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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 concluded that Dogwood had not withheld material information from St. Paul by failing to provide both versions of Beebe's surveys to St. Paul and therefore that Dogwood had not violated any duty uberrimae fidei (of utmost good faith) to St. Paul.  The trial court also heard testimony from St. Paul's director of global marine claims, who acknowledged that, if the policy was not void, certain of the damage Christiansen Marine suffered would be covered by Dogwood's insurance policy.  Based on that testimony and on its own reading of the insurance policy, the trial court awarded Christiansen Marine $293,151.53 in damages and postjudgment interest.
HOLDING:  The Supreme Court affirmed the judgment in favor of Christiansen Marine insofar as it relates to the trial court's finding that St. Paul is obligated to provide coverage under the policy issued to Dogwood.  The Court reversed the trial court's judgment insofar as it relates to the amount of damages awarded to Christiansen Marine.  The Court held that the absolute nature of the implied warranty of seaworthiness, if it is such, does not insulate an insurer from the legal ramifications of its own conduct.  The Court held that the trial court did not clearly err in finding that St. Paul was estopped from relying on the unseaworthiness of the barges as a defense to coverage.  The Court held that whether the language originally contained in Beebe's surveys was material to St. Paul's decision to insure Dogwood's barges was a question of fact to be determined by the trial court, and because the trial court's determination is not plainly or palpably wrong or against the preponderance of the evidence, it must affirm the judgment on this issue.  The Court held that if St. Paul is estopped from relying on unseaworthiness as a defense to coverage, it is also estopped from arguing that because the barges were unseaworthy, a particular item of loss is not covered under the policy.  The Court held that under the facts and procedural history of this case, St. Paul is estopped from asserting the unseaworthiness as a defense to a claim for damages.  The Court held that the trial court did not err in including the $62,514 in the amount of damages awarded to Christiansen Marine.  However, the Court held that the trial court should have applied a deductible to Christiansen Marine's recovery of damages.  That is, the Court held that the deductible due for the April 23 loss is $2,500 and that Christiansen Marine's recovery of damages under Ala. Code §27-23-2 should be reduced by that deductible.)
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• Ex parte Shaver,

No. 1030205 (Ala. June 11, 2004)
(criminal; search and seizure; unlawful manufacture of a controlled substance in the second degree; Brian Shaver, his wife Joyce Lawler Shaver, and a friend, Catherine Aaron, stopped at a Wal-Mart store in Russellville.  While at the store, each of them bought multiple packages of an over-the-counter cold medication containing pseudoephedrine.  A Wal-Mart employee became suspicious of the customers; the employee followed the three individuals into the parking lot where she,  pursuant to established store policy, obtained the license plate number and a description of the vehicle in which the three were traveling.  She observed that the vehicle had an out-of-county tag.  The Russellville Police Department was contacted by Wal-Mart personnel regarding the purchases,  and the police department notified its patrol officers to be on the lookout for the Shaver vehicle.  Officer Harold Washington of the Russellville Police Department spotted the vehicle and detained the occupants in the parking lot of a nearby Kentucky Fried Chicken restaurant, until Deputy Hargett of the Franklin County Sheriff's Department arrived.  When Deputy Hargett arrived and walked over to the vehicle, he immediately noted pseudoephedrine tablets in plain view inside the vehicle.  Based on Deputy Hargett's knowledge of the suspicious nature of the pseudoephedrine purchases via police radio dispatch, and statements made by the parties after the three were read their Miranda rights, Deputy Hargett arrested Shaver and the two females and charged them with the possession of precursor substances with the intent to manufacture a controlled substance.  Shaver made the following statement after his arrest:  "Today me and Joyce Shaver and Catherine Aaron came to Russellville.  We went to Wal-Mart and I went in and bought three boxes of pills and a tube of Carmex [brand medicated lip balm].  My wife and Catherine also bought three boxes of pills.  We then were going on.  I wasn't going to cook meth with these today, but sooner or later I'm sure that's what they would be used for, meth."  Aaron also gave a statement indicating that the pills might ultimately be used to make "meth."  Investigator Hargett stated three times during the suppression hearing that the basis for the stop was a telephone call 'from Wal-Mart' indicating that several boxes of pseudoephedrine pills had been purchased.  On cross-examination of Investigator Hargett, he stated that he could not testify as to who that phone call came from and that he couldn't testify as to what reasonable suspicion that Harold Washington used to pull over the vehicle other than the phone call from Wal-Mart.  At his guilty-plea hearing, Shaver reserved the right to appeal the issues of the propriety of the trial court's denial of his motion to suppress certain evidence and the constitutionality of Ala. Code §13A-12-217.  The Court of Criminal Appeals affirmed. 
HOLDING:  The Supreme Court reversed.  The Court noted that the only basis the police had for detaining Shaver's vehicle, established by Deputy Hargett's testimony, was a telephone call from an unknown individual who was purportedly calling from the Wal-Mart discount department store at which the pseudoephedrine had been purchased and that the record does not supply any information concerning the telephone call to the police from the Wal-Mart store other than Deputy Hargett's testimony that he heard the Russellville police officers giving information about a telephone call they had received  from Wal-Mart.  The Court held that the transcript of the suppression hearing contains no evidence to support the conclusion that the caller was in any way reliable.  The Court concluded that the scant evidence provided by Deputy Hargett concerning the nature of the Wal-Mart telephone call provides insufficient indicia of reliability to establish the requisite "reasonable suspicion" required under Terry for an investigative stop. Accordingly, the Court held that the trial court erred when it denied Shaver's motion to suppress the evidence.)
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• Ex parte Alabama State Personnel Bd.,

No. 1031173 (Ala. June 11, 2004)
(The Supreme Court denied the petition for writ of certiorari without opinion, but it noted that in denying the petition, it did not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion.)
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Opinions Released June 4, 2004

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JUNE 4, 2004

 
• Ex parte State of Alabama (In re: J.L.N. v. State),

No. 1020651 (Ala. June 4, 2004)
(criminal; standing; sex offenders; constitutionality of Ala. Code §15-20-26(b), which prohibits an adult criminal sex offender from establishing a residence within 1000 feet of the victim's residence; On April 10, 2000, J.L.N. was convicted of second-degree rape, or "statutory rape," a violation of Ala. Code §13A-6-62(a)(1).  At the time of his arrest, J.L.N. was 28 years old and the victim, L.N.P., had just turned 15 years old.  The trial court sentenced J.L.N. to 6 years' imprisonment but, pursuant to the Split Sentence Act, Ala. Code §15-18-8, split the sentence, ordering J.L.N. to serve 90 days' imprisonment and to serve the remainder of the sentence on probation.  After his convictions, he was classified as an adult criminal sex offender under the Community Notification Act, Ala. Code §15-20-20 et seq.  After J.L.N. was released from jail, but apparently while he was still on probation, L.N.P. and her mother moved into J.L.N.'s house.  J.L.N. was arrested and was charged with and convicted of violating Ala. Code §15-20-26(b), a part of the Community Notification Act, because he, an adult criminal sex offender, established a residence or another living accommodation within 1,000 feet of the property on which the victim or any of her immediate family members resided.  J.L.N. entered a negotiated guilty plea and reserved his right to challenge the constitutionality of §15-20-26(b).  J.L.N. appealed to the Court of Criminal Appeals, which reversed his conviction for violating §15-20-26(b), holding that §15-20-26(b) impinges on J.L.N.'s right to marry and is therefore unconstitutional.
HOLDING:  The Supreme Court reversed the Court of Criminal Appeals.  The Court noted that while the Court of Criminal Appeals' opinion notes that L.N.P., the victim, purportedly stated in an unverified witness-statement form transcribed by a police officer, that she and J.L.N. were "engaged," J.L.N. and the victim are not married and they have not attempted to marry.  Instead, the Court noted, J.L.N. was arrested and convicted of cohabiting with the minor victim in violation of §15-20-26(b).  The Court noted that "J.L.N. does not have a constitutional right merely to cohabit with his minor statutory-rape victim in this case."  Thus, the Court held that J.L.N. has not demonstrated what, if any, legally protected right of his has actually been violated, and he has failed to show that he has standing to challenge Ala. Code §15-20-26(b).  The Court noted that, at most, J.L.N. alleges that, if in the future he should attempt to marry L.N.P., §15-20-26(b) would violate his constitutional right to marry.  The Court held that this allegation is insufficient to demonstrate that J.L.N. has actually suffered an injury and that that injury was to a constitutionally protected right.)
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• Ex parte State Farm Mut. Auto. Ins. Co.,

No. 1021378 (Ala. June 4, 2004)
(venue;  uninsured-motorist insurance; Carl R. Robinson and his wife, Teresa Ann Robinson, residents of Bibb County, were involved in an automobile accident with Jamie Denise Corley, also a resident of Bibb County.  The Robinsons sued Corley in the Bessemer Division of the Jefferson Circuit Court, alleging that Corley's negligence and/or wantonness caused the accident and seeking damages.  The complaint recites that the accident occurred in Bibb County.  The complaint named State Farm, the Robinsons' insurer, as a defendant and sought uninsured-/underinsured-motorist insurance benefits.  The Robinsons purchased their policy from State Farm in Bessemer.  State Farm filed a motion to transfer the action to the Bibb Circuit Court, arguing that venue was improper in the Bessemer Division of the Jefferson Circuit Court.  Corley filed a similar motion.  The Robinsons filed an opposition to the motions to transfer, arguing that venue was proper in the Bessemer Division of the Jefferson Circuit Court and that the accident actually occurred in Tuscaloosa County, not Bibb County.  On November 15, 2002, the trial court entered an order granting the motions to transfer and directing the court clerk to transfer the action to the Bibb Circuit Court.  The Robinsons' counsel requested the trial court to reconsider its order transferring the case.    On December 6, 2002, the trial court entered an order setting aside its November 15 order and denying the motions to transfer.  On June 18, 2003, State Farm and Corley petitioned the Supreme Court for a writ of mandamus directing the trial court to vacate its order setting aside its earlier order and denying the motions to transfer.
HOLDING:  The Supreme Court granted the petition and issued the writ.  The Court held that although the petition was filed outside of the presumptively timely time, the Petitioners had included a statement providing an explanation and the Respondents did not challenge the timeliness of the petition or argue that the Petitioners failed to show good cause under Ala.R.App.P. 21(a).  Thus, the Court agreed to consider the petition.  The Court held that because this cause of action did not "arise" in the Bessemer Division of the Jefferson Circuit Court, venue in the Bessemer Division is improper.  The Court noted that there can be no breach of an insurance contract providing uninsured-motorist coverage until the insureds prove that they are legally entitled to recover.  Because, in order to recover benefits from State Farm, the Robinsons must prove that they are "legally entitled to recover" damages stemming from the accident, the Court concluded that the "omission" or "wrongful act" underlying this action occurred at the place of the accident, which is not in the Bessemer Division of the Jefferson Circuit Court.  The Court held that State Farm and Corley have demonstrated that the Bessemer Division of the Jefferson Circuit Court is an improper venue; therefore, they are entitled to a transfer of this case to the Bibb Circuit Court.)
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• Ex parte J.R.,

No. 1021965 (Ala. June 4, 2004)
(termination of her parental rights; viable custodial alternative; relative placement; hearsay; The record reveals that J. and J.R. had one child, J.L.R., a daughter, born to the marriage. J.R.'s daughter M.H. was also a member of the household unit, and the older of the two girls.  In 1993, as a result of an automobile accident, J.R. became a quadriplegic.  At the time of the accident, J.L.R. was a newborn and M.H. was approximately eight years old.  As a result of that accident, M.H.'s responsibilities around the household increased dramatically and over time she became the primary caregiver for both J.R. and J.L.R.  Her duties included feeding, washing, bathing, and clothing her half sister, and also taking care of household chores.  The record indicates that by the time M.H. was 13 she was also responsible for driving the family's vehicle whenever that need arose.  it was alleged that J. had sexually abused M.H., beginning when she was nine years old, approximately three to four times a month.  It was also alleged that the abuse sometimes took place in front of J.L.R.  On December 4, 1998, J. admitted to sexually abusing M.H. and was charged with rape, sodomy, sexual abuse, and incest.  That same day, J.L.R. and M.H. were placed in the temporary custody of DHR pending the outcome of a 72-hour hearing. J. subsequently pleaded guilty to three counts of sexual abuse in the first degree and was sentenced to three years in the state penitentiary.  Because J. was to be incarcerated, the court returned J.L.R. and M.H. to J.R.'s custody on December 14, 1998.  The next day M.H. overdosed on Valium while at school.  Methadone was also found in her possession.  M.H. indicated that the reason for taking the Valium was that she remembered "feeling that if I would have kept my mouth shut that none of it would have happened, and we still would have had the family together."  M.H. was asked if her mother told her that, and after she did not answer was asked if she had told the DHR worker that her mother had told her that, and M.H. said, "I believe so."  Shortly thereafter, DHR removed both children from the  household, placing J.L.R. in foster care and M.H. with her father.  J.L.R. was reunited with J.R. in January 1999.  The reunification took place in the home of J.R.'s parents, who lived "across the road" and "up the hill" from J.R.'s house.  Also living at that residence was J.R.'s mentally handicapped younger sister.  J.R., J.L.R., and J.R.'s younger sister all shared one room while J.R. and J.L.R. lived with J.R.'s parents.  On May 6, 1999, DHR allowed J.R. and J.L.R. to return to J.R.'s house, but mandated that an adult, other than J.R., be present at all times.  DHR subsequently received a report from J.L.R.'s school that she was coming to school unkempt and that her clothes were not clean.  Shortly after receiving that report, DHR removed J.L.R. from J.R.'s custody and placed her back in foster care.  Because J.R.'s mother wanted to sleep in her own bed, she started leaving J.R. and J.L.R. alone and unattended at night.  On July 6, 1999, J.R. was evaluated by Patrick Dunne, a psychologist at Altamount Counseling Associates.  In his report, which came into evidence as a part of the challenged DHR Exhibit #3, he concluded that J.R. appeared to be incapable of placing her children's needs above her own.  In September 1999, DHR conducted a home evaluation of the residence of J.R.'s parents to determine whether it was a suitable environment for J.L.R.  The report of this home evaluation, entered into evidence also as a part of DHR Exhibit #3, concluded that it was not.  On April 3, 2000, J.R. was seen by Dr. Donald Garcia.  According to a lengthy "consultation" report he authored, which came into evidence as a part of DHR Exhibit #3, he was asked to perform a psychiatric evaluation of J.R. because of rectal and vaginal injuries she had sustained during "consensual sex" with a boyfriend.  Dr. Garcia concluded in his report that J.R. was mentally and emotionally unable to make sound decisions, finding that "[t]he patient has a habit of minimizing her responsibility for problems, minimizing the poor choices she has made, and has not shown very much responsibility or good judgment in handling her injury and subsequent needs," and that "[t]he patient has demonstrated an inability to make sound judgments which has affected not only her own health but the health and welfare of her children."  Soon after Dr. Garcia's report, J.R.'s parents decided they could no longer take care of her needs and placed her in a nursing home.  Meanwhile, beginning in 2000, Darrell R. and Lisa R., the child's paternal uncle and his wife, began expressing interest in being considered as a viable family resource.  Darrell was in the United States Army and they were based in North Carolina at the time.  The North Carolina counterpart to DHR approved them as a relative resource through the Interstate Compact on the Placement of Children ("ICPC").  Later that year, however, Darrell was transferred to Alabama.  He requested a home study be done on his residence, which, according to his testimony, was denied because "[DHR social worker Akridge] petitioned the Court that I not get to see [J.L.R.] again and that I couldn't get visitation at that time."  Darrell contacted the Cullman County DHR again in March 2002, requesting he be allowed to visit J.L.R. and take her on a trip to Walt Disney World. DHR denied this request because, it says, there was a lack of substantial relationship between Darrell and J.L.R.  At the time of the August 2002 termination hearing, J.R. was in need of 24-hour care and admitted to the court that she was not physically able to care for herself or J.L.R.  After the hearing, the court entered a final judgment terminating J.R.'s parental rights as to J.L.R.  Although J.R.'s parental rights were terminated, she is not the one seeking to regain custody of J.L.R.; rather, she challenges the termination on the ground that Darrell and Lisa were a viable family resource and, therefore, that there were less drastic measures for the court to take than terminating her parental rights.  J.R., along with Darrell and Lisa, insisted in their briefs to the Court of Civil Appeals that "[d]uring the trial both the uncle and aunt and the maternal grandparents of the minor child presented themselves to the Court as ready[,] willing and able to take custody of [J.L.R.]..."  Akridge testified that there were two main reasons DHR did not consider Darrell and Lisa a viable family resource.  First, DHR was concerned with the amount of contact Darrell would have with his brother J., J.L.R.'s father, who had been convicted of sexually abusing J.L.R.'s half sister, M.H.  Akridge's second reason for rejecting Darrell and Lisa for custody consideration as a viable alternative less drastic than the termination of J.R.'s parental rights was based on the alleged lack of efforts by Darrell and Lisa to establish and maintain a relationship with J.L.R.
HOLDING:  The Supreme Court reversed.  The Court noted that DHR, by Akridge's admission, did not fully investigate Darrell and Lisa's potential as a viable family resource before deciding that they did not qualify as a viable resource.  The Court held that DHR presented no evidence that clearly indicated why Darrell and Lisa were "unsuitable" as an alternative family resource, a decision far less drastic than terminating J.R.'s parental rights.  Because the Court remanded the case, it also addressed briefly the hearsay issue.  The Court noted that a parental-rights-termination hearing is an adjudicatory proceeding at which hearsay evidence is  inadmissible.  The Court held that the trial court should consider in connection with the further proceedings to be conducted on remand in this case whether Akridge's testimony was sufficient to lay the proper predicate under Rule 803(6) for admission of all of the reports contained in DHR  Exhibit #3.)
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• Ex parte Peraita,

No. 1021974 (Ala. June 4, 2004)
(criminal; capital murder; stipulations; prior convictions; expert testimony; double jeopardy; Cuhuatemoc Hinricky Peraita is an inmate in Holman Correctional Facility.  At the time of the incident resulting in the capital murder convictions, he was serving a sentence of life imprisonment as the result of earlier convictions for murder.  At some time during his incarceration, he broke off a homosexual relationship with fellow inmate Quincy Lewis and began another homosexual relationship with inmate Michael Castillo.  After Peraita began his relationship with Castillo, Lewis often threatened Peraita and Castillo.  In the early hours of December 11, 1999, Peraita and Castillo were sitting on or near Castillo's bunk bed in a dormitory-like room housing several inmates.  Lewis walked toward Castillo's bed and sat on a bed across from Castillo's, facing Castillo and Peraita.  Peraita stood to leave and walk back to his bunk bed.  As he did, Lewis stood up and slapped Peraita on his face.  Peraita did not respond, but continued walking to his bed.  Minutes later, Peraita returned to Castillo's bed.  Lewis was still sitting on the bed across from Castillo's, Peraita sat down, remained seated for a few minutes, then stood to leave.  However, instead of leaving, Peraita grabbed Lewis's head and snapped it back.  Castillo then drew a knife and stabbed Lewis multiple times in the neck and other areas; he also accidentally stabbed Peraita.  Lewis died later that morning.  Peraita was charged with two counts of capital murder.  Count one alleged a violation of Ala. Code 1975, § 13A-5-40(a)(6), which classifies as a capital offense "[m]urder committed while the defendant is under sentence of life imprisonment."  His indictment on that count stated that he committed intentional murder while "under a sentence of life imprisonment imposed by the Circuit Court of Etowah County, Alabama."  Count two alleged a violation of Ala. Code 1975, § 13A-5-40(a)(13), which classifies as a capital offense "[m]urder by a defendant who has been convicted of any other murder in the 20 years preceding the crime."  His indictment on this count stated that he committed intentional murder "after having been convicted of murder within the preceding twenty years in the Circuit Court of Etowah County, Alabama."  Before trial, Peraita agreed to stipulate to his six prior convictions that resulted in his sentence of life imprisonment, and his counsel drafted a proposed stipulation.  For each count, the stipulation tracked the language of the capital-offenses statute, Ala. Code 1975, §§ 13A-5-40(a)(6) and (13), respectively.  The State refused to accept Peraita's proposed stipulations, stating that they were "factually incomplete and inaccurate."  The State proposed six stipulations, which, for each prior conviction, recounted the date, the name of the offense, the sentence imposed, and the case number and indicated the circuit court that had imposed the sentence.  The stipulations proposed by the State contained no facts concerning the nature of the underlying crimes or the events surrounding them.  Peraita rejected the State's proposed stipulations.  The trial court allowed the State to introduce documents evidencing Peraita's prior convictions for purposes of proving the capital offenses.  Those documents were heavily redacted, detailing no facts concerning the nature of Peraita's past offenses.  Most pages were either case-action summaries, jury verdict forms, or similar "housekeeping" documents.  The court determined that the documents were relevant for the State to meet its burden of proof, and that the probative value of the documents outweighed any unfair prejudice that might be generated by their introduction.  After the State rested its case, Peraita's attorneys attempted to introduce the testimony of Dr. Craig Haney, a psychologist.  Dr. Haney was called for the stated purpose of discussing the theory of "institutionalization," whether Peraita had undergone institutionalization, and whether institutionalization could have affected Peraita's state of mind so as to validate his claim that he killed Lewis in self-defense.  The court excluded Dr. Haney's testimony.  Peraita also attempted to introduce evidence indicating that Lewis had a reputation for being violent.    The trial court struck Harden's testimony and instructed the jury to disregard it also.  The jury, however, was allowed to hear Best's and Harden's testimony that Lewis had a reputation for being "violent" and "sexually violent."  Peraita was convicted of both counts of capital murder.  He appealed his conviction to the Court of Criminal Appeals, which affirmed his conviction.
HOLDING:  The Supreme Court affirmed.  The Court held that, given Dr. Haney's bare familiarity with Holman Correctional Facility, the long period of time between Peraita's crime and his interview with Dr. Haney, and the confusion that this evidence might cause the jury, it could not say that the trial judge exceeded his discretion in excluding Dr. Haney's testimony.  The Court held that Harden's testimony that Lewis had a reputation for violence was certainly within the bounds of Rule 404(a)(2)(A)(i).  The Court held that the remainder of Best's and Harden's testimony was properly excluded for two reasons.  First, the Court held that the suggested character traits conveyed by that testimony fall outside the bounds of what it considered to be "pertinent" under Rule 404(a)(2)(A)(i).  Second, the Court held that "the excluded statements addressed specific conduct by Lewis, rather than general opinion or reputation evidence."  The Court further noted that the State offered its own stipulations, which differed little from the stipulations submitted by Peraita, yet Peraita rejected the stipulations proposed by the State.  The State then carefully sought direction from the trial court, which itself sought to fairly assess the proper evidence for the State to admit.  The State followed the directions of the trial court, introducing little substantive information, but enough to prove the allegations in the capital-murder indictment.  The Court held that, because the trial court is vested with significant discretion, because little or no binding precedent existed to guide that court on this issue, and because the court carefully considered every argument submitted, it must afford the trial court the benefit of the doubt in this difficult decision. Thus, it held that the trial court did not exceed its discretion in allowing evidence of Peraita's prior convictions.  Finally, the Court held that Peraita's right to be free from double jeopardy was not violated by his having been tried and convicted of two counts of capital murder for the killing of one individual.)
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• Philadelphia Am. Life Ins. Co. v. Bender,

No. 1022141 & 1030029  (Ala. June 4, 2004)
(arbitration; DeJurnitte Bender and his wife Peggy Bender completed an application for health insurance with Philadelphia American Life Insurance Company ("Philadelphia American").  The application was provided by Ray Jenks of The Jenks Insurance Agency.  Peggy was listed as the applicant/proposed insured, and DeJurnitte was listed as a spouse/proposed insured.  Along with the application, Jenks also provided the Benders with a document entitled "Alabama Arbitration Agreement Endorsement."  This document (hereinafter "the arbitration endorsement") contained an arbitration provision.  The arbitration endorsement contained only one signature line for the "applicant," and Peggy signed on that line and inserted the date July 22, 1999.  Jenks signed on a line reserved for a witness.  DeJurnitte did not sign the document.  Jenks sent the application and arbitration endorsement to American Health Underwriters, Inc. ("AHU"), Philadelphia American's general agent, along with a check from the Benders for the initial premium.  AHU then forwarded the application and check to Philadelphia American for underwriting.  Philadelphia American contacted the Benders by telephone on August 7, 1999, to verify certain information.   Philadelphia American ultimately issued a policy to insure DeJurnitte but rejected Peggy as an insured because it was unable to obtain her medical records.  According to Philadelphia American, in correspondence dated November 22, 1999, it mailed DeJurnitte a policy, which had an effective date of November 5, 1999.  DeJurnitte, however, claims that he did not receive a copy of the policy in November 1999.  After the policy was issued, DeJurnitte and his health-care providers made numerous claims under the policy for the payment of various medical expenses.  On January 18, 2002, Philadelphia American denied certain claims related to the treatment of DeJurnitte's heart/circulatory condition.  In February 2003, DeJurnitte sued Philadelphia American, AHU, The Jenks Insurance Agency, and Ray Jenks, alleging, among other things, breach of contract, fraud, and bad faith failure to pay an insurance claim.  Philadelphia American filed a "Motion to Dismiss for Lack of Jurisdiction," in which it argued that DeJurnitte's claims against Philadelphia American were due to be arbitrated.  AHU filed a motion to compel arbitration in which it argued that it was entitled to compel arbitration under the arbitration endorsement.  DeJurnitte filed an opposition to the motions to compel arbitration, arguing that he had not consented to arbitration.  In an order filed August 29, 2003, the trial court denied the motions to compel arbitration.
HOLDING:  The Supreme Court reversed.  The Court held that although DeJurnitte did not sign the arbitration endorsement, it is part of the insurance contract to which he is a party and thus he is required to submit his claims to arbitration.  The Court noted that DeJurnitte is relying on the policy, which contains an arbitration provision, to support his claim for damages.  The Court held that DeJurnitte cannot arbitrarily pick and choose the provisions in the policy that he wants to apply; instead, if DeJurnitte wants to recover for a breach of the policy, he must pursue his claims under the terms of that contract, which include an agreement to arbitrate.  Additionally, the Court concluded, based on DeJurnitte's conduct, that he accepted the policy and its arbitration provision.)
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• Ex parte Fidelity Bank,

No. 1030483 (Ala. June 4, 2004)
(personal jurisdiction; waiver; On September 12, 2001, Allen Austin sued several defendants in the Shelby Circuit Court seeking damages he claimed as the result of failed investment plans; Austin alleged that the defendants had engaged in an international Ponzi scheme. On September 27, 2001, Austin amended his complaint to add Fidelity Bank f/k/a Fidelity National Bank ("Fidelity"), a bank located in Georgia, as a defendant.  The amended complaint named as plaintiffs two Alabama residents who claimed to be damaged as a result of investing in self- directed individual retirement accounts ("SDIRA") held by Fidelity.  On October 9, 2001, several codefendants filed a notice of removal to the United States District Court for the Northern District of Alabama.  Fidelity did not join in the notice.  On October 29, 2001, Fidelity filed in the federal court its answer to Austin's complaint.  As to the paragraphs of the complaint asserting jurisdiction, Fidelity responded that it was "without knowledge or information sufficient to form a belief as to the truth of the averments."  On November 27, 2001, Fidelity filed a motion to join the notice of removal in the federal court.  In January 2002, the federal court remanded the case to the Shelby Circuit Court, where the action had been filed originally.  Fidelity amended its answer to assert as an affirmative defense the lack of personal jurisdiction.  Austin did not object to the amendment or move to strike the answer.  Fidelity then filed a motion to dismiss for lack of personal jurisdiction.  Fidelity argued that it did not have minimum contacts with Alabama to subject it to general jurisdiction nor did it have sufficient contacts with the Alabama plaintiffs to subject it to specific jurisdiction.  Austin argued that Fidelity had waived its opportunity to contest personal jurisdiction because, he says, Fidelity did not make the claim in its initial responsive pleading or in a Rule 12(b), Ala. R. Civ. P., motion before its initial responsive pleading.  Austin also argued that Fidelity has maintained "systematic and continuous contacts" with the State since 1997.  Austin included documents establishing that Fidelity maintained  1,248 accounts for Alabama residents in 1997; 1,576 accounts for Alabama residents in 1998; 1,916 accounts for Alabama residents in 1999; 2,150 accounts for Alabama residents in 2000; 1,986 accounts for Alabama residents in 2001; 1,962 accounts for Alabama residents in 2002; and 2,118 accounts for Alabama residents in 2003.  Austin also included documents establishing that Fidelity made 515 loans to Alabama residents in 1997 to purchase vehicles; 894 loans to Alabama residents in 2001 to purchase vehicles; and 894 loans to Alabama residents in 2003 to purchase vehicles.  The trial court denied Fidelity's motion.  Fidelity sought a writ of mandamus ordering the trial court to grant its motion to dismiss it as a defendant for lack of personal jurisdiction.  Fidelity argued that it has not waived its right to assert the defense of lack of personal jurisdiction and that it does not have sufficient contacts to be subject to either specific jurisdiction or general jurisdiction in Alabama.
HOLDING:  The Supreme Court denied the petition.  The Court noted that Fidelity filed an answer as its initial response to the complaint and in that answer Fidelity averred that it was "without knowledge or information sufficient to form a belief as to the truth of the averments" relating to jurisdiction, and that such a response constitutes a denial.  Consequently, the Court held that Fidelity did not waive the defense of lack of jurisdiction over the person when it filed its initial response.  The Court also concluded that there is no clear connection between Fidelity's minimal contacts with the plaintiffs and the claims the Alabama plaintiffs assert against Fidelity in this action and that, therefore, the contacts do not rise to the level that Fidelity would reasonably anticipate being haled into court in Alabama to defend against an action brought by these plaintiffs and involving these contacts.  As such, the Court held that specific jurisdiction does not exist under the facts presented.  The Court noted that Fidelity does not dispute that it has maintained separate accounts for Alabama residents over the past several years in the following amounts:  1,248 accounts for Alabama residents in 1997; 1,576 accounts for Alabama residents in 1998; 1,916 accounts for Alabama residents in 1999; 2,150 accounts for Alabama residents in 2000; 1,986 accounts for Alabama residents in 2001; 1,962 accounts for Alabama residents in 2002; and 2,118 accounts for Alabama residents in 2003.   The Court noted that Fidelity does not dispute that it has extended vehicle loans to Alabama residents over the past several years in the following amounts: 515 vehicle loans to Alabama residents in 1997; 894 vehicle loans to Alabama residents in 2001; and 894 vehicle loans to Alabama residents in 2003.  The Court held that it would not be unreasonable for Fidelity, whose practice of accepting Alabama customers from third-party referrals was continuous and systematic, to anticipate facing litigation in Alabama, and therefore, that Fidelity should be subject to general jurisdiction under Alabama's long-arm provision, Rule 4.2(a)(2)(I).)
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• Ex parte City of Brundidge,

No. 1030490 (Ala. June 4, 2004)
(workers' compensation; credit for settlement of third-party claim; Alabama Insurance Guaranty Association Act; On May 5, 1999, Coston Collier ('the employee') was injured in an automobile accident while working in the line and scope of his employment with the City of Brundidge. At the time of the accident, the employee was 47 years old, and he had been employed with the City of Brundidge ('the employer') for 19 years. The accident caused two vertebral disks in the employee's neck to bulge and a disk in his lower back to herniate. Those injuries have prevented the employee from returning to work. The employee's treating physician opined that, as a result of the employee's injuries, the employee was permanently and totally disabled from employment. To avoid protracted litigation, the employer and the employee reached a settlement agreement whereby the employee would receive a payment every two weeks in the amount of $531.98 as workers' compensation benefits resulting from his permanent, total disability.  The settlement agreement provided that "the City of Brundidge, Alabama, and/or its insurance carrier, the Municipal Worker's Compensation Fund, Inc., and/or its worker's comp. administrator, Millennium Risk Managers, Inc. reserve any and all rights to recover and be reimbursed for any amount of compensation benefits paid to Employee/Plaintiff on account of any recovery from any third party as a result of this accident."  The employee's injuries were caused when an automobile driven by Deborah Berry collided with the rear of Collier's vehicle. The employee pursued an action against Berry. At the time of the accident, Berry was insured under an automobile-liability insurance policy issued by Reliance Insurance Company ('Reliance'); her single-incident liability limit under the policy was $1,000,000. In June 2001, Reliance filed for protection under Chapter 11 of the United States Bankruptcy Code. As a result of Reliance's bankruptcy, [the Alabama Insurance Guaranty Association ('AIGA')] assumed the obligations of Reliance with respect to the employee's claim against Berry.  Pursuant to the Guaranty Association Act, AIGA's liability is capped at the amount of $150,000 per incident.  Eventually, the employee accepted $124,900 from AIGA to settle his claim against Berry.  The employer and its workers' compensation carrier, Municipal Worker's Compensation Fund, Inc., petitioned the trial court for the award of a credit against the employer's workers' compensation liability in the same amount that the employee had received from AIGA. The employee opposed the petition. On August 29, 2002, the trial court entered a judgment granting the employer's petition.  Collier appealed to the Court of Civil Appeals.  The Court of Civil Appeals reversed the judgment of the trial court and remanded the case, holding that "the definition of a 'covered claim' in Ala. Code §27-42-5(4) specifically prevents the employer in this case from receiving a credit for workers' compensation benefits that are or will be paid."
HOLDING:  The Supreme Court reversed the judgment of the Court of Civil Appeals.  The Court adopted the reasoning of Judge Murdock's dissent and held that the Court of Civil Appeals erred because it applied §27-42-5(4) in a setting where the statute, which does not admit of a post hoc application, does not apply.  The Court noted that the rationale of the Court of Civil Appeals depends on authority relevant to a determination of the status of the claim as a covered claim before any payment is either made by or determined to be due from AIGA, and that the definition of covered claim in §27-42-5(4) deals only with the process of determining eligibility for the payment of the claim before it is made.  The Court held that §27-42-5(4) is a restriction on payments by AIGA to insurance companies and related organizations but that no such payment was made by AIGA in the present case. Instead, the Court noted, AIGA made a payment directly to the injured employee. The Court held that nothing in the statute prevents an employer (or other third party) from seeking reimbursement or "subrogation" from an amount already paid to a claimant by AIGA or from any other moneys that may come into the possession of the claimant. The Court concluded that the plain meaning of the statute, therefore, supports the judgment of the trial court.  The Court also noted that the purpose of §27-42-5(4) is to protect the financial reserves of AIGA from solvent insurers so that those reserves will be available to aid the policyholders of insolvent insurers.  The Court noted that this case, however, involves a payment that has already been made by AIGA and that no ruling by this court will make that payment recoverable by AIGA. The Court reasoned that denying the employer its reimbursement and subrogation rights would be at odds with the Workers' Compensation Act, without advancing the policy objectives of the Guaranty Association Act.)
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• Ex parte Fort James Operating Co.,

