Officer Jackson's testimony or Kirkpatrick's testimony concerning the bags on the ground of a failure to prove a proper chain of custody. "It is a generally accepted principle, as set forth in the Alabama Rules of Evidence, that a party against whom inadmissible evidence is offered must make a formal, specific objection." 1 Charles W. Gamble, McElroy's Alabama Evidence § 426.01(1) (5th ed.1996) (citing Rule 103(a), Ala.R.Evid.). The objection must also be timely. See Rule 103(a), Ala.R.Evid.; General Motors Corp. v. Johnston, 592 So. 2d 1054, 1057-58 (Ala. 1992) (holding that, where the defendant did not object before the plaintiff's expert testified, the defendant's motion to strike that witness's testimony, made after the close of the plaintiff's case, was insufficient to preserve for appellate review an alleged error regarding the admission of that testimony). "Such an objection is a condition precedent to the party's effectual complaint on appeal against the reception of such evidence." Gamble, McElroy's Alabama Evidence § 426.01(1). Because Radford did not preserve for appellate review the issue whether the trial court erred in admitting any evidence regarding which the State was required to prove a chain of custody, the Court of Civil Appeals erred in reversing the trial court's judgment on the chain-of-custody ground. See $1,568.00 U.S. Currency v. State, 612 So. 2d 497, 500 (Ala.Civ.App.1992) (holding, in a civil-forfeiture case in which the property owner argued that there was a break in the chain of custody of evidence, that the property owner had failed to preserve his argument for appeal and that, therefore, the court could not reverse the trial court's judgment on that basis). Accordingly, *16 we reverse the judgment of the Court of Civil Appeals and remand the case for an order or proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.

July 21, 2000

da1a5ae2-35c6-4adf-9af8-6e9de6d81ee9

Ex Parte Griffin

790 So. 2d 351

1991354

Alabama

Alabama Supreme Court

790 So. 2d 351 (2000) Ex parte Louis GRIFFIN. (In re Louis Griffin v. State of Alabama). 1991354. Supreme Court of Alabama. August 18, 2000. Rehearing Denied October 27, 2000. *352 J.T. Simonetti, Jr., Birmingham; and Drew Colfax, Equal Justice Initiative, Montgomery, for petitioner. Bill Pryor, atty. gen., and James R. Houts, asst. atty. gen., for respondent. HOUSTON, Justice. Louis Griffin was convicted of capital murder for the death of Christopher Davis and was sentenced to death. The Court of Criminal Appeals affirmed the conviction and sentence. Griffin v. State, 790 So. 2d 267 (Ala.Crim.App.1999). We granted certiorari review, and we now reverse and remand. Christopher Davis was killed on September 24, 1992. Two men were arrested in regard to the killing, Anthony Embry and Falanda Miles. Both were indicted for murder, based on eyewitness testimony and other evidence. Embry pleaded guilty to the charge of murder and was sentenced to 20 years' imprisonment.[1] Miles was tried and was acquitted by a jury. The Davis murder case was closed until April 1996, when Griffin pleaded guilty to violations of the federal Racketeer Influenced and Corrupt Organizations Act (RICO), in the United States District Court for the Southern District of New York. Griffin was the "security man" for the 142d Street Lynch Mob Crew ("the Crew") in New York City. The Crew supplies illegal drugs to sellers in various parts of the country, including Alabama. Griffin's RICO charge arose out of his involvement in this operation. In his plea, Griffin entered an allocution in which he stated that he had participated in the death of Davis in September 1992.[2] As a *353 result of this testimony, authorities in Alabama exonerated Embry for the murder of Davis and initiated proceedings against Griffin. At trial, Griffin claimed that he had lied to the federal court in order to receive favorable treatment, but that in reality he had not killed Davis. In order to support this contention, he attempted to present evidence indicating that the State had initially believed someone else committed the crime. Specifically, he sought to introduce evidence indicating: (1) that after the initial police investigation into Davis's death, the State charged Miles and Embry with the offense; (2) that Embry admitted to the murder while under oath in an Alabama court, by pleading guilty; (3) that Embry was convicted of the offense pursuant to a plea agreement, and served four years in Alabama prisons for Davis's death before the State decided to prosecute Griffin; and (4) that a state court ex mero motu dismissed the valid plea of Embry. After an in limine hearing, the trial court excluded this evidence as inadmissible. Griffin contends that by preventing him from presenting this evidence, the trial court violated the defendant's right to present a defense, a right guaranteed by the 4th, 5th, 6th, 8th, and 14th Amendments to the United States Constitution and by the equivalent portions of the Alabama Constitution and by Alabama law. We agree. The United States Supreme Court has held that a defendant has a right to put on a defense and that that right includes the opportunity to present evidence proving that another person committed the offense for which he has been charged. See Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). However, this right is not absolute; instead, the trial court will have to consider the admissibility of such evidence in conjunction with other legitimate interests involved in the trial process. Chambers, 410 U.S. at 295; see also Guam v. Ignacio, 10 F.3d 608 (9th Cir.1993). As a result, the trial court is presented with a balancing test in order to determine whether the evidence of a third party's culpability is properly admissible: United States v. Johnson, 904 F. Supp. 1303, 1311 (M.D.Ala.1995) (citations omitted). In weighing those interests, the federal courts have required the defendant to show that the evidence he is offering is probative and not merely speculation that would confuse the jury: Id. (citations omitted). Like the federal courts, Alabama courts have long recognized the right of a *354 defendant to prove his innocence by presenting evidence that another person actually committed the crime. See Ex parte Walker, 623 So. 2d 281 (Ala.1992); Thomas v. State, 539 So. 2d 375 (Ala.Crim.App. 1988); Green v. State, 258 Ala. 471, 64 So. 2d 84 (1953); Underwood v. State, 239 Ala. 29, 193 So. 155 (1939); Orr v. State, 225 Ala. 642, 144 So. 867 (1932); Houston v. State, 208 Ala. 660, 95 So. 145 (1923); Tennison v. State, 183 Ala. 1, 62 So. 780 (1913); McGehee v. State, 171 Ala. 19, 55 So. 159 (1911); McDonald v. State, 165 Ala. 85, 51 So. 629 (1910). In addition, Alabama courts have also recognized the danger in confusing the jury with mere speculation concerning the guilt of a third party: Charles W. Gamble, McElroy's Alabama Evidence § 48.01(1) (5th ed.1996). To remove this difficulty, this Court has set out a test intended to ensure that any evidence offered for this purpose is admissible only when it is probative and not merely speculative. Three elements must exist before this evidence can be ruled admissible: (1) the evidence "must relate to the `res gestae' of the crime"; (2) the evidence must exclude the accused as a perpetrator of the offense; and (3) the evidence "would have to be admissible if the third party was on trial." See Ex parte Walker, 623 So. 2d at 284, and Thomas, 539 So. 2d at 394-96. We find these elements present in Griffin's case. The evidence Griffin offered certainly relates to the res gestae of the offense. Likewise, if believed by a jury, that evidence would also exclude Griffin as Davis's killer. Finally, the evidence would be admissible if Embry and Miles were on trial. Therefore, any documents that pertain to this probative theory should be admissible. The State makes an additional argument as to Embry's guilty plea. It apparently argues in its brief that, even if the evidence of the plea passes the three-pronged test, at Griffin's trial Embry's plea is still hearsay that does not fall within any exception. Professor Gamble has stated: McElroy's Alabama Evidence, § 48.01(1). However, Gamble also notes that a situation could arise where "an accused's constitutional right to present his defense would dictate admission of evidence suggesting another's guilt." Id. The United States Supreme Court has encountered such a situation, where the defendant's due-process rights conflicted with the rules of evidence. In Chambers, the Court stated: "In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." 410 U.S. at 302, 93 S. Ct. 1038. In addition, lower federal courts have discussed this rule of law. In Johnson, *355 supra, the United States District Court for the Middle District of Alabama stated in dicta that the defendant could present evidence of a third-party's culpability even if the evidence had been hearsay, because it was probative; to prevent its admission into evidence would violate the defendant's constitutional rights. 904 F. Supp. at 1311. We are faced with the same general situation here. Without Embry's plea, Griffin will not be able to place his defense before a jury; to bar him from placing his defense before the jury would violate his due-process rights under the 5th and 6th Amendments. Furthermore, as we have noted above, this alternative theory of the crime that Griffin sought to present is not speculative, but probative, and Embry's plea, along with the evidence of the arrests and the exoneration, is some of the strongest evidence Griffin could present to the jury to prove that someone else committed the crime. Rather than violate Griffin's right to due process, we follow the United States Supreme Court's holding in Chambers and hold that Griffin's constitutional rights supersede the hearsay rule in the Alabama Rules of Evidence. However, in doing so, we note that not in every case will the defendant's right to present his defense supersede the hearsay rule; it will supersede that rule only in those cases that, as indicated by the first two elements of the test stated above, have a probative alternative theory of culpability and not an alternative theory that is merely speculative and meant only to confuse the jury. Therefore, we reverse the judgment of the Court of Criminal Appeals and remand the case for further proceedings. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX,[*] LYONS, and ENGLAND, JJ., concur. JOHNSTONE, J., concurs specially. COOK, SEE, and BROWN, JJ., dissent. JOHNSTONE, Justice (concurring specially). I concur specially, subject to my understanding of one of the three essential elements stated by the main opinion for the admissibility of evidence that another person committed the crime. The majority states the elements as follows: I understand that the second element, that "the evidence must exclude the accused as a perpetrator of the crime," does not mean that the particular evidence of another's guilt must, all by itself, exclude the accused as a perpetrator of the offense. Rather, I understand the second element to mean that the evidence of another's guilt, coupled with other evidence introduced or to be introduced in the case, if believed, excludes the accused as a perpetrator of the offense. This interpretation is necessary to secure the defendant's due-process right to present his defense. I will explain. While a defendant does' not bear the burden of proof, as a practical matter, the defendant optimizes his chances for persuading the jury to acquit him only if his defense accomplishes two functions. First, his defense must at least raise a reasonable doubt of his own participation in the crime. Second, and equally as importantly, *356 his defense must provide a reasonable explanation of the evidence of the crime consistent with the defendant's innocence. Evidence that another committed the crime accomplishes this second purpose. When the State has proved the corpus delicti, the jury is unlikely to accept the defendant's explanation of nonparticipation or to doubt his participation unless the jury has some explanation for the corpus delicti other than the defendant's participation in the crime or commission of the crime. Thus due process requires that a defendant be allowed to present the jury with an alternative object for its wrath if the defendant has legitimate evidence of one and has a reasonable theory of his own nonparticipation. COOK, Justice (dissenting). The defendant's murder conviction and sentence of death are being reversed on the ground that the trial court should have allowed the defendant Louis Griffin to introduce evidence, through court records, that one Embry (1) confessed to, and (2) was convicted of, the crime. The trial court disallowed the evidence, on the ground that the evidence of the confession and conviction was hearsay and immaterial. The Court of Criminal Appeals thoroughly addressed this issue and resolved it adversely to Griffin. The cases cited by the majority are distinguishable. For example, the main opinion references Thomas v. State, 539 So. 2d 375, 394-96 (Ala.Crim.App.1988). However, the Court of Criminal Appeals stated in Thomas: 539 So. 2d at 395-96 (emphasis in original). The evidence regarding Embry's confession and conviction is not legal evidence. As the Court of Criminal Appeals stated: Griffin v. State, 790 So. 2d 267, 282 (Ala. Crim.App.1999). I do not disagree with the constitutional concept that the hearsay rule may not be mechanistically applied where to so apply it would adversely affect the defendant's exercise of constitutional rights implicated in the determination of guilt. The genesis of my disagreement in this case arises, not from the evidence Griffin attempted to admit, but from how he proposed to get it admitted. The State points out that Griffin made no attempt to call Embry to testify. Thus, it asserts, Griffin cannot rely on the hearsay "exceptions" set forth in Ala.R.Evid. 804, which turn on the declarant's unavailability. In that respect, this case is materially *358 different from Chambers, in which the declarant was available to testify. Thus, I conclude that the trial court did not err in disallowing court records showing Embry's confession and conviction. For these reasons, I dissent. SEE, Justice (dissenting). I dissent from the holding that by excluding from evidence certain court documents the trial court denied Griffin the right to put on a defense. Griffin says that the excluded documents indicate that two other men were previously prosecuted for Davis's murder and that one of those men, Anthony Embry, pleaded guilty to the murder. In fact, the documents at issue are not probative. Griffin sought to introduce a copy of the order of the Jefferson Circuit Court accepting Anthony Embry's plea of guilt to a charge of murder and sentencing him to imprisonment for 20 years and 30 days. The trial court properly excluded this document. The document does not state that Embry pleaded guilty to the murder of Davis; it does not mention the victim's name at all. It does refer to "Court's Exhibit A," but "Court's Exhibit A" is not in the record before this Court. Accordingly, we cannot determine whether that document would have been probative of Embry's guilt and Griffin's innocence. The order accepting Embry's guilty plea is not relevant evidence because it does not have "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401, Ala.R.Evid. Accordingly, that document was not admissible, and the trial court properly excluded it. Rule 402, Ala.R.Evid. The remaining documents offered by Griffin include copies of motions, docket sheets, and other miscellaneous documents that have no evidentiary value whatever. The trial court did not err in excluding these documents. I agree that it would have been error for the trial court to preclude Griffin from presenting evidence indicating that Embry and Miles, and not Griffin and his accomplices, murdered Davis. That is not what happened in this case. Griffin could have subpoenaed Embry or Miles, but he did not.[3] I have not found in the record the exclusion of any evidence offered by Griffin that met the three elements for the admissibility of the evidence of another's guilt set forth in the main opinion: "(1) the evidence `must relate to the "res gestae" of the crime'; (2) the evidence must exclude the accused as a perpetrator of the offense; and (3) the evidence `would have to be admissible if the third party was on trial.'" 790 So. 2d at 354 (citing Ex parte Walker, 623 So. 2d 281, 284 (Ala.1992); Thomas v. State, 539 So. 2d 375, 394-96 (Ala.Crim.App.1988)). Accordingly, I dissent. [1] Justice See states in his dissenting opinion: "Griffin sought to introduce a copy of the order of the Jefferson County Circuit Court accepting Anthony Embry's plea of guilt to a charge of murder and sentencing him to imprisonment for 20 years and 30 days. The trial court properly excluded this document. The document does not state that Embry pleaded guilty to the murder of Davis; it does not mention the victim's name at all.... Accordingly, we cannot determine whether that document would have been probative of Embry's guilt and Griffin's innocence." 790 So. 2d at 358. Neither the State nor the Court of Criminal Appeals has suggested that Embry did not plead guilty to murdering Christopher Davis. In fact, the Court of Criminal Appeals states in its opinion that Embry did so. Furthermore, the record before us contains a copy of the indictment alleging that Embry had "intentionally cause[d] the death of another person Christopher Lynn Davis, by shooting him with a pistol;" a copy of an arrest warrant alleging the same; and a "Motion To Set Aside Plea," filed by the State and requesting that the judgment entered on Embry's guilty plea be set aside. That motion stated: "On or about May 4, 1993, Defendant [Anthony Embry] pleaded guilty to the murder of Christopher Lynn Davis." There is no question, based on the record before us, that Embry was indicted for, and pleaded guilty to, the murder of Christopher Davis. [2] Griffin's pertinent testimony at the allocution was as follows: "Q. Directing your attention to September 24, 1992, did you agree to participate in the murder of someone in Alabama? "A. Yes. "Q. Did you come to learn that that person's name was Christopher Lynn Davis? "A. Yes. ". . . . "Q. Did you in fact participate in the murder of Christopher Lynn Davis? "A. Yes. "Q. And was that in Alabama? "A. Yes." [*] Although Justice Maddox did not sit for oral argument in this case, he has listened to the tapes. [3] Griffin did call as a witness Chiquita Norman, who was at the scene of the murder but did not see the actual shooting. Norman testified that she had identified Embry in police photographs as someone she had seen before but not as someone she saw at the crime scene.

August 18, 2000

18da5843-5217-4b65-8461-4e2b70938c08

Ex Parte Flint Const. Co.

775 So. 2d 805

1990877

Alabama

Alabama Supreme Court

775 So. 2d 805 (2000) Ex parte FLINT CONSTRUCTION COMPANY. (Re Robert Lee Hall, Jr. v. Flint Construction Company et al.) 1990877. Supreme Court of Alabama. July 28, 2000. *806 Donald B. Kirkpatrick II and W. Bradford Kittrell of Carr, Allison, Pugh, Howard, Oliver & Sisson, Birmingham; and Larry Stine of Wimberly, Lawson, Steckel, Nelson & Schneider, P.C., Atlanta, Georgia, for petitioner. John A. Owens and Apsilah Owens Millsaps of Owens & Almond, L.L.P., Tuscaloosa, for respondent. MADDOX, Justice. Flint Construction Company, a defendant in an action pending in the Pickens Circuit Court, petitions for a writ of mandamus directing the circuit court to grant its motion to dismiss for lack of subject-matter jurisdiction. We deny the petition. Robert Lee Hall, Jr., is a resident of Pickens County. In 1980, Hall was hired by Flint Construction Company; the contract of employment was entered in Reform, Alabama. Flint is a Georgia Corporation and has only one business office, which is located in Lawrenceville, Georgia. Hall worked for Flint from 1980 to 1986 on a part-time basis and was promoted in 1986 to the position of full-time foreman. During his employment with Flint, Hall worked in various southeastern states, including Alabama, and he worked for Flint until 1997, when his employment was terminated. Hall suffered two on-the-job injuries while working for Flint in 1990; both injuries occurred in Georgia. Following these injuries, Hall made workers' compensation claims relating to them, and Flint and Hall sought to settle those claims in the Pickens County Circuit Court. They entered into two settlement agreements (dated December 14, 1993, and May 10, 1996, respectively) whereby they agreed that "they [were] subject to the provisions of the Workmen's Compensation Statute of Alabama, as amended." In April 1997, Hall was injured in an on-the-job accident in Bastrop, Louisiana. In June 1997, Flint terminated Hall's employment. In April 1999, Hall sued Flint in the Pickens County Circuit Court for workers' compensation benefits and for damages for retaliatory discharge, intentional infliction of emotional distress (the tort of outrage), and fraud. In response to Hall's complaint, Flint moved to dismiss for lack of subject-matter jurisdiction. Hall opposed Flint's motion by arguing that he is a resident of Alabama, that he was working pursuant to a contract of hire entered into in Alabama, and that his employment was not localized in any state, and that he therefore met the threshold requirements for bringing his claims in Alabama, pursuant to § 25-5-35, Ala.Code 1975. Hall also pointed out that Flint had previously agreed that Alabama had jurisdiction over similar workers' compensation claims brought by Hall while he was employed by Flint. Flint contended that the previous settlement agreements it had entered into with Hall were not relevant to this dispute. It also asserted that Hall's employment had changed in 1986, and, therefore, that when Hall accepted the full-time position with Flinta position Flint says he accepted while he was at Flint's office in Georgia his employment then became "pursuant to a contract for hire in Georgia." See § 25-5-35(d)(2), *807 Ala.Code 1975.[1] Flint also argued that Hall's employment had been "principally localized" in Georgia. See Id. The trial court held that it had subject-matter jurisdiction over Hall's claims. In its order denying Flint's motion to dismiss, the court wrote: Flint's mandamus petition seeks review of the trial court's order denying its motion to dismiss. Flint argues that the trial court erred in denying its motion to dismiss Hall's claims because, it says, neither the doctrine of estoppel nor the stipulations of the parties have any bearing on the scope of a court's subject-matter jurisdiction. Flint contends that regardless of what the prior settlement petitions may have asserted, those prior settlement agreements are irrelevant to the question at hand, which is whether the trial court had the authority to hear Hall's claims in this case. Flint therefore asserts that its mandamus petition is due to be granted. We disagree. We note that a lack of subject-matter jurisdiction may be raised at any time, and that the question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Johnson, 715 So. 2d 783, 785 (Ala.1998); see also Ex parte Alfa Mut. Gen. Ins. Co., 684 So. 2d 1281 (Ala.1996); Forrester v. Putman, 409 So. 2d 773 (Ala.1981); and Norton v. Liddell, 280 Ala. 353, 194 So. 2d 514 (1967); but see Ex parte Jefferson County, 767 So. 2d 343 (Ala.2000) (holding that a mandamus petition was not the appropriate procedural vehicle for presenting the issue of lack of subject-matter jurisdiction); and Ex parte Spears, 621 So. 2d 1255 (Ala.1993) (holding that mandamus relief is restricted to the case where a recognized exception applies or to the extraordinary case where the rights of a party cannot be adequately protected by appellate review of a final judgment). This Court has consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the writ of mandamus only when (1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court's jurisdiction is properly invoked. Ex parte Mercury Fin. Corp., 715 So. 2d 196, 198 (Ala.1997). Because mandamus is an extraordinary remedy, the standard by which this Court reviews a petition for the writ of mandamus is to determine whether the trial court has clearly abused its discretion. See Ex parte Rudolph, 515 So. 2d 704, 706 (Ala. 1987). Our examination of the record and the briefs convinces us that the trial judge did not err in finding that Hall's employment was not localized in any particular state and that it was pursuant to a contract for hire entered into in Alabama. Thus, the court did not abuse its discretion by holding that it had subject-matter jurisdiction over Hall's claims. It was incumbent upon Flint to show that it had a clear legal right to the relief sought; it did not show that. Therefore, the petition for the writ of mandamus is denied. WRIT DENIED. HOOPER, C.J., and COOK and LYONS, JJ., concur. JOHNSTONE, J., concurs in the result. [1] Section 25-5-35, Ala.Code 1975, in pertinent part, reads: "(d) If an employee, while working outside of this state, suffers an injury on account of which he ... would have been entitled to the benefits provided by this article and Article 3 of this chapter had such injury occurred within this state, such employee ... shall be entitled to the benefits provided by this article and Article 3 of this chapter, provided that at the time of such injury: ". . . . "(2) He was working under a contract of hire made in this state in employment not principally localized in any state ...."

July 28, 2000

cb760234-e4db-416d-9d20-07498a6adc0f

Ex Parte Simmons

791 So. 2d 371

1980570

Alabama

Alabama Supreme Court

791 So. 2d 371 (2000) Ex parte Laura A. SIMMONS. (In re Laura A. Simmons v. Congress Life Insurance Company and Insurers Administrative Corporation). 1980570. Supreme Court of Alabama. August 11, 2000. *372 George W. Finkbohner III and Royce A. Ray III of Finkbohner & Lawler, L.L.C., Mobile, for petitioner. Forrest S. Latta, John Charles S. Pierce, and Michael A. Montgomery of Pierce, Ledyard, Latta & Wasden, P.C., Mobile, for respondents. LYONS, Justice. The plaintiff Laura A. Simmons appealed to this Court from summary judgments in favor of Congress Life Insurance Company ("Congress") and Insurers Administrative Corporation ("IAC") on her claims alleging bad-faith refusal to pay, or to investigate, certain health-insurance claims. She also appealed from a partial summary judgment in favor of Congress and IAC on her claim alleging breach of the insurance contract. Congress and IAC cross-appealed from the trial court's denial of their motion to "reform" the insurance contract. We transferred the appeals to the Court of Civil Appeals, pursuant to § 12-2-7(6), Ala.Code 1975. The Court of Civil Appeals affirmed the judgments *373 of the trial court; see Simmons v. Congress Life Ins. Co., 791 So. 2d 360 (Ala. Civ.App.1998). We granted Simmons's petition for certiorari review.[1] We affirm the judgment of the Court of Civil Appeals in part, reverse it in part, vacate it in part, and remand. On May 6, 1994, Simmons applied for group health-insurance coverage with Congress. The application for insurance with Congress asked several questions about the applicant's medical history during the preceding five years. One question specifically asked whether the applicant had "[b]een diagnosed or treated for ... back disorder." Simmons checked the "no" box next to this question. From August 1992 until September 1993, however, Simmons had been treated by a chiropractor for chronic back pain.[2] She later was diagnosed as having scoliosis (curvature of the spine), which was thought to be the source of her pain. Congress offers coverage for two different groups under two different insurance plans. The "Insight plan" is designed to insure individuals whose employers procure group health insurance for them and pay premiums to Congress for their employees' health insurance. Persons insured under the Insight plan are covered under a policy issued to the Multiple Unit Security Trust I ("MUST I"). The "Insight Answer plan" is designed to insure individuals whose employers do not procure group health insurance for them and who pay premiums themselves to Congress for their health insurance. Persons insured under the Insight Answer plan are covered under a policy issued to the Multiple Unit Security Trust II ("MUST II"). The two policies define "pre-existing medical condition" differently. Under the MUST I policy, "pre-existing condition" is defined as "any ... sickness for which the individual received any medical care or treatment within the six (6) month period immediately prior to the effective date of the Major Medical Expense Benefits with respect to the individual." Under the MUST II policy, "pre-existing condition" is far more broadly defined as "any ... sickness, or any complications therefrom, for which medical treatment, ... advice or consultation was rendered to the Insured, or which produced distinct symptoms in the Insured which would have caused an ordinary prudent person to seek medical diagnosis or treatment within the twelve (12) months preceding the Insured's effective date." Because her employer did not provide health insurance, Simmons applied to Congress for coverage under the MUST II policy. Congress issued Simmons a certificate of insurance with an effective date of May 31, 1994, "if [the insured was] then at active, full-time work," under a group policy issued to the "Multiple Unit Security Trust [no Roman numeral]" as the policyholder. The certificate sent to Simmons contained the definition of "pre-existing condition" found in MUST I policies. The front of the certificate stated that the certificate itself "summarizes the provisions of the Policy as they may affect you" and that the certificate is "merely evidence of insurance under the Policy." Shortly after the effective date of her coverage, Simmons's primary-care physician referred her to Dr. Richard Sawyer, a neurologist, for consultation in identifying the cause of medical problems Simmons *374 was then experiencing. Dr. Sawyer's notes reflect that Simmons reported that she was experiencing pain and numbness in various parts of her body. Dr. Sawyer ordered a battery of tests and recommended to Simmons that she also consult an orthopedic surgeon. Simmons's medical providers submitted five claims to Congress for payment of medical services rendered to her during this period, designated as claims 996006, 995855, 995854, 995276, and 995519. These claims contained diagnostic codes that identified the condition giving rise to the medical services as "lumbago/pain low back," "backache, unspecified," "pain in joint," "migraine, unspecified," "pain in neck/cervicalgia," "congenital musculoskeletal deformity of spine (postural: lordosis scoliosis)," and "disturbance of skin sensation." Dr. Sawyer's office notes concerning his treatment of Simmons were also submitted with the claims. In these notes, Dr. Sawyer stated on June 22, 1994, that Simmons had been "referred for a variety of aches and pains of at least several months['] duration. [She] reports a constellation of symptoms which probably began about 6 mo. ago.... She saw a chiropractor during this time and he diagnosed mild scoliosis and left sciatica." (See the opinion of the Court of Civil Appeals for the text of Dr. Sawyer's notes, 791 So.2d at 363). On June 30, Dr. Sawyer's notes reflected that he thought Simmons's problems might be caused by multiple sclerosis. Simmons continued to undergo diagnostic testing and treatment by Dr. Sawyer and other medical-service providers during the next three months. IAC is the third-party that administers claims submitted to Congress under the MUST policies. Upon receiving Simmons's first five claims and Dr. Sawyer's June 22 office notes, an IAC benefits analyst recommended that Simmons's claims be denied as related to a preexisting condition, under the "prudent person" standard of the MUST II policy. IAC's records indicated that Simmons was insured under the MUST II policy, and its employees did not know at that time that she had actually received a certificate of insurance referring only to a "MUST" policy and containing the definition of "pre-existing condition" applicable to the MUST I policy. In September 1994, IAC informed Simmons that it had denied her claims because, it said, she had incurred medical services for a preexisting condition. When Simmons telephoned IAC to inquire about the denial of her claims, an IAC employee told her that she had the right to appeal if she did not agree with the manner in which the claims had been processed, and that she would need documentation from a physician stating why her condition was not a "pre-existing" one. In December 1994, Simmons sent IAC a handwritten letter requesting that it reconsider her claims. That letter states: Simmons sent with her letter records from her chiropractor regarding her treatment through May 1993 and a letter from Dr. Sawyer stating that "[a]fter [a] thorough evaluation, [he] felt [Simmons] had multiple sclerosis" and that the multiple sclerosis "ha[d] nothing to do with the previous *375 scoliosis and sciatica diagnosed by the chiropractor who had seen her in the past." Susan Foote, the IAC employee who reviewed Simmons's appeal, testified that after she read Simmons's letter and enclosures, the first thing she did was to confer with Bill Toole, Congress's consultant to IAC. Foote testified that Toole reviewed all claims that had been denied on the basis of a preexisting condition as judged by the "prudent person" standard. Foote said she had determined that the chiropractor's records forwarded by Simmons did not include records of the last four months of her treatment and that she advised Toole that the records were incomplete. She also testified that she asked him "whether or not the records that we did have in-house created an underwriting issue, as this was information for treatment prior to her effective date that was not disclosed on her application for coverage." She stated that Toole advised her to get the additional records and then to forward those records to the underwriting department. Foote testified that on several occasions IAC requested the complete records from the chiropractor, but that it never received them. Foote also testified that she "generated a system letter" advising Simmons that IAC had received her appeal, was waiting for complete records from the chiropractor, and "would advise her of the outcome once that information had been received." IAC conducted no further investigation of Simmons's appeal after it was unable to obtain a complete set of the chiropractor's records concerning the treatment she had received for back pain before she was insured with Congress. Foote testified that in March 1995 she decided "to suspend the activity on the appeal for lack of the requested information." She also testified that she drafted a letter to the chiropractor and sent a "system-generated letter" to Simmons, notifying both of them that IAC was suspending activity on the appeal and could not proceed further unless it received the chiropractor's records for June through September 1993. During the pendency of the appeal, Simmons continued to file insurance claims with IAC under her MUST policy with Congress. IAC denied all claims that contained a diagnosis code referring to back, neck, or joint pain or "disturbance of skin sensation," on the basis of the "prudentperson" preexisting-condition exclusion. An IAC representative testified that IAC paid the few claims that contained the diagnosis code for multiple sclerosis and also paid claims for a condition that clearly was not related to the pain Simmons was experiencing in her back and neck. During this time, Congress raised Simmons's health-insurance premium four times. Her initial monthly premium payment was $76.70. Two years later, her monthly premium had increased to $164.70. In May 1996, Simmons stopped making her premium payments because, she says, she could no longer afford them. Congress canceled her policy in June 1996. Simmons sued Congress and IAC, alleging breach of her health-insurance contract and bad-faith refusal to pay claims and to reconsider the denial of claims. She moved for a partial summary judgment on her breach-of-contract claim, asking the trial court to declare Congress and IAC contractually liable, but to reserve the issue of the amount of a compensatory-damages award for a jury to determine. Congress and IAC moved for a summary judgment on the breach-of-contract and bad-faith claims. Congress and IAC also filed what they styled as a "motion for reformation of contract," seeking to have Simmons's insurance contract changed to *376 reflect that her coverage was governed by the MUST II policy provisions that should have applied to her, rather than the MUST I policy provisions that she received. On January 9, 1997, the trial court denied Simmons's motion for a partial summary judgment on the contract claim because, it said, the issue was not ripe for determination. On January 15, 1997, Simmons moved for leave to amend her complaint to allege that IAC had denied 51 additional claims and to assert that the denials and premium increases had caused her to allow her policy to lapse in May 1996. That motion remains pending in the trial court. On January 27, 1997, the trial court entered a summary judgment in favor of Congress and IAC as to Simmons's bad-faith claims, but denied their motion for a summary judgment as to her breach-of-contract claim. The court also denied Congress and IAC's motion for "reformation" of the contract. Congress and IAC then filed a motion in limine, or in the alternative, a motion for a partial summary judgment, concerning the scope of the damages Simmons was seeking in her breach-of-contract claim. Congress and IAC argued that because Simmons had allowed her policy to lapse, she should not be allowed to seek the future value of medical benefits that would have been available to her under her insurance policy. IAC also moved separately for a summary judgment on the ground that, as a contract administrator, it was not a party to the insurance contract. Simmons opposed both of these motions. On October 16, 1997, the trial court entered a partial summary judgment in favor of Congress and IAC on the issue of the scope of the damages Simmons would be allowed to seek on her breach-of-contract claim, holding that she could not seek to recover "as damages the value of her `future' contract claims." On November 21, 1997, the court entered a summary judgment in favor of IAC on all of Simmons's claims against it. On February 7, 1998, the trial court, acting pursuant to Rule 54(b), Ala.R.Civ.P., entered an order purporting to make its four rulings final. In her certiorari petition, Simmons argued that the Court of Civil Appeals' affirmance of each of the trial court's rulings in favor of Congress and IAC conflicted with prior caselaw of this Court and the Court of Civil Appeals. This Court, by order of July 8, 1999, granted her certiorari petition in part, to review only the following issues: We denied Simmons's certiorari petition in all other respects. While Simmons's petition was before this Court, she asked this Court to remand the case for the limited purpose of allowing her to obtain leave of the trial court to amend her complaint to add Congress's successor corporations as defendants. In *377 the alternative, she asked this Court to allow her to file an amended complaint adding as defendants Philadelphia Life Insurance Company and Conseco Life Insurance Company. We carried Simmons's motion with the case and will address it in this opinion. In affirming the summary judgment in favor of Congress[3] on Simmons's claim alleging bad-faith failure to pay and to reconsider the denial of her insurance claims, the Court of Civil Appeals held: 791 So. 2d at 367-69 (footnotes omitted). We agree with the Court of Civil Appeals that Simmons did not submit substantial evidence indicating that IAC initially denied her claims in bad faith. We do not agree, however, with the Court of Civil Appeals' statement, made in reliance on Aetna Life Ins. Co. v. Lavoie, 505 So. 2d 1050 (Ala.1987), that "[i]f the tort of bad faith was committed, it was committed at the time of the original denial and no later." 791 So. 2d at 367. This Court has provided in two recent cases comprehensive discussions of the tort of bad-faith failure to pay an insurance claim grounded upon an insurer's failure to properly investigate the disputed claim. In Employees' Benefit Ass'n v. Grissett, 732 So. 2d 968 (Ala.1998), we stated: 732 So. 2d at 976 (footnote omitted). In State Farm Fire & Casualty Co. v. Slade, 747 So. 2d 293 (Ala.1999), we elaborated on the rule in the "abnormal" case. 747 So. 2d at 318. The Court of Civil Appeals has frozen the bad-faith inquiry at the moment of denial, in reliance upon Lavoie, supra. In Lavoie, this Court held that postdenial efforts to develop facts that would support a good-faith denial of the claim could not be used to overcome an initial denial made in bad faith and reiterated on numerous subsequent occasions before the insurer sought pertinent information that was missing from the file. It would stand the logic of Lavoie on its head to say that an insurer acting initially in good faith when denying a claim is thereafter exempt from liability for acting in bad faith if, notwithstanding information subsequently received on reconsideration, it declines in bad faith to alter its position. In Simmons's case, although IAC sought additional information during the "appeal" process, it perfunctorily "suspended activity" on her appeal, on the basis that it was unable to obtain a complete set of records *380 from her chiropractor.[4] Testimony from Foote, the IAC employee who reviewed Simmons's appeal, reflects that no meaningful investigation was ever undertaken. Lavoie does not serve as a shield to protect an insurer from the consequences of actions taken in bad faith during a "reconsideration" or an "appeal." Like the plaintiff in Grissett, Simmons submitted substantial evidence establishing a material question of fact regarding whether the insurer, through its administrator, "recklessly or intentionally failed to properly investigate [her] claim or to subject the results of an investigation to a cognitive evaluation." 732 So. 2d at 978. Cf. Gonzalez v. Blue Cross/Blue Shield of Alabama, 689 So. 2d 812 (Ala.1997); and King v. National Found. Life Ins. Co., 541 So. 2d 502 (Ala.1989), wherein this Court held that on reconsideration after a denial, the insurers conducted themselves so as to preclude a finding of bad faith. Therefore, the Court of Civil Appeals erred in affirming the summary judgment in favor of Congress on Simmons's bad-faith claims. Simmons argues that the Court of Civil Appeals erred in affirming the partial summary judgment in favor of Congress regarding her recovery of future damages based upon proof that Congress breached its contract of insurance. Simmons appealed as to this issue because the trial court entered a Rule 54(b) certification relating to its order limiting the scope of allowable compensatory damages on her breach-of-contract claim. However, Rule 54(b) does not contemplate an order purporting to make final an order disposing of only part of a claim. Ex parte Kimberly-Clark Corp., [Ms. 1990075, June 9, 2000].[*] Rule 54(b) applies only to entire claims, not to orders relating to the recoverability of some, but not all, of the damages a party may be seeking as the result of a claim. Haynes v. Alfa Fin. Corp., 730 So. 2d 178 (Ala.1999). As we stated in Haynes, "for a Rule 54(b) certification of finality to be effective, it must fully adjudicate at least one claim or fully dispose of the claims as they relate to at least one party." Id. at 181. Either of the parties could have sought permission to appeal this interlocutory order, pursuant to Rule 5, Ala.R.App.P., but neither did so. The partial summary judgment on the question of damages is an interlocutory order that is "subject to revision at any time" and therefore is not appealable. Rule 54(b). Therefore, the Court of Civil Appeals could not affirm that order; that portion of its judgment purporting to affirm that interlocutory order must be vacated. On March 31, 2000, Simmons moved this Court to remand her case "for the limited purpose of allowing [her] to obtain leave of the trial court to amend her complaint to add Philadelphia Life Insurance Company [`Philadelphia Life'] and Conseco Life Insurance Company [`Conseco'] as defendants herein ... to avoid a `failure to join necessary parties' argument by the Defendants." As support for her motion, Simmons refers us to the affidavit of Scott Wood, IAC's executive vice president and *382 chief operating officer, in which Wood states that "the MUST II group insurance policy was assumed by Philadelphia Life... on June 1, 1996." This affidavit appears in the record on appeal. Simmons also contends in her motion that Philadelphia Life merged with Conseco "on or around December 31, 1998." In the alternative, Simmons asked this Court to grant her motion for leave to amend. Simmons requested an immediate ruling on her motion, "to avoid any argument by the Defendants that the statute of limitations has run." In response to her motion, Congress contends there is no procedural authority by which this Court can allow a plaintiff to file an amended complaint in the trial court; that the motion relies upon information in an affidavit that was filed approximately three years ago; that there is no reason Simmons could not have waited and filed her motion to amend the complaint after the appeal is decided; and that Simmons does not cite any threat of immediate prejudice. Rule 25(c), Ala.R.Civ.P., directly addresses the action Simmons wishes to take in this case: Rule 25(c) clearly allows Simmons, upon remand, to continue her action against Congress or move the trial court to substitute or join Philadelphia Life and/or Conseco. We reverse the judgment of the Court of Civil Appeals insofar as it affirms the summary judgment in favor of Congress on Simmons's claim of bad faith, and we vacate the judgment of the Court of Civil Appeals insofar as it purports to affirm the partial summary judgment in favor of Congress on Simmons's claim for extracontractual damages. In all other respects, we affirm the judgment of the Court of Civil Appeals, and we remand for that court to enter an order consistent with this opinion. Because the Rules of Civil Procedure obviate Simmons's concerns that Congress could make failure-to-join or statute-of-limitations arguments, her motion to remand or for leave to amend her complaint is denied. MOTION TO REMAND OR FOR LEAVE TO AMEND COMPLAINT DENIED; AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART; AND REMANDED. HOOPER, C.J., and COOK, JOHNSTONE, and ENGLAND, JJ., concur. MADDOX, SEE, and BROWN, JJ., concur in the result. HOUSTON, J., concurs in part and dissents in part. MADDOX, Justice (concurring in the result). I concur in the result, and I refer the reader to my special concurrence in Employees' Benefit Ass'n v. Grissett, 732 So. 2d 968, 982 (Ala.1998), in which I stated that I believed this Court or the Legislature should provide an alternative remedy for cases such as this, as suggested by former Chief Justice Torbert in his dissenting opinion in Aetna Life Insurance Co. v. Lavoie, 470 So. 2d 1060 (Ala.1984). The fact that trial courts and this Court are still being presented with questions relating to when, and under what circumstances, a bad-faith cause of action can accrue, suggests that an alternative to the *383 bad-faith cause of action would be more appropriate. HOUSTON, Justice (concurring in part and dissenting in part). I dissent as to part III of the majority opinion. I would affirm the judgment of the Court of Civil Appeals affirming the summary judgment, but I disagree with its rationale. [1] Congress and IAC did not petition for certiorari review of the Court of Civil Appeals' affirmance of the judgment denying the motion to "reform" the insurance contract. [2] The question whether the contract of insurance could have been voided on the ground of fraud is not before us. [3] Because the Court of Civil Appeals has affirmed the trial court's summary judgment in favor of IAC as to all of Simmons's claims, and because we have not granted certiorari review as to any issue relating to that affirmance, our discussion of the issues we have agreed to review will be limited to issues relating to Simmons's claims as to Congress only. [4] Even though Grissett and Slade had not been decided at the time, the record reflects that Simmons argued to the trial court and to the Court of Civil Appeals that IAC's conduct during the appeal process would support a determination of bad-faith failure to pay or to reconsider the denial of her claims, both as to IAC and as to Congress. [*] Note from the reporter of decisions: On September 8, 2000, on application for rehearing, the Supreme Court withdrew its June 9, 2000, opinion in Kimberly-Clark and substituted another opinion. The June 9, 2000, opinion carried the judgment line "WRIT DENIED"; the opinion substituted on September 8, 2000, carried the judgment line "[REHEARING] APPLICATION GRANTED; OPINION OF JUNE 9, 2000, WITHDRAWN; OPINION SUBSTITUTED; PETITION GRANTED; WRIT ISSUED." See 779 So. 2d 178.

August 11, 2000

42fca7dc-7609-41a7-8967-d334b8fdd5ca

Anderson v. Alabama Reference Laboratories

778 So. 2d 806

1982182

Alabama

Alabama Supreme Court

778 So. 2d 806 (2000) Thomas Mark ANDERSON and Cynthia S. Anderson v. ALABAMA REFERENCE LABORATORIES. 1982182. Supreme Court of Alabama. August 18, 2000. *807 James R. McKoon, Jr., Phenix City, for appellants. Frank J. Stakely and Patrick M. Shegon of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee. SEE, Justice. The plaintiffs, Thomas Mark Anderson and his wife Cynthia S. Anderson, appeal from a summary judgment in favor of the defendant Alabama Reference Laboratories ("ARL"). We affirm. On September 13, 1995, Thomas Mark Anderson went to his physician, Dr. Keith Fuller, a family practitioner, complaining of various symptoms, including coughing up yellow-greenish sputum. Dr. Fuller diagnosed pneumonia and treated Anderson with antibiotics. He instructed Anderson to return on September 22. Anderson, however, returned two days later, on September 15, complaining of fatigue and high fever. Dr. Fuller again diagnosed pneumonia. As part of his treatment, Dr. Fuller collected a sputum specimen and sent it to ARL for testing. ARL tested the specimen, and the results were normal. ARL reported the results to Dr. Fuller. Anderson saw Dr. Fuller again on September 18 and 22. After the fourth visit, Anderson believed he had recovered from the pneumonia; he did not return to Dr. Fuller for any further treatment. On November 5, Dr. Fuller received another report from ARL concerning the results from the testing of Anderson's sputum specimen. That report stated that Anderson's sputum specimen was presumptively positive for tuberculosis. Dr. Fuller contacted Anderson's wife and asked that she and Anderson come to his office. They did. Dr. Fuller told Anderson that he had tuberculosis and prescribed various drugs to treat the disease. Dr. Fuller also told Anderson to report his disease to the local county health department. Dr. Fuller told Anderson, in the presence of Anderson's wife, who was then seven-months pregnant with the couple's first child, that persons with tuberculosis may also be infected with the human immunodeficiency virus (HIV), and he recommended that Anderson submit to an HIV test. Dr. Fuller instructed Anderson that, because tuberculosis is a highly communicable disease, he should tell any persons with whom he had close, daily contact that they should be tested for tuberculosis.[1] After his meeting with Dr. Fuller, Anderson reported to the local county health department, where he was required to sign a form promising to take the drugs for treatment of tuberculosis for one year. Anderson began taking the drugs. As a result of taking the drugs for tuberculosis, he suffered several side effects, including a rash, dizziness, fatigue, nausea, and repeated vomiting. On November 21, Dr. Fuller received another report from ARL. That report stated that Anderson's sputum specimen tested positive for tuberculosis and that ARL's finding of tuberculosis had been confirmed by the Alabama Department of Health State Laboratory. Dr. Fuller regarded this report as definitive proof that Anderson had tuberculosis. Approximately six weeks after he had initially diagnosed Anderson with tuberculosis, Dr. Fuller received a telephone call from either ARL or the State Health Department (Dr. Fuller said he does not recall which) and by that call was informed that DNA testing had been performed on Anderson's sputum sample. The DNA testing was performed by a microbiologist with the University of Alabama at Birmingham, as part of a state-sponsored study to determine the patterns of infection through Alabama. As a result of the DNA testing, it was discovered that Anderson's sputum specimen had been contaminated with another donor's specimen and that the tuberculosis bacterium in his specimen had come from that other person. Dr. Fuller then informed Anderson that the results of the test had been incorrect and that he did not have tuberculosis. On October 7, 1997, Anderson and his wife filed this action against ARL in the Russell Circuit Court. They alleged that *809 ARL had negligently, wantonly, or recklessly performed the tuberculosis testing on Anderson's sputum specimen and that it had committed "legal fraud" in reporting the results of the testing and had thereby caused him to suffer severe emotional distress and economic losses and had thereby caused his wife to suffer, among other harm, a loss of consortium. ARL moved to transfer the case, pursuant to Ala.Code 1975, § 6-5-546, a section of the Alabama Medical Liability Act of 1987 ("AMLA"),[2] from Russell County to Montgomery County, arguing that ARL's place of business is located in Montgomery County and that all of the acts or omissions alleged by Anderson occurred in that county. ARL also moved to dismiss the plaintiffs' fraud claims, arguing that the action was in substance a medical-malpractice action governed by the AMLA and, therefore, that the fraud claims were superseded by the AMLA, as provided by § 6-5-552. Anderson and his wife filed no opposition to ARL's motion to transfer or its motion to dismiss their fraud claims. The Russell Circuit Court transferred the action to the Montgomery Circuit Court, and that court granted ARL's motion to dismiss the Andersons' fraud claims.[3] Thereafter, ARL moved for a summary judgment on the plaintiffs' remaining claims. After a hearing on the summary-judgment motion, the trial court granted ARL's motion and entered a summary judgment in its favor. At the hearing, the trial judge ruled from the bench that the plaintiffs' action was subject to the AMLA and that Dr. Linda Pifer, their expert witness proffered in support of their claims, was not competent to testify concerning the alleged breach of the applicable standard of care. The plaintiffs appealed. The Andersons' appeal presents three issues: We first address the applicability of the AMLA to the defendant ARL. Because the second and third issues are interrelated, we address those issues together. The Andersons argue that ARL is not a "health care provider" within the meaning of the AMLA. The AMLA 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 Section 6-5-481." Ala.Code 1975, § 6-5-542(1). We agree with the Andersons, and ARL presents no argument to the contrary, that ARL does not fall within the definitions of the terms "medical practitioner," "dental practitioner," "medical institution," "physician," "dentist," or "hospital." See Ala.Code 1975, § 6-5-481. Thus, the question is whether ARL comes within the definition of "other health care providers." Section 6-5-481(8) defines "other health care providers" as "[a]ny professional corporation or any person employed by physicians, *810 dentists, or hospitals who are directly involved in the delivery of health care services." Although this Court has not expressly held that a reference laboratory is within the definition of "other health care provider," we have implicitly recognized that such an entity is subject to the AMLA. See Marsh v. Wenzel, 732 So. 2d 985 (Ala.1998); Guthrie v. Bio-Medical Laboratories, Inc., 442 So. 2d 92 (Ala.1983). In Marsh, this Court applied the statute of limitations provided under the AMLA, Ala.Code 1975, § 6-5-482, to a pathology laboratory in an action involving the laboratory's alleged failure to detect cancer in a tissue sample delivered to it by the plaintiff's physician for examination. In Guthrie, this Court applied the AMLA to a laboratory in an action involving the laboratory's alleged mistyping of the plaintiff's blood specimen, which had been sent to the laboratory by the plaintiff's physician for prenatal analysis. In Cackowski v. Wal-Mart Stores, Inc., 767 So. 2d 319 (Ala.2000), this Court held that a pharmacist is an "other health care provider" for purposes of the AMLA. In arriving at this holding, this Court construed the term "employed," as it is used in § 6-5-481, to encompass more than employment or contractual relationships between physicians and persons involved in the delivery of health-care services. See id. This Court construed "employed" to apply to a person of whom the physician makes use, or whose services the physician engages. See id. Accordingly, this Court concluded that a pharmacist is a healthcare provider for purposes of the AMLA "[b]ecause a pharmacist and/or a pharmacy is inextricably linked to a physician's treatment of his patients" and "the dispensing of drugs is an integral part of the delivery of health care services to the public." Id. Similarly, in this case, Dr. Fuller employed, or engaged the services of, ARL to test a sputum specimen of his patient, Mr. Anderson. The purpose of having ARL test Anderson's specimen was directly linked to Dr. Fuller's diagnosis and treatment of Anderson. Thus, ARL's testing of Anderson's specimen was an integral part of Dr. Fuller's delivery of health-care services to Anderson. Therefore, we hold that ARL falls within the AMLA's definition of "other health care provider." In a medical-malpractice action, once the defendant health-care provider offers in his, her, or its behalf expert testimony that makes a prima facie showing of a lack of negligence, the health-care provider is entitled to a summary judgment, unless the plaintiff produces substantial evidence indicating negligence. See Swendsen v. Gross, 530 So. 2d 764, 768 (Ala.1988). In support of its motion for summary judgment, ARL offered the affidavit of Jane Green; she is a medical technologist certified by the American Society of Clinical Pathologists ("ASCP") and was the supervisor of microbiology at ARL when it tested Mr. Anderson's sputum specimen. In her affidavit, Green states: We conclude that Green's affidavit was sufficient to shift the burden of production to the Andersons to produce substantial evidence in support of their claims. See Swendsen, 530 So. 2d at 769 (noting that "the defendants' conclusory affidavits shifted the burden of proof to the plaintiff"). As a general rule, in a medical-malpractice action, the plaintiff is required to produce expert medical testimony to establish the applicable standard of care and a breach of that standard of care, in order to satisfy the plaintiffs burden of proof. See Allred v. Shirley, 598 So. 2d 1347, 1350 (Ala.1992) (citing Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So. 2d 156, 161 (Ala.1984)). However, "[a]n exception to this rule exists `in a case where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it.'" Wyatt, 460 So. 2d at 161 (quoting Dimoff v. Maitre, 432 So. 2d 1225, 1226-27 (Ala. 1983)). This Court has recognized the following situations as falling within this exception: Allred, 598 So. 2d at 1350 (quoting Holt v. Godsil, 447 So. 2d 191, 192-93 (Ala.1984) (citations omitted in Allred)). This case clearly does not fall within the first, third, or fourth situation. The Andersons argue that the facts of this case fall within the second situation. Specifically, they argue that the false test result of tuberculosis was unrelated to Anderson's pneumonia for which he sought treatment from Dr. Fuller. We disagree. The second situation applies to such cases "as an injury to an arm and shoulder during an operation for appendicitis, or an injury to an eye during the same type of operation." Powell v. Mullins, 479 So. 2d 1119, 1121 (Ala. 1985) (citations and quotation marks omitted). In this case, the testing of Anderson's sputum sample was directly related to the condition for which he saw Dr. Fuller, namely, his coughing up sputum. Moreover, we find that tuberculosis testing requires a certain degree of "specialized training and knowledge that puts an understanding of the acceptable standard of care [in tuberculosis testing] beyond the common knowledge of the jury" and that "[l]aymen do not have the background and knowledge without expert testimony to understand whether or not [tuberculosis testing] has been properly [performed]." Wyatt, 460 So. 2d at 162. Therefore, we conclude that none of the exceptions to the requirement of expert testimony applies to the facts of this case. Accordingly, the Andersons were required to present medical expert testimony in opposition to ARL's motion for summary judgment. In opposition to ARL's motion for summary judgment, the Andersons presented the deposition testimony of their expert witness, Dr. Linda Pifer. ARL argued, and the trial court agreed, that Dr. Pifer was not qualified to testify against ARL as to the applicable standard of care and its breach. We agree. To be qualified to testify as to the standard of care that ARL allegedly breached, Dr. Pifer had to come within the definition of a "similarly situated health care provider" under § 6-5-548(b), the subsection that applies to the facts of this *812 case, see Medlin v. Crosby, 583 So. 2d 1290, 1296 (Ala.1991). Section 6-5-548(b) defines a "similarly situated health care provider" as "one who meets all of the following qualifications": The Andersons allege that ARL failed to properly perform tuberculosis testing on Mr. Anderson's sputum specimen, by allowing it be contaminated with the specimen of another donor, so that it gave an inaccurate test result. Thus, the standard of care to be applied to this case is that of a "health care provider" practicing tuberculosis testing. See Medlin, 583 So. 2d at 1293. The ARL employee who performed the tuberculosis testing, Rodney Decker, is a certified medical technologist. Dr. Pifer received a Ph.D. degree in microbiology in 1972. Dr. Pifer testified that the field of microbiology encompasses the laboratory analysis of different types of bacteria and viruses, including the bacterium that causes tuberculosis. Her curriculum vitae and her deposition testimony indicate that she has done extensive research, has written several publications, and has had significant teaching and academic experience. Since 1990, she has worked as a tenured professor at the University of Tennessee at Memphis, in the Department of Clinical Laboratory Sciences, where her students include medicaltechnology students. Dr. Pifer is licensed by the State of Tennessee as a medicallaboratory professional. Dr. Pifer testified that her license is the equivalent to that held by a medical technologist in Alabama and that it is in the same field as that of ARL's employees Green and Decker. Based on this evidence, we find that Pifer meets the requirements of § 6-5-548(b)(1) and (2). Dr. Pifer does not, however, meet the requirement of (b)(3). Although Dr. Pifer has training and experience in the general field of microbiology, she does not have recent training or experience in the specific field of tuberculosis testing. In her deposition testimony, Dr. Pifer admits that she has never worked in a reference or clinical laboratory or a mycobacteriology department; that prior to the time of the testing that is the basis of this case, she never supervised, or participated in, the performance of tuberculosis testing and never did any of the kinds of tuberculosis testing that were performed by ARL on Anderson's sputum specimen; that she has no practical experience in the field of mycobacteria or tuberculosis testing; that she has no personal knowledge of quality-assurance programs at clinical or reference laboratories that conduct tuberculosis testing; that she is not familiar with the tuberculosis-testing guidelines recommended by the primary certifying agency for clinical laboratories; that she is not familiar with the Centers for Disease Control guidelines relating to mycobacteriology and tuberculosis testing; that she has not written any article relating to tuberculosis testing; and that she has no teaching experience in the area of tuberculosis testing. Finally, in her deposition testimony, Dr. Pifer admits that she does not practice in the same specialty as Decker or Green. Dr. Pifer testified in pertinent part: (Deposition of Dr. Pifer at 256.) Because Dr. Pifer's own testimony shows that she did not practice in the specialty of tuberculosis testing in the year preceding the testing of Anderson's sputum specimen, she does not qualify as a "similarly situated health care provider" and, thus, is not competent to give expert testimony concerning ARL's alleged breach of the applicable standard of care. See Loeb v. Cappelluzzo, 583 So. 2d 1323 (Ala.1991); Jordan v. Brantley, 589 So. 2d 680 (Ala. 1991); cf. Dowdy v. Lewis, 612 So. 2d 1149 (Ala.1992) (holding that the two expert witnesses proferred by the defendant nurse were competent to give expert testimony concerning the standard of nursing care involved in the case, which involved medical-surgical nursing, because both had extensive practical and teaching experience in medical-surgical nursing). The lack of such testimony results in a lack of proof essential to the Andersons' case. See Jordan, 589 So. 2d at 683. Because the Andersons were required to present expert testimony concerning ARL's alleged breach of the standard of care and because the Andersons presented no testimony of a similarly situated healthcare provider in response to ARL's properly supported motion for summary judgment, the trial court properly entered summary judgment for ARL. AFFIRMED. HOOPER, C.J., and HOUSTON, LYONS, and BROWN, JJ., concur. COOK, JOHNSTONE, and ENGLAND, JJ., dissent. MADDOX, J., recuses himself. [1] Anderson's wife and several members of his family later had themselves tested for tuberculosis. [2] We note that the Alabama Medical Liability Act of 1987 supplements the Alabama Medical Liability Act. See Ala.Code 1975, § 6-5-541. For purposes of this opinion, we refer to the two Acts collectively as the "AMLA." [3] The Andersons do not challenge on appeal the dismissal of their fraud claims.

August 18, 2000

be51a38e-9aa1-429e-b6bf-81d63ee625e4

Alabama Ins. Guar. Ass'n v. SOUTHERN ALLOY CORPORATION

782 So. 2d 203

1981942

Alabama

Alabama Supreme Court

782 So. 2d 203 (2000) ALABAMA INSURANCE GUARANTY ASSOCIATION v. SOUTHERN ALLOY CORPORATION. 1981942. Supreme Court of Alabama. August 11, 2000. Rehearing Denied October 27, 2000. Bennett L. Pugh, Joseph H. Driver, and W. Bradford Kittrell of Carr, Allison, Pugh, Howard, Oliver & Sisson, Birmingham, for appellant. Barry D. Vaughn and J. Bradley Proctor of Proctor & Vaughn, Sylacauga, for appellee. BROWN, Justice. On February 3, 1992, Charles R. Moats suffered an on-the-job injury to his back while employed by Southern Alloy Corporation ("Southern Alloy"). For the rest of 1992, Southern Alloy paid Moats's monthly salary of $4,010, and beginning in 1993 it paid Moats $4,130 per month. Southern Alloy continued to pay Moats's salary until November 1994, when the company terminated his employment on the ground that he had missed six consecutive months of work. At the time of Moats's injury, Southern Alloy was insured for workers' compensation claims by Employers Casualty *204 Company ("ECC").[1] ECC later became insolvent, and, pursuant to the Alabama Insurance Guaranty Association Act, §§ 27-42-1 to 20, Ala.Code 1975, the Alabama Insurance Guaranty Association ("AIGA") was required to pay certain unpaid claims on behalf of ECC. In December 1994, AIGA filed a declaratory-judgment action against Southern Alloy and Moats in the Jefferson Circuit Court, seeking a judgment declaring that AIGA was not responsible for workers' compensation payments to Moats. Specifically, AIGA argued that the statutory limitations period applicable to Moats's workers' compensation claim had run; thus, it argued, the claim was not "covered" under the Alabama Insurance Guaranty Association Act. The trial court found that Southern Alloy had paid Moats in recognition of a workers' compensation obligation, and it entered a judgment holding that "Mr. Moats'[s] claim [was] a covered claim and Alabama Insurance Guaranty Association [was] obligated to provide coverage for such claim." AIGA appealed that judgment to the Court of Civil Appeals. That court affirmed, without opinion, on March 7, 1997. Alabama Ins. Guaranty Ass'n v. Moats (No. 2951344), 705 So. 2d 889 (Ala.Civ.App.1997)(table). On July 25, 1997, this Court denied AIGA's petition for certiorari review. Ex parte Alabama Ins. Guaranty Ass'n (No. 1961216), 712 So. 2d 1126 (Ala.1997)(table). In August 1997, Southern Alloy filed a motion asking the trial court to order AIGA to pay it the workers' compensation benefits it had paid to Moats. The trial court denied the motion, concluding that it did not have jurisdiction to decide the matter. In May 1998, Southern Alloy filed a declaratory-judgment action against AIGA in the Talladega Circuit Court, seeking a judgment declaring that AIGA must reimburse Southern Alloy for "moneys paid, together with interest thereon, and all future moneys paid to Charles Moats as a result of his total and permanent disability." Moats intervened as a plaintiff. In March 1999, Moats and AIGA settled and agreed that AIGA would pay Moats a lump sum of $6,217.75, attorney fees of $30,172.25, and compensation at the rate of $327.25 per week. The parties also agreed to the following release: (C. 211.) AIGA and Southern Alloy filed motions for summary judgment. In July 1999, the trial court found: The trial court granted Southern Alloy's motion for summary judgment, denied AIGA's motion, and rendered a judgment in favor of Southern Alloy in the amount of $110,800 as reimbursement. AIGA appealed. The issues raised on appeal are: 1) whether the contract between ECC and Southern Alloy permitted reimbursement for payments Southern Alloy made to Moats; 2) whether Southern Alloy's claim for reimbursement from AIGA for the payments Southern Alloy made to Moats is barred on the basis that it should have been brought as a counterclaim in the initial declaratory-judgment action; and 3) whether the second declaratory-judgment action for reimbursement is barred by the doctrine of res judicata. Because we reverse and remand on the compulsory-counterclaim issue, we pretermit discussion of the remaining issues. Our review of a summary judgment is de novo. Hobson v. American Cast Iron Pipe Co., 690 So. 2d 341, 344 (Ala. 1997). Southern Alloy's claim for reimbursement from AIGA for payments it made to Moats should have been asserted as a counterclaim in the initial declaratory-judgment action. Rule 13(a), Ala.R.Civ.P., states: This Court has said: Brooks v. Peoples Nat'l Bank of Huntsville, 414 So. 2d 917, 920 (Ala.1982). In Brooks, we stated the test for compulsory counterclaims: Brooks, 414 So. 2d at 919. In the instant case, the first and second declaratory-judgment actions arose out of the same aggregate core of operative facts. The amount Southern Alloy paid Moats, the reason for the payments, the insurance policy with ECC, the Alabama Insurance Guaranty Association Act, and the Workers' Compensation Act served as a basis for both claims. Thus, the logical-relationship test was met, and Southern Alloy's claim for reimbursement was a compulsory counterclaim. "[F]ailure to assert a compulsory counterclaim bars the assertion of that claim in another action." Brooks, 414 So. 2d at 920; Ala.R.Civ.P. 13, Committee Comments. Therefore, the trial court improperly entered the summary judgment in favor of Southern Alloy. Accordingly, that judgment is reversed, and the case is remanded for an order or proceedings in the circuit court consistent with this opinion. REVERSED AND REMANDED. MADDOX, HOUSTON, SEE, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. HOOPER, C.J., and COOK, J., dissent. [1] In the record, this company is also sometimes referred to as Employers Insurance Company of Alabama.

August 11, 2000

840fb410-9815-493b-a9d5-69ca1c1dc330

Southern Energy Homes, Inc. v. Hennis

776 So. 2d 105

1982118

Alabama

Alabama Supreme Court

776 So. 2d 105 (2000) SOUTHERN ENERGY HOMES, INC. v. William D. HENNIS. 1982118. Supreme Court of Alabama. August 4, 2000. *106 John Martin Galese and Jeffrey L. Ingram of Galese & Ingram, P.C., Birmingham, for appellant. Joseph C. McCorquodale III and Jacqualyn S. Bradley of McCorquodale & McCorquodale, Jackson, for appellee. COOK, Justice. Southern Energy Homes, Inc. ("Southern Energy"), appeals from an order denying its motion to compel the arbitration of claims presented in an action commenced against it by William D. Hennis. We affirm. The dispositive issue in this case is whether Southern Energy and Hennis had an agreement to arbitrate disputes between them in connection with Hennis's purchase of one of Southern Energy's manufactured homes. On that issue, "[t]he party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration.... In order to prevail on an assertion of arbitrability, the moving party is required to produce some evidence which tends to establish its claim." Ryan's Family Steak Houses, Inc. v. Regelin, 735 So. 2d 454, 457 (Ala.1999) (emphasis added) (internal quotation marks omitted). Only after a motion has been made and properly supported does the burden shift to the party opposing arbitration "to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question." Id. (internal quotation marks omitted). Southern Energy has failed to present evidence of the existence of an agreement sufficient to shift the burden of production to Hennis. To illustrate the factual brevity of the case presented by Southern Energy, we set forth its "Statement of Facts" in toto, as follows: Brief of Appellant, at xiii (citations to the record omitted.) Actually, we note that Hennis sued not only Southern Energy, but also Jack Lee Mobile Homes ("Jack Lee"), the entity from which he had purchased the unit. His complaint sought compensation under theories of negligence, fraud, and breach of warrantiesboth express and implied. *107 In count seven of the complaint, Hennis alleged that "[w]hen [he] purchased the mobile home, or shortly thereafter, [Southern Energy] provided [him] a HOME OWNER'S MANUAL," which included "a paragraph [purporting] to be an agreement that any dispute or claim [would] be submitted to binding arbitration." (Capitalization in original.) He further alleged that the arbitration provision was "unilateral in nature, ... is not signed by the Plaintiff or any of the Defendants, and is thus, unenforceable by any of the parties." He sought a judgment declaring the arbitration provision provided in the Homeowner's Manual to be "null and void and not enforceable." Only Southern Energy moved to compel arbitration. After the trial court denied the motion, Southern Energy appealed. In support of its brief allegation that the parties have an agreement containing an "arbitration provision [that covers] the disputes at issue," Southern Energy presented only two items of "evidence."[1] The first item consists of what purports to be pages 4 and 5 of a "Homeowner's Manual." That item was presented to the trial court in connection with Southern Energy's motion to compel arbitration, as "Exhibit `A.'" The second item was also presented in connection with the motion to compel arbitration, as "Exhibit `B.'" Neither itemby itself or in conjunction with the otherconstitutes evidence of an agreement to arbitrate. Exhibit A provides in part: But Exhibit A is not signed by anyone. Not only so, but there is nothingother than Southern Energy's assertionto show whether pages 4 and 5 are, in fact, pages from a homeowner's manual. A fortiori, there is no evidence that they are excerpts from the Homeowner's Manual that was supplied to Hennis, or from one that was identical in form. To be sure, Exhibit B purports to address the Homeowner's Manual. Exhibit B purports to be the affidavit of "Don McNutt," who, the document asserts, is "a manager for Southern [Energy]." The "affiant" states that "Southern [Energy] extended a written, limited warranty to the Plaintiffs [sic] in connection with their [sic] purchase of the subject home from Jack Lee Mobile Homes. The warranty was contained in a Homeowner's Manual which accompanied the house." However, the affidavit obviously does not reference Exhibit A specifically or otherwise identify it as the "Homeowner's Manual which accompanied the house" delivered to Hennis. Moreover, the "affidavit," itself, bears only a signature purporting to be that of "Don McNutt." In other words, as Hennis correctly points out, it is unsworn. Specifically, it states: Despite the boilerplate recitation of the first paragraph, the document is not witnessed by a notary public. But even had the evidence clearly shown that Hennis received a copy of the arbitration provision that is contained in the record, Southern Energy yet failed, as a matter of law, to show the existence of a contract. "The requisite elements of [a contract] include: an offer and an acceptance, consideration, and mutual assent to terms essential to the formation of a contract." Ex parte Grant, 711 So. 2d 464, 465 (Ala.1997) (emphasis added) (internal quotation marks omitted). Assent must be manifested by something. Ordinarily, it is manifested by a signature. See Commercial Credit Corp. v. Leggett, 744 So. 2d 890, 895-96 (Ala.1999); Premiere Chevrolet, Inc. v. Headrick, 748 So. 2d 891, 893 (Ala.1999); Crown Pontiac, Inc. v. McCarrell, 695 So. 2d 615, 618 (Ala.1997). Assent may be manifested by ratification. See Southern Energy Homes, Inc. v. Harcus, 754 So. 2d 622 (Ala.1999). That case, like this one, involved an action against Southern Energy by the purchasers of a mobile home manufactured by Southern Energy. In that case, however, Southern Energy offered some evidence indicating that the purchasers had accepted the benefits of its warranty. Specifically, it contended that it had made service calls to the mobile home at the request of the purchasers in order to effect repairs covered by the warranty. 754 So. 2d at 626. This Court remanded the cause for a finding as to whether the buyers had ("agreed, by ratification [through accepting the benefits of the warranty] or otherwise, to submit their claims against Southern Energy to arbitration"). Id. at 626. However, the manufacturer's unilateral enclosure of an arbitration provision in a *109 homeowner's manual iswithout more insufficient as a matter of law to show that the buyer assented to all the contents therein. Without more, the provisions contained in such a homeowner's manual are immaterial, "except in the utterly collateral sense that if the plaintiffs had never purchased their mobile homes," Ex parte Isbell, 708 So. 2d 571, 578 (Ala.1997) (emphasis and internal quotation marks omitted), they would not have received the homeowner's manual. In this case, it is not contendedmuch less, demonstratedthat Hennis invoked the warranty or, in any manner, accepted the benefits thereof. On the contrary, Southern Energy, in merely stating that "[a]fter purchasing the home, Plaintiff became dissatisfied ... and filed suit," Brief of Appellant, at xiii (emphasis added), apparently concedes that Hennis did not attempt to invoke the warranty. Other than the breach-of-express-warranty claim itself, the record is devoid of evidence indicating that Hennis assented to the terms in the Homeowner's Manual, including the warranty and the arbitration provisions. We hasten to point out that, under the recent precedent of this Court, Hennis may not pursue his breach-of-express-warranty claim against Southern Energy. This is so because he cannot rely on the express written warranty and, at the same time, disavow the arbitration provision contained therein. Ex parte Warren, 718 So. 2d 45 (Ala.1998). Cf. Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131 (Ala. 2000) (overruling Southern Energy Homes, Inc. v. Lee, 732 So. 2d 994 (Ala. 1999), and holding that the Magnuson-Moss WarrantyFederal Trade Commission Improvement Act, 15 U.S.C. § 2301 et seq., does not "invalidate[] arbitration provisions in a written warranty issued by a manufacturer of consumer goods"); Southern Energy Homes, Inc. v. Kennedy, 774 So. 2d 540 (Ala.2000) (mobile-home buyers could not pursue a breach-of-express-warranty claim based on an express warranty they said they never received). For the foregoing reasons, the order of the trial court is affirmed. AFFIRMED. HOUSTON, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. HOOPER, C.J., and MADDOX, SEE, and LYONS, JJ., concur in the result, but dissent from the rationale. SEE, Justice (concurring in the result, but dissenting from the rationale). I concur in the result to affirm the trial court's order denying Southern Energy's motion to stay court proceedings and compel William D. Hennis to arbitrate his claims against Southern Energy. However, I dissent from the rationale of the main opinion. Southern Energy produced no evidence indicating that the arbitration clause contained in its express limited warranty related to a transaction involving interstate commerce.[2] Therefore, Southern Energy failed to establish that the Federal Arbitration Act applies. See 9 U.S.C. § 2. Accordingly, the trial court correctly denied Southern Energy's motion to compel arbitration, because Alabama law provides that arbitration agreements are not specifically enforceable. See Ala.Code 1975, § 8-1-41. Therefore, I concur in the result reached by the main opinion. I disagree, however, with the conclusion in the main opinion that Southern Energy failed to prove that Hennis had assented to the arbitration clause in the express limited warranty. Hennis cannot sue to enforce the terms of the warranty, yet contend that he has not assented to the terms of the warranty. This case is distinguishable from Southern Energy Homes, Inc. v. *110 Kennedy, 774 So. 2d 540 (Ala.2000), in which this Court held that, although the plaintiffs' complaint included a claim alleging breach of an express warranty, the trial court was entitled to find that the plaintiffs had not assented to the terms set forth in a specific express-warranty form, including an arbitration clause, offered by the defendant. In that case, the evidence before the trial court was in conflict as to whether the plaintiffs had received the warranty form containing the arbitration provision. Unlike the plaintiffs in Kennedy, Hennis does not dispute that he received the warranty that contained the arbitration provision. His complaint specifically mentions the arbitration provision. Under the circumstances of this case, where it is clear that Hennis is suing to enforce the written warranty that contains the arbitration provision, this Court should not hold or state as dictum that Hennis did not assent to the terms of the warranty. Therefore, I dissent from the rationale of the main opinion. Finally, because I cannot conclude that Hennis has not assented to the terms of the express limited warranty that he has sued to enforce, I dissent from statement in the main opinion that "Hennis may not pursue his breach-of-express-warranty claim." 776 So. 2d at 109. On the current state of the record, which is devoid of evidence indicating that the arbitration clause related to a transaction involving interstate commerce, it is possible that Hennis assented to the arbitration clause and yet that that clause is not specifically enforceable. Thus, Hennis's claim alleging breach of Southern Energy's express warranty is not necessarily inconsistent with his opposition to Southern Energy's motion to compel him to arbitrate his claims. [1] Southern Energy does not argue that it is entitled to arbitrate on the basis of the contract between Jack Lee and Hennis, but relies, insteadas it did in the trial courtsolely on the clause included in its warranty. An "intertwining" argument would be unavailing at any rate, due to the fact that Jack Lee did not move to compel arbitration. "In other words, `intertwining' requires at least two threads to weave togetherone cannot intertwine a single thread." Southern Energy Homes, Inc. v. Kennedy, 774 So. 2d 540 (Ala. 2000). [2] Southern Energy relies solely on an unsworn statement of one of its managers in its attempt to establish that the transaction with Hennis involved interstate commerce; however, that unsworn statement is not evidence.

