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Notice of Supreme Court of Alabama decisions via e-mail is currently on a hiatus: 
Wallace, Jordan, Ratliff & Brandt, L.L.C., through its Appellate and Insurance Practice Groups, formerly published a free periodic e-mail update that lists the decisions released the previous week by the Supreme Court of Alabama.  This update is currently on hiatus, but may be restarted in the future. 
This page contains opinions released by the Supreme Court of Alabama for March, April, May & June 2004. 

For earlier decisions, click on the corresponding link below. 
 
 

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Opinions Released July 2, 2004

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JULY 2, 2004

 
• Gilmore v. M & B Realty Company, L.L.C.,

No. 1021380 (Ala. July 2, 2004)
(statute of limitations; real estate; fraud; negligence; wantonness; discovery of fraud; reliance;
FACTS AND PROCEEDINGS:  Kevin Gilmore and Therese Gilmore were sold the "wrong" house.  The Department of Veterans Affairs (formerly the Veterans Administration) ("the VA") foreclosed on the mortgage it held on a house and lot now known to be properly identified by the street address 4360 Bayou Road, Theodore, Alabama.  The VA then undertook to sell the property, arranging for Property Realty to act as its "management broker" in the matter.  Hattie Clark handled the assignment for Property Realty.  All of the paperwork the VA sent Clark identified the street address of the house and lot in question as 4369 Bayou Drive, Theodore, Alabama.  The parties agree that there has never been a house on Bayou Drive with the address "4369," and the record offers no explanation as to how the VA misidentified the property.  Following referral of the property to Clark in July 1993, she attempted to locate it using the information supplied by the VA.  On September 10, 1993, she completed and transmitted a VA "Property Inspection Report" referencing the address of the property as 4369 Bayou Road, but explaining in the remarks section that "[t]his house has several house numbers.  I have chosen to use the one furnished by [the] VA.  The Mobile County Courthouse records show the house number to be 4360.  The actual number on the house is 4361.  The house appears to have been vacant for some time."  As it turns out, the house foreclosed on by the VA that Clark was supposed to locate and inspect was indeed 4360 Bayou Drive.  The house the Gilmores were subsequently shown and thought they had purchased, 4361 Bayou Drive, was located across the street from 4360.  Panayiotou, who in 1993 had been licensed as both a real estate agent and a realtor for over seven years, was affiliated with M & B.  Responding to an advertisement, the Gilmores contacted M & B.  They were introduced to Panayiotou, the only M & B representative with whom they dealt.  She gave them directions to the neighborhood where the house was located and then met them there and led them to the house now known to be properly designated as 4361 Bayou Drive.  All of the VA paperwork Panayiotou had with her identified the house as 4369 Bayou Drive, but Kevin called her attention to the fact that on a post outside the property someone had affixed "stick figures" reading "4361."  According to Kevin, when he pointed out to Panayiotou that the house she was calling 4369 had a number on a post indicating that the address was 4361, she just shrugged her shoulders; according to Therese, Panayiotou stated that "she didn't know why it was like that," but that she would check into it.  The Gilmores signed a VA form "Offer to Purchase and Contract of Sale" that listed the property being offered for sale as "4369 Bayou Drive, Theodore, AL 36582."  Among the listed "Conditions of Sale" was the fact that "[t]he Purchaser will pay for any examination or continuation of title as he or she may require...."  It is undisputed that the house Panayiotou led the Gilmores to, accompanied them into, and identified for them in their offer to purchase and contract of sale, was 4361 Bayou Drive, located across the street from 4360, the house the VA actually had for sale, which the VA at all times listed as 4369.  At the November 24, 1993, closing, the Gilmores were given a warranty deed executed by the VA, stating that the VA "granted, bargained, and sold, and by these presents does, grant, bargain, sell, and convey unto" the Gilmores the property known as "Lot 14, Resubdivision of Gulf Park, First Addition, according to Plat therof [sic] recorded in Map Book 11, page 69, Office of Probate Court, Mobile County, Alabama."  The VA expressly covenanted to "warrant and defend the premises" to the Gilmores "against the lawful claims and demands of all persons claiming the same by, through, or under Grantor."  All of the paperwork given to the Gilmores at the closing that bore a street address designated the property as 4369 Bayou Drive, and on a VA form addressed to the Mobile County tax collector and signed by the Gilmores so as to authorize delivery to the VA as their mortgagee "of all tax bills in connection with the above-described property," the property was described both as "Lot 14, Gulf Park S/D 1st A" and "4369 Bayou Dr., Theodore, AL."  Panayiotou never brought the matter up again with the Gilmores until immediately after the closing, when she suggested that they go by the "John Archer Center" in Mobile to see if the street address of the house they had purchased was 4361 or 4369.  Therese testified that, because Panayiotou never mentioned the discrepancy in the street address again, and because all of the paperwork at the closing designated the address as 4369 Bayou Drive, she assumed that Panayiotou had resolved the matter in favor of that address.  The Gilmores moved into the house without first going by the John Archer Center to verify the address.  Within approximately three months, however, they experienced problems receiving their mail using the 4369 address and went to the Center to determine just what was the proper mailing address.  There they met with a clerk who showed them a large map; Kevin pointed to a lot corresponding with the lot they occupied, and the clerk told them that the proper mailing address for that particular lot was 4361 Bayou Drive.  The Gilmores occupied the house and lot at 4361 Bayou Drive uneventfully from November 1993 until April 11, 1999, making various improvements to the premises and making all of their mortgage payments.  On April 11, 1999, Mr. L.K. Crenshaw appeared at their house and told them that he actually owned it.  This claim prompted Therese to travel to a branch office of the Mobile County Revenue Commissioner where personnel assisted her in discovering that the house and lot she and her husband had occupied since 1993 was not lot 14, but rather lot 22 of the resubdivision of Gulf Park, first addition, and that lot 14 was actually the lot across the street, the street address of which was 4360 Bayou Drive.  Confronted with the fact that they did not have legal title to the house they had occupied for five years and five months, the Gilmores vacated it upon Mr. Crenshaw's demand.  The house actually identified by the Gilmores' deed, across the street at 4360, was still occupied by other persons, as it had been when the Gilmores took occupancy of 4361.  The Gilmores eventually evicted those persons, but the house was in such a distressed condition that they could not occupy it.  The Gilmores sued M & B Realty Company, L.L.C., Abigail N. Panayiotou, Property Realty Company, and Hattie Clark, alleging against all defendants negligence and wantonness, and against M & B and Panayiotou fraudulent misrepresentation.  Following pleadings, discovery, and the filing of motions, the trial court entered summary judgments in favor of all defendants on April 18, 2003, without specifying its reasons for entering the summary judgments.  The parties agree in their briefs, however, that the rationale of the trial judge must have been either that applicable statutes of limitation barred all of the Gilmores' claims or, as to the fraudulent-misrepresentation claims, that they were untenable because any reliance by the Gilmores on the alleged misrepresentations was unreasonable as a matter of law.
HOLDING: The Supreme Court affirmed the summary judgments in favor of Hattie Clark and Property Realty.  The Court affirmed that aspect of the summary judgments in favor of M&B and Panayiotou relating to the Gilmores' claims of negligence and wantonness.  The Court reversed the summary judgments in favor of M&B and Panayiotou with respect to the Gilmores' fraud claims.)
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• Massey Automotive, Inc. v. Norris,

No. 1021785 (Ala. July 2, 2004)
(arbitration; fraudulent inducement;
FACTS & PROCEEDINGS: On November 18, 2000, the plaintiff, Johnnie M. Norris, purchased a 2000 Chevrolet Tahoe sport-utility vehicle from the defendant Massey Automotive. Norris signed several documents presented to her by Bob Drinkwater, the finance manager of Massey Automotive, including one entitled "Arbitration Agreement."Norris later discovered that the Tahoe had been damaged before she purchased it; she claims that the damage was not divulged to her when she purchased the Tahoe.  On February 5, 2001, Norris sued Massey Automotive, Drinkwater, several other employees of Massey Automotive, and the operator of the automotive body shop that had repaired the Tahoe, alleging breach of contract, breach of warranty, fraud, and fraud in the inducement.  On April l6, 2001, Massey Automotive moved to compel arbitration.  On May 9, 2001, Norris objected to the motion arguing, among other things, that she had been fraudulently induced by Drinkwater to sign the arbitration agreement.  That claim was supported with an affidavit stating that she was a diabetic, was having a "sugar attack" when talking to Drinkwater, and was relying on him to explain the papers he asked her to sign.  She alleged that he told her that arbitration meant if anything happened to the vehicle she had to bring it back to Massey Automotive to let them take care of it before I took it anywhere else.  The trial court denied the motion to compel arbitration.
HOLDING: The Supreme Court affirmed.  The Court noted that Norris made known to Drinkwater the difficulties she was experiencing and inquired of him as to the contents of the arbitration agreement.  Also according to her, he assumed the duty of explaining to her the meaning of the arbitration agreement, but misrepresented it.  Under these limited and specific facts, the Court held that it cannot say, as a matter of law, that Norris acted unreasonably in choosing not to wait until her alleged "blurred vision had subsided," because it has no facts suggesting how long that condition might have persisted.  Conversely, the Court noted that under the facts, Drinkwater was equally at liberty to suggest that Norris simply wait until her blurry vision subsided and she could read the documents for herself, rather than undertaking to explain to Norris what she could not then read.  The Court held that Norris's reliance on Drinkwater's representations was not unreasonable as a matter of law.)
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• McClellan v. Pennington,