No. 1030607 (Ala. June 4, 2004)
(workers' compensation; setoff for sickness-and-accident benefits; award of "other" benefits; William Irby was employed by Fort James Operating Company ("Fort James") for 32 years.  In July 1997, while practicing with the Fort James fire-prevention department on a riverbank, Irby stepped onto a rock, the rock moved, and he fell and seriously injured his ankle.  He underwent numerous surgeries to repair the damage.  His doctors allowed him to return to work, but under certain restrictions limiting his activities.  When Irby was physically able to return to Fort James, Fort James told him that it had no job that fell within the restrictions under which Irby could work.  Irby then decided that he would retire.  From April 23, 1998, just after Irby applied for disability benefits, until June 21, 1998, the date he retired, Irby received $335 per week in sickness-and-accident benefits.  Those benefits totaled $2,823.57.  The benefits were administered by Aetna Life Insurance Company ("Aetna") but were paid from Fort James's funds.  Irby eventually sued Fort James seeking workers' compensation benefits.  Fort James pleaded several affirmative defenses, one of which was that it was "entitled to a credit against its compensation liability for all payments made to [Irby] due to his ankle injury out of the sickness and accident benefit plan provided by [Fort James]."  On September 20, 2002, the trial court for the workers' compensation action entered a judgment finding Irby permanently and totally disabled and awarding him the corresponding disability benefits, as well as future medical expenses and "other benefits as provided by the workers' compensation law of Alabama existing on July 10, 1997," which was the date that Irby was injured.  The court also found that Fort James was not entitled to a setoff for any sickness-and-accident benefits it may have provided to Irby.  Fort James then appealed to the Court of Civil Appeals, which affirmed in part and reversed in part the judgment of the trial court.
HOLDING:   The Supreme Court reversed and remanded.  The Court noted that the party bearing the burden of proof must meet that burden by a preponderance of the evidence, yet the trial court found that Fort James had not proven by "clear and convincing evidence" that Fort James had paid Irby sick pay.  Thus, the Court held that the trial court erred in requiring Fort James to prove by "clear and convincing evidence" that it had paid Irby sick pay.  The Court found that Irby was paid under a "Temporary Disability Benefit" plan maintained by Fort James that covered any "time lost from work" as the result of an injury and that, therefore, Fort James is allowed the setoff for any plan contemplated by Ala. Code §25-5-57(c)(1), including one that merely provides "sick pay."   The Court held that a decision providing for "other" unnamed benefits lacks a conclusive nature; it implies that further proceedings must take place to determine just what those "other benefits" are.  The Court held that the Court of Civil Appeals erred in affirming the trial court's order awarding "other benefits" to Irby.)
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Opinions Released May 28, 2004

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  MAY 28, 2004

 
• Ex parte Baker,

No. 1000999 (Ala. May 28, 2004)
(criminal; capital murder; admissibility of evidence of prior incidents of violence against victim; hearsay; Bobby Baker, Jr., was indicted for assault in the first degree; discharging a weapon into an occupied dwelling; and capital murder in intentionally murdering Tracy Baker in the course of kidnapping her.  At the trial, the trial court admitted evidence of six prior incidents of domestic violence purportedly committed by Baker against his wife, the homicide victim.  The jury convicted Baker.  After a sentencing hearing, in a 10 to 2 vote, the jury returned an advisory verdict of death for the capital murder.  The trial court sentenced Baker to death on the capital-murder conviction, to life imprisonment on the first-degree-assault conviction, and to life imprisonment on the conviction for discharging a weapon into an occupied dwelling.  Baker appealed his convictions and sentences, and the Court of Criminal Appeals affirmed.
HOLDING:  The Supreme Court reversed.  The Court first recognize the admissibility, for a limited purpose, of a police officer's testimony that Tracy had said that "she was afraid [the defendant] was going to kill her," as "[a] statement of the declarant's then existing sate of mind" although not as a statement that the defendant would, in fact, kill her.  The Court held that the evidence of six prior incidents of domestic violence purportedly committed by Baker was inadmissible hearsay.)
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• Brackin v. Trimmier Law Firm,

No. 1021005 (Ala. May 28, 2004)
(defamation; Legal Services Liability Act; agency; conditional privilege; negligence; In April 1999, an audit of Family Security Credit Union ("FSCU") identified apparent improprieties in the files at FSCU related to a former employee of FSCU, Mitchell Smith.  As a result of finding these apparent improprieties, Alabama Credit Union Administration ("ACUA") issued to  FSCU a "Document of Resolution," referred to as a "DOR."  This DOR directed FSCU's supervisory committee to "engage an outside firm to confirm the entries listed in the supplemental facts section of this report and any other related activity discovered during the review."  The "supplemental facts section" of the DOR referred to potential lending violations and other improprieties by Smith.  The DOR also instructed FSCU to "provide your findings to the Alabama Credit Union Administration, ACUA, and National Credit Union Administration, NCUA."  FSCU retained Steve Trimmier, the senior partner with the Trimmer Law Firm, to conduct the investigation.  The Trimmier Law Firm was FSCU's legal counsel.  In turn, the Trimmier Law Firm retained Jo Lynn Rutledge, a certified public accountant employed with the Alabama Credit Union League ("ACUL") as the director of its auditing department, to conduct the investigation of Smith's activities at FSCU.  Karen Brackin was the manager of lending, marketing, and human resources at FSCU, second in command only to Ron Fields, the president at FSCU.  It was undisputed that, at various times throughout her employment with FSCU, Brackin had advised Fields when certain loan officers were not following the policies, procedures, or recommended lending practices of FSCU.  Fields acknowledged that Brackin initially discovered and reported to him the violations and improprieties involving Smith.  Rutledge spent September 8, 9, and 10, 1999, at FSCU.  Fields, Brackin, and several other FSCU employees were attending an out-of-state conference during that time.  On September 9, while reviewing computer reports at FSCU, Rutledge noticed that the due dates on several loans originated by Smith had been "advanced."  The computer reports indicated that John Salter and Ann McMillan were the loans officers who had entered the new due dates into the computer.  Rutledge questioned Salter and McMillan; they both explained that Brackin had instructed them to change the due dates and that she did so often.  At that point, Salter suggested that Rutledge speak with Rolanda Johnson, another FSCU employee, about Brackin.  By the end of the day on September 10, Rutledge had spoken to FSCU employees John Salter, Ann McMillan, Rolanda Johnson, Tanya Drain, Bobby Chitwood, Dennis Smith, and Debra McCaghren concerning Brackin.  Rutledge claimed that "[a]s I spoke to one, they referred me to another with issues related to Karen Brackin."  Rutledge instructed the employees to reduce their statements to writing.  Those writings were unsworn.  Rutledge testified that she "felt an urgency" to discuss with someone the statements made to her about Brackin.  When she could not reach Steve Trimmier, she contacted Lloyd Moore, the senior examiner with the ACUA, to discuss what she had been told by the FSCU employees.  She did not attempt to contact any member of the FSCU supervisory committee, although that was her usual reporting procedure.  Rutledge then prepared a written summary of the information she learned about Brackin during her audit of FSCU.   Brackin spoke with Trimmier on Wednesday, September 15.  On that same day, ACUA administrator Glen Latham contacted Fields and instructed Fields to suspend Brackin from her employment immediately, pending a full investigation.  Fields notified Brackin that she was suspended as of September 15, 1999; he was instructed to, and did, take her office keys from her.  Brackin claims that Fields did not inform her of the reason for her suspension; she also claims that he did not provide her with an opportunity to respond to the charges made against her.  Rutledge provided the Trimmier Law Firm with a copy of her written report; she denies providing anyone else with her report.  She claims that she spoke only with Lloyd Moore and with Steve Trimmier regarding Brackin.  On September 16 and 17, Latham, Moore, Steve Trimmier, and Rutledge met with Earnestine McDonald, chairperson of FSCU's board of directors; Ken Livingston, chairperson of FSCU's supervisory committee; and Fields at FSCU's office in Decatur.  At these meetings, they questioned approximately a dozen FSCU employees about the information the employees had provided to Rutledge.  During this same time period, Brackin's office was searched; several of the missing loan files were located in her office.  At least one of those loan files contained unexecuted loan documents relating to loans made to Brackin's relatives.   On December 2, 1999, the ACUA notified Brackin and her attorney that a hearing would be held to determine whether FSCU should be required to establish special reserves regarding its loan activity and to determine whether Brackin should be prohibited from further participation in the affairs of the credit union.  On December 14, the hearing was held.  Brackin and her counsel refused to attend the hearing, asserting that they had been provided inadequate notice of the allegations against Brackin and the documents to be used in support of those allegations.  As a result of this hearing, Latham directed FSCU to  prohibit Brackin from participating in any of FSCU's affairs; Latham also directed FSCU to proceed with the filing of its claim with its fidelity insurer.  Brackin's employment was officially terminated on December 24, 1999.  Brackin did not appeal Latham's order as allowed under Ala. Code §5-17-8(k).  Brackin sued FSCU, Fields (both in his individual capacity and in his capacity as the president of FSCU), the ACUL, and Rutledge (both in her individual capacity and as an agent of the ACUL).  Brackin later added the Trimmier Law Firm as a defendant.  All of the defendants filed motions for a summary judgment.  The only claims that survived the defendants' summary-judgment motions were Brackin's defamation claims against FSCU (based on certain statements made by Brackin's co-employees to Rutledge during the September 8, 9, and 10, 1999, investigation of Smith); Brackin's claim that the ACUL, acting by and through its agent, Rutledge, defamed her as a result of certain statements made at the December 14, 1999, hearing; and Brackin's claim that FSCU and Fields negligently failed to monitor FSCU's employees and negligently failed to apply its rules, policies, regulations, or procedures to prevent its employees from using each other's approval codes in loan transactions and credit-collection transactions.  Those remaining claims went to trial.  At the close of Brackin's case-in-chief, the trial court entered judgments as a matter of law for the ACUL and Rutledge on the defamation claims asserted against them.  The trial court also entered a judgment as a matter of law for FSCU and Fields on Brackin's negligence claim.  The trial court also entered a judgment as a matter of law for FSCU on Brackin's defamation claim as to the statements made by all of the FSCU employees except those made by John Salter and Charles Cushing and portions of Rolanda Johnson's statement and Bobby Chitwood's statement.  After a lengthy trial, the trial court submitted to the jury Brackin's defamation claim against FSCU based on the statements of the remaining employees.  The jury returned a verdict in favor of Brackin, awarding her $800,000 in compensatory damages and $200,000 in punitive damages.  On February 10, 2003, the trial court entered its judgment on the verdict.  Brackin appealed the summary judgment entered on her claims against the Trimmier Law Firm, the ACUL, and Rutledge  (case no. 1021005).  FSCU appealed from the judgment entered on the jury verdict (case no. 1021593).
HOLDING:  The Supreme Court affirmed the summary judgments challenged by Brackin and reversed the judgment in her favor.  The Court held that Brackin failed to establish that FSCU published the statements to a third party.  The Court held that the statements made by FSCU employees to Rutledge, FSCU's agent, during her investigation fall within the parameters of the "no-publication" rule.  The Court also found that Rutledge's communication to Moore, the senior examiner with the ACUA, was protected by a conditional privilege.  The Court noted that Brackin did not cite any authority for the proposition that Rutledge owed Brackin a duty to avoid uncovering damaging information about her while performing the investigation, and the Court found no evidence of a breach of any duty owed to Brackin.  The Court further held that an attorney-client relationship is an essential element of a claim under the Legal Services Liability Act and that, in support of its motion for a summary judgment, the Trimmier Law Firm submitted undisputed evidence that it had never entered into an attorney-client relationship with Brackin.)
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• Ex parte Ted's Game Enterprises,

No. 1021125 (Ala. May 28, 2004)
(lotteries; gambling; Ala. Const. art. IV, § 65; Ted's Game Enterprises ("Ted's) maintains that the plain language of Ala. Const. art. IV, § 65, and prior caselaw allow the Legislature to promulgate laws authorizing and regulating gambling devices in which chance predominates over skill in determining the outcome.  Ted's also maintains that coin-operated amusement machines are protected from the criminal gambling statutes of Ala. Code §§13A-12-20 through 13A-12-75, by Ala. Code §13A-12-76, commonly referred to as the "Chuck E. Cheese Law."  Specifically, Ted's argues that §13A-12-76 exempts certain "bona fide coin-operated amusement machines" from the criminal gambling statutes.  The phrase "bona fide coin-operated amusement machines" is defined, in part, as "every machine of any kind or character used by the public to provide amusement or entertainment ... the result of whose operation depends in whole or in part upon the skill of the player ....".  Thus, Ted's argues that as long as coin-operated amusement machines involve "some skill" in their operation, they meet this qualification under §13A-12-76.  The first issue presented in this case is whether Ala. Const. art. IV, § 65, prohibits the Legislature from authorizing or legalizing coin-operated amusement machines as to which "some skill" influences "in whole or in part" the result obtained by the operation of the machines.  The second issue presented in this case is whether Ala. Code §13A-12-76, may, without contravening Ala. Const. art. IV, § 65, be applied so as to legalize games or activities in which skill does not predominate over chance in determining the outcome. 
HOLDING: The Supreme Court held that Article IV, § 65, means what it says, and prohibits the Legislature from authorizing "lotteries or gift enterprises" that involve games or devices in which chance predominates the outcome of the game, even if "some skill" is involved.  The Court held that §13A-12-76 may not, without contravening Art. IV, § 65, of the Alabama Constitution, be applied so as to legalize games or activities in which skill does not predominate over chance in determining the outcome.  The Court affirmed the judgment of the Court of Civil Appeals.)
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• Memberworks, Inc. v. Yance,

No. 1021460 (Ala. May 28, 2004)
(arbitration; existence of a contract calling for arbitration; James Yance telephoned a toll-free number to order a knife he had seen advertised on television.  After placing his order, the telephone operator offered Yance a free 30-day trial membership in the Leisure Advantage program, a discount club operated by Memberworks that provides shopping and travel discounts to its members.  In the telephone conversation, the operator stated: "[A]fter thirty days, the service is extended to a full year for just $7.00 a month billed annually in advance to the credit card you are using today.  Now, if you decide the program is not for you, just call the toll-free number in your kit in the first 30 days and you won't be billed ...."  Memberworks enrolled Yance in the Leisure Advantage program and sent him the Leisure Advantage membership kit.  Included in the membership kit was a document titled "Terms of Membership and Membership Agreement" ("the membership agreement").  That document stated in relevant part that "[a]ny dispute arising between You and Us will be resolved by submission to arbitration in Fairfield County, State of Connecticut in accordance with the rules of the American Arbitration Association then in effect."  Yance did not cancel his membership in the Leisure Advantage program within the 30-day trial period.  Accordingly, on August 18, 2000, Memberworks billed his credit card $84 for one year's membership in the program.  In May 2001, Memberworks mailed Yance information about renewing his account for the next year.  The mailing contained a notice that Yance's membership in the Leisure Advantage program would be renewed unless he canceled within 30 days.  Yance took no action and, on June 18, 2001, Memberworks billed his credit card $99.95 for another year's membership.  One year later, in May 2002, Memberworks mailed Yance another renewal notice telling him his account would be renewed if he did not cancel within 30 days.  Yance did not cancel and, on June 19, 2002, Memberworks billed his credit card for $119.95.  On June 21, 2002, after his wife noticed the Memberworks charge on the credit-card statement, Yance dialed the Memberworks telephone number listed on the statement to investigate the charge.  After Yance complained that he had never authorized his participation in the program, Memberworks refunded him all three years' payments.  At no time during the period Yance was enrolled in the Leisure Advantage program did he ever use it.  On July 2, 2002, Yance sued Memberworks in the Mobile Circuit Court.  Memberworks moved the trial court to compel arbitration pursuant to the arbitration provision contained in the membership agreement.  After a hearing, the trial court denied Memberworks' motion, holding that Memberworks had failed to meet its burden of proving the existence of a contract calling for arbitration.
HOLDING:  The Supreme Court reversed.  The Court held that the evidence is sufficient to establish the existence of a contract between Memberworks and Yance.  The Court noted that while Memberworks may have billed Yance's credit card for the annual membership fee, it was Yance who paid his credit-card bill for two years without any question as to the legitimacy of the charge, and that those actions manifested his assent to abide by the terms of the arbitration agreement of which he received notice when he joined the program.)
*Download or view PDF version of opinion*
 
• Ex parte Murray,

No. 1021915 (Ala. May 28, 2004)
(criminal; double jeopardy; This case arises out of the murder, in which Karys Dontricia Murray and other individuals participated, of Eddie Allen, the manager of a Burger King fast-food restaurant.  In 1995, a grand jury returned a one-count indictment against Murray charging him with murder made capital because Allen was killed during the course of a robbery.  In 1997, pursuant to a plea agreement, Murray's indictment was amended to charge, and he pleaded guilty to, (1) felony murder and (2) first-degree robbery.  As part of the plea agreement, Murray waived his right to appeal.  On June 16, 1997, the trial court sentenced Murray, consistently  with the plea agreement, to life imprisonment on each conviction, the two sentences to be served consecutively.  Having waived his right to appeal, Murray simply began to serve his sentences.  He never filed a Rule 32, Ala. R. Crim. P., petition challenging either conviction.  However, despite Murray's inaction, the State convened a grand jury, which, on March 8, 2002, returned a three-count indictment against Murray, charging (1) murder made capital because it was committed during the course of a robbery, (2) murder made capital because it was committed during the course of a burglary, and (3) conspiracy to commit robbery.  The State then moved to vacate Murray's conviction and sentence for first-degree robbery, to reinstate the original one-count indictment charging capital murder, and, then, to nol-pros that indictment.  Murray moved to dismiss the March 2002 indictment.  The trial court granted the State's motions and denied Murray's motion.  Murray petitioned the Supreme Court for a writ of mandamus directing the trial court to dismiss the 2002 indictment, to reinstate his conviction and sentence for felony murder, and to vacate his conviction and sentence for first-degree robbery.
HOLDING:  The Supreme Court granted the petition for writ of mandamus.  The Court held that for the reasons explained in Ex parte Peterson, No. 1021913 (Ala. Feb. 27, 2004), a case involving the reindictment of one of Murray's codefendants under similar circumstances, Murray's contention is correct.  The Court directed the trial court to dismiss the March 2002 indictment against Murray and to reinstate his conviction and sentence for felony murder.)
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• Ex parte Gavin,

No. 1030368 (Ala. May 28, 2004)
(criminal; The Supreme Court denied the petition for writ of certiorari without opinion.  Justice Johnstone wrote a dissenting opinion.)
*Download or view PDF version of opinion*
 
• Ex parte Smith,

No. 1030431 (Ala. May 28, 2004)
(The Supreme Court quashed the petition for writ of certiorari without opinion.  Justice Lyons wrote a dissenting opinion.)
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Opinions Released May 17, 18, & 21, 2004

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON TUESDAY,  MAY 18, 2004

 
• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  MAY 21, 2004

 
• Opinion of the Justices, No. 381 (Ala. May 17, 2004)

(advisory opinion; Governor Bob Riley requested an advisory opinion as to whether the swap agreements House Bill 817 authorizes the State and certain Authorities (1) to enter into would violate state constitutional provisions prohibiting the creation of new debt by the State.  The Justices answered the question in the negative.  The Court noted that Section 213 of the Constitution prohibits the creation of new debt, but explicitly permits the State to call old bonds and to "refund" the underlying debt by issuing new bonds.  The Court noted that the State owes interest at a fixed rate on the bonds it issues, that market principles dictate that the State should refund a series of bonds if interest rates decline, and that over time the lower interest costs resulting from refunding State-issued bonds at a lower rate could save the State significant sums of money.   The Court noted that House Bill 817 is intended to enable the State to achieve a similar result in a shorter period.  It allows the State, under certain favorable market conditions, to enter into an interest rate "swap agreement.")
 
• Alabama Republican Party v. McGinley,

No. 1031166 (Ala. May 18, 2004)
(election law; On April 2, 2004, Kelly McGinley filed a qualifying form with the Alabama Republican Party ("the Party") to qualify as a candidate for Place 1 on the State Board of Education. The form was properly filled out and timely submitted. Among other things, the form requires a potential candidate to certify as follows: "I am a Republican and am in accord with, and endorse, the principles and policies of the Republican Party."  On April 4, just before midnight, the members of the Party's steering committee -- who also constitute the members of the Party's candidate committee -- received an e-mail from Clay Barclay, a member of the Mobile County Republican executive committee, raising certain objections to McGinley's qualifications to run for office as a Republican; specifically, the objections were to her loyalty to the Republican Party. The e-mail indicated that several Republican constituents who live in State School Board District One (the district in which McGinley was attempting to run as a candidate) had complained about McGinley's candidacy and had indicated that they were concerned because, according to the constituents, McGinley was listed on various Web sites as being a member of the Constitution Party and because she had articles and links on her own Web site that were anti-President George W. Bush, anti-Republican, and pro-Constitution Party. The e-mail stated that the constituents had requested that the candidate committee consider this information when reviewing McGinley's qualifications to run for office as a Republican.  On the morning of April 5, the chairman of the Alabama Republican Party, Marty Connors, telephoned Jim Zeigler, an attorney who had filed McGinley's qualifying papers, and informed him that when the candidate committee met on April 7, it would consider a challenge to McGinley's qualifications. Connors testified that he informed Zeigler of the general complaints in the April 4 e-mail and that he informed Zeigler that he and McGinley could come to the meeting and would have the opportunity to testify. Later that evening, Zeigler telephoned McGinley and informed her that her candidacy was being challenged. McGinley testified that, at that time, she did not know why her candidacy was being challenged and that she discovered all of the bases for the challenge only after the publication of certain newspaper articles and during the court proceedings below.  On the morning of April 6, McGinley, Zeigler, Chris Brown, the Party's executive director, and Barclay appeared as guests on a Birmingham radio talk show. McGinley testified that during that show she stated that she had not seen the charges against her and that she had not been invited to the hearing. McGinley also testified that during the show Brown and Barclay alleged that McGinley's disqualification as a candidate was being considered because, he alleged, she did not support the "Party line," did not support President Bush, and was supporting the Constitution Party.  That same day, shortly after the radio talk show had ended, Brown faxed a letter to McGinley and Zeigler; that letter stated: "Let this serve as a formal notification that the Alabama Republican Party will hold a Candidate Committee to verify your qualification to run for School Board (Place 1) on the Republican Party ticket. You will have the opportunity to speak on behalf of yourself at the Committee meeting being held at Alabama Republican Party Headquarters on April 7th at 6 p.m.  Chairman Marty Conners also gave verbal notice of the Committee meeting to your attorney, Jim Zeigler, on Monday, April 5th at 9:30 a.m."  At 10:29 a.m. on April 7, Zeigler, identifying himself as "Attorney for Kelly McGinley," e-mailed to the members of the candidate committee McGinley's lengthy response, prepared by Zeigler, to the challenge to McGinley's qualifications. The e-mail indicated that McGinley had "twice been promised a copy of the allegations against her, but sadly they had not been furnished." The response detailed McGinley's history as a lifelong Republican and a continued supporter of Republican candidates, and stated that her admittedly strong critiques of, in her view, many liberal tendencies in the Party were based upon her status as an "outspoken 'conservative Christian.'" Among other things, the response also addressed her admiration for, and certain of her articles concerning, the platform of the Constitution Party (but adamantly claims that she has neither joined that party nor quit the Republican Party); and claimed that she completely endorses the true Republican platform and wishes to see the Party "repent and come back to its platform." The response also contained a motion to dismiss the challenge to McGinley's candidacy based on, among other things, inadequate notice of the hearing and the failure of the Party to provide a copy of the allegations contained in the April 4 e-mail.  On the afternoon of April 7, Elizabeth Perry, executive assistant to Marty Connors, informed McGinley and Zeigler that if it was not possible for them to appear personally at the hearing, they could participate by telephone.  At 6:00 p.m. on April 7, the candidate committee met and considered the challenge to McGinley's candidacy along with the challenges to two other candidates. After discussing the issues referenced in the April 4 e-mail and Zeigler's response, the committee voted unanimously, by a vote of 20-0, to disqualify McGinley so that her name would not appear on the primary ballot. Later that evening, McGinley was notified of her disqualification. The next day, the Party filed an amendment to its earlier certification with the secretary of state, removing McGinley's name from the ballot.  On April 19, three days before the deadline for delivering absentee ballots and other materials to the absentee-election managers, McGinley filed this lawsuit challenging her disqualification. Following two hearings, the Montgomery Circuit Court held that in disqualifying McGinley the Party had violated McGinley's constitutional right to substantive due process under the Fourteenth Amendment to the United States Constitution, because it found that the Party had failed to demonstrate a "clearly articulated [P]arty rule" that McGinley had violated that would result in her disqualification and that it thereby had acted in an arbitrary manner.  The circuit court ordered that McGinley's name be restored to the June 1, 2004, Party primary ballot and that the Party and the election officials count and certify votes cast for McGinley in that election. The Party appealed.
HOLDING:  The Supreme Court reversed.  The Court held that to be successful, McGinley must produce evidence indicating that this system and its resultant deprivation was "for an improper motive and by means that were pretextual, arbitrary and capricious, and ... without any rational basis," and the Court concluded that she did not make such a showing.  The Court held that McGinley's substantive due-process claim must fail because 1) it is undisputed that there is no explicit statutory or constitutional requirement that the Party list detailed rules governing the possible disqualification of candidates to test whether the candidates are "in accord with, and endorse, the principles and policies of the Republican Party," and 2) there is no evidence indicating that the candidate committee system used by the Party or the decision reached by that committee in this case is "arbitrary," "pretextual," "conscience-shocking" or without any rational connection to the Party's objectives and statutory discretion.  The Court held that the State Executive Committee of a political party has full right, power and authority to fix and prescribe the political and other qualifications of its own members and to determine who shall be entitled and qualified to be candidates in primary elections.)
 
• SCI Ala. Funeral Servs., Inc. v. Beauchamp,

No. 1012184 (Ala. May 21, 2004)
(The Supreme Court affirmed without opinion.  Justice See wrote an opinion concurring in part and dissenting in part.)
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• Cleveland v. Seaman Timber Co.,

Nos. 1021353 & 1021422 (Ala. May 21, 2004)
(The Supreme Court affirmed without opinion.  Justice See wrote a concurring opinion.)
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Opinions Released May 14, 2004

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  MAY 14, 2004

 
• Employees of the Montgomery County Sheriff's Dep't v. Marshall,

No. 1011694 (Ala. May 14, 2004)
(employment; overtime compensation; immunity;   The Sheriff of Montgomery County appoints the persons who are employed at the Montgomery County jail and directs them in their work, but the Commission pays those persons with county funds.  Under Ala. Act No. 2280, the Montgomery City-County Personnel Board ("the Personnel Board") promulgated and published rules and regulations. These rules and regulations included the pay plan applicable to all merit system employees paid by the Commission. Thus, these rules and regulations, including the pay plan, applied to persons who worked at the jail.  Rule VIII of the rules and regulations of the Personnel Board governed the overtime compensation due persons who worked at the jail.   In January 2000, the sheriff changed the shifts for jailers and supervisors at the jail from 8 hours to 12 hours each. However, the sheriff restored the shifts from 12 hours to 8 hours each in June 2002.  Jailers or supervisors at the Montgomery County Detention Facility ("the jail") sued Sheriff D.T. Marshall, the sheriff of Montgomery County and the Montgomery County Commission in federal court. The plaintiffs claimed they were owed overtime compensation by the sheriff and the Commission. The plaintiffs asserted claims for violation of  the Fair Labor Standards Act ("FLSA") and for breach of contract.  Concluding that the Eleventh Amendment to the United States Constitution immunized the sheriff against liability under the FLSA, the federal court dismissed the FLSA claims against the sheriff with prejudice. Concluding that the Commission was not the plaintiffs' "employer" under the FLSA, the federal court likewise dismissed the FLSA claims against the Commission with prejudice. The federal court dismissed the breach-of-contract claims against both the sheriff and the Commission without prejudice.  The plaintiffs then brought the present lawsuit against the sheriff "in his official and/or individual capacity as Sheriff of Montgomery County, Alabama" and against the Commission in the Montgomery Circuit Court. The plaintiffs asserted claims against the sheriff and the Commission on these theories: (1) breach of contract grounded on the alleged nonpayment of compensation for overtime, (2) quantum meruit grounded on the alleged nonpayment of compensation for overtime, (3) breach of contract grounded on an increase in the duration of the plaintiffs' shifts from 8 hours to 12 hours, (4) "retaliation" grounded on the increase in the plaintiffs' shifts, and (5) "discrimination" grounded on the increase in the plaintiffs' shifts. The plaintiffs sought monetary and injunctive relief.  The sheriff, "in his official capacity as Sheriff of Montgomery County, Alabama" only and the Commission moved for summary judgments. In moving for summary judgment, the sheriff not only challenged the merits of the plaintiffs' claims but also asserted the affirmative defense of State immunity.  The Commission challenged the merits of the plaintiffs' claims.  The trial court entered summary judgment for the sheriff on all of the plaintiffs' claims. Although the sheriff had moved for summary judgment in only his official capacity, the summary judgment for the sheriff was not limited to the claims against the sheriff in his official capacity. The trial court entered summary judgment for the Commission on all of the plaintiffs' claims except the plaintiffs' claims for breach of contract and quantum meruit grounded on the alleged nonpayment of compensation for overtime.  The order granting the sheriff's summary-judgment motion held that State immunity immunized the sheriff from liability for money damages on the claims for: (1) breach of contract grounded on the alleged nonpayment of compensation for overtime, (2) quantum meruit grounded on the alleged nonpayment of compensation for overtime, and (3) breach of contract grounded on the increase in the length of the plaintiffs' shifts. On the ground that the sheriff's evidence had shifted the burden to the plaintiffs to produce substantial evidence establishing a genuine issue of material fact and the plaintiffs had not met that burden of production, the summary-judgment order further held that the sheriff was entitled to summary judgment on all of the plaintiffs' claims insofar as they sought injunctive relief and on the plaintiffs' claims for "retaliation" and "discrimination" insofar as they sought money damages.  The order certifying the summary judgment for the sheriff as a final judgment pursuant to Rule 54(b) stated that "the Court finds there is no just reason for delay and further directs that a judgment be entered pursuant to Rule 54(b), with respect to the complete grant of immunity to Defendant the Montgomery County Sheriff on all the Plaintiffs' claims." The plaintiffs appealed only the judgment for the sheriff.
HOLDING:  The Supreme Court affirmed the summary judgment for the sheriff in his individual capacity on all of the plaintiffs' claims.  The Court also affirmed the summary judgment for the sheriff in his official capacity on all of the plaintiffs' claims insofar as they sought money damages.  The Court also affirmed the summary judgment for the sheriff in his official capacity on the plaintiffs' claims for injunctive relief for breach of contract and quantum meruit grounded on alleged nonpayment of overtime compensation.  The Court dismissed as moot the plaintiffs' appeal insofar as it seeks review of the summary judgment for the sheriff in his official capacity on the plaintiffs' claims for injunctive relief for breach of contract, "retaliation," and "discrimination" grounded on the increase in shift hours.  The Court held that, since the sheriff's motion did not challenge the plaintiffs' claims against the sheriff in his individual capacity, the motion did not meet the initial burden of the sheriff in his individual capacity -- the burden of production, i.e., the burden of making a prima facie showing that he is entitled to summary judgment.  The Court held that State immunity immunizes the sheriff in his official capacity from liability for money damages.  The Court noted that the law obliges the Commission to pay the plaintiffs' compensation from county funds and does not oblige the State or the sheriff to pay the plaintiffs' compensation from State funds.  Consequently, the Court held that the plaintiffs failed to establish that payment of overtime compensation is a ministerial act the sheriff can be compelled to perform.)
*Download or view PDF version of opinion*
 
• U-Haul Co. of Ala., Inc. v. Johnson,

No. 1021726 (Ala. May 14, 2004)
(class action; class certification; consideration of defenses; voluntary payment doctrine;  U-Haul International, Inc. rents various types of vehicles and equipment to customers, not only through its freestanding rental centers, but also through independent dealers who operate other businesses in addition to their U-Haul rental dealerships.  Jim's Auto Service was such an independent dealer in Woodstock who was described as a "manual dealer," that is, the U-Haul rental transactions at Jim's Auto were handled manually; Jim's Auto was not computerized.  Its employees completed each U-Haul contract by hand and calculated the taxes that applied to each rental transaction.  On December 10, 1998, Andrew McBride Johnson rented a U-Haul trailer from Jim's Auto.  Jim's Auto taxed Johnson's trailer rental using a sales-tax rate rather than the proper rental-tax rate, resulting in an overcharge of $3.36.  Johnson paid the amount charged.  Johnson became suspicious as to why he was charged sales tax on a rental transaction.  He then consulted his brother, who is an attorney.  Johnson's brother advised him that a sales-tax rate should not have been charged on the rental transaction.  On December 16, 1998, Johnson returned to Jim's Auto and rented a U-Haul truck.  Jim's Auto again charged a sales tax instead of rental tax on the rental of the U-Haul truck, resulting in an overcharge of $6.39.  Despite what he had learned from his brother, Johnson again paid the amount charged by Jim's Auto because, he said, Jim's Auto was convenient and close to his place of work.  On December 17, 1998, Johnson filed the complaint in this case.  He initially sued U-Haul Company of Alabama, Inc. ("U-Haul Alabama") and Jim's Auto.  He later amended his complaint to add U-Haul International, Inc.  (U-Haul Alabama,  U-Haul International, and Jim's Auto are sometimes collectively referred to as "the U-Haul defendants").  Johnson alleged, on behalf of himself and a purported class of similarly situated persons, claims of breach of contract, fraudulent misrepresentation, suppression, negligent or wanton supervision and training, conversion, and conspiracy.  All of the claims were based upon U-Haul customers' having been charged a sales-tax rate on U-Haul rentals instead of a rental-tax rate.  Johnson contended that U-Haul International retained any amount a customer paid for taxes that exceeded the appropriate rental tax the U-Haul defendants remitted to the proper authorities.  Shortly after the complaint was filed, Jim's Auto changed its system for U-Haul transactions from a manual system to U-Haul's computerized "C.A.R.D." system.  At the time of the change, Jim's Auto had been a manual dealer for seven months.  A U-Haul dealer on the C.A.R.D. system is not required to manually calculate the appropriate tax due on the transactions–-the tax is calculated by computer.  U-Haul's tax department programs each C.A.R.D. computer with the proper rental-tax rate.  Today, every U-Haul dealer in Alabama is on the computerized system.  Shortly after the complaint was filed, Jim's Auto changed its system for U-Haul transactions from a manual system to U-Haul's computerized "C.A.R.D." system. During the seven months in which Jim's Auto was operating as a manual dealer, it entered into approximately 118 rental contracts for U-Haul equipment.  In all of those transactions, the sales-tax rate of 9% was used to calculate the taxes due from the customer, rather than the rental-tax rate.  The rental contracts used by U-Haul dealers are standardized forms; the line for applicable taxes is labeled "sales tax."  U-Haul of Alabama states that it passes rental taxes through to its customers on the line on the contract labeled "sales tax" because that is the line provided on its standardized contracts, which are used nationwide, for calculating the tax due.  The U-Haul defendants say that the contract uses the term "sales tax" because in almost every other state a sales tax is charged on rental transactions.  Johnson moved in June 2002 to certify a class.  On June 3, 2003, the trial court entered an order certifying a class only as to Johnson's breach-of-contract claim.  The order did not address the U-Haul defendants' recently asserted voluntary-payment-doctrine defense.  On August 20, 2003, the trial court amended its order to narrow the definition of the certified class to only those persons who rented and paid sales tax so renting at any time within the six years prior to filing of the complaint.
HOLDING:  The Supreme Court vacated the class certification order and remanded the case for further proceedings.  The Court concluded that the trial court exceeded its discretion in certifying a class without addressing the question of the effect upon its certification of the U-Haul defendants' voluntary-payment defense.  The Court remanded the case to allow the trial court to conduct such further proceedings as may be necessary to consider the effect on the issue of class certification of the U-Haul defendants' assertion of the voluntary-payment defense.  The Court stated that, on remand, the trial court may consider whether the U-Haul defendants are entitled to assert the defense by reason of having a colorable claim to the disputed amounts, and/or whether the conduct of the U-Haul defendants violates public policy as established by the Legislature so that a public-policy exception to the voluntary-payment doctrine applies in this case.  The Court wrote that, should the trial court conclude that the defense of voluntary payment is indeed available, the trial court must then consider, in addition to all other relevant considerations, the U-Haul defendants' objections to class certification based upon typicality and adequacy of representation by reason of Johnson's two separate transactions in determining whether to certify a class.)
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• Alabama Agricultural & Mechanical Univ. v. Jones,