August 4, 2000

0ba1e546-99e3-41f9-905d-2ddb7eb77270

Biles v. Sullivan

793 So. 2d 708

1980771, 1980979, 1980980

Alabama

Alabama Supreme Court

793 So. 2d 708 (2000) Bayless Edward BILES, Jr., and Wilkins, Bankester, Biles & Wynne, P.A. v. Charles SULLIVAN et al. Charles Sullivan, individually and d/b/a Sullivan Machine & Tool Company; and Josephine Sullivan v. Ray Morgan Thompson and Armbrecht, Jackson, DeMouy, Crowe, Holmes, & Reeves. Charles Sullivan, individually and d/b/a Sullivan Machine & Tool Company; and Josephine Sullivan v. Mazak Corporation. 1980771, 1980979 and 1980980. Supreme Court of Alabama. August 11, 2000. Rehearing Denied March 30, 2001. *709 D. Scott Wright and Thomas H. Nolan, Jr., of Brown, Hudgens, P.C., Mobile, for appellants Bayless Edward Biles, Jr., and Wilkins, Bankester, Biles & Wynne, P.A. Joseph J. Boswell, Mobile; and Mona A. Vivar of Atchison, Crosby, Saad & Beebe, Mobile, for appellants Charles Sullivan, individually and d/b/a Sullivan Machine & Tool Company; and Josephine Sullivan. Wesley Pipes, Michael C. Niemeyer, and Ryan T. Northrup of Lyons, Pipes & Cook, P.C., Mobile, for appellee Mazak Corporation. John N. Leach, Jr., Joseph D. Steadman, and John T. Dukes of Helmsing, Sims & Leach, P.C., Mobile, for appellees Ray M. Thompson and Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves. Donald R. Rhea of Rhea, Boyd & Rhea, Gadsden, for amicus curiae Alabama Trial Lawyers Association. J. Anthony McLain, general counsel; and Robert E. Lusk, Jr., asst. general counsel, Alabama State Bar, for amicus curiae Alabama State Bar. Rhonda Pitts Chambers of Rives & Peterson, Birmingham, for amicus curiae Alabama Defense Lawyers Association. ENGLAND, Justice. On February 28, 1991, Charles Sullivan and Josephine Sullivan, d/b/a Sullivan Machine & Tool Company sued Mazak Corporation, *710 in the Baldwin Circuit Court, alleging fraudulent misrepresentation, fraudulent suppression, deceit, breach of contract, breach of warranty, and conspiracy to violate §§ 13A-9-11 and 13A-9-12, Ala.Code 1975, after Mazak sold a machine to Sullivan Machine that did not perform up to its alleged expectations. Mazak filed a counterclaim, alleging breach of a lease agreement and unjust enrichment. The jury was struck on March 15, 1993, and the trial commenced on March 17, 1993. Josephine Sullivan was dismissed as a plaintiff in that action before the trial commenced. On March 24, 1993, the trial court entered a judgment in favor of Mazak, based on the jury's verdict. Subsequently, Josephine Sullivan discovered that an attorney hired by Mazak's counsel as a jury consultant was the brother-in-law of the jury foreman. Charles Sullivan filed a motion for relief from judgment, pursuant to Rule 60(b)(6), Ala. R. Civ. P., after learning that the brother-in-law of attorney Bayless Edward Biles, Jr. had served as the jury foreman. When the jury was being struck, the prospective jurors were asked if they knew any of the lawyers at the trial. Prospective juror Pete Jones responded that he knew Biles. The trial judge then asked Biles whether he was "connected with this case," and Biles answered that he was not. Ray Morgan Thompson, a Mobile attorney hired by Mazak in the Baldwin County action and a partner in the law firm of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, had hired Biles as a jury consultant in regard to the Baldwin County action. Biles is a partner in the law firm of Wilkins, Bankester, Biles & Wynne, P.A. On May 9, 1994, Judge Charles C. Partin, of the Baldwin Circuit Court, entered an order granting Charles Sullivan a new trial, but concluded that Biles had not engaged in any improper conduct. On March 15, 1995, before the second trial of the Baldwin County action, Charles Sullivan and his wife Josephine Sullivan[1] filed a complaint in the Mobile Circuit Court against Bayless Edward Biles, Jr.; Ray Morgan Thompson; Wilkins, Bankester, Biles & Wynne; Armbrecht, Jackson, Demouy, Crowe, Holmes & Reeves; and Mazak, alleging fraud, misrepresentation, and suppression. Charles Sullivan further alleged that in the Baldwin County action he had been deprived of a jury selected in accordance with the laws and rules of procedure of the State of Alabama.[2] The defendants filed motions for summary judgment. On May 10, 1996, Judge Edward B. McDermott placed the Mobile County action on his administrative docket, i.e., delayed it, pending the retrial of the Baldwin County action. On September 14, 1998, after a second trial in the Baldwin County action, the jury awarded Mazak damages of $250,234.12 based on its unjust-enrichment counterclaim. On February 1, 1999, after hearing oral arguments, Judge McDermott entered a judgment in the Mobile County action in favor of Mazak, Thompson, and the Armbrecht law firm. He entered an order denying Biles and Wilkins-Bankester's motion for summary judgment, holding that Biles had *711 had a duty to the court and to all the litigants to speak the truth when he responded to Judge Partin's question regarding his involvement in the Baldwin County action. Judge McDermott further held that the question whether Biles's response was truthful or fraudulent was a question of fact for a jury. He concluded that Biles had acted as an independent contractor, and, thus, that neither Thompson nor the Armbrecht firm was liable to Sullivan. Sullivan appeals the final order of Judge McDermott entering a summary judgment in favor of Thompson and the Armbrecht law firm. Biles and Wilkins-Bankester (by permission of this Court, see Rule 5, Ala. R.App. P.) appeal Judge McDermott's order denying their motions for summary judgment. We affirm in part, reverse in part, and remand. Ray Thompson, counsel for Mazak, hired attorney Bayless Biles to serve as a jury consultant in the action Sullivan had filed against Mazak in the Baldwin Circuit Court. Biles testified that he was hired to help Thompson pick a jury in that Baldwin County action. Biles did not assist in any other aspect of the case, nor did he sit with representatives of the defendant Mazak or its attorneys. Biles was present when the judge in the Baldwin County action conducted voir dire examination of prospective jurors. Biles met with Mazak's counsel, Thompson, outside the presence of the jury, to discuss which jurors should be struck. The following exchange occurred when Sullivan's counsel questioned prospective jurors: The prospective juror was Pete Jones, Biles's brother-in-law. Sullivan later filed in the Baldwin Circuit Court a motion, pursuant to Rule 60(b)(6), for relief from the judgment entered based on the jury's verdict in favor of Mazak. Sullivan alleged in his motion that the defendants had concealed from the Court and from Sullivan's attorneys the true relationship between Biles and the prospective juror, Pete Jones. He further alleged that the defendants' conduct had deprived him of a fair and impartial trial. He requested the following relief in his Rule 60(b)(6) motion: After he had filed the Rule 60(b)(6) motion for relief from judgment, Sullivan filed a complaint in the Mobile Circuit Court, in which he alleged the defendants had, in the Baldwin County action, misrepresented the fact that the jury foreman in that case was Biles's brother-in-law. Sullivan alleged that the defendants had committed fraud, had misrepresented material facts, had omitted material facts, and had suppressed material facts, and that as a result he had suffered emotional distress and anguish, economic injury, and damage to his business and personal reputation. He further alleged that he had been deprived of a jury selected in accordance with the laws and rules of procedure of the State of Alabama, and he sought punitive damages. A summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala. R. Civ. P. The moving party has the burden of showing that no material fact is in dispute. See Lipham v. General Motors Corp., 665 So. 2d 190 (Ala.1995). If the moving party makes that showing, the burden then shifts to the nonmovant to present "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). This Court's "review of a summary judgment is de novo," and in reviewing a summary judgment "[t]his Court must ... view the evidence in a light most favorable to the nonmovant." Lott v. Tarver, 741 So. 2d 394, 397 (Ala.1999). Biles and Wilkins-Bankester argue that the doctrine of collateral estoppel precludes Sullivan from relitigating in the Mobile County action the issue whether in the Baldwin County action they misrepresented or suppressed the fact that the jury foreman was Biles's brother-in-law. For the doctrine of collateral estoppel to apply, the following elements are required: Smith v. Union Bank & Trust Co., 653 So. 2d 933, 934 (Ala.1995). "`Where these elements are present, the parties are barred from relitigating issues actually litigated in a prior [action].'" Smith, 653 So. 2d at 934 (quoting Lott v. Toomey, 477 So. 2d 316, 319 (Ala.1985)). Both in his motion for relief from judgment in the Baldwin County action and in his complaint in the Mobile County action, Sullivan alleged that he had been deprived of a fair jury trial because, he said, the defendants had concealed Biles's relationship with jury foreman Pete Jones. Judge Partin held a hearing to determine whether Sullivan was entitled to a new trial, to determine whether any of the defendants had engaged in improper conduct, and to determine what relief, if any, Sullivan was entitled to. He concluded that, although Biles had not acted improperly, Sullivan was entitled to a new trial. It was within the court's discretion not only to grant Sullivan a new trial, but also to sanction the defendants for any improper conduct. A determination whether the defendants concealed or misrepresented Biles's relationship *713 with Jones was necessary to the Baldwin Circuit court's ruling on the motion for relief from judgment. That court had to resolve this issue, because it was the very basis of Sullivan's request for relief from the judgment. Moreover, Sullivan not only sought a new jury trial, but also "such other and different relief as to which he may be entitled." The parties involved in the hearing on Sullivan's request for relief in the Baldwin County action are the same parties that Sullivan named in the complaint in the Mobile County action. All of the requirements for collateral estoppel are met. Therefore, Sullivan is precluded from relitigating in the Mobile County action the issue whether, in the Baldwin County action, the defendants acted improperly with regard to disclosing Biles's relationship with Jones. The summary judgment entered for Mazak, Thompson, and the Armbrecht firm is affirmed. The order denying the motions for summary judgment filed by Biles and Wilkins-Bankester is reversed. We remand this case for an order consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HOOPER, C.J., and MADDOX and BROWN, JJ., concur. HOUSTON, J., concurs specially. JOHNSTONE, J., concurs in part and concurs in the result in part. SEE, J., concurs in the result. LYONS, J., recuses himself. HOUSTON, Justice (concurring specially). On February 5, 1988, this Court wrote in a case of first impression in this State: Terry Cove North, Inc. v. Marr & Friedlander, P.C., 521 So. 2d 22, 23-24 (Ala. 1988). This holding was codified, as to all acts and omissions occurring after April 12, 1988, in Alabama Code 1975, § 6-5-578(b): The Alabama Rules of Professional Conduct, effective January 1, 1991, are consistent with the former judicial and legislative pronouncements: Ala. R. Prof. Conduct, "Scope" (paragraph 6). Therefore, to the extent that Charles Sullivan, or the Sullivans, base their claim on some alleged independent, private cause of action against the defendant attorneys for an alleged violation of the Alabama Rules of Professional Conduct, the court properly entered the summary judgment, for no such cause of action exists. JOHNSTONE, Justice (concurring in part and concurring in the result in part). I concur to affirm the summary judgment in favor of the Mazak Corporation, Thompson, and the Armbrecht firm. I concur in the result to reverse the denial of the motion for summary judgment filed by Biles and Wilkins-Bankester, a ruling we are reviewing on a permissive interlocutory appeal pursuant to Rule 5(a), Ala. R.App. P. I question whether the elements of collateral estoppel are present as a defense for Biles and Wilkins-Bankester. While the order granting a new trial in the Baldwin County case was appealable, I question whether it constitutes a "prior judgment" sufficient to estop Sullivan in his Mobile County action. Moreover, neither Biles nor Wilkins-Bankester was a party to the Baldwin County action. Thus, no judgment in that action could collaterally estop Sullivan from suing them in Mobile County. Rather, summary judgment in favor of Biles and Wilkins-Bankester is appropriate for the reasons stated in Justice Houston's special writing, which I join. [1] Josephine Sullivan had been dismissed as a party in the Baldwin County action before that case was tried. Consequently, she does not have standing to appeal based on any alleged misconduct that may have occurred in that action. See Sho-Me Motor Lodges, Inc. v. Jehle-Slauson Constr. Co., 466 So. 2d 83 (Ala. 1985). [2] Sullivan also filed a claim for "breach of the Rules of Professional Responsibility" in the Mobile County action. However, this claim was dismissed, based on Sullivan's stipulation.

August 11, 2000

991a7201-3300-4e59-a155-73e805d5eb2a

Hall v. Chi

782 So. 2d 218

1990253

Alabama

Alabama Supreme Court

782 So. 2d 218 (2000) Marian H. HALL, as personal representative of the estate of James Edward Hall, deceased v. Dr. Teipie-Ching CHI et al. 1990253. Supreme Court of Alabama. September 8, 2000. Rehearing Denied October 27, 2000. Robert H. Ford of The Ford Law Firm, Birmingham, for appellant. Walter W. Bates and L. Jackson Young, Jr., of Starnes & Atchison, L.L.P., Birmingham, for appellees. PER CURIAM. Marian Hall, as personal representative of the estate of her husband James Edward *219 Hall, appeals from a judgment on the pleadings entered in favor of the defendants in a wrongful-death action. We reverse and remand. On October 17, 1996, James Hall was anesthetized and underwent hip-replacement surgery. This surgery resulted in his being paralyzed from the waist down. He died several months later, on July 12, 1997. At that time, the statutory limitations period of two years for medical malpractice, § 6-5-482, Ala.Code 1975, had not run. On July 12, 1999, within two years of James Hall's death, Marian Hall, in her capacity as personal representative of her husband's estate, sued St. Vincent's Hospital, Dr. Teipie Ching Chi, Dr. Sandra Sipe, Birmingham Anesthesiology Associates, and fictitiously named defendants. She alleged that actions or omissions by these defendants on October 17, 1996, had wrongfully caused her husband's death. Her complaint alleged that the defendants had She alleged that these acts and omissions constituted negligence and fell below the standard of care required of physicians and hospitals in Jefferson County. The defendants moved for a judgment on the pleadings. The trial court granted that motion, stating that in Curtis v. Quality Floors, Inc., 653 So. 2d 963 (Ala.1995), this Court had held that a decedent's representative could not amend a complaint in a personal-injury action more than two years after the date of the wrongful act so as to add a new party and to add a claim alleging wrongful death. The trial court applied Curtis to the facts of this case, stating that any claims against the defendants should have been filed on or before October 17, 1998, i.e., within two years after the defendants administered anesthesia to and performed surgery on James Hall. The court entered a judgment on the pleadings. Marian Hall appealed. In Curtis, Clara Curtis was injured when she slipped and fell in a Food World supermarket on November 13, 1989. Within the two years allowed by the statute of limitations, she and her husband Clarence filed a slip-and-fall action against Bruno's, Inc., doing business as Food World. Clara Curtis died on October 21, 1992, while the action against Bruno's was pending. At that time, Quality Floors, Inc., had not been named as a defendant, and the Curtises had not sued any fictitiously named defendants. On November 17, 1993, Clarence Curtis amended the complaint to add Quality Floors as a defendant and to add a wrongful-death claim, seeking damages for Clara's death. Quality Floors moved for a summary judgment, arguing that "an action based on wrongful death is barred by the statute of limitations if, at the time of the death, an action based on personal injuries that are alleged to have caused the death is time-barred." 653 So. 2d at 963. Quality Floors argued that the statutory limitations period for the personal-injury claim had expired on *220 November 13, 1991, and, therefore, that the personal representative's wrongful-death claim against Quality Floors was also barred. The trial court entered a summary judgment in favor of Quality Floors, and this Court affirmed that judgment. This Court stated, "The plain language of the wrongful death statute states that the personal representative may commence a wrongful death action, `provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.'" 653 So. 2d at 964. See § 6-5-410, Ala.Code 1975. Speaking to the effect of this proviso, Justice Shores stated: Curtis, 653 So. 2d at 964 (emphasis added). Marian Hall relies on McMickens v. Waldrop, 406 So. 2d 867 (Ala.1981). In McMickens, two physicians treated LaVonne McMickens from February 10, 1975, to May 24, 1975. On March 24, 1977, LaVonne McMickens sued the two physicians, alleging medical malpractice. On October 30, 1977, LaVonne McMickens died. On August 24, 1978, on the consent of David McMickens, as administrator of LaVonne McMickens's estate, the malpractice action was dismissed. See 406 So. 2d at 868 and n. 1. On October 29, 1979, after the civil action had been dismissed, David McMickens, as administrator, filed a wrongful-death action against the two physicians. The defendants moved for a summary judgment, and the trial court granted their motion. David McMickens appealed. This Court held that, because LaVonne McMickens had filed a personal-injury action before her death, her administrator could file a wrongful-death action within two years of her death, even though the period allowed by the medical-malpractice statute of limitations, which had run from the date of her treatment, had expired; therefore, the wrongful-death action was held timely because it was filed within two years of the death. The defendants would distinguish McMickens from this present case by pointing out that when McMickens was decided, caselaw condemning amendments regarding subsequent events required that a personal-injury action be dismissed if the plaintiff died while her case was pending, and thus the administrator's recourse was to file a new action. The rule in McMickens thus permitted the personal representative to file a new action alleging wrongful death, an action to be governed by the wrongful-death statute of limitations, with the time for filing computed from the date of death. The defendants point out that since McMickens was decided, this Court's caselaw has eliminated the requirement of dismissal and refiling. See King v. National Spa & Pool Inst., 607 So. 2d 1241 (Ala.1992). Be that as it may, McMickens does not preclude Marian Hall's action alleging wrongful death. McMickens stands for the proposition that it is the two-year limitations period for wrongful-death actions, see § 6-5-410, Ala.Code 1975, and not the medical-malpractice limitations period, that applies to wrongful-death cases alleging medical malpractice. Under McMickens, the medicalmalpractice limitations period determines *221 whether a decedent's medical-malpractice cause of action survived his death. If the decedent had a viable medical-malpractice claim when he died, then the decedent's personal representative could, within two years after the decedent's death, bring a wrongful-death action alleging medical malpractice.[1] The critical distinction between the present case and Curtis v. Quality Floors, Inc., thus becomes clear. At the time of the death of the decedent in Curtis, the statutory limitations period had run against Quality Floors. As previously noted, this Court stated the rule in Curtis as follows: "Our cases hold that if a decedent's cause of action is time-barred at his or her death, then the decedent's personal representative cannot bring a wrongful death action." Curtis, 653 So. 2d at 964 (emphasis added). In the present case, James Hall died at a time well within the statutory period in which he could have filed an action alleging medical malpractice. Under the teaching of Curtis and McMickens, Marian Hall, in her capacity as personal representative of James Hall's estate, had two years from the date of his death in which to commence her wrongful-death action. Justice Houston, in his dissent, would affirm the circuit court's judgment, based on his reading of the term "all actions," as it is used in the limitations provision of the Alabama Medical Liability Act ("AMLA"), § 6-5-482(a), Ala.Code 1975, as including statutory wrongful-death actions as well as other actions known at common law.[2] Section 6-5-482(a) reads: This Court considered this precise point in McMickens. Construing the legislative intent of the AMLA, this Court expressly rejected the proposition that the limitations period of the AMLA applied to wrongful-death actions based on medical malpractice. McMickens held that the passage of the AMLA did not affect the two-year limitations period of the wrongful-death statute, the court concluding that in adopting the AMLA the Legislature had not intended to affect "the right of a personal representative to bring an action for wrongful death within two years of the death of his `testator or intestate.'" 406 So. 2d at 869. This Court emphasized in McMickens that if the Legislature wanted to alter the two-year limitations period of the wrongful-death statute, it could do so by subsequent legislation. 406 So. 2d at 869. Presumably, the Legislature adopts a particular judicial construction if, when it reenacts *222 or amends a statute, it keeps unchanged in the reenacted or amended statute the language that has been judicially interpreted. See Galloway Coal Co. v. Stanford, 215 Ala. 79, 109 So. 377 (1926); Russell v. Thornton, 216 Ala. 60, 112 So. 347 (1927); Usher v. Department of Indus. Relations, 261 Ala. 509, 75 So. 2d 165 (1954). In 1987, the Legislature revisited the AMLA. See § 6-5-540 et seq., Ala.Code 1975. While not strictly "reenacting" that statute, the Legislature expressed an intent to supplement the 1975 legislation with the provisions of the 1987 Act and called for a construction of the new Act that would be consistent with the 1975 Act. See § 6-5-547, Ala.Code 1975. The 1987 Act did not alter the AMLA in such a way as to overrule the construction this Court in McMickens had given the term "all actions," as that term is used in § 6-5-482(a) a construction that excludes the application of the AMLA's statutory limitations period to wrongful-death actions. To hold that the two-year provision of the AMLA applies to wrongful-death cases, we would have to say that, in regard to the proviso of the wrongful-death act governing timeliness of actions, § 6-5-410 was impliedly repealed by § 6-5-482. This Court observed in City of Birmingham v. Southern Express Co., 164 Ala. 529, 538, 51 So. 159, 162 (1909): The statutes were reconciled and given separate fields of operation in McMickens. If a decedent has a viable medical-malpractice claim at the time of his death, his personal representative has two years from the date of the death to file a wrongful-death claim based on the alleged malpractice. Because Marion Hall, in her capacity as personal representative of her husband's estate, commenced her wrongful-death action within two years from the date of her husband's death, the trial court erred in entering a judgment on the pleadings. The judgment is reversed, and the cause is remanded for further proceedings. REVERSED AND REMANDED. MADDOX, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. HOOPER, C.J., and HOUSTON, J., dissent. HOUSTON, Justice (dissenting). Ala.Code 1975, § 6-5-482, provides in pertinent part: (Emphasis added.) In the case at issue, the wrongful act, omission, or failure occurred on October 17, 1996; therefore, James Edward Hall had the right to bring an action against his physicians, surgeons, or medical institutions at any time from October 17, 1996, up through October 17, 1998, if he had lived to that date. However, Hall died on July 12, 1997. His death created a new cause of actionwrongful death. The limitations *223 period of § 6-5-482 still runs from October 17, 1996, the date of the act, or omission, or failure, even though Hall died during the two-year period measured from that date. The action was not filed on or before October 17, 1998; therefore, it is barred by § 6-5-482.[3] To hold otherwise would be to judicially rewrite the statute, which the separation-of-powers provisions of the Constitution of Alabama of 1901 prohibit us from doing; therefore, I dissent. HOOPER, C.J., concurs. [1] See Justice Jones's special concurrence in McMickens, which illustrates: "Suppose the parents of a minor who died at age two allegedly [as the result of] medical malpractice, brought suit just prior to the child's eighth birthday. Clearly, the statute of limitations defense would prevail because the tolling provision of the Medical Liability Act (`until his eighth birthday') could not be invoked to lengthen the Wrongful Death Act's two-year period of limitations. On the other hand, if the child died just prior to his eighth birthday, allegedly the result of a medical malpractice injury at the age of two, the Wrongful Death action could be commenced within two years from the date of the child's death. The discovery provisions of the Medical Liability Act are subject to like application." 406 So. 2d at 870 (emphasis added). [2] The defendants did not advance this argument as a basis for affirming the judgment of the trial court. [3] Because when Hall died there remained 15 months of the two years allowed by the statute, no question of the application of the six-month proviso would arise.

September 8, 2000

bd9b4a42-57e4-4edf-b219-6851dd041c87

Ex Parte Lyon Financial Services, Inc.

775 So. 2d 181

1990658

Alabama

Alabama Supreme Court

775 So. 2d 181 (2000) Ex parte LYON FINANCIAL SERVICES, INC. (Re Lyon Financial Services, Inc. v. Buddy's Marineland, Inc.) 1990658. Supreme Court of Alabama. July 21, 2000. Donald L. Christian, Jr., Huntsville, for petitioner. Jennifer M. Busby and Jamie L. Moore of Burr & Forman, L.L.P., Birmingham; *182 and Terry W. Gloor of Johnston & Conwell, L.L.C., Birmingham, for respondent. SEE, Justice. Lyon Financial Services, Inc. ("Lyon"), petitions for a writ of mandamus directing the Jefferson Circuit Court (Bessemer Division) to vacate its order staying execution of a domesticated judgment entered by a Minnesota district court. We grant the petition and issue the writ. Lyon is a Minnesota corporation engaged in the business of providing financing for the purchase or lease of business equipment. Lyon entered into a financing agreement with Buddy's Marineland, Inc. ("Buddy's"), an Alabama corporation, whereby Lyon provided financing to Buddy's for it to purchase computer equipment from Integrated Dealer Systems, Inc. ("IDS"). Apparently, Buddy's experienced problems with the computer equipment it purchased from IDS and stopped making payments to Lyon. Lyon then sued Buddy's in the District Court for Lyon County, Minnesota. As part of that action, Buddy's filed a third-party complaint against IDS. Ultimately, the Minnesota district court entered a summary judgment in favor of Lyon, awarding it damages in the amount of $113,992.49, including interest, attorney fees, and court costs, and dismissed the third-party complaint against IDS. Within a month of obtaining the judgment against Buddy's, Lyon filed an action in the Jefferson Circuit Court (Bessemer Division) to domesticate the Minnesota judgment, pursuant to Alabama's Uniform Enforcement of Foreign Judgments Act, Ala.Code 1975, § 6-9-230 to -237. In accordance with the Act, Lyon filed an authenticated copy of the Minnesota judgment and an affidavit by its attorney. See Ala.Code 1975, §§ 6-9-232 and -233. Buddy's filed no objection to the domestication of the Minnesota judgment. After Lyon had filed the Minnesota judgment, it propounded postjudgment discovery requests to Buddy's and noticed the deposition of Buddy's corporate representative. See Rule 69(g), Ala.R.Civ.P. Lyon subsequently filed a motion to compel Buddy's to respond to its discovery requests. The trial court granted Lyon's motion to compel. After Buddy's failed to comply with the trial court's order, Lyon filed a motion for sanctions against Buddy's, pursuant to Rule 37(b), Ala.R.Civ.P. Buddy's thereafter filed a motion for relief from the Minnesota judgment. Although Buddy's filed its motion pursuant to Rule 60(b), Ala.R.Civ.P., it did not challenge the validity or the domestication of the Minnesota judgment. Rather, Buddy's asserted that it intended to file an action against IDS seeking damages "in an amount no less than that which has been [awarded] against it by the Minnesota Court," and it requested a stay of enforcement of the Minnesota judgment until "such time as a verdict is rendered in the case between [Buddy's] and IDS." Buddy's argued that "[i]n fairness and equity" it should have "its `day in court' in order to litigate its dispute with IDS to recover no less than the [amount of the judgment] entered by the Minnesota Court" and that "[i]t would be unjust to require [it] to pay the Minnesota judgment until such time as the issues between it and IDS can be properly litigated." The trial court entered an order stating that the "motion [by Buddy's] for relief from judgment is treated as a stay of that judgment until such time as this Court can set this matter down for hearing." On December 7, 1999, the trial court held a hearing on the motion, and on that same day, it entered an order staying execution of the Minnesota judgment "pending [the] litigation being completed between IDS and [Buddy's]." Lyon then filed this mandamus petition. A writ of mandamus is an extraordinary remedy; one seeking it must *183 show: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court. See Ex parte Conference America, Inc., 713 So. 2d 953, 955 (Ala.1998) (citing Ex parte Edgar, 543 So. 2d 682, 684 (Ala. 1989)). "[M]andamus is the proper remedy to vacate an order the trial court had no power to enter." Ex parte Dowling, 477 So. 2d 400, 402 (Ala.1985). Initially, we address the nature of the trial court's order because the nature of that order determines our standard of review. Buddy's argues that the trial court's ruling on its motion for relief from the Minnesota judgment was a ruling on a Rule 60(b)(6), Ala.R.Civ.P., motion, and, thus, that we must apply an abuse-of-discretion standard. Rule 60(b) provides, in pertinent part: In Ex parte Dowling, we stated: 477 So. 2d at 402-03 (citations omitted). Buddy's did label its motion as a Rule 60(b) motion, and we have recognized that filing a Rule 60(b) motion is the proper procedure for challenging the validity of a foreign judgment that has been domesticated in Alabama. See Greene v. Connelly, 628 So. 2d 346, 350-51 (Ala.1993). However, Buddy's makes no substantive attack on the Minnesota judgment. See Ex parte Osborn, 375 So. 2d 467, 468 (Ala.1979). On the contrary, Buddy's concedes to this Court that the Minnesota judgment obtained by Lyon should eventually be enforced by Alabama courts, under the full-faith-and-credit principle. Instead, Buddy's argues that execution on the Minnesota judgment should be stayed until the action by Buddy's against IDS is concluded. A motion seeking an order staying enforcement of a judgment must be brought pursuant to Rule 62, Ala.R.Civ.P. See Osborn, 375 So. 2d at 468 ("Although a stay of proceedings prior to judgment so as to await the decision of another court is within the inherent power of the court to control its docket, once a final judgment has been rendered, a trial court must proceed under [Ala.R.Civ.P. 62`Stay of Proceedings to Enforce a Judgment']."). The trial court properly refused to treat the motion as a Rule 60(b) motion. We also refuse to treat that motion as a Rule 60(b)(6) motion, because Buddy's does not by that motion seek relief from the operation of the Minnesota judgment, but rather seeks a stay of that judgment. Under Ala.Code 1975, § 6-9-232, a properly authenticated and filed foreign judgment "has the same effect and is subject to the same procedures, defenses, and proceedings for ... staying as a judgment of a circuit court of this state and may be enforced or satisfied in like manner." Under § 6-9-234(b), "[i]f the judgment debtor shows the circuit court any ground upon which enforcement of a judgment of any circuit court of this state would be stayed, the court shall stay enforcement of the foreign judgment for any appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this state." The ground offered *184 by Buddy's for staying enforcement of the domesticated Minnesota judgmentthe pendency of its unliquidated and unproven claim against IDSis not a valid ground for staying execution of a judgment. See Osborn, 375 So. 2d at 468 (holding that the trial court had no authority to stay execution of a judgment pending the outcome of a related action, based either on the trial court's inherent equitable powers or on the Alabama Rules of Civil Procedure). Moreover, the trial court stayed enforcement of the Minnesota judgment without requiring Buddy's to give security for payment of the money damages, as is required by § 6-9-234. What this Court stated in Osborn is equally applicable to the facts of this case (adapting the Osborn statement to the facts of this present case): 375 So. 2d at 469. Therefore, we hold that the trial court was without authority to stay execution of the domesticated Minnesota judgment. Lyon has shown a clear legal right to an order directing the trial court to vacate its order staying execution. Accordingly, we grant the petition and issue the writ. PETITION GRANTED; WRIT ISSUED. HOOPER, C.J., and MADDOX, HOUSTON, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.

July 21, 2000

a7395705-4087-4fd4-9aab-c97f71223995

Ex Parte Dumas

778 So. 2d 798

1990970

Alabama

Alabama Supreme Court

778 So. 2d 798 (2000) Ex parte David DUMAS and Mae Dumas. (In re Mae Dumas and David Dumas v. Melanie Wise). 1990970. Supreme Court of Alabama. August 18, 2000. *799 Wesley Schuessler, Opelika, for petitioners. Stanley A. Martin, Opelika, for respondent. LYONS, Justice. David Dumas and Mae Dumas petition for a writ of mandamus directing the trial court to vacate its order granting the defendant Melanie Wise discovery concerning the Dumases' medical records, through the use of several nonparty subpoenas. We deny the petition. The Dumases sued Wise to recover for injuries sustained in an automobile accident that, they allege, was negligently caused by Wise, the driver of the vehicle with which their vehicle collided. In their complaint, David Dumas claims he suffered an injury to his knee as a result of the accident, and Mae Dumas claims she suffered injuries to her arms, back, and neck as a result of the accident. Both the Dumases also claim to have suffered mental anguish as a result of the accident. In response to the Dumases' interrogatory answers, Wise gave notice of her intent to serve, on nonparties, several subpoenas relating to the Dumases' medical claims. Each subpoena requested the following: The Dumases moved to quash Wise's subpoenas. In their motion, they called the subpoenas "an invasion of privacy, vague, [and] unduly burdensome," and said they "call for information not likely to lead to discoverable information." The motion also stated that Wise was wrongly seeking "information related to the entire life and entire medical treatment of the plaintiff rather than limiting the request to injuries that are the result of this wreck or to preexisting conditions." Based on this response, the trial court held a hearing, at which the Dumases expressed their objections to the subpoenas. After finding the subpoenas facially reasonable, the trial court asked the Dumases whether a protective order could prevent the disclosure of any sensitive information not relevant to this case. Counsel for the Dumases refused to give a specific basis for a protective order and, instead, insisted that the subpoenas were simply overly broad and an invasion of privacy. Without a basis for narrowing the scope of discovery, the trial court refused to quash the subpoenas. The Dumases filed this mandamus petition. The issue presented is whether the trial court abused its discretion in refusing to quash the nonparty subpoenas, which the plaintiff's allege are unduly broad and constitute an invasion of their privacy. "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). This Court has held that a petition for a writ of mandamus is the proper method for reviewing "`whether a trial court has abused its discretion in ordering discovery, in resolving discovery matters, and in issuing discovery orders.'" Ex parte Compass Bank, 686 So. 2d 1135, 1137 (Ala.1996) (quoting Ex parte Mobile Fixture & Equip. Co., 630 So. 2d 358, 360 (Ala.1993)). "[A] petition for a writ of mandamus is the proper method for review of the propriety of the issuance of a subpoena duces tecum to parties and to nonparties." Ex parte Cummings, 776 So. 2d 771, 774 (Ala.2000) (citing Ex parte Anniston Personal Loans, Inc., 266 Ala. 356, 96 So. 2d 627 (1957)). Because the discovery process involves a considerable amount of discretion on the part of the trial court, the standard this Court applies on mandamus review of a discovery order is whether the petitioner has made a clear showing that the trial court abused its discretion. Ex parte Clarke, 582 So. 2d 1064, 1067 (Ala.1991). Thus, a writ of mandamus directing the trial judge to set aside its ruling on a discovery matter will issue only where it is clear that the trial court abused its discretion. Id. The Dumases contend that although their complaint alleged physical injuries, Wise's subpoenas request medical records and information not relevant to the specific injuries alleged, and that Wise's request violates their right to privacy. Specifically, the Dumases contend that Wise is not entitled to discovery of all information concerning their health, only information relevant to the injuries they claim to have suffered. *801 This Court has held that when a party files a lawsuit that makes an issue of his physical condition, he waives his privacy rights in favor of the public's interest in full disclosure. See Mull v. String, 448 So. 2d 952, 954 (Ala.1984). The Alabama Rules of Civil Procedure allow broad and liberal discovery. Ex parte O'Neal, 713 So. 2d 956, 959 (Ala.1998). Rule 26(b)(1), Ala. R. Civ. P., allows "[p]arties [to] obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action" and which is "reasonably calculated to lead to the discovery of admissible evidence." This Court has written: "A trial judge, who has broad discretion in this area, should nevertheless incline toward permitting the broadest discovery and utilize his discretion to issue protective orders to protect the interests of parties opposing discovery." Ex parte AMI West Alabama Gen. Hosp., 582 So. 2d 484, 486 (Ala.1991). In fact, this Court has suggested that it issues more writs of mandamus to correct orders improperly restricting discovery than it issues to correct orders permitting too much discovery. Id. A party subject to discovery can prevent the disclosure of confidential matters not subject to discovery by securing a protective order pursuant to Rule 26(c), Ala. R. Civ. P. The subpoenas were directed to the Dumases' medical-care providers, drug stores, employers, and their health-insurance carrier. The Dumases claim damages for physical injuries and mental anguish, and the subpoenas were directed to parties who typically would possess information relevant to such injuries or harm. Thus, Wise should be permitted discovery from such nonparties if there is any likelihood that the information sought will aid in the pursuit of her defense. AMI, 582 So. 2d at 485. Given the scope of the Dumases' claim for damages, we conclude that Wise is entitled to a broad range of information relating to the Dumases' medical history. We cannot hold that the trial court abused its discretion in refusing to quash the broadly phrased subpoenas. Furthermore, at the hearing on this issue the trial court offered several times to fashion a protective order that would protect the Dumases from disclosure of any potentially embarrassing and/or irrelevant information. He asked the Dumases' attorney to explain what information Wise had asked for that he thought was beyond discovery. However, the attorney refused to specify any grounds upon which the trial court could issue a protective order. Instead, he repeatedly stated that the trial court should require Wise to narrow the scope of her subpoenas to include information concerning only the specific injuries the Dumases complained of or preexisting conditions related to those injuries. The Dumases never gave a specific reason why the trial court should narrow the scope of Wise's discovery requests. Given the broad discretion vested in the trial court with regard to discovery, and given the Dumases' failure to specify a basis for a protective order, we find no abuse of discretion in the court's refusing to restrict discovery. WRIT DENIED. HOOPER, C.J., and MADDOX, COOK, and JOHNSTONE, JJ., concur. [1] We note that not every subpoena requested information concerning both Mae Dumas and David Dumas. However, the general language used in each subpoena is substantially similar to the wording quoted here.

August 18, 2000

89351905-7b64-40d5-becb-c15a42ae3ce8

Ex Parte Burgess

827 So. 2d 193

1980803

Alabama

Alabama Supreme Court

827 So. 2d 193 (2000) Ex parte Willie BURGESS, Jr. (Re Willie Burgess, Jr. v. State). 1980803. Supreme Court of Alabama. August 25, 2000. Rehearing Denied February 8, 2002. *195 Thomas M. Di Giulian, Decatur; and William L. Middleton of Eyster, Key, Tubb, Weaver & Roth, Decatur, for petitioner. Bill Pryor, atty. gen., A. Vernon Barnett IV, asst. atty. gen., for respondent. JOHNSTONE, Justice. Willie Burgess, Jr., was indicted for, tried for, and convicted of, capital murder on the theory of robbery-murder as defined by § 13A-5-40(a)(2), Ala.Code 1975. The jury recommended death and the trial court sentenced Burgess to death. Burgess appealed to the Court of Criminal Appeals, which affirmed his conviction and sentence. Burgess v. State, 827 So. 2d 134 (Ala.Crim.App.1998). Burgess petitioned for a writ of certiorari, which we issued as a matter of right pursuant to Rule 39, Ala. R.App. P., as it existed at the time of his petition. Before us, Burgess argues numerous issues, which the Court of Criminal Appeals addresses in its long and detailed opinion. The most meritorious of the issues are fact specific. Because our review of the record, the briefs, the law, and the opinion of the Court of Criminal Appeals reveals no prejudicial error, we affirm. Several of the discussions of issues in the opinion of the Court of Criminal Appeals, however, deserve some observations by us. The first section of the opinion of the Court of Criminal Appeals addresses Burgess's argument that the trial court erred in denying his challenges for cause against two veniremembers, Mr. H. and Mr. C, grounded on his contention that they both had "fixed opinions" about his guilt. 827 So. 2d at 146. After the prosecutor learned that a number of the veniremembers had heard or read about the murder, the prosecutor asked the veniremembers: (R. 364-65.) (Emphasis added.) When two veniremembers, other than Mr. H. and Mr. C., responded that they would have difficulty disregarding what they had heard, the prosecutor questioned them further. However, neither Mr. H. nor Mr. C. expressed any reservations about his ability to decide the case on the basis of only the evidence presented at trial. During his voir dire, the prosecutor also asked whether any of the veniremembers had friends who had been victims of crimes, and Mr. H., among others, raised his hand and responded: "I had a student that was murdered less than a year ago." (R. 360.) Mr. H. was not asked any further questions about this murder. When defense counsel, during his voir dire, specifically asked Mr. H. whether he could ignore any extraneous facts in making his decision of guilt or innocence, Mr. H. responded: "I can't tell you for sure that I could." Defense counsel's voir dire of Mr. H. continued: (R. 416-17.) That answer concluded defense counsel's individual voir dire of Mr. H. After defense counsel had learned through his initial voir dire of the veniremembers that Mr. C., a cabdriver, had heard "hearsay" about the case, defense counsel asked Mr. C., "Do you have an opinion as to what you've seen, read or heard, whatever reason, that would cause you to be biased against my client?" (R. 406.) Mr. C. responded: "All I can go by is just what hearsay and that hearsay don't mean nothing." (R. 407.) Defense counsel's voir dire of Mr. C. continued: (R. 407-10.) Neither the defense counsel, the prosecutor, nor the trial judge questioned Mr. C. individually further in this regard. However, at the conclusion of his voir dire, when defense counsel asked all the veniremembers, including Mr. H. and Mr. C., whether any of them would have a problem ascertaining the facts from the evidence presented at trial and applying to those facts the law instructed by the trial court, no one responded. (R. 422-23.) At the close of his voir dire of the panel of veniremembers including Mr. H. and Mr. C., defense counsel moved to strike Mr. H. and Mr. C. for cause. Defense counsel moved to strike Mr. H. for cause on the grounds that he had expressed a fixed opinion as to Burgess's guilt and that he had had a former student who was killed by Burgess's cousin, Roy Burgess. (The record does not reflect that Mr. H. stated that Burgess's cousin had killed his student.) The prosecutor argued that, although Mr. H. did state, in response to the prosecutor's question whether any of the veniremembers knew any victims of crime, that he had a student who had been killed, Mr. H. did not state that this prior incident would influence his decision in Burgess's case. (R. 360, 431.) Defense counsel moved to strike Mr. C. for cause on the ground that Mr. C. had heard "hearsay facts" which biased him against Burgess. (R. 429.) The trial court denied defense counsel's motions to strike both Mr. H. and Mr. C. for cause. Thus, defense counsel used two of his peremptory strikes to remove Mr. H. and Mr. C. from the venire. Burgess contends that the trial judge's denial of his challenges for cause against Mr. H. and Mr. C. relegated him to spending peremptory challenges on them and thereby violated his constitutional right to a fair and impartial jury trial. The test for deciding a challenge for cause is whether the juror can ignore his preconceived ideas and render a verdict according to the evidence and the law. Ex parte Taylor, 666 So. 2d 73, 82 (Ala.1995). A juror "need not be excused merely because [the juror] knows something of the case to be tried or because [the juror] has formed some opinions regarding it." Kinder v. State, 515 So. 2d 55, 61 (Ala.Crim.App. 1986). For a juror to be disqualified, the juror's opinion of the defendant's guilt or innocence "must be so fixed that it would bias the verdict a juror would be required to render." Oryang v. State, 642 So. 2d 979, 987 (Ala.Crim.App.1993) (quoting Siebert *198 v. State, 562 So. 2d 586, 595 (Ala.Crim. App.1989)) (emphasis added). See also § 12-16-150, Ala.Code 1975. Knop v. McCain, 561 So. 2d 229, 234 (Ala. 1989). "The qualification of prospective jurors rests within the sound discretion of the trial judge." Morrison v. State, 601 So. 2d 165, 168 (Ala.Crim.App.1992); Ex parte Cochran, 500 So. 2d 1179, 1183 (Ala. 1985). This Court will not disturb the trial court's decision "unless there is a clear showing of an abuse of discretion." Ex parte Rutledge, 523 So. 2d 1118, 1120 (Ala. 1988). "This court must look to the questions propounded to, and the answers given by, the prospective juror to see if this discretion was properly exercised." Knop, 561 So. 2d at 232. We must consider the entire voir dire examination of the juror "in full context and as a whole." Ex parte Beam, 512 So. 2d 723, 724 (Ala.1987); Ex parte Rutledge, 523 So. 2d at 1120. Having reviewed the entire voir dire examination of Mr. H and Mr. C., we do not find that either had a fixed opinion about Burgess's guilt or innocence that would bias his verdict in this case. Mr. H. expressed no bias against Burgess and revealed no fixed opinion about Burgess's guilt or innocence. While Mr. C., in answering defense counsel's question whether anything Mr. C. had seen, read, or heard would bias him against Burgess, stated that he had heard hearsay about the case, he did not state whether what he had heard was favorable or unfavorable to Burgess. In fact, Mr. C. did not state any of the facts that he had heard. For aught that appears in the record, Mr. C. heard only hearsay facts that were immaterial, innocuous, or even favorable to Burgess. Mr. C.'s act of answering the inquiry about biashis act of answering in and of itself was more likely an abundance of candor than a disclosure of bias. None of Mr. C.'s responses during the voir dire reveal any bias against Burgess. Thus, the trial court did not abuse its discretion in denying defense counsel's challenges for cause against Mr. H and Mr. C. See, e.g., Thomas v. State, 539 So. 2d 375 (Ala.Crim.App.), aff'd, 539 So. 2d 399 (Ala.1988), cert. denied, 491 U.S. 910, 109 S. Ct. 3201, 105 L. Ed. 2d 709 (1989); Bush v. State, 695 So. 2d 70 (Ala.Crim.App.1995); Johnson v. State, 356 So. 2d 769 (Ala.Crim.App.1978); and McCorvey v. State, 339 So. 2d 1053 (Ala. Crim.App.), cert. denied, 339 So. 2d 1058 (Ala.1976). In section IX(A) of its opinion, the Court of Criminal Appeals discusses one of the prosecutor's jury arguments, which the Court of Criminal Appeals characterizes as "reply in kind." While the reply-in-kind doctrine allows a party to argue a topic argued by the opposing party even though that topic may be immaterial, irrelevant, prejudicial, or otherwise improper, the reply-in-kind doctrine does not allow a party to state untrue facts outside the record in order to rebut true facts of record argued on that topic by the opposing party. Ex parte Rutledge, 482 So. 2d 1262 (Ala.1984); Davis v. State, 494 So. 2d 851 (Ala.Crim.App.1986). Even so, we find no error to reverse on this issue. An improper argument by counsel cannot, in and of itself, constitute an error. See Ex parte Land, 678 So. 2d 224 (Ala.1996); and Ex parte Musgrove, 638 So. 2d 1360 (Ala.1993), cert. denied, Rogers v. Alabama, 513 U.S. 845, 115 S. Ct. 136, 130 L. Ed. 2d 78 (1994). *199 While parties may cause or invite an error, only the court can commit an error. The error, if any, would consist only of incorrectly overruling an objection to an improper argument, incorrectly refusing a requested curative instruction, giving an inadequate curative instruction after a proper request, denying a motion for a mistrial in the case of an ineradicably prejudicial argument, or, in the very rare case, omitting some necessary sua sponte redress for an argument so egregious as to require sua sponte redress by the court even absent an objection with appropriate follow-up by the aggrieved party. The prosecutor's argument in this particular instance does not approach the rare degree of egregiousness that would require sua sponte redress by the court, and the defendant did not interpose any objection to the argument. Thus this issue presents no reversible error. See Rule 45A, Ala. R.App. P.; Kuenzel v. State, 577 So. 2d 474 (Ala.Crim.App.1990), aff'd, 577 So. 2d 531 (Ala.), aff'd, 502 U.S. 886, 112 S. Ct. 242, 116 L. Ed. 2d 197 (1991); and Ex parte Womack, 435 So. 2d 766 (Ala.), cert. denied, 464 U.S. 986, 104 S. Ct. 436, 78 L. Ed. 2d 367 (1983). Section XVI of the opinion of the Court of Criminal Appeals addresses Burgess's argument that the trial court erred in denying his motion to suppress the videotaped statement he made to news reporters on the night of his arrest. In his brief Burgess argues that the police forced him to "walk the media gauntlet" when they could have taken him from the interrogation room to the Morgan County Jail "back through the basement garage," which, Burgess implies, would have provided a route isolated from the media. (Appellant's brief, p. 74.) We have searched the record in vain to find any evidence of a route that would have been isolated from the news media all the way from the building containing the interrogation room to the entrance of the county jail. For aught that appears from the record, any route available to the police would have been equally accessible to the news media. Thus the factual deficiency of Burgess's argument in this regard pretermits any analysis of the legal issues entailed by his motion to suppress. Section XXIII of the opinion of the Court of Criminal Appeals addresses Burgess's argument that the trial court erred in refusing three requested jury instructions during the guilt phase of the trial. While we agree with the Court of Criminal Appeals that the three requested instructions were refused without error, we notice the recitation that the trial court "further instructed [the jury] that, while intent to commit murder may be presumed from the defendant's act of using a deadly weapon, the presumption will not support the conviction of capital murder." 827 So. 2d at 189. (Emphasis added.) An instruction that "intent to commit murder may be presumed from the defendant's act of using a deadly weapon," would unconstitutionally shift to the defendant the burden of proving lack of specific intent. Yates v. Evatt, 500 U.S. 391, 111 S. Ct. 1884, 114 L. Ed. 2d 432 (1991); and Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). The correct instruction on this particular point would be that intent to kill may be inferred from the defendant's act of using a deadly weapon. Sparks v. State, 261 Ala. 2, 75 So. 2d 103 (1953); and Douglas v. State, 42 Ala. App. 314, 328, 163 So. 2d 477, 490 (1963), overruled on other grounds, 380 U.S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965). Ex parte Bayne, 375 So. 2d 1239, 1244 (Ala. 1979), is overruled to the extent that it misconstrues Douglas, supra, and allows an instruction that intent may be presumed, *200 as distinguished from inferred, from the use of a deadly weapon. We have, however, reviewed the entire text of the trial judge's jury instruction on this point. While the trial judge did, toward the beginning of his instruction, say that the intent "may be presumed," he then promptly and correctly changed his terminology to say that the intent "may be inferred" and he concluded his instruction on this topic with the correct "may-be-inferred" terminology. The absence of any objection by the defendant specifically directed to the court's initial incorrect verbiage that intent "may be presumed" suggests that the defendant was satisfied that the trial judge's corrected language was adequate to eliminate any prejudice from the initially incorrect language. See Ex parte Woodall, 730 So. 2d 652, 657 (Ala. 1998); Kuenzel, supra; and Ex parte Kennedy, 472 So. 2d 1106, 1111 (Ala.1985). Accordingly, we find no plain error in this regard. While defense counsel did object to other aspects of the instruction on inferable intent, we hold that these other aspects of the instruction, in the context of the entire jury charge, were correct. The law requires that the Court of Criminal Appeals conduct its own independent review of the death penalty imposed on the defendant. § 13A-5-53 and § 12-22-241, Ala.Code 1975. We find no error in the discharge of that duty in this case by the Court of Criminal Appeals. In accordance with the foregoing, the judgment of the Court of Criminal Appeals affirming the defendant's conviction and sentence is affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, and ENGLAND, JJ., concur. BROWN, J., recuses herself.[*] [*] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

August 25, 2000

fbc72a7d-6b78-4750-8121-b210b70043d7

Ex Parte Burgess

811 So. 2d 617

1980810

Alabama

Alabama Supreme Court

811 So. 2d 617 (2000) Ex parte Roy BURGESS, Jr. (In re Roy Burgess, Jr. v. State). 1980810. Supreme Court of Alabama. July 21, 2000. *618 Bryan A. Stevenson and J. Drew Colfax, Equal Justice Initiative of Alabama, Montgomery, for petitioner. Bill Pryor, atty. gen.; and Michael B. Billingsley and Kathryn D. Anderson, asst. attys. gen., for respondent. PER CURIAM. The opinion of January 28, 2000, is withdrawn and the following is substituted therefor. Roy Burgess, Jr., was convicted of capital murder for the death of Kevin Gardner, under § 13A-5-40(a)(2), Ala.Code 1975 murder made capital because it was committed during the course of a robbery in the first degree. Both Burgess and his victim were age 16 at the time the murder was committed. The jury recommended by a vote of 10-2 that Burgess be sentenced to life imprisonment without parole. The trial court, overriding the jury's recommendation, sentenced Burgess to death. The Court of Criminal Appeals affirmed Burgess's conviction and sentence. Burgess v. State, 811 So. 2d 557 (Ala.Crim.App. 1998). This Court granted certiorari review pursuant to Rule 39(c), Ala. R.App. P. The Court of Criminal Appeals set forth the following detailed statement of the facts of the case. 811 So. 2d at 564-66. We have carefully reviewed the 25 issues raised by Burgess before this Court, and we conclude that the Court of Criminal Appeals thoroughly and correctly addressed the issues that relate to Burgess's conviction. We address certain issues concerning Burgess's sentencing. Under our statutes, *622 a defendant who is convicted of a capital offense is entitled to a sentencing hearing. §§ 13A-5-45 through -53, Ala. Code 1975. After the jury has returned an advisory verdict, as this jury did, the trial court must permit the parties to present arguments concerning the existence of aggravating and mitigating circumstances. § 13A-5-47. The opinion of the Court of Criminal Appeals sets out the aggravating and mitigating circumstances that the trial court found to exist in Burgess's case: 811 So. 2d at 604. The trial court, after conducting the sentencing hearing, is then required, pursuant to § 13A-5-47(e), to "determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist," and that statute provides that "in doing so the trial court shall consider the recommendation of the jury contained in its advisory verdict." Although the statute provides that the trial court must consider the jury's recommendation, that recommendation is not binding on the court. Section 13A-5-48 discusses the weighing process required of the trial court. In its sentencing order, the trial court concluded that the one aggravating circumstance in Burgess's case outweighed all of the mitigating circumstances. We first consider Burgess's contention that in sentencing him to death the trial judge improperly considered his juvenile record and his adjudications of juvenile delinquency. Burgess argues that after the jury voted 10-2 to recommend that he receive a sentence of life imprisonment without parole, the trial court improperly relied on his juvenile history to override the jury's recommendation and impose the death penalty. Burgess argues that the trial court erred by considering his history of juvenile adjudications to negate the statutory *623 mitigating circumstances of his lack of a significant criminal history and his age at the time the offense was committed. He contends that the trial court "deploy[ed] the prior delinquencies as if they were nonstatutory aggravation to effectively tip the balance in favor of death." Section 13A-5-47(b), Ala.Code 1975, requires that the trial court order and receive a written presentence investigation report "[b]efore making the sentencing determination," and that "[t]he report and any evidence submitted in connection with it shall be made part of the record in the case." Rule 26.3(b), Ala. R.Crim. P., provides for what may be contained in such a presentence report. When a defendant has a significant juvenile record, his or her teenage difficulties will appear as part of the presentence report. However, under the Alabama capital-sentencing scheme, juvenile adjudications are not convictions and cannot be considered as prior criminal activity. Freeman v. State, 555 So. 2d 196, 212 (Ala.Crim.App.1988), aff'd, 555 So. 2d 215 (Ala.1989), cert. denied, 496 U.S. 912, 110 S. Ct. 2604, 110 L. Ed. 2d 284 (1990). Only convictions can negate the statutory mitigating circumstance of no significant history of prior criminal activity. § 13A-5-51(1), Ala.Code 1975; Freeman v. State, 651 So. 2d 576, 597-98 (Ala.Crim.App. 1994). The fact that a trial court has access through the presentence report to the juvenile record of a defendant convicted of a capital crime, but cannot consider juvenile adjudications to negate the mitigating circumstance of the lack of any significant history of prior criminal activity, appears to be a contradiction. In discussing that issue, the Court of Criminal Appeals concluded that although juvenile adjudications cannot be used to negate the mitigating circumstance, the trial court can consider them when conducting the weighing process required in capital cases. The Court of Criminal Appeals stated: 811 So. 2d at 606. We agree with the Court of Criminal Appeals' conclusion that a trial court may consider a defendant's juvenile adjudications to be a relevant consideration in deciding what weight to assign to the statutory mitigating circumstances of a defendant's lack of a significant prior criminal history and a defendant's age at the time of the offense. Other courts considering this dilemma have come to the same conclusion as did the Court of Criminal Appeals. See, e.g., United States v. Pretlow, 770 F. Supp. 239, 243 (D.N.J.1991) (applying New Jersey law); Scott v. Dugger, 686 F. Supp. 1488, 1508 (S.D.Fla.1988), aff'd, 891 F.2d 800 (11th Cir.1989), cert. denied, 498 U.S. 881, 111 S. Ct. 224, 112 L. Ed. 2d 179 (1990) (applying Florida law); State v. Bays, 87 Ohio St.3d 15, 33-34, 716 N.E.2d 1126, 1145 (1999), cert. denied, 529 U.S. 1090, 120 S. Ct. 1727, 146 L. Ed. 2d 647 (2000); State v. Rodriguez, 656 A.2d 262, 277-78 (Del.Super.Ct.1993). Nevertheless, Alabama law explicitly precludes a trial court from using juvenile adjudications to negate the mitigating circumstance of no significant history of prior criminal activity. Ex parte Davis, 718 So. 2d 1166, 1178 (Ala.1998), cert. denied, 525 U.S. 1179, 119 S. Ct. 1117, 143 L. Ed. 2d 112 (1999). In other words, during the sentencing process in a capital case, the trial court may use a defendant's juvenile record to diminish the weight to be accorded the mitigating circumstance of that defendant's lack of a significant history of prior criminal activity, as well as the mitigating circumstance of that defendant's age at the time he or she committed the capital offense, but the trial court may not use the juvenile record as the basis for giving little or no weight to such mitigating circumstances. We disagree, however, with the Court of Criminal Appeals' conclusion that the trial court in this case did not improperly consider Burgess's juvenile adjudications to negate the mitigating circumstances it found to exist. The trial court's sentencing order shows that Burgess's juvenile record was a conspicuous and dominating factor in the trial court's weighing process. The trial court's sentencing order read, in pertinent part: The statements contained in the trial court's painstaking written order in this very difficult case reflect that the trial court relied upon Burgess's juvenile adjudications to give nominal weight not only to the two statutory mitigating circumstances, but also to other mitigating circumstances, including the jury's recommendation. The trial court's use of Burgess's juvenile recorduse indicated by the court's numerous references to that recordto discount to inconsequentiality the numerous mitigating circumstances, in favor of the one aggravating circumstance, was an abuse of discretion. We next consider Burgess's argument that the trial court erred in refusing to consider, as a mitigating circumstance, the extremely lenient treatment of Burgess's accomplices. He contends that the imposition of a death sentence is disproportionate when the state did not prosecute any of the older participants in this crime. Burgess reminds the Court that both Demetrius Stevenson and Richie Jones were in Kevin Gardner's car at the time of the robbery-murder. Both Stevenson and Jones admitted in their testimony at Burgess's trial that earlier on the day of the shooting they had participated in the discussion with Burgess concerning the plan to steal a car or a car stereo, and that they were in the car when Kevin Gardner was killed. These two men, along with Kevin Matthews, Will Hatton, and Larry Hays, all drove to Birmingham with Burgess in an attempt to sell Gardner's stolen car to a "chop shop" there. Stevenson removed and sold the stereo equipment from Gardner's car. Section 13A-5-53(b)(3) requires that the sentence of death be neither excessive nor disproportionate to the penalties imposed in similar cases, considering both the crime and the defendant. In Ex parte Henderson, 616 So. 2d 348 (Ala.1992), this Court treated the fact that the sentence imposed in the companion case was remitted from death by electrocution to life in prison without benefit of parole, as a factor the trial court must consider, and it remanded the cause for consideration of that factor. Id. at 350-51. Here, all of the other participants involved received complete immunity from prosecution, a factor to which the trial court assigned only "some mitigation." Given the fact that the defendant was the only one of six participants in this offense who was prosecuted, we conclude that the trial court should have given this factor greater weight. Burgess further argues that the imposition of the death penalty in his case violates international law, because he was only 16 years old at the time of the commission of the capital offense. He contends *629 that Article 6(5) of the International Covenant on Civil and Political Rights provides that a sentence of death shall not be imposed for crimes committed by persons below 18 years of age. This Court thoroughly discussed an identical argument in Ex parte Pressley, 770 So. 2d 143 (Ala. 2000), wherein we concluded that the death penalty can legally be imposed upon a 16-year-old charged with a capital offense. We affirm in this case our reasoning in Ex parte Pressley. The trial court provided a lengthy, written "Determination of Sentence by the Court," pursuant to § 13A-5-47, Ala.Code 1975. This Court has carefully studied this document, the record, the briefs filed in this case, the oral argument made on Burgess's behalf, and the opinion of the Court of Criminal Appeals, and has carefully considered all issues Burgess raised. We have searched the record of Burgess's trial for "plain error,"[1] i.e., error so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings. Rule 45, Ala. R.App. P. We find no error, "plain" or otherwise, that requires us to reverse Burgess's conviction. However, for the reasons stated above, we remand this cause with instructions for the Court of Criminal Appeals to remand for the trial court to reevaluate Burgess's sentence and to consider whether, given Burgess's age, the treatment of the other participants, the jury's sentencing recommendation, and the fact that Burgess has no significant history of prior criminal activity, a death sentence is disproportionate in this case. The trial court should be instructed to resentence Burgess and, thereafter, to submit a written order including its findings and conclusions to the Court of Criminal Appeals within 90 days. The judgment of the Court of Criminal Appeals is affirmed as to the other issues presented by Burgess. OPINION OF JANUARY 28, 2000, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; AFFIRMED AS TO THE CONVICTION; REVERSED AS TO THE SENTENCE; AND REMANDED WITH INSTRUCTIONS AS TO SENTENCING. HOOPER, C.J., and MADDOX, COOK, LYONS, and ENGLAND,[*] JJ., concur. JOHNSTONE, J., concurs in part and concurs in the result in part, and concurs in the order overruling the application for rehearing.[**] HOUSTON, J., concurs in the judgment affirming as to the conviction, reversing as to the sentence, and remanding, and concurs in the order overruling the application for rehearing. SEE, J., concurs in the affirmance as to the conviction; dissents from the reversal as to the sentence; and dissents from the order overruling the application for rehearing. BROWN, J., recuses herself.[***] *630 JOHNSTONE, Justice (concurring in part and concurring in the result in part, and concurring in the order overruling the application for rehearing). I concur with the main opinion except that I concur only in the result on the issue of the way to consider the statutory mitigating circumstance of "no significant history of prior criminal activity," § 13A-5-51(1), Ala.Code 1975, in the case of a young defendant with a record of adjudications of juvenile delinquency. This statutory mitigating circumstance presents a dilemma in this factual scenario. On the one hand, our law prohibits the court from considering the adjudications of juvenile delinquency to negate this statutory mitigating circumstance. Ex parte Davis, 718 So. 2d 1166, 1178 (Ala.1998) ("[J]uvenile adjudications could not properly be used to negate the mitigating circumstance of `no significant history of prior criminal activity.'"), and Freeman v. State, 555 So. 2d 196, 212 (Ala.Crim.App.), aff'd, 555 So. 2d 215 (Ala.1989), cert. denied, 496 U.S. 912, 110 S. Ct. 2604, 110 L. Ed. 2d 284 (1990). See also Baldwin v. State, 456 So. 2d 117, 125 (Ala.Crim.App.1983), aff'd, 456 So. 2d 129 (Ala.1984), aff'd, 472 U.S. 372, 105 S. Ct. 2727, 86 L. Ed. 2d 300 (1985). On the other hand, this statutory mitigating circumstance really is intended for the person who has obeyed the criminal laws until he or she has committed the capital murder being tried. While our society makes many allowances for youthful immaturity, and indeed has devoted a specific statutory mitigating circumstance to youthfulness, § 13A-5-51(7), Ala.Code 1975, the statutory mitigating circumstance of no significant history of prior criminal activity increases in applicability and importance as the age of the defendant increases during the years when the defendant could have incurred adult criminal convictions. Thus in the factual scenario before us a young capital-murder defendant with a record of prior adjudications of juvenile delinquencythe most accurate analysis and application of the statutory mitigating circumstance of no significant history of prior criminal activity would seem to be, first, that this circumstance is necessarily due only minimal weight for a juvenile tried as an adult, and then only to the extent that the law authorized the transfer or other treatment of juveniles as adults for prosecution before the defendant committed the capital murder being tried; and, second, the weight of this circumstance increases in direct proportion to the age of the defendant over the maximum age for a juvenile. Thus, in the case before us, the circumstance of no significant history of prior criminal activity is necessarily due only minimal weight. HOUSTON, Justice (concurring in the judgment affirming as to the conviction, reversing as to the sentence, and remanding). Article VI, paragraph 2, of the Constitution of the United States provides: The United States Supreme Court has interpreted this paragraph to mean what it says. Zschernig v. Miller, 389 U.S. 429, 440-41, 88 S. Ct. 664, 19 L. Ed. 2d 683 (1968); United States v. Pink, 315 U.S. 203, 230-31, 62 S. Ct. 552, 86 L. Ed. 796 (1942) ("state law must yield when it is inconsistent with or impairs the policy or provisions of a treaty"). *631 On September 8, 1992, the United States ratified the International Covenant on Civil and Political Rights ("ICCPR"); Article 6(5) of this treaty provides: "Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women." Roy Burgess was 16 years old when he committed the horrible crimes for which he has been sentenced to death. The majority opinion indicates that the Justices concurring therein are satisfied that the United States Senate Reservation 1(2) relieves state justices from their constitutional obligation to be bound by this treaty. The Senate Reservation begins with a clause reading: "The United States reserves the right...." This clause uses a singular verb. The following statement appears in Merriam Webster Dictionary of English Usage, p. 929 (1989): "[A]s the United States came to be thought of as a single entity, the singular verb came more and more into use." The Senate's reservation reads: Federalism is alive and well. The United States Constitution binds me as a Supreme Court Justice of the State of Alabama to abide by the ICCPR, Article 6(5), and not to impose the sentence of death on Burgess for the crimes committed when he was 16 years of age. I am not persuaded that the Senate's reservation, if not invalid for other reasons, frees me as a state justice, as opposed to a federal justice or judge, from the treaty's restriction against the imposition of a sentence of death for a crime committed by a person below the age of 18 years. In Domingues v. Nevada, 114 Nev. 783, 961 P.2d 1279 (1998), in a 3-2 decision, the Supreme Court of Nevada rejected the defendant's contention that the ICCPR prohibited the imposition of the death sentence for crimes committed by a 16-yearold. The Supreme Court of the United States denied the defendant's petition for certiorari review on November 1, 1999. 528 U.S. 963, 120 S. Ct. 396, 145 L. Ed. 2d 309 (1999). I am aware that an order of the Supreme Court of the United States denying a petition for certiorari review is not to be taken as an expression of an opinion on the merits of the case. Maryland v. Baltimore Radio Show, 338 U.S. 912, 70 S. Ct. 252, 94 L. Ed. 562 (1950); Carpenter v. Gomez, 516 U.S. 981, 116 S. Ct. 488, 133 L. Ed. 2d 415 (1995); however, I am also aware that when a petition raises a substantial question, the Court sometimes "points out those concerns which, although unrelated to the merits, justify the decision not to grant review." Carpenter v. Gomez, 516 U.S. 981, 116 S. Ct. 488. How much more substantial can a question be than whether a person can be executed for a crime committed in his youth, when the ICCPR, a treaty to which the United States is a signatory, makes such an execution facially illegal? However, the Court did not point out concerns justifying the decision not to grant review that were unrelated to the merits. Therefore, I do not believe it is a quantum leap for me to assume that certiorari review was denied based on the merits of the case. In this present case, the defendant Burgess committed the capital crime when he was 16 years old; the jury recommended that he be sentenced to life imprisonment without parole for that crime. The trial court overrode that recommendation and *632 sentenced him to death, which the trial court had every right to do under the Constitution of the United States, Harris v. Alabama, 513 U.S. 504, 115 S. Ct. 1031, 130 L. Ed. 2d 1004 (1995), and which the trial court may have had a right to do under the Constitution of Alabama of 1901. See Ex parte Giles, 632 So. 2d 577, 587-89 (Ala.1993) (Houston, J., concurring in the result); Ex parte Jackson, 672 So. 2d 810, 811-13 (Ala.1995) (Houston, J., concurring in the result); Ex parte Scott, 728 So. 2d 172, 191-92 (Ala.1998) (Houston, J., concurring specially). Before I voted in this case, knowing that the State of Alabama is going to be named in a list with such countries as Iran, Iraq, Bangladesh, Nigeria, and Pakistan, as jurisdictions approving death sentences for persons under age 18, I reread Clarence Darrow's summation in the Leopold and Loeb case. Attorney for the Damned: Clarence Darrow in His Own Words, pp. 16-88 (Simon and Schuster, Inc.1957). Like Darrow, I wonder if Attorney for the Damned, p. 82. Even though I am not persuaded that the Senate's resolution removes the ICCPR prohibition in State courts, I infer that the United States Supreme Court indicated that it did. I concur in the result, and I pray that in doing so I am not committing "an unforgivable act." SEE, Justice (concurring in the affirmance as to the conviction; dissenting from the reversal as to the sentence; and dissenting from the order overruling the application for rehearing). I would grant the State's application for a rehearing in this case. After further consideration, I believe the trial court properly considered Burgess's juvenile record in deciding what weight to accord the statutory mitigating circumstance of Burgess's lack of a significant criminal history, and I believe that in light of that juvenile record the trial court properly gave little weight to that statutory mitigating circumstance. I disagree with the conclusion that the trial court used Burgess's juvenile record to "negate" the statutory mitigating circumstance of Burgess's lack of a significant criminal history. The trial court found that that mitigating circumstance existed but had little weight. I agree with the trial court. Further, I cannot conclude that the trial court erred in failing to give more weight than it did to the State's leniency toward Stevenson and Jones as a mitigating factor. While it appears undisputed that Stevenson and Jones were Burgess's accomplices in stealing the car and the music equipment, Burgess's testimony is the only evidence indicating that either of them participated in killing Gardner or had any prior knowledge of an intention to kill Gardner. The trial court did consider as a nonstatutory mitigating circumstance the fact that Burgess was not alone at the time of the crime, but Burgess's testimony and that of Stevenson and Jones conflicted with respect to whether Stevenson and Jones were accomplices to capital murder. The trial court could have found that Stevenson and Jones were not accomplices to capital murder. If it did, then comparing the sentencing leniency toward Stevenson and Jones with the sentence imposed on *633 Burgess is inapposite. I have found no authority requiring such a comparison. Although Stevenson and Jones, who were older than Burgess and who were with Burgess during and after the murder, were not punished at all, it is not clear that they were as culpable as Burgess was. Thus, on further consideration, I conclude that the trial court's failure to give more weight to the State's leniency toward Stevenson and Jones as a mitigating circumstance is not error warranting a new sentencing hearing. [1] This case was initially reviewed pursuant to procedures applicable before Rule 39, Ala. R.App. P., was amended. The amendment of Rule 39 was effective May 19, 2000, as to death-penalty cases. [*] Although Justice England was not a member of this Court when this case was orally argued, he has listened to the tape of oral argument. [**] Although Justice Johnstone did not sit for oral argument, he has listened to the tape of oral argument. [***] Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.