No. 1030548 (Ala. July 2, 2004)
(real estate; statute of frauds; purchase-money resulting trust;
FACTS & PROCEEDINGS: Janell McClellan and Roger W. Pennington were involved in a longtime,  romantic relationship.  Their dispute arose out of both parties' claim that each was the fee simple owner of a villa located at the Stillwater Resort on Lake Martin.  McClellan claims that she located the villa, negotiated the purchase price with the sellers, and purchased the villa in October 1991.  The purchase price of the villa was $47,500.  McClellan admitted that she contributed $30,000 of that amount and  Pennington contributed $17,500. McClellan obtained a line of credit, using her personal residence as collateral to obtain the $30,000 she paid toward the purchase of the villa.  McClellan claimed that the $17,500 Pennington contributed to the purchase price was a gift to her from Pennington.  After the purchase, legal title to the villa was taken in McClellan's name only.  It is undisputed that after the villa was purchased in 1991, Pennington made monthly payments to McClellan.  He claims that he paid McClellan each month the amount due that month on the amount borrowed against her line of credit for the purchase of the villa and that McClellan then paid that amount to the lender.  Pennington claimed that he was in essence making the payments on the villa; McClellan characterized these monthly payments as "rent."  In 1994, Pennington moved into the villa.  He lived in the villa for some time; he later moved out, changed the locks on the doors, and began renting the villa to a third party.  He retained all the rental payments he received from this third party for himself.  Pennington claimed that when the villa was purchased in 1991, he and McClellan orally agreed that when he paid the amount McClellan had borrowed against her line of credit, McClellan would convey her legal interest in the villa to him.  He claimed that it was always intended that the villa would belong to him.  It is undisputed that he made monthly  payments to McClellan in the same amount as each monthly payment due on her line of credit.  Pennington claimed that on April 1, 1997, he paid McClellan $750, which was the balance due on her line of credit; on his check made payable to McClellan for that $750 balance, Pennington wrote "villa, payment in full."  After he made the $750 payment in April  1997, Pennington made no further payments to McClellan related to the villa; McClellan admitted that she did not ask him to make any further payments after that time.  Pennington claimed that he has paid the property taxes on the villa annually since its purchase in 1991.  On May 1, 2000, McClellan sued Pennington, asserting claims of fraud in obtaining a deed, civil conspiracy to defraud, fraudulent conversion of property and rents,  trespass to property, and ejectment.  She requested a jury trial.  Pennington answered the complaint and asserted the following counterclaims: (1) a request that the trial court impose a resulting trust in favor of Pennington as to the villa, thereby divesting McClellan of any interest in the villa; (2) fraudulent representation by McClellan in representing that upon full payment she would convey title to the villa to Pennington; and (3) conversion of funds (arising from events that occurred in 1992 and that were unrelated to the purchase of the villa).  Pennington also claimed that, on May 22, 1997, McClellan executed a deed to the villa, conveying legal title from McClellan individually to both Pennington and herself, jointly with an unrestricted right of survivorship.  On February 15, 2002, Pennington moved for a summary judgment as to his counterclaim seeking the imposition of a resulting trust as to the villa on the basis that he was the beneficial owner.  On September 11, 2002, the trial court entered a partial summary judgment imposing a resulting trust  on the basis that McClellan had received legal title to the villa in her name while Pennington had paid the entire purchase price for the villa.  In August 2003, McClellan filed a motion for a summary judgment as to count III in Pennington's counterclaim, alleging conversion.  She argued that Pennington's  claim was barred by the applicable statute of limitations.  The trial court agreed and granted McClellan's summary-judgment motion on November 25, 2003.  The trial court's November 25, 2003, order also stated that "entry of this Summary Judgment constitutes a final disposition of this case."  McClellan appealed.
HOLDING: The Supreme Court reversed.  The Court noted that McClellan did not request that this Court reverse the order dismissing her claims alleging fraud related to the May 1997 deed, conspiracy, conversion of rents and property, trespass to property, and ejectment, and therefore waived her right to appeal those claims.  The Court held that there are genuine issues of material fact related to whether a resulting trust was created.  As such, the Court held the judgment of the trial court, declaring Pennington to be the legal owner of the villa and divesting McClellan of all title to the villa, was improper.)
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Opinions Released June 25, 2004

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JUNE 25, 2004

 
• Brown v. Denson,

No. 1020430 (Ala. June 25, 2004)
(arbitration; existence of agreement to arbitrate; nonsignatory; 
FACTS & PROCEEDINGS:  On February 17, 2000, Sheila Denson completed an enrollment form for a group disability-insurance policy issued by Unum Life Insurance Company of America.  Curtis Brown sold Denson the disability policy.  He signed Denson's enrollment form next to the words "Signature of Agent."  However, according to a document entitled "Broker Licensing and Selling Agreement" between Brown and Mass Group Marketing, Inc. ("MGM"), Brown was an independent broker and sold the products of various insurance carriers.  Brown specifically acknowledged in that agreement that he had "no contractual relationship with the Carriers [to be specified by MGM] and that [he was] not, and that [he would] refrain from holding [himself] out as an Employee, Representative, Partner, Joint Venture or Associate of the Carriers."  Denson's disability coverage, for which she paid monthly premiums of $59.84, became effective on March 1, 2000.  In her complaint, Denson says that she did not receive a copy of the insurance policy when she purchased the insurance.  Instead, she says, she received a document entitled "Education Salary Protection Plan § 39592-AL2-4C."  Denson alleged in her complaint that before she purchased the Unum disability policy, she told Brown that she suffered from "lupus," a disease "which causes multiple problems," and that she "was under a doctor's care."  She alleged that Brown told her that "it didn't matter if [she] had any health problems, because within a year the policy would pay."  On October 27, 2000, Denson was admitted to the hospital, and she was unable to work for a short time.  She briefly returned to work in November, but thereafter was unable to return to work.  In January 2001, Denson filed a claim with Unum under the disability-insurance policy for long-term disability benefits.  Unum denied Denson's claim on the basis that her disability was caused by, was contributed to by, or resulted from a preexisting condition.  On March 12, 2002, Denson sued Curtis Brown and Brown Solutions, Inc., a corporation of which Brown and his wife Janet are the officers, alleging that Brown's representations to her that Unum would pay her disability benefits regardless of her preexisting medical condition were false.  Brown and Brown Solutions moved to compel arbitration pursuant to an arbitration clause contained in Denson's disability-insurance policy with Unum.  The trial court denied Brown and Brown Solutions' motion to compel arbitration.
HOLDING:  The Supreme Court affirmed.  The Court said it could not agree with the characterization of Brown as Unum's agent because, according to his broker-licensing agreement with MGM, Brown specifically acknowledged that he had no contractual relationship with any of the insurance carriers for which he solicited applications from prospective insureds and that he was not an employee of any of those carriers.  The Court also noted that because under Brown's broker-licensing agreement with MGM he is not Unum's agent.  The Court noted that Denson does not rely upon the terms of the disability-insurance policy containing the provision for arbitration in making her claims against Brown and Brown Solutions.)
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• General Motors Acceptance Corp. v. City of Red Bay,

No. 1021294 (Ala. June 25, 2004)
(class actions; class certification; Alabama Taxpayers' Bill of Rights and Uniform Revenue Procedures Act, Ala. Code §40-2A-1 et seq.  ("the TBOR");
FACTS & PROCEEDINGS:  This is the second class-certification order the trial court has entered in this case.  The Supreme Court vacated the first order and remanded the cause for further proceedings.  General Motors Acceptance Corp. v. City of Red Bay, 825 So.2d 746 (Ala. 2002).  General Motors Acceptance Corporation ("GMAC") engages in financing automobile purchases and leases.  GMAC Leasing Corporation is a wholly owned subsidiary of GMAC that leases General Motors vehicles to GMAC.  The City of Red Bay and Franklin County filed this action against GMAC Leasing Corporation and GMAC Financial Corporation on behalf of themselves and others similarly situated, alleging that the defendants had entered into lease agreements with consumers for the leasing of automobiles and trucks and that the lease agreements were negotiated and signed by automobile dealerships on behalf of the defendants.  The City and the County further alleged that local taxing jurisdictions are authorized by ordinances to levy sales and/or rental taxes, and that the defendants are required by law to collect, in connection with the leases issued by GMAC, local sales or rental taxes and to remit those taxes to the various local taxing jurisdictions, including the City and the County; the City and the County alleged that GMAC has failed to collect such taxes on its leases and to remit those taxes to the local taxing jurisdictions.  After the first class-certification order by the trial court, the Supreme Court concluded that the trial court had not conducted the rigorous analysis required by Ala. Code §6-5-641(e) to determine whether the City and the County had met their burden of proving that the requirements of Rule 23, Ala.R.Civ.P., had been satisfied.  The Supreme Court therefore vacated the class-certification order and remanded the case for the trial court to conduct the required rigorous analysis.  After further proceedings, the trial court again entered a class-certification order certifying the following two classes: (1) a declaratory-judgment claim against all local taxing jurisdictions in the State of Alabama that levy a sales tax on the sale of automobiles and that do not have an auto lease or rental tax; and (2) a claim for money due and owing against all local taxing jurisdictions in the State of Alabama that (a) levy a sales tax on the sale of automobiles, (b) were not paid sales tax in connection with automobiles sold to GMAC under the Smart Lease and Smart Lease Plus programs, and (c) did not have at the time of the transaction an auto lease or rental tax.  On appeal, GMAC argues that the City and the County are subject to the TBOR.  Therefore, it argues, before the City and the County can seek to collect the sales and rental taxes they claim GMAC owes them, they must first comply with the TBOR by providing a written statement to GMAC of its procedural rights, including the right to administrative review of a preliminary assessment; by providing a written description of the basis for their claim to the taxes owed; and by issuing a preliminary and a final assessment.
HOLDING:  The Supreme Court reversed, vacated the class-certification order, and remand the case for the trial court to enter an order of dismissal.  The Court held that the failure of the City and the County to comply with the provisions of the TBOR deprived the trial court of jurisdiction to consider the class action filed by the City and the County.  The Court noted that it is undisputed that the City and the County have not taken any action required by the TBOR.  The Court held that the TBOR applies to local taxing jurisdictions.  The Court held that compliance with the TBOR is jurisdictional.)
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• Mayflower Nat'l Life Ins. Co. v. Thomas,