No. 1021960 (Ala. May 14, 2004)
(immunity;  Statute of Frauds; employment; Early in the 1994-95 academic year, while Dr. Jeanette Jones was the vice president for research and development for Alabama Agricultural and Mechanical University ("A&M"), Dr. David Henson, who was then president of A&M, allegedly made an oral promise to Dr. Jones to increase her salary by approximately $10,000.  More specifically, her salary was to be raised in two steps -- one step that academic year (1994-95), and the second step the following year (1995-96) -- ending up with a salary of approximately $90,000 per year.  In September 1994, Dr. Henson initiated the first step by submitting a directive to the vice president for business and finance, who, in turn, passed the directive to the director of the department of human resources and personnel.  Thus, Dr. Jones received the first step of her raise, which was evidenced by a "Personnel Action Form," signed by Dr. Henson on September 16, 1994, effective from October 1, 1994, to September 30, 1995.  However, Dr. Henson resigned as president of the University in August 1995, and, by a letter dated September 5, 1996, his successor, Dr. John Gibson, notified Dr. Jones that her employment as Vice President for Research and Development would terminate on September 30, 1996, although she continued to be employed as a biology professor.  Dr. Jones never received the second step of the salary increase.  On June 8, 1998, Dr. Jones filed a grievance with the grievance committee for A&M ("the committee").  The committee recommended that Dr. Jones receive payment of the 1995 adjustment if it should be found that the board of trustees approved consecutive year payments, because she had served as Vice-President during a second year.  Dr. Gibson declined Dr. Jones's request for the salary increase.  On June 14, 2000, Dr. Jones sued A&M, as well as Dr. Gibson and 11 members of its board of trustees  (hereinafter referred to collectively as "the University").  Her complaint, as last amended, contained a breach-of-contract claim, alleging that the University had adopted a salary schedule that "form[ed] a part of Jones's employment contract with the [University]," and that the University had breached the contract "by wrongfully failing to award Jones the second half of the salary increase."  She sought "specific performance and/or injunctive relief ..., including but not limited to orders directing [the University] to increase [her] salary in accordance with the second half of the salary increase, and reimburse Jones for failure to award the salary increase in the past, and/or to award back pay."  Dr. Jones's complaint also sought a judgment declaring that she was "entitled to an increase in her salary in accordance with the salary increase," and to "an award of back pay for failure of [the University] to award the salary increase."  Finally, her complaint sought a writ of mandamus, directing the University to "increase her salary in accordance with the salary increase," and to "award back pay."  The University answered the complaint, asserting affirmative defenses, including sovereign immunity and the Statute of Frauds.  The case was tried without a jury.  The trial court determined that the University was "required to increase [Dr. Jones's] annual salary by an amount of $4,955.00 annually, beginning with the 1998-99 academic year."  Notwithstanding its previous conclusion that no damages could be awarded for breach of contract, the court awarded Dr. Jones back pay.  The case was tried without a jury.  The trial court determined that the University was "required to increase [Dr. Jones's] annual salary by an amount of $4,955.00 annually, beginning with the 1998-99 academic year."  Notwithstanding its previous conclusion that no damages could be awarded for breach of contract, the court awarded Dr. Jones back pay.  More specifically, it ordered the University to "pay to [Dr. Jones] an amount equal to the compensation she would have received from the beginning of the 1998-99 academic year until the date of [its] order if [she] had received a raise of $4,995.00 for the 1998-99 academic year, and continuing to the [date of the order]."  The award was to be augmented by "all cost of living increases provided to [A&M] employees," plus prejudgment interest.  The trial court also ordered the University "to immediately raise [Dr. Jones's] annual compensation in the amount of $4,995.00, plus any cost of living increase from 1998."  Thus, the trial court ordered both retrospective and prospective relief.  The University appealed.
HOLDING:  The Supreme Court reversed.  The Court held that, on its face, the promise of the second step of the raise was incapable of performance within one year of the making of the promise.  The Court noted that Dr. Jones would not, indeed could not, receive any part of the second-step salary increase until she had been paid for one year under the first step.  Thus, the Court concluded that unless Dr. Jones could demonstrate that the oral promise falls within an exception to the Statute of Frauds, she could not recover from the University.  The Court also held that because the prospective relief awarded by the trial court was based on a portion of the contract that was manifestly executory, that portion of the judgment was barred, as a matter of law, by the Statute of Frauds.  However, the Court concluded that it need not determine whether the Statute of Frauds also barred the retrospective relief awarded, because it held that that portion of the judgment was barred by sovereign immunity.  The Court expressly overruled Ex parte Hirsch, 592 So.2d 597 (Ala. 1991), to the extent it sanctioned a claim for damages arising out of a breach of contract involving unliquidated claims against the State, and the Court also overruled Breazeale v. Board of Trustees of Univ. of South Alabama, 575 So.2d 1126 (Ala. Civ. App. 1991).  The Court held that a writ of mandamus will issue to compel payment only of such claims as are liquidated, and that mandamus will not lie to compel the University to agree with Dr. Jones's version of disputed facts.)
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• Ex parte Medical Licensure Comm'n of Ala.,

No. 1022156 (Ala. May 14, 2004)
(medical license revocation; substantial evidence; discovery; due process; The Medical Licensure Commission of Alabama ("the Commission") revoked the medical license of Oscar D. Almeida, Jr., based upon testimony of several of his former patients that he had engaged in sexual misconduct while he was rendering professional services.  The Commission heard  testimony from three former patients of Almeida's who had filed complaints against him with the Board.  It was on their testimony that the Commission based its findings of fact.  The first patient testified that Almeida conducted an improper vaginal examination and that after the exam, when no chaperone was present in the examining room, he kissed her.  This same patient testified that on another visit when they met in his private office, they engaged in open-mouth kissing and fondling.  He attempted to remove her undergarments and when she resisted, he unbuckled his pants, which the patient interpreted as a request that she perform oral sex.  The second patient testified that not only had the vaginal examinations conducted by Almeida been  inappropriate, but he had also "come on" to her in the form of winking and smiling at her and making comments regarding her looks during his medical examinations of her. The third patient testified that Almeida had engaged in sexual misconduct in the form of flirting with her during her examinations.  This third patient also testified that Almeida had asked her to meet him at various places and had invited her to go on a trip with him, during which they could participate in a "threesome."  In addition to these three former patients who had filed complaints against Almeida, the Commission heard testimony from a fourth former patient who provided explicit details of an improper vaginal examination Almeida had performed on her.  The fourth patient's testimony that she left the office very upset after the improper examination was corroborated by one of Almeida's former employees who was working the front desk on the day of the incident.  The Commission also heard testimony from two expert witnesses.  Gene Abel, M.D., a psychiatrist who had been practicing for 15 years at that time and a nationally recognized expert in the area of sexual misconduct by professional persons, evaluated Almeida over a three-day period and interviewed four of Almeida's former patients who had filed complaints regarding Almeida's conduct.  Dr. Abel concluded that Almeida crossed well-recognized sexual boundary lines in treating those patients and that Almeida should undergo treatment.  Kimberly Ackerson, Ph.D., a psychologist who had practiced for seven and one-half years at the time of her testimony, testified for Almeida.  She acknowledged that she is not an expert in the field of deviant sexual behavior and that her evaluation of Almeida for sexual misconduct in his professional capacity is the first one she had ever performed.  Dr. Ackerson testified that she accepted Almeida's statements as true and that she rejected the complaining witnesses' allegations without interviewing those witnesses.  Based upon the evidence presented at the hearing, the Commission found that Almeida had engaged in unprofessional conduct and that he had had "sexual contact" with a patient.  Based upon those findings, the Commission revoked Almeida's license to practice medicine in Alabama.  Thereafter, Almeida filed in the Montgomery Circuit Court a notice of appeal and a motion to stay the revocation order or, in the alternative, a motion for a preliminary hearing on the motion to stay.  The circuit court granted the motion to stay and subsequently reversed the Commission's order, stating that the Commission did not have "substantial evidence" before it to justify revoking Almeida's medical license.  The circuit court also found that the Commission's refusal to order the Board to produce written statements of the complaining witnesses taken by the Board's attorney deprived Almeida of due process of law.  The Commission appealed to the Court of Civil Appeals, which affirmed the circuit court's judgment, without an opinion.
HOLDING:  The Supreme Court reversed the Court of Civil Appeals. The Court held that the Commission's decision to revoke Almeida's license was supported by substantial evidence.  The Court also held that the Commission did not deny Almeida due process by failing to require the Board to produce written statements taken by the Board's attorney during the investigation of reports by those persons who had complained of Almeida's conduct and who ultimately filed complaints against him.)
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• General Motors Acceptance Corp. v. Massey,

No. 1030209 (Ala. May 14, 2004)
(class action; class certification; consideration of counterclaims and defenses; This action arises out of a class-action complaint filed on December 14, 1993 -- as amended on June 8, 1995 -- in which Donald Massey and Judy Jennings sued General Motors Acceptance Corporation ("General Motors"); Motors Insurance Corporation ("MIC"), a subsidiary of General Motors; and MIC Property and Casualty Corporation ("MICPAC"), a subsidiary of MIC (hereinafter collectively referred to as "GMAC") and alleged that General Motors had  improperly "force-placed" collateral protection insurance ("CPI") against their accounts with GMAC.  Massey and Jennings each executed a retail installment contract for the purchase of an automobile to be financed by General Motors.  Each contract provided for the placement by General Motors of CPI coverage in the event the buyer failed or refused to insure the financed vehicle.  Massey and Jennings failed to maintain physical damage insurance on their vehicles, and General Motors purchased CPI  for their vehicles.  General Motors paid MIC $771 for single-interest coverage on Jennings's vehicle, and added that amount, plus $190 in "finance charges," to the balance General Motors claimed under Jennings's retail installment contract.  Similarly, General Motors purchased CPI from MICPAC for Massey's vehicle.  The amount of insurance purchased in each case was based on the amount of the outstanding loan balance.  MIC and MICPAC, however, were obligated to pay claims based on the lesser of (1) the cost of repair, (2) the actual cash value of the vehicle, or (3) the outstanding loan balance.  Massey paid no portion of his CPI premium.  Subsequently, his vehicle was totally destroyed in an accident with a third party, and General Motors canceled the policy as of the accident date.  At Massey's request, General Motors took possession of the vehicle, and MICPAC paid General Motors $5,946.16, based on Massey's outstanding account balance.  General Motors applied the payment to Massey's account, leaving an alleged $635.70 deficiency, a portion of which was the unpaid CPI premium.  Massey and Jennings averred that GMAC "routinely overcharged [them] and [the putative] class members for [CPI]" in two ways.  First, they alleged that the CPI was merely "phantom insurance coverage."  Massey and Jennings averred that GMAC "charged them for additional insurance coverages which protected one or more of the defendants, but which provided no protection for the plaintiffs or class members."  They describe this "additional coverage" as a "kickback" to General Motors or MIC in the form of a "commission" or "administrative fee," which is never "credited to the account of the plaintiffs or class members."  They sought damages under various theories, including (1) breach of contract, (2) wrongful repossession, (3) breach of fiduciary duty, and (4) violation of Ala. Code §5-19-20 and certain "State Banking Regulations."  General Motors filed a "conditional" class-wide counterclaim, averring that "[a]fter any potential certification of this case as a class action, those potential class members will be in default and/or will have become in default of their individual payment obligations pursuant to the Retail Installment Sales Contract and/or Promissory Note that each one had signed and which contract and/or Promissory Note has been assigned to [General Motors]" and demanding "the principal sums owing by each of them to [General Motors], plus all accrued interest, plus attorney's fees and costs of this action."  General Motors also filed a counterclaim against Massey specifically, seeking recovery of the alleged deficiency of "$635.70, plus all accrued interest, plus attorney's fees and costs."  On September 15, 1995, the trial court certified a class consisting of all individuals who entered into credit agreements with General Motors, who have had CPI force placed against their accounts with General Motors, who were residents of Alabama at the time CPI was force placed and who were charged for force-placed insurance at any time between the date six years before the filing of the complaint and September 1, 1995.  On January 14, 2003, GMAC moved to decertify the class, arguing that since the date of certification, "class-action law in Alabama has undergone a metamorphosis," requiring a more "rigorous" and "demanding" analysis.  On October 8, 2003, the trial court -- without addressing the counterclaims or defenses -- amended the September 15, 1995, certification order.  GMAC appealed from that order."
HOLDING:  The Supreme Court vacated the class-certification order.  The Court noted that a class-certification order that does not consider compulsory counterclaims does not reflect a "rigorous analysis" of the Rule 23 factors.  The Court held that the trial court has no discretion to omit consideration -- and discussion -- of counterclaims and relevant defenses.  The Court directed the trial court on remand to analyze and address the counterclaims and defenses.)
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• Turner v. West Ridge Apartments, Inc.,

No. 1030441 (Ala. May 14, 2004)
(corporate law; right of first refusal; On July 28, 1993, Ralph Sanders, Earl Sanders, and John Turner executed and filed the articles of incorporation of West Ridge Apartments, Inc. ("West Ridge").  The articles of incorporation authorized the company to distribute 1,000 shares of stock valued at one dollar per share; however, the three incorporators elected to distribute only 300 shares and to divide those shares equally among themselves.  Thus, each incorporator received 100 shares of stock in West Ridge.  Seven years after incorporation, West Ridge adopted bylaws for the corporation; those bylaws provided, among other things, that an insurance policy would be issued on the life of each of the original incorporators and that one-half of the face value of each policy would be made payable to the insured's named beneficiary and one-half of the face value of the policy would be made payable to the corporation.  The bylaws also provided that the corporation would have the right of first refusal upon the sale or exchange of any shares of the stock of the corporation.  At the time of John Turner's death on August 21, 1995, Tivica Turner and West Ridge were the named co-beneficiaries on the insurance policy issued in accordance with West Ridge's bylaws.  Pursuant to the terms of the policy, the insurance company distributed one-half of the value of the policy to Tivica and one-half to West Ridge.  West Ridge filed an action asking for a declaration of its rights and those of Tivica under the bylaws.  Tivica filed an answer, and the case was set for a bench trial.  The trial court, after reciting that it had reviewed the pleadings, the memoranda of law, and the arguments of counsel, found that the previously effectuated equal division of the proceeds of the life insurance policy was appropriate.  The trial court also ordered Tivica, pursuant to the terms of the stock-option provision in the bylaws, to convey to West Ridge 100 shares of the capital stock issued in the name of her deceased father.  Tivica appealed the trial court's judgment, contending that the bylaws call for West Ridge to pay over its share of the proceeds of the life insurance on her father to her, as executrix, in exchange for the 100 shares of stock formerly held by her father and now an asset of his estate. Tivica avers that she is the sole heir of her father's estate; she appeals in her capacity as executrix of her father's estate.  West Ridge, thereafter, filed a motion to dismiss Tivica's appeal.  In the motion, West Ridge alleges that Tivica failed to meet her burden of ensuring that the record contained sufficient evidence to warrant a reversal, given that Tivica did not include in the record a transcript or a statement of the evidence in lieu of the transcript pursuant to Rule 10(d), Ala.R.App.P.  West Ridge contends that without that statement in lieu of a transcript the Supreme Court has no choice but to affirm the trial court's judgment.
HOLDING:  The Supreme Court reversed.  The Court denied the motion to dismiss the appeal, noting that the trial court did not hold a hearing at which ore tenus evidence was presented and from which a transcript or a statement in lieu of a transcript, as contemplated by Rule 10(d), could have been produced.  The Court concluded that because article 6, §2, is the only provision that addresses the right of first refusal and the death of a shareholder and because the parties do not contend that any other provision of the bylaws has any bearing on the determination of this issue, this provision exclusively defines West Ridge's rights.  The Court held that the unambiguous language of article 6, §2, plainly provides that West Ridge, upon electing to exercise its right of first refusal, must use its share of the proceeds from the insurance policy to retire the stock owned by the deceased or incapacitated shareholder.)
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• Knox v. Western World Ins. Co.,

No. 1030582 (Ala. May 14, 2004)
(insurance; declaratory judgment; whether a tort claimant may bring a claim for declaratory relief against a tortfeasor's liability insurance company before a final judgment determining the tortfeasor's liability has been entered in the case; Isaac Knox III and Timothy Kirk Bowman, an employee of Youngblood Trucking Company ("Youngblood Trucking"), were involved in a motor-vehicle accident on October 5, 2002.  At the time of the accident, Bowman was driving a vehicle owned by Youngblood Trucking.  As a result of the accident, Adrianne Knox, the sister of Isaac Knox III and a passenger in his car at the time of the accident, was killed.  Isaac Knox III suffered severe permanent and disabling injuries from the wreck.  Isaac Knox III and his father Isaac Knox, Jr., as the personal representative of the estate of Adrianne Knox, sued Bowman; Youngblood Trucking; Youngblood Coal Sales, LLC; and Hobart Randy Youngblood and Teresa Youngblood alleging negligence and wantonness.  The Knoxes also brought a claim alleging fraud and deceit against Youngblood Trucking, Hobart Randy Youngblood, and Teresa Youngblood; a breach-of-contract claim against Youngblood Trucking; and a negligent- or wanton-retention claim against Youngblood Coal Sales, LLC.  The Knoxes amended their complaint to add Western World Insurance Company ("Western World"), the insurance carrier for Youngblood Trucking, as a defendant and to seek a declaration of the rights and obligations of the parties with respect to "the nature, amount, and extent of liability insurance available from all liability carriers who have or may have coverage for any of the [claims alleged in the pending action]."  Western World filed a motion to dismiss the Knoxes' declaratory-judgment claim; the trial court granted that motion on September 25, 2003.  The Knoxes thereafter filed a motion to vacate the trial court's order dismissing the Knoxes' claim for declaratory relief against Western World.  On December 4, 2003, the Knoxes filed a "motion for severance of claims and for final judgment" in which they asked the trial court to "enter an order severing the plaintiffs' claims against [Western World]" and "to make the order denying plaintiffs' motion to vacate the judgment dismissing plaintiffs' complaint for declaratory relief final." In response, on December 11, 2003, the trial court denied the Knoxes' motion to vacate and severed the Knoxes' claim for declaratory relief.  The trial court stated in its December 11 order, "The order denying plaintiff's motion to vacate and dismissing the claim for declaratory relief against [Western World] is made final under Rule 54(b)."  This appeal followed.
HOLDING:  The Supreme Court affirmed.  The Court held that a tort claimant may not bring a claim for declaratory relief against a tortfeasor's liability insurance company before a final judgment determining the tortfeasor's liability has been entered in the case.  The Court held that Ala. Code §27-23-1 and §27-23-2, which provide that an insurer's liability does not become absolute until a loss occurs and preclude an injured party from bringing an action against an insurer before the injured party has recovered a final judgment against the insured.  The Court noted that, nevertheless, the Knoxes do have a right, pursuant to Rule 26(b)(2), Ala.R.Civ.P., to discover the existence and contents of the insurance contract between Youngblood Trucking and Western World.)
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• Ex parte McGhee,

No. 1030939 (Ala. May 14, 2004)
(The Supreme Court denied the petition for the writ of certiorari without opinion.  However, in denying the petition for the writ of certiorari, the Court stated that it does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion.)
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• Ex parte W.T.M.,

No. 1030983 (Ala. May 14, 2004)
(The Supreme Court denied the petition for the writ of certiorari without opinion.  However, in denying the petition for the writ of certiorari, the Court stated that it does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion.)
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Opinions Released May 7, 2004

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  MAY 7, 2004

 
• Alfa Life Ins. Corp. v. Jackson,

No. 1001854 & 1002002 (Ala. May 7, 2004)
(insurance; fraud; justifiable reliance; excessiveness of punitive damages; excessiveness of compensatory damages; mental anguish; ripeness; Between 1981 and 1992, Henry and Magnolia Jackson, a married couple, relied exclusively on Rickey English ("English"), an Alfa Life Insurance Corporation ("Alfa") agent, to advise them about insurance and to sell them the insurance they needed. Between 1981 and 1992, English sold the plaintiffs insurance on their lives, their automobiles, and their mobile home. Despite having a 10th-grade education, Henry Jackson cannot read. Although Magnolia Jackson has a high school education and an ability to read, she does not understand insurance policies.  Following the birth of the plaintiffs' younger daughter, Hillary, Magnolia Jackson went to English's office in October 1992 to inquire about life insurance on Hillary.  According to Magnolia,  English told her that he would sell her an insurance policy that would be paid up in fifteen years and that she would get a letter in the mail explaining about the fifteen year pay-up.  In fact, in October 1992, Alfa did not have any policies that would pay up in 15 years. Relying on English's representation that the new Alfa policies would pay up in 15 years, the plaintiffs took out new Alfa life insurance policies on their own lives and on their daughters' lives.  The schedule of benefits on page three of each policy listed the maturity date of each policy. The listed maturity dates were September 22, 2046, for the policy insuring the life of Henry Jackson;  October 19, 2050, for the policy insuring the life of Magnolia Jackson; October 19, 2073, for the policy insuring the life of Shantell Jackson; and October 19, 2087, for the policy insuring the life of Hillary Jackson. Magnolia Jackson did not know what "flexible premium adjustable life insurance" was. Each policy notified the plaintiffs of their right to cancel the policy within 10 days and to receive a refund of the initial premium they had paid on the policy.  Each policy also contained this provision:  "Entire Contract. This policy and the copy of the application attached to it is the entire contract. ..."  The plaintiffs paid premiums on all four of these policies. None of the new policies provided that payment of the specified premium for 15 years would pay up the policies. When Magnolia Jackson did not receive the expected letter from Alfa confirming that the policies would pay up in 15 years, she wrote a letter to Alfa. In pertinent part, the letter stated that English had told Magnolia Jackson when she took out the policies that "these policies would be paid up in 15 years."    In response, Alfa district manager Hardy Bryan met with the plaintiffs on August 10, 1995. Bryan told the plaintiffs that the four policies Alfa issued in 1992 would not pay up in 15 years. Further, Bryan told the plaintiffs that each of the four policies would lapse before the end of the estimated life span of the person whose life was insured by it unless the plaintiffs increased the amount of the premiums they were paying on each policy.   Alfa then moved to dismiss the claims against Alfa on the ground that the plaintiffs' putative dismissal of the claims against English with prejudice had foreclosed the plaintiffs from further prosecuting their claims against Alfa.  However, the trial court denied the Alfa motion to dismiss, and the claims against Alfa proceeded to trial. At the close of all the evidence, Alfa moved for a judgment as a matter of law. The trial court denied the motion and submitted the case to the jury.  The trial court entered an order on the case action summary dismissing the claims against English without prejudice the day after the trial.  The jury returned a general verdict awarding the plaintiffs $500,000 in compensatory damages and $5,000,000 in punitive damages. Alfa renewed its motion for a judgment as a matter of law, which the trial court had denied at the close of all the evidence, and moved, in the alternative, for a new trial or a remittitur. After conducting a BMW/Hammond/Green Oil hearing, the trial court denied Alfa a judgment as a matter of law, a new trial, or a remittitur of the compensatory-damages award. However, the trial court remitted the punitive-damages award from $5,000,000 to $1,500,000 to achieve a ratio of punitive damages to compensatory damages of three to one and allocated a portion of this reduced punitive-damages award to the Alabama Civil Justice Foundation, Consumer Protection Division.  Alfa appealed the denial of a judgment as a matter of law and the denial of a remittitur of the compensatory-damages award. Claiming that the trial court should have reduced the punitive-damages award to an amount less than $1,500,000, Alfa also appealed the remittitur of the punitive-damages award.   Claiming that the trial court should not have reduced the punitive-damages award, the plaintiffs cross-appeal the remittitur of the punitive-damages award. The plaintiffs also cross-appeal the allocation of a portion of the reduced punitive-damages award to the Alabama Civil Justice Foundation, Consumer Protection Division. 
HOLDING:  The Supreme Court concluded that the trial court correctly denied Alfa a judgment as a matter of law.  However, the Court concluded that the trial court erred in denying Alfa a remittitur of the compensatory-damages award, erred in not reducing the punitive-damages award enough to satisfy constitutional limits, and erred in allocating a portion of the punitive-damages award to the Alabama Civil Justice Foundation, Consumer Protection Division. Accordingly, the Court reverse the judgment insofar as it allocates a portion of the punitive-damages award to the Alabama Civil Justice Foundation, Consumer Protection Division, and, in all other respects, affirm the judgment on the condition that the plaintiffs accept a reduction of the compensatory-damages award to $100,000 and a reduction of the punitive-damages award to $300,000.  The Court distinguished this case from a "vanishing premium" case, explaining that the allegation that the insurance would be "paid up" was not an allegation of a "vanishing premium."  The Court stated that the absence of a dismissal with prejudice of the claims against English deprives Alfa of the main premise of its argument that it is entitled to judgment as a matter of law on the ground that the plaintiffs' putative dismissal with prejudice of the claims against English foreclosed the plaintiffs' claims against Alfa.   Given the plaintiffs' particular education, knowledge, and ability to read and to understand life insurance policies and given the plaintiffs' relationship of trust with English, the Court stated that it cannot hold, as a matter of law, that the plaintiffs "closed [their] eyes to avoid the discovery of the truth." )
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• Chapman v. Smith,

No. 1011863 (Ala. May 7, 2004)
(medical malpractice; expert testimony; applicable standard of care; Linda P. Smith sued Lucy Gravlee Chapman, M.D.; Anesthesiology & Pain Medicine, P.C.; and HealthSouth Medical Center, Inc. (hereinafter collectively referred to as "the appellants") alleging medical malpractice based on Dr. Chapman's allegedly negligent administration of a cervical epidural injection performed on July 20, 1994.  Linda's husband, Jimmy Joe Smith, also sued the appellants, stating a derivative claim of loss of consortium.  The case went to trial.  The Smiths presented the testimony of their daughter; they then attempted to present testimony of their two proffered expert witnesses, Dr. Pawan Grover and Dr. William Kendall.  The appellants objected to their testimony on the basis that neither Dr. Grover nor Dr. Kendall was qualified to testify at trial.  The trial court ruled that Dr. Pawan Grover is not qualified to testify as an expert in this case because he was not board-certified in anesthesiology in the year preceding the event which gives rise to the cause of action in this case.  The trial court granted the motion of the appellants that, as a matter of law, Dr. Kendall has not established the standard of care as to the use of fluoroscopy in cervical epidural steroid injections.  Thus, the trial court entered a judgment as a matter of law in favor of the appellants and against the Smiths.  The Smiths filed a motion to alter, amend, or vacate the trial court's judgment.  The trial court entered an order providing  that Dr. Pawan Grover met the criteria of Alabama Code §6-5-548(c) and, therefore, was a similarly situated health care provider competent to give expert testimony.  The trial court ruled that its failure to allow Dr. Pawan Grover to testify was fatal to the Smiths' claim.  Thus, the trial court granted the motion for new trial.
HOLDING:  The Supreme Court affirmed in part and reversed in part.  The Court held that the trial court acted within its discretion in ruling that Dr. Grover was qualified to testify against Dr. Chapman as to the standard of care that Dr. Chapman should have exercised in this case.  However, the Court held that the trial court exceeded its discretion in finding that Dr. Kendall was qualified to testify against Dr. Chapman concerning the applicable standard of care.  Therefore, the Supreme Court affirmed the trial court's order granting the Smiths' motion to alter, amend, or vacate its judgment and setting the case for a new trial insofar as it held that Dr. Grover was qualified to testify against Dr. Chapman, and the Court reversed the order insofar as it held that Dr. Kendall was qualified to testify against Dr. Chapman.  The Court remand the case for further proceedings.)
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• Ex parte Sawyer,

No. 1020888 (Ala. May 7, 2004)
(venue; forum non conveniens; The Lurleen B. Wallace Developmental Center ("the Wallace Center"), which is operated by the Department of Mental Health and Mental Retardation ("DMHMR") and located in Morgan County, provides long-term habilitation services and treatment for persons who suffer from mental retardation; it employs physicians and nurses to provide health-care services to those persons.  At the time of her death, Katie Robinson was a resident at the Wallace Center.   She suffered from eating disorders and required supervision while she ate and digested her food.  Those eating disorders included her willingness to eat anything, even if it was not edible or digestible (pica disorder), and her tendency to regurgitate her food, which often caused her to choke and necessitated assistance to clear her throat.  On August 20, 1999, Katie Robinson died after choking on her food.  J.C. Robinson ("Robinson"), as administrator of the estate of Katie Robinson, brought a wrongful-death action against Kathy Sawyer, the commissioner of the DMHMR, and others.  Although J.C. Robinson is not a resident of Montgomery County and none of the actions complained of in this case occurred in Montgomery County, Robinson filed the action in Montgomery County because Sawyer is a State officer who resides in Montgomery County.  The defendants moved on the basis of Ala. Code §6-5-546, a part of the Alabama Medical Liability Act of 1987, Ala. Code §6-5-540 et seq. ("AMLA"), or, in the alternative, on the basis of Ala. Code §6-3-21.1 the forum non conveniens statute, to transfer this action from Montgomery County to Morgan County, the county in which most of the incidents that allegedly led to Katie Robinson's death occurred and the county where all the defendants except Sawyer reside.  The trial court denied the motion.  The defendants petitioned the Supreme Court for a writ of mandamus directing the trial court to transfer the action to Morgan County. 
HOLDING: The Supreme Court granted the petition and issue the writ.  The Court held that the AMLA does not apply in the present case because the Wallace Center is not a "health care provider" as that term is defined in §6-5-542.  The Court held that the defendants have established the existence of an appropriate venue in Morgan County and have established that a transfer to that venue is necessary "for the convenience of parties and witnesses, or in the interest of justice."  Thus, the Court held that the trial court exceeded its discretion in denying the defendants' motion pursuant to §6-3-21.1 to transfer the case to Morgan County.)
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• Ex parte Sawyer,

No. 1021194 (Ala. May 7, 2004)
(venue; forum non conveniens; On August 8, 2000, Cynthia Ruth Shirley, a 55-year-old mentally retarded resident of the Lurleen B. Wallace Developmental Center ("the Wallace Center"), had an altercation with an employee of the Wallace Center.  During the altercation, she fell and struck her head on a metal table.  As a result of the fall, she suffered severe injuries to her brain.  The day after the fall, Shirley was transported to Huntsville Hospital in Madison County, where she died eight days later from a brain hemorrhage.  Laura Percer, as administratrix of the estate of Cynthia Ruth Shirley, brought a wrongful-death action against the Alabama Department of Mental Health and Mental Retardation ("DMHMR"); Kathy Sawyer, commissioner of DMHMR; James Finch, director of the Lurleen B. Wallace Developmental Center ("the Wallace Center"); and several fictitiously named defendants. Although Percer is not a resident of Montgomery County and none of the actions complained of in this case occurred in Montgomery County, Percer filed the action in Montgomery County because Sawyer is an officer of the State who resides in Montgomery County.  The defendants moved on the basis of Ala. Code §6-5-546, a part of the Alabama Medical Liability Act of 1987, Ala. Code §6-5-540 et seq. ("AMLA"), or, in the alternative, on the basis of Ala. Code §6-3-21.1, the forum non conveniens statute, to transfer this action from Montgomery County to Morgan County, the county in which most of the incidents that allegedly led to Shirley's death occurred and the county in which all of the defendants except Sawyer reside.  The trial court denied the motion.  The defendants petition this Court for a writ of mandamus directing the trial court to transfer the action to Morgan County.
HOLDING:  On the basis ofEx parte Sawyer, No. 1020888 (Ala. May 7, 2004) (summarized above), the Supreme Court granted the petition and issued the writ.)
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• DaimlerChrysler Corp. v. Morrow,