July 21, 2000

446b1b62-55fe-47fe-8b84-7804f2cdc90a

Ex Parte Townsend

793 So. 2d 835

1990507

Alabama

Alabama Supreme Court

793 So. 2d 835 (2000) Ex parte Thomas R. TOWNSEND III. (Re Thomas R. Townsend III v. City of Mobile). 1990507. Supreme Court of Alabama. September 8, 2000. *836 Gregory S. Combs of Fernandez, Ollinger, Combs & Fontenot, L.L.C., Mobile, for petitioner. Wanda J. Cochran, asst. city atty., Mobile, for respondent. MADDOX, Justice. Thomas R. Townsend III was convicted of violating an ordinance of the City of Mobile. He appealed. The Court of Criminal Appeals remanded the case with instructions. Townsend v. City of Mobile, 793 So. 2d 828 (Ala.Crim.App.1998). On return to the remand, that court, on May 28, 1999, affirmed the conviction. We granted Townsend's petition for certiorari in order to review a single issue: Can a municipality charging the violation of a city ordinance establish a prima facie case without proving the provisions of the entire ordinance? We hold that it cannot; therefore, we reverse the judgment of the Court of Criminal Appeals and remand. Townsend was employed as a sales representative for Garland Company, an Ohio corporation that manufactures waterproofing, flooring, and roofing materials. His sales territory included the Mobile area, the Florida Panhandle, and the Mississippi Gulf Coast. The City of Mobile, under the provisions of Ordinance No. 34-082, requires that a person obtain a business license before conducting any business activity within the Mobile city limits. Townsend did not obtain a license for the year 1997; the city prosecuted him for violating the ordinance. The Mobile Municipal Court found him guilty. That court fined him $200, plus court costs, and sentenced him to 30 days in jail, but suspended the sentence and placed him on one year's probation. *837 Townsend appealed his conviction to the Mobile Circuit Court for a trial de novo. During his trial in the circuit court, the city prosecutor introduced into evidence only a portion of Ordinance No. 34-082. Townsend moved for a judgment of acquittal, challenging the sufficiency of the evidence presented. The trial court denied the motion and found Townsend guilty. Townsend was fined $200, plus court costs. Townsend appealed to the Court of Criminal Appeals, arguing that the City had failed to prove a prima facie case against him by not introducing the entire ordinance. He also argued that the ordinance was unconstitutional. The Court of Criminal Appeals held that the City's failure to introduce the entire municipal ordinance into evidence was harmless error because, it held, the City introduced into evidence enough of the ordinance to show the violation alleged and penalties applicable to Townsend's violation. Townsend v. City of Mobile, 793 So. 2d at 830. That court, however, remanded the case for the trial court to develop a more complete record regarding the facts relating to Townsend's constitutional claim. On the trial court's return to the remand, the Court of Criminal Appeals affirmed Townsend's conviction. This Court granted Townsend's certiorari petition in order to review the Court of Criminal Appeals' holding that the City's failure to prove the entire ordinance was harmless error. In affirming Townsend's conviction for violating Ordinance No. 34-082 despite the City's failure to offer into evidence the entire ordinance, the Court of Criminal Appeals stated: 793 So. 2d at 830. This holding seems to suggest that court believed the law requires only that the defendant have notice of the charge for which he is being tried-and that if that requirement is met then the entire ordinance need not be admitted into evidence. In Ex parte Maxwell, 439 So. 2d 715 (Ala.1983), another case arising out of an alleged violation of a Mobile city ordinance, this Court stated: 439 So. 2d at 716. A municipal prosecutor, in pleading and proving a criminal case, necessarily has the burden of pleading and proving the entire ordinance under which the defendant is being prosecuted, because only the entire ordinance accurately reflects the will of the governing body that approved it. To offer into evidence less than the entire ordinancein this case the City concedes it presented a copy that was less than completedefeats the purpose of the requirement stated in Maxwell, which is to have the prosecuting authority prove the *838 existence of the law under which the defendant is being prosecuted. While introducing into evidence portions of an ordinance would certainly demonstrate that the ordinance does, in fact, exist, it is well settled that a municipality charging the violation of an ordinance must plead and prove the entire ordinance. By failing to plead and prove Ordinance No. 34-082 in its entirety, the City failed to establish a prima facie case of the violations. Because the failure to prove a prima facie case can never be considered harmless error under any analysis, we reverse the judgment of the Court of Criminal Appeals and remand this case for an order or proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and HOUSTON, COOK, 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.

September 8, 2000

61951935-6bfe-4d92-a6ab-2ca2b6861d92

Ex Parte McWhorter

781 So. 2d 330

1990427

Alabama

Alabama Supreme Court

781 So. 2d 330 (2000) Ex parte Casey A. McWHORTER. (In re Casey A. McWhorter v. State). 1990427. Supreme Court of Alabama. August 11, 2000. Rehearing Denied October 27, 2000. *332 Randall S. Susskind, Equal Justice Initiative of Alabama, Montgomery; James R. Berry, Albertville; and Thomas E. Mitchell, Albertville, for petitioner. Bill Pryor, atty. gen., and Thomas F. Parker IV, asst. atty. gen., for respondent. LYONS, Justice. Casey McWhorter was convicted of capital murder for the death of Edward Lee Williams; he was convicted under § 13A-5-40(a)(2), Ala.Code 1975murder committed during the course of a robbery in the first degree. By a vote of 10-2, the jury recommended that McWhorter be sentenced to death. The trial court followed the jury's recommendation and sentenced McWhorter to death by electrocution. In a unanimous decision, the Court of Criminal Appeals affirmed McWhorter's conviction and sentence. McWhorter v. State, 781 So. 2d 257 (Ala.Crim.App.1999). We granted certiorari review, pursuant to Rule 39(c), Ala.R.App.P.[1] We affirm the judgment of the Court of Criminal Appeals. McWhorter has raised 29 issues for our review. The Court of Criminal Appeals fully addressed and correctly resolved each of these issues in its thorough and well-researched opinion. Only two issues warrant further discussion; both of them *333 were specifically addressed at oral argument. The trial court's sentencing order included the following detailed statement of the facts of the case: R. 386-88. McWhorter argues that he presented evidence indicating he was intoxicated at the time of the killing, that the trial court instructed the jury that evidence of voluntary intoxication can support a finding of a *334 lack of the intent necessary to a finding of capital murder, and that the trial court therefore erred in refusing to instruct the jury on manslaughter, felony murder, and "intentional murder" as lesser included offenses. This case raises the question of the quantum of proof sufficient to warrant a lesser-included-offense instruction based on the possibility that the jury may not find the intent necessary for a conviction of capital murder. McWhorter argues that the jury could have inferred from the evidence presented at trial that he was unable to form the intent to commit murder because, he says, he was extremely intoxicated at the time of the crime. The evidence shows that McWhorter and his accomplices carefully planned and carried out the crime. McWhorter and Daniel Minor lay in wait for hours at the victim's home and, while waiting, manufactured and tested homemade silencers to use on weapons found in the victim's home. When the victim arrived home, McWhorter and Minor used these weapons to commit the killing. Then they gathered some of the victim's belongings, loaded them into the victim's pickup truck, and drove the truck to a previously agreed upon meeting place. There, they divided the property stolen from the victim. McWhorter took his portion of the weapons and the victim's other property and hid that property and the weapons at the home of a friend. On February 19, 1993, the day after the crime, McWhorter gave a voluntary unsworn statement to Detective James Maze of the Albertville Police Department. Because McWhorter's claim that he was entitled to a charge on a lesser included offense is premised on his claim that at the time of the killing he was not aware of what he was doing, we quote his statement in its entirety: McWhorter's statement is riddled with internal inconsistencies. While at the outset McWhorter claims a lack of memory, on account of intoxication, and even denies being at the victim's house on the night of the crime, he then furnishes detailed information about how the crime was committed. In his statement, McWhorter admitted that he had made the silencers for the two guns, and he was able to describe in detail what he used to make the silencers. When asked who fired the guns, McWhorter stated that he could not recall who fired the guns because he was drunk, but then was able to recall exactly what kind of guns they took from the victim's home. McWhorter also stated that he shot the victim in the leg. He knew which gun he held while he and Minor were waiting for the victim to arrive home, and he described in detail the sequence of events that transpired when the victim entered *339 his home. He remembered test-firing the guns, dividing and disposing of the victim's property, removing the stereo from the victim's truck, and where Marcus Carter dropped him off after the crime. His action on the night of the crime is wholly inconsistent with his self-serving statements suggesting he had a diminished capacity. McWhorter argues that he was extremely intoxicated before, during, and after the crime. At the preliminary hearing, Detective Maze testified that Abraham Barnes had told him that McWhorter had tried to commit suicide the night after the killing by taking some pills and drinking some alcohol. According to Barnes, McWhorter had been taken to a hospital several hours after the killing, after, Barnes said, he had attempted to commit suicide by ingesting pills and alcohol. However, other than his statement, McWhorter does not point to any evidence indicating he was intoxicated at the time of the commission of the crime. Carter, who drove Minor and McWhorter to the victim's house and who met them later in the evening, testified that he saw no indication that McWhorter had been drinking alcohol either before or after the crime and that McWhorter was not intoxicated on that night. Carter testified that, after the crime, when he met Minor and McWhorter at the designated place, McWhorter did not appear to have been drinking. McWhorter's statements to others on the night of the crime indicate that he was aware of his actions. Barnes testified that, on the night of the crime, McWhorter told him that he unloaded a clip into the victim and that he and Minor stole the victim's truck. Detective Maze testified that at noon the next day, when the statement was given, McWhorter did not appear to be under the influence of drugs or alcohol, even though McWhorter said he had been admitted to a hospital for an alcohol and drug overdose. No evidence in the record establishes when McWhorter ingested the alcohol that led to his hospitalization. The only evidence indicating McWhorter was intoxicated was McWhorter's own statement to the police. The trial court found that evidence insufficient to warrant giving instructions on lesser included offenses. McWhorter argues that the trial court erred in refusing to give a manslaughter instruction. An instruction on manslaughter would have been incompatible with McWhorter's defense. At trial, McWhorter did not argue that he was under the influence of alcohol or drugs at the time of the crime, and he did not request a voluntary-manslaughter instruction. Had an instruction been requested that would have conflicted with defense strategy, there is no error in the trial court's failure to give the instruction. Bush v. State, 695 So. 2d 70, 113 (Ala.Crim. App.1995). See, also, Sockwell v. State, 675 So. 2d 4, 25 (Ala.Crim.App.1993); Gurley v. State, 639 So. 2d 557 (Ala.Crim.App. 1993). The Court of Criminal Appeals concluded that the trial court correctly refused to give the charge because, it concluded, the evidence suggested no reasonable theory that would support a manslaughter charge.[2] McWhorter also argues that the trial court should have charged the jury on *340 felony murder and intentional murder. He makes a two-pronged argument. First, he contends that the evidence supports a felony-murder theory because, he argues, he was a teenager and a jury could have reasonably concluded that, even if there was discussion of killing, he did not seriously believe that the victim would be killed. He argues that his statement supports the theory that Minor killed the victim and that McWhorter was only an accomplice. McWhorter argues that he has presented evidence that supports a felony-murder theory. He states that he intended only to rob the victim, not to kill him, and that he never thought the victim would be killed. Second, he contends that his evidence of intoxication justified a charge on the lesser included offenses of felony murder and intentional murder. Putting to one side for the moment the issue of intoxication, we see no reasonable theory that would have supported a charge on felony murder. The evidence showed that Casey McWhorter, Lee Williams, and Daniel Minor carefully planned and carried out the crime. They had planned the crime at least three weeks before they carried it out. In addition, McWhorter and Minor lay in wait for hours at the victim's house and made silencers for the weapons while they waited for him to arrive home. In addition, again putting to one side for the moment the issue of intoxication, we see no reasonable theory that would support a charge on the lesser included offense of intentional murder. As the Court of Criminal Appeals held, the evidence would support no theory on which the jury could have found an intentional murder but not a robbery. That court noted that McWhorter made no argument as to why the trial court should have charged the jury on intentional murder. Lee Williams had told McWhorter that the victim would have cashed his paycheck that day and therefore would have a large sum of money on his person and that, if McWhorter would kill him, McWhorter could have the money. In his statement, McWhorter said that Lee Williams told him that his father kept money on him at all times and that McWhorter and Minor could take the money for killing his father. In Ex parte Myers, 699 So. 2d 1285, 1290-91 (Ala.1997), the defendant argued that the trial court erred in not instructing the jury on the lesser included offense of felony murder because, he argued, the evidence showed that he intended to rob, not to kill, the victim. This Court held that the defendant was not entitled to a felony-murder instruction because he did not present any evidence indicating that he did not intend to kill the victim. Similarly, McWhorter presented no evidence indicating that he did not intend to kill the victim. In fact, there was testimony indicating that McWhorter had agreed to kill the victim in exchange for any money the victim would have on his person that night. The evidence shows that McWhorter intentionally and consciously planned to rob and murder the victim. Therefore, McWhorter was not entitled to an instruction on felony murder, and the trial court did not err in refusing to give such an instruction, unless to refuse it was error in light of the issue of intoxication. While voluntary intoxication is not a defense to a criminal charge, it can negate the specific intent necessary for an intentional murder, reducing the offense to manslaughter. McConnico v. State, 551 So. 2d 424 (Ala.Crim.App.1988). Relying on Owen v. State, 611 So. 2d 1126 (Ala. *341 Crim.App.1992), for the proposition that a trial court commits reversible error by failing to instruct a jury on intoxication, McWhorter argues that if the crime involves specific intent and any evidence presented at trial indicates that the defendant was intoxicated at the time of the crime, then the defendant is entitled to have the jury instructed on the lesser included crime of manslaughter. Smith v. State, 756 So. 2d 892, 906 (Ala. Crim.App.1997) (on return to remand). This Court, likewise, has held that the intoxication necessary to negate specific intent and, thus, reduce the charge, must amount to insanity. Ex parte Bankhead, 585 So. 2d 112, 120-21 (Ala.1991). See, also, Crosslin v. State, 446 So. 2d 675 (Ala. Crim.App.1983). McWhorter argues that his case is similar to Ashley v. State, 651 So. 2d 1096 (Ala.Crim.App.1994). In Ashley, the Court of Criminal Appeals reversed a capital-murder conviction because the trial court had erred in refusing to give a manslaughter instruction after a witness testified that the defendant was intoxicated at the time of the crime. Ashley's ex-girlfriend testified that she had seen him at a bar approximately two hours before the stabbing and that he "looked like he was out of it" and "looked like he was on drugs." 651 So. 2d at 1098. Another witness testified that Ashley looked "high" on the evening of the stabbing. Id. This case is distinguishable from Ashley. McWhorter did not produce testimony regarding his alleged intoxication. In fact, his voluntary unsworn statement was the only evidence presented at trial regarding his intoxication. Although the trial court informed the jury that it could not convict McWhorter of capital murder if it found no specific intent, the evidence showed that the crime was carefully planned and carried out. The Court of Criminal Appeals correctly compared this case to Hutcherson v. State. The court stated: 781 So. 2d at 267. "`[A] defendant is entitled to a charge on a lesser included offense if there is any reasonable theory from the evidence that would support the position,'" Fletcher v. State, 621 So. 2d 1010, 1019 (Ala.Crim. App.1993) (quoting Ex parte Oliver, 518 So. 2d 705, 706 (Ala.1987)), regardless of how "weak ... or doubtful in credibility" the evidence concerning the offense. Chavers v. State, 361 So. 2d 1106, 1107 (Ala.1978). A trial court should give a charge on voluntary intoxication "if `there is an evidentiary foundation in the record sufficient for the jury to entertain a reasonable doubt on the element of intent.'" Windsor v. State, 683 So. 2d 1027, 1037 (Ala. Crim.App.1994) (quoting Coon v. State, 494 So. 2d 184, 187 (Ala.Crim.App.1986)). In Windsor, the Court of Criminal Appeals found that there was no evidence that the appellant was intoxicated and that, although there was evidence that he had been drinking alcohol on the day of the murder, there was no evidence as to the quantity of alcohol consumed that day by the time of the murder. 683 So. 2d at 1037. The court found that "[t]here was no `reasonable theory' to support an instruction on intoxication because there was no evidence of intoxication." Id. The court held that the trial court did not err in not instructing the jury on intoxication and manslaughter, because there was no evidence indicating that the defendant was intoxicated when the crime occurred. The evidence offered by McWhorter as to his alleged intoxication was glaringly inconsistent with his own statement giving detailed descriptions of the events occurring at the crime scene. No evidence substantiated his claim to have been intoxicated at the time of the killing, and, indeed, the other evidence as to his condition at the time of the crime was totally consistent with the proposition that he was sober. We hold that McWhorter's self-serving statements suggesting he was intoxicated at the time of the killing, statements made in his internally inconsistent interview by Detective Maze, is, as a matter of law, insufficient to satisfy the rigorous standard of showing that the intoxication relied upon to negate the specific intent required for a murder conviction amounted to insanity. As previously noted, that standard is that "the *343 intoxication necessary to negate specific intent and, thus, reduce the charge, must amount to insanity." Ex parte Bankhead, 585 So. 2d 112, 121 (Ala.1991). Although the trial court refused to charge the jury on lesser included offenses, it charged the jury on voluntary intoxication. The trial court stated: Because there was no substantial evidence indicating that at the time of the crime McWhorter was intoxicated to such a degree that the intoxication amounted to insanity, the trial court's voluntary-intoxication charge was neither prejudicial nor necessary. The Court of Criminal Appeals held that no reasonable theory would have supported a charge on the offense of intentional murder or felony murder. It found that the evidence presented at trial indicated either that McWhorter intentionally killed the victim in the course of a robbery or that he was not guilty. We hold that the trial court's failure to instruct the jury on felony murder and intentional murder was not error. McWhorter argues that his sentence is not proportionate to the sentences imposed on the others involved in the crime. He argues that, because he was 18 years old at the time of the crime and had no prior arrests and because none of the other persons involved in the crime received the death penalty, his death sentence was not proportionate to the sentences imposed on the others. McWhorter argues that there is no explanation for the apparent disparity in sentencing and that the imposition of his sentence violates his rights to due process, to a fair trial, and to a proportionate sentence, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Because McWhorter did not in the trial object to the sentence on the basis that it was disproportionate, this Court has reviewed this issue by the plain-error standard. We recently addressed proportionality of sentences in Ex parte Burgess, [Ms. 1980810, July 21, 2000] ___ So.2d ___ (Ala.2000) (opinion on application for rehearing). In that case, the defendant Burgess, Demetrius Stevenson, and Richie Jones were all in Kevin Gardner's automobile at the time of the robbery-murder. Both Stevenson and Jones admitted that they had participated with Burgess in the discussion regarding the plan to steal a car or a car stereo, and they admitted that they were in the car when Gardner was killed. Stevenson, Jones, and three other men all drove to Birmingham with Burgess to attempt to sell Gardner's stolen car. Burgess was the only one charged in the capital crime. The two men who were with Burgess when Gardner was killed and the three men who joined the others in attempting to sell the automobile all received immunity from prosecution. At Burgess's trial, the court overrode the jury's recommendation of life imprisonment without parole and sentenced him to death. In reversing Burgess's death sentence, we held that the trial court should have given greater weight than it did to the fact that all other participants in the crime received complete immunity from prosecution. McWhorter's case is distinguishable from Burgess. After McWhorter was convicted and sentenced, Daniel Minor and Lee Williams, who at the time of the crime *344 had been 16 years old and 15 years old, respectively, each pleaded guilty to murder and received a sentence of life imprisonment. Minor participated in the killing, while Williams, the victim's son, participated in planning the killing. While Marcus Carter was not charged, he was not involved in planning the crime and was not involved in the actual killing. The law does not require that each person involved in a crime receive the same sentence. Wright v. State, 494 So. 2d 726, 739 (Ala.Crim.App.1985) (quoting Williams v. Illinois, 399 U.S. 235, 243, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970)). Appellate courts should "examine the penalty imposed upon the defendant in relation to that imposed upon his accomplices, if any." Beck v. State, 396 So. 2d 645, 664 (Ala. 1980). However, the sentences received by codefendants are not controlling per se, Hamm v. State, 564 So. 2d 453, 464 (Ala. Crim.App.1989), and this Court has not required or directed that every person implicated in a crime receive the same punishment. Williams v. State, 461 So. 2d 834, 849 (Ala.Crim.App.1983), rev'd on other grounds, 461 So. 2d 852 (Ala.1984). "`There is not a simplistic rule that a codefendant may not be sentenced to death when another co-defendant receives a lesser sentence.'" Id. (quoting Collins v. State, 243 Ga. 291, 253 S.E.2d 729 (1979)). The trial court considered McWhorter's age and lack of criminal history as mitigating circumstances. However, McWhorter's pivotal role as the "triggerman" in the crime distinguishes his involvement in the capital offense from the involvement of Minor and Williams. McWhorter told Abraham Barnes that he unloaded a clip on the victim when Minor was unable to kill the victim. Despite McWhorter's age, the lesser sentences imposed on Minor and Williams, and the fact that Carter was not prosecuted, we conclude that McWhorter's sentence was not disproportionate. We have carefully reviewed all the issues presented in McWhorter's petition, in the parties' briefs, and at oral argument. We find no error, in either the guilt phase or the penalty phase of McWhorter'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, BROWN, and ENGLAND, JJ., concur. COOK and JOHNSTONE, JJ., concur in part and concur in the result in part. SEE, J., concurs in the result. COOK, Justice (concurring in part and concurring in the result in part). I concur in the main opinion in part and join Justice Johnstone in his discussion of issues XXVI and XXVII. JOHNSTONE, Justice (concurring in part and concurring in the result in part). I concur in the main opinion in all respects except its statement that the Court of Criminal Appeals correctly resolved all 29 issues. While I concur in the result of the resolution of issues by the Court of Criminal Appeals, I write to express some reservations about its rationale on some of the issues. Discussing issue number XXVI, the Court of Criminal Appeals, 781 So. 2d at 324, quotes with approval language from the decision of Jenkins v. State, 627 So. 2d 1034, 1045 (Ala.Crim.App.1992), aff'd, 627 *345 So. 2d 1054 (Ala.1993), as follows: "Perpetrators of crimes that result in gruesome scenes have reason to expect that photographs of those gruesome scenes will be taken and admitted into evidence." This Court recently disapproved similar language. Ex parte Samra, 771 So. 2d 1122, 1122 n. 1 (Ala.2000). At trial, this not-then-yet-convicted defendant objected to certain gruesome photographs on the ground that they were unduly prejudicial. The purpose of such an objection is to avoid an unfair conviction resulting from undue prejudice. In analyzing this objection by quoting the language from Jenkins v. State, the Court of Criminal Appeals commits the fallacy of begging the question that is, assuming the very proposition to be provedby branding the objecting defendant as the perpetrator of the crime at a time in the trial preceding his conviction in order to justify the admission of the photographs to prove his guilt. Issue number XXVII in the opinion by the Court of Criminal Appeals is the defendant's contention that "the capital sentencing statute in Alabama is unconstitutional because it does not specify the weight the judge should give the jury recommendation in [the judge's] consideration of a sentence." 781 So. 2d at 324. The defendant challenges the statute not only on the ground of the Eighth Amendment to the United States Constitution, but also on the ground of the Fourteenth Amendment to the United States Constitution, which guarantees both due process of law and equal protection of the laws. The Court of Criminal Appeals states that "this issue has been addressed and rejected by the appellate courts of Alabama, based on the United States Supreme Court's decision in Harris v. Alabama, 513 U.S. 504, 115 S. Ct. 1031, 130 L. Ed. 2d 1004 (1995)." 781 So. 2d at 324. While Harris does hold that Alabama's capital sentencing statute does not violate the Eighth Amendment, Harris does not hold that the statute does not violate the Equal Protection Clause or the Due Process Clause. Indeed, after describing the disparate weights ascribed by different Alabama circuit court judges to jury recommendations of the death penalty, the Harris Court expressly observes that Harris did not challenge the statute on equal protection grounds. Harris, 513 U.S. at 514, 115 S. Ct. 1031. While Justice Stevens's dissent in Harris contends that the Alabama statute violates both the Eighth Amendment and the Due Process Clause, the majority does not mention any due process issue at all. The absence of any specification of the weight to be ascribed to a jury recommendation of the penalty in a capital case and the consequent disparate weights ascribed by different Alabama circuit judges to jury recommendations may well violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Presently in Alabama, however, this issue would seem critical only in the case of a trial judge's imposing a sentence different from that recommended by the jury because the Alabama statute does not require the judge to accord any degree of deference to the jury recommendation. A defendant could hardly contend that Alabama's statute requires too much deference, as it requires none. In the case before us, the jury recommended death and the trial judge imposed death. The defendant does not argue, and no aspect of the sentencing order suggests, that the trial judge was unduly constrained by the jury recommendation. Finally, I do not necessarily agree with the rationale of the Court of Criminal Appeals in its discussion of issue number II of its opinion regarding the trial judge's excusal of a veniremember or in its discussion of issue number IX regarding the *346 failure of the trial judge to charge the jury on its duty to assess the voluntariness of the defendant's statement and on the alternative ramifications of such an assessment. [1] Because the petition in this case was filed before the effective date of the revised version of Rule 39, Ala.R.App.P., May 19, 2000, we have searched the record in this case for plain error. [2] Under these circumstances, we conclude that, under the plain-error doctrine, the trial court's failure to give a voluntary-manslaughter instruction was not error. See Williams v. State, [Ms. CR-98-1734, Dec. 10, 1999] ___ So.2d ___ (Ala.Crim.App.1999).

August 11, 2000

27f50cfe-359a-4b1a-8427-515f9e7f2370

Ex Parte Elliott

782 So. 2d 308

1982263

Alabama

Alabama Supreme Court

782 So. 2d 308 (2000) Ex parte Stephen ELLIOTT. (Re Patricia Elliott v. Stephen Elliott.) 1982263. Supreme Court of Alabama. July 21, 2000. *309 Jonathan E. Lyerly, Birmingham, for petitioner. L. Stephen Wright, Jr., John C. Falkenberry, and Jesse P. Evans III of Najjar Denaburg, P.C., Birmingham, for respondent. SEE, Justice. Patricia Elliott (the "wife") sued for a divorce from Stephen Elliott (the "husband"). The Jefferson Circuit Court granted the divorce, and, among other things, divided the marital property and awarded the husband $500 a month in periodic alimony. The Court of Civil Appeals, among other things, reversed the trial court's division of marital property and its award of alimony, holding that the trial court had abused its discretion with respect to these issues. Elliott v. Elliott, 782 So. 2d 303 (Ala.Civ.App.1999). We reverse and remand. The husband and the wife married in September 1973. Their marriage produced three children: two sons, one born in January 1980 and one born in December 1980; and one daughter, born in February 1983. In December 1996, the wife sued for a divorce, alleging incompatibility and an irretrievable breakdown of the marriage as grounds for a divorce. The husband counterclaimed, also alleging an incompatibility of temperament and an irretrievable breakdown of the marriage as grounds for a divorce. There were no allegations of, or evidence of, misconduct on the part of either party that might have led to the divorce action. The evidence presented to the circuit court indicated that at the time of the trial the husband was 51 years of age and had several health problems. He had no college degree, had worked sporadically in the construction industry, and had an annual income of approximately $50,000. The husband's assets consisted of an automobile, on which he was making payments; $7,500 in an IRA account; and some equipment valued at between $5,000 and $7,500. The wife is a college graduate. She has been employed by Blue Cross/Blue Shield of Alabama for more than 20 years, and at the time of trial, she was earning an annual income of $106,000. The wife has a 401(k) account through her employer, with an approximate value of $169,000, and a deferred-benefit plan with an approximate value of $109,300. The wife also owns a car, on which she is making payments. The parties purchased the marital residence in 1987, and it has an appraised value of $185,000. The house secures two mortgage debts: the balance of the first-mortgage debt is approximately $100,000, and the balance of the second-mortgage debt is approximately $28,000. At the time of trial, the parties' children were 18, 17, and 15 years old, and the 18 year old was planning to attend the University of Mississippi. Two of the children have automobiles; one is titled in the husband's name, and the other is titled in the names of both the husband and the wife. After conducting an ore tenus hearing, the circuit court issued a final judgment of divorce, awarding custody of the minor children to the husband, with visitation rights to the wife, and ordering the wife to pay the husband $1,700 per month in child support and $500 per month in periodic alimony. The circuit court divided the marital property and assigned the husband and the wife responsibility for certain debts. The circuit court awarded the couple's home to the husband and assigned him the responsibility of paying the debts secured by the first and second mortgages. Additionally, the circuit court awarded the husband a one-half interest in the wife's 401(k) fund; in her 401(k) employer-matching fund; and in her deferred-benefit plan with her employer. The circuit court also awarded the wife her automobile, the funds in her checking and savings accounts, her stocks and bonds, the funds in her IRA accounts, and her personal items, including jewelry and clothing. The court ordered the husband to pay the indebtedness on his car and to pay certain credit-card debts. The wife appealed, arguing that the circuit court abused its discretion in awarding custody of the parties' children to the husband, in calculating the wife's child-support obligation, in dividing the marital property and debts, and in awarding periodic alimony to the husband. A divided Court of Civil Appeals affirmed in part, reversed in part, and remanded. See Elliott v. Elliott, supra. Specifically, the Court of Civil Appeals affirmed that part *311 of the circuit court's judgment awarding custody of the minor children to the husband and reversed those parts of the judgment awarding child support and alimony and dividing the marital property and debts. The court held that the award of child support was not supported by the evidence because, it said, there was no evidence as to the reasonable and necessary needs of the children. Thus, the court concluded that it could not "tell if the child-support award is sufficient, insufficient, or even necessary." Id. at 306. The court further held "that the [circuit] court abused its discretion in its award of alimony and its division of the marital property." Id. at 307. Because it "reversed those portions of the judgment awarding alimony and dividing the marital property, [the court] also remand[ed] those portions of the judgment dividing the marital debts so that the [circuit] court [would] have available all components in order to fashion an equitable division between the parties." Id. at 307. The husband argues that the Court of Civil Appeals erred in reversing those portions of the circuit court's judgment awarding alimony and dividing the marital property.[1] "In reviewing the [circuit] court's judgment in a divorce case presented ore tenus, we will presume the judgment to be correct...." Ex parte Jackson, 567 So. 2d 867, 868 (Ala.1990). Furthermore, rulings on such matters as child support, alimony, division of marital property, and payment of marital debts are within the discretion of the circuit court. See id. Thus, a circuit court's divorce judgment, including its rulings on these matters, will not be reversed unless it is so unsupported by the evidence that it is plainly and palpably wrong and a clear abuse of discretion. See Ex parte Smith, 673 So. 2d 420, 421 (Ala.1995); Ex parte Jackson, 567 So. 2d at 868; see also Hartselle v. Hartselle, 475 So. 2d 860, 861 (Ala. Civ.App.1985) ("The cases are legion which hold that matters in divorce cases, such as the division of property and child custody, are subjects that fall within the sound judicial discretion of the [circuit] court."). Moreover, an appellate court reviewing a circuit court's judgment in a divorce action is not to substitute its judgment of the facts for that of the circuit court. See Ex parte Smith, 673 So. 2d at 422. Instead, the appellate court is "simply to determine if there was sufficient evidence before the circuit court to support its decision against a charge of arbitrariness and abuse of discretion." Id. A court has no fixed standard to follow in awarding alimony or in dividing marital property. Rather, the award or division need only be equitable and be supported by the particular facts of the case. See Antepenko v. Antepenko, 549 So. 2d 1357, 1359 (Ala.Civ.App.1989); Hutchinson v. Hutchinson, 474 So. 2d 104, 105 (Ala.Civ.App.1985); Nowell v. Nowell, 474 So. 2d 1128, 1129-30 (Ala.Civ.App. 1985). "[T]he [circuit] court should consider several factors, including the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage."[2]Nowell, *312 474 So. 2d at 1129; accord Antepenko, 549 So. 2d at 1359 (listing the same factors, but adding another: "the parties' potential for maintaining [their] standard of living after the divorce"). Moreover, "[i]t has long been recognized in Alabama that the primary purposes of periodic alimony are: (1) to preserve the economic status of the parties that existed during the marriage; and (2) to provide support to the dependent former spouse." Kahn v. Kahn, 682 So. 2d 1377, 1380 (Ala.Civ.App.1996) (emphasis added) (citations omitted). The Court of Civil Appeals examined this issue and summarily stated: "We have reviewed the record, and, under the circumstances of this case, we conclude that the [circuit] court abused its discretion in its award of alimony and its division of marital property." Elliott, 782 So. 2d at 307. We disagree. The husband and the wife were married for 25 years. Comparing the husband's age and poor health; his lack of a college degree; his less-than-certain future-employment prospects, given his sporadic work history; his expected income of $50,000 per year; and his custody of the three children, to the wife's education, future-employment prospects, and expected income of more than $100,000 per year, we cannot say the circuit court abused its discretion in its award of periodic alimony or in its division of the marital property. Thus, we must conclude that the Court of Civil Appeals impermissibly "substitute[d] its judgment of the facts for that of the circuit court." Ex parte Smith, 673 So. 2d at 422. The Court of Civil Appeals erred in reversing the circuit court's award of alimony and its division of the marital property. Accordingly, we reverse the judgment of the Court of Civil Appeals insofar as it relates to those two items and remand the case for the Court of Civil Appeals to enter an order consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] The husband does not challenge the Court of Civil Appeals' reversal of the trial court's award of child support. The wife did not seek certiorari review of that portion of the Court of Civil Appeals' judgment affirming the trial court's award of custody. Accordingly, we express no opinion as to the judgment of the Court of Civil Appeals on these issues. [2] Although the trial court can, in appropriate situations, consider the conduct of the parties in causing the divorce, see Antepenko v. Antepenko, 549 So. 2d 1357, 1359 (Ala.Civ.App. 1989), this factor is irrelevant in this case because the parties presented no evidence suggesting that any misconduct led to the breakdown of the marriage.

July 21, 2000

34cabe71-648f-493e-a18e-919415fde216

Ex Parte Butts

775 So. 2d 173

1981166

Alabama

Alabama Supreme Court

775 So. 2d 173 (2000) Ex parte Jimmy BUTTS et al. (In re Dalton Phillips et al. v. Alabama Department of Conservation and Natural Resources et al.) 1981166. Supreme Court of Alabama. July 21, 2000. *174 Bill Pryor, atty. gen., and Raymond L. Jackson and Alice Ann Byrne, asst. attys. gen., for petitioners Department of Transportation, Jimmy Butts, Ray Bass, Douglas Kilpatrick, Terry McDuffie, Bob Campbell, and John A. Hayles. William A. Gunter, asst. atty. gen., for petitioners Department of Conservation and Natural Resources and James Martin. Michael J. Crow and Dana G. Taunton of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery; and James E. Williams of Melton, Espy, Williams & Hayes, P.C., Montgomery, for respondents. LYONS, Justice. The opinion of March 24, 2000, is withdrawn, and the following is substituted therefor. *175 Jimmy Butts, James D. Martin, Ray Bass, Douglas "Mitch" Kilpatrick, Terry McDuffie, Bob Campbell, and John A. Hayles are defendants in a wrongful-death action pending in the Montgomery Circuit Court. The plaintiffs in that action are Wendy Phillips, as the administratrix of the estate of Randall "Lane" Phillips; Ann Williams, as the administratrix of the estate of Frank "Dee" Williams; and the two deceased men's minor children, Dalton Phillips, Tanner Phillips, Haley Ann Williams, and Dee Ann Williams. The defendants petition for a writ of mandamus directing Judge Charles Price to dismiss the wrongful-death action as it relates to Martin in his official capacity, on the ground of State immunity, and as it relates to all of them in their individual capacities, on the ground of State-agent immunity. We grant the petition in part and deny it in part. The Alabama Department of Conservation and Natural Resources ("ADOC") owned a bridge over Lake Martin known as the Old Kowaliga Bridge ("the old bridge"). When a new Kowaliga Bridge was constructed to take the place of the old bridge, ADOC closed the old bridge to traffic and designated it for use as a public fishing pier. The old bridge fell into a state of disrepair, and ADOC decided to demolish it. ADOC solicited bids for the demolition project. The Alabama Department of Transportation ("ALDOT") offered the lowest bid, at $67,681; ADOC accepted that bid. ALDOT formulated a plan and assembled a crew for the demolition project. During the demolition of the old bridge, however, it collapsed prematurely. Two ALDOT employees, Randall Phillips and Frank Williams, who were working on the old bridge when it collapsed, died when pieces of the old bridge pinned them at the bottom of Lake Martin. The widows of Phillips and Williams, acting as administratrices of their husbands' estates, along with their minor children (hereinafter the widows and the minor children will be sometimes referred to collectively as "the families"), sued ADOC; ALDOT; Martin, the former director of ADOC; Butts, the former director of ALDOT; Bass, ALDOT's chief engineer; Kilpatrick, ALDOT's chief maintenance engineer; McDuffie, an assistant bridge-maintenance engineer for ALDOT; Campbell, an assistant bridge-maintenance engineer for ALDOT; and Hayles, the supervisor of the ALDOT work crew to which Phillips and Williams were assigned. Each of the individual defendants was sued in both his official capacity and his individual capacity. The families' complaint alleged (1) that Butts had negligently or wantonly authorized the use of ALDOT personnel to demolish the bridge; (2) that Martin had negligently or wantonly allowed ALDOT to use unqualified personnel to demolish the bridge; (3) that the defendants had negligently or wantonly failed to halt the demolition project after discovering that insufficient funds had been allocated to the project; (4) that the defendants had negligently or wantonly hired, trained, and/or supervised the personnel assigned to demolish the bridge; (5) that Bass had negligently or wantonly submitted ALDOT's bid for the project; (6) that Kilpatrick had negligently or wantonly developed the plan to demolish the bridge; (7) that McDuffie, Campbell, and Hayles had negligently or wantonly implemented the plan; and (8) that Kilpatrick, McDuffie, Campbell, and Hayles had negligently or wantonly assumed the duties of a "bridge and/or structural engineer," without proper qualifications for those duties. The defendants moved to dismiss the complaint, pursuant to Rule 12(b)(6), Ala. R.Civ.P., raising the defenses of sovereign and discretionary-function immunity, now referred to as "State immunity" and "State-agent immunity," respectively. See Ex parte Cranman, [Ms. 1971903, June 16, 2000] ___ So.2d ___ (Ala.2000). On November 19, 1998, the trial court entered an order granting the motion as to ADOC and ALDOT, and as to Butts, Bass, Kilpatrick, *176 McDuffie, Campbell, and Hayles in their official capacities. The trial court denied the motion "as to the Defendants in their individual capacities." On April 19, 1999, the defendants Martin, Butts, Bass, Kilpatrick, McDuffie, Campbell, and Hayles (hereinafter sometimes referred to collectively as "the employees") filed this petition for the writ of mandamus, contending that Martin is entitled to a dismissal of the families' claims made against him in his official capacity, on the ground of State immunity, and that all of them are entitled to a dismissal of the families' claims made against them in their individual capacities, on the ground of State-agent immunity. A writ of mandamus is an extraordinary remedy, and it "will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala.1993). The families argue that we should dismiss the employees' petition because, the families say, the defendants cannot show "the lack of another adequate remedy." The families contend that the employees should have petitioned for permission to appeal an interlocutory order, pursuant to Rule 5, Ala.R.App.P. Rule 5 allows a party to petition this Court for permission to appeal from an interlocutory order that "involves a controlling question of law as to which there is substantial ground for difference of opinion" and as to which "an immediate appeal... would materially advance the ultimate termination of the litigation and ... would avoid protracted and expensive litigation." The party seeking permission to appeal pursuant to Rule 5 must do so within 14 days of the entry of the order from which it wishes to appeal. Here, the employees did not seek mandamus relief until five months after the trial court had entered its order denying a dismissal of the claims they complain of here. This Court has held that a Rule 5 petition is an appropriate means by which a State agency or employee can seek appellate review of an order denying a claim of immunity. See Town of Loxley v. Coleman, 720 So. 2d 907 (Ala.1998). However, this Court also has held that a petition for a writ of mandamus is an appropriate means for seeking review of an order denying a claim of immunity. Ex parte Alabama Dep't of Forensic Sciences, 709 So. 2d 455 (Ala.1997). Therefore, the families' argument that Rule 5 provides the only means by which a claim of immunity can be reviewed is not well taken. We note that this Court has amended Rule 21, Ala.R.App.P., to provide that a petition for a writ of mandamus must be filed within a "reasonable time," and that "[t]he presumptively reasonable time for filing a petition seeking review of an order of a trial court shall be the same as the time for taking an appeal." Under the rule as amended, a petition in a case such as this must be filed within 42 days of the order as to which the petitioner seeks a review unless the party can show good cause for delaying beyond the 42 days.[1] Rule 21 as amended, however, does not become effective until September 1, 2000. Presently, there is no time limit for filing a petition for the writ of mandamus, but unreasonable delay is a ground for dismissing such a petition. Ex parte Johnson, *177 485 So. 2d 1098 (Ala.1986). Here, the employees state that their initial counsel resigned from the Alabama Attorney General's Office in December 1998 and that their present counsel did not become the lead attorney in the case until March 1, 1999. They contend that their present counsel filed the petition as soon as he could become familiar with their case. Under those circumstances, we do not consider the delay in filing the petition so unreasonable as to justify dismissing the petition. We next address Martin's argument that the trial court should have dismissed the claims made against him in his official capacity, just as it dismissed the claims made against all the other employees in their official capacities. He clearly is correct. A complaint seeking money damages against a State employee in his or her official capacity is considered a complaint against the State, and such a complaint is barred by Art. I, § 14, Alabama Constitution of 1901. Ex parte Alabama Dep't of Forensic Sciences, 709 So. 2d at 457. The wording of the trial court's order suggests that the omission of Martin's name from that portion of the order dismissing the claims against the other employees in their official capacities may have been merely an oversight. In any event, Martin is entitled to a writ of mandamus directing the trial court to enter an order dismissing the claims against him in his official capacity. We now consider the families' claims made against the employees in their individual capacities. We emphasize that this mandamus petition asks for a writ directing the circuit judge to dismiss claims against the defendants, not to enter a judgment for them on the merits. As a general rule, a motion to dismiss "`for failure to state a claim is properly granted only when it appears beyond a doubt that the plaintiff can prove no set of facts entitling him to relief.'" Patton v. Black, 646 So. 2d 8, 10 (Ala.1994) (quoting earlier cases). In Patton, this Court discussed the standard of review applicable to the dismissal of a complaint stating claims against which the defendant raised the defenses of State-agent immunity: 646 So. 2d at 10 (quoting earlier cases, including Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala.1985) (emphasis in Fontenot) (citations omitted)). In Ex parte Cranman, a plurality of this Court suggested the formulation of a new test for determining when State employees sued in their individual capacities are entitled to assert the defense of State-agent immunity: ___ So.2d at ___. We today adopt this new test suggested in Cranman. Given the question presented by this mandamus petitionwhether the employees are entitled to an order dismissing the families' claims made against them in their individual capacities, on the ground that as to those claims the families' complaint does not state against them any claim upon which relief can be granted we conclude that the employees have not shown that they have "a clear legal right... to the order sought." Ex parte United Serv. Stations, Inc., supra, 628 So. 2d at 503. At first blush, it appears that some claims, such as those regarding the use of personnel, hiring and supervising personnel, and the formulation of the demolition plan, are due to be dismissed, pursuant to the Cranman test. However, if any employee failed to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist, or acted willfully, maliciously, fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of the law, then it is possible that that employee would not be entitled to State-agent immunity. As this Court stated in Patton, "[i]t is not for this court to determine, based on the complaint, whether the plaintiff will ultimately prevail, but only if he may possibly prevail." 646 So. 2d at 10. It is conceivable that the families could prove facts that would show that one or more of the employees failed to discharge duties pursuant to a checklist or acted willfully, maliciously, fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of the law. If so, the families "may possibly prevail" on their claims. Therefore, the trial court properly denied the employees' motion to dismiss the claims stated against them in their individual capacities. After the parties have had the opportunity to conduct discovery, the employees will have the opportunity to seek a summary judgment on the ground that they are entitled to State-agent immunity. If they make such a motion based on that ground and the trial court denies it, then they can again ask this Court to review their immunity claims, either by petitioning for permission to appeal, pursuant to Rule 5, Ala.R.App.P., or by petitioning for a writ of mandamus, pursuant to Rule 21, Ala.R.App.P. We grant the petition to the extent it seeks a writ directing Judge Price to dismiss the families' claims stated against *179 Martin in his official capacity. In all other respects, we deny the petition. OPINION OF MARCH 24, 2000, WITHDRAWN; OPINION SUBSTITUTED; PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED. HOOPER, C.J., and HOUSTON, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. COOK and SEE, JJ., concur in the result. MADDOX, J., concurs in Parts I and II; and, as to Part III, concurs in the result, but dissents from the rationale. SEE, Justice (concurring in the result). For the reasons set forth in my dissenting opinion in Ex parte Cranman, [Ms. 1971903, June 16, 2000] ___ So.2d ___, ___ (Ala.2000) (See, J., dissenting), I dissent from the adoption, in this case, of the test for State-agent immunity (also referred to as discretionary-function immunity or qualified immunity) set forth in the main opinion in Ex parte Cranman. MADDOX, Justice (concurring in Parts I and II; and, as to Part III, concurring in the result, but dissenting from the rationale). I concur as to Parts I and II. Regarding Part III, I concur in the result but dissent from the rationale. The state of the record in this case is similar to the state of the record in Patton v. Black, 646 So. 2d 8 (Ala.1994). In Patton, I stated, "I was almost persuaded that the defendant was correct in her argument that [the record showed] that the plaintiff did not state any set of facts upon which relief could be granted...." 646 So. 2d at 11 (Maddox, J., concurring in the result). That is the situation I find myself in with this case; consequently, I concur in the result reached by the majority in Part III, as I did in Patton, 646 So. 2d at 10. However, because the majority adopts the formulation of the test for determining when State employees sued in their individual capacities are entitled to assert the defense of State-agent immunity, that was set out in Ex parte Cranman, [Ms. 1971903, June 16, 2000], ___ So.2d ___ (Ala.2000), I must respectfully dissent from the rationale of Part III. Therefore, as to Parts I and II, I concur; but as to Part III I concur in the result but dissent from the rationale. [1] The Committee Comments to Rule 21, as amended, state: "[W]here the petition for the writ of mandamus challenges an action of the trial court, the amended rule adopts as the presumptively reasonable time the 42-day period for appealing from a final judgment in a civil case, unless the time for appeal is shorter, pursuant to a rule or a statute (see, e.g., Rule 4(a)(1)), in which case the shorter time becomes the presumptively reasonable time."

July 21, 2000

ab469d8e-92f4-4047-b6f0-ce08a1714b2a

Southern Energy Homes, Inc. v. Nalley

777 So. 2d 99

1972228

Alabama

Alabama Supreme Court

777 So. 2d 99 (2000) SOUTHERN ENERGY HOMES, INC. v. Linda NALLEY and Don Nalley. 1972228. Supreme Court of Alabama. June 30, 2000. *100 John Martin Galese and W. Scott Simpson of John Martin Galese, P.A., Birmingham, for appellant. Philip Henry Pitts and Rickman E. Williams III of Pitts, Pitts & Thompson, Selma; and John W. Kelly III, Selma, for appellees. PER CURIAM. Southern Energy Homes, Inc., appeals from the order of the trial court denying Southern Energy's motion to compel arbitration of claims brought against it by Linda Nalley and Don Nalley. We reverse and remand. Linda and Don Nalley purchased a mobile home manufactured by Southern Energy. The Nalleys' agreements, disputes, and claims against the retailer who sold them the mobile home are not material to the issues dispositive of this appeal. The Nalleys sued both the retailer and Southern Energy. They alleged claims of breach of warranty, breach of contract, misrepresentation, and fraud. The Nalleys specifically brought claims of breach of written warranty pursuant to the Magnuson-Moss WarrantyFederal Trade Commission Improvement Act (Magnuson-Moss Act), 15 U.S.C. § 1501 et seq., against Southern Energy and the retailer. Southern Energy answered and moved to stay the action and to compel arbitration of the Nalleys' claims. In support of its motion, Southern Energy submitted a document entitled "SOUTHERN ENERGY WARRANTY LIMITED ONE-YEAR/FIVE-YEAR WARRANTY" containing the language of an arbitration agreement between the manufacturer and the purchaser. The warranty includes the following arbitration language: The Nalleys did not object to the submission of this document. Thus, the record establishes Southern Energy's prima facie case for the existence of the agreement to arbitrate. TranSouth Fin. Corp. v. Bell, 739 So. 2d 1110 (Ala.1999). Southern Energy also submitted two affidavits by Don McNutt. Only one of these affidavits is material to the contested issues. It reads, in pertinent part: The Nalleys did not submit any evidentiary material or a brief in opposition to the motion to stay and to compel arbitration at that time. On November 27, 1997, the trial court granted both the retailer's and Southern Energy's motions to compel arbitration. In May 1998, the Nalleys opposed Southern Energy's motion to compel binding arbitration. In a supporting brief, the Nalleys argued that the trial court should deny Southern Energy's motion because Southern Energy did not sign the contracts invoked by Southern Energy and because the Magnuson-Moss Act prevents the inclusion of a binding arbitration provision in a written warranty. The Nalleys cited Wilson v. Waverlee Homes, Inc., 954 F. Supp. 1530 (M.D.Ala.1997), aff'd without opinion, 127 F.3d 40 (11th Cir.1997). Approximately 14 days later, the Nalleys moved pursuant to Rule 60(b), Ala. R. Civ. P., for relief from the November 27, 1997, order. In their motion, the Nalleys asserted that, because their attorneys of record did not receive a copy of the November 27, 1997, order, they were unaware that the court had ordered them to arbitrate their claims against Southern Energy. Alternatively, the Nalleys asked the trial court to "reconsider" its November 27, 1996, order in light of the decision in Waverlee, supra, and other recent decisions. Southern Energy responded that the Nalleys were not entitled to Rule 60(b) relief from the November 27, 1996, order. Following arguments of counsel, the trial court granted the Nalleys' motion; vacated its November 27, 1996, order compelling the Nalleys to arbitrate their claims against Southern Energy; and denied Southern Energy's motion to compel arbitration. Southern Energy appealed. On appeal, Southern Energy contends that the trial court erred in vacating its November 27, 1996, order compelling the Nalleys to arbitrate their claims against Southern Energy. The Nalleys argue that we should affirm the trial court on three theories. The first theory is that the arbitration provisions in their contracts with the retailer are not broad enough to require arbitration of their claims against Southern Energy. The second theory is that they did not make an agreement to arbitrate with Southern Energy. The third theory is that the Magnuson-Moss Act invalidates the arbitration provisions in the Southern Energy warranty. We will address the Nalleys' second theory first. We find the Nalleys' second theory invalid for reasons we explained in Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131, 1134 (Ala.2000): Now, we will address the Nalleys' third theorytheir theory that the Magnuson-Moss Act invalidates the arbitration provisions in the Southern Energy warranty. We hold this theory, too, invalid for reasons explained in Ard, supra: 772 So. 2d at 1135. Because our rejection of the Nalleys' theories challenging the arbitration provisions in the Southern Energy warranty obliges us to enforce arbitration of their claims against Southern Energy, we do not address the Nalleys' first theory, asserting that the arbitration provisions in the Nalleys' contracts with the retailer do not benefit Southern Energy. "Because the record establishes the valid formation of the agreement to arbitrate, and the arbitration provisions validly and legally bind the [Nalleys], the trial court erred in denying Southern Energy's motion to compel arbitration." Ard, 772 So. 2d at 1135. Accordingly, we reverse the trial court's order denying Southern Energy's motion to compel arbitration and remand the cause to the trial court with instructions to vacate that order and to enter an order *103 granting Southern Energy's motion, staying the court proceedings, and compelling arbitration. REVERSED AND REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and MADDOX, SEE, LYONS, and BROWN, JJ., concur. HOUSTON, COOK, JOHNSTONE, and ENGLAND, JJ., dissent. COOK, Justice (dissenting). I dissent for the same reasons Justice Johnstone expressed in his dissenting opinion in Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131 (Ala.2000). JOHNSTONE, Justice (dissenting). I respectfully dissent for the reasons stated in my dissent in Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131 (Ala. 2000). ENGLAND, J., concurs.

June 30, 2000

1e292afd-4296-47cd-9639-e7904062a2af

Folmar & Associates LLP v. Holberg

776 So. 2d 112

1990328

Alabama

Alabama Supreme Court

776 So. 2d 112 (2000) FOLMAR & ASSOCIATES LLP et al. v. Pamela HOLBERG. 1990328. Supreme Court of Alabama. August 4, 2000. *113 George M. Walker and Windy Cockrell Bitzer of Hand Arendall, L.L.C., Mobile, for Folmar & Associates, LLP. Stephen E. Whitehead and E. Britton Monroe of Lloyd, Gray & Whitehead, P.C., Birmingham, for Michael Strojny and Strojny Corp. Peter F. Burns of Burns, Cunningham & Mackey, P.C., Mobile, for appellee. HOOPER, Chief Justice. This is an interlocutory appeal, pursuant to Rule 5(a), Ala.R.App .P., from the denial of the defendants' motions for a summary judgment. The trial court provided this Court a statement of two "controlling questions of law": 1) Whether the plaintiff Pamela Holberg's divorce judgment creates a "contractual" or "business" relationship that will support her claim alleging intentional interference with a business or contractual relationship; and 2) Whether the plaintiff can state a claim for money damages for conspiracy to fraudulently transfer property. We reverse the order *114 denying the defendants' summary judgment motions. Pamela Holberg and William Cagle were married on March 26, 1993, and were divorced on October 7, 1993. The divorce judgment ordered Cagle to pay Holberg, as alimony in gross, the amount of $960,000, payable monthly, at the rate of $4,000 per month, beginning November 1, 1993. The judgment of divorce also provided: The divorce judgment also obligated Cagle to maintain a $100,000 life insurance policy, with Holberg as the beneficiary. On August 12, 1995, Cagle married Regina Wrigley. On October 25, 1995, Cagle suffered a bilateral stroke, which caused him to lose the use of his arms and legs and, eventually, to lose his ability to eat. Cagle was one of three partners in Folmar & Associates ("Folmar"), a real-estate-development firm. Before he married Holberg, Cagle had begun taking "draws" or "cash-advance" loans from Folmar against his ownership interest in the partnership. These draws or advances were to be repaid by deductions from Cagle's interest in the partnership's future earnings. At the time of Cagle's stroke, he owed Folmar more than his interest in the partnership was worth; he had three unsecured loans payable to AmSouth Bank; and he had credit-card debt of approximately $100,000, all in addition to his financial obligations to Holberg. Furthermore, Cagle had allowed his life insurance policy to lapse and, after his stroke, his financial advisors could find no company that would insure him. In late 1995 or early 1996, Cagle and his wife Regina met with Jimmy Folmar, one of Cagle's partners; Harold Parkman, the attorney for the partnership; and John Gill, an independent C.P.A. adviser for the partnership. On January 22, 1996, Cagle, who was not able to sign his name, marked an "X" on a durable power of attorney prepared by Parkman in favor of Regina. The Cagles hired Michael Strojny, an agent of the Strojny Corporation (hereinafter referred to collectively as "Strojny"), as a financial adviser in January or February 1996. Cagle was generating $7,000 to $10,000 per month in uninsured costs for round-the-clock nursing care, supplies, and medications. Folmar began advancing the Cagles $20,000 per month for Cagle's living expenses. Folmar also advanced other amounts of money for the Cagles to pay credit-card indebtedness, to purchase a car, and to use for other purposes. Regina Cagle used some of the money to take vacations and to pay for cosmetic surgery. In March 1997, Folmar, after consulting with Regina Cagle and Strojny, decided to reduce the monthly advance to $11,000 per month. The first reduced payment was made in May 1997. At that point, Cagle stopped making alimony payments to Holberg. Cagle died on September 25, 1997. Between October 1995 and September 1997, Folmar had advanced $779,641.05 to the Cagles, in the form of advances against Cagle's partnership interest. Folmar recovered all of the funds it had furnished Regina by offsetting the advances against Cagle's future draws on his partnership interest. Cagle's estate was declared insolvent. Holberg sued Regina Cagle, alleging intentional infliction of emotional distress, interference with a business relationship, fraudulent transfers, breach of fiduciary duty, self-dealing, and conspiracy. Holberg later amended her complaint to add *115 Folmar, the Strojny Corporation, and Michael A. Strojny, making the same claims against them. The trial court granted the defendants' motion to dismiss Holberg's claim alleging intentional infliction of emotional distress. The trial court denied the defendants' motions for summary judgment as to the remaining claims. This Court granted Folmar and Strojny permission to appeal the denial of the motions for summary judgment, pursuant to Rule 5(a), Ala.R.App.P. The first "controlling question of law" stated by the trial court involves Holberg's claim alleging intentional interference with a business relationship. In Gross v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590 (Ala.1986), this Court announced a new rule that was broad enough to encompass both interference with business relations and interference with contractual relations. The tort of intentional interference with business or contractual relations requires: Gross, 494 So. 2d at 597. The defendants argue that the first element is not satisfied because, they contend, there is no contract or business relationship with which they could have interfered. Holberg contends that this Court has impliedly held that a judgment of divorce is a contract that can be the subject of a claim alleging intentional interference, citing Braswell v. Braswell, 574 So. 2d 790 (Ala.1991). In that case, a settlement agreement, which was incorporated into a final judgment of divorce, provided that if the husband "sold" certain shares of stock in Patterson & Wilder Construction Company, Inc., within five years of the agreement, the wife was entitled to receive ½ of the proceeds. The husband exchanged the Patterson & Wilder stock for stock in D.C. Braswell Construction Company, Inc. The parties disagreed over whether the "exchange" of stock constituted a "sale." Among the claims the wife asserted against the husband was a claim of intentional interference with a business relationship. The trial court entered a partial summary judgment in favor of the wife, holding that the term "sale" encompassed the exchange of the stock. The trial court "struck" the other portions of the wife's complaint. In Braswell, this Court upheld the trial court's holding that the term "sale" encompassed the exchange of stock. This Court then remanded the case for a trial on the merits of the wife's remaining claims, including the claim alleging intentional interference, stating that those claims were "ripe for consideration by the trial court." 574 So. 2d at 794. Holberg contends that because in Braswell this Court remanded the intentional-interference claim, a judgment of divorce must constitute a contract upon which one can base an intentional-interference claim. We disagree. This Court specifically stated in Braswell that the intentional-interference cause of action "could have accrued only after May 25, 1988, which is the date the trial court determined that Cay Braswell became a stockholder in D.C. Braswell Construction Company, Inc." 574 So. 2d at 794. Thus, the intentional-interference claim was premised on the creation of a business relationshipthe wife's ownership of stock in the companyrather than on the judgment of divorce. Holberg also cites Rabun v. Kimberly-Clark Corp., 678 F.2d 1053 (11th Cir.1982). In that case, the United States Court of Appeals for the Eleventh Circuit, concluding that a debtor-creditor relationship is a *116 contractual relationship under Georgia law, held that an intentional-interference claim may be asserted against one who incites a creditor to repossess equipment leased to the debtor. In that case, Rabun alleged that an employee of Kimberly-Clark had falsely told one of Rabun's creditors that Rabun had fled the state, with the intended consequence that the creditor would repossess the farm equipment Rabun had obtained on a rental-purchase basis from that creditor. We do not find the holding in Rabun applicable to this case. The debtor-creditor relationship in Rabun is distinguishable from the debtor-creditor relationship created by a judgment. Alabama courts have previously held that a judgment is not a contract in the strict sense of the word. Knight v. Knight, 409 So. 2d 432 (Ala.Civ.App.1982). Specifically in the context of a judgment of divorce, this Court has stated: Killen v. Akin, 519 So. 2d 926, 930 (Ala. 1988). In Knight, the Court of Civil Appeals determined that a judgment of divorce falls within the class of judgments ex delicto rather than ex contractu. In that case, the wife had pursued a garnishment pursuant to § 6-6-481, Ala.Code 1975, which permits a writ of garnishment only after a final judgment ex contractu. The Court of Civil Appeals determined that a judgment of divorce is not an ex contractu judgment, quoting Lasseter v. Lasseter, 266 Ala. 459, 461, 97 So. 2d 555, 557 (1957): "A decree for alimony and attorney's fees is not a `debt contracted' within the meaning of our Constitution and statutes and `as related to exemptions, the demand is in tort and not ex contractu.'" (Citations omitted.) This Court has never held that a judgment of divorce could be the subject of a claim of intentional interference with a contract or business relationship. In fact, that cause of action is based on the theory that "an unlawful invasion of or interference with the pursuit or progress of one's trade, profession, or business is a wrong for which an action lies." Sparks v. McCreary, 156 Ala. 382, 387, 47 So. 332, 334 (1908). When that cause of action was expanded by this Court in Gross, the Court stated that the general rule against interference with contracts or business relations "has been brought about by the recognition that rights of a party to a contract or business relation are of paramount importance in the business community and should be protected from unjustified interference by third persons." 494 So. 2d at 596. We decline to extend the cause of action for intentional interference with a contract or business relationship to reach claims of interference with a judgment of divorce. Judgments are enforceable through the courts, and other remedies are provided for circumstances in which the judgment debtor fails to satisfy the judgment. For example, § 10-8-42 and § 10-9B-703, Ala.Code 1975, provide that, on due application by the judgment creditor of a partner, the court may charge the interest of the debtor partner with payment of the unsatisfied amount of the judgment debt, with interest. Therefore, we conclude that Holberg's divorce judgment does not constitute a contractual or business relationship that will support a claim of intentional interference, under Alabama law. The trial court erred in denying the defendants' motions for summary judgment on the intentional-interference claim. The second "controlling question of law" stated by the trial court is whether *117 Holberg can maintain a claim for money damages under Alabama law pursuant to a theory of conspiracy to fraudulently transfer. Before we address that issue, we must consider whether Holberg can maintain any claim against these defendants for conspiracy to commit fraudulent transfers. The Alabama Uniform Fraudulent Transfer Act, codified at Ala.Code 1975, §§ 8-9A-1 to -12, provides that "certain transfers are void or voidable if they are made to the detriment of a creditor." Russell v. Russell, 758 So. 2d 533, 538 (Ala.1999). The plain language of the statutes applies only to conveyances "made by a debtor." See §§ 8-9A-4 and -5. "Debtor" is defined as "[a] person who is liable on a claim." § 8-9A-1(6). The defendants contend that Holberg cannot maintain a claim under the statute because, they say, neither Folmar nor Strojny is Holberg's "debtor." Rather, the defendants contend, Holberg's claim under the fraudulent-transfer statute lies against Cagle's estate. Holberg argues that this Court should give the fraudulent-transfer statute a liberal construction and apply it to her claims against the defendants. She quotes Taylor v. Peoples Fertilizer Co., 270 Ala. 243, 254, 117 So. 2d 180, 191 (1959), for the proposition that "[t]his [C]ourt has held that transactions to defeat creditors are viewed ... with disfavor and the statute therefore should receive a liberal construction." However, that case involved a conveyance of property by the debtor. A liberal construction of the fraudulent-transfer statute does not require a holding that the statute applies to transfers made by someone other than the debtor. Additionally, the Court of Civil Appeals has stated: Aucoin v. Aucoin, 727 So. 2d 824, 827 (Ala. Civ.App.1998). Even a liberal construction of the statute requires some demonstration that the debtor has put his property beyond the reach of a creditor. Holberg has cited no cases in which someone other than the debtor has been held liable under the fraudulent-transfer statute. Holberg simply argues that her claims should be valid under the statute because, she argues, Folmar was fraudulently transferring Cagle's assets to Regina; Regina was acting on behalf of Cagle when she used the power of attorney to transfer his assets into her name; and Strojny was "concocting schemes for Regina to fraudulently put Cagle's assets into her name." However, Holberg's claims are missing one essential element for a cause of action pursuant to the Alabama Uniform Fraudulent Transfer Act: The transfer of property by the debtor. The purpose of the Alabama Uniform Fraudulent Transfer Act is to prevent fraudulent transfers of property by a debtor who intends to defraud creditors by placing assets beyond their reach. The plain language of the statute makes it applicable only to transfers "made by a debtor." In previous cases involving statutory interpretation, this Court has stated: Blue Cross & Blue Shield v. Nielsen, 714 So. 2d 293, 296 (Ala.1998) (quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602 *118 So. 2d 344, 346 (Ala.1992)). This Court has also stated: DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270, 276 (Ala.1998). We have found no case in which the provisions of the Alabama Uniform Fraudulent Transfer Act, §§ 8-9A-1 to -12, have been extended to apply to transferors other than the debtor. Holberg argues that the defendants were in control of the debtor's assets and, therefore, should be held liable. Holberg also argues thatbecause the judgment debtor is deceased, the defendants have rendered his estate insolvent, and the wife of the debtor is bankruptthis Court should permit her to hold the defendants liable under the fraudulent-conveyance statute. Even if we accepted Holberg's argument that Folmar and Strojny engaged in a conspiracy to defraud her, the Alabama Uniform Fraudulent Transfer Act, by its plain language, does not apply to claims against third-party transferors. Holberg's claim under that Act should have been asserted against the debtor (Cagle) or his estate. While there may be valid policy arguments for extending the Act to apply to transferors who are in control of the debtor's assets, "it is not for the Judiciary to impose its view on the Legislature." Ex parte T.B., 698 So. 2d 127, 130 (Ala.1997). Therefore, we conclude that the trial court erred in denying the defendants' motions for a summary judgment on the fraudulent-conveyance claims. Our resolution of this issue makes it unnecessary to address the question whether a plaintiff can recover money damages pursuant to the Alabama Uniform Fraudulent Transfer Act, or whether remedies under that Act are limited to recovering the fraudulently transferred property. The trial court should have granted the defendants' motions for a summary judgment. The order denying those motions is reversed, and the cause is remanded. REVERSED AND REMANDED. MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, and ENGLAND, JJ., concur.