No. 1021383 & 1021461 (Ala. June 25, 2004)
(class actions; class certification; rigorous analysis;
FACTS  & PROCEEDINGS: The Supreme Court has reviewed class-certification orders from the trial court in this case on two prior occasions: Ex parte Mayflower Nat'l Life Ins. Co., 771 So.2d 459 (Ala. 2000) ("Heard I"), and Bill Heard Chevrolet Co. v. Thomas, 819 So.2d 34 (Ala. 2001) ("Heard II").  This litigation began when James E. Thomas sued Bill Heard Chevrolet Company ("Heard"); one of its employees, Bill Bratton; and a number of fictitiously named defendants, asserting several claims that arose from Thomas's purchase from Heard of a 1985 Cadillac DeVille automobile.  Thomas subsequently added Dorothy L. Dixon as a plaintiff and substituted Mayflower National Life Insurance Company ("Mayflower") for one of the fictitiously named defendants.  The plaintiffs, in the final version of their complaint, alleged 18 counts of wrongdoing by the defendants.  Of those, 14 counts stated claims on behalf of Thomas and Dixon only, but 4 of the counts stated claims on behalf of a putative class.  Thereafter, the plaintiffs moved for class certification of those four claims.  The trial court conducted two hearings at which the plaintiffs' class-certification motion was discussed.  At the first hearing, the plaintiffs offered no evidence in support of class certification; the issue was only briefly addressed.  At the conclusion of that first hearing, the trial court instructed the parties to file briefs in support of their respective positions on the issue of class certification.  The trial court conducted a second, abbreviated hearing on class certification; the only issue relating to certifying a class action that was discussed at that hearing was numerosity.  Counsel for the plaintiffs orally argued for certifying the class but presented no evidence in support of class certification.  Nevertheless, shortly after the second hearing, the trial court granted the motion for class certification.  In Heard I, the Supreme Court held that the trial court's order failed to demonstrate that the trial court had conducted the rigorous analysis required under Rule 23, Ala.R.Civ.P., and failed to explain how the evidence supported the trial court's conclusion that the requirements of Rule 23(a) and (b) had been met.  Following the decision in Heard I, the trial court vacated its order granting class certification and scheduled another hearing.  At that hearing, plaintiffs' counsel submitted a nine-page proposed order granting the motion for class certification.  Mayflower's counsel pointed out that there was no substantive evidence in the record to support the assertions made in the proposed order, and the trial court directed the plaintiffs to file a submission of proof, consisting of transcripts of the previous hearings and copies of depositions.  The plaintiffs never filed the requested submission of proof; nevertheless, the trial court entered an order certifying the class.  In Heard II, the Supreme Court directed the trial court to vacate its order granting class certification because the trial court failed to meet the rigorous-analysis requirements of §6-5-641, because the order "was entered without the benefit of a formal evidentiary hearing and without allowing the defendants an adequate opportunity to contest the proposed class-certification order," and because the order failed to identify the elements of the four claims being certified for class treatment and failed to discuss how the criteria set forth in Rule 23 are met with respect to those claims.  Following the decision in Heard II, the trial court scheduled a formal evidentiary hearing at which the plaintiffs' motion for class certification would again be considered.  Before the hearing, all the parties filed briefs and evidentiary material in support of their positions.  Nearly six months after the hearing, the trial court directed both parties to submit proposed orders to the court and to one another.  The trial court then gave the parties the opportunity to file responses to the proposed orders, which the plaintiffs and Mayflower did.  On May 14, 2003, the trial court entered an order granting class certification; the order was the 38-page proposed order that had been submitted by the plaintiffs.
HOLDING:  The Supreme Court reversed the class-certification order yet again.  The Court held that an examination of the class-certification order reveals "indicia of a lack of rigorous analysis."  The Court held that the trial court's order goes far beyond a Rule 23 analysis and evaluates the merits of several of the plaintiffs' claims and fails to properly consider the defenses of the defendants.  The Court remanded the case for the trial court to conduct its own rigorous analysis of the evidence.)
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• Ex parte C.L.C.,

No. 1021541 (Ala. June 25, 2004)
(adoption; paternity; Putative Father Registry; juvenile-court subject-matter jurisdiction;
FACTS & PROCEEDINGS:  On March 19, 2001, C.L.C., a high school student, hereinafter sometimes "the father," petitioned the Colbert County Circuit Court to adjudicate his paternity of a child and to declare his child legitimate.  On March 21, 2001, in the St. Clair County Probate Court, D.W.R. and M.J.T.R., the prospective adoptive parents, petitioned to adopt the same child the father had petitioned to legitimize.  The prospective adoptive parents filed documents showing that the birth mother had consented to their adoption of her newborn son.  They alleged that the consent of the father, C.L.C., was not required or was implied by law.  In April 2001, the father was served with a summons and the complaint filed by the prospective adoptive parents in the probate court.  Contesting the adoption, the father answered and moved to dismiss the adoption petition.   On June 21, 2001, the father moved to stay the adoption action pending an adjudication in his paternity action.  In September 2001, the prospective adoptive parents moved to remove their adoption action to the St. Clair County Juvenile Court.  On December 10, 2001, the St. Clair County Probate Court transferred the petition for adoption to the juvenile court "for the purpose of terminating parental rights" of C.L.C. and with instructions "that this cause be remanded to the Probate Court for final disposition."  In the juvenile court, the prospective adoptive parents moved for a summary judgment on their adoption petition itself on the ground that the father had irrevocably impliedly consented to the adoption of his child by failing to register timely with the Putative Father Registry, see Ala. Code §26-10C-1.  The prospective adoptive parents again moved for summary judgment on their adoption petition itself on the same ground.  On March 19, 2002, the juvenile court entered an order granting the prospective adoptive parents' summary judgment motion and entering summary judgment granting the adoption petition itself.  On May 29, 2002, the father moved to alter, to amend, or to vacate the judgment, or, in the alternative, for relief from the judgment, pursuant to Rule 60(b)(4), Ala.R.Civ.P., on the ground that the judgment was void because the juvenile court lacked jurisdiction to grant the adoption since the probate court had transferred the case  to the juvenile court for the limited purpose of terminating parental rights under Ala. Code §26-10A-3.  The father also claimed that the judgment of the juvenile court was contrary to "the statute."  On June 4, 2002, the juvenile court denied the postjudgment motion. The Court of Civil Appeals affirmed the judgment of the juvenile court without opinion.
HOLDING:  The Supreme Court reversed.  The Court held that a Rule 60(b)(4) motion that attack a putative judgment on the ground that it is void, may be filed at any time after entry of the putative judgment.  The Court held that the primary jurisdiction over adoption proceedings is in the probate court and that unless a juvenile court acquires jurisdiction over a petition to adopt by the  "transfer" mechanism found in Ala. Code §12-12-35, the juvenile court is without authority to grant an adoption.  The Court held that in this case the probate court kept exclusive jurisdiction over the issue of whether or not to grant or deny the petition to adopt and that it sent the case to the juvenile court for the strictly limited purpose of addressing the issue of termination of parental rights.  As such, the Court held that the juvenile court acquired only that limited jurisdiction over this particular case and that, in purporting to grant the petition to adopt, the juvenile court exceeded its jurisdiction and entered only a void judgment.)
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• American Home Assurance Co. v. Gaylor,

No. 1021565 (Ala. June 25, 2004)
(probate; notice to creditors; reasonably ascertainable creditor;
FACTS & PROCEEDINGS:  On July 7, 2000, Charles Hillman was driving his sport-utility vehicle when he collided with the rear of an 18-wheel tractor-trailer truck driven by Thomas J. Wetherell and owned by J.B. Hunt Transport, Inc.  Charles, his wife, Vicki, and their daughter, Katie, died as a result of the accident.  On July 14, 2000, Gaylor, Charles's mother-in-law, was appointed personal representative of Charles's estate, and the court opened the estate for probate.  On July 14, 2000, Gaylor, Charles's mother-in-law, was appointed personal representative of Charles's estate, and the court opened the estate for probate.  Notice of Gaylor's appointment was published in the Mobile Press Register on July 27, 2000, August 3, 2000, and August 10, 2000.  As a result of the accident, the tractor-trailer truck driven by Wetherell sustained approximately $14,000 of damage.  J.B. Hunt filed a claim with Alfa Mutual Insurance Company, Hillman's automobile insurance carrier, and Alfa settled that claim.  Although the accident report indicated that Wetherell had not been injured in the accident, he filed for and received workers' compensation benefits through his employer, J.B. Hunt.  American Home Assurance Company ("American Home") was J.B. Hunt's workers' compensation carrier.  On July 3, 2002, American Home sued Gaylor, as personal representative of Charles's estate, seeking reimbursement of sums paid for Wetherell's workers' compensation benefits.  Gaylor argued that the claim was time-barred by Ala. Code §43-2-350, because it had not been filed within six months after Gaylor was granted letters testamentary.  American Home argued that under Ala. Code §43-2-61, Gaylor had a duty to provide it with actual notice of the probate proceedings because, it says, it is a "reasonably ascertainable creditor."  Gaylor moved for a summary judgment, which the trial court granted.
HOLDING:  The Supreme Court reversed.  The Court held that the fact that the accident caused the deaths of three persons and approximately $14,000 in damage to the tractor-trailer truck driven by Wetherell and the fact that the administratrix was aware of the accident created a duty requiring Gaylor to inquire into the possibility of a claim against Charles's estate by Wetherell.  The Court noted that the accident report listed Wetherell's name, address, and telephone number and held that Gaylor had a reasonable means of ascertaining the existence of a claim.)
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• Kupfer v. SCI-Alabama Funeral Servs., Inc.,