No. 1021866 & 1021977 (Ala. May 7, 2004) 
(breach of express and implied warranties; fraudulent suppression;  This dispute arose following David Morrow's purchase from Akin Ford/ Chrysler, Inc. of Winder, Georgia ("Akin"), of a Dodge Ram 3500 pickup truck ("the truck") manufactured by DaimlerChrysler Corporation ("Chrysler").  Morrow purchased the truck on March 27, 1997, for use in his "less than truckload freight" business.  Specifically, that business involved the hauling of commercial signs on a trailer that was to be pulled by the truck.  Morrow had several trailers, ranging in length from 16 feet to approximately 40 feet.  When he purchased the truck, Morrow received a written warranty from Chrysler.  The warranty provided, in pertinent part, that it "cover[ed] the cost of all parts and labor needed to repair any defective item on [the] truck -- that is, defective in material, workmanship, or factory preparation."  The warranty began when Morrow took delivery of the truck and expired at 36 months or 36,000 miles, whichever occurred first.  In early May 1997, Morrow began noticing that the truck exhibited a bucking and jerking sensation when you were driving around 55 miles per hour.  According to Morrow, the problem was "intermittent," and occurred only when he was pulling his approximately 40-foot trailer.  On June 17, 1997, after he had driven the truck 18,331 miles, Morrow took it to Akin, complaining of the jerking and bucking.  Akin was not able to fix the problem on that occasion.  Before he had driven the truck 36,000 miles and within the three-year warranty period, Morrow again contacted Akin, because the truck continued to buck and jerk.  In an attempt to resolve the problem, Akin offered to replace the truck with a new truck covered by a new warranty.  However, Morrow rejected that offer, because, as he put it, there was "no guarantee that a new Dodge truck would not do the same thing as the one [he] already owned."  Morrow continued to use the truck in his business until approximately April 1998.  By that time, the truck had been driven more than 100,000 miles.  He then began to rent a tractor-trailer rig to use in his sign-hauling business.  Subsequently, Morrow used the truck on two or three additional business trips; he primarily used the truck as his personal vehicle.  By March 2003, when the case was tried, Morrow had driven the truck approximately 248,000 miles.  On October 27, 1998, Morrow sued Chrysler and Akin.  Morrow's complaint included a claim against Chrysler alleging  a breach of express warranty, a claim against Akin alleging a breach of an implied warranty of merchantability, and a claim against both Chrysler and Akin alleging fraudulent suppression.  Also, Morrow sought attorney fees under § 8-20-8, Ala. Code 1975, a part of the Motor Vehicle Franchise Act, § 8-20-1 et seq, Ala. Code 1975 ("the Act").  After considerable discovery, Chrysler and Akin filed a motion for a summary judgment, which the trial court granted with respect to Morrow's fraudulent-suppression claim.  Ultimately, the case was tried before a jury.  Chrysler and Akin timely filed a motion for a judgment as a matter of law ("JML"), which the trial court denied.  The case was submitted to the jury on Morrow's claims that Chrysler had breached its express warranty and that Akin had breached the implied warranty of merchantability.  The jury returned a general verdict in the amount of $93,500 against Chrysler and Akin.  After Chrysler and Akin renewed their motion for a JML and, alternatively, moved for a new trial.  Also, Morrow moved for an award of attorney fees under the Act.  On June 27, 2003, the trial court denied Chrysler and Akin's post judgment motions and granted Morrow's motion, awarding $120,540 in attorney fees.  Chrysler and Akin appealed, and Morrow cross-appealed.  Chrysler and Akin contend the trial court erred in denying their motion for a JML made after the return of the verdict.  Morrow contends the trial court erred in entering a summary judgment for Chrysler and Akin with respect to his fraudulent-suppression claim.
HOLDING:  The Supreme Court affirmed in part and reversed in part.  The Court held that Morrow's extensive use of the truck since its delivery precludes Morrow's claim that the truck was not fit for the ordinary purposes for which such trucks are used.  Therefore, the Court held that the trial court erred in denying Akin's renewed motion for a JML with respect to Morrow's breach-of-implied-warranty claim.  The Court held that that Chrysler's express warranty did not fail of its essential purpose, because it is undisputed that Chrysler, within a few months after the jerking and bucking began, and before the truck had been driven 36,000 miles, offered to replace the truck with a new truck covered by a new warranty, an offer that Morrow rejected.  Thus, the Court reversed the judgment in favor of Morrow and against Chrysler and Akin.  With regard to the fraudulent-suppression claim, the Court held that Morrow failed to demonstrate that Chrysler and Akin had a duty to disclose certain similar problems that had occurred in other Dodge Ram trucks like his.  Thus, the Court affirmed the summary judgment in favor of Chrysler and Akin on the fraudulent-suppression claim.)
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• Ex parte State of Alabama (In re: Cockrell v. State),

No. 1021997 (Ala. May 7, 2004) 
(criminal; attempted murder; transferred intent; Following a previous disagreement over the theft of some money from Carlos Ivey's car, Christopher Cockrell was seen hiding in some bushes next to the neighborhood grocery store. Ivey pulled up in his car to a stop sign close to the store.  Cockrell, following Ivey's car, ran from the bushes down the street.  Cockrell fired several shots into Ivey's car.  One of the shots struck 12-year-old Jerome Fails, who was standing on his grandmother's front porch eating a sucker, in the head.  Although Jerome survived, he suffered severe brain damage and [is] unable to move or talk. Cockrell was charged with the attempted murder of Jerome Fails, the unintended victim.  Cockrell was not charged with the attempted murder of Carlos Ivey, the intended victim.  The jury found Cockrell guilty of attempted murder, and the trial court sentenced Cockrell to life imprisonment. Cockrell appealed his conviction to the Court of Criminal Appeals.  The Court of Criminal Appeals reversed Cockrell's conviction, holding that there was insufficient evidence to support a conviction of attempted murder as to Fails because there was no evidence indicating that Cockrell intended to murder Fails.  The Court of Criminal Appeals rejected the State's argument that the doctrine of transferred intent applied to Cockrell's case; that court stated that the doctrine was usually reserved for crimes of general, as opposed to specific, intent, e.g., assault.  According to the Court of Criminal Appeals, attempted murder is a specific-intent crime, and a conviction for attempted murder cannot be obtained unless the accused intended to murder the person who was actually harmed.  The Court of Criminal Appeals remanded the case to the trial court for that court to sentence Cockrell for the offense of first-degree assault with a deadly weapon, a lesser offense included within the offense of attempted murder.
HOLDING:  The Supreme Court affirmed the Court of Criminal Appeals' reversal of the trial court.  The Court noted that Cockrell does not dispute that the doctrine of transferred intent applies to a murder charge.  Cockrell concedes that he intended to murder Ivey.  However, the issue to be decided is whether the doctrine of transferred intent is applicable to an attempted-murder charge.  The Court concluded that the statute defining "attempt" does not clearly evince a legislative intent to apply the doctrine of transferred intent -- applicable only to the completed crime of murder -- to punish as attempted murder the consequences of an unintended, nonfatal result.  The Court noted that to hold otherwise would be to rewrite the attempt statute so as to imbue an attempt with not only the intent to commit the specific offense attempted, but also  such other intent as would be imputed to a defendant by operation of law only upon consummation of the offense solely by reason of harboring the specific intent necessary to commit such offense.  Likewise, the Court noted that a contrary holding would ignore the fact that an attempt is complete upon the doing of "any overt act towards the commission of the offense," an act that of necessity always precedes the event required to bring into play the doctrine of transferred intent -- the death of an innocent bystander.)
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• Smith v. AmSouth Bank, Inc.,

No. 1022090 (Ala. May 7, 2004) (plurality opinion) 
(banking; negligence; Melvin Smith is a wholesale automotive dealer doing business out of his home in Wilsonville.  He incorporated "Specialty Motor Cars, Inc." in 1976, but dissolved the corporation in 1980.  He never re-incorporated, nor did he register "Specialty Motor Cars" as a tradename with the Alabama Secretary of State.  However, Smith resumed his wholesale automotive operation under the name "Specialty Motor Cars."  He conducts business solely with automobile dealers, not with the general public.  In December 1998, Smith hired Chuck Utsey to buy and sell vehicles on Smith's behalf.  The agreement between Smith and Utsey worked as follows.  Utsey was to locate vehicles for Smith to purchase; Smith would then approve the purchase and provide Utsey with the funds to purchase the vehicle from an account at SouthTrust Bank ("Smith's SouthTrust account").  After purchasing the vehicle, Utsey would obtain a bill of sale in the name of "Specialty Motor Cars," take possession of the vehicle, and sell the vehicle once he found a purchaser.  Utsey was given the authority to receive, endorse, and deposit checks in Smith's SouthTrust account on behalf of "Specialty Motor Cars."  On September 1, 1999, Utsey, his wife, and his lawyer formed JCU, Inc. ("JCU").  Smith had no knowledge that Utsey had formed that corporation.  In early September 1999, Utsey opened a corporate checking account at a Selma branch of AmSouth Bank in the name of "JCU, Inc. d/b/a Specialty Motor Cars."  To document the validity of the account, Utsey presented AmSouth with the articles of incorporation of JCU, an occupational license in the joint names of "JCU, Inc." and "Specialty Motor Cars," and the corporate name registration for "JCU, Inc."  AmSouth provides its employees with "The Platform Edge Manual," a guide to various banking functions, including opening new accounts.  The manual includes articles of incorporation among the acceptable forms of identification for opening a new account.  It lists occupational licenses and corporate name registrations as unacceptable forms of identification for that purpose.  When Utsey opened the corporate checking account, AmSouth completed an "Account Package" form, upon which was printed the following requirement:  "If this account is a corporation or an organization account, it is agreed that the Certified copy of Resolution of the Board of Directors shall be a part of the applicable customer agreement for the account noted below."  Utsey did not have a certified copy of a resolution, yet AmSouth nevertheless opened the account.  After he opened the account at AmSouth, Utsey occasionally deposited checks made out to "Specialty Motor Cars" in his AmSouth account rather than in Smith's SouthTrust account.  AmSouth tellers would sometimes give Utsey cash back when he made these deposits.  Over time, Smith's debt in his SouthTrust line of credit grew to approximately $266,000, and Smith realized that Utsey had been appropriating Smith's funds to his own use.  On January 22, 2001, Smith sued Utsey, JCU, and AmSouth.  Against Utsey and JCU, he alleged that they converted his funds; against AmSouth, Smith made three claims: that AmSouth negligently opened the account, that it negligently accepted checks presented by Utsey, and that it converted Smith's funds.  All parties filed answers denying liability.  However, Utsey and JCU never responded to any further motions or pleadings.  Consequently, the trial court entered a partial summary judgment in favor of Smith with respect to his claims against Utsey and JCU.  AmSouth filed a motion for a summary judgment as to Smith's complaint.  The trial court entered a summary judgment in favor of AmSouth on all counts.  Smith appealed.
HOLDING:  The Supreme Court affirmed.  The plurality opinion held that AmSouth owed no duty to protect Smith from wrongful acts committed by Utsey.  The plurality opinion held that Smith had no relationship with AmSouth Bank, in either his individual or his professional capacity.  The plurality opinion also held that Smith failed to present substantial evidence of foreseeability, the focus of the traditional special-circumstances test.  The plurality opinion further found that Smith entrusted Utsey with sufficient responsibility to place this situation within the purview of Ala. Code §7-3-405(b).  However, the plurality opinion concluded that Smith has failed to produce substantial evidence indicating that AmSouth violated its duty to act in a commercially reasonable manner when it accepted certain checks from Utsey for deposit.)
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• Alabama Envtl. Council, Inc. v. Alabama Public Serv. Comm'n,

No. 1030046 (Ala. May 7, 2004)
(appellate jurisdiction; utility rates; standing to appeal; Alabama Power Company ("Alabama Power") filed a proposed residential rate rider ("Rate Rider RE") with the Alabama Public Service Commission ("the Commission"), pursuant to Ala. Code §37-1-81(a).  The proposed Rate Rider RE gives residential customers of Alabama Power the option of paying an additional amount on their bills, which amount will be used to purchase renewable energy, defined in Rate Rider RE as energy from "sources such as biomass, landfill methane, solar, wind and hydro."  Subsequently, the Commission established Informal Docket No. U-4485 to consider Rate Rider RE.  Southern Alliance for Clean Energy, Inc. ("SACE"), filed a petition to intervene in Informal Docket No. U-4485, asserting that SACE had members who are Alabama Power customers and who would be among the most likely of Alabama Power's customers to pay the additional amount to be used to purchase energy through Rate Rider RE.  Alabama Power filed an objection to SACE's petition.  The legal division of the Commission prepared a memorandum dated May 2, 2003, addressed to the commissioners and directors of the Commission recommending that the commissioners approve Rate Rider RE and deny SACE's petition to intervene on the ground that, among other things, SACE lacked standing to intervene.  The attorney general requested that the Commission "issue a procedural schedule for interested persons and entities to participate in the decision of when an entity is 'affected' by a Public Service Commission order," out of a concern that the Commission's decision regarding the issue of standing would  have some precedential importance.  The Commission met and unanimously voted to accept the recommendation of its legal division to approve the proposed Rate Rider RE and to deny SACE's petition to intervene.  That same day, Alabama Environmental Council, Inc. ("AEC"), filed a petition to intervene.  The Commission entered an order (1) approving Rate Rider RE, (2) denying SACE's petition to intervene, (3) denying AEC's petition to intervene on the basis that the petition was untimely, and (4) granting the attorney general's petition to intervene, stating that the Commission would establish a separate proceeding addressing the Commission's interpretation and implementation of Ala. Code §37-1-87, which allows intervention only by entities "affected" by a proceeding before the Commission.  In its order, the Commission ruled, with regard to SACE's and AEC's petitions to intervene: (1) that SACE did not demonstrate that it or its members would be "affected" -- as that term is used in Ala. Code §37-1-87 -- by the Commission's order concerning Rate Rider RE, and (2) that AEC's petition to intervene was untimely.  SACE and AEC appealed the denial of their petitions to intervene.
HOLDING:  The Supreme Court dismissed the appeal because it held that SACE and AEC are neither "parties" nor "intervenors" under Ala. Code §37-1-141 and thus lack standing to appeal. 
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• Packaging Acquisition Corp. v. Hicks,

No. 1030148 (Ala. May 7, 2004)
(standing; Packaging Acquisition Corporation ("PAC"), a Georgia corporation engaged in the business of flexible packaging, purchased the sellers' business, AMPAC, Inc., also engaged in flexible packaging, and the assets of the business.  The sellers and two acquisition companies, Printmasters Acquisition Corporation and AMPAC Acquisition Corporation, executed the purchase agreement.  PAC was the sole shareholder in both acquisition companies.  PAC was not a signatory to the purchase agreement; however, the indemnity clause in Article 14 of the agreement provided that the sellers would hold harmless the purchasers and its officers, directors, shareholders, employees, and agents from all losses.  After the purchase was completed, PAC combined some of the assets of the sellers' business with its own to form another business, PacOne, Inc.  The acquisition companies eventually defaulted on their obligations to the sellers, and shortly after the default, the acquisition companies and PacOne filed a petition in bankruptcy.  The sellers sued PAC, alleging that PAC had committed several torts, including misrepresentation of material facts;  interference with an existing business; breach of contract; and breach of fiduciary duties.  PAC filed a counterclaim against the sellers alleging breach of a warranty as to the purchase agreement and a misrepresentation of material facts by the sellers to the acquisition companies.  The sellers filed a motion to dismiss PAC's counterclaim in which they argued that PAC did not have standing to assert the counterclaim because PAC no longer held shareholder status of the acquisition companies, which were bankrupt.   PAC argued that it was not asserting its counterclaim by virtue of its status as a shareholder, but for its own personal losses as a third-party beneficiary under the purchase agreement between the sellers and the acquisition companies.  The trial court dismissed PAC's counterclaim, with prejudice, on the basis that PAC lacked standing to assert it.  The trial court reasoned that PAC's status as a shareholder in the acquisition companies was extinguished through the bankruptcy proceedings.  The trial court entered an order pursuant to Rule 54(b), Ala.R.Civ.P., certifying as final its order dismissing PAC's counterclaim for lack of standing. PAC appeals.  In addition to the issue of the propriety of the dismissal of the counterclaim, PAC also challenged on appeal the trial court's ruling on the issue of the enforceability of the forum-selection clause contained in the purchase agreement.
HOLDING;  The Supreme Court reversed.  First, the Court held that the issue concerning the forum-selection clause was not before it because the trial court did not certify its ruling on the forum-selection-clause issue as final pursuant to Rule 54(b).  The Court further held that although PAC lost its status as a shareholder of the acquisition companies when those companies were declared bankrupt, it did not lose its standing to sue the sellers as a third-party beneficiary under the purchase agreement.)
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• Ex parte State of Alabama (In re: Pruitt v. State),

No. 1030328 (Ala. May 7, 2004)
(criminal; driving under the influence; waiver; felony; indictment; was indicted for two counts of driving under the influence ("DUI").  Count one of the indictment charged Pruitt with the offense of  "unlawfully operat[ing] a motor vehicle on a public street or road in Sumter County, to-wit: County Road 13 while under the influence of alcohol and having been convicted of three prior offenses of driving under the influence, in violation of [§] 32-5A-191(a)(2) of the Code of Alabama."  The second count of the indictment charged Pruitt with the offense  of having "unlawfully operate[d] a motor vehicle on a public street or road in Sumter County, to-wit: County Road 13 while there was 0.08% or more of alcohol by weight in his blood, in violation of [§] 32-5A-191(a)(1) of the Code of Alabama."  During Pruitt's jury trial, the prosecutor stated that he was "electing to proceed under the .08 charge that [Pruitt] was charged with in the alternative."  The State admitted into evidence during the course of the trial Pruitt's three prior DUI convictions, and Pruitt did not object to the admission of that evidence..  The jury convicted Pruitt of DUI as charged in count two of the indictment, and the trial court sentenced him as a felon to one year and a day based upon his three prior DUI convictions.  The sentence was subject to suspension after Pruitt served 90 days in jail.  Pruitt was also ordered to attend a class for DUI offenders and to bear the costs of the class and the court costs.  Pruitt appealed his conviction to the Court of Criminal Appeals.  The Court of Criminal Appeals held that because count two of the indictment contained no reference to Ala. Code §32-5A-191(h), which makes a fourth or subsequent conviction for DUI a felony and because Pruitt was not on notice that he was being charged with a felony, the trial court could not have convicted him of felony DUI.  Thus, the Court of Criminal Appeals remanded the case for the trial court to vacate Pruitt's conviction for felony DUI and to adjudge him guilty of a misdemeanor DUI in accordance with count two of the indictment.
HOLDING:  The Supreme Court reversed the Court of Criminal Appeals.  The Court held that the indictment gave Pruitt appropriate notice that he was being charged with a violation of §32-5A-191(a)(1).  The Court held that Pruitt waived his right to object on appeal to the application of the enhancement statute to his case because he did not object at trial.)
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• Ex parte Barrows,

No. 1030359 (Ala. May 7, 2004)
(filing of pleadings; circuit court jurisdiction over a will contest; Jamie Kay Shields Barrows, as executrix of the will of James Edward Shields, petitioned the St. Clair Probate Court to probate James Edward Shields's will.  On February 10, 2003, the probate court admitted the will to probate and issued letters testamentary to Barrows.  On July 30, 2003,  James Shields, Jr. ("Shields Jr.") filed a complaint in the probate court, contesting the will.  On July 31, 2003, the probate court, ex mero motu, transferred the will contest to the circuit court.  On July 31, 2003, pursuant to the probate court's order, the chief clerk of the probate court filed the will-contest complaint and a copy of the probate court's transfer order with the circuit court clerk.  On August 4, 2003, counsel for Shields Jr. filed in the circuit court a copy of the will-contest complaint that had been filed in the probate court.  The word "probate" was marked out and the word "circuit" was inserted in its place in the style.  Counsel also submitted with the complaint a circuit court cover sheet.  The circuit court docket fee for the filing of the complaint was not submitted until August 11, 2003.  Barrows moved to dismiss the will contest filed by Shields Jr.  The circuit court denied that motion.  Barrows petitioned the Supreme Court for a writ of mandamus directing the circuit court to set aside its order denying the motion to dismiss on the basis that the circuit court never acquired jurisdiction over the will contest.
HOLDING:  The Supreme Court denied the petition for writ of mandamus.  The Court held that the filing in the circuit court of a copy of the will-contest complaint filed in the probate court with the word "probate" marked out and the word "circuit" inserted in its place in the style and a circuit court cover sheet constituted an independent filing in the circuit court of the documents originally filed in and transferred from the probate court.  Therefore, the Court held that he properly invoked the limited jurisdiction of the circuit court to entertain the will contest.  The Court held that because August 10, 2003, was a Sunday, the filing fee was filed timely on Monday, August 11, 2003, within six months after the will had been admitted to probate.)
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• Ex parte Blankenship,

No. 1030484 (Ala. May 7, 2004)
(immunity; Lavone P. Higginbotham, individually and as the personal representative of the estate of Charles E. Higginbotham, deceased, sued Talladega County Deputy Sheriff Jason Lowell Blankenship and the Talladega County Commission ("the County") seeking damages for personal injuries arising out of an automobile accident involving a vehicle driven by Charles E. Higginbotham and a vehicle driven by Deputy Blankenship.   The complaint alleged that "Defendant, Jason Lowell Blankenship, is ... a Deputy Sheriff with the Talladega County Sheriff's Department" and that at the time of the accident he was "performing his duties as a Deputy Sheriff."  Deputy Blankenship and the County filed a joint motion to dismiss on the ground, among others, that they were "entitled to absolute immunity."  The trial court denied the motion.    Deputy Blankenship petitioned the Supreme Court for a writ of mandamus directing the Talladega Circuit Court to dismiss the action.
HOLDING:  The Supreme Court granted the petition.  The Court held that because it is alleged in the complaint and admitted in the answer that Deputy Blankenship was acting in the line and scope of his duties at the time of the accident, Deputy Blankenship is entitled to immunity under Article I, § 14 of the Alabama Constitution.  The Court declined the invitation by Higginbotham to disregard the allegation that Deputy Blankenship was performing his duties as a Deputy Sheriff' at the time of the accident.)
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Opinions Released April 30, 2004

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  APRIL 30, 2004

 
• Hunt Petroleum Corp. v. State of Alabama,

No. 1011762 (Ala. Apr. 30, 2004)
(fraud; reliance; punitive damages; royalties from gas lease; In 1984, Exxon Corporation and Hunt Petroleum Corporation entered into a joint venture to extract gas and gas byproducts ("gas") from Mobile Bay.  In that same year, Exxon and Hunt entered into a lease agreement with the State, pursuant to which they leased the oil-and-gas rights to certain sections of Mobile Bay.  In consideration for the right to extract and sell the gas, Exxon and Hunt made an initial payment to the State of Alabama of more than $52 million and also agreed to pay certain royalties based on the amount of gas successfully produced by drilling wells in Mobile Bay.  The relevant provision of the lease agreement provides that "[Hunt] agrees to pay [the State], during the time hereof, the following royalties:  (a) The value of ... 25% of the gross proceeds from oil, distillate, condensate, gas, natural gasoline or other product covered by the lease, produced and sold from the leased area at the price received therefor or at the best price realizable in the exercise of reasonable diligence, whichever is higher ...."  Hunt and the State dispute the proper point in the extraction process at which the gas should have been valued, that is, the point at which "gross proceeds" should have been calculated; this litigation is the result of that dispute.  Hunt interpreted the lease agreement to obligate it to pay royalties based on the value of the gas at the point of extraction, that is, at the wellhead.  This interpretation of the lease agreement allowed Hunt to deduct from the sale price of the gas (1) the costs it incurred in transporting the gas to an onshore treatment plant, (2) the costs of transforming the gas at the treatment plant into a commercially salable product, and (3) the costs of transporting the transformed gas from the treatment plant (the point at which the gas leaves the treatment plant is referred to as "the tailgate") to a pipeline for final sale.  The State agreed that Hunt could deduct from the sale price the cost of transporting the gas from the treatment plant to the pipeline for final sale, but disputed the deductions Hunt took (1) for transporting the gas from the wellhead to the treatment plant and (2) for transforming the gas into its final form.  Thus, the State took the position that royalties were due on the value of the gas "at the tailgate."  Hunt acted in accordance with its interpretation of the lease agreement and, each month, reported royalties to the State based on the value of the gas produced "at the wellhead."  Hunt thus took the position that the term "gross proceeds" as used in the lease agreement means revenue not only net of the costs of transporting the gas from the tailgate to a pipeline for final sale, but also net of the transportation costs from the wellhead to the treatment plant and the costs of treating the gas.  Thus, the contract question presented was what was deducted from the "gross proceeds" as that term was used in the lease agreement.  Before trial, the State moved for a partial summary judgment on the breach-of-contract claim.  The trial court granted the motion and adjudged Hunt liable for breach of contract.  Therefore, the State's interpretation of the lease agreement had been established as the correct interpretation and that issue was not before the jury.  At trial, the State pursued its fraud claim against Hunt.  The State argued that Hunt had sent it over 100 monthly reports in which Hunt misrepresented the amount of the royalties Hunt owed the State on the gas it had extracted from its wells in Mobile Bay.  The State argued that each of those monthly royalty reports fraudulently misrepresented that "net proceeds" were "gross proceeds" under the lease agreement and that the State was therefore entitled not only to damages for breach of contract, but also to damages for fraud.  The jury returned a verdict in favor of the State and against Hunt and awarded the State $3,403,200 in compensatory damages and $20,000,000 in punitive damages.  Hunt moved the trial court for a JML, or, in the alternative, for a remittitur.  The trial court denied Hunt's motions; Hunt appealed.
HOLDING:  The Supreme Court reversed.  The Court held that the State failed to meet its burden of proving by substantial evidence that the State relied on Hunt's alleged misrepresentations.  The Court concluded that the fact that the State always planned to audit Hunt indicates that the State did not simply "assume" that the royalty reports were correct.  Further, the Court stated that even if it were to accept the State's argument that it "assumed" that the monthly royalty reports generated by Hunt were correct, that assumption does not constitute legal reliance, because the plaintiff must prove not only that it relied on the representation, but also that it acted upon that reliance.  The Court found that the State failed to present any evidence, much less substantial evidence, indicating that the State would have done anything other than "adopt[] the same course" had the monthly reports generated by Hunt actually comported with the State's interpretation of the lease agreement.)
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• Corporate Waste Alternatives, Inc. v. McLane Cumberland, Inc.,

No. 1021825 (Ala. Apr. 30, 2004)
(personal jurisdiction; Corporate Waste Alternatives, Inc. ("CWA")), an Alabama corporation headquartered in Fairhope, contracts with other businesses to help those businesses reduce their waste-management expenses.  McLane Cumberland, Inc. ("Cumberland") is a division of McLane Midwest, Inc., a Texas corporation.  McLane's principal place of business is in Illinois; Cumberland's principal place of business is in Nicholasville, Kentucky, where it operates a grocery distribution center that services customers in Kentucky, Michigan, Ohio, Pennsylvania, Indiana, and Tennessee.  Sometime before September 10, 1999, CWA's president, Kahley Malloy, contacted Cumberland's corporate officers in Kentucky to see if Cumberland would be interested in using CWA's services.  CWA and Cumberland reached an agreement and, on September 10, 1999, Gary Ratzliff, Cumberland's vice president of distribution, signed a contract pursuant to which CWA agreed to help reduce the expenses for waste-management at Cumberland's distribution center in Kentucky.  In return, Cumberland agreed to pay CWA 50% of the savings it realized as a result of CWA's services.  The initial term of the contract was 60 months, but Cumberland had the right to terminate the contract upon giving CWA 60 days' written notice.  The contract stipulated that in the event of such a termination Cumberland would continue to pay fees for services rendered by CWA before the date of the termination for up to an additional 60 months.  After signing the contract in Kentucky, Cumberland faxed it to Alabama, where Malloy signed it on behalf of CWA.  The contract contained a choice-of-law provision stating that the contract was governed by Alabama law.  Thereafter, CWA engaged in the work of reducing Cumberland's expenses associated with recycling, transporting, and disposing of waste at Cumberland's distribution center in Kentucky.  Although CWA did much of the work on-site in Kentucky, Cumberland officials also made multiple telephone calls to CWA in Alabama to discuss the work.  As a result of CWA's efforts, Cumberland realized savings in its waste-management expenses and, pursuant to the contract, transmitted payments to CWA in Alabama.  On March 6, 2001, Cumberland terminated its contract with CWA and, in its termination letter, stated its position that it had no further obligation to pay fees to CWA after that date.  CWA responded that, under the contract, Cumberland was obligated to continue paying CWA for savings it realized in its waste-management expenses as a result of work completed by CWA before the termination date.  Cumberland refused to make any further payments after the termination date, and CWA sued Cumberland in the Baldwin County Circuit Court, alleging breach of contract.  Cumberland moved the trial court to dismiss CWA's action for lack of personal jurisdiction, and, after a hearing, the trial court granted the motion.
HOLDING:  The Supreme Court reversed.  The Court held that Cumberland should have foreseen,  when it entered into the contract with CWA, that it could be haled into court in Alabama.  The Court further concluded that Cumberland's faxing of the signed contract to CWA in Alabama, and from that date until Cumberland terminated the contract on March 6, 2001, making multiple telephone calls and mailing multiple payments to CWA in Alabama, constitute sufficient minimum contacts to supply an Alabama court with specific jurisdiction over Cumberland.)
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• Chicago Title Ins. Co. v. American Guar. & Liability Ins. Co.,

No. 1022001 (Ala. Apr. 30, 2004)
(insurance; necessary party; Ala. Code §27-23-2; Chicago Title Insurance Company ("Chicago Title") sued Lamar Ham, an attorney, seeking damages allegedly resulting from Ham's  failure to disburse funds properly in real estate transactions in which Chicago Title had issued financial guarantees to the lenders.  Before that action against Ham was filed, American Guarantee and Liability Insurance Company ("American Guarantee") had issued a professional liability insurance policy to Ham, providing coverage for claims arising out of Ham's "rendering or failing to render legal services for others."  A judgment was entered in favor of Chicago Title and against Ham in the amount of $856,897.04.  That judgment has not been satisfied.  Chicago Title filed this action against American Guarantee pursuant to Ala. Code §27-23-2, seeking "to have the insurance proceeds provided for in Ham's insurance policy with American [Guarantee] applied to the satisfaction of [Chicago Title's] judgment against Ham."  Chicago Title's complaint did not name Ham as a defendant.  After American Guarantee answered the complaint and after it filed a motion for a summary judgment, Ham filed a motion to intervene, accompanied by a proposed complaint against American Guarantee.  American Guarantee objected to Ham's motion to intervene, stating that Ham's interests are already adequately represented by Chicago Title.  The trial court denied Ham's motion to intervene. Subsequently, the trial court granted American Guarantee's summary-judgment motion, and Chicago Title appealed.
HOLDING:  The Supreme Court reversed.  The Court noted that, although Chicago Title brought this action against only American Guarantee and although American Guarantee, in its pleadings, never raised the issue of Chicago Title's failure to include Ham and actually opposed his intervention, the Court is entitled to raise the absence of a necessary party ex mero motu.  The Court held that where, as was the case here, the judgment creditor fails to join the insured as a party to an action brought under §27-23-2, it must reverse the judgment of the trial court and remand the cause for further proceedings consistent with its opinion.)
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• Henson v. HealthSouth Med. Ctr., Inc.,

No. 1022064 (Ala. Apr. 30, 2004)
(taxpayer standing; tax abatements; Tax Incentive Reform Act of 1992; HealthSouth Medical Center, Inc. ("HealthSouth") , a Delaware corporation, owns and operates hospitals in Alabama; several of these hospitals are in Birmingham.  In 2001, HealthSouth proposed to close one of its Birmingham hospitals and construct a new hospital at another location in the City.  HealthSouth applied to the Industrial Development Board of the City of Birmingham ("the Board") for a tax abatement pursuant to the Tax Incentive Reform Act of 1992, Ala. Code §40-9B-1 et seq. ("TIRA").  The Board granted HealthSouth a tax abatement the total value of which was $30,390,000.  Henson, a taxpayer, sued HealthSouth, the Board, and the City of Birmingham, alleging that the tax abatement had been wrongly granted and requesting that the tax abatement be declared void.  HealthSouth filed a motion to dismiss Henson's action for failure to state a claim upon which relief can be granted.  The Board and the City joined in the motion, arguing that Henson did not have standing as a taxpayer to challenge the tax abatement.  The trial court granted the motions and dismissed Henson's action against HealthSouth, the Board, and the City.  The trial court reasoned that although a taxpayer has the right to challenge an expenditure of State funds as unconstitutional, a taxpayer cannot sue the State and another taxpayer to collect taxes the other taxpayer allegedly owes the State.  Henson appealed.
HOLDING:  The Supreme Court reversed.  (1) The Court held that the rule of Doremus v. Business Council of Alabama Workers' Compensation Self-Insurers Fund, 686 So. 2d 252 (Ala. 1996), rejecting standing when one taxpayer seeks to compel another taxpayer to pay taxes that the taxing authority has not collected, does not apply to this proceeding, because Henson is not arguing that HealthSouth owes outstanding taxes that the State refuses to collect but is, instead, arguing that HealthSouth has been granted an unlawful tax abatement and is seeking to have the abatement declared invalid.  Therefore, the Court rejected HealthSouth's argument that Doremus requires the dismissal of this action.  (2) The Court declined to recognize standing based upon the alleged lack of authority of public officials to challenge the tax abatement because Henson's claims are not based on any constitutional challenge.  (3) The Court noted that the question of whether a taxpayer has standing to challenge a tax abatement conferred upon another taxpayer has not been heretofore resolved in this State.  The Court expressly held that a taxpayer has standing to challenge a tax abatement conferred upon another taxpayer comparable to the previously recognized standing to challenge the expenditure of public funds so long as the taxpayer can demonstrate a probable increase in his tax burden from the challenged activity.)
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• Massey v. Massey,

No. 1030086 (Ala. Apr. 30, 2004)
(The Supreme Court affirmed the trial court without opinion.  Justice Stuart wrote a dissenting opinion citing two cases not cited by either party.  Justice Lyons wrote a concurring opinion stating that he is disinclined to reverse the judgment of a trial court where the appellant has failed to provide the Court with the necessary tools to reach that result.)
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• Ex parte Parks,

No. 1030244 (Ala. Apr. 30, 2004)
(criminal; voluntariness of guilty plea; Johnny C. Parks pleaded guilty to the unlawful distribution of a controlled substance, cocaine.  After the trial court accepted Parks's guilty plea, Parks did not object, request that his guilty plea be withdrawn, or move for a new trial.  He appealed, challenging the voluntariness of his guilty plea.  The Court of Criminal Appeals affirmed the judgment of the trial court, without an opinion.
HOLDING:  The Supreme Court affirmed.  The Court held that because Parks did not first present to the trial court his claim that his guilty plea was involuntary, he has waived his right to appeal as to that issue.)
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Opinions Released April 23, 2004