August 4, 2000

f2993ad8-b0d0-4f63-a82d-f265cf62d836

Miller v. Jackson Hosp. and Clinic

776 So. 2d 122

1990403

Alabama

Alabama Supreme Court

776 So. 2d 122 (2000) Roy Lee MILLER and Charles Miller v. JACKSON HOSPITAL AND CLINIC et al. 1990403. Supreme Court of Alabama. August 11, 2000. *123 Michael A. Worel, J. Stephen Legg, and David G. Wirtes, Jr., of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile, for appellants. Thomas H. Keene and Ben C. Wilson of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee Jackson Hospital and Clinic. Walter W. Bates and Scott M. Salter of Starnes & Atchison, L.L.P., Birmingham, for appellee Raghu Mukkamala, M.D., Glenn Yates, M.D., and Primary Care Internists of Montgomery. LYONS, Justice. Roy Lee Miller ("Roy Lee"), on January 14, 1997, while hospitalized at Jackson Hospital, suffered severe burns over a large portion of his body. On February 19, 1997, Roy Lee executed a durable power of attorney in favor of Charles Miller ("Charles"), his uncle. The power of attorney gave Charles, among other things, the authority to "institute, prosecute, defend, compromise, arbitrate and dispose of legal, equitable, or administrative hearings, actions, suits, attachments, arrests, distresses, or other proceedings, or otherwise engage in litigation in connection with any legal or equitable matters." On January 11, 1999, just three days before the statutory limitations period would have run on Roy Lee's personal-injury claims arising from his burns, Charles filed a medical-malpractice action captioned "Charles Miller, on behalf of Roy Lee Miller v. Jackson Hospital and Clinic, Raghu Mukkamala, M.D., Glenn Yates, M.D., and Primary Care Internists of Montgomery." The complaint alleged that negligence on the part of the defendants had caused Roy Lee's injuries. All defendants moved to dismiss or, in the alternative, for a summary judgment, on the basis that Charles, as named in the complaint, was not the real party in interest, as required by Rule 17, Ala.R.Civ.P. On August 16, 1999, after the expiration of the limitations period, Charles moved to amend the complaint by adding Roy Lee as a named plaintiff. On August 19, 1999, the trial court entered a summary judgment in favor of all defendants. The court denied Charles's motion to alter, amend, or vacate the summary judgment, ruling that Charles was not the real party in interest. The trial court determined that Charles did not have the authority to sue on behalf of Roy Lee because the power of attorney did not specifically address Charles's bringing a personal-injury tort action on behalf of Roy Lee. The trial court also held that because Charles was not the real party in interest, he did not have standing to file the action on behalf of Roy Lee and, thus, that the court had never had jurisdiction over the case. Because the limitations period had run before the complaint was amended to add Roy Lee, the court held, there was no valid complaint to which the amendment could relate back pursuant to Rule 17(a). First, we must determine whether the power of attorney executed by Roy Lee vested Charles with the authority to file a personal-injury action for the benefit of Roy Lee. Second, if it gave Charles that authority, we must decide whether Charles *124 was a real party in interest, for purposes of Rule 17(a), Ala.R.Civ.P. Third, if Charles was not a real party in interest, then we must determine whether the complaint could be amended to name Roy Lee as the real party in interest or to substitute him for Charles, subject to the provisions of Rule 17(a) allowing relation back of such an amendment. This Court will review a summary judgment de novo, and it will apply the same standard the trial court applied. Bussey v. John Deere Co., 531 So. 2d 860 (Ala.1988). A summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala.R.Civ.P. The trial court held that the power of attorney gave Charles no authority to sue on behalf of Roy Lee because, it found, the power to file a personal-injury action was not specifically stated within the powers described in the document. In support of this conclusion, the trial court cited Lamb v. Scott, 643 So. 2d 972 (Ala.1994), for the proposition that the authority granted through a power of attorney is to be strictly construed and restricted to those powers expressly granted therein. Id. at 973. The trial court reasoned that, because of its want of specificity, the power of attorney gave Charles no power to bring a personal-injury action on behalf of Roy Lee. We disagree with this conclusion and, in so doing, distinguish Lamb. In Lamb, a mother gave a durable power of attorney to her oldest daughter, authorizing the daughter to manage her affairs. A year later, the mother executed a will leaving all her property, including a farm, to her two daughters and her stepson, in equal portions. The oldest daughter, purporting to act pursuant to the power of attorney, conveyed the farm to herself and her sister, to the exclusion of her stepbrother. This Court held: "One who accepts a power of attorney covenants to use the power for the sole benefit of the one conferring the power and to use it in a manner consistent with the purposes of the agency relationship created by the power of attorney." Lamb, 643 So. 2d at 974. "The principal-agency relationship is fiduciary in nature and imposes upon the agent a duty of loyalty, good faith, and fair dealing." Sevigny v. New South Fed. Sav. & Loan Ass'n, 586 So. 2d 884, 887 (Ala. 1991). In Myers v. Ellison, 249 Ala. 367, 369, 31 So. 2d 353, 355 (1947), this Court stated: (Citations omitted.) The situation presented by Lamb involved self-dealing. This Court held that in order to act against the intent of the donee as expressed in her will, the attorney-in-fact had to have the express authority to do so. 643 So. 2d at 973. In other words, this present case is distinguishable from Lamb. The power of attorney in Lamb made no express grant of authority to engage in self-dealing, and the self-dealing appeared to go against the true intent of the donee. See, also, Hall v. Cosby, 288 Ala. 191, 258 So. 2d 897 (1972), and Dillard v. Gill, 231 Ala. 662, 166 So. *125 430 (1936) (holding that authority to self-deal must be specifically granted). Roy Lee vested Charles with the authority to "institute, prosecute, defend, compromise, arbitrate and dispose of legal, equitable, or administrative hearings, actions, suits, attachments, arrests, distresses, or other proceedings, or otherwise engage in litigation in connection with any legal or equitable matters." (Emphasis added.) Charles's exercise of the power by filing an action for the benefit of Roy Lee did not involve self-dealing. To force the donor to predict the future and to list every cause of action or legal proceeding that might become necessary in the months or years after the execution of the power of attorney, even in instances where there is no self-dealing, lest a court later hold the power of attorney ineffective, would frustrate the donor's purpose in executing the instrument. We decline the defendants' request to impose the requirement of specificity even in instances where there has been no self-dealing. To do so would unnecessarily inhibit the utility of a durable power of attorney. The defendants also contend that § 26-1-2, Ala.Code 1975, gives the attorney-in-fact only the power to bring actions after the donor becomes incapacitated or incompetent, and they point to the absence of evidence of incompetence. While § 26-1-2 permits a durable power of attorney to survive incompetency of the donor, the statute provides no basis for a conclusion that all such powers of attorney are dormant until the donor becomes incompetent. Section 26-1-2(a) recites the operative language necessary and offers two choices. One option simply states that the power is unaffected by subsequent incompetence of the donor, while the other option provides that the power shall not become effective until the donor becomes incompetent. The language used by Roy Lee is of the former category, and that language suggests the power was to be effective immediately. The absence of evidence indicating Roy Lee is incompetent is inconsequential. The trial court, in entering the summary judgment, held that "one cannot assign a personal injury action to another or appoint an agent or attorney-in-fact to bring a personal injury lawsuit on his behalf." To the extent that statement deals with an assignment of the right to recover for a purely personal tort, it correctly expresses the general rule. See Lowe v. Fulford, 442 So. 2d 29, 32 (Ala.1983) ("`It is... well settled that, in the absence of statutory provision, rights of action for torts purely personal do not survive, and are not assignable.'") (quoting Holt v. Stollenwerck, 174 Ala. 213, 215, 56 So. 912 (1911)). However, Roy Lee did not attempt to transfer or assign his rights in this action to Charles. Charles, acting as attorney-in-fact, brought this action for the benefit of Roy Lee, and not in his individual capacity to assert rights on his own behalf, as would be the case with an assignee. Rule 17(a), Ala.R.Civ.P., provides, in pertinent part: Roy Lee and Charles argue that even if Charles should not have commenced the action on behalf of Roy Lee, the trial court should have allowed Roy Lee to be substituted as the real party in interest. Rule 17(a) provides: (Emphasis added.) The defendants argue that this provision of Rule 17 does not apply in cases such as this one, where the limitations period ran before the motion to amend or substitute was filed. They argue that because the original plaintiff was not the real party in interest he never had standing to sue and, as a result, the jurisdiction of the court to adjudicate Roy Lee's claims was never invoked. Thus, they say, there was properly pending before the trial court no complaint to the filing of which an amendment could relate back. In support of this argument, the defendants cite State v. Property at 2018 Rainbow Drive known as Oasis, 740 So. 2d 1025 (Ala.1999). We find this case distinguishable from 2018 Rainbow Drive. In that case, the City of Gadsden filed a complaint seeking condemnation and forfeiture of property located within the boundaries of the City, on grounds that it was connected to drug trafficking. Id. at 1026. The trial court dismissed the action, concluding that the City had no authority to bring such an action under a condemnation statute that vested the right to sue exclusively in the State. Id. at 1027. This Court refused to permit relation back of an amendment substituting the State for the City. Id. at 1029. However, 2018 Rainbow Drive dealt with a situation where the party that commenced the action, the City, had no jural relationship with the real party in interest, the State. Here, Charles, as attorney-in-fact under a valid and immediately effective power of attorney, maintained a jural relationship with the real party in interest sufficient to invoke the court's jurisdiction to the extent necessary to allow Rule 17(a) to operate. The rationale of the United States Court of Appeals for the Second Circuit in Advanced Magnetics, Inc. v. Bayfront Partners, Inc., supra, 106 F.3d 11, applying the comparable Rule 17(a), Fed.R.Civ.P., in a similar situation, is highly persuasive. Advanced Magnetics, Inc. ("AMI"), purporting to represent not only AMI but also several individual shareholders who had assigned AMI their right to sue, sued Bayfront Partners, Inc. ("Bayfront"), alleging violations of federal securities laws in connection with a public offering. Id. at 11. Bayfront moved to dismiss all claims brought by AMI in its capacity as assignee. Id. AMI subsequently moved to amend the complaint to add as plaintiffs the individual shareholders. Id. The district court determined that because the assignment agreements allowed the individual shareholders to retain certain rights, the agreements were not assignments, but merely powers of attorney, which, it held, do "not enable the grantee *127 to bring suit in his own name." Id. at 18. Based on this determination, the district court granted the defendant's motion and dismissed the shareholders' claims. Id. at 11. It also denied AMI's motion to amend because, it held, the amendment would be futile because, in the opinion of the district court, the amended complaint would be barred by the statute of limitations. Id. at 13. The Second Circuit disagreed and held that the motion to amend should have been "freely allowed," and, with regard to the running of the limitations period, it quoted an earlier case from the Seventh Circuit: Advanced Magnetics, 106 F.3d at 19 (quoting Staren v. American Nat'l Bank & Trust Co., 529 F.2d 1257, 1263 (7th Cir. 1976)). Furthermore, the court in Advanced Magnetics determined that while the "defendants' challenge to the original complaint was styled a motion to dismiss for lack of standing, their unspoken premise was that AMI lacked standing because the selling shareholders remained, with respect to their own claims, the real parties in interest." Id. at 20. The court quoted Federal Rule 17(a) and stated: Id. at 20 (citations omitted). Finally, the court in Advanced Magnetics held that because the original complaint adequately identified the parties and explained the claims made against the defendants, and because there was no evidence that AMI's failure to name the proper parties was deliberate, the trial court, acting under Rule 17(a), should have granted leave to file the amended complaint substituting the shareholders as plaintiffs. Id. It also expressly held that "[t]hose claims will relate back to the date of the original complaint," pursuant to Rule 17, despite the fact that the limitations period had run. Id. at 21. This case presents facts almost identical to those presented in Advanced Magnetics. When Charles filed his complaint "on behalf of Roy Lee, he did so under the mistaken belief that, pursuant to the durable power of attorney, he could, in his own name, file an action on behalf of Roy Lee. The complaint specifically named Roy Lee as the party claiming to have been injured as a result of the defendants' alleged negligent acts, and no one presented evidence to indicate that Charles's filing in the wrong name was deliberate. We therefore hold that the trial court erred in not granting the motion to amend so as to substitute Roy Lee as the real party in interest under Rule 17. The summary judgment in favor of all defendants is reversed, and the case is remanded for further proceedings, with Roy Lee substituted as plaintiff. The substitution shall relate back to the date the action was commenced. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX and JOHNSTONE, JJ., concur. COOK, J., concurs in the result.

August 11, 2000

0fc7b6a8-f74d-409d-be48-16271f6073a5

Southern Energy Homes, Inc. v. Davis

776 So. 2d 770

1971974

Alabama

Alabama Supreme Court

776 So. 2d 770 (2000) SOUTHERN ENERGY HOMES, INC. v. Delores DAVIS, Dorothy Davis, and Darrell Davis. 1971974. Supreme Court of Alabama. June 30, 2000. John Martin Galese, David A. Norris, and Freddie N. Harrington, Jr., of John Martin Galese, P.A., Birmingham. Brief in support of application for rehearing filed by John Martin Galese, Jeffrey L. Ingram, and David A. Norris of Galese & Ingram, P.C., Birmingham, for appellant. Bob E. Allen, Millbrook, for appellees. *771 David L. Selby II of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; and Gregory S. Ritchey of Ritchey & Ritchey, P.A., Birmingham, for amici curiae Redman Homes, Inc., Grand Manor, Inc., Homes of Legend, Inc., Champion Home Builders Co., and Chandeluer Homes, Inc., in support of application for rehearing. G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for amici curiae Gloria Brown and Phillip McCollough, in opposition to application for rehearing. PER CURIAM. The opinion of January 8, 1999, is withdrawn and the following opinion is substituted therefor. On original submission, on the authority of Southern Energy Homes. Inc. v. Lee, 732 So. 2d 994 (Ala.1999), we affirmed the trial court's order denying the motion of Southern Energy Homes, Inc., to compel arbitration of the plaintiffs' claims. In Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131, 1135 (Ala.2000), this Court overruled Lee, supra, adopted Justice See's dissent in Lee, and stated "[o]n the rationale of Justice See's dissent in Lee, we hereby hold that the Magnuson-Moss Act does not invalidate arbitration provisions in a written warranty." Delores Davis purchased for her son Darrell Davis and his wife Dorothy Davis, a mobile home manufactured by Southern Energy. The Davises sued Southern Energy and the retailer who sold the mobile home to Delores for misrepresentation and breach of express and implied warranties. The procedural and operative facts of this case are virtually identical to the procedural and operative facts in Ard, supra. The Southern Energy warranty in this case is identical to the Southern Energy warranty in Ard. The controlling issues in this appeal are the same as those in Ard. Therefore, on the authority on Ard, we reverse the trial court's order denying Southern Energy's motion to compel arbitration and remand the cause to the trial court with instructions to vacate that order and to enter an order granting Southern Energy's motion, staying the court proceedings, and compelling arbitration. The Davises' request for an attorney fee on appeal is denied. APPLICATION FOR REHEARING GRANTED; OPINION OF JANUARY 8, 1999, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and MADDOX, SEE, LYONS, and BROWN, JJ., concur. HOUSTON, COOK, JOHNSTONE, and ENGLAND, JJ., dissent. COOK, Justice (dissenting). I dissent for the same reasons Justice Johnstone expressed in his dissenting opinion in Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131 (Ala.2000). JOHNSTONE, Justice (dissenting). I respectfully dissent for the reasons stated in my dissent in Southern Energy Homes, Inc. v. Ard, 772 So. 2d 1131 (Ala. 2000). ENGLAND, J., concurs.

June 30, 2000

29b26df5-324d-4b7c-9704-70571a012a54

Ex Parte Capstone Development Corp.

779 So. 2d 1216

1982292

Alabama

Alabama Supreme Court

779 So. 2d 1216 (2000) Ex parte CAPSTONE DEVELOPMENT CORPORATION and Capstone Properties Corporation. (Re Ronald W. Johnson et al. v. Capstone Development Corporation et al.) 1982292. Supreme Court of Alabama. September 1, 2000. Roger L. Bates and Edwin O. Rogers of Hand Arendall, L.L.C., Birmingham, for petitioners. E. Glenn Waldrop, Jr., of Lightfoot, Franklin & White, L.L.C., Birmingham, for respondents. *1217 PER CURIAM. Capstone Development Corporation and Capstone Properties Corporation, defendants in a civil action pending in the Jefferson Circuit Court, petition for a writ of mandamus directing Judge Jack D. Carl, to enter an order (1) vacating the order of September 9, 1999, that denied their motion to dismiss; (2) granting their motion to dismiss; and (3) dismissing with prejudice the respondents' complaint. They contend they are entitled to a dismissal on the basis that the action is barred by the doctrine of res judicata. We deny the writ. Capstone Development Corporation and Capstone Properties Corporation (hereinafter jointly referred to as "Capstone") are corporations organized and existing under Alabama law. Capstone is the general partner of two limited partnerships organized to develop and operate university-student apartments in Tuscaloosa, Alabama (University Commons-Tuscaloosa, Ltd.), and Athens, Georgia (Capstone Commons-Athens, Ltd.). Johnson Properties Limited ("JPL") is a limited partner in University CommonsTuscaloosa, Ltd. and Capstone CommonsAthens, Ltd. Ronald W. Johnson is the general partner of JPL. On December 18, 1998, JPL filed its first action against Capstone, styled Johnson Properties Limited v. Capstone Development Corp. ("JPL I"), claiming, among other things, mismanagement and selfdealing by Capstone in its role as general partner of the partnerships. On January 22, 1999, Capstone moved to dismiss the complaint, asserting that, because the action was a derivative action involving a limited partnership, the plaintiff was required to comply with Rule 23.1, Ala. R.Civ.P. Capstone asserted that the plaintiff had failed to comply with Rule 23.1, by failing to make the necessary demand for action before filing the complaint. Capstone further asserted that the plaintiff did not meet the Rule 23.1 requirement that the plaintiff fairly and adequately represent the interests of the limited partners. On March 11, 1999, the trial court granted Capstone's motion to dismiss, noting on the case action summary: "The court finds that the claims set out in the complaint in this case are in the nature of derivative claims and that the rules pertaining to derivative actions must be followed. The motion to dismiss filed 1/22/99 is granted. Costs taxed as paid." The plaintiff in JPL I did not move to alter, amend, or vacate the judgment of dismissal, nor did it appeal. However, on May 11, 1999, another lawsuit against Capstone was filed. The second lawsuit was styled Ronald W. Johnson et al. v. Capstone Development Corporation et al. ("JPL II"). On July 23, 1999, Capstone moved to dismiss JPL II on the bases that it was barred by the doctrine of res judicata, and that it suffered the same Rule 23.1 defects that had proved fatal to JPL I. On September 9, 1999, the trial court denied Capstone's motion to dismiss, stating: "The Motion to Dismiss filed 7/23/99 is DENIED. All proceedings in this case are stayed for a period of 14 days to allow Defendants to file a mandamus petition. If no mandamus is filed within 14 days the case shall proceed routinely." On September 23, 1999, Capstone filed this petition for the writ of mandamus. The writ of mandamus is a drastic and extraordinary remedy, to be issued only when there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte Horton, 711 So. 2d 979, 983 (Ala.1998) (citing Ex parte United Serv. Stations, Inc., 628 So. 2d 501 (Ala. 1993)); Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala.1991) (citing Martin v. Loeb & Co., 349 So. 2d 9 (Ala.1977)). Moreover, "`[t]he right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief,'" and "`[t]he writ will *1218 not issue where the right in question is doubtful.'" Ex parte Bozeman, 420 So. 2d 89, 91 (Ala.1982) (quoting Ex parte Dorsey Trailers, Inc., 397 So. 2d 98, 102 (Ala. 1981)). The late Justice Bloodworth set out the elements of the doctrine of res judicata in Wheeler v. First Alabama Bank of Birmingham, 364 So. 2d 1190, 1199 (Ala.1978): (Citations omitted.) See also Green v. Wedowee Hosp., 584 So. 2d 1309, 1315 (Ala. 1991); Sanders v. First Bank of Grove Hill, 564 So. 2d 869, 872 (Ala.1990); Leverette ex rel. Gilmore v. Leverette, 479 So. 2d 1229, 1235 (Ala.1985) (all quoting Wheeler). In JPL II, the first, third, and fourth elements are present: the judgment in JPL I was rendered by a court of competent jurisdiction; the parties to JPL I were substantially identical to those in JPL II; and the cause of action presented in JPL I is presented in JPL II. However, in order to determine whether Capstone has a clear legal right to the order sought, namely, an order dismissing the complaint in JPL II, we must determine whether the trial court's dismissal of JPL I was an adjudication on the merits of that case. If so, then all four elements of the doctrine of res judicata are met. Rule 41(b), Ala.R.Civ.P., provides: The trial court's order dismissing JPL I did not specify whether the dismissal was with or without prejudice; therefore, Capstone argues, the dismissal of JPL I operated as an adjudication upon the merits of the plaintiffs' claims, for failure "to comply with these rules." We disagree. Rule 41(b) does not apply to a failure to comply with the rules that occurs before the commencement of the action, such as while the plaintiff is drafting the complaint. If it did, then an adjudication upon the merits could be achieved merely by obtaining a dismissal of a complaint for failure to comply with Rule 10(b), Ala. R.Civ.P., which requires that all averments of a claim be set forth in numbered paragraphs. Such a result is expressly condemned in the last paragraph of the Committee Comments to Rule 10. Under this rationale, we treat the dismissal of JPL I as falling under the Rule 41(b) exception for a dismissal "for lack of jurisdiction." Thus, we conclude, the dismissal of JPL I is to be treated as a dismissal without prejudice. This decision accords with the concept of "lack of jurisdiction" found in the analogous federal rule, Rule 41(b), Fed.R.Civ.P., and it is supported by the decision in Costello v. United States, 365 U.S. 265, 81 S. Ct. 534, 5 L. Ed. 2d 551 (1961). There, the Supreme Court held that Rule 41(b) was not intended to change the common-law principles of res judicata "with respect to dismissals in which the merits could not be reached for failure of the plaintiff to satisfy a precondition." 365 U.S. at 286, 81 S. Ct. 534. The Court stated: 365 U.S. at 285, 81 S. Ct. 534 (emphasis added). In Saylor v. Lindsley, 391 F.2d 965 (2d Cir.1968), the United States Court of Appeals for the Second Circuit, relying upon Costello, reversed the district court's holding that derivative claims were barred by the doctrine of res judicata where the derivative action was substantially the same as a prior complaint that had been filed on behalf of the same corporation. The earlier complaint had been dismissed for failure to comply with an order requiring a security-for-costs bond. The second action did not suffer from this defect. This view of the phrase "lack of jurisdiction" in Rule 41(b) has broad support. See 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2373 at 405 (2d ed.1994) ("[C]ourts have recognized that Rule 41(b) does not apply in situations in which a case is dismissed because of some initial bar to reaching the merits of the plaintiff's claims...."). Directly on point is Kaplan v. Bennett, 465 F. Supp. 555 (S.D.N.Y.1979), where an earlier dismissal of a shareholders' derivative action for failure to make a demand on the board of directors was held not to have a preclusive effect. Bazata v. National Ins. Co. of Washington, 400 A.2d 313 (D.C.App.1979), relied upon by Capstone, is based upon an unpersuasive minority view. Our caselaw supports the treatment we today give a dismissal based on a preaction failure to comply with a rule. In McMillon v. Hunter, 439 So. 2d 153 (Ala. 1983), this Court declined to give a preclusive effect to a prior dismissal of a thirdparty claim for failure to comply with the "occurrence test" set forth in Rule 14, Ala.R.Civ.P. Chief Justice Torbert wrote: McMillon, 439 So. 2d at 154 (emphasis added). Because the trial court's dismissal of JPL I falls within the Rule 41(b) lack-of-jurisdiction exception, the decisions in Wal Mart Stores, Inc. v. Caples, 646 So. 2d 1328 (Ala.1994), and Smith v. Union Bank & Trust Co., 653 So. 2d 933 (Ala.1995), are, on their facts, distinguishable from this case and do not warrant issuance of the writ. *1220 The complaint in JPL II complies with Rule 23.1, Ala.R.Civ.P. Therefore, Capstone's petition for the writ of mandamus is denied. WRIT DENIED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.

September 1, 2000

81c384f2-54b4-4bed-b2e4-8687f369bc51

Ex Parte Inverness Constr. Co., Inc.

775 So. 2d 153

1981698, 1981909

Alabama

Alabama Supreme Court

775 So. 2d 153 (2000) Ex parte INVERNESS CONSTRUCTION COMPANY, INC., et al. (Re Surf Side Shores Condominium Owners Association, Inc. v. Flex Membrane International, Inc., et al.) Ex parte Inverness Construction Company, Inc., et al. (Re Ocean House Condominium Owners Association, Inc. v. Flex Membrane International Corporation et al.) 1981698 and 1981909. Supreme Court of Alabama. July 14, 2000. *154 Craig W. Goolsby and Joseph H. Hilley of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Daphne, for petitioner Inverness Construction Co., Inc. C. William Daniels, Jr., of Pierce, Ledyard, Latta & Wasden, P.C., Mobile, for petitioners Henry Norris & Associates, Inc., and Samuel F. Johnson, Jr., P.E. Jeffrey L. Luther and Betsy M. Turner of Luther, Oldenburg & Rainey, P.C., Mobile, for petitioner Cable Concrete Structures, Inc. Carroll H. Sullivan and Jannea S. Rogers of Clark, Scott & Sullivan, P.C., Mobile, for petitioner Surf Side Shores, Inc. Greg D. Crosslin, Melinda K. Camp, and Daryl L. Masters of Crosslin, Slaten & O'Connor, P.C., Montgomery, for petitioner Service Supply Systems, Inc. David P. Broome, Mobile, for petitioner Milco Building Products, Inc. David F. Daniell of Daniell, Upton & Perry, P.C., Mobile, for respondents Surf Side Shores Condominium Owners Association and Ocean House Condominium Owners Association. ENGLAND, Justice. This is an arbitration dispute between on the one side, two condominium associations, and, on the other side, the defendants the developer, the general contractor, the architect, and related subcontractors. Inverness Construction Company, Inc., Surf Side Shores, Inc., Ocean House, Inc., Cable Concrete Structures, Inc., Samuel F. Johnson, Jr., P.E., Milco Building Products, Inc., Service Supply Systems, Inc., and Henry Norris and Associates, Inc., seek mandamus review of the orders of Judges Charles C. Partin and Robert Wilters in the Baldwin Circuit Court denying their motions to compel arbitration. For the reasons stated infra, we deny the petitions. On or about March 1, 1994, and July 8, 1991, the defendant Henry Norris and Associates, Inc., entered into agreements with Bill Littrell and Gordon Henderson *155 (owners of the land to be developed) to provide architectural services for developments that were to become "Ocean House, Phase I" and "Surf Side, Phase I"; both are nine-story condominiums. Those agreements were contained in a document prepared by the American Institute of Architecture, known as AIA Document B161 and entitled "Standard Form of Agreement Between Owner and Architect for Designated Services (1977 Edition)." The developers, Ocean House, Inc., and Surf Side Shores, Inc. (referred to hereafter collectively as "the developers"), entered into construction contracts with the J.W. Hartlein Construction Company, Inc. ("Hartlein"). By the terms of those contracts, Hartlein was to construct "Ocean House, Phase I" and "Surf Side, Phase I." In the interim between the construction and the filing of the present petitions for the writ of mandamus, Hartlein merged into Inverness Construction Company, Inc. Without question, the contract between Henry Norris and Associates, Inc., Bill Littrell, and Gordon Henderson, and the contracts between the developers and Hartlein contained provisions explicitly requiring the parties to these contracts to submit disputes arising under the contracts to binding arbitration. Less certain, however, is whether disputes between the parties and nonparties arising under these contracts must be submitted to arbitration, even if the nonparties are third party beneficiaries of the contracts. Ocean House Condominium Owners Association, Inc., and Surf Side Shores Condominium Owners Association, Inc. (referred to collectively as "the Associations"), filed complaints in the Baldwin Circuit Court against the architect, the general contractor, developers, and various subcontractors on December 24, 1997, and July 2, 1998 respectively. The complaints allege breach of warranties; negligence; wantonness; a violation of the Alabama Uniform Condominium Act, Ala.Code 1975, § 35-8A-101 et seq.; and breach of contract. The Associations' breach-of-contract and Uniform Condominium Act claims are based on the Associations' status as third-party beneficiaries of the contracts between the developers (Ocean House, Inc., and Surf Side Shores, Inc.), Inverness, Henry Norris and Associates, and the subcontractors. On or about March 3, 1999, Henry Norris and Associates, Inc., filed motions to compel arbitration in both cases.[1] Henry Norris and Associates alleged in its motions that the agreements between the landowners (Littrell and Henderson) and the architect, contain provisions requiring that any claims and/or disputes arising out of these contracts be submitted to arbitration. Norris contends that even though the Associations are not signatories to any of the contracts between the defendants, the Associations raised claims as third-party beneficiaries of those contracts, and, therefore, that the Associations should be equitably estopped from avoiding arbitration. The Associations filed responses to the motions to compel arbitration, contending that they were not signatories to any of the contracts and that they were not successors-in-interest to Ocean House, Inc., and Surf Side Shores, Inc., the developers. Therefore, the Associations argued, the motions to compel arbitration should be denied. The judge assigned to the Surf Side Shores case denied the motions to compel arbitration, on April 2, 1999. The trial judge assigned to the Ocean House case also denied the motions to compel arbitration, on May 25, 1999. The May 25, 1999 order stated: Inverness and Cable Concrete Structures, Inc. filed motions to "reconsider" in both cases, on June 10, 1999 and June 16, 1999, respectively. The trial court denied the motions to reconsider in the Ocean House case on June 21, 1999. It is unclear from the record when the motion to reconsider was denied in the Surf Side Shores case; however, both Inverness and Surf Side Shores Condominium Association state in their briefs that the motion to reconsider was denied. The petitioners filed these mandamus petitions on July 9, 1999, in the Surf Side Shores case and on August 3, 1999, in the Ocean House case. They seek an order requiring the trial judges to grant their motions to compel arbitration. "Mandamus is an extraordinary remedy and requires a showing that 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 Edgar, 543 So. 2d 682, 684 (Ala. 1989); Ex parte Alfab, Inc. ., 586 So. 2d 889, 891 (Ala.1991); Ex parte Johnson, 638 So. 2d 772, 773 (Ala.1994)." Ex parte Gates, 675 So. 2d 371, 374 (Ala.1996). See also Ex parte Waites, 736 So. 2d 550, 553 (Ala.1999). "It is well settled that when an appellate court reviews on appeal a trial court's denial of a motion to compel arbitration, the reviewing court applies a de novo standard of review. Crimson Industries, Inc. v. Kirkland, 736 So. 2d 597 (Ala. 1999); Patrick Home Center, Inc. v. Karr, 730 So. 2d 1171 (Ala.1999)." First American Title Ins. Corp. v. Silvernell, 744 So. 2d 883, 886 (Ala.1999). This Court has held that an appeal is the proper procedural vehicle by which to seek appellate review of a trial court's order denying a motion to compel arbitration: Dean Witter Reynolds, Inc. v. McDonald, 758 So. 2d 539, 541 (Ala.1999). See also Homes of Legend, Inc. v. McCollough, 776 So. 2d 741 (Ala.2000). The petitioners ask this Court to order the trial judge in each case to enter an order compelling the parties to arbitrate. However, "[m]andamus is an extraordinary remedy, and it is not proper where the petitioner has some other adequate remedy." Allred v. Shirley, 598 So. 2d 1347, 1348 (Ala.1992). (Citations omitted.) Inverness had an adequate remedy by appeal. Therefore, the petitions must be denied. WRITS DENIED. HOOPER, C.J., and HOUSTON, SEE, and JOHNSTONE, JJ., concur. MADDOX, COOK, and LYONS, JJ., concur in the result. [1] The remaining defendants named in the complaint filed by the Associations moved to compel arbitration and incorporated by reference the arguments advanced by Henry Norris and Associates.

July 14, 2000

3d8bab2f-15f3-4993-a254-2fb74de5fc97

Brewbaker Motors, Inc. v. Belser

776 So. 2d 110

1990034

Alabama

Alabama Supreme Court

776 So. 2d 110 (2000) BREWBAKER MOTORS, INC. v. Tanya BELSER. 1990034. Supreme Court of Alabama. August 4, 2000. *111 Cecil H. Macoy, Jr., and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; and Algert S. Agricola of Wallace, Jordan, Ratliff & Brandt, L.L.C., Montgomery, for appellant. Marc A. Starrett of Brannan & Guy, P.C., Montgomery, for appellee. ENGLAND, Justice. Tanya Belser sued Brewbaker Motors, Inc. ("Brewbaker"), seeking damages based on allegations of false imprisonment; negligence, recklessness, or wantonness; malicious prosecution; fraud; and the tort of outrage. Brewbaker filed a motion to compel arbitration, based on an arbitration agreement contained in a repair invoice Belser had signed. The trial court denied the motion. Brewbaker appeals from the order denying its motion to compel arbitration. We affirm. On October 7, 1998, Brewbaker allowed Belser to use a loaner vehicle while her vehicle was being repaired. Brewbaker subsequently reported that the loaner vehicle had been stolen. After the vehicle had been reported as stolen, Belser was stopped while driving the loaner vehicle and arrested. When the Montgomery Police Department contacted Brewbaker concerning the alleged theft, its employees initially denied knowing Belser or knowing that she had left a vehicle for repair. Belser was released from police custody after Craig Lyne, a service manager for Brewbaker, informed the police department that the vehicle had not been stolen, but had been loaned to Belser while her vehicle was being repaired. Belser testified in an affidavit that when she went to the Brewbaker office to retrieve her vehicle, Brewbaker employees told her she had to sign an invoice containing an arbitration agreement in order to obtain her vehicle. She further testified that she signed that document because she felt she had no choice not to sign it, because she had already been arrested earlier that day. In support of its motion to compel arbitration, Brewbaker relied on the arbitration provision contained in the document Belser signed on the day she had been arrested. That provision stated: After hearing arguments on the motion to compel arbitration, the trial court entered an order denying the motion. The order did not state the court's reasons for denying the motion. An appeal is the proper method for challenging a trial court's order denying a motion to compel arbitration. A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358 (Ala.1990). When an appellate court reviews a trial court's denial of a motion to compel arbitration, the reviewing court applies a de novo standard of review. First American Title Ins. Corp. v. Silvernell, 744 So. 2d 883 (Ala.1999). Brewbaker contends that Belser's claims are within the scope of the arbitration agreement. We disagree. Brewbaker argues that Belser's claims concern "the negotiations for ... service or repairs to the vehicle ... [or] other aspects of the service and repairs performed on the vehicle." Brewbaker contends that Belser's claims relate to the negotiation of the agreement to allow Belser to use a loaner vehicle while her vehicle was being repaired. When interpreting a contract, a court should give the terms of the contract their clear and plain meaning and should presume that the parties intended to do what the terms of the agreement clearly state. See Pacific Enters. Oil Co. (USA) v. Howell Petroleum Corp., 614 So. 2d 409 (Ala.1993). Moreover, any ambiguity in a contract is construed against the drafter. See Strickland v. General Motors Acceptance Corp., 578 So. 2d 1275 (Ala.1991). The arbitration agreement in this case applies to disputes "concerning any of the negotiations for and performance of service or repairs to the vehicle ... and all other aspects of the service and repairs performed on the vehicle." The record does not suggest that Belser paid a fee for using the loaner vehicle, nor does the record suggest that the parties "negotiated" for Brewbaker to give Belser a loaner vehicle as a condition to her having her vehicle repaired by Brewbaker. Rather, the record demonstrates that Belser had been using the loaner vehicle for two months before she was arrested, and that she signed the invoice containing the arbitration provision later on the same day she had been arrested. Thus, the invoice containing the arbitration provision was signed after the actions that are the basis of Belser's complaint had occurred. The agreement, by its terms, applies to service and repair on Belser's own vehicle. The claims Belser asserted based on her arrest, which occurred while she was using the loaner vehicle, are not within the scope of the arbitration agreement. Accordingly, we affirm the trial court's order denying the motion to compel arbitration. AFFIRMED. HOOPER, C.J., and HOUSTON, SEE, and BROWN, JJ., concur.

August 4, 2000

a21758b1-a72a-4f00-9f16-2e5f84f54700

Ex Parte James

780 So. 2d 693

1990550

Alabama

Alabama Supreme Court

780 So. 2d 693 (2000) Ex parte Melvin F. JAMES. (In re Melvin James v. State). 1990550. Supreme Court of Alabama. July 28, 2000. *694 Melvin F. James, petitioner, pro se. Bill Pryor, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for respondent. LYONS, Justice. Melvin F. James was convicted of theft in the first degree, in violation of § 13A-8-3, Ala.Code 1975. He was sentenced to life imprisonment as a habitual offender; was fined $5,000; and was ordered to pay $9,383 in restitution, $100 to the Crime Victims Compensation Fund, and all court costs. The Court of Criminal Appeals, on November 12, 1999, affirmed his conviction and sentence, with an unpublished memorandum. James v. State (No. CR-97-2468), ___ So.2d ___ (Ala.Crim.App.1999) (table). James sought certiorari review on the ground that the State of Alabama did not have jurisdiction to prosecute the charge against him because none of the elements of the alleged crime with which he was charged were committed within Alabama. We granted certiorari review; we now reverse James's conviction and remand the cause. On June 23, 1996, James filled out preliminary paperwork required for the purchase of a 1996 Mitsubishi Gallant automobile from the Jay Auto Group, a Georgia company that was conducting a "tent sale" in the parking lot of a Wal-Mart store in Phenix City, Alabama. James indicated on the credit application that he was a resident of the State of Georgia. Jay Auto gave James permission to take the vehicle to Georgia, that day, "subject to credit approval." The following day, Jay Auto received notice that James's credit application was denied. It subsequently contacted James and instructed him to return the vehicle to the dealership. However, James disappeared, failed to return the vehicle, and never attempted to make any payments toward its purchase. Jay Auto filed a complaint with the Phenix City Police Department, and a warrant was issued for James's arrest. Approximately four months later, James was arrested in Georgia by a Columbus police officer who had become suspicious of the Mitsubishi and had run its vehicle-identification number ("VIN") number through the National Crime Information Center ("NCIC") computer.[1] The computer indicated that the vehicle had been stolen and that there was a warrant pending for James's arrest. The officer arrested James, based upon this information. By the time of his arrest, James had driven the car approximately 14,000 miles. James alleges that the State of Alabama did not have jurisdiction over him because, he says, he committed no crime within the State of Alabamahe says that when he left Alabama to return to Georgia, he did so with Jay Auto's permission. The Court of Criminal Appeals has written the following regarding jurisdiction: Rothchild v. State, 558 So. 2d 981, 983 (Ala. Crim.App.1989). The issue before us is whether the State of Alabama had jurisdiction over James, given the facts of this case. James was charged and convicted of "theft of property in the first degree," pursuant to § 13A-8-3, Ala.Code 1975. That statute provides: According to § 13A-8-2, Ala.Code 1975, "theft of property" can be defined in one of two ways: The State indicted James based upon § 13A-8-2(1), the first definition of "theft of property," without mentioning the alternative means of theft (deception) stated in § 13A-8-2(2). James's indictment read: (Emphasis added.) Thus, according to the indictment, the State was required to prove that James exercised unauthorized control over the vehicle at issue within the State of Alabama. Whether James had the intent to deceive the dealership when he filled out the credit-approval forms is irrelevant to the charges filed against him based upon § 13A-8-2(1). In its unpublished memorandum, the Court of Criminal Appeals found James subject to punishment in Alabama because, it said, quoting a statute: "`When the commission of an offense commenced in the State of Alabama is consummated without the boundaries of the state, the offender is liable to punishment therefor in Alabama....' § 15-2-3, Ala.Code 1975; see also Heath v. State, 536 So. 2d 142 (Ala.Crim.App.1988)." Although the Court of Criminal appeals correctly quoted § 15-2-3, that statute does not apply in this case because no element of the crime charged was committed within this state. Heath v. State, cited by the Court of Criminal Appeals, is distinguishable. Heath paid his codefendants $2,000 to murder his wife. 536 So. 2d at 143. He was eventually charged with the *696 capital crime of murder during a kidnapping in the first degree, § 13A-5-40(a)(1), which is a single offense requiring three elements: (1) a kidnapping in the first degree, "or an attempt thereof"; (2) an intentional murder; and (3) that the murder was committed "during" the course of the kidnapping or attempted kidnapping. See Butler v. State, 781 So. 2d 994 (Ala. Crim.App.2000). The Court of Criminal Appeals held in Heath that, although the wife's murder was carried out in Georgia, the fact that she was kidnapped in Alabama and taken to Georgia constituted the commencement of the crime of murder during a kidnapping and provided Alabama with jurisdiction. 536 So. 2d at 143. Even more to the point, in De Graffenried v. State, 28 Ala.App. 291, 182 So. 482 (1938), the defendant procured a blank divorce form in Russell County, Alabama, and, after leaving the state, forged the name of the judge and register on the form and filed it in another state. The Court of Appeals held that the State of Alabama could not indict De Graffenried for forgery, because the offense was not committed until the names were affixed that procuring a blank form with the intent to complete it by forging signatures was not the commencement of "forgery," within the wording of the forgery statute. 28 Ala.App. at 292-93, 182 So. at 483-84. We find De Graffenried on point with the facts of this case. Jay Auto gave James permission to take the vehicle back to Georgia, "subject to credit approval." Thus, when he left Alabama with the vehicle, he did so with authorized control rather than unauthorized control. It was not until Jay Auto had told James to return the vehicle that his possession of the vehicle became unauthorized and his retention of the vehicle such as to meet the elements of theft of property. At that time, however, James was in Georgia, not Alabama. Thus, the State failed to prove that James exerted "unauthorized control" over the vehicle, within the State of Alabama, as charged in the indictment and, therefore, the State was without jurisdiction. The judgment of the Court of Criminal Appeals is reversed, because the circuit court lacked jurisdiction. The cause is remanded for the Court of Criminal Appeals to enter an order consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and HOUSTON, COOK, SEE, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. MADDOX, J., dissents. [1] The NCIC provides information on crimes committed in the various states.

July 28, 2000

1a717a40-525f-4ac4-b96a-4aff5ca9c30b

Ex Parte Hampton

815 So. 2d 569

1990577

Alabama

Alabama Supreme Court

815 So. 2d 569 (2000) Ex parte Christopher HAMPTON. (Re Christopher C. Hampton v. State). 1990577. Supreme Court of Alabama. July 21, 2000. *570 Bruce A. Gardner of Hamilton & Gardner, Huntsville, for petitioner. Submitted on petitioner's brief only. HOOPER, Chief Justice. Christopher Hampton was convicted of violating § 13A-11-200, Ala.Code 1975, which requires a convicted sex offender to register with the sheriff of the county where he or she resides. Hampton was sentenced, as a habitual offender, to 15 years' imprisonment. The trial court split the sentence and ordered Hampton to serve 3 years in prison and 5 years on probation. Hampton appealed to the Court of Criminal Appeals. That court affirmed Hampton's conviction and his sentence. Hampton v. State, 815 So. 2d 565 (Ala.Crim.App.1999). We reverse and remand. Hampton argued to the Court of Criminal Appeals (1) that the indictment against him was fatally defective because it did not allege that he had knowingly violated § 13A-11-200; (2) that the trial court did not have jurisdiction to modify the indictment to allege intent after he had filed a timely pretrial motion with regard to the fatally defective indictment; and (3) that the trial court had erred in considering previous sex-offense convictions when sentencing him as a habitual offender. The Court of Criminal Appeals rejected the first and third arguments, and, because it rejected the first one, it did not address the second one. The Court of Criminal Appeals compared the indictment with the language of § 13A-11-200, Ala.Code 1975, and determined that the indictment tracked the language of that Code section and was legally sufficient. While we agree that the language of the indictment tracks the language of § 13A-11-200, we do not agree that it was legally sufficient. The language of the original indictment was as follows: Section 13A-11-200 reads: The Court of Criminal Appeals stated that language tracking the language of the particular statute was sufficient if the statute "`prescribes with definiteness the constituents of the offense.'" Hampton v. State, 815 So. 2d at 567 (quoting Copeland v. State, 456 So. 2d 1150, 1151 (Ala.Crim.App. 1984), and Ex parte Allred, 393 So. 2d 1030, 1032 (Ala.1980)). We agree that § 13A-11-200, Ala.Code 1975, sufficiently describes the requirements of registering as a sex offender and that it makes it unlawful for a sex offender to fail to register. However, by itself, it does not adequately list all the elements of the offense for which Hampton was charged and convicted. While § 13A-11-200, Ala.Code 1975, states that failure to comply with the statute is unlawful, it does not prescribe any penalty for such a failure. Section 13A-11-203 prescribes the penalty for violating § 13A-11-200: (Emphasis added.) Hampton was sentenced in accordance with § 13A-11-203. We conclude, based upon the language of § 13A-11-200 and § 13A-11-203, that intent is an element of the offense with which Hampton was charged and that the Court of Criminal Appeals erred in holding that the original indictment against him was not fatally defective. The Court of Criminal Appeals should have addressed Hampton's second argument, that the trial court was without jurisdiction to amend the indictment to cure the defect. It is unnecessary for us to address Hampton's argument concerning the use of the Habitual Felony Offender Act to enhance his sentence. This case is remanded for proceedings consistent with this opinion. REVERSED AND REMANDED. MADDOX, HOUSTON, COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.

July 21, 2000

484009f1-6968-453e-b599-415f52763803

Ex Parte Kraatz

775 So. 2d 801

1980219

Alabama

Alabama Supreme Court

775 So. 2d 801 (2000) Ex parte Balinda Gale KRAATZ. (Re Balinda Gale Kraatz v. Benton Food Mart). 1980219. Supreme Court of Alabama. June 30, 2000. *802 Desmond V. Tobias and Michael P. Windom of Windom & Tobias, L.L.C., Mobile, for petitioner. Augustine Meaher III, Mobile, for respondent. JOHNSTONE, Justice. The petitioner-plaintiff Balinda Gale Kraatz sued the defendant Bill Benton d/b/a Benton Food Mart for injuries suffered in a trip-and-fall on his premises. Kraatz petitions us to review the decision of the Court of Civil Appeals affirming summary judgment entered by the trial court in favor of Benton. We reverse and remand. *803 Kraatz and her daughter were passengers in an automobile which stopped for gasoline at a Benton Food Mart in Mobile County. While the driver filled the gas tank, Kraatz and her daughter went inside to use the restroom. While Kraatz and her daughter were inside, the driver pulled her automobile to the side of the building to check the air pressure in one of the tires. After Kraatz purchased a snack for her daughter, they walked outside and toward the automobile to get back in it. Kraatz observed water on the sidewalk and stepped off the sidewalk. She took two or three steps across the driving and parking surface, tripped, fell, and suffered injuries in the fall. The driver returned to the Food Mart the next day, saw a black, "ragged" speed bump, and saw blood from Kraatz on the speed bump. The speed bump was not painted or marked in any way and was not visible at night from the path Kraatz was walking. The air compressor where the driver had been checking the tire was located near the place where Kraatz fell. In her deposition, Kraatz testified that the area where she stepped off the curb had no lights, except those at the bank next door, and some light from the front of the store. She stated that the area was dim. Bill Benton, the premises owner, acknowledged that the speed bump had not been painted or marked in any way. Kraatz sued Benton for negligence and wantonness in causing the injuries she sustained in her fall. Benton filed a motion for summary judgment. Following the submission of evidence and arguments of counsel, the trial court granted the motion for summary judgment on the rationale that Kraatz "walked away from the store-gas pump area with knowledge of the presence of water and into an area where she could not see where she was walking and at that point she slipped and fell." Kraatz appealed and the Court of Civil Appeals, on July 10, 1998, affirmed without opinion but with a citation to Owens v. National Sec. of Alabama, Inc., 454 So. 2d 1387 (Ala. 1984). Kraatz v. Benton Food Mart, 757 So. 2d 491 (Ala.Civ.App.1998) (table). Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Economic & Indus. Dev. Auth., 749 So. 2d 425 (Ala.1999). The court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable doubts in favor of the nonmoving party. System Dynamics Int'l, Inc. v. Boykin, 683 So. 2d 419 (Ala.1996). In reviewing a summary judgment, an appellate court, de novo, applies the same standard as the trial court. Dobbs, supra. "Generally, a patron of a business, such as a shopping center, is an invitee.... An invitor's duty to an invitee is to keep his premises in a reasonably safe condition, and, if the premises are unsafe, to warn of hidden defects and dangers that are known to it, but that are unknown or hidden to the invitee." Raspilair v. Bruno's Food Stores, Inc., 514 So. 2d 1022, 1023-24 (Ala.1987). "`[T]he owner of the premises... is not an insurer of the safety of his invitees,'" and no "`presumption of negligence aris[es] out of the mere fact of injury to an invitee.'" Ex parte Mountain Top Indoor Flea Market, Inc., 699 So. 2d 158, 161 (Ala.1997) (quoting Shaw v. City of Lipscomb, 380 So. 2d 812, 814 (Ala. 1980)). "The premises owner has no duty to warn the invitee of open and obvious defects in the premises, which the invitee is aware of or should be aware of through the exercise of reasonable care." Woodward v. Health Care Auth. of the City of Huntsville, 727 So. 2d 814, 816 (Ala.Civ. App.1998). "A condition is `obvious' if the risk is apparent to, and of the type that would be recognized by, a reasonable person in the position of the invitee." Woodward, 727 So. 2d at 816. "A condition is *804 `known' if the invitee is aware of the existence of the condition and appreciates the danger it involves." Id. "Questions of openness and obviousness of a defect or danger and of an [invitee's] knowledge are generally not to be resolved on a motion for summary judgment." Harding v. Pierce Hardy Real Estate, 628 So. 2d 461, 463, (Ala.1993). See also Woodward, supra. Additionally, "this Court has indicated that even though a defect is open and obvious, an injured invitee is not barred from recovery where the invitee, acting reasonably, did not appreciate the danger of the defect." Young v. La Quinta Inns, Inc., 682 So. 2d 402, 404 (Ala.1996). Benton relies on two total-darkness warehouse cases which are importantly distinguishable from the case before us: Owens, 454 So. 2d at 1390 ("The condition of total darkness is sufficient to put reasonable people on notice of a substantial risk of concealed hazards." (Emphasis added.)); and Ex parte Industrial Distribution Services Warehouse, Inc., 709 So. 2d 16, 19 (Ala.1997) ("Total darkness, possibly concealing an unseen and unknown hazard, presents an open and obvious danger to someone proceeding through unfamiliar surroundings, as a matter of law." (Emphasis added.)). Each of the plaintiffs in Owens and Ex parte Industrial Distribution Services Warehouse, supra, assumed a risk by walking inside a dark commercial warehouse under abnormal conditions. In haste and through expediency, Owens walked through the dark warehouse from an entrance where no light switch was available instead of going around to an entrance where he knew a light switch was available; and consequently, he tipped over "the blade of a parked forklift." Owens, 454 So. 2d at 1389. Jackson, the plaintiff in Ex parte Industrial Distribution Services Warehouse, supra, commercially undertook an emergency project in a darkened, flooded, storm-ravaged warehouse, where he fell off a loading dock. Several salient features distinguish the Kraatz case before us from Owens and Ex parte Industrial Distribution Warehouse, supra. First, Kraatz was walking in dim light, not total darkness. Partial or poor light, like that in the case before us, could mislead a reasonably prudent person into thinking that he or she would be able to see and to avoid any hazards. The variable factors which make openness-and-obviousness under partial or poor light conditions a fact question not appropriate for resolution by summary judgment are direction, level, color, diffusion, shadows, and like qualities of light, as well as the other physical features of the scene. See, e.g., Woodward, supra. Second, Kraatz was walking in the light conditions which Benton provided and expected his customers to use in walking where she fell. The light conditions were not abnormal for the time or place so as to alert Kraatz or any other invitee to a need to forgo walking there. Third, Kraatz was walking on a surface Benton provided and expected his customers to use. She had no reason to expect or to suspect an obstruction in her path. Indeed, what would have been open and obvious to Benton's customers was that the premises owner had provided both the light conditions and the surface conditions for them to use for walking, just as Kraatz was using them when she tripped and fell. In the case before us, the issues of whether Benton breached his duty to Kraatz and whether Kraatz committed contributory negligence or assumed the risk are questions for the finder of fact. Spence v. Southern Pine Elec. Coop., 643 So. 2d 970 (Ala.1994), and Bogue v. R & M Grocery, 553 So. 2d 545 (Ala.1989). Therefore, the trial court erred in entering a summary judgment in favor of Benton. Thus the judgment of the Court of Civil Appeals is reversed and the cause is remanded for that court to order further proceedings. REVERSED AND REMANDED. *805 HOOPER, C.J., and COOK, SEE, BROWN, and ENGLAND, JJ., concur. MADDOX and HOUSTON, JJ., dissent. LYONS, J., recuses himself.

June 30, 2000

fcac604f-8249-4e0a-8e9f-da60d47890e7

SouthTrust Bank v. Williams

775 So. 2d 184

1980706

Alabama

Alabama Supreme Court

775 So. 2d 184 (2000) SouthTRUST BANK, National Association v. Mark WILLIAMS and Bessie Daniels. 1980706. Supreme Court of Alabama. July 21, 2000. *185 J. Michael Druhan, Jr., and James C. Johnston of Johnston, Wilkins & Druhan, L.L.P., Mobile; and Stewart M. Cox and Matthew A. Aiken of Bradley, Arant, Rose & White, L.L.P., Birmingham, for appellant. Robert T. Cunningham, Jr., Richard T. Dorman, David G. Wirtes, Jr., and George M. Dent III of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile, for appellees. COOK, Justice. SouthTrust Bank, National Association ("SouthTrust"), appeals from an order denying its motion to compel arbitration of an action against it by checking-account customers Mark Williams and Bessie Daniels. Williams and Daniels are the named representatives in a putative class action against SouthTrust. We reverse and remand. Daniels and Williams began their relationship with SouthTrust in 1981 and 1995, respectively, by executing checking-account "signature cards." The signature card each customer signed contained a "change-in-terms" clause. Specifically, when Daniels signed her signature card, she "agree[d] to be subject to the Rules and Regulations as may now or hereafter be adopted by the Bank." (Emphasis added.) The rules and regulations referred to on the signature card were internal rules adopted by SouthTrust (hereinafter referred to as the "regulations"). The regulations in effect when Daniels signed the signature card provided: "These Rules and Regulations, or any part thereof, may be amended, altered, changed, added to or repealed, and others adopted in their place by Bank, and any such amendment, alteration, change, addition or repeal shall be binding upon all depositors as fully as though expressly assented to by them." Thereafter, SouthTrust periodically amended its regulations. In 1993, it amended the regulations by adding paragraph 15, also a change-in-terms clause. Paragraph 15 provided, in part: (Emphasis added.) The signature card Williams signed provided: (Emphasis added.) Because Williams's account was opened in 1995, it was subject to paragraph 15 of the regulations, which was added in 1993. By further amendment effective March 3, 1997, SouthTrust added paragraph 33 to the regulations. That paragraph provides, in pertinent part: (Capital letters and boldface in original.) This action, commenced on July 28, 1998, challenges SouthTrust's procedures for paying overdrafts, and alleges that SouthTrust engages in a "uniform practice of paying the largest check(s) before paying multiple smaller checks ... [in order] to generate increased service charges for [SouthTrust] at the expense of [its customers]."[1] SouthTrust filed a "motion to stay [the] lawsuit and to compel arbitration." It based its motion on paragraph 33 of the regulations. On January 7, 1999, the trial court, without making any findings of fact or stating any conclusions of law, entered an order denying SouthTrust's motion to compel arbitration. SouthTrust appeals from that order. SouthTrust insists that "`[t]his Court is required [by the Federal Arbitration Act, 9 U.S.C. § 1, et seq.], to compel arbitration if, under "ordinary state-law principles that govern the formation of contracts," the contract containing the arbitration clause is enforceable.'" Brief of Appellant, at 13 (quoting Quality Truck & *187 Auto Sales, Inc. v. Yassine, 730 So. 2d 1164, 1167 (Ala.1999)). SouthTrust further contends that it has contracts with Williams and with Daniels that contain an arbitration clause enforceable "under ordinary state-law principles." Williams and Daniels contend that SouthTrust's amendment to the regulations, adding paragraph 33, was ineffective because, they say, they did not expressly assent to the amendment. In other words, they object to submitting their claims to arbitration because, they say, when they opened their accounts, neither the regulations nor any other relevant document contained an arbitration provision. They argue that "mere failure to object to the addition of a material term cannot be construed as an acceptance of it." Brief of Appellees, at 4. They contend that South-Trust could not unilaterally insert an arbitration clause in the regulations and making it binding on depositors like them. SouthTrust, however, referring to its change-of-terms clauses, insists that it "notified" Daniels and Williams of the amendment in January 1997 by enclosing in each customer's "account statement" a complete copy of the regulations, as amended. Although it is undisputed that Daniels and Williams never affirmatively assented to these amended regulations, SouthTrust contends that their assent was evidenced by their failure to close their accounts after they received notice of the amendments. Moreover, SouthTrust argues, the regulations in force when both Daniels and Williams opened their respective accounts expressly allowed periodic amendments to the regulations. Thus, SouthTrust insists, "[t]he [initial checking-account] agreement itself, at the time it [was] signed by the depositor, expressly anticipate[d] that the Rules and Regulations may be amended by the Bank and that continued use of the account (not any signature) is the manifestation of the depositor's assent to the amendment." Brief of Appellant, at 20-21 (emphasis added). Thus, the disposition of this case turns on the legal effect of Williams and Daniels's continued use of the accounts after the regulations were amended. Williams and Daniels argue that "[i]n the context of contracts between merchants, a written confirmation of an acceptance may modify the contract unless it adds a material term, and arbitration clauses are material terms." Brief of Appellees, at 5 (emphasis added; some capitalization omitted). They analogize the procedure by which SouthTrust amended its regulations to transactions to which Ala.Code 1975, § 7-2-207, is applicable. Section 7-2-207 provides, in pertinent part: (Emphasis added.) Williams and Daniels concedeas they mustthat § 7-2-207 is included in Article 2 of Ala.Code 1975, entitled "Sales." They also concede that that Article governs "transactions in goods," § 7-2-102, and, consequently, that it is not applicable to the transactions in this case. Nevertheless, they argue: Brief of Appellees, at 9 (emphasis in original; footnote omitted). In response, SouthTrust states that "because of the `at-will' nature of the relationship, banks by necessity must contractually reserve the right to amend their deposit agreements from time to time." Brief of Appellant, at 16. In so stating, South-Trust has precisely identified the fundamental difference between the transactions here and those transactions governed by § 7-2-207. Contracts for the purchase and sale of goods are essentially bilateral and executory in nature. See Stumpf v. Richardson, 748 So. 2d 1225, 1227 (La.Ct.App. 1999) ("An agreement whereby one party promises to sell and the other promises to buy a thing at a later time ... is a bilateral promise of sale or contract to sell"). "[A] unilateral contract results from an exchange of a promise for an act; a bilateral contract results from an exchange of promises." Mark Pettit, Jr., Modern Unilateral Contracts, 63 B.U.L.Rev. 551, 553 (1983). Thus, "in a unilateral contract, there is no bargaining process or exchange of promises by parties as in a bilateral contract." Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 720 n. 11 (Ind.1997). "[O]nly one party makes an offer (or promise) which invites performance by another, and performance constitutes both acceptance of that offer and consideration." Id. Because "a `unilateral contract' is one in which no promisor receives promise as consideration for his promise," only one party is bound. Johns v. Thomas H. Vaughn & Co., 34 Ala.App. 99, 101, 38 So. 2d 19, 20 (1948). The difference is not one of semantics but of substance; it determines the rights and responsibilities of the parties, including the time and the conditions under which a cause of action accrues for a breach of the contract.[2] This case involves at-will, commercial relationships, based upon a series of unilateral transactions. Thus, it is more analogous to cases involving insurance policies, such as Woodmen of the World v. Harris, 740 So. 2d 362 (Ala.1999), and Ex parte Rager, 712 So. 2d 333 (Ala.1998).[3] The common thread running through those cases was the amendment by one of the parties to a business relationship of a document underlying that relationshipwithout the express assent of the other party to require the arbitration of disputes arising after the amendment. In Harris, Woodmen of the World Life Insurance Society ("Woodmen"), the insurer, sought to compel the arbitration of an action against it by its insured, Larry Harris. "After Harris became a member of Woodmen, but before he filed his action, Woodmen amended its constitution" to require the arbitration of disputes such as Harris's. 740 So. 2d at 363. Harris contended "that he did not learn about the *189 [arbitration] provision until after he had filed his action." Id. at 365 n. 6. In holding that the dispute was arbitrable, this Court said: 740 So. 2d at 367. (Emphasis added.) See also Woodmen of the World v. White, 35 F. Supp. 2d 1349 (M.D.Ala.1999). A similar issue was presented in Rager. In Rager, Jonathan Rager and Bessie Armistead sued Liberty National Insurance Company ("Liberty National"), alleging that Liberty National had denied coverage under a "hospital accident policy." 712 So. 2d at 334. Liberty National sought to compel arbitration of the dispute, based upon a provision in the policy it had delivered to Rager and Armistead. Rager and Armistead resisted arbitration on the ground that the application for the policy, pursuant to which they had sought insurance, did not contain an arbitration provision. Id. They argued that, although their policy contained an endorsement that included an arbitration clause, they never agreed to arbitrate, because they never signed the endorsement. Liberty National, on the other hand, contended that "the endorsement was a valid portion of the policy, and, therefore, that the arbitration clause should apply." 712 So. 2d at 335. This Court "agree[d] with Liberty National." Id. In doing so, it explained: 712 So. 2d at 335.[4] See also Ex parte Shelton, 738 So. 2d 864, 871 (Ala.1999) ("neither this Court, nor the Alabama Legislature,... can sanction an arbitration-specific limitation, such as a requirement that insurance companies obtain written consent from policyholders before amending an insurance contract through the mail by adding an arbitration provision"). The parties in Harris and Rager, like Williams and Daniels in this case, took no action that could be considered inconsistent with an assent to the arbitration provision. In each case, they continued the business relationship after the interposition of the arbitration provision. In doing so, they implicitly assented to the addition of the arbitration provision.[5] *190 Indeed, it is precisely this kind of acquiescence that forms the basis for the implicit assent to modification of a credit-card-account term, as set forth in Ala.Code 1975, § 5-20-5. Section 5-20-5 provides, in pertinent part: (Emphasis added.) Thus, in § 5-20-5, the Legislature provided a procedure that differs in no material respect from the one SouthTrust followed in this case. In other words, it expressly provided that original agreement may be amended by the lender, based upon the apparent acquiescence of the cardholder, with or without a change-in-terms clause such as the ones involved in this case. Section 5-20-5 was cited with approval in Stiles v. Home Cable Concepts, Inc., 994 F. Supp. 1410 (M.D.Ala.1998). The dispute in that case began when Johnny Stiles purchased a "satellite television receiving system." 994 F. Supp. at 1412. To finance the purchase, Stiles completed an application for a "revolving charge account with [American General Financial Center (`AGFC')]," dated March 31, 1994. Id. The application contained a clause purporting to authorize AGFC to "change the terms of [the] Agreement from time to time," upon notice of the proposed changes. Id. On January 1, 1997, pursuant to this change-in-terms clause, AGFC mailed Stiles a "NOTICE OF CHANGE OF TERMS," which contained an arbitration provision. 994 F. Supp. at 1413 (capital letters in original; boldface omitted). It also stated: "You may elect to reject these changes in terms by completing the attached postage paid postcard and returning it to [AGFC].... If you reject these changes ... there will be no arbitration agreement in effect." Id. (Boldface omitted.) Stiles did not respond to the invitation. In May 1997, after the effective date of the change of terms, Stiles sued, among others, AGFC, 994 F. Supp. at 1414, and AGFC interposed the arbitration provision. Stiles contended, as do Williams and Daniels in this case, that the arbitration clause was not part of the agreement between the parties. 994 F. Supp. at 1416-17. The district court rejected Stiles's contention. Noting that "the contract to which Stiles assented [could] be changed by AGFC," the court concluded that Stiles had "assented to [the] arbitration clause, even absent his signature." 994 F. Supp. at 1416. As evidence that the procedure was "[f]ar from being unconscionable," the court cited § 5-20-5, and its Utah counterpart, Utah Code, § 70C-4-102, noting that § 5-20-5 "would apparently permit the change as well."[6] 994 F. Supp. at 1418. Amendments to the conditions of unilateral-contract relationships with notice of the changed conditions are not inconsistent *191 with the general law of contracts. See Harris and Rager, supra. Federal law prohibits this Court from subjecting arbitration provisions to special scrutiny. Doctor's Assoc., Inc. v. Casarotto, 517 U.S. 681, 116 S. Ct. 1652, 134 L. Ed. 2d 902 (1996). Based on the foregoing,[7] we conclude that Williams and Daniels implicitly assented to be bound by the arbitration provisions by holding open their accounts after notice of the amendment.[8] We have considered the other arguments Williams and Daniels presented in opposition to the arbitrability of this dispute, and have found them to be without merit. Consequently, the trial court erred in denying SouthTrust's motion to compel arbitration. The order of the trial court is, therefore, reversed, and this cause is remanded for further proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. HOUSTON, J., concurs in the result. HOUSTON, Justice (concurring in the result). I have reviewed Powertel, Inc. v. Bexley, 743 So. 2d 570 (Fla.Dist.Ct.App.1999), which the appellees cited to the Court by a letter brief dated November 17, 1999. Powertel, however, has no precedential effect on this Court. Even if it did, Powertel is distinguishable because the lawsuit in that case was pending before Powertel attempted to add the disputed arbitration requirement to the parties' agreement. [1] The plaintiffs purport to represent a class of plaintiffs composed of "[a]ll persons ... in... Alabama, Georgia, Tennessee, Florida, Mississippi, North Carolina and South Carolina who have or have had checking accounts with [SouthTrust] and who have incurred checking account service charges when there were sufficient funds in the account... on the date of presentment to pay multiple checks." [2] A number of courts, for example, do not recognize a cause of action for the anticipatory breach of a unilateral contract. See, e.g., Smyth v. United States, 302 U.S. 329, 58 S. Ct. 248, 82 L. Ed. 294 (1937); Rosenfeld v. City Paper Co., 527 So. 2d 704 (Ala.1988); Cobb v. Pacific Mut. Life Ins., 4 Cal. 2d 565, 51 P.2d 84 (1935); Garrett v. American Family Mut. Ins., 520 S.W.2d 102 (Mo.Ct.App.1974). [3] The quintessential example of a unilateral contract is, perhaps, the contract for at-will employment. Ex parte McNaughton, 728 So. 2d 592, 603 (Cook, J., dissenting). However, "all forms of insurance are presumed to be unilateral contracts." Winters v. State Farm & Fire Cas. Co., 35 F. Supp. 2d 842, 845 (E.D.Okla.1999) (emphasis added). This is so, because, "after the insured has paid the premium, only the insurer is legally bound (by its promises) to do anything." Id. "[Fire insurance] is a reverse unilateral contract in that the applicant's acts of performance induce insurer's promise." Id. (Emphasis added.) See also 5 Walter H.E. Jaeger, Williston on Contracts § 673 (3d ed., 1961) ("A contract of insurance is normally a unilateral contract."). [4] We reiterate that an offer in the context of a unilateral insurance contract differs materially with different legal consequencesfrom an offer in the context of an executory, bilateral sales contract. [5] Our discussion of Harris and Rager is limited to the facts that were presented in those cases. [6] The contract in Stiles provided that it was to be "governed by and interpreted ... in accordance with the laws of the State of Utah." 994 F. Supp. at 1412. [7] We have not overlooked Marshall v. Nelson, 622 So. 2d 889 (Ala.1993), or Badie v. Bank of America, 67 Cal. App. 4th 779, 79 Cal. Rptr. 2d 273 (1998), cases on which Williams and Daniels rely. However, Marshall is distinguishable; Badie is also distinguishable, and even if it were not it would not be controlling. [8] Williams and Daniels do not contend that SouthTrust failed to send them notice of the proposed amendment to the regulations.