No. 1022002 (Ala. June 25, 2004)
(arbitration; Rule 60(b)(5); failure to appeal initial arbitration denial;
FACTS & PROCEEDINGS:  On October 20, 2001, Patricia M. Kupfer's son, Jeremy Youngman, died.  On October 21, 2001, Kupfer contacted SCI-Alabama Funeral Services, Inc., d/b/a Ridout's Brown-Service Trussville Chapel ("SCI"), to arrange for the transportation and embalming of her son's body, and for visitation and burial of her son.  Kupfer signed a purchase agreement with SCI pursuant which SCI was to provide all of the funeral arrangements for her son.  The purchase agreement contained an arbitration provision.  On October 15, 2002, Kupfer sued SCI, alleging negligence, negligent entrustment, negligent hiring and supervision, the tort of outrage, and breach of contract in connection with SCI's handling of the transportation, embalming, visitation, and burial of her son.  Kupfer argues that SCI was to retrieve her son's body from the coroner's office on October 21, 2001.  However, SCI did not pick her son's body up until October 22, 2001, and Kupfer argues that as a result of the delay the body was too decomposed to allow the open casket and visitation Kupfer says she had requested as part of the funeral arrangements.  In addition, Kupfer alleges that early on the day of the funeral, she went to the funeral home to view her son's body;  the body was in a "severely misshapen" state and it appeared that SCI had failed to take any action to prepare the body for burial.  SCI moved to dismiss Kupfer's action or, in the alternative, to compel arbitration.  On April 2, 2003, the trial court denied SCI's motion to compel arbitration, concluding that because SCI failed to demonstrate that its transaction with Kupfer "substantially affected" interstate commerce, SCI had failed to meet its burden of proof.  On April 9, 2003, SCI moved the trial court to reconsider its April 2, 2003, order.  The trial court denied that motion on April 15, 2003, and SCI did not appeal the trial court's denial of its motion to reconsider.  On July 1, 2003, SCI again moved the trial court, apparently pursuant to Rule 60(b)(5), Ala.R.Civ.P., to reconsider its April 2, 2003, order in light of the June 2, 2003, decision of the Supreme Court of the United States in Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003).  On July 18, 2003, the trial court granted SCI's motion to reconsider and ordered Kupfer to arbitrate her claims against SCI.  On August 22, 2003, Kupfer appealed the trial court's order granting SCI's Rule 60(b)(5), Ala.R.Civ.P., motion to reconsider and compelling arbitration.
HOLDING:  The Supreme Court reversed.  The Court noted that the trial court's reasoning in its April 15, 2003, order that the Federal Arbitration Act does not apply to this case because the transaction did not substantially affect interstate commerce was erroneous.  The Court held, however, that if  SCI had appealed the trial court's April 2, 2003, order, SCI would have been able to argue, once the United States Supreme Court released Alafabco, that Alafabco had changed the law and that the trial court had erroneously determined that the transaction in issue did not fall within the scope of Congress's Commerce Clause power.  The Court held that because SCI did not appeal, SCI cannot now argue that it is entitled to compel arbitration.  The Court held that because SCI failed to appeal the trial court's April 2, 2003, order denying its motion to compel arbitration, the trial court exceeded its discretion in entering its July 18, 2003, order granting SCI's Rule 60(b)(5) motion and ordering Kupfer to arbitrate her claims against SCI.)
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• Ex parte Alabama Dep't of Mental Health & Mental Retardation,

Nos. 1022193 & 1030021 (Ala. June 25, 2004)
(venue;
FACTS & PROCEEDINGS:  Defendants Alabama Department of Mental Health and Mental Retardation, Kathy Sawyer, Anne Evans, G. Allen Fortson, Ross Hart, Ronald Reed, and Judith Johnston, and defendants East Alabama Mental Health-Mental Retardation Board, Inc., Paul Walker, and Charlene McDaniel moved the Montgomery County Circuit Court to transfer the action filed by plaintiff Tommie Swindle as guardian for Tonetia Lewis from the Montgomery County Circuit Court to the Lee County Circuit Court. The trial court denied the motions to transfer, and both sets of defendants petitioned the Supreme Court for writs of mandamus directing the trial judge to vacate her order denying the motions to transfer and to enter an order granting the motions to transfer.
HOLDING:  The Supreme Court granted the writs.  The Court held that this case is not materially distinguishable from Ex parte Sawyer, No. 1020888 (Ala. May 7, 2004), and Ex parte Sawyer, No. 1021194 (Ala. May 7, 2004).
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• Regions Bank v. Plott,

No. 1030436 (Ala. June 25, 2004)
(invasion of privacy; false light;
FACTS & PROCEEDINGS:  The underlying dispute arises out of the theft of 200 successively numbered checks bearing Amelia Kay Plott and James Edward Plott's names and the number of their joint checking account at Regions Bank's branch bank in Bessemer.  The Plotts first learned of the theft on November 5, 1998, after three unidentified individuals attempted unsuccessfully to forge Mrs. Plott's name on one of the checks at a Wal-Mart discount department store in Gardendale.  That same day, the Plotts reported the theft to the Jefferson County Sheriff's Department, and Mrs. Plott visited Regions.  At Regions, she reported the theft to a customer-service representative, who placed a "no-debit hold" on the account to prevent the payment of any forged instrument.  On November 16, 1998, after all checks written by the Plotts on the frozen account had been presented for payment, Regions closed that account.  Meanwhile, the thieves were writing checks in various Southeastern states, including Mississippi, Alabama, Georgia, and North Carolina, and forging the Plotts' names.   In a few instances, the thieves altered the account number on a check.  In all, at least 130 forged checks were presented for payment on the frozen account.  Those checks were returned to the presenting banks, and, in turn, to the merchants that had accepted them, stamped (1) "refer to maker," (2) "account closed," or (3) "account not found."  Additionally, two checks were returned stamped "insufficient funds."  When each check was returned, its holder contacted the Plotts by telephone, by mail, or by both, seeking payment.  When the Plotts would explain that the check was forged, many of the merchants requested an affidavit of forgery.  After they had procured the affidavit, the Plotts sent an affidavit and a copy of the sheriff's report of the theft in response to every payment request.  However, the affidavit often failed to satisfy the holder or to end the demand for payment.  The Plotts continued to receive demands by telephone and mail from merchants and collection agencies, threatening legal action and criminal prosecution.  Although the Plotts were never arrested in connection with the forged checks, warrants were issued for the arrest of Mrs. Plott in Baldwin County, Limestone County, and Madison County.  Additionally, many of the merchants referred the matter to credit bureaus and credit-reporting agencies.  As a result, the Plotts' credit rating was adversely affected.  The Plotts sued Regions and others.  The complaint contained a count alleging "invasion of privacy," averring that the defendants "invaded the [Plotts'] privacy by placing [them] in a false, but not necessarily defamatory, position in the public eye" (hereinafter "false light").  The complaint sought compensation for (1) emotional distress, (2) damage to "credit and financial standing," and (3) lost time and inconvenience from the interruption of their ordinary business affairs, which included the necessity of "attempt[ing] to clear their credit record, [responding] to arrest warrants, [changing] their bank accounts, [and dealing] with credit agencies, attorneys and merchants."  The case was tried before a jury on claims against Regions alleging an invasion of the right of privacy.  At the close of the Plotts' case-in-chief, Regions moved for a judgment as a matter of law ("JML").  Regions renewed this motion at the close of all the evidence.  The trial court denied Regions' motion for a JML.  During the jury charge that followed, the trial court told the jury that the Plotts were claiming damages "for the violation of his and her right of privacy by intrusion upon [their] physical solitude or seclusion" (hereinafter "intrusion on seclusion") and for putting them "in a false but not necessarily defamatory position in the public eye."  The trial court then charged the jury on the substantive elements of the false-light claim, but did not charge the jury on the claim of intrusion on seclusion.  There was no objection to the charge.  The jury returned a general verdict in favor of Mrs. Plott for $70,000 in compensatory damages and in favor of Mr. Plott for $15,000 in compensatory damages.  The trial court entered a judgment on that verdict.  On appeal, Regions contends that the trial court erred in denying its motion for a JML.
HOLDING:  The Supreme Court reversed.  The Court held that Regions did not give publicity to any false information regarding the Plotts.  The Court held that the stamp "Refer to maker" on the face of an instrument does not purport to assert any fact or contain any information.  The Court held that the stamp "account not found" on the returned forged checks was a true statement because Regions used that stamp only on those of the Plotts' checks on which the account number had been altered by the thieves.  Similarly, the Court held that the stamp "account closed" was a true statement.  The Court noted that it is undisputed that only two of the forged checks were returned to the presenting bank stamped "insufficient funds" and that those checks were the first two checks returned after the account was frozen on November 5, 1998, and were returned on that date.  The Court held that, even assuming for the sake of argument that this stamp provided false information regarding the Plotts' account to two presenting banks and two merchants, the "giving publicity" element of the false-light claim is not satisfied because "giving publicity" is "making a 'matter ... public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.'"  Therefore, the Court held that the trial court erred in refusing to enter a JML in favor of Regions on the false-light claim.  As to the intrusion-on-seclusion claim, the Court held that because the claim was not presented to the jury or included in the verdict, or in the judgment entered on that verdict, Regions' challenge to the denial of a JML as to that claim is moot.)
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• Ex parte Brooks,

No. 1030462 (Ala. June 25, 2004)
(criminal;  writ of habeas corpus; work release; liberty interest;
FACTS & PROCEEDINGS: In a prison disciplinary proceeding after Willie J. Brooks, an inmate assigned to a work-release program, allegedly threatened another inmate with a knife, Brooks was administratively charged, tried, and adjudged guilty of making threats, creating a security hazard, possessing a weapon, and disobeying  a direct order ("the four disciplinary charges").  On the same day he was adjudged guilty of the four disciplinary charges, Brooks pled guilty to an additional disciplinary charge of conspiracy to commit a violation of institutional rules.  Brooks petitioned the circuit court for a writ of habeas corpus, arguing that the only evidence presented at the hearing on the four disciplinary charges was the hearsay testimony of the arresting officer restating the circumstances of the violations.  The State responded to Brooks's petition by moving to dismiss it on the ground that the punishments imposed on Brooks as a result of his being adjudged guilty of the four disciplinary charges did not implicate a liberty interest.  The circuit court dismissed Brooks's petition on the ground that the punishments imposed on Brooks for his being adjudged guilty of the four disciplinary charges did not implicate a liberty interest.  On appeal to the Court of Criminal Appeals, Brooks asserted that his removal from the work-release program solely on the basis of hearsay deprived him of a liberty interest in violation of his right to due process.  The Court of Criminal Appeals held that the dismissal of Brooks's habeas corpus petition was warranted by his failure to present evidence that his removal from the work-release program resulted from his being adjudged guilty of the four disciplinary charges.
HOLDING:   The Supreme Court reversed.  The Court held that the dismissal of Brooks's petition for a writ of habeas corpus conflicts with the decision in Ex parte Floyd, 457 So.2d 961 (Ala. 1984), which held that an appellate court, in reviewing the dismissal of a habeas corpus petition, must assume the truth of unrefuted factual allegations in the habeas corpus petition.)
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• State Farm Mut. Auto. Ins. Co. v. Brown,