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  APRIL 23, 2004

 
• Beal Bank, SSB v. Schilleci,

No. 1021223 (Ala. Apr. 23, 2004)
(attorneys' fees; estates; foreclosure; George Babakitis, as administrator ad colligendum of the estate of Joseph T. Robino, Jr., deceased, filed a complaint seeking declaratory relief, asking the trial court (1) to set aside a foreclosure sale on property known as the Lorna Village Shopping Center ("Lorna Village") that was jointly owned by Joseph T. Robino, Jr. ("Joseph Jr."), and his brother, S.T. Robino ("S.T."); (2) to determine the amount of mortgage indebtedness on Lorna Village; and (3) to determine the amount of attorney fees and expenses Beal Bank, SSB ("Beal"), the mortgagee, was entitled to for conducting the foreclosure sale.  Babakitis assigned to Frank S. Schilleci the estate's statutory right of redemption to Lorna Village, as well as all rights in any pending litigation.  Schilleci petitioned the trial court to substitute him as the real party in interest in the declaratory-judgment action, and the trial court granted the petition insofar as it allowed him to enforce his property rights in the pending case.  Schilleci amended the complaint to ask that "the attorney fees be declared excessive, that the foreclosure sale be kept in place, and the Court declare and determine the amount that [he] can pay [Beal] in order to redeem ... Lorna Village Shopping Center"; he later filed a verified amended complaint.  Thereafter, Schilleci redeemed the property from Beal.  After various other motions, the case proceeded to a bench trial on the issue of the reasonableness of the attorney fees.  Schilleci amended the complaint to ask that "the attorney fees be declared excessive, that the foreclosure sale be kept in place, and the Court declare and determine the amount that [he] can pay [Beal] in order to redeem ... Lorna Village Shopping Center"; he later filed a verified amended complaint.  Thereafter, Schilleci redeemed the property from Beal.  After various other motions, the case proceeded to a bench trial on the issue of the reasonableness of the attorney fees.  The trial court, in an order dated December 19, 2002, stated, in pertinent part: "The question presented to the Court is 'are the legal fees charged by Beal's attorneys of $153,616.50 less $17,500.00 (previously paid by a surety company on a reversal of an injunction) for a total of $136,116.59 to foreclose the mortgage on subject property reasonable and necessary.'  The mortgage foreclosure sale was for $480,000.00.  Principal, interest and other accrued charges due under the mortgage were $351,479.00.  The balance of the credit of $128,521.00 was applied to accrued legal fees and expenses; and reimbursed from the proceeds of the foreclosure sale.... There is no doubt that the activities of S.T. Robino substantially and unnecessarily contributed to the costs in this case.  Upon the submissions of the parties the Court finds that a reasonable fee for services performed by Beal's attorneys in this case to be $80,000.00 less $17,500.00 previously paid, or $62,500.00.  This is not to preclude any claim Beal may have against S.T. Robino for his acts.  Either party may submit a proposed order consistent with the Court's findings."  The trial court subsequently entered a judgment, on January 24, 2003, against Beal, which stated, in pertinent part: "A judgment is hereby entered in this cause in favor of Frank S. Schilleci, Jr., and against Beal Bank in the amount of Seventy-three Thousand Six Hundred Sixteen and 59/100 Dollars ($73,616.59), which said sum is arrived at by subtracting Eighty Thousand and No/100 Dollars ($80,000.00), the amount of a reasonable attorney's fee, from the sum claimed by Beal Bank in the amount of One Hundred Fifty-three Thousand Six Hundred Sixteen and 59/100 ($153,616.59)."  On January 30, 2003, Beal filed a motion to alter, amend, or vacate the judgment.  On March 7, 2003, the trial court entered an order granting in part and denying in part Beal's motion; that order modified the judgment of January 23, 2003 by ordering the judgment amount of $73,616.59 to be paid into the Jefferson County Circuit Clerk's office by Beal Bank, SSB and directed the Clerk to deposit said sum into an interest bearing account.  On May 6, 2003, the trial court entered an order vacating the March 7, 2003, order.   The new order stated, in pertinent part: "3. .... [T]he correct amount that Beal should disburse to the Jefferson County Circuit Clerk's office is actually $66,021.00.  This amount equals the amount of money actually paid to Beal, $146,021.00, minus what this Court determined a reasonable amount of legal fees should be, $80,000.00.  The amount of money actually paid to Beal, $146,021.00, represents $128,521.00 applied from the foreclosure sale and proceeds from a cost bond in the amount of $17,500.00.  4. Therefore, the amount of money Beal should  disburse into the Jefferson County Circuit Clerk's office, $66,021.00, is the amount of money that was actually paid to Beal minus the amount determined by this Court for reasonable legal fees.  5. All other aspects of the March 7, 2003 Order remain in full force and affect."  On appeal, Beal raises one issue: "Whether the Trial Court abused its discretion in holding, without setting forth what factors it contemplated in determining that Beal Bank's attorneys' fees should be reduced to $80,000.00 when the only credible evidence given by any expert who had reviewed the invoices and various pleadings involving the work done by Beal Bank's attorneys asserted that the correct amount was $146,021.00?"
HOLDING:  The Supreme Court remanded the case for further explanation by the trial judge.  The Court noted that the trial court's December 19, 2002, order accurately describes the situation: "[t]his case ... has been a prime example of extended and often unnecessary litigation."  The Court noted that when an appellate court reviews the award of an attorney fee it "must be able to discern from the record what factors the trial court considered in determining the amount of attorney fees." The Court noted that nothing in the present case directs its attention to any discrete amounts of time alleged to be either excessive or redundant and certainly none that, in the aggregate, could account for the extreme elimination of hours the trial judge obviously undertook.  The Court stated that without some explanations by the trial judge as to what he discounted, it cannot determine whether the trial judge exceeded his discretion in awarding a lesser fee.  Therefore, the Court remanded this cause to the trial court for the entry of an explanatory order articulating the decision it made, and its reason for that decision, which resulted in the reduction of the attorney fee to $80,000.  The Court ordered that due return shall be made to the Court within 42 days.)
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• Harper v. Winston County,

No. 1021433 (Ala. Apr. 23, 2004)
(summary judgment, wrongful discharge, employee handbook, assault and battery; Sherry Harper was employed by the Winston County Department of Revenue.  Sandra Wright, the  revenue commissioner of Winston County, was her supervisor.  According to Harper, in mid-March 2000, Wright threatened Harper with termination of her employment because Harper was  supporting  the incumbent chairman of the Winston County Commission for  reelection to that position.  Harper states that Wright told her that Wright, would "get" Harper if she voted for the incumbent. In late April 2000, Wright held a meeting of  Department of Revenue employees to discuss  tardiness and the need for employees to report to work promptly at 8:00 a.m. so that they would  be available to assist customers at that time.  Harper states that, on May 9, 2000, she reported to  work at 8:03 a.m., and that Wright spoke to her about her tardiness.   Harper claims that  during that conversation Wright "jumped up and was waving her hands in the air," and that  Harper responded, telling Wright that, in light of the fact that other employees had been tardy,  she believed Wright was treating her differently because of her support of Hayes.  The  conversation began to get heated, and Wright stated, "Sherry come to the back," indicating that  Wright wanted Harper to go to Wright's office.  Harper later testified at her post-termination  hearing that when she refused to go with Wright,  Wright "reached -- jerked for [her] -- jerked  [her] arm and tried to pull [her] back."  Harper admits that when she continued to resist going  to Wright's office, Wright let go of her arm.  The next day, May 10, 2000, Wright attempted to  have a private meeting with Harper.  Harper refused to attend the meeting without a witness  present, because, she says, of Wright's previous threat to "get" Harper and because of the  incident that had occurred the day before.  On May 10, 2000, Wright terminated Harper's  employment with the Department of Revenue, and she wrote the Winston County Commission  to advise it that her termination of Harper's employment was effective that day.  Harper had filed on May 9, 2000, a complaint with the Winston County Commission claiming,  among other things, that Wright had "repeatedly threatened [her] with termination of [her] job  due to [her] political preference" and that Wright had "grabbed [her] arm and tried to force  [her] to go with" Wright.  On May 10, 2000, Harper received a written notice stating the  reasons for her dismissal.  After her termination, Harper received a notice that a "post-termination hearing" would be conducted before a hearing officer appointed by the Winston  County Commission.  The hearing was held on June 13, 2000.  Harper sued Winston County and Wright, alleging that the termination of her employment was in  retaliation for her exercising her First Amendment right to free speech, that the County had denied her due process of law in terminating her employment, that the County had breached her employment contract, and that Wright had committed an assault and battery against her.  Because the complaint presented a federal question, the case was removed to the United States District Court for the Northern District of Alabama pursuant to 28 U.S.C. §1441(c).  The district court entered a summary judgment in favor of Winston County and Wright as to Harper's federal free-speech and due-process claims, declined to exercise supplemental jurisdiction over Harper's remaining state-law claims, and remanded the case to the Winston Circuit Court for consideration of the state-law claims.  On March 26, 2002, Winston County moved the trial court to dismiss, or, in the alternative, for a summary judgment as to the state-law claims against it.  On June 12, 2002, Harper amended her complaint as to her breach-of-contract claim.  On June 27, 2002, Winston County readopted its motion to dismiss or for a summary judgment.  The trial court entered a summary judgment in favor of Winston County and Wright.
HOLDING:  The Supreme Court affirmed the summary judgment in favor of Winston County on Harper's claim that it breached a contract of employment, and found no contract of employment, as a matter of law.  The Court reversed the summary judgment on Harper's claim against her supervisor individually for assault and battery in connection with the manner in which the supervisor touched her during the discharge process.  The Court reaffirmed its rule that employment is at will and is terminable by either party with or without cause.  It also reviewed the conditions needed to establish an employment contract through an employee handbook.  It also stated that the a reservation of the right to change policies set out in the handbook unilaterally negates any inference that the handbook constitutes an enforceable contract.  Language in the handbook, particularly the use of the term "guide," was sufficient to negate any inference of an intent to establish a binding contract, as a matter of law (e.g., : "The Winston County Commission presents this handbook as a guide for working rules, conditions and wage scales relative to employment with Winston County." "It is the intent of this handbook to help guide and instruct the employees ...."The working rules and conditions set [out] herein are a guide and may vary slightly with the  occasion as all problems vary.")  After issuing this holding, the Court also concluded, in an extensive discussion, that the terms of the handbook had been observed.  The Court set out a detailed examination of the substantive provisions of the handbook  and the manner of Harper's discharge is making these rulings.  In reversing the summary judgment on the assault and battery charge in favor of the supervisor (defendant Wright), the Court remarked that it is the "manner  or spirit" in which the supervisor touched Harper's arm that is in dispute.  Harper testified that the supervisor forcefully grabbed her arm.  The supervisor testified that she reached for  Harper's arm in an attempt to lead her into her office so they could continue their discussion  away from the public area.   The Court held that while it is certainly conceivable  that the touching here was merely to attract attention, is all that occurred in this case, and therefore is not actionable, Harper presents substantial evidence  to the contrary.   Harper testified at her due-process hearing that Wright "jerked" her arm.  In  her response to Wright's motion for a summary judgment, Harper states that Wright's touch  greatly offended her and that this fact is evidenced by the fact that she filed her complaint with  the Winston County Commission on May 9, 2000.  In her complaint, Harper states that  "[Wright] grabbed my arm and tried to force me to go with her."  The Court concluded that a question of fact existed whether the supervisor touched Harper in a harmful or offensive manner.)
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• Welch v. Montgomery Eye Physicians, P.C.,

No. 1021931 (Ala. Apr. 23, 2004)
(summary judgment; breach of contract; third-party beneficiary; unjust enrichment; purported agreement to purchase an optometry practice; Montgomery Eye Physicians, P.C. ("MEP"), is a professional corporation organized and existing under the corporate laws of Alabama.  All of the shareholders of MEP are medical doctors authorized to practice medicine in the State of Alabama.  Dr. David Welch, Donna Welch's husband, was licensed under Alabama law to practice optometry; Dr. Welch was not a physician or a medical doctor.  Under Alabama law, all shareholders of a professional corporation organized for the purpose of rendering medical services must be medical doctors.  Before his association with MEP, Dr. Welch had practiced optometry for approximately 15 years, building a substantial patient base.  In 1994, Dr. Welch, who was operating as Welch Associates, P.C., approached the principals of MEP to discuss the possibility of adding Dr. Welch's optometry practice to the ophthalmology practice of MEP.  Prescription Eyewear, Inc., is a corporation organized under the laws of Alabama; the principals of MEP were also the shareholders in Prescription Eyewear.  On May 18, 1994, Welch Associates, P.C., and Prescription Eyewear, Inc., entered into a lease agreement pursuant to which Dr. Welch would lease from MEP the premises MEP had dedicated to Prescription Eyewear.  When this arrangement proved to be mutually beneficial, Dr. Welch suggested that MEP and Dr. Welch enter into a formal employment contract.  On June 14, 1995, Dr. Welch entered into an employment contract with MEP; the contract named Dr. Welch as the optometrist and department coordinator for the contact lens clinic, a division of Prescription Eyewear, and Prescription Eyewear.  This contract extended from June 1, 1995, through September 30, 1996, and provided a salary for Dr. Welch of $178,600 per year.  The employment contract also provided that Dr. Welch would be paid a bonus based on the net profits of the contact lens clinic and Prescription Eyewear.  The contract further provided that if Dr. Welch's employment was terminated for any reason, Dr. Welch could not remove any patient files or records from MEP's premises and could not solicit any patients from MEP without the permission of MEP.  This 1995-1996 contract also stated that if Dr. Welch's employment was terminated, MEP would provide Dr. Welch with a list of the contact lens patients with whom he had established a professional relationship before his association with MEP and whom he would not be prohibited from contacting.  In conjunction with the execution of the employment contract, MEP purchased nearly all of the furniture, fixtures, and equipment Dr. Welch had used in his solo optometry practice.  MEP paid Dr. Welch $71,848.63 for those items, which was the agreed upon fair market value.  On October 16, 1996, Dr. Welch and MEP entered into a second employment agreement for the period beginning October 1, 1996, through September 30, 1997.  Under the terms of that contract, Dr. Welch was to receive a salary equal to 68 percent of the net profits of the contact lens clinic, along with other specified benefits.  Like the first employment contract, this contract provided that if the employment relationship between MEP and Dr. Welch was terminated for any reason, Dr. Welch could not remove any of the patient files or records from the premises of MEP and could not solicit any patients from MEP, except for those patients with whom he had developed a relationship before his association with MEP.  A third and final employment contract was entered into on October 29, 1997, for the period of October 1, 1997, through September 30, 2002.  Under this agreement, Dr. Welch would continue to receive a salary of 68 percent of the net profits of the contact lens clinic.  The contract also contained the same restrictions included in the two previous employment contracts regarding the removal of patient records and the solicitation of patients from MEP.  The third contract further provided for the possibility of disability or illness:  "In the event because of illness or injury disabling Employee and preventing Employee from carrying out his duties under this contract, Employer agrees to pay Employee's salary and bonus for a period not to exceed six (6) months, but in no event beyond the date of termination of this Contract, less the salary including matching and withholding contributions and benefits required to be paid by Employer to hire a professionally competent and qualified optometrist as a replacement."  On October 30, 1998, Dr. Welch was diagnosed with terminal cancer.  After he was diagnosed, Dr. Welch began to receive disability-insurance benefits, and he made arrangements for Dr. Fred Setzer, an optometrist practicing in Birmingham, to begin working for MEP in its contact lens/optometry division in January 1999.  Dr. Setzer was to serve as the replacement optometrist pursuant to the third employment contract.  Because of Dr. Welch's failing health, the third and final employment contract between MEP and Dr. Welch was terminated, and the parties orally agreed to a consulting arrangement between Dr. Welch and MEP.  The oral agreement provided that Dr. Welch was to be paid a monthly fee for consultations with MEP.  In December 1998, Dr. Welch prepared and mailed a letter to all of the patients he had treated while he was associated with MEP, informing them that he was taking a medical leave of absence and urging them to continue to visit MEP for their eyecare.  Furthermore, after his diagnosis, Dr. Welch approached MEP about MEP's purchasing his optometry practice, which had not been done during his association with MEP.  After he approached MEP about purchasing his practice and before any documents were executed, Dr. Welch died.  MEP contends that it never agreed to purchase Dr. Welch's practice.  No purchase agreement exists; only an unsigned noncompetition agreement in which Dr. Welch agreed not to compete with MEP for certain patients has been located.  Donna Welch asserts that even though the noncompetition agreement was never signed, MEP had agreed to purchase Dr. Welch's practice.  After Dr. Welch died, Donna approached MEP and asked MEP to pay her the purchase price she says MEP had agreed to pay for Dr. Welch's practice.  MEP refused to pay any money to Donna Welch for Dr. Welch's practice.  Donna sued MEP.  In her complaint, she alleged breach of contract, a third-party-beneficiary claim, and unjust enrichment, and she sought injunctive relief.  MEP filed a motion for a summary judgment.  Donna filed Brian Welch's affidavit.  Brian Welch, Donna and Dr. Welch's son, testified that his father specifically told him that an agreement to purchase his practice existed.  MEP responded with a motion to strike the affidavit, and the trial court granted that motion.  The trial court granted MEP's motion for a summary judgment and on July 25, 2003, dismissed the breach-of-contract, unjust-enrichment, and third-party-beneficiary claims and the claim seeking injunctive relief.  Donna appealed.
HOLDING:  The Supreme Court affirmed.  The Court held that the trial court did not err in striking Brian Welch's affidavit, because it concluded that the affidavit was offered to prove that a contract existed, not to prove that Dr. Welch intended to enter into a contract with MEP.  The Court noted that it is not disputed that Dr. Welch intended to enter into a contract; what is disputed is whether there actually was an agreement between Dr. Welch and MEP to purchase Dr. Welch's optometry practice.  Because the testimony was inadmissible hearsay and because there was no other evidence to prove the existence of an agreement on the part of MEP to purchase Dr. Welch's practice, the Court held that the trial court correctly granted MEP's motion for a summary judgment on the breach-of-contract claim.  The Court held that Dr. Welch was adequately and appropriately compensated while he was associated with MEP, and as a result, MEP was not unjustly enriched by retaining Dr. Welch's practice after his death.)
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• Ex parte Steelcase, Inc.,

No. 1030248 (Ala. Apr. 23, 2004)
(workers' compensation; whether a trial court can make a finding of a total and permanent disability on a petition for  reconsideration and consider evidence of vocational disability; Johnny W. Richardson is 46 years old.  He reads, spells, and performs arithmetic below high-school level.  He has worked  for only two employers, one of whom was Steelcase.  Both jobs required heavy lifting.  In November 1991, while working for Steelcase, he suffered a work-related injury to his back and underwent corrective back surgery for a herniated disk.  After recuperating, he returned to his full duties with Steelcase.  n August 20, 1992, Richardson was working for Steelcase when he suffered another work-related injury to the same area of his back.  Additional corrective back surgery was performed; after this latter surgery he suffered severe pain and had some physical limitations.  Nevertheless, he returned to the job site.  Richardson was never able to resume his pre-injury duties.  Steelcase placed him in several different positions, including unsuccessful attempts to have him perform strenuous physical labor.  Problems with pain and frequent visits to doctors led to numerous absences from work.  Richardson finally became so debilitated that he could no longer go to the job site and perform his job duties.  He quit working in May 1998.  Richardson filed a workers' compensation action seeking benefits for the second work-related injury.  On February 27, 1996, Richardson and Steelcase entered into a settlement agreement, which stipulated that Richardson was permanently and partially disabled.  However, Richardson retained his rights under Ala. Code §25-5-57(a)(3)i. to petition a court for reconsideration of his permanent-partial-disability rating.  Richardson petitioned the Limestone Circuit Court for reconsideration of his permanent-partial-disability rating.  The court received conflicting testimony as to whether Richardson left the employ of Steelcase within 300 weeks of his injury, and it resolved the conflict in favor of Richardson.  The trial court found that Richardson's loss of employment was for a good cause connected with his work, namely, "Richardson's physical inability to attend the job site or continue his employment with Steelcase."  After hearing all of the evidence presented in an ore tenus proceeding, the trial court entered a judgment granting Richardson's petition and finding him 100 percent permanently and totally disabled.  Steelcase appealed the trial court's judgment to the Court of Civil Appeals, arguing that the petition should not have been granted because, it argued, Richardson did not leave his employment for a good cause connected with his work.  Steelcase also argued that the trial court's judgment exceeded the relief available to Richardson under §25-5-57(a)(3)i. because the court considered, on a petition for reconsideration, evidence of vocational disability and declared that Richardson was permanently and totally disabled.  The Court of Civil Appeals noted that §25-5-57(a)(3)i. did not define the phrase "good cause."  It held, however, that based upon the holdings of previous cases interpreting that phrase, Richardson's leaving his employment because he was physically unable to attend the job site was a "good cause" connected with his employment.  The Court of Civil Appeals also held that nothing in §25-5-57(a)(3)i. prevented the trial court from awarding benefits based on a finding of permanent total disability when an employee has petitioned the court for reconsideration of his permanent-partial-disability rating.
HOLDING:  The Supreme Court affirmed.  The Court held that there is no language in §25-5-57(a)(3)i. to indicate that the Legislature intended that the measurement of compensation be limited to an assignment of a permanent and partial disability rating when a plaintiff, who has been previously declared permanently and partially disabled seeks a reconsideration under the statute of his or her disability rating.  Therefore, the Court held that the Court of Civil Appeals was correct in affirming the trial court's order declaring Richardson permanently and totally disabled and awarding benefits accordingly on review of his petition for reconsideration.)
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• Dzwonkowski v. Sonitrol of Mobile, Inc.,

No. 1030285 (Ala. Apr. 23, 2004)
(appellate jurisdiction; finality of judgment; Rule 54(b); default and dismissal of claims as sanction for intentional misconduct and violation of court orders during trial; corporations; intrafamily dispute as to control of a closely held corporation; allegations of numerous varieties of corporate wrongdoing;  Joseph Dzwonkowski, Sr. ("Joe Sr."), sued Sonitrol of Mobile, Inc. ("Sonitrol"), Robert Dzwonkowski ("Robert"), and Joseph Dzwonkowski, Jr. ("Joe Jr.").  The action is based on a 4-count complaint filed by Joe Sr. against Sonitrol, Robert, and Joe Jr., and a 35-count counter-complaint filed by those defendants.  The trial court empaneled an advisory jury to try the factual questions regarding counterclaims seeking a judgment declaring that Joe Sr., who claimed ownership of five of the nine shares of outstanding Sonitrol stock, owned only one share of stock, and that four of the shares to which Joe Sr. claimed ownership belonged to Joe Jr.   However, the trial court, ruling from the bench, entered a default judgment against Joe Sr. on the counterclaims and dismissed his claims against Sonitrol, Robert, and Joe Jr.  The trial court described the reasons for its ruling in an extensive order that stated, in part:  "[T]his litigation quickly became a question of whether Joe Sr. had committed perjury in Florida on at least two (2) occasions or was committing perjury in this Alabama litigation on the stock ownership issue.  Evidence adduced at trial by Joe Sr., himself, and by [Sonitrol, Robert, and Joe Jr.] confirmed that Joe Sr. had, indeed, testified under oath in his Florida divorce deposition taken on February 16, 1999, that he did not, in fact, own the four (4) shares of stock [he now claims], but that Joe Jr. did own that stock since 1982. ...  [T]he abuses of the judicial system by Joe Sr. during the course of the trial were so pervasive and continuing that even a casual observer of the trial would have been appalled.  During both direct and cross-examination, Joe Sr. frequently raised his voice to a near scream.  Whenever his veracity, recollection or business judgment was questioned during cross-examination, he would raise his voice and use derogatory terms in denigrating Joe Jr. and Robert, as well as their lawyers.  Rather than answer the questions propounded on cross-examination, Joe Sr. used the opportunity to engage in character assassination, often after warning and instruction from the court to simply answer the question propounded.  ...  One example of Joe Sr.'s flagrant disregard of the orders of this court during the trial came during his testimony on direct examination that Joe Jr. had allegedly been involved in gambling in conjunction with some of the most prominent citizens in Mobile.  Joe Sr.'s own lawyer instructed him not to mention those persons by name.  This court specifically instructed Joe Sr.: 'Don't mention any names, I am not going to have any citizens' names slandered here.'  Within seconds, Joe Sr., defying this court, named two persons who had allegedly been involved in gambling with Joe Jr. ...  Joe Sr. also totally disregarded an order granting ... a motion in limine prohibiting anyone from mentioning that Joe Sr. had made allegations to the District Attorney of Mobile County against Joe Jr. and Robert for conduct relating to their dealings with Sonitrol after the litigation was commenced and adverse orders had been entered by the court.  In spite of this order, this court can only conclude that Joe Sr. deliberately violated that order ....  [T]he court advised Joe Sr. that his conduct would not be tolerated and further instructed Joe Sr. that should he raise his voice again that a default and/or dismissal would be entered against him. ...  After lunch, the trial resumed and Joe Sr.'s cross-examination continued for another thirty (30) minutes, when Joe Sr. began screaming at Joe Jr.'s counsel, Mr. Sullivan.  It was at this point that the court enforced its prior order and orally entered a default against Joe Sr. as to [the] counterclaims and dismissed Joe Sr.'s claims against [Sonitrol, Robert, and Joe Jr.] with prejudice under Rule 41(b), [Ala. R. Civ. P.]"   The trial court further observed:  "This court has tried cases involving alleged or actual mass murderers and child rapists.  Those accused of such crimes have from time to time in their trials exhibited [insolent] and disruptive behavior, but the conduct of Joe Sr. in this trial far exceeded their conduct."  The trial court declared and ordered that the ownership of stock in Sonitrol as of December 3, 1999, was as follows: Joe Sr. -- one share, Joe Jr. -- four shares, Robert -- four shares.  As to all counterclaims of Sonitrol, Robert, and Joe Jr. which sought monetary damages, the court entered a default judgment on the issue of liability against Joe Sr., and in favor of Sonitrol, Robert, and Joe Jr., with leave to submit evidence of monetary damages at a later date to be set by the court.  The trial court further ordered: "To the extent all of [such] counterclaims are not adjudicated on the merits herewith, the court makes an express determination that there is no just reason for delay and expressly directs entry of judgment under [Ala. R. Civ. P.] 54(b) as to the dismissal with prejudice of all of Joe Sr.'s claims and the default judgment of liability as to monetary counterclaims and complete default judgment as to non-monetary claims."  Joe Sr. moved to alter, amend, or vacate the judgment.  Sonitrol, Robert, and Joe Jr. moved to supplement the order and judgment to hold, as an alternative basis for the judgment, that, based on  Joe Sr.'s previous inconsistent testimony before two Florida tribunals, Joe Sr. was judicially estopped from claiming ownership of more than one share of Sonitrol stock.  The trial court entered an order denying Joe Sr.'s motion to alter, amend, or vacate the judgment, and supplementing the order and judgment to hold, additionally, that Joe Sr. was judicially estopped from claiming ownership of the four disputed shares. Joe Sr. appealed.
HOLDING:  The Supreme Court dismissed the appeal.  The Court noted that the trial court recited the formula for certification of a judgment pursuant to Rule 54(b), Ala.R.Civ.P., but the Court stated that a claim is not eligible for Rule 54(b) certification unless it has been completely resolved by the judgment.  The Court held that because the issue of damages was left open, the claim was insufficiently adjudicated and could not support an appeal.  The Court also dismissed the appeal as to the remaining claims and counterclaims seeking nonmonetary relief.   The Court noted that although the nonmonetary counterclaims do not suffer the same deficiency as the counterclaims for damages, they are, nevertheless, postured in such a manner as to evade current review because the judgment of dismissal and default purports to bring up as a unit all the claims and counterclaims.  The Court concluded that the judgment, as it pertains to those claims, is not subject to resolution independently of the 29 counterclaims for damages.  In other words, the Court concluded that all of the claims travel together in the single judgment of default and dismissal and are not appropriate for certification under Rule 54(b).  As such, the Court held that the trial court exceeded its authority in certifying as final the counterclaims for compensatory damages, and exceeded its discretion in certifying the remaining claims and counterclaims as final.)
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• Serra Chevrolet, Inc. v. Hock,

No. 1030302 & 1030303 (Ala. Apr. 23, 2004)
(arbitration; scope of arbitration agreement; Scott D. Hock leased a truck from Serra Chevrolet, Inc. ("Serra"), and that lease was assigned to World Omni Financial Corporation ("Omni").  After Omni imposed an excess mileage fee and a disposition fee at the conclusion of the lease, Hock sued Serra and Omni.  Hock alleged that the lease document he signed (the "Hock lease") had a term of 51 months and allowed the truck to be driven 15,000 miles per year with no disposition fee.  Hock alleges that, after he challenged the fees, Omni provided him with a lease document limiting the truck's mileage to 12,000 miles per year and imposed a disposition fee (the "Serra-Omni lease").  Hock alleged that he did not sign the Serra-Omni lease and that it was forged.  Hock sought damages on theories of defamation, negligence, suppression, fraud, and conspiracy to commit fraud.  Hock also sought declaratory and injunctive relief.  More specifically, he sought a judgment declaring, in effect, that the second lease, which Hock had not signed ("the Serra-Omni lease"), was fraudulent and void, that the provisions of the initial lease, which Hock had signed ("the Hock lease"), had been fully executed, and that the execution of the Hock lease had extinguished his obligations to Serra and Omni.  Both the Hock lease and the Serra-Omni lease contained identical arbitration provisions requiring arbitration of any dispute that "arises out of or relates to this Lease, or the breach of this Lease ...."  Serra and Omni moved to compel arbitration.  Hock argued that he was asserting no claims arising out of or relating to the Hock lease, and that the arbitration provision in the Serra-Omni lease could not be used to compel arbitration because he never signed it.  The trial court denied the motion to compel arbitration, and Serra and Omni appealed.
HOLDING:  The Supreme Court reversed.  The Court held that factual allegations and claims in the complaint belie Hock's contentions that he is not asserting any claims arising out of or relating to the Hock lease.  The Court noted that the forgery issue is nothing more than a variation of a claim that Serra and Omni breached the Hock lease.  The Court noted that Hock's right to relief turns solely on whether the rights of the parties to this dispute are defined by the Hock lease, and Hock admits that he attached that lease to his complaint because it "is factually relevant to the invalidity of the [Serra-Omni] Lease.")
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NOTE:  The prevailing appellant in this case was represented by attorneys Cecil H. "Coy" Macoy and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C.
 