July 21, 2000

c1e0ca0d-3ff6-4a90-a0a3-402b4c421f03

Ex Parte City of Gadsden

781 So. 2d 936

1981366

Alabama

Alabama Supreme Court

781 So. 2d 936 (2000) Ex parte CITY OF GADSDEN. (Re Shirley McDonough v. Margaret Denise Parker et al.) 1981366. Supreme Court of Alabama. July 21, 2000. Rehearing Denied October 13, 2000. *937 Vann A. Spray of Ford & Howard, P.C., Gadsden, for petitioner. Gary J. Bone, Gadsden, for respondent Shirley McDonough. Curtis Wright of Dortch, Wright & Wright, Gadsden, for respondent Kandralyn S. Johnson. BROWN, Justice. The City of Gadsden ("the City"), a defendant in an action pending in the Etowah Circuit Court, petitions for a writ of mandamus directing that court to vacate its order of May 4, 1999, denying the City's motion for a summary judgment and to grant that motion. The sole issue presented by this petition is whether the City is entitled to immunity under § 6-5-338(b), Ala.Code 1975. Because we conclude that it is, we grant the petition. At 2:20 a.m. on November 1, 1997, Margaret Denise Parker lost control of her vehicle on a residential street in Gadsden. Parker drove through the yard of Shirley McDonough, striking a chain-link fence and dragging it across the street into the yard of James Steward. Parker's vehicle finally came to rest in Steward's yard, but only after striking a second fence. Parker exited the vehicle and began walking toward her house, located a short distance from the accident scene. McDonough's son Gary informed Parker that he was telephoning the police on his cellular phone and then he began following her on foot. Darrell Arnold was the first police officer to arrive on the scene. McDonough and Steward gave their accounts of what had happened and told Officer Arnold that a witness was following the driver of the vehicle. Fearing the potential for danger because "he had a witness chasing a drunk," and knowing that a second unit was en route, Officer Arnold left the scene in pursuit of the driver and the witness. As Officer Arnold was about to leave, Ms. McDonough informed him that a fence was stretched across the road; Officer Arnold testified that he told McDonough "[D]on't go near it," and that he explained that another patrol unit was on its way to the scene. Steward testified that he asked Officer Arnold to leave his vehicle at the scene with the lights on, to protect the site. Officer Arnold later stated by deposition that he did not recall any such requests having been made. Arnold left the scene; he located Parker while she was attempting to enter her residence. Parker was arrested and was charged with DUI and resisting arrest. Shortly after Officer Arnold had left the scene, Kandralyn Johnson drove down Winona Avenue and struck the fence that was stretched across the road; as a result of Johnson's striking the fence, McDonough became entangled in the fence and sustained injuries to her right foot and ankle. She sued the City and several other defendants. McDonough alleged in her complaint that Officer Arnold had negligently left the scene of an accident without properly securing the site and that his negligence was the proximate cause of her injuries. The City moved for a summary judgment, arguing that it was entitled to immunity and therefore could not be held liable on McDonough's claims. The trial court denied the motion for summary judgment. This petition followed. It is well settled that the denial of a motion for summary judgment based on a claim of immunity is reviewable by petition for writ of mandamus: Ex parte Kelley, 739 So. 2d 1095, 1096 (Ala. 1999). The City argues that § 6-5-338(a), Ala.Code 1975, grants Officer Arnold immunity from tort liability arising out of his conduct in performance of any discretionary function within the line and scope of his official duties, and that § 6-5-338(b) extends that immunity to the City. Section 6-5-338 provides, in pertinent part: In Couch v. City of Sheffield, 708 So. 2d 144, 153 (Ala.1998), this Court stated that § 6-5-338 extended discretionary-function immunity to a municipal police officer "unless the officer's conduct is so egregious as to amount to willful or malicious conduct or conduct engaged in in bad faith." The City argues that in leaving the accident scene Officer Arnold was performing a discretionary act and that he is, therefore, immune from liability. "Qualified immunity shields [an] employee from liability if the employee is engaged in a discretionary act, instead of a ministerial one, when the alleged tortious conduct occurs." Ex parte Alabama Dep't of Forensic Sciences, 709 So. 2d 455, 458 (Ala.1997). McDonough argues that Officer Arnold's failure to secure the accident scene in accordance with departmental regulations amounted to negligence in performing a ministerial act; therefore, she argues, Officer Arnold was not protected by the doctrine of discretionary-function immunity. Thus, we must first determine whether Officer Arnold was engaged in performing a discretionary function or a ministerial function. "Discretionary acts have been defined as those acts as to which there is no hard and fast rule as to the course of conduct that one must or must not take and those acts requiring exercise in judgment and choice and involving what is just and proper under the circumstances." Wright v. Wynn, 682 So. 2d 1, 2 (Ala.1996). However, acts taken willfully, maliciously, or in bad faith will not be considered discretionary. Id.; Couch v. City of Sheffield, 708 So. 2d 144 (Ala.1998). "Ministerial acts," on the other hand, are those acts "done by officers and employees who are required to carry out the orders of others or to administer the law with little choice as to when, where, how, or under what circumstances their acts are to be done." Carroll v. Hammett, 744 So. 2d 906, 910 (Ala.1999)(quoting earlier cases). The Gadsden Police Department's "Policy and Procedure Manual" contains the following provisions: (Capitalization original; other emphasis added.) Officer Arnold was faced with a situation for which there was no hard and fast set of rules. He could have pursued a witness who was chasing a fleeing DUI suspect, or he could have remained at the scene and protected the site until the next patrol unit arrived. In response to questions about why he did not stay at the scene of the accident until the second police car arrived, Officer Arnold testified, "I felt like the danger to an innocent bystander or witness was more immediate than what I had at the traffic-accident scene at the time." He also stated that he felt the chances that a motor vehicle would come down the road and hit the fence around 2:30 a.m. "were very slim." Clearly, Officer Arnold's duties as a law-enforcement officer required him to make a difficult split-second decision under unusual circumstances. Because the officer's decision to pursue a suspect being followed by a witness, instead of securing a well-lit accident scene with no injuries, required "an exercise in judgment and choice and [involved] what [was] just and proper under the circumstances," Wright, supra, we conclude that in making that decision Officer Arnold was performing a discretionary act and that § 6-5-338(a), Ala.Code 1975, gave him immunity from liability.[2] The plain language of § 6-5-338(b), Ala.Code 1975, extends that discretionary-function immunity to the City. We therefore grant the petition for the writ of mandamus and direct the Etowah Circuit Court to enter a summary judgment in favor of the City. WRIT GRANTED. HOOPER, C.J., and HOUSTON, SEE, and ENGLAND, JJ., concur. [1] The policy manual defines a "hazardous material" as "any element, compound, or combinations thereof, which is flammable, corrosive, explosive, toxic, radioactive and oxidizer, or is highly reactive and which, because of handling, storing, processing and packaging, may have detrimental effects upon emergency personnel, the public, equipment and/or the environment." [2] This holding is consistent with our recent decision in Ex parte Cranman, [Ms. 1971903, June 16, 2000] ___ So.2d ___ (Ala.2000), in which we restated the rule governing State-agent immunity. See Cranman, Part IV, ___ So.2d at ___.

July 21, 2000

8de73c43-7b60-4178-b799-a5f7886de98f

Southland Quality Homes, Inc. v. Williams

781 So. 2d 949

1990058

Alabama

Alabama Supreme Court

781 So. 2d 949 (2000) SOUTHLAND QUALITY HOMES, INC. v. James WILLIAMS and Linda Williams. 1990058. Supreme Court of Alabama. October 13, 2000. *951 Peter A. McInish and William W. Nichols of Lee & McInish Attorneys, Dothan, for appellant. Paul W. Brunson, Jr., and William H. Robertson of Robertson, Brunson & New, Clayton, for appellees. LYONS, Justice. Southland Quality Homes, Inc., a defendant in an action pending in the Barbour Circuit Court, appeals from the trial court's order purporting to grant a motion to stay litigation and compel arbitration, but ordering the parties to submit to a nonjury trial. We reverse and remand. The plaintiffs, James Williams and his wife Linda, purchased a mobile home from Southland Quality Homes, Inc. (hereinafter "Southland"), a mobile-home dealership, on August 8, 1996. At the time of the purchase, James and Linda Williams each executed two documents. One of the documents is labeled "RETAIL INSTALLMENT CONTRACT, SECURITY AGREEMENT, WAIVER OF TRIAL BY JURY AND AGREEMENT TO ARBITRATION OR REFERENCE OR TRIAL BY JUDGE ALONE," and the other is styled "ARBITRATION AGREEMENT." The "Retail Installment Contract" includes a page with the heading "ARBITRATION OF DISPUTES AND WAIVER OF JURY TRIAL." The provision at issue in this case is a paragraph from that page containing the following language: (Capitalization original; other emphasis added.) The subsequent paragraph in the "Retail Installment Contract" states that any arbitration shall be conducted according to the Commercial Rules of the American Arbitration Association ("AAA"). The next paragraph explains how any dispute not covered by the arbitration clause shall be resolved by a court-appointed referee, or by a bench trial. Both James and Linda Williams signed their names on the proper spaces provided on the agreement, under this statement, which appeared in bold print and capitalized letters: "CAUTIONIT IS IMPORTANT THAT YOU THOROUGHLY READ THE CONTRACT BEFORE YOU SIGN IT." An agent of Southland signed on its behalf. The Williamses sued Southland; Southern Energy Homes, Inc.;[1] BankAmerica Housing Services;[2] and various fictitiously named parties, alleging that the mobile home they purchased was defective. They specifically alleged that the defendants had breached the warranties of merchantability, fitness for a particular purpose, and habitability, as well as an express warranty; that they had committed fraud by misrepresenting the condition of the mobile home; that they had negligently or wantonly misrepresented the condition of the mobile home; and that they had negligently or wantonly misrepresented that they would repair claimed defects in the mobile home. We first address the appropriate method for securing review of the order Southland complains of. This Court will entertain an appeal, as a matter of right, from an order denying a motion to compel arbitration. A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358, 360 (Ala.1990). However, we review an order compelling arbitration by a petition for a writ of mandamus. Lopez v. Home Buyers Warranty Corp., 670 So. 2d 35 (Ala.1995). See Jack Ingram Motors, Inc. v. Ward, 768 So. 2d 362 (Ala.1999) (discussing at length the dichotomous methods of review in arbitration matters and "ask[ing] our Standing Committee on the Alabama Rules of Appellate Procedure to draft and propose for our adoption procedures for appellate review of orders either compelling or denying arbitration," 768 So.2d at 366). Although the order Southland complains of purports to grant Southland's motion to stay the litigation and to compel arbitration, it in fact orders the parties to submit to a bench trial. This order thus effectively and substantively denies Southland's motion to compel arbitration and imposes upon Southland another means of dispute resolution. In a situation such as this, this Court looks to the substance of a motion or order, rather than its form. See King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518 So. 2d 714, 718 (Ala. 1987). Therefore, we conclude that Southland was entitled to an appeal as a matter of right. The sole substantive issue before us is whether the trial court erred by denying Southland's motion to compel arbitration and ordering the parties to submit to a bench trial. This Court reviews de novo a trial court's order denying a motion to compel arbitration. Kenworth of Dothan, Inc. v. Bruner-Wells Trucking, Inc., 745 So. 2d 271, 273 (Ala.1999); Patrick *953 Home Ctr., Inc. v. Karr, 730 So. 2d 1171, 1172 (Ala.1999). Southland and the Williamses agree that a contract that substantially affects interstate commerce and that contains provisions for arbitration of disputes is subject to the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq., and they agree that the contract at issue here is such a contract. See, also, Allied-Bruce Terminix Cos. v. Dobson, 684 So. 2d 102, 105 (Ala.1995). Because the interstate nature of the transaction to which the contract relates is not challenged, we must apply the FAA. We must determine whether the trial court erred in construing the arbitration agreement to require a bench trial as the method of dispute resolution. In Southern Energy Homes, Inc. v. Harcus, 754 So. 2d 622, 626 (Ala.1999), this Court held: We therefore look to principles of Alabama contract law to guide our determination. If a contract is unambiguous on its face, there is no room for construction and it must be enforced as written. See Thompson Tractor Co. v. Fair Contracting Co., 757 So. 2d 396, 398 (Ala.2000); Ex parte Hagan, 721 So. 2d 167, 173 (Ala. 1998). A court may not twist the plain meaning of the terms in a contract to create an ambiguity under the guise of interpretation. See Dutton, 736 So. 2d at 570. The primary source for deciding whether a contract is clear is the text of the document itself. "It is well established in Alabama that when an instrument is unambiguous its construction and legal effect will be based upon what is found within its four corners. The determination of whether an instrument is ambiguous is a question of law for the court to decide." Austin v. Cox, 523 So. 2d 376, 379 (Ala. 1988). Even if some ambiguity does exist in a contract, a court has the duty to accept a construction that will uphold the contract, rather than one that will make it invalid. See Wilson v. World Omni Leasing, Inc., 540 So. 2d 713, 716 (Ala.1989). Furthermore, when interpreting arbitration agreements, this Court is bound to resolve any ambiguity in favor of arbitration. See Kenworth of Dothan, Inc., 745 So. 2d at 274. Courts are guided by the intent of the parties, which, absent some exceptional circumstance, is evidenced by the plain language of the document itself. See Dobson, 684 So. 2d at 110. In examining the text of the arbitration provision, we find no room for ambiguity. On its face, the document makes it clear that arbitration is the sole means of dispute resolution for "claimants who are related or asserting claims arising from a single transaction." James and Linda Williams are husband and wife; thus, they meet the "related" requirement. The contract also provides for a disjunctive choice. Because the sale of the mobile home, a single transaction, is the source of all the Williamses' claims, the agreement would bind them to arbitration even if they were *954 not related. The trial court's order requiring a bench trial is a third alternative, but that alternative is to be employed only if arbitration is not required and a judicially appointed referee is not available. The language of the arbitration agreement precisely contemplates the present situation: multiple claimants who are related and who have claims arising from the sale of the mobile home. Because we find no ambiguity in the agreement, we conclude that the trial court erred by not enforcing it as it is written.[3] We reverse the order denying arbitration and remand the case with instructions to compel arbitration as called for in the language of the contract between the parties. REVERSED AND REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and MADDOX, COOK, and JOHNSTONE, JJ., concur. [1] Southern Energy Homes, Inc., is apparently still a defendant in the action, although it is not a party to this appeal. [2] The trial court dismissed BankAmerica as a defendant. [3] Because we find the unambiguous requirement to arbitrate detailed in the Retail Installment Contract dispositive, we need not reach Southland's argument as to whether the separately executed additional arbitration agreement is valid.

October 13, 2000

89fb5745-c13e-4109-a507-9bcb4a499336

WD Williams, Inc. v. Ivey

777 So. 2d 94

1980212

Alabama

Alabama Supreme Court

777 So. 2d 94 (2000) W.D. WILLIAMS, INC., d/b/a Williams Mitsubishi v. Mary L. IVEY. 1980212. Supreme Court of Alabama. June 30, 2000. *95 William L. Lee III, William L. Lee IV, and William W. Nichols of Lee & McInish, Dothan, for appellant. Charles D. Decker, Dothan, for appellee. PER CURIAM. Mary L. Ivey purchased an automobile from a dealership operated by W.D. Williams, Inc., d/b/a Williams Mitsubishi. She later sued Williams Mitsubishi in the Houston Circuit Court, stating various claims related to her purchase of the automobile. The defendant Williams Mitsubishi moved to compel Ivey to arbitrate her claims. The trial court denied its motion. Williams Mitsubishi appeals from the order denying its motion to compel arbitration. We affirm. In May 1996, Mary Lynn Ivey, a 41-year-old college graduate, purchased a used automobile from Williams Mitsubishi. Ivey purchased it from salesman Radney Williams, whom she had known for approximately seven years and from whom she had previously bought other vehicles.[1] Shortly after the purchase, Ivey began experiencing problems with the vehicle. Ivey sued Williams Mitsubishi, alleging misrepresentation, seeking damages under Ala.Code 1975, § 7-2-714 (relating to breach of contract by delivery of nonconforming goods), and alleging breach of an express warranty and an implied warranty. Ivey also alleged that Williams Mitsubishi had violated the Magnusson-Moss Warranty Federal Trade Commission Improvement Act, 15 U.S.C. §§ 2301 to 2312. Williams Mitsubishi moved to compel arbitration, based upon an arbitration agreement it claims Ivey signed when she purchased the vehicle.[2] The arbitration agreement reads, in pertinent part, as follows: The trial court held a hearing on the motion to compel arbitration. The first witness to testify was Michael Williams, owner and president of Williams Mitsubishi. Mr. Williams testified that the standard practice at Williams Mitsubishi is to have the customer sign the bill of sale, the contract for financing, insurance forms, the title application, a statement relating to the odometer reading, a power of attorney, and an arbitration agreement, all at the same time. He stated that the forms are ordinarily typewritten, but that the arbitration agreement is sometimes handwritten. Williams further stated that Ivey was not forced to sign any document pertaining to the sale of the automobile; however, he acknowledged that he was not present when she signed the paperwork related to the purchase. Radney Williams,[3] besides working as a salesman, was the finance and insurance manager with Williams Mitsubishi at the time Ivey bought the car. He testified that Ivey signed the arbitration agreement on May 4, 1996, as part of the paperwork the company required for a sale. He stated that he had known Ivey for seven or eight years and had sold her vehicles in the past. He further testified that in selling cars he always explained the arbitration agreement to the customer and always gave the customer an opportunity to read the arbitration agreement before signing it. In accordance with that usual practice, he said, he gave Ivey an opportunity to read the arbitration agreement before she signed it. Ivey acknowledged that her signature was on the arbitration agreement. She admitted that the arbitration agreement did not contain any words that she could not understand and that she had not been forced to sign that agreement. She stated, however, that she chose not to read the agreement before signing it. She further testified that she was completely unaware that she had signed an arbitration agreement until Williams Mitsubishi moved to compel arbitration. Ivey additionally testified that she did not sign the arbitration agreement until after she met with Michael Williams on June 12, 1996, to discuss problems she was experiencing with the vehicle.[4] Ivey alleged that Radney Williams contacted her after she met with Michael Williams, and informed her that he needed her signature on a paper. Ivey says Radney Williams had led her to believe she was signing a paper related to the car she had traded in and that he had covered the paper with a file folder so that she could not see what she was signing. *97 The trial court denied Williams Mitsubishi's motion to compel arbitration, but indicated no grounds for the denial. Williams Mitsubishi appeals from the order denying arbitration.[5] We must first determine the standard of review applicable in this case. Ivey argues that the trial court made findings of fact based on ore tenus evidence; that such findings are presumed correct; and that an order based on those findings shall not be disturbed on appeal unless the findings are palpably wrong, manifestly unjust, or without supporting evidence. She cites Ex parte South Carolina Ins. Co., 683 So. 2d 987 (Ala.1996); Ex parte Pielach, 681 So. 2d 154 (Ala.1996); Lawrence County v. Decatur Gen. Hosp., 675 So. 2d 393 (Ala. 1996); and Jefferson County v. City of Leeds, 675 So. 2d 353 (Ala.1995). Ivey contends that we should apply an abuse-of-discretion standard of review in cases such as this one, where the trial court has denied a motion to compel arbitration, citing Ex parte Napier, 723 So. 2d 49 (Ala.1998), and Capital Investment Group, Inc. v. Woodson, 694 So. 2d 1268 (Ala.1997). In Patrick Home Center, Inc. v. Karr, 730 So. 2d 1171 (Ala.1999), this Court determined, for the first time, that appellate review of a trial court's refusal to compel arbitration is de novo: Id. at 1172. A number of recent cases have also applied the de novo standard of review, relying on Patrick Home Center. See First American Title Ins. Corp. v. Silvernell, 744 So. 2d 883 (Ala.1999); Jim Burke Automotive, Inc., v. Murphy, 739 So. 2d 1084 (Ala.1999)(a motion to compel arbitration presents a question of law; thus, an appellate court will review a ruling on such a motion de novo); Crimson Indus., Inc. v. Kirkland, 736 So. 2d 597 (Ala.1999) (review of a trial court's order refusing to compel arbitration is de novo without a presumption that the trial court was correct).[6] However, in Capital Inv. Group, Inc. v. Woodson, 694 So. 2d 1268 (Ala.1997), this Court applied the abuse-of-discretion standard in reviewing an order denying a motion to compel arbitration. Because it appears this Court has applied different standards of review in cases where the trial court denied a *98 motion to compel arbitration, we will clarify what appear to be inconsistencies. An order refusing to compel arbitration is generally reviewed de novo. However, we recognize an exception to this general rule. In cases such as this one, where in ruling on the motion to compel arbitration a trial court hears ore tenus evidence and makes findings of fact based on that evidence, its order will not be set aside on appeal unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Jasper City Council v. Woods, 647 So. 2d 723 (Ala. 1994). Absent live testimony, the trial court's findings of fact carry no presumption of correctness and we will review the trial court's factual and legal conclusions de novo. Justice v. Arab Lumber & Supply, Inc., 533 So. 2d 538 (Ala.1988). Williams Mitsubishi contends that the trial court erred in denying its motion to compel arbitration because, it argues, (1) the underlying transaction involved interstate commerce;[7] (2) by signing the arbitration agreement, Ivey agreed to arbitrate any dispute with Williams Mitsubishi arising out of the transaction; (3) the arbitration agreement was broad enough to encompass all of Ivey's claims; and (4) Ivey did not prove that she was fraudulently induced to sign the arbitration agreement. Williams Mitsubishi also claims that Ivey could not have reasonably relied upon the alleged misrepresentation by Radney Williams, because, it says, she had the opportunity to read the arbitration agreement and verify its contents before signing it. Williams Mitsubishi cites several cases, including Green Tree Agency, Inc. v. White, 719 So. 2d 1179 (Ala.1998), to support its argument that when a competent adult, having the ability to read and understand an instrument, signs a contract, he will be on notice of all of the provisions contained in the contract and will be bound thereby. Therefore, Williams Mitsubishi argues, the arbitration agreement is valid and enforceable and clearly obligates Ivey to arbitrate her disputes with Williams Mitsubishi. Ivey argues that the court correctly denied the motion to compel arbitration because, she says, Williams Mitsubishi obtained the agreement in a fraudulent manner that prevented her from agreeing to arbitrate of her claims.[8] Ivey alleges that the arbitration agreement was procured by fraud. Her fraud claim is subject to the "reasonable-reliance" standard.[9] Under that standard, Ivey could not prevail on her fraud claim if she in fact made a conscious decision not to read the arbitration agreement and nonetheless signed it without verifying the nature of its contents. However, we must assume the trial court made the findings of fact necessary to support its order, i.e., that it found fraud. See Thomas v. Davis, 410 So. 2d 889, 891 (Ala.1982). Under the ore tenus standard of review, we must assume the trial court's factual finding of fraud was correct, and thus we must uphold the order based on that finding unless the court had before it no credible evidence to support that finding. Ivey testified that she was not asked to sign the arbitration agreement until June 12, 1996, approximately six weeks after she had purchased the vehicle and after she had had numerous problems with it. She testified further that Radney Williams, whom she had personally known for approximately seven years and from whom she had previously bought other vehicles, represented to her that the document she was signing related to the vehicle she had traded in, and that he had covered *99 the document with a file folder so that she could not see what she was signing. This testimony was sufficient to create a fact question with respect to whether Ivey's reliance on Williams's representation concerning the nature of the document was reasonable. Accordingly, the order denying the motion to compel arbitration is affirmed. AFFIRMED. HOUSTON, COOK, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. BROWN, J., concurs in the result. HOOPER, C.J., and MADDOX and SEE, JJ., dissent. HOOPER, Chief Justice (dissenting). I must respectfully dissent. Under the reasonable-reliance standard applicable to this case, Mary Ivey cannot demonstrate that she was fraudulently induced into signing the arbitration agreement. Ivey is a college graduate who made a conscious decision not to read the document offered to her. She signed an arbitration agreement without verifying its contents. Ivey does not allege that she was forced to sign the agreement, and she admits that the arbitration agreement does not contain any words that she could not understand. The fact that she says the arbitration agreement was covered by a file folder so that she could not see what she was signing makes it even more unreasonable to think that Ivey relied on Radney Williams's representations. This Court stated in Torres v. State Farm Fire & Casualty Co., 438 So. 2d 757, 758-59 (Ala.1983): This case presents a clear example of closing one's eyes to the truth. Under the circumstances in this case, one must conclude that Ivey failed to exercise ordinary diligence in relying on any action by Williams that allegedly "led her to believe she was signing a paper related to the car she had traded in." Her reliance was not reasonable and cannot form the basis of a determination that she was fraudulently induced into signing the arbitration agreement. Because there was no supporting evidence for the trial court's finding of fraud, I would reverse the trial court's denial of the motion to compel arbitration. SEE, J., concurs. [1] The parties dispute the actual date of the purchase. Ivey alleges that she test drove the vehicle on Saturday, May 4, 1996, and that she returned to the dealership on Monday, May 6, 1996, and purchased the car at that time. Radney Williams testified that Ivey purchased the car on May 4, 1996; this is the date on the paperwork related to the purchase. Ivey alleges that Williams backdated the papers, but Williams denies doing so. [2] The arbitration agreement appears in a separate document and not as part of the sales contract. As discussed later in this opinion, the date Ivey signed the arbitration agreement is in dispute. [3] Nothing in the record indicates that Radney Williams and Michael Williams are related. [4] Ivey wrote a letter to Michael Williams on June 4, 1996, detailing her problems with the vehicle. She met with Michael Williams on June 12, 1996, and on that date he initialed the letter, acknowledging receipt. [5] An appeal is "the proper procedure by which to challenge a denial of a motion to compel arbitration." A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358, 360 (Ala.1990). A petition for a writ of mandamus is the generally accepted method by which to challenge the trial court's order granting a motion to compel arbitration. Ex parte Phelps, 672 So. 2d 790 (Ala.1995). [6] In Crimson Industries, this Court stated an exception to the application of the de novo standard: "Our decision regarding the standard of review does not affect this Court's holding in Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So. 2d 897 (Ala.1995), in which it held that a trial court's determination as to whether a party had waived the right to compel arbitration should be reviewed under the abuse-of-discretion standard." 736 So. 2d at 600, n. 3. [7] Ivey does not argue that the transaction did not involve interstate commerce. [8] No language in the arbitration agreement evidences an intent to submit the issue of arbitrability to arbitration. [9] This case was filed on September 3, 1997, after this Court had readopted the reasonable-reliance standard. See Foremost Ins. Co. v. Parham, 693 So. 2d 409 (Ala.1997).

June 30, 2000

45744bcb-d717-4f99-98e5-b77a6561dbad

Ex Parte ED

777 So. 2d 113

1990167

Alabama

Alabama Supreme Court

777 So. 2d 113 (2000) Ex parte E.D. (In re E.D. v. State Department of Human Resources). 1990167. Supreme Court of Alabama. July 21, 2000. *114 Katie Seals Ferguson, Tuscaloosa, for petitioner. J. Coleman Campbell and Lynn S. Merrill, asst. attys. gen., Department of Human Resources, for respondent. LYONS, Justice. E.D. appealed to the Court of Civil Appeals from the juvenile court's dismissal of her Rule 60(b)(6), Ala.R.Civ.P., motion, in which she had asked the court to set aside its judgment terminating her parental rights as to her minor children. The Court of Civil Appeals affirmed. See R.D. v. State Dep't of Human Resources, 777 So. 2d 110 (Ala.Civ.App.1999). E.D. sought certiorari review from this Court; we granted her petition.[1] We reverse and remand. On June 30, 1998, the Tuscaloosa Juvenile Court entered a judgment terminating E.D.'s parental rights. On July 9, E.D.'s attorney withdrew from the case, and the court appointed E.D. a new attorney for the purpose of appeal. On July 14, E.D. filed a notice of appeal. On January 8, 1999, the Court of Civil Appeals affirmed, without an opinion. R.D. v. State Dep't of Human Resources (No. 2971140), 776 So. 2d 220 (Ala.Civ.App.1999) (table). On March 3, E.D. filed a Rule 60(b)(6) motion with the juvenile court, alleging ineffective assistance of trial counsel. In her motion, E.D. asked the court, pursuant to Rule 60(b)(6), to set aside or reopen the judgment terminating her parental rights, to order a new trial, or to enter a new judgment. She argued that because a new attorney was appointed to represent her on appeal, that attorney could not have known what had happened at the termination hearing until the trial transcript was completed and filed with the court. That occurred on September 8, she said, well beyond the 14-day period within which a party in a juvenile proceeding can file an appeal. Therefore, she argues, it would have been impossible for her appellate attorney to raise her ineffective-assistance-of-counsel claim within the 14-day period provided by the Rules of Juvenile Procedure. The trial court denied E.D.'s motion as untimely. The court treated her motion as a motion for a new trial pursuant to Rule 59, Ala.R.Civ.P., and stated that Rule 60(b) does not apply to juvenile cases. E.D. appealed. In affirming, the Court of Civil Appeals concluded that, although E.D. filed her motion pursuant to Rule 60(b)(6), the trial court correctly treated it as a motion filed pursuant to Rule 59 and correctly denied the motion as untimely. The court based its decision on Rule 1(B), Ala.R.Juv.P., which provides in part that "[a]ll postjudgment motions, whether provided for by the Alabama Rules of Civil Procedure or the Alabama Rules of Criminal Procedure, must be filed within 14 days after entry of judgment and shall not remain pending for more than 14 days." The Court of Civil Appeals reasoned that granting E.D.'s motion would require rewriting Rule 1(B). The Court of Civil Appeals noted that in her motion E.D. argued (1) that her trial attorney did not meet with her from February 6, 1998, until the time of trial on June 29, 1998; (2) that he had failed to offer evidence of the counseling she was receiving; and (3) that he had failed to timely request certain services provided by the Department of Human Resources ("DHR") for reunification purposes and had failed to discuss the issue of services with her. The court reasoned that these matters were ascertainable through discussions between E.D. and her appellate attorney and were not solely ascertainable from a review of the termination hearing transcript. Therefore, the court concluded, *115 E.D. could have filed a motion for a new trial within the time allowed by the juvenile rules. Judge Crawley, in a dissenting opinion, questioned whether, "under most circumstances or under the circumstances of this case, a claim of ineffective assistance of counsel can reasonably be presented in a post-trial motion filed within 14 days of a judgment terminating parental rights." 777 So. 2d at 112. The dissent argued that the trial court erred by treating E.D.'s Rule 60(b)(6) motion as one for a new trial pursuant to Rule 59. The Court of Civil Appeals has held that a parent's right to legal representation in a parental-rights-termination case includes the right to effective assistance of counsel. See Crews v. Houston County Dep't of Pensions & Sec., 358 So. 2d 451, 454 (Ala.Civ.App.1978). Because the same right is afforded a defendant in a criminal case, the dissent discussed the use of Rule 32 proceedings in a criminal case to raise an ineffective-assistance-of-counsel claim in a collateral attack and pointed out that a collateral attack on a judgment in a civil case is permitted by Rule 60(b)(6). The dissent concluded, "Rule 60(b)(6) appears to be the appropriate vehicle for a parent claiming ineffective assistance of counsel to seek relief from a judgment terminating parental rights." 777 So. 2d at 113. In her certiorari petition, E.D. states that the trial court did not appoint a new attorney for her until the 13th day of the 14-day period within which she could file a postjudgment motion or an appeal. E.D. repeats her argument that her new attorney could not have known what happened at trial until the trial transcript was completed and filed with the court in September 1998. Therefore, she argues, it was impossible for her attorney to file an ineffective-assistance-of-counsel claim within the 14-day period provided by Rule 1(B), Ala.R.Juv.P. DHR argues that, in September 1998, when E.D.'s appellate attorney first discovered the evidence that E.D. claims supports a new trial, E.D. should have sought leave from the Court of Civil Appeals to file a Rule 60(b) motion with the trial court. Instead, it argues, E.D. chose to wait until almost two months after the completion of her appeal, almost six months after the completion of the transcript, and almost nine months after the entry of the trial court's order. DHR also argues that E.D. did not prove that her trial counsel was ineffective or that more effective trial counsel would have made a difference in the outcome of the parental-rights-termination hearing. In a parental-rights-termination case, a parent has a right to appointed counsel. Section 12-15-63(b), Ala.Code 1975, states: See, also, Valero v. State Dep't of Human Resources, 511 So. 2d 200, 202 (Ala.Civ. App.1987); Matter of Ward, 351 So. 2d 571, 573 (Ala.Civ.App.1977). "[I]nherent [in] a parent's right to legal representation in a deprivation hearing is the right to effective assistance of counsel." Crews, supra, 358 So. 2d at 455. Similarly, in a criminal case, a defendant has a right to court-appointed counsel. A criminal defendant must raise a claim of ineffective-assistance-of-counsel in a motion for a new trial in order for that claim to be properly preserved for review upon direct appeal. Ex parte Ingram, 675 So. 2d 863, 865 (Ala.1996). However, when a criminal defendant cannot reasonably make an ineffective-assistance-of-counsel claim in a motion for new trial within the 30 days allowed by Rule 24.1(b), Ala. R.Crim.P., the proper method for presenting that claim is to petition for post-conviction relief pursuant to Rule 32, Ala. R.Crim.P. Id. at 866. As a general rule, a court will not entertain a Rule 32 petition *116 more than two years after the Court of Criminal Appeals has issued its certificate of judgment, or, in the case of a conviction from which no appeal is taken, more than two years after the time for filing an appeal elapses. See Rule 32.2(c). Just as Rule 32, Ala.R.Crim.P., allows a criminal defendant to collaterally attack his conviction, Rule 60(b), Ala.R.Civ. P., permits a civil litigant to collaterally attack a civil judgment. See Evans v. Waddell, 689 So. 2d 23, 31 (Ala.1997). Rule 60(b) mandates that motions under this subsection be filed "within a reasonable time." "What constitutes a `reasonable time' depends on the facts of each case, taking into consideration the interest of finality, the reason for the delay, the practical ability to learn earlier of the grounds relied upon, and the prejudice to other parties." Ex parte W.J., 622 So. 2d 358, 361 (Ala.1993). Rule 60(b) allows a trial court to entertain an independent action "within a reasonable time and not to exceed three (3) years after the entry of the judgment." E.D. filed her Rule 60(b)(6) motion on March 3, 1999, less than 60 days after the Court of Civil Appeals had rendered its decision on January 8, 1999. After reviewing all of the procedural aspects of this case, we conclude that, in the context of bringing an ineffective-assistance-of-counsel claim before the court, the comparison of the mother's use of Rule 60(b) in a civil setting to a defendant's use of Rule 32 in a criminal setting is appropriate, and we hold that a Rule 60(b) motion, under certain circumstances, such as those presented here, can be an appropriate means by which a parent facing the termination of parental rights can present claims of ineffective assistance of appointed counsel. We must now determine whether the mother filed her motion within a reasonable time. DHR correctly argues that E.D. could have asked the Court of Civil Appeals for permission to file her motion in the trial court while her appeal was pending, because the pendency of her appeal did not toll the time for acting under Rule 60(b). Rule 60(b) states, "Leave to make the motion need not be obtained from any appellate court except during such time as an appeal from the judgment is actually pending before such court." However, we are not prepared to say that, under the circumstances of this case, the mother's motion was not filed within a reasonable time. The termination of parental rights is a solemn matter that deserves the law's utmost protection. See T.D.M. v. Elmore County Dep't of Human Resources, 586 So. 2d 931, 932 (Ala.Civ. App.1991), quoting Ex parte Beasley, 564 So. 2d 950 (Ala.1990). We know of no means by which parental rights, once terminated, may be reinstated. V.M. v. State Dep't of Human Resources, 710 So. 2d 915 (Ala.Civ.App.1998); and K.M. v. Shelby County Dep't of Human Resources, 628 So. 2d 812 (Ala.Civ.App.1993). Balancing the drastic effect of the termination of parental rights against the need for finality in the ultimate disposition of questions regarding parental rights as to the children whose lives are affected by these cases, and considering the absence of any previous decision of this Court approving the application of Rule 60(b) in the circumstances here presented, we hold that the mother's Rule 60(b)(6) motion, filed within 60 days after the Court of Civil Appeals affirmed the termination judgment, was filed within the "reasonable time" required by Rule 60(b). We reverse the judgment of the Court of Civil Appeals and remand the cause for that court to order further proceedings consistent with this opinion. On remand, the trial court should consider the merits of the mother's ineffective-assistance-of-counsel claim. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] R.D. also appealed to the Court of Civil Appeals from the juvenile court's dismissal of his Rule 60(b)(6) motion, but he did not petition this Court for certiorari review.

July 21, 2000

17f753fa-5143-4e7d-91c3-9de6b6f9cba5

State v. Thrasher

783 So. 2d 103

1990568

Alabama

Alabama Supreme Court

783 So. 2d 103 (2000) Ex parte State of Alabama. (Re STATE v. Steven Keith THRASHER). 1990568. Supreme Court of Alabama. August 11, 2000. *104 Bill Pryor, atty. gen., and G. Ward Beeson, asst. atty. gen., for petitioner. Brent M. Craig of Craig & Craig, P.C., Decatur, for respondent. MADDOX, Justice. The sole question presented by this case is whether a prior uncounseled conviction for driving under the influence of alcohol ("DUI") can be used to enhance a defendant's sentence, where the prior uncounseled DUI conviction was a misdemeanor for which the defendant received no jail *105 time. The Court of Criminal Appeals held that the trial court "correctly determined that two of Thrasher's convictions could not be used for enhancement purposes." State v. Thrasher, 783 So. 2d 100, 103 (Ala. Crim.App.1999). We disagree. Many of the facts relating to the issue presented in this case are contained in the opinion of the Court of Criminal Appeals, and we set out here a few of those facts for a better understanding of the reason we reverse that Court's judgment. On February 21, 1998, Steven Keith Thrasher was issued a traffic ticket charging him with driving under the influence of alcohol, a violation of § 32-5A-191(a)(2), Ala.Code 1975. On March 4, 1998, the Decatur Municipal Court transferred the case to the Morgan Circuit Court for prosecution as a "felony DUI," under § 32-5A-191(h), Ala.Code 1975, because Thrasher had had at least three prior DUI convictions. On August 21, 1998, the Morgan County Grand Jury returned an indictment charging Thrasher with felony DUI and alleging 4 prior DUI convictions: 1) an uncounseled guilty-plea conviction on March 16, 1981, for which he was fined $114, but not given a jail sentence, suspended or otherwise; 2) an uncounseled guilty-plea conviction on February 20, 1984, for which he was fined $500 and sentenced to 48 hours in jail; 3) a counseled guilty-plea conviction on May 15, 1992, for which he was fined $500 and was sentenced to 30 days in jail, with 28 days suspended and 48 hours served; and 4) a counseled guilty-plea conviction on October 28, 1993, for which he was fined $750 and was sentenced to 60 days in jail, with 50 days suspended and 10 days served, followed by 18 months' probation. When the parties appeared for trial on March 9, 1999, the circuit court required the State to prove Thrasher's prior DUI convictions it intended to use to enhance Thrasher's sentence. The circuit court found that two of Thrasher's four prior DUI convictions, the March 16, 1981, conviction and the February 20, 1984, conviction, were "uncounseled," meaning that the record did not show that Thrasher had been represented by counsel or that he had voluntarily waived his right to counsel; the court held that the State could not use those two prior convictions to enhance the possible sentence in Thrasher's case. Consequently, the circuit court transferred the case back to the municipal court. The State appealed this pretrial ruling to the Court of Criminal Appeals. The State argued that an uncounseled prior conviction can be used for enhancement if the conviction is a misdemeanor for which the defendant received no jail time. The Court of Criminal Appeals rejected this argument. The Court of Criminal Appeals recognized that this Court has stated that "[i]n misdemeanor cases ... the right [to counsel] applies only when the defendant is actually sentenced to jail," Ex parte Reese, 620 So. 2d 579, 580 (Ala.1993), but it rejected the State's argument that Reese stands for the proposition that a prior uncounseled conviction for which the defendant received no jail time could be used for sentence enhancement. In this present case, the Court of Criminal Appeals based its decision, in part, on the fact that the record was silent as to the sentences imposed on Thrasher for the two prior uncounseled-DUI-misdemeanor convictions in question. However, in its application for rehearing in the Court of Criminal Appeals, the State argued that a supplemental record filed in the case showed that Thrasher received no jail time for his March 1981 and February 1984 convictions, and the defendant, in his brief filed in this Court, does not refute *106 this argument. However, that supplemental record shows that Thrasher was sentenced to 48 hours in jail for his February 1984 conviction. The Court of Criminal Appeals also based its decision in this case on its own prior decision in Bilbrey v. State, 531 So. 2d 27 (Ala.Crim.App.1987), which held that when a prior misdemeanor conviction is to be used for enhancement purposes under a recidivist statute, the State must establish that the defendant was represented by counsel or validly waived counsel at the prior proceeding, only if the prior misdemeanor was punishable by more than six months' imprisonment. See 531 So. 2d at 32. It is apparent from a reading of the Bilbrey case that it was predicated on the United States Supreme Court's opinion in Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d 169 (1980), which held that under the applicable Illinois sentencing-enhancement statute, a prior uncounseled misdemeanor conviction could not be used to elevate a second misdemeanor conviction to a felony conviction. Baldasar, however, was subsequently overruled by Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994). Nichols held that an uncounseled misdemeanor conviction, where the defendant did not receive a prison term, could be used to enhance a defendant's punishment upon a subsequent conviction. See 511 U.S. at 748, 114 S. Ct. 1921. Despite the overruling of Baldasar, the Court of Criminal Appeals held, in this case, that if the State intends to use any prior DUI conviction for enhancement purposes, the State must establish that at the prior DUI proceeding the accused was represented by counsel or waived the right to counsel. The Court of Criminal Appeals stated that as long as it did not impose greater restrictions upon a defendant's due-process rights than the United States Supreme Court determines the United States Constitution allows, the Court of Criminal Appeals may interpret the Alabama Constitution to afford an individual due-process rights that are broader and greater than the minimal due-process rights provided by the federal standards. Although we agree with the Court of Criminal Appeals' general statement that the Alabama Constitution may afford a defendant greater due-process protections than the Constitution of the United States provides, we disagree with that court's holding that before the State may use a prior misdemeanor-DUI conviction to enhance a defendant's sentence, the record must show that at the prior proceeding the defendant was represented by counsel or knowingly and voluntarily waived counsel. The State, in order to use a prior DUI misdemeanor conviction to enhance a defendant's DUI sentence, need not prove that in the earlier proceeding the defendant was represented by counsel or knowingly and voluntarily waived counsel, if in the prior proceeding the defendant did not receive a jail term. This position is based on the reasoning of the United States Supreme Court in Nichols, and we adopt that reasoning; we conclude that under the circumstances presented by this particular case the Alabama Constitution does not afford a defendant greater due-process protections than the Federal Constitution. Based on the foregoing, we conclude that the Court of Criminal Appeals erred in holding that the State could not use Thrasher's March 1981 uncounseled DUI conviction because, upon that conviction, Thrasher was not sentenced to a jail term. Therefore, the Court of Criminal Appeals' judgment is due to be reversed insofar as it held the State could not use the March 1981 conviction, and the cause is to be remanded for the Court of Criminal *107 Appeals to order proceedings consistent with this opinion. We conclude that the circuit court's order transferring the case back to the municipal court was properly reversed, based on this Court's holding in Ex parte Formby, 750 So. 2d 587 (Ala.1999), because it appears that Thrasher has three prior DUI offenses that can be used to enhance his sentence under § 32-5A-191, Ala.Code 1975; because of the three prior DUI convictions, the circuit court had jurisdiction over Thrasher's case. We affirm that portion of the Court of Criminal Appeals' judgment reversing the circuit court's order transferring the case to the municipal court, although we do not necessarily agree with the reasoning of the Court of Criminal Appeals on this issue. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HOOPER, C.J., and HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. COOK, J., dissents. COOK, Justice (dissenting). I dissent from the conclusion in the main opinion that an uncounseled prior misdemeanor conviction in which a sentence of imprisonment was not imposed can be subsequently used for the purpose of enhancement. On this issue, I agree with the opinion of Judge Fry. State v. Thrasher, 783 So. 2d 100 (Ala.Crim.App.1999). The Court of Criminal Appeals in Farley v. City of Montgomery, 677 So. 2d 1251 (Ala. Crim.App.1995), and Bilbrey v. State, 531 So. 2d 27 (Ala.Crim.App.1987), adopted the rule that when a prior conviction is used for the purpose of enhancement the state must prove either that the accused was represented by counsel at the prior proceeding or that counsel was waived; that rule is fundamentally sound. That rule provides a bright-line test that avoids the conflict in logic of a rule that forbids a sentence of imprisonment based on an uncounseled misdemeanor conviction but allows, through the sentence-enhancement mechanism, the imposition of a longer sentence of imprisonment based on that same uncounseled misdemeanor conviction.

August 11, 2000

c4d984fd-3bd9-40c4-a114-3674b3e876f2

Ex Parte Jim Burke Automotive, Inc.

776 So. 2d 118

1990183

Alabama

Alabama Supreme Court

776 So. 2d 118 (2000) Ex parte JIM BURKE AUTOMOTIVE, INC. (Re Clarence Ford v. Jim Burke Automotive, Inc., et al.) 1990183. Supreme Court of Alabama. August 4, 2000. *119 John Martin Galese and David A. Norris of Galese & Ingram, P.C., Birmingham, for petitioner. Garve Ivey, Jr., of Ivey & Ragsdale, Jasper, for respondent. ENGLAND, Justice. Jim Burke Automotive, Inc., a defendant in an action pending in the Perry Circuit Court, petitions for a writ of mandamus directing Judge Thomas ap R. Jones to vacate his order denying Jim Burke's motion to dismiss the case or to transfer it, and to enter an order transferring the pending action to the Jefferson Circuit Court; to vacate his order continuing Jim Burke's motion to compel arbitration, entered for the purpose of allowing the plaintiff to conduct discovery; and to vacate his order allowing general, unlimited discovery. We grant the petition in part and deny it in part. Clarence Ford purchased a 1994 model automobile from Jim Burke. Jim Burke charged a $139 "documentary fee" on the purchase. Ford secured financing for the purchase by entering a retail-installment contract with the defendants General Motors *120 Acceptance Corporation ("GMAC") and MS Dealer Services Corporation ("MS"), a Florida corporation. Ford entered the installment contract as part of his dealings with Jim Burke. In May 1999, Ford sued Jim Burke, GMAC, and MS, alleging fraud, negligence, breach of fiduciary duty, and the tort of outrage. Ford alleged in his complaint that the defendants had misrepresented that the entire "documentary fee" was paid to the defendant MS, although, in fact, Jim Burke and GMAC had earned a commission from the fee. When it answered Ford's complaint, Jim Burke moved to compel arbitration of Ford's claims. It based its motion on an arbitration provision included in the "Buyer's Order" Ford had signed when he purchased the vehicle. The provision reads: Jim Burke also filed a motion to dismiss the action, arguing that Perry County was not a proper venue, and, alternatively, a motion to transfer the case for the convenience of the parties and witnesses and in the interest of justice, pursuant to Ala. Code 1975, § 6-3-21.1. Ford purchased the vehicle in Jefferson County. In his complaint, Ford alleges that he is a resident of Perry County. Jim Burke, MS, and GMAC all do business in Alabama. However, neither MS nor GMAC challenges venue in Perry County. The trial court denied the motion to dismiss or to transfer and continued the motion to compel arbitration, for 90 days, in order to allow Ford to conduct discovery. A petition for the writ of mandamus is the proper method for challenging a trial court's denial of a motion to transfer a civil action on the basis of improper venue. See Ex parte National Sec. Ins. Co., 727 So. 2d 788 (Ala.1998). We have held: Id., 727 So. 2d at 789. Jim Burke argues that the trial court erred in denying its motion to dismiss or to transfer. In support of that motion, Jim Burke offered the affidavit of Dave Bolden, comptroller for Jim Burke, in which Bolden states, among other things, that all of the contracts and agreements relating to the purchase of the vehicle were prepared and signed in Jefferson County, that Jim Burke does no business by agent in Perry County, that Jim Burke owns no property or assets in Perry County, and that all of Jim Burke's witnesses *121 and employees with knowledge of Ford's purchase reside in Jefferson County. Ala.Code 1975, § 6-3-21.1, states: "The prevailing question of whether a case should be entertained or dismissed `depends largely upon the facts of the particular case and is in the sound discretion of the trial judge.'" Ex parte Auto-Owners Ins. Co., 548 So. 2d 1029, 1032 (Ala.1989) (quoting Restatement (Second) of Conflict of Laws § 84 at 251 (1971)). A writ of mandamus will not issue "to control or revise [a trial court's] exercise [of discretion] except in a case of abuse of discretion." Ex parte Canady, 563 So. 2d 1024, 1025 (Ala.1990). "The burden of proof on factual issues in a venue dispute is upon the party or parties challenging venue in the forum." Ex parte Wiginton, 743 So. 2d 1071, 1074 (Ala.1999). Jim Burke contends that it made a prima facie showing that the action should be transferred for the convenience of the parties and in the interest of justice, and that, because Ford offered no evidence in response, the trial court erred in failing to grant the motion to transfer. The facts in this case are almost identical to the facts in Ex parte Swift Loan & Finance Co., 667 So. 2d 706 (Ala.1995). The plaintiff in Ex parte Swift was a resident of Bullock County. He sued an automobile dealership and a finance company, in Bullock County. The defendants moved to transfer the case, alleging that neither defendant resided in or did any business in Bullock County and arguing that the case should be transferred based on the doctrine of forum non conveniens. In the present case, Ford is a resident of Perry County, and Jim Burke challenges venue in Perry County because the transaction took place in Jefferson County and any Jim Burke employees with knowledge of the transaction reside in Jefferson County. GMAC and MS have not indicated that they would suffer any hardship in litigating this case in Perry County. GMAC and MS have not challenged venue based on the forum non conveniens statute. The defendant must show that the transferee forum is significantly more convenient than the forum in which the action was brought, in order to overcome the plaintiff's right to choose the forum. See Ex parte Swift Loan & Fin., supra. The trial court held a hearing on Jim Burke's motion to dismiss or to transfer and concluded that Jefferson County would not be a more convenient venue. Because Jim Burke did not meet its burden of proving that Jefferson County would be a significantly more convenient venue, we cannot say the trial court abused its discretion in denying Jim Burke's motion to dismiss or to transfer. We deny Jim Burke's petition to the extent it sought a writ of mandamus directing the trial court to transfer the pending action. Jim Burke argues that the trial court abused its discretion when it entered a 90-day continuance of Jim Burke's motion to compel arbitration, in order for the parties to conduct discovery. The Federal Arbitration Act makes enforceable a written arbitration provision in a contract evidencing a transaction involving interstate commerce. 9 U.S.C. § 2; see Rogers Found. Repair v. Powell, 748 So. 2d 869, 871-72 (Ala.1999). However, if there is a question whether the parties actually entered an agreement to arbitrate, that question is for the court to decide. See Premiere Chevrolet, Inc. v. Headrick, 748 So. 2d 891 (Ala.1999). The trial judge did not err in allowing the parties to conduct discovery. However, he did err in failing to limit *122 the discovery to be conducted. See Jack Ingram Motors, Inc. v. Ward, 768 So. 2d 362 (Ala.1999); Universal Underwriters v. Dutton, 736 So. 2d 564 (Ala.1999); and Mutual Assurance, Inc. v. Wilson, 716 So. 2d 1160 (1998) (allowing for limited discovery without waiver of right to arbitrate). We conclude, and the parties agree, that discovery should be limited to the question whether Ford agreed to arbitrate his dispute with the defendants. We grant Jim Burke's petition to the extent it seeks an order directing the trial judge to vacate his order allowing general, unlimited discovery. PETITION GRANTED IN PART AND DENIED IN PART, AND WRIT ISSUED. HOOPER, C.J., and HOUSTON, COOK, SEE, LYONS, BROWN, and JOHNSTONE, JJ., concur. MADDOX, J., concurs in the result. [1] The reverse side of the Buyer's Order does not appear in the record.

August 4, 2000

37419bb1-7ac4-4e9d-8aa2-38b35aa756ce

Ex Parte Waples

781 So. 2d 179

1990309

Alabama

Alabama Supreme Court

781 So. 2d 179 (2000) Ex parte Samantha WAPLES. (In re Samantha Waples v. Donna Jo Pinson). 1990309. Supreme Court of Alabama. July 14, 2000. *180 Earl P. Underwood, Jr., of Underwood & Associates, P.C., Anniston, for petitioner. Ronald S. Held of Sides, Oglesby, Held & Dick, Anniston, for respondent. LYONS, Justice. Samantha Waples was a passenger in an automobile driven by Charity Pressley. The Pressley vehicle was hit from behind when Pressley was forced to stop suddenly in heavy traffic. Donna Jo Pinson was driving the vehicle that collided with the Pressley vehicle. Waples sued Pinson, alleging that Pinson had negligently caused the accident and claiming damages for injuries she says she suffered as a result of the collision. The jury returned a verdict for the defendant Pinson. Waples moved for a new trial, claiming the jury's verdict was inconsistent with the evidence presented. The trial court denied the motion, and Waples appealed. This Court transferred the case to the Court of Civil Appeals, pursuant to Ala.Code 1975, § 12-2-7(6). Citing Reed v. Boyd, 642 So. 2d 448 (Ala.1994), the Court of Civil Appeals, on September 10, 1999, affirmed, without an opinion. Waples v. Pinson (No. 2980654), 781 So. 2d 1028 (Ala.Civ.App.1999) (table). We granted certiorari review. The issue before us is whether the trial court erred in denying Waples's motion for a new trial; that motion was based on the ground that the jury's verdict was against the great weight and preponderance of the evidence. In an earlier case, this Court stated the principles applicable in this present case: Crown Life Ins. Co. v. Smith, 657 So. 2d 821, 822 (Ala.1994) (citations omitted). *181 See Morgan v. Allstate Ins. Co., 749 So. 2d 462 (Ala.Civ.App.1999). We conclude that the jury's verdict in favor of Pinson was plainly and palpably wrong. First, the uncontroverted evidence indicates that Pinson breached her duty of care and caused the collision that is the basis of this lawsuit. At trial, Pinson admitted that immediately before the collision she was traveling at approximately 25 miles per hour when the three cars in front of her stopped suddenly. She further explained that, although she applied her brakes, she could not stop and "just kind of slid into the back of [Pressley's] car." Pinson also testified that just before the accident she was traveling at a distance of about "half a car length" behind the car in which Waples was riding. The investigating police officer testified that Pinson should not have followed at a distance of less than 50 feet. The evidence shows, without dispute, that Pinson breached her duty of care and by that breach caused her vehicle to collide with the vehicle in which Waples was a passenger. Second, we conclude that the undisputed evidence indicates that Pinson's breach of duty proximately caused Waples to suffer some injury. Pressley testified that immediately following the collision Waples complained of back and neck pain. The record also indicates that after the accident Waples was upset and was crying and that she remained in the vehicle until after rescue-squad personnel had arrived to assist. The rescue personnel placed a neck brace on Waples and strapped her to a backboard before transporting her to a nearby hospital. Hospital personnel examined Waples, made X-rays, and gave her medication to relieve her pain. At trial, without opposition or contradiction, Waples entered into evidence the medical bills relating to her transportation to the hospital, the X-rays, and her treatment at the hospital. Based on this evidence, a reasonable jury could have concluded only that Waples suffered some personal injury and economic loss as the result of the collision caused by Pinson. Contributory negligence was not an issue in this case. The Court of Civil Appeals' reliance on Reed v. Boyd, 642 So. 2d 448 (Ala.1994), is misplaced. Reed is distinguishable, on its facts. Although Reed also involved an accident in which an automobile was hit from behind, the plaintiff in Reed made no complaint of injury immediately following the accident, as did Waples. Id. at 449. Furthermore, the plaintiff in Reed was not transported to a hospital directly from the scene of the accident. Id. To the contrary, in Reed the plaintiff began to complain of pain only some time after the accident. This Court held, based on the evidence, that "she presented little or no objective evidence of injury [and that] the jury could have found that the accident with Boyd did not proximately cause any injury to Reed." Id. at 449. The lack of proximate-cause evidence in Reed distinguishes that case from this casein which Waples did present such evidenceand therefore renders Reed inapplicable. The jury's verdict for Pinson is inconsistent with the undisputed evidence indicating that Pinson negligently caused the accident and the injury and loss incurred by Waples, at least to the extent of the expenses incurred in connection with transportation and emergency-room treatment. Given the evidence presented in this case, we must conclude that the trial court erred by denying Waples's motion for a new trial and that the Court of Civil Appeals erred in affirming the judgment of the trial court. The judgment of the Court of Civil Appeals is reversed, and the cause is remanded for that court to order a new trial. REVERSED AND REMANDED. *182 HOOPER, C.J., and HOUSTON, COOK, SEE, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. MADDOX, J., dissents.

July 14, 2000

25516fdd-fdb5-418e-865e-c9057277d132

Ex Parte Jim Walter Homes, Inc.

776 So. 2d 76

1981532

Alabama

Alabama Supreme Court

776 So. 2d 76 (2000) Ex parte JIM WALTER HOMES, INC., et al. (In re William J. Wade, as trustee of Mid-State Trust II, a Delaware business trust v. Earl M. Singleton, Sr., et al.; and Walesther Hutchins and Charlie Hutchins v. Jim Walter Homes, Inc., et al.) 1981532. Supreme Court of Alabama. June 30, 2000. Richard H. Gill, George W. Walker III, and J. David Martin of Copeland, Franco, Screws & Gill, P.A., Montgomery, for petitioners. *77 Andy D. Birchfield, Jr., and Mark Englehart of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for respondents. LYONS, Justice. The opinion of March 24, 2000, is withdrawn, and the following is substituted therefor. Jim Walter Homes, Inc. ("Jim Walter"); Mid-State Homes, Inc. ("Mid-State"); Best Insurers, Inc. ("Best"); and William J. Wade have filed in this Court a document styled as a petition for the writ of mandamus. We treat that document as a request for an order voiding the transfer of two cases (Sumter Circuit Court, CV-97-21 and CV-97-43) by Judge Eddie Hardaway, Jr., to Judge Richard L. Osborne. Judge Hardaway transferred the two cases to Judge Osborne after Judge Hardaway had disqualified himself from presiding over those cases.[1] We grant the petitioners' request for an order vacating Judge Hardaway's order transferring the two cases and vacating all orders entered by Judge Osborne in regard to the two cases. On April 8, 1997, Walesther Hutchins and Charlie Hutchins filed a complaint in the Sumter County Circuit Court against Jim Walter, Mid-State, Best, and other defendants. On or about March 3, 1997, Wade filed a separate action in the Sumter County Circuit Court against Earl Singleton, Sr. Singleton filed a counterclaim against Wade and named Jim Walter, Mid-State, and Best as third-party defendants. Both cases alleged various tort theories based on improper foreclosure procedures allegedly followed by Jim Walter and Mid-State in retaliation for the plaintiffs' selection of insurance providers other than Best. Both cases were initially filed in the Seventeenth Judicial Circuit and were thus assigned to Circuit Judge Eddie Hardaway, Jr., the only circuit judge regularly sitting in that circuit. (Hereinafter, the Hutchins case and the Wade case will be referred to jointly as the "Jim Walter cases.") When the Jim Walter cases were filed, the law firm of Copeland, Franco, Screws & Gill, P.A. (the "Copeland firm"), was representing Judge Hardaway as the named plaintiff in a case styled In re: Eddie Hardaway, Jr., et al. v. Robert L. Childree, in his official capacity as Comptroller of the State of Alabama, CV-94-1396. That case was pending in the Montgomery Circuit Court. The Copeland firm was also representing Jim Walter, Mid-State, and Best in the Jim Walter cases pending before Judge Hardaway. On February 6, 1998, Judge Hardaway entered an order disqualifying himself from both Jim Walter cases, stating in his order: The petitioners now before this Court objected to Judge Hardaway's assigning the cases to Judge Osborne after having disqualified himself in regard to them. In response to this objection, Judge Hardaway, on October 6, 1998, signed another *78 set of orders that noted his disqualification, but, this time, he ordered that the Jim Walter cases be set for a reassignment by the Administrative Office of Courts ("AOC"). The defendant Singleton moved to vacate the October 1998 orders and submitted a proposed revised order for Judge Hardaway's signature; however, Judge Hardaway did not sign that proposed order and did not rule on the motion. Despite Judge Hardaway's second set of orders, Judge Osborne conducted a pretrial hearing on May 24, 1999. This hearing was the first proceeding Judge Osborne conducted in the Jim Walter cases, and the petitioners here moved for Judge Osborne to recuse himself, arguing that Judge Hardaway had improperly assigned the cases to Judge Osborne. Judge Osborne denied the motion and entered an order purporting to consolidate the Jim Walter cases for trial. Jim Walter, Mid-State, Best, and Wade now seek relief from this Court. The relief they seek is in the nature of a writ of mandamus, which is an appropriate method for challenging a trial court's denial of a motion to recuse. Crawford v. State, 686 So. 2d 196 (Ala.1996). 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). This petition presents the issue whether a trial judge, who has been disqualified from presiding over a case by the Canons of Judicial Ethics, can, pursuant to Rule 13, Ala. R. Jud. Admin., appoint his successor.[2] We hold that he cannot. Rule 13, Ala. R. Jud. Admin., vests in the presiding circuit judge of a judicial circuit the authority to temporarily assign circuit- or districtcourt judges to serve in the courts of that circuit, if the presiding judge deems such an assignment necessary to assist in the orderly administration of justice. Therefore, under normal circumstances, Judge Hardaway, as the presiding circuit judge in the Seventeenth Judicial Circuit, would have had the authority to assign the Jim Walter cases to Judge Osborne. The plaintiffs in the Jim Walter cases argue that these petitioners did not object to the assignment of Judge Osborne until 15 months after that assignment had been made and, therefore, by that delay effectively waived their objection to his assignment. In support of their argument, they cite Adams v. Board of Trustees of the University of South Alabama, 676 So. 2d 1326 (Ala.Civ.App.1996), and Phillips v. Amoco Oil Co., 799 F.2d 1464 (11th Cir.1986). We find those cases distinguishable. In Adams, the Court of Civil Appeals held that a party may not "lie in wait and raise the issue of recusal after learning the outcome of the proceeding." 676 So. 2d at 1328. To allow a party to do so would allow that party to hear the outcome of the case and then object only if the outcome did not suit him. Likewise, in Phillips, the objecting party did not object until it had learned the court's ruling on a summary-judgment motion. 799 F.2d at 1472. In this case, the delay was mitigated by several factors. First, the petitioners asked that their cases be sent to the AOC for reassignment when they initially requested that Judge Hardaway disqualify himself. Second, they made their formal objection to Judge Osborne's assignment the first time he conducted a proceeding in the case. Finally, and most significantly, Judge Osborne had made no ruling on any issue in this case before the petitioners made their objection on May 24, 1999. *79 Therefore, we conclude that the petitioners did not waive their objection. Furthermore, the respondents argue that this Court, in Ross v. Luton, 456 So. 2d 249 (Ala.1984), and the Court of Civil Appeals, in Ex parte Sanders, 521 So. 2d 56 (Ala.Civ.App.1988), and Edge v. Edge, 494 So. 2d 71 (Ala.Civ.App.1986), have upheld, under Rule 13, Ala. R. Jud. Admin., assignments made by the presiding judge of the circuit after that judge had entered an order of disqualification or recusal in regard to the case being reassigned. We find those cases distinguishable from the case now before us. In Ross, the presiding judge recused himself; however, the judge never determined whether he was required to do so. The party requesting the recusal "made only general accusations of bias and prejudice" against the trial judge. 456 So. 2d at 254-55. The same kind of accusations were also made against the new judge assigned to hear the case. The Court of Civil Appeals determined that the accusations were not sufficient to warrant recusal of the second judge. Id. Moreover, the party in Ross asking for the recusal of the second judge did not seek the recusal until after that judge had entered several orders in the case. Although this Court upheld the assignment in Ross, this Court has not expressly upheld an assignment under the circumstances presented in this case. In Sanders, a child-custody case, the trial judge recused himself. The presiding judge reassigned the case; the presiding judge, however, had a "personal relationship" with the father, who was seeking custody. 521 So. 2d at 58. The wife objected to the assignment, based on the relationship of the presiding judge and her ex-husband. Id. at 56. This case is different from Sanders in that, in Sanders, the Court of Civil Appeals, while suggesting that a different course of action would have been preferable, held that the presiding judge was not disqualified under the Canons of Judicial Ethics, id. at 57; in this present case Judge Hardaway entered an order of disqualification. Finally, we note that the Edge case, likewise, does not control this present case. The Edge court deferred answering the question that is now before us, because the complaining party was held to have waived the objection by failing to raise the issue in the trial court. Id. at 72. As previously noted, the petitioners now before us did not waive the objection. Other jurisdictions have addressed the issue whether a disqualified judge can select a successor.[3] We are persuaded by the rationale stated in McCuin v. Texas Power & Light Co., 714 F.2d 1255 (5th Cir.1983), where the United States Court of Appeals for the Fifth Circuit determined that a disqualified judge could not take part in the appointment of his successor. Id. at 1257. Like Rule 13, Ala. R. Jud. Admin., the local rules at issue in McCuin were silent in regard to the procedure to be used for reassigning a case in which the presiding judge was disqualified. Judge Rubin, writing for the court, reasoned: 714 F.2d at 1261. Therefore, in order to avoid the appearance of impropriety, we hold that after a judge presiding in a particular case has been disqualified from hearing that case, under the Canons of Judicial Ethics, either voluntarily or by objection, he or she can take no further action in that case, not even the action of reassigning the case under Rule 13, Ala. R. Jud. Admin. For such a judge to make the reassignment would be contrary to Canon 3(C), because the impartiality of the reassignment might reasonably be questioned. Although we have no basis for concluding that Judge Hardaway's reassignment of the Jim Walter cases to Judge Osborne was based on any improper motive and have no reason to believe that Judge Osborne would have acted without a full adherence to his oath, the courts of this State must avoid even the slightest appearance of impropriety. The impartiality of the courts and the citizens' confidence in that impartiality are the pillars that support our legal process. We therefore hold that once the presiding judge of a judicial circuit has been disqualified from a case under the Canons of Judicial Ethics, either voluntarily or by objection, the appropriate procedure for initiating a reassignment of the case is as follows: In a circuit with more than one circuit judge, the presiding judge shall enter an order notifying the next senior judge within that circuit of the presiding judge's disqualification. A circuit judge who is so notified but who is also disqualified shall enter an order notifying the next senior judge within that circuit of that judge's disqualification. A circuit judge who is so notified and who is not disqualified shall become the judge to whom the case is assigned, unless that judge assigns the case to another judge within the circuit who agrees to take the case. In a circuit with only one circuit judge, if the district judge within the county in which the action is pending has been temporarily assigned by the presiding circuit judge to serve in circuit court pursuant to Rule 13, Ala. R. Jud. Admin., the circuit judge shall notify that district judge of the circuit judge's disqualification. If no judge with authority to hear the case is available in the county in which the action is pending, the case shall be referred to the AOC for assignment of a judge.[4] Accordingly, pursuant to Amendment No. 328, § 6.02, Ala. Const.1901, and § 12-2-7, Ala.Code 1975, authorizing this Court to issue such orders as are necessary for its general supervision of inferior courts, we vacate Judge Hardaway's February 6, 1998, orders transferring the Jim Walter cases to Judge Osborne; likewise, we vacate all orders entered by Judge Osborne in the Jim Walter cases. This action leaves in place Judge Hardaway's October 6, 1998, orders notifying the AOC of his withdrawal and requesting that both cases be reassigned. ON REHEARING EX MERO MOTU: OPINION OF MARCH 24, 2000, WITHDRAWN; OPINION SUBSTITUTED; TRANSFER ORDERS AND ORDERS ENTERED BY JUDGE OSBORNE VACATED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. [1] We note that Judge Osborne died while this request for relief was pending in this Court. Although Judge Osborne has died, the issue raised by this request for reliefhow a successor to Judge Hardaway, for purposes of hearing the two cases, is to be selected remains unresolved. Thus, notwithstanding Judge Osborne's death, we still must decide the question presented here. [2] The question whether the circumstances surrounding the Jim Walter cases warranted Judge Hardaway's disqualification is not before us. [3] See United States v. O'Keefe, 128 F.3d 885 (5th Cir.1997) (holding that a recused judge can take no further discretionary action in the case); Arnett v. State, 638 P.2d 1133 (Okla. Crim.App.1982) (citing an Administration of Courts Rule that forbids a disqualified judge from participating in the assignment of the case); Stern Bros., Inc. v. McClure, 160 W.Va. 567, 236 S.E.2d 222 (1977) (holding that a recused judge could not advise the chief justice on his assignment of the case). [4] Because the late Judge Osborne was not the district judge within the county in which this action was pending, he could not have been assigned the case under the test announced today.