No. 1030709 (Ala. June 25, 2004)
(insurance;  justiciable controversy; declaratory relief; direct action against an insurance company before a judgment has been entered against the insured/alleged tortfeasor;
FACTS & PROCEEDINGS:  Waylon Gant was involved in a motor-vehicle accident with Judy Brown, who sustained severe physical injuries. Gant is insured under an automobile liability policy issued by State Farm Mutual Automobile Insurance Company. The "liability" coverage section of Gant's State Farm policy provides, in part, that State Farm will "pay damages which an insured becomes legally obligated to pay because of ... bodily injury to others ...." The policy defines "bodily injury" as "bodily injury to a person and sickness, disease or death which results from it." The definition of "bodily injury" contains no words like "loss of services" or "loss of consortium" or any language similar to those words. The limits of Gant's liability coverage for bodily injury under the policy is $50,000 for "[e]ach [p]erson" and $100,000 for "[e]ach [a]ccident."  On January 24, 2001, the Browns sued Gant in the Etowah Circuit Court, alleging that he had been negligent and/or wanton and that his negligence and/or wantonness had caused  the November 29, 1999, accident. The complaint alleges that the injuries Judy sustained in the accident exceed $50,000. Judy's husband, Michael, who was not in the car at the time of the accident, claims to have "lost the services, comfort and consortium of his wife Judy Brown" as a result of the accident and claims that that loss exceeds $50,000 in damages. The Browns also asserted a direct claim, titled "Complaint for Declaratory Judgment," against State Farm as Gant's liability insurer seeking a declaration that the policy should be "interpreted so as to provide $50,000 coverage for Judy Brown's claims and an additional $50,000 coverage for Michael Brown's claims."  On February 16, 2001, State Farm filed its answer to the Browns' declaratory-judgment complaint, asserting, among other things, the affirmative defenses that the Browns' claim against State Farm was a prohibited direct action against an adversary's liability insurer, and that the bodily-injury liability limits for "[e]ach [p]erson" under the language of Gant's State Farm policy "were not expanded by a derivative claim asserted by a person not having received any bodily injury [i.e., Michael Brown]."  On March 26, 2001, the Browns filed a motion for partial summary judgment, supported by a certified copy of Gant's State Farm policy.  On September 12, 2003, the trial court, relying on Tate v. Allstate Insurance Co., 692 So.2d 822 (Ala. 1997), and City of Lanett v. Tomlinson, 659 So.2d 68 (Ala. 1995), entered an order, stating: "The Court hereby declares that the total amount of coverage from the State Farm policy which affords coverage to defendant Gant is $50,000 for the claims of the [sic] Judy Brown, and an additional $50,000 for the claims of her husband Michael Brown, for a total of $100,000 in coverage."  On October 9, 2003, State Farm filed a motion to vacate the judgment and to dismiss the claim against it or, in the alternative, to certify the partial summary judgment as final pursuant to Rule 54(b), Ala.R.Civ.P., arguing that the direct- action statute, Ala. Code §27-23-2, and Maness v. Alabama Farm Bureau Mutual Casualty Insurance Co., 416 So.2d 979 (Ala. 1982), precluded the Browns' direct declaratory-judgment claim against State Farm and that Tate and Weekly v. State Farm Mutual Automobile Insurance Co., 537 So.2d 477 (Ala. 1989) served to limit the liability coverage available under Gant's policy to the $50,000 "[e]ach [p]erson" limit, i.e., to $50,000 for "all damages due to bodily injury to one person." On December 15, 2003, the trial court denied State Farm's motion to vacate or dismiss but expressly certified the partial summary judgment as final for purposes of Rule 54(b), Ala.R.Civ.P. State Farm appealed.
HOLDING:  The Supreme Court reversed.  The Court held that the specific direct-action statute acts as an exception to the general declaratory-judgment statute.  The Court held that, by allowing the Browns to go forward with their claim against State Farm, the trial court allowed the Browns to pursue a direct action against an insurance company, something not permitted by Ala. Code §27-23-2.  The Court held that there is no justiciable controversy because the Browns have yet to obtain a judgment against Gant that would obligate State Farm to the Browns in any way.)
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• Ex parte Snyder,

No. 1030871 (Ala. June 25, 2004)
(criminal; The Supreme Court denied the petition for writ of certiorari without opinion, but the Court stated that in denying the petition for the writ of certiorari, it does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' October 31, 2003, opinion on remand.)
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Opinions Released June 18, 2004

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JUNE 18, 2004

 
• Ex parte Serio,

No. 1021443 (Ala. June 18, 2004)
(construction payment and performance bonds; insurance; insolvency; stay; counterclaims; Uniform Insurers Liquidation Act;
FACTS & PROCEEDINGS:  The plaintiffs in the underlying action -- Schillinger Place, L.L.C., Crestview, L.L.C., and the Trotman Company, Inc. -- entered into a contract with Cay-Chel, Inc., for the construction in Mobile, Alabama, of a commercial-development project known as Schillinger Place.  In April 1997, the parties entered into another contract for the construction of a commercial-development project known as Crestview Market Place, in Crestview, Florida.  For each project Cay-Chel executed with Frontier Insurance Company, a corporation domiciled in New York, both a performance bond and a payment bond.  Under the terms of the bonds, Frontier would become responsible for the performance of the construction contracts and for Cay-Chel's debts if Cay-Chel defaulted on its contracts with the plaintiffs.  By December 1997, Cay-Chel was in default on both the Schillinger Place and the Crestview Market Place contracts.  The plaintiffs demanded performance by and payment from Frontier; however, the plaintiffs allege, Frontier refused to perform in accordance with the terms of the bonds.  In November 1998, the plaintiffs sued Cay-Chel and Frontier in the Mobile Circuit Court.  Frontier asserted counterclaims against the plaintiffs, and the parties thereafter engaged in discovery.  During discovery, Frontier became insolvent.  On August 27, 2001, a New York state court appointed Gregory V. Serio, the superintendent of insurance of the State of New York, as Frontier's temporary rehabilitator.  On September 28, the Mobile Circuit Court placed Schillinger Place, L.L.C., et al. v. Cay-Chel, Inc., et al. on its administrative docket pending a final order from the New York court regarding Frontier's status.  On October 15, the New York court issued its permanent "Order of Rehabilitation."  The order enjoined and restrained all persons "from commencing or prosecuting any actions, lawsuits, or proceedings against Frontier, or the Superintendent as Rehabilitator."  Schillinger Place remained on the administrative docket of the Mobile Circuit Court until April 2003, when Frontier moved the court to reinstate Frontier's counterclaims to the court's active docket.  In the same motion, Frontier requested that the court continue to stay the plaintiffs' claims against it in the same case.  In May, the trial court granted in part and denied in part Frontier's motion and reinstated the entire case to its active trial docket.  Frontier then petitioned the Supreme Court for a writ of mandamus directing the trial court (1) to issue an injunction staying all claims against Frontier in Schillinger Place, and (2) to permit Serio, as the rehabilitator of Frontier, to pursue Frontier's counterclaims in the same case. 
HOLDING:  The Supreme Court held that Frontier has established that it has a clear legal right under the Alabama UILA to a stay of all claims against it in Alabama.  Therefore, the Court held that the trial court's decision to return Schillinger Place to its active trial docket was in error.  However, the Court also concluded that Frontier has not shown a clear legal right to require that its counterclaims against the plaintiffs be placed on the active trial docket.  The Court held that although Frontier is entitled to maintain its counterclaims, it has no clear legal right, superior to the trial court's interests in avoiding piecemeal and possibly inconsistent dispositions of intertwined claims, to have those counterclaims moved off of the administrative docket pro tanto.)
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• Wilson v. Athens-Limestone Hospital,

No. 1030013 (Ala. June 18, 2004)
(medical malpractice; wrongful death; duty; judgment as a matter of law;
FACTS & PROCEEDINGS: Stacia Lynn P. Wilson, individually and as mother and next friend of Starsha L. Wilson, a minor, deceased, brought a medical-malpractice wrongful-death action against Athens-Limestone Hospital ("the hospital") and Dr. Bibi L. Teng, who was at the time a pediatrician employed by the hospital, alleging that Dr. Teng wrongfully caused the death of her four-year-old daughter, Starsha Wilson, by not providing proper care while Starsha was a patient in the emergency room of the hospital and by allowing her to be discharged when she still needed medical care.  Starsha was diagnosed with sickle-cell anemia when she was approximately 14 months old.  Dr. Teng first treated Starsha several months after she was diagnosed and some time thereafter she became Starsha's regular pediatrician.  Dr. Teng had instructed Wilson to take Starsha to the emergency room of the hospital and to telephone Dr. Teng whenever Starsha had a fever of 101 degrees or higher.  On the morning of May 19, 1994, after checking Starsha's temperature and finding that it was 105 degrees, Wilson rushed Starsha to the emergency room, arriving at the emergency room around 6:15 a.m.  Upon their arrival, the emergency-room nurses checked Starsha's vital signs, and Dr. Patrick Tucker, an emergency-room doctor at the hospital, performed an initial assessment.  Dr. Tucker ordered medication for pain and fever, an IV, blood work, a renal profile, a urinalysis, oxygen, and a chest X-ray.  At 7:00 a.m. Dr. Tucker went off duty, and Dr. Diana Osborn took over in the emergency room.  After discussing Starsha's case with Dr. Tucker, Dr. Osborn began providing care to Starsha.  Shortly after 7:00 a.m., Wilson telephoned Dr. Teng's answering service and requested that Dr. Teng come by the hospital to see Starsha before she went to work that morning.  Dr. Teng testified that she did not receive a message from her answering service concerning Starsha on that morning.  However, Dr. Teng did visit the hospital that morning.  Dr. Teng testified that as she was leaving the hospital, she was informed that Starsha was in the emergency room, and she decided to stop by the emergency room on the way out of the hospital.  When Dr. Teng arrived at the emergency room, she briefly talked to both Wilson and Starsha.  Wilson informed Dr. Teng that Starsha had had a high fever and that she had not urinated despite having drunk several glasses of water.  Dr. Teng then told Wilson that she would talk to Dr. Osborn and get back with Wilson before she left the hospital.  After briefly discussing Starsha's case with Dr. Osborn, Dr. Teng returned to speak with Wilson; she told her that "everything looked good" and that Dr. Osborn would take good care of Starsha.  Dr. Teng also told Wilson that Starsha had a mild infection but that she would probably be released from the hospital.  Dr. Teng testified that she spent approximately 5 to 10 minutes talking to Wilson in the emergency room.  Dr. Teng did not take any steps to generate a bill for the time she spent in the emergency room that morning.  Dr. Osborn discharged Starsha from the hospital at 10:50 a.m. that same day.  At 12:40 p.m., Starsha returned to the emergency room in an ambulance; she was in full cardiac arrest.  Upon being  informed of Starsha's condition, Dr. Teng returned to the emergency room.  Dr. Teng and Dr. Osborn attempted to resuscitate Starsha, but they were unsuccessful,  and Starsha died.  The cause of death was a pneumococcal blood infection, a complication of sickle-cell anemia.   Dr. Teng testified that on Starsha's first visit to the emergency room on the day she died Dr. Teng did not have a physician-patient relationship with Starsha.  Dr. Teng further testified that it would have been improper for her to take over Starsha's care from Dr. Osborn because Starsha was an emergency-room patient and Dr. Osborn was the emergency-room physician when Starsha was admitted.  Dr. Osborn testified that she was Starsha's doctor on that morning and that all decisions concerning Starsha's care, including the decision to discharge Starsha, were made either by her or by Dr. Tucker.  The trial court entered a summary judgment on all of Wilson's claims, except her claim against the hospital for vicarious liability based on Dr. Teng's alleged acts or omissions.  The Supreme Court affirmed that summary judgment without opinion in Wilson v. Athens-Limestone Hospital, No. 1020262 (Ala., May 16, 2003) (table).  At trial, several pediatricians testified regarding Dr. Teng's duty to Starsha during Starsha's first visit to the emergency room on the day she died.  At trial, at the close of Wilson's case, the hospital moved for a judgment as a matter of law ("JML").  The trial court granted the motion and entered a JML for the hospital.
HOLDING:  The Supreme Court affirmed.  The Court concluded that the undisputed facts show that Dr. Teng did not treat or diagnose Starsha during Starsha's first visit to the emergency room on the day Starsha died and did not prescribe any medication or give any medical advice on that first visit.  The Court noted that the emergency-room doctors, Dr. Osborn and Dr. Tucker, retained control over Starsha's course of treatment at all times during that first visit and that there is no evidence showing that their medical treatment of Starsha was such that Dr. Teng had a duty to override their independent medical judgment.  The Court held that as a matter of law Dr. Teng did not have a duty to intervene in Starsha's treatment by Dr. Osborn.)
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• Ex parte Ederer,