• McCray v. State Farm,

No. 1030305 (Ala. Apr. 23, 2004)
(summary judgment, breach of insurance contract, dispute over mailing cancellation notice; policyholder seeking to recover losses caused by a tornado; In 1990, State Farm sold Howard McCray and Donna McCray homeowners insurance on their residence. The declarations page of the policy listed the named insured as "McCray, Howard C. Jr & Donna, 7195 10th Avenue, Altoona, Alabama 35952-8313," and this was correct. The declarations page also listed the mortgagee as "Regions Bank, P.O. Box 790, Montgomery, Alabama 36102-0790."   The State Farm policy provided insurance coverage conditioned on the payment of premiums and on the insured's compliance with certain provisions of the policy. The policy expressly stated that State Farm could cancel the policy for various reasons, including the insured's failure to pay premiums when due. The policy required State Farm to notify the insured, in writing, as to when any cancellation would take effect, at least 10 days before the cancellation date. The cancellation notice was to be mailed to the insured at the mailing address shown on the declarations page of the policy. The provision regarding the notice of cancellation and where the notice was to be mailed applied regardless of whether the premium was payable directly to State Farm or its agent or by the mortgagee pursuant to a finance or credit plan.  The Court's opinion recites extensive history of difficulties experienced by the McCrays, during the summer of 2001, in making payment on their policy, and successfully avoiding cancellation until September.  These efforts included an authorization to pay by automatic deduction from a Regions bank account.   The McCrays again had difficulty making a timely premium payment in August 2001. State Farm claimed to have mailed a cancellation notice for nonpayment of premium to the McCrays' 10th Avenue address; however, the McCrays did not recall receiving the notice. The August 30, 2001, cancellation notice indicated that if a premium payment was not received by September 19, 2001, the policy would be canceled as of that date. Valerie Buford, a State Farm payment-plan supervisor, stated in her affidavit that the August 30 cancellation notice was sent to the McCrays at the 10th Avenue address that appears on the declarations page of their homeowners insurance policy. She also stated that the cancellation notice was properly addressed, that sufficient postage was affixed to the notice, and that State Farm's return address appeared on the envelope. Buford also stated that the August 30 cancellation notice sent to Regions Bank, as mortgagee, was properly sent to Regions Bank at its address as it appeared on the declarations page of the policy. She further testified that the photographs of the envelopes containing the August 30 cancellation notices sent to the McCrays and Regions Bank attached to her affidavit as exhibits were true and correct copies.  The McCrays failed to make a premium payment by September 19, 2001, and the policy was canceled. On Saturday, November 24, 2001, the McCrays' house was damaged by a tornado. Both the McCrays and Regions Bank claimed that they never received the August 30, 2001, cancellation notice.  Janice Baker, the Regions Bank loan officer in charge of the McCrays' mortgage loan, had inspected the Regions Bank file related to the McCrays' loan and found nothing in the file indicating that their homeowners policy had been canceled prior to November 24, 2001.  The explanation offered by the McCrays as to why they did not receive the May 31 cancellation notice, the notice that the bank draft had not been made, and the August 30 cancellation notice is that the mailbox at their house had been vandalized in the past. They testified that items other than mail had been placed in their mailbox, that mail had been "thrown up" in their yard, that the mailbox door had on occasions been opened and left open, and that their mailbox had been "beaten on."  The McCrays sued State Farm alleging breach of contract, seeking the full amount payable under their policy for the loss caused by the tornado.  On March 24, 2003, State Farm filed a motion for a summary judgment and a memorandum brief in support of the motion.  On October 10, 2003, the circuit court entered a summary judgment in favor of State Farm.
HOLDING:  The Supreme Court reversed the summary judgment.  The Court found there to be a genuine issue of material fact about whether the State Farm cancellation notice was mailed properly.  In addition to the denial from the policyholder, the Court noted there was evidence that the mortgage holder did not receive the cancellation notice.  The Court held that the testimony of State Farm's payment plan supervisor, and photos of envelopes addressed to McCray and to Regions allegedly containing cancellation notices was not sufficient to establish that the notices were mailed.)
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Opinions Released April 16, 2004

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  APRIL 16, 2004

 
• Ex parte State Dep't of Human Resources,

No. 1020739 (Ala. Apr. 16, 2004)
(termination of parental rights; evidence; hearsay; Three of Y.M.'s children were removed from her custody, were adjudicated dependent, and were placed in the custody of the Jefferson County Department of Human Resources ("DHR").  Subsequently, DHR petitioned to terminate Y.M.'s parental rights.  The trial court conducted a hearing on DHR's petition on February 28, 2002.  At the hearing the trial court admitted  testimony and took judicial notice of the contents of the entire court file relating to each child.  The trial court then terminated Y.M.'s parental rights.  Y.M. appealed to the Court of Civil Appeals.   The Court of Civil Appeals reversed the judgment of the trial court and remanded the case for further proceedings.  In a plurality opinion, the Court of Civil Appeals held that "when a juvenile court hears evidence on a petition to terminate parental rights, it is conducting an adjudication, not making a disposition, and hearsay is 'not competent in a hearing on the [termination-of-parental-rights] petition.'  [Ala. Code] § 12-15-65(h)."
HOLDING:  The Supreme Court affirmed the Court of Civil Appeals' holding that a termination-of-parental-rights hearing is an "adjudicatory hearing" at which hearsay is inadmissible and its finding that the trial court erred in taking judicial notice of the entire court file.)
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• Altmayer v. Stremmel,

No. 1020952 (Ala. Apr. 16, 2004)
(appellate procedure; postjudgment motions; jurisdiction; timeliness of appeal;  The plaintiffs were co-lessees with Bill Stremmel, the deceased father of Peter Stremmel and Steve Stremmel ("the Stremmels"), of real property in Mobile upon which a building was located ("the property").  After Bill Stremmel died, his will was admitted to probate in Washoe County, Nevada, on October 21, 1994; pursuant to the will, the Stremmels allegedly became the owners of their father's interest in the leases on the property.  On May 22, 2002, the plaintiffs sued the Stremmels in the Mobile Circuit Court.  In their complaint, the plaintiffs alleged that the Stremmels had become lessees and cotenants in the property but had failed to make the payments necessary to fulfill their pro rata shares of the expenses and costs due under the leases.  The plaintiffs asserted that, as of January 11, 2002, the Stremmels owed them $64,501.93 for payments the plaintiffs had made on the Stremmels' behalf in order to fulfill obligations under the leases on the property.  In July 2002, the Stremmels filed with the trial court affidavits concerning their residency, and they moved the court to dismiss the action on the basis that the trial court lacked personal jurisdiction over them.  On November 8, 2002, the trial court entered an order granting the Stremmels' motion to dismiss.  The trial court found that the Stremmels were not subject to the court's jurisdiction, and it dismissed the case with prejudice.  On January 8, 2003, 61 days  after the entry of the court's November 8, 2002, order, the plaintiffs filed a motion and an accompanying affidavit of the plaintiffs' counsel asserting that neither they nor their counsel had received notice of the order dismissing the case before January 8.  Therefore, the plaintiffs moved the court, pursuant to Rule 77(d), Ala.R.Civ.P., to extend the time for appeal by 30 days, asserting that this would  give them until January 19, 2003, to file their notice of appeal.  In the alternative, the plaintiffs moved the court, pursuant to "Rule 59(e) and/or 60(b)," Ala.R.Civ.P., to alter or amend its order dismissing the case, and to change the dismissal from "with prejudice" to "without prejudice."  On January 29, 2003, the trial court made an entry on the case action summary purporting to grant the plaintiffs' January 8 motion.  On March 11, 2003, the plaintiffs filed a notice of appeal.
HOLDING:  The Supreme Court dismissed the appeal.  The Court noted that the 42-day period for filing an appeal had expired on December 20, 2002, and that Rule 77(d) authorizes a circuit court, upon a showing of "excusable neglect based on a failure of the party to learn of the entry of the judgment or order," to extend the time for appeal "no more than 30 days from the original deadline for filing a notice of appeal."  The Court further noted that if the trial court had granted the plaintiffs' Rule 77(d) motion, the 30-day extension period would have expired on January 21, 2003, and that after that date, the trial court had "no jurisdiction to afford the [plaintiffs] any relief under Rule 77(d)."  Because the trial court did not rule on the plaintiffs' Rule 77 motion before January 21, but instead did so on January 29, the trial court no longer had jurisdiction to rule on the motion, and the court's order was a nullity.  Because the plaintiffs' Rule 77(d) motion was not timely granted, the last day on which they could file their notice of appeal was not affected, and their appeal was not timely filed.  The Court held that Rule 77(d) exclusively governs situations in which a party claims lack of notice of the entry of a judgment or order and that relief under Rule 60(b) cannot be substituted for the exclusive remedy provided by Rule 77(d) and thereby used as a method to extend the time within which to appeal.  Moreover, the Court held that the lack of notice from the clerk's office is not a ground for relief under Rule 60(b).)
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• Valentine v. Watters,

No. 1020986 (Ala. Apr. 16, 2004)
(legal malpractice; failure to file a timely claim; fraud; need for expert testimony; Linnie F. Valentine underwent bilateral breast-implant surgery.  The implants later caused problems, including pain, hardness, discoloration, swelling, and leakage.  Valentine consulted attorney Richard Watters about pursuing litigation.  Valentine and Watters dispute the substance of their conversation at that consultation.  Valentine stated that Watters represented to her that he was very familiar with litigation regarding breast implants and that he had represented several clients in breast-implant litigation.  She further claimed that Watters's statements to that effect "enticed" her to hire him.  She stated that it was not until Watters's deposition in this case that she learned that he had not represented any client in litigation regarding breast implants.  Watters denied that he told Valentine that he had represented other clients in breast-implant litigation; he stated that he told her that he had represented other clients in products-liability actions.  Valentine claimed that if she had known that Watters had had no experience representing clients in breast-implant litigation, she would not have hired him to represent her.  After Valentine hired Watters to represent her, Watters, on Valentine's behalf, sued Medical Engineering Corporation, the manufacturer of the breast implants, in the Mobile Circuit Court.  Thereafter, the case was removed to federal court; the action was later stayed and consolidated with a class-action suit in the United States District Court for the Northern District of Alabama.  Valentine agreed to consolidate her case with the class action (the class-action suit and the offices responsible for processing her settlement are collectively referred to as the "Multi-District Breast Implant Litigation" or "MDL").  Valentine claimed that she contacted Watters's office frequently to inquire about the status of her case and that Watters's office repeatedly advised her that everything was fine and that the papers had been filed.  Valentine stated that, in September 1996, she received a telephone call from Watters in which he informed her that the claims administrator's office that was managing the class-action suit had lost her papers and that she needed to come in and sign a new document.  Thereafter, Valentine met Watters at his office and signed a new registration form for participation in the MDL settlement program.  She stated that Watters assured her that everything was in order and that she would be receiving her portion of the settlement soon.  Valentine stated that this meeting occurred after the deadline for filing an election to participate in the class action had passed.  Valentine stated that in December 1996 she met with Watters, and he again advised her that the office managing the MDL had lost her file and all her paperwork.  Watters gave Valentine a handwritten note stating that he would try to find someone else in the Mobile County area who would help straighten out her problems.  Valentine requested that Watters give her her file.  He did, and, after reviewing her file, she noticed that the court had mailed several papers to Watters that included deadline dates required by the MDL.  Valentine concluded that Watters had failed to file any documents before those deadlines.   On December 12, 1996, Valentine went back to Watters's office.  She claimed that Watters again told her that he had filed her paperwork, that the office managing the MDL had lost her paperwork, and that she would be classified as a "late registrant."  According to Valentine, when her husband asked Watters to produce copies of the documents he had filed on her behalf for participation in the class-action suit, Watters admitted to Valentine that he had not filed the paperwork.  Watters stated in an affidavit that he "filled in all forms that [he] received and sent them in."  On September 9, 1997, Valentine filed an action against Watters, alleging legal malpractice, misrepresentation, and negligent misrepresentation.  Valentine moved for a summary judgment.  Valentine later identified Kent McPhail, an attorney with experience in breast-implant litigation, as her only expert witness in her legal-malpractice action against Watters.  McPhail gave a sworn statement in which he stated his opinion that Watters violated the applicable standard of care in Valentine's case. Watters sought to discover McPhail's case files and the names of the other clients he represented in breast-implant litigation.  McPhail refused, contending that that information was privileged and confidential.  On October 12, 2002, the trial court ordered Valentine to provide Watters a list of McPhail's breast-implant-litigation clients.  At that point, McPhail declined to testify as Valentine's expert witness.  On December 10, 2002, Valentine sent a letter to the trial court removing McPhail as an expert witness; however, she reserved the right to call him as a fact witness.  Watters moved for a summary judgment and argued that the Alabama Legal Services Liability Act, Ala. Code §6-5-570 et seq. ("the ALSLA"), requires Valentine to support her claims with testimony from an expert witness.   Watters also argued that a summary judgment was appropriate as to Valentine's misrepresentation and negligent- misrepresentation claims, because she had not shown that Watters's alleged misrepresentation caused her to be classified as a "late registrant" in the MDL.  In support of his motion for a summary judgment, Watters attached his own affidavit.  The trial court, without clarifying its grounds, entered a summary judgment in favor of Watters.
HOLDING:  The Supreme Court reversed.  The Court noted that it is the plaintiff's burden to prove that the legal-service provider breached the applicable standard of care and that expert testimony is normally required to establish that the legal-service provider deviated from the applicable standard of care.  However, the Court also noted that Ala. Code §6-5-580 does not expressly provide that the plaintiff must present expert testimony in support of a legal-malpractice claim.  The Court held that whether Valentine would have prevailed in the MDL litigation is a question which is within the understanding of a jury; therefore, Valentine need not present expert testimony on this issue.  The Court held that the failure to timely file an action is a matter within the common knowledge of the average layperson. Furthermore, the Court held that that an attorney's representations to a potential client are governed by the ALSLA.  However, the Court held that whether Watters misrepresented his qualifications to Valentine is also a question for the jury for which no expert testimony was required.)
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• BT Secs. Corp. v. W.R. Huff Asset Mgt. Co., L.L.C.,

No. 1021226 (Ala. Apr. 16, 2004)
(class action; securities; fraud; Securities Litigation Uniform Standards Act of 1998 ("SLUSA"), 15 U.S.C. §§ 77p and 78bb; "covered security";  On August 10, 1995, Bruno's, Inc., issued $400 million of high-yield subordinated notes.   W.R. Huff Asset Management Co., L.L.C., an investment management company, purchased $290 million of those notes on behalf of its customers in November 1995.  On February 2, 1998, Bruno's and its subsidiaries filed a petition in bankruptcy in the District of Delaware under Chapter 11 of the Bankruptcy Code.  On August 4, 1999, Huff sued Kohlberg Kravis Roberts & Co., L.P., the company that acquired control of Bruno's in 1995, in the Jefferson Circuit Court.  The action related to Kohlberg's participation in Bruno's recapitalization.  Kohlberg had the case removed to the United States Bankruptcy Court for the Northern District of Alabama because of Bruno's pending bankruptcy proceeding in Delaware.  Huff moved the bankruptcy court to remand the action to state court, and on January 4, 2001, the bankruptcy court transferred the case to the United States District Court for the Northern District of Alabama.  On July 1, 2002, Huff moved the district court to remand the case to state court, but the district court determined that Huff's claims were preempted by SLUSA and dismissed Huff's claims without prejudice.  In the meantime, on April 28, 2000, Huff filed a second action involving the Bruno's notes, from which this permissive appeal is taken.  Huff sued BT Securities Corporation, Chase Manhattan Bank, Salomon Brothers, Inc., Deloitte & Touche LLP, and Arthur Andersen LLP (collectively "BT Securities") in the Jefferson Circuit Court, alleging that BT Securities had engaged in fraud and misrepresentation in connection with the sale of the Bruno's notes.  BT Securities removed the case to the United States District Court for the Northern District of Alabama.  Huff moved the district court to remand the case to the state court.  The district court, in an earlier unpublished opinion, found that "SLUSA was Huff's exclusive avenue for relief, found the existence of a federal question, and therefore denied Huff's motion to remand."  Huff then moved the district court to reconsider its decision that SLUSA controlled its claims, or, alternatively, to sever the case as to one defendant, Deloitte & Touche, and remand, or, alternatively, to grant it leave to amend its complaint.  BT Securities moved the district court to dismiss the action.  On May 22, 2001, the district court determined that it lacked jurisdiction over Huff's action and remanded the cause to state court.  On remand to the state court, BT Securities moved to dismiss Huff's action because, it argued, SLUSA preempted all of its claims.  On March 31, 2003, the circuit court denied BT Securities' motion to dismiss.  The trial court held that Huff's claims were not preempted by SLUSA because the alleged wrongful conduct occurred before the enactment of SLUSA in 1998.  BT Securities petitioned the Alabama Supreme Court for a permissive appeal pursuant to Rule 5, Ala.R.App.P.
HOLDING:  The Supreme Court reversed and rendered a judgment for the defendants.  The Court noted that SLUSA mandates that "covered class actions" brought pursuant to state law must be removed to federal court. Thus, the Court noted that for actions that fall within SLUSA, the federal court is the exclusive venue for securities fraud class-action litigation. Huff conceded that this action is a covered class action pursuant to 15 U.S.C. § 78bb(f)(5)(B); that its claims are based on Alabama state law; and that its claims allege a misrepresentation or omission of material fact in connection with the purchase or sale of the Bruno's notes.  Huff argued, however, that the Bruno's notes were not "covered securities" as that term is defined by 15 U.S.C. § 78bb(f)(5)(E).  The Court held that Huff's argument fails because § 78bb(f)(5)(E) states that the time it is determined whether a security is a "covered security" is "at the time during which it is alleged that the misrepresentation, omission, or manipulative or deceptive conduct occurred."  The Court concluded that the majority of the allegedly wrongful conduct by BT Securities occurred before the Bruno's common stock was removed from the NASDAQ stock exchange on August 18, 1995.  The Court noted that while Huff did not purchase the Bruno's notes until November 1995, Huff stated in its complaint that "in reliance on the Prospectus and other disclosures made by the defendants" it purchased the Bruno's notes.  Because Huff's complaint acknowledged that it purchased the notes in reliance upon the prospectus, which was dated August 10, 1995, and upon other representations, occurring before its decision to purchase the stock in November, the Court concluded that the majority of those events occurred while Bruno's common stock was listed on the NASDAQ stock exchange.  Thus, because the allegedly wrongful conduct occurred while the Bruno's common stock was listed, the Court held that Bruno's common stock qualifies as a covered security pursuant to 15 U.S.C. § 77r(b)(1) and the Bruno's notes would also be considered a covered security under 15 U.S.C. § 77r(b)(1)(C).  The Supreme Court held that the trial court's finding -- that SLUSA did not preempt Huff's claims because the alleged wrongful conduct occurred before the enactment of SLUSA in 1998 -- directly conflicted with the federal court's conclusion in W.R. Huff Asset Mgmt. Co. v. Kohlberg Kravis Roberts & Co., 234 F.Supp.2d 1218, 1227 (N.D. Ala. 2002).  The Supreme Court concluded that Huff's ability to bring a covered class action is a matter of procedure, not a substantive right; therefore, it held that SLUSA applies to and preempts Huff's claims.)
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• Walden v. Smith,

No. 1021518 & 1021526 (Ala. Apr. 16, 2004)
(The Court's opinion states in full as follows: "The only matters properly before this Court on appeal are those that address Willadean Walden's fraudulent-suppression claim (case no. 1021518).  Walden, however, makes no argument on appeal related to her fraudulent-suppression claim.  Walden does raise and argue in her appeal several issues that were properly raised and considered for review in her petition for the writ of certiorari, which this Court has today denied.  Ex parte Walden (No. 1021373, April 16, 2004), __ So. 2d __ (Ala. 2004) (table).  The issues presented by Hugh Smith in his cross-appeal are properly raised and argued; however, the trial court did not err in its disposition of those issues.  For these reasons, we affirm the judgment of the trial court in both Walden's appeal (case no. 1021518) and Hugh Smith's cross-appeal (case no. 1021526).")
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• Stribling Equip., Inc. v. Crager,

No. 1030131 (Ala. Apr. 16, 2004)
(void judgment; Ala.R.Civ.P. 60(b)(4); domestication of foreign judgment; personal jurisdiction; In 1997, Jason Scott Crager, doing business under the name J&E Logging, visited the Meridian, Mississippi, dealership of Stribling Equipment, Inc. ("Stribling"), to look at a bulldozer Stribling was offering for sale.  Upon returning to his home in Chatom, Alabama, Crager signed a credit and retail charge application and a contract to purchase the bulldozer.  Stribling accepted the application and delivered the bulldozer to Crager.  The bulldozer malfunctioned at some point and Crager returned it to Mississippi for repairs.  As of June 30, 1999, the balance on Crager's charge account at Stribling, which included the remainder of the purchase price of the bulldozer plus the costs of repairs, was $35,210.11.  On August 10, 1999, Stribling sued Crager in the Rankin Circuit Court in Mississippi to recover the principal balance on the account, interest at the rate of 8%, and attorney fees.  The Washington County, Alabama, Sheriff's Department effected personal service upon Crager on August 23, 1999.  Crager's Alabama lawyer filed an answer.  The answer did not challenge personal jurisdiction of the Mississippi court over Crager but asserted only the following affirmative defenses: "accord and satisfaction, estoppel, failure of consideration, payment, release, and waiver."  The Alabama lawyer was not licensed to practice law in Mississippi, and Stribling moved to strike the answer on that ground and for the entry of a default judgment.  Stribling's motion contained a certificate of service dated October 20, 1999, stating that it had provided a copy of the motion and a notice of the hearing on the motion, which was scheduled for November 23, to Crager's attorney.  Crager's attorney notified Crager that the motion had been filed and the hearing set; he redrafted an answer that included the same responses and defenses that had been previously asserted and had Crager sign the answer pro se.  Crager filed this answer on November 8, 1999.  On November 23, 1999, the trial court held a hearing on Stribling's motion.  Crager did not appear at the hearing.  The court entered a judgment for Stribling, adding that "the answer filed by the defendant is insufficient in law and should be stricken."  The court characterized its ruling as a "judgment as a matter of law, pursuant to Rule 56 of the Mississippi Rules of Civil Procedure."  The court awarded $46,946.81 plus prejudgment and postjudgment interest at the rate of 8% and court costs.  Stribling filed a certified copy of the Mississippi judgment in its favor in the Washington Circuit Court for domestication.  On February 8, 2002, the Washington Circuit Court entered an order domesticating the Mississippi judgment.  The Washington County Sheriff's Department personally served Crager with a copy of the order domesticating the Mississippi judgment on February 10, 2002.  On April 8, 2002, Stribling sought to execute the judgment by process of garnishment.  On December 12, 2002, Stribling filed a notice of deposition seeking to determine what assets Crager had.  Crager appeared at the deposition, which was held on January 10, 2003.  On January 21, 2003, Crager filed a motion for relief under Rule 60(b)(4), Ala. R. Civ. P., on the basis that the Mississippi judgment was void for lack of personal jurisdiction and that the entry of the default judgment violated Crager's due-process rights because he was not properly served with notice of Stribling's motion and the hearing to be held on that motion.  On September 11, 2003, the trial court granted Crager's motion and set aside its previous order domesticating the Mississippi judgment.
HOLDING:  The Supreme Court reversed.  The Court held that because Crager's answer in the Mississippi court did not raise the defense of lack of personal jurisdiction, he waived that defense.  The Court concluded that Mississippi law would treat persons as having appeared once they have voluntarily filed an answer, regardless of whether that answer is later stricken because of a technicality.  The Court also held that Crager had notice of the hearing because it was served on his Alabama attorney, so there was no violation of due process.)
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• Ex parte L.A.C.,

No. 1030232 (Ala. Apr. 16, 2004)
(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 Civil Appeals' opinion.)
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Opinions Released April 9, 2004

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  APRIL 9, 2004

 
• Ex parte Morrow,

No. 1021059 (Ala. Apr. 9, 2004)
(criminal; manslaughter; right to previous audio and video statements of witness; in camera inspection; waiver; framing of appellate issues; Defendant Jackie Lynn Morrow and Regina Couch were married in June  1988.  They divorced in June 1993.  They reconciled  shortly after the divorce and went into business  together, opening a tanning salon.  Couch and Morrow  separated again in June 2000.  On August 21, 2000,  Raymond Bodine, Couch's boyfriend at the time, informed  Morrow that Couch had changed the locks on the tanning  salon. On August 22, 2000, Morrow went to the tanning salon to  get a new key.  Couch was in the salon with her father,  Merle.  Couch and Morrow provide differing accounts of  what happened next.  The parties agree that Merle and  Morrow started to fight, although Couch and Morrow  disagree as to how the fight began.  The parties agree  that Couch had a gun, that she shot Morrow while he and  Merle were fighting, and that Morrow and Couch then  struggled for Couch's gun.  The accounts differ at this  point.  Couch testified at trial that Morrow took the  gun from her, shot Merle, and fired two shots at her. Morrow testified at trial that he tried to get the gun  from Couch and that in the struggle for the gun Couch  shot Merle and also fired two more shots.  Couch fled  and telephoned emergency 911.  Morrow telephoned his  mother, told her that he had been shot, and then passed  out. Merle died.  Morrow was in a coma for six days and  underwent several operations to repair damage caused by  the gunshot.  While Morrow was in a coma, the police  interrogated Couch.  The police tape-recorded the  statement Couch made during the interrogation.  Couch  also reenacted the shooting for the police, and the  police videotaped Couch's reenactment.  Morrow awoke  from his coma on August 27, 2000.  The grand jury indicted Morrow for one count of  manslaughter, and one count  of attempted murder.  Morrow filed a discovery request seeking  production of "[a]ny and all reports, memoranda, notes  or documents which embrace, detail, record or relate to  communications with the victim(s), witnesses or other  persons present at the scene of the crime."  The State  agreed to produce the requested material, but it  ultimately breached that agreement.  At trial, Couch  testified against Morrow.  At the conclusion of her  testimony, Morrow asked the trial court to compel the  State to produce copies of any statements Couch had made  to the police, including copies of her audiotaped  statement, the videotaped reenactment, and the recording  of the emergency 911 call.  The trial court declined the  request.  Morrow also moved the trial court to conduct  an in camera inspection of the requested materials; the  trial court also denied that motion.  After being sentenced, Morrow filed a postconviction discovery request seeking  the recording of the 911 call, the audiotaped statement,  and the videotaped reenactment.  The trial court denied  the motion.
HOLDING:  The Supreme Court reversed the decision of the Court of Criminal Appeals affirming the trial court, and remanded with directions for the trial court to conduct the inspection and provide for a new trial if, after conducting that review, it finds that defendant's attorney should have been allowed to inspect the items.  (1) The Court held that the lack of any  segment in the trial court transcript with a particularized request from defense counsel for "in camera inspection" of the previous recorded statements of the witness Couch did not preclude defendant from so arguing on appeal.   There were several other indications that such a  request actually was made.  First, the Court of Criminal Appeals  stated that a request was made for inspection of the videotape to determine whether it contained any exculpatory material.  Second, the State acknowledged in its brief that defendant made a request for in camera inspection.  Third, the State did not dispute defendant's implicit assertion, in his description of the issues, that a request for in camera inspection was made.  The risk that the trial court was not presented with the matter is inconsequential in light of the State's position.  The Court also said that it could not resolve the case based on  the absence in the transcript of a request for in camera inspection, as urged by the dissenting opinion, and be consistent with due process of law for the defendant.  Part of due process requires the Court to takes the appeal with the issues framed by the parties.  (2) The Court rejected the State's position that the potentially impeaching statements need not be examined in camera because defendant failed to establish the necessary predicate.  Here the necessary predicate was found to exist because the statement "can otherwise be authenticated."  The defendant had established the existence of prior statements by the witness and sufficient verification of a verbatim statement.  The witness herself testified that her statements were taped.  The district attorney had copies of the statements, and stated that he had watched video portions.  He claimed the witness statements were "extremely consistent" with a video re-enactment she provided.  (3) The Court was unwilling to find in camera review unnecessary on the basis of the State's failure to have recorded a beginning portion of the witness interview.)
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• Stovall v. Universal Constr. Co.,

Nos. 1021938 & 1021953 (Ala. Apr. 9, 2004)
(construction; personal injury or death to employee of subcontractor; duty; negligent inspection;  In anticipation of the 30th anniversary of man's first landing on the moon, the U.S. Space and Rocket Center in Huntsville sought to construct and erect a replica of the Saturn V rocket, the rocket that carried the Apollo 11 astronauts ("the rocket").  The Alabama Space Leasing Corporation entered into an agreement with Universal Construction Company, Inc., d/b/a Turner-Universal ("Turner"), a Delaware corporation, pursuant to which Turner was to design and build the rocket replica.  Turner subcontracted with Penwal Industries, Inc. ("Penwal"), a California corporation, for the assembly and erection of the rocket.  The subcontract provided that Penwal was to "perform and furnish all the work, labor, services, materials, plant, equipment, tools, scaffolds, appliances, and other things necessary for ASSEMBLY AND ERECTION OF SATURN V ROCKET."  (Capitalization in original.)  The subcontract also stated that Turner, as the general contractor, would "furnish temporary lighting for night shifts sufficient to allow assembly."  Finally, the subcontract listed several components and jobs for which Penwal was not responsible, including "[t]emporary lighting or electrical."  Article XXIII of the subcontract is entitled "Liability for Damage and Personal Injury"; it reads in part: "The Subcontractor [Penwal] hereby assumes entire responsibility and liability for any and all damage of any kind or nature whatever (including death resulting therefrom) to all persons, whether employees of any tier of [Penwal] or otherwise, and to all property caused by, resulting from, rising out of or occurring in connection with the execution of the Work ....  [S]hould any claims for such damage or injury (including death resulting therefrom) be made or asserted, whether or not such claims are based upon [Turner's] or the Owner's [U.S. Space and Rocket Center's] alleged active or passive negligence or participation in the wrong or upon any alleged breach of any statutory duty or obligation on the part of [Turner] or the [U.S. Space and Rocket Center], [Penwal] agrees to indemnify and save harmless [Turner] and the [U.S. Space and Rocket Center], their officers, agents, servants and employees from and against any and all such claims and further from and against any and all loss ... that [Turner] and the [U.S. Space and Rocket Center], their officers, agents, servants or employees may directly or indirectly sustain, suffer or incur as a result thereof ...."   In addition, the subcontract required Penwal to obtain liability insurance.  Penwal complied, obtaining insurance with Reliance Insurance Company ("Reliance"), a Pennsylvania corporation licensed to write policies in all 50 states.  In order to fulfill its responsibilities under the subcontract, Penwal contracted with Labor Finders of Decatur, Inc., to supply Penwal with painters.  One of the painters Penwal hired through Labor Finders was Elee Stovall, the plaintiff's husband.  On June 19, 1999, Elee's first day on the job, he, his first cousin Maurice Stovall, and Kendrick Fuqua (hereinafter collectively known as "the painters") arrived in the evening to begin work.  After painting a particular section of the interior, the painters and some other men moved the ladder to another section of the interior.  They did not secure the ladder with lashing once they moved it.  It was around 10:00 p.m. when they moved the ladder, and the painters then took a break before starting work again.  The painters allege that it was very dark when they arrived back at the rocket after their break.  They had two lighting trees at their disposal with which to illuminate the inside of the rocket.  Each lighting tree had one working and one dead bulb.  The ladder was resting where the painters had left it; it had not been tied off or secured in any way.  Maurice Stovall took charge of the lighting trees, shining them on the various places that needed additional painting.  Fuqua climbed up one side of the replica, hooked his lanyard onto the safety cable, and began painting.  Elee then climbed the untied ladder, attempting to hook his lanyard onto the safety cable.  He missed the connection, and as he reached to rehook the lanyard, the ladder shifted and Elee fell from the ladder.  The back of his head hit an interior cross beam, and he landed on the concrete floor.  Elee subsequently died from the injuries he suffered in the fall.  India Stovall, individually and on behalf of her minor children, David G. Stovall and Joel Stovall (hereinafter collectively referred to as "Stovall") sued Turner, alleging negligence/wantonness claims, a products-liability claim, and negligence/wantonness per se.  On October 3, 2001, the Commonwealth of Pennsylvania declared Reliance to be insolvent.  On May 9, 2002, Turner brought a third-party complaint against Penwal seeking indemnity and defense in the action filed by Stovall.  Penwal filed a motion to dismiss, arguing that because Reliance was insolvent, Penwal had no obligation to indemnify or defend Turner.  The trial court dismissed the third-party complaint against Penwal on December 17, 2002.  On July 9, 2003, the trial court entered a summary judgment in favor of Turner on all counts in the action filed by Stovall.  Because the summary judgment was a final judgment, see Rule 54(b), Ala. R. Civ. P., it also made appealable the trial court's December 17, 2002, dismissal of Turner's third-party complaint.  Stovall appealed the summary judgment in favor of Turner; Turner appealed the dismissal of its third-party action against Penwal.
HOLDING:  The Supreme Court affirmed the judgment in Stovall's appeal and reversed and remanded in Turner's appeal.  (1) The Court held that Stovall failed to produce substantial evidence indicating that Turner reserved the right to control how Elee and his fellow painters used the lighting and failed to provide substantial evidence showing that Turner owed any duty to provide the painters adequate lighting.  The Court noted that the very essence of the contractor/subcontractor relationship hinges on the contractor's allowing the subcontractor to do his work without interference.  The Court concluded that the mere fact that Turner contracted to provide Penwal employees with lighting in no way translates into an automatic reservation of control over how that lighting is used.  (2)_ The Court held that "general administrative responsibility for company-wide safety" is insufficient to find liability for failure to provide a safe workplace.  The Court concluded that none of Stovall's allegations constitute substantial evidence indicating that Turner exercised any control over the painters' employment and, therefore, Turner owed Elee no duty to provide a safe workplace.  (3) The Court denied that any work done by Elee on the night of his death constituted "intrinsically dangerous" work.  The Court concluded that painting from a ladder is simply not dangerous work, so long as the most rudimentary care is taken.  (4) The Court held that there was no substantial evidence indicating that Turner undertook to inspect the premises.  (5) As to the third-party claim, the Court noted that it is possible that Turner could present a set of facts showing that it has incurred some out-of-pocket costs.  It noted that under Alabama law, Turner is due to be indemnified for any legal costs it has incurred. The Court therefore reversed the trial court's judgment of dismissal.)
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• Dan Wachtel Ford, Lincoln, Mercury, Inc. v. Modas,

No. 1022087 (Ala. Apr. 9, 2004)
(arbitration; existence of a contract to arbitrate; interstate commerce; voidness of contract; scope of arbitration agreement; On October 4, 2001, Tania Modas entered into a contract to purchase a 1999 Ford Explorer sport-utility vehicle from Dan Wachtel Ford.  She traded in her 1999 Mercury Cougar automobile and signed a retail installment contract that named Fairlane Credit, L.L.C., as the lienholder of the Explorer.  She also signed a separate document entitled "Arbitration Agreement," a document entitled "Sold Vehicle" (referred to by the parties as a "delivery receipt"), and other documents necessary to complete the transaction (title applications, warranty disclosures, credit application, etc.).  Modas left her Cougar with Dan Wachtel Ford and drove away from the dealership in the Ford Explorer.  According to Modas, Dan Wachtel Ford later contacted her to inform her that she needed to return to the dealership to complete more paperwork.  On October 5, 2001, Modas returned to the dealership and signed another retail installment contract.  This second retail installment contract included a $1,500 charge for an extended service plan and listed Ford Motor Credit Co. as the lienholder.  Modas again left the dealership in the Ford Explorer.  Modas alleges that a month later she had not received a payment book from Ford Motor Credit and that she telephoned Ford Motor Credit inquiring where she should send her payments.  She learned that Ford Motor Credit had declined her credit application and that her credit application had been returned to Dan Wachtel Ford.  Modas notified Dan Wachtel Ford that she had learned from Ford Motor Credit that her credit application had been denied; the dealership then attempted to sell Modas another vehicle, older than the Explorer, on which it believed she could obtain financing.  Modas refused to accept the older vehicle and requested that Dan Wachtel Ford return the 1999 Cougar to her.  According to Dan Wachtel Ford, Modas's Cougar had been sold.  Modas then offered to make payments on the Explorer to Dan Wachtel Ford but Dan Wachtel Ford refused to accept those payments, claiming that the denial of her credit application had rendered the retail installment contract void.  Modas insisted she would not return the Explorer until Dan Wachtel Ford returned her Cougar.  Dan Wachtel Ford had the Explorer repossessed and initiated criminal charges against Modas for theft by deception.  Modas was arrested in Lauderdale County and was transported to the Limestone County jail, where she was held until she could post bond.  The Limestone Circuit Court eventually nol-prossed the criminal charges against Modas.  On May 21, 2003, Modas sued Dan Wachtel Ford in the Lauderdale Circuit Court.  In her complaint, she alleged conversion of her 1999 Cougar, trespass to her personal property, malicious prosecution, and abuse of process.  Dan Wachtel Ford filed a motion to transfer the action to the Limestone Circuit Court and a motion to compel arbitration of Modas's claims.  The motion to transfer was granted.  Modas opposed the motion to compel arbitration.  She argued that Dan Wachtel Ford had not established the existence of a contract between the parties because, she argues, the documents she signed as part of the purchase provided that the contract would be void if Dan Wachtel Ford could not obtain financing for her purchase.  In support of her argument,  Modas relied upon the express language of the retail buyer's order, the retail installment contract, and the delivery receipt.  She also argued that even if the stand-alone arbitration agreement were binding, her claims fell outside the scope of that agreement.  The trial court denied Dan Wachtel Ford's motion to compel arbitration by a notation on the case action summary.  The trial court stated no reasons for its order.
HOLDING:  The Supreme Court reversed.  The Court held that, based on the express language of the various documents, the retail installment contract became void when Dan Wachtel Ford was unable to obtain financing, but the remainder of the parties' agreement, which consists of the buyer's order, the delivery receipt, and the stand-alone arbitration agreement, remained in effect.  Accordingly, the Court concluded that Dan Wachtel Ford met its burden in establishing the existence of a contract calling for arbitration.  The Court also concluded that the parties' transaction affected interstate commerce.  The Court held that the contract was not void due to the failure to obtain financing, but only the retail installment contract was void.  The Court found that Dan Wachtel Ford and Modas agreed that, upon the failure of finding a financing source, Modas either would pay cash for the Explorer or would return it.  The Court also held that the scope of the arbitration agreement was broad enough to encompass the plaintiff's claims.)
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Opinions Released April 2, 2004