June 30, 2000

3eb39351-a1f9-4bae-9b05-d8193218894a

American Termite & Pest Control, Inc. v. Riley

775 So. 2d 179

1990490

Alabama

Alabama Supreme Court

775 So. 2d 179 (2000) AMERICAN TERMITE AND PEST CONTROL, INC. v. Glen RILEY and Suzette Riley. 1990490. Supreme Court of Alabama. July 21, 2000. *180 William A. Austill and Joseph E.B. Stewart of Maddox, Austill, Parmer & Lewis, P.C., Birmigham, for appellant. J. Michael Rediker and Patricia Diak of Ritchie & Rediker, L.L.C., Birmingham, for appellees. SEE, Justice. The defendant, American Termite and Pest Control, Inc. ("American Termite"), appeals from the trial court's denial of its motion to stay court proceedings and to compel the plaintiffs to submit their claims to arbitration. We affirm. Glen Riley and Suzette Riley sued American Termite and one of its employees, Larry Mote,[1] in the Shelby Circuit Court; they sued on behalf of themselves and others similarly situated, seeking monetary and injunctive relief. The Rileys asserted claims arising "out of the [alleged] pattern and practice by [the] defendants of failing to provide the termite services they are required by statute, regulations and contracts to provide, of concealing such fact, and in connection therewith of failing to prepare and file accurate treatment, inspection and reinspection reports or certifications." On September 27, 1997, the trial court entered an order conditionally certifying the action as a class action. However, on January 13, 1998, the trial court entered an order withdrawing the conditional class certification. American Termite moved to stay the court proceedings and to compel the members of the putative class to submit their claims to binding arbitration. On October 28, 1999, the trial court denied that motion, on the grounds that enforcement of the arbitration clause in American Termite's contract would violate public policy and would be unconscionable, because of the manner in which American Termite acquired customers' signatures on arbitration agreements after this litigation began, citing Ex parte Hopper, 736 So. 2d 529 (Ala.1999). American Termite appealed. American Termite argued to the trial court, and argues to this Court, that it is entitled to compel arbitration of the claims of those absent members of the putative class whose contracts with American Termite contain arbitration clauses. However, it is undisputed that the Rileys' contract with American Termite does not contain an arbitration clause. The trial court's ruling applies only to the parties before the court; because there was no certified class when the trial court ruled on American Termite's motion, its ruling does not apply to the absent members of the putative class. See City of Hueytown v. Burge, 342 So. 2d 339, 344 (Ala.1977) ("There having been no [Rule 23, Ala. R.App.P.,] determination and order, the only [plaintiffs] before the Court were the individuals so named, and the judgment could extend only to them."), overruled on other grounds by State Dep't of Revenue v. Reynolds Metals Co., 541 So. 2d 524 (Ala. 1988); accord Bagley v. City of Mobile, 352 So. 2d 1115, 1118 (Ala.1977). An appellate court will affirm the judgment of a trial court if it is correct for any reason. See Smith v. Equifax Servs., Inc., 537 So. 2d 463, 465 (Ala.1988). Because the trial court's ruling is correct as to the Rileys, the only plaintiffs before the court, it is due to be affirmed.[2] AFFIRMED. HOOPER, C.J., and HOUSTON, BROWN, and ENGLAND, JJ., concur. [1] Mote is not a party to this appeal. [2] We note that the matter of class certification, including the question whether the Rileys can adequately represent the putative class, is not before us. Regarding the adequacy-of-class-representation issue, see Cutler v. Orkin Exterminating Co., 770 So. 2d 67 (Ala. 2000), holding that the named plaintiffs, who did not have arbitration agreements with the defendant, could not adequately represent the absent class members who did have arbitration agreements with the defendant.

July 21, 2000

cf1986af-eb97-4517-bce8-afad2c630ac6

UNITED WISCONSIN LIFE INS. CO. v. Beaty

775 So. 2d 191

1990925

Alabama

Alabama Supreme Court

775 So. 2d 191 (2000) UNITED WISCONSIN LIFE INSURANCE COMPANY et al v. Peggy D. BEATY and John F. Beaty. 1990925. Supreme Court of Alabama. July 21, 2000. *192 Lynn Etheridge Hare and Kori L. Clement of Hare, Hair & Clement, P.C., Birmingham, for appellants. W. Lee Pittman and J. Chris Cochran of Pittman, Hooks, Dutton & Hollis, P.C., Birmingham, for appellees. COOK, Justice. The defendants appeal from an order denying their motion to compel the arbitration of claims presented in an action commenced by John Beaty and Peggy Beaty. That order stated as follows: "[Id. at 276.] Such language is necessary to ensure that there was an actual `meeting of the minds' that disputes relating to past events must be arbitrated. In other words, the party seeking to compel arbitration [as] to past events must have affirmatively informed the other party that the arbitration agreement will apply retroactively. (Capitalization in original; other emphasis added.) We agree with the holding and rationale of the trial court, and we adopt its order as the opinion of this Court. Consequently, the order is affirmed. AFFIRMED. HOUSTON, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur HOOPER, C.J., concurs in the result. MADDOX and SEE, JJ., dissent. HOOPER, Chief Justice (concurring in the result). I agree with that portion of the opinion holding that the arbitration provision does not apply retroactively. However, I do not agree with the portion of the opinion stating that the arbitration provision is too narrow to apply to the Beatys' claims. The provision clearly applies to disputes arising out of or relating to the policy, the certificate, or the company's insurance practices. I would not read the language regarding the appeal procedure as limiting the entire provision to only disputes over denied claims. Therefore, I concur in the result.

July 21, 2000

11fc1db9-5f0b-4094-926c-9b62d8969833

US PIPE AND FOUNDRY CO., INC. v. Curren

779 So. 2d 1171

1971948

Alabama

Alabama Supreme Court

779 So. 2d 1171 (2000) UNITED STATES PIPE AND FOUNDRY COMPANY, INC. v. Pete CURREN, Jr. 1971948. Supreme Court of Alabama. June 23, 2000. Rehearing Denied September 1, 2000. *1172 Robert K. Spotswood and Kenneth M. Perry of Bradley, Arant, Rose & White, L.L.P., Birmingham, for appellant. J. Gusty Yearout and John G. Watts of Yearout, Myers & Traylor, P.C., Birmingham; and Mac Parsons, Bessemer, for appellee. BROWN, Justice. United States Pipe and Foundry Company, Inc. ("U.S. Pipe"), is the defendant in an action pending in the Jefferson Circuit Court, Bessemer Division. It appeals from an order denying its motion to compel arbitration.[1] We reverse and remand. Shortly after beginning employment with U.S. Pipe, Pete Curren, Jr., entered into an automatic-payroll-deduction plan, whereby a portion of his paycheck would be deducted and deposited into his savings account with U.S. Pipe Credit Union. The payroll-deduction plan was offered as an employee benefit, and Curren participated in the plan for several years. On January 2, 1997, Curren sued U.S. Pipe, alleging conversion, fraud, and breach of contract, all related to its administration of the payroll-deduction plan. The claims were based upon an allegation that U.S. Pipe had failed to transfer the deductions to the credit union in a timely manner. On February 6, 1997, U.S. Pipe answered, pleading as an affirmative defense that "[Curren's] claims under the LMRA [Labor Management Relations Act of 1947] are barred by his failure to utilize the grievance and arbitration procedure contained in the collective bargaining agreements between U.S. Pipe and the union which represented [Curren] and other bargaining unit employees." U.S. Pipe also moved to vacate the court's conditional order certifying a class and removed the case to the United States District Court for the Northern District of Alabama, arguing that the payroll-deduction plan was covered under a November 1995 collective bargaining agreement ("CBA") entered into by U.S. Pipe and the United Steel Workers of America ("USWA"). In its notice of removal and in its accompanying *1173 brief, U.S. Pipe referred to the arbitrability of Curren's claims, stating that the "grievance and arbitration provisions of the Collective Bargaining Agreements applicable to [Curren's] employment with U.S. Pipe expressly reach `all disputes that may arise between them relevant to the provisions' of the Agreements." Thereafter, Curren moved to remand the case to the state court, arguing that the CBA was inapplicable because, he contended, the underlying claims were unrelated to the obligations and duties set forth in the CBA. The parties' attorneys met on April 11, 1997, pursuant to Rule 26(f), Fed.R.Civ.P., to formulate a comprehensive discovery schedule to govern the litigation in the district court. The scheduling agreement, signed by U.S. Pipe's attorney and filed with the district court, stated: "The cases[2] should be ready for trial by June 1998 and at this time are expected to take approximately 14 days each." In September 1997, the federal district court remanded the case to the state court.[3] On December 15, 1997, U.S. Pipe filed a motion to stay the proceedings and to compel arbitration, pursuant to the terms of what it alleged to be a "valid, irrevocable, and enforceable contract entered into by Curren, through his bargaining representative." Curren filed an opposition to the motion to compel arbitration, arguing that the dispute was not within the terms of the CBA, but that even if it was, U.S. Pipe had waived its right to compel arbitration. On June 23, 1998, the trial court held a hearing and afterwards entered an order denying U.S. Pipe's motion to compel arbitration. The record does not reflect the court's reason for denying the motion to compel arbitration; the court merely made an entry on the case action summary stating that that motion had been denied. U.S. Pipe argues that the trial court erred in denying its motion to compel arbitration because, it says, an arbitration provision in the CBA clearly encompasses Curren's claims. In 1995, the USWA and U.S. Pipe entered into a CBA governing hours of work, wages, and other terms and conditions of employment. The CBA also outlined grievance procedures, expressly stating that unresolved disputes would be submitted to arbitration.[4] The preamble contained the following language: U.S. Pipe argues that the payroll-deduction plan is a benefit of employment, that it is closely related to wages and has been adopted into the CBA through custom, and that it is, therefore, subject to the grievance procedures set forth in the CBA. In support of this argument, U.S. Pipe offered the uncontradicted affidavits of Benny Smith, U.S. Pipe's personnel director, and Mike Stanley, international representative *1174 for the USWA. Both Smith and Stanley stated that any disputes regarding the manner in which U.S. Pipe administered payroll deductions were subject to the grievance procedures contained in the CBA. Stanley concluded that the payroll deduction plan was an employee benefit and that it was "the view of the union that this benefit, through custom and practice, has risen to the level of an implied term in the CBA." Curren presented nothing to dispute this assertion, other than a copy of the federal court's order remanding the case to the state court and a mere allegation that his claims concern a separate agreement he entered into with U.S. Pipe, i.e., the payroll-deduction plan, that is not governed by the CBA. Upon close review, Curren's claims appear to challenge the manner in which U.S. Pipe administered a wage-related employee-benefit program, specifically, a payroll-deduction plan. The CBA states that it is "desire of the parties ... to abide by the [CBA] in the settlement of any and all disputes that may arise between them relevant to the provisions incorporated herein." We find that the provisions of the CBA are relevant to Curren's allegation that U.S. Pipe failed to transfer payroll deductions in a timely manner. Accordingly, we conclude that Curren's claims are subject to the arbitration provision contained within the CBA. Curren argues that U.S. Pipe waived any right it may have had to compel arbitration, by not moving in the federal court to compel arbitration. In support of that argument, Curren cites Ex parte Hood, 712 So. 2d 341 (Ala.1998). In determining whether a party has waived its right to arbitrate, this Court has held: Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So. 2d 897, 899 (Ala.1995) (citations omitted). The courts will not lightly infer a waiver of the right to compel arbitration; thus, the burden on the party seeking to prove waiver is a heavy one. Mutual Assurance, Inc. v. Wilson, 716 So. 2d 1160 (Ala.1998). The present case, while factually somewhat similar, is clearly distinguishable from Ex parte Hood. In Ex parte Hood, the defendant failed to give notice of its intention to enforce the arbitration agreement until three months after the case had been removed to the federal court and two months after the parties' counsel had met to discuss how the federal litigation would proceed. This Court stated: 712 So. 2d at 346. Under the particular circumstances of Ex parte Hood, this Court concluded that the defendant, by its unexplained delay, after removal, in seeking to resolve the controversy through arbitration, had waived its right to compel arbitration. As noted earlier in this opinion, U.S. Pipe asserted the affirmative defense of arbitration in its initial answer. See Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So. 2d 1, 3 (Ala.1986)(indicating that a party clearly has not waived the right to arbitrate if it has asserted that right in its initial answer on the merits). U.S. Pipe referred to arbitration in its notice of removal and in its discovery-plan report. We can find no persuasive evidence indicating that U.S. Pipe intended to waive or abandon its right to seek arbitration in accordance with the grievance procedure set forth in the CBA. For the foregoing reasons, the trial court's order denying U.S. Pipe's motion to compel arbitration is reversed and the cause is remanded. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, SEE, LYONS, and ENGLAND, JJ., concur. COOK, J., dissents. COOK, Justice (dissenting). United States Pipe and Foundry Company appeals from the trial court's denial of its motion to compel arbitration. The plaintiff, an employee of U.S. Pipe, sued U.S. Pipe, alleging fraud, breach of contract, and conversion of his payroll-deduction moneys that were to be transferred to his savings account at the company credit union. U.S. Pipe argues that, under the Labor Management Relations Act of 1947 ("LMRA"), the plaintiff's claims are preempted by the grievance and arbitration procedure contained in the collective bargaining agreement ("CBA") between U.S. Pipe and the union. I do not agree that the plaintiffs claims fall within the CBA. The plaintiff entered into an individual agreement with U.S. Pipe allowing for an automatic deduction from his wages; that individual agreement did not provide for arbitration as a grievance mechanism. We should not conclude that this individual agreement was within the scope of the CBA, simply on the basis that it involved the plaintiffs "wages." The CBA governs "hours of work, wages, and other terms and conditions of employment." However, the plaintiffs claims are not created by the terms of the CBA. Therefore, there is no basis for a conclusion that his claims are covered by the CBA. [1] A direct appeal is the proper procedure by which to challenge a trial court's denial of a motion to compel arbitration. A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358 (Ala. 1990). [2] On February 12, 1997, U.S. Pipe filed a motion to consolidate Curren's case with a case filed by Victor Argo. See Jim Walter Resources, Inc., v. Argo, 779 So. 2d 1167 (Ala. 2000), decided this date. [3] The federal court's order states, in pertinent part: "Because these claims do not implicate obligations or duties created by the express or implied terms of the relevant Collective Bargaining Agreements, there is no basis for federal jurisdiction. Thus, these cases were improperly removed and the motions to remand are hereby GRANTED." [4] The CBA contains the following provision: "If the grievance is not settled with any of the three steps outlined above, the Union shall have ten (10) working days from the date the Union Representative receives the Company's written answer in Step 3, to submit the grievance to arbitration."

June 23, 2000

050552f2-8890-4165-8d98-abcc125a134c

Riscorp, Inc. v. Occupational Safety Ass'n of Alabama Workmen's Compensation Fund

796 So. 2d 1062

1980524, 1980691

Alabama

Alabama Supreme Court

796 So. 2d 1062 (2000) RISCORP, INC., and Riscorp National Insurance Company v. OCCUPATIONAL SAFETY ASSOCIATION OF ALABAMA WORKMEN'S COMPENSATION FUND. Ex parte Riscorp National Insurance Company and Riscorp, Inc. (Re Occupational Safety Association of Alabama Workmen's Compensation Fund v. Peter D. Norman et al.) 1980524 and 1980691. Supreme Court of Alabama. June 30, 2000. Rehearing Denied May 4, 2001. Warren B. Lightfoot, Mac M. Moorer, William H. Morrow, and Ivan B. Cooper of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellants/petitioners Riscorp, *1063 Inc., and Riscorp National Insurance Company. Kenneth J. Mendelsohn and Thomas E. James of Jemison & Mendelsohn, P.C., Montgomery; and William R. Chandler of Webb & Eley, P.C., Montgomery, for appellee/respondent Occupational Safety Association of Alabama Workmen's Compensation Fund. ENGLAND, Justice. Riscorp, Inc., and Riscorp National Insurance Company appeal from an order granting a preliminary injunction. Those parties also have filed a mandamus petition related to an arbitration order. We affirm the order granting the injunction and dismiss the petition for the writ of mandamus. On August 20, 1997, the Occupational Safety Association of Alabama Workmen's Compensation Fund ("the Fund"), a self-insurance workers' compensation fund, established under § 25-5-9, Ala.Code 1975, filed a complaint against Riscorp National Insurance Company and Riscorp, Inc. (together hereinafter referred to as "Riscorp"), and Peter D. Norman. Later the Fund amended its complaint to add as defendants Norman's partner Thomas Albrecht; Independent Association Administrators, Inc. ("IAA"); and Sterling Capital Advisors, Inc. ("Sterling Capital"), and its managing director Gregory A. Weir. The complaint as last amended stated these counts: (1) breach of contract, (2) demand for an accounting, (3) fraud, (4) breach of fiduciary duty, (5) negligence/wantonness, and (6) suppression. The Fund's claims against Riscorp arose from a contract entered into between the Fund and Riscorp entitled "Loss Portfolio Transfer Agreement" ("LPTA"). This agreement transferred the assets of the Fund to Riscorp; it was signed only by Riscorp and the Fund. The LPTA contains an arbitration provision, which reads: On October 9, 1997, Riscorp filed a motion to compel arbitration and to stay proceedings, including discovery. Later, the nonsignatory defendants filed motions to compel arbitration as to the claims against them. These motions by the nonsignatories were denied by the trial court; this Court has today affirmed that denial. See Norman v. Occupational Safety Ass'n of Alabama Workmen's Compensation Fund 776 So. 2d 788 (Ala.2000). The circuit judge entered an order on November 25, 1997, upon the stipulation of the parties, staying the case pending settlement negotiations and mediation between the parties. The order provided that "if, at the end of said 90 day period (from the date of November 25, 1997), the parties have not settled, arbitration shall commence, provided that any party may apply to the Court for a ruling on any motion referred to in paragraph 4." The motions referred to in paragraph 4 included the motions to compel arbitration filed by the nonsignatory defendants. On July 13, 1998, pursuant to the terms of the arbitration agreement, the Fund gave Riscorp notice of a "demand" for arbitration and subsequently appointed an arbitrator. After Riscorp neglected to select an arbitrator within the time set out in the arbitration agreement, the Fund exercised its contractual right to select the second arbitrator. On September 23, 1998, the trial judge granted Riscorp's motion to compel arbitration and denied the motions to compel arbitration with respect to the nonsignatory parties. On October 7, 1998, Riscorp informed the Fund that it denied receiving a proper notice of "demand" for arbitration, and Riscorp filed a "demand" for arbitration with the American Arbitration Association ("AAA"). The Fund characterizes Riscorp's demand to the AAA as a desperate attempt on its part to have the AAA exercise some form of "jurisdiction" over this arbitration, because Riscorp had neglected to timely appoint an arbitrator. The Fund filed its own motion to compel arbitration, on October 6, 1998. In this motion, the Fund asked the trial judge to direct Riscorp to arbitrate before the properly appointed arbitrators. The trial judge held a hearing and, on November 5, 1998, he granted the Fund's motion to compel arbitration, ordering: "All of the requirements in the arbitration provision of the contract are required to be followed" and that "The Commercial Arbitration Rules will govern matters not contained or contemplated by the parties." Riscorp did not at that time or soon thereafter file a mandamus petition contesting this order. On November 18, 1998, the Fund applied for a temporary restraining order and moved for a preliminary injunction to prohibit the AAA from administering the arbitration. The trial judge issued the TRO on November 18, 1998, and set the motion for a preliminary injunction for a *1065 hearing on November 24, 1998. The trial judge allowed Riscorp to intervene in the preliminary-injunction matter. In an order dated December 1, 1998, the trial court granted the Fund's motion for a preliminary injunction and prohibited the AAA from administering the arbitration. Riscorp appealed (No. 1980524). On January 11, 1999, Riscorp filed in this Court an "emergency motion" to stay arbitration proceedings. The Fund objected, pointing out that Riscorp had not challenged the order of November 5, 1998, by seeking a writ of mandamus. The Fund contended that the trial court could not have abused its discretion in entering against a third party an injunction that merely carried out its prior order granting the Fund's motion to compel. On January 27, 1999, Riscorp filed a petition for a writ of mandamus (No. 1980691), stating: "The Plaintiff has taken the position that Riscorp can only raise these issues by filing a petition for writ of mandamus. Riscorp files this petition to erase any doubt that all issues are properly before this Court." This Court stayed all arbitration proceedings pending resolution of the related cases before us (cases 1980524 and 1980691, dealt with in this opinion; and cases 1980076, 1980175, and 1980272, dealt with in the Norman opinion, supra). We first consider whether the trial court abused its discretion in granting the Fund's motion for a preliminary injunction. A preliminary injunction will not be disturbed on appeal, absent an abuse of discretion. John Lloyd & Co. v. Stringer, 456 So. 2d 1076 (Ala.1984), citing Alabama Educ. Ass'n v. Board of Trustees of the Univ. of Alabama, 374 So. 2d 258 (Ala. 1979). The Fund contends that the trial court entered the injunction because of Riscorp's continued failure and refusal to comply with the arbitration agreement. When the trial court, on November 5, 1998, granted the Fund's motion to compel arbitration, it ruled on the issues Riscorp raises in the two appellate proceedings now before this Court. Riscorp's remedy at that time was to file a petition for a writ of mandamus, challenging the trial court's order granting the motion to compel. Long v. Industrial Dev. Bd., 619 So. 2d 1387, 1388 (Ala.1993). The petition for the writ of mandamus was not filed until January 27, 1999, some 83 days later. After carefully studying the record, we cannot conclude that the trial judge abused his discretion in entering the injunction. This is a complicated matter requiring able management by the trial judge. The trial judge had ordered Riscorp to arbitrate under the arbitration agreement, and Riscorp had failed to do so. It was clearly the province of the trial judge to grant the injunction to enforce his order to arbitrate under the LPTA. A trial judge assigned a case of the magnitude of the case out of which the proceedings now before us arise is entrusted with a monumental task in simply managing the case. Justice Lyons, writing specially in Med Center Cars, Inc. v. Smith, 727 So. 2d 9 (Ala.1998), spoke to a trial court's wide discretion in managing a case by either staying or not staying judicial proceedings involving both arbitrable and nonarbitrable issues: Id. at 21. (Citations omitted.) We cannot say the trial judge abused his discretion in handling this matter. We next consider Riscorp's petition for the writ of mandamus. The Fund argues that the petition must be dismissed on the basis that it was not timely filed. The Fund notes that the petition was filed 83 days after the trial court had entered the order on November 5, 1998, compelling Riscorp to arbitrate under the terms of the LPTA and only 19 days before the arbitration hearing was originally set. The Fund cites Long v. Industrial Development Board, 619 So. 2d 1387 (Ala. 1993). In that case, Junius Long sued the Industrial Development Board of the Town of Vincent and H.L. Fuller Construction Company for the enforcement of a lien. The trial court granted Fuller's motion to compel arbitration and for a stay of the proceedings, pursuant to an arbitration agreement between the parties. Id. at 1387. Long did not take the necessary steps to comply with the arbitration order, and Fuller filed a motion to enforce the order compelling arbitration. In July 1992, the trial court granted Fuller's motion. Long appealed. This Court held that no appeal lies from the grant of a motion to compel arbitration. The proper procedure is to petition for a writ of mandamus: Id. at 1388. Thus, the question becomes whether Riscorp's petition was timely filed. Riscorp argues that a petition for the writ of mandamus must be filed within a reasonable time, and the Fund responds with the argument that an 83-day delay is not reasonable. In A.G. Edwards & Sons, supra, this Court stated: 558 So. 2d at 360-61. While the specific issue in A.G. Edwards was the time for appealing from the denial of a motion to compel arbitration, the holding and the language of the opinion indicate that a party challenging the granting of a motion to compel arbitration has no greater time in which to challenge the trial court's order than one who has been denied the opportunity to arbitrate. Id. The order granting the preliminary injunction is affirmed; the petition for the writ of mandamus is dismissed as untimely. COOK and JOHNSTONE, JJ., concur. SEE and LYONS, JJ., concur in the result. HOOPER, C.J., dissents.

June 30, 2000

6b07e3b6-e569-44f7-a2a7-96ad8b0f9881

Norman v. Occupational Safety Association of Alabama Workmen's Compensation Fund

776 So. 2d 788

1980076, 1980175, 1980272

Alabama

Alabama Supreme Court

776 So. 2d 788 (2000) Peter D. NORMAN and Thomas Albrecht v. OCCUPATIONAL SAFETY ASSOCIATION OF ALABAMA WORKMEN'S COMPENSATION FUND. Independent Association Administrators, Inc. v. Occupational Safety Association of Alabama Workmen's Compensation Fund. Sterling Capital Advisors, Inc., and Gregory A. Weir v. Occupational Safety Association of Alabama Workmen's Compensation Fund. 1980076, 1980175 and 1980272. Supreme Court of Alabama. June 30, 2000. *789 J. Michael Rediker, Thomas L. Krebs, and Michael C. Stotnicki of Ritchie & Rediker, L.L.C., Birmingham; and Thomas G. Mancuso of Rushton, Stakley, Johnston & Garrett, P.A., Montgomery, for appellant Peter D. Norman and Thomas Albrecht. James N. Walter, Jr., and R. Brook Lawson III of Capell & Howard, P.C., Montgomery, for appellant Independent Association Administrators, Inc. David R. Boyd and Beth Moscarelli of Balch & Bingham, L.L.P., Montgomery, for appellant Sterling Capital Advisors, Inc., and Gregory A. Weir. Kenneth J. Mendelsohn and Thomas E. James of Jemison & Mendelsohn, P.C., Montgomery, for appellee. ENGLAND, Justice. The sole question presented is whether the plaintiff, the Occupational Safety Association of Alabama Workmen's Compensation Fund ("the Fund") must arbitrate its claims against the defendants Peter D. Norman; Thomas Albrecht; Independent Association Administrators, Inc. ("IAA"); and Sterling Capital Advisors, Inc. ("Sterling Capital"), and its managing director, Gregory A. Weir. These defendants are nonsignatories to a "Loss Portfolio Transfer Agreement" between the Fund and Riscorp National Insurance Company (a subsidiary of Riscorp, Inc.) ("Riscorp"), an agreement that contains an arbitration clause. The trial judge denied the nonsignatory defendants' motions to compel arbitration. We affirm. The plaintiff is a self-insurance workers' compensation fund, established in February 1992, under § 25-5-9, Ala.Code 1975, to allow certain businesses to join together for the purpose of providing and receiving workers' compensation coverage. Initially, only four companies were involved. By 1996, the Fund had grown to 2,000 businesses, with $45 million in annual premiums. At that time, the Fund was one of the two largest self-insured funds in Alabama. The Fund entered into an "Administrative Services Agreement" (which contains no arbitration clause) with the defendant IAA. The agreement provides that IAA shall "establish and coordinate necessary procedures and practices to be duties of the administrator required by the Bylaws, this Agreement and applicable state regulations." In addition, IAA was to furnish an administrator; Peter D. Norman became *790 the first administrator of the Fund. The Fund contends that in the summer of 1996, Norman advised the Fund that it would be in its best interest to transfer its workers' compensation insurance contracts to the defendant Riscorp. The Fund alleges that, based upon the representations made by the defendant Norman, the members of the Fund's board of trustees voted to transfer all of the Fund's contracts for workers' compensation coverage to Riscorp. At Norman's suggestion, the Fund engaged the defendant Sterling Capital to render a "fairness opinion" on the proposed transfer agreement, and the study for that fairness opinion was performed by the defendant Gregory A. Weir, managing director of Sterling Capital. Weir issued an opinion stating that the proposed terms of the "Loss Portfolio Transfer Agreement" ("LPTA"), the contract that would transfer all of the Fund's contracts for workers' compensation to Riscorp, were fair for the Fund from a financial point of view. The Fund and Riscorp executed the LPTA on August 26, 1996. Only these two parties were signatories to the LPTA.[1] The LPTA contains, as Article 16, an arbitration provision, which reads in pertinent part: On August 20, 1997, the Fund sued Riscorp, IAA, and Peter D. Norman. Its complaint stated these counts: (1) breach of contract, (2) demand for an accounting, (3) fraud, (4) breach of fiduciary duty, (5) negligence/wantonness, and (6) suppression. The Fund alleged that, unbeknown to the Fund, at the same time Norman was representing to the trustees of the Fund that the Fund should transfer all of its contracts to Riscorp, Norman was negotiating a deal with Riscorp for the sale of IAA to the Riscorp defendants, a deal by which Norman and his partner would receive approximately $10.9 million in cash and stocks. The Fund alleged that Norman and IAA had a conflict of interest and breached their fiduciary duties under the Administrative Services Agreement by recommending that the Fund transfer its contracts to Riscorp. On July 31, 1998, the Fund amended the complaint to add three new defendants: Thomas Albrecht (Norman's partner) and Sterling Capital and its managing director, Gregory A. Weir. The claim against Sterling Capital arose out of the letter agreement engaging Sterling Capital to perform a fairness opinion for the Fund. The defendants moved to compel arbitration, based upon Article 16 of the LPTA. The trial judge granted Riscorp's motion to compel arbitration, but denied the motions of the nonsignatory defendants. The nonsignatory defendants appealed from the order denying their motions. The nonsignatory defendants argue that this appeal is controlled by Ex parte Napier, 723 So. 2d 49 (Ala.1998). In Napier, this Court held that the plaintiffs' claims against the signatory defendants and those against the nonsignatory defendants were sufficiently intertwined that all claims must be arbitrated. Id. at 53. However, the arbitration clause in Napier is distinctly different from that in the present case, in that the clause in Napier is broader than the clause in the present *791 case. The clause at issue in Napier provided: 723 So. 2d at 51. The clause in Napier was particularly broad, encompassing not only "all disputes, claims or controversies" but also "the relationships that result from [the][c]ontract." See 723 So. 2d at 53, citing Ex parte Martin, 703 So. 2d 883, 886 (Ala.1996). The law relating to a nonsignatory to an arbitration clause is well established. This Court has never held that a nonsignatory could compel arbitration with a signatory based on an arbitration agreement that is as narrow and restricted as the agreement here is. The agreement found at Article 16 of the LPTA contains clear, unambiguous, and narrow language requiring arbitration between the Fund and Riscorp, the only signatories. The agreement specifies that arbitration will occur "between the Fund and the insurer [Riscorp]." They are the only parties to this agreement. Other language in the agreement (language not quoted above) specifies that "each party" shall appoint an arbitrator. This Court has consistently held that a limited arbitration clause, such as the one before us, that specifically references only the signing parties, does not encompass nonsignatory defendants; Norman, Albrecht, IAA, Sterling Capital, and Weir are nonsignatory defendants. Med Center Cars, Inc. v. Smith, 727 So. 2d 9 (Ala.1998); Prudential Sec., Inc. v. Micro Fab, Inc., 689 So. 2d 829 (Ala.1997); Ex parte Martin, supra, 703 So. 2d 883; Ex parte Jones, 686 So. 2d 1166 (Ala.1996). The arbitration agreement in this case is very similar to that in Med Center Cars, Inc. v. Smith, supra. In that case, a class action, Kimberly Smith had signed an arbitration agreement limited to "disputes and controversies of every kind and nature between buyer and seller." 727 So. 2d at 13. This Court ruled that the signatories were bound by the arbitration clause, but that the language of that clause was not broad enough to encompass claims against the nonsignatory defendants: Med Center Cars, at 19. (Emphasis added in Med Center Cars omitted here.) The nonsignatory defendants argue that the doctrine of equitable estoppel allows a nonsignatory to force a signatory to arbitrate if the plaintiff's claims are "intimately founded in and intertwined with the underlying contract obligations," quoting the opinions of the United States Court of Appeals for the Eleventh Circuit in McBro Planning & Development Co. v. Triangle Electrical Construction Co., 741 F.2d 342, 344 (11th Cir.1984), and Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir.1993). The United States District Court in Boyd v. Homes of Legend, Inc., 981 F. Supp. 1423 (M.D.Ala.1997), explained the *792 application of equitable estoppel in this context, as follows: 981 F. Supp. at 1432-33. (Citations omitted.) Neither of these scenarios is present in this case. The common thread running through the cases cited by the nonsignatory defendants is that in each case the duties and obligations of the nonsignatories seeking to compel arbitration arose under the contract containing the arbitration agreement. The nonsignatory defendants in this present case contend that their obligation to the Fund arose under the LPTA and thus that the plaintiff's claims are "intimately founded in and intertwined with" that contract obligation. However, the record indicates otherwise. Here, the duties and obligations as between the Fund and these nonsignatory defendants arose out of separate agreements between the Fund and these defendantsseparate agreements that did not contain arbitration clauses. The duties and obligations that Norman, Albrecht, and IAA are accused of breaching arose not from the LPTA, but from the Fund's bylaws and from the Administrative Services Agreement, a separate contract between the Fund and IAA, which does not contain an arbitration provision. The Fund's claims against Sterling Capital and Gregory Weir arose from an engagement letter and from their agreement to render a fairness opinion for the Fund. Thus, the Fund's claims against the nonsignatory defendants do not arise out of the LPTA, but out of other contracts, which do not contain arbitration provisions. The trial court properly denied the nonsignatory defendants' motions to compel arbitration. AFFIRMED. HOUSTON, COOK, and JOHNSTONE, JJ., concur. SEE and LYONS, JJ., concur in the result. HOOPER, C.J., and MADDOX, J., dissent. [1] Although counsel for Peter D. Norman argues that Norman is a signatory, he was merely a witness.

June 30, 2000

38fa680a-3cbf-4cae-8da9-b9c925a44c43

Green Tree Financial Corp. v. Shoemaker

775 So. 2d 149

1980978

Alabama

Alabama Supreme Court

775 So. 2d 149 (2000) GREEN TREE FINANCIAL CORPORATION v. Judie Gayle SHOEMAKER and Olen McPherson. 1980978. Supreme Court of Alabama. July 14, 2000. Robert A. Huffaker and Rachel Sanders-Cochran of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant. Ira B. Colvin, Reform, for appellees. HOUSTON, Justice.[1] Judie Shoemaker and Olen McPherson ("the plaintiffs") purchased a mobile home on February 25, 1995. The purchase was financed by the defendant, Green Tree *150 Financial Corporation ("Green Tree").[2] In connection with the purchase of this mobile home, the plaintiffs executed a "Manufactured Home Retail Installment Contract and Security Agreement," which listed the seller of the mobile home as Melody Mobile Homes, Inc., and the assignee of the contract as Green Tree. On October 1, 1998, the plaintiffs sued Green Tree, alleging that Green Tree had invaded their privacy. The plaintiffs had become delinquent in their monthly payments under the contract; they allege that after they became delinquent, Green Tree began a systematic course of harassing them and invading their privacy. On November 12, 1998, Green Tree moved to compel arbitration of the plaintiffs' claims; the court denied that motion on January 22, 1999. Green Tree moved the trial court to alter, amend, or vacate its order. The trial court denied the motion, and Green Tree now appeals the denial of its motion to compel arbitration. We reverse and remand. In Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995), the United States Supreme Court held that the Federal Arbitration Act ("FAA") governs all contracts falling within Congress's power to regulate under the Commerce Clause. We have since recognized that an arbitration provision will be enforced in Alabama to the extent that enforcement is required by federal law. See, Allied-Bruce Terminix Cos. v. Dobson, 684 So. 2d 102 (Ala.1995). As part of the Manufactured Home Retail Installment Contract and Security Agreement, the plaintiffs agreed to an arbitration provision, which stated: (Capitalization original; other emphasis added.) The plain language of this provision requires the plaintiffs to submit to arbitration all controversies that arise from, or relate to, the contract. That language clearly encompasses the plaintiffs' claim alleging invasion of privacy, a claim that arose out of the underlying business transaction of collecting delinquent monthly payments. In refusing to enforce the arbitration provision, the trial court relied upon Ex parte Discount Foods, Inc., 711 So. 2d 992 (Ala.1998) (holding that intentional torts are not encompassed in broad arbitration clauses). However, since the trial court entered its order refusing to compel arbitration, we have limited the holding in Ex parte Discount Foods by our decision in Green Tree Financial Corp. v. Vintson, 753 So. 2d 497 (Ala.1999). In Vintson, we wrote: 753 So. 2d at 504-05. Like the tort alleged in Vintson, the invasion of privacy and harassment alleged by these plaintiffs arose out of the financial transaction entered into between the parties. There can be nothing more "relating to" a financial transaction than the efforts a party takes to collect a debt created as a part of that transaction. Therefore, this case is distinguishable from Ex parte Discount Foods, especially considering that Vintson has limited Ex parte Discount Foods.[3] REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, SEE, and BROWN, JJ., concur. *152 LYONS, J., concurs in the judgment. COOK, J., concurs in the judgment, but dissents from the rationale. JOHNSTONE and ENGLAND, JJ., dissent. LYONS, Justice (concurring in the judgment). I share Justice Cook's view that Ex parte Discount Foods, Inc., 711 So. 2d 992 (Ala.), cert. denied, 525 U.S. 825, 119 S. Ct. 71, 142 L. Ed. 2d 56 (1998), is distinguishable from this present case. I therefore agree with him that the statement in the majority opinion about the current status of Discount Foods is not necessary to a decision in this case. COOK, Justice (concurring in the judgment, but dissenting from the rationale). The plaintiffs Judie Shoemaker and Olen McPherson purchased a mobile home with financing provided by Green Tree Financial Corporation ("Green Tree"). They fell behind in their payments, and Green Tree began telephoning their residence in efforts to collect installments due under the contract. As a result of these telephone calls, the plaintiffs sued Green Tree, alleging "invasion of privacy" and "harassment." Greentree moved to compel arbitration. The trial court, relying on Ex parte Discount Foods, Inc., 711 So. 2d 992 (Ala.1998), denied the motion. The majority reverses the order denying arbitration. In justifying this result, however, the majority "severely limit[s]" Discount Foods. More specifically, the majority states: 775 So. 2d at 151 n. 3 (emphasis added). In this, the majority goes too far. Even without the majority's "severe limit[ation]" of Discount Foods, this case is not inconsistent with Discount Foods, a case in which I fully concurred. In fact, Discount Foods is easily distinguishable from this case. That case involved an action by Discount Foods, Inc., against the Supervalu Company and others, alleging that Supervalu had intentionally interfered with business relations between Discount Foods and a third party. Id. at 993. Those relations arose out of the efforts of Discount Foods and the third party "to acquire a lease of commercial real estate." Id. Supervalu sought to compel arbitration, on the basis of provisions "contained in retail agreements ... between Supervalu and Discount Foods for the supply of groceries and other inventory items to Discount Foods." Id. This Court, very correctly, issued a writ of mandamus directing the trial court to vacate an order compelling arbitration, on the ground that "the disputes involved ... [were] in no way associated with" the contractual relations between Discount Foods and Supervalu, and that "the arbitration provision found in the retail agreements between Discount Foods and Supervalu was not intended by the parties to force arbitration in regard to allegations of intentional torts that [were] unrelated to their contractual dealings." Id. (emphasis added).[4] I concur in the judgment in this case, on the ground that the plaintiffs' claims are *153 related to their contractual dealings with Green Tree. In this connection, I note that the plaintiffs are signatories to the contract with Green Tree. The plaintiffs allege that Green Tree, in telephone conversations with the plaintiff Judie Shoemaker's daughter, threatened to "throw her out" and stated that it "hoped the house was full of kids so they could throw them out in the street." Brief of Appellees, at 4. They also allege that Green Tree "contacted Shoemaker's elderly mother on more than twenty occasions and told her to get the Shoemakers out of the house, they were `coming to pull the mobile home.'" Id. They further allege that Green Tree "contacted other persons and discussed [the plaintiffs'] situation with them, causing [the plaintiffs] to suffer shame, stress and humiliation." Id. at 5. We are not told who these "other persons" are. Additionally, neither the daughter nor the mother is a party in this case. Clearly, Green Tree had no right, under the installment contract, to "harass" anyone other than the signatories. It is entirely unclear, however, how Green Tree's alleged harassment of the daughter, the mother, and the anonymous "others" would support an action by these plaintiffs. Moreover, such "harassment," insofar as it does impact the plaintiffs, "relates to" the installment contract and the plaintiffs' failure to make the installment payments. Consequently, claims regarding it are arbitrable. But on its face this case is easily distinguishable from Discount Foods. Indeed, the majority acknowledges as much when it tacitly concedes that Discount Foods involved "an intentional tort that [was] in no way related to the underlying transaction." 775 So. 2d at 151 n. 3. This is not such a case. For these reasons, I concur in the judgment holding that the plaintiffs' claims are arbitrable, but I dissent from the rationale insofar as it purports to "severely limit[]" the application of Discount Foods. JOHNSTONE, Justice (dissenting). I respectfully dissent for the reasons stated in my dissents in Green Tree Financial Corp. v. Vintson, 753 So. 2d 497, 505 (Ala.1999); Ex parte Perry, 744 So. 2d 859 (Ala.1999); Ex parte Smith, 736 So. 2d 604 (Ala.1999); Ryan's Family Steak Houses, Inc. v. Regelin, 735 So. 2d 454 (Ala.1999). See also my special writing in Patrick Home Center, Inc. v. Karr, 730 So. 2d 1171 (Ala.1999). [1] This case was originally assigned to another Justice on this Court; it was reassigned to Justice Houston on May 2, 2000. [2] Green Tree Financial Corporation has since changed its name to Conseco Finance Corporation. [3] At best, this case and Vintson have severely limited the holding in Ex parte Discount Foods. Ex parte Discount Foods can now stand only for the proposition that an arbitration clause should not be enforced to require arbitration of a claim alleging an intentional tort that is in no way related to the underlying transaction that gave rise to the arbitration agreement. [4] The Court's reliance today on Vintson is also misplaced. Vintson contained allegations of (1) fraud in the inducement (2) violations of the Mini-Code, and (3) breach of an alleged agreement to pay off certain debts. This Court held that these claims did "relate to the installment contract" and, consequently, were arbitrable. 753 So. 2d at 504-05. Vintson did not address any claims alleging invasion of privacy or harassment. Thus, it is also distinguishable from this present case.

July 14, 2000

c490b10b-d7d8-4d90-9131-9e8eff5c8ec1

Sanders v. Smitherman

776 So. 2d 68

1981670

Alabama

Alabama Supreme Court

776 So. 2d 68 (2000) Henry SANDERS et al. v. Joe T. SMITHERMAN and Cecil Williamson. 1981670. Supreme Court of Alabama. June 30, 2000. *69 Rosemary Sanders, Collins Pettaway, Jr., and April England, Selma, for appellants. John W. Kelly III, Selma; Philip Henry Pitts of Pitts, Pitts & Thompson, Selma; and John E. Pilcher and E. Elliott Barker of Pilcher & Pilcher, Selma, for appellees. *70 PER CURIAM. This appeal arises from a defamation action based on printed and oral statements regarding conduct of State Senator Henry (Hank) Sanders; his wife, attorney Rose Sanders; and Dallas County District 3 Commissioner Perry Varner. Mr. Sanders is a state senator representing the 23rd District and is chairman of the Senate's Finance and Taxation/Education Fund Committee. In early 1997, Cecil Williamson, an elected member of the Dallas County School Board, began to gather information regarding Senator Sanders's conduct as a member of the Alabama Senate. Williamson ultimately turned over this information to the mayor of Selma, Joe T. Smitherman. On April 10 and April 17, 1997, Smitherman held press conferences concerning this information. Smitherman expressed concern over possible violations of state ethics laws by Senator Sanders. Smitherman and Williamson also circulated a publication dealing with the same subject matter. Williamson gave a radio interview in which he reiterated statements Smitherman had made at the press conferences. On or about June 2, 1997, Smitherman and Williamson received letters from an attorney representing Henry Sanders, Rose Sanders, and Perry Varner. Each letter demanded retractions. On June 10, 1997, Smitherman and Williamson filed a declaratory-judgment action in the Dallas County Circuit Court, against Varner and the Sanderses (CV-97-178). This action initially sought a judgment declaring whether Varner and the Sanderses were "public officials" and/or "public figures," whether Smitherman and Williamson's publications were defamatory or malicious, and whether retractions were necessary under the provisions of § 6-5-186, Ala. Code 1975. Two days later, on June 12, Henry Sanders, Rose Sanders, and Varner sued Smitherman and Williamson in the Circuit Court of Pickens County, alleging slander, libel, and abuse of process (CV-98-64). Several days later, Smitherman and Williamson amended their declaratory-judgment complaint to ask the court to declare that Smitherman's statements made during his April 10 and April 17, 1997, press conferences and the statements made by Williamson during his radio interview were political speech and, as such, were protected by the First Amendment to the United States Constitution. Smitherman and Williamson also filed a motion to transfer the Pickens County action (CV-98-64) to Dallas County; the trial court granted that motion on January 30, 1998, and transferred the action to Dallas County. After all the judges for the Fourth Judicial Circuit (which includes Dallas County) recused themselves, both cases were assigned to Judge Joseph S. Johnston of the Thirteenth Judicial Circuit (Mobile County), and the cases were consolidated for purposes of discovery. Both cases were set for trial on March 29, 1999, with all dispositive motions to be filed on or before January 29, 1999. In both actions, all parties filed timely motions for summary judgments. The court, on February 3, 1999, scheduled a hearing on the summary-judgment motions for February 18, 1999. In its order of February 3, 1999, the trial court, with regard to the hearing on the summary-judgment motions, stated that all responsive pleadings, along with supporting briefs and materials, were to be filed with the Circuit Court of Dallas County and received by the trial judge not later than Monday, February 15, 1999. Varner and the Sanderses, however, did not file affidavits and other materials supporting their motion or opposing Smitherman and Williamson's summary-judgment motion until February 16, 1999; this delay was due to the fact that February 15, 1999, was a State holiday. Based on the language in the order specifying that such materials were to be "received by the trial judge" by February 15, 1999, the trial court held that the submission of those materials after that date was untimely. *71 After it had held the hearing on February 18, 1999, the trial court entered a summary judgment in favor of Smitherman and Williamson in the declaratory-judgment action. The trial court also vacated an earlier order denying Smitherman and Williamson's motion to dismiss the defamation action filed against them and granted that motion. The trial court's detailed order in the declaratory-judgment action set forth each allegation of defamation made by Varner and the Sanderses and explained the rationale for the summary judgment. The trial court denied Varner and the Sanderses' motion for "reconsideration" in the defamation action. In one order disposing of both actions, the trial court held that Senator Sanders and Varner were "public officials" and that Rose Sanders was a "public figure." This holding called for the court to apply the "clear-and-convincing-evidence" standard in determining whether the statements concerning ethics violations had been made knowingly or recklessly. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). Neither the Sanderses nor Varner challenges this holding on appeal, and we find no basis to hold it erroneous. On appeal from the dismissal of their defamation action, the Sanderses and Varner raise three issues: (1) whether the statements made by Smitherman and Williamson were capable of having a defamatory meaning; (2) whether sufficient evidence was provided to the trial court to warrant a finding of actual malice; and (3) whether the defense of truth is applicable. While the Alabama Ethics Commission subsequently found no wrongful conduct, Varner and the Sanderses never refuted the underlying facts giving rise to the allegations of ethical violations. In this context, the issues become (1) whether accusations concerning actual violations of state ethics laws were, as a matter of law, made with actual malice, i.e., with knowledge of their falsity or with reckless disregard for their truth or falsity; and (2) whether the publication of the related pamphlet was defamatory. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S. Ct. 2419, 115 L. Ed. 2d 447 (1991) (citations omitted). When a party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). In a ruling on a summary-judgment motion in a defamation action involving a public figure, the trial judge must determine whether the plaintiff has shown by clear and convincing evidence that the defendant acted with actual malice. Deutcsh v. Birmingham Post Co., 603 So. 2d 910, 911 (Ala.1992), cert. denied, 506 U.S. 1052, 113 S. Ct. 976, 122 L. Ed. 2d 130 (1993). In support of their motion for a summary judgment in the defamation action, Smitherman and Williamson provided affidavits and public records that they say support their assertion that all statements they made or published concerning the *72 Sanderses and/or Varner were true. Because truth is a complete bar to a defamation action, Deutcsh, 603 So. 2d at 911, once Smitherman and Williamson submitted substantial evidence indicating their statements were true, the burden shifted to the Sanderses and Varner to present substantial evidence indicating that the statements made about them were false. The Sanderses assert that they submitted affidavits and other materials supporting their defamation claims. Varner submitted no evidence.[1] The trial court refused to consider the information submitted by the Sanderses because it held their materials to have been untimely filed. The Sanderses argue that the submissions were timely because Rule 6(a), Ala. R. Civ. P., states that in the event a due date falls on a legal holiday, the submitting party has until the end of the next day that is not a Saturday, Sunday, or legal holiday. Although the trial court specified Monday, February 15, 1999, as the due date for the submission of the materials, that day was a legal holiday, George Washington's Birthday. The Sanderses were therefore entitled to submit their affidavits and supporting materials on the next day that was not a legal holiday. See In re American Healthcare Management, Inc., 900 F.2d 827, 831 (5th Cir.1990) (holding that a bankruptcy rule equivalent to Rule 6(a), Ala. R. Civ. P., should be construed to give the benefit of extending the deadline for submission to the day after the holiday, regardless of whether the deadline is expressed as the last day of a period of days or as a date certain). It is beyond dispute that the filing was made in Dallas County on Tuesday, February 16, 1999, the first day after the legal holiday that was not a legal holiday in Dallas County. However, February 16, 1999, was Mardi Gras, a legal holiday in Mobile County. § 1-3-8, Ala.Code 1975. Smitherman and Williamson do not suggest that the materials were not received by the trial judge on Wednesday, February 17, 1999, the first day of the week that was not a legal holiday in Mobile County. Thus, we conclude that the materials were timely filed. The trial court's order of March 15, 1999, also states, however, that even if the materials had been timely submitted, they would not have been admitted because they did not comply with Rule 56(e).[2] With regard to the deficiency of the submitted materials, the trial court stated: "Under Rule 56(e), an opposing affidavit must be made on personal knowledge, must set forth facts that would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated." Black v. Reynolds, 528 So. 2d 848, 849 (Ala.1988). The Sanderses' affidavits refer to matters *73 beyond their personal knowledge; they rely on unsworn statements of third parties; and they otherwise relate to matters collateral to the issues before the court in this defamation proceeding. These affidavits, despite the defects, present relevant and admissible evidence partially supporting the Sanderses' claims.[3] They document previous confrontations with Smitherman. "Actual malice `... may be shown by evidence of previous ill will, hostility, threats, rivalry, other actions, former libels or slanders, and the like, emanating from the defendant, or by the violence of the defendant's language, the mode and extent of publication, and the like.'" Willis v. Demopolis Nursing Home, Inc., 336 So. 2d 1117, 1120 (Ala.1976). However, proof of actual malice in the context of claims against public figures also requires a showing that the statements were made with actual knowledge of their falsity or with reckless disregard for their truth or falsity. New York Times Co. v. Sullivan, 376 U.S. at 279-80, 84 S. Ct. 710. Even considering the affidavits and supporting materials, we must conclude that the Sanderses and Varner still failed to make any specific allegations of falsity to rebut the defendants' assertion of truth as a complete defense. As to the effect of the letter from the Alabama Ethics Commission finding no ethics-law violation, the trial court correctly observed that it established only that there was no basis to find that the actions of Senator Sanders violated state ethics law, and not that the underlying statements of Smitherman and Williamson had been false.[4] The trial court also examined the statements by Smitherman and Williamson alleging that the Sanderses and Varner had violated state ethics laws. Its order carefully distinguished between statements made by Smitherman about filing a complaint with the Alabama Ethics Commission and statements about the underlying facts. As the trial court noted, the question whether evidence is sufficient to support a finding of actual malice is a question of law. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (1989). As to statements made by Smitherman and Williamson about ethics violations, the trial court held: (Order at 13, R. 226.) (Emphasis added.) The trial court carefully evaluated the totality of the circumstances and the context surrounding Smitherman's statements concerning violations of ethics laws. It correctly concluded that the evidence presented was insufficient to show by "clear and convincing evidence" that the alleged defamatory statements, taken as a whole, were knowingly false or that they were made recklessly and without regard for their truth or falsity. Thus, the materials submitted by the Sanderses do not offer substantial evidence of malice, as required by New York Times Co. v. Sullivan, supra. We must view the alleged defamatory statements in light of the protections given to political speech by the First Amendment. Despite the history of animosity between the parties in this case, a history shown by the Sanderses' affidavits, the fact remains that Smitherman and Williamson were speaking about Senator Sanders and Varner, public officials, and Rose Sanders, also a public figure, on matters of public concern. Debate concerning Senator Sanders's conduct while pursuing his duties as a member of the Senate is precisely the kind of debate that deserves the highest protections provided by the First Amendment. The United States Supreme Court has expressed the importance of free debate on such issues: New York Times Co. v. Sullivan, 376 U.S. at 270-71, 84 S. Ct. 710 (quoting Cantwell v. Connecticut, 310 U.S. 296, 310, 60 S. Ct. 900, 84 L. Ed. 1213 (1940)). After carefully reviewing the allegedly defamatory remarks, we agree with the trial court's holdingthat the remarks are, at their core, political speech concerning matters of public concern and that they are, thus, subject to the full measure of protection under the First Amendment. The Sanderses miss the mark when they attempt to shift the attention from the factual predicate for the opinion Smitherman expressed in the statements, to the ultimate disposition by the Alabama Ethics Commission. The underlying facts, which are the basis for Smitherman's opinion, are the relevant area of inquiry and, as previously indicated, they have not been refuted. This case presents a classic example of statements of opinion relating to matters of public concern. One cannot recover in a defamation action because of another's expression of an opinion based upon disclosed, nondefamatory facts, no matter how derogatory the expression may be. Restatement (Second) of Torts § 566 cmt. c (1977). This is so because the recipient of the information is free to accept or reject the opinion, based on his or her independent evaluation of the disclosed, nondefamatory facts. Redco Corp. v. CBS, Inc., 758 F.2d 970, 972 (3d Cir.), cert. denied, 474 U.S. 843, 106 S. Ct. 131, 88 L. Ed. 2d 107 (1985). The trial court properly entered the summary *75 judgment with regard to the statements expressing Smitherman's opinion that the Sanderses and Varner had violated state ethics laws, and, to the extent Williamson endorsed that opinion, his opinion as well. Finally, with regard to the related pamphlet that was also alleged to be defamatory, we conclude that the trial court properly recognized the acronym used in the title as hyperbole or exaggeration for effect, not to be taken literally, as opposed to the accusation of a criminal act. The trial court correctly stated the governing law, as follows: The trial court correctly concluded that the title of the pamphlet consisted of "imaginative expression" and "rhetorical hyperbole" traditionally used in public debate and therefore protected by the First Amendment. Deutcsh, 603 So. 2d at 912. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, SEE, LYONS, and BROWN, JJ., concur. COOK, JOHNSTONE, and ENGLAND, JJ., recuse themselves. [1] Without affidavits from Varner, the trial court could determine only that no justiciable controversy existed between Varner and Smitherman and Williamson, because Varner failed to meet his burden after Smitherman and Williamson, in support of their summary-judgment motion, had submitted their evidence indicating that their statements were true. [2] On Wednesday, February 17, 1999, before the hearing, Smitherman and Williamson filed a motion with the trial court requesting that portions of the Sanderses' reply brief, affidavits, and supporting materials be stricken for failure to comply with Rule 56(e), Ala. R. Civ. P. See Ex parte Diversey Corp., 742 So. 2d 1250, 1253 (Ala.1999) (requiring a motion to strike matters not in compliance with Rule 56(e)). [3] Although the motion and supporting materials filed by the Sanderses in opposition to Williamson and Smitherman's summary-judgment motion were filed on behalf of Varner as well as the Sanderses, there were no specific allegations of falsity made regarding statements purportedly applicable to Varner. The only references to Varner are contained in Rose Sanders's affidavit, which refers to Varner as being of "African descent" and further states that "Defendant Smitherman and Williamson have racial malice for Hank and Rose Sanders and Perry Varner." The Sanderses and Varner offer no evidence of any direct charge leveled specifically against Varner concerning possible or actual wrongdoing. [4] In their reply brief, for the first time the Sanderses allege defamation with respect to their acquisition of a private condominium in Orange Beach. Even if we were to consider an argument raised for the first time in a reply brief on appeal, contrary to Kennesaw Life & Accident Insurance Co. v. Old National Insurance Co., 291 Ala. 752, 754-55, 287 So. 2d 869, 871 (1973), the materials before us do not reflect that this argument was made to the trial court. We cannot reverse the trial court's summary judgment on grounds not presented to the court. See Ex parte Ryals, 773 So. 2d 1011 (Ala.2000).

June 30, 2000

5e0a3114-71e3-414a-9feb-73848967dbef

Ex Parte Cummings

776 So. 2d 771

1981428

Alabama

Alabama Supreme Court

776 So. 2d 771 (2000) Ex parte Rebecca CUMMINGS. (Re Rebecca Cummings v. Martin Industries, Inc.) 1981428. Supreme Court of Alabama. June 30, 2000. *772 Jay E. Emerson, Jr., of Higgs & Emerson, Huntsville, for petitioner. *773 Charles H. Clark, Jr., and Martha Leach Thompson of Huie, Fernambucq & Stewart, L.L.P., Birmingham, for respondent. JOHNSTONE, Justice. Rebecca Cummings petitions this Court for a writ of mandamus directing Judge Michael Suttle to vacate his order denying her motion to compel discovery of workers' compensation files on the plaintiff maintained by the defendant Martin Industries, Inc. ("Martin"), her former employer, and by JRH Risk Services, Inc. ("JRH Risk"), Martin's insurance carrier. We grant the petition. On or about April 11, 1995, Cummings suffered an on-the-job injury. She sued her employer Martin for workers' compensation benefits for her on-the-job injury on October 27, 1995. On March 4, 1997, Cummings settled her workers' compensation claim with Martin. Martin fired Cummings on or about May 16, 1997. Thereafter, Cummings filed a motion for contempt against Martin because Martin failed to comply with the settlement agreement requiring Martin to pay for Cummings's medical care and to reimburse her for her out-of-pocket medical expenses.[1] On June 13, 1997, Cummings sued Martin for retaliatory discharge, pursuant to § 25-5-11.1, Ala.Code 1975. She alleged Martin treated her in a "hostile manner" after she claimed workers' compensation benefits. Cummings filed a notice of intent to subpoena "[a]ny and all records which were kept or maintained regarding Rebecca Cummings" from JRH Risk. Cummings also requested production of "[t]he workers' compensation file kept and maintained by [Martin] regarding [Cummings] as testified to by Anne Collins and Jim Truitt." Martin objected to notice of intent to serve a subpoena on JRH. Martin asserted that the workers' compensation file maintained by JRH Risk is privileged as work product. Martin asserted also that the file is subject to the attorney-client privilege. Martin objected on the same grounds to Cummings's request for production of "a workers' compensation file" maintained by Martin. In Martin's brief supporting its objections, Martin specifically argued that the work-product doctrine as provided in Rule 26(b)(3), Ala. R. Civ. P., and the attorney-client privilege as provided in Rule 502, Ala. R. Evid., protect from discovery the requested documents maintained by JRH Risk and the requested "workers' compensation file" maintained by Martin because those documents were "prepared in the anticipation of litigation." In response to Martin's objection to Cummings's request for production of documents relating to a "workers' compensation file," Cummings moved to compel production of the file. The trial court granted Cummings's motion without conducting a hearing. Martin filed a "Motion to Reconsider and Request for Oral Argument." Martin argued again that the work-product doctrine and the attorney-client privilege protected the requested documents from disclosure. Martin specifically asserted that "`the workers' compensation file' described by Cummings is primarily comprised of privileged correspondence and communications from counsel of record and otherwise contains attorney work product." Cummings filed a motion stating that the trial court should not grant oral argument on the discovery issue because "it [was] clear that this workers' compensation file maintained by [Martin] is relevant and material evidence of the issues related to [her] claims." After a hearing, the trial court denied Cummings's motion to compel discovery, without stating any reasons for its denial. Cummings now petitions this Court for a writ of mandamus. She claims that the trial court abused its discretion in denying *774 her motion to compel, for the following reasons: 1) Martin does not have standing to assert an objection or a privilege regarding the documents she subpoenaed from JRH Risk; 2) neither the "workproduct" doctrine nor the "attorney-client privilege" protect from discovery the requested documents maintained by both Martin and JRH Risk because those documents were not prepared by an attorney in the course of his legal representation of Martin; and 3) she has a "substantial need" for the requested documents because they contain information showing that she was "intentionally harassed" with regard to her workers' compensation claim by both Martin and JRH Risk. "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). This Court has held that a petition for a writ of mandamus is the proper method of review of "whether a trial court has abused its discretion in ordering discovery, in resolving discovery matters, and in issuing discovery orders." Ex parte Compass Bank, 686 So. 2d 1135, 1137 (Ala.1996). Further, this Court has held that a petition for a writ of mandamus is the proper method for review of the propriety of the issuance of a subpoena duces tecum to parties and to nonparties. Ex parte Anniston Personal Loans, Inc., 266 Ala. 356, 96 So. 2d 627 (1957); Ex parte Hart, 240 Ala. 642, 200 So. 783 (1941). "A petition for a writ of mandamus will be granted to compel discovery if a clear abuse of discretion is shown." Ex parte Fuller, 600 So. 2d 214 (Ala.1992). Rule 26(b)(1), Ala. R. Civ. P., states the general rule of discoverythat a party may obtain discovery of all matters, not privileged, that are "reasonably calculated to lead to the discovery of admissible evidence." An exception (itself subject to certain exceptions) to the general rule protects from a party's discovery documents prepared by the opposing party or by or for the opposing party's representative in anticipation of litigation. The protection of this exception extends in any event to "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." Rule 26(b)(3). "Under Rule 26(b)(3), the party objecting to discovery bears the burden of establishing the elements of the work-product exception." Ex parte Garrick, 642 So. 2d 951 (Ala.1994). "`[T]he test should be whether in light of the nature of the document and the 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 v. Knollwood Park Hosp., 511 So. 2d 154, 157 (quoting Binks Mfg.Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1119 (7th Cir. 1983)). "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)). "An evidentiary showing by the objecting party is not required until the parties are `at issue as to whether the document sought was, in fact, prepared in anticipation of litigation.'" Ex parte State Farm Automobile Ins. Co., 761 So. 2d 1000, 1002-1003 (Ala.2000) (quoting Ex parte Garrick, 642 So.2d at 953)). A motion to compel filed by the party requesting discovery puts the parties at issue. Id. Cummings's motion to compel placed the parties at issue as to whether the workers' compensation file maintained by Martin and the workers' compensation file maintained by JRH Risk were prepared in anticipation of litigation. Thus, to avoid or to curtail discovery, Martin needed to establish that the requested files were prepared in anticipation of litigation *775 or that they included communications to or from attorneys for Martin or JRH Risk respectively. In support of Martin's assertions of privilege, Martin submitted deposition testimony from various employees and from Cummings. Anne Collins, the director of Martin's Management Information Systems, testified that she maintains a workers' compensation file on Cummings. Collins stated that the file contains notes and documents regarding her discussions and office manager Jim Truitt's discussions with Sharon Langer, a representative of JRH Risk, about Cummings's on-the-job injury and her subsequent treatment. Collins stated that the file also contains notes of her conversations with Tina Tomsik, the director of Martin's Human Resource Department. Tomsik schedules Cummings's appointments with dentists and communicates with JRH Risk about payment for Cummings's treatment. According to Collins, the workers' compensation file maintained by Martin is separate from the file maintained by JRH Risk, although both files may contain similar notes about the administration of Cummings's workers' compensation claim. The deposition testimony from other witnesses, including Cummings, showed that Martin decided to reduce its budget in May 1997 and fired Cummings because she had the least seniority of the clerks in Martin's collections department. Martin did not submit any evidence that its workers' compensation file or JRH Risk's workers' compensation file on Cummings contained any privileged communications to or from an attorney. Nor did Martin submit any evidence that either of the workers' compensation files was prepared in anticipation of litigation. Although Martin has submitted, before this Court, an affidavit from Anne Collins stating that Martin prepared its workers' compensation file on Cummings "in anticipation of litigation," Collins executed that affidavit on July 21, 1999, two months after the trial court denied Cummings's motion to compel on May 24, 1999. Further, the affidavit does not reflect that it has been filed with or has been considered by the trial court. Consequently, the affidavit is not properly before this Court. Pepsi-Cola Bottling Co. v. Colonial Sugars, Div. of Borden, Inc., 423 So. 2d 190, 192 (Ala. 1982) ("Matters not presented below will not be reviewed on appeal.") (Citations omitted.) Thus, Martin's claims of privilege work-product privilege and attorney-client privilegeare only bare assertions, not supported by any evidence. Because Martin has not satisfied its burden of establishing that the workers' compensation files maintained by it and by JRH Risk were prepared in the anticipation of litigation and because Martin has not established that those files contain privileged attorney-client communications, the trial court abused its discretion in denying Cummings's motion to compel discovery of the workers' compensation files maintained by Martin and by JRH Risk. Accordingly, Cummings's petition for a writ of mandamus is granted. WRIT GRANTED. COOK and ENGLAND, JJ., concur. HOOPER, C.J., and MADDOX, HOUSTON, SEE, LYONS, and BROWN, JJ., concur specially. LYONS, Justice (concurring specially). The Court properly reverses the trial court's order denying the motion to compel production, thereby leaving in place the earlier order that granted the motion to compel. I do not interpret today's ruling as precluding further proceedings in the nature of a reconsideration of the trial court's order compelling production. I write specially to offer guidance concerning the manner in which a party resisting discovery should assert the availability of the attorney-client and work-product privileges. As the main opinion points out, Cummings's requests for production of documents *776 from Martin and from JRH Risk, the third-party administrator, were met with Martin's blanket assertion that "[t]he request for documents seeks information subject to the attorney/client privilege and the work product privilege as stated in Rule 26 of the Alabama Rules of Civil Procedure." In its brief in support of its objection to Cummings's notice of intent to serve subpoena on a nonparty and in response to Cummings's motion to compel, the defendant became somewhat more specific, by stating: Cummings filed a motion to compel, which was initially granted by the trial court. Martin moved for a "reconsideration," stating that "[t]he `workers' compensation file' described by the plaintiff is primarily comprised of privileged correspondence and communications from counsel of record and otherwise contains attorney work product." The main opinion correctly observes that this assertion was not supported by affidavit testimony. Nevertheless, the trial court entered an order denying Cummings's motions to compel documents from JRH Risk's worker's compensation file and Martin's worker's compensation file. The first attempt to support the assertions of privilege with materials other than the conclusions of counsel came in this Court in response to Cummings's petition for a writ of mandamus. Martin offered an affidavit stating: "With regard to the Rebecca Cummings worker's compensation claim, I maintained a file with notes regarding conversations with our third-party administrator, Sharon Langer, and notes from our attorney, which were maintained in anticipation of litigation." I agree with the main opinion's refusal to consider this affidavit because it was not before the trial court. Rule 34(b), Ala. R. Civ. P., requires that reasons for objecting to a request for production be stated. Because objections based upon privilege require specificity in order to guide the party seeking production in determining whether to proceed further, I would require more information than was given to the trial court in this case. Because our rules provide little direction in this area, I cannot criticize Martin's conduct in this action nor hold Martin to the penalty of waiver because of its failing to be more specific. I would require further proceedings that meet standards of specificity that aid opposing counsel and the trial court. Guidance can be drawn from Rule 26(b)(5), Federal Rules of Civil Procedure, which provides: For purposes of application to the facts before us, a defendant should respond to a request for production by describing the documents by category that are subject either to work-product or attorney-client *777 privilege, specifying either or both, as to each such category, and describing the subject matter of such documents, without revealing privileged information. For example, in response to the plaintiff's initial request, the defendant could state, if accurate, as follows: In addition, to the extent that the requested materials might include information dealing with legal advice concerning the prospect for a wrongful-discharge action in the event of plaintiffs termination at some future date, a proper response asserting the attorney-client privilege as to those matters could include, if applicable, this statement: A party requesting discovery who then receives a response containing information as outlined above would be able to make an educated decision as to the wisdom of further pursuit of the matter by motion to compel, perhaps preceded by depositions or interrogatories to elicit nonprivileged information concerning dates, places, persons present, persons receiving copies, and/or general information as to the subject matter. A party so informed would then be expected to make a showing in its motion to compel that either contradicts the status of the materials as protected by trial preparation or attorney-client privilege or, as to work product, concedes its status as such but demonstrates that party's substantial need for the materials and its inability to obtain the substantial equivalent by other means without undue hardship. See Rule 26(b)(3), Ala. R. Civ. P. Upon such motion, the defendant would be obliged to develop a detailed response, perhaps including a log describing each document and asserting the defendant's objection to the disclosure of each document so as to facilitate, if necessary, an in camera review by the trial court. Because the burden of such preparation may be significant, a party subjecting an opposing party to abuse of discovery procedures, by requiring the preparation of responses to a frivolous motion to compel production of privileged materials, can be ordered to pay attorney fees and costs related to the preparation of the responses. See § 12-19-272(c), Ala.Code 1975. HOOPER, C.J., and MADDOX, HOUSTON, SEE, and BROWN, JJ., concur. [1] After a hearing, the trial court sanctioned Martin and ordered it to pay $7,500 for its failure to comply with the parties' settlement agreement. Upon Martin's motion for reconsideration, the trial court rescinded its order of contempt and its sanction against Martin.