No. 1030110 (Ala. June 18, 2004)
(domestic relations; alimony; standard of review; sufficient evidence to support trial court's judgment;
FACTS & PROCEEDINGS:  Donell B. Ederer and Michael P. Ederer were divorced in September 1997.  The trial court ordered Michael, an anesthesiologist, to pay child support for the couple's three minor children, $800 per month in alimony, one-half of the mortgage payment on the marital residence, which was owned jointly by Michael and Donell, and the taxes and insurance on the residence.  In 1998, Michael's income had decreased and he sought and received a reduction of $200 in his monthly alimony payments.  In 2001, he petitioned the trial court to reduce his child-support obligation, to terminate or reduce his alimony obligation, and to order the sale of the marital residence.  Donell, a kindergarten teacher who works part-time as a salesclerk in a retail store, answered and counter-petitioned, asking the trial court to increase Michael's  alimony payment.  At the time of the trial on Michael's petition, Donell was living in the marital residence with the couple's minor son, one of their two daughters, and one grandchild.   The evidence indicated that Michael's monthly income had increased by approximately $7,500 since the trial court lowered his alimony payments in 1998; at the time of the trial, his monthly income was approximately $18,000.  Donell's monthly income had increased by approximately $1,000; she reported her gross monthly income, including her teaching job, alimony payments, and her part-time sales job, as $4,648.  Donell reported average monthly expenses of $4,650.  Michael testified that he paid $800 per month for their minor son to attend private school, that he had bought the three children cars and paid the insurance and maintenance expenses for the cars, that he paid for the younger daughter's college expenses that were not covered by the prepaid college-tuition plan, that he paid for books for the older daughter, who had returned to college, and that he gave the older daughter $200 per month and the younger daughter $400 per month.  Because of Donell's financial situation, she states, she is often late in making the mortgage payments on the marital residence.  Further, both parties acknowledge that significant repairs to the marital home are necessary, including repairs to the roof and the replacement of the furnace.  Donell testified that she cannot afford to have those repairs made.  The trial court denied both Michael's petition seeking a decrease in alimony and child-support payments and Donell's petition seeking an increase in alimony payments.  Donell appealed, and the Court of Civil Appeals held that the evidence indicated that she is unable to meet her financial obligations and that in denying her petition the trial court exceeded its discretion.  The Court of Civil Appeals reversed the trial court's order denying her petition and remanded the cause to the trial court.
HOLDING:  The Supreme Court remanded the case to the Court of Civil Appeals.  The Court noted that it does not appear that the Court of Civil Appeals determined whether there was sufficient evidence to support the trial court's judgment denying Donell's motion for increased alimony.  The Court directed the Court of Civil Appeals to clarify its opinion as to whether it determined that the evidence was sufficient to support the trial court's judgment.)
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• Ex parte State of Alabama (In re: State v. Nelson),

No. 1030180 (Ala. June 18, 2004)
(criminal; The Supreme Court quashed the petition for writ of certiorari without opinion, but the Court stated that, in quashing the petition, the Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion.)
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• Childersburg Bancorporation, Inc. v. Alabama Dep't of Envtl. Mgt.,

No. 1030409 (Ala. June 18, 2004)
(interpleader; summary judgment; environmental;
FACTS & PROCEEDINGS:  In 1985, the First National Bank of Childersburg ("FNBC") issued an irrevocable letter of credit on behalf of Alabama Plating, Inc. ("Alabama Plating"), and in favor of the Alabama Department of Environmental Management ("ADEM").  The letter of credit was intended to provide financial assurance in the event an environmental cleanup at Alabama Plating's facilities ever became necessary.  Childersburg Bancorporation, Inc. ("CBI") owned FNBC at the time the letter of credit was issued and at all relevant times  until 1999, when it sold FNBC.  Alabama Plating was to provide additional financial assurance that it could handle any environmental cleanup that became necessary.  However, problems arose getting Alabama Plating to provide that assurance, and ADEM ultimately required that a trust agreement be executed; Alabama Plating was the grantor, FNBC the trustee, and ADEM the beneficiary of the trust created by the agreement.  The trust was funded by the entire amount pledged in the letter of credit.  Following an environmental cleanup of Alabama Plating's facilities, ADEM attempted several times to access the funds held in the trust to cover a portion of the cleanup costs.  However, FNBC maintained that it had neither a valid letter of credit nor a  trust agreement with Alabama Plating.  In 1999, CBI sold FNBC to Marion Lowery and Peoples State Bank of Commerce ("Peoples").  After FNBC was sold, disputes arose between CBI and FNBC, prompting CBI to file a declaratory-judgment action against FNBC and Lowery.  The parties  successfully negotiated the dispute and entered into a settlement agreement and release (the "settlement agreement").  The settlement agreement specifically addressed the 1985 letter of credit used to fund the trust created by the trust agreement.  The settlement agreement set up an escrow account that was to terminate on August 6, 2003.  On June 20, 2003, Peoples filed a complaint for  interpleader, naming CBI and ADEM as parties, and deposited with the court $40,000, the amount placed in an escrow account established pursuant to the settlement agreement. The complaint stated that ADEM had demanded payment pursuant to the letter of credit, which preceded the trust agreement, and that Peoples intended to comply with ADEM's demand.  CBI answered the complaint and asserted a counterclaim against Peoples alleging a breach of the settlement agreement.  Thereafter, Peoples moved to be dismissed from the action, but the trial court denied its motion.  ADEM then moved for a summary judgment, claiming ownership of the interpleaded funds.  In response, CBI moved for a summary judgment, also claiming ownership of the interpleaded funds.  The trial court granted ADEM's motion and entered a summary judgment in its favor.  CBI's counterclaim against Peoples is still pending.  The summary judgment in favor of ADEM was made final pursuant to Rule 54(b), Ala.R.Civ.P.  CBI appealed.
HOLDING:  The Supreme Court affirmed.  The Court held that CBI's argument that it is entitled to the interpleaded funds under the settlement agreement, while potentially viable against Peoples, is without merit when applied to ADEM.  The Court found that ADEM submitted sufficient evidence indicating that it was entitled to payment under first the letter of credit and then the trust agreement and that CBI does not dispute that fact.  Therefore, the Court held that CBI failed to meet its burden to present substantial evidence of the existence of a genuine issue of material fact, and the trial court properly granted ADEM's motion for a summary judgment.)
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Opinions Released June 11, 2004