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

 
• Ex parte McCord-Baugh,

No. 1011067 (Ala. Apr. 2, 2004)
(equal protection of the laws; pay differences for similarly situated public employees; scope of review on certiorari for alternative ground to affirm; In November 1989, the Birmingham City Board of Education hired the plaintiff as a "special-projects coordinator."  She signed a one-year employment contract, but continued employment thereafter and became tenured in 1992.  The same year, the Board transferred her to Parker Community School to replace the "community-school coordinator" for Parker, and since then, she has performed the  duties of a community-school coordinator.  She supervises the same number of employees as any other community-school coordinator and prepares the same community educational program as any other community-school coordinator.  Her service area is comparable to the other community-school coordinators' service areas.   The plaintiff's performance evaluations identify her position as a "Coordinator" in the division titled "Parker Community School." Before her transfer in 1992, an organizational chart showed 11 community-school coordinators.  After her transfer to replace one of  them, organizational charts continued to show 11 community-school coordinators.  The Birmingham Public Schools Directory identifies the plaintiff as the "Coordinator" at  Parker, precisely as it lists other community-school coordinators at  their respective Community Schools.   Likewise, a printout of employees for Parker shows her as the "Coordinator" of that school.  In a 1994 letter to the senior assistant superintendent, personnel division, Peggy Sparks, then director of the Community Education Department of the Birmingham Public  Schools, identified the plaintiff as "an eleven month special projects coordinator" and as  "coordinator of Parker Community School."  In a 1997 letter to the Board's superintendent, the acting director of the  Community Education Department, stated that the plaintiff, a special projects coordinator,  had a different salary arrangement than "regular Community School Coordinators."  In December 1998, the plaintiff wrote a "Personnel Specialist" with the Birmingham  Public Schools a letter requesting a salary adjustment to be paid according to the salary  schedule for a community-school coordinator.  In  March 1999, Dr. Sparks, then senior  executive director of Parent, Community, and Student Support Programs, wrote the  superintendent of the Birmingham Public Schools a letter stating that she had transferred  the plaintiff " to a program assistant slot at Parker for Zone I, yet continued her same salary  and job description." The plaintiff sued the Birmingham City Board of  Education, the superintendent of education of the  Birmingham City Schools, and the individual members of  the Board of Education.  She alleged that defendants violated the  plaintiff's right to the equal protection of the laws as  guaranteed by the U.S. Constitution's Fourteenth Amendment. because she was being paid  less, 'a different salary arrangement,' than other similarly situated  community school coordinators. .  She asserted  that the dissimilar treatment of her -- the continuing  refusal to pay her equally -- was arbitrary and  capricious and was not rationally related to any  legitimate governmental purpose.  The trial court granted summary judgment for the defendants, and the Court of Civil Appeals affirmed.
HOLDING:  The Supreme Court reversed.  (1)  The Court reversed the grant of summary judgment for the defendants, by a vote of 6-3 in several opinions.  The Court of Civil Appeals erred in holding that the defendants have shown legitimate, nondiscriminatory reasons for their decision not to pay the plaintiff as a  community-school coordinator.  The Court noted that the text of the Fourteenth Amendment prohibits all denials of equal protection, and did not bar, on its face, those motivated by an impermissible animus.  It canvassed the interpretations of the U.S. Supreme Court decision in Village of Willowbrook v. Olech,  528 U.S. 562 (2000), a reversal of a trial judge's dismissal pursuant to Fed.R.Civ.P. 12(b)(6), by various U.S. Circuit Courts of Appeal. In Olech, the U.S. Supreme Court ruled that a complaint alleging only intentional discriminatory treatment that is irrational and wholly arbitrary is sufficient to state a claim for relief under  traditional equal-protection analysis.  The Olech decision is known as a case involving a "class of one" because it does not contain an allegation of  intent to discriminate against her on the basis of a suspect class, such as race, gender, or religion.  (2) The Court ruled that the plaintiff's complaint was sufficient to defeat the summary judgment because the Board did not provide evidentiary material establishing a rational basis for the defendants' treating the plaintiff differently from other coordinators.  Defendants' motion for summary judgment did not challenge plaintiff's allegations that the continuing refusal to pay her equally was arbitrary, capricious, and not rationally related to any legitimate governmental purpose.  Thus, the motion for summary judgment did not shift any burden to the plaintiff  to produce her evidence supporting these allegations.  The Court rejected the need for plaintiff to articulate an impermissible motivation in his complaint or in opposing the motion for summary judgment presented here.  (3) The Court refused to affirm on the alternative ground that the statute of limitations barred plaintiffs claims.  The Court of Civil Appeals had expressly rejected this basis judgment in favor of defendants. Defendants had not filed their own petition for certiorari and the Court therefore declined to address it.  But the Court remarked that the refusal neither invited nor foreclosed a ruling for defendants on this ground in further proceedings.)
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• Shiv-Ram, Inc. v. McCaleb,

No. 1012112 (Ala. Apr. 2, 2004) (on application for rehearing)
(The Business Council of Alabama, Alabama Bankers Association, Alabama Civil Justice Reform Committee, and Automobile Dealers Association of Alabama, Inc., jointly filed a brief on application for rehearing as amici curiae and urged some of the same arguments Shiv-Ram presented in its rehearing brief.  The Court denied the application for rehearing.  However, with respect to a concern of amici curiae that our original opinion might be susceptible to misinterpretation on a particular issue, and their request that this Court clarify that issue so as to remove that concern, the Court deemed it appropriate to furnish the requested clarification.  Amici curiae were apprehensive that the original opinion might be misconstrued as implying that the contractual right to inspect the premises and records prior to the closing -- to perform 'due diligence -- could give rise to a duty or obligation on the part of a purchaser to inspect.  The Court provided the requested clarification, by confirming that the issue whether contractual due-diligence rights gave rise to a duty in tort was not raised in this appeal; consequently, the Court did not hold, implicitly or otherwise, that such a duty exists.)
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--(The original opinion released December 30, 2003, in Shiv-Ram is also available on the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

• Montgomery Beverage Co. v. Norris,

No. 1020815 (Ala. Apr. 2, 2004)
(The Court dismissed the permissive interlocutory appeal on the ground that, in light of the Court's opinion in Byrd v. Dillard's, Inc., No. 1021439 (Ala. Apr 2, 2004), the trial court's order denying the motion for a partial summary judgment in this case no longer "involves a controlling question of law as to which there is substantial ground for difference of opinion.")
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• Ex parte Byrom,

No. 1021113 (Ala. Apr. 2, 2004)
(workers' compensation; causation; injury from lightning strike while on job; Byrom was the service manager of one of the automotive service and repair shops operated  by Ceasco.  Byrom worked six days per week.  Monday through Friday he usually worked  from 8:00 a.m. to 6:00 p.m., and on Saturday he worked from 8:00 a.m. to 5:00 p.m.  He  usually worked 50 to 60 hours per week. Byrom's duties as service manager included opening and closing the shop, handling all  customer relations, supervising service and repair work, diagnosing automotive problems,  and occasionally assisting with oil changes, tune-ups, and "brake work."  He spent at least  30% of his workday talking on the telephone with customers, other managers, vendors, and  supervisors.  Typically, Byrom answered about 100 telephone calls per day.  He also used  the telephone to check on the availability of parts, to order parts, to call about outstanding  accounts, and to solicit service work from owners of large automobile fleets.  Accordingly, Byrom spent about  15 to 18 hours per week talking on the telephone. Most of his time on the telephone he spent ordering parts.  No other employees ordered  parts. On July 24, 1998, the weather was stormy, with rain, thunder, and lightning.  About 3:30  p.m., while leaning against a metal table in the office, Byrom was talking on a corded  telephone to Doug Benson, the manager of the Ceasco shop in Cullman.  While Byrom  was talking on the telephone,  William Brosch, an employee in the shop managed by  Byrom, heard a clap of thunder and a split second later heard Byrom yell.  Looking around  the car he was working on, Brosch saw Byrom drop the telephone, grab his ear, and walk  in circles. According to Brosch, after Byrom walked around once or twice in a circle, Byrom's legs  were shaking so much that he sat on the floor, where he sat rocking back and forth while  holding his ear.  Shop employees asked Byrom whether he was all right.  He said he was  nauseous.  He was taken to the bathroom, where he vomited.  Because his heart was  fluttering, he decided he needed to go to the hospital.  One of the shop employees drove  Byrom to the emergency room of a hospital.  Byrom has little memory of July 24, 1998.  He recalls talking on the telephone to the  Cullman store manager.  Byrom's next recollection is waking up on the floor.  He recalls  feeling severe pain in the left side of his body and  going to the hospital.  He does not  recall yelling or walking in circles.  He does not recall hitting his head but does recall  severe pain in his head.  After he returned to work,  shop employees showed him where he  was sitting when they found him.  He was six feet away from the telephone.  They told him  that he was thrown six feet from where he had been talking on the telephone.  Subsequent  to Byrom's injury, because of a continual buzzing noise, the telephone he had been using  had to be replaced with another telephone.   John B. Riser, a neurologist, was selected by the employer as an approved treating  physician and first examined Plaintiff on February 1999.  Dr. Riser diagnosed Plaintiff  as presenting with post-concussion syndrome with associated headaches and short-term  memory loss and concluded that he had suffered an injury to his spinous process at the C-2  level. Riser concluded that the cause of his symptomatology and neurological problems  were related to the lightning strike on work in July 1998. Riser also agreed that the headaches, short-term memory loss, and the blacking out were the major symptoms of the  post-concussion syndrome and that they were all related to the lightning strike.  The trial court concluded that Byrom was permanently and totally disabled under the Workers' Compensation Act and awarded benefits accordingly.  The Court of Civil Appeals reversed the trial court and concluded that Byrom was required to present to the trial court evidence from which it could determine that the worker's employment exposed him to a risk of being struck by lightning materially in excess of the risk of being struck by lightning to which people are normally exposed in their everyday lives.
HOLDING:  The Supreme Court reversed the Court of Civil Appeals.   (1)  The Court held that the event causing Byrom's injury was an "accident" as defined by § 25-5-1(7), and further the accident "arises out of" his employment, as referenced in Ala. Code §25-5-31. The Court held that the Court to Civil Appeals erred in ruling otherwise.  (2)  The Court distinguished its previous decision in American Fuel & Clay Products Co. v. Gilbert, 221 Ala. 44, 127 So. 540 (1930), where the Court reversed a trial judge whose facts did not support his conclusion as to the result. In Gilbert, there was a lightning strike of a guy wire securing a sign to the top of a building, a place of  employment, traveled the guy wire to its attachment place on the roof of the building,  burned a hole in the roof at that place, entered the building, and struck and killed the nearest employee.  The trial court had found that the place and conditions were not necessarily dangerous in an electrical storm. By contrast, here, the trial court in the instant case did not find as a fact that the employee was not subject to a greater-than-ordinary risk of lightning-strike injury through his use of the corded telephone in the course of his employment.  To the contrary, the evidence is undisputed that the employee-plaintiff, to the exclusion of the employers' other employees, performed all of the ordering of parts for  the employer and that this work consumed most of the 15 to 18 hours per week of corded  telephone use. The only comparison evidenced by the record is this comparison between the plaintiff and  the employer's other employees.  The record contains no evidence of any class of persons  in the vicinity subject to a corded-telephone-lightning-strike risk equal or comparable to, or  greater than, the plaintiff's.  Therefore, the record supports the conclusion that the plaintiff's employment subjected him to a risk of injury not common to the only class  addressed by the parties and the trial court and that this greater-than-common risk did, in  fact, cause the plaintiff's injury.)
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• Byrd v. Dillard's, Inc.,

No. 1021439 (Ala. Apr. 2, 2004)
(employment; age discrimination; Alabama Age Discrimination in Employment Act; statute of limitations;  Certified Question from the United States Court of Appeals for the Eleventh Circuit: What is the applicable limitations period for a claim brought under the Alabama Age Discrimination in Employment Act, Ala. Code §25-1-20 through §25-1-29 (the "AADEA")?  Gerda Byrd began working for Gayfer's Department Store in Tuscaloosa, Alabama, in 1975. In August 1998, Dillard's, Inc. ('Dillard's' or the 'Company'), purchased the Tuscaloosa store, but continued to employ its existing workforce. For the five years preceding the buyout, Byrd held the position of office and credit manager. Dillard's offered no such position within its organizational structure, but placed her in an assistant area sales manager ('AASM') position in order to keep her at the same rate of pay. Shortly thereafter, however, Byrd learned from Richard Lucas, also an AASM, that the store was eliminating AASM positions and that the store had no intention of ever employing AASMs again.  In May 1999, as part of its restructuring, Dillard's offered Byrd an opportunity to sell cosmetics on the sales floor. She declined, however, because she saw lagging store sales as a bad sign for commissions in that department. Moreover, Byrd feared that she would eventually be terminated for failing to reach sales-per-hour goals. Rather than risk termination, Byrd considered her other options. As a manager with her position being eliminated, she was entitled to fill another managerial position in the store or take severance pay. She opted for the latter. Dillard's approved her severance request in May 1999, and she left in the same month. In all, Byrd received forty-seven weeks of severance pay.  On June 8, 1999, Byrd spoke to Andy Poole, operations manager at Dillard's, who told her that the company instructed him to hire two new AASMs.  Byrd recorded her reaction to this news in some typewritten notes stating, in part, "I was lied to!!! As soon as I find out there are two new AASM[s] in place[,] I will file a lawsuit against Dillard[']s. This lawsuit will be for [a]ge discrimination and [w]age discrimination."  In September 1999, a younger female  applied for an AASM position at the Tuscaloosa store, and was hired a month later. Byrd heard Poole say that the new AASM was "young and pretty," and that he "had to hire her."  Byrd filed her administrative charge with the EEOC on February 24, 2000. In December 2000, Byrd and the other plaintiffs filed a complaint in federal court, alleging claims under the federal Age Discrimination in Employment Act ("ADEA") and the Alabama Age Discrimination in Employment Act ("AADEA").  Dillard's filed a motion for summary judgment as to the claims of Byrd and the other plaintiffs.  The Company argued that Byrd's claim was time-barred because Byrd failed to file her EEOC charge within 180 days of any alleged act of discrimination. Dillard's argued that her state discrimination claim was also time-barred because the AADEA simply adopted the ADEA's limitations period.  The Company argued that Byrd's claim was time-barred because Byrd failed to file her EEOC charge within 180 days of any alleged act of discrimination. Dillard's argued that her state discrimination claim was also time-barred because the AADEA simply adopted the ADEA's limitations period.  The district court granted the Company's motion for summary judgment as to all of Byrd's claims. It found that Byrd had reason to believe she had suffered age discrimination before the 180 days preceding her EEOC charge. Specifically, the district court found that her pre-resignation discussions with co-workers and her June 8, 1999, discovery of the reinstatement of the AASM position were sufficient to start the running of the statute of limitations. In addition, the court found that the AADEA's statute of limitations was, at most, 180 days because the language of the statute mirrored that of the ADEA. Thus, the court held that Byrd's AADEA claim was also time-barred.  Byrd appealed to the Court of Appeals for the Eleventh Circuit.  That Court reversed the district court's determination that Byrd's claim under the federal ADEA was time-barred.  Specifically, the Court of Appeals held that the 180-day limitations period for filing a charge with the EEOC was subject, under federal law, to "equitable tolling" because Byrd did not have sufficient knowledge of Dillard's alleged discriminatory action to file a claim within the 180-day time limit.  Regarding Byrd's claim under the the AADEA, the Court noted that because the ADEA's statutes of limitations are intertwined with its administrative requirements, it was difficult, if not impossible, to transfer them to the AADEA.  It therefore certified the question of the AADEA's statute of limitations to the Supreme Court of Alabama.
HOLDING:  The Supreme Court noted that because the AADEA states that the "statutes of limitations," in its plural form, "shall be the same as those authorized by the federal Age Discrimination in Employment Act except that a plaintiff shall not be required to pursue any administrative action or remedy prior to filing suit under this article," the use of the plural "statutes of limitations" should be given meaning.  As such, the Court held that (1) if a plaintiff files an AADEA claim in a state court within 180 days from the occurrence of the alleged unlawful practice, the applicable limitations period for filing a charge with the EEOC, then that plaintiff's claim is timely; and (2) if a plaintiff files a charge with the EEOC within 180 days from the occurrence of the alleged unlawful practice and thereafter receives notice that the EEOC has dismissed the charge, then that plaintiff's AADEA claim filed in the state court within 90 days after the EEOC's notice of dismissal of the charge is timely.
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Opinions Released March 26, 2004

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  MARCH 26, 2004

 
• Ex parte Georgia Farm Bureau Mut. Auto. Ins. Co.,

No. 1011899 (Ala. Mar. 26, 2004)
(personal jurisdiction; In 1999, the plaintiff Donald Johnson, while riding as a guest passenger in a  car owned and operated by an Alabama resident ("the owner-operator"), was injured in a one-car accident in Randolph County, Alabama ("the accident").  The parties agree that the accident was proximately caused by the simple negligence of the owner-operator. Although the owner-operator's liability insurance covered him for the accident, the owner-operator's insurer declined to compensate Johnson for his injuries on the ground that the application of the Alabama guest-passenger statute, Ala. Code §32-1-2, to Johnson's status as a guest in the owner-operator's car relieved the owner-operator of liability to Johnson for simple negligence.  At the time of the accident, Donald Johnson resided in the household of his mother, the plaintiff Cynthia Johnson, in Carroll County, Georgia.  At that time, Cynthia Johnson maintained a policy of automobile liability insurance with Georgia Farm Bureau ("the policy"), which afforded Donald Johnson uninsured-motorist coverage.  However, when Donald Johnson claimed uninsured-motorist benefits under the policy for the injuries he sustained in the accident, Georgia Farm Bureau denied his claim on the ground that Georgia law (Ga. Code Ann. §33-7-11) conditions a party's recovery of uninsured-motorist benefits on that party's first obtaining a judgment against the tortfeasor.  After Georgia Farm Bureau denied Donald Johnson's claim, Donald and Cynthia Johnson sued Georgia Farm Bureau for breach of contract in the Randolph Circuit Court.  Georgia Farm Bureau then moved to dismiss the lawsuit on the grounds that the trial court did not have in personam jurisdiction over Georgia Farm Bureau and did not constitute a proper venue for the case.  Georgia Farm Bureau supported the motion with an affidavit of a Georgia Farm Bureau employee attesting that Georgia Farm Bureau was a Georgia corporation.  He further attested that Georgia Farm Bureau did not employ agents in Alabama, did not solicit business in Alabama, and did not sell insurance to residents of Alabama.  The trial court denied the motion to dismiss without stating a rationale.  Georgia Farm Bureau then moved the trial court to certify the interlocutory order denying the motion to dismiss in accordance with Rule 5, Ala. R. App. P., so that Georgia Farm Bureau could petition this Court for an interlocutory appeal of that order.  The trial court did not certify the order within 28 days after denying the motion to dismiss.  Georgia Farm Bureau then petitioned this Court for a writ of mandamus directing the trial court to dismiss the case.
HOLDING:  The Supreme Court granted the petition for writ of mandamus.  While Georgia Farm Bureau could well have anticipated that Georgia residents who purchased Georgia Farm Bureau policies in Georgia would enter Alabama and suffer traffic accidents here, the Court held that these Alabama events would not be the acts of Georgia Farm Bureau.  The Court held that while the Georgia Farm Bureau Web site could be accessed, and the weekly television show could be received, by Alabama residents, the evidence does not establish that, by either the Web site or the television show, Georgia Farm Bureau "purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws," or "purposefully avail[ed] itself of the benefits of an economic market in the forum State.")
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• Williford v. Emerton,

No. 1020616 (Ala. Mar. 26, 2004)
(breach of mobile-home lease-purchase contract; conversion; preserving error; punitive damages; Batson challenges; attorney's conflict of interest; This is a trailer park dispute.  Plaintiffs purchased a mobile home from defendant under a lease-to-own plan.  At the same time, Plaintiffs entered a lot rental agreement.  A few months later, the plaintiffs upgraded their mobile home, and entered an identical contract but for a change in the amount of their monthly payments and the amount financed.  The next month, plaintiffs could not meet their monthly payment, then amounting to $325.  On November 23, placed on the door of  the mobile home a "Notice of Termination of Tenancy/Lease."  The notice warned the plaintiffs that if they  did not surrender possession of the mobile home within 10 days they would face  legal action.  On December 1, the defendants placed a second, identical "Notice of Termination of  Tenancy/Lease" on the door of the mobile home.   On December 11, the plaintiffs returned to the mobile home with a truck to move their personal  belongings out of the home.  When they arrived, they saw that the door had been removed and the defendants were inside.  One of the defendants  allegedly became angry and told them they had 10 minutes to get everything out  of the home before he telephoned the police.  Plaintiffs claim that they then gathered what they could in 10 minutes and left, leaving many of their possessions in the mobile home.
HOLDING:  (1) As to an ambiguity about the due date for rental payments due under a lease purchase agreement, which provided payments were due "on the same day of each month," the Supreme Court upheld the jury verdict for the purchaser, despite evidence  at the due date was determined by a lot-rental contract with a specific due date, and an amortization schedule which provided for monthly payments being due on the first day of the month.  The Supreme Court noted that the ambiguous lease purchase agreement had a merger clause, and therefore regarded the request to grant JML as a proposal for it to substitute its judgment for that of the jury.  It refused to conclude, as a matter of law, that there had been no breach of contract.  (2) The Court refused to consider the argument that the $25,000 compensatory damages award on the breach of contract claim was unsupported by the evidence.  Defense counsel had stated at the close of all the evidence that the only motion he wanted to renew was for directed verdict/ JML on the conversion.  So stated, the Court ruled his motion did not implicate the breach of contract claim. (3) The Court affirmed an award of $8,000 in compensatory damages for conversion claim.  There was evidence of only $2,180 in actual damages.  The Court accepted the argument that the remaining amount of $5,820 can be attributed to the mental anguish associated with the loss of items with sentimental value, including wedding gifts and wedding photos.  (4) The Court remanded the judgment for punitive damages of $350,000 to require the trial court to issue a statement of the reasons for denial of the post-trial motion styled "Motion to Review and Conduct Hearing or Receive Additional Evidence or Both on Punitive Damage[s] Award," in accord with the Hammond line of decisions.  The trial court's one paragraph denial in which it recited having taken testimony, heard argument from counsel and received exhibits and caselaw, was not deemed to satisfy the written statement requirement.   A return to the Court on the remand was required within 56 days.  (5)  The Court rejected the Batson claim.  The only argument made was that the impaneled jury consisted of  1 white juror and 11 black jurors. The trial court properly determined that this did not reflect a prima facie case of discrimination, as it relied on "numbers alone." Thus, the argument did not require explanation by race-neutral articulation of reasons for the strikes made.  (6) The Court rejected argument that the trial court should have disqualified both of plaintiffs' trial counsel.  One was dismissed, after voir dire, because of claims that he consulted with the defendants about representing them at one time in the past, though it was not clear that it related to the present case.  As for the other, defendants sought an imputed disqualification. The Court found that defendants waived any right to disqualify the other by  not objecting to continuing the trial.  It was not enough to indicate no intention to waive objection, and after further discussions, indicate no problem with the continuing the trial, despite the appearance of the lawyer with whom consultation had occurred.)
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• City of Huntsville v. Rowe,

No. 1020868 (Ala. Mar. 26, 2004) (on application for rehearing; withdrawing and substituting the opinion of October 31, 2003)
(condemnation; easement; valuation; The City of Huntsville ("the City") condemned a portion of property owned by Roland H. Rowe, as trustee of the Dimitriu Family Trust, and Elvina Geauque ("the owners") to secure an easement for constructing, maintaining, repairing, altering, replacing, or removing an underground sanitary sewer line, and erecting manholes on the surface.  The easement is a 40-foot-wide strip, comprising 3.624 acres of a 290.19-acre tract of unimproved land.  The probate court awarded the owners compensation for the property taken for the easement.  The owners appealed the probate court's award to the Madison Circuit Court for a jury trial on the issue of damages pursuant to Ala. Code §18-1A-283.  The owners moved for a partial summary judgment in the circuit court, asking the court to determine the proper method of valuing, under Ala. Code §18-1A-170(b), the property taken for the easement.  Section 18-1A-170(b) provides:  "If there is a partial taking, the valuation rule is the difference between the fair market value of the entire property before the taking and the fair market value of the remainder after the taking."  More specifically, the owners sought a judgment declaring "that the taking of an easement must be valued as if the entire fee is taken," and an order prohibiting the City from contending or testifying at trial "that the damage[s] to be awarded the property owner for the land actually taken within the easement are less than the value of the entire fee of said land within the easement at the time of the taking."  The trial court granted the owners' motion.  At trial, the owners moved in limine for an order prohibiting the City's appraisal experts from testifying in a manner inconsistent with the partial summary judgment.  In other words, the owners sought to preclude testimony that the value of the 3.624 acres constituting the easement after the taking was greater than $0.  The trial court granted the motion.  Before the jury returned its verdict, the City's appraisal expert made an offer of proof that the value after the taking was 75% of the value of the land before the taking.  The jury awarded the owners $68,856.  The trial court entered a judgment on that verdict.  The trial court denied the City's motion for a new trial, and the City appealed, specifically challenging the partial summary judgment and the order on the motion in limine.
HOLDING:  The Supreme Court affirmed.  The Court noted that in cases such as this one, where the scope of the easement is so sweeping as to be the equivalent of the taking of fee-simple title to the property, a trial court can decide, as a matter of law, from the four corners of the deed granting the easement and the condemnation order or orders that the condemnation constitutes a complete taking.  The Court held that, in light of the sweeping, pervasive taking of the owners' property authorized by the condemnation order, particularly its broad reservation of future rights, the trial court properly deemed the easement to be the equivalent of the taking of fee-simple title to the entire 3.624 acres constituting the easement.  The Court held that the trial court  therefore properly entered the summary judgment in favor of the owners.
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--(The original withdrawn opinion released Oct. 31, 2003, in Rowe is available on the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

• Ex parte Carter,

No. 1021227 (Ala. Mar. 26, 2004)
(criminal; challenge to jury instruction on circumstantial evidence; "constructive possession" of controlled substance; prejudice; In November  2000, Lawrence County law enforcement officers executed a search warrant at the residence of Margaret O.  Deputy John Charest testified at trial that he was the "point man" on the entry team that executed the search warrant.  He testified that, upon entering the house, he saw two people sitting on a couch, one of whom was  the defendant, Floyd Carter.  Charest testified that he saw Carter jerk his  hand from in front of his body and place his hand behind a cushion on the couch. Charest admitted that Carter's hand was balled up in a fist and that he could not see  what, if anything, Carter had in his hand.  Charest told Investigator Chris Proctor  what he had seen.  Proctor relayed the information to agent Will Jones, who was  conducting the search.  Jones later recovered a plastic bag containing cocaine from  the place on the couch where Charest had seen Carter place his hand.  Jones arrested Carter.  A search of Carter's person incident to his arrest revealed that  Carter had in his possession over $1,600 in cash.
HOLDING:  The Supreme Court affirmed.  (1)  The Court held that the trial court's instruction, set out in the decision, was sufficient on the subject of circumstantial evidence. In a criminal  case in which all of the evidence is circumstantial, a jury instruction is proper if it  states the elements of the crime, explains how the jury should evaluate the  evidence, and instructs the jury that it can convict the defendant only if the jury  finds that the State has proved each element of the crime beyond a reasonable doubt and the State has disproved the defendant's presumption of innocence beyond a reasonable doubt.  Also, Carter was not prejudiced by the refusal to give his proposed charge on the "knowledge" part of constructive possession, as the import and intent of the requested charge was conveyed, in accord with Ala. Code § 12-16-13.  (2) The Court held that, to the extent of any conflict, the following cases are overruled: Thomas v. State,  824 So.2d 1 (Ala. Crim. App. 1999); Davenport v. City of Birmingham, 570 So. 2d 1298 (Ala. Crim. App. 1990); Ex parte Williams, 468 So.2d 99 (Ala. 1985); and Howard v. State, 108 Ala. 571, 18 So. 813 (1895).)
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• Douglas v. King,

No. 1021360 (Ala. Mar. 26, 2004)
(probate administration; construction of statutory preferences; waiver of higher preference; requirement to file cross-appeal;  The Supreme Court reversed a probate court choice between competing applicants for letters of administration, as contrary to the order of preference established in Ala. Code §43-2-42.  The Court held that the post-death payment of a portion of funeral expenses and the contractual commitment to pay remainder qualified the brother of the intestate to letters of administration, in accordance with Ala. Code §43-2-42(b), as a "creditor" eligible to be found the "largest creditor of the estate."  The Court held that letters of administration could not be denied solely on the creditor status for funeral expenses which arose post-mortem.  The Court further held that the intestate decedent's sister, who was the guardian for his mentally retarded 18-year-old daughter residing in a home for unwed mothers, waived any statutory preference over a "creditor" that she might have.  She was held to have withdrawn her initial request for letters of administration as the "guardian" for the daughter.  In that withdrawal, she requested that King, the county administrator, be appointed.  However, the probate court granted the letters to King as an "other person," as provided in Ala. Code §43-2-42(b)(5).  The Court also noted that she had not reasserted her wish to be granted letters of administration within the 40 day period deadline for applications.  The "other person" also happened to be the county administrator, but he was appointed in this manner because the county administrator is not eligible in that capacity until 40 days have elapsed after the death.  The "creditor" brother had requested revocation of the letters issued to the "other person," and been refused by the probate court.  The Court also held that the sister was barred from arguing on appeal that she was due appointment merely because the probate court mistakenly rejected her status as guardian and required her to amend petition to name King as administrator.  The Court held that she had not filed a cross-appeal.)
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• Chandiwala v. Pate Constr. Co.,

No. 1021940 (Ala. Mar. 26, 2004)
(statute of limitations; construction; suppression, negligent installation, and negligent supervision; On August 11, 1992, Farook Chandiwala purchased a house constructed by Pate Construction Company ("Pate") and Dillard Plastering Company ("Dillard").  Dillard had applied an exterior insulation and finishing system ("EIFS") on the house when it was built.  Dryvit Systems, Inc., manufactured the EIFS.  EIFS, or "Dryvit," is a  multilayered exterior wall system consisting of a finishing coat, a base coat, mesh, and insulation board, all of which are secured to plywood or substrate mechanically or with an adhesive. On April 20, 1998, Action Exterminators, Inc. ("Action Exterminators"), the company that had issued a termite bond on the house, performed its annual inspection.  Chandiwala received a report from the April 20 inspection that contained a notice stating: "ALL CUSTOMERS: If there is any water rot or earth/wood contact, it MUST be corrected or area IS EXCLUDED and possible non-renewal next year." Chandiwala's inspection report revealed that there was improper Dryvit-to-earth contact that needed correction. Upon receipt of this inspection report, Chandiwala telephoned Action Exterminators on April 25, 1998.  Based upon his conversation with Action Exterminators, Chandiwala contacted numerous entities to inquire as to the details and costs of repairing the EIFS. One such person Chandiwala contacted was Ed Harris, who inspected the house on August 13, 1998, and reported that there were some moisture problems.  On May 1, 2000, over two years after he had received the termite-inspection report, Chandiwala sued Pate; Dryvit Systems, Inc.; Apache Products, Inc., the distributor of the EIFS; and "Troy Dillard d/b/a Dillard Plastering Company." Thereafter, on June 23, 2000, at Chandiwala's request, an EIFS inspection performed upon his house revealed several areas with moisture readings from 40-100 percent. Dryvit Systems, Inc., subsequently settled with Chandiwala, and Apache Products, Inc., was voluntarily dismissed from the action.  Pate and Dillard each filed motions for a summary judgment.  Chandiwala consented to the entry of a summary judgment in favor of Pate and Dillard as to all claims except suppression, negligent installation, and negligent supervision, and as a third-party beneficiary to a contract. The trial court entered a summary judgment in favor of both defendants on all claims, based upon the two-year statute of limitations,  Ala. Code §6-2-38(l).
HOLDING:  The Supreme Court affirmed.  The Court concluded that the limitations period on Chandiwala's claims began to run on April 25, 1998, when Chandiwala discovered that the EIFS on his house was not properly sealed and needed to be cut back.
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• Ex parte Osbon,

No. 1022082 (Ala. Mar. 26, 2004)
(attorney disqualification, Rule 1.7 of the Alabama Rules of Professional Conduct;  In this divorce action, the husband's attorney issued a subpoena to the Cullman Area Mental Health Authority  ("CAMHA") seeking the  wife's  mental-health records.  In response, CAMHA, through its attorney, filed a motion for a protective order regarding the wife's records.  The husband's attorney and the CAMHA attorney are partners in the same law firm.  On the same day that the CAMHA attorney filed the motion for the protective order, he also submitted a proposed protective order authorizing the release of the wife's mental-health records to the husband and his attorney. The trial court signed the proposed order.  The motion for the protective order and the proposed protective order were never served upon the wife or her attorney; the wife did not learn of the motion until the trial court had signed the protective order.  After the wife learned that the trial court had issued the protective order, she filed a motion to disqualify the  husband's attorney based on an alleged conflict of interest.  In response to her motion, the husband's attorney filed a general denial.  The wife then submitted  a request for admissions to the husband.  Those responses established that both attorneys were law partners.  The trial court denied a motion to disqualify the husband's attorney.  The wife petitioned the Court of Civil Appeals for a writ of mandamus, and that court denied the petition.  The wife then filed a petition for writ of mandamus with the Supreme Court. 
HOLDING:  The Supreme Court granted the petition and ordered the circuit court to disqualify the husband's attorney from further participation in the divorce action. (1) The Court held that mandamus is the proper procedure for obtaining review of denial of a motion to disqualify an attorney.  (2) The Court held that Rule 1.7 regulates the conflict of interest of an attorney and that an attorney's opposing a subpoena issued by his law partner for a client is "directly adverse" to the issuing party.  A subsequent agreement to a protective order does not vitiate the adverseness, and there is no evidence of consent of the adverse clients, as allowed by Rule 1.7(a)(2).  Neither the husband's attorney nor the CAMHA's attorney in the same firm can reasonably believe that their relationships with their clients would not be "adversely affected" by their respective positions in the divorce action.  Thus, the condition to allowing the representation as set out in Rule 1.7(a)(1) also could not be satisfied.  (3)  The Court rejected any claim that the husband is entitled to review the records, regardless of who is the attorney for the original holder of the medical records.  The wife's reference to her mental health in her alimony request did not establish an absolute right for the husband to examine her medical records.  Gaining authority to undertake the examination depends on a number of factors, and these factors include whether their importance to the proceeding outweighs the wife's right to keep the records private under HIPAA, Pub. L. 104-191, or under the psychotherapist-patient privilege of Ala. Code §34-8A-21.)
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• Ex parte Moody,