June 30, 2000

2be5bbc0-0b5b-46f2-ac8f-57b12212f064

Ex Parte Farmers Exchange Bank

783 So. 2d 24

1990967

Alabama

Alabama Supreme Court

783 So. 2d 24 (2000) Ex parte FARMERS EXCHANGE BANK. (In re Sara Cole v. Farmers Exchange Bank). 1990967. Supreme Court of Alabama. July 14, 2000. Rehearing Denied September 1, 2000. *26 Amy V. Bowman and William H. Webster of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for petitioner. Charles Amos of Parkman & Associates, Dothan, for respondent. Michael L. Edwards, H. Hampton Boles, and Robert C. Khayat, Jr., of Balch & Bingham, L.L.P., Birmingham, for amicus curiae Alabama Bankers Association, in support of the petitioner. HOUSTON, Justice. Sara Cole sued Jeffrey Allen Miller (who had sold her a used house) and Farmers Exchange Bank (which had provided financing for her to purchase the house). She sued in the Barbour Circuit Court, alleging fraudulent suppression or concealment related to the sale. In Count Three, which contains the only allegation against the Bank, Cole alleges that the house had been inspected for termites; that the Bank knew or should have known that the house had termites and/or that it had termite damage; and that it proceeded to provide Cole financing to purchase the house, without informing her of the results of the termite inspection. Cole further alleges that the Bank "caused, permitted, condoned, or allowed... fraud to be perpetrated upon" her. For the purposes of this opinion, we will assume that Cole has adequately alleged fraudulent suppression. Miller and the Bank each moved for a summary judgment. The circuit court entered a summary judgment for the Bank, but denied Miller's motion. The trial court then made the Bank's summary judgment final, pursuant to Rule 54(b), Ala. R. Civ. P. Cole appealed the summary judgment to this Court; we transferred the appeal to the Court of Civil Appeals. That court reversed the judgment and remanded the case, by a 3 to 2 decision. Cole v. Farmers Exchange Bank, 783 So. 2d 16 (Ala.Civ. App.1999). We granted the Bank's petition for certiorari review. We reverse and remand. On April 11, 1997, Cole contracted with Miller to purchase the house. The Bank's only role in the transaction was to provide Cole's financing for the purchase. The purchase/sale agreement made Miller responsible for, among other things, having a termite inspection of the house. Miller retained Copter Pest Control, which performed an inspection and presented Miller with a report of its findings. The report indicated termite damage. Miller and Cole discussed many existing problems with the house, but they never discussed the findings in the termite report. The report was brought to the closing, at the Bank's request, so that it could include the cost of the inspection as an "outside fee" on the Department of Housing and Urban Development (HUD) report. For the purposes of reviewing the Bank's summary judgment, we must assume that the Bank learned of the termite damage, from that report, while that report was in its possession.[1] Cole never, at any time, inquired of the Bank about the possibility *27 that the house she was purchasing had termite damage. After taking possession of the house, Cole discovered that in fact the house had termite damage and active termites. Cole then sued Miller and the Bank. She contends that the Bank fraudulently concealed or suppressed the fact of the termite damage. The Bank argues that it had no duty to disclose that information to Cole because (1) she never requested such information from the Bank and (2) she and the Bank were not in any kind of confidential relationship that would require it to disclose such information in the absence of an inquiry. A summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P. When reviewing a ruling on a motion for a summary judgment, this Court uses the same standard of review the trial court used "in determining whether the evidence before the court made out a genuine issue of material fact." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988). When a party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assur. Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). In order to succeed on a fraudulent-suppression claim, the plaintiff must prove: (1) that the defendant suppressed a material fact; (2) that the defendant had had a duty to communicate that fact, arising from a confidential relationship or from the circumstances of the case; and (3) that the plaintiff was damaged as a result of the suppression. Ex parte Dial Kennels of Alabama, Inc., 771 So. 2d 419 (Ala.1999). The question at issue in this case revolves around the second element of fraudulent suppressionspecifically, it is whether the Bank had a duty to disclose to Cole the termite damage indicated by Copter Pest Control's report. The existence of a duty is a question of law to be determined by the trial court. State Farm Fire & Cas. Co. v. Owen, 729 So. 2d 834 (Ala. 1999). A duty to disclose can arise either from a confidential relationship with the plaintiff or from the particular circumstances of the case. Ala.Code 1975, § 6-5-102; Ex parte Ford Motor Credit Co., 717 So. 2d 781, 785 (Ala.1997). This Court has stated that the only circumstance under which a lender who is merely providing financing for the sale of some item can have a duty to disclose information related to the condition of that item is if the plaintiff makes a specific request of the lender for that information. See Ex parte Ford Motor Credit Co., 717 So. 2d at 785-87. The trial court determined that the Bank had no duty to disclose information to Cole. However, the Court of Civil Appeals held that the Bank was liable for actively concealing the information concerning the termites. It based that holding on Soniat v. Johnson-Rast & Hays, 626 So. 2d 1256 (Ala.1993). Soniat, like this case, dealt with a claim that in regard to the sale of a house someone had fraudulently suppressed information about termite damage. In applying Soniat to this present case, the Court of Civil Appeals stated: Cole, 783 So. 2d at 22. That court stated that because the Bank had known of the termite damage and had failed to inform Cole, "a genuine issue of fact exists concerning whether the Bank fraudulently concealed the inspection report from Cole on the day of closing." Cole, 783 So. 2d at 22. This was a misinterpretation of our holding in Soniat. In Soniat, the plaintiffs alleged fraudulent suppression of termite damage to the housesuppression not only by the seller, but also by the listing agent. In discussing the liability of the listing agent, we held: Soniat, 626 So. 2d at 1259. In other words, this Court held that the listing agent had no duty arising from the relationship between the agent and the buyers to disclose deficiencies in the house being sold. However, we also held that a separate duty to disclose any termite damage arose from the particular facts that surrounded that transaction, facts clearly indicating that the buyers had specifically requested that the termite report be presented to them before the sale. Because of this request, the seller and his agent had a duty to provide the complete termite report, and, because a material portion of the termite report presented to the buyers was missing, the jury could infer that the agent had breached the duty he owed to the buyers. Thus, that case presented a jury question. The holding we have just quoted from Soniat is too loose. That holding is modified to read as follows, so as to accurately correspond to the facts in Soniat: In Soniat, the buyers (the Soniats) required the seller to provide a termite bond, as a condition to closing. Soniat, 626 So. 2d at 1259. A material document, which was part of the bond, was removed before the bond was given to the Soniats; thus, the Soniats did not receive the full information they had requested. Cole made no specific request to the Bank that a termite bond be presented to her before closing. This distinguishes this case from Soniat. The sales contract between Miller and Cole provided that at the closing Miller would provide Cole with a termite-inspection report. It is without dispute that the termite report was given to the Bank for the sole purpose of allowing the Bank to record the amount of the inspection fee on the appropriate HUD report. With Soniat clarified, we address the question whether the Bank had a duty to disclose to Cole information concerning termite damagea duty arising either from their relationship or from other circumstances surrounding the transaction in which they were both involved. *29 In Lee v. United Federal Savings & Loan Ass'n, 466 So. 2d 131 (Ala.1985), this Court dealt with the issue whether a lending institution could be held liable for fraud that might have occurred in a transaction in which it was merely providing financing. We held: 466 So. 2d at 134. (Emphasis added.) As we have already stated, the Bank's single role was to provide financing to Cole. This Court in Lee made it clear that a lender in this kind of situation has no duty arising from the relationship between it and the borrower to inform the borrower of any deficiencies in the house she is purchasing, including deficiencies related to termite damage. However, the Bank could still be liable to Cole if the situation between them is similar to the one in Soniati.e., if Cole made a specific request of the Bank for information about the possibility of termite damage. See Ex parte Ford Motor Credit Co., 717 So. 2d at 786; Gewin v. TCF Asset Mgmt. Corp., 668 So. 2d 523 (Ala.1995); Altmayer v. City of Daphne, 613 So. 2d 366 (Ala.1993); Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc., 611 So. 2d 238 (Ala.1992). This case is unlike Soniat, where the particular facts indicated that the buyer had asked for the relevant information, and a duty to disclose had thus arisen. In this present case, no evidence before the trial court suggested that a separate duty on the part of the Bank had arisen. While Cole did, through the purchase agreement, make inquiry of Miller (the seller) concerning termite damage, she made no request of the Bank concerning termite damage, either in the purchase agreement, orally, or otherwise. Therefore, no duty on the part of the Bank to disclose could have arisen. Because a lender that is merely lending money to finance the purchase of a house has no duty to inform the buyer of any defects in the house that the lender may have knowledge of, in the absence of a specific request to the lender for information regarding those defects, the trial court properly entered the summary judgment for the Bank. Therefore, the judgment of the Court of Civil Appeals is reversed and the cause is remanded. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, SEE, LYONS, and BROWN, JJ., concur. COOK, JOHNSTONE, and ENGLAND, JJ., dissent. JOHNSTONE, Justice (dissenting). I respectfully dissent because the record contains substantial evidence which invalidates the summary judgment entered by the trial court. I will recite the tendencies of the evidence most favorable to Cole, the plaintiff-nonmovant, as the courts are required to consider the evidence submitted on a motion for summary judgment. Several factual circumstances created a duty in the bank to disclose the termite infestation to Cole. First, the bank had prepared the contract to sell and to buy to be executed by the seller, Miller, and the buyer, Cole, and had included the requirement for the termite inspection and bond in the contract for better security of the loan the bank wanted to make to Cole for the purchase of the house. Second, the bank told Cole she did not need a lawyer at closing. Third, at the closing, the bank had possession and knowledge of both the termite bond and the inspection report *30 revealing termite infestation. Fourth, the bank delivered to Cole at closing a copy of the termite bond without the accompanying termite-inspection report. Under these circumstances, the bank's delivering the innocuous termite bond without the termite-inspection report revealing infestation constituted telling Cole a half-truth which would necessarily lull her into not inquiring further about termite infestation. The bank's telling Cole this half-truth under these circumstances created in the bank the duty to tell Cole the rest of the truththat is, to provide Cole a copy of the inspection report revealing the infestation by termites. The bank's withholding the termite-inspection report from Cole at the closing further constituted an active breach of the Bank's duty to tell Cole the rest of the truth about the termites. Moreover, the bank's dual interests in closing the loan support the inference that the bank suppressed the termite infestation with the intent to deceive Cole. The dual interests of the bank in closing the loan were, first, that Cole would pay the bank interest on the loan for the purchase price of the house and, second, from these purchase-price proceeds obtained by the seller Miller, the bank could simultaneously collect big debts owed it by Miller. The special factual circumstances creating in the bank the duty to disclose the termite infestation to Cole, the active breach of that duty, the obvious materiality of the information suppressed, and the bank's intent to deceive or to mislead the plaintiff combined to constitute a valid claim for fraudulent suppression in this case. Ex parte Dial Kennels of Alabama, Inc., 771 So. 2d 419 (Ala.1999), and Soniat v. Johnson-Rast & Hays, 626 So. 2d 1256 (Ala.1993). The main opinion expressly revises the language of the holding in Soniat, supra, in two ways. First, the main opinion eliminates from the Soniat holding the language to the effect that special circumstances can create a duty to disclose. This revision ignores established law. See, e.g., Dial Kennels, supra. Second, the main opinion adds to the Soniat holding an additional essential element: that the plaintiff must have requested the information suppressed by the defendant. Imposing the burden of this additional essential element on a plaintiff will reward a defendant for telling a plaintiff a half-truth and thereby lulling the plaintiff into not inquiring further. Soniat is good law as written by the Soniat Court. Because substantial evidence of record supports the traditional essential elements of a fraudulent suppression by a violation of a duty created by special factual circumstances, summary judgment was inappropriate. Thus I would affirm the judgment of the Court of Civil Appeals reversing the summary judgment entered by the trial court in favor of the bank. COOK and ENGLAND, JJ., concur. [1] Whether the Bank actually had knowledge of the damage at any point during the transaction is contested by the parties. However, when reviewing a ruling on a summary-judgment motion, this Court will view the evidence in the light most favorable to the nonmovant. Renfro v. Georgia Power Co., 604 So. 2d 408 (Ala.1989). Therefore, we must view the evidence in the light most favorable to Cole and must assume the Bank had knowledge of the termite damage that was indicated by the report.

July 14, 2000

00dd85b3-0a60-429f-9844-cd8a047c3caf

Ex Parte White

775 So. 2d 798

1982202

Alabama

Alabama Supreme Court

775 So. 2d 798 (2000) Ex parte Sheryl WHITE and John White. (In re Sheryl White and John White v. Dr. James Northington and Northington Clinic, P.C.) 1982202. Supreme Court of Alabama. June 23, 2000. J. Barton Warren, Huntsville; and Herman Watson, Jr., of Watson & Jimmerson, P.C., Huntsville, for petitioners. *799 Nicholas B. Roth and Jenny L. McLeroy of Eyster, Key, Tubb, Weaver & Roth, Decatur, for respondents. COOK, Justice. On November 17, 1995, John White and his wife Sheryl White filed a medical-malpractice action against Dr. James Northington and Northington Clinic, P.C., alleging that Dr. Northington had, during a surgery, removed Sheryl White's ovaries without her consent. On October 19, 1998, Dr. Northington discovered that on May 25, 1995, before they had sued him and Northington Clinic, the Whites had filed a Chapter 13 bankruptcy petition and that they had not disclosed their malpractice claim to the bankruptcy court. On the same day Dr. Northington discovered that one of the Whites' attorneys, by telephone, obtained permission from the bankruptcy court to represent the bankruptcy court's interest in the proceedings against Dr. Northington and Northington Clinic. Dr. Northington and Northington Clinic moved for a directed verdict, arguing that the Whites lacked standing to pursue the malpractice claim and that they should be judicially estopped from maintaining the malpractice action because of their failure to report the malpractice claim in their 1995 Chapter 13 bankruptcy proceedings. The trial court rejected the lack-of-standing argument, but directed a verdict for the defendants on the basis of judicial estoppel. Based on the directed verdict, the court entered a judgment for the defendants. The Whites appealed. The Court of Civil Appeals, on July 22, 1999, affirmed the judgment of the trial court, without an opinion. White v. Northington, (No. 2980399) ___ So.2d ___ (Ala.Civ.App. 1999) (table). We granted the Whites' petition for certiorari review. We reverse and remand. The Whites argue that they should not be judicially estopped from asserting their medical-malpractice claim against Dr. Northington and Northington Clinic, and they ask this Court to overrule, in part, Luna v. Dominion Bank of Middle Tennessee, Inc., 631 So. 2d 917 (Ala.1993). On May 25, 1995, the Whites filed for bankruptcy protection under Chapter 13 of the Bankruptcy Act. Almost six months later, on November 17, 1995, the Whites filed the medical-malpractice action against Dr. Northington and Northington Clinic. The Whites did not list the medical-malpractice claim as an asset on their bankruptcy schedule of assets, nor did they later amend their bankruptcy schedule to reflect the pending malpractice lawsuit. However, the bankruptcy court was made aware of the Whites' pending action on October 19, 1998, when the Whites' attorneys spoke with the bankruptcy judge and obtained permission to continue with the malpractice action in a dual role in which the attorneys would also represent the bankruptcy court's interest in the suit. The Whites' original payment plan provided for a 100% payback to all creditors to be completed by May 25, 2000. On September 6, 1996, the Whites moved to modify the confirmed payment plan. They sought to reduce the payment to unsecured creditors to 25%, because Sheryl White was no longer employed. The bankruptcy court granted the motion. When the bankruptcy court was asked to modify the confirmed payment plan, the Whites had not amended their schedule of assets to reflect the action against Dr. Northington and Northington Clinic. However, the bankruptcy court was notified of the existence of that action on October 19, 1998. At that time, the Whites had not been discharged by the bankruptcy court. The Whites ask this Court to overrule Luna v. Dominion Bank, supra. However, the facts of Luna are distinguishable from the facts in the present case. In Luna, Luna filed a "lawsuit 18 months after he had been discharged from his debts in bankruptcy proceedings." 631 So. 2d at 918. Luna had not disclosed in his Chapter 7 proceedings that he had a potential claim or asset. Id. The Court in *800 Luna found that there was evidence indicating that Luna did know, or should have known, of his claims while his bankruptcy case was pending. Therefore, Luna had a duty to report his potential claims to the bankruptcy court. Id. at 919. Because the bankruptcy court relied on Luna's bankruptcy schedules as being true and accurate, allowing Luna to continue with his lawsuit would have seriously impinged on the integrity of the judicial system. Unlike Luna, the Whites had not been discharged in bankruptcy at the time they filed their state-court action. Although the Whites still have not amended their bankruptcy schedules to reflect the pendency of the state action, the bankruptcy court is aware that that action exists and that it is pending. The Whites' attorneys notified the bankruptcy court of the Whites' state-court action when the attorneys requested that they be allowed to represent the bankruptcy court's interest in the state-court proceedings. The bankruptcy rules are fairly lenient: "[I]f a debtor fails to include assets on his schedules and later seeks to add them, the Bankruptcy Rules allow it `as a matter of course at any time before the case is closed.'" In re Griner, 240 B.R. 432, 439 (Bankr.S.D.Ala.1999)(citing Fed. R. Bankr.P. 1009(a)). Because the Whites did report the pending action to the bankruptcy court before they were discharged, their actions did not significantly impinge on the integrity of the judicial system. The facts of this case and the facts of Luna are easily distinguishable; therefore, in order for the Whites to avoid the holding of judicial estoppel, it would not be necessary for us to overrule Luna. This case is more appropriately addressed under this Court's recent decision in Jinright v. Paulk, 758 So. 2d 553 (Ala. 2000). The Jinrights were Chapter 13 debtors, just as the Whites are in this case. In Jinright, we stated: "[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." Id. 758 So. 2d at 554. In concluding that the doctrine of judicial estoppel should not apply to the Jinrights, we stated: 758 So. 2d at 559. Similarly, there is no indication, in the present case, that the Whites will benefit from the omission. In fact, the bankruptcy court became aware of the Whites' claims against Dr. Northington and Northington Clinic before the Whites were discharged. Furthermore, we find no indication that Dr. Northington and Northington Clinic have been prejudiced by the Whites' initial failure to disclose their malpractice claim to the bankruptcy court. We reverse the Court of Civil Appeals' judgment affirming the trial court's judgment based on the directed verdict in favor of Dr. Northington and Northington Clinic, and we remand for that court to order further proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, SEE, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. HOUSTON, J., concurs specially. BROWN, J., concurs in the result. HOUSTON, Justice (concurring specially). I believe Luna v. Dominion Bank of Middle Tennessee, Inc., 631 So. 2d 917 *801 (Ala.1993), was correctly decided. The main opinion's statement that: "it [is not] necessary for us to overrule Luna" does not, in my opinion, mean that the Court would overrule Luna if this present case could not be distinguished from it. In that hypothetical situation, I would follow Luna and let the chips fall where they may in deciding this present case.

June 23, 2000

792b5e4c-508f-4eda-a3bc-6beabd6ccaf0

Jim Walter Resources, Inc. v. Argo

779 So. 2d 1167

1971949

Alabama

Alabama Supreme Court

779 So. 2d 1167 (2000) JIM WALTER RESOURCES, INC. v. Victor ARGO. 1971949. Supreme Court of Alabama. June 23, 2000. Rehearing Denied September 1, 2000. *1168 Robert K. Spotswood and Kenneth M. Perry of Bradley, Arant, Rose & White, L.L.P., Birmingham, for appellant. J. Gusty Yearout and John G. Watts of Yearout, Myers & Traylor, P.C., Birmingham; and Mac Parsons, Bessemer, for appellee. BROWN, Justice. Jim Walter Resources, Inc. ("Jim Walter"), is the defendant in an action pending in the Jefferson Circuit Court, Bessemer Division. It appeals from an order denying its motion to compel arbitration.[1] We reverse and remand. During his employment with Jim Walter, Victor Argo entered into an automatic-payroll-deduction plan, whereby a portion of his paycheck would be deducted and deposited into his savings account with the Sloss Federal Credit Union.[2] The payroll-deduction plan was offered as an employee benefit, and Argo participated in the plan for several years. On December 19, 1996, Argo sued Jim Walter, alleging conversion, fraud, and breach of contract, all related to its administration of the payroll-deduction plan. The claims were based upon an allegation that Jim Walter had failed to transfer the deductions to the credit union in a timely manner. Argo sued both as an individual and as a representative of those similarly situated. On February 7, 1997, Jim Walter answered, pleading as an affirmative defense that the claims were "barred by [Argo's] failure to utilize the grievance and arbitration procedure contained in the collective bargaining agreements between [Jim Walter] and the union which represented the plaintiff and other bargaining unit employees." Jim Walter simultaneously moved to vacate the court's conditional order certifying a class and removed the case to the United States District Court for the Northern District of Alabama, arguing that the payroll-deduction plan was covered under a January 1994 collective bargaining agreement ("CBA") entered into by Jim Walter and the United Mine Workers of America ("UMWA").[3] In its notice of removal and in its accompanying brief, Jim Walter referred to the arbitrability of Argo's claims. Thereafter, Argo moved to remand the case to the state court, arguing that the CBA was inapplicable because, he contended, the underlying claims did not involve the obligations and duties set forth in the CBA. On April 11, 1997, the parties' attorneys met, pursuant to Rule 26(f), Fed.R.Civ.P., to formulate a discovery *1169 plan; the report of the parties' planning meeting was filed on April 21, 1997. Included in the report was the statement of the parties: Argo argued that his claim regarding Jim Walter's alleged failure to timely transfer payroll deductions was not preempted by the CBA; and Jim Walter argued (1) that the transfer of funds was timely and (2) that Argo must resolve his complaint through the grievance procedure provided for in the CBA. In September 1997, the federal district court remanded the case to the state court.[4] On December 15, 1997, Jim Walter filed a motion to stay the proceedings and to compel arbitration, pursuant to the terms of what it alleged to be a "valid, irrevocable, and enforceable contract entered into by Argo, through his bargaining representative." The motion was accompanied by an affidavit from the UMWA representative, wherein he stated that Argo's claims were encompassed by the CBA's arbitration provision. Argo filed an opposition to the motion to compel arbitration, arguing (1) that the dispute was not within the terms of the CBA and (2) that Jim Walter had waived its right to compel arbitration. On June 23, 1998, the trial court held a hearing and afterwards entered an order denying Jim Walter's motion to compel arbitration. The record does not reflect the court's reason for denying the motion to compel arbitration; the court merely made an entry on the case action summary stating that the motion had been denied. Jim Walter argues that the trial court erred in denying its motion to compel arbitration because, it says, an arbitration provision in the CBA encompasses Argo's claims. In 1994, the UMWA and Jim Walter entered into a CBA governing hours of work, wages, and other terms and conditions of employment. The CBA also outlined grievance procedures and disputeresolution procedures, expressly stating that any unresolved disputes would be submitted to arbitration;[5] the CBA further established that all disputes related to wages and terms and conditions of employment were governed by the CBA's disputeresolution process. Jim Walter argues that the payroll-deduction plan is a benefit of employment, that it is closely related to wages and has been adopted into the CBA through custom, and that it is, therefore, subject to the grievance procedures set forth in the CBA. In support of this argument, Jim Walter offered the uncontradicted affidavits of Michael Johnson, Jim Walter's industrial relations supervisor, and John Stewart, the UMWA representative. Both Johnson and Stewart stated that any complaints regarding the manner in which Jim Walter managed payroll deductions were subject to the grievance procedures set forth in the CBA. Argo presented nothing to dispute this assertion, other than a copy of the federal court's order remanding the case to the state court and a mere allegation *1170 that his claims are not precluded by the CBA. Upon close review, Argo's claims appear to challenge the manner in which Jim Walter administered a wage-related employee-benefit program, specifically, a payroll-deduction plan. The CBA clearly states that "all disputes and claims which are not settled by agreement shall be settled by the `Settlement of Disputes' Article... without recourse to the courts." Accordingly, we conclude that Argo's claims are subject to the arbitration provision contained within the CBA. Argo argues that Jim Walter waived any right it may have had to compel arbitration, by not moving in the federal court to compel arbitration. In support of that argument, Argo cites Ex parte Hood, 712 So. 2d 341 (Ala.1998). In determining whether a party has waived its right to arbitrate, this Court has held: Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So. 2d 897, 899 (Ala.1995) (citations omitted). The courts will not lightly infer a waiver of the right to compel arbitration; thus, the burden on the party seeking to prove waiver is a heavy one. Mutual Assurance, Inc. v. Wilson, 716 So. 2d 1160 (Ala.1998). The present case, while factually somewhat similar, is clearly distinguishable from Ex parte Hood. In Ex parte Hood, the defendant failed to give notice of its intention to enforce the arbitration agreement until three months after the case had been removed to the federal court and two months after the parties' counsel had met to discuss how the federal litigation would proceed. This Court stated: 712 So. 2d at 346. Under the particular circumstances of Ex parte Hood, this Court concluded that the defendant, by its unexplained delay, after removal, in seeking to resolve the controversy through arbitration, had waived its right to compel arbitration. As noted earlier in this opinion, Jim Walter asserted the affirmative defense of arbitration in its initial answer. *1171 See Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So. 2d 1, 3 (Ala. 1986) (indicating that a party clearly has not waived the right to arbitrate if it has asserted that right in its initial answer on the merits). Jim Walter referred to arbitration in its notice of removal and in its discovery-plan report. We can find no persuasive evidence indicating that Jim Walter intended to waive or abandon its right to seek arbitration in accordance with the grievance procedure set forth in the CBA. For the foregoing reasons, the trial court's order denying Jim Walter's motion to compel arbitration is reversed and the cause is remanded. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, SEE, LYONS, and ENGLAND, JJ., concur. COOK, J., dissents. COOK, Justice (dissenting). Jim Walter Resources, Inc., appeals from the trial court's denial of its motion to compel arbitration. The plaintiff, an employee of Jim Walter, sued Jim Walter, alleging fraud, breach of contract, and conversion of his payroll-deduction moneys that were to be transferred to his savings account at a credit union. Jim Walter argues that the plaintiff's claims were preempted by the Collective Bargaining Agreement ("CBA") that Jim Walter and the United Mine Workers of America had entered. (Jim Walter states that the "contract [was] entered into by Argo, through his bargaining representative.") Therefore, Jim Walter argues, the plaintiff must utilize the grievance procedure set forth in the CBA (i.e., arbitration). I do not agree that the plaintiffs claims fall within the CBA. The plaintiff entered into an individual agreement with Jim Walter allowing for an automatic deduction from his wages; that individual agreement did not provide for arbitration as a grievance mechanism. We should not conclude that this individual agreement was within the scope of the CBA, simply on the basis that it involved the plaintiffs "wages." The CBA governs "hours of work, wages, and other terms and conditions of employment." However, the plaintiffs claims are not created by the terms of the CBA. Therefore, there is no basis for a conclusion that his claims are covered by the CBA. [1] A direct appeal is the proper procedure by which to challenge a trial court's denial of a motion to compel arbitration. A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358 (Ala. 1990). [2] In his brief, Argo refers to the credit union as "Jim Walter Credit Union." However, the original complaint lists Sloss Federal Credit Union as the banking institution used by Argo. [3] Argo's brief refers to his union as "United Steel Workers of America, AFL-CIO, Lodge Number 2140." [4] The federal court's order states, in pertinent part: "Because these claims do not implicate obligations or duties created by the express or implied terms of the relevant Collective Bargaining Agreements, there is no basis for federal jurisdiction. Thus, [this case was] improperly removed and the [motion] to remand [is] hereby GRANTED." [5] The CBA contains the following provisions: "In cases where the district representative and the representative of the Employer fail to reach agreement, the matter shall, within 10 calendar days after referral to them, be referred to the appropriate district arbitrator who shall decide the case without delay. "... [A]ll disputes and claims which are not settled by agreement shall be settled by the `Settlement of Disputes' Article of this Agreement unless national in character in which event the parties shall settle such disputes by free collective bargaining as heretofore practiced in the industry, it being the purpose of this provision to provide for the settlement of all such disputes and claims through the machinery in this contract and by collective bargaining without recourse to the courts."

June 23, 2000

557cedaa-6f9d-4d49-8b69-97b7d4a565ad

Ex Parte Flynn

776 So. 2d 99

1981999

Alabama

Alabama Supreme Court

776 So. 2d 99 (2000) Ex parte Youngjoo FLYNN, R.N. Re Jean Sellers v. Y. Flynn, R.N., et al. 1981999. Supreme Court of Alabama. June 30, 2000. Michael K. Wright, Sybil V. Abbott, and Geoffrey S. Bald of Starnes & Atchison, L.L.P., Birmingham, for petitioner. Julia T. Cochrun and Karen D. Farley of Pate, Lloyd, Fuston & Cochrun, L.L.P., Birmingham, for respondent. PER CURIAM. Youngjoo Flynn, a registered nurse employed by the University of Alabama at Birmingham ("UAB"), is a defendant in a tort action brought by Jean Sellers. That action is currently pending in the Jefferson Circuit Court. Sellers had been a patient at the University of Alabama Hospital ("the hospital"), a division of UAB. She alleged in her complaint that Flynn, a nurse at the hospital, had negligently allowed her to fall in her hospital room. Flynn moved for a summary judgment, on the ground that she was immune from suit under the doctrine of discretionary-function immunity. The trial judge denied the motion for summary judgment, holding that Flynn was not entitled to immunity. Flynn petitioned for a writ of mandamus directing the trial court to enter a summary judgment for her. We deny the writ. The materials before us tend to show the following facts: Sellers entered the hospital on July 29, 1995, for treatment following a myocardial infarction. Dr. Thomas Richardson was primarily responsible for her care. On July 31, Sellers was transferred from the cardiac-care unit to the cardiology floor. At the time of her transfer, Dr. Richardson made the following entry on a "physician's order sheet": "Activity: bedrest & bedside commode." In July 1995, Flynn was a staff nurse at the hospital working 12-hour shifts from 7:00 p.m. to 7:00 a.m. on the cardiology floor. While Flynn was on duty, she was the primary person responsible for providing nursing care to Sellers. A nursing aide, Gloria Littlejohn, assisted Flynn in providing care to Sellers. Dr. Richardson scheduled Sellers to undergo a cardiac catheterization; the procedure was set for 6:45 on the morning of August 2, 1995. His order scheduling the catheterization did not provide any additional or updated activity-level orders. *100 The night before the scheduled catheterization, Sellers had difficulty falling asleep. Pursuant to an order by Dr. Richardson, nurse Flynn gave Sellers 10 milligrams of Ambien, a sedative, at 1:30 a.m. The material before us is conflicting as to the order in which they entered Sellers's room, but it appears that a few hours after Flynn gave Sellers the sedative Littlejohn entered Sellers's room once and Flynn entered the room twice, in efforts to awaken Sellers and prepare her for the catheterization. Flynn testified in a deposition that in her final visit to Sellers's room she informed Sellers that she needed to get up and get ready for the catheterization. Flynn testified that Sellers acknowledged her, got out of bed, and started toward the bathroom. Flynn testified that when she left the room, Sellers was moving toward the bathroom and did not appear to be having any problems. Sellers and her sister, Betty Parris, however, contradict Flynn. Parris had stayed with Sellers in the hospital room the night before the catheterization was scheduled. Parris stated in an affidavit that on Flynn's final visit Flynn slammed the door and left before Sellers acknowledged Flynn or got out of bed. Sellers's testimony is consistent with her sister's testimony. Sellers slipped and fell as she was attempting to leave the bathroom. The fall caused a nondisplaced fracture of the fibula in one leg. In his deposition, Dr. Richardson was asked what his order "bedrest and bedside commode" meant. He testified: (Richardson deposition at 12-23.) Flynn argues that she was entitled to a summary judgment on the basis that, as an agent of the State, she enjoys immunity from Sellers's claim. Given our recent decision in Ex parte Cranman, [Ms. 1971903, June 16, 2000] ___ So.2d ___ *101 (Ala.2000) (on application for rehearing), we must disagree. In Cranman, this Court "reexamine[d] the doctrine of immunity of officers, agents, and employees of the State for torts committed in the course of their performance of their duties." ___ So.2d at ___. The Court thoroughly reviewed the theory and evolution of the doctrine of immunity as it has been applied to agents of the State, and then restated the rule of immunity applicable in cases such as this one: ___ So.2d at ___. (Emphasis added.) In Cranman, a University of Alabama student, Matthew Cranman, suffered from testicular cancer. He sought treatment at the University's student health center, but the doctors at the center did not diagnose the cancer. He later died; while the record did not indicate the cancer had caused his death, his father, as plaintiff, stated in his appellate brief that Matthew had died of cancer. See ___ So.2d at ___ n. 1. Cranman's father, as executor of his estate, sued, among others, physicians who had treated Cranman at the student health center. Those physicians were employed by the University of Alabama. The trial court held that they had immunity. On our review, we stated the rule for Stateagent's immunity that we have quoted above, and then we considered whether the physicians were entitled to immunity. The physicians argued that medical "decision-making inherently involves the utmost discretion." Cranman, ___ So.2d at ___. We concluded, however, that their "conduct..., in their treatment of Matthew Cranman, [did] not fit within any category of conduct recognized by the restated rule as immune." Cranman, ___ So.2d at ___. As a consequence, we held that they were not entitled to immunity. This case is subject to a similar analysis. Flynn argues that she was exercising discretion in determining the most appropriate *102 method of implementing Dr. Richardson's orders of "bedrest and bedside commode." The plaintiff argues that Flynn was not called upon to exercise judgment in implementing Dr. Richardson's orders and that, in implementing them, Flynn was engaged in a ministerial task. Even assuming, arguendo, that Flynn was called upon to use her judgment in implementing Dr. Richardson's orders, we must nonetheless conclude that she is not entitled to immunity. We see no factor that would distinguish this case from Cranman in such a way as to require or allow the conclusion that Flynn is entitled to immunity under the rule announced in Cranman. The writ of mandamus is denied. WRIT DENIED. HOOPER, C.J., and HOUSTON, COOK, LYONS, BROWN, and JOHNSTONE, JJ., concur. MADDOX and SEE, JJ., disssent. ENGLAND, J., recuses himself. MADDOX, Justice (dissenting). My views regarding this case are fully expressed in my special writing in Ex parte Cranman, [Ms. 1971903, June 16, 2000] ___ So.2d ___ (Ala.2000). I believe that nurse Flynn is immune from suit under the doctrine of discretionary-function immunity. SEE, Justice (dissenting). I dissent from the denial of the writ of mandamus, for the reasons stated in my dissent in Ex parte Cranman, [Ms. 1971903, June 16, 2000] ___ So.2d ___, ___ (Ala.1999) (substituted opinion on application for rehearing). I would apply to the facts of this case the following balancing test (the test quoted here is the statement of the immunity rule provided in the withdrawn Cranman opinion of November 24, 1999): Cranman, ___ So.2d at ___ (See, J., dissenting and quoting from the withdrawn opinion). Based on the application of that balancing test, I would determine whether to issue the writ directing the trial court to enter a summary judgment in favor of the defendant, Youngjoo Flynn, R.N., on the ground that she is entitled to discretionary-function, or State-agent, immunity. Nurse Flynn was engaged in a discretionary function when, as an employee of the University of Alabama at Birmingham Hospital, she made her decisions regarding the implementation of Dr. Richardson's order relating to the care of the plaintiff Jean Sellers. See Smith v. Arnold, 564 So. 2d 873 (Ala.1990); Smith v. King, 615 So. 2d 69 (Ala.1993). In this case, that determination appears dispositive. See generally Ex parte Cranman, ___ So.2d at ___ (See, J., dissenting). However, as I stated in my dissent from the substituted *103 Cranman opinion issued on application for rehearing, the discretionary/ministerial determination is not always dispositive of the issue of State-agent immunity. In balancing the policies of the right to a remedy (Art. I, § 13, Ala. Const. of 1901) and sovereign immunity (Art. I, § 14, Ala. Const. of 1901), in light of the separation-of-powers principle (Art. III, § 43, Ala. Const. of 1901), if the burden on the plaintiff is found to significantly outweigh the benefits of applying State-agent immunity to the defendant State-agent, then I would conclude that the defendant State-agent is not entitled to immunity. The parties, however, have not had the opportunity to brief this Court on the applicability of the balancing test, because this Court's original per curiam opinion in Ex parte Cranman was released on November 24, 1999, after the parties had filed their briefs in this case. I would order the parties to file supplemental briefs on the issue whether the burden on Sellers significantly outweighs the benefits of applying State-agent immunity to Nurse Flynn in the performance of her University-related health-care responsibilities. I therefore dissent from the denial of the writ of mandamus.

June 30, 2000

502398a6-2da1-4a19-8ba1-f67ba32afac9

Ex Parte Howlet

801 So. 2d 30

1981736

Alabama

Alabama Supreme Court

801 So. 2d 30 (2000) Ex parte Benjamin HOWLET. (In re Benjamin Howlet v. State). 1981736. Supreme Court of Alabama. June 30, 2000. Rehearing Denied September 1, 2000. *31 Charles H. Pullen, Huntsville; and Hilda Trapp Smith, Florence, for petitioner. Bill Pryor, atty. gen., and Hense R. Ellis II, asst. atty. gen., for respondent. LYONS, Justice. Benjamin Howlet was convicted of two counts of murder made capital because he committed the murder by shooting the victim while the victim was in a vehicle, § 13A-5-40(a)(17), Ala.Code 1975; and because Howlet was in a vehicle when he fired the shot, § 13A-5-40(a)(18). The trial court sentenced Howlet to life imprisonment without the possibility of parole. Howlet appealed to the Court of Criminal Appeals. That court dismissed his appeal as having been untimely filed. Howlet v. State, 801 So. 2d 25 (Ala.Crim.App.1999). Howlet sought certiorari review from this Court; we granted his petition. We reverse the Court of Criminal Appeals' judgment and remand the cause. Howlet was convicted on April 22, 1998. On that date, his attorney stated to the trial court: "Your Honor, at this time the defendant will give oral notice of appeal." The trial court sentenced Howlet on May 27. On June 25, Howlet filed a motion for a new trial. The trial court set a hearing on the motion for August 7. On July 27, Howlet and the State filed a joint motion, pursuant to Rule 24.4, Ala. R.Crim. P., requesting that the trial court continue the new-trial motion because the hearing was set more than 60 days after Howlet's sentence was pronounced. Rule 24.4 states: In response to the joint motion, the trial court entered the following order: On August 5, Howlet requested that the hearing on his motion for new trial be continued "until a date approximately 10-14 days after the trial transcript is completed." On August 7, the State consented to a "continuance of the hearing of the defendant's Motion for a New Trial to 14 days after completion and delivery of the trial transcript." The trial court entered the following order: On November 3, the trial court set Howlet's motion for new trial for a hearing on January 5, 1999. On December 3, 1998, Howlet filed a written notice of appeal with the trial court. On December 8, Howlet and the State filed a joint motion "to enlarge the time for the Court to rule on Defendant's Motion for a New Trial until seven (7) days beyond the date the Court hears said motion." On December 9, the trial court granted their motion. On January 25, 1999, the trial court denied Howlet's motion for new trial. On April 21, 1999, the Court of Criminal Appeals dismissed Howlet's appeal as untimely filed. That court found that the first continuance of Howlet's motion for new trial properly complied with Rule 24.4 because it was continued to a "date certain," that being 30 days after the original date set for hearing the motion. As to the second continuance, however, the Court of Criminal Appeals stated: 801 So. 2d at 27-28. On application for rehearing, Howlet argued that even if his written notice of appeal filed on December 3, 1998, was untimely, his oral notice of appeal to the trial court after he was convicted on April 22, 1998, was timely, pursuant to Rule 4(b)(1), Ala. R.Crim. P. The Court of Criminal Appeals, in response to the rehearing application, issued another opinion on July 2, 1999, to address Howlet's argument; it held that "to invoke the provision in Rule 4 that allows the notice of appeal to be treated as filed on the date of sentencing or the date that a post-trial motion is denied, the notice of appeal must be in writing." 801 So. 2d at 29. The dispositive issue in this case is whether Howlet's written notice of appeal, filed on December 3, 1998, was timely. There is no dispute as to whether the first continuance of Howlet's motion for new trial complied with Rule 24.4. As to the second continuance, however, we must determine whether Howlet's motion for new trial was automatically denied upon the expiration of 60 days. That portion of Rule 24.4 dealing with the continuance of a posttrial motion sufficient to interrupt the running of the 60-day period requires that the motion be continued until a "date certain." Rule 24.4 deals with the problem of indefinite postponement of ruling on post-trial motions in criminal cases. Here, pursuant to a joint motion for a continuance, the trial court continued the motion until "a date 14 days after the completion and delivery of the trial transcript" and enlarged the time for ruling on the motion "to include the date of the hearing on the motion and 7 days therefrom." We conclude that this language was sufficient to satisfy Rule 24.4's requirement of a "date certain." In so concluding, *33 we rely on the maxim "That is certain which can be made certain." In a case such as this, the court reporter is bound by a deadline subject to limited extensions by the trial court. See Rule 11(a)(2) and (c), Ala. R.App. P. The requisite certainty can be attained by applying the provisions of Rule 11, Ala. R.App. P., and adding 14 days. We conclude that the trial court's order in this case is sufficient to avoid the evil of the indefinite postponement of ruling on the posttrial motion. Furthermore, the requested continuance was agreed upon by both parties, and that agreement is of record. Howlet's notice of appeal was timely in reference to the date that could be made certain as set forth in the trial court's order continuing the motion. The Court of Criminal Appeals' judgment dismissing Howlet's appeal is hereby reversed, and the cause is remanded for that Court to consider the merits of his appeal. Because we conclude that Howlet's written notice of appeal was timely filed, we need not address his argument concerning his oral notice of appeal. REVERSED AND REMANDED.[*] MADDOX, HOUSTON, COOK, BROWN, JOHNSTONE, and ENGLAND, JJ., concur. HOOPER, C.J., and SEE, J., dissent. HOOPER, Chief Justice (dissenting). I must respectfully dissent from the Court's interpretation of the term "date certain." I believe that the reliance on Rule 11(a)(2) and (c), Ala. R.App. P., is misplaced. Contrary to the provisions of that rule, there is no order appearing in the court file that provided a due date for the completion of the trial transcript. I also question whether Rule 11(a)(2), Ala. R.App. P., is applicable to this case at all. That rule provides: "The court reporter shall prepare and file the designated reporter's transcript with the clerk of the trial court within 56 days (8 weeks) from the date of the notice of appeal, unless the time is shortened or extended by an order entered pursuant to subdivision (c) of this rule." In this case, there had been no notice of appeal filed at the time the motion for new trial was continued to "a date 14 days after the completion and delivery of the trial transcript." The record does not show that the trial court entered an order either shortening or extending the time for preparing the transcript. In addition, it appears that the hearing on the motion for new trial was actually held before the completion and delivery of the trial transcript. The record indicates the following chronology of events: While it is important to consider the reasoning behind the adoption of a rule, it is also necessary to look at the language of the rule. A holding that the term "date certain" encompasses "a date 14 days after the completion and delivery of the trial transcript" completely changes the meaning and application of the term "date certain." SEE, J., concurs. [*] Note from the reporter of decisions: On January 12, 2001, on remand from the Supreme Court, the Court of Criminal Appeals affirmed, by unpublished memorandum. On February 9, 2001, that court denied rehearing. On May 11, 2001, the Supreme Court denied certiorari review, without opinion (1000936).

June 30, 2000

8477a840-e425-4a08-998a-f0d46951cc06

Ex Parte Fitkin

781 So. 2d 182

1990810

Alabama

Alabama Supreme Court

781 So. 2d 182 (2000) Ex parte Fredrick Francis FITKIN, Jr. (Re Fredrick Francis Fitkin, Jr. v. State). 1990810. Supreme Court of Alabama. July 21, 2000. *183 James W. May of James W. May & Associates, P.C., Foley, for petitioner. Bill Pryor, atty. gen., and Jack W. Willis, asst. atty. gen., for respondent. HOOPER, Chief Justice. Fredrick Francis Fitkin, Jr., was convicted of possession of marijuana in the second degree. He was sentenced to 30 days in jail; the trial court split the sentence so that Fitkin was to serve no time in jail but was to be on unsupervised probation for six months. Fitkin was also fined $200. The Court of Criminal Appeals, on December 3, 1999, affirmed, without an opinion. Fitkin v. State (No. CR-98-2023), ___ So.2d ___ (Ala.Crim.App. 1999). We granted certiorari review. Fitkin argues that the evidence presented by the State was insufficient to establish constructive possession of marijuana. Fitkin moved for a judgment of acquittal at the close of the State's evidence. The court denied that motion. The trial court's denial of a motion for a judgment of acquittal must be reviewed by determining whether there was legal evidence before the court at the time the motion was made from which, by fair inference, the defendant could be found guilty. See Ward v. State, 610 So. 2d 1190 (Ala.Crim.App.1992). The State's evidence, taken as true, showed the following: Fitkin was driving his sister-in-law's truck on January 2, 1999, when Officer Ricky Tobin saw him and ran a check on the truck's tag number in to see if the license plate and the vehicle matched. The tag number was obscured. When Officer Tobin checked what appeared to be the number on the tag, a check indicated that the tag belonged on a different vehicle. Officer Tobin stopped Fitkin, but soon realized the mistake. Officer Tobin warned Fitkin about obscuring the plate numbers. Deputy Randy Yonce arrived on the scene; after Yonce had arrived, Fitkin consented to a search of the truck. Deputy Yonce conducted the search. Yonce testified that the ashtray was closed, but that he opened it and found in it a partially burned hand-rolled marijuana cigarette, or "joint." The joint was lying on top of the other contents of the ashtray. He discovered no other contraband. When the officers confronted Fitkin with the joint, he told them that he had lent the truck to other people and that the joint must belong to one of those other people, who, he said, must have just left it in the truck. Officer Tobin testified that until the officers confronted him with the joint Fitkin never said anything, or exhibited any conduct, to indicate that he knew there was anything illegal in the truck. Deputy Yonce testified that no marijuana was found on Fitkin's body, and Yonce said he had not smelled any odor of burnt marijuana. Deputy Yonce was asked whether he noticed if Fitkin smoked cigarettes. Yonce testified that he had noticed and when asked if Fitkin did smoke cigarettes, Yonce again said, "Yes, ma'am." In order to establish constructive possession, the State must prove "(1) [a]ctual or potential physical control, (2) intention to exercise dominion and (3) external manifestations of intent and control." Bright v. State, 673 So. 2d 851, 852 (Ala.Crim.App.1995)(quoting earlier cases). Fitkin argues that our decisions in Ex parte Story, 435 So. 2d 1365 (Ala.1983), and *184 Ex parte D.B., 678 So. 2d 255 (Ala.1996), are controlling in this case and that they support his argument that the State did not present sufficient evidence to prove constructive possession. In Story, a witness saw the defendant entering an automobile at night. The defendant was carrying some sort of bag, but the witness could not identify the bag, because of the lighting. When the vehicle was stopped, a bag containing illegal drugs was found on the floorboard under the defendant's seat. This Court held that the evidence as presented raised a reasonable doubt as to whether the defendant "had knowledge of the drugs." 435 So. 2d at 1367. In D.B., the defendant was convicted of unlawfully firing a weapon in the city limits and of possession of a gun found in the vehicle in which he was riding. The Court of Criminal Appeals held that the location of the car in the area where the gunshots were heard, together with the presence of guns and ammunition in the car, was sufficient circumstantial evidence to support a finding that D.B., a passenger in the car, had discharged a gun and had constructively possessed it. This Court reversed the judgment of the Court of Criminal Appeals, stating that the circumstantial evidence raised only the possibility that D.B. had known the guns were in the car. In D.B., we distinguished the facts of that case from those of another constructive-possession case, C.D.J. v. State, 671 So. 2d 139 (Ala.Crim.App.1995). In C.D.J., police responded to a call that shots had been fired at the Valley Skate Center in Birmingham. Witnesses told the officers that the shots had been fired from either a blue Cadillac automobile or a red Datsun automobile. The defendant was a passenger in the red Datsun, where the officers found a shotgun and two pistols. The defendant was adjudicated delinquent on the charges of possession of a shotgun and of carrying a pistol. However, in C.D.J., the State presented more evidence than the mere presence of the defendant in the automobile with the guns. There was also evidence that the guns were still warm, that the shot had come from the passenger side of the vehicle, where C.D.J. was sitting, and that one of the guns had a spent chamber. In this case, when Fitkin made his first motion for a judgment of acquittal, the only evidence suggesting that he had known about the marijuana was the fact that it was in the truck he was driving and the fact that he was a cigarette smoker. At that time, no evidence had been presented to show that Fitkin had even been using the ashtray where the marijuana joint was found sitting on top of ashes and cigarette butts. There was no evidence that Fitkin had smoked inside the truck that morning. The only evidence concerning Fitkin's use of cigarettes was the fact that he was a smoker. This case is analogous to the distinction we made between D.B., supra, and C.D.J., supra. The mere presence of a marijuana joint in the ashtray of a truck belonging to someone else, which the owner had allowed several people to use, should not in and of itself establish the intent to possess. The evidence presented by the State did not show that the marijuana joint was still warm, that it appeared to have been recently lit, or that the vehicle had a marijuana odor. According to the officers at the scene, Fitkin exhibited no behavior indicating he knew of the marijuana or indicating an intent to possess or to hide it. At the close of the State's evidence, when Fitkin first moved for a judgment of acquittal, the State had presented no evidence indicating that Fitkin knew of the presence of the marijuana or indicating that he intended to control it. The trial *185 court erred by denying Fitkin's motion. The judgment of the Court of Criminal Appeals is reversed and this case is remanded for an order or proceedings consistent with this opinion. REVERSED AND REMANDED. HOUSTON, COOK, SEE, LYONS, JOHNSTONE, and ENGLAND, JJ., concur. MADDOX and BROWN, JJ., dissent. BROWN, Justice (dissenting). I respectfully dissent from the opinion reversing Fitkin's conviction on the basis that the state failed to establish that he constructively possessed the marijuana found in the truck. In Ex parte Woodall, 730 So. 2d 652 (Ala. 1998), this Court addressed the role of appellate courts in reviewing the sufficiency of the evidence in a criminal case: 730 So. 2d at 658. I believe the evidence presented in this case was sufficient to establish constructive possession of the marijuana. Thus, the jury could have reasonably concluded that Fitkin knew of the marijuana and that he possessed it for his personal use. See Bright v. State, 673 So. 2d 851 (Ala.Crim. App.1995); W.L.L. v. State, 649 So. 2d 1335 (Ala.Crim.App.1994). Accordingly, I would affirm the judgment of the Court of Criminal Appeals affirming Fitkin's conviction. MADDOX, J., concurs.

July 21, 2000

87eca26f-6fd0-46cc-a7b4-28a2bf705245

Cheminova America Corp. v. Corker

779 So. 2d 1175

1982176, 1982177

Alabama

Alabama Supreme Court

779 So. 2d 1175 (2000) CHEMINOVA AMERICA CORPORATION v. Iris CORKER et al. Acuderm, Inc. v. Iris Corker et al. 1982176 and 1982177. Supreme Court of Alabama. June 30, 2000. Rehearing Denied September 1, 2000. *1176 Edward G. Isaacs Bowron, John Charles S. Pierce, and Michael A. Montgomery of Pierce, Ledyard, Latta & Wasden, P.C., Mobile, for appellant Acuderm, Inc. Clarence M. Small, Jr., and Rhonda Pitts Chambers of Rives & Peterson, Birmingham, for appellant Cheminova America Corp. Steve Olen and Steven L. Nicholas of Olen & Nicholas, P.C., Mobile; and Patrick H. Sims of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Mobile, for appellees Iris Corker and Tommy Bell. ENGLAND, Justice. These appeals are from a class-certification order, filed pursuant to Act No. 99-250, Ala. Acts 1999, codified at §§ 6-5-640 through -642, Ala.Code 1975 (Cum.Supp. 1999). The Act requires a trial court to hold a "full evidentiary hearing" on class certification under Rule 23, Ala. R. Civ. P. This Court has consistently held that a trial court's class-certification order is to be reviewed by an abuse-of-discretion standard. Ex parte Government Employees *1177 Ins. Co., 729 So. 2d 299, 303 (Ala.1999). We find no abuse of discretion in the court's entering the class-certification order; therefore, we affirm. The trial judge held a full evidentiary hearing, which met the requirements of §§ 6-5-640 through -642. The trial judge made the following findings of fact: On February 20, 1998, Iris Corker, acting individually and on behalf of a national class of similarly situated individuals, filed a complaint in Mobile County against Laboratories Cheminova Internacional, S.A.,[1] Cheminova America Corporation, Acuderm, Inc., and Nixon Drugs, Inc. Her complaint asserted fraud claims and a claim under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"). As last amended, the complaint contained five counts. Counts One and Two stated claims alleging fraud and suppression arising from the alleged mislabeling of the contents of the product. Count Three stated a claim alleging breach of warranty; Count Four stated a claim for restitution of the purchase price paid by the plaintiffs; and Count Five stated a breach-of-contract claim. On February 2, 1999, Ms. Corker filed a motion seeking certification of the following class: Ms. Corker filed a third amended complaint on March 31, 1999, in which she added Tommy Bell as an additional class representative. The amended complaint asserted that Acuderm had sold Skin Cap directly to Bell and, therefore, that Acuderm was liable for the purchase price of the product. In April 1999, Cheminova filed a motion to continue the class-certification hearing that was set for April 28. The trial court orally denied the continuance, at a hearing held on April 23, 1999. A full hearing on Ms. Corker's motion for class certification was held on April 28, 1999, at which the plaintiffs offered 21 documents in support of their argument. Acuderm filed a motion to strike the affidavit of the plaintiff Tommy Bell, but the court never ruled on this motion. On August 3, 1999, the trial court entered an order certifying the action under Rule 23(b)(3), Ala. R. Civ. P., as a nationwide class action for the recovery of economic damages. The trial judge rejected class treatment of the fraud and suppression claims and rejected class treatment of claims for personal-injury damages under any theory, and it wrote: The trial judge limited the certification to claims for refunds sought by members of the class: Thus, the trial judge certified a class whose claim is that class members are entitled to get their purchase money back because the defendants mislabeled, in a critical way, the product they sold to the class members. On September 13, 1999, Cheminova and Acuderm appealed from the certification order. We must determine whether the trial judge abused his discretion in performing his analysis of the four prerequisites for conditionally certifying a class action under Rule 23(a), Ala. R. Civ. P.: These four prerequisites are commonly referred to as numerosity, commonality, typicality, and adequacy. Warehouse Home Furnishing Distribs., Inc. v. Whitson, 709 So. 2d 1144, 1148 (Ala.1997). The record indicates that the trial judge, in deciding to conditionally certify a limited class, made the "rigorous analysis" required by this Court's caselaw. See Ex parte Citicorp Acceptance Co., 715 So. 2d 199 (Ala.1997), and Ex parte Exxon Corp., 725 So. 2d 930, 932 (Ala.1998). We will discuss the four prerequisites. The first requirement for a class-action certification is numerosity. The trial judge's certification order states: "Approximation of the number of potential class members in consumer actions is generally the rule." Ex parte Government Employees Ins. Co., supra, at 303, citing 2 H. Newberg and A. Conte, Newberg on Class Actions § 7.22 (3d ed.1992). We conclude that the trial court did not abuse its discretion in holding that the plaintiffs meet the numerosity requirement. Commonality is the second requirement under Rule 23(a) that the class must satisfy. The trial court stated in its certification order: We find no abuse of discretion on the part of the trial court here. The court properly identified the central question in this litigation as relating to the factual issues whether the product sold contained an undisclosed substance and whether the defendants knowingly or unknowingly sold a dangerous product. The principles of the Uniform Commercial Code ("U.C.C.") can be easily applied on a classwide basis. Under U.C.C. Article 2, some version of which has been adopted in all states except Louisiana, a description of a product on a label creates an express warranty. See, e.g., § 7-2-313, Ala.Code 1975. The label on the Skin Cap product contains a "core description" of what the defendants were selling; that description is an "express warranty" under the plain terms of § 7-2-313. A sale of a product that is not fit for use as described violates the implied warranty of merchantabilitythat the product is fit for its intended purposean implied warranty that under the U.C.C. accompanies each sale by a merchant. § 7-2-314, Ala.Code 1975. The defendants contend that the variations in the degree of privity the separate class members had with the defendants, variations caused by the application of the laws of the several states, are so great that this action may not proceed as a class action. However, we believe any problems caused by those variations would be manageable. Those who are in the directpurchaser subclass are in privity with Acuderm. Second, the state-law variations can be recognized and dealt with by the trial court, because the facts of the transactions are uniform and are not in dispute insofar as they relate to privity. The questions of fact and law common to the class predominate over any questions affecting only individual members of the class. The third requirement of Rule 23(a) is typicality. That requirement focuses on the interests of the class representatives. The trial court stated in its certification order: We find no abuse of discretion on the part of the trial court in regard to the requirement of typicality. The fourth requirement for class certification is adequacy of representation. The trial court rigorously analyzed this fourth element in its certification order, as follows: We find no abuse of discretion in regard to the fourth requirement. Next, we consider whether the trial court erred in finding that the plaintiffs have met the elements of Rule 23(b)(3) for class certification. The trial court stated in its certification order: We cannot say the court abused its discretion in finding the plaintiffs had satisfied the Rule 23(b) requirements for class certification. The defendants claim the trial court abused its discretion in certifying the action as a class action because, they say, the plaintiffs failed to "prove" facts necessary to find liability. However, at this stage of the proceedings, the kind and level of proof are distinctly different from those required at a trial on the merits. A plaintiff seeking to represent a class need not prove its entire case in order to satisfy the requirements of Rule 23, Ala. R. Civ. P. Ex parte Government Employees Ins. Co., 729 So. 2d at 303; Ex parte Amsouth Bancorporation, 717 So. 2d 357, 366 (Ala. 1998). The defendants also claim that the trial court abused its discretion in denying Cheminova America's motion for a continuance of the class-action hearing. We review a trial court's denial of a motion for a continuance by asking whether the denial was a palpable abuse of the court's discretion. Copeland v. Samford Univ., 686 So. 2d 190 (Ala.1996). The defendants have not shown that the trial court abused its discretion. Finally, the defendants claim that the plaintiffs' claims are preempted by Alabama's Deceptive Trade Practices Act, Ala.Code 1975, §§ 8-19-1 to -15, specifically § 8-19-10(f). They cite Ex parte Exxon Corp., supra, 725 So. 2d 930. Ex parte Exxon decertified a class action, because of the preemption provision of § 8-19-10(f). 725 So. 2d at 933-34. The plaintiffs in Ex parte Exxon sought relief specifically based on New Jersey consumerprotection laws and sought to apply, on a nationwide basis, the New Jersey statutory remedy to the defendants' course of conduct. Because Alabama law prevents consumers from representing a class seeking relief for a defendant's alleged deceptive trade practices, § 8-19-10(f), Ala.Code 1975, this Court held that the class representatives in that case could not maintain the action as a class action. The defendants argue that this Court's decision in Ex parte Exxon supports their claim that the plaintiffs here are preempted from filing a class action. We disagree. The legislative intent behind Alabama's Deceptive Trade Practices Act was to require "a strong and effective consumer protection program to protect the interest of both the consuming public and the legitimate businessperson." § 8-19-2. Section 8-19-15 is a "saving clause"; it provides that the Act is cumulative and that a plaintiff can elect whether to sue for the remedies provided under the Act or to sue for remedies allowed by the common law. § 8-19-15(b). While § 8-19-10(f) makes no provision for a class action under the Act, the Act specifically states that consumers are not prohibited from seeking redress under the common law or under other statutes for conduct that could be redressed under the Act. See § 8-19-15. The defendants misconstrue the nature of the certification order. As we have noted above, the trial court specifically declined *1184 to certify the fraud-based claims. We see no preemption in this case. We find no error in the trial court's class-certification order. That order is affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, BROWN, and JOHNSTONE, JJ., concur. LYONS, J., recuses himself. [1] Laboratories Cheminova Internacional has not been served.