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JUNE 11, 2004

 
• Birmingham News Co. v. Horn,

Nos. 1020552 et al. (Ala. June 11, 2004)
(arbitration; appeal; timeliness of appeal; duplicative damages; This opinion addresses the appeals by The Birmingham News Company ("the News") of approximately $20 million in awards made by arbitrators to Sherry Horn, Hugh Stewart, Kameron Hyde, Jesse Glass, James McLendon, and Teresa McLendon ("the plaintiffs").  The plaintiffs are individuals who at one time had "dealer agreements" (hereinafter the "agreement") with the News to sell and distribute its newspapers to the public.  The arbitration awards were based upon the plaintiffs' claims that the News wrongfully and illegally terminated those agreements.  Each agreement contained in paragraph 10 the following language concerning arbitration:  "It is agreed, however, that if either party shall terminate this contract by reason of the alleged breach thereof by the other party, the sole issues for determination shall be whether or not the termination was valid, whether or not either party shall be entitled to money damages, and, if so, the amount thereof, which issues only shall be submitted to arbitration.  It is expressly agreed that in case of such termination neither party shall be entitled to have this Agreement reinstated nor to be restored to his or its status thereunder, notwithstanding the fact that it may be determined that the termination by the other party was not warranted.  In any event, [the plaintiff] shall not claim any additional compensation for good will, but acknowledges that his entire compensation under this agreement is the difference between the wholesale and resale price of newspapers purchased and sold by him.... The award shall be effective and binding upon the parties if executed by two of the arbitrators."  The panel issued its 49-page decision on December 30, 2002.  The panel determined that in 1959, the News instituted a "franchise" system pursuant to which its newspapers were sold to the public through a network of over 200 independent contractors, most of whom were known as "dealers."  The dealers bought the newspapers from the News at a certain price and sold them to home subscribers or through vending machines or other retail outlets for a higher price, retaining the difference, which reimbursed them for their expenses and provided a profit.  With the exception of the specifics of the dealership territory, the agreements were standardized.  Although the agreements were renewed annually, for the most part those renewals were automatic, and new agreements were executed only when a new provision, such as the arbitration provision, was added to the agreement.  When it wanted to add a new provision to an agreement, it was the practice of the News to inform the dealer of the change and to give the dealer the choice between accepting the change or having the dealership terminated.  The panel also noted that a manager with the News, Jim Craig, who had handled hundreds of agreements, including those of the plaintiffs, testified that he regularly represented to dealers that the dealer's franchise would be renewed automatically so long as the dealer performed satisfactorily.  The panel also determined that the News evaluated a dealer's performance based upon an assessment of the dealer's performance in three areas: sales, i.e., maintaining circulation levels; service, i.e., delivering the customers' newspapers in a timely fashion; and collections, i.e., paying the News fully for the newspapers sold by the dealer.  The panel determined that the News's business relationships with the dealers had been consistent with its representations to them until its management changed and new policies were implemented.  Toby Pearson began work as the News's circulation director in December 1996, and he hired Jim Keeble as assistant circulation director in November 1997.  The two managers were primarily responsible for the News's business relationships with the dealers.  The panel found that Pearson and Keeble began to implement changes in the distributorship system with an aim of immediately increasing the News's profits.  In that regard, the panel found, Pearson and Keeble, by maintaining that the dealers had no property interest in their franchises, took a position contrary to the position the News had always taken.  In the panel's view, Pearson and Keeble began to attempt to coerce dealers into changing routes and delivery procedures to increase  the News's profits, without regard to the additional costs imposed on the dealers by those changes.  The panel concluded that there was convincing evidence indicating that Pearson and Keeble's ultimate objective was to eliminate the dealers so that the News could obtain directly the profits the dealers were realizing.  The panel also found that the News had made representations to the plaintiffs concerning the automatic renewal of the plaintiffs' dealership franchises that it did not intend to meet at the time it made the statement and that Pearson's and Keeble's testimony to the contrary was not credible.  Among the steps implemented by the News that negatively impacted the dealers was the decision to require the dealers to choose between "single copy" and "home delivery" distribution for their areas.  This policy effectively forced most dealers to relinquish a significant portion of their business.  In most cases, a dealer would retain either the "single copy" portion or the "home delivery" portion and sell or trade the other portion of his or her business to another dealer.  Although the panel found that the policy of splitting the two delivery categories had a profound effect upon a dealer's business, the News did not compensate the dealers for the losses caused by this new policy.  In accord with their belief that dealers had no property interest in their dealership franchises, Pearson and Keeble drafted a change to paragraph 8 of the agreement.  The new provision stated:  "This Agreement shall be from ______, and shall expire on ______, unless renewed by mutual agreement of the parties.  Provided, however, the Agreement may be immediately terminated by either party in the event of the failure of either party to perform any of its obligations under this Agreement, subject to the provisions of Paragraph 10 herein."  This change was implemented in July or August 1999.  Keeble acknowledged in his testimony that he implemented the change without considering the dealers' earlier agreements or the dealers' expectations, and that no alternatives to the provision were considered.  The agreements were presented to the dealers on a "take-it-or-leave-it" basis; the dealer's choice was either to sign the agreement or to lose the dealership.  Plaintiffs Horn, Glass, James McLendon, and Teresa McLendon refused to execute the new agreements; their dealerships were terminated on the anniversary dates of their agreements without compensation, and their branches were taken over by the News.  The panel concluded that each plaintiff had suffered significant mental anguish.  The panel found "that the record supports by clear and convincing evidence that the News consciously, deliberately, systematically, intentionally and without just cause or excuse set about to dismantle, destroy and nullify the franchise-dealership territories, contracts and agreements which had existed between the parties and that the actions and conduct of the News were deliberately calculated to permanently eliminate the dealerships and take the property owned by the dealers without just compensation."  The panel found that the "change in the term provision of the dealer agreement, coupled with Toby Pearson and Jim Keeble's management style, had the effect of abruptly destroying the market value for plaintiffs' dealerships.  In essence, The News changed its delivery system without compensating the dealers for the loss of their businesses.  The unfairness of this change is further exacerbated by the fact that the changes in the delivery system, as embodied in the contract changes was never the subject of bargaining or negotiations."  The panel concluded that the plaintiffs' dealerships were franchises, that the News had wrongfully and intentionally terminated and converted each of them, and that the News had breached fiduciary duties it owed to the plaintiffs as franchisees.  The panel found further that the agreements were ambiguous concerning automatic renewal; by resorting to the News's past practices the panel determined that the agreements were to be automatically renewed unless terminated by either party for good cause.  The panel found that the News had terminated the plaintiffs' agreements without good cause, primarily as a result of the wrongful management practices on the part of Pearson and Keeble.  The panel also held that the News's conduct toward the plaintiffs was so dramatically inconsistent with its practices during the preceding 40 years that the News should be equitably estopped from implementing and invoking the termination provisions it sought to apply to the plaintiffs.  Additionally, the panel concluded that the News had defrauded the plaintiffs by intentionally and falsely representing to them that their dealership franchises would be renewed so long as they performed their work satisfactorily.  The panel held that the News's actions were wrongful and intentional; that the plaintiffs were entitled to recover damages for the loss of their investments, for the loss of their income streams, and for their mental anguish; and that there was clear and convincing evidence that the News's actions had been oppressive and malicious, warranting an award of punitive damages. The provisions in paragraph 10 of the agreements purporting to limit the scope of "compensation" that could be recovered were held by the panel to be invalid as contrary to public policy, on the basis of five cases cited by the panel.  The panel determined that an appropriate punitive-damages award for each plaintiff was an amount 2.5 times the amount of compensatory damages due that plaintiff.  The panel noted an exception to that approach in Hyde's case, where it applied a multiple of two times gross annual revenues in establishing franchise value.  The panel was of the opinion that each plaintiff had had a viable business that was reasonably expected to produce income and profits for a period of at least 20 years, with the exception of Horn, who, because of her age (she was 55 years old when her agreement was terminated), had a business interest that would be expected to continue for only 10 years.  The panel held that the "loss of future profits is a separate and distinct element of compensatory damages, particularly in light of the fact that the Panel is without the power to order these dealerships returned to the plaintiffs."  Having found in favor of each plaintiff on his or her claims of breach of contract, breach of fiduciary duty, conversion, and fraud, and deeming the damages due under each of those claims to be the same, the panel made one award for each plaintiff for all of those claims.  The panel awarded Glass $285,000 "for loss of franchise value"; $848,603, representing the present value of the "loss of future profits for 20 years"; $200,000 for mental anguish; and $3,334,007.50 in punitive damages, for a total award of $4,667,610.50.  The panel; awarded the McLendons $285,000 for "loss of franchise value"; $975,955, representing the present value of the loss of future profits for 20 years; $200,000 each for mental anguish; and $4,152,387 in punitive damages, for a total award of $5,813,342.  The panel awarded Horn $200,000 for "loss of franchise value"; $305,170, representing the present value of the loss of future profits for 10 years; $300,000 for mental anguish; and $2,012,925 in punitive damages, for a total award of $2,818,095.  The panel awarded Stewart $175,000 for "loss of franchise value"; $533,580, representing the present value of the loss of his future profits for 20 years; $200,000 for mental anguish; and $2,271,450 in punitive damages, for a total award of $3,180,030.  The panel awarded Hyde $160,000 for "loss of franchise value"; $496,912, representing the present value of  the loss of his future profits for 20 years; $200,000 for mental anguish; and $2,142,280 in punitive damages, for a total award of $2,999,192.  On January 8, 2003, the News filed notices of appeal in the cases with the circuit clerk of Jefferson County and also filed  "Motion[s] to Vacate and Set Aside Arbitration Award."  On January 13, 2003, the circuit clerk entered the arbitrators' awards as the judgments of the court.  The trial court did nothing further, so that on January 23, 2003, under Ala. Code §6-6-15, the judgments became final.  The News did not file any subsequent notice of appeal.
HOLDING:  The Supreme Court mostly affirmed but reduced some of the damages.  The Court noted that the News filed its notices of appeal in compliance with the requirements of Ala. Code §6-6-15.  As such, the Court concluded that the notices of appeal filed by the News pursuant to §6-6-15 became effective when the judgment on the arbitrators' award was entered and were thus timely filed, and the Court denied the plaintiffs' motion to dismiss the appeal as untimely.  The Court held that, to the extent that the limited grounds listed in Ala. Code §6-6-14 (fraud, partiality, or corruption) might arguably govern judicial review of an arbitrator's award resulting from a post-dispute agreement to arbitrate when the parties have voluntarily opted for arbitration with full knowledge of the contours and significance of their dispute, those grounds do not provide adequate review of arbitrators' decisions in the numerous and varied commercial- and consumer-transaction disputes now being channeled to arbitration in this State through predispute agreements for arbitration.  The Court held that, "[a]lthough §10 of the FAA facially is applicable only to the federal district courts, a number of other state appellate courts have adopted the same approach as this Court by recognizing the applicability of the §10 standards in appeals in state courts from arbitration awards."  Additionally, the Court joined the majority of other state appellate courts that have considered the matter in now recognizing  "manifest disregard of the law" as a ground available for reviewing an arbitration award.  The Court held that a party seeking to vacate an arbitration award on the basis of manifest disregard of the law must establish that "(1) the arbitrators knew of a governing legal principle yet refused to apply it or ignored it altogether, and (2) the law ignored by the arbitrators was well defined, explicit, and clearly applicable to the case."  The Court held that it cannot say that the arbitrators exceeded their powers in consolidating the cases for purposes of holding one hearing; in doing so they were exercising their discretion in structuring arbitration procedures.  The Court held that, constrained by the limited reach of its review under the "exceeded powers" ground, it cannot say that the arbitration panel exceeded its authority by holding the provisions of paragraph 10 invalid and void as unconscionable.  The Court held that the arbitration panel should not have awarded each plaintiff both the "loss of franchise value" experienced by each plaintiff and the present value of the "loss of future profits" of each plaintiff because an award of both future lost profits and the lost value of each of the plaintiffs' businesses is duplicative.  Therefore, the Court disallowed and vacated that portion of each award providing damages for the smaller separate component of "loss of franchise value."  The Court found no instance where the News has successfully identified a manifest disregard by the panel of the law of punitive damages.  Because the Court upheld the award of compensatory and punitive damages made as a result of a finding for the plaintiffs on the fraud claim, as adjusted to eliminate duplication of damages, it pretermited consideration of the challenges to the award of the same damages under the breach-of-contract, conversion, and breach-of-fiduciary-duty claims.)
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• Isom v. St. Paul Fire & Marine Ins. Co.,