No. 1022151 (Ala. Mar. 26, 2004)
(criminal; capital murder; The Supreme Court denied the petition for writ of certiorari without opinion.  Justice Johnstone wrote a concurring opinion questioning several aspects of the analysis of the Court of Criminal Appeals of the legality of the death sentence.)
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Opinions Released March 19, 2004

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  MARCH 19, 2004

 
• Richardson v. Terry,

No. 1011702 (Ala. Mar. 19, 2004)
(education; employment; teacher tenure; waiver; In March 2000, the Bessemer Board of Education ("the Bessemer Board") requested that the State Board of Education assume control over the finances of the Bessemer Board. The State Board of Education authorized the State Superintendent to appoint a chief financial officer for the Bessemer School System under Ala. Code §16-6B-4, and the State Superintendent appointed Blake to that position.  The Bessemer Board voted to approve personnel changes that consisted of transferring James Jones, Karen Terry, and Tarus Lyons, who were tenured teachers, and non-renewing Maggie McCall, Jerry Dismuke, and Yohance Prioleau, who were nontenured teachers.  The tenured teachers were notified that the Bessemer Board had voted to transfer them, and the nontenured teachers were notified that the Bessemer Board had voted to non-renew them.  Jones and Terry then contested their putative transfers in accordance with Ala. Code §16-24-6 by filing a written demand for a hearing before the Bessemer Board.  At the hearing convened by the Bessemer Board on the contests filed by Jones and Terry, counsel for Jones and Terry informed the Bessemer Board that Jones and Terry intended to sue the Bessemer Board for a judgment declaring that the putative transfers of Jones and Terry were void because the local superintendent had not recommended the transfers as required by Ala. Code §16-24-5.  The Bessemer Board then voted to suspend the hearing pending that judicial determination.  Thereafter, Jones, Terry, Lyons, Dismuke, McCall, and Prioleau sued the defendants on the theory that these putative employment actions were unlawful.  Jones, Terry, Lyons, Dismuke, McCall, and Prioleau moved for summary judgments on their claims of unlawful employment action, and the defendants cross-moved for summary judgments on those claims.  Entering summary judgments for Jones, Terry, Lyons, Dismuke, McCall, and Prioleau on their claims of unlawful employment action and denying summary judgments for the defendants on those claims, the trial court held that both the putative transfers of the tenured teachers and the putative non-renewals of the nontenured teachers were void because they lacked the recommendation of the local superintendent. The trial court held also that the tenured teachers had not waived their claims by failing to appeal the putative transfers to the State Tenure Commission. In holding that the putative transfers of the tenured teachers were void, the trial court reasoned that the local superintendent's recommendation was required for the putative transfers by §16-24-5. In holding that the tenured teachers had not waived their claims by failing to appeal their transfers to the State Tenure Commission, the trial court reasoned that the Bessemer Board had not made an appealable "decision" within the meaning of §16-24-7 because the Bessemer Board had suspended the hearing on the contests filed by Jones and Terry before a final "decision" was made on the transfers. In holding that the putative non-renewals of the nontenured teachers were void, the trial court reasoned that the Bessemer superintendent's recommendation was required for the putative non-renewals of the nontenured teachers because the Bessemer Board, by customarily non-renewing nontenured teachers only upon the recommendation of the Bessemer superintendent, had adopted a policy that could not be amended without consulting with the  professional organization of the nontenured teachers in accordance with §16-1-30. The trial court made the summary judgments for Jones, Terry, Lyons, Dismuke, McCall, and Prioleau on their claims of unlawful employment action final judgments in accordance with Rule 54(b), Ala.R.Civ.P.  HOLDING:  The Supreme Court affirmed the summary judgments for the tenured teachers, Terry and Lyons.  The Court reversed the summary judgments for the nontenured teachers, Dismuke, McCall, and Prioleau.  The Court held that the transfers of the tenured teachers, Terry and Lyons, were void because they were not recommended by the local superintendent as required by §16-24-5.  The Court held that the trial court properly denied the defendants' summary judgments based on their affirmative defense of waiver.  The Court held that the trial court erred in entering summary judgments for the nontenured teachers on their claims that their putative non-renewals were invalid because the nontenured teachers failed to establish a prima facie case that the Bessemer Board could not deviate from its unwritten custom of non-renewing nontenured teachers only upon the recommendation of the local superintendent without first amending the custom in consultation with the professional organization of the nontenured teachers under §16-1-30(b).)
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• Culp v. Economy Mobile Homes, Inc.,

No. 1011759 (Ala. Mar. 19, 2004)
(motion to dismiss for failure to state a claim; piercing the corporate veil; In October 1999, Richard C. Culp, Sr., and Johnnie H. Culp and Economy Mobile Homes, Inc., executed a retail installment contract for the Culps' purchase of a mobile home manufactured by Free State Homes Manufacturing, L.L.C.  After the mobile home was delivered and set up, the Culps inspected the mobile home and found what they considered to be numerous defects.  The Culps sued Gregory D. Rustin individually and Rustin d/b/a Free State Homes Manufacturing, Inc., for violation of the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD").  They sued Rustin d/b/a Free State Homes Manufacturing, Inc., for fraudulent misrepresentation also.  The Culps specifically acknowledged the corporate entity of Free State Homes Manufacturing, Inc. However, they claimed that that entity was "a sham" used by Rustin to avoid "personal contract liability for express and implied warranties on the manufactured homes, and to avoid personal tort liability arising out of the defective construction of a manufactured home."  The Culps sued Free State Homes Manufacturing, L.L.C., and PFS Corporation for failing to perform their responsibilities under 24 C.F.R. §3280 and §3282 in inspecting the mobile home sold to the Culps.  The Culps also sued PFS Corporation for conspiring with Free State Homes Manufacturing, L.L.C., to affix Department of Health and Urban Development labels improperly to the allegedly defective mobile home the Culps had purchased from Economy.  Rustin individually; Rustin d/b/a Free State Homes Manufacturing, Inc.; and Free State Homes Manufacturing, L.L.C., moved to dismiss the complaint or, in the alternative, to compel the Culps to arbitrate their claims.  These three defendants also moved to dismiss the amended complaint.  The trial court heard argument on the motion to dismiss and subsequently granted the motion.  HOLDING:  The Supreme Court reversed the dismissal of the Culps' claims against Rustin individually, Rustin d/b/a Free State Homes Manufacturing, Inc., and Free State Homes Manufacturing, L.L.C.   The Court held that the trial court erred in dismissing the Culps' claims against Rustin individually and against Rustin d/b/a Free State Homes Manufacturing, Inc. because the Culps alleged that Rustin used Free State Homes Manufacturing, Inc., as a sham to avoid personal liability and, therefore, the Culps stated a claim to pierce the corporate veil of Free State Homes Manufacturing, Inc., and to impose  personal liability on Rustin personally.  The Court affirmed all other rulings appealed by the Culps.)
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• American Nat'l Red Cross v. ASD Specialty Healthcare, Inc.,

No. 1020446 (Ala. Mar. 19, 2004) (on application for rehearing)
(The Supreme Court overruled the application for rehearing without opinion.  Justice Houston wrote a dissenting opinion stating that the clear language of Ala. Code §7-2-314(4) does not allow the blood products in question here to be considered "property" under the Alabama Uniform Fraudulent Transfer Act.)
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--(The original opinion released Oct. 3, 2003, in American Nat'l Red Cross is also available at the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

• George v. Sims,

No. 1020456 (Ala. Mar. 19, 2004)
(jurisdiction of circuit court after final judgment; Barbara L. George owns a lot adjoining the property of Bobby Sims and Janice Sims.  In 1998, Barbara and her husband, Elvin George, filed an action against the Simses seeking, among other things, a declaration that the Georges owned an easement along the boundary line between their property and the Simses' property and an injunction preventing the Simses from interfering with the Georges' use of that easement.  The Simses filed an answer and a counterclaim alleging that the Georges had channeled water to flow onto the Simses property, causing damage.  The complaint was subsequently amended to join Rex Hopper and Louise Hopper as plaintiffs.  Subsequently, Jerry Williams and Kathy Ann Williams were permitted to intervene in the case.  Both the Hoppers and the Williamses own property adjacent to the Simses' property (Barbara George, the Hoppers, and the Williamses are hereinafter collectively referred to as "the plaintiffs")  After an ore tenus proceeding, the trial court, on March 31, 1999, entered a judgment that, among other things, established the permanent location of an easement along the common boundary line running between the Simses' property on one side and the properties of Barbara George, the Hoppers, and the Williamses on the other side.  The trial court's March 31 order did not reserve jurisdiction over the case.  Following the entry of the trial court's March 31, 1999, order, the parties began harassing one another.  The parties filed multiple motions in the trial court to hold each other in contempt for violating the trial court's March 31, 1999, order.  On March 23, 2000, the trial court noted in the case action summary that the road the parties had constructed in compliance with its March 31, 1999, order was in disrepair; that the Simses had placed a "trailer" dangerously close to the road, impeding traffic; and that insufficient attempts had been made to ensure proper drainage of water onto the Simses' property.  The trial court thus held the parties in contempt and ordered that they be fined and imprisoned unless certain steps were taken to improve the drainage, to maintain the road, and to remove the trailer.  After the trial court's March 23, 2000, order, the Simses filed a motion asking the trial court to again find the plaintiffs in contempt.  On January 2, 2002, the trial court conducted a hearing at which only counsel for the Simses appeared.  Subsequently, on May 10, 2002, the trial court issued an order, noting that the parties had apparently agreed to reduce the size of the easement.  The trial court therefore modified its March 31, 1999, order to decrease the size of the easement so that it extended seven and one-half feet on either side of the property line.  It also ordered the parties to reconstruct a road on the easement within 60 days.  The parties were required to maintain only that part of the road that fell on their side of the property line.  Barbara George then moved the trial court to set aside its May 10, 2002, order.  Specifically, she claimed that while the parties had discussed reducing the size of the easement, they had never entered into a written agreement; she also claimed that she had had no notice of the January 2, 2002, hearing.  On September 30, 2002, the trial court held a hearing at which counsel for all parties were present.  At the hearing, the trial court expressed frustration toward the parties for their total failure to comply with its orders and for their "animal[istic] behavior" toward each other.  After another hearing on October 18, 2002, the trial court on November 7, 2002, issued an order setting aside its May 10, 2002, order, and reinstating its March 31, 1999, order.  However, the trial court purported to modify the March 31, 1999, order to provide that the plaintiffs had a permanent easement of 15 feet on their side of the property line for their exclusive use and that the Simses had a permanent easement of 15 feet on the Simses' side of the property line for the Simses' exclusive use.  The parties were to be responsible for their own road on their own side and were given permission to build a fence along the centerline to separate the properties and the roads.  The plaintiffs appealed.  HOLDING:  The Supreme Court reversed.  The Court held that the trial court erred in attempting to modify the March 31, 1999, order, which was a final order that it was without jurisdiction to modify.)
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• Johnson v. Coregis Ins. Co.,

No. 1020983 (Ala. Mar. 19, 2004)
(underinsured-motorist insurance; workers' compensation; Jimmie Wendell Johnson was employed by the Cullman County Commission ("the Commission") to transport juvenile offenders to and from county detention facilities.  On September 19, 2001, while driving a vehicle owned by the Commission, Johnson was seriously injured in an automobile accident involving another driver, James Kimble Lovette.  At the time of the accident, Johnson was acting within the line and scope of his employment, and he collected workers' compensation benefits for his injuries.  At the time of the accident, the Commission had an automobile insurance policy with Coregis Insurance Company ("Coregis"); that policy provided underinsured-motorist insurance.  On November 25, 2002, Johnson sued Lovette and Coregis, seeking compensatory and punitive damages for injuries he sustained as a result of the accident.  Johnson also sought underinsured-motorist benefits under the Commission's automobile insurance policy with Coregis.  On December 30, 2002, Coregis filed a motion pursuant to Rule 12(b)(6), Ala. R. Civ. P., to dismiss Johnson's complaint as to it.  Coregis alleged that Johnson had failed to state a claim on which relief could be granted, and that Johnson was not entitled to benefits from the Commission's automobile insurer.  After a hearing, the trial court granted Coregis's motion and dismissed Coregis as a defendant.  In an order entered on January 30, 2003, the trial court held that Johnson's sole remedy for his injuries was a claim for workers' compensation benefits.  On February 25, 2003, Johnson filed a motion to dismiss his complaint against Lovette, asserting that he had settled his dispute with Lovette.  On the same day, the trial court filed its second and final order, which provided that an employee who is injured while driving his employer's vehicle as the result of the negligence of the other driver cannot recover from his employer's underinsured motorist insurance carrier even though he has collected worker's compensation.  Accordingly, the trial court granted Coregis's motion and dismissed Johnson's claims against Coregis.  The court further ordered that, upon Johnson's motion to dismiss his claims against the only remaining Defendant, Lovette, all other claims were dismissed.  Johnson appealed.  HOLDING:  The Supreme Court reversed.  The Court held that, assuming Johnson is covered by his employer's underinsured-motorist insurance policy, it saw nothing in the Workers' Compensation Act that would bar Johnson from recovering those insurance benefits to which he may be entitled.)
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• Ex parte State of Alabama (In re: State v. Bui),

No. 1030504 (Ala. Mar. 19, 2004)
(criminal; capital murder; use of State funds for defense counsel to travel to a foreign country to conduct an investigation of possible mitigating evidence; Quang Ngoc Bui was indicted in 1986 for capital murder; he was charged with killing his three minors.  He was convicted and sentenced to death on July 11, 1986.  Bui's conviction and death sentence were affirmed by the Alabama Court of Criminal Appeals and by the Supreme Court of Alabama.  The United States Supreme Court vacated the judgment and remanded the case for a hearing on a Batson v. Kentucky, 476 U.S. 79 (1986), issue.  On return to remand, the Court of Criminal Appeals reversed, but the Supreme Court of Alabama reversed the judgment of the Court of Criminal Appeals.  However, on Bui's petition for a writ of habeas corpus, the United States Court of Appeals for the Eleventh Circuit reversed his conviction and sentence and remanded the cause to the trial court for a new trial.  New counsel for Bui were appointed on May 13, 2003, and a new trial was set for January 24, 2004.  New defense counsel filed a motion for permission to proceed ex parte on applications for funds. Before the trial court ruled on this motion, defense counsel filed an ex parte motion for extraordinary funds in order to travel to Vietnam to conduct an investigation of possible mitigating evidence.  Without giving the State notice and an opportunity to respond, the trial court granted this motion for extraordinary funds.  Bui acknowledged in his ex parte motion for extraordinary funds that his former counsel had traveled to Vietnam to conduct an investigation for mitigation purposes during Bui's first trial.  The order authorized the defendant's two attorneys and a cultural expert to travel to Vietnam at the State's expense.  The State filed an objection to the motion, asking that the order be vacated and, alternatively, that the State be given an opportunity to be heard.  The trial court denied the State's objection without a hearing and without an explanation for its denial.  The State then filed a petition for a writ of mandamus with the Court of Criminal Appeals; that court denied the petition that same day, without an opinion.  The State then petitioned the Supreme Court of Alabama.  HOLDING:  The Supreme Court granted the petition for writ of mandamus.  The Court held that the State has no absolute right to a hearing on its objection and that an indigent defendant's showing of the need for funds must be made ex parte.  Nevertheless, under the circumstances here presented, the Court concluded that the trial court exceeded its discretion in not conducting a hearing at which the State could assert its objections, without compromising Bui's right to prevent the State from gaining access to his trial strategy. While the Court recognized defense counsel's obligation to conduct a thorough investigation of a defendant's background, the Court held that the trial court must consider the reasonableness of the investigation.  The Court stated that it was not convinced that a sufficient showing has been made as to the necessity for defense counsel to undertake a second trip to Vietnam for another investigation as approved by the trial court.)
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Opinions Released March 16, 2004

• DECISION ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON TUESDAY,  MARCH 16, 2004

 
• Ex parte Anonymous,

No. 1030860 (Ala. Mar. 16, 2004)
(abortion; minors; judicial by-pass of parental consent; The Supreme Court denied the petition for writ of certiorari without opinion.  Justice Johnstone wrote a dissenting opinion stating that the appellate courts of this state "continue to flout the abortion rights of minors.")

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Opinions Released March 12, 2004

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  MARCH 12, 2004

 
• Taylor v. Smith,

No. 1011673 (Ala. Mar. 12, 2004)
(personal injury; automobile accident; action against doctor of driver; existence of a duty; On April 4, 2000,  Glenda Ennis visited The Gadsden Treatment Center, Inc. ("the Center"), which operated under the directorship of Dr. Kenny E. Smith, to begin treatment of an opiate addiction.  Her treatment was provided on an outpatient basis, and included the administration of methadone.  From April 4, 2000, to October 4, 2000, the Center performed 14 urinalyses to monitor the substances Ennis was using.  Thirteen of those urinalyses revealed the presence of either marijuana, benzodiazepines, or both, in addition to methadone.  Moreover, clinical notes kept by the Center, dated June 21, 2000, and July 25, 2000, reflect that Ennis was not  attending group counseling sessions and "report[ed] having no desire to stop using."  Ennis visited the Center virtually every day from April 4, 2000, until September 8, 2000, and she received a dose of methadone at each visit.  After receiving her daily dose of methadone at the Center, Ennis would drive herself home, an approximately 90-minute trip.  On September 8, 2000, Ennis received 85 milligrams of methadone at approximately 6:00 a.m. and drove away from the Center.  At 7:23 a.m., Ennis's automobile crossed into the lane of oncoming traffic and collided with an automobile being driven by Lola Taylor.  Lola Ann Taylor and her husband, Billy J. Taylor, sued Dr. Smith and others.  The Taylors sought damages for Lola's personal injuries and Billy's loss of consortium.  The essence of the Taylors' complaint is (1) that Dr. Smith knew of the pervasive presence of prescription and nonprescription drugs, other than methadone, in Ennis's bloodstream at the time the methadone was administered; (2) that Dr. Smith, nevertheless, administered methadone on the morning of the accident; and (3) that the accident occurred because of Dr. Smith's negligent monitoring, supervision, and management of Ennis's treatment.  Dr. Smith moved for a summary judgment on the sole ground that "no duty existed between [him] and [Lola Taylor]."  In opposition to Dr. Smith's summary-judgment motion, the Taylors filed the affidavit of Dr. Nathan R. Strahl, "Medical Director at Raleigh Methadone Clinic."  Dr. Strahl stated, among other things:  "Combining methadone with benzodiazepines and marijuana can cause serious and potentially dangerous side effects....  A reasonably foreseeable consequence of an individual operating a motor vehicle while combining methadone with benzodiazepines and marijuana is that a vehicle accident may occur and other persons may be injured.  A medical director of a methadone clinic should have knowledge of this."  The trial court granted Dr. Smith's summary-judgment motion on the "ground that a doctor does not owe a legal duty to a third party non-patient," and certified the judgment as  final, pursuant to Ala. R. Civ. P. 54(b).  The Taylors appealed, contending that the trial court erred in concluding that Dr. Smith owed Lola no duty. HOLDING:  The Supreme Court reversed.  The Court held that considering the distance and frequency of Ennis's travel in this case, as well as Ennis's persistent substance abuse, a vehicle accident was reasonably foreseeable. The Court held that the Alabama Medical Liability Act of 1975 and the Alabama Medical Liability Act of 1987 apply only to medical-malpractice actions and do not bar lawsuits by nonpatients based on theories other than medical malpractice.  The Court held that because the Taylors are seeking recovery for damages and injuries arising out of an automobile accident, not "medical injuries," this is not a medical-malpractice action.  The Court concluded that the administration of methadone to an outpatient who has consistently tested positive for other drugs is an "affirmative act," which, in the absence of strong countervailing public-policy reasons, gives rise to a duty to third-party nonpatient motorists who may be injured in an automobile accident with the patient.  The Court held that the duty of care owed by the director of a methadone-treatment center to his patient extends to third-party motorists who are injured in a foreseeable automobile accident with the patient that results from the director's administration of methadone.)
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• Osborn v. Champion Int'l Corp.,

No. 1020276 & 1020325  (Ala. Mar. 12, 2004)
(establishment of a public road by prescription; After Champion International Corporation and  International Paper Company (collectively "Champion-International") insisted that the plaintiff pay Champion-International for an easement before using a road located on land owned by Champion-International as a route for the construction of a water line and a power line to the plaintiff's adjoining land, the plaintiff sued Champion-International for a declaratory judgment and money damages. The plaintiff claimed that the road on the Champion-International land had become a public road through prescriptive use of the road by the public for more than 20 years. The plaintiff further claimed that, because the road on the Champion-International land was a public road, he was entitled to use it as a route for constructing the water line and power line to his land without paying Champion-International for an easement.  Champion-International moved for a summary judgment, which the trial court denied without stating a rationale. Thereafter, the trial court conducted a bench trial and entered judgment for Champion-International on the basis of evidence ore tenus at the bench trial.  HOLDING:  The Supreme Court affirmed.  The Court held that the evidence and lack of evidence tended to prove only that the public had used the road and did not tend to prove that the use was adverse, under a claim of right, rather than permissive.)
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• SouthTrust Bank v. Copeland One, L.L.C.,

No. 1020727 (Ala. Mar. 12, 2004) (additional opinion on application)
(The Supreme Court declined to consider on rehearing an argument asserted in the trial court but not asserted by SouthTrust Bank in its briefs on original submission.)
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--(The original opinion released in SouthTrust Bank on Sept. 5, 2003, is also on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

• State Farm Mut. Auto. Ins. Co. v. Nix,

No. 1021594 (Ala. Mar. 12, 2004)
(misrepresentation; suppression; negligent failure to procure insurance; employer liability for punitive damages; Ala. Code §6-11-27(a); Adam Nix telephoned State Farm Mutual Automobile Insurance Company ("State Farm") agent Pam Freeman's office to procure automobile insurance on a new vehicle, which he had decided to lease.  He spoke with Georgianne Cutchen, Freeman's licensed staff assistant.  According to Nix, at the end of their conversation, Cutchen told him that the vehicle was insured.  Cutchen, on the other hand, testified she told Nix that the vehicle was insured for only 30 days and that he would have to complete an application for insurance and pay a premium to obtain coverage on the vehicle beyond 30 days.  Nix proceeded to lease the vehicle.  Fifty-four days after his conversation with Cutchen, Nix had an accident, damaging the vehicle.  When Nix's mother telephoned Freeman's office to report the accident, she was informed that the vehicle was not insured.   Nix sued State Farm and Freeman.  Ultimately, Nix's misrepresentation, suppression, and negligent-failure-to-procure-insurance claims were submitted to a jury.  The jury returned a verdict against State Farm and Freeman, assessing compensatory damages of $15,325.54 and punitive damages of $200,000.  In response to a posttrial motion filed by State Farm and Freeman, the trial court remitted the punitive-damages award to $76,627.  State Farm and Freeman appealed.  HOLDING:  The Supreme Court concluded that Nix's compensatory-damages claims were properly submitted to the jury for factual resolution, and that the trial court's judgment must be affirmed insofar as the compensatory-damages award is concerned.  However, the Court held that the trial court erred in submitting Nix's punitive-damages claim to the jury.  The Court concluded that Nix failed to introduce any legally sufficient evidence to meet his burden under Ala. Code §6-11-27(a) because Nix offered no evidence indicating that Cutchen, a licensed and trained staff assistant, was unfit to perform the duties of her employment, no evidence indicating that State Farm or Freeman authorized or ratified Cutchen's conduct, and no evidence indicating that Cutchen's actions benefited State Farm or Freeman in any manner.)
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• Smith v. The Huntsville Times Co.,

No. 1021999 (Ala. Mar. 12, 2004)
(defamation; police officer; public official; actual malice; The Huntsville Times Company, Inc. ("the Times") published on its editorial page the following "Commentary" written by David Person, an editorial writer for the Times, which described Glen Park neighborhood resident Helen Griffin's accusations of Huntsville Police Department crime scene investigator Edward Smith's alleged conduct toward her, which included a claim by Griffin that Smith "called her a prostitute, a low-life and a nigger" and "cursed her, using the five-letter word for a female dog."  The article noted that it was not clear if Smith was on duty at the time.  Smith filed a three-count complaint against the Times and Person.  The counts alleged (1) "defamation/libel," (2) "false light invasion of privacy," and (3) "defamation involving profession."  The Times and Person moved for a summary judgment on the ground that Smith is a "public official," and, therefore, that the defendants are entitled to the constitutional protection recognized in New York Times Co. v. Sullivan, 376 U.S. 254 (1964).  The trial court granted the motion for summary judgment, holding that Smith, as a police officer, is a public official.  The trial court concluded that Smith failed to present clear and convincing evidence of actual malice.  HOLDING:  The Supreme Court affirmed.)
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• Ex parte D.L.J.,

No. 1022192 (Ala. Mar. 12, 2004)
(The Supreme Court quashed the petition for writ of certiorari without opinion, but the Court stated that in quashing the petition, it does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion.)
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• Ex parte Gartman,

No. 1030318 (Ala. Mar. 12, 2004)
(criminal; The Supreme Court denied the petition for writ of certiorari without opinion.  Justice Johnstone, joined by Justice Harwood, wrote a concurring opinion critical of the petition for writ of certiorari as not complying with "virtually every critical requirement" of Ala.R.App.P. 39 and as "ignor[ing] the most elementary of the fundamentals of advocacy – that the advocate say what he or she wants and why he or she wants it.")
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Opinions Released March 5, 2004

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  MARCH 5, 2004

 
• Walls v. Alpharma USPD, Inc.,

No. 1010645 (Ala. Mar. 5, 2004)
(product liability; AEMLD; duties of pharmacist; learned-intermediary doctrine; certified questions from the United States District Court for the Northern District of Alabama; "A.  Does a pharmacist have a duty to warn of foreseeable injuries from the use of the prescription drug he/she is dispensing under AEMLD [Alabama Extended Manufacturer's Liability Doctrine], common-law negligence or other Alabama law?" and "B.  If so, is the duty to provide adequate warnings limited to possible injuries to the pharmacy's customer or does it extend to third-parties whose injuries are reasonably foreseeable at the time the prescription is filled?"  "In 1986, Ms. Judith Walls and her husband, Alan Adams, were treated for scabies by Dr. Cynthia Lucy.  Dr. Lucy prescribed Lindane lotion for Mr. Adams, but prescribed a different treatment for Ms. Walls, who was pregnant.  Mr. Adams's prescription was filled at a Revco pharmacy.  At some later time, when Ms. Walls informed Dr. Lucy her treatment was not working, Dr. Lucy directed Ms. Walls to use Mr. Adam's Lindane lotion and Ms. Walls did use the Lindane lotion prescribed to her husband.  On January 21, 1987, Ms. Walls gave birth to Brittany Adams, who suffers from numerous medical conditions.  Ms. Walls claims Brittany's medical problems were caused by Ms. Walls' use of Lindane lotion during the pregnancy.  The defendants are the alleged manufacturer and sellers of the Lindane lotion.   The plaintiffs allege the defendant pharmacies negligently and wantonly placed a defective and unreasonably dangerous product, Lindane, into the stream of commerce and failed to provide adequate warnings of the risks associated with Lindane and failed to issue notice or recall regarding the alleged hazard.  The defendants claim a pharmacy's duty is limited to accurately filling the prescription as provided by a physician and that the physician, as a learned intermediary, is the conduit for providing manufacturer's warnings to the patient.  They further argue any duty to warn does not extend to the fetus of the wife of the pharmacy's customer whose prescription was filled by the pharmacy.  HOLDING:  The Supreme Court answered both questions in the negative.  The Court held that the learned-intermediary doctrine forecloses any duty upon a pharmacist filling a physician's prescription, valid and regular on its face, to warn the physician's patient, the pharmacist's customer, or any other ultimate consumer of the risks or potential side effects of the prescribed medication except insofar as the prescription orders, or an applicable statute or regulation expressly requires, that an instruction or warning be included on the label of the dispensed medication or be otherwise delivered.  The Court held that to the extent that the learned-intermediary doctrine applies, foreseeability of injury is eliminated as a basis for liability upon the pharmacist.  The Court held that to the extent that the learned-intermediary doctrine applies, the duty to determine whether the medication as prescribed is dangerously defective is owed by the prescribing physician and not by the pharmacist filling the prescription.)
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• Baldwin v. Branch,

No. 1011214 (Ala. Mar. 5, 2004)
(trusts; lapse of gift; On September 2, 1992, Claude H. Baldwin, Jr. ("Claude") executed a declaration of trust creating a revocable trust.  He appointed himself trustee.  The declaration of trust stated that upon Claude's death or incapacity, O.W. Irwin would succeed him as trustee, that all net trust income was to be paid to Claude during Claude's lifetime, that Claude retained the right to remove assets from the trust, and that following Claude's death the successor trustee was to make certain dispositions from the trust, including one to his sister Bernice.  Bernice predeceased Claude, leaving two children, Miles Branch and Suzanne B. Ligon.  Claude died testate on January 4, 2001; the trust had never been amended.  On March 13, 2001, the conservator of Claude's estate filed in the probate court a final settlement of his conservatorship.  On February 12, 2001, Claude's widow, Julia Watson Baldwin, filed an action in the Shelby Circuit Court seeking a judgment declaring what assets were in Claude's estate and what assets, if any, were in the Baldwin Trust.  On March 16, 2001, Claude's son filed an answer and a cross-complaint in Julia's declaratory-judgment action.  The cross-complaint filed by Claude's son is the subject of this appeal.  Claude's son argued in his cross-complaint that the distribution to be made to Bernice from the Baldwin Trust had lapsed upon Bernice's death.  Bernice's children, Miles Branch ("Branch") and Suzanne B. Ligon ("Ligon"), filed an answer to the cross-complaint in which they argued that as Bernice's children they are entitled to her share of the Baldwin Trust.  Claude's son and Branch and Ligon moved for a summary judgment.  Branch and Ligon attached to their motion an affidavit by the attorney who drafted the Baldwin Trust and Claude's will; the affidavit stated that Claude had intended Bernice's children to take under the trust in the event Bernice predeceased him.  Claude's son moved the trial court to strike the affidavit on the ground that the Baldwin Trust was not ambiguous and therefore parol evidence was not necessary to its interpretation; the trial court granted the motion, and on February 1, 2002, entered a summary judgment in favor of Branch and Ligon upholding their claim to Bernice's share of the Baldwin Trust.  HOLDING:  The Supreme Court affirmed.  The Court noted that while Ala. Code §43-8-224 operates, in the case of a will, to prevent a lapse when a devisee dies before the testator, there is no similar statutory provision to prevent a lapse of a gift made in a revocable trust.  However, the Court held that a gift in a trust to a designated beneficiary vests when the trust is created, even if the trust is a revocable trust.  The Court held that because the interest was vested, Bernice's estate was entitled to her share of the trust upon Claude's death.  Thus, the Court held that Branch and Ligon are entitled to Bernice's share of the trust property.  (Note:  Justice Lyons wrote a concurring opinion in which he paid tribute to the attorney for the unsuccessful party in this case, D. Harry Markstein, Jr., who, according to Justice Lyons, briefed and argued this case on March 18, 2003, at the age of 90 with "zeal, clarity of thought, and legal scholarship that lawyers many years his junior would do quite well to emulate."))
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• Ex parte Key,

No. 1020677 (Ala. Mar. 5, 2004)
(criminal; capital murder; jury instruction; aggravating factors; "especially heinous, atrocious or cruel";  Gary Frank Key was convicted in October 1999 of murder made capital because he shot and fatally wounded the victim, his ex-wife, while she was a passenger in a vehicle.  The jury, by vote of 12-0, recommended that Key be sentenced to death.  After conducting its own sentencing hearing, the trial court found that the aggravating circumstances outweighed the mitigating circumstances and  sentenced Key to death.  The Court of Criminal Appeals affirmed as to the conviction and remanded the case with directions to the trial court to correct deficiencies in its sentencing order.  On remand, the trial court stated that it found three statutory aggravating circumstances to exist.  One of those aggravating circumstances was that the "capital offense was especially heinous, atrocious or cruel compared to other capital offenses."  Based upon the amended sentencing order of the trial court, the Court of Criminal Appeals, on return to remand, affirmed Key's sentence.  HOLDING:  The Supreme Court affirmed.  The Court held that the failure of the trial court to provide comparative criteria of other capital offenses in its instruction to the jury did not amount to error.  The Court held that the evidence supports the finding that the victim suffered psychological torture for an appreciable period.  The Court held that the evidence supports the trial court's finding that the victim experienced appreciable suffering after a swift assault that resulted in her death.  The Court concluded that while the fact that the victim was shot five times is atrocious, the fact that the victim endured psychological torture before she died and appreciable suffering after she was shot and before she died separates this crime from an ordinary murder.  The Court concluded that the particular facts of the case clearly establish beyond a reasonable doubt that this crime was "unnecessarily torturous" to the victim and that it was therefore "especially heinous, atrocious or cruel.")
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• Ex parte Harris,

No. 1020899 (Ala. Mar. 5, 2004)
(criminal; murder; search and seizure; harmless error; A passerby found Jonathon Davis's body lying in some bushes.  Davis had been shot in the head.  The passerby flagged down Officer Colletta Shepard, who was patrolling in the area.  Officer Shepard followed the passerby to where Davis's body was lying.  Officer Shepard then "called dispatch and told them to notify" the evidence technician, the sergeant on duty, additional officers, the lieutenant, and the emergency medical technician that a body had been discovered.  Officer Shepard waited at the scene until several other officers arrived.  Officer Shepard and three other officers went to the house closest to where Davis's body was found; it was across the street from where the body was found and was shared by Roland Edwin Harris and Davis.  The officers saw what appeared to be blood on the front lawn and sidewalk in front of the house and on the stairway and front porch of the house.  It also appeared that the body had been dragged across the front lawn.  Officer Shepard knocked on the door; when no one answered, she and the three other officers entered the house.  The officers went through all of the other rooms in the house before they found Harris in a  bedroom, asleep on the bed, with a rifle propped next to the bed.  There was also a .38-caliber Smith & Wesson Special revolver on top of a cooler in the bedroom; the revolver had four live rounds and one spent round in it.  Officer Shepard took Harris outside and placed him in the back of a police car.  A neighbor told the officers that Harris and Davis had had an argument.  Officer Shepard placed Harris under arrest.  Police officers, including an evidence technician, then reentered the house, searched it, and seized evidence.  Harris moved to suppress the evidence seized as a result of the warrantless search of his house and to suppress statements he made to police officers after they arrested him.  The trial court denied Harris's motions.  A jury found Harris guilty of murder.  Harris appealed his conviction.  The Court of Criminal Appeals affirmed Harris's conviction, without an opinion.    HOLDING:   The Supreme Court affirmed.  The Court concluded that any