June 30, 2000

c7cfb67a-dec2-43e6-8fbc-d588c28b1a25

Ex Parte Usrey

777 So. 2d 66

1961859

Alabama

Alabama Supreme Court

777 So. 2d 66 (2000) Ex parte Clint C. USREY. (Re Clint Usrey v. Wal-Mart Stores, Inc.) 1961859. Supreme Court of Alabama. June 23, 2000. *67 John T. Robertson IV of Henslee, Robertson & Strawn, L.L.C., Gadsden, for petitioner. Charles F. Carr, Glenn E. Ireland, and Sarah J. Carlisle of Carr, Allison, Pugh, Oliver & Sisson, P.C., Birmingham, for respondent. PER CURIAM. The opinion of July 31, 1998, is withdrawn and the following opinion is substituted therefor. Clint C. Usrey filed an action against Wal-Mart Stores, Inc., seeking 1) workers' compensation benefits and 2) damages based on a claim that he had been wrongfully discharged, in violation of Ala.Code 1975, § 25-5-11.1, as retaliation for seeking workers' compensation benefits. Wal-Mart filed a motion for a summary judgment, and Usrey responded with evidentiary filings in opposition to the motion. Following a hearing, the circuit court entered a summary judgment for Wal-Mart on the wrongful termination claim and made that summary judgment final, pursuant to Rule 54(b), Ala. R. Civ. P. The Court of Civil Appeals, on June 6, 1997, affirmed, without an opinion. Usrey v. Wal-Mart Stores, Inc., (No. 2960170) 720 So. 2d 1064 (Ala. Civ.App.1997) (table). This Court granted Usrey's petition for a writ of certiorari because the Court of Civil Appeals' decision appeared to conflict with prior decisions. Usrey was continuously employed with Wal-Mart from June 20, 1990, until his termination on December 14, 1994. He began working at the Wal-Mart store in Douglasville, Georgia, and he transferred to the Anniston store in 1991. While working as a cashier on February 23, 1994, *68 he injured his back when he lifted a 25-pound bag of dog food to scan it for a price. He immediately reported the injury to his supervisor. Usrey's supervisor sent him for medical treatment. Usrey reported for work the next day. The store manager called Usrey into his office and, in front of Usrey's supervisor, told Usrey that if he hired an attorney he would be fired. Several days later, Usrey's supervisor placed him on medical leave of absence as a result of the injury.[1] Upon returning to work after being released to light-duty work by his treating physician, Usrey claims, he was treated rudely by Wal-Mart supervisors and managers, and he says that such conduct had not occurred before his injury. Usrey further contends that he was never paid any benefits for not being able to work, and that some of his medical expenses were paid to a point but then even they were stopped. After Usrey returned to work, he told his supervisor that he had hired an attorney because "workers' compensation was not paying for nothing." Shortly after this conversation, the store manager fired Usrey. A summary judgment should be entered only upon a showing "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala. R. Civ. P. "[A] court may not determine the credibility of witnesses on a motion for summary judgment." Phillips v. Wayne's Pest Control Co., 623 So. 2d 1099, 1102 (Ala.1993). In reviewing a summary judgment, this Court is to view the evidence in a light most favorable to the nonmovant and to resolve all reasonable doubts against the movant. Culbreth v. Woodham Plumbing Co., 599 So. 2d 1120 (Ala.1992). A nonmoving party can defeat a properly supported summary judgment motion by presenting substantial evidence creating a genuine issue of material fact. Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So. 2d 1349 (Ala.1994); Ala.Code 1975, § 12-21-12. "[A]n employment contract is generally terminable at will by either party, with or without cause or justificationfor a good reason, a wrong reason, or no reason at all." Culbreth, supra, 599 So. 2d at 1121 (citations omitted). "However, with regard to dismissals based on the filing of [workers'] compensation claims, the legislature has carved out an exception to this general rule." Culbreth, supra, 599 So. 2d at 1121 (citations omitted). Section 25-5-11.1 provides: Usrey established a prima facie case of retaliatory discharge by presenting evidence to support his contentions that he was injured on the job, that his injury prevented him from working for a period of time, and that he was discharged shortly after his employer learned that he had taken steps toward filing a workers' compensation claim based on the injury. See Culbreth, supra. The burden then shifted to Wal-Mart to present evidence to support its assertion that Usrey was terminated for a legitimate reason; if it did so, then Usrey would have to produce rebuttal evidence tending to show that the reason given by Wal-Mart was not true but was a pretext for an otherwise impermissible termination. Id. Wal-Mart alleges that Usrey was terminated solely for sexually harassing a female coworker, that his conduct violated the company's sexual-harassment policy, and that the policy clearly states that any offender could face termination. Specifically, Wal-Mart submitted evidence that on November 29, 1994, Usrey rubbed the coworker's back and made a comment to the effect that "he could tell [she] was wearing a bra but he knew she wasn't wearing bloomers because her `butt jiggled' while she was walking." In support of its asserted reason for discharging Usrey, Wal-Mart made evidentiary filings with its motion for summary judgment. These filings included certain business records regarding employees who had filed workers' compensation claims and affidavits from Wal-Mart managers and employees. Among the affidavits were one from the coworker who had complained that Usrey had made the sexually harassing comment to her, one from a fellow employee who said that she witnessed the incident, and one from Larry Kilgore, the manager who terminated Usrey. According to the affidavits submitted by Wal-Mart, after the harassing comment was made the coworker reported the incident to the assistant manager, Keith Starnes, who then reported the incident to the support manager, Debra Frey. Frey stated that she discussed the matter with the coworker and the witness and then reported the incident to Kilgore. On December 14, 1994, Kilgore and assistant manager Dot Miller met with Usrey to discuss the incident, and at that meeting Usrey gave the following written statement: (Emphasis added.) Kilgore stated in his affidavit that he never told Usrey that he would fire him if he hired an attorney for his workers' compensation claim and that until this action was filed he did not know that Usrey had obtained an attorney. Dolores Steward, the customer-service manager whom Usrey told that he had hired an attorney, submitted an affidavit stating that she did not have a discussion with Kilgore about whether Usrey had obtained an attorney to represent him in regard to his workers' compensation claim. Frey and Miller also submitted affidavits, but not Starnes. The burden then shifted to Usrey to go forward with rebuttal evidence tending to prove that Wal-Mart's stated reason was not true. Usrey responded with evidence that included his affidavit and the affidavit of Teresa Lumpkin, a former coworker. Usrey also filed "performance reviews" from the years he had worked at Wal-Mart. *70 In his affidavit, Usrey stated that after he reported his injury to his supervisors they acted as if they were upset with him for being injured at work. He stated that, although he had been treated relatively well by the managers at Wal-Mart up until the time of his injury, after the injury he was treated rudely, the managers acted cold toward him, and he could not do anything to their satisfaction. Usrey said that he was "upset about the way that [he] was being treated because of his injury, and [he] made a comment to Debra Frey that [he] would see an attorney about it." He stated that he then saw Frey talking to Kilgore and pointing toward him, and that the next day he was taken to Kilgore's office, where Kilgore told him that, if he hired an attorney in connection with his on-the-job injury, he would be fired as soon as Kilgore learned of it.[2] Kilgore denied making this statement. However, Kilgore fired Usrey just days after Usrey informed Frey that he had hired an attorney because "workers' compensation was not paying for nothing." Usrey testified that during the meeting in Kilgore's office, Kilgore would tell him only that he had received a sexual-harassment complaint and asked him if he had been talking to any associates about bloomers and bras. Usrey said no. Then, without telling him who, Kilgore asked if he had said anything about how someone looked. It was only then, Usrey testified, that he "finally realized" that Kilgore must have been talking about a conversation he had had with a coworker wherein he told her "that her hair looked good and that her outfit was cute."[3] According to Usrey, Kilgore would not tell him what the allegation was and would not let him talk to his accusers. It was at this time that, at Kilgore's request, Usrey gave the statement quoted above saying that "[n]othing was never said out of the way about sexes things or anything like that."[4] Kilgore then terminated Usrey. Usrey further alleges that Wal-Mart had decided to terminate him, before questioning him or informing him that a complaint even existed. This allegation is supported by Usrey's testimony that the paperwork for his termination was already filled out and sitting on Kilgore's desk when Usrey was called in to give a statement regarding the incident. Usrey clocked in that day at 2:50 p.m., and he was terminated by 3:30 p.m. To justify the hasty termination, Wal-Mart relies on the fact that its sexual-harassment policy clearly provides that termination is a possible disciplinary action. However, the same policy also clearly provides that management "must thoroughly investigate" a report of sexual harassment, and that "[f]ollowing the investigation ..., if the complaint is determined to be valid, *71 the offender will face ... appropriate disciplinary action based upon the severity of the harassment and other relevant factors." (Emphasis added.) Even though he denied making the sexually harassing comment, Usrey was fired that same day, from a job he had held for over four years without any similar complaints having been made. He even presented evidence, by way of evaluations of his past performance, indicating that no such incident had taken place before and that there had never been any sort of complaint about him in the past. Of the performance evaluations filed with the court, one was a "reference check" conducted by Wal-Mart personnel; it stated that Usrey "transferred from Douglasville, Ga.was given a good reference from them at the time of his transfer." Usrey was given an above-average rating in the other two performance reviews, one from 1992 and one from 1993. These reports contained comments stating that he was "dependable" and "flexible," that he "will work anywhere he is told," that he is "a friendly associate," that he is "rarely late," and that he is "courteous toward customers and always offers help." Also, Lumpkin stated in her affidavit that she finds any allegations of sexual harassment against Usrey to be totally inconsistent with any behavior of Usrey that she had personally observed in the numerous times she had been around him at work. Additionally, Usrey's affidavit stated that he had previously had problems with the coworker who Wal-Mart alleges made the sexual-harassment complaint against him. Usrey had reported the coworker for taking breaks that were longer than allowed. As a result of Usrey's report, the coworker had received a reprimand for her actions. Lumpkin testified to this incident as well and also testified that this coworker is "very flirtatious" with the male members of management at the store. Lumpkin even said that the coworker had indicated to her that she was seeing one of the managers romantically. Lumpkin stated that, knowing what she did about the nature of the coworker who made the complaint, that coworker's relationship with male members of management at Wal-Mart, and Wal-Mart's claim that Usrey was terminated for making such statements as he is claimed to have made to this coworker, she finds the claim to be ridiculous and that she "almost laughed out loud" when she first heard it. Lumpkin also added that, unlike the coworker making the claim and unlike the person who claims to have witnessed the incident of harassment, she is under no pressure not to reveal the facts surrounding this matter, because she is no longer employed by Wal-Mart. Usrey also presented evidence tending to prove that Wal-Mart had a pattern and practice of terminating employees who filed claims for workers' compensation benefits. Documents produced by Wal-Mart show that, as of the time that Kilgore fired Usrey, every employee who had suffered a compensable injury and had returned to work at the Anniston store had been fired or had resigned. Usrey himself, as well as Lumpkin, testified to this. Usrey testified by affidavit that "[every] person that I know of [who] has been injured at [the Anniston store] has been terminated" shortly after he or she returned to work. Lumpkin asserted that it was "general knowledge at the store that anyone that had been injured on the job in a workman's compensation covered situation would be mistreated by the store thereafter." Lumpkin testified that she was treated differently by Wal-Mart management after she returned to work from suffering an on-the-job injury. She stated that she was "forced to resign" after her injury because, she said, Wal-Mart management abused her, criticized her, and made her miserable in her employment. She, like Usrey, testified that she could do nothing to please the Wal-Mart managers after she was injured. Lumpkin also stated that Wal-Mart had falsified its records pertaining to workers' compensation injuries, *72 which it presented in support of its motion for summary judgment, in regard to the reason for her termination. As noted above, Lumpkin stated in her affidavit that her reason for resigning was that she was mistreated after suffering an injury covered by the workers' compensation statute. However, on its "exit interview" form, Wal-Mart stated that she was voluntarily terminated because of "sickness in family." Lumpkin stated that this was not true. The record contains numerous disputed questions of fact surrounding this issue that should be determined by a fact-finder. The two cases cited by the Court of Civil Appeals in its unpublished memorandum of affirmance are not sufficiently similar factually to the case before us to serve as a basis for affirming. See Graham v. Shoals Distributing, Inc., 630 So. 2d 417, 418 (Ala. 1993), and Noble v. AAA Plumbing Pottery Corp., 677 So. 2d 765 (Ala.Civ.App. 1995). These are simply two cases in which summary judgments for the employers were affirmed. Among other distinctions, no rebuttal evidence of pretext was presented in either case. There are several other retaliatory-discharge cases, all of which were cited in Usrey's petition, that are more factually similar to this case. In each of those cases, it was held that a genuine issue of material fact existed. See Culbreth, supra; Bird v. Nail Air Freight, Inc., 690 So. 2d 1216 (Ala.Civ.App.1996); and Carroll v. A.J. Gerrard & Co., 684 So. 2d 128 (Ala.Civ. App.1995). The employer in each of those cases moved for a summary judgment and in support of its motion presented evidence indicating that it had had a legitimate reason for terminating the employee. In Culbreth and Bird, the only rebuttal evidence presented by the employee was his own affidavit. In Carroll, the rebuttal evidence consisted of the employee's affidavit and that of one other coworker, just as in this case. In each of these three cases, the reviewing court held that the summary judgment was not appropriate. The Court of Civil Appeals' decision in this present case conflicts with the decisions in Culbreth, Bird, and Carroll. In Culbreth, when Culbreth returned to work after recovering from his on-the-job injury, he was told that the company no longer had a job for him. The employer presented evidence indicating that Culbreth's position had been filled while he was on a leave of absence and that it did not have enough work to continue his employment. The only evidence Culbreth presented to indicate that the employer's explanation was a pretext was his own affidavit stating that, when he returned to work, the owner and another member of management went into an office for 10 to 15 minutes and then came out and told him that while he was out they had hired someone else to replace him. The circuit court entered a summary judgment for the employer. This Court reversed, holding that Culbreth's evidence was sufficient to bring the employer's reason into question and holding that a jury question existed as to whether the employer's given reason was indeed legitimate. We noted that the delay of 10 to 15 minutes in giving Culbreth a reason for his termination could serve as circumstantial evidence from which a jury could infer that the employer fabricated the asserted reason. Surely, if a reasonable person could infer that the reason in Culbreth was fabricated in 10 to 15 minutes, then one could infer that a claim such as Wal-Mart's claim in the present case could be fabricated in the few days between the time when Wal-Mart learned that Usrey had hired an attorney and the time when it terminated his employment. In Bird, as in the case before us, the employee testified that his employer became upset with him for being injured and missing work to recover. However, the employer testified that he fired Bird because, he said, Bird had threatened to destroy the employer's building and delivery trucks. In support of its reason, the employer presented affidavits from four employees who stated that they had heard *73 Bird make the alleged threats. In opposition, Bird presented only his own affidavit and excerpts from his deposition. The Court of Civil Appeals, in reversing a summary judgment for the employer, held that Bird had presented evidence sufficient to create a genuine issue of material fact, noting that the record merely contained "disputed testimony" and the jury might simply believe one party's assertions over the other's. 690 So. 2d at 1219. This Court denied the employer's petition for certiorari review. Ex parte Nail Air Freight, Inc., 690 So. 2d 1219 (Ala.1997). In Carroll, the employer presented evidence supporting its assertion that in the past Carroll had received oral and written reprimands for low production and that he had urged another coworker to slow down his production. Like Wal-Mart, that employer attempted to rely on the fact that the alleged practices were potential grounds for dismissal and the fact that the employee was aware that they were. Like Usrey, Carroll presented his own affidavit, in which he claimed that the administration became upset with him about his workers' compensation claim, and the affidavit of a coworker, who testified that the employer had a pattern and practice of reacting in this way to workers' compensation claims and of terminating employees based on their filing claims. The Court of Civil Appeals in Carroll, viewing the evidence in a light most favorable to the nonmoving party, held there was sufficient evidence to create a genuine issue of material fact as to whether the reason given by the employer was a pretext for an impermissible retaliatory discharge. The employer's summary judgment was reversed. Usrey presented substantial evidence creating a genuine issue of material fact that should be presented to a jury. "Alabama's [workers'] compensation laws should be liberally construed in favor of the employee in order to advance and effectuate their beneficent purposes." Culbreth, 599 So. 2d at 1123 (citing Hilyard Drilling Co. v. Janes, 462 So. 2d 942 (Ala. Civ.App.1985)). To hold that Wal-Mart's asserted reason is conclusively legitimate would undermine the beneficent purposes of § 25-5-11.1. The record of this case is full of disputed testimony. A jury could simply believe Usrey's evidence over Wal-Mart's. Usrey's evidence created a genuine issue of material fact as to whether Wal-Mart's stated reason for terminating Usrey was merely a pretext for an otherwise impermissible discharge. Therefore, we reverse the judgment of the Court of Civil Appeals and remand the case for further proceedings consistent with this opinion. APPLICATION FOR REHEARING DENIED; OPINION OF JULY 31, 1998, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED. LYONS, JOHNSTONE, and ENGLAND, JJ., concur. COOK, J., concurs specially. HOUSTON, J., concurs in the result. HOOPER, C.J., and MADDOX, SEE, and BROWN, JJ., dissent. COOK, Justice (concurring specially). On original deliverance I dissented from the plurality opinion. On the application for rehearing, I have restudied the arguments and supporting materials. I conclude that the evidence presented by Usrey, as outlined in the opinion, does create a genuine issue of material fact as to whether WalMart's stated reason for terminating Usrey was a pretext for an impermissible termination. I therefore concur in the opinion and the judgment and in the denial of the application for rehearing. HOUSTON, Justice (concurring in the result). I concur in the result. I believe that there was evidence, sufficient to go to a jury, indicating that Wal-Mart intended to discharge Clint C. Usrey for an illegal reasoninstituting or maintaning *74 a claim against Wal-Mart for workers' compensation benefits. However, at a time when it had not acted on that illegal reason, Wal-Mart was given a perfectly legal reason for discharging him sexual harassment.[5] I believe that it is for the finder of facts to determine whether Usrey's alleged sexual harassment of a female coworker played any part in Wal-Mart's decision to terminate Usrey; and, if it is so determined, then the finder of facts must find for Wal-Mart. It is only if the finder of facts determines that Usrey was discharged solely for instituting or maintaining a claim or an action for workers' compensation benefits that Usrey may recover against Wal-Mart for wrongful termination. HOOPER, Chief Justice (dissenting). There are certain things for which an employer can expect to be sued, and, if the employer loses, he can expect to pay royally. Racial discrimination is one of those things. Sexual harassment is another. Wal-Mart Stores, Inc., terminated Clint Usrey because of allegations by a female coworker and a witness regarding what can at best be described as "shabby" treatment of that coworker while she was on the job. Because Wal-Mart took swift and effective action to prevent such behavior by an employee, this Court places Wal-Mart in a "catch-22"retain an employee who harasses women on the job and face a possible sexual-harassment lawsuit, or terminate that employee and face a retaliatory-discharge lawsuit. The main opinion is wrong on the law and the facts. Here is the problem with the opinion with respect to the law. Ala.Code 1975, § 25-5-11.1, states: (Emphasis added.) The word "solely" means just what it says. If an employer terminates an employee for one reason and one reason only, i.e., that the employee filed a workers' compensation action, then that employer has violated the statute. In this case, the question is whether Wal-Mart terminated Usrey for one particular reasonbecause he had hired an attorney to handle his workers' compensation case. The trial court correctly determined that, aside from Usrey's making a workers' compensation claim or filing an action, Wal-Mart had sufficient reason to terminate Usrey's employment. Even when construed in a light most favorable to Usrey, the facts in this case cannot support allowing this case to go before a jury. Construing the evidence in a light most favorable to Usrey, as the nonmovant, does not mean that the movant and this Court must believe without question everything that comes out of his mouth. At best, that would be a naive view for a court or an employer to take. While Usrey was being treated for the back injury he suffered in February 1994, Wal-Mart required him to take a drug test. He tested positive for marijuana use and was suspended for 30 days. However, he claimed not to have used marijuana since 1992. When he returned to work in November 1994, and in compliance with instructions of Usrey's doctor, Wal-Mart assigned Usrey to the light-duty position of "door greeter" instead of his old job of *75 cashier. He began the door greeter's job on November 10, 1994. During the first week of December 1994, a female coworker complained to her supervisor that Usrey had improperly touched her and made lewd comments to her. Debra Frey, the support manager of the Anniston Wal-Mart store, where Usrey was employed, met with both the complaining employee and a witness to the incident, to discuss the matter. Frey reported the complaint to Larry Kilgore, the store manager. The main opinion states that "[a]fter Usrey returned to work, he told his supervisor that he had hired an attorney" to handle his workers' compensation claim and that "[s]hortly after this conversation, the store manager fired Usrey." 777 So. 2d at 68. But it could also be said that Usrey was fired shortly after his supervisor was informed that Usrey had improperly touched another employee and made lewd comments to her. Those joining the main opinion, expressing their own judgment, suggest that termination was too severe a discipline to impose on Usrey, considering the acts complained of. The complaining employee claimed in an affidavit that on November 29, 1994, Usrey had rubbed her back and made a "comment to the effect that he knew I was wearing a bra but he could tell I was not wearing bloomers because my butt was jiggling when I walked." A second Wal-Mart worker, who says she was present during that incident, confirmed the complaining employee's statements about Usrey's statements and actions. The complaining employee and the second worker said that Usrey's comments made them feel uncomfortable. Usrey denied making the comments, but the statements of the two witnesses directly contradicted his denial. The main opinion implies that Wal-Mart's investigation was inadequate. What more could Wal-Mart have done? On December 14, 1994, Kilgore and the assistant store manager, Dot Miller, met with Usrey to discuss the incident. Usrey initially denied that the incident took place at all. Later, he admitted that the incident occurred but said that he "was only joking around." During the meeting, Usrey wrote the following description of the incident: On that same day, Wal-Mart terminated Usrey's employment. Wal-Mart's decision to terminate Usrey's employment may appear severe to those joining the main opinion. Why should Wal-Mart have given Usrey the benefit of the doubt over the statements of two other employees? Usrey had demonstrated a pattern for at least shading the truthas demonstrated by his statement that he had not used marijuana since 1992, his initial denial of the incident with the two female employees, and his written description of the incident. Adding to that the sexual-harassment complaint, I conclude that Wal-Mart presented sufficient evidence that it did not terminate Usrey solely for the reason that he had filed a claim for workers' compensation. At that point, Wal-Mart would have been entitled to a summary judgment on the retaliatory-discharge claim if Usrey did not rebut Wal-Mart's showing. It was then Usrey's duty to present sufficient evidence that Wal-Mart's stated reason was not the true reason but was merely a pretext. "The plaintiff does not have to `prove' that the employer's stated reason is not [the true reason] unless the defendant's evidence is sufficiently certain, without more evidence from the plaintiff, to support a [judgment as a matter of law]." Culbreth v. Woodham Plumbing *76 Co., 599 So. 2d 1120, 1122 (Ala.1992); see Motion Industries, Inc. v. Pate, 678 So. 2d 724 (Ala.1996) (quoting Culbreth). Because Wal-Mart's evidence would be sufficient to require a judgment as a matter of law, Usrey should be required to "prove" that the stated reason was not the true reason. The main opinion does not even mention this evidentiary requirement that Usrey must meet. What evidence did Usrey offer to rebut Wal-Mart's evidence indicating that it had terminated Usrey for a legitimate reason? He filed two affidavits. One was his own, and the other was that of another former employee named Teresa Lumpkin. Usrey testified that Kilgore told him that he would be fired "on the spot" if he hired an attorney in connection with his on-the-job injury. Kilgore denied making the statement. Usrey said that Kilgore made that statement on February 24, 1994. (Usrey Deposition, p. 122.) Yet, Usrey was not at that time fired for hiring an attorney. He was not fired for another 10 months. In Usrey's deposition and in his affidavit, he denied the allegations made by the complaining female employee and contradicted the affidavit given by the second employee. He gave a totally different rendition of the facts regarding the allegation of sexual harassment. Considering Usrey's difficulties in dealing with the truth, and considering that there were two witnesses to the sexual-harassment incident, Usrey's self-serving affidavit is less than convincing. Was Wal-Mart wrong to believe two of its other employees and not Usrey? I think not. Surely, liability for wrongful termination should not be based on such a decision by an employer. Wal-Mart has a very clear and well-published policy on sexual harassment. That policy includes the following statements: (Emphasis added.) Usrey should have been well aware of the consequences of his actions and comments. But perhaps that awareness of the seriousness of the allegation is why he originally denied that the incident ever took place. Wal-Mart had to act swiftly and effectively to avoid liability for sexual harassment. Henson v. City of Dundee, 682 F.2d 897, 902 (11th Cir.1982), (quoted in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, at 67, 106 S. Ct. 2399, 91 L. Ed. 2d 49 *77 (1986)). Meritor accepted the argument that to some extent an employer's liability should be based upon principles of agency. In that case, the EEOC had argued for "a rule that asks whether a victim of sexual harassment had reasonably available an avenue of complaint regarding such harassment, and, if available and utilized, whether that procedure was reasonably responsive to the employee's complaint." It argued, "If the employer has an expressed policy against sexual harassment and has implemented a procedure specifically designed to resolve sexual harassment claims, and if the victim does not take advantage of that procedure, the employer should be shielded from liability absent actual knowledge of the sexually hostile environment...." Meritor, supra, 477 U.S. at 71, 106 S. Ct. 2399. The United States Supreme Court accepted some of the EEOC's argument as to an employer's liability, but not all of it. Nevertheless, appropriate corrective action is critical to an employer's avoiding liability. See Fleming v. Boeing Co., 120 F.3d 242 (11th Cir.1997) (employer took swift and appropriate corrective action against employee who was sexually harassing coworker, and therefore employer was not directly liable for harassment). The main opinion also says that Usrey believes Wal-Mart had made the decision to terminate him, "before questioning him" about the complaint. 777 So. 2d at 70. Even if that allegation is true, and whether it is true is questionable, it would prove nothing. Wal-Mart had sufficient cause to terminate Usrey after hearing from two witnesses about his sexually inappropriate conduct. The main opinion also states: "Even though he denied making the sexually harassing comment, Usrey was fired that same day [i.e., the same day he was questioned about the alleged harassment]...." 777 So. 2d at 71. Somehow, those joining the main opinion think this statement is in Usrey's favor. However, Usrey denied making the comment, in the face of statements by two other employees indicating he had made the comment. He later changed his story and gave a very vague statement about what had happened, a statement that Wal-Mart could reasonably have construed to indicate that Usrey had made the comments complained of but thought they were innocent joking. His denial does not work in his favor. Even construed in the light most favorable to Usrey, the nonmoving party, the statements still do not help him, because they are speculative and conclusory. Perry v. Mobile County, 533 So. 2d 602 (Ala.1988). They prove nothing. According to the main opinion, Usrey's other rebuttal evidence, the Lumpkin affidavit, stated that "[Lumpkin found] any allegations of sexual harassment against Usrey to be totally inconsistent with any behavior of Usrey that she had personally observed in the numerous times she had been around him at work." 777 So. 2d at 71. Usrey and Lumpkin both claimed that Wal-Mart had a pattern and practice of terminating employees who filed claims for workers' compensation. Usrey testified that every person he knows who has been injured at Wal-Mart has been terminated or has been forced to quit. He could name threeLumpkin, James Brasher, and Paylor Parrish. Of these three, only Lumpkin provided an affidavit. The main opinion points out that Lumpkin testified "that Wal-Mart had falsified its records pertaining to workers' compensation injuries, which it presented in support of its motion for summary judgment, in regard to the reason for her termination." 777 So. 2d at 71-72. Lumpkin overstated the case, however. The records Wal-Mart provided showed that Lumpkin had voluntarily terminated her employment with Wal-Mart because of family sickness. Lumpkin admitted in her affidavit that she quit voluntarily. She disagreed with the reason stated in Wal-Mart's records. She said she quit because she was mistreated after returning to work following her injury. In her affidavit, she never said that she told Wal-mart that mistreatment was the reason she was quitting. *78 In fact, she admits that she quit work voluntarily. Lumpkin gave her opinion as to why she quit work with Wal-Mart. Her testimony is irrelevant for determining whether Wal-Mart's termination of Usrey was improper. These statements by Usrey and Lumpkin are little more than unsupported allegations; they are not sufficient evidence to "prove" that Wal-Mart's stated reason was not the true reason, the requirement in such a case as this. See Culbreth, supra, at 1122. Because of decisions such as this one issued today, employers in the situation Wal-Mart was in face a catch-22 when dealing with an employee who files a workers' compensation claimto terminate and face the costs of defending a retaliatory-discharge claim under § 25-5-11.1, Ala. Code 1975, or not to terminate, and face a possible sexual-harassment action by the complaining employee for millions of dollars. Those joining the main opinion, in a haste to ensure that this case goes before a jury, ignore certain facts presented to the trial court and mischaracterize the burden of proof applicable in retaliatory-discharge actions like this one. Therefore, I respectfully dissent. MADDOX, Justice (dissenting). An employee carries the burden of establishing a prima facie case of retaliatory discharge by presenting substantial evidence indicating that his or her employment was terminated solely because he or she filed a workers' compensation action against the employer. See § 25-5-11.1, Ala.Code 1975. I do not believe the employee carried this burden; I conclude that the trial judge properly entered the summary judgment for the employer. SEE, J., concurs. [1] When Usrey was taken for treatment after his injury, he was given a drug test; that test showed marijuana in his system. He was placed on a 30-day drug suspension and was required to undergo counseling. In his affidavit, Usrey stated that he was on prescription medication at the time of the drug test and that, although the medication had correctly been identified on earlier drug tests, it did not show up on this test. He further stated that he had smoked marijuana in 1992 in an effort to get rid of a migraine headache, but that he had not smoked marijuana within a year before this drug test. He argued that he did not think the results the doctor reported to him were his results and that if they were they were incorrect. Nevertheless, Usrey voluntarily complied with the suspension and did not challenge the test results. Usrey passed a drug screen before returning to work after the suspension and injury. Wal-Mart briefly noted the drug suspension in the statement of facts in its respondent's brief but did not mention it beyond that. The Chief Justice's dissenting opinion, however, uses this incident to conclude that Usrey has "demonstrated a pattern for at least shading the truth," 777 So. 2d at 75, and that he has "difficulties in dealing with the truth." 777 So. 2d at 76. The drug suspension is irrelevant to the issue before this Court, because no evidence has been submitted or heard on this issue and because Wal-Mart did not rely on the drug suspension as providing a permissible reason for terminating Usrey's employment. The Chief Justice's dissent has inappropriately drawn inferences against Usrey, the nonmoving party, on an issue that is not relevant to this case. [2] Usrey testified that Kilgore made this statement on February 24, 1994. The Chief Justice's dissent takes issue with the fact that Usrey was not fired until 10 months later. 777 So. 2d at 76. However, it was not until 10 months later that Usrey told his supervisor that he had hired an attorney. [3] The Chief Justice's dissent adopts Wal-Mart's argument that "Usrey initially denied that the [sexual-harassment] incident took place at all," but that "[l]ater, he admitted that the incident occurred but said that he `was only joking around.'" 777 So. 2d at 75. However, Usrey expressly denied in his deposition, in his interrogatory responses, and in his affidavit that he made the alleged comment or that he touched the coworker. He further testified that he did not even know what the alleged comment was until his attorney found out for him after filing this action. It is consistent with this denial that Usrey said "no" when Kilgore asked him if he had said anything to an associate about bloomers and bras. To say that he later admitted to it when Usrey explained that he "finally realized" that Kilgore must have been talking about a conversation he had had a few days earlier wherein he had complimented a coworker on her outfit is an inaccurate characterization of the evidence in the record, or at least a failure to draw reasonable inferences in favor of the nonmoving party. [4] Although Usrey was required to make a written statement regarding the incident, there is no written statement or report of the complaint from either the alleged victim or the witness. [5] I am persuaded that Wal-Mart thoroughly investigated the sexual harassment complaint. Wal-Mart obtained a statement from the alleged victim and the only other witness to the incident. Wal-Mart then confronted Usrey with this. Usrey first denied that anything had happened, but later confirmed an encounter with the victim and her witness and stated that the encounter was not sexual, but that the alleged victim and the witness may have concluded that it was: "Nothing was never said out of the way about sexes thing or anything like that. Perhaps she or they just took it the wrong way."

June 23, 2000

e396e00a-bc28-486c-8762-01b36fc956fe

Southern United Fire Ins. Co. v. Pierce

775 So. 2d 194

1990443

Alabama

Alabama Supreme Court

775 So. 2d 194 (2000) SOUTHERN UNITED FIRE INSURANCE COMPANY v. David PIERCE. 1990443. Supreme Court of Alabama. July 21, 2000. *195 Anthony M. Hoffman of Zeiman, Speegle, Jackson & Hoffman, L.L.C., Mobile, for appellant. Edward Massey of Clay, Massey & Associates, P.C., Mobile, for appellee. HOOPER, Chief Justice. David Pierce purchased an automobile insurance policy from Southern United Fire Insurance Company ("Southern United") in September 1998. In December 1998, Pierce wrecked his car and filed a claim. Southern United denied coverage. Pierce sued, claiming breach of contract and bad-faith refusal to pay the claim. Southern United appeals from the denial of its motion to compel arbitration of the claims. We reverse and remand. The policy issued to Pierce in September 1998 contains the following arbitration provision: Although the trial court gave no reason for denying Southern United's motion, it is clear that the trial court relied on our holding in Southern United Fire Insurance Co. v. Knight, 736 So. 2d 582 (Ala. 1999). In Knight, this Court held that the particular insurance transaction may, as one of several transactions, affect interstate commerce merely by providing the company with sufficient funds to issue other policies that individually involve interstate commerce. We declined to say that such a connection was sufficient to invoke the FAA because in Knight the record before us contained no evidence indicating that the particular transaction affected interstate commerce aside from evidence that the policy's coverage territory extended outside Alabama. Southern United had the burden to show that the transaction involved interstate commerce. There was not sufficient evidence to support Southern United's position; therefore, this Court affirmed the trial court's order denying arbitration. In this case, Southern United, seeking to comply with our holding in Knight, presented an affidavit with its motion to compel arbitration. The affidavit was given by Robert Heffner, Jr., an employee of Southern United who had personal knowledge of the matters presented in the affidavit. This affidavit shows not that Pierce's transaction is simply "one of many such transactions that help fund Southern United's business, thus enabling it to issue other policies that substantially affect interstate commerce," but that the issuance of this policy alone substantially affects interstate commerce. 736 So. 2d at 586. Heffner avers that Pierce's transaction directly affects interstate commerce. First, Southern United is not merely an Alabama company; it is a multistate business, with offices in Georgia, Mississippi, Louisiana, and Texas, and its parent company is an Illinois corporation. Second, Southern United pooled the premiums it obtained from Pierce with other premiums, not for the purpose of funding the company, but for the purpose of paying claims not only in this state but in other states. Third, the sale of each policy in Alabama is affected by the number of policies Southern United sells in other states. Finally, with respect to the policies sold in this state, more than 50% of the premium is "ceded to out-of-state reinsurers." Out-of-state reinsurers, likewise, substantially fund claims paid within this state. The evidence presented by Southern United in support of its motion to compel arbitration was undisputed. The only evidence Pierce presented in reply was the affidavit of his mother. This affidavit stated that all transactions in connection with the sale of the insurance took place in Mobile County. She further stated that the policy related to Pierce's personal use of the car and not any commercial use. This case is distinguishable from Knight, in that here Southern United presented evidence to support its assertion that this individual transaction affects interstate commerce. The trial court erred in denying Southern United's motion. We reverse and remand for proceedings consistent with this opinion. REVERSED AND REMANDED. MADDOX, SEE, LYONS, and BROWN, JJ., concur. HOUSTON, COOK, JOHNSTONE, and ENGLAND, JJ., dissent. HOUSTON, Justice (dissenting). I agree that Southern United Fire Insurance Company established a sufficient *197 interstate-commerce connection to invoke the FAA. However, we can affirm the trial court's order if it is supported on any valid legal ground. Smith v. Equifax Servs., Inc., 537 So. 2d 463 (Ala.1988). Therefore, I would affirm for the reasons stated in my dissent in American Bankers Insurance Co. of Florida v. Crawford, 757 So. 2d 1125 (Ala.1999). I continue to adhere to the view stated therein that "[b]ecause [Ala. Code 1975,] § 27-14-22, an `insurance-specific' statute, has within it the § 8-1-41(3) prohibition on the specific performance of arbitration agreements, § 27-14-22 itself provides everything required by the McCarran Ferguson Act to `reverse-preempt' the FAA." 757 So. 2d at 1138. I will adhere to this position until all the Justices elected or appointed to this Court have addressed the issue. COOK and ENGLAND, JJ., concur.

July 21, 2000

50db8c01-dca7-47e9-a361-3042dc56fbe9

Ex Parte Stamey

776 So. 2d 85

1981629

Alabama

Alabama Supreme Court

776 So. 2d 85 (2000) Ex parte Gary STAMEY and Deborah Stamey. (In re Bernard H. Eichold II, in his capacity as Health Officer of Mobile County, Alabama v. Jackie Easter et al.) 1981629. Supreme Court of Alabama. June 30, 2000. *86 Richard L. Thiry and Russel A. McGill of Thiry & Caddell, Mobile, for petitioners. Barre C. Dumas of Dumas & McPhail, L.L.C., Mobile, for Green Tree Financial Corp. Cecily Kaffer Rothrock and Michael A. Youngpeter of Rothrock, Hannan & *87 Youngpeter, Mobile, for Hallmont Homes, Inc., Jarod Hall, and Gaylon Hall. HOUSTON, Justice.[1] Gary Stamey and Deborah Stamey, third-party plaintiffs in an action currently pending in the Mobile Circuit Court, petition for a writ of mandamus directing the trial court to vacate its order compelling arbitration of the Stameys' claims against Green Tree Financial Corporation, Hallmont Homes, Inc., and Hallmont employees Jarod Hall and Gaylon Hall. We deny the writ. In December 1996, the Stameys contracted with Hallmont Homes, Inc., which is operated by Jarod Hall and Gaylon Hall, to purchase land and a mobile home. The contract also included assurances that Hallmont would prepare a foundation for the mobile home and would install a septic system and a light pole. The Stameys claim that the septic system and the light pole were never installed. The Stameys had borrowed money from Green Tree to pay for these purchases and installations. Included in the financing agreement between Green Tree and the Stameys was this arbitration provision: Dr. Bernard Eichold II, in his capacity as health officer of Mobile County, sued for injunctive relief against the Stameys, alleging that their property was in violation of state health lawsspecifically, his complaint alleged a violation concerning the septic system on the Stameys' property. The Stameys filed an answer, along with a third-party complaint against Hallmont and Jarod Hall and Gaylon Hall (hereinafter all collectively referred to as "Hallmont"), and Green Tree, alleging conversion, fraud, and breach of contract. The Stameys contend that Hallmont and/or Green Tree caused the problem with the septic system for which the Stameys were sued. Hallmont and Green Tree both moved the trial court to compel arbitration of the claims asserted against them. Hallmont was not a signatory to the arbitration agreement. The trial court granted the motions to compel. This Court has held that when the issue raised in a petition for the writ of mandamus is the correctness of a ruling on the question of arbitrability, that ruling is reviewed de novo. Ex parte Roberson, 749 So. 2d 441, 446 (Ala.1999). It is undisputed that the Stameys voluntarily and knowingly entered into the arbitration agreement with Green Tree. We have reviewed the Stameys' arguments concerning the arbitration provision as they relate to their claims against Green Tree, and we find them to be without merit. See Northcom, Ltd. v. James, 694 So. 2d 1329 (Ala.1997), and Ex parte Isbell, 708 So. 2d 571 (Ala.1997). Green Tree presented the trial court evidence showing that the transaction on which the Stameys' claims are based involved interstate commerce. Exhibits to the Stameys' petition show that the Green Tree office the Stameys dealt with is located in Pensacola, Florida, and the Stameys acknowledged in the security agreement they signed that the contract involves a transaction in interstate commerce. Therefore, the trial court properly granted Green Tree's motion to compel arbitration. While the Stameys' contract with Green Tree contains an arbitration agreement, neither the sale contract between the Stameys and Hallmont nor any other document to which Hallmont was a signatory contained an arbitration agreement. Hallmont's motion to compel arbitration was based on the arbitration provision in the contract between Green Tree and the Stameys. Normally, in order to have a valid arbitration provision, there must be an agreement to arbitrate, and if no agreement exists, then a party cannot be forced to submit a dispute to arbitration. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995). The question whether one has assented to an arbitration provision is governed by ordinary principles of a state's common law and statutory law governing the formation of contracts. See Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989). Assent *89 to arbitrate is usually to be manifested through a party's signature on the contract containing the arbitration provision. However, both Federal courts and Alabama courts have enforced exceptions to this rule, so as to allow a nonsignatory, and even one who is not a party, as to a particular contract, to enforce an arbitration provision within that same contract. Two such exceptions apply to the present case. The first is an exception under a theory of equitable estoppel for claims that are so "intimately founded in and intertwined with" the claims made against a party that is a signatory to the contract. See Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir. 1993) (quoting McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir.1984)); see also Ex parte Napier, 723 So. 2d 49 (Ala.1998); Ex parte Gates, 675 So. 2d 371 (Ala.1996). The second exception arises from a third-party-beneficiary theory that affords the third party all the rights and benefits, as well as the burdens, of that contract, including those associated with arbitration. See Ex parte Dyess, 709 So. 2d 447 (Ala.1997); Ex parte Warren, 718 So. 2d 45 (Ala.1998); Georgia Power Co. v. Partin, 727 So. 2d 2 (Ala.1998); Infiniti of Mobile, Inc. v. Office, 727 So. 2d 42 (Ala.1999); Colonial Sales-Lease-Rental, Inc. v. Target Auction & Land Co., 735 So. 2d 1161 (Ala. 1999); see also McPheeters v. McGinn, Smith & Co., 953 F.2d 771 (2d Cir.1992); O'Connor v. R.F. Lafferty & Co., 965 F.2d 893 (10th Cir.1992); In re Prudential Ins. Co. of America Sales Practice Litigation All Agent Actions, 133 F.3d 225 (3d Cir. 1998); MS Dealer Service Corp. v. Franklin, 177 F.3d 942 (11th Cir.1999). In order for a party to be equitably estopped from asserting that an arbitration agreement cannot be enforced by a nonparty, the arbitration provision itself must indicate that the party resisting arbitration has assented to the submission of claims against nonpartiesclaims that would otherwise fall within the scope of the arbitration provisionto arbitration. See Ex parte Napier, 723 So. 2d at 53. All that is required is (1) that the scope of the arbitration agreement signed by the party resisting arbitration be broad enough to encompass those claims made by that party against nonsignatories, or that those claims be "intimately founded in and intertwined with" the claims made by the party resisting arbitration against an entity that is a party to the contract, and (2) that the description of the parties subject to the arbitration agreement not be so restrictive as to preclude arbitration by the party seeking it. See Id. In other words, the language of the arbitration agreement must be so broad that the nonparty could assert that in reliance on that language he believed he had the right to have the claims against him submitted to arbitration, and, therefore, that he saw no need to enter into a second arbitration agreement. Hallmont argued to the trial court that the arbitration agreement included in the Green Tree contract is broad enough to include the Stameys' claims against Hallmont. To determine whether Hallmont can enforce the arbitration agreement under this exception, we must look to the language of the arbitration agreement itself. As we stated above, the language of the agreement must be broad enough that it would give notice to the Stameys that they were agreeing to arbitrate claims not only between themselves and Green Tree but also between themselves and other entities involved in the transaction out of which the arbitration agreement arose, and that they were, thereby, assenting to arbitrate their claims against nonparties. In most of the cases that have come before this Court on an equitable-estoppel claim, we have not allowed the claims to be arbitrated, because the language of the arbitration provisions limited arbitration to the signing parties, so that there had been no assent on the part of the resisting party to arbitrate claims against nonsignatories. *90 See First Family Fin. Servs., Inc. v. Rogers, 736 So. 2d 553 (Ala.1999); Med Center Cars, Inc. v. Smith, 727 So. 2d 9 (Ala.1998); Ex parte Isbell, 708 So. 2d 571 (Ala.1997); Ex parte Martin, 703 So. 2d 883 (Ala.1996); Ex parte Jones, 686 So. 2d 1166 (Ala.1996); Ex parte Stallings & Sons, Inc., 670 So. 2d 861 (Ala.1995); see also David F. Sawrie, Equitable Estoppel and the Outer Boundaries of Federal Arbitration Law: The Alabama Supreme Court's Retrenchment of an Expansive Federal Policy Favoring Arbitration, 51 Vand. L.Rev. 721 (1998). In other words, within these arbitration provisions references to the parties specifically limited the claims that would be arbitrable under those provisions. For example, the arbitration agreement at issue in Med Center Cars read: Med Center Cars, 727 So. 2d at 13. (Emphasis added.) This Court wrote: Id. at 19. Because the agreement in Med Center Cars limited the claims that might be submitted to arbitration to those between the "buyer" and the "seller," the buyer, who was resisting arbitration, could not be found to have assented to have his claims against a nonparty lender submitted to arbitration. Med Center Cars applied the rule that if the arbitration provision is specifically limited to claims that arise between the parties to the contract, then any nonparties will not be able to enforce the arbitration agreement. However, this Court has also held that the language of other arbitration agreements was sufficiently broad to include claims against nonparties, and in regard to such agreements it has allowed nonparties to enforce the arbitration provisions against parties to the contract. See Ex parte Napier, 723 So. 2d 49 (Ala.1998); Ex parte Gates, 675 So. 2d 371; see also Sawrie, Equitable Estoppel and the Outer Boundaries of Federal Arbitration Law: The Alabama Supreme Court's Retrenchment of an Expansive Federal Policy Favoring Arbitration, 51 Vand. L.Rev. 721. For example, the arbitration provision in Napier read: Napier, 723 So. 2d at 51. (Emphasis added.) That arbitration provision in Napier contained no references to the parties that would impose a limitation on what claims would be arbitrated. We held that the provision was broad enough to include claims that were related to the contract because the language was sufficient to indicate that the party resisting arbitration had assented to submit its claims against nonpartiesclaims that otherwise would fall within the scope of the provisionto arbitration. Id. at 54. Is the arbitration provision included in the Green Tree contract broad enough to indicate that the Stameys assented to have their claims against Hallmontclaims that would otherwise fall within the arbitration agreementsubmitted to arbitration? In other words, is the arbitration provision involved in this action more similar to the arbitration provisions in the First Family line of cases or those in the Napier line of cases? The arbitration clause in this present case provides in pertinent part: "ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING FROM OR RELATING TO THIS CONTRACT OR THE PARTIES THERETO SHALL BE RESOLVED BY BINDING ARBITRATION." This provision does not specifically limit its applicability to only those claims between the Stameys and Green Tree. Instead it states that any dispute, claim, or controversy that either (1) arises out of the contract; (2) relates to the contract; or (3) relates to the parties to the contract, will be submitted to arbitration. Because the provision does not specifically limit arbitration to claims between the parties to the arbitration provision, we conclude that this arbitration provision is more like those provisions in Napier and Gates. Therefore, if the Stameys' claims against Hallmont (1) arise out of the contract, (2) relate to the contract, or (3) relate to the parties to that contract, as the arbitration provision requires, then they were properly submitted to arbitration. The contract between Green Tree and the Stameys is a document that represents the agreement of Green Tree to lend the Stameys the money to buy the mobile home, to buy the land, and to pay for the various installations, including the septic system. The sales contract between the Stameys and Hallmont represented Hallmont's sale of the mobile home to the Stameys and the promise of Hallmont to perform the various installations, including *92 the septic system. The Stameys' claims allege conversion, fraud, and breach of contract, all in connection with the installation of the septic system. These claims are related to the Green Tree contract in that the money Green Tree lent the Stameys went to pay for, among other things, the installation of that same septic system. Therefore, we conclude that the Stameys' claims against Hallmont are "intimately founded in and intertwined with" the Stameys' claims against Green Tree and that the Stameys are equitably estopped from arguing that their claims against Hallmont are not subject to arbitration. The exception for third-party beneficiaries of a contract also applies in this case. This exception can arise out of at least two different sets of facts. The first occurs when a third-party beneficiarya nonsignatory to the contractis attempting to resist arbitration. In that situation, this Court has held that the third-party beneficiary cannot both claim the benefit of the contract and avoid the arbitration provision contained within that contract. Dyess, 709 So. 2d at 451; Warren, 718 So. 2d at 47 n. 4. The second fact situation is the one present in this casea nonsignatory third-party beneficiary attempts to enforce the arbitration provision against a signatory to the contract. In these situations where "a nonsignatory to an agreement is a third-party beneficiary ... he is able to enforce the agreement." O'Connor, 965 F.2d at 901. Therefore, if Hallmont is a third-party beneficiary, then it should be able to enforce the arbitration provision included in the contract between the Stameys and Green Tree. Thus, we must determine whether Hallmont is a third-party beneficiary of that contract. A party claiming to be a third-party beneficiary, "must establish that the contracting parties intended, upon execution of the contract, to bestow a direct, as opposed to an incidental, benefit upon the third party." Weathers Auto Glass, Inc. v. Alfa Mut. Ins. Co., 619 So. 2d 1328, 1329 (Ala.1993) (quoted in Dyess, 709 So. 2d at 450.) In other words, Hallmont must show that the Stameys and Green Tree intended for Hallmont to receive a direct benefit from the financing contract. This issue will be determined with almost the same analysis as the estoppel issuethe intent of the parties as indicated by the language used. However, while we looked to the language of only the arbitration provision to answer the estoppel question, in order to determine the third-party beneficiary question we look to the language of the entire financing contract between the Stameys and Green Tree. We conclude that they did intend for Hallmont to receive a direct benefit. The financing contract is a standard contract that provides for a secured transaction in which Green Tree received a security interest in the manufactured home and in which Green Tree would pay Hallmont for the manufactured home on behalf of the Stameys. In other words, this contract allows Green Tree to pay the obligation of the Stameys to Hallmont. The section of the contract entitled "ITEMIZATION OF THE AMOUNT FINANCED" sets out the amounts that were to be "paid on [the Stameys'] behalf." Included in this chart are the amounts that were paid on behalf of the Stameys to Hallmont for the cost of the manufactured home, the cost of the land, and the cost of the installations. Furthermore, the language of the contract clearly shows that the parties contemplated Hallmont as a third-party beneficiary. The last section of the contract states: (Emphasis added.) By this section, the Stameys clearly waived the right to a jury trial, not against Green Tree, but against Hallmont"the seller." The language of the two sections mentioned in the two preceding paragraphs clearly indicates an intent on behalf of the Stameys and Green Tree to benefit Hallmont through the financing contract. Therefore, we conclude that Hallmont is a third-party beneficiary of the financing contract and that it has all the rights that exist under that contract. As a result, Hallmont can enforce the arbitration agreement set out in that contract. See Dyess, 709 So. 2d 447; O'Connor, 965 F.2d 893; MS Dealer Serv. Corp., 177 F.3d at 947. Hallmont has the right to enforce the arbitration agreement, under either the equitable estoppel theory or the third-party-beneficiary theory. Furthermore, we have reviewed the other issues raised by the Stameys with respect to their claims against Hallmont, and we find them to be without merit. The trial court properly submitted the Stameys' claims against both Green Tree and Hallmont to arbitration. WRIT DENIED. HOOPER, C.J., and MADDOX, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. COOK, J., concurs in the result. JOHNSTONE, J., dissents. [1] This case was originally assigned to another Justice on this Court; it was reassigned to Justice Houston on May 2, 2000.

June 30, 2000

3c9c1c72-979f-42ca-a2e5-e94511e123fb

Southern United Fire Ins. Co. v. Howard

775 So. 2d 156

1990482

Alabama

Alabama Supreme Court

775 So. 2d 156 (2000) SOUTHERN UNITED FIRE INSURANCE COMPANY, Consolidated Insurance Management Corporation, and Time Payment Plan v. David HOWARD. 1990482. Supreme Court of Alabama. July 21, 2000. *158 Michael D. Knight, P. Russel Myles, and Benjamin H. Kilborn, Jr., of McDowell, Knight, Roedder & Sledge, L.L.C., Mobile, for appellants. William D. Azar and Elizabeth C. Wible of Azar & Azar, L.L.C., Montgomery, for appellee. SEE, Justice. The defendants, Southern United Fire Insurance Company ("Southern"), Consolidated Insurance Management Corporation ("Consolidated"), and Time Payment Plan ("Time Payment") appeal from the trial *159 court's order denying their motion to compel arbitration of the plaintiff David Howard's claims. We reverse and remand. In 1997, Howard financed the purchase of an automobile from a Montgomery car dealership.[1] As a condition of financing, the lender required Howard to obtain an insurance policy covering the car. Howard applied for a six-month policy of insurance, and Southern issued one. Southern states that it mailed the policy to Howard, but Howard states that he does not remember receiving a policy from Southern in the mail. The evidence is undisputed that Howard paid premiums on the policy to cover the car for a period of six-months. The policy contains an arbitration provision.[2] Near the end of the six-month policy period, Southern mailed Howard an "Automobile Renewal Quotation," offering to renew Howard's existing policy under the same terms and conditions of coverage. The quotation offered Howard the option to renew his policy for an additional 12-month term, with the payment of the premium in installmentsthe "12-Month Policy Installment Payment Option." The evidence is undisputed that Howard selected the 12-Month Installment Payment Option. The quotation provides that "if you select the 12-Month Installment Payment Option, the Insurance Premium Finance Contract on the reverse side hereof provided *160 through Time Payment Plan ... shall govern." The evidence is undisputed that Howard signed the insurance-premium finance contract on the back of the quotation. That contract provides, in part, that Time Payment shall pay Howard's premium on his Southern insurance policy and that, in exchange, Howard shall make installment payments to Time Payment. The evidence is undisputed that Howard sent Time Payment a check in the amount of $220.49, representing the down payment and the first installment on the financed premium. The evidence is also undisputed that at no time did Howard cancel his Southern policy. A dispute arose concerning Howard's payment of premiums. Later, Howard was involved in an automobile accident and, as a result, submitted a claim under the Southern policy. A dispute then arose about coverage under the Southern policy. In May 1999, Howard sued, among others, Southern, Consolidated, and Time Payment.[3] Howard alleges that Consolidated is the "managing general agent" of Southern and that he "entered into a contract for insurance with Southern by and through its agent[] ... Consolidated." Howard also alleges that Time Payment "at all times material hereto was acting in concert with ... Southern and Consolidated." Howard similarly alleges that Southern acted through its agent Consolidated. In his complaint, Howard claims that Southern and its alleged agents Time Payment and Consolidated fraudulently, wantonly, recklessly, and negligently "misappropriated his premium payments thereby causing [his] insurance coverage to be wrongfully canceled" and defamed his character by wrongfully canceling his insurance coverage. Southern, Consolidated, and Time Payment responded with a motion to compel arbitration of Howard's claims, based on the arbitration provision in the Southern insurance policy. The trial court denied the defendants' motion, holding: (1) "[t]he arbitration clause lacks the minimal guarantees needed to fulfill the remedial purposes of Alabama law and therefore it is void on its face"; (2) "[f]rom the plain language of the arbitration clause and the evidence presented by Howard a jury could find that he did not knowingly, willfully, and voluntarily agree to waive his right to a jury and a judicial forum for settling disputes"; (3) "[f]rom the plain language of the arbitration clause and the evidence presented by Howard a jury could find that no contract to arbitrate was formed"; and (4) "it would be unjust, unreasonable, unconscionable, or a contract of adhesion to enforce this arbitration contract against Howard." The defendants appeal from that order. 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 A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358, 360 (Ala.1990); see also Federal Arbitration Act ("FAA"), 9 U.S.C. § 16 (1994) (providing that an appeal may be taken from an order denying a motion to compel arbitration). This Court reviews de novo a trial court's denial of a motion to compel arbitration. See First American Title Ins. Corp. v. Silvernell, 744 So. 2d 883, 886 (Ala. 1999). Section 2 of the FAA, 9 U.S.C. § 2, provides in pertinent part: Section 2 preempts conflicting Alabama law, in particular Ala.Code 1975, § 8-1-41(3), and thereby makes enforceable under *161 federal law a predispute arbitration agreement in a contract evidencing a transaction that involves interstate commerce. See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 273-74, 277, 281, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995); Crown Pontiac, Inc. v. McCarrell, 695 So. 2d 615, 617 (Ala.1997). For the FAA to apply and thus preempt state law, (1) there must be a valid, written arbitration agreement and (2) the contract must relate to a transaction involving interstate commerce. See Prudential Sec., Inc. v. Micro-Fab, Inc., 689 So. 2d 829, 832 (Ala. 1997). The parties do not dispute that Southern's insurance policy relates to a transaction involving interstate commerce, within the meaning of the FAA. Thus, our inquiry is limited to whether there is a valid and enforceable arbitration agreement. The defendants argue that the arbitration provision in the insurance policy is valid and enforceable because, they say: (1) Howard agreed to the arbitration provision by, among other things, paying monthly premiums, renewing the policy, and submitting a claim under the policy; (2) Howard failed to present sufficient evidence showing that the arbitration provision is an unconscionable contract of adhesion; (3) the arbitration provision is not void for indefiniteness or vagueness; and (4) the language of the arbitration provision clearly and unmistakably states that the parties agreed to submit to arbitration issues of arbitrability, namely, validity, enforceability, and scope. Under the doctrine of equitable estoppel, this Court has recognized the right of a defendant who is not a party to a contract containing an arbitration agreement to compel a plaintiff who is a party to the contract to submit his claims to arbitration where (1) the language of the arbitration provision is broad enough to encompass the plaintiff's claims against the nonparty defendant, or (2) the language of the arbitration provision does not preclude the nonparty defendant from seeking to compel arbitration and the plaintiffs claims against the nonparty defendant are either (a) based on duties or obligations founded in and intertwined with the contract, or (b) sufficiently intertwined with those against a party defendant (such as where the plaintiff alleges that the nonparty is the agent of the party or that the nonparty conspired or acted in concert with the party). See Ex parte Stamey, 776 So. 2d 85 (Ala.2000). Both situations are present here. First, the language of the arbitration provision in Southern's insurance policy is sufficiently broad to encompass Howard's claims against Consolidated and Time Payment. The contract provides for arbitration of "[a]ny and all disputes, disputed claims and controversies of any nature whatsoever between any insured and Southern United Fire Insurance Company, its agents (or persons or entities alleged to be its agents)." Second, Howard's claims against Consolidated and Time Payment are based on duties or obligations founded in and intertwined with the insurance policy. Howard's complaint makes no distinction among the wrongs alleged to have been committed by the various defendants. He specifically alleges that, under the insurance policy, Time Payment "had the responsibility and duty to make payments to ... Southern through its agent Consolidated" and that Consolidated and Time Payment misapplied his insurance-premium payment and thereby caused the insurance policy to be wrongfully canceled. Therefore, because Southern is entitled to compel arbitration of Howard's claims against it, as we discuss below, Consolidated and Time Payment are also entitled, under the doctrine of equitable estoppel, to compel arbitration of Howard's claims against them. And, third, because Howard alleges in his complaint that Consolidated and Time Payment are agents of Southern and acted in concert with Southern, the claims against Southern and those *162 against Consolidated and Time Payment are sufficiently intertwined. We disagree with the trial court's statement that a jury could reasonably find that Howard did not assent to the arbitration provision in Southern's insurance policy (the second and third grounds enumerated by the trial court, supra, for denying the defendants' motion to compel arbitration). The evidence in the record is undisputed that Howard paid premiums, renewed his policy, and submitted a claim under the policy. Howard did not cancel the policy or object to the arbitration provision. These facts manifested Howard's acceptance of Southern's offer to insure his car under the terms in its policy, which included the arbitration provision. See American Bankers Ins. Co. of Florida v. Crawford, 757 So. 2d 1125 (Ala.1999);[4]Ex parte Rager, 712 So. 2d 333 (Ala.1998). Howard argues that he did not assent to the arbitration provision in the insurance policy because the arbitration provision was not included in the insurance application and because he did not sign the insurance policy. First, a contractual agreement to arbitrate may be found invalid only "upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. It is not a requirement of Alabama contract law that for a contract provision to be enforceable it must have appeared also in the application to enter into the contract. See Ex parte Foster, 758 So. 2d 516 (Ala.1999). Thus, the arbitration provision need not have appeared in the application for insurance for the parties to be bound by it. Second, "[t]his Court is required to compel arbitration if, under `ordinary state-law principles that govern the formation of contracts,' the contract containing the arbitration clause is enforceable." Quality Truck & Auto Sales, Inc. v. Yassine, 730 So. 2d 1164, 1167 (Ala.1999). Alabama's general contract law permits assent to be evidenced by means other than signature, and, thus, the contract of insurance and the arbitration provision contained in it can be enforceable by the parties in the absence of signatures, where the evidence establishes the existence of the agreement.[5] Southern's insurance policy is not subject to either of Alabama's Statutes of Frauds, see Ala. Code §§ 7-2-201 and 8-9-2, nor is it made contingent upon the condition precedent that it be signed by Howard. Howard accepted and acted upon Southern's insurance policy, which contained the arbitration provision, by paying premiums, renewing the policy, and submitting a claim *163 under the policy. Therefore, because Howard ratified the policy, the absence of his signature does not render the policy, or the arbitration provision contained in it, unenforceable. We disagree with the trial court's conclusion that the arbitration provision in the policy is unenforceable as unconscionable. Howard had the burden of presenting substantial evidence indicating that the arbitration provision in the policy was unconscionable. See Ex parte Napier, 723 So. 2d 49, 53 (Ala.1998). "An unconscionable ... contractual provision is defined as a ... provision `such as no man in his sense and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.'" Layne v. Garner, 612 So. 2d 404, 408 (Ala.1992) (quoting Lloyd v. Service Corp. of Alabama, 453 So. 2d 735, 739 (Ala.1984), and Hume v. United States, 132 U.S. 406, 410, 10 S. Ct. 134, 33 L. Ed. 393 (1889)). In Layne, this Court stated: Id. The only evidence submitted on this issue is that in Howard's affidavit. He states that he does not know what arbitration is and that he would not have agreed to the arbitration provision if he had known what it meant; that he does not recall receiving a copy of the policy; that he was unaware that the policy contained an arbitration provision; that he was not informed that the policy contained an arbitration provision and did not bargain for it; and that if he had to travel to Mobile (where arbitration is to take place under the terms of the arbitration provision), he "would have to take time off without pay." Howard's affidavit does not contain substantial evidence to support a determination of unconscionability. See Ex parte Napier, 723 So. 2d at 52. Howard's affidavit does not indicate that he had no meaningful choice as to whom he would contract with for insurance or that he ever attempted to negotiate any of the terms of Southern's policy, including the arbitration provision. We cannot say that the arbitration provision is oppressive, one-sided, or patently unfair.[6] Therefore, we conclude that the arbitration provision in Southern's policy is not unconscionable. Howard next argues that the arbitration provision is unenforceable because it does not specify the rules governing the arbitration proceeding; does not specify the arbitrators' fees and other costs associated with the arbitration proceeding; does not specify which party is responsible for paying costs, other than the arbitrators' fees; does not specify the substantive law that governs the arbitrators' decision; does not provide for the qualifications of the arbitrators; limits the parties' discovery rights; does not provide for the making of a record of the arbitration proceedings; does not require the arbitrators to make any findings supporting their decision; and does not provide for any review or enforcement of the arbitrators' decision. We conclude that Howard's argument is without merit because all of the issues raised concern matters of "procedural arbitrability" that are for the arbitrator to decide. Dean Witter Reynolds, Inc. v. McDonald, 758 So. 2d 539 (Ala.1999) *164 (holding that matters of procedural arbitrability are for the arbitrator to decide) Additionally, the arbitration provision in clear and unmistakable terms provides that the parties agreed to submit such issues of arbitrability to arbitration. See Ex parte Foster, supra (addressing the same arbitration provision in another Southern insurance policy). The arbitration provision clearly provides that "all questions, disputes and controversies of any nature whatsoever related to the enforceability, validity, scope of [sic] interpretation of this Policy or this arbitration clause" are to be submitted to arbitration. Thus, the issues raised by Howard are for the arbitrator and not for a court to decide. Accordingly, the trial court erred in holding that the arbitration provision is too vague or uncertain to enforce.[7] Finally, Howard argues that Ala. Code 1975, § 27-14-12(3), a part of Alabama's Insurance Code, incorporates Ala. Code 1975, § 8-1-41(3), which prohibits specific enforcement of an arbitration agreement, and thereby "reverse-preempts" the FAA, under the provisions of the McCarran-Ferguson Act, rendering the arbitration provision unenforceable. Section 27-14-12 provides that "[a] policy may contain additional provisions not inconsistent with [the provisions of the Alabama Insurance Code] and which are ... (3)[d]esired by the insurer and neither prohibited by law nor in conflict with any provisions required to be included therein." In American Bankers Ins. Co. of Florida v. Crawford, supra, we held that § 8-1-41(3) does not reverse-preempt the FAA under the provisions of the McCarran-Ferguson Act. Although we did not address the issue whether § 8-1-41(3) is incorporated into Alabama's insurance law by § 27-14-12(3), we did address whether § 8-1-41(3) is incorporated into Alabama's insurance law by § 27-14-22, the mandatory choice-of-law provision of Alabama's Insurance Code. We find that the rationale of Crawford is equally applicable to Howard's incorporation argument. In Crawford, "we conclud[ed] that § 8-1-41(3) was not `enacted for the purpose of regulating the business of insurance'" and that "[v]iewing that Code section through the prism of § 27-14-22 would not alter the essential character of § 8-1-41(3)." Id. at 1136. Similarly, we conclude in this case that viewing § 8-1-41(3) through the prism of § 27-14-12(3) does not transform § 8-1-41(3) into a law of insurance so as to reverse-preempt the FAA under the provisions of the McCarran-Ferguson Act. The arbitration provision in the Southern policy is not inconsistent with the provisions of Alabama's Insurance Code, because § 8-1-41(3) is not a part of that Code. It is not prohibited by federal law, and it is not prohibited by any contrary state law, specifically, § 8-1-41(3), because that state law is preempted by the FAA. Therefore, we reject Howard's final argument. We conclude that Howard agreed to the Southern contract of insurance, which included the arbitration provision, and that the defendants are, therefore, entitled to compel Howard to submit his claims against them to arbitration. Accordingly, we hold that the trial court erred in denying Southern, Consolidated, and Time Payment's motion to compel arbitration. The trial court's order denying the defendants' motion is reversed, and this case is remanded with instructions for the trial court to enter an order compelling arbitration. REVERSED AND REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and MADDOX and BROWN, JJ., concur. *165 LYONS, J., concurs in the result. HOUSTON, COOK, JOHNSTONE, and ENGLAND, JJ., dissent. HOUSTON, Justice (dissenting). I would affirm for the reasons stated in my dissent in American Bankers Ins. Co. of Florida v. Crawford, 757 So. 2d 1125 (Ala.1999). I continue to adhere to the view stated therein that "[b]ecause [Ala. Code 1975,] § 27-14-22, an `insurance-specific' statute, has within it the § 8-1-41(3) prohibition on the specific performance of arbitration agreements, § 27-14-22 itself provides everything required by the McCarran-Ferguson Act to `reverse-preempt' the FAA." 757 So. 2d at 1138. I will adhere to this position until all the Justices elected or appointed to this Court have addressed the issue. ENGLAND, J., concurs. JOHNSTONE, Justice (dissenting). I respectfully dissent. The McCarran-Ferguson Act exempts § 27-14-12(3), Ala. Code 1975, from the preemptive effect of the Federal Arbitration Act, and § 27-14-12(3) applies § 8-1-41(3), Ala.Code 1975, to prohibit the inclusion of specifically enforceable arbitration provisions in insurance policies. [1] The dealership is not a party to this action. [2] The arbitration provision reads in its entirety as follows: "11. ArbitrationAny and all disputes, disputed claims and controversies of any nature whatsoever between any insured and Southern United Fire Insurance Company, its agents (or persons or entities alleged to be its agents), employees, representatives, and/or officers, whether such disputes, demands, claims or controversies are based upon, relate to or arise out of this Policy (or the issuance or events leading up to the issuance of this Policy), any disputed claims submitted under this Policy, or to any event, statement, act, omission or condition which occurred or failed to occur prior to the issuance of this Policy or which occurs or fails to occur contemporaneously with the issuance of this Policy or which occurs or fails to occur at any time after this Policy is issued, will be submitted to binding arbitration. In addition, all questions, disputes and controversies of any nature whatsoever related to the enforceability, validity, scope of [sic] interpretation of this Policy or this arbitration clause shall be resolved by binding arbitration. Arbitration of all matters subject to this agreement shall be before a panel of three arbitrators, one of which shall be chosen by each party with a third being chosen by the two arbitrators selected by the parties. None of the arbitrators shall have a family or employment relationship with either of the parties or either of the other arbitrators. Each party will pay the fee of its own arbitrator and the fee of the third arbitrator will be split equally by the parties. Unless the parties agree otherwise, any arbitration proceeding conducted pursuant to this agreement shall be conducted in Mobile, Alabama. Any arbitration proceeding conducted pursuant to this contract shall be conducted pursuant to the rules and procedures selected by the panel of arbitrators, with the following limitations: "a. In no case shall the arbitrators order or permit any party to obtain from any other party documents, testimony or any other evidence relating in any way to a transaction other than the specific transaction out of which the controversy between the parties which is the subject of the arbitration proceeding arises; "b. The opinion of a majority of the arbitrators in any arbitration proceeding held pursuant to this agreement shall constitute a final and binding decision of the panel; "c. The arbitrators shall not be required to render a written or oral explanation of their decision but shall provide written notice of the panel's decision to the parties by certified mail; and "d. The parties to the arbitration shall be bound by any state or federal statute of limitations which would otherwise be applicable to any claim, demand, dispute or controversy which is the subject of any arbitration proceeding hereunder. "The invalidity or unenforceability of any part, term or portion of this arbitration agreement shall not invalidate or effect [sic] the remainder of this arbitration agreement or this Policy and the valid remainder of each shall remain in full force and effect." (Emphasis in original.) [3] Howard also named Bush Insurance Agency as a defendant. Bush is apparently the insurance agency through which Howard purchased the Southern policy. Bush, however, is not a party to this appeal. [4] Howard argues that Crawford is distinguishable because in that case there was no dispute that the insured received a copy of the insurance policy. Howard argues that a jury could reasonably find that he did not agree to the arbitration provision in Southern's insurance policy and that he did not knowingly, willingly, and voluntarily waive his right to a jury trial because, he states in his affidavit, "[he] [does] not recall seeing or receiving a copy of the Southern ... policy." Based on this evidence, Howard argues that "a jury could find that the only offer either party ever made to the other was an offer of insurance; that no offer to arbitrate disputes was ever made to [him]; and, therefore, that arbitration was not a part of the contract made." First, we do not consider Howard's equivocal statement that he does not recall receiving a copy of the policy to be substantial evidence that he did not receive the policy. Second, this argument is without merit because the undisputed evidence shows that Howard accepted and signed Southern's offer to renew his policy under the same terms and conditions, including the arbitration provision. [5] General Alabama contract law provides: "Unless a contract is required by a statute to be signed (the FAA contains no such requirement), or [is required] by the Statute of Frauds [to be in writing] ... ([Alabama's general Statute of Frauds] requires the signature of the party against whom enforcement is sought), or unless the parties agree that a contract is not binding until it is signed by both of them..., it need not be signed by the party against whom enforcement is sought, provided it is accepted and acted upon." Ex parte Rush, 730 So. 2d 1175, 1178 (Ala. 1999); see also Quality Truck & Auto Sales, Inc., 730 So. 2d at 1168-70. [6] We note that the identical arbitration provision was at issue in Foster and that in that case, as in this case, the insured argued that the arbitration provision was unconscionable. This Court held in Foster that the arbitration provision was not unconscionable. [7] We note that in Foster we addressed the same arbitration provision. In Foster, the insured similarly argued that the arbitration provision was too vague or uncertain to enforce. We held that this issue was within the scope of the arbitration provision, and, thus, was for the arbitrator, and not a court, to decide.

July 21, 2000

5be92cfb-fb18-44a1-80a2-dc2f72f83c9d

Ex Parte Williams

775 So. 2d 146

1990091

Alabama

Alabama Supreme Court

775 So. 2d 146 (2000) Ex parte Andrew M. WILLIAMS. (Re James Sanders et al. v. Andrew M. Williams). 1990091. Supreme Court of Alabama. July 14, 2000. Mark S. Gober of Law Offices of David P. Shepherd, Fairhope, for petitioner. Donald M. Briskman of Briskman & Binion, P.C., Mobile, for respondents. MADDOX, Justice. Andrew M. Williams is the defendant in a pending civil action. He is also under investigation for possible criminal activity arising out of the same transactions as the civil action. He moved for a stay of the civil proceedings for the time while he is under criminal investigation. The trial judge denied Williams's motion to stay the civil action, apparently on the ground that no criminal charges were then pending against him. Williams has petitioned for a writ of mandamus directing the trial court to stay proceedings in the civil action pending the outcome of the criminal investigation. The central question presented by this petition is whether, given the principles of the Fifth Amendment privilege against self-incrimination, the trial court abused its discretion in denying the motion for a stay of proceedings in the civil action. This question is strikingly similar to the one presented in Ex parte Coastal Training Institute, 583 So. 2d 979 (Ala.1991), where this Court held that a party in a civil proceeding may assert his Fifth Amendment privilege against self-incrimination even if no criminal charges are pending against him. We conclude that the principles of law applied in Ex parte Coastal Training Institute are applicable also to the facts of this present case. Therefore, we hold that the trial court abused its discretion in denying the stay. We grant the petition and issue the writ. *147 The civil action against Williams arises out of his sale of promissory notes to 12 individuals. The 12 individuals filed the civil action against Williams on June 22, 1999, stating claims alleging: (1) money had and received by Williams; (2) money due by promissory notes; and (3) common-law fraud. On June 25, 1999, the Alabama Securities Commission issued an order requiring Williams to "cease and desist" offering or selling any security "into, within or from the State of Alabama." In the order, the Securities Commission concluded that Williams had violated various provisions of the Alabama Securities Act, § 8-6-1 et seq., Ala.Code 1975, by selling the promissory notes to the 12 individuals. Williams was also arrested by the Daphne Police Department and charged with first-degree theft of property in relation to these transactions. On July 24, 1999, Williams moved to stay proceedings in the civil action pending the outcome of an ongoing criminal investigation. Following a hearing on September 24, 1999, the trial court denied Williams's motion; Williams filed this mandamus petition on October 12, 1999. The plaintiffs in the civil action, as respondents in regard to Williams's mandamus petition, contend that Williams is not entitled to a stay because, they say, he has "offered no subpoena or document of any kind evidencing an ongoing criminal investigation." The respondents also assert that Williams's Fifth Amendment privilege against self-incrimination is in no danger of being waived or lost if the civil action is allowed to proceed. They argue that "[i]f [Williams's] deposition is scheduled, and he feels a question may infringe upon his Fifth Amendment privilege, he may assert it at that time." Williams counters that argument by saying that this Court, in Ex parte Coastal Training Institute, established a precedent that controls this case. We agree with Williams. In granting the petition, we recognize the principle of lawset out in many of this Court's opinionsthat a writ of mandamus provides extraordinary relief and that one petitioning for a writ of mandamus must show: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. See Ex parte Conference America, Inc., 713 So. 2d 953, 955 (Ala.1998) (citing Ex parte Edgar, 543 So. 2d 682, 684 (Ala. 1989)). In Ex parte Coastal Training Institute, this Court addressed issues substantially similar to the issues presented by Williams's petition. Our holdings in Ex parte Coastal Training Institute control the disposition of this case. In that case, this Court noted that the Fifth Amendment right against self-incrimination applies in civil proceedings. 583 So. 2d at 980. This Court also held: "[T]he pendency of criminal charges is not necessary to the assertion of the privilege. It is a general rule that [one] need not be indicted to properly claim the Fifth Amendment privilege." Id. at 981. This Court has further held that "[i]f a party reasonably apprehends a risk of self-incrimination, he may claim the Fifth Amendment privilege although no criminal charges are pending against him and even if the risk of prosecution is remote." Ex parte Baugh, 530 So. 2d 238, 240, n. 2 (Ala.1988)(citing Wehling v. Columbia Broadcasting Sys., 608 F.2d 1084 (5th Cir. 1979)). In Ex parte Coastal Training Institute, this Court said that, to determine whether a stay should issue, the trial court must weigh the movant's interest in postponing the civil action against the prejudice that may result to the other party because of the delay. See Ex parte White, 551 So. 2d 923, 925 (Ala.1989). It appears to us that most of the facts material to the claim made in the civil action would also be material, and potentially incriminating, in the pending criminal *148 investigation, and we conclude that Williams has shown a reasonable apprehension of a risk of self-incrimination. As this Court stated in Ex parte Coastal Training Institute, granting a stay of the civil action is the only method of guaranteeing the petitioner's Fifth Amendment privilege.[1] We cannot accept the respondents' argument that Williams, when asked specific question during a deposition, can simply assert his Fifth Amendment right to remain silent, because we believe that for us to accept that argument would be "to construe the Fifth Amendment too narrowly." Ex parte Price, 707 So. 2d 1105, 1107 (Ala. 1997). This Court has noted the potential dangers of this narrow interpretation: Coastal Training Inst., 583 So. 2d at 981 (quoting Afro-Lecon, Inc. v. United States, 820 F.2d 1198, 1203 (Fed.Cir.1987)(citing Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 1118 (1951))). Based on our review of the record, and balancing Williams's right against self-incrimination with the prejudice that may result from postponing the respondents' civil action, "we must favor the constitutional privilege against self-incrimination over the interest in avoiding the delay of a civil proceeding." Coastal Training Inst., 583 So. 2d at 981. Accordingly, we hold that the trial court abused its discretion in denying Williams's motion to stay the civil action in this case. We, therefore, grant the petition for the writ of mandamus and issue a writ directing the trial court (1) to vacate its order denying Williams's motion for a stay of proceedings in the civil action and (2) to enter an order consistent with this opinion. We issue the writ without prejudice to the right of the plaintiffs to seek a dissolution of the stay, if circumstances show that the stay should later be dissolved. The writ is issued without prejudice to the plaintiffs' right to discovery, so long as the discovery is limited to the issue of the substantiality of the defendant's apprehension of prosecution. The action we take in this proceeding will sufficiently protect the right of the plaintiffs to proceed in the civil action, without interfering with the defendant's privilege against self-incrimination. PETITION GRANTED; WRIT ISSUED. HOOPER, C.J., and HOUSTON, COOK, SEE, LYONS, BROWN, and ENGLAND, JJ., concur. JOHNSTONE, J., dissents. JOHNSTONE, Justice (dissenting). I respectfully dissent from the issuance of a writ of mandamus directing the Honorable John Lockett, Circuit Judge, to stay the civil proceedings against the petitioner Williams in order to preserve his Fifth Amendment privilege against self-incrimination. Williams made only a scant and *149 conclusionary showing of a threat of criminal prosecution last AugustAugust 1999. The charge brought by the Daphne police has been withdrawn. Nothing before us suggests that any other threat or prospect of criminal prosecution has materialized in the seven months or so since Williams initially sought this stay. Williams has not supplied us a copy of Judge Lockett's order denying the stay, although Williams purports to describe a part of the order. Williams hardly makes a persuasive case that Judge Lockett abused his discretion when Williams does not provide us a copy of Judge Lockett's order. Our better course would be either to deny the petition for the writ or to direct further development of the record on the issue of the present existence or nonexistence of a prospect that Williams will be prosecuted on a criminal charge. [1] Based on the materials presented to us, we are aware that the first-degree-theft-of-property charge against Williams has apparently been withdrawn, but that he is the subject of an ongoing investigation by the Daphne Police Department regarding the transactions forming the basis of the civil action. He is currently being represented by Thomas E. Dasinger with regard to the Daphne Police Department's investigation. Furthermore, the Alabama Securities Commission, in its cease-and-desist order, stated that Williams had violated various provisions of the Alabama Securities Act and that its issuance of the order did not prevent the Commission from seeking such other civil or criminal remedies that are available to it under the Alabama Securities Act.

July 14, 2000