No. 1021699 (Ala. June 11, 2004)
(The Supreme Court affirmed without opinion.  Justice Johnstone wrote an opinion dissenting from affirming the summary judgment on the plaintiff-appellant's contract claim, but concurring in affirming the summary judgment on all of the other claims.)
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• Ex parte Cruitt,

No. 1022118 (Ala. June 11, 2004)
(The Supreme Court quashed the petition for writ of certiorari, but noted that in quashing the writ, it did not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion.)
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• St. Paul Fire & Marine Ins. Co. v. Christiansen Marine, Inc.,

No. 1030014 (Ala. June 11, 2004)
(marine insurance; implied warranty of seaworthiness; estoppel; deductible; "accident" and "occurrence"; trip-risk endorsement; This dispute arises out of a barge accident that occurred in the Gulf of Mexico.  Christiansen Marine, Inc. is a marine towing company.  Dogwood Management Services, Inc., although now out of business, was a corporation affiliated with Upchurch, Inc.; Upchurch, Inc., was engaged in the lumber and pulpwood business.  In early 1995, Dogwood entered into a contract with Christiansen Marine to tow from Mobile to Williamston, North Carolina, seven hopper barges Dogwood was negotiating to purchase.  The barges were 20 to 25 years old.  Dogwood was arranging financing for the purchase and insurance on  the barges.  In March 1995, Dogwood, through one of its principals, Tuck McConnell, hired Perry Beebe, a licensed marine surveyor, to provide a "condition and valuation" survey on the barges it was considering purchasing.  Beebe issued surveys on all seven barges; those surveys revealed, by way of Beebe's comments and by way of photographs, that the barges leaked and were in need of repairs.  Beebe's surveys indicated that certain repairs to the barges were "considered compulsory for insurance underwriting purposes."  However, after receiving the surveys in draft form, McConnell contacted Beebe and asked if certain of the repairs could be deferred until the next maintenance scheduled for the barges.  Beebe agreed that those repairs could be deferred but he advised that certain other repairs be completed immediately.  He amended the recommendations section of his surveys to reflect that the repairs listed "should be completed at the next regular servicing/maintenance period."  In each draft survey and in each amended survey, Beebe concluded by stating "[i]n the opinion of this undersigned, subject vessel is considered suitable for its intended purpose and a satisfactory risk for interested underwriters. ... In accepting this report it is understood that this survey was performed for condition and valuation purposes only and that no warranty as to the condition, seaworthiness or marketability of subject vessel is expressed or implied."  In April 1995, Dogwood contacted its insurance broker, Lee Wimberly of Rollins Hudig Hall, regarding Dogwood's need for a marine-insurance policy on the barges.  Wimberly provided Travitz a copy of a letter from Dogwood; this letter indicated that "all repairs necessary to make the vessels seaworthy have been performed."  Travitz faxed a "quote sheet" to Wimberly on that same date.   After receiving the quote sheet from Travitz, Wimberly issued Dogwood a binder of coverage with St. Paul.  The binder specifically indicated that the barges were covered for the trip from Mobile to North Carolina.  This binder was then faxed to John Christiansen, the principal of Christiansen Marine, to notify him that the barges were insured and that he could depart from Mobile with the barges.  Also on April 12, Wimberly sent Travitz copies of Beebe's amended surveys on the barges.  After receiving and reviewing the surveys, Travitz took no further action regarding the coverage St. Paul issued to Dogwood.  On April 23, 1995, two tugboats belonging to Christiansen Marine left Mobile with the seven barges bound together into a single tow.  Approximately four miles from the mouth of Mobile Bay in the Gulf of Mexico, the tow of barges broke apart as a result of taking on water.  As a result, Christiansen Marine incurred various damages.  Christiansen Marine sought to recover those damages from Dogwood.  Dogwood reported the incident with the barges to St. Paul, and St. Paul conducted an investigation.  However, at the time of the incident St. Paul had not yet issued a formal policy of insurance to Dogwood.  St. Paul did not issue the policy of insurance until May 12, 1995, after it had concluded its investigation of the loss.  When St. Paul issued a formal "paper" policy, it issued the standard form policies referenced on the quote sheet and the binder; however, St. Paul also included a "Trip Risk Endorsement," which provided:  "It is in condition of this extention [sic] that the barges are confined to the Intercoastal Waterway of the U.S. (where present) and the Okeechobee Barge Canal, otherwise not to exceed 3 miles off shore.  Furthermore, the barges shall be in control of two tugs at all times."  St. Paul's quote sheet did not indicate that a trip-risk endorsement would be included in Dogwood's insurance coverage for the barges; the binder issued by Rollins Hudig Hall did not mention a trip-risk endorsement.  On June 2, 1995, St. Paul notified Dogwood that it intended to deny the claim.  On June 13, St. Paul filed a declaratory-judgment action against Dogwood in the United States District Court for the Middle District of Florida; St. Paul sought a determination that it owed no coverage for the April 23 incident because the barges were unseaworthy, because the trip-risk endorsement contained in the policy was violated when the barges went beyond the three-mile provision, and because the damages did not arise out of a covered peril.  St. Paul did not name Christiansen Marine as a party to the declaratory-judgment action.  On September 25, 1995, Dogwood sued Christiansen Marine in the Mobile Circuit Court, claiming damages as a result of the April 23 casualty.  Christiansen Marine counterclaimed, asserting a breach-of-contract claim and seeking damages as a result of the April 23 loss.  In 1997, St. Paul and Dogwood entered into a settlement agreement in the declaratory-judgment action; in this settlement agreement, St. Paul agreed to pay Dogwood $25,000 in return for a release of all claims for insurance coverage under the policy.  St. Paul and Dogwood then entered into a consent judgment, which was submitted to and approved by the federal district court on May 21, 1997.  In the consent judgment, Dogwood acknowledged that at the time of the loss its barges were outside the three-mile navigational limitation stated in the trip-risk endorsement.  The parties stipulated that because Dogwood's barges were outside the three-mile limit in the trip-risk endorsement, Dogwood's policy with St. Paul was "null and void at all times relevant, including but not limited to the time of the occurrence on April 23, 1995," as a result of Dogwood's violation of the trip-risk endorsement.  As a result of this consent judgment, the district court dismissed, with prejudice, Dogwood's counterclaim seeking coverage under the policy and money damages.  Although St. Paul raised the issue of the seaworthiness of the barges in its complaint for a declaratory judgment, the consent judgment did not address that issue.  However, St. Paul included in the consent judgment language that purported to reserve to St. Paul the right to assert "any and all further defenses to coverage under the subject combined policy including any future lawsuit commenced by Dogwood and/or any other third party, including but not limited to Christiansen Marine, Inc."  Christiansen Marine was not a party to the declaratory-judgment action, was not a party to  the consent judgment, and was not a party to the settlement agreement.  On August 24, 2001 (over four years after the declaratory-judgment action was settled), a jury in Dogwood's action against Christiansen Marine in the Mobile Circuit Court  returned a verdict against Dogwood on its claims against Christiansen Marine and in favor of Christiansen Marine on its counterclaim.  The jury awarded Christiansen Marine $457,415.79 in damages.  In response to special interrogatories submitted to the jury, the jury indicated that Christiansen Marine had not been negligent and that therefore Christiansen Marine's negligence could not have been a proximate cause of Dogwood's damages, and that Dogwood's barges had been unseaworthy as claimed by Christiansen Marine and that that unseaworthiness was a proximate cause of Christiansen Marine's loss.  The trial court entered a judgment on the jury's verdict.  Dogwood did not appeal, and the judgment for Christiansen Marine and against Dogwood became final.  After the expiration of 30 days, the judgment against Dogwood remained unsatisfied.  On November 6, 2001, Christiansen Marine sued St. Paul and Dogwood in the Mobile Circuit Court; Christiansen Marine alleged that, pursuant to Ala. Code §27-23-2, it was entitled to the proceeds of the St. Paul policy issued to Dogwood in order to satisfy its judgment against Dogwood.  Christiansen Marine's action against St. Paul was assigned to the same judge who presided over Dogwood's action against Christiansen Marine.  In its answer to the complaint, St. Paul admitted that it had issued the binder of coverage for the barges, that the binder made no mention of a trip-risk endorsement, and that the formal policy was not issued until after the April 23, 1995, incident.  However, St. Paul asserted, among other things, that the policy was void ab initio because the barges were unseaworthy at the inception of the policy; that Christiansen Marine was bound by the consent judgment issued by the federal district court in which Dogwood admitted that it had violated the navigational limits of the policy; that in the settlement agreement Dogwood had released St. Paul from any and all liability under the insurance policy; and that because Christiansen Marine's loss occurred beyond the navigational limits of the St. Paul policy, St. Paul owed no coverage for the damage.  After a bench trial during which the trial court received evidence ore tenus, the trial court entered a judgment in favor of Christiansen Marine and against St. Paul.  In its order, the trial court held that St. Paul was obligated to provide coverage to Christiansen Marine for certain of the damage suffered by Christiansen Marine in the April 23 loss.  The trial court concluded that, because St. Paul had actual and constructive knowledge of the condition of the barges before the loss occurred, St. Paul was estopped to rely on the unseaworthiness of the barges as a reason for denying coverage; the trial court also concluded that the terms of the policy as negotiated by St. Paul and Dogwood's broker did not include a trip-risk endorsement or a navigational limit.  The trial court further determined that Christiansen Marine was not bound by the consent judgment entered by the federal district court because Christiansen Marine was not a party to that declaratory-judgment action; therefore, the judgment entered in that action could not bind Christiansen Marine or prejudice Christiansen Marine's rights.  Additionally, the trial court conclu